IN THE HIGH COURT OF REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2013-404-5224 [2018] NZHC 2550

BETWEEN TE ARA RANGATU O TE O NGATI TE ATA WAIOHUA INCORPORATED First Plaintiff

AND RIKI MINHINNICK Second Plaintiff

AND THE ATTORNEY GENERAL OF NEW ZEALAND for/on behalf of the CROWN

First Defendant

CONTINUED OVERLEAF

Hearing: 21 – 22 May 2018

Appearances: No appearance by or on behalf of the plaintiffs S Kinsler and S Tandon for First Defendant J Hodder QC, T Smith and A Wicks for Second and Third Defendants/Counterclaim Plaintiffs H Wilson and J Taylor for Counterclaim Defendant

Judgment: 28 September 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on 28 September 2018 at 4.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

TE ARA RANGATU O TE IWI O NGATI TE ATA WAIOHUA INCORPORATED & ORS v THE ATTORNEY GENERAL OF NEW ZEALAND for/on behalf of the CROWN & ORS [2018] NZHC 2550 [28 September 2018]

AND NEW ZEALAND STEEL LIMITED Second Defendant

AND NORTH HEAD MINING LIMITED Third Defendant

AND HERITAGE NEW ZEALAND POUHERE TAONGA Counterclaim Defendant

[1] The counterclaim plaintiffs, New Zealand Steel Ltd and Waikato North Head Mining Ltd (“New Zealand Steel”), mine ironsands on land known as Maioro, located on the North Head of the . The ironsands are mined pursuant to a Deed of Licence from the Crown dated 3 June 1966 (“the Licence”), with mining operations ongoing since 1968.1

[2] The Licence was issued under the Iron and Steel Industry Act 1959 (“ISIA”) of which s 3 relevantly provides:

3 Right to prospect or mine for ironsands in ironsands area vested in Crown

(1) Except as otherwise provided by this Act and notwithstanding the provisions of any Act or of any Crown grant, certificate of title, lease, or other instrument of title, the right to prospect and mine for ironsands in any ironsands area is hereby vested in Her Majesty, subject to the provisions of this Act, and no person, other than the Minister, or a person authorised under this Act by the Minister, shall, after the commencement of this Act, prospect or mine for ironsands in any ironsands area.

(2) The Minister, without further authority than this Act, may carry on prospecting or mining operations in respect of ironsands in any ironsands area.

(3) The Minister may by writing under his hand authorise any person to exercise any of the rights or powers conferred on him by subsection two of this section subject to such terms and conditions as he thinks fit and for that purpose the Minister may from time to time, on behalf of Her Majesty, enter into agreements with any person in order to give full effect to the provisions of this subsection.

[3] Both the ISIA and the Licence provide that the land subject to the Licence is managed by the Crown as a state forest, and that prior to any mining operations New Zealand Steel gives notice to the Crown which is then required to clear the trees from the land to enable mining operations to proceed.

[4] The ISIA was repealed from 1 October 1991 by s 361 of the Resource Management Act 1991 (“RMA”). Despite its repeal ss 106 and 107 of the Crown Minerals Act 1991 (“CMA”), enacted at the same time as the RMA, provided that

1 New Zealand Steel Ltd was the original licensee pursuant to the License but its interests under the License were assigned to Waikato North Head Mining Ltd pursuant to a Deed of Assignment of Mining Licence between New Zealand Steel Ltd and Waikato North Head Mining Ltd dated 20 October 2008. The assignment was consented to by the Crown through the Minister of Energy.

every “authorisation given, agreement entered into, and grant of rights under the Iron and Steel Industry Act 1959” became an “existing privilege” and continued to have effect “as if the Act which applied to the privilege … continued in force”.2

[5] In the course of 2013 an issue arose between New Zealand Steel and the Crown as to whether resource consents under the RMA were necessary before the Crown could proceed to remove the trees from the land preparatory to the land being mined. In New Zealand Steel Ltd v Attorney-General (“the first New Zealand Steel decision”) New Zealand Steel submitted the effect of s 3 of the ISIA was no further authority was required for either forest clearing or ironsand mining operations, and that as the effect of that section was preserved by s 106 of the CMA, no resource consents were necessary before tree removal could occur.3 In response the Crown considered because the obligation was on the Crown to remove the trees, the “existing privilege” held by New Zealand Steel was not applicable. As the Crown itself had no existing privilege, it had no power to undertake forestry clearing without first obtaining resource consents under the RMA.

[6] Finding for New Zealand Steel, Kós J concluded that prior to the commencement of the RMA and CMA the ISIA had created “a separate statutory regime authorising [the ironsand mining]”, and that regime included the whole bundle of rights necessary to carry out the iron sand mining operation.4

[7] As a result Kós J made the following declarations:5

(a) the grant of rights under the Iron and Steel Industry Act 1959 contained in the 1966 Deed of Licence from the Crown (as Licensor) to New Zealand Steel Ltd and its successors and assigns (as Licensee) included the right of the Licensee to require the felling and removal of trees and necessary incidental works, including soil disturbance and vegetation clearance, on notice, by the Licensor to permit mining operations to proceed;

(b) the Deed of Licence, incorporating the rights in (a), is an “existing privilege” within the meaning of clause 12 of Schedule 1 to the Crown Minerals Act 1991; and

2 Section 106 was subsequently amended by the Crown Minerals Amendment Act 2013 with substantially the same effect. 3 New Zealand Steel Ltd v Attorney-General [2013] NZHC 3524. 4 At [62] and [63]. 5 At [67].

