Raikes v Hastings District Council
[2022] NZHC 3075
•23 November 2022
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2021-441-000061
[2022] NZHC 3075
Under Section 299 of the Resource Management Act 1991 In the matter of
An appeal against a decision of the
Environment Court of an appeal under clause 14(1) of the first schedule to the Resource Management Act 1991
BETWEEN
PETER AND CAROLINE RAIKES
Appellant
AND
HASTINGS DISTRICT COUNCIL
Respondent
AND
MAUNGAHARURU-TANGITŪ TRUST
Interested Party
Hearing: Submissions: 15-16 August 2022
9 September 2022 & 29 September 2022
Appearances:
L J Blomfield for Appellant A J Davidson for Respondent
K M Anderson and M J Dicken for Interested Party
Judgment:
23 November 2022
JUDGMENT OF GRICE J
RAIKES v HASTINGS DISTRICT COUNCIL [2022] NZHC 3075 [23 November 2022]
Contents
Introduction[1]
Background to this appeal[6]
Background[12]
District plans under the RMA[12]
The Proposed District Plan[15]
First Environment Court appeal [19]
High Court Decision on the Interim Decision[23]
The Environment Court Revised Decision on appeal[24]
Grounds of appeal[50]
Submissions and material filed by the appellants following the hearing[51]
Positions of the parties[55]
Appellants’ submissions[55]
Respondent’s submissions[60]
MTT’s submissions[62]
Appeal on question of law [68]
Statutory framework for Plan appeals[76] The Environment Court’s determination of the site as a wāhi taonga[81] The Environment Court’s approach to cultural evidence[82]
The Environment Court’s application of relevant law and case law in its assessment of the cultural evidence[103]
Extent of the site[128]
Religious beliefs[136]
Reasons[143]
Factual errors by the Environment Court [147]
Conclusion[157]
Costs[159]
Introduction
[1] This is an appeal against a decision of the Environment Court1 to recognise an area of land as a wāhi taonga or “site of significance” under the Proposed Hastings District Plan (the Proposed Plan). Mr and Mrs Raikes submit that the cultural evidence in relation to the site, part of which is located on their farm, Titiokura Station (the Station), was insufficient, and the Environment Court failed to robustly test the evidence which was given by witnesses called by the Maungaharuru-Tangitū Trust (MTT). In addition, the appellants say, the evidence included unsubstantiated cultural beliefs and myths which do not accord with their own religious beliefs.
[2] The relevant site comprises some 70 hectares known as Tītī-a-Okura, or Tītīokura Saddle, named site MTT88 in the Proposed Plan. Section 16.1 of the Proposed Plan identifies and protects listed wāhi taonga sites from the effects of certain land use activities. It is proposed the MTT88 site will be listed in the Proposed Plan as a wāhi taonga with specific rules applying to the area which restrict activities on the land beyond the restrictions that would usually apply to rural land.
[3] The MTT88 site covers a total area of 70 hectares. Approximately 16.22 hectares of this is located in part of 470 hectares owned by Mr Peter Raikes and Mrs Caroline Raikes. The MTT88 site also covers an adjoining area of land which at the time of the hearing Mr and Mrs Raikes leased and ran as part of the Station. Mr and Mrs Raikes have since bought that adjoining block of land, which amounts to 326 hectares. The MTT88 site also runs across two other properties which are not the subject of this appeal. It is not entirely clear how much of site MTT88 is included in the Station, but it is common ground that it would amount at the very most to approximately 8.45 per cent of Mr and Mrs Raikes presently-held land.2
[4] Mr and Mrs Raikes say the Environment Court made a number of errors in its Revised Decision. In particular, Mr and Mrs Raikes say the Environment Court made errors in its assessment and in relying on the cultural evidence adduced at the hearing,
1 Maungaharuru-Tangitū Trust v Hastings District Council [2021] NZEnvC 98 [the Revised Decision].
2 At [77]. It is common ground that the Environment Court made an error stating that site MTT88 comprised about 2 per cent of the total farm area, as it failed to account for the proportion of the site which covered part of the adjoining land. I refer to this in more detail below.
as well as failing to take into account their own beliefs. In addition, Mr and Mrs Raikes say that even if it were appropriate to recognise the site as an area of cultural significance, the evidence did not justify recognition of the site to the extent of the area approved on its land. Mr and Mrs Raikes say in this respect that particular cultural activities pointed to, namely tītī (mutton bird) hunting and a historical trail through the saddle, happened within defined areas mainly along the present State Highway (the old Napier–Taupō road) which adjoins Mr and Mrs Raikes’ property. They say the evidence relating to any larger area was based on myth and legend which could not be properly substantiated. Mr and Mrs Raikes say that as a result of these errors on the part of the Environment Court, the Revised Decision should be set aside and this Court substitute its own determination.
[5] The provisions of the rules contained in Section 16.1 are not the subject of appeal.
Background to this appeal
[6] The Revised Decision followed an interim decision released by the Environment Court on 28 May 2018 (the Interim Decision).3 The Revised Decision followed the matter having been remitted following successful appeal to the High Court brought by both parties against the earlier Interim Decision of the Environment Court.4 The parties had agreed that the appeal should be allowed and the matter should be sent back to the Environment Court for further consideration.5
[7] The earlier appeal which led to the Revised Decision involved eight sites categorised as wāhi taonga, all of which were the subject of the determination in the Revised Decision.6 The only subject of this appeal, however, is the MTT88 site insofar as it affects Mr and Mrs Raikes’ property.
3 Maungaharuru-Tangitū Trust v Hastings District Council [2018] NZEnvC 79 [the Interim Decision].
4 Maungaharuru-Tangitū Trust v Hastings District Council [2019] NZHC 2576 [the High Court Decision].
5 At [9]. This refers to consent memoranda dated 9 September 2019 and 11 September 2019, which set out the basis upon which the parties had agreed that the appeal should be allowed and the proceedings remitted back to the Environment Court.
6 The Revised Decision, above n 1, at [5].
[8] This appeal is also only concerned with the categorisation of the MTT88 site as a wāhi taonga in the Proposed Plan and its extent. The appeal does not extend to the rules which would apply to MTT88 if it were categorised as a wāhi taonga as determined by the Environment Court. Neither does the appeal extend to any other part of the Proposed Plan, including Section 17.1, relating to landscape and outstanding natural features (a section which I understand is now operative), Section 5.2, relating to Rural Zone Land (which includes the land on which MTT88 is located), or Section 27.1 (which relates to earth works mineral aggregate and hydrocarbon extraction). Therefore, any proposed activities on MTT88 would be subject to those sections, and any restrictions applied under those. However, if MTT88 is included in the Proposed Plan as a wāhi taonga it will also be subject to Section 16.1.7
[9] The Hastings District Council (the Council) is the named respondent, in its capacity as the territorial authority responsible for preparing the Plan. It takes a neutral position in relation to this appeal. Ms Davidson for the Council helpfully compiled a number of documents, including the Revised Decision’s version of Section 16.1, the cultural provisions of the Proposed Plan with tracked changes recording agreed changes and the rules approved by the Environment Court in both its Interim and Revised Decisions. If MTT88 is confirmed as being wāhi taonga it will be listed as a “Part 4” site and the rules which will apply to MTT88 will be those that refer to Part 4 sites. The documents provided by the Council following the hearing also included a summary of the applicable objectives and policies from the Hawke’s Bay Regional Policy Statement and the Hastings District Plan that were addressed in the planning evidence before the Environment Court as well as a table summarising the rules which would apply to the proposed activities within site MTT88 both under the cultural section, Section 16.1 and other sections of the Hastings District Plan.8
7 Memorandum of counsel providing documents for Court’s assistance, 16 August 2022, prepared and filed with the agreement of all parties at Attachment C, headed “Activities on Site MTT88 if listed as Wāhi Taonga as regulated by Section 16.1 and other sections of the Proposed District Plan”.
8 Memorandum of counsel providing documents for Court’s assistance, dated 16 August 2022, prepared and filed with the agreement of all parties.
