TE RŪNANGA O NGĀTI AWA v BAY OF PLENTY REGIONAL COUNCIL [2021] NZCA 354

TE RŪNANGA O NGĀTI AWA v BAY OF PLENTY REGIONAL COUNCIL [2021] NZCA 354 [29 July 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA48/2021[2021] NZCA 354BETWEEN TE RŪNANGA O NGĀTI AWAApplicantAND BAY OF PLENTY REGIONAL COUNCILFirst RespondentCRESWELL NZ LIMITEDSecond RespondentCA49/2021BETWEEN SUSTAINABLE OTAKIRIINCORPORATEDApplicantAND WHAKATANE DISTRICT COUNCILFirst RespondentCRESWELL NZ LIMITEDSecond RespondentCA60/2021BETWEEN NGĀTI PIKIAO ENVIRONMENTALSOCIETY INCORPORATEDApplicantAND BAY OF PLENTY REGIONAL COUNCILFirst RespondentCRESWELL NZ LIMITEDSecond RespondentCA61/2021BETWEEN TE RŪNANGA O NGĀI TE RANGI IWITRUSTApplicantAND BAY OF PLENTY REGIONAL COUNCILFirst RespondentCRESWELL NZ LIMITEDSecond RespondentCourt: Clifford and Courtney JJCounsel: H K Irwin-Easthope and K J Tarawhiti for Applicant inCA48/2021J D K Gardner-Hopkins for Applicant in CA49/2021R B Enright and R G Haazen for Applicant in CA60/2021J M Pou for Applicant in CA61/2021M H Hill for First Respondent in CA48/2021, CA60/2021 andCA61/2021A M B Green and M S Jones for First Respondent in CA49/2021J B M Smith QC and D G Randal for Second Respondent inCA48/2021, CA49/2021, CA60/2021 and CA61/2021Judgment:(On the papers)29 July 2021 at 10.30 amJUDGMENT OF THE COURTThe applications for leave to appeal by each of the applicants on questions of laware granted in accordance with [4]–[5] of this judgment.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)[1] Te Rūnanga o Ngāti Awa, Sustainable Otakiri Inc, Ngāti Pikiao EnvironmentalSociety Inc, and Te Rūnanga o Ngāi Te Rangi Iwi Trust bring applications for leave toappeal a judgment of the High Court.1 That judgment upheld the Environment Court'sdecision to dismiss the parties' appeals against the granting of resource consents tothe respondent, Creswell NZ Ltd, by the Bay of Plenty Regional Council and theWhakatane District Council.2[2] Creswell NZ Ltd opposes the applications. The Bay of Plenty RegionalCouncil and the Whakatane District Council abide.[3] Each of the 15 questions of law for which leave is sought are set out inthe appendix to this judgment.[4] We grant leave on the following five questions:(1) Did the High Court err in finding that the Environment Court wascorrect to conclude that the effects on the environment of using plasticbottles were beyond the scope of consideration in relation to thesecond respondent's application for consents to take water, and thoserelating to land use activities?(2) Did the High Court err in finding that the Environment Court did notneed to seek further evidence, or decline the second respondent'sapplication for consent, in circumstances where the Court had evidenceas to the scale of the bottling operation but no evidence as to the scaleor adverse effects of plastic bottles being discarded?(3) Did the High Court err in finding that the Environment Court did notneed to have recourse to pt 2 of the Resource Management Act 1991and, in particular (i) that the relevant planning instruments providedadequate coverage of the provisions of pt 2,3 and (ii) that an assessment1 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2020] NZHC 338 [High Courtjudgment]. We refer to the applicants as Ngāti Awa, Sustainable Otakiri, Ngāti Pikiao and NgāiTe Rangi respectively.2 Te Rūnanga o Ngāti Awa v Bay of Plenty Regional Council [2019] NZEnvC 196, (2019)21 ELRNZ 539 [Environment Court judgment].3 See High Court judgment, above n 1, at [178] and [188].of sustainability by itself was sufficient to address relevant culturaleffects, so that no further reference to pt 2 was needed in that context.4(4) Did the High Court err in finding that the Environment Court correctlydetermined that the activity status of the second respondent's proposalwas a discretionary "rural processing activity", rather than anon-complying "industrial activity" including "manufacturing",under the terms of the Whakatane District Plan?(5) Did the High Court err in finding that the Environment Court correctlyclassified the respondent's proposal as an expansion of an existing useof land, and therefore a discretionary activity under s 127 of theResource Management Act 1991, rather than as a new activity fallingfor consideration as a non-complying activity under s 88 of that Act?[5] As can be seen those questions differ from the questions put to us bythe applicants. We observe:(1) At present, we grant leave:(i) On question 1, to Ngāti Awa and Sustainable Otakiri;(ii) On question 2, to Ngāti Awa and Sustainable Otakiri;(iii) On question 3, to Ngāti Awa, Ngāti Pikiao and Ngāi Te Rangi;and(iv) On questions 4 and 5, to Sustainable Otakiri.(2) We decline to grant leave on the challenges to the correctness ofthe preferred evidence as regards the tikanga effects of the proposal.We do so on the basis of the following observations of theSupreme Court in Takamore v Clarke:54 See Environment Court judgment, above n 2, at [104]–[107].5 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 per Elias CJ.