The Covid-19 Recovery (Fast-track Consenting) Act 2020 (“FTCA”) was enacted to facilitate economic and social recovery from the impacts of Covid-19. It allowed referred and listed projects to be consented by an expert panel rather than requiring them to go through ordinary resource consenting procedures.
Hiringa Energy Ltd and Balance Agri-Nutrients Ltd (“Respondents”) sought to establish a renewable wind energy facility with infrastructure for the production of hydrogen as an alternative transport fuel. They sought consent for the project under the FTCA and the Minister referred the project to an expert panel for consent (“Panel”).
The project required a number of wind turbines to be installed on site. Evidence showed the turbines obstructed the view of Taranaki Maunga (mountain) from the rohe (governance area) of various hapū in the area. The Panel accepted that obstruction of the view of the maunga could have adverse cultural impacts on the hapū.
The Respondents engaged with the hapū prior to the consent hearing. No consistent view was expressed. Some hapū tentatively supported the project while others were opposed. The existence of the turbines was the major sticking point.
As a result, the Respondents agreed to take various actions (including limiting the number of turbines to four and decommissioning them after a maximum of 35 years) to mitigate the damage to the taonga. The Panel granted the consents and included these agreements as consent conditions.
Several hapū and the designated post-Treaty settlement governance entity in the area (“Hapū Appellants”) and Greenpeace appealed the consent decision to the High Court. The High Court dismissed the appeal, and the Hapū Appellants and Greenpeace appealed to the Court of Appeal.
This case brief describes Hapū Appellants’ appeal.
Under the FTCA, panel decisions were appealable on questions of law only. Accordingly, the court noted it was not concerned with whether the Panel decision was right or wrong - their enquiry was confined to whether the Panel had correctly understood and applied the relevant law.
The Hapū Appellants argued the Panel had made an error of law as their decision was inconsistent with the principles of the Treaty of Waitangi.
Treaty clauses
‘Treaty clauses’ are a term used colloquially to describe statutory provisions that require (usually) public decision-makers to engage in some way with the principles of the Treaty of Waitangi. These clauses are the primary means by which the Treaty has binding effect in New Zealand law; the Treaty itself not being directly enforceable in the courts. The courts have created the Treaty principles on a case by case basis, beginning with the landmark Lands decision in 1987.
The FTCA Treaty clause required decision-makers under the FTCA to “act consistently” with the Treaty principles. This was a bottom line requirement – a decision that was inconsistent with the Treaty principles would be unlawful regardless of the extent to which it promoted the purposes of the Act.
What Treaty principles applied
The Hapū Appellants argued that the “active protection” Treaty principle applied. As the parties agreed that the turbines could cause spiritual harm, the Hapū Appellants argued that active protection required the Panel to decline the consent or require an alternative site for the turbines where they did not obstruct the view.
The court rejected this argument. Relevant case law and Waitangi Tribunal decisions had established that the overarching Treaty principle was ’partnership’. The Crown and Māori were obliged to act in good faith and reasonably in their dealings, a requirement which implied an element of give and take.
The active protection principle was an element of partnership – the courts and Waitangi Tribunal had noted that in some cases, the Crown must take an active role in protecting Māori interests in order to satisfy the principle of partnership. An example was the decision of the Broadcasting Assets case in the Privy Council, which found that the partnership principle required the Crown to take an active role in preserving Te Reo.
As an element of partnership, the active protection principle was necessarily fluid. The court emphasised that the principle had never given Māori veto rights over Crown decisions that would harm their interests.
Was the Panel’s decision inconsistent with the Treaty principles?
The court held that the Panel’s decision was consistent with the partnership and active protection principles.
The Crown’s interest strongly favoured allowing the project to proceed, as there was no dispute from the Hapū Appellants that it was inconsistent with the purpose of the Act. This interest had to be balanced against the interest of the Hapū Appellants in preserving their relationship with the maunga.
The court held that the Hapū Appellants’ interest had been sufficiently protected. They noted the hapū most affected had been supportive of the project, there had been ample engagement with all effected hapū, and the engagement had resulted in a number of consent conditions that protected the taonga relationship with the maunga.
As a result, the consent decision was consistent with the Treaty principles and there was no error of law.
Result
The appeal was dismissed on all grounds. The decision has not been appealed to the Supreme Court, meaning the Respondents’ project is free to proceed on the conditions agreed by the Panel.
The court declined to award costs against the Hapū Appellants on the ground that they had brought the appeal in the public interest.
This case is an important reminder that the Treaty of Waitangi is not directly enforceable in New Zealand law. Even where an Act gives strong status to the Treaty principles, the courts will balance the interests of the Māori parties against the public interest underlying development. The Treaty does not give Māori veto rights over public projects that affect their physical, economic, or spiritual interests.
For further information on this case or similar issues, please contact Director, Brigitte Morten
