Greymouth Petroleum Ltd v Heritage New Zealand Pouhere Taonga

• Jurisdiction: New Zealand
• Judge: B P Dwyer,D J Bunting,S K Prime
• Judgment Date: 26 January 2016
• Neutral Citation: [2016] NZEnvC 11
• Docket Number: ENV -2014-WLG-000062
• Court: Environment Court
• Date: 26 January 2016

IN THE MATTER of an appeal pursuant to section 58 of the Heritage New Zealand Pouhere Taonga Act 2014

BETWEEN

Greymouth Limited

Appellant

and

Heritage New Zealand Pouhere Taonga

Respondent

[2016] NZEnvC 11

Court:

Environment Judge B P Dwyer

Commissioner D J Bunting

Commissioner S K Prime

ENV -2014-WLG-000062

BEFORE THE ENVIRONMENT COURT

Appeal under s58 Heritage New Zealand Pouhere Taonga Act 2014 “HNZA” (rights of appeal) against the respondent declining the appellant's application pursuant to s44(a) HNZA (applications to authorities) for an authority to modify or destroy an archaeological site — the application was refused on the basis that the area had significant Maori values that warranted protection — the application was to establish an oil/gas well site, access way and pipeline in — local iwi opposed the application on the basis that a significant individual was buried in the vicinity — a report by the respondent stated that the appellant's activities would not directly impact on the grave site — the Maori Heritage Council, which advised respondent to decline the application, had delayed its processes to allow one hapu to influence another into objecting — it had also based its recommendation on the uncritical acceptance of advice from a hapu representative — the appellant was not aware of either of these events — whether in determining an application pursuant to s44(a) HNZA, the respondent was limited to considering effects of the proposal on the site or it could consider wider off-site effects (such as non-physical effects on the contended grave site) — whether the process adopted by the Council had breached natural justice.

Counsel:

L J Taylor QC and G M Richards for Greymouth Petroleum Limited

T J Gilbert and S W P Woods for Heritage New Zealand Pouhere Taonga

• A: Appeal allowed, conditions to be finalised

• B: Costs reserved

INTERIM DECISION

Introduction

1 Greymouth Petroleum Limited (Greymouth) appeals against a decision of Heritage New Zealand Pouhere Taonga (HNZ) declining an application by Greymouth pursuant to s44(a) of the Heritage New Zealand Pouhere Taonga Act 2014 (the Act) for an authority to modify or destroy an archaeological site situated in the Waitara Valley in Taranaki.

2 Greymouth's appeal to this Court was made pursuant to s58 of the Act. At the outset of the hearing we expressed our view that this appeal should proceed on the basis of a de novo hearing consistent with appeals under Resource Management Act from consent authority decisions. Both parties agreed that to be the case.

3 The modification or destruction proposed by Greymouth was the undertaking of earthworks enabling it to establish an oil/gas well site, access way and pipeline within an area described in the HNZ decision and notice of appeal as …land at 17 Maunganui Road, Lepperton/Inglewood; 4621 and 59 Tikorangi Road West, Tikorangi and 547 Ngatimaru Road, Tikorangi. We will describe the site more fully later in this decision, however it was referred to by Greymouth as Kowhai D and that is how we shall refer to it in this decision.

4 The crux of the HNZ decision to decline Greymouth's application is found in the following paragraphs of the decision which record as follows:

It is the decision of Heritage New Zealand Pouhere Taonga that your application be declined. Heritage New Zealand Pouhere Taonga and tangata whenua are in agreement that the area has significant Maori values that warrant protection. It is not considered possible to adequately offset the adverse effects of the proposal.

Otaraua have informed Heritage New Zealand that Wiremu Kingi Te Rangitake 1, a significant ancestor of Te Atiawa, is buried in the Waitara Valley. Although the proposed development will not directly impact on the burial site, the values associated with this site are considered so important

that any development in the area will impact on the integrity of the cultural values.

The Otaraua referred to is Otaraua Hapu (Otaraua) which is one of four Northern Taranaki Iwi collectively known as Te Atiawa Nui Tonu. Otaraua was not a separate party to these proceedings but a representative of the hapu (Mr D E Doorbar) appeared as a witness for HNZ at our hearing. The other hapu with an interest in the area is Pukerangiora Hapu.

