Hart v Marlborough District Council
[2025] NZHC 47
•3 February 2025
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CIV-2023-406-16
[2025] NZHC 47
UNDER Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review
BETWEEN
CALVIN TUI HART, JANIS BARBARA DE THIERRY, HAYSLEY KENNY MACDONALD, RIKI RAYMOND
PALATCHIE, KEELAN MURRAY JAMES WALKER, PETER NATHAN MEIHANA AND WIRIHANA MICHELLE DE
THIERRY-LUKITAU
ApplicantsAND
MARLBOROUGH DISTRICT COUNCIL
Respondent
Hearing: 28 and 29 May 2024 Appearances:
M J Radich and S A Wadworth for Applicants
S V McKechnie, M G Wakefield and S L Gwynn for Respondent
Judgment:
3 February 2025
JUDGMENT OF McQUEEN J
HART, DE THIERRY, MACDONALD, PALATCHIE, WALKER, MEIHANA AND DE THIERRY-LUKITAU v MARLBOROUGH DISTRICT COUNCIL [2025] NZHC 47 [3 February 2025]
Table of Contents
Para Nos
Introduction [1]
Background [7]
Historical background [7]
The development of the Bylaw [11]
The Bylaw [23]
The Bylaw’s effect on Rangitāne [29]
Overview of the parties’ positions [33]
Rangitāne [33]
The Council [36]
Evidence [37]
The issues [38]
What is the nature of the Council’s obligations under the Treaty of
Waitangi? [42]
The delegation argument [53]
The statutory context [64]
Did the Council breach its obligations under pt 6 of the Local
Government Act? [82]
Section 76 [87]
Section 77(1)(c) [88]
Section 78(1) [116]
Section 79 [120]
Section 80 [128]
Section 81 [136]
Section 82 [147]
Sections 83(1)(a) and 83AA(a) [155]
Conclusion [160]
Was the decision procedurally unjustified? [162]
Breach of legitimate expectation of proper consultation and taking relevant
information into account [163]
Differential basis of consultation between Rangitāne and Ngāti Kuri [169]
Was there apparent bias given a Ngāti Kuri representative was on the
Hearing Panel? [183]
Was the decision based on a material error of fact? [188]
Was the decision based on a material error of law? [193]
Conclusion [195]
Result [196]
Costs [197]
Introduction
[1] The applicants in this proceeding are the trustees of Te Rūnanga a Rangitāne o Wairau Trust, a charitable trust which is the legal representative of the Rangitāne o Wairau iwi (Rangitāne).
[2] In March 2023, the Marlborough District Council (the Council) adopted the East Coast Beach Vehicle Bylaw 2023 (the Bylaw). The Bylaw limits (in considerable part prohibiting) the use of motorised vehicles along some of the north-eastern coast of Te Wai Pounamu | the South Island (the Bylaw Area). Rangitāne have recognised customary interests in the Bylaw Area. Rangitāne say the Bylaw prevents iwi members from exercising customary rights and responsibilities in the Bylaw Area.
[3] Rangitāne challenges, under the Judicial Review Procedure Act 2016 and the Bylaws Act 1910:
(a)the lawfulness of the Bylaw; and
(b)the lawfulness and procedural fairness of the decision by the Council to adopt and implement the Bylaw.
[4] Rangitāne ask the Court to grant relief by amending the Bylaw so that it does not apply to Rangitāne when they are exercising customary rights in the Bylaw Area.
[5] Rangitāne were unsuccessful in an application for interim relief.1 This judgment determines their substantive claim, which is opposed by the Council.
[6] I dismiss the claim. I conclude that the Bylaw is lawful and the challenges to the lawfulness and procedural fairness of the decision by the Council to adopt and implement the Bylaw are not made out. This is with the exception of a breach of a legitimate expectation; however, I consider it is not appropriate to grant a remedy in the circumstances.
1 Hart v Marlborough District Council [2023] NZHC 2714 [Interim Decision].
Background
Historical background
[7] Rangitāne have resided in Te Tau Ihu (the northern South Island) for centuries, occupying a territory from Waiau-toa | Clarence River in the south to Wairau | Marlborough, including the Nelson Lakes, and north to Kaituna and the Marlborough Sounds and west into the Whakatū | Nelson area.
[8] From 1839 onwards, actions of the New Zealand Company and the Crown progressively deprived Rangitāne of their land until Rangitāne were effectively rendered landless. In 2008, the Waitangi Tribunal reported that this deprivation was invalid in both British and Māori law as well as being inconsistent with te Tiriti o Waitangi | Treaty of Waitangi (the Treaty of Waitangi or Treaty).2 On 4 December 2010, Rangitāne entered into a Deed of Settlement with the Crown. The settlement legislation gives effect to the settlement of all historical claims from Rangitāne resulting from acts or omissions by the Crown prior to 21 September 1992.3
[9] Rangitāne are engaging with the Crown in relation to recognition of their customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011 and have filed a claim in the High Court to this end. It is common ground between the parties that Rangitāne have fishing rights recognised in statute.4
[10] There are other iwi throughout the Marlborough region including Ngāti Kuri, a hapū of Ngāi Tahu, represented by Te Rūnanga o Kaikōura and Te Rūnanga o Ngāi Tahu. Rangitāne and Ngāti Kuri/Ngāi Tahu contest the nature of their respective customary associations with the Bylaw Area, and this has arisen in other contexts identified by Rangitāne.5
2 Waitangi Tribunal Te Tau Ihu o Te Waka a Maui Report on Northern South Island Claims
(Wai 785,2008).
3 Ngāti Apa ki te Rā Tō, Ngāti Kuia, and Rangitāne o Wairau Claims Settlement Act 2014.
4 Treaty of Waitangi (Fisheries Claims) Settlement Act 1982.
5 See for example, Te Tau Ihu o Te Waka a Maui – Preliminary Report on Te Tau Ihu Customary Rights in the Statutory Ngāi Tahu Takiwā Wai 785 Waitangi Tribunal Report 2007 at 197.
The development of the Bylaw
[11] On 14 November 2016, a significant earthquake occurred 60 kilometres west of Kaikōura, resulting in an extensive uplift of land on the east coast of the South Island, within the Marlborough District. This made the beach in that area more accessible to vehicles (although the extent of accessibility prior to the earthquake is contested between the parties).
[12] Following concerns raised by residents of the Marlborough District, particularly the East Coast Protection Group (ECPG), as to potential impacts from the increase in the use of vehicles on public beaches, the Council began an investigation into the impacts of the earthquake, undertaking policy assessments in respect of what tools were available to protect the area.
[13] Following a technical workshop held by the Council and the Department of Conservation (DoC), on 22 March 2019, the Council released the first version of a report entitled “Marlborough’s East Coast – Technical Report” (the Technical Report or Report). The purpose of the Technical Report was to form, with other documents, the “basis for consultation and decision-making on what if any intervention is required to protect the values and significant habitats that are present along Marlborough’s East Coast Environment”.
[14] In the ‘cultural values’ section of the first version of the Technical Report, the status of Rangitāne within Marlborough is described as one of “long standing connection”, while Ngāti Kuri is described as having mana whenua. Ngāti Kuri were invited to draft the cultural values section of the fourth version of the Technical Report, released on 24 June 2021. This section of the report says “Ngāti Kuri are the tangata whenua who have mana whenua and mana moana” in the Bylaw area, and that Rangitāne and two other iwi “have interests in the area”. This section was preceded by a disclaimer that Ngāti Kuri (through Te Rūnanga o Kaikōura) had provided the information for that section. The fifth and final version of the Report, completed in July 2021, was amended somewhat following concerns raised by Rangitāne. This version did not specifically refer to Rangitāne but acknowledged that “there are Te Tau Ihu iwi who may consider the area of the draft Bylaw within their rohe as tangata
whenua” and that “these discussions are ongoing”. Rangitāne contested these descriptions throughout the development of the Bylaw.
[15] In November 2019, the Council, having prepared an Options and Issues Paper and considered possible regulatory solutions available to it in relation to vehicle access to the East Coast, decided to commence a bylaw-making process. From about this time, Rangitāne expressed concern to the Council as to their lack of involvement in the process and the fact that it appeared to be progressing on the basis of a misunderstanding as to their cultural status in the area. The Council engaged with Rangitāne and other iwi during 2020, during which Rangitāne put their position on the proposed bylaw to the Council. At a meeting on 10 December 2020, the Council decided that a bylaw was the most appropriate option to address the identified risks.6 A draft bylaw and necessary supporting material were prepared.
[16] On 8 July 2021, the Council published a Statement of Proposal, which included a draft bylaw that imposed a total ban on all vehicles in the Bylaw Area, and the fifth version of the Technical Report. The draft bylaw was notified for public consultation, using the special consultative procedure provided for in s 83 of the Local Government Act 2002.
[17] The Council decided to appoint a panel of three commissioners to hear submissions on the draft bylaw and make recommendations to the Council (the Hearing Panel or Panel). In August 2021, the Council offered both Rangitāne and Ngāti Kuri the opportunity to nominate a representative to the Hearing Panel, on the condition that they would not be able to make a submission to the Hearing Panel on the draft bylaw. Ngāti Kuri nominated a representative, but Rangitāne did not, as they wished to make a submission.
[18] Rangitāne made written and oral submissions to the Hearing Panel in 2021 and 2022. These submissions raised procedural concerns about inadequate engagement with Rangitāne and a lack of understanding of Rangitāne’s customary interests in the Bylaw Area and substantive concerns that the draft bylaw would prevent them from accessing areas of customary and cultural importance. Rangitāne proposed that the
6 As required by s 155 of the Local Government Act 2002.
bylaw be varied to include an exemption for tangata whenua exercising customary rights.
[19] Ngāi Tahu wrote to the Council in October 2021, explaining their views that the Council had appropriately approached the status of Ngāi Tahu and Ngāti Kuri in relation to the proposed Bylaw Area, expressing support for the Council’s consultation with Ngāti Kuri.
[20] Throughout the consultation process, there were disputes about which iwi held mana whenua in the Bylaw Area. The Hearing Panel issued minutes stating that it was not required to and would not make any determinations on mana whenua or mana moana during the consultation process or in the recommendations they provided to the Council.
[21] On 18 July 2022, the Hearing Panel provided a report to the Council, proposing a variation of the draft bylaw allowing certain vehicles to access an area then defined as the ‘Yellow Zone’. The Hearing Panel recorded that it did not consider the Technical Report binding on it. It did not propose any amendment creating an exemption allowing tangata whenua to exercise customary rights, preferring the view that the insertion of the Yellow Zone was sufficient. The report was presented at a Council meeting on 11 August 2022, during which the Council resolved to accept the as- notified bylaw with this recommended amendment, subject to further engagement with tangata whenua, including Rangitāne.
[22] On 24 February 2023, the Council publicly notified a Council meeting on 2 March 2023 at which a decision would be made in relation to the Bylaw. The Bylaw, including the Yellow Zone recommendation, was approved by a resolution of the Council on 2 March 2023. It came into force on 1 July 2023.
