TONI COLIN REIHANA V DIRECTOR-GENERAL OF CONSERVATION HC INV CIV 2005-425-000075

TONI COLIN REIHANA V DIRECTOR-GENERAL OF CONSERVATION HC INV CIV 2005-425-000075 19 December 2007IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY CIV 2005-425-000075BETWEEN TONI COLIN REIHANA Applicant AND DIRECTOR-GENERAL OF CONSERVATION Respondent Hearing: 29 October 2007 Counsel: Appellant in Person B Arthur for Respondent Judgment: 19 December 2007 at 2.00 p.m.JUDGMENT OF SIMON FRANCE J 1. Introduction[1] This application concerns the Titi (Muttonbird) Island Regulations 1978. The Regulations control access to a group of islands off Stewart Island. The islands take their name from the annual migration to them of the muttonbird (titi). The hunting of titi has long been a practice and right of some Rakiura (Stewart Island) Maori who are the beneficial owners of these islands. [2] Those regulations provide, inter alia, for the annual election of the Rakiura Titi Committee which is to inquire into and make recommendations to the Commissioner concerning any matter affecting the Islands. All Rakiura Maori, and their spouses, may vote for the members of the Committee, and be elected to the Committee.[3] Mr Reihana believes that the only persons who should be eligible to vote for Committee members are those Rakiura Maori who are beneficial owners of the land in question. Those people are defined in the Regulations:Beneficiary means a Rakiura Maori who holds a succession order from the Maori Land Court entitling him to any beneficial interest in any beneficial island.[4] Against that general background, the focus of the specific challenge by Mr Reihana needs some exploration.2. The proceedings[5] In an earlier ruling (CIV 2002-409-000755, HC Chch) Panckhurst J observed:The Deed of Cession of Stewart Island dated 29 June 1864 secured to Rakiura Maori (being the original Maori owners of Stewart Island) the right to take muttonbirds from the Titi Islands near Stewart Island. The means by which that end is secured is the Titi (Muttonbird) Islands Regulations 1978. Administration of the regulations lies with the Director-General of Conservation. For some time he has wished to update the regulations.[6] The Director-General is authorised to make Regulations under s48(1)(d) of the Conservation Act 1987. That provides that the Director-General may make regulationsIn 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:[7] At issue, originally at least, was the consultation process being followed by the Director-General in going about that updating process. The proceedings, filed by Mr Reihana in February 2005, contained two causes of action: a) first that it was contrary to s48(1)(d) of the Act to consult with anyone other than the beneficial owners;b) second, if not so prohibited, the decision of the Director-General to consult with other persons was irrational. [8] Doogue J struck out both causes of action. Mr Reihana succeeded on appeal (CA 47/05, 18 July 2005) to the extent that the second cause of action was reinstated. The Court of Appeal observed:[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 s48(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.[9] Subsequent to that judgment, there have been various attempts to have the content of the re-instated second cause of action clarified. On 22 May 2006 Hansen J directed an amended pleading be filed within 14 days. Mr Reihana complied on 5 June 2006, but Associate Judge Christiansen shortly thereafter noted that what exactly had been filed was "confusing". However, there followed a telephone conference which set a timetable. [10] The matter was to be heard before Hansen J on 26 February 2007. It was adjourned on the day, however. The Court and the respondent had seemingly become aware only on the day or thereabouts what the true nature of the applicant's concern was. An adjournment was given to allow time for the Director-General to further consult in light of this new understanding. Hansen J at the time identified the "two pronged concerns" as being: a) non-owners have voting rights; b) what voting rights there should be for beneficiaries who claim through owners. [11] On 29 May 2007 Hansen J set a new fixture date for 29 October 2007, further discussions not having led to any agreed position. Updated affidavits and writtensubmissions were to be filed by specified dates. The Director-General was also given 10 days to file submissions as to why an interim order preventing the promulgation of new regulations should be rescinded. The respondent complied; Mr Reihana did not respond. The interim order was set aside. [12] In the meantime, Mr Reihana had filed an Amended Statement of Claim (2007). It is dated 10 April 2007; when exactly it was filed I am unsure. It is the document on which the Court's hearing of 29 October 2007 proceeded. [13] The only cause of action is that:"the defendant exercised his statutory power of decision in an unreasonable illogical and irrationale (lacking rationale) manner when carrying out his statutory duty to amend the Titi (Muttonbird) Regulations 1978. In accordance with s48(1)(d) Conservation Act 1987; resultant through not consulting with the Maori owners in any considerate or adequate manner".