NGĀTI MARU TRUST v NGĀTI WHĀTUA ŌRĀKEI WHAIA MAIA LIMITED [2020] NZHC 2768 [21 October 2020]

NGĀTI MARU TRUST v NGĀTI WHĀTUA ŌRĀKEI WHAIA MAIA LIMITED [2020] NZHC 2768[21 October 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2672[2020] NZHC 2768UNDER Resource Management Act 1991.IN THE MATTER of an appeal under section 299 of theResource Management Act 1991 against adecision of the Environment Court.BETWEEN NGĀTI MARU TRUSTAppellantAND NGĀTI WHĀTUA ŌRĀKEI WHAIAMAIA LIMITEDRespondent(Continued next page)Hearing: 18 June 2020Auckland Council submissions received 26 June 2020Respondent submissions received 1 July 2020Appellants' submissions received 26 June and 6 July 2020Counsel: A Warren and K Ketu for AppellantsL Fraser and N M de Wit for RespondentR S Abraham for Panuku Development AucklandS F Quinn for Auckland CouncilJudgment: 21 October 2020JUDGMENT OF WHATA JThis judgment was delivered by me on 21 October 2020 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: McCaw Lewis, HamiltonSimpson Grierson, AucklandDLA Piper, AucklandChapman Tripp, AucklandCIV-2019-404-2673BETWEEN TE ĀKITA O WAIOHUA WAKATAUA INCORPORATED SOCIETYAppellantAND NGĀTI WHĀTUA NGĀTI WHĀTUAŌRĀKEI WHAIA MAIA LIMITEDRespondentCIV-2019-404-2676BETWEEN TE PATUKIRIKIRI TRUSTAppellantAND NGĀTI WHĀTUA NGĀTI WHĀTUAŌRĀKEI WHAIA MAIA LIMITEDRespondent[1] The Environment Court was asked to answer the following question (theAgreed Question):Does the Environment Court have jurisdiction to determine whether any tribeholds primary mana whenua over an area the subject of a resource consentapplication:(a) generally; or(b) where relevant to claimed cultural effects of the application and thewording of resource consent conditions.[2] The Court answered "no" to part (a) of the Agreed Question. The Courtdeclined to answer part (b) of the Agreed Question, and instead "reframed" thequestion (the Reframed Question), namely:When addressing the s6(e) RMA [Resource Management Act 1991]requirement to recognise and provide for the relationship of Māori and theirculture and traditions with their ancestral lands, water, sites, waahi tapu andother taonga, does a consent authority including the Environment Court havejurisdiction to determine the relative strengths of the hapū/iwi relationships inan area affected by a proposal, where relevant to claimed cultural effects ofthe application and wording of the resource consent conditions.[3] The Court answered this Reframed Question in the affirmative.[4] The appellants contend:(a) the Environment Court reframed the question unlawfully and unfairly;(b) the Environment Court should have answered both parts of the AgreedQuestion "no"; and(c) the Environment Court was wrong, in any event, to find jurisdiction toassess relative strengths of relationship insofar as that involvedidentifying an iwi pecking order.[5] Following argument, it was agreed I should resolve:(a) whether the Environment Court erred in law and/or procedurally; and(b) if so, address part (b) of the Agreed Question; and/or(c) answer the Reframed Question.Part 1 – Background[6] The appellants represent tribes with customary interests across TāmakiMakaurau.[7] Panuku Development Auckland (Panuku) sought and obtained consent to:(a) extend the north-western breakwater and causeway (via landreclamation) at Westhaven Marina (the Westhaven proposal); and(b) construct two ship mooring dolphins and associated wharf accessstructures from the end of Queens Wharf in the coastal marine area andto undertake alterations to the existing Queens Wharf structure (theQueens Wharf proposal).(Panuku Consents).[8] Ngāti Whātua Ōrākei Waia Limited represents Ngāti Whātua Ōrākei, whoclaim to hold, what they call, "primary mana whenua" over the land which is subjectto the Panuku consents. I describe what they mean by the phrase "primary manawhenua" below.[9] Ngāti Whātua Ōrākei did not challenge the grants of the Panuku consents, buthas filed appeals challenging the conditions dealing with mana whenua engagement,including the placement of 19 pou whenua as part of each proposal, as proposed byPanuku, to recognise the 19 iwi authorities in Tāmaki Makaurau (the Ngāti WhātuaŌrākei Appeal). The consent conditions require Panuku to invite all 19 iwi authoritiesto establish a Forum and prepare a Kaitiaki Engagement Plan with the assistance ofthe Forum to "assist Mana Whenua to express tikanga, fulfil their role as kaitiaki, andestablish the engagement process before, during, and after the completion ofconstruction activities".Grounds of appeal[10] The reasons for appeal specified by Ngāti Whātua Ōrākei set the frame for theAgreed Question. Ngāti Whātua Ōrākei contend the hearing panel erred in its findingsat [166], [168] and [169] that:• "[166]..the AUP-OP while recognising the Mana Whenua ofthese groups does not offer any guidance as to which group,if any, has primacy over any area within the AucklandRegion."• "[166]..there is nothing in the RMA, or in the AUP-OP,requiring that a particular group be afforded prioritystatus...neither the RMA nor the AUP-OP requires a consentauthority to determine whether a particular group has priorityor primacy over another.. this determination is best made byiwi themselves.."• "[168]..the two resource consent options offered by.. NgātiWhātua Ōrākei..go too far given the neutral status adopted bythe Council in the AUP-OP and its recognition of multiple,overlapping and interrelated Mana Whenua groups withregard establishing [sic] primary Mana Whenua status."• "[169]..all iwi groups represented at the hearing have ManaWhenua status and their views are all valid and must beconsidered when considering cultural effects...anydetermination regarding whether any one Mana Whenuagroup has primacy to be best determined by the Mana Whenuagroups themselves and as such we have amended thePMRKEP condition (Condition 12) to add this as a matter tobe considered by that forum.."[11] Ngāti Whātua Ōrākei also contends (among other things) that there is a duty toconsider priority status when it is a material issue triggered by competing evidence ofiwi and hapū authority submitters, under ss 6(e), 6(g) and 8 of the ResourceManagement Act 1991 (RMA) (or the related planning and policy framework).Alternatively, they contend, "assessment of the layers of interest asserted by each iwisubmitter was a discretionary issue to be assessed by the decision-maker on its merits".Therefore, they say:It was error of law to say that the decision-maker has no jurisdictionto decide competing claims to recognition of relationships under s6(e)and s8 RMA. If all claims are equally valid, none are special. Thedecision claims not to "pick sides" but rejected the tikanga andevidence of Ngāti Whātua Ōrākei (primacy, based on its detailedevidence), and gave preference and priority to the tikanga of opposingiwi (putative equality of treatment).Process followed[12] As there were no challenges to the grants of consent for the Westhavenproposal, the parties consented to an application to the Court on 19 March 2019seeking a determination of early commencement, which was subsequently granted bythe Court. Directions were also made consolidating the two appeals and inviting theparties to consider how to proceed, either by way of preliminary question of law or bydeclaratory proceedings. Ngāti Whātua Ōrākei then applied for declarations that theEnvironment Court has jurisdiction to determine which iwi holds primary manawhenua (customary authority) where relevant to the wording of the resource consentconditions and that "mana whenua" in the Auckland Unitary Plan (the AUP) is neutraland non-determinative as to the issues of primacy of customary authority.[13] However, on 18 July 2019, the then-Principal Environment Court Judge:directed that the appeals be consolidated, adjourned the application for declarationsmade by the Ngāti Whātua Ōrākei and directed that a preliminary question proceed tohearing.Agreed Question Factual Matrix[14] The parties then tabled the Agreed Question for adjudication as well as anagreed factual matrix. That factual matrix records the following:Contested mana whenua9. There is a dispute between the parties in relation to proposed consentconditions relating to mana whenua engagement, and the extent towhich (if at all) these can accord primacy to Ngāti Whātua Ōrākei.The issue is not limited to the Westhaven and Queens Wharfproposals, and includes other public projects in the Auckland CBDand waterfront.10. Ngāti Whātua Ōrākei says that it has primary mana whenua in relationto the rohe or area that includes the subject proposals. This assertionof primary mana whenua is contested and opposed by the iwi at [4]above (other than Ngāi Tai ki Tāmaki which has adopted a neutralposition). All of the above Mana Whenua tribes claim customaryinterests in the Waitematā including the project areas.11. If the Court accepts jurisdiction, then the relevant iwi authorities willfile evidence supporting or opposing the issue of primacy.Claimed cultural effects12. Ngāti Whātua Ōrākei says that the disputed mana whenua engagementconditions, including provision for pou whenua, breach Ngāti WhātuaŌrākei tikanga, and cause significant adverse cultural effects. Thisassertion is contested and opposed by the iwi at [4] above (other thanNgāi Tai ki Tāmaki which has adopted a neutral position). Bothpositions will be the subject of evidence (if jurisdiction exists).Other relevant mattersLocation and Significance13. The location of the projects subject of these appeals are:(a) Pile Mooring – 31 Westhaven Marina Drive, AucklandCentral; and(b) Queens Wharf Dolphin Mooring – Queens Wharf and waterspace of the Waitematā Harbour north of Queens Wharf,Auckland Central.14. Both projects are located within the Waitematā/coastal marine area.15. All Mana Whenua tribes participating in these appeals:(a) Are parties to the Tāmaki Makaurau Collective Deed ofSettlement between the Crown and Ngā Mana Whenua oTāmaki Makaurau dated 5 December 2012 ("Deed"), thatstates at Part 10:10.1 Nga Mana Whenua o Tamaki Makaurau and theCrown acknowledge and agree that -10.1.1 the Waitemata and Manukau harbours are ofextremely high spiritual, ancestral, cultural,customary and historical importance to Nga ManaWhenua o Tamaki Makaurau; and10.1.2 this deed does not -(a) provide for cultural redress in relation tothose harbours, as that is to be developed inseparate negotiations between the Crown andNga Mana Whenua o Tāmaki Makaurau; nor(b) prevent the development of cultural redress inrelation to these harbours in thosenegotiations.16. Section 3 of the Ngā Mana Whenua o Tāmaki Makaurau CollectiveRedress Act 2014 states the purpose of the Act:The purpose of this Act is to give effect to certain provisions of thecollective deed, which provides shared redress to the iwi and hapūconstituting Ngā Mana Whenua o Tamaki Makaurau, including by –(a) restoring ownership of certain maunga and motu of TāmakiMakaurau to the iwi and hapū, the maunga and motu beingtreasured sources of mana to the iwi and hapū; and(b) providing mechanisms by which the iwi and hapū mayexercise mana whenua and kaitiakitanga over the maungaand motu; and(c) providing a right of first refusal regime in respect of certainland of Tāmaki Makaurau to enable those iwi and hapū tobuild an economic base for their members.17. There are a number of outstanding Marine and Coastal Area (TakutaiMoana) Act 2011 applications for that part of the Waitematā, subjectto these appeals.18. All Mana Whenua parties are members of and have the ability toparticipate in, the Panuku Mana Whenua Governance Forum; equally,all Mana Whenua parties have the option of engagement with Panukudirect, and not through the Forum. The two proposals subject toappeal include consent-specific mana whenua engagement forumsimposed by consent conditions.Ngāti Whātua Ōrākei view explained[15] In light of the agreed factual matrix, the parties did not consider it wasnecessary to provide evidence about other things, such as the tikanga-based meaningof mana whenua. But affidavits (included in the common bundle) were filed in respectof the application for declaration by Professor Emeritus David Vernon Williams andDeputy Chair of the Ngāti Whātua Ōrākei Trust, Ngarimu Alan Huiroa Blair.Professor Williams provides evidence of principles of tikanga Māori relied upon byNgāti Whātua Ōrākei. The meanings of "mana whenua," "ahi kā" and "ahi kā roa,"as described by Professor Williams, are applied where relevant by Mr Blair in hisaffidavit. While I make no findings about the claims made in this evidence, it helpfullyprovides context and definition to the assertion by Ngāti Whātua Ōrākei of "primarymana whenua".