Te Korowai o Ng�ruahine Trust v Hiringa Energy Limited
[2022] NZHC 2810
•31 October 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-000012
[2022] NZHC 2810
UNDER Clause 44 of Schedule 6 of the COVID-19 Recovery (Fast-Track Consenting) Act 2020 (the Act). IN THE MATTER
Of an appeal against the final decision of an Expert Consenting Panel under the Act to approve resource consents for the Kapuni Green Hydrogen Project.
BETWEEN
TE KOROWAI O NGĀRUAHINE TRUST
Appellant
AND
HIRINGA ENERGY LIMITED AND BALANCE AGRI-NUTRIENTS LIMITED
Respondents
(Continued next page)
Hearing: 16-17 May 2022 Appearances:
T H Bennion, L L Black for the Appellant L P Wallace, R E Eaton for the Respondent C M Hockly for the First Interested Party
D A C Bullock, J L Beverwijk for the Second Interested Party
Judgment:
31 October 2022
JUDGMENT OF GRICE J (Appeal)
TE KOROWAI O NGĀRUAHINE TRUST v HIRINGA ENERGY LIMITED AND BALANCE AGRI- NUTRIENTS LIMITED [2022] NZHC 2810 [31 October 2022]
ANDŌKAHU-INUAWAI ME ĒTEHI ATU HAPŪ, NGĀTI TU HAPŪ, NGĀTI TAMAAHUROA-TITAHI HAPŪ, NGĀTI HAUA HAPŪ AND KANIHI UMUTAHI ME ĒTEHI ATU HAPŪ
First Interested Parties
GREENPEACE AOTEAROA INCORPORATED
Second Interested Party
TARANAKI MĀORI TRUST BOARD
Third Interested Party
Contents
Abbreviations
Introduction[1]
Grounds of appeal[13]
New points raised on appeal[16]Principles on appeal[27]
Statutory framework for resource consent applications under the FTCA[35]
The Fast-track Consenting Act[36]
The Expert Panel[53]
First major issue — the Treaty and cultural issues [59]
Treaty and cultural issues — background[60]
Crown and Ngāruahine Treaty settlement[60] Various positions of iwi and hapū in respect of the Project[70] Te Korowai Cultural Impact Assessment (CIA)[80]
Ngāti Tu Cultural Impact Assessment (CIA)[93] Treaty and cultural issues — the expert report[99] Iwi concerns with the Project[100]
Assessment by the Panel of Māori and cultural values issues[111]
Findings as to the impacts of the Project[130]
Findings in relation to cultural issues[132]
Conditions related to cultural issues[148] Treaty and cultural issues — the statutory framework[149] Treaty clauses[149]
The legal framework[184]
The Panel’s report[194]
Engagement with the relevant interests[194]
Recognition of the principles of the Treaty[207]
Explaining the balance struck[212]
Treaty and cultural issues — analysis [220]
Reasons — striking the balance[243]
Particular points on appeal [248]
Failing to consider the cultural landscape of Ngāruahine as a whole[248] Failure to consider the precedential effect to be an adverse effect that could not be mitigated[255]
Reasons were not required for determining a hearing was not required on any
issue[259]
Delegation to local authority[267]
Conclusion on cultural issues[271]Second major issue — environmental issues[275] Failing to consider the precedent effect of the proposal to be an adverse effect over the life of the project that could not be mitigated; and finding that a critical reason for approving the project was 100 per cent transition to use of “green hydrogen” for transport[276]
Failure to consider the end use of urea and related environmental effects[294] Conclusion as to environmental issues[316] Summary[317]
Conclusion[327]
Costs[328]
Attachment 1 — Marae and Area with Direct Line of Sight
Attachment 2 — Excerpt from Appendix 2 conditions (relating to cultural conditions)
General
Wind turbine characteristics Culverts
Lizard survey Archaeology Cultural
Community consultation
Decommissioning and site rehabilitation Review
Abbreviations
COVID-19 Recovery (Fast-track Consenting) Act 2020 FTCA Cultural Impact Assessment CIA
Cultural and Spiritual Values CSV
Environmental Protection Agency EPA Exclusive Economic Zone and Continental
Shelf (Environmental Effects) Act 2012 EEZ Act
Expert Consenting Panel the Panel
Hiringa Energy Ltd Hiringa
Natural Features and Landscapes policy NFLNational Policy Statement Freshwater Management NPS-FM National Policy Statement Renewable
Energy Generation NPS-REG
New Zealand Coastal Policy Statement NZCPS
Outstanding Natural Features and Landscapes ONFL Parininihi ki Waitōtara Incorporation Māori Trust PKW Relationship of Māori with Ancestral Lands, Water,
Sites, Wāhi Tapu and other Taonga REL
Regional Policy Statement RPS
Record of Understanding ROU
Regional Coastal Environment Plan RCEP
Resource Management Act 1991 RMAStream Health Monitoring Assessment Kit Test SHMAK South Taranaki District Council STDC
Te Korowai o Ngāruahine Trust Te Korowai
Introduction
[1] The usual process for obtaining resource consent is under the Resource Management Act 1991 (the RMA). The COVID-19 Recovery (Fast-track Consenting) Act 2020 (the FTCA) was intended to provide a fast, simplified and shortened process for decision-making on resource consents to urgently promote employment to support New Zealand’s recovery from the economic and social impacts of COVID-19, while continuing to promote the sustainable management of natural and physical resources.1 The relevant consents the subject of this appeal were granted following a referral by the Minister for the Environment (the Minister) under the FTCA and determined by a four-member Expert Consenting Panel (the Panel).2 A resource consent granted under the FTCA is the same as if it were granted under the RMA.3
[2] Under the FTCA, the public notifications and hearing process is replaced by a streamlined notice process and comments process. There is no requirement for an oral hearing. Certain parties are, however, required to be notified.
[3] Of particular relevance to this appeal is that s 8 of the RMA, requiring persons exercising functions and powers under the RMA to “take into account” the principles of te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty), is replaced by s 6 of the FTCA, which requires these persons to act in a manner that is “consistent with” the principles of the Treaty and Treaty settlements.
[4] This is an appeal against the “fast-track” decision of a Panel approving with conditions resource consents for a “green” project to be undertaken by Hiringa Energy Ltd and Ballance Agri-Nutrients Ltd (collectively referred to as Hiringa).4
1 See s 4 of the COVID-19 Recovery (Fast-track Consenting) Act 2020 [the FTCA].
2 Under s 16 of the FTCA, the Minister is the Minister for the Environment. Under s 21, the Minister, upon receiving an application for referral, is required to invite written comments from 13 other Ministers, including those holding the portfolios of Local Government, Māori Crown Relations—Te Arawhiti, and Treaty of Waitangi Negotiations, as well as any other Ministers holding relevant portfolios.
3 Section 12(2)(b).
4 Record of decision of the Expert Consenting Panel under clause 37, schedule 6 of the COVID-19 Recovery (Fast-track Consenting) Act 2020, concerning a green hydrogen hub in Kapuni, South Taranaki, 1 December 2021 [the Panel Report].
[5] The project involves the development of a renewable (“green”) hydrogen hub at Kapuni in South Taranaki. In simple terms, electricity is to be generated from four large wind turbines to provide baseload power to the nearby Ballance Agri-Nutrients Kapuni Ammonia-Urea Manufacturing Plant. The resulting hydrogen produced will initially be used to produce ammonia and urea, before transitioning over a five-year period to supply hydrogen fuel for commercial and heavy transport (the Project).
[6] The scope of the Project is described in the consent application as to construct, install and operate a renewable hydrogen hub which will comprise: four wind turbines and associated infrastructure; an electrolysis plant; hydrogen production infrastructure; hydrogen storage, loadout, and refuelling facilities; and underground electricity cables and associated buildings and structures.5
[7] In this case, the parties required to be notified included Te Korowai o Ngāruahine Trust (Te Korowai), the mandated post-settlement governance entity and representative body for Ngāruahine iwi, including the two hapū who have uncontested mana whenua over the land on which the proposed Project is sited, namely Ngāti Manuhiakai and Ngāti Tu.
[8] The Minister was satisfied the application met the purpose of the FTCA and referred the application to the Panel accordingly. On 1 December 2021, the Panel released its decision in a report (the Report) approving the application and granting consents to the Project, subject to conditions, for a term of 35 years.
[9] Te Korowai appeals the decision. Ngāti Tu is a party supporting the appeal. Greenpeace Aotearoa Inc (Greenpeace) was also a notified party and supports the appeal. While these three parties took carriage of the arguments. Other parties appeared in support of the appellant.
[10] The issues on appeal fall into two main areas: first, Treaty and cultural issues; and secondly, environmental issues.
5 Hiringa Energy Ltd and Ballance Agri-Nutrients Ltd Resource Consent Application and Assessment of Environmental Effects: Kapuni Green Hydrogen Project (18 August 2021) at 29.
[11] In relation to the Treaty and cultural issues, the focus is on the alleged failure by the Panel to properly take into account tikanga and cultural issues as well as the individual positions of hapū and iwi and their issues of concern, and thus its failure to perform its functions in a manner “consistent with” the principles of the Treaty.
[12] Greenpeace (which is an entity which must be notified of applications for a referred project under the FTCA)6 took primary carriage of the arguments in relation to environmental issues. It says that the Panel failed to properly assess the environmental effects, including down-stream effects, of the urea fertiliser produced and so ultimate emissions caused by livestock on the fertilised pasture. It also submits that the stated environmental benefits said to flow from the project based on the transition over five years from use of the production of urea for fertiliser to the provision of hydrogen fuel for transport may not be realised because the conditions in the Report were inadequate in a number of respects.
Grounds of appeal
[13] Te Korowai brings its appeal on the grounds that the Panel made the following errors of law:
(a)finding that the proposal was “entirely consistent” with pt 2 of the Resource Management Act 1991, and in particular ss 6(e) and 7(a);
(b)failing to consider the cultural landscape of Ngāruahine as a whole;
(c)failing to consider the precedent effect of the proposal to be an adverse effect over the life of the project that could not be mitigated;
(d)concluding that the project has no impact on two cultural redress properties;
(e)determining that a hearing was not required on any issue without giving reasons; and
6 Schedule 6 cl 6(o) of the FTCA.
(f)finding that a critical reason for approving the project was 100 per cent transition to use of “green hydrogen” for transport.
[14]The ground at (d) above was not pursued.7 I do not deal with that further.
[15]The relief sought on appeal is the overturning of the grant of the consents.
New points raised on appeal
[16] The grounds above were expanded on in the Particularised Points on Appeal. Additional points were also raised in written submissions by the appellant and interested parties. Hiringa by agreement was given further time to respond and file extra submissions. Ms Wallace, for Hiringa, objects to additional questions of law and new evidence raised by Greenpeace and Ngāti Tu since the appeal was filed and not covered by the above grounds of appeal.
[17] Ms Wallace said it was not procedurally appropriate, nor in the interests of justice, for Greenpeace and Ngāti Tu as interested parties to raise these additional grounds of appeal. She noted that these new matters had been raised three months after the date the appeal was filed and less than two weeks before the respondents’ submissions were due, with no prior notice having been given. They are:
(a)the application of the wrong Treaty test;8
(b)failing to properly take into account the environmental effects of the end users of the urea fertiliser produced by the Project;9
7 In the appellant’s Particularised Points of Law on Appeal, dated 8 March 2022, a point of appeal was that the Panel did not assess any cultural impacts on the two cultural redress properties located near the Project site in reaching the conclusion (at [188] of the Panel Report, above n 4) that they were not affected: at [19]. However, by the time the parties filed their written submissions, Te Korowai opted not to pursue this point on appeal.
