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

 
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[2011] NZEnvC 402

BEFORE THE ENVIRONMENT COURT

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)

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
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

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.

The issues were: whether an integrated decision under Part 2 Resource Management Act 1991 (“RMA”) (purpose and principles) could be reached; whether EC should consider only physical effects of a proposal and not take into account metaphysical issues; and effect of the Port's failure to consult with tangata whenua at early stage.

Held: The EC could not undo past wrongs but could (to a limited extent) mitigate the damage caused, through conditions that addressed cumulative effects. In principle local government and the Port should partner in restoration projects to the benefit of all users, including tangata whenua. It was unfortunate that the Port had not consulted with local iwi early on the process. A publicly listed company working in a highly sensitive area identified in all relevant national and regional documents had an obligation to consider tangata whenua issues with the relevant parties.

The application fell to be considered under s104 RMA (consideration of applications). Evidence regarding the hydrodynamic, morphological, ecological, cultural and economic effects had to be evaluated. The EC was also required to have regard to a range of policy statements and plans and any other matter considered relevant and reasonably necessary to determine the application. As Maori issues were involved regard had to be had to s6 (matters of national importance), s7 (other matters) and s8 (Treaty of Waitangi) RMA.

There was undisputed evidence that Mauao and Te Awanui and their surrounds were iconic lands and waters of great historic and cultural significance to the iwi of Tauranga Moana. Their relationship with these extended back to the settling of Aotearoa by their ancestors from Hawaiki, The proposal to dredge, widen and deepen the channel on the mataitai reserve would result in significant adverse cultural effects on the exercise of the kaitiakitanga and rangatiratanga of the appellants.

The cultural effects (which included interference with Mauao and loss of kaimoana) had to be considered alongside the undisputed evidence of the Port that it was of national and regional economic significance. The ability of the Port to develop further would ensure its continued relevance to exporters who relied on efficient and cost effective access to international markets.

There were no alternative methods or routes which would allow for the deepening of the channel with lesser effects. It was not a realistic alternative that the Port not be used for big ships as this would not provide for efficient use of the existing infrastructure. That was not a decision the EC could make; and if a consent could not be granted without unacceptable impacts, then it should be refused rather than suggesting another port was more appropriate.

The NZ Coastal Policy Statement (Gazetted on 4 November 2010) was clearly relevant to the application. In particular objective 6 stated that “the protection of the values of the coastal environment [did] not preclude use and development in appropriate places and forms, and within appropriate limits”. The policy was an attempt to more explicitly state the tensions inherent in Part 2 PMA. Important infrastructure within the coastal environment was always a matter the EC had regard to ( NZ Rail v Marlborough District Council). The policy statement identified the various issues that needed to be integrated when reaching a decision on a coastal activity. Importantly, objective 3 explicitly recognised the status of tangata whenua as kaitiaki of the coastal environment and provided for their involvement in its management. Although consultation was not mandatory, it was hard to see how the Port could have addressed these issues without doing so.

The regional documents such as the Regional Coastal Environment Plan (“RCEP”) and the Operative Bay of Plenty Policy Statement recognised the importance of the Port for its economic activity and being able to remain open for continuing trade. The RCEP did not give the Port carte blanche based on its economic value but required integration of a complex series of issues to reach a conclusion on whether a consent was appropriate. Overall the regional documents were consistent with an approach involving tangata whenua and decision-making relating to critical matters of significance such as in this case.

Vessels that would require the widening of the channel to berth at the Port had yet to appear in NZ. It was to the advantage of all that the widening should be delayed as long as possible and the dredging done in two stages. This would give the parties more time to appreciate the positions of the other parties and work towards a better solution. The conditions proposed by the Port could be varied where appropriate to adequately avoid, mitigate or remedy all the cultural effects.

It was accepted that the appellant's view of Mauao and Te Awanui as their tipuna or ancestors meant that they could never, as a matter of tikanga, agree to the Port's application. However the provisions of Part 2 relating to dealing with Maori interests did not give a veto power over development under the RMA. Rather those interests had to be balanced against the other matters in Part 2 and the overriding purpose of the RMA to promote sustainable management of natural and physical resources.

Clearly the cultural effects did have to be taken into account by the EC. The included a range of impacts including those that might affect historic, traditional and spiritual aspects of the relationship Maori had with their ancestral lands, waters, waahi tapu and other taonga and their kaitiakitanga. The Court rejected the Port's submission that the EC should only have regard to the physical effects of the proposal (the physical effects such as from dredging impacted on the cultural effects). The RMA did not dismiss metaphysical issues at all but balanced all factors including social and cultural. Small physical changes could have more serious consequential effects on historic, traditional and spiritual aspects of the relationship Maori had with the lands. The appellants had a long established, well-recognised, and vital relationship with the area and modification to the area would impact on that relationship, which needed to be recognised by the Port.

The Court recognised the deep insult to the mana of some kaumatua from the way in which this application came to their notice. Seen from their perspective, it as yet another slap in the history of offence as set out before the Waitangi Tribunal. This showed a yawning chasm of insight sometimes displayed by large infrastructure companies. The regional and national policy documents contemplated discussions with tangata whenua. Further examples of applications made without proper approach and consideration of the requirements of the relevant national and regional documents could lead to refusals for consent.

Consent recommended and granted subject to conditions and certain amendments.

  • 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...

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