Te Runanga o Ngai Te Rangi Iwi Trust and Others v Bay of Plenty Regional Council

• Jurisdiction: New Zealand
• Judge: J A Smith,Maori Land,C Fox,A J Sutherland,H M Beaumont
• Judgment Date: 21 December 2011
• Neutral Citation: [2011] NZEnvC 402
• Docket Number: (ENV-2010-AKL-000185) (ENV-2010-AKL-000192)
• Court: Environment Court
• Date: 21 December 2011

In the Matter of appeals under Section 120 of the Resource Management Act 1991 (the Act)

BETWEEN

Te Runanga O Ngai Te Rangi Iwi Trust

S Tuahakaraina on Behalf of Te Taumata O Nga Te Potiki

Ngatiruahine & L Waaka

Appellants

and

Bay of Plenty Regional Council

Respondent

Port of Tauranga Limited

Applicant

[2011] NZEnvC 402

Court:

Environment Judge J A Smith

Deputy Chief Maori Land Court Judge C Fox

Environment Commissioner A J Sutherland

Environment Commissioner H M Beaumont

(ENV-2010-AKL-000185)

(ENV-2010-AKL-000189)

(ENV-2010-AKL-000192)

BEFORE THE ENVIRONMENT COURT

Recommendations and decision of Environment Court (“EC”) on applications for consents for discretionary restricted coastal activities and discretionary activities — Port of Tauranga Ltd sought to widen and deepen entry channel into harbour to accommodate larger ships — appellants (local iwi) objected — area had been extensively occupied by Maori for centuries and their rights had already been impacted in the past — clear evidence of significant relationship with sites and their associated waters — whether integrated decisions could be reached — whether EC should not take into account metaphysical issues and consider only physical effects — effect of Port's failure to consult with tangata whenua at early stage.

Appearances:

Ms V J Hamm and Ms M Paddison for Port of Tauranga Limited (the Port)

Mr P H Cooney and Ms R Zame for Bay of Plenty Regional Council (the Regional Council)

Mr J P Koning and Mr C Manuel for Te Runanga O Ngai Te Rangi Iwi Trust (Ngai Te Rangi)

Ms H J R Rollison for Ngati Ruahine and others

Ms R S Tuahakaraina for herself

• A. The Court recommends to the Minister of Conservation that the restricted coastal activities be granted appropriate consents subject to Conditions being finalised and approved by this Court, as set out in the Court's Reasons for Recommendations, and the Draft Conditions attached as “C” for the following activities:

  Consent 65806

  • (a) Under sections 12(1)(c) and 12(1)(e) of the Resource Management Act 1991 and Rule 14.2.4(z) of the Bay of Plenty Regional Coastal Environment Plan to undertake a restricted coastal activity being to disturb the seabed of Tauranga harbour by dredging; and

  • (b) Under sections 12(1)(d) and 15A(1)(a) of the Resource Management Act 1991 and Rule 14.2.4(za) of the Bay of Plenty Regional Coastal Environment Plan to undertake a restricted coastal activity being to deposit dredged material in the coastal marine area; and

  • (c) Under section 12(2)(b) of the Resource Management Act 1991 and Rule 14.2.4(z) of the Bay of Plenty Regional Coastal Environment Plan to undertake a restricted coastal activity being to remove dredged material from the coastal marine area; and

  • (d) Under sections 12(1)(c) and 12(1)(e) of the Resource Management Act 1991 and Rule 14.2.4(z) of the Bay of Plenty Regional Environment Plan to undertake a restricted coastal activity being to disturb the seabed of Tauranga Harbour by maintenance dredging.

• B. The Court confirms consents being granted, subject to Conditions of Consent being finalised and approved by this Court as set outin the Court's Reasons for Decision and Draft Conditions for the following activities:

  Consent 65807

  • (a) Under section 15(1)(a) of the Resource Management Act 1991 and Rule 9.2.4(b) of the Bay of Plenty Regional Coastal Environment Plan to undertake a discretionary activity being to diffusely discharge sediment and sediment laden water to Tauranga Harbour during dredging; and

  • (b) Under sections 12(1)(d) and 15A(1)(a) of the Resource Management Act 1991 and Rule 14.2.4(b) of the Bay of Plenty Regional Coastal Environment Plan to undertake a discretionary activity being to deposit boulders and to carry out beach nourishment in the coastal marine area; and

  • (c) Under section 14(1)(2) of the Resource Management Act 1991 and Rule 10.2.4(d) of the Bay of Plenty Regional Coastal Environment Plan to undertake a discretionary activity being to take coastal water during dredging.

