Hart v Marlborough District Council [2023] NZHC 2714 (29 September 2023)

Last Updated: 2 November 2023

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2023-406-16 [2023] NZHC 2714

IN THE MATTER	of an Application for Relief under the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016 and seeking Orders under the Bylaws Act 1910 and an Application for Interim Injunction under High Court Rule 7.53
BETWEEN	CALVIN TUI HART, JANIS BARBARA DE THIERRY, HAYSLEY KENNY MACDONALD, RIKI RAYMOND PALATCHIE, KEELAN MURRAY JAMES WALKER, PETER NATHAN MEIHANA AND WIRIHANA MICHELLE DE THIERRY-LUKITAU Applicants
AND	MARLBOROUGH DISTRICT COUNCIL Respondent

Hearing:	8 September 2023
Appearances:	M J Radich and S A Wadworth for Applicants S V McKechnie for Respondent
Judgment:	29 September 2023

JUDGMENT OF McQUEEN J

HART & ORS, v MARLBOROUGH DISTRICT COUNCIL [2023] NZHC 2714 [29 September 2023]

Table of Contents

Para Nos

Factual background [5]

Rangitāne o Wairau [5]
Other interests in the relevant area [10]
The development of the Bylaw [12]
The adoption of the Bylaw [24]

Substantive claim and application for interim relief [33]

Rangitāne’s evidence [38]

Mr Hebberd [39]
Mr Abbott [47]
Ms Neal [48]

The Council’s evidence [50]

Mr Wheeler [51]
Ms Edmonds [57]

The parties’ submissions [64]

Rangitāne [64]
The Council [71]

The correct approach to Rangitāne’s application for interim relief [78]

Does Rangitāne have a position to preserve? [84]

The strength of Rangitāne’s case [92]

The Council’s power to prevent Rangitāne from exercising customary

rights and the Council’s obligations under the Treaty of Waitangi [96] The Council’s differential treatment of Ngāi Tahu/Ngāti Kuri [103] Rangitāne’s legitimate expectations [112]

The public and private repercussions of granting relief [113]

The interim relief sought [115]
Community issues and prejudice to others [117]
Delay in seeking interim relief [118]
Expected duration of interim relief [119]

Consideration of all the circumstances and the overall justice of the case [121]

Result [128]

Costs [129]

• [1] In this proceeding, representatives of Te Rūnanga a Rangitāne o Wairau Trust (Rangitāne/the Trust) seek that the Marlborough District Council East Coast Beach Vehicle Bylaw 2023 (the Bylaw) be set aside or quashed. The Bylaw prohibits the use of motorised vehicles along a portion of the north-eastern coast of Te Waipounamu | the South Island, which is approximately 38 kilometres long, an area in which Rangitāne has recognised customary interests (the Bylaw area). Rangitāne alleges that the Bylaw prevents iwi members from exercising customary rights and responsibilities in the Bylaw area.

• [2] The matter currently before the Court is an application by Rangitāne for interim relief. Rangitāne seeks an order suspending the operation of the Bylaw until the determination of their substantive application, which is set down for hearing on 20 and 21 March 2024.

• [3] The application for interim relief is opposed by the Marlborough District Council (the Council), which says that the Bylaw does not prevent Rangitāne from accessing their sites of significance or from exercising customary rights, including fishing. It says that any prejudice to Rangitāne because of the Bylaw is limited, and that there would be significant prejudice to the Council, the community, and the environment if the interim relief sought was to be granted.

• [4] For the reasons below, I consider that Rangitāne’s application for interim relief should be dismissed.

Factual background

Rangitāne o Wairau¹

• [5] Rangitāne tūpuna arrived at Mahia in Aotearoa New Zealand on the Kurahaupō waka. They moved progressively south into Wairarapa and Te Whanganui-a-Tara. It is said that under the leadership of Rangitāne chiefs, Te Huataki, Tukauae, Te Whakamana and Te Rerewa, Rangitāne crossed Te Moana o Raukawa | Cook Strait, and settled in the northern South Island, or Te Tauihu. For many generations,

¹ See Ngāti Apa ki te Rā Tō, Ngāti Kuia, and Rangitāne o Wairau Claims Settlement Act 2014, s 14.

Rangitāne have resided in Te Tauihu, 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.

• [6] From 1839 onwards, actions of the New Zealand Company and the Crown progressively deprived Rangitāne of their land. When the New Zealand Company purported to purchase the entire northern South Island, Rangitāne were not consulted. When that purchase was investigated, the Crown did not investigate Rangitāne’s rights before granting land to the New Zealand Company. Nor did Rangitāne benefit from further payments made by the New Zealand Company or a share in the ‘Nelson Tenths’ reserves that were set aside from the land granted to the New Zealand Company by the Crown. Then, between 1847 and 1856, the Crown facilitated further purchases on which Rangitāne were not consulted.

• [7] Following unsuccessful applications to the Native Land Court in the late 19th century, Rangitāne were effectively rendered landless. Although the Crown did attempt to alleviate their position through the provision of land reserves, these were in isolated locations, of poor quality, and were unable to be developed for economic use. This resulted in Rangitāne’s economic marginalisation.

• [8] The Waitangi Tribunal heard the claims of all iwi with interests in the northern South Island between August 2000 and March 2004, and released its final report in 2008.² The Council provided support to Rangitāne to present their claim before the Waitangi Tribunal. The Tribunal considered that:³

...all eight iwi of Te Tau Ihu – Ngati Apa, Rangitane, Ngati Kuia, Ngati Toa Rangatira, Ngati Rarua, Ngati Tama, Te Atiawa, and Ngati Koata – had valid customary rights when the Treaty was signed in 1840. Those rights, and the customary law from which they were derived, were protected and guaranteed by the Treaty. This was acknowledged by the British Government of the day. Despite that acknowledgement, the Crown acquired the great bulk of Te Tau Ihu lands and resources very quickly, without finding out the correct right holders or obtaining their full and free consent. Partly as a result, the Crown’s massive purchases of millions of acres were invalid in both British and Maori law, and inconsistent with the Treaty.

2. See Waitangi Tribunal Te Tau Ihu o Te Waka a Maui Report on Northern South Island Claims (Wai 785, 2008).

³ At xv.

• [9] Following negotiation, Rangitāne entered into a Deed of Settlement with the Crown which was signed on 4 December 2010. Rangitāne were represented by the Trust in their settlement negotiations with the Crown. The Deed of Settlement was then passed into law in 2014 through the Ngāti Apa ki te Rā Tō, Ngāti Kuia, and Rangitāne o Wairau Claims Settlement Act 2014. The settlement legislation is a full and final settlement of all historical claims from Rangitāne resulting from acts or omissions by the Crown prior to 21 September 1992.

Other interests in the relevant area

• [10] There are other iwi throughout the Marlborough Region, including the eight iwi of Te Tauihu, and Ngāti Kuri. Ngāti Kuri is a hapū of Ngāi Tahu represented by Te Rūnanga o Kaikōura and Te Rūnanga o Ngāi Tahu.

