IN THE MATTER BE1WEEN

Transcription

1 BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA Decision No. [2018] NZEnvC 157 IN THE MATTER BE1WEEN of the Resource Management Act 1991 (the Act) ROYAL FOREST & BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED (ENV-2015-AKL-129) NGATI MAKINO HERITAGE TRUST (ENV-2015-AKL -140) NGATI RANGINUI IWI INCORPORATED SOCIETY (ENV AKL -141) Appellants AND BAY OF PLENTY REGIONAL COUNCIL Respondent Court: Hearing: Appearances: Environment Judge JA Smith Environment Commissioner SK Prime Tauranga July 2018 MH Hill and RM Boyte for the Bay of Plenty Regional Council (the Council) SR Gepp and MC Wright for Royal Forest and Bird Protection Society of New Zealand Incorporated (Forest & Bird) RB Enright for Ngati Makino Heritage Trust, Ngati Ranginui Iwi Incorporated (Appellants) and Motiti Rohe Moana Trust (MRMT, a section 274 party) HJ Ash for the Tauranga City Council (TCG) AJ Hamm for the Port of Tauranga), Te Tumu landowners including Carrus and others (section 274 parties) and Sunchaser Limited (section 274 party on the Iwi Management appeal) LCR Burkhart for Powerco Limited (section 274 party) MG Gribben for New Zealand Transport Association (NZTA a section 274 party on Infrastructure) D Nightingale for Transpower (s274 party on infrastructure) No appearance for Ngati Whakaue ki Maketu Royal Forest & Bird Protection Society Inc & Ors v Bay of Plenty Regional Council

2 2 Date of Decision: 27 August 2018 Date of Issue: 27 August 2018 FINAL DECISION OF THE ENVIRONMENT COURT A: By consent, orders are made to alter the provisions of the proposed Regional Coastal Environment Plan in accordance with A annexed hereto (coloured Yellow, Grey or Red). B: The Court concludes that further provisions are to be included in the plan as annexed hereto in E (where this alters wording in A the provisions in G take priority). C Pages subject to changes are to be submitted for final approval within 10 working days. D: Any application for costs is to be filed within 15 working days, any response within a further 10 working days and the final reply, if any, five working days thereafter. REASONS I ntrod uction [1] This hearing related to the wording to be inserted in the Bay of Plenty proposed regional coastal environment plan (PRCEP) the appeals fall into two categories: (a) those provisions relating to regionally significant infrastructure within Outstanding Natural Features and Landscapes (ONFL), Outstanding Natural Character areas (ONC) and Indigenous Biodiversity Areas category A (IBDA A); and (b) those relating to Iwi Management provisions as they affect status of certain permitted activities and some wider rewording.

3 3 Background [2] Prior to the High Court decision being received, on the Forest & Bird 1 infrastructure appeal, the Court held a telephone conference with the parties to address the interrelationship of appeals relating to Infrastructure, Iwi Management and the Marine spatial issues for Motiti Rohe Moana. The court concluded that it should proceed to deal with the Iwi Management issues in December 2017, although the pending High Court decision might impact on that hearing. [3] In December 2017, Iwi Management matters were subject to a wording hearing. However, there was some commonality between that hearing and issues subject to the High Court decision released shortly after that hearing. Matters in relation to infrastructure had been subject to appeal to the High Court, and the Decision of December 2017 remitted the matter for reconsideration in accordance with the High Court findings.2 [4] This Court then distributed a Minute dated 9 February 2018 consequent upon the High Court decision, seeking input from the parties in relation to the consequences of that decision. That Minute is annexed hereto as "B". [5] The response of the parties was to ask for time for further negotiations to see if matters could be resolved in relation to Infrastructural issues. The Court was unwilling to issue decisions on Iwi Management matters prior to finalising issues in relation to the High Court remission. The parties' submission responses suggested the issues remitted by the High Court were limited, and submitted there was no need to undertake a wider analysis of provisions not subject to the Forest & Bird appeal. The memoranda of the Regional Council and Forest & Bird are annexed as C and D. [6] Subsequently, the Court was advised that the parties had reached agreement on most of the Infrastructural matters, but required a hearing on final wording. The Court concluded it should also understand the interrelationship with the Iwi Management matters, and reconvened both appeals for further submissions. This is referred to in a further telephone conference held on 21 June 2018, and the Minute issued is annexed as E.

4 4 The Court hearing [7] At the hearing on 17 July 2018, the Court initially sought to address with Counsel how the matter might proceed at this hearing, given the range of issues to be covered. Counsel for the Regional Council had prepared a tracked version showing the various changes that were agreed and those that remained in contention by the various parties. [8] Some of the changes sought to the Infrastructure and Iwi Management appeals related to similar provisions of the plan although not to the same issues. In the circumstances, Ms Hill for the Regional Council advised that she had prepared explanatory submissions giving a background to the matters, and also addressed some of the issues raised by other parties in detail. We note that paragraph [15] of the Court Minute E addressed the method of dealing with the issues at this hearing. [9] Nevertheless, Forest & Bird sought an alternative approach in order that they could leave the hearing earlier. Having heard the views on procedure from each of the parties, the Court determined that it should deal with Ms Hill's submissions first, including the detailed submissions on Infrastructure, and then move on to hear from Ms Gepp and the parties involved in the Infrastructure appeal, in relation to the wording differences; those matters that were agreed on and then on the wording dispute, and would adopt a similar procedure in respect of the remaining issues. [10] After initial discussion, the court sought to identify the issues that needed to be determined for the purpose of this hearing: (a) many provisions were now agreed, but parties would need to confirm their agreement and the interrelationship with other provisions; (b) the status of Infrastructure in ONFL, ONC and IBDA-A areas was largely agreed, but two aspects were still in dispute: (i) whether an exception should be included by adding the words "or operational" after "functional" to include linear infrastructure; and (ii) whether the potential for offset should be open to regionally significant infrastructure under policy in NH 11A which provides a route for certain applications;

5 5 (c) In relation to the Iwi Management appeals: (i) whether the courts proposal to have permitted activity standards for certain activities in relation to iwi management matters was within scope or had merit; and (ii) miscellaneous matters relating several changes sought by Ngati Makino. We deal with each of these issues in turn. Agreed provisions [11] There was initially a suggestion that NZTA's agreement to infrastructure provisions was subject to acceptance of arguments in relation to "operational" need and the deletion of the first words of NH 11A. Mr Gribben confirmed early in the hearing that NZTA agreement was not conditional, but that they did seek these further amendments. This is confirmed at paragraph 1.3 of NZTA submissions. [12] Ms Nightingale for Transpower indicated they had no issues with the provisions given that they are explicitly exempt. Ms Burkhart for Powerco and Ms Ash for Tauranga City confirmed that they agreed unconditionally with the changes the subject of agreement. They too supported the two additional changes sought by the NZTA, but these were the subject of separate submission. [13] The parties did not discuss the agreed provisions in any detail nor address the underlying coastal policy statement provisions, regional policy statement provisions or the objectives of the policy supporting them. Instead, they asked that the Court to proceed as if this was a consent order for the agreed Infrastructure wording, given that the parties have expended considerable effort in reaching a compromise position before the Court. [14] The agreed changes are annexed hereto as "A". These changes include: """"""'-..., Yellow text = Iwi Management provisions agreed; Grey text = Infrastructure management provisions agreed; and Red text = settled by earlier consent orders awaiting this decision. Sl(.t>-L OF lit~,~/--~ ::c-. X~7),~,("f,{~,,-,}(,',~,;:,J\ S?"i: t We have no~ addressed the changes in red, as these were agreed sometime ago and S; \ <;,:(\~','~;t':'\(~~\ )c.~ 1 were otherwise acceptable to the Court. t?~~,:~y';;~;;:;"!~'<~:'~:::i/,,/!~, ~ '.0' -.".<., /' '('!'~Ir ""1\'," (\ \'>< " 1",( 1('.,/,... _",,.,.J."

6 6 Infrastructure Agreed infrastructure changes [15] The major's changes now agreed to the infrastructure provisions relate to: (a) policy NH1 in particular some minor changes to connective words, deletion of the word "development" from (f), and the addition of a new subparagraph (2.) There is also a clarification at the end of that clause together with an amendment to the advisory note to now read: Advice note: when determining whether an activity may have unacceptable adverse effects under clause (2) of policy NH1 the following policies apply: NH4, NH4A, NH5, NH11 and NH11A. (b) policy NH4(a) amended by adding to the first line Recognise the existing activities "and their effects... " (c) policy NH5 be amended by the following Consider providing force of subdivision use and development proposals that will adversely affect the values and attributes associated with the areas listed in policy NH4 where: (aa) after an assessment of a proposal in accordance with policy NH4A, transient or minor adverse effects on the attributes and values are found to be acceptable; for a. The proposal: i. relates to the operation, maintenance or protection of existing regionally significant infrastructure or upgrading regionally significant infrastructure provided that the scale and intensity of any long-term adverse effects of the proposal are the same or similar as those arising from the existing infrastructure; or ia. relates to the construction operation maintenance protection or upgrading the national grid; or (ii) (d) policy NH 11 as amended by the addition of new (d) and(e) to read; (d) More than minor residual adverse effects on the values and attributes that contribute to any indigenous biological diversity area A (as identified in Chen schedule 2 table 1) or on any taxa that meet the criteria listed in policy 11 (a) (i) or (ii) of the NZ CPS which cannot be avoided, remedied or mitigated are offset to the extent practicable; and (e) Significant residual adverse effects on the attributes and values of any Indigenous Biological Diversity Area A (as identified in schedule 2 table 1) or

7 7 on any taxa that meet the criteria listed in Policy 11 (a) (i) or (ii) of the NZ CPS that cannot be offset are: i. avoided; or ii. iii. only experienced over a short term; or acceptable given the positive effects of the proposal on indigenous biodiversity values except that clauses (d) and (e) do not apply to the National Grid. (e) Rule SO 10 - words are added after 3. to read: In an Indigenous Biological Diversity Area A (as identified in Schedule 2, Table 1) or an Area of Outstanding Natural Character (as identified in Appendix I to the Regional Policy Statement), or (ee) the construction, operation, maintenance, protection, upgrading or development of the National Grid (e) the operation, maintenance, upgrading and protection of the existing regionally significant infrastructure. (f) new Rule SO 10A - Non-Complying - New Regionally Significant Infrastructure in an Indigenous Biological Diversity Area A or an Area of Outstanding Natural Character: The 1. Occupation of any part of the common marine and coastal area; 2. Erection, reconstruction and placement of new structures; and 3. Use of new structures in the coastal marine area associated with the construction and development of new regionally significant infrastructure in any Indigenous Biological Diversity Area A (as identified in Schedule 2, Table 1) or an Area of Outstanding Natural Character (as identified in Appendix I to the Regional Policy Statement) is a non-complying activity, except where the structure of use is: (a) A permitted activity under Rules SO 4, SO 6, SO 6A, SO 7 or SO 8; or (b) A discretionary activity under Rule SO 10. (g) Policy DD 7 is agreed to include a new advice note: Advice note: Policies NH4, NH 4A, NH5, NH11, and NH11A apply if an activity may have adverse effects on the values and attributes of an Indigenous Biological Diversity Area A (IBDAA) identified in Schedule 2, Table 1. Agreed changes to Iwi Management _""C'~~... [16] Although some provisions were conditionally agreed in relation to Iwi Management ;:;::f!:~~>.=~\ matters, not all could be regarded as settled. We understand the following matters are ) ('.,",',.,. ;. i \ "resolved. ~~;~"~;fi~j~ "<.'/i/icqig-\:\ ~:\>,,, ~~~-v~,_,c.. ;:1.~<: J.p "'...