The Bylaw
[23] The Bylaw was made under s 22AB(1)(d), (f) and (g) of the Land Transport Act 1998, with the Council exercising its power to make bylaws as a road controlling authority. The operative part of the Bylaw is contained in cl 6. Clause 6 provides for an area in which use of motor vehicles is not allowed at any time (the “Red Zone”).
Clause 6 also provides for an area in which use of motor vehicles is not allowed other than all-terrain vehicles (ATV) and utility terrain vehicles (UTV) (being low tyre pressure vehicles) at a maximum speed of 30 kilometres per hour during daylight hours at or below the mean high-water mark (the ‘Yellow Zone’). Finally, cl 6 provides for an area in which use of motor vehicles is allowed (the ‘Green Zone’).
[24] The Red Zone is in two specified areas, the first being between the Awatere River Mouth in the west and the end of Marfells Beach in the east, and the second being between the eastern side of Cape Campbell in the west, and the Waima (Ure) River Mouth in the east. The Yellow Zone is the area between the two areas that form the Red Zone. The Green Zone is the area from the Waima (Ure) Mouth to the south along the coast to the Marlborough District Boundary.
[25] A map depicting these areas subject to the Bylaw is attached to this judgment as appendix 1.
[26] There are exceptions to cl 6 of the Bylaw, as set out in cls 7 and 9. The exceptions include vehicle use in areas where it is otherwise prohibited for boat launching and retrieval at specified locations, authorised agencies carrying out their lawful functions or activities and for specified businesses.
[27] The Bylaw also confirms that, for the avoidance of doubt, nothing in the Bylaw affects access other than by motor vehicle.7 Walking, cycling, horse riding, and access by vehicles that are not motor vehicles as defined in the Land Transport Act continue to be unrestricted. Access to the East Coast for commercial fishing to the extent that that right to access was permitted before the commencement of the Bylaw is also exempt.
[28] The Bylaw does not contain an exemption for tangata whenua exercising customary rights.
7 East Coast Beach Vehicle Bylaw 2023, cl 9.
The Bylaw’s effect on Rangitāne
[29] Rangitāne has the status of mana whenua in the Bylaw Area, as acknowledged by the Council in these proceedings. The evidence given by members of Rangitāne confirms that the Bylaw Area contains sites of significance such as pā sites, kāinga, cultivations, urupā, tauranga waka, and mahinga kai. Rangitāne has long exercised customary rights within the Red Zone area, particularly exercising customary fishing practices, maintaining archaeological sites of significance and visiting sites where kaumatua are able to transmit intergenerational knowledge to younger generations.
[30] It is common ground between the parties that the Bylaw Area is within the area in which Rangitāne has customary interests.8 It is also common ground that this proceeding is not intended to litigate any dispute as to the relative strengths of the interests of different iwi in the Bylaw Area.9
[31] Rangitāne say that they will not be able to access significant sites or exercise their customary rights within the Red Zone if they are unable to use vehicles there, and that the Yellow Zone (in which vehicles may be used) has no relationship to the areas in respect of which they require access. Rangitāne points to my interim judgment, where they say I accepted that the Bylaw detrimentally affected Rangitāne’s ability to use the beach to undertake customary activities.10 In the interim judgment, I concluded that the Bylaw would, for some persons, effectively deprive them of access to the full extent of the Red Zone.11 The context for this was addressing whether Rangitāne had a position to preserve for the purpose of considering the availability of interim relief. I later concluded that the significance of the interests involved were sufficient to satisfy that threshold.12
[32] Further evidence provided by Rangitāne for the substantive hearing reiterates that Rangitāne have had vehicular access to the Bylaw Area over a long period, including before the 2016 earthquake. The evidence also states that the physical health
8 This is acknowledged by the Crown in its Deed of Settlement with Rangitāne dated 4 December 2010.
9 Interim Decision, above n 1, at [105].
10 At [84].
11 At [89].
12 At [91].
of some members of Rangitāne, especially kaumātua, means their access to the Bylaw Area will be restricted, and that the exercise of some customary fishing rights will not be achievable without vehicle access. Rangitāne says that access by horse or bicycle, although preserved by the Bylaw, is unrealistic, and even access by boat is unlikely. No detailed evidence has been given of the precise impact of the Bylaw on Rangitāne nor have they addressed the extent to which they are still able to exercise their customary rights and responsibilities.
Overview of the parties’ positions
Rangitāne
[33] Overall, Rangitāne say their rights and interests in the Bylaw Area were not properly understood or considered by the Council in its decision to adopt the Bylaw. Rangitāne say that the Council is a delegate of the Crown in exercising its legislative functions under s 22AB of the Land Transport Act and the Local Government Act and thereby the Council is not permitted to exercise its powers in a manner which adversely affects the ability of Rangitāne to exercise their customary rights, including customary fishing rights established under statute, as such rights are guaranteed by art 2 of the Treaty of Waitangi. Rangitāne also says the Council did not follow the provisions governing council decision-making in the Local Government Act.
[34] Rangitāne also say the decision was procedurally unjustified because the Council adopted a “partnership” with Ngāti Kuri at an early stage of the decision- making process in relation to the proposed bylaw, to the exclusion of Rangitāne. Rangitāne says this led to the Council making material errors of fact during the process about the nature and extent of the rights and interests of Rangitāne in the Bylaw Area, including in the Technical Report. Rangitāne further submit that the Council breached the legitimate expectations that they would be properly consulted and that the customary associations of Rangitāne with the Bylaw Area would be taken into account. Finally, Rangitāne says the presence of a Ngāti Kuri representative on the Hearing Panel gave the appearance of bias.
[35] Rangitāne seek in their statement of claim to have the Bylaw set aside under s 16 of the Judicial Review Procedure Act 2016 and quashed under s 12 of the Bylaw
Act 1910. However, in their subsequent written submissions, Rangitāne proposed instead that the Court grant relief by amending the Bylaw through inserting a new cl 7.1(c) into the Bylaw as an additional exemption in the following terms:
If such person is a member of Rangitāne o Wairau and accessing the area where motor vehicle access is otherwise prohibited for purposes of exercising customary rights, statutory fishing rights, exercising rights to access such persons’ lands [ ] and fisheries guaranteed under Article 2 of the Treaty of Waitangi.
The Council
[36] The Council says that it has Treaty of Waitangi obligations only to the extent explicitly provided for in the Local Government Act, and that bylaws, including the Bylaw, can lawfully restrict the ability of iwi to exercise customary rights. The Council says it acted in accordance with its obligations under the Local Government Act, adequately consulted Rangitāne and undertook a thorough consultative process that does not give rise to questions of bias or breach of legitimate expectations. The Council also says that it was not mistaken as to the customary rights and interests of Rangitāne in the Bylaw Area, and that even if it was mistaken, this mistake was not material to the decision to adopt the Bylaw.
Evidence
[37] Both Rangitāne and the Council filed affidavits in support of their respective positions, the contents of which are relied on as necessary in this judgment. The Council gave notice of its objection to some of the evidence filed by Rangitāne and the parties sought to have the objections determined at the commencement of the hearing. The Council refined its objections on the basis that much of the contested evidence was not referred to or relied on by counsel for Rangitāne, Ms Radich, in written submissions or at the hearing. My decisions in relation to the objections to evidence are recorded in a Minute dated 29 May 2024 and are applied as necessary in this judgment.
The issues
[38] Rangitāne challenge the decision to adopt the Bylaw on the following seven grounds pleaded in their statement of claim:
(a)The decision is ultra vires to the extent that the Council has no statutory power, through the bylaw process under the relevant legislation, to prevent Rangitāne from accessing their sites of significance and from exercising their customary rights in the Bylaw Area.
(b)The decision is procedurally unjustified because of the differential basis upon which the Council engaged with Ngāi Tahu relative to Rangitāne.
(c)The decision breached the legitimate expectations of Rangitāne that they would be properly consulted in relation to the Bylaw and that all relevant information would be taken into account, including the nature and extent of the customary interests of Rangitāne in the Bylaw Area.
(d)The decision breached the Council’s obligations under the Local Government Act particularly the obligations in ss 76, 77(1)(c), 78(1), 79(1)(b), 80, 81, 82, 83, 83AA and 86.
(e)The decision was based on incorrect information in the Technical Report, being the cultural narrative which was provided by Ngāi Tahu, and which incorrectly identified the nature and extent of the interests of Rangitāne in the Bylaw Area.
(f)The decision breaches the Council’s obligations under the Treaty of Waitangi, as a delegate of the Crown.
(g)The decision is flawed because a representative of Ngāi Tahu was on the Hearing Panel and this created at least the appearance of bias against Rangitāne on account of the position of Ngāi Tahu, which was accepted by the Council, that Ngāi Tahu had superior rights and interests in the Bylaw Area.
[39] In her submissions, Ms Radich described the allegations as falling into two categories. The first category13 includes an allegation by Rangitāne that in adopting the Bylaw, the Council was a delegate of the Crown in the exercise of legislative functions under s 22AB of the Land Transport Act and under the Local Government Act. Rangitāne says that as a delegate of the Crown in this context, the Council assumes the Crown’s obligations, including under the Treaty of Waitangi. Rangitāne says the Bylaw is in breach of art 2 of the Treaty of Waitangi because it adversely affects the ability of Rangitāne to access their sites of significance and exercise their customary rights, and therefore the Bylaw is ultra vires the empowering legislation (being the Land Transport Act and the Local Government Act). Ms Radich also includes in this category the allegation by Rangitāne that the Council is in breach of its Treaty of Waitangi obligations as set out in s 4 and pt 6 of the Local Government Act.
[40] The second category identified by Ms Radich contains conventional judicial review grounds involving allegations of apparent bias, breach of legitimate expectations and material error.14
[41] For reasons that will become apparent in the discussion below, I address the issues as follows. I first address the nature of the Council’s obligations under the Treaty of Waitangi, to deal with the questions raised about delegation, ultra vires and the breach of art 2 of the Treaty. Then, I consider the Council’s obligations under pt 6 of the Local Government Act and whether the Council has complied with them in the present case. Lastly, I address the remaining grounds of review and whether they have been established. As will become apparent, this third group of issues includes additional grounds of review asserted in the submissions for Rangitāne but not expressly pleaded in the statement of claim.
13 Rangitāne say that the grounds set out at [38(a), (d) and (f)] belong in this category. The breadth of the ground recorded at [38(f)] initially caused some confusion as to the argument being advanced by Rangitāne but Ms Radich clarified that Rangitāne do not contend as a general proposition that a local authority is a delegate of the Crown under the Treaty of Waitangi, rather she advances the more limited point as described here, relating to its bylaw-making power as a road controlling authority.
14 Rangitāne say that the grounds set out at [38(b), (c), (e) and (g)] belong in this category.
What is the nature of the Council’s obligations under the Treaty of Waitangi?
