BEFORETHEEN~RONMENTCOURT

I MUA I TE KOOTI TAIAO O AOTEAROA

Court:

Hearing:

Appearances:

IN THE MATTER

AND

BETWEEN

AND

AND

Decision No. [2019] NZEnvC

of the Resource Management Act 1991

of an application for orders for rehearing of proceedings under s294 of the Act

SKP INCORPORATED

(ENV-2018-AKL-00017 4)

Applicant

AUCKLAND COUNCIL

Respondent

KENNEDY POINT BOATHARBOUR LIMITED

Consent Holder

Principal Environment Judge L J Newhook Environment Commissioner A C E Leijnen Environment Commissioner l M Buchanan

At Auckland on 18 - 20 September 2019

J Gardner-Hopkins for Applicant M Allan and R Abraham for Respondent P Majurey and V Morrison-Shaw for Consent Holder

Date of Decision: / 3 Dec e,,,,-, &.v- 2-o I c,

Date of Issue: / 3 Dec -e.,.,.., ~ -Z..01 '7

DECISION OF ENVIRONMENT COURT ON APPLICATION FOR REHEARING, AND

FINAL DECISION ON APPLICATIONS FOR APPOINTMENT OF A MAORI LAND

COURT JUDGE TO SIT, ADJOURNMENT, AND WAIVER APPLICATION BY TRUST

BOARD

A: Application for rehearing refused.

2

B: Appointment of MLC Judge finally refused.

C: Adjournment finally refused.

D: Costs reserved.

REASONS

Introduction

[1] The applicant, SKP Incorporated (SKP) applied on 31 August 2018 (amended a

second time on 23 August 2019) for a rehearing under s294 RMA of the decision of the

Court in the proceedings entitled SKP Incorporated v Auckland CounctP (the decision).2

[2] The present hearing occurred at the end of a significant passage of time in the life

of these proceedings, the detail of which we shall return shortly. The latest stage prior to

this hearing was the hearing by the Judge the day before (17 September 2019) of certain

urgent interlocutory applications made by SKP, in which oral indications were given on

the day of refusal of a request for recusal and conditional refusal of applications for

adjournment and the appointment of a MLC Judge. Reasons in writing confirming these

indications followed on 5 October 2019.3

[3] Section 294 RMA provides as follows:

294 Review of decision by [Environment Court]

(1) Where, after any decision has been given by the [Environment Court]. new and important

evidence becomes available or there has been a change in circumstances that in either case might

have affected the decision, the [Environment Court] shall have power to order a rehearing of the

proceedings on such terms and conditions as it thinks reasonable.

(2) Any party may apply to the [Environment Court] on any of those grounds for a rehearing of the

proceedings; and in any such case the [Environment Court], after notice to the other parties

concerned and after hearing such evidence as it thinks fit, shall determine whether and (if so) on

what conditions the proceedings shall be reheard.

(3) The decision of the [Environment Court] on any such proceedings shall have the same effect

1 [2018] NZEnvC 81. 2 The application on 23 August 2019 was the second amended application for rehearing, the first amendment to which was on 12 August 2019. A moderate amount of the time between the original application and the first amended one saw the proceedings on hold at the request of the parties while discussions were undertaken, but not the entirety of it. 3 Decision [2019] NZEnvC 165. We have noted that the Court was described as Principal Environment Judge L J Newhook sitting alone under s729(1) RMA; the section of course was s279(1) RMA. (The Act has become very substantial over the years but has not reached any1hing like 729 provisions!).

3

as a decision of the [Environment Court] on the original proceedings.

[4] The application for rehearing as it stood prior to 23 August 2019, was in the

following terms:

A: That the proceedings SKP Incorporated v Auckland Council [2018] NZEnvC 81 be reheard.

B: That any rehearing ordered be on the following terms and conditions, or other such terms and

conditions that the Court considers reasonable:

(i) The Court receive evidence from the Ngati Paoa Trust Board in support of SKP's

case; and

(ii) The Court rehear the issue of cultural effects and all issues reasonably informed or

affected by cultural issues, including:

• Landscape

• Ecology

• Social effects

• Planning issues

[5] In the second ("further") amended application for rehearing on 23 August 2019,

the applicant sought to add further topics, in summary mainly relating to coastal

processes, and traffic parking and transportation. The first aspect related to some

alleged changes in design of the marina since consent had been granted, and the second

related to a collection of allegedly new information about a new bus network, a new ten­

year Transport Plan on Waiheke, changes in freight services at the Kennedy Point Port,

reconstruction works on a boat ramp and wharf at Kennedy Point, changes in parking

restrictions in the locality and new information from traffic counts on the adjoining access

road. Affidavits were filed containing tentative early expressions of opinion about these

things.

(6) In a memorandum of counsel for the applicant on 27 August 2019, a description

was offered of research undertaken by the applicant into these new matters,

accompanied by a suggestion that the hearing date for the application for rehearing might

need to be vacated and further directions made in respect of the new grounds, in part to

allow the applicant time for further research and specialist advice about them.

[7] The structure of s294 is essentially that for a rehearing to be granted, one of two

preconditions must exist:

4

a) That new and important information has become available;

b) Or that there has been a change in circumstances ...

. . . that in either case might have affected the decision.

If one or both of those is found to have been met, the Court then has a discretion as to

whether to grant a rehearing. A helpful, and with respect accurate, description of how

these things work was offered by the Environment Court in a recent decision re

Queenstown Airport Corporation Limited":

On an application being rnade, the Environment Court is required to consider whether one of the

preconditions might have affected the decision. The requirement to consider the preconditions, as

Heath J has held, "invokes the concept of materiality rather than one of miscarriage or interests of

justice"; per Shepherd v Environment Court at [36]. The preconditions, which he describes as being

"prescriptive", are justified because the Court's decisions typically affect both the immediate parties

and the public generally. Thus s294(1} is focussed on the establishment of the preconditions and

the assessment of materiality.5

[8] The key issue raised in the application involves a dispute between two entities of

Ngati Paoa lwi, the Ngati Paoa lwi Trust (lwi Trust), and the Ngati Paoa Trust Board

(Trust Board). We will discuss the dispute in greater detail, but for introductory purposes

record in summary that the consent holder Kennedy Point Boatharbour Limited consulted

the lwi Trust during preparation of its resource consent application, and not the Trust

Board. SKP alleges based on information from the Trust Board, that the wrong entity has

been consulted due to misconceptions about mandate, with consequent alleged

misunderstandings on the part of the consent holder and decision-makers including this

Court as to effects on the environment, particularly matters of importance to iwi.

