Maori board fails in appeal over mana whenua sites

High Court judge Ed Wylie ruled yesterday that the independent panel on Auckland’s unitary plan didn’t err in recommending the sites of value for mana whenua be deleted.

The Independent Maori Statutory Board appealed the deletion, but Justice Wylie rejected all the board’s appeal points.

Justice Wylie wrote in his decision yesterday: “In my judgment, the independent hearings panel was entitled to reach the conclusions and make the recommendations it did. It heard evidence from a large number of parties, both for & against retaining (&/or expanding) the overlay. It was for the panel as a specialist independent body to exercise its judgment in evaluating the evidence put before it at the hearings.

“It was open to the panel to recommend deletion of the sites of value to mana whenua overlay on the basis that, without evidence of mana whenua values that provided support for all of the sites in the schedule and in the overlay, the provisions as a whole lacked a sufficient evidential basis.”

When Auckland Council released its draft unitary plan in March 2013, it proposed 2 layers of protection for sites & places of Maori cultural heritage. The first contained a schedule of 61 sites of significance, and the second contained a Maori cultural heritage alert layer which would extend to about 9000 sites.

After feedback, the plan was amended in September 2013 and the second layer was reduced to 3600 sites. However, an error on the planning maps meant the radius of circled sites was doubled to 100m.

In evidence in 2015, the council told the independent hearings panel 2213 sites met the criteria of being Maori, had mana whenua values ascribed to them, and their location was confirmed. The council recommended another 1373 be removed from the schedule.

In March 2016, the council withdrew 593 sites, left 3007 scheduled, and said 2213 were considered to be of Maori origin, had cultural values for mana whenua and their locations had been confirmed.

However, the hearings panel decided to recommend to the council that it delete the schedule in its entirety “until the evidential basis for it has been assembled”.

When the council went through the final process on the plan, going through all the hearings panel’s recommendations and deciding whether to accept or reject them, staff recommended rejecting the panel’s deletion of the Maori places schedule.

The councillors, however, decided to accept the panel’s recommendations, which led the Independent Maori Statutory Board to appeal, eventually, on 9 points of law.

On each one, Justice Wylie found the hearings panel was entitled to reach the conclusion it did.

Auckland University environmental law associate professor Ken Palmer, who appeared on the appeal on his own account, argued that the council’s approach to the evaluation of sites of value to mana whenua didn’t follow the conventional approach, went beyond reasonable regulation and added a layer of complexity & uncertainty to the plan, placing an added burden on the owners of the affected private land.

If the council accepted a recommendation of the independent hearings panel, it didn’t have to give reasons. Justice Wylie accepted that point in dismissing the Independent Maori Statutory Board’s appeal.

Attribution: Judgment.

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