Poutama Kaitiaki Charitable Trust v Taranaki Regional Council
[2021] NZHC 326
•2 March 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-443-005
[2021] NZHC 326
UNDER THE Resource Management Act 1991 (RMA) IN THE MATTER
of an appeal from a decision of the
Environment Court pursuant to section 299 of the RMA
BETWEEN
POUTAMA KAITIAKI CHARITABLE TRUST AND D & T PASCOE
Appellants
AND
TARANAKI REGIONAL COUNCIL
First Respondent
AND
NEW PLYMOUTH DISTRICT COUNCIL
Second Respondent
AND
NEW ZEALAND TRANSPORT AGENCY
Third Respondent
AND
TE RUNANGA O NGATI TAMA TRUST
Section 301 Party
AND
TE KOROWAI TIAKI O TE HAUAURU INCORPORATED
Section 301 Party
Hearing: 18 February 2021 Counsel:
M and R Gibbs in person for Appellants (Poutama Kaitiaki Charitable Trust)
S Grey for Appellants (D & T Pascoe)
H Harwood for First and Second Respondent P Beverley and D Allen for Third Respondent
P Majurey and V Morrison-Shaw for Te Rūnanga o Ngāti Tama Trust
V Morrison-Shaw for Section 301 Party
Judgment:
2 March 2021
POUTAMA KAITIAKI CHARITABLE TRUST & ANOR v TARANAKI REGIONAL COUNCIL & ORS [2021] NZHC 326 [2 March 2021]
JUDGMENT OF GRICE J (Application for recall)
[1] One of the appellants, Poutama Kaitiaki Charitable Trust, has filed an application for recall of a judgment dismissing the appellants’ appeal against an interim decision of the Environment Court.1 The appeal related to the Environment Court’s interim decision, in general terms, allowing construction by New Zealand Transport Agency (Waka Kotahi) of a six kilometre part of the Taranaki/Waikato State Highway 3. The proposed road replaces an existing section of highway over Mt Messenger, which Waka Kotahi said was unsafe and no longer fit for purpose.
[2] The replacement road will run through the Mangapepeke Valley where Mr and Mrs Pascoe live on their family farm. Poutama claims a cultural connection with the land and, in particular, it says it exercises kaitiakitanga over the land and is tāngata whenua. The Environment Court found, for the purposes of the matters before it, that Te Rūnanga o Ngāti Tama Trust exercised mana whenua and exercised kaitiakitanga over the project area. It concluded that Poutama had no cultural connection for the purposes of the Resource Management Act 1991.2 The cultural issues are the focus of the application for recall.
[3] Various other matters were dealt with in the appeal including the adverse effects of the project in various respects affecting Mr and Mrs Pascoe and their home. Mr and Mrs Pascoe do not seek a recall of the judgment in their own right. However, Ms Grey appearing for them supported Poutama’s application for recall and made submissions in support of Poutama’s application at the hearing.
[4]The grounds for recall that Poutama raises fall into three general categories:
(i)Matters which are presently before the Environment Court: it has not yet made its final decision in relation to the Waka Kotahi applications.
1 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159 [“the High Court decision”], dismissing the appeal from the Environment Court in Director-General of Conservation v Taranaki Regional Council [2018] NZEnvC 203 [“the Environment Court decision”]. Waka Kotahi had sought various consents and approval of the notice designating the project land.
2 The High Court decision, above n 1, at [8].
(ii)Cultural issues: the High Court made errors in its assessment of the Environment Court decision that, for the purposes of the project, Poutama did not have mana whenua and the High Court failed to take into account authorities including a High Court decision delivered after the appeal was heard: Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd.3
(iii)The publication of new authority since the High Court decision was delivered. This refers to a new report released by the Waitangi Tribunal entitled “Te Mana Whatu Ahuru: Report on the Te Rohe Pōtae Claims”, sixth and final part of Take a Takiwā, released on 22 December 20204 (after the High Court decision). Poutama says this report contains information that confirms Poutama as tāngata whenua.
Principles relating to recall applications
[5]Rule 11.9 of the High Court Rules 2016 says:
A Judge may recall a judgment given orally or in writing at any time before a formal recall of it is drawn up and sealed.
[6] The Courts have confirmed that the recall power will be exercised only in exceptional circumstances and within prescribed limits.5 There are significant policy reasons for requiring an order to stand as conclusive unless overturned on appeal or otherwise.6
[7] A recall of a judgment will only be taken in reasonably well identified situations. The leading statement in New Zealand remains that of Wild CJ in Horowhenua County v Nash (No 2):7
3 Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768 [“Ngāti Maru Trust”].