The factual background: a chronology

[9] It is relevant for present purposes to analyse not only the course of the

present proceedings since KPBL commenced preparation of its consent

application in mid-2016, but also key events in the mandate dispute between the

4 [2018] NZEnvC 52, at [9] (Judge Borthwick). 5 The references in the Queenstown decision are to Shepherd v Environment Court (NZHC) Auckland CIV-2011-404-3091, at paragraphs [36] and (37].

5

lwi Trust and the Trust Board; because the latter are at the heart of the present

allegations.

[101 It will save many words if we here set out a chronology in summary form.

The chronology is drawn largely from one proffered by counsel for KPBL at our

hearing, which we have critically compared with all relevant evidence, and altered

appropriately.

Date KPBL Application Trust Board/lwi Trust Events

1. 26 November 2009 Trust Board secures s.30 Te Ture Whenua Act Order from Maori Land Court.6

2. September 2013 Trust Board resolved on 7 September 2013 to transfer the day to day management operations and assets of the Trust Board to lwi Trust once ratified. That ratification occurred soon after.7

3. November/ Council updates its website December 2013 and iwi contact list to record

lwi Trust as the representative body for Ngati Paoa for RMA matters.8

4. 25 July 2014 lwi Trust granted party status to Matiatia marina application. 9

5. 17 December 2015 Environment Court refuses Matiatia marina application; lwi Trust recognised by Court as mana whenua authority for Ngati Paoa in reliance on agreement of joint cultural experts in the Matiatia case.10

6. 24 December 2015 Kitt Littlejohn (representing Tony Mair of proposing applicant entity) meets with Morehu Wilson and consultation with lwi Trust begins.11

7. April - August 2016 KPBL (now incorporated) commences public and stakeholder consultation,

6 Re Ngati Paoa Whanau Trust and Ngati Paoa Trust Board [2009] 141 Waikato MB 271. 7 Affidavit G Thompson, 13 June 2019, at [15]. 8 Affidavit AT R Ormsby 1 August 2019, at [16]. 9 Re Waiheke Marinas Limited [2014] NZEnvC 1 63, at [22) and [35]. 10 Re Waiheke Marinas Limited [2015] NZEnvC 218, at [435). 11 First Affidavit AG Mair, 13 June 2019 at [7) and [8].

6

including writing to all other Auckland mana whenua (listed on Council's website) in July 2016.12

8. 17 May 2016 KPBL pre-application meeting with Council.

9. 19 September 2016 l<PBL lodges resource consent application.

10. 14 October 2016 High Court decision on application that the Trust Board has failed to meet obligations and charter to maintain a register of Ngati Paoa members and to have a properly constituted board.13

11. 19 November 2016 l<PBL consent application publicly notified.

12. 16 December 2016 Public submission period closes.

13. March 2017 Trust Board completes election and reconstitutes its Board of Trustees. 14

14. 3-7 April 2017 Council hearing for KPBL application on Waiheke Island.

15. 18 May 2017 Council decision approving KPBL application released.

16. 9 June 2017 Appeals filed against Council decision by SKP Inc and R Walden.

17. 26 February- Environment Court hears 2 March 2018 appeals.

18. "Around April Trust Board becomes aware of 2018" the l<PBL application.15

19. 30 May 2018 Environment Court releases decision refusing appeals and confirming resource consent.16

20. 20 June 2018 Period for lodging any appeal to High Court expires.17

7

21. 27 June 2018 KPBL records that it commences project in reliance on consent.18

22. 9 July 2018

23. 31 August 2018 Sl<P files late appeal to High Court; also, this Application for Rehearing in Environment Court supported by Affidavits of TR Greve and DI Roebeck.

24. 12 September 2018

25. 6 December 2018

26. 12 December 2018

.

27. 21 December 2018

28. 21 December 2018

29. 18-20 December 2018

18 First Affidavit AG Mair, 13 June 2019, at [39] to [51]. 19 First Affidavit AG Mair, 13 June 2019, Exhibit A.

Trust Board writes "open letter" to KPBL, Council and others regarding lack of consultation with it on this marina proposal.19

lwi Trust files application in Maori Land Court seeking review of 2009 s.30 order declaring Trust Board the Ngati Paoa representative body under RMA and LGA, and seeking substitution of itself in place ofTrust Board. Maori Land Court hears lwi Trust application. Maori Land Court issues decision imposing an expiry date of 21 December 2018 on the 2009 s.30 order and directing mediation about Ngati Paoa representation for the future. 20

The s.30 order expires as ordered. Trust Board files notice of appeal in Maori Appellate Court - appeal adjourned sine die to await outcome of mediation.

Council advises lwi Trust and the Trust Board it will engage with both pending determination of issue of mandate, and its website updated to refer to both entities.21

20 Ngati Paoa /wi Trustv Ngati Paoa Trust Board [2018] 173 Waikato Maniapoto MB 51. 21 Affidavit ATR Ormsby, J August 2019, at [49] to [52].

8

30. March 2019 lwi Trust and Trust Board mediation undertaken but is unsuccessful. 22

31. 24 April 2019 High Court declines SKP application for leave to appeal out of time.23

32. 17 May 2019 Council and KPBL file joint memorandum seeking timetabling directions in this Court and a hearing at the first available date after 19 July 2019.

33. 24 May 2019 Judicial conference where (and 7 June 2019) timetabling directions

made. Minute issues confirming those directions on 7 June 2019.

34. 14 June 2019 KPBL files evidence from AG Mair, KRM Littlejohn, MA Schmack, G Thomson and M Wilson in response to SKP rehearing application.

35. 24 June 2019 SKP files application for leave to seek discovery against KPBL, Council and lwi Trust.

36. 24 June 2019 Trust Board applies for waiver to join SKP application for rehearing out of time.

37. 27 June 2019 KPBL files memorandum opposing any change to the current timetabling directions on account of SKP leave application or Trust Board application for waiver.

38. 27 June 2019 Council notifies Court that it cannot meaningfully respond to application for leave for discovery, that it is premature to suspend timetabling directions and that it will abide the decision on the s.274 notice.