(c) neither the Licensor nor the Licensee need any consent under the Resource Management Act 1991 to undertake such removal of trees or any necessary incidental works.

[8] Since that decision a further issue has arisen with regard to forestry clearance, and potentially ironsand mining: whether an authority to modify under the Heritage New Zealand Pouhere Taonga Act 2014 (“HPTA 2014”) is required before the forest is cleared and/or ironsand mining commences.

[9] The requirement to obtain an authority to modify (“the heritage protection regime”) is currently contained in s 42 of the HPTA 2014, and is required in respect of all archaeological sites, defined in s 6 (subject to s 42(3) of the HPTA 2014 as:

(a) any place in New Zealand, including any building or structure (or part of a building or structure), that—

(i) was associated with human activity that occurred before 1900 or is the site of the wreck of any vessel where the wreck occurred before 1900; and

(ii) provides or may provide, through investigation by archaeological methods, evidence relating to the history of New Zealand; and

(b) includes a site for which a declaration is made under section 43(1)

[10] As the definition notes, Heritage New Zealand can declare any place to be an archaeological site, if on reasonable grounds, it believes it meets the definition.

[11] This issue arose in the course of substantive proceedings brought by Te Ara Rangatu o te Iwi o Ngāti Te Ata Waiohua Inc on behalf of Ngāti Te Ata iwi (“Ngāti Te Ata”), with regard to the ownership of Maioro. While those substantive proceedings are not yet ready for hearing, New Zealand Steel, defendants in the substantive proceedings, have sought declarations by way of counterclaim once again that no further authority is required beyond the ISIA to fell and mine, and as a result no authority is modify under the HPTA 2014 is required.

[12] The declarations sought by New Zealand Steel are opposed by the Crown, and by Heritage New Zealand Pouhere Taonga (“Heritage New Zealand”) as the counterclaim defendant. Ngāti Te Ata, somewhat surprisingly given its interest in

Maioro, has taken no part in the determination of the counterclaim, neither filing submissions on the issue, nor appearing at the hearing before me.

[13] As there is now no dispute following the first New Zealand Steel decision that the Licence is an existing privilege expressly preserved by the operation of the CMA, the sole issue in the present counterclaim is whether an authority to modify an archaeological site was required prior to the enactment of the RMA and CMA in 1991. That turns on whether an authority to modify archaeological sites has been required since the introduction of the heritage protection regime by the Historic Places Amendment Act 1975 (“the HPAA 1975”). This amended the Historic Places Act 1954 (“HPA 1954”) and took effect from 1 April 1976. There is no dispute that:

(a) the requirement to obtain an authority to modify has remained in successive historic places legislation, through the Historic Places Act 1980 (“HPA 1980”), Historic Places Act 1993 (“HPA 1993”), and continues in the HPTA 2014; and

(b) there is nothing in those subsequent Acts that would impose any greater obligation on New Zealand Steel if one was not required by the HPAA 1975.

[14] In order to determine this broader issue two questions must be considered. Specifically, following the approach taken by Whata J in Meridian Energy Ltd v Southland District Council it is necessary to consider:6

(a) First, can the ISIA be reconciled with the HPAA 1975 and the requirement to obtain an authority to modify contained in subsequent historic places legislation?

(b) If not, how is any inconsistency to be reconciled as between the two legislative regimes? In carrying out operations under the ISIA and Licence are the Crown and New Zealand Steel required to comply with the authority to modify regime now contained in the HPTA 2014?

6 Meridian Energy Ltd v Southland District Council [2014] NZHC 3178, (2014) 18 ELRNZ 473.

Relevant Background

[15] The land at Maioro upon which the ironsand mining takes place is a block of approximately 1,500 hectares which also forms Waiuku Forest formerly the Waiuku State Forest. The history of Maioro was summarised by Kós J in the first NZ Steel decision in the following terms:7

The black sand beaches on the western coastline of New Zealand are a product of prehistoric volcanic activity in the Taranaki region. Cook observed these sands on his first voyage to New Zealand in 1769. Their obvious iron-bearing properties attracted mining and smelting attempts as early as in 1848. But problems with the fineness and constituent properties of the ore meant effective smelting took another century to perfect.

In the meantime, and apart from the ironsand resources, the government became interested in the lands at the north head of the Waikato River. Much of this land was the subject of a Crown purchase from Ngāti Te Ata in 1864. Some of it was confiscated pursuant to the New Zealand Settlements Act 1863. By 1932 the sand dunes were threatening to engulf farms further inland. That year the Public Works Department began sand dune reclamation. It planted marram grass and lupin, and then pine trees. Some additional land, including wāhi tapu parcels which had not been purchased or taken from Ngāti Te Ata, were taken under the Public Works Act 1928 for sand dune reclamation in 1939, and for other state forest purposes in 1959. In 1952 control of the forest passed to the New Zealand Forest Service. In 1961, 1962 and 1966 most of the land now comprising the Waiuku Forest was set apart as a permanent state forest under s 18 of the Forests Act 1949.

[16] The final blocks acquired by the Crown from Ngāti Te Ata were four wāhi tapu areas:8

• Te Papawhero (206 ha);

• Waiaraponia (12 ha);

• Te Kuo (50 ha); and

• Tangitanginga (25.5 ha).

