1

BEFORE THE HEARINGS PANEL

AT TAURANGA

UNDER the Resource Management Act 1991

IN THE MATTER of a resource consent application by The Astrolabe Community Trust to abandon the wreck of the MV Rena and for any future discharge of contaminants from the wreck.

LEGAL SUBMISSIONS ON BEHALF OF

MOTITI ENVIRONMENTAL MANAGEMENT INC SOCIETY

Dated: 1 October 2015

Kate Barry-Piceno

Barrister

PO Box 5426

Mount Maunganui

T: 07 575 7383

E:

18

MAY IT PLEASE THE HEARINGS PANEL:

Introduction And Background

  1. These submissions are made on behalf of the Motiti Environment Management Incorporated Society (herein after referred to as (“Motiti Environmental”). Its membership landholdings at Motiti, and the details of members are referenced in the evidence of Chris Rejhtar.
  2. As covered in the evidence of Peter Grant and Eunice Evans, Motiti Environmental was established in 2008 as a result of a number of challenges that Motiti Island’s environment and community faced. All of these challenges were present and part of Motiti’s history, long before the MV Rena struck the Astrolabe Reef on October 11, 2011.
  3. The isolation of the Island, lack of resources and the natural boundaries of the sea have heightened the sense of community on Motiti and built a distinctive quality to the people who whakapapa to Motiti. All the membership landowners at Motiti maintain very strong connections to Motiti. There has been a strong focus by the Motiti community through various recent RMA hearings and appeals, to both the landscape and the surrounding Moana of Motiti as to its significance as a highly valued Taonga for Motiti Tangata Whenua.
  4. The establishment of Motiti Environmental related to a greater sense of connection between land owners from Motiti committed to its environment, and the Incorporated Society entity purposely sought from its inception to cut across tribal or racial lines.
  5. Motiti Environmental founding members (both Tangata Whenua and Pakeha) felt disillusioned at the competing divisions and ongoing conflict that had developed through the Hapu Management Plan and District Plan processes[1]. The founding members sought to focus on positive environmental outcomes for Motiti and its people, rather than continued conflict over representative mandates and process. Motiti Environmental intention was to engage in shared environmental projects on the Island to return Motiti’s community to one as previously noted by the Court as displaying a “high degree of co-operation between all Motitians to enable proper use to be made of the Island”[2].
  6. The Society’s constitutional objective is to “sustain the unique island character and lifestyle of Motiti Island for the spiritual, cultural, social, environment and economic benefits of future generations”. The members of Motiti Environment did not realise how much this objective would be tested within a few years of Motiti Environmental being created. However, all Motiti Environmental members remain committed in the long term to this objective. Other submitters’ attention to Otaiti is likely to wane over time, but Motiti Environmental members, as land owners, will remain with Otaiti within viewing distance. The Rena wreck, and the issue of whether it is left to stay or go, has impacts that directly affect the members’ homes, their unique island community, their food sources from the surrounding Moana and many of their members’ cultural values as well.
  7. Our Tangata Whenua members have chosen to support the application, if granted with appropriate conditions, through its Motiti Environmental submission rather than as an individual or cultural group opposing their Hapu or Iwi submission. The position on matters of cultural values is considered to be consistent with the Island’s Hapu Management Plan and the objectives of the Motiti Environmental constitution, which includes promotion of cultural and spiritual values for Motiti Island. This position is explained later in these submissions.

THE EFFECT OF THE RENA WRECK ON THE MOTITI COMMUNITY

  1. When the MV Rena ran aground on Otaiti in 2011, the physical and environmental harm to the reef and Motiti Island was intense and catastrophic. The disaster was experienced first-hand by those Motitians[3] who live and frequent the Island, as explained in the evidence of Vernon Wills.
  2. Motitians responded quickly to support the salvage operation with the view their obligation to the environment required them to ensure that the reef and the Island suffered as little physical and environmental harm as possible. The Motiti tribal elders on the island focussed on ensuring the Mauri of Otaiti suffered no further spiritual harm and they sought to restore the unbalance of Mauri caused by the Rena’s collision with the reef.[4]

