Ruahine v Bay of Plenty Regional Council

[2012] NZHC 2407

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-65 [2012] NZHC 2407

UNDER  Section 229 of the Resource Management

Act 1991

IN THE MATTER OF     an appeal against Environment Court

Decision No. [2011] EnvC 402

BETWEEN  NGATI RUAHINE Appellant

ANDBAY OF PLENTY REGIONAL COUNCIL First Respondent

ANDPORT OF TAURANGA LIMITED Second Respondent

ANDTE RUNANGA O NGAI TE RANGI IWI TRUST

First Third Party

ANDTHE ATTORNEY-GENERAL Second Third Party

Hearing:         22 and 23 August 2012 (Heard at Hamilton)

Appearances: P Kapua for the Appellant

J P Koning for Te Runanga o Ngai Te Rangi Iwi Trust (supporting
Appellant)
P H Cooney for Respondent
V J Hamm and M Paddison for Port of Tauranga Limited

P A McCarthy for the Attorney-General (Intervenor) Judgment:  18 September 2012

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on 18 September 2012 at 11 am pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date:………………………….

NGATI RUAHINE V BAY OF PLENTY REGIONAL COUNCIL HC TAU CIV-2012-470-65 [18 September

2012]

Contents

Paragraph

Introduction  1

Consents and cultural clash  7

Part 2 Resource Management Act 1991  14

In the Environment Court  15

Issue at the outset  17

The history  18

Cultural effects  19

Fisheries  21

The Court’s conclusions on cultural effects  23

Environment Court decision  24

Discussion of appeal issues  29

Analysis  61

Result  91

Introduction

[1]      Port of Tauranga Limited (PTL) is a public company which operates the Tauranga Port.   In terms of volume Tauranga is New Zealand’s largest port. Significant import and export cargos (particularly logs) are loaded off and on to vessels at the Port’s wharves.

[2]      Tauranga Harbour (Te Awanui) is large.   The inner harbour comprises a number of tidal estuaries.  Natural protection from the Pacific Ocean is afforded by both Matakana Island and Mt Maunganui (Mauao) with its small, densely developed isthmus.

[3]      The wharves, container storage, and warehouse facilities at the Port are concentrated on the harbour side of the isthmus.  The channel through which ocean- going vessels enter the harbour and port is narrow.   To enter, ships must sail an approximate north-south course.   The channel is bounded on the west side by Panepane Point, a promontory of Matakana Island, and Mauao on the eastern side. Having passed through this outer channel ships turn approximately south-east, entering Cutter Channel and the Maunganui Roads where the wharves are situated.

[4]      Although the huge volumes of water attributable to the tidal ebbs and flows of the enclosed harbour undoubtedly would have created a significant channel between  Panepane  Point  and  Mauao,  in  recent  times  that  channel  has  been augmented by dredging.

[5]      The Port and channel, as I have described them, have coped with a steadily increasing volume of shipping over the last three decades.   International trade and the use of New Zealand ports has changed significantly in half a century.  Ships no longer anchor in a stream awaiting a berth at a wharf and then coming alongside where their holds are unloaded in a leisurely fashion using slings and cranes.  Instead large container ships, piled with cargo containers on their super-structures, visit a port for a few hours.  Their containers are unloaded or loaded with straddling cranes.

The imports and exports vital for New Zealand’s economy and standard of living sit inside the containers.1

[6]      Large container ships and bulk log carriers thus visit and leave the Port of Tauranga.  So too, in recent years, do cruise ships in the summer months.  The sight of large vessels passing through the narrow channel I have described is undoubtedly an exciting spectacle.   The size of the vessels involved, coupled with traditional navigation and sailing hazards of wind and tide bring accompanying risk. Undoubtedly a high degree of skill is required by the Port’s pilots.

Consents and cultural clash

[7]      With an eye to the future, and being aware that in approximately 10 years time the size of container vessels visiting New Zealand ports will have increased, PTL sought various consents under the Resource Management Act 1991 (the Act) and relevant Rules of the Bay of Plenty Regional Coastal Environment Plan.   For statutory reasons, which I need not detail, the relevant jurisdiction included making recommendations to the Minister of Conservation.

[8]      The consent applications made by PTL involved:

(a)       Deepening, by some 3.3 metres, the Port’s entrance channel.   This deepening included part of the Tanea Shelf.2

(b)      Widening the channel at a certain point by removing 32 metres of

Tanea Shelf.

(c)       Deepening the inner section of Cutter Channel and Mt Maunganui

Roads  by  3.1  metres  and  widening  those  channels  by  up  to  115 metres, varying at different points along the channel.

1 Ships designed to carry bulk logs and secondhand cars are notable exceptions to containerised shipping.

2 Tanea Shelf refers to the submarine rock or boulders lying, in the main, on the west side (ocean side)

of Mt Maunganui.

(d)Creating a defined turning basin (in which large ships could turn on arrival  or  departure  from  the  wharves)  adjacent  to  Sulphur  Point which would involve widening and deepening Stella Passage and a portion of the Otumoetai Channel to 16 metres.

[9]      There is no need for the purposes of this judgment to describe the precise position of Sulphur Point and Stella Passage.   The turning basin can generally be described as opposite the wharves or berths.

[10]     In general terms the sought consents permitted dredging, depositing dredged materials in the coastal marine area, disturbing the sea bed, discharging sediment, and depositing boulders (to create an artificial reef), and carrying out beach nourishment.

[11]     The consents thus entailed dredging and interference with the Tanea Shelf (being the submarine extension of Mauao).   They also involved some interference with pipi beds on the southern side of the inner channel and the area of the proposed turning  basin.    Some  channel  widening  just  off  Panepane  Point  was  involved. Finally, the channel itself ran through a mataitai or designated kaimoana customary fishing area (the Mataitai Reserve) established under the Fisheries (Kaimoana Customary Fisheries) Regulations 1998, authorised in turn by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

[12]     From an economic standpoint, and certainly when viewed through the lens of a port operator, the consents sought and the motivation behind them are understandable.  From a Maori standpoint, however, and seen through the lens of the cultural  and  historical  significance  of  the  tangata  whenua’s  environment,  the consents had huge adverse effects.

[13]     When PTL’s applications were before Commissioners the cultural aspects at the centre of this appeal were considered.   The Commissioners acknowledged the impact of the applications on tangata whenua.  Indeed they regarded the relationship between tangata whenua and the marine and coastal area as the key issue.   Their conclusion was that the consents sought would promote sustainable management

despite  the  fact  that  the  relationship  between  tangata  whenua,  Te  Awanui,  and Mauao was significantly affected.   It was from that conclusion that an appeal was made to the Environment Court.

Part 2 Resource Management Act 1991

[14]     Although to do so departs from the traditional structure of a judgment, I set out here the relevant provisions of Part 2 of the Act.   These were essential to the issues  with  which  the  Environment  Court  grappled.    They  are  also  central  to counsel’s submissions in this appeal. They point to the cultural clash to which I have referred in [12] between PTL’s consent applications and the interests of the tangata whenua.

5         Purpose

(1)       The purpose of this Act is to promote the sustainable management of natural and physical resources.

(2)      In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while—

(a)  sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b)   safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

(c)  avoiding, remedying, or mitigating any adverse effects of activities on the environment.

6         Matters of national importance

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:

...

(g)       the protection of protected customary rights

7         Other matters

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 have particular regard to—

(a)      kaitiakitanga:

...

8         Treaty of Waitangi

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 take  into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

In the Environment Court

[15]     The Environment Court was, in my judgment, particularly well equipped to grapple with the issues before it.  It was a court of four members.  It was presided over by Judge J A Smith.   Its second member was the Deputy Chief Maori Land Court Judge, Judge C Fox.    The other two members were Environment Commissioners A J  Sutherland  and  H  M  Beaumont,  who  had  engineering  and ecological expertise respectively.

[16]     I intend to replicate extensively, in this section of my judgment, relevant passages of the Environment Court’s judgment which was delivered on 21 December

2011.  I do this, not for reasons of sloth or disinclination to summarise.  Rather the passages demonstrate how alert the Court was to the cultural clash to which I have referred and the detailed sensitivity the Court had to the background.

Issue at the outset

[17]     At  the  outset  of  its  judgment  the  Court  expressed  the  cultural  issue confronting it thus:

[1]       How do we integrate the competing interests of the Port of Tauranga

... seeking to widen and deepen the entrance to its entry channel to accommodate   larger   ships,   while   recognising   and   providing   for   the

legitimate cultural concerns and relationship of relevant local iwi who have

an interest in Mauao (Mt Maunganui), Panepane Point on Matakana Island,

and the large pipi beds in and around the entrance to the wider harbour of

Tauranga Moana known as Te Awanui?

