POUTAMA KAITIAKI CHARITABLE TRUST v HERITAGE NEW ZEALAND POUHERE TAONGA [2022] NZHC 2713

POUTAMA KAITIAKI CHARITABLE TRUST v HERITAGE NEW ZEALAND POUHERE TAONGA[2022] NZHC 2713 [19 October 2022]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECIV-2021-443-61[2022] NZHC 2713UNDER the Heritage New Zealand Pouhere TaongaAct 2014IN THE MATTER OF an appeal under s 299 of the ResourceManagement Act 1991 against a decision ofthe Environment Court upholding the grantof an archaeological authority to First GasLimited for the removal of a section ofpipeline at Clifton Road, TongapōrutuBETWEEN POUTAMA KAITIAKI CHARITABLETRUSTAppellantAND HERITAGE NEW ZEALANDPOUHERE TAONGARespondentFIRST GAS LIMITEDSection 301 of Resource Management ActpartyHearing: 17 October 2022Counsel: M Gibbs advocate (by leave) for AppellantV N Morrison-Shaw for RespondentB J Matheson for First Gas LimitedJudgment: 19 October 2022JUDGMENT OF CHURCHMAN JIntroduction[1] This is an appeal from a decision of the Environment Court which dismissedan appeal by the Poutama Kaitiaki Charitable Trust (Poutama) against a decision byHeritage New Zealand Pouhere Taonga (HNZPT), to grant to First Gas Limited (FGL)an archaeological authority to modify or destroy an archaeological site (theAuthority).1 Poutama allege that the Environment Court erred in its consideration ofthe appeal.[2] There are several grounds of appeal. There is much repetition in the groundsof appeal and most of the challenges are to findings of fact. The most significant issuefor Poutama appears to be the Environment Court's conclusion that they are nottangata whenua as that concept is defined in s 6 of the Heritage New Zealand PouhereTaonga Act 2014 (the Act). That section defines tangata whenua as meaning, "inrelation to a particular place or area, the iwi or hapū that holds, or at any time has held,mana whenua in relation to that place or area".[3] HNZPT opposes the appeal. FGL was an interested party in the EnvironmentCourt and remains so, and submits that the appeal should be dismissed.2Factual background[4] On 21 July 2020, FGL lodged an application for an archaeological authoritywith HNZPT, so as to be able to remove a redundant section of the Kāpuni gas pipelinefrom a paper road owned by the New Plymouth District Council in Tongapōrutu.While the project site itself contains no listed archaeological sites, there is a listedpit/terrace site (Q18/77) close to where the works are proposed to occur. Theapplication was therefore made on a 'precautionary basis'. The adjoining land on bothsides of the paper road is owned by the Gibbs Family Trust. Russell Gibbs andParani Gibbs farm that land with their children, and identify "with the Te Ahuru hapūof a collective describing itself as Ngā Hapū o Poutama".3[5] Other members of Poutama include Mr Leigh Horton, Mr Tamawaru Hunt,Ms Marie Gibbs, and Mr Haumoana White. Mr White is Māori, and has whakapapato Ngāti Tama. Ms Parani Gibbs is Māori of Tūhoe descent. The other members of1 Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga [2021]NZEnvC 165.2 Resource Management Act 1991, s 301.3 Above n 1, at [4].Poutama are all Pākehā. Poutama, the Gibbs and FGL have been involved previouslyin litigation. This case is the last of a number of cases that have examined issuesaround the claims by Poutama, and those connected with it, to be tangata whenua.4 Ithas previously been decided by this Court, and the Environment Court, that Poutamaare not tangata whenua, and are not mana whenua in respect of the area in question.5[6] The application was accepted on 27 July 2020, and following internalconsideration by HNZPT, the Authority was formally issued on 24 August 2020. TheAuthority:6covers works to remove 270 metres of a redundant section of the Kāpuni gaspipeline from land near the Coast at Tongapōrutu, North Taranaki. Theredundant pipeline is wrapped in a layer of coal tar enamel (CTE) containingasbestos, making its removal necessary in case of erosion around the pipeline.First Gas applied for the Authority on a precautionary basis, as a listedpit/terrace archaeological site (Q18/77) is recorded as being in the vicinity ofthe proposed works.it is generally understood (and we accept) that it is inland at a distance ofapproximately 50 to 100 metres from the line of the redundant pipe[7] On 2 September 2020, representatives of HNZPT met with members ofPoutama, following which HNZPT concluded that there was no evidence that Poutamawas tangata whenua. On 11 September 2020, Poutama filed an appeal against thegrant of the Authority, on the grounds that the application and its assessment wasdeficient. Poutama sought either the revocation of the Authority or to have its allegeddeficiencies remedied. Poutama do not oppose the removal of the redundant pipe, andit is common ground that Poutama does not own the land on which the archaeologicalsite is located. They allege that they should be included in the conditions of theAuthority as tangata whenua. Poutama's status as tangata whenua is not accepted by4 See, for example: Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga[2022] NZEnvC 124; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2022]NZHC 629; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2022] NZHC 628;Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZSC 153; PoutamaKaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga [2021] NZEnvC 165,(2021) 23 ELRNZ 216; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021]NZSC 