Klink v Environmental Protection Authority
[2019] NZHC 3161
•3 December 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-170 [2019] NZHC 3161
UNDERThe Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act)
IN THE MATTER Of an appeal under s 105 of the Act BETWEEN KELLY MOANA KLINK
Appellant
ANDENVIRONMENTAL PROTECTION AUTHORITY
First Respondent
AND COASTAL RESOURCES LIMITED
Second Respondent
CIV-2019-485-288
UNDER The Judicial Review Procedure Act 2016
BETWEENSOCIETY FOR THE PROTECTION OF AOTEA COMMUNITY AND ECOLOGY LIMITED
Applicant
ANDENVIRONMENTAL PROTECTION AUTHORITY
First Respondent
AND COASTAL RESOURCES LIMITED
Second Respondent
Hearing: 22 and 23 July 2019
Appearances: S J Grey and V Toki for the Appellant and Applicant A S Butler and K J Jordan for the First Respondent
M J Slyfield and M R K Redding for the Second Respondent
Judgment: 3 December 2019
KLINK v ENVIRONMENTAL PROTECTION AUTHORITY and COASTAL RESOURCES LIMITED [2019]
NZHC 3161 [3 December 2019]
JUDGMENT OF CULL J
Table of Contents
Para No.
Background [3]
Legal principles [13]
The EEZ Act [13]
The appeal [24]
The issues [26]
The principles of the Treaty of Waitangi [29] The process leading up to the granting of the consent application [34] The Māori Advisory Committee’s advice [40]
The hearing in Auckland [48]
The Authority’s Decision [54]
Analysis [56]
Conclusion [76]
The other claims [78]
Existing interests [79]
International obligations [84]
Adaptive management conditions [87]
Overview [95]
Result [100]
Costs [102]
[1] This case concerns the grant of a marine dumping consent, permitting the dumping of increased dredged material from Auckland, Northland, and Waikato harbours into the exclusive economic zone east of Aotea Great Barrier Island (Great Barrier Island). These proceedings comprise an appeal and a judicial review of the decision of the Environmental Protection Authority (the Authority) to grant the application by Coastal Resources Ltd for a marine dumping consent under s 20G of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act).
[2] The appeal and the application for judicial review raise similar and overlapping grounds of errors of law and procedural unfairness. Coastal Resources opposes both and the Authority appeared to assist the Court.
Background
[3] Ms Klink represents Ngāti Rehua Ngatiwai ki Aotea (Ngāti Rehua), the local iwi of Great Barrier Island. Coastal Resources initially protested Ms Klink’s standing, but did not pursue this at the hearing. Section 105 of the EEZ Act provides that, aside from the applicant for the consent, only those who submitted on the consent application may bring an appeal.1 Ngāti Rehua made submissions to the Authority in the decision-making process although Ms Klink did not. As Ms Klink is a kaumatua of Ngāti Rehua, the parties agreed she has standing to bring this appeal.2
[4] The Society for the Protection of Aotea Community and Ecology Inc (the Society) is an incorporated society formed in May 2018. Its purpose is to protect the Great Barrier Island community and ecology, and to act as a voice for community environmental concerns. Its rules provide for the Society “to do anything lawfully necessary or helpful to… protect and enhance [its] motu ecology to ensure indigenous species flourish”. Coastal Resources accepted the Society had standing.
[5] The Authority is the regulatory body for activities with environmental impact being carried out in New Zealand’s exclusive economic zone. Under the EEZ Act, a person must apply for a marine consent to carry out certain activities. In this case, the dumping of dredged material is a restricted activity under s 20G and can only be carried out if authorised by a marine consent. The Authority is the prescribed decision- maker. This role can be delegated by the Authority’s Board to a decision-making committee.3
[6] Coastal Resources is an incorporated company, which forms part of the Kaipara Ltd group of companies. It held an existing marine consent to dump to 50,000 m3 per year of dredged material in the area east of Great Barrier Island known as the Northern Disposal Area. On 5 June 2018, Coastal Resources lodged an application under s 20G of the EEZ Act and reg 33(a) of the Exclusive Economic Zone and Continental Shelf (Environmental Effects – Discharge and Dumping) Regulations
1 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 [EEZ Act], s 105(1).
2 Proprietors of Wakatu v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 at [494] and [807].
3 EEZ Act, s 16; and Crown Entities Act 2004, s 103.
2015 (the Regulations) for a 35 year marine consent to dump up to 250,000 m2 per year. The Authority notified the application on 30 July 2018 under s 46 of the EEZ Act, and the submission period closed on 10 September 2018.
[7] The Society says that 18 of its current members made submissions opposing the granting of the consent.4 Of the 76 submissions lodged with the Authority, 45 were from Great Barrier Island, representing 60 per cent of the submitters.5 These included submissions from iwi, hapū and other associations of tangata whenua as well as other community interests. The submitters opposed the grant of the consent due to concerns about the adequacy of information and consultation, adverse effects on the environment associated with the plume from the deposit and turbidity, biosecurity concerns, the failure to adequately consult or consider cultural values and knowledge and the inadequate protection of wāhi tapu.
[8] The Authority appointed a decision-making committee to hear from the submitters on its behalf. In this judgment I will refer to the decision-making committee as the Authority. Despite the nature of the opposition to the application and the relatively high numbers of submissions from the Great Barrier Island community, the Authority’s hearing was held in Auckland.
[9] The Authority conducted the hearing over five days in which evidence and submissions were heard.6 On multiple occasions, the Authority sought further information from Coastal Resources under s 54(1) of the EEZ Act. It also commissioned independent reports and requested advice under s 56. The hearing was adjourned on 4 December 2018 to enable further submissions and replies to be made. The hearing was then closed on 17 January 2019 after the Authority decided it had sufficient information on which to make its determination on the application.
4 Coastal Resources contest this. They say it is unclear who the Society represents, and there is no evidence of the current membership.
