Case note: Ministry of Agriculture and Forestry v Waikato Regional Council

This case concerned an appeal by Crown Forestry against the Waikato Regional Council’s decision not to grant resource consent for the harvesting and replanting of state pine forest on four blocks of land historically identified as waahi tapu. The four blocks were originally set aside as urupa (burial grounds) by the Crown, and Te Iwi O Ngati Te Ata Waiohua (Ngati Te Ata) had buried their dead on the site up until 1966.

On the basis of the evidence provided, the Environment Court determined that the subject blocks of land were waahi tapu and that the proposed forestry operation would cause both physical damage to urupa, and damage to less tangible aspects of the waahi tapu sites. The decision also thoroughly considered the adequacy of Crown Forestry’s consultation with iwi and the cultural impacts resulting from the proposal.

Section 8 - Principles of the Treaty of Waitangi

The decision highlights three Treaty principles: consultation, partnership, and active protection and preservation. The Court observed that this ‘list’ of principles must be kept in perspective, in that it would be incorrect to rely on a paraphrased list of Treaty principles in place of the spirit of the Treaty or it’s actual words. The Court preferred to approach section 8 in a broad way, rather than listing each principle and considering the case in relation to each one (see also Waikanae Christian Holiday Camp v Kapiti Coast District Council (HC Wellington, CIV 2003-485-1764, 27 October 04, MacKenzie J)).

Adequacy of consultation - Is a ‘cultural values assessment’ always necessary?

Ngati Te Ata challenged the adequacy of consultation undertaken by Crown Forestry.

The long - and not very fruitful - consultation process between Crown Forestry and Ngati Te Ata is fully described in the decision. After three years, very few of the proposed offers to consult with representatives of Ngati Te Ata had resulted in meaningful discussion. In particular, Crown Forestry had become frustrated with the terms offered for preparation of a cultural values assessment (such as scope, size, and cost). It appears the Iwi participated very little in the process - a Council Officer gave evidence that he had not been able to evaluate cultural effects in the absence of proactive participation by the Iwi. Ultimately Crown Forestry commissioned an independent report concerning effects on archaeological matters. A formal ‘cultural values assessment’ was not prepared.

Crown Forestry accepted that in making the application they were acting on behalf of the Crown and were bound by the principles of the Treaty of Waitangi. They contended they had been fair, acted in the utmost good faith, and had fulfilled their commitments to the greatest extent possible.

The Court found that there is no universal requirement as to the form of consultation, and in respect of this ‘... the law does not make commissioning tangata whenua to prepare a cultural values report essential to adequate consultation.’ While recognising the value of any such report, the Court noted that there were other ways Ngati Te Ata could have communicated information about the cultural impacts of the proposal. What was important for the Court was ‘... that Ngati Te Ata were given reasonable opportunity in which to state their views.’ The Court also noted there are further opportunities for Iwi to make their position clear at council hearings, and any subsequent Environment Court hearing, if they do not wish to participate at the consultation stage of an application.

On the facts of the case, Crown Forestry demonstrated to the Court that during the consultation process they had been open to information expressing views of the local iwi and the way the proposal would affect their interests. On that basis, the Court concluded that Crown Forestry had satisfied its consultation obligations.

A proposed protocol to deal with dispersed and unidentified Waahi Tapu within the site

The Court discussed a proposed protocol for dealing with waahi tapu and other archaeological features discovered on the site. As formulated, the protocol was not considered to adequately recognise and provide for Ngati Te Ata’s cultural and traditional relationship with their waahi tapu. In trying to deal with the effects on the dispersed archaeological sites (including individual urupa and shell middens), the applicant was caught in a vicious circle. Discrete identifiable archaeological grounds could have been excluded from the forestry activity and thus better catered for in a consent conditions. But in this case the archaeological sites were yet to be found, and in trying to provide for this the Court was not happy with the uncertainty the protocol created. By requiring the consent holder to consult after finding an archaeological site, the Court found that the protocol left the consent-holder with the final decision about whether to harvest and so did not appropriately recognise and provide for Ngati Te Ata’s relationship with the site. However the alternative - that the protocol confer veto power on Ngati Te Ata in respect of any burial sites discovered - was found to be unlawful. In these circumstances, the proposed protocol was discarded as unworkable.