39. 5 July 2019 KPBL files memorandum opposing Trust Board application for waiver.

40. 5 July 2019 SKP applies for discovery against KPBL and Council. (Previously it had only sought leave with no detail).

41. 11 July 2019 Council files notice of opposition in response to SKP discovery application.

42. 12 July 2019 KPBL files notice of opposition to Trust Board s.274 waiver and SKP discovery application and

22 Affidavit G Thompson, 13 June 2019, at [31]. 23 SKP Incorporated v Auckland Council [2019] NZHC 900.

9

files further affidavits from AG Mair, MA Schmack, KRM Littlejohn and RJ Blakey in relation to discovery.

43. 22 July 2019 Notice of hearing issued for 18 and 19 September 2019.

44. 29 July 2019 lwi Trust files notice of opposition to SKP discovery application.

45. 1 August 2019 Council files evidence from ED Wren and ATR Ormsby in response to SKP discovery/rehearing application.

46. 12 August 2019 SKP files amended application for rehearing, adding further cultural grounds.

47. 23 August 2019 SKP files further amended application for rehearing to add coastal processes and traffic grounds.

48. 23 August 2019 Environment Court refuses discovery application (with limited leave to renew) following outcome of rehearing application and adjourns Trust Board application for waiver to join until after outcome of rehearing application.24

49. 2 September 2019 KPBL files memorandum opposing both amended applications and third affidavit from AG Mair responding to coastal process and traffic grounds.

so. 2 September 2019 Council files memorandum and notice of opposition opposing amended application adding coastal process and traffic grounds.

51. 2 September 2019 lwi Trust files memorandum confirming not a party to rehearing application.

52. 11 September 2019 SKP files application to adjourn rehearing application.

53. 12 September 2019 SKP files application for the recusal of Judge Newhook.

10

54. 12 September 2019 l<PBL files memorandum opposing the adjournment and recusal applications.

55. 13 September 2019 Council files memorandum opposing the adjournment and recusal applications.

56. 17 September 2019 Hearing on adjournment and recusal applications. Oral indication of refusal confirmed in reserved decision on 5 October.

(11) While we have found it convenient to use the methodology of the chronology

tendered by KPBL, there were additionally many facts, dates and interpretations

recorded in evidence and submissions on behalf of the other parties which we will discuss

in this decision. We have also corrected some items in KPBL's chronology, added other

items, and changed some formatting.

The issues

[12) The areas in which SKP submits there to be new and important evidence or

changes in circumstances that in either case might have affected the Court's decision

are, broadly:

• Cultural issues and related topics that informed or were affected by them;

• Coastal processes including those affected by climate change;

• Traffic, parking and transportation in the vicinity of Kennedy Point.

Cultural issues

[13) We start with the legal principles stated at paragraphs 7 and 8 of this decision. Mr

Gardner-Hopkins acknowledged the following statement of the High Court in Shepherd25,

as follows: 26

In many other areas of the law a retrial may be ordered if the Court were satisfied that course best

serves the interests of justice. The more prescriptive terms of s294 are justifiable on the grounds

that decisions in the Environment Court tend to affect not only the immediate parties but members

of the public. The Court's public functions add emphasis to the need for finality in litigation, thereby

providing a solid foundation for a rehearing rule that is focussed on the establishment of the

25 16 ELRNZ 245 at [25]. 26 At [37).

11

particular criteria and assessment of materiality.

[14) Of slightly contrary flavour and relying on a decision of the former Planning

Tribunal Te Aroha Air Quality Protection Appeal Group v Waikato regional Counci/27, Mr

Gardner-Hopkins submitted that RMA proceedings are public law proceedings in which

"public interests may transcend the private interests of the parties, including fairness".28

If that decision was as he characterised it, we would consider it an over-simplification

because all cases are different, and one simple proposition like that cannot be applicable

on a broad front. We have read the decision and believe it sufficiently recognises

competing influences in cases that it does not purport to create a general rule or

approach.

(15) Mr Gardner-Hopkins submitted that the relevant public interests include (we

summarise) proper regard to sections 6(e), ?(a) and 8 RMA; ensuring the Environment

Court takes into account the views of the Trust Board as a recognised representative of

Ngatl Paoa iwi who hold mana whenua for the area (the Trust Board being completely

opposed to the marina and of the belief that waahi tapu is not to be compromised for any

price); and righting an injustice with the Court having been led to believe that a different

representative of Ngati Paoa, the lwi Trust, was the only Ngati Paoa entity entitled to

represent the iwi; the lwi Trust allegedly having a history of reaching commercial

settlements with developers in return for support.

(16) He submitted29 that there would be a serious injustice if the Court were to make

its decision without taking into account the views of the Trust Board, noting statements

about particular sensitivity to Maori issues under the RMA in the Privy Council decision

in McGuire v Hastings District Counci/3°, and the finding of the New Zealand Supreme

Court in Environmental Defence Society Inc v New Zealand King Salmon Co Limited31

that the obligation in s8 RMA to have regard to the principles of the Treaty of Waitangi

will have procedural as well as substantive implications which decision-makers must

always have in mind.

12

[17) Noting the submissions summarised above and having proper regard for the

criteria in s294 and assessment of materiality, we consider it important to look for

evidence to support them.

[18] As was pointed out by Mr Gardner-Hopkins, there seems no contention around

our earlier finding that Ngati Paoa iwi is the principal mana whenua of Waiheke Island

and its surrounding waters. The debates are instead about the entity or entities entitled

to represent the iwi. Much of the evidence of witnesses and submissions of counsel was

taken up with that debate. We will analyse them in this decision but were left with the

distinct feeling at the end of the hearing that there was a degree of common ground

among the parties on one aspect and that because that debate was unknown to us when

we made our first decision, it is probably "new" in terms of the first criterion. Questions

however remain as to whether it and related matters satisfy the second and conjunctive

aspect of the first criterion, "important"32. After which we should examine matters relating

to the second criterion as well.

[19) Mr Gardner-Hopkins turned to the Cultural Values Assessment (CVA) that was

produced by the lwi Trust and considered by us as part of the evidence in the original

hearing, referring particularly to the following statement:

Kennedy Point is within Putiki Bay and is part of the important cultural landscape of Te Rangi Houa.

