Pirirakau Incorporated Society v Bay of Council Regional Council
[2014] NZHC 2544
•16 October 2014
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2013-470-000612 [2014] NZHC 2544
UNDER the Resource Management Act 1991 IN THE MATTER
of an appeal from a decision of the
Environment Court pursuant to section
299 of the ActBETWEEN
PIRIRAKAU INCORPORATED SOCIETY
Appellant
AND
BAY OF PLENTY REGIONAL COUNCIL
First Respondent
D155 LIMITED Second Respondent
Hearing: 28 August 2014 Appearances:
J P Koning for Appellant
P H Cooney for the First Respondent
K M Barry-Piceno for the Second RespondentJudgment:
16 October 2014
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Thursday, 16 October 2014 at 1.00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Koning Webster, Papamoa
Cooney Lees Morgan, Tauranga
K Barry-Piceno, Barrister, Tauranga
PIRIRAKAU INCORPORATED SOCIETY v BAY OF PLENTY REGIONAL COUNCIL [2014] NZHC 2544 [16 October 2014]
Introduction
[1] On 13 November 2013 the Environment Court granted resource consent to the respondent, D155 Limited (D155), to carry out earthworks and other activities on land it owns in Tauranga.1 The Court held that it would be unreasonable to decline the consent given the wide extent of protection that the appellant, Pirirakau Incorporated Society (Pirirakau), sought for the land and for the surrounding area, known to Pirirakau as Tahataharoa.
[2] Pirirakau appeals that decision on five questions of law. Its central claim is that the Court erred in its assessment of the evidence provided by its witness, Mr Shadrach Rolleston. The Court concluded from that evidence that Pirirakau had changed its position from an earlier hearing on the likelihood of an ancestor being buried on site and their belief that the land and the wider area is waahi tapu. But for this change of position, the Court would have declined the consent. Pirirakau claims there was no change and those conclusions were not reasonably available to the Court on the facts.
[3] D155 opposes the appeal and has filed submissions to that effect. The first respondent, the Bay of Plenty Regional Council (Council), supports the appeal and has also filed submissions in addition to those filed by Pirirakau.
Background
[4] The land in question is a low lying 42 ha coastal site on Lochhead Road, Te Puna (the Heybridge site). The site abuts Tauranga harbour and is located on former wetland on the west bank of the Wairoa River mouth.
[5] D155 purchased the land from LDL Limited, the successor to Heybridge Developments Limited (Heybridge), on 1 June 2012. It proposes a four lot rural/residential subdivision. Because of the low lying nature of the site, a significant amount of fill (approximately 144,000 m3) is required to construct both
the proposed 920 m extension to Lochhead Road and to create a platform for the
1 Heybridge Developments Ltd v Bay of Plenty Regional Council [2013] NZEnvC 269, [2014] NZRMA 164 [2013 EC decision].
building sites. The proposed source of that fill is a 3.5 ha borrow pit in the middle of the site dug to a depth of 3 metres.
[6] The four marae of Pirirakau, a hapu of Ngati Ranginui, strongly oppose the development on the site due to the deep cultural and spiritual connection they have with the area. Pirirakau claims a mana whenua interest in the region between the Wairoa River and the Waipapa River and from Tauranga Harbour to the top of the Kaimai Ranges. Within that rohe they claim a predominant interest in an area known to them as Tahataharoa. The exact contours of Tahataharoa are unknown, but roughly speaking the area extends 90-150 ha from Oikimoke to the north of the
estuarine headland of the Wairoa River to Pukewhanake in the south.2 The
Heybridge site sits directly within Tahataharoa.
[7] Tahataharoa is important to Pirirakau for two main reasons. First, it is ancestral land used for generations by their ancestors. It was not sold to the settlers, nor did Pirirakau sign the Treaty of Waitangi; rather, the land was forcibly confiscated from them in 1864 after the battles of Te Ranga and Gate Pa. The coastal margins and the fringes of the Heybridge site were used for cultural purposes such as food gathering and camp sites.3 Food gathering did not occur on the actual site for the second reason, namely that according to oral tradition Pirirakau’s revered founding ancestor Tutereinga, the son of Ranginui, is buried in the area, and for that reason the area is said to be waahi tapu.4 That belief stems from the ohaaki (dying wish) of Tutereinga:
Tanumia ahau i Tahataharoa kia rongo ai ahau kit te tangi o te tai
Bury me at Tahataharoa that I might hear the murmur of the sea.
[8] While they believe that Tutereinga was buried in Tahataharoa, as befits someone of his rank and status the exact urupa (burial site) of Tutereinga in the area
2 Heybridge Developments Limited v Western Bay of Plenty District Council [2010] NZEnvC 195 [2010 EC decision] at [51].
3 2013 EC decision at [11].
4 2010 EC decision at [81].
is unknown. Apart from the ohaaki there is other probative evidence that suggests
Tutereinga is buried at Tahataharoa and in the vicinity of the Heybridge site.5
[9] Pirirakau believe that as the descendants of Tutereinga and kaitiaki of the area, they are duty bound to ensure that Tutereinga’s burial ground is left untouched, and any desecration to Tutereinga’s remains will have significant consequences because it would amount to desecration of the mauri (life force) of the hapu.6 If they fail to protect the remains they will cease to exist as a collective group. For those reasons Pirirakau opposes development on the site, and in particular is opposed to
the planned 3.5 ha borrow pit due to the risk that Tutereinga’s remains would be
disturbed.