8 Section 8 of the Resource Management Act 1991 [the RMA] instead of s 6 of the FTCA.
9 The urea fertiliser is produced by the Ballance plant and will use hydrogen and energy from the project.
(c)failing to take into account the environmental consequences of the Project failing to transition from producing urea fertiliser to hydrogen fuel, or that transition being delayed;
(d)taking into account irrelevant considerations, being the benefits of transition to hydrogen fuel production without that transition being guaranteed or required to ever occur; and
(e)unlawfully delegating decision-making relating to the transition to the South Taranaki District Council under the RMA.
[18] Ms Wallace pointed to r 20.9(1)(c) of the High Court Rules 2016, which requires a notice of appeal to specify the grounds of appeal in sufficient detail to fully inform the Court, or other parties to the appeal. Leave to amend a notice of appeal may be given at any time with the leave of the Judge. No such leave had been sought or granted in this case.10
[19] Additional parties to proceedings must keep within the scope of the appeal, in furtherance of the well-established policy that a person should not be able to change or expand the scope of appeal by becoming a party.11 The addition of new points on appeal is a matter of discretion for the appellate court. The Court must ensure that the conduct of proceedings is procedurally fair.12 Courts tend to permit new points to be argued where they concern matters of law only and there is no material prejudice to the other parties.13
[20] The additional points raised effectively expand the grounds of appeal to include reference to s 6 of the FTCA, which is the replacement Treaty clause, and to cover points concerning the environment effects of the end product use and the transition to use of the hydrogen for fuel transport.
10 High Court Rules 2016, r 20.9(4).
11 Robert Street Action Group Inc v Taupō District Council [2021] NZEnvC 129 at [23].
12 McCollum v Thompson [2017] NZCA 269, [2017] NZAR 1106 at [52]–[54].
13 See for example Foodstuffs (Auckland) Ltd v Commerce Commission [2002] UKPC 25, [2004] 1 NZLR 145 at [9]. If an appellant succeeds only on a new point, this may justify a refusal to award costs: see for example Pioneer Insurance Co Ltd v White Heron Motor Lodge Ltd [2008] NZCA 450, (2008) 19 PRNZ 286 at [57]–[58].
[21] I deal first with the point at additional point (a) above concerning the application of 6 of the FTCA (the Treaty clause).
[22] The original grounds of appeal would have required consideration of the s 6 Treaty clause. The RMA provisions in s 6(e) (relationship of Māori and their culture and traditions with their ancestral lands and taonga) and s 7(a) (having particular regard to kaitiakitanga) of the RMA, which are directly in play in this appeal, can only be considered in the context of the applicable Treaty clause. In addition, the Particularised Points on Appeal, dated 8 March 2022, also referred to the displacement of s 8 of the RMA by s 6 of the FTCA in a quote taken from the Panel’s decision. The grounds of appeal alleged a general failure by the Panel to consider the cultural landscape of Ngāruahine as a whole. This would necessarily require the consideration of the Treaty clause and in particular the difference between the wording of s 6 of FTCA and s 8 of the RMA. In my view, the grounds of appeal are sufficiently wide to include consideration of the s 6 FTCA Treaty clause.
[23] I now turn to the proposed added points relating to the end product use of the green energy at additional point (b) above. The environmental effects of the end uses of the urea fertiliser were not discretely raised in the grounds of appeal and are not mentioned in the appellants’ particularised points of law on appeal.14 The argument on this point is outside the grounds of appeal. The limitation on what interested parties may argue enables an effective focus for all concerned on the points on appeal and the appeal time limits are designed to ensure that all parties have a fair time to consider and prepare their arguments. In this case, Hiringa was given further time and the opportunity (which it took) to file additional submissions to address the point. In those circumstances there is no or little prejudice to Hiringa. Leave is granted to argue that point.
[24] In relation to the transition from producing urea for fertiliser to hydrogen fuel, ground (f) of the grounds of appeal refers to the fact that the 100 per cent transition to use of “green hydrogen” for transport was a “critical reason” the Panel gave for approving the project but had not been properly captured in the consent conditions. I
14 Particularised Points of Law on Appeal, above n 7.
consider the point concerning the failure to guarantee transition of use to hydrogen fuel is able to be argued within this ground.
[25] The unlawful delegation point falls naturally within the point regarding the adequacy of the transition conditions.
[26] Accordingly, I am of the view it is in the interests of justice to treat the points to which Hiringa has objected to, as set out at [17] above, as within the scope of the appeal. Leave is granted for those points to be argued on appeal.
Principles on appeal
[27] Under cl 44(1) of sch 6 of the FTCA, a party may appeal the decision of a panel to the High Court. The appeal is limited to a question of law.15 The parties to an appeal are the appellant and any person who gives a notice of intention to appear.16
[28] The Supreme Court in Bryson v Three Foot Six Ltd said an error of law may occur if the decision-maker:17
(a)applied the wrong legal test;18
(b)reached a factual finding that was “so insupportable – so clearly untenable – as to amount to an error of law”;19
(c)came to a conclusion that it could not reasonably have reached on the evidence before it;20 or
(d)took into account irrelevant matters; or failed to take into account matters that it should have considered.
15 Schedule 6 cl 44(2) of the FTCA.
16 Schedule 6 cl 45(8).
17 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
18 At [24].
19 At [26].
20 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 45, (1994) 18 ELRNZ 150 (HC) at 153; and May v May [1982] 1 NZFLR 165 (CA).
[29] Procedural errors such as, for instance, a breach of natural justice under common law or statute, may amount to a point of law in an appeal.21
[30] That a Court would have reached a different conclusion does not of itself allow interference on appeal if the decision on appeal was a permissible option. This presents a very high hurdle.22 However, a question about facts and the evidence or the inferences and conclusions drawn by a decision-maker may sometimes amount to a question of law. Not every allegation of a lack of factual basis or wrong inferences or conclusions from the evidence, however, will turn such an issue of fact into a question of law.23 As the Court of Appeal has noted, in the absence of a general appeal, it is not the role of the Court in an appeal on a question of law “to undertake a broad reappraisal of the … factual findings or the exercise of its evaluative judgments”.24
[31] In particular, the nature and statutory functions of the decision-maker should be considered. Important factors, including whether it has particular expertise or wide policy considerations, are to be taken into account in the exercise of its decision-making.25
[32] Deference to expertise where appropriate must be accorded to the Environment Court as a specialist Court and the expert tribunal.26 As the High Court stated in Guardians of Paku Bay Association Inc v Waikato Regional Council, the Environment Court’s decisions “will often depend on planning, logic and experience, and not necessarily evidence”.27 There 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.28
21 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175, [2019] 3 NZLR 345 at [55]; and Kawerau Jet Services Holdings Ltd v Queenstown Lakes District Council [2015] NZHC 2353 at [45].
22 Bryson v Three Foot Six Ltd, above n 17, at [27].
23 Marris v Ministry of Works and Development [1987] 1 NZLR 125 (HC) at [127].
24 Chorus Ltd v Commerce Commission [2014] NZCA 440 at [112].
25 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at [33].
26 At [42].
27 At [33].
28 At [33].
[33] The High Court has recognised that a Judge of this Court is not equipped to revisit the merits of a determination made by a specialist Court on a subject within its sphere of expertise.29 In Horticulture New Zealand v Manawatu-Wanganui Regional Council, Kós J cited with approval the statement of Harrison J in McGregor v Rodney District Council that:30
… [t]o succeed on appeal an aggrieved party must prove that the Court erred in law – never an easy burden where the presiding Judge has unique familiarity with the statute governing the Court’s jurisdiction.
[34] Although the decision in this case was made by an appointed Expert Panel, not the Environment Court, the authorities as stated above in relation to decision-making by expert tribunals are applicable.
Statutory framework for resource consent applications under the FTCA
[35] In this case, the Minister determined that this application should be a referred project to be dealt with under the FTCA, as opposed to the usual process under the RMA.
The Fast-track Consenting Act
[36] The FTCA came into force on 9 July 2020 and has a sunset clause which sees the legislation repealed on 8 July 2023.31 The purpose of the legislation is described in s 4 as follows:
4 Purpose
The purpose of this Act is to urgently promote employment to support New Zealand’s recovery from the economic and social impacts of COVID-19 and to support the certainty of ongoing investment across New Zealand, while continuing to promote the sustainable management of natural and physical resources.
[37] The fast-track consenting process applies to “listed projects”, which are itemised in a schedule to the Act, as well as referred projects. This is a referred project. The Project requires land use consents, a water permit and a discharge consent. The
29 Horticulture New Zealand v Manawatu-Wanganui Regional Council [2013] NZHC 2492, (2013) 17 ELRNZ 652 at [28].
30 At [28], citing McGregor v Rodney District Council [2004] NZRMA 481 (HC) at [1].
31 Section 3(1) of the FTCA.
applications for consent do not include consents for the existing fertiliser plant except for the consideration of the infrastructure allowing the plant to be fuelled by the green energy hydrogen.
[38] A project may be referred to an Expert Consenting Panel for determination under the FTCA if the Minister is satisfied that a referred project will help to achieve the purposes of the Act.32 The Minister may have regard to a number of matters, including: the project’s economic benefits and costs for people or industries affected by COVID-19; the project’s effect on the social and cultural well-being of current and future generations; whether the project would be likely to progress faster by using the processes provided by the FTCA than would otherwise be the case; and whether the project may result in a public benefit, which includes by, for example, contributing to New Zealand’s efforts to mitigate climate change and transition more quickly to a low-emissions economy.
[39] The application to the Minister for referral must include a list of all the persons affected or likely to be affected, including relevant local authorities, relevant iwi authorities, and relevant Treaty settlement entities; as well as a summary of any consultation already undertaken on the project with those persons; and a list of Treaty settlements that apply to the geographical location of the project.33
[40] The Minister must then obtain written comments on the referral application from relevant local authorities as well as relevant ministers, including the Minister of Māori Crown Relations—Te Arawhiti, the Minister for Climate Change, and the Minister of Treaty Negotiations; and a report on the application for referral must be prepared by the Ministry in consultation with the Office for Māori Crown Relations— Te Arawhiti, identifying including, among other things, the relevant iwi authorities and Treaty settlement entities, and any Treaty settlements that relate to the project area.34
[41] If the Minister decides to accept the application for referral,35 they must give notice of their decision and reasons for the referral to, among others, the relevant iwi
32 Section 18(2).
33 Section 20(3)(h), (i) and (j).
34 Sections 17(1)–(2) and 21(6).
35 Section 24.
authorities and Treaty settlement entities identified, and any other iwi authorities or Treaty settlement entities that the Minister considers have an interest in the matter.36
[42] Once a project is referred on the recommendation of the Minister, the application is sent to the Environmental Protection Agency (EPA) with all information received that relates to the matter.37 The project is then considered by the Panel.38
[43] The information required in a consent application is set out at sch 6 cl 9 of the FTCA and includes: an assessment of the proposed activity against pt 2 of the RMA, the purpose of the FTCA and whether the project would help to achieve the purpose of the FTCA;39 information about any Treaty settlements that apply in the project area;40 and the conditions the applicant proposes for the resource consent.41
[44] The application must also include an assessment of the proposed activity against any relevant objectives, policies, rules, requirements, conditions or permissions in the following planning and policy documents:42 a national environment standard; other regulations made under the RMA; a national policy statement; a New Zealand coastal policy statement; a regional policy statement or proposed regional policy statement; a plan or proposed plan; and a planning document recognised by a relevant iwi authority and lodged with a local authority.
