Greymouth Petroleum Ltd v Heritage New Zealand Pouhere Taonga

• Jurisdiction: New Zealand
• Judge: B P Dwyer
• Judgment Date: 10 May 2016
• Neutral Citation: [2016] NZEnvC 84
• Court: Environment Court
• Docket Number: ENV-2014-WLG-000062
• Date: 10 May 2016

In the Matter of an appeal pursuant to section 58 of the Heritage New Zealand Pouhere Taonga Act 2014

Between

Greymouth Petroleum Limited

Appellant

and

Heritage New Zealand Pouhere Taonga

Respondent

Decision No. [2016] NZEnvC 84

Court:

Environment Judge B P Dwyer sitting alone under s 279 of the Resource Management Act 1991

ENV-2014-WLG-000062

BEFORE THE ENVIRONMENT COURT

Application for costs against Heritage New Zealand Pouhere Taonga (HNZ) — the applicant sought an authority under s44(a) Heritage New Zealand Pouhere Taonga Act 2014 to modify or destroy an archaeological site — HNZ agreed that there was a low possibility of locating archaeological material but declined an authority based on wider Maori cultural values associated with the wider area, namely the alleged burial site of Wiremu Kingi in the vicinity — HNZ had delayed its decision in order to influence a local hapu into opposing the application — it did not advise the applicant of any of these actions or give it an opportunity to comment on factual contentions advanced by others — application of paragraph 6.6(c) and (d) Environment Court Practice Note 2014 — whether HNZ was to be treated as a first instance decision maker so that costs should not be awarded against it — whether HNZ had failed to perform its duties properly or had acted unreasonably — whether indemnity costs should be awarded — whether it was appropriate to use the District or High Court Scale costs as a reference when assessing costs in the Environment Court.

COSTS DECISION

A: Costs awarded

Introduction

1 On 26 January 2016 the Court issued a decision 1 (the Decision) allowing an appeal by Greymouth Petroleum Limited (Greymouth) against a decision of Heritage New Zealand Pouhere Taonga (HNZ) declining an application by Greymouth pursuant to s 44(a) of the Heritage New Zealand Pouhere Taonga 2014 (the Act) for an authority to modify or destroy an archaeological site situated in the Waitara Valley, Taranaki.

2 In allowing the appeal the Court reserved costs in favour of Greymouth which has now applied for costs. HNZ opposes the application.

3 The Act does not contain any provisions for the award of costs on appeals. This application for costs is accordingly considered under the provisions of s 285 of the Resource Management Act 1991 (RMA).

Background

4 The archaeological site Greymouth sought to modify or destroy was an area of farmland containing approximately 1.5ha on which it proposed to establish drilling structures for oil and gas extraction. The well site was referred to by Greymouth as Kowhai D.

5 Greymouth's application was made on a precautionary basis because archaeological investigation and assessment undertaken on behalf of both it and HNZ established that the possibility of locating archaeological material on Kowhai D was low. 2 Notwithstanding the agreed low possibility of there being archaeological material on Kowhai D, Greymouth's application was declined by HNZ. The grounds for doing so were summarised in the following paragraphs of its 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 3, 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) and a representative of that hapu (Mr D E Doorbar) appeared as a witness for HNZ at the appeal hearing. A further witness for HNZ at the hearing was Mrs R Belton, a representative of Pukerangiora Hapu within whose rohe Kowhai D is situated.

6 It will be apparent from consideration of that part of the HNZ decision which I have cited above that Greymouth's application was declined not because of any effect which its activities might have on an archaeological site, but rather because of contended impacts on Maori cultural values associated with the wider area. Although the cultural values relied on by HNZ in its decision related to the presence of the gravesite of Wiremu Kingi in the vicinity of Kowhai D, at our hearing HNZ sought to expand these values through identification by Mrs Belton of the nearby site of the slaughter of the inhabitants of Pukerangiora Pa which occurred in the 1830's. The contended grave and massacre sites were somewhere between 300 and 500 metres respectively away from Kowhai D.