[10] There is a lengthy history to D155’s application for and Pirirakau’s opposition against development on the site, including three Environment Court decisions (2002, 2010, and the 2013 decision currently under appeal) as well as a prior appeal decision of the High Court (2011).7 I will briefly summarise those applications and decisions as is necessary for the purposes of this appeal.
[11] The first application was made by Heybridge in 1999 in which it applied for consent from the Western Bay of Plenty District Council to subdivide the site into 13 lots. The consent was successfully opposed by Pirirakau. Heybridge appealed unsuccessfully to the Environment Court in 2002.
[12] The primary issue on appeal in 2002 was whether the Heybridge site was waahi tapu for the purposes of s 6(e) of the Resource Management Act 1991 (RMA). In an interim decision released 21 November 2002 the Court dismissed the appeal. The Court was unable to find the entirety of the Heybridge site to be waahi tapu, having regard to the doubts raised in evidence as to the burial site of Tutereinga, and did not make a definitive finding on the matter. However, the Court found the site
was nevertheless ancestral land:
5 2013 EC decision at [20].
6 2010 EC decision at [87].
7 Heybridge Developments Limited v Western Bay of Plenty District Council EC Tauranga A231/2002, 21 November 2002 [2002 EC decision]; 2010 EC decision; Heybridge Developments Limited v Western Bay of Plenty District Council [2012] NZRMA 123, (2011) 16
ELRNZ 593 (HC) [2011 HC decision]; and the 2013 EC decision.
[59] In the end, we find ourselves unable to make a definitive finding on the waahi tapu issue, given the conflicting views in evidence. Bearing in mind that the exact burial place of Tutereinga is unknown, coupled with the conflicting views over the location and extent of Tahataharoa, we decline to hold that the whole subject land is waahi tapu. Furthermore, we are unable to determine satisfactorily what lesser area within or in the vicinity of the subject land is so classifiable.
[60] Notwithstanding the foregoing, the subject land is without doubt ancestral land, formerly used and occupied by many generations of forebears preceding present day members of Pirirakau. On the strength of the case presented for Pirirakau in relation to the river and its estuary, the headland area, the Hakao Stream, and the harbour, we find that due recognition and provision needs to be afforded to Pirirakau’s position and interest in the context of s 6(e) of the Act. In other words, the subsection is applicable as a matter of national importance, given the land’s status as ancestral land of notable association and value traditionally to Pirirakau, irrespective of the doubts surrounding Tutereinga’s resting place, the location and extent of Tahataharoa, and the allied issue of waahi tapu. …
[13] In 2007 the Western Bay of Plenty District Council granted Heybridge a new modified four-lot subdivision consent, subject to a grant of resource consent by an independent Commissioner acting under delegated authority from the Environment Bay of Plenty Hearings Committee. Consent was required because the proposed earthworks as originally planned were a discretionary activity under r 1C of the Bay of Plenty Regional Water and Land Plan, thereby engaging s 104 and Part 2 of the RMA.
[14] In February 2009 the Commissioner declined six of the consents sought due to the significant adverse effect of the development upon the cultural and spiritual values of Pirirakau and their relationship with the subject site. Heybridge appealed that decision to the Environment Court. The Court heard five days of evidence in October 2009 (2009 hearing) and dismissed the appeal on 10 June 2010 (2010 decision). It held that Pirirakau’s relationship with the site is strong, genuine and heartfelt, and sufficient to establish a relationship within the meaning of s 6(e) of the
RMA.8 It also accepted Pirirakau’s belief that serious cultural consequences would
follow if the remains were disturbed during development of the site.9 The potential for disturbance was considered of itself an affront to the kaitiaki of the site.10
8 2010 EC decision at [125]-[126].
9 At [86] and [126].
[15] While there was no doubt that the actual burial site of Tutereinga would be waahi tapu, the Court considered in line with its 2002 interim decision that there was not enough evidence to find that the burial site was or was not on the Heybridge site.11 What was left was Pirirakau’s honestly held belief that Tutereinga’s burial is or may be within the application site. That belief was not unlikely, implausible, or inconsistent with evidence the Court heard.12
[16] Having regard to ss 5, 6(e), 7(a) and 8 of the RMA the Court concluded with the following:
[129] We agree with [the Council] that we could not recognise and provide for Pirirakau’s relationship with their ancestral land and their culture and traditions if the appeal was granted by way of conditions attached to the consent, given that the consequence would be, according to Pirirakau, that the mauri of their hapu, and their rangatiratanga and mana whenua lost.