5 The Authority in its decision mistakenly records that 31 submissions were received from Great Barrier Island.
6 The Society also claimed there was procedural unfairness or breach of natural justice, because of the lack of expertise and appointment of the decision making committee. This submission was not pursued at the hearing.
[10] On 5 February 2019, the application was granted under s 62(1) of the EEZ Act (the Decision). In determining the application, the Authority held that the adverse effects of the activity on the environment and any existing interests will be negligible. It considered that the suite of conditions imposed by the Authority will ensure that any adverse effects are appropriately avoided, remedied and mitigated.
[11] Coastal Resources was then issued with consent number EEZ 100015 to dump dredged material in the exclusive economic zone. The consent allows the dumping of up to 250,000m3 of dredge material in any consecutive 12-month period from Auckland, Northland and Waikato regions to the Northern Disposal Area in the exclusive economic zone east of Great Barrier Island.7 This is five times more than its existing consent.
[12] As noted above, the Society and Ms Klink submit that the Decision was both unlawful and procedurally unfair.
Legal principles
The EEZ Act
[13] The purposes of the EEZ Act are twofold: to promote the sustainable management of the natural resources of the exclusive economic zone and continental shelf;8 and to protect the environment from pollution by regulating or prohibiting the discharge of harmful substances and the dumping of waste or other matter.9 This Court has held that both purposes are of equal value and neither can be ignored.10
[14] Dumping of dredged material is regulated under s 20G of the EEZ Act and reg 33 of the Regulations. A person may only dump dredged material if so authorised
7 Coastal Resources submits this figure is 250,000m2, not 250,000m3. The precise size of the Northern Disposal Area is also disputed.
8 Sustainable management is defined under s 10(2), and means “managing the use, development, and protection of natural resources in a way, or at a rate, that enables people to provide for their economic well-being while sustaining the potential of natural resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and safeguarding the life-supporting capacity of the environment; and avoiding, remedying, or mitigating any adverse effects of activities on the environment.”
9 EEZ Act, s 10.
10 The Taranaki-Whanganui Conservation Board v The Environmental Protection Authority [2018] NZHC 2217 [The TTRL Decision] at [398].
by a marine consent.11 It is classified as a discretionary activity and is publicly notifiable.12
[15] Section 11 of the EEZ Act implements New Zealand’s international obligations with respect to the marine environment. This Court has considered that compliance with the EEZ Act is the way that Parliament has decided to discharge New Zealand’s obligations under the various international conventions.13 None of the international conventions are incorporated directly into New Zealand’s domestic law.
[16] Section 12 of the EEZ Act governs the application of the principles of the Treaty of Waitangi:
12 Treaty of Waitangi
In order to recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi for the purposes of this Act, –
(a)section 18 (which relates to the function of the Māori Advisory Committee) provides for the Māori Advisory Committee to advise marine consent authorities so that decisions made under this Act may be informed by a Māori perspective; and
(b)section 32 requires the Minister to establish and use a process that gives iwi adequate time and opportunity to comment on the subject matter of proposed regulations; and
(c)sections 33 and 59, respectively, require the Minister and a marine consent authority to take into account the effects of activities on existing interests; and
(d)section 46 requires the Environmental Protection Authority to notify iwi authorities, customary marine title groups, and protected customary rights groups directly of consent applications that may affect them.
[17] This section was considered in The Taranaki-Whanganui Conservation Board & Others v The Environment Protection Authority (the TTRL Decision) where Churchman J, in rejecting a general application of Treaty principles, held that “[t]he statute itself defines how the Treaty is to be incorporated.”14
11 Section 20G(3)(a).
12 Sections 7A, 36 and 52.
13 The TTRL Decision, above n 10, at [171].
14 At [241].
[18] Section 12 emphasises the Crown’s responsibility to give effect to the principles of the Treaty by specifying that decisions under the EEZ Act must be informed by a Māori perspective by the Māori Advisory Committee. Equally, the Authority is required to notify iwi authorities, customary marine title groups and protected customary rights groups of applications that may affect them. Section 12 and ss 18 and 46 assume importance in the context of this dual proceeding.
[19] The concept of “existing interests” in s 12(c) ensures persons with legally established interests are included in relevant processes and the impact on their interests are considered by decision-makers. “Existing interests” is defined in the EEZ Act as meaning the interest a person has in:15
(a)any lawfully established existing activity, whether or not authorised by or under any Act or regulations, including rights of access, navigation, and fishing:
(b)any activity that may be undertaken under the authority of an existing marine consent granted under section 62:
(c)any activity that may be undertaken under the authority of an existing resource consent granted under the Resource Management Act 1991:
(d)the settlement of a historical claim under the Treaty of Waitangi Act 1975:
(e)the settlement of a contemporary claim under the Treaty of Waitangi as provided for in an Act, including the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992:
(f)a protected customary right or customary marine title recognised under the Marine and Coastal Area (Takutai Moana) Act 2011
[20] Sections 59(2) and 59(2B) of the EEZ Act sets out the considerations which a decision-maker must take into account with respect to marine dumping consents. Where the application relates to a s 20 activity, as here, the marine consent authority must take into account:16
(a)any effects on the environment or existing interests of allowing the activity, including—
(i)cumulative effects; and
15 Section 4.
16 Section 59(2). See also the mandatory considerations in s 59(2B).
(ii)effects that may occur in New Zealand or in the waters above or beyond the continental shelf beyond the outer limits of the exclusive economic zone; and
(b)the effects on the environment or existing interests of other activities undertaken in the area covered by the application or in its vicinity, including—
(i)the effects of activities that are not regulated under this Act; and
(ii)effects that may occur in New Zealand or in the waters above or beyond the continental shelf beyond the outer limits of the exclusive economic zone; and
…
(d)the importance of protecting the biological diversity and integrity of marine species, ecosystems, and processes; and
(e)the importance of protecting rare and vulnerable ecosystems and the habitats of threatened species; and
…
(h) the nature and effect of other marine management regimes; and
…
(j)the extent to which imposing conditions under section 63 might avoid, remedy, or mitigate the adverse effects of the activity; and
(k)relevant regulations (other than EEZ policy statement); and
(l)any other applicable law (other than EEZ policy statements); and
(m)any other matter the marine consent authority considers relevant and reasonably necessary to determine the application.
