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Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2022] NZHC 1846 (1 August 2022)

Last Updated: 6 October 2022

JUDGMENT OF HINTON J

THE TRUSTEES OF THE MOTITI ROHE MOANA TRUST v BAY OF PLENTY REGIONAL COUNCIL [2022] NZHC 1846 [1 August 2022]

This judgment was delivered by me on 1 August 2022 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ...............................

Counsel/Solicitors:

J Maassen, Barrister, Wellington Kaupare Law and Consultancy, Auckland Cooney Lees Morgan, Tauranga

Bay of Plenty Regional Council, Whakatane

Continued ...

CIV-2020-470-111

UNDER the Judicial Review Procedure Act 2016 AND

IN THE MATTER of an application for judicial review concerning a

statutory power of decision under the Resource Management Act 1991

BETWEEN THE TRUSTEES OF THE MOTITI ROHE MOANA TRUST

First Plaintiff

NGĀTI MĀKINO HERITAGE TRUST

Second Plaintiff

TE MARU O NGĀTI RANGIWEWEHI

Third Plaintiff

AND BAY OF PLENTY REGIONAL COUNCIL

Defendant

Introduction

• [1] The case concerns the decision of the Bay of Plenty Regional Council (the Council) to withdraw Proposed Plan Change 9 (PC9)¹ of the Bay of Plenty Natural Resources Plan (the regional plan).²

• [2] The trustees of the Motiti Rohe Moana Trust (MRMT) bring both an appeal and judicial review in respect of the Council’s withdrawal of PC9. The proceedings were heard together but sequentially as they involve discrete issues.

• [3] The Council made the withdrawal decision under Schedule 1, cl 8D of the Resource Management Act 1991 (RMA). Clause 8D allows a Council to withdraw a plan change at any time prior to the hearing of an appeal against the plan change, provided public notice of the withdrawal is given, together with reasons for the withdrawal. It is not disputed that cl 8D was complied with on its face.

• [4] MRMT’s arguments (in both proceedings) rely on the fact that PC9 related, inter alia, to freshwater rights and interests on Motiti Island. MRMT is one of a number of Māori entities³ which are vitally concerned with regard to those rights and interests. MRMT says this introduces Treaty of Waitangi considerations in terms of s 8 of the RMA.

• [5] MRMT did not have a right under the RMA to lodge an appeal against Council’s decision to withdraw a plan change. However, there was (and is) a right to seek judicial review in this Court. Section 296 of the RMA, which restricts judicial review in this Court until appeal and inquiry rights in the Environment Court are exhausted, does not apply in this case.

• [6] In the first instance MRMT did not apply for judicial review in this Court. It applied to the Environment Court for declarations under s 310 of the RMA that the Council’s decision to withdraw was unlawful. This was on the grounds the Council breached the s 8 duty (requiring the principles of the Treaty to be taken into account in certain circumstances) and that no rational local authority complying with the s 8 duty would reach the conclusion withdrawal was appropriate.

¹ Called “Region-wide Water Quantity Plan Change”.

² Previously called the Regional Water and Land Plan.

³ MRMT is not an iwi or hapū, however it represents tangata whenua on Motiti Island.

• [7] The Environment Court declined to make the declarations sought on the basis of a preliminary finding that it lacked jurisdiction to do so. Inter alia, the Environment Court said that an application for judicial review (which it found this essentially was) is a matter for the High Court.

• [8] While accepting the proceeding filed in the Environment Court was the equivalent of a judicial review application, MRMT otherwise challenges the interim decision of the Environment Court declining jurisdiction under s 310.

• [9] MRMT also separately applies to this Court for judicial review of the Council’s decision to withdraw PC9. The key ground remains that the Council’s decision was unlawful because it breached s 8 of the RMA.

• [10] The Council accepts that its decision to withdraw PC9, being an administrative local body decision, is subject to judicial review by this Court. It says, in relation to the appeal, the Environment Court was right to decline a (parallel) power to review.

• [11] Initially MRMT was joined by two iwi parties in respect of the judicial review application (not in respect of the appeal from the Environment Court). The other two parties have now withdrawn.

Preliminary matters

• [12] Given the Council’s decision is now being reviewed in any event in this Court, MRMT, while not withdrawing its appeal of the Environment Court’s jurisdiction decision, does not seek any substantive relief on the appeal. (It was previously seeking an order that the matter be referred back to the Environment Court, which if granted would presumably have meant the judicial review application in this Court would not have gone ahead.)

• [13] In these circumstances, the appeal is almost entirely academic. It does not alter anything between the parties other than the question of costs. Mr Maassen for MRMT says the question of the scope of the Environment Court’s powers is nonetheless important for subsequent cases. He says it is important tangata whenua have wide access to the specialist Tribunal on RMA matters. I note his point but there is also no question that the High Court has the jurisdiction which Mr Maassen argues the Environment Court should also have and that the High Court has specialist experience in judicial review proceedings. The question really comes down to the

extent to which the two jurisdictions overlap, that is, the extent to which a party can choose between the two Courts.

• [14] While I have some concerns as to whether I should be considering the issues raised on the appeal in circumstances where the point is substantially moot, the parties argued the appeal and I address it.

Background

• [15] The regional plan was made operative on 1 December 2008.

• [16] PC9 would have inserted provisions in the regional plan to give effect to the National Policy Statement on Freshwater Management (NPS-FM). The NPS-FM 2011 was promulgated in 2010 and subsequently replaced by the NPS-FM 2014. The latter was amended in 2017.

• [17] PC9 was part of the Council’s NPS-FM 2014 implementation programme. It addressed regional issues relating to allocating water, such as setting up a metering and reporting framework, strengthening the framework for decision-making, including clearer interim limits to water allocation and improving the efficiency of water allocation and use. As part of that, it proposed a policy framework for working with tangata whenua and the community on local water quantity planning actions.

• [18] Certain previous amendments to the plan related to aspects of the NPS-FM that were required to be implemented by insertion in the plan without a Schedule 1 process.

• [19] A draft of PC9 was consulted on in August 2015. It was notified by the Council on 18 October 2016. Hearings of submissions commenced in March 2018 and the Council’s decisions on submissions were publicly notified on 9 October 2018. Fourteen appeals were filed by 21 November 2018 including by MRMT. In addition, 26 parties filed notices under s 274 of the RMA to become a party to these appeals. A court-assisted mediation process occurred during 2019. It was unsuccessful.

• [20] A draft NPS-FM was released by the Ministry for the Environment on 1 September 2019. It was intended to be a full replacement of the NPS-FM 2014 (as amended in 2017). This draft would become the NPS-FM 2020, which significantly developed the “fundamental concept” of Te Mana o te Wai. In short, the concept requires local authorities to prioritise the health and well-

being of the water body itself before human uses can be provided for. Implementation of Te Mana o te Wai was to require:⁴

a) adopting the priorities set out in the hierarchy of obligations;

b) providing for the involvement of iwi and hapū in freshwater management and identifying and reflecting tangata whenua values and interests;

100. engaging with tangata whenua and communities to identify matters that are important to them in respect of waterbodies and their catchments;

d) enabling the application of broader systems of values and knowledge, such as mātauranga Māori, to the health and wellbeing of waterbodies and freshwater ecosystems;

e) adopting an integrated approach, ki uta ki tai, to the management of waterbodies and freshwater ecosystems.

• [21] By late 2019, Council officers had become concerned about the utility of proceeding with PC9 in light of the nature and extent of the outstanding issues raised by the appeals against PC9 and uncertainty associated with proposed changes to national freshwater management and the NPS-FM.

