Royal Forest and Bird Protection Society of New Zealand Incorporated v New Zealand Conversation Authority
[2021] NZHC 1194
•27 May 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-360
[2021] NZHC 1194
BETWEEN ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED
First ApplicantAND
THE FEDERATED MOUNTAIN CLUBS OF NEW ZEALAND INCORPORATED
Second Applicant
AND
NEW ZEALAND CONSERVATION AUTHORITY
First Respondent
AND
DIRECTOR-GENERAL OF CONSERVATION
Second Respondent
AND
STEPHEN JAMES BUSHBY
Interested Party
Hearing: 15 March 2021. Further submissions: 28 April 2021 Appearances:
M C Smith and H E Savage for Applicants
M A Baker-Galloway and M J Hammer for First Respondent P H Higbee and K F Gaskell for Second Respondent
S J Bushby in Person as Interested Party
Judgment:
27 May 2021
JUDGMENT OF GRICE J
ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v NEW ZEALAND CONSERVATION AUTHORITY [2021] NZHC 1194 [27 May 2021]
TABLE OF CONTENTS
Para Nos.
The Legal Issues [13]
Statutory Framework [15]
Conservation Act 1987 [15]
National Parks Act 1980 [19]
Hierarchy of plans [24]
The General Policy for National Parks 2005 [27] The West Coast Te Tai Poutini Conservation Management Strategy 2010–2020 [28] Paparoa National Park Management Plan [31]
Concessions [32]
Derogation [39]
Submissions of the Applicants [54]
Analysis [61]
Conservation Authority’s Position [71]
Mr Bushby’s Submissions [76]
Conclusion on Derogation [88]
Exercise of discretion [94]
Amendments to plan [111]
Declaration [113]
Joint public statement [123]
Submissions following hearing [131]
Costs [134]
[1] Paparoa National Park lies in the northern west coast region of the South Island between Kawatiri (Buller River) and Māwheranui (Grey River). It covers the western side of the Paparoa Range and encompasses the catchments of Punakaiki, Pororari and Potikohua (Fox rivers) and Punungairo (Bullock Creek) as well as Te Ananui (the metro cave system) and the southern side of the Tiropahi River catchment. Limestone lies under most of the national park and forms towering coastal cliffs, deep canyon rivers, caves and stacked coastal rocks. The Pancake Rocks at Dolomite Point, near
Punakaiki are the best known feature. The National Park Management Plan describes the park as follows:1
Flowing from the mountains to sea – ki uta ki tai – Paparoa National Park is a showpiece for nature’s intriguing diversity. From the ancient weathered peaks of the Paparoa range to the finely sculptured rocks of the coastline, it is a powerful landscape, which demands respect and preservation. The key processes that are shaped, and continue to shape, the modern Paparoa landscape are the climate and geology.
[2] Ngāi Tahu and Ngāti Waewae have a special relationship with the land, water and resources of the park.
[3] The park’s area is now 42,971 hectares. The most recent acquisition was 3,971 hectares added in 2015. That resulted from the Pike River Mine tragedy.2 At the wishes of the families who lost men in the explosion on the Pike River Mine, the Pike River Mine site and surrounding area became a part of Paparoa National Park to protect the area into the future.3
[4] As a result of the Pike River Mine tragedy, approximately 65 kilometres of new tracks, made up of the Pike 29 Memorial Track and the Paparoa Track, are to be constructed through the Tī Kōuka and Nīkau Places.4 The Paparoa Track is one of the ten Great Walks in New Zealand. It was also intended that a development of the track and surrounding developments would encourage the public to use the national park and bring much needed tourism money to the West Coast.
1 The description above is taken from Te mahere whakahaere o Te Pāka ā-iwi o Paparoa | Paparoa National Park Management Plan 2017 (Te Papa Atawhai | Department of Conservation, March 2017) [“National Park Management Plan”] at 22; approved on 3 March 2017 under s 48 of the National Parks Act. It applies only to the Paparoa National Park.
2 An explosion ripped through the Pike River Mine on 19 November 2010 resulting in the tragic loss of 29 men. Their bodies have not been recovered and remain sealed in the mine.
3 An earlier tragedy (the Cave Rock tragedy) occurred on 28 April 1995 in the Paparoa area. Thirteen students form the outdoor recreation course at Tai Poutini Polytech in Greymouth and the Department of Conservation’s Punakaiki Field Centre Manager were killed and four others seriously injured when the Department’s viewing platform high above Cave Creek collapsed.
4 These are localities within the Paparoa National Park. The proposal for these tracks came through Pike River family representation and determination that something good come out of that terrible tragedy.
[5] The national park is managed by the Department of Conservation under the National Parks Act 1980,5 the Conservation Act 1987 and a hierarchy of planning documents. The relevant documents in these proceedings are primarily the West Coast Te Tai o Poutini Conservation Management Strategy 2010–2020 (CMS) and the Paparoa National Park Management Plan 2017 (Management Plan).6
[6] The applicants, the Royal Forest and Bird Protection Society of New Zealand and the Federated Mountain Clubs of New Zealand Incorporated, seek to set aside parts of the Management Plan that allow for recreational aircraft landings in the Paparoa National Park. The applicants say that those provisions derogate from the CMS. They seek an accompanying declaration to that effect.
[7] Te Pou Atawhai Taiao O Aotearoa | the New Zealand Conservation Authority (Conservation Authority), which approved the Management Plan under s 48 of the National Parks Act, has filed a notice of appearance. It does not acknowledge any derogation but nevertheless does not oppose the applicant’s claim. It was heard on the application.
[8] The Director-General of Conservation (DOC) acknowledges the Management Plan derogates from the CMS by purporting to allow for recreational landings. It however did not agree with some of the relief sought.
[9] Mr Stephen Bushby was added as an interested party to this proceeding in November 2020. He has lodged a concession application to hold a competitive sporting event in Paparoa National Park.7 Mr Bushby’s application for the concession is yet to be decided by the Department of Conservation. In his application he seeks permission for aircraft landings, primarily for the transportation of safety personnel
5 Section 4(1) of the National Parks Act 1980 provides that the parks are to be maintained in a natural state, to preserve national parks in perpetuity “for their intrinsic worth and for the benefit, use, and enjoyment of the public”.
6 Approved on 3 March 2017 under s 48 of the National Parks Act. It applies only to the Paparoa National Park.
7 Mr Bushby’s addition as an interested party to the proceedings was not opposed.
and equipment to be available in the case of injuries or illness by competitors in the competitive sporting events. These events are physically demanding and could often, Mr Bushby claimed, result in dehydrated and cold competitors who might need medical attention. Extreme conditions are encountered in the event.
[10] Mr Bushby, however, has made it clear that in these proceedings, he does not wish to focus on his concession application, although he made submissions relevant to it. He raises wider concerns over the effect of the CMS and the position of the Pike River families, as well as issues relating to human rights for persons with disabilities who are unable to enjoy the national park because they cannot access it. He also raises issues relating to the Treaty of Waitangi.
[11] Mr Bushby filed extensive memoranda and submissions in support of a wide range of issues and concerns about the CMS. He produced video clips relating to the Pike River tragedy and the wishes of the families involved to ensure that there was a living memorial of the 29 men who died in the tragedy. The memorial included tracks in the national park that could be fully enjoyed by the public. Mr Bushby also provided a video indicating that there is already extensive use of helicopters in the national park to prove it was not a quiet place to start with. Therefore he said banning recreational landings would not stop the noise output, given the park is not quiet (at least not all of it) and never has been.
[12] DOC, and the applicant, take the view that the scope of this judicial review application is much narrower than the ambit of the concerns raised by Mr Bushby.
The Legal Issues
[13]The following issues arise:
(1)whether the relevant parts of the Management Plan derogate from the CMS;
(2)should relief be granted or should the Court exercise its discretion not to grant relief in whole or in part;
(3)if relief is to be granted, what should the form of that relief be; and
(4)the effect of Mr Bushby’s wider concerns in particular as they relate to the CMS.