[16] Professor Williams describes the concepts of "ahi kā or ahi kā roa," "manawhenua" and "take tuku, tuku whenua" as follows:Ahi kā or ahi kā roaAhi kā or ahi kā roa means the long burning fires of occupation. Thisconcept relates to the notion of title to land through occupation over asignificant period of time and, importantly, through whakapapa. Ahikā presupposes continuous occupation and use of the land by thosegroups who could whakapapa to it..Mana whenuaMana whenua is the notion of territorial rights or authority over land.The concept can loosely be equated with the Pākehā idea ofjurisdiction.Mana whenua and ahi kā are closely related. A group cannot havemana whenua without ahi kā, and losing ahi kā (through raupatu, forexample) or failure to maintain it would erode a group's manawhenua.Mana whenua through ahi kā gives "better" or "stronger" rights toland than, for example, rights acquired through raupatu..Take tuku, tuku whenuaTake tuku is a root of title to land akin to a gift. Unlike the Pākehāconcept of a gift, for Māori the rights of the party transferring the landdo not extinguish or cede to the other party receiving the land. On thecontrary, there is a continuing relationship between the donor anddonee. .For Ngāti Whātua Ōrākei, the Crown acquired take tuku rights in the1840 Transfer Land. This is reflected in the Agreed Historical Accountin the 2011 Deed of Settlement at clause 2.23, which says of thetransfer:This transaction enabled the establishment of the town ofAuckland, which soon became the main European settlement,the leading commercial port and the seat of government in thecolony. Ngāti Whātua and the Crown entered thetransaction with a view to a mutually beneficial andenduring relationship. [emphasis added]Tuku whenua is the act of transferring land, in accordance with theprinciples of take tuku. A mutual and ongoing relationship betweenthe donor and donee of land is central to tuku whenua as it is totake·tuku.[17] Professor Williams also addresses the concepts of "primacy" and "primary' inhis evidence:When the Ngāti Whātua Ōrākei chiefs Apihai Te Kawau, Te Rewetiand Te Tinana marked the Treaty of Waitangi on 20 March 1840,Ngāti Whātua Ōrākei had mana whenua through ahi kā in TāmakiMakarau. In my view, it is important to note that while there may beoverlapping claims from other iwi to mana whenua in some parts ofTāmaki Makaurau, there is also a core area of Tāmaki Makaurau overwhich Ngāti Whātua Ōrākei have, since the Treaty of Waitangi wassigned, consistently had their mana, their customary rights gainedthrough ahi kā in Tāmaki, and their role as mana whenua in Tāmaki,afforded. This core area is, to adopt Pākehā terminology, an area ofprimacy for Ngāti Whātua Ōrākei.[18] Mr Blair refers to "primary mana whenua" in this way:The meanings of mana whenua, ahi kā and ahi kā roa, as described byProfessor Williams, apply where relevant in my affidavit. I note thatthe RMA definition of "mana whenua" includes "customaryauthority": my references to primacy of "mana whenua" shouldtherefore be read as including the primacy of our "customaryauthority" and rangatiratanga.[19] He also says:Ngāti Whātua Ōrākei have maintained ahi kā, their 'fires ofoccupation', over the CBD waterfront from 1740 to this day. TheCBD waterfront is bookended by two headland Pa sites being Te To(Beaumont Street in the west) and Taurarua (Judges Bay in the east).Ngāti Whātua Ōrākei continues to own approximately 20 hectares ofCBD land, being the former Railways site at what is traditionallyknown as Te Toangaroa (the long dragging of waka) between Quay StEast and Beach Road. This site was 're-acquired' from the Crown in1996 through a commercial purchase following Ngāti WhātuaŌrākei's assertion of customary ownership to the reclaimed sea-bed.[20] And further:Ngāti Whātua Ōrākei, as the iwi holding primary mana whenuainterests in central Tāmaki Makaurau, agreed to join and participatein the Collective Arrangements as an exercise of its mana, but only tothe extent of the express terms of the Collective Arrangements (andthe other lawful rights of Ngāti Whātua Ōrākei).It was a pragmatic compromise made by Ngāti Whātua Ōrākei in thecontext of a halt in Treaty settlement negotiations in TāmakiMakaurau that had been in place since around 2007.There was no suggestion or intention that, by joining the TāmakiCollective, Ngāti Whātua Ōrākei or any other iwi, would abandon itsmana whenua that it had established and maintained over the courseof at least 250 years.[21] Mr Blair also provides evidence about the concerns of Ngāti Whātua Ōrākei inrelation to the consent conditions:Pou Whenua, or carved posts in their purist form, are statements ofmana and authority akin to flag posts being stood and being flown incolonial history to claim rights to land. Pou Whenua can also be usedto define tribal boundaries and to mark places of cultural significance.Placing Pou Whenua in this context would in cultural terms assigntribal mana and authority and be a signal of legitimate rights of an iwito that particular place.Given the proposal was for 19 Pou Whenua, which reflects the WiderIwi, Ngāti Whātua Ōrākei took this as another example of the erosionof our customary rights and the elevation of status of many other iwiwho cannot claim any customary rights to the land in the AucklandCBD to the same extent as Ngāti Whātua Ōrākei. We had no choicebut to object to the proposals in the strongest possible terms.In Māori terms a turangawaewae or 'place to stand', is a place that isindisputably your land and water and a place where your tikanga orworld view prevailing is fundamental. If Ngāti Whātua Ōrākei has noturangawaewae or any place where its views matter the most (andmore than any others at all), then it essentially is no longer Māori andit certainly is no longer Ngāti Whātua Ōrākei. If even in our veryheartland, the central Auckland Isthmus and the CBD, we are simplyaccorded the same status as the Wider Iwi, then our very being asMāori and as Ngāti Whātua Ōrākei is undermined.If the Auckland Council as our Treaty Partner, whose Town Hall andhead office sits on the very land we gave to the Crown in 1840, simplyenables 18 iwi the opportunity to erect a 'Pou Whenua' and astatement of their mana then we had no option but to object. Further,given the continual treatment of Ngāti Whātua Ōrākei on ourtraditional lands as simply being one of many, we have determined toseek a declaration from this Court so that claimed interests can beweighed and so the Court can provide clarity and direction to thoseoperating at local government level as to who they should be engagingwith.[22] According to Mr Blair, the claim by Ngāti Whātua Ōrākei to primacy is not beequated with claim of exclusivity. He says:The rights that go with being the ahi kā iwi also comes withobligations to manaaki our visitors and to also recognise those withlegitimate customary interests...Ngāti Whātua Ōrākei also recognises a number of the Wider Iwi havelegitimate customary relationships with the Westhaven area. Theseinclude Ngāti Paoa and Te Waiohua (Akitai, Ngai Tai ki Tāmaki, NgātiTe Ata and Kawerau a Maki). We have previously proposed that NgātiWhātua Ōrākei would lead an arts project at the proposed marina andinvite all iwi who claim a customary relationship into the korero tofirstly demonstrate and have tested their claims to the area inaccordance with our tikanga. To then collaborate and agree anappropriate artistic representation of the various iwi that reflects thevarying levels of relationships to the site. That Ngāti Whātua Ōrākeiwould lead the project was a sufficient recognition of the customary,treaty and legal rights we firmly believe we have.[23] Mr Blair concludes:In my opinion, Ngāti Whātua Ōrākei is the iwi with primary manawhenua status for the Auckland CBD Waterfront area and has long-standing ancestral and contemporary relationships with the CBD,Viaduct Harbour, and Waitematā. We recognise the legitimaterelationships to our primary mana whenua interest area of other iwiparticularly those of Te Waiohua and Ngāti Paoa. We reject howeverthat all Tāmaki Collective and Wider Iwi have the same level ofinterest as Ngāti Whātua Ōrākei and that they be accorded the samestatus as ourselves for resource consent conditions relating to manawhenua engagement and related matters (such as pou whenua).The Environment Court decision[24] The Environment Court found that the RMA does not invite decision-makersto identify "primacy" of mana whenua.1 The Court also found the Agreed Questionwas misdirected, and that the Court's inquiry should not be into primacy of manawhenua because it does not reflect the potential for there to be many layers of differinginterests among many parties (as is the case here). The Court thus resolved that part(a) of the Agreed Question was too broad and was not strongly argued for NgātiWhātua Ōrākei. Jurisdiction was therefore declined concerning part (a).[25] As noted in the introduction,2 the Court considered that part (b) of the AgreedQuestion needed to be reframed. The Environment Court then answered the ReframedQuestion in the affirmative. It said:[82] Our finding in this instance is that the AUP is relatively silent on themana whenua and related cultural matters referred by the appellant, in thesense as just held that they are non-determinative about overlapping orcompeting interests. We hold therefore that it is appropriate, indeed necessary,to resort to the provisions of Part 2 that we have listed in this decision. Thatsaid, we reiterate that while it is possible to conclude that a decision-makermight be required to consider evidence about multiple interests of multipleparties in any given place, we do not see any clear directive or encouragementin the Act to identify "primacy" in the sense of a general pre-eminence ordominance as argued on behalf of Ngāti Whātua. The conclusion we draw is1 Ngāti Whātua Ōrākei Whai Maia Ltd v Auckland Council [2019] NZEnvC 184, (2019) 21 ELRNZ447 at [82].2 Ngāti Whātua Ōrākei Whai Maia Ltd v Auckland Council, above n 1, at [84]-[89].that there is clearly jurisdiction to hear and determine competing claims as torelative status between Māori groups. We do not accept however that it wouldnecessarily be correct to describe that jurisdiction as a power to determine thata particular tribe holds primary mana whenua over an area. These concernshighlight the problems arising in an attempt to answer such a broad questionin the abstract.[26] The Court also responded to the Council's submission that councils or theirhearing commissioners were not equipped to make such inquiries. In doing so, theCourt observed that consent authorities must face up to the complexity of issues in allfacets of resource consenting, whether of a Māori cultural-nature or otherwise. TheCourt further observed that it was likely there would be few situations faced by consentauthorities as complex as the present, in terms of the numbers of parties claiming tobe affected, or the ways in which effects might be manifested. However, thesecomplexities afforded no reason for not facing up to the task.3[27] The Council, Te Ākitai o Waiohua, Te Patukirikiri, and Ngāti Maru allpresently appeal the findings of the Environment Court on that preliminary questionof law.Part 2 - Legislative and Planning Scheme[28] The present appeal requires the interpretation of provisions of the RMA as theyrelate to the power to grant resource consents and to impose conditions of consent andas they relate to Māori, iwi and hapū. As with all interpretation, those provisions mustbe interpreted having regard to the text in light of purpose and context.4[29] In this regard, there is comprehensive provision within the RMA for Māori andiwi interests, both procedurally and substantively. It is not possible to address all ofthose provisions in any depth. I have focused only on those provisions I consider aremost relevant to resolving the central issues on appeal. I provide an overview of theirsignificance below.3 At [90].4 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR767 at [24]; McQuire v Hastings District Council [2002] 2 NZLR 577 (PC); and InterpretationAct 1999, s 5.Power to grant resource consents and impose conditions[30] The power to grant resource consents is conferred by s 104 of the RMA. Thepower to grant consent is expressly subject to Part 2. Section 104 also outlinesnumerous mandatory considerations concerning a wide range of matters, includingadverse and positive effects of the proposed activities, environmental standards, theprovisions of relevant policy or planning documents including those produced underthe Marine and Coastal Area (Takutai Moana) Act 2011 and wāhi tapu conditionsincluded in a customary marine title order. Part 2 and each mandatory considerationunder s 104 provide scope for consideration of mana whenua.[31] The power to impose conditions can be found at ss 108 and 108AA of theRMA. Section 108 provides:108 Conditions of resource consents(1) Except as expressly provided in this section and subject to section108AA and any regulations, a resource consent may be granted on anycondition that the consent authority considers appropriate, includingany condition of a kind referred to in subsection (2).