Ng�ti Paoa Trust Board v Auckland Council
[2022] NZHC 893
•29 April 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1749
[2022] NZHC 893
UNDER The Judicial Review Procedure Act 2016 and the Declaratory Judgments Act 1908 IN THE MATTER OF
An application for judicial review and/or declarations
BETWEEN
NGĀTI PAOA TRUST BOARD
Applicant
AND
AUCKLAND COUNCIL
First Respondent
Continued over page
Hearing: 2-3 February 2022
Joint Chronology 23 February 2022
Memoranda regarding application for leave to amend statement of claim 14 February 2022 – 7 April 2022
Teleconference 5 April 2022
Counsel:
K Feint QC and R Pinny for the Applicant
D J Neutze and M C Allan for the First Respondent No appearance for the Second Respondent
P Majurey and V Morrison-Shaw for the Third Respondent
M K Mahuika and C Conroy-Mosdell (VMR) for the Intervenor
Judgment:
29 April 2022
JUDGMENT OF HINTON J
This judgment was delivered by me on Friday 29 April 2022 at 5.00 pm. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
NGĀTI PAOA TRUST BOARD v AUCKLAND COUNCIL [2022] NZHC 893 [29 April 2022]
ENVIRONMENT COURT
Second Respondent
KENNEDY POINT BOATHARBOUR LIMITED
Third Respondent
NGĀTI PĀOA IWI TRUST
Intervenor
Counsel/Solicitors:
K Feint QC, Barrister, Wellington Insight Legal Limited, Warkworth Brookfields Lawyers, Auckland Crown Law, Wellington
V Morrison-Shaw, Auckland Atkins Holm Majurey, Auckland Kāhui Legal,Wellington
[1] This case is another regarding the marina that has been consented and is under construction at Kennedy Point/Pūtiki Bay on Waiheke Island.
[2] Ngāti Paoa are the tangata whenua of Waiheke Island. Since 2013 there has been a dispute between two groups, the Ngāti Paoa Trust Board (the Trust Board) and the Ngāti Paoa Iwi Trust (the Iwi Trust), over who has the mandate to represent Ngāti Paoa for purposes of the Resource Management Act 1991 (RMA) and Local Government Act 2002 (LGA). The dispute reached a head due to the Iwi Trust’s exclusive involvement, at least down to late May 2018, in the Kennedy Point Marina resource consent application. That application has been the subject of substantial litigation.
[3] At the heart of this judicial review proceeding are decisions by Auckland Council:
(a)in late 2013 to recognise the newly formed Iwi Trust as the mandated representative of Ngāti Paoa for the purposes of the RMA and the LGA, rather than the Trust Board; and
(b)to confirm that decision in 2014 after the Trust Board challenged it and in particular drew to the Council’s attention an order of the Māori Land Court under s 30(1)(b) of Te Ture Whenua Māori Act 1993 (TTWMA) that the Trust Board was the appropriate representative of Ngāti Paoa for purposes of the RMA and the LGA (the s 30 order).1
[4] The Trust Board’s first ground of review is that the Council erred in law. It says the s 30 order was binding on the Council and the Council acted unlawfully in failing to comply with it. Further, it says that the decisions and later actions were in breach of the Council’s statutory duties to ensure Ngāti Paoa were properly informed of resource consent applications, and also in breach of the Council’s legal obligations under the Treaty of Waitangi.
1 Ngāti Paoa (2009) 141 Waikato MB 271 (141 w 271).
[5] Secondly, the Trust Board says it had a legitimate expectation that it would be specifically notified, in a timely way, of the application to construct the Kennedy Point Marina and of the hearing process to determine whether resource consents would be granted.
[6] The third ground of review is that the Environment Court’s decision to uphold the resource consents on appeal is erroneous in law, having been made based on mistakes of fact and/or law, namely that it mistakenly believed the Iwi Trust was the appropriate representative body for Ngāti Paoa and it could rely on the Iwi Trust’s evidence as the stance of mana whenua.
[7] The Trust Board’s argument is heavily premised on what it describes as findings of the Māori Appellate Court in a judgment dated 12 December 2018 as follows:2
… As a matter of law, we think the Auckland Council was wrong to engage with the Iwi Trust as if it were the representative of the iwi in the knowledge that there was an extant s 30 order.
… that during the relevant period from 2016 – 2018 in which the Kennedy Point resource consent application was being determined, the Iwi Trust was not representative of Ngāti Paoa as it had only two Initial Trustees with limited powers.
[8] The Trust Board says the Council decisions had significant ramifications for Ngāti Paoa and the Trust Board including that the Trust Board was no longer notified of resource consent applications and did not receive capacity funding to engage in RMA matters. Specifically, it was not notified of the application for resource consent by Kennedy Point Boatharbour Limited (KPBL) for the marina. The Trust Board points to KPBL’s evidence at the Environment Court hearing that it would have been reluctant to advance a proposal without a clear understanding of how local iwi would receive it. The Trust Board says the Council decisions to list the Iwi Trust on the Mana Whenua Register meant KPBL then consulted with that body and went ahead with its proposal. A confidential agreement was reached between KPBL and the Iwi Trust on the basis of which the Iwi Trust agreed to support the application. The Trust Board
2 Ngāti Paoa Trust Board v Ngāti Paoa Iwi Trust (2020) Māori Appellate Court MB 318 at [34] and [51].
says it first found out about the application in May 2018, after resource consent had been granted and the Environment Court had heard an appeal against that consent. “Ngāti Paoa” therefore did not have an opportunity to oppose. Had the Environment Court been aware that the Trust Board opposed the marina on cultural grounds, the Trust Board says it is “reasonably likely” it would not have upheld the resource consents.
[9] The Trust Board is extremely concerned that the marina development is desecrating Kennedy Point Bay, that the mauri (life force) of the bay will suffer through it and the mauri of Ngāti Paoa will suffer as a result.
[10] The Trust Board seeks declarations that the Council decisions were errors of law and seeks to quash the Environment Court decision.
Relevant factual background
[11] The Waitangi Tribunal found that Ngāti Paoa was rendered almost landless by the end of the 19th century. Along with losing its land, it lost its own identity. The iwi suffered, more than most, the negative effects of colonisation, amongst other reasons because it previously occupied some of what is now considered the most desirable real estate. Although the fires of ahi kā never went out, Ngāti Paoa did not rekindle their whakapapa and spiritual connection to Waiheke Island until the 1980s when, in particular in 1987, the Waitangi Tribunal recommended to the Crown that the farm known as Waiheke Station be returned to Ngāti Paoa. The Crown accepted that recommendation.
