TE KOROWAI O NGARUAHINE TRUST v HIRINGA ENERGY LIMITED AND BALLANCE AGRI-NUTRIENTS LIMITED [2022] NZHC 2810

TE KOROWAI O NGARUAHINE TRUST v HIRINGA ENERGY LIMITED AND BALLANCE AGRI-NUTRIENTS LIMITED [2022] NZHC 2810 [31 October 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-000012[2022] NZHC 2810UNDER Clause 44 of Schedule 6 of the COVID-19Recover (Fast-Track Consenting) Act 2020(the Act).IN THE MATTER Of an appeal against the final decision of anExpert Consenting Panel under the Act toapprove resource consents for the KapuniGreen Hyrdogen Project.BETWEEN TE KOROWAI O NGARUAHINE TRUSTAppellantAND HIRINGA ENERGY LIMITED ANDBALLANCE AGRI-NUTRIENTSLIMITEDRespondents(Continued next page)Hearing: 16-17 May 2022Appearances: T H Bennion, L L Black for the AppellantL P Wallace, C J Haden for the First RespondentC M Hockly for the First Interested PartyD A C Bullock, J L Beverwijk for the Second Interested PartyJudgment: 31 October 2022JUDGMENT OF GRICE JAND ŌKAHU-INUAWAI ME ĒTEHI ATUHAPŪ, NGĀTI TU HAPŪ, NGĀTITAMAAHUROA-TITAHI HAPŪ, NGĀTIHAUA HAPŪ AND KANIHI UMUTAHIME ĒTEHI ATU HAPŪFirst Interested PartiesGREENPEACE AOTEAROAINCORPORATEDSecond Interested PartyTARANAKI MĀORI TRUST BOARDThird Interested PartyContentsAbbreviationsIntroduction [1]Grounds of appeal [13]New points raised on appeal [16]Principles on appeal [27]Statutory framework for resource consent applications under the FTCA [35]The Fast-track Consenting Act [36]The Expert Panel [53]First major issue — the Treaty and cultural issues [59]Treaty and cultural issues — background [60]Crown and Ngāruahine Treaty settlement [60]Various positions of iwi and hapū in respect of the Project [70]Te Korowai Cultural Impact Assessment (CIA) [80]Ngāti Tu Cultural Impact Assessment (CIA) [93]Treaty and cultural issues — the expert report [99]Iwi concerns with the Project [100]Assessment by the Panel of Māori and cultural values issues [111]Findings as to the impacts of the Project [130]Findings in relation to cultural issues [132]Conditions related to cultural issues [148]Treaty and cultural issues — the statutory framework [149]Treaty clauses [149]The legal framework [184]The Panel's report [194]Engagement with the relevant interests [194]Recognition of the principles of the Treaty [207]Explaining the balance struck [212]Treaty and cultural issues — analysis Error! Reference source not found.Reasons — striking the balance [243]Particular points on appeal [248]Failing to consider the cultural landscape of Ngāruahine as a whole [248]Failure to consider the precedential effect to be an adverse effect that could not bemitigated [255]Reasons were not required for determining a hearing was not required on anyissue [259]Delegation to local authority [267]Conclusion on cultural issues [271]Second major issue — environmental issues [275]Failing to consider the precedent effect of the proposal to be an adverse effectover the life of the project that could not be mitigated; and finding that a criticalreason for approving the project was 100 per cent transition to use of "greenhydrogen" for transport [276]Failure to consider the end use of urea and related environmental effects [294]Conclusion as to environmental issues [316]Summary [317]Conclusion [327]Costs [328]Attachment 1 — Marae and Area with Direct Line of SightAttachment 2 — Excerpt from Appendix 2 conditions (relating to culturalconditions)GeneralWind turbine characteristicsCulvertsLizard surveyArchaeologyCulturalCommunity consultationDecommissioning and site rehabilitationReviewAbbreviationsCOVID-19 Recovery (Fast-track Consenting) Act 2020 FTCACultural Impact Assessment CIACultural and Spiritual Values CSVEnvironmental Protection Agency EPAExclusive Economic Zone and ContinentalShelf (Environmental Effects) Act 2012 EEZ ActExpert Consenting Panel the PanelHiringa Energy Ltd HiringaNatural Features and Landscapes policy NFLNational Policy Statement Freshwater Management NPS-FMNational Policy Statement RenewableEnergy Generation NPS-REGNew Zealand Coastal Policy Statement NZCPSOutstanding Natural Features and Landscapes ONFLParininihi ki Waitōtara Incorporation Māori Trust PKWRelationship of Māori with Ancestral Lands, Water,Sites, Wāhi Tapu and other Taonga RELRegional Policy Statement RPSRecord of Understanding ROURegional Coastal Environment Plan RCEPResource Management Act 1991 RMAStream Health Monitoring Assessment Kit Test SHMAKSouth Taranaki District Council STDCTe Korowai o Ngāruahine Trust Te KorowaiIntroduction[1] The usual process for obtaining resource consent is under the ResourceManagement Act 1991 (the RMA). The COVID-19 Recovery (Fast-track Consenting)Act 2020 (the FTCA) was intended to provide a fast, simplified and shortened processfor decision-making on resource consents to urgently promote employment to supportNew Zealand's recovery from the economic and social impacts of COVID-19, whilecontinuing to promote the sustainable management of natural and physical resources.1The relevant consents the subject of this appeal were granted following a referral bythe Minister for the Environment (the Minister) under the FTCA and determined by afour-member Expert Consenting Panel (the Panel).2 A resource consent granted underthe FTCA is the same as if it were granted under the RMA.3[2] Under the FTCA, the public notifications and hearing process is replaced by astreamlined notice process and comments process. There is no requirement for an oralhearing. Certain parties are, however, required to be notified.[3] Of particular relevance to this appeal is that s 8 of the RMA, requiring personsexercising functions and powers under the RMA to "take into account" the principlesof te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty), is replaced by s 6 of theFTCA, which requires these persons to act in a manner that is "consistent with" theprinciples of the Treaty and Treaty settlements.[4] This is an appeal against the "fast-track" decision of a Panel approving withconditions resource consents for a "green" project to be undertaken by Hiringa EnergyLtd and Ballance Agri-Nutrients Ltd (collectively referred to as Hiringa).41 See s 4 of the COVID-19 Recovery (Fast-track Consenting) Act 2020 [the FTCA].2 Under s 16 of the FTCA, the Minister is the Minister for the Environment. Under s 21, theMinister, upon receiving an application for referral, is required to invite written comments from13 other Ministers, including those holding the portfolios of Local Government, Māori CrownRelations—Te Arawhiti, and Treaty of Waitangi Negotiations, as well as any other Ministersholding relevant portfolios.3 Section 12(2)(b).4 Record of decision of the Expert Consenting Panel under clause 37, schedule 6 of the COVID-19Recovery (Fast-track Consenting) Act 2020, concerning a green hydrogen hub in Kapuni, SouthTaranaki, 1 December 2021 [the Panel Report].[5] The project involves the development of a renewable ("green") hydrogen hubat Kapuni in South Taranaki. In simple terms, electricity is to be generated from fourlarge wind turbines to provide baseload power to the nearby Ballance Agri-NutrientsKapuni Ammonia-Urea Manufacturing Plant. The resulting hydrogen produced willinitially be used to produce ammonia and urea, before transitioning over a five-yearperiod to supply hydrogen fuel for commercial and heavy transport (the Project).[6] The scope of the Project is described in the consent application as to construct,install and operate a renewable hydrogen hub which will comprise: four wind turbinesand associated infrastructure; an electrolysis plant; hydrogen productioninfrastructure; hydrogen storage, loadout, and refuelling facilities; and undergroundelectricity cables and associated buildings and structures.5[7] In this case, the parties required to be notified included Te Korowai oNgāruahine Trust (Te Korowai), the mandated post-settlement governance entity andrepresentative body for Ngāruahine iwi, including the two hapū who have uncontestedmana whenua over the land on which the proposed Project is sited, namelyNgāti Manuhiakai and Ngāti Tu.[8] The Minister was satisfied the application met the purpose of the FTCA andreferred the application to the Panel accordingly. On 1 December 2021, the Panelreleased its decision in a report (the Report) approving the application and grantingconsents to the Project, subject to conditions, for a term of 35 years.[9] Te Korowai appeals the decision. Ngāti Tu is a party supporting the appeal.Greenpeace Aotearoa Inc (Greenpeace) was also a notified party and supports theappeal. While these three parties took carriage of the arguments. Other partiesappeared in support of the appellant.[10] The issues on appeal fall into two main areas: first, Treaty and cultural issues;and secondly, environmental issues.5 Hiringa Energy Ltd and Ballance Agri-Nutrients Ltd Resource Consent Application andAssessment of Environmental Effects: Kapuni Green Hydrogen Project (18 August 2021) at 29.[11] In relation to the Treaty and cultural issues, the focus is on the alleged failureby the Panel to properly take into account tikanga and cultural issues as well as theindividual positions of hapū and iwi and their issues of concern, and thus its failure toperform its functions in a manner "consistent with" the principles of the Treaty.[12] Greenpeace (which is an entity which must be notified of applications for areferred project under the FTCA)6 took primary carriage of the arguments in relationto environmental issues. It says that the Panel failed to properly assess theenvironmental effects, including down-stream effects, of the urea fertiliser producedand so ultimate emissions caused by livestock on the fertilised pasture. It also submitsthat the stated environmental benefits said to flow from the project based on thetransition over five years from use of the production of urea for fertiliser to theprovision of hydrogen fuel for transport may not be realised because the conditions inthe Report were inadequate in a number of respects.Grounds of appeal[13] Te Korowai brings its appeal on the grounds that the Panel made the followingerrors of law:(a) finding that the proposal was "entirely consistent" with pt 2 of theResource Management Act 1991, and in particular ss 6(e) and 7(a);(b) failing to consider the cultural landscape of Ngāruahine as a whole;(c) failing to consider the precedent effect of the proposal to be an adverseeffect over the life of the project that could not be mitigated;(d) concluding that the project has no impact on two cultural redressproperties;(e) determining that a hearing was not required on any issue without givingreasons; and6 Schedule 6 cl 6(o) of the FTCA.(f) finding that a critical reason for approving the project was 100 per centtransition to use of "green hydrogen" for transport.[14] The ground at (d) above was not pursued.7 I do not deal with that further.[15] The relief sought on appeal is the overturning of the grant of the consents.New points raised on appeal[16] The grounds above were expanded on in the Particularised Points on Appeal.Additional points were also raised in written submissions by the appellant andinterested parties. Hiringa by agreement was given further time to respond and fileextra submissions. Ms Wallace, for Hiringa, objects to additional questions of law andnew evidence raised by Greenpeace and Ngāti Tu since the appeal was filed and notcovered by the above grounds of appeal.[17] Ms Wallace said it was not procedurally appropriate, nor in the interests ofjustice, for Greenpeace and Ngāti Tu as interested parties to raise these additionalgrounds of appeal. She noted that these new matters had been raised three monthsafter the date the appeal was filed and less than two weeks before the respondents'submissions were due, with no prior notice having been given. They are:(a) the application of the wrong Treaty test;8(b) failing to properly take into account the environmental effects of theend users of the urea fertiliser produced by the Project;97 In the appellant's Particularised Points of Law on Appeal, dated 8 March 2022, a point of appealwas that the Panel did not assess any cultural impacts on the two cultural redress properties locatednear the Project site in reaching the conclusion (at [188] of the Panel Report, above n 4) that theywere not affected: at [19]. However, by the time the parties filed their written submissions,Te Korowai opted not to pursue this point on appeal.8 Section 8 of the Resource Management Act 1991 [the RMA] instead of s 6 of the FTCA.9 The urea fertiliser is produced by the Ballance plant and will use hydrogen and energy from theproject.(c) failing to take into account the environmental consequences of theProject failing to transition from producing urea fertiliser to hydrogenfuel, or that transition being delayed;(d) taking into account irrelevant considerations, being the benefits oftransition to hydrogen fuel production without that transition beingguaranteed or required to ever occur; and(e) unlawfully delegating decision-making relating to the transition to theSouth Taranaki District Council under the RMA.[18] Ms Wallace pointed to r 20.9(1)(c) of the High Court Rules 2016, whichrequires a notice of appeal to specify the grounds of appeal in sufficient detail to fullyinform the Court, or other parties to the appeal. Leave to amend a notice of appealmay be given at any time with the leave of the Judge. No such leave had been soughtor granted in this case.10[19] Additional parties to proceedings must keep within the scope of the appeal, infurtherance of the well-established policy that a person should not be able to changeor expand the scope of appeal by becoming a party.11 The addition of new points onappeal is a matter of discretion for the appellate court. The Court must ensure that theconduct of proceedings is procedurally fair.12 Courts tend to permit new points to beargued where they concern matters of law only and there is no material prejudice tothe other parties.13[20] The additional points raised effectively expand the grounds of appeal toinclude reference to s 6 of the FTCA, which is the replacement Treaty clause, and tocover points concerning the environment effects of the end product use and thetransition to use of the hydrogen for fuel transport.10 High Court Rules 2016, r 20.9(4).11 Robert Street Action Group Inc v Taupō District Council [2021] NZEnvC 129 at [23].12 McCollum v Thompson [2017] NZCA 269, [2017] NZAR 1106 at [52]–[54].13 See for example Foodstuffs (Auckland) Ltd v Commerce Commission [2002] UKPC 25, [2004] 1NZLR 145 at [9]. If an appellant succeeds only on a new point, this may justify a refusal to awardcosts: see for example Pioneer Insurance Co Ltd v White Heron Motor Lodge Ltd [2008] NZCA450, (2008) 19 PRNZ 286 at [57]–[58].[21] I deal first with the point at additional point (a) above concerning theapplication of 6 of the FTCA (the Treaty clause).[22] The original grounds of appeal would have required consideration of the s 6Treaty clause. The RMA provisions in s 6(e) (relationship of Māori and their cultureand traditions with their ancestral lands and taonga) and s 7(a) (having particularregard to kaitiakitanga) of the RMA, which are directly in play in this appeal, can onlybe considered in the context of the applicable Treaty clause. In addition, theParticularised Points on Appeal, dated 8 March 2022, also referred to the displacementof s 8 of the RMA by s 6 of the FTCA in a quote taken from the Panel's decision. Thegrounds of appeal alleged a general failure by the Panel to consider the culturallandscape of Ngāruahine as a whole. This would necessarily require the considerationof the Treaty clause and in particular the difference between the wording of s 6 ofFTCA and s 8 of the RMA. In my view, the grounds of appeal are sufficiently wideto include consideration of the s 6 FTCA Treaty clause.[23] I now turn to the proposed added points relating to the end product use of thegreen energy at additional point (b) above. The environmental effects of the end usesof the urea fertiliser were not discretely raised in the grounds of appeal and are notmentioned in the appellants' particularised points of law on appeal.14 The argumenton this point is outside the grounds of appeal. The limitation on what interested partiesmay argue enables an effective focus for all concerned on the points on appeal and theappeal time limits are designed to ensure that all parties have a fair time to considerand prepare their arguments. In this case, Hiringa was given further time and theopportunity (which it took) to file additional submissions to address the point. In thosecircumstances there is no or little prejudice to Hiringa. Leave is granted to argue thatpoint.[24] In relation to the transition from producing urea for fertiliser to hydrogen fuel,ground (f) of the grounds of appeal refers to the fact that the 100 per cent transition touse of "green hydrogen" for transport was a "critical reason" the Panel gave forapproving the project but had not been properly captured in the consent conditions. I14 Particularised Points of Law on Appeal, above n 7.consider the point concerning the failure to guarantee transition of use to hydrogenfuel is able to be argued within this ground.[25] The unlawful delegation point falls naturally within the point regarding theadequacy of the transition conditions.[26] Accordingly, I am of the view it is in the interests of justice to treat the pointsto which Hiringa has objected to, as set out at [17] above, as within the scope of theappeal. Leave is granted for those points to be argued on appeal.Principles on appeal[27] Under cl 44(1) of sch 6 of the FTCA, a party may appeal the decision of a panelto the High Court. The appeal is limited to a question of law.15 The parties to anappeal are the appellant and any person who gives a notice of intention to appear.16[28] The Supreme Court in Bryson v Three Foot Six Ltd said an error of law mayoccur if the decision-maker:17(a) applied the wrong legal test;18(b) reached a factual finding that was "so insupportable – so clearlyuntenable – as to amount to an error of law";19(c) came to a conclusion that it could not reasonably have reached on theevidence before it;20 or(d) took into account irrelevant matters; or failed to take into accountmatters that it should have considered.15 Schedule 6 cl 44(2) of the FTCA.16 Schedule 6 cl 45(8).17 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.18 At [24].19 At [26].20 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 45, (1994) 18ELRNZ 150 (HC) at 153; and May v May [1982] 1 NZFLR 165 (CA).[29] Procedural errors such as, for instance, a breach of natural justice undercommon law or statute, may amount to a point of law in an appeal.21[30] That a Court would have reached a different conclusion does not of itself allowinterference on appeal if the decision on appeal was a permissible option. Thispresents a very high hurdle.22 However, a question about facts and the evidence or theinferences and conclusions drawn by a decision-maker may sometimes amount to aquestion of law. Not every allegation of a lack of factual basis or wrong inferences orconclusions from the evidence, however, will turn such an issue of fact into a questionof law.23 As the Court of Appeal has noted, in the absence of a general appeal, it is notthe role of the Court in an appeal on a question of law "to undertake a broad reappraisalof the factual findings or the exercise of its evaluative judgments".24[31] In particular, the nature and statutory functions of the decision-maker shouldbe considered. Important factors, including whether it has particular expertise or widepolicy considerations, are to be taken into account in the exercise of itsdecision-making.25[32] Deference to expertise where appropriate must be accorded to the EnvironmentCourt as a specialist Court and the expert tribunal.26 As the High Court stated inGuardians of Paku Bay Association Inc v Waikato Regional Council, the EnvironmentCourt's decisions "will often depend on planning, logic and experience, and notnecessarily evidence".27 There the High Court noted that no question of law arosefrom the expression by the Environment Court of its view on a matter of opinion withinits specialist expertise, and that the weight to be attached to the particular planningpolicy will generally be for the Environment Court.2821 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175, [2019]3 NZLR 345 at [55]; and Kawerau Jet Services Holdings Ltd v Queenstown Lakes District Council[2015] NZHC 2353 at [45].22 Bryson v Three Foot Six Ltd, above n 17, at [27].23 Marris v Ministry of Works and Development [1987] 1 NZLR 125 (HC) at [127].24 Chorus Ltd v Commerce Commission [2014] NZCA 440 at [112].25 Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at[33].26 At [42].27 At [33].28 At [33].[33] The High Court has recognised that a Judge of this Court is not equipped torevisit the merits of a determination made by a specialist Court on a subject within itssphere of expertise.29 In Horticulture New Zealand v Manawatu-Wanganui RegionalCouncil, Kós J cited with approval the statement of Harrison J in McGregor v RodneyDistrict Council that:30 [t]o succeed on appeal an aggrieved party must prove that the Court erredin law – never an easy burden where the presiding Judge has unique familiaritywith the statute governing the Court's jurisdiction.[34] Although the decision in this case was made by an appointed Expert Panel, notthe Environment Court, the authorities as stated above in relation to decision-makingby expert tribunals are applicable.Statutory framework for resource consent applications under the FTCA[35] In this case, the Minister determined that this application should be a referredproject to be dealt with under the FTCA, as opposed to the usual process under theRMA.The Fast-track Consenting Act[36] The FTCA came into force on 9 July 2020 and has a sunset clause which seesthe legislation repealed on 8 July 2023.31 The purpose of the legislation is describedin s 4 as follows:4 PurposeThe purpose of this Act is to urgently promote employment to supportNew Zealand's recovery from the economic and social impacts ofCOVID-19 and to support the certainty of ongoing investment acrossNew Zealand, while continuing to promote the sustainablemanagement of natural and physical resources.[37] The fast-track consenting process applies to "listed projects", which areitemised in a schedule to the Act, as well as referred projects. This is a referred project.The Project requires land use consents, a water permit and a discharge consent. The29 Horticulture New Zealand v Manawatu-Wanganui Regional Council [2013] NZHC 2492, (2013)17 ELRNZ 652 at [28].30 At [28], citing McGregor v Rodney District Council [2004] NZRMA 481 (HC) at [1].31 Section 3(1) of the FTCA.applications for consent do not include consents for the existing fertiliser plant exceptfor the consideration of the infrastructure allowing the plant to be fuelled by the greenenergy hydrogen.[38] A project may be referred to an Expert Consenting Panel for determinationunder the FTCA if the Minister is satisfied that a referred project will help to achievethe purposes of the Act.32 The Minister may have regard to a number of matters,including: the project's economic benefits and costs for people or industries affectedby COVID-19; the project's effect on the social and cultural well-being of current andfuture generations; whether the project would be likely to progress faster by using theprocesses provided by the FTCA than would otherwise be the case; and whether theproject may result in a public benefit, which includes by, for example, contributing toNew Zealand's efforts to mitigate climate change and transition more quickly to alow-emissions economy.[39] The application to the Minister for referral must include a list of all the personsaffected or likely to be affected, including relevant local authorities, relevant iwiauthorities, and relevant Treaty settlement entities; as well as a summary of anyconsultation already undertaken on the project with those persons; and a list of Treatysettlements that apply to the geographical location of the project.33[40] The Minister must then obtain written comments on the referral applicationfrom relevant local authorities as well as relevant ministers, including the Minister ofMāori Crown Relations—Te Arawhiti, the Minister for Climate Change, and theMinister of Treaty Negotiations; and a report on the application for referral must beprepared by the Ministry in consultation with the Office for Māori Crown Relations—Te Arawhiti, identifying including, among other things, the relevant iwi authorities andTreaty settlement entities, and any Treaty settlements that relate to the project area.34[41] If the Minister decides to accept the application for referral,35 they must givenotice of their decision and reasons for the referral to, among others, the relevant iwi32 Section 18(2).33 Section 20(3)(h), (i) and (j).34 Sections 17(1)–(2) and 21(6).35 Section 24.authorities and Treaty settlement entities identified, and any other iwi authorities orTreaty settlement entities that the Minister considers have an interest in the matter.36[42] Once a project is referred on the recommendation of the Minister, theapplication is sent to the Environmental Protection Agency (EPA) with all informationreceived that relates to the matter.37 The project is then considered by the Panel.38[43] The information required in a consent application is set out at sch 6 cl 9 of theFTCA and includes: an assessment of the proposed activity against pt 2 of the RMA,the purpose of the FTCA and whether the project would help to achieve the purposeof the FTCA;39 information about any Treaty settlements that apply in the projectarea;40 and the conditions the applicant proposes for the resource consent.41[44] The application must also include an assessment of the proposed activityagainst any relevant objectives, policies, rules, requirements, conditions orpermissions in the following planning and policy documents:42 a national environmentstandard; other regulations made under the RMA; a national policy statement; aNew Zealand coastal policy statement; a regional policy statement or proposedregional policy statement; a plan or proposed plan; and a planning documentrecognised by a relevant iwi authority and lodged with a local authority.