[32] Subsection (2) identifies a range of matters for which conditions may beimposed, including financial contributions, bonds, requiring specific works and bestpracticable options in respect of discharges, provision for esplanade reserves and formonitoring or to meet the requirements of planning instruments.[33] Section 108AA also states:108AA Requirements for conditions of resource consents(1) A consent authority must not include a condition in a resource consentfor an activity unless—(a) the applicant for the resource consent agrees to the condition;or(b) the condition is directly connected to 1 or both of thefollowing:(i) an adverse effect of the activity on the environment:(ii) an applicable district or regional rule, or a nationalenvironmental standard; or(c) the condition relates to administrative matters that areessential for the efficient implementation of the relevantresource consent.(4) For the purpose of this section, a district or regional rule or a nationalenvironmental standard is applicable if the application of that rule orstandard to the activity is the reason, or one of the reasons, that aresource consent is required for the activity.[34] The power to impose conditions is thus also widely framed. As with the powerto grant consent, the power to impose conditions has broad scope for consideration ofmana whenua where consented to by the applicant or where relevant to themanagement of adverse effects and/or the implementation of applicable planning rulesand/or administrative matters.Part 2[35] The reference to Part 2 at s 104 brings ss 5, 6, 7 and 8 of the RMA into theresource consenting process.5 Section 5 states the sustainable management purposeof the RMA, namely:5 Purpose(1) The purpose of this Act is to promote the sustainable management ofnatural and physical resources.(2) In this Act, sustainable management means managing the use,development, and protection of natural and physical resources in away, or at a rate, which enables people and communities to providefor their social, economic, and cultural well-being and for their healthand safety while—(a) sustaining the potential of natural and physical resources(excluding minerals) to meet the reasonably foreseeable needsof future generations; and(b) safeguarding the life-supporting capacity of air, water, soil,and ecosystems; and(c) avoiding, remedying, or mitigating any adverse effects ofactivities on the environment.5 R J Davidson Family Trust v Marlborough District Council [2018] NZCA 316, [2018] 3 NZLR283 at [52].[36] "Environment" is defined as:(a) ecosystems and their constituent parts, including people andcommunities; and(b) all natural and physical resources; and(c) amenity values; and(d) the social, economic, aesthetic, and cultural conditions which affectthe matters stated in paragraphs (a) to (c) or which are affected bythose matters[37] Section 6 specifies "matters of national importance." It includes expressreference to matters of national importance to Māori:6 Matters of national importanceIn achieving the purpose of this Act, all persons exercising functions andpowers under it, in relation to managing the use, development, and protectionof natural and physical resources, shall recognise and provide for thefollowing matters of national importance:(e) the relationship of Maori and their culture and traditions with theirancestral lands, water, sites, waahi tapu, and other taonga:(g) the protection of protected customary rights:[38] I return to the significance of s 6(e) below. A "protected customary right"means an activity, use or practice established by an applicant group in accordance withsubpart 2 Part 3 of the Marine and Coastal Area (Takutai Moana Act 2011) andrecognised by a customary marine title order of the High Court or an agreement.[39] Section 7 of the RMA then deals with matters to which "particular regard"must be had. Most relevantly, it states:7 Other mattersIn achieving the purpose of this Act, all persons exercising functions andpowers under it, in relation to managing the use, development, and protectionof natural and physical resources, shall have particular regard to—(a) kaitiakitanga:.[40] "Kaitiakitanga" is defined to mean "the exercise of guardianship by tangatawhenua of an area in accordance with tikanga Māori in relation to natural and physicalresources, and includes the ethic of stewardship". "Tangata whenua" means "the hapūor iwi that holds mana whenua over a particular area". "Mana whenua" means"customary authority exercised by an iwi or hapū in an identified area". "TikangaMāori" means "Māori customary values and practices".[41] Section 8 of the RMA states:8 Treaty of WaitangiIn achieving the purpose of this Act, all persons exercising functions andpowers under it, in relation to managing the use, development, and protectionof natural and physical resources, shall take into account the principles of theTreaty of Waitangi (Te Tiriti o Waitangi).[42] Sections 6(e), 7 and 8 of the RMA are focal points for the present appeal. Theirspecial significance was affirmed by the Privy Council in McQuire v Hastings DistrictCouncil. As Lord Cooke said:6[21] Section 5(1) of the RMA declares that the purpose of the Act is topromote the sustainable management of natural and physical resources. Butthis does not mean that the Act is concerned only with economicconsiderations. Far from that, it contains many provisions about the protectionof the environment, social and cultural wellbeing, heritage sites, and similarmatters. The Act has a single broad purpose. Nonetheless, in achieving it, allthe authorities concerned are bound by certain requirements and these includeparticular sensitivity to Maori issues. By s 6, in achieving the purpose of theAct, all persons exercising functions and powers under it, in relation tomanaging the use, development, and protection of natural and physicalresources, shall recognise and provide for various matters of naturalimportance, including "(e) The relationship of Maori and their culture andtraditions with their ancestral lands, water, sites, waahi tapu [sacred places],and other taonga [treasures]". By s 7 particular regard is to be had to a list ofenvironmental factors, beginning with "(a) Kaitiakitanga [a defined termwhich may be summarised as guardianship of resources by Mari people of thearea]". By s 8 the principles of the Treaty of Waitangi are to be taken intoaccount. These are strong directions, to be borne in mind at every stage of theplanning process.[43] And further:6 McGuire v Hastings District Council, above n 4, at [21].[22] Hastings has in effect the dual role of requiring authority andterritorial authority, so in a sense it could be in the position of adjudicating onits own proposal; but, by s 6(e), which Their Lordships have mentioned earlier,it is under a general duty to recognise and provide for the relationship of Maoriwith their ancestral lands. So, too, Hastings must have particular regard tokaitiakitanga (s 7) and it must take into account the principles of the Treaty (s8). Note that s 171 is expressly made subject to Part II, which includes ss 6,7 and 8. This means that the directions in the latter sections have to beconsidered as well as those in s 171 and indeed override them in the event ofconflict.[44] The majority in Environmental Defence Society Inc v The New Zealand KingSalmon Co Ltd also described the interlocking nature of these directions in this way::7[26] Section 5 sets out the core purpose of the RMA — the promotion ofsustainable management of natural and physical resources. Sections6, 7 and 8 supplement that by stating the particular obligations ofthose administering the RMA in relation to the various mattersidentified. As between ss 6 and 7, the stronger direction is given by s6 — decision-makers "shall recognise and provide for" what aredescribed as "matters of national importance", whereas s 7 requiresdecision-makers to "have particular regard to" the specified matters.The matters set out in s 6 fall naturally within the concept ofsustainable management in a New Zealand context. The requirementto "recognise and provide for" the specified matters as "matters ofnational importance" identifies the nature of the obligation thatdecision-makers have in relation to those matters when implementingthe principle of sustainable management. The matters referred to in s7 tend to be more abstract and more evaluative than the matters setout in s 6. This may explain why the requirement in s 7 is to "haveparticular regard to" them (rather than being in similar terms to s 6).[27] Under s 8 decision-makers are required to "take into account" theprinciples of the Treaty of Waitangi. Section 8 is a different type ofprovision again, in the sense that the principles of the Treaty may havean additional relevance to decision-makers. For example, the Treatyprinciples may be relevant to matters of process, such as the nature ofconsultations that a local body must carry out when performing itsfunctions under the RMA. The wider scope of s 8 reflects the fact thatamong the matters of national importance identified in s 6 are "therelationship of Maori and their culture and traditions with theirancestral lands, water, sites, waahi tapu, and other taonga" andprotections for historic heritage and protected customary rights andthat s 7 addresses kaitiakitanga(footnotes omitted)7 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38,[2014] 1 NZLR 593 at [26] and [27].Standards, Policy statements and plans[45] Part 5 of the RMA deals with statutory planning instruments, including nationalstandards, national policy statements, regional policy statements and regional anddistrict plans. As stated by the Supreme Court in The New Zealand King Salmon CoLtd, planning instruments may set the frame for resource management decision-makers without further need to refer to Part 2.8[46] Except for national standards, involvement of "iwi authorities" in thepromulgation of these instruments is expressly envisaged by the RMA.9 There is alsoexpress provision for dealing with regulations relating to taiapure, mahinga mataitai,non-commercial fishing rights, as well as customary marine title.10[47] Subpart 2 of Part 5 of the RMA contains detailed provision for initiation ofMana Whakahono a Rohe or iwi participation agreements. The purpose of a ManaWhakahono a Rohe is:58M Purpose of Mana Whakahono a RoheThe purpose of a Mana Whakahono a Rohe is—(a) to provide a mechanism for iwi authorities and local authorities todiscuss, agree, and record ways in which tangata whenua may,through their iwi authorities, participate in resource management anddecision-making processes under this Act; and(b) to assist local authorities to comply with their statutory duties underthis Act, including through the implementation of sections 6(e), 7(a),and 8.[48] The guiding principles in developing a Mana Whakahono a Rohe are:58N Guiding principlesIn initiating, developing, and implementing a Mana Whakahono a Rohe, theparticipating authorities must use their best endeavours—(a) to achieve the purpose of the Mana Whakahono a Rohe in an enduringmanner:8 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, above n 7, at [85].See also R J Davidson Family Trust v Marlborough District Council, above n 5.9 Sections 58D, 58H, 61(2), (2A)(a) and (b), 62(1)(b); Schedule 1, 1A, 1B and 3B.10 Section 61(2)(iii) and 61(2A).(b) to enhance the opportunities for collaboration amongst theparticipating authorities, including by promoting—(i) the use of integrated processes:(ii) co-ordination of the resources required to undertake theobligations and responsibilities of the parties to the ManaWhakahono a Rohe:(c) in determining whether to proceed to negotiate a joint or multi-partyMana Whakahono a Rohe, to achieve the most effective and efficientmeans of meeting the statutory obligations of the participatingauthorities:(d) to work together in good faith and in a spirit of co-operation:(e) to communicate with each other in an open, transparent, and honestmanner:(f) to recognise and acknowledge the benefit of working together bysharing their respective vision and expertise:(g) to commit to meeting statutory time frames and minimise delays andcosts associated with the statutory processes:(h) to recognise that a Mana Whakahono a Rohe under this subpart doesnot limit the requirements of any relevant iwi participation legislationor the agreements associated with that legislation.