Graeme Reeves: Tuna and Te Urewera Board

Tuna and Te Urewera Board (TUB), Trustees of Tuhoe (TUT) and Director-General of Conservation (DOC) - TUNA v TE UREWERA BOARD [2022] NZHC 2924 [8 November 2022] – Application for judicial review.

The applicant in this matter was Mr Tuna a resident of the Urewera.  Mr Tuna objected to the hasty destruction by fire of the network of huts throughout the Urewera by TUT the operational arm of TUB.

Mr Tuna asked the Court to grant an interim order requiring TUT to,” immediately cease its programme of destruction of listed huts pending final disposition of this proceeding.”

He was successful.  I congratulate him for having the courage to bring this proceeding on behalf of all New Zealanders.

The case, even at this early stage not knowing what the ultimate outcome might be raises some interesting issues worthy, in my opinion, of discussion.

IDENTITY OF APPLICANT

Justice Woolford introduces Mr Tuna in clause [1] of his judgment as follows:

[1]  “The applicant, Wharenui Clyde Tuna’s whakapapa connects him to all the hapu of Waimana and other hapu across Te Urewera. He has a relationship with Te Urewera that transcends the physical contemporary world, a relationship that is founded in the past, present and future generational connection with Te Urewera. Te Urewera forms part of his spiritual identity, it brings spiritual enlightenment and contentedness.”

This case is essentially about one issue. Did TUB, TUT and DOC breach their statutory duties as laid down in the provision of the Te Urewera Act 2014?

The identity of the applicant should be and is irrelevant in deciding the case. The case will be decided on the facts alone not the identity of the applicant.

One wonders then why would a Judge set out in some detail the identity of the applicant even before considering the evidence presented to him?

Justice is said to be blind. Justice is to be done and to be seen to be done impartially and without regard to the identity of the applicant/plaintiff, respondent/ defendant as the case may be.

By including Mr Tuna’s ethnicity and religious beliefs in some detail before considering the facts leaves the Judge open to the criticism that identity has played a part in his decision making processes.

Had the application been made by a person of another ethnicity and other religious beliefs would the judge have set those out in the same way as he has in this case is an open question which should not, in my opinion, need to be asked.

Unfortunately, identity in the Justice system and just about every other sphere of life in New Zealand is becoming dangerously prevalent.

There is no special class of citizen in New Zealand. All New Zealand citizens are equal under the law. This right to equality is enshrined in the Bill of Rights Act 1688 and the New Zealand Bill of Rights Act 1990.

 It was a right first conferred individually on all Maori people by article 3 of the Treaty of Waitangi which was signed by circa 540 chiefs in 1840.

I make the point again. I have no criticism of Mr Tuna. He has done the right thing in bringing his grievance to the Court for determination and I congratulate him for his actions.

DOC

What I find particularly egregious is this case is the behaviour of DOC.

Although the enabling legislation vested governance and management in TUB all of the Crown assets with the Te Urewera (including the huts) remain in the ownership of the Crown.

The Crown’s ownership is subject to the chief Executive of TUT and DOC to use, occupy, access, maintain, remove or demolish them but only in accordance with an agreed management plan of TUB and the annual operational  plan of TUB.

The case presented by Mr Tuna alleges that none of the proper processes as set out in the enabling legislation were followed and he presented evidence from DOC which clearly prove that no annual operational plan had been prepared in accordance with s53 of the enabling legislation and accordingly the demolition of 15 to 20 huts was unlawful.

DOC knew that there was no operational plan and the destruction of the huts was unlawful but took no action to stop the wilful and illegal destruction of Crown property.

DOC is the agent of the Crown (which owns the property on behalf of all New Zealanders) and therefore has fiduciary duties (like a trustee) to protect the property which it owns on own behalf.

In my opinion such wilful neglect by the officers of DOC requires that there should be consequences for those officers in the same way as there would be trustees and indeed directors of companies where directors have failed in their duties to the shareholders of the company.

It should not have been left to Mr Tuna to bring proceedings to stop the wanton destruction of Crown property, it should have been DOC and it should have been done promptly.

This matter is yet to be set down for a substantive hearing. When it is it is to hoped that the Court will make comment on the failure of DOC to discharge its statutory duties as well as sanctioning TUB and that consequences will flow to both offenders.

It is also to hoped that the fact the taxpayers of New Zealand who provide TUT with $2million p.a. via DOC for the maintenance of the assets owned by the Crown will receive an appropriate amount of compensation from TUB who instead of spending the funds on maintenance of the huts used it to burned them down.

Co- Governance

This case should be a timely reminder for our politicians and bureaucrats that the principles of co-governance  can easily be corrupted and that is especially so when the parties are not subject to the  same rigorous transparency and accountability mechanisms as are elected representatives, trustees and company directors.

In this case it is clear that the bureaucrats were impotent in the face of TUT which is an ideologically motivated tribal entity which has no regard for the law of New Zealand or for the precepts contained in Article 3 of the Treaty.

Graeme Reeves is a lawyer and former National MP.