[42] As already mentioned, Rangitāne say firstly that that the Council is not permitted to exercise its powers under the Land Transport Act and the Local Government Act in a manner that adversely affects the ability of Rangitāne to exercise their customary rights, as such rights are guaranteed by art 2 of the Treaty of Waitangi.15 Rangitāne says that in adopting the Bylaw, the Council is a delegate of the Crown, and so assumes the Crown’s obligations under the Treaty of Waitangi.16
[43] Rangitāne say that therefore the Bylaw is ultra vires (outside the scope of) the empowering legislation. Rangitāne suggest these propositions are uncontroversial, and any remaining doubt is removed by s 4 of the Local Government Act, which states:17
4 Treaty of Waitangi
In order to recognise and respect the Crown’s responsibility to take appropriate account of the principles of the Treaty of Waitangi and to maintain and improve opportunities for Māori to contribute to local government decision-making processes, Parts 2 and 6 provide principles and requirements for local authorities that are intended to facilitate participation by Māori in local authority decision-making processes.
[44]This argument encompasses the grounds of review set out at [38(a) and (f)].
[45] Rangitāne additionally submit that the Council has not complied with its express statutory obligations set out in pt 6. This is the ground of review set out at [38(d)] and is addressed in full under the next heading.
[46] As I understand the argument, the Rangitāne position involves four propositions:
(a)The first is that the Council is subject to Treaty obligations, effectively at common law, as it was a delegate of the Crown in its exercise of legislative functions under the Land Transport Act and Local Government Act.
15 For the text of article 2 see the versions of the Treaty of Waitangi in te reo Māori and in English see Waitangi Tribunal “Māori and English texts” < was also the view taken by the Hearing Panel in their report.
17 There is no Treaty clause in the Land Transport Act 1998.
(b)The second is that the Council is subject to Treaty obligations under s 4 of the Local Government Act, and that this reinforces the first proposition.
(c)The third is that the Bylaw is unlawful because it restricts access by Rangitāne to their customary sites and therefore breaches the Council’s common law Treaty obligations.
(d)The fourth is that the Bylaw and its adoption also breaches the express obligations set out in pt 6 of the Local Government Act.
[47] The Council says that it is not a delegate of the Crown in making a bylaw under the Land Transport Act or the Local Government Act. Counsel for the Council, Ms McKechnie, submits that local authorities are separate corporate bodies from the Crown, created by Parliament and vested with particular powers under legislation.18 She says that s 4 and pt 6 of the Local Government Act impart the extent of its Treaty obligations in this context, with no further obligations arising from the Crown, directly or through delegation.
[48] The Council further submits that even if it did have obligations under the principles of the Treaty of Waitangi, it is not at all clear that there is any breach. The Council accepts that the Bylaw does have an impact on Rangitāne because modes of access to the Bylaw Area are restricted but says that rights under art 2 of the Treaty are not absolute. Ms McKechnie says that the absence of a breach is supported by the difference in views between Rangitāne and Ngāti Kuri on the Bylaw and what art 2 of the Treaty obliges.
[49] In my judgment declining to issue interim relief to Rangitāne, I recorded that the allegations made by Rangitāne as to the extent of the Council’s obligations under the Treaty appeared to raise a novel question of law.19 For the purpose of assessing the strength of the claim by Rangitāne (in the context of the test for making an interim
18 Local Government Act, s 12.
19 Interim Decision, above n 1, at [96]–[102].
order under s 15 of the Judicial Review Procedure Act), I concluded that these allegations were reasonably arguable.
[50] Despite the novelty of this question of law, at the hearing of the substantive application, Rangitāne did not elaborate on the legal support for their position. Their submission remained, at essence, that as a matter of logic or common sense, the Council as a delegate must observe the Crown’s obligations under the Treaty of Waitangi when making a bylaw under the relevant legislation. There were no references to authorities or commentary in support of this position beyond the well- established proposition that subordinate legislation (such as the Bylaw) must fall within the scope of the empowering legislation.20
[51] For Rangitāne to establish that the Council as a delegate of the Crown is subject to Treaty obligations beyond those explicitly included in the Local Government Act, they must prove two matters. First, that local authorities are subject to Treaty obligations at common law where they are delegates of the Crown for the purpose of promulgating secondary legislation, despite being discrete entities from the Crown. Second, that Parliament intended local authorities to be subject to those common law Treaty obligations under the relevant legislation, or in other words, the legislation has not restricted the extent of the local authority’s Treaty obligations to those that are explicitly included in statute.
[52]I consider each issue in turn.
The delegation argument
[53] Ms McKechnie emphasises that Rangitāne have provided no authority for the proposition that the Council acts as a delegate of the Crown in this context and therefore assumes the Crown’s Treaty obligations. She submits that if the proposition was correct, every person (not the Crown) exercising a function under secondary legislation (or any legislation) would have to assume the Crown’s Treaty obligations, which is not the case. Ms McKechnie also points to the approach expressed in
20 Harness Racing New Zealand v Kotzikas [2005] NZAR 268 (CA) at [57]; and Van Gorkom v Attorney-General [1978] 2 NZLR 387 (CA) at 391.
Hoani Te Heuheu Tukino v Aotea District Māori Land Board that there must be legislative incorporation of the Treaty to establish an actionable right.21
[54] The responsibilities local authorities should have under the Treaty has been the subject of extensive debate over many years.22 It has been generally accepted that local authorities are not directly subject to the Treaty of Waitangi and its principles as they are not part of the Crown and thus not party to the Treaty.23 In its report to Parliament on the Local Government Act, the Local Government and Environment Select Committee commented on the clause that became s 4, saying:24
The […] clause makes clear that Treaty responsibilities lie with the Crown, which is the Treaty partner. When powers are delegated to local authorities, requirements need to be put in place to ensure that the Treaty is observed. The clause 12 principles and a set of mechanisms in Part 2 and Part 5 have been included in the bill in order to give effect to the Crown’s obligations.
[55] It has also been observed, however, that in practice some functions of governance or kāwanatanga have been delegated by the Crown to local authorities, including a number that particularly implicate the Treaty relationship.25 One commentator has conceptualised this as local government being an agent of the Crown.26 Thus it has been suggested “the Crown’s fulfilment of its obligations to iwi and hapū under the Treaty of Waitangi depends, in part, on the actions of local government as its agent”.27
[56] This issue has been litigated in the courts in the context of legislation similar to the Local Government Act. The Resource Management Act 1991 (RMA) contains a Treaty provision that applies to local authorities exercising powers under the Act. It provides:
21 Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 (PC).
22 Grant Hewison and others Local Government Law in New Zealand at [LGpt1.033(1)].
23 C Mitchel and D Knight Local Government (online looseleaf ed, LexisNexis) at [LGA4.4]; C Mitchel, D R Knight Laws of New Zealand Local Government at [7-35]; Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2022] NZHC 1846 at [77(d)]; Hanton v Auckland City Council [1994] NZRMA 289 (PT) at 20; and New Zealand Independent Community Pharmacy Group v Te Whatu Ora – Health New Zealand [2023] NZHC 1486 at [236].
24 Local Government Bill (191-2) (select committee report) at 18; cited in Hewison and others, above n 22, at [LG4.04].
25 Mitchel and Knight Local Government, above n 23, at [LGA4.4].
26 T Potaka “A Treaty Agendum for Local Government” (1999) 29 VUWLR 111 at 124.
27 Mitchel and Knight Local Government, above n 23, at [LGA4.4].
8 Treaty of Waitangi
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).
[57] The orthodox view taken by the courts is that the obligation to take Treaty principles into account under the RMA does not impose on local authorities the same duties that the Crown has under the Treaty or its principles.28 This is because the Crown, rather than local authorities, is the Treaty partner. As this Court summarised in Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council:29
The Crown rather than local authorities is the Treaty partner. Although s 8 requires local authorities to take into account the principles of the Treaty, it does not impose on them the obligations of the Crown under the Treaty.
[58] However, this Court has also held, in the context of the RMA, that the broader obligations of the Crown under the Treaty and its principles may apply to the policy and actions of local authorities in exercising powers conferred by Parliament.30 In Ngati Maru Ki Hauraki Inc v Kruithof, Baragwanath J held:31
[57] It is the responsibility of successors to the Crown, which in the context of local government includes the Council, to accept responsibility for delivering on the art. 2 promise. Nowadays the Crown is a metaphor for the Government of New Zealand, here delegated by Parliament to the Council, which is answerable to the whole community for giving effect to the Treaty vision in the manner expressed in the Resource Management Act.
[59] Section 4 of the Local Government Act was modelled on s 4 of the New Zealand Public Health and Disability Act 2000 (NZPHDA),32 which provides:
28 Hanton v Auckland City Council, above n 23, at 20; Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council, above n 23, at [77(d)]; and Tom Bennion and Geoffrey Melvin Laws of New Zealand Resource Management at [12-142].
29 At [77(d)]; see also Hanton v Auckland City Council, above n 23, at 20; and Bennion and Melvin, above n 28, at [12-142].
30 Kenneth Palmer Local Government Law in Aotearoa New Zealand (2nd ed, Thomson Reuters, Wellington, 2022) at 38.
31 Ngati Maru Ki Hauraki Inc v Kruithof HC Hamilton CIV-2004-485-330, 11 June 2004.
32 Cabinet Policy Committee Minute “Review of Local Government Act: Paper 7: Treaty of Waitangi and Local Government” (3 October 2001) POL Min (01) 26/17 at [17.3]; Matthew SR Palmer The Treaty of Waitangi in New Zealand’s Law and Constitution (Victoria University Press, Wellington, 2008) at 100 and fn 44; and Hewison and others, above n 22, at [LG4.01].
4 Treaty of Waitangi
In order to recognise and respect the principles of the Treaty of Waitangi, and with a view to improving health outcomes for Maori, Part 3 provides for mechanisms to enable Maori to contribute to decision-making on, and to participate in the delivery of, health and disability services.
[60] This provision was the subject of recent analysis by this Court in New Zealand Independent Community Pharmacy Group v Te Whatu Ora – Health New Zealand.33 There, a group of community pharmacists challenged decisions by two District Health Boards (DHBs) to grant Integrated Community Pharmacy Services Agreements to a company associated with the Countdown Group that wished to operate new pharmacies in Countdown stores. One ground of challenge was that the DHBs each acted unlawfully by failing to enable Māori to contribute to decision-making in the appropriate way, thereby acting inconsistently with the Treaty.34 The applicant argued that s 4 of the NZPHDA, the DHBs’ empowering statute, did not limit Parliament’s intention in respect of the DHBs or limit decision-makers’ duties to those found in pt 3.35
[61] Justice Gwyn upheld the respondents’ submission that DHBs were not the Crown and therefore not a Treaty partner.36 Her Honour concluded that the DHB’s Treaty obligations did not go beyond those set out in statute, specifically s 4 and pt 3 of the NZPHDA.37 Her Honour also referenced the express wording of s 4 of the NZPHDA as demonstrating that Treaty obligations would be discharged primarily through s 4 and pt 3.38 Justice Gwyn concluded that the DHBs discharged their Treaty obligations under the NZPHDA and that the ground was therefore not made out.39
[62] From these decisions, it can be observed that the courts have generally been reluctant to impose Treaty obligations on local authorities at common law. However, this question of law is not settled. I note that the orthodox approach does not appear to have come before the appellate courts. This Court’s decision in New Zealand
33 New Zealand Independent Community Pharmacy Group v Te Whatu Ora – Health New Zealand, above n 23.
34 At [221]–[225].
35 At [240].
36 At [236].
37 At [237]
38 At [240]. I discuss this reasoning further at [76].
39 At [244]–[245].
Independent Community Pharmacy Group v Te Whatu Ora – Health New Zealand has been appealed to the Court of Appeal, and a decision has not yet been issued.
