BEFORE THE ENVIRONMENT COURT ENV-2018-AKL-000078

I MUA I TE KOOTI TAIAO O AOTEAROA

IN THE MATTER of the Resource Management Act 1991

(RMA)

AND

IN THE MATTER of direct referral of an application for

resource consent for the necessary

infrastructure and related activities

associated with holding the America’s Cup

in Auckland

BETWEEN PANUKU DEVELOPMENT AUCKLAND

LIMITED

Applicant

AND AUCKLAND COUNCIL

Respondent

REBUTTAL EVIDENCE OF ANDREW BROWN ON BEHALF OF MANA WHENUA IN

SUPPORT OF AC36

Rob Enright Barrister Magdalene Chambers Level 1, 28 Customs St East Britomart Auckland m: 021 2765787 e: rob@publiclaw9.com

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1 Scope of Rebuttal

1.1 My name is Andrew Brown. I have the qualifications and experience stated in my

primary evidence. I confirm that I have complied with the Expert Code of Conduct in

preparing this evidence; and I adopt the qualifiers stated in [1.3]-[1.4] of my primary

evidence.1

1.2 I acknowledge that the Court has identified the relevant mana whenua issues in its

minute dated 31 August 2018. This rebuttal evidence responds to the planning

evidence of Luke Faithfull, and is limited to the wording of proposed condition 5.2

2 Matters Outstanding

2.1 Mr Faithfull, at paras 4.4-4.53 identifies a suite of Unitary Plan provisions applicable to

mana whenua. I concur that these are the relevant provisions.

2.2 At 4.10, Mr Faithfull contends that the proposal fails the s.104D ‘gateway’ test on the

basis that cultural effects have not been adequately identified or mitigated. He goes

on (para 4.11) to conclude that this can be remedied by the application of “appropriate

consent conditions”.4

2.3 In terms of cultural effects, Mr Faithfull concludes that such effects as have been

identified (4.6) can also be addressed by “robust, mana whenua focused consent

conditions”.5

2.4 I concur with Mr Faithfull that outstanding matters of concern are amenable to remedy

by condition – where we part company is in the nature of what is “appropriate” in terms

of such conditions, specifically condition 5.

3 Matters of Contention

The forum

3.1 It is common ground that a mana whenua forum is needed for ongoing engagement.

The key matter of contention is the nature of that forum.

3.2 Panuku proposes the existing Auckland Council Mana Whenua Kaitiaki Forum

(ACMWKF). The Mana Whenua Parties in Opposition and Mr Faithfull consider that a

new forum should be established comprising members drawn exclusively from Ngā

Mana Whenua o Tāmaki Makaurau Collective (Tāmaki Collective).6

3.3 In my opinion, the Auckland Council Mana Whenua Kaitiaki Forum is the appropriate

vehicle. This is for the following reasons:

Remit

3.4 The Tāmaki Collective settlement deed excludes cultural redress for the Waitematā; it

is not part of the scope of settlement. This is confirmed by Clause 10.1.1. of the Ngā

1 Evidence bundle p2300 2 The most recent version of condition 5, used for the purpose of this statement is presented in the Evidence in Chief of Cook/Lala (Planning), Attachment A. 3 Evidence bundle p2521-2523 4 Evidence bundle p2525 5 Evidence bundle p2523 6 As identified in section 9 of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014

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Mana Whenua o Tāmaki Makaurau Collective Deed (the Tāmaki Collective Deed).

This is a legal issue that will be addressed by Counsel.

Inclusivity

3.5 The evidence of Mr Blair, Dr Patterson and Professor Williams make clear that the

primary or lead mana whenua interest in the subject area is with Ngāti Whātua Ōrākei.

Ngāti Whātua Ōrākei has reserved its position on the issue of exclusivity, and does not

seek any findings from the Environment Court on this issue.

3.6 Ngāti Whātua Ōrākei, with the support of Ngāti Paoa and Te Kawerau a Maki,

acknowledges that AC36 is a matter of regional (and national) interest. It is therefore

appropriate to adopt an inclusive approach to iwi members that may join the AC36

forum. The Tāmaki Collective consists of 11 iwi authorities. There are however 19 iwi

authorities in the Auckland region; the consent condition as worded by Panuku

therefore allows for all iwi authorities (whether members of the Tamaki Collective or

not) to be involved in the engagement process under proposed condition 5.

Efficiency

3.7 There are already several mana whenua fora in existence in Auckland. To add yet

another creates duplication and is unnecessary.