87; and Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021]NZHC 872.5 Poutama Kaitiaki Charitable Trust and D and T Pascoe v Taranaki Regional Council and Ors[2020] NZHC 3159 at [168]; and Director-General of Conservation v Taranaki Regional Council[2019] NZEnvC 203 at [467].6 Above n 1, at [2]-[3].Ngāti Tama, Ngāti Maniapoto, and HNZPT. It is their collective position thatNgāti Tama are mana whenua in that area, a position with which FGL agree.Environment Court decision[8] The main issue addressed by the Environment Court was whether Poutama,through an entity described as the Te Ahuru hapū, are tangata whenua holding manawhenua over the area in respect of which the Authority was granted.7 Pursuant to s 58of the Act, any person who is directly affected by the exercise of a power to determinean application for an authority, may appeal against that decision. The issues weretherefore stated by the Court as:8(a) whether Poutama/Te Ahuru come within the meaning of the term'tangata whenua' such that they:(i) should have been consulted (as tangata whenua) about theAuthority under s 46; and(ii) have a right to appeal the Authority as a 'directly affected' partyunder s 58; and(b) whether the application, assessments and conditions are appropriate.[9] As Poutama do not own the land on which the works are to take place, or theadjoining land, the Court held that Poutama did not qualify as someone 'directlyaffected' by reason of a proprietary interest in the land.9 After considering thedefinition of "tangata whenua" in the Act, and a number of other definitions of relatedterms in tikanga and Te Reo Māori, the Court stated:10We think it is clear that the term "tangata whenua" as used and defined in theHeritage Act is directed towards the iwi or hapū which holds or at any timehas held customary authority over an area by reason of ancestral connectionthrough whakapapa to that place or area.7 At [10].8 At [31].9 At [35].10 At [48]-[49].We agree with counsel for Heritage NZ that the term "tangata whenua" in thiscontext means more than simply identifying as Māori. It requires awhakapapa connection to the land.11[10] In respect of the relevant area, the Court considered that there is "authoritativecorroboration" of Ngāti Maniapoto and Ngāti Tama being tangata whenua.12 It thenadopted the approach established in Ngāti Hokopu ki Hokowhitu v Whakatane DistrictCouncil, as the appropriate method to apply where there is conflicting evidenceconcerning tangata whenua status.13 The Court then stated:14Extensive documentary evidence was filed on behalf of Poutama and we werealso referred to a range of additional sources which [were] said to support orcorroborate their claim to tangata whenua status. While we have consideredall the evidence, we can dispose of the appeal largely on the basis of theconcession properly made by Poutama witnesses that the Te Ahuru hapū donot have a whakapapa connection to the land. We see this as fatal to the claimto tangata whenua status as that term is used in the Act. We also consider thatthe lack of a whakapapa connection at the hapū level also means that the claimto tangata whenua status on behalf of Poutama the iwi also fails. We alsoconsider that the iwi claim must fail due to lack of corroborating evidence ofan iwi known as Poutama or Ngā Hapū o Poutama in both historical andcontemporary times.It is common ground that Mr Gibbs and his siblings do not have a Māoriwhakapapa.[11] After hearing evidence from Mr White and Mr Gibbs as to how Te Ahurubecame a hapū of Ngā Hapū o Poutama the Court concluded:15the commitment demonstrated by Mr Gibbs and his siblings to theincorporation of Māori cultural values into the life of the whānau can be seenas a constructive and positive force not only for them but also for their childrenand those yet to come.However, while there is clear evidence of this commitment to theincorporation of Māori values, what is lacking is the necessary whakapapaconnection to the land that is the subject of this appeal. An added difficulty,noted by the Court in the Mt Messenger decision is that there is little or nocorroborating evidence to support the claim that there was historically, or is incontemporary times a recognised hapū or iwi collective known as Ngā Hapūo Poutama.11 Māori Custom and Values in New Zealand Law, NZ Law Commission at [130], as cited inNgāti Hokopū Ki Hokowhitu v Whakatane District Council (2002) 9 ELRNZ 111 at [39].12 At [50]; citing Ngāti Tama Claims Settlement Act 2003, Part 4, Part 5 and Schedules 1 to 14; andDirector-General of Conservation v Taranaki Regional Council [2019] EnvC 203 at [333].13 At [53]; citing Ngāti Hokopū, above n 11.14 At [60]-[61].15 At [75]-[76].(footnotes omitted)[12] In this Court, Poutama repeated the same arguments that they had advanced inthe Environment Court that their status as tangata whenua had been confirmed by theMāori Land Court, Ngāti Maniapoto, Ngāti Tama, and by the Waitangi Tribunal. TheMāori Land Court decision relied on was a judgment by Harvey J, which dismissedan application by the Gibbs Family Trust to establish a Māori Reservation over theirfamily farm, for lack of a customary connection to the land according to tikangaMāori.16[13] Poutama referred the Court to the Waitangi Tribunal Petroleum Report, and areport titled Te Mana Whatu Ahuru Volume VI. In the second report, the claim lodgedby Mr White and Ms Parani Gibbs (Wai 1747) was considered to be well-founded bythe Tribunal. However, the Environment Court stated:17Notwithstanding the