THE TRUSTEES OF THE MOTITI ROHE MOANA TRUST v BAY OF PLENTY REGIONAL COUNCIL [2022] NZSC 144

THE TRUSTEES OF THE MOTITI ROHE MOANA TRUST v BAY OF PLENTY REGIONAL COUNCIL[2022] NZSC 144 [13 December 2022]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 83/2022[2022] NZSC 144BETWEEN THE TRUSTEES OF THE MOTITI ROHEMOANA TRUSTFirst ApplicantTE MARU O NGĀTI RANGIWEWEHISecond ApplicantAND BAY OF PLENTY REGIONAL COUNCILRespondentSC 87/2022BETWEEN THE TRUSTEES OF THE MOTITI ROHEMOANA TRUSTApplicantAND BAY OF PLENTY REGIONAL COUNCILRespondentCourt: O'Regan, Ellen France and Williams JJCounsel: J W Maassen and O J V D Maassen for ApplicantsM H Hill for RespondentsJudgment: 13 December 2022JUDGMENT OF THE COURTA The application for leave to appeal in SC 83/2022 isdismissed.B The application for leave to appeal in SC 87/2022 isdismissed.C The applicants must pay the respondent one set of costs of$2,500.____________________________________________________________________REASONSTwo applications for leave[1] The applicants, the Trustees of the Motiti Rohe Moana Trust (the Trustees) andTe Maru o Ngāti Rangiwewehi, apply for leave to appeal to this Court against aHigh Court decision.1 There are two applications for leave, but both result from thesame High Court decision and it is convenient to deal with them in the same judgment.[2] The case concerns the decision of the Bay of Plenty Regional Council towithdraw a proposed plan change (PC9) to the Bay of Plenty Natural Resources Plan(the NRP). In its judgment, the High Court:(a) dismissed an appeal by the Trustees against a decision of theEnvironment Court refusing to grant a statutory declaration that theCouncil's withdrawal decision was unlawful;2 and(b) dismissed the judicial review proceedings brought by the applicants inrelation to the Council's withdrawal decision.[3] The applicants seek leave to appeal directly to this Court in respect of bothissues. To justify the grant of leave for such a "leapfrog" appeal, the proposed appealsmust satisfy the leave criteria specified in s 74 of the Senior Courts Act 2016 and meetthe exceptional circumstances test set out in s 75(1) of the Act.Background[4] The factual background is set out in the decision of the Environment Court andwe do not repeat it here.3 For present purposes, it is sufficient to note that PC9 wouldhave inserted provisions in the NRP to give effect to the National Policy Statement onFreshwater Management (NPS-FM). The NPS-FM was promulgated in 2010,replaced in 2014 and amended in 2017. The Council had consulted on PC9 in 2015,1 The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2022] NZHC1846 (Hinton J) [HC judgment].2 The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council[2020] NZEnvC 180 (Chief Environment Court Judge D A Kirkpatrick) [EnvC judgment].3 At [3]–[11].heard submissions in March 2018 and publicly notified it in October 2018. There weremultiple appeals against the notified PC9, including appeals by the applicants.[5] A draft new NPS-FM was released by the Ministry for the Environment inSeptember 2019. It would substantially change the 2014 version, as amended in 2017.In light of this development, a committee of the Council resolved to withdraw PC9;that resolution was notified in February 2020.[6] The Trustees sought a declaration in the Environment Court under s 310 of theResource Management Act 1991 (the RMA) that the Council's decision to withdrawthe plan change was unlawful as it failed to comply with s 8 of the RMA and was alsoirrational.4 Section 8 requires all persons exercising functions and powers under theRMA to "take account of the principles of the Treaty of Waitangi".[7] In response, the Environment Court issued a preliminary decision finding thatit lacked jurisdiction to make the requested declarations. It said that s 310 of the RMAdoes not authorise review of a council's decision to withdraw a proposed change to anapplicable plan "beyond determining whether the express conditions as to timing andthe giving of notice and reasons have been satisfied".5[8] The Trustees appealed to the High Court. They challenged the processfollowed by the Environment Court and also challenged its finding as to jurisdiction.High Court decision[9] The High Court Judge dismissed both challenges. On the first, she found noprocedural error in the Environment Court's treatment of the jurisdictional question asone worthy of preliminary determination.[10] On the second point, the High Court Judge agreed the Environment Court lacksjurisdiction to make declarations of illegality beyond those specifically providedfor by s 310 of the RMA.64 At [12].5 At [100].6 HC judgment, above n 1, at [49]–[71].[11] The Trustees separately brought judicial review proceedings in the High Court,challenging the Council's withdrawal decision on eight grounds. The High CourtJudge rejected all grounds of review.[12] The finding of most significance in the present context is the High Court'sfinding that the Council did not breach s 8 of the RMA when making the withdrawaldecision. In the course of making that finding, the High Court Judge observed that s 8does not require a Council to consider interests in the nature of customary propertyrights when making a withdrawal decision.7Proposed appeals to Supreme Court[13] The applications for leave to this Court are advanced on the basis that the pointsthe applicants wish to argue on appeal give rise to matters of general or publicimportance.8[14] The applicants acknowledge "exceptional circumstances" are required to bringa leapfrog appeal.9 In relation to the appeal against the decision to dismiss the appealto the High Court from the Environment Court (the RMA appeal), the Trusteesconcede the matters raised by that appeal are unlikely to meet the s 75 threshold.Rather, they submit that there are exceptional circumstances justifying a leapfrogappeal from the judicial review aspect of the High Court judgment and, therefore, theCourt should for administrative efficiency take up the RMA appeal concurrently.