BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA Decision No. [2018] NZEnvC '2. ~ it- IN THE MATTER of the Heritage New Zealand Pouhere Taonga Act 2014 AND of an appeal pursuant to s 58 of the Act BETWEEN BETTY KING, PANIA NEWTON, NGA KAITIAKI 0 IHUMATAO CHARITABLE TRUST and SOUL IHUMATAO (ENV-2017 -AKL-000160) Appellants AND HERITAGE NEW ZEALAND POUHERE TAONGA Respondent AND FLETCHER RESIDENTIAL LIMITED Applicant AND TE KAWERAU IWI TRIBAL AUTHORITY INCORPORATED and MAKAURAU MARAE MAoRI TRUST s 274 parties Court: Environment Judge D A Kirkpatrick Environment Commissioner S K Prime Deputy Environment Commissioner G Paine Hearing: at Auckland on 23 and 24 July 2018 Appearances : C Hockly for appellants R M Devine, G Baumann and C M Woodward for respondent S J Simons and K A Storer for applicant R B Enright for s 274 RMA parties Date of Decision: 7 November 2018 Date of Issue: -- 7 NOV 2018 DECISION OF THE ENVIRONMENT COURT 2 A: The decision of Heritage New Zealand Pouhere Taonga granting Authority No. 2018/064, subject to conditions, is confirmed. B: Attention is drawn to apparent typographic and other minor errors in the Management Plan and the Research Strategy which should be corrected by Heritage New Zealand Pouhere Taonga. C: Costs are reserved. Directions are given for any application . REASONS Introduction [1] This appeal is about whether the modification or destruction of archaeological sites should be authorised in order to enable certain land to be developed for residential purposes. [2] The subject property consists of two blocks of land comprising 33.42 hectares at 545-561 Oruarangi Road, Mangere. 1 The land is of easy contour, rising slightly from the main road frontage in the southeast towards the Otuataua stonefields in the northwest. It is presently mainly in pasture, with two houses and some farm buildings. One of the houses, called Kintyre, is the second homestead of the grantee of the land from the Crown, Mr Gavin Wallace. The property is bisected by Ihumatao Quarry Road running from Oruarangi Road to (now) the entrance to the Otuataua Stonefields historic reserve. [3] To the north-east is the village of Ihumatao and Makaurau Marae. To the east and south-east, across Oruarangi Road, the area is rapidly being developed for light industrial purposes. To the south-west the area remains in rural use, but is zoned for future urQan purposes. To the west and north are the Otuataua Stonefields, a historic The property is legally described as Part Allotment 175 and Allotment 176, Parish of Manurewa . 3 reserve listed as a Category 2 Historic Place ,2 generally zoned for conservation purposes and consisting of nearly all of the remaining volcanic fields around two remnant volcanic cones , Otuataua and Pukeiti. [4] The subject property contains several archaeological sites , including two shell midden relating to Maori occupation and a number of drystone walls and drainage systems, the construction dates of which are disputed. It is these archaeological sites that are the subject of the application by Fletcher Residential Limited (Fletcher) to Heritage New Zealand Pouhere Taonga (HNZPT) for an authority under s 44 of the Heritage New Zealand Pouhere Taonga Act 2014 (HNZPTA or the Act). [5] The development of the land for res idential purposes is strongly opposed by the appellants and their appeal is against HNZPT's decision in its entirety, seeking that it be reversed . They say in their notice of appeal that the area is an extensive wahi topuna 3 and is raupatu land taken by the Crown in 1863 when the existing Maori population was forcibly evicted . They say further that the known archaeological sites on the land indicate that there are potential sites yet unrecorded, together with sacred caves and lava tunnels . They also say it is the statutory duty of HNZPT to preserve and protect this area of archaeological sites and that its decision fails to provide for the historical and cultural value of the sites or for the purpose and principles of the Act or for the relationship of Maori and their culture and traditions with their ancestral lands, water, wahi tupuna, wahi tapu and other taonga . They raise complaints that the investigation of the archaeology of the area is incomplete and that there has been insufficient consultation with tangata whenua. [6] In response, HNZPT says that the Authority granted by it excludes areas of archaeological sites , including burial caves, the remains of the 19th century Wallace homestead and part of remaining drystone wall features , and is subject to conditions in relation to archaeology that is found during the development process. Its defence of its decision to grant the Authority is supported by Fletcher as the appl icant, and by the s 274 parties, Te Kawerau Iwi Tribal Authority and Makaurau Marae Maori Trust, as representatives of tangata whenua. [7] 2 3 Fletcher says that residential development of most of the site has been New Zealand Heritage LisURarangi K6rero number 6055, entered on 21 November 1991. Defined in s 2 HNZTPA as a place important to Maori for its ancestral significance and associated cultural and traditional values . 