Heybridge Developments Limited v Bay of Plenty Regional Council and Pirirakau Incorporated Society
The recent High Court decision of Heybridge Developments Limited v Bay of Plenty Regional Council (High Court, Tauranga, CIV-2010-470-585, Peters J) includes an interesting discussion on the role of cultural beliefs under Part 2 of the Act.
Background to the appeal
Heybridge Developments Limited (“Heybridge“) owns 44 hectares of low lying land in Te Puna on the mouth of the Wairoa River, Taraunga. The site is within the larger area of Tahataharoa. The local hapÃ…Â« Pirirakau believe their ancestor and chief Tutereinga is buried somewhere within Tahataharoa, and that it is possible he is buried somewhere on the site.
With a subdivision consent under its belt, Heybridge lodged various resource consent applications with the Bay of Plenty Regional Council (“Council“) to undertake earthworks and various activities in order to give effect to the subdivision consent. Under the Regional Plan, these activities were discretionary. The Council rejected the applications on the basis of the significant effects of the proposed activities on Pirirakau and their culture and traditions. Heybridge appealed.
The Environment Court was unable to make a definitive finding that the site was or was not waahi tapu. The Court said that it was left with:
“…an honestly held belief of Pirirakau that Tutereinga’s burial site is or may be within the application site. We do not find that belief to be unlikely, implausible or inconsistent with the evidence which we heard.”
The Court also said:
“…we cannot accept the submission made by Mr Cooney that we can simply rely on the genuineness of the Pirirakau beliefs without further enquiry. It was entirely open to Heybridge to attempt to establish that those beliefs were misplaced. The success of such arguments depends on this Court being persuaded that such beliefs are misplaced given the existence of contradictory probative evidence.
Heybridge appealed to the High Court.
The High Court decision
The High Court held the Environment Court erred. This finding can be summarised as follows:
- Whether section 6 applies in any given case raises questions of fact;
- Whether land is Maori ancestral land or is waahi tapu for the purposes of section 6(e) is a question of fact;
- A party who asserts a fact bears the evidential onus of establishing that fact by adducing sufficiently probative evidence. The existence of a fact is not established by an honest belief; and
- If Pirirakau alleged that section 6(e) required the Court to recognise and provide for Pirirakau’s relationship with the site on the basis of waahi tapu, it was for Pirirakau to establish the existence of waahi tapu. It was not for Pirirakau simply to assert a belief and for the appellant to be required to disprove it.
The High Court held that the Environment Court had erred in imposing an evidential onus on Heybridge to prove that Pirirakau’s belief was misplaced or misconceived, even though the Environment Court itself was unable to conclude on the evidence whether or not Tutereinga was in fact buried on the site. The High Court held that while there is no burden of proof on any party in relation to waahi tapu:
A party who asserts a fact bears the evidential onus of establishing that fact by adducing sufficiently probative evidence. The existence of a fact is not established by an honest belief…[a]llegations must be established with objectively probative evidence which satisfies the Court on the balance of probabilities. Mere assertions are inadequate.
In shifting the evidential onus to Heybridge, the Court had effectively sought to provide for a relationship with the site on the basis of a belief, albeit a genuine one, rather than an established fact. While all the parties agreed that the site was Maori ancestral land, section 6(e) is intended to reflect relationships established by evidence, rather than just belief. The High Court held that although the land was ancestral, it was not this capacity that provided for Pirirakau’s relationship with the land. That relationship stemmed from the belief that the site was a urupa.
On the final ground, the High Court held that the Crown does not have a duty of active protection under Part 2 of the RMA. Section 8 of the RMA imposes the obligation to take into account the principles of the Treaty of Waitangi in achieving the purpose of the RMA and one of the principles is the obligation of active protection. However, the High Court held that when balanced against Part 2, the duty of active protection cannot afford greater protection than the relationship with ancestral lands under section 6. The High Court allowed that the Environment Court could consider section 8 when re-determining whether or not the consents should be granted.
The High Court allowed the appeal and remitted the matter back to the Environment Court for further consideration.