• [11] As will become apparent, there are differences of opinion between (at least) Rangitāne and Ngāi Tahu/Ngāti Kuri as to the nature of their interests in the Bylaw area, and also between Rangitāne and the Council as to how those differences were addressed in the development of the Bylaw. However, Rangitāne and the Council are clear that resolution of the question of the nature of and/or relative strengths of the customary interests of Rangitāne and Ngāi Tahu/Ngāti Kuri in the relevant area is not an issue to be determined in this proceeding either at the present stage, or on the substantive hearing. Although there is necessarily some reference in this judgment to the different perspectives on these issues, such references are not to be understood as the Court making any findings about the position.

The development of the Bylaw

• [12] On 14 November 2016, a significant earthquake occurred 60 kilometres south- west of Kaikōura at a depth of approximately 15 kilometres. That earthquake resulted in an extensive uplift of land on the east coast of the South Island, within the Marlborough District, thereby making the beach in that area more accessible to vehicles (although the extent of accessibility prior to the earthquake is contested between the parties).
• [13] Following concerns raised by residents of the Marlborough District, particularly the ‘East Coast Protection Group’, as to the potential impacts from the increase in public use of beaches in the Marlborough District, particularly the use of vehicles, the Council began an investigation into the impacts of the earthquake, undertaking policy assessments in respect of what tools were available for protection of the area.

• [14] On 22 March 2019, the Council released the first version of a report entitled ‘Marlborough’s East Coast—Technical Report’ (the Technical Report). The purpose of the Technical Report was said 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.” It appears that this document was not initially provided by the Council to Rangitāne and that Rangitāne was not consulted about its contents. At least the first version of the Technical Report described the status of Rangitāne within Marlborough as one of “long standing connection”, while Ngāti Kuri/Ngāi Tahu were described as mana whenua.

• [15] There appear to be five versions of the Technical Report concluding with an ostensibly final version completed in July 2021. This version still states that Ngāti Kuri are the tangata whenua who have mana whenua and mana moana in the area. Rather than referring to Rangitāne as have a longstanding connection to the area, the Technical Report has an acknowledgment that “there are Te Tau Ihu iwi who may consider the area of the draft Bylaw within their rohe as tangata whenua”. Rangitāne says that Ngāti Kuri were asked to draft cultural information for the Technical Report. The manner in which Rangitāne were described in the Technical Report was contested by Rangitāne throughout the development of the Bylaw.

• [16] In November 2019, having considered several options, the Council decided to commence a bylaw process in relation to motor vehicle use along parts of Marlborough’s north-eastern coastline. From about this time, Rangitāne expressed concern 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 status in the area. Rangitāne put their position on the proposed bylaw to the Council at this time, and the

Council engaged with Rangitāne and other iwi throughout 2020. The Council admits that throughout this time it was aware that the area contained within the proposed bylaw was culturally significant to Rangitāne.

• [17] On 8 July 2021, the Council opened public consultation on a draft bylaw for the period between 15 July 2021 and 8 September 2021. What was proposed for the purposes of consultation was a total ban on all motor vehicles using the beach along the north-eastern coastline, from a point beginning at the Awatere River Mouth and ending at the Waima River Mouth. The Council contemplated delegating recommendatory powers to three Commissioners who would sit as a panel (the Hearing Panel), and eventually did so.

• [18] In August 2021, the Council offered both Rangitāne and Ngāti Kuri the opportunity to appoint a representative to the Hearing Panel. This offer was made on a conditional basis, in that if they nominated a representative for the Hearing Panel, then they could not make a submission to the Hearing Panel on the draft bylaw. Rangitāne decided not to appoint a representative in lieu of being able to make a submission but Ngāti Kuri did take up that offer, and appointed a representative.

• [19] On 8 September 2021, Rangitāne made a written submission in the consultation process, raising procedural concerns about inadequate engagement with Rangitāne and substantive concerns that the Bylaw would prevent them from accessing areas of customary and cultural importance. Rangitāne proposed a variation to the Bylaw so that it included an exemption for tangata whenua exercising customary rights.

• [20] Ngāi Tahu wrote to the Council in October 2021 explaining their view that the Council had appropriately approached the status of Ngāi Tahu in relation to the Bylaw area, expressing support for the Council’s consultation with Ngāti Kuri and indicating that for this reason, Ngāi Tahu did not need to make a submission on the proposed Bylaw.

• [21] In November 2021, the Hearing Panel was appointed to hear further submissions and to make recommendations to the Council on the draft bylaw. As

noted, the Commissioners on the Hearing Panel included a representative of Ngāti Kuri. A total of 193 submissions were received in the consultation process. There were disputes about which iwi held mana whenua in the Bylaw area throughout the consultation process. The Hearing Panel issued minutes stating that they were not required to make any determinations on mana whenua and/or mana moana in the consultation process, or in the recommendations they provided to the Council.

• [22] On 18 July 2022, the Hearing Panel provided a report to the Council, proposing amendments to the draft Bylaw so that certain vehicles were able to access an area then defined as the ‘Yellow Zone’. The Hearing Panel did not propose any amendment creating an exemption allowing tangata whenua to exercise customary rights, preferring the view that the insertion of the Yellow Zone was sufficient. On 11 August 2022, that report was presented at a Council meeting, during which the Council directed further engagement with tangata whenua. This engagement included Rangitāne receiving the Hearing Panel’s report on 17 August 2022 and attending a hui with the Council on 5 September 2022.

• [23] On 24 February 2023, the Council publicly notified a Council meeting on 2 March 2023 at which a decision would be made in relation to the Bylaw. Those who submitted on the proposed bylaw were also notified of the upcoming meeting.

The adoption of the Bylaw

• [24] The Bylaw was approved by a resolution of the Council on 2 March 2023. It came into force on 1 July 2023. The purpose of the Bylaw is to, by regulating the use of motor vehicles on beaches⁴ in the Marlborough District:⁵

(a) protect the environment;

4. Beach is defined in the Bylaw as “the foreshore being any area covered by the ebb and flow of the tide, and any adjacent area which can reasonably be considered part of the beach environment including areas of sand, pebbles, shingle, dunes or coastal vegetation or the confluence of any river but does not include any private property or land administered by the Department of Conservation”.

⁵ Marlborough District Council East Coast Beach Vehicle Bylaw 2023, cl 4.

(b) allow the environment to recover from the effects of the Kaikōura earthquake in 2016;

(c) protect and preserve sites of significant to tangata whenua;

(d) protect and preserve historic heritage;

(e) protect, promote and maintain public health and safety;

(f) protect the public from nuisance; and

(g) enable limited day time access at or below mean high water mark within the Yellow Zone in Schedule 1 (but excluding reef structures) for All Terrain Vehicles (ATV’s)⁶ and Utility Task Vehicles (UTV’s)⁷ to enable fishing, harvesting, customary practices and equitable access for Marlborough communities.⁸

• [25] The Bylaw uses the definition of motor vehicle from s 2(1) of the Land Transport Act 1998, which provides that motor vehicle:

(a) means a vehicle drawn or propelled by mechanical power; and

(b) includes a trailer; but

(c) does not include—

(i) a vehicle running on rails; or

(ii) [Repealed]

(iii) a trailer (other than a trailer designed solely for the carriage of goods) that is designed and used exclusively as part of the armament of the New Zealand Defence Force; or

(iv) a trailer running on 1 wheel and designed exclusively as a speed measuring device or for testing the wear of vehicle tyres; or

⁶ All Terrain Vehicles are defined in the Bylaw as a ‘quad bike’.