8 8 a new chapter "Integrated Resource Management" on page (iii) Contents; an addition to Issue 14 to include: Ko te moana ko au, ko au ko te moana (I am the sea - the sea is me). Tangata whenua, as indigenous peoples, have rights protected by Te Tiriti 0 Waitangi (the Treaty of Waitangi) and that consequently the RMA accords tangata whenua a status distinct from that of interest groups and members of the public; a new Issue 20A; Policy 6 of the NZCPS recognises tangata whenua needs for Papakainga, marae and associated developments in the coastal environment; but tangata whenua aspirations in relation to use, values and development are not well understood, particularly in the coastal marine area. an addition to Objectives 2.1 Integrated management, Objective 1 (d) adding the words "the exercise of'; amendment to Objective 4, adding sub-paragraph Objective 4 (c) Degraded cultural sites which tangata whenua wish to restore for natural heritage and cultural reasons changes to 2.4 Iwi Resource Management Objectives 12, 14 and 15; Objective 12 Take into account the principles of the Treaty of Waitangi and provide for partnerships with the active involvement of tangata whenua in management of the coastal environment when activities may affect their taonga, interests and values. Objective 14 The recognition and protection of those taonga, sites, areas, features, resources, 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). Objective 15 The restoration or rehabilitation of areas of cultural significance, including significant cultural landscape features and culturally sensitive landforms, mahinga mataitai, and the mauri of coastal waters, where customary activities or the ability to collect healthy kaimoana are restricted or compromised. additions to Part 3, adding new topic heading Integrated Resource Management (IR), policies IR 1 and IR 2; New Policy IR 1 Recognise the potential social, cultural and economic benefits that arise from use and development of the coastal environment and the constraints to future use and development; New Policy IR 2 Provide for activities that have a functional need to locate in the coastal marine area in appropriate locations (recognising the positional requirements of some activities), by decision-making, zoning or use of other spatial mechanisms.

9 9 additional wording to Policy NH 6(b); (b) Natural features and natural landscapes (including seascapes) in the coastal environment that are not listed as outstanding in Schedule 3. changes to chapter 3 Iwi Resource Management (lw) 3.1 Policies, Policy IW 1, particularly to the introduction and (f); Policy IW 1 Proposals which may affect the relationship of Maori and their culture, traditions and taonga must recognise and provide for: (e) (f) The role and mana of tangata whenua as kaitiaki of the region's coastal environment and the practical demonstration and exercise of kaitiakitanga; changes in wording to policy IW 2; and two additional Advice Notes; Policy IW 2 Avoid, and where avoidance is not practicable, remedy or mitigate adverse effects on resources or areas of spiritual, historical or cultural significance to tangata whenua in the coastal environment identified using criteria consistent with those included in Appendix F set 4 to the RPS. Where adverse effects cannot be avoided, remedied or mitigated, it may be possible to provide positive effects that offset the effects of the activity. Advice Note: This policy may apply to specific resources or areas of significance or special value to Maori in the coastal environment which are identified under method 19A(b) as those which require protection through the avoidance of significant adverse effects. The Areas of Significant Cultural Value identified in Schedule 6 are likely to strongly meet one or more of the criteria listed in Appendix F set 4 to the RPS. addition of (c) to policy IW 4, with a connecting word added to (b); (b) (c)... ; and The principles ofte Tiriti 0 Waitangi (the Treaty ofwaitangi), recognising that these will continue to evolve and be defined. an addition to policy wording at the commencement of IW 7; Where proposals are likely to have an adverse effect on the mauri of the coastal environment, then (where it is appropriate for consent to be granted) the consent authority shall consider imposition of consent conditions that incorporate the use of matauranga Maori based methods or cultural indicators that recognise and express Maori values to monitor the effects of the activity on the mauri of the natural and physical resources of the coastal environment. addition of some words to policy IW 9 (a) and a new policy IW 9A as well as a new Policy IW 11A. Policy IW9 (a) Restoring and protecting areas identified by tangata whenua as being of significant cultural or biodiversity value; habitat for taonga flora and fauna; or that are mahinga kai sites; or

10 10 Policy IW 9A Include a review condition in coastal permits where necessary, to address unforeseen adverse effects on taonga, sites, areas, features or resources of significance or special value to tangata whenua, which may arise from the exercise of the consent. Policy IW 11 A To facilitate partnerships between tangata whenua and statutory management agencies including Territorial Authorities and Crown Agencies. in 6 Recreation, public access and open space (RA) (page 49), Public Open Space Policy RA 2 has a (ba) added, as well as (e)(v) Public access Policy RA 3 has additional words added Access Infrastructure Policy RA 7 has (d) added, preceded by a connecting word (and). Policy RA 2 (ba) Recognise the national and regional significance of the coast for cultural activities, and give preference to avoiding adverse effects on cultural opportunities, but recognising where avoidance is not possible some effects may be remedied or mitigated (e) (v) Minimise adverse effects on site and activities of significant cultural value. Policy RA 3 Retain and establish... ; and Promote consultation with early in the development of a proposal relating to provision or enhancement of public access to and along the coastal marine area. Policy RA 7 Regional, city and district councils shall: (c)... ; and... (d) Promote consultation with tangata whenua early in the development of a proposal relating to provision or enhancement of public access to and along the coastal marine area. in the introduction to Part Four there are agreed assessment guidelines referred to. Advisory notes: 7 Occupation for a recreational event occurs when other users are excluded from entering part of the coastal marine area during the event, and this exclusion is for a period of time that would otherwise require a lease or licence to occupy. a major addition is the Assessment Guidelines - Areas of Significant Cultural Value (pages ) that are agreed, as well as new Method 1A (page 194) and additional text to Method 2A (page 194), some changes to Method 15, including the Introduction, (b), (e) and the

11 11 addition of (f) and (g) (pages ); new Method 178, changes to Method 18 and new Method 19A (pages ) and a new Method 21A (page 205). This text is set out in Annexure A. Rule DO 12(d) deletion of the introductory phrase Measures to avoid, remedy or mitigate so the clause commences "Any adverse effects... " is agreed. there is a new Cultural Landscapes definition agreed (page 210). Cultural Landscapes: Tangata whenua have a distinct set of natural heritage values which are conceptualized within a distinct worldview. Cultural landscapes are characterized not only by natural and physical aspects, but also through place names and associated traditions and events that bind tangata whenua to their landscapes, just as the landscape is a part of tangata whenua, both the tangible and intangible. Such landscapes evoke whanaungatanga that link creation traditions with whakapapa, underpinning manawhenua, manamoana, and giving body to kawa and tikanga. Matters that are not agreed [17] In relation to Infrastructure, the matters not agreed appear to relate only to two particular matters, the first occurring in NH 1 (c) where the NZTA, supported by the Regional Council, TCC and Powerco, seek to amend as follows: Have a functional or operational need to be located in or near the coastal environment in general, or in or near a specific part of the coastal environment and no reasonably practicable alternative locations exist; and (additional words in bold) [18] The other is a change to Policy NH 11 A, which currently reads: For proposals listed in Policy NH 5(a) the Regional Council will consider... NZTA, supported by the Regional Council, TCC and Powerco seek to delete the words For proposals listed in Policy NH 5(a). Iwi management [19] Matters not agreed in respect of Iwi Management cover a wider range and are peppered throughout the Plan. They commence with the Issues statement 1.4 where Ngati Makino, supported by Ngati Ranginui and Motiti Rohe Moana Trust, seek four new issues: New Issue: Regional and district plans should foster the social (not for profit) development needs of tangata whenua including for Papakainga, puna reo, kura moana,

12 12 marae upgrades, kaumatua housing type developments in ways that are appropriate and/or enabling. New Issue: Coastal lands that are in Maori ownership are under immense pressure from urban sprawl or they are often targeted for conservation projects. New Issue: Regional and district plan implementation programmes developed in isolation from tangata whenua and can lead to conflict. New Issue: Co-governance and co-management with iwi and hapu education and advocacy and other non-regulatory methods are important components of this Regional Plan and require resourcing. The prioritisation of work programmes to implement the Plan must be balanced and afford tangata whenua provisions some priority status. [20] Under Natural Heritage Objective 2 (page 19) is added: (c) Areas of Significant Cultural Value [21] In Policy NH 3 they seek the following amendment: Urban activities... Policy CE 28 and Policy CE 88 and IW policies of the RPS... (words in bold added) [22] In Policy NH 4 they seek to add a new sub-clause: (d) Areas of particular importance or significance to tangata whenua identified within Areas of Significant Cultural Value. [23] A new policy is sought to be added after NH 5: New Policy: Maintain and enhance natural habitats that support indigenous species in the CMA that are important or essential to sustain commercial, recreational, traditional and/or other cultural activities. [24] In relation to Policy NH 6(b) wording has been agreed in part with further wording sought to be added. That agreed (except for Te Tumu Landowners) seems to read: (b) Natural features and natural landscapes (including seascapes and cultural landscapes and features)... in the coastal environment. [25] A new policy IW 1A was proposed by the Council, but Te Tumu Landowners sought to remove this. The policy reads: Where a proposal is likely to affect the relationship of tangata whenua and their culture, traditions and taonga, decision-makers will consider the imposition of conditions to ensure: (a) the ability for tangata whenua to exercise kaitiakitanga is maintained; (b) Mauri is maintained or enhanced where practicable particularly in relation to coastal waters or freshwater in the coastal environment; and (c) Mahinga kai, taonga species and natural resources used for customary purposes are maintained.

13 13 [26] This provision is supported by Ngati Makino, Rohe Moana Trust and the Regional Council. [27] Ngati Makino and others seek insertion of a new Policy IW 2: Avoid more than minor adverse effects on values, resources or areas of spiritual, historical or cultural significance to tangata whenua in the coastal environment identified in Appendix F set 4 to the RPS. Where minor, less than minor, adverse effects arise, then: (a) avoid, remedy or mitigate those effects; and (b) where those effects cannot be avoided, remedied or mitigated the offsetting or environmental compensation shall be considered. [28] Very minor changes are sought at IW 10 to change "or: to "and" at the end of (a) and (b). [29] There is an alternative standard proposed by the Regional Council at Rules SO 1 at Advisory note 7, SO 2, SO 3 and SO 6. These changes are subject to issues as to jurisdiction and appropriateness raised by the Regional and District Councils. At SO 6, Ngati Makino also seek the insertion of a new (k) to read: (k) The activity or structure shall not damage, modify or disturb any taonga species or taonga species habitat. [30] The standard in SO 9 is also sought to be changed to be consistent with those in the earlier SO rules. Ngati Makino seek to add to Rule SO 10 at the end of the commencement paragraph:... or an area of particular importance or significance to tangata whenua identified within an ASCV. [31] With the exception of Te Tumu, wording was agreed In Policy NH 6. The agreed wording (excluding Te Tumu) reads: (b) Natural features and natural landscapes (including seascapes and cultural landscapes and features) in the coastal environment that are not listed as outstanding in Schedule 3. [32] Te Tumu also sought to include a definition for Cultural Opportunities (page 210) but have not provided any alternative wording. [33] Within the site description schedule ASCV 7 (at page 374) some wording has been moved from the Introduction to the actual schedules, but Ngati Whakaue ki MaketCi still seeks some deletions from those provisions and some further additions. Having

