WAIKANAE CHRISTIAN HOLIDAY PARK INCORPORATED v NEW ZEALAND HISTORIC PLACES

TRUST MAORI HERITAGE COUNCIL [2013] NZHC 2319 [6 September 2013]

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2012-485-515

[2013] NZHC 2319

UNDER

the Judicature Amendment Act 1972

IN THE MATTER OF

an application for Judicial Review

BETWEEN

WAIKANAE CHRISTIAN HOLIDAY

PARK INCORPORATED

Plaintiff

AND

NEW ZEALAND HISTORIC PLACES

TRUST MAORI HERITAGE COUNCIL

First Defendant

TAKAMORE TRUSTEES

Second Defendant

Hearing:

25-26 March 2013

Counsel:

I R Millard QC and M S Smith for the Plaintiff

HJP Wilson and A M Hall for the First Defendant

L H Watson for the Second Defendant (granted leave to

withdraw)

Judgment:

6 September 2013

Reissued:

13 September 2013

JUDGMENT OF GODDARD J

This judgment was delivered by me on 6 September 2013 at 4.30 pm, pursuant to r 11.5 of the High Court Rules,

and reissued on 13 September 2013.

Solicitors: Rees-Thomas Law Ltd, Wellington for Plaintiff Kensington Swan, Wellington for First Defendant

Introduction

[1] On 25 August 2011, the first defendant, the Māori Heritage Council (the

Council) met with members of the Board of the Historic Places Trust to consider

initiating a review of the boundaries of an area of land in Waikanae registered as

wahi tapu. The area, known as the Takamore wahi tapu area, had first been

registered as wahi tapu under the Historic Places Act 1993 (the Act) in 1995.1

[2] A wahi tapu is a place sacred to Māori in the traditional, spiritual, religious,

ritual or mythological sense. A wahi tapu area is an area of land that contains one or

more wahi tapu.

[3] The review was sought by the second defendant, the Takamore Trustees (the

Trustees), a group mandated by the iwi to represent mana whenua interests in the

area.

[4] The outcome of the 25 August meeting was a decision to initiate and notify a

review of the boundaries of the Takamore wahi tapu area.

[5] Following notification of this review, submissions were received from a

number of interested parties, including the plaintiff, Waikanae Christian Holiday

Park Incorporated. On 14 December 2011, the Council met to consider the review

and the submissions received in response. In the outcome the Council unanimously

confirmed that the boundaries of the Takamore wahi tapu area should be extended

and the register amended accordingly.

[6] The extension to the boundaries included the whole of the plaintiff’s land.2

[7] The plaintiff challenges the decision to confirm the extension of the

boundaries to include its land on six main grounds. In addition eighteen sub-issues

were listed in an agreed summary of facts and issues filed by the plaintiff and first

defendant.

1 See appendix 1 for map of area registered as wahi tapu.

2 See appendix 1 for outline of new boundary.

[8] The Trustees filed a notice of appearance reserving their rights in this

proceeding but advised they are not sufficiently resourced to take an active part.

Their counsel, Mr Watson, appeared briefly at the hearing to seek leave to withdraw

and was granted leave accordingly.

[9] The six grounds of review advanced by the plaintiff are as follows:

(a) whether the Council erred in accepting an application for review with

no legal description of the general area of land affected, nor

specification of the general nature of the wahi tapu sought to be

included in the area;

(b) whether the Council failed to disclose relevant documents to the

plaintiff;

(c) whether the Council should have held an oral hearing to resolve

“disputed issues of fact”;

(d) whether the Council should have given reasons for its decision;

(e) whether the Council considered the impact of registration as a wahi

tapu area on the plaintiff’s property rights; and

(f) whether there was cumulative impropriety justifying intervention to set

the decision aside.

[10] The Council’s position is that it came to its decision to review and extend the

boundaries of the Takamore wahi tapu area, so as to include the plaintiff’s land,

lawfully and in accordance with its statutory powers under the Act. Whilst the

Council accepts that a potential purchaser of the plaintiff’s land may not be

sympathetic to the registration of a wahi tapu area and may regard it as some kind of

impediment to property rights, the Council says registration does not affect the

plaintiff’s rights nor diminish the plaintiff’s ability to exercise those rights in relation

to ownership, occupation and property development.

[11] The Council’s approach is that the plaintiff’s case is fundamentally

misconceived in relation to the Council’s role in considering and determining a

proposal to review registration of a wahi tapu area; and also misunderstands the

purpose and effect of registration of land as wahi tapu.

[12] As is invariably the case, the facts are a vital aid to resolution of the issues,

particularly in relation to the process that was followed and culminated in the

Council’s decision to confirm the extension to the boundaries of the Takamore wahi

tapu area.

[13] I will begin by outlining the legislative scheme, the internal processes, the

background facts and the Council’s decision. I will then consider amenability to

review, before going on to consider the grounds for review.

The legislative scheme

[14] The purposes and guiding principles of the Act are set out in s 4 of the Act,

which provides:

(1) The purpose of this Act is to promote the identification, protection,

preservation, and conservation of the historical and cultural heritage of

New Zealand.

(2) In achieving the purpose of this Act, all persons exercising functions

and powers under it shall recognise—

(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 historical and cultural heritage

should—

(i) take account of all relevant cultural values, knowledge, and

disciplines; 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 relationship of Maori and their culture and traditions with

their ancestral lands, water, sites, wahi tapu, and other taonga.

[15] The Act establishes the Historic Places Trust as the lead historic heritage

agency in New Zealand. The Trust is directed by an independent Board and the

Council. The Council has a specialist role in relation to any historic area, historic

place, wahi tapu or wahi tapu area associated with Māori heritage. These functions

are set out in s 85(a) and (e)–(h) of the Act. They are:

(a) to ensure that, in the protection of wahi tapu, wahi tapu areas, and historic places and historic areas of Maori interest, the Trust meets the

needs of Maori in a culturally sensitive manner:

...

(e) to make recommendations to the Trust on applications referred by the

Trust under section 14(3) that relate to archaeological sites of Maori

interest:

(f) to consider and determine proposals for the registration of wahi tapu

and wahi tapu areas:

(g) to propose the registration of historic places and historic areas of

Maori interest:

(h) to make recommendations to the Trust on applications for resource

consents referred by the Trust under section 33:

...

[16] An additional and related function to determining proposals for the

registration of wahi tapu and wahi tapu areas is the review, variation or removal of

such registrations under s 37 of the Act.

[17] The Historic Places Trust is required to establish and maintain a register,

which consists of four parts: one for historic places, one for historic areas, one for

wahi tapu and one for wahi tapu areas.3 The register is required to be open for public

inspection at the Historic Places Trust’s principal office in Wellington, as well as at

the Trust’s regional offices.4 The purpose of the register is to inform members of the

public about the areas recorded in it, to notify owners of these areas where necessary,

3 Historic Places Act 1993, s 22(3).

4 Section 36.

http://www.legislation.govt.nz/act/public/1993/0038/latest/link.aspx?search=ts_act%40bill%40regulation%40deemedreg_historic+places+act_resel_25_a&p=1&id=DLM300610http://www.legislation.govt.nz/act/public/1993/0038/latest/link.aspx?search=ts_act%40bill%40regulation%40deemedreg_historic+places+act_resel_25_a&p=1&id=DLM300667

and under s 22(2)(c) of the Act to assist in ensuring these areas are protected under

the Resource Management Act 1991 (RMA).5

[18] The legislative provisions which have assumed particular prominence in this

proceeding are s 32, which provides for matters and processes relevant to a proposal

for registration of a wahi tapu area; s 32A which provides for the procedures

required when a wahi tapu area is proposed; and s 37 which, in similar terms,

prescribes matters and processes relevant to review of a registration.

[19] Section 32 is as follows:

(1) Any person may propose to the Maori Heritage Council that any wahi

tapu area be entered on the register.

(2) Every proposal for registration shall contain a legal description of the

general area of land affected and specify the general nature of the

wahi tapu included in the area.

(3) If satisfied that the proposal is supported by sufficient evidence, the

Council must—

(a) publicly notify the proposal for registration in the manner that

the Council considers appropriate; and

(b) give notice in writing of the proposal to—

(i) any person that—

(A) is an owner of the wahi tapu area or part of the

wahi tapu area; or

(B) has a registered interest in the wahi tapu area or

part of the wahi tapu area; and

(ii) the relevant territorial authority and regional council; and

(iii) the appropriate iwi.