[17] In this respect, while the Court found the site to be ancestral land, it did not provide or provide exclusively for Pirirakau’s relationship with the site in its capacity as ancestral land.13 Rather, the Court made its decision on the need to recognise and provide for the relationship based on Pirirakau’s belief that waahi tapu (being Tutereinga’s urupa) was or may be on site.14 Accordingly, the proposal failed to achieve the imperative of sustainable management as it could not avoid remedy or mitigate the identified adverse effects to Pirirakau.15
[18] Heybridge appealed that decision to the High Court on a number of questions of law.16 Among others the primary contention was that the Environment Court erred in placing the onus on Heybridge to prove that Tutereinga’s burial place was not on site. On 19 August 2011 Peters J allowed the appeal in part. She found that a party who asserts a fact bears the evidential onus of the fact, and accordingly the Court had erred in placing the onus on Heybridge to disprove Pirirakau’s belief.17
Although not a material issue, she also found that it was not open to the Court to find
11 At [83].
12 At [83].
13 2011 HC decision at [56].
14 2010 EC decision at [126].
15 At [130].
16 2011 HC decision.
on the evidence that Heybridge had advanced its subdivision application on the basis that it would import fill to the site.18
[19] In declining the Society’s subsequent application for leave to appeal to the Court of Appeal, Peters J clarified her position, stating that she did not determine the question of whether the relationship between Pirirakau and their culture and traditions with Tahataharoa could be established by reason of a belief for the purposes of s 6(e) RMA.19 Rather that was a point for the Environment Court to address. Peters J remitted the case for the Environment Court for reconsideration in light of the decision.
[20] The Environment Court reheard the matter on 22 April 2013. No new evidence was heard except that provided by Mr S Rolleston for Pirirakau, who was briefed to update the Court on Pirirakau’s treaty settlement claim as hapu for Ngati Ranginui. The primary issue was whether and if so how the relationship of Pirirakau and its culture and traditions with the site, stemming from its historical association with the area, including its belief that Tutereinga might be buried on the site, should
be recognised and provided for.20
[21] In a majority verdict issued on 13 November 2013 the Court granted resource consent.21 The Court found that Pirirakau’s honest belief based upon their oral traditions of Tutereinga, including the ohaaki, was sufficient probative evidence to establish a relationship within the terms of s 6(e) RMA. Pirirakau had established that Tahataharoa, including the Heybridge site, was ancestral land and therefore s
6(e) applied.22 However, the likelihood that Tutereinga was buried on site and the
alleged status of the site and Tahataharoa as waahi tapu remained an issue of contention. The Court considered the result would have been straightforward but for the evidence of Mr S Rolleston, provided orally to the Court in response to questions
put to him at the hearing:
18 At [62].
19 Pirirakau Incorporated Society v Heybridge Developments Limited HC Tauranga CIV-2010-
470-585, 22 December 2011 at [20].
20 2013 EC decision at [9].
21 Environment Commissioner McConarchy considered that the outcome of the Court’s initial decision in 2010 should stand (at [31]).
… Without that evidence, we would have found that our previous decision to
decline the resource consents should be upheld.
[24] However, and despite his previous equivocal answers to questions from this Court as recorded above, Mr Shadrach Rolleston for the first time stated definitively that his people believe that the entire area of Tahataharoa is waahi tapu and that they want restrictions on development, beyond and not limited to the Heybridge-LDL site. To them the entire area must be protected given its associations with their hapu and Tutereinga. …
…
Thus due to the clarity now surrounding the position of Pirirakau, and after reconsidering the evidence, we must reconsider what is necessary to provide for their relationship with the Heybridge-LDL site.
[25] To take such a determined stand over the entire area from Pukewhanake (in the south) to Oikimoke (in the north), potentially a distance of some kilometres, or even the lesser but still extensive area from and including the Heybridge land to Pukewhanake, raises questions as to the degree of likelihood of the burial place being on the Heybridge site. While there was some suggestion from a number of witnesses that Tutereinga could be anywhere within the Tahataharoa area, the focused opposition to the Heybridge developments and the evidence we heard or received in 2009 and recited above, narrowed that zone considerably to the vicinity of the Heybridge – LDL site. That led to the finding made by the Court in the second bullet point of paragraph [88] of our previous decision.
[26] The effect with which the Court was dealing was the desecration to Pirirakau’s cultural and spiritual values and the impact on their relationship with their ancestral lands (specifically the Heybridge-LDL site) which would be occasioned should the burial site be disturbed. Such disturbance was a reasonable possibility in light of the findings which we had made and in that case avoidance of the risk by declining consent was an appropriate finding.
[27] However, in light of the evidence now given on behalf of Pirirakau it must be said that the degree of that possibility is considerably less than we were initially led to believe. While we accept that the possibility of disturbance remains to some degree it is no greater a possibility than applies to any other land at Tahataharoa. While we accept that disturbance of Tutuereinga’s remains would constitute an effect of high impact to Pirirakau should it occur, the degree of possibility (or probability) of that occurring must now be assessed as being sufficiently low that avoidance of the risk by declining consent is not the only outcome which the Court must consider.
[22] In the Court’s opinion, given the wide extent of protection for Tahataharoa
sought by Pirirakau, it considered it unreasonable to decline the consent.23
Accordingly, it issued consent for development on the site subject to appropriate conditions that may provide for the s 6(e) relationship, culture, and traditions of Pirirakau, as to be discussed between the parties.
