BURGOYNE v NORTHLAND REGIONAL COUNCIL & ANOR [2020] NZHC 189

BURGOYNE v NORTHLAND REGIONAL COUNCIL & ANOR [2020] NZHC 189 [17 February 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2019-488-23[2019] NZHC 189BETWEEN A BURGOYNE/TE TAUMATA NGATIKURI RESEARCH UNITAppellantAND NORTHLAND REGIONAL COUNCIL &ANORRespondentAND MOTUTANGI WAIHARARA WATERUSERS GROUPConsent HolderHearing: 26 November 2019Appearances: Appellant in personG J Mathias for RespondentA M B Green for Consent HolderJudgment: 17 February 2020JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 17 February 2020 at 3:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Thomson Wilson, WhangareiBrookfields, AucklandIntroduction[1] Mr Burgoyne and Te Taumatua O Ngati Kuri Research Unit together appealfrom a decision of the Environment Court, pursuant to s 299 of the ResourceManagement Act 1991 (the Act). The Research Unit appears to lack its own separatelegal identity and, if it does, is under the exclusive control of Mr Burgoyne. As such,I intend to refer solely to Mr Burgoyne as the appellant prosecuting the appeal in thisjudgment.[2] Mr Burgoyne was not represented by legal counsel at the hearing. Instead, hehad the assistance of Mr Wagener who spoke on his behalf in both the EnvironmentCourt and on appeal.Environment Court decision[3] The Motutangi-Waiharara Water Users Group (the Water Users) comprises anumber of individuals who own properties situated in the Aupouri Aquifer in the FarNorth. They made an application to take water from the Houhora, Motutangi andWaiparera sub-units of the Aupouri Aquifer. One of the Water Users is Te RunangaNgai Takoto, the registered owner of some of the land that was subject to theapplication.[4] The Kaimaumau-Motutangi wetland lies to the southeast and northeast of theproposed groundwater takes. It is said to be the largest wetland in Northland and thethird largest peat bog in New Zealand.[5] The Judge described the matter before the Environment Court as raising:1important issues about avoiding adverse effects on the natural values andattributes of significant indigenous vegetation, the management of freshwaterecosystems [and] wider issues of significant habitats of fauna under s 6(c) ofthe Act and Policy 11(a) of the New Zealand Policy Statement in the contextof appropriate aquifer management and abstraction.1 Burgoyne v Northland Regional Council [2019] NZEnvC 28 at [3].[6] A consent was granted to the Water Users by the Environment Commissioners.The Department of Conservation (DOC) was not satisfied with the conditions, andappealed against those conditions. DOC did not seek revocation of the consent. Itsought monitoring, sampling and the identification of trigger levels for actions toprevent possible harm.[7] Mr Burgoyne also appealed. He sought revocation of the consent. The Judgedescribed Mr Burgoyne's appeal as "somewhat difficult to follow" and raising issues"relating to the Treaty of Waitangi and the Regional Policy Statement."2 Mr Burgoyneis said to have given evidence largely relating to title issues and historical issuesrelating to the occupation of the land in question.[8] The Judge described the approach adopted by the Water Users as "adaptivemanagement."3 The Judge considered the principal issue in the case was "whether ornot the method utilised to avoid adverse effects on the area is an adequate method ofadaptive management."4[9] After the hearing, the landowners and Council proposed amendments to theconsent conditions. On 19 February 2019, the Court decided that it was generallysatisfied with these amendments and directed the parties to prepare a master consentwith the amendments suggested or indicated by the courts.5 Mr Burgoyne did notrespond, although the other parties did. The Court confirmed the consent conditionson 16 August 2019.6 Essentially, there were three main limbs to the Court'ssubstantive decision:7(a) Avoiding adverse environmental effects. The Court was satisfiedwith the adaptive management regime proposed by the landowners,where the development would be incremental, and the environmentwould be monitored to help prevent adverse effects. The Court said theregime would establish in due course an appropriate method for2 Burgoyne v Northland Regional Council [2019] NZEnvC 28 at [6].3 Burgoyne v Northland Regional Council [2019] NZEnvC 28 at [12].4 Burgoyne v Northland Regional Council [2019] NZEnvC 28 at [14].5 Burgoyne v Northland Regional Council [2019] NZEnvC 28.6 Burgoyne v Northland Regional Council [2019] NZEnvC 137.7 Burgoyne v Northland Regional Council [2019] NZEnvC 28.meeting the requirements of the Supreme Court's decision in SustainOur Sounds Incorporated v The New Zealand King Salmon CompanyLtd,8 the New Zealand Coastal Policy Statement, the National PolicyStatement on Freshwater Management