MOTITI ENVIRONMENTAL POSITION ON THE APPLICATION

  1. The members of Motiti Environmental had regular meetings with the owners of the Rena, with scientists and salvors staying on the Island right from the outset. Opinions for cultural, planning and scientific experts was sought and listened to.
  2. Members such as Don and Vernon Wills have directly seen and experienced the improvements to the marine environment around the island and out at the reef. The members have taken up the opportunities offered by the Applicant to visit the reef whilst salvage operations were being carried out, they have read the numerous reports, and have viewed a number of videos taken out at the site. Over the last three years members have both formally and informally monitored and been regularly updated over the Rena recovery operations. As Tangata Whenua members have also been involved in Hapu and Iwi related huis and meetings over the Rena, such that they have heard a range of perspectives on this application[5].
  3. Motiti Environmental sought early legal advice on the application and considered the financial limitations, regulatory constraints and legal complexities over the limits to legal responsibilities of the Applicant to remove the wreck entirely in the context of the Maritime Transport Act and Resource Management Act 1991.
  4. Through these various processes, Motiti Environmental came to what they consider is a protective but pragmatic view that Motiti Island, Otaiti and its surrounding ocean environment would be best protected and served by focussing on reaching agreement with the Applicant over the extent and type of restoration, monitoring and mitigation conditions to be included if the consent to leave the remains of the Rena wreck in place was granted.
  5. As noted by Mr Grant, Motiti Environmental initially put in a submission stating it was neutral to the application, but this has moved to one of support, based on consent being granted with a robust set of conditions as offered.
  6. Motiti Environmental members’ evidence confirms the Applicant has undertaken extensive and respectful consultation with Motiti stakeholders, in particular with its Tangata Whenua community and committed to significant restoration and mitigation works beyond what the owners are legally required to do. Motiti Environmental considers the Applicant has offered generous and adequate compensation as mitigation to those affected groups willing to engage with the Applicant. The Applicant’s openness to amending offered consent conditions and to accommodate different submitters’ positions throughout the course of its application and hearing process has also been greatly appreciated by Motiti Environmental.
  7. The particular proposed conditions to which Motiti Environmental has an interest in are:
  8. The four Monitoring Plans (Physical Environment, Mauri, Cultural, Wreck condition and Debris);
  9. The Kaitiaki Reference Group;
  10. The ‘Augier’ restoration and mitigation conditions, in particular the Motiti Project fund;
  11. Cultural values (as they relate to and affect Motiti Island’s Tangata Whenua); and
  12. The proposed conditions as amended on September 7 2015 and introduced by the applicant at opening are considered acceptable by Motiti Environmental. The outstanding issues over conditions such as the term of consent or an undertaking vs bond are not commented on in these submissions or evidence. Motiti Environmental does support conditions which are within scope, robust and follow adaptive management principles. It also supports the Panel’s approach of trying to get the parties experts to come to agreement on conditions.