• [22] On 18 February 2020, the Council’s Strategy and Policy Committee received a report dated 13 February 2020 from the Council’s General Manager – Strategy and Service on the options for dealing with PC9, which included the recommendation to withdraw the plan change in full (the 13 February report). The Committee accepted the recommendation and resolved to withdraw PC9 in full. Its resolution set out the following reasons:

a) Fundamental differences of opinion remain on key issues which are unlikely to be resolved without proceeding to Court.

b) Resolution of outstanding appeals is unlikely to occur until after the National Policy Statement for Freshwater Management [2020] is gazetted and implementation under way.

100. Continuing to pursue the resolution of the appeals would therefore be an inefficient use of resources, given new national direction on freshwater is imminent.

4. Ministry for the Environment Draft National Policy Statement for Freshwater Management: Proposals for consultation September 2019 (1 September 2019) at [1.5].

   d) Future processes and associated plan change(s) following the gazettal of the NPS- FM [2020] will enable better integration of water quality and water quantity and provide greater clarity in relation to Te Mana o Te Wai, which has been a key issue in the appeals.

e) Withdrawing PC9 will not create a planning vacuum, consents will continue to be processed under the Operative Plan having regard to the current NPS-FM [2014].

• [23] The Committee also resolved to seek direction from the Council’s Komiti Māori on how best to move forward with tangata whenua in freshwater management and policy development, to be reported back to the committee.

• [24] The resolution to withdraw PC9 was publicly notified on 25 February 2020 with the five reasons set out as resolved by the Council above.

• [25] As a consequence of the Council’s withdrawal, the 14 appeals were all treated as abandoned.

Appeal against Environment Court’s interim decision

• [26] On the appeal MRMT says the Environment Court erred, in summary, in the following ways:

(a) in addressing the question of jurisdiction on a preliminary basis without consideration of the merits, or without assuming the grounds for the declaration were correct;

(b) by referring to evidence, having determined that the jurisdictional question was a purely legal one; and

(c) by determining that s 310 of the RMA did not confer jurisdiction.

• [27] MRMT made its application to the Environment Court under s 310 of the RMA. As noted, MRMT acknowledges, at least in this Court, that the declaration sought was equivalent to an application for judicial review, but says s 310 gives the Environment Court that jurisdiction.

• [28] With the relevant provisions emphasised, s 310 provides:

310 Scope and effect of declaration

A declaration may declare—

(a) The existence or extent of any function, power, right, or duty under this Act,

including (but, except as expressly provided, without limitation)—

(i) Any duty under this Act to prepare and have particular regard to an evaluation report or to undertake and have particular regard to a further evaluation or imposed by section 32 or 32AA (other than any duty in relation to a plan or proposed plan or any provision of a plan or proposed plan); and

(ii) Any duty imposed by section 55; or

(b) whether, contrary to section 62(3), a provision or proposed provision of a regional policy statement—

(i) does not, or is not likely to, give effect to a provision or proposed provision of a national policy statement or New Zealand coastal policy statement or a national planning standard; or

(ii) is, or is likely to be, inconsistent with a water conservation order; or (ba) whether a provision or proposed provision of a regional plan,—

(i) contrary to section 67(3), does not, or is not likely to, give effect to a provision or proposed provision of a national policy statement, New Zealand coastal policy statement, or regional policy statement for the region or a relevant provision or proposed provision of a national planning standard; or

(ii) contrary to section 67(4), is, or is likely to be, inconsistent with a water conservation order, any other regional plan for the region, or a determination or reservation of the chief executive of the Ministry of Fisheries made under section 186E of the Fisheries Act 1996; or

(bb) whether a provision or proposed provision of a district plan,—

(i) contrary to section 75(3), does not, or is not likely to, give effect to a provision or proposed provision of a national policy statement, New Zealand coastal policy statement, or regional policy statement or a relevant provision or proposed provision of a national planning standard; or

(ii) contrary to section 75(4), is, or is likely to be, inconsistent with a water conservation order or a regional plan for any matter specified in section 30(1); or

(c) Whether or not an act or omission, or a proposed act or omission, contravenes or is likely to contravene this Act, regulations made under this Act, or a rule in a plan or proposed plan, a requirement for a designation or for a heritage order, or a resource consent; or

(d) Whether or not an act or omission, or a proposed act or omission, is a permitted activity, controlled activity, discretionary activity, non- complying activity, or prohibited activity, or breaches section 10 (certain

activities protected) or section 20A (certain existing lawful activities allowed); or

(e) The point at which the landward boundary of the coastal marine area crosses any river; or

(f) Whether or not a territorial authority has made and is continuing to make substantial progress or effort towards giving effect to a designation as required by section 184A; or

(g) The matters provided for in section 379 (provisions deemed to be plans or rules in plans); or

(h) any other issue or matter relating to the interpretation, administration, and enforcement of this Act, except for an issue as to whether any of sections 95 to 95G have been, or will be contravened.

Environment Court interim decision on jurisdiction

• [29] Chief Environment Court Judge Kirkpatrick considered whether the issue of jurisdiction should be determined as a preliminary issue. He noted MRMT’s arguments that (a) the principles of the Treaty militate against deconstructing an argument into matters of jurisdiction and substance; and (b) Ngāti Apa v Attorney-General warns that abstract questions might be at risk from erroneous assumptions of fact if heard preliminarily, especially when customary rights are in issue.⁵ However, the Judge concluded that, given the existence of High Court authority on the question of jurisdiction, it was a clear-cut and narrow question that could appropriately be determined on a preliminary basis.

• [30] The Judge then considered in some detail case law relating to the scope of the Environment Court’s declaratory power and the scope of Schedule 1, cl 8D of the RMA.⁶ He noted the power to judicially review administrative decisions stems from the High Court’s inherent jurisdiction as the successor to the original jurisdiction of the superior courts of Justice of England. He then turned to assess the Environment Court’s declaratory power, which is established and defined by ss 310–313 of the RMA. The Judge noted the detailed text of s 310 indicates the Environment Court should give particular attention to the type of declaration being sought. He also pointed out that Berryman v Waitakere City Council held the power does not extend to making declarations relating to defects of an administrative nature.⁷

⁵ Ngāti Apa v Attorney-General [2003] NZCA 117; [2003] 3 NZLR 643 (CA).

6. Berryman v Waitakere City Council NZEnvC A046/98; Cotter v Christchurch City Council Decision C17/79; Uruamo v Carter Holt Harvey Ltd PT A43/96; Minister of Conservation v Whakatāne District Council [2003] NZEnvC 446; [2004] NZRMA 529 (NZEnvC); Kitewaho Bush Reserve Co Ltd v Auckland Regional Council [2003] NZEnvC 88, [2003] NZRMA 544; West Coast Regional Council v Royal Forest and Bird Protection Society Inc [2007] NZRMA 32 (HC); and Coastal Ratepayers United Inc v Kapiti Coast District Council [2017] NZHC 2933.

⁷ Berryman v Waitakere City Council NZEnvC A046/98.

• [31] Next, the Judge considered s 310(a), (c) and (h). He said the declarations sought by MRMT went beyond the scope of subss (a) and (c). Under subs (a) a declaration could be made as to the express requirements of cl 8D (timing, notice, the giving of reasons per se) but those matters were not in issue. Similarly, because it was not disputed the Council had fulfilled the express requirements of cl 8D, subs (c) was not engaged. The “catch-all” subs (h) was designed to fill any gaps arising from the preceding subsections. He held it could not extend to a power to judicially review administrative action.

• [32] Judge Kirkpatrick also found that the Environment Court does not have a general supervisory jurisdiction.

• [33] Finally, the Judge considered the principles of the Treaty of Waitangi. He found that the scheme relating to plan-making in the RMA provided for tangata whenua participation to ensure access to customary rights to fresh water. There was no need to interpret s 310 more expansively to give effect to the principles of the Treaty. Further there was no gap in the regional plan contrary to the principles of the Treaty, as claimed by MRMT, because the Council was under an obligation to give effect to the NPS-FM by notifying another plan change.

