25 Ngati Kahungunu Iwi Incorported and the Heretaunga

BEFORE THE BOARD OF INQUIRY TUKITUKI CATCHMENT PROPOSAL

IN THE MATTER OF the Resource Management Act 1991 (the Act)

AND

IN THE MATTER OF of a Board of Inquiry appointed under section 149J of the Act to consider a plan change request, a notice of requirement and applications for resource consents made by the Hawke’s Bay Regional Council (HBRC) and the Hawke’s Bay Regional Investment Company (HBRIC) in relation to the Tukituki Catchment Proposal.

OPENING SUBMISSIONS OF COUNSEL FOR NGĀTI KAHUNGUNU IWI INCORPORATED AND THE HERETAUNGA PARTIES

15 JANUARY 2013

Solicitors PO Box 1654 Telephone: 04 495 9999 Facsimile: 04 495 9990 Counsel: J P Ferguson / K L Allan WELLINGTON

INTRODUCTION

1. These submissions are filed on behalf of:

(a) Ngāti Kahungunu Iwi Incorporated1 (NKII); and

(b) Te Taiwhenua o Heretaunga2 (TToH), Ngāti Hawea ki Matahiwi Marae (Matahiwi Marae)3, Waimarama Marae4, Operation Patiki (Kohupatiki Marae)5, Waipatu Marae (Ngāti Hawea, Ngāti Hori)6, Ruahapia Marae7 and Ngāi Te Upokoiri ki Omahu Marae8 (collectively referred to as the Heretaunga Parties).

2. The structure of these submissions is as follows:

(a) NKII and the Heretaunga Parties;

(b) Summary of position on overall Application;

(d) Plan Change 6:

 Position in reference to Plan Change 6

 Statutory requirements and tangata whenua

 National Planning Instruments and tangata whenua

 Consultation: purpose and key issues

 Consultation: HBRC the ‘meat in the sandwich’?

 Consultation: “through iwi authorities”

1 Submission #51; Submission #359. 2 Submission #67. 3 Submission #379. 4 Submission #196. 5 Submission #252. 6 Submission #395. 7 Submission #342. 8 Submission #357.

 Consultation: adequate information to make informed decisions?

 Summary

(e) RWSS:

 Position in reference to RWSS

 Water quality

 Planning conditions

(f) Comment on Tamatea Position

NKII AND THE HERETAUNGA PARTIES

Ngāti Kahungunu Iwi Incorporated

3. Ngāti Kahungunu has a population of approximately 62,000 members.9 Ngāti Kahungunu is the sole iwi recognised within the Tukituki Catchment Proposal area.10

4. NKII is the sole registered iwi authority for Ngāti Kahungunu and has 22,494 registered members.11 NKII is mandated to act for the beneficial interests of Ngati Kahungunu members and advocates, supports and represents the collective issues of the six Taiwhenua in the Ngāti Kahungunu Iwi rohe: Wairoa, Whanganui a Orotu, Heretaunga, Tamatea, Tamaki Nui-a-Rua and Wairarapa.

5. Each Taiwhenua has a representative on the NKII Board.

6. The Hawke’s Bay Regional Council (the HBRC) did not seek to engage with any representatives from NKII for the purposes of Plan Change 6.

9 Census New Zealand 2013. 10 Codlin, Evidence in Chief at [10.17]; Maaka, Evidence in Chief at [3]. 11 Māori Fisheries Act 2004, Schedule 4.

7. The Hawke’s Bay Regional Investment Company (the HBRIC) did not seek to engage directly with any representative from NKII for the purposes of the Ruataniwha Water Storage Scheme (RWSS).

Te Taiwhenua o Heretaunga (TToH)

8. TToH is a registered Charitable Trust having been incorporated under the Charitable Trusts Act 1957 on 19 September 1985 as the ‘Taiwhenua o Heretaunga Trust’ and changing its name to ‘Te Taiwhenua o Heretaunga Trust’ on 8 June 2007.

9. TToH was the first legally formed Taiwhenua in the Ngati Kahungunu rohe (area) and is the largest of the six Taiwhenua representing over 8,000 registered members. TToH has an asset base of approximately $11,813,000 and is comprised of 17 marae in the Heretaunga region.

10. TToH boundaries extend from the Ngaruroro River in the North, to Te Aute in the South, from Waimarama in the East to the Ruahine Ranges in the West. These boundaries are identified in Exhibit 58.

11. Mr Apaatu provides evidence for TToH that states the relationship of TToH to other Taiwhenua and NKII:12

Alongside natural affiliations to Ngāti Kahungunu, TToH is one of six (6) Taiwhenua who share a common charter that ensures that the Taiwhenua are able to participate in the shared governance of NKII. Each Taiwhenua is represented on the NKII Board and sector Rūnanga at the Iwi level, to participate in and contribute to Iwi-wide issues and developments. The role of NKII, in part, is to advocate for pan-iwi issues and support and represent the collective issues of the six Taiwhenua in the Ngāti Kahungunu rohe.

Ngāti Hawea ki Matahiwi Marae

12. Matahiwi marae is the marae located in the closest proximity to the Tukituki River and is approximately 500 metres from the Tukituki and within one kilometre from the mouth of the Tukituki River.13

12 Marei Apatu, Brief of Evidence, at [9]. 13 Refer to Tom Mulligan, Brief of Evidence, at [8].

13. The Tukituki River is a substantial source of food for the families of Matahiwi Marae, Ngāti Hori, Ngāti Hawea and the peoples of Ngāti Kahungunu.

14. Pursuant to the Fisheries Act 1996, Matahiwi Marae are entitled to distribute customary fishing permits at the Tukituki estuary and Tukituki River mouth for fish including Patiki (flounder), Kahawai, Mullet, Smelt and Whitebait.14

15. The Hawke’s Bay Regional Council (the HBRC) did not seek to engage with any representatives from Matahiwi Marae for the purposes of Plan Change 6.

16. The Hawke’s Bay Regional Investment Company (the HBRIC) did not seek to engage directly with any representative from Matahiwi Marae for the purposes of the Ruataniwha Water Storage Scheme (RWSS).

Waimarama Marae

17. Waimarama Marae is located approximately 25 kilometres south east of the mid-lower section of the Tukituki River (as identified in Exhibit 58).

18. Waimarama Marae is comprised of four hapū: Ngāti Kurukuru, Ngāti Hikatoa, Ngāti Te Whakaiti and Ngāti Ura-ki-te-rangi.

19. Te Aonohora is a direct descendant of the peoples of Waimarama, and Te Aonohora’s pa site was located directly on the Tukituki River.

20. The Tukituki River has sustained the peoples’ of Waimarama for generations as a source of food and a site of cultural significance.

21. The HBRC did not seek to engage with any representatives from Waimarama Marae for the purposes of Plan Change 6.

22. The HBRIC did not seek to engage directly with any representative from Waimarama Marae for the purposes of the RWSS.

14 Ibid, at [16] – [19].

Kohupatiki Marae

23. Kohupatiki Marae is located by the Ngaruroro and the Tukituki Rivers (as identified at Exhibit 58).

24. Kohupatiki literally means the marae that is in an abundance of flounder. Both rivers provided an important source of food, culture and livelihood for the peoples of Kohupatiki.

