Ngai Tumapuhiaarangi v Carterton District Council HC Wellington Ap6/01

[2001] NZHC 555

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY AP6/01

UNDER Section 299 Resource Management Act 1991

AND IN THE MATTER of an appeal against the Environment Court

BETWEEN NGAI TUMAPUHIAARANGI HAPU ME ONA HAPU KARANGA by and through TAKIRIRANGI SMITH
Appellant

AND CARTERTON DISTRICT COUNCIL
First Respondent

AND GLENDON TRUST PARTNERSHIP
Second Respondent

Hearing: 11 May 2001

Counsel: T Woods for Appellant
D J Turley for First Respondent
R D Clark for Second Respondent
A J Beatson for Wellington Regional Council

Judgment: 25 June 2001

JUDGMENT OF CHISHOLM J

Solicitors:
D Hall, Woodward Chambers, Wellington for Appellant (Counsel: T Woods) Wollerman Cooke & McClure, Carterton for First Respondent (Counsel D J Turley) Norris Ward McKinnon, Hamilton for Second Respondent
Russell McVeagh, Wellington for Wellington Regional Council

[1] This appeal from a decision of the Environment Court concerns a subdivision at Flat Point, on the eastern Wairarapa coast. After presenting brief submissions counsel for the first respondent and counsel for the Wellington Regional Council were granted leave to withdraw on the basis that they reserved their position in the event that this appeal resulted in any of the conditions of consent being revisited. Consequently the appeal was contested by the appellant and the second respondent, the latter being the subdivider.

[2] Maori communities have been present in the area for over 800 years. Ngai Tumapuhiaarangi are a hapu ki Ngati Kahungunu. The hapu claims tangata whenua status over the land in issue. Since the appeal was heard counsel for the second respondent has informally provided further information to the Registrar (with a copy to counsel for the appellant) for the purpose of rebutting the appellant’s assertion that it is the only group that can rightfully claim tangata whenua status in relation to the land. While I can understand that counsel felt he had an obligation to pass this information on to the Court, the provision of information in this way after a hearing has concluded is unsatisfactory and I decline to take it into account when determining the appeal.

Background

[3] The second respondent owns coastal flats at Flat Point which are zoned “Rural Environment” under the Carterton District Council District Plan (operative on 17 March 2000). This is cleared land which has been farmed for many generations. In terms of that Plan subdivision down to a minimum lot size of 3 ha is a controlled activity. Below that lot size subdivision is a discretionary activity.

[4] Consent was sought by the second respondent to subdivide part of its land (comprising 9.97 ha) into 39 residential allotments ranging in size from 1200M2 to 2720M2. The land to be subdivided is located a short distance from the coastline and it is common ground that the subdivision is not within the coastal marine area. The application for subdivision consent was opposed, inter alia, by the appellant, an Iwi Authority and other Maori interests on the basis that the site was waahi tapu (sacred place) of great importance. In due course consent was granted by the Council, but subject to numerous conditions.

[5] Appeals to the Environment Court were lodged by the appellant, the second respondent and others. However, before the appeal was heard all parties to the appeal other than the appellant reached an agreement which involved some modification to the Council’s decision. This agreement was incorporated in a draft “consent” memorandum for the Environment Court. It was not, of course, a true consent memorandum because the appellant was not involved in its formulation. It was indicated from the Bar that the appellant declined to be involved because it realised that the mediation would only address the conditions imposed by the Council and would not attempt to address the appellant’s underlying repugnance towards the subdivision.

[6] The hearing before the Environment Court extended over two days. Mr Smith and a Mr Paku, both tangata whenua and kaitiaki of the resources of the region, gave evidence on behalf of the appellant. Technical aspects of the subdivision were not challenged and a landscape architect, an engineer, a surveyor and an archaeologist called by the second respondent were not cross-examined. Evidence in support of the subdivision was given by Mr Gemmell, a Maori landowner in the neighbourhood who had ancestral connections with the site in question. By reserved decision the Environment Court modified the Council’s decision by adopting the modifications proposed in the draft consent memorandum. In all other respects the appeal was dismissed.

