He Whakaaro Increased protection for ancestral lands and waters

Opinion
nā Tom Bennion

Three recent judgments from three different courts have had lawyers talking in the last few weeks. The first two made national headlines. The third was not so widely reported, but may prove to be the most important in terms of protection of ancestral lands and waters.

In March 2014, the Māori Land Court recommended that 5.77 hectares of Māori land near Waikanae should be declared a Māori reservation, “as a place of cultural and historic significance and a wāhi tapu, being a place of special significance according to tikanga Māori”. This is not an unusual occurrence in itself, but the land is owned by author Patricia Grace, a descendant of the noted politician Wi Parata Te Kākākura, and it sits in the path of an expressway that the New Zealand Transport Agency intends to build as part of the government’s “roads of national significance”. The recommendation of the Māori Land Court means that the land becomes inalienable.

The outcome is that land held as a Māori reservation simply cannot be taken under the RMA and Public Work Act for road building or any other public work.

Several days after the Māori Land Court decision, the Environment Court decided that there is no power under the Resource Management Act or Public Works Act for the Transport Agency to compulsorily purchase land protected as inalienable by Te Ture Whenua Māori Act 1993. The Environment Court also noted a decision of the Privy Council in 2002 that “if an alternative route not significantly affecting Māori land… were reasonably acceptable, even if not ideal, it would accord with the spirit of the [RMA] to prefer that route” McGuire v Hastings District Council [2002] 2 NZLR 577 (PC). It considered that it was not reasonably necessary to take the land. A small adjustment to the expressway to avoid the land would cost around $2.3 million. Nor would it be fair to take the land, since the land held all of the cultural values that the Māori Land Court had noted.

The Environment Court was critical of the Transport Agency for saying the land was needed for a cycleway, when its main purpose was for earth batters to support the expressway, and for saying that alternative routes could cost $16 million, when a $2.3 million alternative was available. The outcome is that land held as a Māori reservation simply cannot be taken under the RMA and Public Work Act for road building or any other public work.

The third decision was made by the Supreme Court and concerned salmon farm sites in the Marlborough Sounds, which were sought by a private company, King Salmon Limited, also as a matter of “national significance”. The Supreme Court has essentially ruled that, under the RMA, if a planning document such as the New Zealand Coastal Policy Statement or a regional policy statement provides that certain activities should be “avoided”, that is an environmental bottom line that cannot be breached. So, for example, where the New Zealand Coastal Policy Statement says that people must “avoid adverse effects of activities on outstanding natural features and outstanding natural landscapes in the coastal environment”, that absolutely prevents a marine farm locating in an area of outstanding natural landscape, no matter what its claimed benefits. Similarly, there may be regional policy statements that require authorities to “avoid” the destruction of, or damage to, wāhi tapu or other features of potential historical, spiritual, or cultural significance. Lawyers are still teasing through all the implications of the Supreme Court decision, but it is likely to have a significant impact on RMA law in coming months and years.

Tom Bennion is a Wellington lawyer specialising in resource management and Māori land claim and Treaty issues. Formerly a solicitor at the Waitangi Tribunal, he is the editor of the Māori Law Review. He recently wrote a book titled Making Sense of the Foreshore and Seabed.