finding that the Wai 1747 claim lodged by Mr White andMs Parani Gibbs was well founded, we are not persuaded that such limitedfindings as are recorded in this report amount to authoritative confirmationthat Ngā Hapū o Poutama are tangata whenua exercising mana whenua oversite Q18/77 and the area affected by the pipe removal works. The status ofPoutama/Te Ahuru as tangata whenua over these areas is directly in issue inthis case and we are required to make a fact-based evaluation on the evidencebefore us. To the extent that it is relevant, we see the change in the positiontaken by Mr White in the Wai 529 claim, the Wai 1747 claim and now in theevidence before us as more indicative of a contemporary political divisionbetween Mr White and his Ngāti Tama whanaunga, than as evidence of adistinctive iwi or hapū collective known as Poutama or Ngā Hapū o Poutama.It appears to us that the emergence of Poutama or Ngā Hapū o Poutama is arelatively recent development and we agree with the evidence of Mr GregWhite on behalf of Ngāti Tama that Poutama lacks the characteristics of atraditional iwi or hapū.(footnotes omitted)[14] Finally, the Court considered that Mr Gibbs' claim that he has a grandchildburied in the vicinity of the area of the proposed works "inherently implausible",placing heavy emphasis on Mr Gibbs' refusal at hearing to conclusively identify thelocation of the supposed site.18 It therefore concluded that Poutama/Te Ahuru are not16 Gibbs v Te Runanga o Ngāti Tama [2011] 274 AOT MB 47 (MLC) at [144].17 At [99].18 At [110].tangata whenua or otherwise a directly affected person for the purposes of s 58,concluding also that the application for the Authority was not deficient in any way.19Procedural history/grounds of appeal[15] Poutama's Notice of Appeal was filed by Mr White on 12 November 2021.That document lacks clarity, runs to ten pages, and alleges a significant number oferrors made by the Court. In a minute of 13 April 2022, Gwyn J made timetabledirections requiring Poutama to "file and serve re-pleaded points on appeal, limited toquestions of law and clearly and succinctly stating the issues on appeal, on or before9 May 2022".20[16] On 15 May 2022, Mr White filed a document titled 'Points on Appeal'. Thisdocument contained exactly the same defects as the Notice of Appeal, which Gwyn Jdirected to be repleaded. It runs to 18 pages and alleges 28 separate grounds of appeal,many of which clearly challenge factual findings.21 Poutama would appear to havesimply disregarded the direction made by Gwyn J. In these circumstances, becausethe right of appeal is limited to questions of law, the most efficient way of addressingthe appeal is to ask the question: did the Court err in law?Positions of the partiesPoutama[17] Mr White's written submissions which were spoken to at the hearing byMs Gibbs, did not develop or elaborate on the material contained in the documententitled 'Points of Appeal', and I do not propose to repeat them here. I have listed ina schedule to this decision the 28 grounds of appeal, each with a brief summary ofreasons for my conclusion that they do not provide the basis for a successful appeal.Broadly, Poutama's position is that the Court erred in finding that Poutama is nottangata whenua, and made a number of errors of law in coming to that conclusion,namely that the Court:19 At [112].20 Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga (Minute of Gwyn J)HC Wellington CIV-2021-443-61, 13 April 2022 at [16(a)].21 These are listed in Schedule One.(a) failed to give effect to or even consider the Ngāti Rahiri v NZ HistoricPlaces Trust [2013] NZHC 2746 and wrongly made a mana whenuadetermination;(b) wrongly applied Resource Management Act 1991 (RMA) case law;(c) wrongly applied the definition of 'tangata whenua';(d) failed to apply s 4 of the Act to Poutama;(e) erred in failing to give effect to, apply, or even consider a Native LandCourt decision or Gibbs v Te Rūnanga o Ngāti Tama [2011] 274 AoteaMB 47 (MLC);(f) erred in finding that it would be wrong in principle to add non-tangatawhenua to the conditions in the Authority;(g) erred in making a decision contrary to the principles and purpose of theAct; and(h) wrongly applied Ngāti Hokopū.HNZPT[18] Counsel for HNZPT, Ms Morrison-Shaw, submits that the Environment Courtdid not err. She says that the Ngāti Rahiri decision is irrelevant given that it related toa different issue, being the primacy of Ngāti Rahiri's rights in respect of the land inissue. She says that the Court did not err in applying RMA case law.[19] Ms Morrison-Shaw submits that Poutama's allegations in respect of the Court'sfindings as to their status are not matters of law, and fall outside the scope of an appealunder s 299 of the RMA 1991. She says that there was substantial evidence supportingthe finding that Poutama is not tangata whenua, and that the weight to be given to thatevidence was a matter for the Court. However, if the grounds are available, shesubmits that the Court did not err in law, as it correctly applied the approach set out inNgāti Hokopū.[20] Ms Morrison-Shaw says that the Waitangi Tribunal reports do not supportPoutama's position, as the Tribunal did not make the findings alleged by Poutama.She submits that neither does s 4 apply to Poutama, as Poutama has no ancestralconnection to the area, which also means that the Court did not err by failing to accept'Poutama tikanga'.