[20] The key provisions of s 32 for the purposes of this proceeding are those

requiring a proposal to register a wahi tapu area to contain a legal description of the

general area of land affected and to specify the general location and nature of the

wahi tapu; and the threshold criteria that a proposal must be supported by sufficient

evidence to satisfy the Council that a recommendation for registration is appropriate.

5 Section 22(2).

[21] Section 32A makes provision for the procedure to be followed if registration

of a wahi tapu area is proposed. The relevant provisions are as follows:

(1) The following persons may make written submissions on a proposal

under section 31 to register an historic area or on a proposal under

section 32 to enter a wahi tapu area on the Register:

(a) every owner of the historic area or wahi tapu area, or part of

the historic area or wahi tapu area:

(b) any occupier of the historic area or wahi tapu area, or part of

the historic area or wahi tapu area:

(c) every person having a registered interest in the historic area

or wahi tapu area, or part of the historic area or wahi tapu

area:

...

(2) The submissions must be made to the ... Council, ... , within—

(a) 20 working days after the public notification of the proposal

... ; or

(b) any longer period specified by the ... Council in a particular

case, but not longer than 40 working days after the public

notification of the proposal ...

(3) The Council may make any inquiries that it sees fit before deciding

whether to register a wahi tapu area.

[22] Section 37 provides for review, variation or removal of the registration of a

wahi tapu area after a period of three years. In the context of this case s 37(4), (6),

(7) and (8)(a) are of particular relevance:

(4) An application for the review of a registration must be made in the

prescribed form (if any) and state the grounds for review.

...

(6) However, the Trust or the Council (as the case may be)—

(a) may decline to consider any application that does not state

any grounds for review or if it considers that the grounds

stated are insufficient to justify a review; and

(b) must notify the applicant of its decision in writing.

(7) If the Trust or the Council decides to review a registration (whether

on its own initiative or as a result of an application), the Trust or the

Council (as the case may be) must conduct the review in the same

manner as if it were a proposal for registration or an application to

enter on the Register (as appropriate) under this Act.

(8) When its review is completed, the Trust or the Council (as the case

may be) may—

(a) vary the registration; or

(b) remove the registration; or

(c) confirm the registration;

...

Overview of internal processes

[23] When a proposal for registration of a wahi tapu area or an application for

review of a registration is received by the Trust, relevant research and inquiries may

be carried out (see s 32A(3)) and a number of in-house procedural steps may be

undertaken. As will shortly be outlined, in the present case there was the

involvement of a Steering Group, of the Technical Review Committee and of the

Historic Places Trust Lead Team before the application for review was placed before

the Council for its determination as to whether there was sufficient evidence to

justify a review being initiated and the application notified publicly and to interested

persons.

[24] Following the receipt of submissions from interested persons, the Council

considered and determined whether the application should be confirmed and the

existing registration varied accordingly.

Background facts

[25] On 15 May 1995, the then Chair of the Trustees, Robert Ngaia, applied to the

Council for registration of an area of land as wahi tapu on the basis that it contained

an urupā (a graveyard) and a Macrocarpa tree known as the Maketu Burial Tree. The

Burial Tree marked a number of sacred gravesites. The Council accepted the

application and registered the area as wahi tapu under s 30 of the Act on 4 August

1995.6 The area, referred to as the Takamore wahi tapu area, included Ngarara West

A24C (where the urupā is located) and Ngarara West A24B Lot 1 DP 23875. It

6 Section 30 has since been repealed. Registration is now provided for by s 32B.

comprised approximately 19.2 hectares in total. The land on which the Maketu

Burial Tree is located (which at that time was owned by the plaintiff but is now

owned by the Kapiti Coast District Council) was however omitted from registration.

This appears to have been an oversight. On 5 October 1995, registration of the area

as wahi tapu was notified by the Kapiti Coast District Council.

[26] The area was subsequently recorded in the Kapiti Coast District Council

Heritage Register in 1999. The area of land registered as wahi tapu by Kapiti Coast

District Council was in fact more extensive than that recorded by the New Zealand

Historic Places Trust in its Register. Nothing however turns on that discrepancy,

which appears to have caused no disquiet or demur.

[27] In 1997, a notice of requirement under the RMA was issued by the Kapiti

Coast District Council for the Western Link Road project. As this project would

affect both the plaintiff’s land and the Takamore wahi tapu area, all three parties

appealed the notice to the Environment Court. This was in 2002. The appeal was

dismissed and the designation confirmed. The parties then appealed to the

High Court, where the decision of the Environment Court was quashed and referred

back to the Court for reconsideration. In June 2003, the Environment Court again

upheld the notice of requirement. The parties unsuccessfully appealed that decision

in 2004. For the purposes of this judgment it is convenient to refer to these

proceedings as “the court proceedings”. It is also important to record here that

considerable evidence was advanced by the parties during these proceedings in

relation to the wahi tapu significance of the area. Bruce Stirling, a historian with

specialist expertise in historical Māori land issues, who had been earlier engaged by

the Trust to provide a report on the history of the Takamore urupā in 2001, gave

evidence on behalf of the plaintiff at the 2002 Environment Court hearing, based on

this report. It is not in issue that Mr Stirling has particular and relevant expertise and

experience in this area of history.

[28] As a result of the court proceedings, the Kapiti Coast District Council

acquired 6.3 hectares of land from the plaintiff in 2008 for the purposes of the

Western Link Road Project. This land included the site of the Maketu Burial Tree.

[29] In 2010 the New Zealand Transport Agency (NZTA) proposed an

expressway, with two options. One option would avoid the Takamore wahi tapu

area. In February 2011, the Council made submissions indicating a preference for

that option.

[30] It was as a result of the NZTA’s proposed action in relation to the expressway

that the Trustees came to realise there were anomalies in the area of land they had

sought to have registered as wahi tapu in 1995, a significant aspect of which was the

non-inclusion of the Maketu Burial Tree. On 27 June 2011, the Trustees wrote to

Te Kenehi Teira, the Kaihautū for the New Zealand Historic Places Trust, requesting

a review of the existing registration with a view to expanding it. The letter, written

by the solicitor for the Trustees, did not contain a legal description of any land that

might be affected by such an extension. It simply set out the basis for requesting a

review as follows:

1. I have instructions from the Takamore Trustees. Thank you for

making time with your Historic Places Trust colleagues to meet with

Trust chairperson Ben Ngaia and the writer on 2 June 2011 to discuss

the potential impacts of the proposed Expressway route on the

Takamore waahi tapu area.

2. The Trustees have instructed me to formally request from the Historic

Places Trust a review of the waahi tapu area, with particular reference

to the fact that the boundaries of the registered waahi tapu do not

accord with oral tradition and archaeological evidence concerning the

presence of kōiwi and taonga.

3. In one particularly recent example, you have been provided with a

report from archaeologist for the New Zealand Transport Agency,

Ms Mary O’Keeffe which clearly evidences the presence of kōiwi in

and around the Maketu tree area, which is outside the current

boundaries of the registered waahi tapu. There are also other

examples of similar anomalies.

4. The Trustees would wish to participate in any review process and

share the information that they have collated. The Trustees also

reiterate that this process is an urgent one, given the fact that NZTA

have publicly announced the preferred route for the Expressway.

[31] The process that followed this letter of request from the Trustee’s solicitor is

important.

[32] On 1 July 2011 the Council acknowledged receipt of the Trustees’ request

and on 5 July 2011 an internal registration project brief was prepared by Ms Collins,

the Māori Heritage Registrations Co-ordinator of the Historic Places Trust, who has

responsibility for managing and providing national coordination of wahi tapu and

wahi tapu registrations. The parties are agreed that the aim was for a speedy process,

so that if there were to be an extension of the wahi tapu area, this could be registered

before the expressway was determined.

[33] The project brief prepared by Ms Collins was detailed and covered all aspects

of the exercise, including a proposal to engage Mr Stirling as an independent

contractor, to carry out the necessary research and prepare a report for the Council’s

consideration.

[34] On 8 July 2011, Ms Collins referred her project brief to three of the Council

members for their consideration and comment. Feedback was provided by one of

the Council members and the brief was approved.