The history

[18]     The  Court  then  detailed  the  adverse  impact  on  Maori  cultural  values  of European use of the Tauranga Harbour, land confiscation, and Tauranga Port activities:

[14]     The  Tauranga  Harbour  has  been  a  source  of  unrest  for  many generations  of  Maori.    It  has  reached  the  point  now,  that  the Waitangi Tribunal (WAI 215) noted:

... The understandable result has been that some Tauranga Maori have become so frustrated that they themselves are no longer engaging with local authorities in the necessary spirit of good faith, and willingness to compromise, that must characterise the Treaty partnership.

[15]      This is not a result of a single event but a culmination of a number of events where the Waitangi Tribunal recently held that:

... it cannot be consistent with the principles of the Treaty to strip Maori of possession of their Taonga by 'tacit application of presumptions of English law of which Maori knew nothing'.

[16]      Tauranga was one of the first areas settled by Maori in New Zealand. Tauranga was blessed with a mild climate and a range of available resources, access to these resources ensured that Maori thrived in the area:

... The entire Tauranga district, estimated at 290,000 acres, was included in the confiscation proclamation of 1865. Of this area, the Crown retained a

50,000 acre area known as the 'confiscated block'. Though the land outside the 50,000 acre block was returned to Maori between 1865 and 1886, most of this land was quickly lost from Maori ownership as well. The Crown purchased some 90,000 acres within the district known as the Te Puna- Katikati block and a further area of 'returned land', estimated at 75,000 acres, was sold to the Crown or private purchasers. By 1886, Tauranga Maori retained only an estimated 75,000 acres of relatively poor quality land and this was no longer held under customary title.

...

... The land loss of Tauranga Maori in the late nineteenth century was considerable. Added to the effects of the raupatu, that loss forms a critical backdrop to understand the impact of Crown policies and practices in the century or so that followed.

... As a consequence of the Raupatu and its aftermath, Maori communities in the Tauranga area were confined to reserves on the coastline around Tauranga Moana; to a handful of blocks of land around the eastern end of the harbour and to some slightly larger blocks in the hill country running into the Kaimai ranges.

[17]      Maori therefore had to adapt and became reliant on the sea and rivers to sustain themselves in the area:

... During the early intercourse of Europeans with New Zealand, Tauranga became of much consequence as a port.

[18]     This was due to the location of Tauranga between Auckland and Wellington and the ability for a safe, all-weather, deep water berth to be utilised:

... by the 1880s, Maori and the Crown had assumed distinctly contrary positions as to who rightfully possessed and controlled the foreshore and seabed  -  positions  that  remain  today.  In  Tauranga,  these  differences emerged  over  the  question  of  who  possessed  and  controlled Tauranga Moana. In practice, the Crown settled this question by passing a series of Acts that vested authority in bodies entirely composed of Pakeha settlers. With these Acts, possession and authority over Tauranga Moana passed from Tauranga Maori, without consultation ... Their Harbour was under the direct jurisdiction of the Tauranga Harbour Board, and its  control was backed by the full authority of the Crown.   Henceforth, Tauranga Maori would struggle to assert their Treaty rights to participate in the management of the harbour before the Crown; the question of ownership was foreclosed.

Therefore,

... Tauranga Maori lost the great majority of their ancestral lands. Even so, they [did not and] have not lost their association with those many places and environments, which remain the source of their cultural identity.

... The development of the Port had several components; the construction of the Mount Maunganui deep-water wharf, the construction of the Sulphur Point  container  terminal,  the  dredging  of  shipping  channels,  and  the harbour bridge.

[19]      The drive to develop a deep-water international port within Tauranga Harbour gathered momentum in the mid-twentieth century as the region's economy boomed, especially the forestry industry.

[20]     From 1915, there was a burst of activity around the harbour. The government  was  at  the  forefront  of  this  activity,  but  withdrew  when  it became clear that dredging was pointless because the channel filled with silt as fast as it cleared. The Harbour Board took over, and in 1923, the Stella Passage was dredged and the Cutter Channel deepened.

[21]  In  1925,  the  Harbour  Board  received  government  approval  for  a concrete wharf to replace the Mount Maunganui railway wharf that had fallen into disrepair. During this time, there were several reclamations in the Sulphur Point area.

... The next round of major harbour works, starting in 1968 focused on Sulphur Point. The decision to reclaim land here was crucial; it created the twin port structure (Sulphur Point and Mount Maunganui) and dictated transport networks.

[22]     The actual development of the Port was extraordinarily rapid. The Government was to design and construct the port, and pass control over to the Tauranga Harbour Board after the initial phases were completed. An official's committee called for the work to be declared in the national interest

so  that  construction  could  be  accelerated.  The   fast  tracking  of  the construction may have contributed to potential adverse effects being overlooked; this resulted in:

... Siltation caused by port construction, transport infrastructure, and agricultural development ... detrimentally affect[ing] the ecology of the harbour and its fisheries.

... Estuaries, rivers, streams, and wetlands at the harbour edge - all areas providing rich and easily accessible food supplies for Tauranga Maori – have been impacted ...,

most notably the once vibrant pipi beds.

[23]     These developments were recorded as being in the national interest but seemed to overlook Maoris' beliefs and as such:

... the port and airport developments resulted in much of their whareroa land being lost to public works, with only limited compensation - it is relevant to note here that the Crown in fact took more land than it needed and sold off the excess for considerable profit.

[24]      These  sales  did  little  to  strengthen  the  belief  that  the  land  was needed  for  the  national  interest  and  created  a  feeling  of  distrust  and animosity between iwi and the Port authorities, which is still evident today:

The expansion of Tauranga City to the east was done without consideration for the history of raupatu in the region: the eastern end of the harbour was precisely where much of the remaining Maori land was situated. Maori were not involved in key public works and planning decisions in Tauranga, and their interests and concerns were not protected. The result was that, from 1886 to 2006, at least 4961 acres of Maori land was taken for public works in Tauranga.

[25]     Reclamation  has  affected  more  than  the  Harbour  itself,  it  has impacted on the expression of Maori customs and beliefs as well, including their right to protect their lands.

[26]      Not only were the fertile lands that Maori had once possessed taken from them, but during the period from 1886-1991, Tauranga Harbour and other waterways were polluted by numerous discharges, including sewage and stormwater outfalls, septic tank seepage, urban runoff, rubbish tip seepage, agricultural runoff and industrial wastes. As a result bacterial contamination of rivers and streams was a serious problem in Tauranga by the mid-1990s.

[27]      Maori have always opposed such pollution as any harmful discharge into the harbour, or into the key waterways such as the Wairoa, is culturally unacceptable. This had a lasting effect on Tauranga Maori unable to sustain their traditional way of life, and unable to utilise their taonga as a base for economic development. Effectively:

Maori customary or aboriginal title to rivers and waterways in Tauranga has been displaced through a combination of the raupatu and the application of introduced law in New Zealand.

[28]      As is evident from the history of Tauranga, development of the Port is always going to create disagreement and resentment between parties and this appeal is not going to solve that. As the Waitangi Tribunal has stated:

... We note that Tauranga Maori retain ownership of ancestral lands with water frontage at numerous places around Tauranga Harbour. However, it is not our role to determine as a matter of law whether these lands include the foreshore or the seabed ...

This Court notes the Tribunal's finding that,

... in usurping ownership over Tauranga Moana and presuming to delegate ownership to other entities, the Crown has committed a number of Treaty breaches.

[29]     This Court cannot undo past wrongs but it can to a limited extent mitigate the damage caused through conditions that address cumulative effects.

[30]      The Waitangi Tribunal recommended that:

... Where the wider public also have a strong interest in taonga, as is the case  with the  harbour, significant waterways, and the  native forests of Kaimai Range, we recommend that the Crown explore possibilities for joint management between local government and Maori.

We are also concerned at the evidence of resource loss and environmental degradation, particularly in  relation to  the  harbour and  waterways. We therefore recommend that the Crown, in conjunction with the tangata whenua, investigate the possibilities for remedial action, and that the Crown contributes towards to the costs of any projects identified.

[31]     This should be the focus and main aspiration for the future running and development of the Port of Tauranga. We can see no reason in principle, why local government and the Port Company cannot partner in restoration projects. These benefit all users including tangata whenua.

