Hart, De Thierry, Macdonald, Palatchie, Walker, Meihana and De Thierry-Lukitau v Marlborough District Council

The applicants in this proceeding are the trustees of Te Rūnanga a Rangitāne o Wairau Trust, a charitable trust which is the legal representative of the Rangitāne o Wairau iwi (Rangitāne).

In March 2023, the Marlborough District Council (the Council) adopted the East Coast Beach Vehicle Bylaw 2023 (the Bylaw). The Bylaw limits (in considerable part prohibiting) the use of motorised vehicles along some of the north-eastern coast of Te Wai Pounamu | the South Island (the Bylaw Area). Rangitāne have recognised customary interests in the Bylaw Area. Rangitāne say the Bylaw prevents iwi members from exercising customary rights and responsibilities in the Bylaw Area.

Rangitāne challenges, under the Judicial Review Procedure Act 2016 and the Bylaws Act 1910:

Rangitāne ask the Court to grant relief by amending the Bylaw so that it does not apply to Rangitāne when they are exercising customary rights in the Bylaw Area.

Rangitāne were unsuccessful in an application for interim relief. 1 This judgment determines their substantive claim, which is opposed by the Council.

I dismiss the claim. I conclude that the Bylaw is lawful and the challenges to the lawfulness and procedural fairness of the decision by the Council to adopt and implement the Bylaw are not made out. This is with the exception of a breach of a legitimate expectation; however, I consider it is not appropriate to grant a remedy in the circumstances.

Rangitāne have resided in Te Tau Ihu (the northern South Island) for centuries, occupying a territory from Waiau-toa | Clarence River in the south to Wairau | Marlborough, including the Nelson Lakes, and north to Kaituna and the Marlborough Sounds and west into the Whakatū | Nelson area.

From 1839 onwards, actions of the New Zealand Company and the Crown progressively deprived Rangitāne of their land until Rangitāne were effectively rendered landless. In 2008, the Waitangi Tribunal reported that this deprivation was invalid in both British and Māori law as well as being inconsistent with te Tiriti o Waitangi | Treaty of Waitangi (the Treaty of Waitangi or Treaty). 2 On 4 December 2010, Rangitāne entered into a Deed of Settlement with the Crown. The settlement legislation gives effect to the settlement of all historical claims from Rangitāne resulting from acts or omissions by the Crown prior to 21 September 1992. 3

Rangitāne are engaging with the Crown in relation to recognition of their customary rights under the Marine and Coastal Area (Takutai Moana) Act 2011 and have filed a claim in the High Court to this end. It is common ground between the parties that Rangitāne have fishing rights recognised in statute. 4

There are other iwi throughout the Marlborough region including Ngāti Kuri, a hapū of Ngāi Tahu, represented by Te Rūnanga o Kaikōura and Te Rūnanga o Ngāi Tahu. Rangitāne and Ngāti Kuri/Ngāi Tahu contest the nature of their respective customary associations with the Bylaw Area, and this has arisen in other contexts identified by Rangitāne. 5

On 14 November 2016, a significant earthquake occurred 60 kilometres west of Kaikōura, resulting in an extensive uplift of land on the east coast of the South Island, within the Marlborough District. This made the beach in that area more accessible to vehicles (although the extent of accessibility prior to the earthquake is contested between the parties).

Following concerns raised by residents of the Marlborough District, particularly the East Coast Protection Group (ECPG), as to potential impacts from the increase in the use of vehicles on public beaches, the Council began an investigation into the impacts of the earthquake, undertaking policy assessments in respect of what tools were available to protect the area.

Following a technical workshop held by the Council and the Department of Conservation (DoC), on 22 March 2019, the Council released the first version of a report entitled “Marlborough's East Coast – Technical Report” (the Technical Report or Report). The purpose of the Technical Report was to form, with other documents, the “basis for consultation and decision-making on what if any intervention is required to protect the values and significant habitats that are present along Marlborough's East Coast Environment”.

In the ‘cultural values’ section of the first version of the Technical Report, the status of Rangitāne within Marlborough is described as one of “long standing connection”, while Ngāti Kuri is described as having mana whenua. Ngāti Kuri were invited to draft the cultural values section of the fourth version of the Technical Report, released on 24 June 2021. This section of the report says “Ngāti Kuri are the tangata whenua who have mana whenua and mana moana” in the Bylaw area, and that Rangitāne and two other iwi “have interests in the area”. This section was preceded by a disclaimer that Ngāti Kuri (through Te Rūnanga o Kaikōura) had provided the information for that section. The fifth and final version of the Report, completed in July 2021, was amended somewhat following concerns raised by Rangitāne. This version did not specifically refer to Rangitāne but acknowledged that “there are Te Tau Ihu iwi who may consider the area of the draft Bylaw within their rohe as tangata whenua” and that “these discussions are ongoing”. Rangitāne contested these descriptions throughout the development of the Bylaw.

In November 2019, the Council, having prepared an Options and Issues Paper and considered possible regulatory solutions available to it in relation to vehicle access to the East Coast, decided to commence a bylaw-making process. From about this time, Rangitāne expressed concern to the Council as to their lack of involvement in the process and the fact that it appeared to be progressing on the basis of a misunderstanding as to their cultural status in the area. The Council engaged with Rangitāne and other iwi during 2020, during which Rangitāne put their position on the proposed bylaw to the Council. At a meeting on 10 December 2020, the Council decided that a bylaw was the most appropriate option to address the identified risks. 6 A draft bylaw and necessary supporting material were prepared.

On 8 July 2021, the Council published a Statement of Proposal, which included a draft bylaw that imposed a total ban on all vehicles in the Bylaw Area, and the fifth version of the Technical Report. The draft bylaw was notified for public consultation, using the special consultative procedure provided for in s 83 of the Local Government Act 2002.

The Council decided to appoint a panel of three commissioners to hear submissions on the draft bylaw and make recommendations to the Council (the Hearing Panel or Panel). In August 2021, the Council offered both Rangitāne and Ngāti Kuri the opportunity to nominate a representative to the Hearing Panel, on the condition that they would not be able to make a submission to the Hearing Panel on the draft bylaw. Ngāti Kuri nominated a representative, but Rangitāne did not, as they wished to make a submission.

Rangitāne made written and oral submissions to the Hearing Panel in 2021 and 2022. These submissions raised procedural concerns about inadequate engagement with Rangitāne and a lack of understanding of Rangitāne's customary interests in the Bylaw Area and substantive concerns that the draft bylaw would prevent them from accessing...