[17] These blocks had been returned to Ngāti Te Ata in 1865 at the time the Crown was acquiring the Waiuku block, which spanned 17,685 ha between the Waikato River

7 New Zealand Steel Ltd v Attorney-General, above n 3, at [8]-[9]. 8 Waitangi Tribunal Report of the Waitangi Tribunal on the Manukau Claim (Wai 8, 1985) at 20.

mouth and the . Despite recognition of the importance of the blocks to Ngāti Te Ata, Te Papawhero was taken by the Crown for sand dune reclamation purposes in 1939. The other three blocks were subsequently taken under the Public Works Act 1928 for state forest purposes at a time when the Government of the day was exploring the desirability of creating a national iron and steel industry.9

[18] Earlier attempts to establish such an industry through enactment of the Iron and Steel Industries Act 1914 (which provided bounties paid for production) and the Iron and Steel Industry Act 1937 (which envisaged that the industry would be encouraged and developed through commissioners) had not been successful.10 By the late 1950s various technical issues which had made it difficult to use New Zealand ironsand for iron and steel production had been resolved. This led to a further attempt to establish an iron and steel industry in New Zealand through enactment of the ISIA. This time the Crown took direct responsibility for “mining and prospecting in the initial stages of the industry”, and gave “the Minister of Industries and Commerce … the right to invest in the initial company that is being formed to test and investigate the properties of our ironsands”.11 Following passage of the ISIA, the Government established an investigating company, the New Zealand Steel Investigating Co Ltd (“the Investigating Company”), “to ascertain the advisability and the technical and economic feasibility of establishing an iron and steel industry in New Zealand”.

[19] The Investigating Company reported back to the Minister of Industries and Commerce in December 1962. By that time the Minister was the Hon J R Marshall, following the change of Government after the 1960 general election. The Investigating Company advised it had undertaken exploratory drilling on a number of West Coast sites, including the North Head of the Waikato River, in respect of which the Investigating Company reported:12

The company was fortunate in discovering, at an early stage of its work, the quality and extent of the Waikato North Head deposit.

The deposit is in easy country and at its furthest point within 8 miles of the existing railhead at Waiuku.

9 At 20-23. 10 Although the Act is dated 1937, it was still being debated in Parliament in 1938. 11 (1 October 1959) 321 NZPD Volume 2187 (First Reading, The Hon F Hackett, Minister of Mines). 12 Report of the New Zealand Steel Investigating Co Ltd (11 December 1962) at 16.

Supplies of coal are available within relatively short distances. The deposit is within 48 miles of Auckland from where about 46 per cent of New Zealand’s present steel imports are distributed.

The company considers that other major deposits should be reserved until the long-term needs of a New Zealand industry are better known.

[20] The Investigating Company was given an assurance that adequate electrical power would be available wherever the iron and steel making plant required to utilise the ironsand was located:13

It followed that the best location for a industry would be in the South Auckland district. This area encompasses the main distribution centre and the best indicated sources of concentrate and coal.

[21] The Investigating Company accordingly recommended that it was in the national interest to establish a public company for the purpose of establishing a New Zealand iron and steel industry based on indigenous raw materials (ironsand deposits) with the intention that production could begin in 1966.

[22] The Government accepted the recommendations of the Investigating Company and established New Zealand Steel Ltd. New Zealand Steel Ltd carried over the same directors as the Investigating Company to its provisional board, who reported again to Mr Marshall in December 1964. New Zealand Steel Ltd’s December 1964 report confirmed the suitability of the Waikato North Head deposit at Maioro, as well as the location of a steelworks in South Auckland to make iron and steel from the ironsands. It therefore recommended:14

Raw Materials

(7) The initial source of iron ore be the Waikato North Head deposit.

(8) The source of coal be the Waikato coalfields.

(9) The major ironsand deposits be reserved to the operating company until such time as the long-term requirements of New Zealand are known.

(10) The Government, for an initial period, supply power to the operating company at 0.5d. per kilowatt-hour.

Site of Works

13 At 36. 14 Report of the Provisional Board of the New Zealand Steel Co (9 December 1964) at 44.

(11) The site of the new steelworks be in the preferred South Auckland area between the Main Trunk Railway and the west coast, bounded to the north by the foreshore of the Manukau Harbour and to the south by the Waikato River.

(12) The operating company obtain an area sufficient to permit long-term expansion to an annual capacity of at least 1 million tons.

[23] Maioro was able to remain state forest land and yet be made available for ironsands mining following the passage of the Iron and Steel Industry Amendment Act 1965, which took effect on 29 October 1965. The Act inserted a s 7A into the ISIA enabling the Crown to set apart state forest land (under the Forest Act 1949) in an ironsands area, for the purposes of the ISIA. As Kós J noted in the first New Zealand Steel decision, prior to the amendment a state forest area subject to the ISIA would cease to be a state forest. Section 7A permitted such areas to continue to be managed as state forests and at the same time remain available for ironsands prospecting and mining by way of a dual ministerial control regime.15 Section 7A(5) provided:

(5) The Minister of Mines shall not make any grant, sale, or disposal under subsection (1) of section 10 of this Act in respect of any land set apart under this section without –

(a) The concurrence of the Minister of Forests and subject to such terms and conditions as the Minister of Forests may require; and

(b) Making it a condition of any such grant, sale, or disposal that no trees on any such land shall be cut, felled, removed, or disposed of otherwise than in accordance with subsection (2) of this section.