4 contemplated since 2012 when , by a decision of the Environment Court,4 the area was brought within the Metropolitan Urban Limit that used to apply under the earlier provisions of the Auckland Regional Policy Statement and zoned for future development. It says further that its proposal was lawfully authorised by its identification as a special housing area in 2014 and by further district plan variations to the Auckland Unitary Plan and by the grant of associated resource consents for subdivision and land use in 2016, all under the Housing Accords and Special Housing Areas Act 2013 (HASHAA). The parties [8] The appellant, Betty King, is a kuia with an undisputed whakapapa connection to Makaurau Marae. Counsel for Ms King explained that she was unable to attend the hearing because of recent health issues. In light of the indication given by all other parties that they did not wish to cross-examine her, Ms King's attendance was excused. [9] Pania Newton describes herself as a rangitahi member of Makaurau Marae. She gave no evidence of her whakapapa. She claims to have the support of the Makaurau Marae Committee. [10] Nga Kaitiaki Ihumatao Charitable Trust was formed in 2017, and its deed states its purpose as being to "protect the whenua at Ihumatao and provide education about the significance of the whenua at Ihumatao." [11] SOUL Ihumatao is an unincorporated society formed of Maori and Pakeha residents of Ihumatao and Mangere and other supporters concerned about the archaeology and history of Ihumatao. We understand that SOUL is an acronym for Save Our Unique Landscape. [12] HNZPT is a statutory entity established under the HNZPTA, responsible for the administration of that Act and relevantly having among its functions :5 (c) To advocate the conservation and protection of historic places, historic areas, wahi tupuna, wahi tapu and wahi tapu areas: ... (e) To issue authorities in accordance with this Act: ... (i) 4 5 To act as a heritage protection authority under Part 8 of the Resource Management Act 1991 for the purposes of protecting - Gavin H Wallace Ltd & Drs v Auckland Council [2012] NZEnvC 283. Section 13 HNZPTA. 5 [13] (i) the whole or part of a historic place, historic area , wahi tupuna , wahi tapu or wahi tapu areas; and (ii) land surrounding the historic place, historic areas, wahi tupuna, wahi tapu or wahi tapu area that is reasonably necessary to ensure the protection and reasonable enjoyment of the historic place, historic area , wahi tupuna, wahi tapu or wahi tapu area. Fletcher Residential Limited is a subsidiary of Fletcher Building Limited . It specializes in greenfield subdivision and development, primarily the construction of residential dwellings. [14] Te Kawerau Iwi Tribal Authority is one of two (together with Te Kawerau Iwi Settlement Trust) representative bodies of Te Kawerau a Maki. The rohe of Te Kawerau a Maki extends from South Auckland and the Tamaki River northwards across the Tamaki isthmus, through Hikurangi (West Auckland) and the lands around the upper Waitemata Harbour and North Shore and into the Kaipara and Mahurangi harbour areas. They are the northern-most iwi of the Tainui waka. They lived for generations at Puketapapa, but were exiled by the Crown in the 1860s, later returning to their old papa kainga. It was a party to the plan change proceedings in 2012, when the Ihumatao land was brought inside the Metropolitan Urban Limit. [15] Makaurau Marae Maori Trust is a charitable trust established in 2004 which is responsible for the management of that marae. It is affiliated to Te Wai-o-Hua who are also tangata whenua in this area. It was also a party to the plan change proceedings in 2012 . It is a different entity to the Makaurau Marae Committee. Statutory provisions [16] The purpose of the HNZPTA, as set out in s 3 of the Act, is "to promote the identification , protection , preservation, and conservation of the historical and cultural heritage of New Zealand ." [17] In light of that purpose, all persons performing functions and exercising powers under the Act must recognise the principles set out in s 4: (a) the principle that historic places have lasting value in their own right and provide evidence of