25. Kohupatiki Marae comes within the scope of Whanganui A Orotu Taiwhenua. Ngati Hori is a primary hapū of Kohupatiki Marae.

26. Kohupatiki Marae is the founding Marae of Operation Patiki. In 1969, the Hawke’s Bay County Council (predecessor to the HBRC) diverted the original trajectory of the Ngaruroro River that created the ‘Clive River’ and diverted the Ngaruroro River to its current location. The diversion had significant effects on the hydrology and aquaculture of the Ngaruroro River. Operation Patiki was established to assess the current quality of fish life, specifically Patiki (Black Flounder) within the Clive River (formerly known as the Ngaruroro River).

27. Operation Patiki was conducted in conjunction with the HBRC and supported by the Ministry of Primary Industries, the Department of Conservation, Hawke’s Bay District Health Board and NKII (amongst others).

28. Operation Patiki was one part of Kohupatiki reviewing freshwater management strategies in conjunction with partner organisations, local and central government.

29. Kohupatiki Marae also supported the development of the Ngati Hori Freshwater Resources Management Plan 2009/2012. Ngati Hori are the only Ngāti Kahungunu hapū that have a freshwater management plan. The cornerstone priorities of the freshwater management plan are:15

(a) achieving sufficient water flow;

15 Ngāti Hori Freshwater Resources Management Plan (2009/2012) , p 1.

(b) improving water quality;

(d) protection and restoration of fish and bird habitat.

30. Ngāti Hori are a hapū of Kohupatiki, Waipatu, Ruahapia and Matahiwi marae. These priorities therefore extend to all freshwater bodies within the Ngāti Hori rohe, including the Tukituki River.

31. The HBRC did not seek to engage with any representatives from Kohupatiki Marae for the purposes of Plan Change 6.

32. The HBRIC did not seek to engage directly with any representative from Kohupatiki Marae for the purposes of the RWSS.

Waipatu Marae

33. Waipatu Marae is located approximately five kilometres from Tukituki River (as identified at Exhibit [58]).

34. Ms Huata provides evidence on behalf of Waipatu Marae that states:16

Waipatu Marae of the hapū, Ngāti Hawea, Ngāti Hori and Ngati Hinemoa, is an integral part of the waters of the Tukituki Awa. The waters of Heretaunga have served and nourished Ngāti Hawea, Ngāti Hori and Ngati Hinemoa for centuries.

There are generation of history relating to baptisms in the rivers, hunting, fishing, swimming and living with our waters. These activities demonstrate how our lands and waters have provided for our spirituality, our sustenance, and our wellbeing.

35. The HBRC did not seek to engage with any representatives from Waipatu Marae for the purposes of Plan Change 6.

36. The HBRIC did not seek to engage directly with any representative from Waipatu Marae for the purposes of the RWSS.

16 Ngāti Huata, Brief of Evidence, at [9] – [10].

Ruahapia Marae

37. Ruahapia Marae is located approximately 8.4 kilometres from the Tukituki River (as identified at Exhibit 58). Ruahapia Marae is within the rohe of the hapū, Ngāti Hawea. Ngāti Hawea is directly linked to the four main rivers within the Heretaunga region: Tukituki, Ngaruroro, Karamū and Tūtaekurī.

38. Ruahapia Marae is named after an eel. Historically, the eel was a food source that would last Ruahapia Marae approximately six months of the year from the four main rivers. Ruahapia Marae would also harvest other fish from the rivers including Pātiki (Flounder) and Inanga (White bait). The river banks would provide important sources of rongoā (medicinal plants) and other forms of food including aruhe and fern root.

39. Pohatu Paku provide evidence for Ruahapia Marae that states:17

… Ruahapia Marae is no longer a place of mahinga kai and wai ora in a way it once was due to the changing nature of the Ngaruroro River over recent years. In contemporary times, our marae can now only rely on the sustenance provided by the Tukituki River such as tuna (eel).

40. The HBRC did not seek to engage with any representatives from Ruahapia Marae specifically for the purposes of Plan Change 6.

Ngāi Te Upokoiri ki Omahu Marae

41. Ngāi Te Upokoiri is a hapū that is comprised of marae within Te Taiwhenua o Heretaunga including Omahu Marae, Te Awhina Marae and Runanga Marae (as identified at Exhibit 58).

42. There are several sites of significance to Ngāi Te Upokoiri within the Tukituki Catchment Proposal area. Some of these pā sites were identified in the background section of the archaeological report prepared by Dr Simon Bickler including Te Whiti-o-Tu, Kihiao, Hakiuru and Ponapona. These sites have been identified by Mr Patrick Parsons who contributed to Dr Bickler’s report at Exhibit 17.

17 Pohatu Paku, Brief of Evidence, at [35].

43. The HBRC did not seek to engage with any representatives from Ngāi Te Upokoiri for the purposes of Plan Change 6.

44. The HBRIC did not seek to engage directly with any representative from Ngāi Te Upokoiri for the purposes of the RWSS.

SUMMARY OF POSITION

45. Freshwater management is critical to every single member of Ngāti Kahungunu.

46. NKII and the Heretaunga Parties support a co-ordinated and comprehensive approach to freshwater storage and freshwater management in the Hawke’s Bay region.

47. NKII and the Heretaunga Parties are committed to sustainable economic growth in the Hawke’s Bay’s primary industries including agriculture and horticulture.

48. NKII and the Heretaunga Parties are charged with a duty to advocate for the beneficial interests of their membership; of the 62,000 people that identify as Ngāti Kahungunu, many of these individuals are farmers and horticulturalists.

49. NKII, through its asset holding company, Kahungunu Asset Holding Company Ltd, owns one of the largest sheep and cattle stations in the North Island at 3980ha in Tautane (within the rohe of Te Taiwhenua of Tamatea).

50. Water storage is of critical importance to NKII and the Heretaunga Parties. As such, NKII and the Heretaunga Parties support an integrated approach to freshwater management that:

(a) enhances freshwater quality and quantity;

(b) protects and enhances native fish and bird populations;

(d) is transparent and has widespread support from the local community, including mana whenua;

(e) protects and preserves mahinga kai, waahi tapu; and

(f) enables mana whenua to exercise rangatiratanga and kaitiakitanga over areas of significance.

51. NKII and the Heretaunga Parties have engaged in an extensive review of the Tukituki Catchment Proposal. This review included:

(a) reviewing the scientific, social, environmental, recreational, archaeological and all other expert reports provided by the Applicant and other submitting parties;

(b) seeking clarification and opportunities to engage with the Applicant on matters of relevance;

(d) participating in the Board of Inquiry hearing process in order to understand the full scope of the Application.

