Reihana v Director General of Conservation HC Invercargill CIV-2005-425-75

[2007] NZHC 1670

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2005-425-75

BETWEEN  TONI COLIN REIHANA Plaintiff

ANDTHE DIRECTOR GENERAL OF CONSERVATION

Defendant

Hearing:         26 February 2007

Appearances: Mr T.C. Reihana in Person

Ms B. Arthur for Crown

Judgment:      26 February 2007

JUDGMENT OF HON. JUSTICE JOHN HANSEN

[1]      There was before the Court for hearing today an  application for judicial review by the plaintiff seeking to review the process by which the Director General arrived at a set of regulations.   This is a matter that was initially struck out by Doogue J.  There was then an appeal, which was allowed by the Court of Appeal, that led to a further amended statement of claim being filed.

[2]      In  the  course  of  the  proceedings  Mr  Reihana  filed,  as  well  as  his  own affidavit, an affidavit by Mr Coote.  Mr Coote has been of considerable assistance to the Court today in articulating the underlying problem faced by the owners, and their concerns with the present form of the regulations.  In particular, that the committee responsible for the administration of the islands belonging to the owners can be elected by persons who are not themselves owners, or, indeed, even beneficiaries

through the owners.   That that is the underlying complaint is difficult to ascertain

TONI COLIN REIHANA V THE DIRECTOR GENERAL OF CONSERVATION HC INV CIV-2005-425-75

26 February 2007

from the pleadings before the Court, but with the assistance of both Mr Reihana and

Mr Coote we have arrived at that position.

[3]      Ms Arthur for the Crown has responsibly stated that now we have reached this stage she understands the concerns of the owners and particularly the regulation that permits non-owners to vote for the committee responsible for the day to day running of the islands.  There is a secondary issue surrounding that extending to the rights of beneficiaries which perhaps raises more problematic issues.  However, as a consequence of what I trust have been fruitful discussions this morning, Ms Arthur is to take these concerns to the director with a view to a consultation process being undertaken with the owners to see if the concerns that we now understand can be properly addressed.  In the meantime, because Ms Arthur is understandably not in a position to consent to such an order, I order that the regulations be not promulgated pending further order of this Court.

[4]      This matter has some history to it, and while  I understand  the  need  for consultation, and the fact that that consultation will necessarily take some time, I would hope some reasonably speedy progress could be made to at least put in place a process that addresses those two pronged concerns which I repeat:

•   Non-owners having voting rights.

•   What voting rights there should be for beneficiaries who claim through owners. [5]      It seems to me that these proceedings should remain afoot so that I adjourn

this matter for a telephone conference in 3 months to see what progress has been made.  At the moment these are not formally representative proceedings.  But it is apparent that the concerns expressed by Mr Reihana, as we now understand them, are the concerns of, at the least, the majority of owners.

[6]      If there is no resolution by discussion with the Director, and the proceedings require a formal hearing, the other owners will need to give thought as to whether they formally wished to be joined in these proceedings, or commence their own

proceedings. To that end, I think it would be useful, if Mr Coote is agreeable, that he should also take part in the telephone conference in 3 months time.

[7]      Costs will be reserved at this stage.  If necessary, they can also be addressed at the telephone conference in 3 months time.

Solicitors
T. Reihana in Person

Crown Law, Wellington for Defendant c.c.

Mr B. Coote