Moana Te Aira Te Uri Karaka Te Waero v The Minister of Conservation HC Auckland M360-Sw01

[2002] NZHC 101

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M360-SW01

UNDER the Judicature Amendment Act 1972
BETWEEN MOANA TE AIRA TE URI KARAKA TE WAERO
Plaintiff

AND THE MINISTER OF CONSERVATION
First Defendant

AND AUCKLAND CITY COUNCIL
Second Defendant

Hearing: 12-13 February 2002

Counsel: Charl Hirschfeld and Tavake Afeaki for Plaintiff
Virginia Hardy and Annsley Kerr for First Defendant
David Kirkpatrick and Graeme Palmer for Second Defendant

Judgment: 19 February 2002

JUDGMENT OF HARRISON J

SOLICITORS

Morton Tee and Company (Auckland) for Plaintiff
Crown Law Office (Wellington) for First Defendant
Simpson Grierson (Auckland) for Second Defendant

Introduction

[1] On 21 March 2001 the plaintiff, Moana Te Waero of Waiheke Island, filed an application in this Court seeking a declaration and order to the effect that the Minister of Conservation (“the Minister”), who was then cited as the only defendant, acted illegally, unreasonably or unfairly in classifying three contiguously linked parcels of land (known separately as Lot 277, part Lot 278 and Allotment 128) on Waiheke Island known as the Ostend Reserve (“the land”) as recreation reserves under the Reserves Act 1977. Consequently the land vested in the Auckland City Council (“the Council”). Ms Te Waero has now joined the Council as second defendant.

[2] Ms Te Waero is a Maori of Ngati Paoa descent. Ngati Paoa is an iwi recognised by s 4 Hauraki Maori Trust Board Act 1988. Ms Te Waero has issued this proceeding in a representative capacity. In 1989 Ngati Paoa filed a statement of claim with the Waitangi Tribunal. The claim identified Waiheke Island, inter alia, as part of its subject matter. As a result of the Minister’s classifications, Ms Te Waero alleges that the land is currently unavailable for use in settling Ngati Paoa’s claims against the Crown.

[3] It is common ground that the Minister did not consult with Ms Te Waero or other members of the local iwi before classifying the land as recreation reserves variously between 1996 and 1999. At issue is whether or not the Minister was subject to a duty pursuant to s 4 Conservation Act 1987 to consult with Ngati Paoa when making those classification decisions.

Background

[4] All three parties filed affidavits. On 5 April 2000 Ms Te Waero, together with Hariata Gordon also of Waiheke Island, swore an affidavit which ran to 158 pages and separately included three volumes of exhibits. Regrettably the affidavit contained a great deal of irrelevant material, while omitting critical information.

[5] Two senior employees of the Department of Conservation (“the Department”) have sworn affidavits for the Minister. The first, on 31 March 2001, is from Mr David Bayley, a community relations officer in the Auckland Conservancy of the Department. He is responsible for processing applications from the Department from local authorities seeking consents under the Reserves Act. He has over 30 years experience in administering reserves and Crown land.

[6] Mr Bayley provided this evidence about the history of reserves:-

“Lot 277 and part Lot 278 were vested in the Crown as recreation reserves on deposit of the subdivisional plan DP 11378 on 4 October 1917. In 1925 and pursuant to s 26 of the former Public Reserves and Domains Act 1908 both areas were declared by New Zealand Gazette (1925, page 2460) to form part of the Waiheke Domain. The Domain was managed by the Waiheke Domain Board.

In 1946 pursuant to s 48 of the Public Reserves, Domains and National Parks Act the Ostend Road Board was appointed as the Waiheke Domain Board (New Zealand Gazette 1946, page 1797). Some years later the Waiheke Road Board assumed these functions.

In 1970 pursuant to the Local Government Commission Act 1967 the Waiheke Road Board was dissolved by orders published in the New Zealand Gazette (1970, page 459) and the Waiheke County Council assumed all the functions of the former Waiheke Road Board.

In 1974 Allotment 128 was deemed to be Crown land being severance from the reclamation of part of the Okahuiti Creek to form Causeway Road. Pursuant to the Land Act 1948 and the Reserves and Domains Act 1953, Allotment 128 was set apart as a recreation reserve, declared to be a public domain to form part of the Waiheke Domain, and administered as a domain by the Waiheke Domain Board. (New Zealand Gazette 1974, page 2078).

In 1985 the Waiheke County Council granted a lease to the Waiheke Sports Club over 400 square metres of land in the domain comprising portions of all the three reserve areas described above at paragraph 4. The lease was granted with the consent of the former Department of Lands and Survey in terms of the Reserves Act 1977. The lease commenced on 30 August 1985 with a fourteen-year term to expire on 29 August 1999. There was no renewal clause but there was provision for the lease to be run on after the expiry date on a month-to-month basis with the consent of the Council. The leased area is shown on the map attached and marked as “A”.”

[7] Mr Bayley gave evidence that on 28 November 1996 the Council wrote to him advising that the Waiheke Community Board had recommended that Lot 277 be classified as a recreation reserve. It formally requested the Minister to classify and gazette the reserve accordingly, noting that under s 16(5)(a) Reserves Act it was unnecessary for the Minister to publicly notify the classification since it did not suggest any change from current usage. Mr Bayley agreed with this view.

[8] On 2 April 1998, some 18 months after receipt of the Council’s application, Mr Bayley advised that Lot 277 would be classified shortly. His letter confirmed that the Department and not the Council owned Lot 277. He advised that the land would automatically vest in the Council in trust for recreation purposes by virtue of a s 26A(l) and (2) Reserves Act once the reserve was classified but outright ownership would still remain with the Department.