[24] This then was the position at the time the Licence was granted in June 1966. Consistent with providing authority to prospect and mine ironsand:16

The deed of licence grants the company “exclusive licence, liberty, power and authority to mine and extract all ironsands as defined in s 2 of the [1959] Act at the Waikato north head”. It also grants a full liberty, licence, power and authority (but subject to the provisions of the 1959 Act and the licence), to dig, excavate, mine or quarry under or upon that land for the purposes of quarrying and removing ironsands. The licence grants, also, a right of occupation of the land for those purposes, for a term of 100 years. A per tonne royalty (six pence) was payable.

15 New Zealand Steel Ltd v Attorney-General, above n 3, at [25]. 16 At [28] and [29].

The company is required to give the Minister of Forests two years notice of mining operations necessitating the clearance of land for mining purposes. Stump removal remains the company’s responsibility. The licence required that the company “systematically worked the ironsands by advancing across such areas and in such directions as should be pre-determined by agreement with the Minister of Forests so that the forestation or reforestation or worked over areas may be properly planned”. The company was bound, also, to pay the costs of dune protection environmental work.

[25] On the same day as the Licence was signed the Government and New Zealand Steel also signed a Heads of Agreement. As Kós J noted the Heads of Agreement:17

… provided that the government would have the right to take up to 25 per cent of shares issued in that company. There was to be a government loan of £3 million (and a government guarantee of company borrowing up to £8 million). There was an assurance by the government that it would not introduce legislation altering the schedule to the 1959 Act, excluding any part of the existing “ironsands area”, unless satisfied that the resources in those areas were not required for development of the industry by the company. Any considerable new deposits of iron ore discovered before 1 January 1986 were to be added to the schedule. It provided, fundamentally, for the company to have a 100 year right to process all New Zealand ironsands in any ironsands area provided in the 1959 Act. It provided assurances of supply of coal and electricity at concessionary prices. It granted sole rights to the manufacture in New Zealand of a number of iron and steel products, such as galvanised sheeting, pipes tubes and rods, tin plate, and rails. And it provided for entry into a formal licence in respect of the Waikato north head deposit, the subject of the present proceeding.

[26] Ironsand mining operations under the Licence commenced at Maioro in 1968. At the time the initial historic places legislation, the HPA 1954, was already in force, but it had done no more than establish the National Historic Places Trust,18 and it is not in dispute that nothing in that Act in any way affected either forestry or ironsand mining operations at Maioro. The first requirement to obtain an authority to modify archaeological sites before they could be destroyed, damaged or modified was introduced by the HPAA 1975 which inserted a new s 9F into the HPA 1954 which provided: 19

9F Protection of archaeological sites

(1) Subject to this section it shall not be lawful after the commencement of this Act for any person to destroy or damage or modify, or cause to

17 At [27]. 18 Subsequently renamed the New Zealand Historic Places Trust in the HPA 1980, and renamed again as Heritage New Zealand Pouhere Taonga in the HPTA 2014. 19 Effectively maintained through subsequent heritage protection legislation to the present s 42 of the HPTA 2014.

be destroyed or damaged or modified, the whole or any part of any archaeological site, knowing or having reasonable cause to suspect that it is an archaeological site, whether or not the site has been registered under section 9G of this Act.

(2) On application the Trust may, subject to such conditions as it thinks fit to impose, authorise the whole or any part of any archaeological site to be destroyed, damaged, or modified.

(3) Without in any way limiting the conditions that may be imposed by the Trust under subsection (2) of this section, where the Trust imposes the condition that a scientific archaeological investigation shall be carried out by or on behalf of the Trust before any authority is given to any person to carry out such destruction, damage or modification, that person shall, except where the Trust is satisfied that such destruction, damage, or modification is solely for farming or agricultural purposes, be required to pay the trust an amount equal to the cost of carrying out the investigation:

Provided that, in the case of hardship or other special circumstances, the Trust may reduce the amount to such amount as it considers equitable or waive the requirement altogether.

(4) The Minister may from time to time enter into an agreement with the owner or occupier of any land in order to protect any archaeological site on the land.

[27] There is no dispute between the parties that the ISIA was not specifically considered at the time the HPAA 1975 was enacted. It is also common ground that at no time since the heritage protection regime came into force has New Zealand Steel ever applied for an authority to modify, notwithstanding in January 1986 the regional archaeologist at the New Zealand Historic Places Trust advised New Zealand Steel that an authority to modify was required before ironsand mining operations could be undertaken, at least insofar as the four wāhi tapu areas were concerned. The Historic Places archaeologist subsequently suggested up to 308 hectares or 20 per cent of the licence area could be considered to be archaeological sites under the heritage protection regime.

[28] The Crown too, had not previously considered it necessary to seek either resource consents under the RMA, nor authority to modify under the heritage protection regime. That changed in 2003 when consents under both these regimes were sought by the Crown in relation to forestry activities unrelated to ironsand mining. The Crown applied for and was granted a general authority under the HPA 1993, so as to modify or damage any archaeological sites within the licence area, but

did not exercise this authority after the resource consent sought at the same time was declined by the Environment Court.

