TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY v AVERIL ROSEMARY NORMAN AND WARWICK BRUCE NORMAN [2022] NZSC 79

TŪPUNA MAUNGA O TĀMAKI MAKAURAU AUTHORITY v AVERIL ROSEMARY NORMAN ANDWARWICK BRUCE NORMAN [2022] NZSC 79 [27 June 2022]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 30/2022[2022] NZSC 79BETWEEN TŪPUNA MAUNGA O TĀMAKIMAKAURAU AUTHORITYApplicantAND AVERIL ROSEMARY NORMAN ANDWARWICK BRUCE NORMANFirst RespondentsAND AUCKLAND COUNCILSecond RespondentCourt: O'Regan, Williams and Kós JJCounsel: P T Beverley and C A Easter for ApplicantR J Hollyman QC and J W H Little for First RespondentsP M S McNamara and S J Mitchell for Second RespondentJudgment: 27 June 2022JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay the first respondents costs of $2,500.____________________________________________________________________REASONSBackground[1] The Tūpuna Maunga o Tāmaki Makaurau Authority is a co-governance entity.It administers the 14 maunga in Tāmaki Makaurau. It was established pursuant tointerim Treaty claims redress provided by Ngā Mana Whenua o Tāmaki MakaurauCollective Redress Act 2014 (the Collective Redress Act). The Authority is made upof six members representing mana whenua iwi and six members appointed byAuckland Council | Te Kaunihera o Tāmaki Makaurau.1 The maunga are held on trustfor the "common benefit of Ngā Mana Whenua o Tāmaki Makaurau and the otherpeople of Auckland".2 They are administered in accordance with the CollectiveRedress Act and the Reserve Act 1977. In the case of inconsistency between the twoActs, the Collective Redress Act prevails.3[2] The Authority decided to remove 345 mature exotic trees from Ōwairaka(commonly known as Mount Albert) and to replant the maunga in indigenous species.Local residents sought judicial review of that decision.4 Their application wasunsuccessful. On appeal to the Court of Appeal, the residents succeeded on two ofthree grounds.5 That Court set aside the Authority's decision to remove the exotictrees and the Council's granting of a resource consent for the removal.[3] The Authority now applies for leave to appeal that decision.Relevant provisions[4] The preamble and s 3 of the Collective Redress Act set out the objective andpurpose of the Act. Among other things, they recognise that maunga are taonga, andrestore to iwi and hapū the ownership and the ability to exercise mana whenua andkaitiakitanga over the taonga.[5] Section 58 of the Collective Redress Act obliges the Authority to prepare andapprove an integrated management plan (IMP) for the maunga, which sets keypriorities and policies. The maunga must be administered in accordance with thatinstrument.1 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (Collective Redress Act),s 107(1)(e) provides for one non-voting member appointed by the Crown for the first three yearsof the Authority's existence, and the option to extend on agreement between the Minister, thetrustee and the Auckland Council. There is no indication that there is currently a non-votingmember on the Authority.2 Section 41(2).3 Section 47(3).4 Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2020] NZHC 3425 (Gwyn J) [HCjudgment].5 Norman v Tūpuna Maunga o Tāmaki Makaurau Authority [2022] NZCA 30 (Cooper, Courtneyand Goddard JJ) [CA judgment].[6] Section 41 of the Reserves Act provides for the preparation, notification andimplementation of reserve management plans. Section 41 applies to any IMP.6Section 41(5) requires the administering body to give public notice before thepreparation of the management plan seeking suggestions from the public and toconsider those suggestions in preparing the draft plan. Section 41(6) also requires thatthe administering body publicly notify the draft plan, in accordance with s 119, andfollow a process to invite and consider submissions by interested parties before theplan is adopted.[7] Section 61 of the Collective Redress Act makes the Council responsible forroutine management of the maunga, which it must carry out under the direction ofthe Authority.IMP[8] The Authority prepared a single IMP of general application to all 14 maunga.The proposed IMP was publicly notified on 27 February 2016, following whichsuggestions were made by interested parties and a hearing process undertakenpursuant to the procedures in s 41 of the Reserves Act. The final form of the IMP wasapproved on 23 June 2016.[9] The IMP identifies a range of values sought to be protected and promoted inrespect of the maunga, particularly to "rekindle mana whenua connections, such asplanting of traditionally used plants, with the ecological and biodiversity values of theTūpuna Maunga."7 There are various references throughout the IMP to replanting themaunga in indigenous species and removing "inappropriate" exotic species,8 but itdoes not provide expressly for immediate large-scale tree removal generally or inrelation to Ōwairaka.6 Collective Redress Act, s 58(3).7 Tūpuna Maunga o Tāmaki Makaurau Authority Tūpuna Maunga o Tāmaki Makaurau IntegratedManagement Plan (23 June 2016) at 74.8 At 95.The Courts below[10] In the High Court, the residents argued that removal would be in breach ofss 17 and 42 of the Reserves Act which require the Authority to preserve, protect andmaintain the natural environment of the maunga, including trees and bush; that theAuthority was in any event obliged to consult with residents on the removal decision;that, consequentially, the Authority's direction to fell the trees was unlawful and thatthe Council could not validly comply with it; and that the Council had breached theResource Management Act 1991 (RMA) notification provisions by separatelygranting consent to remove the trees on a non-notified basis.9 The residents relied onvarious affidavits in support of their application for judicial review, outlining thehistory behind a variety of the exotic trees. The High Court rejected all grounds.[11] On appeal, the residents pursued the same arguments, with the exception ofthat relating to the legality of compliance by the Council with an unlawful directionof the Authority. The Court of Appeal rejected the substantive illegality ground,10 butupheld the consultation and notification grounds,11 although the reasoning in relationto the consultation ground was different to that advanced by the residents.