Te Taiwhenua O Heretaunga v Environmental Protection Agency Expert Consenting Panel
[2025] NZHC 2397
•22 August 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-568
[2025] NZHC 2397
UNDER the COVID-19 Recovery (Fast-track Consenting) Act 2020 IN THE MATTER
of an appeal against a decision of an Expert Consenting Panel under the COVID-19 Recovery (Fast-track Consenting) Act 2020
BETWEEN
TE TAIWHENUA O HERETAUNGA
Appellants
AND
ENVIRONMENTAL PROTECTION
AGENCY EXPERT CONSENTING PANEL
First RespondentR W & M C GALE TRUSTEES LIMITED AS TRUSTEE FOR R W & M C GALE FAMILY TRUST
Second Respondent
Hearing: 17 February 2025 Appearances:
N R Coates and M Harris for Appellants
No appearance for First Respondent (abiding)
S de Groot and K Katipo for Second RespondentJudgment:
22 August 2025
JUDGMENT OF ISAC J
[Appeal against grant of fast-track resource consent]
Introduction
[1] The RW and MC Gale Family Trust (the Trust) proposes to construct an aggregate quarry at Maraekākaho in the Hawke’s Bay near an existing facility.
TE TAIWHENUA O HERETAUNGA v ENVIRONMENTAL PROTECTION AGENCY EXPERT CONSENTING PANEL [2025] NZHC 2397 [22 August 2025]
The resource consent needed for the project was referred to an expert consenting panel (the Panel) for consideration under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (the Act). The Panel granted the necessary consents in a decision of 5 August 2024.
[2] The site of the proposed project lies on the banks of the Ngaruroro River within the rohe of hapū of Heretaunga Tamatea. The hapū are represented by Te Taiwhenua o Heretaunga, a grouping of 14 marae. Before the Panel Te Taiwhenua objected to the grant of resource consent. They now appeal from the Panel’s decision.
[3] Appeals under the Act are limited to a question of law.1 The central issue for determination is whether the Panel correctly understood and applied s 6 of the Act, which is a statutory direction that any person performing functions or exercising powers under the Act “must act in a manner that is consistent with the principles of the Treaty of Waitangi and Treaty Settlements”.
[4] The appellants say the Panel erred in law because it failed to identify and then correctly apply the relevant Treaty principles. It also failed to evaluate the environmental effects of the project through a Treaty lens. In response, the Trust contends the Panel identified the correct legal test, identified the relevant Treaty principles and acted consistently with them, in both the process it adopted and the substance of its decision.
[5] The sole issue I must therefore determine is whether the Panel proceeded correctly as a matter of law. Before turning to consider that question I will first summarise the relevant statutory context and consider the Court of Appeal’s decision in Greenpeace Aotearoa v Hiringa Energy.2
1 COVID-19 Recovery (Fast-track Consenting) Act 2020 [FTCA], sch 6, cl 44(2). An error of law may occur where a decision-maker applies the wrong legal test, reaches a factual finding that is not supported by the evidence, reaches a conclusion not reasonably open on the evidence (or that is “plainly wrong”), or takes into account irrelevant matters or fails to take into account matters it should have considered: see Bryson v Three Foot Six [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[26] and Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 at 181; and May v May [1982] 1 NZFLR 165 (CA) at 169–170.
2 Greenpeace Aotearoa Inc v Hiringa Energy Ltd [2023] NZCA 672, [2024] NZRMA 93 [Hiringa CA decision].
The statutory framework and the Court of Appeal’s decision in Hiringa
[6] The Act was passed as a response to the COVID-19 pandemic. Its purpose was 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.3 It came into force on 9 July 2020 and was repealed under a sunset provision on 8 July 2023.4 In the present case the Order in Council referring the project to the Panel was issued on 12 June 2023, a month before the Act’s repeal.5
[7]Central to this case is s 6, the Treaty of Waitangi provision, which provides:
6 Treaty of Waitangi
In achieving the purpose of this Act, all persons performing functions and exercising powers under it must act in a manner that is consistent with—
(a)the principles of the Treaty of Waitangi; and
(b)Treaty settlements.
[8] The Act contemplated two kinds of fast-track projects. The first were “listed” projects identified within a schedule to the Act itself when passed.6 The second, of which the present appeal is one, were “referred” projects. These were projects that had been the subject of an application for approval to the Minister responsible for the Act.7
[9] As the Court of Appeal has explained, the Act sought to achieve its purpose by providing for certain resource consent applications to be determined on a fast-track basis by an expert consenting panel appointed to consider the application.8 Schedule 6 of the Act applied to applications made under the Act in place of the Resource
3 FTCA, s 4.
4 FTCA, s 3(1). Under sch 1 cl 1, existing applications, including appeals, remain in effect notwithstanding the Act’s repeal.
5 The application to the Minister for consideration of the project under the FTCA was made six-months earlier, on 22 December 2022.
6 FTCA, sch 2.
7 FTCA, s 16.
8 Hiringa CA decision, above n 2, at [12].
Management Act 1991.9 The schedule also set out how a panel was to make decisions under the Act.10
[10] No public or limited notification of applications was permitted under the Act.11 However, the expert panel appointed to consider applications was required to invite written comments on applications from specified persons or groups.12 The specified persons or groups for a referred project included relevant iwi authorities and Treaty settlement entities.13 Iwi authorities invited to comment could share the consent application with hapū who were affected and could choose to include comments from those hapū in the materials provided to the expert panel.14 In addition, under s 20(3)(h) and (i) of the Act, an application to the Minister for referral was required to identify the relevant iwi and Treaty settlement authorities, and provide “a summary of any consultation already undertaken on the project” with those parties.
