NGĀI TAI KI TĀMAKI TRIBAL TRUST v MINISTER OF CONSERVATION [2017] NZCA 613

NGĀI TAI KI TĀMAKI TRIBAL TRUST v MINISTER OF CONSERVATION [2017] NZCA 613 [19 December2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA160/2017[2017] NZCA 613BETWEEN NGĀI TAI KI TĀMAKI TRIBAL TRUSTAppellantAND MINISTER OF CONSERVATIONFirst RespondentFULLERS GROUP LIMITEDSecond RespondentMOTUTAPU ISLAND RESTORATIONTRUSTThird RespondentHearing: 8 August 2017Court: Kós P, Miller and Clifford JJCounsel: F M R Cooke QC, P J Andrew and R A Siciliano for AppellantC D Tyson and C C McKay for First RespondentA F Pilditch for Second RespondentS J M Mount and A R Longdill for Third RespondentJudgment: 19 December 2017 at 4.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the first respondent costs for a standard appealon a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Ngāi Tai ki Tāmaki Tribal Trust (Ngāi Tai), the appellant iwi organisation,claims rangatiratanga over the Rangitoto and Motutapu motu (the motu) in the HaurakiGulf (the Gulf). It says it has exclusive right to statutory concessions to conductguided tours over the motu, and should have that for at least five years. It soughtjudicial review of concessions to conduct such tours granted to Fullers Group Ltd(Fullers) and the Motutapu Island Restoration Trust (MRT), the second and thirdrespondents respectively. The concessions were granted by the Director-General ofConservation under delegation from the Minister of Conservation (the Minister), thefirst respondent.[2] Fogarty J held that certain errors of law had been made in granting therespondents' concessions.1 But he held that those errors were insufficient to invalidatethe decisions, that the decisions did give effect to principles of the Treaty of Waitangi(as the Conservation Act 1982 required) and that the application for review should bedismissed. Ngāi Tai appeals.Background[3] The motu lie within the Gulf and the Rangitoto Island scenic, and MotutapuIsland recreation, reserves. They are proximate, connected by a short bridge, and arepopular destinations for recreational, scenic and cultural purposes. Many people visitthem, most travelling by Fullers' ferry services.[4] The people of Ngāi Tai have deep historical and spiritual connections with thetwo motu. A voyager in the waka Tainui, Taikehu, established himself on Motutapu.This motu he named after part of his Hawaiki homeland. His iwi has had a presencethere for 700 years or more. After the volcano on Rangitoto erupted about 600 yearsago, the chieftain Kūpapa re-established Ngāi Tai occupation of Motutapu. One1 Ngāi Tai ki Tamaki Tribal Trust v Minister of Conservation [2017] NZHC 300, [2017] NZAR 485.taonga symbolising Ngāi Tai's connection to the motu is fossilised human footprintsfixed in volcanic ash, discovered on Motutapu in recent years. This taonga is nowfound in the Auckland Museum. The motu contain numerous urupa and wāhi tapusacred to Ngāi Tai. But Ngāi Tai has been marginalised from these motu to which itis so deeply connected. Motutapu was acquired by the Crown in 1840; Rangitoto afew years later. Ngāi Tai has pursued Treaty claims in respect of those transactions,and the motu, for successive generations.[5] It is plain that Ngāi Tai's people are tangata whenua of the motu. Nor is thereany doubt the iwi holds mana whenua over the motu. Ngāi Tai's argument here,though, goes further and asserts rangatiratanga over the motu. Fogarty J held thatassertion could not be determined in these proceedings. We agree. This is judicialreview about the granting of two concessions to non-iwi interests to operate tours onthe motu. While rangatiratanga might be a relevant consideration, the legitimacy ofthe impugned decisions does not depend upon it. It was not part of the statutoryfunction of the Minister or her delegate to determine rangatiratanga. The Ngā ManaWhenua o Tāmaki Makaurau Collective Redress Act 2014 (Collective Redress Act)provides for collective redress in respect of a number of iwi forming theTāmaki Collective. It recognises shared interests and provides shared redress to thoseiwi and hapu within the Tāmaki Collective, including by vesting the motu (and otherlands) in Tūpuna Taonga o Tāmaki Makaurau Trust Ltd and vesting those back to theCrown; vesting the summit of the Rangitoto motu in fee simple to the same body; andrequiring preparation of the Tāmaki Makaurau motu plan in consultation with theTūpuna Taonga o Tāmaki Makaurau Trust. Rangatiratanga in respect of these motu isnot formally conceded by other iwi. One, Ngāti Pāoa, concedes Ngāi Tai has "primarycustomary rights" in respect of the motu. The position of other iwi is unclear on theevidence. To the extent rangatiratanga remains uncertain, judicial review — basedupon affidavit evidence only — is not a suitable mechanism for its determination.[6] Fullers has been operating ferry services to Rangitoto since 1988. It operatesregular services using fast catamaran ferries capable of conveying 300 passengers.Fullers offers a bundled ferry and tour service to Rangitoto and an unbundledpassage-only ferry service to both motu. It does not conduct tours on Motutapu.In 2013 the Department of Conservation (the Department) rebuilt the wharf onRangitoto. Before that it obtained Fullers' commitment to continue to operate toRangitoto — thereby justifying the Department's expenditure. Wharf fees charged bythe Department doubled to recover the improvement costs. Fullers also co-funded a600-metre boardwalk leading to the summit of Rangitoto and its concession conditionsrequire it to maintain Rangitoto roads and the Flaxpoint Bridge.