[9] On 2 April 1998 Mr Bayley submitted a proposal for approval of the Council’s request to his immediate superior, Mr Warwick Murray, the Department’s community relations manager. His proposal concluded that the Council had complied with the requirements of the Reserves Act and that consent was appropriate.

[10] Mr Bayley’s submission also contained a standard form checklist. Paragraph 2(g) posed this question:-

“Has sufficient effort been made to accommodate the views of any body consulted by the local authority (e.g. iwi)? Put N/A if no such consultation was undertaken.”

Mr Bayley answered this question “N/A”. Otherwise neither his submission nor the checklist contained any reference to the provisions of s 4 Conservation Act.

[11] On 6 April 1998 Mr Murray, who had the appropriate delegated authority, consented to the Council’s application. On 23 April 1998 the New Zealand Gazette published a notice formally classifying Lot 277 as a recreation reserve.

[12] The Department dealt with part Lot 278 and Allotment 128 at a later stage. On 27 April 1999 the Waiheke Sports Club (“the sports club”) wrote to the Department drawing its attention to the existence of potential Treaty claims filed by Ngati Paoa and other Hauraki Maori tribes. Additionally the sports club advised that it had occupied land on the Ostend Domain for over 35 years; for 14 of those years, its occupation had been pursuant to a lease with the Council’s predecessor. The sports club noted that it was seeking to renegotiate its lease and that the certificates of title showed that the Department owned the land with the Council responsible for daily administration.

[13] On 25 May 1999 Mr Bayley replied advising, inter alia, that:-

“In regard to your question on ownership of this portion of the domain we can confirm that the area currently under lease to the club lies on three separate portions of the Waiheke Domain which all form part of our department’s estate and are held as recreation reserves subject to the provisions of the Reserves Act 1977. The Auckland City Council administers these three reserves on behalf of the department and in terms of the Reserves Act. If a new lease was to be granted to the club, both the club and the council would need to reach agreement on the proposal.

The council administers the major portion of the area currently leased to the club in a limited control and management role and acting in its capacity as the Waiheke Domain Board. In view of this limited management role by the council, our department will need to be approached seeking our consent to the granting of a concession to the club to occupy the major portion of the area currently under lease in terms of the Conservation Act 1987 . . . .”

[14] On 28 May 1999 Mr Bayley wrote a comprehensive and, if I may say so, constructive letter to the sports club’s solicitor. It was clearly designed to assist the sports club in resolving its leasing problems. Mr Bayley sent a copy to the Council. In the course of his letter Mr Bayley advised the sports club’s solicitor that, of the three sections of the domain located at Ostend, Lot 277 had been classified under the Reserves Act but part Lot 278 and Allotment 128 had yet to be classified. He advised that the two unclassified blocks had what he described as “was formerly domain - now administered as a recreation reserve pending classification” status.

[15] The Department was apparently caught in the crossfire of a dispute between the Council and the sports club about renewing the latter’s lease over the Ostend Domain. Mr Bayley considered other options for resolution of the sports club’s request including whether it may be more appropriate to reclassify the land from recreation to local purpose reserve. On 29 June 1999 Ms Gordon, acting in her capacity as Chairperson of the Ngati Paoa Whanau Trust Board, wrote to the Auckland Conservator seeking assistance for the sports club’s cause. The letter enclosed a copy of Ms Gordon’s letter to the Council of the same date complaining about the conduct of the local Community Board. She noted that the sports club had approximately 60% Maori membership including Ngati Paoa families. She requested the assistance of the Council’s chief executive officer to ensure that the lease was renewed.

[16] On 6 July 1999 the Council wrote to the Department with a specific request to classify the two remaining unclassified sections, part Lot 278 and Allotment 128, as recreation reserves as soon as possible. The Council stated the purpose of Council’s request was to provide the domain with “a unified status and simplifying management of the whole of the reserve.” It also requested urgency because it wished to establish a skateboard area there. The Council referred to the Community Board’s wish to place:-

“. . . a greater community focus on the reserve because its central location and availability to public transport, rather than have the reserve almost the exclusive ‘domain’ of the club.”

[17] On 12 July 1999 Mr Bayley prepared a submission for Mr Murray on the Council’s application to classify part Lot 278 and Allotment 128 as a recreation reserve. It was in a similar form to his submission for Lot 277. He concluded that the Council had complied with the requirements of the Reserves Act and recommended that Mr Murray consent to its request for classification. As with Lot 278, he advised that the exemption from publicly advertising the classification under s 16(5)(a) applied. This was because these two areas were domain and administered as recreation reserves pending classification.

[18] Mr Bayley’s submission contained another standard form checklist. The terms of paragraph 2(g) differed from its predecessor for Lot 278. On this occasion it included a reference to s 4 Conservation Act. The question posed was:-

“Does the action taken by the department (if any) meet the requirements of s 4 of the Conservation Act (to the extent this is consistent with the applicable provisions of the Reserves Act)? Put N/A if no such action was undertaken.”

Mr Bayley answered this question “N/A”.

[19] He deposed that he considered no consultation was necessary pursuant to s 4:-

“. . . given the classification would facilitate resolution of the dispute over the lease and management of the reserve.”

[20] On 3 August 1999 Mr Murray acting in accordance with his delegated authority consented to the Council’s application. On 12 August 1999 the New Zealand Gazette published a notice classifying part Lot 278 and Allotment 128 as recreation reserves.

