"End use" effects off to the Court of Appeal
"End use" effects off to the Court of Appeal
Tuesday 5 October, 2021
Earlier this year, we reported on the High Court’s finding on whether the ‘end use’ of an activity could be considered in a resource consent application. Our article can be read at this link, but in summary, the High Court upheld the Environment Court’s finding that no, it was too remote to consider the end use of plastic bottles for a variation of a water take activity.
Te Rūnanga o Ngāti Awa (Ngāti Awa), Sustainable Otakiri Incorporated (SOI), Ngāti Pikiao Environmental Society Incorporated (Ngāti Pikiao) and Te Rūnanga o Ngāi Te Rangi Iwi Trust (Ngāi Te Rangi) (together, ‘the applicants’) recently sought leave to appeal the High Court’s judgement on 15 questions of law.
The Court of Appeal granted leave for the applicants to appeal on five of those 15 questions, with some rephrasing and regrouping to clarify which of the questions related to each of the applicants’ appeals.
The questions will ask whether the High Court’s approach and judgment on appeal was lawful when it made the following findings:
- the “end use” effects of plastic bottles were beyond the scope of consideration;
- it was unnecessary to file evidence on the scale of adverse effects from the end use of plastic bottles;
- recourse to Part 2 of the RMA was not necessary to consider cultural effects;
- the activity status of the associated, new land use consent was determined correctly; and
- section 127 was the correct statutory approach to assess the consent holder’s proposal to amend its existing consent.
SOI will be appealing on the majority of the questions.
The Court of Appeal declined leave for Ngāti Awa, Ngāti Pikiao and Ngāi Te Rangi to appeal their respective challenges relating to tikanga effects, Treaty rights and the conflation of Western science and te ao Māori worldview. The Court’s reasons to decline these challenges relied upon Takamore v Clarke, where the Supreme Court formed a view that only expert evidence or the Māori Appellate Court can consider what constitutes Māori custom; it would be inappropriate for other judiciaries to identify tikanga when their responsibility and expertise is to state the common law.
The consent holder and respondent, Creswell NZ Limited, will not be able to exercise its new and varied consents to expand its water bottling factory and take more water until the appeal is heard and determined by the Court of Appeal. This will also depend upon whether the Court of Appeal upholds the findings of the lower courts.
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