[45] An application must also include a cultural impact assessment (CIA) preparedby or on behalf of the relevant iwi authority, or a statement of any reasons given bythe relevant iwi authority for not providing a CIA.43[46] No public notification of the application is permitted.44 However, the panelmust invite written comments on the application before it from persons or groups listedin the FTCA, including the relevant iwi authorities and Greenpeace.4536 Section 25(2)(c) and (d).37 Section 26(2).38 Section 27.39 Schedule 6 cl 9(1)(g).40 Schedule 6 cl 9(1)(h).41 Schedule 6 cl 9(1)(j).42 Schedule 6 cl 9(1)(h) and (2)–(3).43 Schedule 6 cl 9(5).44 Schedule 6 cl 17(1).45 Schedule 6 cl 17(6)(b) and (o).[47] Any iwi authority invited to comment may share the consent application withhapū whose rohe is in the project area and may include those of hapū in its commentsto the panel.46 Comments must be made within 10 working days after the date onwhich the invitation for written comments is made.47 The panel is not required toreceive late comments but may, in its discretion, receive comments after the noticespecified in the invitation.48 The applicant for consent must then provide its responseor comments not later than five working days after the date the comments were to bereceived from the invited parties.49[48] In determining an application for consent under the FTCA, the provisions ofsch 6 of the FTCA apply instead of the usual process under the RMA.50 The provisionsof the RMA continue to otherwise apply, to the extent relevant and with necessarymodifications,51 including the duty to "avoid, remedy, or mitigate adverse effects".52A resource consent granted under the FTCA has the same force and effect for itsduration "and according to its terms and conditions", as if it were granted under theRMA.53 The duration of consents is generally 35 years.54[49] The consent process timeline is tight and is usefully represented as follows:5546 Schedule 6 cl 18(3).47 Schedule 6 cl 18(1).48 Schedule 6 cl 18(6).49 Schedule 6 cl 19.50 Section 12(2)(a).51 Section 12(10).52 Section 12(9); and s 17 of the RMA.53 Section 12(2)(b).54 Schedule 6 cl 36(4); and s 123 of the RMA.55 Te Mana Rauhī Taiao | Environmental Protection Authority "Fast-track consenting"<www.epa.govt.nz>.[50] In considering consent applications on referred projects, the panel must haveregard to a number of matters, including any actual and potential effects on theenvironment, any measures agreed to by the applicant to offset or compensate for anyadverse effects, any relevant provisions of the planning and policy documents listedabove, and any other relevant matter reasonably necessary to determine theapplication.56 The panel must not have regard to any effect on a person who has givenwritten approval to the application,57 unless the person withdraws their approval.58 Apanel must comply with any obligation on a local authority or other decision-maker56 Schedule 6 cl 31(1) of the FTCA.57 Schedule 6 cl 31(5)(a)(ii).58 Schedule 6 cl 31(6).under a Treaty settlement as if it were that local authority or decision-maker.59 A panelmay decline a consent application if the information is inadequate to determine theapplication,60 and must decline an application if that is necessary to comply with thes 6 Treaty clause under the FTCA.61[51] A panel may grant a resource consent subject to such conditions it considersappropriate.62 Before it does so, the panel must provide copies of the draft conditionsto the applicant and every person or group that provided comments.63 Before makingits final decision on a consent application, the panel must have regard to all commentsreceived on the draft conditions.64[52] Once the resource consent has been granted, the local authority has all thefunctions, duties and powers in relation to that consent as if it had been granted by thelocal authority.65 Those functions, duties and powers include the determination of anyapplication to extend a lapsed period,66 and the determination of any application forchange or cancellation of a condition of a resource consent.67The Expert Panel[53] The Panel convenor makes the final decision who from the panel is appointedto an expert panel to determine resource consents for a particular referred project.68The panel must include a person nominated by the relevant local authority and a personnominated by the relevant Iwi authorities.69 The panel chairperson is appointed by theconvenor and must be suitably qualified.7059 Schedule 6 cl 31(10). The example given is the Waikato-Tainui Raupatu Claims (Waikato River)Settlement Act 2010, which requires the consent authority to have particular regard to the visionand strategy set out in the settlement Act.60 Schedule 6 cl 31(8).61 Schedule 6 cl 31(12).62 Schedule 6 cl 35(2).63 Schedule 6 cl 36(1).64 Schedule 6 cl 36(5).65 Schedule 6 cl 42(2)(a).66 Schedule 6 cl 42(5)(a), referring to ss 125(1A) and 184 of the RMA.67 Schedule 6 cl 42(5)(b), referring to s 127 of the RMA.68 Schedule 5 cls 2(5) and 3(4)–(5).69 Schedule 5 cl 3(2).70 Schedule 5 cl 4(3).[54] Collectively, each panel must have knowledge, skills and expertise relevant toresource management issues, technical expertise relevant to the project, and expertisein tikanga Māori and mātauranga Māori.71[55] The Panel may hold a hearing if, in its discretion, it "considers it isappropriate".72 If it does hold a hearing, the panel may receive as evidence anystatement, document, information, or matter that may assist it to deal effectively withan application, whether or not it would be admissible in court.73[56] The hearing must be completed within the statutory timeframe. The panel'sdecision and report must be delivered as soon as practicable after a panel hascompleted its consideration of an application and in any case no later than 25 workingdays after the date specified for receiving the initial comments.74 However, a panelmay extend that period by up to a further 25 working days, or any other number ofworking days, "if the scale or nature of the proposal is such that the panel is unableto complete its decision within the time specified", that is 25 days.75 The Ministermay delay the processing of the consent application in limited circumstances, and theapplicant may also request such delay.76[57] The FTCA emphasises speed and efficiency in dealing with an application.Section 10 provides:10 Procedural principles(1) Every person performing functions and exercising powers under thisAct must take all practicable steps to use timely, efficient, consistent,and cost-effective processes that are proportionate to the functions,duties, or powers being performed or exercised.[58] Though the FTCA will be repealed on 8 July 2023, the panel continues in officeuntil it has completed the performance of its functions and duties,77 and the powers,71 Schedule 5 cl 7(1).72 Schedule 6 cl 21(1).73 Schedule 6 cl 21(9).74 Schedule 6 cl 37(1) and (2)(b).75 Schedule 6 cl 37(3)(b).76 Schedule 6 cls 22–23.77 Schedule 1 cl 1(5).functions and duties conferred by the FTCA on local authorities and iwi authoritiescontinue to be exercised or performed after the repeal of the FTCA for any purposeconnected with the monitoring of activities authorised under the FTCA.78First major issue — the Treaty and cultural issues[59] In considering this appeal, I first turn to the issues arising in respect of thePanel's consideration of the Treaty, as it is expressly required to do under s 6 of theFTCA (the Treaty clause), and related cultural issues.Treaty and cultural issues — backgroundCrown and Ngāruahine Treaty settlement[60] The Crown and Ngāruahine signed a deed of settlement in August 2014.79 Init, Ngāruahine and the Crown acknowledged that Tupuna Koro o Taranaki(Mt Taranaki) "is of great traditional, cultural, historical and spiritual importance toiwi of Taranaki".80 A guarantee of negotiations between the Crown and mandatedrepresentatives of Taranaki Iwi to develop an apology and cultural redress in relationto those claims, at a later point, was the form of redress to conditionally settle thehistorical claims of Ngāruahine relating to Mt Taranaki.81[61] The Ngāruahine Claims Settlement Act (the Settlement Act) was enacted in2016. Te Korowai is recognised in the Settlement Act as the mandated iwi entity.82[62] In the Settlement Act, the Crown acknowledged breaches of the Treaty and itsprinciples during the 19th and 20th centuries and that these significantly underminedthe traditional systems of authority and economic capacity of the Ngāruahine Iwi andits people.83 The Crown acknowledged that it had "failed to protect the rangatiratanga78 Schedule 1 cl 5(a).79 Ngāruahine and the trustees of Te Korowai o Ngāruahine Trust and the Crown "Deed of Settlementof Historical Claims" (1 August 2014) [Deed of Settlement].80 At [5.1].81 At [5.3]; and see Manatū Mō Te Taiao | Ministry for the Environment Report prepared inaccordance with Section 17 Covid-19 (Fast-track Consenting) Act 2020: Application 2020.028Kapuni Green Hydrogen Project (Hiringa Energy Ltd & Ballance Agri-Nutrients Ltd) at [32]–[33].82 Ngāruahine Claims Settlement Act 2016 [the Settlement Act], s 132.83 Section 9(16).of Ngāruahine, in breach of its obligations under Article Two of the Treaty ofWaitangi".84[63] The Settlement Act provides for the involvement of the iwi in decisionsrelating to the conservation estate. To that end, there are ongoing discussions towardsthe recognition of the significance of Taranaki Maunga to Taranaki iwi, includingNgāruahine, with a view to recognition of Te Maunga as a separate legal personality.[64] The statute recognises Ngāruahine as the kaitiaki of the general area in whichthe turbines are located. It provides for the lodging of a kaitiaki plan with the relevantlocal authority.85 The purpose of the kaitiaki plan is to identify the values andprinciples of Ngāruahine, and the resource management issues of significance toNgāruahine, in relation to the kaitiaki area.86[65] When a relevant local authority is preparing or reviewing a policy statement ora plan under the Resource Management Act, it must take into account any kaitiaki planlodged with it, to the extent that the plan's content has a bearing on the resourcemanagement issues of the kaitiaki area within its jurisdiction.87[66] In this case the relevant kaitiaki plan (the draft kaitiaki plan) is in draft and hasnot been lodged, although the draft kaitiaki plan was used by Te Korowai in itsCultural Impact Assessment prepared in respect of the present project.88[67] The Settlement Act also provides for three nominees from the iwi to sit on thelocal authority's policy and planning committee and regulatory committee.89 Thosenominees must act in the interests of the committee while also presenting theperspectives of the iwi of Taranaki to the committee.90[68] In this case Te Korowai was requested to nominate a member of the panel.84 Section 9(16).85 Section 78.86 Section 77.87 Section 79(2).88 See further discussion of the consideration of the draft kaitiaki plan at [83], [107], [128] and [234].89 Section 87(1) and (3) of the Settlement Act.90 Section 88.[69] The settlement also provides for the return of lands of cultural importance. Nocultural redress land lies within the project site. The land on which the four windturbines will be located is raupatu land (confiscated land) and is now owned by a Māoriincorporated trust, Parininihi Ki Waitōtara (PKW). It has agreed to lease the land toHiringa, but that remains subject to PKW's consent in writing.91 PKW said in itscomments to the Panel that it supported the Project and relevant resource consentsubject to the ongoing support of iwi and hapū and the final conditions.92 Manyshareholders in PKW are members of the hapū and iwi involved in these proceedings.Various positions of iwi and hapū in respect of the Project[70] Te Rūnanga o Ngāti Ruanui Trust, the mandated representative body of NgātiRuanui, commented in its submission that while it supported developments to generatesustainable energy to replace fossil fuels, it was concerned about the fast-trackinglegislation and whether the process would achieve a consenting outcome at theexpense of good environmental outcomes and the upholding of Treaty partnershipresponsibilities. In particular, the Trust expressed concerns about the dominance ofthe turbines on the landscape, namely their size and visual impact, which, if approved,could set a new benchmark for what could be approved for more to come.[71] A map showing in general terms the kaitiaki area (outer blue lines) and theposition of the seven marae of relevant hapū, as well as the location of the turbinesand the plant (in yellow), is annexed as Attachment 1 to this decision.93 Of the sevenNgāruahine marae in the vicinity of the Project, four are within seven kilometres ofthe turbines at the southern end of the Ngāruahine rohe. These are:(a) Mawhitiwhiti (Kanihi-Umatahi hapū);(b) Aotearoa (Okahu-Inuawai hapū);91 The details of the agreement to lease and conditions were not made available.92 The relevant agreement to lease or lease document between Hiringa and PKW was not before thePanel, nor was it produced at this hearing despite some discussion by counsel about the contentsof the lease. Counsel for Te Korowai indicated that the consent of PKW was subject to the supportof hapū and iwi. Hiringa denied this was a condition of the lease or agreement to lease.93 Hiringa Energy Ltd Kapuni Green Hydrogen Project: Direct line of sight area (6 May 2022).(c) Te Aroha (Ngāti Manuhiakai hapū); and(d) Waiokura (Ngāti Tu hapū).[72] Three marae are over 10 kilometres away from the turbines at the northern endof the Ngāruahine rohe:(a) Okare ki Uta (Ngāti Haua hapū);(b) Tawhitinui (Ngāti Haua hapū); and(c) Oeo Pa (Ngāti Tamaahuroa me Titahi hapū).[73] Te Aroha, a marae of Ngāti Manuhiakai hapū, is the most affected by the visualimpact of the turbines.[74] In respect of the Project, the various hapū took different positions.[75] As identified by Te Korowai early in the project, the two hapū holdingmana whenua over the project site land are Ngāti Tu and Ngāti Manuhiakai.Mr Hockly submitted that Ngāti Tu was ahikāroa94 in this rohe, as was demonstratedby their ongoing presence at Waiokura Marae, which lies directly south of the turbineproject area, and their maunga koro Taranaki. The awa (river) near the marae, certaintributaries of which cross the PKW land, connotes an area of kaitiakitanga to Ngāti Tu.This was explicitly recognised in the form of a statutory acknowledgement forNgāti Tu and Ngāruahine in the Deed of Settlement and was noted in the CIA.95[76] Ngāti Tu initially supported the Project subject to conditions, which it saidwere not then met by Hiringa, so it subsequently has withdrawn its support for theProject.94 "Ahikāroa" refers to the "burning fires of occupation" and denotes "continuous occupation":Te Aka Māori Dictionary "ahikāroa" <www.maoridictionary.co.nz>.95 Deed of Settlement, above n 79, at [5.31.1]; and Hiringa Energy Ltd and Ngāti Tu Hapū CulturalImpact Assessment (July 2021) [Ngāti Tu CIA] at 7 and 9–12.[77] Ngāti Manuhiakai hapū also has mana whenua over the area. It has approvedthe Project and its unconditional support remains in place.[78] Early in the project in late May 2020, Te Korowai had told Hiringa that itshould engage only with Ngāti Tu and Ngāti Manuhiakai as the proposals woulddirectly affect those hapū as mana whenua.96 Te Korowai recorded that Ōkahu-Inuāwai hapū wished to be involved in any future decisions should the Project bescaled up in the future, given concerns that the Waingongoro River, an important riverto the hapū, would be increasingly abstracted from should that occur.97[79] As more project detail became known to Te Korowai, however, it took the viewthat the impacts were likely to affect all six hapū, based on the potential impacts of thewind turbine component of the project.98Te Korowai Cultural Impact Assessment (CIA)[80] The most valued site of significance to Ngāruahine, Taranaki Maunga, lieswithin the Ngāruahine kaitiaki area. Te Korowai, being the post-settlementgovernance entity for Ngāruahine iwi, produced a detailed CIA, dated 16 August 2021,prepared in view of the Project, noting it had a responsibility to ensure that the culturaland environmental values and interests of Ngāruahine were safeguarded.99[81] Te Korowai said its CIA was designed to inform the Panel of the "issues andpotential impacts of the Project on Ngāruahine cultural values and interests".100 Thetwo streams (and tributaries) related to the Project were both statutoryacknowledgement areas under the Settlement Act.101[82] Te Korowai noted that the permanent placement of the turbines had thepotential to have a considerable impact on the highly valued relationship of96 Te Korowai o Ngāruahine Trust Cultural Impact Assessment: Kapuni Green Hydrogen Project (16August 2021) [Te Korowai CIA] at 2.97 At 2.98 At 2.99 At ii.100 At ii.101 At 2.Ngāruahine uri to Taranaki Maunga.102 However, it conditionally supported theproposal if there was a clear commitment from the applicant to remove the windturbines from the site at the end of their useful life or after 35 years, whichever wasthe earlier.103[83] The Te Korowai CIA noted the tukanga, or methodology, of the assessment hadthe potential to ensure the resource management processes were Treaty-compliant andso enable the exercise of tino rangatiratanga by iwi and hapū in their traditionalterritories, the prioritisation of kaitiaki interests and the expression of effective tangatawhenua influence in decision-making.104 It looked to its draft kaitiaki plan, hapūstatements and responses, its five-year strategy and the Settlement Act as sources ofthe cultural values used to develop the CIA.105 A copy of the Ngāruahine draft kaitiakiplan was annexed to the CIA.[84] Appendix 3 recorded the positions of the six hapū of Ngāruahine in relation tothe Project, which I now outline in summary.[85] In respect of Ngāti Tu, Te Korowai commented that it supported the contentsof and expression of rangatiratanga in the CIA developed by Ngāti Tu with supportfrom Hiringa.106 I discuss the CIA of Ngāti Tu in greater detail below.[86] Kānihi-Umutahi hapū gave no official feedback but commented that they workwith Ōkahu-Inuāwai in a "mutually respectful and beneficial relationship based oncommon whakapapa and objectives."107[87] Ngāti Haua said the short timeframe had given it no time to come together ina productive way to consider and discuss the impacts that the application had on it asa hapū.108 It requested that in future engagement, it be given more time andopportunity to have the mahi explained so they could give meaningful feedback. They102 At ii.103 At ii.104 At 2.105 At 4.106 At 38.107 At 38.108 At 38.expressed a sense of disempowerment and loss. As they recorded, "as tangata whenuawe again are asked to find a work around of our cultural beliefs and connections to theenvironment/taiao (Tupuna Maunga)".109 It said that it felt like they were "too late"and the decisions had been made. It felt like a "minority voice who are just part of theconsultation tick box process".110 The hapū was concerned about the inability tomitigate against harm that disturbs the essence of "wairua – the spiritual pathway froma person to Tupuna Maunga and the Taiao".111 It sought to see a focus on MaungaTupuna as a legal person in the CIA as an important feature".112 The hapū insisted thatwhen looking at the cultural impacts on hapū and iwi, the application do so from a"holistic, whole of Maunga approach".113 The hapū commented that while each hapūhas mana whenua for the location their marae resides in and some hapū may beimpacted more, many uri belong to many of the marae in the South Taranaki locationand wider, and not just to one marae. As the hapū said:114Thus we as a people are not restricted by Marae, rohe, area to carry out culturalpractices. Rituals can be practi[s]ed anywhere in Taranaki ... regardless whichPā you are from, Tupuna Maunga will be your kaitiaki as you carry outcultural practices in your day to day activity.[88] Referring to "this offensive use of our maunga, waterways and whenua", thehapū stated:115Looking out towards our Tupuna Maunga, all we will see is a reminder thatwe continue to be colonised to the point that we may now have a physicalobstruction between us and our Tupuna Maunga.[89] The hapū said it was crucial to the psychological being of the hapū toconsistently maintain its identity without seeing the man-made physical obstructionsintruding across its path.116 It noted the importance of the following values from theTe Anga Pūtakerongo record of understanding between Ngā Maunga o Taranaki (themandated entity for negotiation of Tūpuna Maunga) and the Crown:117109 At 38.110 At 39.111 At 39.112 At 39.113 At 39.114 At 39 (emphasis in original).115 At 40.116 At 40.117 At 40.(a) the status of Ngā Maunga as an indivisible whole and as Tupuna;(b) preserving and protecting the natural environment and features ofNgā Maunga and the relationship of Ngā Iwi o Taranaki and all peoplewith Ngā Maunga; and(c) upholding the ancestral, historical, spiritual, and cultural relationshipsof Ngā Iwi o Taranaki with our Tupuna.[90] Ōkahu-Inuāwai hapū recorded that at a hapū hui on 28 February 2021, therewas general consensus that they: did not support wind turbines as part of the Project;did not support any fast-tracking of the project, which they said will leave hapū behind;and had formally withdrawn from future discussions with the Project.118[91] Tamaahuroa Titahi hapū, following a hui of the hapū held on 15 May 2021,recorded that they supported Hiringa's work "to reduce emissions and that theysupport[ed] any decisions made by Ngāti Manuhiakai and Ngāti Tu regarding theproject".119[92] Ngāti Manuhiakai hapū commented that they had met and assessed theproposal. By letter to the Minister dated 15 February 2021, the hapū confirmed theirconstructive relationship with Hiringa and that it was satisfied with the consultationwith the hapū to date in respect of the Project.120 It noted that an offer to finance aCIA had been made but the hapū was satisfied that the potential impacts had beenidentified and "can and will" be appropriately mitigated, and that the interests of thehapū had been taken into account. The hapū concluded by confirming that theysupported the project "in principle" and were "look[ing] forward to working with[Hiringa] in the delivery and operation of this exciting project."118 At 40.119 At 40.120 Letter from Ferinica Hawe-Foreman (Tiamana o te Ngāti Manuhiakai hapū) to David Parker(Minister for the Environment) regarding the support of the hapū for the project (15 February2021).Ngāti Tu Cultural Impact Assessment (CIA)[93] Ngāti Tu prepared a CIA in respect of the Project, dated July 2021.121[94] The CIA provided a brief history of Ngāti Tu and the connection to andimportance of the Kaupokonui River.122 The hapū noted the mauri of the awa and theimportance to Ngāti Tu of a healthy waterway. The CIA also noted the importance oftrees and requested a "Fresh Water Ecology Report" from within the last 12 monthsand/or a Stream Health Monitoring Assessment Kit Test (SHMAK) as to the ecologicalhealth status of the waterways within their boundaries.123 The hapū also supportedmore trees and riparian planting to be done along the waterways, and not just in asingle row.124 The assessment also noted the importance to Ngāti Tu of mauri whenua(healthy land) and its support for the use of more natural/organic-based fertilisers.125[95] While the hapū recognised the benefits of wind turbines, particularly as a cleanfuel source, it noted challenges including the impact on local wildlife and of disposingof aging turbine blades.126 The assessment recorded that Ngāti Tu looked forward toworking closely with Hiringa in developing a strategy around thedecomposing/disposal of the wind turbine propeller and further consideration to thefuture planting of trees.127 The report noted that Hiringa had made a good effort tosatisfy many of the issues raised in relation to the wind turbines thus far.128[96] Ngāti Tu then set out the offer they had received from Hiringa and theirresponse to that offer.129 In essence Hiringa stated it was seeking support fromNgāti Tu to ensure cultural elements had been identified and mitigated, as well asformal recognition that cultural elements had been addressed. In return Hiringa wasoffering a contribution to an environmental restoration project of importance to121 Ngāti Tu CIA, above n 95.122 At 4. Ngāti Tu Hapū is named after a tipuna, Tuhaereao. The boundary of Ngāti Tu is south ofthe Otakeho River to south of the Kapuni Stream — from the mountain to the sea. The boundariesare shared with Ngāti Haua and Ngāti Manuhiakai.123 At 13.124 At 13.125 At 14.126 At 16.127 At 16–17.128 At 19.129 At 21.Ngāti Tu, remunerated cultural monitoring and opportunities for employment withcontractors during the earthworks stage, installation of a new solar energy system atthe marae to fully cover electricity costs, and the development and implementation ofa landscape plan/native planning scheme for the marae. Hiringa also offered tosupport development of an aquaculture project.