Cultural effects

[19]     The Court, again eloquently and sensitively, set out and took note of the cultural landscape with which it was dealing, particularly the status of Mauao and Te Awanui, the harbour.   Other sites included the pipi beds and Panepane Point.   It detailed  the  evidence  it  had  heard  from  various  tangata  whenua  about  the longstanding and ongoing links they had with kaimoana areas:

[174]    Mauao also known as Maunganui, stands as a sentinel looking out over the Pacific ocean, Te Moana a Toi. We were told Mauao was a victim of unrequited love, so he asked to be pulled by the patupaiarehe (fairy people) during the  night  from the Hautere  forest  to  the sea  so  he  could  drown himself. At dawn he was caught by the sun before he could accomplish his task, thus the name Mauao which means caught by the dawn. He has since forever stood tall at the entrance of the harbour. Mr Awanuiarangi Black

explained that the ancient name Maunganui, was given by Tamateaarikinui of the Takitimu canoe. He named it after the ancient mountain in Hawaiki climbed by the God Tane on his quest in search of nga kete wananga (the ancient baskets of knowledge).

[175]   Mauao or Maunganui is associated with several ancestors from Hawaiki who undertook rituals and ceremonies or built alters (tuahu) on their arrival in this area so that settlement could take place. Thus it has historical importance and a deep cultural and spiritual significance which, we were advised, extends from the ocean floor (including Tanea Shelf) to its peak.

[176]    Te Awanui (big river) is the name of the channel or body of water that runs from the mouth of the Waimapu River to the base ofMauao. This was the traditional path that was created when Mauao was moved to the sea. The name is also used to refer to the entire Tauranga Harbour. Mr Charlie Tawhiao  stressed  that  Te  Awanui  is  important  in  terms  of  the  tribes' identities. According to him they discuss it as an identifier and as an integral part of their territory, inextricably linked to their health and welfare.

[177]    Mr  Hauata  Palmer,  a  kaumatua  of  Ngai  Te  Rangi,  advised  that Mauao is the sacred mountain for all tangata whenua of Tauranga Moana who are themselves linked by whakapapa (genealogy). It is, he claimed, the most sacred landmark in the Tauranga area and has significant historical value for us. In Mr Tuanau's opinion, it is the most sacrosanct place of all Tauranga Moana. Mr Morehu Ngatoko Rahipere noted the mountain holds much history and that there were battles fought on the mountain. Thus it is considered a waahi tapu. Mauao Historic Reserve and Mauao Recreation Reserve are registered waahi tapu on the New Zealand Historic Places Trust Register of Historic Places, Historic Areas, Waahi Tapu and Waahi Tapu Areas.

[178]   Te Awanui is considered a symbol of tribal identity, mana and rangatiratanga.  It  is  this  harbour  that  physically  links  all  the  tribes  of Tauranga to each other, as demonstrated to us through the production and translation by Mr Awanuiarangi Black of the waiata (song) Tu Mokemoke.

...

[183]    In practical terms the stretch of Te Awanui affected by the Port of Tauranga's application to dredge along the shipping channel was used, and continues to be used, as a customary harvesting area, as a waka route and as a place to·find rongoa (health remedies).

[184]    We were told that the kai of a region reflects the mana of the people of that region. Te Awanui was and remains a major food source for the Tauranga tribes, jealously guarded and protected. The previous abundance of the fishery in the harbour is well documented and an example from the evidence relates to Taiaho, another Ngai Te Rangi chief, who once said of Te Awanui, Kaore koe e mate kai ana, anei taku mara kai which when translated means, You will never be hungry for here is my food garden. The entire area surrounding Mauao has also been an important customary food gathering site.

[185]    Spiritually, Mauao and Te Awanui remain for the tribes, the passage way to Hawaiki. It is through these waters that the spirits of the dead leave on  the  outgoing  current,  past  Panepane  Point  on  the  southern  end  of Matakana Island, out into the Bay of Plenty, to Tuhua and then on to the ancient homeland - Hawaiki. Evidence of this pathway taken by the ancestral spirits of the appellants was provided by Reon Roger Tuanu and Mr Matiu Dickson through waiata and prose.

...

[190]    Ms Antoine Coffin referred to traditions associated with Panepane Point (or Te Panepane o Raumati). These traditions concern the beheading of Raumati who, according to her account, was responsible for the burning of the Te Arawa Waka. In seeking revenge, Hatupatu of Te Arawa with his brothers fought Raumati and his kin at the base of Mauao and overcame him after facing off towards Panepane Point. Mr Matiu Dickson referred to a waiata  that  commemorates  the  sacred  nature  of  this  site  and  likens  the sounds of the tides to the falling of tears for those buried there. Panepane, we were told by Ms Coffin, is still revered today by Matakana Islanders and descendents of Raumati living at Wairoa-Bethlehem.

[20]     Counsel were agreed that, so far as iwi in the region were concerned, the spiritual passage way to Hawaiiki was not (as is popularly believed to be) from Cape Reinga but instead across Te Awanui past Panepane Point and out into the Bay of Plenty to Tuhua (Mayor Island).

Fisheries

[21]     Turning to fisheries the Court noted:

[186]    The entire area known as Te Paritaha o Te Awanui and the Number 2

Reach of the shipping channel are considered an important spawning area and nursery for juvenile pipi.  The evidence was that from ancient times to

the present, it has been considered an important fishery for the tribes and

their identity and their way of life.  The pipi are considered a taonga species, with  evidence  that  the  appellants  consider  that  they  have  whakapapa

(genealogy) linking them directly to the environment, the sand, the sea and

to the pipi. Mr Olsen explained this Maori world view:

22       ... as a holistic framework in which all things both animate and inanimate are connected through a web of kinship.  Thus all things are deemed to have a life force/mauri.  It is the principle of mauri that determines environmental and cultural well-being, for Maori the protection of mauri (spiritual integrity) is paramount.

...

[189]    We also heard evidence that kina has been harvested at the entrance to the Harbour where the species is, we were told, abundant at around 20 feet down. Mr Graeme Borrell believes these beds of kina are the main breeding

stocks for that species. There was limited scientific evidence on this point, however. What we can be certain of is that mussels are collected at the entrance of the harbour and on rocks at the foot of Mauao along with kina, paua and koura.

...

[196]    The Te Awanui Tauranga Harbour Iwi Management Plan (2008) notes that kaimoana was gathered from these waters on a seasonal basis. The authors reflect on the use of Te Awanui as a fishery noting that seasonal harvesting was and remains a feature of the traditional and contemporary way of life of the tribes of Tauranga Moana. The evidence we heard was that people gathered and still gather kaimoana such as kina, koura (crayfish), paua, pipi, tuangi, papaka (crabs), kukuroa (horse mussels), titiko and they fished and continue to fish the species to be found in the harbour and its oceanic surrounds.

[197]    We received evidence demonstrating such use from ancient times, during the 20th Century and continuing into the present. In particular we note the report of Robert A. McClean, produced by Te Timatanga Neil Te Kani, recording the importance of these fisheries for sustaining Maori living in the area. In addition, the importance of Te Awanui as a fishery was addressed by several witnesses...

[198]    After referring to the continuing ability to gather kaimoana and to fish, nearly all the witnesses for the appellants complained about the impacts of urbanisation and port and industrial development on Te Awanui. These changes, aggravated by land use changes within the catchment, have led in their view to the degradation and diminishment of Te Awanui and its fisheries. There has also been a discernible decline in shell-fish and fish stocks, with a large number of witnesses concerned that the abundance of kaimoana previously associated with Tauranga Moana is no more.

[199]    A summary of how these adverse effects impact upon the appellants comes from the Te Awanui Tauranga Harbour Iwi Management Plan (2008) where  the  impacts  of  any destruction  of  cultural  sites  was  described  as follows:

5.1.1      Pressures on Significant Cultural Sites

Significant cultural sites form an integral part of Maori life. These areas can include kai gathering areas, mahinga mataitai, wahi tapu, wahi taonga and  wahi  tupuna.  They  give  Maori  reference  points  for  direction and growth and ensure stable cultural development. Removal or destruction of these sites are a major issue for whanau, hapu and iwi and threatens the integrity of our tribal identity and growth...

[22]     The Court was alert to local iwi being the kaitiaki of the marine areas of their rohe moana, and was also alert to the mataitai through which the harbour entrance channel passed:

[201]     As kaitiaki, the Tauranga Moana tribes aspire to co-manage their rohe moana (traditional sea domain). This area includes Te Awanui. We

were told that they attempt to do so in accordance with their tikanga underpinned by the values of manakitanga (hospitality), whakawhanaungatanga  (cause  to  establish  familial  relationships), whakapapa (genealogy) and aroha (love or respect). In giving expression to these values they have established or worked with the Ministry of Fisheries (now Ministry of Agriculture and Fisheries) to establish:

[a]       The Tauranga Moana Iwi Customary Fisheries Charitable Trust with two representatives from each of the three iwi and invited representatives, one representative from Tuhua and one from Te Puni Kokiri. The Trust was represented before us by the Chairman, Mr Penetaka Brian Dickson. The Trust aims to:

[i]      provide  for  the  education  of  fishing  and environmental management based on Maori cultural values;

[ii]      produce educational resource material on the Maori relationship with Papatuanuku and Tangaroa;

[iii]      promote research into Maori cultural and scientific tikanga; and

[iv]      educate  and  promote  the  culture  and  history  of Maori  customary  environmental  and  fisheries tikanga.