[21] On 6 June 2001 Mr Murray swore an affidavit. It was largely confirmatory of Mr Bayley’s evidence. He did, however, explain his own reasons for consenting to the Council’s application for classification of the land and subsequent events.

[22] Mr Murray dealt first with his delegated decision to classify Lot 277 as recreation reserve. He deposed:-

“I did not believe that consultation with iwi was necessary when considering the Auckland City Council’s application and its submissions. I was aware of the s 16(5) Reserves Act 1977 exemption from advertising and as I recall considered I had a discretion in respect of consultation with iwi. Given the long history of this reserve being used for recreation purposes and the proposed future use of the reserve I considered there was no practical alternative classification to ‘recreation’. I did not seek any additional information. At this time the Department of Conservation was not aware that Ngati Paoa or the Waiheke Sports Club had any concerns about the classification process. As a result, no steps were taken to inform them of the classification or seek their input.”

[23] He next discussed classification of part Lot 278 and Allotment 128, observing:-

“I considered consultation with iwi was discretionary. There was no practical alternative classification to ‘recreation’. I had seen the letter from Hariata Gordon referred to in David Bayley’s affirmation at paragraph 30 which indicated she supported a further lease to the Waiheke Sports Club . . . The use of the land as a sports club was consistent with classification for recreation purposes . . .”

[24] Mr Murray then referred to events following classification. On 14 December 1999 the Minister requested an urgent briefing from the Department on classification of the Ostend Domain. This request followed submissions made to her by the sports club and Ngati Paoa. Both expressed their concerns about the Council’s unwillingness to extend the club’s lease and the vesting of part Lot 278 and Allotment 128 in the Council. Mr Murray says:-

“It was at this point that I became fully aware of the nature of Ngati Paoa’s concerns and the extent of their involvement in the club’s dispute with the Auckland City Council over the lease . . . On investigation of this matter, I concluded in hindsight that Ngati Paoa should have been consulted about the decisions concerning the classification of the reserve rather than the Department deciding that consultation was not necessary. My view was based largely on the fact that they had a specific interest in the reserve and should have been consulted in case there was anything relevant they could contribute to the classification decision. In respect of the lease issue, I considered that the Department of Conservation had a responsibility to make a genuine effort to facilitate the resolution of the dispute with the Auckland City Council.”

[My emphasis]

[25] Mr Murray expanded on the limited scope of his concession to consultation about the classification process in these passages in his report to the Minister dated 16 December 1999:-

“This reserve is vested in trust in the Council to control and to manage. In terms of both the provisions of the lease and Reserves Act, the Council holds the necessary powers to terminate the lease and require the club to remove their clubrooms from the site, or alternatively, to renew the lease, without requiring the consent of either the Department or yourself.

However, if the Council wished to reclassify the reserve from a recreation reserve to a local purpose (site for a community hall) reserve, or wished to cancel its vested powers in the reserve to enable the land to be disposed of, then the Council would need to seek the consent of the Department in terms of the Reserves Act, who holds (sic) delegated powers under the said Act from yourself to deal with such matters.”

[26] On 20 December 1999 Ms Te Waero filed a claim with the Waitangi Tribunal. She alleged that the Crown had actively permitted the land on which the club is situated to be classified as recreation reserves in 1996, 1998 and 1999. Accordingly, she alleged, that the Crown had acted without consulting Ngati Paoa when its existing claim had not been finally and fully settled; that the Crown has created a prejudice against Ngati Paoa by not acting to stop the classification of the property, thereby formalising the Council’s position; and that as a consequence the land was not now available for use by the Crown to settle Ngati Paoa’s claims.

[27] Ms Te Waero’s application also incorporated a claim for the sports club. She alleged that both Ngati Paoa and the sports club were prejudiced by the Council’s actions in not renewing the club’s lease in late 1999. She identified many members of the sports club as Ngati Paoa.

[28] On 20 February 2001 the Minister wrote to the Council’s Chief Executive Officer about the dispute relating to Ostend Domain and the club. Her letter noted:-

“The vesting of the land in the Auckland City Council was made without the Department undertaking the required consultation with iwi to fulfil Treaty obligations. The Department accepts that because of that the vesting proceeded in error. On the Department’s advice, I suggested that a revesting back into the Department by the Auckland City Council might address some of the problems that had been generated by this issue.

Your letter advises me that Council is not of a mind to consider that option. I agree with your comment that the domain is an important recreational facility. But I understand both the local sports club and Ngati Paoa concerns were primarily centred on the Community Board’s earlier intention to remove the sports club and their existing facility from the grounds.”

[29] Mr Murray referred to a meeting which he attended on 2 June 2000. Also present were the Minister and representatives of Ngati Paoa and the club. He said the sports club representatives were seeking the Minister’s support in their attempts to obtain approval from the Council to renew their lease; and that Ngati Paoa, while seeking to have the lease renewed, were also requesting the Minister to revoke vesting the reserves in the Council. They argued that the Department vested the land in full knowledge of the tribe’s claim, which amounted to a deliberate attempt to circumvent the Treaty claim process.

[30] Mr Murray said that he acknowledged he made an error in consenting to the classification resulting from the vesting without consulting either the tribe or the Hauraki Maori Trust Board. He offered a personal apology to the iwi representatives at the meeting. However, Mr Murray emphasised that he did not consent to vesting a reserve in the Council under the Reserves Act; vesting under s 26A occurred automatically after classification of a reserve for recreation or local purposes. He emphasised that his concession related to classification only.