[12] The Trust Board submits that as a result of losing their tribal lands on Waiheke Island:
(a)very few Ngāti Paoa people can afford to live there today. This resulted in the Trust Board not having “on the ground” information about local developments, including about the Kennedy Point Marina application;
(b)Ngāti Paoa regard it as imperative to protect their cultural heritage on Waiheke Island; and
(c)until recently Ngāti Paoa has had limited governance experience.
[13] The Trust Board was established as a charitable trust by Ngāti Paoa in December 2004. It obtained the s 30 order from the Māori Land Court on 26 November 2009. This seemed to be connected with establishing the recipient of a sum of $1 million about to be paid to Ngāti Paoa.
[14] Waiheke Station was finally vested in the Trust Board in 2011. The Trust Board had also received the sum of $1 million but that money has since been expended. I was advised that Waiheke Station is currently the Trust Board’s only asset and source of income.
[15] The Trust Board was also mandated by Ngāti Paoa, in May 2011, to negotiate the settlement of Ngāti Paoa’s historical Treaty of Waitangi claims, additional to the ad hoc settlements already received. That mandate was recognised by the Minister for Māori Affairs in June 2011. It was anticipated the Ngāti Paoa settlement would be concluded by 2014.
[16] Under new protocols, the Trust Board as a charitable trust could not receive Treaty settlement assets. On 7 September 2013 a critical resolution was passed (or was at least minuted as having been passed) at the Annual General Meeting (AGM) of the Trust Board that:
The day to day management, operations and assets of the Ngāti Paoa Trust be wholly transferred to the Ngāti Paoa Iwi Trust (PSGE)3 once ratified.
[17] On 25 September 2013 the Minister for Treaty of Waitangi Negotiations and the Minister of Māori Affairs sent a letter to Ngāti Paoa iwi negotiators concerning “ratification results for the Iwi Trust as PSGE” and stating that results demonstrate sufficient support from the Ngāti Paoa claimant community.
[18] The Iwi Trust was established on 9 October 2013 and two Initial Trustees appointed pending settlement of Ngāti Paoa’s treaty claim, at which point trustee elections would be held. On 11 October 2013 there was a hui between Council
3 Post-Settlement Governance Entity.
representatives and the initial trustees of the Iwi Trust regarding “transition” and setting up the Iwi Trust as the “new vendor”. No minutes have been produced of the hui but on 31 October 2013 George Kahi (a trustee of the Trust Board) emailed the Council to advise that the Chair of the Trust Board had resigned and that the Board would shortly write to the Council as to “many changes regarding the RMA and LGA aspects for Ngāti Paoa” and to “minimise perceived views who is representing Ngāti Paoa on the RMA and LGA front”.
[19] On 26 November 2013 Gary Thompson, writing as Chair of the Iwi Trust, sent documentation to the Council which he described as “substantiating the mandate and status of the Ngāti Paoa Iwi Trust, as the Mandated Iwi Authority and PSGE of Ngāti Paoa”. Mr Thompson had been Chair of the Trust Board but had resigned following the AGM to take up chairmanship of the Iwi Trust. The documentation he sent to the Council comprised (a) the ministerial letter; (b) voting results; and (c) a document described in Mr Thompson’s covering letter as “the minutes of the Ngāti Paoa Trust Board AGM held 7 September 2013 where a resolution was passed transferring the operations, management and assets of the Ngāti Paoa Trust to the Ngāti Paoa Iwi Trust”.
[20] The Council is required under s 35A of the RMA to maintain a Mana Whenua Register, a publicly available record of iwi authorities within the Council’s boundaries including contact details for each iwi. Until late 2013 the Council recorded the Trust Board as the representative for Ngāti Paoa in terms of Waiheke Island.
[21] Following the correspondence with Mr Thompson, a hui with representatives of the Iwi Trust, and the documentation provided, the Council changed its register to recognise the Iwi Trust, not the Trust Board, as the mandated entity of Ngāti Paoa in respect of RMA and LGA matters and updated its website accordingly. It appears from contemporaneous documents and affidavit evidence filed on behalf of the Council that this occurred in late November/early December 2013.
[22] On 12 March 2014 Miria Andrews, by then Chair of the Trust Board, wrote to the Council stating that the Trust Board, not the Iwi Trust, was still the mandated entity for Ngāti Paoa. Ms Andrews said the Iwi Trust would ultimately take over all
responsibilities but that would require a postal referendum and other special arrangements. She said the Iwi Trust was acting on an incorrect assumption. The Iwi Trust was not yet representative of Ngāti Paoa. The two trustees, Mr Thompson and Bryce Heron, former Chair and accountant of the Trust Board, were Initial Trustees and the full Board of seven must be elected by Ngāti Paoa. The letter referred to the s 30 order and said it still applied. Ms Andrews sought a meeting with the Council.
[23] On 4 April 2014 George Kahi (trustee of the Trust Board) wrote to the Council saying the Iwi Trust will not be representative of Ngāti Paoa until the iwi has voted on such change.
[24] On 24 April 2014 the Trust Board met with the Council to discuss its mandate concerns. No minutes have been found but following that meeting the Council emailed the Trust Board on 29 April saying that its initial perspective was that matters relating to mandate and representation of Ngāti Paoa are primarily internal matters for Ngāti Paoa to resolve. The letter said they would be seeking advice and would share it. There were follow-up emails from the Trust Board.
[25] On 2 July 2014 the Iwi Trust filed a motion to join direct referral proceedings relating to a marina application at Matiatia on Waiheke, (an application that preceded KPBL’s), an affidavit of Morehu Wilson in support, and an intended s 274 notice. Mr Wilson was described by David Roebeck, the Trust Board’s principal officer, as a kaumatua of Ngāti Paoa; fluent in Te Reo Māori; someone with great knowledge, a widely respected representative of Ngāti Paoa and one of the mandated Treaty settlement negotiators for Ngāti Paoa.
[26] Following on from its correspondence with the Trust Board, on 18 July 2014 the Council advised the Environment Court in the Matiatia Marina proceeding that while the Council has recently updated its records to identify the Iwi Trust as the kaitiaki contact for Ngāti Paoa for RMA purposes, there had been discussions in recent months between the Council and both the Iwi Trust and the Trust Board concerning matters of mandate and representation.
[27] On 22 July 2014 a willsay statement by Lucy Tukua was filed on behalf of the Iwi Trust in the Matiatia proceeding. The Iwi Trust stated it is the mandated representative for Ngāti Paoa as mana whenua and mana moana in relation to resource management matters, relying on the same documents provided to the Council on 26 November 2013. Lucy Tukua is a descendant of Ngāti Paoa. She traces her whakapapa through her grandparents who raised their family there. She said in her willsay statement she was the interim Environment Manager for the Iwi Trust and previously a trustee on the Trust Board but resigned on 2 September 2013.