⁷ Utility Task Vehicles are defined in the Bylaw as a ‘side by side’.

8. ATV/UTV is defined in the Bylaw as a vehicle with or without motorcycle controls and equipment that is principally designed for off-road use, has three or more wheels running low pressure tyres, and has a gross weight of less than 1000 kilograms. It does not include utes or light vehicles even if modified for off road travel, as such vehicles are too heavy to meet the definition. Dune buggies are also excluded.

(v) a vehicle designed for amusement purposes and used exclusively within a place of recreation, amusement, or entertainment to which the public does not have access with motor vehicles; or

(vi) a pedestrian-controlled machine; or

(vii) a vehicle that the Agency has declared under section 168A is not a motor vehicle; or

(viii) a mobility device

• [26] The operative part of the Bylaw is contained in cl 6, which provides:

1. Subject to (2) and (3) below, no person may cause any motor vehicle to enter any beach as defined at Part 1 of this Bylaw at any time. The extent of the beach area is identified with red hatching in Schedule 1 for the purposes of guidance only. This part of the Bylaw is authorised by s 22AB(1)(f) [of the Land Transport Act 1998].

2. Subject to (3) below, persons may drive a ATV/UTV at a maximum speed of 30 kilometres per hour (km/hr) in the area identified in the Yellow Zone during daylight hours and at or below mean high water mark. No ATV/UTV use is permitted on reef structures. In case of emergency, persons may drive an ATV/UTV above the mean high water mark, but not on or in any dunes. For clarity, only ATV/UTV may be driven in the Yellow Zone. No other motor vehicles are allowed under any circumstances. This part of the Bylaw is authorised by s 22AB(1)(d)(f) [of the Land Transport Act 1998].

3. No person may cause any motor vehicle to enter any dune on Council controlled land at any time. This part of the Bylaw is authorised by s 22AB(1)(f) [of the Land Transport Act 1998].

4. No person may cause any motor vehicle to enter the unformed legal road identified in Schedule 1 at any time. This part of the Bylaw is authorised under s 22AB(1)(g) [of the Land Transport Act 1998].

5. No person may drive a motor vehicle at a speed of more than 30 km/hr on the Beach as defined in Part 1 of this Bylaw, between the southern edge of the Waima (Ure) River and the southern edge of the Marlborough District Boundary. The extent of the beach area where vehicle use is permitted is identified with green hatching in Schedule

1 for the purposes of guidance only. This part of the Bylaw is authorised by s 22AB(1)(d) [of the Land Transport Act 1998].

• [27] Essentially, in the area designated as the ‘Red Zone’ no person may cause any motor vehicle to enter any beach at any time, and in the ‘Yellow Zone’, persons may drive an ATV/UTV at a maximum speed of 30 kilometres per hour during daylight hours at or below the mean high water mark. This position is subject to exceptions as contained in cl 7 of the Bylaw. There is also a ‘Green Zone’ being an area in which

vehicles are allowed. The Red Zone is in two specified areas, the first being between the Awatere River Mouth in the west and end of Marfells Beach in the east, and the second being between the eastern side of Cape Campbell in the west, and the Waima (Ure) River Mouth in the east. The Yellow Zone is the area between the two areas which form the Red Zone. The Green Zone is between the Waima (Ure) Mouth, and travels south along the coast to the Marlborough District Boundary.

• [28] The map below depicts these areas (the Bylaw area):

• [29] As noted, cl 7 provides exceptions to cl 6. It provides exceptions for motor vehicle use in the following manner:

(a) a person can use a motor vehicle on a beach to launch or retrieve a vessel, but only at specified boat launching areas at Marfells Beach or Ward Beach;

(b) a person who is an employee, contractor or nominee of an authorised agency who is carrying out the lawful functions or activities of that agency, can use a motor vehicle on a beach;

(c) Dominion Salt Ltd, and its successors, assignees, employees, contractors or nominees may use a motor vehicle on the beach within an area designated as the ‘Business Exempt Area’;

(d) Burkhart Fisheries Ltd and Lanfar Holdings (No 4) Ltd, and its successors, assignees, employees, contractors or nominees may use a motor vehicle on the beach within an area designated as the ‘Business Exempt Area’

• [30] Further, cl 9 provides that nothing in the Bylaw affects:⁹

(a) access to the dunes and to the rest of the beach other than by motor vehicle;

(b) access to the East Coast for commercial fishing to the extent that that right to access was permitted before the commencement of the Bylaw.

• [31] The area covered by the Bylaw is entirely within Rangitāne’s area of interest as acknowledged by the Crown in the Deed of Settlement signed in 2010, referred to above. There are places of significance to Rangitāne in this area, including pā sites, kāinga, cultivations, urupā, tauranga waka, and mahinga kai. Rangitāne has provided

9. Clause 9 is followed by a note that states that walking, cycling, horse riding, and access by vehicles that are not motor vehicles as defined in the Land Transport Act continue to be unrestricted on the whole of the East Coast.

evidence that the iwi has long exercised customary rights within the area which has been declared as the Red Zone, and continues to do so, particularly:

(a) exercising customary fishing practices such as:

(i) collecting kina, crayfish, and pāua for tangi and hui;

(ii) collecting karengo, particularly for kaumatua;

(iii) net fishing for greenbone and moki; and

(iv) breach fishing for hāpuka and moki.

(b) maintaining archaeological sites of significance to Rangitāne, particularly those at the mouths of Blind River, south of the Awatere River, and at Bubu Stream, protecting those sites from coastal erosion; and

(c) visiting sites of significance where kaumatua are able to transmit intergenerational knowledge to younger generations.

• [32] Rangitāne says that they will not be able to access significant sites or exercise their customary rights within the Red Zone if they are unable to use vehicles, and that the Yellow Zone (in which vehicles can be used) has no relationship to the areas in respect of which they require access.

Substantive claim and application for interim relief

• [33] Rangitāne’s substantive claim was filed on 26 June 2023, accompanied by an on notice application for interim relief. The claim advances two causes of action. In the first cause of action Rangitāne seeks orders pursuant to s 16 of the Judicial Review Procedure Act 2016, setting aside the Bylaw. The second cause of action seeks an order pursuant to s 12 of the Bylaws Act 1910 quashing the Bylaw on the grounds that it is invalid.
• [34] Broadly, Rangitāne alleges that the decision to adopt the Bylaw was ultra vires as the Council does not have the power to prevent them from exercising their customary rights. Rangitāne says also that the decision was procedurally in error, because of the differential basis upon which the Council engaged with Ngāi Tahu/Ngāti Kuri relative to Rangitāne. Rangitāne alleges that their legitimate expectation of consultation was breached, as were the Council’s obligations under the Local Government Act 2002. Rangitāne says the Council’s decision was based on an incorrect understanding of the nature and extent of their interest in the Bylaw area. Rangitāne relies upon the Council’s obligations under the Treaty of Waitangi as a delegate of the Crown.

