Raikes v Hastings District Council
[2023] NZCA 264
•29 June 2023 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA704/2022 [2023] NZCA 264 |
| BETWEEN | PETER RAIKES AND CAROLINE RAIKES |
| AND | HASTINGS DISTRICT COUNCIL |
| AND | MAUNGAHARURU-TANGITŪ TRUST |
| Court: | French and Goddard JJ |
Counsel: | J W Maassen for Applicants |
Judgment: | 29 June 2023 at 11.00 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal is declined.
BThe applicants must pay costs to each of the respondent and the interested party for a standard application on a band A basis, with usual disbursements.
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REASONS OF THE COURT
(Given by Goddard J)
The application for leave to bring a second appeal
The applicants, Mr and Mrs Raikes, seek leave to appeal against a decision of the High Court[1] determining an appeal on questions of law from the Environment Court.[2] The Environment Court decision concerned eight sites categorised as wāhi taonga in the proposed Hastings District Plan (Proposed Plan). The appeal to the High Court concerned only one of those sites, known as Tītī‑a‑Okura, insofar as that site affected land owned by the applicants. That site is referred to in the Proposed Plan as MTT88.
[1]Raikes v Hastings District Council [2022] NZHC 3075, (2022) 24 ELRNZ 598 [Second High Court judgment].
[2]Maungaharuru-Tangitū Trust v Hastings District Council [2021] NZEnvC 98 [Revised Environment Court decision].
The application for leave to appeal to this Court is opposed by the Hastings District Council, and by the Maungaharuru-Tangitū Trust (MTT), which appeared as an interested party in the High Court.
Background
MTT88 comprises approximately 70 hectares of rural land, part of which is owned by the applicants.
MTT88 was not originally identified as a wāhi taonga site in the Proposed Plan. MTT appealed to the Environment Court against the decision of the Hastings District Council not to include a number of sites on the list of wāhi taonga in the Proposed Plan, including MTT88. The Environment Court issued an interim decision on that appeal on 28 May 2018.[3] That interim decision was the subject of appeals to the High Court by both MTT and the applicants. Cooke J allowed the appeals and remitted the matter back to the Environment Court for determination.[4] The parties had agreed that the appeal should be allowed, and the matter sent back to the Environment Court for further consideration, as it was common ground that the interim decision had erred in law in a number of respects.[5] The Judge concurred: he considered that the Environment Court had not engaged in the required analysis for the purpose of reaching its conclusions.[6]
[3]Maungaharuru-Tangitū Trust v Hastings District Council [2018] NZEnvC 79.
[4]Maungaharuru-Tangitū Trust v Hastings District Council [2019] NZHC 2576 [First High Court judgment].
[5]At [1] and [63].
[6]At [63]–[65].
In July 2021 the Environment Court issued a revised decision, in which it held that site MTT88 should be identified as a wāhi taonga. The Environment Court considered that the level of protection and control over the site proposed by the Council was sufficient to provide for MTT’s relationship with the site. The more stringent draft rules proposed by MTT for this site would be an unreasonable interference with the rights of the landowners.[7]
[7]Revised Environment Court decision, above n 2, at [81].
The applicants appealed the revised decision to the High Court on a number of questions of law under s 299 of the Resource Management Act 1991 (RMA). They argued that the site should not have been identified as a wāhi taonga. They also argued that, in the event that determination was upheld, the extent of the site should be limited. They did not challenge the rules that would apply to the site if it was included in the list of wāhi taonga in the Proposed Plan.
The Council took a neutral stance on this appeal to the High Court. The appeal was opposed by MTT as an interested party. In November 2022 Grice J delivered the second High Court judgment, in which she dismissed the applicants’ appeal.
The test for grant of leave to bring a second appeal
The application for leave to appeal to this Court against the second High Court judgment is brought under s 308 of the RMA, which provides that appeals against decisions of the High Court determining appeals on questions of law are to be dealt with under subpt 8 of pt 6 of the Criminal Procedure Act 2011 (CPA) as if the High Court decision had been a first appeal on a question of law under s 300 of the CPA. Section 303(2) of the CPA, which applies to such appeals, provides that this Court must not give leave for a second appeal unless it is satisfied that:
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
A second appeal on a question of law must raise one or more questions of law that are capable of bona fide and serious argument.[8] The appeal must involve interests of sufficient importance to outweigh the cost and delay of a further appeal.[9]
Questions of law identified by the applicants
[8]Gertrude’s Saddlery Ltd v Arthurs Point Outstanding Natural Landscape Society Inc [2021] NZCA 398 at [19][20].
[9]Te Whare o Te Kaitiaka Ngahere Incorporated Society v West Coast Regional Council [2015] NZCA 356 at [23].
The applicants have framed the questions of law that they wish to pursue on appeal in a number of ways. In their submissions they say the relevant questions of law can be summarised as follows:
(a)Was the High Court correct in its interpretation and application of the provisions of pt 2 of the RMA, as relied on by MTT and the Environment Court?