[21] She says that the Native Land Court decision and Māori Land Court decisionwere not relevant to the issue before the Court. Poutama was not a party to eitherdecision, and they addressed different issues, namely:(a) the Native Land Court decision concerned Ngāti Maniapoto andNgāti Tama's relative rights to land in Taranaki pursuant to the NativeLands Act 1865;22 and(b) the Māori Land Court decision related to the Gibbs' attempt to havetheir family farm declared a Māori reservation pursuant to the Te TureWhenua Māori Act 1993, and did not concern whether or not Poutamawere tangata whenua.23[22] Ms Morrison-Shaw submits that Poutama have not been able to show that therewas no evidence to support the Court's conclusion or that it was one that no reasonableCourt could have reached.FGL[23] Counsel for FGL, Mr Matheson, submits that the Authority does not authorisework on land owned by the Gibbs family, but rather only authorises works on theCouncil's paper road. The application for the Authority was considered necessary ona precautionary basis given the penalties that apply upon the destruction of a known22 (Interlocutory) Judgment on the Mohakatino Parininihi Block, Native Land Court, 15 June 1882Fenton Chief Judge; and (Final) Judgment on the Mokau Mohakatino Block, Native Land Court,20 June 1882 Fenton Chief Judge.23 Gibbs, above n 16.archaeological site. The Authority was granted to cover the unlikely risk ofarchaeological material being encountered during the pipe removal.[24] As to Poutama's assertion that there is another waahi tapu/archaeological sitein the vicinity of the proposed works, Mr Matheson submits that there was no evidenceof this. He says the Tribunal reports do not assist Poutama, as the passage in questionin the Petroleum Report was "summarising Poutama's submissions to the Tribunal (asopposed to being findings by the Tribunal)." He says that the Court made a reasonablefactual finding based on the lack of evidence before it, which is unable to bechallenged in an appeal of this nature.[25] Finally, Mr Matheson submits that the Court determined all material matters inaccordance with the correct statutory criteria.Approach to appeal[26] The approach to an appeal from a decision of the Environment Court wasrecently accurately summarised by Isac J.24 Appeals to the High Court against adecision of the Environment Court are only available on a matter of law. An error oflaw will have occurred where the Court has:25(a) applied a wrong legal test;(b) taken into account irrelevant matters;(c) failed to take into account relevant matters; or(d) come to a conclusion without evidence or to a conclusion it could nothave reasonably come.24 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2022] NZHC 629.25 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[27]; Estate Homes Ltdv Waitakere City Council [2006] 2 NZLR 619 (CA) at [198]; Tauranga Environmental ProtectionSociety Inc v Tauranga City Council [2021] NZHC 1201, [2021] NZRMA 492 at [60]; andRedmond Retail Ltd v Ashburton District Council [2021] NZHC 2887 at [38]–[39].[27] Any error of law must materially affect the result of the court's decision beforeit would be appropriate for the appellate court to grant relief.26 Materiality is a matterof judgment for the appeal court rather than a question of proof to a particularstandard.27[28] Many of Poutama's arguments on appeal fail on this approach, as they relateto disputed matters of fact, rather than errors of law, and cannot be challenged on anappeal under s 299 of the RMA 1991.Analysis[29] In short, this appeal is wholly misconceived and cannot succeed. I now set outmy reasons for this conclusion.[30] Firstly, the issue in the Environment Court was described by the Courtsuccinctly. It was in simple terms, whether Poutama had the status to bring an appealin the terms of s 58 of the Act. Contrary to Poutama's assertion that the EnvironmentCourt 'granted' the Authority, that is not the case. HNZPT granted the Authority. TheAct provides a mechanism by which parties who are 'directly affected' by the grant ofan authority, can appeal against that. Such persons are:28(a) a person with a proprietorial interest in the land;(b) the applicant for the authority;(c) tangata whenua who are linked to the site through their ancestry; or(d) other persons without a proprietorial interest in the land, such aschildren and grandchildren being directly affected by a proposal to diga up a grandparent's grave.26 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153;Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [52]-[54].27 Manos v Waitakere City Council [1996] NZRMA 145 (CA) at 148, as cited in Auckland Councilv Cabra Rural Developments Ltd [2019] NZHC 1892, (2019) 21 ELRNZ 185 at [75].28 King v Heritage New Zealand Pouhere Taonga [2018] NZENVC 214 at [40] citing Campaign fora Better City v New Zealand Historic Places Trust [2004] NZRMA493 (HC).[31] As such, it was therefore necessary for the Court to consider whether Poutamaare tangata whenua, or whether they were otherwise directly affected. I do notconsider that entering into that assessment amounted to an error of law, and nor didthe Court incorrectly apply the definition of tangata whenua in the Act, basing theirconclusion on evidence from "both historical and contemporary times.29[32] The Court correctly applied the approach set out in Ngāti Hokopū.30 Nor wasthe case of Ngāti Rahiri relevant, as it concerned two groups who were both acceptedto be tangata whenua, contesting the relative primacy of their interests. The presentcase concerns whether Poutama are tangata whenua at all. That is a different question,and one which the Court was obliged to determine on the evidence before it. TheCourt was not required to enter into that same consideration in respect of Ngāti Tamaor Ngāti Maniapoto, given that it was not those hapū that sought to appeal againstHNZPT's decision. Poutama did that. Ngāti Tama and Ngāti Maniapoto's status astangata whenua was not in issue, and the Court was entitled to consider their views indetermining whether or not Poutama has tangata whenua status.