and the Resource ManagementAct 1991 "in relation to ensuring the avoidance of adverse effects onsignificant indigenous vegetation, freshwater ecosystem processes andon significant indigenous habitats and fauna."9 The Court was alsoconcerned about potential adverse effects within the first 12 months,when the adaptive management regime would have insufficient data toenable its effective operation.10 It therefore imposed further conditionsto monitor the water level in the Reserve area, and of any salineintrusion into the aquifer. The consents could be suspended shouldexceedances occur, allowing full studies to be undertaken, and anyadverse effects on the Reserve Area of aquifer would constitute groundsfor revision of the consents.11(b) "Avoiding cultural effects". The Court concluded that Mr Burgoyne'sconcern about cultural effects and kaitiaki responsibility "relate to theavoidance of adverse effects."12 The Court said:13Although we do not accept that the anticipated absence of physicaleffects means there [are] no cultural effects, we are satisfied that theavoidance of adverse effects on the Kaimaumau-Motutangi Wetlandcoastal area (and the Reserve area) and the avoidance of significanteffects on the balance of the area would maintain the mauri of the area,and may improve it in the longer term given the resource informationthat would be supplied to iwi including Ngai Takoto, Ngati Kuri andothers.(c) The "land issue". Mr Burgoyne argued that Ngai Takoto were not thelegitimate owners of the lands because they had not produced thecertificate of title showing them as owner. He also disputed that his8 Sustain Our Sounds Incorporated v The New Zealand King Salmon Company Ltd [2014] NZSC40, [2014] 1 NZLR 673.9 At [49].10 At [3], [42].11 At [50], [54].12 At [62].13 At [62].hapu abandoned its claim to land at issue in this proceeding in respectof Wai 45. The Tribunal noted that Ngai Takoto is the registered ownerof some of the land the subject of the application and that any disputeabout the proper ownership of land was for another court.14 However,the Court acknowledged Mr Burgoyne's (and Ngati Kuri's) culturalinterest in the land and that "although one iwi may have had manawhenua, this does not mean that other hapu and iwi could not have alegitimate cultural relationship with the land and even utilise it fromtime to time and occupy it".15[10] The Court noted in conclusion that:16the advantage of granting such consent would be to not only add tothe economic activity of the Far North, but also to provide a basis forfuture employment in one of the most deprived sectors of NewZealand. It should also provide better information about this importantwetland area and potentially lead to better management in the longterm.Appeal regime[11] Section 299 of the Act provides:299 Appeal to High Court on question of law(1) A party to a proceeding before the Environment Court under this Actor any other enactment may appeal on a question of law to the HighCourt against any decision, report, or recommendation of theEnvironment Court made in the proceeding.(2) The appeal must be made in accordance with the High Court Rules2016, except to any extent that those rules are inconsistentwith sections 300 to 307.[12] On an appeal against a question of law arising out of an Environment Courtdecision, this court must accept the factual findings of the Environment Court.1714 At [67], [69].15 At [70].16 At [80].17 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 1, [2012]NZRMA 61 at [32]-[33].[13] To be successful on appeal, the appellant must satisfy the appellate court that:the court at first instance applied the wrong legal test; reached an unreasonableconclusion on the evidence before it; failed to take into account some relevant matter;or took account of some irrelevant matter.18Mr Burgoyne's appeal[14] I shared the Environment Court Judge's difficulty in following the argumentspresented in support of Mr Burgoyne's appeal. However as I understand it heessentially raises two points.[15] The first concerns land ownership. Mr Burgoyne challenges the title of someof the Water Users to the land which they now own. Mr Burgoyne has an associationwith the Kaimaumau area and can whakapapa back to the area and to Ngati Kuri. Hesays that his proven association with the land grants him the right to bring into questionthe rightful ownership of land in that area. He says that parcels of that land held bythe Water Users must be returned to Maori ownership.[16] In a somewhat related capacity, Mr Burgoyne also states that despite theownership issue, some of the Water Users are acting in breach of the OverseasInvestment Act 2005 by failing to disclose their investments in New Zealand.[17] His second key point appears to relate to the granting of consent and damageto archaeological sites and the wetland itself.