The expansion of Port Tauranga continues to hit legal snags. Photo / NZME
A company that dragged local iwi and hapū through years of litigation only to walk away at the eleventh hour has been ordered to pay for the cultural work it failed to do itself.
In a recently released Environment Court ruling, the court said Ports of Tauranga (POTL) must compensate them for the “wasted effort” of preparing and presenting cultural evidence the company should have addressed from the outset.
“The participation of hapū was essential to the court’s understanding of the cultural, social and environmental effects associated with the proposed expansion,” Judge David Kirkpatrick wrote.
“The applicants participated in good faith, despite their limited resources and relying heavily on the voluntary commitment and sustained efforts of hapū members for which they were not paid.”
It is the latest in a long-running dispute over the proposed expansion of the ports of Tauranga, which included land reclamation, wharf extensions and additional dredging.
The case began in 2021 when POTL lodged a resource consent application with the Bay of Plenty Regional Council to expand its operations at Sulphur Pt and Mount Maunganui.
The council determined that limited notification to iwi and hapū was not required.
Despite that, several iwi groups entered the process, and POTL funded close to $1 million in legal and technical support for some participants.
But the court found this funding did not change the fact that iwi were obliged to participate in a direct‑referral hearing they did not initiate.
“It is clear that the applicants would not have incurred these costs had POTL not initiated the direct referral process,” Judge Kirkpatrick said.
“The level of expenditure associated with preparing evidence could have been substantially reduced had POTL consulted with tangata whenua in preparing its application.”
The case proceeded to a hearing in early 2023, which ran for almost a month, and was followed by two interim decisions.
In December 2024, the Sulphur Pt expansion was provisionally approved pending revised conditions.
But before those conditions were revised, POTL withdrew its RMA application in May last year and instead pursued a fast-track approval.
That application is before the fast-track expert panel.
The RMA withdrawal left many groups, particularly smaller entities, including kuia or kaumātua witnesses, out of pocket.
POTL argued it had already paid $977,362.32 for iwi participation for planning, legal and cultural expertise and no further costs should be awarded.
In a joint reply, Ngāti Ranginui Fisheries and Ngāti Ranginui Iwi Trust said the cost of time spent by a trustee, kaumātua, kuia or other member should be eligible for cost recovery.
“Otherwise, all ‘iwi and hapū time’ would be unrecoverable, other than those of their experts and lawyers,” they said.
They also submitted that trustees, kaumātua or kuia were not invoicing as per a Western model, rather they were being guided by the kaupapa.
The court agreed with the iwi’s position.
Judge Kirkpatrick said the port funding some work did not negate the unpaid cultural labour done by others.
“The kaumātua, kuia and other iwi and hapū members who actively participated in the proceedings represented their iwi and/or hapū as experts on the cultural matters before the Court,” he said.
“Their role is more analogous to that of in‑house counsel or in‑house experts.
“There is no principled reason why, as experts on cultural matters, iwi and hapū should be precluded from any consideration of costs in respect of their time preparing for and giving evidence.”
He added the law recognises the specialist knowledge iwi and hapū hold regarding tikanga, mātauranga Māori, and their relationship with ancestral lands and waters.
“The Court has long relied on the expertise of iwi and hapū when assessing the cultural impacts of proposals that come before it, which are not confined to physical impacts but also encompass adverse effects on tikanga and mātauranga and limitations on rangatiratanga and kaitiakitanga.”
A hinge point in the court’s decision focused on POTL’s failure to adequately address cultural effects in its original application.
The court found POTL had not clearly explained how kaitiakitanga would be upheld or how mātauranga Māori would be incorporated into its proposal.
This forced iwi to prepare extensive evidence to fill in the gaps of the incomplete application.
“I consider that an award of costs above the standard level would be appropriate to reflect and compensate for their wasted effort in presenting evidence about cultural and social effects, which were poorly treated in POTL’s case, which was through no fault on their part,” the judge said.
The court also found POTL’s late withdrawal was an aggravating feature given the years of engagement and two interim decisions.
“The applicants participated in the direct referral process only for there to be no conclusion to it,” the judge said.
“These efforts may now need to be repeated through the fast‑track process.”
POTL was ordered to pay a further $298,023 in tangata whenua fees.
Neither party responded to NZME’s requests for comment.
Shannon Pitman is a Whangārei-based reporter for Open Justice covering courts in the Te Tai Tokerau region. She is of Ngāpuhi/ Ngāti Pūkenga descent and has worked in digital media for the past five years. She joined NZME in 2023.