Poutama legal hīkoi on hapū status continues

8:06 pm on 22 March 2021

Poutama's bid to have a court decision denying their iwi and hapū status recalled by the High Court has failed.

Artist impression of the Mt Messenger bypass project's southern tunnel entrance.

Poutama was denied its status by the Environment Court when it opposed part of the route of the NZTA Mt Messenger project, drawn here in an artist impression. Photo: Supplied

In a decision released following a telephone hearing, Justice Christine Grice said the High Court discouraged recalls and that the judgment must stand for better or worse, subject to appeal.

Poutama was denied its status by the Environment Court when it opposed part of the route of the Waka Kotahi NZ Transport Agency $200 million Mount Messenger project on State Highway 3 in the southern King Country.

Nga Hapū o Poutama kaitiaki Russell Gibbs said Poutama was seeking leave to bypass the next step in the appeal process, the Court of Appeal, and take the case to the Supreme Court.

"Poutama being tangata whenua pre-exists the Crown assumption of the right to govern in 1840, and also pre-exists the RMA (Resource Management Act)," he said.

"The concept of Crown recognition is a false narrative to support the illusion that councils or the court can confer or deny tikanga-based rights, authority, or status, such as the very existence of the Poutama as hapū, and tangata whenua, according to our traditional tribal structure, on our turangawaewae.

"The courts simply have to acknowledge the rights and existence of Poutama as tangata whenua, as confirmed in previous Waitangi Tribunal findings, the Māori Land Court, the High Court, and the Native Land Court."

Farmers Tony and Debbie Pascoe and the Poutama Charitable Trust appealed the interim consents granted in the Environment Court for the project on SH3, the main route to Taranaki.

Tony and Debbie Pascoe are going to the high court to challenge the Mt Messenger bypass project at Mangapēpeke Valley.

Farmers Tony and Debbie Pascoe appealed the interim consents granted in the Environment Court for the project on SH3. Photo: RNZ / Robin Martin

The appellants' lawyer, Sue Grey, argued the Environment Court went beyond its scope under the RMA when it ruled Poutama was not tangata whenua and did not hold mana whenua over the project area.

The recall of the decision was sought in part because of the recognition accorded Poutama in the Waitangi Tribunal's final Rohe Potae Report released on 22 December, 2020. The Environment Court decision denying Poutama status was made in 2019.

In December 2020, the Nga Hapū o Poutama claim (WAI1747) includes that various Crown actions undermined the identity, way of life, kaitiakitanga, mana, rohe, and resources of Poutama, and have amounted to "a systematic and sustained assault".

The Tribunal finding is that the Poutama claim is well founded in its entirety.

The Waitangi Tribunal finding, including in relation to Poutama rangatiratanga and kaitiakitanga, directly contradicts the Environment Court 2019 interim decision.

Justice Grice ruled that appeals are not the place to re-litigate factual findings. She said the Environment Court had an evidential basis for its decision and made no error of law in its assessment of cultural issues.

"Although the [Waitangi Tribunal] report may contain information that might have been relevant to Poutama's arguments in the Environment Court, it was not available either at the time of the appeal hearing or the Environment Court hearing. The Environment Court could not have considered it as evidence."

Justice Grice also said the Waitangi Tribunal was a standing commission of inquiry. Its reports were considered by the courts as respected sources of information and evidence. However, the Waitangi Tribunal was not generally regarded as a court that made findings of law or fact.

There had been recent legal developments as to the role of tikanga in the law, affecting whether the Waitangi Tribunal, in making findings of mana whenua, were in fact findings of tikanga, she said.

"However for the purposes of this recall application the recent Waitangi Tribunal report does not amount to a judicial decision of relevance and higher authority. This ground fails," she ruled.

The Pascoes and the Poutama Charitable Trust argue their rights have not been properly recognised and the bypass will create an environmental disaster in the Mangapepeke Valley, where the Pascoes farm beef cattle. The Transport Agency says the route is the least ecologically destructive and will deliver road safety and resilience improvements.

Waka Kotahi NZTA's suggestion Poutama could be tangata whenua under the Local Government Act and recognised by New Plymouth District Council but not under the Resource Management Act was ridiculous, Nga Hapū o Poutama kaitiaki Russell Gibbs said.

"One of the issues we have is even though the High Court determined the Environment Court findings are limited by RMA jurisdiction and process, the evidence in front of it, the Mt Messenger project area, and the resources available to the parties - Waka Kotahi NZTA are actively seeking to apply the findings against Poutama across the entire Poutama rohe."

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