CULTURAL EFFECTS

  1. In achieving the single broad purpose of the Act, all authorities exercising powers under it are bound by certain requirements and these include provisions such as Section 6(e), 7(a) and 8 that relate particularly to the Panel being sensitive to Maori issues.[6]
  2. Pursuant to section 6(e) of the RMA, the Hearings Panel must “recognise and provide for the relationship of Maori and their culture and traditions with their ancestral lands, water sites, waahi tapu and other taonga”.
  3. The Panel must have particular regard to Tangata Whenua with a direct Kaitiakitanga relationship to Otaiti. These Kaitiakitanga relationships have been recognised within RMA statutory and other statutory documents. Relevant cultural values have now been articulated and developed within four recognised RMA statutory plans[7]. Tikanga Maori values and consultation/engagement protocols as related to Motiti are set out in particular detail after extensive Tangata Whenua engagement and adopted through the Motiti Island Hapu Management Plan process. This process went on over many years and involved numerous Huis, extensive hearing processes, Environment Court hearings and mediations to get the parties to develop an agreed Plan. The significance of this document cannot be underestimated as it was adopted and formally endorsed by the Regional Council, the Crown (DIA), Te Runanga o Ngati Awa, Te Patuwai Tribal Committee, Motiti Marae Committee, Motiti Rohe Moana Trust and all Motiti Tangata Whenua groups.
  4. As noted by Dr Young, the Crown’s witness, Kaitiakitanga is considered to be primarily derived from whakapapa. Therefore, the evidence of the Tangata Whenua with the principal relationship and direct Whakapapa relationship to Otaiti are the people of Motiti[8]. In accordance with Tikanga, evidence of those of Kaumatua, Pukenga or Rangatira status, in particular from Te Patuwai Hapu as the Tangata Whenua with Ahi Kaa Kaitiaki status over Motiti, should be given strong weight.
  5. Motiti Environmental acknowledges Te Patuwai Hapu as the Tangata Whenua holding primary Kaitiaki status over Motiti and Otaiti. However, it is submitted Tangata Whenua who whakapapa to Motiti have long had diverse and wide ranging views on numerous Motiti issues prior to the Rena, such as;
  6. whether the sovereignty of the Crown at Motiti is accepted at all;[9]
  7. whether to engage or consult with the DIA or Regional Council as local authorities or accept their authority[10];
  8. whether to accept the Ngati Awa’s authority as mandated Iwi for Motiti[11]; and
  9. the role of Whakatane based Te Patuwai Tribal Committee as the Hapu authority for matters related to Motiti rather than Motiti based tribal groups such as the Motiti Marae Committee[12].
  10. All of past legal decisions related to Motiti Island highlight that conflicts over cultural values, competing Tribal authority and mandated representation at Motiti are triggered each time there is a resource consent application sought for any kind of resource management process[13].
  11. A major cause of this appears to be due to the Island’s isolation and consequential history of alienation from contact with Government departments, and the Hapu and Iwi authorities now being based on the Mainland. In my submission, this background to the cultural evidence before the Panel is highly relevant to consider, especially in the context of the cultural concept of Ahi Kaa.
  12. The Courts have generally been loath to adopt or sanction a ‘ranking approach’ to consideration of which group of Maori have primary Kaitiakitanga status or mandate, leaving this issue to the Maori Land court and/or Waitangi Tribunal. However its increasing emergence in RMA cases has been noted since 1998.
  13. In the Court of Appeal in Friends of Community of Ngawha Inc[14], the Court denied the appellants leave to appeal[15], endorsing the approach by the Environment Court which had focussed on the nature of the cultural relationships with all Maori groups, rather than determining the competing claims for primary Kaitiakitanga status.
  14. In my submission, the Courts’ approach to conflicting inter-hapu evidence on Tikanga Maori issues is best addressed by weighting all relevant competing considerations. The evidence and review of the history, knowledge, status, and expertise on the subject issue between the witnesses, is more that there is differing “pragmatic views” and “traditional views” of Maori tikanga being argued. [16]In my submission, this does not require determination any competing representative or mandate standing issues.
  15. On the issue of Tikanga and Kaitiakitanga, Motiti Environmental Tangata Whenua members considered it best they follow the traditions as always previously endorsed, to rely on the tribal Korowai of elders. This was the previous position its Iwi Te Runanga Ngati Awa and the Motiti subcommittee of Motiti Marae when it gave evidence to the Environment Court over the proposed Motiti District Plan and Hapu Management Plan. In evidence, it was stated[17]:

“In terms of consultation for the proposed Motiti District Plan the DIA:

a.  Did not identify the Ahi Kaa, therefore did not consult with Ahi kaa;

b.  Did not have a list of all owners;

c.  Did not confer with Kaumatua of Motiti Island;

d.  Performed consultation with those that have not grown up on Motiti Island.

This is an important to the Tangata Whenua. Although we acknowledge our mainland whanau, we consider the whanau who have kept our fires burning (Ahi kaa) continuously, to have mana whenua. This also includes whanau who have frequently visited our moutere throughout every generation.”

  1. In the High Court case of Ngawha v Minister of Corrections [2012] NZRMA 401 HC[18] the Court stated “the views of the Kaitiaki who have most recently and closely exercised stewardship over the land patently carry greatest authority”. Motiti Environmental has chosen to support and adopt the views of the Motiti Kaumatua on cultural values in respect and deference to the view they hold the greatest Kaitiakitanga authority at Motiti and with respect to Otaiti.
  2. The High Court considered the burden of proof specifically with respect to Maori values in the case of Ngati Maru Iwi Authority v Auckland City Council (AP18/02), 7 June 2002. The High Court confirmed that the evidence on Maori values under either s6 or s7 must be probative and credible (supra, paras 64-68).
  3. A number of subjective values form part of the Panels’ assessment of environmental effects in relation to this application, such as cultural, social and landscape values. Any adverse effect on cultural values will require determining the level of how these values will be adversely affected from leaving the wreck remains in place, and from the risks of any further contaminant discharges as identified by the experts.
  4. The Court has previously noted that while Tangata Whenua may accept without question that a place is waahi tapu on the word of Kaumatua, the Court is required to hear the witnesses, whether Kaumatua or not, determine its relevance and make an objective finding on the balance of probabilities[19]:

“The role of the Court is to hear and determine proceedings based on the evidence before us and the law that applies to the consideration of such evidence. While the Environment Court is not bound by the rules of law about evidence that apply to judicial proceedings[20], this is a measure to enable the Court to receive a wide range of material that might not otherwise meet the formal requirements of those rules of law. It is not a basis on which the Court can disregard the basic principles on which the concept of proof of facts is based. We respectfully agree with the following summary by the Court of the essential approach to make a finding on the question of fact: