NGĀI TAMAHAUA HAPŪ COMMITTEE v HERITAGE NEW ZEALAND POUHERE TAONGA [2021] NZHC 2033

NGĀI TAMAHAUA HAPŪ COMMITTEE v HERITAGE NEW ZEALAND POUHERE TAONGA [2021]NZHC 2033 [6 August 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2021-463-30[2021] NZHC 2033UNDER Section 299 of the Resource ManagementAct 1991AND IN THE MATTER of an appeal against a decision to declinewaivers to appeal out of time againstgranting Archaeological Authorities2020/688, 2021/18 and 2021/202BETWEEN NGĀI TAMAHAUA HAPŪ COMMITTEEAppellantAND HERITAGE NEW ZEALAND POUHERETAONGARespondentŌPŌTIKI DISTRICT COUNCILAuthority holderHearing: 27 July 2021(Heard at Hamilton)Appearances: The appellant in person, by its chair, T HerewiniV N Morrison-Shaw for the respondentM H Hill for the interested partyJudgment: 6 August 2021JUDGMENT OF JAGOSE JThis judgment was delivered by me on 6 August 2021 at 3.30pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Atkins Holm Majurey, AucklandCooney Lees Morgan, TaurangaCopy to:The appellant[1] The Ngāi Tamahaua Hapū Committee (the "Committee") appeals against therefusal by Chief Judge D A Kirkpatrick in the Environment Court at Auckland on19 March 2021 to waive time for the lodging of appeals against Heritage New ZealandPouhere Taonga's ("HNZPT") grant of archaeological authorities to theŌpōtiki District Council (the "Council").1 No issue is taken with the Committee'sstanding to pursue its appeal against refusal of waiver.Background[2] Among other things, the Heritage New Zealand Pouhere Taonga Act 2014:2 prohibit[s] the modification or destruction of an archaeological site unlessan authority for the modification or destruction is obtained from Heritage NewZealand Pouhere Taonga under [the] Act .[3] For the purposes of its conduct of a very substantial development ofŌpōtiki Harbour in the eastern Bay of Plenty, in the course of which localarchaeological sites risked modification or destruction, the Ōpōtiki District Council(the "Council") sought and obtained three archaeological authorities fromHeritage New Zealand Pouhere Taonga ("HNZPT"). The three authorities relaterespectively to preliminary enabling works, works to remediate a wastewater dispersalsystem and the substantive harbour works. They are subject to a variety of conditions,including of the Council's advice to HNZPT within five working days of completingon-site archaeological work, and its provision of follow-up interim and final reportswithin respectively 20 working days and 12 months of that completion.Statutory context[4] Archaeological authorities commence on the expiry of the time for lodging anappeal if no appeal is lodged, or any appeal is withdrawn or determined by theEnvironment Court.3 The time for lodging an appeal is "not later than 15 working daysafter notice is given of the decision being appealed against".4 The Committee lodgedappeals against each. That timeline here is as follows:1 Ngāi Tamahaua Hapū Committee v Heritage New Zealand Pouhere Taonga [2021] NZEnvC 037.2 Heritage New Zealand Pouhere Taonga Act 2014, s 5(2)(e).3 Section 54(1).4 Section 58(3)(c).Works Notice Expiry LodgingEnabling 28 May 2020 18 June 2020 23 December 20205Wastewater 23 October 2020 16 November 2020 17 December 2020Harbour 25 November 2020 16 December 2020 21 December 2020Thus counsel contend the Committee's appeals respectively were 128, 23 and fourworking days late.6[5] Appeals against the grant of an archaeological authority are to "be heard anddetermined by the Environment Court in the manner provided for by or underthe Resource Management Act 1991".7 Section 281(1)(a)(ii) of the 1991 Act enablesa person to "apply to the Environment Court to waive a [statutory or regulatory]requirement about the time within which an appeal or submission to theEnvironment Court must be lodged".[6] Section 281(2) prohibits the Environment Court's grant of such an application"unless it is satisfied that none of the parties to the proceedings will be undulyprejudiced".8 The section continues:(3) Without limiting subsection (2), the Environment Court shall not grant anapplication under this section to waive a requirement as to the time withinwhich anything shall be lodged with the court (to which subsection(1)(a)(ii) applies) unless it is satisfied that—(a) the appellant or applicant and the respondent consent to that waiver;or(b) any of those parties who have not so consented will not be undulyprejudiced.5 Deemed by virtue of the Heritage New Zealand Pouhere Taonga Act 2014, s 6 definition of"working day" to have been lodged on 11 January 2021.6 It is common ground the Judge miscalculated the former periods as 138 and 38 days respectively:Ngāi Tamahaua Hapū Committee v Heritage New Zealand Pouhere Taonga, above n 1, at [6]–[7].Counsel also may have miscalculated the first and last periods. In reliance on s 35(2) of theInterpretation Act 1999 to count working days as excluding the day of the decision being appealedagainst, my clerk concurs the wastewater works archaeological authority appeal was lodged 23working days late. But, using the same methodology, he concludes the appeal period for an appealagainst the enabling works archaeological authority expired on 19 June 2020, meaning the appealwas lodged 129 working days late (noting s 6 of the 2014 Act defines "working day" as excludingall days between 20 December and 10 January, and allowing for the Queen's Birthday publicholiday on 1 June). Similarly, then, the harbour works archaeological authority appeal was lodgedthree working days late. But there can be no dispute all three appeals were lodged late.7 Heritage New Zealand Pouhere Taonga Act, s 58(4).8 The section's "sometimes asymmetrical language" in its distinct reference to "parties" at subs (2)but "appellant or applicant and the respondent" at subs (3) is noted: Mullen v Parkbrook HoldingsLtd [1999] 2 NZLR 312 (CA) at 326.