[20) Of some note, he then said33 it should be known that the Trust Board does not

disagree with most of the lwi Trust CVA in terms of the background and identification of

the issues of concern and cultural values of importance to Ngati Paoa. Where the Trust

Board departed, he said, was in the application of those values to the proposed marina.

He then recited some key excerpts from the lwi Trust's CVA which formed part of the

matrix of evidence received and considered by us in the original hearing, including as to

matters of rohe, history of association, waahi tapu, mauri and the relevance of the Treaty

of Waitangi.

[21] In arguing that there was new and important evidence or that there had been a

32 It is also worth noting at this stage that the parties' arguments tended to focus much more on the first criterion than the second. 33 Submissions on behalf of SKP in support of application for rehearing, 18 September 2019.

13

change in circumstances, the lwi Trust submitted three essential facts:

a) The Trust Board held mandated or representative status, "at least formally",

through the 2009 Maori Land Court order under s30 Te Ture Whenua Act;

b) The Trust Board was fully constituted and was asserting its mandate or

representative status;

c) Irrespective of the lwi Trust's wish to have taken over the Trust Board's functions,

the lwi Trust knew that the Trust Board had been fully constituted and was

asserting its mandate or representative status.

[22) The Trust Board argued that those facts (as it asserted them to be) were not

known by, or put to, the Court at the original hearing and were not then in evidence and

are therefore new evidence now. In support of them qualifying as important, the Trust

Board argued that the new evidence goes to the heart of one the grounds for rehearing

and to one of the issues of importance before the Court of the original hearing, namely

its findings about effects of the proposal on cultural values.

[23] Alternatively, or additionally, under the second criterion, there has been a change

in circumstance because at the time of the original hearing the Trust Board was not

recognised by the Council as a mandated or representative authority of Ngati Paoa; that

since late 2018 the Trust Board has been so recognised by the Council and even while

expressed as an interim position, it remains a change in circumstances that sees the

Trust Board notified in respect of resource consent applications; that while the Maori Land

Court has now ordered that the 2009 Order expired in December 2018, the Court also

accepted that the Trust Board is entitled to represent Ngati Paoa in RMA proceedings;

and that notwithstanding the order made by the Maori Land Court terminating the 2009

Order in December 2018, the Trust Board is now recognised as a representative entity.

[24) A little strangely given his submission34 that "it is not uncommon for some people

within an iwi to hold different views", Mr Gardner-Hopkins exemplified the unfortunate

jockeying between the two groups35 by alleging that the Court would have been better

informed of the views of Ngati Paoa iwi by hearing from the Trust Board rather than the

lwi Trust.

-..,~ . '{;~

\ . ,)

14

[25] Complicating the mandate debate have been findings by two other Courts, the

High Court in 2016 and 2019 and the Maori Land Court in 2018 to the effect that the Trust

Board was legally in abeyance or inoperative during a period that happens, on the facts

before us, to equate more or less with a key period of the Matiatia marina case in this

Court, and the present case, extending almost up to the date on which we delivered our

first decision.

[26] The first case was an application to the High Court under the Trustee Act 1956

by Danella Patsy Roebeck alleging that the Trust Board failed to meet obligations under

its deed and charter of 2004 to maintain a register of all adult members of Ngati Paoa,

and that the board was not properly constituted because the number of properly elected

trustees was only 3 rather than 1 O as required and elections of trustees had not been

held as required36.

[27] As previously mentioned, the Maori Land Court issued a decision37 on 12

December 2018 in proceedings in which the lwi Trust sought revocation of the 2009

Order under s30 Te Ture Whenua Act (in favour of the Trust Board), and sought a fresh

Order naming it (lwi Trust) as the representative body. Having heard the considerable

debate about mandate between the two groups, and while refusing to make an Order in

favour of the lwi Trust. the Maori Land Court cancelled the 2009 Order as from 21

December 2018. Its key findings included the following:38

[60] All these points are well made but that does not mean that the 2009 s 30 order remains

effective. Rather it indicates the lwi Trust by incremental means, largely due to the legal abeyance

of the Trust Board between 2014 and 2017, has become the effective representative for Ngati Paoa.

This in practical terms, coupled with the matters listed by Mr Mahuika at paragraph 57(a)-(d),

rendered the 2009 s 30 order nugatory. In addition, the evidence is that the lwi Trust expected that

the primary iwi settlement would occur in 2014. The idea was that there would be a swift transition

from the Trust Board to the lwi Trust.

36 Despite having been served with the proceedings, the Trust Board was not represented before the High Court, having taken no steps. In the course of making Orders for interim governance, the compiling of the requisite register and election of new trustees pursuant to the deed, the Court held that failure to maintain the appropriate register was in breach of the deed, but indeed could not be undertaken because there was no properly constituted board [of trustees) . 37 Ngati Paoa lwi Trust v Ngati Paoa Trust Board 173 Waikato-Maniapoto MB 51.

38 At paragraphs [60] and [61].

15

[61) We note the evidence for the Trust Board was that it did not cease to operate in the period

2014-2017. However, what is omitted is the fact that the Trust Board was incapable of meeting the

requirements of its trust deed to ensure effective decision making for much of this period. The

following is a list of activities identifying how the remaining trustees and members of the Trust Board

engaged with the logistical difficulty of administering the activities of the Trust:

(a)Members were seeking advice in early 2014 with regard to the Stony Ridge quarrying consent;

(b)Members called for an AGM set for 14 April 2014;

(c)Members asserted representative capacity to the Auckland Council in March and April 2014;

(d)Members raised concerns about lwi Trust finances ln November 2015;

(e)Members joined with the lwi Trust to notify an AGM in November 2015;

(f)Members applied for and were granted a High Court order in October 2016;

(g)Trustee elections were conducted in March 2017; and

(h)The Trust Board claims to represent the lwi's cultural interests in relation to the Kennedy Point

Marina application, the America's Cup and a proposed 1080 drop.

[28] Findings to similar effect appeared in the decision of the High Court refusing the

application of SKP for leave to appeal out of time39 where the Court observed that:

The Trust Board ceased operating from 2014-2015 until early 201740 and that the Trust Board also

accepted that it was legally inoperative for a period between 2014 and 201741

.