52. NKII and the Heretaunga Parties are opposed to the Tukituki Catchment Proposal in its current form. In summary, this position is based on the following grounds:

(a) inadequacy of consultation;

(b) insufficient evidence to support the proposition that the Tukituki Catchment Proposal, and in particular the proposed nutrient management regime, will safeguard the life-supporting capacity, ecosystem processes and indigenous species including their associated ecosystems of fresh water, in sustainably managing the use and development of land, and of discharges of contaminants;

(c) insufficient evidence to support the proposition that water quality, water quantity and the ecological well being of the waterways within the Tukituki Catchment will be enhanced and protected;

(d) the proposed nutrient management regime is untested, highly contentious and based on the TRIM-Model developed by Dr Rutherford who, to his credit, has expressed that there are limitations to the TRIM-Model;18

(e) Plan Change 6 is the first of several catchment wide proposed amendments in the Hawke’s Bay region and will serve as a model for subsequent catchment amendments;

(f) Plan Change 6 does not contain any specific conditions for monitoring cultural values, including mauri, or make any provision for mana whenua to exercise their kaitiakitanga obligations;

(g) the resource consent applications for the RWSS do not contain any conditions for mitigating or off-setting the effects of the RWSS on the matters of concern to NKII and the Heretaunga Parties in the lower Tukituki Catchment.

APPROACH TO THE APPLICATION

53. NKII and the Heretaunga Parties agree with the proposed approach to determining the application as stated by counsel for the Applicant in Opening Submissions:19

[w]hile Change 6 and the RWSS are part of an integrated proposal, the applicants’ submission is that the Board of Inquiry must approach the decisions it has to make sequentially: determining the shape and content of Change 6 before moving on to consider whether the RWSS resource consent applications should be granted, and the Notice of Requirement confirmed, and if so on what terms.

18 A comprehensive analysis on the TRIM-Model and Dr Rutherford’s position is eloquently summarised in the Opening Submissions of Counsel for the Hawke’s Bay Fish and Game Council at [7]. 19 Applicant, Opening Submissions, at [6].

54. These submissions therefore consider Plan Change 6, before considering the resource consents for the purposes of the RWSS.

PLAN CHANGE 6

Position in reference to Plan Change 6

55. The Heretaunga Mana Whenua Parties support an integrated managements approach to freshwater quality and quantity limits. This includes the proposal to set limits that would preclude over-allocation of fresh water, and aligns with the National Policy Statement on Freshwater Management 2011 (NPSFM).

56. On careful consideration of the legal submissions, the briefs of evidence, rebuttal evidence, expert conferencing, cross-examination and the revised Plan Conditions, NKII and the Heretaunga Parties are concerned that proposed Plan Change 6 will have a counter- beneficial effect on freshwater management in the Tukituki Catchment area, and will not achieve the objectives of the NPSFM.

57. The HBRC state that Plan Change 6 was developed to address various water quality considerations in the Tukituki Catchment.20 The HBRC identify three “key issues” that Plan Change 6 is to address within the Tukituki Catchment:21

(a) Excessive growths of algae and slime (or periphyton), particularly in the lower Tukituki River during the summer months coinciding with low river flows when the river is most highly valued by people of Hawke’s Bay, including swimming, fishing and passive recreation, and with accompanying adverse effects on its habitat and cultural values;

(b) Inadequate physical habitat and habitat quality during low river flows, impacting on the significant trout fishery, particularly in the lower river, and on the native fishery; and

20 HBRC, Opening Submissions, at [17] and [22]. 21 Ibid, at [17]; HBRC, Section 32 Evaluation Summary Report, at [2.1]

58. Notably, two of these three concerns primarily concern the Lower Tukituki River.

59. Plan Change 6 is described as “one element of an overall strategy to improve environmental, social, cultural and economic outcomes in the Tukituki Catchment, in the Central Hawke’s Bay District and for the Hawke’s Bay overall”.22

60. Plan Change 6 is intended to ensure that an “integrated approach” to freshwater management is being given effect to in the Hawke’s Bay region.23

61. While NKII and the Heretaunga Parties recognise and endorse the statutory requirements of an integrated approach to freshwater management, concerns remain that there are fundamental statutory obligations and duties that the HBRC as the local authority are required to meet specific to Plan Change 6, and as distinct from the resource consents required for the RWSS.

62. While an integrated approach to freshwater management within the Hawke’s Bay region is required at an implementation level, it does not follow that the regulatory and statutory obligations imposed on the local authority diminishes the regulatory and statutory duties of the HBRC with respect to Plan Change 6.

Statutory requirements and tangata whenua

63. In Opening Submissions, Counsel for the HBRC set out the statutory requirements for Plan Change 6.24

22 HBRC, Section 32 Evaluation Summary Report, at [1.1]. 23 Codlin, Brief of Evidence, at [10.11] 24 HBRC, Opening Submissions, at [119] – [136].

64. NKII and the Heretaunga Parties adopt the summary of the statutory framework summarised by counsel for the Environment Defence Society in Opening Submissions at paragraphs [12] – [27].

65. In addition, NKII and the Heretaunga Parties also refer the Board to the specific statutory obligations on a local authority to consult tangata whenua. Schedule 1, clause 3 of the RMA imposes statutory requirements on a local authority to consult on proposed amendments to a regional policy statement or plan. Schedule 1, cl 3(1)(d) requires a local authority to consult with tangata whenua "through iwi authorities".

66. An iwi authority is defined as, “the authority which represents an iwi and which is recognised by that iwi as having authority to do so”.25

67. Local authorities also retain discretion to consult with “anyone else” on proposed plan changes (which can include Taiwhenua and/or other community organisations).26

68. Section 35A(1) requires local authorities to keep and maintain the contact details of each iwi authority within the region or district and any groups within the region or district that represent hapū for the purposes of the RMA. Section 35A(2) requires the Crown to provide local authorities with information on the iwi authorities within a region, “and any groups that represent hapū for the purposes of [the RMA]”. To fulfil this statutory requirement, the Crown through Te Puni Kokiri, administer the website, 'Te Kahui Mangai’.

69. Schedule 1, cl 3B provides the specific statutory requirements of consultation “with iwi authorities”. Essentially there are five requirements that a local authority must satisfy:

(a) consider ways in which it may foster the development of their capacity to respond to an invitation to consult;

(b) establish and maintain processes to provide opportunities for those iwi authorities to consult it;

25 Resource Management Act 1991, s 2. 26 Ibid, Sch 1, cl 3(2).

(d) enable those iwi authorities to identify resource management issues of concern to them; and

(e) indicate how those issues have been or are to be addressed.

National Planning instruments and tangata whenua

70. Plan Change 6 must give effect to the NPSFM in the Tukituki Catchment Area.27 Plan Change 6 must give effect to objectives A1 and B1 that address water quality and water quantity. NKII and the Heretaunga Parties endorse the submissions of Mr Enbright, Counsel for the Environment Defence Society, in reference to these objectives at paragraphs [17] – [24] of Opening Submissions.

