HERITAGE NEW ZEALAND POUHERE TAONGA ACT – PANDORA’S BOX FIRMLY SHUT BY THE ENVIRONMENT COURT

A summary of the Environment Court Interim Decision Greymouth Petroleum Ltd v Heritage New Zealand Pouhere Taonga [2016] NZEnvC 11

Introduction

Greymouth Petroleum applied to Heritage New Zealand (HNZ) for an authority to modify or destroy an archaeological site in Taranaki as part of its establishment of its Kowhai D well site. No known archaeological site was known to exist at the well site, but the ‘general’ authority was sought in the event that site earthworks encountered unrecorded archaeological evidence.  This precautionary approach is relatively common, although such authorities are interesting in that they relate to something which is, at the time of the determination, unknown.

HNZ declined the application. Rather remarkably, the decision to decline the application had nothing to do with any modification or destruction which might be occasioned by the well drilling activities, but instead related to the broader cultural landscape within which the work was to occur, namely an area within which it was contended was the burial place of a “significant individual”. Greymouth argued that HNZ’s approach to use the application to protect other sites of interest to Maori within a broader cultural landscape would then open Pandora’s Box. The Environment Court agreed, and in the process gave HNZ a lesson in HNZPTA 101: Statutory Interpretation and Natural Justice.

HNZ Jurisdiction

It was contended by a Hapu representative that Wiremu Kingi (a renowed Te Atiawa leader, signatory to the Treaty, and opponent of Taranaki land sales) was secretly buried in the vicinity of the well site (within an approximate 300m radius). The representative was, the Court heard, the only person entrusted with the location of the burial site. That position was hotly contested by Greymouth partly because such a burial location was at odds with documentary evidence.

Greymouth argued (rightly) that in determining applications for authority, HNZ is limited in its consideration to those effects of the proposal on the archaeological site which an applicant sought to modify or destroy, and not to wider off-site effects (here non-physical effects on the alleged burial location). For its part, HNZ’s position was that the application impacted on the integrity of Maori cultural values associated with the wider landscape, and that it was obliged to take into account the cultural values associated with the wider landscape: rather than solely the values attached to any particular archaeological site.

The Court noted the Heritage New Zealand Pouhere Taonga Act distinguishes between a historic place and a historic area. The former can include archaeological sites which are in turn defined as any place (including a building or structure) that is associated with pre-1900 human activity and may provide evidence relating to the history of NZ. Critically, the provisions of the Act that deal with authorities (which are the authorisations to do something under the Act), relate to modifying or destroying an archaeological site. HNZ argued once it has jurisdiction, it is obliged to not focus narrowly solely on “what is dug up”, but take into account effects on the wider area. The Court considered that the provisions of the Act on authorities were “directed” and that they make it clear the matter under consideration is the particular archaeological site which a person proposes to modify or destroy. That does not extend to the wider area. In support of that finding, the Court referred to section 46 of the Act which sets out information that must be included with an application for an authority. That information relates exclusively to values of the archaeological sites itself and not the wider cultural area/landscape. While the matters that are to be considered when determining an application are very wide in scope, they are clearly matters which apply to the archaeological site in respect of which an application has been made. In that respect, any cultural concerns were clearly (and only) of the site itself. Were that not the case, the Court agreed with Greymouth that a Pandora’s box would be opened where HNZ were permitted to use an application to protect other sites or places of interest to Maori.

Process

Having lost so convincingly on a matter of simple statutory interpretation, matters got worse for HNZ. The Court reviewed the process adopted by HNZ when considering the Greymouth application. Unlike the RMA, there are no notification provisions in the Act. Notwithstanding, HNZ engaged extensively with representatives of two hapu (one of which opposed the application and the other who did not). The process adopted was noted by the Court to be “disturbing”, as the HNZ’s Maori Heritage Council agreed to defer the application in accordance with the staff recommendation so that the representative of the opposing hapu had an opportunity to influence and change the position of the supporting hapu. The Court was also critical of the staff report which adopted an uncritical acceptance of the basis for the off-site effects on the burial site.

In what could only be found to constitute a breach of natural justice, Greymouth was not made aware of the contents of the staff report, nor the recommendation to decline the application due to the contended presence of the burial site. The Court described the situation as “entirely unsatisfactory” and not surprisingly concluded that Greymouth was entitled to know about the report/recommendation and be given the opportunity to respond to the same prior to a decision being made.

The Court reminded HNZ that it acts in a judicial or semi-judicial capacity, and that it is obliged to act fairly and in accordance with the rules of natural justice. The failure to refer the staff report recommending delaying the decision, and advocating for a particular outcome without reference to Greymouth fell short of the required standard.

Substance

In a clean sweep for Greymouth, the Court went onto consider the merits of the decision. The Court concluded that maintaining the secrecy of a site was a double-edged sword – while it avoids identification, it does not allow the Court an ability to consider effects on the site. To counter the evidence for HNZ, Greymouth’s witness produced a historical narrative which indicated that the burial site may not even be in the location asserted. Ultimately the Court found on the balance of probabilities that it was unable to find conclusively the burial site was within a 300m radius of the well site.

The Court concluded the well site structures were unremarkable and modest structures and it struggled to understand how someone could object to the presence of the well structures in a working farm environment. The Court heard no evidence as to why a 300m buffer was inadequate or indeed why the buffer distance of 50m or 100m contained in the district plan was inappropriate. Ultimately the Court found HNZ witnesses were seeking a right of veto over activities in the vicinity of, but not within, their cultural sites. That is not permitted by the Act.

The decision is a timely reminder to HNZ on its (limited) jurisdiction when considering authorities, and on the importance of upholding natural justice considerations at all times. As for Wiremu Kingi, his resting place remains a mystery – and perhaps for the Hapu that is a sufficient outcome.

 

 

Note: Cover image sourced from www.stuff.co.nz.

 

Posted on March 8, 2016 .