[29] Archaeological surveys undertaken at Maioro in 1983, 2003 and 2014 identified a small number of archaeological sites. The reports noted that the area is not only a dynamic environment subject to significant natural changes but also that most parts of Maioro have already been modified by forestry activities, as much of the land is now onto its second rotation of plantation forestry. Despite that Maioro remains a wāhi tapu to Ngāti Te Ata, whether or not particular areas meet the definition of a “archaeological site” for the purposes of the heritage protection regime, and Ngāti Te Ata have consistently raised issues with regard to the ongoing protection of Maioro and the four wāhi tapu in particular. These issues were considered by the Waitangi Tribunal in its Manukau Report, and while the Tribunal declined to recommend the cessation of ironsand mining at Maioro, working on the assumption that the heritage protection regime applied to Maioro it went on to express doubt the regime gave proper protection to the wāhi tapu located on the land in accordance with the Treaty of Waitangi.20 It recommended:21

12. To the Ministers of Lands, Forests and Energy

(a) that the consents and licences whereby NZ Steel Ltd is authorised to undertake mining operations at Waikato North Head be reviewed and renegotiated, or new undertakings sought, to protect sacred sites and adjoining Maori lands, as referred to at para 9.3.6 (but not so as to presume that all former Māori freehold lands are sacred sites), with provision for the re-interment of discovered remains, and with provision for the re-interment of the remains within large wāhi tapu where burials are dispersed, with the concurrence of elders of Ngāti Te Ata.

(b) that if agreed to by Ngāti Te Ata, assistance be given for the survey of agreed sacred sites, and their establishment as Māori Reservations with trustees appointed for their control (refer paras 7.3 and 9.3.6).

[30] Since that recommendation the Maioro Koiwi Protection Plan has been developed and is binding on all parties.22 The current version of the Plan, updated in

20 Waitangi Tribunal, above n 8, at 92-93. 21 At 98. 22 This is documented in cl 8 of the Supplementary Deed between the Crown and Waikato North Head Mining Co Ltd dated 17 November 2015.

2000, was a result of a joint initiative between Ngāti Te Ata and New Zealand Steel to enable New Zealand Steel “to proceed with its mining programmes in line with the comprehensive Koiwi Protection Plan”. The plan identifies a number of options in the event that koiwi are discovered in the course of ironsand mining operations, with New Zealand Steel committing that:

(a) if koiwi are discovered anywhere in the “Four Blocks”, the site (50 metre radius) is cordoned off to investigate whether there are other koiwi present; and

(b) if several koiwi were present within one site, that site would be afforded the same mana and protection to the koiwi as the urupa in the Te Kuo block by changing the status of the site (one-acre minimum) to an urupa, thereby precluding further mining.

Can the ISIA be reconciled with the HPAA 1975 and the requirement to obtain an authority to modify?

[31] In Stewart v Grey County Council the Court of Appeal was required to consider whether land in respect of which a mining licence had been issued under the Mining Act 1971 was subject to the land use provisions under the Town and Country Planning Act 1953.23 As the Court noted the first step was to determine whether the enactments were in fact inconsistent:24

The starting point, of course, is that there be an inconsistency. If it is reasonably possible to construe the provisions to give effect to both, that must be done. It is only if one is so inconsistent with, or repugnant to the other, that the two are incapable of standing together, that it is necessary to determine which is to prevail.

[32] Both Mr Kinsler for the Crown and Mr Wilson for Heritage New Zealand submitted there is no inconsistency between the ISIA and the requirement to obtain an authority to modify pursuant to the heritage protection regime. They argued the words “without further authority than the Act” contained in s 3(2) of the ISIA must be read in relation to use of land, and specifically the use of land at Maioro for ironsand mining

23 Stewart v Grey County Council [1978] 2 NZLR 577 (CA). 24 At 583.

operations. Accordingly, the ISIA and the heritage protection regime are not inconsistent and/or can otherwise be reconciled. Mr Wilson in particular submitted the requirement to obtain an authority to modify pursuant to the heritage protection regime is not concerned with land use but rather “the impact of how an activity will modify or destroy an archaeological site”.

[33] The authority granted by s 3(2), in Mr Wilson’s submission, means only that permission or authority was not required under the Mining Act 1926, and does not excuse either New Zealand Steel or the Crown from compliance with other legislation. Mr Wilson noted New Zealand Steel has accepted that in undertaking its ironsand mining operations, it is bound by general legislation including the Crimes Act 1961 and Health and Safety at Work Act 2015.

Discussion

[34] Applying first principles there is a certain inherent logical issue with the submission made by both the Crown and Heritage New Zealand. Their position requires the phrase “without further authority than this Act” in s 3(2) of the ISIA to be read as subject to an “authority” under the heritage protection regime.

[35] Reconciling the ISIA and the heritage protection regime is dependent upon overcoming this logical issue; reading down the apparently broad authority provided by s 3(2) of the ISIA so that it simply excuses any need for a permit under the Mining Act 1926, and consequently the RMA.

[36] With respect, such an argument cannot be sustained. The natural and ordinary meaning of authority includes “the right to act in a specified way, delegated from one person or organisation to another”.25 The clear words of s 3(2) of the ISIA therefore suggest that all authority necessary to carry out forestry and mining operations at Maioro has been vested in New Zealand Steel.

25 Oxford English Dictionary (online ed, Oxford University Press, 2014).

[37] Similarly, if s 3(2) was limited in the way suggested by Mr Wilson, it would render superfluous s 4 of the ISIA which confirms, specifically in relation to the Mining Act 1926:

4. Mining Act 1926 not to apply to ironsands area

Nothing in the Mining Act 1926 shall apply to ironsands in any ironsands area or to the prospecting or mining for ironsands in any ironsands area, whether or not the land has been taken or acquired under or for the purposes of this Act.