3.8 AC36 is not taking place in isolation. There are several other “live” proposals in the

vicinity, including the Westhaven Marina redevelopment, the “Dolphin” mooring

extension at Queens Wharf, and a suite of infrastructure projects in the downtown

area. These projects are led variously by Panuku, Auckland Transport and the

“Healthy Waters” department of Auckland Council. It seems sensible in the interests of

integrated resource management that a single mana whenua forum be capable of

considering all these proposals together.

Summary conclusion

3.9 In light of the above factors, the Mana Whenua Parties in Support consider that the

existing Auckland Council Mana Whenua Kaitiaki Forum (ACMWKF), as proposed in

condition 5 as drafted, is the most appropriate vehicle for ongoing mana whenua

engagement.

3.10 I concur with this view for the following reasons:

a) The ACMWKF is already established – there is no duplication of effort and

resources required;

b) No lead in time is required to establish a new forum. This is significant given the

tight time frame for implementing AC36;

c) The AC36 proposal is squarely within the remit of the ACMWKF. The full terms of

reference are attached for reference. Of particular note, clause 9 (the purpose of

the ACMWKF) is:

…to support Mana Whenua entities give effect to their responsibilities as Kaitiaki in

an efficient and effective manner, with a focus on significant issues and

opportunities affecting people in Tāmaki Makaurau.

Whilst the scope includes (clause 10):

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b) Working directly and through working groups with Auckland Council group

and Government agencies and representatives to address matters of national and

regional significance where these affect multiple Mana Whenua entities in the

Council area to advance a Treaty of Waitangi-based relationship (emphasis added)

d) The ACMWKF has a rational basis for deployment – it is founded in existing

council policy in mana whenua engagement and draws its membership from each

of the 19 Mana Whenua entities recognised by Council as having interests in the

area.

Legacy proposal (the cultural centre)

3.11 There is general consensus among mana whenua (both in support and opposition)

regarding the desirability of a cultural centre as an appropriate cultural offset. This is

also agreed with the applicant.

3.12 There is disagreement, however, on the most appropriate means to secure this legacy

in the terms of the current resource consent application. Mr Faithfull in paragraph 5.30

of EiC supports the cultural centre, subject to the following:

a) Appropriately acknowledge and provide for the relationship of all iwi and hapū

subject to the Collective Act given Part 10 of the Collective Deed acknowledging the

spiritual, ancestral, customary and historical significance of the Waitematā to these

mana whenua; and

b) It needs to be provided for as a consent condition to confirm Panuku’s

commitment to provision of the cultural centre. (Faithfull, EiC 5.30)7

3.13 With regard to point (a), I note that if condition 5 remains as proposed then the

Auckland Council Mana Whenua Kaitiaki Forum includes (but is not limited to) the iwi

and hapū subject to the Tāmaki Collective Act.

3.14 With regards point (b), I restate my own observation in EiC (Brown, EiC 5.168) that the

cultural centre could not reasonably be required by condition of consent as it would

require a consent in its own right. I note also that Mr Faithfull declines to offer a

suggested wording in this respect (Faithfull, EiC 5.319).

Dated 4th September 2018

Andrew Brown

7 Evidence bundle p2535 8 Evidence bundle, p2305 9 Evidence bundle p2535

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TERMS OF REFERENCE

JULY 20161

Background

1. The Mana Whenua Kaitiaki Forum (the Forum) was established in 2012 by Mana

Whenua entities with interests in the Auckland Council (Council) area and Watercare

Services Limited (Watercare).

2. The Forum, Council, Council Controlled Organisations (CCOs) and government

agencies have moved the agenda of the Forum beyond water issues, reflecting a wide

ranging desire to engage with Mana Whenua entities jointly as well as individually.

3. In January 2016 the Forum resolved to expand its mandate to reflect its evolving role in the region. The new mandate enables the Forum to consider issues and opportunities of regional and national importance as set out in the scope of this document. The new mandate is to be implemented from 1 July 2016.

4. These terms of reference reflect the evolving and continuing role of the Forum and do not represent a new start. However, from 1 July 2016 Watercare will no longer be a member of the Forum.

Limited Role and Membership

5. The Forum does not represent or act on behalf of the individual Mana Whenua entities with interests in the Council area. Each Mana Whenua entity retains its autonomy.

6. Membership of the Forum is open to each of the nineteen Mana Whenua entities listed in Appendix 1 with interests in the Council area, or their successor entity.