[14] Fourteen "grounds of claim" are then articulated, concluding with the relief being sought:A declaration that the defendant's failure during the regulations amendment process over the past decade, to rectify and recognise those ultra vires Titi Regulations 1978 provisions in Reg 7 that offend Treaty principles written into s4 Conservation Act 1987 was, through an ongoing failure to discover, a very serious oversight, through unreasonable, illogical, or irrationale decision making, and is a situation compounded by another breach of the s4 Treaty principle of Rangatiratanga , with the defendant arbitrarily opening up the consultation with the Maori owners pursuant s48(1)(d) Conservation Act 1987, to be consultation with just anyone;3. So to the hearing[15] Having now reflected both on the history of the matter, and what was covered at the hearing, I have come to the view that it is necessary at the outset to identify what was legitimately in issue. This is necessary both because of the somewhat elusive nature of the plaintiff's claim, and because at the hearing Mr Reihana claimed that he was challenging the vires of the Regulations themselves. The respondent was surprised by this.[16] In my view the consistent theme in the paper work has been the consultation process in relation to the making of revised regulations. The effect of the Court of Appeal decision in relation to this consultation is that it is not open to Mr Reihana to claim that the Director-General erred only by the fact that he consulted with persons other than the beneficial owners. The focus must therefore be in relation to the legitimacy, in a judicial review sense, of the choices made by the Director-General as to who to consult. [17] Accordingly, this judgment is limited to that aspect. I reject the proposition that the vires of the existing regulations was part of the proceedings. Making due allowance for litigants in person cannot extend to allowing a respondent, including the Government, to be unfairly disadvantaged. The vires of the Regulations, in force for nearly 30 years, was not a specific claim or challenge. Further, there are many more people than Mr Reihana affected by these regulations and they are entitled to have appropriate notice of challenges in respect of them. Mr Reihana does not have, and as I understand it does not claim to have, any mandate to speak on behalf of the beneficial owners. [18] As noted, s48(1)(d) of the Conservation Act 1987 requires consultation with the Maori owners before Regulations are made. I take the applicant's challenge to be to the consultation undertaken under that obligation. As I understand it, it is an on-going consultation but I will review that which has occurred to date. The applicant's focus seems to be: a) The adequacy of consultation with the beneficial owners; b) The inappropriateness of other consultation given that s4 of the Conservation Act 1987 says the consultation obligation in s48(1)(d), as with all parts of the Act, is to be interpreted and applied in a manner that gives effect to the principles of the Treaty of Waitangi.4. The applicant's case[19] Mr Reihana stated the essence of his case to be that the process followed by the Director-General has not recognised the rangatiratanga of the beneficial owners. [20] His starting point was that regulation 7 of the current regulations, which does not give sole voting power to beneficial owners, was in breach of the principles of the Treaty. The consultation that took place about new regulations had to recognise that breach, and be directed at correcting it. [21] Addressing the detail, Mr Reihana first referred to the way in which the required annual meeting was conducted in February 2005. In his submission DOC officials controlled the meeting in breach of the rangatiratanga of the beneficial owners. It is said that the defendant's officials hi-jacked the meeting and controlled the agenda. An aspect of this control was to provide for a "Ngai Tahu Report", something which was in direct conflict with the mana of Rakiura Maori, and in particular the beneficial owners. [22] Mr Reihana next referred to the Principles of the Treaty of Waitangi promulgated by Mr Lange's Government; Mr Reihana focussed particularly on "2. The Rangatiratanga Principle. The Principle of Self-Management", emphasising those passages that stress that Maori would retain full authority over their lands. In his submission the consultation process, and intended regulations, did not reflect this. [23] Next, Mr Reihana referred to an affidavit filed on behalf of the respondent by Mr Lind. At paragraph 29 Mr Lind sets out why there was consultation with Rakiura Maori other than those who are currently beneficial owners: 29.1 some are not owners now but may be potential owners when other family members die, and 29.2 although some will not be owners, it was considered appropriate to consult this group having regard to the Department's responsibilities pursuant to section 4 of the Conservation Act.