[11]When considering a referred project a panel was required to have regard to:15
(a)any actual and potential effects on the environment of allowing the activity; and
(b)any measure proposed or agreed to by the consent applicant “to ensure positive effects on the environment to offset or compensate” for any adverse effects that may result from the activity; and
9 FTCA, s 12(2)(a).
10 FTCA, s 15(3)(c).
11 FTCA, sch 6 cl 17(1).12 FTCA, sch 6 cl 17(4) and (6). For a referred project this included the relevant local authorities; the local iwi authorities; relevant Treaty settlement entities; the owners of the land; the occupiers of the land and adjacent land; certain Ministers; the Director-General of Conservation; Business New Zealand Incorporated; Employers’ and Manufacturers’ Association (Northern) Incorporated; Environmental Defence Society Incorporated; Generation Zero Incorporated; Greenpeace of New Zealand Incorporated; Heritage New Zealand Pouhere Taonga; and Infrastructure New Zealand Incorporated; the New Zealand Fish and Game Council; the New Zealand Infrastructure Commission/Te Waihanga; Property Council of New Zealand Incorporated; Royal Forest & Bird Protection Society of New Zealand Incorporated; any requiring authority that has a designation on land on which the project is to be undertaken, or on land that is adjacent to that land.
13 FTCA, sch 6 cl 17(6)(b) and (c).
14 FTCA, sch 6 cl 18(3).
15 FTCA, sch 6, cl 31(1)(a)-(d).
(c)any relevant provisions of national environmental standards, regional policy statements and lower-order planning instruments; and
(d)“any other matter the panel considers relevant and reasonably necessary to determine the consent application”.
[12] In considering these matters a panel was required to apply the Treaty provision in s 6 rather than the Treaty provision in s 8 of the Resource Management Act.16
[13] Finally, of central relevance to the appeal is cl 31(12) of sch 6, which imposed a Treaty provision bottom line. It recorded:
A panel must decline a consent application for a referred project if that is necessary to comply with section 6 (Treaty of Waitangi).
The Court of Appeal’s decision in Greenpeace Aotearoa v Hiringa Energy
[14] The leading authority on the effect of s 6 of the Act is the Court of Appeal’s decision in Greenpeace Aotearoa v Hiringa Energy.
[15] Hiringa involved an application to establish a renewable wind energy facility and associated “green” hydrogen production plant in South Taranaki. Part of the project involved the construction of four large turbines. The consenting panel granted the application and the Te Korowai o Ngāruahine Trust supported by four local hapū (ngā hapū) appealed to the High Court and Court of Appeal.17 Their principal concern was that the wind turbines would adversely affect their relationship with Taranaki Maunga by obstructing the visual and spiritual pathway to the mountain from their marae. They contended the Panel, in granting the consent, had failed to act in a manner consistent with the Treaty and contrary to s 6 of the Act. Of significance to the outcome in both courts was that the two hapū most affected by the project were supportive of it.18 The Court of Appeal described this support as “evidence of Treaty consistency”.19
16 FTCA, sch 6, cl 31(2).
17 Te Korowai o Ngāruahine Trust v Hiringa Energy Ltd [2022] NZHC 2810 [Hiringa HC decision]; Hiringa CA decision, above n 2.
18 Hiringa CA decision, above n 2, at [127]–[128]; [130]–[132] and [204].
19 At [204]
[16]Turning to consider the meaning and effect of s 6, the Court said:20
[182] We agree that s 6 imposes a stronger directive than the requirement in s 8 of the RMA which requires all persons exercising functions or powers under that Act in relation to natural and physical resources to “take into account the principles of the Treaty of Waitangi”. The stronger directive in s 6 of the FTCA was intentional. Parliament rejected the recommendation of the Select Committee that what became s 6 of the FTCA be replaced by s 8 of the RMA.
[183] It is possible that s 6 of the FTCA was also intended to be a stronger directive than the requirement in, for example, s 9 of the State Owned- Enterprises Act 1986, which provides that nothing in that Act permits the Crown “to act in a manner that is inconsistent with” the principles of the Treaty of Waitangi. We say that because the directive is framed positively in s 6 of the FTCA (to act consistently with) rather than negatively (not to act in a manner inconsistent with) and so is more directive in tone, if not in practical effect.
[184] In the High Court, Grice J discussed another Treaty clause variation found in s 4 of the Conservation Act 1987. That section provides that the Act is to be interpreted and administered as “to give effect to” the principles of the Treaty. The Supreme Court has held it to be a “powerful” clause that goes beyond merely balancing the Treaty principles against other relevant considerations. It can have both procedural and substantive effect. In that case, it required the Department of Conservation, when making a decision relating to a concession application, to “so far as is possible, apply the relevant statutory and other legal considerations in a manner that gives effect to the relevant principles of the Treaty”.