7. Membership of the Forum will be supported by a letter from the Chair of the respective Mana Whenua entities.

8. Each participating Mana Whenua entity can appoint one representative to the Forum

and one alternate representative. These representatives must be able to make

decisions at Forum meetings on behalf of the entity they represent, for items where the

proposed decision is identified on the notified meeting Agenda.

1 Including changes adopted at 14 July 2016 Forum meeting

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Purpose

9. The purpose of the Forum is to support Mana Whenua entities give effect to their

responsibilities as Kaitiaki in an efficient and effective manner, with a focus on

significant issues and opportunities affecting people in Tāmaki Makaurau.

Scope

10. Within scope:

a) Identification of significant issues and opportunities as Kaitiaki (Mana Whenua) that affect the cultural, social, environmental and economic wellbeing of people in the Council area and the provision of guidance on how to address these issues

b) Working directly and through working groups with Auckland Council group and Government agencies and representatives to address matters of national and regional significance where these affect multiple Mana Whenua entities in the Council area to advance a Treaty of Waitangi-based relationship

c) Establishing and seeking resourcing for a work programme that enables the Forum to advance Mana Whenua in the Auckland Council area

d) Engagement with private sector parties where this helps achieve the purpose of the Forum

e) To enable economic opportunities for all participating entities through relationships

11. Out of scope:

a) Treaty of Waitangi claims

b) Limiting the rights or obligations of any individual Mana Whenua entity

No Liability

12. The Forum will not take on any liabilities on behalf of its members or funders, nor will it impose any liabilities on any of its members or funders (Refer Appendix 2). In particular the Forum will not:

a) Act on behalf of any Mana Whenua entity or Mana Whenua entities

b) Take on any legal or financial liabilities

c) Act in a way that imposes legal or financial liabilities on its member Mana

Whenua entities or its funders

d) Hold any assets

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Chairs

13. The Forum shall elect from among its members two Co-Chairs.

14. Either or both Chairs shall preside at each meeting of the Forum where they are present.

15. The Chairs shall have a term of twelve months and are eligible for re-election with no limit on the number of consecutive times they may be elected.

16. Election of the Chairs is to occur at a general meeting of the Forum to be held between 1 July and 30 July each year, or at the next general meeting of the Forum after July.

17. Notice of the meeting at which the election of the Chairs will occur is to be notified to each Forum member entity no less than 14 days in advance of the election.

18. The Chairs will be elected by simple majority of those present who are eligible to cast a vote, with only one person voting from each of the Mana Whenua entities eligible to vote.

19. The election method shall be:

a) Election of the Chairs will be an item on the Agenda of the general meeting

b) An independent facilitator will invite nominations from the meeting for the Chairs positions, only individuals who are representatives of a Mana Whenua entity listed in Appendix 1 of this document can be nominated and individuals can nominate themselves

c) The independent facilitator will then call for a vote on each of the nominated individuals by those members present or the alternate (but not both) being asked to raise their hand to show a vote for the individual being voted on. Each member or alternate present (but not both) can vote for two individuals

d) If there is a tied vote further votes will be called for the tied individuals only until a winner is achieved

e) Proxy votes can be cast so long as the proxy authority is provided in writing and is shown to the independent facilitator at the meeting

f) Once the election is complete the new Chairs will take over immediately as Chairs of the meeting and exercise the responsibilities of the Chairs as set out in these Terms of Reference

20. The responsibilities of the Chairs are listed in Appendix 3.

Quorum

21. A quorum exists if ten or more of the Mana Whenua entity members of the Forum are represented, including one of the Chairs.

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22. If seven, eight or nine of the Mana Whenua entity members of the Forum are represented, including one of the Chairs, the meeting can consider the business on the Agenda but no voting can occur.

Consensus and Voting

23. The Forum will seek to achieve consensus on issues and to reflect the diversity of views

held by representatives.

24. From time to time the Chairs of the Forum can call for a vote to determine the

preference of the meeting and to make a decision if a decision needs to be made to

advance the work programme.

25. If a vote is called each Mana Whenua entity can cast only one vote. No proxy votes can

be cast, except when electing the Chairs.

26. Members are required to identify any conflicts of interest before a vote is cast, which will

be recorded in a Register of Interests.

Disputes

27. The Forum has a limited role and scope, and will not address disputes that do not arise

as a direct result of a decision, resolution or action taken by the Forum or its Chairs.

