Tūhoe vs Tūhoe - the Rumble in the Jungle
The controversial removal of 48 huts from Te Urewera has now spilled over into the courts highlighting splits within Tūhoe and the failings of the so-called co-governance arrangements.
Perhaps inevitably, the controversial decision by the Tūhoe settlement entity, Te Uru Taumatua (TUT), to remove 48 huts from Te Urewera has spilled over into the courts. On Tuesday afternoon, a judge sitting in the Rotorua High Court issued an interim injunction halting the destruction of the huts pending a full hearing of the matter.
Although the granting of the injunction does not give any indication of the likelihood of success in the substantive hearing, the short judgment does shed more light on some of the details surrounding the operations of TUT. The urgent nature of the injunction was underlined when TUT confirmed to the Court yesterday that it had already destroyed or removed 29 huts.
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The application was brought by Wharenui Clyde Tuna, a member of Tūhoe who objected to the “hasty destruction by fire of the hut network throughout Te Urewera by the second respondent, Tūhoe – Te Uru Taumatua (TUT)”.
The Director-General of Conservation is named as the Third Respondent to the application underlining the uncomfortable position that the Department of Conservation finds itself in having supported, at least officially, the removal of the huts.
In my article on Monday last week, I argued that the governing legislation is deficient in a number of respects and that Te Urewera is not an example of co-governance but of Tūhoe-governance. The substantive hearing of this application has the potential to demonstrate quite how powerless the Crown is in this arrangement.
The judgment sets out the relevant board minutes of a TUT meeting on 15 February 2022:
Tūhoe wish to free DOC from its H&S legal obligations by working together to remove their entire assets structures infrastructure from Te Urewera. Tūhoe will start by collating and returning all DOC equipment on loan and purchase their own. Then as the shared annual operations plan, assist with the removal of huts and eventually bridges. There are at least 10 huts not fit for purpose – not repairable. DOC to make a decision about the others, work out a sequence and cost. Tūhoe have no want or need to retain the existing structures new constructions to be financed by Tūhoe. The removal of all assets is very symbolic to the legislation. DOC agreement to this focus for 2022-23 would restart open conversation with Tūhoe.
Note the reference in the minutes to the eventual removal of bridges, and the final statement that if DOC agrees with the proposal then this would restart “open conversation” with Tūhoe. This seems a long way from the lofty intentions expressed by then Attorney-General Chris Finlayson at the third reading of the Te Urewera Bill when he stated that the board, “must at all times promote unanimous or consensus decision-making and the highest level of collaboration”.
The judgment then sets out the following discussion which is recorded in the minutes of a TUT meeting on 17 May 2022:
The way ahead – A way ahead is tricky because of the ever presence of too many unresolved serious troubles that have brought us to this point of despair. Needing to know if we can, do we want to, how do we fix that back stuff so we have reason hope and trust to go ahead? These can be snakes and ladders. We need more than kind words and good sentiments. We need action on every commitment the decommissioning of DOC structures the exit of DOC infrastructure is that action we need actioned.
The application then lists the purported errors in process made by TUT:
Failed to act in accordance with the principles stated in section 5(1) of the Act, including the preservation of the historical and cultural heritage of Te Urewera.
Failed to take into account the requirement in section 5(2) of the Act to act so that the public has freedom of entry and access to Te Urewera, subject to any conditions and restrictions that may be necessary to achieve the purpose of the Act or for public safety.
Failed to consider and provide appropriately for the relationship of iwi and hapū with their culture and traditions with Te Urewera, as it is required to do so by section 20 of the Act.
Failed to consult with hapū.
Failed to consult with the wider public regarding the potential impact on free public access to Te Urewera.
On their face, these seem to be reasonable complaints, and these failings do appear to breach the spirit of the Act. However there is enough ambiguity in the Act that it is debatable whether the letter of the law has actually been breached.
For instance, TUT is entitled under the Act to exercise its powers so long as the public has “freedom of entry and access to Te Urewera”. Thus whilst the removal of 48 huts undeniably has an adverse effect on access, it is not a denial of access. I doubt, however, that Parliament contemplated that the Act would permit the wholesale removal of DOC infrastructure without any concrete plans for its replacement.
This is why the Act is deficient and needs urgent amendment.
Of more concern to TUT and the Department of Conservation, however, should be the highly embarrassing and damaging revelation that despite it being a statutory requirement, no operational plan has been prepared for 2022.
Section 53 of the Act, states: “Each year the chief executive and the Director-General must prepare an annual operational plan for the operational management of Te Urewera in the following year”.
Section 95 of the Act provides that Crown improvements remain vested in the Crown and may only be demolished in a manner that is consistent with the management plan and the annual operational plan. The judge notes that in the absence of an operational plan prepared in accordance with section 53, a condition of the lawful demolition of the structures has not been met and, accordingly, such demolition is unlawful.
To support the claim of a lack of an operational plan, an email sent on 3 November 2022 from the Department of Conservation was provided to the Court which states:
We are unable to provide a copy of the current operational plan for Te Urewera that meets the criteria you specified (a copy of any current operational plan for Te Urewera prepared under s 53 of the Te Urewera Act by the Chief Executive of TUT and the Director-General of Conservation) because, for the 2022-2023 year DOC and TUT have not worked together on a draft annual operational plan for the Board’s consideration.
The fact that this statutory requirement has not been complied with by the Director-General should raise questions as to whether her position remains tenable. It should also raise serious questions as to how the Minister of Conservation and Director-General could have supported TUT’s plans for the removal of huts when they were fully aware that they were not compliant with the requirements of the Act.
Why is it left to Mr Tuna and other concerned members of Tūhoe and the public to raise the alarm when the Crown sits idly by?
The application was made on a without notice basis because of its urgency, but TUT and the Director-General were served with the proceeding to allow them to have some input. The judge described the injunction as an “interim interim order” pending a hearing of the application for an interim order which will be argued by all parties.
Although the judge noted that the interim relief granted by his ruling will not effectively determine the proceeding, it is difficult to see how TUT and the Department of Conservation will overcome the lack of an operational plan.
Te Urewera is held out by many as a model of co-governance. This case will be a timely review of just how well it is working.