Tait Hoby and Louise Ford, Atkins Holm Majurey discuss recent developments in our common law in relation to ‘tikanga Maori’ (Maori customs) in our legal system and address two decisions of the Independent Hearings Panel regarding McCallum Brothers Ltd (McCallum Brothers) in-shore and mid-shore sand mining resource consent applications.
In 1993 Peter Hugh McGregor Ellis was convicted of 16 counts of sexual offending. He appealed his conviction to the Court of Appeal, firstly in 1994 and again in 1999. Both appeals were unsuccessful. On 31 July 2019 the Supreme Court granted leave for Mr Ellis to appeal the Court of Appeal decisions. However, on 4 November 2019 Mr Ellis passed away, before either hearing could take place.
On the 7th of October 2022 the Supreme Court released the reasoning for its decision on whether Ellis’s appeals should be allowed to continue despite his death.
While this case ultimately concerned alleged criminal conduct, its findings on Tikanga Maori and its place in our legal system have wide reaching implications for all areas of law, including the resource management sphere.
The judges found that Ellis’s appeal should be allowed to continue despite his death, partially on the basis that the mana (prestige, authority, control, power, or influence) of Ellis’s family and that of the victims’ family would continue to be in a state of imbalance due to either the alleged offending, or the potential miscarriage of justice in Ellis’s conviction.
In the reasoning of the majority, the Court said ‘tikanga’ was the first law of this country and had not been extinguished by the advent of ‘colonisation’. Furthermore, the Court discussed how tikanga is becoming increasingly integrated into the legislation, case law, and everyday lives of New Zealanders.
Tikanga can be defined as including perceived; “values, standards, principles, or norms that the Maori community subscribe to, to determine the appropriate conduct”.
In their discussion of the place of tikanga within our legal system, the judges did not attempt to give a comprehensive answer on exactly what circumstances or how tikanga will be applicable to an issue. This is due to the complex interconnected nature of the principles of tikanga.
This becomes an even more complex issue when you introduce the intersection between tikanga and the common law, or existing legal system here. Ultimately, the Court found that the appropriate method for determining the applicability of tikanga to an issue will depend on the circumstances of a case. However, the Court did provide some guidance on how much weight tikanga will be given when deciding an issue to which it is relevant.
For example, while tikanga may be of relevance to certain issues, where a piece of legislation, such as the Resource Management Act 1991, specifically refers to tikanga Maori it may become a determinative, or highly persuasive, factor in the resolution of an issue.
Ultimately, the Ellis case confirms that tikanga will often be a relevant, or sometimes determining, factor in deciding a wide-ranging variety of legal issues through all spheres of our legal system. Environmental law is an area that will perhaps be more impacted by this decision than other areas of law as principles of tikanga are already present in the relevant legislation and case law, through the application of the principles of the [1840] ‘Treaty’. Therefore, this decision affirms and strengthens the importance of tikanga within the field of resource management.
Pakiri sand mining: in-shore decision
In the May issue of this journal, we reported on the outcome of an application by McCallum Brothers for the ongoing right to mine sand in Pakiri, north of Auckland. On Monday 31 October the Independent Hearings Panel released their decisions on the remaining two resource consent applications, for the in-shore and mid-shore respectively.
The in-shore application was a request for a renewal of the existing permits previously held by Kaipara Limited. The in-shore application involved dredging within the 5m and 10m isobaths, within an area of 2.57 square kilometre-along 10.8km of the Pakiri shoreline.
The proposed extraction volumes included an annual volume of up to 76,000 cubic metres over any consecutive 12-month period, with the extraction volume being limited to a maximum of 15,000 cubic metres over any consecutive 30-day period.
The in-shore application was refused. This was due in part, to the preference of McCallum Brothers, who had expressed that if only one consent could be granted, its preference was for the mid-shore application.
While the Panel acknowledged that sand mining at Pakiri had far reaching economic benefits, it concluded that these benefits could still be obtained through the granting of the mid-shore consent.
The Panel also found that declining the in-shore application was the best way to avoid or mitigate any potential erosion issues arising from sand mining, as mid-shore activities contribute less to erosion rates.
Furthermore, while the Panel concluded that ecological impacts were likely to be relatively minor overall and could be further mitigated by good practice, the rejection of the in-shore proposal would further reduce any adverse ecological impacts.
Finally, refusal of the in-shore application in favour of the mid-shore gives effect to the wishes of Te Uri o Hau and other local mana whenua [invested land interest] groups, who wished for any activities to be undertaken in the mid-shore only. By refusing to grant the in-shore application, the Panel was able to preserve the mana of Te Uri o Hau.
The mid-shore decision
The mid-shore application involved dredging of a 6.6 square kilometre area along 10.4 kilometres of Pakiri’s shoreline. The shoreward boundary of the Mid-shore extraction area is approximately 130-200 metres seaward of the seaward boundary of the In-shore area, ranging between 860-920 metres from the Mean High Water Spring (MHWS), and includes an offset from Te Arai Point.
Although the Panel granted McCallum Brothers application for the mid-shore consent, they did so only after imposing significantly more stringent restrictions. These conditions can be summarised as follows.
The extraction area was confined to the north of Te Arai point and within the rohe [territorial interest] of Te Uri o Hau. The maximum extraction volume has been reduced from 150,000 cubic metres to 50,000m3 per annum; and the duration of the consent was shortened from 35 years, as sought by McCallum Brothers, to 10 years. The total extraction was limited to 500,000 cubic metres (over the consent term of 10 years).
These changes were made in order to balance the expected, or anticipated, positive economic effects from access to Pakiri sand, with the [perceived] adverse cultural, climatic, and coastal process effects. The Panel considered that these conditions were fair in that they would not be likely to nullify the benefits of the application while still affording necessary protection to the environment.
The Panel ruled in favour of allowing sand extraction to continue due to the significant economic benefit that Pakiri sand provides the Auckland region. The Panel acknowledged that if extraction were to stop, there would be “impacts on the development of necessary infrastructure”.
However, the Panel did note that while the consent should be granted, the Applicant, and the sector as a whole, should begin looking for viable alternatives to Pakiri sand.
As McCallum Brothers expressed a preference for the mid-shore application to be granted, it is uncertain whether it will appeal the decision on the in-shore consent.
However, Friends of Pakiri Beach (a group opposed to the mining of Pakiri sand) has filed a notice in the court of its intent to appeal the mid-shore decision.