[63] I am not required to resolve this question of law, because even if local authorities owe Treaty obligations at common law, I consider that Parliament intended to restrict the Treaty obligations of local authorities making decisions under the Local Government Act to those explicitly included in that Act, as evidenced by the text of s 4.
The statutory context
[64]To repeat, s 4 of the Local Government Act provides:
4 Treaty of Waitangi
In order to recognise and respect the Crown’s responsibility to take appropriate account of the principles of the Treaty of Waitangi and to maintain and improve opportunities for Māori to contribute to local government decision-making processes, Parts 2 and 6 provide principles and requirements for local authorities that are intended to facilitate participation by Māori in local authority decision-making processes.
[65] The provision expressly refers to pts 2 and 6 of the Act. Part 2 provides the purpose, role and powers of local authorities, including the principle that local authorities “should provide opportunities for Māori to contribute to its decision- making processes”.40 Part 6 contains provisions that impose specific obligations on local authorities in relation to the involvement of Māori in decision-making processes.41
[66] In the Supreme Court decision of Trans-Tasman Resources Ltd v Taranaki- Whanganui Conservation Board, the Court held that an intention to constrain the ability of statutory decision-makers to respect Treaty principles should not be ascribed to Parliament unless that intention is made explicit.42
40 Local Government Act, s 14(1)(d).
41 Section 75(b).
42 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [149]–[150] per William Young and Ellen France JJ; [237] per Glazebrook J; [296] per Williams J; and [332] per Winkelmann CJ.
[67] Justice Ellen France, writing for the majority of the Court, observed “the trend in more recent statutes to give a greater degree of definition as to the way in which the Treaty principles are to be given effect and a departure from the more general, free standing Treaty clauses”.43 But she refuted that this necessarily limited Treaty obligations:44
[151] But the move to more finely tuned subtle wording does not axiomatically give support to a narrow approach to the meaning of such clauses. Indeed, the contrary must be true given the constitutional significance of the Treaty to the modern New Zealand state. The courts will not easily read statutory language as excluding consideration of Treaty principles if a statute is silent on the question. It ought to follow therefore that Treaty clauses should not be narrowly construed. Rather, they must be given a broad and generous construction. An intention to constrain the ability of statutory decision-makers to respect Treaty principles should not be ascribed to Parliament unless that intention is made quite clear.
[68]Justice Williams voiced a similar view:45
[…] the constitutional significance of the Treaty means that Treaty clauses will be generously construed. If Parliament intends to limit or remove the Treaty’s effect in or on an Act, this will need to be made quite clear.
[69] Thus, the present question would be whether Parliament, through its construction of s 4, has made it “quite clear” that it intends to restrict the Treaty obligations of local authorities to what is explicitly mentioned in the provision, being the principles and requirements set out in pts 2 and 6. The Council argues that the terms of the Land Transport Act and the Local Government Act make Parliament’s intentions clear that the Council’s only Treaty obligations are those in s 4 of the Local Government Act. The position of Rangitāne would be that Parliament has not clearly restricted the Council’s Treaty obligations in the way the Council describes.
[70] I consider the Council’s position to be correct. The position has been recently reinforced by the Court of Appeal’s decision in Smith v Attorney-General, which addresses this question in the context of the Climate Change Response Act 2002 (CCRA).46
43 At [150].
44 Footnotes omitted.
45 At [296].
46 Smith v Attorney-General [2024] NZCA 692.
[71] Mr Smith had appealed against the High Court decision to strike out his claims against the Crown for its alleged inadequate action in relation to climate change. The Court of Appeal dismissed the appeal. One of Mr Smith’s claims asserted that through its acts and omissions, the Crown had breached art 2 of the Treaty by “impeding, and not actively facilitating, the ability of Mr Smith, his whānau, Ngāpuhi and Ngāti Kahu to exercise tino rangatiratanga in respect of their taonga (their customary sites and resources)”.47
[72] The Court traversed the evolving legal understanding of the Treaty in New Zealand, beginning with a discussion of the Privy Council’s decision in Te Heuheu Tukino v Aotea District Maori Land Board.48 It is helpful to produce this analysis in full:
[144] The conclusion in Te Heuheu that the Treaty was not enforceable unless incorporated into domestic law was based on the then prevailing view that the Treaty was one of cession.49 Some 46 or so years later, in the Lands case Cooke P said that there were some “big questions” about the Treaty, for example, as to its status at international law and the principles for interpreting international treaties, but these were not issues the Court was called upon to decide.50 Nor was it contended in the Lands case that the Treaty was a fundamental or supreme constitutional document in the sense that it could override Acts of our legislature.51 As Cooke P noted, nor could it have been in the face of the Privy Council’s reasons in Te Heuheu that the rights of the Treaty cannot be enforced in the courts except in so far as a statutory recognition of the rights could be found.52
[145] Cooke P described Te Heuheu as “represent[ing] wholly orthodox legal thinking, at any rate from a 1941 standpoint”.53 But by the time of the Lands case, the Treaty of Waitangi Act 1975 and the State Owned Enterprises Act 1986 had been enacted, the former establishing the Waitangi Tribunal and the latter including a Treaty clause. As to how a Treaty clause in domestic legislation was to be interpreted, Cooke P said:54
47 At [133(h)].
48 Te Heuheu Tukino v Aotea District Maori Land Board, above n 21.
49 Much has been written about this. See for example: Philip Joseph Joseph on Constitutional and Administrative Law (online ed, Thomson Reuters) at [4.6]–[4.9]; and Waitangi Tribunal He Whakaputanga me te Tiriti/The Declaration and the Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) in which the Waitangi Tribunal found there was no cession of sovereignty in Te Raki from the signing of the Treaty by rangatira and the Crown in February 1840 at 529.
50 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 655 per Cooke P.
51 At 665 per Cooke P.
52 At 665 per Cooke P.
53 At 667 per Cooke P. Cooke P also said at 667 that “[b]y past standards [Te Heuheu Tukino v Aotea District Maori Land Board, above n 21] could have been called the leading case on the Treaty”.
54 At 655–656 per Cooke P.
… A broad, unquibbling and practical interpretation is demanded. It is hard to imagine any Court or responsible lawyer in New Zealand at the present day suggesting otherwise. …
… The submissions [before the Court] were … that the Treaty is a document relating to fundamental rights; that it should be interpreted widely and effectively and as a living instrument taking account of the subsequent developments of international human rights norms; and that the Court will not ascribe to Parliament an intention to permit conduct inconsistent with the principles of the Treaty. I accept that this is the correct approach when interpreting ambiguous legislation or working out the import of an express reference to the principles of the Treaty. …
[146] The Treaty had also been recognised in other legislation by this time as well. That same year Chilwell J in Huakina Development Trust v Waikato Valley Authority said that the Treaty “was essential to the foundation of New Zealand” and that since it was signed “there has been considerable direct and indirect recognition by statute” of the Crown’s Treaty obligations.55 In 2021, in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, Ellen France J observed that the “courts will not easily read statutory language as excluding consideration of Treaty principles if a statute is silent on the question” and Treaty clauses in statutes should be given a “broad and generous construction” given “the constitutional significance of the Treaty to the modern New Zealand state”.56
[147] In short, in the over 80 years since Te Heuheu, as the Crown put it in its oral submissions, the Treaty has come to occupy a powerful position in our constitution and legal system. It has not been necessary to decide whether the Treaty was directly enforceable absent statutory recognition because relevant legislation generally explicitly requires its proper consideration. And, when not explicitly required under the legislation, its powerful position in our constitution has generally meant that Treaty considerations are not excluded when the context of the legislation or decisions made under it makes them relevant.
[73] The Court of Appeal discussed the Treaty clause of the CCRA, s 3A, describing it as follows:
[149] The CCRA contains a Treaty clause setting out how the Act is intended “to recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty”.57 This encompasses requirements that:
(a)the Minister have regard to the need for members to have skills, experience and expertise, and innovative approaches, relevant to the Treaty before recommending an appointment
55 Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) at 210, as cited in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, above n 42, at [150] per William Young and Ellen France JJ. See also at [237] per Glazebrook J, [296] per Williams J and [332] per Winkelmann CJ.
56 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, above n 42, at [151] per William Young and Ellen France JJ.
57 Climate Change Response Act, s 3A.
to the Commission (and particular attention must be given to seeking nominations from iwi and Māori representative organisation for such appointments);58
(b)emissions reduction plans include “a strategy to recognise and mitigate impacts on iwi and Māori of reducing emissions and
… ensure Māori are adequately consulted on the plan”;59
(c)national adaptation plans “take into account the economic, social, health, environmental, ecological, and cultural effects of climate change on iwi and Māori”;60
(d)where the Minister recommends secondary legislation under the CCRA in relation to various sections (relating to for example dealings and price controls for “units”, the carbon price, and activities excluded or exempted from the ETS), the Minister must consult (or be satisfied that the Chief Executive has consulted) representatives of iwi and Māori that appear to have an interest in the secondary legislation;61 and
(e)where the Minister recommends a review of the operation of the ETS, and does so by appointing a review panel:62
(i)the Minister must ensure that the review panel has at least one member with appropriate knowledge, skill and experience relating to the principles of the Treaty and tikanga Māori to conduct the review;
(ii)the review panel must consult with the representatives of iwi and Māori that appear to the panel likely to have an interest in the review; and
(iii)the terms of reference for the review must incorporate reference to the principles of the Treaty.
[150] In other words, in all aspects of the CCRA framework, the Crown’s obligations under the Treaty are given effect through representation of persons with relevant expertise on the Commission and any review panel, requiring that emissions reduction and national adaptation plans take into account impacts on iwi and Māori and through consultation requirements on all key aspects of the framework.
[74]The Court then concluded that:63
In these circumstances, where Parliament has decided to give effect to the Crown’s obligations under the Treaty in this way, there is no room for a claim to operate that seeks to directly enforce the Treaty through an independent duty.
