Te Korowai O Ngaruahine Trust v Hiringa Energy Ltd and Balance Agrinutrients Ltd

• Jurisdiction: New Zealand
• Judge: Grice J
• Judgment Date: 31 October 2022
• Neutral Citation: [2022] NZHC 2810
• Docket Number: CIV-2022-485-000012
• Court: High Court

UNDER Clause 44 of Schedule 6 of the COVID-19 Recovery (Fast-Track Consenting) Act 2020 (the Act).

IN THE MATTER Of an appeal against the final decision of an Expert Consenting Panel under the Act to approve resource consents for the Kapuni Green Hydrogen Project.

Between

Te Korowai O Ngāruahine Trust

Appellant

and

Hiringa Energy Limited And Balance Agri-Nutrients Limited

Respondents

and

Ōkahu-Inuawai Me Ētehi Atu Hapū, Ngāti Tu Hapū, Ngāti Tamaahuroa-Titahi Hapū, Ngāti Haua Hapū And Kanihi Umutahi Me Ētehi Atu Hapū

First Interested Parties

Greenpeace Aotearoa Incorporated

Second Interested Party

Taranaki Māori Trust Board

Third Interested Party

[2022] NZHC 2810

Grice J

CIV-2022-485-000012

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Environment, Indigenous, Resource Management — appeal against a decision of the Expert Consenting Panel approving resource consents to the respondent to construct wind turbines — principles of the Treaty of Waitangi — cultural issues — COVID-19 Recovery (Fast-Track Consenting) Act 2020 — Resource Management Act 1991

Appearances:

T H Bennion, L L Black for the Appellant

L P Wallace, R E Eaton for the Respondent

C M Hockly for the First Interested Party

D A C Bullock, J L Beverwijk for the Second Interested Party

The appeal was dismissed.

JUDGMENT OF Grice J (Appeal)

Contents

Abbreviations
Introduction	[1]
Grounds of appeal	[13]
New points raised on appeal	[16]
Principles on appeal	[27]
Statutory framework for resource consent applications under the FTCA	[35]
The Fast-track Consenting Act	[36]
The Expert Panel	[53]
First major issue - the Treaty and cultural issues	[59]
Treaty and cultural issues - background	[60]
Crown and Ngaruahine Treaty settlement	[60]
Various positions of iwi and hapu in respect of the Project	[70]
Te Korowai Cultural Impact Assessment (CIA)	[80]
Ngati Tu Cultural Impact Assessment (CIA) [93] Treaty and cultural issues - the expert report	[99]
Iwi concerns with the Project	[100]
Assessment by the Panel of Maori and cultural values issues	[111]
Findings as to the impacts of the Project	[130]
Findings in relation to cultural issues	[132]
Conditions related to cultural issues	[148]
Treaty and cultural issues - the statutory framework	[149]
Treaty clauses	[149]
The legal framework	[184]
The Panel's report	[194]
Engagement with the relevant interests	[194]
Recognition of the principles of the Treaty	[207]
Explaining the balance struck	[212]
Treaty and cultural issues - analysis	[220]
Reasons - striking the balance	[243]
Particular points on appeal	[248]
Failing to consider the cultural landscape of Ngaruahine as a whole	[248]
Failure to consider the precedential effect to be an adverse effect that could not be mitigated	[255]
Reasons were not required for determining a hearing was not required on any issue	[259]
Delegation to local authority	[267]
Conclusion on cultural issues	[271]
Second major issue - environmental issues	[275]
Failing to consider the precedent effect of the proposal to be an adverse effect over the life of the project that could not be mitigated; and finding that a critical reason for approving the project was 100 per cent transition to use of “green hydrogen” for transport	[276]
Failure to consider the end use of urea and related environmental effects [294] Conclusion as to environmental issues	[316]
Summary	[317]
Conclusion	[327]
Costs	[328]
Attachment 1 - Marae and Area with Direct Line of Sight
Attachment 2 - Excerpt from Appendix 2 conditions (relating to cultural conditions)
General
Wind turbine characteristics
Culverts
Lizard survey
Archaeology
Cultural
Community consultation
Decommissioning and site rehabilitation
Review