[15] The case for a leapfrog appeal to this Court from the judicial review aspect ofthe High Court decision is based on these three general propositions:(a) The delay that would result from following the normal appellateprocess is not acceptable in this situation.7 At [99].8 Senior Courts Act 2016, s 74(2)(a).9 Section 75(b).(b) Presently, there exists a risk of material impairment of or prejudice tothe customary interests of tangata whenua as a consequence of thejudgment of the High Court.(c) There is a need for authoritative guidance from the Supreme Courtabout the place of customary interests in the allocation of freshwaterresources.[16] We address each in turn.Delay[17] Delay is not sufficient on its own to grant a leapfrog appeal and deviatefrom the normal appellate hierarchy. This Court has previously observed that thelength of proceedings prior to the application for leave and the possibility of furtherdelay if the case proceeded in the Court of Appeal did not constitute"exceptional circumstances".10 That observation applies equally here.Prejudice to tangata whenua / material impact on customary interests[18] The applicants submit the Council's withdrawal decision—affirmed by theHigh Court—creates an ongoing risk of material impairment of customary freshwaterrights:(a) By affirming the Council's decision, the High Court permitted areturn to the status quo, being the "operative plan". The applicantssubmit that the operative plan does not recognise customary interests infreshwater. For that reason, customary interests may be materiallyimpaired since water rights will be reallocated for potentially lengthyterms under a regional policy instrument "that does not recognisecustomary interests".(b) Additionally, the Council's withdrawal decision stopped tangatawhenua from pursuing appeals in the Environment Court about the10 Scott v Williams [2019] NZSC 80, [2019] NZFLR 140 at [10].proposed plan change. Fourteen appeals were afoot when thewithdrawal decision was made. The object of some of the appeals wasto strengthen the proposed plan change to better safeguard customaryfreshwater interests.[19] Having considered these points, we are not persuaded that there is prejudice ofsuch a degree that a leapfrog appeal should be granted.[20] First, there is nothing raised in the applicants' submissions to suggest that the"prejudice" (to the extent it arises at all) cannot be cured by a successful appeal to theCourt of Appeal.[21] Second, the applicants' argument on prejudice assumes that resurrection of thewithdrawn PC9 proposal would successfully protect Māori customary rights. But thepremise of the applicants' attempted appeals in the Environment Court against theproposed PC9 was that the proposal failed to protect Māori customary interestsadequately. In those circumstances, we do not think there is sufficient force in theargument that the prejudice arising from the unamended NRP continuing to apply (asopposed to the unamended plan with a plan change as proposed in PC9) is such as tojustify a leapfrog appeal. Reinstating PC9 so that the fourteen appeals could proceedwhen the underlying NPS-FM is in a state of flux appears to have an element of futilityabout it.Authoritative guidance[22] Much of the applicants' submissions are directed at the harm said to flow fromthe High Court Judge's remark at [99] that the Council was not obliged by s 8 of theRMA to consider interests in the nature of customary property rights. The applicantshave interpreted this observation as establishing a general principle that customaryrights are always irrelevant to the allocation of resources under the RMA. We doubtthat such a general principle can fairly be extrapolated from the High Court Judge'sremark. It seems rather to address only the decision to withdraw PC9. In any event,it is a matter that can be fully ventilated in the Court of Appeal. We make no commentas to whether the High Court was correct in relation to the withdrawal decision.[23] In Port Otago Ltd v Environment Defence Society Inc, this Court declinedleave for a leapfrog appeal, in part because it considered that constitutional issuesrequiring authoritative determination should still be first dealt with by theCourt of Appeal.11 We make the same observation here.Result and costs[24] We decline leave for a leapfrog appeal in relation to the judicial review aspectof the High Court decision. In those circumstances, it is not necessary for us to addressseparately the application for a leapfrog appeal in relation to the RMA appeal. As thematters may proceed to hearing in the Court of Appeal, we do not make any othercomments on the merits of the proposed appeals.[25] The applications for leave to appeal are dismissed.[26] The applicants must pay the Council one set of costs of $2,500.Solicitors:Kaupare Law and Consultancy, Auckland for ApplicantsCooneyLeesMorgan, Tauranga for Respondent11 Port Otago Ltd v Environmental Defence Soc Inc [2020] NZSC 38.