7 In allowing the Greymouth appeal, the Court made a number of findings which are relevant to the consideration of this costs application, namely that:

I will return to some of these matters further in this decision.

• • In determining Greymouth's application HNZ's considerations should have been limited to the effects of the proposal on Maori or cultural values as they pertained to Kowhai D itself and it was not entitled to take

  into account contended effects on Maori and cultural values of the wider area;

• • The Court was unable to find conclusively that the gravesite of Wiremu Kingi was in the site contended by Mr Doorbar but wherever it might be it was certainly not within Kowhai D;

• • Similarly the Court was unable to conclusively identify the position of burial sites of persons killed during the Pukerangiora massacre but there was no suggestion that such sites might lie within Kowhai D;

• • Even if the Court had found that the burial site of Wiremu Kingi was in the position claimed by Mr Doorbar and accepting that there are burial sites of Pukerangiora tupuna somewhere in the general area and further assuming that HNZ was entitled to take a wide approach to determination of the application, on the merits of the application authority ought still have been granted to Greymouth;

• • There were unsatisfactory aspects to the manner in which Greymouth's application had been processed by HNZ. These included delaying a decision on the application to enable Mr Doorbar to attempt to influence the position of Pukerangiora (which had not objected to the application) and then declining the application on the wide basis which it did. Neither of these matters were disclosed to Greymouth for its comment prior to HNZ making its decision.

Greymouth's Application for Costs

8 Greymouth's application was for 60 per cent of its claimable costs of $216,613.89.

9 Early in its costs application Greymouth referred to the Court's known reluctance to award costs against a primary decision-maker. It referred to paragraph 6.6(c) of the Environment Court Practice Note 2014 (the Practice Note) in that regard. Greymouth went on to identify a number of situations where the Court has been willing to award costs against a primary decision-maker. 4

10 Greymouth submitted that the HNZ decision fell within the terms of the first sentence of para 6.6(c) of the Practice Note in that it imposed an unusual restriction on Greymouth's rights:

• • Firstly by declining the application on the basis of effects on the wider cultural values of the landscape rather than direct impact on any archaeological site;

• • Secondly because of the breadth of the decision which (on its face) would exclude Greymouth from undertaking development activities requiring an authority pursuant to s44(a) anywhere in an undefined area of the Waitara Valley.

11 An unusual aspect of the HNZ decision identified by Greymouth was revealed from an HNZ staff document dated November 2014 where one factor in recommending decline of the application was:

The implication of this approach is that Greymouth Petroleum will appeal the decision and so Heritage New Zealand would lead the appeal process in the Environment Court with Otaraua hapu and possibly Pukerangiora.

Greymouth submitted that this document showed a deliberate decision on HNZ's staff's part to recommend decline of the application on the basis that Greymouth would and could incur the costs for an appeal but that local hapu could not. Again, Greymouth was not made aware of this recommendation for comment prior to issue of the HNZ decision.

12 Greymouth referred to various findings made by the Court in paragraphs [44]–[49] of the Decision as to fundamental failings in fair process involved in HNZ's decision-making. It pointed to the various shortcomings in the decision making rationale and process which I have summarised in para [7] (above).

13 Greymouth referred to the factors identified in DFC NZ Ltd v Bielby 5 (the Bielby factors). It referred to the Court's decision in Carter Holt Harvey HBU Ltd v Tasman District Council 6 where the Court exercised its discretion to award higher than normal costs in circumstances where a party had taken a fundamentally flawed approach to proceedings. It contended in summary that HNZ:

• • Ran a process with breaches of Greymouth's rights to natural justice that, if not made, may have avoided the need for the appeal;

• • Took into account the wholly irrelevant consideration of who could afford to pay for an appeal;

• • Produced a result which was an unusual restriction on Greymouth's rights, both in its lack of precision and its scope, without proper or detailed analysis as to whether or not it had power to do so when the values with which it was concerned did not apply to Kowhai D;

• • Relied on matters relating to the Pukerangiora massacre to belatedly justify its decision which had not taken those matters into account.

14 Greymouth contended that an appropriate comparison of the level of costs might be made with the decision in Pemberton v...