[38] More broadly, the distinction between land use (allegedly the focus of the ISIA) and non-land use (under the heritage protection regime) sought to be drawn by both the Crown and Heritage New Zealand is difficult to maintain in practice. If correct, the use supposedly authorised by s 3(2) of the ISIA can be prevented if there is a requirement to apply for an authority to modify. In particular, if an authority to modify under s 42 of the HPTA 2014 was required to be applied for and not granted, this would effectively preclude both tree removal and ironsand mining over those parts of the licence area for which no authority to modify was granted, or at least delay operations while the decision was appealed to the Environment Court.26 Even then, there is no guarantee that an authority would ultimately be obtained.

[39] Furthermore the extent of any archaeological site over which an authority to modify would need to be obtained is not clear. As noted, s 43 of the HPT 2014 allows Heritage New Zealand to declare an archaeological site “on reasonable grounds” and while it has not yet done so, a declaration over large areas of Maioro could take place, given the archaeological investigations that have taken place to date as well as Ngāti Te Ata’s own history of occupation and use of the land. Even in the absence of a declaration under s 43(1), if the heritage protection regime applies both the Crown and New Zealand Steel would have to apply for an authority to modify in respect of “any place” on the land “that was associated with human activity that occurred before 1900” (which Maioro clearly was), that “may provide, through investigations by archaeological methods, evidence relating to the history of New Zealand”. The broad concepts referred to suggest if an authority to modify is required, a potentially large

26 Heritage New Zealand Pouhere Taonga Act 2014, s 58.

area of Maioro could be excluded from forestry operations and ironsand mining contrary to both the ISIA and the Licence.

[40] The apparent inconsistency and indeed the substantial potential for application of the heritage protection regime to severely interfere with, if not potentially end forestry operations and/or ironsand mining over Maioro, cannot be addressed by reference to other statutes of general applicability such as the Crimes Act which apply to both New Zealand Steel and the Crown. These reasons also reinforce why the submission that a distinction can be drawn between the ISIA as land use legislation and the heritage protection regime cannot be sustained.

[41] First, the Licence required several statutes to be complied with. This included the Forest and Rural Fires Act 1955, the Forests Act 1949, and the Quarries Act 1944. The latter was the direct predecessor to the current Health and Safety at Work Act, making it clear that compliance with the extant health and safety regime was always intended and that forestry and mining operations were subject to compliance with that legislation.27

[42] Likewise general legislation like the Crimes Act or Land Transport Act 1998 apply to people and not whether the land can be utilised, modified or otherwise destroyed, and apply equally whether an authority to modify has been obtained or not. Fundamentally such legislation does not affect the ability of the land to be mined, in contrast to an authority to modify under the heritage protection regime which, as noted, can prevent parts of the land at Maioro from being used for forestry purposes or ironsand mining.

[43] Taken together I am satisfied the ISIA and the requirement to obtain an authority to modify under the heritage protection regime are inconsistent, an inconsistency that can only be resolved by reading down the authority provided by s 3(2) of the ISIA. In such circumstances, as Whata J noted in Meridian, “it is the exposure to a discretionary assessment per se that creates the irreconcilable conflict.”28

27 The Quarries Act 1944 that was repealed and replaced by the Quarries and Tunnels Act 1982, which was in turn repealed and replaced by the Health and Safety in Employment Act 1992, itself replaced by the current Health and Safety at Work Act 2015. 28 Meridian Energy Ltd v Southland District Council, above n 6, at [45].

[44] My consideration then turns to how that inconsistency should be reconciled.

How is the inconsistency between the ISIA and the Heritage Protection Regimes to be reconciled?

[45] In order to determine which of two inconsistent statutes is to prevail:29

… there are two principles for consideration. One is the maxim known as generalia specialibus non derogant. It was explained in Barker v Edger (1898) NZPCC 422, 427; [1898] AC 748, 754, in the following terms:

“When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms.”

In such a case the earlier “special” statute continues to have exclusive application to its own subject-matter and the later general Act, although in terms wide enough to extend to the subject-matter of the earlier Act, is held not to have any application to it.

The other is the principle of implied repeal which as it relates to legislation affecting special situations, is expressed in 36 Halsbury's Laws of England (3rd ed) para 712 as follows:

“To the extent that the continued application of a general enactment to a particular case is inconsistent with special provision subsequently made as respects that case, the general enactment is overridden by the particular, the effect of the latter being to exempt the case in question from the operation of the general enactment or, in other words, to repeal the general enactment in relation to that case.”

In cases where there is a conflict between general legislation and special legislation, these two principles are, in reality, two sides of the same coin. There may be difficulties in some cases in determining which statute is special. There are some situations in which “each enactment may be called general or special according to the point of view from which it is regarded” (Butler v Attorney-General for Victoria (1961) 106 CLR 268, 280).

[46] Neither the Crown nor Heritage New Zealand suggested that the ISIA had been impliedly repealed by the authority to modify regime contained in the heritage protection legislation. Rather, noting the principle of generalia specialibus non derogant the Crown submitted the archaeological authority provisions in the HPTA 2014 (and its predecessors) are prescriptive and specific. So while the RMA, Building Act and Land Transport Act apply (with some limited exceptions) to all land in New

29 Stewart v Grey County Council, above n 23, at 583.

Zealand, the archaeological authority provisions in the HPTA 2014 only apply to areas that meet the definition of archaeological site and specifically to the act of modifying or destroying an archaeological site. Mr Kinsler submitted that among other reasons, this is why the archaeological authority process has deliberately been kept separate from those more general regimes, and cannot properly be characterised as “general”. He added that the subject matter of the archaeological authority provisions was not specially dealt with by the earlier ISIA, nor the need to obtain an authority to modify or destroy an archaeological site anticipated by the ISIA, because there was no protection for archaeological sites in 1959. Mr Wilson similarly submitted that when Parliament enacted the ISIA, it could not have considered that an authority to modify or destroy an archaeological site would be required.

