Waikanae Christian Holiday Park Incorporated v New Zealand Historic Places Trust Maori Heritage Council

• Jurisdiction: New Zealand
• Judge: Randerson J
• Judgment Date: 24 February 2015
• Neutral Citation: [2015] NZCA 23
• Docket Number: CA679/2013
• Court: Court of Appeal
• Date: 24 February 2015

[2015] NZCA 23

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Randerson, White and Cooper JJ

CA679/2013

BETWEEN

Waikanae Christian Holiday Park Incorporated

Appellant

and

New Zealand Historic Places Trust Maori Heritage Council

First Respondent

and

Takamore Trustees

Second Respondent

Counsel

I R Millard QC and M S Smith for Appellant

H J P Wilson and A James for First Respondent

L H Watson for Second Respondent (excused from appearance)

• A The appeal is dismissed.

• B The appellant must pay costs to the first respondent for a standard appeal on a Band A basis with usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Randerson J)

Introduction

1 This appeal has its genesis in a decision made by the first respondent to register land at Waikanae as a wāhi tapu area for the purposes of the Historic Places Act 1993 (the HPA). 1 A wāhi tapu is defined as a place sacred to Maori in the traditional, spiritual, religious, ritual or mythological sense. 2 A wāhi tapu area is an area of land that contains one or more wāhi tapu. 3 The decision resulted in a significant extension of an existing wāhi tapu area and included land owned by the appellant which operates a camping ground known as El Rancho. We will refer to the appellant as WCHP and to the first respondent as the Council.

2 The registration had been initiated by the second respondent (the Takamore trustees) who have informed the Court through counsel that they abide the decision of this Court. WCHP and other parties had made written submissions to the Council opposing the registration but the Council determined on 25 August 2011 to register the extended area as a wāhi tapu area.

3 WCHP then sought judicial review of the decision on a number of grounds. These were that the decision of the Council was invalid because:

• (a) The request by the Takamore trustees to review and extend the existing registration did not include a legal description of the land affected.

• (b) The Council had failed to disclose certain documents.

• (c) The Council ought to have allowed an oral hearing at which those opposing registration could be heard.

• (d) The Council gave no reasons for its decision.

• (e) The Council wrongly failed or declined to consider the adverse effects of the registration on the value of WCHP's land.

• (f) The cumulative effect of the errors was such that the Council's decision and the registration of the land as a wāhi tapu area should be quashed.

4 In a careful and comprehensive judgment delivered on 6 September 2013, Goddard J rejected all of the grounds raised by WCHP and dismissed the application for judicial review. 4

5 On appeal, WCHP submits the High Court was wrong to dismiss the application for judicial review and essentially canvasses the same grounds already rejected by the High Court.

The statutory scheme

Purpose and principles

6 The purpose and principles of the HPA are set out in s 4 of the Act:

• (1) The purpose of this Act is to promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand.

• (2) In achieving the purpose of this Act, all persons exercising functions and powers under it shall recognise-

  • (a) the principle that historic places have lasting value in their own right and provide evidence of the origins of New Zealand's distinct society; and

  • (b) the principle that the identification, protection, preservation, and conservation of New Zealand's historical and cultural heritage should-

    • (i) take account of all relevant cultural values, knowledge, and disciplines; and

    • (ii) take account of material of cultural heritage value and involve the least possible alteration or loss of it; and

    • (iii) safeguard the options of present and future generations; and

    • (iv) be fully researched, documented, and recorded, where culturally appropriate; and

  • (c) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga.

7 It is evident that the HPA has a single purpose in promoting the identification, protection, preservation and conservation of the historical and cultural heritage of New Zealand. Amongst other things, persons exercising functions and powers under the HPA are obliged to recognise the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga.