[49] This subpart then provides a detailed framework for reaching agreementbetween one or more iwi authorities and one or more local authorities in respect of awide range of resource management matters, including (in summary):11(a) how an iwi authority may participate in plan promulgation processes;(b) how participating authorities will undertake consultation – participatingauthorities are iwi authorities and local authorities that are able to agreeat a hui of those authorities how they will develop a Mana Whakahonoa Rohe;(c) how participating authorities will work together to agree methods formonitoring;11 Section 58R.(d) how participating authorities will give effect to requirements of anyrelevant iwi participation legislation;(e) a process for identifying and managing conflicts of interest; and(f) a process for resolving disputes about the implementation of the ManaWhakahono a Rohe.[50] A Mana Whakahono a Rohe may also specify, among other things, how two ormore iwi authorities will work collectively together to participate with localauthorities. It also provides a definition of "area of interest", namely, the area that theiwi and hapū represented by an iwi authority identify as their traditional hapū.[51] The statutory process involves an invitation by one or more iwi authorities(initiating iwi) to relevant local authorities to enter into a Mana Whakahono a Rohewith one or more iwi authorities. After receiving the invitation, the local authoritiesmay advise relevant iwi authorities and relevant local authorities that an invitation hasbeen received and must convene a hui of the initiating iwi and any other relevant iwiauthorities and relevant local authorities. "Relevant iwi authority" means "an iwiauthority whose area of interest overlaps with, or is adjacent to, the area of interest ofan initiating iwi authority."12Resource management decision-making[52] The RMA also contains numerous provisions that seek to provide for Māori,iwi and hapū input into resource management decision-making, including:(a) Express provision for engagement with "iwi authorities" in the planpromulgation process (s32(4A), Schedule 1). "Iwi authority" means"the authority which represents an iwi and which is recognised by thatiwi as having authority to do so".1312 Resource Management Act 1991, s 58L.13 Resource Management Act 1991, s 2(1).(b) Transfer of functions, powers or duties of local authorities to an "iwiauthority" (section 33).(c) A duty to keep records about iwi and hapū, including about "iwiauthorities" and the areas over which one or more iwi or hapū exercisekaitiakitanga within a region or district (section 35A).(d) The power to make a joint management agreement and for that purpose,satisfying itself that each iwi authority and group that represents hapū,represents the relevant community of interest (section 36B).(e) Recognition of tikanga Māori where appropriate in hearing procedures(section 39).(f) Provision for iwi authorities to submit on draft national policystandards (section 58D).(g) The appointment of Environment Court Commissioners withknowledge and expertise in matters relating to the Treaty of Waitangiand kaupapa Māori as well as the appointment of alternate EnvironmentCourt judges in consultation with the Chief Māori Land Court Judge(ss 251-255).(h) An express direction that the Environment Court shall recognisetikanga where appropriate in terms of its powers.The AUP[53] The AUP contains express references to "Mana Whenua". It defines "ManaWhenua" as follows:Māori with ancestral rights to resources in Auckland and responsibilities askaitiaki over their tribal lands, waterways and other tāonga. Mana whenua arerepresented by iwi authorities.[54] Part B6 of the AUP addresses Mana Whenua. It commences with the followingwhakatauki:Ngā take matua a ngā ahikā-roa mai i tawhitiThe original inhabitants from afar[55] B6.1 states:Mana Whenua participation in resource management decision making andintegration of mātauranga Māori and tikanga into resource management are ofparamount importance to ensure a sustainable future for Mana Whenua andfor Auckland as a whole.[56] It also identifies the issues of significance to Māori and to iwi authorities in theregion include:(4) recognising the interests, values and customary rights of ManaWhenua in the sustainable management of natural and physicalresources, including integration of mātauranga and tikanga in resourcemanagement processes;[57] B6.2.1 specifies objectives relating to recognition of Treaty of Waitangi/TeTiriti o Waitangi partnerships and participation. Objectives in B6.2.1 include:(1) The principles of the Treaty of Waitangi/Te Tiriti o Waitangi arerecognised and provided for in the sustainable management of naturaland physical resources including ancestral lands, water, air, coastalsites, wāhi tapu and other taonga.(2) The principles of the Treaty of Waitangi/Te Tiriti o Waitangi arerecognised through Mana Whenua participation in resourcemanagement processes.[58] B6.2.2 specifies related polices, including:(1) Provide opportunities for Mana Whenua to actively participate in thesustainable management of natural and physical resources including ancestrallands, water, sites, wāhi tapu and other taonga in a way that does all of thefollowing:(a) recognises the role of Mana Whenua as kaitiaki and provides for thepractical expression of kaitiakitanga;(b) builds and maintains partnerships and relationships with iwiauthorities;(c) provides for timely, effective and meaningful engagement with ManaWhenua at appropriate stages in the resource management process,including development of resource management policies and plans;(d) recognises the role of kaumātua and pūkenga;(e) recognises Mana Whenua as specialists in the tikanga of their hapū oriwi and as being best placed to convey their relationship with theirancestral lands, water, sites, wāhi tapu and other taonga;(f) acknowledges historical circumstances and impacts on resourceneeds;(g) recognises and provides for mātauranga and tikanga; and(h) recognises the role and rights of whānau and hapū to speak and act onmatters that affect them.[59] B6.3.1 states objectives relating to recognising Mana Whenua values,including:B6.3.1. Objectives(1) Mana Whenua values, mātauranga and tikanga are properly reflectedand accorded sufficient weight in resource management decision-making.[60] Corresponding policies include:B6.3.2. Policies(1) Enable Mana Whenua to identify their values associated with all ofthe following:(a) ancestral lands, water, air, sites, wāhi tapu, and other taonga;.(2) Integrate Mana Whenua values, mātauranga and tikanga:(a) in the management of natural and physical resources withinthe ancestral rohe of Mana Whenua, including:(i) ancestral lands, water, sites, wāhi tapu and othertaonga;.(4) Provide opportunities for Mana Whenua to be involved in theintegrated management of natural and physical resources in ways thatdo all of the following:(a) recognise the holistic nature of the Mana Whenua world view;(b) recognise any protected customary right in accordance withthe Marine and Coastal Area (Takutai Moana) Act 2011; and(6) Require resource management decisions to have particular regard topotential impacts on all of the following:(a) the holistic nature of the Mana Whenua world view;(b) the exercise of kaitiakitanga;[61] The AUP also includes objectives and policies relating to Mana Whenuacultural heritage at B6.5.1 and 6.5.2. This includes an objective that the association ofMana Whenua values with local history and whakapapa is recognised, protected andenhanced. It also includes a policy requiring decision-makers to identify and evaluatemana whenua cultural and historic heritage sites, places and areas considering Mauri,Wāhi tapu, Kōrero Tūturu, Rawa Tūturu, Hiahiatanga Tūturu and Whakaaronui o teWā.[62] The AUP outlines, in detail, the reasons for the adoption of the abovementionedobjectives and policies, including the Council's ss 6(e), 7(a) and 8 obligations and theobjective to recognise the relationship of Mana Whenua with the Hauraki Gulf. Thispart of the AUP also notes:In policies relating to Mana Whenua values, the Unitary Plan seeks to ensurethat resource management processes in Auckland are informed by ManaWhenua perspective, including their values, mātauranga and tikanga.[63] The AUP also identifies that a number of iwi and hapū in Auckland havedeveloped iwi planning documents which articulate their specific resourcemanagement issues, noting also that they are a valuable source of information forintegrating mātauranga and tikanga into resource management in Auckland. The AUPalso states that the policies seek to give certainty to, and enhance, the involvement ofMana Whenua in resource management processes.Overview of legislative and planning context[64] The RMA is replete with references to kupu Māori, including Māori, iwi, hapū,kaitiakitanga, tangata whenua, mana whenua, tāonga, taiapure, mahinga mataitai andtikanga Māori. Parliament plainly anticipated that resource management decision-makers will be able to grasp these concepts and where necessary, apply them inaccordance with tikanga Māori.14 In this regard, local authorities and the EnvironmentCourt regularly deal with these concepts and their application, and have done so fornearly 30 years. What can be seen from even a cursory review of that case law overthat time span is an evolving understanding and application of mātauranga Māori andtikanga Māori. While tikanga Māori is defined in the RMA as "customary values andpractices" it has come to be understood as a body of principles, values and law that iscognisable by the Courts.15[65] The AUP is an apt illustration of the stage reached in this evolution. It definesmana whenua by reference to their ancestral rights and kaitiaki responsibilities. Itexpressly identifies mana whenua participation in decision-making and integration ofmātauranga Māori and tikanga into resource management as of "paramountimportance" and seeks to ensure that resource management processes in Auckland areinformed by mana whenua perspective, including their values, mātauranga andtikanga. It expressly refers to "mauri", "wāhi tapu" and "kōrero tuturu".[66] The RMA also anticipates that iwi will be involved in policy and planpromulgation and may have delegated to them decision-making functions; that therewill be cases where different iwi or hapū may have overlapping areas of interest; andthat iwi and hapū with defined customary rights will be specifically provided for whererelevant. The Mana Whakahono a Rohe process also enables agreement to be reachedabout competing iwi claims in respect of overlapping areas of interest. The AUP also14 See discussion in McQuire v Hastings District Council, above n 4, from [26].15 See Christian Whata "'Mātauranga Māori' knowledge, comprehension and understanding:Reflection of lessons learnt and contemplation of the future" (2016) RM Theory & Practice 21and cases cited therein. Some judgments were arguably well ahead of their time – see NgātiHokopu Ki Hokowhitu v Whakatane District Council (2002) 9 ELRNZ 111 (EnvC). As to thecognisability of tikanga Māori as a body of principles, values and law see: Takamore v Clarke[2012] NZSC 116, [2013] 2 NZLR 733; Ngāi Tai Ki Tāmaki Tribal Trust v Minister ofConservation [2018] NZSC 122, [2019] 1 NZLR 368; Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116.recognises the existence of multiple iwi and iwi authorities in Auckland and theirrespective planning documents. All of this necessarily demands that resourcemanagement decision-makers are able to identify, involve and provide for iwi and theirmana whenua in accordance with mātauranga Māori and tikanga Māori.16[67] However, when making resource management decisions, local authorities andthe Environment Court are not engaged at Part 2 of the RMA in a process of conferring,declaring or affirming tikanga-based rights, powers or authority per se whether in Statelaw or tikanga Māori.17 Similarly, Part 2 does not expressly or by necessaryimplication empower resource management decision-makers to confer, declare oraffirm the jural status of iwi (relative or otherwise) and there is nothing in the RMA'spurpose or scheme which suggests that resource management decision-makers are tobe engaged in such decision-making. The jurisdiction to declare and affirm tikangabased rights in State law rests with the High Court and/or the Māori Land Court.[68] Nevertheless, the Environment Court is necessarily engaged in a process ofascertainment of tikanga Māori where necessary and relevant to the discharge ofexpress statutory duties.18 To elaborate, as the Privy Council asseverated in McQuire,ss 6(e), 7(a) and 8 contain strong directions that must be observed at every stage of theplanning process. Where iwi claim that a particular outcome is required to meet thosedirections in accordance with tikanga Māori, resource management decision-makersmust meaningfully respond to that claim. That duty to meaningfully respond mustapply when different iwi make divergent tikanga-based claims as to what is requiredto meet those obligations. This may involve evidential findings in respect of theapplicable tikanga and a choice as to which course of action best discharges thedecision-makers statutory duties. To hold otherwise would be to emasculate thosedirections of their literal and normative potency insofar as concerns iwi.