Ngati Rahiri Hapu O Te Atiawa (Taranaki) Society Inc. v The New Zealand Historic Places Trust (Pouhere Taonga)
| Jurisdiction | New Zealand |
| Judge | C J Thompson,I M Buchanan |
| Judgment Date | 21 May 2013 |
| Neutral Citation | [2013] NZEnvC 113 |
| Docket Number | ENV-2013-WLG-000014 |
| Court | Environment Court |
| Date | 21 May 2013 |
In The Matter of an appeal under s20 of the Historic Places Act 1993
[2013] NZEnvC 113
Environment Judge C J Thompson
Environment Commissioner I M Buchanan
ENV-2013-WLG-000014
BEFORE THE ENVIRONMENT COURT
Appeal against a decision of the New Zealand Historic Places Trust (“the Trust”) to include in a condition to an authority to undertake works, that two hapu be consulted — appellant was one of the hapu and claimed exclusive mana whenua (authority) over the area, excluding a small portion which was within the opposing hapu's rohe (territory) — said that in terms of s14 Historic Places Act 1993 (powers of Trust in relation to authority application), only the appellant was entitled to be consulted — whether it was necessary to first demonstrate exclusive mana whenua over the rohe when asserting a relationship, an interest, and to be directly affected by a decision of the Trust — whether it was reasonable to include the other hapu in the conditions.
J M von Dadelszen for Ngati Rahiri Hapu O Te Atiawa (Taranaki) Sac Inc
T J Gilbert for the NZ Historic Places Trust (Pouhere Taonga)
L P Wallace and H A Evans for Todd Energy Ltd — s274 party
D E Doorbar for Otaraua Hapu — s274 party
Ngati Rahiri Hapu o Te Atiawa (Taranaki) Society Incorporated (Ngati Rahiri) has appealed part of a decision made by the New Zealand Historic Places Trust (the Trust) to grant a General Authority under s14 of the Historic Places Act 1993 to Todd Taranaki Limited (now Todd Energy Limited) to undertake earthworks within the area specified as the Mangahewa Road to Maui Pipeline at Tikorangi, in northern Taranaki. It is to be noted that there is no challenge to the grant of the Authority Ngati Rahiri (and the other parties) are quite willing to let the work go ahead. The only part of the decision that was appealed is the inclusion of the name Otaraua in Conditions 8, 9 and 14 of the Authority.
It was accepted at the hearing that condition 14 is of no practical significance — it requires the Trust to supply various parties, including Otaraua, a hapu of Te Atiawa iwi, to be supplied with copies of archaeological reports when the work is concluded. But those reports are now published by the Trust on its website in any event, and are available to anyone with an interest in them. That part of the appeal was not pursued.
The work that Todd Energy seeks to carry out is the construction of a pipeline to carry treated gas between the McKee-Mangahewa Production Station and the Maui pipeline, and also the installation of additional gathering lines between the northern Mangahewa wellsites and the McKee-Mangahewa Production Station. That will inevitably require earthworks and surface disturbance, with the possibility of disturbing archaeological sites.
The area in question is close to the small settlement of Tikorangi, which is inland from Waitara and Motunui, and north of New Plymouth. It is within the customary rohe (ie territory) of the Te Atiawa iwi, of which both Ngati Rahiri and Otaraua are hapu.
For clarity, it should be mentioned that neither Ngati Rahiri nor Otaraua are owners of the land affected by the proposed work. The landowners are local farmers who have each given separate consents to the work being undertaken on their land. The interests of the two hapu arise from historic and cultural associations with the land, rather than rights of current legal ownership.
The stated grounds for the appeal are that the area specified in the Authority is located entirely within the rohe of Ngati Rahiri (also a hapu of Te Atiawa) and that Ngati Rahiri has exclusive mana whenua and tangata whenua status over that area. As became apparent in the lodged evidence, the asserted consequence of that position is that Otaraua has no relationship with any of the land, save through its relationship with Ngati Rahiri as a subsidiary grouping of that hapu. That assertion is now accepted by Ngati Rahiri to be partially incorrect, in that it is now clear that part of the affected land, a portion some 150 — 200m wide to the north of Mangahewa Road, is within the rohe of Otaraua. We shall return to the implications of that later.