Administration

8 The HPA maintained the Historic Places Trust as the lead historic heritage agency in New Zealand. It is governed by an independent Board, the appointed members of which must have knowledge of tikanga Maori and te ao Maori (Maori worldview). 5

9 The Council 6 has a specialised role under the HPA in relation to any historic area, historic place, wāhi tapu or wāhi tapu area associated with Maori heritage. 7 All but one of its eight members are appointed for their specialist skills, knowledge or cultural background appropriate to the functions and powers of the Council. 8

10 The Judge described the membership of the Council in these terms:

[77] The chair of the Council, Sir Tumu Te Heuheu, is the paramount chief of Ngāti Tuwharetoa. Dr Apirana Mahuika is the chairman of Te Runanga O Ngāti Porou and has been recognised for his commitment to the preservation and protection of historic places. 9 Manos Nathan, a Council member, is a practising artist and educator in fine art in the tertiary sector. He has also been involved in researching and presenting evidence to the Waitangi Tribunal, including in relation to wāhi tapu issues. Another member, Mr Ian Athfield, was elected by the other members for his architectural expertise. 10 These examples illustrate the ambit of experience

and expertise deemed necessary for the discharge of the Council's functions, including its decision-making function.

11 The statutory functions of the Council are set out in s 85:

85 Functions of Council

The Maori Heritage Council shall have the following functions:

• (a) to ensure that, in the protection of wāhi tapu, wāhi tapu areas, and historic places and historic areas of Maori interest, the Trust meets the needs of Maori in a culturally sensitive manner:

• (b) to develop Maori programmes for the identification and conservation of wāhi tapu, wāhi tapu areas, and historic places and historic areas of Maori interest, and to inform the Board of all activities, needs and developments relating to Maori interests in such areas and places:

• (c) to assist the Trust to develop and reflect a bicultural view in the exercise of its powers and functions:

• (d) to develop its own iwi and other consultative and reporting processes and to recommend such processes for adoption by the Board, branches, and staff of the Trust when dealing with matters of Maori interest:

• (e) to make recommendations to the Trust on applications referred by the Trust under section 14(3) that relate to archaeological sites of Maori interest:

• (f) to consider and determine proposals for the registration of wāhi tapu and wāhi tapu areas:

• (g) to propose the registration of historic places and historic areas of Maori interest:

• (h) to make recommendations to the Trust on applications for resource consents referred by the Trust under section 33:

• (i) to perform such functions as are delegated to the Council by the Board:

• (j) to perform such other functions as are imposed on the Council by this Act or any other Act:

• (k) to advocate the interests of the Trust and the Council so far as they relate to matters of Maori heritage at any public or Maori forum.

• (emphasis added)

12 One of the functions of the Council is to develop Maori programmes for the identification, conservation and protection of wāhi tapu, wāhi tapu areas, historic places and historic areas of Maori interest. Of particular relevance to the present case is the function of the Council in considering and determining proposals for the registration of wāhi tapu and wāhi tapu areas. That includes the review, variation or removal of such registrations under s 37 of the HPA.

Registers required to be established under the Act

13 The Historic Places Trust is required to establish and maintain a register with four parts: one for historic places, one for historic areas, one for wāhi tapu and one for wāhi tapu areas. 11 The register must be open for public inspection. 12 Of particular significance are the purposes of the register under s 22(2) of the HPA:

• (2) The purposes of the register shall be as follows:

  • (a) to inform members of the public about historic places, historic areas, wāhi tapu, and wāhi tapu areas:

  • (b) to notify owners of historic places, historic areas, wāhi tapu, and wāhi tapu areas where necessary for the purposes of this Act:

  • (c) to assist historic places, historic areas, wāhi tapu, and wāhi tapu areas to be protected under the Resource Management Act 1991

Processes for registration and review of wāhi tapu areas

14 Section 32 of the HPA provides:

32 Provisions relating to wāhi tapu areas

• (1) Any person may propose to the Maori Heritage Council that any wāhi tapu area be entered on the register.

• (2) Every proposal for registration shall contain a legal description of the general area of land affected and specify the general nature of the wāhi tapu included in the area.

• (3) If satisfied that the proposal is supported by sufficient evidence, the Council must-

  • (a) publicly notify the proposal for registration in the manner that the Council considers appropriate; and

  • (b) give notice in writing of the proposal to-

    • (i) any person that-

      • (A) is an owner of the wāhi tapu area or part of the wāhi tapu area; or

      • (B) has a registered interest in the wāhi tapu area or part of the wāhi tapu area; and

    • (ii) the relevant territorial authority and regional council; and

    • (iii) the appropriate iwi.

• (4)...