[69] It is not possible to be definitive about the scope of the jurisdiction to respondto iwi tikanga-based claims, including claims based on asserted mana whenua, in the16 Derek Nolan (ed) Environmental and Resource Management Law (7th ed, LexisNexis, Wellington,2020) at [14.24].17 I use the term "State law" in reference to both the law of the State and common law.18 As to the relevance of tikanga Māori to the exercise of statutory powers see: Ngāi Tai Ki TāmakiTribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368.abstract. But the operation of s 7(a) dealing with kaitiakitanga is illustrative.Kaitiakitanga is exercised by the hapū or iwi that holds mana whenua over a particulararea. As the RMA anticipates, and as this case exemplifies, there will be occasionswhen there are overlapping iwi interests in the same whenua. Nevertheless, s 7(a)directs that regard must be had to their respective kaitiakitanga. Where the views ofthose iwi diverge as to the responsibilities of kaitiaki, a decision may need to be madeas to which of those views is to apply in the context of that particular application andthat may involve evidential findings as to what the iwi consider is required in tikangaMāori. Ngāi Te Hapū Inc v Bay of Plenty Regional Council19 provides a recentexample of this dynamic. The Court in that case said:[82] Under s 7 we must provide for kaitiakitanga and the ethic ofstewardship. "Kaitiakitanga" is defined in s 2 as the exercise of guardianshipby the tangata whenua of an area in accordance with tikanga Māori in relationto natural and physical resources, and includes the ethic of stewardship. Underthe same section, "tangata whenua" in relation to a particular area means theiwi, or hapū, that holds mana whenua over that area. "Mana whenua" meanscustomary authority exercised by an iwi or hapū in an identified area, and"tikanga Māori" means Māori customary values and practices. Sir WiraGardiner considered that we should identify who has mana whenua over theisland and the reef, and given s 2 of the RMA and the contestability betweenthe tribes on the mainland over the issue, we have no choice but to do so. Weshould stress that, normally, this Court is not required to undertake such ananalysis.[70] In that case, the Court had to determine whose claim to kaitiakitanga should berecognised, and whose rangatiratanga or customary authority and tikanga should beapplied in the context of the case before the Court. The Court resolved that Ngāi TeHapū – Te Patuwai and Te Whānau a Tauwhao are tangata whenua, and therefore, theyare the kaitiaki of Ōtāiti with mana whenua over Motiti and its associated islands andreefs. The basis for this finding was explained as follows:[85] We make this finding based upon the recognition of their status by allparties and witnesses who appeared before us and based on:● Their ancestral connections;● Their continuous occupation;● Their proximity to the reef;19 Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 73 at [82].● The nature of their cultural and customary associations withthe reef;● Their traditional use of the area as a fishing ground; and● The matter in which they have exercised their kaitiakitangaincluding through the use of tikanga, their customary valuesand practices pre and post the Rena disaster.[86] It logically follows that Ngāi Te Hapū – Te Patuwai and Te Whānau aTauwhao have the right to exercise rangatiratanga or customary authority overthe reef. Mr Mikaere stated that this position is unchallenged in terms ofMotiti and Ōtāiti. The position of Te Whānau a Tauwhao is equallyunequivocal. As a result of this finding, it is the tikanga of these hapū thatshould be applied to Ōtāiti, a matter that becomes important in ourconsideration of how the mauri of the reef is recovering, if at all.[71] The Court then acknowledged the different interests of other iwi withrelationships to Motiti and the different forms of kaitiaki responsibilities they have andthat their connections also required recognition. In the result, the Court resolved thatthe proposed Kaitiaki Reference Group included membership that recognised theircustomary association, while ensuring that Ngāi Te Hapū had numerical majority onit. The Court also recognised the different relationships each of the iwi had to Motitiand its associated Islands, while acknowledging the stronger mana whenua and thuskaitiaki status of Ngāi Te Hapū.[72] The need for caution when making these types of assessments is obvious, aswas noted by the Waitangi Tribunal in The Tāmaki Makaurau Settlement ProcessReport.20 That Tribunal relevantly noted:21Where there are layers of interests in a site, all the layers are valid. They derivefrom centuries of complex interaction with the whenua, and give all the groupswith connections mana in the site. For an external agency like The Office ofTreaty Settlements to determine that the interests of only one group should berecognised, and the others put to one side, runs counter to every aspect oftikanga we can think of. It fails to recognise the cultural resonance of iconicsites, and the absolute imperative of talking to people directly about what isgoing on when allocation of exclusive rights in maunga is in contemplation.[73] But the statutory obligation to recognise and provide for the relationship ofMāori and their culture and traditions with their whenua and tāonga, to have regard to20 Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007). See alsoRekohu: A report on Moriori and Ngāti Mutunga claims in the Chatham Islands (Wei 64, 2001) at[2], [4] and [13].21 At 97.their kaitiakitanga and to take into account the principles of the Treaty of Waitangi,does not permit indifference to the tikanga-based claims of iwi to a particular resourcemanagement outcome.22 On the contrary, the obligation "to recognise and providefor" the relationship of Māori and their culture and traditions with their whenua andother tāonga must necessarily involve seeking input from affected iwi about how theirrelationship, as defined by them in tikanga Māori, is affected by a resourcemanagement decision. To ignore or to refuse to adjudicate on divergent iwi claimsabout their relationship with an affected tāonga (for example) is the antithesis ofrecognising and providing for them and an abdication of statutory duty.[74] I am fortified in this view in the present context, given the clear policy of theAUP to require resource management decision-making to be informed by "ManaWhenua" perspective, including their mātauranga Māori and tikanga. That mustinevitably include divergent claims by more than one iwi claiming mana whenua to aparticular outcome based on mātauranga Māori and their tikanga.Part 3 - Procedural Error[75] The first ground of appeal concerns the decision of the Environment Court toreframe the preliminary question. This engages consideration r 10.21 of the DistrictCourt Rules 2014 (DCR) which states:10.21 Orders for decisionThe court may, whether or not the decision will dispose of the proceeding,make orders for –(a) the decision of any question separately from any other question,before, at, or after any trial or further trial in the proceeding; and(b) the formulation of the question for decision and, if thought necessary,the statement of a case.[76] Mr Warren for the appellants (supported by Mr Quinn for the Council) makesfour main contentions about the approach taken by the Environment Court:22 McQuire v Hastings District Council, above n 4.(a) The Reframed Question does not achieve the object of the preliminaryquestion process, that is, to resolve the key issue raised by the NgātiWhātua Ōrākei, namely whether the Environment Court hasjurisdiction to determine whether any tribe holds primary mana whenuaover an area.(b) The Court's decision to modify the question to "assist in the resolutionof the dispute" was not a lawful exercise of the Court's judicialfunction.(c) The Court did not have jurisdiction per DCR 10.21 to reframe thequestion because the parties did not ask for it and the question does notaddress the key issue raised in the Ngāti Whātua Ōrākei Appeal.(d) The Court acted unfairly, because it deprived the parties of a properopportunity to submit on a question that has potentially far greaterimplications than the Agreed question.23[77] Ms Fraser responds, in short, that:(a) The answer to the Reframed Question resolves a key pleaded issue,namely the jurisdiction of the Court to take into account relative orlayered iwi interests.(b) The Court's function extends to assisting the parties to resolve thedispute, referring to (among other things) the powers of the Court togovern its own procedure.(c) The Court's jurisdiction per DCR 10.20 is sufficiently wide to allow areframed question of law.23 Citing: Te Whare o Te Kaitiaki Ngahere Inc v West Coast Regional Council [2015] NZHC 2769;Schmuck v Northland Regional Council [2020] NZHC 590; Ngāti Apa Ki Te Waipounamu Trust vAttorney-General [2004] 1 NZLR 462 (CA).(d) There was no substantive unfairness to the appellants because theywere given the opportunity to make submissions on the ReframedQuestion or a preliminary version of it.Assessment[78] I do not agree with the first contention by Mr Warren that the ReframedQuestion (and its answer) does not achieve the objective of the preliminary questionprocess. The Court, in substance, achieved the objective of the Agreed Question; justnot in a way sought by the parties. The Court rejected jurisdiction to make generalisedstatements about the "primacy" of mana whenua (a finding not appealed), but affirmedthe Court's jurisdiction to assess their relative interests by reference to the relativestrength of the relationship of iwi to the affected area and to make determinations inlight of that relative strength.[79] I also disagree with the second contention about the Court's lack of power toassist the parties to resolution. The Environment Court is purpose-built to assist partiesto find (often non-binary) resolution of their disputes. Procedurally, the Court ismandated to achieve cost-effective resolution, avoid undue formality and receive anyevidence it considers appropriate.24 Subject to issues of scope,25 it is empowered tofind solutions that achieve sustainable management (a notoriously broad concept), andit performs a public function, in accordance with the Part 2 directives and in light ofcommunity led statutory planning instruments.[80] As to the third contention, I accept that DCR 10.21 does not expressly envisagemodification of the question mid-hearing. Rather, a two-step process is envisaged,first the formulation of the question and second the determination of the questionitself.26 But, as has often been said about statutory interpretation, "context iseverything".27 Given the very broad remit of the Environment Court to achievesustainable management, I see no reason (subject to fairness considerations) why theCourt could not reformulate a question if that is going to better achieve the object of24 Resource Management Act 1991, ss 269 and 276.25 Section 5. For example, in the context of plan promulgation see Albany North Landowners vAuckland Council [2017] NZHC 138, especially from [114].26 Innes v Ewing (1986) 4 PRNZ 10 at 18.27 McQuire v Hastings District Council, above n 4, at [9].the preliminary question process, that is, the resolution of part or of all of the appeal;bearing in mind also, that it remained open to the Court to refuse to answer thequestion. Furthermore, as Ms Fraser submits, the main grounds of appeal expresslyengage concepts of relative interests and/or layers of interests and how those relative,or layers of, interests are to be factored into RMA decision-making in accordance withss 6(e), (g) and 8 RMA. The answer to the Reframed Question responds directly tothese pleaded grounds.[81] Turning, then, to the fourth contention – the claim of unfairness. While theReframed Question was discussed in argument and mooted as a potential approach,the Court did not formally invite submissions on it. The parties were entitled to beheard on a reformulated question, the resolution of which bears on their substantiverights.28 Also, on such an important matter, dealing with the complex concept of"mana whenua," the parties should have had a full opportunity to be heard on anoutcome which was not sought by them. More so, given that, by answering theReframed Question in the affirmative, the outcome favoured Ngāti Whātua Ōrākei.