Tu Pono Legal Limited Barristers and Solicitors

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1 UNDER The Resource Management Act 1991 IN THE MATTER OF An application by the Astrolabe Community Trust to the Bay of Plenty Regional Council for resource consents in relation to the remains of the MV Rena Submissions for Te Arawa Dated this 10 th day of September 2014 Tu Pono Legal Limited Barristers and Solicitors 1115 Pukaki Street P.O. Box 1693 ROTORUA 3040 Ph: Fax: DX JP30025 Counsel Acting: Jason Pou

2 Introduction 1. Otaiti is a taonga. It is intrinsically significant place where traditional connections have converged for generations. It is a place imbued with mana (power) and rangatiratanga (authority). 2. In many regards, the reef is a cultural keystone to the peoples of Te Arawa Waka, connecting them back to their tohunga (or navigator) Ngatoroirangi, one of their most significant ancestors. 3. To those who exist today, those connections are a source of mana and a reason to exercise rangatiratanga. 4. This is the context of the participation of Te Arawa in this process as they seek to maintain their traditional obligations of kaitiakitanga and manaakitanga. 5. The evidence that will be brought for Te Arawa will show their ongoing efforts toward the maintenance of these tribal ethics which has brought Te Arawa to the position that they now maintain, supporting the application for resource consent. 6. The evidence for Te Arawa illustrates to the panel the basis of this decision and why it was made. 7. In this regard, it is not intended that these submissions, or the evidence that has been proffered, should be taken to speak for the interests of others or assert a priority for Te Arawa over the other groups that come before the panel. 8. This does not mean, however, that the evidence can be taken in isolation of the evidence that has been proffered by other iwi groups. 9. It is not the role of this Panel to resolve conflicts of mana whenua and/or representation that issues that might be raised within this process. 10. Notwithstanding the evidence of Dr Young for the Crown, even the Waitangi Tribunal is loath to interfere in such disputes. In its East Coast Settlement Report, 1 the Tribunal endorsed its earlier findings noting its discomfort in inquiring into claims brought by dissatisfied groups disputing the credentials of mandated bodies. I urge this panel to heed the caution of the Waitangi Tribunal and avoid casting itself as arbiters of mana in disputes between disaffected groups. 1 The East Coast Settlement Report (Wai 2190, 2010) at page 44: 1

3 11. While the Panel must stay out of those disputes, there are, nevertheless some different perspectives that have been raised, for instance that relating to the mauri of the reef, that do require some reconciliation given the differing outcomes that are generated. 12. Where possible, these submissions will seek to assist the panel in this role. Background to Participation 13. Te Arawa participates in this process to protect their taonga, Otaiti, and the legacy that was left by Ngatoroirangi. 14. Their focus is on the reef and the environment and how best they can facilitate its enhancement and restoration. 15. The evidence before this panel attests to the devastation that was felt when the Rena collided with their taka tapu, spilling its contents which ended up on their beaches. 16. It was through that devastation that Te Arawa mobilised to assist in the clean-up at all levels where they could. Participating in the clean-up elevated consciousness and awareness of the actual and potential effects of the disaster. 17. The increase of consciousness led to an increased desire and need to be involved and kept informed of the strategies that would be employed in the ongoing clean-up operations. Over time, with increased involvement, Te Arawa have looked to see how they could assert some influence and control over the processes in a true exercise of practical kaitiakitanga. 18. These strategies were being developed within the context of perceived defects in New Zealand s maritime and resource management law. 19. New Zealand had ratified the Nairobi Convention on the Removal of Wrecks but it had not been brought into force, and therefore the civil obligations of the Owners and its insurers were limited. 20. An effort to have civil limitations set aside was mounted in the High Court and this failed. Many groups, including a number of Maori groups in this proceeding settled their claims on the basis of the funds that were available. 21. The Crown sought and negotiated a $10.4 million incentive fee which the owners would pay the Crown on the basis that it did not oppose this resource consent application. 2

4 22. As many groups were seeking and achieving settlements for themselves, what became clear was that there was no way of legally compelling the owners of the Rena to clean up the Otaiti, yet they were. 23. There was no information available from the Crown or the Council, neither of whom was in control of the clean-up at any rate. 24. From that position, Te Arawa saw that the only way that they could get some surety of outcome to benefit Otaiti would be through the development of conditions within the resource consent application that the owners signalled that they would make. 25. Te Arawa were aware that If a consent was not obtained, there was nothing keeping the owners here to clean up Otaiti and Te Arawa would have to rely on the Council and/or the Crown to monitor matters and pass information onto them. 26. Respectfully, this was not a scenario that Te Arawa had much faith in. 27. Nobody has been able to point to a provision within our domestic framework or the international set of obligations that provides a mechanism that can be used to compel the owner to remove the wreck or do anything for that matter. 28. This is not to say, as the Crown did, that the application should be looked at as if a gun were to the panels head and given the efforts that have been undertaken by the owner on the reef so far, it is an unfair categorisation. It is, however, a practical reality. Cultural Directives within the Resource Management Framework 29. The significance of the cultural context in this application is widely accepted by all parties. 30. The provisions of 6, 7 and 8 of the Act concerning Maori issues are relevant in that they require that: a. the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga be recognised and provided for b. Particular regard to be had to kaitiakitanga; and c. The Principles of the Treaty of Waitangi be taken into account. 3

