Let's Combine Bylaws, Beaches, and Customary Interests
Let's Combine Bylaws, Beaches, and Customary Interests
Tuesday 25 March, 2025
In Hart v Marlborough District Council [2025] NZHC 47, the trustees of Te Runanga a Rangitāne o Wairau Trust, a charitable trust representing the Rangitāne o Wairau iwi (Rangitāne), unsuccessfully challenged the lawfulness and procedural fairness of a decision by the Council to adopt the East Coast Beach Vehicle Bylaw 2023. The Bylaw limits the use of motorised vehicles along parts of the coast in which Rangitāne have recognised customary interests, and Rangitāne say it prevents iwi members from exercising customary rights and responsibilities.
One of the grounds of challenge was that the Council had an obligation to exercise its bylaw-making powers under the Land Transport Act 1998 and the Local Government Act 2002 (LGA) in a manner that preserved the ability of Rangitāne to exercise their customary rights as guaranteed by Article 2 of the Treaty of Waitangi. This challenge relied on an argument that the Council is a delegate of the Crown and so assumes the Crown’s obligations under the Treaty of Waitangi.
The other ground of challenge asserted that the process followed by Council breached its decision-making and consultation obligations under Part 6 LGA. Rangitāne had refused an offer to be represented on the Hearing Panel evaluating submissions on the Bylaw in favour of preserving its right to make submissions. This was in contrast to the position taken by another iwi, Ngāti Kuri, which was recognised by the Council as having mana whenua and mana moana status. Much of the argument in the proceedings centred on the suggestion that the process adopted by Council advantaged the interests of Ngāti Kuri over that of Rangitāne.
Treaty obligations
After reviewing cases in which the legal understanding of the Treaty in relation to organisations other than the Crown had been considered, the Court concluded that the Council did not owe Rangitāne Treaty obligations beyond those explicitly included in the LGA. This primarily refers to the obligation in section 4 of the LGA to “recognise and respect” the Crown’s responsibility to take account of Treaty principles and to maintain and improve opportunities for Māori to contribute to local government decision-making processes. The Court concluded that the proper focus of the claim by Rangitāne as to compliance with the Treaty is whether the Council had breached its obligations under Part 6 of the LGA.
Part 6 compliance
Although section 77(1)(c) LGA requires a local authority to take into account the relationship of Māori with their land and water when making significant decisions relating to that land or water, the Court found that the obligation to be informed of the interests held by Rangitāne did not require Council to gather information to be informed of those interests. After considering the evidence the Court found that the final version of a technical report (Report) (which was the basis for assessing the impacts and implications of the Bylaw) and the Hearing Panel report to Council specifically detailed the sites of significance to Rangitāne, and that s77(1)(c) did not require the Council to determine the competing claims of cultural status by Ngāti Kuri and Rangitāne.
Rangitāne submitted that the Council did not properly or correctly identify their interests in the area regulated by the Bylaw and therefore could not properly have considered their views. But the Court found otherwise after reviewing the evidence, which included acknowledging and identifying Rangitāne interests in the Bylaw area.
The Court did not accept that the lack of any written record of the Council undertaking its judgements under section 79 LGA about how to achieve compliance with section 77 and 78 meant that it had failed to comply with those provisions. Although Council assessed the proposal and eventual decision as significant, it had complied with those sections and not exercised its discretion to limit the extent and nature of its obligations. Therefore, it was not necessary to adopt a high level of formal procedural compliance by recording the reasons for its approach under s 79. The Court further found s79 to be “concerned with making judgments about the decision-making process at a high level, rather than in respect of each option.”
In circumstances where Rangitāne asserted the status attributed to it in the Report was inconsistent with the Marlborough Regional Policy Statement, the Court said that section 80 LGA contains a “significance threshold” such that it only applies to “decisions that are significantly inconsistent with or are anticipated to have consequences that will be significantly inconsistent with, the qualifying policy or plan”. The Court found that threshold had not been established.
Rangitāne further asserted that the requirement of s81(1) LGA, to provide opportunities for Māori to contribute to the decision-making process, had been breached because they only had the option to participate on the same basis as the rest of the community. However, the Court found this not to be the case, the evidence showed the Council undertook extensive consultation with Rangitāne. Commenting on the contrasting treatment of Ngāti Kuri, the Court did not consider that section 81 requires precise parity of opportunities between iwi to contribute to the decision-making process.
The Court dismissed the assertion by Rangitāne that Council erred in not having a process to consult with Māori pre-notification of the Bylaw. Section 82(1)(c) and (e) LGA contain a temporal requirement in relation to when each part of consultation must occur such that s82 only requires consultation to occur at a point where the outcomes of consultation can be considered in the decision being made.
Comment
The case provides a useful examination of the responsibility owed by local authorities to Māori when making significant decisions that may have an impact on their relationship to land or bodies of water. It also helps to clarify the role of local authorities in relation to the Treaty of Waitangi under the provisions of the LGA.