The Environment Court’s Decision

[7] Having reviewed the history of the site and discussed the proposed subdivision, the Environment Court embarked on a detailed review of Mr Smith’s evidence about the cultural and spiritual significance of the site to Ngai Tumapuhiaarangi. The Court recorded:

“[28] Mr Smith made it clear that in terms of the whakapapa korero for Ngai Tumapuhiaarangi, the Trust Partnership land is an especially sacred site. Any interference will constitute a desecration and the takahi mana of the hapu. To Ngai Tumapuhiaarangi the subdivision will involve the desecration of an important heritage resource site.

[29] It was Mr Smith’s evidence that Te Unuunu is part of his people’s whakapapa korero which has spiritual and cultural significance through the generations of ancestors that have lived there and the stories associated with them.

. . .

[35] Mr Smith stated that the intrusion of the proposed development will have metaphysical implication for the ecosystem and the hapu’s wellbeing. It will interfere with the wairua or spirituality of the area for his people and will no longer be a place of rangimarie or spiritual peace. It will become a place of taupatupatu where spiritual elements within the environment clash with each other. For the hapu of Ngai Tumapuhiaarangi in general, the proposed development is seen to represent a takahi mana, or a desecration of the mana and tapu of the tribe.

[36] More particularly, Mr Smith explained that the managed desecration through the identification and isolating of artefacts as they will be found on the development site will also be takahi mana. The proposal to use an archaeologist to “clear” the area will thus have no meaning for the tangata whenua. Karakia whakawhatea or clearing rituals to protect those interfering with individual artefacts may be employed, but this does not remove the tapu from the site or from the artefact. It merely protects those who are interfering with the artefacts. Mr Smith deposed that the takahi mana or the trampling of our tribe will impact socially for the families of the tribe and the generations that follow. And he identified there is more than one urupa in the area.”

These paragraphs have been reproduced to illustrate the appellant’s depth of feeling about the issues before the Court which, it can be inferred from the Court’s decision, were accepted as entirely genuine. The Court also described the alienation of land in this neighbourhood as a “sore grievance”.

[8] The proposal was construed as a discretionary activity to which the provisions of s 104 of the Resource Management Act applied. In terms of that section the Court noted that the consent authority was required to have regard, inter alia, to any actual and potential effects on the environment of allowing the activity, to relevant planning instruments and to any other matters the consent authority considered relevant and reasonably necessary to determine the application. With reference to effects the Court noted that Mr Smith had not challenged the proposal’s provisions at all except insofar as its challenge related to ss 6, 7 and 8 of the Act (Maori cultural and spiritual matters) and it accepted that there were no major adverse actual or practical effects from the proposal itself.

[9] Two primary issues raised by the appellant were then identified and evaluated by the Court: first, whether the development was contrary to relevant planning provisions; and, secondly, Part II matters and iwi values (including an alleged lack of adequate consultation). The Court’s evaluation of those two issues is discussed in the following paragraphs.

[10] After considering various planning instruments the Court concluded that the development did not conflict with “most of the relevant objectives and policies relating to tangata whenua issues” and that it was important to note that the subdivision site had not been identified in Appendix 12A to the District Plan. A number of observations which are central to the issues raised by the appellant were then made:

“[47] . . . whilst it is the aim of the proposed plan to protect the heritage resources of the district, it is only to do this by whatever means are the most appropriate. We cannot avoid looking at what the planning instruments provide for as of right by way of land use for the site, simply because counsel for [the appellant] did not refer to them.

[48] [The appellant] stated in cross-examination that even one house on the subdivision site would still create all the problems he had identified for the hapu, while Mr Paku considered that a three lot (sic) subdivision would similarly not be acceptable. But if we turned down this development, the Trust Partnership could develop the land in any event into 22 three hectare lots as a controlled activity. The council identified this as one reason for favouring the current proposal.

[49] We had no evidence that Ngai Tumapuhiaarangi ever challenged the district plan provisions in times past which awarded such subdivisional rights to the owner of this land. Under the controlled activity provisions any challenge can be mounted to the conditions of consent only, as a matter of law, not to the proposal as a whole.

[50] And nor do we see the word “protection” of sites such as Te Unu Unu as synonymous with ‘prohibition” of development. “Protection” may take many forms and in the circumstances of this case, may be considered to be appropriate if realistic and achievable.”

