Pirirakau Incorporated Society v Heybridge Developments Limited HC Tauranga CIV-2010-470-585

[2011] NZHC 2030

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2010-470-585

UNDER  section 308(1) of the Resource

Management Act 1991

IN THE MATTER OF      an application for leave to appeal a determination of the High Court at Hamilton on 19 August 2011 in the proceedings CIV-2010-470-585

BETWEEN  PIRIRAKAU INCORPORATED SOCIETY

Applicant

ANDHEYBRIDGE DEVELOPMENTS LIMITED

First Respondent

ANDBAY OF PLENTY REGIONAL COUNCIL Second Respondent

Hearing:         (on the papers)

Counsel:         J P Koning for the Applicant

K Barry-Piceno for the First Respondent
P H Cooney for the Second Respondent

Judgment:      22 December 2011 at 5:00 PM

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 22 December 2011 at 5:00 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Koning Webster, Tauranga – email: [email protected]

Cooney Lees Morgan, Tauranga – email: [email protected]

Counsel:            K Barry-Piceno, Barrister, Tauranga – email: [email protected]

PIRIRAKAU INCORPORATED SOCIETY V HEYBRIDGE DEVELOPMENTS LIMITED HC TAU CIV-

2010-470-585 22 December 2011

[1]      The applicant (“Pirirakau”) seeks leave to appeal to the Court of Appeal against a decision I gave in the High Court at Hamilton on 19 August 2011.   My decision was on an appeal brought under s 299 of the Resource Management Act

1991 (“Act”).

[2]     In written submissions, the second respondent (“Regional Council”) has supported the application for leave and the first respondent (“Heybridge”) has opposed leave being granted.  With the parties’ consent, I (rather than another Judge) have determined the application for leave and have done so on the papers.

[3]      The statutory provisions which govern the grant of leave to appeal in a case such as this are s 308 of the Act and s 144 of the Summary Proceedings Act 1957.  In Huia Resorts Ltd v Ashburton District Council, the Court of Appeal said as follows:1

[2]       The combined effect of s 308 of the Resource Management Act 1991 and s 144 of the Summary Proceedings Act 1957 requires that the applicant meet a threshold before special leave to appeal may be granted by this Court. That is because the applicant is seeking to bring a second appeal against an Environment Court decision. It must show that the further appeal would raise questions of law which by reason of their general or public importance, or for any other reason, ought to be submitted to this Court for decision. It is well established that this threshold entails demonstrating that there is a question of law capable of serious argument in a case involving a public or private interest which is sufficient in its importance to outweigh the cost and delay to the parties of permitting another appeal.

Background

[4]      In or about 2007 Heybridge applied to the Regional Council for resource consent to carry out earthworks and other activities on some 44 hectares of land which it owns in the Bay of Plenty (“the land”).

[5]      In February 2009 the Regional Council declined Heybridge’s application, principally because the earthworks would or might have an adverse effect on Pirirakau’s relationship with the land.  That relationship arises because the land is within a greater area, known as Tahataharoa.  Pirirakau believe that their ancestor,

Tutereinga, was buried within Tahataharoa, and possibly on Heybridge’s land, some

600 years ago.

[6]      Heybridge appealed to the Environment Court against the decision of the

Regional Council.

[7]      The parties agreed the Environment Court should address three issues.  The first was whether Heybridge was being required to relitigate matters already determined in an earlier Environment Court decision.  The second was whether the land was Maori ancestral land and/or waahi tapu, so as to activate s 6(e) of the Act. Section  6(e)  requires  a  consent  authority  to  recognise  and  provide  for  the relationship of Maori and their culture and traditions with their  ancestral lands, water, sites, waahi tapu, and other taonga in achieving the purpose of the Act, as that

purpose is set out in s 5 of the Act.2   The third issue was whether the Environment

Court should grant the consents which Heybridge sought.

[8]      On the first issue, the Environment Court held that Heybridge was not having to relitigate matters already determined in an earlier Environment Court decision. Nothing further turns on that point.

[9]      The Environment Court’s consideration on the second point is relevant to the present application.   Pirirakau’s proposed grounds of appeal relate to the second issue.

[10]     On the second issue the Environment Court held that the land was ancestral land, as it had been owned by Pirirakau’s ancestors and then confiscated.  Nothing turns on that finding of fact.  As to whether the land was waahi tapu, it was common ground that the land would be waahi tapu if Pirirakau were able to establish that Tutereinga had been buried there.  If the land was waahi tapu, Heybridge would be likely to face greater difficulty in obtaining the consents it sought.  At the very least, such a finding would be likely to affect the conditions imposed on any grant of consent.