[47] Heritage New Zealand recognised the principles outlined in Stewart are a “useful guide” but submitted that the principle of generalia specialibus non derogant did not apply in the present case because the provisions in apparent conflict do not deal with the same subject matter and the provisions in the ISIA are not any more specific than the provisions in the HPTA 2014. Mr Wilson went on to underline the presumption that legislation should be read consistently with New Zealand’s international obligations.30 He observed Heritage New Zealand’s interpretation is consistent with New Zealand’s international obligations, namely the United Nations Declaration on the Rights of Indigenous People (“UNDRIP”), which the New Zealand Government announced its support for in April 2010 at the United Nations Permanent Forum on Indigenous issues.31

[48] The overall position of the Crown and Heritage New Zealand was the ISIA, and therefore the Licence, do not exempt compliance with the HPTA 2014. In the Crown submission:

The ISIA and New Zealand Steel’s licence grant the right to prospect and mine for ironsands in any ironsands area “without further authority”. The activities that the licence enables New Zealand Steel to carry out “without further authority” are those that relate to its mining operations. The licence does not grant New Zealand Steel a free pass in respect of non-mining related activities

30 JF Burrows and RI Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellignton, 2015) at 515. 31 United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295, A/Res/61/295 (2007).

or activities that constitute a practical impediment to mining because they require a form of licence or authority. This includes the requirement for an archaeological authority under the [HPTA 2014] and its predecessors.

[49] Heritage New Zealand went further:

… it was Parliament’s genuine intention that section 42 of the [HPTA 2014] prevails over other enactments, insofar as archaeological sites are concerned.

Discussion

[50] The principle of generalia specialibus non derogant is explained in Bennion on Statutory Interpretation in the following terms:32

Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Accordingly the earlier specific provision is not treated as impliedly repealed.

[51] As Wood VC explained in Fitzgerald v Champneys:33

…the reason in all these cases is clear. In passing the Special Act, the Legislature had their attention directed to the special case which the act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention to have intended to derogate from that which, by their own Special Act, they had thus carefully supervised and regulated.

[52] The principle was likewise applied by the Earl of Selborne LC in Seward v Vera Cruz in the following terms:34

Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.

[53] Applying these principles to the present case it is clear the ISIA and the Licence have established a specific and detailed regime applying to the conduct of both forestry operations and ironsand mining on the land at Maioro.

32 Oliver Jones Bennion on Statutory Interpretation (6th ed, LexisNexis, London, 2013) at 281. 33 Fitzgerald v Champneys (1861) 70 Eng Rep 958 (Ch) at 968. 34 Seward v Vera Cruz (1884) 10 App Cas 59 (HL) at 68.

[54] In particular it is clear that from the beginning New Zealand Steel was given full and explicit authority to modify or destroy the land at Maioro in order to extract the ironsand as well as to require the Crown to remove the trees comprising the forest to enable mining operations to proceed. If the ISIA did not detail what mining ironsand operations at Maioro would entail, the Licence did and there is no suggestion that it was beyond what the ISIA authorised,35 noting also that it is in fact the Licence that is the “existing privilege” preserved under the CMA.36

[55] The Licence made it quite clear to the parties, both the Crown and New Zealand Steel, what was intended to happen to the land given it provided to New Zealand Steel all necessary authority to “[use] the Waikato North Head deposit of ironsands”:

… with full and free liberty licence power and authority but subject to the provisions of the Iron and Steel Industry Act 1959 and the provisions of this Deed, to dig, sink, drive, excavate and make such mines, pits, shafts, quarries in under or upon the said land or any part thereof as the Company shall deem necessary or expedient for searching for, getting and carrying away the ironsands in or from the said land and from the pits, quarries and shafts which shall be made by the Company therein.

[56] Ancillary powers granted included occupying the land at Maioro for “storing and processing the ironsands”, as well as:

… to take lead and carry away with trains, tramway, pipe lines, motor vehicles or other means all the ironsands raised and got out of or from the said land AND ALSO with the prior approval of the Minister of Forests in or upon the said land to make, fix and place such roads, railways, tramways as shall be required and to divert watercourses construct lay and maintain pipe lines and erect power lines AND ALSO to make erect build upon the said land or any part thereof and to remove and pull down and on the same or any other part or parts of the said land to re-erect and rebuild such engines crushers pulverisers screens driers and other machinery buildings, sheds, walls and other erections as shall from time to time be necessary or convenient for the working and processing of the ironsands on or within the said land or for the heating of the same or for the laying up and stacking or for more effectively exercising all or any of the liberties powers and authorities hereby granted:

TO HOLD and use the ironsands the said land and the liberties powers and authorities, and all and singular other the premises, hereby granted or expressed so to be unto the Company, subject to the provisions of the Iron and Steel Industry Act 1959 and subject also to the stipulations herein contained, for and during and unto the full end and term of one hundred years (hereinafter

35 New Zealand Steel Ltd v Attorney-General, above n 3, at [51]. 36 See [4] and [5] above.

referred to as “the said term”) to commence and to be computed from the third day of June 1966.

[57] The understanding the land would be changed out of all recognition was also reflected by the extensive and specific provisions made in the Licence for remediation.