It was noted by the Court that the Council and parties other than the appellant had addressed Maori cultural and spiritual issues in the draft consent memorandum tabled at the hearing. It concluded that through the revised conditions and agreements the site was now recognised as of significance to the iwi in the area who would now be officially recognised as kaitiaki. Thus the Court believed that some form of cultural protection for the site was available. It was accepted by the Court that a special place for Ngai Tumapuhiaarangi had not been identified in the arrangements but it commented that it did not consider that to be a matter for it but rather for the Waitangi Tribunal or the Maori Land Court. In the end result the Court saw what was proposed as the “most realistically achievable” in the circumstances of the case.

[11] Attention was then directed to the second primary issue, namely, Part II of the Act and iwi values. The Court recorded that it had applied ss6(e), 7 and 8 of the Act. Whilst acknowledging that there had been inadequate consultation at the outset, the Court considered that since the Council decision the parties had gone to some length to involve Ngai Tumapuhiaarangi in the consultation process and the Court was not convinced that early consultation would have changed or alleviated the basic repugnance of Ngai Tumapuhiaarangi to the proposal. This led the Court to find:

“[83] . . . unless the Trust Partnership land is acquired by Ngai Tumapuhiaarangi (which seems unlikely) we do not see any solution in the hapu’s terms. To stop development on the site for spiritual and cultural reasons would disenfranchise the Glendon Trust Partnership from the use of its own land in terms of the various legal provisions available to it in an entirely legitimate manner.”

Having identified and listed a number of positive aspects of the subdivision proposal the Court concluded that whilst it had respect for the appellant’s concerns it could not find as a question of law that the development did not meet the purposes of sustainable management in s 5. It commented the provisions of ss 6, 7 and 8 only qualify the purpose of the Act and were not discrete ends in themselves.

Grounds Of Appeal

[12] Counsel have approached the issues of law arising in this appeal under three heads:

• Did the Court misinterpret its discretion?

• Did the Court misinterpret the various statutory planning documents, and in particular the Council’s District Plan?

• Was the purpose of the Resource Management Act achieved?

This appeal is confined to points of law in terms of s 299 of the Act. As Blanchard J observed in Stark v Waitakere City Council & Anor (Auckland Registry, HC5/94, 28 June 1994):

“. . . the role of this Court is not to delve into questions of planning and resource management policy. That is for the expert Tribunal to determine based on its knowledge gained from its day to day experience and its consideration of district and regional plans and submissions made to it in respect of them. Judges of this Court, whether sitting alone or as a Full Court, have no such expertise, nor have they the necessary background to be able comfortably to deal with issues of policy in an individual case. Much uncertainty and no doubt some anomalies would be created if this Court were to embark upon an investigation of the appropriateness of policies which have been endorsed or laid down by the Tribunal. The role of this Court is to see that the statute, the district plan and the regional plan have been correctly interpreted, i.e. that their language has been properly understood and applied, to ensure that all relevant, and no irrelevant, matters have been considered, that the decision of the Tribunal is properly based upon the evidence before it and that the decision reached is “reasonable” in the sense that it was one that could be arrived at by rational process in accordance with a proper interpretation of the law and upon the evidence. The weight to be attached to policy questions is for the Tribunal to determine”.

Did The Court Misinterpret Its Discretion?

[13] According to the appellant the Environment Court wrongly failed to treat the application for subdivision consent as a “wholly discretionary” activity. It is claimed that by approaching the matter on the basis that subdivision of the land down to 3 ha was a controlled activity which could be undertaken as of right, the Court had restricted its discretion thereby effectively disregarding the thrust of the appellant’s objection and limiting its assessment in terms of s 104 of the Act. Mr Woods submitted that the Court’s approach had effectively restricted the appellant’s legitimate right of objection.

[14] It has been settled by a line of decisions in this Court beginning with Aley v North Shore City Council [1998] 4 ELRNZ 227 that an unrestricted discretionary activity is wholly discretionary and that in exercising the discretion to grant or refuse consent and to impose conditions a consent authority is required to have regard to all relevant matters. The Environment Court approached the matter on the following basis:

“[41] The proposal is a discretionary activity and therefore the provisions of s104 of the Act apply. Subject to Part II, a consent authority considering an application for a resource consent under s 104 is to have regard to (inter alia) any actual and potential effects on the environment of allowing the activity, to relevant planning instruments and to any other matters the consent authority considers relevant and reasonably necessary to determine the application.”