[7] MRT was established in November 1993. It is a charitable trust. It has carriedout conservation projects to implement the Motutapu Restoration Plan prepared by theDepartment. It says its contributions are worth more than $70 million. It has, amongother things, restored natural ecosystems and European sites including theReade Homestead and historic military sites on Motutapu.[8] In December 2013 Fullers applied for a new concession to conducttractor-transport shuttle services and guided walks on both motu. In October 2014MRT applied for a concession to undertake small-scale guided walks on Motutapu.MRT's application was granted in June 2015, and Fullers' in August 2015. Each wasfor a five-year term. That was half what each had sought. But the decision-makerchose the five-year term to enable review in line with a new conservation managementplan for Tāmaki Makaurau motu (under development) and because of the impendingNgāi Tai settlement. Each concession also contained conditions calculated to protectcultural interests of iwi claiming mana whenua over the motu.[9] Ngāi Tai was itself granted a concession at about the same time, to operate asmall-scale tourist-guiding service on the motu. The term granted was nine years andeleven months.Ngāi Tai's case[10] Ngāi Tai's position has evolved during the course of the concession applicationprocess and ensuing proceedings.[11] Its original opposition to the concessions was based on three grounds: that aconcession should not be granted to undertake commercial activity on their ancestralmotu to an entity unconnected to the islands; that Ngāi Tai sought to preserveeconomic opportunities for iwi on the motu; and that Fullers' staff mispronouncedTe Reo Māori and had insufficient cultural knowledge of the motu.[12] Its pleaded case against the concessions was based on alleged errors of law bythe decision-maker. Primarily, Ngāi Tai alleged these errors:(a) erroneous determinations that Ngāi Tai had no preferential entitlementto concessions and that its economic interests were an irrelevantconsideration;(b) a failure to give effect to the Treaty principles of active protection, andto act reasonably and in good faith, by concluding that the concessiongrant to others would not remove the opportunity to the appellant toobtain similar concessions (and that the appellant should have "a periodof complete protection from competition to establish its own guidingwalk concession operation"); and(c) a failure to give sufficient weight and priority to the appellant's viewsin accordance with s 4 of the Conservation Act, the Hauraki GulfMarine Park Act 2000 (HGMP Act), the Collective Redress Act and theAuckland Conservation Management Strategy 2014–2024.[13] Written submissions before us, however, narrowed the claim considerably.These focused on two propositions:(a) that the effect of ss 7 and 8 of the HGMP Act was that concessionsshould not be granted to Fullers and MRT "over the objections of theappellant"; and(b) that to the extent the impugned decisions were found to be erroneous inlaw, they should have been set aside and remitted to the decision-makerfor reconsideration.[14] Those two propositions frame the issues for determination on this appeal.Issue 1: Do ss 7 and 8 of the HGMP Act mean that concessions should not begranted to Fullers and MRT over the objections of the appellant?[15] Mr Cooke QC's primary argument for Ngāi Tai was that ss 7 and 8 of theHGMP Act meant the concessions should not have been granted to Fullers or MRT ifNgāi Tai objected, as they did. Fogarty J did not agree. Nor, we should indicate now,do we.High Court judgment[16] The High Court judgment focussed, appropriately, on the decision of this Courtin Ngai Tahu Maori Trust Board v Director General of Conservation, also known asthe Whales Case.2 We discuss that decision in more detail below at [48]–[50] of thisjudgment. Fogarty J held that the Whales Case did not support a submission that s 4confers a preference for Māori over non-Māori applicants, all other facts being equal,"[t]here is no Māori veto."3 Rather, he noted, judges have identified a "reasonablenessin the context" test.4[17] Fogarty J held that to oust Fullers and MRT would be to interpret s 4 asrequiring the Minister to give precedence to tangata whenua over existing concessionholders "to the point of depriving those concession holders of the prospect of renewalof their concessions from time to time" despite Fullers' and MRT's sunk costs in termsof capital expenditure and labour (the latter particularly in the case of MRT).5Section 4 required the Crown to give effect to the principles of the Treaty by takingsuch action as is reasonable in the prevailing circumstances.6 Ngāi Tai was not entitledto a five-year monopoly; nor to a right of veto in respect of the granting of concessionsto others. But limitation of the term of the Fullers and MRT concessions to five yearsenabled negotiation of a partnership between concession holders and the appellant, orotherwise to accommodate the interests of iwi.2 Ngai Tahu Maori Trust Board v Director General of Conservation [1995] 3 NZLR 553 (CA)[Whales Case].3 Ngāi Tai ki Tamaki Tribal Trust v Minister of Conservation, above n 1, at [52].4 At [52].5 At [64].6 At [89].Statutory scheme[18] The starting point is s 4 of the Conservation Act:4 Act to give effect to Treaty of WaitangiThis Act shall so be interpreted and administered as to give effect tothe principles of the Treaty of Waitangi.This obligation is stated in imperative terms. It therefore differs from that containedin s 9 of the State-Owned Enterprises Act 1986 (SOE Act), enacted the previous year,that decisions under the SOE Act were not to be inconsistent with the Treaty.7 Wereturn to this distinction later.