Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council

[2021] NZCA 354

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA48/2021
 [2021] NZCA 354

BETWEEN	TE RŪNANGA O NGĀTI AWA Applicant
AND	BAY OF PLENTY REGIONAL COUNCIL First Respondent CRESWELL NZ LIMITED Second Respondent

CA49/2021
BETWEEN	SUSTAINABLE OTAKIRI INCORPORATED Applicant
AND	WHAKATANE DISTRICT COUNCIL First Respondent CRESWELL NZ LIMITED Second Respondent

CA60/2021
BETWEEN	NGĀTI PIKIAO ENVIRONMENTAL SOCIETY INCORPORATED Applicant
AND	BAY OF PLENTY REGIONAL COUNCIL First Respondent CRESWELL NZ LIMITED Second Respondent

CA61/2021
BETWEEN	TE RŪNANGA O NGĀI TE RANGI IWI TRUST Applicant
AND	BAY OF PLENTY REGIONAL COUNCIL First Respondent CRESWELL NZ LIMITED Second Respondent

Court:	Clifford and Courtney JJ
Counsel:	H K Irwin-Easthope and K J Tarawhiti for Applicant in CA48/2021 J D K Gardner-Hopkins for Applicant in CA49/2021 R B Enright and R G Haazen for Applicant in CA60/2021 J M Pou for Applicant in CA61/2021 M H Hill for First Respondent in CA48/2021, CA60/2021 and CA61/2021 A M B Green and M S Jones for First Respondent in CA49/2021 J B M Smith QC and D G Randal for Second Respondent in CA48/2021, CA49/2021, CA60/2021 and CA61/2021
Judgment: (On the papers)	29 July 2021 at 10.30 am

JUDGMENT OF THE COURT

The applications for leave to appeal by each of the applicants on questions of law are granted in accordance with [4]–[5] of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

1. Te Rūnanga o Ngāti Awa, Sustainable Otakiri Inc, Ngāti Pikiao Environmental Society Inc, and Te Rūnanga o Ngāi Te Rangi Iwi Trust bring applications for leave to appeal a judgment of the High Court.[1]  That judgment upheld the Environment Court’s decision to dismiss the parties’ appeals against the granting of resource consents to the respondent, Creswell NZ Ltd, by the Bay of Plenty Regional Council and the Whakatane District Council.[2] 

   [1]Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 338 [High Court judgment]. We refer to the applicants as Ngāti Awa, Sustainable Otakiri, Ngāti Pikiao and Ngāi Te Rangi respectively.

   [2]Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019) 21 ELRNZ 539 [Environment Court judgment].

2. Creswell NZ Ltd opposes the applications.  The Bay of Plenty Regional Council and the Whakatane District Council abide. 

3. Each of the 15 questions of law for which leave is sought are set out in the appendix to this judgment.

4. We grant leave on the following five questions:

   (1)Did the High Court err in finding that the Environment Court was correct to conclude that the effects on the environment of using 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?

   (2)Did the High Court err in finding that the Environment Court did not need to seek further evidence, or decline the second respondent’s application for consent, in circumstances where the Court had evidence as to the scale of the bottling operation but no evidence as to the scale or adverse effects of plastic bottles being discarded?

   (3)Did the High Court err in finding that the Environment Court did not need to have recourse to pt 2 of the Resource Management Act 1991 and, in particular (i) that the relevant planning instruments provided adequate coverage of the provisions of pt 2,[3] and (ii) that an assessment of sustainability by itself was sufficient to address relevant cultural effects, so that no further reference to pt 2 was needed in that context.[4]

   (4)Did the High Court err in finding that the Environment Court correctly determined that the activity status of the second respondent’s proposal was a discretionary “rural processing activity”, rather than a non‑complying “industrial activity” including “manufacturing”, under the terms of the Whakatane District Plan?

   (5)Did the High Court err in finding that the Environment Court correctly classified the respondent’s proposal as an expansion of an existing use of land, and therefore a discretionary activity under s 127 of the Resource Management Act 1991, rather than as a new activity falling for consideration as a non-complying activity under s 88 of that Act?

   [3]See High Court judgment, above n 1, at [178] and [188]. 

   [4]See Environment Court judgment, above n 2, at [104]–[107]. 

5. As can be seen those questions differ from the questions put to us by the applicants.  We observe:

   (1)At present, we grant leave:

   (i)On question 1, to Ngāti Awa and Sustainable Otakiri;

   (ii)On question 2, to Ngāti Awa and Sustainable Otakiri;

   (iii)On question 3, to Ngāti Awa, Ngāti Pikiao and Ngāi Te Rangi; and

   (iv)On questions 4 and 5, to Sustainable Otakiri. 

   (2)We decline to grant leave on the challenges to the correctness of the preferred evidence as regards the tikanga effects of the proposal.  We do so on the basis of the following observations of the Supreme Court in Takamore v Clarke:[5]

   [95]     What constitutes Maori custom or tikanga in the particular case is a question of fact for expert evidence or for reference to the Maori Appellate Court in an appropriate case.[6]  A court asked to identify the content of custom by evidence is not engaged in the same process of interpretation or law‑creation, as is its responsibility in stating the common law. …  

   [5]Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 per Elias CJ.

