Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council

This case involved four appellants, Te Rūnanga o Ngāti Awa, Sustainable Otakiri Inc, Ngāti Pikiao Environmental Society Inc, and Te Rūnanga o Ngāi Te Rangi Iwi Trust, who sought leave to appeal a judgment of the High Court. The High Court had upheld the Environment Court's decision to dismiss the parties' appeals against the granting of resource consents to Creswell NZ Ltd by the Bay of Plenty Regional Council and the Whakatāne District Council. The appellants sought leave to amend the approved questions of law in relation to the appeal. The legal issues the Court had to decide were whether the proposed amendments to the questions of law were appropriate, and whether a new question should be added to the appeal.

The Court found that the proposed amendment to the first question of law was appropriate, as it clarified the scope of the question in relation to the environmental effects of the end use of the water. The Court declined to add a new question about the cultural effects of exporting water as an end use, as it would require an assessment of the evidentiary findings on those effects, which the Court had previously declined to consider. The Court also found that the proposed new question incorrectly assumed that the Environment Court had not considered the cultural effects of exporting water. The Court concluded that the factual findings of the Environment Court on the tikanga evidence they preferred were not material to their decision, and that any adverse effects perceived by members of Ngāti Awa had not been shown to be of a nature and scale that warranted refusing consent on that basis alone.

The Court granted the applications by Ngāti Awa and Sustainable Otakiri Inc for leave to amend the first approved question of law, and set aside and substituted the first approved question of law with the following: Did the High Court err in finding that the Environment Court was correct to conclude that the effects on the environment of end use (i.e. export and use of plastic bottles) were beyond the scope of consideration in relation to the second respondent’s application for consents to take water, and those relating to land use activities? The Court declined to add a new question to the appeal, and declined to grant leave to appeal on that question to Ngāti Pikiao and Ngāi Te Rangi.