[31] An exchange of correspondence then followed between the Minister and the Council. At one stage the Minister was prepared to exercise her power to cancel the vesting in the Council, appointing it instead to control and manage the reserve as a classified recreation reserve. However, the Council would have to consent to this course pursuant to s 27(1) Reserves Act.

[32] On 20 November 2000 the Council advised the Minister that it declined her request but confirmed that it would issue a further lease to the sports club. However, that arrangement has not apparently been completed. Mr Murray concluded his affidavit in these terms:-

“In summary, the classifications of the reserve in 1998 and 1999 had the effect of confirming the interim purpose of ‘recreation’ as the primary purpose of the reserve under the Reserves Act 1977. A consequence of the classification was that the reserve automatically vested in the Auckland City Council in accordance with the statutory provisions of s 26A of the Reserves Act and the Council ceased to hold the reserve under an appointment to control and manage. Through the vesting the Council became the lessor under any existing or future lease over the reserve, instead of the Minister of Conservation. The Council now has a responsibility to promote a management plan for the reserve under s 41 of the Reserves Act. The Crown retains the reversionary interest in the reserve under s 25 of the Reserves Act.”

Statutory framework

[33] I have already referred to some of the relevant statutory provisions. In summary:-

(a) The general purpose of the Reserves Act 1977 is to provide areas of New Zealand possessing various attributes “for the preservation and management for the benefit and enjoyment of the public” (s 3). Those categories of reserves are specifically defined as recreation, scenic, nature, scientific, and local purpose [my emphasis] (ss 17-23);

(b) To ensure that the reserves are controlled, managed, developed, used, maintained and preserved for their appropriate purposes the Minister “. . . shall, by notice in the Gazette, classify according to their principal or primary purpose . . .” all reserves existing on 23 December 1977 [my emphasis] (s 16(1)(a)).

(c) Where a reserve is controlled or managed by an administering body such as the Council, the Minister is prohibited from classifying the reserve “. . . without consulting the administering body” (s 16). It is unnecessary for the Minister to give public notice before classifying a reserve where “. . . the classification proposed . . . is substantially the same as the [existing] purpose . . .” (s 16(5)(a));

(d) The Minister is bound “. . . to give effect to the principles of the Treaty of Waitangi” when interpreting and administering the Reserves Act, including making classification decisions (ss 4 & 6 Conservation Act 1987);

(e) The Minister has a discretion to change a classification or reservation of land as a reserve “. . . for any reason” (s 24(l)(a)). Alternatively the local authority is entitled to notify the Commissioner that it considers “for any reason” the classification should be changed or that the reservation should be revoked subject to the Minister’s discretion (s 24(l)(b)). However, before changing a classification or purpose or revoking a reservation the Commissioner must notify the administering body in writing of the Minister’s reasons, the administering body must publicly notify the proposed change, and every person claiming to be effected has a right of objection (s 24(2)). Once a reservation is revoked or the classification or purpose is changed, the land vests in the Crown for disposal under the Land Act 1948 (s 25(l));

(f) Where the administering body is a territorial authority (such as the Council) that has before 1 January 1980 been appointed to control and manage the reserve as a recreation or local purpose reserve, the reserve shall “. . . vest in that administering body” (s 26A(1)). The authority is bound to hold the land in trust for its statutory purposes.

Plaintiff’s case

[34] I have not found identification of the essence of Ms Te Waero’s case an easy task. The issues, while arguably complex, are narrow and capable of definition. The real or ultimate issue is the legality of the Minister’s two decisions classifying the three pieces of land as recreation reserves.

[35] However, Ms Te Waero’s case was not presented with the requisite degree of definition. I have already referred to her 158 page affidavit plus three volumes of exhibits. Her statement of claim was diffuse. Mr Hirschfeld’s written opening submissions occupied 106 pages but failed to address adequately the essential issues. He made some amends in reply. He also submitted two volumes containing 26 authorities, few of which were relevant. I do not mean Mr Hirschfeld any disrespect in observing that all this tended to obscure rather than enlighten me about the merits of Ms Te Waero’s case.

[36] I was also left with the distinct impression that Ms Te Waero’s claim is a Trojan horse for the sports club’s challenge to adverse decisions by the Council about its ongoing rights to use the land; I apprehend that protection of the club’s interests is the real agenda behind this application. This factor has compounded and confused much of Ms Te Waero’s case. It is also directly relevant to Ms Te Waero’s entitlement to relief.

[37] Originally Ms Te Waero sought the remedies of both a declaration that the classification was either illegal, unreasonable or procedurally unfair, together with an order that the Minister revoke the reservations pursuant to s 24. In opening, Mr Hirschfeld acknowledged that the Court has no jurisdiction to order the Minister to act in these terms. At the same time he restricted Ms Te Waero’s cause of action to illegality as pleaded in her statement of claim; he accepted that the alternative causes of action alleging unreasonableness and procedural unfairness were either inappropriate or unarguable.

[38] Additionally, Ms Te Waero’s statement of claim proceeded on the premise that the land was or would have been available for use in settling Ngati Paoa’s Treaty claims against the Crown but for the Minister’s decisions to classify it as recreation reserves. She pleaded that because the reserves are now under the Council’s control and administration the tribe’s remedial claim has been eliminated or frustrated.

