Application for leave for extension of time to appeal – Senior Courts Act 2016, s 75 – Resource Management Act 1991 – proprietary rights – Regional Freshwater Plan – Local Government Act 2002, s 101 – Marine and Coastal Area (Takutai Moana) Act 2011, s 4 – New Zealand Bill of Rights Act 1990 – Criminal Procedure Act 2011.

Te Whānau a Kai Trust v Gisborne District Council [2023] NZSC 77.

Te Whānau a Kai Trust v Gisborne District Council [2023] NZCA 55.

Note: On 29 June 2023, the Supreme Court declined the trust’s application for an extension of time to seek leave to appeal. The court recorded the trust’s proposed arguments and said they were “largely the same as in the courts below”. Without adding its own analysis, the court recorded the Court of Appeal’s findings on each argument, describing the judgment as “fully reasoned”. This case note focuses on the Court of Appeal’s decision.

Te Whānau a Kai Trust is the mandated representative of  Tūranganui-a-Kiwa iwi, Te Whānau a Kai. Gisborne District Council, a unitary council under the Local Government Act 2002, has the functions and responsibilities of both a territorial and regional authority. As a regional authority under the Resource Management Act 1991 (RMA), it must prepare a regional freshwater plan. The council’s plan became operational in 2017.

During consultation, the trust made a submission to the council seeking to insert certain provisions into the plan, including recognition of its proprietary interest in freshwater within its traditional territory. When the council did not include the submitted provisions, the trust appealed to the Environment Court, which found against the trust on the key issues. The court held it did not have jurisdiction to direct the inclusion of the kind of provisions the trust sought. And even if it had jurisdiction, it ruled the evidence was lacking to establish unextinguished customary or native title. Further, the RMA did not empower the court to require the council to help the trust technically and financially on the freshwater issues.

The trust appealed unsuccessfully to the High Court and then sought leave to appeal to the Court of Appeal. Failing to get leave, the trust then applied for leave to appeal out of time directly to the Supreme Court.

The right to appeal to the High Court and the appellate courts is limited to questions of law, which the trust framed as:

• statutory jurisdiction, iwi proprietary rights;
• formulation of evidentiary test for proprietary rights;
• could the RMA and Local Government Act be read together to enable and require councils to resource proprietary rights? and
• whether the “tikanga wai Māori” definition in the freshwater plan should expressly state Māori customary “laws” in addition to “Māori customary values and practices”.

Applicable principles: matters argued were those argued in courts below Supreme Court – error of law must impact result – serious argument an error of law necessary – onus on applicant to establish error – error must be of general or public importance – Environment Court decides factual and technical matters – Environment Court a specialist tribunal – question must be of interest or importance – general interest or importance insufficient – question must transcend party’s interests – RMA purpose to manage resources – councils must recognise and provide for Māori interests – no specific or implicit Environment Court title jurisdiction in RMA – acknowledged RMA in breach of treaty principles – appeal not vehicle for law reform – no jurisdiction means evidential test formulation academic – RMA has no proprietary rights funding mechanism – council funding by LGA framework – Environment Court cannot circumvent LGA decision-making framework – seldom one “correct” definition – Supreme Court authority – reading of definition to include tikanga law.

Held: Court of Appeal

• Not seriously arguable the Environment Court had jurisdiction under the RMA to include proprietary rights. Emphasised findings limited to jurisdiction were unrelated to merits of the proprietary rights claim.
• Formulation of evidentiary test is a question of law of general importance, but lack of Jurisdiction means it cannot justify leave to appeal.
• It was not seriously arguable the RMA provides a mechanism to prescribe a decision-making outcome under the LGA.
• The Environment Court’s adoption of the tikanga wai Māori definition – “Māori customary values and practices in regard to activities concerning freshwater resources” – was made after hearing and considering the evidence. The court is “a specialist court and expert tribunal” and it was appropriate to defer to it in this matter.

Andrea Hilton is a sole practitioner who previously worked as in-house counsel in local government.

Te Whanau A kai Trust v Gisborne District council [2023] NZSC 77

Te Whanau A kai Trust v Gisborne District council [2023] NZCA 55