[10] Maungaharuru-Tangitū Trust (MTT) represents a collective of hapū in northern Hawke’s Bay, including Ngāi Tauira, Ngāti Marangatūhetaua (also known as Ngāti Tū), Ngāti Kurumōkihi, Ngāi Te Ruruku ki Tangoio, Ngāti Whakaari and Ngāi Tahu (collectively, the Hapū). MTT is a post-settlement governance entity, established to hold and manage the assets of the Hapū received under settlements of te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty) and to be a representative body for the Hapū. There are approximately 6,000 members registered with MTT.
[11] The traditional area of the Hapū extends from north of the Waikari River to the Waitaha Stream, southwards to Keteketerau. It stretches from Maungaharuru in the west to the coast and beyond Tangitū (the sea) in the east. The history of the Hapū is recorded in a report of Te Rōpū Whakamana i te Tiriti o Waitangi | the Waitangi Tribunal, The Mohaka ki Ahuriri Report.9 As the Waitangi Tribunal ultimately found in their report, the Crown breached the Treaty on many occasions. As a result of the historic actions or inactions of the Crown, the Hapū have suffered the loss of virtually all of their lands and the degradation of their taonga, maunga, places of significance, lakes, rivers and coast.10
Background
District plans under the RMA
[12] Under s 73(1) of the Resource Management Act 1991 (the RMA), there must be at all times one district plan for each district. Section 79(1) provides that the district plan must be reviewed every 10 years.
[13] Under s 74(1)(b), a district plan must be prepared in accordance with the provisions of pt 2 of the RMA. Part 2 includes four sections. Section 5 provides that the purpose of the RMA is “to promote the sustainable management of natural and physical resources.” Section 6(e) is of particular relevance to this proceeding. It provides:
6 Matters of national importance
9 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Mohaka ki Ahuriri Report (Wai 201, 2004).
10 As the Environment Court also referred to at [38] of the Revised Decision.
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
…
(e) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga:
[14] Such persons also, under s 7, “shall have particular regard to—(a) kaitiakitanga” and, under s 8, “shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).”
The Proposed District Plan
[15] The previous Hastings District Plan was made operative in 2003. In line with the requirements under s 79(1), the Council notified the Proposed Plan now at issue in November 2013.
[16] The Council says the Proposed Plan achieves s 6(e) in part through Section 16.1 and Appendix 50. Section 16.1 is headed “Wāhi Taonga District Wide Activity”. It sets out various provisions including objectives and policies, rules, performance standards and assessment criteria against which applications for consent are assessed. Appendix 50 lists a series of “Wāhi Taonga” sites, which the Plan defines as:
… a site or area of significance to tangata whenua and includes but is not limited to:
·Old pa sites, excavations and middens (pa tawhito)
·Old burial grounds and caves (ana tupapaku)
·Current cemeteries (urupa)
·Battlefields (wāhi pakanga)
·Sacred rocks, trees or springs (toka tapu, rakau tapu and waipuna tapu)
·Watercourses, springs, swamps, lakes and their edges (awa, waipuna, repo, roto)
[17] Under Rule SLD22 of the Plan, subdivision of land containing a wāhi taonga requires discretionary activity consent. Where a land use is proposed within a wāhi taonga area, Section 16.1 of the Plan applies. In essence, where land contains a wāhi taonga, there are certain extra requirements that have to be satisfied before subdivision and certain land uses are permitted. Section 16.1 applies district-wide regardless of, and in addition to, any underlying zone rules.
[18] When the Proposed Plan was first notified in November 2013, Appendix 50 included 57 sites. None of these sites were on land owned by Mr and Mrs Raikes. MTT then made a submission seeking that an additional 61 sites be included. One of those sites was identified as MTT88-Titī-a-Okura. MTT88 extends over 70 hectares covering four titles, including, as I have described above, one 470-hectare title owned by Mr and Mrs Raikes, to the extent of approximately 16.22 hectares, and to an extent which is unclear into 326-hectares which was leased by Mr and Mrs Raikes at the time of the Environment Court hearing.
First Environment Court appeal
[19] On 21 October 2015, MTT appealed the Council’s decision on Section 16.1 to reject as wāhi taonga (either in whole or in part) 29 sites, including MTT88. MTT cross-appealed and challenged the appropriateness of the rules put in place to protect the listed sites.
[20] MTT and the Council went to mediation, which resulted in agreed changes to Section 16.1 and the inclusion of 21 more sites in Appendix 50. When the matter was heard by the Environment Court in March and April 2018, eight sites remained contested, including MTT88. The parties agreed that if the Court confirmed these as wāhi taonga, they should be separately listed in Appendix 50 as a “Part 4”, on the basis that (with one exception) they were much larger sites, ranging from 44 to 506 hectares, so should be subject to different rules to those applying to the smaller sites.11
[21] By the time of the hearing, the Council and MTT had agreed that all of the unresolved sites, including MTT88, had cultural significance and met the definition of
11 There was one smaller unresolved site seven hectares in size.
wāhi taonga in the Plan and should be listed as wāhi taonga in Appendix 50. The only issue between them was which rules should apply to these “Part 4” sites. The Council submitted to the Environment Court that as they (generally) affected a greater area of private land, a more permissive approach should be taken for them than smaller sites where the wāhi taonga in question was smaller and so the added restrictions could largely be avoided by landowners.
[22] The Environment Court in its May 2018 Interim Decision determined that all eight sites at issue were wāhi taonga and determined the rules to apply to those sites.12 While the Court found that MTT88 was a wāhi taonga site, it held the level of protection and control sought by MTT88 overreached what was needed to provide for MTT’s relationship with Titī-a-Okura and would impose an unreasonable interference with the rights of the landowners.13
High Court Decision on the Interim Decision
[23] Both Mr and Mrs Raikes and MTT88 appealed the Interim Decision to the High Court. In allowing the appeal and remitting the matter back for determination, the High Court noted the matter came before it in unusual circumstances, as the parties to the Environment Court decision had agreed the High Court appeal should be allowed and the matter remitted to the Environment Court for reconsideration.14 In that decision Cooke J said:
[64] The key difficulty with the Environment Court’s conclusions is that the Court appears to have proceeded straight to a question of balancing the rights and interests of the private landowners and tāngata whenua without clearly identifying the precise nature of the wāhi tapu/wāhi taonga interest, the potential adverse effect of particular activities, and how the proposed provisions of the District Plan address this. The reasoning has a conclusory character, and accordingly it is potentially arbitrary. The circumstances called for a more precise analysis. For those reasons, and the additional reasons identified above, the appeals are allowed.
12 The Interim Decision, above n 3.
13 At [63].
14 The High Court Decision, above n 4, at [63].
The Environment Court Revised Decision on appeal
[24] The Environment Court reviewed its decision in light of the High Court’s comments.15 No further evidence was adduced, nor was there any further hearing, but the parties were invited to file further legal submissions. The Court heard submissions only relying on the evidence from the earlier hearing.
[25] The Environment Court in its Revised Decision summarised the High Court’s directions as follows:16
[2]In summary, the High Court said:
· The issue was whether the level of proposed protection under the Proposed District Plan was appropriate for the particular sites;
· What was required was for the reasons set out in the written decision of this Court to demonstrate that the analysis required as a matter of law had been undertaken;
· It was necessary for this Court to first make what are effectively factual findings on the nature of the wāhi taonga/wāhi tapu status of the particular sites. Importantly, the issues are inherently site specific. Because it includes questions of historical associations with the relevant areas of land there is the potential for uncertainty in relation to the facts. But this Court must do its best based on the evidence that is available. There may not need to be definitive findings on all matters of detail. A degree of uncertainty in this Court’s factual findings in relation to the particular sites may be involved.
· The second related requirement is for this Court to assess, as precisely as possible, how the proposed provisions in the District Plan could potentially adversely affect the wāhi tapu/wāhi taonga sites as recognised by the factual findings.
· Given that, it is not appropriate for this Court to proceed straight to balancing interests without first engaging specifically with the potential impacts that activities contemplated or controlled by the proposed provisions will have on the wāhi tapu status found to exist. That will likely involve a consideration of particular activities, and the consequences of the proposed provisions.
· Whilst it is ultimately a matter for this Court, it seemed to the High Court that Policy 64 of the Regional Policy Statement may be of particular moment. It states that “Activities should not have any significant adverse effects on wāhi tapu, or tauranga waka”.
