By: Lucy de Latour, Tegan Wadworth
The recent High Court decision, Ngata Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Limited [2020] NZHC 2768, provides guidance to decision makers presented with conflicting iwi claims on proposals for resource consent.  We set out the key takeaways decision makers should keep in mind.

By way of background, Ngāti Whātua Ōrākei contested they hold primary mana whenua (customary authority in an identified area) over the land in relation to Panuku’s Westhaven Marina development in Tāmaki Makaurau, central Auckland.  

Ngāti Whātua Ōrākei’s claim recognised a number of other iwi have legitimate customary relationships with the Westhaven area.  However, Ngāti Whātua Ōrākei rejected the idea that all other iwi have the same level of interest and that all iwi should be given the same status under the consent conditions relating to mana whenua engagement.  

The Environment Court decision

The Environment Court held it did not have jurisdiction to determine whether any tribe holds primary mana whenua over an area the subject of a resource consent generally.

However, the Environment Court held, in the context of the requirement under section 6(e) of the Resource Management Act 1991 (RMA), it has jurisdiction to determine the relative strengths of the hapu/iwi relationships in an area affected by a proposal, where it is relevant to claimed cultural effects of the application and wording of the resource consent conditions.

The High Court decision

Other iwi authority submitters appealed the Environment Court decision. They considered decision makers do not have jurisdiction to assess relative strengths of relationship to land to the extent that would involve identifying an “iwi pecking order”.

The High Court agreed the Environment Court does not have the jurisdiction under Part 2 of the RMA to confer, declare or affirm tikanga-based rights, powers and/or authority.  Tikanga Māori under the RMA means Māori customary values and practices.

The High Court also agreed the Environment Court has jurisdiction to determine the relative strengths of the iwi relationships to an affected area.  A relative strength claim must be:
  • grounded in and defined in accordance with tikanga Māori and mātauranga Māori (Māori knowledge);
  • linked to the decision maker discharging a statutory obligation to Māori under the RMA; and
  • linked to a specific resource management outcome. 
These requirements ensure decision makers are not seeking to generally confer or declare tikanga based rights, powers and/or authority or rank iwi. Decision makers taking this approach are assessing, at a particular time, on the evidence, it is more likely than not the relationship of one iwi is stronger than another iwi in relation to particular land.

After having made the evaluation, the decision maker will still need to consider what that evaluation means for the individual case before them, having regard to all of the iwi claims.

Although a complex task, the Court observed it is inevitable there will be some occasions where there will be conflicting iwi claims. Decision makers may need to make a choice as to which course of action best discharges their statutory duties to Māori under the RMA.

Conclusion

The appeal was allowed in part due to a procedural error.  However, the High Court’s comments in relation to assessing the relative strengths of relationships of iwi to land still stand.  This approach provides useful guidance to decision makers on the process to follow when faced with conflicting iwi claims under the RMA.   

Please contact one of our Resource Management and Environmental Law specialists if you would like to discuss the implications of this case.
 
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