Environmental / Resource Management

High Court tackles competing primacy of mana whenua groups under RMA

In Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Limited the High Court deals with the emerging acceptance of tikanga Māori in New Zealand’s modern legal system. Deciding how best to fit these two systems together after centuries of dominance of the European legal construct is no small feat, but the judiciary has taken on the challenge and we, as a country, are starting to see the results.

The issue at hand is one of ‘primacy’ and whether or not one mana whenua group can assert a greater customary authority in land or resource over another. In the decision appealed against, the Environment Court held that the Resource Management Act 1991 (RMA) does not invite decision-makers to identify primacy of mana whenua because Part 2 of the Act and the Auckland Unitary Plan (Operative in-part) (AUP) are relatively neutral and non-determinative on this issue. The Environment Court added that despite the complexity of navigating the number of parties claiming to be affected, local authorities must face up to these issues in all facets of resource consenting, whether of a Māori cultural-nature or otherwise.

Background

Ngāti Whātua Orakei Whaia Maia Ltd (Ngāti Whātua) filed appeals challenging the conditions of consent attached to resource consents obtained by Panuku Development Auckland. The Panuku consents allowed reclamation of part of the Westhaven Marina and the construction of two ship mooring dolphins and associated wharf access structures in the Auckland Harbour.

Ngāti Whātua challenged the conditions which deal with Mana Whenua engagement, including the placement of 19 Pou Whenua to recognise the 19 iwi authorities in Auckland. Ngāti Whātua claim to hold “primary mana whenua” to the area affected by the Panuku consents and consider that the provision for Pou Whenua is both in breach of their tikanga, and causes significant adverse cultural effects by assigning tribal mana and authority to those iwi who cannot claim customary rights to the same extent in the Auckland CBD area.

The Ngāti Whātua claim of primacy was challenged by a number of competing iwi authorities including, Te Ākitai o Waiohua, Te Patukirikiri, and Ngāti Maru (the Appellants). These parties, along with the Auckland Council, appealed the Environment Court’s findings to the High Court for further consideration.

The High Court Appeal

The Appellants first challenged the questions put to the Environment Court, claiming that its approach to reframing and then answering such questions was procedurally incorrect.

For context, the Environment Court was asked the following question (the Agreed Question):

Does the Environment Court have jurisdiction to determine whether any tribe holds primary mana whenua over an area the subject of a resource consent application:

  1. Generally; or
  2. Where relevant to claimed cultural effects of the application and the wording of resource consent conditions.

The Environment Court found that the Agreed Question was misdirected, and that the Court’s inquiry should not be into primacy of mana whenua because it does not reflect the potential for there to be many layers of differing interests among various parties (as is the case here). The Environment Court decided that part (a) of the Agreed Question was too broad and was not strongly argued by Ngāti Whātua. Jurisdiction was therefore declined concerning part (a).

Given that finding, the Environment Court considered that part (b) of the Agreed Question needed to be reframed and did so, as follows:

When addressing the s6(e) RMA [Resource Management Act 1991] requirement to recognise and provide for the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga, does a consent authority including the Environment Court have jurisdiction to determine the relative strengths of the hapu/iwi relationships in an area affected by a proposal, where relevant to claimed cultural effects of the application and wording of the resource consent conditions.

The Environment Court subsequently answered the Reframed Question in the affirmative and noted that there is clearly jurisdiction to hear and determine competing claims as to relative strength between Māori groups. However, it did not accept that it would be correct to consider that jurisdiction as a power to determine that a particualr iwi holds primary mana whenua over an area.

In the High Court the Appellants argued that no such jurisdiction arises. Ngāti Whātua disagreed, though they adopted the Environment Court’s approach, that is, a ‘relative strength of relationship’ approach.

Did the Environment Court err in Law and / or Procedurally?

The High Court allowed the first part of the appeal which was focused on the Environment Court’s decision to reframe part (b) of the Agreed Question. This is because, while the Reframed Question was dsicussed in argument and mooted as a potential approach, the Environment Court did not formally invite submissions on it.