[14] In order to ascertain whether the National Park Management Plan derogates from the CMS and whether that conflict amounts to a derogation, a consideration of the statutory and planning framework is required.
Statutory Framework
Conservation Act 1987
[15] The Conservation Act requires DOC to administer and manage all conservation areas, including national parks, in accordance with statements of general policy which are approved under ss 17B and 17C of the Act, conservation management strategies and conservation management plans.8
[16] The Act provides that the purpose of a conservation management strategy is to “implement general policies and establish objectives for the integrated management of natural and historical resources … managed by the Department under the … National Parks Act 1980 and for recreation, tourism, and other conservation purposes”.9
[17]Importantly for these proceedings, s 17D(4) provides:
(4)Nothing in any conservation management Strategy shall –
(a)derogate from any provision in this Act or any other Act; or
8 Conservation Act 1987, s 17A.
9 Section 17D(1). Other acts were also mentioned: Wildlife Act 1953, the Marine Reserves Act 1971, the Reserves Act 1977, the Wild Animal Control Act 1977, the Marine Mammals Protection Act 1978 and the Hauraki Gulf Marine Park Act 2000.
(b)derogate from any general policy approved under any of the Acts … (including the National Parks Act) …; or
(c)affect any agreement or arrangement …
[18] Conservation management plans are provided for under the Act. These are to “implement conservation management strategies and establish detailed objectives for the integrated management of natural and historic resources within any area … and for recreation, tourism, and other conservation purposes”.10 The procedures for the preparation and approval of conservation management strategies and for reviews of conservation management strategies and conservation management plans are also set out in the Act.11
National Parks Act 1980
[19] The National Parks Act provides that national parks are to be administered by DOC.12 It sets out the principles to be applied when administering and managing national parks.13 Parks are to be preserved as far as possible in their natural state14 and the public should have freedom of entry and access.15
[20] Part 5 of the Act provides for the control and management of national parks. Section 43 refers to the documents to have regard to in administering the parks as follows:
43 Parks to be administered by Department
The Department shall, subject to this Act, and in accordance with—
(a)any statements of general policy adopted under section 44; and
10 Conservation Act 1987, s 17E(1).
11 Sections 17F–17H.
12 National Parks Act 1980, s 43.
13 Sections 4–6.
14 Section 4(2)(a).
15 Section 4(2)(e): subject to the imposition of such conditions and restrictions as necessary for the preservation of native plants and animals or for the welfare in general of the parks.
(aa)any conservation management strategy for the time being in force in respect of a park; and
(b)any management plan for the time being in force in respect of a park—
administer and manage all national parks in such a manner as to secure to the public the fullest proper use and enjoyment of the parks consistent with the preservation of their natural and historic features and the protection and well-being of their native plants and animals.
[21] Section 44 provides for the adoption and amendment of general policy statements for national parks. A management plan cannot derogate from the conservation management strategy. Section 44A says:
44A Conservation management strategies
(1)Every conservation management strategy shall establish objectives for the management of national parks and any areas within any such parks, in the area to which it relates.
(2)Nothing in any management plan shall derogate from the provisions of any conservation management strategy.
[22] The Act goes on to allow for general policy statements for parks which the Conservation Authority may adopt and amend so they are adapted to changes in circumstances or in accordance with increased knowledge.16
[23] In general terms, DOC has the responsibility for preparing management plans in accordance with s 47 and the Conservation Authority has the statutory authority to approve management plans under s 48. It is a management plan that is the subject of these proceedings.
16 National Parks Act 1980, s 44(1).
Hierarchy of plans
[24] The Conservation Act and the National Parks Act establish a hierarchy of conservation planning documents. This was demonstrated in a diagram produced by Mr Ellison for the Conservation Authority as follows:
[25] For Paparoa National Park the hierarchy of policy and planning documents applies as follows:
(a)the General Policy for National Parks 2005 (this applies to all national parks);
(b)the West Coast Te Tai Poutini Conservation Management Strategy 2010–2020 (applies to the West Coast of the South Island); and
(c)the Paparoa National Park Management Plan 2017.
[26] The derogation occurs because the Park Management Plan at (c) is lower in the hierarchy than the CMS and yet it is said to be inconsistent with and so derogates from the CMS.
The General Policy for National Parks 2005
[27]This applies to all national parks. For present purposes, this provides that:17
Planning and management for recreation and other opportunities for the benefit, use and enjoyment of each national park should:
i)preserve national park values, including natural quiet, as far as possible;
…
The West Coast Te Tai Poutini Conservation Management Strategy 2010–202018
[28] There are five conservancy areas in the South Island: West Coast Tai Poutini conservancy, Aoraki/Canterbury conservancy, Nelson/Marlborough conservancy, Otago conservancy and Southland conservancy.
[29] The West Coast Te Tai Poutini Conservation Management Strategy applies to the West Coast of the South Island. It sets out DOC’s proposed intentions for the integrated management of natural and physical resources located within that conservancy.
[30] The CMS was prepared following consultation, public submissions and hearings. It was approved on 15 April 2010. It is divided into six parts.19
17 General Policy for National Parks (Revised (ed), Te Pou Atawhai Taiao O Aotearoa | the New Zealand Conservation Authority, 2019) [“General Policy for National Parks”] at [8.1](c)(i) (Policies).
18 West Coast Conservation Management Strategy Vol I (Te Papa Atawhai | Department of Conservation, April 2010) [“West Coast CMS”].
19 See below at [42]–[58].
Paparoa National Park Management Plan
[31] The Management Plan was developed in consultation with Te Rūnanga o Ngāi Tahu, Te Rūnanga o Ngāti Waewae, the West Coast Tai Poutini Conservation Board, the West Coast community including the Pike River families, and other interested parties. It replaced the previous Paparoa National Park Management Plan 1992 and became operative on 1 February 2017.
Concessions
[32] The National Parks Act allows the Minister of Conservation to grant a concession in respect of a national park in accordance with part B of the Conservation Act.20
[33] The Conservation Act sets out a detailed regime for the consideration, granting and reconsideration of concessions.21 No activity may be carried out in a conservation area unless authorised by a concession.22 No concessions are required in relation to:23
(a)any mining activity authorised under the Crown Minerals Act 1991 (including the transitional provisions of that Act); or
(b)any activity that is otherwise authorised by or under this Act specified in Schedule 1; or
(c)any action or event necessary for the purposes of saving or protecting life or health, or preventing serious damage to property or avoiding an actual or likely adverse effect on the environment; or
(d)any activity that is carried out by the Minister or Director-General in the exercise of his or her functions, duties, or powers under this Act or any other Act.
[34] The relationship between concessions, conservation management strategies and plans is described in the Conservation Act:24
Where a conservation management strategy or conservation management plan has been established for a conservation area and the strategy or plan provides for the issue of a concession, a concession shall not be granted in that case unless the concession and its granting is consistent with the strategy or plan.
20 National Parks Act 1980, s 49(1).
21 Conservation Act 1987, Part 3B (ss 17O–17ZJ).
22 Section 17O(2).
23 Section 17O(3).
24 Section 17W(1).
[35] The Minister may decline an application for a concession that is inconsistent with the Act, conservation management strategy, or conservation management plan.25
[36] Section 17W says that it is a condition of every concession document that the concession acts in accordance with every relevant conservation management strategy and conservation management plan in place. Legislative amendments approved after the date in which the concession became effective are deemed to be included in every concession document.
[37]Of relevance is the following provision:26
Any provision of a concession document that contravenes or allows expressly or by implication any action or default on the part of the concessionaire in contravention of the strategy or plan shall have no effect and any breach or contravention of the strategy or plan shall be deemed to be a breach or contravention of the concession and concession document.