[185] We consider that, as relevant for these purposes, s 6 of the FTCA constrains the Panel’s power to grant a consent by requiring that the relevant considerations in cl 31 of sch 6 are applied consistently with the relevant principles of the Treaty. In other words, the actual and potential effects on the environment, any measure to offset or compensate for adverse effects and any other relevant consideration must be viewed through the lens of the Treaty principles. If the effects on the environment would be contrary to the principles of the Treaty and cannot be offset or compensated for in a manner that is consistent with those principles, the Application must be declined. Further, we accept Ngā Hapū’s submission that consistency with Treaty principles in this context is to be considered against the backdrop of the Crown’s acknowledgement to Ngāruahine of Treaty breaches.
[17] The Court also observed that consistency with the principle of active protection under the Treaty may have both procedural and substantive implications:21
That is, not only must the Crown adopt fair consultative processes with Māori in respect of planned projects that may engage Treaty principles, the principle of active protection may be relevant to whether the project should proceed on the site proposed or at all.
20 Hiringa CA decision, above n 2. Footnotes omitted.
21 At [194].
[18] The substantive element of active protection was evident in the findings of the Waitangi Tribunal in four of its inquiries arising out of infrastructure projects having a direct or significant impact on Māori customary interests.22 The Tribunal’s approach to the principles of partnership and active protection — consistent with decisions such as the Lands and Broadcasting Assets cases — acknowledged the need to balance the interests of both Māori and the Crown.23 The Court found that while the appellants’ connection to Taranaki Maunga was a taonga, it did not “necessarily follow that any new addition to the landscape around the Maunga will always be contrary to the principle of active protection”.24
[19] Contrasting the impact of the turbines on cultural values with that of other projects considered by the Waitangi Tribunal, the Court considered the proposed green energy facility would not have “a direct, clear and significant interference with a protected taonga”.25 All hapū also expressed support for a move away from fossil fuels. The position of the two most affected hapū and the iwi position indicated to the Panel that the project would be consistent with the principles of the Treaty provided appropriate conditions could be negotiated. The Panel’s approach in this respect was “consistent with the idea that the Treaty is a partnership involving reasonableness and cooperation” in which the rights, values and needs of one “are not inevitably subsumed by those of the other and where mitigation measures may appropriately offset adverse effects”.26
[20] It was also significant that alternative sites for the project had been considered in the application and that Hiringa had agreed to decommissioning the site, which included developing an alternative site plan, if necessary, at the end of the 35 year life of the turbines. A range of other mitigating measures had “been offered and cultural components are included in the conditions of consent”.27
[21] The Court concluded that the Panel made no error of law in finding that the mitigation measures, including identifying an alternative site at the end of the useful
22 At [195]–[202].
23 At [203].
24 At [203].
25 At [205].
26 At [204].
27 At [205].
life of the turbines, ensured that the project was “consistent with the principles of the Treaty”.28 In particular:
[207] …With the mitigation measures and conditions of consent, we consider it was a project that reflected a balancing of interests reflective of the partnership that the Treaty represents. It met the duty of active protection in the circumstances, taking into account the Crown’s acknowledgment to Ngāruahine of past treaty breaches.
[208] Returning to the considerations in cl 31 of sch 6, we consider that the Panel properly had regard to the actual and potential effects on the environment of allowing the activity, and to measures proposed or agreed to ensure that positive effects offset or compensated for any adverse effects in allowing the activity, as viewed through the lens of what consistency with the principles of the Treaty required. For these reasons, we consider that the Panel made no error of law in how it approached the Treaty consistency of the Project.
[22]Ngā hapū’s appeal was therefore dismissed.
The application and the Panel’s decision in the present case
[23] As noted, the application for resource consent relates to the establishment and operation of a new aggregate quarry situated at Maraekākaho. The proposed site is privately owned by a third party and is currently in pasture. At its closest point, the northern boundary of the new quarry would be approximately 130 metres from the Ngaruroro River. There is an existing quarry — the Winstone Quarry at Roys Hills — situated upstream on the other side of the river.
[24] The proposal involves land-based aggregate extraction and does not involve extraction of gravel from the river. The site is located adjacent to an existing processing site operated by interests associated with the Trust on land owned by the Hawke’s Bay Regional Council. According to the Trust, the proposed location enables significant efficiencies, including minimising the costs and environmental effects associated with trucking large volumes of aggregate into and around the region for processing. The processing site currently processes gravel extracted from the Ngaruroro River in accordance with a global extraction consent issued by Hawke’s Bay Regional Council, which sets annual extraction quotas. The volume of
28 At [207].
material available for extraction under that consent is reducing year on year, so the new quarry is intended to replace the existing riverine resource.
[25] The Trust says the new quarry is ultimately intended to meet urgent demand for aggregate in Hawke’s Bay. The scale of repair and rebuilding needed to recover from Cyclone Gabrielle is said to require a significant volume of critical raw materials, including aggregate.
[26] In a detailed 152-page decision the Panel granted the second respondent’s application for resource consent, but in doing so imposed an extensive suite of conditions addressing land use, stream works and diversion, the discharge of contaminants and stormwater. The Panel’s decision records it met on 23 occasions between 21 February and 2 August 2024,29 received comment (or submissions) from 33 persons or organisations,30 and was assisted by seven of its own experts, who provided advice on matters such as ecology and hydrology, landscape and visual effects, and legal and planning matters.31 As part of its proceedings the Panel had received both the application for consent — itself containing substantial technical and other supporting material — as well as a Cultural Assessment and Aspirations Report (CAAR) prepared by the appellants. The CAAR is also a detailed paper running to 132 pages and canvassed a wide range of issues. Its central focus was the assessment of the effects of the proposed gravel quarry on cultural and environmental values, and against the Treaty principles.