[35] On 12 July 2011, the Council engaged Mr Stirling to undertake a review of

the Takamore wahi tapu area and the proposed extension. Mr Stirling was sent the

project brief. His research was to include an assessment of the existing 1995

Takamore wahi tapu area registration and the sources of information for that which

were contained in three volumes. He was asked to complete a draft report for the

Council by 20 July 2011. Mr Stirling requested any other documentation included

with the Takamore Trustees’ request for an extension of the area and was advised

there was none.

[36] Ms Collins sent a formal Application for Review of a Registration for a

Historic Place/Area to the Trustees on 14 July 2011 for completion.7 The Trustees

returned the completed form on 20 July 2011. It expressly referred to a block of land

with some glasshouses owned by the NZTA and to the Maketu Burial Tree but did

not refer to land owned by the plaintiff. Nor did the form contain a legal description

7 The Trustees’ application was the first time a review of a wahi tapu area had been requested and

there was no “prescribed form” of application for review at that time.

of any land that might be included in an extension of the wahi tapu area. The

grounds for review, as listed in the completed application form, were as follows:

(1) The current boundaries of the registered wahi tapu are inaccurate in

that they follow cadastral boundaries and do not accord with the

boundaries of the wahi tapu as provided in the oral tradition of the

kaitiaki.

(2) One complete title block within the wahi tapu is excluded from the

registered wahi tapu boundary, being locally referred to as “the

greenhouse block” now owned by NZTA.

(3) The registered wahi tapu does not include the Maketu Tree, which is

an important part of the cultural heritage landscape and the wahi tapu

as known by the kaitiaki.

[37] As there was no specific or legal description of land in the application

Mr Stirling contacted the Trustees’ solicitor to clarify the area of the proposed

extension. Following that he met with Ben Ngaia and another of the Trustees on

16 July 2011 to discuss the extent of the land to be included in the review. The

meeting was “on site” and was of about two hours duration, during which the party

walked over some of the land in question although not over the plaintiff’s land. The

extent of the area to be included in the review was discussed and Mr Ngaia outlined

to Mr Stirling the traditional history of the area and identified landscape features and

locations associated with it. Mr Stirling included and referenced this information for

inclusion in his report.

[38] On 21 July 2011, Mr Stirling produced his report in draft.

[39] On 25 July 2011, the Technical Review Committee of the Historic Places

Trust, comprising Mr Teira and other members of the Trust, as well as Ms Collins,

met to discuss the proposal to review the registration of the Takamore wahi tapu area

and Mr Stirling’s draft report.

[40] As a result of their discussions it was determined that further information was

required and Mr Stirling should be asked to provide more information on how the

boundaries for the Takamore wahi tapu area were to be determined. The Committee

also suggested that it would be useful to include a map in his report showing the

wahi tapu area boundaries at the date of registration in 1995 and the proposed

extended boundaries.

[41] Mr Stirling was contacted by Ms Collins and asked to comment on the issues

identified by the Committee.

[42] On 28 July 2011, Mr Stirling responded to the Committee’s comments and

made some minor amendments to his draft report.

[43] On 2 August 2011, a meeting of the Historic Places Trust Lead Team was

held. It comprised Mr Teira and other members of the Lead Team. This was a wider

group of persons than those who had participated in the Technical Review

Committee meeting of 25 July. Mr Teira’s evidence is that the proposal “to initiate a

review of registration of the Takamore wahi tapu area, the response from Mr Stirling

and the progress that had been made by the Trust in this regard” was considered at

the meeting.

[44] A formal discussion paper had been prepared for the meeting. The

introduction to the paper highlighted:

a. that the cultural and historic values of this registered wahi tapu area

are again at risk following the announcement in June 2011 that the

preferred route for the State Highway 1 Kapiti Expressway, a Central

Government prioritised Road of National Significance (RoNs), will

impinge on the wahi tapu area;

b. as a consequence of this request the statutory obligation for time to

completion and consultation under Section 37 of the Historic Places

Act (1993);

c. the need for clarification that NZHPT did not initiate this review and

to separate out NZHPT’s advocacy germane to the decision on

roading options.

[45] The paper recorded that the Council would continue to be a party to the

process relating to the legal obligations of s 33 of the Act, which requires

applications for consent to local authority, in respect of a wahi tapu area, to be

referred to the Council for consultation with interested parties and possible

recommendation.

[46] The paper also recorded that the Technical Review Committee had

considered Mr Stirling’s draft review report on 25 July 2011, and:

22. ... were satisfied that the case for the significance of the Takamore

wahi tapu area and the values associated with the area has been

made. Following on from this TRC noted that the remaining

Takamore area is a small remnant of a much wider cultural

landscape and requested further explanation and clarification of the

proposed boundaries within the report for consideration.

23. TRC has approved that the proposal to initiate a review of

registration go to the Maori Heritage Council. It is intended that this

proceed to the August Council meeting and include the further

clarification TRC requested. If the proposal is agreed by Council it

is suggested that a consultation process on the review of registration

is developed in discussion with Council.

[47] Referring again to the Historic Places Trust’s obligations under s 33 of the

Act, the paper then advised:

24. In a similar time period NZHPT continues to engage with the NZTA

Alliance project team through the detailed design phase through to

consent lodgement in 2012. During this time there must be an

appropriate degree of separation of regulatory and statutory roles.

[48] The paper concluded as follows:

35. Following further clarification of the proposed enlarged boundaries

the report will be further considered by TRC for approval to proceed

to the Maori Heritage Council.

36. If initiation of a review is agreed by Maori Heritage Council then a

formal consultation process with stakeholders should be developed

and implemented, as informed by Council.

37. NZHPT respects the MOU in place with NZTA and commitments to

other stakeholders, especially the Takamore Trustees and Kapiti

Coast District Council, to continue dialogue on roading options in

good faith.

[49] On 5 August 2011, Mr Stirling provided his report. In it he set out in detail

which land was to be assessed for an extension of registration. This included the

plaintiff’s land. A detailed review of the history of the area proposed was also

included in the report. In brief summary, this outlined how Te Ati Awa had migrated

to the land in around 1820-30 and had battled Ngati Raukawa for land ownership.

This led to the Battle of Te Kuititanga in 1839. Some of the dead from that battle

were said to have fallen in the Ngahuruhuru cultivation (within the proposed

Takamore wahi tapu area) and were buried there. This rendered that tract of land

tapu. The same land is part of the surrounding cultural landscape and contains many

pa sites to the north, east and west. In 1840, Te Ata Awa left the area but some of the

iwi later returned in 1848-49 and the Takamore urupā was then subject to more

extensive use. The iwi moved on again in the 1890s, but left behind taonga buried in

the urupā. The southern part of the urupā was marked by the Maketu Burial Tree.

Mr Stirling recorded that not only had the original registration of the area as wahi

tapu not included the Maketu Burial Tree, neither had it included other significant

areas, including the Ngahuruhuru cultivation where kōiwi (human bones) had

recently been located during the NZTA archaeological excavations. Mr Stirling

referred to the evidence Robert Ngaia (the then Chairman of the Trustees) had given

to the Environment Court in the 2002-2004 court proceedings that “many of our

dead lie in their lands” (a reference to the plaintiff’s land including part of the

Ngahuruhuru cultivation grounds) and to the recent opinion of the NZTA

archaeologist, that further unrecorded sites will be located if the area is more

thoroughly excavated. There was also reference to another significant wahi tapu

omitted from the original registration, being two punawai (sacred springs) situated

next to the glasshouses on the land owned by the NZTA.

[50] Importantly, in the context of this judicial review proceeding, Mr Stirling

expressly identified the plaintiff’s land and the other potentially affected land in his

report. The legal description of the plaintiff’s land (highlighted below in yellow), as

assessed for extended registration, was included in the following part of Mr Stirling’s

report:

2. IDENTIFICATION

2.1 Name of Wahi Tapu Area

Name: Takamore

2.2 Location Information

Address

Flaxmere Street, Gates Road, Weggery Drive, Waikanae

River, Kauri Road and Puriri Road

WAIKANAE BEACH

Iwi/hapu: Otaraua hapu of Te Ati Awa ki Whakarongotai

Local Authority: Kapiti Coast District Council

NZAA Site Record Info: NZAA R26/273 midden; R26/274

midden, R26/275 midden; R26/276 midden; R26/277

midden; R26/278 hearth; R26/279 hearth; R26/280 hearths;

R26/372 midden; R26/454 urupa (Maketu grave, Maketu

tree, and associated graves)

2.3 Current Legal Description

Lot 1 DP88064 (CT 495921), Pt Ngarara West A24 B (SO

20313), Lots 1, 2, 6, 8, 9, 10 (CTs WN53A/520,

WN53A/521, WN53A/522, WN53A/523, WN53A/524,

WN53A/525. Lots 3, 4, 5, 7 (CTs WN53A/527,

WN53A/528, WN53A/529, WN53A/530), Lots 8-10 DP

85160, Lots 3, 4 (CT 477307, WN56A/972), Ngarara West A

Sec 24C Blk (CT 449350). Lot 1 DP 17617 (CT471722), Pt

Lot 1 DP 24354, Lot 1 DP 27661, Pt Lot 1 DP 57749, Lots

1-2 DP 69476 (CT WN39D/372), Sec 1-2, 6-17 (CT

475586), Lot 3 DP 52593 (CT 81087) Wellington Land

District.