[45] An application must also include a cultural impact assessment (CIA) prepared by or on behalf of the relevant iwi authority, or a statement of any reasons given by the relevant iwi authority for not providing a CIA.43
[46] No public notification of the application is permitted.44 However, the panel must invite written comments on the application before it from persons or groups listed in the FTCA, including the relevant iwi authorities and Greenpeace.45
36 Section 25(2)(c) and (d).
37 Section 26(2).
38 Section 27.
39 Schedule 6 cl 9(1)(g).
40 Schedule 6 cl 9(1)(h).
41 Schedule 6 cl 9(1)(j).
42 Schedule 6 cl 9(1)(h) and (2)–(3).
43 Schedule 6 cl 9(5).
44 Schedule 6 cl 17(1).
45 Schedule 6 cl 17(6)(b) and (o).
[47] Any iwi authority invited to comment may share the consent application with hapū whose rohe is in the project area and may include those of hapū in its comments to the panel.46 Comments must be made within 10 working days after the date on which the invitation for written comments is made.47 The panel is not required to receive late comments but may, in its discretion, receive comments after the notice specified in the invitation.48 The applicant for consent must then provide its response or comments not later than five working days after the date the comments were to be received from the invited parties.49
[48] In determining an application for consent under the FTCA, the provisions of sch 6 of the FTCA apply instead of the usual process under the RMA.50 The provisions of the RMA continue to otherwise apply, to the extent relevant and with necessary modifications,51 including the duty to “avoid, remedy, or mitigate adverse effects”.52 A resource consent granted under the FTCA has the same force and effect for its duration “and according to its terms and conditions”, as if it were granted under the RMA.53 The duration of consents is generally 35 years.54
[49]The consent process timeline is tight and is usefully represented as follows:55
46 Schedule 6 cl 18(3).
47 Schedule 6 cl 18(1).
48 Schedule 6 cl 18(6).
49 Schedule 6 cl 19.
50 Section 12(2)(a).
51 Section 12(10).
52 Section 12(9); and s 17 of the RMA.
53 Section 12(2)(b).
54 Schedule 6 cl 36(4); and s 123 of the RMA.
55 Te Mana Rauhī Taiao | Environmental Protection Authority “Fast-track consenting”
< In considering consent applications on referred projects, the panel must have regard to a number of matters, including any actual and potential effects on the environment, any measures agreed to by the applicant to offset or compensate for any adverse effects, any relevant provisions of the planning and policy documents listed above, and any other relevant matter reasonably necessary to determine the application.56 The panel must not have regard to any effect on a person who has given written approval to the application,57 unless the person withdraws their approval.58 A panel must comply with any obligation on a local authority or other decision-maker
56 Schedule 6 cl 31(1) of the FTCA.
57 Schedule 6 cl 31(5)(a)(ii).
58 Schedule 6 cl 31(6).
under a Treaty settlement as if it were that local authority or decision-maker.59 A panel may decline a consent application if the information is inadequate to determine the application,60 and must decline an application if that is necessary to comply with the s 6 Treaty clause under the FTCA.61
[51] A panel may grant a resource consent subject to such conditions it considers appropriate.62 Before it does so, the panel must provide copies of the draft conditions to the applicant and every person or group that provided comments.63 Before making its final decision on a consent application, the panel must have regard to all comments received on the draft conditions.64
[52] Once the resource consent has been granted, the local authority has all the functions, duties and powers in relation to that consent as if it had been granted by the local authority.65 Those functions, duties and powers include the determination of any application to extend a lapsed period,66 and the determination of any application for change or cancellation of a condition of a resource consent.67
The Expert Panel
[53] The Panel convenor makes the final decision who from the panel is appointed to an expert panel to determine resource consents for a particular referred project.68 The panel must include a person nominated by the relevant local authority and a person nominated by the relevant Iwi authorities.69 The panel chairperson is appointed by the convenor and must be suitably qualified.70
59 Schedule 6 cl 31(10). The example given is the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, which requires the consent authority to have particular regard to the vision and strategy set out in the settlement Act.
60 Schedule 6 cl 31(8).
61 Schedule 6 cl 31(12).
62 Schedule 6 cl 35(2).
63 Schedule 6 cl 36(1).
64 Schedule 6 cl 36(5).
65 Schedule 6 cl 42(2)(a).
66 Schedule 6 cl 42(5)(a), referring to ss 125(1A) and 184 of the RMA.
67 Schedule 6 cl 42(5)(b), referring to s 127 of the RMA.
68 Schedule 5 cls 2(5) and 3(4)–(5).
69 Schedule 5 cl 3(2).
70 Schedule 5 cl 4(3).
[54] Collectively, each panel must have knowledge, skills and expertise relevant to resource management issues, technical expertise relevant to the project, and expertise in tikanga Māori and mātauranga Māori.71
[55] The Panel may hold a hearing if, in its discretion, it “considers it is appropriate”.72 If it does hold a hearing, the panel may receive as evidence any statement, document, information, or matter that may assist it to deal effectively with an application, whether or not it would be admissible in court.73
[56] The hearing must be completed within the statutory timeframe. The panel’s decision and report must be delivered as soon as practicable after a panel has completed its consideration of an application and in any case no later than 25 working days after the date specified for receiving the initial comments.74 However, a panel may extend that period by up to a further 25 working days, or any other number of working days, “if the scale or nature of the proposal … is such that the panel is unable to complete its decision within the time specified”, that is 25 days.75 The Minister may delay the processing of the consent application in limited circumstances, and the applicant may also request such delay.76
[57] The FTCA emphasises speed and efficiency in dealing with an application. Section 10 provides:
10 Procedural principles
(1)Every person performing functions and exercising powers under this Act must take all practicable steps to use timely, efficient, consistent, and cost-effective processes that are proportionate to the functions, duties, or powers being performed or exercised.
…
[58] Though the FTCA will be repealed on 8 July 2023, the panel continues in office until it has completed the performance of its functions and duties,77 and the powers,
71 Schedule 5 cl 7(1).
72 Schedule 6 cl 21(1).
73 Schedule 6 cl 21(9).
74 Schedule 6 cl 37(1) and (2)(b).
75 Schedule 6 cl 37(3)(b).
76 Schedule 6 cls 22–23.
77 Schedule 1 cl 1(5).
functions and duties conferred by the FTCA on local authorities and iwi authorities continue to be exercised or performed after the repeal of the FTCA for any purpose connected with the monitoring of activities authorised under the FTCA.78
First major issue — the Treaty and cultural issues
[59] In considering this appeal, I first turn to the issues arising in respect of the Panel’s consideration of the Treaty, as it is expressly required to do under s 6 of the FTCA (the Treaty clause), and related cultural issues.
Treaty and cultural issues — background
Crown and Ngāruahine Treaty settlement
[60] The Crown and Ngāruahine signed a deed of settlement in August 2014.79 In it, Ngāruahine and the Crown acknowledged that Tupuna Koro o Taranaki (Mt Taranaki) “is of great traditional, cultural, historical and spiritual importance to iwi of Taranaki”.80 A guarantee of negotiations between the Crown and mandated representatives of Taranaki Iwi to develop an apology and cultural redress in relation to those claims, at a later point, was the form of redress to conditionally settle the historical claims of Ngāruahine relating to Mt Taranaki.81
[61] The Ngāruahine Claims Settlement Act (the Settlement Act) was enacted in 2016. Te Korowai is recognised in the Settlement Act as the mandated iwi entity.82
[62] In the Settlement Act, the Crown acknowledged breaches of the Treaty and its principles during the 19th and 20th centuries and that these significantly undermined the traditional systems of authority and economic capacity of the Ngāruahine Iwi and its people.83 The Crown acknowledged that it had “failed to protect the rangatiratanga
78 Schedule 1 cl 5(a).
79 Ngāruahine and the trustees of Te Korowai o Ngāruahine Trust and the Crown “Deed of Settlement of Historical Claims” (1 August 2014) [Deed of Settlement].
80 At [5.1].
81 At [5.3]; and see Manatū Mō Te Taiao | Ministry for the Environment Report prepared in accordance with Section 17 Covid-19 (Fast-track Consenting) Act 2020: Application 2020.028 Kapuni Green Hydrogen Project (Hiringa Energy Ltd & Ballance Agri-Nutrients Ltd) at [32]– [33].
82 Ngāruahine Claims Settlement Act 2016 [the Settlement Act], s 132.
83 Section 9(16).
of Ngāruahine, in breach of its obligations under Article Two of the Treaty of Waitangi”.84
[63] The Settlement Act provides for the involvement of the iwi in decisions relating to the conservation estate. To that end, there are ongoing discussions towards the recognition of the significance of Taranaki Maunga to Taranaki iwi, including Ngāruahine, with a view to recognition of Te Maunga as a separate legal personality.
[64] The statute recognises Ngāruahine as the kaitiaki of the general area in which the turbines are located. It provides for the lodging of a kaitiaki plan with the relevant local authority.85 The purpose of the kaitiaki plan is to identify the values and principles of Ngāruahine, and the resource management issues of significance to Ngāruahine, in relation to the kaitiaki area.86
[65] When a relevant local authority is preparing or reviewing a policy statement or a plan under the Resource Management Act, it must take into account any kaitiaki plan lodged with it, to the extent that the plan’s content has a bearing on the resource management issues of the kaitiaki area within its jurisdiction.87
[66] In this case the relevant kaitiaki plan (the draft kaitiaki plan) is in draft and has not been lodged, although the draft kaitiaki plan was used by Te Korowai in its Cultural Impact Assessment prepared in respect of the present project.88
[67] The Settlement Act also provides for three nominees from the iwi to sit on the local authority’s policy and planning committee and regulatory committee.89 Those nominees must act in the interests of the committee while also presenting the perspectives of the iwi of Taranaki to the committee.90
[68]In this case Te Korowai was requested to nominate a member of the panel.
84 Section 9(16).
85 Section 78.
86 Section 77.
87 Section 79(2).
88 See further discussion of the consideration of the draft kaitiaki plan at [83], [107], [128] and [234].
89 Section 87(1) and (3) of the Settlement Act.
90 Section 88.
[69] The settlement also provides for the return of lands of cultural importance. No cultural redress land lies within the project site. The land on which the four wind turbines will be located is raupatu land (confiscated land) and is now owned by a Māori incorporated trust, Parininihi Ki Waitōtara (PKW). It has agreed to lease the land to Hiringa, but that remains subject to PKW’s consent in writing.91 PKW said in its comments to the Panel that it supported the Project and relevant resource consent subject to the ongoing support of iwi and hapū and the final conditions.92 Many shareholders in PKW are members of the hapū and iwi involved in these proceedings.
Various positions of iwi and hapū in respect of the Project
[70] Te Rūnanga o Ngāti Ruanui Trust, the mandated representative body of Ngāti Ruanui, commented in its submission that while it supported developments to generate sustainable energy to replace fossil fuels, it was concerned about the fast-tracking legislation and whether the process would achieve a consenting outcome at the expense of good environmental outcomes and the upholding of Treaty partnership responsibilities. In particular, the Trust expressed concerns about the dominance of the turbines on the landscape, namely their size and visual impact, which, if approved, could set a new benchmark for what could be approved for more to come.
[71] A map showing in general terms the kaitiaki area (outer blue lines) and the position of the seven marae of relevant hapū, as well as the location of the turbines and the plant (in yellow), is annexed as Attachment 1 to this decision.93 Of the seven Ngāruahine marae in the vicinity of the Project, four are within seven kilometres of the turbines at the southern end of the Ngāruahine rohe. These are:
(a)Mawhitiwhiti (Kanihi-Umatahi hapū);
(b)Aotearoa (Okahu-Inuawai hapū);
91 The details of the agreement to lease and conditions were not made available.
92 The relevant agreement to lease or lease document between Hiringa and PKW was not before the Panel, nor was it produced at this hearing despite some discussion by counsel about the contents of the lease. Counsel for Te Korowai indicated that the consent of PKW was subject to the support of hapū and iwi. Hiringa denied this was a condition of the lease or agreement to lease.
