Ngai Tai Ki Tamaki Tribal Trust v Minister of Conservation

JurisdictionNew Zealand
JudgeElias CJ,Glazebrook,O'Regan,Ellen France JJ,O'Regan J,William Young J
Judgment Date14 December 2018
Neutral Citation[2018] NZSC 122
Docket NumberSC 11/2018
CourtSupreme Court
Date14 December 2018
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

[2018] NZSC 122

Court:

Elias CJ, William Young, Glazebrook, O'Regan and Ellen France JJ

SC 11/2018

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Counsel:

J P Ferguson, A H C Warren and R A Siciliano for Appellant

V L Hardy and C D Tyson for First Respondent

A F Pilditch and D C S Morris for Second Respondent

S J M Mount QC and A R Longdill for Third Respondent

G M Illingworth QC and P T Beverley for Te Rūnanga o Ngāi Tahu as Intervener

  • A The appeal is allowed.

  • B We direct that the second respondent's application for a concession be reconsidered by the first respondent's delegate in light of this judgment. The licence awarded to the second respondent on 31 August 2015 will remain in force until that reconsideration has occurred.

  • C The decision of the first respondent's delegate granting a permit to the third respondent dated 15 October 2015 is quashed. We direct that the third respondent's application for a concession be reconsidered by the first respondent's delegate in light of this judgment.

  • D Costs are reserved.

JUDGMENT OF THE COURT
REASONS

Para No.

Elias CJ, Glazebrook, O'Regan and Ellen France JJ

[1]

William Young J

[111]

Elias CJ, Glazebrook, O'Regan and Ellen France JJ

(Given by O'Regan J)

Table of Contents

Para No.

Judicial review proceedings

[1]

Issues

[2]

Factual background

[4]

The challenged decisions

[11]

Fullers decision

[15]

MRT concession

[23]

The Ngāi Tai Trust's Te Haerenga concession and Ngāi Tai ki Tāmaki's aspirations

[28]

Summary

[30]

Statutory scheme

[32]

Reserves Act

[35]

Hauraki Gulf Marine Park Act

[36]

Part 3B of the Conservation Act

[41]

Auckland Conservation Management Strategy

[42]

Collective Redress Act and the Motu Plan

[43]

Ngāi Tai Settlement and Conservation Relationship Agreement

[44]

Section 4

[47]

Application of s 4 in this case

[56]

Were there errors of law?

[57]

The Courts below

[58]

Submissions

[61]

There were errors of law in the challenged decisions

[64]

Conservation General Policy

[76]

Mana whenua

[78]

Did the decisions nevertheless comply with s 4?

[82]

Courts below

[83]

Submissions

[85]

The decisions did not comply with s 4

[89]

Should a remedy be granted?

[101]

Court of Appeal

[101]

Submissions

[102]

A remedy should be granted

[105]

Result

[109]

Costs

[110]

Judicial review proceedings
1

Ngāi Tai ki Tāmaki Tribal Trust (the Ngāi Tai Trust) applied for judicial review of the decision of a delegate of the first respondent, the Minister of Conservation, granting concessions to Fullers Group Ltd and the Motutapu Island Restoration Trust (MRT) for commercial tour operations on Rangitoto and Motutapu. 1 Its claim failed in the High Court. 2 The High Court decision was upheld on appeal to the Court of Appeal. 3 This Court granted leave to appeal, the approved question being whether the Court of Appeal was correct to dismiss the Ngāi Tai Trust's appeal to that Court. 4 Te Rūnanga o Ngāi Tahu was given leave to intervene and we received both written and oral submissions from its counsel.

Issues
2

The High Court found that the decision-maker had made errors of law in the reasoning supporting the decisions and that finding was not overturned by the Court of Appeal. However, both Courts found that these errors had not affected the outcome. Those errors related to s 4 of the Conservation Act 1987, which requires that that Act be interpreted and administered as to give effect to the principles of the Treaty of Waitangi. 5 The High Court declined to grant relief and that decision was upheld by the Court of Appeal. The primary issue on appeal is whether relief ought to have been granted.

3

The analysis of that issue requires consideration of the application of s 4 to the decisions under review. The essential issue in the appeal is whether the Courts below were correct that the decisions did meet the requirements of that section, despite the errors of law just mentioned.

Factual background
4

Rangitoto and Motutapu are islands (motu) within the Tīkapa Moana/Hauraki Gulf. They are proximate to each other and connected by a short causeway. We will refer to Rangitoto and Motutapu together as “the Motu”. The majority of the land comprising the Motu is subject to the Reserves Act 1977, being land within the Rangitoto Island Scenic Reserve, the Ngā Pona-toru-a-Peretū Scenic Reserve (the summit of Rangitoto), or the Motutapu Island Recreation Reserve.

