Ngai Te Hapu Incorporated v Bay of Plenty Regional Council
[2018] NZHC 1710
•11 July 2018
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV2018-470-17
[2018] NZHC 1710
BETWEEN NGAI TE HAPU INCORPORATED
Appellant
AND
BAY OF PLENTY REGIONAL COUNCIL
First Respondent
AND
ASTROLABE COMMUNITY TRUST
Second Respondent
Hearing: 20 June 2018 Appearances:
T L Hovell & N Buxeda for the Appellant M E Casey QC for the Respondents
Judgment:
11 July 2018
REASONS JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 11 July 2018 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors:
Atkins Holm Majurey, Auckland Lowndes, Auckland
NGAI TE HAPU INCORPORATED v BAY OF PLENTY REGIONAL COUNCIL [2018] NZHC 1710 [11 July 2018]
Introduction
On 21 June 2018, I gave a results judgment:1
(a)Granting the application by the Astrolabe Community Trust to dismiss the appeal brought by Ngāi Te Hapū Incorporated against the decisions of the Environment Court granting resource consents, subject to conditions, for the abandonment of the wreck of the MV Rena on and adjacent to Ōtāiti / Astrolabe Reef and the discharge of contaminants from the vessel;2
(b)Dismissing the appeal by Ngāi Te Hapū Inc against the decisions of the Environment Court and vacating the hearing of the appeal set down for 25-27 June 2018 in the Tauranga High Court; and
(c)Lifting the stay of the resource consents granted by the Environment Court in its decision of 19 April 2018.3
[2]In the results judgment, I summarised my reasons as follows:
(a)Ngāi Te Hapū Inc had failed to provide security for costs as ordered by the High Court on 11 April 2018 and failed to provide any explanation as why no steps were taken to raise the security ordered by the Court; and
(b)There was no realistic prospect of the appeal succeeding because:
1 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2018] NZHC 1493.
2 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073; Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 169; Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 180; Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 206.
3 Nga Potiki a Tamapahore Trust v Bay of Plenty Regional Council [2018] NZEnvC 050.
(i)All substantive points of appeal related to the initial decision of the Environment Court delivered on 18 May 2017,4 any appeal against which was well out of time and no application was made for an extension of time;
(ii)There was no merit in the contention that the Environment Court made an error of law when deciding it did not have jurisdiction to require the removal of the wreck in the context of an application for resource consent to abandon the wreck;
(iii)On Ngāi Te Hapū Inc’s own case, the other substantive points of appeal were subsidiary to and intended to buttress the case for removal of the wreck; accordingly, they served little practical purpose if there was no jurisdiction to require removal of the wreck;
(iv)In any event, the other substantive points of appeal related principally to the evaluation of evidence and determinations of fact by the Environment Court and had little merit in the context of an appeal limited to points of law;
(v)There was not and could not be any challenge to the factual findings by the Environment Court that all that could be done to ameliorate the presence of the wreck had been done, and that further works beyond those required by the consent conditions would have detrimental effects on Ōtāiti and would be a safety risk.
[3]This judgment sets out in full the reasons for the above conclusions.
4 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073.
Relevant factual background
[4] On 5 October 2011, the MV Rena, a 235-metre long container vessel, ran aground on Ōtāiti / Astrolabe Reef located approximately seven kilometres from Motiti Island in the Bay of Plenty. Over subsequent months, the vessel broke apart, several hundred tonnes of oil were spilt into the ocean and a significant number of containers were washed off the vessel. The break-up of the vessel and the scattering of cargo, debris and other pollutants was exacerbated by storm events, including Tropical Cyclone Pam.
[5] The Director of Maritime New Zealand issued a series of notices under ss 110 and 248 of the Maritime Transport Act 1994 (MTA) requiring the vessel and its cargo to be salvaged and removed as a “hazard to navigation” and as a “hazardous ship”. In accordance with those notices, the owner and insurer of the Rena vessel made extensive efforts to salvage the vessel and its cargo at an estimated cost of NZ$650 million. This work resulted in the removal of the parts of the wreck above the waterline and accessible cargo and debris within and around the wreck. Volunteers also made extensive efforts to clean up contaminants that had washed ashore.
[6] The salvage efforts stopped when the owners and insurers concluded, following investigations and consultations, that further efforts to remove the rest of the wreck would damage the reef and risk the safety of salvors. The MTA Notices were lifted on 31 March 2016. At that point, s 467 of the MTA, which provides that ss 12, 15, 15A and 15B of the Resource Management Act 1991 (RMA) do not apply to works done in accordance with notices issued under s 248 of the MTA, ceased to apply to the wreck.
[7] As a consequence, the wreck and any discharges from it again became subject to the requirements of those sections of the RMA from 1 April 2016. Under s 15A(2), no person may dump any ship in the marine coastal area unless expressly authorised by a resource consent. Under s 15B(1)(a), no person may, in the coastal marine area, discharge a harmful substance or contaminant from a ship into water unless the discharge is permitted or controlled by, among other things, a resource consent.
