Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga
[2022] NZHC 2713
•19 October 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2021-443-61
[2022] NZHC 2713
UNDER the Heritage New Zealand Pouhere Taonga Act 2014 IN THE MATTER OF
an appeal under s 299 of the Resource Management Act 1991 against a decision of the Environment Court upholding the grant of an archaeological authority to First Gas Limited for the removal of a section of pipeline at Clifton Road, Tongapōrutu
BETWEEN
POUTAMA KAITIAKI CHARITABLE TRUST
Appellant
AND
HERITAGE NEW ZEALAND POUHERE TAONGA
Respondent
FIRST GAS LIMITED
Section 301 of Resource Management Act party
Hearing: 17 October 2022 Counsel:
M Gibbs advocate (by leave) for Appellant V N Morrison-Shaw for Respondent
B J Matheson for First Gas Limited
Judgment:
19 October 2022
JUDGMENT OF CHURCHMAN J
Introduction
[1] This is an appeal from a decision of the Environment Court which dismissed an appeal by the Poutama Kaitiaki Charitable Trust (Poutama) against a decision by
POUTAMA KAITIAKI CHARITABLE TRUST v HERITAGE NEW ZEALAND POUHERE TAONGA [2022] NZHC 2713 [19 October 2022]
Heritage New Zealand Pouhere Taonga (HNZPT), to grant to First Gas Limited (FGL) an archaeological authority to modify or destroy an archaeological site (the Authority).1 Poutama allege that the Environment Court erred in its consideration of the appeal.
[2] There are several grounds of appeal. There is much repetition in the grounds of appeal and most of the challenges are to findings of fact. The most significant issue for Poutama appears to be the Environment Court’s conclusion that they are not tangata whenua as that concept is defined in s 6 of the Heritage New Zealand Pouhere Taonga Act 2014 (the Act). That section defines tangata whenua as meaning, “…in relation to a particular place or area, the iwi or hapū that holds, or at any time has held, mana whenua in relation to that place or area”.
[3] HNZPT opposes the appeal. FGL was an interested party in the Environment Court and remains so, and submits that the appeal should be dismissed.2
Factual background
[4] On 21 July 2020, FGL lodged an application for an archaeological authority with HNZPT, so as to be able to remove a redundant section of the Kāpuni gas pipeline from a paper road owned by the New Plymouth District Council in Tongapōrutu. While the project site itself contains no listed archaeological sites, there is a listed pit/terrace site (Q18/77) close to where the works are proposed to occur. The application was therefore made on a ‘precautionary basis’. The adjoining land on both sides of the paper road is owned by the Gibbs Family Trust. Russell Gibbs and Parani Gibbs farm that land with their children, and identify “with the Te Ahuru hapū of a collective describing itself as Ngā Hapū o Poutama”.3
[5] Other members of Poutama include Mr Leigh Horton, Mr Tamawaru Hunt, Ms Marie Gibbs, and Mr Haumoana White. Mr White is Māori, and has whakapapa to Ngāti Tama. Ms Parani Gibbs is Māori of Tūhoe descent. The other members of
1 Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga [2021] NZEnvC 165.
2 Resource Management Act 1991, s 301.
3 Above n 1, at [4].
Poutama are all Pākehā. Poutama, the Gibbs and FGL have been involved previously in litigation. This case is the last of a number of cases that have examined issues around the claims by Poutama, and those connected with it, to be tangata whenua.4 It has previously been decided by this Court, and the Environment Court, that Poutama are not tangata whenua, and are not mana whenua in respect of the area in question.5
[6] The application was accepted on 27 July 2020, and following internal consideration by HNZPT, the Authority was formally issued on 24 August 2020. The Authority:6
covers works to remove 270 metres of a redundant section of the Kāpuni gas pipeline from land near the Coast at Tongapōrutu, North Taranaki. The redundant pipeline is wrapped in a layer of coal tar enamel (CTE) containing asbestos, making its removal necessary in case of erosion around the pipeline. First Gas applied for the Authority on a precautionary basis, as a listed pit/terrace archaeological site (Q18/77) is recorded as being in the vicinity of the proposed works.
…it is generally understood (and we accept) that it is inland at a distance of approximately 50 to 100 metres from the line of the redundant pipe
[7] On 2 September 2020, representatives of HNZPT met with members of Poutama, following which HNZPT concluded that there was no evidence that Poutama was tangata whenua. On 11 September 2020, Poutama filed an appeal against the grant of the Authority, on the grounds that the application and its assessment was deficient. Poutama sought either the revocation of the Authority or to have its alleged deficiencies remedied. Poutama do not oppose the removal of the redundant pipe, and it is common ground that Poutama does not own the land on which the archaeological site is located. They allege that they should be included in the conditions of the Authority as tangata whenua. Poutama’s status as tangata whenua is not accepted by
4 See, for example: Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga [2022] NZEnvC 124; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2022] NZHC 629; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2022] NZHC 628; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZSC 153; Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga [2021] NZEnvC 165, (2021) 23 ELRNZ 216; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZSC 87; and Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZHC 872.