71. In addition, Plan Change 6 must give effect to Objective D1 which provides for Tangata Whenua roles and interests in freshwater management:

Objective D1 To provide for the involvement of iwi and hapu, and to ensure that tangata whenua values and interests are identified and reflected in the management of fresh water including associated ecosystems, and decision-making regarding freshwater planning, including on how all other objectives of this national policy statement are given effect to. [Emphasis added]

Policy D1 Local authorities shall take reasonable steps to: a) involve iwi and hapū in the management of fresh water and freshwater ecosystems in the region; b) work with iwi and hapū to identify tangata whenua values and interests in fresh water and freshwater ecosystems in the region; and c) reflect tangata whenua values and interests in the management of, and decision-making regarding, fresh water and freshwater ecosystems in the region. [Emphasis added]

72. The Preamble may assist the interpretation of the NPSFM28 and relevant provides:

27 Resource Management Act 1991, s 67(3)(a). 28 NPSFM, Preamable, p 5.

The Treaty of Waitangi (Te Tiriti o Waitangi) is the underlying foundation of the Crown–iwi/hapū relationship with regard to freshwater resources. Addressing tangata whenua values and interests across all of the well-beings, and including the involvement of iwi and hapū in the overall management of fresh water, are key to meeting obligations under the Treaty of Waitangi. [Emphasis added]

73. Policy D1(a) of the NPSFM requires a local authority to take reasonable steps to ensure that iwi and hapū are engaged in the management of freshwater and freshwater values. Policy D1(c) requires that tangata whenua values are reflected in the decision making and management of freshwater values.

74. Mr van Voorthuysen acknowledged that cultural uses were premised on the identification of cultural values. Despite this, there is no reference to cultural values, as identified by tangata whenua, within Plan Change 6.29

75. Mr van Voorthysen also acknowledged there were only two references within the entire Plan Change that relate to cultural matters: TT1(e) refers to the cultural value of ‘mauri’ and TT13(g) refers to ‘cultural uses’.

76. In addition, cultural monitoring functions, including reporting to tangata whenua of the effects of the Plan Change 6 have not been included within Plan Change 6.

77. Mr van Voorthuysen states that whilst cultural monitoring is important, Plan Change 6 takes a “contemporary approach” and monitoring functions are not specified within the Plan Change, but will be contained in a separate monitoring document.

78. With respect to Mr van Voorthuysen’s approach, this is in stark contrast to contemporary approaches that have been introduced to give effect to the NPSFM in other regions (and that Mr van Voorthysen has been engaged on).

79. For example, Variation 6 to Chapter 3 of the Waikato Regional Plan is a contemporary Plan Change that gives effect to the NPSFM.

29 Transcript, p 974, at line 32.

Variation 6 inserted new sections 3.3 and 3.4 to Chapter 3, (the Freshwater Module), that provide an exemplary approach to giving effect to the Objective D of the NPSFM.30

80. The HBRC have consistently stated that Plan Change 6 is the first of several catchment wide amendments for the purposes of land and water management.

81. In order for the HBRC to satisfy Objective D of the NPSFM, there must be clear objectives and policies that apply to each catchment specific Plan Change acknowledging the relevant cultural values of each iwi and hapū within the catchment area. The Cultural values and uses need to be tailored to the specific needs and requirements of each catchment, as the HBRC has developed Plan Change 6 to apply specifically to the Tukituki Catchment Area.

New Zealand Coastal Policy Statement 2010

82. Objective C1 of the NPSFM requires a local authority to improve the integrated management of freshwater within a whole-of-catchment area, including the coastal environment. The effects of Plan Change 6 on the receiving coastal environment must be considered within the context of the New Zealand Coastal Policy Statement 2010 (NZCPS).

83. In addition to matters raised in the submissions of the Environmental Defence Society on the NZCPS, NKII and the Heretaunga Parties further submit that Plan Change 6 should give effect to Objective 3, particularly “recognising and protecting characteristics of the coastal environment that are of special value to tangata whenua.”

84. Policy 2(a) requires decision makers to recognise that tangata whenua have traditional and continuing cultural relationships with areas of the coastal environment, including areas where they have lived and fished for years. Policy 2(b) requires local authorities to “undertake effective consultation” in an early and meaningful way. Policy 2(f) provides that local authorities provide opportunities for tangata whenua to exercise kaitiakitanga over waters, lands and

30 Exhibit RvV R1, Rebuttal Version updated 26 November 2013.

fisheries within the coastal environment through monitoring and management.

85. Mr Mulligan, Mr Barber, Ms Huata, Mr Pohatu, Mr Apatu, Mr Tomoana and Dr Whyte each provide evidence that the HBRC has not sought to engage with the marae or hapū in the lower Tukituki area, with respect of the effects of Plan Change 6 on cultural values, including the coastal environment.

Consultation: purpose and key issues

86. Consultation is a well-traversed issue in resource management matters. The leading case on consultation principles is Wellington International Airport Ltd v Air New Zealand.31

87. Consultation with iwi is recognised as important to enable decision- makers to understand the cultural effects of an activity, particularly as regards the matters falling within sections 6(e), 7(a) and 8 of the RMA.32

88. In Waikato Tainui Te Kauhanganui Inc v Hamilton City Council,33 Allan J was required to consider consultation with an iwi authority for the purposes of Schedule 1, clause 3(1)(d) RMA. In summary, and applying the Wellington International Airport Ltd principles (amongst other authorities), Allan J found that the following principles:

(a) the primary purpose of consultation is to enable decision makers to make informed decisions;34

(b) consultation with Maori is two-fold: 35

31 [1993] 1 NZLR 671. 32 New Zealand King Salmon Application, Board of Inquiry Final decision, 22 February 2013, at [191]. 33 [2010] NZRMA 285 (HC). 34 Ibid, at 295, per Allan J. 35 A080/02, 17 April 2002 at [243] (citing Minister of Corrections v Northland Regional Council EnvCt A074/02, 8 April 2002 at [547]) and as cited in Waikato Tainui Te Kauhanganui Inc v Hamilton City Council [2010] NZRMA 285 (HC), per Allan J at 295.

(i) the recognition limb - recognition of the rights of Maori under the Treaty of Waitangi as a party which has a right to be consulted; and

(ii) the information limb – obtain appropriate and accurate information on the potential effects on affected Maori.

(d) consultation is a two-way process to be conducted in mutual good faith;37

(e) The preparation process concludes at the time of notification of the proposed plan. The Schedule 1, cl 3 consultation obligation, which must be taken during the preparation of a proposed plan, must occur prior to public notification. 38

Consultation: HBRC as the ‘meat in the sandwich’?

89. HBRC through its legal counsel39 and HBRIC through the consultation services of Mr Daysh40 have expressed concerns that both entities fear being the ‘meat in the sandwich’ between Māori groups with competing interests in RMA matters.