14 14 identified the various provisions in question, we refer to the portions of the plan containing the relevant provisions that are annexed hereto as "e". We have not included the whole Plan because much of the wording is settled, and only included those pages where there are provisions that are either changed by agreement or remain unsettled. Some have been deleted due to the fact that they were withdrawn by Mr Enright for Ngati Makino and the others at the hearing. Given that Ngati Whakaue ki MaketO did not appear, notwithstanding its position, we heard no argument in respect of the changes sought by them to the wording agreed by other parties. [34] It is our intention to now address each of the issues, starting with the matters that are agreed and moving to the various matters in contention, dealing with them in relation to Ngati Whakaue ki MaketO, Te Tumu and those from Ngati Makino and others. Evaluation of the agreed provisions for Infrastructure [35] It was suggested that there was a finding in the High Court Decision that the policies and rules of the PRCEP (appealed) - Policies NH 1, NH 5, NH 11 and NH 11A and Rule SO 10 - did not give effect to Policies 11, 13, 15 of the NZCPS. The result of the appeal is stated at paragraph [145], which states: The appeal is allowed in part. In my judgement, the Environment Court erred in its interpretation of the application of King Salmon decision, of various provisions in the NZCPS and RPS, and the RCEP. [36] In paragraph [89] the High Court notes: In my judgement, the Environment Court erred when it proceeded primarily by reference to the RCEP's objectives, with only limited reference to the RPS and NZCPS. This approach in effect ignored the statutory directive contained in s 67(3). That subsection is clear in its terms. It requires that a decision promulgating regional plans must "give effect to" inter alia national policy statements and regional policy statements. The Environment Court failed to have regard to the majority of the Supreme Court's finding that the words "give effect to" mean to implement, and that this is a strong directive creating a firm obligation on the part of those subject to it. [37] The Environment Court noted its concerns in applying the High Court decision in the Minute circulated to the parties (Annexure 8). The parties' submissions in reply to that, led by Ms Hill and supported by Forest & Bird, indicate that the scope of the matters to be remitted relates only to the relevant policies and rules listed above, and does not have wider ramifications. This is on the basis that previously agreed wording (shown in red as part of Annexure A) is also settled. This had been included in consent memoranda

15 15 SO policies 1 and 5. [38] Whether the High Court required this Court, in considering the agreed provisions to undertake a full assessment under the NZCPS and RPS, has not been addressed by the parties, and it can only be assumed that they do not consider this necessary given the level of agreement reached. [39] This Court has routinely granted consent orders where it considers that matters are within jurisdiction, and that the relevant interests are represented. In this case there has been a hearing, and the plan wording has been closely argued, with all of the key parties having been involved in the negotiation process. [40] We are satisfied that the remission to this Court clearly left open the question as to the status of regionally significant infrastructure activities within ONFL, ONC and IBOM. The Council (supported by the other infrastructural groups) supported discretionary status, while Forest & Bird sought non-complying status. Accordingly, either status or something between those two must be within jurisdiction in broad terms. Given the Court has been asked to review the matter, the Court could reach a conclusion that the activity should either continue to be discretionary or be non-complying. [41] The parties have reached agreement that existing infrastructure, its maintenance, protection and upgrading should be discretionary, provided that the scale and intensity of any effects are the same or similar. Transpower is specifically provided as an exception given the NPES. Beyond that, new infrastructure, or upgrading that exceeds the limits set out in NH 5, would become a non-complying activity. We do note that the revised wording now explicitly identifies the values and attributes of IBOA-A (NH 5(aa». [42] Jurisdictionally, we are in no doubt that this conclusion is one that is within the scope of the Forest & Bird appeal, and has been closely argued by all parties. We acknowledge that it has significant ramifications in the Bay of Plenty for new infrastructure where this cannot avoid ONFL, ONC or IBOA-A. Nevertheless, all the key parties have agreed to the wording provisions now supported by Forest & Bird. NZTA, supported by Powerco, TCC and the Regional Council seek two further changes beyond the agreed provisions to ameliorate the impact on new infrastructure, however no party resiled from " St)\L ~1.,tP\e agreements reached. ~~ --~ I:>;" 7 ~,.. \~~Q~~"~;~k) ~l.,r trlli'\\~~"(f.,..,.., ~~~~. ~~~~~,~,#~~

16 16 [43] We conclude that we are able to confirm the agreed provisions under the consent order process of the Environment Court. We express no view on the merits of this outcome, or the High Court remission, given this agreement by the parties. The agreed provisions for the Iwi Management matters [44] With the exception of the permitted standard approach for SO 1, SO 2, SO 6, SO 9, other marked portions of the plan (shown in yellow and discussed by us earlier) have been agreed between the parties as being appropriate. Having heard from all the parties we are satisfied that there is no conflict with these Infrastructure agreements or other disputed infrastructure provisions, and those agreed in respect of Iwi Management. [45] We also accept that these are within jurisdiction in broad terms, and that the agreed wording has been closely discussed between parties in reaching their relevant agreements. [46] Accordingly, and for the same reasons that we accept the position of the parties in relation to Infrastructure, we include within the consent order annexed hereto as A provisions agreed between the parties in relation to the Iwi Management Resource appeal. Given that no party addressed the agreed provisions in any detail, we are unclear if the change in SO 10 to add "(as identified in Schedule 2 Table 1) or an area of Outstanding Natural Character (as identified in Schedule 1 to the Regional Policy Statement), or" is related to the Infrastructure appeal, the Iwi Management appeal or both. [47] Ms Gepp specifically reserved the question of costs, although this may relate more to the matters left in dispute than those agreed. Nevertheless, we will reserve the question of costs as part of the balance of our consideration of this matter in relation to the disputed provisions. Infrastructure - disputed provisions [48] The remaining dispute of the Infrastructure appeal relates to two matters. Ms Gepp's primary argument in respect of both is that they are beyond the scope of the appeals. Ms Gepp suggests that Policy NH 11A was not the subject of appeal to the High Court, whereas Ms Hill for the Council notes that policies NH 1 and NH 11A were referred to in the High Court by Royal Forest & Bird (along with others that have now been resolved). We note that Policy NH 1 is clearly in the frame, and this is not disputed

17 17 by Ms Gepp. [49] Policy NH 11A is referred to by the High Court at paragraph [20], and clearly that policy was set out as part of the relevant annexure. Its role in the hearing before the High Court, however, is not so clear, although paragraph [32] (c) does identify that the Environment Court preferred the Regional Council's wording in Policies NH 11 and NH 11 A. Given the Court was required to review its decisions in paragraph [145] of the High Court decision, we conclude that Policies and 11 and 11A were remitted to us to reconsider the wording in light of that decision. The scope of the infrastructure appeal [50] Ms Gepp's primary argument in relation to both changes sought is that the appeal from Forest & Bird did not seek to liberalise the provisions, but rather sought to have them applied in a more restrictive fashion. [51] Nevertheless, the consequence of settlements reached in this case is that there has now been a division of infrastructural activities between those that are existing, and those which are new. Such an approach was not adopted either by the Regional Council or before this Court by any party at the first hearing. I can see no reference to it as an approach before the High Court. [52] This is not to preclude it as a potential outcome, but simply to indicate that the ramifications of such a division could create consequential effects that need to be addressed. Nevertheless, we accept Ms Gepp's submission that the parties cannot go beyond what was proposed before this Court at the hearing appealed from (or raised in submissions or the appeals). Operational need [53] In that regard, paragraph NH 1 (c) has not been the focus of argument or attention by any of the parties, including Forest & Bird in their appeal. We conclude that it has arisen as a result of the agreement reached by NZTA and the other infrastructural parties, agreeing to new wording and dividing the activities between existing and new. We are not satisfied that the addition of that word was within the scope of any appeal, and most particularly not within the scope of the Forest & Bird appeal.

18 18 [54] Furthermore, as a matter of merit we see little advantage to the addition of the word. "Functional need" is defined under the PRCEP... a need or requirement that must be met in order for a structure, development, network or building to operate including the technical and operational requirements of the national grid. For example, a marina has a functional need to be located in water. Other, common examples, include shipping lanes and anchorages, ports and aquaculture, and some infrastructure such as stormwater pipes. [55] We make several points. "Operational" seems to be included in functional need, and in the definition occurs as "structure, development, network or building to operate". Later, "Infrastructure includes linear infrastructure such as stormwater pipes". [56] In our view, the addition of "operational" would create conflict between these two provisions and add nothing practically to the interpretation of the plan. Whether a linear structure has a functional need to be located in or near the coastal environment will depend on the particular circumstances, including operational need, and that appears to be recognised within the definition. Accordingly, we have concluded that the addition of the words "or operational" is not within jurisdiction, and, in any event, serves no practical purpose in applying the plan. Offset mitigation NH 11 A [57] In relation to Policy NH 11A, the matter is more complex. NH 11A's original wording intended that it would assess all regionally significant infrastructure, both existing and new. The changes now agreed between the parties would mean that 11A would only apply to existing infrastructure and not to new. [58] In terms of jurisdiction, it is clearly, therefore, open for a party to argue that 11A should apply in the way it applied prior to the agreed charges (which have divided the activities into existing and new infrastructure). Given that this particular policy appears to have been remitted back to the Court for consideration, we consider the question is whether or not the consequential effects of the agreed wording should be recognised by the deletion of the first set of words. In short, we conclude the wording sought is within scope. ~+..~lu!-)."t,- /"'~~ SEAL 0,. ;: [59] Offsetting is not defined in terms of the Plan, but Schedule 13 sets out the principles of biodiversity offsets. The wording of that schedule, which is annexed as F, does give l'j(~~('ise to questions as to whether or not it is intended to apply only to off-site offset, or on- '.:'.. ~.:.".~... '.\.~.r.. '.lf.'.:.'. I,"', \,I '. ','. '...).- J.. <'." \.'..':.. l). (.:.02 '"'~\ ~\\.'<':'/'\". ";:.,~/,,>i1. ~ " //,.- '...,~ ~~ ~ \ \~.-.'J '/ ~,--,,,-.,.?, " ~~ (/f){ ii'p' \~\~'~~~f"" ~"~"~,,,;,,:,,,,{':,;:"'1... of"ii'" ite (in situ) offset. We note in particular that the "no net loss" in paragraph 1 "should be

19 19 designed and implemented to achieve "in situ" measurable conservation outcomes". There are other references in the balance of Schedule 13 (such as 4, the vulnerability of biodiversity affected and landscape context (item 5)). So, while it might be possible to consider off-site offsets under these provisions, there appears, in our view, to be a clear preference for on-site (in situ) biodiversity gains. [60] The reference in Policy NH 5 (aa) to "transient or minor adverse effects" was acknowledged by the parties to be a reference to the King Salmon discussion in this regard. This is reflected in Policy NH 4A(b). The argument in this regard appears to be that Policy NH 11A provides that the assessment of effects undertaken can be subject to an offset approach under 11A for applications under NH 5, but not otherwise. [61] With respect, we can see no necessary connection between Policy NH 4 and Policy NH 11A. It is NH 11A that gives applications under Policy NH 5 a consideration of offset. Essentially, any application for new infrastructure within one of the identified areas would require avoidance of adverse effects on the values and attributes of the area. Minor and transitory effects may not be unacceptable (see Policy NH 4A). The exception provided in relation to applications under NH 5 (a) is NH 11, and addressed through the additions of new policies (d) and (e), that allow for more than minor residual adverse effects and significant residual effects. We cannot see that this assists an application for a new infrastructure activity, which will need to show that either the effects are avoided or are no more than minor or transitory, and are otherwise acceptable. [62] In the end, the complexity arises by reference to the words of Policy 11A that refer to "compensate for more than minor adverse effects on the Indigenous Biological Diversity Area A or on any taxa that meet the policies that cannot be avoided, remedied or mitigated". This, in our view, highlights an ambivalent approach to the question of offset mitigation. Mitigation that is on-site and relates to the values and attributes that are identified for that area would avoid, remedy or mitigate those effects. The offset mitigation that appears to be referred to in Policy 11A is within the scope of Annexure F (Schedule 13) but is not co-extensive with it. It relates to other actions that might not directly address the values and attributes of that area, but provide more general benefits or positive effects, ie cultural effects or improvement of habitat or taxa elsewhere in New Zealand.