5 Poutama Kaitiaki Charitable Trust and D and T Pascoe v Taranaki Regional Council and Ors [2020] NZHC 3159 at [168]; and Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203 at [467].
6 Above n 1, at [2]-[3].
Ngāti Tama, Ngāti Maniapoto, and HNZPT. It is their collective position that Ngāti Tama are mana whenua in that area, a position with which FGL agree.
Environment Court decision
[8] The main issue addressed by the Environment Court was whether Poutama, through an entity described as the Te Ahuru hapū, are tangata whenua holding mana whenua over the area in respect of which the Authority was granted.7 Pursuant to s 58 of the Act, any person who is directly affected by the exercise of a power to determine an application for an authority, may appeal against that decision. The issues were therefore stated by the Court as:8
(a)whether Poutama/Te Ahuru come within the meaning of the term ‘tangata whenua’ such that they:
(i)should have been consulted (as tangata whenua) about the Authority under s 46; and
(ii)have a right to appeal the Authority as a ‘directly affected’ party under s 58; and
(b)whether the application, assessments and conditions are appropriate.
[9] As Poutama do not own the land on which the works are to take place, or the adjoining land, the Court held that Poutama did not qualify as someone ‘directly affected’ by reason of a proprietary interest in the land.9 After considering the definition of “tangata whenua” in the Act, and a number of other definitions of related terms in tikanga and Te Reo Māori, the Court stated:10
We think it is clear that the term “tangata whenua” as used and defined in the Heritage Act is directed towards the iwi or hapū which holds or at any time has held customary authority over an area by reason of ancestral connection through whakapapa to that place or area.
7 At [10].
8 At [31].
9 At [35].
10 At [48]-[49].
We agree with counsel for Heritage NZ that the term “tangata whenua” in this context means more than simply identifying as Māori. It requires a whakapapa connection to the land.11
[10] In respect of the relevant area, the Court considered that there is “authoritative corroboration” of Ngāti Maniapoto and Ngāti Tama being tangata whenua.12 It then adopted the approach established in Ngāti Hokopu ki Hokowhitu v Whakatane District Council, as the appropriate method to apply where there is conflicting evidence concerning tangata whenua status.13 The Court then stated:14
Extensive documentary evidence was filed on behalf of Poutama and we were also referred to a range of additional sources which [were] said to support or corroborate their claim to tangata whenua status. While we have considered all the evidence, we can dispose of the appeal largely on the basis of the concession properly made by Poutama witnesses that the Te Ahuru hapū do not have a whakapapa connection to the land. We see this as fatal to the claim to tangata whenua status as that term is used in the Act. We also consider that the lack of a whakapapa connection at the hapū level also means that the claim to tangata whenua status on behalf of Poutama the iwi also fails. We also consider that the iwi claim must fail due to lack of corroborating evidence of an iwi known as Poutama or Ngā Hapū o Poutama in both historical and contemporary times.
It is common ground that Mr Gibbs and his siblings do not have a Māori whakapapa.
[11] After hearing evidence from Mr White and Mr Gibbs as to how Te Ahuru became a hapū of Ngā Hapū o Poutama the Court concluded:15
…the commitment demonstrated by Mr Gibbs and his siblings to the incorporation of Māori cultural values into the life of the whānau can be seen as a constructive and positive force not only for them but also for their children and those yet to come.
However, while there is clear evidence of this commitment to the incorporation of Māori values, what is lacking is the necessary whakapapa connection to the land that is the subject of this appeal. An added difficulty, noted by the Court in the Mt Messenger decision is that there is little or no corroborating evidence to support the claim that there was historically, or is in contemporary times a recognised hapū or iwi collective known as Ngā Hapū o Poutama.
Māori Custom and Values in New Zealand Law, NZ Law Commission at [130], as cited in
Ngāti Hokopū Ki Hokowhitu v Whakatane District Council (2002) 9 ELRNZ 111 at [39].
At [50]; citing Ngāti Tama Claims Settlement Act 2003, Part 4, Part 5 and Schedules 1 to 14; and
Director-General of Conservation v Taranaki Regional Council [2019] EnvC 203 at [333].