Evaluation under Part 2

The Court ultimately declined the appeal on an overall ‘Part 2’ evaluation. While there were positive benefits arising from the removal of mainly unsafe, unhealthy, and unthrifty trees on the site, on an overall evaluation, those benefits were found to be slight. In contrast, the extent of the adverse cultural effects were found to be considerable for the following reasons:

  • the proposal did not recognise or provide for the relationship of Ngati Te Ata and their waahi tapu;
  • the proposed conditions would not protect any physical remains of burials, or provide for the intangible aspect of the Iwi’s relationship with the land;
  • the cumulative effects on waahi tapu of harvesting, earthworks, and replanting would be significant;
  • harvesting would conflict with the cultural provisions of the relevant planning instruments;
  • the proposal would not discharge the duties imposed by s6(e) and (f), and would hinder the ability of Ngati Te Ata to exercise kaitiakitanga provided for in s7(a).

Article by Shelley Chadwick

Refresher: Giving Weight To Different Plans

It is now over 15 years since the Resource Management Act 1991(RMA) passed into law. In that time planning instruments have evolved from transitional district plans rolled-over from pre-RMA times into the first suite of plans wholly devised and promulgated under the RMA. Many local authorities are now well advanced in the preparation of ‘second generation’ plans, building on the lessons learned during the first round of RMA plan development.

In some cases, the revision of plans is occurring through a quiet revolution of plan changes and variations. This can leave the local planning landscape in something of a state of flux. In such circumstances, it is important to remain aware of the correct approach for balancing different planning instruments when dealing with resource consent applications.

Part 6 of the RMA

Part 6 of the RMA refers to proposed plans (defined to include plan changes or variations) in relation to several different stages of the consent process: determining activity classifications; notification; and the substantive decision. The focus of this ‘refresher’ is the last of these elements - the weight to be given to proposed plans when making a substantive decision under section 104 of the RMA.

Section 104

Section 104(1)(b)(iv) provides that a Council must, when considering an application for resource consent and subject to Part 2, have regard to ‘a plan or proposed plan’.

Several notable points arise in relation to this provision:

  • First, notwithstanding the ‘or’ in section 104(i)(b)(iv), a Council has to consider the provisions of both the operative plan and the proposed plan (TV3 Network Services v Waikato District Council [1997] NZRMA 539). As soon as a proposed plan is created (i.e. the day it is notified under clause 5 of the First Schedule to the RMA) it becomes a relevant consideration, regardless of whether the consent application was lodged before or after that date.
  • Second, neither plan has more importance over the other. Both have to be considered (i.e. had regard to). However, that does not mean that the provisions of both must be given effect to. When there is a conflict between the provisions, or at least an inconsistency, judgements will need to be made.
  • Third, the requirement relates to the operative plan and the proposed plan as a whole - not just the objectives and policies.
  • Finally, under clause 10(3) of the First Schedule a Council’s decision on submissions is deemed to amend the provisions of a proposed plan. Therefore, as from the date of a Council’s decision under clause 10, the provisions must be considered and applied under section 104(1)(b) in their amended form.

Principles relevant to weight

In the light of the above, it is important to know how much weight should be put on an operative plan relative to a proposed plan under s104(b)(iv), when the two plans are not consistent. A large body of caselaw developed on this issue during the 5-10 year period of replacing transitional plans with the ‘first generation’ proposed plans under the RMA. Although there has been little judicial comment since then, these cases do provide useful guidance. Several relevant factors are discussed below.

Stage in First Schedule process

In general, the weight to be given to the proposed plan will be greater ‘the further the relevant provisions have been exposed to testing along the statutory course prescribed by Part 1of the First Schedule’ (Hanton v Auckland CC [1994] NZRMA 289). This should be considered on a case by case basis (and provision by provision) basis. In other words, as each of the provisions of the proposed plan become increasingly settled through the First Schedule process, they should be afforded more weight. Matters that can also be considered in this respect are the number and nature of submissions on a provision, as this will indicate the degree of community acceptance of a proposed plan and how susceptible a provision may be to modification throughout the First Schedule process.

However, in certain circumstances a proposed plan that has reached a very early stage in the First Schedule process will prevail in the event of an inconsistency with an operative plan. This is illustrated by the examples below.