the origins of New Zealand's distinct society; and (b) the principle that the identification, protection , preservation, and conservation of New Zealand 's cultural heritage should(i) take account of all relevant cultural values, knowledge, and disciplines; 6 and (ii) take account of material of cultural heritage value and involve the least possible alteration or loss of it; and (iii) safeguard the options of present and future generations; and (iv) be fully researched , documented, and recorded , where culturally appropriate; and (c) the principle that there is value in central government agencies, local authorities, corporations, societies, tangata whenua, and individuals working collaboratively in respect of New Zealand's historical and cultural heritage; and (d) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi topuna , wahi tapO , and other taonga . [18] In s 2 of the Act the term "archaeological site" is defined to include any place in New Zealand that was associated with human activity that occurred before 1900 and that may provide, through investigation by archaeological methods, evidence relating to the history of New Zealand. The term "historic place" is defined to mean any land, including all or part of any archaeological site, and all or part of a building or structure, or any combination of those things that forms part of the historical and cultural heritage of New Zealand . [19] The words and phrases in Maori in s 4(c) and (d) are interpreted as follows in s 6: tangata whenua means, in relation to a particular place or area , the iwi or hapO that holds, or at any time has held, mana whenua in relation to that place or area wahi tapu means a place sacred to Maori in the traditional, spiritual, religious, ritual , or mythological sense wahi tapu area means land that contains 1 or more wahi tapu wahi tupuna means a place important to Maori for its ancestral significance and associated cultural and traditional values, and a reference to wahi topuna includes a reference , as the context requires , to(a) wahi tTpuna: (b) wahi tupuna: (c) wahi tipuna [20] No interpretation is given in s 6 of the Act for the term "mana whenua ." [21] Section 16 of the Act requires HNZPT to adopt, according to the procedure set out in s 17, statements of general policy for the following matters listed in s 17(1)(b): (i) for the adm inistration of archaeological sites under subparts 2 and 3 of Part 3 and subpart 2 of Part 4; and (ii) for the historic places owned or controlled by, or vested in, Heritage New Zealand Pouhere Taonga; and 7 (iii) for the administration of the New Zealand Heritage LisURarangi K6rero; and (iv) for the administration of the Landmarks list; and (iv) for the statutory role of advocacy conferred on Heritage New Zealand Pouhere Taonga by section 13(1)(c) and on the Council by section 27(1)(i). [22] Section 20(1) of the Act requires HNZPT not to act inconsistently with any adopted statement of general policy, but s 20(2) provides that no person may require HNZPT to implement any such statement and s 20(3) goes on to provide that failure by HNZPT to comply with such a statement does not affect the validity or enforceability of, among other things, an authority granted by HNZPT. [23] The principal regulatory provision in the Act is in s 42(1) : (1) Unless an authority is granted under s 48 , 56(1 )(b) or 62 in respect of an archaeological site, no person may modify or destroy, or cause to be modified or destroyed, the whole or any part of that site if that person knows, or reasonably to have suspected , that the site is an archaeological site. [24] The Act sets out a procedure for determining applications for authorities. It is pertinent to note that as well as requiring an authority to carry out an activity in relation to any archaeological site, the applicant for or holder of such an authority must also apply to HNZPT for approval of a person nominated to undertake the activity. The qualifications of such a person are set out in s 45 as follows: 45 Application for approval of person to carry out activity (2) A person must not be approved to carry out an activity under subsection (1) unless Heritage New Zealand Pouhere Taonga is satisfied that the person(a) has sufficient skill and competency, is fully capable of ensuring that the proposed activity is carried out to the satisfaction of Heritage New Zealand Pouhere Taonga, and has access to appropriate institutional and professional support and resources; and (b) in the case of a site of interest to Maori(i) . has the requisite competencies for recognising and respecting Maori values; and (ii) [25] has access to appropriate cultural support. An application