Approach to appeal
[23] Section 299 of the RMA provides that a party may appeal against a decision of the Environment Court to the High Court on questions of law. An error of law occurs if the Environment Court:24
(a) applied a wrong legal test; or
(b)came to a conclusion without evidence, or one to which, on evidence, it could not reasonably have come; or
(c) took into account matters which should not have been taken into account; or
(d)failed to take into account matters which should have been taken into account.
Any identified error of law must materially affect the result of the Court’s decision before this Court should grant relief.25 On appeal this Court is not to revisit the merits of the case under the guise of a question of law.26
Alleged errors of law
[24] The Society claims the Environment Court made five errors of law, namely:
(a) its erroneous assessment of the evidence presented by the appellant on the relationship between Pirirakau and its ancestral land known as Tahataharoa;
(b)the undue weight it gave to the evidence of Mr S Rolleston given at the second [2013] hearing;
24 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at
153.
25 Ibid.
26 Nicholls v Papakura District Council [1998] NZRMA 233 (HC) at 235.
(c) the insufficient weight it gave to the evidence of the other Pirirakau witnesses given at the first [2009] hearing;
(d)in making adverse findings from the evidence of Shadrach Rolleston given at the second hearing which were not reasonably open to it; and
(e) in making adverse findings contrary to the overwhelming weight of evidence given by the Pirirakau witnesses at the first hearing.
Although pleaded separately, these questions of law run together. The claim is that undue weight was placed on certain statements of Mr S Rolleston at the 2013 hearing, the result of which was to lead the Environment Court to conclude Pirirakau had changed its stance as to the status of Tahataharoa, when in fact, seen in the context of the evidence provided at the 2009 hearing, Pirirakau had always considered Tahataharoa to be waahi tapu and was staunchly opposed to development in the area, including but not limited to the subject site. The key issue for determination in this proceeding is therefore whether Pirirakau did in fact change its position in the manner described by the Environment Court.
Summary of submissions
[25] The pivotal issue, in the Council’s submission, is whether Pirirakau did in
fact change its position between the first hearing in 2009 and the second hearing in
2013 as to the likelihood of Tutereinga being buried on the Heybridge site and their belief as to the status of Tahataharoa as waahi tapu. Counsel submits that if Pirirakau through Mr S Rolleston did not change its position, then the Court came to a conclusion it could not reasonably have reached on the facts.
[26] The Council submits that Pirirakau did not change its position on Tahataharoa. They have always made it known they oppose development anywhere in Tahataharoa on the basis of the belief that their founding ancestor could be buried anywhere in that area and the Court was clearly made aware of their stance at the
2009 hearing. All the oral evidence of Mr S Rolleston did was to confirm the evidence that the Court heard and accepted at the 2009 hearing. As such it is said the Court was wrong to conclude that for the first time Pirirakau had definitely stated
that they believe the entirety of Tahataharoa is waahi tapu, when in fact Pirirakau had always made clear their position as to the importance of Tahataharoa and their belief that Tutereinga was buried somewhere in the area.
[27] If it is accepted that the evidence for Pirirakau did not change, Pirirakau submits that the Court erred in coming to a different conclusion on how to provide for Pirirakau’s relationship with the Heybridge site on the same evidence. The Court stated that “but for” Mr S Rolleston’s evidence, interpreted as evincing a change, it would have come to the same conclusion as the 2010 decision and refused consent. Since nothing in fact changed between the 2009 and 2013 hearings, it is submitted the Court erred in reaching a different conclusion on the evidence it had.
[28] In addition to that primary issue it is submitted that the Court:
(a) became distracted by the extent of Tahataharoa, when it was required to assess the merits of the particular application for development on the Heybridge site, rather than concerning itself with any potential future applications (and Pirirakau’s possible position on any future unknown applications). That constituted an irrelevant consideration for the Court and the Court erred in that regard;
(b)erred in reconsidering the effects of the development and their probability/likelihood of manifestation, when the High Court had directed it to reconsider whether a s 6(e) RMA relationship existed in light of its ruling on the burden and standard of proof to apply in establishing that relationship; and
(c) should have exercised caution in introducing a new probability/likelihood test for cultural effects, which the High Court did not direct the Environment Court to use.
[29] In response D155 submits that there was a change in the position of Pirirakau between the 2009 and 2013 hearings, and largely adopts the reasoning of the Environment Court. It is submitted that Pirirakau originally said at the 2009 hearing
that there was a very real possibility of an adverse effect on them, by virtue of its assertion of fact that Tutereinga’s remains were likely to be disturbed if earthworks were undertaken on the Heybridge site. To the contrary at the 2013 hearing Pirirakau claimed that Tutereinga’s remains could be equally likely buried elsewhere in Tahataharoa, and they may or may not be located at the Heybridge site. The change, therefore, was as to the likelihood of disturbance of Tutereinga’s remains.
[30] It is submitted that given that change in position and the lack of probative evidence of fact put forward by Pirirakau, it was open to the Court in 2013 to undertake a fresh reassessment of the evidence. Having regard to all the evidence, the Court considered that the likelihood of disturbance was considerably less because of the low probability Tutereinga was buried on the Heybridge site in the vicinity of the proposed borrow pit.
Did Pirirakau change its position on Tahataharoa?
