Ngati Rangi Trust v Genesis Power Limited

[2007] NZCA 378

IN THE COURT OF APPEAL OF NEW ZEALAND

CA275/07
[2007] NZCA 378

BETWEENNGATI RANGI TRUST, TAMAHAKI INC SOCIETY AND WHANGANUI RIVER MAORI TRUST BOARD

Applicants

ANDGENESIS POWER LIMITED

First Respondent

ANDMANAWATU-WANGANUI REGIONAL COUNCIL

Second Respondent

Hearing:20 August 2007

Court:Hammond, Robertson and Ellen France JJ

Counsel:J P Ferguson for Applicants

P F Majurey and T L Hovell for Respondents

Judgment:30 August 2007 at 11 am

JUDGMENT OF THE COURT

A        The application for special leave to appeal is allowed, on these questions:

1.Was the High Court correct that there was an evidential onus on the applicants to demonstrate the appropriate measures to mitigate the adverse effects of the Tongariro Power Development on Maori interests?

2.Was the High Court correct that the Environment Court “meeting of the minds” construct was not directed to the statutory purpose of “sustainable management” under the RMA Act but instead was directed to providing the applicants with another or a different opportunity to express their concerns?

BThe applicants will have costs of $1,500 and usual disbursements.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1]       This is an application for special leave to appeal to this Court against the decision of Wild J in Genesis Power Ltd v Manawatu-Wanganui Regional Council & Ors (29 August 2006, now reported at [2006] NZRMA 536 (HC)).

[2]       The application is made under s 308 of the Resource Management Act 1991 (the RMA Act) which, by express reference, incorporates s 144(3) of the Summary Proceedings Act 1957, relating to second appeals. 

Background

[3]       It is sufficient for present purposes to set out the headnote to the report of the High Court decision in the NZRMA (with legal authorities and paragraph references omitted):

The Tongariro power development scheme (the TPD) was a hydro power station of considerable national importance, meeting approximately 3.5 per cent of New Zealand’s annual energy demand. The government first granted approval to the TPD in 1964 and it had been in operation since 1971. Following the promulgation of the Resource Management Act in 1991 (the Act), the owner and operator of the TPD, Genesis Power Ltd, began consultation with Maori (the Maori respondents) in relation to the water resource utilised. In 2001, the Waikato and Manuwata-Wanganui Regional Councils granted further resource consents in relation to the TPD for a period of 35 years. The matter was appealed to the Environment Court. The Environment Court found that the TPD adversely affected the cultural and spiritual values of Maori, and considered how best to balance the national interests with those of Maori. Genesis proposed a raft of additional conditions that also purported to address any potential effect of the resource consents on Treaty of Waitangi settlement claims. The Environment Court rejected this approach on the basis that the conditions proposed might not accurately mitigate the specific concerns of the Maori respondents and that the review process might prove inadequate to rectify any deficiencies. As an alternative, the Environment Court granted the consents for a reduced term of ten years on the basis that this period would allow the parties to work towards a “meeting of the minds”, to identify specific Maori values that were being transgressed and then, through an application of technical methods, formulate appropriate mitigation measures.

Held (allowing the appeal and remitting the matter back to the Environment Court)

1 This was not a case where information about the adverse effects of the activity was incomplete. The Maori respondents had had in excess of 12 years to consider the effects of the activity on their spiritual and cultural values and to propose appropriate mitigation measures.

2 Given the history of the matter and the failure of the consultation process to date, there was no rational basis for concluding that a further ten years would secure a “meeting of the minds”.

3 The Maori respondents had failed to adduce evidence as to the mitigation measures they considered were necessary. The “meeting of the minds” construct was an attempt by the Environment Court to repair the Maori respondents’ failure to make out their case and thus involved an error of law. The Environment Court should decide the matter on the evidence that the parties had placed before it and should not abdicate its decision-making responsibility.

4 To allow the Environment Court’s decision to stand would create a dangerous precedent of discouraging participation in the resource management process. Opponents to applications might refuse to participate in the hope that this inaction would undermine the application. This is antithetical to the Act.

5 On the facts of the case, the process to review the resource consents as suggested by Genesis would address Maori concerns in relation to the impact of the resource consents on any settlement resulting from the Treaty of Waitangi Act 1975. The Environment Court had taken an unduly narrow and restrictive view of the ambit of the powers given by the consent conditions review process.

The application for leave in the High Court

[4]       All too often, applications for leave do not raise specified questions of law.  In this instance the difficulty was at the other extreme: when the application for leave was made to Wild J in the High Court three pages of questions (some of a “micro” variety) were suggested for consideration by this Court.  That created difficulties for the High Court, and failed to address the “heart” of whatever it was the applicants were wishing to advance to this Court. 

[5]       Second appeals are not general appeals, let alone “reviews”.  Second appeals, even on questions of law, are not permitted as of right.  

[6]       Faced with a plethora of suggested questions on the leave application, Wild J endeavoured to reduce them to their essentials (HC WN CIV 2004-485-1139 22 May 2007).  He considered that there were essentially two issues before him (see at [10]).  First, there was what the Judge called the “evidentiary onus”.  That is, did the applicants fail to discharge an evidentiary onus resting on them?  As the Judge said, subsumed in that was whether the Environment Court had sought to avoid or bypass what the Judge described as “the fact” that the applicants had failed to discharge an evidentiary onus resting on them.  Secondly, the Judge held that the Environment Court took an unduly narrow and restrictive view of the ambit of the powers given by the consent conditions review process.

[7]       The Judge held that these two “issues” (which is the term we use, for in fairness there are various aspects to them) do not raise questions of law which are suitable or appropriate for determination in this Court.  Neither, in the Judge’s view, do they have any application beyond what the Judge termed “the specifics” of this case (at [34]).  So the Judge refused leave both on the basis of the questions sought to be raised; and their possible wider implications.

Leave is granted

[8]       We differ from Wild J.  We are persuaded that there are two questions of law of distinct public importance which are suitable for consideration in this Court.  We think it best to settle these two questions relatively broadly.  They raise important questions as to how environmental cases of this kind are to be approached under the RMA Act.

[9]       We therefore reframe the questions in the application thus:

1.Was the High Court correct that there was an evidential onus on the applicants to demonstrate the appropriate measures to mitigate the adverse effects of the Tongariro Power Development on Maori interests?

2.Was the High Court correct that the Environment Court “meeting of the minds” construct was not directed to the statutory purpose of “sustainable management” under the RMA Act, but instead was directed to providing the applicants with another or a different opportunity to express their concerns?

Conclusion

[10]     Leave is granted to appeal on these two questions.  Leave is not granted on the other questions raised.

[11]     The applicants will have costs of $1,500 and usual disbursements on this application.

Solicitors:
Kahui Legal, Wellington for Applicants
Russell McVeagh for First Respondent