[28] Shortly after, the Environment Court granted the Iwi Trust’s application to join the Matiatia proceeding as a late s 274 party.
[29] By letter dated 29 July 2014, Mr Grant Taylor, the Governance Director of the Council, wrote to Ms Andrews confirming the Council’s decision to recognise the Iwi Trust as the mandated body to deal with day to day operations on behalf of Ngāti Paoa and to work with Council. The Trust Board was not provided with a copy of any advice.4 On 8 September 2014 Ms Andrews wrote to Stephen Town, by then Chief Executive of the Council, expressing grave concern about the Council’s decision not to recognise the Trust Board. She enclosed the s 30 order and requested a further meeting.
[30] On 29 September 2014, Mr Town met with the Trust Board. There are no minutes of that meeting. Following the meeting, Mr Town wrote to the Trust Board on 13 October 2014 again reiterating that the Council had taken the view the Iwi Trust was the appropriate representative of Ngāti Paoa Iwi. Mr Town pointed out that the Trust Board’s AGM resolution had not been revoked and said he understood the two iwi bodies were holding meetings, which may present an opportunity for reconciliation of differences.
[31] From at least September 2014, the Council stopped providing notice to the Trust Board of publicly notified applications for resource consent. The Council did
4 The Trust Board sought a ruling during the hearing as to whether privilege had been waived by the Council employee earlier volunteering to share advice it intended to seek. I take the view privilege was not waived as the offer to provide that advice was gratuitous and could not be said to have been relied on.
however continue to engage with the Trust Board for some projects. For example in September 2014 the Trust Board produced a report for Council on Waiheke Island Walkways and in January to May 2015 the Trust Board corresponded with the Council on gifting of a name for a new arts centre in Glen Innes and gifting of artworks for a Council project.
[32] In October 2014 the Environment Court heard the application regarding the proposed marina at Matiatia. Mr Wilson gave evidence for the Iwi Trust opposing such a marina. In the course of that evidence he said that the Iwi Trust had the Ngāti Paoa mandate and he acknowledged the Chair of the Trust Board as being present in the room. The Matiatia Marina application was ultimately unsuccessful, the final decision issuing on 17 December 2015.
[33] In July 2015 Danella Roebeck, as trustee of the Trust Board, filed proceedings in this Court contending that the Trust Board had failed to meet its obligations under its deed and charter and it was not being governed as required.5 There were then letters in August and October 2015 from the Department of Internal Affairs to the Trust Board concerning overdue returns.
[34] In December 2015 KPBL engaged with Mr Wilson and other representatives of the Iwi Trust concerning plans to build the marina at Kennedy Point. In about February 2016 the Iwi Trust’s investment company entered into an agreement with KPBL, the terms of which have not been disclosed.
[35] A Ngāti Paoa hui-a-iwi was held between the Trust Board and Iwi Trust on 28 April 2016, at which the Trust Board was reaffirmed as the mandated entity to represent Ngāti Paoa in Treaty settlement negotiations and the mandate of Howard Rawiri and Mr Wilson re-affirmed as negotiators. Bryce Heron chaired the meeting as Independent Trustee.
[36] In September 2016 the Iwi Trust’s Cultural Values Assessment (CVA) of the Kennedy Point Marina application was finalised. On 19 September 2016 KPBL lodged its resource consent application for the marina and on 23 September the
5 Roebeck v Ngati Paoa Trust Board [2016] NZHC 2458.
Council corresponded with KPBL, confirming KPBL had correctly identified all mana whenua groups in its consultation.
[37] On 14 October 2016 this Court issued a decision granting orders to Ms Roebeck to rectify Trust Board compliance issues including holding elections for new trustees.6
[38] On 17 and 18 November 2016 the Kennedy Point Marina resource consent application was publicly notified in the Waiheke Gulf News and New Zealand Herald, with submissions closing on 16 December.
[39]Iwi Trust concluded an addendum to the CVA in late February 2017.
[40] Following the High Court decision on Ms Roebeck’s application in October 2016,7 on 11 March 2017 the Trust Board held elections and new trustees were elected. However, compliance issues continued.
[41] The Council-level Kennedy Point Marina hearing took place in early April 2017 and on 17 May Independent Commissioners appointed by the Council under the RMA issued a decision granting KPBL’s resource consent application for the marina. Save Kennedy Point (SKP) appealed the decision to the Environment Court.
[42] In June 2017 the Trust Board was deregistered from the Charities Register for failing to file annual returns. Mr Town was told by Harry Williams, now Chair of the Trust Board, and Ms Roebeck at a meeting and by letter of 3 July 2017, of recent trustee elections. The letter said the Trust Board was the sole governing entity for Ngāti Paoa. The Trustees’ term of office had expired in 2015, with no audited financial reports being presented or an election being held. They said the election was held in March 2017. They then referred to the Council’s application for resource consent for Stoney Ridge Quarry in 2012, and a subsequent related monetary settlement paid to the Iwi Trust which should be rectified by the Iwi Trust returning that settlement to it.
6 Roebeck v Ngati Paoa Trust Board, above n 5.
7 Roebeck v Ngati Paoa Trust Board, above n 5.
They asked that all correspondence relating to Ngāti Paoa be directed to the Trust Board until the settlement claims are finalised.
[43] Between 26 February and 2 March 2018 the Environment Court heard the resource consent appeals for the Kennedy Point Marina. Mr Wilson had provided evidence for the Iwi Trust in support of the marina in December 2017 which he confirmed before the Court.
[44]On 27 February 2018 the Trust Board reregistered as a charity.
[45] The then trustees of the Trust Board say that they (and Ngāti Paoa kaumatua) did not know that KPBL had applied for resource consents to build a marina until May 2018 when Mr Roebeck read an article about it, which was after the Environment Court appeal had been heard.
[46] On 30 May 2018 the Environment Court issued its decision dismissing the appeals by SKP and others and upholding the resource consent. The Court found that the evidence of the Iwi Trust favoured the consent. The deadline for appeals to the High Court was 20 June 2018.
[47] On 9 July 2018 the Trust Board wrote an open letter to Auckland Council, KPBL representatives and others, explaining why it considered it was the mandated authority and requesting amongst other things that the Kennedy Point Marina resource consent not be issued, or be revoked, and that the Trust Board be consulted about the proposal. The Trust Board followed that letter with meetings with the Council on 7 August and 21 August 2018 and another letter on 27 August 2018.
[48] On 31 August 2018 the Council responded to the Trust Board’s open letter advising that it saw no reason to change its position with regard to recognition of the Iwi Trust and it could not revoke the marina consent.