Abbreviations

COVID-19 Recovery (Fast-track Consenting) Act 2020	FTCA
Cultural Impact Assessment	CIA
Cultural and Spiritual Values	CSV
Environmental Protection Agency	EPA
Exclusive Economic Zone and Continental
Shelf (Environmental Effects) Act 2012 EEZ Act
Expert Consenting Panel the Panel
Hiringa Energy Ltd Hiringa
Natural Features and Landscapes policy	NFL
National Policy Statement Freshwater Management	NPS-FM
National Policy Statement Renewable Energy Generation	NPS-REG
New Zealand Coastal Policy Statement	NZCPS
Outstanding Natural Features and Landscapes	ONFL
Parininihi ki Waitotara Incorporation Maori Trust	PKW
Relationship of Maori with Ancestral Lands, Water, Sites, Wahi Tapu and other Taonga REL Regional Policy Statement	RPS
Record of Understanding	ROU
Regional Coastal Environment Plan	RCEP
Resource Management Act 1991	RMA
Stream Health Monitoring Assessment Kit Test	SHMAK
South Taranaki District Council	STDC
Te Korowai o Ngaruahine Trust	Te Korowai

Introduction

1 The usual process for obtaining resource consent is under the Resource Management Act 1991 (the RMA). The COVID-19 Recovery (Fast-track Consenting) Act 2020 (the FTCA) was intended to provide a fast, simplified and shortened process for decision-making on resource consents to urgently promote employment to support New Zealand's recovery from the economic and social impacts of COVID-19, while continuing to promote the sustainable management of natural and physical resources. 1 The relevant consents the subject of this appeal were granted following a referral by the Minister for the Environment (the Minister) under the FTCA and determined by a four-member Expert Consenting Panel (the Panel). 2 A resource consent granted under the FTCA is the same as if it were granted under the RMA. 3

2 Under the FTCA, the public notifications and hearing process is replaced by a streamlined notice process and comments process. There is no requirement for an oral hearing. Certain parties are, however, required to be notified.

3 Of particular relevance to this appeal is that s 8 of the RMA, requiring persons exercising functions and powers under the RMA to “take into account” the principles of te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty), is replaced by s 6 of the FTCA, which requires these persons to act in a manner that is “consistent with” the principles of the Treaty and Treaty settlements.

4 This is an appeal against the “fast-track” decision of a Panel approving with conditions resource consents for a “green” project to be undertaken by Hiringa Energy Ltd and Ballance Agri-Nutrients Ltd (collectively referred to as Hiringa). 4

5 The project involves the development of a renewable (“green”) hydrogen hub at Kapuni in South Taranaki. In simple terms, electricity is to be generated from four large wind turbines to provide baseload power to the nearby Ballance Agri-Nutrients Kapuni Ammonia-Urea Manufacturing Plant. The resulting hydrogen produced will initially be used to produce ammonia and urea, before transitioning over a five-year period to supply hydrogen fuel for commercial and heavy transport (the Project).

6 The scope of the Project is described in the consent application as to construct, install and operate a renewable hydrogen hub which will comprise: four wind turbines and associated infrastructure; an electrolysis plant; hydrogen production infrastructure; hydrogen storage, loadout, and refuelling facilities; and underground electricity cables and associated buildings and structures. 5

7 In this case, the parties required to be notified included Te Korowai o Ngaruahine Trust (Te Korowai), the mandated post-settlement governance entity and representative body for Ngaruahine iwi, including the two hapu who have uncontested mana whenua over the land on which the proposed Project is sited, namely Ngati Manuhiakai and Ngati Tu.

8 The Minister was satisfied the application met the purpose of the FTCA and referred the application to the Panel accordingly. On 1 December 2021, the Panel released its decision in a report (the Report) approving the application and granting consents to the Project, subject to conditions, for a term of 35 years.

9 Te Korowai appeals the decision. Ngati Tu is a party supporting the appeal. Greenpeace Aotearoa Inc (Greenpeace) was also a notified party and supports the appeal. While these three parties took carriage of the arguments. Other parties appeared in support of the appellant.

10 The issues on appeal fall into two main areas: first, Treaty and cultural issues; and secondly, environmental issues.

11 In relation to the Treaty and cultural issues, the focus is on the alleged failure by the Panel to properly take into account tikanga and cultural issues as well as the individual positions of hapu and iwi and their issues of concern, and thus its failure to perform its functions in a manner “consistent with” the principles of the Treaty.

12 Greenpeace (which is an entity which must be notified of applications for a referred project under the FTCA) 6 took primary carriage of the arguments in relation to environmental issues. It says that the Panel failed to properly assess the environmental effects, including down-stream effects, of the urea fertiliser produced and so ultimate emissions caused by livestock on the fertilised pasture. It also submits that the stated environmental benefits said to flow from the project based on the transition over five years from use of the production of urea for fertiliser to the provision of hydrogen fuel for transport may not be realised because the conditions in the Report were inadequate in a number of...