It provided a cultural impact assessment on the proposed channel deepening, widening and dredging.

[b]      Tangata kaitiaki positions appointed under the Fisheries (Kaimoana Customary Fishing) Regulations 1998 so as, we were told, to uphold the mana over their customary fishing rights and resources in their rohe moana. Tangata kaitiaki have   authority   to   grant   applications   for   customary harvesting; and

[c]       A   mataitai   under   the   Fisheries   (Kaimoana   Customary Fishing) Regulations 1998 was approved by Minister of Fisheries and is known as Te Maunga o Mauao Mataitai Reserve. A letter dated 25 August 2008 from the Minister declaring the establishment of the reserve was filed. In addition, notice of the establishment of the reserve was published in the New Zealand Gazette on 28 August 2008, effective from 25 September 2008. This was also produced for these proceedings by Mr Penetaka Brian Dickson, who aside from being the Chair of the Tauranga Moana Iwi Customary Fisheries Trust, is also Chair of the Te Maunga o Mauao Mataitai Reserve. According to Mr Dickson, the area was chosen because of its historical and traditional significance in providing sustenance to the tribes. The Reserve  covers  an  area  of  approximately  6  km  which includes the waters surrounding Mauao, Moturiki and Motuotau Islands and part of the Tauranga Harbour and thus

will be directly affected by the proposed consents. Commercial fishing is excluded from this area and recreational fishing restricted for certain species, such as mussels or kutae. The Reserve is an inshore area where, we were advised, paua, kina, kutae, pupu and koura can be gathered.  The  well  known  areas  are  Te  Paritaha  o  Te Awanui for pipi and tuangi and Mauao, Moturiki Island and Motuotau for kina, paua, kutae and koura.

The Court’s conclusions on cultural effects

[23]     The Court correctly and succinctly summarised the cultural evidence that it received and the concerns expressed as follows:

[228]    The undisputed evidence before the Court is that Mauao and Te Awanui and their surrounds are iconic lands and waters of great historic and cultural significance to the tribes of Tauranga Moana. We also understand that their relationship with these features including Te Paritaha o te Awanui, Panepane Point and Mauao including Tanea Shelf, is an ancestral and historical one that extends back to settling of Aotearoa by their ancestors from Hawaiki, and for Ngai Te Rangi after arriving in the Tauranga region from the East Coast.

[229]    We note that the appellants consider that Mauao and Te Awanui are indivisible and inextricably linked thus any effect on any aspect of these features, will affect the whole. From their perspective, there are cultural effects  that  flow  from  dredging,  deepening  and  widening  the  shipping channel that will impact on all of Tauranga Moana. Thus they have identified a number of cultural effects that relate to the entire harbour and its oceanic surrounds.

[230]   However, and based on all the evidence, we consider it is the appellants' concerns about the impacts of the dredging on those parts of Te Awanui relating to Te Paritaha o te Awanui, the ebb tide delta and Panepane Point, and Mauao  at Tanea  Shelf, including the  associated fisheries  and habitats that are directly relevant to the  appeals. We also  consider their concerns about the impacts on the management of customary fisheries by local tribal tangata kaitiaki and their management of Te Maunga o Mauao Mataitai Reserve established under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Fisheries (Kaimoana Customary Fishing) Regulations 1998.

[231]    The mataitai, Mr Koning submitted, has its own legal status as an expression  of  the  Crown's  continuing  treaty  obligations  [Environment Court’s emphasis] to Tauranga Moana iwi. We agree with this position and we  note  that  section  10  of  the  Treaty  of  Waitangi  (Fishing  Claims) Settlement Act 1992 and the Fisheries (Kaimoana Customary Fishing) Regulations 1998 record that the Crown agreed in 1992 to recognise and provide for customary food gathering and the special relationship between tangata whenua and places of importance for customary food gathering (including Tauranga ika and mahinga mataitai). It was established after the Minister  of  Fisheries  was  satisfied,  inter  alia,  that  there  was  a  special

relationship between tangata whenua and the proposed mataitai reserve. In addition he needed to be satisfied that the mataitai reserve was an identified traditional fishing ground and of a size appropriate to effective management by tangata whenua. The Mauao Mataitai Reserve is managed in practice by tangata kaitiaki, and no person may engage in commercial fishing in the reserve.

[232]    We consider that the law on mataitai reserves clearly reflects the interests of the Crown and Maori to provide for customary food gathering and  the  special  relationship   between  tangata  whenua  and  places  of customary  food  gathering  importance  such  as Te  Paritaha  o  te Awanui, Mauao, and the general area within the shipping channel captured within the boundary of  the reserve. Thus  we  reject  Ms  Hamm's  argument  that the reserve is predominantly about addressing the sustainability of the fishing resource in areas of significance to iwi for customary food gathering. Rather, the mataitai reserve was established to recognise and provide for the special relationship tangata whenua have with this area.

[233]    We conclude as much because of the emphasis in the legislation on the relationship with such places. Thus, the impact of the proposal to dredge, widen and deepen the channel on the mataitai reserve is directly relevant to our Part 2 analysis, and we consider that there will be significant adverse cultural effects on the exercise of the kaitiakitanga and rangatiratanga of the appellants as a result. These impacts we have provided for in our proposed conditions.

Environment Court decision

[24]     The Environment Court essentially upheld the Commissioners’ decision.  It recommended the Minister grant consent.   The consent was subject to various proposed draft conditions which do not, for the purposes of this appeal, need to be detailed.

[25]     Significantly  the  conditions  (which  had  been  the  subject  of  consultation between the parties) amended and modified the consent.  One such amendment was that alterations to Tanea Shelf should not proceed.  Notice of any alterations to the Shelf was to be delayed for at least five years with two further years set aside for discussion and consultation, peer review, and investigation.  Once works on Tanea Shelf began, PTL was to pay $250,000 (by five annual tranches of $50,000) to the trustees of the Mauao Reserve.

[26]     The conditions included the establishment of a new trust to mitigate adverse effects on cultural and spiritual values; “renourishment” of the beach adjacent to

Whareroa marae; the establishment of a tangata whenua Reference Group; and the establishment of a Te Awanui scholarship programme.

[27]     At an early stage of the hearing, the Environment Court had been critical of the various assumptions made by PTL and an inadequate degree of consultation with the tangata whenua.  A six month adjournment and consultation between the parties clearly improved matters.   Nonetheless the Court added the following under the heading “Final Comment”:

[313]    We cannot leave this case without commentary on the proposition that iwi and hapu had not engaged constructively in resolving this appeal.

[314]    We recognise the deep insult to the mana of some kaumatua from the way in which this application came to their notice.  This was clearly seen as hurtful and disrespecting of their rangatiratanga.   Seen from their perspective, it was yet another slap in the history of offence, rehearsed so recently before the Waitangi Tribunal.   The Port appears to have been oblivious to the effect and interpretation of their actions when applying for their consents.   The Port saw itself as being fair in delaying the Council hearing and attempting to consult.  We accept that by the end of the case the Port had a better understanding of how it should be forging a relationship with tangata whenua.

[315]    This case highlights to us the yawning chasm in cultural insight sometimes displayed by major infrastructural companies.  The Port should have a Cultural Liaison Officer, or such persons, on retainer.  This position would never have arisen if the Port had sought early cultural advice.   Mr Mikaere was retained after the Council decision and prior to the Court hearing.  That was far too late.

[316]    For   our   part   we   have   concluded   that   the   Regional   Coastal Environment Plan contemplates a major infrastructural applicant preparing and filing an application after extensive discussion with tangata whenua, and probably,  with  some  level  of  understanding  as  to  how  on-going  issues relating to Te Awanui should be addressed.   Some 20 years after the enactment of the Resource Management Act, it is surprising that an infrastructural company of the size of the Port would not have been aware of its obligations in terms of the Regional Coastal Environment Plan, the New Zealand Coastal Policy Statement 2010 and the Act.

[317]    During the course of this hearing, the Port has done a great deal to try and address this situation.  However, we feel obliged to note that further examples of applications made without proper approach and consideration of the requirements of the relevant national and regional documents could lead to refusals of applications for consent.