[33] I am not satisfied that the Court erred in citing Resource Management case law.The passage that Mr White and Ms Gibbs cite in favour of that alleged error is fromNgāti Rahiri.31 Through reference to that passage, Poutama appears to be alleging thatthe Court had no jurisdiction to determine whether Poutama are tangata whenuabecause:32The [Historic Places Act 1991] does not require the [New Zealand HistoricPlaces Trust] to assess the relationships of Maori with their ancestral lands soas to determine and accord precedence between claimed interests.[34] Regardless of the fact that Ngāti Rahiri was decided pursuant to the previouslegislation, that statement does not assist Poutama at all. Again, the issue in theEnvironment Court was not a conflict between two Māori parties as to the relativeprimacies of their interests, but whether Poutama are tangata whenua (in terms of the29 At [60].30 Ngāti Hokopū, above n 11.31 Ngāti Rahiri v NZ Historic Places Trust [2013] NZHC 2746 at [35].32 At [35]; the Historic Places Act 1991, and the New Zealand Historic Places Trust were thepredecessors to the Heritage New Zealand Pouhere Taonga Act 2014 and Heritage New ZealandPouhere Taonga.Act) at all. Poutama's submission presupposes that Poutama are tangata whenua,which they are clearly not. There was ample ground for the Court's conclusion(recorded at [11] above) that the Te Ahuru hapū did not have a whakapapa connectionwith the land concerned. That included the concession by Poutama's witnesses to thateffect in the evidence before the Court. There was also ample evidence to support theCourt's conclusion (set out at [14] above) that the entity now referred to as Ngā Hapūo Poutama is a relatively recent development that lacks the characteristics of atraditional iwi or hapū. One of the most startling differences between Ngā Hapū oPoutama and traditional hapū is the appellant's assertion that Pākehā, or Māori whowhakapapa to another iwi in a different part of the country and who have nowhakapapa connection to the land in question, can somehow become tangata whenuain respect of this land by joining the hapū. That proposition is contrary to the mostfundamental requirements of tikanga.[35] In the recent case of Ellis v The King,33 Glazebrook J, who delivered theleading judgment referred to and adopted the conclusion of the two pukenga, Sir HiriniMoko Mead and Sir Pou Temara, who had been engaged to provide advice on tikanga.That advice recorded the critical requirements of tikanga for the establishment ofmana. At [131], the decision provides:Mana tuku ihu: this is mana inherited from ancestors. Under tikanga,everyone is born with mana by virtue of having a whakapapa (genealogy) andbeing born into a collective whether that be a whānau (family), hapū (sub-tribe) or iwi (tribe) [36] Poutama's assertion that Pākehā and others who lack whakapapa cannonetheless acquire mana whenua is inconsistent with this fundamental proposition.[37] It is common ground that the work that is the subject of the Authority is onlyto be undertaken on the paper road owned by the New Plymouth District Council. TheAuthority does not allow works to be undertaken elsewhere, and exists solely for thepurpose of managing the risk that the known archaeological site located some distancefrom the paper road may be impacted by work on the paper road. Neither HNZPT northe Court granted an authority to carry out works on land owned by the Gibbs Family33 Ellis v The King [2022] NZSC 114.Trust. The Court was entitled to find that, as Poutama does not have a proprietorialinterest in the land, and are not tangata whenua, that they were not directly affected bythe grant of the Authority.[38] Poutama alleges that the Environment Court failed to give effect to a decisionof the Native Land Court from 1882. The judgment shows that the Court consideredall of the evidence that was before it.34 The weight accorded to that evidence was amatter for the Environment Court, and is not to be disturbed on appeal unless thefinding was inherently unreasonable. In any event, the Native Land Court decisioninvolved Ngāti Maniapoto and Ngāti Tama and concerned their relative rights to anarea of land called Poutama in Taranaki, pursuant to the Native Lands Act 1865. Thatdecision does not show that Poutama Kaitiaki Charitable Trust are tangata whenua.Nor did it prohibit the Court from enquiring into whether Poutama are tangata whenua.[39] The same can be said for Judge Harvey's decision in the Māori Land Court.35Judge Harvey's decision addressed whether the Gibbs family could turn their farm intoa Māori reservation. The application was ultimately unsuccessful because the Gibbsfamily could not show an ancestral connection to the land in terms of tikanga Māori,which requires whakapapa.36 It is not evidence which establishes that Poutama istangata whenua.