[19] We turn next to the HGMP Act. Its impetus appears to have been a need todeal with the effects that the burgeoning population of Auckland was having on theGulf's environmental and economic sustainability as well as the need to protecttangata whenua interests in the Gulf in the light of those concerns. But the disparatedecision-making bodies that had managerial powers in relation to the Gulf — whichincluded numerous local authorities — rendered difficult management of the wholeGulf. The overriding purpose of the HGMP Act was therefore to achieve a greaterdegree of cooperation between and integration of the various agencies tasked withmanaging the Gulf.[20] The HGMP Act creates the Hauraki Gulf Marine Park (the Park). The motufall within the Park. The HGMP Act provides, through ss 7 and 8, a coastal policystatement for resource management purposes. Those provisions also take effect as astatement of general policy under s 17B of the Conservation Act.87 See for example New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 524[New Zealand Maori Council (Privy Council)]; and New Zealand Maori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31 [New Zealand Maori Council (Supreme Court)]at [88].8 Hauraki Gulf Marine Park Act 2000, ss 10 and 11.[21] The connection of Māori to the gulf area is emphasised in the preamble to theAct:(3) The Gulf has a rich history of human settlement and use. The Gulf isone of the earliest places of human settlement in New Zealand and forgenerations supported and was home to tangata whenua. Whiletangata whenua have no single name for the Gulf, the names TikapaMoana and Te Moananui a Toi are recognised as referring to the Gulf.Auckland, the first seat of government, is also on its shore. Along theshores of the Gulf the changing culture and technologies can be tracedthrough places like the pa, kainga, and garden sites of antiquity onevery island, driving dams, copper and gold mines, whaling stations,timber mills, industrial sites, and grand and ordinary homes:(4) The Treaty of Waitangi was signed by tangata whenua of the HaurakiGulf both at Waitangi and on the shores of the Gulf. The Treatyprovides guarantees to both the Crown and tangata whenua and formsa basis for the protection, use, and management of the Gulf, its islands,and catchments. The Treaty continues to underpin the relationshipbetween the Crown and tangata whenua. The assembled tribes of theHauraki Gulf reaffirmed its importance to them in a statement from ahui at Motutapu Island, 14–15 November 1992 (The MotutapuAccord):[22] Sections 7 and 8 of the HGMP Act provide:7 Recognition of national significance of Hauraki Gulf(1) The interrelationship between the Hauraki Gulf, its islands, andcatchments and the ability of that interrelationship to sustain thelife-supporting capacity of the environment of the Hauraki Gulf andits islands are matters of national significance.(2) The life-supporting capacity of the environment of the Gulf and itsislands includes the capacity—(a) to provide for—(i) the historic, traditional, cultural, and spiritualrelationship of the tangata whenua of the Gulf withthe Gulf and its islands; and(ii) the social, economic, recreational, and culturalwell-being of people and communities:(b) to use the resources of the Gulf by the people andcommunities of the Gulf and New Zealand for economicactivities and recreation:(c) to maintain the soil, air, water, and ecosystems of the Gulf.8 Management of Hauraki GulfTo recognise the national significance of the Hauraki Gulf, its islands,and catchments, the objectives of the management of the HaurakiGulf, its islands, and catchments are—(a) the protection and, where appropriate, the enhancement of thelife-supporting capacity of the environment of the HaurakiGulf, its islands, and catchments:(b) the protection and, where appropriate, the enhancement of thenatural, historic, and physical resources of the Hauraki Gulf,its islands, and catchments:(c) the protection and, where appropriate, the enhancement ofthose natural, historic, and physical resources (includingkaimoana) of the Hauraki Gulf, its islands, and catchmentswith which tangata whenua have an historic, traditional,cultural, and spiritual relationship:(d) the protection of the cultural and historic associations ofpeople and communities in and around the Hauraki Gulf withits natural, historic, and physical resources:(e) the maintenance and, where appropriate, the enhancement ofthe contribution of the natural, historic, and physicalresources of the Hauraki Gulf, its islands, and catchments tothe social and economic well-being of the people andcommunities of the Hauraki Gulf and New Zealand:(f) the maintenance and, where appropriate, the enhancement ofthe natural, historic, and physical resources of the HaurakiGulf, its islands, and catchments, which contribute to therecreation and enjoyment of the Hauraki Gulf for the peopleand communities of the Hauraki Gulf and New Zealand.[23] The following provisions of the HGMP Act are relevant also.[24] Section 10(1), which provides:10 Creation of New Zealand coastal policy statement by thisAct(1) For the coastal environment of the Hauraki Gulf, sections 7and 8 must be treated as a New Zealand coastal policystatement issued under the Resource Management Act 1991.[25] Section 11(1), which provides:11 Statements of general policy under Conservation Act 1987and Acts in Schedule 1 of that Act(1) For the purposes of each of the following Acts for the HaurakiGulf, sections 7 and 8 have the same effect as a statement ofgeneral policy approved under the following specifiedsections:(g) Conservation Act 1987, section 17B.