TUNA v TE UREWERA BOARD [2022] NZHC 2924

TUNA v TE UREWERA BOARD [2022] NZHC 2924 [8 November 2022]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2022-463-105[2022] NZHC 2924UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court RulesIN THE MATTER of an application for judicial reviewBETWEEN WHARENUI CLYDE TUNAApplicantAND TE UREWERA BOARD, being the boardestablished under s 16 of Te Urewera Act2014First RespondentTRUSTEES OF TŪHOE – TE URUTAUMATUA, being the trust referred to asTuhoe Te Uru Taumatua in Te Urewera ActSecond RespondentTHE DIRECTOR-GENERAL OFCONSERVATIONThird RespondentTeleconference: 7 and 8 November 2022Appearances: W Aldred and TWR Lynskey for ApplicantP Beverley for First and Second RespondentsJ Gough for Third RespondentJudgment: 8 November 2022JUDGMENT OF WOOLFORD J[Interim relief]This judgment was delivered by me on Tuesday, 8 November 2022 at 4:45 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy Registrar[1] The applicant, Wharenui Clyde Tuna's whakapapa connects him to all the hapūof Waimana and other hapū across Te Urewera. He has a relationship with Te Urewerathat transcends the physical contemporary world, a relationship that is founded in past,present and future generational connection with Te Urewera. Te Urewera forms partof his spiritual identity, it brings peace and comfort, it brings spiritual enlightenmentand contentedness.[2] The applicant objects to the current what he says is hasty destruction by fire ofthe hut network throughout Te Urewera by the second respondent, Tūhoe – Te UruTaumatua (TUT), the operational entity of the first respondent, Te Urewera Board(TUB). He seeks an interim order requiring the second respondent immediately tocease its programme of destruction of listed huts pending final disposition of thisproceeding. The application is made on a without notice basis because of its urgency,but the respondents were served with the proceeding to allow them to have some input.[3] I held telephone conferences with counsel representing all parties on 7 and8 November 2022. Counsel for the first and second respondents advised the Courtthat he had instructions to strongly resist any interim order but was not in a position togive an undertaking to cease the programme of the demolition or removal of the hutspending a hearing of the application for an interim order. Counsel for the thirdrespondent agreed that the first and second respondents should be heard before anyinterim orders were to be made.[4] Counsel for the first and second respondents has advised the Court that theparties should be in a position to propose a timetable for the hearing of the applicationfor an interim order by 18 November 2022. However, the issue of protection of theapplicant's position remains as an undertaking is not available. It is thereforenecessary for me to review the application to determine whether I should grant aninterim interim order to protect the applicant's position until the application for aninterim order can be argued.Factual background1[5] The applicant, Mr Tuna, is of Tūhoe and Te Whakatāne hapū and resides in theWaimana Valley. He has spent his whole life in the Waimana Valley and drawsparticular identity and strength from his connection with Te Whakatāne hapū. He hasused the huts, which are the subject of this proceeding, for recreation and the gatheringof food since he was a child.[6] The first respondent is the board established under s 16 of Te Urewera Act 2014(the Act), charged with the governance and management of Te Urewera. The secondrespondent is the Tūhoe Trust established by a trust deed, dated 5 August 2011, andreferred to in the Act as Tūhoe Te Uru Taumatua (the trust deed having been amendedand restated by a further trust deed, dated 13 December 2013). The third respondentis the Director-General of Conservation, who retains certain functions in relation toTe Urewera under the Act.[7] Prior to and during its designation as Te Urewera National Park, Te Ureweracontained a network of huts which were and remain in Crown ownership administeredby the Department of Conservation. The oldest of the huts were erected in the 1950s,while others are of more modern construction.[8] The huts have been extensively used by Tūhoe and the general public,including trampers and hunters as a base for their activities in Te Urewera. The hutshave provided shelter for hapū of Tūhoe when visiting Te Urewera to gather food, forcultural purposes, or for recreation.[9] Some of the huts are "biodiversity" huts that are not used by the public, but arelocated around core conservation areas. They are used to provide accommodation andas a base for conservation personnel for biodiversity work, including trappingpredators and monitoring rare taonga species, including, but not limited to kōkako,kiwi, kākā, whio and mistletoe.1 The factual background is taken entirely from the documents filed by the applicant, including fouraffidavits. I have received no documentation from the other parties.