IN THE MATTER OF of the Resource Management Act 1991

Transcription

1 2517 BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO AOTEAROA ENV-2018-AKL IN THE MATTER OF of the Resource Management Act 1991 AND IN THE MATTER OF of direct referral of applications for resource consent for the necessary infrastructure and related activities associated with holding the America s Cup in Auckland BETWEEN PANUKU DEVELOPMENT AUCKLAND Applicant AND AUCKLAND COUNCIL Regulatory Authority STATEMENT OF EVIDENCE BY LUKE CHRISTOPHER JAMES FAITHFULL ON BEHALF OF MANA WHENUA IN OPPOSITION 28 AUGUST 2018

2 INTRODUCTION 1.1. My name is Luke Christopher James Faithfull I hold a Bachelors degree in Geography and Environmental Science from the University of Auckland I have practiced in the field of resource management for the past 11 years and am currently employed as an Associate by Mitchell Daysh Limited, an environmental consultancy practice with offices in Auckland, Hamilton, Tauranga, Taupo, Napier, Wellington and Dunedin, which was established in October Previously, I was a Senior Consultant at Mitchell Partnerships Limited and was a Senior Consents Officer at both the Greater Wellington and Bay of Plenty Regional Councils My primary areas of work are the preparation and assessment of resource consent applications under the Resource Management Act 1991 (RMA) and the preparation of marine consent applications under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act). This work includes providing strategic resource management advice and the preparation of due diligence reports, environmental effects assessments, consent conditions, and planning evidence to a wide range of public and private sector clients I have previously been engaged by the Environmental Protection Authority to provide expert planning advice on marine consent applications under the EEZ Act I confirm that I have read the Code of Conduct for Expert Witnesses contained in the 1 December 2014 Environment Court Practice Note. I agree to comply with this Code. This evidence is within my area of expertise, except where I state that I am relying upon the specified evidence of another person. I have not omitted to consider material facts known to me that might alter or detract from the opinions that I express. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 1 of 31

3 INVOLVEMENT IN THE PROCESS 2.1. Mitchell Daysh Limited was engaged in January 2018 by Panuku Development Auckland (Panuku or the Applicant) on behalf of mana whenua represented in the Panuku Mana Whenua Governance Forum. The purpose of the engagement was to provide technical planning advice to mana whenua on the various Panuku projects within the City Centre Masterplan and Waterfront Master Plan areas of which the America s Cup event and associated activities (the Project) is one I have attended the post - lodgment workshops that Panuku has held for mana whenua on the application and I also assisted in drafting the submission template which was used by some mana whenua who made submissions on the Project My engagement has continued following the close of submissions for the mana whenua identified below (mana whenua in opposition): Ngaati Whanaunga Incorporated Society; Ngāi Tai ki Tāmaki Tribal Trust; Ngāti Maru Rūnanga Trust; Ngāti Tamaoho Trust; Ngāti Tamaterā; Ngāti Te Ata Claims Support Whanau; Te Ākitai Waiohua Waka Taua Inc; and Te Patukirikiri Iwi Trust I attended the three Environment Court facilitated mediation sessions held on the 19 th, 20 th and 30 th July 2018, and the two Joint Witness Conferencing (Planning) sessions held on the 27 th and 31 st July I have prepared this statement of evidence at the request of mana whenua in opposition. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 2 of 31

4 In preparing my evidence I have reviewed the cultural evidence prepared by the representatives of mana whenua in opposition and the following with a focus on planning and statutory matters as they relate to mana whenua matters: The Project Application and supporting technical information; The Joint Witness Statements of the various technical experts; The Applicant s evidence briefs; and The updated Proposed Conditions of Consent dated 7 August PURPOSE AND SCOPE OF EVIDENCE 3.1. In my evidence I will: Provide an overview of the statutory framework that applies to mana whenua and cultural values / interests, and discuss how I consider this influences the Proposed Conditions; Discuss the remaining matters in contention as they relate to the mana whenua in opposition, including the Proposed Conditions and any amendments I consider appropriate; and Provide a conclusion Mana whenua in opposition s cultural associations with Freemans Bay, including the Hobson, Halsey and Wynyard Wharves (the Project Area), and the wider Waitematā have been described in the cultural evidence of the mana whenua representatives. I have not repeated this here. 4. STATUTORY FRAMEWORK 4.1. The relevant statutory documents insofar as they relate to mana whenua issues have been identified in paragraph 4.10 of the planning evidence of Mr Vijay Lala and Mr Karl Cook on behalf of Panuku. I agree that the statutory documents are those which apply. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 3 of 31

5 My evidence focuses on the provisions of the Auckland Unitary Plan Operative in Part 17 November 2018 (AUP), comprising the Regional Policy Statement (RPS), and the regional and district plans. Those of particular relevance to the mana whenua matters have been provided full in Attachment 1 to my evidence and are summarised below The statutory framework identifies the process, directives and outcomes that are relevant when making a resource consent application for any activity within the Auckland region. The mana whenua provisions under the AUP relate to cultural engagement and how mana whenua matters are to be addressed in the decision-making process. The cultural evidence on behalf of mana whenua in opposition addresses their concerns on the engagement process. My comments are focused on the outcomes the statutory documents seek to achieve In my opinion, the key mana whenua provisions in the RPS are: The need to provide for active participation and appropriate recognition of the role of mana whenua in the consent process as being the appropriate party to convey their relationship Policy B.6.2.2(1)(a), (e), (h) and Policy B6.3.2(2) and (4); The role of mana whenua as kaitiaki should be appropriately recognised and provided for, enabling mana whenua to effectively implement kaitiakitanga over its land and waters Policy B6.2.2(1)(a); Provision for timely, effective and meaningful engagement Policy B6.2.2(1)(c); Acknowledge the historical circumstances that are present and the impacts on resources - Policy B6.2.2(1)(f); Provide mana whenua with the opportunity to identify cultural values (tangible and intangible) and identify how any such values should be recognised, protected and enhanced Policy B6.3.2(1) and Objective B6.5.1(1); Evidence of Luke Christopher James Faithfull 28 August 2018 Page 4 of 31

