Ngati Rahiri Hapu O Te Atiawa (Taranaki) Society Inc. v The New Zealand Historic Places Trust (Pouhere Taonga)

 
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[2013] NZEnvC 113

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge C J Thompson

Environment Commissioner I M Buchanan

ENV-2013-WLG-000014

In The Matter of an appeal under s20 of the Historic Places Act 1993

BETWEEN
Ngati Rahiri Hapu O Te Atiawa (Taranaki) Society Inc
Appellant
and
The New Zealand Historic Places Trust (Pouhere Taonga)
Respondent
Counsel/Representatives:

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

The appeal is declined — except to the extent noted at para [41]

Costs are reserved

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.

The issues were: 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 the Trust acted reasonably in considering that both Ngati Rahiri and Otaraua, regardless of rohe or mana whenua, had interests and were directly affected in terms of HPA.

Held: The Trust had considerable discretion to impose conditions on the authorities it granted. The power to impose conditions under s14(1)(a) was broad and unfettered. However, it was subject to restrictions that the conditions imposed had to be for a heritage purpose and not for an ulterior one, they must fairly and reasonably relate to the work permitted and could not be unreasonable ( Newbury District Council v Secretary of State for the Environment).

The Trust had to have considered the site to be of Maori interest and to have referred the application to its Maori Heritage Council. A core question however was whether the inclusion of Otaraua was reasonably related to the work permitted by the authority and whether including it was so unreasonable that no reasonable heritage authority could have done so.

Under the provisions of the Resource Management Act 1991, to be tangata whenua of a place, a particular grouping had to exercise mana whenua over that place. But it was not inevitable that only one grouping other could hold mana whenua in any given area ( Rangitane o Tamaki Nui a Rua Inc Soc (Re an application)).

A person or a grouping could have an interest in an area of land that was quite different from and independent of any concept of rohe or of mana whenua. For instance, an iwi could have an interest in a battle site where ancestral blood was shed and where or near in all likelihood their dead was buried. In such circumstances, the descendants would have an interest and could claim to be directly affected.

When considering an inter-Maori issue, the court was dealing with a concept that stood aside from issues of rohe and mana whenua. The concept was so different under s20(6)(d) that it might not require any Maori connection at all — given a sound factual basis a person of entirely European descent could plausibly claim an interest and claim to be directly affected in relation to a Trust decision about a particular piece of land.

Contrary to Ngati Rahiri's position, Otaraua had a relationship with and an interest in the land affected by the Authority, and could claim to be directly affected by work that could disturb archaeological sites on it. Tagging the land as not being within Otaraua's rohe might not be necessary to resolve the appeal but might help the parties restore a working relationship.

In Newbury terms, the Trust acted entirely reasonably in considering that both of these hapu regardless of rohe or mana whenua had interests and were directly affected in terms of HPA. The condition was consistent with the purpose and principles of the legislation.

Appeal declined except to the extent that a rider was added to the conditions to the effect that the inclusion of the hapu of Ngati Rahiri and Otaraua in the condition did not signify that the Trust had any view as to whether either or both may have mana whenua over or to be tangata whenua of the land subject to the general authority or that the land is within the rohe of either.

Appeal dismissed.

DECISION ON APPEAL
Introduction
1

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.

2

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.

3

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.

4

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.

5

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.

6

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.

7

Conditions 8, and 9 of the Authority, granted on 18 December 2012 under No 2013/367, are these:

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. 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.
Relevant legislation
8

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...

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