[318]    Put simply, a publicly listed company working in a highly sensitive area  identified  in  all  relevant  national  and  regional  documents,  cannot purport that it has no obligation to consider tangata whenua issues or consult with the relevant parties.  This is not the case of a small business having no

specific provisions and regional plans relating to it.   This is the case of a major infrastructural company which has been dealing with these issues constantly for the last 50 to 60 years since its inception, and prior to that, the Harbour  Board.    To  pretend  that  these  matters  are  not  being  addressed through the Waitangi Tribunal (and having repercussions to on-going operations), is not in our view a reasonable position to take.

[28]     The appellant challenges the Environment Court’s decision.

Discussion of appeal issues

[29]     An  appeal  to  this  Court  from  a  decision  of  the  Environment  Court  is governed by s 299 of the Act, which provides:

299      Appeal to High Court on question of law

(1)       A party to a proceeding before the Environment Court under this Act or any other enactment may appeal on a question of law to the High Court against any decision, report, or recommendation of the Environment Court made in the proceeding.

...

It is clearly established that, for an appeal to succeed, an error of law must be established which materially affected the Environment Court’s judgment.3    It is not sufficient  to  dress  up  factual  matters  or  conclusions  flowing  from  evaluative decisions as errors of law.4    Challenges to facts and evaluative conclusions cannot masquerade as errors of law.

[30]     The appellant’s amended notice of appeal specified the following errors of

law arising out of the Environment Court’s consents:

(a)      The Court failed properly to consider whether the consent conditions would adequately recognise and provide for the relationship between the appellant and Te Awanui and Mauao.

(b)      The Court made findings “contrary to the overwhelming weight of

cultural evidence” without providing reasons.

3 Countdown Properties (Northlands) Limited v Dunedin City Council (1994) 18 ELRNZ 150 (HC) at

157-158.

4 See The Friends of Pakiri Beach v Auckland Regional Council [2009] NZRMA 285 at [19] and [20].

(c)      The Court failed to have particular regard to the Mataitai Reserve (Te Maunga o Mauo Mataitai Reserve) as an expression of the Crown’s continuing Treaty obligations to the appellant.

[31]     Ms Kapua’s overarching submission for the appellant was that the Court’s conclusions and findings on the cultural effects of the consents went beyond what it reasonably could have found.   Section 5(2) set out the statute’s “sustainable management purpose”, which purpose specifically included provision for the cultural wellbeing of people and communities.  Cultural wellbeing should not be read down.

[32]     Furthermore s 6(e) prescribed the relationship of Maori, their culture and tradition with ancestral lands, water, and sites as a matter of national importance. Section 6(e), submitted counsel, was designed to emphasise the special nature of the relationship of Maori with the adversely affected environment.  This is applicable to the effect of the consents on Te Awanui, Mauao and the Mataitai Reserve.   The obligation of the Court under s 6, so far as a special relationship was concerned, was to “recognise and provide” for it.

[33]     Similar considerations apply to the appellant’s guardianship role and right of kaitiakitanga, defined in s 2.  Section 7(a) of the Act specifically provided that the Court must have particular regard to kaitiakitanga.  Although the Court had accepted the kaitiaki status of the appellant, it did not appropriately address and consider this in its decision.

[34]     Similarly, although acknowledging and referring to s 8, the Court had given insufficient weight to the principles of the Treaty which it had to “take into account”. Particularly was this the case in respect of the Mataitai Reserve.   The dredging would interfere to some extent with pipi beds.  A part of the Mataitai Reserve (albeit a small part) would be the recipient of discarded dredging material.  Significantly the Mataitai Reserve was the direct result of a Treaty settlement.   There was thus, consistent with Treaty principles, a heightened obligation to protect it.

[35]     Ms  Kaupua accepted the Court  was  obliged,  in  reaching its  decision,  to balance the matters specified in Part 2 of the Act.5    She referred to Lord Cooke’s speech in McGuire v Hastings District Council:6

[21]      Section 5(1) of the RMA declares that the purpose of the Act is to promote the sustainable management of natural and physical resources. But this does not mean that the Act is concerned only with economic considerations.  Far  from  that,  it  contains  many  provisions  about  the protection of the environment, social and cultural wellbeing, heritage sites, and similar matters. The Act has a single broad purpose. Nonetheless, in achieving it, all the authorities concerned are bound by certain requirements and these include particular sensitivity to Maori issues. By s 6, in achieving the purpose of the 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  various  matters  of national  importance,  including  “(e)  The  relationship  of  Maori  and  their culture and traditions with their ancestral lands, water, sites, waahi tapu [sacred places], and other taonga [treasures]”. By s 7 particular regard is to be had to a list of environmental factors, beginning with “(a) Kaitiakitanga [a defined term which may be summarised as guardianship of resources by the Maori people of the area]”. By s 8 the principles of the Treaty of Waitangi are to be taken into account. These are strong directions, to be borne in mind at every stage of the planning process. The Treaty of Waitangi guaranteed Maori  the  full,  exclusive  and  undisturbed  possession  of  their  lands  and estates, forests, fisheries and other properties which they desired to retain. While, as already mentioned, this cannot exclude compulsory acquisition (with proper compensation) for necessary public purposes, it and the other statutory provisions quoted do mean that special regard to Maori interests and values is required in such policy decisions as determining the routes of roads. Thus, for instance, Their Lordships think that if an alternative route not significantly affecting Maori land which the owners desire to retain were reasonably acceptable, even if not ideal, it would accord with the spirit of the legislation to prefer that route. So, too, if there were no pressing need for a new route to link with the motorway because other access was reasonably available.

[36]     Counsel  laid  emphasis on  Lord  Cooke’s  comment  that  Part  2  comprised

“strong directions, to be borne in mind at every stage of the planning process”.

[37]     Counsel further submitted the Court had erred by concluding that the regional and economic significance of widening and deepening the channel to the Port outweighed the adverse cultural effects which would flow.  Section 5(2)(c) obliged the Court to avoid adverse effects.  This the Court had failed to do.  Instead of using as its starting point that the Court could decline the consent applications and do

nothing, the Court had instead adopted the approach of “how to justify” the consents.

5 Supra [14].

6 McGuire v Hastings District Council [2002] 2 NZLR 577 (PC).

Importantly the Court’s  approach had ignored  the special status of the Mataitai Reserve as a Treaty settlement.  It had also ignored the special statutory recognition given to Mauao by the Mauao Historical Reserve Vesting Act 2008.

[38]     Finally, Ms Kapua challenged the weight given by the Court to PTL’s expert cultural witness, Mr Mikaere.  Counsel submitted Mr Mikaere should not have been regarded as an expert because he had no mandate to speak for the tangata whenua.

[39]     Mr Koning, who acted for Te Runanga O Ngai Te Rangi Iwi Trust supported the appellant’s submissions.7    He submitted, and there is no challenge to this, the Mataitai Reserve was the product of a Treaty settlement.  The Crown’s plans in 1986 to  introduce  a quota  management  system  to  regulate  commercial  fishing led  to litigation  instigated by Maori  iwi.   A partial  settlement  between  Maori  and  the Crown was achieved by the Maori Fisheries Act in 1989 which provided for 10 per cent of quota to be transferred to the Maori Fisheries Commission.  Fortuitously the

owners of Sealord Products Limited, which held a significant proportion of quota, decided to sell the company.   Further negotiations between the Crown and Maori, designed to discuss and settle outstanding claims and Treaty grievances relating to fisheries, led in turn to a September 1992 Deed of Settlement which is implemented by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

[40]    Pursuant to the settlement, the Fisheries (Kaimoana Customary Fishing) Regulations 1998 were promulgated under s 186 of the Fisheries Act 1996.  Section

186 empowered the Governor-General by Order in Council to make regulations:

Recognising and providing for customary food gathering by Maori and the special relationship between tangata whenua and those places which are of customary food gathering importance (including tauranga ika and mahinga mataitai) to the extent that such food gathering is neither commercial in any way nor for pecuniary gain or trade.

[41]     The regulations provide a process whereby tangata whenua can apply to the

Minister of Fisheries to establish customary food gathering areas and appointing tangita  kaitiaki/tiaki.    Tauranga  iwi  resolved  in  2002  to  make  the  appropriate

7 Te Runanga O Ngai Te Rangi Iwi Trust (TRONIT) was a s 301 party. Ngati Ruahine, the appellant, is a hapu of Ngai Te Ranginui. TRONIT was established in 2007 and represents 10 hapu of Ngai Te Rangi and is mandated to represent Ngai Te Rangi in Treaty settlements, Resource Management, and Fisheries issues.

application  to  the  Minister  of  Fisheries.    As  a  result  tangata  kaitiaki/tiaki  for Tauranga moana were established in October 2004.  The Mataitai Reserve, affected by PTL’s consents, was gazetted on 28 August 2008 and came into effect the next month.