6 The need that resource management decisions need to have particular regard to impacts on cultural values and interests Policy B6.3.2(6); The need for any application to appropriately assess adverse cultural effects Policy B6.3.2(3); Enable mana whenua to be involved in the management of natural and physical resources in a manner that recognises that Maori world view and enhances the mauri of an environment Policy B6.3.2(4); That mana whenua values are appropriately reflected and given appropriate weighting in resource consent decision making and that any decision had particular regard to the impacts on the holistic nature of the Maori world view, the exercise of kaitiakitanga and mauri Objective B6.3.1(1) and Policy B6.3.2(6); and Ensure that the relationship of mana whenua with their cultural heritage has been provided for Objective B6.5.1(2) The relevant provisions under the regional and district plan sections of the AUP as they relate to activities for which consent is sought include: Land disturbance activities should be managed in a way that maintains mana whenua values of both the land and water Policy E11.3(3)(d) and Policy E12.3(2)(c); Mana whenua values should not be adversely impacted by inappropriate activities within the coastal environment Objective F2.2.2(3) and Objective F2.3.2(4); Where coastal activities have long-term effects on mana whenua values, these effects need to be avoided, remedied or mitigated Objective F2.5.2(2); Evidence of Luke Christopher James Faithfull 28 August 2018 Page 5 of 31

7 Disturbance of the seabed and foreshore shall be limited to the extent practicable and undertaken in a manner that avoids, remedies or mitigates any impacts on cultural values - Policy F2.5.3(4)(f); Where infrastructure is to be located within the coastal area that its use and occupation avoids, remedies or mitigates any adverse effect on mana whenua values - Policy F2.14.3(5)(h); and Structures within the coastal area are provided for in a manner which minimise any adverse effects on mana whenua values Objective F2.16.2(3) In terms of the cultural effects, the submissions and cultural evidence of mana whenua in opposition indicate to me that: The Waitematā (which includes the Project Area) is of significant cultural value, both tangible and intangible, and that the Project will adversely affect these values; The progressive development of the Waitematā has significantly eroded the cultural values and interests associated with the coastal area and this degradation (cumulative cultural effect) has never been appropriately acknowledged or adequately mitigated; The mauri of the Waitematā has been significantly degraded by extensive historical reclamations and port developments and any further modification are considered by mana whenua to have a significant adverse effect on the mauri of the Waitematā; Despite the continuous Pākehā development that has altered the coastal landscape, the coastal area (including the Project Area) still holds significant value to mana whenua; and The Applicant s cumulative effects considerations focuses largely on the physical effects of the Project and fails to Evidence of Luke Christopher James Faithfull 28 August 2018 Page 6 of 31

8 2524 consider in any meaningful way the intangible effects which are significant to mana whenua My opinion is that the best approach to manage the Project s impacts on mana whenua values is through the provision of robust, mana whenua focused consent conditions Further to the above, in drafting my evidence I have taken the approach that an absence of physical effects does not necessarily equate to a lack of cultural effects and that cultural effects, which include intangible effects, need to be appropriately addressed through the provision of targeted consent conditions 1. Section 104D 4.9. The overall activity status of the Application is non-complying, meaning that it must satisfy one of s104d gateway tests namely: a) That the adverse effects will be minor (s104d(1)(a)); or b) The activity is not contrary to the objectives and policies of the relevant planning documents (s104d(1)(b)) The planning evidence of Mr Vijay Lala and Mr Karl Cook on behalf of Panuku 2 has concluded that the proposal meets both limbs of the s104d test. Based on the cultural evidence of mana whenua in opposition, I am not convinced that either limb is satisfied in respect of mana whenua issues because: a) The cultural effects of the proposal have not been adequately identified or mitigated to a point where they can be said to be minor; and 1 Tuwharetoa Maori Trust Board v Waikato Regional Council, NZEnvC 093 [2018], Paragraph 120 and Evidence of Vijay Nagen Lala and Karl Peter Cook on Behalf of Panuku Development Auckland (Planning) 7 August 2018, paragraph Evidence of Luke Christopher James Faithfull 28 August 2018 Page 7 of 31

9 2525 b) The proposal is contrary to the mana whenua related objectives and policies of the AUP in that effects on mana whenua values have not been adequately avoided, remedied or mitigated Nevertheless, I consider that the proposal can meet both of the s104d gateway tests with the inclusion of appropriate consent conditions. The Proposed Conditions proposed do not go far enough. Proposed Conditions Framework Overall, in my opinion, the Proposed Conditions provide a reasonable framework for addressing mana whenua matters. However, the conditions require further refinement, as set out below. 5. RECOMMENDED AMENDMENTS TO CONDITIONS 5.1. Paragraph of the evidence of Mr Lala and Mr Cook identifies the following matters as those which are still in contention with mana whenua in opposition: a) Oppose the use of the existing Auckland Council forum and request a separate forum for this application; b) In evidence exchange on 21 August 2018, mana whenua opposed to the application will be able to advise whether any changes to conditions 5 to 5F are required if something arises from the CVA under preparation; and c) That a review condition be included to require the Council to review any conditions of this consent to reflect any changes that may arise from any declaration of customary title over coastal areas as a result of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACAA) process I agree that these are the matters still in contention and discuss them further below. Use of the Existing Auckland Council Forum 5.3. The Proposed Conditions which were included with the Application did not provide a mechanism through which the requirements of the then titled Mana Whenua Engagement Plan would be enacted Following mana whenua mediation on 20 July 2018, Panuku provided an updated set of Proposed Conditions (dated 26 July 2018) which included a condition (proposed Condition 5) providing for the establishment of a Evidence of Luke Christopher James Faithfull 28 August 2018 Page 8 of 31