[40] Accordingly, the Court did not err in failing to apply s 4 of the Act to Poutama,or in incorrectly applying the purposes and principles of the Act. Section 4(d) relatesto "the relationship of Māori and their culture and traditions with their ancestral lands,water, sites, wāhi tūpuna, wāhi tapu, and other taonga". As Poutama is not tangatawhenua, s 4(d) has no application to them. The other aspects of s 4 were adequatelygiven force in the application for the Authority, the decision to grant the Authority, andthe Environment Court's dismissal of Poutama's appeal. Specifically, the inclusion ofNgāti Tama in the conditions of the Authority, and the precautionary approach takenby FGL, are both factors which give effect to the purpose and principles of the Act.34 At [60].35 Above n 16.36 Above n 16, at [157].[41] Poutama submitted that:The Court erred in finding that it would be wrong in principle to add non-tangata whenua to the conditions in the authority, when the conditionsspecifically contain the disclaimer "This is not a statement of mana whenuastatus".[42] There are some issues with this statement. It appears to some extent, to acceptthat Poutama are not tangata whenua, but should nonetheless be afforded theprotections accorded to tangata whenua under the Act, because the Authority itselfdoes not purport to determine who is mana whenua. The Court's decision was thatPoutama are not tangata whenua, and so to afford them protection through inclusionin the conditions of the Authority would in fact, be wrong in principle – as it wouldafford them a right to which they are not entitled. There is no error in that conclusion.[43] In any case, Poutama is clearly attempting to relitigate a matter that has alreadybeen determined twice by this Court, and the Environment Court.37 On that basisalone, I am satisfied that the appeal should be dismissed as an abuse of process.Factual allegations[44] As noted, appeals pursuant to s 299 of the RMA 1991 are only available inrespect of a matter of law. The following grounds of appeal alleged by Poutama arefactual findings, which were available to the Court on the evidence before it. Poutamahave not shown that these findings were of a nature that 'no reasonable Court couldhave reached" them.38 These grounds are that the Court:(a) failed "to require a new application for an Authority to modify ordestroy an unrecorded archaeological site";37 Poutama Kaitiaki Charitable Trust and D and T Pascoe v Taranaki Regional Council and Ors[2020] NZHC 3159 at [168]; Director-General of Conservation v Taranaki Regional Council[2019] NZEnvC 203 at [467]; Poutama Kaitiaki Charitable Trust v Taranaki Regional Council[2022] NZHC 629; and Poutama Kaitiaki Charitable Trust v Heritage New Zealand PouhereTaonga [2021] NZEnvC 165.38 Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 (SC), at [26].(b) failed to address that in the past Ngāti Maniapoto and Ngāti Tama hadrecognised Ngā Hapū o Poutama as tangata whenua in respect of thearea affected by the proposed works;(c) wrongly found that Mr White's position had changed in respect of hisrelationship with Ngāti Tama and challenged Poutama tikanga;(d) wrongly found that "Ngā Hapū o Poutama, including Ngāti Wai ki TeKawau and Te Ahuru ki Tongapōrutu, are not otherwise directlyaffected for the purposes of s 58";(e) erred in "finding that in relation to Q18/77 Ngāti Maniapotoacknowledge Ngāti Tama as the iwi holding mana whenua";(f) erred in "finding that the conditions provide for Ngāti Tama when theconditions only provide for Ngāti Tama ki Pukearuhe (TRoNT),[a small subsection of Ngāti Tama]";(g) erred in failing "to determine the appeal on actual or potential damageto interests directly affected";(h) wrongly "overlooked, dismissed or set aside any cultural effects andoccupation including sites of interest to Poutama";(i) erred in "Misrepresenting the make-up and whakapapa of Te Ahuru kiTongaporutu"; and(j) erred in finding that "Ngā Hapū o Poutama, including Ngāti Wai ki TeKawau and Te Ahuru ki Tongapōrutu, are not otherwise directlyaffected for the purposes of s 58 when the Court accepted the proposedworks are "within an area Poutama recognises as part of the rohe of theTe Ahuru hapū" and the Waitangi Tribunal Report on the Managementof the Petroleum Resource confirms that the area of the proposed worksis a place where ancestral bones lie and is, therefore, a waahi tapu andof particular concern to Ngā Hapū o Poutama".[45] These factual findings cannot be challenged in an appeal limited to matters oflaw.Result[46] The Environment Court made no error of law. The appeal is dismissed.[47] I invite the parties to settle the question of costs between themselves but, in theabsence of agreement the respondent and s 301 party are to file and serve memorandaof no greater than five pages in length within 14 days of the date of this decision, withthe appellant to file and serve submissions in reply, of no greater than five pages inlength, no later than 14 days after receipt of the respondent and s 301 party'ssubmissions. I will then determine the matter on the papers.Churchman JSolicitors:Atkins Holm Majurey, Auckland for RespondentGovett Quilliam, New Plymouth for FGL, a s 301 Resource Management Act partycc: M GibbsV N Morrison-ShawB J MathesonSCHEDULE ONEGround of appeal AnswerThe Court "Wrongly granted an Authority tomodify or destroy recorded archaeological siteQ18/77 when Q18/77 is located outside theproposed area of works".The Court did not grant the Authority. TheAuthority was granted by Heritage NZ. It iscommon ground that the work is only to beundertaken on the paper road owned by