[27] I will not outline the Panel’s careful consideration of issues that are not relevant to the appeal. What follows is directed to the narrow question of law central to this case, namely, the Panel’s approach to the Act’s Treaty provision in s 6.
[28] In Part A of the decision — Executive Summary — the Panel noted that as a result of the comments and concerns raised by affected parties, the applicant had significantly reduced the scope of the proposed activity:32
29 Final decision of the Expert Consenting Panel to establish and operate a quarry at State Highway 50, Maraekakaho, 6 August 2024 [Panel decision] at [40].
30 At [41].
31 At [44].
32 At [3] and [6].
(a)The total area of extraction had narrowed and the volume of aggregate was reduced from 3.06 million m3 to 2.1 million m3;
(b)The maximum depth of extraction of the eastern extraction area was reduced from 30m to 23m; and
(c)A road intended to form part of a possible future ring road would not be sealed and, if not permitted by a future resource consent, would be removed at the end of the 25 year term of the resource consent granted to the second respondent.
[29] Having done so, the decision recorded that the Panel had “assessed” the application by applying the relevant statutory criteria in the Act, including s 6.33 The decision was “finely balanced”.34 The Panel was “particularly cognisant” of the importance of the underlying aquifer, the connection of the quarry site with surface water and the risk of “negative impacts on water quality arising from the Application”.35 The decision then noted the second respondent had failed to undertake early and meaningful engagement with mana whenua. But it considered these failures had been addressed through the imposition of “expanded conditions”:36
It is clear to the Panel that the Applicant had not undertaken meaningful and early engagement with Mana Whenua. As a result, Mana Whenua expressed deep concerns regarding effects on cultural values and the impact of the Application on the cultural landscape and on Mana Whenua connection with this Site and the surrounding environment, which has long and significant associations…The Panel has taken great care to address the concerns regarding Mana Whenua engagement, consultation, input and the principles of the Treaty of Waitangi, through expanded conditions to provide for mana whenua input into the management plans, in particular monitoring, freshwater fish relocation, rehabilitation implementation, water quality, stream diversion, and quarry management plans. These conditions are intended to provide Mana Whenua the opportunity to continue connecting with the awa and whenua as Kaitiaki and express tikanga and kawa responsibilities including in respect of mahinga kai.
[30] The Panel addressed s 6, and the broader legal requirements of the Act, in Part C of its decision — Legal Context. It expressly recorded that it was required to
33 At [9], and fn 3.
34 At [10].
35 At [10].
36 At [12].
act in a manner that was consistent with the principles of the Treaty of Waitangi and Treaty settlements, in discharging its functions and powers under the Act.37 It then adopted “the Hiringa Energy Limited decision regarding [the Panel’s] s 6 obligations”, recording that “[t]he key parts of this framework are summarised below”.38 However, apart from footnoting the relevant parts of the judgments of this Court and the Court of Appeal in Hiringa, the Panel did not return to summarise the Hiringa “framework”. It then noted that “in its decision-making”, the Panel had “considered any relevant obligations” under cl 31(12) of sch 6 of the Act, expressly acknowledging that it was required to decline a consent if that was necessary “to comply with section 6 (Treaty of Waitangi)”.39 The Panel then recorded that it had imposed conditions to address the requirements of the Treaty of Waitangi and with that, it was not required to decline the consent:40
The Panel has imposed conditions to address the requirements of Treaty settlements and the principles of the Treaty of Waitangi. With these consent conditions, the Panel does not consider consent is required to be declined under section 6 [of the Act] under clause 31(12). Matters relating to the Treaty of Waitangi are discussed throughout this decision report.
[31] Part D of the decision — entitled Mana Whenua — contains an outline of the issues raised in the CAAR, which it described as a “very detailed comprehensive document” that “greatly assisted the Panel’s deliberations”.41 This included that:
The CAAR expressed the risks of gravel extraction and quarrying activities in creating a lake, water take of a depleted aquifer, the proximity to the rivers, aquifer recharge, and flood plains. Concerns were raised in respect of the quarrying activities and effects on the hydrological flow, turbidity and pollutants in Te Ipū o Taraia. The CAAR raised the Panel’s consciousness of the ancestral aquacultural economy including species endemic and indigenous to the site and its surrounds. The CAAR grounded these risks to the historical and ongoing denigration of Te Awa o Te Atua – the life-giving waters of the Heretaunga aquifer and the Atua associated that has led to opposition to the Application.
37 At [61].
38 At [61]. See also [82], where the Panel again recorded that it had “adopted the approach taken by the High Court in the Hiringa Energy Ltd decision which sets out relevant mātāpono / principles of the Treaty of Waitangi and the need for contextual application of those, including where such application is assisted by the existence of a Treaty Settlement.”
39 At [69].
40 At [72].
41 At [77].
[32] The CAAR also recorded that mana whenua were concerned that “hapū [had] not been invited to participate early in the conceptual development” of the project.
