617 - environmentcourt.govt.nz · a. affidavit of evidence (16 august 2016) in respect to the...

BEFORE THE ENVIRONMENT COURT Auckland Registry

ENV 2015 AKL 0000134

. 1

IN THE MATTER of the Resource Management Act 1991

AND of an appeal under Clause 14 of the First Schedule of the Act

BETWEEN TRUSTEES OF MOTITI ROHE MOANA TRUST

· AND

Appellant

BAY OF PLENTY REGIONAL COUNCIL

Respondent

STATEMENT OF EVIDENCE OF GRAEME JAMES LAWRENCE ON BEHALF OF. MOTITI ROHE MOANA TRUST

25th October 2017

Statement of Evidence of Graeme James Lawrence For Motiti Rohe Moana Trust F 25 October 2017

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1. INTRODUCTION

1. My name is Graeme James Lawrence. I hold a Bachelor · of Social Sciences and I am a

member of the New Zealand Planning Institute. I am a Director of Lawrence Cross

Chapman & Co Ltd now based in Devonport, and specializing in environ-mental planning

and resource management services provided to public and private clients in the upper

North Island.

2. I have been a planner working in environmental planning .either professionally or in

management for over 40 years. Prior to setting up my own practice in Planning in 1998 I

was engaged . by the Thames Coromandel District qouncil as the Manager of

Environmental Planning Services responsible · for the Council's policy development,

regulatory and monitoring functions. I was a planner providing district and regional

planning services in the Waikato and Thames Valley before that. I have been an Honorary

Lecturer in Geography at the University of Waikato until recently and I am a Director of the

Environmental Defence Society Incorporated.

1.3 I have been engaged in providing planning advice to various Maori entities now since the

early 1970's, contributed to iwi management planning exercises and commissioned and

supervised studies into investigations of various Maori land development issues. I have

provided planning evidence to the Environment Gourt and High Court in the Kawhia ·

Harbour suite of cases and for Te Runanga o Ngai Te Rangi lwi Trust (TRONIT) and

contributing hapu and Tauranga Moana lwi Customary Fisheries Trust in respect to the

Port of Tauranga Harbour Dredging case and for the former in respect to the Blakely

' Pacific Matakana Island subdivision case.

1.4 Recently I have been involved in cases involving preparation of the first District Plan

(Environmental Management Plan) for Motiti Island and variation 1 to the Bay of Plenty

Regional Policy Statement to give effect to the New Zealand Coastal Policy Statement

2010 on Natural Character and in Proposed Bay of Plenty Regional Coastal Environment

Plan Review.

1.5 Most recently I have been involved in providing planning advice to Motiti Rohe Moana

Trust, Ngati Makino Heritage Trust, Ngati Ranginui lwi Incorporated Society, Te Arawa ki

Tai Trust and Nga Hapu o te Moutere Matakana in respect to their appeals on the

Proposed Bay of Plenty Regional Coastal Plan.

1.6 In preparing this evidence I have taken into account changes to the Proposed Regional

Coastal Environment Plan agreed between parties, the Bay of Plenty Regional Policy


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Statement, New Zealand Coastal Policy Statement and (to the extent relevant under King

Salmon) Part 2 Resource Management Act as well as evidence produced for Ngati Makino

Heritage Trust (NMHT) and Motiti Rohe Moana Trust (MRMT). I was involved in a

workshop and mediation on the topics of Natural Heritage and lwi Resource Management

and have presented evidence to the Environment Court on these topics on behalf of

NMHT, MRMT, Ngati Ranginui lwi Incorporated Society, Te Arawa ki Tai Trust and Nga

Hapu o te Moutere Matakana.

1. 7 My ·evidence is prepared in support of the Motiti Natural Environment Management Area

(MNEMA) which I have introduced, and prepared evidence on, in previous hearings

before the Environment Court on the BOP pRCEP: .

a. Affidavit of Evidence (16 August 2016) in respect to the Application for Strike Out &

Declaration. ln that, 1 referenced provision on management of fishing activities in

the Marlborough Proposed Unitary Plan 2016, the use of Prohibited Activity status

to avoid fishing activities that would disturb seabed in identified marine sites and

summarized key s 32 RMA considerations for using a similar methods for part of

MNEMAas1:

• The cultural and environmental benefits of a prohibited activity rule

• Opportunity cost for harvesting species in discrete locations2

G Little overlap between fishing effort and ecologically significant marine

sites.3

• Efficiency of providing whole of community benefit in protection of

known sites and this benefit is greater than cost to individual fishers.

• Effective in achieving protection, will assist in achieving enhancement

and restoration.

b. Rebuttal Evidence (14 September 2016) in respect to the Natural Heritage Topic. In

that, one of the three main issues I addresseci4 was: ·

Maori cultural values and the relationship of tangata whenua with their

ancestral lands, coastal environment, taonga and resources are an inherent

component of natural heritage. There is a cultural dimension to natural

1 Affidavit of Evidence of Graeme James Lawrence dated 16 August 2016 paras 18-21 2 The balance Motiti Natural Environment Management area outside the Rahui ar~a not affected by the prohibited activity status 3 The case when Otaiti fishing closure was in place and the enhanced biodiversity and ecology restoration selfevident. 4 Rebuttal Evidence of Graeme James Lawrence dated 14 September 2016 para 1.6c


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heritage and this overlap needs to be addressed, not compartmentalized into

other sections of the proposed coastal plan. This needs to be recognized and

provided for to protect natural heritage from adverse effects.

c. Statement of Evidence (5 October 2016) in respect to the lwi Resource

Management Topic Setting out a Spatial Planning Framework (or architecture) and

identifying revisions which I considered were required to refine lwi Management

Issues Objectives and Policies in Parts Two and Three-of the pRCEP. In that, I

provided a spatial plan framework5 in the form of a Manag_ement Area with

explanation proposing it as a method similar to a zone and appended an evaluation

of an issues, objectives and policies framework for Management Plans.

d. Reply Evidence (6 December 2016) for NMHT and others for the lwi Resource

Management Topic expanding the Spatial Planning framework to provide an

opportunity for different Maori groups and Council to work together to.develop _as a

basis for co governance and co management, recognising the shortcomings of

ASCVs for that purpose.

e. First Statement of Evidence for MRMT (dated 23 December 2016) on the lwi

Resource Management Topic to update recommendations on spatial plans in light

of the Court's decision on the Declaration. 6

f. To the extent relevant, I adopt without repeating that evidence (Attachments 1-5).

1.8 I prepared evidence in support of MRMT's submission on the Rena applications for the I •

initial hearing and participation in the expert planning caucusing in preparation for the

hearing. With the Trust's withdrawal as .a submitter I took no further part beyond that point.

1.9 I have been authorized to prepare evidence and appear on behalf of the MRMT.

1.10 I confirm that I have read the Code of Conduct for expert witnesses contained in the

Court's Practice Note 2014 and that I agree to comply with the Code. I also confirm that I

have not omitted to consider material facts known to me that might alter or detract from the

opinions expressed in my evidence.

5 Statement of Evidence for Graeme James Lawrence dated 5 October 2016 para 28 6 [2016) NZEnvC 240 dated 5 December 2016

Statement of Evidence of Graeme James Lawrence For Motiti Rohe Moana Trust F 25 October2017

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2. Scope of Evidence

2.1 My statement focuses on the Motiti Natural Environment Management Area MN EMA

which comprises text and maps. A1copy is attachment 6. The MNEMA builds on

and refines my previous work and replaces earlier versions produced to the Court.

2.2 Although the interpretation of the recent High Court decisi!)n is ultimately a legal

issue, in recommending the MNEMA provisions set out in this statement, my

understanding of the recent High Court decision setting out the jurisdiction for

Regional Plans to control the effects of fishing is as follows:

.1 Regional councils cannot control land, occupation of coastal space or activities on the surface of water in the CMA to regulate fishing for the purpose (or object) of managing fishing or fisheries resources controlled under the Fisheries Act 1996 (FA).7 But the FA does not purport to address, let alone control, all the effects of fishing on the wider environment (including people and communities).8

.2 The sustainability function under the FA is focused on biological sustainability of the aquatic enviro[lment as a resource for fishing needs. By contrast, the RMA defines sustainability more broadly to include protection and environment more widely to mean ecosystems and their . constituent parts (including people and communities), and all natural and physical resources. 9

The Acts envisage parallel, complementary and overlapping management of fishing and the effects of fishing, where:

a. the FA has primacy on sustainable utilisation, namely:

i. the sustainable utilisation of fisheries resources now and in the future; and

ii. the effects of fishing on the biological sustainability of the aquatic environment as a resource for fishing needs.

b. regional councils remain tasked with the management of the effects or externalities of fishing on the wider environment as defined by the RMA 10 They cannot exercise the functions specified at s 30(1)(d) to regulate fishing for the purpose of managing the utilisation of fisheries resources or the effects of fishing on the biological sustainability of the aquatic environment as a resource for fishing needs. 11 But they are not prevented from exercising functions to control, when necessary, other effects or externalities of fishing activity on the environment. 12 They can manage the effects of fishing that are not directly related to

7 Section 30(2); Affomey General v Trustees of the Motiti Rohe Moana Trust[2017] NZHC 1429 at [7]. 8 [8]. . 9 (9] and [17]. 10 [1 0J-[12]. 11 [17] and [131]. 12 [13].


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biological sustainability of the aquatic environment as a resource for fishing needs.13

.3 In particular, for effects on M~ori values: 14

a. A regional council may exercise all functions in respect of matters ~aori, provided they are not inconsistent with the special provision made for Maori interests under the FA15 (see b. - d. below).

b. The FA's coverage is special when giving effect to treaty settlements. c. RMA controls must be developed in light of, among other things, FA

provision tor ensuring sustainability, including regulations relating to taiapure.

d. A council seeking to manage effects on Maori values must be careful not to duplicate the functions performed under the FA. A council seeking to recognise and provide for the relationshrp of Maori with their taonga must not derogate from the provision for Maori rangatiratanga made under the Part 9 of the FA. 16 ·

.4 For indigenous biodiversity: s 30(2) does not prevent the Council performing its s30(1)(ga) statutory function to maintain indigenous biodiversity.17 A regional council will need to be satisfied thatthe exercise of the s 30(1)(ga) function is demonstrably necessary to maintain indigenous biodiversity per se. 18

.5 For other effects: RMA control on other fishing effects such as intrinsic values, wahi tapu, navigation, natural landscape, and public access to the marine environment (such as non~fishing commercial, tourism or recreational activity (not an exclusive list)) would likely fall outside the s 30(2) restriction.19

2.5 In this statement I recommend the addition of planning provisions to:

a. Establish a framework for provisions so that they are structured in a manner

that can readily be incorporated into the pRCEP similar to the two zones

(Harbour Development Zone and Port Zone) already incorporated into the

Plan;

b. Provide MN EMA as a planning framework to manage the effects of fishing

activities on natural and cultural heritage values and providing for the

relationship thattangata whenua have with the land, waters and biotic and

abiotic taonga in the CMA of the Motiti Natural Environment.

13 [18], [109] and [132]. 14 [14}[15] and [19]. 15 [119] and [133]. 16 [129]. 17 [16]. 18 [129] and [134]. 19 [114].

Statement of Evidence of.Graeme James Lawrence For Motiti Rohe Moana Trust F 25 October 2017

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c. Provide a method that can be adopted for application in other locations and

circumstances; and can be incorporated into the pRCEP by 1st Schedule

RMA process by.others in the future as required.2°

d. Establish the basis on which the MNEMA provisions have been developed

and refined.

e. Assess the effectiveness, efficiency, costs and benefits of the policies and

rules proposed.

3. Motiti Natural Environment Management Area (MN EMA)

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3.1 MNEMA is a spatial plan proposed to be incorporated into the pRCEP to give relief to

the MRMT Appeal. It has been developed to provide a resource management

framework in the p_RCEP for the area generally shown as Motiti Natural Environment

on Map 21a of the RPS.21 MNEMA focuses on providing a management framework

for restoration and protection of intrinsic values, natural and cultura_l heritage from

adverse effects offishing activities, filling a gap in the pRCEP. It also future-proofs

the relationship tangata whenua have with the MNEMA for future generations; sets

up a spatial entity for co governance and co management; and enables additions to

be made by way of plan change in the future.

3.2 The Motiti Natural Environment (MNE) shown on Map 21 a identifies an area of

coastal marine area (CMA) in series of overlapping rings encompassing island and

reef systems around Motiti Island offshore from Tauranga and Mount Maunganui.

3.3 Within the MNE the Islands and reef systems named and identified in the RPS are:

a. Motiti Island

b. Motiti Island margins incorporating many small and islands and reef systems

c. Astrolabe Reef properly named Te Tau o Taiti or Otaiti

d. Te Porotiti (reef)

e. Okarapu (reef)

f. Te Papa (reef)

g. Motuhaku Island (also referred to as Schooner Island)

h. Motunau Island

20 As first set out in paragraph 28 Statement of Evidence) by Graeme Lawrence (5 October 2016) for Ngali Makino Heritage Trust (NMHT) Ngati Ranginui lwi Incorporated Society, Te Arawa ki Tai Trust and MRMT on the lwi Management Topic. 21 Appendix I BOP ORPS


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3.4 Of those listed above Astrolabe, Motuhaku, and Motunau are ranked as having

Outstanding Natural Character and Motiti Island margins as High Natural Character,

and shown on Map 21 Appendix I ORPS in more detail with the reef systems

associated with Motunau and Motuhaku included.

3.5 The natural character attributes and values of the islands and reefs shown on the

maps 21 and 21a are in Appendix J. These are not completely .described and

provided for in Appendix J. The descriptions and assessment of attributes:

a. for Motunau and Motuhaku do not include the associated reef systems.

b. for the islands, island margins or reefs shown on Map 21 do not have

attributes or values ascribed in accordance with matauranga Maori.

c. for Motiti Natural Environment Area do not include those for the features

shown on .Map 20 and separately described in Appendix J.

d. for Astrolabe reef above the 75m contour, are scheduled·separately from

those below the 75m which are included with those in the schedule for the

MNE.

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3.6 These inconsistencies can be overcome or addressed by having appropriate policies

and methods in the pRCEP that recognize and provide for integrated decision

making for activities within the MNEMA.

3. 7 The mechanisms implemented through the pRCEP are:

a. standards and terms which apply to different activity groupings within the

CMA

b. zones which are applied to areas of high modification and where new uses

would have relatively low impact.

c. overlays which are described as follows:

Overlays are used to identify the different values of the Bay of Plenty coastal marine

area, and trigger the application of specific policies and rules designed to manage

the potential adverse effects of activities on natw·al heritage (natural character,

natural features and landscapes and indigenous biological diversity), historic

heritage, recreation (including surf breaks) and areas of significant cultural value.

The overlays are marked on the maps of the Plan and described in the Schedules to

the Plan.

3.8 All the overlays listed apply in some shape or form within MNE of the RPS and in the

proposed MNEMA. The following series of maps apply the overlays to the CMA


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space identified as MN EMA and to discrete parts of the coastal environment within

MNEMA:

a. Map 43a Motiti Island identifying the following as ONFL 44

Okarapu Reef

Astralabe Reef

Schooner Rocks

Motunau Island (but not associated Motunau and Tokeroa reef systems)

b. Map 43a Motiti Island showing the island enlarged to depiGt the islets, reefs

and margins as ONFL 44

c. Map 43b entitled "Motiti Island - ecological" identifies:

the entire MNEMA as ASCV 25

and Motunau as ASCV 9.

Indigenous Biodiversity Area A (IBDA) overlays are:

Motiti Island A75

Astrolabe Reef A76 with uncommon and rare ecosystems

Motunau A77 and A78

Motuputa Island in the Motiti Island margins A79

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d. Maps 44a 44b and 44c for Motunau Island provide detail of the overlays

which appear to confirm they apply to the terrestrial component of the coastal

environment and do not include the CMA containing underwater extensions of

the island except in the case of the IBDA overlay A78 which is identified as a

regionally threatened ecosystem.

3.9 Each of the overlays has a schedule:

a. Schedule 2 IBDA Table 1 providing the special qualities for the areas A75,

A76, A77 and A 78 in terms of NZ Threat status; International Threat Status;

Threatened or rare ecosystems and vegetation types; habitat of indigenous

species at limit of natural range or rare; whether nationally significant; and

whether biodiversity values are protected by legislation. Qualities for

protection under NZCPS Policy 11 (a)(i) to 11 (a)(iv) and pRCEP Policy NH4(a)

fn each of the areas identified on Maps 43b and 44b are listed.

b. Schedule 3 ONFL provides the description and evaluation of ONFL 44 Motiti

Island margin and associated island reefs and shoals. Current uses listed

include commercial and recreational fishing and .diving; cross reference is

made to the ASCV 25 and attributes listed in Schedule 6.

c. · Schedule 4 contains management guidelines for natural features and

landscapes to be read in conjunction with "A Landscape Assessment of the


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Bay of Plenty Coastal Environment" Environment Bay of Plenty 1993. The

guidelines are silent on landform and features within the CMA. The headings,

guidelines, explanation and reasons are all focused on terrestrial landforms

and features. There is no guidance for activities. ONFL 44 description

includes Motiti Island margins and off shore islands of Motu haku and

Motunau as well as shoals and reefs around this grouping of islands.

d. Schedule 5 includes the Motiti island east coast surf break as a regionally

1 significant surf break.

e. Schedule 6 ASCV provides the description for ASCV 25 Motiti Island and

associated island and reef systems and in a general way for the whole of the

MNEMNEMA.

e. Schedule 15 for offshore islands refers to provisions in the Motiti Island

Environmental Management Plan (District Plan) and states:

"Appropriate use and development on Motiti island within ONFL, IBDA and

areas of high natural character (as identified in Appendix 1 to the RPS)

includes:" (inter alia) "activities and structures associated with boat launching

re_trieval and mooring in areas identified in Map 4 of the MIEMP."

3.9 In the maps and schedules the pRCEP identifies component parts of th~ area

identified as the Motiti Natural Environment in the RPS and reflects the state of ·

knowledge readily at hand to inform the schedules.

3.10 The information is incomplete. The schedules do not contain updated descriptions of

the state of the environment in respect to biodiversity or ecological health. They were

compiled prior to the uplifting of the Temporary Fishing Closure for around Otaiti on

10 April 2016. They not address effects of fishing activities on indigenous biodiversity

and relationships of tangata whenua with taonga. ASCV is based on submissions

and contains reference to many sites without spatial articulation. The ASCV 25

shown on Map 43b does not represent the boundaries of the ASCV. In the first

instance the boundaries needed to be drawn to coincide with the MNE area shown

on Map 21 a RPS and now need refinement to provide measurable boundaries that

delineate waahi tapu and waahi taonga locations and their buffers.

3.11 The MNEMA identifies the waahi tapu areas with 1-nautical mile radius around each

of the named areas to include buffers. A 3-nautical mile radius is provided around Te

Tau o Taiti (Otaiti Reef). This is shown on the plan to be produced by Di Lucas,


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which I have attached to my evidence as attachment 7. They are developed as a

planning response to the locations that Nepia Ranapia identifies in his evidence, and

in response to the cultural evidence of both Mr Ranapia and Mr Umuhuri.

3.12 The MNEMA is designed to:

a. address a resource management issue and objective in the pRCEP

addressed in Section 4 below

b. give effect to the suite of pRCEP resource management objectives identified

below that are directed at achieving integrated man~gement of resources to

achieve sustainable management of natural, physical and cultural heritage

from the adverse effects that fishing activities may have on them;

c. provide policy and methods to manage adverse effects of fishing activities on

marine habitat for indigenous flora and fauna that are taonga to tangata

wrenua;

d. the policies and methods are devised to ensure the mauri is restored and not

adversely affected by fishing activities, within the areas of special significance

to tangata whenua, identified by Umuhuri Matehaere and Nepia Ranapia, in

accordance with tikanga, as having waahi tapu status.

e. the polices and rules also provide for waahi taonga areas where fishing

activities may be carried out by way of consent once ecosystem health and

biodiversity has recovered sufficiently to a condition which is more likely to

sustain taonga species of flora and fauna.

f. within waahi taonga areas, establish an ecological state under which fishing

activities may be consented - subject to environmental thresholds (kina

barren level) or pre-conditions which need to be m·et before fishing -activities . I may commence. In this way fishing activities may establish within waahi

taonga areas, whether as restricted discretionary or discretionary activities,

having established that intrinsic values, mauri, health of the ecosystem and

indigenous biodiversity have recovered to a point of relative equilibrium and

that the nature and frequency of fishing techniques and methods ensure

these values are sustained.

g. establishing an indicator of ecological health that is reasonably efficient to

measure and without great expense and to be effective in determining

whether there is sufficient recovery to assess the effects of an application for

removal of marine flora or fauna. The advantages of using kina count as an

indicator of ecological health are addressed in evidence by Vince Kerr and Dr

Roger Grace.


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h. make provision in the MNEMA for the area to be managed by way of the

overlays and their policies and rule sets for activities other than fishing

activities. For this policies and rules are in place. The relevant policies will be

specifically referred to in the same way as the Port and Harbour Zones make

specific reference to policies elsewhere in the plan. In this way there is a clear

appreciation of the various policies and methods that work together for

various activities within discrete parts of the MNEMA.

This avoids unnecessary duplication while polices and rules already in place

have focused on a particular spatial area.

3.13 In referring to MN EMA as a "management area" I do so for two reasons:

a. to differentiate it from the zone technique which is described under Plan

Mechanisms in the pCEMP as .follows:

This Plan utilizes zoning to recognize those areas where there is a high level

of existing modification and where new uses and development may have a

relatively low impact. Within the Bay of Plenty coastal marine area there are

two zones: the Port Zorie and the Harbour Development Zone. These are

marked on the maps of this Plan.

b. to provide for management areas, as a technique, which applies methods and

rules to achieve objectives and policies for discrete areas within the Coastal

Marine Area;

c. In principle, the MNEMA could also f?e treated as a z9ne. There is no in

principle why spatially identified areas of the marine environment cannot be

zones.

3.14 Prohibited status applies to fishing activities within the waahi tapu to provide the

appropriate degree of protection for the high to outstanding biotic, abiotic, taonga

status, intrinsic values, and perceptual attributes and values of. natural character and

significant cultural values that apply within those areas. Prohibited status is directed

at managing all fishing activities within waahi tapu as the most effective means of

achieving recovery of ecosystems and biodiversity through natural processes without

interference, and to recognize and provide for their highly revered and tapu status. In

terms of s6(d) RMA, public access is encouraged. Tangata whenua wish to see the

wider public of recreational fishermen and divers a_nd commercial operators bringing

visitors, and developing a non-extractive relationship with the attributes and qualities

of waahi tapu areas.


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3.15 Consideration was given to non complying activity or discretionary status, as an

alternative to prohibited status; and whether fishing techniques and methods should

be sub-categorised, in a manner similar to marine protected areas.

a. . The most invasive activities of dredging, trawling and seine netting22 to be

prohibited activities. These activities produce significant adverse effects on

indigenous biodiversity within marine sites of ecological value and on marine

biodiversity within high natural character areas. Policy seeks to avoid adverse

effects or significant adverse effects within MNEMA. It was not only the

disturbance to seabed but the impact that these activities have on the

recovery of ecosystems and indigenous biodiversity. These "physical" abotic

and biotic effects are in addition to the esoteric, experiential and

perceptualimpacts of the relationship tangata whenua have with these areas.

It did not seem possible that these activities would pass the s104D gateway

test as non comp.lying activities.

b. Potting and gill netting23 were considered in the same manner as (a) above.

c. The question of whether other methods of fishing that may be consented

under appropriate circumstances, and if so by what consent path, became

problematic when cultural values were added to the biotic values and

attributes. The mapping of the waahi tapu areas provides a solution. It

separates out the highly sensitive areas providing certainty about where

fishing activities - the taking or remo~al of any indigenous flora or fauna -

would create unacceptable effects.

3.16 Once the waahi tapu areas were mapped, it became clear that all overlaid areas of

high or outstanding natural character included vulnerable reef ecosystems.

A consent path, whether or not biodiversity offsets were considered, would not

address waahi tapu values and policies directed at restoration of mauri.

3.17 The balance area of the MNEMA is identified as waahi taonga where fishing activities

set out in 3.15 a and b above are Restricted Discretionary or Discretionary Activities.

The relevant consent path depends on the state of ecosystem health , generally by

reference to kina barrens count.