[42]     Witnesses called by TRONIT in the Environment Court stated that PTL’s proposal to dredge through the Mataitai Reserve “devalues the fishing settlement and our Treaty rights”.  The fisheries settlement and Treaty rights would not have been respected if a resource consent was granted.

[43]     In essence, TRONIT’s position was that the Mataitai Reserve existed as the outcome of a statutory settlement of Ngai Te Rangi’s historic fisheries claims against the Crown.8

[44]     For  the  purposes  of  ss 6(e)  and  7,  Mr  Koning  submitted  there  was  a difference between a tauranga ika (fishing place) which had not been designated as a Mataitai Reserve, and the designated Mataitai Reserve itself.  Section 7 kaitiakitanga was highly relevant to both, but additionally the Mataitai Reserve had Treaty settlement status.

[45]     Mr Koning submitted the Environment Court failed to make a finding that the Mataitai Reserve was a product of a Treaty settlement between the Crown and the iwi of Tauranga Moana.  In so doing, the Court failed to recognise the importance of s 8 and had erred.

[46]     I do not accept that submission.  At [201][c] of its judgment,9  the Court set out the status of the Mataitai  Reserve under the 1998 regulations and  correctly identified  its  scope  and  significance  for  kaimoana.    And  at  [231]10   the  Court correctly recorded Mr Koning’s submission before it; referred to the 1992 settlement; agreed  with  counsel  that  the  Mataitai  Reserve  had  its  own  legal  status  as  an expression of the Crown’s continuing Treaty obligations; and rejected the submission

of PTL’s counsel that the Mataitai Reserve was predominantly an issue concerning

8 Professor Boast gave evidence to the Environment Court to that effect.

9 Supra [22].

10 Supra [23].

fishing sustainability.11   The Court did not make a “finding” of the type Mr Koning submitted it should, but in the circumstances I do not regard that as either significant or an error of law.   Clearly the Court was alert to the Mataitai Reserve and the circumstances surrounding its creation.

[47]     Mr Koning referred to the effects of dredging on the Mataitai Reserve, which would involve the removal of approximately 200 metres of the harbour to create the turning circle at the entrance to the Otumoetai Channel and the removal of a 100 metre strip also from Te Paritaha o Te Awanui for the inner channel.

[48]     Counsel considered that although the Court had referred to Treaty principles, there was no reference by it to any relevant case law.  Counsel cited the Court of Appeal’s judgment of New Zealand Maori Council v Attorney-General.12    He laid emphasis on the dictum of Cooke P to the effect that Treaty principles require Pakeha and Maori, as Treaty partners, to act towards each other reasonably and with the utmost good faith, that duty being infinitely more than a formality.13    He also emphasised a dictum of Richardson J (relevant to the Mataitai Reserve being the product of a Treaty settlement) to the effect that where there was focus on the role of Crown and Government conduct, emphasis on the honour of the Crown was important, the Treaty being a positive force in the life of the nation.14

[49]     All  counsel  referred  to  a  portion  of  the  Privy  Council’s  judgment  New

Zealand Maori Council v Attorney-General:15

Foremost among those “principles” are the obligations which the Crown undertook of protecting and preserving Maori Property including the Maori language as part of taonga, in return for being recognised as the legitimate government of the whole nation by Maori....  It is therefore accepted by both parties  that the  Crown  in carrying out its  obligations  is  not required in protecting taonga to go beyond taking such action as is reasonable in the prevailing circumstances.  While the obligation of the Crown is constant, the protective steps which it is reasonable for the Crown to take change depending on the situation which exists at any particular time.

11 At [232].

12 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641.
13 At 667.
14 At 682.

15 New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 at 517.

[50]     Thus, submitted Mr Koning, in the particular circumstances of PTL’s consent, the relevant Treaty principle to apply was that of the Crown’s duty actively to protect the Mataitai Reserve to the fullest possible extent.

[51]     Additionally Mr Koning submitted that the Court wrongly took into account the Treaty principle of mutual benefit and reciprocity.   That principle had no application in the current circumstances where the Crown had an ongoing statutory obligation to protect the Mataitai Reserve.

[52]     The grant of the consents would irreparably damage the Mataitai Reserve by permitting dredging and the dumping of dredged material.   Additionally boulders would be removed (a reference to the Tanea Shelf).  Mr Koning submitted to similar effect with regard to kaitiakitanga and s 7(a).

[53]     The  Attorney-General,  who  properly  sought  and  was  granted  leave  to intervene, made submissions in support of the Environment Court’s judgment. Because the Attorney-General was not involved in the Environment Court hearing, and particularly because cultural and Treaty concerns lie at the heart of this appeal, it is appropriate briefly to record the helpful submissions advanced by Mr McCarthy.

[54]     Mr McCarthy identified three Treaty principles from the authorities which had been cited.  The first was one of partnership.  The second principle was one of active protection whereby the Crown has a positive duty to protect Maori property interests and taonga.  The third principle was that past wrongs gave rise to a right of redress.16    Mr McCarthy observed that the Environment Court had, in [240] of its judgment, reflected the first two principles but not the third.  This was quite simply because there was no past wrong before the Court which it could redress.

[55]     Turning to  Part  2  of the Act,  Mr McCarthy submitted  that  although  the Environment Court was obliged to weigh the relevant factors to which that Part applied, the tangata whenua did not have a veto right.  Sections 6, 7, and 8 of the Act were all prefaced with the words “in achieving the purpose of this Act”.   That purpose  is  found  in  s 5.    In  carrying  out  the  purpose  of  the  Act  to  promote

sustainable management of natural and physical resources, a Court had to reach a balanced result, having considered and weighed relevant Part 2 factors.  I accept this submission.    The  job  of  the  Environment  Court  involves  exercising  a  broad evaluative judgment on whether a proposal promotes sustainable management of natural and physical resources.   The judgment involves weighing competing considerations.

[56]     This weighing process, leading to a balanced judgment, had been recognised by the Court of Appeal in Watercare Services Limited v Minhinnick,17  where the central issue was an application for an enforcement order designed to prevent a sewer pipeline being laid through an archaeological site which included wahi tapu. The Court said:18

The Court must weigh all the relevant competing considerations and ultimately make a value judgment on behalf of the community as a whole. Such Maori dimension as arises will be important but not decisive even if the subject-matter is seen as involving Maori issues. Those issues will usually, as here, intersect with other issues such as health and safety: compare s 5(2) and its definition of sustainable management. Cultural well-being, while one of the aspects of s 5, is accompanied by social and economic well-being. While the Maori dimension, whether arising under s 6(e) or otherwise, calls for close and careful consideration, other matters may in the end be found to be  more  cogent  when  the  Court,  as  the  representative  of  New  Zealand society as a whole, decides whether the subject-matter is offensive or objectionable under s 314. In the end a balanced judgment has to be made.

[57]     On the issue of the Mataitai Reserve Mr McCarthy accepted, in terms of s 6(e), that the mataitai was a matter of national importance and a place with which tangata whenua had a special relationship.  He submitted, however, there is nothing in the relevant regulations, or in the Act, which gave the Mataitai Reserve greater significance than other places with which Maori had a recognised relationship under s 6(e).  Mr McCarthy submitted there is no legal principle which required the Court to haul in the Treaty to give the Mataitai Reserve greater significance than other places to which s 6(e) applied.

[58]     The Minister’s for Fisheries decision to create the Mataitai Reserve did not,

in Mr McCarthy’s submission, turn the special s 6(e) relationship “into a single

17 Watercare Services Limited v Minhinnick [1998] 1 NZLR 294 (CA).

18 At 305.

paramount factor that trumps any other competing matter referred to in Part 2....” Any such interpretation  was  irreconcilable with  the s 5  sustainable management purpose which was designed to assist people in communities to provide for their social, economic, and cultural wellbeing, and for their health and safety.

[59]     In general terms, submitted Mr McCarthy, ss 6 and 7 of the Act gave effect (through  their  enactment)  to  the  Crown’s  Treaty  obligations  to  protect  Maori interests in a planning context.

[60]     In large measure, I uphold Mr McCarthy’s submissions which were carefully

considered and balanced.

Analysis

[61]     In their written submissions, and indeed during the appeal hearing, Ms Hamm for PTL and Mr Cooney for Bay of Plenty Regional Council suggested that counsel for the appellant and for TRONIT were effectively claiming a veto right for the groups they represented.   Mr McCarthy, as is apparent in his submission which I have outlined at [55] stressed that relevant Part 2 interests could not veto or trump the purpose of the Act.