58 Section 3A(ab) and (ac).
59 Section 3A(ad).
60 Section 3A(ac).
61 Section 3A(b).
62 Section 3A(d).
63 At [150].
[75] The Court considered that to the extent Mr Smith’s claim concerns alleged inadequate steps taken under the CCRA, the relevant question was whether decisions relating to those steps were made lawfully, which would be appropriately tested through an application for judicial review. The Court concluded:64
If the decisions have been made lawfully under legislation that gives effect to the Crown’s Treaty obligations, there is again no room for a claim to operate that the Treaty has been breached.
[76] I note that this approach aligns with Gwyn J’s decision in New Zealand Independent Community Pharmacy Group v Te Whatu Ora – Health New Zealand, discussed above.65 Her Honour found there:
[240] The applicant says that s 4 of the NZPHDA did not limit Parliament’s intention in respect of the DHBs or limit decision-makers’ duties to those found in pt 3. However, I accept the first and second respondents' submission that the express wording of s 4 demonstrates that the Crown intended ‘to recognise and respect the principles of the Treaty’ through the mechanisms provided in pt 3 of the Act. I accept the intention at the time the legislation was passed was that the Crown's Treaty's obligations would be discharged primarily through the mechanisms in pt 3.
[77] Bearing in mind the approach of the Court of Appeal in Smith, I consider that s 4 of the Local Government Act presents a legitimate approach by Parliament to giving effect to the principles of the Treaty of Waitangi.66 How statutory decision- makers are to respect Treaty principles has been made quite clear by Parliament, as the Council submits. I accept that Rangitāne is not advancing a claim that seeks to directly enforce the Treaty through an independent duty. This is an application for judicial review—Rangitāne is bringing a claim to test decisions made under the Local Government Act—as (by analogy) the Court of Appeal suggested is appropriate.67 Crucially, as the Court of Appeal says, there cannot be a breach of the Treaty where a decision has been made lawfully under legislation that gives effect to Treaty principles.68
64 At [151].
65 New Zealand Independent Community Pharmacy Group v Te Whatu Ora – Health New Zealand, above n 23.
66 Compare Interim Decision, above n 1, at [101].
67 Smith v Attorney-General, above n 46, at [151].
68 At [151].
[78] Accordingly, I conclude the Council does not owe Rangitāne Treaty obligations beyond those explicitly included in the Local Government Act, and the proper focus of the claim by Rangitāne as to compliance with the Treaty is whether the Council has breached its obligations under pt 6 of that Act. Although the Land Transport Act does not include a Treaty clause, I do not consider that this alters my analysis. The Council must make a bylaw in accordance with the provisions of the Local Government Act and its Treaty obligations are articulated there. I do not need to consider whether a different analysis would be required if only the Land Transport Act was at issue, as that is not the case here.
[79] Therefore, I am not satisfied the Council’s decision to adopt the Bylaw is ultra vires the Local Government Act and Land Transport Act because the Council is subject to a common law obligation under art 2 of the Treaty as a delegate of the Crown.
[80] I conclude that the grounds for review set out in [38(a) and (f)] are not made out.
[81] My conclusions in relation to this issue explain why I frame the Council’s compliance with pt 6 of the Local Government Act as a separate issue, to which I now turn.
Did the Council breach its obligations under pt 6 of the Local Government Act?
[82] The second issue is whether the Council breached its obligations under pt 6 of the Local Government Act. This is the ground of review set out at [38(d)].
[83] Before turning to the detailed grounds raised by Rangitāne, I note that two additional criticisms are raised by Rangitāne in this context. The first is that there is no evidence from any member of Council that pt 6 matters were considered, other than the documentary record, which in this case, is the Council’s decision to adopt the Bylaw. Rangitāne contend that this lack of evidence is proof that the Council did not consider pt 6 matters (other than acknowledging that the special consultative procedure was appropriately used).
[84] The second related criticism is that there is no evidence of the Hearing Panel considering the pt 6 requirements (again, other than meeting the requirements of the special consultative procedure) and this also means the Council failed to consider the pt 6 requirements.
[85] The absence of evidence from individual Council members and Commissioners on the Hearing Panel is not fatal in the circumstances. Nor is it the case that the Hearing Panel was to make any decision in relation to the Bylaw—its role was merely recommendatory. Rather, I consider it is necessary for me to review the specific concerns raised by Rangitāne as to whether the requirements under pt 6 of the Local Government Act are satisfied against the evidence available to the Court. As the Council submits, the process followed by the Council and the reasons for its decision to adopt the Bylaw are apparent on the face of the decision-making documents, which are before the Court. This not only includes the material provided to the Council for the 2 March 2023 meeting at which the decision to adopt the Bylaw was made but also the evidence of the work undertaken over the several years before, including that undertaken by the Hearing Panel.
[86] Rangitāne submit that the Council has not discharged its obligations under ss 76, 77(1)(c), 78(1), 79(1)(b), 80, 81, 82, 83, 83AA and 86.69 Accordingly, I address each provision in turn.70
Section 76
[87] Section 76(1) provides that every decision made by a local authority must be made in accordance with such of the provisions of ss 77, 78, 80, 81 and 82 as are applicable. No reviewable errors are asserted by Rangitāne in respect of s 76 alone. Rather I understand their position is that this provision was breached because the decision was not made in accordance with aspects of ss 77 to 82.
69 Part 6 of the Local Government Act provides a decision-making framework for local authorities. It does not generally prescribe or limit substantive powers, rather it sets out procedural requirements that apply in the exercise of those powers: Royal Forest & Bird Protection Society of New Zealand Inc v Southland District Council [2023] NZHC 399 at [65].
70 Counsel for Rangitāne did not advance any separate submissions in relation to s 86 of the Local Government Act so this section (relating to the use of the special consultative procedure) is not discussed as a separate matter.
Section 77(1)(c)
[88]Section 77 provides:
77Requirements in relation to decisions
(1)A local authority must, in the course of the decision-making process,—
(a)seek to identify all reasonably practicable options for the achievement of the objective of a decision; and
(b)assess the options in terms of their advantages and disadvantages; and
(c)if any of the options identified under paragraph (a) involves a significant decision in relation to land or a body of water, take into account the relationship of Māori and their culture and traditions with their ancestral land, water, sites, waahi tapu, valued flora and fauna, and other taonga.
(2)This section is subject to section 79.
[89] Rangitāne submit that there is no evidence that the Council considered the options identified in the Bylaw process as being significant to Rangitāne, as the Council believed that only Ngāi Tahu had mana whenua and mana moana status and protected customary rights in the Bylaw Area. Rangitāne says there is no evidence of the Council identifying the nature and extent of the relationship, culture and traditions of Rangitāne as they relate to ss 77(1)(c) matters, and this is supported by the Council’s acceptance of the (inaccurate) Ngāti Kuri cultural narrative in the Technical Report. Rangitāne submit that they tried to engage with the Council from 2019 to correct these mistakes but without success. Rangitāne says that the Council has an obligation to correctly identify the nature and extent of their interests in the Bylaw Area, but the Council failed to do.
[90] The Council disagrees, saying it is clear that it was aware of, and took into account, the relationship of Rangitāne and other iwi with the Bylaw Area over the period of development of the Bylaw and there were many consultation opportunities for Rangitāne. The Council submits that the discussion of iwi rights and interests in the Hearing Panel report is evidence of its compliance with s 77(1)(c).
[91] To the extent that Rangitāne is arguing that the obligation to be informed of the interests held by Rangitāne under s 77(1)(c) places the sole onus on the Council to gather information to be informed of relevant interests, I do not accept that this is a correct reading of the section.
[92] In Akaroa Marine Protection Society Inc v Minister of Conservation, this Court set out the general proposition that decision-makers should be able to rely on interested parties to adduce information in support of their position where they are given the opportunity to do so:71
[63] The Society’s contention that the requirement to be satisfied invokes the need for a reasonable standard of information is uncontroversial. All decision makers must have sufficient, reliable information to make a decision. But context is everything. […] [I]n in cases where an affected person is afforded the opportunity to put all relevant information to the decision maker, then the informational burden on the decision maker is reduced accordingly. The Minister should be able to rely on interested parties to adduce information in support of their respective positions. Of course this is not a rule of thumb in all cases. Where the decision maker has an inquisitorial function, the nature of the duty might be such that further information is required to discharge the inquisitorial duty.
[93] While the Hearing Panel has an inquisitorial function here, I consider the Hearing Panel was entitled to rely on Rangitāne to adduce information to support its position in these circumstances. Clearly, such information is particularly within the knowledge of Rangitāne and identifying it will necessarily require their contribution. This suggests that the engagement and consultation undertaken by the Council is important, including in seeking information about the nature of interests held by Māori in the area in question. As I detail further below, Rangitāne were given several opportunities to provide this information.
[94] It is relevant now to consider the development and status of the Technical Report, given that Rangitāne asserts that its inaccurate discussion of iwi interests in the Bylaw Area underpins the errors made by the Council.
[95] The third version of the Technical Report was finalised on 1 November 2019, shortly before Rangitāne first contacted the Council on 29 November 2019. This
71 Akaroa Marine Protection Society Inc v Minister of Conservation [2012] NZHC 933, [2012] NZRMA 343, [2012] NZAR 665 at [63] (footnotes omitted).
version of the Report said Ngāti Kuri/Ngāi Tahu have mana whenua while Rangitāne have “long-standing connections with the area”. It also said that the Council had met with Ngāti Kuri, the east coast is culturally significant to Ngāti Kuri, the preference of Ngāti Kuri is that vehicle access is restricted across the entire coastline, and “Ngāti Kuri will be actively involved in our processes”.
[96] On 5 December 2019, Rangitāne sent a letter to the Council which said the third version of the Technical Report “[did] not take into account the relationship that Rangitāne o Wairau has with the east coast area, which is within [their] rohe”. The Council sent a letter to Rangitāne on 13 December 2019, assuring Rangitāne that the Council intended to facilitate further consultation and discussion with Rangitāne prior to progressing the Bylaw process, including on matters in the Technical Report. Similar correspondence occurred between the parties in early January 2020.
[97] A hui took place between Rangitāne and the Council on 5 February 2020. There, Rangitāne expressed concerns about their exclusion from the Council’s process to that date and emphasised the nature and extent of their contemporary interests along the east coast. On 22 April 2020, a Council staff member emailed Rangitāne asking if Rangitāne would prepare a cultural impact assessment for the east coast. The next day, Rangitāne replied that they would be interested in preparing a cultural impact assessment, however it appears that no further action was taken by either the Council or Rangitāne in relation to such an assessment. On 9 December 2020, the Council met with Rangitāne to discuss the cultural values section of the Technical Report and the proposed Bylaw process. Rangitāne did not provide any further information for the next version of the Technical Report.
[98] Meanwhile, on 19 November 2020, Council staff sent an email to Ngāti Kuri asking for the input or Ngāti Kuri in the drafting of the cultural values section of the Technical Report. The Council then underwent extensive engagement with Ngāti Kuri about the content of the cultural values section of the Technical Report. The Council received this information from Ngāti Kuri on 3 June 2021.