• [34] The Environment Court Judge determined that MRMT’s application for declarations was in the nature of an application for review and concluded:⁸

... that the Environment Court does not have the jurisdiction to make a declaration where that would amount to a review of an administrative action of a council acting within a power expressly given to it by the RMA. In particular, I conclude that s 310 of the RMA does not authorise the review of any decision made under cl 8D of Schedule 1 to the RMA beyond determining whether the express conditions as to timing and the giving of notice and reasons have been satisfied. I therefore refuse the application by MRMT for declarations.

First ground of appeal – jurisdictional issue should not have been determined on a preliminary basis

• [35] It cannot be disputed that the Environment Court, as with other courts, can consider issues such as jurisdiction on a preliminary basis and I do not take MRMT to argue otherwise.

• [36] Rather, the argument is that it was inappropriate to deal with a preliminary issue of jurisdiction in a case such as this. Mr Maassen submits that tikanga requires hearing out the

8. The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2020] NZEnvC 180 at [100] (emphasis added).

whole argument – and that is not achieved by hearing just a preliminary point. Section 269 of the RMA requires the Environment Court to recognise tikanga where appropriate in regulating its proceedings, and the courts have recognised that environmental matters uniquely draw on tikanga. So, Mr Maassen submits the Court had to decide jurisdiction while taking tikanga into account. He relies again on Ngāti Apa.⁹

• [37] I cannot see that this is a case where tikanga principles mean the Court should have taken a different approach from the standard approach to jurisdiction issues. The position might be different if there were not alternative jurisdiction or if there were a tikanga or Treaty-based argument that the appellant would be materially better off before the Environment Court than before the High Court but I am not persuaded that is the case.

• [38] There does not seem to be any authority for Mr Maassen’s proposition that jurisdiction should not be determined on a preliminary basis. Ngāti Apa is not such an authority. Rather, it was a case where the Māori Appellate Court stated a case to the High Court – which was subsequently appealed to the Court of Appeal – to clarify points of law. In particular, there was a question as to the Māori Land Court’s jurisdiction to hear claims relating to the foreshore and seabed. Although the Chief Justice warned that abstract legal questions may be misleading without reference to the facts, the jurisdiction question did not appear to be the subject of this comment.¹⁰ In fact, that was the only question the Judge was willing to determine without reference to full factual argument.¹¹ As the Environment Court in the decision appealed from stated, the question of jurisdiction is essentially a matter of statutory interpretation going to the boundaries of the case rather than to any rights and interests within those boundaries. Similarly here, I see no reason why the bare issue of jurisdiction could not be determined on a preliminary basis, even when tikanga arguments or considerations form part of the substantive case.

• [39] While I am attracted to Mr Maassen’s general proposition that in a matter involving an iwi group, the korero should not be interrupted or partial, here there was at best only an interruption. MRMT was stopped at the door of the Environment Court, but the argument being advanced could still proceed by way of judicial review in this Court. Indeed, had MRMT filed its application for judicial review only in this Court in the first place, there would have been no

⁹ Attorney-General v Ngāti Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA) at [5].

¹⁰ See at [90]: I consider that it is appropriate to answer only the first question [as to jurisdiction] posed for determination, and then in terms slightly different from the wide way in which it was worded. The subsequent questions depend on the facts.

¹¹ At [91].

interruption at all. The interruption has been brought about solely by MRMT’s own tactical decision.

• [40] Further, as what seemed to be a corollary or extension of his argument, Mr Maassen said that the approach Judge Kirkpatrick should have taken was to consider whether, even if the declarations were all granted, he still considered the Court did not have jurisdiction. In other words, the Judge should address the application as if there were jurisdiction and then go back in light of the conclusion reached to consider whether the assumed jurisdiction was correct. No authority was cited for this proposition. Mr Maassen analogises to the approach taken on a strike- out application where the pleading in a statement of claim has to be substantially assumed to be correct. But these are entirely separate issues. It is not appropriate for a court to consider the merits of a case if it does not have jurisdiction to do so.

• [41] The first ground of appeal is rejected.

Second ground of appeal – the Environment Court should not have referred to the evidence

• [42] MRMT argues that the Environment Court erred by addressing the merits of the application to withdraw PC9, and by relying on the evidence of the Council when it should have treated the matter as “a pure question of law”. Mr Maassen points to [97]–[99] of the Environment Court decision to support his argument that the Court wrongly relied on the merits and the evidence.

• [43] Those paragraphs state as follows:

• [97] The argument that the withdrawal of Plan Change 9 leaves a gap in the regional plan which is contrary to the principles of the Treaty is not as strong a reason to review the Council’s decision as it may at first appear. Plan Change 9 is intended to address and give effect to the NPS-FM. If there is a gap in the plan, then as the Council must give effect to the NPS-FM, so the withdrawal of Plan Change 9 must be followed by the notification of another change to the plan to address that. The position of the Council is that it intends to do so. It is unclear how long that may take, but that question is not presently before the Court. The history of this matter, and the Court’s experience with other cases involving the management and allocation of freshwater, indicate that these issues are generally not easy to address and take some time given the devolved participatory regime under the RMA.

• [98] It is also important in any consideration of this issue to note that the making of plans is not a council-controlled monopoly: plan changes may be requested by any person under Part 2 of Schedule 1 to the RMA. While the public do not bear any responsibility to draft plan provisions which the council is required to prepare, the option requesting such a plan change is one way in which the matter could be advanced.
• [99] Those considerations demonstrate the ways in which tangata whenua can participate in the plan-making process, which is consistent with the principles of the Treaty. There may be disagreements as to this approach being taken and the time it is taking, but those disagreements do not by themselves demonstrate inconsistency with the principles. In my judgment, the circumstances of this case do not require any more expansive interpretation of s 310 of the RMA to enable the Environment Court to review the Council's decision under cl 8D of Schedule 1 in order to take into account or give effect to the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

• [44] I do not consider the Judge is relying on the merits or evidence (other than as undisputed) in the statements he makes in these paragraphs, which are themselves more like concluding observations in his judgment. Consistent with that view, Mr Maassen did not say which of the statements made were in error and why that was so. He refers in particular to the Judge’s reference at [99] to “the circumstances of this case”. That is entirely orthodox language and cannot be read any more widely than the judgment as a whole.

• [45] In my view the Court took account only of uncontested facts, for example, that the Council intended to notify a new plan. Even that is more in the nature of a statement of the law because the Council would be required to do so as it must give effect to the NPS-FM. Otherwise, the Court was not relying on the evidence

• [46] In relation to the evidence of the Council set out at [21]–[23] of the Environment Court judgment, as Ms Hill for the Council submits, the Court was summarising the evidence filed for context.

• [47] Ultimately, I am satisfied that the Environment Court dealt with the issue as a question of law and did not take account of disputed facts. I also consider the Environment Court was correct to deal with the issue in this way.

• [48] The second ground of appeal is rejected.

Third ground of appeal – the Environment Court was wrong to decline jurisdiction

• [49] MRMT says that on a plain reading, s 310 gives the Environment Court power to make a declaration for illegality of the type it seeks. It relies specifically on s 310(a), (c) and (h).

• [50] Before turning to consider those subsections, I make some general observations.

• [51] First, Mr Maassen accepts that his argument would give the Environment Court a power of judicial review (on RMA matters) equivalent to or the same as the High Court.
• [52] It is however a matter of longstanding authority that the High Court (only), has a power of judicial review, and other courts do not.¹²

• [53] Second, there is no authority in support of Mr Maassen’s submission as to the ambit of s 310, nor any case where a declaration in the nature of judicial review has been made with or without consideration of the power to do so. I address Mr Maassen’s contention that Royal Forest and Bird Protection Society v New Plymouth District Council is such an authority below.¹³

• [54] Third, there are at least two decisions of the Environment Court where the Court expressly said it did not have power to make a declaration as to legality of a Council’s actions. These are Berryman v Waitakere City Council and Liu v Auckland Council.¹⁴ Judge Kirkpatrick discussed Berryman accurately as follows:

• [51] In Berryman v Waitakere City Council the Environment Court considered a petition, which it deemed to be an application for a declaration under s 311 of the RMA, seeking to defer the sale and development of certain land until relevant provisions of the proposed district plan had been determined. The scope of the Court’s jurisdiction was in issue, and it referred to several decisions including Cotter v Christchurch City Council and Uruamo v Carter Holt Harvey Ltd.