[26] Section 13, which provides:13 Obligation to have particular regard to sections 7 and 8Except as provided in sections 9 to 12, in order to achieve the purposeof this Act, all persons exercising powers or carrying out functions forthe Hauraki Gulf under any Act specified in Schedule 1 must, inaddition to any other requirement specified in those Acts for theexercise of that power or the carrying out of that function, haveparticular regard to the provisions of sections 7 and 8.[27] Section 32(c):32 Purposes of Hauraki Gulf Marine ParkThe purposes of the Hauraki Gulf Marine Park are—(c) to recognise and have particular regard to the historic,traditional, cultural, and spiritual relationship oftangata whenua with the Hauraki Gulf, its islands andcoastal areas, and the natural and historic resources ofthe Park:[28] And s 37(1):37 Effect of Park(1) Any person holding, controlling, or administering land,foreshore, seabed, marine reserve, a taiapure-local fishery, ora mataitai reserve in the Hauraki Gulf Marine Park mustrecognise and give effect to the purpose of the Park.Submissions[29] Ngāi Tai says the HGMP Act binds the statutory decision-maker in two ways.First, s 11(1)(g) of the HGMP Act provides that ss 7 and 8 have the effect of a statementof general policy under the Conservation Act. Section 17B of the Conservation Actprovides that the Minister may approve statements of general policy for theimplementation of legislative purposes. Ngāi Tai points to recent statements from theSupreme Court as to the importance of these statements under the Conservation Act.9It says the decision-maker was bound to apply ss 7 and 8 of the HGMP Act as a generalpolicy statement. And that she failed to do so. It points to the High Court decision inThe Rangitoto Island Bach Community Assoc Inc v Director-General ofConservation.10 In that case the Director-General sought to evict occupiers frombaches that remained on Rangitoto that had been established from the 1930s.Harrison J concluded the decision maker failed to apply the HGMP Act, in partbecause the decision failed to apply the deemed general policy established by theHGMP Act. 11[30] Secondly, Ngāi Tai says s 13 of the HGMP Act is engaged, which imports amandatory obligation to have regard to the principles in ss 7 and 8. Further, s 37(1)requires recognition to be given to the purpose of the Act when making relevantdecisions. Harrison J in Rangitoto Island Bach Community concluded, albeit underthe Reserves Act 1977, that the HGMPA had the effect of transforming ss 7 and 8 ofthat Act into statements of general policy that the Minister must comply with.12[31] The two concession decisions (the decisions) provide identically as to theHGMP Act:Hauraki Gulf Marine Park Act 2000Rangitoto and Motutapu Islands fall within the boundaries of the Hauraki GulfMarine Park as established by s 33 of the Hauraki Gulf Marine Park Act 2000.9 Hawkes Bay Regional Investment Co Ltd v Royal Forest and Bird Protection Society of NewZealand Inc [2017] NZSC 106, [2017] 1 NZLR 1041 at [130]–[131].10 Rangitoto Island Bach Community Assoc Inc v Director-General of Conservation [2006] NZRMA376 (HC).11 At [88].12 At [91].The Act has no specific reference to either Rangitoto and Motutapu Islands orto the concessions regime.The previous report noted that "after having regard to the provisions ofsections 7 and 8 of the Act, it is our opinion that the proposal is consistent withthe purposes of the Act, as contract conditions will ensure that any adverseeffects are adequately avoided, remedied or mitigated. The proposal is alsoconsistent with the purposes of the Hauraki Gulf Marine Park as set out insection 32 of the Act."This activity provides methods of the public to enjoy Rangitoto and MotutapuIslands in accordance with subsection (b). Analysis of the activities, whenfirst granted and also through the re-issue process, have noted that the activitycan be appropriately managed to avoid, remedy or mitigate any adverseeffects. One of the main concerns identified through Iwi consultation is therecognition of the importance of the Islands to tangata whenua, and ensuringthat any cultural or historical interpretation undertaken by the Concessionaireis sensitive to this history and is an accurate respectful representation. Thesematters will be further considered as the Treaty of Waitangi settlement processprogresses, but can also be addressed through special conditions to thecontract.It is considered that the activity remains consistent with the purposes of theHauraki Gulf Marine Park and with the Hauraki Gulf Marine Park Act 2000.[32] Ngāi Tai says this analysis does not meet the statutory requirements of theHGMP Act. The decisions provide that the concession-holder must be sensitive to therelevant history, and provide an accurate and respectful representation, but does nomore. The decisions do not treat as relevant the question of who should be grantedthe concession and the appropriateness of granting concessions to third parties overthe objection of the customary owner. The decisions simply assume the concessionswill be granted without any consideration of the deemed policy. Ngāi Tai says that is"clearly a significant error".[33] Ngāi Tai also says that if the HGMP Act were applied properly it would bewrong to grant concessions to Fullers or MRT. Ngāi Tai says the principles inss 7 and 8 involve the maintenance and enhancement of the relationships tangatawhenua have with the motu. Ngāi Tai also has the roles of manaakitanga (authorityand responsibility to host and care for visitors) and kaitiaki (guardianship). The motuare its ancestral lands for which it has kaitiaki and consequently tikanga dictates theymust exercise manaakitanga and to do so necessitates a right of objection.