[99] The fourth version of the Technical Report, released on 24 June 2021, included the cultural values section from Ngāti Kuri in full, preceded by a disclaimer that Ngāti
Kuri had provided that information. The section said “Ngāti Kuri are the tangata whenua who have mana whenua and mana moana in the area” and said Rangitāne and other iwi “have interests in the area”.
[100] On the same day the fourth version of the Report was released, Rangitāne emailed the Council raising concerns about the cultural values section of the Report, specifically that the Council had failed to acknowledge Rangitāne as tangata whenua in the east coast area and had allowed solely Ngāti Kuri to provide information for the cultural values section of the Report. On 25 June 2021, the Council contacted Rangitāne to discuss the concerns raised in Rangitāne’s email to the Council on 24 June 2021.
[101] The fifth and final version of the Technical Report was completed on 1 July 2021 and approved by the Council on 8 July 2021. The Report was amended in response to these concerns raised by Rangitāne in their 24 June 2021 email, with a paragraph of the cultural values section now reading:
2.3 Te Tau Ihu Iwi
It is acknowledged that there are Te Tau Ihu iwi who may consider the area of the draft Bylaw within their rohe as tangata whenua. These discussions are ongoing.
[102] No further changes were made to the Technical Report following the release of this fifth version. The Council says their resources were focused on the consultation process for the proposed Bylaw, rather than further updates to the Technical Report.
[103] On the basis of the Council’s process set out above, I make the following observations.
[104] The material suggests that the Council engaged with Ngāti Kuri more than Rangitāne in the development of the cultural values section of the Technical Report, especially between the third and fourth versions. The Council had some engagement with Rangitāne at this time, but it never progressed to Rangitāne providing input into the fourth version of the Technical Report.
[105] The fourth version of the Technical Report was substantively inconsistent with what Rangitāne had been communicating to the Council. However, the preceding disclaimer that the information in that section of the Report was provided by Ngāti Kuri is relevant here. It is also relevant that this version of the Technical Report was not the final version.
[106] Importantly, the fifth and final version of the Technical Report was altered to reflect the Council’s consultation with Rangitāne. The insertion of para 2.3 (as set out above) acknowledges that the cultural values identified were not exhaustive and contemplates that other iwi may have customary associations with the Bylaw Area. I consider this version of the Report cannot be said to be substantively inconsistent with Rangitāne’s position.
[107] The Technical Report was never intended to be the Council’s final determination of the issues within it. Paragraph 2.3 is explicitly non-exhaustive and foreshadows further consultation with iwi on this issue. Further, the Technical Report’s content was not binding on the Hearing Panel or the Council, and the Council’s understanding of the assertions by iwi of customary associations evolved beyond this point as a result of further consultation. The Hearing Panel addressed this in their report, saying:
It is demonstrably wrong to say that Commissioners were “bound” by “determinations” made in the Technical Report. This Report was prepared by Council officers, in context of recommendations in July 2021 to Council, to notify the proposed Bylaw as the most appropriate option. The Council was not bound by officer advice in the Technical Report, neither are we. For example, we have not accepted the advice in the Technical Report (and the Statement of Proposal) that all vehicle access should be banned in the Te Karaka / Cape Campbell area (our recommended Yellow Zone). We have relied on (inter alia) the evidence and submissions of Rangitane o Wairau and Ngati Kuia to recommend the Yellow Zone area, which enables ATV/UTV access to fishing and harvesting areas.
[108] The Hearing Panel report, delivered to the Council on 18 July 2022, is also relevant here. The report acknowledges that substantially more material relating to the values addressed in the Technical Report has been gathered. It records that the assessment of cultural matters in the Technical Report is not comprehensive and refers to Appendix 2 to the report, which provided relevant background information. The Hearing Panel also notes its view that engagement with all iwi and hapū could have
started earlier, given that a tikanga-based process takes time and there is more than one iwi perspective on relevant values and relationships. The Panel nonetheless observes that the Council sought to engage and elicit relevant information from iwi and hapū over about an 18-month period.
[109] The Hearing Panel report itself has a section dedicated to “Tangata Whenua Issues”. Under this heading, the report identifies the “sharply contrasting positions on the issue of mana whenua, mana moana” (clearly referring to Ngāti Kuri and Rangitāne), an issue which the report explicitly says it does not resolve. The report also records the opportunity given to Rangitāne to “cure” any information gap they perceived existed in relation to sites of significance, historical associations and ongoing connections with the Bylaw area, noting this was not taken up (although Rangitāne nonetheless made submissions addressing the merits of the Bylaw).
[110] In addition, the Hearing Panel report identifies the concern of Rangitāne that “[t]he proposed bylaw would exclude effective and practical access to an important and long-standing cultural harvest area along the East Coast”. Specifically, the report records Rangitāne’s assertion that:72
The proposed bylaw will directly impact Rangitane by preventing vehicular access to the coastal areas of Kapara-te-hau, Mussel Point, Te Karaka, Oruamoa, Waiharakeke and further south to the Waima River. The sites situated along the coast from Marfells Beach to Ward Beach and further south to the Waima river are landlocked and as such access to the area for cultural or customary fishery purposes would be entirely at the discretion of the adjoining landowners.
[111] The report says the Hearing Panel relied on the evidence and submissions of Rangitāne (and Ngāti Kuia, another Te Tau Ihu iwi) to recommend allowing the use of ATVs and UTVs in the Yellow Zone to enable access to fishing and harvesting areas. The report says that the Yellow Zone recommendation “responds to some of Rangitāne o Wairau's concerns about limiting access to fishing, gathering, and customary practices”. I note that Mussel Point and Cape Campbell, which Rangitāne say contains sites of significance, are within the Yellow Zone. Other submitted sites of significance, including the areas from the Awatere River mouth to Lake Grassmere and from the
72 The evidence shows that Rangitāne have arrangements with landowners permitting access to the beach, but there is no guarantee such access will continue.
Flaxbourne River mouth to the Waima (Ure) River mouth, are in the Red Zone. The Yellow Zone was included in the final Bylaw as recommended by the Panel.
[112] In my view, the Hearing Panel report is evidence of compliance with s 77(1)(c). It shows that the Panel considered the submissions made by Rangitāne and recognised that the Bylaw Area was significant to them. The report goes into some detail as to the specific sites that would be less accessible because of the draft Bylaw and recognised that these areas were culturally significant, being the sites where customary activities were undertaken. The report recommended the Yellow Zone in response to these concerns. The report’s descriptions of the customary sites of Rangitāne are consistent with their submissions to the Panel.
[113] The fact that vehicular access is not allowed to access sites of significance in the Red Zone does not render the Bylaw ultra vires under this provision, as while considering the concerns of Rangitāne is required under s 77(1)(c), to what extent this influences the Council’s decision is a matter for the Council.73 This is reinforced by the fact that the Bylaw as adopted by the Council did not align with the preference of any one iwi.
[114] Further, despite the submission from Rangitāne that the Council found only Ngāti Kuri had mana whenua and mana moana status in the Red Zone, the Hearing Panel report expressly notes that it was “not necessary or appropriate to [their] role to undertake an assessment of competing strength of relationship of Iwi and Hapū, with the Bylaw area”. The report rejects the contention advanced by Rangitāne that the Technical Report’s “determination” that Ngāti Kuri are the tangata whenua in the Bylaw Area is binding on the Panel, noting that the Panel also did not accept the advice in the Technical Report that all vehicle access should be banned in the Yellow Zone. As I noted above, the Hearing Panel report specifically detailed the sites within the Bylaw Area that were significant to Rangitāne and how the Bylaw would affect their access to such areas. The cultural values section of the final version of the Technical Report explicitly acknowledged that it was non-exhaustive, and it was clearly not intended to be the Council’s final determination on matters within it.
73 Scott v Auckland City Council [2006] LGHNZ 43 (HC) at [26].
[115] I do not consider that s 77(1)(c) requires the Hearing Panel or the Council generally to determine the competing claims of cultural status by Rangitāne and Ngāti Kuri. While I can appreciate the concerns of Rangitāne that the Council did not, at least initially, fully understand their rights and interests in the Bylaw Area, ultimately, the consideration of the Bylaw’s effect on Rangitāne and their access to sites of significance satisfies the obligation imposed by the provision. This is the case even though the Bylaw limits vehicular access by Rangitāne.
Section 78(1)
[116]Section 78(1) provides:
78Community views in relation to decisions
(1)A local authority must, in the course of the decision-making process in relation to a matter, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter.
[117] Rangitāne submit that the Council did not properly or correctly identify the interests of Rangitāne in the Red Zone, and therefore could not have properly considered their views. The Council submits that an appropriate level of consideration was given to the views of iwi, which were received through consultation on the draft Bylaw and separately through both early and subsequent engagement.
[118] I consider the Hearing Panel report is evidence of the Council’s compliance with s 78(1). The report identifies the interests of Rangitāne in the Bylaw Area and considers their preferred approach to the Bylaw, as discussed above. I observe that the report records (although does not ultimately accept) the submission of Rangitāne that the Bylaw should include a wholesale exemption for tangata whenua from the Bylaw’s operation to allow continued quad bike or vehicle access to enable customary and fishing practices.
[119] As already mentioned, the Council did not find that only Ngāti Kuri had mana whenua and mana moana status in the Red Zone. In addition, the Council recognised
and identified the interests of Rangitāne in the Bylaw Area.74 Section 78(1) has been complied with.
Section 79
[120]Section 79(1) provides:
79Compliance with procedures in relation to decisions
(1)It is the responsibility of a local authority to make, in its discretion, judgments—
(a)about how to achieve compliance with sections 77 and 78 that is largely in proportion to the significance of the matters affected by the decision as determined in accordance with the policy under section 76AA; and
(b)about, in particular,—
(i)the extent to which different options are to be identified and assessed; and
(ii)the degree to which benefits and costs are to be quantified; and
(iii)the extent and detail of the information to be considered; and
(iv)the extent and nature of any written record to be kept of the manner in which it has complied with those sections.
…
[121] Rangitāne submit there is no written record of the Council undertaking “judgments” of the considerations at para (b)(i)–(iv) generally or particularly as they relate to the tangata whenua exemption option proposed by Rangitāne. They contrast the Council’s treatment of this option with the option to preserve the resource consent rights of commercial entities, which was included in the final Bylaw.75
[122] The Council submits that there is no statutory or case law support for the suggestion that a record needs to be provided of having considered s 79. The Council says its general practice is to address s 79 through the decision-making process itself.
[150] For the same reasons as those given in relation to compliance with s 81, I consider the Council has fulfilled its obligations under s 82. As I canvassed above, the Council undertook extensive consultation involving Rangitāne from before the public notification of the Bylaw process and up until the Bylaw was passed. I acknowledge (as the Hearing Panel did) that it was inappropriate that Rangitāne had to make contact with the Council to seek information on 29 November 2019, but I have already concluded this was cured by the Council’s subsequent conduct.