2.4 Physical Extent of Area Assessed for Registration

Lot 1 DP88064 (CT 495921), Pt Ngarara West A24 B (SO

20313), Lots 1, 2, 6, 8, 9, 10 (CTs WN53A/520,

WN53A/521, WN53A/522, WN53A/523, WN53A/524,

WN53A/525. Lots 3, 4, 5, 7 (CTs WN53A/527,

WN53A/528, WN53A/529, WN53A/530), Lots 8-10 DP

85160, Lots 3, 4 (CT 477307, WN56A/972), Ngarara West A

Sec 24C Blk (CT 449350). Lot 1 DP 17617 (CT471722), Pt

Lot 1 DP 24354, Lot 1 DP 27661, Pt Lot 1 DP 57749, Lots

1-2 DP 69476 (CT WN39D/372), Sec 1-2, 6-17 (CT

475586), Pt Lot 3 DP 52593 (CT 81087) Wellington Land

District. The wahi tapu area contains sites of cultural and

historical importance, including wahi tapu, and interrelated

cultural features such as the Takamore urupa, the Maketu

tree and grave, whare kohanga, punawai, kōiwi,

Ngahuruhuru area, and a range of archaeological sites.

2.5 Identification Eligibility

There is sufficient information included in this report to

identify this place.

[51] A map showing the boundaries of the proposed extended wahi tapu area was

also included in Mr Stirling’s report. This showed, by way of comparison, the

boundaries of the original 1995 registered wahi tapu area; the larger area of land

registered by Kapiti Coast District Council as wahi tapu (see [26] above); and the

extension proposed by the review. The map showing the extent of the proposed

registration contained the legal description of the plaintiff’s land (as in [50] above).

[52] Aerial maps were also included in Mr Stirling’s report, showing features and

boundaries. Also, included were search copies of the certificates of title of the land

proposed to be affected, including a certificate of title for the plaintiff’s land. There

were also various visual aids to historical information about the area attached to the

report, including New Zealand Archaeological Association pictorial records of

archaeological sites within and adjacent to the Takamore wahi tapu area and the

proposed extension.

[53] In an affidavit filed in this review proceeding, Mr Stirling set out how he had

determined the area to be included in the review and had incorporated this into a map

showing the boundaries of the proposed extended wahi tapu area. He described the

research upon which he had relied, in addition to the important oral history and

traditions relating to the Takamore urupā and the adjacent land as given by “those

people most familiar with them; the tangata whenua”. His research had included

examining and reviewing a number of primary and secondary sources in order to

determine whether there was sufficient evidence to support the boundaries of the

Takamore wahi tapu area being extended for the purpose of protecting and

conserving Māori culture, taonga, and traditions within the Takamore ancestral lands.

Of his researches, Mr Stirling said:

4.3 ... The focus of the original registration was on the area associated

with the Takamore urupa, which is only a small part of the Takamore

wahi tapu area.

...

5.3 It was important to determine whether there was sufficient evidence to

support the need for the boundaries of the Takamore wahi tapu area to

be extended to protect and conserve Maori culture, taonga, and

traditions within their ancestral lands.

5.4 This requires knowledge of the history of this area, historical research

sources, and a familiarity with Maori culture. The skills and

knowledge required to undertake the assessment are within my area of

expertise.

5.5 As part of my review of the Takamore wahi tapu area, I examined a

number of primary and secondary sources. The primary sources

included Native Land Court minute books, Maori land plans, the maps

and manuscripts of the early ethnographer Adkin, recorded

archaeological sites, and the relating of oral tradition in recent times

by the Takamore people as part of the Environment and High Court

proceedings. Secondary sources included local histories (notably that

of Carkeek), Te Ara, and a range of expert evidence and

archaeological reports relating to the Waikanae and Takamore area

that have emerged as a result of statutory requirements linked to land

development or proposals for development affecting the area from

1995 to the present.

...

6.5 From the meeting with Ben Ngaia and my research, I determined that

the area to be included in the review was [as set out in the draft

report].

6.6 I included a map in my draft report which showed the boundaries of

the proposed extended wahi tapu area.

6.7 It was apparent to me from the research I had done that the Takamore

wahi tapu area was larger than the area registered in 1995. The focus

of the previous registration was on the surveyed urupa and the wahi

tapu adjacent to it. Residential development west of the surveyed

urupa prompted the registering the wahi tapu area. It appears that the

titles subject to development at that time influenced the shape of the

wahi tapu area that was registered in 1995.

6.8 Extending the wahi tapu area raised the issue of how to define the

limits of the extended area. Research since 1995, including that

undertaken for my report, shows the wahi tapu area extends to the

south and southwest of the 1995 area. This includes the Maketu

grave, an urupa associated with it, and Ngahuruhuru, a former

cultivation area rendered tapu (sacred) when some of those who died

during fighting in the area in 1839 were buried where they fell, on

Ngahuruhuru.

6.9 I considered whether the wahi tapu area should be extended beyond

these limits. I found that it is not easy to define a rigid boundary for

Ngahuruhuru in the west and southwest of the wahi tapu area. In

addition, there are significant sites to the south, east, and north of the

wahi tapu area that are broadly associated with the wahi tapu area.

These include pa sites, village sites, and other occupation sites. I did

not recommend extending the wahi tapu area to encompass these

areas.

6.10 In cultural terms, the ways in which the land has been traditionally

managed and used helped determine the limits of the wahi tapu area.

Lands to the south (across the Waikanae River), to east (the site of

Tukurakau village), and the north (Taewapirau pa) are traditionally the

responsibility of customary land owners other than those represented

by the Takamore Trustees. Some or all of these sites may be found to

constitute wahi tapu or wahi tapu areas in their own right, but they

will be wahi tapu areas distinct from the Takamore wahi tapu area.

[54] The above extracts are but a few passages from Mr Stirling’s report.

[55] On 25 August 2011, a Māori Heritage Council meeting was held. The

meeting was chaired by Sir Tumu Te Heuheu and attended by other members of the

Council and Board members of the Historic Places Trust. The meeting was

convened to consider a paper circulated in advance by Ms Collins entitled “Proposal

to Initiate Review”. Mr Teira’s evidence about the meeting and its outcome, which

was to recommend that the review sought by the Takamore Trustees be initiated and

notified, was as follows:

8.3 The Council discussed the application to extend the boundaries of the

Takamore wahi tapu area. The Council also discussed the issue of

arbitrary lines for the wahi tapu area boundary and the need to create

‘softer lines’ and access to the urupa via a proposed over-bridge. The

Council wanted to be sure that the boundaries included any known

burials and wahi tapu features within the registered area. The Council

also considered access to the Takamore cemetery if the proposed

expressway was to cut off the roadway to the cemetery.

8.4 It concluded that the application was valid under section 37(2) of the

Act and recommended that the review was initiated and approved the

public notification of the review.

[56] Following the meeting, Ms Collins emailed Mr Ngaia and the Takamore

Trustees’ solicitor to advise that the Council had approved notification of the review

and that public notices would be sent out and submissions invited. Formal

notification of a copy of Mr Stirling’s report would also be sent to the Takamore

Trustees and to other interested parties that same week.

[57] On 5 September 2011, Mr Teira sent a letter of notification to the plaintiff,

enclosing a copy of Mr Stirling’s report, and informing it that the Council had

received an application from the Takamore Trustees requesting a review of the

registration of the wahi tapu area and that the plaintiff’s land was to be included in

this review, as Mr Stirling had identified Māori values associated with the plaintiff’s

land. The plaintiff was advised that it had 20 working days in which to provide

written submissions in response but that this period could be extended. In the event,

the plaintiff sought an extension of the period to 40 working days, which was

approved. Subsequently, the 40 day extension for submissions was extended to all

interested parties, as a matter of fairness.