[97] In its response to the offer, Ngāti Tu acknowledged Hiringa sought to establisha relationship with them.130 They stated that after much discussion, as kaitiaki of therohe they would require an annual royalty to fund immediate needs of the hapū inorder to fully support the Project.131 However, they noted they were happy with thegeneral direction in which Hiringa was heading.132[98] The hapū said the goal of targeting zero carbon emissions was in line with asustainable future. It concluded:133Compared to many other provinces around Aotearoa, Taranaki is very lucky.There is an opportunity to make changes while we can, to look after thewhenua and awa and it means being proactive and informative but alsolooking at more collaboration and changing the way we do things.Treaty and cultural issues — the expert report[99] I now turn to the Panel's assessment of the Treaty and cultural issues.Iwi concerns with the Project[100] Counsel for the parties accepted that the general concerns of the hapū wereaccurately summarised by the Panel. Its report acknowledged the wide variety ofviews and responses by the different hapū as well as the concerns based on the wholeof the Ngāruahine cultural landscape and its relationship with Taranaki Maunga, as setout above.134[101] The Panel recorded the concerns of Te Korowai that the FTCA process:135130 At 22.131 At 22.132 At 22.133 At 23.134 The Panel Report, above n 4, at [130].135 At [131].(a) removed the ability for Ngāruahine to participate in RMAdecision-making processes as provided for in the Settlement Act;(b) failed to account for the ongoing Taranaki Maunga Treaty Settlementand the relationship between all iwi of the region and Taranaki Maunga;and(c) undermined the positive relationship Te Korowai had built with theSouth Taranaki District Council, which would otherwise under thestandard resource consent processes have been crucial todecision-making.[102] The Panel recognised concerns that had been expressed about the effect of theproject on the Ngāruahine cultural landscape in general terms. It acknowledged thatto the iwi, the Ngāruahine cultural landscape described both the physical area and therelationship and interaction between Ngāruahine and the environment.136 It noted thevalues within the landscape went beyond the visual aesthetics or concern for thenatural involvement but included "the sense of space that underpins Ngāruahineidentity", a "cultural relationship with the land, coastal and freshwaters, indigenousbiodiversity, and Taranaki Maunga."137[103] The Panel further noted that Te Korowai had made its expectations around theprotection of the Ngāruahine cultural landscape and significant relationship ofNgāruahine uri to Taranaki Maunga clear to Hiringa, and that its position regardingthe wind turbines and occupation of the Ngāruahine cultural landscape was "based onprotecting the rights and interests of all uri, whānau and hapū of Ngāruahine."138[104] The Panel recognised that the Te Korowai CIA had concluded the impact ofthe turbines was not de minimis but would be high and potentially lead to cumulativeadverse cultural effects.139136 At [153].137 At [153].138 At [154].139 At [156].[105] The Panel went on to note comments by Ngāti Ruanui about the dominance ofthe turbines on the landscape "with an adverse visual landscape impact that cannot bediminished or compensated."140[106] Due to the impossibility of offsetting any visual landscape impacts, the adverseimpact of the turbines on the landscape could not be diminished or compensated byany other action.141[107] The Panel recorded that the relationship of Ngāruahine to Taranaki Maunga,"their most significant wāhi tapu", was "ancestral, spiritual and physical" and had a"direct effect on their wellbeing, sense of place and identity as Ngāruahine."142 ThePanel acknowledged that Te Korowai considered the turbines would obstruct and/ormodify a space which is "crucial" to the sense of identity as Ngāruahine.143 The Panelwent on to note, the Te Korowai CIA had acknowledged the turbines would bearranged in a way that best ensured the views to Tupuna Maunga from all marae andkura kaupapa within the rohe of Ngāruahine were maintained, in accordance withrespective preferences expressed by hapū and in accordance with Policy 6.4 of theNgāruahine draft kaitiaki plan.144[108] The Panel also recorded the concerns expressed in the Te Korowai CIA as towhat might occur if the project and technology was scaled up and extended.145 Hiringahad agreed to the conditions recommended by Te Korowai in its CIA146 as a result ofthese concerns.147[109] Similarly, in relation to concerns expressed by Te Korowai and Ngāti Tu on theimpact on freshwater resources, the Panel noted a freshwater ecological assessmenthad been undertaken and concluded that, subject to adherence to the mitigation140 At [157].141 At [157].142 At [158].143 At [158].144 At [160].145 At [163].146 Namely the development with Ngāti Manuhiakai and Ngāti Tu of a turbine decommissioning planto remove all of the turbines at the end of their useful life or 35 years and the development of analternative site plan for replacement turbines on a site or sites coastward of State Highway 45.147 At [163].measures, any adverse effects on freshwater ecology would be appropriately avoidedand/or mitigated.148[110] The Panel had also accepted in its report, in relation to ecological effects,expert evidence that, contrary to earlier concerns raised by Ngāti Tu, the turbines didnot pose a risk of collision to bats or migrating birds.149 The Panel noted that theposition regarding the possible presence of lizards was "rather different" but thatHiringa had accepted a lizard management plan for rescue and relocation to beincluded as a condition.150Assessment by the Panel of Māori and cultural values issues[111] The Panel noted the site of the proposal was within the rohe of Ngāruahine andRuahine as well as the rohe of the Te Rūnanga o Ngāti Ruanui Trust as the mandatediwi representing the 80,000 uri, 16 hapū and 10 marae affiliated to Ngāti Ruanui.151[112] The engagement of the applicant with Te Korowai had begun in July 2019 andthe advice from Te Korowai that the applicant should engage directly with the twohapū who had mana whenua in respect of the project site, being Ngāti Tu andNgāti Manuhiakai.152 The Panel went on to note that Hiringa had engaged with bothhapū since mid-2020 and had sought to address concerns with a view to establishingconstructive long-term relationships. These resulted in the Ngāti Tu CIA and the letterof support from Ngāti Manuhiakai.[113] The Panel recorded that Te Korowai had subsequently advised that all hapū ofNgāruahine should be considered potentially affected by the proposal, and thatTe Korowai had been invited to nominate a member for the Panel in accordance withthe Act.153148 At [164]–[166].149 At [82].150 At [84].151 At [110]–[114].152 At [116].153 At [118].[114] The Panel noted it had sought comments from Te Korowai or Ngāruahine hapū,Ngāti Ruanui and the Taranaki Māori Trust Board.154 It noted the Te Korowai concernthat the impacts of the project "are likely to affect all six hapū of Ngāruahine", andacknowledged that hapū responses to the project varied widely, "ranging from totalsupport, to a neutral stance, to opposition."155[115] The Panel recorded that Te Korowai had expressed its concern that thefast-track process had removed its ability to participate in the usual RMAdecision-making process, failed to account for the ongoing Taranaki Maunga Treatysettlement and the relationship between all iwi of the region in Taranaki Maunga andhad undermined the positive relationship that Te Korowai had built with the SouthTaranaki District Council which would otherwise have been crucial todecision-making under the standard resource consent processes.156 The Panelrecorded the hapū responses as set out above.157[116] The Panel noted that Te Korowai had conditionally supported the proposal aslong as there was a clear commitment from the applicants to remove the wind turbinesfrom the proposed site at the end of their useful life or a maximum of 35 yearsoperation (whichever occurred earliest) based on their concerns regarding theprotection of the unique Ngāruahine cultural landscape.158[117] The Panel went on to look at the measures proposed by Hiringa for whichTe Korowai indicated conditional support, including the provision of material supportfor STEM education pathways for Māori children such as a possible education vanresource, and assessment of wind potential siting and development of monitoring withhapū.159[118] The Panel then recorded the further conditions Te Korowai had recommendeddealing with the end-of-life phase of the turbines, namely development with the manawhenua hapū of a decommissioning plan for the four turbines at the end of their useful154 At [122].155 At [130].156 At [130]–[131].157 At [133]–[136].158 At [152].159 At [138].life or 35 years and an alternative site plan for any new replacement turbines on a siteor sites coastward of SH45, which conditions Hiringa accepted.160[119] The Panel also recorded that Te Korowai had sought a number of otherconditions of consent, such as support for solar and renewable energy projects for theremaining marae, not increasing the water take under the existing resource consentsand allowing for stream monitoring.161[120] The Panel said that in its CIA Te Korowai had acknowledged that a relationshipagreement had been developed with the applicants, but that the constraints of thefast-track process had not allowed for this agreement to be finalised and signed.162[121] The Panel then went on to review the CIA of Ngāti Tu, noting that the hapūhad acknowledged the effort made by Hiringa to satisfy its concerns163 and recordedthe various measures that Hiringa had agreed to.[122] The Panel noted that the core cultural principles of Ngāti Tu centred in manawhenua, mana awa and mana tangata, and the CIA had discussed each principle asthey related to the application, recording the conclusions as follows:164(a) With a request for a Fresh Water Ecology Report and/or Stream HealthMonitoring Assessment Kit Test (SHMAK) as to the ecological healthof waterways in their takiwā, noting they would support moretrees/riparian planting along waterways, and acknowledging theapplicants will replace any riparian plant removed on farm, to enableculverts for site access, at a 2:1 ratio and are giving consideration togo beyond single row planting.(b) The advantages of the wind turbines cancel out the disadvantages,noting the applicants' commitment to develop a decommissioningstrategy to avoid disposal of the turbines in landfill.(c) In terms of the effects on migrating birds, consideration should begiven to future planting of trees and potential for increased activity ofbirdlife, in response to which the applicants offered to plant additionaltrees at locations around the site including in an area Ngāti Tu Hapūapproves.160 At [139]–[140].161 At [141].162 At [142].163 At [145].164 At [144].[123] The Panel noted that Hiringa said that the project had considered "multiplefactors to enable project viability while managing and minimising the impacts of theturbines and that site selected is the only identified viable site for the proposedproject."165[124] The Panel specifically referred to comments from Te Korowai expressing their"fundamental concerns related to the fast-track process and the impact of the Projecton their cultural landscape and relationship with the Maunga", which Te Korowaiconsidered were not addressed by the Project or draft conditions.166[125] The Panel however took the view that many of the issues (including thoserelated to wind turbine location and landscape) had already been addressed in theconditions which had been volunteered by Hiringa.167 It acknowledged thegroundwork done by iwi and hapū in the application to address those concerns.168[126] In the detailed feedback on the proposed conditions considered by the Panel inNovember 2021, Te Korowai recommended amendments to the conditions to ensurethe provision of information to Te Korowai, Ngāti Tu and Ngāti Manuhiakai in relationto culverts and the lizard survey and sought a condition providing the opportunity fora representative from each of those hapū to be present during earthworks. Theconditions were to be amended accordingly to cover these issues.169[127] Other concerns expressed by Te Korowai related to air traffic safety andongoing concern for the potential for the increased water abstraction. Conditions wereimposed in relation to the former and the Panel noted any future abstraction would bethe subject of a separate consenting process.170[128] The Panel recorded that it had also considered, in addition to the CIAs,correspondence and comments received from iwi and hapū, iwi/hapū management165 At [170].166 At [171].167 At [172].168 At [172].169 At [173].170 At [174]–[175].plans, Treaty settlements and the Treaty.171 The Panel recorded its satisfaction that theTe Korowai draft kaitiaki plan had "been appropriately taken into account and utilisedby Te Korowai to develop their CIA, to which the applicants and the Panel have givensignificant consideration."172[129] With regard to the Ngāti Ruanui Environmental Management Plan, the Panelnoted that the project in question was not in the takiwā of Ngāti Ruanui and the windturbines had been designed and situated to minimise noise and negative visual impacts,with various forms of mitigation being agreed to and draft consent conditionsproviding for noise monitoring and reporting.173 Overall, the Panel said:182. The applicants have acknowledged the cultural significance ofTaranaki Maunga and the visual effects of the turbines and have sought tominimise as far as practicable the cultural and visual impacts and proposed anumber of mitigation measures. These measures included relocating theturbines south of the Ballance Kapuni plant to PKW land, orientating theturbines in a north south configuration, and reducing the spacing between theturbines to reduce the visual impact on Maunga views from sensitive sites andthe Manaia town.Findings as to the impacts of the Project[130] The Panel made a number of specific findings as to the effects of the turbines,including, in summary, the following:(a) In terms of visual amenity,174 the effects on relevant marae were largely(in the case of five of the seven marae) assessed as "very low to low".175The visual effects on Te Aroha Marae (Ngāti Manuhiakai) wereassessed as "high", but that hapū had provided a letter of support forthe project.176 The visual effects on Mawhitiwhiti Marae were assessedas "moderate", but no official feedback was received from the relevanthapū, Kanihi Umutahi.177 The Panel had recorded that while theturbines were prominent when viewed from various places, the nature171 At [177].172 At [178].173 At [179]–[181].174 At [147]–[152].175 At [150].176 At [151].177 At [152].and scale of the landscape was such that the turbines could besuccessfully accommodated without significant adverse landscape andvisual effects, subject to appropriate planting for the benefit of the smallnumber of properties more directly adversely affected.178 A mechanismfor offering and completing agreements in that regard was set out in theconditions.179(b) Ecological effects were appropriately mitigated, as were the effects onfreshwater ecology.180 These were the subject of conditions.(c) Noise and related effects were negligible.181(d) Effects on historic cultural values were not significant and thelikelihood of recovering in situ archaeological evidence was assessedas low. An archaeological discovery protocol was put in place to someassurance to all parties in that respect.182(e) There were no current Treaty negotiations directly relevant to theproject site, though the Crown was in collective negotiations with NgāIwi o Taranaki to provide an apology and cultural redress in relation toMt Taranaki, the Pouākai and Kaitake ranges (Ngā Maunga), whichformed part of the settlements in respect of each iwi.183 The onlyrelevant Treaty settlement of direct relevance to the project area wasthat in place with Ngāruahine and recorded in deeds of settlement.184(f) There were no activities on land returned under a Treaty settlement,185nor were there any cultural redress properties on which the Projectimpacted.186178 At [73].179 At [69].180 At [79] and [87].181 At [94].182 At [215].183 At [185].184 At [183].185 At [186].186 At [187]–[188].[131] The Panel recognised that its comments on the effects on the landscapegenerally did not address the adverse effects on the cultural landscape for iwi. Thiswas, as noted, due to their connection with the Maunga and its influence on the widerlandscape which held special value.187 To that extent, those effects overlapped withadverse cultural effects which the Panel addressed later.Findings in relation to cultural issues[132] In relation to cultural issues in play here, the Panel found that:(a) It was satisfied the applicants had consulted all iwi and hapū with aninterest in the project and a desire to determine how kaitiakitanga couldbe integrated into the project, to mitigate the cultural effects of theproject and to find partnership opportunities that will benefit tangatawhenua.188(b) The applicants had resourced and supported the development of CIAsby iwi and hapū and genuinely sought to address the adverse issues ofconcern. These were largely supported by Te Korowai andTe Korowai's recommendations and requested consent conditions hadbeen adopted by the applicant.189(c) The applicants had sought to minimise the impact on the culturallandscape of Ngāruahine and its hapū as far as possible. This includedrelocating and re-orientating the turbines so reducing the spacingbetween turbines.190(d) Kaitiakitanga had been implemented in relation to practices such as sitewalkovers and karakia.191187 At [153].188 At [203].189 At [204].190 At [205].191 At [206].(e) There were no known archaeological sites on the application site andthe proposal avoided sites and areas of cultural and spiritualsignificance with hapū observation of earthworks and ongoingenvironmental monitoring and discovery protocol in place.192(f) The turbines would have an impact on the cultural landscape andspecial relationship Ngāruahine and their hapū had with TaranakiMaunga for the duration the projects were in place.193[133] The Panel addressed the s 6 Treaty Clause and explained how that applied tothe application. I deal with that in more detail below. Then it concluded:194208. Whilst we acknowledge those concerns we are cognisant of themitigation measures undertaken by the applicants and the conditions ofconsent which to a large extent have satisfied Te Korowai, Ngāti Tu andNgāti Manuhiakai, to ensure that this development is constrained to its presentintensity.209. With the number of wind turbines to be erected at the PKW sitelimited to four, the removal of the turbines after the expiry of their useful lifeor after a maximum of 35 years of operation subject to a DecommissioningPlan prepared in collaboration with Te Korowai, Ngāti Tu andNgāti Manuhiakai, including an Alternative Site Plan if necessary to identifyan alternative site/s coastward of SH45, we are satisfied the concerns of theIwi and Hapū regarding the protection of their cultural landscape have beenaddressed, while also recognising the importance of the Government'scommitment to renewable energy, including as contained in the NPS-REG.210. While we acknowledge the concerns raised by iwi in relation to thefast-track consenting process, those are not matters the Panel has anyjurisdiction over.211. We acknowledge the applicants' intention to continue to work closelywith Te Korowai and the mana whenua hapū Ngāti Manuhiakai and Ngāti Tu,to ensure the cultural impacts of the Project are understood and respected, andto build a relationship that results in positive outcomes for the Hapū,Te Korowai, the broader community, and the environment. We alsoacknowledge the sincerity in the applicants' response that they have developeda relationship agreement with Te Korowai and signed the agreement thoughthe matter currently sits before Te Korowai's Board to complete. Whether ornot their Board or delegated authority agrees and executes that relationshipagreement has no bearing on the decision we have reached.192 At [206].193 At [207].194 At [208]–[211].[134] The Panel went on to assess the Project against the relevant policy statementsin planning instruments.[135] It first noted that the National Policy Statement Renewable Energy Generation(NPS-REG) recognised the national significance of renewable energy generation andacknowledged the practical implications of achieving New Zealand's target forelectricity generation from renewable resources.195 It noted Policy C2 directeddecision-makers that when considering any residual environmental effects ofrenewable energy generation activities that cannot be "avoided, remedied or mitigated,to have regard to offsetting measures."196[136] The Panel then noted the National Policy Statement-Freshwater Management(NPS-FM) entrenched the importance of freshwater management and the Projectappeared to be consistent with those policies as any actual or potential effects werelimited to the construction period.197 These were to be managed in accordance withbest practice control and settlement control measures under the conditions, includingthose directed to maintaining fish passage and stream function, with riparian plantingmitigation.198[137] The Panel noted the New Zealand Coastal Policy Statement (NZCPS) wasgenerally irrelevant to the Project, apart from erosion and sediment control plans,which had been provided for in effective conditions.199[138] With respect to the Regional Policy Statement (RPS), the Panel concluded thatthe Project was consistent with Chapters 4 (Use and Development of Resources), 7(Air and Climate Change), 14 (Energy) and 15 (The Built Environment). The Panelconsidered that conditions would ensure the Project conformed with Chapters 5 (Landand Soil), 11 (Natural Hazards), 6 (Freshwater) and 9 (Indigenous Bio-Diversity).195 At [220].196 At [220].197 At [221].198 At [221].199 At [222].[139] However, the Panel said it had reached the "unavoidable conclusion" that theProject was "not fully consistent" with all the objectives and policies of the RPSinsofar as it related in particular to the Māori cultural and spiritual values associatedwith Taranaki Maunga.200 It specifically referred in this respect to the possibleinconsistencies arising in relation to Chapter 10 (Natural Features and Landscapes,Historical Heritage and Amenity Value) and Chapter 16 (Statement of ResourceManagement of Significant to Iwi Authorities).201[140] In particular, the Panel referred to the Natural Features and Landscapes (NFL)Policy 1, noting the "special scenic, recreational, scientific and Māori cultural andspiritual values associated with Taranaki Maunga" and NFL Policy 3, which concernedthe protection of outstanding natural features and landscapes.202 The Panel alsoreferred in this respect to the RPS as it related to issues of significance to iwiauthorities.203 In particular the Relationship of Māori with Ancestral Lands, Water,Sites, Wāhi Tapu and other Taonga (REL) Objective 1, which is "to recognise andprovide for the cultural and traditional relationship of Māori with their ancestral lands and other sites and taonga within the Taranaki Region" as well as REL Policy 3,relating to protecting wāhi tapu and other sites or features of historical and culturalsignificance from adverse effects of activities as far as practicable, REL Policy 5,recognising and providing for the cultural perspectives of iwi in relation to identifyingand protecting outstanding natural features and landscapes, and REL Policy 7,providing for the maintenance and enhancement of water bodies which have specialsignificance to iwi in a manner respectful of tikanga Māori. Finally, the Panel pointedto inconsistency with the provisions in the Cultural and Spiritual Values (CSV) relatingto recognising cultural and spiritual values of tangata whenua and resourcemanagement processes,204 which it saw as "envisaging the importance of the Maungato iwi given its cultural and spiritual significance."205 In particular, CSV Objective 1is to carry out management of natural and physical resources in the Taranaki region ina manner that takes into account the cultural and spiritual values of Taranaki iwi in a200 At [225].201 At [224].202 At [224].203 Taranaki Regional Council Regional Policy Statement for Taranaki (January 2010) at 127.204 At 135.205 The Panel Report, above n 4, at [224].manner which respects and accommodates tikanga Māori, while CSV Policy 1requires that the special relationship Taranaki tangata whenua have with Te Taiao (theenvironment) will be given particular consideration in the promotion of the sustainablemanagement of the region's resources.[141] The Panel concluded:225. The Panel considers that it is an unavoidable conclusion that theproject is not fully consistent with all the objectives and policies of these twochapters of the RPS. However, for the reasons set out in effects on the culturaland heritage values the Panel does not consider such inconsistency asproblematic.[142] Having dealt with the other categories of effects, it said:233. Once again, the only objectives and policies that would appear on theirface to contain policies that might be inconsistent with the project are thoserelating to tangata whenua. To the extent that those policies requireengagement and consultation, they appear to have been met. But again the realissue devolves to the substantive recognition and provision for the relationshipof tangata whenua and their culture and traditions (including mauri) with theirsites and areas of cultural and spiritual significance – namely the Maunga. ThePanel accepts that a potential inconsistency arises in that regard and makes thesame observation made in respect in of the RPS polices on those topics.234. With the exception of the cultural significance of the Maunga to Iwi,the project is consistent with the objectives and policies of historic heritage inthat there are no known features of significance, but that if any are discoveredin the course of the project, appropriate steps can be taken to investigate andconserve as per conditions that have been to some extent reshaped by thePanel."