[39] Ms Te Waero’s plea that the Minister’s decisions deprived Ngati Paoa of the potential fruits of its underlying Treaty claim reflects her misunderstanding of my jurisdiction to review the Minister’s decisions. In oral argument Mr Hirschfeld accepted that s 16(1)(a) Reserves Act imposed a mandatory obligation on the Minister to classify the three lots as reserves. Moreover, Mr Hirschfeld accepted that she was bound specifically to classify the reserves “according to their principal or primary purpose”; her discretion was limited to selecting the appropriate classification among the categories of reserves as required by ss 17 to 23.

[40] Accordingly, Mr Hirschfeld accepted that the Minister had no statutory right to decline or refuse classification, for example, for the purpose of retaining the land for use in settlement of Ngati Paoa’s Treaty claims. He then confined his submissions to the core issue; namely, whether the Minister acted in accordance with her legal obligations pursuant to s 4 Conservation Act 1987.

[41] In his written opening, Mr Hirschfeld alleged the existence of a conspiracy between officials of both the Department and the Council. He described it as a tacit agreement between the two groups to defeat what would have been Ngati Paoa’s legitimate expectations of consultation. He submitted that it was designed to ensure that the land once re-classified was beyond the reach of Ngati Paoa from any future Treaty settlement process.

[42] At my invitation Mr Hirschfeld withdrew this extreme and unsubstantiated allegation. Ms Te Waero’s statement of claim did not allege bad faith; nor did she lead any evidence to this effect.

[43] In a more focused closing, Mr Hirschfeld’s primary submission was that the Minister’s duty to consult is of itself a discrete Treaty principle. He did not identify any other Treaty principle which may be relevant to the Minister’s classification decisions. He relied upon this passage from the judgment of Cooke P in Ngai Tahu Maori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 at 560:-

“Although a commercial whale-watching business is not taonga or the enjoyment of a fishery within the contemplation of the treaty, certainly it is so linked to taonga and fisheries that a reasonable treaty partner would recognise that treaty principles are relevant. Such issues are not to be approached narrowly. The Crown is right to accept in this case that treaty principles apply, at least if not inconsistent with the particular legislation. On the other hand, the Crown is not right in trying to limit those principles to consultation. Since the lands case, New Zealand Maori Council v Attorney-General (see especially pp 664, 674, 682, 693, 703, 717), it has been established that the principles require active protection of Maori interests. To restrict this to consultation would be hollow.”

[44] He relied also upon the Waitangi Tribunal’s identification of four distinct Treaty principles in the Whanganui River Report 1999, para 9.1.3. The Tribunal articulated the principles in these terms:-

“The first is that the Maori gift of governance to the Crown was in exchange for the Crown’s protection of Maori rangatiratanga. Thus governance is a qualified sovereignty . . .

The second is that active protection is required . . . The degree of protection may vary according to the nature and value of the thing involved . . .

The third is that the Crown cannot avoid its duty of active protection by delegating responsibilities to others . . .

The fourth, known as the partnership principle, requires that the Crown and Maori act towards each other reasonably and with the utmost good faith.”

[45] Also, and more to the point, Mr Hirschfeld relied on the Tribunal’s decision in the Turangi Township Report 1995. At para 15.2.1 the Tribunal observed:-

“Inherent in or integral to this basic principle [the first principle referred to above] is:

• The Crown obligation actively to protect Maori Treaty rights;

• The duty to consult; and

• Redress for past breaches.”

[46] Mr Hirschfeld also referred to this passage from the Tribunal’s Whanganui River Report at p 162:-

“Clearly the requirements of the . . . Conservation Act 1987, as regards Maori issues, cannot be met without consultation with the tangata whenua.”

[My emphasis]

He submitted that without consultation, relying again on the Whanganui River Report at p 163, the Minister could not put herself:-

“. . . in a position to make an informed decision, that is a decision which is sufficiently informed as to the relevant facts and law to be able to say that it has had proper regard to the impact of the principles of the Treaty.”

Defendants’ cases

[47] The Minister’s defence was in summary as follows:-

(a) The Minister was bound to classify the land because it was an existing reserve. She would have been in default of her legal obligations if she had failed to do so once requested by the Council. Her only options were to choose among the designated categories of recreation, historic, scenic, nature, scientific, government purpose or local purpose;

(b) The most appropriate classification for all three pieces of land was as recreation reserves. However, there was a possibility that Lot 278 and Allotment 128 could have been classified as local purpose reserve. The recreation classification reflected most directly the principal or primary purpose of the land both present and intended. The plaintiff did not contest the Minister’s classification;

(c) Section 4 Conservation Act applied to the extent that there was capacity in the Reserves Act for the provision to have effect. However, in this case no Treaty interests could realistically influence the Minister’s assessment of the primary purpose of the reserves;

(d) The Minister did not fail to meet the requirements of either s 4 or the Reserves Act. While it would have been desirable to have discussed the intended classification with Ngati Paoa, this was simply a matter of proper Treaty relations as distinct from a failure to satisfy legal requirements.

[48] The Minister identified the plaintiff’s real concern as being that the land vested in the Council under certain terms of trust as a consequence of its classification as recreation reserve. However, it was not open to the Minister to avoid this automatic vesting by manipulating the classification process or declining to classify.

[49] In able oral argument Ms Virginia Hardy submitted that the Minister was not under a general or omnibus duty to consult with local iwi and that consultation was not of itself a Treaty principle. She submitted that consultation is rather a mechanism for discharging the Crown’s obligation of good faith; or informing the Crown of a specific Treaty interest which may be affected by a particular decision. In support she relied on the observations of Cooke P and Richardson J in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at pp 665 and 683 respectively.