13 At [53]; citing Ngāti Hokopū, above n 11.
14 At [60]-[61].
15 At [75]-[76].
(footnotes omitted)
[12] In this Court, Poutama repeated the same arguments that they had advanced in the Environment Court that their status as tangata whenua had been confirmed by the Māori Land Court, Ngāti Maniapoto, Ngāti Tama, and by the Waitangi Tribunal. The Māori Land Court decision relied on was a judgment by Harvey J, which dismissed an application by the Gibbs Family Trust to establish a Māori Reservation over their family farm, for lack of a customary connection to the land according to tikanga Māori.16
[13] Poutama referred the Court to the Waitangi Tribunal Petroleum Report, and a report titled Te Mana Whatu Ahuru Volume VI. In the second report, the claim lodged by Mr White and Ms Parani Gibbs (Wai 1747) was considered to be well-founded by the Tribunal. However, the Environment Court stated:17
Notwithstanding the finding that the Wai 1747 claim lodged by Mr White and Ms Parani Gibbs was well founded, we are not persuaded that such limited findings as are recorded in this report amount to authoritative confirmation that Ngā Hapū o Poutama are tangata whenua exercising mana whenua over site Q18/77 and the area affected by the pipe removal works. The status of Poutama/Te Ahuru as tangata whenua over these areas is directly in issue in this case and we are required to make a fact-based evaluation on the evidence before us. To the extent that it is relevant, we see the change in the position taken by Mr White in the Wai 529 claim, the Wai 1747 claim and now in the evidence before us as more indicative of a contemporary political division between Mr White and his Ngāti Tama whanaunga, than as evidence of a distinctive iwi or hapū collective known as Poutama or Ngā Hapū o Poutama. It appears to us that the emergence of Poutama or Ngā Hapū o Poutama is a relatively recent development and we agree with the evidence of Mr Greg White on behalf of Ngāti Tama that Poutama lacks the characteristics of a traditional iwi or hapū.
(footnotes omitted)
[14] Finally, the Court considered that Mr Gibbs’ claim that he has a grandchild buried in the vicinity of the area of the proposed works “inherently implausible”, placing heavy emphasis on Mr Gibbs’ refusal at hearing to conclusively identify the location of the supposed site.18 It therefore concluded that Poutama/Te Ahuru are not
16 Gibbs v Te Runanga o Ngāti Tama [2011] 274 AOT MB 47 (MLC) at [144].
17 At [99].
18 At [110].
tangata whenua or otherwise a directly affected person for the purposes of s 58, concluding also that the application for the Authority was not deficient in any way.19
Procedural history/grounds of appeal
[15] Poutama’s Notice of Appeal was filed by Mr White on 12 November 2021. That document lacks clarity, runs to ten pages, and alleges a significant number of errors made by the Court. In a minute of 13 April 2022, Gwyn J made timetable directions requiring Poutama to “file and serve re-pleaded points on appeal, limited to questions of law and clearly and succinctly stating the issues on appeal, on or before 9 May 2022”.20
[16] On 15 May 2022, Mr White filed a document titled ‘Points on Appeal’. This document contained exactly the same defects as the Notice of Appeal, which Gwyn J directed to be repleaded. It runs to 18 pages and alleges 28 separate grounds of appeal, many of which clearly challenge factual findings.21 Poutama would appear to have simply disregarded the direction made by Gwyn J. In these circumstances, because the right of appeal is limited to questions of law, the most efficient way of addressing the appeal is to ask the question: did the Court err in law?
Positions of the parties
Poutama
[17] Mr White’s written submissions which were spoken to at the hearing by Ms Gibbs, did not develop or elaborate on the material contained in the document entitled ‘Points of Appeal’, and I do not propose to repeat them here. I have listed in a schedule to this decision the 28 grounds of appeal, each with a brief summary of reasons for my conclusion that they do not provide the basis for a successful appeal. Broadly, Poutama’s position is that the Court erred in finding that Poutama is not tangata whenua, and made a number of errors of law in coming to that conclusion, namely that the Court:
19 At [112].
20 Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga (Minute of Gwyn J) HC Wellington CIV-2021-443-61, 13 April 2022 at [16(a)].
21 These are listed in Schedule One.
(a)failed to give effect to or even consider the Ngāti Rahiri v NZ Historic Places Trust [2013] NZHC 2746 and wrongly made a mana whenua determination;
(b)wrongly applied Resource Management Act 1991 (RMA) case law;
(c)wrongly applied the definition of ‘tangata whenua’;
(d)failed to apply s 4 of the Act to Poutama;
(e)erred in failing to give effect to, apply, or even consider a Native Land Court decision or Gibbs v Te Rūnanga o Ngāti Tama [2011] 274 Aotea MB 47 (MLC);
(f)erred in finding that it would be wrong in principle to add non-tangata whenua to the conditions in the Authority;
(g)erred in making a decision contrary to the principles and purpose of the Act; and
(h)wrongly applied Ngāti Hokopū.
HNZPT
[18] Counsel for HNZPT, Ms Morrison-Shaw, submits that the Environment Court did not err. She says that the Ngāti Rahiri decision is irrelevant given that it related to a different issue, being the primacy of Ngāti Rahiri’s rights in respect of the land in issue. She says that the Court did not err in applying RMA case law.
[19] Ms Morrison-Shaw submits that Poutama’s allegations in respect of the Court’s findings as to their status are not matters of law, and fall outside the scope of an appeal under s 299 of the RMA 1991. She says that there was substantial evidence supporting the finding that Poutama is not tangata whenua, and that the weight to be given to that evidence was a matter for the Court. However, if the grounds are available, she
submits that the Court did not err in law, as it correctly applied the approach set out in
Ngāti Hokopū.