• [52] The Court summarised those decisions as follows:

The principles that can be enunciated from those decisions are twofold. The first is that the Environment Court lacks jurisdiction to determine the lawfulness of a proposed activity by reference to the general law or a special statutory provision which must be determined in the ordinary Courts of Law. Secondly, this Court’s jurisdiction does not extend to making declarations (or enforcement orders) relating to defects of an administrative nature such as claims to inadequate consultation, bias, legitimate expectation, breach of fiduciary duty and other such matters. To do so would pre-empt the High Court’s jurisdiction under the Judicature Act.

• [53] It should be noted, with respect, that the reference to the High Court’s jurisdiction under the Judicature Act must be read as a reference to the High Court’s inherent jurisdiction to review administrative action, the procedure for which was (at the time of this decision) codified by the Judicature Amendment Act 1972 and is now set out in the Judicial Review Procedure Act 2016.

• [54] Reviewing the grounds of the petition, the Court in Berryman could find none that amounted to a breach of the RMA and struck the petition out for want of jurisdiction.

¹² See Kirkland v Dunedin City Council [2001] NZCA 288 at [20]; and the authorities cited in The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2020] NZEnvC 180 at [58]–[62]. The Employment Court has a bespoke judicial review jurisdiction conferred by statute.

¹³ Royal Forest and Bird Protection Society v New Plymouth District Council [2015] NZEnvC 219, [2019] ELRNZ 122.

¹⁴ Berryman v Waitakere City Council NZEnvC A046/98; and Liu v Auckland City Council [2019] NZEnvC 33.

• [55] In Liu, the Environment Court pointed out that the power to judicially review administrative action lies within the original jurisdiction of the High Court, whereas, the Environment Court was created on more limited statutory terms. It went on to state in relation to s 310:

[67] The Environment Court does have a power to make declarations under s 310 RMA, which extends to declaring any issue or matter relating to the interpretation, administration, and enforcement of this Act, except for an issue as to whether any of sections 95 to 95G (relating to notification of applications) have been, or will be contravened. This statutory power to make declarations, and the absence of any corresponding power to make orders of or in the nature of mandamus, prohibition or certiorari, confirms the lack of jurisdiction of the Environment Court to exercise judicial review.

• [56] I acknowledge that Berryman and Liu are not binding on me, nor do they go much further than simply stating what the Court saw as the law. But Berryman in particular is longstanding and undisturbed authority.

• [57] Mr Maassen relies on, or invites me to “consider”, two High Court decisions and two other Environment Court decisions.¹⁵ In my view, agreeing with submissions for the Council, none of these supports his argument either specifically or as a broader proposition. The two High Court cases state the general principle that where a specialist tribunal has jurisdiction to determine disputes relating to rights and privileges, a declaratory order should not displace the special procedure laid down by statute. This does not support the appellant because (a) the case it sought to bring was not a dispute about substantive rights, but rather about procedural matters, and (b) the argument is circular; the issue in this case is whether the specialist tribunal in question has jurisdiction in the first place.

• [58] Additionally the Environment Court cases cited by Mr Maassen do not assist MRMT’s case as it is accepted that cl 8D can be subject to a declaration as to the scope of its power. This is in contrast with a declaration regarding the process undertaken by a council when withdrawing a plan change, which is a matter for judicial review. Further in Wellington Fish and Game Council v Manawatu-Wanganui Regional Council, the Environment Court was clear that its jurisdiction to make declarations excludes “administrative law, such as a claim of inadequate consultation, bias, breaches of fiduciary duty, and the like”.¹⁶

¹⁵ Redhill Properties Ltd v Papakura District Council, HC Auckland M 2242/98, 8 February 2000; Graham v Auckland Council [2013] NZHC 833; Minister of Conservation v Whakatane District Council Decision No. W79/2003; and Wellington Fish and Game Council v Manawatu-Wanganui Regional Council [2017] NZEnvC 37.

¹⁶ Wellington Fish and Game Council v Manawatu-Wanganui Regional Council [2017] NZEnvC 37 at [5].

• [59] Mr Maassen also refers to an academic article.¹⁷ It is a high-level theoretical analysis of environmental adjudication and I do not find it of assistance to the issues before me.

• [60] I turn to specifically consider s 310(a), (c) and (h).

• [61] MRMT relies on these subsections for jurisdiction, but does not elaborate on how any of those subsections applies to give the Environment Court a judicial review jurisdiction. Mr Maassen suggests because subs (h) only excludes notification decisions it must allow for declarations to be made on everything else. He does not argue the Environment Court has any inherent jurisdiction in this regard.

• [62] Mr Maassen cites Royal Forest and Bird Protection Society v New Plymouth District Council which discusses these subsections as follows:¹⁸

• [101] Dealing with the last matter (s 310(h)) first, we observe that this provision gives the Court a wide power to make declarations on issues or matters other than those specifically identified in s 310(a)-(g).

• [102] Section 310(a) enables the Court to make a declaration as to the existence of any duty under the Act. We have previously identified that the Council has a duty to adequately recognise and provide for the protection of [Significant Natural Areas (SNAs)] in its District. No party to these proceedings suggested that was not the case.

...

• [104] Section 310(c) authorises the Court to declare whether or not an act or omission or a proposed act or omission contravenes or is likely to contravene RMA. Read at the broadest level, it arguably authorises us to declare whether the Council’s omission to include the identified SNAs in Appendix 21.2 is a breach of its duty under s 6(c).

• [105] Viewed in the round, we have no hesitation in finding that the issue of the appropriate degree of protection required for areas of significant indigenous vegetation and significant habitats of indigenous fauna is an issue relating to the interpretation, administration and enforcement of RMA which the Court is empowered to consider pursuant to s 310(h).

• [63] The difficulty with MRMT’s argument is that the case was in a different context. It related to an omission to include particular Significant Natural Areas in a district plan appendix. It did not relate to the withdrawal of a plan change. Additionally, Forest and Bird’s declarations as sought did not require the Environment Court to judicially review the Council’s actions. The Court held that the act done by the Council (there an omission) was in breach of a provision of

¹⁷ Ceri Warnock “Reconceptualising Specialist Environment Courts and Tribunals” (2017) 37(3) Legal Studies

391.

18. Royal Forest and Bird Protection Society v New Plymouth District Council [2015] NZEnvC 219, [2019] ELRNZ 122.

the RMA, namely s 6(c). This did not require it to examine the way the act was done or the reasons why it was done, which is what MRMT sought before the Environment Court. Mr Maassen does not endeavour to explain why the propositions above support his argument that a judicial review power is available to the Environment Court and I disagree with his submission that the declarations in Royal Forest and Bird were in the nature of judicial review.

• [64] In regard to subs (a), I agree with Judge Kirkpatrick that the subsection only goes so far as to empower the Environment Court to make declarations about the express requirements of cl 8D, for example as to timing, notice and the giving of reasons (as opposed to the adequacy of reasons). The declaration MRMT sought was outside the scope of this subsection because it went to the merits of withdrawing provisions specific to PC9 before a hearing by the Court, rather than a general declaration as to the existence or extent of the power to withdraw.

• [65] I note with regard to subs (c) MRMT’s argument is not that cl 8D was contravened. It was complied with. The argument is rather that the Council acted unlawfully for reasons other than those stated in cl 8D.