20 20 [63] Given the way in which 11A is' structured, we have concluded, by a relatively fine margin, that we should ONLY provide for Policy 11A in association with Policy 11. In our view, it would be better to include it as another subheading to Policy 11 rather than a separate policy, to show the association of the two. We conclude that the first part should be NH 11 (1) and the current 11A become 11 (2). [64] In our view, this doesn't prevent arguments that the adverse effects on the values and attributes of new regionally significant infrastructure are either avoided or adequately remedied or mitigated by virtue of proposed conditions to enhance or protect the values' and attributes of the significant indigenous area. In this regard, we mean such things as pest control, fencing, habitat enhancement, removal of exotics and the like, that might be applicable in the particular circumstances of a case. That should be subject to rigorous examination, and would need to meet NZCPS policies 11 (a) (i) or (ii). [65] To that extent, we do not consider that the removal of new infrastructural activities from 11A necessarily prevents such an application. We comment that it appears to us that the purpose of 11 and 11 A is to suggest that, where remaining effects of changes to existing Regionally Significant Infrastructure are more than minor, there must be no net loss and probably a nett environmental benefit in relation to those values and attributes of the significant indigenous area identified in the Plan to warrant the grant of a consent, given the terms of Policies 11 (a)(i) or (ii) of the NZCPS. This appears to be what the Environment Court was discussing in its original decision, although this was not as clearly expressed as it should have been, given the terms of the High Court appeal. [66] We conclude the wording in 11A should remain, although we suggest it is reformed as a sub-paragraph of NH 11 (say NH 11 (2)). Evaluation of disputed Iwi Management changes [67] There are a number of themes, and changes sought that we address now. Te Tumu changes [68] Te Tumu seeks three changes as a result of the evidence of Mr Frentz given to the Environment Court: (a) a change to Policy NH 6 where the words "and cultural landscape and features" were proposed to be removed. We acknowledge that Mr Frentz gave this

21 21 evidence, but are unclear as to the particular purpose the removal of these words would serve. In our view, the additional words clarify, at least in part, the intention of the preceding words. Given the history of the area, particularly the appeals relating to MRMT and Ngati Makino and others, we agree that the words do help to clarify the scope of the preceding phrase. Thus, we do not agree with Mr Frentz's approach and would agree with the majority. We would leave the words in brackets proposed by the Regional Council. (b) policy IW 1A was proposed by the Council but Te Tumu Landowners seek to remove it (Frentz evidence, paragraph [27]). The basic concern was that the policy was unnecessary. Again, the history throughout the Bay of Plenty has shown that, where intentions are not clearly expressed, tangata whenua have had concerns about the application of various objectives or policies. We agree that the clear thrust of the Plan and the initial decision of this Court is to provide for participation and consideration of the issues arising relating to tangata whenua and applications. To this extent, we consider that this supports the surrounding objectives and policies as well as the provisions of Part 2 of the Act. We accordingly conclude we should maintain the position of the Regional Council's proposed wording. (c) Ms Hamm for Te Tumu, acknowledged that no wording had been supplied for the proposed definition "cultural opportunities". Given the directions of the Court that the alternative provisions should be clear to all parties in order that they could be argued in a succinct fashion, this in itself is fatal to the proposed addition. However, on its merits we conclude that the definition of cultural landscape is sufficient to add a cultural context to the plan, which includes not only cultural health indicators but cultural landscapes. Culture itself is also defined, as are customary activities. Thus, one would anticipate that cultural opportunities were an opportunity to advance or protect one of those aspects of Maori culture. We agree with Ngati Makino and others that further definition would be unhelpful at this stage as this plan is still developing in relation to Iwi Management matters. Accordingly, we would not include a definition of cultural opportunities. This issue might be addressed in more detail if a Marine Spatial Plan, including cultural matters, was included.

22 22 Changes by Ngati Whakaue [69] We did not have any submission from Ngati Whakaue ki MaketO as to their reasoning for their preferred wording. Essentially, much of the information that was originally contained within the description has been moved to the various tables. For reasons that are not clear, Ngati Whakaue ki MaketO seek to delete the first part, which reads: Te Arawa tribes include Tapuika, whose people live on the coastal plain and alongside the lower reaches of the Kaituna River. Tapuika's territory merges with Ngati Pikiao, who occupy the land alongside the upper reaches of the Kaituna River and most of the northern shores of Lake Rotoiti. Ngati Whakaue ki Maketu, Ngati Rangitihi, Ngati Makino and Waitaha iwi also have a close relationship with the Kaituna River and the Ongotoro-Maketu estuary. [70] Overall, we conclude this wording correctly reflects the current position, and it does not assert mana whenua in any particular hapo, tribe or iwi. A deletion of words in the schedule such as "lands adjacent to the estuary and Okurei Point" seems inexplicable in light of the factual information known. We retain this introduction. [71] As to the addition of words after "important Tauranga waka it is known as the landing place of the Arawa waka" we would agree with that wording change. It is a minor tidying of the provisions and does not change its substance but is clearer. With respect to the following words "Ongotoroto is the tangata whenua name for the MaketO estuary; the name comes from Ngatoroirangi", again, we are unclear as to the reason for the deletion of those words, and do not see them as offensive. At the end of the statement, Ngati Whakaue seek to add "Tama Te Kapua took place on board the waka". We have no difficulty with the addition of those words. [72] For some reason, for the table showing fish species, Ngati Whakaue wishes to remove terakihi from it, and we are not sure why this is. From a precautionary point of view, we conclude that it should remain in, given that we haven't heard any evidence on the topic and the matter did not seem to be the subject of any particular evidence. Similarly, we do not understand the reasons for addition of "whanau and hapu" to Method 15. As they are already included, we delete those words. Changes by Ngati Makino and others [73] Several issues arise in this regard, and can be dealt with as integrated topics as follows:

23 23 (a) new and amended policies and issues (between page 14-1S) policy NH 4(c), policy NH SA (after NH S), new policy IW 2, changes to policy 10. Some provisions seek to elevate ASCV to similar consideration as ONC and ONFL; (b) changes to the permitted activity standards SO 1, SO 2, SO 3, SO 6, SO 9, SO 10 and inclusion of avoidance policies for ASCVs, Objective 2.2 Objective 2, Policy IW 2. This is a jurisdictional issue for permitted status raised by the Regional Council and others, and some new wording sought by Ngati Makino. (c) policy NH 3 and new policy NH SA. This wording seeks to support indigenous species in the CMA that are important or essential to sustain commercial, recreational and traditional and/or other cultural activities. We deal with each area in turn. New and amended policies and issues Protection provisions for ASCV [74] In addition to Issue 14, which has been extended, and the new Issue 20A which has been agreed, Ngati Makino now seek three new issues, which were set out earlier. [7S] The new issue relating to development needs does not seem to be reflected in a new objective. Ms Hill suggests that agreed Issues 19, 20 and 20A are sufficient to address these questions. Mr Enright, on the other hand, suggests that the issues lack any directive nature or resolution of tensions identified. We have concluded that the first two new issues sought by Ngati Makino, relating to development needs and the pressure of urban sprawl, do not significantly add to the issues already identified earlier. [76] The same can be said of part of the final issue, however the following words are sought to be added: Co-governance and co-management with iwi and hapu, education and advocacy, and other non-regulatory methods are important components of this Regional Plan, and will require resourcing. The prioritisation of work programmes to implement the Plan must be balanced and afford tangata whenua provisions some priority status. [77] In considering all of these provisions, we have concluded that this paragraph could usefully be added as part of Issue 20A, to identify the recognised tension and potential ways in which this might be realised within this Plan. Ms Hill recognises the issue of

24 24 collaboration and partnership in her submissions, and says that these are recognised in Objective 12, Policy 11 A and numerous methods. We conclude that the identification of this as an issue in the first part of the plan does no more than to give a foundational linkage to what is an important issue within this plan. To that extent, we have concluded that the addition of the words above at the end of the new issue 20A agreed between the parties is appropriate, and provides a linkage to other provisions contained throughout the balance of the plan. [78] We therefore conclude that, with the exception of those words identified above being added to Issue 20A, the balance of the other new issues identified by Ngati Makino do not need to be included within the Plan to add to its content clarification. Protection of ASCV [79] Within the objectives, at 2.2, Mr Enright argues for the inclusion of areas of. Significant Cultural Value as a new additional (c). This would give them the same status as Outstanding Natural Features and Landscapes and Outstanding Natural Character areas, ie protective priority. This objective is then reflected in Policy NH 4, where it is intended to include ASCV areas' protective features. In our view, the fundamental problem is that in Policy NH 4 it is the adverse effects on values and attributes of the areas that must be avoided. The reason for the stepped approach in this case is that ASCV values and attributes have not been fully identified. [80] Mr Enright accepted that within areas of ASCV there were likely to be variable values and attributes, with some areas having very high status (and deserving full protection) and other areas where development by tangata whenua, for example, might be appropriate. [81] To prevent the consideration of tangata whenua development within these areas, in our view, would be a significant interim constraint in light of: (a) the fact that several iwi sought further development opportunities within ASCV, and the CMA generally, and this would preclude that outcome even if it was otherwise warranted; and (b) that such a constraint was not signalled in the plan, and is actually contrary to a number of appeals seeking further development opportunities, including that of Ngati Ranginui.

25 25 [82] The further impact of this can be seen in the proposed words for Policy IW 2, which requires the avoidance of more than minor adverse effects on values and resources. This essentially seems to be a proposition similar to (but not exactly the same) as the avoidance requirement of Policy 11 (a)(i) and (ii) of the NZCPS. Again, for the same reasons we have just discussed, we conclude it is inappropriate and premature to provide such significant constraint for two reasons: (a) that it is the subject of further investigation required under Method 19M and the subject of discussion and consideration by this Court earlier; (b) that it may have an unintended outcome of preventing tangata whenua development within ASCVs, even where this is otherwise appropriate and warranted, and overall, we agree with Ms Hill that these provisions sought by Ngati Makino are premature, and should not be included in the RCEP. [83] In saying this we do not preclude that such an approach might be adopted in relation to ASCV areas or particular values and attributes as a result of adopting method 19M and changes which may result. [84] In relation to the proposed changes to Objective 2, we agree with Ms Hill that the IRM objectives 14 and 15 directly address these issues. Protection there is for a broader application to taonga sites, areas, features, resources and attributes or values of the coastal environment, and would apply throughout the CMA. This gives room for other forms of recognition, including statutory acknowledgements. [85] Mr Enright also sought, in Policy IW 10, to change the "or" to "and" between (a) and (b), and the "or" to "and". Although the original wording between (b) and (c) was sought to be "and", Mr Enright now suggests that this simply be "or" as stands. For the same reasons we have already discussed, we conclude that such a change adds little and does not assist given the current situation in relation to ASCVs. Permitted Activity Standard [86] In its interim decision, the Court suggested that some form of standard in relation to the permitted activities may properly address the tension in relation to the cultural issues of the ASCV and the continuation of permitted activities within the area. Tauranga City Council and the Bay of Plenty Regional Council both remain concerned at such an approach, given the lack of enforceability and the lack of clarity as to how these provisions