[24] Mr Reihana submits that paragraph 29.3 is "typical" of the Department's approach:I think that if the defendant perceives that it is both consistent and appropriate with the s.4 Treaty principles to allow non "Maori owners" to have Rangatiratanga (chiefly status), and Mana (an ability to voice an opinion or be heard), that would ultimately affect the position of the Maori owners, I say is a totally wrong misconception of what the Treaty principles of Mana and Rangatiratanga actually mean. To me this misconception by the defendant mirrors the defendant's failure to recognise and remove those Regulation 7 provisions that allow non Maori owners to vote on all matters at all meetings, become the majority of the Rakiura Titi Committee, and have any mention and position in the Regulations period.[25] Mr Reihana next commented upon "Crown apologies" that had been made as part of the Treaty settlements. In his submission these apologies reflected the increased recognition of the centrality of rangatiratanga. What was happening as regards these Regulations was inconsistent with what underlay those apologies. [26] Appendices F and H to his submissions were examples of the many occasions on which it had been submitted to the respondent that Regulation 7 was in breach of the Treaty principles, and of the awareness of the respondent of this concern. [27] The applicant then referred to further evidence of the respondent where it is said that the existing Rakiura Titi Committee rejected, in both 2004 and 2005, a proposal by the respondent to review the voting rights of the beneficial owners. In response to this point, Mr Reihana anticipated an affidavit from the current chair of the Committee revising this stance, but added that in any event the obligation was on the respondent to do a review on its own initiative. [28] The Chair of the Committee is Mr Robert Coote. He advises that on 24 June 2007 a meeting of beneficial owners resolved that only beneficiaries should have a vote pursuant to Regulation 7, and secondly:"that promulgation of new Titi (Muttonbird) Regulations should be put on hold until such time as the Titi Island Whanau Project is completed."[29] In a related affidavit Mr Coote advises that neither he nor the Rakiura Titi Committee are in opposition to the Department of Conservation and for the most part relations were one of mutual respect. [30] Mr Reihana next revisited how the process of the annual meeting required by the Regulations had been subverted over the years. He anticipated this line of submission would be contested for relevance. Whilst I accept that it is for him an example of a pattern to which he takes strong objection, it indeed did not seem to be of any direct relevance. [31] Mr Reihana concluded the specifics in support of his claim by referring to the deficits he saw in a consultant employed by the respondent to assist with the drafting of the Regulations. Again it is not an aspect I found helpful. [32] Commenting orally on his consultation complaints, in response to a query from the bench, Mr Reihana essentially argued that consultation with anyone other than the beneficial owners was inappropriate. It was not appropriate because it was inconsistent with the rangatiratanga of the beneficial owners, and therefore inconsistent with s4 of the Conservation Act 1987.5. The respondent's case[33] Although this matter could be disposed of without traversing the respondent's case, I consider that would be unfair in that it might leave an inadequate impression of the process that has occurred. [34] By way of background, the respondent's submissions outline the history of the Islands. In 1864 certain lands were sold by Ngai Tahu and Ngati Mamoe to the Queen, but some islands, including the Titi Islands, were reserved to the vendors and their descendants. The Islands were of special value because of the muttonbirds. [35] Successive Land Acts provided for regulations to be made for the governance of these islands. All included a requirement that such regulations be after consultation with the Maori owners. In its Ngai Tahu report, the Waitangi Tribunalcommented favourably on the management arrangements, and specifically found that:There was no breach of the Treaty principles in the action of the Crown in issuing regulations governing the administration of these islands".[36] The initial Regulations were gazetted in 1912 under the Land Act 1908, and were slightly amended at various times thereafter. The current regulations were made under the Land Act 1948, but now fall under the auspices of the Conservation Act 1987, and are to be treated as if made under the Act. [37] More significant recent changes have occurred as a result of the Ngai Tahu Settlement. Originally there were two classes of islands – the Crown Islands owned by the Crown, and the beneficial islands where beneficial ownership remained with Rakiura Maori (and specifically with those defined as beneficiaries in the Regulations). Under the Ngai Tahu Settlement, the fee simple in the Crown Islands vested in Ngai Tahu, although Crown management continued until March 2005. As a consequence of this change, the Regulations now in issue apply only to the remaining 18 "Beneficial Titi Islands". Those islands are formally Maori freehold land, but are subject to s6 of the Maori Purposes Act 1983 which preserves