[21] Further mandatory considerations applicable to marine dumping consents are included in s 59(3):17
(3)The marine consent authority must have regard to— (aa) EEZ policy statements; and
(a) any submissions made and evidence given in relation to the application; and
17 Emphasis added.
(b) any advice, reports, or information sought under this Part and received in relation to the application; and
(c) any advice received from the Māori Advisory Committee.
[22] As s 59(3)(c) above makes plain, the Authority must have regard to any advice received from the Māori Advisory Committee. It is a mandatory consideration for the Authority to ensure the Māori Advisory Committee’s advice is not lightly set aside or ignored.
[23] Finally, s 64(1AA)(a) effectively prohibits a consent authority from using an adaptive management approach for marine discharge consents, marine dumping consents, and submarine pipeline abandonment. Adaptive management and its definition under the EEZ Act was also considered by this Court in the TTRL Decision, where Churchman J found that “the key to adaptive management involves “allowing an activity to be carried out so that its effects can be monitored and assessed and the activity modified or discontinued accordingly”.18 The Court reinforced that there can be no doubt that a decision-making committee assessing marine discharge consents is not permitted to use an adaptive management approach.19
The appeal
[24] As noted, this hearing proceeded on a dual basis of an appeal on an error of law and judicial review on errors of law and procedure. I have referred to both the appellant, Ms Klink, and to the applicant, the Society, as the claimants in this decision.
[25] Section 105 limits appeal rights under the EEZ Act to submitters and the applicant for a consent. As established, Ms Klink’s standing as kaumatua of Ngāti Rehua, a submitter, is no longer contested. The scope of the appeal right for a submitter is not limited to matters raised in the submission, but appeals are limited to questions of law.20 This confines the appeal points to incorrect understandings of the law, conclusions not based on the evidence or which could not have reasonably been
18 The TTRL Decision, above n 10, at [402].
19 At [347].
20 Section 105(4).
reached on the evidence, failing to consider a relevant matter, and/or taking into account an irrelevant matter.21
The issues
[26] As is often the case, the review grounds claiming errors of law and procedural unfairness overlap considerably and merge to a large degree.22 In this case, the claimants have filed an appeal also with the same grounds as those claimed by way of judicial review.23 Underlying the grounds of appeal and review is the claimants’ allegation that the errors of law occurred because of the Authority’s failure to take into account relevant considerations.24
[27] The following is a summary of the relevant issues arising in both the appeal and the judicial review proceeding:
(a)Did the Authority make errors of law in failing to take into account relevant considerations and/or take into account considerations that were irrelevant by:
(i)failing to give effect to the principles of the Treaty of Waitangi as required by s 12 of the EEZ Act;
(ii)overlooking the claimants’ existing interest under the Marine & Coastal Area (Takutai Moana) Act 2011 (MACA);
(iii)failing to consider the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), as required by s 11; and/or
21 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[25].
22 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 548 and Budget Rent A Car Ltd v Auckland Regional Council [1985] 2 NZLR 414 (CA) at 420.
23 With the exception of the adaptive management ground, which I deal with at the end of this decision.
24 The claimants initially pleaded that the Authority’s Decision was unreasonable. This ground of review was amended to unlawfulness, because of the Authority’s failure to take into account all relevant considerations and the consideration of irrelevancies. The Society did not plead or argue unreasonableness as a ground of review. The Society also pleaded substantive unfairness, which was not pursued at the hearing.
(iv)taking into consideration adaptive management type conditions, contrary to s 60 of the EEZ Act?
(b)Was the process adopted by the Authority procedurally unfair and thereby unlawful in:
(i)giving inadequate notification of the application;
(ii)failing to give consistent access and treatment of different tangata whenua entities; and/or
(iii)holding hearings in a location, which limited the participation (access to justice) for the claimants?
[28] Because of the considerable overlap between the two claims, both in fact and in law, I deal with both the errors of law and procedural unfairness together. The principal argument is the failure to give effect to the principles of the Treaty of Waitangi.
The principles of the Treaty of Waitangi
[29] Under s 12 of the EEZ Act, the Authority must consider advice provided by the Māori Advisory Committee to inform its decision-making with a Māori perspective.25 It must use a process that gives iwi adequate time and opportunity to comment on the subject matter of proposed regulations,26 and it must consider the effects of activities under determination on existing interests.27 The Authority must also notify iwi authorities and customary rights groups of applications which may affect them.
[30] The claimants submit that s 12 restates the Crown’s overarching responsibility to give effect to the principles of the Treaty by making special provision for the consideration of cultural engagement and identification and assessment of cultural effects over and above other effects. The Authority, they say, ought to have
25 EEZ Act, ss 59(3)(c), 12(a) and 18.
26 Section 12(b).
27 Section 12(c).
acknowledged, as a part of the duty of partnership between Māori and the Crown enshrined in the Treaty, that there was an obligation on the Authority to consult with Ngāti Rehua in making its determination, as they have mana whenua of the land.
[31] Further, the claimants submit that the Māori Advisory Committee report should have been taken into account, and the definition of “existing interests” in both ss 4 and 12 of the EEZ Act should have been interpreted consistently with the Treaty by being read widely to include the iwi’s claims under MACA.28 This point is dealt with under ‘The other claims’ later in this judgment.29
[32] Coastal Resources disputes that the Authority was required to give effect to the principles of the Treaty in a general sense. It says that the Authority must comply with the particulars in s 12, which it did. Coastal Resources disputes that there was a failure to adequately and properly consult with the claimants or other Great Barrier Island tangata whenua or residents. It submits the EEZ Act does not require a consent applicant to consult but, as a matter of good practice, Coastal Resources undertook a thorough consultation process, which the Authority concluded met the requirements of the EEZ Act. Coastal Resources also refutes that the Authority failed under s 59(3)(c) to consider advice given to it by the Māori Advisory Committee because the Decision records the advice the Māori Advisory Committee gave to the Authority and the Authority’s evaluation of it.