[29] The findings of the two Courts in the three cases led to some quite elaborate

arguments among the parties about what they meant and the weight to be placed on

them. SKP argued that the Trust Board has challenged the Maori Land Court findings

by appeal to the Maori Appellate Court. Unsupported by evidence it seemed to us, Mr

Gardner-Hopkins endeavoured to assert that the recollection of the Trust Board was that

it had made a concession to the Maori Land Court that it was "less active in the RMA

space in that period" [2014-2017] but that it continued to operate; also that while it had

fewer than ten trustees, it did not consider that it was therefore legally inoperative. He

endeavoured to submit that the Trust Board was "continuing to operate", and that the

High Court appeared merely to echo the findings of the Maori Land Court and not conduct

a close examination of the evidence42. He endeavoured to persuade us that the finding

of the High Court about being "legally inoperative" was not central to its decision and so

39 SKP Incorporated v Auckland Council (2019} NZHC 900. 40 At paragraph [39](c). 41 At paragraph [21], opening submissions on behalf of SKP. 42 At paragraph [25] (a) to (e).

16

not binding on this Court. 43 In connection with his assertion that the Trust Board was

continuing to operate, he said simply:

... and additional evidence in this regards (sic] has been provided by Mr Roebeck in these

proceedings compared to the Maori Land Court proceedings.

We find that counsel's assertion is at least an oversimplification, and at worst is simply

incorrect. We can find almost nothing about the issues in the first statement of Mr D I

Roebeck of Ngati Paoa Trust Board in August 2018 except for passing reference to some

correspondence between itself and the Council about a quarry in 2014 and a statement44

which said that the Board did not pursue its concerns about the quarry for a number of

reasons including that a number of the trustees of the Board had resigned, were removed

for non-attendance, or had reached the end of their four year term, and it had focussed

its limited resources on other matters such as settlement negotiations with the Crown;

followed by a passing reference to new trustees of the Board being in place from 3 July

2017.

[30] In his second affidavit of September 2019, Mr Roebeck45 recorded that he would

not address the legal question but claimed that from a "practical or operational

perspective" the Trust Board continued to be "legally operative and active from 2013".

He pointed to correspondence filed in this case by Auckland Council which he asserted

demonstrated that the Trust Board was active, then made passing reference to the 2016

High Court proceedings without explaining why it was not represented in them, and qulte

assertively endeavoured to convey that it continued to operate and to "enforce its RMA

mandate". It is important to quote paragraph [96] from that affidavit:

(96] While I acknowledge that during 2013- 2016 there were occasions where the trust Board did

not have a full compliment (sic] of trustees (due to the resignation or removal of some individual

trustees) there was no period during which the Trust Board was not functioning, operative or active.

[31] Mr Roebeck does not claim to be legally qualified and had inconsistently said in

paragraph [88] that he did not address the legal question while in fact then proceeding to

do so. We find, as Mr Allan submitted, that Mr Roebeck's assertion was not supported

by evidence. It was simply that, an assertion.

43 Paragraphs [25) and (26). 44 At paragraph [36]. 45 From paragraphs (87) to [99).

17

[32] In his submissions on behalf of the Council, Mr Allan offered a detailed analysis

of the statements by Mr Roebeck we have mentioned, together with the findings of the

Courts and other features of the evidence. Perhaps most tellingly, he referred46 to the

evidence of Mr A Ormsby (Principal Advisor Tikanga at Council) who searched Council's

records for relevant correspondence, and recorded that from late 2014 until 2019 there

appeared to have been no correspondence between the Trust Board and the Council.

That indeed seems to be the evidence of Mr Ormsby.

{33] In his paragraph [114), Mr Roebeck claimed that since the election of new trustees

in 2016 and 2017, the Trust Board has continued to seek to enforce its Settlement

Mandate and RMA mandate and listed on an "inclusive" basis 15 initiatives, almost all of

which are with the Council and which the Council said related to the period from late

201847.

[34] On behalf of KPBL, Ms Morrison-Shaw submitted that an order under s30 Te Ture

Whenua Act does not and cannot confirm mandate where it does not otherwise exist.

Rather, it is the existence of a mandate which entitles persons to be recognised under

s30 as those "who are the most appropriate representatives of any group or class of

Maor/'48. Consequently, she submitted, a s30 order simply confirmed at the time it was

granted the Maori Land Court was persuaded that the persons before it were the most

appropriate representatives. She submitted that it does not bestow a perpetual right of

representation in the face of changes in circumstances which lead to the representative

mandate for an iwi becoming reposed in different persons. She submitted that the iwi

Trust had filled the representative space vacated by the Trust Board because, as found

by the High Court in 2016, the Trust Board had become legally inoperative.

[35] Of relevance, she submitted49 that the former s30 order has been cancelled

[December 2018] and there is no provision of Te Ture Whenua Maori Act by which an

appeal against it could revive the order; the Trust Board has tabled no evidence that it

has been through a mandating process; and that while the Trust Board has asserted a

46 At paragraph (60l(h) of his submissions. 47 Submissions of Mr Allan paragraph [60i]. ,•

' '48 s30(1)(b). 49 Paragraph [21] of her opening submissions. l

18

mandate, including in litigation with the lwi Trust in the Maori Land Court, an assertion is

insufficient to establish that such a mandate exists - appropriate evidence is required.50

{36] Interestingly, Ms Morrison-Shaw proceeded to submit51 that even if an Order

under s30 conferred status on the holder in the general legal sense, it would not be

determinative, in particular because there is no provision in the RMA that directs a

consent authority to give more weight to the evidence of one person over another based

on the fact that one of them holds a s30 order, and that under s104(1)(c), the existence

of a s30 order in favour of one of the parties could be a relevant matter to have regard

to, but is not a factor to be accepted over all others.52 We find her submissions on these

points to be an accurate interpretation of the workings of both Acts.

{37] Mr Gardner-Hopkins re-joined in his submissions in reply, questioning the findings

in the High Court as not being central to the findings in the two decisions. We record that

it is hardly appropriate for this Court to second-guess the accuracy or otherwise of

findings of the High Court. Even if they are only obiter, they must at least be recorded

significant respect. In any event we have found no evidence in the present case that

would encourage us to call in question the High Court's findings. Despite the assertion

by Mr Gardner-Hopkins in his opening that there is evidence from Mr Roe beck that helps

SKP and its supporter the Trust Board, we find to the contrary.

