Tuna v Te Urewera Board

[2024] NZHC 1526

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-000105

[2024] NZHC 1526

UNDER

the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

WHARENUI CLYDE TUNA

Applicant

AND

TE UREWERA BOARD

First Respondent

TRUSTEES OF TUHOE – TE URU TAUMATUA

Second Respondent

DIRECTOR-GENERAL OF CONSERVATION

Third Respondent

Hearing:	On the papers
Judgment:	13 June 2024

JUDGMENT OF DOWNS J

(Relief)

This judgment was delivered by me on Thursday, 13 June 2024 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Izard Weston, Wellington. Buddle Findlay, Wellington. Crown Law, Wellington.

WL Aldred, Wellington. BR Arapere, Whanganui. TC Stephens, Wellington.

TUNA v TE UREWERA BOARD [2024] NZHC 1526 [12 June 2024]

Background

[1]                 In a judgment of 14 December 2023, I determined the respondent decision-makers had erred.1 This judgment addresses relief, following additional submissions on that topic. It and the earlier judgment should be read together.

The opposing cases

[2]                 Mr Tuna seeks declarations in accordance with [106]–[108] of the earlier judgment. Mr Tuna also seeks more onerous forms of relief:

An order preventing the second respondent from removing or demolishing any or any further Crown improvements within Te Urewera (including but not limited to huts and bridges) except in a manner that is consistent with a valid existing management plan and annual operational plan and which otherwise complies in all respects with Te Urewera Act.

A mandatory order requiring the first and second respondent, without delay and within 9 months of the date of the Court’s judgment on relief, to prepare and make available a documented plan in accordance with paragraph [86] of the judgment:

to reinstate access to accommodation in Te Urewera for the benefit of all Tūhoe, other iwi and hapū, and the public; and

to ensure that the indigenous ecological systems and biodiversity of Te Urewera are preserved, and introduced plants and animals are exterminated, including by the provision of accommodation that is suitable to enable conservation work.

An order in the nature of mandamus requiring the third respondent to immediately perform her functions and duties under the Te Urewera Act according to law.

[3]                 The respondents contest all forms of relief. Essentially, they argue their errors are insufficiently serious to warrant it, and declarations would lack utility, as the earlier judgment speaks for itself. The respondents also argue Mr Tuna has not suffered significant prejudice.

[4]More onerous relief is contested as constitutionally inapt.

1      Tuna v Te Urewera Board [2023] NZHC 3680, [2024] NZRMA 41.

Principle

[5]                 Relief is discretionary in judicial review, albeit reviewable error typically attracts some form of relief.2 Considerations include:3

(a)The gravity of the error(s).4

(b)The extent of prejudice to the applicant.

(c)Utility (of relief).

Analysis

[6]                 The failures of the first and second respondents in relation to s 5(1)(b); 5(1)(c); and 5(2) of Te Urewera Act 20145 are errors of significance because s 5 is a provision of fundamental importance to the Act. And, as I observed in the earlier judgment, the Crown’s adoption of a wholly retrospective annual operational plan is “a striking example of reviewable error”.6 Consequently, error-gravity favours relief.

[7]                 So too prejudice. Mr Tuna’s ability to access and enjoy Te Urewera has been affected. The same is true for other members of Tūhoe, with ramifications for Tūhoetanga. Public access and enjoyment have been affected. Demolition of all but two of the biodiversity huts, absent any plan for replacement structures, is likely to be injurious to the ecology of Te Urewera, at least in the short term.7

[8]                 As observed, the respondents argue declarations would lack utility. On behalf of the Crown, Mr Gough emphasises the Crown is a responsible Treaty partner, and that the Department of Conservation will be guided by the earlier judgment.

2      Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].

3      Philip Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at [27.4.2].

4      At [27.4.3(8)]; and Middeldorp v Avondale Jockey Club Inc [2020] NZCA 13, (2020) 25 PRNA 651 at [43]. The more significant the error, the more likely the Court will grant relief.

5      The Act.

6      Tuna v Te Urewera Board, above n 1, at [108].

7 At [86].

[9]                 I am not persuaded of a lack of utility. The proposed declarations are “fact-specific, efficacious and capable of practical application.”8 Declarations would serve an important purpose: vindication.9 And, “the rule of law itself requires that if  a law has been contravened that should be publicly enunciated and formally made known.”10

[10]              As will be apparent then, the factors elide to favour relief in the form of declarations.

[11]              The same is not true of the more onerous relief sought. An order preventing the removal or demolition of any Crown improvements (except in a manner compliant with the Act) would serve no useful purpose. An order requiring the Director-General to perform her functions and duties under the Act would be inapt for the same reason.

[12]              I also decline an order requiring the first and second respondents to prepare, and make available to Mr Tuna, a plan reinstating access to accommodation and ensuring indigenous ecological systems and biodiversity are preserved. Those exercising functions and powers under the Act enjoy a considerable margin of appreciation in the exercise of those functions and powers. I restate what I said in the earlier judgment: “The Board governs Te Urewera, not the courts”.11

Result

[13]I make four declarations:12

1 The first respondent acted unlawfully by passing  a  resolution  to  demolish the huts without a plan to accord the principles in s 5(1)(b),

(c) and 5(2) of the Act.

2.The second respondent acted contrary to the principles in s 5(1)(b), (c) and 5(2) of the Act, hence unlawfully, by demolishing the huts. The second respondent also acted unlawfully by demolishing the huts in

8      Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA 398, [2015] NZAR 1708 at [80].

9      Borrowdale v Director-General of Health [2020] NZHC 2090, [2020] 2 NZLR 864 at [288].

10     Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442 at [141].

11     Tuna v Te Urewera Board, above n 1, at [81].

12     These declarations use different language to that offered by Mr Tuna and better reflect the conclusions in the earlier judgment.

reliance on an unlawful resolution of the first respondent; and without the annual operational plan.

3.The third respondent acted unlawfully in failing to prepare an annual operational plan for the years 2021/2022 and 2022/2023; and by supporting the huts’ demolition absent the annual operational plan.

4.The first and third respondents acted unlawfully by purporting to adopt a retrospective annual operational plan authorising the huts’ demolition.

[14]Woolford J’s interim order lapses (now relief has been determined).13

Costs

[15]              If the parties cannot agree costs, they may file submissions of not more than six pages each:

(a)Mr Tuna, on or before 5 pm, 11 July 2024.

(b)The respondents, on or before 5 pm, 25 July 2024.

……………………………..

Downs J

13     Tuna v Te Urewera Board [2022] NZHC 2924.