[33] To understand how these claims fit into the process that was undertaken, it is necessary to canvass the background to the consent application and the decision-making process carried out by the Authority and Coastal Resources in further detail.
The process leading up to the granting of the consent application
[34] Coastal Resources’ application for marine consent was filed with the Authority in July 2018, together with an impact assessment as required under ss 38 and 39 of the EEZ Act. The impact assessment report concluded that given the nature of the activity
28 Relying on Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC).
29 At [79]-[83].
and its location, there was no potential significant risk to fin fish, mammals or birds. Likewise, no potential effects on recreation activities were identified and there would be nil or negligible visual and landscape effects and effects on human health.
[35] The impact assessment report also described the consultation undertaken by Coastal Resources with persons it had identified whose “existing interests” were likely to be adversely affected by the activity.30 Coastal Resources sent a Consultation Information Pack to a range of parties who may have had an interest in the area, including representatives of Ngāti Rehua Trust, who responded and said they have the mana whenua of Great Barrier Island and were going to consider the application further. Various recommendations were made in the impact assessment report to enable information to be more available to interested iwi, and to provide results from, and receive feedback on, the on-going monitoring of the activity in the future.
[36] Under s 46 of the EEZ Act, the Authority notified iwi authorities, customary and marine title groups and protected customary rights groups, as required under s 12(d) of the Act. This totalled 1,223 persons whom the Authority believed might be affected by the consent application.
[37] Independently, Coastal Resources identified five iwi which it believed may be affected by the application, including Ngāti Rehua, and engaged with certain representatives throughout the application process. The Authority identified a further 80 iwi authorities and served notice on them directly. Coastal Resources submits this notification by both itself and the Authority to the interested iwi satisfied the requirement in s 12(d) to notify iwi authorities.
[38] Submissions then opened on 30 July 2018 and were open until 10 September. The Authority operated on the mistaken assumption that the majority of submissions came from Auckland rather than Great Barrier Island. However, as part of the preparation for this hearing it was discovered that 60 per cent of the submitters were from the island.
30 As required under the EEZ Act, s 39(1)(c).
[39] Ms MacDonald made submissions and appeared before the hearing as the representative of Ngāti Rehua. In its written submissions to the Authority, Ngāti Rehua’s principle challenge to the consent application was the degradation of “te taiao, mana moana, and kaitiakitanga”. Ngāti Rehua have mana whenua and mana moana of Great Barrier Island, having occupied the islands for hundreds of years. The iwi defines itself by its relationship to the water, and Ms McDonald submitted that Coastal Resources showed no respect for Ngāti Rehua’s rohe moana, as the application seeks to increase both the length of Coastal Resources’ operations and the size and quantity of dumping of dredged material. She made three further points:
(a)the application includes Ngāti Rehua’s cultural and historical area identified within its Hapū Management Plan as the “dumping-point” in the consent application;
(b)the application will destroy Ngāti Rehua’s traditional fishing area and fish species by the prolonged and destructive increased dumping of dredged materials into its rohe moana; and
(c)the application will destroy the mauri and life-force of the seabed itself by dumping dredged materials from Auckland and Waikato that may contain foreign organisms, infestations that will colonise the fish stock and affect the orangatanga of the waters, taonga and people of Great Barrier Island.
The Māori Advisory Committee’s advice
[40] After the close of submissions, the Authority sought advice from the Māori Advisory Committee, Ngā Kaihautū Tikanga Taiao, to advise and inform it of a Māori perspective as provided under s 12(a) of the EEZ Act on:
(a)any matters contained in the application and the impact assessment report, or views expressed in submissions from iwi or tangata whenua, that the Māori Advisory Committee considered would benefit from further exploration by the Authority to understand the views expressed;
(b)how those views might be tested and probed in a manner that takes account of Māori world views; and
(c)how any issues and matters associated with the proposed activities raised by iwi or tangata whenua might be addressed by way of relevant and lawful conditions under the EEZ Act, if the Authority is minded to grant consent.
[41] The Māori Advisory Committee then provided the Authority with a comprehensive report, advising of the distinct iwi and hapū groups and recommending that the Authority engage with those groups in a wide-ranging process. Essentially, the report concluded that the consent application, the impact assessment, and associated documents provided by Coastal Resources did not provide sufficient information to enable the Authority to make an adequate and appropriate decision. The report advised that the documents reflected a lack of engagement with iwi and hapū with existing interests, and did not acknowledge the effects of the proposed activities on the cultural values of Māori existing interests.
[42] The report identified four key issues for the Authority to take into consideration:
(a)the limitations of Coastal Resources’ engagement process;
(b)Māori perspectives on cultural impacts, including the lack of cultural values included and adverse effects on iwi relationships and cultural values;
(c)Māori perspectives of cumulative effects; and
(d)dumping at sea in the event of unforeseen conditions.
[43] In relation to the limitations of Coastal Resources’ engagement process, the Māori Advisory Committee recommended that the Authority note the exemplar provided by the extensive engagement and iwi perspectives contained in the Hauraki Marine Spatial Plan. It recommended that Coastal Resources provide an engagement
plan that details how it will include those who have existing interests in the area from the start and during the period of their proposed operations, focusing on building on- going, meaningful relationships with iwi and hapū.
[44] Regarding Māori perspectives on cultural impacts, the Māori Advisory Committee recommended, among other things, that the Authority consider the perspectives of iwi and hapū that have been shared in submissions. It urged that a level of scrutiny and caution be applied to Coastal Resources’ existing impact assessment, because of its lack of assessment of the cultural values and impacts on those values. It recommended that a cultural impact assessment was the best way to obtain information on Māori existing interests, including impacts on cultural values prior to undertaking the proposed activities.
[45] In relation to Māori perspectives on cumulative effects, the Māori Advisory Committee recommended that the Authority consider the need for a holistic assessment of cumulative effects, including a Māori perspective, prior to making a decision. Such a holistic assessment of effects would start from the commencement of the activity and throughout the activity to determine how these effects collectively will affect the environment in which the activity is being carried out.