[34] But Ngāi Tai asserts more than simply a right of objection. It says bymanaakitanga they have a customary right to be responsible for introducing visitors toits ancestral lands. Ngāi Tai should be allowed to reap the benefits of the commercialreturn generated from such visitors. To allow others to profit from those activitiesbreaches the principles articulated in the HGMP Act. It is consistent with thoseprinciples, of enhancing and giving effect to them, to allow the concessionary activityto be undertaken by the people of Ngāi Tai. In effect, a power of veto.[35] Ngāi Tai also relies on the Whales Case to submit Fogarty J erred bymisunderstanding the full extent of the legal requirements placed on thedecision-maker here. In the Whales Case the reason for declining to adopt Ngāi Tahu'sclaim to a right of veto was the absence of customary rights of property in the whalessubject to the whale-watching permits being issued. In this case though Ngāi Tai doeshave such customary rights. Consequently, Ngāi Tai, says, it is in a different andstronger position than Ngāi Tahu was in the Whales Case.Analysis[36] We will start with the HGMP Act, as the phrasing of the agreed issue requires.But we will need soon enough to consider the broader implications of s 4 of theConservation Act also.13[37] The effect of s 11(1)(g) of the HGMP Act is that the principles and objectivesset out in ss 7 and 8 of that Act have the same effect as a statement of general policyestablished under the Conservation Act. By s 17A of the latter Act theDirector-General is obliged to "administer and manage all conservation areas" inaccordance with such statements. The importance of that duty was reinforced by theSupreme Court in Hawkes Bay Regional Investment Co Ltd v Royal Forest and BirdProtection Society of New Zealand Inc — concerning the reclassification ofconservation land.1413 See [40]–[49] of this judgment.14 Hawkes Bay Regional Investment Co Ltd v Royal Forest and Bird Protection Society of NewZealand Inc, above n 9, at [130].[38] The HGMP Act recognises the national significance of the Gulf and motutherein and the need to sustain the capacity of the Gulf and its motu to provide for boththe interests of tangata whenua and the interests (including social, environmental andrecreational) of all persons. Section 7(2)(a) necessarily therefore contemplates abalancing exercise between those interests. Section 7(2)(b) then reinforces the breadthof interests involved, referring generally to people in communities again and theireconomic activities and recreational interests. Such terms might be thought toreinforce general rights of access.[39] In that respect ss 17 and 19 of the Reserves Act are also relevant. Motutapu isa Crown-owned recreation reserve; Rangitoto (apart from its summit) is aCrown-owned scenic reserve. The summit of Rangitoto is vested in the trustees of theTupuna Taonga o Tāmaki Makaurau Trust as a discrete scenic reserve by virtue ofs 70(2) of the Collective Redress Act. But it is to be administered by the Crown forthe purposes of the Reserves Act "as if the reserve were vested in the Crown".15 Inthe case of scenic reserves, s 19(1)(a) of the Reserves Act provides that such reservesare established "for the purpose of protecting and preserving in perpetuity for theintrinsic worth and for the benefit, enjoyment, and use of the public".Similar provision exists by s 17(1) of the Reserves Act in the case of recreationreserves (here, Motutapu): for the purpose of providing areas for the recreation and sporting activitiesand the physical welfare and enjoyment of the public, and for the protectionof the natural environment and beauty of the countryside.[40] Turning to s 8 of the HGMP Act, a number of relevant objectives are specified.Broadly, these objectives are consistent with the principles established in s 7, the focusbeing the protection (and where appropriate enhancement) of: the physicalenvironment; the cultural and historical associations of people and communities (notbeing confined to tangata whenua); and resources contributing to the social, economicand recreational wellbeing and enjoyment of peoples and communities of the Gulf andof New Zealand.15 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 70(4).[41] Self-evidently the statutory scheme requires the Director-General, as part ofthe concession process, to balance these interests to the extent they compete.It requires the Director-General to adjust conditions, including as to duration, to bestachieve a decision that is consistent with the principles stated in s 7 and the objectivesin s 8. In Sanford Ltd v New Zealand Recreational Fishing Council Inc, this Courtobserved that the HGMP Act provides a "series of broadly expressed factors in relationto a range of decisions that may or may not have much connection with thosefactors".16 It observed that:17 where the decision-maker is required to have particular regard to a numberof factors of varying relevance, which are expressed as general purposes ratherthan specific criteria, the decision-maker must be permitted to discount thosewhich are not relevant and give varying weight to those that are. In thosecircumstances, the requirement to have particular regard requires thedecision-maker to satisfy himself or herself that the decision meets those ofthe purposes which are of most relevance, to the extent that that can beachieved in harmony with other relevant considerations applying to thedecision.[42] We note Ngāi Tai's reliance on the High Court decision in Rangitoto IslandBach Community as indicative of a greater required level of consideration of theHGMP Act.18 As the Crown submits, however, in that case the decision-maker hadnot referred to the HGMP Act at all in the decision-making process. No regard hadbeen paid at all to the elevated interests of the bach holders as a relevant interest groupin terms of that Act. As the Crown also submits, that case does make the broader pointthat the HGMP Act contemplates a balancing of diverse interests and values in thedecision-making process under the Conservation Act. It does not lend support to theproposition that Ngāi Tai has something approaching a right of veto, thus alteringfundamentally that balancing exercise.