[20] Ms Morrison-Shaw says that the Waitangi Tribunal reports do not support Poutama’s position, as the Tribunal did not make the findings alleged by Poutama. She submits that neither does s 4 apply to Poutama, as Poutama has no ancestral connection to the area, which also means that the Court did not err by failing to accept ‘Poutama tikanga’.
[21] She says that the Native Land Court decision and Māori Land Court decision were not relevant to the issue before the Court. Poutama was not a party to either decision, and they addressed different issues, namely:
(a)the Native Land Court decision concerned Ngāti Maniapoto and Ngāti Tama’s relative rights to land in Taranaki pursuant to the Native Lands Act 1865;22 and
(b)the Māori Land Court decision related to the Gibbs’ attempt to have their family farm declared a Māori reservation pursuant to the Te Ture Whenua Māori Act 1993, and did not concern whether or not Poutama were tangata whenua.23
[22] Ms Morrison-Shaw submits that Poutama have not been able to show that there was no evidence to support the Court’s conclusion or that it was one that no reasonable Court could have reached.
FGL
[23] Counsel for FGL, Mr Matheson, submits that the Authority does not authorise work on land owned by the Gibbs family, but rather only authorises works on the Council’s paper road. The application for the Authority was considered necessary on a precautionary basis given the penalties that apply upon the destruction of a known
22 (Interlocutory) Judgment on the Mohakatino Parininihi Block, Native Land Court, 15 June 1882 Fenton Chief Judge; and (Final) Judgment on the Mokau Mohakatino Block, Native Land Court, 20 June 1882 Fenton Chief Judge.
23 Gibbs, above n 16.
archaeological site. The Authority was granted to cover the unlikely risk of archaeological material being encountered during the pipe removal.
[24] As to Poutama’s assertion that there is another waahi tapu/archaeological site in the vicinity of the proposed works, Mr Matheson submits that there was no evidence of this. He says the Tribunal reports do not assist Poutama, as the passage in question in the Petroleum Report was “summarising Poutama’s submissions to the Tribunal (as opposed to being findings by the Tribunal).” He says that the Court made a reasonable factual finding based on the lack of evidence before it, which is unable to be challenged in an appeal of this nature.
[25] Finally, Mr Matheson submits that the Court determined all material matters in accordance with the correct statutory criteria.
Approach to appeal
[26] The approach to an appeal from a decision of the Environment Court was recently accurately summarised by Isac J.24 Appeals to the High Court against a decision of the Environment Court are only available on a matter of law. An error of law will have occurred where the Court has:25
(a)applied a wrong legal test;
(b)taken into account irrelevant matters;
(c)failed to take into account relevant matters; or
(d)come to a conclusion without evidence or to a conclusion it could not have reasonably come.
24 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2022] NZHC 629.
25 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[27]; Estate Homes Ltd v Waitakere City Council [2006] 2 NZLR 619 (CA) at [198]; Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201, [2021] NZRMA 492 at [60]; and Redmond Retail Ltd v Ashburton District Council [2021] NZHC 2887 at [38]–[39].
[27] Any error of law must materially affect the result of the court’s decision before it would be appropriate for the appellate court to grant relief.26 Materiality is a matter of judgment for the appeal court rather than a question of proof to a particular standard.27
[28] Many of Poutama’s arguments on appeal fail on this approach, as they relate to disputed matters of fact, rather than errors of law, and cannot be challenged on an appeal under s 299 of the RMA 1991.
Analysis
[29] In short, this appeal is wholly misconceived and cannot succeed. I now set out my reasons for this conclusion.
[30] Firstly, the issue in the Environment Court was described by the Court succinctly. It was in simple terms, whether Poutama had the status to bring an appeal in the terms of s 58 of the Act. Contrary to Poutama’s assertion that the Environment Court ‘granted’ the Authority, that is not the case. HNZPT granted the Authority. The Act provides a mechanism by which parties who are ‘directly affected’ by the grant of an authority, can appeal against that. Such persons are:28
(a)a person with a proprietorial interest in the land;
(b)the applicant for the authority;
(c)tangata whenua who are linked to the site through their ancestry; or
(d)other persons without a proprietorial interest in the land, such as children and grandchildren being directly affected by a proposal to dig a up a grandparent’s grave.
26 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153;
Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [52]-[54].
27 Manos v Waitakere City Council [1996] NZRMA 145 (CA) at 148, as cited in Auckland Council v Cabra Rural Developments Ltd [2019] NZHC 1892, (2019) 21 ELRNZ 185 at [75].
28 King v Heritage New Zealand Pouhere Taonga [2018] NZENVC 214 at [40] citing Campaign for a Better City v New Zealand Historic Places Trust [2004] NZRMA493 (HC).
