Wharenui Clyde Tuna’s interim order application requiring Te Urewera Board and Tuhoe - Te Uru Taumatua, to stop their destruction of Te Urewera’s hut network was successful.
Te Urewera is governed by a Tuhoe settlement entity named Te Urewera Board whose membership is comprised of Tuhoe- Te Uru Taumatua trustees (TUT). The Crown, represented through the Director-General of Conservation, retains certain functions in the management of Te Urewera under the Te Urewera Act 2014 (the Act).
The central conflict of this case involves the first (Te Urewera Board) and second (TUT) respondents’ destruction of huts throughout the Te Urewera region. Mr Tuna’s whakapapa connects him to all the hapu of Waimana Valley and other hapu across Te Urewera. Tuna has used the huts for recreation and the gathering of food since he was a child and objects to their demolition.
Section 53 of the Act requires that each year the chief executive of TUT and the Director-General of Conservation must prepare an annual operational plan for the operational management of Te Urewera in the following year. Section 95 of the Act provides that Crown improvements within Te Urewera, such as the hut network, may only be demolished in a manner that is consistent with the management plan and the annual operational plan for Te Urewera. Tuna argued the destruction of the hut network breaches the Act as TUT and the Director-General of Conservation had not prepared an operational plan. Therefore, the respondents’ demolition programme is unlawful.
Mr Tuna also claimed that the Te Urewera Board did not follow the proper process in their decision-making. He argued the lack of consultation with iwi and hapu regarding the proposed demolition programme and the failure to recognise the cultural significance of the huts breaches s 20 of the Act. Nor did the Board consult with the wider public regarding the potential impact on free public access to Te Urewera as required under s 5(2) of the Act.
Section 15 of the Judicial Review Procedure Act 2016 empowers the courts to grant interim orders where necessary to preserve the applicant’s position before the substantive trial occurs. In doing so, the court is required to consider all of the circumstances including the strength or weakness of the claim, the statutory framework, the public interest, and the private and public repercussions of granting relief.
The Court was satisfied that Mr Tuna met the statutory threshold of necessity. Woolford J applied the s 15 principle to preserve the position Tuna would have been in “but for” the respondents destroying the huts. His Honour noted that there would be nothing to preserve if an interim order was not granted immediately.
Woolford J did not consider Tuna’s grounds for judicial review substantively. His Honour briefly assessed the strength of the applicant’s prospective case. The evidence confirmed that TUT and the Director-General of Conservation did not prepare an operational plan for the 2022-2023 year. Woolford J commented that in the absence of an operational plan prepared in accordance with s 53, the hut demolition programme failed to satisfy the conditions laid out in s 95. His Honour held that Mr Tuna’s case was not without merit. The question of the lawfulness of the hut demolition was left to the full trial.
The Court granted Mr Tuna interim relief and ordered the first and second respondents to immediately cease their hut demolition programme.
Woolford J held that interim relief will not effectively determine the substantive proceeding. The court accepted that the interim order may frustrate the respondents’ plans of demolition, but concluded that there was no disadvantage to allowing the huts to remain.
For further information on this case or similar issues please contact Director Brigitte Morten