[46] Finally, in relation to dumping at sea in the event of unforeseen circumstances, the Māori Advisory Committee recommended that the Authority seek further explanation on what constitutes an unforeseen event, where dredged substances may need to be dumped outside of the Northern Disposal Area. It recommended further engagement between Māori and Coastal Resources on this issue, to support a partnership approach and to discuss the potential of implementing a “rāhui” over the area in the case of an unforeseen event.
[47] In response, Coastal Resources provided an overview of the iwi consultation that had occurred since the application was lodged, and presented a cultural impact assessment from Ngāi Tai ki Tāmaki.
The hearing in Auckland
[48] The Authority held the hearing in Auckland from 28 November to 4 December 2018. It appears the Authority initially gave its support to a marae-based hearing, if it was required. However, the opportunity was not made known to the people of Great Barrier Island and it never came to fruition. Although the issue was raised in the preliminary preparation for the hearing, the Authority did not hold a hearing on a marae and did not convene a hearing on Great Barrier Island.
[49] The claimants submit that consultation never occurred with them on the island. Coastal Resources explains that at the time of the hearing the Authority believed that only one submitter from the island wished to be heard at the hearing and the majority of submitters came from Auckland. As noted above, the latter point has subsequently been shown to be an error.
[50] At the hearing, it is common ground Ms MacDonald appeared for Ngāti Rehua. After Ms MacDonald’s oral submission, the Authority adjourned the hearing to allow Ms MacDonald more time to present the views and evidence of Ngāti Rehua. The Authority issued a minute inviting Ngāti Rehua to provide their views on the technical aspects of the application and for other parties to comment on the information provided.
[51] The Authority then received two submissions on behalf of Ngāti Rehua. The first was received on 11 December 2018 from Dr Toki, who appeared at the present hearing before me. Dr Toki, in her brief submission to the Authority, identified that Ngāti Rehua Ngatiwai ki Aotea Trust is “currently rudderless” and without trustees, as a decision was awaited from the High Court for the appointment of new interim trustees to the Ngāti Rehua Trust. She submitted that Coastal Resources should engage meaningfully with Ngāti Rehua Trust Board hapū and marae which had not occurred. Subsequently, Dr Toki has been appointed a trustee.31 The second submission was received from Ms MacDonald on behalf of the Ngāti Rehua Trust on 14 December 2018, with a rider that no other submission should be entertained other than the submission she supplied on behalf of Ngāti Rehua Trust.
31 Ngawaka v Ngāti Rehua-Ngatiwai ki Aotea [2018] NZHC 3398.
[52] The Authority made no reference to the fact that two persons had made submissions, both purporting to represent Ngāti Rehua. The claimants submit that from that point onwards, at the very least, the Authority was on notice that Ngāti Rehua had unresolved issues over mandate and representation. This, they say, should have been a red flag for the Authority, signalling a problem with the adequacy of the consultation.
[53] The Authority recorded in its Decision that it had heard from Ms MacDonald on behalf of Ngāti Rehua, who acknowledged there was an existing relationship with Coastal Resources. After the Authority gave Ngāti Rehua more time to make a further submission, the Authority refers to a submission received on the 17th December only, which by reference to “comments made” appears to be from Ms MacDonald. She has not been appointed a trustee of Ngāti Rehua Trust subsequently.
The Authority’s Decision
[54] In its Decision, the Authority held that Coastal Resources had undertaken consultation that met the requirements of the EEZ Act. It found that, based on its understanding of the concerns of iwi and hapū on the effects of the application, the information presented in submissions and in the hearing, the advice of the Māori Advisory Committee, and the subsequent information from Ngāti Rehua, the effects of the dumping activity on cultural values and interests were not such that they would warrant the Authority refusing Coastal Resource’s application. Further, it held the proposal will not physically displace any “existing interest”, including any exercise of a customary activity.
[55] Specifically, in relation to Ngāti Rehua, the Authority found that Coastal Resources had tangibly recognised the cultural associations of Ngāti Rehua with the coastal and offshore waters within which the Northern Disposal Area is located. This was formalised by way of a condition offered by Coastal Resources for the provision of an Iwi Liaison Group to be facilitated by Coastal Resources. Given the absence of effects on iwi or hapū with an “existing interest” as defined under the EEZ Act, the Authority noted that Coastal Resources proffered this condition on an Augier, or voluntary, basis.
Analysis
[56] The specific recognition of the Treaty of Waitangi in the EEZ Act and the prescribed implementation of those principles is purposeful. Section 12 emphasises this by specifying the sections in the Act which “recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi for the purposes of this Act”. The first of those is s 18, which provides for the Māori Advisory Committee to advise marine consent authorities so that decisions made under the EEZ Act may be informed by a Māori perspective.
[57] The Māori Advisory Committee has a significant role in the legislative framework of the Environmental Protection Authority. It was established under the Environmental Protection Authority Act 2011,32 and its function is to provide advice and assistance to the Authority on matters relating to policy process and decisions.33 The legislation requires that the advice and assistance must be given from the Māori perspective and come within the terms of reference as set by the Authority.34 The Authority in turn must have regard to the advice of the Māori Advisory Committee.35
[58] I turn to consider the Authority’s approach to the Māori Advisory Committee’s advice and the consequences which flow from it. I deal first with the Coastal Resources submission that the mandatory obligation on the Authority is to have regard to the advice received but the Authority does not necessarily have to give effect to it.