[11]     The  Environment  Court  said  that  it  was  not  able  to  find  as  a  fact  that Tutereinga was buried on the land and therefore that it could not hold that the land was waahi tapu.  The Court went on to say, however, that it was satisfied Pirirakau held an honest belief that the land might be the burial site of Tutereinga, that the belief was not unlikely, implausible or inconsistent with the evidence the Court had heard, and that Pirirakau retained a relationship with the land because of their historical association with it and the belief to which I have referred.

[12]     On the third issue, the Environment Court declined to grant the consents which Heybridge sought.  In part, the Court refused to grant the consents because it considered that s 6(e) applied and that it was required to recognise and provide for the relationship to which I have referred in the previous paragraph.

High Court decision

[13]     On appeal to the High Court, Heybridge took issue with the Environment Court’s decision on all three issues.  Pirirakau gave notice of intention to appear on the appeal.

[14]     Heybridge’s case on the second issue was that a party who asserts that s 6 applies must first establish the facts required to activate the provision.  Such facts are to be established by adducing sufficiently probative evidence  and satisfying the consent authority on the balance of probabilities that the necessary state of affairs exists.  Heybridge submitted that s 6(e) is not triggered merely because a party has an honest and not disproved belief that a state of affairs exists.

[15]     In this case, that would mean that it was for the Regional Council or Pirirakau to establish on the balance of probabilities that the land was ancestral land or waahi tapu.  If they could not do so, then s 6(e) would not apply.  Heybridge’s point was that the Environment Court recognised and provided for Prirakau’s relationship with the land as  if  it were waahi  tapu when  that  matter was  not  established on  the evidence.

[16]     The Environment Court did not address this point in its decision.  Nor did the Regional Council and Pirirakau make submissions on the point on appeal.   The essence of their case on appeal on this point was that the Court had not acted solely on the strength of Pirirakau’s belief and in any event the matter was of no great consequence because the Environment Court held that the land was ancestral land and that in itself triggers s 6(e).

[17]     Heybridge’s general proposition, namely that it is for a party who asserts a fact to prove it, is correct and the authorities to which Heybridge referred are to the effect that s 6 is only triggered if the necessary facts are first established.  I remitted the matter back to the Environment Court because the Court did not address the point in its decision and because I held that other matters also required further consideration by the Environment Court.

Questions of law

[18]     The questions of law in respect of which Pirirakau seeks leave to appeal relate to the second issue and are as follows:

(a)      Was  the  High  Court  correct  in  determining  that  the  relationship between Pirirakau and their culture and traditions with Tahataharoa cannot be predominantly based on a belief for the purposes of s 6(e) of the Act?

(b)Does  the  determination  of  the  High  Court  that  the  relationship between Pirirakau and their culture and traditions with Tahataharoa cannot be predominantly based on a belief also apply to:

(i)The water, sites, waahi tapu, and other taonga of Pirirakau for the purposes of s 6(e) of the Act?

(ii)Tahataharoa  as  the  historic  heritage  of  Pirirakau  for  the purposes of s 6(e) of the Act?

(iii)The kaitiakitanga of Pirirakau over Tahataharoa under s 7 of the Act?

[19]     I do not consider these are questions of law which meet the threshold referred to in [3] above.

[20]     First, and as Heybridge has submitted in opposition to the grant of leave, I did  not  make  a  determination  that  the  relationship  between  Pirirakau  and  their culture and traditions with Tahataharoa could not be predominantly based on a belief for the purposes of s 6(e).  I said the Environment Court needed to address the point, particularly in light of established authorities concerning s 6.  I referred to several of those authorities in my decision.  In addition, the Environment Court’s views on the point might well affect the view it takes on the third issue.   I also held that the Environment  Court  is  to  reconsider  that  third  issue,  quite  independently  of  the second issue in any event.

[21]     Secondly, even if leave were given on (a), I would not grant it in respect of question (b) as none of the matters referred to were in issue on the appeal.  They will fall to be dealt with in the same way as any other matter under s 6 or 7.

[22]     Thirdly, and as I have said, the matter needs to go back to the Environment Court  in  any event.    I  consider  that  should  occur  before  any further  appeal  is undertaken.

[23]     I decline the application for leave to appeal accordingly.  I make no order as to costs.

..................................................................

PETERS J