[50] In this case, Ms Hardy submitted, consultation with local iwi would not have informed the Crown of any particular Treaty interest that may be affected by its classification decision. Otherwise, she emphasised, there was no wider duty on the Minister to consult an identifiable community of Maori in the form of a local tribe when making her classifications.

[51] The Council supported the Crown. In particular it emphasised through its counsel, Mr David Kirkpatrick, that Ngati Paoa had no Treaty based interest in the classification decisions which required consultation. Consultation would have been vain in the sense that it could not have made any difference; the decisions in question did not affect interests or rights protected by the Treaty. The Minister was only obliged to consult with the Council as the administering body.

[52] In a succinct and lucid oral address, Mr Kirkpatrick submitted that the Treaty principles, as envisaged by s 4 Conservation Act, mean nothing in the statutory context unless they refer to a particular Treaty interest. He emphasised that statutes do not operate in a vacuum and submitted that consultation is nothing more than “an effective mechanism for informing each party of the other’s interests”. Consultation, in his submission, is not of itself a Treaty principle. He asked rhetorically: what does the Treaty have to do with land that has been in public reserve for 80 years? He emphasised that the Act sets out its own comprehensive regime for preserving land for the general public, i.e. for all sections of the population, away from private sale and sectional interests. In essence there was no Treaty information which the Minister needed in order to make an informed decision on classification of the land.

Decision

[53] As noted, the evidence and argument presented by Ms Te Waero in this case extended across an unnecessarily broad spectrum. However, by the closing of her case Mr Hirschfeld had accepted that the issues were relatively narrow, and he helpfully addressed his submissions in reply accordingly. In an attempt to chart a path towards resolution I have identified the issues in these terms:-

(a) What were “the principles of the Treaty of Waitangi” within the meaning of s 4 Conservation Act to which the Minister was obliged to give effect when discharging her functions of classifying the land under the Reserves Act?

(b) If there were any such principles, did the Minister discharge her duty by giving effect to them when classifying the land?

(c) If not, what is the effect of her failure?

(d) If issues (b) and (c) are answered in the negative, what relief, if any, is appropriate?

(a) Treaty principles

[54] In my view there were no Treaty principles to which the Minister was bound to give effect when deciding upon classification of this land; I agree with the defendants that the concept of consultation as such is not a separate or discrete Treaty principle.

[55] The Conservation Act does not define what constitutes “the principles of the Treaty of Waitangi” or provide any guidelines for that purpose. However, the Court of Appeal considered the question in detail in the New Zealand Maori Council case (supra). Cooke P at pp661-662 did not attempt to identify the principles. Instead he described what they were. He treated the principles as synonymous with the express provisions found in the three distinct articles that constitute the Treaty. He expressed similar views in Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129 at 135. Whatever translation of the Treaty is adopted, none of the articles identifies consultation.

[56] Somers J at p693 was of a similar view to Cooke P that a breach of the provisions of the Treaty equated to a breach of its principles. At pp702-703 Casey J imposed a gloss on this approach by observing:-

“I think the deliberate choice of the expression ‘inconsistent with the principles of the Treaty’ in preference to one such as ‘inconsistent with its terms or provisions’ points to an adoption in the legislation of the Treaty’s actual terms understood in the light of the fundamental concepts underlying them. It calls for an assessment of the relationship the parties hoped to create by and reflect in that document, and an inquiry into the benefits and obligations involved in applying its language in today’s changed conditions and expectations in the light of that relationship.”

[57] In that case the New Zealand Maori Council submitted that the Treaty embodied eight distinct principles (see Somers J at p692) including a duty to consult in relation to acts which might affect taonga. Cooke P rejected its submissions in these terms at p665:-

“A duty ‘to consult’ was also propounded. In any detailed or unqualified sense this is elusive and unworkable. Exactly who should be consulted before any particular legislative or administrative step which might affect some Maoris, it would be difficult or impossible to lay down. Moreover, wide-ranging consultations could hold up the processes of Government in a way contrary to the principles of the Treaty . . .”

[58] Richardson J at pp682-683 provided a more comprehensive explanation for rejecting the New Zealand Maori Council’s submission as follows:-

“Consultation

What is involved in the application of that fundamental good faith principle of the Treaty must depend upon the circumstances of the case. Mr Baragwanath submitted that an obligation to consult the other Treaty partner and the correlative right to be consulted was itself an implied principle of the Treaty stemming from the obligation of good faith and on the Crown’s part from the protective guarantees of Maori interests which come under the Treaty. There are difficulties with that submission when expressed in that way as an absolute duty of universal application superimposed on the consultation which takes place as part of the ordinary political and governmental processes. What matters affecting Maori are within the scope of the duty and how is the line to be drawn in the conduct of government? With whom is the consultation to occur? . . . There is, too, the further question as to the form and content of the consultation. In truth the notion of an absolute open-ended and formless duty to consult is incapable of practical fulfilment and cannot be regarded as implicit in the Treaty. I think the better view is that the responsibility of one Treaty partner to act in good faith fairly and reasonably towards the other puts the onus on a partner, here the Crown, when acting within its sphere to make an informed decision, that is a decision where it is sufficiently informed as to the relevant facts and law to be able to say it has had proper regard to the impact of the principles of the Treaty. In that situation it will have discharged the obligation to act reasonably and in good faith. In many cases where it seems there may be Treaty implications that responsibility to make informed decisions will require some consultation. In some extensive consultation and co-operation will be necessary. In others where there are Treaty implications the partner may have sufficient information in its possession for it to act consistently with the principles of the Treaty without any specific consultation.

