Greenpeace Aotearoa Incorporated v Hiringa Energy Ltd

• Jurisdiction: New Zealand
• Judge: Katz,Mallon JJ,Cooper P,Mallon J
• Judgment Date: 21 December 2023
• Neutral Citation: [2023] NZCA 672
• Court: Court of Appeal
• Docket Number: CA649/2022

[2023] NZCA 672

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

Cooper P, Katz and Mallon JJ

CA649/2022

Between

Greenpeace Aotearoa Incorporated

Appellant

and

Hiringa Energy Limited and Ballance Agri-Nutrients Limited

Respondents

and

Ōkahu-Inuāwai Me Ētehi Atu Hapū, Ngāti Tū Hapū, Ngāti Tamaahuroa-Titahi Hapū and Ngāti Haua Hapū

Interested Parties

Counsel:

I T F Hikaka and K M Hursthouse for Appellant

P F Majurey, L P Wallace and R E Eaton for Respondents

N R Coates and N A T Udy for Interested Parties

Environment, Indigenous, Resource Management — appeal against a High Court judgment which upheld a resource consent to construct a hydrogen plant and associated wind turbines — Treaty of Waitangi — COVID-19 Recovery (Fast-track Consenting) Act 2020 — Resource Management Act 1991

The issue were: whether the Panel had failed to include any condition requiring the transition from the use of hydrogen for fertiliser to its intended use as fuel for commercial and heavy road transport to actually occur and whether the Panel had failed to act in a manner consistent with the principles of the Treaty.

The Court held Panel made no error of law in relation to the transition conditions it imposed. The conditions of the consent properly matched the justification for the referral under the FTCA. The conditions allowed the South Taranaki District Council (“the Council”) to exercise a review power under s128(1)(a)(iii) Resource Management Act 1991 (“RMA”) (circumstances when consent conditions can be reviewed) for the purposes of assessing the progress of the transition and to propose new conditions to ensure that the transition progressed or continued. The conditions did not require a successful transition because that could not be assured. The Panel's conditions required a good faith pursuit of the intended transition, but reflected the commercial reality that the uptake of hydrogen fuel by heavy transport was ultimately dependent on factors that were not all within the respondents’ control.

The Panel made no error in law in how it approached the consistency of the Project with the principles of the Treaty. Ngā Hapū's connection to the mountain was a taonga (a highly treasured object or natural resource). It did not, however, necessarily follow that the principle of active protection of taonga required the Panel to find that any structure placed on the landscape in front of the mountain was not consistent with the principles of the Treaty. Where adverse effects on Māori spiritual or cultural values could be offset with mitigating measures, that may be sufficient to discharge the duty of active protection in some circumstances.

It was not necessary for the Panel to interrogate the possibility of an alternative site: it was not advanced as necessary by the iwi and hapū and the consent application had directly addressed why the proposed site was especially suitable. With the mitigation measures and conditions of consent, the Court considered the Project reflected a balancing of interests reflective of the partnership that the Treaty represents.

JUDGMENT OF THE COURT

REASONS

Katz and Mallon JJ	[1]
Cooper P	[216]

Katz AND Mallon JJ

(Given by Mallon J)

Table of contents

INTRODUCTION AND SUMMARY	[1]
FTCA	[10]
REFERRAL	[27]
APPLICATION	[32]
GREENPEACE'S APPEAL	[48]
Introduction	[48]
Submission to Panel	[50]
The Decision	[52]
High Court	[70]
Submissions on this appeal	[81]
Discussion	[82]
Conclusion	[102]
NGĀ HAPŪ'S APPEAL	[104]
Introduction	[104]
Iwi and hapu	[107]
Process and views	[111]
Landscape and visual effects assessment	[143]
The Application	[151]
The Decision	[157]
High Court	[165]
Discussion	[174]
Conclusion	[212]
COSTS	[213]
RESULT	[214]

INTRODUCTION AND SUMMARY

[1] Hiringa Energy Ltd (Hiringa) and Ballance Agri-Nutrients Ltd (Ballance), the respondents, propose to construct a hydrogen plant at Kapuni, Taranaki. The hydrogen produced will initially be used as feedstock for synthetic nitrogen (urea) fertiliser, at an existing production facility (the Ballance Plant) before transitioning over a five-year period to supply hydrogen fuel for commercial and heavy transport (the Project).