[38] The Conservation Act requires that all aircraft hold a concession to land, take off or hover over conservation lands and waters, with some exceptions for emergencies.27 Landing includes hovering of any aircraft and setting down or taking on any goods or persons from the aircraft.28
Derogation
[39] The Management Plan is a lower order plan than the CMS planning instrument, and the statutory provision in s 44A specifically provides:
(2)nothing in any management plan shall derogate from the provisions of any conservation management strategy.
[40] Mr Savage, for the applicant, pointed out that the CMS, in its Foreword, specifically notes that there have been national park management plans prepared prior to the CMS and contemplates there may be differing approaches in the National Park Management Plan to those taken in the CMS. Where there was conflict between the
25 Section 17SB.
26 Conservation Act 1987, s 17W(8).
27 Section 17ZF.
28 Section 17ZF(5).
provisions of the National Park Management Plan and the CMS, the CMS outlined how the conflict would be managed.29
[41] The CMS is published in two volumes. Volume I contains background and context on conservation values and threats and describes the desired conservation outcomes, management objectives, policies, key performance indicators and milestones. Volume II provides information about particular pieces of land.
[42] Volume I is organised into five main parts: the introduction in part one, the context (where we are now) in part two, management objectives and policies in part three, desired outcomes (where we want to be) in part four and monitoring in part five. A sixth part provides supporting information.
[43] Information about the management of a particular activity may be variously referred to in a number of different sections in the CMS. Part three deals with types of activity and generally cross-references to other relevant provisions. Part four is focused on Places and also deals with the proposed activities and integrated management so the outcomes, objectives and policies in any particular section may be influenced by the provisions of other sections.30
[44] The CMS also has an interpretation section. Important points for the purposes of these proceedings are the following:
(1)“Only the operative parts of the CMS will have statutory effect. The operative parts are limited to objectives and policies”.31
(2)“In the event of doubt, the operative parts of the CMS will be interpreted in favour of the intrinsic values identified at specific Places”.32
29 West Coast CMS, above n 18, Foreword.
30 West Coast CMS, above n 18, at [1.3.1].
31 At 5 (Policy 1).
32 At 6 (Policy 4).
[45] “Recreation” policies are covered in part three under the heading “People’s Benefit and Enjoyment”.33
[46] The CMS says that the term “recreation” encompasses the full range of activities undertaken by people for leisure purposes and experiences. This includes both passive enjoyment (appreciation of natural scenery from roadways) and more active outdoor activities (walking, tramping, hunting and motorised recreation). It says that tourism users are permitted to operate by the granting of concessions for recreational activities, facilities and services.
[47] Under the general heading “Recreation and Tourism Activities” and in particular aircraft, the following policy is set out:34
1Aircraft may be authorised to land within public conservation lands where this:
(a)is necessary for the Department to perform its functions; or
(b)facilitates access for emergency or search and rescue purposes; or
(c)is compatible with statutory purposes for which the place is held inconsistent with any relevant national park management plan; and
(d)is consistent with the objectives and policies for the relevant recreation zone/zones (see Sections 3.6.1.2 to 3.6.1.6) and;
(e)does not compromise the desired outcomes for Places (see Part 4, Chapter 4.2).
…
[48] Chapter four divides the West Coast into a number of “Places” and sets desired outcomes for each Place describing what the West Coast conservancy will be like in 2020 if the direction in the CMS is followed.35
33 At [3.6].
34 West Coast CMS, above n 18, at 130.
35 At [4.1].
[49] The park is substantially within the Paparoa Place.36 Paparoa Place is adjacent to the Kawatiri, Inangahua and Mawhera Places. Maps also identify sensitive interest sites, front country sites, backcountry sites and remote zones. In summary, the desired outcomes for Paparoa Place are:37
Paparoa National Park stands as a premiere example of natural New Zealand. It is one of the few national parks where natural quiet predominates and is a sanctuary for a diversity of nationally and internationally important geological features and indigenous plants and animals. …
[50] Part four of the CMS deals with Desired Outcomes. The Desired Outcome for “People’s Benefit and Enjoyment in 2020” for Paparoa Place38 includes at 4.2.3.for the National Park 7 as follows:
Paparoa National Park is renowned for its natural quiet, the retention of its outstanding natural remote character and its range of low-impact nature-based, passive recreation activities. Other than vehicle use (see Section 3.6.4.17) of the Bullock Creek public road and Perseverance Road (the latter is located in Inangahua Place), the Park is free of activities involving vehicles, including aircraft; however, mountain bike riding opportunities may be available on specified roads or routes identified in the Paparoa National Park Management Plan.
[51] The CMS goes on at 4.2.3.7 to note that a 50 metre-wide “restricted aircraft landing” buffer zone has been established on the conservation lands bordering Paparoa National Park, for the purpose of protecting the high natural quiet values of the park. Within that zone, aircraft may only land for conservation management or emergency purposes.39 The Department does not control airspace, but it advocates strongly against scenic flights over the park so that people can continue to enjoy the natural quiet of these places. Civil Aviation Authority designates a restricted airspace over the sensitive key destinations within Paparoa National Park and points of interest.40
36 At 177 (Map 5), the CMS identifies the Places as: Karamea, Kawatiri, Paparoa, Inangahua, Mawhera, Hokitika and Te Wāhi Pounamu. The national park is within Paparoa Place, and to a lesser extent within Inangahua Place and Mawhera Place.
37 At [4.2.3.2]: under the general heading “Desired Outcome for Paparoa Place”. Immediately preceding this section, the CMS sets out the recreational outcomes: at [4.2.2.6].
38 West Coast CMS, above n 18, at [4.2.3].
39 At 215 and 216.40 At 216.
[52]For outside the National Park, clause 4.2.3.7 further says:41
Outside Paparoa National Park, irregular or occasional aircraft landing concessions may be granted throughout the backcountry–remote zone and the remote zone (see Map 11). Concessions may be granted for regular aircraft landings within the backcountry–remote zone where adverse effects on conservation values, recreational users, remote or wilderness values can be avoided or otherwise minimised. Regular landings may occur for the purposes of positioning backcountry recreationists (including hunters, rafters and kayakers) or for scenic landings. Regular landing concession conditions specify restrictions on landing sites and frequency of landings. …
[53] Part three of the CMS deals with “Management Objectives and Policies”. “Aircraft” is dealt with under the heading “Recreation and Tourism Activities”. Clause 3.6.4.2 says:
“Aircraft landings for recreation purposes are not permitted in Paparoa National Park …”
Submissions of the Applicants
[54] The applicants say that 3.6.4.2 and 4.2.3.7 of the CMS explicitly provide that aircraft landings for recreational purposes are not permitted in the park and that the park is to be free of activities involving aircraft.
[55] They say the provisions in the Management Plan in so far as they provide for recreational aircraft landings in the park should be struck out. This includes landings associated with sporting events, which are within the definition of recreational activities in the CMS. The proposed strike outs include landings for the transportation of packed mountain bikes and passengers within Tī Kōuka place and various consequential amendments.
[56] In the event that this Court finds that the Management Plan does derogate from the CMS and relief is appropriate, DOC largely agrees with the applicants as to what should be deleted from the Management Plan following a revision by the applicants after DOC’s initial criticisms of the proposed deletions. Apart from one matter, which is not significant, DOC does not contest the detail of proposed deletions.
41 At 216.
[57] A copy of the relevant parts of the Management Plan with the proposed deletions is attached to this judgment as Attachment 2.
[58] DOC largely supports the applicant’s submissions on derogation. It says it has considered whether there are other interpretations that might point to the documents being consistent but concedes there are no credible alternative interpretations which support consistency.
[59] Arguments suggesting how the provisions might be reconciled were advanced by the Conservation Authority. However, in the course of submissions, Ms Baker-Galloway indicated that the matters raised went largely to the exercise of my discretion rather than supporting a non-derogation argument.
[60]I refer to those arguments below.