NPDC.The Authority does not allow works to beundertaken elsewhere, and exists solely for thepurpose of managing the risk that thearchaeological site may be impacted by workon the paper road. Nor is the land in questionowned by Poutama. There is no identifiableerror of law under this ground.The Court failed "to require a new applicationfor an Authority to modify or destroy anunrecorded archaeological site".This ground attempts to challenge a factualfinding of the Environment Court. The Courtconsidered that it was "inherently implausiblethat Mr Gibbs, his wife or his whānau wouldchoose to bury a family member within thecorridor of the redundant pipe" (at [110]). It isnot a ground of appeal on a matter of law and istherefore unable to be enquired into further.The Court wrongly stated the focus of theappeal as "recognition of [Poutama's] claim tostatus as tangata whenua" rather than "who arethe Māori/tangata whenua/hapū that have alegitimate interest in the area".See above at [29]-[43].The Court "Failed to give effect to or evenconsider the Ngāti Rahiri v NZ Historic PlacesTrust [2013] NZHC 2746" and wrongly made"a mana whenua determination".See above at [29]-[43].The Court wrongly applied ResourceManagement Act 1991 case law to the HeritageAct.See above at [29]-[43].The Court wrongly made "a mana whenuadetermination when the Heritage NZ statutoryassessment for the application had alreadyconfirmed Ngā Hapū o Poutama are tangatawhenua and that the Gibbs whānau have anenacted right to be consulted over thisapplication within the provisions of section46(2)(h) of the Act as an affected party".See above at [29]-[43].The Court wrongly applied the definition oftangata whenua in the Heritage Act, by focusingon 'who holds tangata whenua status over thesite' instead of who has held tangata whenuastatus at any time.See above at [29]-[43].The Court failed to address that in the pastNgāti Maniapoto and Ngāti Tama hadrecognised Ngā Hapū o Poutama as tangatawhenua in respect of the area affected by theproposed works.The Court correctly applied the approach setout in Ngāti Hokopū in relation to this matter.Its finding was a factual one. Appeals under s299 of the Resource Management Act 1991 canonly be on a matter of law. The Court wasentitled to make its own determination on theevidence before it. No error of law has beenalleged in this ground of appeal.The Court wrongly found that Mr White'sposition had changed in respect of hisrelationship with Ngāti Tama and challengedPoutama tikanga.This is was a factual finding. Appeals under s299 of the Resource Management Act 1991 canonly be on a matter of law. The Court wasentitled to make its own determination on theevidence before it. No error of law has beenalleged in this ground of appeal.The Court wrongly found that "Ngā Hapū oPoutama, including Ngāti Wai ki Te Kawau andTe Ahuru ki Tongapōrutu, are not otherwisedirectly affected for the purposes of s 58".This is was a factual finding. Appeals under s299 of the Resource Management Act 1991 canonly be on a matter of law. The Court wasentitled to make its own determination on theevidence before it. No error of law has beenalleged in this ground of appeal. See above at[29]-[43].The Court erred in failing to apply s 4 of theHeritage Act to Ngā Hapū o Poutama, includingNgāti Wai ki Te Kawau and Te Ahuru kiTongapōrutu.Section 4 of the Heritage Act cannot apply toPoutama as they have not established that theyare tangata whenua. See above at [29]-[43].The Court erred in failing to give effect to,apply, or even consider the 1882 Native LandCourt decision.The judgment shows that the Court consideredall of the evidence that was before it (at [60]).Nevertheless, the Native Land Court decisioninvolved Ngāti Maniapoto and Ngāti Tama andconcerned their relative rights to an area of landcalled Poutama in Taranaki pursuant to theNative Lands Act 1865. That decision does notshow that Poutama Kaitiaki Charitable Trust aretangata whenua.The Court erred in stating that "the issue as towhether or not Poutama were tangata whenuawas not before Judge Harvey".The Court did not err in making this statement.Poutama were not a party to that decision, andwhether or not they were tangata whenua wasnot an issue for determination. Judge Harvey'sdecision addressed whether the Gibbs familycould turn their farm into a Māori reservation.The Court erred in not considering that theprinciples of res judicata and issue estoppelapply in respect of the 1882 Native Land Courtdecision and Gibbs v Te Rūnanga o Ngāti Tama[2011] 274 Aotea MB 47 (MLC).Neither the 1882 Native Land Court decision orGibbs v Te Rūnanga o Ngāti Tama prohibitedthe Court from inquiring into whether Poutamais tangata whenua. The Court was required toconsider whether Poutama were directlyaffected by the grant of the Authority. Thatinvolved a consideration of whether Poutamaare tangata whenua.Judge Harvey's decision addressed whether theGibbs family could turn their farm into a Māorireservation. The Native Land Court decisioninvolved Ngāti Maniapoto and Ngāti Tama, andconcerned their relative rights to an area of landcalled Poutama in Taranaki pursuant to theNative Lands Act 1865. Neither of thosedecisions establish that Poutama KaitiakiCharitable Trust are tangata whenua.See above at [29]-[43].The Court erred in "Failing to apply authorities,findings, rules, and evidence, including the1840 rule, evenly and consistently, insteadlimiting cultural rights to Crown settlementarrangements."Poutama's submissions did not