5 31. These provisions were reflected upon by the Privy Council in McGuire v Hastings District Council, 2 which emphasized their strength and the need for them to be borne in mind at every stage of the planning process. 32. With a cognisance of the usual hierarchical approach to considering these matters, it is submitted that the degree of interrelationship between the provisions, tend to suggest that a contextual evaluation of the requirements could also be adopted so that they are considered together at every step of the planning process. 33. In this regard, is submitted that the taking into account of the Treaty of Waitangi assists in the generation of strategies and process outcomes. In short, it is submitted that section 8 informs the development of strategies and processes to facilitate the achievement of the matters set out in sections 6 and Within this context, it is important to note that the principles of the Treaty do not have binding force. This being said, when viewed through a lens of pragmatism, it provides helpful standards and guidelines to assist in the assessment of whether or not respectful engagement has taken place to ensure that the requirements in ss6 and 7 of the Act can be fulfilled. What needs to be kept in mind is that: with the Treaty principle of partnership, the needs of both cultures must be provided for and compromise may be needed in some cases to achieve this objective. At the same time, the Treaty guarantee of rangatiratanga requires a high priority when proposed works may impact upon Maori taonga The importance of this need for compromise, sensitivity and respect from all sides should be apparent in the matters that are before this panel as tensions have sometimes gotten the best of some. 36. While it is important to protect against the imposition of western limitations on traditional expressions of matauranga by recognising that tangata whenua are best placed to inform the panel of their subjective interests and connections and how they arise, there is nothing in the Resource Management Framework that suggests that any one cultural view must be imposed. 2 [2002] 2 NZLR Waitangi Tribunal Ngawha Geothermal Resource Report 1993, p137. 4

6 37. Indeed, to do so would offend against principles enshrined within the Treaty which was an acknowledgement of Maori existence, of their prior occupation of the land and of an intent that the Maori presence would remain and be respected. It made us one country, but acknowledged that we were two people The views of Te Arawa regarding their engagement with the owners of the Rena are set out in the evidence of Ms Piatarihi Bennett. Her evidence informs how the owners were frank in coming forward to apologise and in the way in which they sought the views of Te Arawa. 39. Ms Bennetts evidence, alongside that of Mr Te Kowhai is revealing in that it shows the way in which Te Arawa sought to constantly test the information that was supplied and where they could, obtain the information for themselves. 40. In this way the process has been open and transparent and it must be said that the the owners have taken all steps possible to obtain the views of Te Arawa. 41. The Crown seems to have taken umbrage at the processes invoked by the owners, however, counsel is not aware of any process of engagement that has been carried out by the Crown that could come close to that which has been employed by the owners. 42. The criticisms of the Crown are all the more curious given the criticisms from the Waitangi Tribunal who reported that the Crown approached its task of consultation on the Rena with what it considered to be minimal effort. 43. It has subsequently come into this process in the wake of the Tribunal s findings to put forward evidence and submissions to assist Maori. Yet, as it does, coming before this panel to speak for and about Te Arawa, it still is yet to come and talk to Te Arawa. 44. It is against this backdrop that the allegations of the Crown about lack of consultation seem to ring quite hollow. 45. What is clear from the evidence before this Tribunal is that, within this planning process, the perspective of Te Arawa is that: 4 Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei Claim (1996) p

7 a. Their relationship to Otaiti is being recognised, and through the conditions of the consent, they are being empowered to provide for it; b. They are being empowered in their desire and ability to exercise kaitiakitanga; and c. The Principles of the Treaty of Waitangi have been taken into account insofar as they inform about respectful processes and relationships. Mauri 46. A common theme that runs through virtually all of the cultural evidence is the need to protect the Mauri of Otaiti. 47. Where the evidence does diverge, however, is how the mauri should be measured and what its current status is and how best to restore it. 48. The position for Te Arawa is set out in the evidence of Piatarihi Bennett, Raewyn Bennett, and Dr Te Kipa Morgan. 49. Mr Morgan attests that the Mauri was in a diminished state when the disaster occurred, though the disaster has had a significant impact. 50. The evidence of Te Arawa, is that the mauri was diminished, but never extinguished. To them, the best way forward is to look at what the reef needs to restore itself 51. Some have asserted that the mauri is been removed or has died and cannot be returned until the foreign body has been completely removed. 52. It is submitted that those statements are hyperbolic and more reflective of the emotive background than the current state of affairs. 53. Ms Bennett refers to a number of vessels that were purposefully sunk with the co-operation of the local iwi, including the Seafire which was sunk beside Moutohora Island. This of course was one of the Resource Consent Applications referred to in the evidence of Mr Phizaklea for the Regional Council. Ms Bennet refers to the helpful officers report of Mr Roy Thompson confirms the participation of Ngati Awa in the process and the appropriateness of sinking a vessel in a culturally sensitive area. 54. When looking at recent acts such as that, that language of ultimatums that has been applied in this proceeding with regard to Mauri should be treated with care. 6