28. If a dispute arises between members of the Forum as a direct result of a decision,

resolution or action taken by the Forum or its Chairs the following procedure will apply:

a) The Forum Chairs will bring the parties together to seek a resolution

b) If a) does not work or the parties believe an independent person should be involved, including if one or both of the Chairs are party to the dispute, then the parties can at their own cost work with a suitable third party to try and resolve the issue

c) The Forum Chairs, at their discretion can refer the matter to a meeting of the Forum for its consideration and advice

Work Programme and Resourcing

29. The Forum will seek to agree a funded and resourced work programme with the Auckland Council group and any other funding parties before 1 July each year (Refer Appendix 4).

30. The Forum will consider establishment of work groups to help advance the work programme and to provide the Forum with sound advice (Refer Appendix 5).

31. Remuneration of Forum members, their alternates and working group members will be agreed with funders from time to time with reference to the approach set out in Appendix 6.

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Review

32. The Forum will annually review its performance against its Strategic / Kaitiaki Plan and funded work program. The review might include input from funders and other key stakeholders

Changing the Terms of Reference

33. The Forum can change the text of the Terms of Reference using the following

process: A request to change the Terms of Reference must be raised at a general

Forum meeting and if the meeting resolves to consider the change then:

a) A letter must be sent to the Chairs of the member Mana Whenua entities stating that a change to the Terms of Reference has been sought, the text of the change, the reason for the change and a statement of the likely impact on the role of the Forum

b) The letter to the Chairs of the member Mana Whenua entities must allow at least 20 working days between the letter being sent and the matter being considered further by the Forum

c) The proposal to change the Terms of Reference is to be an item on the Agenda of the next or subsequent general meeting of the Forum (from when the letter is sent) and is to be voted on at that meeting

d) A proposal to change the Terms of Reference will only be accepted if 60 percent or more of members vote in favour of the change

34. The Forum will only address changes to the Terms of Reference a maximum number of two times in a twelve month period from 1 July to 30 June.

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Appendix 1 Mana Whenua Entities

1. Makaurau Marae Māori Trust

2. Ngā Maunga Whakahii o Kaipara Trust

3. Ngai Tai Ki Tāmaki Tribal Trust

4. Ngāti Manuhiri Settlement Trust

5. Ngāti Maru Rūnanga Incorporated

6. Ngāti Rēhua – Ngāti Wai ki Aotea Trust

7. Ngāti Tamaoho Trust

8. Ngāti Paoa Iwi Trust

9. Ngāti Tamaterā Settlement Trust

10. Ngāti Wai Trust Board

11. Ngāti Whanaunga Incorporated

12. Ngāti Whātua Ōrākei Trust

13. Te Akitai Waiohua Iwi Authority

14. Te Ara Rangatū o Te Iwi o Ngāti Te Ata Waiohua

15. Te Kawerau Iwi Tribal Authority

16. Te Patukirikiri Incorporated

17. Te Rūnanga o Ngāti Whātua

18. Te Uri o Hau Settlement Trust

19. Waikato-Tainui Te Kauhanganui Incorporated

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Appendix 2 No Liability

The Forum will not take on any liabilities on behalf of its members or funders, nor will it impose any liabilities on any of its members of funders. In particular:

The Forum’s involvement in Resource Management Act and other legal proceedings will be limited. The Forum will not oppose projects where it might face costs; this type of action would be the responsibility of individual Mana Whenua entities. The Forum is able to make submissions on matters of interest to it but will limit the extent of that action to avoid any legal or financial liabilities.

The Forum will not be an employer. Any staff committed to supporting the Forum would need to be employed and / or contracted by, for example Council. On a day-to-day basis staff could report to the Chairs of the Forum. However, the ultimate employer – employee relationship would be with Council.

The Forum will not formally hold any contracts to deliver analysis or reports. A funder, such as Council, might seek analysis on, for example, the practical application of Te Mana o Te Wai as set out in the National Policy Statement Freshwater Management. The Forum could lead the delivery of this work, including deciding on appointment of any consultants. However, the contractual relationship and payment of fees would be between Council and those to be paid. Prior to payment being made the Forum would agree that the work had been delivered to a satisfactory standard.

The Forum will not lease an office or associated equipment. Any such operating requirements would need to be provided by a funder, such as Council.