[12] On the consultation ground, the Court did not accept that the Authority owed astand-alone duty to consult with respect to the removal decision itself. The Courtconsidered the key question was whether the removal decision should be characterisedas sufficiently important to have been the subject of consultation by express inclusionin the IMP.12 Both the IMP and the Authority's 2018–2019 Annual Operational Planmade provision for removal of exotic trees, but neither document provided forlarge-scale exotic tree removal.13 In the Court's view, such a decision was ofconsiderable significance and should have been clearly signalled in the IMP.149 HC judgment, above n 4, at [15].10 CA judgment, above n 5, at [169].11 At [213] and [279].12 At [196].13 See CA judgment, above n 5, at [206]–[207]. Section 60 of the Collective Redress Act obliges theAuthority and Council to agree on an Annual Operational Plan for each financial year. This planprovides a framework for the Council to carry out its functions under s 61.14 CA judgment, above n 5, at [209].[13] As to notification, the Court considered the resource consent should have beennotified. According to the evidence of the Council, the official who processed theapplication considered a range of other information before (essentially) coming to theview that any effects of the removal would be minor (at least in the longer term) dueto the replanting.15 An independent planning consultant was then appointed by theCouncil to make the notification decision under delegated authority. He took the sameview and granted the consent on that basis.16 The Court considered that the evidencebefore the consultant was incapable of supporting the conclusion that the effects of theremoval would not be more than minor.17 The Court noted that s 3(b) of the RMArequired consideration of "any temporary effect" when making the notificationdecision.18 The decision maker had failed to grapple with the temporary denudingeffect of the removal and replanting. There had been no assessment of the duration ofthat effect, and no conditions imposed in that respect. Nor, the Court considered, wasthe decision maker appraised of the heritage and historical significance of the exoticstands which (as noted) had been the subject of evidence in the judicial reviewapplication. The Court concluded that the consent application should have beenpublicly notified under s 95A of the RMA.19Submissions[14] The Authority advances arguments under six headings:(a) the integrity and durability of Treaty settlements is at issue since theappeal relates to the interpretation of a co-governance frameworkestablished under such settlement. The proper approach tointerpretation of settlement legislation is a matter of significance interms of the Treaty of Waitangi;(b) the integrity and durability of the Tāmaki Collective Treaty settlementis also at issue. The appeal involves questions about the ability of theAuthority to undertake projects pursuant to the "carefully designed and15 At [216]–[218].16 At [220]–[222].17 At [268].18 At [269].19 At [279].negotiated" Collective Redress Act. The Court of Appeal's decisionundermines that design and introduces non-statutory thresholds andprocesses not contained in the Collective Redress Act or theReserves Act. These include an open-ended "significance" thresholdfor projects requiring consultation and a requirement that the Authorityamend its IMP before it can proceed. This involves wastage of limitedtime and resources, creating uncertainty;(c) the Court of Appeal decision has impacts on other Treaty settlementco-governance arrangements including those in relation to theWaikato River and Urewera arrangements;(d) the introduction of the 'considerable significance' threshold makes itlikely that reserve administering bodies generally might now berequired to amend their reserve management plans under s 41 of theReserves Act leading to uncertainty and difficulty; and(e) the effect of the notification decision is that (contrary to other andrecent authority in the High Court),20 the decision maker will berequired to make notification decisions not on the basis of informationbefore them, but in anticipation that there may exist other informationnot reasonably available at the time of the decision.(f) In addition, the Authority expresses concern in relation to the (obiter)view of the Court of Appeal suggesting it was "not clear" to that Courthow the inclusion of the Reserves Act in a schedule to theConservation Act could render decisions of an independent statutorybody subject to s 4 — this in light of the large number of reservesadministered by independent reserve boards in New Zealand.[15] The Council abides in relation to leave and reserves its position with respect toa substantive appeal.20 Citing Lake Tekapo Community and Friends Inc v MacKenzie District Council [2021] NZHC 1354at [17].[16] The residents oppose leave, arguing (essentially) that the Court of Appeal'sdecision was procedural rather than substantive and applied settled principles in thatrespect. It does not therefore affect the integrity and durability of Treaty settlementsgenerally or the Tāmaki Collective settlement. Nor does it affect the administrationof other reserves in any substantive way.Analysis[17] The Court of Appeal decided the matter on a relatively narrow proceduralissue, in respect of which it adopted an orthodox approach. We do not see that thedecision affects the integrity or efficacy of the Tāmaki Collective settlement orco-governance arrangements generally.[18] We agree that the powers of and constraints upon Treaty-based co-governanceentities may in some instances give rise to Treaty issues of wider import,21 but this isa case that turns on its own facts. We are unable to see any question of principlearising. We also agree that the proper interpretation of s 4 of the Conservation Act andits effect on the Reserves Act does give rise to potential Treaty issues, but since theCourt of Appeal's observations were in obiter, (and it expressly left the point open) itis inappropriate to grant leave on that question alone. It is therefore not necessary inthe interests of justice to grant leave to appeal.22[19] The application for leave to appeal is dismissed.[20] The applicant must pay the first respondents costs of $2,500.Solicitors:Buddle Findlay, Wellington for ApplicantDuncan King Law, Auckland for First RespondentsSimpson Grierson, Auckland for Second Respondent21 Senior Courts Act 2016, s 74(3).22 Section 74(2).