The High Court threw out claims of substantive unfairness due to concessions made by counsel, but ultimately decided that a clearer opportunity should have been afforded to the Appellants and Ngāti Whātua to be heard on the Reframed Question and its answer, given the importance of the underlying subject matter.

Part (b) of the Agreed Question

Given that a procedural error had been found, the High Court was then tasked with answering part (b) of the Agreed Question.

The High Court referred to the concerns raised in evidence by Ngāti Whātua and considered that they did not require a determination that Ngāti Whātua is “pre-eminent or dominant”. Rather, the issues raised required an examination of whether, having regard to Ngāti Whātua tikanga, the pou whenua condition undermines their very being as Māori, and as Ngāti Whātua Orakei, in particular. If so, then consideration should turn to whether the imposition of a condition of this kind serves a sustainable management purpose, and accords with the directions at ss 6(e), 7(a) and 8 of the RMA. When framed this way, the High Court considered that no issue of serious jurisdiction arises.

In any event, the High Court answered part (b) of the Agreed Question as follows:

  • The Environment Court does not have the jurisdiction under Part 2 of the RMA to confer, declare or affirm tikanga-based rights, powers and/or authority.
  • The Environment Court may make evidential findings about tikanga-based rights, powers and/or authority insofar as that is relevant to discharge the obligations to Maori under the RMA.

The High Court otherwise refused to answer part (b) of the Agreed Question without the benefit of full argument and evidence on the meaning of concepts of tikanga Māori such as “primary mana whenua” and its relevance to the decision-making exercise.

In reaching its view, the High Court acknowledged that where an iwi claims that a particular resource management outcome is required to meet the statutory directions at ss 6(e), (g), 7(a) and 8 (or other obligations to Māori), resource management decision-makers must meaningfully respond to that claim. What is required, however, are claims that are clearly defined according to tikanga Māori, directed to the discharge of the obligations to Māori under the RMA and to a precisely articulated resource management outcome.

After applying this approach, it was accepted that Ngāti Whātua had articulated its claim in terms of the cultural effect suffered by the erosion of their customary rights.  But that claim was largely considered unqualified to establish pre-eminent mana whenua status per se, and diverted the decision-makers from their primary task of ascertaining the applicable tikanga Māori for the purposes of discharging its duties under the RMA to Māori. No claim of primacy was therefore established.

The Reframed Question

Drawing from its discussion and answer to part (b) of the Agreed Question, the High Court upheld the Environment Court’s decision to answer the Reframed Question in the affirmative. However, this is subject to the important qualification that a relevant strength claim must be clearly particularised and supported by evidence.

The Court summarised its findings as follows:

… when addressing the s 6(e) RMA requirement to recognise and provide for the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga, a consent authority, including the Environment Court, does have jurisdiction to determine the relative strengths of the hapu/iwi relationships in an area affected by a proposal, where relevant to claimed cultural effects of the application and wording of the resource consent conditions. But any assessment of this kind will be predicated on the asserted relationship being clearly grounded in and defined in accordance with tikanga Maori and matauranga Maori and that any claim based on it is equally clearly directed to the discharge of the statutory obligations to Maori and to a precise resource management outcome.

The appeal was allowed in part.

What does this mean in a wider context?

These types of issues are prevalent in the modern resource management space as more iwi authorities are becoming involved in planning and recourse consenting decisions. The paradigm is shifting and there are now clear acknowledgments in our common law that tikanga Māori has force to influence decisions of consent authorities and how their interests are to be protected by way of conditions.

Until now, there was no clear directive on how consent authorities should deal with cases where multiple iwi or hapū claim mana whenua status over a common area. What this case establishes is a bottom line in the sense of the obligations to Māori under Part 2 of the RMA.

A common concern amongst Māori is the risk of placing tikanga Māori concepts into the hands of consent authorities such as the Environment Court. However, this case establishes responsibility for competing Māori groups to clearly particularise their interests in an area when claiming an interest in land or a resource, and for consent authorities to acknowledge and attend to those interests no matter how difficult that task may be. If both sides play ball, then legislative intervention could be avoided altogether.

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