Analysis
[61] In relation to conservation lands generally, the policies for landings in the West Coast conservancy are set out at 3.6.4.2, which allows some landings. It says “[a]ircraft may be authorised to land within public conservation lands where this …
(e) does not compromise the desired outcomes for Places (see Part 4, Chapter 4.2)”.42
[62] However, there is a direct conflict between the provisions prohibiting aircraft landing for recreational activities set out in the CMS and the Park’s Management Plan for the National Park. The CMS says that the desired outcome for the Park in 2020 is that “the park is free of activities involving vehicles, including aircraft ….”.
[63] As I noted, the CMS also provides for a 50 metre-wide “restricted aircraft landing” buffer zone on public conservation lands bordering Paparoa National Park for aircraft to land only for conservation management or emergency purposes.43 Outside Paparoa National Park regular or occasional aircraft landing concessions may be granted on conditions.44
42 West Coast CMS, above n 18, at 130. See above at [47].
43 At 215.
44 At [4.2.3.7].
[64] The interpretation policies are set out at 1.4 of the CMS. Policy 4 says that only the operative parts of the CMS will have “statutory effect”.45 This includes the outcomes for Places in chapter 4.2, and so includes the restrictions on aircraft set out above.46 The CMS gives primacy to the Desired Outcomes in part four, which states that “… the Park is free of activities involving vehicles, including aircraft”.47
[65] Further, to support the prohibition against aircraft landing in the park (outside the permitted purposes) the interpretation Policy 4 provides “in the event of doubt, the operative parts of the CMS will be interpreted in favour of the intrinsic values identified at specific Places (see Volume 1, Part 4, Chapter 4.2.)”.48 The “[i]ntrinsic values” include the “natural quiet” of the park.49
[66] There was a suggestion that the CMS contemplated motor vehicles in the National Park. However, the presence of any vehicle is limited by the General Policy for National Parks. That is higher in the hierarchy of planning devices than the CMS.
It provides that:50
[p]owered vehicles (including, but not limited to automobiles, motorcycles, motorised bicycles and trail bikes, snow-mobiles, beach vehicles and hovercraft) … should not be taken or used in national parks except on roads formed and maintained for vehicle use, and on routes specifically approved for use by a specified type of powered vehicle in a national park management plans.
[67] In any event, the specific prohibition on aircraft would override any general reference to motor vehicles.
[68] DOC noted that the applicants’ argument relied not only on the prohibition on aircraft by 3.4.2.7 of the CMS, which provided the Park was to be free of activities involving vehicles including aircraft, but also on the preamble statement to paragraph 3.6.4.2, which states: 51
45 At 5.
46 At [4.2.3.7].
47 At 215. There are specific provisions for vehicles on formed roads in the General Policy for National Parks, above n 17.
48 West Coast CMS, above n 18, at 6.
49 At 206, 214 and 215.
50 General Policy for National Parks, above n 17, at [8.6](f).
51 West Coast CMS, above n 18, at 129.
… Aircraft landings for recreational purposes are not permitted in Paparoa National Park or the five gazetted wilderness areas (see table 3) while aircraft used within Arthur’s Pass National Park should not be approved for scenic flights for heli-skiing, heli-hiking or position recreationists (Policy 6.4.8(d),
Arthur’s Pass NPMP). …
[69] DOC says the preamble is not relevant as it is not operative therefore it does not have statutory effect.52 The CMS specifically states which provisions are “operative”. The operative provisions in relation to part three are “limited to objectives and policies”. The operative provisions do not include the preamble text. Therefore, the preamble is descriptive only.
[70] In my view the operative provisions contained, set out above at [61]–[65], clearly prohibit aircraft landing (which includes hovering) for recreational activities or for any purpose not expressly stipulated.
Conservation Authority’s Position
[71] The National Park has been governed by a management plan approved by the Conservation Authority dating back to 1992. A reviewed version became operative on 1 February 2017. The Management Plan had been approved by the Conservation Authority on 5 December 2016 and the reviewed version became operative on 1 February 2017. Ms Baker-Galloway indicated that the plan had been developed after an extensive public consultation process and represented a commitment by DOC and West Coast Tai Poutini Conservation Board working in partnership with Te Rūnanga o Ngāi Tahu and Te Rūnanga o Ngāti Waewae to the community and businesses “to secure the fullest proper use of the park while preserving its natural, cultural and historical features”. The applicants had made submission on the Management Plan in August 2016. Their submissions did not raise the issue. The plan became operative in February 2017. The present issues were not raised with the Conservation Authority until May 2019 more than two years after the plan became operative. The result was these proceedings.
[72] Ms Baker-Galloway says the National Park Plan reflects the input of any groups and in particular the Pike River families. This is a point Mr Bushby also raised,
52 See above at [44].
which I will deal with later. In 2015, the Conservation Authority had approved the addition of the Pike River Mine site to the Paparoa National Park. The CMS had become operative in 2010, but this was before the Pike River mining tragedy and the withdrawal of extracted mining enterprise on the West Coast. The CMS was due for review in 2020, but that process has now stalled.53
[73] The Conservation Authority took the view that there was a tension in the way the various plans had handled the landing of recreational aircraft. Ms Baker-Galloway accepted however ultimately that any tension may be more relevant to relief.
[74] The CMS provided that in the event of doubt, the operative parts of the CMS would be interpreted in favour of the intrinsic values.54 Ms Baker-Galloway made the point that there may be an issue as to whether the intrinsic value of “natural quiet” was anthropocentric and so required a wider interpretation than might be taken from the plain meaning of the words. Ms Baker-Galloway agreed that it was a subtle point that would require further development and likely need evidence to pursue. She did not take it further.
[75] Ms Baker-Galloway further submitted that the delay by the applicants might suggest that the discretion should be exercised against granting relief. She said:
(a)There had been consideration of launching a partial review of the CMS to deal with the present issues. However, there had been some opposition to that, so a full review was not inevitable.
(b)A full review would not be completed for many years and in the meantime dependent on the outcome of this decision, it was possible that recreational aircraft landings in the national park would be prohibited despite the need for that issue to be reconsidered to enable public access to the national park so that the Management Plan, including vision of the Pike River families, could be realised.
53 In accordance with s 17H(4)(b) of the Conservation Act 1987.
54 See above at [43].
(c)Mr Bushby had been preparing his application for concession for two and a half years on the basis of the wording of the Management Plan. He now he is faced with the possibility that the result of these court proceedings will mean his application is prejudiced.
Mr Bushby’s Submissions
[76] Mr Bushby is clearly passionate about promoting activities and tourism on the West Coast and in particular the Park, in order to attract people and resources. He is also passionate about public access to the conservancy in general. Mr Bushby indicated that he is part of a group that promoted West Coast employment opportunities as it was transitioning away from extractive industries towards sustainable tourism, empowering active girls (and boys) through active learning and leveraging the West Coast’s adventure sportswomen to promote the area as an epicentre of “Sisu Spirit”55 and to host a world class “environmentally conscious educational/sporting event on the Paparoa Track from which to promote [the] region and the strong female mountain athletes that call the West Coast home”.
[77] That project is called the “Paparoa”. Once it is established, Mr Bushby intends to transfer the Paparoa into a charitable trust. At present it is now an incorporated community initiative that was created through consultation with Pike River families, local West coast schools, Ngāti Waewae, Department of Conservation, Development West Coast, Sisu Girls (Outdoor Education), Tai Poutini Polytechnic’s outdoor education programme, local sports clubs and West Coast councils.
[78] Mr Bushby did not purport to speak on behalf of any of those groups but said he advanced perspectives from their points of view. He himself is a self-employed business owner who grew up on the West Coast and had worked with the 29 who died in the Pike River Mine tragedy.56
55 Sisu roughly translates to “nuggetyness” and resilience according to Mr Bushby.
56 Intervener’s submission for judicial review dated 10 March 2021, page 1.
[79] Mr Bushby made a number of points in his wide-ranging submissions. They did not focus on the issue of derogation. First, he says the CMS was never fit for purpose:
(a)In 2010 it did not make sense to record that vehicles including aircraft did not land in the national park because there were many helicopter landings in the park at that time and that continues to be the case:
(i)Mr Bushby pointed to information he had sourced about the number of landings made for the purposes of the maintenance of the track and building purposes over the last few years in order to emphasise his point. He said the national park has never been “a quiet place”.
