Ng�i Tamahaua Hap� Committee v Heritage New Zealand Pouhere Taonga
[2021] NZHC 2033
•6 August 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2021-463-30
[2021] NZHC 2033
UNDER Section 299 of the Resource Management Act 1991 AND IN THE MATTER
of an appeal against a decision to decline waivers to appeal out of time against granting Archaeological Authorities 2020/688, 2021/18 and 2021/202
BETWEEN
NGĀI TAMAHAUA HAPŪ COMMITTEE
Appellant
AND
HERITAGE NEW ZEALAND POUHERE TAONGA
Respondent
ŌPŌTIKI DISTRICT COUNCIL
Authority holder
Hearing: 27 July 2021 (Heard at Hamilton) Appearances:
The appellant in person, by its chair, T Herewini V N Morrison-Shaw for the respondent
M H Hill for the interested party
Judgment:
6 August 2021
JUDGMENT OF JAGOSE J
Solicitors:
This judgment was delivered by me on 6 August 2021 at 3.30pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Atkins Holm Majurey, Auckland Cooney Lees Morgan, Tauranga
Copy to:
The appellant
NGĀI TAMAHAUA HAPŪ COMMITTEE v HERITAGE NEW ZEALAND POUHERE TAONGA [2021] NZHC 2033 [6 August 2021]
[1] The Ngāi Tamahaua Hapū Committee (the “Committee”) appeals against the refusal by Chief Judge D A Kirkpatrick in the Environment Court at Auckland on 19 March 2021 to waive time for the lodging of appeals against Heritage New Zealand Pouhere Taonga’s (“HNZPT”) grant of archaeological authorities to the Ōpōtiki District Council (the “Council”).1 No issue is taken with the Committee’s standing to pursue its appeal against refusal of waiver.
Background
[2]Among other things, the Heritage New Zealand Pouhere Taonga Act 2014:2
… prohibit[s] the modification or destruction of an archaeological site unless an authority for the modification or destruction is obtained from Heritage New Zealand Pouhere Taonga under [the] Act … .
[3] For the purposes of its conduct of a very substantial development of Ōpōtiki Harbour in the eastern Bay of Plenty, in the course of which local archaeological sites risked modification or destruction, the Ōpōtiki District Council (the “Council”) sought and obtained three archaeological authorities from Heritage New Zealand Pouhere Taonga (“HNZPT”). The three authorities relate respectively to preliminary enabling works, works to remediate a wastewater dispersal system and the substantive harbour works. They are subject to a variety of conditions, including of the Council’s advice to HNZPT within five working days of completing on-site archaeological work, and its provision of follow-up interim and final reports within respectively 20 working days and 12 months of that completion.
Statutory context
[4] Archaeological authorities commence on the expiry of the time for lodging an appeal if no appeal is lodged, or any appeal is withdrawn or determined by the Environment Court.3 The time for lodging an appeal is “not later than 15 working days after notice is given of the decision being appealed against”.4 The Committee lodged appeals against each. That timeline here is as follows:
1 Ngāi Tamahaua Hapū Committee v Heritage New Zealand Pouhere Taonga [2021] NZEnvC 037.
2 Heritage New Zealand Pouhere Taonga Act 2014, s 5(2)(e).
3 Section 54(1).
4 Section 58(3)(c).
Works Notice Expiry Lodging Enabling 28 May 2020 18 June 2020 23 December 20205 Wastewater 23 October 2020 16 November 2020 17 December 2020 Harbour 25 November 2020 16 December 2020 21 December 2020
Thus counsel contend the Committee’s appeals respectively were 128, 23 and four working days late.6
[5] Appeals against the grant of an archaeological authority are to “be heard and determined by the Environment Court in the manner provided for by or under the Resource Management Act 1991”.7 Section 281(1)(a)(ii) of the 1991 Act enables a person to “apply to the Environment Court to … waive a [statutory or regulatory] requirement about … the time within which an appeal or submission to the Environment Court must be lodged”.
[6] Section 281(2) prohibits the Environment Court’s grant of such an application “unless it is satisfied that none of the parties to the proceedings will be unduly prejudiced”.8 The section continues:
(3) Without limiting subsection (2), the Environment Court shall not grant an application under this section to waive a requirement as to the time within which anything shall be lodged with the court (to which subsection (1)(a)(ii) applies) unless it is satisfied that—
(a)the appellant or applicant and the respondent consent to that waiver; or
(b)any of those parties who have not so consented will not be unduly prejudiced.
5 Deemed by virtue of the Heritage New Zealand Pouhere Taonga Act 2014, s 6 definition of “working day” to have been lodged on 11 January 2021.
6 It is common ground the Judge miscalculated the former periods as 138 and 38 days respectively: Ngāi Tamahaua Hapū Committee v Heritage New Zealand Pouhere Taonga, above n 1, at [6]–[7]. Counsel also may have miscalculated the first and last periods. In reliance on s 35(2) of the Interpretation Act 1999 to count working days as excluding the day of the decision being appealed against, my clerk concurs the wastewater works archaeological authority appeal was lodged 23 working days late. But, using the same methodology, he concludes the appeal period for an appeal against the enabling works archaeological authority expired on 19 June 2020, meaning the appeal was lodged 129 working days late (noting s 6 of the 2014 Act defines “working day” as excluding all days between 20 December and 10 January, and allowing for the Queen’s Birthday public holiday on 1 June). Similarly, then, the harbour works archaeological authority appeal was lodged three working days late. But there can be no dispute all three appeals were lodged late.