[33] Part D contains no evaluation of the “cultural effects” identified in the CAAR. These were said to be addressed in a later section of the report — Part E:42
The evaluation of effects of these findings are discussed below in paragraphs 246 – 255 below, including a consideration of the process the Panel undertook to address cultural issues its consideration of potential cultural effects, its assessment against the requirements of section 6, the Panel's concerns in relation to the Applicant’s approach to those matters and its findings under section 6 of the FTCA.
(emphasis added)
[34] The Panel noted the CAAR “identified characteristics for evidencing Treaty Partnership Principles” by listing 19 qualities or criteria.43 While this reflects part of the assessment criteria set out in the CAAR, the Panel decision did not explicitly record the CAAR’s conclusion, which found that judged against those criteria, the application received a Treaty partnership score of 2.5 out of a possible score of 19.44 The CAAR went on to record that a score this low “clearly indicates that in its current form, this resource consent application does not evidence a culturally safe and potentially enduring Treaty partnership”. In addition, in a separate chapter the CAAR addressed the related, but different, Treaty principle of active protection. The Panel decision does not refer to that principle in anything but an indirect way, or the CAAR’s findings on it.45
[35] The CAAR also outlined that the site’s taonga status meant it was unsuitable for quarrying operations. Across the road from the proposed site, on “nearby limestone ranges”, are burial caves. The site itself was also associated with an inter-hapū battle, “adding a layer of tapu status to the area”. The Panel decision summarises these matters,46 but does not address them further in the context of s 6 of the Act.
42 At [92].
43 CAAR at [83].
44 At [79] of the decision, the Panel summarised the CAAR in the following terms: “The CAAR assessment of the Application against the Principles of the Treaty of Waitangi resulted in a poor score against the principles of partnership, participation and protection.”
45 Again at [79] of the Panel decision.
46 At [237]–[238]. The decision does not specifically refer to the internment of tupuna within limestone caves.
[36] In the following chapter, — “Part E: Evaluation of Effects” — the Panel addressed the actual and potential effects on the environment, as required by cl 31(1)(a) of sch 6. Eleven discrete environmental effects, including noise and vibration, hydrological, geotechnical and ecological effects were identified. The CAAR is mentioned at times throughout these sections of the decision. For example, under a section on “landscape and visual effects” the Panel refers to the CAAR’s concerns over degradation of the site. The Panel concluded that the conditions imposed “where possible” provided for the development of Mauri indicators, which were a “key concern” of mana whenua.
[37] One of the eleven sections in Part E then dealt with “cultural effects”. The Panel noted that the “main evidential basis” for its consideration of these matters was the CAAR, comments from two Māori representative parties, experts involved in a conferencing process, and the responses of the applicant Trust and its experts. The Panel found:47
… the CAAR and comments from the invited parties to be of invaluable assistance in understanding the relationship that Mana Whenua have with the Site and its surrounding environment, but also the potential effects and concerns of iwi with the Project. The CAAR identified cultural values and effects but also detailed concerns around insufficient information and assessment, scientific uncertainty and technical solutions proposed. The overarching message from the CAAR is that the proposed gravel extraction project will further diminish the mana and Mauri of this ancestral Taonga.
[38] Under a section setting out its findings, the Panel recorded that it had been clear the Trust had not “undertaken meaningful and early engagement with Mana Whenua”, which had been “deficient”.48 The Panel was disappointed that “many of the technical advisers” to the Trust had not “engaged with the concerns raised in the CAAR”.49 However, the decision records the Panel had taken steps to “address the concerns in the CAAR regarding…engagement” and “the principles of the Treaty of Waitangi”:50
…through expanded conditions to provide for Mana Whenua input into the management plans, in particular: monitoring, freshwater fish relocation, rehabilitation implementation, water quality, stream diversion, and quarry management plans…
47 At [236].
48 At [246].
49 At [247]. However, the decision also records that the “scaling back of the Application” and draft management plans had been a response by the Trust to the CAAR.
50 At [249].
[39] It had also amended the conditions of consent relating to review obligations to respond to adverse effects identified by mana whenua,51 and imposed conditions introducing and defining the role of a Mana Whenua Committee, a kaitiaki advisor and cultural monitors.52
[40] The Panel then concluded its assessment of cultural effects by acknowledging the “original application” was inconsistent with the requirements of the principles of the Treaty, but the reduction in the depth of extraction and the imposition of conditions “satisfied the Panel that Mana Whenua concerns have been addressed”:
254. The Panel considers the original Application was inconsistent with the requirements to have proper regard to the principles of the Treaty of Waitangi. This has resulted in the overall decision being finely balanced. The Panel also considers the original Application was not correct in its claim it was consistent with the goals, values and intentions of Mana Ake. The Panel considers that the amended Application, the further information provided by the Applicant throughout the fast-track process and the peer reviews engaged by the Panel, the expert conferencing and the Joint Witness Statement, and importantly the conditions the Panel proposes have satisfied the Panel that Mana Whenua concerns have been addressed.