10 2526 mana whenua forum that would work with Panuku to prepare the engagement plan and assist in fulfilling the requirements of that plan. Condition 5, as proposed by Panuku, reads as follows: Condition 5 Within 20 days of the Commencement of Consent or prior, the consent holder shall invite the existing Panuku Mana Whenua Kaitiaki Forum (PMWKF) to: a) Assist the consent holder in the preparation of a Mana Whenua Engagement Plan (Conditions 5A-5F) consistent with relevant customary practices and in accordance with the principles of the Treaty of Waitangi (Te Tiriti o Waitangi), especially the principles of consultation, active participation and partnership; and b) Fulfil the obligations set out in the Mana Whenua Engagement Plan on behalf of mana whenua. The consent holder shall facilitate and fund the additional resourcing of the PMWKF and meet all fair and reasonable costs associated with any work streams required for the PMWKF to fulfil its role. Advice note: The Consent Holder records its commitment to implementing this condition My understanding is that mana whenua in opposition do not support the use of the existing Panuku Mana Whenua Kaitiaki Forum and consider that a specific forum should be established for the Project Legal counsel for mana whenua in opposition provided an amended version of proposed Condition 5 on a without prejudice basis on 1 August 2018 which provided for: a) The use of a specific forum for the Project; b) The need for a new name for the forum (yet to be determined); and c) Additional wording to describe the whakapapa of the principles of Te Tiriti o Waitangi In the Proposed Conditions, provided as Attachment 1 to the evidence of Mr Lala and Mr Cook, Condition 5 has adopted some of the 1 August 2018 amendments including the provision of an advice note on the whakapapa of Te Tiriti o Waitangi and the change to the name of the engagement plan to America s Cup Mana Whenua Engagement Plan (the Engagement Plan). However, the use of the existing Panuku Mana Whenua Kaitiaki Forum was retained. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 9 of 31

11 The evidence of Ms Fiona Knox on behalf of Panuku 3 justifies this approach and states [emphasis added]: 6.7 Panuku is proposing a condition (Condition 5) that the existing Auckland Council Mana Whenua Kaitiaki Forum assist Panuku to prepare an America s Cup Kaitiaki Engagement Plan and to fulfil the obligations set out in the America s Cup Kaitiaki Engagement Plan on behalf of mana whenua. 6.8 This Forum is an inclusive body that extends the invitation to all 19 iwi. The Forum has an express purpose to support Mana Whenua entities to give effect to their responsibilities as Kaitiaki in an efficient and effective manner with a focus on significant issues and opportunities affective people in Tamaki Makarau. Panuku considers the Forum to be an appropriate body to assist Panuku to prepare the America s Cup Kaitiaki Engagement Plan I understand that mana whenua in opposition do not accept this position and they consider that the iwi and hapū identified in section 9 of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (the Collective Act) are those which should form the Project s forum. This position is supported by the clear wording in the Ngā Mana Whenua o Tāmaki Makaurau Collective Deed about the significance of the Waitematā to the mana whenua identified in the Collective Act: 10.1 Ngā Mana Whenua o Tāmaki Makaurau and the Crown acknowledge and agree that the Waitematā and Manukau harbours are of extremely high spiritual, ancestral, cultural, customary and historical importance to Nga Mana Whenua o Tamaki Makaurau and this deed does not (a) (b) provide for cultural redress in relation to those harbours, as that is to be developed in separate negotiations between the Crown and Ngā Mana Whenua o Tāmaki Makaurau; nor prevent the development of cultural redress in relation to these harbours in those negotiations I note that the AUP identifies: a) The need to recognise the role of mana whenua as kaitiaki (Policy B6.2.2(1)(a)); b) That mana whenua are specialist in tikanga and are best placed to convey their relationships (Policy B6.2.2(1)(e)); and 3 Evidence of Fiona Knox on behalf of Panuku Development Auckland (Corporate Options Analysis and Engagement) 7 August 2018, paragraph Evidence of Luke Christopher James Faithfull 28 August 2018 Page 10 of 31

