Te Wh�nau a Kai Trust v Gisborne District Council

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 36/2023
[2023] NZSC 77

BETWEEN	TE WHĀNAU A KAI TRUST Applicant
AND	GISBORNE DISTRICT COUNCIL Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	M S Smith and D C F Naden for Applicant P T Beverley and T J Ryan for Respondent
Judgment:	29 June 2023

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is dismissed.

B The applicant must pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

Introduction

On 23 June 2022, the High Court[1] dismissed Te Whānau a Kai Trust’s appeal against the decision of the Environment Court relating to a dispute about the Gisborne Regional Freshwater Plan.[2]
[1]Te Whānau a Kai Trust v Gisborne District Council [2022] NZHC 1462 (Grice J).
[2]Te Whānau a Kai Trust v Gisborne District Council [2021] NZEnvC 115, [2022] NZRMA 372 (Judge Dickey, Judge Doogan and Commissioner R M Bartlett).
On 13 March 2023, the Court of Appeal dismissed the Trust’s application for leave to appeal to that Court.[3]
[3]Te Whānau a Kai Trust v Gisborne District Council [2023] NZCA 55 (French and Katz JJ).
The Trust now seeks leave to appeal against the decision of the High Court directly to this Court and also seeks an extension of time to make the leave application.

Proposed grounds of appeal

The matters the Trust seeks to argue are largely the same as in the Courts below. These are:
(a)Question one: As a matter of statutory jurisdiction, can a Resource Management Act 1991 (RMA) regional freshwater plan recognise and provide for tikanga-based proprietary rights, interests and responsibilities in freshwater?
(b)Question two: If question one is answered “yes”, what is the correct formulation of the evidential test to establish tikanga-based proprietary rights, interests and responsibilities in freshwater?
(c)Question three: Can and should the RMA and the Local Government Act 2002 (LGA) be read together to enable and require plans to commit a council to fund the discharge of tikanga-based proprietary rights, interests and responsibilities that the plan recognises, with quantum and conditions of that funding to be set under the LGA?
(d)Question four: Should the definition of “tikanga wai Māori” in an RMA regional plan expressly state that Māori customary “laws” fall within its scope, in addition to “Māori customary values and practices”?

Court of Appeal leave decision

With regard to the first, jurisdictional, question, the Court of Appeal in its leave decision held that it was not seriously arguable that the High Court erred in its analysis of this issue. The RMA is concerned with management and not the underlying ownership of resources.[4]
[4]At [19]–[21].
On the issue of evidence, the Court of Appeal accepted that the correct formulation of the evidence test for the existence of tikanga-based proprietary rights is a question of law of general or public importance. But this did not justify the grant of leave to appeal where it was not seriously arguable that the jurisdictional finding was in error.[5]
[5]At [27].
On the third question, the Court of Appeal held that it was not seriously arguable that the RMA and the LGA prescribe a particular funding outcome.[6]
[6]At [32].
On the fourth question, the Court of Appeal said that, while the definition advocated by the Trust may have much to recommend it, this does not raise an arguable error of law of general or public importance justifying a third appeal.[7]

Our assessment

[7]At [39].

There are no extraordinary and compelling circumstances that would justify a direct appeal when the Court of Appeal has already declined leave in a fully reasoned judgment.[8] In any event, the arguments sought to be raised essentially repeat the arguments made in the Courts below and nothing raised suggests that the Court of Appeal may have been wrong in its assessment of the proposed leave grounds, given the way the Trust pitched its case.

Result

[8]Senior Courts Act 2016, s 75; and Burke v Western Bay of Plenty District Council [2005] NZSC 46, (2005) 18 PRNZ 560 at [4].

The application for an extension of time to apply for leave to appeal is dismissed.
The applicant must pay the respondent costs of $2,500.

Solicitors:
Tamaki Legal Ltd, Auckland for Applicant
Buddle Findlay, Wellington for Respondent

Te Whānau a Kai Trust applied to the Supreme Court of New Zealand to appeal the decision of the High Court, which had dismissed the Trust’s appeal against the decision of the Environment Court concerning the Gisborne Regional Freshwater Plan. The Trust sought leave to appeal directly to the Supreme Court and an extension of time to make the application for leave. The Trust’s proposed grounds for appeal were largely the same as those argued before the Courts below. The Trust raised four issues: firstly, whether the Resource Management Act 1991 (RMA) can recognise and provide for tikanga-based proprietary rights, interests, and responsibilities in freshwater; secondly, the correct formulation of the evidential test to establish such rights; thirdly, whether the RMA and the Local Government Act 2002 (LGA) require councils to fund the discharge of tikanga-based proprietary rights; and fourthly, whether the definition of “tikanga wai Māori” in an RMA regional plan should expressly state that Māori customary “laws” fall within its scope. The Supreme Court dismissed the application for leave to appeal and the application for an extension of time. The Court held that the Court of Appeal’s decision declining leave to appeal was sound, and there were no extraordinary and compelling circumstances that would justify a direct appeal. The Trust must pay the respondent’s costs of $2,500.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established