Impact of Section 6e of the RMA on Resource Consents
- Created: Friday, 24 January 2014 03:19
Heybridge Developments Ltd v Bay of Plenty Regional Council [2013] NZ EnvC 269
In this decision, the Environment Court addressed issues remitted back for its further consideration by the High Court. The High Court's decision allowed Heybridge Developments Limited's (HDL) appeal to the Environment Court's previous decision to decline its resource consents for earthworks and other activities relating to a four-lot subdivision (Proposal) of its 44ha property at Lochhead Road, Tauranga (Site).
Opposing the Proposal were representatives of the Pirirakau hapu who argued the Site was waahi tapu (sacred) due to a belief their ancestor was buried there. The previous Environment Court decision established that the Site was within an area known as Tahataharoa – the ancestral land of Pirirakau and one of cultural significance to them. Pirirakau also retained a relationship with the Site.
Considering the High Court's findings, this decision addressed how the relationship of Pirirakau and its culture and traditions with the Site should be recognised and provided for, especially in light of the established authorities concerning section 6(e) of the RMA, which requires all persons exercising functions and powers relating to managing the use, development and protection of natural and physical resources to recognise and provide for "the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga".
After reviewing submissions from counsel and the authorities relied on by the High Court, the Environment Court was satisfied that there was "no authority for the blanket proposition that a relationship under s6(e) of the RMA could not be based on honest belief". The Court agreed with counsel for Bay of Plenty Regional Council that case authority demonstrated that "oral assertions of a belief, supported by consistent and credible evidence tending to corroborate the authenticity of the belief", could sustain a relationship for the purposes of section 6(e) of the RMA.
Therefore while it was not established that the Site was the actual burial place of Pirirakau's ancestor, the Environment Court found there was sufficient probative evidence that Pirirakau's honest belief (based on their oral traditions) established their relationship to the Site in section 6(e) terms.
However the Court also found that the likelihood of the Proposal disturbing the burial site of Pirirakau's ancestor was "considerably less" than it was led to believe in its previous decision. The evidence for Pirirakau now contended that the entire Tahataharoa area (in addition to the Site) was waahi tapu. So while the Environment Court accepted that the disturbance and desecration of ancestral remains would be an effect of high impact on Pirirakau if it occurred, the possibility of that happening was no greater than for any other land at Tahataharoa.
Consequently, and given the wide extent of protection sought by Pirirakau, the Environment Court (in the majority) considered it would be unreasonable to decline HDL's consents. Conditions were imposed on HDL to ensure that the relationship, culture and traditions of Pirirakau could be provided for under section 6(e) of the RMA. Parties were allowed 20 working days to discuss the form conditions might take, with HDL's modified proposals and conditions suggested as providing a basis for those discussions.
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