Not So Fast! The importance of early iwi consultation during the Fast-Track process

Te Taiwhenua O Heretaunga v Environmental Protection Agency Expert Consenting Panel [2025] NZHC 2397

The High Court has issued a judgment setting aside an Expert Consenting Panel's (Panel) decision to grant a resource consent under the COVID-19 Recovery (Fast-Track Consent Act) 2020 due to the incorrect approach to Te Tiriti o Waitangi/Treaty of Waitangi considerations. It has been remitted to the Panel for reconsideration in light of the High Court's decision.

The appeal arose from the RW and MC Gale Family Trust's (Trust) application to construct an aggregate quarry at Maraekākaho in the Hawke’s Bay (Project). The Trust's application was subsequently referred to the Panel for consideration under the COVID-19 Recovery (Fast-Track Consent Act) 2020 (2020 Act). The Panel granted the consent under the 2020 Act in a 152-page decision issued on 5 August 2024.

The Project's site lay within the rohe of hapū of Heretaunga Tamatea, represented by Te Taiwhenua o Heretaunga, a grouping of 14 marae. Te Taiwhenua o Heretaunga appealed the Panel's decision to grant consent for the Project. The Project involved a land-based aggregate extraction, which the Trust said was intended to meet urgent demand for aggregate in Hawke's Bay (due to the significant volume of raw materials needed to recover from Cyclone Gabrielle).

The central issue for the Court was whether the Panel correctly understood and applied section 6 of the 2020 Act, which states that any person performing functions or exercising powers under the Act "must act in a manner that is consistent with the principles of the Treaty of Waitangi and Treaty Settlements." Te Taiwhenua o Heretaunga claimed the Panel erred as it failed to identify and correctly apply the relevant Treaty principles, as well as failing to evaluate the environment effects of the project through a Treaty-based lens.

During the Panel's hearing process, the Panel stated the decision was "finely balanced" in favour of the Trust. It was noted that the Trust significantly reduced the scope of the Project, including reducing the area and depth of extraction and the volume of aggregate from 3.06 million cubic metres to 2.1 million cubic metres. While the Panel noted the Trust had failed to undertake early and meaningful engagement with mana whenua (who had significant concerns regarding effects on cultural values, cultural landscape and on mana whenua connection with the Site) it determined this lack of engagement was addressed through expanded consent conditions to provide for mana whenua input (and review obligations to respond to adverse effects identified by mana whenua). It considered this addressed the requirements of Te Tiriti o Waitangi/Treaty of Waitangi and with that, it was not required to declined consent.

Isac J distinguished these proceedings from Greenpeace Aotearoa v Hiringa Energy [2023] NZCA 672 (the leading authority on the effect of section 6 of the 2020 Act) as in Hiringa the two most affected hapū supported the application, whereas here, all affected Māori were unanimous in their view that the Project and process undertaken by the Trust were inconsistent with Treaty principles. Further, there was no early and meaningful engagement undertaken by the Trust (unlike Hiranga), signalling further inconsistency with Treaty principles. In deciding the section 6 criteria had not been met, Isac J concluded that:

1. The relevant Treaty principles were never identified or analysed against the relevant application materials by the Panel;
2. There was no real attempt by the Panel to grapple with the true effect of the proposal on mana whenua or how the conditions imposed met the requirements of the Treaty principles, particularly given the Panel's findings the Trust had failed to undertake pre-application consultation;
3. Despite the Panel concluding the balance was struck, no reasons were given for that why that was the case. Reasons are essential to the rule of law, particularly in the exercise of an important public power;
4. There is a distinction between conditions addressing “mana whenua concerns” or “cultural effects”, and an analysis of a proposal against the requirements of the principles of the Te Tiriti o Waitangi/Treaty of Waitangi. What the Panel was required to do in the present case was identify the relevant Treaty principles, identify any aspects of the proposal that were not consistent with those principles, and explain, even if briefly, why mitigation or off-setting matters, including the conditions, were sufficient to meet the bottom-line of the Treaty provision. That consideration is not evidence on the fact of the Panel's decision;

Ultimately, the conclusion was that unlike the assessment of environmental effects in general, the 2020 Act makes it clear that the Treaty clause is a positive limit on the power to grant a consent against which the entire application must be judged. The Treaty principles should not be subsumed within cultural effects. The actual and potential effects on the environment, any measure to offset or compensate for adverse effects and any other relevant consideration must be “viewed through the lens of the Treaty principles”. The 2020 Act, which aimed to provide a short-term consenting process to boost employment, productivity and economic recovery following the COVID-19 pandemic, was repealed in 2023. The Fast-Track Approvals Act 2024 (2024 Act) replaced the 2020 Act, with its purpose being to provide a permanent fast-track approvals regime to facilitate the delivery of infrastructure and development projects with significant regional or national benefits.

The 2024 Act does not require a Panel to act consistently with the principles of the Treaty of Waitangi and Treaty Settlements. Instead, it requires a Panel under the 2024 Act to act in a manner consistent with the obligations arising under existing Treaty settlements and customary rights recognised under the Marine and Coastal Area (Takutai Moana) Act 2011 and the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019.

While this case has focussed on section 6 of the 2020 Act, its findings regarding the need for Panels to sufficiently record reasons will equally apply under the 2024 Act.