• [66] Further, I consider the words “act or omission” in subs (c) are intended to be construed narrowly. The relevant “act” here was the act of withdrawing the plan change. It would be very odd for an act that is expressly permitted and provided for in the RMA to be in contravention of s 8. The Environment Court had jurisdiction to declare that the act of withdrawal under cl 8D is not in contravention of s 8 but that would have been redundant. What MRMT was really seeking was a declaration that the decision-making behind the act was in contravention of s 8. That is a different matter which is in the realm of judicial review of decision-making. In other cases where the act committed is not expressly provided for in the RMA perhaps the jurisdiction to declare contravention with s 8 remains open, insofar as it does not have the character of judicial review, but I make no further comment on that hypothetical situation.

• [67] I also agree with Judge Kirkpatrick that the “catch-all” subs (h) could not sensibly be construed to establish a judicial review jurisdiction in the Environment Court. It is designed to fill any gaps arising from the more specific provisions that precede it. Further, if the intention of s 310(h) or any of the other subsections was to import a power of judicial review, I have no doubt that Parliament would have made that clear.
• [68] None of those subsections, nor s 310 read as a whole, on their face provide or even indicate that the Environment Court has a power of judicial review (for example as to legality) in respect of any Council decision relating to RMA matters.

• [69] Finally, I consider my conclusion on the appeal is consistent with the fact that where there is no right of appeal to the Environment Court, such as regarding the Council’s decision under cl 8D, there is a right of judicial review to the High Court. This is the corollary of s 296 of the RMA. It would be very strange if hidden in s 310 was a right of judicial review before the Environment Court when this scheme is otherwise clear.

• [70] As Judge Kirkpatrick said, ultimately tikanga and the principles of Te Tiriti could not go so far as to confer jurisdiction on the Environment Court if a statute does not, particularly in the circumstances where there is jurisdiction elsewhere.

• [71] For all of the above reasons, the appeal is dismissed.

Judicial review of the Council’s withdrawal of PC9

Grounds of review and declarations sought

• [72] MRMT’s amended application for judicial review in this Court seeks declarations that the Council, in making the decision on 18 February to withdraw PC9:

(a) was required to comply with RMA s 8; and did not comply with RMA s 8 and therefore acted unlawfully;

(b) erred by reasoning that a statutory regard under s 104 was sufficient to fill the vacuum for meeting tangata whenua interests under Part 2, RMA and to give effect to NPS-FM 2017;

(c) erred by considering possible future legal instruments announced by the Minister of the Environment and their impact as relevant to the assessment of the impact on the performance of its functions under Part 5 of the RMA;

(d) failed to consider the consequences of withdrawal on its obligations under RMA s 65(6) and the impact on its implementation plan under RMA s 65(7);

(e) unlawfully placed itself in breach of RMA, s79(2) concerning review of the allocation provisions of the regional plan and failed to consider that unlawfulness;

(f) failed to give adequate reasons for its decision;

(g) failed to consider how the withdrawal affected the achievement of the RMA, Part 2 and the performance of its functions under RMA, Part 5 and therefore acted unlawfully;

(h) acted irrationally and generally and specifically in relation to the management of freshwater on Motiti Island.

• [73] I endeavour to consider each of these grounds but note that while the Council addresses each, MRMT does not address a number of them. As is quite common, although a number of grounds are pleaded, overall, there is a central issue – in this case being whether the Council’s withdrawal of PC9 was unlawful because it was in breach of s 8 of the RMA.

• [74] By way of relief MRMT initially sought that the decision be remitted back to the Council with appropriate directions on the consideration of matters relevant to Part 2, the interests and values of tangata whenua and the statutory obligation to perform the functions of the regional council under Part 5 of the RMA. However in MRMT’s reply submissions it appears to seek relief by way of establishing an interim position where the Council would restrict allocations of freshwater to a 5-year term and notify tangata whenua of all applications for renewal, as interim measures. Mr Maassen says it is not futile for the Council to consider these matters. He says it is reasonable and appropriate for these interim measures to be put in place to protect freshwater rights if tangata whenua are prevented from protecting those interests in the Environment Court through the Schedule 1 process.

• [75] The essence of the Council’s defence is that the decision to withdraw the plan change was lawful, having been made within the scope of the express power conferred on it by cl 8D of the Act, which provides only that the Council must give public notice of any withdrawal including the reasons for the withdrawal. The Council contends that the Treaty of Waitangi and other considerations raised by MRMT as relevant, fall outside the scope of the power conferred on the Council.

Ground 1 – Failure to consider and comply with section 8

• [76] MRMT alleges a failure to comply with s 8 of the RMA when making the withdrawal decision. Section 8 requires persons exercising functions and powers under the RMA in relation to managing the use, development and protection of natural and physical resources to “take into account” the principles of the Treaty of Waitangi.

• [77] The requirements of s 8 have been extensively considered in the Environment Court:

(a) The obligation to “take into account” is not intended to be higher than an obligation to consider the particular factor in making a decision, to weigh it out with the other relevant factors, and to give it whatever weight is appropriate in all the circumstances.¹⁹

(b) The Treaty principles imported by s 8 cannot be used as a de facto mechanism for allocating resources to Māori.²⁰

(c) Section 8 does not apply to determine constitutional matters such as claims to tribal sovereignty.²¹

(d) The Crown rather than local authorities is the Treaty partner. Although s 8 requires local authorities to take into account the principles of the Treaty, it does not impose on them the obligations of the Crown under the Treaty.²²

(e) Section 8 recognises the relationship of tangata whenua with natural and physical resources and encourages active participation of, and consultation with, tangata whenua in resource management decision-making.²³

• [78] The type of provision or act will inform what principles of the Treaty are relevant and the extent of consideration required. It is relevant that in this case the withdrawal of a plan change

¹⁹ Bleakley v Environmental Risk Management Authority [2001] 3 NZLR 213 (HC).

²⁰ Sea-Tow Ltd v Auckland Regional Council [1993] NZPT 334; [1994] NZRMA 204 (PT).

²¹ Te Ohu O Nga Taonga Ngati Manu v Stratford District Council NZEnvC W074/99; Hauraki Maori Trust Board v Waikato Regional Council NZEnvC A078/03; Minhinnick v Minister of Corrections NZEnvC A043/04; and Tainui Hapu v Waikato Regional Council NZEnvC A063/04.

²² Hanton v Auckland City Council [1994] NZRMA 289 (PT) at 20; Banks v Waikato Regional Council PT A031/95; and Outstanding Landscape Protection Soc Inc v Hastings District Council [2007] NZEnvC 87; [2008] NZRMA 8 (NZEnvC).

²³ Winstone Aggregates Ltd v Franklin District Council NZEnvC A080/02.

is a relatively simple process which, unlike a plan change itself or other matters such as determinations of applications for resource consent or decisions on submissions on a plan change, on the face of cl 8D does not require or even allow for public input. Additionally there are no prescribed decision-making factors.

• [79] I understand the focus of Mr Maassen’s argument to be that there is a requirement under s 8 for the Council to properly consult with tangata whenua before making the decision to withdraw, and a requirement to be fully informed of duties to protect the interests of tangata whenua and of the Treaty landscape.

• [80] The Council says that the answer to this argument lies in previous decisions of this Court being West Coast Regional Council v Royal Forest and Bird Protection Society Inc and Coastal Ratepayers United Inc v Kapiti Coast District Council.²⁴ West Coast was a decision about the lawfulness of a partial withdrawal of a plan change. There, the Court found that cl 8D and the exercise of the right provided under it was a mechanical decision, not a substantive one, and that no consultation was required prior to such a decision. All that is required is public notice and the giving of reasons.²⁵ The reasons are nonetheless reviewable.