• [35] Rangitāne’s application for interim relief seeks the suspension of the Bylaw until the determination of the substantive claim, pursuant to r 7.53 and pt 30 of the High Court Rules 2016, on the grounds that the Bylaw will:

(a) prevent Rangitāne from exercising their rights and responsibilities of, at least, kaitiakitanga under Article Two of the Treaty of Waitangi in the Bylaw area;

(b) prevent Rangitāne from accessing their sites of significance;

(c) prevent Rangitāne from accessing areas in which they have customary rights and from exercising those customary rights; and

(d) thereby cause Rangitāne significant hardship.

• [36] Rangitāne says that there is no hardship or prejudice to delaying the operative date of the Bylaw until a decision is made on the substantive application.

• [37] The Council has filed a statement of defence. It opposes Rangitāne’s application for interim relief primarily on the grounds that the Bylaw does not prevent Rangitāne from accessing their sites of significance or from exercising their customary rights in the Bylaw area, and that any prejudice to Rangitāne as a result of the Bylaw is limited. The Council says also that if interim relief is granted, it will suffer

significant prejudice, as will the community and the environment. The Council says that Rangitāne has delayed in bringing their application for interim relief, and that the balance of convenience favours the dismissal of the application.

Rangitāne’s evidence

• [38] In support of their application for interim relief, Rangitāne has filed evidence from Mr Corey Hebberd, the Kaiwhakahaere Matua | General Manager of the Trust, Mr Kevin Abbott, expert mariner, and Ms Sally Neal, the Pou Taiao | Environmental Manager for the Trust.

Mr Hebberd

• [39] Mr Hebberd has responsibilities for the overall management of issues affecting Rangitāne. Mr Hebberd states:

Rangitāne considers it obvious that the Bylaw will prevent Rangitāne from accessing its sites of significance and will prevent Rangitāne from undertaking its cultural harvest. We made this submission to the Respondent during the Bylaw processes but it was not accepted. Rangitāne is therefore seeking interim relief so that, pending the outcome of its substantive application for judicial review, the Rangitāne iwi can continue to do the things they have been able to do for centuries without interference or the threat of legal consequences from the Respondent.

• [40] Mr Hebberd describes Rangitāne’s area of interest and confirms their longstanding and contemporary connections with the East Coast of the South Island. He gives evidence about the matters raised with the Council in the submission by Rangitāne on the Bylaw. Mr Hebberd explains that the submission recorded that the shoreline within the Bylaw area is dotted with pā, sites, kāinga, cultivations, waka, and fishing stations. He notes this is illustrated by the vast number of archaeological finds, alongside the oral and customary practices of Rangitāne.

• [41] Mr Hebberd describes some of the areas of significance to Rangitāne, including

(i) The Awatere to Grassmere Area (including a reference to a significant pā located at Paruparu, on the northern side of the lake outlet to the sea. We referenced the circumstances where, when under attack, a number of our wāhine, hiding in the reeds, smothered their

own babies whose crying threatened to give away their location, speaking to the great significance of this area, including that there are a number of unrecorded urupā within the area);

(ii) Grassmere, Mussel Point and Cape Campbell (including reference to Te Karaka/Cape Campbell and further south at Orumoa [Long Point], demonstrating that Te Karaka was an occupied area);

(iii) Flaxbourne South to Waima (where we know that Rangitāne o Wairau chief Te Huataki established pā at Matariki [on the north side of the Waiau-toa River] and the mouth of the Waiharakeke [Flaxbourne] River at Ward Beach).

• [42] Mr Hebberd says that the Bylaw directly impacts Rangitāne by preventing vehicular access to the coastal areas of Kāpara-te-hau, Mussel Point, Te Karaka, Oruamoa, Waiharakeke, and further south to the Waima River, including sites situated along the coast from Marfells Beach to Ward Beach. He notes that the prohibition on vehicular access is particularly relevant for whānau who have physical limitations, preventing them from safely and comfortably accessing the area, because they cannot travel there on foot. Mr Hebberd records that Rangitāne’s submissions proposed that an exclusion apply for iwi customary practices, which was not adopted by the Council. He notes, rather, that the Bylaw makes an exception for persons undertaking commercial activities which reflect ‘existing business activity’. Mr Hebberd also says that Rangitāne asked the Council to agree to extending the commencement date of the Bylaw until after determination of their substantive claim but this was declined.

• [43] In response to the evidence provided by the Council, Mr Hebberd says that the Bylaw area contains rough terrain and that it is unreasonable to expect iwi members, including kaumātua, to traverse the coastline on foot, and that there are not safe areas to land a boat. He says also that the sites identified by the New Zealand Archaeological Authority should not be used as a proxy for Rangitāne sites of significance, which are different in form and substance. He says that it is incorrect to say that Rangitāne did not identify these areas throughout the consultation process. Mr Hebberd disputes the Council view that harm to Rangitāne is limited and says there is deep distress among the iwi at not being able to exercise their kaitiaki functions or longstanding customary rights. He says that the Council’s approach to the Bylaw process and the outcome is a serious setback to the mana of Rangitāne within Marlborough and the relationship between Rangitāne and the Council.
• [44] Mr Hebberd also disagrees with the Council’s view that vehicular access in the Bylaw area was inaccessible or very restricted prior to the Kaikōura earthquake, saying that most of the area at that time was always accessible by vehicle, even if it may have been difficult. He says also that the passage of time between the Kaikōura earthquake and the commencement of the Bylaw pshows that there is no urgent environmental issue to address. Mr Hebberd disagrees with the Council’s view that there was considerable iwi support for the Bylaw and is unaware of any evidence of this. He says that Rangitāne and Ngāti Kuia were the only iwi submitters and they both opposed the Bylaw.

• [45] Mr Hebberd expresses the concern Rangitāne has about the Council’s early and ongoing liaison with Ngāi Tahu/Ngāti Kuri in the Bylaw process, with an absence of similar engagement with Rangitāne and other iwi. He confirms that Rangitāne do not wish the Council to consider the relativities of interests between iwi, but rather wish to be heard on the protection of their customary and Treaty rights.

• [46] Mr Hebberd notes that the Council is not enforcing or monitoring the Bylaw at present, and says it is clear that the Council intends for Bylaw to be self-policed. He says also that none of the evidence produced throughout the consultation process indicated that access by Rangitāne to their sites of significance using ATVs/UTVs created any environmental or public safety risk. Mr Hebberd rejects any suggestion that motorised access to the Yellow Zone is sufficient recognition of the customary rights of Rangitāne.

Mr Abbott

• [47] Mr Abbott is Rangitāne. He is a mariner and has lived and worked along the East Coast of the South Island for most of his life. He describes the customary rights that Rangitāne has exercised in the Bylaw area for centuries, noting that there is limited road access to that area, and that most of the land adjacent to the coast is in private Pākehā ownership. He states that to undertake customary activities, Rangitāne has had to access the beach within the Red Zone from the limited points at which there is public access, and that they will not be able to access their sites of significance if they are unable to use vehicles. He also provided evidence of customary fishing permits

granted to members of Rangitāne pursuant to an agreement between Rangitāne and the Ministry of Fisheries.