Application for resource consents
[8] Even before the lifting of the MTA notices, in May 2014 the Astrolabe Trust applied to the Bay of Plenty Regional Council for resource consents to abandon the remnants of the wreck in the coastal marine area around Ōtāiti and to permit future discharges of identified contaminants. The Trust was established for the purpose of seeking the consents and being the consent holder in the future with responsibility for implementing the consent conditions.
[9] The consent application received 150 submissions, with over two-thirds of the submitters opposed to the granting of the consents. The Council initially decided to refer the application directly to the Environment Court but subsequently referred the application to independent commissioners for decision. After a hearing lasting approximately four weeks, the Commissioners granted the consents subject to extensive conditions.
Appeals to Environment Court
[10] Seven submitters, including Ngāi Te Hapū Inc and Ngā Potiki a Tamapahore Trust, lodged appeals to the Environment Court. A number of other submitters joined as parties by notice under s 274 of the RMA. However, following a court-convened mediation in May 2016 and subsequent negotiations, five of the appellants and most opposing s 274 parties withdrew from the appeal. At the hearing, Ngāi Te Hapū Inc and Nga Potiki, supported by two Ngāti Whakaue-related s 274 parties, opposed the consents. The Astrolabe Trust’s position in favour of the consents was supported by the Regional Council, a number of groups representing interests either in Motiti Island or in iwi or hapū groups in the Bay of Plenty, and the Mount Maunganui Underwater Club.
[11] The Environment Court, comprising two judges, including the Deputy Chief Judge of the Māori Land Court, and two Commissioners, including Commissioner Prime who is of Ngāti Hine, Ngāti Whatua, and Tainui descent, heard the appeals over three and a half weeks. The Court issued a series of four decisions over a seven-month period as follows:
(a)An initial decision made on 17 May 2017,5 in which the Court concluded that consents for the abandonment of the vessel and for the discharge of contaminants should be granted upon conditions similar to those discussed in and annexed to the decision (Initial Decision);
(b)A decision made on 13 October 2017,6 in which the Court decided it had jurisdiction to require removal of various sections of the bow, decided on the conditions that would apply to the consent, subject to further work to be completed on some conditions yet to be finalised, and set the commencement date of the consents as 20 October 2017;
(c)A determination made on 31 October 2017,7 in which the Court issued consolidated consents showing the consent conditions as set in its decision of 13 October and those on which further work was to be undertaken;
(d)A final decision made on 15 December 2017 in which the Court decided the outstanding conditions and issued the final consents with finalised conditions (Final Decision).8
Appeals against Environment Court decisions
[12] By notice dated 30 January 2018, Ngāi Te Hapū Inc and Ngā Potiki a Tamapahore Trust appealed the four decisions of the Environment Court on the ground they were erroneous in law. The notice of appeal identified 15 alleged errors. On 21 March 2018, the appellants filed amended points of appeal listing 12 issues. The appeal was set down for a three-day hearing in the High Court in Tauranga commencing 25 June 2018.
5 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073.
6 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 169.
7 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 180.
8 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 206.
Order for security for costs and subsequent steps
[13] In a decision dated 11 April 2018,9 Lang J refused an application by the appellants for an order waiving the requirement they provide security for costs of the Astrolabe Trust and the Regional Council on appeal. Lang J ordered the appellants jointly to provide security in the sum of $9,000 for the costs of the Astrolabe Trust and
$6,690 for the costs of the Regional Council. Lang J also ordered that if the costs were not paid by 11 May 2018, the Trust and the Council could apply for an order under r 20.13(5) of the High Court Rules dismissing the appeal.
[14] The appellants did not pay the security by 11 May 2018. Instead, on 10 May 2018, the appellants filed an application for leave to appeal Lang J’s decision ordering they pay security for costs. Also on 10 May 2018, the Astrolabe Trust applied for an order dismissing the appeal to the Environment Court.
[15] In a decision dated 22 May 2018, Lang J refused the appellants’ application for leave to appeal his security for costs decision.10
[16] The appellants then filed an application for leave to appeal with the Court of Appeal which heard the application on 11 June 2018. At the hearing, Ngā Potiki advised the Court of Appeal it was no longer seeking leave to appeal the security for costs decision. On 14 June 2018, Ngā Potiki filed a notice abandoning its appeal against the Environment Court decisions.
[17] On 18 June 2018, the Court of Appeal declined the application for leave to appeal with reasons to follow.11
[18] On 20 June 2018, I heard the application by the Astrolabe Trust to dismiss the remaining appeal by Ngāi Te Hapū Inc on the basis that the security for costs ordered by Lang J had not been paid and would not be paid. Mr Casey QC appeared for the Astrolabe Trust and the Regional Council. Mr Hovell appeared for Ngāi Te Hapū Inc.