15 The Revised Decision, above n 1.
16 Footnotes omitted.
[3] The High Court said that the key difficulty with this Court’s conclusions is that it appears to have proceeded straight to a question of balancing the rights and interests of the private landowners and tāngata whenua without clearly identifying the precise nature of the wāhi tapu/wāhi taonga interest, the potential adverse effect of particular activities, and how the proposed provisions of the District Plan address this.
[4] We have reviewed the decision in the light of the High Court’s views, and the further submissions made to this Court after the matter was returned to it. Rather than riddle the new decision with cross-references to aspects of the first decision, we believe it will produce a more coherent document if, on relevant issues, we repeat the substance of the first decision, with, where appropriate, additions and modifications to take account of the High Court’s views and the further submissions received.
[26] The Environment Court made decisions in relation to all eight unresolved sites.17 The appellants’ appeal against the recognition of MTT88 is the only outstanding issue in the Proposed Plan.
[27] In its Revised Decision, the Environment Court noted the submission of MTT that Māori are specialists in the tikanga of their hapū or iwi and are best placed to assert their relationship with their ancestral lands, water, sites, wāhi tapu and other taonga.18
[28] The Court then traversed the relevant primary and secondary legislation to be considered, including the Coastal Policy Statement as well as the Regional Policy Statement for the Hawkes Bay region, both of which applied to certain or all of the sites in question.19 The Court noted the provisions of the District Plan, including relevantly Section 16.20 It said the two agreed Objectives of Section 16 “fundamental to the issues to be resolved” were:21
OBJECTIVE WT01 To recognise Wāhi Tapu and Wāhi Taonga sites and areas in the Hastings District as being of cultural significance to nga hapū through whakapapa and ensure their protection from damage, modification or destruction from land use activities.
17 The Revised Decision recognised a number of coastal sites as wāhi taonga which are not the subject of appeal. References to the New Zealand Coastal Policy Statement 2010 are not relevant to this appeal as the policy does not apply in relation to MTT88: see the Revised Decision, above n 1, at [13].
18 At [11], referring to SKP Inc v Auckland Council [2018] NZEnvC 89; and SKP Inc v Auckland Council [2019] NZHC 900.
19 At [13]–[15].
20 At [18].
21 At [19].
OBJECTIVE WT02 To promote the protection of Waahi Tapu and Waahi Taonga sites and areas in a way that accounts for the customary practices of ngā hapū.
[29] The Court also recorded two further settled provisions of the Proposed Plan which were relevant to consider the “efficient and effective ways of dealing with the present issues.”22 The first was Objective TW01:
TW01: The expectations and aspirations of Tangata Whenua with Mana Whenua are acknowledged when making decisions on subdivision, land use and development, and the management of natural and physical resources throughout the Hastings District.
[30]The Court recorded the explanation of this Objective TW01 was:23
The protection of sites of past Māori occupation and use for their cultural and archaeological values will be achieved by putting into place appropriate mechanisms for the Tangata Whenua to be involved in the identification and management of these sites. This also applies throughout the District to areas recognised as taonga or as a source of mahinga kai to the Tangata Whenua, particularly where ngā hapū whānui have the status of kaitiaki of these areas, features and resources.
[31]The second relevant provision was Policy WTP1, to:24
... identify, in consultation with Tāngata Whenua, land within the District which contains Wāhi Taonga.
[32] The Court considered the rules proposed and in general terms the effects the rules would have on those landowners who would be subject to them. It said that the permitted activities under the rules would be “significantly less burdensome” for any farming activity than had been the case in the notified and decision versions of the Proposed Plan.25 In relation to a restricted discretionary activity application, the focus would be “squarely” on the issues “to which the decision-maker’s discretion is solely confined.”26
[33] The Court narrated the relationship of the Hapū with the relevant sites as follows:
22 At [19] (emphasis in original).
23 At [19].
24 At [19].
25 At [20].
26 At [20].
[37] As noted above the MTT represents a collective of hapū. The whakapapa, from Io (the creator), down to the Māori pantheon of gods through to the eponymous or source tīpuna (ancestors) of the four hapū associated with MTT, is to be found in the evidence of Mr Bevan Taylor. These stories and whakapapa lay the basis for identifying the relationship of the MTT hapū and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga - see s 6(e).
[38] Prior to 2014, the MTT hapū were engaged in researching, presenting, negotiating and settling their Treaty claims against the Crown. During those proceedings, they contested the purchase by the Crown of several large blocks including the Arapaoanui block and the Moeangiangi block in 1859, and the confiscation of their remaining lands in 1867.27 MTT finally settled their claims, as recorded in their Deed of Settlement in May 2013, and the settlement was given effect by the Maungaharuru-Tangitū Hapū Claims Settlement Act 2014.
[39] The MTT hapū still see themselves as kaitiaki of all their ancestral lands, although they own only a remnant of them.28 Ms Tania Hopmans in her evidence addressed how they have attempted to exercise this kaitiakitanga responsibility in recent years before various fora, particularly the Environment Court.29 As a result of their experience they decided to engage with the Proposed District Plan process.30
[40] To engage in this manner, they undertook literature reviews, reviews of research reports, reviews of briefs of evidence from previous litigation, conducted site visits, engaged archaeologists, recorded kaumatua and oral historians, commissioned photographic and mapping projects, held wānanga and prepared information files for each site, and provided information to the Hastings District Council and land owners.31
[41] They contend, among other matters, that these 8 sites are of significance to them. The extent of the footprints of each site, they contend, must be viewed through their eyes, and with their values and beliefs in mind.32 Mr Taylor added to his written evidence that the mapping of the sites was set by reference to the natural features of the land, including rocks and streams etc, and bearing in mind the cultural history of the sites. He further claimed that they took into account impacts on landowners.
[42] Thus, their case relies upon the cultural evidence of kaumatua, such as Mr Taylor, the material presented at the Council hearing by the now deceased Mr Fred Reti, and the writings of Te Aturangi Anaru. Mr Pat Parsons also addresses the cultural and historical significance of the eight sites that are involved in this appeal.
27 Statement of Evidence of Tania Hopmans on behalf of Maungaharuru–Tangitū Trust (7 March 2017) [Statement of Evidence of Ms Hopmans] at [15].
28 At [17]–[21].
29 At [22]–[30].
30 At [35]–[36].
31 At [37].
32 At [38(a)].
[34] The Court then noted in general terms that the s 274 parties to the appeal, as owners of land on or near which the sites in question were situated, were “concerned that they may be affected in various ways by the plan provisions which could restrict, if not outright prevent, various activities on those sites.”33
[35] The Court discussed the cultural significance generally of the Maungaharuru range, of which MTT88 is a part. This background provides the context for the cultural importance and history of the site now in issue:
The Maungaharuru sites generally
[45] The name Maungaharuru is associated with the settlement of the area by those who arrived on the waka Takitimu. The commander of the waka was Tamatea-arikinui.34 He was accompanied by the high priest, or tohunga, Ruawharo and his brother Tūpai.
[46] According to J H Mitchell in the book Takitimu, Tūpai was granted the “guardianship of the gods of the heavens and of the whare-wānanga” (house of higher learning).35 Mitchell records that during the voyage of the waka, Tūpai was the kaitiaki of the sacred symbols of the gods onboard.36 One of these symbols was Papauma, the representation of birdlife.37 The record in Mr Reti’s material is that:38
… the tohunga Tūpai cast the staff [named] Papauma high into the air. It took flight and landed on the maunga at the summit of Tītī-a-Okura. Papauma embodied the mauri of birdlife. The maunga rumbled and roared on receiving this most sacred of taonga and the maunga was proliferated with birdlife. Hence the name, Maungaharuru (the mountain that rumbled and roared.)
[47] Mr Parsons added that the place where Papauma landed was known as Tauwharepapauma. This place is listed in a series of boundary names crossing the Tītīokura Saddle from the west.39 Mr Parsons noted that workmen at the Ohurakura mill in the 1940s recalled how prolific the birdlife was in the forest, and the belief of the Māori people that it was the result of the mauri (life force) planted by Tūpai.40 He concluded that the mountain range was of high spiritual significance.41
33 At [44].
34 Statement of Evidence of Patrick Parsons on behalf of Maungaharuru–Tangitū Trust (6 March 2017) [Statement of Evidence of Mr Parsons] at [39].