255.Of critical importance to the Panel was the:
a.Reduction in excavation level from 30 m to 23 m which the experts agreed addressed the risk of puncturing the unconfined aquifer;
b.The expert conferencing which reached agreement on the remaining technical issues resulting in much expanded conditions of consent, management plans, monitoring and response obligations to address water quality and water source protection concerns; and
c.Conditions to provide for meaningful consultation and collaboration with tangata whenua in the preparation of management plans and in the undertaking of activities authorised by the consent including direct involvement in the maintenance of ecological and cultural values and indicators on the Site. Conditions also provide an opportunity for site walkovers and karakia, including in the accidental discovery protocol.
[41] While the Panel’s analysis made reference to “the principles of the Treaty of Waitangi”, the relevant principles were not clearly identified. Much of the discussion
51 At [250].
52 At [251].
is directed to cultural, ecological and process concerns identified in the CAAR. In concluding, the Panel refers not to the principles of the Treaty but to addressing “Mana Whenua concerns”.53
[42] Finally, in Part K of the decision — “Conditions” — the Panel outlined the conditions it had imposed to meet various concerns and comments, including those of the appellant and raised in the CAAR.54 The relevant conditions are summarised above at [38]. However, the Panel did not go on to explain how the conditions were sufficient to meet the requirements of the Treaty principles and s 6 of the Act.
[43] The Panel concluded that the considerations in cl 31 of sch 6 had been satisfactorily addressed and that the “dual purposes” of the Act were “achieved” by the grant of the application. In doing so the decision records the Panel “has applied s 6 of the [Act], rather than s 8 of the RMA”.55
Did the Panel fail to identify and correctly apply the Treaty principles?
The Trust’s case on appeal
[44] The Trust argues the Panel identified and applied the correct legal test, consistent with the approach of the High Court and Court of Appeal in Hiringa. First the Panel made explicit reference to the Treaty provision in s 6 of the Act, and the bright line in cl 31(12) of sch 6, requiring applications to be declined if they are inconsistent with the principles of the Treaty of Waitangi.
[45] Moreover, counsel for the second respondent argued that, contrary to the appellant’s contention, the Panel identified and engaged with the principles of the Treaty in a manner that demonstrated the Panel considered the project through a Treaty lens. In particular:
53 Similar language is used earlier in the Panel decision, which records the evaluation of “cultural effects” had been undertaken to “address cultural issues”. See paragraph [92] of the decision, set out above at [33].
54 At [384]–[385]; [390]; [405]–[406]; [413] (in Part I — “RMA 1991 Part 2”).
55 At [427]–[428].
(a)The Panel stated in its decision that it had adopted the approach taken by the High Court in Hiringa;56
(b)The Panel expressly identified the principles of the Treaty that were identified in the CAAR as being engaged and recorded the findings of the CAAR regarding consistency with the relevant principles (in particular, partnership, participation and protection);57
(c)The Panel went on to set out the full list of characteristics which the CAAR states are required to evidence Treaty partnership;58
(d)The Panel engaged with the actual and potential effects on the environment, including measures to offset or compensate for adverse effects, through the lens of the Treaty principles. It did this by:
(i)setting out a detailed discussion of the cultural effects of the project and consistency with the Treaty of Waitangi59;
(ii)interrogating other potential environmental effects of concern to mana whenua in significant detail;
(iii)recording its view that it considered that the original application was not consistent with the Treaty, but that the amended application, the further information provided by the applicant and the process that the Panel followed ultimately satisfied the Panel that mana whenua concerns had been addressed; and60
(iv)imposing conditions of consent which were specifically intended to address Treaty consistency.
56 At [82].
57 At [79].
58 At [80].
59 At [236]–[255].
60 At [254].
[46] The level of detail provided in the Panel’s reasons was also commensurate with the complexity of the task before it, the number of matters that it needed to consider under the Act and the challenging timeframes within which it had to issue its decision. In addition, the approach taken and the reasons expressed by the Panel are said to have been consistent with the requirements articulated by the Supreme Court in Trans-Tasman Resources v Taranaki-Whanganui Conservation Board.61
[47] The Trust says that the Panel’s decision met the principles of the Treaty through both its procedures and the substance of the decision, including the conditions it imposed on the activity. The Treaty principle of partnership was met by the Panel providing opportunities for mana whenua to provide their views about the application, and considering the feedback provided. It was also met by the conditions the Panel imposed which included a number of processes for mana whenua involvement in matters such as monitoring and reporting. In making this submission, the Trust argued that the appellant and the Panel’s criticism of the level of consultation was overstated. The principle of active protection was also met by the Panel’s process in interrogating the potential environmental effects of the project on protected taonga in “rigorous” detail, including obtaining its own expert reports. Within the substantive decision, this was not a case where there was a clear and direct interference with a protected taonga that necessitated absolute protection.62 The decision ensured “as far as possible” the protection of taonga through conditions of consent including monitoring, rehabilitation and conditions of operation. The same process of respect for iwi and hapū views also gave effect to the principle of tino rangatiratanga.63
Consideration
[48] The context in which the Treaty principles arose for consideration in the present case is quite different to that in Hiringa. There, the two most affected hapū supported the application. The Court of Appeal considered this was evidence of compliance with the principles of the Treaty. In the present case all the affected Māori
61 Trans-Tasman Resources v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 [Trans-Tasman Resources].
62 Such as the examples cited by the Court of Appeal in Hiringa of sewage discharges into an important fishing ground or cooling towers which would result in a significant loss of an important fishing area.