5

The Ngāi Tai Trust represents the iwi of Ngāi Tai ki Tāmaki. The rohe of Ngāi Tai ki Tāmaki extends across Tīkapa Moana/Hauraki Gulf and includes the ancestral motu of Rangitoto, Motutapu, and Motu-a-Ihenga (Motuihe), with which it has deep and long-standing connections. There is no dispute that from the mid-nineteenth century Ngāi Tai ki Tāmaki was marginalised from its ancestral islands following a series of transactions in which the Crown participated. 6

6

Ngāi Tai ki Tāmaki is part of Ngā Mana Whenua o Tāmaki Makaurau, a group of iwi and hapū that the Crown recognises as having claims based on historical breaches of the Treaty of Waitangi in the Tāmaki Makaurau region (the Tāmaki Collective). 7 While the Crown has pursued and continues to pursue settlement of these claims through negotiation with individual iwi and hapū, the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (the Collective Redress Act) was passed to provide redress relating to maunga, motu and lands “in respect of which all the iwi and hapū have interests” and “in respect of which all the iwi and hapū will share”. 8 The vesting of maunga in the Tūpuna Taonga o Tāmaki Makaurau Trust

(Tūpuna Taonga Trust) was a significant element of the cultural redress provided in that Act. The Tūpuna Taonga Trust is an entity set up to represent the Tāmaki Collective. The Collective Redress Act gave effect to a Deed of Settlement between the Crown and the Tāmaki Collective that was entered into in December 2012 (the Collective Redress Deed)
7

The Ngā Pona-toru-a-Peretū Scenic Reserve, which encompasses the summit of Rangitoto, was one such site vested in the Tūpuna Taonga Trust although it remains a reserve administered by DoC for the purposes of the Reserves Act. 9 The remaining land 10 on the Motu was temporarily vested in the Tūpuna Taonga Trust before revesting in the Crown 32 days later. 11 James Brown, the Chairperson of the Ngāi Tai Trust, gave evidence to the effect that the Ngāi Tai Trust, the iwi and its negotiators are very clear that, despite the collective nature of the redress provided under the Collective Redress Act, it is Ngāi Tai ki Tāmaki and not the Tāmaki Collective that has mana whenua and customary interests on the Motu. The extent to which other iwi or hapū have overlapping customary rights on the islands is not clear. 12 Ngāti Paoa has an historic and enduring relationship with Motutapu and disputes any suggestion of exclusive interests in Motutapu, despite acknowledging that “Ngāi Tai has a greater level of customary association with Motutapu”.

8

The only members of the Tāmaki Collective who participated in the consultation process in relation to the two decisions under challenge were Ngāi Tai ki

Tāmaki, Te Kawerau ā Maki, 13 Ngāti Whanaunga, 14 Ngāti Whatuā Ōrākei, 15 and Te Patukirikiri. 16 The Tāmaki Collective also participated in consultation
9

Ngāi Tai ki Tāmaki has also reached its own settlement with the Crown. The deed of settlement (the Ngāi Tai Settlement Deed) was entered into on 7 November 2015 and the legislation to give effect to that settlement, the Ngāi Tai ki Tāmaki Claims Settlement Act 2018 (the Ngāi Tai Settlement Act), came into force on 5 July 2018 and took effect from 27 September 2018. 17 Amongst other things, the settlement provides for the transfer of wāhi tapu sites on Motutapu and Motu-a-Ihenga to the Ngāi Tai ki Tāmaki Trust; 18 statutory acknowledgments of Ngāi Tai ki Tāmaki's relationship with Motutapu and the surrounding coastal marine area; 19 and a Conservation Relationship Agreement between Ngāi Tai ki Tāmaki and DoC. 20

10

Ngāi Tai ki Tāmaki is also a member of the Pare Hauraki Collective, which entered into a deed of settlement for collective redress on 2 August 2018.

The challenged decisions
11

The Ngāi Tai Trust seeks judicial review of two decisions to grant concessions pursuant to s 17Q of the Conservation Act. These were granted by a DoC official as delegate of the Minister. 21 The concession decisions were:

  • (a) The decision of 24 June 2015 to grant a permit for a period of five years allowing the MRT to conduct guided walking tours on the Motu. MRT subsequently requested to defer the term of its concession, resulting in a new decision made on 15 October 2015.

  • (b) The decision of 31 August 2015 to grant a licence for a period of five years allowing Fullers to conduct guided walking and tractor/trailer tours on Rangitoto.

12

The Ngāi Tai Trust itself had been granted a concession on 22 May 2014, to operate guided walking tours on the Motu. That concession is for a term of nine years and eleven months. This is discussed in more detail below. 22

13

Applications relating to the two challenged decisions, together with two similar applications relating to concessions on Rangitoto and Motu-a-Ihenga respectively, were referred to the same DoC report writer for consideration. The Ngāi Tai Trust's concession application does not appear to have been part of this consolidated group.

14

Prior to the preparation of the...

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