93 Hiringa Energy Ltd Kapuni Green Hydrogen Project: Direct line of sight area (6 May 2022).
(c)Te Aroha (Ngāti Manuhiakai hapū); and
(d)Waiokura (Ngāti Tu hapū).
[72] Three marae are over 10 kilometres away from the turbines at the northern end of the Ngāruahine rohe:
(a)Okare ki Uta (Ngāti Haua hapū);
(b)Tawhitinui (Ngāti Haua hapū); and
(c)Oeo Pa (Ngāti Tamaahuroa me Titahi hapū).
[73] Te Aroha, a marae of Ngāti Manuhiakai hapū, is the most affected by the visual impact of the turbines.
[74]In respect of the Project, the various hapū took different positions.
[75] As identified by Te Korowai early in the project, the two hapū holding mana whenua over the project site land are Ngāti Tu and Ngāti Manuhiakai. Mr Hockly submitted that Ngāti Tu was ahikāroa94 in this rohe, as was demonstrated by their ongoing presence at Waiokura Marae, which lies directly south of the turbine project area, and their maunga koro Taranaki. The awa (river) near the marae, certain tributaries of which cross the PKW land, connotes an area of kaitiakitanga to Ngāti Tu. This was explicitly recognised in the form of a statutory acknowledgement for Ngāti Tu and Ngāruahine in the Deed of Settlement and was noted in the CIA.95
[76] Ngāti Tu initially supported the Project subject to conditions, which it said were not then met by Hiringa, so it subsequently has withdrawn its support for the Project.
94 “Ahikāroa” refers to the “burning fires of occupation” and denotes “continuous occupation”: Te Aka Māori Dictionary “ahikāroa” < of Settlement, above n 79, at [5.31.1]; and Hiringa Energy Ltd and Ngāti Tu Hapū Cultural Impact Assessment (July 2021) [Ngāti Tu CIA] at 7 and 9–12.
[77] Ngāti Manuhiakai hapū also has mana whenua over the area. It has approved the Project and its unconditional support remains in place.
[78] Early in the project in late May 2020, Te Korowai had told Hiringa that it should engage only with Ngāti Tu and Ngāti Manuhiakai as the proposals would directly affect those hapū as mana whenua.96 Te Korowai recorded that Ōkahu- Inuāwai hapū wished to be involved in any future decisions should the Project be scaled up in the future, given concerns that the Waingongoro River, an important river to the hapū, would be increasingly abstracted from should that occur.97
[79] As more project detail became known to Te Korowai, however, it took the view that the impacts were likely to affect all six hapū, based on the potential impacts of the wind turbine component of the project.98
Te Korowai Cultural Impact Assessment (CIA)
[80] The most valued site of significance to Ngāruahine, Taranaki Maunga, lies within the Ngāruahine kaitiaki area. Te Korowai, being the post-settlement governance entity for Ngāruahine iwi, produced a detailed CIA, dated 16 August 2021, prepared in view of the Project, noting it had a responsibility to ensure that the cultural and environmental values and interests of Ngāruahine were safeguarded.99
[81] Te Korowai said its CIA was designed to inform the Panel of the “issues and potential impacts of the Project on Ngāruahine cultural values and interests”.100 The two streams (and tributaries) related to the Project were both statutory acknowledgement areas under the Settlement Act.101
[82] Te Korowai noted that the permanent placement of the turbines had the potential to have a considerable impact on the highly valued relationship of
96 Te Korowai o Ngāruahine Trust Cultural Impact Assessment: Kapuni Green Hydrogen Project (16 August 2021) [Te Korowai CIA] at 2.
97 At 2.
98 At 2.
99 At ii.
100 At ii.
101 At 2.
Ngāruahine uri to Taranaki Maunga.102 However, it conditionally supported the proposal if there was a clear commitment from the applicant to remove the wind turbines from the site at the end of their useful life or after 35 years, whichever was the earlier.103
[83] The Te Korowai CIA noted the tukanga, or methodology, of the assessment had the potential to ensure the resource management processes were Treaty-compliant and so enable the exercise of tino rangatiratanga by iwi and hapū in their traditional territories, the prioritisation of kaitiaki interests and the expression of effective tangata whenua influence in decision-making.104 It looked to its draft kaitiaki plan, hapū statements and responses, its five-year strategy and the Settlement Act as sources of the cultural values used to develop the CIA.105 A copy of the Ngāruahine draft kaitiaki plan was annexed to the CIA.
[84] Appendix 3 recorded the positions of the six hapū of Ngāruahine in relation to the Project, which I now outline in summary.
[85] In respect of Ngāti Tu, Te Korowai commented that it supported the contents of and expression of rangatiratanga in the CIA developed by Ngāti Tu with support from Hiringa.106 I discuss the CIA of Ngāti Tu in greater detail below.
[86] Kānihi-Umutahi hapū gave no official feedback but commented that they work with Ōkahu-Inuāwai in a “mutually respectful and beneficial relationship based on common whakapapa and objectives.”107
[87] Ngāti Haua said the short timeframe had given it no time to come together in a productive way to consider and discuss the impacts that the application had on it as a hapū.108 It requested that in future engagement, it be given more time and opportunity to have the mahi explained so they could give meaningful feedback. They
102 At ii.
103 At ii.
104 At 2.
105 At 4.
106 At 38.
107 At 38.
108 At 38.
expressed a sense of disempowerment and loss. As they recorded, “as tangata whenua we again are asked to find a work around of our cultural beliefs and connections to the environment/taiao (Tupuna Maunga)”.109 It said that it felt like they were “too late” and the decisions had been made. It felt like a “minority voice who are just part of the consultation tick box process”.110 The hapū was concerned about the inability to mitigate against harm that disturbs the essence of “wairua – the spiritual pathway from a person to Tupuna Maunga and the Taiao”.111 It sought to see a focus on Maunga Tupuna as a legal person in the CIA as an important feature”.112 The hapū insisted that when looking at the cultural impacts on hapū and iwi, the application do so from a “holistic, whole of Maunga approach”.113 The hapū commented that while each hapū has mana whenua for the location their marae resides in and some hapū may be impacted more, many uri belong to many of the marae in the South Taranaki location and wider, and not just to one marae. As the hapū said:114
Thus we as a people are not restricted by Marae, rohe, area to carry out cultural practices. Rituals can be practi[s]ed anywhere in Taranaki ... regardless which Pā you are from, Tupuna Maunga will be your kaitiaki as you carry out cultural practices in your day to day activity.
[88] Referring to “this offensive use of our maunga, waterways and whenua”, the hapū stated:115
Looking out towards our Tupuna Maunga, all we will see is a reminder that we continue to be colonised to the point that we may now have a physical obstruction between us and our Tupuna Maunga.
[89] The hapū said it was crucial to the psychological being of the hapū to consistently maintain its identity without seeing the man-made physical obstructions intruding across its path.116 It noted the importance of the following values from the Te Anga Pūtakerongo record of understanding between Ngā Maunga o Taranaki (the mandated entity for negotiation of Tūpuna Maunga) and the Crown:117
109 At 38.
110 At 39.
111 At 39.
112 At 39.
113 At 39.
114 At 39 (emphasis in original).
115 At 40.
116 At 40.
117 At 40.
(a)the status of Ngā Maunga as an indivisible whole and as Tupuna;
(b)preserving and protecting the natural environment and features of Ngā Maunga and the relationship of Ngā Iwi o Taranaki and all people with Ngā Maunga; and
(c)upholding the ancestral, historical, spiritual, and cultural relationships of Ngā Iwi o Taranaki with our Tupuna.
[90] Ōkahu-Inuāwai hapū recorded that at a hapū hui on 28 February 2021, there was general consensus that they: did not support wind turbines as part of the Project; did not support any fast-tracking of the project, which they said will leave hapū behind; and had formally withdrawn from future discussions with the Project.118
[91] Tamaahuroa Titahi hapū, following a hui of the hapū held on 15 May 2021, recorded that they supported Hiringa’s work “to reduce emissions and that they support[ed] any decisions made by Ngāti Manuhiakai and Ngāti Tu regarding the project”.119
[92] Ngāti Manuhiakai hapū commented that they had met and assessed the proposal. By letter to the Minister dated 15 February 2021, the hapū confirmed their constructive relationship with Hiringa and that it was satisfied with the consultation with the hapū to date in respect of the Project.120 It noted that an offer to finance a CIA had been made but the hapū was satisfied that the potential impacts had been identified and “can and will” be appropriately mitigated, and that the interests of the hapū had been taken into account. The hapū concluded by confirming that they supported the project “in principle” and were “look[ing] forward to working with [Hiringa] in the delivery and operation of this exciting project.”
118 At 40.
119 At 40.
120 Letter from Ferinica Hawe-Foreman (Tiamana o te Ngāti Manuhiakai hapū) to David Parker (Minister for the Environment) regarding the support of the hapū for the project (15 February 2021).
Ngāti Tu Cultural Impact Assessment (CIA)
[93]Ngāti Tu prepared a CIA in respect of the Project, dated July 2021.121
[94] The CIA provided a brief history of Ngāti Tu and the connection to and importance of the Kaupokonui River.122 The hapū noted the mauri of the awa and the importance to Ngāti Tu of a healthy waterway. The CIA also noted the importance of trees and requested a “Fresh Water Ecology Report” from within the last 12 months and/or a Stream Health Monitoring Assessment Kit Test (SHMAK) as to the ecological health status of the waterways within their boundaries.123 The hapū also supported more trees and riparian planting to be done along the waterways, and not just in a single row.124 The assessment also noted the importance to Ngāti Tu of mauri whenua (healthy land) and its support for the use of more natural/organic-based fertilisers.125
[95] While the hapū recognised the benefits of wind turbines, particularly as a clean fuel source, it noted challenges including the impact on local wildlife and of disposing of aging turbine blades.126 The assessment recorded that Ngāti Tu looked forward to working closely with Hiringa in developing a strategy around the decomposing/disposal of the wind turbine propeller and further consideration to the future planting of trees.127 The report noted that Hiringa had made a good effort to satisfy many of the issues raised in relation to the wind turbines thus far.128
[96] Ngāti Tu then set out the offer they had received from Hiringa and their response to that offer.129 In essence Hiringa stated it was seeking support from Ngāti Tu to ensure cultural elements had been identified and mitigated, as well as formal recognition that cultural elements had been addressed. In return Hiringa was offering a contribution to an environmental restoration project of importance to
121 Ngāti Tu CIA, above n 95.
122 At 4. Ngāti Tu Hapū is named after a tipuna, Tuhaereao. The boundary of Ngāti Tu is south of the Otakeho River to south of the Kapuni Stream — from the mountain to the sea. The boundaries are shared with Ngāti Haua and Ngāti Manuhiakai.
123 At 13.
124 At 13.
125 At 14.
126 At 16.
127 At 16–17.
128 At 19.
129 At 21.
Ngāti Tu, remunerated cultural monitoring and opportunities for employment with contractors during the earthworks stage, installation of a new solar energy system at the marae to fully cover electricity costs, and the development and implementation of a landscape plan/native planning scheme for the marae. Hiringa also offered to support development of an aquaculture project.
[97] In its response to the offer, Ngāti Tu acknowledged Hiringa sought to establish a relationship with them.130 They stated that after much discussion, as kaitiaki of the rohe they would require an annual royalty to fund immediate needs of the hapū in order to fully support the Project.131 However, they noted they were happy with the general direction in which Hiringa was heading.132
[98] The hapū said the goal of targeting zero carbon emissions was in line with a sustainable future. It concluded:133
Compared to many other provinces around Aotearoa, Taranaki is very lucky. There is an opportunity to make changes while we can, to look after the whenua and awa and it means being proactive and informative but also looking at more collaboration and changing the way we do things.