22 SOE Rebeeca Stirnemann David Guccioni and Dr Grace 23 See SOE David Guccioni for bottom trawling and cray potting , & Dr Grace for ecological effects on shallow reefs


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4. Basis on which MNEMA has been identified and refined

4.1 The provisions give effect to the maps and schedules of values and attributes as set

out in the Operative RPS and are consistent with the pRCEP including:

a. the spatial representation and identification of the Motiti Natural Environment

(MNE) in the RPS including Motiti Island Margins, Motuhaku Island, Motunau

Island Astrolabe Reef.24

b. the schedule of attributes and values incorporating matauranga Maori for the

MNE in the RPS noting that at Otaiti they are only recorded below the 75m

contour, and at Motuhaku, Motunau and Motiti Island Margins (separately

identified on Map 21).25

c. the schedule of attributes and values for Astrolabe above the 75m contour,

Motuhaku, Motunau and Motiti Island Margins. The schedule for these does

not have matauranga Maori attributes and values ascribed to them in the

RPS.

4.2 "Issue 4" under "Natural Heritage" in the pRCEP26 establishes ·"unsustainable fishing

activity" as a resource management issue. Issue 4 states:

Issue 4

Loss of biodiversity values is occurring in some parts of our coastal

environment. Examples include loss of seagrass beds and areas of sandy

intertidal flats in Tauranga Harbour and loss and degradation of sand-dunes,

kelp forests and coastal forests across the region. The reasons for such

losses include:

(i) Urban development, including subdivision and reclamation.

(iij Increased sedimentation.

(iiij Habitat disturbance as a result of activities in or adjacent to the coastal

marine area.

(iv) Grazing by black swans and Canada geese.

(v) Impact of pest plant and pest animal species.

(vij Climate change.

(vii) Unsustainable fishing activity [emphasis mine]

24 Ibid Map 20 of 35 25 BOP ORPS Appendix J 26 BOP pRCEP Appeals Version 9.1h 28 April 2017.


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This issue is not subject to appeal.

4.3 Objective under "Objective 1 Integrated Management'' in the pRCEP states:

Objective 1

Achieve integrated management of the coastal environment by:

(a) Providing a consistent, efficient and integrated management framework;

(b) Adopting a whole of catchment approach to management of the coastal

environment;

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(c) Recognising and managing the effects of land uses and freshwater-based

activities (including discharges) on the coastal marine area;

· (d) Enabling kaitiakitanga;

(e) Planning for and managing:

(ij cumulative effects; and

(iij the effects of climate change;

(f) Promoting the sustainable management of the Bay of Plenty coastal

fisheries: and

(g) Providing for the future urban growth management areas identified in

Appendix E of the RPS without compromising other regionally significant

values of the coastal environment. [Emphasis mine]

A consent order issued in May 2016 finalized the wording of this objective.

4.4 The Resource Management Policies to achieve integrated management of the

coastal environment set out in Part Three of the Plan do not provide any polices to

address Issue 4 or Objective 1. Nor do any of the activity based policies and rule sets

in Part Four address the effects of fishing activities.

4.5 The MN EMA picks up and puts into effect several threads to provide fuller

implementation of Objective 1 having regard to other objectives in the pRCEP,\

namely:

a. Protect the attributes and values of ONFL and areas of high, very high and

outstanding natural character from inappropriate subdivision use and

development and restore or rehabilitate the natural character of the coastal

environment where appropriate.27

27 pRCEP Natural Heritage Objective 2


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b. In respect to ecosystems and biodiversity

"Safeguard the integrity, form, functioning and resilience of the coastal

environment and sustain its ecosystems by:

(a) Protecting Indigenous Bfological Diversity Areas A

(b) Maintaining Indigenous Biological Diversity Areas B

(c) Promoting the maintenance of indigenous biodiversity in general; and

(d) Enhancing or restoring indigenous biodiversity where appropriate. "28

c. In respect to lwi Resource Management there are 6 objectives including:

0 Active involvement of tangata whenua in management when activities

may affect their interests and values29

(3 Tangata whenua to undertake customary activities in the CMA, access

inter alia sites used for cultural practices and "areas of cultural

significance is maintained or enhanced. ,,3o

., The recognition and protection of those taonga, sites, areas, features,

resources or attributes or values of the coastal environment (including

the Coastal Marine Area) which are either of significance or special

value to tangata whenua (where these are known). 31

., Restoration or rehabilitation of culturally significant areas and the

mauri of coastal waters, "where customary activities or ability to collect

healthy kaimoana are restricted orcompromised".32

• Use where appropriate, cultural health indicators to recognize and

express Maori values and involve tangata whenua in monitoring the

state of the coastal environment and impacts of consent activities. 33

., Appropriate mitigation or remediation is undertaken when activities

have an adverse effect on the mauri of the coastal environment, areas

of cultural significance to tangata whenua or the relationship of

tangata whenua and their customs and traditions with the coastal

environment.

4.6 The MNEMA provides policies and methods to address the issue and to give effect to

the objectives referred to above by:

28 Ibid Objective 2A 29 Ibid Objective 12 30 Ibid Objective 13 31 Ibid Objective 14 32 Ibid Objective 15 33 Ibid Objective 16


632

17

a. Consistent, efficient integrated management framework for a discrete part of the

coastal marine area (CMA).

b. Applying a holistic approach to the integrity of ocean floor, land form, land type,

ecosystems and biodiversity.

c. Identifying an area that contains the main features and resources over which

kaitiakitanga is exercised by a people who have strong ancestral links with those

features, resources and taonga and who have mana whenua largely confined

within the area identified as MNEMA.

d. Plan for and manage effects of activities that have b~en identified as being

unsustainable.

e. Promotes sustainable management of the "natural ecosystem,"34 consistent with

the relationship those with mana moana have with those systems and the health

and functioning of them for future generations.

4.7 Experts engaged by MRMT address the effects that fishing activities have had on the

ecology and mauri of the CMA within the MNEMA and most noticeably around otaiti.

I do not propose to address those effects instead I rely on them and make the

following observations:

a. I visited Otaiti and Motiti Island on 26 June 2015 with Dr Roger Grace and

Diane Lucas on the boat trip and by air. I was able to observe'the state of the I

marine environment at otaiti and around Motiti island with an understanding

that came from the running commentary and observations that Dr Grace and

the Rena people on board provided. The contrast between the abundance of

marine life at Otaiti and the kiha barrens on the shallow reefs at Motiti Island

was clearly discernable.

b. The effect of the Rena Exclusion Zone established while the salvage ·

operation was underway was to exclude fishing and enable some recovery of

. marine life following a period of sustained fishing. This restored taonga

species and indigenous biodiversity.

c. The Bay of Plenty Times reported on 5 October 2016, five years after the

grounding of the RV Rena, .and approximately 5 months after the closure was

lifted and fishing commenced, a loss of recovering biodiversity and return to a

pre-Rena state. 35

34 A term which David Guccoine defines in his EiC para 4 as: defining a 'natural ecosystem' as one that functions as it did, without the influence of humans, other than for subsistencl} fishing qy small populations. It includes highly interconnected apex communities, with all size ranges, of all the naturally occurring species of flora and fauna present. 35 http://m.nzherald.eo.nz/bay-of-plenty-times/news/article.cfm?c ld=1503343&objectid=11717137 Statement of Evidence of Graeme James Lawrence For Motiti Rohe Moana Trust F 25 October 2017

633

18

4.8 My observation as a planner, not having expertise in marine sciences, is that the

information available on state of environment before Rena, during the closure with

restriction on fishing activities, and after is not perfect. Monitoring and information

gathering was for different purposes. It has provided a sufficient picture: of the e~ent

to which biodiversity was recovering and ecological health was restoring naturally . .

when the area was closed to fishing activities; the observable restoration _and

recovery that was occurring; the attention being given to the recovery (not

overlooking the expression of residual concerns) with tangata whenua rekindling their

relationship with the area including taonga species. The extent to which the recovery

has been set back as a result of fishing activities gives a strong indication that more

permanent measures to protect natural and cultural heritage values of the area from

the adverse effects of fishing activities are warranted in order to achieve the purpose

of the _RMA and directives of NZCPS, RPS and objectives of the pRCEP.

4.9 Research produced by MRMT's experts reinforces that:

a. Absence of complete state of the ei::i_vironment data is not sufficient reason to take

no action to protect identified values for indigenous biodiversity, intrinsic values

and relationship of tangata whenua with taonga species and taonga reefs or toka;

b. otaiti Reef has good levels of data, albeit arising from specifics of MV Rena

resorce consent application;

c. There is sufficient evidence of cause-effect arising from kina barrens to rely on

this as trigger/ indicator for resource consent;

d. My understanding of korero from MRMT's cultural witnesses is that kina was

once considered a delicacy and not damaging to mauri because of its

prevalence. Kina has now displaced the natural state of brown kelp within the

kina barrens described by Dr Roger Grace. Motiti faces what is described in the

literature as a "sliding environmental baseline". 36 This has damaged the

36 "1.6 The issue of sliding environmental base-lines Todays conditions may be far removed from what original ecosystems were like; both in terms of the spatial extent and configuration of habitats, and of the associated plant and animal populations they supported (e.g., Dayton et al. 1998, Jackson 2001 , Jackson et al. 2001). Past human impacts have been profound, but have often gone unnoticed, as each succeeding human generation has a different view of what 'natural' is, based on their own observations. This results in diminishing expectations of what is 'natural' in the oceans, i.e., sliding environmental baselines (Dayton et al. 1998). For instance, Airoldi & Beck (2007) found that coastal biogenic marine habitats of Europe, including wetlands, seagrass meadows, shellfish beds and biogenic reefs, had been virtually eliminated over the last several hundred years, w.ith less than 15% of the European coastline considered to remain in 'good' condition. They also noted that historical loss estimates were conservative: "even worse is the fact that these losses are only measured againsf'recent distributions with little recognition of the compounding impact of centuries and millennia of habitat loss". Similarly, Lotze et al. (2006) assessed impacts in North America and European systems, and found human impacts to have depleted more than 90% of formerly Statement of Evidence of Graeme James Lawrence For Motiti Rohe Moana Trust F 25 October 2017

634

19

ancestral and contemporary relationship of tangata whenua with taonga species

and taonga reefs for reasons explained by Mr Ranapia and Mr Matehaere.

4.10 The issue statement together with the objectives on integrated management, natural

heritage and iwi resource management establish the need for appropriate measures

to be put in place to address the impact that fishing activities create on the

environment with particular attention to protecting the values and attributes of

ecosystems and biodiversity values within areas of outstanding, very high or high

natural character. Biodiversity values include cultural values ..

4.11 The MNE is· in its entirety ASCV 25 Map· Sheet 43b where the waahi tapu in the

Table below are listed in the Schedule 6:

Traditional Area Reference Traditional Name -

Te Maamangi VX12 Otaiti

Okarapu VW13 Okarapu

·okani VX14 Omaroa

Matarehua VX15 Rua o Taane

Mataraakiitia VX16 Mataraakiitia

Tokoroa VX17 Tokoroa

Motu Haku VX19 Motu Haku

The following waahi tapu areas are not shown or listed in ASCV 25:

Te Papa

important species, destroyed 65% of seagrass and wetland habitat, degraded water quality, and accelerated species invasions. They concluded that "the structure and functioning of estuarine and coastal habitats has been fundamenta/fy changed by the loss of large-predators and herbivores, spawning and nursery habftat, and filtering capacity that sustains water quality'. They offered some hope for restoration, noting that as overexploitation and habitat destruction were responsible for most historical changes, their reduction should be a major management priority; and that despite some extinctions, most species and functional groups still persisted, albeit in greatly reduced numbers, and so recovery potential remained. Where human efforts focussed on protection and restoration, recovery had occurred, although usually with significant time lags (see also Lotze et al. 2011).

New Zealand has not escaped such impacts, despite its short history of human settlement. Morrison et al. (2009) concluded that the impacts of past human land use were likely to have been high on coastal systems and species, especially through sedimentation. Parsons et al. (2009) found evidence of large reductions in the abundance and size of snapper from estuarine and very near-shore habitats where once they were commonly caught, and the probable loss of some behavioural groups. Taylor et al. (2011) used long-term diver recollections of the Poor Knights Islands Marine Reserve to show large and steady long term declines in abundances of black corals, tube sponges, packhorse lobster, and large predatory fishes. Shears (2010) highlighted changes on Meola Reef, Waitemata Harbour (Figure 3). Given the existence of sliding baselines, marine resource management including fisheries should be viewed not only in the context of managing what currently exists (at an arbitrary point in time), but also in the context of what was historically present, and what the system might look like in the future, given pragmatic and realistic mitigation and/or restoration research and management strategies."

Statement of Evidence of Graeme James Lawrence For Motiti Rohe Moana Trust F 25 October 2017 .

635

Nukutai

Motu Haku

Porotiti

otawhao

The following are not listed as separate areas

Okani

Omaroa

Matarehua

Rua o Taane

20

4.1 O The 14 waahi tapu sites are spatially identifed in the MN EMA with appropriate buffers

so that each site and its buffer is shown within a 1 nautical mile circle. The 1 nautical

mile representing site and buffer to ensure tl1e mauri, mana and tapu of each is

observed.

Many of the waahi tapu sites overlap. This provides for cultural and spiritual values

and also supports the natural heritage values recognising ecological connectivity

within the marine environment.

4.11 My planning response to the evidence, both expert and anecdotal a$ well as my own

observations, was that fishing activities had significant adverse effects on the natural

state of the environment and the relationship tangata whenua had with the area. To

encourage restoration of mauri and ecological health and biodive~sity; and to avoid,

remedy or mitigate adverse effects on· the natural heritage values (natural character,

ONFLs, and IBDAs), intrinsic values, cultural attributes (ASCVs) and values present,

it would be appropriate to introduce management controls to ensure adverse effects

of fishing activities were avoided, remedied or mitigated.

4.12 Review of the pRCEP objectives, policies and methods which showed that the

objectives aligned with the RPS and the policies seemed to repeat or echo those

already in place. 37

4.13 Th~re are no policies or methods to manage the effects offishing activities on the

natural and cultural values and attributes of Motiti Natural Environment identified and

scheduled in the RPS or pRCEP. In that sense, the pRCEP does not give effect to

37 See Statement of Evidence by Graeme Lawrence dated 5 October 2016 following an analysis of RPS objectives and policies at para 15 the conclusion: 'Rather than implement these objectives and polices, the RCEP reworded them."


636

21

the RPS. There is a need to provide polices and methods to achieve the objectives

and to avoid adverse effects of fishing methods on the outstanding qualities of the

area and to avoid significant adverse effect on the values and attributes of the areas

of high and very high natural character.

4.14 The RPS provides the following methods to implement policies:

a. In consultation with tangata whenua, identify sites of significance or special

value. 38

b. Take into account iwi and hapu rese.urce management plans in assessment

of effects. 39

c. Facilitate and support community based ecological restoration programmes

focused on protection restoration or rehabilitation of natural features and

ecosystems. 40

d. Promote the enhancement of mauri.41

e. Identify areas for restoration or rehabilitation of natural character. Priority

areas include: where natural character has been compromised or natural

character areas in the RPS identified as important in hapu resource

management plans. 42

f. Non regulatory methods include supporting industry lecJ environmental

accords, guidelines and codes of practice.43

4.15 In all the above cases the regional council is identified as having implementation

responsibilities.

4.16 The pRCEP sets out non. statutory methods in Part Five. These include:

a. Monitor and report to assess effectiveness of the plan and whether objectives

have been achieved44. Without policy and rules to manage the effects of

fishing activities, the objective 1 integrated management of the CMA through '

sustainable management of coastal fisheries is not likely to be achieved.

38 ORPS Method 8 39 Ibid Method 12 40 Ibid Method 25 41 Ibid Method 43 42 Ibid Method 56 43 Ibid Method 72 44 pRCEP Part Five Method 1 Statement of Evidence of Graeme James Lawrence For Motiti Rohe Moana Trust F 25 October 2017

637

22

b. Support research to identify where ecosystems and biodiversity values are or

are likely to be adversely affected by fishing activities and investigate options

available to manage fishing activities for the protection of biodiversity.45

c. Facilitate and support tangata whenua to exercise kaitiakitanga and apply

matauranga Maori in the sustainable management and restoration of natural,

historic and cultural heritage and water quality in the coastal marine area.46

d. Work with tangata whenua to identify degraded cultural sites in the coastal

environment which tangata whenua wish to restore for natural heritage and

cultural reasons.47

4.17 The MNEMA is identified as an area for restoration by MRMT. The waahi tapu areas

have been identified as areas for restoration and full protection from fishing activities

in accordance with the Motiti Island Native Management Plan 2011 and identified in

the evidence of Nepia Ranapia as to the significance of those areas to tangata

whenua. They incorporate reef ecosystems described in evidence by Dr Roger

Grace, Dr Phil Ross, Vince Kerr and David Guccione. The effects of fishing activities

in and around Otaiti and the shallow reef systems of the MNE have been identified in

evidence and the do ·nothing option rejected as inappropriate or ineffective to pro~ect

and preserve indigenous biodiversity and relationships of tangata whenua with

taonga.

4.18 The non statutory provisions set out above have resulted in identifying provisions to

incorporate into the pRCEP to manage effects of fishing activities to achieve

restoration of degraded areas in culturally significant locations for natural and cultural ·

heritage reasons. Two areas are provided so that the restoration leads to permanent

protection and maintenance in highly valued areas (in respect to natural, intrinsic and.

cultural values) and provides a restorative condition which could then sustain

managed levels of fishing activity.

4.19 Rules in the pRCEP cover a range of activities but not fishing. Activity based policies

and rules are in Part Four and grouped according to 11 topics: Examples of activities

in the CMA that have prohibited activity status are:

a. For Open Space New Structures in IBDA or in ONC except where

provided for by another activity status - swing moorings in an identified

45 Ibid Method 3A 46 Ibid Method 14 47 Ibid Method 18A Statement of Evidence of Graeme James Lawrence For Motiti Rohe Moana Trust F 25 October 2017

638

23

mooring area; monitoring and sampling structures; removal of abandoned or

derelict structures; m~intenance of lawfully established structures; temporary

maimai; structures or o,ccupation and use associated with restoration

protection navigation etc. Terms and conditions apply.

b. For disturbance, deposition and extraction - Fracking in CMA; a list of 8

specified activities including disturbance associated with prospecting or

exploration for and mining of sand, shell , shingle and minerals, dredging and

spoil disposal in IBDA and ONC; disturbance of foreshore or seabed by use

of vehicles in .lBDA. Conditions apply.

c. Coastal discharges of untreated sewage from land based activities and

from ships and offshore installations to or within specified areas.

d. Reclamations for specified purposes.

e. Aquaculture New commercial aquaculture in high value areas (includes

IBDA; ONC; within 3 nautical miles of shipping lanes or navigable river

mouths; mooring areas shown in Plan Maps, Port and Harbour Zones.

f . Biosecurity Mechanical harvesting or introduction of spartina and saltwater

paspalum; Introduction of exotic species into significant natural areas.

4.20 Fishing activities involving dredging, trawling and potting all have similar impact on

natural heritage values as those listed above. They result in physical disturbance to

the ecology of reef systems and sandy ocean floors, reducing biodiversity and

threatening the recovery of ecological health and restoration of the mauri of areas of

particular cultural significance. Cultural significance because. of their natural and

spiritual values embodied in the waahi tapu areas located in ASCV 25 Schedule 6

and those identified in the hapu management plan, Mr Matehaere and Mr Ranapia's·

evidence and the MNEMA as waahi tapu.

4.21 When the cultu'ral values of the waahi tapu areas are taken into account, the taking of

flora or fauna from them will affect the restoration of mauri, impede natural recovery

and offend _cultural values of tapu. For this reason, all fishing activities but not public

access for scientific, education or passive recreation or dive and tag activities should

have a prohibited activity status; or (in the alternative) non-complying. in the balance

of MNEMA, the waahi taonga area, the methods recommended are to achieve an

environmental state that would support non-invasive fishing activities that align with

identified environmental thresholds. This identifies, maintains and protects

indigenous biodiversity, intrinsic and cultural values.


639

. 24

5. s32AA Assessment

5.1 The s 32AA assessment in the first instance involves consideration of alternative

methods - those other than RMA. The options are:

a. Marine Reserve under the Marine Reserves Act 1971, These are referred to

as Marine Protected Areas Type 1 (MPA Type 1) because of the high level of

protection they provide. A broad range of activities can be managed,

controlled or excluded.

b Marine Protected Areas Type 2 (MPA Type 2); There are a broad variety but

to be Type 2 they must meet a protection standard which requires prohibition

of bottom trawling, 0'3nish Seining and dredging (amateur and commercial).

In some locations and conditions bottom gill netting and potting may be

required to be prohibited and other fishing and non-fishing activities shall not

unduly disturb ecological systems, natural species composition and trophic

linkages. Currently work on identifying locations to establish a network of

representative examples ~fa full range of marine habitats and ecosystems is

being carried out. This is a much larger project on a grander scale than

appropriate in the Bay of Plenty region. It may take some time to identify, let

alone establish, networks of representative examples through the north

eastern biogeographic region (or bioregion of NZ) comprising the entire east

coast of the north island from west of North Cape to East Cape.

c. Temporary Closure to Fisheries under Section 186A Fisheries Act.

An application for closure has been made and refused.

5.2 The. options consider~d above, u~der other legislation, cannot deal adequately with

the RMA purpose or range of matters addressei:l under the RMA by the NZCPS and

RPS. Nor can they manage effects of fishing appropriately, taking into account the

natural, intrinsic and. cultural considerntions within the CMA at a regional level in the

manner provided for by way of the pRCEP.

5.3 A brief evaluation of the use of a generic Management Area or Management Plan as

a method to manag!3 areas of high value in order to achieve an appropriate restored

natural state recognizing and providing for indigenous biodiversity and tangata

whenua values is set out in attachment 7._This establishes that the proposed

Management Area approach provides an effective and efficient means of achieving

RPS and pRCEP objectives.


640

5.4 Fuller evaluation of the proposed MN EMA comparing do nothing option with the

Council's option and the MN EMA option is set out in the Table in Attachment 8.

6. Conclusion

25

6.1 For the reasons set out above and in the expert evidence produced by MRMT I

recommend the amendment of the pRCEP to incorporate the MN EMA provisions in

attachments 6 (text) and 7 (map).

Graeme Lawrence

Planner

25 October 2017

Statement of Evidence of Graeme James Lawrence For Motiti Rohe Moana Trust F 25 October 2017 ·

641

Bay of Plenty Regional Policy Statement

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MARLBOROUGH ENVIRONMEN·T PLAN

Section 32 Report ;. .

Chapter 8: Indigenous Biogiversity

Publically notified 9 June 2016

J/. <

This is the exhibit marked "GJf..-2" referred to in . ~43

the annexed affidavit of GRAEME JAMES

LAWRENCE sworn at Devon port thi{/:/~ of

August 2016 bet me:

q e

•

f(. • Section 32: Chapter 8 - Indigenous Biodiversii:y

Working Group, Land Information New Zealand (for both pastoral lease and non-pastoral lease land) and Crown Forest.

In mid-2013 the Council released a set of draft provisions for community feedback. Although the main focus of the provisions was related to policy and rules for the coastal environm~nt, certain other policy, including that on indigenous biodiversity, was also released. Although limited feedback was received on the indigenous biodiversity provisions specifically; what was received helped to further inf_orm development of the provisions.

Evafuataon for ~ssll.lle 8A

Issue 8A -A reduction in the extent and condition of indigenous biodiversity in Marlborough. .. Approprnateness of Objectives 8.1 and 8.2 Objective 8. 1 - M§rlbbrough's remaining indigenous biodiversity in terrestrial, freshwater and coastal environments is protected. ·

Objective 8.2 -An increase in area/extent of Marlborough's indigenous biodiversity and restoration or improvement in the condition of areas that have been degraded.

t

Relevance The objectives are highly relevant in addressing the resource man!:!gement issue in BA. As there has been considerable loss of indigenous biodiversity in Marlborough, it is important that remaining areas are protected and that their condition is maintained and improved where opportunities arise. Protection in this context is intended to be considered in Its broadest sense and may include legal protection as well as fencing, active pest control, regulation and improved land management practices. For Objective 8,2 the focus is on the restoration and re-establishment of some of what has been lost or degraded.