   [6]Te Ture Whenua Maori Act 1993, s 61. 

6. We invite the applicants to confer.  We do so because we recognised considerable overlap on the questions of law as put by the applicants for which a grant of leave was appropriate, which we endeavoured to resolve in our reformulation of the questions.  If issues arise, leave is reserved.

7. It is likely that some form of pre-appeal conference may be useful to fix the shape of the appeal and the allocation of roles.  That can be a matter for the panel to which this appeal will be assigned. 

Result

1. The applications for leave to appeal by each of the applicants on questions of law are granted in accordance with [4]–[5] of this judgment.

Solicitors:

Whāia Legal, Wellington for Applicant in CA48/2021
Linwood Law Ltd, Christchurch for Applicant in CA49/2021
Tu Pono Legal Ltd, Rotorua for Applicant in CA60/2021 and CA61/2021
CooneyLeesMorgan, Tauranga for First Respondent in CA48/2021, CA60/2021 and CA61/2021
Brookfields, Auckland for First Respondent in CA49/2021
Buddle Findlay, Wellington for Second Respondent in CA48/2021, CA49/2021, CA60/2021 and CA61/2021

Appendix

Applicant	Question
(1)	Ngāti Awa	Did the High Court err in accepting that the analysis of the Environment Court Majority with respect to tikanga and Te Tiriti o Waitangi considerations in the context of end-use was not flawed?
(2)	Ngāti Awa and Sustainable Otakiri	Whether or not the effects of plastic bottles are relevant to decision making under the Resource Management Act 1991 (RMA), and, if so: (i)     To what extent are they relevant (including effects outside New Zealand); and (ii)     How much information an applicant for a major water bottling proposal needs to provide?
(3)	Ngāti Awa	Did the High Court err in upholding the Environment Court Majority’s decision [declining] to have recourse to Part 2 of the RMA? And, in particular: (i)     Did the High Court err in its approach to Part 2 [in] not requiring reversion back in the context of an incomplete planning framework and tikanga being engaged; and (ii)   Did the High Court err in holding that the Environment Court Majority did not err in failing to consider relevant Treaty principles under section 8?
(4)	Ngāti Awa	Did the High Court err in concluding that the errors alleged were not material to the Environment Court Majority’s ensuing analysis and ultimate decision?
(5)	Sustainable Otakiri	Is the extraction of water a “land use” activity?
(6)	Sustainable Otakiri	If the extraction of water is a land use activity, under the Whakatane District Plan: (i)     does it have a functional need to occur in a rural location?; (ii)    is it also a “primary productive use”?; and (iii)   if it is a “primary productive use” is it also a “rural processing activity”?
(7)	Sustainable Otakiri	In a water-bottling proposal, is the principal land use: (i)     the extraction of water; or (ii)    the bottling process including any integral bottle manufacturing?
(8)	Sustainable Otakiri	Is a resource consent required for an ancillary activity as well as the principal activity?
(9)	Sustainable Otakiri	Is s 127 available to authorise the construction of entirely new buildings and undertaking of entirely new activities, such as: (i)     a new (additional) 16,800 square metre building (with two storeys); (ii)   a container depot (and associated machinery); and (iii)     a new plastic bottle manufacturing plant (an industrial activity) when the original consent did not include such buildings or activities?
(10)	Sustainable Otakiri	Is s 127 available to authorise the replacement of all the conditions of a resource consent (four) with an entirely new and expanded set of conditions (69), such that the consent is in fact an entirely new or replacement consent?
(11)	Sustainable Otakiri	Even if the essential activity remains the same, can the scale of increase of effects disqualify use of s 127 and instead require a fresh application to be made where the increased effects are disproportionate to the effects authorised by the original consent?
(12)	Ngāti Pikiao	Did the High Court err by finding that it was not mandatory for the Environment Court to consider: (i)     Section 8 of the RMA; (ii)    Relevant Treaty principles relating to the exercise of rangatiratanga, tikanga, and the duty of active protection, by Ngāti Awa and Ngāti Pikiao over their freshwater resources and taonga, for their regional consents.
(13)	Ngāti Pikiao	Did the Environment Court and High Court err in failing to consider Ngāti Pikiao’s Treaty rights and interests, including rangatiratanga, active protection, and tikanga, with their ancestral waters and taonga?
(14)	Ngāi Te Rangi	(a)      Did the Environment Court and High Court err in their approach to tikanga under s 104 of the RMA, in finding that there was no jurisdiction to consider end use as relevant to the regional resource consents? (b)      Did the Environment Court and High Court err in their approach to tikanga by failing to rely on the evidence of the Iwi Authority, as exclusively relevant to determining what the tikanga of Ngāti Awa is?
(15)	Ngāi Te Rangi	Whether the Environment Court and High Court erred by conflating western science expert evidence relating to physical effects of the regional resource consents, with the tikanga effects of Ngāti Awa, arising from the grant of the consents.