[43] Ngāi Tai complains the decision-maker failed to consider the purposes of theHGMP Act articulated in ss 7 and 8 of that Act in making the Decisions. We acceptthe Crown's submission that the question for the decision-maker in relation to theHGMP Act was whether the granting of the concessions to Fullers and MRT wasconsistent with the principles of the HGMP Act given those entities' services also16 Sanford Ltd v New Zealand Recreational Fishing Council Inc [2008] NZCA 160 at [99].17 At [99].18 Rangitoto Island Bach Community Assoc Inc v Director-General of Conservation, above n 10.advanced the use and enjoyment of the reserves. The Decisions cited and quoted aprevious report stating: after having regard to the provisions of sections 7 and 8 of the Act, it is ouropinion that the proposal is consistent with the purposes of the Act, as contractconditions will ensure that any adverse effects are adequately avoided,remedied or mitigated. The proposal is also consistent with the purposes ofthe Hauraki Gulf Marine Park as set out in section 32 of the Act.[44] The reasons given in relation to ss 7 and 8 are not extensive. But in our viewthey are sufficient. They evidence the decision-maker having turned her mind to thepurposes of the HGMP Act and balanced the relevant competing interests. What wasnot required was an item-by-item analysis of each item in ss 7 and 8. Indeed, thereport considers, at length, Ngāi Tai's unique interests in the motu and, ultimately,provides it with a degree of preference over both Fullers and MRT. It therefore cannotbe said that the decision-maker failed to have regard to ss 7 and 8. Nor do we inferss 7 and 8 conferring anything like a right on the part of iwi to issue an overridingobjection (or veto). The breadth of access rights contemplated by those provisions areinconsistent with such a construction.[45] In applying ss 7 and 8, and in reaching what must be a compromise betweencompeting considerations, the decision-maker needed also to comply with theobligations in s 4 of the Conservation Act, to interpret and administer the Act in sucha way as to give effect to the principles of the Treaty. This aspect formed a significantpart of Ngāi Tai's argument. Significantly, however, this is not a case in which theCrown proposes transfer of an asset. Rather it involves a temporary concession tocontinue to undertake an activity on recreation or scenic reserve land for a period ofjust five years, to enable due consideration of two significant future events: theintended inner motu conservation management plan, and the forthcoming Ngāi Taisettlement. Limited consenting for an existing activity for so short a period does notin our view impair materially the Crown's capacity to take reasonable action in thefuture to comply with its Treaty obligations.1919 New Zealand Maori Council (Privy Council), above n 7; and New Zealand Maori Council(Supreme Court), above n 7.[46] In particular, the principle of active protection, the most engaged of the broadTreaty principles applicable here, is not impaired by a short-term continuation of thestatus quo. This aspect was specifically considered by the decision-maker. Afternoting the submission made on active protection by Ngāi Tai, she observed that thegranting of the concession would not remove the opportunity for Ngāi Tai to pursuefurther concessions and would allow for development of the inner motu conservationmanagement plan to clarify and protect the interests of tangata whenua of the motu.Fogarty J found (and we agree) that the decision-maker acted reasonably and in goodfaith, and sought properly to inform herself of relevant affected interests.20Consultation and briefing as to relevant matters followed a robust process.Its adequacy is not the subject of challenge before us. It could not be said thereforethat the Crown's actions were unreasonable in the circumstances prevailing at the timeof the decision.[47] Significantly those circumstances involve the prospect of change, a factor thatdirectly contributed to Fullers and MRT being granted five-year concessions whenthey had sought ten years. The inner motu conservation management plan is still tobe developed. The present redress in respect of the motu is shared redress reflectingshared interests. The Crown continues to own the motu as reserves, barring thesummit of Rangitoto, but that continues to be administered, controlled and managedby the Crown as if it were a scenic reserve. As to the Ngāi Tai deed of settlement, itwas not in force at the time the concessions were granted. It remains today conditionalupon Parliamentary approval. Significantly, as the Crown submits, none of theproposed redress goes remotely near to conferring on Ngāi Tai such rights of objectionthat concessions should not be granted to third parties where Ngāi Tai does not approveof them.