Environmental / Resource Management

Mana Whenua Influence on Planning Rules

Self Family Trust v Auckland Council [2018] NZRMA 323 (Original Environment Court decision)

Gock v Auckland Council (2019) 21 ELRNZ 1 (High Court decision)

Self Family Trust v Auckland Council [2020] NZEnvC 214 (Second Environment Court decision)

Introduction

This series of cases follow appeals against the decision of Auckland Council (Council) to decline recommendations to relocate the Rural Urban Boundary (RUB) to include two separate but related areas (the sites):

  • Crater Hill (also known as Ngā Kapua Kohuora), most of which is owned by the Self Family Trust (SFT); and
  • Pūkaki Peninsula, which is owned, in part, by Mr Joe and Ms Fay Gock (the Gocks).

The principal issue was the location of the RUB. A subsidiary issue for SFT was whether a Future Urban Zoning (FUZ) was preferable to allow for the future urbanisation of parts of the land.

These cases dealt with a range of issues, including scope, elite and prime soils, outstanding natural features, Structure Plan Guidelines and Special Purpose Quarry Zoned lands. However, it is the strong Mana Whenua, specifically Te Ākitai Waiohua (Te Ākitai), connection to the landscape containing these sites that is the focus of this article. The volcanic craters of South Auckland, including Ngā Kapua Kohuroa, are the footprints of Mataoho, a giant deity of Waiohua. The area around Pūkaki Crater and Crater Hill and the associated coastline was, and to an extent remains, the focus for habitation, gardening and food gathering by Te Ākitai. In addition, Crater Hill is closely linked to both of the historic portage routes from the Tamaki River to the Manukau Harbour.

Original Environment Court Decision

SFT put forward an opportunity for the Council and/or Te Ākitai to become legal property owners of up to 60% of Crater Hill and for the creation of significant public open space and legal access strips on Pūkai Peninsula (regarded by the Environment Court as counterfactuals).

The Environment Court recognised that the counterfactuals could offer protection to the individual (unscheduled and scheduled) sites of significance for Mana Whenua, as would future discoveries under the standard protocols. However, the Court struggled to see how the further fragmentation of the two sites into more allotments, and the construction of residential housing and light industrial development, would do much that is positive for the holistic world view of Te Ākitai. It also struggled to see how it would maintain the mauri of the coastal environment, notwithstanding the proposed transfer of some land back to Te Ākitai.

Drawing on the relevant planning instruments and strong focus on Mana Whenua issues contained therein, the Environment Court found that it is for the Tangata Whenua or a Mana Whenua group to decide how their kaitiakitanga should be exercised. It stated further:

If Te Akitai decide they consider the mauri of the area requires maintenance of all the land on Te Kapua Kohuara and Pūkaki Peninsula in its current condition (subject to zoning and existing use privileges the land owners have) rather than 60% ownership of Crater Hill plus open space (and legal access strips) on Pūkaki Peninsula, it is not for the Auckland Council or this court to contradict them (at least in the circumstances similar to this proceeding). That position is consistent with the holistic character inherent in the Maori world view (and expressed in policy B6.3.2(4)(a) and B6.3.2(6)(a)). Recognising Te Akitai's position is also a matter which section 8 of the RMA requires us to take account of. That is a procedural matter which can rarely be particularised in a plan.

The Court emphasised the vulnerable state of Te Ākitai as a whole, stating that the case is really the last gasp for Te Ākitai and their Mana Whenua. Overall, maintaining the status quo RUB was considered essential for sustaining the existing quality of naturalness, and thereby the mauri of the small undeveloped parts of the rohe of Te Ākitai.

High Court Decision

SFT and the Gocks (the Appellants) appealed the decision to the High Court, arguing that the Environment Court erred in determining how to discharge its obligations under sections 6(e), 7 and 8 of the RMA, as well as Chapter B6 Mana Whenua of the Regional Policy Statement. It was also argued by the Gocks that the Environment Court failed to take into account relevant matters, in particular how the proposal to include land within the RUB would provide a pathway through structure planning in consultation with Tangata Whenua to recognise and provide for the matters in sections 6(e), 7 and 8 of the RMA. 

The basic thrust of the Appellants’ submissions was that the Environment Court wrongly limited itself in taking the view that it could do only what Mana Whenua wanted or that Mana Whenua had a right of veto. They also contended that the Environment Court conflated concepts of kaitiakitanga and mauri and reached conclusions in relation to mauri which were not supported by evidence.

The High Court found that the Environment Court’s findings did not elevate Te Ākitai’s views to a veto status, but instead placed emphasis on the fact that the Environment Court recognised that Te Ākitai’s position is one that it is required to take account of.   Section 75(3) of the RMA requires the Environment Court to give effect to all relevant provisions of the RPS, and policy B6.2.2(1)(e) in particular, which states:

recognises Mana Whenua as specialists in the tikanga of their hapu or iwi and as being best placed to convey their relationship with their ancestral lands, water, sites, wahi tapu and other taonga.

Considered in this context, the High Court echoed the Environment Court in stating that Te Ākitai are best placed to decide how their kaitiakitanga should be exercised and how best the mauri of the area is maintained. Nor could the Environment Court be criticised for having had particular regard to the impact of moving the RUB on the holistic nature of the Mana Whenua world view, the exercise of kaitiakitanga or the mauri of the area, when that is precisely what it was required to do under RPS Policy B6.3.2(6)(a), (b) and (c).

In terms of evidence, the High Court considered that there was little real dispute that Te Ākitai’s evidence contemplated that the exercise of guardianship and stewardship of Pūkaki Peninsula and Crater Hill required maintenance of what the Environment Court called the status quo. Their evidence was that doing so was essential to respect and protect cultural values, and that preservation of life supporting soils for farming is part of maintaining the mauri of the area.

The High Court concluded that the Environment Court made no error of law in this regard.

Back to the Environment Court

Of the seven grounds of appeal advanced by the Appellants to the High Court, only one succeeded. The successful ground related to the Environment Court’s findings about elite and prime soils. The matter was remitted back to the Environment Court for consideration in light of the High Court’s findings in that respect.

Overall, it was found that the Sites are not suitable for urbanisation, and that maintaining it outside the RUB would give effect to the higher order planning instruments.

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