4 Waitangi Tribunal Te Mana Whatu Ahuru: Report on the Te Rohe Pōtae Claims, Part VI of Take a Takiwā – Pre-publication Version (Wai898, 2020) [“Waitangi Tribunal Report of Te Mana Whatu Ahuru”].
5 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28].
6 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [HR11.9.01(2)].
7 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and higher authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[8]The Supreme Court, in Uhrle v R,8 recently reiterated that the criteria in Nash
will apply.
[9] I now turn to consider the grounds put forward by Poutama in support of its application.
First category: issues before the Environment Court
[10] The grounds in (a), (b) and (c) fall into this category. Ground (a) relates to an amendment Waka Kotahi is seeking in relation to conditions. It says that there are duplicate provisions that should be reconciled. That matter is to be considered by the Environment Court in its final decision.
[11] Ground (b) relates to an allegation by Poutama that Waka Kotahi misled the Environment Court concerning its erection of dams on the valley floor, thus leading to an inaccurate hydraulic report and also generally going to the “integrity of these proceedings and the reliability of its findings”. This was not a matter raised on appeal as it has apparently only recently surfaced in the context of further considerations by the Environment Court.
[12] Both of those issues are presently before the Environment Court and were not be subject of the appeal. They are not grounds for recall.
[13] Ground (c) is that a dated long-term plan (2015-2025) was before the Commissioner who heard the relevant applications for the local authorities, rather than the latest one for 2018-2028. Again, this was not a matter argued before the High Court on appeal. Waka Kotahi submitted that the Environment Court had noted
8 Uhrle v R [2020] NZSC 62 at [22] and [29].
in its judgment that the 2015-2025 report was a “non-statutory instrument” that was put before it, but noted that nothing turned on the significance of that document and the other non-statutory instruments.9
[14] Again this is not a matter that was before the High Court on appeal. It is not a ground for a recall.
Second category: Cultural issues
[15] I now turn to what Ms Gibbs for Poutama described as her “fundamental submission”. This concerned the Environment Court’s evaluation of cultural matters and its finding that Poutama were not iwi or hapu for the purposes of the project land and that Poutama was not tāngata whenua exercising kaitiakitanga or other cultural rights.10 Poutama says the Environment Court was in error in not accepting as a matter of law that Poutama was already recognised as tāngata whenua in legal proceedings in the Waitangi Tribunal, Māori Land Court , the Native Land Court and High Court.
[16] Poutama says the Environment Court was not entitled to look behind those authorities to reach its own conclusion on the issues. The decisions and reports to which Poutama refers in its grounds for recall (d) and (e) were the Poutama 1882 Native Land Court decision (ground (d)) and the Māori Land Court decision of Gibbs v Te Rūnanga o Ngāti Tama11 and the Waitangi Tribunal’s “The Report on the Management of the Petroleum Resource” (ground (e)).12 Both of these were considered by the Environment Court and the High Court on appeal.13 These grounds for recall fail.
[17] In ground (f), Poutama refers to the decision in Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd,14 which was delivered after the hearing of the appeal.
9 The Environment Court decision, above n 1, at [424].
10 The High Court decision, above n 1, at [95] and [113].
11 Gibbs v Te Rūnanga o Ngāti Tama - Part Lot 2 & Lot 1 DP 4866 (TNK 4/901) and Section 1 SO 10359 CT TNK 4/792 (2011) 274 Aotea MB 47 (274 AOT 47).
12 Waitangi Tribunal The Report on the Management of the Petroleum Resource (Wai 796, 2011).
13 The High Court decision, above n 1, at [117] and [137]; and the Environment Court decision, above n 1, at [343]–[344].
14 Ngāti Maru Trust, above n 3.
Poutama says that the decision shows that the Environment Court took the wrong approach and that the High Court should have allowed the appeal on that basis.
[18] However this case was before the Court. I received submissions from the parties in relation to the case following the hearing. I concluded that the approach of the Environment Court in this case was not inconsistent with the approach set out in Ngāti Maru.15 In summary, I found that the Environment Court had followed approved methodology and concluded that Poutama and/or the Pascoe whānau had not established any cultural connections that should be recognised.16 Ground (f) fails.
Third category: release of report since the judgment
[19] The third category of grounds for recall relates to the recent release of the report of the Waitangi Tribunal.17 Poutama says the report confirms Poutama’s tino rangatiratanga and kaitiakitanga as tāngata whenua in relation to the project land.
[20] This report was released after the High Court judgment. It relates to 270 Treaty claims in respect of the Te Rohe Pōtae enquiry district. That district extends from Whāingaroa Harbour to Northern Taranaki and inland to the Waikato River in Taumarunui. The report addresses the impact of the Crown’s actions, omissions, policy and legislation on the ability of Te Rohe Pōtae Māori to exercise mana whakahaere, tino rangatiratinga and kaitiakitanga over the district and its inhabitants.18 Poutama says the information in this report supports its claims as tāngata whenua in the project area.
