POUTAMA KAITIAKI CHARITABLE TRUST AND D & T PASCOE v TARANAKI REGIONAL COUNCIL [2021] NZSC 87

POUTAMA KAITIAKI CHARITABLE TRUST AND D & T PASCOE v TARANAKI REGIONAL COUNCIL[2021] NZSC 87 [15 July 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 31/2021[2021] NZSC 87BETWEEN POUTAMA KAITIAKI CHARITABLETRUST AND D & T PASCOEApplicantsAND TARANAKI REGIONAL COUNCILFirst RespondentNEW PLYMOUTH DISTRICT COUNCILSecond RespondentNEW ZEALAND TRANSPORT AGENCYThird RespondentCourt: William Young, Glazebrook and O'Regan JJCounsel: S J Grey for ApplicantsJ G A Winchester and H P Harwood for First and SecondRespondentsP T Beverley, D G Allen and T J Ryan for Third RespondentP F Majurey and V N Morrison-Shaw for Te Rūnanga o NgātiTama Trust as Interested PartyJudgment: 15 July 2021JUDGMENT OF THE COURTA The application for an extension of time to apply for leave toappeal is granted.B The application for leave to appeal is dismissed.C The applicants must pay three sets of costs: $500 jointly tothe first and second respondents, $2,500 to the thirdrespondent and $1,500 to the interested party.____________________________________________________________________REASONS[1] This application for leave to appeal concerns an interim decision of theEnvironment Court as to the re-routing of State Highway 3 through the Mangapēpekeforest and wetlands near Mt Messenger and north of New Plymouth.1 An appealagainst that decision was dismissed by the High Court,2 and the applicants, Mr andMrs Pascoe (whose land is affected by the proposal) and Poutama Kaitiaki CharitableTrust, seek leave to appeal to this Court from the High Court decision.[2] In the course of its judgment, the Environment Court held that Ngāti Tama aretangata whenua exercising mana whenua and kaitiakitanga over the project area.3 Bycontrast, it held that these terms as used in the Resource Management Act 1991 do notapply to Poutama or Mr and Mrs Pascoe in respect of the land.4 Mr Pascoe is notMāori, and although Mrs Pascoe is, there was no reliable evidence before the Courtlinking her Māori ancestry to the Pascoe land.5 Likewise, the Court considered thatthere was no reliable evidence before it that the Poutama collective was an iwi or iwiauthority exercising mana whenua in the project area.6 It therefore concluded thatthere was no relevant error in the approach taken by the respondents.7[3] On appeal, the High Court found that these conclusions were primarily of factand for this reason, not susceptible to direct challenge on appeal confined to points oflaw and that there were no associated errors of law in the way the issues wereaddressed by the Environment Court.81 Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203(Judges Dwyer, Doogan and Dickey and Commissioners Bunting and Bartlett) [EnvC judgment].2 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159, (2020) 22ELRNZ 202 (Grice J) [HC judgment].3 EnvC judgment, above n 1, at [333]. This was relevant by reason of ss 6(e) and 7(a) of theResource Management Act 1991.4 At [339].5 At [319] and [330].6 At [350].7 At [358], [463]–[464] and [467].8 HC judgment, above n 2, at [252]–[254]. An appeal of an Environment Court decision to theHigh Court may only be on a question of law: Resource Management Act, s 299.[4] The application for leave to appeal is out of time. The delay in seeking leaveseems to have been because the applicants initially pursued a recall application in theHigh Court.9[5] Waka Kotahi | New Zealand Transport Agency (the third respondent), insubmissions adopted by Taranaki Regional Council and New Plymouth DistrictCouncil (the first and second respondents), and Te Rūnanga o Ngāti Tama Trust (aninterested party) oppose the application for leave to appeal. Their position is that theapplicants are seeking to relitigate findings of fact and that, in any event:(a) the usual criteria for leave are not satisfied;10 and(b) the criteria for granting leave for a direct appeal from the High Courtare not made out.11[6] They also oppose the extension of time which is sought.[7] As the High Court held and the respondents and interested party maintain, thefindings of the Environment Court are largely factual.[8] Even if the Environment Court had applied an incorrect understanding of theprinciple of mana whenua (a proposition the applicants do not advance in expressterms), the factual findings of that Court leave no room for argument that any sucherror could have been material. The Court found that there was in fact no evidence ofa Poutama ancestral connection to the land in question.12 This was a finding justifiedon the evidence. The Court recorded its preference for the report commissioned byTe Rūnanga o Ngāti Tama Trust over the report commissioned by Poutama on thiscentral issue.139 Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2021] NZHC 326 (Grice J).10 Senior Courts Act 2016, s 74.11 Senior Courts Act, s 75.12 Likewise, as noted above at [2], it found there was insufficient evidence of an ancestral connectionbetween the Pascoes and the land in question.13 At [324]–[325].[9] The same factual finding meets the claimed error in relation to s 6(e) of theResource Management Act, which requires decision makers to recognise and providefor the relationship of Māori and their culture and traditions with their ancestral lands.Insufficient evidence of an ancestral connection means that the Pascoes and Poutamacould not have a relevant interest under s 6(e), regardless of whether that sectionapplies to iwi, hapū or Māori more generally.[10] We therefore see no substantial prospect of the High Court decision on theseissues being reversed. This is sufficient to dispose of the application for leave toappeal.14[11] For the sake of completeness, we note that there is nothing in the proposedappeal which comes close to satisfying the requirements of s 75 of the Senior CourtsAct 2016 for a leapfrog appeal direct to this Court from a High Court judgment.[12] Against the conclusions just reached, nothing of significance turns on the fateof the application for an extension of time. The reasons for the delay – to allow timefor an application to the High Court to recall its judgment – are not particularlycompelling. That said, given the limited period of delay and the lack of any prejudiceassociated with it, we grant an extension of time. We do, however, dismiss theapplication for leave to appeal.[13] The respondents and interested party are entitled to costs. The applicants mustpay three sets of costs: $500 jointly to the first and second respondents, $2,500 to thethird respondent and $1,500 to the interested party.Solicitors:Simpson Grierson, Wellington for First and Second RespondentsBuddle Findlay, Wellington for Third RespondentAtkins Holm Majurey, Auckland for Te Rūnanga o Ngāti Tama Trust14 Prime Commercial Ltd v Wool Board Disestablishment Co Ltd [2007] NZSC 9, (2007) 18 PRNZ424 at [2]; and Nicholls v Nicholls [2021] NZSC 8 at [13].