[10] Following the settlement of Tūhoe's historical Treaty of Waitangi claims in2013, Te Urewera was declared by the Act to be a legal entity and its governance andmanagement vested in the first respondent. Crown improvements within Te Urewera(including the huts) remain vested in the Crown, subject to the powers of the ChiefExecutive of the second respondent and the third respondent under s 95 of the Act touse, occupy, access, maintain, remove or demolish them, provided that is in a mannerthat is consistent with the management plan of the first respondent and the annualoperational plan of the second respondent prepared under s 53 and in accordance withcl 24 of the Second Schedule to the Act.Resolution to decommission DOC structures[11] The minutes of a meeting of the first respondent on 15 February 2022 record:Responsibility for Health & SafetyTūhoe wish to free DOC from its H&S legal obligations by working togetherto remove their entire assets structures infrastructure from Te Urewera. Tūhoewill start by collating and returning all DOC equipment on loan and purchasetheir own. Then as the shared annual operations plan, assist with the removalof huts and eventually bridges. There are at least 10 huts not fit for purpose –not repairable. DOC to make a decision about the others, work out a sequenceand cost. Tūhoe have no want or need to retain the existing structures newconstructions to be financed by Tūhoe.The removal of all assets is very symbolic to the legislation.DOC agreement to this focus for 2022-23 would restart open conversationwith Tūhoe.[12] The following discussion is then recorded in the minutes of a meeting of thefirst respondent on 17 May 2022:The way ahead – A way ahead is tricky because of the ever presence of toomany unresolved serious troubles that have brought us to this point of despair.Needing to know if we can, do we want to, how do we fix that back stuff sowe have reason hope and trust to go ahead? These can be snakes and ladders.We need more than kind words and good sentiments. We need action on everycommitment the decommissioning of DOC structures the exit of DOCinfrastructure is that action we need actioned.[13] The first respondent then records passing a resolution as follows:United with Tūhoe Te Uru Taumatua the Te Urewera Board supports thedecommissioning of all DOC structures and infrastructure from Te Urewera.[14] The resolution was passed during the general business section at the end of themeeting and had not been placed on the agenda for the meeting. At the time of theresolution, the representative of Waimana Valley hapū (collectively referred to as theWaimana Kaaku Tribal) who sat on the first respondent Board was Marewa Titoko.Ms Titoko abstained from voting because she had no prior notice of the motionregarding decommissioning of DOC structures and had accordingly not been able toshare information about it with the hapū she represented. Ms Titoko, accordingly,advised the first respondent Board that she could not vote in the absence ofendorsement of Te Waimana Kaaku Tribal. The minutes record:Marewa abstained from the resolution citing need to receive endorsementfrom the Waimana Kaaku tribal.Destruction of huts commences[15] In or about early October 2022, the second respondent announced its intentionto commence removal of the huts. In or about early October 2022, the secondrespondent, through its contractors or employees, burned down the Kanohirua hut nearMaungapōhatu. Between the burning down of the Kanohirua hut and the end ofOctober 2022, the applicant believes that between 15 and 20 huts have been burntdown by employees or contractors of the second respondent. Notwithstanding whatthe applicant says is significant negative reaction to the destruction of the huts frommembers of Tūhoe and the wider public, it is apparent that the second respondentintends to continue with its project to destroy the huts. Its publicly stated objective isto have destroyed them all before Christmas 2022.[16] The applicant says that the destruction of the huts that has occurred and iscontinuing to occur has caused great distress and loss of wairua for the applicant andaffects his Tūhoetana.Alleged errors in process[17] The applicant asserts that proper process has not been followed. He says thefirst respondent:(a) Failed to act in accordance with the principles stated in s 5(1) of theAct, including the preservation of the historical and cultural heritage ofTe Urewera.(b) Failed to take into account the requirement in s 5(2) of the Act to act sothat the public has freedom of entry and access to Te Urewera, subjectto any conditions and restrictions that may be necessary to achieve thepurpose of the Act or for public safety.