Ngai Tai Ki Tamaki Tribal Trust v Minister of Conservation

• Jurisdiction: New Zealand
• Judge: Kós P
• Judgment Date: 19 December 2017
• Neutral Citation: [2017] NZCA 613
• Docket Number: CA160/2017
• Court: Court of Appeal
• Date: 19 December 2017

Between

Ngāi Tai Ki Tāmaki Tribal Trust

Appellant

and

Minister of Conservation

First Respondent

Fullers Group Limited

Second Respondent

Motutapu Island Restoration Trust

Third Respondent

[2017] NZCA 613

Court:

Kós P, Miller and Clifford JJ

CA160/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

Indigenous Rights — appeal against a High Court decision by the respondent to grant concessions to other companies to conduct tours in the Huaraki Gulf — relevance of the Hauraki Gulf Marine Park Act 2000 and Conservation Act 1987

Counsel:

F M R Cooke QC, P J Andrew and R A Siciliano for Appellant

C D Tyson and C C McKay for First Respondent

A F Pilditch for Second Respondent

S J M Mount and A R Longdill for Third Respondent

• A The appeal is dismissed.

• B The appellant must pay the first respondent costs for a standard appeal on a band A basis and usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Kós P)

1 Ngāi Tai ki Tāmaki Tribal Trust (Ngāi Tai), the appellant iwi organisation, claims rangatiratanga over the Rangitoto and Motutapu motu (the motu) in the Hauraki Gulf (the Gulf). It says it has exclusive right to statutory concessions to conduct guided tours over the motu, and should have that for at least five years. It sought judicial review of concessions to conduct such tours granted to Fullers Group Ltd (Fullers) and the Motutapu Island Restoration Trust (MRT), the second and third respondents respectively. The concessions were granted by the Director-General of Conservation under delegation from the Minister of Conservation (the Minister), the first respondent.

2 Fogarty J held that certain errors of law had been made in granting the respondents' concessions. 1 But he held that those errors were insufficient to invalidate the decisions, that the decisions did give effect to principles of the Treaty of Waitangi (as the Conservation Act 1982 required) and that the application for review should be dismissed. Ngāi Tai appeals.

Background

3 The motu lie within the Gulf and the Rangitoto Island scenic, and Motutapu Island recreation, reserves. They are proximate, connected by a short bridge, and are popular destinations for recreational, scenic and cultural purposes. Many people visit them, most travelling by Fullers' ferry services.

4 The people of Ngāi Tai have deep historical and spiritual connections with the two motu. A voyager in the waka Tainui, Taikehu, established himself on Motutapu. This motu he named after part of his Hawaiki homeland. His iwi has had a presence there for 700 years or more. After the volcano on Rangitoto erupted about 600 years ago, the chieftain Kūpapa re-established Ngāi Tai occupation of Motutapu. One taonga symbolising Ngāi Tai's connection to the motu is fossilised

human footprints fixed in volcanic ash, discovered on Motutapu in recent years. This taonga is now found in the Auckland Museum. The motu contain numerous urupa and wāhi tapu sacred to Ngāi Tai. But Ngāi Tai has been marginalised from these motu to which it is so deeply connected. Motutapu was acquired by the Crown in 1840; Rangitoto a few years later. Ngāi Tai has pursued Treaty claims in respect of those transactions, and the motu, for successive generations

5 It is plain that Ngāi Tai's people are tangata whenua of the motu. Nor is there any doubt the iwi holds mana whenua over the motu. Ngāi Tai's argument here, though, goes further and asserts rangatiratanga over the motu. Fogarty J held that assertion could not be determined in these proceedings. We agree. This is judicial review about the granting of two concessions to non-iwi interests to operate tours on the motu. While rangatiratanga might be a relevant consideration, the legitimacy of the impugned decisions does not depend upon it. It was not part of the statutory function of the Minister or her delegate to determine rangatiratanga. The Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (Collective Redress Act) provides for collective redress in respect of a number of iwi forming the Tāmaki Collective. It recognises shared interests and provides shared redress to those iwi and hapu within the Tāmaki Collective, including by vesting the motu (and other lands) in Tūpuna Taonga o Tāmaki Makaurau Trust Ltd and vesting those back to the Crown; vesting the summit of the Rangitoto motu in fee simple to the same body; and requiring preparation of the Tāmaki Makaurau motu plan in consultation with the Tūpuna Taonga o Tāmaki Makaurau Trust. Rangatiratanga in respect of these motu is not formally conceded by other iwi. One, Ngāti Pāoa, concedes Ngāi Tai has “primary customary rights” in respect of the motu. The position of other iwi is unclear on the evidence. To the extent rangatiratanga remains uncertain, judicial review — based upon affidavit evidence only — is not a suitable mechanism for its determination.