90. With respect to this submission, NKII and the Heretaunga Parties do not dispute, or make claims to, competing interests with any other Maori groups with interests in the Tukituki Catchment Area. This is explicitly expressed in the evidence of Mr Tomoana and Dr Whyte of behalf of NKII,41 and provided for in the in the NKII submission on the Proposal:42

This submission does not intend to exclude or undermine any other Ngāti Kahungunu responses or submissions to the Tukituki

36 n 26, citing McGechan J in the HC proceedings. 37 Rural Management Ltd v Banks Peninsula District Council [1994] NZRMA 412; Ngāti Kahu v Tauranga District Council [1994] NZRMA 481 at 509. 38 n 25, per Allan J at 295. 39 HBRC, Opening Submissions, at [172]. 40 Transcript, at 1138, line 33. 41 Mr Tomoana and Dr Whyte, Brief of Evidence, at [103] and [105]. 42 Submission 359, at [5].

Catchment Proposal. Ngāti Kahungunu Iwi [Incorporated] encourages greater involvement of our constituent hapū and their interests in resource planning around water.

91. The core contention of NKII and the Heretaunga Parties is that the HBRC has failed to adequately consult with all of the relevant effected mana whenua within the Tukituki Catchment Area, and subsequently the HBRC has failed to adequately consider the effects of Plan Change 6 on NKII and the Heretaunga Parties.

Consultation: “through iwi authorities”

92. Schedule 1, cl 3(1)(d) requires a local authority to consult with tangata whenua "through iwi authorities". An iwi authority is defined as, “the authority which represents an iwi and which is recognised by that iwi as having authority to do so”.43

93. In contrast to Schedule 1, cl (3)(2) where a local authority “may” consult with anyone else, Schedule 1, cl 3(1)(d) imposes a strict obligation on the local authority to consult with tangata whenua, “through iwi authorities”. The consultation requirement turns on the word, “through”.

94. The HBRC contend that they maintain a spreadsheet of iwi authorities, hapū and marae for the purposes of s 35A. 44 Ms Codlin stated that the spreadsheet record does not provide the details of whom HBRC is required to consult with as the iwi authority for the purposes of Schedule 1, Cl 3(1)(d). Notably, this document was not produced.

95. In Ms Codlin’s brief of evidence, she notes that HBRC did not seek to consult with tangata whenua through NKII as the iwi authority for the purposes of Plan Change 6. Instead, HBRC determined of its own accord to engage solely with Taiwhenua as, “it was better to engage with this level as opposed to the broader ‘iwi’ level that NKII speaks for”.45

43 Resource Management Act 1991, s 2. 44 Transcript, p 122, line 19. 45 Codlin, Brief of Evidence , at 10.19.

96. In addition, HBRC relies on the contentions of Professor Maaka that, “Ngāti Kahungunu Iwi Incorporated does not represent Te Taiwhenua o Tamatea.”46

97. With respect to these submissions, the statutory obligation of whom a local authority is legally obliged to consult with does not rest upon the contentions of any individual that may or may not be satisfied with the statutory requirements imposed on a local authority. Nor does the Act contemplate that a local authority may exercise a discretionary approach to determine the iwi authority for the purposes of Schedule 1, cl 3B.

98. Mr Newman, in reference to the Tukituki awa (presumably Plan Change 6) and the RWSS, also acknowledged that HRBC had determined to engage with Taiwhenua as opposed to the iwi authority.47

99. Ms Codlin and Mr Newman’s statements support the proposition that the decision to engage with Taiwhenua on Plan Change 6 (and the RWSS) was at the sole discretion of HBRC.

100. When the Proposal was called in, the Te Kahui Mangai website listed NKII as the iwi authority for the purposes of the RMA.48

101. While a broad discretion is available to a local authority to consult any individual or entity that it may consider appropriate to do so49 (including Taiwhenua or any Maori entities), the positive legal obligation to consult with tangata whenua, “through iwi authorities” remains.

102. Ms Codlin stated in her rebuttal evidence that Te Kahui Mangai lists NKII as a "representative organisation" for the purposes of the RMA.

46 HBRC, Opening Submissions, at [176]. 47 Newman, Letter to NKII, 17 April 2013 as referenced in the Brief of Evidence of Mr Tomoana and Dr Whyte at [93]. 48 Te Puni Kokiri, Te Kahui Mangai, (accessed on 6 October 2013). 49 Resource Management Act 1991, Sch 1, cl 3(2).

Under cross-examination, Ms Codlin accepted that NKII are the ‘iwi authority’ listed in Te Kahui Mangai for the purposes of the RMA.50

103. In her rebuttal evidence, Ms Codlin goes on to refer to italicised subtext on Te Kahui Mangai website. However, it is also important to consider the paragraph which precedes the italicised quote to which Ms Codlin referred:51

Ngāti Kahungunu Iwi Inc represents Ngāti Kahungunu as an "iwi authority" for the purposes of the Resource Management Act 1991.

Note, however, that resource issues at a local level are handled directly by the relevant Ngāti Kahungunu Taiwhenua. See the website given below for contact details of the six Tai whenua.

104. While it appears that Ms Codlin on behalf of the HBRC have relied on the italicised subtext as authority to sidestep direct consultation with NKII on Plan Change 6, it should also be noted that Ms Codlin also failed to consider the following additional text on the Te Kahui Mangai website:52

The rohe of Ngāti Kahungunu is divided into six taiwhenua. These six taiwhenua are provided for ease of navigation on Te Kāhui Māngai. They do not imply any representative status. [Emphasis added]

105. The HBRC also appear to submit that engagement with a Regional Planning Committee is a possible alternative for engaging with NKII as the iwi authority on resource management matters.53

106. With respect, the Regional Planning Committee referred to is a joint planning committee for the purposes of Schedule 7, Local Government Act 2002 (the LGA). Engagement with an HBRC- established committee for the purposes of the LGA can not be considered engagement with tangata whenua “through an iwi authority” for the purposes of Schedule 1, cl 3B.

50 Transcript, p 122, line 14. 51 Ibid. 52 Te Kahui Mangai, www.tkm.govt.nz/iwi/ngati-kahungunu/# (accessed on 6 October 2013). 53 HBRC, Section 32 Evaluation Summary Report for Proposed Change 6: Tukituki River Catchmentm, p 6.

107. While a broad discretion is available to a local authority to consult any individual or entity that it may consider appropriate to do so54 (including Taiwhenua or any Maori entities), the positive legal obligation to consult with tangata whenua, “through iwi authorities” remains.

Consultation: adequate information to make informed decisions?

108. HBRC through the Evidence-in-Chief of Ms Codlin submits that it acquired adequate information to assess the effects of Plan Change 6 on NKII and the Heretaunga Parties through:

(a) a meeting with Te Taiwhenua o Heretaunga on 24 September 2012 as part of the Tukituki Choices process; and55

(b) the ‘Tukituki River Catchment Values and Uses’ (CVU Report) report co-ordinated and drafted by Dr Benita Wakefield.

109. Notably, Ms Codlin did not include any reference to the Mana Whenua Working Group as consultation for the purposes of Plan Change 6. The Mana Whenua Working Group is addressed in the evidence of Mr Daysh in reference to the RWSS.

110. While the RMA does not provide scope for a local authority to exercise discretion as to whom the iwi authority is for the purposes of Schedule 1 consultation, it is nevertheless useful to consider whether there is adequate information before the decision-maker to make an informed decision on the effects of Plan Change 6 on the marae and hapu in the lower Tukituki Catchment Area.