[58] On 4 October 2011, the Trustees advised the Council that they accepted

Mr Stirling’s report as accurate. They also provided a Cultural Impact Assessment, a

document that the Trustees had been preparing since the Court proceedings in

2002-2004 in relation to the potential impacts of the proposed expressway route on

the Takamore wahi tapu area. This Cultural Impact Assessment had not, however,

been relied on by Mr Stirling in preparing his report and nor was it part of the

Council’s consideration.

[59] On 11 October 2011, the plaintiff requested from the Council an “assessment

of [the] evidence” submitted by the Trustees in support of their application. As there

had been no evidence submitted by the Trustees, none was supplied.

[60] On 28 October 2011, the plaintiff renewed its request and also made the same

request direct to the Trustees. The Trustees provided the plaintiff with a copy of

their Cultural Impact Assessment.

[61] A spreadsheet listing all of the registered wahi tapu sites within Porirua,

Horowhenua and Kapiti Coast was sent to the plaintiff by Ms Collins at its request.

The plaintiff also sought a copy of the original 1995 registration application for

registration by the Trustees, submitted by Robert Ngaia, which was provided to them

on 31 October 2011.

[62] Mr Teira’s evidence is that at no stage was he aware of receiving a request,

either orally or in writing, from the plaintiff, seeking a copy of the Trustees’

application for a review of the Takamore wahi tapu boundaries (the application form

referred to in [36] above).

[63] On 4 November 2011, the plaintiff sent in its submissions opposing the

extension of the wahi tapu area and expressing a number of concerns and asking to

be heard. Amongst the concerns expressed were that the plaintiff’s land value and its

ability to exercise its rights over the property would be diminished; and that the

historical evidence relied upon was unreliable and lacked clarity as to what land is

wahi tapu. Mr Millard, on behalf of the plaintiff, set out in summarised form the

following reasons for its opposition:

(a) neither the notice nor the Stirling Report identified the exact location or nature of the wahi tapu within the extended area and, in particular,

within the plaintiff’s land and none was known;

(b) it was not clear how the boundaries of the historical Ngarara West A24B Block related to the present day boundaries and the Maori

Heritage Council had not responded to a request from the plaintiff for

clarification;

(c) no consideration had been given to the effect of registration on the plaintiff and its activities;

(d) the use of the term “cultural landscape” to justify extended registration was too broad;

(e) the location of the site of the battle of Kuititanga in 1839 and the Ngahuruhuru cultivation (where it was thought possible that some of

the invading warriors may have been killed and left – but not bodies

of the tangata whenua which were collected) was not as set out in the

Stirling Report. The plaintiff relied on evidence in the Percy Smith

book “history and Traditions of the Maoris of the West Coast North

Island of New Zealand, Prior to 1840” first published in 1910;

(f) based on a Waitangi Tribunal Research Document, it appeared that the Otaraua hapu and their descendants (from whom the second

defendants are drawn) were not associated with what was the now

plaintiff’s land (namely Ngarara West 15, 16 and 17);

(g) the plaintiff’s own experience in carrying out development of its site, involving the then recent installation of a substantial water

infrastructure throughout the camp, had required extensive

excavations during which no kōiwi or other archaeological sites had

been found. Under the conditions for such work, the plaintiff was

required to (and did) notify the relevant iwi organisation, specified to

be Runanga o Te Ati Awa ki Whakeirongotai, and invited them to

inspect the site while the work was being carried out;

(h) registration would decrease the value of the plaintiff’s land;

(i) the proposal appeared discriminatory given there were other sites of extensive occupation by Maori as evidenced by the location of

wharenui and other places of battles that were not the subject of wahi

tapu registration. The plaintiff submission was that more should be

required than a belief that a site may be the site of wahi tapu before

registration;

(j) the proposal appeared to be discriminatory in that the plaintiff’s land was perceived to be largely unoccupied or rural;

(k) the plaintiff had asked for a copy of the applicant’s evidence to the HPT and in apparent response had received the Cultural Impact

Assessment done by Ben Ngaia. The plaintiff was critical of that

Assessment.

[64] At the Council’s request, Mr Stirling prepared a memorandum on

16 November 2011 for the Council to respond to some of the plaintiff’s concerns.

[65] On 17 November 2011, the Council sent a letter of response to the plaintiff,

incorporating some of Mr Stirling’s comments. The Council advised the plaintiff

there was no provision for oral submissions. However, they would consider further

written submissions. Also, that registration of itself did not impact on the rights of a

property owner and that a historical reference source,8 upon which the plaintiff was

relying in its submission, had not formed part of Mr Stirling’s report. This letter was

not received by the plaintiff until 8 December 2011. The plaintiff replied to it on

12 December 2011.

[66] Although the plaintiff asserts there was no chance for an oral hearing or visit

by the Council to the plaintiff’s land before the Council confirmed the proposed

extension of the wahi tapu boundaries, Mr Teira’s evidence is that he made a visit to

the plaintiff at its property on 25 November 2011. He said he visited in response to

the plaintiff’s invitation for someone from the Council to come and visit the

property. He went in his role as Kaihautū. There he met with Anna Carter, the

business manager of the plaintiff, who took him on a tour of the property. During the

meeting he discussed with Ms Carter NZTA’s proposed expressway, local Māori

history, the boundaries of the proposed extended wahi tapu area, future aspirations of

the plaintiff for the area, the relationship with the Trustees and the registration

processes of the Trust and Council. There was also discussion about the Battle of

Te Kuititanga and the lack of certainty as to where exactly that battle had taken

place.

[67] Following the receipt of submissions from interested persons, including the

plaintiff, Ms Collins prepared a paper entitled Confirmation of Registration which

she circulated to Council members.

[68] I note here that the plaintiff was not the only submitter opposing the proposed

extension of the wahi tapu boundaries; nor the only submitter challenging the

8 Percy Smith History and traditions of the Maoris of the West Coast of the North Island of

New Zealand, Prior to 1840 (Polynesian Society, New Plymouth, 1910).

correctness of all material in the review report; nor the only submitter seeking to be

heard on its submission. The paper referred to the implications of registration and to

the consultations that had taken place with three of the submitters. In fact, four of

the submitters requested the opportunity to make oral submissions to the Council and

Mr Myer, on behalf of the Takamore Trustees, requested the right to respond to any

submissions filed by others. It included a spreadsheet listing all submitters and

noting the substance of their submissions and whether they opposed a review of the

registration or not. The plaintiff’s further submission of 12 December, although not

listed on the spreadsheet, had been received by Ms Collins and she placed it before

the Council for its consideration at the meeting.

[69] The recommendation in the paper was for the Council to consider the issues

raised in the submissions received, to confirm the registration proposals and to

recommend to the territorial authority appropriate measures to assist in the

conservation and protection of the wahi tapu area. All submissions and

correspondence from submitters or their lawyers were appended to the paper.

[70] On 14 December 2011, the Council met to consider whether it should

confirm the registration of Takamore (Flaxmere Street, Gates Road, Weggery Drive,

Waikanae River, Kauri Road, Puriri Road and Waikanae Beach) as a wahi tapu area.

Ms Collins was in attendance at the meeting, as was Mr Teira.

[71] Mr Teira’s evidence as to the conduct and outcome of the Council meeting

was as follows:

10.1 ... Those members of the Council present at the meeting included

Sir Tumu te Heuheu (Chair of the Council and Board member),

Ms Naida Glavich (also a Board member), Mr Manos Nathan, Mr Che

Wilson, Mr Gerard O’Regan, and Mr Ian Athfield (also a Board

Member). Also present at the meeting were Mr Bruce Chapman,

Ms Suzie Collins, Ms Anna Glassie, Mr Rei Kohere, Mr Dean

Whiting, and myself.

...

10.3 The Council reviewed and considered all submissions that the Trust

had received. It noted that the following consultations had taken

place:

a I had met with Ms Carter on site and discussed the proposed

review.

b The Trust had met with Mr Watson and Mr Ngaia to discuss the

review.

c The Trust had met with the NZTA to discuss Mr Stirling’s

report and clarify any concerns.