The RMA provides for the management of aspects of indigenous biodiversity through Section 5(2)(b) in which the life-supporting capacity of air, water, soil and ecosystems are to be safeguarded. In addition, there are specific roles and functions set out in the RMA in relation to protecting significant natural areas and habitats and maintaining indigenous biological diversity. These function~ enable the Council to: ,'{ • c:

0 establish, implement and review objectives, policies ;:ind methods for maintaining indigenous biological diversity [Section 30(1)(ga)J; and

" control any actual or potential effects of the use, development or protection of land for the purpose of maintaining indigenous biological diversity [Section 31 (1) (b )(iii)].

Matters of national importance in Sections B(a) and 6(c),ofthe RMA require the Council to recognise and provide ·for the pre&~rvat1on of the natural character of the coastal environment, wetlands, lakes, rivers and their margins and the protection of areas of significant inc;ligenous vegetation and significant habitats of indigenous fauna. These matters help to protect biodiversity as important components 'of 1 Marlborough's natural heritage. In addition, Objective 8.2 helps to achieve the purpose of the RMA through having regard to a number of Section 7 matters, namely amentty, kaitiakitanga, quality of the environment and ecosystem values.

The inclusion of these objectives, especially Objective 8.1, helps to achieve the NPSFM, where for both water quantity and quality reasons there are hi9h level objectives concerning the safeguarding of indigenous species and associated ecosystems, protecting the quality of outstanding freshwater bodies and prqtesting, the significant values of wetlands. This objective also helps to achieve the NZCPS in which specific direction to protect biological diversity in the cqastal environment is included. For Objective 8.2 there is also directron through NZCPS Policy i4 on the restoration of natural character in relation to enhancing and restoring indigenous biodiversity.

The objectives also help to protect indigenous biodiversity as an important component of Marlbor_ough's natural heritage and gives -recognition to central government's !statemElnt of national priorities' for protecting rare and threatened indigenous biodiversity on private land (June 2007).

13

644

Section 32: Chapter 8 - Indigenous Biodiversity

Feasibility The level of uncertainty and risk as to whether the objectives are feasible is considered acceptable. On the one hand, the Council is in a better position to be able to achieve the objective than it would have been 10 to 15 years ago, given the infonnation that has been gathered through the landowner surveys as part of the Significant Natural Areas project as well as the gathering together of infonnation on Marlborough's ecologically significant marine sites. Having knowledge about where Marlborough's significant natural sites are is an important step in being able to aetermine the appropriate · mechanisms to be put in place to achieve protection. On the other hand, the Council has not had access to every property )n Marlborough, so there are gaps in the infonnation base. Additior.ial)y, for the coastal marine area, there are significant challenges in identifying areas of marine biodiversity value as they are located under water.

There will always be a level of risk associated with the protection of areas with biodiversity value. Even knowing where the areas or sites are does not always guarantee that protection will occur. For significant areas and sites on private land, protection relies heavily on tlie willingness of landowners to do so. This is why the Council has taken a strong stance on a 'non-regulatory approach in the first instance towards protection.

The other factor in detennining fec;1sibility is in relation to whether the objectives can be achieved within the Council's powers, skills and resources. The .objectives are certainly feasible in relation to the Council's powers, as explained in fhe statutory obligations section of this evaluation report and the Council has the skills available to achieve the objectives. In terms of resources, there has been significant investment by the Council, landowners and· central govemm·ent to achieve protection of significant sites on private land. The extent to which resources continue to be available may have some bearing in the future a~ to whether protection efforts are able to be continued.

For the coastal marine area, the resourc~s to detem1ine areas Wifh significant biodiver~ity value have to date beeh supplied by the Council for investigations and monitoring. lnfonnation has also been gathered through the re~outce consent process. where developer~ have had to undertake benthic investigations as part of determining the adverse effects of a proposal.

Acceptability The uptake of landowner involvement in both the 5ouncil's significant natural areas project and the Department of Conservation's pr9tected natural areas programme highlights widespread community support for information about significant sites and opportunities for protect1on. Further, the more recent work undertaken to identify Marlborough's significant wetlands has also shown there to be wr desprea·d interest in identifying these sites.

The consultation undertaken throughout the Vqrious stages of the review ~f the MRPS, MSRMP and WARMP has also shown there to be strong support for a need to protect Marlborough's remaining areas with significant indigenous biodiversity value in terrestrial, freshwater and coastal environments as well as for the restoration and enhancement of areas that have become degraded.

I

It is hot considered the objectives will result in unjustifiably high costs to the community or parts of the community. Currently-within the coastal marine area, most activities lil<elyfo affect marine biodiversity values require a resource consent, so the costs for protection are already apparent under the current resource management framework of the MSRMP and WARMP. For indigenous biodiversity on private land, the current voluntarf af!)proach towards profecti_on is being continued. This means there is only a cost to landowners where they may wish to undertake an activity that affects the area with biodiversity . value. This is what c,urrently occurs, so there are no additional costs.

There is a cost to the community for the non-regulatory me~ns of protection; however, this is also .a cost that currently occurs; What is important to acknowledge is that the partnership approach with landowners is key in prote.cting as well as restoring and enhancing indigenous biodiversity.

14

645

Section 32: Chapter 8 ~ Indigenous Biodiversity ·

whether a particular activity will have an adverse effect on biodiv!=)rslty values. The policy sets out the effects that can occur on indigenous biodiversity values more clearly than the policies of the current resource managem.ent plans.

:~ "

Depending on the environment within which the subdivision, use or development is to take place and the particular values associated with the site and degree of effect likely to result from the proposed activity, a determination can be made as to whether the effects should be avoided in terms of Policies 8.3.1 and 8.3.2 or cali otherwise be remedied or mitigated.

Costs It is anticipated th.at the costs of the policy will be no greater than those currently incurred under the MS.RMP and WARMP. If anything this policy should result in reduced costs, as it provides greater definition regarding identifying the effec,ts that can occur on indigenous biodiversity _values.

Efficiency The policy is considered to be efficient for the same reasons set out in the Costs evaluation.

Effectiveness Policy 8.3.5 is effective ·as it sets out guidance for the adver~e effects on indigenous biodiversity values to be avoided or otherwise remedied or mitigated in a Marlborough context. It targets those matters that have been highlighted and learned through the Council's significant natural areas project, the investigation_ ~,Qd !de~tifi~ati~n o~ signifi?ant wetland~ and ecolo~ic~lly sign(ficant marine sites._ It also helps to ao!ileve Objective 8.1 m relation to protection and ObJect1ve 8.2 m terms of restoration and enhancement.

Policy 8.3.7 ·

Policy 8.3.7 -Within an identified ecologically significant marine site fishing activities using techniques that disturb the seabed must be avoided.

Benefits Some fishing activities use techniques·that resulbin disturbance of the seabed. Depending on where this occurs, there is the potential far adverse effects on marine biodiversity. The policy seeks to avoid use of these techniques in areas identified as having significant biodiversity value in the coastal marine area. There are significant environmental and cultural benefits from this approach, which -will be implemented through a prohibited activity rule. This is the first tim_e such an approach has been used in Marlborough and it is put in place in acknowledgement t!iat there have been significant adverse effects on marine biodiversity· from some fishing techniques. The eGologically significant marine sites to which the prohibition will apply will be mapped in the" MEP, which will provide certainty about where the prohibition applies as well as raising awareness of Marlborough's significant marine ·~ . " . Costs There will be some opportunity cost for harvesting marine species with {he prohibition. However, this is at discrete locations where in many instances tecliniques that disturb the seabed would not be used; for example, in a reef habitat. Cons1,1ltation with the Ministry for Primary Industries on the prohibition also highlighted that currently there Was little overlap between fishin,g effort and the ecologi9ally significant marine sites.

Efficiency While there are some costs associated with a prohibition, consultafion has indicated there· is little overlap between th~ ecologically significant m;:irine sites and where fishing effort occurs. It · is considered there is a whole-of-community benefit in protecting !<nown sites from potential disturbance by fishing activities and that this benefit is greater than the cost to individual fishers.

Effectiveness The policy will be v.ery effective in achieving · Objectives 8, 1 and 8.2. From a protection perspective, preventing activities that will disturb the seabed in ecologically significant marine sites will help to achi~\ie Objective 8.1. From a restor?tion and enhancement viewpoint, _the work undertaken to identify the ecologii:;ally significant marine sites in 2011 noted that many of the sites were fragile and therefore vulnerab~ to human disturbance and damage from a variety of sources. The report went on

25

646


to note that: "Many more sites could be considered signfficant in the future if they were managed and allowed to recover to the state they would have been before human acbvities degraded them."5

Therefore the prohibition in re)ation to Objective 8.2 will be effective as these significant sites wm be given the opportunity to recover-from previous human activities.

Policy 8.3.8

Policy 8.3.8 - With the exception of areas with significant indigenous biodiversity value, where indigenous biodiversity values will be adversely affected through land use or other activities, a biodiversity offset can be considered to mitigate residual adverse effects. Where a biodiversity offset is,proposed, the following criteria Will apply:

(a) the offset will only compensate for residual adverse effects that cannot otherwise be avoided, remedied or mitigated;

(b) t'ie residual adverse effects on biodiversity are capable of being offset and will be fully compensated by the offset to ensure no net loss of biodiversity; ·

(c) where the area to be offset is identified as a national priority for proiection under Objective 8.1, the offset must deliver a net-gain for biodiversity;

( d) there is a strong likelihood that the offsets will be achieved in perpe~ity;

(e) where the offset involves the ongoing protection of a separate site, it will deliver no net loss and preferably a net gain for indigenous biodiversity protection; and

(fl offsets should re-establish or protect tlie same type of ecosystem or habitat that is adversely affected, unless an alternative ecosystem or habitat will provide a net gain for indigenous biodiversity.

Benefiis The main benefit of a biodiversity offset is to ensure there is no net loss and preferably a net gain of biodiversity with respect to species composition, habitat structure and ecosysl~m function. The ability to use a biodiversity offset to mitigate residual adverse effects provides flexibility in approach to dealing with effects. However, it is clear that an offset is only to compensate for residual adverse effects that cannot othetwise be avoided, remedied or mitigated and that biodiversity offsets should not be considered in ar~as· that have been assessed as having significant biodiversity value and where adverse effects on these values are to be avoided.

The use of biodiversity offsets acknowledges a trend where an applicant undertaking a development has offered compensation in a different location as a means of mitigation. Inclusion of this policy provides some rigour to assessing whether a biodiversity ,offset may be appropriate. . There is a preference for the re-establishment or protection of the same type of ecosystem or habitat to avoid the difficulty of assessing relative values of different ecosystems or habitats of different species. Tradeoffs involving different species will not always adequately compensate for the loss of the originally threatened species. However, the policy doe_s recognise that where significant indigenous biodiversity benefits can be achieved, the protection of other habitats may be appropriate.

Costs Biodiversity offsets will only be used in a resource consent situation, either where standards_ of a permitted activity cannot be complied with or where a discretionary activity resource consent is othe,wise required, so costs are already incurred by an applicant. The opportunity to use a biodiversity offset is provided to applicants but there is n9 compulsion to use t

Efficiency and Effectiveness There needs to be certafoty that the proposed offsets will occur. However, it is acknowledged that offset measures such as indigenous planting will take a long time to establish and become useful in a biodiversity role. Therefore, while relative to cost there would be an overall benefit to the wider community from applying a biodiversity as proposed, it is difficult to determine whether this approach will be efficient or effective in the long term. It wiJJ oi:ily be with subsequent monitoring that a determination can be made as to the efficiency or effectiveness of this policy.

5 Davidson RJ; Duffy CAJ; Baxter A; DuFresne S; Courtney S; Hamill P. (September 2011). Eco!ogica/fy significant maline sites in Marlborough, New Zealand. Coordinated by Davidson Environmer)tal Limited for Marlborough District- page 128.

26

647


Methods olf nmp!ementatton The most significant changes in the methods of implementation from the current MRPS and the two resource management plans are:

o the inclusion of new prohibited activity rules for fishing techniques that disturb the seabed in ecologically significant marine sites and for activities in a small number of the significant wetlands; and · ~

" a new method that sees significant wetlands being mapped in the MEP, /{. .

An assessment of why these methods have been included has already been undertaken in the preceding evaluation.

The other methods set out in Chapter 8 of Volume 1 of the MEP are not new, having al.ready been implemented to some degree through the current MRPSJ MSRMP and WARMP. What is different is that with the benefit of the investigations of Marlborough's significant biodiversity sites over the past 10-15 ·years, the Council has a greater understanding of Marlborough's environments and the methods can be taken further than they have been in the past. For example, the identification of

. ecologically significant marine sites in the MEP was acknowledged to be based on existing data or information, but was incomplete. This was because many areas had not been surveyed or the· information available was incomplete. Subsequently the Council resurveyed some sites prior to notification of the MEP and a commitment to ongoing monitoring and investigation has been included in policy.

For sites on private land, a move towards monitoring of significant sites as opposed to identification has also occurred. The initial survey work was largely completed inJhe nine year period from 2001 to 2009 (inclusive) and further occasional field surveys have been carried out at the request of landowners since that period. However, the Council is now moving more towards site monitoring to determine the effeitiveness of protection efforts, as well as consideri~g .how well no11-managed sites have fared. Ongoing commitments to this are included in the MEP.

Other options considered to achieve Objectives 8.1 and 8.2 Three other options were considered by the Council to achieve Objectives 8.1 and 8.2. They were:

1. Status quo in terms of the existing provisions of the MRSP, MSRMP and WARMP The MRPS currently has a range of provisions that apply to indigenous biodiversity and can be found in two of the five regionally significant issues:

" protection of water ecosystems (wetlands, lakes, rivers, groundwater and coastal marine areas); and

" protection of land ecosystems,

The objectives under the issue of protecting water ecosystem~ are based on fresh and coastal water quality, freshwater quantity, freshwater and coastal marine habitat and natural character and amenity values associated with freshwater. For freshwater, terrestrial and marine environments, the MRPS included a method stating that areas of significant habitat would be· identified within the resource management plans and that rules would be included to protect those habitats and the conservation values of those habitats (Methods ·5.1.12(a), 5.3.12(a) and 6.1.4(a)). However, the only areas that were subsequently identified in the resource management plans were in the coastal marine are<il.

Both the MSRMP and WARMP have various objectives and policies relating to biodiversity, natural areas and values. These are addressed in Volume One of each plan within chapters on 'Freshwater', 'Rural Environments', 'Natural Character', 'Coastal Marine' and 'Land Disturbance' and a specific chapter on 'Indigenous Flora and Fauna and their Habitats'. The main emphasis was on protection of areas·of significant vegetation and habitats and of freshwater and riparian ecosystems.

Various provisions in Volume Two (Rules) of the plans relate to the protection and managernent ,of indigenous biodiversity. This Includes assessment criteria to be considered for resource consent

27 .

648


While the survey work on private land has largely been completed and some could argue that these sites could be idEmtified in the MEP, the Council sees no reason to change its stance. Rules in themselves do not bring about change and will not improve the overall condition of significant natural areas; the Council considers that this can only occur by working with landowners. For this reason a strong landowner assistance programme has been developed and··maintained as part of the overall project. This has extended to the development of guidelines to assist landowners, a se.ed collection project to supply suitable, locally-sourced native plants for restoration projects in Marlborough, suppo1t for community grobps' and encouraging plantings of native species in south Marlborough to provide habitat for the native tor.

The Council has signalled through Policy 8.2.8 of the MEP that ongoing monitoring of the condition of sites with significant indigenous biodiversity value will be necessary to determine if the methods in the MEP are helping to improve the overall condition of significant indigenous biodiversity in Marlborough. Where state of the environment monitoring shows a loss of or deterioration in the condition of significant sites as a result of the voluntary approach to protection, the Council will review this approach to determine whether increased use of regulaH(?n should be pursued. For the time being however, the Council does not consider there 1s a need to identify within the MEP the significant sites that have been identified through the significant natural areas project.

3. Greater regulation for areas with significant biodiversity value Greater regulation for areas with significant biodiversity value would see more controls than have been proposed in the MEP. This option would include in part the mapping option described in Option 2 above. Greater regulation could see a requirement for resource consent for any activity that would involve either the clearance of indigenous vegetation or an activity within an identified significant site.

However, for the coastal marine area, most activities that invo\ve disturbance, occupation or reclamaUon of the1seabed already require a resource consent. This is in recognition that the coastal marine area is comprised of public resources and there are no inherent rights to be able to develop these coastal resources. The only activities that have been permitted in the coastal marine area are those that are minor in nature and in some cases, temporary. There are more permitted activities provided for within the Port, Port Landing Area and Marina Zones; however, these areas have already b~en substa~tiaU':{ modified at:d there a,e \lm\ted \t\d\~e~C)l,,lS b\od\\Sets\~ ~a\ues at these \oca\\ons t\"\ari other areas m the coastal marine area. Therefore, within the coastal manne area the extent of greater regulation would be limited to: ·

• including more prohibited activity rules for activities in the ecologically significant marine sites; or

" requiring a resource consent for all activities within the ecologically significant marine sites.

Before either of these approaches were contemplated, the Council would need more information on the state and extent of the ecologically significant marine sites. Until this occurs and appropriate consultation on the possible tJutcomes of additional regulation are undertaken, the Counc!I considers the level of regulation for the coastal marine is appropriate.

& • •

For areas that have been mapped and identified as significant wetland, permitted activity rules in the MEP have been applied. As within ·the coastal marine area, greater regulation could potentially see a discretionary activity rule status applying to .activities within these mapped sites or including more prohibited activity rules for activities within significant wetlands. Some may consider that this would be justified, given the extensive loss of wetlands that has occurred in Marlbo~ough. However, most of the wetlands that have been identified as significant are on private land and the Council's approach to protecting indigenous biodiversity on private land to date has been to. work with landowners in a partnership. The most significant benefit of identifying the significant wetlands on the planning maps is for landowners to l<now exactly where the boundaries of the wetlands lie. The RMA's definition of a wetland is very broad and landowners are concerned that this may extend to boggy patches in paddocl<s, areas that do not support any wetland values. Through the use of consistently applied criteria to identification, the Council has been able to determine exactly which areas are wetlands in need of protection and which areas do not support wetland values. This includes some regulation through permitted activity rules and standards, but opportunities for protection also exist through the Council's landowner assistance programme. The Council considers that until some monitoring of the

29 Ii. •

649

BEFORE THE ENVIRONMENT COURT AUCKLAND REGISTERV

UNDER

IN THE MATTER

BETWEEN

AND

IN THE MATTER

AND

the Resource Management Act 1991 (the Act)

appeals against the Proposed Bay of Plenty Regional Coastal Environment

Trustees of the Motiti Rohe Moana Trust

Appellant

Bay of Plenty Regional Council

Respondent

of a declaration under Part 12 of the Act

Bay of Plenty Regional Council

AFFIDAVIT OF EVIDENCE OF GRAEME JAMES 1.AWRENCE

In respect to the Application for Strike Out & Declaration

Dated 16 August 2016

Lawrence Cross Chapman & Co Ltd Envir.onmental Planners

Graeme Lawrence

Director

PO Box 533 Thames/ Tel +64 27 248 0226/ [email protected]

650

l

)

11 Grae'!'e James Lawrence ofThames, Planning Consultant, swear:

Introduction

1. · My name is Graeme James Lawrence. I ani a Pifettor of Lawre{lce t;:ross Ch~proan & Company

Limited, a Tl-!am·es-~a!ied company specialisil')g in providing environmental pianrOnt and resource

management servk~s to public agencies, community groups (indudiog iwi and hapil) and private

clients, in the £oromandel, ·Thames V~lley, Waikato; Say of Plenty an.d Autk!and Regi,;;ns.

2. . For ne·arly 41> yeiilr~ I have ac_h1ised or represented public and private c:lients in respeEt of dittri_ct and

regional plan preparatron, polity deVelopJilel'lt a.11d pl~il changes a11q variatibns. in particulitr, I have

been involved in the preparati(fi'I ~nd ovel'~ight of three gene,atil>ns of district plans for the Thames

Coromandel District Co11ncil (''tCDC"} and m·aniiged ttte prep~ratif:)n· and h~al'ings foF the Counctil's

first Proposed Distrh:t Plan under the Resource Management Act 1991 ("RMA'').

3. In my c;ipacity ilS a private consultant I have provided plannin1 ad,i~e and support to several Maori

entitles within Bay of Plenty; Waikato, Auc:kland and Northland re1ions. -I have provided planning

advice and assistance to the Motiti Rohe l\lloana Trust i!IPPl!llant and applicant for declaration subject

of these proceedings and to the Environment Court in.respect to the Ptoposed Motiti Environmental

Management Plan (now operative) and the Proposed Bay of Plenty Regional Policy Statement (now

operative).

4. . in pr~paring this affidavit I have reviewed the strike out appliti!llion lodJed by the llay of Plenty

Regional Coum:il (C::ouncil) and the two $Yppotting affidavit$ prepared by JoarinE:_ Noble. I have also

reviewed the affidavit of Kimber1ey Maxwell and the draft affidavit l>y Nepia Ranapia • This affidavit

responds to relevant planning matters ri!ised by the .strike out appli~atitm and the application for

declarations lodged by the Tru~tees of the Motiti Rohe Trust (MRMT) on 12 August 2016.

5. I confirm that in preparing this affidavit I have read, and complied with the Code of Conc!uct for

Expert Witnesses in the Environment Court.

6. I have reviewed the submission lodged by MRMT o" the Prpposed Bay of Plenty Regional Coastal I

Environlf!ent Plan(proposed RECP} and notice of appeal, including relief sought by MRMT, including

amended relief filed ·by MRMT on 23 November 2015 and 1 July 2016).

Ms Noble has annexed the relevant documents to her first affidavit.

Affidavit of Graeme James Lawrence for Motiti Rohe rvloana Trust Final

651

MRMT Submissions apd Appeal

7. The MRMT S11bl.l1i~sians ,ind ~.PP.e,!l ~r':e ioch,1ded in Ms Nobles Annexures. I refer to each in sequence

showing that the relief sought has been consistent throughout the process. When considered aga,n!jt

the fol.I fext of eaeh dotiiment tne overall a-pi>'rOath has been to narrow and refine the relief sought.

The key su!lmi~siori and appeal points seeking changes to the proposed RCEP are:

a. As a starting point, I nQte that I djd not provicle any plaiming advice to MRMT jn relation to

pre.paration of its submission on the proposed RfEP. However, the relief sought, as

described below, is wide-ranging. In my experience, wide-ranging primary submissions will

Qft(;!n 11ttract fu-rther submissions (either in SL!PPbrt or opposition) betause other parties

appreci~te that subst11ntial changes can be introduted where grounds are widely stated. I

therefore disagree with Ms Noble's opinion that the public generally could not have

anti.tipated the breadth of cha'1iBS proposed to introduce Ma<1ri and cultural marine

prot~c;tton tool~ th·at fall y.,ithin the exercise of kaitiakitania and the meaning of

m~ta1,1rang;a Maori suth as raliul.

b. M"MT submission (Annexure A) lodged by the Tr-list whose tr1,1ste·es are tcaumatua of

Motiti. The submission contains a map1 showii,1 the rohe or area that the Tru·st had

particular interest. It also listed coastal islets and reefs within this rohe tbat are taonga •

The submission made clear the Trust was sp,aldn1 for ahi ka on Motiti Island and all who \

whakapapa. to Motiti and the surrQun•ctin_g island and .reefs. In do_ing s_o they were calling on

the Council to engage with th,m as k.-itiaki and in accordance with the principles of Te

Tiriti o Waiti,lngi •

The submission was in three parts. Th·e first part sought relief through eng~gement in the

appropriate mi,lhner as .set.out in the NZCPS at Objective 3 and Policy 2 in particular to

engage with ahi k\'l:a thro1,1gh the TrustJ enabljn~ the Trust to exercise kaitiakitanga and to

apply in;1tauranga Maori.

The second pa'rt si~nalled the need for amendments so that these m·atterS'Cot,dd be

appropriately and fully consii;lered, Seyeralthemes ;.ind issues were -advanced for the

Council to address.

1 It was one submitted to the Environment Court and refined as'a result of decisions on the Proposed Regional Policy Statement Variation #1 on Natural Character ' ·

Affidavit of Graeme James Lawrence for Motiti Rohe Moana Trust Final

652 .