[49] That same day SKP filed an application in the High Court to appeal the Environment Court decision out of time, with a supporting affidavit from Mr Roebeck. SKP also applied for a rehearing of the Environment Court decision on the basis there
was new and important information. Again affidavit evidence in support was provided by Mr Roebeck. The Trust Board filed an application for leave to be added as a party. Both SKP and the Trust Board were represented by the same counsel, Mr Gardner- Hopkins, a senior lawyer with recognised specialist expertise. The Trust Board’s application for leave was held over until after the outcome of the rehearing application.
[50] On 12 September 2018 the Iwi Trust filed an application in the Māori Land Court seeking review of the 2009 s 30 order that declared the Trust Board as representative for RMA matters and seeking to be substituted as representative. On 10 November 2018 the two Initial Trustees of the Iwi Trust appointed five more Initial Trustees and in December amended the trust deed to enable it to hold trustee elections before the Treaty settlement.
[51] The Māori Land Court issued its decision on the Iwi Trust’s application on 12 December 2018. The Court imposed an expiry date of 21 December 2018 on the s 30 order, declined to direct substitution of the Iwi Trust and directed the Iwi Trust and the Trust Board to mediation to resolve Ngāti Paoa representation issues.
[52] Following the Māori Land Court decision, on 18 December 2018 the Council decided “on an interim basis” to recognise both the Iwi Trust and Trust Board as representative entities of Ngāti Paoa pending resolution of the representation issue. That interim arrangement still stands today. This means that on every application for resource consent the Council notifies both the Iwi Trust and the Trust Board.
[53] The s 30 order expired on 21 December 2018, being the date directed by the Māori Land Court.
[54] SKP’s application for leave to appeal the Environment Court decision was declined by this Court on 24 April 2019.
[55] In mid-June 2019, Mr Thompson provided evidence to the Environment Court for the rehearing, certifying the Iwi Trust remained supportive of the Kennedy Point Marina application and Mr Wilson provided evidence to that effect for the rehearing application.
[56] SKP’s application for rehearing was still to be heard by the Environment Court and on 23 August 2019 SKP filed a further amended application to add coastal processes and traffic grounds.8
[57] On 13 December 2019 the Environment Court refused SKP’s application for rehearing.9 It followed there was nothing for the Trust Board to join as a party and so the joinder application was refused.
[58] SKP filed a notice of appeal in this Court against the Environment Court’s refusal of a rehearing in late January 2020. This was dismissed on 19 June 2020.
[59] On 17 July 2020 SKP applied to the Court of Appeal for leave to appeal this Court’s decision to dismiss SKP’s appeal. That application was declined on 2 December 2021. The Court of Appeal noted that the Trust Board had had the right to be heard with or without specific notification because the consent application was publicly notified.
[60] The Trust Board appealed the Māori Land Court’s decision of 12 December 2018 and on 10 December 2020 the Māori Appellate Court confirmed the decision, adding that they thought the Council was wrong to engage with the Iwi Trust, as recorded at the outset of this judgment. The Council was not a party to the appeal, nor had the legality of the Council’s decision been at issue before the Māori Appellate Court or within its jurisdiction.
[61] On 23 December 2020 SKP applied to the Supreme Court for leave to appeal the Court of Appeal’s decision declining leave. The Trust Board sought leave to intervene in that application on 29 January 2021. SKP’s application was declined on 27 April 2021. As had the Court of Appeal, the Supreme Court noted that the Trust Board had the opportunity to be heard in any event. Throughout the rehearing and appeal process the same lawyer continued to represent SKP and the Trust Board.
8 Nothing more need be said regarding these grounds. The Environment Court considered them to be comparatively “make-weight”.
9 SKP v Auckland Council [2019] NZEnvC 199.
[62] On 19 April 2021, SKP, the Trust Board, and others, filed an application for judicial review seeking declarations on the Department of Conservation’s permit under the Wildlife Act 1953 and the conditions of the construction management plan. This was withdrawn in June 2021. Again the same counsel acted.
[63] At the same time, the same parties and counsel filed an application for interim orders prohibiting KPBL from commencing or continuing work on the marina. That application was withdrawn in June 2021.
[64] Presumably in lieu, on 30 June 2021 the Trust Board filed an application for interim enforcement orders in the Environment Court seeking to prohibit KPBL from exercising the resource consent on the rock wall or breakwater except on certain conditions.
[65] This current proceeding was filed on 3 September 2021 and subsequently granted a priority fixture. Affidavit evidence filed in support by Ms Roebeck and others raises new issues about the legitimacy of the September 2013 resolution.
[66] Shortly after this proceeding was filed, on 23 September 2021, the Environment Court dismissed the Trust Board’s application for interim enforcement orders due to a jurisdictional bar in s 319(2) of the RMA.
The significance of Kennedy Point/Pūtiki Bay
[67] The points listed below are primarily taken from a Cultural Values Assessment (CVA) dated April 2021, commissioned by the Trust Board to assess the cultural impacts of the marina.10 The CVA was authored by kuia Kathryn Ngapo and reviewed by Ms Roebeck. Ms Ngapo has whakapapa to Ngāti Paoa and knows Pūtiki Bay intimately as ahi kā, having lived there for over 60 years.11
10 Kathryn Ngapo Ngāti Paoa Trust Board Cultural Values Assessment: Kennedy Point Marina
(April 2021) [CVA].
11 I note that Ms Ngapo had made a personal submission on the Kennedy Point Marina application.
[68] Kennedy Point is situated at the mouth of Pūtiki Bay, a bay which is an important part of Ngāti Paoa’s cultural heritage and “a vital part of [Ngāti Paoa’s] tribal identity”.12 The Trust Board’s CVA observes that:13
Ngāti Paoa view Pūtiki Bay as the gateway to Waiheke Island because history tells us that is exactly what it is.
[69] The bay is named after an ancient pā, Te Pūtiki o Kahumatamomoe (the top knot of Kahumatamomoe), which is the main Ngāti Paoa pā on Waiheke.14 Kahumatamomoe was the son of Tamatekapua, captain of the Te Arawa waka, which landed at Pūtiki around 800 years ago after its voyage from Hawaiki. The bay is renowned for this ancient association.
[70] Pūtiki Bay was the Ngāti Paoa heartland on Waiheke, and the sea an integral part of Ngāti Paoa’s cultural landscape. Ms Ngapo says:
You can still see the cultural heritage of Ngāti Paoa in the landscape; the bay is ringed by pā, reflecting its significance to Ngāti Paoa as their main papakāinga on Waiheke. The main pā on Waiheke for Ngāti Paoa, Te Pūtiki o Kahumatamomoe pā, is in Pūtiki Bay and is now preserved as part of a public reserve. On Kennedy Point directly above the marina is another pā site with an associated defensive pā only 500 metres away on the western side of Kennedy Point headland at Takirau Bay. When you look across the water to the Te Whau Islands opposite there are pā there too, just a few hundred metres from the marina boundary, as well as all around Pūtiki Bay.