10.4 The Council had a lengthy discussion regarding the report received

from Mr Stirling and the proposed boundaries of the Takamore wahi

tapu area. A concern was raised regarding the extent of the

registration boundary and the resistance that could be received with

strict cadastral lines that follow a legal boundary as opposed to softer

edges. In response to this concern, it was noted that under the Act all

boundaries have to be identified by their legal title, and experience in

the past with some old registration boundaries that were hand drawn

on geographical maps proved difficult and affecting scheduling and

protection.

10.5 The Council discussed the submissions received by WCHP in detail

and considered WCHP submissions that the proposed extension of the

Takamore wahi tapu area would diminish its land value including its

ability to exercise right of ownership, occupation, and property

development The Council did not accept this comment as valid and

noted that registration did not in itself diminish property rights.

10.6 The Council confirmed that the boundaries of the registered Takamore

wahi tapu area were to be extended to Takamore, Flaxmere Street,

Gates Road, Weggery Drive, Waikanae River, Kauri Road, and Puriri

Road. It also recommended that the Kapiti Coast District Council

update their Council Operative 1999 Plan to reflect the amended area

boundary.

10.7 On 12 January, I notified all interested parties, including [the

plaintiff], that the Council had confirmed the review of the Takamore

wahi tapu area.

[72] The Takamore wahi tapu area now includes:

(a) the Maketu tree which is located on section 12 Survey Office Plan

407250 Wellington Land District (CT475586) owned by the Kapiti

Coast District Council;

(b) all of the plaintiff’s land – Pt Lot 1 DP 24354, Pt Lot 1 DP 57749, Lot 1

DP 69476, Lot 1 DP 27661, and Lot 2 DP 69476;

(c) land belonging to Kapiti Coast District Council; and

(d) the area to the south-west of the Takamore wahi tapu area in which

kōiwi have been located.

The Decision

[73] The decision of the Council, as recorded in the minutes of the meeting on

14 December 2011, was as follows:

Takamore

It was resolved that

(i) The Māori Heritage Council having considered the issues raised in

the submissions received the response to those issues provided by

NZHPT management the registration of the following:

Takamore, Flaxmere Street, Gates Road, Weggery Drive,

Waikanae River, Kauri Road and Puriri Road, WAIKANAE

BEACH (Record no.7263) as a wahi tapu area be confirmed.

(ii) The following recommendation be made to the territorial authority:

To ensure the long-term conservation for Takamore wahi tapu

area, that the Kapiti Coast District Council update their Kapiti

District Council Operative 1999 Plan to reflect the amended

Takamore Wahi Tapu Area boundary.

Resolution 11/61

Amenability to review

[74] The parties are agreed that the Council’s decision to extend the wahi tapu

area was a statutory power of decision and thus amenable to judicial review under

the Judicature Amendment Act 1972. However, the justiciability of the decision in

question is not simply to be determined by agreement between the parties. A number

of aspects require consideration. Amongst these are the specialist composition of the

decision-making body (the Council), the nature and purpose of its functions, the

effect of a decision to confirm a variation to registration, and whether such a

decision is determinative of anything. In terms of the latter, there is the

consequential question of whether the plaintiff’s challenge is premature.

Membership of the Council

[75] As is evident, the Council membership comprises persons appointed for their

knowledge of te ao Māori (Māori worldview) and tikanga Māori (Māori protocol and

culture) and other members appointed or elected for their specialist skills, knowledge

or cultural background appropriate to the functions and powers of the Council.

[76] The nature and composition of the Council and the purpose to which its

decisions are directed are also relevant to the nature, purpose and effect of its

decisions. The members are not appointed for their experience or expertise in

litigation or adjudication. They come from varied but relevant backgrounds.

[77] The chair of the Council, Sir Tumu Te Heuheu, is the paramount chief of

Ngāti Tuwharetoa. Dr Apirana Mahuika is the chairman of Te Runanga O Ngāti

Porou and has been recognised for his commitment to the preservation and

protection of historic places. Manos Nathan, a Council member, is a practising artist

and educator in fine art in the tertiary sector. He has also been involved in

researching and presenting evidence to the Waitangi Tribunal, including in relation to

wahi tapu issues. Another member, Mr Ian Athfield, was elected by the other

members for his architectural expertise. These examples illustrate the ambit of

experience and expertise deemed necessary for the discharge of the Council’s

functions, including its decision-making function.

The effects of registration?

[78] One of the grounds of review advanced by the plaintiff is that the Council

erred in law by treating the plaintiff’s property rights as irrelevant. In this regard the

plaintiff says the Council failed to “genuinely” consider the impact of registration on

the value of the plaintiff’s land and on the diminution of its rights in connection with

the land. This particular ground begs an analysis of what, if any, the effects and/or

consequences of registration of a wahi tapu area under the Act are? Therefore, what,

if anything, is determined by registration?

[79] The starting point is to revisit the purpose of registration under the Act. The

primary object of the Act is to “promote” the identification, protection, preservation,

and conservation of the historical and cultural heritage of New Zealand and in doing

so to recognise the relationship of Māori and their culture and traditions with their

ancestral lands, water, sites, wahi tapu and other taonga. The purpose and principles

of the Act, as set out in [14] above, are directed to this outcome.

[80] The purpose of registration is to identify and inform owners, members of the

public, community organisations, government agencies and local authorities about

significant heritage value; and, in terms of s 22(2)(c) of the Act, to “assist ... wahi

tapu and wahi tapu areas to be protected under the Resource Management Act 1991”.

[81] However, the signification of heritage value through registration alone does

not, of itself, restrict land use or otherwise impact on the legal rights of property

owners. It does not impose any regulation on land use. As Mr Wilson submitted,

registration simply confirms that there are wahi tapu values associated with the land:

thus, it is a signifier of heritage value.

[82] Mr Millard contended that the Act and the RMA make it clear that

registration of a wahi tapu area “has significant consequences for the owners of

private lands which are to be covered by the registered area”. He argued that, for

owners who desire to [re-]develop their lands, the consequences of these statutory

restrictions, consequent upon registration of wahi tapu areas, are “severe”.

[83] It is correct that there are certain responsibilities and outcomes that flow as a

result of registration of an area as wahi tapu. These are reflected, for instance, in

ss 32D, 33 and 34 of the Act and under various provisions of the RMA.

[84] For instance, under s 32D of the Act, district and regional councils must have

particular regard to any recommendations the Council may make as to appropriate

measures that should be taken to assist in the conservation and protection of a

registered wahi tapu area. Under the RMA, territorial authorities must have regard

to the register in preparing their district plans and regional policy statements.9

9 Resource Management Act 1991, ss 61(2)(c)(iia), 66(2)(c)(iia) and 74(2)(b)(iia).

[85] Section 33 of the Act provides that where the Trust is advised by a local

authority of an application for a resource consent in respect of any wahi tapu area; or

is considering an application or proposal that affects any wahi tapu area; or proposes

to take any action in respect of any wahi tapu area, the Trust must refer the matter to

the Council. The Council is then required to consult the local territorial authority

and regional council, relevant iwi or other Māori groups and the proposers of the

wahi tapu area, before taking any action, and must advise the Trust of any comment

or recommendation it wishes to make on any such application or proposal referred to

it. This may cause a delay of up to three months in the resource consent process.

[86] Section 34 requires the Trust to notify a territorial authority of the registration

of a wahi tapu area, which must then be noted on a LIM report.10

This constitutes

advice that there are or may be restrictions as to how the land or part of the land may

be used.

[87] Section 5 of the Building Act 2004 similarly requires such information to be

included in any project information memorandum (PIM).11

[88] The above provisions, however, are no more than vehicles for notifying or

recording heritage value. They do not of themselves create legal rights, nor do they

impose legal prohibitions on the subject land.

[89] The plaintiff adduced evidence that a wahi tapu registration could have a 20

per cent impact or more on the value of land. The Council adduced evidence

indicating something in the region of a 5 per cent impact. Without traversing the

competing contentions in these valuations, what the calculations do indicate is

something of a chilling effect as a consequence of heritage value and thus a practical

as opposed to legal consequence.

[90] The central purpose of the registration provisions, however, is confined to

preservation and conservation, as per s 22(2)(c) of the Act, in which the operative

10

Local Government Official Information and Meetings Act 1987, s 44A. 11

A project information memorandum under s 35(1)(b) of the Building Act 2004 and a land

information memorandum under s 44A(2)(g) of the Local Government Official Information and

Meetings Act 1987.

word “assist” underscores the fact that registration alone is no more than a signifier

of heritage value.