One of these was matauranga Maori. The Trust supported statements in the Plan that

mataur-anga MaQri would be includetl in integrated management and specifically stated

that spedfic provisions were required to do so. The following two matters of specific relief

intera/ia were sought2:

• ni~til'!!:! spatiiil plan for the rotie

• app,lkati(in of lll.c!T!~, m~uri and tapu to the a.ssessment of nafural llharacter in

particular tile island reefs and waters of the ro!,e.

Methods were sought to athieve integrati:ld marine rilc!il~gement thniugh integrated

management of ftsh¢ries resouttes. This was ilQl a submission ditec:ted at fishing or

fi!,hl!ries but at activities ,hat wouh;:I have adverse effects on ecology and indigenous

biodi,versity - marine flora and fauna.

In this respect it was consistent Witl'i the approach tt,at the Marlborough Co1,1ndl was

proJ)osirig to tli!ke. J return to this later.

At the time of the submissicm (21 Aug11st 2014) the reef system Te Tau o Taiti· or Otaiti was

closed to fishii>J ·dufing the salvllle an.d clean up of the MV Rena. The submission sought

an apprdpriat, RMA response to protect the biodiversity arid prc,vide for the long term

recovery and restoratio~ of the indigenous ecos~ti!m once the temporary closure was

removed.

The third part provi!led more specific relief:

• objective~ poli,;ies and methods to sa{J!1uarcl int~, olio the biological inteirity

and diversity of indigenous coastal flora and fauna3

• "reframe issues, objectives and polkies to provide for protection of b.iodiversity

and nat1:1ral heritage as a focus for achieving appropriate fisheries ma11agement."4

• .l ' .

• in the coastal marine area adcf fJbjettiv~s and policies to· provide for marine sp;1t-ial

planning over the Motiti Rolle Moana.5

c. MRMT"s further submission (Annexure B) was lodgecf in the knowledge of the recent

Environment Court µ~cision 6 on the Regional Policy Stat-ement. In its further submission

the Trust made clear at th~ outset it was seeking {'recognition and active protection of the

2 See item 2·pp 3 & 4 of the MRMT Submission 3 Referring.to NZCPS Objei:tives 1 and 3 • See MRMT Submission Item C. 3 c. 5 See MRMT Submission Item C. 4 a. '(2014] NZEnvc 239


653

marine environment of the Motiti Rahemoana and effective recognition of Maori cultural

values."

d. MRMT's ;10rigin<Jt-ing'1 Notice of Appeal (Annexure C) challenged the C::ou_ncil's rejection of

marine spatial plannin'g being souiht wh!m a succEis'sful stiirt hacl be1m ma~e with the

introdutition of the Motiti Natural Envjromti~ilt area into the Regional Policy Statement.

The si-ie and scope Qf the sp~tial area which the Tr!,ist was see!<irtg in the proposed RCEP

was es.sentially the same as that beirfg incorporated into the proposed RP.S Variation 1 on

Natural Chara£ter7• This can be seen When ~otriP-ai'iog the plan attached to the su~mission

. on the proposed RCEP (Noble Ajmexure C) With RPS Map 21a (Exhibit GJL-1).

The spatial plan required additional values applying to the Motiti Natural Environment

Arei! to w1den its scope beyond the narrower focus of the llPS Vari~lion • to a~dress

customary, cultural and biodiversity effecls, intorporate issues, objectives and policies to

cover cultur;il values, and to incorporate regulatory and other methods to manage adverse

effects on the multllayered values cc,ritained within the Motiti Natural Environment Area.

The relief sou_ght was to introduce O~jectives, Policies and Methods sought in the

submi$!1ii>n. The subm.ission was speEific: The objectiv.eJ polities and methpds were

required to protect biodiversity and n;atural heritage, to safe1uard bjological integrity and

biological divel'$ity of marine flora and fauna; they were specific to th·e Motiti Rohemoana

or Motiti Natural Environment Area a$ it had ~,come identified through the proposed RPS

Variation #1 and it was to apply mataur~mga l\llaori and address effects on mana, mauri

andtapu.

e. The first am~nded notice of appeal (Armexure E) further clarified and narrowed

the relief being sought to focus on provision of a spatial plari ineorporati.ng the

following:

• marine spatial plan for Mbtiti Rohemoana

• mataurariga Maori

• Maori attributes of mana, mauri and tapu to the assessment of natural

character in particular island reefs and waters of Motiti rohe moana and

whenua

7 see Regional Policy Statement Map 21~ of35 1 With its focus on implementin,g NZCPS _policy 13

654

Affidavit of Graeme James Lawrence for Motiti Rohe Moana Trust Final \

• integrated methodologies for the marine environment similar to use of

sttuct~re pla'n, sp;itial plan, or integFated whole of catchment

ntan~gement applied on lanct, by addjng issues, objectives, policies and

methods th·at implement Objectives 1 and 3 of the NZCP.S.

• objectives and polides to ptovide for marin·e spc1tial pf.inning over the

Motiti Rohe moana.

f. The second amended relief (Annexure F} took the step of writing the detailed

wording and identifying the manner in which it would be incorpc;,rated into the

plan, adopting the apptoaEh fhat fitted tt\e architec;ture of the Plan. The detailed

wording wa~ provided as part of an agreement reached during mei;Uation with

Council.

The provisions were taken from the rationale and reasons given for the relief

soug'1t and applied in a manl'!er that would inco~porate four key ele~ents':

• establish the relationihip of ahi kaa of Motiti, k-umatua, kaitiaki and

thos~ who whakapapa to Motiti Rohemoana with their rohe.

• the cus~omary and ·cultural herita1e values attaching to the Motiti Rohe

moanii incc,rporatin1 matauranga Maori.

• the restoration of and protection of indiaenous biodiversity of marine flora

and fauna within an identifiecf management ;Jrea at risk from activities

that wo.uld cre;;1te adverse effe_cts on the cultural and natural values of the

range of indigenous biodivers•ty and habitat health and resilience required

for taopga species.

• upd_a~e to schedule 6 Areas of Significant Cultural Va.lues (ASCVs) to

identify the values that need to be taken into ac,ount for activities in the

Motiti Rohemo.ana and to establish a basis for furt~er development of the

spatial plan for Motiti Rohemo·ana Management Area by way of future

Plan Change or Variation

8. As .noted, the relief set out in the originadng appeal Was in my experience broad in

scope. The explanation-and reasoning set out.for each point stated or clarified

what was sought. The'submission and or1ginating appeal when taken as a whole.,

'Applying NZCPS Objectives 1 and a and Policies 1 (f) and (g); 2 (c) and (e); 11; 13, 14 and 15


655

was outcome directed. This is not an unreasonable approach to ti:lke when making

submi$sipns or an appecJI where final authorship is best left to the Plan author so

that architecture, style and synt-..x is consistent-the "tell me what you want and

leave me to write it up1' approach.

9. Recognition and active protettion of indigenous bi9diversity within the Motiti

Natural Environment Area established through the RPS variation protess applying

matauranga Maori to achieve customary and cultural heritage values was a clear

outeome being sc;,ught. As noted, reli~nce was placed on giving effect to the NZCPS

including Objeetive 3 and Policy 2. lli>tf'i of thl!se provisions refer to brol,ld

principles such as recognition of the exercise of kaitiakitariga and protectjon of

taonga in a manner that reflects tikanga and local knowledge sy.stems

(matauranga Maori).

10. Parties interested in the Motiti Natural Environment Area attached to the original

submission would alsc- be alerted to the Trust's Appeal expressing its wish to:

a. be involv,d in decision making (tino ran1atira tan1a)

b. exercise their role as k~itiaki in formul.-ting rules and actively en1a1e in

developing rules and mana1in1 activities

c. biodiversity protected and fisheries manaaed

d. actively protect the marine envi;onment of the Motiti Rohtemoana

e. provide effective recognition of M;iori cultural values including taonga

11. The narrowing of the appeal to provide a e::ultur-ally appropriate method of

protection over part of the Motitt ~at.1nal Environment for tile purposes set out in

the documents would then be a matter for consideration of the parties who had '

already shown interest.

12. I do not agree with rvis Noble's contention that the reliefsought was "vaguely

implicit" or not part of the "originai submissions"~0 for the following reasons:

a. The refined relief focused on:

10 Noble Affidavl para 19 p5

• A defined area, one that had already been accepted and incorporated

into the RPS as Motiti Natural Environment area


656

• Significant cultural values for the ahi kaa of Motiti Island and

Rohemo,ma

• Provi(iilig detail, statements and descriptiQns to more af!propriately

take aCtbui'.lt of tc:1i'fgijt~ whenua vahJes a·nd· exercise of kaitiakitanga in

the assessment of applic~tions tliat may be made. This ,s a more

transparent appr'Qach prc;,vidih~ first order consi~eNi'tiotis that will

apply when IViaori values-assessments-are sought by. l,lpplic~nts from

tangata whenua representatives.

• APPlvililf niataur~:m-.~ Maori throu,h use of terms and applying them

_within the ~pprqpriate spatial context, that is to say, withJn the rol're

wltere the issi,ies objectives and policies and metl-iods emb·odied, in

mote general terms, elsewhere. in the proposed RCEP arid RPS, wo"'ld

find their appr~priitte cultural expression.

13. References in Ms Noble's affidavit to provisions conta•ined elsewhere in the plan or

in other legislation beis the question oi how, liven multiple overl;.ys are applied

to the l\llotiti Nat1,1ral En':'ironment Area, the siinificant Mao;i values, exercise of

kaitiakitanga and application of mataur-,nia Maori' in acEordance with tikanga will

be applied to ac;hieve the purpose of the AMA in any particular case.

14. Of particular relevance, the Motiti Natural Envi~onment Area contains all the

overlays employed in the proposed R(EP. The refined notice of appeal directly

addresses t'1!$ by introducJion Qf a spatial plan and consequential amendments

acknowledging and referring to them.

15. It is nc;,t uncommon for other· legislation, regulatio~ or bylaws to provide methods

to at:;hieve particular objec;:tives. Forests Act l949 and Reserves Ad 1977 are cases

in point. MRMT is aware of and fully engagt1d in other processes and procedures

to a¢hieve this. Ttie MRl\,'IT appeal seeks sp~dfic provisions to be embedded i~ the

propped RCEP to achieve the purp-ose of the R"MA, and give effect to the NZCPS

and RPS.


657

16, The MRMT subrnis~icin and appeal consistently so1;1ght a marine sp~tial plan - in

essenc~ it now seeks "-additions" to -a spatial pJam one that had its gest~Jion in RPS

vadaJion #1 arid had overlays conceived and applied in the proposed R('.EP.

17. Ng~t, Makino also nfade subhfissfohs ~ee!d:i1g-a sp~ti~J plan for an are~ id!mtifi!:!d

as an ASCV ih4=prp,irating policie~ and rules to manage effects on ah area of

significant cultural value.

Marloorough Pro.posed Unitllry Plan 2016 &-Management of Fishing Activities

18. The recently notified Marlborough Proposed Enviro·nmental Plan (Unitary Plan)

June 2016 (proposed MEP) addresses the issue of Indigenous Biodiversity in

marine environments in a similar l'iliilril'ier as MR!ViT has. The difference is that

MRM1' is·seekinj culturally apprppriate expression of that within its rohe.

19. . Whefl id,ntifyinJ the issue of indiJ~nous biodiversity in marine env1ronmehts the

projfosed MEP11 provides a suite of. provisio·ns that address the effects of fishing

activities.

The fo11owing are extracts:

Issue

"Long term or cumul,;,ti11e smaller scale /otalized i!ffe.#s fr-om imparts su(h ~s

·contamination 1md ph_ysital distt,irban~e (.Qi1 also have signifkant eff~tts cm the

funEfion_ipg t,fmarine systems. Many artMtiesl such as rec;eaticmal swiminingl do

noth.itlle a/feet or !ta1te an impart 011 mririne bip,Jiversity; however. Other

0 t,ctiviti,s1 including shipping (especialiy ldige qnd/or fast ships)> ;e,lqmations or

oth~r coastal sUutturi?s1 marine farming arid phys1ca/ disturbance from certain

fishing techniques can affect marine b1odiiletsity/'

Objective

"Objedive 8.1. Mqrfborough's remaining indigenous biodiversity is te,:restriat

freshwater and coastal environments is proteded. ,:,

11 Marlborough Proposed Environmental Plan (Unitary Plan) Vol One June 2016 Chapter 8 Indigenous Biodiversity


658

C

Policies

"Policy 8.3.7 - Within an ifientified ecologically significant marine site fishing activities using tetrhniques that.disturb the seabed mu'st be avoided.

Some fjshing activitit;s use techniques th.at result in distur-bnnce of the seabed.

Depending where this occurs; there is the potential for adverse effects on marine ·

biodiv1=rsity. The policy seeks to specificol/y avoid the wse of these techniques to

ensure areas iden-f:ijied as having significant bio(jiversi~y val1:1e in the coastal marine

area ore protected. this will help to give effect t~ Policy 11 of t:he NZCPS.

Methods of hnplement;Jtion

s.M.1 Regipnal Rules

fishing activities usi~g techniques or-methods that disturb the seabed in the areas

identified as an eco/<Jgicolly significant marine-site will be prohibited. Resource

cohsent is required for most uses or activities within the coast;;;J marine area and an

assessment of the effects of the activity on indigenous biodiversity will be

undertaken, including whether there ore any sigl}ificant biodiversity values.

20. Ttie RMA s 32 analysis ,;,f the poUc.y seekin1 avoidance of fishing activities using

techniques that Will distu·rb seabed in identified marine sites includes th,

following considerations:

• The cultural .-nd environmental benefjts of a prohibited activity r1,1le

•· Opportunity cost for harvesti'ng species in discrete lotations12

• Little overiap between fishing effort and ecologically signific;ant marine

sites.13

• EffJe::i~ncy-of providing whole of community benefit iri prot~ction of known

sites and this benefiUs greater than cost to individual fishers.

• Effetltive in achieving prote1,tion; will assist in achieving enhancement and

restoration.

Extratts from the M_EP s 32 Report -are atlijched as Exhibit GJL-2,

21. · The proposed spatial plan provisions are not inconsistent with practices being

considered elsewhere in NZ.

12The balance Motiti N?tural Environment Area Manai:ement area outside the Rahui area not affected by the prohibited activity status 13 The case when Otaiti fishing closure was in place and the enhanced biodiversity and ecology restoration self-evident.


,,

659

\

· The role and function of Regional Councils is to establish, implement ,Jnd review

objectives, po1icies and methods for maintaining indigenous bio.diversity.14 The

NZCPS {2010} directs protection of indigenous biodiversity 15 and takihg into

account the principles of te Tiriti o Waitangi ;md kaitiak1tc1nga in r~lation to the

coastal environnient16• These will be considered further as l_egal iss~es.

· 22. the term "rahui" has been addressed ih expert term$ by Ms Maxwtll and in

accordance With tikanga by Mr Ranapia. the term has been ~sed in the context of

tlie spatial plan for, Motiti Natural Environment Area: Q .

a. to apply to a dis(rete area in!:ludini and'1urrounding Otaiti, the site

containing the remains of MV Rena and its ·c-argo. .

b. to establish a high level of Ions ·term protectjon from human activity

c. to take into accou1;1t the spMtual and cultural value:s of the site

d. recognii_ing the remains of MV "ena aJ1d its c·arto·have been tak-en into

account when assessine natural diatader of the area.

23. "Rahui• is a t-erm I have used as a practir:inJ planner for my entire professional life

over 40 years. As a planner I have used it and have observed others apply "rahui"

to achieve '(protection'' of a place or objed of value which has qualities requiring

protection or preservation that go beyond an evinyday euro~entric view of the

qualiti~s present; More commonly it is applied to wh11m the qualities or attributes

present ate uniquely New Zealand ones - where q1,1aiities, attributes,

circumstances or events which require preservation or protecticm, conservation or

reservation status, warrant ~ uniquely NZ identifier17•

An exainpJe of long term use in planning is the Nga Whenua Rahui fund

administered by the Department of Conseivati.on and estaQlished to provide

funding to M,Jori landowners 11to protect the natural integrity of Maori land and

preserve matauranga Maori"18• Nga Whenua Rahui Fund sits alongside the Queen

1( Section 30(1)(ga) RMA

15 NZCPS Policy 11 16 NZCPS Policy 2

11 DOC description of the fund

Affidavit of Graeme James Lawrence for Motlti Rohe Moana Trust Final

660

Elizabeth II National Trust that helps private land owners "permanently protect

special natu'r;il and cult1,.1ral features on their land with open space covenahts"19•

24. Most importantly "rahui" ~:i<pr~~ses natt,tral and cultural values, corite,q (spate

and time); protedion presehiatipn, duration, and p_rot6cols for apj1lyjng and

ren,oval. Its aP.Piitatjon in this ease has been d"E!termined having regard to

ma!aurang;1 Maori, and to the kaup~pa and tj~ariga of the ahi kaa of l\11otiti and to

give bicultural m!?aning tb t-he form and p1,1rpos~ of profection required within an

RMA Plan context.

25 Other planning methods-that sit alongside and be consider.ed in a similar context 0 .

would be "prQhibit~d status'', '1avaidance ", '1prote~ive covenant" '1conservation

or-der", "reserve". In the case of the identified Otiliti Ptqtectil;,o Ar.ea, the term

Rahui is most apt to provicfe a framework tor a prohibited act!Vity in a coastal plan

prepared under th~ RMA, to build on·tbe spatia! plan introduced in operative RPS,

to athiev, the directions of the f4ZCPS as to matauranaa Mac,ri, taonga,

kaitiakitaliga and protectioh and enhancement of indiienous biodiversity.

))e<,,~t SwQrn at llurk!o..:.P this fL"-day of August 2016

Before me:

ASolici

Exliibits

Regional Poliey Statement Map 21 a

Alan Jones Solicitor Auckland

Extract froi:n the Marlborougn Proposed Environmental Plan Section 32 Report

,.. QEII Natioa Trust.description of its purpose

Affidavit of Graeme James Lawrence for Motiti Rohe Moana Trust Pina·J

GJ~-1

GJL-2

661

BEFORE THE ENVIRONMENT COURT AT .AUCKLAND

IN THE MATTER: of the Resource Management Act 1991

AND

IN THE MATTER: of appeals pursuant to clause 14 of the First Schedule to the Act

BETWEEN ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC

(ENV-2015-AKL-000129)

Appellant

AND BAY OF PLENTY REGIONAL COUNCIL

Respondent

AND VARIOUS Section 27 4 Parties

REBUTTAL EVIDENCE OF GRAEME JAMES LAWRENCE

'v -~ Il

Tu Pono Legal Limited Barristers and Solicitors

1222 Eruera Street P.O. Box 1693 ROTORUA 3040

Ph: 07 348 0034 Fax: 07 346 2933 DXJP30025

Instructing Counsel: Barrister Robert Enright Level 1, Northern Steamship Building 122 Quay Street Britomart Auckland CBD [email protected]

.662

663

j

2

1. INTRODUCTION

1.1. My name is Graeme James Lawrence. I hold a Bachelor of Social Sciences

and I am a member of the New Zealand Planning Institute. I am a Director of

Lawrence Cross Chapman & Co Ltd a Thames based company that

specializes in providing environmental planning and resource management

services to public and private clients in the upper North Island.

1.2. I have been a planner working in environmental planning either

professionally or in management for 40 years. Prior to setting up my own

practice in Planning in 1998 I was engaged _by the Thames Coromandel

District Council as the Manager of Environmental Planning Services

responsible for the-Council's policy development, regulatory and monitoring

functions. I was a planner providing district and regional planning services in

the Waikato and Thames Valley before that. I have been an Honorary

Lecturer in Geography at the University of Waikato until recently and I am a

Director of the Environmental Defence Society Incorporated.

1.3 I have been engaged in providing planning advice to various M~ori entities

now since the early 1970's, contributed to iwi management planning

exercises and commissioned and supervised studies into investigations of

various Maori land development issues. Recently I have provided planning

evidence to the Environment Court and High Court in the Kawhia Harbour

suite of cases and for Te Runanga o Ngai Te Rangi lwi Trust (TRONIT) and

contributing hapu and Tauranga Moana lwi Customary Fisheries Trust in

respect to the Port of Tauranga Harbour Dredging case and for the former in

respect to the Blakely Pacific Matakana Island subdivision case. I am

currently involved in cases involving preparation of the first District Plan for

Motiti Island and variation to the Bay of Plenty Regional Policy Statement

and Proposed Regional Coastal Plan to give effect to the New Zealand

Coastal Policy Statement 2010.

1.4 In preparing this evidence I have considered the evidence in chief prepared

by the other planners in this case as well as ecological evidence produced

for Forest & Bird and the company evidence produced for Powerco. I was

involved in a workshop and mediation on the topic of Natural Heritage.

664

3

1.5 I confirm that I have read the Code of Conduct for expert witnesses

contained in the Court's Practice Note 2014 and that I agree to comply with

the Code. I also confirm that I have not omitted to consider material facts

known to me that might alter or detract from the opinions expressed in my

evidence.

1.6 My rebuttal evidence focusses on three main issues and is structured in this

way:

665

a. regionally significant infrastructure is required to service existing and

future subdivision use and development. The provisions of

infrastructure are part and parcel of subdivision use and

development. It is an inseparable component of subdivision, use and

development. Within the coastal environment (whether on land or

within the coastal marine area) the consideration of where

development is to be located must take into account the options and

alternatives for provision of the necessary infrastructure. Together the

impact they make on natural heritage resources must be considered

so that subdivision use and development does not take place where

infrastructure is likely to create adverse effects on natural heritage.

b. the policies on natural heritage have an obligation to give effect to

NZCPS ·and RPS. To do this the policies must ensure that adverse

effects on outstanding biological resources and areas of outstanding

natural · character, outstanding landscape and natural features are

avoided.

c. Maori cultural values and the relationship of tangata whenua with

their ancestral lands, coastal environment, taonga and resources are

an inherent component of natural heritage. There is a cultural

dimension to natural heritage and this overlap needs to be addressed,

not compartmentalized into other sections of the proposed coastal

plan. This needs to be recognized and provided for to protect natural

heritage from adverse effects.

1. 7 As a result of my review of the evidence and background reports and

documents I have reached conclusions that may differ to some of those

4

reached by the Planners who prepared an agreed statement of issues and

approach to the proposed Natural Heritage provisions. I was not involved in

those discussions. I agree that the issues identified by Forest and Bird as

outstanding remain unresolved.

1.8 I have prepared this rebuttal evidence on behalf of Ngati Makino Heritage

Trust (NMHT) who are appellants in respect to the Natural Heritage Topic

(and other topics) and are a s274 party to the Forest and Bird appeal.

1.9 My rebuttal relies in part on the evidence in chief produced by Ms Natasha

Sitarz; and I rely upon the cultural evidence being called by NMHT.

666

1.10 I have not attempted to identify where I reach agreement with evidence in

chief of the other planners nor have I tried to challenge all matters which I

disagree with as I consider regionally significant infrastructure does not

warrant being separated out from and dealt separately from the consideration

of subdivision use and development.

1.11 I differentiate between regionally significant infrastructure and National Grid

and in doing so agree that NPS ET provisions would seem to provide for

operation, maintenance and minor upgrading to the National Grid. This does

not apply to other infrastructure. Major new development whether of the

National Grid or regionally significant infrastructure is I consider a matter that

is subject to the higher order policies of the NZPS and RPS and these must

be given effect to .by policies in the Proposed Regional Coastal Environment

Plan (PRCEP).

2. SCOPE OF REBUTAL

2.1. This evidence is in three parts:

a. expresses concerns that policy in the coastal environment plan

proposes to separate regionally significant infrastructure from being

subject to the same considerations as subdivision use and

development;

b. raises relevant policies in the NZCPS and RPS;

5

c. identifies considerations not addressed by the evidence in chief in

respect to the value of natural heritage in terms of Maori cultural

values and the welfare and wellbeing of tangata whenua.

3. BROAD CONSIDERATIONS & RATIONALE

3.1. It is critical that existing and future urban growth takes account of the

impact it will have on natural values and that subdivision, use and

development is carried out in a manner that will avoid adverse effects

on the more highly sensitive natural environments subject to protection

under NZCPS policies; identified for protection in t~e RPS and subject

of Policy NH 4 in the PRCEP. These are:

a. Outstanding Natural Character areas (identified in Appendix I

(maps) and described in Appendix J to the RPS)

b. Outstanding Natural Features and Landscapes (identified in

Schedule 3 PRCEP)

I

c. Indigenous Biodiversity Area A (identified in Schedule 2 and

Table 1) an on taxa listed in Policy 11 (a) (i) or (ii) of the NZCPS

As noted by Piatarihi Bennett, this includes sites with significant cultural

and natural heritage values, whether recorded or not. These often

overlap. Undeveloped land (such as sand dunes) may include cultural

sites in the coastal environment as well as habitat for taonga species.