(c) Failed to consider and provide appropriately for the relationship of iwiand hapū with their culture and traditions with Te Urewera, as it isrequired to do so by s 20 of the Act. In particular:(i) It provided no opportunity for hapū to consider and providecomment on the proposed motion; and(ii) The resolution is inimical to the relationship of the applicant'shapū and its culture and traditions with Te Urewera.(d) Failed to consult with hapū by giving hapū or their representative,Ms Titoko:(i) Prior reasonable notice of the motion; and(ii) Information about the proposed approach to decommissioningsufficient to enable hapū to reach an informed view before themotion was considered by the first respondent.(e) Failed to consult with the wider public regarding the potential impacton free public access to Te Urewera.[18] The applicant also asserts that the second respondent made similar failings, inparticular by acting in reliance on the resolution of the first respondent, which wasunlawful and invalid.[19] Finally, the applicant refers to the lack of an annual operational plan preparedin accordance with s 53 of the Act. He says that s 53 of the Act provides that eachyear the second and third respondents must prepare an annual operational plan for theoperational management of Te Urewera in the following year. He says no operationalplan has been prepared by the second and third respondents for the 2022 year.Section 95 of the Act provides that Crown improvements remain vested in the Crownand may only be demolished in a manner that is consistent with the management planand the annual operational plan.[20] In the absence of an operational plan prepared in accordance with s 53, acondition of the lawful demolition of the structures has not been met and, accordingly,such demolition is unlawful. The applicant says the second respondent's actions indestroying the huts or causing them to be destroyed was not otherwise authorised bylaw.Affidavits in support[21] The applicant has filed four affidavits in support of his claim for interim relief.In his affidavit, the applicant says he is concerned about the loss of free access toTe Urewera for himself, his whānau and hapū to use the huts as a base for foodgathering, recreational and cultural purposes.[22] A conservationist and former manager of the Te Urewera Mainland Islandproject from 1996 to 2002, Peter Geoffrey Shaw, is concerned about biodiversity risksof destroying the remainder of the huts as well as the reduction of public access thatwill inevitably result. He specifically refers to the effect that removal of the huts usedfor accommodation of conservation staff as a base for the trapping of predators in coreareas will have on endangered species, particularly the kōkako population ofTe Urewera.[23] There is a third affidavit from Peter Donald Askey, the current President of theNga Tapuwae O Taneatua Tramping Club. He refers to the lack of any consultationprior to the decision to destroy the huts. He says the huts are a key part of theiractivities and trip planning. In his opinion the huts play a vital role in enabling theClub to safely run multiday trips. He says the hut network provides an essentialcontingency for travel if things go wrong due to weather, illness, or injury.[24] Finally, a solicitor, Thomas William Robert Lynskey, attaches correspondenceto his affidavit from the Department of Conservation about the lack of a currentoperational plan.Test for interim order[25] In judicial review proceedings, interim orders may be made to preserve theposition of an applicant. Section 15 of the Judicial Review Procedure Act 2016provides:15 Interim orders(1) At any time before the final determination of an application, the courtmay, on the application of a party, make an interim order of the kindspecified in subsection (2) if, in its opinion, it is necessary to do so topreserve the position of the applicant.(2) The interim orders referred to in subsection (1) are interim orders—(a) prohibiting a respondent from taking any further action thatis, or would be, consequential on the exercise of the statutorypower:(b) prohibiting or staying any proceedings, civil or criminal, inconnection with any matter to which the application relates:(c) declaring that any licence that has been revoked or suspendedin the exercise of the statutory power, or that will expire bythe passing of time before the final determination of theapplication, continues and, where necessary, that it be deemedto have continued in force.