6 Fullers has been operating ferry services to Rangitoto since 1988. It operates regular services using fast catamaran ferries capable of conveying 300 passengers. Fullers offers a bundled ferry and tour service to Rangitoto and an unbundled passage-only ferry service to both motu. It does not conduct tours on Motutapu. In 2013 the Department of Conservation (the Department) rebuilt the wharf on Rangitoto. Before that it obtained Fullers' commitment to continue to operate to Rangitoto — thereby justifying the Department's expenditure. Wharf fees charged by the Department doubled to recover the improvement costs. Fullers also co-funded a 600-metre boardwalk leading to the summit of Rangitoto and its concession conditions require it to maintain Rangitoto roads and the Flaxpoint Bridge.

7 MRT was established in November 1993. It is a charitable trust. It has carried out conservation projects to implement the Motutapu Restoration Plan prepared by the Department. It says its contributions are worth more than $70 million. It has, among other things, restored natural ecosystems and European sites including the Reade Homestead and historic military sites on Motutapu.

8 In December 2013 Fullers applied for a new concession to conduct tractor-transport shuttle services and guided walks on both motu. In October 2014 MRT applied for a concession to undertake small-scale guided walks on Motutapu. MRT's application was granted in June 2015, and Fullers' in August 2015. Each was for a five-year term. That was half what each had sought. But the decision-maker chose the five-year term to enable review in line with a new conservation management plan for Tāmaki Makaurau motu (under development) and because of the impending Ngāi Tai settlement. Each concession also contained conditions calculated to protect cultural interests of iwi claiming mana whenua over the motu.

9 Ngāi Tai was itself granted a concession at about the same time, to operate a small-scale tourist-guiding service on the motu. The term granted was nine years and eleven months.

Ngāi Tai's case

10 Ngāi Tai's position has evolved during the course of the concession application process and ensuing proceedings.

11 Its original opposition to the concessions was based on three grounds: that a concession should not be granted to undertake commercial activity on their ancestral motu to an entity unconnected to the islands; that Ngāi Tai sought to preserve economic opportunities for iwi on the motu; and that Fullers' staff mispronounced Te Reo Māori and had insufficient cultural knowledge of the motu.

12 Its pleaded case against the concessions was based on alleged errors of law by the decision-maker. Primarily, Ngāi Tai alleged these errors:

• (a) erroneous determinations that Ngāi Tai had no preferential entitlement to concessions and that its economic interests were an irrelevant consideration;

• (b) a failure to give effect to the Treaty principles of active protection, and to act reasonably and in good faith, by concluding that the concession grant to others would not remove the opportunity to the appellant to obtain similar concessions (and that the appellant should have “a period of complete protection from competition to establish its own guiding walk concession operation”); and

• (c) a failure to give sufficient weight and priority to the appellant's views in accordance with s 4 of the Conservation Act, the Hauraki Gulf Marine Park Act 2000 (HGMP Act), the Collective Redress Act and the Auckland Conservation Management Strategy 2014–2024.

13 Written submissions before us, however, narrowed the claim considerably. These focused on two propositions:

• (a) that the effect of ss 7 and 8 of the HGMP Act was that concessions should not be granted to Fullers and MRT “over the objections of the appellant”; and

• (b) that to the extent the impugned decisions were found to be erroneous in law, they should have been set aside and remitted to the decision-maker for reconsideration.

14 Those two propositions frame the issues for determination on this appeal.

Issue 1: Do ss 7 and 8 of the HGMP Act mean that concessions should not be granted to Fullers and MRT over the objections of the appellant?

15 Mr Cooke QC's primary argument for Ngāi Tai was that ss 7 and 8 of the HGMP Act meant the concessions should not have been granted to Fullers or MRT if Ngāi Tai objected, as they did. Fogarty J did not agree. Nor, we should indicate now, do we.

High Court judgment

16 The High Court judgment focussed, appropriately, on the decision of this Court in Ngāi Tahu Maori Trust Board v Director General of Conservation, also known as the Whales Case. 2 We discuss that decision in more detail below at [48]–[50] of this judgment. Fogarty J held that the Whales Case did not support a submission that s 4 confers a preference for Māori over non-Māori applicants, all other facts being equal, “[t]here is no Māori veto.” 3 Rather, he noted, judges have identified a “reasonableness in the context” test. 4

17 Fogarty J...