Te Whanau A Kai Trust v Gisborne District Council

• Jurisdiction: New Zealand
• Judge: Grice J
• Judgment Date: 23 June 2022
• Neutral Citation: [2022] NZHC 1462
• Docket Number: CIV-2021-416-000021
• Court: High Court

Between

Te Whānau A Kai Trust

Appellant

and

Gisborne District Council

First Respondent

and

Rongowhakaata Iwi Trust

Section 301 Party

and

Attorney-General

Intervener

[2022] NZHC 1462

Grice J

CIV-2021-416-000021

IN THE HIGH COURT OF NEW ZEALAND

GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA

TŪRANGANUI-A-KIWA ROHE

Local Government, Indigenous, Resource Management — appeal against decision of Environment Court regarding findings for recognition of property rights in waterways in regional freshwater plan — tikanga of appellant in the regional freshwater plan — Resource Management Act 1991

Appearances:

D M Smith and D C F Naden for the Appellant

P T Beverley, T J Ryan and E L Bennett for the First Respondent

No appearance for the Second Respondent

D A Ward and K Peirse-O'Byrne for the Intervener

The appeal was dismissed. Costs were reserved.

JUDGMENT OF Grice J (SUBSTANTIVE)

Contents

Introduction	[1]
Grounds of appeal	[4]
Appeal on question of law	[11]
Background	[19]
The Environment Court decision	[22]
Jurisdiction [53]
Evidential issues [63]
First issue on appeal - jurisdictional issue	[72]
Appellant's arguments	[72]
Analysis	[84]
Second issue on appeal - evidence of tikanga-based customary rights	[91]
Third issue on appeal — provision of resourcing to support exercise of tikanga-based rights	[104]
Fourth issue on appeal — wording of specific amendments	[114]
Definition of “Tikanga wai Maori”	[120]
Customary rights	[122]
Mana whenua values	[126]
Other documents outside planning documentation	[129]
Working together: methods	[132]
Conclusion	[137]
Costs	[140]

Introduction

1 This is an appeal on a question of law under the Resource Management Act 1991 (RMA) from a decision of the Environment Court dated 4 August 2021 (the Environment Court decision). 1 The Environment Court dismissed an appeal by the Te Whanau a Kai Trust (the Trust) against the decision of the Gisborne District Council (the Council) relating to submissions the Trust had made on the Regional Freshwater Plan (the Freshwater Plan).

2 The Trust is an incorporated charitable trust and mandated representative entity of the iwi of Te Whanau a Kai, an ancient iwi of Turanganui-a-Kiwa (Poverty Bay) whose ancestors arrived in the region about 1100 AD. Its historical Treaty claims span four separate Waitangi Tribunal inquiry districts from the headwaters of the Waioeka Gorge in the west to Matawhero in the east. The iwi has suffered serious breaches of te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty or te Tiriti), including the confiscation of their lands at Patutahi and the loss of other traditional lands, and deaths and atrocities inflicted by the Crown. 2 It is yet to settle its historical Treaty claims with the Crown.

3 The Council is a unitary authority and the local authority responsible for local government matters in the Tairawhiti area. 3 In its regional capacity, it is required to have a Regional Policy Statement (RPS) and Regional Coastal Plan in place. It may also prepare regional plans in relation to its other functions. 4 It was responsible for preparing the Freshwater Plan, which contains both the RPS and regional plan provisions for freshwater.

Grounds of appeal

4 At its heart, the Trust's appeal seeks recognition in the Freshwater Plan of the customary rights and interests (including proprietary interests) of Te Whanau a Kai in

relation to freshwater within its rohe to ensure that its interests are considered in decisions concerning those waters. 5

5 The appellant in the appeal to this Court, said that the Environment Court made three main findings:

• (a) that the Court did not have jurisdiction to recognise and provide for tikanga-based Maori proprietary rights or interests in freshwater (the jurisdiction finding);

• (b) that there was insufficient evidence before the Court to support a finding that the appellant's customary rights in respect of freshwater in its rohe are unextinguished (the evidence finding); and

• (c) that there is no power under the RMA to require the Council, through provisions in its Freshwater Plan, to provide resourcing to support the exercise of tikanga-based rights and responsibilities recognised for the appellant in the Freshwater Plan (the funding finding).

6 As a result of these findings, the Environment Court refused to make all of the amendments to the Freshwater Plan the appellant had sought as necessary to ensure its interests were considered.