[48] The Whales Case was relied on by Ngāi Tai.21 But we think too much wasmade of it. In that case a Ngāi Tahu entity had pioneered whale watching from boatsoff the Kaikōura coast. It obtained a permit for that activity from the Director-Generalin 1988. In 1992 the Director-General notified his intent to issue a second competingpermit. Ngāi Tahu then asserted exclusive rights to operate commercial20 Ngāi Tai ki Tamaki Tribal Trust v Minister of Conservation, above n 1, at [107].21 Whales Case, above n 2.whale-watching operations. It claimed that no permit might be granted without itsconsent. Ultimately, Ngāi Tahu qualified that claim by accepting that such consentcould not be unreasonably withheld.22 While Ngāi Tahu prevailed on the basis thatthe decision-maker had failed to weigh Ngāi Tahu's concerns in the overalldecision-making process, its more expansive veto claim was rejected by this Court.The analysis in the Whales Case depended on the application of s 4 of theConservation Act, not ss 7 and 8 of the HGMP Act. Treaty principles were relevant,and were not to be approached narrowly. But as this Court put it:23However liberally Māori customary title and treaty rights may be construed,tourism and whale watching are remote from anything in fact contemplatedby the original parties to the treaty. Ngāi Tahu's claim to a veto must berejected.[49] What was paramount in the Court's analysis was the overall conservationobjective. A residual factor of weight was a duty to recognise the special interest thatNgāi Tahu had developed in the use of those coastal waters. That reflected theinvestment Ngāi Tahu had put into the enterprise. The Court recognised that a periodof protection sufficient to justify the development expenditure incurred by Ngāi Tahumight be an applicable consequence.24 The Court concluded:25In the light of the positive duty there recognised [in Te Rūnanga o WharekauriRekohu Inc v Attorney-General],[26] and of the statutory incorporation of theprinciples of the treaty in the conservation legislation, it is plain that on theparticular facts of this case a reasonable treaty partner would not restrictconsideration of Ngai Tahu interests to mere matters of procedure. The iwiare in a different position in substance and on the merits from other possibleapplicants for permits. Subject to the overriding conservation considerationsthat we have mentioned and to the quality of service offered, Ngāi Tahu areentitled to a reasonable degree of preference.Because the Director-General had not approached matters in that way, and had notadequately weighed Ngāi Tahu's concerns and interests in his decision-making topermit a competing operation, the matter was referred back to the Director-Generalfor reconsideration.22 At 559.23 At 560.24 At 560.25 At 561–562 (footnote added).26 Te Rūnanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) at 304.[50] In our view the Whales Case has three, significant, distinguishing features fromthe present case. First, here, Ngāi Tai's interests in ancestral lands is stronger thanNgāi Tahu's was to operate a whale-watching business without competition. In thatsense the claim here is a stronger one. Secondly, however, s 4 was squarely the basisof the appeal in the Whales Case — that is, that the decision-maker there failed to giveeffect to the principles of the Treaty. Ngāi Tai's claim here is premised on anapplication of ss 7 and 8 of the HGMP Act and the decision-maker's allegednon-compliance with those provisions. While s 4 lies in the background to their claim,Ngāi Tai's complaint on appeal was that both the decision-maker and High Court failedto properly consider the significance of the HGMP Act. That is a claim of afundamentally different sort to that pursued in the Whales Case. As we concludebelow, we are not satisfied any error can be demonstrated in either Fogarty J'sjudgment or the impugned Decisions and certainly none that can demonstrate theprinciples of the Treaty were not given effect to. Thirdly, in the Whales Case it wassignificant that Ngāi Tahu had incurred substantial sunk costs in setting up thewhale-watching business. Ngāi Tahu had pioneered it. As this Court noted there, onthose particular facts, the extent of that expenditure might justify a period of protectionfrom competition. That is not the situation in which Ngāi Tai finds itself in. The otherconcession-holders have significant sunk investment in works on the motu, whereasNgāi Tai does not, at least in a direct economic sense. And Ngāi Tai has been given adegree of preference over Fullers and MRT in the terms and duration of its concession.[51] Ngāi Tai also placed much significance in the tikanga concept ofmanaakitanga.27 That principle was considered by the decision-maker in this case.But she expressed caution about "setting standards which effectively exclude all otherproviders of visitor experiences".[52] While there is certainly authority as to the enforceability of principles oftikanga,28 we are not satisfied that in the present case the concept of manaakitanga27 See [33]-[34] above.28 Public Trustee v Loasby (1908) 27 NZLR 801 (SC) (concluding that reasonable costs for goodssupplied for a tangi ought to be paid in accordance with Māori custom out of the deceased'spersonal estate); and Baldick v Jackson (1910) 30 NZLR 343 (SC) (concluding an English statutecould not apply in New Zealand because it was inconsistent with Māori custom). See alsoTakamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.assists us in determining whether Fogarty J erred in declining the application.First, manaakitanga cannot trump the express rights of access to and use of the Gulfenshrined in both the HGMP Act and Reserves Act. The HGMP Act provides for abalancing between a host of interests. As set out in s 7, those interests include bothtangata whenua interests as well as those of the general public to the "social, economic,recreational and cultural well-being" of those who use the Gulf. Manaakitanga,undoubtedly of substantial importance, may well be of significance in adecision-maker's decision, but it cannot displace all other considerations. In terms ofthe present issue, it cannot be inferred from the relevant provisions of the HGMP Actthat manaakitanga was to be applied here so as to oust the express rights of access anduse that the HGMP Act (and indeed the Reserves Act) assure. That would be to