(4) Without limiting subsections (2) and (3), the Environment Court maywaive a requirement as to time under this section whether or not anapplication is made under this section before the requirement has beenbreached.Thus the Environment Court's decision if to waive such a requirement is discretionary.Decision under appeal[7] Chief Judge Kirkpatrick refused the Committee's applications for waiver ofeach of the appeal lodging times. The Judge considered the Committee's delay inrespect of the enabling works' authority was:9 so long that the works have been done and so the appeal would be mootbecause no real relief could be granted that would affect the exercise of theauthority.While the delay in respect of the wastewater works' authority was less, it was stillsubstantial and inadequately explained. Given the public health and environmentalissues, prejudice to the Council would be undue, and "there is no evidence before thecourt to indicate that protection beyond the conditions of the authority are required".And, although the delay in respect of the harbour works' authority was "quite short",the upset to contractual arrangements in awaiting determination of any appealaffecting third parties "elevates the prejudice to the Council to the level of beingundue".10[8] The Committee's chair, Tim Herewini, is critical of the Judge's failure toacknowledge the Hapū's long-standing opposition to the Ōpōtiki Harbourdevelopment. He says the Judge's reliance on the 1991 Act's "generalities" errs inavoiding application of the 2014 Act's principles and purposes, and omits reference toMarine and Coastal Area (Takutai Moana) Act 2011 determinations in theWaitangi Tribunal at Whakatane and this Court at Rotorua. He disputes the Judge'sfindings as to prejudice — as not of the Council directly, but of third-party contractingparties — when it is the Hapū that has been prejudiced by the authorities' timings. Thebulk of Mr Herewini's submission outlines the Hapū's position on the substantiveappeals, including the superiority of Te Tiriti o Waitangi ki Opotiki and international9 Ngāi Tamahaua Hapū Committee v Heritage New Zealand Pouhere Taonga, above n 1, at [33].10 At [34]–[36].law; the Hapū as appropriate land owners for the purpose of consenting to theauthorities' application to customary Maori land; and the desirability of a broaderassessment of the authorities on such appeals. Mr Herewini acknowledges analternative may be judicial review of HNZPT's decisions.Approach to appeal[9] Appeals to this Court against a decision of the Environment Court only areavailable "on a question of law".11 The scope of an appealable question of law iswell-understood: it is the decision be "clearly insupportable" as a proper applicationof the law, whether by mistaking the applicable law, disregarding relevant matters,considering irrelevancies, or otherwise being "clearly untenable".12 When a decisionin the exercise of the Judge's discretion, I only may interfere with it if the appellantestablishes the Judge erred in law or principle, did not address relevant matters or tookinto account irrelevant matters, or was "plainly wrong".13Discussion[10] The issue here is if the Judge erred in law in refusing to waive the 2014 Act'stime for lodging an appeal to the Environment Court. Despite Mr Herewini's claim toapplication of higher principle, the Judge's powers closely are circumscribed by the2014 Act's reliance on the 1991 Act's provisions.[11] Under the 1991 Act, the Judge could not waive time unless satisfied none ofthe parties to the prospective appeal(s) would be unduly prejudiced. The Judgeexpressly was not so satisfied on the prospect of reopening the wastewater and harbourworks' authorities to appellate consideration. He explained why that was the case: thepublic health, environmental and contractual issues ultimately affecting the Council.Even if another view was available, the Judge's lack of satisfaction as to the absenceof undue prejudice cannot be said clearly untenable. The Judge's view was availableto him, and is not to be gainsaid on appeal on a question of law.11 Resource Management Act 1991, s 299(1).12 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[28].13 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] citing May v May (1982) 1 NZFLR165 (CA) at 170; and Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8].[12] The Judge did not express himself in terms of his satisfaction as to a lack of'undue prejudice' by reopening the enabling works' authority. If there was no undueprejudice, the Judge's decision on that waiver fell to his discretion. In exercising itagainst granting the waiver, the Judge took the view, because the enabling works were"substantially complete", "no real relief could be granted that would affect the exerciseof the authority".14[13] In other words, the Judge meant whatever archaeological site modification ordestruction was authorised now had occurred, subject to the authority's conditions.Although Mr Herewini takes a wider view such modification or destruction has"ongoing" resonance, the Judge's point remains: the exercise of the authority is spent.While there is no conclusive evidence on-site archaeological work is complete, suchas might be proffered by the five working day advice or the subsequent reports, neitheris there any evidence archaeological sites may further be modified or destroyed by theenabling works. The Judge's conclusion is not "plainly wrong" on any measure.[14] Thus, in refusing to waive time for lodging the Committee's appeals againstthe archaeological authorities, the Judge has not erred in any way susceptible to anappeal on a question of law.Result[15] The appeal is dismissed.Costs[16] In my preliminary view, as the unsuccessful party, the Committee should pay2B costs to each the Council and HNZPT, as the parties agreed the proceeding shouldbe categorised for costs purposes. If my view is not accepted by the parties, or theycannot otherwise agree, I reserve costs for determination on short memoranda of nomore than five pages — annexing a single-page table setting out any contendedallowable steps, time allocation, and daily recovery rate — to be filed and served by14 Ngāi Tamahaua Hapū Committee v Heritage New Zealand Pouhere Taonga, above n 1, at [4(a)]and [33].any claiming party within ten working days of the date of this judgment, with anyresponse or reply to be filed within five working day intervals after service.—Jagose J