• [81] Mr Maassen contends that the Full Court decision in West Coast is distinguishable because it relates only to a partial withdrawal. However, I consider the principles are equally applicable to a full withdrawal of a plan. Secondly, I agree with the conclusions reached by the Full Court in that case that consultation is not required. These conclusions were reinforced, to some degree at least, by Collins J in Coastal Ratepayers United Inc.

• [82] The withdrawal of a plan change does not deprive the parties of a right to participate in the substantive content of the plan, and to be consulted in that context. It is undisputed that the Council will be notifying a replacement plan(s) for fresh water. Indeed, as the Council submits it must do so because the NPS-FM 2020 and the RMA require it to. Further, the Council must, in terms of NPS-FM 2020 cl 3.4(1)(b), actively involve tangata whenua to the extent they wish to be involved in freshwater management, including in making or changing regional policy statements and plans so far as they relate to freshwater management.

²⁴ West Coast Regional Council v Royal Forest and Bird Protection Society Inc [2007] NZRMA 32 (HC); and

Coastal Ratepayers United Inc v Kapiti Coast District Council [2017] NZHC 2933.

²⁵ West Coast Regional Council v Royal Forest and Bird Protection Society Inc [2007] NZRMA 32 (HC) at [59]–

[67] and [76].

• [83] I note however I have some reservations about reading too much into the description of cl 8D as “mechanical”. While withdrawal is not strictly substantively significant, because it merely returns parties to the status quo, it is procedurally significant because of the delay it arguably causes. That will have real effects on interested parties. As the Supreme Court noted, s 8 will also have procedural implications.²⁶

• [84] While I have some concern for all parties over this delay and the costs involved in a withdrawal of a plan change such as here after years of engagement, that very point was considered in both cases noted above. In West Coast, the Court expressly said:²⁷

Again, this proposition can be tested by first exploring what Parliament intended if the whole of the plan is withdrawn. There would be many angry submitters. In one sense they would all be deprived of public participation in the plan that had been proposed. However, that dissatisfaction is likely to be temporary because in the case of a Regional Council ss 30 to 32 of the Act will continue to apply (and in the case of a territorial authority ss 31 and 32). Where a Council has withdrawn a proposed regional plan or district plan it will almost certainly have to consider a replacement which will give rise to public participation following notification of the new provision.

...

Parliament has made it quite clear by cl 8D that territorial and regional authorities can have second thoughts about a proposed policy statement or plan quite late in the day. It can be completely withdrawn years after the original promulgation of the plan, and after years of interim effect, down to the date when they decide whether to finally approve the plan or not. Inasmuch as a use is “permitted” the interim effect may have been advantageous to occupiers of land. Counsel for the Minister of Conservation agreed that the withdrawal can occur whether the public participating in the content of the plan like it or not. However, as we have already noted, such withdrawals are likely to only temporarily impede public participation because new proposals are likely to be substituted and notified.

• [85] While the Court there refers to withdrawal being likely to only temporarily impede participation, the evidence here is clear that participation will definitely only be temporarily impeded, because new proposals must be substituted and notified. If a new proposal is not notified, Council will be in breach which will be actionable in itself.

• [86] Further, in Coastal Ratepayers there was an expected delay of four years between withdrawal of a part of a plan change and notification of the new proposed changes.²⁸ There had also been lengthy delays as of the appeal date, as the plan review had commenced as early as 2008. The High Court concluded that there was no error in the Environment Court’s finding that

²⁶ Environmental Defence Society Inc v King Salmon Ltd [2014] NZSC 38 at [27] and [88].

27. West Coast Regional Council v Royal Forest and Bird Protection Society Inc [2007] NZRMA 32 at [33] and [70].

²⁸ Coastal Ratepayers United Inc v Kapiti Coast District Council [2017] NZHC 2933.

the delay was not unreasonable, noting the Council would need to carefully consider and develop appropriate provisions for coastal hazard management having regard to a variety of considerations, including matters that impact upon the sustainable management of natural and physical resources, matters of national importance and the factors listed in s 7 of the Act, which include the effects of climate change.

• [87] Here the Council say they will need to notify the new plan change by 2024 at the latest. There is considerable work for both Council and tangata whenua to do to implement the NPS- FM 2020 and the Te Mana o te Wai framework. I echo the Court’s sentiment in Coastal Ratepayers that it is important for the Council to do a thorough job and get it right rather than risk problems occurring due to a hasty process. I agree with the Council that the delay in this case is not unreasonable and, as noted, the process is already underway.

• [88] The procedural implications of withdrawing a plan change under cl 8D do not give rise to an obligation for the Council to consult with tangata whenua before making the decision.

• [89] However, contrary to the primary argument of Ms Hill, I do consider that the Council must at least turn its mind to the principles of the Treaty when making a withdrawal decision. That obligation can be put no more highly than an obligation “to take into account the principles of the Treaty of Waitangi”, that being the language used in s 8 of the RMA.

• [90] On the evidence of Mr Low and Mr Gardiner, including the 13 February report, the Council did take into account the principles of the Treaty. It was alive to the relationship of tangata whenua with wai and was aware of the need to actively involve tangata whenua in the development of Māori freshwater values and other processes relevant to freshwater management.

• [91] First, the Council had been through extensive involvement with tangata whenua groups in the development of PC9 and subsequently in mediation efforts with tangata whenua appellants. The Council was obviously well aware of the relevant issues. There was no need to separately inform itself as part of the withdrawal decision-making as MRMT pleads.

• [92] Second, and importantly, the Council considered a detailed report in relation to the withdrawal of PC9, and held a meeting to discuss this report. The 13 February 2020 report set out three recommendations, being that the Strategy and Policy Committee:

1. Receives the report, Consideration of Option to Withdraw Proposed Plan Change 9 (Region-wide Water Quantity Plan Change);
2. Agrees to withdraw PPC9 in full;

3. Endorses staff working closely and, where practicable, in partnership with tangata whenua in freshwater management and policy development.

• [93] Although MRMT describes the consideration of tangata whenua issues as “breathtakingly light”, this does not reflect the content of the report. For example, under the section “Summary of Key Issues for PPC9 Appeals”, the first issue is “Tangata whenua matters” which included the following comments:

• The incorporation of Te Mana o te Wai (TMOTW) in PC9. Sought greater recognition of Te Tiriti.

• Provision of cultural flows.

• Associated amendments (including consent timeframes and activity status).

These matters remain a core area of tension. TMOTW is a core concept under NPSFM (2017) and has been signalled for further consideration under the proposed NPSFM 2020. Unfortunately, recent feedback suggests this topic cannot be settled out of court.

• [94] The report then considered how the withdrawal will affect Council relationships with tangata whenua. The section is set out in full below.

5 Working With Tangata Whenua

In its recommendation to consider withdrawal the Appeals Subcommittee recognised the considerable importance of freshwater and any PPC9 decision to tangata whenua. One of the key concerns raised by the subcommittee was that this decision might erode goodwill or be perceived as a backward step.

Staff wish to take advantage of the momentum from PPC9 and intend to coordinate a meeting with the tangata whenua (Group 1) appellants (individually or as a collective) to progress discussions that commenced via PPC9. Options being considered include the development of an engagement hub and/or reference groups resourced to support Council to implement the NPSFM. Staff have committed to progress work in the tangata whenua space with urgency to ensure momentum gained through PPC9 is not lost, and any freeing of resources that might result from the committee decision are made the most of.

It is important to acknowledge that the BOP cultural landscape is diverse and characterised by groups at different levels of capacity. Staff intend commencing early discussions with tangata whenua (where relationships need establishing and/or strengthening) to coordinate a more responsive approach to engagement with these iwi – perhaps modelled on agreed ways of working with those further ahead in their thinking. These discussions will emphasise a transition to a working relationship centred on the immediate need to better understand the fresh water resource (and thus key management needs) and build mutual capacity. The hope would be to rapidly progress discussions from “how” we work with tangata whenua to more applied conversation about practical work required to help tangata whenua as kaitiaki and Council to better manage fresh water. For example, there have been discussion of preparing inventories of cultural values and working on cultural flow assessments – with ‘ownership’ of data/information to be determined when the question arises.