[71] Over the centuries, Pūtiki Bay was the site of many battles and contains many wāhi tapu (the knowledge of which has not been publicly disclosed due to their tapu nature).
[72] The Trust Board has provided evidence from Ngāti Paoa kaumatua and kuia who say they have a deep-seated opposition to a marina at Kennedy Point. Culturally they believe they have an obligation as kaitiaki to do whatever they can to prevent the marina in order to protect Pūtiki Bay. Charles Peters says:15
We, as kaitiaki of Pūtiki Bay, have a responsibility to protect the mouth of Pūtiki Bay. We are extremely concerned that the marina development is desecrating Kennedy Point Bay. Our taonga, the kororā, are the tūpuna of the
12 At 49.
13 At 63.
14 Affidavit of Charles Peters at [10]–[11].
15 Affidavit of Charles Peters at [17].
bay and their breeding environment and habitat is being destroyed by machinery and developers that have no interest in the preservation of this protected species.
[73] The Trust Board says that Ngāti Paoa feels so strongly about the marina development that a contingent of its whānau have been occupying the beach at Kennedy Point in peaceful protest since March 2021, an occupation which the Trust Board supports.16 The takutai moana (coastal marine area) of Waiheke Island is of special significance to Ngāti Paoa, since it is one of the few remaining areas where Ngāti Paoa can be Ngāti Paoa, and exercise their kaitiakitanga and rangatiratanga on the island, as well as undertake traditional cultural practices such as gathering kai moana.
[74] Drina Paratene refers to her resolve that “Ngāti Paoa must protect the little it has left in and around the island”.17 She says the legacy of injustice as a result of the Crown’s Treaty breaches has excluded most of their people from Waiheke Island, which has become a weekend enclave for wealthy Aucklanders. Ms Ngapo considers that the marina “feels as if Pākehā are now colonising the ocean as well as the land”.
[75]As summarised in the Trust Board’s submissions, the CVA concludes that:
…The marina will … render the waters and lifeforms of Kennedy Point and Pūtiki Bay maurimate and this is totally unacceptable to Ngāti Paoa as kaitiaki of Waiheke.
…Ngāti Paoa, including our elders such as Hariata Gordon who have now passed away, believed Kennedy Point to be a wāhi tapu.
On Waiheke, when something is sacred to Māori and it is threatened, Ngāti Paoa as tangata whenua and kaitiaki has the right and responsibility to protect it. In this instance, the Trust Board on behalf of Ngāti Paoa are resolute in our belief that the marina development is against tikanga and it is totally unacceptable for Kennedy Point and Pūtiki Bay.
Auckland Council’s statutory obligations to Māori and the resource management regime
[76] There is comprehensive provision within the RMA for Māori and iwi interests, both procedurally and substantively. In this regard ss 6(e), 7(a) and 8 in Part 2 of the
16 Second affidavit of Danella Roebeck at [124].
17 Affidavit of Drina Paratene at [8].
RMA are of particular importance.18 These are strong directions to be borne in mind at every stage of the planning process.
[77]Further, as Baragwanath J put it in Ngāti Maru Ki Hauraki Inc v Kruithof:19
It is the responsibility of successors to the Crown, which in the context of local government includes the council, to accept the responsibility for delivering on the second article promise…[The council] is answerable to the whole community for giving effect to the Treaty vision in the manner expressed in the RMA.
[78] The Trust Board points to the Treaty clause in the LGA, s 4, which provides that:
In order to recognise and respect the Crown’s responsibility to take appropriate account of the principles of the Treaty of Waitangi and to maintain and improve opportunities for Māori to contribute to local government decision-making processes, Parts 2 and 6 provide principles and requirements for local authorities that are intended to facilitate participation by Māori in local authority decision-making processes.
[79] In Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, the Supreme Court rejected an argument that Treaty clauses of this nature are exhaustive and held that they do not limit the applicability of Treaty principles in interpreting the legislation more broadly.20
[80] Section 6(e) of the RMA specifies that the relationship of Māori with their ancestral lands and waters is a matter of “national importance”. It must be recognised and provided for in decision-making under the Act. Section 7 deals with matters to which “particular regard” must be had, including kaitiakitanga which is specifically defined in s 2 of the RMA to mean “the exercise of guardianship by tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources and includes the ethic of stewardship”.
[81] Section 8 of the RMA provides that in achieving the purpose of the Act all persons exercising functions and powers under it in relation to the use, development
18 Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Limited [2020] NZHC 2768, [2021] 3 NZLR 352.
19 Ngāti Maru Ki Hauraki Inc v Kruithof HC Hamilton CIV 2004-485-330, 11 June 2004 at [57].
20 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127 at
[151] per William Young and Ellen France JJ.
and protection of natural and physical resources shall take into account the principles of Te Tiriti o Waitangi.
[82] The Trust Board submits that the Marine and Coastal Area (Takutai Moana) Act 2011 is also relevant in the context of the Kennedy Point Marina as another indication of Parliament’s willingness to acknowledge the enduring significance of the takutai moana to tangata whenua.
[83] The Trust Board further submits that it is now well-established that tikanga Māori is part of the common law of Aotearoa. In Trans-Tasman Resources, the Supreme Court considered that “tikanga as law” must be taken into account by the Environmental Protection Authority in circumstances where its recognition and application is appropriate to the circumstances of the consent application at hand.21 For example, considering seabed mining from a tikanga perspective may require taking account of the spiritual impact of the proposed activity on the mauri of the moana, thereby introducing concepts that are unique to Te Ao Māori.
[84] The Trust Board submits that the Crown (and impliedly the Council) must act in good faith and partnership with iwi and in a way that is respectful of tikanga values and the mana of iwi.
[85] Section 35A of the RMA is of particular relevance here and it provides in relevant part:
35A Duty to keep records about iwi and hapū
(1)For the purposes of this Act or regulations under this Act, a local authority must keep and maintain, for each iwi and hapū within its region or district a record of:
(a)the contact details of each iwi authority within the region or district and any groups within the region or district that represent hapū for the purpose of this Act or regulations under this Act;
(b)the planning documents that are recognised by each iwi authority and lodged with the local authority;
21 Trans-Tasman Resources v Taranaki-Whanganui Conservation Board, above n 20, at [9] and [166]–[172].
(c)any area of the region or district over which 1 or more iwi or hapū exercise kaitiakitanga; and
(d)any Mana Whakahono o Rohe entered into under section 580.