[31] There are a number of overlapping components that together inform Pirirakau’s position in respect to the Heybridge site and Tahataharoa generally. These can be summarised as:
(a) the perceived status of Tahataharoa as waahi tapu;
(b)the location of Tutereinga’s urupa in Tahataharoa, and the likelihood he is buried at the Heybridge site; and
(c) the location and size of Tahataharoa in relation to the Heybridge site. I will address each of these components in turn.
[32] As to the status of Tahataharoa as waahi tapu, counsel for the Council submits the Court cherry-picked passages from Mr S Rolleston’s oral evidence at the
2013 hearing to support the conclusion that there had been a change in Pirirakau’s stance, and that a broader reading of his evidence shows there to be consistency in approach between his evidence and that presented at the 2009 hearing.
[33] I agree with that submission. At paragraph 4 of Mr S Rolleston’s brief of
evidence for the 2013 hearing he stated:
I confirm that the position of Pirirakau on the status of Tahataharoa as a wahi tapu has not changed since the last hearing. I would add that such is the significance of Tahataharoa to Pirirakau that our position will never change.
[34] That approach is consistent with Mr S Rolleston’s statement in his brief of
evidence provided for the 2009 hearing:
34. Pirirakau have always maintained and will continue to maintain that Tahataharoa is a waahi tapu. The status of waahi tapu is confirmed by the burial of Tutereinga at Tahataharoa.
[35] There are a number of other statements by Pirirakau witnesses at the 2009 hearing that suggest Pirirakau’s position was that Tahataharoa was of utmost importance and considered to be waahi tapu. That is consistent with the position of Mr P Rolleston in February 2002 in support of Pirirakau’s opposition to the original
proposal put forward by Heybridge:27
3. The subject of this appeal concerns a proposal by the appellant to develop a rural residential site at Te Puna, Tauranga. The site of the proposed development is known as Tahataharoa. This site is of significant importance to the Pirirakau hapu as it is the burial place of our eponymous ancestor Tutereinga. As such Tahtaharoa is sacred to us. The hapu is of a view that any development on that site would desecrate not only our traditional, cultural, and spiritual values but would go to the heart of our identity.
[36] At the 2002 hearing the Environment Court stated that because of the lack of knowledge as to Tutereinga’s actual burial site, Pirirakau’s witnesses took a broad view to waahi tapu, based on the understanding that Tutereinga’s burial was within Tahataharoa and that Tahataharoa embraces the Heybridge site.28
[37] The Environment Court was clearly aware that Pirirakau considered the entirety of Tahataharoa to be waahi tapu and would staunchly oppose development in Tahataharoa for that reason. At [64] of its 2010 decision the Court refers to that
possibility being canvassed in argument by counsel for Heybridge:
27 Affidavit of Peter Rolleston, 22 February 2002.
28 2002 EC decision at [57].
[64] Ms Barry-Piceno argued that Pirirakau witnesses were elevating the importance of Tahataharoa to one of a blanket waahi tapu or similar constraint, so as to prevent earthworks for the entire area. She noted that the land identified by the Pirirakau witnesses as Tahataharoa runs from Raropua to Pukewhanake covering an area of approximately 90-150 hectares. Tahataharoa therefore covers a very large area that has been significantly modified and changed in physical form in the last 600 years.
[38] Counsel for the Council also refer to a line of questioning directed at Mr Koning, the counsel for Pirirakau, at the 2009 hearing, the material parts of which are quoted below:
HIS HONOUR: I think one of the sources of confusion that has occurred in this case, Mr Koning, is a certain interchangeability between the description of Tahataharoa and then a narrowing down of that same description. That is how I seem to read your submissions. When you are talking about Tahataharoa in connection with the matters we are discussing, you are really meaning Te Tawa, is that right? You are referring to the Heybridge site?
MR KONING: Yes.
HIS HONOUR: So the –
MR KONING: Not solely the Heybridge site for Pirirakau and I think the witness will confirm that – Tahataharoa extends beyond the Heybridge site.
HIS HONOUR: I understand that perfectly but it seems to me that you have used them interchangeably in your submission, there are times when you are clearly referring specifically to the Heybridge site when you have used the term Tahataharoa.
MR KONING: Yes, I accept that, sir, that in my submissions –
HIS HONOUR: We understand that it is considerably wider than that.
MR KONING: Yes, in my submission, sir, I accept that it is a little interchangeable but in terms of this particular appeal, the position of Pirirakau is that the Heybridge land forms part of Tahataharoa.
HIS HONOUR: Yes, I understand that. Is it only this particular part of Tahataharoa where Pirirakau would seek to ensure there is no development of the nature we are talking about or is it wider than that?
MR KONING: I think the witnesses will say that it is wider than that, sir. But because of the ohaaki which says that Tutereinga was buried within the murmur of the sea this is –
HIS HONOUR: Presumably that could cover a wide range of sites within
Tahataharoa within the sound of the sea.
MR KONING: But it may be that those questions are best answered by the witnesses.
[39] Although there remain issues with what Mr P and S Rolleston meant by
‘Tahataharoa’ in terms of its location, extent, and its relationship with the Heybridge site, having regard to the other affidavit evidence available on file I conclude that Pirirakau as a collective had always considered Tahataharoa to be waahi tapu, and would oppose development in that wider area accordingly. The Environment Court knew that this was Pirirakau’s position. Understandably at the 2009 hearing Pirirakau’s focus was on the Heybridge site but it is clear they have consistently considered the entirety of Tahataharoa to be of the greatest importance due to its status as ancestral land and their belief that Tutereinga is buried somewhere in the area.