[91] Legal protection will only occur if and when a wahi tapu area becomes

subject to a heritage order under the RMA. A heritage order is defined in s 187 of

the RMA as “a provision made in a district plan to give effect to a requirement made

by a heritage protection authority”. The jurisdiction for the making such orders lies

with the territorial authorities and the process is governed by the RMA.

[92] The heritage order process is triggered by s 5 in Part 1 of the Act, which

provides for the Minister or the Historic Places Trust to have a discretion to give

notice of a requirement to a territorial authority for a heritage order to protect a wahi

tapu area and surrounding lands, “in accordance with” the provisions of the RMA.

If such a notice is given under s 5 of the Act, the territorial authority must decide

whether to issue a notice of requirement within its district.

[93] There is no right of appeal from an exercise of the s 5 discretion by the

Minister or the Trust to require a heritage order under the RMA. In contrast there are

express rights of appeal to the Environment Court in relation to other decisions taken

under Part 1 of the Act (relating to archaeological sites).

[94] Under s 189(1) of the RMA, the purpose of a heritage order is to protect:

(a) Any place of special interest, character, intrinsic or amenity value or visual appeal, or of special significance to the tangata whenua for

spiritual, cultural, or historical reasons; and

(b) Such area of land (if any) surrounding that place as is reasonably necessary for the purpose of ensuring the protection and reasonable

enjoyment of that place.

[95] Under s 189A of the RMA, if a territorial authority decides to issue a notice

of requirement for a heritage order within its district for the purpose described in

s 189(1)(a) and (b) above, the territorial authority must decide whether to notify the

requirement. If the requirement is publicly notified, any person may make a

submission about it to the territorial authority.

[96] There are various procedural requirements stipulated in s 191(1), (2) and (3)

of the RMA for a territorial authority considering a requirement for a heritage order.

Section 191(1) directs the territorial authority to have regard to a number of matters,

including “all submissions”, and to have particular regard to:

(a) whether the place merits protection; and

(b) whether the requirement is reasonably necessary for protecting the place to which the requirement relates:

(c) whether the inclusion in the requirement of any area of land surrounding the place is necessary for the purpose of ensuring the

protection and reasonable enjoyment of the place;

...

[97] After giving due consideration to a requirement under s 189, a territorial

authority has discretion to recommend that the requirement be confirmed, with or

without modifications; or be withdrawn.

[98] Significantly, in terms of powers, if a territorial authority recommends

confirmation of a heritage order, the territorial authority may also recommend the

imposition of:12

(a) a condition that the heritage protection authority reimburse the

owner of the place for any additional costs of upkeep of the place

required as a result of the making of the heritage order:

(b) such other conditions as the territorial authority considers

appropriate.

[99] Significantly, under s 191(4) a territorial authority is expressly required to

give reasons for a recommendation made under s 191(2). This is in contrast to the

absence of any such requirement in the Act, when a decision to register a wahi tapu

area or to confirm a variation of a wahi tapu area is made.

[100] The effect of a heritage order is set out in s 193 of the RMA. As is evident, it

has tangible, legal consequences for affected property owners:

12

Resource Management Act 1991, s 191(3).

193 Effect of heritage order

Where a heritage order is included in a district plan then, regardless of the

provisions of any plan or resource consent, no person may, without the prior

written consent of the relevant heritage protection authority named in the

plan in respect of the order, do anything including –

(a) Undertaking any use of land; and

(b) Subdividing any land; and

(c) Changing the character, intensity, or scale of the use of any land –

[101] Significantly also, for judicial review purposes, s 195 of the RMA provides a

right of appeal to:

(1) Any person who—

(a) Proposes to do anything in relation to land that is subject to a

heritage order or requirement for a purpose which, but for the

heritage order or requirement, would be lawful; and

(b) Has been refused consent to undertake that use by a heritage

protection authority under section 193 or section 194, or has

been granted such consent subject to conditions—

may appeal to the Environment Court against the refusal or the

conditions.

[102] Section 195(2) specifies what a notice of appeal under the section should

contain and the process.

[103] Section 195(3) provides for the approach to be taken by the Environment

Court in considering an appeal relating to land subject to a heritage order, as follows:

(3) In considering an appeal under this section, the Environment Court

shall have regard to—

(a) Whether the decision appealed against has caused or is likely to

cause serious hardship to the appellant; and

(b) Whether the decision appealed against would render the land

which is subject to the heritage order or requirement incapable

of reasonable use; and

(c) The extent to which the decision may be modified without

wholly or partly nullifying the effect of the requirement or

heritage order—

and may confirm or reverse the decision appealed against or modify

the decision in such manner as the Environment Court thinks fit.

[104] Significantly again, under ss 295 and 296 of the RMA, decisions of the

Environment Court are final and there is no right of review under Part 1 of the

Judicature Amendment Act 1972, unless any right of appeal or reference to inquiry

has first been exercised and the Environment Court has made a decision.

Discussion

[105] The point of the above analysis of the relevant legislative provisions is to

establish two matters: first whether the signification of heritage value through

registration under the Act affects any landholder rights or liabilities; and, if so,

whether it is a final determination of those rights or liabilities?

[106] Whilst a decision by the Council to register or confirm an area as wahi tapu is

the exercise of a statutory power of decision, it does not determine anything. This is

in contrast to the effect of a heritage order under the RMA. The only effect of the

Council’s decision in this case was to put on public record in the register its

considered and expert opinion that a greater area of land in the Takamore wahi tapu

area had been identified and notified as possessing "cultural, historical, ... spiritual,

traditional significance or value".13

[107] At most, in terms of legal impact on the plaintiff’s land, the decision might

trigger the exercise of discretion under s 5 of the Act for notification by the Minister

or the Historic Places Trust to the Kapiti Coast District Council of a requirement for

a heritage order under the RMA. That is an as yet unknown future contingency. In

the event that it occurs, all of the procedural rights provided under the RMA, to

make submissions and to be given reasons for any recommendation by the territorial

authority, will be available to the plaintiff. In addition there is the possibility of

reimbursement should there be any cost of upkeep in maintaining any site. The

plaintiff will also have the right to appeal to the Environment Court in the event of a

refusal by the territorial authority to consent to a particular land use.

13

Historic Places Act 1993, s 23(1).

Grounds of review

[108] I turn now to summarise each of the six grounds of review advanced by the

plaintiff.

First ground of review

[109] First, Mr Millard argued that the Council had erred in law, by breaching the

requirements of ss 32 and 37, because the application for extension (the letter of

request by the Trustees’ solicitor dated 27 June 2011 followed by the formal

application of 20 July 2011) had not contained any legal description of the general

area of the land affected; nor had it specifically tied that legal description to the

general nature of wahi tapu in the area. Thus, Mr Millard said, the application was

non-compliant and the Council acted in breach of s 37(7) in processing it. He said

Mr Stirling himself had recorded in his report that the application had not provided

sufficient detail as to the nature and extent of the review sought, and he had needed

to clarify this with Ben Ngaia during their meeting of 16 July 2011, a meeting to

which the plaintiff was not privy.

[110] In terms of s 32(3), Mr Millard said the deficiencies in the application,

relating to the general area of land affected and the details of the general nature of

the wahi tapu, could not have satisfied the Council that the proposal was supported

by sufficient evidence. The deficiencies did not enable the identification of

individual owners, occupiers and interest holders affected by the proposed wahi tapu

area sufficiently to provide them with “a proper opportunity to meet what is in effect

a claim to an interest in their land”.

[111] Mr Millard said there is still no record anywhere in the documentation of the

specific boundaries the Trustees sought for the wahi tapu extension they proposed

and why those boundaries were justified; and there was a lack of specific evidence

about the land in question being sacred to Māori. Without access to a clear statement

of the specific boundaries the Trustees were seeking and why those specific

boundaries were said to be justified, the plaintiff was “unable to determine the exact

location and nature of the wahi tapu area within the extended area” identified by

Mr Stirling in his report.

[112] Mr Millard summarised the plaintiff’s concerns in the following way:

[The Act] requires the applicant proposing a wahi tapu area to define with

precision in their application what specific boundaries they seek for their

wahi tapu area and why those boundaries are justified. Clarity on these

matters allows affected landowners to meaningfully respond to applications

for the registration of a wahi tapu area, as Parliament envisaged they would

be able to do under the Act.

