Greymouth Petroleum Ltd v Heritage New Zealand Pouhere Taonga
 NZEnvC 11
BEFORE THE ENVIRONMENT COURT
Environment Judge B P Dwyer
Commissioner D J Bunting
Commissioner S K Prime
IN THE MATTER of an appeal pursuant to section 58 of the Heritage New Zealand Pouhere Taonga Act 2014
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
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.
The issues were: whether under s44(a) HNZPTA HNZ's had been entitled to take account of the cultural values associated with the wider landscape of the site, rather than simply the values attaching to any particular archaeological site that might be physically damaged during the work; and whether the process adopted by the Council had been adequate.
Held: The purpose of the HNZPTA was promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand. The principles of the HNZPTA required persons exercising powers under it to take account of relevant cultural values and knowledge together with relationships of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tupuna, wahi tapu and other taonga.
Section 39(1) included reference to (inter alia) a historic place and a historic area. These “were defined in s6 HNZPTA (interpretation)/ These were significant for the considerations in this case as they made a distinction between individual historic places (which could include archaeological sites) and wider historic areas.
While s59 HNZPTA (decisions on appeal — must consider the historical and cultural heritage value of the archaeological site, the purpose of the Act and the relationship of Maori and their culture and traditions with their ancestral lands) identified the matters for consideration by the Court when considering an appeal from a decision of HNZ, the same matters were also the matters for consideration by HNZ.
The application under consideration by either HNZ or the Court pursuant to s59 was an application made under s44. Both ss44 and 59 were contained in Subpart 2 of Part 3 which was headed- “Archaeological sites” and then subheaded “Overarching protection for archaeological sites”. That was a clear indication that the provisions of s42–59 HNZPTA were directed at archaeological sites and their overarching protection. It was clear that the sections of the HNZPTA under consideration (s44 and s59) were directed at the protection of archaeological sites themselves and not wider areas beyond them.
Concerns raised by HNZ as to effects on the broader cultural landscape were addressed in Part 4 HNZPTA (recognition of places of historical, cultural, and ancestral significance). The schemes of the HNZPTA and Resource Management Act 1991 (RMA) were clearly that:
•HNZ regulated physical interference by modification or destruction of archaeological sites under the Act;
•Local authorities regulated land use through the use of local planning instruments including any other form of interference with archaeological sites;
•HNZ could have a role in local authority processes under RMA as a heritage protection authority and/or by way of the use of heritage orders under the RMA.
The purpose of Subpart 2 Part 3 HNZPTA (Archaeological sites) was to protect the physical integrity of archaeological sites which persons sought to modify or destroy, not to protect the wider cultural landscape. Accordingly, HNZ was not correct in determining Greymouth's application on the basis of the contended effect which it might have on the wider landscape surrounding the archaeological site which Greymouth sought authority to modify.
If that were wrong, the application would need to be considered on its merits. There was no conclusive evidence that the area was the final resting place of Wiremu Kingi, even on the balance of probabilities. There was no explanation given as to where the wider landscape or cultural landscape might start or finish. In deciding whether or not to grant an authority to Greymouth it was reasonable to balance the cultural considerations with the fact that Greymouth's proposal did not involve any unacceptable disturbance or destruction of Kowhai D itself. Kowhai D was situated between 300—500m away from the cultural sites in question and the operations would have no discernible physical effects on the cultural sites in question. Further, Kowhai D's proposal was to undertake a lawful use of land which was authorised pursuant to the exploration and mining permits it held.
Greymouth was not made aware of the Council reports or that HNZ staff had allowed time for the Otaraua representative to try and influence the position of Pukerangiora. This called into question the impartiality of the process. In determining the applications under s44, HNZ and the Council were acting in a judicial or semi-judicial capacity. In doing so they were obliged to act fairly and in accordance with the rules of natural justice. The failure to refer the staff reports delaying a decision and advocating a particular outcome without reference to Greymouth for its consideration and comment did not meet the required standard. While any shortcomings in that regard would be rectified by this hearing, these were fundamental failings in fair process which should have been avoided.
There was no appropriate basis on which to decline the authority sought by Greymouth. The appeal was allowed.
A: Appeal allowed, conditions to be finalised
B: Costs reserved
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.
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.
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.
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 importantthat 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.
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...
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