[40] Accordingly I am satisfied the Court erred at [24] of its judgment in finding that for the first time Mr S Rolleston had made clear that Pirirakau believed the entire area of Tahataharoa is waahi tapu and that they want restrictions on development, beyond and not limited to the Heybridge site.
[41] If anything changed between the 2009 and 2013 hearings it was the assessed size of Tahataharoa in respect to the Heybridge site, the assessed importance of that for determining the likelihood of Tutereinga’s remains being in the vicinity of the Heybridge site and the consequent likelihood of disturbance of Tutereinga’s remains if the development went ahead.
[42] Pirirakau’s position had always been that while they were not entirely sure, they believed Tutereinga was buried at Tahataharoa, and the Heybridge site formed part of Tahataharoa. The Environment Court’s interpretation of the 2009 evidence in its 2013 decision was that Pirirakau believed it was likely that Tutereinga was buried
on the Heybridge site.29 A number of witness statements were cited. An example is
the following statement from Mr S Rolleston in his brief of evidence provided at the
2009 hearing:30
The establishment of a hapu reserve or other hapu facilities does not address the fundamental fact that our Tupuna is still buried on the site, and that any proposed development will most likely disturb his resting place. Tutereinga was interned there under his wishes as noted by Mr Kuka …
29 2013 EC decision at [14].
30 2013 EC decision at [14](3) (italics and underline included).
As indicated by previous submitters our challenge and opposition to the proposed development is based entirely on our history and traditions with Tahataharoa, and nothing else. ... It is the resting place of our eponymous ancestor Tutereinga. Nothing can and will diminish the fact that he rests on that site.
[43] From the evidence of Mr S Rolleston, the Court considered Pirirakau now claimed Tutereinga could be buried anywhere in Tahataharoa. The following is an extract from the 2013 hearing question trail cited at [24] of the judgment:
…
QUESTIONS FROM THE COURT: JUDGE FOX
Q. And just to be clear, and I'm sure you said it in the last hearing, your people's view is that Tutereinga could be anywhere along Tahataharoa?
A. Well according to the Ohaaki he was laid to rest at Tahataharoa.
Q. Yes we know that.
A. And we have no evidence of where exactly on that site he is buried.
…
QUESTIONS FROM THE COURT CONTINUES: JUDGE FOX
Q. Yes I thought you were far more specific in the last hearing about it being
located at this spot because you denounced Mr Mikaere’s evidence as being unlikely
because of the situation of that location –A. Yeah.
Q. relative to the view of Mauao? A. Yeah.
Q. And here then you indicated as far as I can remember, I’ll have to go back to the
transcript that the Ohaaki would pinpoint this, the burial site, the possible site, or probable depending on your point of view in and around or approximately at this
location?
A. Um, I think when we, when we talked about Tahataharoa we said it extended from the Heybridge site through to the base of Pukewhanake, somewhere in that vicinity. I can’t definitively say that, and none of our people can, definitively say where he is buried in that location. All we can say is that he is buried on Tahataharoa somewhere and the location of Tahataharoa being from the Heybridge site through to the base of Pukewhanake.
…
[44] The Council submits that a careful reading of Mr S Rolleston’s 2009 briefs of evidence demonstrates that he used the terms ‘the site’ and ‘Tahataharoa’ interchangeably, and where the Court states he was referring specifically to the Heybridge site, he is referring in fact to Tahataharoa. That conflation can be seen in this statement in Mr S Rolleston’s 2009 brief of evidence:
[63] The applicant has been most helpful in trying to seek a compromise. If the development were on an adjoining property and not on Tahataharoa then I am sure that compromise could have been reached. However, this is not the case. As shown by the Pirirakau witnesses, we are fervently opposed to this development.
…
[68] It is the resting place of our eponymous ancestor Tutereinga. Nothing can and will diminish the fact and knowledge that he rests on that site. The oral traditions and recent historical reports refer to the importance and significance of Tahataharoa.
[45] These statements suggest Mr S Rolleston considered the Heybridge site and Tahataharoa to be the same area. At the 2009 hearing Mr S Rolleston clarified his position as the location of Tahataharoa in comparison to the Heybridge site:31
HIS HONOUR: Mr Rolleston, you are quite firm in your evidence that Tutereinga is buried on the site, meaning the Heybridge site. All of the other witnesses have referred to the burial site as being on Tahataharoa somewhere. I detect a different approach from you, it is very more specific than I understood the other witnesses to be, is there a reason for that?
MR ROLLESTON: I suppose in terms of my family's association with the place and we visited it on the site visit and we saw where my grandparents live and we had a track down to the beach and we used it frequently. A lot of the times we, you know, gathered seafood from around those areas, my dad always referred to that place as Tahataharoa which is the subject site.
To be fair that was the first time that I had actually been onto the site with you on the site visit and visiting the pa site. I have been up and down Lochhead Road many times but not actually been onto the subject site. So in terms of – the information that has been given to me was given to me by my father while we were down on the flats, not in reference to a map of any kind and his descriptions of what that place was and what it meant.