26 26 might in fact apply. They point out that, as agreed between the parties, guidelines for areas of significant cultural values set out at page 194, annexed as part of A, sets out a range of considerations that need to be addressed on any new activity. [87] Having heard the argument for the parties, Ms Hill suggested in her response that one possible approach was to require even permitted activities to have regard to these guidelines. She points out that, currently, all applicants and decisionmakers are to have regard to it. [88] We have re-examined the proposed rule S01 standard 1, rule SO 2 standard 1, SO 3 standard 1, and SO 6, the introduction of a standard rather than conditions; SO 9 the introduction of a standard as well as the conditions. The rewording when compared with the Guidelines raises similar issues. We have concluded, as a result of the consideration of issues, that the better course of action is to delete the wording proposed in the Rules, and revert to the original wording. However, we conclude that, for Rule SO 1 after the existing advisory riote 7, we add a new advisory note 8: "In considering any activity within an Area of Significant Cultural Value (ASCV), the parties are referred to the assessment guidelines at page 195 of the Plan." This would apply to SO 2 also, adding a new advisory note 3 and reverting to the earlier words in respect of the controls and conditions. The word "standards" is removed from SO 6 and a further advisory note as before is included. Similarly, in respect of SO 9, we would include further advisory note 2. The commencement of the Guidelines at page 195 would be changed to read: "those undertaking activities and decisionmakers". [89] When looking at this matter in the round, we consider that this would still achieve the objective of the Court by alerting parties to the sensitivity of these areas, and at least directing them to have regard to the following matters. We agree that the matters set out and agreed by the parties in respect of these areas are comprehensive, and alert parties to the numerous issues that arise. In those circumstances, we can avoid the concern of the Regional Council and District Council as to jurisdiction, while still achieving the informational aspect that the Court was wishing to achieve in its decision. [90] We confirm the changes (agreed subject to jurisdiction) to these methods can be -%).. ' "..",,', /. '\'''/. ' /",-,,' ~.,'.,\ " ~J'1'. ~_..~... (>\~.(!r.t. / '-'I',1j F)'I \"V if- ".' '....11'\ 'T'.;:..;1!!: '~":~'~'r.~-,.,,.," """"

27 27 [91] For completeness, we note that Rule SO 10 was intended to have an addition to the structures and occupation to include areas of particular importance and significance within an ASCV. For the same reasons we have set out in relation to the other provisions, this would leave considerable lacuna as to what these particular values and attributes of importance were pending the outcome of the Council's identification of these through the method 19AA. We have considered that the additional changes sought by Mr Enright are not appropriate elsewhere. For the same reasons, we consider the introduction of such a provision into Rule SO 10 would be confusing and derogate from the Rule itself. Accordingly, we do not make the Ngati Makino changes to Rule SO 10. Other changes [92] In Policy NH 3, Mr Enright seeks to include a reference to the IW policies of the Regional Policy Statement (RPS). Ms Hill makes the point that reference to the RPS IW policies in this context conflates issues relating to natural character and iwi management. Nevertheless, we acknowledge that there is some overlap between these issues, and many of the ASCV values are co-extensive with or similar to those for natural character. [93] On a cautionary basis, we have concluded that we can include the words "and IW policies of the RPS" in NH 3 given that they are informational, and generalised rather than giving rise to a new obligation. [94] In Rule SO 6, Mr Enright seeks the inclusion of a new condition to read: The activity or structure shall not damage, modify or disturb any taonga species, or taonga species habitat. [95] Ms Hill raises the same argument in respect of other issues, namely the difficulty in such circumstances that taonga species may not be identified or recognised in an ASCV. Clearly, if it is already recognised, then it is likely to be protected under the general policies of the NZCPS or the other protective policies within this plan. We agree with Ms Hill that the identification of taonga species in particular areas should await further work on the regional plan, given that the constraints may be significant in circumstances where the extent of these taonga species is not at this stage identified. We conclude that no change should be made to Rule SO 6.

28 28 [96] Ngati Makino seek a new policy, NH SA, situated after NH S to read: To maintain and enhance natural habitats that support indigenous species in the CMA that are important or essential to sustain commercial, recreational, traditional and/or other cultural activities. This, in a way, seems to contradict the earlier policy changes sought, given that it includes commercial and recreational activity as well as other cultural activities that, in themselves, might be exploitive or affect the natural character. For example, it might seek to increase fish species on the basis that this would provide for cultural harvesting. [97] There are already objectives contained in the plan, including NH 1, NH 9A, IW 1A, IW 8 and IW 9A that discuss various aspects of enhancing, restoring, avoiding adverse effects, including IW 9A reviewing conditions to address unforeseen impacts, and IW 10, avoiding uses which would restrict access to cultural practices. [98] We have concluded that such a new policy would add an element of confusion to the existing provisions, which appear on their face to be relatively clearly applicable in certain cases. We acknowledge that Ngati Ranginui and others seek to provide for cultural activities (including commercial activities), including within some ASCVs. This is a matter that is best addressed as part of the 19AA method, in order that the values and attributes of particular areas can be identified in more detail and a marine spatial plan developed if appropriate for such areas. We have concluded that the proposed additional policy NH SA would not assist greatly with those outcomes, and should not be included. Overall outcome [99] Accordingly, there are only very minor changes necessary to the Plan as a whole beyond those that are agreed between the parties. Although the parties had agreed on potential wording if the Court considered a standard for permitted activities was required In this regard, we have altered the wording at Part Four commencement and before the guide itself, to reflect it as useful for all activities in an ASCV. That being the case, the balance of the other amendments necessary are very minor, and are summarised in annexure G. [100] Beyond this, we confirm the wording agreed between the parties at "A", with the exception of the standards. We have deleted some Te Tumu amendments and most of the Ngati Whakaue and Ngati Makino proposed wording, with the exception of the particular provisions we have adopted in "G". Where the terms of "A" are repeated in fig"

29 29 we adopt the wording of ug" if it differs. The Council is to file an amended document attaching all pages of the Plan subject to alterations by Consent orders (including those lying in Court), and the further amendments made, within ten working days, for sealing. [101] As we understand it, this resolves all matters relating to the Regional Plan beyond the following issues: (a) those relating to the Motiti Rohe Moana exclusion areas the subject of the current decision of the Court and the appeal to the Court of Appeal as to jurisdiction; and (b) the Matakana appeal subject to final wording currently being considered by the Court contemporaneously with this matter (Judge Kirkpatrick's division). Costs [102] Ms Gepp has indicated she seeks to make an application for costs. Given the constraints that occur in relation to questions of cost on plan appeals, we do not commend such an application to any party. Notwithstanding, if any party wishes to make an application for costs this is to be filed within 15 working days; any reply 10 working days after that and a final reply, if any, 5 working days thereafter. [103] Any such application will be considered on the papers, and should be supported by sufficient evidence to indicate actual costs incurred in relation to any periods for which the costs are sought. For the Court: Annexures A Amendment to RCEP agreed by consent B Memorandum MRMT v BoP RC of 9 February 2018 C Memo of BoP RC of March 2018 D Memo of Royal Forest & Bird of March 2018

30 30 E Minute of Court issued in June 2018 F Schedule 13 RCEP G Summary of amendments made by the Court

31 Agreed provisions only - submitted to Court following hearing on July 2018 Key: Wording which is not underlined reflects the Decisions Version as amended by settled appeals (consent orders) and final or interim decisions of the Environment Court. Iwi Resource Management Topic - Appeals by Ngati Makino and Ngati Ranginui Wording agreed by all parties (Tauranga City Council, PowerCo Limited, Port of Tauranga, the Te Tumu Landowners, Ngali Makino, Ngati Ranginui and Motiti Rohe Moana Trust) except where otherwise identified Natural Heritage Topic - Forest and Bird Appeal Wording agreed by all parties (Forest and Bird, Ngati Makino, Transpower, Powerco, the Te Tumu Landowners, NZTA, Tauranga City Council and Bay of Plenty Regional Council) Wording reflected in two draft Consent Orders currently lying in Court (Memorandum of Parties in support of draft consent order dated 4 August 2016; and Memoranudm of Parties in support of draft consent order dated 24 August 2016) are shown in red and underlined, EleleteElteJlt appears as strikethrough. MHH V2:ol

32 Issue 14 New Issue 20A Issue 27 Objective 1 Ko te moana ko au, ko au ko te moana (I am the sea - the sea is me). Tangata whenua. as indigenous peoples have rights protected by Te Tiriti 0 Waitangi (the Treaty of Waitangil and that consequently the RMA accords tangata whenua a status distinct from that of interest groups and members of the public. Policy 6 of the NZCPS recognises tangata whenua needs for papakainga. marae and associated developments in the coastal environment; but tangata whenua aspirations in relation to use, values and development are not well understood. particularly in the coastal marine area. Inappropriate routes and methods of access to and along the coastal marine area can degrade dunes, aflg-other sensitive habitats and sites of cultural significance. Achieve integrated management of the coastal environment by: (a) (b) (c) (d) (e) (f) (g) Providing a consistent, efficient and integrated management framework; Adopting a whole of catchment approach to management of the coastal environment; Recognising and managing the effects of land uses and freshwater-based activities (including discharges) on the coastal marine area; Enabling the exercise of kaitiakitanga; Planning for and managing: (i) (ii) cumulative effects; and the effects of climate change; Promoting the sustainable management of the Bay of Plenty coastal fisheries; and 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. Objective 4 Enable the restoration and rehabilitation of the natural heritage of the coastal environment, including: (a) (b) (c) Kaimoana resources; aoo Natural heritage landforms or features that would increase resilience to natural hazards; and Degraded cultural sites which tangata whenua wish to restore for natural heritage and cultural reasons. Objective 12 Take into account the principles of the Treaty of Waitangi and provide for partnerships with Hhe active involvement of tangata whenua in management of the coastal environment when activities may affect their taonga. interests and values.

33 Objective 14 Objective 15 The recognition and protection of those taonga, sites, areas, features, resources----{)f 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). The restoration or rehabilitation of areas of cultural significance, including significant cultural landscape features and culturally sensitive landforms. mahinga mataitai, and the mauri of coastal waters, where customary activities or the ability to collect healthy kaimoana are restricted or compromised. MHH V2:ol

34 Part Three Policies are grouped under the following topic headings: NEW Integrated Resource Management (IR) Natural Heritage (NH) 2 Water Quality (WQ) 3 Iwi Resource Management (IW) 4 Historic Heritage (HH) 5 Coastal Hazards (CH) 6 Recreation, Public Access and Open Space (RA)

35 NEW Integrated Resource Management (IR) New Policy IR 1 Recognise the potential social, cultural and economic benefits that arise from use and development of the coastal environment and the constraints to future use and development; New Policy IR 2 Provide for activities that have a functional need to locate in the coastal marine area in appropriate locations (recognising the positional reguirements of some activities), by decision-making, zoning or use of other spatial mechanisms. Policy NH 1 In relation to the natural heritage of the coastal environment, activities may be considered appropriate if they contribute to the restoration and rehabilitation of natural heritage or cultural values associated with natural heritage (including kaimoana resources and cultural landscape features), or if!tiey: (1) They: (c) (d) (e) (a) (b) Are compatible with the existing built environment and level of modification to the environment. This includes but is not limited to: (i) (ii) Modification that is anticipated as a permitted or controlled activity in an operative District or City Plan; and Urban development activities and associated provision of quality open spaces in Urban Growth Areas contained in the Regional Policy Statement where urban development has been provided for in that area in the relevant District or City Plan, and the development is consistent with the Urban and Rural Growth Management Policies (UG policies) of the RPS; and Are compact, and do not add to sprawl or sporadic development; and... [not agreed] Are of an appropriate form, scale and design to be compatible with the existing landforms, geological features and vegetation or will only have temporary and short-term effects on such features; and Will not, by themselves or in combination with effects of other activities, have significant adverse effects on the natural processes or ecological functioning of the coastal marine area; Q! (f) Involve the operation, maintenance, Q! upgrading 9f Elevelel3ffieflt-of existing regionally significant infrastructure; GFand (2) They will not have unacceptable adverse effects on the values and attributes of an Outstanding Natural Feature MHH V2:ol