Conditions 8, and 9 of the Authority, granted on 18 December 2012 under No 2013/367, are these:
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8. Any archaeological work must be undertaken in conformity with any Tikanga Maori protocols or monitoring requirements agreed to by the Authority Holder and Ngati Rabin and Otaraua, so long as the legal requirements of the authority are met.
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9. If any koiwi tangata (human remains) are encountered, all work should cease within 20m of the discovery. The NZHPT Regional Archaeologist, NZ Police and Ngati Rahiri and Otaraua must be advised immediately, in accordance with Guidelines for Koiwi Tangata/Human Remains (NZHPT Archaeological Guidelines Series No 8), and no further work in the area may take place until they have responded.
Ngati Rahiri asserts a right of appeal under s20 of the Historic Places Act 1993, because it is an organisation that is directly affected by the grant of the authority. The relevant part of s20 is:
20 Rights of appeal
(I) Any person who is directly affected by any declaration, decision, condition, or review of any decision made or imposed by the Trust under -
(c) section 14(1)(a), or (b), or (10) (which relates to the Trust's powers in respect of an authority application); or …
Ngati Rahiri says that it is directly affected by a decision of the Trust because it claims mana whenua over the land the subject of the authority, and because it is named in the conditions as a body to be notified and consulted about aspects of the operation of that authority. At least to the extent that it is accepted that Ngati RAH has a relationship with the land, and has interests that may be directly affected by the proposed work, that is not in dispute. But a further issue about s20 is in dispute and we shall return to that shortly.
The HPT has considerable scope to impose conditions on the authorities it grants. The powers are in s14 of the Act:
14 Powers of Trust in relation to authority application
(1) On receipt of an application for an authority to destroy, damage, or modify any archaeological site or sites under section 11 or section 12 of this Act, the Trust may, subject to subsection (3) of this section, exercise one or more of the following powers:
(a) Grant an authority in whole or in part, subject to such conditions as it sees fit:
(b) Decline to grant an authority in whole or in part:
(c) Exercise all or any of the powers specified in any of sections 5, 16, 17, 18, and 21 of this Act.
(2) Where an application is made for a general authority, under section 12 of this Act, the Trust shall grant that application only if it is satisfied on reasonable grounds that there is no particular benefit to justify the likely cost of locating and identifying-
(a) Every individual site present within the specified area of land; or
(b) Every individual site of the class to which the application relates that is present within that area.
(3) Where an application made under subsection (2) of this section relates to a site or sites that the Trust considers to be a site of Maori interest, the Trust shall refer that application to the Maori Heritage Council to make such recommendations as the Council may consider appropriate, following such consultation as the Council considers appropriate. (emphasis added)
It can be seen that the power to impose conditions in sl4(l)(a) is broad and unfettered in its terms. We think it must, however, be a discretion subject to the sort of restrictions discussed in Newbury District Council v Secretary of State for the Environment [1981] AC 578:
…the conditions imposed must be for a planning purpose and not for an ulterior one, and that they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them.
The Newbury line of authority has been held to apply to conditions imposed on authorities issued under the Historic Places Act 1993 — see eg Ngatiwai Trust Board v NZHPT [1996] NZRMA 222, and that view is entirely logical. Naturally, to put the tests in the current context, one might replace planning with heritage, but the thrust and purpose of the Newbury fencing of the scope and content of conditions remains apparent and valid.
Self-evidently, the Trust must have considered the site to … be a site of Maori interest … in terms of s14(3) and so referred the application to its Maori Heritage Council. That Council, acting thorough a delegation (a topic to which we shall return), considered it appropriate to require both Ngati Rahiri and Otaraua to be consulted about the application. That was done by the applicant, and both hapu agreed to the authority being granted, but it is the case that Ngati Rahiri are concerned that, as they see it, Otaraua did so on the basis that it claimed mana whenua to at least some of the affected land when it was not entitled to do so.
So a core question to be resolved is whether the Trust's inclusion of the hapu of Otaraua in each of conditions 8 and 9 was for a heritage purpose, and not an ulterior one; whether the inclusion of that hapu reasonably related to the work permitted by the authority, and whether including it within the conditions framework was so unreasonable that no reasonable heritage authority could have done so.
As overarching guidance, s4 contains the purpose and principles of the Historic Places Act.
(1) The...
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