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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 1526
Decision Date: 13 June 2024

CaseChat Overview and Summary

The case of Tuna v Te Urewera Board concerns an application for judicial review brought by Wharehui Clyde Tuna against the Te Urewera Board, Trustees of Tuhoe – Te Uru Taumatua, and the Director-General of Conservation. The primary dispute revolves around the decisions made by these respondents regarding the management of Te Urewera, a significant area in New Zealand, and the impact of those decisions on the applicant and the broader community. The High Court of New Zealand, Rotorua Registry, presided over the case, delivering its judgment on 13 June 2024. The central legal issues in this case pertain to the relief that should be granted to the applicant, Mr. Tuna, following the court's earlier determination that certain decisions made by the respondents were unlawful. Specifically, the court needed to decide whether the relief sought by Mr. Tuna, which includes declarations and more onerous forms of relief such as preventing the removal of Crown improvements and mandating the preparation of a new management plan, should be granted.

The court addressed these issues by first examining the gravity of the errors made by the respondents and the extent of the prejudice suffered by Mr. Tuna and others. The court found that the errors were significant, particularly given the fundamental nature of the statutory provisions that were breached. The prejudice was also considerable, affecting Mr. Tuna's ability to access and enjoy Te Urewera, as well as impacting the public and the ecological integrity of the area. However, the court determined that while the errors were significant, the proposed more onerous relief, such as preventing the removal of Crown improvements and mandating a new management plan, would not serve a useful purpose and would be inappropriate. The court emphasized that those exercising functions and powers under the Act have a considerable margin of appreciation, and the role of the court is not to govern Te Urewera but to ensure legal compliance.

The court ultimately granted four declarations, confirming the unlawfulness of certain actions taken by the respondents, but declined to grant the more onerous forms of relief sought by Mr. Tuna. The court found that the declarations were fact-specific, efficacious, and capable of practical application, serving the important purpose of vindicating the rule of law. The court also noted that the declarations would provide a public enunciation of the contravention of the law. The final orders of the court included the four declarations and specified that the interim order made by Woolford J would lapse upon the determination of relief. The court further indicated that if the parties could not agree on costs, they could file submissions on the matter by specified dates.

Orders