36 and Landscape (ONFL), an area of Outstanding Natural Character (ONC) or an Indigenous Biological Area A (IBDA A) identified in NH4: e xcept that clauses ill(a), (b), (d) and (e) of Policy NH 1 do not apply for the National Grid. Advisory note:.:t Advice note: Partislliar sorsieleratior FRllst I:le!ijiveR 10 Polisies When determining whether an activity may have unacceptable adverse effects under Clause (2) of Policy NH1, the following Policies apply: NH4, NH4A, NH5" afiti NH11 and NH11A.--if-..afl aslivity FRay Ra'Je aelverse ettests OR IRe vailles ar8 attril:llltes of ar OlllslaREliR!ij Naillral Featllre arei LaR8ssape (mifl), ar area of OlllslaREliR!ij Natllral CRaraster (ONC) or ar IREligeRollS Biolo!ijisal Diversity Area A (IBDA A ). Policy NH 3A Urban activities in the coastal environment surrounding Ohiwa Harbour and Wai6tahe Estuary should be avoided unless: (a) It can be demonstrated that the activities will not cause cumulative adverse effects on the natural character, natural features and biodiversity of these areas ;~ (ba) The location, scale, intensity and form of the activities is appropriate having regard to the natural heritage values; and (b) The activities will be undertaken as part of a proposal that will have positive effects that will offset adverse effects on natural character, natural features and biodiversity. Positive effects may include, but are not limited to: (i) (ii) (iii) (iv) (v) (vi) Enhancing water quality, for example by reducing the amount of nutrients or other contaminants entering the coastal marine area; Removing derelict or functionally redundant structures; Restoring or enhancing natural elements including dunes, saline wetlands, intertidal saltmarsh, riparian margins and other natural coastal features or processes; Restoring indigenous habitats and ecosystems (using local genetic stock where practicable) including restoring habitats of species that are important for cultural purposes (such as mahinga kai, kaimoana or raranga areas) identified in collaboration with tangata whenua; Supporting the natural regeneration of indigenous species, including effective weed and animal pest management; Creating or enhancing habitat for indigenous species; 6 Regional Coastal Environment Plan

37 (vii) Declaiming previously reclaimed and functionally redundant land where it will restore the natural character of the coastal marine area; (viii) Restoring cultural landscape features; and (ix) Providing more or enhanced public open space or public access to and along the coastal marine area where this is associated with passive recreation. Policy NH 4A When assessing the extent and consequence of any adverse effects on the values and attributes of the areas listed in Policy NH 4 and identified in Schedules 2 and 3 to this Plan and Appendix I to the RPS: (a) (b) (c) (d) (e) Recognise the existing activities and their effects that were occurring at the time that an area was assessed as having Outstanding Natural Character, being an Outstanding Natural Feature and Landscape or an Indigenous Biological Diversity Area A; Recognise that a minor or transitory effect may not be an unacceptable adverse effect; Recognise the potential for cumulative effects that are more than minor; and Have regard to any restoration and enhancement of the affected attributes and values of Ihe area affegied that '... ill es6i:if. Have regard to the effects on the tangata whenua cultural and spiritual values of ONFLs, working, as far as practicable, in accordance with tikanga Maori. Policy NH 5 Consider providing for subdivision, use and development proposals that will adversely affect the values and attributes associated with the areas listed in Policy NH 4 GIlly where: (aa) After an assessment of a proposal in accordance with Policy NH 4A, transient or minor adverse effects on the attributes and values are found to be acceptable; or (a) The proposal: (i) (ia) (ii) as those arising from the existing infrastructure trahs eorsistert with Polisy S04(tl) as if trat ~oliey a~~liea to tre eoastal er'fiforf'f1ert; or Relates to the construction. operation, maintenance. Protection or upgrading of the National Grid; or Relates to the provision of access to offshore islands, or use and development, as set out in Schedule 15 to this Plan; or MHH V2:ol

38 (iii) (iv) (v) (vi) Relates to the operation, maintenance and protection of an existing River Scheme or Land Drainage Scheme; or Relates to the continuation of a use that was lawfully established on or before 22 June 2014, provided there has been no change to the scale and significance of effects associated with an activity; or Provides for the restoration or rehabilitation of indigenous biodiversity, natural features and landscapes or the natural character of the coastal environment in a manner that maintains or enhances the values and attributes associated with the areas listed in Policy NH 4; or Provides for public walking, cycling or boating access to and along the coastal marine area in a manner that maintains or enhances the values and attributes associated with the areas listed in Policy NH 4. Policy NH 8A There should be no net loss of the quality and extent of seaqrass beds, saltmarsh wetlands and bird roosting sites in the coastal environment as a result of subdivision, use and development. Where a biodiversity offset is proposed, it should be developed in a manner consistent with the principles contained in Schedule 13. Policy NH 11 An application for a proposal listed in Policy NH 5(a) must demonstrate that: (aa) There are no practical alternative locations available outside the areas listed in Policy NH 4; and (ab) The avoidance of effects required by Policy NH 4 is not possible; and (a) (b) (c) (d) (e) Route or site selection has considered the avoidance of significant natural heritage areas listed in Policy NH 4 or, where avoidance is not practicable, it has considereds utilising the more modified parts of these areas; Adverse effects are avoided to the extent practicable, having regard to the activity's technical and operational requirements; and Adverse effects which cannot be avoided are remedied or mitigated to the extent practicable; and More than minor residual adverse effects on the values and attributes that contribute to any Indigenous Biological Diversity Area A (as identified in Schedule 2, Table 1) or on any taxa that meet the criteria listed in Policy 11 (a)m or (ij) of the NZCPS which cannot be avoided, remedied or mitigated are offset to the extent practicable: and Significant residual adverse effects on the attributes and values of any Indigenous Biological Diversity Area A (as identified in Schedule 2, Table 1l or on any taxa that meet the criteria listed in Policy 11 (alm or (ij) of the NZCPS that cannot be offset are: 8 Regional Coastal Environment Plan

39 (j) Avoided : or (ii) Only experienced over a short-term: or (iii) Acceptable given the positive effects of the proposal on indigenous biodiversity values. Except that clauses (d) and (e) do not apply to the National Grid. Advisory note: Some significant natural heritage areas are located next to existing and future urban areas. Adverse effects could be caused by people accessing the coast for recreational purposes in inappropriate locations. In some instances. appropriately located. designed and constructed structures. such as board walks and public toilets. may assist in remedying or mitigating these adverse effects. Policy NH 12 When assessing a biodiversity offset, decision-makers must ensure the offset is consistent with the principles contained in Schedule 13 and have regard to: (a) The need to achieve no net loss of overall biodiversity values; (bb) Whether the proposed biodiversity offset is practicable and the stated outcomes are likely to be achieved; (b) (c) (d) (e) (f) The desirability of providing for a net gain within the same habitat type; The desirability of providing for a net gain in the same ecologically relevant locality as the affected habitat; The appropriateness of establishing regionally significant infrastructure and other physical resources of regional or significance; The need to design a biodiversity offset to exchange affected biodiversity with the same type of biodiversity and as close as possible to where the impact occurs; and Where an exchange of the same biodiversity is not possible, and the affected biodiversity values are not high, a net biodiversity gain may be achieved by offsetting with biodiversity of demonstrably greater conservation value that that to be lost. Policy NH 6 Significant adverse effects must be avoided, and other adverse effects avoided, remedied or mitigated, on the values and attributes of: (a) Any Indigenous Biological Diversity Area B (as identified in Schedule 2, Table 2); and MHH / V2:ol

40 (b) Commented [MHH1]: Yeillow agreed but green (propsed by Te Tumu Landowners) not agreed Policy NH 14 Policy NH 15 Policy NH 17 Subdivision, use and development in the coastal environment should consider the use of design techniques, materials and colours that assist in avoiding are compatible 'Nith the surrourdirg er... irormert to a... oid significant adverse effects on natural character values and attributes. Markers or high visibility materials may be required to provide for safety where relevant. Development in the coastal environment may require set-back from beaches and sand dunes to avoid significant adverse effects on natural character. Planting associated with remediation or mitigation of effecls on natural heritage should use appropriate native species, and give preference to the use of eco-sourced native plants. The introduction of exotic plants into areas of Outstanding Natural Character (as identified in Appendix I to the RPS) or an Indigenous Biological Diversity Area A is inappropriate. The introduction of exotic plants into an Indigenous Biological Diversity Area B (as identified in Schedule 2 of the Plan), is inappropriate except where consistent with Policy BS 1. In the consideration of resource consents, Mmaintain sig RiflcaRt public... ie'... s ard identified view shafts associated with QLthe outstanding natural features and landscapes identified in Schedule 3 Outstanding Natural Features and Landscapes Policy IW 1 Proposals which may affect the relationship of Maori and their culture-artl, traditions and taonga must recognise and provide for: (b) (c) (d) (e) (a) Tradilional Maori uses, practices and customary activities relating to natural and physical resources of the coastal environment such as mahinga kai, mahinga mataitai, wahi tapu, nga toka taonga, tauranga waka, taunga ika and taiapure in accordance with tikanga Maori; The role and mana of tangata whenua as kaitiaki of the region's coastal environment and the practical demonstration and exercise of kaitiakitanga; The right of tangata whenua to express their own preferences and exhibit matauranga Maori in coastal management within their tribal boundaries and coastal waters; Areas of significant cultural value identified in Schedule 6 and other areas or sites of significant cultural value identified by Statutory Acknowledgements, iwi and hapo resource management plans or by evidence produced by tangata whenua and substantiated by pokenga, kuia and/or kaumatua; and The importance of Maori cultural and heritage values through methods such as historic heritage, landscape and cultural impact assessments. Policy IW 2 Avoid, sigriflcart and where avoidance is not practicable. remedy or mitigate adverse effects on resources or areas of spiritual, 10 Regional Coastal Environment Plan

41 historical or cultural significance to tangata whenua in the coastal environment identified using criteria consistent with those included in Appendix F set 4 to the RPS, afi I--remeay or mitigate other aaverse effects on Ihese areas. Where significant adverse effects cannot be avoided, remedied or mitigated, it may be possible to provide positive effects that offset the effects of the activity. Advice Note: ~ 2. This policy may apply to specific resources or areas of significance or special value to Maori in the coastal environment which are identified under method 19A(b) as those which require protection throuqh the avoidance of significant adverse effects. The Areas of Significant Cultural Value identified in Schedule 6 are likely to strongly meet one or more of the criteria listed in Appendix F set 4 to the RPS. Policy IW 4 The following shall be taken into account during decision-making: (b) (c) (a) The consistency of the proposal with any iwi or hapo resource management plan recognised by an Iwi Authority and lodged with the Regional Council that applies to the area affected; aoo Recognition provided under any other legislation - including but not limited to: Treaty of Waitangi settlements; gazetting of Rohe Moana and Mataitai under the Kaimoana Customary Fishing Regulations 1998 and the customary rights recognitions available under the Marine and Coastal Area (Takutai Moana) Act 2011 ; and The principles of Te Tiriti 0 Waitangi (the Treaty of Waitangi), recognising that these will continue to evolve and be defined. Policy IW 7 Policy IW 9 Where proposals are likely to have an adverse effect on the mauri of the coastal environment, then (where it is appropriate for consent to be granted) the consent authority shall consider imposition of consent conditions that incorporate the use of matauranga Maori based methods or cultural indicators that recognise and express Maori values to monitor the effects of the activity on the mauri of the natural and physical resources of the coastal environment. With regard to Policy IW 8, recognise that appropriate mitigation, remediation and offsetting may include, but is not limited to, the following: (a) Restoring and protecting areas identified by tangata whenua as being of significant cultural or biodiversity value~ habitat for taonga flora and fauna; or that are mahinga kai sites; or (b) Contributing resources (financial or otherwise) to environmental, social or cultural enhancement and improvement programmes run by affected tangata whenua; or (c) Providing structures associated with customary activities or access to resources of cultural value. MHH V2:ol