Those comments indicate that the Court was well aware of the status of the proposed subdivision and also aware that it was required to assess the proposal in terms of all relevant s 104 considerations. Any such assessment was, of course, bound to reflect that technical aspects of the subdivision had not been challenged.

[15] Considerable emphasis was placed by the appellant on the Environment Court’s discussion in paragraphs [47] and [48] about activities that could be undertaken as of right. It was argued that the Court had misdirected itself by approaching the matter as though it was dealing with a restricted discretionary activity and that this had led it to take a blinkered approach to the s 104 assessment. I disagree. When testing the appellant’s case based on cultural and spiritual values the Court was perfectly entitled to take into account activities which could be undertaken as of right in terms of the District Plan. Indeed, having regard to the evidence before it the Court could scarcely have avoided addressing that issue. It does not follow, however, that by considering the activities that could be undertaken as of right, the Court thereby failed to properly apply s 104 or to approach the matter on a basis other than that the activity was wholly discretionary.

[16] Mr Woods argued that subdivision of the proposed site into allotments no smaller than 3 ha was not a controlled activity because the site was waahi tapu. His argument revolved around the heritage provisions in Chapter 12 of the District Plan. Before discussing those provisions it is helpful to briefly explain the relevant subdivision provisions appearing in the rural environment zone of the District Plan. Within that zone subdivision down to 3 ha is a controlled activity (subject to qualifications which are irrelevant in the present context): clause 2.7.7.1. Any subdivision not meeting the standards and terms for controlled activities and not referred to in Part B of the Plan, is a discretionary activity: clause 2.7.10(d). There is no suggestion that a subdivision of the site down to 3 ha would fail to meet the standards and terms for controlled activities. Thus on the face of the rural environment zone provisions, subdivision of the site down to 3 ha would be a controlled activity. However, Mr Woods claims that the heritage provisions in Part B (Chapter 12) render any subdivision of waahi tapu land a discretionary activity.

[17] Chapter 12 contains comprehensive provisions addressing the issue of recognising and protecting the important heritage resources within the district. It notes, inter alia, that s 6 of the Act requires provision to be made for the relationship of Maori and their culture or traditions with their ancestral lands, water, sites, waahi tapu and other taonga. Heritage resources addressed in that chapter include buildings, sites, objects, places and areas that are waahi tapu. The stated objective of the Heritage Chapter is:

“12.2.1 Recognition and protection of the values of heritage resources.”

That objective is supported by a number of policies:

“12.3.1 Identify the heritage resources of value by developing and maintaining a list of these resources in Appendix 12A of the Plan.

Explanation:

Those heritage resources of importance to the District are listed in Appendix 12A in the Plan. The list in Appendix 12A provides a means of highlighting those heritage resources which the community seeks to protect. Appendix 12A is a mechanism which signals different rules apply to heritage resources. As values change the list in Appendix 12A can be altered and added to.

12.3.2 To protect those heritage resources identified in Appendix 12 to the Plan by ensuring the values of the resource are not compromised.

Explanation:

Where the Plan identifies heritage resources in Appendix 12A, the Council will assess the effects of activities as part of a resource consent application in order to protect the significant values of the heritage resource. While activities are provided for the key aim is to conserve heritage resources. Consideration will be given to other means of protection including: voluntary protection, heritage protection orders and public acquisition.

12.3.3 Encourage an awareness of the need to protect heritage resources amongst the local community.

Explanation:

It is important that in developing private land, individuals consider the value of heritage resources and sites as a resource for the community. Voluntary means of protection will be encouraged. Increasing public awareness of potential additional heritage resources within the district which have not yet been evaluated is also important.

12.3.4 Identify and protect, in an appropriate way, heritage resources of importance to tangata whenua.

Explanation:

It may not be appropriate to publicly disclose the location of sites of importance to iwi. Protection of resources of importance to tangata whenua (for example, waahi tapu) is recognised as being important and consultation with tangata whenua will be undertaken to find the most appropriate means of protection. In addition consultation will be undertaken in respect of applications which may have heritage, cultural, or archaeological interest to tangata whenua.”