9 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2018] NZHC 643.
10 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2018] NZHC 1142.
11 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2018] NZCA 202.
Application to dismiss appeal
[19] In Reekie v Attorney-General,12 the Supreme Court set out the policy considerations behind the requirement to pay security for costs. Briefly, these are that the costs regime, including the requirement to pay security for costs, imposes some discipline on litigants, is a disincentive to the commencement of frivolous proceedings and discourages litigation that is disproportionate to the occasion. The Supreme Court confirmed there is nonetheless a discretion to dispense with security to preserve the right of appeal for an impecunious appellant in the case of an appeal which a solvent appellant might reasonably wish to prosecute. However, the Supreme Court also said that discretion should be exercised to prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal that would not sensibly be pursued by a solvent appellant.
[20]Such considerations are relevant in the present case where Ngāi Te Hapū Inc:
(a)Was apparently formed for the purpose of challenging the resource consents sought for the disposal of the wreck of the Rena;
(b)Has no assets;
(c)Has made no efforts to obtain funding to obtain the security ordered by Lang J despite Lang J’s observations that the amount sought by way of security was relatively modest and that it ought to be possible for the necessary funds to be raised through the collective efforts of members of both organisations; and
(d)Is the only party still seeking to challenge consents that had initially attracted more than 150 submissions, most of which were opposed.
[21] In this application, however, I am not required to decide whether Ngāi Te Hapū Inc should pay security for costs. That decision has already been made by Lang J and both Lang J and the Court of Appeal have declined Ngāi Te Hapū Inc’s applications
12 Reekie v Attorney-General [2014] 1 NZLR 737 (SC).
for leave to appeal that decision. Ngā Potiki’s withdrawal from the appeal does not change the fact that Ngāi Te Hapū Inc was required to pay security for costs and has failed to do so and has taken no steps to do so.
[22] The essential question for this Court, therefore, is whether to dismiss the appeal because of the failure to pay the security ordered. The Court of Appeal held in Koyama v Southern Response Earthquake Services Ltd that where there has been a failure to pay the security ordered, the only matter that might save an appeal is if it has real merit.13 I approach this decision on that basis.
Threshold question: is the appeal out of time?
[23] Before considering the substantive merits of the appeal, there is the threshold question of whether the appeal is out of time so cannot succeed regardless of the merits.
[24] In his decision of 11 April 2018, Lang J observed that many of the grounds of appeal related to decisions made in the Initial Decision and any appeal against that decision should have been filed within 15 working days of the appellants being notified of that decision. He also noted that while the High Court may grant leave to appeal out of time, no application for an extension of time had been received. Despite those observations, the appellant did not apply for an extension of time. Instead, Mr Hovell argued before me that the four decisions of the Environment Court were interrelated and the initial decision was conditional upon the matters decided in the later decisions so was not final. Accordingly, he said an appeal lodged within time against the Final Decision could also challenge issues addressed in the earlier decisions.
[25] I do not agree. While the Environment Court states in the Initial Decision that consent for the abandonment of the vessel and for the discharge of contaminants from the vessel “… should be granted upon conditions of consent similar to those discussed in this decision …”,14 that does not mean the initial decision was itself conditional or
13 Koyama v Southern Response Earthquake Services Ltd [2015] NZCA 472 at [17].
14 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073 at [411].
provisional. The initial decision was, in terms of s 299 of the RMA, a decision of the Environment Court. In accordance with s 300 of the RMA, any appeal against that decision should have been within 15 working days of Ngāi Te Hapū Inc being notified of the decision.
[26] Ngāi Te Hapū Inc’s Notice of Appeal dated 30 January 2018 listed 15 errors of law. These were supposedly refined in the 12 points of appeal filed on 21 March 2018. For the purposes of this decision, I refer to the nine headings addressing the alleged errors of law as set out in the Ngāi Te Hapū Inc’s legal submissions of 18 May 2018 to which Mr Hovell spoke at the hearing.
[27] Of those nine headings, seven relate directly to the hearing held before the Initial Decision and to findings made by the Environment Court in the Initial Decision. These are alleged errors regarding:
(a)The Environment Court’s jurisdiction to require removal of the wreck;
(b)The consideration of expert evidence;
(c)The consideration of effects on peoples and communities;
(d)The factual finding that all that can be done has been done;
(e)The consideration of past effects on the environment;
(f)The consideration of “offset mitigation”;
(g)The consideration of the principles of the Treaty of Waitangi.
[28] None of these matters is dependent or conditional upon the subsequent decisions of the Environment Court. Accordingly, if Ngāi Te Hapū Inc wished to challenge the Court’s decisions on those matters, it should have filed an appeal within 15 working days of receiving that decision. Since the Initial Decision was issued on 18 May 2017, it can be assumed that any appeal should have been filed by 9 June 2017
– some seven months before the appeal was lodged.