Second ground of review

[113] The second ground of review has distinct overlap with the first ground of

review. It alleges failure to disclose relevant documents to the plaintiff. In this

regard the plaintiff relied on s 32A of the Act, as well as on the principles of natural

justice. Specifically, Mr Millard argued, the plaintiff should have received a number

of documents.

[114] These included the Trustees’ application on the form sent to them by

Ms Collins. Instead, the Council disclosed the 1995 application.

[115] It also included copies of relevant source documents which were not supplied

to the plaintiff. These included Mr Stirling’s interview notes from his 16 July 2011

meeting with Ben Ngaia, which was obviously important in determining the area to

be included in Mr Stirling’s review report.

[116] Nor was Mr Stirling’s memorandum of 16 November 2011 to the Council,

responding to the plaintiff’s submissions, disclosed to the plaintiff. Mr Millard

submitted the Council must have taken this into account, and thus it should have

been disclosed. Whilst accepting that some of Mr Stirling’s comments were

incorporated into the Council’s 17 November 2011 letter of response to the plaintiff,

this response was not received until weeks later and the plaintiff’s response of

12 December 2011 may not have been before the Council at the 14 December

meeting when the decision was taken.

[117] As a result of the omissions, Mr Millard said the plaintiff was prevented from

being adequately informed and was thus unable to make meaningful submissions

under s 32A.

[118] Furthermore, the material non-disclosure was occasioned by the Council’s

unlawful and inflexible policy.

Third ground of review

[119] The third ground of review alleges error of law by the Council in denying the

plaintiff (and other submitters) an oral hearing. Whilst accepting there was no legal

duty in this regard, Mr Millard argued there was no prohibition on the Council

holding an oral hearing. He referred to s 86(1) of the Act, providing for the Council

to have all such powers as are reasonably necessary or expedient to enable it to carry

out its functions; and s 86(2)(a) which envisages that the Council may need to

appoint committees. He said these provisions, combined with the principle in

s 4(2)(b)(iv), that cultural sites should be fully researched where culturally

appropriate, and Parliament’s emphasis on transparency and accountability, indicate

the Council has a discretion to hold an oral hearing consistent with natural justice.

[120] The nature of the error here alleged is that the Council adopted an inflexible

rule that it would never allow an oral hearing for a wahi tapu area application. The

plaintiff says the Council should have at least considered the request.

Fourth ground of review

[121] The fourth ground of review is an alleged failure by the Council to give

reasons for its decision. Mr Millard submitted that reasons are desirable in showing

“openness in the administration of justice” and are “critical to the maintenance of

public confidence in the system of justice”, as they help people “to understand why

[statutory] authority has been used in a particular way”, thereby ensuring

“accountability” for decisions.14

[122] Mr Millard said, while there was no express requirement in the Act for the

Council to give reasons, it is implicit in the statutory framework and for the reasons

articulated in Lewis v Wilson & Horton Ltd, that the Council should report its

findings with sufficient particularity to allow applicants and directly affected

landowners to understand why a particular wahi tapu area is or is not to be

14

Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA), at [76] and [79] per Elias CJ.

registered. He referred to the guiding principle in s 4(3)(b) of the Act, that

identification of New Zealand’s cultural heritage should be fully researched and

recorded where culturally appropriate. Further, that Parliament had indicated, during

the third reading of the Historic Places Amendment Bill 2006 (which inter alia

introduced the right for affected landowners to make submissions (s 32A)),15

that

Parliament’s intent was to provide for greater transparency and accountability and

for more involvement by affected parties in the statutory processes for registering,

reviewing and varying wahi tapu areas.

[123] In Mr Millard’s submission, there had been a complete failure to provide

reasons in this case, to address a number of disputed facts and inferences, and to

explain why the Council rejected the plaintiff’s evidence on these matters.

[124] Mr Millard suggested that part of the explanation for disputed facts and

inferences not being resolved may have been the very short timeframes the Council

set itself for determining the Trustees’ application, and that these resulted from “a

desire to use an extension of the boundaries of the wahi tapu area as support for the

Council’s opposition to a NZ Transport Agency-preferred Expressway option”. In

this regard Mr Millard suggested there had been a blurring of advocacy and

registration functions.

[125] Compounding the failure to give reasons, was the alleged failure to test the

contested facts and inferences through cross-examination at an oral hearing as

requested. Mr Millard said the Council’s preference not to hold an oral hearing

prevented “competing evidence to be tested through a process of confrontation” and

resulted in “important factual uncertainties, and contradictions remaining unresolved

at the time of decision”. Whilst the plaintiff concedes that Mr Teira did visit the

plaintiff at its property, the plaintiff is unhappy that it was not “permitted to address

the Council orally or to confront Mr Ben Ngaia ‘in the presence of the Council’”.

[126] Overall, under this head of review, the plaintiff says there was a unique

combination of circumstances that required the Council to explain why it rejected the

plaintiff’s evidence that contradicted the evidence in Mr Stirling’s report. The failure

15

(27 June 2006) 632 NZPD 19676.

of the Council to address the plaintiff’s evidence in its decision, or to otherwise

demonstrate that it had taken the plaintiff’s evidence into account in reaching its

decision, effectively denied the plaintiff a “fair crack of the whip”.16

Fifth ground of review

[127] The fifth ground of review alleges that the Council should have considered

the plaintiff’s property rights. In this regard the plaintiff says the Council erred in

taking the position that registration alone did not impact on property rights, as there

was evidence there would be at least a 5–20 per cent decrease in land value, if the

land were registered as a wahi tapu area.

[128] The plaintiff’s argument is that the Council’s view that private property rights

were irrelevant to its decision was plainly wrong. Mr Millard said the reality that

registered wahi tapu areas will affect the value of privately owned land is a matter

that should be taken into account in the interpretation and application of the Act. In

particular, he referred to the presumption that confiscatory provisions in a statute

should be given a narrow interpretation and application where appropriate, citing

In Re Horowhenua, Subdivision No 14.17

Sixth ground of review

[129] The final ground of review is one of cumulative impropriety, being the sum

of errors, which are said to have rendered the Council’s decision unsafe. In this

regard the plaintiff relies on the alleged improprieties and misleading and delayed

disclosures by the Council; the lack of response to the plaintiff’s request for

information in a timely manner; the short timeframe allowed; and the misleading

disclosure of the Trustees’ Cultural Impact Report which the Council had not relied

upon.

16

Fairmount Investments Limited v Secretary of State for the Environment [1976] 1 WLR 1255

(HL) at 1265. 17

In Re Horowhenua, Subdivision No 14 (1897) 16 NZLR 532 (SC) at 539–540.

Discussion

First and second grounds of review

[130] As there is a distinct overlap between the first and second grounds of review,

it is convenient to deal with them together. Overall, they cover alleged deficiencies

in the application itself and an alleged failure to disclose relevant documents.

[131] For reasons I now set out, my view is that any alleged deficiencies or

omissions in either respect were cured by Mr Stirling’s report, which was made

available to the plaintiff in a sufficiently timely way. Additional to that report was

the follow-up letter from the Council elucidating on matters of concern raised by the

plaintiff, and Mr Teira’s site visit to discuss the plaintiff’s concerns.

[132] The plaintiff alleges that the Council erred in law by accepting and

processing a non-compliant application. Mr Wilson responded by submitting that

the requirement for a legal description relates only to an application for registration

and not to an application for review of an existing registration. While s 37(4)

requires an application for review to be in the prescribed form (if any) and to state

the grounds for review, the inclusion of a legal description of the land is not required.

Section 37(7) is directed only to process, once the Council has decided to embark on

a review, and is not directed to the form of an application.

[133] It is not necessary to decide the point as I am satisfied that any deficiencies

were cured by Mr Stirling’s researches and by his identification of all of the land

affected, which he detailed in his report including all relevant legal descriptions and

certificates of title.

[134] As an observation, I would incline to the view that an application to vary a

registration ought to contain a legal description of any land that might be affected, if

the legal description is known. However, it is perfectly feasible, as in the present

case, that information on which an application is based might originate from oral

history and thus predate any documented history or system of land registration. In

such a case, the application may require specialist research, such as that undertaken

by Mr Stirling, in order to determine whether it has validity. In any event, the