(ii)Mr Bushby pointed out that the Park was being presently used by vehicles, for instance, by recreational fishermen and farmers. Therefore, it could not be that vehicles were not permitted. Ms Higbee, for the second respondent pointed out that vehicles were permitted only on formed roads and other roadways as permitted under the Guiding Principles which took precedence over the CMS.
(iii)Mr Bushby also expressed his concern that an option for bringing tourists to the area had been discussed involving e- bikes that might be used on the track. He said this would be a problem now because even small motors were within the definition of “vehicles”.
(iv)Mr Bushby noted that even all terrain wheelchairs could not get far up the track. However helicopters could easily take them up into tussock land which otherwise was impossible for disabled and even many able-bodied hikers to reach.
[80] In response, DOC says that the noise associated with its maintenance activities and building on the Paparoa Track as well as noise associated with the operational mine is coming to an end subject to ongoing maintenance of the tracks and facilities and ongoing work by the Pike River Agency.57
[81] Nevertheless, DOC acknowledges the park is not at all times naturally quiet. It says that the argument that there are parts of it which are subject to noise and activity may point to the dangers of the values in the CMS being gradually undermined.
[82]Mr Bushby also pointed out:
(a)an update to the CMS should have been triggered by circumstances on the West Coast: in particular, he pointed to the Pike River tragedy and the fact the government had agreed to establish the track and encourage the public to come to Paparoa National Park. This necessarily involved aircraft landings to bring people in as well as services and support the activities including multi sports. Mr Bushby pointed out the plans outlined by DOC at a public business breakfast had supported those activities. Mr Bushby said that it would be virtually impossible to get to the vent shaft of the Pike River Mine (which had significant historical and cultural interest for the New Zealand public) and other parts of the track in the national park without aircraft assistance. Only a few hardy trampers would be able to venture to those spots.
(b)The CMS needed to be a living document but given the likely hiccups in the development of a new CMS, including the fact that some conservancies overlap and their CMS’s may need to be updated as well, it could be 18–20 years’ time before a new CMS was put in place. He said the document should reflect the significant changes as the West Coast moved from an extractive mineral economy to a sustainable tourism economy. Mr Bushby said it may be possible to redefine “recreational” landings because the park was “a cultural asset” and concessions could be allowed on that basis where appropriate.
57 Which operates under a specific arrangement.
(c)Mr Bushby also argued that aircraft landings in relation to the multi- sport event was for health and safety support and could be used as a training ground for New Zealand Land Search and Rescue and St John’s personnel.
(d)The deal with the government: Mr Bushby said there was a deal with the government to bring people and services to the area to commemorate the Pike River tragedy. These plans were to be implemented under the principles of the Management Plan. The “deal” contributed to a change in circumstances which should have triggered a review of the CMS. Mr Bushby noted a further 3,971 hectares had been added to the park following the Pike River tragedy. Tracks and places of interest had been established as a living memorial for the 29 who died at Pike River. Mr Bushby also noted that there has been considerable time, effort and money spent on the project by the government and it was only fair that everyone had an opportunity to get into the park. Mr Bushby said this deal should override the CMS.
(e)Sustainable tourism: the move to a sustainable tourist economy involving the encouragement of the public to visit Paparoa National Park and walk the track had been put in place to in return for moving the coast away from extractive industries. This was also part of the government “deal” with the West Coast in return for closing the extractive industries which were detrimental to the environment. That involved welcoming the public to the national park. It could become a centre for multi sports and other sporting events internationally. Mr Bushby had been heavily involved in setting up sporting events. These would encourage, in particular, women endurance athletes to the West Coast to showcase their talents and provide opportunities for them and others. He said if helicopters could not land to support these events, including for health and safety purposes, it would undermine the events and their success.
(f)Mr Bushby said that the Conservation Act and National Parks Act both supported the achievement of the ends that he was promoting – that is to allow recreational aircraft landings in support of recreational activities in the wider sense. This would include supporting health and safety services for sporting events and also for access in the wider sense.
(g)Mr Bushby also pointed to the fact that the functions of DOC, set out at s 6 of the Conservation Act, included to foster the use of natural and historic resources for recreation and allow the use for tourism to the extent that it was not inconsistent with its conservation.58 In addition, he pointed to the National Parks Act principles to be applied in national parks including that the parks were to be maintained in their natural state and the public were to have a right of entry.
(h)Accessibility and human rights issues: Paparoa Track was one of the top 10 walks in New Zealand and yet the park was difficult to access for able bodied people unless they were very fit. It was particularly difficult for older people (for instance some of the parents of the Pike River miners) and impossible for disabled persons. Therefore, prohibiting aircraft landings preventing visits by these people was a breach of their human rights.
(i)Treaty of Waitangi issues: Mr Bushby indicated he was not a member of Ngāti Waewae and did not speak for them. He merely pointed to s 4 of the Conservation Act, which provides that the Act is to give effect to the principles of the Treaty of Waitangi. Mr Bushby did not pursue this issue. It is outside the scope of these proceedings. I do not therefore take this matter any further.
[83] The issues concerning the Human Rights Act 1993 and proper access to the park was not at issue in these proceedings. Mr Bushby did not develop them in any depth nor was there any evidence in relation to the issue. The applicant noted that a
58 Conservation Act 1987, s 6(e).
counter argument could be that such discrimination would be reasonably justified under s 5 of the New Zealand Bill of Rights Act 1990. This is because DOC provides a range of recreational experiences across its conservation estate and is tasked under the relevant legislation with balance in competing principles of providing access while preserving parks in their natural state.59 The issue is outside the scope of these proceedings.
[84] Mr Bushby has pointed to a number of practical, political and policy reasons in support of aircraft particularly helicopters being permitted to land in wider circumstances than is contemplated in the CMS. This is needed he says, to report on the considerable change of focus that is taking place in relation to the West Coast economy, to recognise the coast’s progress toward preserving the environment and making the national park accessible for the public.
[85] The legislative principles to which Mr Bushby pointed are general. Under those principles, various instruments have been developed which put into effect the general policies through the relevant conservation management strategies and operational management of the national parks. The instruments and the planning documents, which effect the policy and principles of the legislation, must be interpreted according to the hierarchy of plans and the usual rules of interpretation.60 The issue before the Court is whether there has been a derogation, not whether the provisions are generally appropriate given present circumstances in the area.
[86] In general terms, Mr Bushby’s submissions relate to important issues for the West Coast but are not within the scope of the proceedings that are before the court. These proceedings relate to the public law grounds raised in judicial review. The
59 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington 2015) at [6.4], [6.5] and [6.10].
60 The Supreme Court summarised the approach to statutory interpretation as follows: “It is necessary to bear in mind that s 5 of the Interpretation Act 1999 makes text and purpose the key drivers of statutory interpretation. The meaning of an enactment must be ascertained from its text and in the light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5. In determining purpose the Court must obviously have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial or other objective of the enactment”: Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767, at [22]. See also: Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42.
matters raised by Mr Bushby are well outside the scope of these proceedings and are largely matters of policy for the government.
[87] Mr Bushby also noted that he would like DOC to clarify what “educational” meant and whether that was included within the definition of “recreation” in relation to aircraft landings. He was particularly concerned that his ventures with the Tai Poutini Polytechnic might not be within the definition.61 That is a matter for Mr Bushby to take up with DOC not for this Court in these proceedings.
Conclusion on Derogation
[88] In my view, it is clear that there has been a derogation from the CMS by the provisions of the Park Management Plan in so far as they relate to aircraft landing in the park for recreational purposes.
