TONI COLIN REIHANA V DIRECTOR-GENERAL OF CONSERVATION CA CA46/05

TONI COLIN REIHANA V DIRECTOR-GENERAL OF CONSERVATION CA CA46/05 29 March 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA46/05BETWEEN TONI COLIN REIHANA Appellant AND DIRECTOR-GENERAL OF CONSERVATION Respondent Hearing: 7 March 2006 Court: William Young P, Robertson and Allan JJ Counsel: Appellant in person B H Arthur for Respondent Judgment: 29 March 2006JUDGMENT OF THE COURT A Appeal allowed in part. Second cause of action remitted to the High Court at Invercargill for further consideration. B Costs are reserved.____________________________________________________________________REASONS(Given by Robertson J)Background[1] This is an appeal from a decision of Doogue J delivered in the High Court at Invercargill on 18 March 2005 when he struck out judicial review proceedings inwhich Mr Reihana was the plaintiff. The proceedings were commenced on 16 February 2005 pursuant to s 4 of the Judicature Amendment Act 1972. [2] There were two causes of action. First:The respondent (as Southern Islands Conservator Mr. Greg Lind) is contended in error of law to have failed to take account of all relevant considerations when offering the "consultation" required by s 48(1)(d) of Conservation Act 1987, when amendments to the Titi (Muttonbird) Regulations 1978 are proposed to be made and, because this decision offends what s 48(1)(d) specifically prescribes, is contended substantive ultra vires and, that the decision complained of is in error.Secondly:The respondent is contended to have acted irrationally and illogically in reaching the unreasonable decision complained of as per respondent's correspondence of 17/09/04.[3] There was a simultaneous application for interim relief to prevent the respondent from consulting with anyone other than the Maori owners of the Titi Islands in respect of any regulations that might be promulgated under s 48(1)(d) of the Conservation Act 1987. [4] Mr Reihana is one of the Maori owners whose position was guaranteed under the original Deed of Cession entered into in 1864. The Deed provided for a "full and final sale and conveyance and surrender of land" (including the Islands in question) by the Chiefs and people of the Ngai Tahu and Ngai Mamoe Tribes to Victoria Queen of England and her heirs. The Deed also provides that the lands are reserved for those Chiefs and people "under the protection and management of the Governor". [5] Over the years, various statutory arrangements have been put in place pursuant to this duty. Although the Deed of Cession did not contain any particular requirement for consultation, it has been provided for in various statutory forms. The current formulation is s 48(1)(d) of the Conservation Act 1987, which provides:The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes: (d) In fulfilment of the conditions of the deed of cession of Stewart Island dated the 29 th day of June 1864, and after consultation with the Maori owners, securing to the Maori the Titi Islands and other islands adjacent to Stewart Island mentioned in the deed, and protecting the islands from trespassers, and the birds frequenting them from destruction.[6] In the High Court, Mr Reihana argued that those provisions meant that the respondent was precluded from consulting with anyone other than the Maori owners of the Titi Islands when promulgating regulations under this provision. [7] The respondent applied to strike out the substantive proceedings on the basis that they did not disclose any reasonable case. The interlocutory relief and the strike out motion were heard together on 17 March 2005. The following day Doogue J refused interim relief and struck out the substantive proceedings. He noted: There is nothing in s 48(1)(d) that limits the Minister of Conservation or the defendant from consulting with anyone in respect to the Titi Islands. The only limitation contained within s 48(1)(d) is that no regulations relating to the Titi Islands and the other islands adjacent to Stewart Island mentioned in the deed of 29 June 1864 shall be made without consultation with the Maori owners. On any approach to the section it is quite apparent that its intention is not to limit or control the powers of the defendant or the Minister of Conservation but to protect the Maori owners of the islands to ensure that in every instance before any changes are made to the regulations affecting the islands that the Maori owners are consulted. The Court could not possibly interpret the section as excluding consultation with anyone else be they Maori or otherwise. There are simply no words of limitation within the section except those requiring consultation with the Maori owners. It is not for the Court to enlarge upon the language of the legislature in the manner that Mr Reihana seeks in this litigation any more than in his litigation before Panckhurst J.