Ms Neal

• [48] Ms Neal is responsible for delivering Rangitāne’s statutory planning functions for resource consents, local government plans, Environment Court matters, and stakeholder awareness of Rangitāne’s values for cultural and environmental conservation. In this role she communicated and engaged with the Council in relation to the Bylaw. She gives evidence in reply to the evidence provided by Ms Sarah Edmonds for the Council (referred to below).

• [49] Ms Neal expresses her view that Ms Edmonds was generally dismissive and disengaged with Rangitāne’s concerns in respect of the Bylaw. She says that Ms Edmonds appears to have taken a more constructive and open approach to her engagements with representatives from Ngāi Tahu/Ngāti Kuri, which she regarded as a relationship of partnership. She says that Ms Edmonds never followed through on her suggestion that Rangitāne prepare a Cultural Impact Assessment for the Bylaw proposal, and that the information in Ms Edmonds’ possession throughout the process did not reflect the extent of Rangitāne’s sites of significance within the Bylaw Area. Ms Neal says that she always had to initiate contact with Ms Neal after media updates on the Bylaw were brought to her attention, rather than Ms Neal keeping me informed or seeking further engagement.

The Council’s evidence

• [50] The Council has filed evidence from its Chief Executive, Mr Mark Wheeler, and its Strategic Planner, Ms Sarah Edmonds.¹⁰

¹⁰ At the hearing, an affidavit from Amarind Eng dated 4 September 2023 was handed up by Ms McKechnie. Exhibited to this affidavit was a joint letter from the Council and the Department of Conservation to Rangitāne and other iwi in the Marlborough region clarifying that the Bylaw will not apply to mana whenua accessing the East Coast for attending to significant cultural and environmental events or emergencies, such as mammal stranding responses, where mana whenua are working with the Department in relation to such events.

Mr Wheeler

• [51] Mr Wheeler describes the process through which the Bylaw was developed and implemented, following the Kaikōura earthquake in 2016. He says that the Council informally considered options between 2017 and 2019 as a result of community concerns about ecological damage and public safety caused by increased vehicular use of the coastline. He notes the Council’s Technical Report as a key document for the decision made by the Council in December 2019 to explore a vehicle bylaw, with the objective of protecting the East Coast ecosystems and enhancing public safety.

• [52] Mr Wheeler says that in the development of the Bylaw, the Council used the Special Consultative Procedure (SCP), as required under the Local Government Act 2002, and that all nine iwi authorities who have customary or contemporary interests in the Bylaw area participated at various stages in the Council’s public consultation process. He notes that kanohi ki te kanohi based engagement occurred between February 2020 and July 2021, and says that Rangitāne were the only iwi in opposition to the Bylaw. As to the Hearing Panel, Mr Wheeler says that the Panel accepted that relevant iwi and hapū have ancestral and contemporary relationships with parts of the Bylaw area, including Rangitāne, and invited Rangitāne to provide further information on their sites of significance, which he says was not provided.

• [53] Mr Wheeler says that on 2 March 2023, the Council considered the recommendations in the report from the Hearing Panel and feedback provided by Rangitāne, Ngāi Tahu and Ngāti Kuia. At this meeting the Council voted to adopt the Bylaw.

• [54] Mr Wheeler describes the broader community consultation undertaken by the Council on the Bylaw, stating that a majority of the community who participated in that process supported the Bylaw to help protect and preserve the coastline. He says that of the total 193 submissions received, 111 of those were in support of prohibiting or restricting vehicle access to parts of the Bylaw area. He says that the implementation of the Bylaw is therefore a reflection of wider community support.

• [55] Mr Wheeler also describes the events that led to the filing of proceedings by Rangitāne, including a request by Rangitāne on 8 June 2023 for the Council to

voluntarily suspend the commencement of the Bylaw, which following an Extraordinary General Meeting, the Council declined to do. Prior to the commencement of the Bylaw and the filing of proceedings by Rangitāne, signage was installed at all access points along the beach. However, Mr Wheeler says the Council is not actively monitoring or enforcing compliance with the Bylaw at present.

• [56] Mr Wheeler considers that if interim relief is granted to Rangitāne, there will be substantial public confusion and frustration. He says that signage will need to be removed or changed, and media statements released, and that may need to take place again following the determination of the substantive application. Mr Wheeler says that the Council does not yet have any official enforcement or monitoring of the Bylaw in place. He says that he is concerned that members of the public may attempt to self- police the Bylaw if there are changes to the rules and they are not aware of that, and that public conflict may result. Mr Wheeler reiterates the general health and safety concerns for members of the public from having vehicles on the beach, especially over summer months, and that these concerns will re-emerge should the Bylaw be suspended.

Ms Edmonds

• [57] Ms Edmonds explains that she began work on the East Coast in February 2019. Ms Edmonds says that she:

(a) collated material presented at technical advice workshops and in discussion documents;

(b) investigated the impacts of the Kaikōura earthquake and undertook a policy assessment in respect of the Council’s jurisdiction and responsibilities with iwi and other agencies with responsibilities in Marlborough;

(c) co-ordinated the Council’s SCP; and

(d) directly engaged with Rangitāne throughout the development of the Bylaw.

• [58] Ms Edmonds describes that the effect of the Kaikōura earthquake was a significant coastal deformation along a 110 kilometre stretch of the East Coast of the South Island, which uplifted and exposed large new areas of the tidal platform. She refers to the information about this in the Council’s Technical Report.

• [59] The Bylaw area was specifically impacted, with land uplifts of between 0.5 and 2.5 metres in the coastal marine area between the Awatere and Waima (Ure) rivers, and the high tide mark shifted up to 200 metres, leaving more exposed beach. This had the effect of the destruction of natural physical barriers which protected the coastal environment, impacting the ecology of the area. Ms Edmonds says the Technical Report and the report from the Hearing Panel provide details of these ecological impacts.

• [60] With reference to the Hearing Panel Report, Ms Edmonds says that prior to the earthquake, vehicles (which were typically quad bikes) could only be used during low tide (including up to two hours either side of low tide). She says that after the earthquake there was a significant increase in vehicle use and disturbance in the Bylaw area, resulting in an “unregulated and high-use coastal highway, with all-tide access, day and night”, with four-wheel-drive vehicles being used as well as quad bikes. She says that if the Bylaw is suspended, there is likely to be a continuation of ecologically significant damage to the area, including vehicles driving over and killing animals, and crushing plants. She says that the area is home to nationally endangered plant and animal species and their habitats, and that the Council considered the Bylaw as the most appropriate and effective option to address these concerns. Ms Edmonds says that the Council will be putting in monitoring in place to assess the effectiveness of the Bylaw over time.

• [61] Ms Edmonds describes the Council’s engagement in relation to the proposed Bylaw. She describes her engagement with Rangitāne. She notes the Council’s invitation to Rangitāne to have a representative sit on the Hearing Panel, noting that acceptance of this role would mean Rangitāne could not make a submission on the proposed Bylaw. Ms Edmonds says that Rangitāne did not take up this opportunity and instead made a written submission dated 8 September 2021, as well as oral submissions at the first and second hearings held on 23 November 2021 and 3 May

2022. She says that on 5 September 2022, the Council had a hui with Rangitāne to discuss the proposed Bylaw and the feedback given was summarised in a report given to Council for the 2 March 2023 Council meeting at which the Council resolved to adopt the Bylaw.