3.2 I agree with Ms Noble when she starts with the premise it is necessary

to consider the current and future infrastructure needs of the region and

the role of infrastructure in enabling economy, wellbeing, resilience and

safety.

3.3 It is also important to look at the way in which infrastructure has

developed in the region. Historically it has tended to follow the

development. The extent to which infrastructure has been

accommodated in the coastal environment on land and within the

coastal marine area, the extent to which it has contributed to

modification of natural character and impacted on the natural heritage

resources of the harbour and ocean coast margins and impacted on the

667

6

relationship Maori have with natural heritage resources was well

recorded in submissions made to the Environment Court in the Port Of

Tauranga dredging case. 1 In that case I described the further works

required by the Port as having reached a tipping point. The Court in its

decision accepted that there was a need for remediation or offset of

effects.

3.4 There is a limit to the extent that infrastructure can remove, impact on

or adversely affect natural heritage values. Policy needs to be in place

to ensure the more highly sensitive natural environments so that areas

of most natural heritage value are retained for future generations.

3.5 The approach outlined in the planner's agreed statement and further

advanced by those planners in their evidence in chief has taken the

view that no matter how sensitive or highly valued remaining natural

heritage resources, policy will provide the opportunity for resource

consents to be considered for infrastructure that would have adverse

effects on a highly valued natural heritage area.

3.6 This does not take account of:

a. cumulative adverse effects that infrastructure of different types and

in different forms has had over a long period of time on natural values

of the coastal environment.

b. further degradation of natural values having regard to new

developments cited in evidence and infrastructure extensions,

upgrades or new routes required to service them.

c. the need for policy to provide for subdivision use and development

only where it can be accommodated with infrastructure extensions and

upgrades that avoi~ adverse effects on the more highly sensitive or

highly valued natural heritage.

d. restoration of degraded natural resources applies equally well to

regionally significant infrastructure as to other land uses.

1 John Koning Legal Counsel for Te Runanga O Ngai Te Rangi lwi Trust

668

7

3.7 The amendments being sought by Forest and Bird make it clear that

regionally significant infrastructure will not get policy recognition if it is

likely to have adverse effects on the more highly sensitive natural

environments, that is, the areas of significant biodiversity value,

outstanding natural character or outstanding natural features and

natural landscapes.

3.8 Because there are conflicting values, it is appropriate to include a

hierarchy of policies; this supports insertion of the words "subject to .... "

as proposed by Fo_rest and Bird for NH 1.

3.9 As Ms Noble correctly observes2 in respect to the amendments s_ought

by Forest and Bird to Policy NH 5(a) (i) and NH 11 together with the

changes sought to Rule SO 10, not being able to have regard to Policy

NH 5 and NH 11 will prevent regionally significant infrastructure from

gaining consent where adverse effects are likely to be more than minor.

The amendments sought by Forest and Bird may result in decline of

resource consents where activities including regionally significant

infrastructure are likely to create adverse effects on the more highly

sensitive natural heritage resources unless minor or less than minor.

3.10 The Forest & Bird amendments are necessary therefore to preserve

natural character and protect significant indigenous biodiversity and

outstanding natural features and outstanding natural landscapes. This

recognises the statutory imperatives in s6(e), 7(a) and 8 RMA.

3.11 I accept that regionally significant infrastructure provides significant

social cultural and economic benefits to the region3• That does not

provide a rationale or justification for not avoiding effects on highly

ranked natural resources.

3.12 As acknowledged by Ms Noble4 the policy framework proposed by

Forest & Bird effectively achieves the directives of the NZCPS and RPS

to avoid adverse effects on highly valued natural heritage.

2 Noble SOE para 18 3 Noble SOE para 17 4 Ibid para

669

4. NZCPS & BOP RPS

NZCPS

4.1 The NZPS imposes a duty to avoid adve~se effects on:

a. indigenous biodiversity5 that the PRCEP has identified as Indigenous Biodiversity Area A IBDA;

b. areas of outstanding natural character6•

I do not agree with the approach being taken where the

emphasis is placed on "inappropriate activities" and regionally

~ignificant infrastructure is separated out from and considered

as an "appropriate activity".

The infrastructure to enable subdivision, use and development

is an integral part of the development itself. Development

means growth and expansion. It incorporates expansion of

settlement, intensification of land uses and the infrastructure

required to service it. They must be considered together as an

integrated whole.

The directive of Policy 13 is to preserve natural character. That

cannot happen unless adverse effects on Outstanding Natural

Character are avoided.

c. outstanding natural features and natural landscapes (including seascapes).7

Have been mapped, described and given a protection status

where those ranked ONL&F are afforded protection from

adverse effects.

8

4.2 These are the protection obligations that must be met to give effect to

the NZCPS. When it comes to the point made by Ms Noble (and others)

about providing for growth and the importance of providing for

regionally significant infrastructure that point must be conside_red in the

5 NZCPS Policy ll(a) 6 NZCPS Policy 13 (1) (a) 7 NZCPS Policy 15 (a)

670

context of those obligations and of NZCPS Policy 6 (1)(b) which

requires consideration of "the rate at which built development and the

associated. public infrastructure should be enabled to provide for

reasonable foreseeable need of population growth without

compromising the other values of the coastal environment."[ emphasis

mine].

4.3 This puts the onus on the Plan provisions making sure coastal values

ranked as significant outstanding very high and high are not

compromised by the location, nature, character of growth and

development or demands from poorly located or conceived

development that results in infrastructure serving that development

having to compromise natural values.

4.4 Without the amendments proposed by Forest and Bird the policies as

proposed by the Council will open up a pathway of consent that will

encourage infrastructure solutions that further degrade natural

resources of high outstanding or significant value. A bottom line

approach_ is to be preferred.

4.5 The higher order instruments particularly NZCPS and RPS seek to

prevent that from happening. NZCPS Policy 6 goes on to directly

address activities in the coastal environment; it identifies methods or

techniques to provide protection from adverse effects to:

• avoid sensitive areas or providing controls (such as policies and

rules) to avoid visual impacts.8

The Forest and Bird amendments achieve that by closing off a

consent pathway for regionally significant infrastructure (if it is to be

separated out from consideration of other forms of use and

development) to have more than minor adverse effects on the

highly sensitive natural resources.

.. protect natural character, open space public access and amenity

values using setbacks from coastal marine area where practicable

and reasonable. 9

8 NZCPSPolicy 6(I)(h) 9 NZCPS Policy 6 (l)(i)

-671

9

The amendments proposed would ensure the appropriate level of

protection for areas of ONC.

,. buffer areas and sites of significant indigenous biological diversity

where appropriate.10

The Forest and Bird amendments would achieve this for the

biodiversity protected under PRCEP Policy NH 4.

10

4.6 · In respect to CMA, Policy 6 requires consideration of where and how

built development on land is arranged so that it does not compromise

activities of national or regional importance that have a functional need

to locate and operate in the coastal marine area.

4.7 This is not a policy that provides for regionally significant infrastructure

such as power and telecommunication cables, pipelines and roads to

be located in the coastal environment, but to ensure development is

managed so that infrastructure as port, boat ramps, jetties, aquaculture

and the like can take place without being compromised by other

developments to maintain and enhance public open space, recreational

- qualities and access ·

4.8 The evidence from the planners who prepared the agreed planners

statement seems to rely entirely on the importance of infrastructure for

growth and development and the value it has for the local economy.

There is little analysis of the degree to which the growth of Tauranga

must take into account the protection of natural heritage resources,

especially significant natural heritage, through avoidance (and not

remediation_ or mitigation) . Growth can and should be undertaken in a

manner that addresses and protects natural heritage. It is an important

part of the wellbeing of future generations.

4.9 Of interest nearly all the infrastructure cited by Ms Noble 11 has been

established under a planning mandate that did not require restoration or

offsetting of their effects on natural character. They are all cited in the

opening submissions by Ngai Te Rangi, referred to earlier as cases

10 NZCPS Policy 6 (1 )G) 11

Noble SOE para 26

672

11

where natural and cultural heritage has suffered by cumulative effects -

different works, associated developments and over time.

4.10 There would be examples now where infrastructure rerouting, .

reconfiguration, less intrusive methods for installation or alternative

technology would be a more sustainable option especially when new or

additional areas for development are being identified.

4.11 The extent to which any of the infrastructure identified in the evidence

before the Court may have restoration or rehabilitation conditions

imposed or reviewed has not been addressed or identified although

Policy 14 of the NZCPS promotes this.

4.12 Until the RCEP identifies in spatial terms and descriptions cases where

restoration, rehabilitation or offsetting is required, adverse effects of

subdivision use and developm·ent and associated infrastructure on

natural character will continue to erode natural heritage values. The

Forest and Bird amendments will ensure there is not further loss

through adverse effects on the attributes or elements that make up the

ranking of the highly valued natural heritage areas.

4.13 The maintenance and enhancement of natural values is central to the

relationship Maori have with their natural environment, their health and

wellbeing. The relationship of Maori with the land and water is

recognised and provided for in Section 6 (e), ?(a), and 8 RMA. The

values and the special relationship they have with the natural world is

inherent in the natural heritage values and for biodiversity, natural

character and landscapes and natural features. Their high value of

these areas is attributed to values that are inextricably Maori as well as

Pakeha.

4.14 NZCPS Objective 3 specifically directs taking into account:

• the principles of the Treaty,

• role of tangata whenua as kaitiaki

G involvement of tangata whenua in management of the coastal

environment.

673

12

by inter alia recognising and protecting characteristics of the coastal

environment that are of special value to tang·ata whenua.

4.15 Ngati Makino Heritage Trust consider the areas protected under NH 4

warrant protection not only because of their high sensitivity and value

but also because of the Maori values that are an inherent part of and

contributory to the high ranking for protection. This is addressed by Ms

Bennett in her evidence.

4.16 As noted by Ms Noble, the lwi Management Topic will address further

areas that may be added to NH 4 or need cross references to

protection policies afforded to Areas of Significant Cultural Value

(ASCV) in the lwi Management section.

4.17 Policy 2 NZCPS provides a suite of measures to ensure the Maori

values are taken into account when identifying areas which are to be

afforded the protection required to manage adverse effects. These

provide a· further reason to close off consent pathways for use or

development that would create more than minor effects on areas of

high value to iwi Maori or where their relationship with their land water

or taonga may be harmed.

4.18 The amendments sought by Forest and Bird are necessary to ensure

adverse effects from regionally significant infrastructure on natural

heritage resources of significance are avoided to ensure the Maori

values inherent in them are preserved and actively protected for future

generations

4.19 It is not appropriate to expect the iwi management section of the CEMP

to readdress the question of regionally significant infrastructure to

provide the protection necessary to avoid adverse effects on the

elements of value to Maori enshrined in or integral to the ranking of the

areas addressed in Policy NH4.

RPS

4.20- The Regional Policy Statement has a number of objectives and policies

relating to energy and infrastructure. Policy El 3B carries with it an

explanation to make clear that protection of infrastructure is focused on

674

13

ensuring development does not compromise nationally and regionally

significant infrastructure. It does not give infrastructure special status to

create adverse effects on the more highly sensitive natural heritage

subject of RPS Policy (and PRCEP NH 4).

a. Policy El 38 Protecting nationally and regionally significant

infrastructure is concerned with potentially incompatible

subdivision use or development that may affect the operation,

maintenance or upgrade of infrastructure. The policy seeks to

protect the ability to develop, maintain operate and upgrade

existing consent and designated nationally and regionally

significant infrastructure from incompatible subdivision use and

development.

The explanation to the policy expressly states that nationally

and regionally significant infrastructure is not absolved from

having to avoid effects on outstanding or significant natural

heritage when it states:

11Outstanding landscapes and significant environments are still

required to be sufficiently recognised and protected. "

The sufficiency test is whether it can meet directives of the NZCPS

(and RPS) to avoid adverse effects of hig_hly valued natural heritage

areas.

b. Managing the effects of regionally significant infrastructure on

.nationally significant infrastructure12 does not seem to be King

Salmon compliant when Policy El 58 stops just short of seeking

avoidance of adverse effects on significant or outstanding natural

heritage areas. The policy states:

11Give priority to ensuring development and/or upgrades to regional

significant infrastructure avoid adverse effects on natural and physical

resources identified in Policy . MN 1 B as matters of national

importance."

12 BOP RPS Policy El SB

675

14

I am not sure what "give priority _to ensuring development or upgrades

... .... avoid adverse effects" means.

It either means "we'll do our best" or means "we will go over the top".

suspect it means the former especially when considering the second part of

the policy.

This policy then goes on to provide for adverse effects that cannot be

practicably avoided to then be mitigated or remediated including making use

of offsets.

4.21 The matters of national importance that Policy El 58 seeks to do its best to

avoid effects on, are identified in Policy MN 1 B where they are listed. The list

includes:

a. Section 6 matters using criteria in Appendix F

b. protection from inappropriate subdivision use and development of

places identified in accordance with the criteria in Appendix F in

terms of natural character, outstanding natural features and

landscape and historic heritage

c. significant indigenous vegetation and habitats using criteria in

Appendix F

d. public access etc

e. relationship of Maori and their culture and traditions identified in

accordance with Appendix F and Policy IW 28 ·

f. customary activities.

4.22 Appendix F includes Maori values in each of the above set of values and

refers to Set 4 containing Maori Culture and Traditions criteria. The Maori

Culture and Traditions set includes the following criteria: Mauri, Waahi Tapu,

Historical, Customary resources, Customary ne~ds and Contemporary

Esteem.

4.23 lwi Resource Management Policy IW 28 requires recognition and provision

for:

676

15

a. traditional Maori uses and practices reating to natural and physical

resources

b. tanagata whenua as kaitiaki of the mauri of their resources

c. sites of cultural significance identified in iwi or hapu plans

This policy goes further and requires recognition that only tangata whenua

can identify and substantiate their relationship cultural and traditions with the

ancestral lands, water sites waahi tapu and other taonga

4.24 I therefore disagree with the Agreed Statement and planning evidence that

considers that the policies without the Forest and Bird amendment are

appropriate. Without the Forest and Bird amendments, they do not give effect

to the RPS because the policies would otherwise provide a consent path for

regionally significant infrastructure to have adverse effects on highly sensitive

natural heritage values.

In c;!oing so they would adversely affect ~aori values and the relationship

Maori have with the remnant highly sensitive, high value natural heritage

resources in the region.

The PRCEP policy needs to be more measured to take account of the

directives of the NZCPS and RPS policy on Matters of National Importance

for Regionally Significant Infrastructure and the Coastal Environment.

4.25 Coastal environment policies are clear in that regionally significant

infrastructure is not afforded special status that would warrant a

consent path to create adverse effects on high value natural heritage.

4.26 The coastal policies do have inbuilt contradictions that are exposed by

the evidence produced by the planners:

a. in that natural character is to be protected from "inappropriate"

subdivision use and development by requiring the coastal plan

to include provisions that would ensure adverse effects on

677

attributes that make up outstanding natural character are

avoided. 13

16

The attributes ·are in tables in the appendices. Maori values are

included in the attributes. In some cases infrastructure and other

items are included as being present and considered part of the.

natural character.

No policies deem regionally significant infrastructure to be

appropriate. Infrastructure would be deemed inappropriate if

they create adverse effects on attributes that lead to the ranking

of natural character as outstanding.

Therefore it would have to be proven that adverse effe.cts on the

attributes that make up natural character and other matters of

national importance were minor before regionally significant

infrastructure could be considered appropriate.

b. zoning or other spatial planning mechanisms are to provide for

activities that have a functional need to locate in the CMA.14

Evidence produced in this case on the location of regionally

significant infrastructure is a step towards achieving a spatial

plan but has not been incorporated into the RCEP. Until it has

been put up and tested for adverse effects against the attributes

or elements that establish the outstanding or significance

ranking in the appendices, I consider the policy recommended

by Forest and Bird is necessary to ensure adverse effects on

significant natural heritage areas are not adversely affected.

c. indigenous biodiversity meeting the criteria in Policy 11 NZCPS

is protected. 15

13 Ibid Policy CE 2B 14 Ibid Policy CE SA 15 Ibid Policy CE 68

678

It would be inconsistent with regional policy for the PRCEP to

provide for activities to create adverse effects on natural

heritage areas of significance protected under this policy.

Amendments sought by Forest and Bird achieve better

consistency.

17

d. Whether subdivision use or development is appropriate is

subject of a policy detailing considerations to be taken into

account. Where natural character or another matter of national

importance is scheduled, mapped and ranked as outstanding

the level of protection afforded is set out in Pqlicy CE2B.

As shown above Policy CE 28 subdivision use and

development is inappropriate if it creates adverse effects on the

attributes that make it outstanding or significant.

The Forest and Bird amendments address this to ensure the

PRCEP gives effect to the RPS on matters of national

importance including 1natural character and provide clear

protection of highly valued natural heritage (mapped and

described in the RPS and PRCP) from adverse effects as

directed by the NZCPS.

4.27 I cannot therefore reach the conclusion that regionally significant

infrastructure is appropriate in areas of ONC in circumstances where it

creates adverse effects. I therefore do not agree that a consent path

should be made available for infrastructure to have more than minor

adverse effects on significant sites scheduled and mapped either in the

regional policy statement or PRCEP.

Furthermore areas not mapped but found, applying the criteria in RPS

Appendix F, to achieve the status of protection provided under MN 1 B,

would also be afforded the same protection.

679

This would be a consideration in a consent path for infrastructure

considered in an area that has not been mapped or included in a

schedule.

18

It is a matter that Ngati Makino have raised in relation to ASCVs which

warrant the protection afforded .to ONC, ONLF and Areas Of Significant

Biodiversity Values and addressed by Ms Bennett 16.

4.28 Essential considerations not taken into account by the evidence in chief

from the planners are policies are RPS policies which require:

a. recognition of matters of significance to Maori. 17

The rebuttal evidence of Pia Bennett establishes that the highly

valued natural heritage items in the schedule to the RPS and

PRCEP that are within their rohe are matters of significance to

Ngati Makino.

b. account to be taken of the principles of the Treaty of Waitangi;

the special status of tangata whenua and the right of each iwi to

define their own preferences in sustainable management of

natural and physical resources.18

Through the involvement of Ngati Makino in mediation and as

noted by Ms Bennett in her rebuttal evidence, Ngati Makino's

preference is to ensure highly valued areas of natural heritage

including areas of significant cultural value are protected from

the adverse effects of activities including regionally significant

infrastructure.

c. adverse effects on matters of significance to Maori to be

avoided, remedied or mitigated.19

16 Allocated to the lwi Management Appeal Topic 17 BOP RPS Policy IW 2B 18 Ibid Policy IW 3B and NZCPS Objective 2 and Policy 3 19 Ibid Policy IW 5B

680

19

This policy provides for mitigation or remediation for sites of

significance for Maori. For highly valued sites of natural heritage

incorporating Maori values the more complete protection of

avoidance is necessary. To achieve this Forest and Bird

amendments are necessary so that consent pathways are not

available unless effects are less than minor.

Ms Bennett in her rebuttal emphasizes a vital s32 RMA

consideration to achieve more effective and efficient

administration and outcome by having greater certainty for iwi

Maori and development proponents about where consent paths

are open to them and where they are not.

Where opportunities may exist and where it is not effective or

efficient for kaitiaki and developer to allocate resources.

d. encourage tangata whenua to identify measures to avoid,

remedy or mitigate adverse cultural effects.

As Ms Bennett has concluded there are sites that iwi Maori have

identified where measures are in place to avoid remedy or

mitigate adverse cultural effects. Further work is required to

identify sites that have not been recorded and to ensure

measures are in place to avoid adverse effects on those that

warrant a higher level of protection. It is therefore important that

for sites that gain an overall ranking of significant or outstanding

when other elements or attributes are taken into account,

adverse effects are to be avoided. Remediation or mitigation is

not an option in those cases.

Ngati Makino and others have identified the need to establish a

level of protection that would ensure consent paths were not

open to create more thsn minor adverse effects on these

characteristics ..

Further consultation and engagement with iwi Maori will reveal

additional sites or- attributes of significance to iwi Maori.

681

20

5. CONCLUSION

5.1 I consider the amendments proposed by Forest and Bird will provide efficient

and effective means of giving effect to the relevant objectives and policies set

out in Part 2 of the RMA, the NZCPS, NPS ET, and RPS recognizing and

providing for high value Maori place on natural heritage and preserving or

protecting natural heritage in the coastal environment.

5.2 In doing so the amendments sought provide a more appropriate policy

framework to manage the adverse effects of subdivision use and development

that includes the provision of regionally significant infrastructure to achieve

sustainable integrated management of natural and physical resources in a

manner sensitive to the relationship of tanagata whenua with the lands and

waters.

Graeme Lawrence Planner

14 September 2016

682

683

BEFORE THE ENVIRONMENT COURT AUCKLAND REGISTRY

CONCERNING Appeals under clause 14 of the First Schedule of the Resource Management Act 1991

BETWEEN NGATI MAKINO HERITAGE

AND

AND

AND

TRUST

(ENV-2015-AKL-000140)

NGATI RANGINUI IWI INCORPORATED. SOCIETY

(ENV-2015-AKL-000141)

Appellants

BAY OF PLENTY REGIONAL COUNCIL

Respondent

VARIOUS INTERESTED PARTIES

Section 27 4 Parties

Statement of Evidence for Graeme Jame~ Lawrence

Dated this 5th day of October 2016

.I


First Floor 1422 Eruera Street P.O. Box 1693 ROTORUA 3040

Ph: 07 348 0034 Fax: 07 346 2933 DX JP30025 Email: [email protected]

[email protected]

Counsel Acting: Jason Pou / Robert Enright/ Ashanti Neems

684

May it Please the Court:

INTRODUCTION

1. My name is Graeme James Lawrence. I hold a Bachelor of Social Sciences


Lawrence Cross Chapman & Co Ltd, a Thames based company that

specializes in providing environmental planning and resource management

services to public and private clients in the upper North Island.

2. I have been a planner working in environmental planning either professionally

or in management for 40 years. Prior to setting up my own practice in Planning

in 1998, I was engaged by the Thames Coromandel District Council as the

Manager of Environmental Planning Services responsible for the Council's

policy development, regulatory and monitoring functions.

3. I was a planner providing district and regional planning services in the Waikato

and Thames Valley before that. I have been an Honorary Lecturer in

Geography at the University of Waikato until recently and I am a Director of

the Environmental Defence Society Incorporated.

4. I have been engaged in providing planning advice to various Maori entities

now since the early 1970's, contributed to iwi management planning exercises

and commissioned and supervised studies into investigations of various Maori

land development issues.

5. Recently I have provided planning evidence to the Environment Court and

High Court in the Kawhia Harbour suite of cases and for Te Runanga o Ngai

Te Rangi ·lwi Trust ('TRONIT") and contributing hapu and Tauranga Moana

lwi Customary Fisheries Trust in respect to the Port of Tauranga Harbour

Dredging case and for the former in respect to the Blakely Pacific Matakana

Island subdivision case.

6. I am currently involved in cases concerning the preparation of the first District

Plan for Motiti Island and variation to the Bay of Plenty Regional Policy

Statement and .Proposed Regional Coastal Plan to give effect to the New

Zealand Coastal Policy Statement 2010.

7. In preparing this evidence I have taken into account changes to the Proposed

Regional Coastal Environment Plan (pRCEP) agreed between parties, the

1

Bay of Plenty Regional Policy Statement (RPS), New Zealand Coastal Policy

Statement (NZCPS) and Part 2 Resource Management Act (RMA) as well as

evidence produced for Ngati Makino Heritage Trust and Motiti Rohe Moana

Trust. I was involved in a workshop and mediation on the topics of Natural

Heritage and lwi Resource Management.

8. I confirm that I have read the Code of Conduct for expert witnesses contained

in the Court's Practice Note 2014 and that I agree to comply with the Code. I

also confirm that I have not omitted to consider material facts known to me

- that might alter or detract from the opinions expressed in my evidence.