12 2528 c) The role and right of mana whenua to speak on their behalf for matters that affect them (Policy B6.2.2(1)(h)) Therefore, I support a specific mana whenua forum consisting of iwi and hapū as per the Collective Act being established for the Project. With regard to the naming of the forum, it is my opinion that this should fall to mana whenua parties who choose to participate in the forum I consider that further amendments to Condition 5 are also required to improve the effectiveness of the condition as follows (additions underlined and deletions struck through): Condition 5 a) Prior to the Commencement of Consent, the consent holder shall invite the existing Auckland Council Mana Whenua Kaitiaki Forum (ACMWKF) to:, in partnership with members of Ngā Mana Whenua o Tāmaki Makaurau who choose to participate, establish the [name to be confirmed by parties]. b) The [name to be confirmed by parties] will comprise: (i) (ii) Two members appointed by the consent holder; and One member from each of Ngā Mana Whenua o Tāmaki Makaurau parties. c) The purpose of the [name to be confirmed by parties] is to A assist the consent holder in the preparation of an America s Cup Kaitiaki Engagement Plan (ACKEP) (Conditions 5A-5F) consistent with relevant customary practices and in accordance with the principles of the Treaty of Waitangi (Te Tiriti o Waitangi), especially the principles of consultation, active participation and partnership; and d) The consent holder shall facilitate and fund the resourcing of the [name to be confirmed by parties] and meet all fair and reasonable costs associated with any work streams required for the [name to be confirmed by parties] to fulfil its role. Fulfil the obligations set out in the America s Cup Kaitiaki Engagement Plan on behalf of mana whenua. The consent holder shall facilitate and fund the additional resourcing of the ACMWKF to meet all its fair and reasonable costs associated with any work streams required for the ACMWKF to fulfil its role in respect of this condition. Advice Note 1: It is acknowledged that Te Tiriti o Waitangi/The Treaty of Waitangi underpins the relationship between Ngā Mana Whenua o Tāmaki Makaurau and the Crown. Inherent in this are (amongst other things) the principles of partnership, reciprocity, active protection and equity. Importantly, the principle of partnership is endorsed by the concept of good faith. Those principles are acknowledged in the Local Government Act Advice Note 2: The Consent Holder acknowledges that the Waitematā is of extremely high spiritual, ancestral, cultural, customary and historical importance to Ngā Mana Whenua o Tāmaki Makaurau. In accordance with the principles of Te Tiriti o Waitangi/The Treaty of Waitangi, the Consent Holder must recognise that significance in all aspects of this Project. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 11 of 31

13 2529 Advice Note 3: The Consent Holder records its commitment to implementing this condition in good faith, and to using the services of an independent mediator, as necessary. Advice Note 4: For the purpose of this consent, the parties of Ngā Mana Whenua o Tāmaki Makaurau are those 13 iwi and hapū groups identified in section 9 of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act As the above condition (proposed Condition5(a)) requires action by a third party, i.e. mana whenua, the condition would need to be offered by Panuku under the Augier 4 principle While Panuku may be opposed to this approach for technical compliance reasons, I consider that accepting the condition in this format would demonstrate the Applicant s commitment to include mana whenua (both in support and opposition) in a meaningful way and as partners in the Project. In my opinion, this approach would assist in addressing some of mana whenua in opposition s concerns regarding provision for ongoing and meaningful involvement in the Project. Conditions 5 to 5F Mana Whenua Engagement Plan As a result of mediation and joint witness conferencing outcomes, proposed Conditions 5A 5F have changed significantly from those which was originally proposed as Condition 22 in the Application I generally support the changes to the conditions, as summarised in the evidence of Mr Lala and Mr Cook 5, as the conditions now define an explicit purpose for the Engagement Plan, as well as provide a specific set of objectives, minimum requirements and outcomes that are to be achieved. However, I note that mana whenua in opposition had always reserved their position on the Conditions The cultural evidence of mana whenua in opposition reiterates the significance of the Waitematā, which includes the Project Area, to mana 4 The Augier principle (derived from the case Augier v Secretary of State for the Environment (1978) 38 P & CR 219) provides that, if an otherwise ultra vires (not legal) condition is volunteered by a resource consent applicant and a consent is granted with that condition, then that condition is enforceable. 5 Evidence of Vijay Nagen Lala and Karl Peter Cook on Behalf of Panuku Development Auckland (Planning) 7 August 2018, paragraph Evidence of Luke Christopher James Faithfull 28 August 2018 Page 12 of 31

14 2530 whenua, and identifies the actual and potential effects of the Project on mana whenua values and interest. These matters have not been repeated here for sake of duplication When considering the above matters, and noting my previous amendments in paragraph 5.11, I consider that Condition 5A 5F should be amended as follows (additions underlined and deletions struck through): 5A. The consent holder shall prepare an America s Cup Kaitiaki Engagement Plan (ACKEP) for the Project in partnership with the assistance of the [name to be confirmed by parties] ACMWKF. Within ten (10) working days of the Commencement of Consent or prior, the consent holder shall provide a copy of the ACKEP to the Team Leader Compliance Monitoring Central. 5B. The purpose of the ACKEP is to assist the consent holder in fulfilling its obligations in engaging with Mana Whenua and assist mana whenua to express tikanga, fulfil their role as kaitiaki, and establish the engagement process before, during and after the completion of construction activities for implementation throughout the project. It shall be formulated through: a) Providing the framework for a collaborative approach between the consent holder and mana whenua to address the matters which impact cultural values / interest, before, during and after the completion of the construction activities; and b) Identifying how the consent holder and the [name to be confirmed by parties] ACMWKF will ensure that effective relationships are provided for throughout the Event. 5C. The objectives of the ACKEP are to: a) Acknowledge the cultural and spiritual importance of the Waitemata and its surrounds to mana whenua; b) Acknowledge mana whenua as kaitiaki; c) Recognise the importance of engagement and identification of key mana whenua values, areas of interest and matters concern in relation to the Project; d) Provide for mana whenua with an opportunity to be actively involved with the formulation and implementation of the ACKEP; and e) Facilitate engagement between the consent holder and mana whenua in relation to the activities authorised by this consent, and to assist enable mana whenua to fulfil their role as kaitiaki. 5D. As a minimum, the ACKEP shall include details of the following matters: a) How the [name to be confirmed by parties] mana whenua who have historic associations with the Project area and its surrounding waters have been involved in the formulation of the ACKEP and are to be involved in its implementation; b) The process for involvement of the [name to be confirmed by parties] ACMWKF mana whenua in the preparation and implementation of the engineering design, construction management, and operational plans as they relate to: Evidence of Luke Christopher James Faithfull 28 August 2018 Page 13 of 31