[59] In Christchurch Medical Officer of Health Ltd v J & G Vaudrey Ltd Gendall J considered what is meant by “have regard to”.36 In canvassing a range of authorities in comparable jurisdictions, he concluded that the decision-maker must correctly understand the matters to which he or she is directed to have regard to but the weight to be given to statutory criteria will generally be a matter for the decision-maker.37
32 Environmental Protection Authority Act 2011, s 18.
33 Section 19(1)(a).
34 Sections 19 and 20.
35 EEZ Act, s 59(3).
36 Christchurch Medical Officer of Health Ltd v J & G Vaudrey Ltd [2015] NZHC 2749, [2016] 2 NZLR 382.
37 At [77].
However, the inclusion of a specific matter to which the relevant body must have regard elevates that matter to a critical consideration.38
[60] Plainly, it is open to the Authority here to reject aspects of the recommendations of the Māori Advisory Committee, such as using the exemplar of the Hauraki Marine Spatial Plan, if the Authority considered this was disproportionate to these circumstances. However, the Authority needed to take into account and understand the matters to which it was advised to have regard. The real nub of the Māori Advisory Committee’s advice was that there should be engagement with the local iwi to fully understand their cultural values and perspectives on the proposed application. Essentially the Committee warned the Authority to apply a level of scrutiny and caution to Coastal Resources impact assessment because it lacked a perspective on Māori cultural values and the impacts on those values.
[61] Of the 85 iwi who were notified by the Authority of the application, Coastal Resources engaged with five iwi, one of which was a part of Ngāti Rehua.39 Both claimants submit that Coastal Resources’ cultural impact report was obtained from a hapū, Ngāi Tai ki Tāmaki, that does not hold mana whenua and mana moana over the area. They say that in this regard Coastal Resources was consulting with only one interest and this was contrary to the Māori Advisory Committee’s advice.
[62] In addition, it transpires that the engagement with Ngāti Rehua involved “the Auckland side” of the iwi, and was with a person who had not and has not been mandated to represent Ngāti Rehua. Both before and at the time of the hearing, Ngāti Rehua was seeking the appointment of properly mandated trustees and the application had not been determined. I accept the claimants’ submission that Coastal Resources was effectively engaging with a split group or a faction of Ngāti Rehua, based in Auckland.
[63] The advice from the Māori Advisory Committee was therefore salutary when it warned that the engagement process carried out by Coastal Resources was limited
38 At [77]–[79].
39 Mr Slyfield in his submissions at the hearing accepted that consultation is synonymous with engagement.
and inadequate to fully understand the cultural impacts and perspectives of iwi. Contrary to the Māori Advisory Committee’s advice, the Authority relied on Coastal Resources’ awareness of the Māori cultural associations within the Northern Disposal Area and wider Hauraki Gulf, and accepted that the Coastal Resources’ consultation with iwi met the requirements of the EEZ Act.
[64] I consider that the Authority needed to heed the Māori Advisory Committee’s advice that there were limitations in Coastal Resources’ engagement process. From a Māori perspective, the Māori Advisory Committee was best placed, and statutorily required, to provide such advice. In rejecting the implementation of the Māori Advisory Committee’s recommendations, I consider that the Authority failed to take into account the advice from the Committee to engage with affected iwi, including those located in Great Barrier Island, and to exercise caution about the adequacy of Coastal Resources’ consultation, contrary to s 12(a) and s 59(3)(c) of the EEZ Act.
[65] Secondly, in rejecting the Māori Advisory Committee’s views on “interests,” the Authority focussed on the definition of “existing interests” under s 4 of EEZ Act and confined its consideration to those with recognised Treaty claims or MACA rights only. The Authority sought clarification from the Māori Advisory Committee about its reference to Māori interests in its advice. The Committee explained that its use of the term “interests” was wider than the s 4 definition of “existing interests” under the EEZ Act. The Committee reached the view that there was a lack of engagement by Coastal Resources with iwi and hapū with wider existing “interests”.
[66] Despite this, the Authority concluded that it had no mandate to take a wider perspective of “existing interests” other than the s 4 definition. Relying on the TTRL Decision and on legal advice, the Authority decided it should not seek to pre-empt the outcome of Treaty settlement negotiations or give weight to interests that are not well defined, such as claims under MACA. While this is correct, in doing so I consider the Authority misconstrued the Māori Advisory Committee’s advice. While the Authority must take into account the effects on “existing interests” of allowing the activity under s 12(c) of the EEZ Act, and those “existing interests” are defined in s 4, its consideration is not restricted to those with “existing interests” under s 12(c).
[67] The Authority had given notification of the application to iwi authorities and groups that it considered may be affected by the application.40 Eighteen of the 76 submitters were from the claimant group. The EEZ Act requires that in considering an application, the Authority must have regard to any submissions made and evidence given in relation to the application,41 and the Authority must take into account any other matter it considers relevant and reasonably necessary to determine the application.42
[68] The purpose of the notification to iwi and the requirement on the Authority to have regard to submissions and evidence about the application is to enable the Authority to take into account the views of those who may be affected by the application. This was the tenor of the Māori Advisory Committee’s advice when it recommended that the Authority engage with local iwi in order to understand the effects of the proposed activities on the cultural values of Māori and iwi.
[69] As a consequence of misconstruing the Māori Advisory Committee’s advice and focusing on “existing interests” in s 12(c), the Authority overlooked its powers to consider those iwi who may be affected by the application. I consider this forms part of the Authority’s error in failing to take into account the Committee’s advice.
[70] Third, the only hearing conducted by the Authority was in Auckland, when 60 per cent of the submitters were based in Great Barrier Island. It was accepted at the hearing before me that the Authority was mistaken when it recorded that of the 76 submissions received, 35 were from the Auckland region, 31 from Great Barrier Island and 10 were from other areas. As corrected, 45 were from Great Barrier Island, making that the location of the majority of submitters.
[71] The Authority offered telephone conference services for submitters from Great Barrier Island but such services were problematic, compounded by the poor infrastructure and resources on Great Barrier Island itself. Added to those communication problems, the claimants point to the fact that the Authority publicly
40 EEZ Act, s 46(1)(b)(ii)(C).
41 EEZ Act, s 59(3)(a).
42 Section 59(2)(m).
notified the application by placing an advertisement only in the New Zealand Herald and not the local newspaper. The claimants say that the inadequacy of such services made it difficult and expensive for the Society and its members, Ngāti Rehua, and other stakeholders to obtain full and frank information about the application and lodge submissions or prepare evidence within the time allowed.