Treaty and cultural issues — the expert report
[99]I now turn to the Panel’s assessment of the Treaty and cultural issues.
Iwi concerns with the Project
[100] Counsel for the parties accepted that the general concerns of the hapū were accurately summarised by the Panel. Its report acknowledged the wide variety of views and responses by the different hapū as well as the concerns based on the whole of the Ngāruahine cultural landscape and its relationship with Taranaki Maunga, as set out above.134
[101]The Panel recorded the concerns of Te Korowai that the FTCA process:135
130 At 22.
131 At 22.
132 At 22.
133 At 23.
134 The Panel Report, above n 4, at [130].
135 At [131].
(a)removed the ability for Ngāruahine to participate in RMA decision-making processes as provided for in the Settlement Act;
(b)failed to account for the ongoing Taranaki Maunga Treaty Settlement and the relationship between all iwi of the region and Taranaki Maunga; and
(c)undermined the positive relationship Te Korowai had built with the South Taranaki District Council, which would otherwise under the standard resource consent processes have been crucial to decision-making.
[102] The Panel recognised concerns that had been expressed about the effect of the project on the Ngāruahine cultural landscape in general terms. It acknowledged that to the iwi, the Ngāruahine cultural landscape described both the physical area and the relationship and interaction between Ngāruahine and the environment.136 It noted the values within the landscape went beyond the visual aesthetics or concern for the natural involvement but included “the sense of space that underpins Ngāruahine identity”, a “cultural relationship … with the land, coastal and freshwaters, indigenous biodiversity, and Taranaki Maunga.”137
[103] The Panel further noted that Te Korowai had made its expectations around the protection of the Ngāruahine cultural landscape and significant relationship of Ngāruahine uri to Taranaki Maunga clear to Hiringa, and that its position regarding the wind turbines and occupation of the Ngāruahine cultural landscape was “based on protecting the rights and interests of all uri, whānau and hapū of Ngāruahine.”138
[104] The Panel recognised that the Te Korowai CIA had concluded the impact of the turbines was not de minimis but would be high and potentially lead to cumulative adverse cultural effects.139
136 At [153].
137 At [153].
138 At [154].
139 At [156].
[105] The Panel went on to note comments by Ngāti Ruanui about the dominance of the turbines on the landscape “with an adverse visual landscape impact that cannot be diminished or compensated.”140
[106] Due to the impossibility of offsetting any visual landscape impacts, the adverse impact of the turbines on the landscape could not be diminished or compensated by any other action.141
[107] The Panel recorded that the relationship of Ngāruahine to Taranaki Maunga, “their most significant wāhi tapu”, was “ancestral, spiritual and physical” and had a “direct effect on their wellbeing, sense of place and identity as Ngāruahine.”142 The Panel acknowledged that Te Korowai considered the turbines would obstruct and/or modify a space which is “crucial” to the sense of identity as Ngāruahine.143 The Panel went on to note, the Te Korowai CIA had acknowledged the turbines would be arranged in a way that best ensured the views to Tupuna Maunga from all marae and kura kaupapa within the rohe of Ngāruahine were maintained, in accordance with respective preferences expressed by hapū and in accordance with Policy 6.4 of the Ngāruahine draft kaitiaki plan.144
[108] The Panel also recorded the concerns expressed in the Te Korowai CIA as to what might occur if the project and technology was scaled up and extended.145 Hiringa had agreed to the conditions recommended by Te Korowai in its CIA146 as a result of these concerns.147
[109] Similarly, in relation to concerns expressed by Te Korowai and Ngāti Tu on the impact on freshwater resources, the Panel noted a freshwater ecological assessment had been undertaken and concluded that, subject to adherence to the mitigation
140 At [157].
141 At [157].
142 At [158].
143 At [158].
144 At [160].
145 At [163].
146 Namely the development with Ngāti Manuhiakai and Ngāti Tu of a turbine decommissioning plan to remove all of the turbines at the end of their useful life or 35 years and the development of an alternative site plan for replacement turbines on a site or sites coastward of State Highway 45.
147 At [163].
measures, any adverse effects on freshwater ecology would be appropriately avoided and/or mitigated.148
[110] The Panel had also accepted in its report, in relation to ecological effects, expert evidence that, contrary to earlier concerns raised by Ngāti Tu, the turbines did not pose a risk of collision to bats or migrating birds.149 The Panel noted that the position regarding the possible presence of lizards was “rather different” but that Hiringa had accepted a lizard management plan for rescue and relocation to be included as a condition.150
Assessment by the Panel of Māori and cultural values issues
[111] The Panel noted the site of the proposal was within the rohe of Ngāruahine and Ruahine as well as the rohe of the Te Rūnanga o Ngāti Ruanui Trust as the mandated iwi representing the 80,000 uri, 16 hapū and 10 marae affiliated to Ngāti Ruanui.151
[112] The engagement of the applicant with Te Korowai had begun in July 2019 and the advice from Te Korowai that the applicant should engage directly with the two hapū who had mana whenua in respect of the project site, being Ngāti Tu and Ngāti Manuhiakai.152 The Panel went on to note that Hiringa had engaged with both hapū since mid-2020 and had sought to address concerns with a view to establishing constructive long-term relationships. These resulted in the Ngāti Tu CIA and the letter of support from Ngāti Manuhiakai.
[113] The Panel recorded that Te Korowai had subsequently advised that all hapū of Ngāruahine should be considered potentially affected by the proposal, and that Te Korowai had been invited to nominate a member for the Panel in accordance with the Act.153
148 At [164]–[166].
149 At [82].
150 At [84].
151 At [110]–[114].
152 At [116].
153 At [118].
[114] The Panel noted it had sought comments from Te Korowai or Ngāruahine hapū, Ngāti Ruanui and the Taranaki Māori Trust Board.154 It noted the Te Korowai concern that the impacts of the project “are likely to affect all six hapū of Ngāruahine”, and acknowledged that hapū responses to the project varied widely, “ranging from total support, to a neutral stance, to opposition.”155
[115] The Panel recorded that Te Korowai had expressed its concern that the fast-track process had removed its ability to participate in the usual RMA decision-making process, failed to account for the ongoing Taranaki Maunga Treaty settlement and the relationship between all iwi of the region in Taranaki Maunga and had undermined the positive relationship that Te Korowai had built with the South Taranaki District Council which would otherwise have been crucial to decision-making under the standard resource consent processes.156 The Panel recorded the hapū responses as set out above.157
[116] The Panel noted that Te Korowai had conditionally supported the proposal as long as there was a clear commitment from the applicants to remove the wind turbines from the proposed site at the end of their useful life or a maximum of 35 years operation (whichever occurred earliest) based on their concerns regarding the protection of the unique Ngāruahine cultural landscape.158
[117] The Panel went on to look at the measures proposed by Hiringa for which Te Korowai indicated conditional support, including the provision of material support for STEM education pathways for Māori children such as a possible education van resource, and assessment of wind potential siting and development of monitoring with hapū.159
[118] The Panel then recorded the further conditions Te Korowai had recommended dealing with the end-of-life phase of the turbines, namely development with the mana whenua hapū of a decommissioning plan for the four turbines at the end of their useful
154 At [122].
155 At [130].
156 At [130]–[131].
157 At [133]–[136].
158 At [152].
159 At [138].
life or 35 years and an alternative site plan for any new replacement turbines on a site or sites coastward of SH45, which conditions Hiringa accepted.160
[119] The Panel also recorded that Te Korowai had sought a number of other conditions of consent, such as support for solar and renewable energy projects for the remaining marae, not increasing the water take under the existing resource consents and allowing for stream monitoring.161
[120] The Panel said that in its CIA Te Korowai had acknowledged that a relationship agreement had been developed with the applicants, but that the constraints of the fast-track process had not allowed for this agreement to be finalised and signed.162
[121] The Panel then went on to review the CIA of Ngāti Tu, noting that the hapū had acknowledged the effort made by Hiringa to satisfy its concerns163 and recorded the various measures that Hiringa had agreed to.
[122] The Panel noted that the core cultural principles of Ngāti Tu centred in mana whenua, mana awa and mana tangata, and the CIA had discussed each principle as they related to the application, recording the conclusions as follows:164
(a)With a request for a Fresh Water Ecology Report and/or Stream Health Monitoring Assessment Kit Test (SHMAK) as to the ecological health of waterways in their takiwā, noting they would support more trees/riparian planting along waterways, and acknowledging the applicants will replace any riparian plant removed on farm, to enable culverts for site access, at a 2:1 ratio and are giving consideration to go beyond single row planting.
(b)The advantages of the wind turbines cancel out the disadvantages, noting the applicants’ commitment to develop a decommissioning strategy to avoid disposal of the turbines in landfill.
(c)In terms of the effects on migrating birds, consideration should be given to future planting of trees and potential for increased activity of birdlife, in response to which the applicants offered to plant additional trees at locations around the site including in an area Ngāti Tu Hapū approves.
160 At [139]–[140].
161 At [141].
162 At [142].
163 At [145].
164 At [144].
[123] The Panel noted that Hiringa said that the project had considered “multiple factors to enable project viability while managing and minimising the impacts of the turbines and that site selected is the only identified viable site for the proposed project.”165
[124] The Panel specifically referred to comments from Te Korowai expressing their “fundamental concerns related to the fast-track process and the impact of the Project on their cultural landscape and relationship with the Maunga”, which Te Korowai considered were not addressed by the Project or draft conditions.166
[125] The Panel however took the view that many of the issues (including those related to wind turbine location and landscape) had already been addressed in the conditions which had been volunteered by Hiringa.167 It acknowledged the groundwork done by iwi and hapū in the application to address those concerns.168
[126] In the detailed feedback on the proposed conditions considered by the Panel in November 2021, Te Korowai recommended amendments to the conditions to ensure the provision of information to Te Korowai, Ngāti Tu and Ngāti Manuhiakai in relation to culverts and the lizard survey and sought a condition providing the opportunity for a representative from each of those hapū to be present during earthworks. The conditions were to be amended accordingly to cover these issues.169
[127] Other concerns expressed by Te Korowai related to air traffic safety and ongoing concern for the potential for the increased water abstraction. Conditions were imposed in relation to the former and the Panel noted any future abstraction would be the subject of a separate consenting process.170
[128] The Panel recorded that it had also considered, in addition to the CIAs, correspondence and comments received from iwi and hapū, iwi/hapū management
165 At [170].
166 At [171].
167 At [172].
168 At [172].
169 At [173].
170 At [174]–[175].
plans, Treaty settlements and the Treaty.171 The Panel recorded its satisfaction that the Te Korowai draft kaitiaki plan had “been appropriately taken into account and utilised by Te Korowai to develop their CIA, to which the applicants and the Panel have given significant consideration.”172
[129] With regard to the Ngāti Ruanui Environmental Management Plan, the Panel noted that the project in question was not in the takiwā of Ngāti Ruanui and the wind turbines had been designed and situated to minimise noise and negative visual impacts, with various forms of mitigation being agreed to and draft consent conditions providing for noise monitoring and reporting.173 Overall, the Panel said:
182. The applicants have acknowledged the cultural significance of Taranaki Maunga and the visual effects of the turbines and have sought to minimise as far as practicable the cultural and visual impacts and proposed a number of mitigation measures. These measures included relocating the turbines south of the Ballance Kapuni plant to PKW land, orientating the turbines in a north south configuration, and reducing the spacing between the turbines to reduce the visual impact on Maunga views from sensitive sites and the Manaia town.