35 See discussion at [40].
36 See discussion at [41].
37 Statement of Evidence of Bevan Taylor on behalf of Maungaharuru–Tangitū Trust (6 March 2017) [Statement of Evidence of Mr Taylor] at [27].
38 At [27].
39 Statement of Rebuttal Evidence of Patrick Parsons on behalf of the applicant (30 June 2017) [Statement of Rebuttal Evidence of Mr Parsons] at [21].
40 Statement of Evidence of Mr Parsons, above n 34, at [42].
41 At [42].
[48] Mr Taylor advised that, to his people, the top of the mountain is sacred.42 Their reference to the mountain includes, from south to north – Te Waka, Tītī-a-Okura (often abbreviated to Tītīokura) Maungaharuru and the mountain peaks Ahu-o-te-Atua and Tarapōnui and Te Heru-a-Tūreia.43 MTT hapū reference all areas of the ridgeline as Maungaharuru.44
[49] The evidence given was that the mountain range is central to the MTT hapū identity and that it is constantly referenced by those on the paepae at Tangoio Marae down to the tamariki (children) at the kōhanga reo operated from that marae.45 Maungaharuru peaks and their environs “are integral to the distinct identity and mana of the people.” It is described as the “iconic, most sacred and spiritual maunga (mountain) of the Hapū.”46
[50] Thus the spiritual and cultural importance of the maunga to the hapū is depicted in their art on the marae, in their names, tribal proverbs and symbols, oral history and in their waiata.47 It is remembered as a major cultural and economic food gathering area epitomised by the whakatauākī (proverb) that encompasses their relationship with their ancestral lands and waters:48
Ka tuwhera a Maungaharuru, ka kati a Tangitū49 - ka tuwhera a Tangitū, ka kati a Maungaharuru.
When the season of Mangaharuru opens, the season of Tangitū closes
- when the season of Tangitū opens, the season of Maungaharuru closes.
[51] The hapū claim that they, with their neighbours, are the tāngata whenua of this region with ahi-kaa-roa (long occupation) making them the holders of mana whenua and kaitiaki over the eastern side of the mountain range to the sea.50 The mountain is a taonga, we were advised, with its own mauri.51
[52] As already noted, the Maungaharuru sites are in the high country to the north and south of what is now generally known as the Tītīokura Saddle, where SH5 (the Napier Taupo Road) crosses and then descends towards the Mohaka River bridge.
[36]In relation to the extent of the proposed wāhi taonga sites, the Court then noted:
[53] In the evidence in chief of Mr Taylor we were advised that the extent of the footprint for the four proposed waahi taonga sites were drawn by him
42 Statement of Evidence of Mr Taylor, above n 37, at [23].
43 At [28].
44 At [23] and Appendix 5 Statement of Association – Peaks of Maungaharuru Range at 30.
45 At [24].
46 At Appendix 5 Statement of Association – Peaks of Maungaharuru Range at 29.
47 At [26(b)–(d)] and Appendix 5 Statement of Association – Peaks of Maungaharuru Range at 29.
48 At [26(a)] and Appendix 5 Statement of Association – Peaks of Maungaharuru Range at 29–32.
49 Tangitū refers to the sea associated with the Hapū.
50 Statement of Evidence of Mr Taylor, above n 37, at [26(a)] and [30] and Appendix 5 Statement of Association – Peaks of Maungaharuru Range at 29–32.
51 At [26] and Appendix 5 Statement of Association – Peaks of Maungaharuru Range at 29–32.
and the late Fred Reti.52 During the presentation of his evidence he extended that group to include Pat Parsons and Tania Hopmans. Mr Taylor went on to advise that their intent was to capture the extent of the culturally significant features on the mountain range using natural features for mapping the sites …
[37] The Court discussed and reached its conclusions in relation to MTT88 as follows:53
Site MTT88 Tītī-a-Okura (70ha) Tītī-a-Okura Saddle
[63] Following the High Court appeal, all issues (whether the site is wāhi taonga, the extent of site, and the rules to apply) are still live. This is the only site where its identification as wāhi taonga remains in dispute.
[64] We first note the evidence of the Trust relating to this site. Mr Taylor advised in his evidence in Chief that the footprint of this site captures the saddle, including the ridgeline on either side of the saddle. He said that Tītī-a-Okura is sometimes used as the name of the whole mountain range. As noted, it was the evidence for the MTT that Tupai cast his staff, named Papauma, high into the air and it landed on the maunga at the summit of Tītī-a-Okura - and the mountain rumbled and roared and was filled with birdlife.
[65] The area was traditionally favoured for mutton bird hunting and is associated with a chief named Te Mapu, and his son Okura. As Okura grew, he was instructed on, and then became expert in, the skill of hunting these birds. According to Mr Parsons, Te Mapu and his son camped and caught mutton birds in this area and that is how the name Tītī-a-Okura (“the mutton birds of Okura”) was derived. The late Mr Fred Reti, in his submission to the Council hearing, noted that Te Mapu and Okura would light fires and the birds would be attracted to the light and become snared in the nets strung across their flight path. Mr Taylor agreed and added, during the presentation of his evidence, that the birds would fly south in the morning and back over the saddle in the evening.
[66] Mr Parsons, in rebuttal evidence, added that he was told by an elder (now deceased) that tītī “penetrated the interior by three well-defined flight paths to their nesting grounds.” Tītī-a-Okura was one of those flight paths. To catch the birds, nets were strung across the flight path and bon-fires were lit to attract the birds who would be snared in the nets. Under cross-examination he acknowledged that he did not identify this site as a waahi tapu in his book In the Shadow of the Waka and that he referred to a bird snaring site near Te Pohue.
[67] Tītī-a-Okura is also associated with the traditional route from the coast to the interior and, according to Mr Taylor, was the route used from Tangitū to Maungaharuru by his people. That route (or thereabouts) later became the old Taupō Coach Road and is now the pass where State Highway 5 crosses the Maungaharuru range.
52 At [31].
53 Footnotes omitted.
[38] Mr and Mrs Raikes had challenged the evidence put forward by MTT88 and the significance of the site to the Hapū. The Court said:
Positions of Other Parties
[70] We first note the position of the s274 parties who have a particular interest in this site. Mr Peter Raikes and his wife, Mrs Caroline Raikes, own Tītīokura Station, near Te Pohue.
[71] Mr Raikes goes on to critique the matters put forward by the Trust about the significance to Māori of Maungaharuru. He labels them as ... suspect and false in entirety. He explains that view by regarding traditional Maori lore and related stories and traditions - eg about Ranginui (the Sky Father) and Papatuanuku (the Earth Mother) as being contrary to the Holy Bible, which he believes to be divinely inspired ... and as being ... incontestably true and as coming from God’s own Word.
…
[73] In closing, Ms Blomfield, for Mr Raikes, submitted that none of the MTT witnesses could explain how the activities for which resource consents would be required would affect the hapū’s relationship with the proposed waahi taonga sites. While acknowledging that Mr Taylor referred to earth works and other activities affecting the mauri of all the maunga sites, thereby destroying the tapu and affecting their relationship with the sites, she submitted that this was stated “in passing” and was not part of his original evidence. Ms Blomfield also queried whether there had been any robust assessment by MTT of the reasonableness of imposing the level of regulation proposed over such large areas of land.
[74] Ms Blomfield further suggested that there were variations and inconsistencies in the manner the evidence was prioritised between Ms Tania Hopkins, Mr Parsons and Mr Taylor. She reiterated her client’s position that there was nothing special about the site as bird snaring was an everyday activity as was its use as a travel route. In terms of the story of Tūpai she contended the Court should accord appropriate weight to it being a myth.
[75] Mr Raikes proposes an area of land that would be made available to MTT to “share information about the history of the area and its significance to iwi” (he describes it as a parking bay where motorists can stop, stretch their legs and read about the area’s history). Alternatively, he says that site could be recognised as wāhi taonga site MTT88. MTT submits that the area has been chosen not because of its values, but because it is outside the area of proposed windfarm construction. MTT refers to the Raikes’ proposal as a “token gesture”. The Raikes dispute that.