Methods used to implement the policies include the listing of significant heritage resources in Appendix 12A of the Plan: clause 12.4.1(c). Additional heritage resources which have been identified by the New Zealand Historic Places Trust as worthy of further evaluation are also noted in the Plan for information purposes: clause 12.4.1(d). With reference to clause 12.4.1 it is explained in the Plan that the list in Appendix 12A is to enable the public to identify the significant heritage resources being protected and where certain rules will apply. Chapter 12 then lists district rules which are to apply through all zones. Discretionary activities listed in Rule 12.6.5 include:

“(b) Any activity occurring in any defined area of significance to tangata whenua identified in Appendix 12A

(c) Any subdivision which contains any of the heritage resources listed in Appendix 12A.”

The site of the proposed subdivision has not been listed in Appendix 12A as a heritage resource. It appears, therefore, that contrary to Mr Woods’ submission subdivision of this site down to 3 ha would not be a discretionary activity in terms of the heritage provisions but would in fact remain a controlled activity in terms of the rural environment zone provisions.

[18] Mr Woods attempted to overcome this analysis by arguing that tangata whenua were not required to list their heritage sites because the explanation to policy 12.3.4 acknowledged that it may not be appropriate to publicly list the location of sites of importance to iwi. The logical extension of that argument is that if a site is considered by tangata whenua to be waahi tapu the Chapter 12 protection is automatically available whether or not the site has been identified by the Council. That cannot be right. I believe that Mr Woods’ submission confuses identification of a heritage resource with disclosure of the location, which is an entirely different matter. The acknowledgement in the explanation to policy 12.3.4 that it may not be appropriate to publicly disclose the location of sites of importance to iwi does not render identification of the site unnecessary. Indeed, policy 12.3.4 specifically talks about the need to identify and protect heritage resources of importance to tangata whenua. That means identification by the Council as part of the planning process. The Council is not entitled to abrogate that responsibility. Moreover, the plan is quite explicit when it provides in rule 12.6.5(c) that subdivisions containing any of the heritage resources listed in Appendix 12A are discretionary activities. The appellant’s subdivision does not fall into that category. Finally despite Mr Woods’ argument to the contrary, I am satisfied that the decision of this Court in TV3 Network Services Limited v Waikato District Council [1997] NZRMA 539 cannot assist his argument. On my reading it involved an entirely different issue and cannot assist in construing the heritage chapter of the Carterton District Plan. It follows that the Environment Court was correct when it approached the matter on the basis that the absence of this site from Appendix 12A was important.

[19] Counsel for the appellant also attacked the Environment Court decision on the basis that the Court had assessed effects arising from the proposed submission by reference to the wrong environment. His submission was:

“3.19 It is submitted that the Court compared the appellants objections to an environment as it would exist only if the land was to be used in a manner permitted as of right by the plan.

3.20 The Court should have assessed the effects, arising from the appellants submissions, in terms of s 104(1) (which includes the adverse effects raised by the appellants) of allowing the proposal on the environment as it currently exists or as it would exist if the land were used as of right by the plan.”

Mr Woods then developed his submission by reference to Bayley & Ors v Manakau City Council [1998] NZRMA 513 (CA) in which the Court of Appeal accepted that when considering effects on the environment of the activity for which consent is sought the comparison must be with the environment as it exists “or [my emphasis] as it would exist if the land were used in a manner permitted as of right by the Plan”. His point seems to be that use of the word “or” means that the comparison can be either with the existing environment or with the environment as it would exist if the land was used in a manner permitted as of right by the Plan. This led him to submit that the Environment Court had overlooked drawing a comparison with the environment as it currently exists.

[20] The point that Mr Woods seeks to raise has already been considered in Barrett v Wellington City Council [2000] NZRMA 481 at paragraph [31]. In that decision I said:

“As formulated by the Court of Appeal the baseline represents a combination, first, of what is being lawfully done on the site and, secondly, what could be done there as of right in terms of the Plan. I reject Mr Bennion’s submission that those two components can be regarded as true alternatives.”