• C. The Port is to liaise with other parties and circulate Proposed Draft Conditions within 30 working days:

  • 1. A Consent Memorandum agreeing a set of conditions is to be forwarded to the Court by the Port within a further 30 days. If such a Consent Memorandum cannot be agreed between the parties then all parties are to file comments on the Port's proposed draft conditions within a further 20 working days;

  • 2. The Port and the Council may submit a joint memorandum within the above 20 days should they wish to do so.

• D. Any application for costs to be filed within 50 working days. Any replies to be filed a further 10 working days thereafter.

RECOMMENDATIONS TO THE MINISTER OF CONSERVATION AND DECISIONS OF THE ENVIRONMENT COURT

REASONS FOR RECOMMENDATIONS AND DECISION

Introduction

1 How do we integrate the competing interests of the Port of Tauranga (the Port) seeking to widen and deepen the entrance to its entry channel to accommodate larger ships, while recognising and providing for the legitimate cultural concerns and relationship of relevant local iwi who have an interest in Mauao (Mt Maunganui), Panepane Point on Matakana Island, and the large pipi beds in and around the entrance to the wider harbour of Tauranga Moana known as Te Awanui?

2 In this decision we examine these questions in the context of the Resource Management Act (the Act), and consider a breadth of scientific, cultural and metaphysical concerns. This case highlights many of the tensions inherent in the Act and the need to exercise careful value judgments in order to achieve sustainable management as that term is defined in the Act.

3 As was noted by the Privy Council in McGuire v Hastings District Council 1

• 21. … The Act has a single broad purpose. Nonetheless, in achieving it, all the authorities concerned are bound by certain requirements and these include particular sensitivity to Maori issues … While, as already mentioned, this cannot exclude compulsory acquisition (with proper compensation) for necessary public purposes, it and the other statutory provisions quoted do mean that special regard to Maori interests and values is required in such policy decisions as determining the routes of roads.

4 In considering this case, the Court has had regard to the implications of the Privy Council decision paragraphs [28] & [29] 2 for the protection of Maori land rights under the Act, and the appropriate composition of the Court in such cases. Commissioner Sutherland brings to the Court extensive experience and reputation in the area of harbour hydrodynamics. Commissioner Beaumont brings scientific expertise. The Court also

includes Deputy Chief Maori Land Court Judge Fox to ensure cultural issues are considered and addressed

The Context of the Application

5 The Port of Tauranga is accessed via the Pacific Ocean through an entrance between Mauao and Matakana Island (more particularly Panepane Point). Beyond the entrance is a wide harbour (Tauranga Moana, or more particularly Te Awanui) as shown on the attached General Map marked A, with the Port located largely along the Mt Maunganui Spit between Tauranga and Mt Maunganui. The shipping channel runs from Panepane Point directly to the wharves at Mt Maunganui. It then runs alongside these wharves directly to the Sulphur Point wharves and Stella Passage, the entrance to the southern or upper harbour.

6 There are two other significant channels in the harbour:

• [a] the Western Channel, running east/west to the south of Matakana and Rangiaea Islands; and

• [b] the Otumoetai Channel, extending westwards from Sulphur Point. Together with the shipping channel, these channels bound a shallow section of the harbour known as Centre Bank or Te Paritaha. This area has portions exposed at low tide and contains extensive pipi beds.

7 We will discuss the history of Maori occupation in this area shortly. Suffice for current purposes to note that the area has been extensively occupied by various iwi for many centuries. Other iwi have also had ability to access the area by agreement with local iwi. Mauao is a central element of the oral tradition of all local iwi, as is Tauranga Moana. As well as a marker for all residents in the area, Mauao also has major cultural and ritual significance for Maori. Mauao has been vested in trustees for local iwi for the last few years in recognition of its general importance to Maori.

8 The Port utilises only a part of Te Awanui, namely a reach to the main entrance at Panepane Point and then a reach across Pilot Bay to the Mt Maunganui wharves (known as Cutter Channel) and then a long section alongside the wharves (known as the Maunganui Roads). In more recent years the Port has developed container facilities on the Tauranga side of Maunganui Roads (Stella Passage) and is seeking to extend those to provide for larger ships and more container handling. The current access for shipping to the wharves is provided by resource consents which have been granted to allow dredging to depths of up to 14.1m in the outer channels (the Entrance Channel and part of the Cutter Channel) and to 12.9m in the inner channels (for the remainder of the Cutter Channel, Maunganui Roads as well as the Stella Passage).

9 The earlier deepening and widening of the entrance channel altered part of Tanea Shelf, at the sub-tidal part of Mauao adjacent to the entrance. It is also clear that the continued dredging to maintain channel depth has had an impact on the pipi beds within the entrance channel and, to a lesser extent, on the sides of the entry channel.

10 There have been a significant number of historical changes to the harbour as a result of the Port activity, including the construction of the wharves, the reclamation and subsequent construction of the container facilities on the Tauranga side at Sulphur Point, and the widening and deepening of the...