[29] One of the other two headings deals with the conditions of consent. While an appeal against consent conditions may or may not go to the merits of whether a consent should have been granted, the objection raised by Ngāi Te Hapū Inc in this case cannot bear directly on the substantive question of whether consent should have been given to abandon the wreck. The error alleged in the notice of appeal and in the points of appeal asserted that the condition regarding the removal of pieces of the wreck, that is the bow, was unlawful. The Court had already decided in the Initial Decision that consents to abandon the vessel and for associated discharges should be granted before it decided it had jurisdiction to impose a bow removal condition.
[30] Moreover, the Court’s decision that it had jurisdiction to impose a bow removal condition was made in its decision dated 13 October 2017. The detail of the condition was set out in the decision dated 31 October 2017. Either way, the appeal period had long since expired by the time the notice of appeal was filed on 30 January 2018.
[31] The remaining challenge is on the question of costs. It does relate to the Final Decision and so is not out of time. However, while Ngā Potiki sought costs, Ngāi Te Hapū did not.15 Accordingly, following the abandonment of the appeal by Ngā Potiki, the appeal in respect of costs is not relevant to Ngāi Te Hapū Inc, the only remaining appellant. Moreover, the question of costs does not go to the merits of whether the consents should have been granted.
[32] The net result is that only one of the grounds of appeal – that relating to the costs – is within time but it is not relevant to the question of whether the merits of the appeal save the appeal from being struck out for failure to pay security for costs. On that basis alone, there are very strong grounds for striking out the appeal.
Substantive merits of appeal
[33] In his decision of 11 April 2018, Lang J made a preliminary assessment of the merits and observed that while the appellants enjoyed a right of appeal to the High Court on points of law under s 299 of the RMA, several of the grounds of appeal appeared to challenge factual decisions of the Environment Court. However, as Lang J
15 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 206 at [41].
noted in his decision of 22 May 2018, a court considering an application of waiver of security for costs cannot realistically be expected to engage in a detailed examination of the merits.16
[34] I have had the benefit of Ngāi Te Hapū Inc’s written submissions prepared for the substantive hearing and at the hearing of the application Mr Casey handed up the Astrolabe Trust’s submissions on the substantive appeal. I also had the benefit of oral submissions on the merits. Taken together, these provided an adequate basis to reach a clear view on the merits of the appeal even if the discussion was necessarily more focused than would have been the case at the scheduled three-day hearing.
Nature of appeal
[35] It was established by a Full Court of this Court in Countdown Properties (Northland) Ltd v Dunedin City Council, the Court will interfere with the decision under appeal only if it considers the decision-maker:17
(a)Applied a wrong legal test; or
(b)Came to a conclusion without evidence, or one to which, on the evidence, it could not reasonably have come; or
(c)Took into account matters which it should not have taken into account; or
(d)Failed to take into account matters which it should have taken into account.
[36] In that decision, the Court also held that the Environment Court should be given some latitude in reaching findings of fact within its area of expertise and that any error of law must materially affect the Court’s decision before the High Court should grant relief.18
16 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2018] NZHC 1142 at [16].
17 Countdown Properties (Northland) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153- 154.
18 At 154.
Jurisdiction to require removal of the wreck
[37] Whether or not the Environment Court had jurisdiction to require the removal of the wreck is a question of law. That is so regardless of the fact that the Tribunal noted that further works to remove the wreck would have a detrimental effect on the reef and would be a safety risk for divers and that, in any event, little further could be done with respect to the aft section which is in deep water and is unlikely to move.19
[38] Even so, it is curious that Ngāi Te Hapū Inc brought an appeal on this point given that the Environment Court recorded in its decision that Ngāi Te Hapū Inc had conceded at the hearing that the Court could not order the removal of the wreck.20 Mr Casey sought to reinforce the force of that concession by handing up a copy of the legal submissions of the iwi appellants at the hearing of the Environment Court appeal in March 2017 in which it was stated that “ … as the Court does not have jurisdiction to order removal of the wreck, all Iwi appellants seek that the Court declines the consents.” Mr Casey referred to the decision of the House of Lords in Grobbelaar v News Group Newspapers Ltd where Lord Bingham of Cornhill said:21
[21] Only rarely, and with some extreme caution, will the House permit counsel to withdraw from a concession which has formed the basis of argument and judgment in the Court of Appeal.
[39] The point at issue in this case is a question of law. Its validity is not dependent on a concession by one of the parties, even if it is frustrating for both the Astrolabe Trust and the Regional Council that Ngāi Te Hapū Inc seeks to relitigate a point it conceded at the Environment Court hearing. In that respect, the situation has some parallel with that in New Zealand Meat Board v Paramount Export Ltd (in liq) where the Privy Council considered whether to allow a concession made at an earlier stage of the proceeding regarding the construction of the contract at the centre of the dispute to be withdrawn.22
[40] For these reasons, I do not consider the concession made before the Environment Court to be determinative.