[58] There can be no doubt that the powers granted to New Zealand Steel were extensive and comprehensive in order to give effect to what was regarded as the nationally important goal, shared by successive governments from both sides of the house,37 of establishing a New Zealand iron and steel industry. A key part of this endeavour was ensuring the necessary raw materials to enable this to occur were secured. The Licence secured the ironsand resource necessary to underpin the iron and steel industry. The clear expectation of the parties was that the whole of the land subject to the Licence would be modified or destroyed over the next hundred years, and the Crown covenanted in the Heads of Agreement that lands subject to the ISIA including those at Maioro would not be excluded unless, as provided in cl 11(1), “it is satisfied that the iron ore resources those areas contain are not required for the development of an iron and steel industry by the company.”

[59] Furthermore, these powers were granted to New Zealand Steel in the knowledge that Ngāti Te Ata had been opposed to the Crown acquisition of the block as a whole and the four wāhi tapu blocks in particular, albeit specifically excluding from the Licence “part of allotment 99 Waiuku West Parish remaining as an urupu, that part of allotment 100 Waiuku West Parish remaining as Māori land”.

[60] I therefore accept Mr Hodder QC’s submission on behalf of New Zealand Steel that the ISIA, given effect as it was by the Licence and the Heads of Agreement, represented a complete code, intended to apply for the duration of ironsand mining operations at Maioro.

[61] In contrast, while important and in its own way specific, the authority to modify regime introduced by the HPAA 1975 is of far more general application,

37 See [18] and [19] above.

concerned with the destruction and modification of archaeological sites throughout New Zealand not just the land at Maioro subject to the Licence.

[62] The absence of consideration given to the ISIA at the time the HPAA 1975 was enacted only some nine years after the Licence was executed detailing what was to happen at Maioro, and the subsequent confirmation by the CMA of the “existing privileges” contained in the ISIA and Licence, further undermine the suggestion of any intention to modify or restrict the authority granted to New Zealand Steel under the Licence.

[63] In such circumstances comments by the Court of Appeal in Stewart are apposite. Having concluded the Mining Act and the Town and Country Planning Act were inconsistent, the Court determined it was the Mining Act that was specific legislation which should prevail over the Town and Country Planning Act, stating:38

… it would be surprising if the Minister, having determined … that it was in the national interest for land to be declared open for mining as if it were Crown land, and having then granted a mining licence, the town planning legislation could then be invoked to negate that decision. We are satisfied that that would be contrary to the purpose of the legislation.

[64] In this case too I am satisfied that s 3(2) of the ISIA must prevail. As Whata J noted in Meridian:39

The beneficiaries of the 1963 agreement must legitimately expect in light of s 4 (supported by s 8) strict adherence to its terms. Those expectations ought not to be disappointed except by unambiguous statutory language.

Contextualising the result

[65] Determining that the authority to modify regime contained in the HPTA 2014 does not apply to the land subject to the License at Maioro should not be seen, as suggested by Heritage New Zealand, as a retrograde step for iwi and in particular Ngāti Te Ata. As noted the Waitangi Tribunal itself, when considering Ngāti Te Ata’s claims in respect of Maioro in the Manukau Report, doubted that the heritage protection regime and in particular the HPA 1980 (then in force) gave proper protection to

38 Stewart v Grey County Council, above n 23, at 584. 39 Meridian Energy Ltd v Southland District Council, above n 6, at [46].

wāhi tapu given its focus on archaeological sites. Indeed the lack of protection given to iwi and their wāhi tapu has been the subject of numerous subsequent claims to the Waitangi Tribunal,40 while Pamela Bain giving evidence for Heritage New Zealand in the present case acknowledged the emphasis on researching, documenting and recording rather than protection.

[66] Likewise although a “Treaty clause” was included in the HPTA 2014 it does not impose any Treaty duties on decision makers under that Act or indeed any duties at all. Section 7, although headed “Treaty of Waitangi (Te Tiriti o Waitangi)”, simply lists a number of sections contained within the body of the Act which are provided in order to “recognise and respect the Crown’s responsibility to give effect to the Treaty of Waitangi”. Decisions under the authority to modify provisions remain the sole preserve of Heritage New Zealand, with no decision-making authority given to iwi including Ngāti Te Ata.

[67] It follows it is difficult to see how the UNDRIP, referred to by Heritage New Zealand, is engaged. The HPTA 2014 does not give iwi such as Ngāti Te Ata “the right to practice and revitalise their cultural traditions and customs” including “the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites …”41 There is no mechanism for any of these things to be carried out by Ngāti Te Ata. On the contrary it is the Maioro Koiwi Protection Plan developed by Ngāti Te Ata and New Zealand Steel, and to which the Crown is now a party, which gives a far more substantive role for Ngāti Te Ata than has ever been provided under the heritage protection regime including, in its present form, the HPTA 2014.

40 See in particular Waitangi Tribunal The Hauraki Report volumes 1-3 (Wai 686, 2006); Waitangi Tribunal Tauranga Moana, 1886-2006 volumes 1 and 2 (Wai 215, 2010); and Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010). 41 United Nations Declaration on the Rights of Indigenous Peoples, above n [31], art 11.

Decision

[68] The following declaration is made:

Neither Waikato North Head Mining Limited, nor the Crown, need any authority under the Heritage New Zealand Pouhere Taonga Act 2014 to undertake mining operations, including the related felling and removal of trees and necessary incidental works, such as soil disturbance and vegetation clearance pursuant to the Licence.

Costs

[69] As a result of agreement between the parties no issue of costs arises.

______Powell J