[62]     In fairness to Ms Kapua and Mr Koning, they were not claiming that ss 6(e),

7, or 8 matters conferred a right of veto.  Their attack on the Environment Court’s judgment focused on matters of weight and balance.   Nonetheless, Ms Hamm submitted that if an excessively elevated or predominant weight was given to Part 2 matters, then there would indeed be little room in which a planning discretion under the Act could operate. There is some force to this submission.

[63]     My primary purpose in  setting out so  extensively the  passages  from the Environment Court’s judgment which deal with cultural interests was to highlight the measured and indeed sympathetic manner in which the Court approached its task. The first appeal point19 suggests the Court failed in its s 6(e) obligation to recognise and provide for Maori and cultural relationships.  This is indeed a matter of national

importance  and  deserves  (along  with  other  s 6  matters)  close  and  measured consideration.

[64]     But  the  mandatory  s 6  requirement  “to  recognise  and  provide”  does  not operate in a vacuum.   It is one of many factors to be considered under the Act in achieving, in the context of the exercise of the Act’s statutory powers, its purpose of promoting the sustainable management of natural physical resources.   Harbours, entrance channels,  ports,  pipi  beds,  and  fishing  grounds  are clearly natural  and physical resources. They are not exempt.

[65]     There  is  much  force  in  Courtney  J’s  observation  in  Freda  Pene  Rewiti Whanau Trust v Auckland Regional Council20  that ss 6, 7, and 8 are subordinate to s 5 and of descending significance between one another.   Courtney J additionally commented:21

... while all s 6 factors must be recognised and provided for, this exercise is not an end in itself but is an accessory to the primary purpose of the Act, namely sustainable management of this country’s natural and physical resources.  It is for the specialist tribunal to accord the weight to the various factors that it considers appropriate.

I agree.

[66]     For my part, although I do not disagree that ss 6, 7, and 8 might constitute a hierarchy to this effect,22 or, as Courtney J puts it, sections of “descending significance” I doubt whether much significant hangs on the hierarchy.   In some cases certain sections or their subsections may be engaged.  In other cases, not at all.

[67]     What is clear is that, as a matter of statutory interpretation, Parliament in enacting Part 2 has deliberately chosen different words.  Consideration of all three sections is mandatory (the use of the word “shall”).  When considering s 6 matters of national importance, the statutory obligation is to “recognise and provide”.   The

mandatory obligation is to have “particular regard” to the “various other” matters

20 Freda Pene Rewiti Whanau Trust v Auckland Regional Council HC Auckland CIV-2005-404-356, 9

December 2005 at 102.

21 At 72.

22 See alsoWaikanae Christian Holiday Park v Kapiti Coast District Council HC Wellington CIV-

2003-485-7764, 27 October 2004 at [99].

provided for in s 7.  The adjective “particular” denotes emphasis. And, for principles of the Treaty of Waitangi (s 8), the mandatory obligation is to take them into account.

[68]     Whether an obligation to “take into account” has lesser importance than an obligation to “recognise and provide” involves an interpretative exercise which must ultimately depend on the relevant subject matter of each of the three sections and the context of the evaluation.

[69]     Throughout its decision the Court has been alert to and weighed s 6(e) and (g) matters of national importance.  It has not paid mere lip service to s 6(e).  Rather it has, at length, set out the history of Mauao, Te Awanui, Panepane Point, and the fishing grounds.  It has recognised the deleterious effect which the history of the last

170 years in the region has had on those matters dear to the tangata whenua and their culture.

[70]     The  hearing  process  itself  forced  the  parties  into  a  greater  degree  of consultation.  The harbour and the Port will not go away.  Nor will Mauao, Tanea Shelf or Panepane Point.  Nor will the fishing grounds. The judgment which must be brought to bear on PTL’s application under the Act must be consistent with the s 5 purpose; must involve a weighing of many factors including Part 2 matters; and requires at the end of that process an evaluative assessment consistent with the purpose of the Act.  This is precisely what the Court has done in a fully informed and sensitive way.  The moratorium on interfering with Tanea Shelf, for example, is a product of the balancing exercise.  So too are the conditions designed to strengthen tangata whenua input into matters of harbour policy.

[71]     When considering s 6 the Environment Court held as follows:

[237]    In terms of Section 6(e) and (f) of the Act, we find that Mauao, Te Awanui and their surrounds are the ancestral lands and waters of the tribes of Tauranga Moana and their respective hapu.   Their relationship and their culture and traditions with this land and waters and associated taonga such as the fisheries, turns on their historic, spiritual and cultural associations and values.  We also find these features form part of their historical heritage.  We note that there will be an impact on their ancestral relationship, their culture and traditions including the mana and identity of the Tauranga Moana tribes with Te Awanui and Mauao.  We consider that will also be some effect on their historic heritage values associated with Mauao and Te Awanui.

[72]     On s 7(a) (kaitiakitanga) the Court accepted (there being no dispute) that the Tauranga Moana tribes and their hapu were kaitiaki.23    On s 8 matters.  The Court accepted it had to take into account the relevant principles of the Treaty of Waitangi given that the Tauranga Moana tribes had recognised kaitiakitanga and manu whenua over Mauao and Te Awanui.24

[73]     The Court correctly made findings about cultural effects and the balancing exercise it had to undertake:

[241]    In  practical  terms  our  findings  above  mean  that  we  accept  the evidence of the appellants that there will be the following cultural effects. We consider these effects to be more than minimal (de minimis) and as such, must be avoided, remedied or mitigated to achieve an acceptable level of effect under Section 5 of the Act. These cultural effects are:

[a]       the  interference  with  Mauao  by  the  channel  widening  at

Tanea Shelf;

[b]       the potential effects on Panepane Point that could be affected by the Matakana shoreline moving beyond its observed historical range;

[c]       the damage to Te Paritaha and the imemdaite loss of pipi and other kaimoana such as kina and paua, titiko etc;

[d]       potentially    some    loss    of    tikanga    and    matauranga

(knowledge); and

[e]       the   limitation   on   the   rangatiratanga   and   katiakitanga exercised by the appellants under the management regime of the Tauranga Moana Iwi Customary Fisheries Charitable Trust, tangata kaitiaki  and  their  management  of Te  Maunga  o  Mauao  Mataitai Reserve under the Fisheries (Kaimoana Customary Fishing) Regulations 1998.

[242]    We   must   also   consider   these   cultural   effects   alongside   the undisputed  evidence  of  the  Port  of  Tauranga  that  it  is  of  national  and regional economic significance.   We are also convinced that its ability to develop further will ensure its continued relevance to exporters who rely on efficient and cost effective access to international markets.  Such access is increasingly dependent on bigger shipping vessels with expanded container capacity.

[74]     The Court rejected submissions which had been made in opening by PTL’s

counsel that it should only consider physical effects.  The Court was very clear that

impacts might affect historic, traditional, and spiritual aspects of Maori relationship with their ancestral lands, waters, and their kaitiakitanga.25

[75]     The Court concluded, after giving close consideration to ongoing discussion between the parties and a shared desire to work for ecological improvements and gains of Te Awanui, as follows:

[298]    On balance, taking into account those developments, we all conclude that the proposed conditions offered by the Port during the closing of its case and as varied in this decision, adequately avoid, mitigate or remedy all these cultural  effects.   We  accept  that  the  appellants’ view  of  Mauao  and Te Awanui as their tipuna or ancestors, and that they cannot as a matter of tikanga, ever agree to the Port’s application.  But, and as a number of cases including Whangamata Maori Committee v Waikato Regional Council26 indicate, the provisions of Part 2 of the Act dealing with Maori interests where well founded in the evidence, give no veto power over developments under the Act.   Rather, these interests must be balanced against the other matters listed in Part 2 and the over-riding purpose of the Act under Section

5 to promote the sustainable management of natural and physical resources.

This analysis is exactly what the Act requires. There is no error.

[76]     The appellant’s second appeal point, that the Court made findings contrary to the overwhelming weight of cultural evidence without providing reasons for doing so, must fail.  This is not a tenable error of law.  The Court’s findings were reached after anxious consideration of all the cultural evidence it had received.  Its evaluative conclusion (at [298]) that, on balance, the consents sought by PTL to develop further the channel and Port involved conditions which adequately avoided, mitigated, or remedied cultural effects, was a conclusion open to the Court.   The Court acknowledged that the appellants could not as a matter of tikanga and tipuna ever agree to PTL’s application.  But that cultural consideration does not change Part 2 factors into a veto power, as the Court correctly acknowledged.