[82] But this is not a clear case of substantive unfairness. First, the EnvironmentCourt engaged with Counsel on the idea of a "lower grade question" and invitedcomment on the prospect of it. Second, as Mr Warren conceded, he would not haveadvanced any materially different argument had the Court invited him to make furthersubmissions directly on point. In short, he would have submitted that, for the samereasons already advanced by him on the issue of primacy, the Court does not havejurisdiction to assess relative strengths of iwi relationships to a particular place andthen make RMA decisions based on who had the stronger relationship.[83] Initially, I was going to dismiss this ground of appeal. But on reflection, andwith the benefit of reviewing more carefully the exchanges between Counsel and theCourt, I have come to the view that a clearer opportunity should have been affordedto the appellants and Ngāti Whātua Ōrākei to be heard on the Reframed Question andits answer, given the importance of the underlying subject matter. This first part of theappeal is therefore allowed.28 The risks of not doing so were exemplified in Tainui Māori Trust Board v Treaty of WaitangiFisheries Commission [1997] 1 NZLR 513 at 521-522.[84] In terms of relief, Mr Warren submitted that if I answered this part of the appealin its favour I must set aside the Court's decision on the Reframed Question and thenanswer part (b) of the Agreed Question, no. But that belies the fact that the parties havehad a full opportunity to be heard on the Reframed Question in this Court, so anyprocedural unfairness has been remedied. Moreover, if Mr Warren is correct, mypreference would have been to refer the matter back for reconsideration to theEnvironment Court, being the specialist Court. The parties, however, do not want thematter to be referred back and invited me to address the jurisdictional issue withfinality. As no party is seeking now to challenge the Environment Court's answer topart (a) of the Agreed Question, I am invited to address part (b) of the Agreed Question(the second issue), and then, if necessary, the Reframed Question (the third issue).Part 4 – the questions and some answersThe key arguments[85] Before I address the questions, it is helpful to set out the key arguments for theparties as they relate to both of them.[86] The appellants and the Council say that there is no jurisdiction to make findingson relative iwi mana whenua. Ngāti Whātua Ōrākei disagree, though they now adoptthe approach taken by the Environment Court, that is, a "relative strength ofrelationship" approach. I will therefore summarise the submissions of parties on bothaspects together before moving to answer the Reframed Question.[87] Mr Quinn led the argument of the issue of jurisdiction and his submissionswere adopted by Mr Warren. He submitted that the Environment Court does not haveexpress or implied jurisdiction to determine primacy or the relative strengths of hapūand iwi relationships in an area affected by a proposal. Such an exercise is notnecessary to fulfil the Council's regulatory role under the RMA, and it is not theappropriate forum to determine such disputes. The Council's view is that culturaleffects of activities can and should be recognised through resource consent conditionswithout ranking iwi or hapū relative to one another.[88] Mr Quinn also argued there is nothing in the RMA or any subordinateinstrument that requires or expressly enables the determination of primacy or relativestrengths of customary associations in different areas,29 and that if such a jurisdictionwas contemplated by Parliament, one would expect that to be made express in theRMA. He also contrasts the express powers of the Māori Land Court under the Te TureWhenua Māori Act 1993 to determine the relative strengths of iwi and hapūrelationships, which the RMA does not enjoy.[89] Mr Quinn also referred to the provisions of the AUP. He contends the AUP wascompetently and recently prepared, having regard to Part 2 of the RMA, making itunnecessary to have direct regard to Part 2 in determining consent applications.30 Thethrust, then, of his submission, is that the AUP enables and envisages consideration oftangata whenua views without any need, or provision for, ranking of relativerelationships among iwi and hapū to a particular area. He further submits that tangatawhenua are best placed to assert their relationship with their whenua and thatcompeting views as to who has customary authority are not matters to be resolved bythe Environment Court.[90] While Mr Quinn accepts that the Council must "face up" to the complex issuesit now faces, he emphasised the Council discharges that obligation in ensuring thedecision-making process is properly informed by the views of those groups affectedby the process, not by ranking the strength of their relative interests, especially asconsent conditions in these circumstances can be crafted to address cultural effectswithout one particular group being adversely affected.31[91] He also maintains, however, that "it is not practically possible for the Councilor the Environment Court, to quantify relative to other iwi and hapū, the customaryauthority of Ngāti Whātua Ōrākei". He referred to The Tāmaki Makaurau SettlementProcess Report, who noted that the layers of interest are complex and intense, and tothe decision of the Environment Court in Tuwharetoa Māori Trust Board v Waikato29 Citing the observations to this effect in Minhinnick v Minister of Corrections EnvC AucklandA043/2004, 6 April 2004 at [117]-[118].30 See R J Davidson Family Trust v Marlborough District Council, above n 5.31 Citing Auckland City Council (formerly Auckland Regional Council) and others v AucklandCouncil (formerly Manukau City Council) and others [2011] NZEnvC 77, [2011] NZRMA 347 at[35]-[37].Regional Council, wherein the Court stated that it was "not the commissioners' taskto resolve "mana whenua status" and nor is it ours."32 He referred also to thedifficulties inherent in applying Māori concepts and the reluctance of the Courts toapply them in a way that is based more on phrasing of the English than the customaryunderstanding, and that the concept needs to be considered in its broader culturalcontext, rather than taking a Pākehā compartmentalised approach.[92] Mr Quinn also submits that the purpose of resource consent conditions is notto determine the relative strengths of hapū/iwi relationships. He says that a conditionmust be directly connected to an adverse effect on the environment. He then submitsthat a condition stating or implying that a particular group holds primary mana whenuato address cultural effects would not be directly connected to an adverse effect of theactivity on the environment, because it is not necessary to determine relative status toaddress any customary effects of an activity. He adds that conditions can be crafted toaddress cultural effects arising from the proposed activity without the conditionsthemselves adversely affecting Ngāti Whātua Ōrākei.[93] Mr Warren also contends that the RMA does not give councils, consentauthorities, or the courts any jurisdiction to determine the primacy or relative strengthsof iwi relationships within any rohe. He submitted that those decision-makers can onlylook at the relationships each iwi or hapū entity has individually to a certain area orresource, and grant resource consent conditions which accord with the nature of thoserelationships. He says that the combined effect of ss 6,7 and 8 of the RMA is that anyMāori group (or individual for that matter) that has a requisite interest in theapplication, is entitled to be heard and to have that interest and their relationshiprecognised and provided for. He says it would be wrong to read them as requiringprimacy or relative strength of relationship.[94] Mr Warren also cites a number of cases as examples of judicial reluctance inthe past to make mana whenua determinations where competing interests exist,33 as32 Tūwharetoa Māori Trust Board v Waikato Regional Council [2018] NZEnvC 93 at [128].33 See for example Paihia and District Citizens Assn Inc v Northland Regional Council PlanningTribunal Decision A77/95; Tawa v Bay of Plenty Regional Council Planning Tribunal DecisionA18/95; Kaiawha v Bay of Plenty Regional Council [2010] NZRMA 193 (EnvC); Hokio Trusts vManawatu-Wanganui Regional Council [2016] NZEnvC 185; Hokio Trusts v Manawatu-Wanganui Regional Council [2017] NZHC 1355, (2017) 20 ELRNZ 426; Luxton v Bay of Plentywell as the Waitangi Tribunal's report – The Tāmaki Makaurau Settlement ProcessReport, which heavily criticised the Crown's actions in giving primacy to certain iwiinterests over others in settling historic grievance claims in this rohe.34[95] Panuku took a neutral position in these proceedings. It will abide by thedecision of this Court. The only point counsel wished to make was, if this Court wasto find a material error of law in the Environment Court's decision, it would preferthis Court to decide the issue of jurisdiction, as opposed to reverting the decision backfor redetermination.[96] Ms Fraser responded that the RMA framework, under Part 2 in particular, setsout a number of directions relating to Māori issues.35 She submitted that the RMAdoes give explicit jurisdiction to make determinations as was envisaged by theEnvironment Court. She notes that the RMA expressly requires decision-makers toassess the cultural effects of resource consent applications, which must include theeffect on the different relationships that individual iwi and hapū have with natural andphysical resources. Ms Fraser also emphasised that the jurisdiction as framed is not ageneral one, and can only be invoked in circumstances such as the present, where thereare competing interests and the relative strengths of iwi and hapū relationships arerelevant to assessing cultural effects and imposing conditions to manage such effects.[97] Moreover, Ms Fraser submitted consent authorities are frequently required toconsider and determine complex issues that involve competing evidence, and that it ispart of their role to engage with complexity and resolve competing evidence whererelevant to resource consent proposals (including consent conditions). In this regard,she submitted cultural effects are no different from other environmental effects.[98] In addition to that point, Ms Fraser pointed out that iwi and hapū can and willhave different relationships within an area that therefore require different forms ofrecognition and provision, and like other submitting groups, cannot all agree on certainconditions. Thus, if decision-makers are confined to giving equal weight to evidenceRegional Council Planning Tribunal Decision A49/94; Tūwharetoa Māori Trust Board v WaikatoRegional Council, above n 32.34 Waitangi Tribunal, above n 20, at 2 and 109.35 Namely, ss 5, 6(e) and (g), 7(a), and 8.from iwi and hapū submitters, they will be unable to appropriately resolve issueswhich are squarely before them. The primary point of Ms Fraser's submissions is thatthe notion of varying relationships is (or should be) uncontentious, and there is noreason why consent conditions should not recognise and provide for the differentlevels of association, when raised by relevant evidence as to cultural effects of aproposal. She also submitted that the Environment Court is in fact well-equipped toconsider and weigh competing evidence on environmental effects, including tikangaevidence on cultural effects.[99] After the hearing, the parties also filed detailed submissions on other parts ofthe RMA relating to Māori, including the provisions I have addressed in Part 2 of thisjudgment. They were of considerable assistance to me but it is necessary only toobserve that the parties maintain that their respective positions on the jurisdiction ofthe resource management decision-makers to make decision about relative manawhenua are unaffected or reinforced by these other provisions.Primary mana whenua – Agreed Question part (b)[100] To repeat, Agreed Question part (b) states:Does the Environment Court have jurisdiction to determine whether any tribeholds primary mana whenua over an area the subject of a resource consentapplication:(b) where relevant to claimed cultural effects of the application and thewording of resource consent conditions.