HIS HONOUR: So when he was talking about Tahataharoa was he talking about something narrower, something more specific to the site than the wider area that we have been talking about.
MR ROLLESTON: Well, my dad also talked in landscape terms, you know, just as much as I did and that, you know, it is hard to define where an area of significance starts and where it ends and that was clear from his evidence to the Environment Court in the first sitting about the indivisibility of landscapes.
From my understanding of us collecting shellfish and dragging nets around those areas and him indicating to me where Tahataharoa was I always, I suppose, had that mental association with that whole area which includes the subject site. Up toward where Mr Nelson Parker lives and across to where the ridge drops down onto the flood plain. So that was my understanding of
31 At [14](7) (italics included).
where Tahataharoa was. My dad also made reference to Te Tawa as being the eastern most - the extremities of the site closest to the harbour.
[46] The conclusion to be drawn from those statements in 2009 is that while Pirirakau did not know the boundaries of Tahataharoa, in landscape terms the Heybridge site constituted a core portion of that area, and therefore given Pirirakau’s belief that Tutereinga was buried on Tahataharoa there was a likelihood that Tutereinga was buried on the Heybridge site. That likelihood was supported by the other probative evidence identified by the Environment Court at [20] of its 2013 decision.
[47] At the 2013 hearing the Court had a newfound focus on the size of Tahataharoa and the impact it has on the issue of likelihood. That focus is clear from the statements in the 2013 decision at [25] and the questions put to Mr S Rolleston at the hearing and cited at [24]. At the 2013 hearing Ms Barry-Piceno argued that Tahataharoa was a wide landscape of 90 to 150 hectares, and when compared to the size of the proposed borrow pit of 3.5 hectares, the earthworks would disturb only approximately three per cent of the area in which Tutereinga was likely to reside, and
accordingly it was highly unlikely that Tutereinga would be disturbed.32 Mr Koning
for the Council was asked to comment on that matter and the likelihood of Pirirakau opposing other developments in Tahataharoa.33 The Court then proceeded to question Mr S Rolleston on that same issue. The statements made by Mr S Rolleston in response formed the basis of the Court’s conclusion that there had been a change in position by Pirirakau in respect to the likelihood of Tutereinga being in the vicinity of the Heybridge site.
[48] This focus on the size of Tahataharoa may well have been a relevant consideration at the original hearing in 2009. However, the exact contours of Tahataharoa were not determined in the 2010 decision. In light of Heybridge’s concession that the Heybridge site was within Tahataharoa, the Court decided not to discuss the comprehensive evidence heard as to the extent of Tahataharoa, simply
finding that the area known as Tahataharoa extended to and included the Heybridge
32 2013 EC hearing transcript at 10-11.
33 At 27.
site.34 The Court proceeded to determine whether to grant resource consent without particular reference to the relative size of the Heybridge site in comparison to Tahataharoa and the impact that determination would have on the likelihood of whether Tutereinga would be disturbed by earthworks. Instead they opted to focus on the relevant probative evidence of the relationship of Pirirakau with the Heybridge site. That evidence included the consistency between the site and the geographical description of the ohaaki, the proximity of Ranginui’s pa at
Pukewhanake, and its outlook at Mauao.35
[49] The Court was entitled to take that approach, and it is not open to this Court at the present time to question its decision. At the 2011 appeal Heybridge did not specifically argue that it was wrong for the Court to do so, although I note one of the stated questions of law was whether the Court’s finding that Pirirakau’s belief that Tutereinga might be buried on the site was reasonably open to it. Peters J did not determine that question because it had been overtaken by her other findings, but she nevertheless noted that the Environment Court’s finding was that Pirirakau believed
that Tutereinga might be buried on the site, not that he was buried on the site.36
[50] In my view what changed was not the evidence before the Court, but rather the Court’s interpretation of it, including in particular its assessment of the relevance of the location and size of Tahataharoa and its importance for determining the likelihood that Tutereinga’s remains would be disturbed. This was not a change that can be attributed to the evidence tendered by Pirirakau at the 2013 hearing.
[51] There is an inconsistency between Mr S Rolleston’s statements in his 2009 evidence and the comments made in 2013. At the 2009 hearing he made statements that conflated Tahataharoa with the Heybridge site, while at the 2013 hearing he distinguished between the Heybridge site and the wider Tahataharoa area. However, that inconsistency did not amount to a change in Pirirakau’s position.
[52] At the 2009 hearing Pirirakau presented evidence on the size of Tahataharoa. It was described as a continuous landscape running along the Wairoa river and
34 2010 EC decision at [70].
35 At [55].
36 2011 HC decision at [58].
