Tuna and Te Urewera Board (TUB), Trustees of Tuhoe (TUT) and Director-General of Conservation (DOC) - TUNA v TE UREWERA BOARD  NZHC 2924 [8 November 2022] – Application for judicial review.
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
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
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
introduces Mr Tuna in clause  of his judgment as follows:
 “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.”
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?
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.
then why would a Judge set out in some detail the identity of the applicant even
before considering the evidence presented to him?
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.
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.
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.
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.
What I find
particularly egregious is this case is the behaviour of DOC.
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.
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.
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.
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.
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.
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
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
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.
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.