[31] As such, it was therefore necessary for the Court to consider whether Poutama are tangata whenua, or whether they were otherwise directly affected. I do not consider that entering into that assessment amounted to an error of law, and nor did the Court incorrectly apply the definition of tangata whenua in the Act, basing their conclusion on evidence from “both historical and contemporary times.29
[32] The Court correctly applied the approach set out in Ngāti Hokopū.30 Nor was the case of Ngāti Rahiri relevant, as it concerned two groups who were both accepted to be tangata whenua, contesting the relative primacy of their interests. The present case concerns whether Poutama are tangata whenua at all. That is a different question, and one which the Court was obliged to determine on the evidence before it. The Court was not required to enter into that same consideration in respect of Ngāti Tama or Ngāti Maniapoto, given that it was not those hapū that sought to appeal against HNZPT’s decision. Poutama did that. Ngāti Tama and Ngāti Maniapoto’s status as tangata whenua was not in issue, and the Court was entitled to consider their views in determining whether or not Poutama has tangata whenua status.
[33] I am not satisfied that the Court erred in citing Resource Management case law. The passage that Mr White and Ms Gibbs cite in favour of that alleged error is from Ngāti Rahiri.31 Through reference to that passage, Poutama appears to be alleging that the Court had no jurisdiction to determine whether Poutama are tangata whenua because:32
The [Historic Places Act 1991] does not require the [New Zealand Historic Places Trust] to assess the relationships of Maori with their ancestral lands so as to determine and accord precedence between claimed interests.
[34] Regardless of the fact that Ngāti Rahiri was decided pursuant to the previous legislation, that statement does not assist Poutama at all. Again, the issue in the Environment Court was not a conflict between two Māori parties as to the relative primacies of their interests, but whether Poutama are tangata whenua (in terms of the
29 At [60].
30 Ngāti Hokopū, above n 11.
31 Ngāti Rahiri v NZ Historic Places Trust [2013] NZHC 2746 at [35].
32 At [35]; the Historic Places Act 1991, and the New Zealand Historic Places Trust were the predecessors to the Heritage New Zealand Pouhere Taonga Act 2014 and Heritage New Zealand Pouhere Taonga.
Act) at all. Poutama’s submission presupposes that Poutama are tangata whenua, which they are clearly not. There was ample ground for the Court’s conclusion (recorded at [11] above) that the Te Ahuru hapū did not have a whakapapa connection with the land concerned. That included the concession by Poutama’s witnesses to that effect in the evidence before the Court. There was also ample evidence to support the Court’s conclusion (set out at [14] above) that the entity now referred to as Ngā Hapū o Poutama is a relatively recent development that lacks the characteristics of a traditional iwi or hapū. One of the most startling differences between Ngā Hapū o Poutama and traditional hapū is the appellant’s assertion that Pākehā, or Māori who whakapapa to another iwi in a different part of the country and who have no whakapapa connection to the land in question, can somehow become tangata whenua in respect of this land by joining the hapū. That proposition is contrary to the most fundamental requirements of tikanga.
[35] In the recent case of Ellis v The King,33 Glazebrook J, who delivered the leading judgment referred to and adopted the conclusion of the two pukenga, Sir Hirini Moko Mead and Sir Pou Temara, who had been engaged to provide advice on tikanga. That advice recorded the critical requirements of tikanga for the establishment of mana. At [131], the decision provides:
Mana tuku ihu: this is mana inherited from ancestors. Under tikanga, everyone is born with mana by virtue of having a whakapapa (genealogy) and being born into a collective whether that be a whānau (family), hapū (sub- tribe) or iwi (tribe) …
[36] Poutama’s assertion that Pākehā and others who lack whakapapa can nonetheless acquire mana whenua is inconsistent with this fundamental proposition.
[37] It is common ground that the work that is the subject of the Authority is only to be undertaken on the paper road owned by the New Plymouth District Council. The Authority does not allow works to be undertaken elsewhere, and exists solely for the purpose of managing the risk that the known archaeological site located some distance from the paper road may be impacted by work on the paper road. Neither HNZPT nor the Court granted an authority to carry out works on land owned by the Gibbs Family
33 Ellis v The King [2022] NZSC 114.
Trust. The Court was entitled to find that, as Poutama does not have a proprietorial interest in the land, and are not tangata whenua, that they were not directly affected by the grant of the Authority.
[38] Poutama alleges that the Environment Court failed to give effect to a decision of the Native Land Court from 1882. The judgment shows that the Court considered all of the evidence that was before it.34 The weight accorded to that evidence was a matter for the Environment Court, and is not to be disturbed on appeal unless the finding was inherently unreasonable. In any event, the Native Land Court decision involved Ngāti Maniapoto and Ngāti Tama and concerned their relative rights to an area of land called Poutama in Taranaki, pursuant to the Native Lands Act 1865. That decision does not show that Poutama Kaitiaki Charitable Trust are tangata whenua. Nor did it prohibit the Court from enquiring into whether Poutama are tangata whenua.
[39] The same can be said for Judge Harvey’s decision in the Māori Land Court.35 Judge Harvey’s decision addressed whether the Gibbs family could turn their farm into a Māori reservation. The application was ultimately unsuccessful because the Gibbs family could not show an ancestral connection to the land in terms of tikanga Māori, which requires whakapapa.36 It is not evidence which establishes that Poutama is tangata whenua.