[101] As I have said, there is nothing in Part 2 of the RMA that empowers resourcemanagement decisions-makers, including the Environment Court to confer, declare oraffirm tikanga based rights, powers and/or authority per se. As Messrs Warren andQuin submitted, the jurisdiction to undertake that important task for the purposes ofState law sits with the High Court and the Māori Land Court.36[102] However, as I have also explained, when exercising functions under the RMA,the Environment Court is necessarily engaged in a process of ascertainment of tikanga36 The affirmation of tikanga Māori per se in Te Ao Māori is for Māori.Māori in order to discharge express statutory duties to Māori. Thus, where an iwiclaims that a particular resource management outcome is required to meet the statutorydirections at ss 6(e), (g) 7(a) and 8 (or other obligations to Māori), resourcemanagement decision-makers must meaningfully respond to that claim. That duty tomeaningfully respond still applies when different iwi make divergent claims as to whatis required to meet those obligations, and this may mean a choice has to be made as towhich of those courses of action best discharges the statutory duties under the RMA.As Te Ngai Hapu aptly illustrates, that may (for example) require evidential findingsabout who, on the facts of the particular case, are kaitiaki of a particular area and howtheir kaitiakitanga, in accordance with tikanga Māori, is to be provided for in theresource manage outcome.[103] That does not mean the answer to part (b) of the Agreed Question is "yes",even if it is recalibrated to address whether the Environment Court has jurisdiction tomake evidential findings about "primary mana whenua" status for the purpose ofmeeting the statutory directions at ss 6(e), 7(a) and 8 or other obligations to Māori.As the Waitangi Tribunal made clear in The Tāmaki Makaurau Settlement ProcessReport, the concept of primary mana whenua is highly controversial, and a preliminaryquestion concerning jurisdiction based on it is ill-conceived, or as the EnvironmentCourt found, "misdirected". What that concept means in tikanga Māori or in State lawis not settled and so provides an uncertain reference point for a preliminary questionabout jurisdiction.[104] To illustrate, in the present case, "primary mana whenua" is not defined by theparties. I was not assisted by the agreed factual matrix which simply refers to"primacy" and to "primary mana whenua (customary authority)" without furtherexplanation or clarification as to what is meant by "primary" "mana whenua" orprimary "customary" authority in tikanga Māori.[105] I (unfairly on reflection) invited counsel for Ngāti Whātua Ōrākei to assist meon what was meant by "primary mana whenua" in tikanga Māori. She, responsibly,did not attempt to offer an inexpert opinion on that difficult subject matter. So, I haveconsidered whether this problem is addressed by adopting Professor Williams'definition of "mana whenua" – that is: the notion of territorial rights or authority over land. The concept canloosely be equated with the Pākehā idea of jurisdiction.[106] He notes that mana whenua and ahi kā are closely related, and that a groupcannot have mana whenua without ahi kā, and losing ahi kā (through raupatu, forexample) or failure to maintain it would erode a group's mana whenua. Mr Blair alsosays that primacy of "mana whenua" should to be read as including "the primacy ofour customary authority and rangatiratanga", but it does not mean exclusive, and "therights that go with being the ahi kā iwi also comes with obligations to manaaki tovisitors."[107] "Primary mana whenua" and rights of ahi kā might then be said to mean theiwi that hold the primary jurisdiction over land with concomitant obligations ofmanaakitanga. But, with respect to the evident clarity of Professor Williams' learnedopinion, the transferability and applicability of Pākehā jural concepts such as"jurisdiction" and "primacy" to "mana whenua" still needs to be worked out at thefiner grain, in light of the applicable tikanga Ngāti Whātua Ōrākei and to the extentthat there are other iwi are affected, the applicable tikanga of those iwi, before therecalibrated preliminary question can be meaningfully answered.[108] The problem of cross-cultural definition is referred to in Mr Quinn'ssubmissions as an added reason to exclude jurisdiction.37 But that would rarely, ifever, be a reason to exclude jurisdiction while at the same time purporting to dischargethe RMA's express obligations to, among other things, recognise and provide for therelationship of Māori and their culture and traditions with their taonga. However, Ithink it is a reason to require clarity as to the meaning of the tikanga concept in issuebefore resolving the issue of jurisdiction. Furthermore, as the Environment Courtsuggested, resolution of issues of the present kind will normally require evidence, forexample, about mana whenua rights and interests according to tikanga Māori.3837 Mr Quinn cited a helpful article on this issue: Catherine Iorns Magallanes "The Use of TangataWhenua and Mana Whenua in New Zealand legislation: Attempts at Cultural Recognition" (2011)42 VUWLR 259.38 Ngāti Whātua Ōrākei Whai Maia Ltd v Auckland Council, above n 1, at [91].[109] It appears that the parties proceeded before the Environment Court on the basisthat "primary mana whenua" means "pre-eminence or dominance".39 But what thatmeans in a resource management context is also ambiguous. Does it mean NgātiWhātua Ōrākei has a power of veto in terms of recognition of other iwi interests inresource management matters? Does it mean that Ngāti Whātua Ōrākei is to beregarded as authoritative in terms of effects on iwi and Māori, including theappellants? Or does it mean, as it did in Te Ngai Hapu, that Ngāti Whātua Ōrākeitikanga applies in relation to the affected area? It may even be a combination of all ofthese interpretations, or none of them at all. The answer to the jurisdictional questionis likely to be different depending on which of these (or other innumerable possible)outcomes is envisaged. It could not extend to a right of veto given the longstandingprinciple that Part 2 does not confer a right of veto.40 It might, on the facts of aparticular case, mean that the views of iwi could be authoritative in terms of adversecultural effects,41 or that the tikanga of that iwi ought to be applied.42[110] All of this serves to emphasise that when iwi make mana whenua-based claims,those claims must be clearly defined according to tikanga Māori, directed to thedischarge of the RMA's obligations to Māori and to a precisely articulated resourcemanagement outcome. In this regard, I apprehend that the largely unqualified claimto pre-eminent mana whenua status per se by Ngāti Whātua Ōrākei diverted thedecision-makers from their primary task of ascertainment of the applicable tikangaMāori for the purpose of discharging the RMA's duties to Māori. In fairness to NgātiWhātua Ōrākei, Mr Blair has articulated the claim, the duty and the resourcemanagement concern with some precision. It is useful to repeat his actual concernhere:Given the proposal was for 19 Pou Whenua, which reflects the Wider Iwi,Ngāti Whātua Ōrākei took this as another example of the erosion of ourcustomary rights and the elevation of status of many other iwi who cannotclaim any customary rights to the land in the Auckland CBD to the same extentas Ngāti Whātua Ōrākei. We had no choice but to object to the proposals inthe strongest possible terms.39 At [81].40 Watercare Services Limited v Minhinnick [1998] 1 NZLR 294 (CA) at 305.41 See for example: Ngāti Hokopu Ki Hokowhitu v Whakatane District Council, above n 15.42 Ngāi Te Hapū Inc v Bay of Plenty Regional Council, above n 19.In Māori terms a turangawaewae or 'place to stand', is a place that isindisputably your land and water and a place where your tikanga or worldview prevailing is fundamental. If Ngati Whatua Orakei has noturangawaewae or any place where its views matter the most (and more thanany others at all), then it essentially is no longer Māori and it certainly is nolonger Ngāti Whātua Ōrākei. If even in our very heartland, the centralAuckland Isthmus and the CBD, we are simply accorded the same status asthe Wider Iwi, then our very being as Māori and as Ngāti Whātua Ōrākei isundermined.[111] In my tentative view, this concern raised by Mr Blair does not require adetermination that Ngāti Whātua Ōrākei is "pre-eminent or dominant". It requires anexamination of whether, having regard to tikanga Ngāti Whātua Ōrākei, the pouwhenua condition is undermining their very being as Māori and as Ngāti WhātuaŌrākei and if so, whether the imposition of a condition of this kind serves thesustainable management purpose, and accords with the directions at ss 6(e),7(a) and8. When framed in this way, no serious issue of jurisdiction arises.[112] In any event, my answer to the second issue is in three parts:(a) The Environment Court does not have the jurisdiction under Part 2 ofthe RMA to confer, declare or affirm tikanga-based rights, powersand/or authority.(b) The Environment Court may make evidential findings about tikanga-based rights, powers and/or authority insofar as that is relevant todischarge the RMA's obligations to Māori.(c) I otherwise refuse to answer part (b) of the Agreed Question withoutthe benefit of full argument and evidence on the meaning of "primarymana whenua" and its relevance to the decision-making exercise.The Reframed Question[113] For ease of reference, the reframed question is:When addressing the s 6(e) RMA requirement to recognise and provide for therelationship of Māori and their culture and traditions with their ancestral lands,water, sites, waahi tapu and other taonga, does a consent authority includingthe Environment Court have jurisdiction to determine the relative strengths ofthe hapu/iwi relationships in an area affected by a proposal, where relevant toclaimed cultural effects of the application and wording of the resource consentconditions.[114] I preface this discussion by expressing similar concerns about the justiciabilityof this question in the abstract, untethered to a specific fact situation and evidence.Indeed, as I have noted, it is not possible to be definitive about the scope of thejurisdiction to respond to iwi tikanga-based claims, including claims based in assertedmana whenua and relative strength, in the abstract. However, I am satisfied that aqualified answer may be given to the Reframed Question which adequately addressesthis issue.The answer[115] It should be evident from the discussion above, that my answer to the ReframedQuestion is "yes", subject, however, to the important qualification that a relativestrength claim must be clearly defined according to tikanga Māori and mātaurangaMāori, clearly directed to the discharge of an obligation to Māori under the RMA, andprecisely linked to a specific resource management outcome. These factors areimportant to ensure that relational claims are not simply an invitation to confer, declareor affirm tikanga based rights, powers and authority.[116] Another illustration assists to understand the process to be undertaken by thedecision-maker. The approach adopted in Ngāti Hokopu Ki Hokowhitu v WhakataneDistrict Council is regarded by some leading commentators as a leading authority onthe "appropriate metrics for assessing conflicting evidence from within the Māorisystem".43 In this case, the Court had to determine whether a proposal by Te Rūnangao Ngāti Awa ("TRONA") to develop a new marae complex within "dune lands" atPiripai in Whakatane should be granted. The appellants, a hapū of Ngāti Awa, calledNgāti Hokopu ki Hokowhitu, and a group of individuals called Te Toka, claimed thatthe dune lands were within the rohe of Ngāti Awa and contained an urupa that is awahi tapu of great significance to the iwi. There was, however, disagreement among43 See for example: Joe Williams "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimensionin Modern New Zealand Law" (2013) 21 Waikato L Rev 1 at 21.the hapū of Ngāti Awa as to the existence of the wahi tapu at this location and extensiveevidence was given on behalf of the parties about this issue.[117] To resolve this dispute, the Court developed the following methodology forassessing divergent claims about iwi and hapū values and traditions, that is by listeningto, reading and examining (amongst other things):[53] ● whether the values correlate with physical features of theworld (places, people);● people's explanations of their values and their traditions;● whether there is external evidence (e.g. Maori Land CourtMinutes) or corroborating information (e.g. waiata, orwhakatauki) about the values. By 'external' we mean beforethey become important for a particular issue and (potentially)changed by the value-holders;● the internal consistency of people's explanations (whetherthere are contradictions);● the coherence of those values with others;● how widely the beliefs are expressed and held.(footnotes omitted)[118] One of the key tasks that had to be undertaken by the Court was to identify themana whenua of the affected land. The Court framed that the question to be answeredin this way:[150] Who is the relevant Maori tribal grouping(s) whose relationships(whanaungatanga) with the 100 acre block we should be considering?