Findings as to the impacts of the Project
[130] The Panel made a number of specific findings as to the effects of the turbines, including, in summary, the following:
(a)In terms of visual amenity,174 the effects on relevant marae were largely (in the case of five of the seven marae) assessed as “very low to low”.175 The visual effects on Te Aroha Marae (Ngāti Manuhiakai) were assessed as “high”, but that hapū had provided a letter of support for the project.176 The visual effects on Mawhitiwhiti Marae were assessed as “moderate”, but no official feedback was received from the relevant hapū, Kanihi Umutahi.177 The Panel had recorded that while the turbines were prominent when viewed from various places, the nature
171 At [177].
172 At [178].
173 At [179]–[181].
174 At [147]–[152].
175 At [150].
176 At [151].
177 At [152].
and scale of the landscape was such that the turbines could be successfully accommodated without significant adverse landscape and visual effects, subject to appropriate planting for the benefit of the small number of properties more directly adversely affected.178 A mechanism for offering and completing agreements in that regard was set out in the conditions.179
(b)Ecological effects were appropriately mitigated, as were the effects on freshwater ecology.180 These were the subject of conditions.
(c)Noise and related effects were negligible.181
(d)Effects on historic cultural values were not significant and the likelihood of recovering in situ archaeological evidence was assessed as low. An archaeological discovery protocol was put in place to some assurance to all parties in that respect.182
(e)There were no current Treaty negotiations directly relevant to the project site, though the Crown was in collective negotiations with Ngā Iwi o Taranaki to provide an apology and cultural redress in relation to Mt Taranaki, the Pouākai and Kaitake ranges (Ngā Maunga), which formed part of the settlements in respect of each iwi.183 The only relevant Treaty settlement of direct relevance to the project area was that in place with Ngāruahine and recorded in deeds of settlement.184
(f)There were no activities on land returned under a Treaty settlement,185 nor were there any cultural redress properties on which the Project impacted.186
178 At [73].
179 At [69].
180 At [79] and [87].
181 At [94].
182 At [215].
183 At [185].
184 At [183].
185 At [186].
186 At [187]–[188].
[131] The Panel recognised that its comments on the effects on the landscape generally did not address the adverse effects on the cultural landscape for iwi. This was, as noted, due to their connection with the Maunga and its influence on the wider landscape which held special value.187 To that extent, those effects overlapped with adverse cultural effects which the Panel addressed later.
Findings in relation to cultural issues
[132]In relation to cultural issues in play here, the Panel found that:
(a)It was satisfied the applicants had consulted all iwi and hapū with an interest in the project and a desire to determine how kaitiakitanga could be integrated into the project, to mitigate the cultural effects of the project and to find partnership opportunities that will benefit tangata whenua.188
(b)The applicants had resourced and supported the development of CIAs by iwi and hapū and genuinely sought to address the adverse issues of concern. These were largely supported by Te Korowai and Te Korowai’s recommendations and requested consent conditions had been adopted by the applicant.189
(c)The applicants had sought to minimise the impact on the cultural landscape of Ngāruahine and its hapū as far as possible. This included relocating and re-orientating the turbines so reducing the spacing between turbines.190
(d)Kaitiakitanga had been implemented in relation to practices such as site walkovers and karakia.191
187 At [153].
188 At [203].
189 At [204].
190 At [205].
191 At [206].
(e)There were no known archaeological sites on the application site and the proposal avoided sites and areas of cultural and spiritual significance with hapū observation of earthworks and ongoing environmental monitoring and discovery protocol in place.192
(f)The turbines would have an impact on the cultural landscape and special relationship Ngāruahine and their hapū had with Taranaki Maunga for the duration the projects were in place.193
[133] The Panel addressed the s 6 Treaty Clause and explained how that applied to the application. I deal with that in more detail below. Then it concluded:194
208. Whilst we acknowledge those concerns we are cognisant of the mitigation measures undertaken by the applicants and the conditions of consent which to a large extent have satisfied Te Korowai, Ngāti Tu and Ngāti Manuhiakai, to ensure that this development is constrained to its present intensity.
209. With the number of wind turbines to be erected at the PKW site limited to four, the removal of the turbines after the expiry of their useful life or after a maximum of 35 years of operation subject to a Decommissioning Plan prepared in collaboration with Te Korowai, Ngāti Tu and Ngāti Manuhiakai, including an Alternative Site Plan if necessary to identify an alternative site/s coastward of SH45, we are satisfied the concerns of the Iwi and Hapū regarding the protection of their cultural landscape have been addressed, while also recognising the importance of the Government’s commitment to renewable energy, including as contained in the NPS-REG.
210. While we acknowledge the concerns raised by iwi in relation to the fast-track consenting process, those are not matters the Panel has any jurisdiction over.
211. We acknowledge the applicants’ intention to continue to work closely with Te Korowai and the mana whenua hapū Ngāti Manuhiakai and Ngāti Tu, to ensure the cultural impacts of the Project are understood and respected, and to build a relationship that results in positive outcomes for the Hapū, Te Korowai, the broader community, and the environment. We also acknowledge the sincerity in the applicants’ response that they have developed a relationship agreement with Te Korowai and signed the agreement though the matter currently sits before Te Korowai’s Board to complete. Whether or not their Board or delegated authority agrees and executes that relationship agreement has no bearing on the decision we have reached.
192 At [206].
193 At [207].
194 At [208]–[211].
[134] The Panel went on to assess the Project against the relevant policy statements in planning instruments.
[135] It first noted that the National Policy Statement Renewable Energy Generation (NPS-REG) recognised the national significance of renewable energy generation and acknowledged the practical implications of achieving New Zealand’s target for electricity generation from renewable resources.195 It noted Policy C2 directed decision-makers that when considering any residual environmental effects of renewable energy generation activities that cannot be “avoided, remedied or mitigated, to have regard to offsetting measures.”196
[136] The Panel then noted the National Policy Statement-Freshwater Management (NPS-FM) entrenched the importance of freshwater management and the Project appeared to be consistent with those policies as any actual or potential effects were limited to the construction period.197 These were to be managed in accordance with best practice control and settlement control measures under the conditions, including those directed to maintaining fish passage and stream function, with riparian planting mitigation.198
[137] The Panel noted the New Zealand Coastal Policy Statement (NZCPS) was generally irrelevant to the Project, apart from erosion and sediment control plans, which had been provided for in effective conditions.199
[138] With respect to the Regional Policy Statement (RPS), the Panel concluded that the Project was consistent with Chapters 4 (Use and Development of Resources), 7 (Air and Climate Change), 14 (Energy) and 15 (The Built Environment). The Panel considered that conditions would ensure the Project conformed with Chapters 5 (Land and Soil), 11 (Natural Hazards), 6 (Freshwater) and 9 (Indigenous Bio-Diversity).
195 At [220].
196 At [220].
197 At [221].
198 At [221].
199 At [222].
[139] However, the Panel said it had reached the “unavoidable conclusion” that the Project was “not fully consistent” with all the objectives and policies of the RPS insofar as it related in particular to the Māori cultural and spiritual values associated with Taranaki Maunga.200 It specifically referred in this respect to the possible inconsistencies arising in relation to Chapter 10 (Natural Features and Landscapes, Historical Heritage and Amenity Value) and Chapter 16 (Statement of Resource Management of Significant to Iwi Authorities).201
[140] In particular, the Panel referred to the Natural Features and Landscapes (NFL) Policy 1, noting the “special scenic, recreational, scientific and Māori cultural and spiritual values associated with Taranaki Maunga” and NFL Policy 3, which concerned the protection of outstanding natural features and landscapes.202 The Panel also referred in this respect to the RPS as it related to issues of significance to iwi authorities.203 In particular the Relationship of Māori with Ancestral Lands, Water, Sites, Wāhi Tapu and other Taonga (REL) Objective 1, which is “to recognise and provide for the cultural and traditional relationship of Māori with their ancestral lands
… and other sites and taonga within the Taranaki Region” as well as REL Policy 3, relating to protecting wāhi tapu and other sites or features of historical and cultural significance from adverse effects of activities as far as practicable, REL Policy 5, recognising and providing for the cultural perspectives of iwi in relation to identifying and protecting outstanding natural features and landscapes, and REL Policy 7, providing for the maintenance and enhancement of water bodies which have special significance to iwi in a manner respectful of tikanga Māori. Finally, the Panel pointed to inconsistency with the provisions in the Cultural and Spiritual Values (CSV) relating to recognising cultural and spiritual values of tangata whenua and resource management processes,204 which it saw as “envisaging the importance of the Maunga to iwi given its cultural and spiritual significance.”205 In particular, CSV Objective 1 is to carry out management of natural and physical resources in the Taranaki region in a manner that takes into account the cultural and spiritual values of Taranaki iwi in a
200 At [225].
201 At [224].
202 At [224].
203 Taranaki Regional Council Regional Policy Statement for Taranaki (January 2010) at 127.
204 At 135.
205 The Panel Report, above n 4, at [224].
manner which respects and accommodates tikanga Māori, while CSV Policy 1 requires that the special relationship Taranaki tangata whenua have with Te Taiao (the environment) will be given particular consideration in the promotion of the sustainable management of the region’s resources.
[141]The Panel concluded:
225. The Panel considers that it is an unavoidable conclusion that the project is not fully consistent with all the objectives and policies of these two chapters of the RPS. However, for the reasons set out in effects on the cultural and heritage values the Panel does not consider such inconsistency as problematic.
[142]Having dealt with the other categories of effects, it said:
233. Once again, the only objectives and policies that would appear on their face to contain policies that might be inconsistent with the project are those relating to tangata whenua. To the extent that those policies require engagement and consultation, they appear to have been met. But again the real issue devolves to the substantive recognition and provision for the relationship of tangata whenua and their culture and traditions (including mauri) with their sites and areas of cultural and spiritual significance – namely the Maunga. The Panel accepts that a potential inconsistency arises in that regard and makes the same observation made in respect in of the RPS polices on those topics.
(d)the proposal for transition for the hydrogen from 100 per cent to urea to fuel over the five-year period was critical.
[298] In light of the small percentage of annual urea used immediately attributable to the Project and the intended transition, the Panel considered there was a danger that to decline the application on the basis of the end use of urea would be to “throw the baby out with the bathwater” relative to the “much more ambitious and significant” environmental gains connected with hydrogen fuel production for the increasing use of hydrogen fuel in heavy transport.403
401 As noted at [56] of the Panel Report, above n 4.
402 At [59]–[61].
403 At [62].
[299] The Panel therefore concluded that while the end use of urea had “some relevance to the process of transition”, this was not a reason to deny the availability of fast-track consenting, or to decline consent itself.
[300] On appeal, Greenpeace submitted that the Panel failed to take into account relevant considerations as required by sch 6 cl 31 because it failed to properly have regard to the environmental effects of the synthetic nitrogen (urea) fertiliser produced by the project being used on farms. Greenpeace also said that the Panel failed to properly take into account the effects of climate change under s 7(i) and failed to adequately assess the impacts of the Project on climate change in circumstances where the Project transition from fertiliser production to fuel production was not certain.
[301] Greenpeace submitted that without any definite commitment to transition completely within five years, and the vague evidence on the potential market for such fuel, it was logically impossible for the Panel to weigh up the environmental benefits of hydrogen fuel use against the environmental harms of urea use because it had no way to know which of those uses would dominate the life of the Project.
[302] The consideration of the end use of a product resulting from a resource consent has been the subject of consideration in a number of recent decisions, both in New Zealand and in the England and Wales courts.