[77]     The  appellant’s  third  appeal  point,  dealt  with  briefly  by  Ms  Kapua  but expanded in a clear and forceful way by Mr Koning, was that the Court failed to pay particular  regard  to  the  status  of  the  Mataitai  Reserve  as  an  expression  of  the

Crown’s Treaty obligations. As I have already indicated27 the Court was indeed alert

to Mr Koning’s submission and was aware that the Mataitai was a product of the

1992 Fisheries settlement.

[78]     The impact of the consents on the Mataitai Reserve in my judgment engaged all three relevant sections (6, 7, and 8).   All Part 2 matters were  appropriately considered and weighed by the Court.   Relevant too was the evidence that PTL already had dredging consents in respect of the channel; that dredged materials were, with appropriate consents, placed elsewhere both inside and outside the Mataitai Reserve; and that there was a proposal to create a rock reef inside the Reserve which would  enhance  the  environment  for  kaimoana  (shellfish  and  crustaceans).    The impact  of  consents  on  pipi  beds  was  subject  to  much  evidence  and  carefully weighed.  It was held to be fairly minimal.  The historic status of the beds to seed young pipis and as an ongoing source of kaimoana would be preserved.

[79]     Mr Koning’s submission that the Environment Court erred in law because it failed to recognise that the Mataitai Reserve was the product of Treaty settlement is rejected.   I cannot fault the Court’s consideration of the Mataitai Reserve and its history.  Nor can I fault the Court’s evaluation.

[80]     Additionally, I accept Mr McCarthy’s submissions that the Court correctly identified the two relevant Treaty principles: that the proclamation of the Mataitai Reserve under the Fisheries (Kaimoana Customary Fisheries) Regulations 1998 was an expression of the Crown’s legal obligation to Maori in respect of customary fishing; and that, for Resource Management Act purposes, the Mataitai Reserve does not  have  greater  significance  over  and  above  its  status  of  national  importance pursuant to s 6(e).

[81]     Ms Kapua’s submission that the Court erred by not considering or preferring the option of doing nothing is, with respect, untenable.  Untenable too is the theme threading through all the appellant’s submissions that the Court did not adequately consider alternatives.  The Court gave close consideration to alternatives and to the

various options open to it:

27 Supra [46].

[243]    In cases such as this the Court is entitled to have regard to questions of alternatives.  As the High Court noted in Meridian Energy Ltd v Central Otago District Council (Lammermoor)28, although the test is not mandatory, it will clearly be more likely to arise in circumstances where matters under Section 6 arise.

[244]    We accept that there are no alternative methods or routes which would allow for the deepening of the channel with lesser effects.  The issue in this case is simply whether the depth and the width sought are required i.e. is the full extent of this alteration achieving sustainable management.

[245]    The further modification of Tanea Shelf is to provide a safety margin for vessels of between 300m and 350m in length.  The Maersk S Class at

350m is not a vessel identified as being one likely to utilise the Port in the

next 10 years.  Thus, the question must arise as to whether or not the effect on Tanea Shelf and on the Mauri of Mauao is justified and whether it can be delayed or avoided.

[246]    We see there may be advantages in delaying widening of the channel at Tanea Shelf.  It may be that vessels requiring the widening do not appear in New Zealand until late in the consented period of 15 years.   If they do appear they may be more manoeuvrable or there may be appropriate assistance by way of large tugs.  A delay would also give each party more time to appreciate the positions of other parties and work towards a better solution.

[247]    Against this are the reasons advanced by the  Port for doing the widening early and establishing new habitat on the proposed reef.  This has advantages for kaimoana gatherers who would have improved access to the resource offered by a shallow reef community.

[248]    Our conclusion is that the widening should be delayed as long as possible and thus the dredging done in at least two stages.

[82] Thus the Court saw merit in, and imposed, delay on modifications to Tanea Shelf. It also concluded that dredging should be staged. The short answer to Ms Kapua’s submission that the Court should have taken no action was that articulated by the Court in [244]. The Court correctly saw deepening and widening the channel as a matter which needed consideration in the light of the s 5 purpose.

[83]     The suggestion that modification of the Port of Tauranga for future use by big ships did not justify the consent sought was rejected by the Court:

[251]    Several parties suggest another alternative was that Tauranga Port not be used for big ships. We reject this alternative for several reasons:

[a]      It would not provide for the efficient use of the existing Port infrastructure;

28 Footnote omitted.

[b]       It is not for this Court to make decisions as to which ports should or should not cater for big ships; and

[c]       If a consent cannot be granted without unacceptable impacts then it should be refused rather than suggesting another port is more appropriate.

[84]     The final submission of substance, raised by Ms Kapua, related to the cultural evidence provided by PTL’s witness, Mr Mikaere.  Ms Kapua is correct when she asserts that Mr Mikaere had no mandate to give evidence on behalf of Ngati Ruahine or other Tauranga Moana iwi or hapu.  But that is not the reason why Mr Mikaere gave evidence.  He was called as an expert who had given evidence in many other fora.  He had previously supported (in different parts of the country) iwi claims.  He was not called, to give cultural evidence on behalf of Ngati Ruahine. Rather his expertise was designed to assist the Court in its assessment of cultural damage.  The appellants themselves called witnesses on this aspect, as did TRONIT.

[85]     The Court certainly considered Mr Mikaere’s evidence under the heading “Cultural evidence for the Port”.29    Mr Mikaere did not challenge the cultural importance to tangata whenua of Te Awanui and Mauao.   He identified “the main elements of the cultural landscape”,30 geographic features, and commented that most of these would not be affected by the dredging.   Affected features would be Te Paritaha (the pipi beds), Tanea Shelf, and Panepane Point where the effects would be modification to the seabed in respect to Te Paritaha, Tanea Shelf and possible risk of scouring of Panepane Point.

[86]     Panepane Point was historically significant because it was the place where Raumati,  who  had  destroyed  the Arawa  canoe,  was  caught  and  decapitated  by Hatupatu.  Mr Mikaere considered that increases of the shoreline over the centuries would place the site of the homicide well inland of the current shoreline.

[87]     Mr Mikaere referred to evidence from one of the appellant’s witnesses, Mr Coffey, that modifying the sea bed at Tanea Shelf was akin to cutting the toes of Mauao as “a modern day gloss”.   In general Mr Mikaere considered that remedial

measures would mitigate the impact of the dredging.

29 [217] – [226].

30 [219].

[88]     As to evidence to the effect that there would be an adverse impact on the mauri and health of Te Awanui Mr Mikaere deposed that this should not be determinative of the issues before the Court.  The Court had recognised the mauri of Te Awanui had already been diminished over the years, but that there was room for the mauri and health of the harbour to be enhanced with some of the proposed conditions.

[89]     There is nothing to suggest that Mr Mikaere’s evidence was determinative. Certainly his evidence supported some mitigation.   I do not consider there is any error of law arising out of the Environment Court receiving and considering Mr Mikaere’s evidence.

[90]     In hearings of this type the cultural evidence of affected iwi is only part of the factual matrix.  The legend relating to Mauao31 has relevance.  Relevant too, if any was before the Court, would be evidence of Mt Maunganui’s volcanic past, the volcanic origins of the boulders on Tanea Shelf, and other scientific and biological evidence about the landscape.

Result

[91]     In  the  previous  section  of  this  judgment  I  have  discussed  and  analysed counsel’s submissions.   In every section of this judgment I have set out relevant portions of the Environment Court’s judgment.

[92]   My conclusion is that the Environment Court correctly considered the competing evidence before it.    It  gave careful  and  sympathetic attention  to  the cultural evidence.  It has given correct weight to all Part 2 matters, including ss 6, 7, and 8.  It has evaluated all relevant matters and statutory imperatives.  It has reached a conclusion consistent with the Act’s purpose.

[93]     I am satisfied that, in reaching its conclusions and attaching the conditions which it did to the recommendations made to the Minister, the Court made a correct

evaluation, which was open to it, on the matters before it.   In particular the Court

31 Supra [19].

correctly discharged its responsibilities under ss 6, 7, and 8.  I discern no errors of law.  Nor have counsel been able to point to matters in their submissions which have the status of errors in law.

[94]     For all these reasons therefore (including the analysis in the previous sections of this judgment) the appeal is dismissed.

.......................................…

Priestley J

Counsel:

P Kapua, Tamatekapua Law, Auckland. Email: [email protected]

J P Koning, Koning Webster, Tauranga. Email: [email protected]

P H Cooney, Cooney Lees Morgan, Tauranga. Email: [email protected]

V J Hamm, Holland Beckett, Tauranga. Email: [email protected]

M Paddison, Holland Beckett, Tauranga. Email: [email protected]

P A McCarthy, Crown Law, Wellington. Email: [email protected]