63 Although this Treaty principle is not identified in the Panel’s decision.
interests were unanimous in their view the project and the process undertaken by the applicant were inconsistent with the requirements of the Treaty principles. In addition, the Court of Appeal considered the applicant’s engagement in Hiringa with Māori concerning possible alternative locations, and early engagement (it seems years before the application was made), were significant elements the Panel in that case was entitled to place weight on. Those features are missing from the present case. Indeed as the Panel’s decision here acknowledges, there was no appropriate consultation or engagement with the appellants by the Trust before the application for consent was made.64 And, in contrast to Hiringa, there was no consultation regarding alternative sites. Finally, as Ms Coates argued, whereas the wind farm in Hiringa did not involve direct, clear or significant interference with taonga and would be decommissioned after 25 years, in the present case there will be significant and potentially permanent alterations to the natural environment that may be adverse to customary and spiritual values. It follows that I do not accept the respondent’s submission that in the present case there was no “clear, direct and significant interference with a protected taonga” (albeit that evaluation is one ultimately for the Panel).
[49] Despite the care with which the Panel went about its consideration of a complex application, I consider its approach to the requirements of s 6 was in error. The error arose in two ways. First, the Panel failed to clearly identify the Treaty principles that were engaged and assess the application and process, including any matters by way of off-set or mitigation,65 against those principles. An explanation was then required of how the final balance had been struck. Second, rather than a discrete consideration of the relevant Treaty principles against the process and substance of the application, s 6 was subsumed within a broader consideration of the project’s environmental effects.
64 I note that the applicant states that engagement began from June 2023, when the Trust received confirmation it would be referred for fast-track approval. The CAAR considers that consultation began in December 2023. The Panel was clear in their comments that the lack of early consultation was a “missed opportunity to truly partner with mana whenua”.
65 Under sch 6, cl 31(b).
[50] This Court’s decision in Hiringa summarises the principles that emerge from the case law in relation to the interpretation of Treaty clauses, including s 6 of the Act.
They include:66
(a)A liberal interpretation (broad, unquibbling and practical) must be applied to a Treaty clause. The clause must be given a broad and generous construction;
(b)A statutory requirement to “act in a manner consistent” in a Treaty clause is a strong direction to a decision-maker. The decision-maker must ensure that consistency with the principles of the Treaty occurs in not only a procedural way, but also substantively. That means that the principles of the Treaty will have procedural as well as substantive implications, which decision-makers must always have in mind;
(c)Consistency with Treaty principles is not an objective to be balanced against other objectives;
(d)Meeting of other statutory or non-statutory objectives is to be achieved to the extent that can be done consistently with the relevant Treaty principles;
(e)In some circumstances, depending on the relevant legislation and planning documents engaged and related requirements, the consistently and genuinely held views of the hapū will be determinative;
(f)Critically in terms of the current appeal, a decision-maker must:
(i)identify and properly engage with the nature of the interests affected;
(ii)identify the Treaty principles at play;
66 Hiringa HC decision, above n 17, at [193]. Footnotes omitted. The Court of Appeal did not take issue with Grice J’s formulation of the relevant law. See Hiringa CA decision, above n 2, at [170] and [174]–[176].
(iii)explain, even if briefly, why the existing interests have been outweighed by other factors in the particular case or sufficiently accommodated in other ways. In other words, the decision- maker must explain the balance struck; and
(g)Consistency with Treaty principles does not import a requirement for consent by mana whenua.
[51] The legal requirements of reaching a reasoned decision as noted above at [50(f)] are drawn largely from the Supreme Court’s decision in Trans-Tasman Resources.67 Although the Court there was required to consider the effect of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, one of the issues was the correct application of the Treaty clause in s 12 of that Act. The Court observed that a decision-making committee (or DMC) was required to give reasons, although that requirement had to be tempered:68
…by the fact this is an area where it may not be possible to do much more than explain the balance struck, having set out the evidence for the findings of fact on which that balance depends.
[52] The Court also acknowledged in the context of the exclusive economic zone legislation that cases may be complex and “will often involve measuring incommensurable values”.69 However, notwithstanding those qualifications, the Court went on to conclude that where there are a number of factors to be weighed including Treaty obligations, “the decision-maker will need to explain, albeit briefly, the way in which the balance has been struck”.70
[53] This is the difficulty with the Panel’s decision in the present case. While the decision refers to the Treaty clause and its requirements, and the concerns expressed in the CAAR, including a reference to lack of compliance with the Treaty principles, the decision fails to explain why the balance has been struck as it has. Trans-Tasman Resources itself illustrates the problem. The decision of the DMC had imposed
67 Trans-Tasman Resources, above n 61.
68 At [157].
69 At [157].
70 At [157].
conditions on the applicant to establish and maintain a “Kaitiakitanga Reference Group”, but as the Supreme Court observed:71
[160] …despite the references to the effect of the proposal on kaitiakitanga and the mauri of the marine environment, the DMC did not effectively grapple with the true effect of this proposal for the iwi parties or with how ongoing monitoring could meet the iwi parties’ concern that they will be unable to exercise their kaitiakitanga to protect the mauri of the marine environment, particularly given the length of the consent and the long-term nature of the effects of the proposal on that environment.