• [62] Ms Edmonds refers to the Hearing Panel’s views that the Bylaw does not prevent Māori from exercising their customary fishing rights in the Bylaw area and that the Hearing Panel recommended the Yellow Zone be included in the Bylaw because it would allow motorised access to an area identified as the most popular for customary fishing.

• [63] Ms Edmonds also says that in the consultation process, she requested information from iwi about their identified sites of significance along the East Coast. She says that in response to that request, she did not receive any information specifically from Rangitāne, and therefore focused on the sites recorded by the New Zealand Archaeological Association (NZAA). She says that Rangitāne had the opportunity to comment on the maps attached to the Technical Report but did not do so. Ms Edmonds explains that the Council has reviewed the maps attached to Mr Hebberd’s first affidavit and have concluded that those maps show a subset of the sites identified by the NZAA.

The parties’ submissions

Rangitāne

• [64] Ms Radich, counsel for Rangitāne, submits that Council was involved in Rangitāne’s settlement process and was aware of the nature and extent of Rangitāne’s area of interest, an area which the Bylaw area falls entirely within. She says that Rangitāne’s position is that the Bylaw effectively extinguishes their ability to exercise kaitiakitanga and other functions in areas where they have customary rights and cultural interests. She submits that the Council’s view that Rangitāne retains access by foot, bicycle, horse, or boat is significantly out of touch with reality, and in breach of the Crown’s obligations under Article Two of the Treaty of Waitangi.
• [65] Ms Radich says that interim relief will be justified if Rangitāne satisfies the Court that unless their application is granted they will suffer injury for which they cannot be adequately compensated by damages.¹¹ She submits that Rangitāne has met this burden on the evidence, and that there is no suggestion by either party that damages are an adequate remedy for the loss of access to land, fisheries and sites of significance. She says that Rangitāne would not accept damages if ultimately successful in the substantive matter.

• [66] Ms Radich submits that Rangitāne is required to establish that there is a serious question to be tried, that the balance of convenience is in their favour, and that the overall justice of the case justifies interim relief.¹² She submits that Rangitāne has raised seven questions to be determined in the substantive application, each of which has legal and factual merit, and that therefore the threshold of a serious question to be tried is met. She reiterates the evidence provided by Mr Hebberd and Ms Neal, and notes previous judgments of this Court and the Court of Appeal which disprove that Ngāi Tahu/Ngāti Kuri have exclusive rights in the relevant area.¹³ She notes also a more recent decision in which Rangitāne successfully overturned a decision made by the Department of Conservation on the basis of the preferential treatment given by that Department to Ngāi Tahu/Ngāti Kuri.¹⁴ She says that by adopting Ngāi Tahu/Ngāti Kuri’s historically and factually inaccurate advice on cultural issues in the Technical Report supporting the Bylaw, the Council did not properly consider the nature and extent of Rangitāne’s relationship with the area.

• [67] Ms Radich addresses the Council’s argument that it has no obligations under the Treaty of Waitangi, submitting that anyone exercising legislative powers on behalf of the Crown acts as the Crown’s agent and is subject to the Treaty of Waitangi. She says that the Council is a delegate of the Crown in terms of its power to make legislation under the Land Transport Act 1998, and that the Council has breached the Crown’s obligations under the Treaty of Waitangi. She says this breach is particularly

¹¹ American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504.

¹² See Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] NZCA 70; [1985] 2 NZLR 129 at 7.

13. Ngāti Apa Ki Te Waipounamu Trust v R [2000] NZCA 45; [2000] 2 NZLR 659; and Te Rūnanga o Ngāi Tahu v Attorney General HC Wellington CIV-2007-485-2602, 14 August 2009.

¹⁴ Hart v Director-General of Conservation [2023] NZHC 1011.

in relation to the guarantee under Article Two that Māori would have the undisturbed possession of their properties, including their land, forests, and fisheries.

• [68] As to the balance of convenience, Ms Radich notes that the Council has already exempted a number of activities from the Bylaw, including commercial fishing, meaning that commercial fishing operators can continue to use vehicles without restriction. She says that the fact that there is continued vehicular access for commercial operators, but not tangata whenua, undermines the Council’s arguments on the balance of convenience. She says that if there were genuine concerns about the environment and/or health and safety the Bylaw would not have exempted commercial users, being the category of users who are far more likely to have an effect in environmental and health and safety terms.

• [69] As to the overall justice of the case, Ms Radich submits that justice favours the granting of interim relief, to enable Rangitāne to exercise their customary rights, and to preserve the status quo pending the substantive hearing. She does not accept that the Council’s concerns as to community confusion, environmental risks, or public health and safety are of any merit. She says these arguments must be evaluated in the context of the existing exemptions under the Bylaw.

The Council

• [70] Ms McKechnie, counsel for the Council, submits that given Rangitāne’s substantive claim is effectively a judicial review proceeding, the appropriate test for the application for interim relief is set out in s 15 of the Judicial Review Procedure Act, which provides the court’s power to make interim orders. She says that the Court must ask whether the order sought is necessary to preserve Rangitāne’s position, and if so, whether the circumstances of the case warrant the granting of relief.

• [71] Ms McKechnie submits that the relief sought by Rangitāne is not necessary to preserve their position, and that even if the threshold for interim relief is satisfied, that the court should decline to exercise its discretion to grant relief. She says the limited material prejudice to Rangitāne, the wider public and private impacts of granting interim relief, the lack of timeliness in bringing the application, and the overall public interest favour the dismissal of Rangitāne’s application.
• [72] Ms McKechnie submits that Rangitāne is overstating the restrictions created by the Bylaw, and reiterates the Council’s view that they still have access to their sites of significance, and the ability to engage in kaitiakitanga, and customary fishing. She says vehicle access is not the only practicable means of accessing sites of significance or performing customary activities. She says therefore interim relief is not reasonably necessary to preserve Rangitāne’s position, and that the exemptions provided in the Bylaw are orthodox exemptions found in similar coastal plans and restrictions. She says also that it is unclear how the exemptions provided in the Bylaw for a small residual number of users, with restrictions, directly prejudice Rangitāne or affect the overall balance of convenience.

• [73] Ms McKechnie submits that Rangitāne are relying on a ‘historical paradox’ in emphasising the necessity of vehicles. She says that this is incorrect as vehicle accessibility on the beach has increased in recent years, and the advent of vehicles that can drive on the beach is also relatively recent. She submits therefore that the Bylaw does not prevent Rangitāne from accessing their sites of significance and gathering kai has they have done “for hundreds of years”. She says that prior to the existence of beach-worthy vehicles it is reasonable to assume that they would have accessed these sites by foot and/or horse, and that Rangitāne are not prevented from doing so under the Bylaw. She notes that the Yellow Zone accounts for customary activities, and that in any event, many of the sites of significance are located nearby to beach access points.