[143] The Panel noted that in terms of the planning instruments it needed to beremembered that the required consents were at worst classified as discretionaryactivity and a number were controlled or restricted discretionary activities where theambit of exercising a discretion to decline was limited.206[144] The Panel concluded that the consent was justified under cl 31(1)considerations (actual and potential effects on the environment) and that with theappropriate conditions there were no disenabling effects in terms of the legislativerequirements.207206 At [244].207 At [242].[145] The Panel said the effects on Māori had been specifically addressed earlier andin terms of sch 6 cl 31(2) of the FTCA, the Panel had reached the view that grantingconsent with the appropriate conditions was "consistent with Te Tiriti and withrelevant Te Tiriti settlements."208[146] It recorded that in reaching its conclusions, the Panel had disregarded theadverse effect of any activity permitted by planning instruments and any effect onpersons who had given written approvals to the application, as it was required to do.209[147] Ultimately, the Panel was satisfied that it was appropriate to grant consent onthe application for a term of 35 years from the date of grant on the conditionsattached.210Conditions related to cultural issues[148] The conditions imposed relevant to cultural matters included the following:(a) Condition 1 — Consent granted generally in accordance withapplication:The project was to be undertaken in "general accordance" with theinformation in the consent application and assessment anddocumentation relevant to it. The consent conditions weredeterminative if any inconsistency.(b) Condition 8 — Limitation on turbine development:The number of turbines was limited to four.208 At [246]. Schedule 6 cl 32(1) of the FTCA refers to the provisions of the RMA relating to thenature of the consent decisions required depending on the nature of the application. For example,for a controlled activity, under s 104A of the RMA the consent must be granted, but fordiscretionary activities, under s 104B of the RMA the decision-maker may grant or refuse it andmay impose conditions under s 108.209 At [247]. See sch 6 cl 31(5)(a)(ii) of the FTCA.210 At [248].(c) Condition 36 — Information on culvert freshwater flows and fish andspecies:Reports containing detailed information on the culvert, including areport on likely impediments on the passage of fish and speciesinformation, were to be reported to the Taranaki Regional Council andto Te Korowai, Ngāti Tu and Ngāti Manuhiakai.(d) Condition 45 — A maintenance and monitoring plan of culvert:A plan covering points including steps to take to ensure fish passagewas to be provided to the Taranaki Regional Council.(e) Condition 73 — Ecological monitoring:Expert lizard survey to be completed and provided to the Departmentof Conservation, the Group Manager – Environmental Services, SouthTaranaki District Council, the Chief Executive, Taranaki RegionalCouncil and Te Korowai, Ngāti Tu and Ngāti Manuhiakai.(f) Condition 88 — Archaeological discovery protocol:An archaeological discovery protocol would apply to the unexpecteddiscovery of artefacts or archaeological material.(g) Conditions 89–91 — Cultural issues:Any site inductions to include cultural component providing detail ofmana whenua iwi and hapū for the project area, the cultural significanceof the project area to mana whenua and the protocols in place related toearthworks monitoring and archaeological discovery. Opportunities tobe extended to Ngāti Tu and Ngāti Manuhiakai to perform karakia tobless the project sites prior to works commencing and to haverepresentatives present during any earthworks involved in the project.(h) Conditions 99–106 — Ongoing consultation:A representative each from Ngāti Tu and Ngāti Manuhiakai to beinvited to participate in a consultative group which would meet at least6-monthly during construction and over the first 2 years of operation ofthe Project and thereafter as determined by the group. The group wouldfacilitate information flow between the consent holder and thecommunity and to relay concerns about the construction and ongoingoperation to the project management team and developing means toaddress and manage those concerns and reviewing the implementationof measures to resolve and managed them. The chair of theConsultative Group to be appointed by the Group Manager –Environmental Services, South Taranaki District Council. Hiringamust fund the direct costs of the establishment and operation of themeetings and is responsible for minutes and distribution.(i) Conditions 105–106 — Complaints register:A register of complaints is to be kept recording complaints received bythe consent holder in relation to traffic, noise, dust, television or radioreception interference, shadow flicker or any other environmentaleffects. The register will be available to staff and authorised agents ofthe South Taranaki District Council and to members of the ConsultativeGroup at all reasonable times upon request.(j) Condition 107 — Decommissioning and site rehabilitation:The turbines must be removed from the site either at the end of theiruseful life or the end of the term of this consent, (35 years) whicheveroccurs earliest, in accordance with a Decommissioning Plan certifiedby the Group Manager – Environmental Services, South TaranakiDistrict Council.(k) Conditions 107–110 — Decommissioning Plan and alternative site:The Decommissioning Plan must be prepared in collaboration withTe Korowai, Ngāti Tu and Ngāti Manuhiakai. If hydrogen productionis to continue at the site after the duration of the consent, the plan mustalso include an alternative site plan at a minimum containing a processto identify an alternative site or sites situated coastward of StateHighway 45 to locate any replacement wind turbines on.(l) Condition 111 — Review and monitoring:One year after the commencement of the resource consent, and atfive-yearly intervals thereafter, the South Taranaki District Council orthe Taranaki Regional Council may give notice of its intention toreview the conditions for the purpose of reviewing the effectiveness ofthe conditions to avoid, remedy or mitigate adverse effects on theenvironment, address unforeseen adverse effects and review theadequacy of the monitoring programmes or management plans requiredunder the conditions.(m) Condition 115 — Long-term peer review monitoring:The results of long-term monitoring required under the consent to beprovided to the South Taranaki District Council in the event it isrequired for peer review. Results of the long-term monitoring to beprovided to Te Korowai, Ngāti Tu and Ngāti Manuhiakai.Treaty and cultural issues — the statutory frameworkTreaty clauses[149] The New Zealand courts have provided guidance on Treaty clauses and theirapplications.[150] In relation to the application of pt 2 of the RMA, including the s 8 Treatyclause, in Environmental Defence Society Inc v New Zealand King Salmon Co Ltd theSupreme Court said:211(a) The purpose is the guiding principle and intended as a guide tointerpretation for those performing functions under the RMA.212(b) The s 5 statement of principle is given further elaboration in theremaining sections in pt 2, namely ss 6, 7 and 8.(c) Section 6 requires decision-makers to "recognise and provide for"listed matters of "national importance". Section 7 ("other matters") ismore abstract, requiring decision-makers to "have particular regard to"the listed matters.213(d) Section 8 (the Treaty clause) requires decision-makers to "take accountof" in the sense that "the principles of the Treaty may have an additionalrelevance to decision-makers". For instance, Treaty principles may berelevant to process, such as applications that a local authority mustcarry out performing its functions under the Act.214 It also reflects thatamong the matters of national importance identified in s 6 are "therelationship of Māori and their culture and traditions with theirancestral lands, water, sights, waahi tapu and other taonga" and otherprotections and s 7 addresses kaitiakitanga.215(e) The RMA envisages the "formulation and promulgation" of a "cascadeof policy documents" each intended to give effect to s 5 and to pt 2more generally.216211 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014]1 NZLR 593.212 At [24(a)].213 At [26].214 At [27].215 At [27].216 At [30].[151] In McGuire v Hastings District Council, the Privy Council considered anappeal concerning the designation of a road through Māori land. Lord Cooke notedthat decision-makers are "bound by certain requirements and these include particularsensitivity to Maori issues."217 The Privy Council there described the culturalprovisions contained in ss 6(e), s 7 and s 8 of the RMA as "strong directions, to beborne in mind at every stage of the planning process."218[152] More recently, in Ngāti Maru Trust v Ngāti Whātua Orākei Whaia Maia LtdWhata J noted there were comprehensive provisions in the RMA for Māori and Iwiinterests "both procedurally and substantively".219[153] Whata J pointed to the provisions of pt 2 concerning the purpose of the RMAand its reference to "cultural well-being" in the context of the sustainable managementof natural and physical resources.220 His Honour said that the legislative and planningscheme under the RMA confirmed widely framed powers to impose conditions underthe Act with a broad scope for consideration of mana whenua and management ofadverse effects.221[154] Whata J pointed out that when making resource management decisions, localauthorities and the Environment Court are not engaged in a process of "conferring,declaring or affirming tikanga-based rights, powers or authority per se".222 Neitherare they empowered to "confer, declare or affirm the jural status of iwi".223 However,the decision-maker was required to "meaningfully respond" when different iwi make"divergent tikanga-based claims" as to what is required to meet tikanga obligations.224[155] This may require evidential findings in respect of the applicable tikanga and achoice as to which course of action best discharges the decision-maker's statutory217 McGuire v Hastings District Council [2000] UKPC 43, [2002] 2 NZLR 577 at [21].218 At [21].219 Ngāti Maru Trust v Ngāti Whātua Orākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR352 at [29].220 At [35].221 At [34].222 At [67].223 At [67].224 At [68].duties,225 to result in a "precisely articulated resource management outcome."226 Thisneeded to be worked out in any individual case having regard to the views of allaffected iwi.227[156] Whata J reiterated that it was the obligation of the decision-maker under theRMA to recognise and provide for the relationship of Māori and their culture andtraditions with their whenua and taonga, to have regard to their kaitiakitanga and "totake into account the principles of the Treaty of Waitangi".228 This required thedecision-maker to determine resource management outcomes based on the evidence,even when there were competing claims. Whata J said:229To ignore or to refuse to adjudicate on divergent iwi claims about theirrelationship with an affected tāonga (for example) is the antithesis ofrecognising and providing for them and an abdication of statutory duty.[157] In summary, the role of the decision-maker is to determine on the evidence theappropriate cultural interests to be recognised in terms of the matter at hand and howto properly acknowledge, recognise and protect them within the RMA framework.This does not provide those affected iwi with a right of veto,230 but the decision-makerhas the obligation to engage with the evidence.231[158] The Treaty clause in s 4 of the Conservation Act requires Te Papa Atawhai | theDepartment of Conservation to "give effect to" Treaty principles in the administrationof that Act. That provision has been the subject of judicial comment on a number ofoccasions. In 2018, the Supreme Court noted that it had "some similarity" to s 9 ofthe State-Owned Enterprises Act 1986, which provided that the Crown shall not act ina manner "that is inconsistent with the principles of the Treaty of Waitangi".232225 At [68].226 At [110].227 At [122].228 At [73].229 At [73].230 At [109], citing Watercare Services Ltd v Minhinnick [1998] 1 NZLR 294 (CA) at 305.231 The evidence establishing the facts alleged should be sufficiently probative: HeybridgeDevelopments Ltd v Bay of Plenty Regional Council [2012] NZRMA 123 (HC) at [51].232 Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR368 at [48] (emphasis added).[159] In Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation, the SupremeCourt said that the obligation in s 4 "to give effect to" Treaty principles was stated in"imperative terms".233 Referring to the leading authority on the application of s 4 todecisions made in respect of concession applications, Ngai Tahu Maori Trust Board vDirector General of Conservation (the Whales case), the Supreme Court adopted theobservations of Cooke P in that case that statutory provisions for giving effect to theprinciples of the Treaty in matters of interpretation and administration should not beconstrued narrowly.234[160] An interpretation to give effect to the principles of the Treaty was required "atleast to the extent that the provisions of the Act and Regulations were not clearlyinconsistent with those principles."235 In the context of commercial whale watchingconcessions, the Treaty principles were relevant and required "active protection ofMāori interests", which required "more than mere consultation with iwi: restrictingthe active protection obligation to consultation 'would be hollow'".236 However, aclaim that a permit should not be granted without the consent of mana whenua (not tobe unreasonably withheld) was said to be "pitched too high".237[161] The Supreme Court said that the application of the Treaty clause as it appliedto a particular decision would depend on which Treaty principles were relevant and"what other statutory and non-statutory objectives are affected".238 In that case theCrown had not satisfied the duty of active protection of Māori interests, failing to treatiwi with sufficient precedence. The refusal to grant a concession to the relevant iwiwas referred back for consideration to DoC. In that case the Supreme Court noted thatthe s 4 Treaty provision should not merely be part of an exercise "balancing it againstthe other relevant considerations".239 The majority took the view that what wasrequired was a process under which "the meeting of other statutory or non-statutory233 At [48].234 At [49] and [50(a)], citing Ngai Tahu Maori Trust Board v Director-General of Conservation[1995] 3 NZLR 553 (CA) [the Whales case].235 At [50(a)].236 At [50(c)], citing the Whales case, above n 234, at 560.237 At [50(b)].238 At [55]. The issue in that case related to a concession opportunity.239 At [54].objectives is achieved, to the extent that this can be done consistently with s 4, in away that best gives effect to the relevant Treaty principles."240[162] More recently, in Trans-Tasman Resources Ltd v Taranaki-WhanganuiConservation Board, the Supreme Court was required to consider the application of aTreaty clause in an appeal granting consent under the Exclusive Economic Zone andContinental Shelf (Environmental Effects) Act 2012 (EEZ Act) relating to marinedischarges.241 The appellant had sought marine consents and marine dischargeconsents in order to undertake seabed mining within New Zealand's exclusiveeconomic zone. The decision-making committee (DMC) of the EnvironmentalProtection Agency had granted the for consents with conditions. The DMC's decisionhad been set aside by the High Court, whose decision was upheld in the Court ofAppeal.[163] The Supreme Court noted that the relevant Treaty clause242 directed thedecision-maker to take into account the effects of the activity on existing interests ina manner that recognised and respected the Crown's obligation to give effect to theprinciples of the Treaty, which was said to be a "strong direction".243 That directioncould only be given effect through the way in which the decision-maker interpretedand applied the relevant factors.[164] The Court went on to say: 244 Treaty clauses should not be narrowly construed. Rather, they must begiven a broad and generous construction. An intention to constrain the abilityof the statutory decision-makers to respect Treaty principles should not beascribed to Parliament unless that intention is made quite clear.[165] The Supreme Court said that the guarantee of tino rangatiratanga in article 2 ofthe Treaty in the context of the marine environment required that the decision-makerconsider the kaitiakitanga of iwi of the relevant rohe and their possible interests and240 At [54].241 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127,[2021] 1 NZLR 801.242 Section 12 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act2012.243 Trans-Tasman Resources Ltd, above n 241, at [149].244 At [151] (citations omitted).claims the Marine and Coastal Area (Takutai Moana) Act 2011 as well as interestsunder the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.245[166] The Supreme Court in Trans-Tasman Resources Ltd stressed the guarantee inart 2 of the Treaty of tino rangatiratanga was more particularly relevant to theconsideration of customary interests as opposed to more abstract Treaty principlessuch as partnership in that case.246 The Court noted that of particular importance wasthe kaitiakitanga of iwi of their relevant rohe.247[167] The Crown's duty under art 2 of the Treaty to actively protect the exercise oftino rangatiratanga248 cannot be avoided by the Crown by delegation to localauthorities or other bodies. They must afford the same degree of protection as isrequired by the Treaty to be afforded by the Crown.249[168] The Supreme Court noted that the iwi parties had emphasised the mauri of thearea. The Court said the proposed activity in terms of tikanga "may indicate thatmaterial harm extends beyond the physical effects of a discharge, or that pollution canbe spiritual as well as physical. In any event the relevant issues need to be consideredunder one heading or the other."250[169] The Supreme Court also agreed that the decision-maker was required to givereasons to justify a decision to override existing interests of this kind.251 However,that requirement must be tempered by the fact that:252 this is an area where it may not be possible to do much more than explainthe balance struck, having set out the evidence for the findings of fact onwhich that balance depends. It also needs to be kept in mind that the DMC isnot a judicial body, but is comprised of lay members. Further, the DMC hasto work within the statutory time limits, and the subject matter which the DMChas to deal with in a case like the present is complex and will often involvemeasuring incommensurable values. In the context then, and as weunderstand the Attorney-General accepts, where there are a number of factors245 At [154].246 At [154].247 At [154].248 See Te Puni Kōkiri He Tirohanga ō Kawa ki te Tiriti o Waitangi: A Guide to the Principles of theTreaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (2001) at 98.249 See at 98.250 Trans-Tasman Resources Ltd, above n 241, at [172].251 At [156].252 At [157].to be taken into account an interest relevantly reflecting Treaty obligations,the decision-maker will need to explain, albeit briefly, the way in which thebalance has been struck.[170] The Supreme Court said the decision-maker's failure there was to properlyengage with the nature of the interests affected, rather than in the absence of reasons.253The decision-maker had stated that it had taken into account the duty of activeprotection of Māori interests but had concluded that the relevant interests of iwi couldbe met through imposed conditions. This included conditions relating to the directionto the applicant to offer to establish and maintain a "Kaitiakitanga Reference Group""with the purpose of, amongst other things, recognising the kaitiakitanga of tangatawhenua and the establishment of the kaimoana monitoring programme, which wouldbe required to operate even in the absence of iwi engagement in the ReferenceGroup."254[171] The Supreme Court concluded that the decision-maker had not effectivelygrappled with the true effect of the proposal for iwi parties nor how the ongoingmonitoring could meet the iwi parties' concern that they would be unable to exercisetheir kaitiakitanga "to protect the mauri of the maritime environment, particularlygiven the length of the consent and the long-term nature of the effects of the proposalon that environment."255[172] The Supreme Court said that what was required was for the decision-maker toindicate an understanding of "the nature and extent of the relevant interests, bothphysical and spiritual, and to identify the relevant principles of kaitiakitanga said toapply."256[173] The decision-maker in that case needed to explain, "albeit briefly", why theexisting interests were outweighed by other factors in that case, or sufficientlyaccommodated in other ways.257253 At [159].254 At [159].255 At [161].256 At [161].257 At [161].[174] The Supreme Court also noted that the decision-maker made an error of law intaking as its starting point that the principles of the Treaty were not directly relevant,but, rather, could "colour" the approach taken.258 The Supreme Court referred thematter back to the EPA for reconsideration, allowing leave for a party to seekdirections from the High Court should that prove necessary.259[175] In some contexts, the protection of Treaty and cultural interests might create abottom line. In Tauranga Environmental Protection Society Inc v Tauranga CityCouncil, Palmer J considered the decision of the Environment Court confirming therelocation of electricity transmission lines across Te Awanui (Tauranga Harbour)which would involve the construction of a large new pole right next to the marae ofthe hapū Ngāti Hē.260 Ngāti Hē was mana whenua and held the "considered,consistent, and genuine view" that the lines and pole would have a significant andadverse impact on an area of cultural significance to them and on Māori values relatedto the Outstanding Natural Features and Landscapes (ONFL). In such circumstances,his Honour said it was not open to the Court to decide otherwise.261 The view of thehapū was "determinative" of findings as to the cultural effects on it.262[176] The High Court reached this conclusion based on its interpretation of the Bayof Plenty Regional Coastal Environment Plan (RCEP), which required adverse effectson the area, as an "area of spiritual, historical or cultural significance" to the Ngāti Hēhapū, to be avoided "where practicable".263 A further policy required adverse effectson the medium to high Māori values of Te Awanui to be avoided unless there were "nopractical alternative locations available," or the "avoidance of effects is not possible"and "adverse effects are avoided to the extent practicable".264[177] Palmer J found on the evidence before the Environment Court that alternativesto the proposal were in fact technically available.265 This meant the avoidance of258 At [161].259 At [229] and [231].260 Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201,[2021] 3 NZLR 882.261 At [65].262 At [65].263 At [129(a)] and [142].264 At [129(b)].265 At [149].adverse effects on the Bay was possible and therefore there were "practical alternativelocations" available.266 The conclusion was that the Environment Court had erred infailing to recognise the cultural bottom line.267 The "practicable" and "possible"threshold determined whether the proposal could proceed at all. The Court quashedthe Environment Court's decision and noted it was "desirable for theEnvironment Court to further consider the issues of fact relating to whether thealternatives to the proposal are practicable, practical or possible".268 His Honournoted:269With goodwill, and reasonable willingness to compromise on both sides, itmay be possible for an operationally feasible proposal to be identified thatdoes not have the adverse cultural effects of the current proposal.[178] The s 6 FTCA Treaty clause has some similarity with the section that was thesubject of the important Lands case.270 The Court of Appeal there was considering s 9of the State-Owned Enterprises Act, which provided:9. Treaty of Waitangi – Nothing in this Act shall permit the Crown to act ina manner that is inconsistent with the principles of the Treaty of Waitangi.[179] In that case, the Crown intended to transfer Crown land to state-ownedenterprises to give effect to the Government's policy of corporatisation. The Court ofAppeal found that the choice by Parliament of the expression "inconsistent with theprinciples of the Treaty of Waitangi" was deliberate.271 Cooke P (as he then was) saidthe Treaty signified a partnership between Pākehā and Māori requiring each to acttowards the other reasonably and with the utmost good faith.272 The relationshipbetween the Treaty partners created responsibilities analogous to fiduciary duties.273The duty of the Crown was not merely passive but extended to act in the protection ofMāori and their use of their lands and waters to the fullest extent practicable.274266 At [150].267 At [146].268 At [163].269 At [164].270 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) [Lands].271 At 659 per Cooke P and 702–703 per Casey J.272 At 664.273 At 664.274 At 664.