…
(5)If the information recorded under subsection (1) conflicts with a provision of another enactment, advice given under the other enactment, or a determination made under the other enactment, as the case may be, —
(a)the provision of the other enactment prevails; or
(b)the advice given under the other enactment prevails; or
(c)the determination made under the other enactment prevails.
[86] An “iwi authority” is defined in the RMA as the authority which represents an iwi and which is recognised by that iwi as having authority to do so.22
Regulation 10(2)(d) of the RMA provides as follows:
10 Service of applications for resource consents or for review of conditions
…
The consent authority must serve that notice on—
…
(d)any other iwi authorities, local authorities, persons with a relevant statutory acknowledgement, persons, or bodies that the consent authority considers should have notice of the application or review:
[88] Section 35A of the RMA was introduced through the Resource Management Amendment Act 2005 of which one of the express purposes was to “improve the operation of the Act in relation to … consultation with iwi and resource planning by iwi”.
[89] The Trust Board points to the explanatory note to the relevant Bill which specifically records that a key measure was “providing certainty for iwi consultation and iwi resource planning”. The explanatory note further states:
22 Resource Management Act 1991, s 2.
Some applicants have indicated that they have had difficulties with iwi consultation and participation in the approvals process, in particular identifying which group or persons have a mandate to represent a specific iwi or hapū. In some cases, this has led to delays; for example, when agreements reached with one party do not hold with other iwi and hapū members. … Anecdotal evidence has indicated that iwi groups are concerned that their views are not being incorporated into resource management planning.
[90] Additionally, the Courts have frequently recognised that the purpose of s 35A is to enable Māori, iwi and hapū to have input into resource management decisions in their rohe.23
[91] The Trust Board concludes its submissions on statutory purpose by saying that the clear purpose of s 35A and reg 10(2)(d) is to ensure that:
(a)each iwi authority is directly notified of resource consent applications within their rohe, thereby ensuring they have an opportunity to contribute to the consenting process;
(b)Council records are publicly available to inform applicants for resource consents on how to contact the relevant iwi authority so that applicants have some certainty; and
(c)Councils encourage applicants to engage with the relevant iwi authorities as part of their resource consent process.
[92] The Trust Board submits that this information is of the utmost significance to ensure that iwi and hapū are able to properly discharge their duties as kaitiaki in protecting their ancestral whenua and moana.
[93] The provisions use the term “iwi authority”, rather than iwi. As noted, an iwi authority is defined in s 2 as an entity that has the mana/authority to represent the iwi. The Trust Board submits it is clearly insufficient therefore for the Council to merely inform individual members of an iwi, or an entity that does not have representative status. It says informing the Iwi Trust was insufficient to discharge that duty in circumstances where there was a s 30 order in force.
23 See Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd, above n 18, at [52].
The relevance of the s 30 order to the Council’s obligations
[94] As noted, the keystone of the Trust Board’s case is the s 30 order made by the Māori Land Court in 2009 and the Māori Appellate Court’s decision dated 10 December 2020.24
[95] Section 30 of TTWMA provides the Māori Land Court with specialist jurisdiction to advise on or determine representation of Māori groups. The section provides:25
30 Maori Land Court’s jurisdiction to advise on or determine representation of Maori groups
(1)The Maori Land Court may do either of the following things:
(a)advise other courts, commissions, or tribunals as to who are the most appropriate representatives of a class or group of Maori;
(b)determine, by order, who are the most appropriate representatives of a class or group of Maori.
(2)The jurisdiction of the Maori Land Court in subsection (1) applies to representation of a class or group of Maori in or for the purpose of (current or intended) proceedings, negotiations, consultations, allocations of property, or other matters.
(3)A request for advice or an application for an order under subsection
(1) is an application within the ordinary jurisdiction of the Maori Land Court, and the Maori Land Court has the power and authority to give advice and make determinations as the court thinks proper.
[96] Although counsel argued the matter differently, there does not seem to be much dispute as to the purpose and effect of a s 30 order:
(a)The section is intended to address the situation where persons seeking to effect negotiations, consultations, funding allocations or the like in respect of Māori groups are uncertain as to who may have an appropriate mandate. The section is designed to give that certainty so that outside parties may treat or be treated with.
24 Ngāti Paoa Trust Board v Ngāti Paoa Iwi Trust, above n 2.
25 Macrons omitted as per the legislation.
(b)Such an order will not be made lightly, because it supplants the inherent right of iwi to choose their own representatives, but it will be made in response to an established need to provide certainty as to representation for particular purposes.26
(c)The Māori Land Court has both an advisory jurisdiction under subs (a) and a determinative jurisdiction under subs (b). An order under subs (1)(b) is binding on everyone except the Crown.
[97]In this case the order was clearly under subs (1)(b).
[98] Of further relevance, s 30I(4) of the TTWMA specifically gives the Māori Land Court power to review and amend a s 30(1)(b) order to reflect changes of circumstances or fact. The Māori Appellate Court in Ngāti Paoa Trust Board considered this discretion was significant as it enables the Māori Land Court to respond to shifts in representation within Māori collectives.27
First ground of review: were the Council decisions errors of law?
[99] The Trust Board pleads that the following two decisions of the Council are erroneous in fact or law:
(a)the decision in November/December 2013 to recognise the Iwi Trust as the representative of Ngāti Paoa instead of the Trust Board;28 and
(b)the decision on 29 July 2014 to continue to recognise the Iwi Trust as the mandated body.29
[100] Mr Neutze submits that the decision on 29 July 2014 really only confirmed the first decision and that in effect there was therefore only one relevant decision being that made in late 2013. However, there does seem to be a material difference in the
26 At [14].
27 At [23].
28 Statement of claim dated 3 September 2021 at [29].
29 Statement of claim at [35].
information before the Council by 29 July 2014 and it was still well before KPBL’s resource consent application, so I have considered the two decisions as pleaded.
[101] In addition to the two alleged erroneous decisions, the Trust Board pleads as part of this ground of review that the Council:
(a)breached its statutory duty to maintain a record of iwi authorities by removing the Trust Board from its Mana Whenua Register;
(b)breached its statutory duty by failing to notify the Trust Board of the application for resource consent to build the Kennedy Point Marina; and
(c)breached its legal obligation under the Treaty of Waitangi to actively protect the Trust Board’s rights and interests.
The Council’s November/December 2013 decision
[102] The Council had the Trust Board recorded as the relevant iwi authority. There is no dispute as to the correctness of that record at the time.
[103] The Council then received the documentation from Mr Thompson as Chair of the Iwi Trust showing that the Trust Board had transferred day to day management and operations to the Iwi Trust. As noted earlier Mr Thompson was the immediate past Chair of the Trust Board. It is clear from the correspondence that this fact was known to the Council. His letter dated 26 November 2013 was accompanied by a Ministerial letter confirming ratification of the Iwi Trust as PSGE for the iwi, together with election results, and the Trust Board’s September 2013 AGM resolution, which Mr Thompson described as having been passed.