the regulation making power contained in the Conservation Act. [38] The following summary of consultation that has occurred, and the reasons for it, is taken from the Crown submissions, which are in turn supported by the affidavit evidence. [39] A Rakiura Titi Committee was first established in 1994. During the late 1990's there was a first substantive review process of the Regulations, but that was affected by events surrounding the Ngai Tahu settlement. The process continued and draft Regulations were done in 2001, 2002, and 2004. The Department's view is that the content of the draft regulations that were produced in 2002 and 2004 was driven by the Committee's wishes. [40] Ultimately the draft regulations of 2002 and 2004 were not pursued. Instead, the respondent terminated this consultation process because, in its view:a) too long had elapsed since consultation; b) the Committee had advised the changes proposed were no longer supported; c) the Committee indicated it no longer had a mandate for the revision, and had in fact voted by a majority to retain the 1978 Regulations. [41] A fresh revision and consultation process commenced in 2004/05. The Department's position is that the unsuccessful process previously followed meant that the aims of the new revision process should be limited, and should focus only on two Crown driven initiatives: a) expanding the Committee's role to take over operational and day to day administration of the Islands; b) amending the Regulations, as part of a wider government initiative, to ensure compliance with human rights legislation, particularly in eliminating discrimination as regards de facto and same sex partners. [42] At the request of the Rakiura Titi Committee, the Department at this time of initiating a further review gave an express undertaking that it would not revisit matters arising out of the prior consultation process. Mr Roberts explained that the Rakiura Titi Committee had sought assurances that the Department would not "slip in" changes other than the two that had been indicated. Changes to the voting process were amongst the items discussed in the preceding unsuccessful review process, and were therefore not appropriate or available topics given the undertaking. [43] Two other matters require noting. At the suggestion of the Committee a project known as the Titi Island Whanau Project has been initiated to advance the broader issues put on hold in 2004. The project document, signed by Mr Coote as Chair of the Committee, begins:"An initiative of the Rakiura Titi Committee made possible with the assistance of Awarua Runaka and funding from Te Puni Kokiri".[44] It describes itself as an ambitious project stemming from the need for a legal entity through which the beneficial Titi Island community can work to ensure its customs and history remain relevant today and into the future. It is envisaged there will be a questionnaire process, to be followed by a series of hui to: a) come to agreement on the form and content of our entity and its constitution; b) come to agreement on what our community considers to be its tikanga today; c) come to agreement on the desirability of an archive; d) come to agreement on a management plan for the islands and a method of funding administration of our entity. [45] The second development to note is that the Committee seemingly no longer supports the making of regulations encompassing the limited 2005/2006 reforms until this wider process is completed. This appears from the latest affidavit of Mr Coote. [46] Turning to the particular consultation undertaken on the current proposed regulations, Mr Lind advises that a fresh review initiative came about because of the Government's legal recognition project which required enactments to be reviewed for consistency with human rights principles and legislation. As part of that process, issues surrounding the status of de facto partners were raised. The Director-General seems to have viewed the need to make these changes as an opportunity to also suggest measures for transferring greater day to day control to the Committee. [47] Four groups were identified for consultation: the owners of the beneficial Titi Islands, Te Runanga o Ngai Tahu, the Rakiura Titi Committee and Rakiura Maori. Each is addressed in turn. [48] Concerning the beneficial owners, s48(1)(d) of the Act expressly requires consultation.[49] Concerning Te Runganga o Ngai Tahu, titi are listed as a taonga species under Schedule 97 of the Ngai Tahu Claims Settlement Act 1998. Section 293 of the Act mandates consultation in relation to the management, protection and conservation of a Taonga species. [50] Concerning the Rakiura Titi Committee, its function is to inquire into and make recommendations to the Director-General upon matters affecting these lands. The Department considered this meant it must consult with them. [51] Concerning Rakiura Maori, many are owners, some may potentially be so (including as I understand it Mr Reihana) and the balance were thought to be "relevant" by virtue of s4 of the Conservation Act 1987. (To this I would add that presently all Rakiura Maori may vote for the Committee and stand on it. They also have