[40] Accordingly, the Court did not err in failing to apply s 4 of the Act to Poutama, or in incorrectly applying the purposes and principles of the Act. Section 4(d) relates to “the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tūpuna, wāhi tapu, and other taonga”. As Poutama is not tangata whenua, s 4(d) has no application to them. The other aspects of s 4 were adequately given force in the application for the Authority, the decision to grant the Authority, and the Environment Court’s dismissal of Poutama’s appeal. Specifically, the inclusion of Ngāti Tama in the conditions of the Authority, and the precautionary approach taken by FGL, are both factors which give effect to the purpose and principles of the Act.
34 At [60].
35 Above n 16.
36 Above n 16, at [157].
[41]Poutama submitted that:
The Court erred in finding that it would be wrong in principle to add non- tangata whenua to the conditions in the authority, when the conditions specifically contain the disclaimer “This is not a statement of mana whenua status”.
[42] There are some issues with this statement. It appears to some extent, to accept that Poutama are not tangata whenua, but should nonetheless be afforded the protections accorded to tangata whenua under the Act, because the Authority itself does not purport to determine who is mana whenua. The Court’s decision was that Poutama are not tangata whenua, and so to afford them protection through inclusion in the conditions of the Authority would in fact, be wrong in principle – as it would afford them a right to which they are not entitled. There is no error in that conclusion.
[43] In any case, Poutama is clearly attempting to relitigate a matter that has already been determined twice by this Court, and the Environment Court.37 On that basis alone, I am satisfied that the appeal should be dismissed as an abuse of process.
Factual allegations
[44] As noted, appeals pursuant to s 299 of the RMA 1991 are only available in respect of a matter of law. The following grounds of appeal alleged by Poutama are factual findings, which were available to the Court on the evidence before it. Poutama have not shown that these findings were of a nature that ‘no reasonable Court could have reached” them.38 These grounds are that the Court:
(a)failed “to require a new application for an Authority to modify or destroy an unrecorded archaeological site”;
37 Poutama Kaitiaki Charitable Trust and D and T Pascoe v Taranaki Regional Council and Ors [2020] NZHC 3159 at [168]; Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203 at [467]; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2022] NZHC 629; and Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga [2021] NZEnvC 165.
38 Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 (SC), at [26].
(b)failed to address that in the past Ngāti Maniapoto and Ngāti Tama had recognised Ngā Hapū o Poutama as tangata whenua in respect of the area affected by the proposed works;
(c)wrongly found that Mr White’s position had changed in respect of his relationship with Ngāti Tama and challenged Poutama tikanga;
(d)wrongly found that “Ngā Hapū o Poutama, including Ngāti Wai ki Te Kawau and Te Ahuru ki Tongapōrutu, are not otherwise directly affected for the purposes of s 58”;
(e)erred in “finding that in relation to Q18/77 Ngāti Maniapoto acknowledge Ngāti Tama as the iwi holding mana whenua”;
(f)erred in “finding that the conditions provide for Ngāti Tama when the conditions only provide for Ngāti Tama ki Pukearuhe (TRoNT), [a small subsection of Ngāti Tama]”;
(g)erred in failing “to determine the appeal on actual or potential damage to interests directly affected”;
(h)wrongly “overlooked, dismissed or set aside any cultural effects and occupation including sites of interest to Poutama”;
(i)erred in “Misrepresenting the make-up and whakapapa of Te Ahuru ki Tongaporutu”; and
(j)erred in finding that “Ngā Hapū o Poutama, including Ngāti Wai ki Te Kawau and Te Ahuru ki Tongapōrutu, are not otherwise directly affected for the purposes of s 58 when the Court accepted the proposed works are “within an area Poutama recognises as part of the rohe of the Te Ahuru hapū” and the Waitangi Tribunal Report on the Management of the Petroleum Resource confirms that the area of the proposed works is a place where ancestral bones lie and is, therefore, a waahi tapu and of particular concern to Ngā Hapū o Poutama”.
[45] These factual findings cannot be challenged in an appeal limited to matters of law.
Result
[46]The Environment Court made no error of law. The appeal is dismissed.
[47] I invite the parties to settle the question of costs between themselves but, in the absence of agreement the respondent and s 301 party are to file and serve memoranda of no greater than five pages in length within 14 days of the date of this decision, with the appellant to file and serve submissions in reply, of no greater than five pages in length, no later than 14 days after receipt of the respondent and s 301 party’s submissions. I will then determine the matter on the papers.
Churchman J
Solicitors:
Atkins Holm Majurey, Auckland for Respondent
Govett Quilliam, New Plymouth for FGL, a s 301 Resource Management Act party
cc: M Gibbs
V N Morrison-Shaw B J Matheson
SCHEDULE ONE
Ground of appeal
Answer
The Court “Wrongly granted an Authority to modify or destroy recorded archaeological site Q18/77 when Q18/77 is located outside the proposed area of works”.
The Court did not grant the Authority. The Authority was granted by Heritage NZ. It is common ground that the work is only to be
undertaken on the paper road owned by NPDC.