15 2531 i. Managing water quality during the construction and operation of the Infrastructure; ii. iii. iv. Managing underwater noise during construction so as to protect marine animals; Protecting the waters of the area from biosecurity risks; Managing the Project effects to minimise adverse effects on the mauri and mana of the Waitematā, and areas of tapu and tapu practices within the Waitematā; v. Providing cultural markers within the Infrastructure to recognise the historic associations of mana whenua with the area and the significance of the land and seascapes of Waitematā to mana whenua; and vi. Enabling use of the Infrastructure for cultural activities. c) In giving effect to Condition 5Db), involvement by the [name to be confirmed by parties] mana whenua in preparation and implementation of the following management plans: i. Management Plan for Dredging and Placement of Mudcrete in the CMA (MPDPM); ii. iii. iv. Erosion and Sediment Control Plan (ESCP); Remediation Action Plan (RAP); Groundwater Monitoring and Contingency Plan (GWMCP); v. Construction Noise and Vibration Management Plan (CNVMP); vi. vii. Biosecurity Management Plan (BMP); Inner Viaduct Harbour Environmental Management Plan (IVHEMP); viii. Industrial and Trade Activities Hazardous Substances and Environmental Management Plans (ITA HSEMPs); ix. Industrial and Trade Activities Emergency Spill Response Plans (ITA ESRPs); and x. Event Management Plan (EMP). d) Accidental discovery protocols; e) Procedures for manaakitanga, site blessings, the cultural induction of construction workers and Event staff, and any other cultural ceremonies; f) Timing, frequency, location and methods of cultural monitoring procedures and protocols during construction activities to demonstrate achievement of the objective(s) for the ACKEP; g) Ongoing mana whenua engagement procedures following the completion of construction; and h) The process by which amendments can be made to the ACKEP. 5E. The Consent Holder shall fulfil the requirements of, and operate in accordance with, the ACKEP. 5F. The role of the [name to be confirmed by parties] Forum in terms of this consent shall continue for the duration of the 10- year period of the consent, and until the requirements of Conditions of 6 to 7C have been complied with. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 14 of 31

16 I consider these amendments are consistent with the direction provided by the AUP and the higher order statutory documents as they provide the appropriate mechanism by which: The role of mana whenua as kaitiaki is recognised and there is provision for mana whenua to actively participate in the Project (Policy B.6.2.2(1)(a), (e), (h)); Mana whenua can identify their cultural values (tangible and intangible) and how the Project impacts these values (Objective B6.5.1(1) and Policy B6.3.2(1)); The effects on cultural values are minimise and / or avoided, remedied or mitigated (Objective F2.5.2(2) and Objective F2.16.2(3)); and Mana whenua are involved in the management of the Project in a manner that recognises the Maori world view (Policy B6.3.2(4)) Further, I consider that the proposed wording of the condition is broad enough to capture any Project related effects on the cultural values, both tangible and intangible, when considered against the purpose (proposed Condition 5B) and the objectives (proposed Condition 5C). Marine and Coastal Area (Takutai Moana) Act 2011 Review Condition Regarding the inclusion of a specific condition to provide for a consent review where a Marine and Coastal Area (Takutai Moana) Act 2011 (MACAA) application that relates to the Project Area is successful, the evidence of Mr Lala and Mr Cook 6 states: In terms of subsection c) it is our understanding that under MACA Act process Panuku would remain the owner of any structures in the CMA regardless of the outcomes the MACA Act applications. In addition, it would be unreasonable to require a Council to review the conditions, as it would be uncertain as to what adverse effects/conditions would need to be reviewed While MACAA is a separate statute, it cannot be discounted that the granting of a MACAA application may raise resource management issues. 6 Evidence of Vijay Nagen Lala and Karl Peter Cook on Behalf of Panuku Development Auckland (Planning) 7 August 2018, paragraph Evidence of Luke Christopher James Faithfull 28 August 2018 Page 15 of 31

17 Whilst it is not common to defer to other statutes in the implementation of the RMA, the interrelationship is already recognised in MACAA specially in s62(2) and (3) of MACAA which states [emphasis added]: (2) Subsection (3) applies if a person applies for a resource consent, a permit, or an approval in relation to a part of the common marine and coastal area in respect of which (a) no customary marine title order or agreement applies; but (b) either (i) an applicant group has applied to the Court under section 100 for recognition of customary marine title and notice has been given in accordance with section 103; or (ii) an applicant group has applied to enter negotiations under section 95. (3) Before a person may lodge an application that relates to a right conferred by a customary marine title order or agreement, that person must (a) notify the applicant group about the application; and (b) seek the views of the group on the application As such, it seems to me that the two statutes may well overlap and each needs to be mindful of the other. Therefore, I consider that it is appropriate to provide for a review condition in accordance with s128 of the RMA Noting that I have specifically referenced only those MACAA outcomes that have resource management implications, I propose that the following condition be included as proposed Condition 12(d): Pursuant to sections 128 to 131 of the RMA, the Consent Authority may serve notice on the consent holder of its intention to review any, or all, of the conditions of the consent within 12 months following: (i) (ii) the granting of a customary marine title or protected customary rights or the vesting of ownership over any part of the foreshore or seabed encompassing the Project or Event Area. any agreement between Ngā Mana Whenua o Tāmaki Makaurau and the Crown as a result of Treaty negotiations involving the Waitematā Harbour as provided for in Ngā Mana Whenua o Tāmaki Makaurau Collective Deed. The purpose of the review is to address any specific Resource Management Act 1991 matters that arise from the granting of the title or right. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 16 of 31