[39]The Court then said, in a section headed “Discussion”:54
[76] We do not wish to be in any way disparaging of Mr Raikes’ personal beliefs and religious faith. He is as entitled to those beliefs as Māori are to theirs, and as are the adherents of any other religion or belief system. But
54 Emphasis in original.
Mr Raikes’ evidence rather misses the point of s6(e) of the RMA. What is to be recognised and provided for, as a matter of national importance, is … the relationship of Maori and their culture and traditions with their … waahi tapu and other taonga (emphasis added). What Māori regard as waahi tapu and other taonga is for them. What the law requires is the recognition of, and provision for, that relationship and neither this Court nor any other RMA decision-maker can dismiss s6 factors, simply because they may not share the beliefs of Māori, and their traditions and lore.
[40] The Court noted that MTT88 had a total area of approximately 70 hectares, approximately 16.22 hectares of which was on Mr and Mrs Raikes’s 470-hectare Station.55 Mr and Mrs Raikes leased an adjoining 326 hectares. The Court calculated that the extent of the site was approximately two per cent of the total farm area.56
[41] The Court noted the concerns of Mr and Mrs Raikes that if the site was subject to the Plan provisions proposed it would allow “only a very limited range of permitted activities, with other activities requiring resource consent as restricted discretionary activities.”57 The Court noted Mr Raikes regarded the proposed assessment criteria as “so broad that an applicant could have no certainty that a resource consent would be forthcoming.”58
[42]The Court said:
[78] Speaking of site MTT 88 in particular, Mr Raikes acknowledges that it may have been an area used by tangata whenua to capture Tītī (mutton birds) as they flew inland from the sea, but sees that as not, of itself, a factor giving the area unique or special significance, particularly as regards the size of the area sought to be protected … He says also that the significance of the site seems to have emerged only recently, he having been told by a representative of the Trust only 2.5 years ago that there were no sites of significance on the Station’s land …
[43] Ultimately, the Court accepted MTT’s position that MTT88 should be recognised as a wāhi taonga site and listed in Part 4 of Appendix 50.59 The Court said:
55 The Revised Decision, above n 1, at [77].
56 At [77]. The Court’s calculation appears to have been reached by taking the 16.22 hectares of the site as a proportion of the total land owned or leased by the Raikes at the time (796 hectares). All parties now accept this calculation was made in error, as it failed to account for the proportion of the site on the part of the station which was on land that was leased.
57 At [77] (emphasis in original).
58 At [77].
59 At [79] and [81].
[79] We agree that to the MTT hapū the significance of the site is: its location on the ridgeline of the maunga, which is tapu; its shared value between the MTT hapū and Ngāti Hineuru through their common ancestor Okura; its value as a tītī or mutton bird food gathering area, tītī are a taonga bird species; and its value as a strategic trail (coastal to inland mountains) and link to Ngāti Hineuru. The somewhat recent awareness of, or at least the bringing to wider notice of, the value of the area to Māori is not something we regard as lessening credibility or accuracy. Rather it is, we accept, the product of the Trust’s recently acquired ability, because of the settlement of its Treaty claims, to research, record and present its history and positions to fora such as this Court.
[44] The Court turned to the rules that should apply to MTT88 as a wāhi taonga. It noted the evidence of Mr Raikes regarding the potential effects on his farming operation if MTT’s proposed rules were adopted.60 The site was used as part of the station for sheep and cattle grazing. Although Mr Raikes did not see a present need for new fencing or farm tracks in the MTT88 site, he noted the possibility that the land may need to be drained, which would require a resource consent for earthworks, and he suggested that future development on the site might include a mini hydro dam on the station, and possibly a wind turbine.61
[45] While acknowledging that resource consents for those activities which he suggested might be options for the site would be required in any event, Mr Raikes nevertheless saw the requirements of gaining consent if the site were subject to Section 16.1 as “significant challenges for a would-be developer.”62
[46]The Environment Court concluded:
[81] Weighing all these matters up we consider that the site is a waahi taonga site but that the evidence suggests that the level of protection and control sought by the Council are sufficient to provide for MTT’s relationship with Tītīokura and that their draft rules would be an unreasonable interference with the rights of the land owners. The site is already quite dominated by the State Highway, and its designation as such effectively prevents any other development on the site which would be likely to further interfere with its values as a waahi taonga. In short, we accept the position of MTT and the Council as being appropriate to recognise the significance of the site, without unreasonably restricting other activities. It follows that we do not accept the Raikes’ position.
60 At [80].
61 At [80]. In submissions at the appeal hearing counsel for the appellants indicated that Mr and Mrs Raikes were contemplating the profits of such development might go to support charitable purposes aligned with their Christian beliefs.
62 At [80] (emphasis in original).
[47] The appellants do not challenge the Environment Court’s decision to adopt the rules for the site. This appeal is limited to the determination by the Environment Court that MTT88 was a wāhi taonga site and, in the event that the determination is upheld, that the area of the site should be limited to focal points for particular activities which had been established as occurring in the area, such as the tītī or mutton bird snaring and the path used by the Hapū for the trail over the saddle.
[48] The Revised Decision dealt not only with Tītīokura Saddle but also generally with the area and specifically with a number of other sites in the Maungaharuru range. A number of more general comments made by the Court in this respect are also relevant to the assessment of a site as wāhi taonga. As the Court noted:63
[84] As noted above, in its further submissions following the HC appeal, MTT submits that the differentiation of wāhi taonga sites based on their size, rather than their values, is neither a logical, nor robust, planning approach. MTT submits that wāhi taonga are not limited to a single site or area or ‘highest points’ or ‘central or focal points’. It submits that wāhi taonga need to be viewed holistically, as a whole, and in context. Just as the Court would not identify just the focal or central point of an outstanding natural landscape, it is submitted that just identifying the focal or central point of a wāhi taonga is not appropriate.
[49] When discussing the rights of landowners in relation to the Maungaharuru Peak sites (MTT90 and MTT91) the Court also noted that, in relation to the Council rules, they would not unreasonably restrict: 64
… realistic uses of the land in question. It needs to be borne in mind, in considering that issue, that the Rules not [sic] create an absolute ban on any activity: - it will always be possible to seek resource consent if some possible activity appears over the horizon that is outside the limits of the Rules.
Grounds of appeal
[50] The Amended Notice of Appeal filed by the appellant raises seven questions of law:
(a)Question 1: Did the Court fail to consider and properly apply relevant law and case law about the critical assessment a decision-maker should
63 In the course of a discussion concerning sites MTT90 and MTT91 Maungaharuru Peaks – Tarapōnui and Ahu-o-te-Atua (footnotes omitted).
64 At [105].
apply to evidence given by a party asserting a relationship with a site that should be recognised and provided for under section 6(e)?
(b)Question 2: Did the Court err in its consideration and application of section 13 of the Bill of Rights Act 1990?
(c)Question 3: Was the reasoning provided by the Court insufficient to explain how the Court came to its conclusion at paragraph [76] (that what Maori regard as waahi tapu and other taonga is for them)?65
(d)Question 4: Was the reasoning provided by the Court insufficient to explain how the Court came to its conclusions at paragraph [79]?66
(e)Question 5: Did the Court take into account a matter which it should not have taken into account when it considered the proportion of the total farm area owned or leased by the appellants affected by proposed Site 88?
(f)Question 6: Was the Court’s calculation of that proportion correct?
(g)Question 7: Was the reasoning provided by the Court insufficient to explain how the Court came to its conclusions at paragraph [81] on the extent and boundary of proposed Site MTT 88?67
Submissions and material filed by the appellants following the hearing
[51] Following the hearing, at my request the parties by consent provided some information concerning the relevant plans, policies and rules.
65 Paragraph [76] of the Revised Decision refers to s 6(e) of the RMA, which deals with the relationship of Māori and their culture and traditions with wahi tapu and other taonga.
66 Paragraph [79] of the Revised Decision is a summary of the cultural issues, the cultural significance of the site to the MTT hapū and its evidence which the Environment Court says it accepts.
67 Paragraph [81] of the Revised Decision refers to the site being already “quite dominated by the State Highway, and its designation as such effectively prevents any other development on the site which would be likely to further interfere with its values as a Wāhi Taonga.” The Court went on to accept the position of MTT and the Council as being appropriate to “recognise the significance of the site, without unreasonably restricting other activities.” It indicated it did not accept Mr and Mrs Raikes’s position.