19 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073 at [146]-[147].
20 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073 at [131].
21 Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024 (HL).
22 New Zealand Meat Board v Paramount Export Ltd (in liq) [2004] UKPC 45, [2005] 2 NZLR 447.
[41] The Environment Court’s decision does not set out the basis of its conclusion that it had no jurisdiction to require the full removal of the wreck. The Ngāi Te Hapū Inc submissions postulate that the Court’s conclusion was based on positions taken by the Astrolabe Trust and the Regional Council regarding the scope of the application, the power to impose conditions and the contention that full wreck removal would require a further resource consent under s 12 of the RMA. In any event, Ngāi Te Hapū Inc submitted that the Environment Court’s conclusion was wrong and that, when considering the application, the Court had power under ss 15A and 108 to consider all options ranging from full abandonment to full removal of the wreck and could have imposed a condition requiring full removal.
[42] This submission does not recognise the difference between the matters the Court may consider when deciding whether or not to grant the consent and the matters it may consider when deciding what conditions to impose if the Court decides to grant the consent.
[43] There is no doubt that in considering an application for consent to abandon the Rena the Environment Court could properly consider – and did consider – all options ranging from full abandonment to full removal of the wreck. Had the Court decided the wreck should be removed – that is, that it should not abandoned as sought in the consent application – the logical course would have been to decline the consent sought. In that eventuality, the continued presence of the wreck on the reef and whether and how it could be removed would have been matters for the owners, insurers and Bay of Plenty Regional Council because of the requirements of s 15A of the RMA. They would not, however, have engaged the jurisdiction of the Environment Court in the context of the resource consent applications.
[44] It is clear from the Court’s decision that it accepted that full removal was not a practical or appropriate option having regard to the risks of adverse impacts on the environment and to human safety. However, had the Court not reached that conclusion, it could not have imposed a condition requiring full removal of the wreck.
[45] As confirmed by the Supreme Court in Waitakere City Council v Estate Homes Ltd,23 there is a common law requirement, as expressed by the House of Lords in Newbury District Council v Secretary of State for the Environment,24 that resource consent conditions must be imposed for the purposes of the RMA, must fairly and reasonably relate to the permitted activity and must not be unreasonable. A condition that negates the purpose for which the consent is sought cannot fairly and reasonably relate to the permitted activity and would be unreasonable.
[46] A condition to require the removal of the wreck could not fairly and reasonably relate to a consent to abandon the vessel and would be unreasonable. Accordingly, whether the matter is framed as one of jurisdiction or power, the Environment Court was correct to hold that it could not require the full removal of the wreck and the appeal on this point could not succeed.
Other alleged errors
[47] On Ngāi Te Hapū Inc’s own case, the other substantive points of appeal were subsidiary to and intended to buttress the case for removal of the wreck. They serve little practical purpose if, as I have held, there was no jurisdiction or power to require removal of the wreck in the context of the resource consent application. In addition, there is a question as to whether the remaining errors alleged by Ngāi Te Hapū Inc are genuinely questions of law or are really challenges to evaluations made and facts found by the Environment Court and therefore outside the scope of an appeal under s 299 of the RMA. Nonetheless, for completeness and given the impact of the grounding of the Rena and its aftermath, I have considered each of the remaining grounds to assess their merit.
Consideration of expert evidence
[48] Ngāi Te Hapū Inc says the Court treated Commissioner Prime as if he were an expert when he had not qualified himself as such and points to one paragraph of the Environment Court’s decision which records Commissioner Prime’s observation about the state of the reef as it appeared when the Court made a visit to the site. It also
23 Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007] 2 NZLR 149 at [20].
24 Newbury District Council v Secretary of State for the Environment [1981] AC 578 (HL).
says the Court relied on its observations from the site visit in preference to the expert evidence.
[49] Neither contention has merit. They show a misunderstanding of the role of Environment Commissioners and a misreading of the Court’s decision.
[50] Commissioners are chosen because they have relevant expertise and experience. It is logical and appropriate that they bring that expertise and experience to bear in carrying out their responsibilities as Commissioners. There is nothing inappropriate in the Court taking into account the views of a Commissioner based on that experience and expertise.
[51] There is no validity to the suggestion the Court relied on its own expertise and on the site-visit in preference to the expert evidence before it. The paragraph in question ([105]) records the Court’s own impressions of the state of the reef and the comments made about the mauri of the reef by the Court’s distinguished Māori Commissioner at the end of the site visit. That paragraph follows 10 paragraphs in which the Court recorded the views of experts and other witnesses on the mauri of the reef. A number of those experts and witnesses considered the mauri of the reef was restoring itself despite the presence of the wreck.25 Paragraph [105] concludes:
Given the evidence we have heard and what we saw ourselves, we are persuaded that the reef is recovering its mauri.
[52] It is plain, therefore, that the Court had regard to the evidence in reaching its conclusion about the mauri of the reef.