[89] As stated above,62 the CMS gives primacy to the desired outcomes in part four that “… the park is free of activities involving vehicles, including aircraft”.
[90] There is a clear prohibition on aircraft landings for recreational purposes in 4.2.3.2 of the CMS. This sets out the desired outcomes, which have “statutory effect”.63 And, in the event of doubt, “the operative parts of the CMS will be interpreted in favour of the intrinsic values identified …”.64 They include natural quiet.
[91] There are provisions of the CMS that seem to indicate that aircraft landings might be permitted in the Management Plan.65 However the caveat is that they will only be permitted to the extent consistent with the desired outcomes. Consistent with this is the policy that aircraft may be authorised to land on public conservation lands but only where this does not compromise desired outcomes for Places.66
61 This is in reference to the Cave Creek Tragedy, referred to above at 3.
62 See above at [64].
63 West Coast CMS, above n 18, at 5.
64 At 6.
65 West Coast CMS, above n 18, at 131.
66 At 130. See above at [47].
[92] The General Policy for National Parks provides that “planning and management for recreation and other opportunities for the benefit, use and enjoyment of each international park should … preserve national park values, including natural quiet, as far as possible”. 67 The CMS does not derogate from the General Policy for National Parks in the National Parks Act. The CMS reinforces the intrinsic value of natural quiet and in the event of doubt the CMS must be interpreted in favour of the intrinsic values.68 The prohibition in general terms of aircraft landings supports that intrinsic value.
[93] I am satisfied that the interpretation put forward by the applicants and DOC is correct.
Exercise of discretion
[94] The applicants’ cause of action is based on error of law. They say that in drafting the Management Plan, DOC and the Conservation Authority respectively erred in law to the extent that the plan contains provisions which derogate from the CMS, contrary to s 44A(2) of the National Parks Act 1980.
[95] I have concluded that in providing for recreational aircraft landings in the park, the Management Plan clearly derogates from the CMS. I am also satisfied that the parts of the Plan that have been identified and relate to aircraft landings for recreational activities in the national park directly conflict with the provisions of the CMS.
[96] The applicants seek orders setting aside the plan in so far as it includes the provisions identified in the attachment to this judgment. Secondly, they seek a declaration that the plan derogates from the CMS in providing for recreational landings in the park as set out in the attachment.
[97] The Judicial Review Procedure Act 2016 allows the Court to grant relief by quashing and by setting aside the relevant decision as well as by the making of a declaration.69
67 General Policy for National Parks, above n 17, at [8.1](c)(i).
68 See above at [65].
69 Judicial Review Procedure Act 2016, s 16(1) and (2).
[98] The Court may direct reconsideration of the matter by the person whose act or omission is the subject matter of the application70 with directions to reconsider the whole or any part of the matter that is referred back.71
[99] The Court has a discretion to refuse to grant relief72 and may do so where the sole ground of relief is a defect in form or a technical irregularity and no substantial wrong or miscarriage of justice has occurred.73
[100] However, the more fundamental the error, the more likely that the relief will be granted. There must be a good reason to decline to grant relief.74 Courts today will generally find it appropriate to grant relief where there is some form of reviewable error.75
[101] In considering whether to grant relief, the Court should consider the gravity of error, the degree of prejudice for the applicant, the inevitability of the same outcome if the matter is returned for reconsideration and delay as well as the availability of other remedies and administrative convenience. Other factors that may be relevant are the conduct of the applicant, the nature of the power being exercised and the circumstances of the case as well as prejudice to third parties.
[102] The applicant and DOC (in the event I find there has been a derogation) agree relief is appropriate as sought (subject to some minor differences that I will deal with later). There is likely to be significant delay if the matter is referred back for reconsideration and the derogation is clear and significant. The Conservation Authority pointed out there may be prejudice to Mr Bushby which must be considered. However, there is no evidence as to the prejudice to him except in general terms in that he has relied on the terms of the plan in order to note his concession application. That application is not before the Court.
70 Section 17(3).
71 Section 17(4).
72 Judicial Review Procedure Act 2016, s 18(1).
73 Section 19(1).
74 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60]–[61].
75 Ririnui v Land Corp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056.
[103]I also note:
(a)There are no current recreational aircraft concessions for Paparoa National Park.
(b)DOC admits that the unlawfulness identified by the applicants is continuing. This is not a case where the judicial review is taken for a one-off decision in respect of a particular person or a decision that is no longer operative76 so relief might be academic.
(c)This is not a case where the effective granting of relief would be to undermine the statutory scheme.77 In this case, the planning instruments adopted under the Conservation Act are significant to its scheme and would be undermined if relief were not granted.78 The hierarchy of planning instruments in the context to the National Park’s Act is evident from the clear statutory language in that Act: “nothing in any management plan should derogate from the provisions of any conservation management strategy”.79
[104] There is no doubt that substantial time and effort went into the preparation of the Management Plan by the community including the families of the men that died in the Pike River Mine tragedy. Nevertheless, there is a clear derogation in that plan from the provisions of the CMS.
[105] Mr Bushby points out the CMS appears to be out of date and it does not look as though it will be changed in the near future. This leaves a lacuna in the Management Plan until the CMS is amended to provide for recreational aircraft landings in the park, if that occurs. However, this is a case where there is a clear conflict in relation to a significant matter: aircraft landing for recreational activities in the national park.
76 DOC cited the arguments in favour of declining relief recorded by the High Court (as a Bench of three) in Borrowdale v Director-General of Health [2020] NZHC 2090 at [284] and [290].
77 For instance, as in Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408 at [48].
78 Hawke’s Bay Regional Investment Company Ltd v Royal Forest and Bird Protection Society of New Zealand [2017] NZSC 106, [2017] 1 NZLR 1041 at [130]–[149] per Elias CJ, Glazebrook and McGrath JJ.
79 National Parks Act 1980, s 44A(2).
There are processes for the reconsideration of the CMS. It is not appropriate for this Court to pre-empt them by allowing a provision that is clearly contrary to the CMS as it stands to persist. This is not a technical irregularity.
[106] Mr Bushby has an application for a concession before DOC. He wants that dealt with in the usual course by DOC. Any apparent prejudice is outweighed by the fact that there is a clear derogation in the plan and if not remedied it will undermine the existing CMS. The proper processes should be engaged to update the CMS when all relevant matters can be taken into account.
[107]I consider in the circumstances that this is a case where relief should be granted.
[108] The invalid parts of the plan are severable from the remaining provisions.80 The balance of the plan can independently survive on a “fair review of the whole”. It is also apparent the balance of the Plan would have been enacted even without the ultra vires portion.81
[109] The relief must be “fact specific, efficacious and capable of practical utilisation”.82 In this case, this will be achieved by striking out specific parts of the Management Plan.
[110]I therefore grant the following specific relief:
Amendments to plan
[111] Despite DOC’s submission to the contrary the statement: “[v]isitors to Tī Kōuka Place experienced moderate encounters with aircraft” as it appears in the Plan is accurate and does not derogate from the CMS on the basis there are non-recreational aircraft landings that can still occur in Tī Kōuka Place. At the end of the day DOC said that leaving that sentence would not prevent such non-recreational landings and
80 Transport Ministry v Alexander [1978] 1 NZLR 306 (CA) at [311]; and Phipps v Royal College of Surgeons [2000] 2 NZLR 513 (PC) at [24].
81 Attorney-General for Alberta v Attorney-General for Canada [1947] AC 503 (PC) at 513. Cited in Potts v Invercargill city Council [1985] 1 NZLR 609 (CA) at 620.
82 Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA 398, [2015] NZAR 1708 at [80].
so did not firmly oppose it being struck out. In my view all it does is record the existing situation. That provision should remain.
[112] The provisions of the Paparoa National Park Management Plan as indicated in “strike out” in the attachment to this judgment are declared invalid and are severed from the instrument.
Declaration
[113]The second item of relief sought is a declaration.