[52] Separately from this, however, the appellants also filed a further memorandum on 9 September 2022. It included Attachments A, B and C, being photographs and sketch plans, and Attachment E, which included new submissions on the part of the appellants.68
[53] I had the benefit of full written and oral submissions from the appellants. It is inappropriate for me to accept the filing of further submissions which appear merely to expand on the arguments made at the hearing. The other parties have had no chance to respond, nor was leave granted for the filing of these further submissions.
[54] Accordingly, I do not take the additional attachments and further submissions annexed to the appellants’ memorandum of 9 September 2022 into account.
Positions of the parties
Appellants’ submissions
[55] Mr and Mrs Raikes submit that the Environment Court cannot divest itself of its judicial functions to determine whether an area is wāhi taonga simply because Māori claim it is culturally significant to them. They say the Court could not uncritically accept assertions made by witnesses for MTT but had to determine whether the evidence probatively established the existence of a wāhi taonga site and the extent of its boundaries.
[56] The appellants say the Environment Court failed to critically evaluate the evidence put before it by the parties. In so doing, the Environment Court failed to apply relevant case law. This meant the Raikes’ evidence was dismissed or discounted as immaterial to the case.
[57] The appellants also say the Environment Court erred in that it did not separately consider the extent of the wāhi taonga site or the evidence from MTT about how the boundary for that site had been drawn. The appellants say the circumstances here, recalling the words of Cooke J in the High Court Decision, “called for a more
68 Attachment D comprised the full Notes of Evidence from the Environment Court hearing.
precise analysis”.69 In addition, they say the Environment Court “jumped” a step and, having concluded there was sufficient evidence to establish a wāhi taonga in the vicinity, “jumped” directly to consider which rules should apply to the site. This, Mr and Mrs Raikes say, renders the Environment Court’s ultimate conclusions “questionable”.
[58] The appellants submit that the Revised Decision still contains insufficient reasoning to enable them, as landowners affected by the decision, to understand why that decision was made and whether it is lawful. They say:70
If unwanted controls are to be placed on [their] land, based on others’ beliefs, that decision should be made in a careful and considered fashion after a proper assessment of all of the evidence, and in a manner consistent with NZBORA.
[59] Mr and Mrs Raikes say the Environment Court made material errors of law in its Revised Decision. They submit that this Court should allow the appeal and set aside the decision of the Environment Court that the 70-hectare site MTT88 is wāhi taonga. Their “strong preference” is that this Court substitute its own decision rather than remitting the matter back to the Environment Court. The appellants say the case has been remitted back to the Environment Court once already, and the direction from the High Court to provide reasons demonstrating that a proper analysis was taken was not followed in the Revised Decision now on appeal.
Respondent’s submissions
[60] The Council, in its capacity as the territorial authority responsible for preparing the Plan, takes a neutral position in relation to whether any of the errors of law alleged have been made out.
[61] However, although it is neutral as to the Court’s conclusion on this point, if the Court finds there were material errors of law made, the Council supports the appellants’ position that the High Court should substitute its own decision rather than remit the case for rehearing in the Environment Court. This is said to be in the interests
69 The High Court Decision, above n 4, at [64].
70 Submissions for the Appellants, 25 March 2022, at [70].
of bringing some finality to this matter and allowing the Plan to become fully operative as soon as possible.
MTT’s submissions
[62] MTT, as an interested party, submits that the alleged errors of law cannot be supported and that the Revised Decision should stand.
[63] The Trust says the Court recorded and properly assessed the cultural evidence. This was sufficient to enable the finding that the site was wāhi taonga. MTT says an appeal to the High Court on a matter of law does not present an opportunity for reconsidering the weight to be given to evidence, unless the conclusion reached by the Environment Court was clearly insupportable, which the Trust says it was not.
[64] In relation to s 13 of the New Zealand Bill of Rights Act (the NZBORA), MTT emphasises the importance of s 6(e) of the RMA (providing for the relationship of Māori and their culture and traditions) and argues the Canadian case law relied on by the appellants on this aspect is not on point.
[65] MTT says while the Court was not required to give more detailed reasons, nor refer to and analyse all of the cases cited by the parties, in any case the Court undertook a proper analysis, included a clear summary of the relevant evidence of both MTT and of Mr and Mrs Raikes, and applied the appropriate legal principles.
[66] MTT accepts the Court made an error in its calculation of the proportion of the Raikes’ land over which the site extends, but says the Court did not rely on this calculation, nor was it material to the decisions it made. MTT says it is the relationships the Hapū have with the site that should determine the extent of wāhi taonga, not what may be convenient or acceptable to private landowners. The size of the site merely reflects the area subject to those relationships.
[67] Finally, MTT says that even if this Court finds the errors of law alleged to be made out, they were not material to the Court’s ultimate determination. This is because the evidence did clearly support a finding that MTT88 is a wāhi taonga to the Hapū.
Appeal on question of law
[68] Under s 299 of the RMA, a party may appeal from Te Kōti Taiao | the Environment Court to Te Kōti Matua | the High Court on a question of law.71
[69] Te Kōti Mana Nui | the Supreme Court summarised what amounts to a question of law for appeal purposes in Bryson v Three Foot Six Ltd,72 which has since been applied in an RMA context.73 There will be an error of law where the Court:
(a)applied a wrong legal test;74
(b)reached a factual finding that was “so insupportable – so clearly untenable – as to amount to an error of law”;75
(c)came to a conclusion that it could not reasonably have reached on the evidence before it;76
(d)took into account irrelevant matters;77 or
(e)failed to take into account matters that it should have considered.78
[70] An appeal on a question of law is not a general appeal and it is not the role of a Court on appeal on a question of law “to undertake a broad reappraisal of the [lower tribunal or Court’s] factual finding or the exercise of its evaluative judgments.”79 The onus is on the appellant to establish an error of law.80 The error of law must be a
71 The High Court recently retierated the principles relevant to an appeal under s 299 in Speargrass Holdings Ltd v Van Brandenburg [2021] NZHC 3391 at [110]–[116].
72 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[27], confirmed in
Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153.
73 Estate Homes Ltd v Waitakere City Council [2006] 2 NZLR 619 (CA) at [198].
74 Bryson v Three Foot Six Ltd, above n 72, at [24].
75 At [26].
76 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.
77 May v May (1982) 1 NZFLR 165 (CA) at 170.
78 At 170.
79 Chorus v Commerce Commission [2014] NZCA 440 at [112].
80 Smith v Takapuna City Council (1988) 13 NZTPA 156 (HC) at 159; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159 at [30]; and Speargrass Holdings Ltd v Van Brandenburg, above n 71, at [116].
material error which impacts the final result reached by the Environment Court before the High Court will grant relief.81
[71] It must generally be the want of evidence rather than the weight of evidence that will support a ground of appeal based on factual errors said to constitute an error of law.82 The weight the Environment Court chooses to give relevant evidence is a matter for it. That evaluation should not be reconsidered as a question of law and the merits of the case dressed up as an error of law will not be considered. Planning and resource management policies are matters that will not be considered by the appellate court.83
[72] That is not to say that a question about facts in the evidence or inferences in conclusions drawn from them by the decision-maker may not sometimes amount to a question of law. A mere allegation of a lack of factual basis or incorrect or inappropriate inferences or conclusions will not turn an issue of fact into a question of law.84
[73] When determining planning questions, deference to expertise where appropriate must be accorded to the Environment Court as a specialist court and the expert tribunal.85 The Environment Court’s decision will often depend on “planning, logic and experience, and not necessarily evidence”.86 In Guardians of Paku Bay Association Inc v Waikato Regional Council, the High Court noted that no question of law arose from the expression by the Environment Court of its view on a matter of opinion within its specialist expertise, and that the weight to be attached to the particular planning policy will generally be for the Environment Court.87 As the Court said in Countdown Properties (Northlands) Ltd v Dunedin City Council, the Environment Court “should be given some latitude in reaching findings of fact within
81 Speargrass Holdings Ltd v Van Brandenburg, above n 71, at [115]; and see Hutt City Council v Mico Wakefield [1995] NZRMA 169; and Royal Forest and Bird Protection of New Zealand Inc v WA Habgood Ltd (1987) 12 NZTPA 76 (HC) at 81–82.