qualified access rights to the islands.) [52] No other bodies were specifically consulted. [53] The process of consultation consisted of preparing and distributing information, calling for submissions, and providing an opportunity for oral submissions. An independent Commissioner was appointed to conduct this process. [54] Detail is provided as to the public notification given. An eight week period for submissions to be filed was provided for, and as a consequence 247 written submissions were received. All of the people who made submissions were contacted and offered a opportunity to make oral submissions. The Independent Commissioner then reported, and changes were made to reflect his report. [55] Concerning the special status of beneficial owners, anyone making submissions was asked to identify if they had this status so that appropriate weight could be given. Of the 247 submissions, 136 were owners, and 95 identified themselves as potential owners. Accordingly the vast bulk of the input was from owners. (Of the balance, 14 were Rakiura Maori, and 2 did not identify any status or affiliation.) Te Runanga o Ngai Tahu did not make a submission.6. Decision[56] In my view the challenge is without merit. The Court of Appeal has already laid down that s48(1)(d) of the Conservation Act 1987 does not limit consultation to the actual owners. The other bodies identified by the respondent, and consulted, are potential owners, the Committee presently established to assist with governance of the islands, Rakiura Maori who presently have a role in appointing the Committee and Te Runanga o Ngai Tahu concerning which there is a statutory obligation to consult. [57] The reality is that a failure to consult with any of these bodies would have been wrong. Once it is accepted that s47(1)(d) allows consultation beyond the actual owners, it is difficult to perceive how consultation could not involve these groups. [58] Whilst the scope of the intended changes to the Regulations is narrower than that earlier envisaged, I doubt that the persons needing to be consulted would change. Depending on the particular issue, the weight to be accorded particular views might change, but the basis the Department identified as requiring that each of those bodies should be consulted will in my view apply to any wider process. [59] It is difficult to respond to Mr Reihana's assertion that consultation outside the beneficial owners is contrary to their rangatiratanga and in breach of s4 of the Conservation Act 1987. No authority to support this was proffered, and it seems to potentially confuse consultation (the process of obtaining input) with outcomes. My conclusion is that the current legislative framework mandated consultation with the four groups who were offered the opportunity to be involved. [60] Finally I note that no specific criticism was made of the consultation process itself. Indeed, the topic was not addressed by Mr Reihana who, in reality, has not moved beyond his original position which was rejected by the Court of Appeal. [61] Concerning the now altered view of the Rakiura Titi Committee as to whether the changes should be put on hold pending completion of the Titi Island Whanau Project, the effect of that change in position is not something on which theCourt can comment. It is a change that would seem to require further discussion between the Committee and the defendant, but of course discussion is different from any subsequent decision. Not being privy to such discussion, nor having evidence of it, it is not for the Court to say at this stage whether the Department should proceed. [62] The limit, therefore, of this ruling is that it applies only up to that stage. To that point, in my view the consultation followed by the Department was appropriate, and met its obligations. [63] Finally a comment should be made about the scope of the consultation. Given the undertaking made by the respondent at the request of the Committee, and given there is now a joint project in place to address these wider issues, it was appropriate to limit the range of topics covered. The previous attempts at amending Regulation 7, for example, had by no means produced a unanimous Maori view. It must be proper to rely on a Committee sponsored initiative which has as its aim clarifying the preferred position of Rakiura Maori, and of the beneficiaries specifically.7. Conclusion[64] The application is dismissed. There have been previous judicial observations concerning Mr Reihana's liability to costs. Accordingly, I simply reserve the opportunity to the Department to file a costs memoranda in the usual way if it wishes. Given the time of the year I do not put a time limit on that but request that, if such application is to be made, it not be unduly delayed in the New Year. Mr Reihana lives in Australia, and so a longer period to reply is appropriate. Should the respondent seek costs, Mr Reihana has 3 weeks to reply. _________________________ Simon France JIn accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 2.00 p.m. on the 19th day of December 2007.Solicitors: Toni Colin Reihana, PO Box 903, Beenleigh (Main), QLD 4207, Australia Crown Law Office, PO Box 2858, Wellington