A member of Tuhoe successfully challenged a decision to demolish a number of huts in Te Urewera.
In 2013, the Crown and Tuhoe signed a settlement deed that agreed, among other things, that Te Urewera would have legal personality rather than merely being a national park. Te Urewera Act 2014 (“Act”) gives effect to the settlement deed, and the deed of key importance in interpreting the Act.
The Act specifies that Te Urewera is governed by Te Urewera Board (“Board”), established under s 16 of the Act. Board members were a mix of Tuhoe - Te Uru Taumatua trustees (“TUT”) and appointees of the Minister of Conservation. The Director-General of the Department of Conservation and the chief executive of TUT are responsible for operational management of Te Urewera.
The Act requires that that TUT and DOC must prepare an annual plan for the “following year” to provide for the operational management of Te Urewera. A draft plan must be approved by the Board under Schedule 2 cl 24 of the Act before it can become final.
The Crown retains property rights in certain improvements in the area, including the hut network, but can only take certain actions in respect of them (including demolition) in accordance with the annual operational plan. The Act provides certain residual powers to the Crown to act where no annual operational plan has been agreed.
No annual operational plan was approved for the 2021/22 and 2022/23 operational years due to disagreements between the Crown and TUT.
In 2022, the Board announced its decision to demolish 43 huts in Te Urewera. Wharenui Tuna (a local hapu member who had used the huts for recreation and the gathering of food since he was a child) filed judicial review proceedings in the High Court. He claimed the Board and the Crown acted unlawfully in their decision to destroy the huts, as did TUT in acting on that decision (“Respondents”).
Tuna was granted an interim order in an earlier proceeding, which stopped any further demolition activity pending a decision in the case. Nonetheless, several further demolitions did occur, although it is yet to be discovered who was responsible.
On 24 August2023, after the interim order was granted, the respondents attempted to retrospectively validate the demolitions by approving annual operational plans for the relevant years.
Mr Tuna argued that the decision to demolish the huts was unlawful on several grounds. The actual demolition of the huts by TUT was similarly unlawful as it had been based on the unlawful demolition decision.
Failure to act in accordance with annual operational plan
Mr Tuna argued that the demolition decision had not been in accordance with a prevailing annual operational plan and was therefore unlawful.
It was not disputed that there had been no annual operational plan in place at the time the relevant actions had been taken. However, the Crown argued the plans published after the decision had retrospectively validated the decision.
The court accepted Mr Tuna’s argument that the absence of an annual operational plan meant that the demolition decision (and subsequent demolition) was unlawful. The existence of a plan was not a technical matter. The Crown’s right to exercise its powers as the owner of the huts was subject to authorisation by a relevant plan.
The court was particularly scathing about the purported retrospective adoption of the plans, which it noted was endorsed by the Crown 367 days after the end of the year to which it related. A retrospective approach was at odds with the use of future-oriented language in the Act such as “plan” and “the following year”. Additionally, the need for such a plan was not established given that the Crown could still act in relation to Crown property in the area under residual powers set out in the Act.
Breach of principles of the Act
Section 5 of the Act requires that persons performing functions under the Act must act to preserve ecological systems and biodiversity, freedom of entry and access to the area, and Tūhoetanga.
Mr Tuna argued that the decision breached s 5, because it resulted in a reduction of facilities that could be used by DOC in their biodiversity functions, as well as impeding the public from tramping safely in the area. The Crown argued that this ground should fail as the principles in s 5 were aspirational rather than legally binding.
The court agreed with Mr Tuna, holding that the imperative language used in s 5 (“must”)strongly suggested that a legal obligation was intended. While the court accepted that the Board and the Crown were entitled to significant leeway as to how they upheld these principles, there was no leeway to give in this case. Neither the Crown nor the Board had attempted to justify how the demolition decision would uphold the s 5 principles. The court would have given such a justification significant weight in line with the principle of deference had it been advanced.
Accordingly, the demolition decision was unlawful on this ground.
Failure to consult
The court rejected Mr Tuna’s argument that the Board and TUT were required to consult before the demolition decision. No party had a legitimate expectation of being consulted in relation to the decision, and there was no express or implied requirement for consultation in the Act. The presence of express consultation requirements in relation to other matters under the Act pointed strongly against an implied requirement of consultation in this case.
Additionally,this case did not fall within the rare class of case where fairness required consultation to take place.
The court did not decide on the appropriate relief and costs, ordering a further hearing. Submissions for the Crown were due in March 2024, but a hearing date has yet to be allocated.
Pending the relief hearing, the interim order will remain in place.
The case is a notable example of a senior court providing significant criticism of Crown actions during litigation. The court was particularly unimpressed with the Crown’s contention that annual operational plans were merely a ‘technical’ requirement and their attempt to validate their actions through adopting a retrospective plan.