[38] Mr Gardner-Hopkins might have been on slightly stronger ground when he

pointed to the fact that there appears to be material from the Council demonstrating that

the lwi Trust itself has been legally inoperative at relevant times. It is most unfortunate

from the governance point of view that each of the groups may not have been legally up

to scratch and that their performance in the RMA arena waxed and waned. Ultimately,

the mandate debate does not, however, answer with finality the questions that must be

posed concerning the two substantive criteria in s294. We think it right to conclude from

the evidence in chief of the legal and project representative of KPBL, Mr K R M Littlejohn

and his answers in cross-examination, that KPBL as applicant had no reason to believe

that it was consulting with any Ngati Paoa entity other than one holding mandate; and

had no reason to consider that it should search for any other such entity.

50 Heybridge Developments Ltd v Bay of Plenty Regional Council (2011) 16 ELRNZ 593 at [51]. 51 At paragraph (31] of her opening submissions. 52 Foodstuffs (South Island) Ltd v Christchurch City Council (1999) 5 ELRNZ 308 (HC).

~ ..

19

[39) While the Council announced that it would abide the decision of the Court on the

rehearing application, it nevertheless offered evidence and submissions that we have

considered carefully. We have done this because SKP considered that the Council ought

to have regarded the Trust Board as the mandated representative of Ngati Paoa and to

that extent KPBL should be seen as cloaked with knowledge. The Council denied the

allegations through the evidence of its planning consultant witness, Mr E D Wren and

submissions of its counsel Mr Allan.

[40) First, we acknowledge and agree with the submission of Mr Allan that s36A RMA

explicitly provides that local authorities and applicants have no express duty to consult

any person about an application, and he very properly acknowledged that SKP was not

suggesting otherwise.

[41) It is well known however that it is good practice to seek consultation, particularly

with Maori interests, and the quality of an application can be significantly informed by

things learned in consultation.

[42) Mr Wren outlined in detail the extent of encouragement by the Council to KPBL

to consult Maori interests, including making a second attempt to consult those that did

not respond initially.53

[43] Mr Allan reminded us that the Council deliberately took an entirely neutral position

about cultural effects at the original hearing before the Court, leaving issues of cultural

effects to iwi to address. He reminded us of our approval of that approach in our

decision. 54

[44] As to the Council's alleged failure to advise the Court about the Trust Board, the

rehearing application asserts that the Council "knew that the Board claimed

representative status at the relevant times but refused or otherwise failed to recognise

the Board's representative status - and did not draw that issue to the Court's attention at

the hearing."55 It was also alleged that the Council contributed to a "mistake" or "mis-

53 ED Wren Evidence in Chief at (15]. 54 Paragraph {157). 55 Paragraph [1 ](c)(i) of Further Amended Notice of Application for Rehearing.

20

representation" in that way. 56

[45] As assumed by Mr Allan, it appears that SKP's reference to "relevant times", while

vague. is probably a reference to the Trust Board's letter of 3 July 201757 to the Council

focussing on other Environment Court proceedings about the Stony Ridge Quarry back

in 2013. There was evidently a meeting on the same date, but apparently no further

correspondence until the "open letter" of 9 July 2018.58

[46] In the absence of any evidence to the contrary, we find that the July 2017 letter

focussed on the Stony Ridge Quarry albeit containing discussion of the 2016 directions

of the High Court and subsequent rectification of governance problems. One very short

sentence at the end of that letter "Until our settlement claims are finalised we would

expect all correspondence relating to Ngati Paoa to be directed to this Board', can be

seen as an assertion of mandate. Mr Ormsby has acknowledged a communication

breakdown causing a lack of formal response to the letter. A detailed response and a

report on the outcome of an internal audit was provided to the Trust Board much more

recently, on 22 May 2019 following meetings on 7 August 2018 and 15 January 2019.59

[47] The letter from the Council to the Trust Board of May 2019 exhibited as item 27

to Mr Ormsby's affidavit discussed the governance difficulties of the Board after 2014,

acknowledges the other litigation including the continuing uncertainty deriving from the

Maori Land Court decision. some communication difficulties with emails, and confirms

the commitment in the letter of 18 December 2018 to engage with both Ngati Paoa

entities until the mandate dispute is resolved. These matters were further discussed by

Mr Ormsby at paragraphs [55] to [60] of his affidavit.

[48] While a counsel of perfection might suggest that the Council could have handled

these complicated relationships better, we find that there was no plan of deception on

the part of the Council, let alone an intention to mislead the Court. Further, there is no

basis for holding that KPBL could have taken steps to uncover the mandate dispute, there

having been nothing to trigger any such enquiry. Remembering again also that there is

56 Paragraph [4](c) of Amended Notice of Application for Rehearing.

_ ---· 57 Exhibited as H to First Affidavit of D I Roebeck .

.. •···\.:: u~ .. '.~~ 58 Item 22 in the Chronology in this Decision, and Evidence of Mr Ormsby at [38].

(

/ ::-~}· ,,,,-, ~\',/~ 59

Ormsby EiC paragraph [37].

l j ~."'. : t ~\ \ !~1~ ,. , '·. ~ l ,.u \ ,~~ \ ,· "':, .~.. ' :;' •:! ,~.~~ '- , \ .J.'

.,,9;._, ✓ \ ~ .. ' ,'

~, v,lj ~ 1fN f (',\)\ / I

21

no express duty to consult cast by the Act. As will be seen however, despite finding that

the mandate issue is "new" in terms of the first criterion in s294 RMA, we have come to

consider (for reasons which follow) that the mandate dispute is not in any event

determinative of the outcome of the rehearing application.

[49] There are some other factors to which we turn next concerning "importance" in

the first criterion and "change of circumstances" in the second.

[50] We note that the SKP application for rehearing60 asserts that the Trust Board

"strongly opposes" the marina. While we can be sure that Mr Roebeck holds strong views

to that effect, we find that we have been offered no evidence, let alone probative evidence

about the position of the Trust Board, with reasons. Leaving aside that in any event no

person has a right of veto over an application under the RMA61 , decision-making under

the RMA must be evidence-based. We consider it important in a case like this that the

reasons for the attitudes of those presenting them should be discernible.