That approach has since been accepted by Salmon J in Smith Chilcott Ltd v Martinez and Miguel [2000] NZRMA 108. I do not see any reason to depart from the approach expressed in Barrett and I cannot accept that there is any validity in the point raised by Mr Woods. In my view the Environment Court’s approach to the assessment of effects was sound.

[21] Given the conclusions already reached the appellant’s final point that the Court had effectively limited the appellant’s rights of objection is also bound to fail. I am satisfied that the Environment Court did not err in the exercise of its discretion in this case. It approached the matter on the basis that this was a “wholly” discretionary activity and in so doing gave proper consideration to s 104. This ground of appeal fails.

Did The Court Misinterpret The Statutory Planning Documents?

[22] It is claimed that the Court misinterpreted and misunderstood the objectives and policies of the various statutory planning documents and thereby misdirected itself when purporting to have regard to those objectives and policies in terms of s 104. Since four particular aspects were advanced by counsel for the appellant, it is convenient to deal with this ground of appeal by reference to each of those aspects.

[23] First, it is claimed that the Environment Court erred when it attributed importance to the fact that the site had not been identified in Appendix 12A. This comes back to Mr Woods’ submission that tangata whenua are not required to publicly identify their heritage sites and can gain full protection without the site being identified or listed in Appendix 12A. I have already rejected that submission. The Court was entitled to conclude that the fact that the site had not been listed was important.

[24] Secondly, in Mr Woods’ own words:

“4.36 The second error appears in paragraphs 48 and 83. Here the Court failed to appreciate that even if the site was to be developed as a controlled activity, that activity would still require a discretionary judgment as to its effects on the waahi tapu.”

This seems to be a contradiction in terms. If an activity is a controlled activity the consent authority must confine its assessment to the matters in respect of which it has reserved control in its Plan: see the definition of “controlled activity” in s 2 and s 76(3A). Carterton District Council confined the exercise of its discretion in relation to subdivisions within the rural environment zone which qualify as controlled activities to water supply, sewage disposal, building platform, access, lots off right of way and esplanade reserves or strips: clause 2.7.7.1. In other words, it effectively limited its discretion to technical aspects. Those aspects were not challenged by the appellant. Thus the Court could not have been in error in the manner alleged.

[25] Thirdly, it is claimed that the Court erred in its approach to the Chapter 12 objective of protecting heritage resources to the extent that the Court considered that protection was confined to means that were “appropriate”. Mr Woods argued that it was not enough for the Court to pay lip service to the concept of protection and that it had to go further and positively protect heritage resources. He claimed that the approach adopted by the Court effectively read down Part II of the Act and the statutory documents.

[26] To my mind those criticisms reflect an erroneous analysis of the District Plan and Environment Court decision. This was not a situation involving a heritage resource identified and listed in Appendix 12A. As the Environment Court recognised, this is important because Chapter 12 is structured around the identification of important heritage resources and their listing in the Appendix. It would have been quite wrong for the Environment Court to have adopted the approach that the absence of the site from Appendix 12A (and the absence of any indication that it had been identified by the Council as part of the planning process) was not a matter of moment. Such an approach would have been contrary to the structure of the District Plan. Apart from the fact that the site had not been formally identified and listed, it also needs to be kept in mind that policy 12.3.4 specifically adopts the approach that heritage resources of importance to tangata whenua will be protected “in an appropriate way”. Thus the Court was entitled to consider what was “appropriate” in this case. It can be inferred that the Environment Court contemplated three possibilities: upholding the appellant’s objection in its entirety and refusing the subdivision; allowing the subdivision to proceed in terms of the Council’s decision; or modifying the terms and conditions on which the subdivision would be allowed to proceed.

[27] It needs to be remembered that after initially opposing the subdivision, some Maori interests were prepared to support the third alternative. For example, while Mr Gemmell acknowledged the cultural, spiritual and historical issues surrounding the application, he was prepared to support the second respondent’s case before the Environment Court on the basis that those issues could be adequately resolved by inclusion of the following (from the draft consent memorandum) in the subdivision consent:

“. . .