[180] Cooke P noted that a "broad, unquibbling and practical interpretation isdemanded."275 He went on to say that the wording of s 9 was "plain and unqualified.In its ordinary and natural sense the section had the impact of a constitutionalguarantee within the field covered by the State-Owned Enterprises Act."276 The Courtconcluded that the firm declaration by Parliament that nothing in the Act would permitthe Crown to act inconsistently with the principles of the Treaty of Waitangi "must beheld to mean what it says."277 In that case it meant that the Act restricted the Crown"to acting under it in accordance with the principles of the Treaty. It [became] the dutyof the Court to check, when called on to do so in any case that arises, whether thatrestriction has been observed and, if not, to grant a remedy."278[181] Although there were five separate judgments in that case, all had reached thesame two conclusions, which were put by Cooke P as follows:279 First that the principles of the Treaty of Waitangi override everything elsein the State-Owned Enterprises Act. Second that those principles require thePakeha and Maori Treaty partners to act towards each other reasonably andwith the utmost good faith.That duty is no light one. It is infinitely more than a formality. If a breach ofthe duty is demonstrated at any time, the duty of the court will be to insist thatit be honoured.[182] Words requiring that a decision-maker "give effect to" the principles of theTreaty have been seen as an even stronger imperative to the decision-maker than "notinconsistent with". In Environmental Defence Society Inc v New Zealand King SalmonCo Ltd, the Supreme Court noted the requirement to "give effect to" will be affectedby the specificity or otherwise of the relevant provision to be given effect to:280[80] We have said that the "give effect to" requirement is a strong directive,particularly when viewed against the background that it replaced the previous"not inconsistent with" requirement. There is a caveat, however. Theimplementation of such a directive will be affected by what it relates to, thatis, what must be given effect to. A requirement to give effect to a policy whichis framed in a specific and unqualified way may, in a practical sense, be moreprescriptive than a requirement to give effect to a policy which is worded at ahigher level of abstraction.275 At 655.276 At 658.277 At 660.278 At 660–661.279 At 667.280 Environmental Defence Society Inc v New Zealand King Salmon Co Ltd, above n 211, at [80].[183] Similarly, a provision that a decision-maker is to act in a manner "consistentwith" the principles of the Treaty appears be a stronger direction than to "take intoaccount" as is the formulation under s 8 of the RMA.The legal framework[184] Part 2 of the RMA, to which consent applications under the FTCA remainsubject, comprises: s 5, the purpose of the RMA; s 6, matters of national importance;and s 7, other matters. As already noted, s 8 which appears in pt 2, is replaced by s 6of the FTCA. When considering a consent application for a referred project (as here),a panel must, subject to pt 2 of the RMA281 and the purpose of the FTCA, have regardto:282(a) any actual and potential effects on the environment of allowing theactivity;(b) any measure proposed or agreed to by the consent applicant to ensurepositive effects on the environment to offset or compensate for anyadverse effects that will or may result from allowing the activity;(c) any relevant provisions of any of the documents listed in clause 29(2);and(d) any other matter the panel considers relevant and reasonably necessaryto determine the consent application.[185] I repeat for convenience the purpose of the FTCA, as set out at s 4, as follows: to urgently promote employment to support New Zealand's recovery fromthe economic and social impacts of COVID-19 and to support the certainty ofongoing investment across New Zealand, while continuing to promote thesustainable management of natural and physical resources.[186] The reference to "sustainable management" is borrowed from s 5 of the RMA.That section provides that the purpose of the RMA is to promote the sustainable281 But replacing the Treaty clause in s 8 of the RMA with the s 6 FTCA Treaty clause.282 Schedule 6 cl 31(1) of the FTCA.management of natural and physical resources. Sustainable management is defined ins 5(2) of the RMA as "managing the use, development, and protection of natural andphysical resources in a way which enables people and communities to provide fortheir social, economic and cultural well-being".[187] Two other provisions are directly relevant to considerations of kaitiakitangaand cultural issues. Section 6(e) of the RMA provides that in achieving the statutorypurpose, all persons exercising functions and powers under the RMA in relation tomanaging the use, development and protection of natural and physical resources shall"recognise and provide for" the relationship of Māori and their culture and traditionswith their ancestral lands, water, sites, wāhi tapu and other taonga. Secondly, s 7(a)requires that all persons exercising functions and powers under the Act in relation tomanaging the use, development, and protection of natural and physical resources shallhave particular regard to kaitiakitanga. Other provisions in ss 6 and 7 are also relevantto the sustainability of the environment but less specifically require consideration ofthe cultural landscape.283[188] The substitution of s 8 of the RMA with the Treaty clause in s 6 of the FTCAis reinforced by a direction to the Panel that it "must decline a consent application ifthat is "necessary to comply with s 6 (Treaty of Waitangi)."284 The Panel may alsodecline a consent application on the ground that the information provided by theconsent application is "inadequate to determine the application"285 or if the Panel"considers that granting a resource consent with or without conditions would beinconsistent with s 6 (Treaty of Waitangi).286[189] Section 6 of the FTCA reads:6 Treaty of Waitangi283 For instance, one of the matters of national importance under s 6 is "(b) the protection ofoutstanding natural features and landscapes from inappropriate subdivision, use, anddevelopment". This involves cultural issues in the landscape. The planning documentspromulgated by the local authorities provide more specifically for these issues in chapters on"outstanding natural features and landscapes."284 Schedule 6 cl 31(12).285 Schedule 6 cl 31(8).286 Schedule 6 cl 34(1)(b) (emphasis added).In achieving the purpose of this Act, all persons performing functionsand exercising powers under it must act in a manner that is consistentwith—(a) the principles of the Treaty of Waitangi; and(b) Treaty settlements.[190] Section 6 of the FTCA differs from s 8 of the RMA in that it requires that thedecision-maker must, in achieving the purpose of the Act, "act in a manner that isconsistent with", rather than "taking into account", the principles of the Treaty.Section 6 specifically also requires consistency with "Treaty settlements" in additionto the principles, and the consent application must be declined if it does not complywith the Treaty clause.287[191] Parliament rejected the Select Committee's recommendation that the Treatyclause in what is now s 6 of the FTCA be replaced by s 8 of the RMA.288 Commentsmade in the debate suggest that s 6 was retained to ensure the legislation did not "cutacross Treaty settlements". During the debate the Hon Nanaia Mahuta, then AssociateMinister for the Environment,289 said the s 6 Treaty clause would:290 enable a more productive conversation by region about the way in whichiwi could contribute to economic recovery that would see the creation of jobs,that would also see the protection of the environment, and that would be amore proactive, productive way of trying to initiate that type of focus andconversation at a local level.[192] While those comments must be viewed with caution bearing in mind that theyare merely expressions of a Member of Parliament's own view, nevertheless there wasspecific consideration and rejection of a proposal by the Select Committee to revert tothe wording of the s 8 RMA Treaty clause.291 This supports the contention that theFTCA Treaty clause was intended to provide a firmer direction to the decision-makeron the significance of Treaty principles than does s 8 of the RMA.287 Schedule 6 cl 31(12) of the FTCA288 COVID-19 Recovery (Fast-track Consenting) Bill 2020 (select committee report) at 4.289 Though speaking in her role as Associate Minister for the Environment, the Hon Nanaia Mahutawas also at that time Minister for Māori Development, Minister for Local Government, AssociateMinister for Housing and Associate Minister for Trade and Export Growth.290 (2 July 2020) 747 NZPD 19459.291 Notwithstanding the recommendation of the Environment Committee in its report, above n 288,at 4, to remove the substituted Treaty clause, s 6 of the FTCA was reinstated in its present formby Supplementary Order Paper 2020 (534) COVID-19 Recovery (Fast-track Consenting) Bill2020 (277–2).[193] A number of principles have emerged from the case law in relation to theinterpretation of Treaty clauses which must be borne in mind here. They include that:(a) A liberal interpretation (broad, unquibbling and practical) must beapplied to a Treaty clause. The clause must be given a "broad andgenerous construction".292(b) A statutory requirement to "act in a manner consistent" in a Treatyclause is a "strong direction" to a decision-maker.293 The decision-maker must ensure that consistency with the principles of the Treatyoccurs in not only a procedural way, but also substantively.294 Thatmeans that the principles of the Treaty will have "procedural as well assubstantive implications, which decision-makers must always have inmind".295(c) Consistency with Treaty principles is not an objective to be balancedagainst other objectives.296 However, the application of the Treatyclause as it applies to a particular decision will depend on which Treatyprinciples are relevant and "what other statutory and non-statutoryobjectives are affected."297(d) Meeting of other statutory or non-statutory objectives is to be achievedto the extent that can be done consistently with the relevant Treatyprinciples.298 The implementation of the directive in a Treaty clausewill be affected by what it relates to. For instance, the requirement "togive effect to" Treaty principles will be affected by what it relates to —a requirement to give effect to a policy which is framed in a specificand unqualified way may in a practical sense be more prescriptive than292 This approach to the interpretation of Treaty clauses was adopted by all members of the SupremeCourt in Trans-Tasman Resources Ltd, above n 241, at [8].293 At [149].294 Ngāti Maru Trust v Ngāti Whātua Orākei Whaia Maia Ltd, above n 219, at [29].295 Environment Defence Society Inc v New Zealand King Salmon Co Ltd, above n 211, at [88].296 Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation, above n 232, at [54].297 At [55].298 At [54].a requirement to give effect to a policy which is worded at a higherlevel of abstraction.299(e) In some circumstances, depending on the relevant legislation andplanning documents engaged and related requirements, the"consistently and genuinely held views" of the hapū will bedeterminative.300(f) In particular, the decision-maker must:(i) Identify and properly engage with the nature of the interestsaffected.301(ii) Identify the Treaty principles at play. In the Trans-TasmanResources Ltd case, the Supreme Court stated that thedecision-maker must "indicate an understanding of the natureand extent of relevant interests, both physical and spiritual, andto identify the relevant principles of kaitiakitanga said toapply."302(iii) Explain, even briefly, why the existing interests have beenoutweighed by other factors in the particular case or sufficientlyaccommodated in other ways.303 In other words, thedecision-maker must explain the balance struck.304(g) "Consistency" with Treaty principles does not import a requirement forconsent by mana whenua.305299 Environment Defence Society Inc v New Zealand King Salmon Co Ltd, above n 211, at [80].300 Tauranga Environmental Protection Society Inc v Tauranga City Council, above n 260, at [65].301 Trans-Tasman Resources Ltd, above n 241, at [159].302 At [161].303 At [161].304 At [157].305 Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation, above n 232, at [50](b).The Panel's reportEngagement with the relevant interests[194] Te Korowai and Ngāti Tu had both recognised the good faith in which Hiringahad undertaken its consultation and had offered up conditions to meet the concerns ofthe iwi and hapū in the period leading up to the hearing as well as Hiringa's intentionsto continue to develop those relationships. The Panel noted the importance of thecontinuing relationship established between Hiringa and the iwi and hapū asfollows:306202. As discussed above, the processes of engagement undertaken withrepresentatives of tangata whenua have facilitated opportunities forinvolvement in the development of the CIAs, relationship agreements, iwiresource development and investment, long term relationships, appropriateconditions of consent and enabled the exercise of kaitiakitanga.203. We are satisfied the applicants have consulted all iwi and hapū withan interest in the Project, with a desire to determine how kaitiakitanga can beintegrated into the project, to mitigate cultural effects of the project and to findpartnership opportunities that will benefit tangata whenua.211. We acknowledge the applicants' intention to continue to work closelywith Te Korowai and the mana whenua hapū Ngāti Manuhiakai and Ngāti Tu,to ensure the cultural impacts of the Project are understood and respected, andto build a relationship that results in positive outcomes for the hapū,Te Korowai, the broader community, and the environment. We alsoacknowledge the sincerity in the applicants' response that they have developeda relationship agreement with Te Korowai and signed the agreement thoughthe matter currently sits before Te Korowai's Board to complete. Whether ornot their Board or delegated authority agrees and executes that relationshipagreement has no bearing on the decision we have reached.[195] The Panel granted the consent for 35 years on the conditions attached.307[196] The Panel's reasons were succinct but must be taken in the context of thedecision as a whole and in particular with reference to the CIAs. The reasons for itsfindings were summarised308 and these findings are correlated to the evidence and theinformation it had set out earlier in its report.309306 The Panel Report, above n 4.307 At [248].308 At [199]–[211], set out at [133] and [194] above.309 At [110]–[198].[197] The report dealt with the discrete environmental issues raised such as visualimpacts and ecological effects. The particular concerns of Ngāti Tu had been met,apart from a royalty arrangement. For instance, the riparian planting it sought hadbeen largely agreed to by Hiringa,310 and the freshwater concerns it had expressed hadbeen met by Hiringa by providing an ecological assessment,311 as well as the otherconditions imposed.312 The only real requirement which had not been satisfied wasthe royalty payment.[198] The expressed concerns of Te Korowai, as set out in its comments on theproject in October 2021, were, first, the relocation to an alternative site coastward ofState Highway 45 once the useful life of the turbines had been reached,313 andsecondly, its concern that due to the short timeframe, the Board had not yet sighted therelationship agreement, which was to include Hiringa's offers of multiple mitigationmeasures. Te Korowai had said it would only support the application if the Boardagreed and signed the relationship agreement developed during consultation.314[199] In its subsequent comments on the conditions, Te Korowai said its concernsremained that there had been no alternatives identified in relation to the location of thewind turbines. The Panel accepted on the evidence of Hiringa that there were nopresently available alternative sites which did not affect cultural sites or create otherproblems. The issue of decommissioning and alternative sites was an issue whichTe Korowai and Ngāti Tu had raised in their CIAs. The Panel imposed conditionsdealing with the decommissioning of the turbines at the end of the consent, includinga requirement to relocate to an alternative site, in collaboration with Te Korowai andthe two mana whenua hapū.[200] The conditions set out in the Report covered particular monitoringinvolvement, including on the matters that Te Korowai had submitted should be310 The Panel Report, above n 4, at [144(a)]. Though the issue of double planting remained underconsideration by Hiringa, that is a minor issue and could properly be left for later determinationby the landscapers.311 At [166].312 Appendix 2 condition 38.313 Te Korowai o Ngāruahine Trust "Comment on the Kapuni Green Hydrogen Project" (8 October2021) at 4.314 At 4.included in the conditions, which allowed the hapū and Te Korowai to exercisekaitiakitanga on discrete matters. For instance, Ngāti Manuhiakai and Ngāti Tu wereto receive information in relation to the lizard survey,315 and be provided theopportunity of performing karakia and being on site for earthworks.316 They were alsoto be represented on the ongoing community consultative group for the project.317Hiringa was also required to collaborate with the two hapū and Te Korowai to ensureappropriate plans were in place for the decommissioning of the turbines at the end oftheir useful life or 35-year consent period. An alternative site coastward of StateHighway 45 for the turbines would be required if the Project was to continue beyondthat time.318[201] With the exception of the cultural significance to tangata whenua and theirculture and traditions (including mauri) and sites of cultural and spiritual significance,namely the Maunga, the Panel said the project was consistent with the objectives andpolicies of historic heritage. This was because there were no known features ofsignificance, and the archaeological protocol enabled steps to be taken if such featureswere discovered.[202] Nevertheless, the Panel reached the "unavoidable conclusion" that the Projectwas not fully consistent with all the objectives and policies of the RPS. However, itreferred to its reasons set out on the cultural and heritage values as to why it did notconsider such inconsistency as "problematic".[203] The Panel summarised the nub of the wider issues which were engaged asfollows:319 To the extent that those policies require engagement and consultation theyhave been met. But again the real issue evolved to the substantive recognitionand provision for the relationship of tangata whenua and their culture andtraditions (including mauri) with their sites and areas of cultural and spiritualsignificance – namely the Maunga. The Panel accepts that a potentialinconsistency arises in that regard and makes the same observation made inrespect of the RPS policies on those topics.315 Appendix 2 condition 73 of the Panel Report, above n 4.316 Appendix 2 conditions 90–91.317 Appendix 2 condition 102.318 Appendix 2 condition 110.319 At [233].[204] In turn, the Panel found that the lack of "full consistency" with the objectivesand policies "not problematic" because:(a) The applicants had consulted all iwi and hapū with a desire to determinehow kaitiakitanga could be integrated into the project and to mitigatethe cultural effects of the project and find partnership opportunities thatwould benefit tangata whenua.(b) The applicants had resourced and supported the development of CIAsby iwi and hapū and had genuinely sought to address adverse effects ofconcern where possible. Those mitigation measures were largelysupported by Te Korowai and the recommendations and requestedconsent conditions from Te Korowai had been adopted by theapplicants.(c) The applicants had sought to minimise the impact on the culturallandscape as far as possible, including relocating and reorienting theturbines and reducing the spacing between them.320 The applicants hadsought to implement kaitiakitanga and other cultural practices, and hadidentified sites of potential cultural significance. The proposal avoidedsites and areas of cultural and spiritual significance, with hapūobservation of earthworks and ongoing environmental monitoring anda discovery protocol if previously unknown features werediscovered.321(d) To a large extent the development was constrained to its presentintensity through mitigation measures undertaken by the applicants onconditions of consent which to a large extent satisfied Te Korowai andNgāti Tu.322(e) The number of turbines was limited to four on the site and the turbineswere to be removed after the useful life or 35 years of operation, subject320 At [205].321 At [206].322 At [208].to a decommissioning plan prepared in collaboration to Te Korowai,Ngāti Tu and Ngāti Manuhiakai, including an alternative site plan ifnecessary.323[205] The resource consent application and assessment referred to the engagementand the acknowledgement by the two mana whenua hapū that Hiringa had "taken intoaccount the principles of the Treaty of Waitangi and is committed to continue to workopenly and in good faith with tangata whenua."324 The Panel noted the open andpositive engagement with tangata whenua by Hiringa, and the fact that it actedreasonably and with good faith attempting "to address concerns, where possible, witha view to forming ongoing and constructive long-term relationships".325[206] In summary:(a) In general, the Panel recognised the Te Korowai concerns that theimpact of the turbines "is not de minimis and that the impact will behigh and potentially lead to cumulative adverse cultural effects."326(b) The Panel noted Ngāti Ruanui's emphasis on their connection to theMaunga and the interconnection between the maunga, the w'enua andthe moana. It recorded that Ngāti Ruanui considered the intensity ofthe development proposed eroded this connection and therefore themauri of the ecosystem and the mauri of Ngāti Ruanui.(c) Hiringa had acknowledged the cultural significance of TaranakiMaunga and the visual effects of the turbines and had "sought tominimise as far as practicable the cultural and visual impacts, andproposed a number of mitigation measures."327323 At [209].324 Hiringa Energy Ltd and Ballance Agri-Nutrients Ltd Resource Consent Application andAssessment of Environmental Effects: Kapuni Green Hydrogen Project (18 August 2021) at 45. Inote the assessment's analysis was undertaken under the RMA s 8 Treaty provision, as it wasrequired to under the Act.325 The Panel Report, above n 4, at [117].326 At [156].327 At [162].(d) The Panel acknowledged the commitment by Hiringa to continue towork long-term with tangata whenua in good faith.328(e) The Panel also acknowledged the concerns raised by Te Korowai inrelation to the fast-track consenting process but considered they werenot matters the Panel had jurisdiction over.329Recognition of the principles of the Treaty[207] The Panel turned its mind to the requirement under s 6 of the FTCA that allpersons performing and exercising powers under it must, in "achieving the purpose of[the FTCA], act in a manner that is consistent with" the principles of the Treaty andTreaty settlements.330[208] The Panel, relying on the Te Korowai CIA, identified the principles of theTreaty as defined through the findings of the Waitangi Tribunal and decisions of thecourts as including:331(a) kāwanatanga — the Crown's right to govern and delegate resourcemanagement decision-making powers to local authorities;(b) rangatiratanga — the right of iwi to control, manage and use tribalresources according to their cultural preferences;(c) partnership — a relationship between iwi and central and localgovernment based on the concepts of good faith, mutual respect,reasonable co-operation, and compromise;(d) resource development — the facilitation of iwi resource development;and328 At [117] and [211].329 At [210].330 At [199].331 At [200], referring to the Te Korowai CIA, above n 96, at 15.(e) spiritual principle — recognition of the spiritual relationship thattangata whenua have with the environment.[209] The Panel observed that case law indicated the principles may also includeactive protection, good faith consultation and communication.332[210] The Panel recognised the importance of the principle of rangatiratanga throughits recognition of the effects of the project on the cultural landscape of Ngāruahine.[211] Regard was had to kaitiakitanga as set out in the CIAs and the conditionsinvolving iwi and hapū. This included the specific monitoring provisions andmembership of the community consultative group chaired by an officer of the localauthority and importantly their involvement in the decommissioning plans. The Panelalso recognised the relationship that Hiringa had established with iwi and hapū andtheir acknowledgement of Hiringa's approach and engagement with them.Explaining the balance struck[212] Under sch 6 cl 37 of the FTCA, as soon as practicable after a panel hascompleted its consideration of a consent application or notice of requirement, it mustmake its final decision and produce a written report of that decision.333 The writtenreport of the decision must: (a) state the decision made by the panel; (b) state thepanel's reasons for its decision; (c) include a statement of the principal issues that werein contention; and (d) include the main findings of the panel on those issues.334[213] I have set out above the Panel's summary of its reasons in relation to the Treatyand cultural issues.335 It also adopted the conditions sought by Te Korowai in itsfeedback on the conditions. These provided some monitoring and the provision ofinformation to hapū and iwi in specific areas.332 At [201].333 Schedule 6 cl 37(1) of the FTCA.334 Schedule 6 cl 37(6).335 At [203]–[211] of the Panel Report, above n 4, referred to above at [133] and [194].