[104] There is now some dispute as to the validity of the AGM resolution, as detailed below in this judgment. But there is no suggestion that the Council was advised at the time of the 26 November 2013 letter of any issue regarding the AGM resolution or the transfer of responsibility. I consider the Council was entitled to take the information received at face value.
[105] On the face of the minutes the AGM resolution had been validly passed and was being forwarded to the Council by the person who was Chair of the Trust Board at the time it was passed. Mr Thompson’s communication with the Council and the documents enclosed were consistent with the resolution having taken effect.
[106] The Trust Board says that even if the resolution is valid it would still have been incumbent upon the Iwi Trust to obtain a new s 30 order confirming any such transfer of mandate to it. Otherwise the s 30 order remained in force until 2018.
[107] The Council says it did not know as at late 2013 of the s 30 order. In my view the Council should be presumed to have known of such an order bearing in mind its duty to keep a Mana Whenua Register and the clear importance of that duty in terms of the legislation cited above.
[108] However, I agree with the Council’s submission that an authority which has the benefit of the s 30 order must be entitled to formally transfer or assign its responsibilities by resolution. I consider this was the position presented to the Council in late 2013. It cannot be the intent of the s 30 process that a formal review of the s 30 order must first be sought. That would unduly restrict the actions and decision-making of the iwi and the mandate holder, in this case the Trust Board. Section 30 is meant to assist the iwi authority and others dealing with them by providing certainty, not to limit the actions of the iwi authority. In fact the latter would in my view be objectionable and contrary to an iwi’s autonomy.30
[109] Ms Feint says that the Council’s decision was in breach of s 35A of the RMA. That submission was made without amplification. In particular, no specific reference was made to s 35A(5), but I consider the registration of the Iwi Trust’s details does not conflict with the s 30 order for the reasons I have just stated. Further, the purpose of the section is to facilitate consultation with iwi and ensure iwi participation. It would defeat the purpose of the section for the Council to be required to publish contact information leading applicants to seek out an entity that the Council perceived had
30 Compare the comments of the Māori Land Court in Ngāti Paoa Iwi Trust v Ngāti Paoa Trust Board - Ngāti Paoa (2018) 173 Waikato-Maniapoto MB 51 at [71]–[72]. In particular, the Court recognised that a 30 order “is in fundamental opposition to the tribe’s right to appoint its own representatives”.
handed over functions to the Iwi Trust, and as it happened for much of the period of 2014–2017 was not fully operative.
[110] The Māori Appellate Court said, and now the Trust Board contends, that the Iwi Trust could not have representative status as it had only two Initial Trustees. The number of trustees and the issue generally would not have been apparent to the Council as at late 2013. The legitimacy or reasonableness of the Council’s decision to change the register as at late 2013 is not affected by the Trust Board’s argument in this regard.
[111] For the above reasons I do not consider there was an error of law in the Council’s decision in late 2013.
The Council’s July 2014 decision
[112] By the time of the second decision, the Council had been advised in March 2014 by Ms Andrews on behalf of the Trust Board of the s 30 order, that it still applied, and that the Iwi Trust would ultimately take over all responsibilities but the process would take some time (and had to await ratification). The Council had also been advised by the Trust Board that in the meantime the Iwi Trust was not representative as it had only two Initial Trustees whereas the trust deed expected a full board of seven, elected by the iwi. Mr Town nonetheless confirmed the Council’s earlier decision.
[113] I have already proceeded on the basis that the Council had presumed knowledge of the s 30 order. The fact it was brought to the Council’s attention in March 2014 therefore makes no difference in that respect.
[114] As to the suggestion that the Trust Board’s AGM resolution did not take effect until later ratification, the Council had received formal documentation in November 2013 apparently concluded by the Trust Board, with the resolution accompanied by the ministerial letter confirming ratification of the Iwi Trust as PSGE. The resolution at the AGM referred to the transfer of day to day management, operations and assets to the Iwi Trust “once ratified” and it was in my view reasonable for the Council to consider that the Minister’s letter was confirming such ratification. That is the very word that was used. The ratification process confirmed in the Minister’s letter had involved the Ngāti Paoa community as a whole. There would be little if any point in
referring these documents to the Council otherwise until “ratification” did occur. Mr Thompson’s communication with the Council and the documents enclosed had no suggestion of delayed effect.
[115] The issue around the two Initial Trustees not having representative status is not supported by the Iwi Trust deed. Although the Initial Trustees were ultimately in place longer than expected due to settlement delays, there is nothing in the deed that explicitly constrains their power to represent Ngāti Paoa. At this point in time, it was still expected that settlement was imminent and the full complement of elected trustees would shortly be appointed. The Council was also aware as of October 2013 that the Chair of the Trust Board had resigned.31 In this context, the reasonable stance of the Council that the mandate had been assigned to the Iwi Trust was not displaced by the apparently new knowledge of the Iwi Trust having only two Initial Trustees.
[116] A number of issues with the AGM resolution were raised in the affidavits filed in this Court. The deponents dispute the legitimacy of the resolution and says that the September 2013 AGM was adjourned prior to lunch and most people, including all but one of the trustees of the Trust Board, left after lunch. The resolution was purportedly passed with few people remaining and no notice had been given that it would be advanced. The Trust Board says that as a consequence the Māori Appellate Court was correct to find that little weight could be placed on the 7 September 2013 resolution.
[117] The Trust Board claims for what is apparently the first time that at least some of these matters were conveyed to the Council by July 2014, but I am not satisfied that is so. Ms Roebeck even suggested in one affidavit that the resolution may not in fact been passed at all. That evidence was confirmed by her counsel on the first day of the hearing, but Ms Roebeck fairly withdrew it on the second day. There was clearly a degree of exaggeration on the part of the Trust Board in its efforts to challenge the July 2014 Council decision.
31 It seems that the Trust Board was in fact, by this time, short of its own mandate as it had only two trustees and was effectively defunct. This was not known to the Council so I do not rely on it as part of my reasoning but it is obviously relevant background information.
[118] Ultimately, I am not satisfied that the Council was provided with additional relevant material beyond that noted at [112]. The issues raised in this proceeding by the Trust Board and before the Māori Appellate Court in terms of the status of the resolution cannot fairly be said to have been before the Council in 2013 and 2014. At most, there is a vague reference in Mr Town’s letter of 13 October 2014 to “issues” having been raised. There is no reference to any issue in the contemporaneous correspondence from Ms Andrews or others on behalf of the Trust Board.
