RAIKES v HASTINGS DISTRICT COUNCIL [2023] NZCA 264

RAIKES v HASTINGS DISTRICT COUNCIL [2023] NZCA 264 [29 June 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA704/2022[2023] NZCA 264BETWEEN PETER RAIKES AND CAROLINERAIKESApplicantsAND HASTINGS DISTRICT COUNCILRespondentAND MAUNGAHARURU-TANGITŪ TRUSTInterested PartyCourt: French and Goddard JJCounsel: J W Maassen for ApplicantsM E Casey KC and A J Davidson for RespondentK M Anderson and M J Dicken for Maungaharuru-Tangitū TrustJudgment:(On the papers)29 June 2023 at 11.00 amJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicants must pay costs to each of the respondent and theinterested party for a standard application on a band A basis, with usualdisbursements.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)The application for leave to bring a second appeal[1] The applicants, Mr and Mrs Raikes, seek leave to appeal against a decision ofthe High Court1 determining an appeal on questions of law from theEnvironment Court.2 The Environment Court decision concerned eight sitescategorised as wāhi taonga in the proposed Hastings District Plan (Proposed Plan).The appeal to the High Court concerned only one of those sites, known asTītī-a-Okura, insofar as that site affected land owned by the applicants. That site isreferred to in the Proposed Plan as MTT88.[2] The application for leave to appeal to this Court is opposed by theHastings District Council, and by the Maungaharuru-Tangitū Trust (MTT), whichappeared as an interested party in the High Court.Background[3] MTT88 comprises approximately 70 hectares of rural land, part of which isowned by the applicants.[4] MTT88 was not originally identified as a wāhi taonga site in the Proposed Plan.MTT appealed to the Environment Court against the decision of the Hastings DistrictCouncil not to include a number of sites on the list of wāhi taonga in theProposed Plan, including MTT88. The Environment Court issued an interim decisionon that appeal on 28 May 2018.3 That interim decision was the subject of appeals tothe High Court by both MTT and the applicants. Cooke J allowed the appeals andremitted the matter back to the Environment Court for determination.4 The parties had1 Raikes v Hastings District Council [2022] NZHC 3075, (2022) 24 ELRNZ 598 [SecondHigh Court judgment].2 Maungaharuru-Tangitū Trust v Hastings District Council [2021] NZEnvC 98 [RevisedEnvironment Court decision].3 Maungaharuru-Tangitū Trust v Hastings District Council [2018] NZEnvC 79.4 Maungaharuru-Tangitū Trust v Hastings District Council [2019] NZHC 2576 [First High Courtjudgment].agreed that the appeal should be allowed, and the matter sent back to theEnvironment Court for further consideration, as it was common ground that theinterim decision had erred in law in a number of respects.5 The Judge concurred:he considered that the Environment Court had not engaged in the required analysis forthe purpose of reaching its conclusions.6[5] In July 2021 the Environment Court issued a revised decision, in which it heldthat site MTT88 should be identified as a wāhi taonga. The Environment Courtconsidered that the level of protection and control over the site proposed bythe Council was sufficient to provide for MTT's relationship with the site. The morestringent draft rules proposed by MTT for this site would be an unreasonableinterference with the rights of the landowners.7[6] The applicants appealed the revised decision to the High Court on a number ofquestions of law under s 299 of the Resource Management Act 1991 (RMA). Theyargued that the site should not have been identified as a wāhi taonga. They also arguedthat, in the event that determination was upheld, the extent of the site should be limited.They did not challenge the rules that would apply to the site if it was included in thelist of wāhi taonga in the Proposed Plan.[7] The Council took a neutral stance on this appeal to the High Court. The appealwas opposed by MTT as an interested party. In November 2022 Grice J delivered thesecond High Court judgment, in which she dismissed the applicants' appeal.The test for grant of leave to bring a second appeal[8] The application for leave to appeal to this Court against the second High Courtjudgment is brought under s 308 of the RMA, which provides that appeals againstdecisions of the High Court determining appeals on questions of law are to be dealtwith under subpt 8 of pt 6 of the Criminal Procedure Act 2011 (CPA) as if theHigh Court decision had been a first appeal on a question of law under s 300 of5 At [1] and [63].6 At [63]–[65].7 Revised Environment Court decision, above n 2, at [81].the CPA. Section 303(2) of the CPA, which applies to such appeals, provides thatthis Court must not give leave for a second appeal unless it is satisfied that:(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless theappeal is heard.[9] A second appeal on a question of law must raise one or more questions of lawthat are capable of bona fide and serious argument.8 The appeal must involve interestsof sufficient importance to outweigh the cost and delay of a further appeal.9Questions of law identified by the applicants[10] The applicants have framed the questions of law that they wish to pursue onappeal in a number of ways. In their submissions they say the relevant questions oflaw can be summarised as follows:(a) Was the High Court correct in its interpretation and application of theprovisions of pt 2 of the RMA, as relied on by MTT and theEnvironment Court?(b) Was the High Court correct to conclude that the outcome and reasoningof the Environment Court's decision met appropriate standards ofrationality, considering the RMA scheme and requirements?[11] In short, the applicants intend to argue that it is not open to a council to imposecontrols on the use of private land by designating that land as a wāhi taonga, andproviding for certain activities to be restricted discretionary activities, on the basis of:(a) spiritual or metaphysical associations with the land; or8 Gertrude's Saddlery Ltd v Arthurs Point Outstanding Natural Landscape Society Inc[2021] NZCA 398 at [19][20].9 Te Whare o Te Kaitiaka Ngahere Incorporated Society v West Coast Regional Council[2015] NZCA 356 at [23].