[214] Importantly, the conditions included a firm mechanism to ensure the removaland decommissioning of the turbines and site rehabilitation. If the Project was tocontinue it was to be relocated to an alternative site.[215] Hiringa was required to prepare the decommissioning plan in collaborationwith Te Korowai and the two mana whenua hapū. A condition required disposal ofthe wind turbines occurred in an environmentally responsible way.336 The Panel foundthat this together with the other conditions would satisfy consistency with Treatyprinciples.337[216] In this case the consents would operate for 35 years. The ongoing positiverelationship between hapū, iwi and the applicant had been properly identified by thePanel as a crucial ongoing component that enabled the Panel to be satisfied that thegrant of the consents was consistent with the Treaty principles. This long-term futurerelationship was to be captured in a written relationship agreement. Due to the shorttimeframe, the relationship agreement, which was to include "multiple mitigationmeasures", had not been signed by the time of the final decision.338 The Panelacknowledged the sincerity in Hiringa's approach and said the fact that the relationshipagreement might not be executed had "no bearing" on the decision reached.339[217] While the general thrust of the terms of the agreement was referred to in thematerial before the Panel, neither the details of the proposed provisions of therelationship agreement nor the details of the kaitiakitanga obligations and "royaltypayment" sought were apparently before the Panel, nor were they before this Court.[218] Ngāti Tu in its CIA had sought recognition as kaitiaki of the rohe.340 Ngāti Tuwere unsuccessful in negotiating the royalty payment it sought for the execution ofthis kaitiakitanga obligation by way of a "royalty payment".341336 Appendix 2 conditions 108–110.337 At [241] and [246].338 Comments of Te Korowai to the Expert Consenting Panel (18 October 2021) at 4.339 At [211] of the Panel Report, above n 4.340 Ngāti Tu CIA, above n 95, at 22.341 At 22. A royalty payment in general would not appear to be an appropriate condition. However,payment for kaitiaki duties may be an appropriate condition.[219] At the time of its decision, the Panel was apparently unaware of the withdrawalof support for the project by Ngāti Tu.Treaty and cultural issues — analysis[220] The approach to interpreting an enactment is set out in s 10 of the LegislationAct 2019, which provides in full:10 How to ascertain meaning of legislation(1) The meaning of legislation must be ascertained from its text and in thelight of its purpose and its context.(2) Subsection (1) applies whether or not the legislation's purpose isstated in the legislation.(3) The text of legislation includes the indications provided in thelegislation.(4) Examples of those indications are preambles, a table of contents,headings, diagrams, graphics, examples and explanatory material, andthe organisation and format of the legislation.[221] As the Supreme Court has stated, "[e]ven if the meaning of the text may appearplain in isolation of purpose, that meaning should always be cross-checked againstpurpose".342 The Court said, in determining the purpose of an enactment, the Courtmust have regard to the legislative context, and the social, commercial or otherobjective of the enactment may also be relevant.343[222] Under s 6 of the FTCA, the Panel, "in achieving the purpose of [the] Act", wasrequired to perform its functions and exercise its powers in a manner "consistent with"the principles of the Treaty and relevant Treaty settlements.344[223] There was no challenge to nor appeal from the Panel's conclusion that thepurposes of the FTCA were met insofar as the promotion of employment to supportNew Zealand's recovery from the effects of COVID-19 and supporting the certaintyof ongoing investment across New Zealand are concerned. The issues on appeal are342 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR767 at [22].343 At [22].344 Emphasis added.relevant to the second part of the purpose, relating to continuing to support thesustainable management of resources.[224] The Panel had adopted the conditions that Te Korowai had suggested inrelation to the proposed conditions. Te Korowai had made those suggestions "withoutprejudice" to its overall position. The other issues in matters such as visual amenityand ecosystem concerns had been isolated and largely dealt with by the Panel or bythe conditions as I have set out above. It made no errors in dealing with those.[225] The outstanding issue for Ngāti Tu was the matter of a royalty payment toNgāti Tu as kaitiaki of the rohe on which the Project is situated. The CIA describedthis as for the purposes of funding the "immediate needs of hapū". The Panel did notrequire any royalty or payment direct to Ngāti Tu in its conditions in this respect.[226] A royalty payment is generally not a matter which is properly the subject of acondition in a resource consent unless agreed upon.345 Failure to impose a royaltycondition does not mean the Panel failed to act in a manner "consistent with" theprinciples of the Treaty. To require that such a payment should be made to hapū mightbe seen as a payment to avoid a veto of the Project by Ngāti Tu.[227] Counsel for Ngāti Tu argued on appeal that the royalty requirement was in thenature of payment for kaitiakitanga responsibilities. The details of the negotiationsover that royalty payment were not before the Panel nor were they before this Court.It was open for the Panel to consider incorporating a specific payment condition forthat purpose beyond the requirement for Hiringa to pay direct costs of the communityconsultative group. Payments for appropriate services in any event may be arguablycovered under that specific condition in any event. The imposition of such arequirement however was a matter within the Panel's discretion and does not give riseto a ground of appeal.345 Section 108AA(1)(a) of the RMA.[228] The more significant issue, as the Panel correctly noted, was the less tangibleeffect of the Project on the wider Ngāruahine cultural landscape. The Panel didproperly engage with the nature of these interests affected.346[229] The CIAs of Te Korowai and Ngāti Tu, and the Panel's consideration of these,are particularly relevant. The CIAs provided significant detail about the hapū, therelationships between hapū and the Ngāruahine cultural landscape, and the concernsthe hapū held about the effects the Project would potentially have on its culturalidentity. The Panel recognised that to iwi, the Ngāruahine cultural landscape describednot only a physical area but also the relationship and interaction between Ngāruahineand the environment.347 It recognised that values within the landscape went beyondthe visual aesthetics or concern for the natural involvement but included "the sense ofspace that underpins Ngāruahine identity".348 Taranaki Maunga was, as the Panelrecorded, the "most significant wāhi tapu" to Ngāruahine, and had a "direct effect ontheir wellbeing, sense of place and identity as Ngāruahine."349[230] The Panel noted that the concerns of Te Korowai and Ngāti Tu had been largelymet in the course of the significant involvement of Hiringa with hapū and iwi. Hiringahad gone to some length to address the concerns raised. In addition to the discretepoints raised and dealt with in the Report and in the conditions, the Project wasproceeding on the basis of the stated intention of Hiringa to "continue to work closely"with Te Korowai and mana whenua to ensure the cultural impacts of the Project were"understood and respected, and to build a relationship that results in positive outcomesfor the hapū, Te Korowai, the broader community, and the environment."350 Thisengagement bears out the comments made at the parliamentary debate on theCOVID-19 (Fast-track Consenting) Bill that there would be a more "proactive,productive conversation at a local level."351[231] The Te Korowai CIA, which the Panel canvassed in detail, noted the supportthat Hiringa had expressed not only for the mitigation measures for cultural effects but346 See Trans-Tasman Resources Ltd, above n 241, at [159].347 The Panel Report, above n 4, at [153].348 At [153].349 At [158].350 At [211].351 See [191] above.also for exploring opportunity for hapū employment during construction as well aslong-term employment, installation of solar energy systems in the marae, materialsupport for education, identification of work experience for Ngāruahine students and(though declined) the opportunity to invest in the hydrogen project.352 The CIA alsorecorded other initiatives which were being discussed with Hiringa.353 The RMA (viathe FTCA in this case) allows for such compensation to be taken into account.354[232] In the timeframe, the written relationship agreement had not been progressedand the constructive relationship with iwi — which was crucial to the continuedsupport of iwi — remained to be finalised. Te Korowai said the timeframe preventedit from ensuring it advanced "the economic, social, cultural, and environmentalwellbeing of Ngāruahine".355 While it may have been preferable to have such anagreement in place, the Panel had sufficient information before it to satisfy itself thatin granting the consents it was acting in a manner consistent with the principles of theTreaty.[233] This application particularly engaged the principles of rangatiratanga — theright of iwi to control, manage and use tribal resources according to their culturalpreferences — on the one hand, and kāwanatanga — the Crown's right to govern anddelegate resource management decision-making powers to local authorities, or in thiscase the Panel — on the other.[234] The rangatiratanga of Te Korowai and the hapū was recognised andincorporated into the process in a number of ways. For instance, the CIA was preparedagainst the draft iwi management plans and values of Te Korowai as well as its draftkaitiaki plan. In addition, the nominee of Te Korowai was appointed as a member ofthe Panel. At the request of Te Korowai, the deadline for receipt of its comments onthe conditions was extended to 25 November 2021. Though subsequently they were352 Te Korowai CIA, above n 96, at 19–20.353 At 19–20.354 Schedule 6 cl 31(1)(a) of the FTCA.355 Letter from Paula Carr (Pouwhakarae of Te Korowai o Ngāruahine Trust) to the Expert ConsentingPanel regarding its comments on the draft conditions for the Kapuni Green Hydrogen Project(30 November 2021) [Te Korowai comments on draft conditions] at 1.not ultimately received until the end of November, the Panel nevertheless took thosecomments into account.356[235] Te Korowai, Ngāti Tu and Ngāti Manuhiakai were to be represented in thecommunity consultative group chaired and administered by South Taranaki DistrictCouncil. Te Korowai's relationship with the local authority in relation to the Project,therefore, was ongoing.[236] The preferences of iwi and hapū as they related to the specific land affected bythe Project, but, more importantly, as they related to the cultural landscape affected,were set out in the CIAs, which expressed the elements of rangatiratanga involved.357[237] In the circumstances, the principle of kāwanatanga was engaged by the referralby the Crown of the application for determination by the Panel. The Panel was thenrequired to exercise of kāwanatanga by applying the requirements of the FTCA.[238] The Panel was required to assess the consistency of the proposal with relevantTreaty principles within the statutory framework. The applications did not satisfy allthat iwi and hapū had sought in terms of tino rangatiratanga, but the Panel was requiredin achieving the purpose of the Act, to exercise its powers, in a manner "consistentwith" the principles of the Treaty and Treaty settlements. The Treaty clause and relatedcultural provisions do not require the consent of iwi and hapū to the Project to achievesuch consistency.[239] As Whata J noted, resource management decision-makers, in theirdeterminations of consent applications, are not empowered to (nor do they) "confer,declare or affirm the jurisdiction of iwi"358 but must nevertheless meaningfullyrespond within the framework of the legislation. The Panel was not able to go beyondthe FTCA framework but was required to determine the application based on theevidence it had before it.356 Minute of the Kapuni Green Hydrogen Project Expert Consenting Panel (M-5), 10 November2021.357 More particularly set out at [132]–[148] above.358 Ngāti Maru Trust v Ngāti Whātua Orākei Whaia Maia Ltd, above n 219, at [68].[240] In the context of achieving the particular purposes of the FTCA, it was open tothe Panel to be satisfied that in granting the consents it was acting in a mannerconsistent with the Treaty principles. Within the overarching legislative framework,and the particular limitations of the fast-track consenting scheme, it made no error inreaching that conclusion.[241] The CIAs were resourced by Hiringa but prepared by the relevant iwi or hapū,and the statutory process allowing submissions on the application and on the proposedconditions was followed. It is relevant to consistency with Treaty Principles in relationto process that the CIAs had been prepared against the Te Korowai draft kaitiaki plan,which had not yet been submitted to the relevant local authority for adoption and usein Council resource consent processes. I also note in this regard that a nominee ofTe Korowai was on the Panel, which reflected the importance of iwi representation inresource consent decision-making. The Settlement Act itself provided for both ofthose measures in relation to local authority decision-making.[242] The point of appeal raised in relation to process was that there were no reasonsgiven for not holding a hearing. I deal with that issue below and find that the Panelmade no error in process in that regard.Reasons — striking the balance[243] In Trans-Tasman Resources Ltd, the Supreme Court noted that thedecision-maker in that case was required to give reasons.359 However, thisrequirement was tempered in that case by the fact that it was an area where it may nothave been possible to do "much more than explain the balance struck, having set outthe evidence of the findings of fact for which the balance is struck."360 The SupremeCourt also referred to difficulties that may arise in the context of balancingincommensurable values with particular reference to s 5(2) of the RMA, that is thepurpose of promoting the sustainable management of resources as it relates to social,359 Trans-Tasman Resources Ltd, above n 241, at [156].360 At [157], referring (at n 251) to the authorities: Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546(CA) at [81]; and Harry Woolf and others De Smith's Judicial Review (8th ed, Thomson Reuters,London, 2018) at [7-105]–[7-106]. See also Belgiorno-Nettis v Auckland Unitary PlanIndependent Hearings Panel, above n 21.economic and cultural wellbeing, where there is no common measure to undertake thatbalancing.361[244] The Panel did engage with the interests expressed and showed anunderstanding of them. It identified the principles of the Treaty which had beenengaged. It recognised the concerns that had been set out in the CIAs, which presentin-depth analyses of the cultural concerns of the appropriate iwi and hapū. The Panelwas entitled to and properly did rely on those reports. The requirements of thelegislation as to reasons to be set out in the report did not require the Panel to set outits reasoning in more detail than it did. Rather, the Panel set out its findings andexplained how it struck the balance within the framework of the FTCA.[245] This was not a case such as in the Tauranga Environmental Protection Societycase, where the views of the hapū as to the cultural effects on it were "determinative"and the decision-maker had not satisfied itself (as it was required to under theprovisions of the relevant coastal planning instruments) that the avoidance of thoseeffects was not practicable.362[246] The Minister had decided this was an appropriate matter to be referred to thePanel. Such a referral required the Panel to work within that legislative framework.The Panel, operating within the legislative framework, was exercising kāwanatangaand powers within that statutory constraint, and was obliged to act in a manner thatactively protected the exercise of tino rangatiratanga to the same degree of protectionas required by the Treaty of the Crown.363 The Panel pointed out the concerns ofTe Korowai in particular were with the legislation and its fast-track design.364 AsTe Korowai stated in its comments to the Panel on the draft conditions:365The [fast-track] process is, in effect, a direct assault on the rights negotiatedin the [Settlement Act] and the yet to be completed Taranaki Maunga361 Trans-Tasman Resources Ltd, above n 241, at [157] and n 253.362 Tauranga Environmental Protection Society Inc v Tauranga City Council, above n 260, at [65],[143] and [146], with reference to the Bay of Plenty Regional Coastal Environmental Plan, NewZealand Coastal Policy Statement 2010, National Policy Statement on Electricity Transmissionand Bay of Plenty Regional Policy Statement.363 Refer to the discussion above at [167] relating to the need for delegated bodies to afford the samedegree of protection as is required by the Treaty of the Crown; and see in this respect Te PuniKōkiri, above n 248, at 98.364 The Panel Report, above n 4, at [210].365 Te Korowai comments on draft conditions, above n 355, at 1.Settlement. Te Korowai o Ngāruahine Trust has a responsibility to ensure thatit advances the economic, social, cultural, and environmental wellbeing ofNgāruahine. The fast-track process prevented us from doing this.[247] I now turn to consider the particular points raised on appeal.Particular points on appealFailing to consider the cultural landscape of Ngāruahine as a whole[248] As I have noted, in particular at [102]–[110] above, the Panel recognised theconcerns of Te Korowai about the effect of the Project on the Ngāruahine culturallandscape, and emphasised that Te Korowai had made its expectations around theprotection of the Ngāruahine cultural landscape clear.[249] The Panel had acknowledged what the Ngāruahine cultural landscape meant tothe uri, whānau and hapū of Ngāruahine. The Panel had significant material before it,much of which it referred to in its report, recognising that the cultural landscapeincludes more than the objective physical reality. It derives aesthetic qualities andmeaning from other sources, informed by knowledge, memory and cultural values andassociations with a place.[250] Planning documents submitted in support of Hiringa's resource consentapplications also referred to the impact on the cultural landscape. The "Landscape andVisual Effects Assessment", tendered in support of the resource consent applications,for example, in its analysis identified four additional marae to be considered as part ofaddressing potential cultural landscape effects.366 That assessment had earlier notedthe "special value" the maunga and its "connection and influence on the widerlandscape" held to Taranaki iwi, and that "siting of the turbines in key viewshaftsacross the ring plain will result in adverse cultural landscape effects."367 It is worthnoting the following comments from the landscape and visual assessment, which thePanel had before it:368366 Boffa Miskell Kapuni Green Hydrogen Project: Landscape and Visual Effects Assessment –Prepared for Hiringa Energy (8 June 2021) at 31.367 At vi.368 At ii.The Project will have an adverse effect on landscape character when theturbines are considered as a small cluster of individual elements, however,when they are considered in broader context of the simple 'geometry' of thering plain and the wider South Taranaki district, the effects on landscapecharacter are attenuated.The turbines will have an adverse effect on landscape character and while thiswill be relatively limited, it does affect the associative values, especially thoseexpressed by Nga iwi o Taranaki in relation to the maunga and its connectionand influence on the wider landscape.[251] Hiringa was aware of the effects the Project would have, and the Panelrecognised the measures taken, or agreed to be taken, by Hiringa to mitigate the effectsas far as possible.[252] Added to this, the Panel reflected on the significance of the cultural landscapeof Ngāruahine as a whole in its detailed and comprehensive consideration of the CIAsof both Te Korowai and Ngāti Tu. It understood the effects on the cultural landscapewould not be de minimis but that Hiringa had sought to minimise the impact on thecultural landscape as far as possible, including relocating and reorienting the turbinesand reducing the spacing between them.369[253] While the Panel noted that the Project was not "fully consistent" with all theobjectives of the RPS, that was not necessarily required. Rather, it was consistencywith the Treaty principles and settlements in achieving the purpose of the Act whichwas required.[254] The Panel, on the basis of all the evidence before it, accepted that the impactson the cultural landscape would be significant, but it was satisfied that the granting ofthe consents subject to the conditions imposed in accordance with the preferences ofthe mana whenua hapū met the legislative requirements under the FTCA. The Paneldid not err in reaching this conclusion.369 The Panel Report, above n 4, at [205].Failure to consider the precedential effect to be an adverse effect that could not bemitigated[255] Te Korowai raised concerns that there would be potential for precedent if theProject and technology were scaled up and extended. The Panel imposed conditionslimiting the number of turbines to four and requiring them to be removed and/orrelocated at the end of their useful life or at latest the consent period of 35 years.[256] On appeal, Te Korowai argued that these conditions did not sufficiently dealwith their fears that the project created a precedent for other operators. Te Korowai inits submissions indicated that it was seeking a prohibition of such developments in thearea.[257] However, that is a matter for it to pursue with the relevant local authorities.For the purposes of the Panel's decision, any future consent applications would berequired to consider the environment,370 and a cumulative effect analysis would thenbe carried out.371[258] The Panel was required to assess the present application on its merits as it did,taking into account the limitation applied on the number of turbines (four) and theduration of the consent together with the decommissioning conditions. The Panelmade no error under this head.Reasons were not required for determining a hearing was not required on any issue[259] The Panel said it had decided that a hearing "was not required on any issue".372Te Korowai and Ngāti Tu submitted that specific reasons were required for thedecision not to hold a hearing. There had been no invitation to the parties to providetheir views on whether a hearing was needed or not. Counsel submitted a hearingwould have provided significant clarification of key issues for the hapū and iwi whichit says were not "apparently clear" in the minds of the Panel. They argued the interestsof the hapū and iwi of the rohe based on both Treaty principles and the relevant Treaty370 See Royal Forest and Bird Protection Society of New Zealand v Buller District Council (No 1)[2013] NZHC 1324, [2013] NZRMA 275 at [32].371 At [68]. "Effect" includes any cumulative effect: RMA, s 3 definition of "effect".372 The Panel Report, above n 4, at [38].settlements were key to this application. Therefore, not having a hearing removed akey opportunity for tangata whenua to articulate the nature of their opposition, relevanttikanga and the nature of kaitiakitanga which was at play here.[260] In Murphy v Rodney District Council, Baragwanath J explained that, as hadbeen endorsed by the Privy Council in R v Taito, "the duty of a decision-maker to givereasons" was required to enable an appellate Court to understand the "intellectualroute" taken by the decision-maker, "which provides some protection against error",and because "failure to give reasons means that the lawfulness of what is done cannotbe assessed by an appellate Court".373 As his Honour observed, however, "[t]hereasons may be succinct; in some cases they will be evident without expressreference."374[261] More recently this Court set out the standard for the duty inMaungaharuru-Tangitū Trust v Hastings District Council as follows:375The standard for the duty to give reasons depends on the particularcircumstances and the statutory context. Where there is a straightforwardfactual dispute, no more may be required than simply stating whether theJudge believes one witness over another.376 Where the dispute is morecomplex with reasons and analysis on either side, the Judge must engage withthe issues, analyse the evidence and make reasoned findings. Reasons mightbe abbreviated and evident without express reference.377 But generally,reasons ought to state the material findings of fact and evidential support andmust tell the parties why they lost or won.378 The reasons should be sufficientto enable those affected to understand why the decision was made and to besatisfied it was lawful.379Whether or not sufficient reasons are given depends on the legal question, andcomplexity of the legal issue. In some contexts a court or tribunal is requiredto engage in a particular analysis. It is only by the reasons given that it can beseen that the required analysis has been undertaken. 