Policies of the proposed plan

The Courts have held that ‘where there has been a significant shift in Council policy ... we can give considerably more weight to the provisions of the proposed plan’ (Lee v Auckland City Council [1995] NZRMA 241). In the Lee case, the proposed plan was at the stage where submissions were still being received, and no decision had yet been made on them by the Council. However, the Court gave the proposed plan considerable weight because (of relevance):

  • it stems from Part 2 of the RMA, rather than previous planning legislation;
  • it reflects a paradigm shift in Council’s policy; and
  • changes to the proposed plan had been brought about following ‘exhaustive professional research’ into special character residential zones.

Similarly, the Court has held that the implementation of a coherent pattern of resource management objectives and policies through a proposed plan would also be relevant to the issue of weighting. An example is the case of Gargiulo v Christchurch City Council (C137/2000, 21August 2000) where the proposed plan was considered more consistent with the Regional Policy Statement in its protection of Christchurch International Airport, whereas the transitional plan was ‘a confusing, inconsistent and out-of-date document’.

Part 2 of the RMA

A proposed plan will be worthy of greater weight where it reflects greater alignment with Part 2 of the RMA (Wyatt v Auckland City Council, EnvC W86/95, 5 July 1995). Cases that have considered the weight to be given to proposed plans relative to plans that were developed under the Town and Country Planning Act 1977 (TCPA) stress the importance of plans that stem from the provisions of Part 2, rather than the old regime of the TCPA (for example, Lee v Auckland City Council). In light of the additions to Part 2 brought about by the 2003 amendments of the RMA, where a proposed plan gives greater protection to historic heritage (s6(f)), or reflects a concern for renewable energy and climate change (s7(i),(j)) it is deserving of more weight than would otherwise be the case.

In addition, should a proposed plan address a significant environmental issue that is not dealt with at all in the operative plan, then the proposed plan’s provisions in relation to that issue should be given substantial weight.

Finally, it is important to stress that all these considerations under section 104(1)(b)(iv) are secondary to the overriding assessment under Part 2 of the Act.

Article by Melanie Gordon

Choosing The Defendant: Enforcement Against Corporate Entities

The High Court’s recent decision in Cometa United Corporation & Tradewood Shipping Company v Canterbury Regional Council (HC Christchurch, CRI 2006-409-000128, 6 October 2006, Fogarty J) helpfully clarifies the types of entity that can be prosecuted under section 338 of the Resource Management Act 1991(RMA).

The High Court’s discussion of this issue in the enforcement context is welcome, in light of the Supreme Court’s discussion of the RMA’s definition of a ‘person’ in Discount Brands Ltd v Northcote Mainstreet Inc [2004] 3 NZLR 619 (SC).

Cometa concerned an appeal against convictions for discharges of contaminant to water in the coastal marine area. The discharges issued from a ship which was forced to stop in Lyttelton Harbour by bad weather. In the course of refuelling, a total of 300 litres of fuel escaped into the harbour through rust holes in the ship.

The appellants challenged their convictions on two grounds:

  • First, that the prosecution had not proved beyond a reasonable doubt that the two defendants were in fact bodies corporate.
  • Second, that unincorporated bodies of persons could not be prosecuted under the Summary Prosecutions Act 1957 (SPA), which applies to informations laid under section 338 of the RMA.

In relation to the first issue, some difficulties arose on the facts of the case as the registered owner of the ship in question was a foreign entity of uncertain legal standing (i.e. there was no evidence as to the nature of the entity under the laws of its home jurisdiction). However, that difficulty was overcome by the Court’s conclusion that formal incorporation of a non-natural person (i.e. not a real person) doesn’t need to be proved. In this regard, the High Court applied the definition of a ‘person’ discussed by the Supreme Court in Discount Brands.

The High Court also referred to a passage in Discount Brands that states a society of persons is not a body of persons under the RMA, unless the regulation of their internal affairs can be said to be a structure. On the facts of Cometa this requirement was satisfied, as the appellants respectively owned and managed the relevant ship, and had a separate name by which they identified themselves when acting as a body.

As to the second issue, the High Court concluded that Parliament must have intended that section 338 should be able to be invoked against an unincorporated body of persons, otherwise ‘... there would be a gaping loophole in the RMA’.

This interpretation of who may be a defendant for the purposes of the RMA does carry a proviso - namely, it must be possible for any penalty that is imposed to be enforced against the defendant. In Cometa this was not an issue, as the RMA expressly provides that any fine imposed is payable by the local agent of a ship’s manager and owner.

Article by Shelley Chadwick

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.