82 Moriarty v North Shore City Council [1994] NZRMA 433 (HC) at 437; and Poutama Kaitiaki Charitable Trust v Taranaki Regional Council, above n 80, at [37].
83 Poutama Charitable Trust v Taranaki Regional Council, above n 80, at [39].
84 At [34], citing Marris v Ministry of Works and Development [1987] 1 NZLR 125 (HC) at 127.
85 At [42].86 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at [33].
87 At [33].
its areas of expertise”.88 And in Moriarty v North Shore City Council, the Court held that the weight to be afforded to relevant considerations is a question for the Environment Court.89
[74] The High Court has indicated the appeal provision under s 299 “indicates a decision by the legislature to leave the factual decision making to the Environment Court and for that decision making to not be revisited on an appeal.”90 This is because of the specialist nature of the Environment Court and its members with expertise in particular disciplines.91
(e)The extent of the site:
I deal with this in more detail below. The evidence supported the whole of the recognised MTT88 site as wāhi taonga, not just the line of the State Highway or some smaller area.
Extent of the site
[128] Mr and Mrs Raikes said that the historic strategic trail followed the route of the present State Highway, and therefore that any recognition of the area as wāhi taonga should be limited to the State Highway. Ms Blomfield pointed out that Ms Lucas, under cross-examination, had confirmed that there was seasonal occupation of the area only. Ms Blomfield submitted on that basis that seasonal occupation by people was not a matter for which MTT claimed wāhi taonga status for the MTT88 site.
181 At [78].
[129] There is no reason why seasonal occupation only by the people means the area should not be recognised as a wāhi taonga. Moreover, the issue of being only seasonally occupied was a matter of evidence before the Environment Court along with all the other evidence. The Environment Court was entitled to put such weight on that evidence as it thought appropriate.
[130] Mr and Mrs Raikes also criticised the evidence of Ms Hopmans, in reference to the size of the site to be recognised as wāhi taonga, as not just the point at which the State Highway crossed but other features including the ridgeline, this being based on viewing the maunga as well as the name of the saddle. She said that had been arrived at through discussions with kaumātua. Again, that evidence was before the Court and it chose to accept the evidence of Ms Hopmans, along with the other evidence it had, rather than accepting the legal submissions of the appellants that the site should be narrowed to the travel route.
[131] Similar criticisms were made in relation to the tītī (mutton bird) hunting, the appellants pointing to the evidence of Mr Parsons, who identified the low pass in the mountain as the part that the tītī would have flown over and where they would have been captured. Again, the appellants submit this was located on the pass where the State Highway crosses the Maungaharuru range.
[132] The appellants therefore submitted that the wāhi taonga should be limited to those relatively small areas following the State Highway that had been identified for the tītī hunting and the trail. They criticised the evidence concerning the ridgeline being tapu and of the site’s shared value between the Hapū and Ngāti Hineuru through their common ancestor, as well as the evidence concerning the staff Papauma, as not being proven but based on myths and stories.
[133] However, Mr Taylor’s evidence was that the fact that the trail would have been aligned with the current State Highway did not mean that the wider area was not of cultural significance. In cross-examination, Mr Taylor said that Māori occupied the whole area, not just one part of it. This accords with common sense, that the occupation and related activities would be diffuse and not limited to a particular line.
[134]Ms Lucas also confirmed the site was “legible” from a landscape point of view.
[135] There was ample evidence before the Court to enable it to be satisfied that the extent of the MTT88 site as proposed was a wāhi taonga.
Religious beliefs
[136] Mr and Mrs Raikes say that the cultural and spiritual whakapapa and the “myths” relied upon to determine the site was wāhi taonga were merely the beliefs of the Hapū which cannot be substantiated. Mr and Mrs Raikes say their own Christian views were not properly taken into account by the Court.
[137] Mr and Mrs Raikes submit they should have been given the opportunity by the Court to expand on those views. In submissions on appeal Ms Blomfield said that Mr and Mrs Raikes were considering using profits from any enterprise on their land such as a mini hydro dam or a wind turbine to generate money for charities aligned with their Christian faith.
[138] Mr and Mrs Raikes also say that the Environment Court erred in its consideration of s 13 of the NZBORA, which provides for freedom of religion and belief. I have set out above at [39] the Court’s consideration of Mr and Mrs Raikes’ religious beliefs. The Court made it “very clear” that the Court was “not a place to resolve differences in view about deities and divinity”.182 However, the Court noted, with reference to s 13 of the NZBORA, that “Maori are as entitled to have their beliefs respected as Mr Raikes is entitled to have his”.183
[139] The Court then went on to refer to and quote the provisions of ss 6, 7(a) and 8 of the RMA, which it said contained “highly relevant requirements”.184 In doing so, as well as s 6(e), which has been a significant provision in this appeal, the Court also referred to the provisions in s 6 requiring the decision-maker to recognise and provide for (f) the protection of historic heritage from inappropriate subdivision, use, and development, and (g) the protection of protected customary rights.
182 At [72].
183 At [72].
184 At [72].
[140] The Court was not engaged in a jural determination as to cultural and religious beliefs per se. It was operating within the framework of the RMA which, as Whata J said in Ngāti Maru, requires the decision-maker to respond to claims and determine the appropriate course of action which will best discharge the statutory obligations of the decision-maker under that statute.185 While this is not a case of divergence of Māori cultural information, as there was no evidence contradicting that of the MTT witnesses, the proper approach is summarised in the following passage from that decision:186
… when exercising functions under the RMA, the Environment Court is necessarily engaged in a process of ascertainment of tikanga Māori in order to discharge express statutory duties to Māori. Thus, where an iwi claims that a particular resource management outcome is required to meet the statutory directions at ss 6(e), (g), 7(a) and 8 (or other obligations to Māori), resource management decision-makers must meaningfully respond to that claim. That duty to meaningfully respond still applies when different iwi make divergent claims as to what is required to meet those obligations, and this may mean a choice has to be made as to which of those courses of action best discharges the statutory duties under the RMA. As Te Ngai Hapu aptly illustrates, that may (for example) require evidential findings about who, on the facts of the particular case, are kaitiaki of a particular area and how their kaitiakitanga, in accordance with tikanga Māori, is to be provided for in the resource [management] outcome.
[141] The Christian views of Mr and Mrs Raikes are to be respected, as the Environment Court noted.187 However, in the context of the statutory framework here, they were simply not a factor to be taken into account in the determination required of the Environment Court when considering cultural issues under ss 6(e), 7(a) and 8 of the RMA. These requirements under the RMA recognise in this context, the “special regard to Māori interests and values”.188
[142] It is apparent that the Court only referred to s 13 of the NZBORA to make the point in passing that a right to have one’s beliefs respected is a fundamental right of all people under the NZBORA. That section was not engaged in the Environment Court’s assessment of the matter under consideration. The Environment Court quite
185 Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd, above n 146, at [68] and [102].
186 At [102].
187 The Revised Decision, above n 1, at [72] and [76].
188 McGuire v Hastings District Council, above n 168, at [21].
rightly put Mr and Mrs Raikes’ Christian beliefs to one side in making its determinations.
Reasons
[143] The final issue is whether the Court sufficiently articulated its reasoning as to accepting the cultural evidence of witnesses called by MTT.
[144] Baragwanath J in Murphy v Rodney District Council summarised the requirement for reasons to be provided by a decision-maker as follows:189
… the duty of a decision maker to give reasons … requires the decision maker to outline the intellectual route taken, which provides some protection against error. The reasons may be succinct; in some cases they will be evident without express reference.
[145] The duty to give reasons or to engage in a particular line of analysis is contextual. In this case the Environment Court set out the evidence relied upon, and the “intellectual route taken” to reach its conclusions is apparent. The Court was not required to spell out every item of evidence, nor to set out every argument made by the appellants.
[146] The appellants in fact are challenging the merits of the decision. However, it was for the Environment Court, having assessed the evidence, to put such weight on the evidence as it considered appropriate and to reach a determination. The Environment Court is responsible for the balancing process required under the statute, and the weight to be given on relevant considerations is a matter for that Court and not for reconsideration by this Court as a point of law.190
Factual errors by the Environment Court
[147] The appellants also contend that the Environment Court made two factual errors in its Revised Decision, which were material to the decision and therefore the decision should be set aside.