It should also be noted that Council’s positioning and timing to enable iwi participation in the Eastern Bay of Plenty is heavily influenced by the Treaty settlement process. Some of these processes are unique in terms of the role iwi leadership might have in fresh water management. Staff are currently working alongside iwi and key Crown agency partners to identify opportunities for council to support the position of fresh water outcomes within the Treaty settlement process and to understand and anticipate the role of council post settlement.

• [95] In considering whether to withdraw parts of PC9 instead of the whole, the report stated:

Tangata whenua concerns remain key. These cut across almost all PPC9 provisions. Removing all but the least controversial of these provisions would be an affront to tangata whenua (for whom the presence of these provisions is some comfort) and would risk inconsistencies creeping into the plan change.

• [96] At 6.2 of the report the writers considered “Implications for Māori” which included consideration of “Statutory Obligations to Tangata Whenua” and “Key Considerations for Māori”. This section included consideration of Iwi having limited financial and human resources, concerns about mauri being degraded while not integrated into default operative limits, erosion of trust and increased apathy, and the opportunity for improved engagement through the implementation of the NPS-FM 2020. Mr Gardiner deposes that he answered councillor’s questions on these topics at the meeting.

• [97] Mr Low explains in his affidavit that given the limited utility of PC9 at that point, it was considered more important to invest resources into future partnership processes with tangata whenua rather than expend them on pursuing PC9 through the courts. Mr Gardiner agreed that pursuing PC9 in the courts would undermine the ability of Council to work cooperatively and in partnership with tangata whenua groups in the future freshwater reforms because they would be forced into adversarial litigation.

• [98] MRMT’s specific concerns about over-allocation are addressed in the appendix to the report.

• [99] MRMT argues that the report did not inform councillors about the customary interests iwi were seeking to protect or the significance of those interests in a constitutional sense. However, the latter goes beyond what is required by s 8 of the RMA. The report clearly considers Māori interests insofar as they are recognised by the scheme of the RMA, such as kaitiakitanga, provision for cultural flows, the protection of mauri, and so on. To the extent MRMT wanted the Council to consider interests in the nature of customary property rights that too goes beyond what is required by s 8 and the scheme of the RMA, at least in relation to withdrawing PC9.
• [100] Third, Council staff were transparent that the Council was considering a withdrawal of PC9. The potential withdrawal was foreshadowed as early as possible, including by advising parties of the recommendation that staff consider the option of withdrawal, and then each appellant was personally advised of the decision once it had been made.

• [101] This is but a sample of the considerations taken into account by the Council when deciding whether to withdraw PC9. There can be no question that Treaty principles were taken into account. I consider partnership and good faith were particularly focused upon. Additionally, the Council had regard to the issue of over allocation, if that does go to Treaty principles as MRMT says it does.

• [102] The concerns raised by MRMT in its submissions relating to customary freshwater interests are significant and important. However, the place for their consideration, in greater and more substantive depth, is in the development of the new plan.

• [103] The declaration sought, in terms of ground 1, is therefore declined.

Ground 2 – erroneous reasoning – withdrawing PC9 created a planning vacuum

• [104] Like Ms Hill I have some difficulty understanding this ground. MRMT argues that the Council erroneously thought withdrawing PC9 would not create a planning vacuum because consents would continue to be processed under the operative plan. In other words, MRMT says there is a planning vacuum in the operative plan specifically due to PC9’s withdrawal.

• [105] I do not consider there is evidence to support the alleged planning vacuum. MRMT’s planner, Ms Marr, was not involved in the development of PC9 and her evidence discusses only at a generic level the desirability of having clear allocation limits in plans. She suggests that Council should be granting short-term consents in the interim pending the future plan changes (implementing the NPS-FM 2020) and says that over-allocation will inevitably result in tangata whenua values and interests not being appropriately provided for. However, as noted, these are generalised statements which are not supported by evidence before me. There is in fact material evidence from the Council to the contrary, but the point is rather that there is no evidence to support the contention raised by MRMT.

• [106] Purely by way of observation, it is some time now since PC9 was withdrawn and Mr Fraser, who is the Council’s Consents Manager, says that based on actual practice the

withdrawal of PC9 has had very little, if any, impact on how consent applications relating to water are considered by Council. That evidence does not seem to be contradicted.

• [107] MRMT contends that the withdrawal of PC9 has taken away necessary “well-constructed tikanga practices” for managing freshwater. Such practices may be what MRMT hoped to see from the PC9 appeals but it was by no means certain nor the primary purpose of PC9 to implement such practices. Additionally that is what the NPS-FM 2020 addresses and the Council, in focussing on its implementation, will get closer to MRMT’s desires than pursuing PC9 appeals.

• [108] For the above reasons, ground 2 is rejected.

Ground 3 – taking account of an irrelevant consideration being a future legal instrument, NPS-

FM 2020

• [109] MRMT’s argument in this regard is that the Council made an error by considering a possible future legal instrument (the NPS-FM 2020) as relevant to assessment of the impact of withdrawal on the performance of its functions under Part 5 of the RMA.

• [110] Mr Maassen does not address this point in writing or orally, such that it can fairly be treated as abandoned. It is difficult to deal with an argument that is not advanced.

• [111] Ms Hill points out that while MRMT cites no authority, there is some authority to suggest that a decision-maker should not take into account the fact that an enactment yet to come into force will affect various entitlements. I agree with her that these cases are not applicable here as they were situations where the power being exercised directly affected a party’s substantive rights, such as in the case of fishing quota.²⁹

• [112] In this case Council was reasonably entitled to rely on NPS-FM 2020 coming into force in the short term. It was undoubtedly relevant to the decision to be made under cl 8D.

• [113] I find against ground 3.

29. Westhaven Shellfish Ltd v Chief Executive of the Ministry of Fisheries HC Wellington, CP 102/00, 21 July 2003; and see King v ACC [1994] NZAR 159 (HC) at 28.

Ground 4 – failure to consider relevant matter being impact of withdrawal on NPS-FM 2014 implementation programme

• [114] MRMT says that the Council acted unlawfully by failing to consider the impact of the withdrawal of PC9 on its NPS-FM 2014 implementation programme. Mr Maassen points to the Supreme Court decision in Environmental Defence Society v King Salmon.³⁰ There the Court said that s 67(3) of the RMA, which requires regional plans to “give effect to” any national policy statement, is a “strong directive” and Councils must “implement” the policy.³¹ Mr Maassen says the NPS-FM 2014 had directive provisions that require recognition of tangata whenua values and interests to meet art 2 Treaty obligations and respond to Waitangi Tribunal decisions on freshwater.

• [115] However, that is as far as MRMT’s written and oral submissions go to address this issue. Mr Maassen said nonetheless the ground was not abandoned.

• [116] The NPS-FM 2014 had a long implementation timeframe extending to December 2025 with potential to go to 31 December 2030. PC9 was only one aspect of that programme. It was clearly unnecessary for the Council to consider the impact of withdrawal of PC9 on the 2014 implementation programme. The Council was aware, and it is not disputed, that the NPS-FM 2020, with its new implementation timeframes, was going to succeed the 2014 programme. The obligation to implement the NPS-FM 2014 would also be overtaken by the obligation to implement the NPS-FM 2020. This would happen well before PC9 could conceivably be implemented, to the extent, if at all, it survived the appeals process.

• [117] This ground is rejected.

Ground 5 – unlawfulness and failure to consider relevant consideration being breach of RMA s 79(2) concerning review of allocation provisions

• [118] MRMT argues that in withdrawing PC9 the Council breached its statutory obligations to review its operative regional plan under s 79 thereby “denying tangata whenua and others from having access to the Schedule 1 process”.