18 2534 Cultural Legacy 5.26 While not identified as matter of contention in the evidence of Mr Lala and Mr Cook, I understand that this is a matter of concern to mana whenua in opposition I note the evidence of Mr Marler 7 identifies the significant legacy benefits as a result of the Project are: a) The early exit of the tankers on Wynyard Point; b) New public open space are a result of the Hobson Wharf extension; c) Improved public access to the waterspace; d) Upgrade to Wynyard Wharf and the seawall; and e) Expansion of sheltered waterspace for future events I note that in response to the submission from Ngāti Whatua Orakei Whaia Maia Ltd (Ngāti Whatua Orakei), the evidence of Mr Craig Jones 8 on behalf of Panuku states: Ngati Whatua Orakei Whaia Maia states in 8 of its submission that the Proposed consent conditions should include (in particular) establishment of a mana whenua Maori/Polynesian cultural centre within the footprint of the proposed extension to Hobson Wharf and / or its waterfront surrounds as a legacy project to recognise and celebrate Ngati Whatua Orakei's, and Nga Iwi o Tamaki s mana whenua relationships, with the Waitemata and the wider Pacific. I consider with respect to the Hobson Wharf extension a space of this shape and circa 7,000m2 is sufficient to establish such a cultural centre if it was found to be a favoured development site Although, the provision of the cultural centre is acknowledged as cultural offsetting in the evidence of Mr Lala and Mr Cook 9, there is no specific condition in the Proposed Conditions which provides for this. I note that the evidence of Mr Lala and Mr Cook 10 identifies that provision for such a 7 Evidence of Roderick Maitland Marler on Behalf of Panuku Development Auckland (Corporate), 7 August 2018, paragraph Evidence of Craig Gareth Jones on Behalf of Panuku Development Auckland (Event Legacy), 7 August 2018, paragraph Evidence of Vijay Nagen Lala and Karl Peter Cook on Behalf of Panuku Development Auckland (Planning) 7 August 2018, paragraph Evidence of Vijay Nagen Lala and Karl Peter Cook on Behalf of Panuku Development Auckland (Planning) 7 August 2018, paragraph 12.10(a) Evidence of Luke Christopher James Faithfull 28 August 2018 Page 17 of 31

19 2535 centre would be provided for as a restricted discretionary activity (with, however, wideranging assessment criteria). I agree with this planning interpretation for the construction of any such centre Acknowledging that the above recommendation is specific to Ngāti Whatua Orakei, based on my understanding of mana whenua in opposition s stance on cultural legacy the provision of a cultural centre is generally supported however, for it to constitute a meaningful cultural legacy it needs to: a) Appropriately acknowledge and provide for the relationship of all iwi and hapū subject to the Collective Act given Part 10 of the Collective Deed acknowledging the spiritual, ancestral, customary and historical significance of the Waitematā to these mana whenua 11 ; and b) It needs to be provided for as a consent condition to confirm Panuku s commitment to provision of the cultural centre I have no attempted to draft a condition, pending further discussions with the Applicant. Summary of Points in Contention I consider that the amendments to the Proposed Conditions are appropriate and have regard to the policy direction in the AUP and relevant higher order statutory documents The proposed amendments will also assist in providing a mechanism for ensuring mana whenua values / interests are appropriately recognised and provided for throughout the Project term To assist the Court, I have provided a track changed version of the specific amendments to the Proposed Conditions identified above as Attachment 2 to this evidence. 11 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Deed (5 December 2012), Cl.10. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 18 of 31

20 CONCLUSION 6.1 I consider that the additional amendments outlined in my evidence are necessary to ensure that mana whenua values, as they are relevant to the Project area, are adequately acknowledged, recognised and provided for, in accordance with the AUP requirements. 6.2 Further, I consider that the amendments to the Proposed Conditions will appropriately recognise mana whenua as a partner in the Project and ensure that the role of mana whenua as kaitiaki will be appropriately provided for throughout the Project and beyond. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 19 of 31

21 2537 ATTACHMENT 1 - RELEVANT STATUTORY PROVISIONS NEW ZEALAND COASTAL POLICY STATEMENT Objective 3 To take account of the principles of the Treaty of Waitangi, recognise the role of tangata whenua as kaitiaki and provide for tangata whenua involvement in management of the coastal environment by: recognising the ongoing and enduring relationship of tangata whenua over their lands, rohe and resources; promoting meaningful relationships and interactions between tangata whenua and persons exercising functions and powers under the Act; incorporating mātauranga Māori into sustainable management practices; and recognising and protecting characteristics of the coastal environment that are of special value to tangata whenua. Policy 2 The Treaty of Waitangi, tangata whenua and Māori heritage In taking account of the principles of the Treaty of Waitangi (Te Tiriti o Waitangi), and kaitiakitanga, in relation to the coastal environment: a) recognise that tangata whenua have traditional and continuing cultural relationships with areas of the coastal environment, including places where they have lived and fished for generations; b) involve iwi authorities or hapū on behalf of tangata whenua in the preparation of regional policy statements, and plans, by undertaking effective consultation with tangata whenua; with such consultation to be early, meaningful, and as far as practicable in accordance with tikanga Māori; c) with the consent of tangata whenua and as far as practicable in accordance with tikanga Māori, incorporate mātauranga Māori in regional policy statements, in plans, and in the consideration of applications for resource consents, notices of requirement for designation and private plan changes; d) provide opportunities in appropriate circumstances for Māori involvement in decision making, for example when a consent application or notice of requirement is dealing with cultural localities or issues of cultural significance, and Māori experts, including pūkenga, may have knowledge not otherwise available; e) take into account any relevant iwi resource management plan and any other relevant planning document recognised by the appropriate iwi authority or hapū and lodged with the council, to Evidence of Luke Christopher James Faithfull 28 August 2018 Page 20 of 31