373 Murphy v Rodney District Council [2004] 3 NZLR 421 (HC) at [25].374 At [25].375 Maungaharuru-Tangitū Trust v Hastings District Council [2019] NZHC 2576 at [21]–[22].376 Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 (CA) at 382.377 Housing New Zealand v Auckland Council [2018] NZHC 288, (2018) 20 ELRNZ 441 at [81].378 Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR 496 at [70], citing Stanley DeSmith, Harry Woolf and Jeffrey Jowell Judicial Review of Administrative Action (5th ed, Sweet &Maxwell, London, 1995) at [9-049].379 At [73], citing Lewis v Wilson & Horton Ltd, above n 360, at [80].[262] It is also arguable that Treaty principles may support a right to be heard. InRaukawa Settlement Trust v Waitangi Tribunal, for example, the Court referred to thetikanga of "natural justice" reinforcing a right to a hearing in the Waitangi Tribunal.380[263] In this case, the Panel gave adequate reasons for its substantive decisionrecognising the Project would achieve the purposes of the FTCA to promoteengagement and ongoing investment while continuing to support sustainablemanagement.381[264] In relation to whether reasons should be given for not holding a hearing, it isrelevant that the FTCA provides that there is "no requirement for a panel to hold ahearing" and that no person had a right to be heard by the panel.382 Furthermore, whileunder sch 6 cl 37(6) written reasons were required from the Panel for its decision asto the consent application, the legislation contains no statutory requirement to givereasons for not holding a hearing. This is consistent with the emphasis on time-limiteddecision-making under the FTCA. The position in in contrast with the requirementsin Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, where thehearing panel was specifically required to give reasons and did not do so.383[265] The provisions of the FTCA were directed at enabling decision-making onapplications within short time frames. Section 10 required all "practicable steps to usetimely, efficient, consistent and cost-effective processes" proportionate to thefunctions being performed. A general requirement to provide reasons for a proceduraldecision to hold a hearing would run counter to the "fast-track" nature of the FTCA.That is not to say a duty to give reasons would not arise in some circumstances.384However, it did not in this case. Indeed, no party made any specific request for ahearing.[266] I am satisfied the Panel made no error in determining that a hearing was notrequired on any issues without giving reasons.380 Raukawa Settlement Trust v Waitangi Tribunal [2019] NZHC 383, [2019] 3 NZLR 722 at [69].381 Section 4 of the FTCA.382 The Panel Report, above n 4, at [38].383 Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel, above n 21.384 For instance, in Raukawa Settlement Trust v Waitangi Tribunal, above n 380, at [69], the Courtreferred to the "tikanga of natural justice".Delegation to local authority[267] It was submitted on appeal that the Panel acted inconsistently with theprinciples of the Treaty by effective devolution of decision-making to the Councilunder the RMA.[268] If a condition leaves the settling of detail to a delegate, to be lawful it that canonly be to certify, using that person's skill and experience, rather than to act as anarbitrator to judge how a matter is to be provided for.385 The principle is commonlyinvoked in relation to management plans, where the detailed measures to achieve thestandards set in the conditions will be addressed after consent is granted. Theconditions must clearly indicate the standards to be achieved by the consent holder inorder to be valid.[269] In this case, the condition clearly indicated that there was to be a transition tohydrogen over five years and that would be monitored by the council. This was apermitted role for the local authority under the RMA.386 It did not amount to adelegation of decision-making. The end requirement was transition to use hydrogenfor transport. The role of the local authority was to monitor and review the conditionsto ensure this was achieved, by ensuring Hiringa kept to that transition.[270] I am satisfied the inclusion of an ongoing role for the South Taranaki DistrictCouncil in monitoring and reviewing the conditions did not amount to an unlawfuldelegation of decision-making.Conclusion on cultural issues[271] It is well established law that iwi do not have a right of veto of a project.387However, as William Young and Ellen France JJ commented in Trans-TasmanResources Ltd, the decision-maker is required:388385 Turner v Allison [1971] NZLR 833 (CA).386 Section 128 of the RMA, which applies by virtue of s 12(10) of the FTCA.387 See above at n 230.388 Trans-Tasman Resources Ltd, above n 241, at [161] (footnotes omitted). to indicate an understanding of the nature and extent of the relevantinterests, both physical and spiritual, and to identify the relevant principles ofkaitiakitanga said to apply.[272] The decision-maker must show it has engaged with the cultural issues raisedand satisfied itself that the adverse cultural effects which would prevent "consistency"with the principles of the Treaty have been addressed.[273] The purpose under s 4 of the FTCA was to "urgently promote employment tosupport New Zealand's recovery from the economic and social impacts of COVID-19and to support the certainty of ongoing investment continuing to promote thesustainable management of natural and physical resources."[274] I am satisfied that in the circumstances of this case, the Panel in achieving thepurpose of the Act acted, in process and in substance, in a manner "consistent with"the principles of the Treaty and Treaty settlements, as it was required to under s 6 ofthe FTCA. The assessment of the Panel must take place within the legislative schemebased on the evidence before it at the time it heard the application. I am satisfied thePanel addressed all concerns of and material provided by, in particular, Te Korowaiand Ngāti Tu adequately and imposed appropriate conditions accordingly.Second major issue — environmental issues[275] The second major area of appeal related to environmental issues. This relatedto the transition conditions put in the Particularised Points on Appeal as:Failing to consider the precedent effect of the proposal to be an adverse effect overthe life of the project that could not be mitigated; and finding that a critical reason forapproving the project was 100 per cent transition to use of "green hydrogen" fortransport[276] Additionally, under this heading is the issue of the end product, to which I referbelow.[277] Greenpeace, which took primary carriage of these arguments, said that acritical reason for approving the project was that there was to be a 100 per centtransition to the use of "Green Hydrogen" from use for urea production to use fortransport over five years. It argued that the transition was a condition of support ofthe project by Te Korowai and Ngāti Tu.[278] Essentially, Greenpeace submits that the conditions relating to the transitionfrom use for urea production do not provide a hard direction that the 100 per centtransition was to occur within five years, which was a critical reason for approving theapplication.[279] The Panel recognised the importance of this transition to the fast-track consentapplication. It said in its report:61. Critically, the proposal is that over a five-year period the utilisation ofgreen hydrogen will transition from 100% urea production (i.e. 7,000 tonnesper year) to entire use for fuel cells as the electric fleet is expected to increase.[280] In its assessment of environmental effects section, the Panel said:237. Green hydrogen production is planned to transition from 100% ureato the transport market over a 5 year period as the fuel cell electric vehiclesmarket increases, with the intention to increase electrolysis capacity oncegreen urea production falls below a minimum threshold.238. Absent that transition (i.e. if the proposal were simply to continueproducing urea) it is difficult to see how the fast-track consenting could bejustified. The proposal may or may not have succeeded as an ordinaryapplication under the Resource Management Act. Therefore, given thereliance on transition to justify fast-tracking, it is appropriate to ensure thatany consent matches that justification, and is reflected in the appropriateconditions.[281] The relevant transition conditions imposed are as follows:(a) Conditions 112–113: transition progress reportsThat over a five-year period, specifically by 30 June 2023 and eachanniversary thereafter until 30 June 2028, to provide a written report tothe South Taranaki District Council as to progress in achieving thetransition of green hydrogen production from utilisation entirely for thepurposes of urea production to utilisation in the transport market.(b) Condition 114: Council reviewThat the South Taranaki District Council may, pursuant tos 128(1)(a)(iii) of the RMA, review the conditions above at any timeafter the five-year period for the purpose of assessing progress of thetransition and/or to propose new conditions to ensure the transitionprogresses or continues.[282] It is also relevant to note at this point that Condition 1 provided:(1) The construction, operation and maintenance of the Kapuni GreenHydrogen Project shall be undertaken in general accordance with theinformation provided in "Kapuni Green Hydrogen Project ResourceConsent Application and Assessment of Environmental Effects" datedAugust 2021 and any other documentation relevant to the resourceconsent applications. In the event of any conflict or discrepancybetween these documents and the conditions of this resource consent,the conditions shall be determinative.[283] These conditions on the transition were among those circulated in draft forcomment by the parties. Hiringa in its response to the draft conditions sought anamendment to allow it more flexibility in the transition. In this regard, however, thePanel said:239. The applicants raised a concern that part of the condition proposed bythe Panel introduced an element of uncertainty to the project by enabling theSouth Taranaki District Council to impose fresh conditions if transition wasrendered difficult in the prevailing market conditions. The Panel has reviewedthis, but does not consider the condition required further amendment. Ascurrently framed, it will be open to the consent holder to refer the marketconditions in exchanges with the Council in the review process as a factor itregards as of significance to any consideration of further conditions.[284] Osborne J recently outlined the approach to interpretation of resource consentsin Speargrass Holdings Ltd v van Brandenburg.389 His Honour said:[117] The wording of resource consents is to be interpreted according totheir plain ordinary meaning, having regard also to the context in which thewords are used. That includes the statutory regime of which the consent wasa part of, the relationship between the parties and the terms of the applicationitself.390 In other words, the scope of the consent is able to inform theinterpretation of the condition and vice versa.391389 Speargrass Holdings Ltd v van Brandenburg [2021] NZHC 3391 at [117]–[118].390 Red Hill Properties Ltd v Papakura District Council (2000) 6 ELRNZ 157 (HC) at [47].391 Marlborough District Council v Zindia Ltd [2019] NZHC 2765, (2019) 21 ELRNZ 364 at [100].[118] In the interpretation exercise, the Court may have regard to:392(a) specific information included in the application under s 88RMA (whether explicitly referred to or not);(b) additional information provided if required by the consentauthority under s 92 RMA (whether explicitly referred to ornot); and(c) any relevant background information which may assist thedecision maker to determine what the consent authority usingthe words might reasonably have been understood to mean bythem.[285] The resource consent application recorded that the intention was to complete atransition within five years. However, the exact timeframe was dependent on thegrowth of demand in the transport sector. This was recognised by the Panel in itsreference to the "expected" increase in the electric fleet. The five-year period was notan absolute time limit.[286] In any emerging alternative technology, there will be some uncertaintyparticularly in the timeframe for implementation. The fact itself that hydrogen storage,loadout and refuelling facilities were part of the Project indicates a strong commitmentby Hiringa to move to hydrogen use for transport.[287] Importantly, the conditions as framed ensure that the transition over five yearswill be monitored by the South Taranaki District Council, which has the ability toamend the conditions to progress the transition. The only purpose for which the localauthority is able to review the condition is to ensure that that transition progresses orcontinues, and any condition imposed by the local authority under s 128(1) is to ensurethe maintenance of the transition.393[288] The transition condition is certain, not unreasonable, nor ultra vires the powersof the local authority and therefore is valid as a condition.394 The FTCA provides forthe relevant local authority to review consent conditions imposed by an Expert392 Red Hill Properties Ltd v Papakura District Council, above n 390, at [42] and [44]–[45].393 While the review of a local authority is specifically permitted under s 128 of the RMA, it isincorporated in s 12(10) of the FTCA.394 See generally Helen Atkin and others Brookers Resource Management (online loose leaf ed,Thomson Reuters) at [A108.02].Panel.395 In particular, s 128(1) of the RMA permits a local authority to review theconditions of a resource consent for any purpose specified in the consent.[289] As Ngāti Tu had recognised in its CIA, the transition to hydrogen-poweredvehicles was positive but also "the viability is something not totally known but it willbe for Hiringa to evaluate over time."396 Te Korowai also referred to its support forthe generation of renewable energy from the wind and did not make its supportconditional on transition to the transport sector within five years.[290] In response to the draft conditions proposed, Hiringa submitted that it was"commercially incentivised" to ensure the transition but went on to say it did not havecomplete control over how quickly the hydrogen transport market developed. For thatreason, it sought flexibility and in particular objected to "the imposition of unknownconditions beyond reporting requirements" due to creating uncertainty for the project.The Panel refused to amend the condition to allow that flexibility.397[291] The Panel did not leave it to Hiringa to evaluate the speed of transition, assuggested by Ngāti Tu. While the transition clause did not apply a "hard limit", theapplication was directed at moving the transition of the hydrogen to transport eitherentirely or substantially over five years. The application's provisions wereincorporated as a condition by Condition 1. The resource consent application itselfand the assessment of environmental concerns referred to this transition in a numberof places. The consent application, for instance, noted that the green hydrogenproduction was planned to transition from 100 per cent urea to the transport market"over a five year period as the fuel cell electric vehicles market increases, with theintention to increase electrolysis capacity once green urea production falls below aminimum threshold",398 and refers on a number of occasions to the goal oftransitioning the green hydrogen use to heavy transport "within five years".395 Section 12(10).396 Ngāti Tu CIA, above n 95, at 23.397 Applicant Comments on Draft Conditions of Consent, attached in a letter from Catherine Clennett(Chair of Hiringa Energy Ltd) and Andrew Clennett (CEO of Hiringa Energy Ltd) to the ExpertConsenting Panel (17 November 2021) at proposed condition 117.398 Hiringa Energy Ltd and Ballance Agri-Nutrients Ltd Resource Consent Application andAssessment of Environmental Effects: Kapuni Green Hydrogen Project (18 August 2021) at 36.[292] The transition clause allows some appropriate leeway for the period oftransition. To ensure the transition occurs as proposed by Hiringa in the application,it was incorporated by reference in Condition 1. That condition requires the Projectto be undertaken in general accordance with the information in the consent applicationand documentation relevant to that.399 The important factor was that the transitionwould be from the product being used "entirely" in urea production to hydrogen usewithin five years. With the review by the local authority, the Panel left in place anappropriate mechanism to monitor that transition.[293] I am satisfied the Panel made no error in finding the transition was a criticalreason for approving the Project, and that it provided for that transition appropriatelyin the conditions.Failure to consider the end use of urea and related environmental effects[294] This ground of appeal is based on the requirement for the Panel to have regardto the actual and potential effects on the environment of allowing the Project.400[295] The hydrogen produced by the Project initially would be used for theproduction of urea to be for use as fertiliser. Hiringa planned to transition the hydrogenfrom urea production to fuel for the transport sector over five years. Greenpeacesubmitted that the Panel had failed to properly consider the end use of the fertiliserand the environmental effects associated with that use by the fertilisation of pastureand thus grazing of sheep and cattle and so the production of greenhouse gasemissions. It said the Panel failed to specifically consider the environmental effectsof the urea fertiliser should the Project never transition to the production of hydrogenfuel or that transition be delayed.[296] Greenpeace also criticised the economic impact assessment provided by theHiringa in the application which suggested that domestic urea production woulddisplace the need to import urea but it did not state that it would do so entirely.Greenpeace said that the economic impact assessment made no effort to model what399 Appendix 2 condition 1 of the Panel Report, above n 4.400 Schedule 6 cl 31(1)(a) of the FTCA.might be the effect of the affordable urea for domestic fertiliser use, nor did it attemptto explain the effects in the context of the consistent upward trend in the use of ureain New Zealand.[297] As the Panel described the position, Greenpeace submitted to the Panel that the"urea production as an end use outweighed the claimed environmental benefits of theproject unless, or until the end use of green hydrogen production was entirely for thetransport market."401 The Panel noted that the assessment of "whether an end use thatis otherwise lawful is a disenabling factor" had its complexities. It noted:402(a) the current plant is the ammonia manufacturing plant in New Zealandand relies on electricity from the grid and natural gas from nearby gasfields;(b) Hiringa's assertion that urea produced locally offsets urea that wouldotherwise be imported from production methods that have higheremissions;(c) the 7,000 tonnes of urea produced annually by this project from greenhydrogen would only be 1.15 per cent of the total urea used inNew Zealand; and(d) the proposal for transition for the hydrogen from 100 per cent to ureato fuel over the five-year period was critical.[298] In light of the small percentage of annual urea used immediately attributableto the Project and the intended transition, the Panel considered there was a danger thatto decline the application on the basis of the end use of urea would be to "throw thebaby out with the bathwater" relative to the "much more ambitious and significant"environmental gains connected with hydrogen fuel production for the increasing useof hydrogen fuel in heavy transport.403401 As noted at [56] of the Panel Report, above n 4.402 At [59]–[61].403 At [62].[299] The Panel therefore concluded that while the end use of urea had "somerelevance to the process of transition", this was not a reason to deny the availability offast-track consenting, or to decline consent itself.[300] On appeal, Greenpeace submitted that the Panel failed to take into accountrelevant considerations as required by sch 6 cl 31 because it failed to properly haveregard to the environmental effects of the synthetic nitrogen (urea) fertiliser producedby the project being used on farms. Greenpeace also said that the Panel failed toproperly take into account the effects of climate change under s 7(i) and failed toadequately assess the impacts of the Project on climate change in circumstances wherethe Project transition from fertiliser production to fuel production was not certain.[301] Greenpeace submitted that without any definite commitment to transitioncompletely within five years, and the vague evidence on the potential market for suchfuel, it was logically impossible for the Panel to weigh up the environmental benefitsof hydrogen fuel use against the environmental harms of urea use because it had noway to know which of those uses would dominate the life of the Project.[302] The consideration of the end use of a product resulting from a resource consenthas been the subject of consideration in a number of recent decisions, both inNew Zealand and in the England and Wales courts.[303] In R (Finch) v Surrey County Council, the Court of Appeal of England andWales indicated that the assessment of "downstream" greenhouse gas emissions fromthe future combustion of refined oil products said to emanate from the developmentsite fell to be considered on the basis of whether there was a sufficient degree ofconnection between the effects of the end use product and the project.404 In that casethe downstream effects could reasonably be seen as far removed from the proposeddevelopment itself and not causally linked to it because of the series of interveningstages between the extraction of the crude oil and the ultimate generation of thoseemissions.405 The crude oil extracted at the application site could only find its way to404 R (Finch) v Surrey County Council [2022] EWCA Civ 187.405 At [66].the various uses after it had passed through several other distinct processes andactivities.406[304] While care needs to be taken with different statutory frameworks,New Zealand's approach is consistent with the England and Wales approach. InClutha District Council v Otago Regional Council, the High Court considered anappeal against a resource application to take water from the Clutha/Mata-Au River forthe purposes of a community water scheme which supplied water to rural and urbanproperties (including dairy farms) in the Clutha District.407 The consent was requiredas a controlled activity. The District Council contended that the end water use was nota relevant consideration for decision-makers to take into account. The Council'sprimary submission was that the end use of the water (dairy shed wash) and the effectsof that aspect of the activity on the environment "were too remote to be relevantconsiderations under the RMA."408[305] Nation J there held that the Environment Court was able to have regard to theend use of water subject to the "limits of nexus and remoteness".409 His Honourreferred to Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council, whichconcerned the export of spring water overseas and the subsequent disposal of plasticbottles.410 The Court in that case quoted the Environment Court decision on appeal inthat case as follows:411[61] Nexus refers to the degree of connection between the activity andthe effect, while remoteness refers to the proximity of such connection, bothbeing considered in terms of causal legal relationships rather than simply inphysical terms. Experience indicates that these assessments are likely to be interms of factors of degree rather than of absolute criteria and so be matters ofweight rather than intrinsically dispositive of any decision[306] In this respect, in Clutha District Council v Otago Regional Council, Nation Jfound that the end use of water for dairy shed wash and its subsequent discharge to the406 At [65].407 Clutha District Council v Otago Regional Council [2022] NZHC 510, [2022] NZRMA 242.408 At [42].409 At [43].410 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 3388, [2021] NZRMA76.411 At [81], citing Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196,(2019) 21 ELRNZ 539 at [61].environment "had a sufficient nexus to the take and were not so remote as to be matterswhich the Environment Court could not consider when fixing the duration for thewater take consent for the scheme."412 As his Honour found, "[t]he Court thereforehad to have regard to these effects under s 104(1)(a) of the RMA."413[307] Hiringa pointed to the decision in Te Rūnanga o Ngāti Awa v Bay of PlentyRegional Council, referred to above.414 In that case the High Court found no error oflaw in the Environment Court's analysis of legal principles, which included thefollowing statement:415[60] The ambit of the RMA in the context of considering an application forresource consent under s 104(1)(a) requires consideration of an effect ofallowing the activity. It does not extend as far as considering any effect on theenvironment which, given the broad inclusive definitions of those words,might be anything at all. There must be a causal relationship between allowingthe activity and the effect: if an effect would occur unchanged regardless ofwhether the activity was allowed or not, then such an effect would not bewithin the scope of s 104(1)(a) of the RMA. If the extent or degree of such aneffect would be altered by allowing or refusing the activity, then that effectwould be relevant at least in terms of that change but its nexus and remotenesswould need to be assessed.