(g) Council recognises that the site of the proposed subdivision is waahi tapu and is located on the ancestral lands of the descendants of Ngai Tumapuhiaarangi, Ngati Maahu and Ngati Te Kawekairangi hapu. Evidence was presented at the hearing by tangata whenua which indicates that the site is of particular cultural and spiritual importance to them because of whakapapa reasons, its importance as a traditional fishing ground (“He waahi a mahinga kai”), and as an historic pa site and as a site of both burials and births.

(h) Evidence presented at the hearing indicated that the hapu of Ngai Tumapuhiaarangi, Ngati Maahu and Ngati Te Kawekairangi are recognised as the appropriate tangata whenua for the area.

(i) Council considers that the relationship of Ngai Tumapuhiaarangi, Ngati Maahu and Ngati Te Kawekairangi with their ancestral lands, water, sites, waahi tapu and other taonga can be recognised and provided for by the imposition of conditions which:

• require the development and implementation of an archaeological site and waahi tapu management plan with the active involvement of tangata whenua

• require that an appropriately qualified person/archaeologist monitors all earthworks and reports to tangata whenua

• safeguard the balance of the site from development

• ensure the adverse effects of wastewater treatment and disposal are minor.

(k) The Council must have particular regard to kaitiakitanga under s. 7(a) of the RMA and acknowledge Ngai Tumapuhiaarangi, Ngati Maahu and Ngati Te Kawekairangi as the kaitiaki of the coastal environment in the area. Council notes from the evidence that tangata whenua access to the traditional fishing grounds at Flat Point will not be compromised by the subdivision and that any future concerns over depletion of the traditional fishing resource might be addressed by tangata whenua seeking to have the area designated as a mataatai fishing reserve under the customary fishing regulations as was suggested in evidence at the hearing.”

It could not be said that those concerned about spiritual and cultural values had come away empty handed. Even though the site had not been formally identified by the Council and was not listed in Appendix 12A it had gained formal recognition as a site of significance to the iwi in the area who had also been officially recognised as kaitiaki. Moreover, by virtue of the conditions included in the subdivision consent by the Environment Court the balance of the second respondent’s adjoining land was safeguarded from development. The Environment Court was certainly entitled to take the view that those steps were “appropriate”.

[28] The final challenge advanced by the appellant under this head arises from the Court’s comments in paragraph [50] that “protection” was not synonymous with “prohibition” of development, that “protection” could take many forms, and that in the circumstances of this case protective action could be considered appropriate if it was “realistic and achievable”. While Mr Woods was prepared to accept that the concept of protection did not mean absolute protection, he argued that it at least meant preserving the status quo which in this case required positive action. He submitted that rather than achieving those objectives the Court’s decision would lead to the desecration of a waahi tapu and that a decision authorising that outcome must be contrary to both the Resource Management Act and District Plan. Once again the appellant might have lost sight of the realities of the situation. The District Plan contemplates that heritage resources will be protected in an appropriate way. Under those circumstances it was open to the Environment Court to proceed on the basis that in this case a realistic and achievable solution would qualify as “appropriate”.

[29] In the end result I have not been persuaded that the Environment Court misunderstood the statutory planning documents. This ground of appeal must also fail.

Was The Purpose Of The Resource Management Act Achieved?

[30] It is claimed that having accepted that the site is waahi tapu and an important heritage resource, the Environment Court had a positive duty to satisfy itself that the purposes of the Act in relation to tangata whenua interests were met. The appellant submitted that the Court misapplied the statutory objectives and planning documents in relation to waahi tapu issues.

[31] This ground of appeal seems to come down to a proposition that if a site is waahi tapu and an important heritage resource then the Environment Court is under a duty to ensure that there is no further development of the site. I do not believe that that this rigid proposition accurately reflects the requirements of the Resource Management Act or the District Plan. This can be best demonstrated by reference to the Act and Plan.

[32] Clearly the Act is moulded around the “sustainable management” purpose described in s 5:

“Purpose-(1) The purpose of this Act is to promote the sustainable management of natural and physical resources.

(2) In this Act, “sustainable management” means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well being and for their health and safety while -

(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

(c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.”

It can be seen that the use and development of resources is contemplated so long as that use or development is consistent with the concept of sustainable management (or is otherwise permitted under the Act or legitimately permitted under the relevant Plan). When there is an issue about whether the use or development is compatible with sustainable management those required to exercise functions or powers under the Act have to evaluate all relevant matters and undertake the balancing exercise contemplated by subs (2). In situations involving Maori spiritual and cultural values ss 6, 7 and 8 will also come into play.