• [74] Ms McKechnie submits that one of the purposes of interim relief is to preserve the Court’s ability to grant effective relief if the substantive case is successful. She says, therefore, that there is no threat of irreversible or permanent detriment to Rangitāne in waiting for the substantive application to be determined with the Bylaw remaining operational, as if they are successful, the Bylaw will still be able to be set aside, regardless of whether interim relief is granted. On the other hand, she submits that if the Bylaw is suspended, the coastal environment is at risk of additional and potentially irreversible damage.

• [75] Ms McKechnie submits that the court should exercise its discretion to decline the interim relief sought by Rangitāne as any prejudice is limited because Rangitāne

retains access by non-vehicular means. There is insufficient evidence of how they would suffer significant hardship or injury, or material prejudice. Any inconvenience is outweighed by the importance of preventing environmental damage, and risk to public safety. To this end, Ms McKechnie highlights that were the Bylaw suspended via interim relief, it would cease to have effect over the summer months, as the substantive hearing is scheduled for 20 and 21 March 2024. She says that this is a period of time where there is significant risk, as public use of the beaches is high.

• [76] As to the strength of Rangitāne’s case, the Council accepts that the substantive claim raises novel questions of law but submits that it is strongly resisted. Ms McKechnie submits that the decision making process on the Bylaw was lawful, fair, and consistent. While this is not an issue the court needs to determine, Ms McKechnie says that the Council acknowledges that Rangitāne has mana whenua status in Marlborough alongside other iwi and hapū. Ms McKechnie notes also the Council’s concerns as summarised in Mr Wheeler’s evidence, including that the Council considers Rangitāne delayed in bringing their application.

• [77] Finally, Ms McKechnie notes that despite Rangitāne providing an undertaking as to damages, it would be difficult and inappropriate to quantify in monetary terms the environmental damage to the coastal environment that could result if interim relief is granted.

The correct approach to Rangitāne’s application for interim relief

• [78] As prefaced above, there was some difference between the parties as to the correct legal approach to Rangitāne’s application for interim relief. Ms Radich approached the application for interim relief by reference to r 7.53 of the High Court Rules, applying the test set out in the House of Lords in American Cyanamid Co v Ethicon Ltd, thus assessing whether there is a serious question to be tried, where the balance of convenience lies, and the overall justice of the case.¹⁵ Ms Radich explained that she adopted this approach because the Council indicated in its statement of defence that it is not required to plead to the cause of action seeking an order under

¹⁵ Above n 11.

s 12 of the Bylaws Act, which empowers the Court to quash or amend an invalid bylaw. Rangitāne’s application referred also to pt 30 of the High Court Rules.

• [79] Ms McKechnie, on the other hand, despite the Council relying on r 7.53 and pt 30 of the High Court Rules in its notice of opposition, submits that the approach required under s 15 of the Judicial Review Procedure Act is appropriate in the circumstances. Section 15 requires the application of the Court of Appeal’s approach outlined in Carlton & United Breweries v Minister of Customs, and adopted by the Supreme Court in Minister of Fisheries v Antons Trawling Company Ltd. This approach provides that:¹⁶

Before a Court can make an interim order under [s 15 of the Judicial Review Procedure Act 2016] it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.¹⁷

• [80] The distinction between the approach applied under r 7.53 and s 15 has previously been addressed by this Court. In Smith v Chief Executive of the Department of Corrections, Cooke J stated:¹⁸

The related point is that r 7.53 of the High Court Rules 2016 does not apply to judicial review proceedings. It is a rule in the part of the Rules that govern ordinary proceedings. Under the Judicial Review Procedure Act 2016 certain High Court rules apply in relation to an application for review under that Act, but not all the High Court rules automatically apply.¹⁹ Part 30 of the High Court Rules 2016 is a specific part of the Rules that recognises the Court’s inherent judicial review jurisdiction. But judicial review under Part 30 only arises in relation to review that is not covered by the Judicial Review Procedure Act 2016, such as the review of decisions that are not within the meaning of a “statutory power of decision” under that Act. There is an interim relief power in r 30.4 of Part 30 expressed in broad terms, although it is doubtful that a different approach would be adopted to interim relief under r 30.4 as compared to s 15.²⁰

¹⁶ Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101; (2007) 18 PRNZ 754 (SC) at [3].

¹⁷ Carlton & United Breweries v Minister of Customs [1986] NZHC 1031; [1986] 1 NZLR 423 (CA) at 430 per Cooke J.

¹⁸ Smith v Chief Executive of the Department of Corrections [2020] NZHC 751 at [12]. See also Cunliffe v Marsh [2018] NZHC 948; and Henry v Minister of Justice (No 3) [2019] NZHC 1234, [2019] NZAR 1071.

¹⁹ See s 8(2) and Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC 444 at [15], citing Ngati Tama Ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166 at [17]–[19].

²⁰ See Greer v Chief Executive, Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [25].

• [81] Rangitāne’s substantive application is properly described as a judicial review proceeding. It relies on public law concepts and grounds. It seeks the setting aside or quashing of a statutory instrument and relates to the statutory decision of the Council to adopt a vehicle bylaw under s 22AB of the Land Transport Act.

• [82] As such, the present proceeding is not an ordinary civil proceeding, and r 7.53 is not relevant. Further, “as the Court of Appeal made it clear in Carlton & United Breweries, the power under s 8 is not to be restricted by formulations found in American Cyanamid”.²¹ Section 15 of the Judicial Review Procedure Act is the primary basis for granting interim relief in a judicial review proceeding involving a challenge to the exercise of statutory powers of decision.²² As such, pt 30 of the High Court Rules does not apply either.

• [83] I proceed to consider the application in terms of s 15, noting that the requirements set out in American Cyanamid are broadly incorporated into that approach in any event.

Does Rangitāne have a position to preserve?

• [84] The position that Rangitāne wishes to preserve is their ability to use vehicles in the Red Zone area for the purpose of carrying out customary rights and responsibilities, including accessing sites of significance and customary fishing. It is common ground that it is possible for Rangitāne to continue to access the Red Zone, notwithstanding the Bylaw, other than by vehicular means. Nevertheless, I consider that Rangitāne has a position to preserve. Inherent in this conclusion is a finding that the operation of the Bylaw detrimentally affects Rangitāne’s ability to use the beach to undertake customary activities.

• [85] It is common ground that the Bylaw area is within Rangitāne’s area of customary interests. I accept the evidence on behalf of Rangitāne that for centuries they have accessed the north-eastern coastline of the South Island, including the Red

²¹ See Henry, above n 18, at [30]; citing Te Runanga-A-Iwi O Ngati Kahu v Carrington Farms Ltd HC Whangārei CIV-2010-488-000348, 13 September 2010 at [14]. The reference to s 8 is a reference to s 8 of the Judicature Amendment Act 1972, the predecessor to s 15 of the Judicial Review Procedure Act 2016.

²² Parents of Courtney v Principal [2021] NZHC 2075 at [25].

Zone, and have customary rights and responsibilities in relation to it. I am also satisfied that there are many locations of significance for Rangitāne within the Bylaw area. I do not for present purposes have to reach a conclusion as to whether all of them are as identified by NZAA. I note that Rangitāne is best placed to identify the sites of significance, as well as describe their nature, although I accept also that NZAA may have recorded a number of them.