[308] Hiringa argued that the downstream effects of the use of urea were independentof the effects associated with the manufacturing of urea (or, more specifically, the wayin which it was manufactured) and that the project would make no appreciabledifference to the overall use of urea nor have any perceptible adverse effects on theenvironment different from those already existing. It further said that the use of ureawas managed by a range of regulatory and industry-based controls, including theResource Management (National Environmental Standards for Freshwater)Regulations 2020. Hiringa had submitted to the Panel that it was not open to it toeffectively prohibit or control urea use in relation to an application to establish arenewable wind energy facility with associated hydrogen production, storage, offtake412 Clutha District Council v Otago Regional Council, above n 407, at [52].413 At [52].414 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council (HC), above n 410. Leave to appealthe decision was granted by the Court of Appeal on 29 July 2021 on five questions, includingwhether the end use was beyond scope for consideration in the application for consents and landuse activities: Te Rūnanga O Ngāti Awa v Bay of Plenty Regional Council [2021] NZCA 354. Theapproved question was amended in a decision delivered on 9 September 2021: Te Rūnanga ONgāti Awa v Bay of Plenty Regional Council [2021] NZCA 452.415 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council (HC), above n 410, at [82], citing (at[81]) Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council (EnvC), above n 411, at [60].and refuelling infrastructure. A prohibition on the production of urea would requiredirect legislative intervention at a national level.416[309] Hiringa provided evidence to the Panel that the Project itself would notincrease the use of urea in New Zealand. Hiringa told the Panel in this respect that"[t]he use and rate of application of urea is subject to a range of regulatory and industrybased factors, which are independent of the way in which urea is manufactured."Hiringa advised the Panel, however, that the Project would "enable imported urea tobe replaced with lower emission domestically produced urea."417[310] In this case, Greenpeace argued that the basis upon which the Panel made itsdecision was factually incorrect, namely that the imported fuel and the amount of ureabeing maintained is steady. The evidence before the Panel upon which it based itsanalysis included evidence from Balance which supports its approach.418 The Panelundertook a balancing exercise, in which it considered the end use of urea.[311] Greenpeace submitted that the analysis of the urea production, and thesuggestion that it was, due to an increase in the use of urea, able to be produced morecheaply, supported its position that the end use should have been given greater weightby the Panel. However, it was open to the Panel to accept the evidence it had beforeit that the casual relationship between the activity and the indirect adverse effect wouldunlikely be altered by allowing or refusing the activity. The weight on the effect wasfor the Panel.419416 This is work being undertaken by the Government to reduce greenhouse gas emissions in theprimary sector. This has subsequently given rise to the He Waka Eke Noa: Primary Sector ClimateAction Partnership, a collaboration between government, the primary sector, and Māoriagribusiness formed in 2019 to, according to its recent report, "design a practical, credible, andeffective system for reducing emissions at farm level, as an alternative to government policy tobring agriculture into the New Zealand Emissions Trading Scheme": He Waka Eke Noa: PrimarySector Climate Action Partnership Recommendations for pricing agricultural emissions: Reportto Ministers (31 May 2022) at 1 and 4.417 Applicants' Responses to Comments, attached in a letter from Catherine Clennett (Chair ofHiringa Energy Ltd) and Andrew Clennett (CEO of Hiringa Energy Ltd) to the Expert ConsentingPanel (2 November 2021) at 10.418 Letter from Mark Wynne (CEO of Ballance Agri-Nutrients) to the Expert Consenting Panel(2 November 2021).419 Te Runanga o Ngāti Awa v Bay of Plenty Regional Council (HC), above n 410, at [60].[312] Greenpeace also said the failure to ensure the transition would damage Māoriinterests through the contribution of that fertiliser to the harmful effects of climatechange and through water pollution. Therefore, it said, in failing to require thetransition through the imposed conditions, the Panel acted inconsistently with theprinciples of the Treaty of Waitangi.[313] In this case the end use effects are well down the chain. The emissions are saidto flow from the use of fertiliser produced with the application of energy from theproject on pasture, the ingestion of that pasture and the result an increase in numbersgrazing which in turn produce greenhouse gases. The consideration by the Panel ofthat effect in this case in these circumstances.[314] The Panel was not required to go into detail in its reasons on this aspect. Itsreasons were sufficient given the statutory requirements on the reasons required in thereport. It is apparent that it took the view the indirect effect should not be givendeterminative weight in the circumstances of the case.[315] I am satisfied that the Panel did properly consider the end use of urea andrelated environmental effects. It was entitled to find on the basis of the evidence beforeit, as it did, that the end use of the urea produced — in view of the transition conditionsI have considered above — did not have a sufficient nexus to the environmental effectscomplained of sufficient to decline the application. Greenpeace seeks to revisit themerits of the Panel's assessment.Conclusion as to environmental issues[316] Overall, in relation to the environmental issues raised, I am satisfied the Panelmade no error. In particular, I am satisfied the conditions imposed by the Panel, thoughthey did not provide a hard time limit for transition to use of the hydrogen in thetransport sector within five years, were adequate. I am satisfied the Panel made noerrors in its treatment of these considerations.Summary[317] This appeal was brought on the following grounds of appeal, that the Panelerred in law in:(a) finding that the proposal was "entirely consistent" with pt 2 of theRMA, and in particular ss 6(e) and s 7(a);(b) failing to consider the cultural landscape of Ngāruahine as a whole;(c) failing to consider the precedent effect of the proposal to be an adverseeffect over the life of the project that could not be mitigated;(d) concluding that the project has no impact on two cultural redressproperties;(e) determining that a hearing was not required on any issue without givingreasons; and(f) finding that a critical reason for approving the project was 100 per centtransition to use of "green hydrogen" for transport.[318] I granted leave to argue on appeal whether the Panel in fact applied the Treatyclause under provisions under s 6 of the FTCA, and as to the Panel's consideration ofthe end use of the green energy created by the Project as well as its alleged failure toadequately ensure transition to use of the hydrogen for fuel transport occurs within thefive-year timeframe.[319] In respect of the Treaty and cultural issues canvassed in this appeal, I amsatisfied that both procedurally and substantively the Panel performed its functionsand exercised its powers in a manner "consistent with" the principles of the Treaty andTreaty settlements, as it was required to do under s 6 of the FTCA. In respect of theenvironmental issues raised on appeal, I am similarly satisfied that the Panel did noterr.[320] In summary, those conclusions on each ground of appeal are as follows.[321] In relation to the first ground, ground (a), I am satisfied that in finding that theapplication was "entirely consistent" with pt 2 of the RMA, in particular ss 6(e) and7(a), the Panel acted in a manner "consistent with" the principles of the Treaty andTreaty settlements. The Panel correctly identified and engaged with the culturalconcerns of Te Korowai and Ngāti Tu. It was satisfied the application taken with theconditions it imposed, many of which had been proposed by Te Korowai, adequatelydealt with these concerns sufficiently to satisfy the Panel as to consistency with TreatyPrinciples and that cultural requirements of pt 2 of the RMA were met. The Panelacknowledged the effort Hiringa had gone to in order to ensure it had consulted all iwiand hapū with an interest in the project, to determine how kaitiakitanga could beintegrated into the project, to mitigate the cultural effects of the project and to build arelationship that would result in positive outcomes for the hapū, Te Korowai, thebroader community and the environment.[322] In relation to ground (b), I am satisfied the Panel did not fail to consider thecultural landscape of Ngāruahine as a whole. The Panel canvassed the materialpresented to it in detail, in particular in this regard the CIAs, which had been fundedby Hiringa but prepared by Te Korowai and Ngāti Tu respectively. The Panelrecognised the significance of the cultural landscape to the hapū and I am satisfied itacknowledged the cultural effects as conveyed Te Korowai and the hapū weredeterminative.[323] With regard to ground (c), failing to consider the precedent effect of theproposal to be an adverse effect over the life of the project that could not be mitigated,I am satisfied the Panel did properly assess the application on its merits and on theevidence before it as it did, which in particular included limiting the number ofturbines to four and providing for appropriate decommissioning of the turbines.420[324] In relation to ground (e), the Panel's determination not to hold a hearingwithout giving reasons for that decision, I am satisfied that there was no requirementfor the Panel to give reasons for not holding a hearing. No party had made any specific420 Ground (d), relating to cultural redress properties, was not pursued.request for a hearing. The Panel gave adequate reasons for its decision to grantconsent.[325] The final ground, ground (f), generally concerns the Panel's consideration ofthe transition of use for urea to hydrogen fuel, which it considered to be a criticalreason for approving the application. The Panel acknowledged that it was difficult tosee how the fast-track consenting process could be justified absent the timeframe forthe transition. I am satisfied the Panel did not err in finding this to be a critical reasonfor approving the project. Though the conditions imposed in this respect did notimpose a "hard" requirement to ensure that the transition would occur within fiveyears, I am satisfied the conditions imposed, as well as the evidence before the Panelitself, ensured that the transition would occur in a timely manner, relevant to thefive-year timeframe, with appropriate review by the South Taranaki District Council.There was no unlawful delegation, nor were the transition conditions, which werecertain and not unreasonable, ultra vires.[326] The final outstanding matter, on which I granted leave to appeal despite it notbeing raised in the initial grounds of appeal, relates to the Panel's alleged failure toconsider the environmental effects of the end use of the hydrogen, and associatedconditions. I am satisfied the Panel considered the end uses of the urea produced.Conclusion[327] The appeal is dismissed.Costs[328] Any application for costs should be made by application and supportingsubmissions within five days of the date of this decision. Any responses should befiled within a further five days and any reply within a further three days.____________________Grice JSolicitors:Govett Quilliam, New PlymouthAttachment 1 — Marae and Area with Direct Line of SightMarae and Area with Direct Line of SightAttachment 2 — Excerpt from Appendix 2 conditions (relating to culturalconditions)General(1) The construction, operation and maintenance of the Kapuni Green HydrogenProject shall be undertaken in general accordance with the informationprovided in "Kapuni Green Hydrogen Project Resource Consent Applicationand Assessment of Environmental Effects" dated August 2021 and any otherdocumentation relevant to the resource consent applications. In the event ofany conflict or discrepancy between these documents and the conditions ofthis resource consent, the conditions shall be determinative.Wind turbine characteristics(8) The maximum number of wind turbines that may be installed on the WindTurbine Site shall not exceed 4.Culverts(36) Within 20 working days after completion of the installation of the culvert onthe Wind Turbine Site, the consent holder shall collect and provide thefollowing information, together with the time and date of its collection, to theChief Executive of the Taranaki Regional Council (and, with respect to theinformation listed in paragraphs (e), (f) and (g), to Te Korowai o NgāruahineTrust, Ngāti Tu and Ngāti Manuhiakai):(a) the type of the structure;(b) the geographical co-ordinates of the structure;(c) the flow of the river or connected area (whether none, low, normal, orhigh);(d) at the structures location:i. the width of the river or connected area at the water's surface;andii. the width of the bed of the river or connected area;(e) whether there are any improvements to the structure to mitigate anyeffects the structure may have on the passage of fish;(f) whether the structure protects particular species, or prevents access byparticular species to protect other species;(g) the likelihood that the structure will impede the passage of fish;(h) visual evidence (for example, photographs) that shows both ends ofthe structure, viewed upstream and downstream;(i) the culvert's asset identification number, if known;(j) whether the culvert's ownership is;i. held by the Crown (for example, the Department ofConservation), a regional council, a territorial authority, theNew Zealand Transport Agency, or KiwiRail HoldingsLimited; orii. held publicly by another person or organisation; oriii. held privately; oriv. unknown;(k) the number of barrels that make up the culvert;(l) the culvert's shape;(m) the culvert's length;(n) the culvert's diameter or its width and height;(o) the height of the drop (if any) from the culvert's outlet;(p) the length of the undercut or erosion (if any) from the culvert's outlet;(q) the material from which the culvert is made;(r) the mean depth of the water through the culvert;(s) the mean water velocity in the culvert;(t) whether there are low-velocity zones downstream of the culvert;(u) the type of bed substrate that is in most of the culvert;(v) whether there are any remediation features (for example, baffles orspat rope) in the culvert;(w) whether the culvert has wetted margins;(x) the slope of the culvert;(y) the alignment of the culvert; and(z) the numbers of each other type of structure to which this subpartapplies, or of wingwalls or screens, on the culvert.(45) The consent holder must ensure that a plan is implemented to monitor andmaintain the culvert so that fish passage is maintained and does not reduceover time the consent holder shall prepare a plan for that monitoring andmaintenance Lizard survey(73) Upon finalisation of infrastructure plans and associated extents and locationsof vegetation clearance (including associated grassland), including theearthworks footprint, a lizard survey must be conducted in these clearanceareas by a suitably qualified and experienced herpetologist prior to workscommencing. The lizard survey report shall be provided to the Department ofConservation, the Group Manager – Environmental Services, South TaranakiDistrict Council, the Chief Executive, Taranaki Regional Council andTe Korowai o Ngāruahine Trust, Ngāti Tu and Ngāti Manuhiakai.Archaeology(88) The Archaeological Discovery Protocol will apply to the unexpecteddiscovery of artefacts or archaeological material encountered duringearthworks undertaken as part of this project Cultural(89) The consent holder shall ensure that site inductions for all contractors workingon the Kapuni Green Hydrogen Project include a cultural component whichprovides details of mana whenua Iwi and Hapū for the project area, thecultural significance of the project area to mana whenua and the protocols inplace related to earthworks monitoring and archaeological discovery.(90) The consent holder shall provide Ngāti Tu and Ngāti Manuhiakai Hapū anopportunity to perform a karakia to bless the project site/s prior to workscommencing.(91) The consent holder shall provide an opportunity for a representative both ofNgāti Tu and Ngāti Manuhiakai Hapū to be present on site during anyearthworks for the Kapuni Green Hydrogen Project.Community consultation(99) At least 40 working days prior to the commencement of construction worksauthorised as part of this resource consent, the consent holder shall establishand co-ordinate a Consultative Group for the Kapuni Green Hydrogen Project.Subject to the conditions below, this group is to be consulted, as a minimum,at least six monthly during the construction phase and over the first two yearsof the operation of the Kapuni Green Hydrogen Project. Thereafter, thefrequency of consultation is to be determined by a majority of the ConsultativeGroup itself. Individual Consultative Group members may, with theagreement of the Group Manager – Environmental Services, South TaranakiDistrict Council, call meetings at shorter intervals to deal with any interimmatters that need to be addressed before the next scheduled meeting.(100) The objective of the Consultative Group will be to facilitate information flowbetween the consent holder's management team and the community and willbe an on-going point of contact between the consent holder and thecommunity. The functions of the Consultative Group shall also include actingas a forum for relaying community concerns about the construction and on-going operation of the Kapuni Green Hydrogen Project to the consent holder'son-site management team, developing acceptable means of addressing (wherepossible) and managing those concerns, and reviewing the implementation ofmeasures to resolve and manage community concerns.(101) The consent holder shall be responsible for convening the meetings of theConsultative Group and shall cover the direct costs associated with theestablishment and operation of the meetings. The consent holder shall beresponsible for the keeping and distribution of the Consultative Group'sminutes to all participants in the Consultative Group. A person independent ofthe consent holder shall chair the meeting. The chair of the Consultative Groupshall be appointed by the Group Manager – Environmental Services, SouthTaranaki District Council.(102) The consent holder shall notify its intention to establish a Consultative Groupfor the Kapuni Green Hydrogen Project by public notice. The consent holdershall invite, as a minimum, the following parties to participate in theConsultative Group:(a) A representative of property owners and occupiers on local roadssurrounding the Wind Turbine Site identified for use by constructiontraffic;(b) A representative of property owners who own land adjacent to the siteas identified in BTW drawing 191149 – GIS – 105 Sheet 1 Rev 5;(c) An elected representative of the South Taranaki District Council; and(d) A representative each from Ngāti Tu and Ngāti Manuhiakai Hapū.(103) No owner or occupier of any property on which the Kapuni Green HydrogenProject is located may be a member of the Consultative Group. The consentholder shall not be in breach of this condition if any one or more of the partiesspecified above do not wish to be members of the Consultative Group or toattend any particular meeting.(104) The Consultative Group shall cease to exist when a 75% majority of theConsultative Group vote that it is no longer necessary.(105) The consent holder shall maintain and keep a Complaints Register to recordany complaints about construction works and operation of the Kapuni GreenHydrogen Project received by the consent holder in relation to traffic, noise,dust, television or radio reception interference, shadow flicker or any otherenvironmental effects. The register shall record, where this information isavailable, the following:(a) The date, time and duration of the incident that resulted in thecomplaint;(b) The location of the complainant when the incident was detected;(c) The possible cause of the incident; and(d) Any corrective action taken by the consent holder in response to thecomplaint, including the timing of the corrective action.(106) The Complaints Register shall be available to staff and authorised agents ofthe South Taranaki District Council and to members of the Consultative Groupat all reasonable times upon request. Complaints received by the consentholder that may infer non-compliance with the conditions of this resourceconsent shall be forwarded to the Group Manager – Environmental Services,South Taranaki District Council within 48 hours of the complaint beingreceived.Decommissioning and site rehabilitation(107) The wind turbines shall be removed from the site, either at the end of theiruseful life or the end of the term of this consent, whichever occurs earliest, inaccordance with a certified Decommissioning Plan as per Conditions 108-110.Note: For the purposes of this consent, "useful life" means the period of time thatthe wind turbines remain fit for purpose and structurally sound. For theavoidance of doubt, structurally sound means free from flaw, defect ordeterioration to the extent that the turbines remain capable of adequately andsafely accommodating the wind turbine blades and motors. (When theturbines are rendered obsolete and uneconomic to modify or repair or when aperiod of 35 years has passed, they are to be decommissioned from the site inaccordance with the conditions of this consent).(108) At least 80 working days prior to the commencement of decommissioning ofthe wind turbines authorised as part of this resource consent, the consentholder shall submit a Decommissioning Plan to the Group Manager –Environmental Services, South Taranaki District Council for endorsementacting in a technical certification capacity to certify that the plan meets theobjectives in this Condition 108 (a) – (c). The Decommissioning Plan shall beprepared by a suitably qualified and experienced person and provide for thefollowing objectives:(a) Decommissioning of the wind turbines and associated infrastructurein a manner that complies with all legislative requirements;(b) Leaving the land in a condition that is safe and suitable for thesubsequent land use (as agreed with the landowner); and(c) Ensuring that the components and infrastructure are disposed of in away that maximises re-use and recycling. For any parts that cannot bereused or recycled, ensuring that they are not sent to landfill but aredisposed of in an environmentally responsible way in accordance withindustry best practice.(109) The Decommissioning Plan shall include but not be limited to:(a) Details on all infrastructure to be decommissioned, including details,method and location of reuse, recycling or disposal and the reasonswhy the options have been chosen;(b) Details of specific infrastructure to remain on-site post-closure andreasons why it will remain on site;(c) Scheduling and timing for decommissioning;(d) Details for finished ground cover at completion of decommissioningand future intended land use;(e) A Transport Plan for the transport of wind turbine components andany other infrastructure off site addressing the matters in Condition 65(a) – (m);(f) Details of management, any ongoing maintenance, monitoring andreporting proposed by the consent holder to ensure post-closureactivities are carried out in accordance with the conditions of thisresource consent.(110) The Decommissioning Plan shall be prepared in collaboration with TeKorowai o Ngāruahine Trust, Ngāti Tu and Ngāti Manuhiakai, and evidenceof this shall be submitted to the Group Manager – Environmental Services,South Taranaki District Council. If hydrogen production associated with theProject is to continue at the Ballance site after the duration of the consent, theDecommissioning Plan shall also include an Alternative Site Plan that is to beprepared in collaboration with Ngāti Tu and Ngāti Manuhiakai. TheAlternative Site Plan shall, as a minimum, contain a process to identify analternative site, or sites, situated coastward of SH45 to locate any replacementwind turbines on.Review(111) Pursuant to Sections 128 to 131 of the Resource Management Act 1991, theSouth Taranaki District Council or the Taranaki Regional Council may, 1 yearafter the commencement of this resource consent, and at 5 yearly intervalsthereafter, serve notice on the consent holder of its intention to review any orall of the conditions of this resource consent for any of the following purposes:(a) To review the effectiveness of the conditions of this resource consentin avoiding, remedying or mitigating any adverse effects on theenvironment that may arise from the exercise of this resource consent(in particular, the potential adverse environmental effects in relationto ecology, archaeology, noise, hazardous substances, earthworks,traffic and roading, visual, landscape and amenity effects);(b) To address any adverse effects on the environment which have arisenas a result of the exercise of this resource consent that were notanticipated at the time of commencement of this resource consent,including addressing any issues arising out of complaints; and(c) To review the adequacy of, and necessity for, any of the monitoringprogrammes or management plans that are part of the conditions ofthis resource consent.