The Authority does not allow works to be undertaken elsewhere, and exists solely for the purpose of managing the risk that the
archaeological site may be impacted by work on the paper road. Nor is the land in question owned by Poutama. There is no identifiable error of law under this ground.
The Court failed “to require a new application for an Authority to modify or destroy an
unrecorded archaeological site”.
This ground attempts to challenge a factual finding of the Environment Court. The Court
considered that it was “inherently implausible that Mr Gibbs, his wife or his whānau would choose to bury a family member within the
corridor of the redundant pipe” (at [110]). It is not a ground of appeal on a matter of law and is therefore unable to be enquired into further.
The Court wrongly stated the focus of the
appeal as “recognition of [Poutama’s] claim to status as tangata whenua” rather than “who are the Māori/tangata whenua/hapū that have a
legitimate interest in the area”.
See above at [29]-[43].
The Court “Failed to give effect to or even
consider the Ngāti Rahiri v NZ Historic Places Trust [2013] NZHC 2746” and wrongly made “a mana whenua determination”.
See above at [29]-[43].
The Court wrongly applied Resource
Management Act 1991 case law to the Heritage Act.
See above at [29]-[43].
The Court wrongly made “a mana whenua
determination when the Heritage NZ statutory assessment for the application had already
confirmed Ngā Hapū o Poutama are tangata whenua and that the Gibbs whānau have an enacted right to be consulted over this
application within the provisions of section 46(2)(h) of the Act as an affected party”.
See above at [29]-[43].
The Court wrongly applied the definition of
tangata whenua in the Heritage Act, by focusing on ‘who holds tangata whenua status over the
site’ instead of who has held tangata whenua status at any time.See above at [29]-[43].
The Court failed to address that in the past Ngāti Maniapoto and Ngāti Tama had
recognised Ngā Hapū o Poutama as tangata whenua in respect of the area affected by the proposed works.
The Court correctly applied the approach set out in Ngāti Hokopū in relation to this matter. Its finding was a factual one. Appeals under s 299 of the Resource Management Act 1991 can only be on a matter of law. The Court was
entitled to make its own determination on the evidence before it. No error of law has been alleged in this ground of appeal.
The Court wrongly found that Mr White’s position had changed in respect of his
relationship with Ngāti Tama and challenged Poutama tikanga.
This is was a factual finding. Appeals under s 299 of the Resource Management Act 1991 can only be on a matter of law. The Court was
entitled to make its own determination on the evidence before it. No error of law has been alleged in this ground of appeal.
The Court wrongly found that “Ngā Hapū o Poutama, including Ngāti Wai ki Te Kawau and Te Ahuru ki Tongapōrutu, are not otherwise
directly affected for the purposes of s 58”.
This is was a factual finding. Appeals under s 299 of the Resource Management Act 1991 can only be on a matter of law. The Court was
entitled to make its own determination on the evidence before it. No error of law has been alleged in this ground of appeal. See above at [29]-[43].
The Court erred in failing to apply s 4 of the Heritage Act to Ngā Hapū o Poutama, including Ngāti Wai ki Te Kawau and Te Ahuru ki
Tongapōrutu.
Section 4 of the Heritage Act cannot apply to Poutama as they have not established that they are tangata whenua. See above at [29]-[43].
The Court erred in failing to give effect to,
apply, or even consider the 1882 Native Land Court decision.
The judgment shows that the Court considered all of the evidence that was before it (at [60]).
Nevertheless, the Native Land Court decision
involved Ngāti Maniapoto and Ngāti Tama and concerned their relative rights to an area of land called Poutama in Taranaki pursuant to the Native Lands Act 1865. That decision does not show that Poutama Kaitiaki Charitable Trust are tangata whenua.
The Court erred in stating that “the issue as to whether or not Poutama were tangata whenua was not before Judge Harvey”.
The Court did not err in making this statement. Poutama were not a party to that decision, and whether or not they were tangata whenua was not an issue for determination. Judge Harvey’s decision addressed whether the Gibbs family
could turn their farm into a Māori reservation.
The Court erred in not considering that the principles of res judicata and issue estoppel
apply in respect of the 1882 Native Land Court decision and Gibbs v Te Rūnanga o Ngāti Tama [2011] 274 Aotea MB 47 (MLC).
Neither the 1882 Native Land Court decision or
Gibbs v Te Rūnanga o Ngāti Tama prohibited
the Court from inquiring into whether Poutama is tangata whenua. The Court was required to consider whether Poutama were directly
affected by the grant of the Authority. That
involved a consideration of whether Poutama are tangata whenua.
Judge Harvey’s decision addressed whether the Gibbs family could turn their farm into a Māori reservation. The Native Land Court decision
involved Ngāti Maniapoto and Ngāti Tama, and concerned their relative rights to an area of land called Poutama in Taranaki pursuant to the Native Lands Act 1865. Neither of those
decisions establish that Poutama Kaitiaki Charitable Trust are tangata whenua.
See above at [29]-[43].