[303] In R (Finch) v Surrey County Council, the Court of Appeal of England and Wales indicated that the assessment of “downstream” greenhouse gas emissions from the future combustion of refined oil products said to emanate from the development site fell to be considered on the basis of whether there was a sufficient degree of connection between the effects of the end use product and the project.404 In that case the downstream effects could reasonably be seen as far removed from the proposed development itself and not causally linked to it because of the series of intervening stages between the extraction of the crude oil and the ultimate generation of those emissions.405 The crude oil extracted at the application site could only find its way to
404 R (Finch) v Surrey County Council [2022] EWCA Civ 187.
405 At [66].
the various uses after it had passed through several other distinct processes and activities.406
[304] While care needs to be taken with different statutory frameworks, New Zealand’s approach is consistent with the England and Wales approach. In Clutha District Council v Otago Regional Council, the High Court considered an appeal against a resource application to take water from the Clutha/Mata-Au River for the purposes of a community water scheme which supplied water to rural and urban properties (including dairy farms) in the Clutha District.407 The consent was required as a controlled activity. The District Council contended that the end water use was not a relevant consideration for decision-makers to take into account. The Council’s primary submission was that the end use of the water (dairy shed wash) and the effects of that aspect of the activity on the environment “were too remote to be relevant considerations under the RMA.”408
[305] Nation J there held that the Environment Court was able to have regard to the end use of water subject to the “limits of nexus and remoteness”.409 His Honour referred to Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, which concerned the export of spring water overseas and the subsequent disposal of plastic bottles.410 The Court in that case quoted the Environment Court decision on appeal in that case as follows:411
[61] Nexus … refers to the degree of connection between the activity and the effect, while remoteness refers to the proximity of such connection, both being considered in terms of causal legal relationships rather than simply in physical terms. Experience indicates that these assessments are likely to be in terms of factors of degree rather than of absolute criteria and so be matters of weight rather than intrinsically dispositive of any decision…
[306] In this respect, in Clutha District Council v Otago Regional Council, Nation J found that the end use of water for dairy shed wash and its subsequent discharge to the
406 At [65].
407 Clutha District Council v Otago Regional Council [2022] NZHC 510, [2022] NZRMA 242.
408 At [42].
409 At [43].
410 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, [2021] NZRMA 76.
411 At [81], citing Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 at [61].
environment “had a sufficient nexus to the take and were not so remote as to be matters which the Environment Court could not consider when fixing the duration for the water take consent for the scheme.”412 As his Honour found, “[t]he Court therefore had to have regard to these effects under s 104(1)(a) of the RMA.”413
[307] Hiringa pointed to the decision in Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, referred to above.414 In that case the High Court found no error of law in the Environment Court’s analysis of legal principles, which included the following statement:415
[60] The ambit of the RMA in the context of considering an application for resource consent under s 104(1)(a) requires consideration of an effect of allowing the activity. It does not extend as far as considering any effect on the environment which, given the broad inclusive definitions of those words, might be anything at all. There must be a causal relationship between allowing the activity and the effect: if an effect would occur unchanged regardless of whether the activity was allowed or not, then such an effect would not be within the scope of s 104(1)(a) of the RMA. If the extent or degree of such an effect would be altered by allowing or refusing the activity, then that effect would be relevant at least in terms of that change but its nexus and remoteness would need to be assessed.
[308] Hiringa argued that the downstream effects of the use of urea were independent of the effects associated with the manufacturing of urea (or, more specifically, the way in which it was manufactured) and that the project would make no appreciable difference to the overall use of urea nor have any perceptible adverse effects on the environment different from those already existing. It further said that the use of urea was managed by a range of regulatory and industry-based controls, including the Resource Management (National Environmental Standards for Freshwater) Regulations 2020. Hiringa had submitted to the Panel that it was not open to it to effectively prohibit or control urea use in relation to an application to establish a renewable wind energy facility with associated hydrogen production, storage, offtake
412 Clutha District Council v Otago Regional Council, above n 407, at [52].
413 At [52].
414 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council (HC), above n 410. Leave to appeal the decision was granted by the Court of Appeal on 29 July 2021 on five questions, including whether the end use was beyond scope for consideration in the application for consents and land use activities: Te Rūnanga O Ngāti Awa v Bay of Plenty Regional Council [2021] NZCA 354. The approved question was amended in a decision delivered on 9 September 2021: Te Rūnanga O Ngāti Awa v Bay of Plenty Regional Council [2021] NZCA 452.
415 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council (HC), above n 410, at [82], citing (at [81]) Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council (EnvC), above n 411, at [60].
and refuelling infrastructure. A prohibition on the production of urea would require direct legislative intervention at a national level.416
[309] Hiringa provided evidence to the Panel that the Project itself would not increase the use of urea in New Zealand. Hiringa told the Panel in this respect that “[t]he use and rate of application of urea is subject to a range of regulatory and industry based factors, which are independent of the way in which urea is manufactured.” Hiringa advised the Panel, however, that the Project would “enable imported urea to be replaced with lower emission domestically produced urea.”417
[310] In this case, Greenpeace argued that the basis upon which the Panel made its decision was factually incorrect, namely that the imported fuel and the amount of urea being maintained is steady. The evidence before the Panel upon which it based its analysis included evidence from Balance which supports its approach.418 The Panel undertook a balancing exercise, in which it considered the end use of urea.
[311] Greenpeace submitted that the analysis of the urea production, and the suggestion that it was, due to an increase in the use of urea, able to be produced more cheaply, supported its position that the end use should have been given greater weight by the Panel. However, it was open to the Panel to accept the evidence it had before it that the casual relationship between the activity and the indirect adverse effect would unlikely be altered by allowing or refusing the activity. The weight on the effect was for the Panel.419
416 This is work being undertaken by the Government to reduce greenhouse gas emissions in the primary sector. This has subsequently given rise to the He Waka Eke Noa: Primary Sector Climate Action Partnership, a collaboration between government, the primary sector, and Māori agribusiness formed in 2019 to, according to its recent report, “design a practical, credible, and effective system for reducing emissions at farm level, as an alternative to government policy to bring agriculture into the New Zealand Emissions Trading Scheme”: He Waka Eke Noa: Primary Sector Climate Action Partnership Recommendations for pricing agricultural emissions: Report to Ministers (31 May 2022) at 1 and 4.
417 Applicants’ Responses to Comments, attached in a letter from Catherine Clennett (Chair of Hiringa Energy Ltd) and Andrew Clennett (CEO of Hiringa Energy Ltd) to the Expert Consenting Panel (2 November 2021) at 10.
418 Letter from Mark Wynne (CEO of Ballance Agri-Nutrients) to the Expert Consenting Panel (2 November 2021).
419 Te Runanga o Ngāti Awa v Bay of Plenty Regional Council (HC), above n 410, at [60].
[312] Greenpeace also said the failure to ensure the transition would damage Māori interests through the contribution of that fertiliser to the harmful effects of climate change and through water pollution. Therefore, it said, in failing to require the transition through the imposed conditions, the Panel acted inconsistently with the principles of the Treaty of Waitangi.
[313] In this case the end use effects are well down the chain. The emissions are said to flow from the use of fertiliser produced with the application of energy from the project on pasture, the ingestion of that pasture and the result an increase in numbers grazing which in turn produce greenhouse gases. The consideration by the Panel of that effect in this case in these circumstances.
[314] The Panel was not required to go into detail in its reasons on this aspect. Its reasons were sufficient given the statutory requirements on the reasons required in the report. It is apparent that it took the view the indirect effect should not be given determinative weight in the circumstances of the case.
[315] I am satisfied that the Panel did properly consider the end use of urea and related environmental effects. It was entitled to find on the basis of the evidence before it, as it did, that the end use of the urea produced — in view of the transition conditions I have considered above — did not have a sufficient nexus to the environmental effects complained of sufficient to decline the application. Greenpeace seeks to revisit the merits of the Panel’s assessment.
Conclusion as to environmental issues
[316] Overall, in relation to the environmental issues raised, I am satisfied the Panel made no error. In particular, I am satisfied the conditions imposed by the Panel, though they did not provide a hard time limit for transition to use of the hydrogen in the transport sector within five years, were adequate. I am satisfied the Panel made no errors in its treatment of these considerations.
Summary
[317] This appeal was brought on the following grounds of appeal, that the Panel erred in law in:
(a)finding that the proposal was “entirely consistent” with pt 2 of the RMA, and in particular ss 6(e) and s 7(a);
(b)failing to consider the cultural landscape of Ngāruahine as a whole;
(c)failing to consider the precedent effect of the proposal to be an adverse effect over the life of the project that could not be mitigated;
(d)concluding that the project has no impact on two cultural redress properties;
(e)determining that a hearing was not required on any issue without giving reasons; and
(f)finding that a critical reason for approving the project was 100 per cent transition to use of “green hydrogen” for transport.
[318] I granted leave to argue on appeal whether the Panel in fact applied the Treaty clause under provisions under s 6 of the FTCA, and as to the Panel’s consideration of the end use of the green energy created by the Project as well as its alleged failure to adequately ensure transition to use of the hydrogen for fuel transport occurs within the five-year timeframe.
[319] In respect of the Treaty and cultural issues canvassed in this appeal, I am satisfied that both procedurally and substantively the Panel performed its functions and exercised its powers in a manner “consistent with” the principles of the Treaty and Treaty settlements, as it was required to do under s 6 of the FTCA. In respect of the environmental issues raised on appeal, I am similarly satisfied that the Panel did not err.
[320]In summary, those conclusions on each ground of appeal are as follows.
[321] In relation to the first ground, ground (a), I am satisfied that in finding that the application was “entirely consistent” with pt 2 of the RMA, in particular ss 6(e) and 7(a), the Panel acted in a manner “consistent with” the principles of the Treaty and Treaty settlements. The Panel correctly identified and engaged with the cultural concerns of Te Korowai and Ngāti Tu. It was satisfied the application taken with the conditions it imposed, many of which had been proposed by Te Korowai, adequately dealt with these concerns sufficiently to satisfy the Panel as to consistency with Treaty Principles and that cultural requirements of pt 2 of the RMA were met. The Panel acknowledged the effort Hiringa had gone to in order to ensure it had consulted all iwi and hapū with an interest in the project, to determine how kaitiakitanga could be integrated into the project, to mitigate the cultural effects of the project and to build a relationship that would result in positive outcomes for the hapū, Te Korowai, the broader community and the environment.
[322] In relation to ground (b), I am satisfied the Panel did not fail to consider the cultural landscape of Ngāruahine as a whole. The Panel canvassed the material presented to it in detail, in particular in this regard the CIAs, which had been funded by Hiringa but prepared by Te Korowai and Ngāti Tu respectively. The Panel recognised the significance of the cultural landscape to the hapū and I am satisfied it acknowledged the cultural effects as conveyed Te Korowai and the hapū were determinative.
[323] With regard to ground (c), failing to consider the precedent effect of the proposal to be an adverse effect over the life of the project that could not be mitigated, I am satisfied the Panel did properly assess the application on its merits and on the evidence before it as it did, which in particular included limiting the number of turbines to four and providing for appropriate decommissioning of the turbines.420
[324] In relation to ground (e), the Panel’s determination not to hold a hearing without giving reasons for that decision, I am satisfied that there was no requirement for the Panel to give reasons for not holding a hearing. No party had made any specific
420 Ground (d), relating to cultural redress properties, was not pursued.
request for a hearing. The Panel gave adequate reasons for its decision to grant consent.
[325] The final ground, ground (f), generally concerns the Panel’s consideration of the transition of use for urea to hydrogen fuel, which it considered to be a critical reason for approving the application. The Panel acknowledged that it was difficult to see how the fast-track consenting process could be justified absent the timeframe for the transition. I am satisfied the Panel did not err in finding this to be a critical reason for approving the project. Though the conditions imposed in this respect did not impose a “hard” requirement to ensure that the transition would occur within five years, I am satisfied the conditions imposed, as well as the evidence before the Panel itself, ensured that the transition would occur in a timely manner, relevant to the five-year timeframe, with appropriate review by the South Taranaki District Council. There was no unlawful delegation, nor were the transition conditions, which were certain and not unreasonable, ultra vires.
[326] The final outstanding matter, on which I granted leave to appeal despite it not being raised in the initial grounds of appeal, relates to the Panel’s alleged failure to consider the environmental effects of the end use of the hydrogen, and associated conditions. I am satisfied the Panel considered the end uses of the urea produced.
