March 2022 Māori Law Review

Ngā whakahaere rauemi – natural resource management – appeal allowed – consultation and notification – Norman

Norman v Tūpuna Maunga Authority o Tāmaki Makaurau

Court of Appeal [2022] NZCA 30

3 March 2022

Application to appeal against a decision of the Tūpuna Maunga Authority o Tāmaki Makaurau ("Authority") to fell exotic trees and replace them with natives, and the decision of the Auckland Council to grant resource consent allowed.

Download Norman v Tūpuna Maunga o Tāmaki Makaurau Authority (842 KB PDF).

Whakataunga - Overview and result

Ngā whakahaere rauemi - natural resource management - appeal allowed - consultation and notification - observations about application of Conservation Act 1987 s 4
Date3 March 2022
CaseNorman v Tūpuna Maunga o Tāmaki Makaurau Authority (842 KB PDF)
Citation[2022] NZCA 30
CourtTe Kōti Pira - Court of Appeal
Judge(s)Cooper, Courtney and Goddard JJ
Earlier/later decisions
Legislation citedReserves Act 1977; Conservation Act 1987.
Cases citedNgāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122.
Overview and resultAppeal allowed from a High Court refusal to grant judicial review of a decision of the Tūpuna Maunga Authority o Tamaki Makaurau ("Authority") to fell exotic trees and replace them with natives, and the related Auckland Council decision to grant a resource consent. The appellants sought judicial review of the Authority’s decision to remove the trees, and of the Council’s decision that the relevant resource consent applications could be determined without being publicly notified or subject to limited notification under the Resource Management Act 1991 ("RMA").
The Authority had made the decision to remove 345 exotic trees as part of an ecological restoration project involving the retention of all existing indigenous trees and the planting of 13,000 further indigenous trees and plants ("project") on Ōwairaka, which it carried out in its capacity as the administering body of Ōwairaka under the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 ("the Collective Redress Act").
Held, appeal allowed and the Authority's decision set aside on two grounds:

  • the Authority had not carried out the consultation required by statute; and
  • the application should have been publicly notified under the RMA.

A further ground, that other provisions in the Reserves Act were not complied with in the Authority's decision-making, was rejected on the basis the provisions in question permitted the approach taken by the Authority. In the course of addressing this ground the Court made observations about the application of section 4 of the Conservation Act 1987 to relevant decisions under the Reserves Act, while declining to decide the point. The Reserves Act is one of the Acts listed in Sch 1 to the Conservation Act. Section 4 of the Conservation Act provides for the Conservation Act to be interpreted and administered as to give effect to the principles of the Treaty of Waitangi. Through caselaw this has been found to apply to the legislation in Sch 1 so far as circumstances apply.  Counsel for the Authority argued in the High Court that s 4 of the Conservation Act added further weight and support to the Authority because for mana whenua the project is a tangible expression of Treaty principles in action.
However, without deciding the point, the Court indicated it was inclined to agree with counsel for the appellants that the primary focus of s 4 of the Conservation Act is the interpretation and administration of that Act, with the Court noting further at [171] that:
"While the Reserves Act appears in the list of enactments administered by the Department of Conservation, it is not clear how that could have the consequence of applying s 4 to decisions of an independent statutory body such as those at issue in this case. Nor is it clear what would be added by the application of s 4 given the express and detailed statutory provisions in the Collective Redress Act which have been enacted to give effect to the settlement of important Treaty claims. In agreement with the Judge, we do not consider it necessary to resolve these issues here. While we acknowledge the Supreme Court’s statements in Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation as to the powerful effect of s 4 of the Conservation Act in the context of decisions made by the Department of Conservation, we consider it preferable to leave questions concerning the potential  application of s 4 to decision makers not acting under that Act to cases where it is necessary to resolve them."