for authority must also be accompanied by information set out in s 46(2) as follows : 46 Information that must be provided with application for authority (2) An application must include the following information : (g) except in the case of an application made under section 44(b), an assessment 8 of- [26] (i) the archaeological, Maori, and other relevant values of the archaeological site in the detail that is appropriate to the scale and significance of the proposed activity and the proposed modification or destruction of the archaeolog ical site; and (ii) the effect of the proposed activity on those values; .. . HNZPT has a broad discretion under s 48 to grant an authority in whole or in part subject to any conditions it sees fit, or to refuse to grant an authority. It must make its determination in accordance with the requirements of ss 49-52. [27] A right of appeal in relation to the exercise of the power to determine an application for an authority is conferred by s 58 on "any person who is directly affected by the exercise of [that] power". Section 59( 1) provides: 59 Decision on appeal (1) In determin ing an appeal made under section 58 , the Environment Court(a) must, in respect of a decision made on an application made under section 44, have regard to any matter it considers appropriate, including(i) the historical and cultural heritage value of the archaeological site and any other factors justifying the protection of the site: (ii) the purpose and principles of th is Act: (iii) the extent to which protection of the archaeological site prevents or restricts the existing or reasonable future use of the site for any lawful purpose: (iv) the interests of any person directly affected by the decision of Heritage New Zealand Pouhere Taonga: (v) a statutory acknowledgement that relates to the archaeological site or sites concerned : (vi) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tOpuna, wahi tapu , and other taonga; and (b) may confirm or reverse the decision appealed against or modify the decision in the manner that the Environment Court thinks fit. Relevant case law (2) This Act... (e) continues to prohibit the modification or destruction of an archaeological site unless an authority for the modification or destruction is obtained from Heritage New Zealand Pouhere Taonga under this Act. .. 9 [29] In Te Am Heritage Trust v New Zealand Historic Places Trust (Pouhere Taonga),6 the Environment Court summarised the approach as follows: [372] The case law supports the contention that while the principles in s 4(2) [now, s 4] recognise that historic places have intrinsic value ... , they contemplate the alteration to or loss of sites of cultural heritage value (although seeking minimization of this) ... [373] The purpose of the HPA has been considered in Ngati Wai Trust Board v Historic Places Trust (Pouhere TaongaF (and subsequently in Taipan"fl) where it was held that the Act contemplates the destruction or modification of archaeological sites in appropriate circumstances: We have already quoted s 4 of the Historic Places Act which sets out the purpose and principles of the Act. We accept that they need to be understood according to their context. Relevantly, the references to protection and preservation need to stand with the provisions of Part I of the Act which empower the Historic Places Trust to authorise destruction of archaeological sites in appropriate cases. The Act contemplates that any destruction or modification will be done under controlled circumstances, so that the full historical record that may be available is obtained .. .. The principles of the Act do not necessarily require the retention in situ of all archaeological remains. Depending on the intrinsic value of the site, the principles may be recognised by providing for careful investigation, recording of deposits under appropriate supervision, reporting of findings, and curation and storage of selected materials. [30] It is also clear that the relevant statutory frame in which this appeal must be determined is that provided by the HNZPTA, and not the RMA. While the procedural provisions for this appeal are those in the RMA,9 and while the listing of matters to which this Court must have regard in s 59(1) does not limit our powers under the RMA,10 our judgment of the issues arising in this appeal and our determination must be undertaken in light of the purpose and principles of the HNZTPA. As the Court said in Tuhakaraina & Ors v Pouhere Taonga {New Zealand Historic Places Trust) :11 .. . It is not open to us to embark upon an appraisal as though these proceedings were directed to broad district planning issues under the RMA. That is not to say, of course, that the site should be viewed in a vacuum, without regard to a wider context or perspective, in order to assess its historical and heritage value. In fact, the evidence for the Applicant and the Trust was at pains to assess the site in the wider sense by carefully reviewing its nature, form and position, its age, its scarcity/commonness, its state relative to other midden sites, its degree of significance in terms of the value perspectives pointed to under the legislation , and the practical effect on the subdivision should the site be required to remain. 