22 2538 the extent that its content has a bearing on resource management issues in the region or district; and i. where appropriate incorporate references to, or material from, iwi resource management plans in regional policy statements and in plans; and ii. consider providing practical assistance to iwi or hapū who have indicated a wish to develop iwi resource management plans; f) provide for opportunities for tangata whenua to exercise kaitiakitanga over waters, forests, lands, and fisheries in the coastal environment through such measures as: i. bringing cultural understanding to monitoring of natural resources; ii. providing appropriate methods for the management, maintenance and protection of the taonga of tangata whenua; iii. having regard to regulations, rules or bylaws relating to ensuring sustainability of fisheries resources such as taiāpure, mahinga mātaitai or other non-commercial Māori customary fishing; and g) in consultation and collaboration with tangata whenua, working as far as practicable in accordance with tikanga Māori, and recognising that tangata whenua have the right to choose not to identify places or values of historic, cultural or spiritual significance or special value: i. recognise the importance of Māori cultural and heritage values through such methods as historic heritage, landscape and cultural impact assessments; and ii. provide for the identification, assessment, protection and management of areas or sites of significance or special value to Māori, including by historic analysis and archaeological survey and the development of methods such as alert layers and predictive methodologies for identifying areas of high potential for undiscovered Māori heritage, for example coastal pā or fishing villages. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 21 of 31

23 2539 AUCKLAND UNITARY PLAN Section B6 - Mana Whenua of the AUP in particular [emphasis added]: B6.2. Recognition of Treaty of Waitangi/Te Tiriti o Waitangi partnerships and Participation B6.2.1 Objectives (2) The principles of the Treaty of Waitangi/Te Tiriti o Waitangi are recognised through Mana Whenua participation in resource management processes. B6.2.2 Policies (1) Provide opportunities for Mana Whenua to actively participate in the sustainable management of natural and physical resources including ancestral lands, water, sites, wāhi tapu and other taonga in a way that does all of the following: (a) (c) (e) (f) (g) (h) recognises the role of Mana Whenua as kaitiaki and provides for the practical expression of kaitiakitanga; provides for timely, effective and meaningful engagement with Mana Whenua at appropriate stages in the resource management process, including development of resource management policies and plans; recognises Mana Whenua as specialists in the tikanga of their hapū or iwi and as being best placed to convey their relationship with their ancestral lands, water, sites, wāhi tapu and other taonga; acknowledges historical circumstances and impacts on resource needs; recognises and provides for mātauranga and tikanga; and recognises the role and rights of whānau and hapū to speak and act on matters that affect them. B6.3. Recognising Mana Whenua values B Objectives (1) Mana Whenua values, mātauranga and tikanga are properly reflected and accorded sufficient weight in resource management decision-making. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 22 of 31

24 2540 (2) The mauri of, and the relationship of Mana Whenua with, natural and physical resources including freshwater, geothermal resources, land, air and coastal resources are enhanced overall. B6.3.2 Policies (1) Enable Mana Whenua to identify their values associated with all of the following: (a) (d) (e) ancestral lands, water, air, sites, wāhi tapu, and other taonga; historic heritage places and areas; and air, geothermal and coastal resources. (2) Integrate Mana Whenua values, mātauranga and tikanga: (a) in the management of natural and physical resources within the ancestral rohe of Mana Whenua, including: (i) (ii) ancestral lands, water, sites, wāhi tapu and other taonga; historic heritage places and areas. (b) (c) (d) in the management of freshwater and coastal resources, such as the use of rāhui to enhance ecosystem health; in the development of innovative solutions to remedy the longterm adverse effects on historical, cultural and spiritual values from discharges to freshwater and coastal water; and in resource management processes and decisions relating to freshwater, geothermal, land, air and coastal resources. (3) Ensure that any assessment of environmental effects for an activity that may affect Mana Whenua values includes an appropriate assessment of adverse effects on those values. (4) Provide opportunities for Mana Whenua to be involved in the integrated management of natural and physical resources in ways that do all of the following: (a) (b) (c) recognise the holistic nature of the Mana Whenua world view; recognise any protected customary right in accordance with the Marine and Coastal Area (Takutai Moana) Act 2011; and restore or enhance the mauri of freshwater and coastal ecosystems. (6) Require resource management decisions to have particular regard to potential impacts on all of the following: Evidence of Luke Christopher James Faithfull 28 August 2018 Page 23 of 31

