Background
The High Court recently issued a judgement addressing the obligations on decision makers in situations where there are competing claims as to relative status between Māori groups. In Ngāti Maru Trust v Ngāti Whātua Ōrākei Whai Māia Ltd [2020] NZHC 2768, Whata J heard an appeal from the Environment Court on a declaratory proceeding arising out of appeals against the grant of resource consents to Panuku Development Auckland to:
undertake a reclamation to extend a breakwater at Westhaven Marina, and
construct ship mooring dolphins and associated structures from the end of Queens Wharf.
The resource consents granted to Panuku contain conditions dealing with mana whenua engagement, including the placement of 19 pou whenua as part of each proposal, to recognise the 19 iwi authorities in Tāmaki Makaurau. Ngāti Whātua Ōrākei challenged those conditions on appeal, contending that the conditions breach Ngāti Whātua Ōrākei tikanga and cause significant adverse cultural effects.
Ngāti Whātua Ōrākei contested the disputed resource consent conditions, including the provision for pou whenua. Ngāti Whātua Ōrākei provided evidence that it is the iwi with “primary mana whenua” status within the Auckland CBD Waterfront area and has longstanding ancestral and contemporary relations with the CBD, Viaduct Harbour and Waitematā. That evidence accepted that other iwi had legitimate customary relationships to the Westhaven area, however rejected that those wider iwi have the same level of interest as Ngāti Whātua Ōrākei. Accordingly, Ngāti Whātua Ōrākei interpreted the proposal for 19 pou whenua as an erosion of its customary rights, and an improper elevation of the status of many other iwi who could not claim customary rights to the land in the Auckland CBD to the same extent as Ngāti Whātua Ōrākei.
In the process of determining the appeal against conditions, a declaratory proceeding was lodged, seeking that the Environment Court answer the question of whether it has jurisdiction “to determine whether any tribe holds mana whenua over an area the subject of a resource consent application”. The Environment Court reframed the question to ask whether a consent authority has jurisdiction “to determine the relative strength of iwi/hapu relationships in an area affected by a proposal” and answered the reframed question in the affirmative. Relevantly, the Environment Court found that the RMA does not invite decision-makers to identify “primacy” of mana whenua. The appellants lodged appeal proceedings.
High Court findings
The High Court recorded the fact that the RMA “is replete with references to kupu Māori” including concepts of kaitiakitanga and mana whenua; that Parliament “plainly anticipated that resource management decision makers will be able to grasp these concepts and where necessary, apply them in accordance with tikanga Māori”; and that local authorities and the Environment Court “regularly deal with these concepts and their application”. The High Court opined that all of this “necessarily demands that resource management decision-makers are able to identify, involve and provide for iwi and their mana whenua in accordance with mātauranga Māori and tikanga Māori”.
However, and importantly, the High Court distinguished between resource management decisions made by local authorities and the Environment Court under the RMA, as opposed to a process of conferring, declaring or affirming tikanga-based rights, powers or authority “whether in State law or tikanga Māori”. It held that the Environment Court was required to discharge its express statutory duties, including in Part 2 and taking into account the Treaty of Waitangi, and that duty may involve evidential findings in respect of applicable tikanga, including where different iwi make divergent tikanga-based claims.
Accordingly, the High Court held that resource management decision-makers have a duty to meaningfully respond to divergent claims by different iwi as to what is required to meet the statutory directions at ss.6(e), (g), 7(a) and 8 and other obligations to Māori. That duty could not extend to a right of veto (given the longstanding principle encapsulated in Watercare Services Ltd v Minhinnick)[1], however it may mean a choice has to be made as to which course of action best discharges the statutory duties.
The High Court was careful to emphasise that mana whenua-based claims must be clearly defined according to tikanga Māori, directed to the discharge of the RMA’s obligations to Māori and to a precisely articulated resource management outcome. This is necessary, in the Court’s view, to ensure that claims “are not simply an invitation to confer, declare or affirm tikanga based rights, power and authority” – which the Court held is a wider State law-based issue for determination by the High Court and/or Māori Land Court. Similarly, the High Court held that conditions purporting to state that a particular group holds mana whenua are likely to be ultra vires insofar as the condition is simply about declarations of mana whenua or rights per se. Appropriate conditions however, may seek to recognise and provide for the relationship of mana whenua with their whenua or other taonga in connection with an effect of the activity on the environment, including an effect on mana whenua.
Comment
The comprehensive decision of Whata J could be expected, given his practice area prior to going to the bench. It squarely addresses the matter and leaves no room for a decision-maker to simply avoid addressing competing claims by iwi. However, exactly what that duty requires will require careful consideration of the interface with what his Honour describes as “State law”. In other words, at what point is an evidence-based determination regarding the relative strengths of hapū/iwi relationships in an area affected by a proposal validly made under the RMA, as opposed to a question of mana whenua more broadly – a matter for the High Court and/or Māori Land Court?
Given the significance of Treaty settlement claims and the timing of hearings of applications for customary marine title or protected customary rights orders pursuant to the Marine and Coastal Area (Takutai Moana) Act 2011, issues around mana whenua status remain a focus of resource consent hearings. Counsel and decision-makers will need to understand this decision, and more broadly how to respond to claims raising tikanga-based rights, including drafting appropriate conditions.
[1] [1988] 1 NZLR 294 (CA) at 305.