42 Policy IW 9A Include a review condition in coastal permits where necessarv. to address unforeseen adverse effects on taonga. sites. areas. features or resources of significance or special value to tangata whenua. which may arise from the exercise of the consent. Policy IW 11A Policy RA 2 To facilitate partnerships between tangata whenua and statutorv management agencies including Territorial Authorities and Crown Agencies. Protect the public open space qualities of the coastal environment by ensuring that any new activities or new facilities: (b) (a) Have a functional need to locate in the coastal marine area or are otherwise consistent with Policy SO 1; Recognise the national and regional significance of the coast for recreational activities, and give preference to avoiding any adverse effects on recreation opportunities, but recognising that where avoidance is not possible some adverse effects may be remedied or mitigated; (ba) Recognise the national and regional significance of the coast for cultural activities, and give preference to avoiding adverse effects on cultural opportunities. but recognising where avoidance is not possible some effects may be remedied or mitigated. (d) (e) (f) Recognise the cumulative effect of the loss of public space at a local level; Are designed and located to: (i) (ii) (iii) (iv) Iv) Maximise public use and access; Ensure safe public access; Minimise any restrictions on recreational access or people's enjoyment of any foreshore and public reserve areas abutting coastal settlements; and Maintain or enhance walking access linkages between public open spaces in the coastal environment; and Minimise adverse effects on site and activities of significant cultural value. Take particular account of RPS Policies CE SA, CE 88(g), CE 88(h), CE 11 8(c) and CE 11 8(d). Policy RA 3 Retain or establish appropriate public access to and along the coast, harbours and estuaries in a manner that is consistent with RPS Policy MN 58, recognising that public access may only be restricted where the restriction is consistent with RPS Policy MN 68, and Promote consultation with tangata whenua early in the development of a proposal relating to provision or enhancement of public access to and along the coastal marine area. 12 Regional Coastal Environment Plan

43 Policy RA 7 Regional, city and district councils shall: (b) (c) (dl (a) Promote the location of appropriately designed and located land-based infrastructure that will support recreational activities and access to the coastal marine area; Avoid cumulative impacts of such infrastructure on the coastal environment, by ensuring such infrastructure is located in the vicinity of official access ways and preferably where the coast is already modified or future development is planned (consented, zoned or designated); and Recognise and provide for structures and activities to enable access to and from off-shore islands where such access contributes to the social, economic, and cultural wellbeing of the community; and Promote consultation with tangata whenua early in the development of a proposal relating to provision or enhancement of public access to and along the coastal marine area. MHH V2:ol

44 Part Four Activity-based policies and rules Part Four contains policies and rules specific to activities in the coastal marine area. The policies included in Part Three are also relevant to consideration of activities in the coastal marine area. Assessment Guidelines - Areas of significant cultural value are included at the end of Part Four and direct applicants and decision-makers to have regard to a range of matters when considering an application for resource consent for activities in Areas of Significant Cultural Value identified in Schedule 6 or other areas or sites of significant cultural value identified by Statutory Acknowledgments. Iwi / HapO Management Plans. or by evidence produced by tangata whenua and substantiated by pokenga. kuia and/or kaumatua Policy SO 1 Recognise that the following structures are appropriate in the coastal marine area, subject to the Natural Heritage (NH) Policies NH 1, ~ l H 4, NHe, ~lh11, ~lhe are! ~l~, Iwi Resource Management Policy IW 2 and an assessment of adverse effects on the location: (a) Structures associated with activities that have a functional need to locate in the coastal marine area (including aquaculture); and (b) Structures associated with new and existing regionally significant infrastructure; or (c) Structures that provide for public access or recreation that is dependent on a coastal location; or (d) Structures associated with Existing River Scheme or Land Drainage Schemes; or (e) Structures associated with customary activities in the coastal marine area such as whare waka, tauranga waka or whare Wananga;or (f) Structures associated with use and development identified in Schedule 15 Offshore Islands. Rule SO 10 Discretionary - Structures, occupation and use in the coastal marine area in Indigenous Biological Diversity Area A or an Area of Outstanding Natural Character The: Occupation of any part of the common marine and coastal area; Erection and placement of new structures, and the reconstruction, maintenance, alteration, extension, 14 Regional Coastal Environment Plan

45 demolition, removal or abandonment of existing structures; and 2 Change in use of an existing structure in the coastal marine area. In an Indigenous Biological Diversity Area A (as identified in Schedule 2, Table 1) or an Area of Outstanding Natural Character (as identified in Appendix I to the Regional Policy Statement) or that is not otherwise a permitted activity under a rule in this Plan, is a discretionary activity where the structure is one for one or more of the following purposes: (a) Providing protection, restoration or rehabilitation of the biodiversity values associated with such areas; (aa) Improving water quality, connections between water bodies or between freshwater bodies and coastal water, or improving other cultural connections or natural processes in the Area; (b) (c) Providing educational, scientific or passive recreational opportunities that will enhance the understanding and longterm protection of the biodiversity values of the area; Navigational aids; (d) Structures erected, reconstructed, placed, altered, or extended prior to the date on which this Plan was publicly notified; (ee) The construction, operation, maintenance, protection, upgrading or development of the National Grid; (e) (f) (g) (h) (i) The operation, maintenance, upgrading. and protection of existing aflehlew regionally significant infrastructure; The operation, maintenance and protection of Existing River Schemes and Land Drainage Schemes; The maintenance or enhancement of navigational safety in permanently navigable harbour waters; Use and development identified in Schedule 15 Offshore Islands; or Associated with maritime incidents and their management. Advisory Note: In the event of any inconsistency with the National Environmental Standards for Electricity Transmission Activities, the Standard prevails over any Rule in this Plan. NEW Rule SO 10A - Non-Complying - New Regionally Significant Infrastructure in an Indigenous Biological Diversity Area A or an Area of Outstanding Natural Character Occupation of any part of the common marine and coastal area: 2 Erection, reconstruction and placement of new structures: and MHH V2:ol

46 3 Use of new structures in the coastal marine area. associated with the construction and development of new regionally significant infrastructure in any Indigenous Biological Diversilv Area PI (as identified in Schedule 2. Table 1) or an Area of Outstanding Natural Character (as Identified in Appendix I to the Regional Policy Statement) is a non-complying activity. except where the structure or use is: (a) A permitted activity under Rules SO 4. SO 6. SO 6A. SO 7 or SO 8: or (b) A discretionary activity under Rule SO 10. Rule SO 14 Prohibited - New Structures in Indigenous Biological Diversity Area A or an Area of Outstanding Natural Character not otherwise provided for The erection, reconstruction, placement, alteration. or extension of any structure on the foreshore or seabed in any Indigenous Biological Diversity Area A (as identified in Schedule 2, Table 1) or an Area of Outstanding Natural Character (as identified in Appendix I to the Regional Policy Statement) is a prohibited activity, except where the structure is: (a) (a) A permitted activity under Rules SO 4 or SO 6; or A discretionary activity under Rule SO 10; or (b) A non-complying activity under Rule S010A or Rule SO 12. Policies Disturbance, deposition and extraction (DO) Policy DO 7 Activities that cause disturbance of the foreshore and seabed shall: (a) Be undertaken at times of the day or year and using methodologies, that will avoid significant adverse effects and remedy or mitigate other adverse effects on the environment, particularly on: (i) The feeding, spawning and migratory patterns of indigenous fauna, including bird roosting, nesting and feeding, and whitebait runs; (ii) Indigenous ecosystems and habitats that are particularly vulnerable to modification, including: estuaries, lagoons, coastal wetlands, dunelands, intertidal zones, rocky reef systems, eelgrass and saltmarsh; and (iii). Habitats of indigenous species that are important for recreational, commercial, cultural or traditional purposes, including traditional Maori gathering, collection or harvest of kaimoana; and 16 Regional Coastal Environment Plan

47 Advice note: (b) Ensure that the foreshore or seabed is, as far as practicable, reinstated in a manner which is in keeping with the natural character and visual amenity of the area; (c) Avoid significant adverse effects on biota caused by the release of contaminants; and (d) Be undertaken at times of the day or year, and using methodologies, that will avoid as far as practicable, remedy or mitigate adverse effects on : (i) Recreational use of the coastal marine area; and (ii) Other lawfully established activities in the coastal marine area. Policies NH4, NH 4A. NH5, NH11. and NH11A apply if an activity may have adverse effects on the values and attributes of an Indigenous Biological Diversity Area A (lbdm) identified in Schedule 2. Table 1. MHH V2:ol

48 Rule DD 12 Restricted discretionary - Maintenance of existing artificial watercourses or modified watercourses and the opening of natural stream mouths by the Regional Council and territorial authorities in significant indigenous biological diversity areas. The clearing or maintenance of existing artificial watercourses or modified watercourses and the opening of natural stream mouths in an Indigenous Biological Diversity Area A (as identified in Schedule 2, Table 1) and associated diversion of coastal water and where the purpose of the activity is not specified in Rule DO 17, is a restricted discretionary activity, subject to the following standards and terms: (c) (d) The works shall be carried out by the Regional Council, territorial authorities or their agents. The activity shall not damage or disturb a site listed in the Regional Historic Heritage Inventory in Schedule 7. The Regional Council restricts its discretion to the following matters: (e) (f) (g) (h) Duration of the consent. Information and monitoring requirements. The quantity, nature and composition of the material to be disturbed, dredged or deposited. Measures te a'/eiel, refreely er---miti 8te--a6ny adverse effects on indigenous flora, fauna, natural character or cultural values. (i) The location, design and method of disturbance, deposition, diversion or dredging. U) The frequency or timing of disturbance, deposition, diversion or dredging. For the avoidance of doubt, this rule covers the following matters: (i) (ii) (iii) Disturbance of foreshore and seabed, and disturbance or damage to vegetation and habitats, resulting from the dredging of existing artificial watercourses and modified watercourses. Diversion of water within existing artificial watercourses and modified watercourses. Opening up of existing artificial watercourses, modified and natural watercourses to allow free flow of water and drainage of water from land. Advisory Note: Heritage New Zealand Pouhere Taonga should be consulted regarding any proposal that may damage or destroy a historic heritage site. 18 Regional Coastal Environment Plan