• [119] Section 79 provides that a local authority must commence a review of a provision of a regional plan if the provision has not been a subject of a proposed plan, a review or a change in

³⁰ Environmental Defence Society Inc v King Salmon Ltd [2014] NZSC 38.

³¹ At [75]–[91].

the last 10 years. If the local authority considers the provision requires alteration it must propose the alternation in the manner set out in Part 5 of the RMA and Parts 1, 4 or 5 of Schedule 1. Schedule 1 of the RMA sets out the process for developing plans and, as noted earlier, it includes cl 8D.

• [120] As I have already found, MRMT is not denied access to the Schedule 1 process. The Schedule 1 process regarding PC9 had effectively run its course given the degree of opposition involved. There is now a new Schedule 1 process underway in relation to the new plan changes which will require engagement with tangata whenua on Māori freshwater values. There is no evidence before me which demonstrates that the Council has not followed the proper process. Indeed as s 79(2) requires the Council did propose PC9. Section 79 does not require that the Council implement that proposed plan change.

• [121] To the extent MRMT pleads delay under this ground, I have addressed delay above.

• [122] Accordingly this ground fails.

Ground 6 – failure to give adequate reasons for withdrawal

• [123] The actual submission that Mr Maassen makes under this heading was the same as the submission relating to ground 7 and it is considered there.

• [124] MRMT’s submissions do not expand on ground 6 as pleaded and I cannot see that the point is valid. The requirement to provide reasons is one of procedural fairness. As the Council submits, it provides an explanation as to the basis for a decision and enables parties, such as MRMT, to assess whether the decision should be challenged. If, for example, there is no adequate reason or no reasons, the decision is reviewable as being unreasonable.

• [125] The merits of the reasons are not relevant unless they go to the point of irrationality which is addressed subsequently under ground 8.

• [126] In this case the reasons were publicly notified.

• [127] The public notice set out the five reasons why PC9 was withdrawn as set out earlier. It also set out the context for PC9, recording that PC9 “was the first step in a two-stage approach

to improving rules for water quality and quantity management in the Bay of Plenty”. It was designed as an interim measure that would hold the line “on water quantity management”.

• [128] On the face of it the reasons are clear and provide an explanation as to why the Council decided to withdraw.

• [129] This ground is therefore rejected.

Ground 7 – failure to consider how the withdrawal affected the achievement of Parts 2 and 5 of the RMA

• [130] MRMT claims that Council could only exercise its powers to advance the purpose of the Act based on the present law. However, there is no evidence that Council had any other purpose in withdrawing PC9 than to advance the purpose of the RMA. A key reason for the withdrawal, as noted above, was to enable Council to focus on the comprehensive freshwater plan changes required under the NPS-FM 2020. That in turn is promulgated under the RMA. Given the development of the Te Mana o te Wai framework in the NPS-FM 2020, focussing on implementing the new policy would better achieve the sustainable management purpose of the RMA along with obligations to Māori under ss 6, 7 and 8.

• [131] I find against ground 7.

Ground 8 – irrationality

• [132] MRMT claims that the decision to withdraw PC9 was irrational, specifically in relation to the management of freshwater on Motiti Island.

• [133] MRMT submits that the threshold of reasonableness is narrower than the usual Wednesbury formula because the decision to withdraw PC9 concerns the performance of duties relating to Article 2 of the Treaty and customary rights to tangata whenua resources.

• [134] It is well established that the threshold for judicial review involving local authorities on the grounds of unreasonableness is high. The decision would need to be not supported by any cogent evidence, or be self-contradictory or based upon an evident logical fallacy. The test is not merits-based, for obvious reasons.
• [135] MRMT provides no authority for the proposition that the threshold for irrationality should be lower in a tikanga based case. I accept it might be different as tikanga principles would be applicable, but not lower. For example, it might be irrational for a decision-maker to act in blatant breach of a clearly applicable and relevant tikanga principle with no conceivable reason for having done so. The reasonable decision-maker, especially in an environmental context, is obviously aware of New Zealand’s legal tradition which integrates tikanga.³²

• [136] Here, Mr Maassen submits that the Council failed to secure tangata whenua interests and bottom lines even in small Freshwater Management Units 30 years after the enactment of the RMA. In that context he says the hopes expressed in the 13 February report regarding future and better relationships with tangata whenua are no more than wishful thinking. Delay will not remove differences of opinions.

• [137] However, whatever the threshold for unreasonableness, it is not met here. I have not been provided with material that would show the decision to withdraw is irrational or even close to it. Resolving the Environment Court appeals against PC9 (including an appeal by MRMT) was likely to have taken many months and probably years. Furthermore, any decision made by the Environment Court would then be pointless because it would concern a plan change which had had a limited life and had to be replaced by the more comprehensive freshwater plan change required under NPS-FM 2020. Running the appeals would also have been a very expensive and resource-intensive exercise. While I am satisfied as to all of that on the evidence, none of it needs to be demonstrated. Rather, MRMT needs to demonstrate that there was no probative reason for withdrawal. It has failed to do that.

• [138] This ground is also dismissed.

Relief

• [139] None of the grounds for judicial review have succeeded so I do not need to consider relief, but I note that the precise relief that was sought was, as the Council submitted, unclear. I have already recorded above my understanding of what it was that MRMT seeks to achieve if the decision to withdraw PC9 were revisited.

32. See Joe Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato Law Review 1.

• [140] MRMT seems to consider that it could negotiate some form of common position between itself and the Council for interim management of freshwater pending the new changes. Inter alia, that was not in any event what PC9 was about.

• [141] If the Court did direct the Council to reconsider the withdrawal decision then the Council would still need to decide (subject to whatever direction was relevant) that keeping PC9 on foot would better achieve the purpose of the RMA than the interim situation under the operative plan as explained by Mr Fraser. If the Council decided that resurrecting PC9 was the most appropriate course then the 14 appeals, involving 23 parties, against PC9 would also become live and require resolution by the Environment Court. In the appeals process the Council would be required to defend its decision on PC9 and would not be in a position to promote the position of some of the parties, such as MRMT, over others, except to the extent that was consistent with its decision.

• [142] Plainly, much of the relief sought by MRMT, particularly in relation to provision for customary interests, goes beyond the limited scope of PC9 and of Council’s decision on PC9. I agree with the Council; it is more in the nature of wishful thinking than relief that would be appropriate were one of the grounds to succeed.

• [143] As Ms Hill submits, even if the Council were to agree to present a joint proposal to the Environment Court along the lines MRMT suggests by way of relief, the Environment Court would not be in a position to accept it. The Court would need to conduct a hearing of the appeals. That is not a process over which the Council is in control.

• [144] It is relevant that MRMT is not the only tangata whenua party who appealed against PC9. The many other appellants and interested parties will have their own interests which may well not align with those of MRMT. Further, one iwi actually sought withdrawal of PC9 as the relief in its appeal.

• [145] I agree with the Council that the relief sought by MRMT would not be capable of order by this Court. Repeating the decision-making process in this case would be unlikely to result in a different outcome to the present and would have little, if any, chance of resulting in the outcome sought by MRMT.

• [146] Therefore, even had I found that one of the grounds of review had been made out, relief would have had to be declined.
• [147] As a final note, it appears that MRMT does not have the best relationship with the Council and feels Motiti tangata whenua have not had the opportunity to express rangatiratanga or kaitiakitanga over freshwater on Motiti Island. These are issues these proceedings cannot solve but they will be important for the Council to address so that the most can be made of the new Schedule 1 process now underway.

Conclusion

• [148] The appeal is dismissed.

• [149] The application for judicial review is dismissed.

• [150] The Council is entitled to costs on both the appeal and judicial review application. If costs cannot be agreed, the Council should file submissions within 15 working days and MRMT 10 working days thereafter.

Hinton J