111. In determining whether there is adequate information before the Board, NKII and the Heretaunga Parties have also considered the expert reports and evidence of Dr Hayes, Dr Young, Dr Corneilson and Ms Madarasz-Smith for the purposes of determining the effects of Plan Change 6 on cultural values, particularly kaitiakitanga, mauri

54 Resource Management Act 1991, Sch 1, cl 3(2). 55

and maahinga kai (including habitat, native fish, and the coastal environment).

24 September 2012 Meeting

112. The meeting referred to by HBRC as a meeting for the purposes of consultation was not a meeting between the iwi authority and HBRC for the purposes of considering the effects of Plan Change 6 on marae and hapū within the Tukituki Catchment.

113. Exhibit 25 tabled by Mr Daysh states that the 24 September 2012 meeting was attended by members of HBRC, NKII and the Minister of Maori Affairs, including his political advisors. This meeting was clearly one where HBRC made a presentation for the purposes of political engagement, not consultation.

114. Consultation must be more than a mere presentation.56 Dr Whyte will address the nature of this meeting in more detail.

115. It is submitted that this meeting should not be considered consultation on Plan Change 6.

Tukituki River Values and Uses Report

116. The CVU identifies a range of broad resource management issues of relevance to tangata whenua within the Tukituki Catchment Area, including:

(a) Ecological health of the Tukituki River Catchment area needs to reflect the values, knowledge, whakapapa and spiritual relationships mana whenua have with the land and water within the Tukituki Catchment Area;57

56 Air New Zealand Ltd and Ors v Wellington International Airport CIV-2007-485- 1756, 9 October 2008 at [59]. 57 Wakefield et al, Tukituki River Catchment Values and Uses, June 2012 at 5.

(b) Marae and hapu are the katiaki of their turangawaewae, rohe, takiwa;58

(d) Marae and hapu seek to exercise their duties of kaitiakitanga through “monitoring, management and policy development of the Tukituki River Catchment in particular”;60

(e) Planning provisions need to be implemented to give effect to Maori environmental outcomes;61

(f) Tangata whenua within the Tukituki Catchment Area need to express their relationship and values within the Tukituki River catchment area through cultural values including mauri, mana whenua and kaitiakitanga;62

(g) Tangata Whenua within the Tukituki Catchment Area seek to sustainably manage all taonga species within the Tukituki Catchment area including fish, birds and natural ecosystems;63

(h) Preservation of maahinga kai including native fish species and biodiversity;64

(i) Preservation of waahi tapu and taonga;65

(j) Heretaunga hapu are entitled to be equal partners at all levels of engagement, are entitled to be decision-makers for the future, and have guardianship of the rivers and lands within the Tukituki Catchment Area;66

58 Ibid. 59 Ibid. 60 Ibid. 61 Ibid. 62 Ibid. 63 Ibid, at 28. 64 Ibid, at 30. 65 Ibid. 66 Ibid, p 43.

(k) Changes to mauri in any part of the Tukituki Catchment area through misuse or over harvesting could have adverse effects on the whole Tukituki catchment Area;67

(l) Maahinga kai have been effected, including a reduction of native fish species, which the tangata whenua have attributed to an increase in “agricultural runoff, pollutants impacting on water quality and the over allocation of water take which has resulted in many of the small streams drying up”;68

(m) Heretaunga hapu seek to be involved at all levels of the process to ensure that the Maori world view is represented;69

(n) There are site specific waahi tapu in the vicinity of the RWSS, including the Te Whiti o Tu Pa site that took place along the corridor/passage in the Makaroro sub-catchment that links with the Waipawa River.70

117. Recommendations within the CVU include:

(a) Heretaunga marae/hapu be provided an on-going role in governance, management and monitoring of the Tukituki River, the RWSS and other developments in the Tukituki catchment, in order to uphold the mana of Heretaunga;

(b) Marae/hapu of the Tukituki River have a role in governance, management and monitoring of the Tukituki River;

(c) Future modifications and planning for the Tukituki River adopt a ‘whole-of-takiwa’ takiwa, and mauri model approach as guidelines;

(d) A Heretaunga hapu ‘Red Bridge to Waipureku’ mauri-based river strategy be initiated and implemented in partnership with the HBRC. This is to be inclusive of a whole-of-takiwa gravel

67 Ibid, p 46. 68 Ibid, p 51. 69 Ibid, p 55. 70 Ibid, p 56.

extraction plan, species monitoring and mahinga kai protection; and

(e) Cultural artefacts or material found are to be returned to NKII (a registered holder of antiquities).

118. Notably, the CVU Report assesses the individual marae within the Upper Tukituki region, but this similar assessment has not been included for the marae and hapu within the Lower Tukituki area.

119. In addition, it is also noted that the CVU report does not identify the express issues specific to the Lower Tukituki, including the increased effects of algae on mahinga kai and processes for mitigating those effects.

120. While HBRC state that Te Taiwhenua o Tamatea has been engaged in all salient stages through the evolution of the RWSS, Professor Maaka acknowledged that whilst Te Taiwhenua o Tamatea engaged in discussions with HBRIC in reference to the RWSS, Te Taiwhenua o Tamatea did not seek to engage with the HBRC specifically in reference to Plan Change 6. Professor Maaka also acknowledged that Te Taiwhenua o Tamatea would not be opposed to the inclusion of specific objectives and policies within Plan Change 6 for the benefit of tangata whenua within the Tukitukli Catchment Area. 71

121. NKII and the Heretaunga Parties submit that additional objectives and policies should be drafted to reflect Objective D1 of the NPSFM, and Objective 2 of the NZCPS.

Addition expert reporting: Native Fish and Bird species

122. Red Bridge is in the lower Tukituki Catchment.

71 Transcript, 2354 at line 34.

123. Dr Hayes observed that there is a 70 per cent retention rate of native fish populations at Red Bridge at minimum flow-conditions. Dr Hayes describes these conditions as “pretty risky for fish populations”.72

124. Dr Hayes considers that an 80 per cent habitat retention below Red Bridge is an acceptable target for adult trout. Dr Hayes does not, however, provide an analysis for habitat retention of native fish species based on the proposed minimum flow levels.

125. Through the course of responding to questions from the Chairperson, Dr Hayes appeared to submit that the 80 per cent retention was based on the optimum levels for trout fish, and that this retention rate would be based on the consumption of native fish species in the lower Tukituki region.

126. This presumption is of direct consequence to the marae and hapu within the lower Tukituki River. The setting of these limits enables maahinga kai, taonga (native fish species) and native fish within the coastal marine environment to be effected.

127. In order to provide comprehensive findings, Dr Hayes agreed that more robust data on fish species within the Tukituki Catchment was required.73 Dr Hayes further acknowledged that “our science underpinning [the assessment of habitat for a particular site] is not very good. It’s very coarse.”

128. It is submitted that there is inadequate information on native fish habitat in the lower Tukituki to accurately assess the effects of the proposed minimum flow levels on the Lower Tukituki Catchment, and in particular the effects that the proposed limits will have on marae and hapu in the lower Tukituki Catchment area.