[72] Those factors may well have led to the limited numbers of submitters making an appearance, as the claimants submit, but I cannot determine that. What did occur however is that Ngāti Rehua was represented at the hearing by the unmandated or “the Auckland side” of the iwi based in Auckland. Ms Klink and Dr Toki, the latter of whom is now a mandated trustee of Ngāti Rehua, say the Authority had before it no identification of what interests or how Ngāti Rehua collectively on Great Barrier Island would be affected, because the Authority heard from an unmandated part of the iwi based in Auckland.
[73] The venue for the hearing is a procedural matter for the Authority and would normally be decided on practical considerations such as resource, numbers of submitters and location. I view this matter not as a stand-alone ground of review but as a further consequence of the Authority not heeding the advice of the Māori Advisory Committee to engage with local iwi. By convening the hearing in Auckland, the Authority was not made aware of the mandate issues in Ngāti Rehua and unwittingly endorsed a consultation process with an Auckland based grouping of an iwi which was awaiting a decision on the appointment of its trustees.
[74] Fourth, the Authority has imposed a condition on Coastal Resources to establish and facilitate an Iwi Liaison Group. The Iwi Liaison Group is to be convened by Coastal Resources at least annually and it is to meet the administrative meeting costs. The purpose of the group is to disseminate information (including monitoring results), to hear concerns of invitees and to discuss ways of addressing any concerns or risks arising. The condition stipulates that the group shall comprise the representatives of “the invitees”, namely two representatives of Ngāti Rehua and representatives of Coastal Resources.
[75] In effect, Coastal Resources is to choose the membership of the Iwi Liaison Group and can restrict the “invitees” to two persons only. Contrary to the function of the Māori Advisory Committee to provide a Māori perspective and contrary to the principles of the Treaty of Waitangi as recognised under the EEZ Act, the Authority has given the consent holder the choice of whom it wishes to join the Iwi Liaison Group.
Conclusion
[76] I find that the Authority failed to take into account the Māori Advisory Committee’s advice, contrary to s 12 and s 59(3)(c) of the EEZ Act. The tenor and focus of its advice was that the Authority should engage with the relevant local iwi groups and, in doing so, observe tikanga Māori. As a result of this failure, the Authority’s Decision has not been appropriately informed from a Māori perspective, contrary to s 12(a) of the EEZ Act.
[77]The following are, in my view, consequences of that error:
(a)the Authority narrowed its consideration to those iwi with “existing interests” as provided for in s 12(c) of the EEZ Act and overlooked the mandatory considerations under s 59(3)(a); the advice from the Māori Advisory Committee that it engage with Māori cultural and other interests; and that iwi were notified under s 46 as part of the recognition of Treaty principles because they may be affected by the application;
(b)by conducting a hearing in Auckland only, the Authority has not heard from the claimant submitters or the local iwi on Great Barrier Island as to whether they are affected, and if so, how such effects may be mitigated;
(c)the Authority accepted that consultation was a requirement of the EEZ Act and imposed a monitoring condition on the consent holder to choose the members of the Iwi Liaison Group. In doing so, the Authority has overlooked the function and advice from the Māori
Advisory Committee, which advised caution about the inadequacy of the consent holder’s consultation.
The other claims
[78] The claimants have raised three other claims as errors of law which, in light of the above finding do not require determination, but for completeness, I set out the parties’ positions and my preliminary view of them. These may be considered further after the Authority has reconsidered the application and undertaken further engagement with submitters from Great Barrier Island.
Existing interests
[79] The first is the claimants’ submission that “existing interests” under s 4 of the EEZ Act includes a claim under MACA which has not yet been determined.
[80] As noted above, s 12(c) of the EEZ Act requires the Authority to take into consideration the effects of activities on “existing interests”. Ngāti Rehua currently has an outstanding MACA claim. The claimants submit that this claim is an “existing interest” for the purposes of ss 12(c) and 4 of the EEZ Act.
[81] In response, Coastal Resources and the Authority submit the definition of existing interest at s 4 is exhaustive. They say s 4 covers interests in a protected customary right or customary marine title recognised under that Act but does not include claims under MACA. To be a right recognised under that Act, there must be an agreement or order made under MACA,43 and they refer to the TTRL Decision, where this Court has considered that “existing interests” do not include claims under MACA.44 To do so the Court said would undermine the deliberate wording of (f) if
(a) were interpreted broadly to encompass undetermined MACA claims.45
[82] In the consultation process, all persons as organisations were notified because they had been identified as potentially having an interest in the area of the proposal.
43 Marine and Coastal Area (Takutai Moana) Act 2011, s 94.
44 The TTRL Decision, above n 10, at [233].
45 At [233].
Having “an interest” however, is in a different category to having “an existing interest” as defined under s 4, which requires a protected customary right to be “recognised under” the MACA Act.
[83] Although the claimants have lodged a MACA claim, its claim, together with all other such claims, has not yet been determined or recognised. For the same reason as Churchman J concluded in the TTRL Decision, I consider a claim under MACA is insufficient to satisfy the definition of an “existing right” under s 4 the EEZ Act.
International obligations
[84] Secondly, the claimants submit that s 11 and s 59 of the EEZ Act provide an onus on the Authority to consider the relevant fundamental rights under UNDRIP. They submit the activity consented to will have an adverse impact on the right of iwi, in particular Ngāti Rehua, contrary to article 29 of UNDRIP.
[85] I can deal with this point briefly. In neither ss 11 nor s 59 does the EEZ Act make specific mention to UNDRIP.46 This is in contrast to its purposeful mention of the Treaty of Waitangi principles and the Crown’s recognised obligation in relation to them. In light of this, I agree with this Court’s findings in the TTRL Decision: the obligation to take into account international conventions such as UNDRIP has been subsumed within the express provisions of the EEZ Act.47 For example, article 29 of UNDRIP protects the lands or territories of indigenous peoples – it protects existing interests. The EEZ Act does this through s 59(2)(a).