189 Murphy v Rodney District Council [2004] 3 NZLR 421 (HC) at [25]; and see Primeproperty Group Ltd v Wellington City Council [2022] NZHC 1282 at [9].
190 Speargrass Holdings Ltd v Van Brandenburg, above n 71, at [113], citing Guardians of Paku Bay Association Inc v Waikato Regional Council, above n 86.
[148] The first alleged factual error was the Court’s comment that the area of Mr and Mrs Raikes’ land affected by the MTT88 site was two per cent. It is now accepted this was an error and the percentage is in fact higher than the Court stated, although not higher than nine per cent of the Station. The Court had correctly noted that MTT88 had a total area of approximately 70 hectares, approximately 16.22 hectares of which was on Mr and Mrs Raikes’s station, noting the station is held in one 470-hectare title.191 In so stating, however, it is clear the Court neglected to account in its calculation for the adjacent land leased by Mr and Mrs Raikes, over which the proposed site MTT88 also lay. Therefore the proportion of land involved at the time that would be affected by the wāhi taonga classification was in fact a greater percentage than that stated by the Court.
[149] However, the Environment Court did not apparently rely on this calculation in its determination of either the classification of the site as wāhi taonga or its extent. The size of the wāhi taonga may have had some bearing on what the appropriate rules applying to the site were to be. Indeed, this appears clearly to have been the case in the Court’s determination of what rules should apply. However, as long as the wāhi taonga is established on the evidence, the proportion of the land owned or leased by Mr and Mrs Raikes that is to be included in the site has little relevance to the final determination of its status as wāhi taonga.
[150] The appellants also raise as a factual error the reference to Te Waka-a-Te O being within Tītī-a-Okura. It is accepted by counsel this too was an error.
[151] By way of explanation, Mr Taylor said in his evidence that another feature commemorating Te Okura, who was the skilled tītī hunter, and from whom the name Tītī-a-Okura was derived, is Te Waka-a-Te O, the canoe of Okura. Te Waka-a-Te O is part of the Maungahururu range but is, according to the evidence of Mr Taylor, located to the north of, and adjacent to, site MTT88.192 Mr Taylor goes on in his evidence to say that Titī-a-Okura (on which MTT88 is situated) had always been part of the main traditional route from the coast inland to the interior, which is now State Highway 5.193
191 The Revised Decision, above n 1, at [77].
192 At [38], which the Environment Court cited in its Revised Decision, above n 1, at [68].
193 At [38].
As Mr Taylor said, that was part of the reason Titī-a-Okura had been a significant, strategic location, and the Hapū had defended their interests in that land over many generations.194
[152]The error itself appears in the following comment in the Revised Decision:
[68] Mr Taylor also referred to an area within the site which is referred to as Te Waka-a-Te O or the “Waka of Okura.”195 Mr Taylor is a direct descendent of this ancestor,196 as was Mr Reti.197
[153] The Court’s error was to refer to the Te Waka-a-Te O being within MTT88 rather than adjacent to. However, the significance of the place name, as it referred to Okura, remains relevant. The point being made by the Court in the Revised Decision was that the Waka of Okura was in the area. It is an adjacent ridge. The mistake is not material to the decision reached.
[154] A further point raised by Mr and Mrs Raikes was the reference by the Court to the site being “already quite dominated by the State Highway, and its designation as [a wāhi taonga] effectively prevents any other development on the site which would be likely to further interfere with its value as a waahi taonga.”198
[155] The parties indicated that they were not certain of the meaning of this comment. It is not for this Court to speculate. Nevertheless, the point does not appear to have had any weight in the final assessment. The possible activities to which Mr Raikes had referred as possibilities for developments on the site were specifically dealt with by the Court and it was satisfied the requirements of the relevant rules for this site would not be unduly restrictive in the context of activities permitted on the site, and would be limited to cultural matters only. The reference to the State Highway was not material to the decision reached.
194 At [38].
195 Statement of Evidence of Mr Taylor, above n 37, at [38].
196 Statement of Rebuttal Evidence of Mr Parsons, above n 39, at [27].
197 Statement of Evidence of Mr Taylor, above n 37, at Appendix 4, Submission of Fred Reti dated 31 March 2015 to the Hastings District Council in relation to the District Plan at [36].
198 The Revised Decision, above n 1, at [81].
[156] I conclude under this head that while there were two particular mistakes as to factual matters in the Revised Decision of the Environment Court, these were not material to the decision.
Conclusion
[157]None of the grounds of appeal are made out. Accordingly, I dismiss the appeal.
[158] In summary, there were seven questions of law for determination in this appeal. I now summarise my conclusions in respect of each:
(a)Question 1: Did the Court fail to consider and properly apply relevant law and case law about the critical assessment a decision-maker should apply to evidence given by a party asserting a relationship with a site that should be recognised and provided for under section 6(e)?
No. While the Court did not refer to all the relevant case law cited by the appellants, it was not required to. The Court adopted the correct approach and summarised the main factors in support of its finding that the MTT88 site was a wāhi taonga.
(b)Question 2: Did the Court err in its consideration and application of section 13 of the New Zealand Bill of Rights Act 1990 (BORA)?
No. The Court noted the Christian views of Mr and Mrs Raikes were to be respected but that was not an issue under consideration. In the context of the statutory framework the Court was entitled to place weight on the evidence of the tangata whenua as to cultural issues. The Court only referred to s 13 of the NZBORA to make the point that the right to have one’s beliefs respected is a fundamental right of all people under the NZBORA, not as a reason supporting its determination of site MTT88 as a wāhi taonga, or as to its extent.
(c)Question 3: Was the reasoning provided by the Court insufficient to explain how the Court came to its conclusion at paragraph [76] (that what Maori regard as waahi tapu and other taonga is for them)?199
No. The Court set out the evidence it had heard from expert cultural witnesses and its conclusion at [76] was in line with the authorities and statutory framework. Its reasoning was sufficient in this regard.
(d)Question 4: Was the reasoning provided by the Court insufficient to explain how the Court came to its conclusions at paragraph [79]?200
No. The Court set out the evidence clearly and the “intellectual route taken” to reach its conclusions is apparent. The decision must be read as a whole. The Court’s findings were supported by the evidence before the Court.
(e)Question 5: Did the Court take into account a matter which it should not have taken into account when it considered the proportion of the total farm area owned or leased by the appellants affected by proposed Site 88?
While the Court made an error in calculating the proportion of the total farm area affected, this was not a matter which the Court materially relied on in reaching its conclusions as to the determination of the site as wāhi taonga, or its extent.
(f)Question 6: Was the Court’s calculation of that proportion correct?
No. However, the error was not material to the decision reached.
199 Paragraph [76] of the Revised Decision refers to s 6(e) of the RMA which deals with the relationship of Māori and their culture and traditions with wāhi tapu and other taonga.
200 Paragraph [79] of the Revised Decision is a summary of the cultural issues, the cultural significance of the site to the MTT hapū and its evidence which the Environment Court says it accepts.
(g)Question 7: Was the reasoning provided by the Court insufficient to explain how the Court came to its conclusions at paragraph [81] on the extent and boundary of proposed Site MTT 88?201
No. The Court was entitled to rely on the evidence as to the extent of the site to make its determination that the area as delineated by the kaumātua was appropriate in its extent.
Costs
[159] Counsel agreed at the end of the hearing that costs should follow the event on a 2B basis. I make directions accordingly. Orders for costs together with reasonable disbursements on that basis are made in favour of the respondent and interested party against the appellants. If any matters are outstanding, leave is reserved to any party to make submissions by way of memorandum on or before seven days from the date of this decision, with any response to be within a further three days.
Grice J
Solicitors:
Sainsbury Logan & Williams, Napier Matthew Eugene Casey QC, Auckland DLA Piper, Wellington
201 Paragraph [81] of the Revised Decision refers to the site being already “quite dominated by the State Highway, and its designation as such effectively prevents any other development on the site which would be likely to further interfere with its values as a Wāhi Taonga.” The Court went on to accept the position of MTT and the Council as being appropriate to “recognise the significance of the site, without unreasonably restricting other activities.” It indicated it did not accept Mr and Mrs Raikes’s position.
2
8
0