[51) Our concern is based on several factors. First, we were provided no evidence

from any kaumatua of Ngati Paoa in support of the Trust Board's opposition. Secondly,

no evidence was offered by any of the trustees of the Trust Board; Mr Roebeck told us

in his evidence that he is the "Principal Officer" of the Board. Thirdly, Mr Roebeck claimed

no whakapapa to Ngati Paoa. Fourthly, Mr Roebeck claimed no relevant cultural

qualifications to allow us to assess his allegations of adverse effects on cultural values

including koiwi "possibly" buried in the foreshore and of the mauri of coastal waters.62

[52] There are some further factors. First, counsel for SKP Mr Gardner-Hopkins very

properly conceded63 that the Trust Board does not disagree with most of the lwi Trust

Cultural Values Assessment in terms of the background and identification of the issues

of concern and cultural values important to Ngati Paoa; it [instead] departs concerning

the application of those values.

[53) Under cross-examination by KPBL's senior counsel Mr Majurey, Mr Roebeck

..-:--:--......... 60 ,/..,. ,\>,,_ O,;'o.. Paragraph [1](a)(iii). 1 ...,,"'',.,...-- --..........__..;~'6-,, 61 See for instance Maungaharuru-Tangitu Trust v Hawkes Bay Regional Council [2017] NZRMA 147.

~

J}Ji/ · 1 , '-\-:_' 1 62 Affidavit of Mr Roebeck 31 August 2018 at [53].

~ ( • ' , ~ 163 At paragraph 9 of his opening submissions . ..- I r.,j

' I . \ '..._ ;/.._~ '\ l$': ,./,._~_-,)/ ~l?01Mr.~

22

gave candid and succinct answers. He confirmed that he was not Ngati Paoa; that he

had not been schooled in the whare wananga of Ngati Paoa; that however his wife

Danella Roebeck is of Ngati Paoa; that he knows Mr Morehu Wilson and that Mr Wilson

is a kaumatua of Ngati Paoa and fluent in Te Rea Maori; that Mr Wilson has a great

knowledge of the matauranga or knowledge of Ngati Paoa: that he is a widely respected

representative of Ngati Paoa; that Mr Wilson had been one of the mandated treaty

settlement negotiators for Ngati Paoa including for the Tamaki Collective settlement, the

Pare Hauraki Collective settlement, the Marutuahu Collective settlement and the Ngati

Paoa settlement. Mr Roebeck further confirmed that he had read the evidence of Mr

Wilson in the present case; he conceded that he agreed with it in principle; and having

said "in principle", conceded that there were no matters of culture and spiritual and mauri

that he wished to bring to the Court's attention.

[54] Mr Majurey asked Mr Roebeck about reason (e) for the Trust Board agreeing to

support SKP's application for a rehearing, which recorded:

(e) As an example, when Waiheke was occupied by Ngati Paoa, we didn't just reside in the

populated areas of today, we occupied the whole island and different hapu buried their dead

predominantly on the coastline. More koiwi than ever before are now being exposed around the

coastline ofWaiheke. The foreshore on the island is a waahi tapu environment and any disturbance

in these areas is likely to uncover our tupuna. Modifications made and consequences of the KBPL

[sic] proposal will impact on that waahi tapu.

[55] Mr Roebeck was tested by Mr Majurey on those assertions and in our judgment

was found wanting.64 In his initial answers to questions about the extent of koiwi,

particularly as to whether he meant the whole of the foreshore of Waiheke being a waahi

tapu, Mr Roebeck prevaricated with answers such as "It depends who is considering if'.

He then conceded "Probably not the whole of the foreshore". He was then forced to

concede concerning the foreshore in the application area that he was not qualified to say

whether it was waahi tapu - but that some of their trustees certainly consider that [to be

the case]. When pressed as to whether any disturbance in these areas is likely to

uncover "our tupuna" [the wording in (e)] in the application area, he said that was not

what he was saying, and"/ can't say thaf'.

64 Transcript p32 line 26 to p33 line 34.

23

[56] Mr Roebeck was then questioned by Mr Majurey about reason (f) in his paragraph

53 which read:

(f) We also have concerns about the mauri of the waters, and how the KBPL [sic] proposal will

impact on that mauri, whether it's disturbances, discharges and the like. That is an effect that can

be related to, but is not dependant on western science saying about ecological effects.

[57] On repeating in his answers that any physical activity or development in the

waters would impact on the mauri, he said "Quite possibly". His next answers were

troubling. On being asked "So if the Court grants a rehearing, how will it be assisted by

evidence on behalf of the Trust Board?", Mr Roebeck said "ff the Court grants a rehearing,

at that stage we will decide I guess". To the next question "And we won't know-?", Mr

Roebeck said "Because right now it's hypothetical'. Finally, to the question "Yes and so

you are saying we won't know until then", the witness responded, "/ don't know, I can't

answer you".

[58] It was confirmed in our minds that Mr Roebeck was not an appropriate person to

give cultural evidence, and in the absence of any appropriately qualified witness from the

Trust Board such as from a trustee, or a kaumatua of Ngati Paoa, or even at least

anybody with whakapapa to Ngati Paoa, the "importance" element of the first criterion is

simply not made out. Furthermore, Mr Roebeck's mostly honest and forthright answers

in cross-examination cut all ground from under the assertions he had made about cultural

matters in his affidavit.

[59] We were not assisted by the statement of Mr Gardner-Hopkins in reply65, as

follows:

The Court can be assured that if a rehearing is directed then the Trust Board will give careful thought

to its evidence and will put a thorough case forward to the Court for any rehearing.

[60] The statement was unhelpful because on the evidence before us on this

application SKP has not even got onto first base concerning alleged potential effects on

24

Maori cultural values. Phrased in terms of the first criterion under s294 RMA, while there

might be "new" evidence (to us), it has not been demonstrated there is "important"

evidence. 1t therefore follows that we perceive no new and important evidence that might

have affected the outcome in this case.

[611 We turn now to the second criterion, which was at best only faintly argued. Was

there a change in circumstances (that could affect the outcome of the case)?

[62] We do not consider that there was such. The mandate dispute between the two

entities of Ngati Paoa now brought to our attention in all its considerable sad detail, was

in reality a "steady state" situation. We have found that the mandate dispute is not a

determining factor in the present case. What is of importance is that the cultural matters

set out in the CVA by the lwi Trust, accepted in principle by the Trust Board, and the

evidence of kaumatua Mr Morehu Wilson for the lwi Trust, have not been successfully

challenged by SKP's rehearing application, even prima facie.