[53] The related assertion the Environment Court relied on evidence not before the Court, that of Dr Hikuroa, is also without foundation. That claim relates to the Court’s reference to another Environment Court decision which considered the model for the restoration of mauri in that case. The Court in this case simply recalled what Dr Hikuroa said in that case about the use of the model and expressed the view that this would be a good idea should the Court decide to grant the consent with conditions. Nothing turned on that reference and it provides no basis for an appeal point.
25 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073 at [101].
Consideration of effects on peoples and communities
[54] Ngāi Te Hapū Inc’s written submissions assert on the one hand that the Environment Court failed to identify the principal issues and on the other hand assert that the Court was in error to hold that the single relevant issue was the state of the mauri of the reef.
[55] Neither contention is accurate. The Court did identify the principal issues. But it did not say that the state of the mauri of the reef was the single relevant issue. What the Court said was:
[94] … there is really only one issue that is immediately relevant to the issues before us – and that is the state of the mauri of the reef. Other values raised we have touched upon above; or we refer to those as they inform the values and tikanga associated with mauri.
[56] In other words, the Court said that the mauri of the reef was the principal issue which bore on and informed the other issues it considered including the values and tikanga associated with mauri. This necessarily involves people and communities.
[57] In oral submissions, Mr Hovell clarified that Ngāi Te Hapū Inc’s essential point was that the Environment Court failed to consider adequately the effects on Māori of not requiring the removal of the wreck and in that respect failed to discharge its responsibilities under s 6(e) of the RMA which requires the Court to recognise and provide for:
The relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga.
[58] This is a startling submission given the many paragraphs in the Initial Decision that discuss the relationship of Māori to Ōtāiti, Motiti Island, and the wider region, and in which the Court makes specific findings as to the exercise of mana moana over Ōtāiti, mana whenua over Motiti, ahi kā rights at Motiti, including kaitiakitanga responsibilities and customary use rights, and when the Court found, with explicit reference to s 6(e), that:26
26 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073 at [38].
… the evidence demonstrates that there are different layers of relationship, cultures and traditions with Ōtāiti that require different forms of recognition and protection.
[59] Those findings, which Mr Hovell confirmed are not challenged by Ngāi Te Hapū Inc, informed the Court’s consideration of the mauri of the reef and the attitudes of Māori towards the application and thus its decision that the resource consents should be granted.
[60] Upon further questioning of Mr Hovell, it appeared that the essence of the Ngāi Te Hapū Inc submission was that the Court had failed in its responsibilities under s 6(e) because it had not recognised and provided for the views of Ngāi Te Hapū Inc, which are that the wreck should be removed. However, as this case illustrates, in any given situation there may not be any one Māori view or even one hapū view of how to recognise and provide for the matters identified in s 6(e). In this case, there was a spectrum of views among Māori about whether the wreck should be removed. The Court acknowledged that Ngāi Te Hapū Inc was opposed to the granting of consents to allow the wreck to remain. At the same time, there was clear evidence that other Māori, including Ngāi Te Hapū with mana whenua over Motiti and mana moana over Ōtāiti, supported the granting of the consents to abandon the wreck.27 That meant it was not possible for the Court to recognise and provide for all Māori views in the context of deciding the application before it.
[61] In such a situation where the Environment Court has considered all the evidence, as it clearly had, the Court cannot be faulted for not giving effect to the views of those who opposed the consents. The submission of Ngāi Te Hapū Inc really amounts to a complaint that the Environment Court should have preferred its view and evidence over the views and evidence of others. That is not a question of law.
The factual finding that all that can be done has been done
[62] As Mr Casey pointed out, this is not one of the 15 grounds of appeal in the notice of appeal dated 30 January 2018 or one of the 12 points in the points of appeal dated 31 March 2018. Even if I put that significant obstacle aside, the Commission’s
27 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073 at [58].
findings that all that could be done had been done in respect of the reef and that further works would not only have detrimental effects on the reef and would be a risk to human safety28 are factual findings. They are not questions of law.
[63] Ngāi Te Hapū Inc’s written submissions try to circumvent that difficulty by asserting that the finding was premised on the effects assessment, which Ngāi Te Hapū Inc has also challenged, and on an incorrect reliance on Mr Te Kowhai as an expert witness.
[64] That submission cannot succeed. I have already rejected the alleged effects assessment errors. The Environment Court did not rely on Mr Te Kowhai’s evidence alone in reaching the above conclusion. Paragraphs [136] – [146] of the decision show the Court took into account the evidence of Mr Barry Wilkinson, who was called by the appellants, as well as that of Captain King, who was in charge of the salvage operation, and Dr Paul-Burke, a marine scientist. Nor did the Court regard Mr Te Kowhai as an “expert” in the technical sense of that term. Rather the Court considered that Mr Te Kowhai had “significant expertise” because of his experience and involvement in salvage operations and in work on the site and concluded that his evidence “was both illuminating and honest”.29 The Court was entitled to reach those conclusions and to rely on the evidence of Mr Te Kowhai even if he was not giving evidence as an “expert”.