[151] I do not consider that a breach of s 82 is established by the Council not having a process to consult with Māori pre-notification of the Bylaw. Two s 82(1) principles contain a temporal requirement in relation to when each part of consultation must occur. The first is para (c) which contemplates that the decisions are to be taken following consideration of views presented, and para (e), which states the local authority should give the views presented to it due consideration “in making a
decision”. This suggests that s 82 only requires consultation to occur at a point where the outcomes of consultation can be considered in the decision being made, which is of course only logical. Otherwise, the Council has discretion in determining the appropriate way to observe the s 82(1) principles, having regard to the matters in subs (4) and (5).85
[152] In any event, I note that there were communications between the Council and Rangitāne, either via email, phone call or in person, on 29 November 2019, 2 December 2019, 4 December 2019, 5 December 2019 and 13 December 2019, all prior to the public notification of the bylaw process on 7 January 2020. Following this, the Council sent letters to other iwi on 19 February 2020 to arrange individual meetings with each of them.
[153] Further, to the submission by Rangitāne that the Council’s consultation procedures misfired as they related to the content of the Technical Report, I do not accept that this constitutes a breach under s 82. As I have explained already, the Technical Report was never intended to be the Council’s final determination of the issues raised within it. The Technical Report’s content was not binding on the Hearing Panel or the Council, and the Council’s understanding of the assertions of customary associations by iwi evolved beyond this point as a result of further consultation. In any event, consultation does not require the Council to agree with the position taken by Rangitāne.86
[154]I therefore find that the Council complied with its obligations under s 82.
Sections 83(1)(a) and 83AA(a)
[155] As the Council formed the view that the proposed bylaw would have a significant impact on the public, a special consultative procedure was mandated.87 Sections 83(1)(a) and 83AA(a) provide:
85 Local Government Act 2002, s 82(3).
86 Walsh v Pharmaceutical Management Agency [2010] NZAR 101, [2008] BCL 417 (HC) at [207]; and Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA) at 676.
87 Local Government Act, s 156(1)(a).
83Special consultative procedure
(1)Where this Act or any other enactment requires a local authority to use or adopt the special consultative procedure, that local authority must—
(a)prepare and adopt—
(i)a statement of proposal; and
(ii)if the local authority considers on reasonable grounds that it is necessary to enable public understanding of the proposal, a summary of the information contained in the statement of proposal (which summary must comply with section 83AA); and
[…]
83AA Summary of information
A summary of the information contained in a statement of proposal must—
(a)be a fair representation of the major matters in the statement of proposal; and
[…]
[156] Rangitāne submit that the Statement of Proposal does not contain a fair representation of the major matters as is required under s 83AA.
[157] This submission is misconceived in the sense that the effect of ss 83(1)(a) and 83AA(a) as set out above is that any summary prepared by a local authority of the information contained in a statement of proposal must be a fair representation of the major matters in the statement of proposal. Section 83AA does not impose a statutory requirement that the statement of proposal contains a fair representation of the major matters.
[158] Rangitāne criticise the Statement of Proposal on several substantive points. These criticisms repeat points addressed in other contexts in this proceeding, including that the Council engaged with Ngāti Kuri on a differential basis, failed to consider that Rangitāne had any rights or interests in the Bylaw Area and focused on values present on the east coast, as set out in the Technical Report, which Rangitāne say were inaccurate.
[159] I consider that these matters are assessed elsewhere in the judgment and do not require separate consideration in this context.
Conclusion
[160] I conclude that the Council has not breached its obligations under pt 6 of the Local Government Act. The ground of review identified in [38](d) of the statement of claim fails.
[161] I now address the remaining grounds for review. I address each in turn although there is some overlap between them.
Was the decision procedurally unjustified?
[162] Rangitāne assert that the Council’s decision was procedurally unjustified for several reasons, and I address each in turn.
Breach of legitimate expectation of proper consultation and taking relevant information into account
[163] Rangitāne submit the Council breached the legitimate expectations that they would be properly consulted in relation to the Bylaw and that all relevant information would be taken into account, including the nature and extent of Rangitāne’s customary interests in the Bylaw Area. This is the ground of review set out at [38](c)] above.
[164] In their submissions (but not expressly in their statement of claim), Rangitāne appear to argue also that the differential basis upon which the Council engaged with Ngāti Kuri relative to Rangitāne breached the legitimate expectation of Rangitāne that they would be properly consulted.
[165] The Court of Appeal has held that an applicant must establish three elements to succeed on a claim for breach of a legitimate expectation:
(a)a commitment made by a decision-maker, whether by a promise, settled practice or policy;
(b)reasonable reliance placed on the commitment by the applicant; and
(c)that a particular remedy, if any, should be provided.88
[166] I consider any legitimate expectation of consultation that arose was met here. As set out above, the Council engaged in extensive consultation with Rangitāne.89 Any differential treatment between Rangitāne and Ngāti Kuri, which I discuss further below, does not breach a legitimate expectation of consultation. Rangitāne does not provide any evidence of a commitment from the Council that they would be consulted on the same basis as Ngāti Kuri, either through promise, settled practice or policy.
[167] I further consider that any legitimate expectation that the customary interests of Rangitāne in the Bylaw Area would be taken into account was met. I have already found that the Council properly considered the customary associations of Rangitāne with the Bylaw Area, as they were obliged to under s 77(1)(c) of the Local Government Act.90 There is no evidence from Rangitāne establishing that they had a legitimate expectation that the Hearing Panel or the Council would reconcile the completing claims of mana whenua between Rangitāne and Ngāti Kuri /Ngai Tahu.
[168]This ground is therefore not made out.
Differential basis of consultation between Rangitāne and Ngāti Kuri
[169] Rangitāne submit that the decision was procedurally unjustified because of the differential basis upon which the Council engaged with Ngāti Kuri relative to Rangitāne. This is the ground of review set out at [38](b) above.
[170] The Council says Rangitāne cannot show that the Council demonstrated differential treatment in making its decision to adopt and implement the Bylaw as the Council undertook substantially the same consultation processes with relevant iwi in Marlborough. All iwi were afforded similar opportunities to engage with, and
88 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [125]– [127].
89 See [139]–[145] above.
90 See [88]–[115] above.
contribute to, the proposed Bylaw process, and the end effect of the Bylaw is the same for all iwi.
[171] Rangitāne appear to argue that the asserted differential treatment between it and Ngāti Kuri breaches the Treaty obligation of good faith. Rangitāne refer to this Court’s decision in Hart v Director-General of Conservation.91 There, Rangitāne and Ngāti Kuri both claimed to be entitled to the jawbones and teeth of two deceased whales that had washed ashore near the mouth of the Awatere River, with both iwi having cultural associations with whales (and the area). It was agreed between the two iwi and DoC that the jawbones would remain in the possession of DoC pending Rangitāne and Ngāti Kuri reaching an agreement about entitlement to the jawbones. No meaningful discissions took place. Some years later, the Minister of Conservation advised DoC to make an allocation decision. While there was some engagement with Rangitāne by DoC, Rangitāne was unaware that DoC was proposing to make an allocation decision, or that it was proposing to give the jawbones to Ngāti Kuri, and was given no proper opportunity to engage or respond. By contrast Ngāti Kuri were fully informed of what was being contemplated, and they had an opportunity to address DoC on its proposals.
[172] Rangitāne refers in its submissions to an excerpt from Hart v Director-General of Conservation where the Court found that the Crown had breached its Treaty obligation to deal with Rangitāne in good faith by not engaging with Rangitāne in an open and transparent way in relation to a matter of significant cultural importance them.92 Rangitāne argues that in the same way as the obligation of good faith affected the outcome in Hart v Director-General of Conservation, it affects the outcome here.
[173] The issue with this submission is that, as I found above, the Council’s only Treaty obligations are those explicitly included in the Local Government Act at pts 2 and 6, which does not extend to the obligation of good faith. Meanwhile, in Hart v Director-General of Conservation, DoC was required to make decisions in a manner that gives effect to the Treaty principles per s 4 of the Conservation Act.93 There are
91 Hart v Director-General of Conservation [2023] NZHC 1011, [2023] 3 NZLR 42.
92 At [79]–[83].
93 Hart v Director-General of Conservation, above n 91, at [77]–[78].
also some significant and material differences between the treatment of Rangitāne by DoC and the Council respectively, but I am not required to traverse these here.
[174] However, in Hart v Director-General of Conservation, the Court also found that DoC’s actions amounted to a breach of a legitimate expectation. This was because DoC’s course of action departed from what had previously been agreed.94
[175] Here, the Council made commitments when it extended invitations to both Rangitāne and Ngāti Kuri to nominate a representative sit on the Hearing Panel. This offer was on the condition that these groups would not be able to make a submission to the Panel. The Council says this condition was included to ensure the commissioners appointed did not have a conflict of interest when considering submissions on the Bylaw which would require them to stand aside from decision- making. Rangitāne was told that the same offer was put to Ngāti Kuri, and that the position of Ngāti Kuri at the time was that they would nominate a commissioner.
[176] Ngāti Kuri ultimately accepted the Council’s offer. Rangitāne declined the offer in an email sent on 9 August 2021, which said:
As I understood the discussion, you were offering Rangitāne the opportunity to participate as a decision maker in the by law process (potentially, if they wish to be a part of the decision making process), on the same basis as Te Rūnanga o Kaikōura. If Rangitāne were to accept the offer, I understood you to say that Rangitāne would not then be able to continue with its submission. If I have understood you correctly, I don’t think this proposal will work for Rangitāne because, as you know, we are concerned that the consultation process has not been adequately undertaken, given our view that Council has proceeded on the basis that Ngati Kuri is the only iwi with mana whenua in the proposed bylaw area. We need to reserve our rights/position in relation to this as it remains a very significant issue for us. Also, we will be looking to seek substantive amendments to the bylaw and we wish to maintain our rights, and the opportunity to advance our submission in this regard.
[177] During the Hearing Panel process, there was a debate over whether the Panel should determine which iwi are tangata whenua in the Bylaw Area for the purpose of making recommendations on the proposed Bylaw. The written submissions for Rangitāne asserted that they held mana whenua and mana moana status in the Bylaw Area. In response to this submission, Ngāi Tahu sent a letter to the Council on
94 At [50]–[52] and [70]–[74].
12 October 2021 rejecting those assertions and setting out its position that they are tangata whenua and have iwi authority in the Bylaw Area. The Council then forwarded the letter to the Hearing Panel, with the consent of Ngāi Tahu, so that the letter could be put on the record and released to submitters on the proposed Bylaw (including Rangitāne) for comment. The Hearing Panel purported to use their powers under s 83(3) of the Local Government Act to receive the letter from Ngāi Tahu, which allows local authorities to request comment or advice from any person in respect of a proposal, being the proposed Bylaw.
[178] The Council says the issues raised in the letter from Ngāi Tahu should be seen as regarding mana whenua, which is an issue adjacent to the Bylaw process. The letter was directed to the Mayor and councillors, rather than the Panel through a submission.