elevatethat principle beyond statute. Secondly, we are not persuaded on the evidence beforeus that manaakitanga has been so transgressed that it can be said, in terms of s 4 of theConservation Act, that the principle of active protection requires its enforcement tothe extent that other forms of visitor experience (most obviously the guided tours)must be excluded. As we have already noted, the granting of the concessions to Fullersand MRT does not exclude Ngāi Tai from undertaking its own guided tours.Conclusion[53] We answer Issue 1, "No". Neither the provisions of the HGMP Act nor thoseof the Conservation Act, severally or in combination, required Fullers and MRT'sapplications be declined in the face of objections by Ngāi Tai.Issue 2: To the extent the impugned decisions were found to have erred in law,should they have been set aside and remitted to the decision-maker forreconsideration?[54] This was very much a secondary argument for Ngāi Tai. Fogarty J found thedecision-maker erred in law in certain respects. The Crown did not cross-appeal,although it sought nonetheless to argue it had not erred. We are not prepared to differfrom the Judge's conclusion without challenge by way of cross-appeal.[55] The Judge did not remit the decision for reconsideration. The Crown says hewas right, and Ngāi Tai says he was wrong, not to do so.High Court judgment[56] Fogarty J concluded that the decision-maker made errors of law when shedetermined there was no basis for preferential entitlement in favour of Ngāi Tai andthat economic benefits to it were irrelevancies.29 But, despite those errors, thedecisions gave effect to the principles of the Treaty. In the Judge's view that wassufficient to decline the application and the question of relief therefore did not arise.Submissions[57] Ngāi Tai submits the High Court erroneously declined relief having located anerror of law. The High Court appeared to be of the view the same result would followif the decision-maker had properly understood the legal requirements and obligationsunder the principles of the Treaty. Declining relief is only appropriate if the sameresult was inevitable and that cannot be established in this case.[58] Ngāi Tai submits, further, that once an error of law is established and anapplicant suffers substantial prejudice the discretion to decline relief is very limited.Ngāi Tai point to this Court's decision in Air Nelson Ltd v Minister of Transport inwhich the Court stated that where a reviewable error is established there must be"extremely strong" reasons to decline to grant relief.30 No such reasons are presenthere.Analysis[59] Relief in a judicial review application is a matter of judicial discretion.31 TheSupreme Court in Ririnui v Landcorp Farming Ltd stated that courts will generallyconsider the granting of some form of relief appropriate where a reviewable error isdetected.32 But the residual discretion to decline a remedy remains.[60] Ngāi Tai's reliance on Air Nelson Ltd v Minister of Transport does not assist it.The statement therein that "extremely strong" grounds are required before a court will29 Ngāi Tai ki Tamaki Tribal Trust v Minister of Conservation, above n 1, at [103].30 Air Nelson Ltd v Minister of Transport [2008] NZAR 139 (CA) at [60].31 Judicature Amendment Act 1972, s 4(3).32 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112] per Elias CJ andArnold J.decline to grant relief has been qualified by this Court. In Rees v Firth it pointed outthat in Air Nelson Ltd v Minister of Transport the Court had in mind situations where"substantial prejudice" to the applicant was demonstrated.33 In Rees v Firth, too,although an error of law was demonstrated a remedy was declined.34 In Tauber vCommissioner of Inland Review this Court affirmed that view and noted a subtlerapproach than that articulated in Air Nelson Ltd v Minister of Transport "is likely tobe appropriate in many cases".35[61] Three features of the case at hand are particularly relevant to the question ofwhether this Court should, in its discretion, grant relief. First, those errors identifiedin the decisions are, in the context of the whole of each decision, minor. Thedecision-maker had correctly stated the relevance of Ngāi Tai's interest in the motuand that is reflected in the relatively generous concession terms afforded to it incomparison to the other concession holders. It cannot be said Ngāi Tai wasdisadvantaged vis-à-vis the other concession holders. Secondly, Ngāi Tai'sfundamental challenge, based upon a perception of priority given in the HGMP Act,in combination with s 4 of the Conservation Act, has failed. Thirdly, Ngāi Tai wouldnot suffer "substantial prejudice" if the impugned Decisions are allowed to stand.Rather, Fullers and MRT would suffer significant prejudice if what are alreadyshort-term, interim concessions are quashed and their activities on the motu compelledto cease. Prejudice to innocent third parties is a particularly relevant consideration inthe exercise of a reviewing court's decision whether to grant a remedy.36Conclusion[62] We are not persuaded the Judge erred in declining relief.Result[63] The appeal is dismissed.33 Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408 at [48].34 At [48].35 Tauber v Commissioner of Inland Review [2012] NZCA 411, [2012] 3 NZLR 549 at [91].36 Ririnui v Landcorp Farming Ltd, above n 31, at [132].[64] The appellant must pay the first respondent costs for a standard appeal on aband A basis and usual disbursements. No order for costs is made in respect of theremaining respondents.Solicitors:McCaw Lewis, Hamilton for AppellantCrown Law Office, Wellington for First RespondentCook Morris Quinn, Auckland for Second RespondentAlderton MacKenzie, Auckland for Third Respondent