[21] The appeal was on a question of law. As I outlined in my judgment, factual errors and inferences or conclusions drawn from facts may amount to errors of law, but it is the want of evidence, rather than the weight, which constitutes an error of
15 The High Court decision, above n 1, at [169].
16 At [168].
17 Waitangi Tribunal Te Mana Whatu Ahuru, above n 4. This was an additional ground for recall raised after the original application was made.
18 At [xiii].
law.19 Appeals are also not the place to re-litigate factual findings.20 I found that the Environment Court had an evidential basis for its decision and made no error of law in its assessment of cultural issues.21
[22] Although the report may contain information that might have been relevant to Poutama’s arguments in the Environment Court, it was not available at either at the time of the appeal hearing or the Environment Court hearing. The Environment Court could not have considered it as evidence.
[23] The Waitangi Tribunal is a standing commission of inquiry.22 It makes recommendations on claims brought by Māori relating to legislation, policies, actions or omissions of the Crown that are alleged to breach the promises made in the Treaty of Waitangi.23 Its reports are considered by the courts as respected sources of information and evidence.
[24] However, the Waitangi Tribunal is not generally regarded a court that makes findings of law or fact in the sense referred to in Horowhenua County v Nash (No 2).24 There have been recent legal developments as to the role of tikanga in the law,25 affecting whether the Waitangi Tribunal, in making findings of mana whenua, are in fact findings of tikanga, however this is not an application to decide such a question.
[25] However for the purposes of this recall application the recent Waitangi Tribunal report does not amount to a judicial decision of relevance and higher authority. This ground fails.
19 The High Court decision, above n 1, at [37]; citing Moriarty v North Shore City Council [1994] NZRMA 433 (HC) at 437; Hunt v Auckland City Council HC Auckland HC41/95, 31 October 1995 at 9; Skinner v Tauranga District Council HC Auckland AP98/02, 5 March 2003 at [13]; and Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at [31].
20 Heybridge Developments Ltd v Bay of Plenty Regional Council (2011) 16 ELRNZ 593 (HC) at [3]; citing New Zealand Suncern Construction Ltd v Auckland City Council [1997] NZRMA 419 (HC) at 426.
21 The High Court decision, above n 1, at [111], [118], [136], [160], [167] and [171].
22 Treaty of Waitangi Act 1975, sch 2 cl 8.
23 Section 5.24 Te Rūnanga o Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641 at 651–652. Horowhenua County v Nash (No 2) n7.
25 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733. The issue is also currently before the Supreme Court: Ellis v R [2020] NZSC 89.
[26] Ms Grey appeared for the Pascoes. However, she made submissions in support of Poutama’s application. In particular, she also submitted that for “a very special reason [,] justice requires that the judgment be recalled”.26 Ms Grey says this is the final opportunity to allow Poutama to have some input into the roading project and that was a special reason to allow the recall.
[27] Ms Grey pointed out that a special reason was found to exist in the decision in Saxmere.27 That case involved recall following the corrections of factual material, which the Court had relied upon in its earlier judgment. These corrections were significant. The Supreme Court therefore recalled its earlier decision saying that there were “special reasons that justice required the judgment be recalled”. This is a different situation. In essence, Poutama seeks to relitigate the findings of the Environment Court as to cultural matters.
[28]I do not consider there is a special reason justifying recall here.
Conclusion
[29] I do not consider any of the grounds advanced by Poutama have been made out as grounds for taking the “serious step” of a recall. This is a case where the judgment must stand for better or worse subject to appeal.28
[30]The application for recall is dismissed.
Costs
[31] Waka Kotahi indicated that it would seek costs on a category 2B basis with an uplift of 50 per cent if the application was declined. It said the recall application was an attempt to relitigate matters and Poutama had failed to act reasonably in bringing it. The total it seeks is $8,424.75 based on a cost calculation in a schedule attached to its submissions.
26 Horowhenua County v Nash (No 2), above n 7, at 633.
27 Saxmere Company Ltd & Ors v Wool Board Disestablishment Company Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [19].
28 Horowhenua County v Nash (No 2), above n 7, at 633.
[32]Ngāti Tama indicated that it did not seek costs.
[33] The appellants have five days from the date of this judgment to file a memoranda on costs. Waka Kotahi have a further three days to file any reply.
Grice J
Solicitors:
Sue Grey Lawyer, Nelson for Appellants
Simpson Grierson, Wellington for the First and Second Respondents Buddle Findlay, Wellington for Third Respondent
Atkins Holm Majurey, Auckland for Te Rūnanga o Ngāti Tama Trust
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