[2] A resource consent for the Project was granted under the COVID-19 Recovery (Fast-track Consenting) Act 2020 (the FTCA) by an expert consenting panel (the Panel) established under the FTCA (the Decision). The intended transition to supplying hydrogen fuel for commercial and heavy transport was the key reason the consent was granted. That is because hydrogen used in that way may help to reduce greenhouse gas emissions associated with road transport. However, urea fertiliser can be harmful to the environment. The conditions of the consent required the respondents to report on progress in achieving the transition from its use for urea fertiliser to hydrogen fuel.

[3] The decision of an expert consenting panel under the FTCA may be appealed to the High Court on a question of law.1 Te Korowai o Ngāruahine Trust (Te Korowai), supported by four hapū (Ngā Hapū), appealed the Decision to the High Court.2 Te Korowai is the mandated post-settlement governance entity and representative body for Ngāruahine iwi. Ngāruahine iwi includes the hapū with mana whenua over the land on which the Project is sited. Te Korowai and Ngā Hapū's principal concern was that infrastructure for the Project will include four wind turbines and these structures will impact the relationship of the hapū of Ngāruahine iwi to Taranaki Maunga by obstructing the visual and spiritual pathway to the Maunga from hapū marae. Te Korowai and Ngā Hapū contended that, in granting the consent, the Panel had failed to act in a manner consistent with the Treaty of Waitangi (the Treaty) as required by the FTCA.3

[4] Greenpeace Aotearoa Inc (Greenpeace) was also an interested party in the High Court appeal.4 Its primary concern related to the proposed transition from the use of hydrogen for fertiliser to its intended use as fuel for commercial and heavy road transport. It considered the Panel failed to include any condition requiring the

transition to actually occur and that this was an error of law. It also supported the appeal by Te Korowai.

[5] In the High Court Grice J dismissed the appeal.5 The FTCA also provided a final right of appeal to this Court.6 Greenpeace now appeals the High Court decision to this Court. Ngā Hapū are parties to this appeal. Te Korowai abides this Court's decision.

[6] On this appeal, Greenpeace contends that the Panel failed to include any condition requiring the transition to actually occur and this:

• (a) was an error of law, or alternatively, meant that the Panel erred in assessing the environment effects of the Project on the basis that the transition would occur;

• (b) meant that the issue of transition was left to be addressed by the South Taranaki District Council and this was an unlawful abdication of its decision-making function under the FTCA; and

• (c) failed to actively protect Māori interests because it left a crucial decision about the Project to be made by a decision-maker who, unlike the Panel, was not required to act consistently with the principles of the Treaty.

[7] Ngā Hapū contends that the Decision was unlawful because it was not consistent with the principles of the Treaty.7 They say that:

• (a) the Crown is under an obligation to protect taonga of great spiritual and physical importance to Māori;

• (b) Taranaki Maunga and Ngā Hapū's tikanga-based relationship with the Maunga is a taonga;

• (c) because of the unmitigated adverse spiritual and cultural harm to that connection from the Project, the Decision is inconsistent with the Treaty principle of active protection;

• (d) there were no exceptional circumstances to displace this inconsistency; and

• (e) this meant the Panel was required to decline consent to the Project or at least to consider properly whether there was an alternative site for the turbines that would not impact on the spiritual and physical relationship of Ngā Hapū with Taranaki Maunga.

[8] We have concluded that the appeal must be dismissed. In summary this is because:

• (a) The Project was not referred to the Panel because it would certainly make a successful transition to utilising the hydrogen for transportation. It was referred to the Panel in part because, if the intended transition to hydrogen fuel was successful, it would assist New Zealand's efforts to mitigate climate change and transition to a low-emissions economy more quickly. The conditions of the consent reflected this intention but did not require a successful transition because that could not be assured. The conditions of the consent properly matched the justification for the Project's referral to the Panel.

• (b) The Decision was consistent with the principles of the Treaty. The principle of active protection of taonga did not require the Panel to find that any structure placed on the landscape in front of the Maunga was inconsistent with the principles of the Treaty. This principle, as with other Treaty principles, falls under the overarching principle of partnership. Where adverse effects on Māori spiritual or cultural values can be offset with mitigating measures, that may be sufficient to discharge the duty of active protection in some circumstances. In this case the circumstances included that the position of hapū were not consistent nor aligned. Ngāti Manuhiakai, the hapū most affected by the proposed location of the turbines, supported the Project. This was evidence that, with appropriate mitigating measures, the Project was consistent with the duty of active protection and the overarching principle of partnership. It was open to the Panel to conclude...