[My emphasis]

[59] I respectfully adopt and apply this formulation. The Court of Appeal has refused to recognise consultation as a discrete principle of the Treaty. To the extent, if any, that this conclusion differs from the statement found in para 15.2.1 of the Waitangi Tribunal’s Turangi Township Report on which Mr Hirschfeld relies, I am bound by the Court of Appeal’s decision. The Tribunal’s opinions expressed in its reports under the Treaty of Waitangi Act 1975 are entitled to considerable weight. But they are not binding on Courts and proceedings concerned with other Acts (Cooke P at pp661-662).

[60] Mr Hirschfeld, as noted, placed considerable reliance on a passage from Cooke P’s later judgment in the Ngai Tahu Maori Trust Board case (supra) at p560. However, as I read that passage, the Judge was expressing his brief disagreement with the Crown’s proposition that compliance in that case with its obligations under s 4 Conservation Act was limited to consultation alone when issuing a permit for whale watching at Kaikoura in circumstances where the Court recognised that Ngai Tahu had developed a special interest in the use of the coastal waters. Cooke P was commenting on the particular argument advanced by the Crown apparently on the wrong premise that consultation was a Treaty principle. He was not propounding an argument for modifying or departing from the reasoned judgments on this issue delivered in the New Zealand Maori Council case. Moreover, at p562 Cooke P, after confirming the authoritative effect of the New Zealand Maori Council case, observed that the “precedent value of this case for other cases of similar facts is likely to be very limited.”

[61] In my opinion, consultation describes a process whereby parties confer for the purpose of considering or reaching a decision. It is the means or mechanism for informing one party about the interests or concerns of the other relevant to the subject matter of the consultation. I agree with the defendants that consultation is not of itself a discrete, substantive Treaty principle. It does not exist in a vacuum without an underlying purpose. In this statutory context consultation is the medium for Maori to advise the Minister of a distinct Treaty interest - one embodied or implicit in the Treaty itself as distinct from a matter of general interest to Maori living on Waiheke Island - which is or may be directly relevant to her decisions on classification.

[62] As noted, Mr Hirschfeld was unable to identify any particular Treaty interest which required the Minister’s consideration when classifying the land. He referred generically to “historical and contemporary interests”. In the former category he identified archaeological issues of the type discussed in an assessment prepared for the Council. In the latter he identified members of Ngati Paoa who used the land, particularly those who belonged to the sports club.

[63] I do not accept that the so-called contemporary interests are Treaty interests that may be affected by the classification decision. They are interests held by the public in general, including other members of the sports club. The historical interest may have had some relevance but for Mr Hirschfeld’s concession that Ms Te Waero would not have urged the Minister to classify the land as historic reserve even if she reconsidered her decisions. I shall discuss this concession in more detail later in the judgment. In any event, assuming that protection of any sites identified by the archaeological advisor within the existing recreation reserves would have constituted a valid Treaty interest requiring the Minister’s consideration, she could have directed the Department to manage and protect those sites “to the extent compatible with the principal or primary purpose of the reserve” in accordance with s 17(2)(b). Furthermore, Mr Hirschfeld did not argue that the existence of any sites of archaeological importance to Ngati Paoa may have caused the Minister to decide against vesting the land for reserve purposes.

[64] Ms Te Waero’s statement of claim emphasised the hindsight or retrospective concessions made by Mr Murray in his affidavit to the effect that, on reflection, he should have consulted with the local iwi before exercising his delegated powers to classify the land. I accept Ms Hardy’s submission that this evidence is not directly relevant to the threshold legal issue. It is more in the nature of an acceptance of what may have been best practice. It does not constitute an acknowledgement or concession by the Minister that she was subject to a legal duty to consult when classifying the land.

[65] Accordingly, I am satisfied that the duty to consult or, to put it into more appropriate context, Ms Te Waero’s claimed right of consultation, was not a discrete or distinct “. . . principle of the Treaty of Waitangi” to which the Minister was bound to give effect when exercising her classification decisions for all pieces of land.

(b) Discharging statutory duty

[66] Strictly speaking, this second issue is now academic. However, I should record that on the evidence I am satisfied that the Minister did not properly consider her obligations under s 4 Conservation Act when deciding on classification. She has not adduced any affirmative evidence to this effect. The Department’s checklist used by Mr Bayley in his submission to Mr Murray was, in my opinion, misleading. It simply referred to an inquiry whether sufficient efforts had been made to accommodate the views held by groups such as local iwi who had been consulted “by the local authority”, and directed Mr Bayley to answer “not applicable” if the answer was in the negative. The answer was meaningless in this context.

[67] The Department should have had a mechanism in place for specifically identifying any Treaty interests which may be relevant and thus should be taken into account by the Minister when considering classification. I have seen no evidence of their existence.

[68] The Department and the Council placed some reliance on paragraph 8 of Mr Murray’s affidavit, as follows:-

“I did not believe that consultation with iwi was necessary when considering the Auckland City Council’s application and the submission. I was aware of the s 16(5) Reserves Act exemption from advertising and as I recall considered I had a discretion in respect of consultation with iwi. Given the long history of the reserve being used for recreation purposes and the proposed future use of the reserve I considered there was no practical alternative classification to ‘recreation’.”