Scope of Evidence

685

9. My statement of evidence addresses outstanding issues raised by Ngati

Makino Heritage Trust (NMHT), Ngati Ranginui lwi Incorporated Society, the

Te Arawa ki Tai Trust, and to a certain extent, the Motiti Rohe Moana Trust

(MRMT). There is a significant overlap in the outstanding issues that_ have

been raised in these appeals relating to the. recognition and provision for iwi

. Maori in the Coastal Plan in general.

10. As matters have worked out, these appeals are now on separate tracks and

my evidence seeks to provide processes and o~tcomes which if adopted

would allow for the matters raised within them to be provided for within the

operation of the Coastal Environmental Plan.

11. I understand that the five hapu of Matakana Island also have an interest in the

outcome to these appeal points. The focus of my statement is on relief sought

in the notices of appeal by NMHT that would set in place an appropriate

planning framework to address cultural values in an integrated way so that the

significant cultural values are properly identified1 and incorporated as key

elements or attributes into the assessment of outstanding natural landscapes

and features, biodiversity and in the further development of spatial planning

in the pRCEP2.

1 In accordance with Section 8 RMA and RPS Policy IW 2B(b) in recognising matters of significance to Maori states: "Proposals which may affect the relationship of Maori and their culture and traditions must (b) Recognised that only tangata whenua can identify and evidentially substantiate their relationship and that of their cultural and traditions with their ancestral lands, water, sites, waahi tapu and other taonga. " 2 My understanding is that the appeal by MRMT is on hold until mid-2017 but that there are general issues raised in both the NMHT appeal and the MRMT appeal which overlap, such as marine spatial planning, integrated management and co-governance. ·

2

686

12. I have identified the outstanding issues below, providing a sequence which

when followed would achieve the appropriate outcomes. Outstanding issues

are:

(

a. Involvement of iwi Maori (including iwi, hapu and whanau) in the

development and assessment of the Natural Features and

Landscapes within their rohe. Involvement of iwi Maori »1ould enable

them to contribute criteria, attributes and adaptation to the

assessment framework and methodology so that matauranga can be

incorporated into the assessment of IBDs, Natural Features and

Landscapes and Areas of Significant Conservation Value.

b. Engagement of iwi Maori, to identify areas of significance and to

incorporate matauranga in accordance with tikanga. This

engagement is necessary in order to achieve Policy 2(a), (b) and the

first part of 2( c) of the NZCPS. 3

1 The pRCEP lwi Resource Management objectives and policies

espouse this approach but have not given further effect to them.

Practical effect to the policies is gained by engagement with iwi Maori

through the appropriate entities and their appointed advisers.

Structural amendments to the pRCEP to enable individual iwi and

hapu to provide additional detail that fits into spatial planning

frameworks. Ngati Makino Heritage Trust, MRMT, and Matakana and

Rangiwaea hapu have the traditional and contemporary knowledge

and representative structures to engage with the Council to ensure

appropriate frameworks are put in place.

c. The rohe for each of the parties has been identified:

• Ngati Makino in their deed of settlement and map. Di Lucas

has attached a series of maps to her primary evidence. \

Attachment 35 identifies an ASCV 7 A and 7B overlaying

3 I acknowledge as a legal issue that the King Salmon decision indicates reference to s6 values may not be required where the higher order planning instruments (NZCPS, RPS) implement matters of national importance. SB RMA is still required to be conside_red.

3

687

ecological values. Attachment 36 shows ASCV 7 A and 78 in

relation to Motiti Rohe Natural Environment Area and

Attachment 27 shows ASCV 7 A and 78 in relation to other

ACVs on an aerial oblique.

" MRMT adopting the Motiti Natural Environment

Management Area identified in the Operative Regional Policy

Statement and the ASCV 25 identified on PRCEP Map series

b as 43b with boundaries refined·as shown on attachment 38

to Di Lucas's primary evidence.

s For Matakana hapu, Matakana and Rangiwaea Islands and

adjacent coastal and harbour waters.

d. Mapping and Assessment of Indigenous Biodiversity Areas (IBDAs);

Natural Features and Landscapes (NFLs) including those ranked as

outstanding, very high or high; and ASCV for Ngati Makino with_in their

rohe require extension and refinement:

• For NMHT ONFL 14 extended to \he Waitahanui River mouth

and across the seaward frontage of the marae at Otamarakau;

• IBDA and IBDB to address habitat requirements to support

viability of taonga species;

• Extend ONFLs to include the entire Matakana Island forested .

sand barrier4;

s Create a new ASCV 7 A incorporating ASCV 7 and extending

it over the Ngati Makino rohe from Maketu to Matata as shown '

on the map included as attachments 7, 8 and 15 to Di Lucas's

primary evidence including reef system ASCV 7B.

e. Include attributes for IBDAs ONFLs, HNFLs and ASCVs in

accordance with matauranga as was the case for the ONC areas for

the Motiti Natural Environment Area (within the rohe of MRMT) and

4 I understand this is the subject of a separate hearing scheduled for 2017.

4

/

for the Okurei Point Marine Area and reefs (within the rohe of NMHT)

introduced through Variation 1 Coastal Environment to the RPS.5

688

f. Incorporate matauranga by way of the additional attributes for the

different overlays within the rohe of NMHT, MRMT and Matakana and

Rangiwaea hapu.

This is particularly important for the following reasons:

• The overlays are used to identify different values · of the

coastal marine area6;

• They trigger policies and rules to manage adverse effects of

activities;

• Policies and rules are designed to manage adverse effects of

activities on natural heritage (natural character, natural

features and landscapes and indigenous biological diversity),

historic heritage recreation (including surf breaks) and areas

of significant cultural value;

• The policies and rules. are directed at avoiding, remedying or

mitigating adverse effects on the attributes of the various

overlays, not adverse effects on or within the- areas

themselves (including effects from adjacent areas)7;

• The threshold for avoidance of adverse effects applies to

attributes and values of ONC, ONFL and IBDA through Policy

NH 4 not for ASCV wbere the threshold for avoidance is when

adverse effects become significant otherwise remediation or

· mitigation is accepted.8

g. Attributes and values derived from matauranga must be included in

the schedules for the overlays in the pRCEP so that assessments of

effects take into consideration adverse effects on the values and

5 See Operative BOP RPS Appendix I (Natural Character Maps) and Appendix J (Table of Natural Character Attributes) 6 See PCEP Part One Section 5 Plan Mechanisms 5.2 Zoning and Overlays 7 See PRCEP Policy NH 4 in respect to avoidance of adverse effects on values and attributes of ONG ONFL INDA Area A. See also Policy NH 4A for assessing extent and consequences of adverse effects on values and attributes. 8 See PCEP IW 2

5

attributes that iwi Maori ascribe to them in accordance with

matauranga.

689

To do otherwise would result in decisions being made o'n applications

that would not protect attributes and values derived from matauranga

in the case of outstanding natural features and landscapes of the

coastal environment. 9

Nor could decisions properly take into account whether subdivision

use or development is appropriate or inappropriate when protecting

areas of high or very high and outstanding natural character. 10

Attributes and values derived from matauranga are also necessary

so that assessments of the state of mauri can be determined along

with consideration of whether restoration or rehabilitation of natural

character is appropriate 11 •

h. The Biological Diversity Area Overlay A identifies areas that warrant

protection; Biological Diversity Area Overlay B identifies areas that

warrant maintenance; maintenance of indigenous biological diversity

is promoted generally throughout the coastal environment; and

enhancement or restoration is encouraged "where appropriate" to

"safeguard the integrity, form functioning and resilience of the coastal

environment and sustain its ecosystems. ,,.,2

i. Ensure adverse effects of regionally significant infrastructure on

outstanding biological resources, areas of outstanding natural

character, outstanding landscape and natural features, and areas of

significant cultural value are avoided13.

j . Maori cultural values and the relationship of tangata whenua with

their ancestral lands, coastal environment, taonga and resources are

an inherent component to the understanding of natural herita.ge and

the adverse effects activities may have on natural heritage. There is

a cultural dimension to natural heritage and this overlap needs to be

9 ibid Natural Heritage Objective 2(a) 10 Ibid first part of Objective 2(b) 11 Ibid second part of Objective (2(b) 12 Ibid objective 2A 13 This point of appeal is addressed through the NMHT Appeal on Natural Heritage

6

690

addressed, not compartmentalized into other sections of the . .

proposed coastal plan. This needs to be recognized and provided for

to protect natural heritage from adverse effects.

13. The other suite . of outstanding points of appeal relate to the relationship

between the Maori entities representing iwi Maori and the Planning Agencies

- Councils and consent authorities. The central focus is on having the

Regional Council implement the objectives and policies clearly set out in the

RPS14.

The issues are clearly articulated in the RPS as follows:

a. Inadequate recognition of kaitiakitanga Maori resource management

systems· and Te Tiriti o Waitangi principles.

b. Insufficient protection of tangata whenua environmental values

c. Inconsistent inclusion of tangata whenua in resource management

decision making

d. Degradation of mauri and the need for mauri to be protected and

restored.

e. Difficulties in development of Maori land

f. Inadequate recognition and provisions of iwi/hapu resource

management plans

g. damage and destruction of special cultural sites and taonga

h. Inappropriate responses due to poor information and late involvement

of affected parties.

14. It would be hard to improve on this list of issues central to concerns of the

appellants ands 274 parties. Objectives and policies address these issues in

the RPS and they include:

1• See Section 2.6 Operative Bay of Plenty Regional Policy Statement

7

a. kaitiakitanga recognized and principles of the Treaty taken into

account by15:

• Recognize the treaty in exercise of powers & functions under RMA16

• Cultivating partnerships 17

• Enable development of Maori land in the coastal

environment18

• Consult in identifying and resolving RM issues 19

b. Partnerships between Councils and iwi authorities20

• Adopt an integrated approach21

• Consult to identify and resolve RM issues22

• Cultivate partnerships between iwi and statutory agencies23

c. Management Decisions have regard to iwi and hapu RM planning

documents24

• Take into account iwi and hapu management plans

• Encourage tangata whenua to identify measures to avoid,

remedy or mitigate adverse cultural effects.25 Method 3

specifically identifies varying, reviewing or replacing plans as

a means of achieving this policy.

• Encourage development of iwi and hapu RM management

plans

15 Table 6 Objective 13 ibid p 56 16 ibid Policy IW 3B 17 ibid Policy JW 7D 18 ibid Policy JR1B 19 ibid Policy JR 4B 20 ibid Objective 14 21 ibid Policy IR 3B 22 ibid Policy JR 4B 23 ibid Policy IW 7D 24 ibid Objective 15 25 ibid Policy 6B

8

691

15. Rather than implement these objectives and policies, the RCEMP has largely

reworded them.

16. Tangata whenua are able to identify the special relationships they have with

their land and waters. They have established entities with whom the Regional

and other Councils can consult and enter into partnerships with to implement

or give effect to the lwi Resource Management objective of active

engagement of tangata whenua in management of the coastal environment

when activities may affect their interests and values.26

17. Overlays are in place. They require further refinement to properly identify their

location and extent as well as the values and attributes which are key to the

management of adverse effects on or within them. A relationship of co

management is encouraged by the RPS policies and sought by the Maori

entities themselves. Co-governance at iwi and hapu levels is also sought.

18. Through further use of spatial planning, management areas can be put in

place with objectives, policies and rules to achieve integrated management -

integrated management between the overlays, incorporating mari.ne and

coastal areas of significant cultural value as well as general marine areas

which have been identified as having high natural character.

19. In the first instance, objectives and. policies can be developed and appropriate

methods identified. Rules may be developed for the CMA component of the

management area. Objectives polici~s and rules for land areas would be

addressed through District plan and Regional Land Water Air plan.

20. MRMT has developed a spatial plan that followed this approach in providing

objectives and policies for the CMA of the Motiti Natural Environment Area

identified in the RPS. It provides a simple rule set for an identified part of the

Motiti Natural Environment Area. This is sought by MRMT in order to provide

for adequate protection and maintenance of ecosystems of significant

indigenous biodiversity27. The policies and rules also combine to ensure

adverse effects on the values and attributes of a discrete area are not only

26 See PREP Objective 12 for example 27 To meet Natural Heritage Objective 2A

9

692

avoided28 (to meet Policy NH4) but also provide the fram~work for ongoing

restoration and rehabilitation of natural character and indigenous biodiversity.

21 . NMHT seeks a spatial plan for its rohe that includes the area shown as ASCV

7 A and 78 inland to the full extent of the coastal environment within the area·

subject of the Ngati Makino Deed of Settlement.

22. A spatial plan would be an appropriate way of achieving integrated

management of effects on the multi layers of resource management issues in

and around Matakana Island.

SPATIAL PLAN FRAMEWORK

693

23. The PCEP is structured in a manner that enables refinements to be made by

adding zones or overlays. There is also an opportunity to provide for additional

spatial planning techniques such as introduction of "management areas",

"policy areas" or the like .

. 24. Two zones have been utilized: the Port Zone and the Harbour Development

Zone. As the Plan states these recognize areas where there is a high level of

existing modification and where new uses and activities have relatively low

impact.29

25. The Overlay technique has been applied to identify different values of the

coastal marine area on maps and in schedules. These will trigger policies and

rules designed to manage potential adverse effects on the values and

attributes of the layers. ·

26. The introduction of Management Areas covering part or whole of an iwi Maori

rohe would provide the opportunity to establish a framework for integrating

decision making for uses, developments or activities that may impact on more

than one overlay.

27. The management area would be identified on maps in the plan and be

inserted into the plan adopting the hierarchy which fits the current architecture

of the plan (in a manner similar to the zones):

28 To meet NH Policy 5A 29 PRCEP Section 5 Plan mechanisms 5.2 Zoning and Overlays

10

a. Plan mechanisms

b. Significant Resource management Issues

c. Objectives

d. Part Four Policies and Rules

28. The current Plan architecture would enable the Management Area technique

to be introduced as follows: .

a. in Part One Purpose Content Planning Framework

Insert at 5.2 Zoning and Overlays

The plan utilises Management Areas to provide for protection maintenance or enhancement where there are resources with a high level of significance as evidenced by multiple overlays within a rohe of an iwi or hapu.

Management areas identify how adverse effects within areas containing two or more overlays are to be managed1n an integrated manner. One of the overlays will be an Area of Significant Cultural Value.

The Management Area, will trigger specific policies and methods to: (a) avoid. remedy or mitigate adverse effects on multiple'

overlay values: and (b) protect. preserve or enhance the multiple overlay

values; and (c) Identify appropriate uses.

b. · in Part Two Issues and Objectives for the Coastal Environment

the Natural Environment Areas can be added to the list of topic

headings

under '1 . Issues' the significant RM issue(s) for Natural Environment

Area(s) would be identified

under '1 .1 Integrated management' a new issue may be inserted with

following effect:

11

694

New lssue3 Management areas require integrated and comprehensive management to address interrelationships of cultural. biodiversity, heritage. natural character and landscape values.

For each Management Area

under 2.Objectives, objectives for each management area would be

set out

695

c. Part Three under '3.Policies' may need some minor refinements in

response to the appeal points seeking spatial planning to refer to the

policies and rules that apply in Management Areas.

d. Part Four refers to relevant General Policies in Part Three and

provides Specific Policies and Rules which apply to the Management

Area

e. Part Seven would contain a Map Series d- Management Area(s)

f. Alternatively a new schedule, containing Management Plan Map with

policies and rules, could be added to and referred to in appropriate

parts of the Plan.

29. The information contained with the overlay maps and schedules applying to

Ngati Makino will require correction, updating, additions and refinements for

the reasons set out by Pia Bennett in her primary evidence and the manner

recommended by Di Lucas in hers. They can then be drawn on in developing

the Management Plan. Earlier fn my evidence I have identified overlay map

alterations that are being sought.

30. In this way the detailed traditional knowledge and location of sites and areas

can be retained in "closed file" and the key attributes and values ascribed to

the refinement of the overlays and drawing up the Management Plan.

31. The Management Plan once provided for and having taken initial shape and

given its initial content to the extent possible within scope of the appeals can

then be further developed by Variation and Plan Change.

12

696

32. Plan changes can be carried out by the Council having developed a

relationship with iwi Maori without needing to address all at the same time. I

Progressive development of spatial planning in this form can then be tailored

for each entity and its rohe.

33. An evaluation of an issues, objectives and policies framework for

Management Plans is set out in Attachment 1.

CO-GOVERNANCE

34. The RPS identified inconsistent inclusion of tangata whenua in resource co

management and decision making as a significant resource management

issue.30

35. There are a number of frameworks and models available and each is tailored

to p9rticular relationship and circumstances. I would expect that would apply

to each of the parties I have prepared evidence for. Amended wording is

sought to achieve these outcomes.

ISSUES, OBJECTIVES POLICIES REDRAFTED

36. My observation in paragraph 2. 7 above addressed the shortcomings in the

form that the issues, objectives and policies have taken in the PRCP to give

effect to Objectives and Policies in the RPS. They are largely repetitive.

37. Rather than reset them at zero, the iwi issues and objectives need to be

specifically addres~ed include the following:

a. Recognise treaty principles, ancestral relationships and kaitiakitanga

through co-governance arrangements with iwi and hapu.

b. Form partnerships to develop Plans, monitor them and where

appropriate to introduce changes.

3o RPS 2.6.10.3 p54

13

c. Implement mechanisms that provide for expression of kaitiaktanga

including:

• work with contemporary Maori entities that represent iwi and

hapu interests

" engage with cultural or resource management specialists

appointed by iwi M_aori entities

" consult over identification of areas of interest and in ascribing

values and attributes to those areas of interest.

• protect taonga including flora and fauna, safeguarding and

restoring habitat

697

• address Council's statutory functions that require

maintenance of biodiversity, and recognition of Maori interests

under Part 2 RMA, NZCPS and RPS provisions

d. Integrate matauranga Maori into management of the coastal

environment.

e. Identify taonga including indigenous flora and fauna and develop

mechanisms for safeguarding or restoring taonga, biodiversity and

habitat capable of sustaining taonga species.

38. Policies would then be developed to provide the necessary means of I

implementing the objectives formulated to address the issues and include:

a. spatial planning methods such as Management Plans to draw ,

together the information contained in overlay maps and schedules;

b. the requirement that matauranga values and attributes are included

in the schedules for overlays ;

c. overlays and schedules are updated and refined so that they remain

current and accurately reflect the values and interests of tangata

whenua;

14

698

d. cultural markers are recognized and implemented for landscape and

natural feature protection; preservation of natural character and to

protect habitat for taonga species and enhancement31;

e. monitoring to ensure habitat and biodiversity is maintained or

enhanced to sustain taonga species.

39. Detailed wording for changes and refinements to issues, objectives and

policies can be di~cussed.at planner caucusing.

40. I have not included an evaluation of objectives or a s 32 analysis for

reformulation of critical policies at this stage. The evaluatio[l and analysis

would be carried out together with reformulation of the objectives and policies

and turn on the final wording.

41. My observation, having regard to the first two policies are that:

a. Policy IW 1: addressing proposals that may affect the

relationship of Maori and their culture and traditions states:

"must recognise and provide for,32 provides a list:

- Traditional uses, practices and customary activities;

Role and mana of tangata whenua as kaitiaki and the

"practical demonstrat_ion"33 of kaitiakitanga;

Right of tangata whenua to express their own preferences

and exhibit matauranga within their "tribal"34 boundaries;

ASCVs identified in Appendix 6, Statutory

Acknowledgements, iwi/hapu management plans, evidence

by tangata whenua and substantiated by pukenga,

kuia/kaumatua;

Importance _of Cultural heritage values through historic

heritage landscape and cultural impact assessments.

b. The "ASCV 7" does not recognise or provide for the role and

mana of Ngati Maki.no as kaitiaki, does not include deeds of

settlement, does not refer to RM or Cultural advisers appointed

32 "Must recognise and provide for" is a strong directive 33 "practical demonstration" would be helpful to include how the PCEP proposes this may be achieved - by forming partnerships 34 "tribal" - needs to read tribal or hapu ( or whanau?)

15

by an iwi or hapu entity. The addition of ASCV ?A & 7B would

address this. In the event the full areas are not included in the

Plan an alternative method will need to be referred to. Instead

of ACSV or in addition to ASCV,"Management Area" may be

referred to.

c. This policy does not address natural heritage values directly -

it could be implied that it does-if natural heritage falls into one

or more of the categories on the above list.

d. This policy and other related policies need to make clear

attributes and values ascribed to areas of natural heritage (and

biodiversity) value as mapped and included in the schedules

express the relationship and values which kaitiaki wish to

preserve and enhance. The~e attributes must be added to the

schedules and adverse effects on them managed.

e. Policy IW 2: addressing resources or. areas of spiritual, historic

or cultural significance to tangata whenua states: "avoid

significant adverse effects". 35 The policy then states that the

criteria consistent with those in Appendix F set 4 to the RPS are

be used to identify the resources or areas. The list of criteria

includes mauri, waahi tapu, historical, customary resources;

customary needs, contemporary esteem.

f. This does not address the requirement to avoid adverse effects

that are less than significant on attributes and values of ONC or

ONFL or IBDA.

g. The policy is directed at avoiding-significant adverse effects.

The second part creates a glaring contradiction which must be

removed. Other effects, where they are less than significant are

to be be avoided and if they cannot be avoided then they may

be mitigated, remedied or offset.

35 The policy it does not address ASCV values or attributes or values ascribed to other overlays (such ONG and ONFL) by applying matauranga. Having said "avo'id significant'' it then goes on to say "where significant adverse effects cannot be avoided, remedied or mitigated" it may be possible to offset. ·

16

699

42. The key drivers for the revisions and additions are:

a. the need to achieve greater relevancy through .objectives that

establish how tangata whenua will be involved in management of the

coastal environment at co governance level overlooking and guiding

implementation and review of planning documents as well as at a

decision making level

b. · achieve greater usefulness by operationalizing the aspirations

expressed in the RPS objectives

700

c. improve efficiency and effectiveness by incorporating new

information that is available especially .through developing

relationships with tangata whenua entities and forming partnerships

that enable on going exchanges of information and insights.

d. provide for regular reviews to ensure the plan remains an up to date

relevant document.

e. existing objectives, policies and methods require revision to address

s6(e), s7(a), s8 and NZCPS / RPS expectations to avoid adverse

effects, or significant adverse effects, on Maori cultural values. For

example, policy IW2 should require avoidance of significant adverse

effects, and mitigation, remedy or offsetting of adverse effects that

are not significant.

CONCLUSION

43. I consider further revisions are required to update and refine the lwi

Management Issues Objectives and Policies in Parts Two and Three of

the RCEP. Consequential changes to methods will then be required.

· 44. ASCV 7 does not include values that express the special relationship

Ngati Makino have with the land and waters within their rohe contained

within the coastal environment. A new ASCV 7 A and 78 to incorporate

NMHT's relationship with the land and adjacent waters is a primary

consideration for NMHT.

45. Changes and additions including refinements to issues objectives and

policies covering the points addressed in section 4 above will better

17

implement higher order planning instruments in particular Part 2 of the

RMA, NZCPS and RPS.

46. In particular a framework for introducing Management Areas as a spatial

planning tool would better achieve the purpose of the RMA and in

particular the objectives of the RPS.

47. Matauranga attributes and values need to be added to the schedules for

overlays within the rohe of the MRMT and NMHT.

48. Refinements to overlays have been identified in the draft evidence of Di

Lucas and Pia Bennett. These are recommended.

Graeme Lawrence Planner

5th October 2016

18

701

ATTACHMENT 1

EVALUATION OF MANAGEMENT PLANS

Relevance

1. The provision of a Management Plan is directly related to resource

mana~ement issues that must be resolved to meet Part 2 RMA and RPS

Policies by identifying the rohe of an iwi Maori; providing for the integrated

management of decision making where a rohe contains multiple overlays; to

give effect to the relationship of iwi Maori with land, water and their taonga in

that area; and to provide a framework for iwi Maori to exercise kaitiakitanga

within their rohe.

Usefulness

2. The provision of a Management Plan will be an effective and efficient way of

providing guidance for decision making. The objectives If/ill provide clear

direction on how natural heritage (including indigenous biodiversity values) in

the coastal environment is to be preserved, enhanced or maintained in

accordance with the addition of matauranga considerations. Greater certainty

would be provided to developers by having a planning framework that

addresses the concerns of iwi Maori within the specific area of their

relationship.

