This newsletter summarises recent developments in law relating to resource management and local government in New Zealand that may be of interest to local authorities and decision makers. In this edition, we review recent decisions of the High Court in respect of a decision on applications under the Marine and Coastal Area (Takutai Moana) Act 2011, and a judicial review of a Board of Inquiry decision and the application of section 104D of the RMA. We provide an analysis of recent decisions concerning prosecutions for environmental offending, including a decision of the District Court which addresses the need to carry out a careful investigation prior to filing charges, and a decision which provides insight into the continued trend of high penalties for environmental offending. We also analyse the recent expert consenting panel decision approving the resource consents and notices of requirement for the Te Ara Tupua - Shared Pathway project under the Fast-track Consenting legislation. Over the past few months there has been considerable development in legislation concerning the environment and decision-making by local authorities, including a review into the future of local government, a NPS on outdoor storage of tyres, and sustainable freedom camping. In this edition, we briefly update on RMA Reform and consider the Exposure Draft of the proposed Natural and Built Environments Bill. We provide a more detailed review of the Exposure Draft in the link provided. 3 WWW.DLAPIPER.COM Re Edwards (Te Whakatōhea No.2)  NZHC 1025 Customary marine title and protected customary rights have been awarded by the High Court in Eastern Bay of Plenty in only the second High Court decision on customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA). This case made findings on a number of legal issues not determined in the previous case (Re Tipene  NZHC 3199) and it will have significant implications for MACA claims (particularly overlapping claims) that have not yet been determined. The case is Re Edwards (Te Whakatōhea (No. 2)) and it was issued in May 2021. The tests for customary marine title (CMT) are that the applicant group holds the specified area in accordance with tikanga and has, in relation to that area, exclusively used and occupied it from 1840 to the present day without substantial interruption. In terms of these 3 requirements, the Court found: • In terms of determining whether the area is ‘held in accordance with tikanga’: • It is not appropriate to import concepts of proprietorial interests as recognised at common law or other statutes dealing with land into the CMT tests. There is no requirement that the applicant must show a proprietorial interest consistent with other interests in land. • The purposes of MACA favour an interpretation which focusses on tikanga and the exercise of that tikanga, rather than reference back to common law or statutory property rights. • Holding in accordance with tikanga is determined by focussing on the evidence of tikanga and the lived experience of the applicant group. Whether it is ‘held’ involves a factual assessment that will be heavily influenced by the views of those who are experts in tikanga. PUBLIC DECISION-MAKING NEWSLETTER • When considering the requirement for exclusive use and occupation, the Court found there was an available concept of ‘shared exclusivity’. There can be jointly held CMT (not two overlapping CMT’s for the same area held by different parties) where this is agreed by the holders of joint CMT. However, it is not a ‘default’ outcome where two competing applicant groups are each claiming they have exclusive rights. • In terms of substantial interruption: • Raupatu (Crown confiscation of the land) was not substantial interruption. • An inference cannot be drawn that all activities carried out pursuant to a resource consent prior to MACA are automatically substantial interruption. It will be a fact specific exercise to determine in each case, as will whether a third party structure represents substantial interruption. • Reclamation will have an effect because the land in question is no longer in the takutai moana. • It is not consistent with the purposes of MACA to have substantial interruption arising from navigation, fishing and access to the area by third parties as those rights are preserved under MACA, even if CMT is granted. The tests for protected customary rights (PCR) are that the right has been exercised since 1840, has continued to be exercised in a particular part of the common marine and coastal area in accordance with tikanga (whether in exactly the same way or in a way that has evolved over time) and is not extinguished as a matter of law. There are a number of specific exclusions under MACA (eg, an activity that is regulated under the Fisheries Act 1996) and there has been some doubt around the types of activities that can be recognised as a PCR. This case has clarified the position in relation to a number of activities, including: • tītī (muttonbird), tōroa (albatross) and marine mammals (including whales) cannot be included in a PCR and nor can exercising kaitiakitanga or maintaining rangatiratanga, without manifestation of any physical activity. • non-commercial whitebait fishing can be recognised, as can karakia, use of certain stones, sand, mud and plants for cultural practices, collecting firewood and shells, launching and using waka for accessing fishing grounds, carrying out baptisms and planting and harvesting plant resources (such as for rongoā and kai) with the exception of seaweed. The Court also clarified there can be multiple overlapping PCRs and the fact that another group holds CMT does not prevent a different group from obtaining a PCR in the same area. Finally, the Court made a number of comments about the potential injustice brought about under MACA by the fact there is a dual pathway for applicants – through a High Court process or direct engagement with the Crown. In particular, where an application being advanced through litigation overlaps a different claim by another applicant group which is proceeding by way of direct engagement. If the High Court finds a group holds CMT in the overlapping area, this would effectively prevent the Crown from coming to an agreement with the other party who is not part of the litigation. This is going to potentially be a significant issue for applicants involved in Crown engagement, if they did not file a High Court application as well and the High Court application is heard before Crown engagement is concluded. This case is now subject to appeal.