Conclusion
[327]The appeal is dismissed.
Costs
[328] Any application for costs should be made by application and supporting submissions within five days of the date of this decision. Any responses should be filed within a further five days and any reply within a further three days.
Grice J
Solicitors:
Govett Quilliam, New Plymouth
Attachment 1 — Marae and Area with Direct Line of Sight
Marae and Area with Direct Line of Sight
Attachment 2 — Excerpt from Appendix 2 conditions (relating to cultural conditions)
General
(1) The construction, operation and maintenance of the Kapuni Green Hydrogen Project shall be undertaken in general accordance with the information provided in “Kapuni Green Hydrogen Project Resource Consent Application and Assessment of Environmental Effects” dated August 2021 and any other documentation relevant to the resource consent applications. In the event of any conflict or discrepancy between these documents and the conditions of this resource consent, the conditions shall be determinative.
Wind turbine characteristics
(8) The maximum number of wind turbines that may be installed on the Wind Turbine Site … shall not exceed 4.
Culverts
(36)Within 20 working days after completion of the installation of the culvert on the Wind Turbine Site, the consent holder shall collect and provide the following information, together with the time and date of its collection, to the Chief Executive of the Taranaki Regional Council (and, with respect to the information listed in paragraphs (e), (f) and (g), to Te Korowai o Ngāruahine Trust, Ngāti Tu and Ngāti Manuhiakai):
(a)the type of the structure;
(b)the geographical co-ordinates of the structure;
(c)the flow of the river or connected area (whether none, low, normal, or high);
(d)at the structures location:
i.the width of the river or connected area at the water’s surface; and
ii.the width of the bed of the river or connected area;
(e)whether there are any improvements to the structure to mitigate any effects the structure may have on the passage of fish;
(f)whether the structure protects particular species, or prevents access by particular species to protect other species;
(g)the likelihood that the structure will impede the passage of fish;
(h)visual evidence (for example, photographs) that shows both ends of the structure, viewed upstream and downstream;
(i)the culvert’s asset identification number, if known;
(j)whether the culvert’s ownership is;
i.held by the Crown (for example, the Department of Conservation), a regional council, a territorial authority, the New Zealand Transport Agency, or KiwiRail Holdings Limited; or
ii.held publicly by another person or organisation; or
iii.held privately; or
iv.unknown;
(k)the number of barrels that make up the culvert;
(l)the culvert’s shape;
(m)the culvert’s length;
(n)the culvert’s diameter or its width and height;
(o)the height of the drop (if any) from the culvert’s outlet;
(p)the length of the undercut or erosion (if any) from the culvert’s outlet;
(q)the material from which the culvert is made;
(r)the mean depth of the water through the culvert;
(s)the mean water velocity in the culvert;
(t)whether there are low-velocity zones downstream of the culvert;
(u)the type of bed substrate that is in most of the culvert;
(v)whether there are any remediation features (for example, baffles or spat rope) in the culvert;
(w)whether the culvert has wetted margins;
(x)the slope of the culvert;
(y)the alignment of the culvert; and
(z)the numbers of each other type of structure to which this subpart applies, or of wingwalls or screens, on the culvert.
(45) The consent holder must ensure that a plan is implemented to monitor and maintain the culvert so that fish passage is maintained and does not reduce over time … the consent holder shall prepare a plan for that monitoring and maintenance …
Lizard survey
(73)Upon finalisation of infrastructure plans and associated extents and locations of vegetation clearance (including associated grassland), including the earthworks footprint, a lizard survey must be conducted in these clearance areas by a suitably qualified and experienced herpetologist prior to works commencing. The lizard survey report shall be provided to the Department of Conservation, the Group Manager – Environmental Services, South Taranaki District Council, the Chief Executive, Taranaki Regional Council and Te Korowai o Ngāruahine Trust, Ngāti Tu and Ngāti Manuhiakai.
Archaeology
(88)The Archaeological Discovery Protocol will apply to the unexpected discovery of artefacts or archaeological material encountered during earthworks undertaken as part of this project …
Cultural
(89)The consent holder shall ensure that site inductions for all contractors working on the Kapuni Green Hydrogen Project include a cultural component which provides details of mana whenua Iwi and Hapū for the project area, the cultural significance of the project area to mana whenua and the protocols in place related to earthworks monitoring and archaeological discovery.
(90)The consent holder shall provide Ngāti Tu and Ngāti Manuhiakai Hapū an opportunity to perform a karakia to bless the project site/s prior to works commencing.
(91)The consent holder shall provide an opportunity for a representative both of Ngāti Tu and Ngāti Manuhiakai Hapū to be present on site during any earthworks for the Kapuni Green Hydrogen Project.
Community consultation
(99)At least 40 working days prior to the commencement of construction works authorised as part of this resource consent, the consent holder shall establish and co-ordinate a Consultative Group for the Kapuni Green Hydrogen Project. Subject to the conditions below, this group is to be consulted, as a minimum, at least six monthly during the construction phase and over the first two years of the operation of the Kapuni Green Hydrogen Project. Thereafter, the frequency of consultation is to be determined by a majority of the Consultative Group itself. Individual Consultative Group members may, with the agreement of the Group Manager – Environmental Services, South Taranaki District Council, call meetings at shorter intervals to deal with any interim matters that need to be addressed before the next scheduled meeting.
(100)The objective of the Consultative Group will be to facilitate information flow between the consent holder’s management team and the community and will be an on-going point of contact between the consent holder and the community. The functions of the Consultative Group shall also include acting as a forum for relaying community concerns about the construction and on- going operation of the Kapuni Green Hydrogen Project to the consent holder’s
on-site management team, developing acceptable means of addressing (where possible) and managing those concerns, and reviewing the implementation of measures to resolve and manage community concerns.
(101)The consent holder shall be responsible for convening the meetings of the Consultative Group and shall cover the direct costs associated with the establishment and operation of the meetings. The consent holder shall be responsible for the keeping and distribution of the Consultative Group’s minutes to all participants in the Consultative Group. A person independent of the consent holder shall chair the meeting. The chair of the Consultative Group shall be appointed by the Group Manager – Environmental Services, South Taranaki District Council.
(102)The consent holder shall notify its intention to establish a Consultative Group for the Kapuni Green Hydrogen Project by public notice. The consent holder shall invite, as a minimum, the following parties to participate in the Consultative Group:
(a)A representative of property owners and occupiers on local roads surrounding the Wind Turbine Site identified for use by construction traffic;
(b)A representative of property owners who own land adjacent to the site as identified in BTW drawing 191149 – GIS – 105 Sheet 1 Rev 5;
(c)An elected representative of the South Taranaki District Council; and
(d)A representative each from Ngāti Tu and Ngāti Manuhiakai Hapū.
(103)No owner or occupier of any property on which the Kapuni Green Hydrogen Project is located may be a member of the Consultative Group. The consent holder shall not be in breach of this condition if any one or more of the parties specified above do not wish to be members of the Consultative Group or to attend any particular meeting.
(104)The Consultative Group shall cease to exist when a 75% majority of the Consultative Group vote that it is no longer necessary.
(105)The consent holder shall maintain and keep a Complaints Register to record any complaints about construction works and operation of the Kapuni Green Hydrogen Project received by the consent holder in relation to traffic, noise, dust, television or radio reception interference, shadow flicker or any other environmental effects. The register shall record, where this information is available, the following:
(a)The date, time and duration of the incident that resulted in the complaint;
(b)The location of the complainant when the incident was detected;
(c)The possible cause of the incident; and
(d)Any corrective action taken by the consent holder in response to the complaint, including the timing of the corrective action.
(106)The Complaints Register shall be available to staff and authorised agents of the South Taranaki District Council and to members of the Consultative Group at all reasonable times upon request. Complaints received by the consent holder that may infer non-compliance with the conditions of this resource consent shall be forwarded to the Group Manager – Environmental Services, South Taranaki District Council within 48 hours of the complaint being received.
Decommissioning and site rehabilitation
(107)The wind turbines shall be removed from the site, either at the end of their useful life or the end of the term of this consent, whichever occurs earliest, in accordance with a certified Decommissioning Plan as per Conditions 108-110.
Note: For the purposes of this consent, “useful life” means the period of time that the wind turbines remain fit for purpose and structurally sound. For the avoidance of doubt, structurally sound means free from flaw, defect or deterioration to the extent that the turbines remain capable of adequately and safely accommodating the wind turbine blades and motors. (When the turbines are rendered obsolete and uneconomic to modify or repair or when a period of 35 years has passed, they are to be decommissioned from the site in accordance with the conditions of this consent).
(108)At least 80 working days prior to the commencement of decommissioning of the wind turbines authorised as part of this resource consent, the consent holder shall submit a Decommissioning Plan to the Group Manager – Environmental Services, South Taranaki District Council for endorsement acting in a technical certification capacity to certify that the plan meets the objectives in this Condition 108 (a) – (c). The Decommissioning Plan shall be prepared by a suitably qualified and experienced person and provide for the following objectives:
(a)Decommissioning of the wind turbines and associated infrastructure in a manner that complies with all legislative requirements;
(b)Leaving the land in a condition that is safe and suitable for the subsequent land use (as agreed with the landowner); and
(c)Ensuring that the components and infrastructure are disposed of in a way that maximises re-use and recycling. For any parts that cannot be reused or recycled, ensuring that they are not sent to landfill but are disposed of in an environmentally responsible way in accordance with industry best practice.
(109)The Decommissioning Plan shall include but not be limited to:
(a)Details on all infrastructure to be decommissioned, including details, method and location of reuse, recycling or disposal and the reasons why the options have been chosen;
(b)Details of specific infrastructure to remain on-site post-closure and reasons why it will remain on site;
(c)Scheduling and timing for decommissioning;
(d)Details for finished ground cover at completion of decommissioning and future intended land use;
(e)A Transport Plan for the transport of wind turbine components and any other infrastructure off site addressing the matters in Condition 65
(a) – (m);
(f)Details of management, any ongoing maintenance, monitoring and reporting proposed by the consent holder to ensure post-closure activities are carried out in accordance with the conditions of this resource consent.
(110)The Decommissioning Plan shall be prepared in collaboration with Te Korowai o Ngāruahine Trust, Ngāti Tu and Ngāti Manuhiakai, and evidence of this shall be submitted to the Group Manager – Environmental Services, South Taranaki District Council. If hydrogen production associated with the Project is to continue at the Ballance site after the duration of the consent, the Decommissioning Plan shall also include an Alternative Site Plan that is to be prepared in collaboration with Ngāti Tu and Ngāti Manuhiakai. The Alternative Site Plan shall, as a minimum, contain a process to identify an alternative site, or sites, situated coastward of SH45 to locate any replacement wind turbines on.
Review
(111)Pursuant to Sections 128 to 131 of the Resource Management Act 1991, the South Taranaki District Council or the Taranaki Regional Council may, 1 year after the commencement of this resource consent, and at 5 yearly intervals thereafter, serve notice on the consent holder of its intention to review any or all of the conditions of this resource consent for any of the following purposes:
(a)To review the effectiveness of the conditions of this resource consent in avoiding, remedying or mitigating any adverse effects on the environment that may arise from the exercise of this resource consent (in particular, the potential adverse environmental effects in relation to ecology, archaeology, noise, hazardous substances, earthworks, traffic and roading, visual, landscape and amenity effects);
(b)To address any adverse effects on the environment which have arisen as a result of the exercise of this resource consent that were not anticipated at the time of commencement of this resource consent, including addressing any issues arising out of complaints; and
(c)To review the adequacy of, and necessity for, any of the monitoring programmes or management plans that are part of the conditions of this resource consent.
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