(b) historical use of the land by tangata whenua (in this case, as a trail andfor seasonal hunting of tītī (mutton birds)), where those past activitieshave left no tangible artifacts or other physical traces on the land.[12] The applicants say that the spiritual and cultural values invoked as grounds foridentifying MTT88 as wāhi taonga are "beyond reason, being metaphysical throughcultural associations between places and gods or concerning mythical acts".[13] The applicants describe the grounds referred to in [11(b)] as relating to"matters of cultural memory only", which they say are not and cannot be part of theexisting environment because they are purely historical.[14] The applicants also argue, in reliance on the first High Court judgment,10 thatthe Environment Court did not perform the task it was directed to perform. They saythe first High Court judgment required a "particularised analysis of the nexus and themethod of rational assessment concerning [the applicants'] anticipated activities andeffects on [the cultural values of the land]". They identify this ground as both aquestion of law and as giving rise to a potential miscarriage of justice because, theysay, the second High Court judgment failed to ensure that the earlier directions in thefirst High Court judgment were performed.Discussion[15] We agree that the question whether it is open to a council to identify land asa wāhi taonga, and impose controls designed to protect Māori cultural connectionswith that land, in the circumstances described at [11] above is a question of public orgeneral importance. But we do not consider that this question is capable of bona fideand serious argument.[16] Section 6(e) of the RMA expressly refers to the relationship of Māori and theirculture and traditions with their ancestral lands, water, sites, wāhi tapu, andother taonga. All decision-makers under the RMA are required to recognise andprovide for that matter. Section 7 of the RMA requires decision-makers to have10 First High Court judgment, above n 4, at [42] and [47].particular regard to (among other matters) kaitiakitanga. The spiritual element ofkaitiakitanga has been recognised in decisions of this Court and of theSupreme Court.11 Section 8 of the RMA requires decision-makers to take into accountthe principles of the Treaty of Waitangi | Te Tiriti o Waitangi. It is, we think,self-evident that these provisions require decision-makers to have regard to, andprovide for, connections between hapū and their ancestral lands of a cultural, spiritualand historic nature as well as other more tangible connections.[17] The applicants' criticism of the rationality of the decisions of theEnvironment Court and High Court is misconceived. The question of whethertangata whenua have a cultural, traditional and/or spiritual connection to particularland that is sufficient to justify protection of that land in a district plan is a matter thatcan be established by evidence. A finding that cultural, traditional and/or spiritualconnections exist does not involve any finding about the "correctness" of any spiritualor metaphysical beliefs relevant to those connections. The susceptibility of the"correctness" of such beliefs to determination on the basis of evidence is a red herring:it is the existence and significance of the beliefs that a court can, and must, consider.The courts below did precisely that in the present case. It is not the role of this Courton a second appeal to revisit the assessment of the evidence by the Environment Courtand (so far as appropriate) the High Court.[18] Similarly, the existence of cultural and traditional connections based onhistorical uses of the land before that land was acquired by the Crown and sold toprivate owners can be established by evidence. It is not seriously arguable thatthe RMA permits a council to provide for protection of a site as wāhi taonga in adistrict plan on the basis of historical uses and their cultural and traditional significanceif and only if there are tangible artifacts or other physical traces of those uses onthe land.[19] We do not consider that there is any appearance of a potential miscarriage ofjustice: the second High Court judgment carefully analysed the Environment Court11 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZCA 86,[2020] NZRMA 248 at [12(c)] and [172]–[174]; and Trans-Tasman Resources Ltd vTaranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [160]–[161]per William Young and Ellen France JJ.decision, and concluded that the Environment Court had carried out the more detailedanalysis required by the first High Court judgment.[20] We accept the submission by the Council and by MTT that identification of thesite as a wāhi taonga in the proposed plan does not prevent future development on thesite, contrary to the applicants' claim. The applicants will be required to seek resourceconsent for certain specified activities on the site: any application for consent will fallto be determined by reference to the provisions of the RMA and the Proposed Plan(when operative). To the extent that the proposed appeal seeks to challenge therestrictions on activities on the site contained in the Proposed Plan, we accept thesubmission of the Council and MTT that the proposed rules to apply to the site werenot challenged in the courts below, so cannot be the subject of a (new) challenge on asecond appeal to this Court.[21] The other criticisms advanced by the applicants of the Environment Courtdecision and the second High Court judgment do not raise any issues of public orgeneral importance: they are specific to this case.Result[22] The application for leave to appeal is declined.[23] The applicants must pay costs to each of the respondent and the interested partyfor a standard application on a band A basis, with usual disbursements.Solicitors:Sainsbury Logan and Williams, Napier for ApplicantsHastings District Council, Hastings for RespondentDLA Piper, Wellington for Maungaharuru-Tangitū Trust