[18] Mr Burgoyne says there has been a lack of respect for heritage sites within thewetland. He says these sites include Waitapu and early Pākehā settlements. He saysthat Heritage New Zealand wrote to the Water Users requesting an archaeologicalsurvey, and not only was this apparently ignored, but Mr Burgoyne says that these siteshave already been desecrated by the Water Users.[19] He also says that the current studies do not show where the recharge of theaquifer will come from. He says that should recharge from rainwater be inadequate,18 Countdown Properties (Northland) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.then the aquifer is unsustainable. Furthermore, he says that the amount that the WaterUsers intend to take under their consent are a concern, not only through depletion ofthat resource, but because of the threat of subsistence. Should subsistence occur, itwill have significant effects on not just the wetland, but the local area as well.Discussion[20] I shall deal with each of Mr Burgoyne's grounds of appeal in turn.[21] First, as to Mr Burgoyne's submission surrounding land ownership, I agreewith the Environment Court, and with counsel for the respondents on this appeal, thatchallenging a resource consent application is not an appropriate legal process forchallenging ownership of land. In particular, where the appellant is submitting thatland disputes and Waitangi Tribunal claims have not been properly determined, andthat land has been transferred from Crown entities to private interests in contraventionof s 27B of the State Owned Enterprises Act 1986, those matters are much moreappropriately dealt with in the Maori Land Court.[22] Furthermore, as the respondents submit, the Water Users' ownership of the landis not relevant to a determination of whether a consent should be granted or not. Asthe Court of Appeal in MacLaurin v Hexton Holdings Ltd said:19The structure of the Resource Management Act is such that "any person" mayapply for resource consents affecting land over which they might have noownership or other rights: see s 88 and Gordon and Others Brookers ResourceManagement 1991 (looseleaf ed) at [A88.01]. What consent authorities areconcerned with is the proposed activity's effects, not the nature of theapplicant's legal rights or interest in the particular land.[23] Nor does Mr Burgoyne's contention that some of the Water Users are overseasentities operating in breach of the Overseas Investments Act 2005 have any bearingon the grant of consents under the Resource Management Act 1991. In any event,Honeytree Farms Ltd, the entity Mr Burgoyne claims is in breach of the overseasinvestments' regime, has provided correspondence between itself and the OverseasInvestment Office that confirms it is complying with that Act, as the overseas personat issue owns less than a 25 per cent stake in that company.19 MacLaurin v Hexton Holdings Ltd [2008] NZCA 570 at [47].[24] Neither of those two points raised by Mr Burgoyne are questions of law thatthis Court should take into consideration when determining whether the EnvironmentCourt's decision was made in error of law.[25] As regards the suggested lack of respect for archaeological sites and MrBurgoyne's contention that the Water Users, when requested by Heritage New Zealandto undertake an archaeological survey, chose instead to not respond, the respondentssay these claims are without foundation. Mapua Avocados Ltd, one of the WaterUsers, contacted and engaged with Heritage New Zealand about the archaeologicalsites, which in turn granted several authorities to Mapua Avocados under s 48 of theHeritage New Zealand Pouhere Taonga Act 2014.[26] Finally, as to issues surrounding the recharge of the aquifer. Mr Burgoyne hasnot identified how that matter affects the Environment Court's decision to grant theconsents, subject to the various monitoring conditions it imposed. In particular, I notethat the Environment Court introduced a conservative water trigger level for thewetland in relation to the first 12 months of monitoring.20 That trigger level is toensure that any fluctuation in the water level results in an investigation to determinewhether it is a natural occurrence or is related to the extraction of water. The Courtalso noted that should the water level fluctuate, there is a potential for the consents tobe suspended to enable further studies to be conducted. Mr Burgoyne has not shownhow the Environment Court was wrong to have issued the consents subject to thoseconditions in the circumstances.[27] Nothing advanced or submitted by Mr Burgoyne, or on his behalf, hasidentified any error of law made by the Environment Court Judge that this Courtshould correct on appeal.Result[28] The appeal is dismissed._____________Paul Davison J20 At [56]-[58].