(b)Was the High Court correct to conclude that the outcome and reasoning of the Environment Court’s decision met appropriate standards of rationality, considering the RMA scheme and requirements?
In short, the applicants intend to argue that it is not open to a council to impose controls on the use of private land by designating that land as a wāhi taonga, and providing for certain activities to be restricted discretionary activities, on the basis of:
(a)spiritual or metaphysical associations with the land; or
(b)historical use of the land by tangata whenua (in this case, as a trail and for seasonal hunting of tītī (mutton birds)), where those past activities have left no tangible artifacts or other physical traces on the land.
The applicants say that the spiritual and cultural values invoked as grounds for identifying MTT88 as wāhi taonga are “beyond reason, being metaphysical through cultural associations between places and gods or concerning mythical acts”.
The applicants describe the grounds referred to in [11(b)] as relating to “matters of cultural memory only”, which they say are not and cannot be part of the existing environment because they are purely historical.
The applicants also argue, in reliance on the first High Court judgment,[10] that the Environment Court did not perform the task it was directed to perform. They say the first High Court judgment required a “particularised analysis of the nexus and the method of rational assessment concerning [the applicants’] anticipated activities and effects on [the cultural values of the land]”. They identify this ground as both a question of law and as giving rise to a potential miscarriage of justice because, they say, the second High Court judgment failed to ensure that the earlier directions in the first High Court judgment were performed.
Discussion
[10]First High Court judgment, above n 4, at [42] and [47].
We agree that the question whether it is open to a council to identify land as a wāhi taonga, and impose controls designed to protect Māori cultural connections with that land, in the circumstances described at [11] above is a question of public or general importance. But we do not consider that this question is capable of bona fide and serious argument.
Section 6(e) of the RMA expressly refers to the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga. All decision-makers under the RMA are required to recognise and provide for that matter. Section 7 of the RMA requires decision-makers to have particular regard to (among other matters) kaitiakitanga. The spiritual element of kaitiakitanga has been recognised in decisions of this Court and of the Supreme Court.[11] Section 8 of the RMA requires decision-makers to take into account the principles of the Treaty of Waitangi | Te Tiriti o Waitangi. It is, we think, self‑evident that these provisions require decision-makers to have regard to, and provide for, connections between hapū and their ancestral lands of a cultural, spiritual and historic nature as well as other more tangible connections.
[11]Trans-Tasman ResourcesLtd v Taranaki-Whanganui Conservation Board [2020] NZCA 86, [2020] NZRMA 248 at [12(c)] and [172]–[174]; and Trans-Tasman Resources Ltd v Taranaki‑Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [160]–[161] per William Young and Ellen France JJ.
The applicants’ criticism of the rationality of the decisions of the Environment Court and High Court is misconceived. The question of whether tangata whenua have a cultural, traditional and/or spiritual connection to particular land that is sufficient to justify protection of that land in a district plan is a matter that can be established by evidence. A finding that cultural, traditional and/or spiritual connections exist does not involve any finding about the “correctness” of any spiritual or metaphysical beliefs relevant to those connections. The susceptibility of the “correctness” of such beliefs to determination on the basis of evidence is a red herring: it is the existence and significance of the beliefs that a court can, and must, consider. The courts below did precisely that in the present case. It is not the role of this Court on a second appeal to revisit the assessment of the evidence by the Environment Court and (so far as appropriate) the High Court.
Similarly, the existence of cultural and traditional connections based on historical uses of the land before that land was acquired by the Crown and sold to private owners can be established by evidence. It is not seriously arguable that the RMA permits a council to provide for protection of a site as wāhi taonga in a district plan on the basis of historical uses and their cultural and traditional significance if and only if there are tangible artifacts or other physical traces of those uses on the land.
We do not consider that there is any appearance of a potential miscarriage of justice: the second High Court judgment carefully analysed the Environment Court decision, and concluded that the Environment Court had carried out the more detailed analysis required by the first High Court judgment.
We accept the submission by the Council and by MTT that identification of the site as a wāhi taonga in the proposed plan does not prevent future development on the site, contrary to the applicants’ claim. The applicants will be required to seek resource consent for certain specified activities on the site: any application for consent will fall to be determined by reference to the provisions of the RMA and the Proposed Plan (when operative). To the extent that the proposed appeal seeks to challenge the restrictions on activities on the site contained in the Proposed Plan, we accept the submission of the Council and MTT that the proposed rules to apply to the site were not challenged in the courts below, so cannot be the subject of a (new) challenge on a second appeal to this Court.
The other criticisms advanced by the applicants of the Environment Court decision and the second High Court judgment do not raise any issues of public or general importance: they are specific to this case.
Result
The application for leave to appeal is declined.
The applicants must pay costs to each of the respondent and the interested party for a standard application on a band A basis, with usual disbursements.
Solicitors:
Sainsbury Logan and Williams, Napier for Applicants
Hastings District Council, Hastings for Respondent
DLA Piper, Wellington for Maungaharuru-Tangitū Trust
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