Tuna v Te Urewera Board - [2022] NZHC 2924

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-105

[2022] NZHC 2924

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

IN THE MATTER

of an application for judicial review

BETWEEN

WHARENUI CLYDE TUNA

Applicant

AND

TE UREWERA BOARD, being the board established under s 16 of Te Urewera Act 2014

First Respondent

TRUSTEES OF TŪHOE – TE URU

TAUMATUA, being the trust referred to as Tuhoe Te Uru Taumatua in Te Urewera Act Second Respondent

THE DIRECTOR-GENERAL OF CONSERVATION

Third Respondent

Teleconference: 7 and 8 November 2022

Appearances:

W Aldred and TWR Lynskey for Applicant

P Beverley for First and Second Respondents J Gough for Third Respondent

Judgment:

8 November 2022

JUDGMENT OF WOOLFORD J

[Interim relief]

This judgment was delivered by me on Tuesday, 8 November 2022 at 4:45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

TUNA v TE UREWERA BOARD [2022] NZHC 2924 [8 November 2022]

[1] The applicant, Wharenui Clyde Tuna’s whakapapa connects him to all the hapū of Waimana and other hapū across Te Urewera. He has a relationship with Te Urewera that transcends the physical contemporary world, a relationship that is founded in past, present and future generational connection with Te Urewera. Te Urewera forms part of his spiritual identity, it brings peace and comfort, it brings spiritual enlightenment and contentedness.

[2] The applicant objects to the current what he says is hasty destruction by fire of the hut network throughout Te Urewera by the second respondent, Tūhoe – Te Uru Taumatua (TUT), the operational entity of the first respondent, Te Urewera Board (TUB). He seeks an interim order requiring the second respondent immediately to cease its programme of destruction of listed huts pending final disposition of this proceeding. The application is made on a without notice basis because of its urgency, but the respondents were served with the proceeding to allow them to have some input.

[3] I held telephone conferences with counsel representing all parties on 7 and 8 November 2022. Counsel for the first and second respondents advised the Court that he had instructions to strongly resist any interim order but was not in a position to give an undertaking to cease the programme of the demolition or removal of the huts pending a hearing of the application for an interim order. Counsel for the third respondent agreed that the first and second respondents should be heard before any interim orders were to be made.

[4] Counsel for the first and second respondents has advised the Court that the parties should be in a position to propose a timetable for the hearing of the application for an interim order by 18 November 2022. However, the issue of protection of the applicant’s position remains as an undertaking is not available. It is therefore necessary for me to review the application to determine whether I should grant an interim interim order to…

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: [2022] NZHC 2924
Decision Date: 8 November 2022

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application for judicial review by Wharenui Clyde Tuna, a member of the Tūhoe hapū with a deep spiritual and cultural connection to Te Urewera. Tuna sought an interim order to halt the destruction of a network of huts in Te Urewera by Tūhoe – Te Uru Taumatua and the Te Urewera Board, arguing that the destruction process was unlawful and contrary to the principles of Te Urewera Act 2014. The case involved the alleged failure to follow proper process, lack of consultation, and the absence of an annual operational plan as required by the Act.

The legal issues centred around whether the Te Urewera Board and Tūhoe – Te Uru Taumatua had adhered to the statutory requirements for the management and governance of Te Urewera, particularly regarding the decommissioning of Department of Conservation (DOC) structures. The court had to determine if there was a sufficient likelihood that the applicant would succeed in his substantive claim and whether an interim order was necessary to preserve his position pending the final determination of the case.

The court found that Tuna's case had merit, particularly given the absence of an annual operational plan and the potential for significant harm to both cultural and biodiversity interests. The court emphasised the necessity to preserve Tuna's position, noting the irreversible nature of the hut destruction and the lack of demonstrated disadvantage in halting the process pending further hearings. The court granted an interim order requiring the immediate cessation of the hut demolition programme and mandated the provision of a complete list of demolished or removed huts.

The final orders included an interim order for the first and second respondents to cease the destruction of the huts and to provide a complete list of those already destroyed or removed by a specified date. This decision underscored the importance of procedural compliance and the need to protect cultural and environmental interests in the management of Te Urewera.

Orders