49 Assessment Guidelines - Areas of significant cultural value When considering an application for a resource consent for activities within: Areas of Significant Cultural Value (in Schedule 6) ; or Other areas or sites of significant cultural value identified by Statutory Acknowledgments, Iwi / HapO Management Plans, or by evidence produced by tangata whenua and substantiated by pokenga, kuia and/or kaumatua; applicants and decision-makers are to have regard to the following matters"; (a) (b) (c) Effects on the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga, including whether proposed mitigation or remediation measures provide for this relationship. Refer to $6(e) RMA. RPS Policy IW 28 and RCEP Policy IW 1 and Policy IW ~ Ability of tangata whenua to perform their role as kaitiaki and demonstrate kaitiakitanga. Refer to $7(a) RMA. RPS Policy IW28(a)(ii) and RCEP Policy IW 1(b). Whether pokenga, kuia and/or kaumatua or other persons who have the specialist or technical knowledge necessary to apply the criteria in Appendix F. Sets 4 and 5 of the RPS. have assessed an historic heritage resource or Maori cultural relationships and values. Refer to RPS Policy IW 28, RCEP Policy IW 1fd), Policy IW 2, Policy IW 3 and RCEP Policy IW S. (d) (i) Adverse effects on the traditional Maori uses, practices and customary activities relating to natural and physical resources of the coastal environment - examples include mahinga kai. mahinga mataitai, wahi tapu, nga toka taonga, tauranga waka, taunga ika and taiapure. (e) (f) (g) (ii) Adverse effects on Areas of Significant Cultural Value identified in Schedule 6 and other areas or sites of significant cultural value identified by Statutory Acknowledgements, iwi and hapo resource management plans or by evidence produced by tangata whenua and substantiated by pokenga, kuia and/or kaumatua. Refer to RCEP Policy IW 1 (a) and (d). Effects on the mauri of the coastal environment. and whether and how effects on the mauri of natural resources should be monitored. Refer to RPS Policy IW S8(b) and RCEP Policy IW 7. Effects on the ability of tangata whenua to access sites used for cultural practices and areas of cultural significance. Refer to RCEP Policy IW 10. The consistency of a proposal with any relevant iwi or hapo resource management plan ; and recognition of tangata whenua values provided under any other legislation (such as Treaty ofwaitangi settlements, the Kaimoana Customary Fishing Regulations 1998 and the Marine and Coastal Area (Takutai Moana) Act 2011 ). Refer to RPS Policy IW 48 and RCEP PolicY IW 4. MHH V2:ol

50 (h) (i) Effects on the cultural and spiritual values associated with natural features and natural landscapes and the Maori cultural landscape, including cumulative effects. Refer to NZCPS Policy 15 and RCEP Policy NH 9A and IW l(e). Effects on habitats of indigenous species which are important for traditional or cultural purposes. Refer to NZCPS Policy 11 and RCEP Policy NH 9A. m Consistency of the proposal with the outcomes and recommendations of consultation with tangata whenua; iwi or hapu resource management plans or with the findings of a cultural impact assessment. (k) (I) Refer to RCEP Policies IW 4, IW 5 and IW 6 The extent to which matauranga Maori has been incorporated in the assessment of effects. Refer to NZCPS Policy 2Cc), RCEP Policy IW 1 Cc) and RCEP Policy IW 7 Whether a review condition is necessary to address unforeseen adverse effects on taonga, sites, areas, features or resources of significance or special value to tangata whenua. Refer to RCEP Policy IW 9A * The policy references provide further direction on how these matters are to be assessed Method 1A Investigate the establishment of a tangata whenua specialist practitioners group for the purposes of: (a) Assisting with implementation of Methods 1, 2A, 6, 14,17, 18, 18A and 19A (noting that this does not remove the requirement to consult with tangata whenua during a RMA Schedule 1 process); and (b) Assisting with the development of cultural health indicators to assist in monitoring the state of the region's natural and physical coastal environment. Implementation responsibility: Regional Council Method 2A Work with tangata whenua to incorporate matauranga Maori in the assessment of Maori cultural values and attributes comprising the elements of Outstanding Natural Character, Outstanding Natural Features and Natural Landscapes Indigenous Biological Diversity Areas and Areas of Significant Cultural Value in the coastal environment. Work with tangata whenua to develop a framework for assessment of effects on Maori cultural values and attributes. Implementation responsibility: Regional Council. Method 18 Work with tangata whenua to investigate classification of coastal waters as Class C - water managed for cultural purposes/other indicators of cultural health, and incorporate matauranga Maori in the classification and assessment of coastal waters where practicable to do so. 20 Regional Coastal Environment Plan

51 Implementation responsibility: Regional Council. Method 15 In conjunction with city and district councils and the Department of Conservation, support and administer community based programmes and Kaupapa Maori based initiatives that seek to: (f) (a) Educate those who manage, benefit from or use resources in the coastal environment about natural coastal ecosystems. (b) Increase community involvement, including and kaitiaki and whanau. in the management of the coastal environment, including beaches, dunes, harbours and estuaries. (c) (d) (e) Protect and enhance the natural character and biodiversity of the coastal environment. Improve the capacity of dune systems and other ecosystems to withstand coastal hazards and relevant climate change effects. Promote well-formed public access ways and restrict ad hoc access in sensitive environments, through provision of information, signage, education and involvement of communities and tangata whenua. Implement protocols with tangata whenua that have particular regard to the role of kaitiaki and pukenga in the management of coastal resources; (g) Promote tangata whenua needs for papakainga, marae, kura moana whare matauranga. whare wananga and associated developments in the coastal environment and facilitate provision for these developments where appropriate -- Commented [MHH2]: Yellow agreed. Blue (propsaed by Ngati Whakaue Ki Maketu) nat argeed Implementation responsibility: Regional Council. Method 17B: Regional Council will. on a case-by-case basis. consider the transfer and/or delegation of RMA functions. powers or duties. in relation to the management of those characteristics which have been identified in the CMA as being of special value to tangata whenua. Implementation responsibility: Regional Council. Method 19A: In consultation with tangata whenua : (a) Review Schedule 6 Areas of Significant Cultural Value ; (b) (c) (d) (e) Identify areas or sites in the coastal environment of significance or special value to Maori; Identify cultural landscapes and features in a manner consistent with Policy 15(c)(viii); Investigate the planning mechanisms and other methods available to provide protection to identified areas and sites and support customarv activities in ASCV; Investigate the planning mechanisms and other methods available to support the social. economic, cultural and MHH V2:al

52 (f) recreational aspirations of tangata whenua in the coastal environment; Identify options for providing for the expression of the relationship tangata whenua as kaitiaki have with their identified taonga such as water. wahi tapu and kaimoana. The review. identification and investigation should: (a) (b) (c) Incorporate matauranga Maori as directed by NZCPS Policy 2(c); Use the assessment criteria contained in the RPS Appendix F: Set Maori culture and traditions; and Give consideration to the most appropriate provisions in the Plan for addressing matters arising out of the review. Implementation responsibilitv: Regional Council. Method 21A: Regional Council will work with tangata whenua to identify those areas of the coast which may need to have public access limited. to protect significant iwi values that are vulnerable to disturbance. Implementation responsibilitv: Regional Council and tangata whenua. Definitions of terms used in the Regional Coastal Environment Plan: Cultural Landscapes: Tangata whenua have a distinct set of natural heritage values which are conceptualized within a distinct worldview. Cultural landscapes are characterized not only by natural and physical aspects. but also through place names and associated traditions and events that bind tangata whenua to their landscapes. just as the landscape is a part of tangata whenua. both the tangible and intangible. Such landscapes evoke whanaungatanga that link creation traditions with whakapapa. underpinning manawhenua manamoana. and giving body to kawa and tikanga. 22 Regional Coastal Environment Plan

53 CD.!! :::l "C Q) J: (J tj)

54 SITE NAME: ONGATORO/MAKETO ESTUARY, WAIHI ESTUARYIeS, AND--OKUREI POINT AND ADJACENT COASTLINE SITE NUMBER: ASCV-7 MAP SHEETS: 15b, 16b, ~ 7~ Kaituna River and Ongatoro/Maketo Estuary lie within the ancestral land of Te Arawa, which stretches from Mt Tongariro to the sea. Both are important to Te Arawa's tribal history and culture. The Commented [MHH3]: Yellow agreed. Bl ue (proposed by Ngati Whakaue ki Maketu) not agreed The Ongatoro/MaketQ Estuary is a regionally iml30rtant tauranga '... aka the finallaneling I3lace of the i\rawa canoe. Ongatoro is the tangata whenua name for the MakelU Estuary. The name comes from " ~Jgatoroira n gi " who 'Nas the esteemeel tohunga/navigator of the Te i\rawa 'Naka. Before the laneling of the waka at MaketQ, the taumau (Elisco'/ery of lanel) of Hei, Tia anel Tamatekal3ua took I3lace. The name MaketQ is a remineler of the fatherlanel Ha'Naiki, from '... here these early exl3lorers joumeyeel. The MakelU Estuary is a regio nally iml30rtant mahinga kai iwi refer to this area as the traelitional "fooel Bowl" of the Te Arawa l3eol3le. The MakelU Estuary is of immense cultural anel historical iml30rtance to Te Arawa ("mai MaketQ ki Tongariro" from MaketQ to Tongariro). Numerous l3a anel 97 mielelens have been 10cateEl on the lanel aeljacentto the estuary. Okurei Point is a 'Nahi taonga (13lace of great cultural significance) to all Te /\rawa tribes. The MaketQ Taial3ure local fishery '... as establisheel in 1999 uneler the Maori F"isheries Act 1989 to set asiele estuarine anel shoreline coastal fishing areas of sl3ecial significance to iwi or hal3q as a source of fooel or for sl3iritual or cultural reasons. The MakelQ Taial3ure area stretches from VlJairakei (Pal3amoa) in the west to Otamarakau in the east. Hiahiatanga I Whakaaronui 0 te Ilwi and hapo tuturu/customary Wa/Contemporary needs Esteem ary is of immense cultural Maketo Estuary is a and historical regionally important importance to Te mahinga kai - iwi refer to Arawa ("mai Maketo this area as the ki Tongariro" - from traditional "food bowl" of Maketo to Tongariro). the. Arawa people. Numerous pa and e+ middens have been located on the -- Nga Tikanga Whakahaere Taonga 0 Ngati Pikiao Whanui Iwi Resource Management Plan 1997 Ngati Whakaue ki MaketO Iwi Resource 24 Regional Coastal Environment Plan

55 Point is a wahi taonga (place of great cultural significance) to all Te Arawa tribes The Ongatoro/MaketO Estuary is a regionally important t.aiiu.raiin.g.a. w. aka ill the landing olace of the Arawa "Ngatoroirangi" was the esteemed tohungainavigator of the Te Arawa waka. Before the landing of the waka at MaketO, the taumau (discovery of land) of Hei, Tia and Tamatekapua took place The name Maketo is a reminder of the fatherland Hawaiki, from where these early explorers journeyed. was established in 1996 under the Maori Fisheries Act 1989 to set aside estuarine and shoreline coastal fishing areas of special significance to iwi or hapo as a source of food or for spiritual or cultural reasons. The MaketO Taiapure area stretches from Wairakei (Papamoa) in the west to Otamarakau in the east. Taunga ika moana: In the coastal waters there are a number of toka, reefs and other areas used as fishing grounds. Examples of taonga species in ASCV 7 are: Shellfish: Pipi. Tuangi (Venus Shell), POpO (Cat's eye), Titiko (mudsnail), Tio (rock oyster), Tupa (Queen scallop), Kuakua (scallops), Toheroa, ~ (mussels), Niania (black mussel), Kaura (crayfish), (Tuatua), (paddle crab) Kahitua Papaka Echinoderms: Kina (sea urchin) Management Plan Phase Ngati Rangitihi Iwi Environmental Management Plan 2011 Taouika Environmental Management Plan 2014 Waitaha Iwi Management Plan 2014 MHH V2:ol

56 (ocean bream), Kahawai, Tamure (Gilthead sea bream), Takeke (Garfish), KU!1aru (John DolY), Inanga (whitebait), Tuna (eel), Haku (Kingfish), Kataha (yellow-eyed mullet), KU!1ae (s!1rat) 26 Regional Coastal Environment Plan

57 f.- r,. "'j\ J' :i~ i" " ~.,l I c'ff /O G~ fi ~ :2 a>r ~ ~ I..II:: fi J ~ ='1 I l l~ I ~~ «:E ' I ~ I I~ I " I ' I - I ) 0 I i - I I J z,...! I lit ll! 1.1' ~111 d I} I l' J