Coastal processes, and traffic parking and transportation

[63] We have previously described the cultural aspects as the key issues in this

rehearing application. In contrast, we were left with a distinct feeling at the end of the

hearing that these other issues are comparatively "make-weight", even opportunist.

[64] We tentatively gained this impression when reading the second amended notice

for rehearing, lodged less than four weeks before the scheduled hearing and after

evidence had been exchanged by KPBL and the Council. Another concerning feature

was the very preliminary nature of the supporting affidavits of Mr W J Edwards, traffic

engineer and Dr ST Mead, a coastal processes scientist.

[65] We agree with the submission on behalf of the Council by Mr Allan that the SKP

approach of raising these grounds, filing tentative opinion evidence and seeking a

significant period of adjournment while the witnesses further consider matters, runs

contrary to the public interest in finality of decision-making, timely disposal of proceedings

and the efficient operation of the RMA.66

66 See for instance Dayv Manawatu-Whanganui Regional Council [2013] NZEnvC 44 at paragraph [21]. We consider that the final sentence in the excerpt from the Shepherd decision in paragraph 13 of this decision

25

[66) As to coastal processes and climate change, the Council's declaration of climate

change emergency on 11 June 2019 might be widely regarded as an important event,

but it is a political statement and not a planning document. While it post-dates our original

decision, it is not a new public realisation, but more a "statement of the obvious" based

on science that was very much in the public domain at the time of the original hearing.

Neither is it a change of circumstances.

[67] Climate change was considered and assessed by relevant experts in the original

hearing and a political statement cannot alter the science that underpinned that evidence.

[68] Dr Mead's tentative statement at his paragraphs 48 and 49 about it being

"Possible that the effects of the proposed marina on coastal processes under the puNiew

of the Climate Change Declaration is likely to be more adverse than previously

considered or assessed' does not make sense to us, because it seems to be a non­

sequitur to suggest that the declaration could in some way physically render the effects

of the proposal on coastal processes, more adverse.

[69] We refer back to the joint witness statement on coastal processes for the original

hearing confirming agreement by the relevant experts including Dr Mead, that "The

floating breakwaters will result in a reduction of wave energy in the Jee of the

breakwaters", it having been noted by us in the decision that there would be a net positive

effect when we said: "We reiterate our findings about coastal processes to the effect that

attenuation of the wave climate in the Bay is likely to be of benefit to archaeological sites,

a positive effect on the environment'.

[70] SKP also raised the prospect of severe weather events such as have happened

recently in Auckland, to suggest it would be important there be a rehearing on the issue

of coastal processes.

[71] This cannot be new information for the purposes of s294 RMA. It has been

common knowledge in the public domain for some years that extreme weather events

are likely to be become more intense and frequent. We were interested in material

above. is apt in this regard.

.~-,..--·- ......

26

provided by Mr Allan from the Intergovernmental Panel on Climate Change67 in 2014,

which we accept as showing the issue has been in the public domain since well before

the time of our original hearing.

[72] We add that finality of litigation would be hindered if this sort of issue could be

opened in the way that SKP seeks. If there is anything in their concern, it might be a

matter for the consent authority to consider when reviewing conditions of consent under

s128 RMA.

[73] SKP also raised that KPBL has apparently applied to the Council for an additional

resource consent to replace the previously consented piles with an anchor and chain

system.

[74] This is a red herring in the present context. Any new consent application is a

separate process that would follow the usual steps ordained by the Act. That separate

application is not before the Court.

[75] The allegation about changes in traffic circulation, parking and public

transportation near Kennedy Point is another issue that flies in the face of the public

interest in achieving finality in litigation. The marina has been consented and therefore

forms part of the environment.68 Any proposed future developments such as ramp

extensions, wharf reconstruction or public transport facilities, will need to be assessed

against the existing environment including the consented marina.

[76] A new bus network in the vicinity is an example of what can occur in or near a

residential area and cannot have the legal effect of calling in question existing consents.

In any event, issues with traffic occasioned by the construction or operation of the marina

can be handled under condition 7 of the consent which provides for monitoring and review

of conditions.

(77] It must also be remembered that four traffic experts including SKP's then retained

expert Mr C MacArthur, participated in expert conferencing at the time of the original

......... " •.'Vt-.·:·, ·• i,;.<'~. - • 11

~~\ 67 5th Assessment Synthesis Report: Summary for Policymakers 2014. · J(/ ~ 1 • · ·\- '{I\ l 68 See for instance Queenstown Lakes District Council v Hawthorne Estate Ltd [2006) NZRMA 426 at

· '\l: • ...... \ ~ • ~: 1 paragraph [84).

~ ~-- -. J/:;,1 '.. . ;,,,A I RG;~~o/ -.,,.._~

27

hearing and agreed that traffic related impacts would be minor.69 The traffic experts in

fact did not need to be questioned in Court in that hearing.

[78] We hold that these further matters raised in the Further Amended Notice of Motion

for Rehearing are not new and important information, do not represent changes in

circumstances and would not have affected the outcome of the hearing.

Conclusion

[79] We refuse the application for rehearing and reserve the issue of costs.

[80] For completeness, we recall that the applications for adjournment and for the

appointment of a Maori Land Court Judge to sit with us in these proceedings must be

finally disposed of. We refuse those applications. The application for appointment of a

Maori Land Court Judge was, in summary, on the basis advanced by Mr Gardner­

Hopkins that the application for rehearing would involve difficult Maori issues. That did

not prove to be the case, because the main focus was on management and

administration of incorporated entities pursuant to very "western" processes. The

references to Maori cultural matters were prospective rather than based on actual

evidence from relevant witnesses and we have not needed the sort of assistance that

this Court sometimes engages from its own Maori Commissioners or from Maori Land

Court Judges.

[81] Finally, Item 48 in our chronology shows that the Trust Board applied to join the

proceedings and sought a time waiver. The Judge adjourned the waiver application on

23 August 2019 pending the outcome of the rehearing application. The rehearing

application now having been refused, there is nothing for the Trust Board to join as a

party and the waiver application is refused. Costs reserved.

69 Joint witness statement on traffic and transportation at paragraph [32].

28

For the Court:

L J Newhook

Principal Environment Judge