[114] DOC suggested that two paragraphs were more by way of description at the beginning of the proposed declaration and so unnecessary. These two paragraphs read as follows:
The West Coast Te Tai o Poutini Conservation Management Strategy (2010– 2020) provides in s 3.6.4.2 that recreational aircraft landings are not permitted in the Paparoa National Park:
… Aircraft landings for recreational purposes are not permitted in Paparoa National Park or the five gazetted wilderness areas (see Table 3) …
[115]And:
The CMS sets the desired outcomes in relation for Paparoa Place at s 4.2.3 of the CMS. This includes the Paparoa National Park. Section 4.2.3.7 provides:
Paparoa National Park is renowned for its natural quiet, the retention of its outstanding natural remote character and its range of low impact, nature-based passive recreational activities. Other than vehicle use (see Section 3.6.4.17) of the Bullock Creek public road and Perseverance Road (the latter is located in Inangahua Place), the Park is free of activities involving vehicles, including aircraft …
[116] I consider that the first paragraph (at [114] above) proposed by the applicant should not appear on the declaration. That paragraph does not refer to an operative provision in the CMS. However, the second paragraph (at [115]) is appropriate to put the declaration in context and should remain.
[117] Otherwise, DOC agrees with the proposed declaration. The declaration provides that for the avoidance of doubt and without limiting the meaning of
“recreation”, a list of aircraft landings that are allowed and accordingly are not for “recreational” purposes.
[118] The list includes the landings by the DOC for national park purposes including safety and management which are largely set out at s 17O of the National Parks Act. In addition, 28 of the existing 29 concessions are for landings for commercial wild animal control activities and one remaining landing is for utility servicing. These are permitted under the Act.
[119] Landings at the ventilation shaft and portal of the Pike River Mine for family members of the Pike River Mine men are included in the list. These are not considered to be recreational, nor are landings in support of Ngāi Tahu/Ngāti Waewae cultural purposes.
[120] The list is to make matters clear and is not intended to be a definitive list nor to provide any precedent for what might be allowed in future concession applications.83
[121] The parties have suggested that the wording be amended to substitute “without limitation” for the words “without limiting the meaning of recreation” in the CMS. This would avoid any suggestion that the meaning was limited.
[122]Accordingly, I make a declaration as follows:
Recreational aircraft landings
The West Coast Te Tai o Poutini Conservation Management Strategy 2010-2020 (the CMS) sets desired outcomes for “places” in the West Coast. Section 4.2.3 sets the desired outcomes for Paparoa Place, including the Paparoa National Park. Section 4.2.3.7 relevant provides:
Paparoa National Park is renowned for its natural quiet, the retention of its outstanding natural remote character and its range of low- impact, nature-based passive recreational activities. Other than vehicle use (see Section 3.6.4.7) of the Bullock Creek public road and Perseverance Road (the latter is located in Inangahua Place), the Park is free of activities involving vehicles, including aircraft…
83 The Pike River Recovery Agency is still in operation. That operates under an “access arrangement” in place under s 17O(3) of the Conservation Act 1987.
The High Court84 decision has found that the Paparoa National Park Management Plan (2017) derogated from the West Coast Te Tai o Poutini Conservation Management Strategy (2010-2020) by providing for recreational aircraft landings in the Paparoa National Park. References to such landings have been removed from the Management Plan.
Concessions for recreational aircraft landings in the Paparoa National Park may not be granted, save for non-powered recreational aircraft landings (e.g. hang gliding or paragliding).
This declaration does not affect the application of s 17O(3)(c) or s 17ZF of the Conservation Act 1987, or 10.6(g) of the General Policy for National Parks.
For the purposes of this declaration the term “recreational” shall be read in accordance with the definition of “recreation” provided in the glossary of the West Coast Te Tai o Poutini Conservation Management Strategy 2010-2020, at 315: “For the purpose of this CMS, the term ‘recreation’ encompasses the full range of activities undertaken by people for leisure purposes and the experiences they gain through these activities. ‘Recreational uses’ thus encompasses both passive enjoyment (such as the appreciation of natural scenery from roadways) and more active outdoor activities (such as walking, tramping, hunting and motorised recreation)”. The term “landings” shall be read in accordance with the definition of “landing” provided in s 17ZF(5) of the Conservation Act 1987.
For the avoidance of doubt without limiting the meaning of “recreation” in the CMS, aircraft landings for the following purposes are not recreational aircraft landings in Paparoa National Park:
a) landings by the Department of Conservation for national park management purposes;
b) landings for the construction, operation and/or maintenance of equipment (e.g. meteorological, seismic) or utilities (e.g. communication systems, transmission lines) authorised by the Department;
c) landings to support research, monitoring or the collection of material authorised by the Department;
d) landings in support of Ngāi Tahu/Ngāti Waewae cultural purposes;
e) landings for commercial wild animal control activities; and
f) landings at the ventilation shaft and portal of the Pike River mine for family members of the Pike River mine men.
84 Royal Forest and Bird Protection Society of NZ Inc & Anor v New Zealand Conservation Authority & Ors [2021] NZHC 1194 [27 May 2021].
This declaration is limited in effect to:
a) the Paparoa National Park Management Plan 2017 and the question of recreational aircraft landings in Paparoa National Park; and
b) the interpretation of the West Coast Te Tai o Poutini Conservation Management Strategy 2010-2020 insofar as it relates to recreational aircraft landings in Paparoa National Park.
Joint public statement
[123] An outstanding issue raised by Mr Bushby at a case management conference85 was whether a joint public statement that had been approved and published on behalf of the applicants and respondents to advise the public of these proceedings and to invite interested parties to make application to join was sufficiently clear. Mr Bushby was the only party who sought to join.
[124]The joint statement in so far as is relevant reads:
What is the legal issue? …
Under the National Parks Act 1980, a National Park Management Plan must be consistent with the Conservation Management Strategy.
[125]The statement went on to say:
Forest & Bird and FMC say that the Management Plan derogates from the West Coast Te Tai o Poutini Conservation Management Strategy 2010 (West Coast CMS) because the Management Plan allows for recreational aircraft landings in Paparoa National Park but such landings are not provided for in the West Coast CMS.
[126] Mr Bushby says that the reference to “recreational aircraft landings” did not convey the true implications of these proceedings. He said many operators would not realise that this extended to aircraft landings by commercial organisations for the purpose of positioning people for recreational activities, nor would they realise that it could exclude landings for providing health and safety equipment and personnel in support of recreational activities such as the multisport event he is planning.
85 Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Conservation Authority HC Wellington CIV-2020-485-360, 10 March 2021.
[127] I find the meaning of “recreational aircraft landings” is sufficiently clear for the purposes of the notice. The statement referred back to the Park Management Plan as that plan allowed “for recreational aircraft landings” in Paparoa National Park even if such landings were not provided for in the CMS. The notice was not intended to be a detailed explanation of the issues. Anyone interested in aircraft landings in the area would have been alerted to the fact that recreational aircraft landings were under scrutiny and could have made further inquiries. Mr Bushby does not suggest he has heard that others who wished to join had been misled by the notice.
[128] The joint statement was not only published but also sent to Mr Bushby as an applicant for a concession. He was also provided with court documents filed for the purposes of these proceedings to enable him to consider whether he would like to be joined. In addition, the joint statement was posted on DOC’s website and sent directly to the West Coast Tai Poutini Conservation Board, Te Rūnanga o Ngāti Waewae and the Pike River Families Group Committees with contact details.
[129] In my view, those steps were sufficient to bring the matter to the attention of any parties interested in aircraft landings in the area. That was all it was intended to do. It would be up to interested parties as to whether they wished to contact the applicants or DOC to get further information and pursue the matter.
[130] The joint statement was not misleading. It was approved by the Court. In my view was more than adequate to attract the attention of anyone who might be interested and allow them to take further steps in the matter, as Mr Bushby did.