Tauranga harbour, extending from Oikimoke (in the north) to the Wairoa river and then to Pukewhanake (in the south), a distance of some kilometres.37 The Court was aware that Tahataharoa possibly covered a very large area of approximately 90-150 ha.38 At the 2009 hearing Pirirakau made clear its position that the Heybridge site (approximately 40 ha) formed but part of this larger landscape. The Court accepted this to be the case.39
[53] Mr S Rolleston’s 2009 evidence and Mr P Rolleston’s earlier statements40 must be placed in the context of that position. In their evidence they conflated the Heybridge site with Tahataharoa. Their statements were inconsistent with Pirirakau’s position at the 2009 hearing that Tahataharoa was a larger area than the Heybridge site. While an inconsistency existed, it did so at the time of the 2009 hearing and did not emerge nor constitute a change in position between 2009 and
2013. Pirirakau’s position had always been that Tahataharoa was a larger landscape than the Heybridge site. Mr S Rolleston’s statements at the 2013 hearing reflected this and their position that Tahataharoa was waahi tapu, and it is only to the extent that he corrected his conflation of the two areas that there was a change in evidence. He had previously corrected this conflation to some degree when questioned by the Court during the 2009 hearing, as cited at [45] above.
[54] Since the Environment Court did not see it necessary to specifically address that inconsistency in its 2009 hearing, the inference is that they took account of that evidence and gave it appropriate weight, having regard to the other evidence tendered by Pirirakau suggesting that Tutereinga could be buried anywhere in Tahataharoa and their firm belief the entirety of Tahataharoa was waahi tapu.
[55] In my view the Court was led into error by its focus on Mr S Rolleston’s comments at the 2009 hearing that conflated the Heybridge site and Tahataharoa, and took them out of context without reference to the consistent accepted position of Pirirakau and the amount of evidence tendered by it as to the relative size and
location of Tahataharoa in respect to the Heybridge site. The evidence on the size
37 2010 EC decision at [51].
38 At [64].
39 At [88].
40 At [35] above.
and location of Tahataharoa did not change between the 2009 and 2013 hearings. It was the Court’s assessment of the importance of that information which did. The assessment of its importance had already been made by the Environment Court previously in its 2010 decision, and it was not open to the Environment Court to redetermine the matter in 2013.
[56] The Environment Court’s ambit to determine whether to grant resource consent must also be seen in context with the 2011 High Court decision and the purpose for which Mr S Rolleston’s evidence at the 2013 hearing was tendered. In the 2011 decision Peters J found that the Environment Court had wrongly determined the onus to be on Heybridge to disprove Pirirakau’s belief that Tutereinga’s urupa was on site.41 The matter was remitted back to the Court to reconsider if and how the relationship of Pirirakau and its culture and traditions with the site, stemming from its historical association with the area, including its belief
that Tutereinga might be buried on the site, should be recognised and provided for. As clarified in her refusal to give leave to appeal, she left open the possibility that a s
6(e) relationship could be predominately based on a belief.42
[57] Mr S Rolleston’s statement of evidence for the 2013 hearing was a page and a half long. It was submitted for the limited purpose of updating the Court and parties on Pirirakau’s (as a hapu of Ngati Ranginui) treaty settlement with the Crown that was signed on 21 June 2012. Paragraph 4 reaffirmed Pirirakau’s position on its relationship with Tahataharoa. The hearing took place over the course of one day. That must be contrasted with the evidence heard at the 6 day hearing in 2009, described by Ms Barry-Piceno in her written submissions as comprehensive. In my view the comments made by Mr S Rolleston at the 2013 hearing, made in response to pointed questions, were insufficient when given their appropriate weight to determine that there had been a change of position by Pirirakau of the kind suggested
by the Environment Court.
41 2011 HC decision at [57].
42 Pirirakau Incorporated Society v Heybridge Developments Limited, above n 19 at [20].
Conclusion
[58] For those reasons I am satisfied the Environment Court made the errors of law identified by the appellant in [24]. The Court placed too much weight on the oral statements made by Mr S Rolleston at the 2013 hearing. It gave insufficient weight to the evidence presented by the other Pirirakau witnesses at the 2009 hearing. The result of that error is that it made adverse findings from the evidence of Mr S Rolleston that was not reasonably open to it, having regard to the evidence tendered at the 2009 hearing and applied in the 2010 decision. The Court thereby erred in its assessment that there was a change of position by Pirirakau in respect to its relationship with Tahataharoa between the 2009 and 2013 hearings.
[59] The Court stated that it would have declined the resource consents without the evidence, of Mr S Rolleston. As there was an error in its assessment of that evidence the error materially affected the Court’s decision to grant consent. Accordingly I consider this matter should be remitted back to the Environment Court for further reconsideration. The Environment Court should reconsider the issue put to it by the parties in the joint memorandum dated 11 April 2013, having regard to this decision, the 2010 Environment Court decision, and the 2011 High Court decision.
[60] Given my findings on the evidence, it is unnecessary for me to consider Pirirakau’s alternative argument, namely that the Environment Court may have erred in introducing a probability/likelihood test for cultural effects.
Result
[61] I allow the appeal on questions one, two, three, four and five. The decision of the Environment Court to grant resource consent to D155 is set aside. I direct the matter be remitted back to the Environment Court in light of the above findings.
[62] My view is that the appellant and first respondent are both entitled to costs on a 2B basis from D155. The parties may submit memorandum on costs if they wish. Any memorandum from D155 is to be filed and served by 4.00 p.m. on Thursday,
13 November 2014. Any memoranda in reply are to be filed and served by 4.00 p.m. on Thursday, 27 November 2014.
……………………………….
Woolford J
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