7 Heritage New Zealand Pouhere Taonga Act, s 58(4).
8 The section’s “sometimes asymmetrical language” in its distinct reference to “parties” at subs (2) but “appellant or applicant and the respondent” at subs (3) is noted: Mullen v Parkbrook Holdings Ltd [1999] 2 NZLR 312 (CA) at 326.
(4) Without limiting subsections (2) and (3), the Environment Court may waive a requirement as to time under this section whether or not an application is made under this section before the requirement has been breached.
Thus the Environment Court’s decision if to waive such a requirement is discretionary.
Decision under appeal
[7] Chief Judge Kirkpatrick refused the Committee’s applications for waiver of each of the appeal lodging times. The Judge considered the Committee’s delay in respect of the enabling works’ authority was:9
… so long that the works have been done and so the appeal would be moot because no real relief could be granted that would affect the exercise of the authority.
While the delay in respect of the wastewater works’ authority was less, it was still substantial and inadequately explained. Given the public health and environmental issues, prejudice to the Council would be undue, and “there is no evidence before the court to indicate that protection beyond the conditions of the authority are required”. And, although the delay in respect of the harbour works’ authority was “quite short”, the upset to contractual arrangements in awaiting determination of any appeal affecting third parties “elevates the prejudice to the Council to the level of being undue”.10
[8] The Committee’s chair, Tim Herewini, is critical of the Judge’s failure to acknowledge the Hapū’s long-standing opposition to the Ōpōtiki Harbour development. He says the Judge’s reliance on the 1991 Act’s “generalities” errs in avoiding application of the 2014 Act’s principles and purposes, and omits reference to Marine and Coastal Area (Takutai Moana) Act 2011 determinations in the Waitangi Tribunal at Whakatane and this Court at Rotorua. He disputes the Judge’s findings as to prejudice — as not of the Council directly, but of third-party contracting parties — when it is the Hapū that has been prejudiced by the authorities’ timings. The bulk of Mr Herewini’s submission outlines the Hapū’s position on the substantive appeals, including the superiority of Te Tiriti o Waitangi ki Opotiki and international
9 Ngāi Tamahaua Hapū Committee v Heritage New Zealand Pouhere Taonga, above n 1, at [33].
10 At [34]–[36].
law; the Hapū as appropriate land owners for the purpose of consenting to the authorities’ application to customary Maori land; and the desirability of a broader assessment of the authorities on such appeals. Mr Herewini acknowledges an alternative may be judicial review of HNZPT’s decisions.
Approach to appeal
[9] Appeals to this Court against a decision of the Environment Court only are available “on a question of law”.11 The scope of an appealable question of law is well-understood: it is the decision be “clearly insupportable” as a proper application of the law, whether by mistaking the applicable law, disregarding relevant matters, considering irrelevancies, or otherwise being “clearly untenable”.12 When a decision in the exercise of the Judge’s discretion, I only may interfere with it if the appellant establishes the Judge erred in law or principle, did not address relevant matters or took into account irrelevant matters, or was “plainly wrong”.13
Discussion
[10] The issue here is if the Judge erred in law in refusing to waive the 2014 Act’s time for lodging an appeal to the Environment Court. Despite Mr Herewini’s claim to application of higher principle, the Judge’s powers closely are circumscribed by the 2014 Act’s reliance on the 1991 Act’s provisions.
[11] Under the 1991 Act, the Judge could not waive time unless satisfied none of the parties to the prospective appeal(s) would be unduly prejudiced. The Judge expressly was not so satisfied on the prospect of reopening the wastewater and harbour works’ authorities to appellate consideration. He explained why that was the case: the public health, environmental and contractual issues ultimately affecting the Council. Even if another view was available, the Judge’s lack of satisfaction as to the absence of undue prejudice cannot be said clearly untenable. The Judge’s view was available to him, and is not to be gainsaid on appeal on a question of law.
11 Resource Management Act 1991, s 299(1).
12 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[28].
13 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] citing May v May (1982) 1 NZFLR 165 (CA) at 170; and Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8].
[12] The Judge did not express himself in terms of his satisfaction as to a lack of ‘undue prejudice’ by reopening the enabling works’ authority. If there was no undue prejudice, the Judge’s decision on that waiver fell to his discretion. In exercising it against granting the waiver, the Judge took the view, because the enabling works were “substantially complete”, “no real relief could be granted that would affect the exercise of the authority”.14
[13] In other words, the Judge meant whatever archaeological site modification or destruction was authorised now had occurred, subject to the authority’s conditions. Although Mr Herewini takes a wider view such modification or destruction has “ongoing” resonance, the Judge’s point remains: the exercise of the authority is spent. While there is no conclusive evidence on-site archaeological work is complete, such as might be proffered by the five working day advice or the subsequent reports, neither is there any evidence archaeological sites may further be modified or destroyed by the enabling works. The Judge’s conclusion is not “plainly wrong” on any measure.
[14] Thus, in refusing to waive time for lodging the Committee’s appeals against the archaeological authorities, the Judge has not erred in any way susceptible to an appeal on a question of law.
Result
[15]The appeal is dismissed.
Costs
[16] In my preliminary view, as the unsuccessful party, the Committee should pay 2B costs to each the Council and HNZPT, as the parties agreed the proceeding should be categorised for costs purposes. If my view is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda of no more than five pages — annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate — to be filed and served by
14 Ngāi Tamahaua Hapū Committee v Heritage New Zealand Pouhere Taonga, above n 1, at [4(a)] and [33].
any claiming party within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.
—Jagose J
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