Reasonable and Achievable

3 The overlays reflect the value that the regional community places on the

natural environment. The protection and enhancement of natural environment

including indigenous biodiversity and taonga species is expected not only by

iwi Maori but the wider community .

. lwi Maori have a wealth of traditional and contemporary knowledge; the desire

to exercise· kaitiaki and apply matauranga especially when the appropriate

relationship and context for doing so is established.

Benefits

4 There are activities particularly those that disturb areas of value to iwi Maori or

involve modification to natural heritage or destruction or removal of indigenous

flora and fauna that upset or modify indigenous biodiversity. Invasive activities

have reduced or harmed biodiversity values in areas which can be identified

for restoration or recovery. New policy wording should avoid activities or uses

which reduce biodiversity or affect the ability of habitats to sustain taonga

19

702

Costs

species. Ecologically significant sites, taking into account matauranga, will be

mapped. The ecologically and other culturally significant sites, once mapped

having regard to matauranga, will provide certainty about potential scope for

adverse (or beneficial) impacts.

5 There will be costs in preparing the plans. Once completed they will provide

cost savings directly to parties in considering appropriateness of activities

before embarking on them and, if having done so, in preparing and assessing

applications. Other costs (such as inability to undertake activities contrary to

identified Maori cultural values, where avoidance is required) are outweighed

in light of matters of national importance under s6(e) , s7(a), s8, NZCPS and

RPS values.

Efficiency

6 The costs associated can be spread by implementing a Management Plan

framework with focus on resolving issues relating to the values and attributes

of overlays applicable within the rohe of an iwi or hapu, managing the

relationship between them and maintaining or enhancing the iwi Maori

attributes and values. The Management Plans can be created on a case by

case basis and developed in partnership with specific iwi Maori entity(ies) over

time making a start within the Plan now and by variation and plan change.

Effectiveness

6. 7 The introduction of Management Plan for a rohe will be effective in achieving

RPS objectives and PCEP objectives from the perspective of developing

relationships with iwi Maori. Producing, developing and administering them

would provide for "The active engagement of tangata whenua in management

of the coastal environment when activities affect their interests and values. "36

The Management Plan would also address:

a. protection or restoration of sites and areas of significance37 that are

known through traditional oral sources or, if recorded, kept on closed

file.

b. identify areas of customary activity and manage the effects of other

activities on them. 38

c. develop appropriate measures or indicators for monitoring state of the

environment or review of granted consents. 39

36 RCEP lwi Resource Management Objective 12 37 Ibid Objectives 14, 15 and 17 38 Ibid Objectives 13 and 15 39 Ibid Objective 16

20

703

d. encourage compatible Maori development of Maori land within the

coastal environment.40

40 RPS Objective 16

21

704

BEFORE THE ENVIRONMENT

COURT AUCKLAND REGISTRY

705

CONCERNING Appeals under clause 14 of the First

Schedule of the Resource Management

Act 1991

BETWEEN

AND

AND

AND

NGATI MAKINO HERITAGE

TRUST

(ENV-2015-AKL-000140)

NGATI RANGINUI IWI

IN CORPORA TED SOCIETY

(ENV-2015-AKL-000141)

Appellants

BAY OF PLENTY REGIONAL

COUNCIL

Respondent

VARIOUS INTERESTED PARTIES

Section 274 Parties

Reply Evidence for Graeme James Lawrence on behalf of Ngati Makino

Heritage Trust and Others

Dated this 6th day of December 2016


First Floor · 1222 Eruera Street P.O. Box 1693 ROTORUA 3040

Ph: 07 348 0034 Fax: 07 346 2933 DX JP30025 Email: [email protected]

[email protected]

Counsel Acting: Jason Pou/ Robert Enright/ Ashanti Neems

706

May it Please the Court:

INTRODUCTION

1. My name is Graeme James Lawrence. I hold a Bachelor of Social Sciences


Lawrence Cross Chapman & Co Ltd now based in Devonport and specializes

in providing environmental planning and resource management services to

public and private clients in the upper North Island. My qualifications and

experience are outlined in my evidence in chief.1

2. For completeness, I repeat the ·confirmation given in my evidence in chief,

being that I confir.m that I have read the Code of Conduct for expert witnesses

contained in the Court's Practice Note 2014 and that I agree to compiy with

the Code. I also confirm that I have not omitted to consider material facts

known to me that might alter or detract from the opinions expressed in my

evidence.

3. I have prepared this evidence in reply on behalf of Ngati Makino Heritage

Trust (NMHT), Ngati Ranginui lwi Incorporated Society, The Te Arawa ki Tai

Trust and to a certain extent the Motiti Rohe Moana Trust all who sought a

spatial planning as a means of providing integrated management within their

areas of interest to provide a more effective and efficient means of

management effects where there multi layered values come into play when

protecting natural heritage values and providing for cultural heritage and

contemporary uses and activities.

4. I have reviewed the statements of evidence prepared in support of appellants

as well as the evidence prepared by:

a. Nassah Steed for Bay of Plenty Regional Council;

b. Kataraina O'Brien for Bay of Plenty Regional Council; and

c. Joanna Noble for Bay of Plenty Regional Council.

Evidence in reply for the s 27 4 parties, namely:

1 Dated 5 October 2016

1

707

d. Keith Frentz for the Te Tumu Landowners Group .

e. Di Lucas for Motiti Rohe Moana Trust

f. Dr Roger Grace for Motiti Rohe Moana Trust

g. Nepia Ranapia for Motiti Rohe Moana Trust

h. Umuhuri Matehaere for Motiti Rohe Moana Trust

Hugh Sayers for Motiti Rohe Moana Trust

j. Chris Home for Transpower

5. I have not sought to address instances where conclusions drawn by other

experts differ or disagree with my own. In the cases of Ms Noble, Nassah

Steed, Chris Horne and Keith Frentz, I note that in reaching their conclusions

they chose to rely on wordsmithing to maintain a planning framework and that

makes improvements but leaves action points for iwi Maori groups seeking

resolution of long standing issues for another day.

6. I have reached the conclusion that the amendments and refinements

proposed by Ms Noble in her evidence and appendix B provide useful and

helpful improvements.

7. They remain more of the same. They continue to apply at a high theoretical

level as attested to by the level of analysis by Mr Horne and Mr Frentz. The

PCEP continues to fall short on providing appropriate management

framework and tools for collaboration with iwi Maori on achieving sustainable

resource management.

SCOPE OF EVIDENCE

8. My reply evidence focusses on four main issues and is structured in this way:

a. Providing a spatial planning framework in the form set out in my

evidence in chief which I add to provide an opportunity for different

Maori groups and the Council to work together collaboratively to

introduce an ppropriate spatial plan for a particular rohe or to give

2 Lawrence SOE dated 5 October 2016 para28

2

708

expression to or deliver co-governance outcomes. Detail sought in

evidence by MRMT to achieve the issues and objectives in the spatial

plan for the Motiti Natural Environment Management Area would be

incorporated into the PRCEP. The framework provides for further

development by NMHT3 with introduction of a Mana Whenua Spatial

Plan by way of a 1st schedule RMA process.

b. Incorporating ASCV 7 A and 7B as identified in evidence by Ms Lucas4

and described by Ms Bennet in her reply to ensure the area of cultural

significance to Ngati Makino is appropriately provided for5•

c. Prioritising work streams to ensure the PRCEP more effectively and

efficiently provides for Maori aspirations particularly to address

recognized shortcomings before it is made operative.

d. Provide mechanisms and for co-g-avernance and co. m_anagement.

9. Maori cultural values and the relationship of tangata whenua with their

ancestral lands, coastal environment, taonga and resources are an inherent

component of natural heritage. There is a cultural dimension to natural

heritage and this overlap needs to be addressed, not compartmentalized into

different sections of the proposed coastal plan.

10. Whilst the Council's recognition and acceptance that protection of natural

heritage (character, processes and biodiversity) and landscape and features

all form part of a cultural landscape is noted. So too is the recognition that

"further work is likely to be required in this area."6 This is one work stream

that warrants urgent attention.

11. Without the Maori attributes and values the ranking of natural heritage and

therefore degree of protection provided by the policy instruments remains

inconsistent. I would expect areas ranked high or maybe not ranked at all

may achieve higher ranking when cultural values and attributes are applied. It

is not effectiv:e or efficient to have incomplete or inadequate schedules. The

s32 RMA analysis requires a higher standard.

3 NMHT sought spatial planning in the coastal environment and includes concepts such as Wahi Tupuna Mapping/Mana whenua Spatial Plan 4 Lucas SOE dated 5 October 2016 para 52 & attachments 5-8 and 27 and 28 5 Noble SOE 21 October 2016 paras 146-149 refer 6 Ibid para 88

3

REPLY

709

12. One of the difficulties facing the appellants and the supporting parties is the

inconsistent application of ASCVs. The CMA was largely left without mapping I

and identification of sites 0f value or significance.

13. The mapping and identification of cultural sites of significance within the CMA

is . a vital first step to understanding the natural character,

landscape/seascape and features within the CMA. This is another work

stream which has urgency. NMHT, Ngatii Ranginui, Te Arawa ki Tai Trust

and MRMT consider identification of cultural sites and areas of significance

within the CMA is a vital part of the PRCEP.

Spatial Plan

14. In my evidence in chief I provided a brief scope and structure for a spatial

plan in the form of a Management Area and showed where it would logically

sit in PRCEP.

15. To the framework recommended in my EiC I recommend the following

additions:

a. an additional issue to address co-governance;

In Part Two Issues and Objectives following Issue 3 recommended in

in my EiC add:

Issue 4: Collaborative resource management decision making by I

way of co governance and co management has f?een a

longstanding aspiration for the Council and for tangata

whenua. Spatial plans provide an opportunity for Council and

tanagata whenua for a particular area or rohe to engage in

collaborative decision making.

b. add to Part Two Issues and Objectives a new 2.11 Spatial Plans with

3 objectives (noting these carry consecutive numbers through the

different topic headings - the last being Port Zone):

4

710

Objective 50: The protection and restoration · of natural

landscape, features and character, biological biodiversity,

ecology and cultural values.

Objective 51: Enable the restoration rehabilitation and

recovery of CMA from the effects of catastrophic events; from

cumulative effects past activities; or where the relationship of

Maori with waters and taonga (including fishery species) is

impaired.

Objective 52: Provision of a defined area within which tangata

whenua, Council and other agencies may exercise

collaborative decision making on resource management

issues.

c. Add policies in the appropriate location in Part 3 according to and

specific to a particular spatial plan being introduced.

d. Add a new policy and method in lwi Resource Management

Under 3.1 Policies

"IW (new) Provide a spatial plan where natural heritage and cultural

heritage values overlap or collaborative decision making is required to

maintain or restore indigenous biodiversity, protect habitats of

significance to Maori, preserve natural character of the coastal marine

area, provide for the relationship of Maori with sites, areas cir waters

and taonga; and to provide for kaitiakitanga. "

Under Part 5. Methods a new heading "Integrated Management" to

provide a cross reference to the spatial planning framework

introduced above:

1'Apply a spatial plan where there are two or more overlays or special

or significant natural and cultural heritage values are present, or to

provide a spatial context for co governance or co management

between the Regional Council and tangata whenua."

I have attached as Attachment 1 a copy of the amendments I recommend to

introduce spatial plans into the PRCEP.

5

711

·15_ Introduction of spatial planning by this framework in the PRCEP would not

only address the plethora and often repetitive objectives, policies and

methods that Ms Bennett identifies lack the necessary detail to be meaningful

for tangata whenua. It would also provide a framework for co governance and

co management between identified tanagata whenua, Council and other

agencies.

17. In the case of MRMT the Motiti Natural Environment Management Area

(MNEMA) is proposed to be introduced via its submission and appeal.

understand this will be subject of a future hearing.

18. For the appellants and other s274 parties who seek a spatial plan I accept

that a spatial plan would be introduced by way of a 1st schedule RMA

process. I agree with Ms Noble that ASCVs are not designed or intended to

identify or "demark'' a rohe for iwi or hapu or an area of interest.

19. A spatial plan in the form of a "management area" may or may include a rohe

or part of a rohe where resource management issues are to be managed by a

suite of objectives, polices and methods including rules and may also outline

the- co governance arrangements and co-management measures that are put

in place to implement the chosen policies and methods.

20. The spatial plan that applies in any particular case will be tailored to address

the particular resource management issues, means to address them and

means to manage adverse effects arising. At their core the spatial area

would:

a. be within the coastal environment.

b. address the relationship tangata whenua have with the area.

c. provide integrated management between overlays.

d. address natural heritage, cultural landscape, cultural heritage,

customary and contemporary uses and activities.

e. include provisions that address where necessary overlapping interests

if and where they exist.

6

712

f. take into account all relevant overlays.

21. A spatial plan would provide particular benefits by directly addressing issues

arising when trying to integrate policies and methods or to choose relative

weight or relevance within a particular context. Objectives and policies

nuanced for the context or area and the relationships and resource issues

present.

22. While a spatial plan may cover both the landward and seaward sides of

M~WS within the coastal environment any rules would only apply to the

CMA. Where land is included policies would address integration across

boundaries and provide direction or guidance for land use activities and

subdivision under District plans. The exception to this would be if a combined

regional and district docume~t that meets the requirements of s 80 RMA.

ASCV 7 A and 78

23. The incorporation of the ASCV 7 A or Te Paepaeroa o Hei is a critical addition

required to identify the special relationship of Ngati Makino with areas of

significant cultural value to them. I note that Ms Noble supports the

amendment of the current ASCV 7 on planning map 188 to incorporate the

Waitahanui River Mouth and marae frontage.7 This will not address the

relationship or significance of the ASCV to Ngati Makino. Ms Bennett

describes in detail the relationship and significant cultural values that apply.

24. Most notably the ASCV 7 A incorporates coastal waters with inshore reef

systems out to 5.5 nautical miles8 as well the area landward to the coastal

environment boundary from western end of the Maketu estuary to the mouth

of the Tarawera.

25. I need to clarify the area being referred to as ASCV 7 A as the different plans

do not make it clear. 9 ASCV 7 A lies within the area shown in green on the

map appended as Appendix A to Ms Bennett's evidence in chief. The area

depicted in green by Ms Bennett is a stylized version where the boundaries of

7 Noble SOE para 146 & 147 8 Lucas SOE attachments (attachment1 in particular) show Areas 7 A and 78. It must be rroted that ASCV 7 A was delineated at 4 km and 7B beyond that. II did not include Maketu estuary. This is to be corrected by showing the ASCV 7 A to the western end of Maketu Estuary and 5.5 nautical miles off shore thus avoiding the need to show 7B separately. · 9 Noble SOE para 147

7

713

ASCV 7 A would be refined to coincide with the coastal environment line

between western end of Maketu Estuary and ·include the area offshore to 5.5

km.

26. The purpose of establishing ASCV 7 A is to leave ASCV 7 intact to serve the

purpose for which it was introduced into the plan. The addition of ASCV 7 A

recognizes and provides for an area of significant cultural value to Ngati

Makino containing areas and sites of significance or special value to them. 10 I

see no difficulty with have ASCV 7 A overlapping ASCV 7 as the two areas

are identifying different sets of values for different people.

27. The addition of a map identifying ASCV 7A and providing the schedule with

the additional description provided by Ms Bennett the PRCEP can be refined

and improved.

Matauranga Maori attributes and values

28. As Ms Noble has highlighted, the gap analysis11 undertaken for the Council

identified matters the PRCEP would need to address in order to make it

NZCPS compliant. Of those identified there are two that require further work:

a. matauranga Maori

b. identification of areas and sites of significance to Maori.

29. The RPS made a useful start to incorporating matauranga Maori when it

included the introduction of matauranga into attributes and values applicable

to the assessment and description of natural character. This remains a

missing element to the assessment of biological diversity and natural features

and landscapes.

30. The incorporation of matauranga is essential to assessments of:

a. Indigenous Biological Biodiversity Areas contained in Schedule 2

PCREP and other sites that warrant being added

b. Outstanding Natural Feature and Landscape contained in Schedule 3

and others that warrant being added.

10 As provided for in NZCPS Policy 2 (g) (ii) and meeting assessment criteria Appendix F (Set 4 Maori Culture and Traditions) of the RPS 11 Noble SOE para 60

8

714

31 . Much of the confusion and difficulty surrounding finalization of objectives and

policies would be overcome or be directly addressed if this work stream had

been completed. The expectation following the completion of the coastal

section of the RPS and the tentative but successful incorporation of

matauranga into the assessment of natural character for NMHT and MRMT

was that it would be incorporated into the two schedules identified in 30

above.

32. In this way the objectives and policies relating to effects on attributes and

values would take account of Maori and Pakeha world views. This would

overcome concerns about compartmentalization of natural heritage and iwi

management. It would also provide redress for concerns that, without

mataraunga being incorporated, the ranking is affected and therefore the

appropriate degree of protection is not in place.

Areas and Sites of significance to Maori

33. Areas and sites of significance to Maori in the CMA is not adequately

addressed in the PRCEP. I note that feedback was sought from tangata

whenua and it is acknowledged that for a variety of reasons the majority were

unable to engage.12

34. . The work required to do this was identified in the gap analysis referred to and

the "Regional Coastal Environment Review''13 in its conclusion and

recommendations highlighted as a key issue:

"Tangata whenua are committed to kaitiaki [sic] of the coastal environment.

Their meaningful involvement during any changes to the current plan is

important and should be enabled. "

Evidence of Ms Bennett, Mr Sayers and Mr Matahaere suggests that their

involvement was not enabled and the absence of the detailed work required

to identify sites confirms absence of meaningful involvement.

12 Noble SOE para 32 1' BOP RC Strategic Policy Publication 2014/04

9

715

35. It is necessary to complete this work to ensure the PRCEP is relevant and the

information is in place to enable policies to be implemented efficiently and

effectively.

Council Variation

36. A Council variation to the PRCEP working in partnership with tanagata

whenua for the appellants and supporting iwi Maori rohe wo.uld provide

necessary updates and refinements to the PRCEP to give effect to the

objectives, policies and methods being proposed.

37. My concern is that without a variation to address these two information

shortfalls, ones that were identified early in the review pr9cess and had been

considered significant at the beginning of the life of the current operative plan,

will be put off to become work streams in the life of the next Plan.

Co-Governance

38. A core component of co governance lies in developing a relationship between

Council and tangata whenua that fosters sharing in decisions over setting

priorities for the PRCEP and working together to· achieve them .. Out of this

protocols get developed to address allocation of resources and timeframes

for achieving them.

39. The work streams and priorities set out above are critical to the appellants

and supporting parties on the one hand and are critical to achieving

outcomes sought in the PRCEP the proposed objectives and policies for

Maori involvement on the other.

40. Elements of co governance will need to be put in place to initiate the two work

streams I have identified firstly to prepare a variation to the PRCEP and then

to carry out the work required to prepare spatial plans for a Plan Change

process to introduce them into an operative Plan.

10

716

Co-Management

41 . I note that Ms Noble considers that the PRCEP14 is not the appropriate place

to promote the transfer or delegation of RMA powers. I am not persuaded by

that view.

42. I agree that Method 178 as proposed· sets out the statutory provision and

would be a useful addition. It would also be helpful to know under what

circumstances transfer or delegation of powers would take place.

43. I would expect to see the PRCEP make a clear statement about the

mechanisms the PRCEP is providing for, ones that recognize and provide for

NMHT and other tangata whenua groups relationship with the coastal

environment in a more direct way.

CONCLUSION

44. I consider that in addition to the amendments proposed by the Council and

Ms Noble further necessary refinements are to:

a. Introduce spatial plans by 1st schedule RMA process for appellant and

supporting parties (accept that in the case of Motiti Natural

Environment Management Area a spatial plan can be introduced

through the appeal process and built on by 1st schedule process if

necessary at a later date).

This is required to achieve an efficient and effective means of

implementing relevant objectives and policies set out in Part 2 of the

RMA, the NZCPS, RPS and the PRCEP;

b. Incorporate ASCV 7A into the PRCEP;

c. · Complete two work streams: to incorporate mataurangi Maori

attributes and values into the assessment of natural heritage; and to

complete the identification of areas and site of cultural significance to

Maori and update ASCVs both to be part of the operative RCEP; and

14 Noble SOE para 106

11

717

d. Actively . engage with the appellant groups and their supporters in

establishing co governance protocols for the carrying out the two work

streams initially and to engage in preparing spatial plans within their

rohe and incorporating co-management provisions.

Graeme Lawrence

Planner

6 December 2016

Attachment

12

BEFORE THE ENVIRONMENT COURT AT AUCKLAND

IN THE MATTER: of the Resource Management Act 1991

AND

IN THE MATTER: of appeals pursuant to clause 14 of the First

Schedule to the Act

BETWEEN

AND

AND

NGATI MAKINO HEITAGE TRUST (ENV-2015-AKL-000140)

NGATI RANGINUI IWI INCORPORATED SOCIETY (ENV - 2015-AKL- 141)

Appellants

BAY OF PLENTY

REGIONAL COUNCIL

Respondent

VARIOUS Section 27 4 Parties

FIRST STATEMENT OF EVIDENCE by GRAEME LAWRENCE FOR THE TRUSTEES OF MOTITI ROHE MOANA TRUST

23rd December 2016

Counsel Acting Rob Enright

Barrister Level 1, Northern Steamship Building

122 Quay Street Britomart Auckland

e: [email protected] m: 021 276 5787

718

1. INTRODUCTION

1.1 . My name is Graeme James Lawrence. I hold a Bachelor of Social Sciences


Lawrence Cross Chapman & Co Ltd now based in Devonport and specializes

in providing environmental planning and resource management services to

public and priva_te clients in the upper North Island. My qualifications and

experience are outlined in my evidence in chief.1

1.2. For completeness, I repeat the confirmation given in my evidence in chief,

and confirm that I have read the Code of Conduct for expert witnesses

contained in the Court's Practice Note 2014 and agree to comply with the

Code. I also confirm that I have not omitted to consider material facts known

to me that might alter or detract from the opinions expressed in my evidence.

1.3 I have prepare~ this supplementary statement evidence on behalf of Motiti

Rohe Moana Trust (MRMT) following the decision of the Environment Court

on the application for declaration2•

1.4 At the time the decision was issued I had finalised reply evidence on the lwi

Resource Management Topic. My reply evidence was circulated on 6

December 2016 without any real opportunity to consider the Court's Decision

on the Declaration (the decision was released 5 December 2016) or to confer

with Counsel for MRMT.

2. SPATIAL PLANS

2.1 In evidence I have prepared for different topics on the Proposed Regional

Coastal Environment Plan I have focused on the need for spatial planning as

a means of providing integrated management within areas of interest to

tangata whenua to provide a more effective and efficient means of managing

effects where multi layered values come into play and especially to protect or

restore natural heritage and biodiversity values and at the same time provide

for cultural heritage and contemporary uses and activities.

1 Dated 5 October 201 6 2 Decision N. [2016] NZEnvC 240 dated 5 December 201 6

719

2.2 In my reply evidence3 on the lwi Resource Management topic I provided an

attachm~nt setting out additions to fit the architecture of the PRCEP; to

provide for spatial plans that may be introduced to address the points of

appeal seeking spatial plans; and to set . up a framework for introduction of

spatial plans by way of a 1st schedule process.

2.3 Earlier in the appeals hearing process I provided detailed Plan provisions

that would provide appropriate relief to the MRMT appeal. The provisions

were introduced to workshops and mediation and further refined to submit to

the parties and the Court in the Memorandum of Counsel for MRMT dated 1.

July 2016.4 That wording is attached to the _strike out decision.5

2.4 Since then I developed more generic provisions to provide a framework for

spatial planning for tangata whenua and Council to collaborate over, in

developing plans that I have called "Management Plans"6•

2.5 For MRMT, more detailed provisions are sought and proposed to put in place

a spatial plan for the Motiti Natural Environment (Management Area) and it is

my understanding these will come to Hearing following the Resource

Consent Decision on the MV Rena.

2.6 More focused and detailed provisions are necessary to address what Dr

Grace identified in his evidence7 for MRMT as "serious depletion of snapper

and crayfish through inappropriate fisheries management in the development

of kina barrens."

2. 7 I agree with Dr Grace that it would be appropriate in areas identified in spatial

plans for protection or r:estoration of marine biodiversity to apply RMA

methods (by use of activity status, to trigger resource consent requirements)

to prevent damage or removal of marine flora and fauna to enable

maintenance, restoration and protection of indigenous biodiversity and

ecosystems.