[119] There is nothing in this question that suggests the Court is arrogating to itselfthe power to designate or rank iwi or hapū or mana whenua. The Court was simplydischarging the functions that it must in accordance with ss 6(e) and 7(a). The Courtwent onto say:[152] There is a large issue as to whether the two branches of Ngati Hokopulocated at Wairaka Marae and Te Hokowhitu-a-Tu Marae have significantmana whenua in respect of the 100 acre block. Of the appellant Ngati Hokopuki Hokowhitu, Dr Mead wrote:With respect to the appellant Ngati Hokopu Ki Hokowhitu, I note thatit is part of Ngati Hokopu of Te Whare o Toroa marae at Wairaka.This group is referred to as Ngai Hokopu ki Hokowhitu o Tu (NgatiHokopu of the Maori Battalion). It was out of our deep respect for thesoldiers of Ngati Awa who served in two World Wars and especiallyin the Maori Battalion that the elders of Ngati Awa offered the groupa place on the Ngati Awa Trust Board and then TRONA. The group isnot a hapu of the same order as Taiwhakaea II, Nga Maihi, NgaiPukeko or Te Pahipoto. Rather, they are an offshoot of Ngati Hokopu.The Court should be aware that the principal hapu Ngai Hokopu ofwhich this group is an offshoot, supports the proposed developmentand has done so from the very beginning, when the idea was discussedand developed.(footnotes omitted)[120] This passage is significant also because it exemplifies that the assessment isnot about ranking hapū, but about a fact-based evaluation, in this case, supported byevidence of a renown pūkenga of tikanga Ngāti Awa.[121] The Court also, correctly in my view, emphasised:[185] We observe first that we are not the Government. New Zealand hasan important convention that the Courts are separate and completelyindependent of the Government. Secondly we are not determining – and thisis very important – what is tikanga Ngati Awa. We are stating – on evidencefrom Ngati Awa (whether direct or indirect) – that at this time, and for theseproceedings, the tikanga is, more likely than not, that the 100 acre block is,and since before 1840 has been, ancestral land but not waahi tapu. Thatnarrow finding is important because there is a common misconception that theEnvironment Court is taking over the definition of Maori concepts and theirapplication to specific areas or things. The Court is not – the idea isnonsensical if the meaning of a word is the way it is used.(footnotes omitted)[122] Similarly, when the Court evaluates the relative strength of relationships it isnot determining what is tikanga Māori. The Court is simply stating that, at a particulartime, on the available evidence, it is more likely than not that the relationship of aniwi is stronger than another iwi in relation to a particular area. It is important to addthat what this means, in any individual case, still needs to be worked out, having regardto the views of all affected iwi. I am satisfied therefore that the Court was correct toanswer the Reframed Question in the affirmative.[123] Given the care and effort that the Council and the appellants have put into thispart of their argument, I propose now to address each of their main propositions.Nothing in the RMA purports to confer on local authorities the power to rank iwi, andif Parliament intended to confer such jurisdiction, it would have done so expressly, asit has in the Te Ture Whenua Māori Act 1993The ranking of iwi is not necessary to discharge the Environment Court's functions[124] I do not accept the premise of these propositions, namely, that the EnvironmentCourt is engaged in a process of conferring status or ranking iwi per se. Rather, as Ihave said, the Environment Court engaged in a process of ascertainment of tikangaMāori in order to discharge, among other things, the duty at s 6(e) to recognise andprovide for the relationship of Māori and their customs and traditions with theirwhenua and other tāonga. Conversely, indifference to a claim by an iwi to manawhenua and what that means to that iwi, is the antithesis of recognising and providingfor their relationship with that whenua.The AUP does not allow the ranking of iwi[125] I agree that the AUP does not envisage the ranking of iwi. However, the clearoverarching policy of the AUP is to require resource management decision-making tobe informed by "Mana Whenua" perspective, including their mātauranga Māori andtikanga. That must logically include taking into account and responding to claims byiwi to have their mana whenua recognised and provided for in terms of theirmātauranga Māori and tikanga, even when those views conflict with the views of otheriwi.It is not practically possible for the Council or the Environment Court, to quantifyrelative to other iwi and hapū, the customary authority of Ngāti Whātua Ōrākei[126] While the complexity of the overlapping iwi interests in Tāmaki Makaurau iswell-known, it is not possible in the context of a preliminary question aboutjurisdiction to make a coherent, let alone definitive, finding about whether a Councilor the Court is practically able to quantify relative authority. Moreover, theproposition proceeds from an inaccurate premise, namely, that Councils assessingrelative strength are engaged in a quantitative exercise. Any finding as to relativestrength will only ever be of a qualitative kind, evident for example in Ngāi Te HapūInc44 and in Beadle v Minister of Corrections.45Consent conditions can be imposed to recognise mana whenua without ranking iwi[127] I agree, and nothing I say here should be taken to suggest that conditions mustor should be framed in way that purports to rank iwi per se.Local authorities can recognise and provide for iwi relationships with their taongawithout assessing the relative strengths of that relationship[128] I agree, and they often do, but that does not preclude local authorities or theCourt from assessing relative strength where that claim is properly grounded in tikangaMāori, is directed to the discharge the RMA's duties to Māori and is precisely linkedto a particular resource management outcome. To hold otherwise is to fetter thecapacity of iwi to inform decision-makers of what they consider to be important tothem and what they consider is tika.The Environment Court has previously refused to make determinations about manawhenua status[129] I accept that the Environment Court has shown reticence about, and onoccasion refused to make, determinations about mana whenua status.46 In mattersinvolving such complexity, that reticence is entirely understandable and in many, ifnot most, cases it will be unnecessary to make any inquiry of this kind. I also notethat in two of the cases cited by counsel, Tawa v Bay of Plenty Regional Council andTuwharetoa, the Court was responding to claims that certain iwi should be excludedfrom the consideration or that it was necessary only to hear from certain iwi. ThoseCourts were correct to reject those claims.47 To the extent those authorities are beingadvanced for a broader proposition that the Environment Court can never inquire into44 Ngāi Te Hapū Inc v Bay of Plenty Regional Council, above n 19.45 Beadle v Minister of Corrections EnvC Wellington A74/02, 8 April 2002.46 Paihia and District Citizens Assn Inc v Northland Regional Council, above n 33; Kawhia v Bayof Plenty Regional Council, above n 33; Hokio Trusts v Manawatu-Wanganui Regional Council,above n 33, Luxton v Bay of Plenty Regional Council, above n 33.47 Tawa v Bay of Plenty, above n 33, at [35]-[36]; Tūwharetoa Māori Trust Board v Waikato RegionalCouncil, above n 32, at [128]-[129].relative mana whenua status in order to respond to divergent iwi claims, I disagree, forthe reasons already expressed.[130] I would also observe that from the earliest cases, the Courts have recognisedthe difficulties inherent in making assessments of this kind, but have not excluded thatpossibility altogether. Luxton v Bay of Plenty Regional Council is invariably theauthority most cited for the proposition that the Courts avoid making any findingsabout mana whenua.48 The Tribunal (as it then was) there said:49 this Tribunal would avoid, if possible, making any findings about the statusof a particular tribal authority, or about the scope of a whanau's rights astangata whenua, or about which hapu might have traditional or customaryinterests in a particular area.[131] The capacity to make assessments of relative status was affirmed by the HighCourt in Friends and Community of Ngawha Inc v Minister of Corrections. In thatcase, Wild J said:50[70] ..[a] Whilst s 2 of the Act does not expressly mandate the findingof primary kaitiaki and additional kaitiaki, such an approachis not at all inconsistent with s 2. Indeed, it seems to me toexactly accord with it. If the Court is to give effect to s 7(a),then it must first determine who are the kaitiaki.Guardianship, in Tikanga Maori, can involve degrees, and theexercise of stewardship at different levels. It is only kaitiakiwho can tell the Court what they consider kaitiakitanga andthe views of the kaitiaki who have most recently and closelyexercised stewardship over the land patently carry the greatestauthority.Conditions stating a particular group holds primary mana whenua to address culturaleffects would not be directly connected to an adverse effect of the activity.[132] Conditions purporting to state that a particular group holds mana whenua arelikely to be ultra vires insofar as the condition is simply about declarations of manawhenua or rights per se. But conditions that seek to recognise and provide for therelationship of mana whenua with their whenua or other tāonga may well be connected48 See Tawa v Bay of Plenty, above n 33 and Paihia and District Citizens Assn Inc v NorthlandRegional Council, above n 33.49 At 6 (emphasis added).50 Friends and Community of Ngawha Inc v Minister of Corrections [2022] NZRMA 401 at [70].to an effect of the activity on the environment, including an effect on mana whenuawho form part of that environment. This point is exemplified by the following passagetaken from Te Runanga o Ngai Te Rangi Iwi Trust v Bay of Plenty Regional Council:51[302] We conclude that the Port opening missed entirely the basic premiseof the appellants' cases. Namely, that they have a long established, well-recognised, and vital relationship with Te Awanui and Mauao. Te Paritaha andPanepane.[303] It was accepted, and we have concluded, that the modification to theseareas will adversely impact on that relationship. The Port's original openingcase did not even acknowledge the rangatiratanga of iwi. This focuses underSection 5 of the Act in two ways:[a] Enabling the cultural values of tangata whenua by recognisingand providing for the relationship (Section 6(e)); and[b] Avoiding, remedying or mitigating any adverse impact on thatrelationship to such an extent that we are satisfied theapplication with conditions meets the purpose of the Act.Conclusion[133] Overall therefore, in regards to the third issue, I am satisfied that whenaddressing the s 6(e) RMA requirement to recognise and provide for the relationshipof Māori and their culture and traditions with their ancestral lands, water, sites, waahitapu and other taonga, a consent authority, including the Environment Court, does havejurisdiction to determine the relative strengths of the hapū/iwi relationships in an areaaffected by a proposal, where relevant to claimed cultural effects of the applicationand wording of the resource consent conditions. But any assessment of this kind willbe predicated on the asserted relationship being clearly grounded in and defined inaccordance with tikanga Māori and mātauranga Māori and that any claim based on itis equally clearly directed to the discharge of the statutory obligations to Māori and toa precise resource management outcome.Outcome[134] The appeal is allowed in part. The Environment Court should have affordedthe parties a formal opportunity to submit on the Reframed Question.51 Te Runanga o Ngai Te Rangi Iwi Trust v Bay of Plenty Regional Council [2011] NZEnvC 402. Seealso Nolan, above n 16, from [14.18].[135] My answer to part (b) of the Agreed Question is in three parts:(a) The Environment Court does not have the jurisdiction under Part 2 toconfer, declare or affirm tikanga based rights, powers and/or authority.(b) The Environment Court may make evidential findings about tikangabased rights, powers and/or authority insofar that is relevant todischarge the RMA's obligations to Māori.(c) I otherwise refuse to answer part (b) of the Agreed Question withoutthe benefit of full argument and evidence on the meaning of "primarymana whenua" and its relevance to the decision-making exercise.[136] My answer to the Reframed Question is yes, provided that the claim based onrelationship strength is clearly grounded and defined in accordance with tikanga Māoriand mātauranga Māori, and any claim based on it is directed to the discharge of thestatutory obligations to Māori and to a precise resource management outcome.[137] I am not minded to award costs given the public interest nature of the appeal.Submissions may, however, be filed, no longer than three pages in length.