(3) However, if the Crown is a respondent,—(a) the court may not make an order against the Crown undersubsection (2)(a) or (b); but(b) the court may, instead, make an interim order—(i) declaring that the Crown ought not to take any furtheraction that is, or would be, consequential on theexercise of the statutory power:(ii) declaring that the Crown ought not to institute orcontinue any proceedings, civil or criminal, inconnection with any matter to which the applicationrelates.(4) An order under subsection (2) or (3) may—(a) be made subject to such terms and conditions as the courtthinks fit; and(b) be expressed to continue in force until the application isfinally determined or until such other date, or the happeningof such other event, as the court may specify.[26] McGechan states that the current approach to interim orders begins with thestatutory threshold of the necessity to preserve the position of the applicant. It thenapplies a wide discretion which does not seek to define factors relevant to thediscretion, but which requires the court to consider all of the circumstances. Thesecircumstances include the strength or weakness of the claim, the statutory framework,the public interest, and the private and public repercussions of granting relief.2[27] Necessity to preserve the applicant's position is the threshold. In this case theapplicant has used the huts for recreation and to gather food since he was a child. Hewishes to continue to do so. The huts are currently being systematically destroyed byfire. They will be gone by Christmas. There will therefore be nothing to preserve ifan interim interim order is not now granted pending a hearing of the application for aninterim order.[28] The strength of the applicant's substantive case is usually, but not always testedby the Court. In the present case, the applicant has put forward a number of groundsfor judicial review. As to the alleged breach of natural justice, the minutes of the firstrespondent record the abstention of one of the Board members on the basis of the needto receive endorsement from Te Waimana Kaaku Tribal. This would imply that themember was unaware that the matter would be raised at the meeting (that is, that therewas inadequate notice).[29] The applicant also refers to what he says are various breaches of the Act. Icannot really assess the merits of such claims without hearing from other parties andanalysing whatever documentation they are in a position to provide.2 Andrew Beck and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [JR15.02].[30] However, as to the lack of an operational plan for the current year, theDepartment of Conservation has emailed one of the deponents, Thomas WilliamRobert Lynskey, on 3 November 2022, as follows:We are unable to provide a copy of the current operational plan for Te Urewerathat meets the criteria you specified (a copy of any current operational planfor Te Urewera prepared under s 53 of the Te Urewera Act by the ChiefExecutive of TUT and the Director-General of Conservation) because, for the2022-2023 year DOC and TUT have not worked together on a draft annualoperational plan for the Board's consideration.[31] Section 95 permits demolition of Crown improvements in a manner that isconsistent with the management plan and "the annual operational plan forTe Urewera". In the absence of an annual operational plan, it is difficult to see howdemolition of the huts is consistent with it.[32] The Court will usually take a more robust attitude to assessing the degree oflikelihood that an applicant will succeed in the substantive proceeding if an applicationfor interim relief will effectively determine the proceeding. That is not the case here.Interim relief will not effectively determine the proceeding.[33] Overall, it is my assessment that the applicant's case is not without merit.[34] Furthermore, there is no demonstratable disadvantage to the huts remainingpending a hearing of the application for an interim order. No inconvenience to therespondents would be caused. Although an interim interim order may cause somefrustration to the respondents' plans, any opposition to interim relief lacks weight.Result[35] In this case, standing back and asking where the overall justice lies, I am of theview that the applicant should be granted interim relief. There will accordingly be aninterim interim order that the first and second respondents or their employees orcontractors immediately cease their programme to demolish or remove the huts listedin the appendix to the statement of claim pending the hearing and determination of theapplication for an interim order. The second respondent is also to file and serve acomplete list of the huts that have been demolished or removed by 5:00 pm onWednesday, 9 November 2022.________________________________Woolford JSolicitors: Izard Weston (TWR Lynskey), Wellington, for the ApplicantBuddle Findlay (P Beverley), Wellington, for the First and Second RespondentsCrown Law (J Gough), Wellington, for the Third RespondentCounsel: W Aldred, Wellington