[119] The absence of a resolution revoking the earlier AGM resolution is significant, particularly in light of Mr Town’s letter of 13 October 2014. Ms Feint for the Trust Board submits that it could not revoke a resolution it did not consider had been made, but the Trust Board could of course do so with appropriate wording. And it would have been an easy step to take. If the resolution had been revoked, the Trust Board would presumably also have had to communicate that to the Minister with whatever consequences may follow. In the absence of revocation, it was a reasonable inference that the resolution remained in place.
[120] The advice that was given by Ms Andrews, then Chair of the Trust Board, raised matters that unquestionably needed to be addressed, but the points being made at the time would not have appeared to the Council to be correct. Further, as is apparent from the earlier chronology the Council was not dismissive of the Trust Board’s position, contrary to submissions to that effect. The Council met with Ms Andrews, reviewed the matter, noted the resolution had not been revoked and put the Trust Board on notice that it would continue to deal with the Iwi Trust. Finally I note that at the time of the July 2014 decision Council officers clearly understood that the Iwi Trust and Trust Board were engaging directly with each other to seek to resolve mandate issues. That, in my view, adds to the reasonableness of the Council’s decision.
[121] While I consider the Council’s 2014 decision could have been more prudent, I do not consider it unreasonable or unlawful on the basis of the information known to it at the relevant times, and taking into account the s 30 order.
Breach of duty
[122] As pleaded, the breaches of duty are as set out at [101] above. These were argued as breaches at specific points in time. Consistent with that the Trust Board’s argument was very much focused on the two pleaded Council decisions until late in the hearing, when a request was made to amend the pleading.
[123] In closing submissions, Ms Feint contended that the duties referred to above were ongoing through the entire period between late 2013 and 2018. On the face of the statement of claim, that was not pleaded. At Ms Feint’s request I granted leave to file an application to amend. Instead of doing so, on 14 February 2022 Ms Feint filed a memorandum setting out the Trust Board’s view that the existing statement of claim and submissions addressed all relevant issues. In the Trust Board’s view the Council’s ongoing failure to notify it of the KPBL application is an omission to discharge the legal duties set out at [101]. Ms Feint emphasised this ongoing failure should be considered as a separate error of law from the 2013 and 2014 decisions.
[124] The Trust Board also says the Council did not notify it of the KPBL application during the RMA notification process on 17–18 September 2016. It says the Council was in ongoing breach of its obligation to notify until the Environment Court hearing in 2018, and notably “failed” to mention the application for the Kennedy Point Marina during a meeting in or around July 2017 despite knowing how contentious the marina was. The Trust Board says had the Council done so the Trust Board would still have been able to file an application to be heard as the s 274 party in the Environment Court appeal (with a waiver of time).
[125] Whether identified at a particular point in time or ongoing, the first two of these subsidiary pleadings – breach of duty to maintain a Mana Whenua Register and breach of duty to notify iwi authorities – involve in effect subsequent administrative actions flowing from the 2013 and 2014 decisions, which cannot be separately impugned. The pleaded actions do not involve statutory powers or statutory powers of decision.
[126] As to the third point, there is no freestanding legal obligation on the Council to protect the Trust Board’s interests. The RMA is a code in which there is comprehensive provision, as noted above, for the recognition of Māori and Iwi
interests. The actions and decisions challenged in this case all relate to the RMA. The principle of active protection must be taken into account when exercising functions and powers under the Act.32 However, I do not consider there is a separate legal obligation as pleaded.
71 Urban Auckland v Auckland Council [2015] NZHC 1382, [2015] NZRMA 235.
72 Colley v Auckland Council, above n 70.
neighbour approval forms and the decision was not determinative”. There was therefore a similar delay of three and a half to four years. This alongside other discretionary factors as to prejudice and impact on an innocent third party led the Court to decline relief.
[193] I agree with the Council that the disqualifying delay would relate to all three grounds of review. The delay in relation to the first and second grounds is more extreme than the third. But the three and a half year delay would also be sufficient to refuse relief solely on that ground for the third ground of review, when coupled with the extreme prejudice that would be caused to KPBL and berth holders. As highlighted in the detailed submissions and evidence filed on behalf of KPBL, the total loss incurred would likely be in excess of $15 million, and that is only measuring the loss in monetary terms.
[194] The Trust Board submitted that there is lasting prejudice to Ngāti Paoa that would outweigh the financial prejudice to other stakeholders. It says that Ngāti Paoa have been shut out of its role as kaitiaki, its mana has been undermined, there is severe prejudice to Ngāti Paoa’s tikanga and cultural values, and the mauri of the Bay and thus the iwi will suffer from the effects of the marina. However, it is important to remember that contrary to the way the case was argued, Ngāti Paoa was not shut out of decision-making surrounding the Kennedy Point marina. The dispute is over who was heard on their behalf. The Iwi Trust and its representatives participated without any dispute in the earlier Matiatia Marina application. The representatives who then consulted with KPBL and gave evidence in relation to the KPBL application were legitimate and respected members of the iwi. I consider any prejudice to the Trust Board itself would not be significant in this context.
[195] Second, the first two grounds of review relate to historic decisions. I agree with the Council that the decisions no longer have any relevance for the parties, as the s 30 order was terminated by the Māori Land Court as of December 2018, and that decision was upheld by the Māori Appellate Court. Since then, as an interim measure the Council has been recognising both the Trust Board and the Iwi Trust. I do not consider the first two grounds of review are therefore moot as the Council submits, because there are still decisions that were made between 2013 and the s 30 order being
terminated in 2018. However, I do agree that little actual or practical purpose would be served by granting the declarations sought on the first and second grounds of review and there could potentially be prejudice to the Council and other entities who have engaged in good faith with the Iwi Trust during that period.
[196] Had the Trust Board taken prompt action in 2014 or even early 2015 the issue(s) it raises could have been resolved long before all subsequent decisions, or at least long before work began on the marina or the marina project went unconditional. It would also have meant that the issue would have been resolved long before the Council officers who made the decisions had left the Council and consequential delay and inability to obtain relevant information would not have occurred.
[197] Further, it should now be clear to local authorities that they need to be aware of s 30 orders and act cautiously where disputes arise as to representation, as the Council has now done here by voluntarily agreeing to recognise the Trust Board and the Iwi Trust since December 2018.
[198] The relief sought, if otherwise available, would therefore have been declined for the above reasons.
Conclusion
[199]The application for judicial review is dismissed.
[200] Prima facie the respondents and intervenor are entitled to costs though in some instances at least they might decide not to progress that claim. There is no doubt as to the genuineness of the Trust Board’s position. That position, particularly in terms of opposition to the Kennedy Point Marina, is supported by many.
[201] If agreement cannot be reached, any party seeking costs should file memoranda within two weeks and the Trust Board is to reply within a further week.
Hinton J
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