develop thisground. In the absence of further particulars, theCourt is unable to inquire into it. Nevertheless,the Environment Court did not fail to applyrelevant authorities or use the evidence relatingto Crown settlement arrangements as the soledeterminate in considering whether a group hastangata whenua status. It rightly identified thatsuch status derives from whakapapa andtikanga Māori.The Court erred in "finding that in relation toQ18/77 Ngāti Maniapoto acknowledge NgātiTama as the iwi holding mana whenua".Poutama's submissions did not develop thisground. In the absence of further particulars, theCourt is unable to inquire into it. Nevertheless,this was a factual finding reasonably availableto the Court on the evidence before them. It isnot able to be challenged in an appeal of thisnature.The Court erred in "finding that the conditionsprovide for Ngāti Tama when the conditionsonly provide for Ngāti Tama ki Pukearuhe(TRoNT), [a small subsection of Ngāti Tama]".Poutama's submissions did not develop thisground. In the absence of further particulars, theCourt is unable to inquire into it. Nevertheless,this was a factual finding reasonably availableto the Court on the evidence before them. It isnot able to be challenged in an appeal of thisnature.The Court erred in "endorsing that the NgātiTama Claims Settlement Act is a form of legaland political recognition of their mana whenuaand kaitiakitanga, and means anything otherthan the Settlement Act itself".Poutama's submissions did not develop thisground. In the absence of further particulars,the Court is unable to inquire into it.Nevertheless, the Environment Court did notuse the evidence relating to Crown settlementarrangements as the sole determinant inconsidering whether a group has tangatawhenua status. It rightly identified that suchstatus derives from whakapapa and tikangaMāori. It also rightly considered that alegislative settlement is evidence of a group'sstatus as tangata whenua.The Court erred in "Failing to address thecontradictions, motives, bias, agenda, collateralchallenge against Ngā Hapū o Poutama fromFirst Gas and Heritage NZ"No factual basis was or has been provided byPoutama for this allegation. No identifiableerror of law has been alleged. The Court istherefore unable to enquire into it further.The Court erred in "Failing to accept Poutamatikanga, customary authority, evidence, [and]context"Given the finding that Poutama was not tangatawhenua (which was a finding available to theCourt on the evidence before it), the Court wasnot required to have regard to Poutama tikanga.Failure to do so was not an error of law.The Court erred in failing "to determine theappeal on actual or potential damage to interestsdirectly affected"The Court concluded that Poutama's interestswere not directly affected. This was a factualfinding reasonably available to the Court on theevidence before them. It is not able to bechallenged in an appeal of this nature.The Court "Wrongly overlooked, dismissed orset aside any cultural effects and occupationincluding sites of interest to Poutama"The Court concluded that Poutama's interestswere not directly affected. This was a factualfinding reasonably available to the Court on theevidence before them. It is not able to bechallenged in an appeal of this nature. Therewas no error of law in that decision.The Court erred in finding that it would bewrong in principle to add non-tangata whenuato the conditions in the authority, when theconditions specifically contain the disclaimer"This is not a statement of mana whenuastatus".See above at [29]–[43].The Court erred in confounding historic andcontemporary identities, and layers of interestover timePoutama's submissions did not develop thisground. There is no basis on which to considerthat the Environment Court made an error oflaw on the wording of this ground.The Court erred in "Misrepresenting the make-up and whakapapa of Te Ahuru ki Tongaporutu"Poutama's submissions did not develop thisground. There is no basis on which to considerthat the Environment Court made an error oflaw on the wording of this ground.Nevertheless, this was a factual findingreasonably available to the Court on theevidence before them. It is not able to bechallenged in an appeal of this nature.The Court erred in "Wrongly issuing a decisioncontrary to the principles and purpose of theAct"See above at [29]–[43].The Court erred in "failing to properly andevenly apply the rule of reason approach as setout in Ngāti Hokopu, including whether there isexternal evidence, and whether that externalevidence has potentially changed"See above at [29]–[43]. The Court correctlyapplied the approach set out in Ngāti Hokopū inrelation to this matter.The Court erred in finding that "Ngā Hapū oPoutama, including Ngāti Wai ki Te Kawau andTe Ahuru ki Tongapōrutu, are not otherwisedirectly affected for the purposes of s 58 whenThis is was a factual finding. Appeals under s299 of the Resource Management Act 1991 canonly be on a matter of law. The Court wasentitled to make its own determination on thethe Court accepted the proposed works are"within an area Poutama recognises as part ofthe rohe of the Te Ahuru hapū" and the WaitangiTribunal Report on the Management of thePetroleum Resource confirms that the area ofthe proposed works is a place where ancestralbones lie and is, therefore, a waahi tapu and ofparticular concern to Ngā Hapū o Poutama"evidence before it. No error of law has beenalleged in this ground of appeal. See above at[29]–[43].