[161] What was required was for the DMC to indicate an understanding of the nature and extent of the relevant interests, both physical and spiritual, and to identify the relevant principles of kaitiakitanga said to apply. Here, while there was some reference to spiritual aspects, the primary focus does appear to have been on physical and biological effects, for example, of the sediment plume. Further, while the DMC acknowledged there would be “some impact” on kaitiakitanga, mauri and other cultural values, that significantly underrated the effects. The DMC then needed to explain, albeit briefly, why these existing interests were outweighed by other s 59 factors, or sufficiently accommodated in other ways. Further, also reflecting the advice it had received, the DMC did not consider that the as yet unrecognised claims made by iwi under the MACA Act were existing interests, and nor was this a situation where these “future possibilities” could be considered under s 59(2)(m) as any other relevant matter. Finally, the DMC’s starting point was that the principles of the Treaty were not directly relevant but, rather, could “colour” the approach taken. On our approach, these two aspects were also errors of law.
(emphasis added)
[54] The Panel’s decision in the present case suffers from the same deficiencies. The relevant principles of the Treaty are never directly identified. They are not then analysed against the relevant application materials, including the CAAR. There is no real attempt to grapple with the true effect of the proposal on mana whenua, or how the conditions imposed met the requirements of the principles of the Treaty, particularly given the Panel’s clear finding that the Trust had failed to undertake pre-application consultation. In other words, there is no explanation by the Panel of the way in which the balance was struck. Instead, the decision records relevant considerations and provides a conclusion — but it does not provide the reasons for that conclusion.
71 Trans-Tasman Resources, above n 61 (footnotes omitted).
[55] Reasons are essential to the rule of law, particularly in the exercise of an important public power, even where the decision-making does not involve a court. As Elias CJ said in Lewis v Wilson & Horton, the failure to provide reasons:72
…means that the lawfulness of what is done cannot be assessed by a Court exercising supervisory jurisdiction. Those who exercise power must keep within the limits imposed by law. They must address the right questions and they must correctly apply the law. The assurance that they will do so is provided by the supervisory and appellate Courts. It is fundamental to the rule of law.…It is important that sufficient reasons are given to enable someone affected to know why the decision was made and to be able to be satisfied that it was lawful. Without such obligation, the right to seek judicial review of a determination will in many cases be undermined.
[56] There is also a distinction between conditions addressing “mana whenua concerns” or “cultural effects”, and an analysis of a proposal against the requirements of the principles of the Treaty of Waitangi. What the Panel was required to do in the present case was identify the relevant Treaty principles, identify any aspects of the proposal that were not consistent with those principles, and explain, even if briefly, why mitigation or off-setting matters including the conditions were sufficient to meet the bottom-line of the Treaty provision.73 In adopting this approach, the Panel will be required to consider the proportionality between any element of Treaty inconsistency and the relevant off-setting measure or measures. While some factors in the balance may be incommensurable, there must nevertheless be a balance. In the present case the Panel considered the overall application was finely balanced. It also considered there had been a failure by the Trust to consult with mana whenua. The level of off-setting measures would need to address these concerns and be proportionate to them. That consideration is not evident on the face of the Panel’s decision.
[57] The second error in the Panel’s approach was the consideration of Treaty principle compliance in the general context of environmental effects. As noted above at [33], consideration of the CAAR was largely subsumed within “Part E” of the decision, which dealt with identified actual and potential effects on the environment.
72 Lewis v Wilson & Horton (2006) 6 HRNZ 1, [2000] 3 NZLR 546 (CA) at [80]. Although that case concerned a requirement for reasons in judicial decision-making, the Court of Appeal’s decision went on to record that reasons “may be abbreviated”, and cited Lord Donaldson MR’s judgment in R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310 at 319, involving a judicial review challenge to a decision of an administrative body.
73 In the present case, without adequate reasons, the power to grant a consent begins to approach a broad discretion informed by unarticulated value judgments.
Here, “cultural effects” were considered amongst 11 other identified effects. But s 6 and cl 31(12) gives primacy to Treaty principle compliance. Unlike the assessment of environmental effects in general, the Act makes it clear that the Treaty clause is a positive limit on the power to grant a consent against which the entire application must be judged. The Treaty principles should not be subsumed within cultural effects. They should also be considered as part of the ultimate legal constraint that informs each of the mandatory considerations in cl 31(1)(a)-(d) of sch 6.74 That is the plain effect of cl 31(2). It is for this reason the Court of Appeal in Hiringa observed the actual and potential effects on the environment, any measure to offset or compensate for adverse effects and any other relevant consideration must be “viewed through the lens of the Treaty principles”.75
[58] I have therefore concluded the Panel’s approach was wrong as a matter of law and that the appeal should be allowed.
Conclusion and result
[59]For the foregoing reasons the Panel’s decision is set aside.
[60] The application for consent under the Act is remitted to the Panel for reconsideration in light of this judgment.
[61] My preliminary view is that the appellants are entitled to costs on a 2B basis. I would certify for second counsel. The parties are strongly encouraged to reach agreement on costs accordingly. If they are unable to do so they may file memoranda not exceeding three pages in length.
Isac J
Solicitors:
Kāhui Legal, Wellington for Appellants
Luke Cunningham Clere, Wellington for First Respondent MinterEllisonRuddWatts, Auckland for Second Respondent
74 This is the plain effect of cl 31(2) of sch 6 of the Act.
75 At [185].
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