3 Graeme Lawrence Reply dated 6 December 2016 4 Ms Joanna Noble produced this as exhibit F to her evidence in chief on the Bay of Plenty Regional Collllcil's Application for Strike Out 5 The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2016] NZEnvC 190 6 Lawrence Reply Attachment 1 dated·6 December 2016 · 7 Dr Roger Grace SOE dated 9 November 2016 paras 18 and 19

720

2.8 Alternative methods may take the form of Marine Protected Areas or specific

biodiversity protection or closure to fisheries. These are methods that may

provide longer term or permanent solutions.

2.9 In other locations or circumstances spatial plan provisions may apply

appropriate thresholds of effects; manage particular fishing techniques or

methods; or control the rate or area of utiisation.

2.9 For the next 10 year cycle until the next review of the coastal plan, spatial

plans that manage the effects of activities including fishing along with

monitoring programmes to measure biodiversity and ecosystem health, can

be put in place in appropriate locations.

2.10 As a drafting note, I have not recommended an additional objective. Instead I

rely on Objective 2.1 (Integrated Management) Objective 1 (f) which states:

"Promoting the sustainable management of the Bay of Plenty coastal

fisheries"

2.11 I also rely on Objective 2.2 (Natural Heritage) Objective 4 which states:

"Enable the restoration and rehabilitation of the natural heritage of the

coastal environment, including .. "

Objective 2.2 cites two examples, but (may for example) also include taonga

indigenous flora and fauna species.

2.12 Objective 2.4 (lwi Resource Management) Objective 14 is also relied on when

it states:

''The protection of those taonga, sites, areas, features, resources or

attributes of the coastal environment (including Coastal Marine Area)

which are either of significance or special value to tangata whenua

(where these are known)."

Spatial Plans or Management Areas will identify areas of significance or

special value and a policy and rule framework to ensure appropriate levels of

protection and/or utilization are provided for and adverse effects avoided

remedied or mitigated.

721

2.13 I recommend an additional policy in Part Three to achieve integrated

management. For the purposes of this appeal topic, I have suggested topic

heading three (lwi Resource Management); alternatively a new heading

(Spatial Plans). This is because the new policy is not limited to s6(e) , s7(a)

and s8 RMA matters, and (by their nature) spatial plans will manage a range of

issues (such as natural heritage, water quality, iwi resource management, etc).

2.14 It is unnecessary (and not appropriate) to have additional methods because

they will be provided through the development of a particular Spatial Plan or

Management Area, that is appropriate to the specific location. Spatial Plans/

Management Areas are by definition a method to achieve the relevant

objectives and policies (both existing and proposed).

2.15 For the reasons set out above I have provided additional provisions for the

management of the environmental effects of fishing techniques and methods

within a spatial planning framework. These are set out in attachment 1.

2.16 I understand that any issues of scope are a legal issue. I note however that I

have drafted the provisions as architecture, to enable management of fishing

techniques and methods by way of future variation or plan change, except for

the Motiti Natural Environment Management Area to allow merits assessment

for Spatial Plan areas and Management Areas. Spatial planning involves

management of natural and cultural resources within identified areas. I Have

not prepared formal s32AA analysis at this stage but rely on the matters

identified by MRMT in its primary evidence.

2.17 My purpose in providing a framework for spatial plans within the PRCEP at this

stage is to enable the MRMT to pursue its appeal to introduce a spatial pan for

the Motiti · Natural Environment Management Area and at the same time

provide a framework for other tangata whenua groups to avoid the 'chicken

and egg' situation as to whether a generic framework is required before

embarking on a management plan for a specific location.

Graeme Lawrence

Planner

23 December 2016

722

ATT AC HM ENT 1

Under 1. Issues the significant RM issue(s) for Spatial Plans (Natural . Environment Management Area(s)) add: ·

1.1 Integrated Management insert new issue:

New Issue 5

A key contributor to degradation of indigenous marine biodiversity and habitat,

and the relationship of tangata whenua and their culture and traditions with

ancestral waters and taonga flora and fauna; is inadequate management of

fishing techniques and methods. In Spatial Plan areas or Management Areas it

may be appropriate to manage fishing techniques or methods to maintain

indigenous biological biodiversity, protect areas of significant indigenous

vegetation and significant habitats of indigenous fauna in the coastal marine

area, recognize and provide for the relationship of Maori and their culture and

traditions with ancestral waters and ta6nga, restore biodiversity and cumulative

effects,·or other purposes that do not infringe s30(2) RMA. The management

regime will be specific to each Spatial Plan or Managemef')t Area and requires

a separate 1st Schedule process.

Under Part Three (Policies) add a new policy under a new topic heading (7) (Spatial Plans, SP); alternatively (3) (lwi Resource Management, IW):

New Policy

In Spatial Plan or Management Areas, through a 1st Schedule 8 process:

(a) Identify locations where natural and cultural values are high, very high or outstanding; and where adverse effects of inappropriate fishing techniques or methods must be avoided;

(b) Identify locations where natural and cultural values may be adversely affected by inappropriate fishing techniques or methods; and avoid, remedy or mitigate those effects;

(c) Identify locations where degraded natural or cultural values require restoration, maintenance or protection from inappropriate fishing techniques and methods;

(d) Identify locations as receiving areas for offsetting or other forms of remediation or restoration to address cumulative impacts of inappropriate fishing techniques and methods.

723

Except in the case of Motiti Rohe Moana Trust and the proposed Natural Environment Management Area where a plan change or variation is not

required as this issue is being addressed in the 2017 appeal hearing.

724

1

ATTACHMENT 6:

MOTITI NATURAL ENVIRONMENT MANAGEMENT AREA

Background & Explanation:

Appeal by Motiti Rohemoana Trust Seeking Spatial Planning

Marine spatial planning applies traditional terrestrial planning techniques to the ocean.

A key component of terrestrial planning involves mapping to identify areas that contain attributes and values along with priorities for action and methods for management.

Mapping identifies characteristics, elements and resources and their values and attributes and delineation of areas to prioritise actions and provide management methods to achieve improved stewardship ofthose characteristics, elements and resources.

The type or form of a spatial plan will vary according to aspiration, need, location and space.

A marine spatial plan may apply to Coasts and Oceans at an International or National level; to an interregional and interagency area such as the Hauraki Gulf; to a region; or part of a region.

A "Marine Spatial Plan" (MSP) in t he context of the Bay of Plenty Region may be prepared in accordance with protocols developed between agencies or parties to provide a means for achieving agreement between agencies or parties on how conflicts would be resolved, efficiencies improved, costs reduced and quality environmental outcomes achieved, across various legislative and regulatory regimes, at a regional level.

In the context of a Coastal Plan a "marine spatial plan" (lower case) may be prepared in accordance with the provisions of the RMA.

It may apply to t he entire 'coastal environment'; to coastal marine area components of the coastal environment out to the 12 nautical mile area (le the CMA); or to a discrete part within the CMA of a region.

In this case the Motiti Rohe Moana Trust is seeking a "marine spatial plan" to apply to a specific area within the Coastc!I Marine Area, ident ified in the Bay of Plenty Regional Policy Statement (BOPRPS) as the "Motiti Natural Environment Area", to apply specific objectives, policies and rules to give effect to the RMA Part 2, NZCPS and BOP RPS to ensure natural character and natural landscapes and features (including biodiversity and ecological health) are restored so that the cultural values and the relationship of Maori with their ancestral lands, waters and taonga are recognised, provided for and actively protected.

The forms of the spatial plan currently applied in the BOP RCEP are:

• "zoning to recognise those areas where there is a high level of modification and where new uses and development may have relatively low impact"

• "Overlays are used to identijy different values of the coastal marine area and trigger the application of specific policies an.d rules designed to manage the potential adverse effects of activities ... 11

(see Proposed BOP RCEP Section 5 Plan Mechanisms - underlining mine).

Graeme Lawrence Statement of Evidence on Spatial Plans For Motiti Rohe Moana Trust F 25 October 2017

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2

ATTACHMENT 6:


MRMT seeks to create the planning architecture and (within that architecture} apply a spatial plan to

restore natural heritage values and protect areas of significant cultural value within the Motiti Rohe

Moana in an area identified as the Motiti Natural Environment Area in the BOP RPS.

The form of spatial plan proposed is a Management Area.

Management Areas are proposed as an appropriate method to achieve cultural, intrinsic or

biodiversity values recognising and providing for multi-layered values and the values and aspirations

of tangata whenua within an area identified for management.

The Motiti Natural Environment Management Area (MNEMA) is to be shown on the planning maps

of the proposed Coastal Plan.

Within MNEMA specific policies and rules, including sub management areas, are designed to

achieve restoration of natural heritage; protection of natural processes of restoration; and manage

effects of activities, particularly the taking, destruction or damage to natural values; to provide for

protection of natural heritage resources and their associated cultural values; and to provide for

public access, education and enjoyment of a self-sustaining natural environment, providing for and

preserving the mauri, tapu, man a and taonga of those having mana moan a over the rohe containing the Management Area.


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3

ATTACHMENT 6:


AMENDMENTS SOUGHT

Part One Purpose. content planning framework

Amend 5.Plan Mechanisms at 5.2 to provide for "Management Areas" as a plan mechanism by amending the heading and adding a new paragraph as follows:

"5.2 Zoning, a-HG Overlays and Management Areas

The plan utilises Management Areas to provide for restoration, protection, maintenance or enhancement where there are resources with a high level of significance as evidenced by multiple overlays within an identified area valued by tangata whenua.

Management areas identity how adverse effects within areas containing two or more overlays are to be managed in an integrated manner. One of the overlays will be an Area of Significant Cultural Value.

The Management Area will trigger specific policies and methods to:

(a) Achieve restoration of natural and cultural heritage; (b) Avoid adverse effects on natural and cultural heritage values of identified significance to

tangata whenua; (c) Protect, preserve or enhance the multiple overlay values; and (d) Provide for activities that will avoid, remedy or mitigate adverse effects on natural and

cultural heritage values once natural and cultural heritage values have been restored.

******** Part Two Issues and Objectives for the Coastal Environment

Add a new item 12 to the list of topic headings to provide for the Motiti Natural Environment Management Area as follows:

12. Motiti Natural Environment Management Area (MNEMA)

Under 1. Issues

At 1.1 Integrated Management

Add a new Issue 1B following Issue 1 identifying a lack of integrated management may increase adverse effects and limit the ability to restore degraded sites or coastal waters.

Issue 18 There is a need to identify areas where restoration of natural and cultural heritage is necessary in order to provide for the relationship of Maori with their ancestral lands, waters and taonga; and

to integrate the measures for restoration and protection of natural and cultural heritage in order to restore relationships of Maori with their ancestral land waters and taonga, actively protect taonga (biotic a biotic and perceptual), and to provide public access, education and enjoyment.


727

4

ATTACHMENT 6:


At 1.2 Natural Heritage

Add a new Issue 4A following Issue 4 identifying unsustainable fishing activity .as one of the reasons for loss of biodiversity values within the coastal environment as follows:

Issue 4A

At 1.12

A key contributor to degradation of indigenous marine biodiversity and habitat, and the relationship of tangata whenua have with natural and cultural heritage, is inadequate management of fishing techniques and methods. Management Areas have been introduced to. manage activities to enable the mauri of indigenous biological biodiversity and marine ecosystems to be restored. Invasive activities including dredging and fishing techniques or methods need to be managed .in specific areas to enable indigenous vegetation and habitats of indigenous fauna to restore naturally, to recognise, provide for and actively· protect the relationship Maori have with their ancestral land, waters and taonga. The management regime will be specific to a Management Area. Additional management areas may be introduced in a Plan Change or Variation by way of 1st Schedule RMA process.

Add three new issues following 1.10 & 1.11 setting out the issues relating to the marine spatial areas identified as "Harbour Development Zone" and "Port Zone" as follows:

1.12 Motiti Natural Environment Management Area

Issue 53 Motiti Island is the only continuously occupied offshore island in the region. It is the most developed of all offshore islands. Tangata wheriua !:lave a lengthy history of traditional and continuing cultural relationships with the coastal environment of the Motiti Natural Environment Management Area where tangata whenua have liveq and fished for generations. Motiti is physically and spiritually linked to Te Tau O Taiti (Otaiti) as well as toka, reefs and other features identified in the Motiti Natural Environment Management Area. Otaiti is both anchor (haika) and umbilical cord (pito) for Motiti Island (Topito o te Ao).

WaahiTapu

The Motiti Hapu Management Plan identified waahi tapu within Motitl Rohe Moana. Several but not all of these have been listed in the schedule for ASCV -25. The waahi tapu areas and buffers required to protect their intrinsic and cultural values and attributes are now mapped.

Management of the waahi tapu area is required to restore and protect natural and cultural heritage values, the relationship of Maori with their land waters and taonga, active protection of taonga, and to provide for public access for education and enjoyment of natural and cultural heritage

The restoration, protection and enhancement of natural and cultural heritage, through management of any activities, that would damage destroy or remove indigenous flora or fauna, or harm the mauri, tapu or mana of the area, has the


728

5

ATTACHMENT 6_:


potential to not only sustain natural and cultural heritage values, but to also generate significant social, cultural and economic benefits for the wider region .

Waahi Taonga

Waahi taonga areas are identified and described in the Motiti Hapu Management Plan and several but not all the sites values and attributes are referred to in the schedule for ASCV 25. The waahi taonga areas are outside those aareas mapped as waahi tapu and their spatial extent covers the entire Motiti Natural Environment Area identified as having High or Outstanding Natural Character in the RPS.

Restoration of natural heritage is required to reinstate the natural and cultural values and attributes of the area. Activities that enable the restored natural and cultural heritage state to remain self-sustaining are provided for.

*************

Under 2 Objectives

Add new objectives for the Motiti Natural Environment Management Area under a new Section 2.11 as follows:

2.11 Motiti Natural Environment Area (see Part Seven Map Series 43 and 44 and new Map attached)

Objective 50 Natural and cultural ,heritage values fully restored and characteristics that are of special value to the tangata whenua of Motiti protected including:

(a) Mauri o te wai; and

(b) Biological biodiversity and ecological health;

(c) Kaimoana resources; and

(d) Landforms and features;

(e) Waahi Tapu and Waahi Taonga;

(f) Taonga including Te Tau o Taiti;

(g) Intrinsic and spiritual values associated with (a)-(f).

Objective 51 Ongoing and enduring relationship of the tangata whenua of Motiti with the coastal environment of MNEMA recognised and provided for through restoration and protection of Waahi Tapu and Waahi Taonga in order to sustainably manage the multiple values that exist within the Motiti Natural Environment Management Area (MNEMA).


729

6

ATTACHMENT 6:


Objective 52 The principles of the Treaty of Waitangi and kaitiakitanga, taken into account by avoiding adverse effects of activities on natural and cultural heritage values of the Motiti Natural Environment Management Area and actively protecting the. taonga of Motiti.

Part Four Activity Based policies and rules

Add a new item 12 to the list of topic headings to provide for the Motiti Natural Environment Management Area activities as follows:

12.2 Rules

1. The Rules in the other sections shall apply to MNEMA except where inconsistent with the following rules. Where there is doubt the following shall prevail.

Rule MNEMA 1

RuleMNEMA2

Rule MNEMA3

Permitted

Monitoring equipment or taking samples for the purpose of monitoring (including compliance monitoring or mauri monitoring).

Controlled

Motiti Marae-based aquaculture located within the Waahi Taonga Area and subject to Rule AQ 2.

[Drafting note: matters of control to be added]

Restricted Discretionary

Within the Waahi Taonga Area, the taking or removal of indigenous flora or fauna provided that:

a. The removal or take does not involve dredging or seabed trawling; and

b. The methods used do not disturb foreshore or seabed; and

c. A spatial survey is provided by a suitably qualified person that.the waahi taonga area contains less than 10% of shallow reef classified as sea urchin preferred habitat.area occupied by sea urchin (known as a kina barren count).

The kina barren level must be confirmed by at least two surveys undertaken sequentially with a 3-month gap.

Discretion is restricted to the following matters:

[Drafting note: to be added later]


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7

ATTACHMENT 6:


Rule MNEMA4 Discretionary Activity

Within the Waahi Taonga Area, the taking or removal of indigenous flora or fauna that does not meet MNEMA Rule 3 above is a discretionary activity.

Rule MNEMA5 Prohibited Activity

Part Five

Within the Waahl Tapu Area the following activities within the Waahi Tapu Area: ·

a. Taking, removal, damage or destruction of indigenous flora or fauna.

b. Structures, Occupation (whether temporary or permanent);

c. Discharge or dumping of any waste, material (organic or inorganic), rubbish or garbage.

are a prphibited activity

Methods

Add Consequential Amendments

Part Six

Update Schedule 6 ASCV.

Add a new Schedule 6A to identify the attributes values and tangata whenua aspirations to include the following:

A. The cultural landscape extends from the sea floor to the ocean surface and is integrated with land within the Motiti Natural Environment Area.

B. Taonga species include [taken from the RPS Appendix J]: • Hapuku; • Tamure (snapper); • Kahawai; • Maomao • Tarakihi; • Maki • Araara (trevally) • Parore; • Haku (yellow-tail Kingfish) • Aturere (tuna) • Kuparu (John Dory) • Kumukumu (gurnard) • Patikirori (sole)


731

8

ATTACHMENT 6:


• Mango (sharks) • Wheke (octopus) • Koura (crayfish) • Paua {abalone) • Kuku (mussels) • Tipa (scallops) • Tio (oysters) • Kina (urchins) • Rori (sea cucumbers) • Karengo (seaweeds) • Rimurimu (eklonia or brown kelp)

C. Schedule 2 - Indigenous Biological Diversity Area:

• IBDA A75 Motiti Island • IBDAA76 Astrolabe Reef • IBDA A77 Motunau {land) • IBDA A 78 Motunau (marine area) • IBDA A79 Motuputa Island • IBDA 8132 Motiti Islets

D. Schedule 3 - Outstanding Natural F:eatures and Landscapes

• ONFL 44 Motiti Island margin and associated islands, reefs and shoals

E. Schedule 5 - Regionally Significant Surf Breaks

• 12 Motiti Island (east side)

F Schedule 6 - Areas of Significant Cultural Value

• ASCV 25 Motiti Island and associated islands, reefs and shoals

The Natural Heritage (NH), lwi Resource Management (IW) and Recreation, public access and open space (RA) polices contained in Part 3 contain additional policy direction on managing effects on A- E above

Part Seven

Provide additional maps and !=lmendments to the existing suite of maps 43 and 44:

• to identify and provide for the Motiti Natural Environment Management Area based on the RPS Appendix I Map 21a and

• to show Waahi Tapu Area within MNEMA • to show Waahi Toanga Area within MNEMA .

Graeme Lawrence Statem·ent of Evidence on Spatial Plans For Motiti Rohe Moana Trust F 25 October 2017

732

Waahi Tapu and Waahi Taonga

.,- ' 1 Waahi tapu - 1 nautical mile r,adil!ls

... : ~ Te Tau o Taiti - 3 nawtioal mile r,adi•ws . . •••

- wa·ahi tac,mga - Motiti Natural Environmemt ManagementArea (MNEMA)

:.

Do nothing

Relevance Does not address the

Natural Heritage Issue 4:

loss of biodiversity.

No policies or methods to

give effect to Integrated

Management Objective 1.

Does not address sB RMA

(protection of taonga,

- especially if vulnerable)

and does not give effect to

relevant NZCPS or RPS

provisions.

Usefulness Not useful in addressing

degradation of biodiversity

by fishing activities or

restoring mauri or tangata /

whenua relationship with

highly valued resources,

Statement of Evidence of Graeme James Lawrence For Motiti Rohe Moana Trust 25 October 2017

-

ATTACHMENT 8: RMA s32AA Evaluation

BOP Regional Council MRMT Motiti Natural

Option Environment Management

Area

Identifies issue and provides an addition to Provides new NH Issue to

RM Natural Heritage Objective identify cluster of issues that

New Integrated Resource Management need to be managed together

Policies (IR) IR 1 not relevant IR 2 provides within clearly identified

for other spatial mechanisms. location(s)

Additional objective adds little, provides no Adds a new spatial plan with

context. suite of provisions

New lwi Resource management Policy 1 AA complementing the zone

provides direction for the MNE and sets up technique with a management

provisions in a schedule. area to conserve remaining

Does not address s8 RMA (protection of natural and cultural resources

taonga, especially if vulnerable) and does and provide for their restoration

not give effect to relevant NZCPS or RPS and protection with area to be

provisions. available for fishing by consent.

Adds objective 4(c) for restoration of natural Objectives and provides tools in

heritage on degraded cultural sites Tangata the form of policy and rules to

whenua wish to restore for natural heritage achieve restoration of areas

and cultural re§_s.ons but has no context or impacted by fishing activities

circumstance. until an identified area has

Policy for IR2 usefully mentions spatial recovered to a point where

natural state and places.

Reasonable & No policies or rules to give

Achievable effect to objectives to

ensure sustainability of

resources from effects of

fishing activities

Statement of Evidence of Graeme James Lawrence For Motiti Rohe Moana Trust 25 October 201 7


mechanisms. fishing may be consented .

Policy addition at 1AA, sets up recognition Provides location and context

of MNE, adds a range of natural and and indicator for state of

cultural considerations. environment monitoring

New Method 19AA contemplates a future Includes a trigger threshold for

plan change to introduce a spatial plan for consideration of fishing

the CMA. This does not provide actions to activities outside areas

address issues currently facing MNE identified for lasting protection.

through biodiversity depletion and adverse

effects of fishing on areas of high natural

and significant cultural value.

Does not address s8 RMA (protection of

taonga, especially if vulnerable) and does

not give effect to relevant NZCPS or RPS

provisions.

Objectives add clarity to outcomes sought The MNEMA identifies areas of

but are unachievable with policies proposed high natural and cultural value

and· absence of rules. Policies do not for restoration, manage fishing

prioritise areas or circumstances for wide activities in areas identified for

public benefit or identify locations or lasting protection and provide a

circumstances for r~storation of mauri and means to gain consent in

biodiversity. identified areas when a

They do not manage the effects of fishing measurable ecological state

Benefits Fishing activities continue

without benefit

Costs/Risks Costs associated with loss

of cultural , intrinsic and

ecosystem values; risk of

further degradation and

loss of ecosystem

biodiversity.



activities; do not achieve the degrees of has been achieved. !

protection required to restore biodiversity

and do not achieve the objective(s).

Reasonable additions that will not manage

effects of fishing activities on biodiversity or

ONC or IBDA or on waahi tapu and waahi

. taonga areas.

Policy applies to resource consents. No More focus and certainty,

benefit unless a resource consent is provides full protection (unless

triggered or by way of prohibited status is modified by plan change) for

prevented. Does not provide rules required most highly valued and at risk

to manage effects and does not establish a areas and threshold for

threshold for ecological sustainability or a measure of sustainability and

the trigger for consenting fishing activities trigger for consents elsewhere

in MNEMA

No management of effects of natural and Makes use of the plan review

cultural values from fishing , additional process to address a critical

provisions at a cost without resolving the RM issue within the MNE for

issue or contributing to the management of biodiversity and ecological

effects of fishing on the environment. systems as well as the _cu ltural

Similar outcome to do nothing at additional values of tangata whenua.

cost. The costs have been sunk.

A 1st schedule process is unaffordable for

Efficiency Would not achieve

objectives but would avoid

time and costs of

monitoring and

management.

Effectiveness No - would result in further

degradation and loss of

biodiversity,



tangata whenua.

A 1st schedule process is not efficient use of A spatial plan identifies discrete

the appeal process with the information areas within the MNE for

available and the on going depletion of protection from the effects of all

biodiversity within the region. fishing activities and provides

Proposed new Schedule 6A does not for areas where non invasive

address the issue or the objective of fishing activities are able to be

managing the effects of fishing activities. introduced by consent when

conditions recover to a

measurable degree.

Without more directive policies and rules Provides focused issues and

the changes proposed will not achieve the objectives for the MNE with its

plan objectives or manage the effects of multilayer overlays and policies

fishing activities on indigenous biodiversity. and rules to achieve restoration

of biodiversity, mauri, and

measure of ecological health

with means of managing future

non invasive fishing activities.

_, c,:, _,

617 - environmentcourt.govt.nz · a. affidavit of evidence (16 august 2016) in respect to the...

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