8 55. It is in this regard that I refer to the Mauri Modelling Framework that has been developed by Dr Morgan which assists in the development of strategies to monitor the mauri and restore it over time. 56. This was a significant concern that Te Arawa engaged with the owners over which resulted in the provision of an independent Mauri Monitoring regime within the suite of conditions that make up the proposed consent. 57. Dr Morgan holds the Mauri Model decision making framework out as an empowerer of Tangata Whenua in their ability to contribute their understandings based on their own knowledge. He asserts that it strengthens the context of decision making by enabling the incorporations of culturally relevant knowledge alongside western understandings of the situation. 58. The framework in itself is also transformative, allowing an evaluation from the varying perspectives of maori consciousness. 59. In this way, it is able to assess the impact that social mechanisms of mitigation will have on the perceptions of mauri. In this regard, the development of a school that honours Ngatoroirangi and assists in the revitalisation of his knowledge systems and those relating to the exercise of kaitiakitanga in the coastal region can only strengthen the relationship that Te Arawa have with his legacy and his reef. 60. In this way the mauri is influenced positively and assisted in its restoration. Natural Character 61. With the wreck in place, the reef is characterized as having outstanding natural character. 62. There has been much discussion about matters relating to the natural character of the reef, in particular whether cultural issues ought to be a part of an assessment of natural character. 63. At face value, these concerns could be seen to reflect the apparent focus of Policy 13 of the New Zealand Coastal Policy Statement 2010 (NZCPS) which is silent on the relevance of cultural issues or matters. Care should be taken, however, to ensure that an artificial separation is created that divorces the matters listed in Policy 13 from those interrelated ones listed in Policies 14 and 15. 7

9 64. In this context, it is important to note that policy 14 of the New Zealand Coastal Policy Statement 2010 (NZCPS) lists the restoration of cultural landscape features as a possible approach to restoring natural character. 65. If the restoration of natural character can be achieved by restoring cultural landscape features, then it logically follows that natural character might at times include cultural landscape features even though such features are not explicitly listed in Policy 13(2) of the NZCPS. 66. In this regard, it is apparent that cultural landscape features are implicitly attributes of natural character that might require consideration in any assessment. Efforts to arbitrarily exclude of such features from consideration as an attribute of natural character would therefore be inconsistent with the relevant policies of the NZCPS. 67. At the very least, the consideration of cultural landscape features within the suite of attributes that constitute natural character would not be inconsistent with the inclusive list set out at Policy 13(2). 68. It therefore follows that a consideration of Natural Character will at times extend to the identification and mapping of cultural landscape features. 69. Elucidation has been provided on this matter by the Environment Court in the case of where Judge Smith made: some commentary around Policy 13 and whether aspects of cultural relationship may not be included under that policy. The words may include make it clear that Policy 13(2) is not intended to constitute an exhaustive list and other matters not inconsistent with those listed might also be included. Support for that interpretation is found by reference to Policy 14 which speaks of restoring cultural landscape features. If they can be restored under Policy 14 it seems only logical that they can be protected under Policy It is against this backdrop that it is submitted that while natural character is not the same as natural features and landscapes or amenity values, such matters might necessarily need to be considered in a natural character assessment 5 Ngati Makino Heritage Trust v Bay of Plenty Regional Council [2014] NZEnvC 125, [49] 8

10 71. It is within this context that the achievement of Objective 2 of the New Zealand Coastal Policy Statement becomes relevant which seeks to preserve the natural character of the coastal environment and protect natural features and landscape values through: recognising the characteristics and qualities that contribute to natural character, natural features and landscape values and their location. 72. What is becoming clear, even from the questioning that is emanating from the panel, is that the attributes that a Maori might look for in an assessment of what is natural might not align with what someone else might look for. 73. This is perhaps highlighted in the evidence of Ms Piatarihi Bennett and to some extent Mr Joe Te Kowhai who assert that the experiential impact of leaving the wreck where it sits would be much less adverse than it would be if it were removed. 74. These two divers advocate against an approach which would see the reef cleaned overzealously which they assert would diminish the naturalness that has developed in the area as the wreck has been claimed by Tangaroa. Conclusion 75. For the reasons set out above and the evidence supplied to this Panel by the witnesses for Te Arawa, the application for consent is supported Dated 17 day of September, 2014 Jason Pou 9