6 7 8 9 10 11 Te Aro Heritage Trust v New Zealand Historic Places Trust (Pouhere Taonga) Decision W52/2003. Ngati Wai Trust Board v Historic Places Trust (Pouhere Taonga) [1996] NZRMA 222 at [233]-[234]. Taipari v Pouhere Taonga (New Zealand Historic Places Trust) Decision A102/97. Section 58(4) HNZPTA 2014. Section 59(2) HNZPTA 2014. Tuhakaraina & Ors v Pouhere Taonga (New Zealand Historic Places Trust) Decision A0121/2004 at [14]. 10 [31] Under the current Act, the Court has noted that the focus must be on particular archaeological sites and not the wider area. In Greymouth Petroleum Limited v Heritage New Zealand Pouhere Taonga,12 the Court said: [38] We consider that it is abundantly clear from [s 46(2)] that the sections of the Act under consideration are directed at the protection of archaeological sites themselves and not wider areas beyond them . It is correct that the matters identified in s 59(1 )(a) of the Act, which might be considered when determining an application under s 44, are very wide in scope, but they are clearly matters which must apply to the archaeological site in respect of which an application has been made. Section 59( 1)( a)(i) , (iii) and (v) specifically state that. [32] Discussing the issue of whether the provisions of the Act applied so as to protect a "broader cultural landscape", the Court held that it did not. The Court accepted submissions that the respective schemes of the HNZTPA and the RMA are clearly that: (i) Heritage New Zealand regulates physical interference by modification or destruction of archaeological sites under the HNZTPA; (ii) Local authorities regulate land use through the use of local planning instruments, including any other form of interference with archaeological sites; and (iii) Heritage NZ can have a role in local authority processes under the RMA as a Heritage Protection Authority, including by way of the New Zealand Heritage LisURarangi Korero and/or by way of the use of Heritage Orders under the RMA. [33] A recent example of a case under the RMA where the significance of the cultural landscape was relevant to determining which rules to regulate land use were the most appropriate is Self Family Trust v Auckland Council,1 3 where the cultural values associated with certain land were found to be a reason not to bring that land within Auckland's Rural Urban Boundary, and therefore not to allow urban development on it. The decision of HNZPT [34] The decision of HNZPT which is the subject of this appeal is the grant of Authority No: 2018/064 on 27 September 2017 to Fletcher Residential Limited in respect of land at 545-565 Oruarangi Road, Mangere, also known as Part Allotment 175, Parish of Manurewa, Allotment 176, Parish of Manurewa and the Ihumatao Quarry Road reserve 12 13 Greymouth Petroleum Limited v Heritage New Zealand Pouhere Taonga [2016] NZEnvC 11. Self Family Trust v Auckland Council [2018] NZEnvC 49. 11 (the Authority) . The Authority refers to Archaeological Sites R11/2997, R11/3000 and R11/3090 and "potential sites as yet unrecorded" and names Dr Rod Clough as the approved archaeologist. It states an expiry date of 27 September 2022. [35] The Authority authorises Fletcher Residential in respect of "the proposal to undertake works required for residential subdivision at 545 - 561 Oruarangi Road , Mangere, subject to the following conditions :" There are ten conditions which require : (i) briefing of all contractors by the approved archaeologist at the start of each stage of works on the possibility of encountering archaeological evidence and what to do if that happens; (ii) the Authority to be exercised in accordance with the management plan attached to the application; (iii) all earthworks to be monitored by an archaeologist approved by HNZPT; (iv) any archaeological evidence encountered to be investigated, recorded and analysed; (v) prior to earthworks commencing, the carrying out of an archaeological investigation of the listed archaeological sites in accordance with the research strategy submitted with the application; . (vi) HNZPT to be satisfied with the completion of