Background

5 Greymouth is in the business of oil and gas production in the Taranaki area. It holds a number of mining and exploration permits in Taranaki including a permit for the Kowhai area in the vicinity of Waitara. Kowhai D is situated on privately owned farmland 2 on the south-eastern bank of the Waitara River approximately 10km up from the Waitara River mouth.

6 Establishment of the well site requires the construction of an access track (partly on an existing farm track) some 800 —1000m or so in length from Maunganui Road to Kowhai D. On site earthworks will involve stripping the topsoil on the site together with cutting and filling to create a platform for well activities. The well site will be surrounded by a bund. A narrow trench would be dug through farmland to contain a pipeline connecting Kowhai D to an existing production station (Kowhai A) on the north side of the river. Once the pipes were installed the trench would be backfilled and reinstated in pasture.

7 The well site itself has approximate dimensions of 216m long by 82m wide (slightly more if measured outside the bund). The bulk of the site (approximately 1.5ha) would take the form of a metalled surface with the well structures themselves occupying only a small footprint towards one end of the site. Information provided as part of Greymouth's application indicates that construction of the facilities which we have described would require the following volumes of earthworks:

• • Roading — 27, 800m3;

• • Well site/pad — 4, 300m3;

• • Pipeline — 3, 360m3.

8 The permanent structures on the well site once construction is completed are limited in extent. They were shown in a photographic attachment to the evidence of Ms T R Dickey (Greymouth's Consenting and Land Manager). The Court visited a comparable well site and viewed a working well to gain some appreciation of the structures. The wellhead itself is situated underground in a concrete cellar approximately 1.5m square in area and 2m deep. A metal and pipe structure called a Christmas tree sits inside the cellar and protrudes above the ground approximately 2m. A bunded flare pit is situated at one end of the site just outside of the main bund as a safety measure. The flare pit occupies an area of approximately 10m square by 3m deep.

9 The most substantial structure associated with Greymouth's operation is the drilling rig which would be in place for well testing and construction. This is a large structure some 30m high. It is the need to accommodate the drilling rig and other structures associated with the drilling process that primarily require the site to be the size that it is. If the well is constructed as a vertical well the rig would be on site somewhere between 6 or 7 weeks. If directional chilling away from vertical alignment is required to establish the well then several weeks could be added on to that timeframe. The presence of the rig would obviously indicate that a significant drilling operation was being undertaken on the site for a period likely to be somewhere between 6 weeks and 3 months.

10 Greymouth is very familiar with the processes involved in locating and establishing well sites. These processes, including the rationale for selecting Kowhai D, were described in some detail in Ms Dickey's evidence.

11 As part of its investigation of Kowhai D, Greymouth sought the assistance of BTW Company (BTW), a surveying and planning firm, by way of a feasibility report on the well site. The July 2012 report received from BTW 3 identified (inter alia) a range of resource consents which might be required for a well on the site and also contained the following advice:

• • Archaeological authority may be required to destroy/damage/modify unidentified archaeological remains.

• • It is recommended that an archaeological investigation be undertaken to ascertain the likely presence of archaeological remains and advise on whether there is a requirement to obtain an archaeological authority. The site is located within an area of known archaeology and Maori habitation.

12 In July 2014 Greymouth obtained an archaeological assessment of Kowhai D and its related works from Mr I D Bruce (a consultant archaeologist). Mr Brace's report was included in the application which Greymouth lodged with HNZ for an authority to undertake earthworks in September 2014. It came into the Court as part of Mr Bruce's brief of evidence. The survey took the form of review of archaeological records and literature, inspection of aerial photographs, historic land plans and geological maps together with a walkover of the project area. None of the investigation established the presence of any archaeological sites or archaeological material in the areas of development proposed by Greymouth. Notwithstanding that, Mr Brace's report contained the following recommendation: 4

It is recommended that all earthwork undertaken as part of the construction of Kowhai D Well Site and pipeline to the Kowhai Production Station are undertaken under a general authority from Heritage New Zealand Pouhere Taonga. This authority is intended as a precautionary measure in the event that unrecorded archaeological evidence is encountered during this earthwork.

We understand that application for a general authority is common practice in Taranaki even if no known archaeological sites are present in a development area, because of Taranaki's rich Maori heritage and the possibility of cultural material being unearthed at any time.

13 Although Mr Bruce's investigations found no archaeological sites or materials in the areas proposed for development, his report...