[95] What constitutes Maori custom or tikanga in theparticular case is a question of fact for expert evidence or forreference to the Maori Appellate Court in an appropriatecase.6 A court asked to identify the content of custom byevidence is not engaged in the same process of interpretationor law-creation, as is its responsibility in stating thecommon law. [6] We invite the applicants to confer. We do so because we recognisedconsiderable overlap on the questions of law as put by the applicants for which a grantof leave was appropriate, which we endeavoured to resolve in our reformulation of thequestions. If issues arise, leave is reserved.[7] It is likely that some form of pre-appeal conference may be useful to fix theshape of the appeal and the allocation of roles. That can be a matter for the panel towhich this appeal will be assigned.Result[8] The applications for leave to appeal by each of the applicants on questions oflaw are granted in accordance with [4]–[5] of this judgment.Solicitors:Whāia Legal, Wellington for Applicant in CA48/2021Linwood Law Ltd, Christchurch for Applicant in CA49/2021Tu Pono Legal Ltd, Rotorua for Applicant in CA60/2021 and CA61/2021CooneyLeesMorgan, Tauranga for First Respondent in CA48/2021, CA60/2021 and CA61/2021Brookfields, Auckland for First Respondent in CA49/2021Buddle Findlay, Wellington for Second Respondent in CA48/2021, CA49/2021, CA60/2021 andCA61/20216 Te Ture Whenua Maori Act 1993, s 61.AppendixApplicant Question(1) Ngāti Awa Did the High Court err in accepting that the analysis of theEnvironment Court Majority with respect to tikanga and Te Tiritio Waitangi considerations in the context of end-use was not flawed?(2) Ngāti AwaandSustainableOtakiriWhether or not the effects of plastic bottles are relevant to decisionmaking under the Resource Management Act 1991 (RMA), and, if so:(i) To what extent are they relevant (including effects outside NewZealand); and(ii) How much information an applicant for a major water bottlingproposal needs to provide?(3) Ngāti Awa Did the High Court err in upholding the Environment CourtMajority's decision [declining] to have recourse to Part 2 ofthe RMA? And, in particular:(i) Did the High Court err in its approach to Part 2 [in] notrequiring reversion back in the context of an incompleteplanning framework and tikanga being engaged; and(ii) Did the High Court err in holding that the Environment CourtMajority did not err in failing to consider relevant Treatyprinciples under section 8?(4) Ngāti Awa Did the High Court err in concluding that the errors alleged were notmaterial to the Environment Court Majority's ensuing analysis andultimate decision?(5) SustainableOtakiriIs the extraction of water a "land use" activity?(6) SustainableOtakiriIf the extraction of water is a land use activity, under the WhakataneDistrict Plan:(i) does it have a functional need to occur in a rural location?;(ii) is it also a "primary productive use"?; and(iii) if it is a "primary productive use" is it also a "rural processingactivity"?(7) SustainableOtakiriIn a water-bottling proposal, is the principal land use:(i) the extraction of water; or(ii) the bottling process including any integral bottlemanufacturing?(8) SustainableOtakiriIs a resource consent required for an ancillary activity as well as theprincipal activity?Applicant Question(9) SustainableOtakiriIs s 127 available to authorise the construction of entirely newbuildings and undertaking of entirely new activities, such as:(i) a new (additional) 16,800 square metre building (with twostoreys);(ii) a container depot (and associated machinery); and(iii) a new plastic bottle manufacturing plant (an industrial activity)when the original consent did not include such buildings or activities?(10) SustainableOtakiriIs s 127 available to authorise the replacement of all the conditionsof a resource consent (four) with an entirely new and expanded setof conditions (69), such that the consent is in fact an entirely new orreplacement consent?(11) SustainableOtakiriEven if the essential activity remains the same, can the scaleof increase of effects disqualify use of s 127 and instead require afresh application to be made where the increased effects aredisproportionate to the effects authorised by the original consent?(12) NgātiPikiaoDid the High Court err by finding that it was not mandatory for theEnvironment Court to consider:(i) Section 8 of the RMA;(ii) Relevant Treaty principles relating to the exercise ofrangatiratanga, tikanga, and the duty of active protection, byNgāti Awa and Ngāti Pikiao over their freshwater resources andtaonga, for their regional consents.(13) NgātiPikiaoDid the Environment Court and High Court err in failing to considerNgāti Pikiao's Treaty rights and interests, including rangatiratanga,active protection, and tikanga, with their ancestral waters and taonga?(14) Ngāi TeRangi(a) Did the Environment Court and High Court err in theirapproach to tikanga under s 104 of the RMA, in finding thatthere was no jurisdiction to consider end use as relevant tothe regional resource consents?(b) Did the Environment Court and High Court err in theirapproach to tikanga by failing to rely on the evidence ofthe Iwi Authority, as exclusively relevant to determining whatthe tikanga of Ngāti Awa is?(15) Ngāi TeRangiWhether the Environment Court and High Court erred by conflatingwestern science expert evidence relating to physical effects ofthe regional resource consents, with the tikanga effects of Ngāti Awa,arising from the grant of the consents.