Addition expert reporting: Coastal Effects

129. In addition to the Tukituki River, the lower Tukituki marae and hapu exercise their kaitiaki obligations to the Tukituki estuary and coastal environment at the Tukituki River mouth.

72 Transcript, 432 at line 23. 73 Transcript, 441, at line 1

130. Mr Mulligan provides evidence that he is appointed as a tangata kaitiaki with responsibility for allocating customary fishing permits for the purposes of the Fisheries Act 1996.

131. Dr Corneilson provided evidence that he had not conducted any monitoring of the current estuary environment for the purposes of his analysis of the effects of Plan Change 6 on the Coastal Environment:74

I limited my assessment solely to the effects of nutrient loading on the marine environment beyond the estuary.

132. Dr Corneilson observed that although he “had some good data sets, but not the sorts of data sets you would want to move forward to if you were going to go through with this Plan Change”.75 Dr Coreneilson recommended securing further data in terms of coastal monitoring before Plan Change 6 was to progress.76

133. Ms McArthur provides evidence that:

Water quality in the Tukituki catchment contributes to the quality of water in the coastal environment, particularly within the river estuary. Conditions in the estuary and near coastal waters currently indicate occasional eutrophic conditions through elevated planktonic algae in seawater and growth of macro-algae on estuary sediments. Increasing contaminant loads (in particular nitrogen, phosphorus and sediment) increases the risk of eutrophic effects on coastal ecosystems, with resultant effects on recreational values.

134. Ms Mc Arthur provides evidence that eutrophic effects were evident in the South arm of the Estuary.77 Ms Madaraz-Smith confirmed that this growth was Ulva growth, a nuisance form of algae.78 Ms Madarasz- Smith further acknowledged that HBRC had not conducted any monitoring on macro algal growth in the lower Tukituki and for the purposes of data sets of Plan Change 6.79

74 Transcript, 484, at line 75 Transcript, 487 at line 23. 76 Dr Conreilson, Evidence in Chief, para [6.2]. 77 McArthur, Evidence in Chief, at [47]. 78 Transcript, 466, at lines 22 – 26. 79 Transcript, 467, line 15.

135. Dr Corneilson acknowledged that he was not aware that there was any evidence of eutrophic effects in the Estuary when he prepared his Coastal Effect report.80 Ms Madarsz-Smith accepts that assessing the density of algal growth in estuarine areas is becoming more important in terms of a monitoring tool.81

136. Ms Madaraz-Smith accepted that the mouth of the Tukituki River, between the estuary and the open receiving coastal environment, had become blocked by gravel and other build-up to the extent that the River mouth had to be mechanically opened up to 10 times within a one year period.82

137. The effects of nuisance Ulva growth within the Tukituki catchment has not been assessed to determine the impacts on the broader ecosystems within the estuary, including on native fish species and maahinga kai.

138. Mr Apatu, Ms McGuire and Mr Mulligan give evidence to the effect that native fish populations in the lower Tukituki are diminishing. The CVU also makes extensive reference to diminishing aquaculture in the lower Tukituki, including Inanga, Smelt and Patiki (Black Flounder).

139. Despite the increase of perphyton growth in the lower Tukituki, and the evidence of the Heretaunga Parties that the native fish species populations are declining in quantity and size, no monitoring conditions have been included for the purposes of the marae and hapu in the Lower Tukituki Area.

Consultation: Summary

140. While HBRC has engaged a unique manner to engage with Māori representatives in certain spheres, HBRC has developed this approach in and of their own accord, and without the engagement of the iwi authority. In addition, PC 6 has wide stretching effects of hapū

80 Transcript, 487, line 5. 81 Transcript, 467, lines 15 – 18. 82 Transcript 461, line 8.

and marae throughout the Ngāti Kahungunu catchment. As Exhibit 58 shows, marae are effected from four taiwhenua (Tamaki-Nui-A-Rua, Tamatea, Heretaunga, Whanganui A Rotu). The precise role of NKII is to engage on pan-iwi issues.

141. NKII and the Heretaunga Parties submit that HBRC has failed to consult with the iwi authority, as required for the purposes of Schedule 1, cl 3, and that this failure has resulted in inadequate information being available to the decision-maker to make an informed decision on the effects of Plan Change 6 on NKII and the Heretaunga Parties.

142. NKII and the Heretaunga Parties submit that:

(a) there is inadequate information before the Board to assess the effects of the proposal on the lower Tukituki marae and hapu;

(b) Dr Hayes provides evidence that the habitat data available for considering minimum flows is inadequate and “coarse”;

(c) Dr Corneilson accepts that he was unaware that Ulva was growing in the estuary, or that the river mouth becomes blocked of up to period of 10 times per annum;

(d) Ms Madarasz-Smith accepts that the HBRC have not monitored the estuary environment;

(e) Mr Mulligan, Mr Pohatu and Ms McGuire observe that the quality and quantity of maahinga kai, and taonga including native fish species are declining in quantity and size; and

(f) the Lower Tukituki River will be affected by the proposed single nutrient management scheme more than any other part of the Catchment Area and the effects of the increased nutrients on cultural values must be specifically assessed.

143. For completeness, NKII and the Heretaunga Parties observe that the Independent Planners, Final Planners Report January 2014 (the independent planning report), comes to an inconclusive end point

as to whether or not the consultation requirements for the purposes of Schedule 1 have been complied with.83

RWSS RESOURCE CONSENTS

Summary of Position

144. NKII and the Heretaunga Parties oppose the grant of the RWSS on its current terms on the grounds that:

(a) there is no adequate assessment of the effects of RWSS on issues of concern to the lower Tukituki marae and hapu or provision for ongoing monitoring;

(b) the resource consent applications for the RWSS do not contain any conditions for mitigating or off-setting the effects of the RWSS on the matters of concern to NKII and the Heretaunga Parties in the lower Tukituki Catchment;

RWSS and water quality

145. As counsel for EDS has succinctly provided, the Applicant relies on TRIM-model predictions to determine that the proposed limits in Plan Change 6 will be achieved if the RWSS proceeds. The Parties endorse and adopt the Opening Submissions of counsel for EDS in reference to the RWSS and TRIM-modelling from [93] – [107].

146. In addition, the Parties submit that HBRIC has failed to provide certainty that the RWSS will support sustainable management of endangered native fish populations, particularly in the lower Tukituki River, and the receiving coastal environment.

83 Hill, Young, Cooper ‘Tukituki Catchment Proposal: Planning review of amendments to Change 6’, January 2014.

Resource Consent conditions

147. NKII and the Heretaunga Parties have had an opportunity to review the revised consent conditions tabled by Professor Maaka on 13 December, Exhibit 55 – Exhibit SGD6 (the revised Mana Whenua conditions).

148. The parties are unanimously opposed to the continued operation of the MWWG for the purposes of engagement with affected tangata whenua. The parties recommend that all references to the MWWG be deleted.