The Court erred in “Failing to apply authorities, findings, rules, and evidence, including the 1840 rule, evenly and consistently, instead
limiting cultural rights to Crown settlement arrangements.”
Poutama’s submissions did not develop this ground. In the absence of further particulars, the Court is unable to inquire into it. Nevertheless, the Environment Court did not fail to apply
relevant authorities or use the evidence relating to Crown settlement arrangements as the sole determinate in considering whether a group has tangata whenua status. It rightly identified that such status derives from whakapapa and
tikanga Māori.
The Court erred in “finding that in relation to Q18/77 Ngāti Maniapoto acknowledge Ngāti Tama as the iwi holding mana whenua”.
Poutama’s submissions did not develop this ground. In the absence of further particulars, the Court is unable to inquire into it. Nevertheless, this was a factual finding reasonably available
to the Court on the evidence before them. It is not able to be challenged in an appeal of this nature.
The Court erred in “finding that the conditions provide for Ngāti Tama when the conditions only provide for Ngāti Tama ki Pukearuhe (TRoNT), [a small subsection of Ngāti Tama]”.
Poutama’s submissions did not develop this ground. In the absence of further particulars, the Court is unable to inquire into it. Nevertheless, this was a factual finding reasonably available
to the Court on the evidence before them. It is not able to be challenged in an appeal of this nature.
The Court erred in “endorsing that the Ngāti Tama Claims Settlement Act is a form of legal and political recognition of their mana whenua and kaitiakitanga, and means anything other
than the Settlement Act itself”.
Poutama’s submissions did not develop this ground. In the absence of further particulars, the Court is unable to inquire into it.
Nevertheless, the Environment Court did not use the evidence relating to Crown settlement arrangements as the sole determinant in
considering whether a group has tangata whenua status. It rightly identified that such status derives from whakapapa and tikanga Māori. It also rightly considered that a
legislative settlement is evidence of a group’s status as tangata whenua.
The Court erred in “Failing to address the
contradictions, motives, bias, agenda, collateral challenge against Ngā Hapū o Poutama from First Gas and Heritage NZ”
No factual basis was or has been provided by Poutama for this allegation. No identifiable
error of law has been alleged. The Court is therefore unable to enquire into it further.
The Court erred in “Failing to accept Poutama tikanga, customary authority, evidence, [and] context”
Given the finding that Poutama was not tangata whenua (which was a finding available to the Court on the evidence before it), the Court was not required to have regard to Poutama tikanga. Failure to do so was not an error of law.
The Court erred in failing “to determine the
appeal on actual or potential damage to interests directly affected”
The Court concluded that Poutama’s interests were not directly affected. This was a factual
finding reasonably available to the Court on the evidence before them. It is not able to be
challenged in an appeal of this nature.
The Court “Wrongly overlooked, dismissed or set aside any cultural effects and occupation
including sites of interest to Poutama”
The Court concluded that Poutama’s interests were not directly affected. This was a factual
finding reasonably available to the Court on the evidence before them. It is not able to be
challenged in an appeal of this nature. There was no error of law in that decision.
The Court erred in finding that it would be wrong in principle to add non-tangata whenua to the conditions in the authority, when the
conditions specifically contain the disclaimer “This is not a statement of mana whenua
status”.
See above at [29]–[43].
The Court erred in confounding historic and contemporary identities, and layers of interest over time
Poutama’s submissions did not develop this ground. There is no basis on which to consider that the Environment Court made an error of
law on the wording of this ground.
The Court erred in “Misrepresenting the make- up and whakapapa of Te Ahuru ki Tongaporutu”
Poutama’s submissions did not develop this ground. There is no basis on which to consider that the Environment Court made an error of
law on the wording of this ground. Nevertheless, this was a factual finding reasonably available to the Court on the
evidence before them. It is not able to be challenged in an appeal of this nature.
The Court erred in “Wrongly issuing a decision contrary to the principles and purpose of the Act”
See above at [29]–[43].
The Court erred in “failing to properly and
evenly apply the rule of reason approach as set out in Ngāti Hokopu, including whether there is external evidence, and whether that external
evidence has potentially changed”
See above at [29]–[43]. The Court correctly
applied the approach set out in Ngāti Hokopū in relation to this matter.
The Court erred in finding that “Ngā Hapū o Poutama, including Ngāti Wai ki Te Kawau and Te Ahuru ki Tongapōrutu, are not otherwise
directly affected for the purposes of s 58 when
This is was a factual finding. Appeals under s 299 of the Resource Management Act 1991 can only be on a matter of law. The Court was
entitled to make its own determination on the
the Court accepted the proposed works are
“within an area Poutama recognises as part of
the rohe of the Te Ahuru hapū” and the Waitangi Tribunal Report on the Management of the Petroleum Resource confirms that the area of
the proposed works is a place where ancestral bones lie and is, therefore, a waahi tapu and of particular concern to Ngā Hapū o Poutama”
evidence before it. No error of law has been alleged in this ground of appeal. See above at [29]–[43].
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