7 The appellant brings the appeal to this Court on the following grounds:

(a) the jurisdiction finding is contrary to the Treaty provisions in the RMA (ss 6(e), 7(a) and 8), interpreted and applied consistently with art 2 of the Treaty and the Treaty principles of active protection and right to redress;

(b) the evidence finding was not reasonably open on the evidence and/or is tainted by the following analytical errors:

(i) it involves the application of an unjustifiably high test for continuity of connection and use under tikanga in order to support the recognition of a proprietary right or interest in freshwater;

(ii) it wrongly assumes that because others might also hold relevant tikanga-based Maori proprietary rights or interests in freshwater, it is not appropriate for the Environment Court to recognise and provide for those of the appellant; and

(c) the funding finding is contrary to the Treaty provisions in the RMA (ss 6(e), 7(a) and 8), interpreted and applied consistently with art 2 of the Treaty and with the Treaty principles of active protection and mutual benefit.

8 By way of relief, the Trust seeks findings that it has tikanga-based Maori proprietary rights and/or interests in freshwater in its rohe, and that these be “recognised and provided for” in the Freshwater Plan. It also seeks a finding that the Council had a duty to provide, through the provisions of the Freshwater Plan, “resourcing to support the exercise of the appellant's tikanga-based rights and responsibilities”. It seeks directions that amendments be made to the Freshwater Plan to reflect those findings.

9 The Council responds, in summary, as follows:

(a) The Environment Court made no error of law in finding that it did not have jurisdiction under the RMA to recognise and provide for tikanga-based proprietary rights or interests in freshwater in the manner proposed by the appellant because:

(i) the RMA was not intended to and does not address proprietary rights;

(ii) the text and purpose of the RMA does not provide scope for the Freshwater Plan provisions to confirm proprietary interests in freshwater;

(iii) the Courts have been clear that proprietary rights are not addressed under the RMA but that instead the RMA “floats, rather like oil on water, across the top of ownership rights without affecting the substance”; 6 and

(iv) the appellant has not provided any direct authority supporting its case that the Freshwater Plan could lawfully address Maori proprietary interests in freshwater, nor any example of the proprietary rights being addressed in an RMA plan.

(b) In any event, the Environment Court addressed the evidence before it and found there was insufficient evidence to support the amendments to the Freshwater Plan proposed by the appellant.

(c) The Environment Court declined to include Freshwater Plan provisions requiring the Council provide technical and financial assistance to the appellant. It made no error in doing so, correctly determining that the provision of funding for iwi is a matter for the Council under the Local Government Act 2002 (LGA), not for an appeal on an RMA plan.

(d) As to various proposals for alternative wording put forward in this appeal by the Trust, the Environment Court cannot reasonably be said to have erred in law by not adopting wording that was not put to it.

10 Consequently, there are four main issues on appeal:

• (a) whether the Environment Court erred in law in finding that it did not have jurisdiction under the RMA to recognise and provide for tikanga-based proprietary rights or interests in freshwater;

• (b) whether the Environment Court erred in law in finding that the evidence before it did not support a finding that the appellant retained unextinguished tikanga rights within its rohe;

• (c) whether the Environment Court erred in law in finding that there is no power under the RMA to require the Council, through a provision in its Freshwater Plan, to provide resourcing to support the exercise of tikanga rights that are recognised in the Plan; and

• (d) whether the Environment Court erred in rejecting a number of the appellant's proposed amendments to the Freshwater Plan.

Appeal on question of law

11 Section 299 of the RMA provides for appeals from the Environment Court to the High Court on questions of law. The appellant has the onus of establishing such an error of law. 7 The Supreme Court summarised what amounts to a question of law for appeal purposes in Bryson v Three Foot Six Ltd, 8 which has since been applied in an RMA context. 9 A Court may have made an error of law if it:

• (a) applied a wrong legal test; 10

• (b) reached a factual finding that was “so insupportable – so clearly untenable – as to amount to an error of law”; 11

• (c) came to a conclusion that it could not reasonably have reached on the evidence before it; 12

• (d) took into account irrelevant matters; 13 or

• (e) failed to take into account matters that it should have considered. 14

12 An appeal on a question of law is not a general appeal and it is not the role of a Court on appeal on a question of law “to undertake a broad reappraisal of the lower Tribunal or Court's factual finding or the exercise of its evaluative judgment”. 15 It must generally be the want of evidence rather than the...