Submissions following hearing
[131] Following the hearing, Mr Bushby filed submissions seeking that the proceedings be dismissed due to “conflicts of interest and questionable representation by the second respondent”. This was due to the fact that an in-house counsel with DOC is a member of a club, which itself is a member club of the umbrella organisation, FMC the second applicant. I requested submissions from other parties on the issue.86
86 Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Conservation Authority HC Wellington CIV-2020-485-360, 21 April 2021.
[132] This is an issue that Mr Bushby apparently raised with DOC some three weeks before the hearing. It was not raised at the hearing. The relationship Mr Bushby points to is remote. The very indirect association does not give rise to grounds for apparent bias. No actual bias is claimed. I therefore do not consider the matter raises any further matters which require the attention of the Court.
[133] Mr Bushby also requests that this Court require clarification of a DOC employee’s comments in a local newspaper on 22 March 2021. That is a matter for Mr Bushby to take up with DOC not for this Court.
Costs
[134] In my view there is no reason why costs should not follow the event in this case. I do note that the second respondent has cooperated to truncate these proceedings so instead of the estimated two-day hearing it was able to be heard in just over one day, despite the quantity of material involved.
[135] Counsel preferred not to make any submissions on costs until the judgment was delivered. In my view, an appropriate approach would be that costs follow the event on a 2B basis but with some concession for the cooperation between counsel. I also note that DOC took the carriage of preparation of the electronic hyperlinked bundles without which the matter was unlikely to have been heard in the time it took.
[136] I also note that the parties should take into account the fact that Mr Bushby acted as a contradictor and while his submissions were wide-ranging, he presented another perspective to the Court.
[137] Accordingly, any application for costs together with supporting memoranda should be filed on or before seven days of this judgment. Any response to be filed within a further seven days and any reply within a further three days.
Grice J
Solicitors:
Gilbert Walker, Auckland, for Applicants
Anderson Lloyd, Queenstown, for First Respondent Crown Law Office, Wellington, for Second Respondent
Attachment 1
Attachment 2
‘Strike-outs’ to Management Plan supported by the second respondent
3.8.5 Should grant concessions for aircraft landings in the Yellow Zone only where the landings meet the criteria in Policy 3.8.3 and in accordance with the following limits:
a) for commercial purposes, no more than two concessions for the whole zone, two landings per concession per day at any one site (defined as any landing site within a 1-kilometre radius of the initial landings site) and a maximum of 20 landings per aircraft per site per year;
orb)
for recreational purposes, two landings per aircraft per day at
any one site (defined as any landing site within a 1-kilometre
radius of the initial landings site) and a maximum of 20
landings per site per year.3.8.7
May grant concessions for aircraft landings associated with
sporting
events orfilming activities where they do not meet the limits and/or criteria for the Yellow or Orange Zone, and/or the prescriptions for visitor management zones in Appendix 2 (see in accordance with Policies 3.11.1–3.11.6 and subject to an assessment of:a) any adverse effect of the
event orfilming activity and the extent to which it is possible to avoid, remedy and mitigate those effects. Examples of mechanisms used to address any adverse effects include:i. informing neighbours and potential visitors to the site that the activity is to occur or is occurring;
ii. avoiding peak visitor times;
iii. avoiding or protecting sites with high natural, historic or cultural values, including Ngāi Tahu/Ngāti Waewae values in consultation with Te Rūnanga o Ngāti Waewae;
iv. the use of remotely piloted aircraft; and
v. low-level flying (i.e. hovering) but no actual landing on the ground.
b) cumulative adverse effects on the values at the site; and
c) the need for public consultation of the
event orfilming activity.3.11.2
May grant concessions for sporting events where they are consistent with
the aircraft zoning provisions in this Plan, Policies 3.8.1–3.8.9,Part Two: Ngā Tamariki a Tāne objectives and policies, and the aircraft
access zones on Map 5;5.2
…
Aircraft landings in Tī Kōuka Place are required for monitoring the mine site, administration buildings and ventilation shaft, and for those wanting to remember the Pike River mine men.
Aircraft landings for
the facilitation of recreational users are permitted.5.4 Table 8 Outcomes
…
d) Visitors to Tī Kōuka Place experience moderate encounters with
aircraft.[The applicant seeks the removal of this provision but DOC opposes its removal as being inconsequential.]5.4 Table 8 Policy 7
Should grant concessions for commercial operations and services
(including aircraft activities, in accordance with Policies 5.4.10–5.4.17)on the Pike29 Memorial Track and the Paparoa Track, only where they:
a) provide services and backcountry accommodation for guided and/or unguided walkers and bikers on the track; and
b) increase the range of opportunities available in Paparoa National Park without affecting other visitors’ use and enjoyment of the Park.
5.4 Table 8 Policies 10
Should grant concessions for aircraft landings adjacent to the Paparoa
Track within Tī Kōuka Place only in accordance with:
a) Policy 5.4.15; or
b) Part One: Te Wao Nui Policies 3.8.1–3.8.9; and
c) the following criteria:
i. at the designated landing sites at the huts on the Paparoa Track,
for the transportation of packs, mountain bikes and
passengers, where there are no more than five landings per hut
per day;
ii. at the agreed landing sites on the escarpment, for the
transportation of packs, mountain bikes and passengers,
where:
a. there are no more than:
i. two landings per day; and
ii. 20 landings per year;
b. people and bikes landed use a formed track or route to access
the Paparoa Track; and
iii. if evidence shows that adverse effects are occurring at
the escarpment landing sites, management of the
landings at these sites may change;
iv. no more than two concessions are granted; and
v.the transportation of mountain bikes (in addition to packs
and passengers) is only granted to one concessionaire on
a five-year trial basis.5.4 Table 8 Policies 11
Should not grant concessions for aircraft landings to transport mountain
bikes at the sites identified in Policy 5.4.10, following the completion
of the five-year trial, unless a partial review of this Plan has been
undertaken and it has been demonstrated that:
a) demand is evident;
b) the benefit, use and enjoyment of other users can be protected;
and
c) adverse effects on natural, historic and cultural values can be
avoided, mitigated or minimised.5.4 Table 8 Policies 12
Should grant concessions for aircraft landings within Tī Kōuka Place only in accordance with Part One: Te Wao Nui Policies 3.8.1–3.8.9 and at the following landing sites
orfor the following purposes:a) the ventilation shaft and the portal of the Pike River mine, only where the landings are for family members of the Pike River mine men; and
b) landing sites other than those identified in
Policy 5.4.10 orclausea) above, where there are no more than:
i. two landings per day at any one site;
ii. two concessionaires; and
iii. 20 landings per concession per year.
5.4 Table 8 Policies 15
May grant concessions for aircraft landings on the Pike29 Memorial
Trackand the Paparoa Track, where the landings do not comply with
the limits and/or criteria in Policy 5.4.10 only in support of sporting
events.5.4 Table 8 Policies 18
Carry out a full analysis of whether to allow:
a) the aircraft landings provided for by Policy 5.4.10 [c)v)]
beyond the initial five-year period; andb) electric power-assisted pedal cycles (e-bikes) on the Pike29 Memorial Track and the Paparoa Track by way of a partial review of this Plan. The analysis should include:
i. experiences elsewhere on public conservation land, particularly the Heaphy Track and the Old Ghost Road Track;
ii. consideration of the costs and benefits of any changes, consistent with the General Policy for National Parks 2005;
iii. any economic benefits to public conservation lands and the Buller District;
iv. adverse effects of additional activities on recreational experience; and
v. any safety implications.
5.4 Table 8 Milestones 4
A report has been prepared on the monitoring results for the aircraft
landing provisions in Policy 5.4.10; including a full analysis of
whether to allow the transportation of mountain bikes beyond the
initial five-year period by way of partial review of this Plan.7.2
…
Aircraft landings in Horoeka Place are relatively low given the amount of private land where aircraft landings can occur.
However,
from time to time landings are required inside this Place to position
recreational fishers and other users.
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