149. Te Taiwhenua o Heretaunga and NKII seek to be engaged as tangata whenua affected by the RWSS. The parties submit that the appropriate recourse for this is two-part:

(a) References to engagement with tangata whenua are expressly referred to as ‘tangata whenua engagement’, and each representative organisation should be directly engaged by the HBRIC; and

(b) A ‘Cultural Mitigation Project’ is developed and included in the Integrated Mitigation and Offsetting Approach. This Project would be focussed on catchment-wide cultural monitoring, assessment and reporting of cultural values, ‘ki Utu, ki Tai’. The Project would off-set any deficit to the cultural values of the effected waterways through riparian planting, restocking of native fish population in conjunction with the HBRC and HBRIC.

150. NKII and the Heretaunga Parties submit that the proposed conditions do not address the substantive issues raised by NKII and the Heretaunga parties, including:

(a) Cultural monitoring and reporting of the effects of the RWSS on Ngāti Kahungunu cultural values;

(b) Cultural monitoring, assessment and reporting on the effects of the RWSS in the lower Tukituki River;

(d) Cultural monitoring, assessment and reporting of the RWSS on mauri;

(e) Cultural monitoring, assessment and reporting of the RWSS on the coastal receiving environment, including the estuary.

151. NKII and the Heretaunga Parties acknowledge the inclusion of Project D: Ruataniwha Plains Spring-fed Stream Enhancement and Priority Sub-Catchment Phosphorus Mitigation and Central / Southern Hawke’s Bay Wide Native Fish Passage Project. While the parties acknowledge that the inclusion of a native fish mitigation package is welcomed and necessary, the benefits of Project D will not mitigate the effects of the RWSS on the marae and hapū at the mouth of the Tukituki River.

152. The parties endorse the monitoring of native fish species, including eel. In addition however, the parties submit that the scope of monitoring or a broader range of native fish species should be included within the scope of the consent conditions.

153. It is also noted that the revised conditions contain references to “a Ngāti Kahungunu Iwi Incorporated Fisheries Unit representative”.

154. While the parties acknowledge that the inclusion of NKII as the iwi authority in the consent conditions is useful, it is contended that it is beyond the reasonable scope of HBRIC, an incorporated company, to limit the scope of representation of the iwi authority to a member of “the fisheries unit”. Further, it is noted that this limited scope has not been imposed on other parties in the proposed conditions including Te Taiwhenua o Tamatea, Te Taiwhenua o Heretaunga, Royal Forest and Bird Protections Society and the Hawke’s Bay Fish and Game Council.

Concerns: Mitigation Agreement

155. HBRIC have entered into a Mitigation Agreement (the Agreement) for the purposes of the RWSS. The parties to the Agreement are HBRIC and Te Taiwhenua o Tamatea.

156. While NKII and the Heretaunga Parties do not make any substantive submissions on the nature and content of the Agreement, the parties briefly note a legal concern that must be remedied by HBRIC and Te Taiwhenua o Tamatea.

157. The Mitigation Agreement defines Tamatea as including Kahuranaki marae.

158. Kahuranaki is a marae within the boundaries of Te Taiwhenua o Heretaunga, and therefore the members of Kahuranaki marae are not beneficial members of Te Taiwhenua o Tamatea.

159. It is submitted that direct engagements should occur between the parties to the Agreement and Kahuranaki Marae.

Comment on Tamatea Position

160. It is Tamatea’s position that consultation with Tamatea was “genuine and effective”.84 This is a position that is entirely for Tamatea to assess and determine. However, counsel for Tamatea goes on to assert that “whatever consultation was occurring with Te Taiwhenua o Heretaunga and Ngā Marae o Heretaunga, it was sufficient to inform those groups of the proposal to the necessary extents”.85

161. Two matters arise from this proposition. First, while Tamatea is entitled to form their own view of their own circumstances, it is for NKII and the marae and hapū of Heretaunga to form a view on whether or not the local authority has provided adequate information

84 Tamatea, Opening Submissions, at [36]. 85 Te Taiwhenua o Tamatea, Opening Submissions, at [37].

and engagement on the Application with NKII and the Heretaunga Parties.

162. HBRC accepts that Tamatea was engaged at an early stage to provide four Cultural Impacts Assessment (CIA) reports on the effects of the RWSS on Tamatea, were engaged in both the Ruataniwha Leadership Group (RLG) and the Ruataniwha Steering Group (RSG), drafted the final Cultural Values Report, and engaged in a Mitigation Agreement with HBRIC for the purposes of the RWSS.

163. NKII and the Heretaunga Parties were not engaged by the HBRC on the RWSS until November 2011. The involvement of Heretaunga was at the instigation of the Maori Advisory Committee that had not been informed that CIA reports on proposed RWSS sites had been contemplated. Heretaunga was not directly represented on the Mana Whenua Working Group (MWWG). Heretaunga do not accept that the HBRC has adequately consulted the marae and hapū of Heretaunga on the impacts of the RWSS and Plan Change 6.

164. The second matter is that Te Taiwhenua o Heretaunga is the only entity that is representative of all of the marae and hapū within the Heretaunga Taiwhenua.

165. Counsel for Tamatea submits that the people of the nine marae of Tamatea are the mana whenua of the RWSS and are the people responsible for kaitiaki responsibilities for the land and water in that area.86 This assertion is contrary to the sentiments of Professor Maaka, Chairperson for Tamatea who has stated:87

The boundaries between Taiwhenua were in fact drawn arbitrarily with little consultation…An unexplained and very questionable move was the drawing of the boundary line between Heretaunga and Tamatea Taiwhenua. It is a line that divides the territory of the formerly powerful hapū of Te Whatuiapiti resulting in the three Te Whatuiapiti mare being located in the Heretaunga Taiwhenua and two in the Tamatea Taiwhenua.

86 Tamatea, Opening Submissions, at [15]. 87 Maaka, Perceptions, conceptions and realities: a study of the tribe in Maori society in the twentieth century, at p 155.

166. Specifically, Professor Maaka acknowledged that Kahuranaki Marae, Haungarea and Taraia are of the hapū of Te Whatuiapiti.88 It is submitted that Te Whatuiapiti hapū has equal claim as mana whenua to the RWSS as marae of Te Whatuiapiti within the Tamatea Taiwhenua.

167. Counsel for Tamatea further submits that Tamatea have scrutinised and questioned the water quality baseline of Plan Change 6. Despite this assertion, under cross-examination it appeared that Professor Maaka accepted that Tamatea’s engagement with HBRIC and HBRC was understood as engagement on the RWSS.89 Professor Maaka’s evidence was that Tamatea did not see the RWSS and Plan Change 6 as devisable when engaging with HBRIC and HBRC.90 Professor Maaka further agreed that Tamatea “wouldn’t oppose” the introduction of further and better water quality limits for sites of cultltural significance, including Lake Whatuma.91

DATED at Matahiwi on the day of 15 January 2014

______J P Ferguson / K L Allan Counsel for the Heretaunga Mana Whenua Parties

88 Transcript, p 2352, line 21. 89 Transcript, 2354. 90 Ibid. 91 Ibid, 2356.