[86] Properly construed, neither s 11 nor s 59(2)(l) support the claimants’ contention that the Authority was bound to take the contents of UNDRIP into account. The Decision records the correct legal position: “section 11 of the [EEZ] Act confirms that New Zealand’s international obligations are implicit in the Act.”
46 Four international conventions are listed in s 11, of which UNDRIP is not one.
47 The TTRL Decision, above n 10, at [237].
Adaptive management conditions
[87] Thirdly, the claimants submit that the Authority included adaptive management-type conditions in its Decision, contrary to s 64 of the EEZ Act. They submit conditions 23, 7, 8, 17 and 9 are essentially adaptive management in form, and the Authority made an error of law in imposing them.
[88] The Authority and Coastal Resources submit the Authority did not adopt an adaptive management approach. The Authority was aware that an adaptive management approach, defined as “allowing an activity to be carried out so that its effects can be monitored and assessed and the activity modified or discontinued accordingly”, is not appropriate in the EEZ Act space.48 It sought and received legal advice on this point, and the Decision explicitly recorded that taking an adaptive management approach was excluded for a marine dumping consent.
[89] Adaptive management is defined in the EEZ Act. It includes allowing an activity to commence on a small scale or for a short period so that its effects on the environment and existing interests can be monitored, and any other approach that allows an activity to be undertaken so that its effects can be assessed and the activity discontinued, or continued with or without amendment, on the basis of those effects.49
[90] In the TTRL Decision, this Court grappled with the relationship between conditions that merely impose monitoring and reporting requirements, and conditions that amount to adaptive management.50 It held:
[390] Imposing conditions such as reporting and monitoring, of itself, will not amount to an adaptive management approach. Adaptive management is a tool to be implemented in circumstances where a resource consent would not otherwise be granted because of inadequate or uncertain information. If the tools such as monitoring and reporting are used as part of a regime which is designed to address the fact that, at the time the consent is granted, there is inadequate information about the receiving environment, or the potential effects, then they can be part of an adaptive management approach or contribute to such an approach.
48 The TTRL Decision, above n 10, at [402]-[404].
49 EEZ Act, s 64(2).
50 The TTRL Decision, above n 10.
[91] The Court went on to find that in that case, the conditions imposed by the Authority either constituted or contributed to an adaptive management approach and were used as a tool for managing uncertainty.51 It was held such an approach was unavailable in the EEZ Act context,52 and led to an appealable error of law.53
[92] It appears to me that conditions 7, 8, 9, 17 and 23 are different in nature to those in the TTRL Decision, which included, among other conditions, pre- commencement monitoring of some 16 different matters.54 In that case, the critical features of the regime established by the conditions included the gathering of baseline information then the monitoring of the effects of the activities on the environment, the making of further formal decisions in stages with the potential outcome that extraction activities shall cease until the consent holder can demonstrate compliance with conditions, and thresholds being set to trigger remedial action.55 The Court held that:
[401] What distinguishes the monitoring and reporting conditions in the present case from “normal monitoring conditions” is that, it is not just monitoring to ensure compliance with environmental standards, it is monitoring to establish what the environmental baselines are, because of uncertainty or inadequate information coupled with a potential modification or cessation of the activity, depending upon the circumstances revealed by the information.
[93] In this case, the claimants broadly contend that the conditions imposed are all attempts to overcome information gaps. However, this does not appear to be borne out by the Decision. None of the conditions were imposed in response to findings of inadequate information, nor do any of the conditions resemble the collection of “baseline information” about the existing environment.
[94] As this issue is not determinative of the appeal or review, I record the submissions and my preliminary opinion that the conditions in this case appear to be different to those in the TTRL Decision, which is the authority relied on by all participants. It is unnecessary to reach a definitive conclusion in light of my earlier findings and I leave this issue for further consideration.
51 At [404].
52 At [404] and [420].
53 At [421].
54 At [378].
55 At [399].
Overview
[95] Taking an overall view of this case, the marine consent application concerned dumping of significantly increased dredged material in an area closest to Great Barrier Island. The EEZ Act specifically recognises the Treaty of Waitangi principles and requires the Authority to have regard to the advice from the Māori Advisory Committee, to inform its decision from a Māori perspective and to notify iwi, authorities and customary rights groups of consent applications that may affect them.
[96] The Authority notified 85 iwi authorities and received submissions, the majority of which were from Great Barrier Island. The hearing of submissions and evidence however took place in Auckland only. Only one submitter from Great Barrier Island appeared.
[97] The Māori Advisory Committee advised the Authority to engage widely with local iwi to obtain information on cultural and Māori values and interests and the effects of the application upon them. Contrary to that advice, the Authority approved the consultation that had been undertaken by the consent holder with certain members of selected iwi and imposed on the consent holder the requirement to report annually to an Iwi Liaison Group, the members of which were to be the consent holder’s choice.
[98] The notification requirement and the Māori Advisory Committee’s advice have been included in the EEZ Act to discharge the Crown’s responsibility to give effect to the Treaty principles. The Authority erred by failing to take into account the Māori Advisory Committee’s advice, particularly in failing to engage adequately with local iwi groups.
[99] I am directing the Authority therefore to reconsider the application and any consent conditions, taking into account the advice of the Māori Advisory Committee to engage with the local iwi.
Result
[100] The appeal and application for judicial review succeeds and the decision of the Authority is quashed.
[101] I direct that this matter be referred back to the Authority for its reconsideration, to have regard to the advice of the Māori Advisory Committee for meaningful engagement with local iwi authorities and groups which may be affected by the application, particularly those located in Great Barrier Island.
Costs
[102] Counsel are to confer on costs. If it is helpful to the parties, I consider 2B costs are appropriate. In the event agreement cannot be reached, Counsel are to file memoranda within 15 working days of this judgment.
Cull J
Solicitors:
SJ Grey, Nelson, for Appellant
Environmental Protection Authority, Wellington, for First Respondent Izard Weston, Wellington, for Second Respondent
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