Background to the Environment Court Interim Decision

In July 2019, the Environment Court heard an appeal from ourselves,  Department of Conservation (DOC),  Te Korowai Tiaki O Te Hauauru Inc, Poutama Kaitiaki Charitable Trust and D&T Pascoe against the independent Commissioner's Decision and the NOR Decision regarding resource consent for an alteration of the current designation for SH3 (to enable the construction and operation of a new 6km section of highway to bypass the existing 7.4km section). 

Our appeal was on the grounds that, while we had been in discussions with New Zealand Transport Agency (NZTA) on reaching agreement on measures to address the adverse cultural effects of the Project, we had not yet a final agreement, and, in order to preserve our position, we sought provisions to address the adverse cultural effects. We also opposed the conditions that provided for the direct involvement of others (in this case Mr and Mrs Pascoe) in a Kaitiaki Forum Group.   
  

Key points from the Environment Court findings for us are that:

• ‘Ngāti Tama has mana whenua over the Project area and it is appropriate that it be the only body referred to in conditions addressing cultural matters’.

• NZTA ‘has (correctly in our view) proceeded on the basis that it would be wrong to once again use the Crown's coercive powers against Ngāti Tama in order to re-acquire their land. It has instead proceeded on the basis that the Project will only go ahead if it were able to gain the consent of Te Rūnanga for the Ngāti Tama Land. Extensive mitigation and compensation proposals have been negotiated, and the iwi will decide whether or not to accept them’.

• 'Mrs Pascoe is not kaitiaki in the sense the term 'kaitiakitanga' is used in the Act. The relationship the Pascoes have with their land is one of stewardship.'

• 'The adverse social impact of the Project on the Pascoes is severe. We consider, however, that proposed condition 5A will mitigate those effects to the extent possible if the Project is approved and proceeds and the Pascoes accept the Agency's offer to buy their house, the land on which it sits, and the other land that is required for the Project.'  

• The Court noted that while there is no statutory obligation on requiring authorities or consent applicants to consult, the Transport Agency's consultation was ‘extensive and detailed.’

• ‘Poutama are not tangata whenua exercising mana whenua over the Project area. It follows, therefore, that it is not appropriate that it be recognised in any consent conditions addressing kaitiakitanga that may issue.’

The proceeding is adjourned to 31 March 2020, and on that date NZTA is to file a memorandum advising the Court of the state of negotiations with the Rūnanga. 

For the complete Summary of findings, refer to pages 108 – 112.