[69] This statement is equivocal and ambiguous. On one interpretation Mr Murray’s conclusion about consultation with iwi was based upon s 16(5); if so, he was wrong. More importantly, however, the Department did not have a discretion about consulting iwi. It had an obligation to consult if Treaty principles arose for consideration. Mr Murray did not refer to any consideration of the existence of those principles.

[70] However, I repeat that the Minister’s apparent failure to give specific consideration to the requirements of s 4 Conservation Act is not directly material given my conclusion that in this case there were no specific Treaty principles relevant to her classification decision.

(c) Effect of failure to discharge statutory duty

[71] In the event that I am wrong on the first issue, and the Minister was subject to a specific statutory duty to consult with Ngati Paoa, I am satisfied that the result would have been no different for two reasons.

[72] First, in reply Mr Hirschfeld expressly accepted that the Minister’s decisions would probably have been the same even if she had consulted with Ms Te Waero or other members of Ngati Paoa. This acknowledgement rather tended to undermine his independent argument that the tribe had “historical and contemporary” interests requiring consideration. He was never able to articulate the particular relevance of those interests to a classification decision.

[73] Instead Mr Hirschfeld contended that consultation “may have caused the Minister to hesitate” before making her decisions. When pressed on this proposition, he suggested that the Minister may, for example, await the outcome of the tribe’s claim before the Treaty. However, this would seem a pointless exercise given Mr Hirschfeld’s acknowledgement that the Minister was bound to classify the land for reserve purposes in any event; consequently, it would not have been available to satisfy the terms of any decision by the Tribunal. I also agree with Mr Kirkpatrick’s proposition that hesitation impedes the process of government and is itself contrary to the terms of the Treaty.

[74] Second, in reply, Mr Hirschfeld in reply made a telling and ultimately determinative concession. He did so on Ms Te Waero’s express instructions. He confirmed that if I found that the Minister’s classification decisions were erroneous in law and directed her to reconsider her decisions, on the basis that she should consult Ngati Paoa, Ms Te Waero and those whom she represents would seek retention of the existing classifications of recreation reserve. This concession was made following Mr Hirschfeld’s reliance upon an archaeological assessment prepared by Russell Foster & Associates for the Council in March 2000. The report identified sites of possible archaeological importance to Maori on Lot 277. He relied on the assessment to support a submission that the Minister should have consulted the tribe in performance of her statutory obligations before classification because Lot 277 was of historical and cultural importance.

[75] However, Mr Hirschfeld accepted that the logical consequence of the tribe’s reliance on Russell Foster’s assessment would be re-classification of Lot 277 as a historic reserve under s 18 Reserves Act. He also accepted that such a classification would preclude use of the site, which is currently playing fields, for recreation purposes by the sports club. At that point I invited Mr Hirschfeld to seek Ms Te Waero’s instructions. He then made the concession which I have just described.

[76] I drew Mr Hirschfeld’s attention to the effect of his concession. He responded that his client was not in a position to speak for the tribe; and that while Ms Te Waero may argue for retention of the land as recreation reserves others in the tribe may advocate re-classification of Lot 277 as a historic reserve. This response was unsatisfactory; Ms Te Waero has brought this claim in an apparently representative capacity, for and on behalf of tribal interests. She cannot disclaim those interests so freely.

[77] Apart from confirming my impression that Ms Te Waero has filed this proceeding for the predominant purpose of protecting the interests of the sports club, Mr Hirschfeld’s concession suggests that it would have been futile for me to quash the Minister’s decisions and order her to reconsider if when consulted within that process Ms Te Waero, the plaintiff in this proceeding, urged the Minister to reach the same result. Consultation would be a hollow exercise.

(d) Relief

[78] In reply Mr Hirschfeld obtained leave to amend the prayer for relief in Ms Te Waero’s statement of claim. In substitution he sought a declaration in these terms:-

(a) That the first defendant be directed to reconsider her decision to classify the said land; and thereby

(b) That she be directed to consult with iwi pursuant to s 4 Conservation Act 1987 concerning the land; and thereby

(c) That she be directed to consider revocation of the current status of the land pursuant to the Reserves Act if she considers that appropriate.

[79] Mr Kirkpatrick conceded that I have jurisdiction to grant relief in terms of paragraphs (a) and (b) but that I had no jurisdiction for (c). I agree. My powers under the Judicature Amendment Act are limited to a declaration about legality and consequential orders directing the Minister to reconsider. They are aimed at the process; I cannot direct the Minister on the result.

[80] In any event, even if I was wrong on the issues set out above, I would still have exercised my statutory discretion against the plaintiff. I have already discussed the futility of relief where Ms Te Waero acknowledges through her counsel that she would support the Minister’s original classifications even if I directed her to consult. As noted, that is determinative.

[81] Moreover, as also noted, the evidence has left me with the uneasy but distinct impression that the real or underlying purpose of this application is not to advance and promote Treaty rights of Ngati Paoa but to support the interests of the sports club in its dispute with the Council. I sense that is the plaintiff’s real agenda. That factor would weigh heavily with me against exercising my discretion in Ms Te Waero’s favour. As I explained in Court, my jurisdiction on reviewing administrative decisions is strictly circumscribed, and the procedure is not available as a means of resolving other disputes. I record my expectation, though, that the sports club and the Council will be able to resolve their differences amicably in the near future.

[82] In the result, therefore, Ms Te Waero’s application for relief is dismissed. I will receive memoranda from counsel on costs if they are unable to agree between themselves. It may assist that process if I record that on a preliminary basis I would award costs against the plaintiff in favour of both defendants, and for two counsel, according to scale 2B.