Consideration of past effects
[65] Ngāi Te Hapū Inc says that the Environment Court made an error of law by disregarding the past effects on the environment of the wreck and its aftermath. It also says the Court failed to consider past effects as part of the cumulative effects of the wreck on the environment.
[66] Those submissions do not accurately describe the approach of the Environment Court. The Court did not disregard past effects as such. It decided that the relevant date for assessing the effects caused by the wreck was 1 April 2016, the date the MTA
28 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073 at [146].
29 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073 at [138].
notices ceased to operate and the requirements of the RMA applied. That is a question of law. But that decision was made in the context of important factual findings. In particular, the Court decided there were practical difficulties in trying to assess the state of the environment prior to the wreck or at the time of the wreck.30 That is a finding of fact not reviewable on appeal on a question of law. Even so, in assessing the state of the environment at that time, the Court did take into account the effects of the wreck at the time of the grounding and afterwards as well as the effects of the clean-up work carried out before and during the salvage operations.31
[67] But even if the Court had been able to consider more fully the state of the environment before the wreck occurred, it does not follow that the Court would have reached a different decision on the ultimate question of whether or not to grant the resource consents to permit the abandonment of the wreck and the release of the associated discharges. Regardless of the state of the environment prior to the wreck, the wreck had occurred and adverse effects on the environment had ensued. Those realities cannot be wished away in a theoretical exercise to compare the effects of leaving the wreck in place with the state of the environment before the wreck occurred, particularly when the Court had concluded that all that could be done in respect of the reef from wreck removal had been done and that further works would be detrimental to the reef and a risk to human safety. That conclusion applied regardless of past effects.
Significant adverse effects
[68] Ngāi Te Hapū Inc says the Environment Court failed to have regard to the original decision by the Commissioners and therefore failed to comply with s 290A of the RMA which requires the Environment Court, in determining an appeal, to have regard to the decision that is the subject of the appeal. In particular, Ngāi Te Hapū Inc says that, unlike the decision of the Commissioners, the Court’s decision failed to determine the magnitude of the effects which it asserts is required by the RMA and relevant planning documents. I understood from Mr Hovell that the essence of the complaint is that the Court did not find that the adverse effects of the proposed activity
30 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073 at [125].
31 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073 at [320]-[323].
on Māori cultural values and on natural character were “significant”. Ngāi Te Hapū Inc also says the proposed Regional Coastal Environment Plan was deficient in referring to the wreck as part of the existing environment and, in those circumstances, the Court should have had regard directly to Part 2 of the RMA in accordance with the Supreme Court’s decision in Environmental Defence Society Inc v New Zealand King Samon Co Ltd.32
[69] The practical purpose of these submission is hard to discern. If the Commissioners got the analysis right, as Ngāi Te Hapū Inc says was the case, and granted the consents anyway, the alleged shortcomings in the Court’s decisions clearly made no practical difference to the result. But putting that consideration aside, the Ngāi Te Hapū Inc submission is not factually or legally accurate.
[70]First, the Environment Court did have regard to the Commissioners’ decision
– see, for example, [13] where the Court states, “we have had particular regard to the Commissioners’ decision at first instance” and [124] where the Court states “We have considered the Commissioners’ decision under s 290A of the Act.” The Court also referred to the Commissioners’ decision in [327]-[328] when asking itself the question:
“How would the refusal of this consent better recognise and provide for the relationship of Māori and for the kaitiaki functions than the granting of the consent?”
[71] Since the Court had its own extensive hearing and came to the same overall conclusions as the Commissioners, it is not surprising the Court’s decision did not refer to the Commissioners’ decision at greater length. It is clear from Man O’War Station v Auckland Regional Council33 that a decision to depart from the Commissioners’ decision gives rise to an expectation of a fuller explanation as to why a Court has reached a different conclusion from the Commissioners. That was not the case here.
[72] Secondly, when deciding an application for a discretionary activity, there is no duty under the RMA to determine the magnitude of effects. The obligation in s 104 (1)
32 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593.
33 Man O’War Station v Auckland Regional Council [2011] NZRMA 235 (HC).
of the RMA is “to have regard to” the actual and potential effects on the environment. There is no doubt the Environment Court do so in this case.
[73] Thirdly, the Court did make findings about the adverse effects on Māori cultural values (at [314]-[331]) after extensive consideration of the views of iwi, hapū and other Māori groups on whether the wreck should be permitted to remain. It also made findings on the effects on natural character, including within the framework of the Regional Policy Statement and the proposed Regional Coastal Environment Plan.