[8] There was an immediate filing of an appeal in this Court seeking an order "over-ruling/quashing the 18 March 2005 decision of Justice Doogue". [9] On 31 March 2005, there was a further application made to this Court numbered CA47/05, which was described as "an application for a declaratory measure in reliance on s 8(2)(a) of the Judicature Amendment Act 1972". This matter was set down in a miscellaneous motions list for Monday 16 May 2005.[10] It transpires that, at about the same time, Mr Reihana filed an identical document in the Court at Invercargill which was given an initial call date in May 2005 and a hearing date in June 2005. [11] When the dual filing was flushed out, various memoranda were lodged. In April Mr Reihana filed and served a Notice of Discontinuance in the Court of Appeal in respect of the CA47/05 matter. It was accordingly treated as disposed of although the question of costs was reserved for consideration as part of the substantive appeal. [12] Therefore, before this Court now is an appeal from the decisions of Doogue J of 18 March 2005 and the issue of costs in respect of the earlier case in this Court that was discontinued.The appellant's position[13] Before us Mr Reihana contended that Doogue J had failed to give s 48(1)(d) a plain and literal meaning and to have proper regard to its historical antecedents and the practical requirements associated with its administration. [14] He further argued that the Judge had insufficient regard to the principles of the Treaty of Waitangi and their influence on this area of decision making.The respondent's position[15] Ms Arthur, for the Crown, submitted that, although the statutory provision clearly required consultation with the Maori owners, the wording did not preclude consultation with others including Rakiura Maori and Te Runanga o Ngai Tahu. She submitted that the Director-General correctly interpreted the provision by noting that s 48(1)(d) did not limit or control the powers of the Minister or Director-General, but guaranteed input from the Maori owners. [16] Ms Arthur provided a comprehensive overview of the regulatory framework over many decades and submitted that, although there was a clear obligation toconsult the Maori owners, there never had been a restriction upon those with whom there should be consultation.Discussion[17] This case is imbued with Mr Reihana's passion arising from his shared ownership of these Islands. [18] Doogue J was undoubtedly correct in his conclusion that the words of s 48(1)(d) do not, in and of themselves, place a straightjacket on consultation. Nonetheless, any consultation which does occur needs to be assessed in light of the history of these Islands and considering the Crown's role which is fundamentally a protective responsibility arising from the initial Deed of Cession. That duty is to be assessed in relation to the principles of the Treaty of Waitangi. [19] Although it is not directly the issue before us, in normal administrative law terms any consultation which the Director-General undertakes needs to be sensitive to the obligation to the Maori owners. They have a special position which cannot be ignored. Any other consultation must be consonant with the Maori owners' position. [20] While in no way differing from the view reached by Doogue J as to the meaning of s 48(1)(d), we are left with residual concern as to whether all the matters which could be encompassed in Mr Reihana's second cause of action as enumerated in [2] have been adjudicated upon. [21] For that reason alone we are of the view that this appeal must be allowed in part and the second cause of action is remitted to the High Court at Invercargill.Conclusion[22] Accordingly, although we confirm the decision of the High Court Judge on the specific point of interpretation, we allow the appeal against the strike-out of the entire substantive proceedings. If Mr Reihana is able to articulate some pointbeyond that which the Court has held against him, arising from his proceeding, that can be considered further in the High Court at Invercargill. [23] Mr Reihana should not overlook the fact that there remains outstanding an application for costs against him in respect of CA47/05 and that there was an application for costs in respect of this matter. If he persists with litigation when it is clear that he cannot succeed, he does so at his peril in respect of costs orders.Result[24] Although we confirm the conclusion of Doogue J on the interpretation of s 48(1)(d), the appeal is allowed and the strike out is quashed in respect of the second cause of action. All issues of costs are reserved.Solicitors: Crown Law Office, Wellington