25 2541 (a) (b) (c) (d) (e) (f) the holistic nature of the Mana Whenua world view; the exercise of kaitiakitanga; mauri, particularly in relation to freshwater and coastal resources; customary activities, including mahinga kai; sites and areas with significant spiritual or cultural heritage value to Mana Whenua; and any protected customary right in accordance with the Marine and Coastal Area (Takutai Moana) Act B6.5. Protection of Mana Whenua cultural heritage B Objectives (1) The tangible and intangible values of Mana Whenua cultural heritage are identified, protected and enhanced. (2) The relationship of Mana Whenua with their cultural heritage is provided for. (3) The association of Mana Whenua cultural, spiritual and historical values with local history and whakapapa is recognised, protected and enhanced. B Policies (1) Protect Mana Whenua cultural and historic heritage sites and areas which are of significance to Mana Whenua. (2) Identify and evaluate Mana Whenua cultural and historic heritage sites, places and areas considering the following factors: (a) (b) (c) (d) (e) (f) Mauri: ; Wāhi tapu: ; Kōrero Tūturu/historical: ; Rawa Tūturu/customary resources: ; Hiahiatanga Tūturu/customary needs: ; and Whakaaronui o te Wa/contemporary esteem:. (8) Encourage appropriate design, materials and techniques for infrastructure in areas of known historic settlement and occupation by the tūpuna of Mana Whenua. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 24 of 31

26 2542 Section E11 Land Disturbance Regional, of the AUP in particular [emphasis added]: E11.3. Policy [rp] (3) Manage land disturbance to: (d) maintain the cultural and spiritual values of Mana Whenua in terms of land and water quality, preservation of wāhi tapu, and kaimoana gathering. Section E12 Land Disturbance District, of the AUP in particular [emphasis added]: E12.3. Policy (2) Manage the amount of land being disturbed at any one time, to: (c) maintain the cultural and spiritual values of Mana Whenua in terms of land and water quality, preservation of wāhi tapu, and kaimoana gathering. Section F2 Coastal General Coastal Marine Zone of the AUP in particular [emphasis added]: F Objectives [rcp] (3) Public access, amenity and Mana Whenua values are not adversely affected by inappropriate reclamation, drainage or declamation. F Objectives [rcp] Evidence of Luke Christopher James Faithfull 28 August 2018 Page 25 of 31

27 2543 (4) The depositing or disposal of material in the coastal marine area must not have significant adverse effects on the ecological, recreational, cultural, and amenity values of the Hauraki Gulf. F Objectives [rcp] (2) Activities that have long-term impacts or involve more than a minor level of disturbance avoid, remedy or mitigate adverse effects on natural character, ecological values, coastal processes, historic heritage and Mana Whenua values. F Policies [rcp] (4) Limit the area of foreshore and seabed disturbance to the extent practicable and for the works to be done at a time of day or year, that will avoid, remedy or mitigate adverse effects on all of the following: (f) historic heritage and Mana Whenua values. F Policies [rcp] (5) Provide for use and occupation of the common marine and coastal area by infrastructure, where it does not have a functional need to locate in the common marine and coastal area but has an operational need, and only where it cannot be practicably located on land and avoids, remedies, or mitigates other adverse effects on: (h) Mana Whenua or historic values. F Objectives [rcp] (3) Structures are appropriately located and designed to minimise adverse effects on the ecological, natural character, landscape, natural features, historic heritage and Mana Whenua values of the coastal marine area, and avoid to the extent practicable the risk of being adversely affected by coastal hazards. Evidence of Luke Christopher James Faithfull 28 August 2018 Page 26 of 31

28 2544 ATTACHMENT 2 MANA WHENUA IN OPPOSITION S AMENDMENTS TO THE PROPOSED CONDITIONS 1. Amendments to Condition 5 Condition 5 a) Prior to the Commencement of Consent, the consent holder shall invite the existing Auckland Council Mana Whenua Kaitiaki Forum (ACMWKF) to:, in partnership with members of Ngā Mana Whenua o Tāmaki Makaurau who choose to participate, establish the [name to be confirmed by parties]. b) The [name to be confirmed by parties] will comprise: (i) (ii) Two members appointed by the consent holder; and One member from each of Ngā Mana Whenua o Tāmaki Makaurau parties. c) The purpose of the [name to be confirmed by parties] is to A assist the consent holder in the preparation of an America s Cup Kaitiaki Engagement Plan (ACKEP) (Conditions 5A-5F) consistent with relevant customary practices and in accordance with the principles of the Treaty of Waitangi (Te Tiriti o Waitangi), especially the principles of consultation, active participation and partnership; and d) The consent holder shall facilitate and fund the resourcing of the [name to be confirmed by parties] and meet all fair and reasonable costs associated with any work streams required for the [name to be confirmed by parties] to fulfil its role. Fulfil the obligations set out in the America s Cup Kaitiaki Engagement Plan on behalf of mana whenua. The consent holder shall facilitate and fund the additional resourcing of the ACMWKF to meet all its fair and reasonable costs associated with any work streams required for the ACMWKF to fulfil its role in respect of this condition. Advice Note 1: It is acknowledged that Te Tiriti o Waitangi/The Treaty of Waitangi underpins the relationship between Ngā Mana Whenua o Tāmaki Makaurau and the Crown. Inherent in this are (amongst other things) the principles of partnership, reciprocity, active protection and equity. Importantly, the principle of partnership is endorsed by the concept of good faith. Those principles are acknowledged in the Local Government Act Advice Note 2: The Consent Holder acknowledges that the Waitematā is of extremely high spiritual, ancestral, cultural, customary and historical importance to Ngā Mana Whenua o Tāmaki Makaurau. In accordance with Evidence of Luke Christopher James Faithfull 28 August 2018 Page 27 of 31