[179] Notwithstanding the Council’s submission, I consider the letter from Ngāi Tahu became, in effect, a submission when the Council forwarded the letter to the Hearing Panel. The letter’s sole purpose was to set out the claim by Ngāti Kuri to mana whenua. The fact that it was addressed to the Mayor and councillors rather than the Commissioners on the Hearing Panel became immaterial once the letter was forwarded to the Panel. That the letter was effectively a submission is also supported by the fact that the letter was received via s 83(3), which applies to comments or advice only in respect of a proposal or any views on the proposal, with the proposal being the proposed Bylaw.
[180] When the Council made the offer to Rangitāne to nominate a commissioner and informed Rangitāne that the same offer was being made to Ngāti Kuri, a legitimate expectation was established. This is because the Council committed to not allowing Rangitāne or Ngāti Kuri to make a submission if they appointed a commissioner, and Rangitāne reasonably relied on this commitment when they rejected the Council’s offer so that they could make a submission.
[181] The remaining question is what remedy, if any, should be provided. The Court of Appeal has held that this is often the most difficult part of the inquiry.95
95 Comptroller of Customs v Terminals, above n 88, at [127].
[182] Rangitāne has proposed that the Bylaw be set aside, quashed, or modified to exclude Rangitāne participating in customary activities. I am not satisfied that this remedy, or any other judicial review remedy, is appropriate in these circumstances. This is because the letter did not have any material effect on the decision. The letter only concerned the claims of Ngāti Kuri to mana whenua, which was not a matter to be determined by either the Panel or the Council. The Council was also already aware of this position having worked with Ngāti Kuri in developing the Technical Report. In the alternative, I consider that, for the same reasons, the decision would not have been different had the Council complied with the legitimate expectation, which is a basis for refusing to grant discretionary relief.96
Was there apparent bias given a Ngāti Kuri representative was on the Hearing Panel?
[183] Rangitāne submit that the presence of a Ngāti Kuri representative on the Hearing Panel created the appearance of bias. This argument is the ground of review set out at [38](g) above. Ms Radich acknowledges that this ground is unlikely to succeed on its own. She says this ground overlaps with the other grounds of review and reinforces the position of Rangitāne that the decision is flawed.
[184] Rangitāne say the test to be applied is whether a reasonable person would consider that their case could be adversely affected by the presence of a Ngāti Kuri member on the Hearing Panel. This is essentially the test for apparent bias set out in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd of whether a fair-minded observer might reasonably apprehend that a decision-maker might not bring an impartial mind to decision-making.97 This test was formulated in relation to judges undergoing decision-making in a judicial context. I considered this test in the Interim Judgment.98 On reflection, I observe that it is not universally applicable in all contexts. In assessing bias, the particular circumstances are of supreme importance, with these dictating the test that is to be applied.99
96 Wislang v Medical Practitioners Disciplinary Committee [1974] 1 NZLR 29 (SC) at 42 and 45.
97 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].
98 Interim Decision, above n 1, at [110].
99 Jeffs v New Zealand Dairy Production Marketing Board [1967] NZLR 1057 (PC) at 1066.
[185] The context of the present decision is the making of a bylaw by a council. The Council is democratically elected and accountable and expected not to have preconceived views on what it thinks is the best course of legislative action before consultation begins. The decision being considered is one that reasonable minds might disagree on. This is significantly different from an unelected judge applying the law. I consider the apparent bias test unworkable in the circumstances. The test of predetermination is more appropriate. This Court in Save Chamberlain Park Inc v Auckland Council helpfully summarised the authorities to explain this point:100
[176] […] As Kós J stated, “where Parliament determines that a decision should be made by a Minister, a person of inherently political complexion, it is unavoidable that that person will be influenced by policy and political considerations … it must be taken to have accepted that the decision-maker will bring a policy perspective to his or her determination, and with it a probable predisposition on the merits.”101
[177] In the context of local authority decision-making, Duffy J put it this way:102
There is nothing objectionable about councillors holding preliminary or “in principle” views on decisions, provided when it comes to making the actual decision, they do so with an open mind to other alternatives. Indeed it is always likely to be the case that members of local authorities will hold particular views on certain issues. The effect of local body democracy is that persons are voted into office holding certain views. What is important is that when they come to make decisions they follow a thought process that recognises a change of mind may eventuate.”
[178] More generally Philip Joseph observes “some decision-makers, such as … local authorities or planning bodies, routinely announce policy preferences and approach their decision-making so as to promote their policies. Their decisions remain unimpeachable, provided they retain an open mind, are amenable to persuasion and do not commit to a particular outcome in individual cases.”103 That requires, as Lord Thankerton stated in Franklin v Minister of Town and Country Planning, that the decision-maker’s mind was not “so foreclosed that he gave no genuine consideration” to the material before him.104
100 Save Chamberlain Park Inc v Auckland Council [2018] NZHC 1462 (one footnote omitted).
101 Back Country Helicopters Ltd v Minister of Conservation [2013] NZHC 982, [2013] NZAR 1474 at [131] and [133].
102 Whakatane District Council v Bay of Plenty Regional Council [2009] 3 NZLR 799 (HC) at [117].
103 Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at [25.5.5].
104 Franklin v Minister of Town and Country Planning [1948] AC 87 (HL) at 103.
[179] Baragwanath J has provided perhaps the most succinct statement of what is required:105
I am satisfied that “open minded” in contexts such as the present does not mean “without predisposition” but “prepared, despite predisposition, honestly to consider whether to change its mind”.
[180] Much of this is explicable by the fact predetermination is conceptually distinct from an allegation of bias. While predetermination is concerned with “closed mind” decision-making, bias is concerned with public perceptions as to impartial decision- making.106 As the learned authors of Administrative Law state:107
The significance of the conceptual distinction between predetermination and the apprehension of bias lies in the fact that administrative decision-makers, unlike judicial decision-makers, will often, quite rightly, be influenced, formally or informally, in their decision by policy considerations. They will naturally approach their task with a legitimate predisposition to decide in accordance with their previously articulated views of policies. The fair-minded observer knows this, appreciates that there is no question of personal interest, and does not apprehend bias where there is simply a predisposition to decide one way rather than the other in accordance with previous policies. But where the question is whether the decision-maker has closed his mind and slipped from predisposition to predetermination it seems unnecessarily complication to involve the fair-minded lay observer.
[186] The appointment of a commissioner from Ngāti Kuri to the Panel is insufficient to support an allegation of predetermination. There is no evidence that the Commissioner appointed had a closed mind. I note that the Commissioner has whakapapa to both Ngāti Kuri and Rangitāne, as well as other Te Tau Ihu iwi. Finally, the Hearing Panel’s recommendation of the Yellow Zone, which Ngāti Kuri was against and is more favourable to Rangitāne than the proposed draft Bylaw, also weighs against a finding of predetermination.
[187]This ground of review fails.
105 Friends of the Turitea Reserve Society Inc v Palmerston North City Council [2008] 2 NZLR 661 (HC) at [102].
106 Philip Joseph, above n 103, at [25.5.5].
107 HWR Wade and CF Forsyth Administrative Law (11th ed, Oxford University Press, Oxford, 2014) at 394.
Was the decision based on a material error of fact?
[188] Rangitāne submit that the cultural values section of the Technical Report contained errors of law and fact, as it did not correctly identify Rangitāne’s rights and interests in the Bylaw Area. This is the ground set out at [38](e) above. The Council disagrees.
[189] This ground fails for two reasons. First, the final version of the Technical Report does not contain the error that is contended by Rangitāne. As set out previously, the Report identifies Ngāti Kuri as “the tangata whenua who have mana whenua and mana moana in the area”, but records that this information was provided by Ngāti Kuri. Further, the Technical Report also acknowledges that there are other iwi who “consider the area of the draft Bylaw within their rohe as tangata whenua”. It says, “discussions are ongoing”, foreshadowing that the content of that section was not determinative nor exhaustive and was subject to change.
[190] Second, in order for an error of fact and/or law to constitute a reviewable error, it must be material, in the sense that it influenced the decision.108 As Thomas J held, the error must be “in the actual making of the decision which affected the decision itself”.109
[191] This requirement has not been established here. The Technical Report was not binding on the Hearing Panel or the Council, as the Hearing Panel recognised.110 The relevant section of the final Technical Report was preceded by a disclaimer that Ngāti Kuri had provided that information. The Council’s evidence is that the Technical Report was primarily utilised for its summary of the biological and ecological values of the east coast, rather than its summary of cultural values. The Council submits that its consideration of iwi interests in the Bylaw Area was informed by much more than the Technical Report, including the views expressed in letters, hui and submissions by
108 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [53]; Peters v Davison [1999] 2 NZLR 164 (CA) at 202; Glaxo Group Ltd v Commissioner of Patents [1991] 3 NZLR 179 (CA) at 184.
109 Peters v Davison, above n 108, at 202; citing R v Lord President of the Privy Council ex parte Page [1993] AC 682 at 702. This statement is pertaining to an error of law, but it equally applies to an error of fact. See Ririnui v Landcorp Farming Ltd, above n 108, at [53] and Glaxo Group Ltd v Commissioner of Patents, above n 108, at 184.
110 See [107] above.
various iwi, including from Rangitāne. This is consistent with the Hearing Panel report, in which the Panel identified the assertion of tangata whenua status by Rangitāne in the Bylaw Area despite this being absent from the Technical Report. The Hearing Panel recommended the Yellow Zone in response. Beyond this, the Panel said they would not address the issue of competing tikanga or competing strength of relationship with the proposed bylaw area.
[192]Thus, this ground of review fails.
Was the decision based on a material error of law?
[193] Rangitāne apprehended from the Council’s evidence that the Council’s position was that the special consultative process it undertook discharged all of its obligations under pt 6. Rangitāne submit this position is an error of law (although this is not expressly pleaded in their statement of claim). However, it appears that this was not the position of the Council. The Council’s submissions refer to the special consultative process only in the context of ss 82, 83 and 83AA. Sections 83 and 83AA directly concern the special consultative procedure, so there is no error of law there.
[194] With respect to s 82, the Council correctly observes that the special consultative procedure did not absolve it of its obligations under s 82.111 I have found that the Council fulfilled its obligations under this provision. Therefore, there is no material error of law there.
Conclusion
[195] As I have found that none of the challenges to the lawfulness of the Bylaw advanced by Rangitāne are established, the claim must fail overall.
Result
[196]The application for judicial review is dismissed.
111 Citing Gwynn v Napier City Council [2018] NZHC 1943.
Costs
[197] Costs should follow the event. I encourage the parties to agree costs. If the parties cannot agree costs, the Council may file and serve a brief memorandum as to costs within 20 working days of the date of this judgment and Rangitāne may file a brief memorandum in response within a further 10 working days. I will then determine costs on the papers.
McQueen J
Solicitors:
Radich Law, Blenheim for Applicants Simpson Grierson, Wellington for Respondent
APPENDIX 1
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