[74] Fourthly, regardless of whether or not the proposed Regional Coastal Environment Plan is deficient in the way alleged by Ngāi Te Hapū Inc, the Court gave thorough and appropriate consideration to Part 2 of the RMA so that aspect of the King Salmon decision is not engaged.
Offset mitigation
[75] Ngāi Te Hapū Inc takes issue with the Environment Court’s reference to “offset mitigation” which it says was material to the Court’s decision and conflated the concepts of mitigating effects caused by the activity for which consent is sought and the positive effects of actions proposed by the Astrolabe Trust as offsets to the adverse effects of the activity.
[76] Again, it is difficult to discern the practical purpose of this submission. Mr Hovell confirmed at the hearing that Ngāi Te Hapū Inc recognises the value of the offset conditions and does not seek to change them. Moreover, while Fogarty J in Royal Forest & Bird Protection Society of New Zealand v Buller District Council34 stressed the need to distinguish between direct mitigation of adverse effects and steps that offset such effects, that does not mean that steps taken to assuage the impacts of those adverse effects are inappropriate let alone unlawful, particularly in a situation such as the present where there is limited ability to address the adverse effects directly.
[77] In addition, Ngāi Te Hapū Inc’s submission overlooks the fact that the conditions imposed as “offset mitigation” were not the only conditions the Court
34 Royal Forest & Bird Protection Society of New Zealand v Buller District Council [2013] NZHC 1346.
imposed to address the cultural effects of granting the consent. It is clear from Court’s second decision that the conditions imposed to require the removal of sections of the bow that may separate from the wreck were imposed in order to avoid damage to the environment, cultural damage, navigational risk and risk to recreational divers and boats.35
Treaty of Waitangi
[78] In its Points on Appeal, Ngāi Te Hapū Inc said the Environment Court did not apply the proper legal test in applying ss 5, 6, 7 and 8 of the RMA and failed to consider the “substantive implications” of the principles of the Treaty of Waitangi. In its submissions, Ngāi Te Hapū Inc said the Court focused on the efforts of the applicant rather than on its own obligations under s 8. The submission made reference to King Salmon and other Supreme Court and High Court decisions in support of an invitation to comment on the “substantive implications” of the principles of the Treaty of Waitangi.
[79] I do not agree that the Court focused on the efforts of the applicant rather than on its own obligations under s 8. That is clear from the opening sentence of that part of the Initial Decision:36
[106] Under section 8 of the RMA, and in achieving its purpose, we must take into account the Treaty of Waitangi. …
[80] The rest of that paragraph and the following paragraph discuss the finding of the Waitangi Tribunal that Ōtāiti is a taonga of considerable importance, the Court’s own findings that the tangata whenua of Motiti Island have mana whenua over Motiti and mana over Ōtāiti, and the principles the Waitangi Tribunal considered relevant to claims concerning the Rena. All of these matters relate to the obligations of the Court under s 8 of the RMA. The analysis went well beyond purely procedural considerations, for example, going to the principle of partnership, the exercise of kāwanatanga and kaitiakitanga and the duties of active protection of taonga. There is
35 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 169 at [14].
36 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073.
no need for further comment on the scope of the “substantive implications” of the principles of the Treaty of Waitangi.
[81] It was also entirely appropriate for the Court to consider the efforts made by the applicant to engage with iwi and hapū affected by the disaster and who were affected by the application in order to satisfy itself as to the adequacy of the consultation with Māori.
Unlawful conditions
[82] As noted at [29], the appeal point on conditions of consent challenged the lawfulness of the condition requiring removal of pieces of the bow if they should become a hazard to navigation or risked significant ecological or cultural damage. Ngāi Te Hapū Inc did not pursue that aspect before me and conceded that on their face the conditions as a whole were not unlawful. Indeed, in response to my question, Mr Hovell acknowledged Ngāi Te Hapū Inc wanted conditions such as these in place. That at least is consistent with Ngāi Te Hapū Inc’s otherwise curious position of opposing the consents but also opposing the stay of the consents pending the hearing of its appeal.
[83] Nonetheless, the Ngāi Te Hapū Inc submits that the conditions are based on errors of law by which the Environment Court deferred its decision-making function and so failed to assess effects and determine the appropriate planning response. This assertion is based on a few passages in the Court’s decisions in which the Court referred to the desirability of assessing future effects as circumstances evolve.
[84] There is no substance to this contention. The Environment Court’s decisions make clear that the Court assessed the effects at the time of its decisions of allowing the wreck to be abandoned but recognised that circumstances might change so made provision for ongoing monitoring and investigation. That was appropriate and lawful.
Conclusion
[85] For the above reasons, there is no merit in any of the substantive grounds of appeal, all of which were well out of time. As a consequence, there is nothing to set
against the fact that Ngāi Te Hapū Inc failed to provide the security ordered by the High Court. Dismissal of the appeal is inevitable.
Costs
[86] As requested by Mr Casey, costs are reserved for further submissions if necessary.
G J van Bohemen J
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