[33] Section 6 requires the decision maker to “recognise and provide for” specified matters of national importance. For present purposes that section relevantly provides:

“Matters of national importance- In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:

. . .

(e) The relationship of Maori and their culture and traditions with their ancestral lands, . . . sites, waahi tapu, and other taonga.”

As indicated by the Planning Tribunal in Haddon v Auckland Regional Council [1994] NZRMA 49 at p58, s 6 requires two steps: first, recognition of the relationship; and, secondly, provision for that relationship. Once the relationship of Maori with their ancestral lands or waahi tapu has been established and recognised the decisionmaker must then decide how to provide for the relationship. It follows that even if s 6 applies in a given situation, an application for resource consent is not necessarily doomed to failure. This can be illustrated by reference to Mahuta v Waikato Regional Council (EnvC A91/98, 29 July 1998) which has some parallels with the situation under consideration. The Environment Court was considering a discharge into the Waikato River from a dairy factory. Although it was satisfied that the discharge would have an adverse effect on the relationship of Maori with the river, the Court took into account that there would be no adverse physical effects on the river environment and that it was possible to formulate a consent that would recognise and provide for the relationship between Maori and the river.

[34] Section 7 imposes an obligation on the person exercising functions and powers under the Act to have “particular regard to”, inter alia, kaitiakitanga and the recognition and protection of the heritage value of sites, places or areas. This obligation was explained by Chambers J in Auckland Regional Council v Arrigato Investment Limited [2001] NZRMA 158 in this way at p167:

“It is necessary . . . to give genuine attention and thought to the statutory documents and, of course, to understand correctly that to which one is having regard.”

Once again it needs to be recognised that an application for consent to use or develop a resource is not automatically ruled out because one of the matters referred to in s 8 is brought into play.

[35] Finally, it is necessary to consider s 8 which provides:

“Treaty of Waitangi- In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).”

In Minhinnick v Watercare Services Limited [1997] NZRMA 553 at p571 Salmon J observed that this section was not intended to confer individuals with a right to veto a legitimate proposal, this observation having been noted by the Environment Court in the decision under appeal. I am afraid it is difficult to escape the conclusion that in this instance the appellant is pinning its hopes on an interpretation of ss 6, 7 and 8 that would confer a power of veto over an otherwise legitimate proposal. I do not believe that was the purpose of those sections, or of any of them.

[36] Now I turn to the District Plan. As I see it, the Plan cannot save the appellant’s argument. Under Chapter 12 the listing of heritage resources in Appendix 12A is the lynchpin and it is highly significant that the site under consideration has not been listed. Added to that, the District Plan contemplates that heritage resources of importance to tangata whenua will in any event be protected “in an appropriate way”. In other words, a judgment will have to be exercised. That type of judgment is vested in the Environment Court, not this Court.

[37] Before leaving this ground of appeal I should briefly comment, first, on the appellant’s argument that the Environment Court failed to correctly apply the statutory provisions and District Plan to the situation under consideration and, secondly, on the faint suggestion that the Court’s decision was not “reasonable” in the sense explained by Blanchard J in Stark v Waitakere City Council. I have no doubt that the decision passes scrutiny in all those respects. The Court expressly directed its attention to the relevant sections of the Act, namely, ss 5 - 8 inclusive. Having balanced the appellant’s spiritual and cultural concerns against positive aspects of the subdivision, the Court arrived at the conclusion that it could not find as a matter of law that the development failed to meet the sustainable management purpose of the Act. The Court’s modification of the Council’s decision in terms of the draft consent memorandum was fundamental to that outcome. I am satisfied that the Court was entitled to conclude that the waahi tapu status of the land had been recognised and provided for by that modification. It is also clear that in arriving at its decision the Court had particular regard to relevant matters arising under s 7 and took into account the principles of the Treaty of Waitangi as required by s 8.

[38] The purpose of the Resource Management Act was achieved. This final ground of appeal must also fail.

Outcome

[39] The appeal is dismissed. If the parties are unable to agree about costs they should submit memoranda to enable that issue to be determined by the Court.