Appendix 3 Chairs

1) It is intended that the Chairs of the Forum have an executive Chair role limited to the following:

The Chairs are able to meet with representatives of public and private sector groups and express views on behalf of the Forum to help advance programmes and projects

The Chairs are able to make decisions as to how the Forum work programme should be given effect, so long as those decisions are consistent with the direction and any resolution of the Forum

The Chairs are responsible for finalising the Agenda for each meeting

The Chairs are responsible on a day-to-day basis for directing any staff that are supporting the Forum, whether the staff are part of a paid secretariat or contracted for a specific task

The Chairs are able to attend each working party meeting

2) The Chairs shall agree together how to divide their responsibilities

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Appendix 4 Delivery of the Work Programme

1) The Forum will agree an annual work programme and a ten year Kaitiaki - Strategic Plan with the Auckland Council Group. Other parties, such as government agencies can participate in this, and if so there is an expectation that they will contribute resources proportional to the benefit they could receive.

2) The work programme and its resourcing should be agreed before 1 July each year.

3) The work programme will identify the outcomes the Forum is seeking to achieve for the year and the key steps to meet the outcomes.

4) The Kaitiaki - Strategic Plan will set out the longer term goals of the Forum and the key steps to meet those goals. The Kaitiaki - Strategic Plan will be updated three yearly in parallel to the Council’s Long Term Plan review.

5) The Forum might establish working groups from time to time to help deliver the work programme. These working groups will develop sound, evidence-based advice for the Forum, drawing upon topic experts from outside the Forum as necessary.

6) It is intended that the working groups have a small membership based on relevant skills and expertise; i.e. it is not intended that each Mana Whenua entity represented on the Forum has a representative on each of the working groups.

7) It is intended that the working groups are in existence for a number of years so that they can develop their expertise on matters of significance.

8) Project-focused groups might also be established by the Forum to address specific issues or opportunities.

Appendix 5 Working Group Terms of Reference

1. The Forum will consider establishing working groups from time to time to help advance the Forum’s purpose. Each working group will be accountable to the Forum.

2. Each working group will be given a specific responsibility and terms of reference at its establishment, including whether the group has a coordinator.

3. The Forum Chairs are able to attend all working group meetings.

4. It is intended that working groups be established to provide expert advice to the Forum on significant issues / opportunities and as such it is anticipated they will operate for a number of years.

5. The working groups will have a key role as places where joined-up thinking about the whole topic occurs; for example, water is generally considered as a number of separate parts – harbours, oceans, fisheries, stormwater, drinking water, wastewater, etc. The working group would become the place where each topic is considered in an holistic manner.

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6. Working group members will be selected on a skill basis and it is not necessary for members to be Mana Whenua. It is intended that each working group become expert on its subject and provide expert advice to the Forum. This might take a number of years.

7. It is anticipated that each working group be supported by relevant subject matter experts resourced as part of the work programme.

8. There might also be short term project groups established as necessary and if this happens each project group will be given terms of reference also.

Appendix 6 Remuneration

1) All remuneration is subject to funding and can be reviewed with funders from time to time at the request of either the Forum or a funder.

2) Remuneration should reflect the following:

The Forum is to bring together senior representatives of Mana Whenua entities and resourcing should reflect this seniority

The working groups are to comprise individuals with relevant skill and expertise and resourcing should reflect this

3) Payments will be made to the entity represented at the Forum or working group not to individuals

4) A day rate will be agreed for Forum meetings and working group meetings, reflecting the expectation that each meeting will in effect require a day-long commitment

5) Hourly rates will be agreed for members of project-focused groups

6) Payments will be made for attendance at meetings; no attendance no pay

7) Only one person per entity will be paid for Forum meetings; if more than one person attends a meeting from an entity payment will not increase. For working groups the working group members will be paid regardless of whether there is more than one member from a Mana Whenua entity

8) It is anticipated that Council will act as ‘banker’ for the Forum. Payments will only be made on receipt of a GST invoice from the relevant Mana Whenua entity and the correct purchase order will be required to be noted on the invoice

9) Subject to confirmation with funding groups and budget it is anticipated that remuneration will be:

The Chairs roles will be funded approximately 0.25 FTE, with the fee referenced to the fee paid to a Chair of a senior Council committee (approximately $120,000 in 2016 for a full FTE). The Chairs will not receive additional meeting fees but can invoice for travel at $0.77 / km plus GST

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$1,000 per Forum or Working Group meeting, plus $0.77 / km travel plus GST, with parking costs ‘bundled’ into the day rate

$150 per hour for members of project-focused groups, plus $0.77 / km travel plus GST, with parking costs ‘bundled’ into the hourly rate

10) Additional time spent by Mana Whenua entity representatives on meeting preparation, etc. will not be funded by Council or its CCOs unless by special arrangement as this forms the in-kind contribution of Mana Whenua entities

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