that investigation and given its written approval before the next stage of works; (vii) after consultation with tangata whenua and HNZPT, and subject to HNZPT's satisfaction, the erection of a public interpretation panel in the application area referencing the findings of investigations under the Authority; (viii) specific provision for access by and information , notification and reporting to tangata whenua ; (ix) interim reports and updated or submitted site records to HNZPT; and (x) final reports to HNZPT with copies to tangata whenua , the University of Auckland and the Auckland Museum. A plan is attached to the Authority, being Harrison Grierson Drawing No: 13653701-081 Rev A dated 21 .06.17 for the project Fletcher Living Special Housing Area 12 Oruarangi Road and titled "5m Construction buffer and area to be excluded from the Authority application." This plan shows the subject land divided into five areas: two stage areas, an area excluded from the Authority application , the extent of Stage 1 and 2 earthworks and a balance area. It also shows a boundary between the balance area and the excluded area which includes a "5 metre construction buffer" and the "extent of construction area for Authority application. A reduced copy of this plan is attached as Appendix A. Standing to appeal [37] Section 58(1) of the Act provides: Any person who is directly affected by the exercise of the power referred to in subsection (2) may appeal against that decision by notice of appeal to the Environment Court. [38] Among the powers listed in s 58(2) is the power under s 48 to determine an application for an authority. HNZPT's determination of Fletcher's application for an authority is the subject matter of this appeal. [39] Fletcher challenges the standing of three of the appellants: (i) Ms Newton; (ii) Nga Kaitiaki 0 Ihumatao Charitable Trust; and (iii) SOUL Ihumatao. [40] Counsel for Fletcher refers to Campaign for a Belter City v New Zealand Historic Places Trust,14 where the High Court held that effect has to be given to the word "directly" and found that some of those who could be said to be "directly affected" by a decision could include: (a) any person with proprietorial interest in the land; (b) the applicant for the authority the subject of the appeals; (c) tangata whenua who are linked to the site through their ancestry; and (d) other persons without a proprietorial interest in the land, such as children and grandchildren being directly affected by a proposal to dig up a grandparent's 14 Campaign for a Better City v New Zealand Historic Places Trust [2004] NZRMA 493 (HC) 13 grave. Whether any such person was "directly" affected is a matter to be determined on the evidence. [41] The High Court also held that a feeling of attachment based on reasons other than a proprietorial interest (or, presumably, an ancestral connection) is not enough, and it is necessary to look at underlying facts which establish the attachment. [42] The relationship of Maori to a site or area was considered in Ngati Wai Trust Board v NZ Historic Places Trust,15 where the Court said at [382]: Tangata whenua whether iwi, hapu, whanau or other grouping ought to be able to choose some representative, whether an individual or individual natural persons , or some organisation, corporate or incorporate, to represent them and to act for them as the vehicle or the conduit of their interest as those directly affected . Those persons, those representatives should not be debarred from being treated likewise as directly affected and being entitled to be the nominal appellant. It will be a question in each case whether there is an adequate mandate or authority, and whether those who have given that mandate or authority are truly directly affected in the particular circumstances of the case . [43] Counsel for Fletcher accepted that Ms King had given evidence of her ancestral connection, through her whakapapa, to the area including the site. However, counsel submitted that there was no evidence of a similar kind presented by or on behalf of Ms Newton, Nga Kaitiaki [44] 0 Ihumatao Charitable Trust or SOUL Ihumatao. This position was supported by HNZPT and by Te Kawerau Iwi Tribal Authority Inc and the Makaurau Marae Maori Trust, who also accepted that Ms King has standing . [45] HNZPT submitted, however, that this appeal should proceed on the basis that Ms King's unchallenged standing meant that the appeal should not be struck out and, further, that there is no need for the Court to make any definitive findings on whether or not any of the other appellants is a directly affected person. [46] A.....~?1 "FJI~ a! 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