• [86] The argument before me proceeded on the basis of a comparison of the access Rangitāne had to the Bylaw area before and after the Kaikoura earthquake—rather than before and after the adoption of the Bylaw, and for this reason, the parties focused on their disagreement about the nature of the access to the Bylaw area prior to the Kaikoura earthquake. Ms Radich was concerned that the Council was arguing that the appropriate comparison to make was to the access Rangitāne had pre-European settlement. Ms McKechnie did not pursue such an argument at the hearing, and instead clarified that the Council’s point is that there was previously limited or no vehicular access, emphasising that it is the impact of the earthquake that has made access broadly available. She referred me to information including photos included in the Council’s Technical Report and a report prepared for the Council in August 2020 by the Marine Ecology Research group at the University of Canterbury titled “Beach dynamics and recreational access changes on an earthquake-uplifted coast”.

• [87] Rangitāne does not accept it is the case that prior to the earthquake, the iwi was not able to access the Red Zone by vehicle. Mr Hebberd deposes that while access to some areas was difficult, it is not correct to say that access to the Bylaw area was restricted or unavailable because of tides and natural boundaries. This is a factual issue that I cannot determine on this application, but I consider it appropriate to accept for present purposes that prior to the earthquake Rangitāne did have vehicular access to the Bylaw area. In my view, Rangitāne is likely to have good information available to them given the importance of the area to them and their regular use of it. Despite this, I consider that whether Rangitāne has a position to preserve is more appropriately understood by reference to the vehicular access available following the earthquake and prior to the adoption of the Bylaw. As it is accepted by the parties that all persons had access during this period, this issue accordingly falls away.
• [88] The position that Rangitāne seeks to preserve could also be described as equality and/or equity of access for iwi members. Again, there was disagreement between the parties, specifically as to the distance between access points, and what impact that had on what the extent of access would be in fact, by reference to Rangitāne’s sites of significance. On the Council’s evidence, this suggests a maximum distance of seven kilometres between access points.

• [89] However, as Ms Radich said, if a person travelled that distance they would still need to return to the access point, meaning that 14 kilometres might better be taken as the relevant distance. Without finally resolving this, it is clear that given the distance and the terrain involved, the Bylaw would, for some persons, effectively deprive them of access to the full extent of the Red Zone. As identified by Rangitāne, these persons are more likely to be kaumātua possessing the knowledge of tikanga and mātauranga Māori necessary for customary activities. It might also include any iwi members with mobility limitations. Rangitāne seeks to preserve a position whereby those persons might be able to access sites of significance and undertake customary activities, through the use of vehicles on the beach within the Red Zone.

• [90] There was also debate between the parties about the viability of accessing the Bylaw area by other than vehicular means. The means contemplated by the Bylaw are access by walking, cycling, horse riding and boat. I accept Mr Hebberd’s evidence that the coastline is rugged and not readily accessible by boat, other than at the prescribed boat launching areas. Mr Hebberd rejects the viability of access by horse or bicycle for Rangitāne.

• [91] While I accept that the restriction on access is regarded by Rangitāne as distressing and affecting their mana, this is likely not a case where irreversible harm would result were interim relief not granted (and there is no such evidence before me). Nonetheless, the significance of the interests involved are in my view sufficient to satisfy the threshold of a position to preserve. I now go on to assess the factors relevant to the Court’s residual discretion.

The strength of Rangitāne’s case

• [92] An assessment of the merits of a substantive claim is relevant to an application for interim relief, because if Rangitāne does not have a meritorious claim, it would not be appropriate for the Court to exercise its discretion to grant interim relief. An applicant must have a reasonable chance of success. However, an assessment of the strength of an applicant’s case depends on the area of law.²³ How strong an applicant’s case needs to be depends on the nature of rights asserted and the practical consequences likely to flow from a grant of interim relief.²⁴ In previous cases, where public safety is suggested as the applicant’s main concern, it has been observed that requiring them to establish a prima facie case would be unduly restrictive.²⁵ However, where an application for interim relief would effectively determine the substantive application, the Court should take a robust approach to an assessment of the merits of the substantive claim.²⁶

• [93] Here, the rights at issue are ones which have previously been subject to judicial comment, and which have been recognised formally pursuant to the Ngāti Apa ki te Rā Tō, Ngāti Kuia, and Rangitāne o Wairau Claims Settlement Act 2014. These are significant and long-standing rights, which as identified by Ms Radich, bear on the obligations of the Crown pursuant to Article Two of the Treaty of Waitangi. There was no dispute by the Council at the hearing that Rangitāne has sites of significance in the Red Zone, or that they undertake customary activities there. Ms McKechnie accepted in her submissions that Rangitāne have the status of mana whenua. While it is not necessary for the Court to make any findings as to the nature or extent of the interests of Rangitāne in the area, the context in which I assess the strength of their claim is necessarily one that acknowledges the Council’s acceptance of the strength of their customary rights.

• [94] Pursuant to s 12 of the Bylaws Act 1910 the High Court may, on the application of any person before or after the bylaw comes into force, quash a bylaw if it considers

²³ Thompson v Invercargill City Council [2020] NZHC 174; citing Esekielu v Attorney-General

(1993) 6 PRNZ 309 (HC).

24. At [49]; referring to Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622.

²⁵ See Coromandel Peninsula Watchdog Inc v Hauraki District Council [1997] 1 NZLR 557 (HC).

²⁶ Auckland Pride v Minister of Immigration [2023] NZHC 758, [2023] 2 NZLR 651 at [65].

it to be invalid, or, instead of quashing the bylaw, amend it so as to remedy the invalidity. As previously stated by the Court of Appeal:²⁷

• [42] It has been demonstrated that historically a bylaw might be challenged and invalidated on the grounds of uncertainty, unreasonableness, and repugnancy to the law: see Wharan “Judicial Control of Delegated Legislation: The Test of Reasonableness” (1973) 36 MLR 611 and Taggart “From ‘Parliamentary Powers’ to Privatization: The Chequered History of Delegated Legislation in the Twentieth Century” (2005) 55 UTLJ 575. Those grounds of challenge had evolved over the centuries essentially as common law constraints on abuses of subordinate legislation.

• [43] Perhaps more importantly for present purposes the relevant provision of the Bylaws Act is s 17, which provides:

If any bylaw contains any provisions which are invalid because they are ultra vires of the local authority, or repugnant to the laws of New Zealand, or unreasonable, or for any other cause whatever, the bylaw shall be invalid to the extent of those provisions and any others which cannot be severed therefrom.

• [95] The Court of Appeal described the more explicit grounds as follows, noting the list is not exhaustive:²⁸

• First, a bylaw may be invalid on the basis of the simple proposition that the authority purporting to make it may not act outside its powers, which as Sir William Wade put it, “might fitly be called the central principle of administrative law” (Wade and Forsythe Administrative Law (9ed 2004) at 35);

• Secondly, a bylaw will be regarded as uncertain if the persons required to obey it cannot ascertain what is required of them;

• Thirdly, a bylaw will be invalid if, even though it is in a strict sense intra vires in respect of its own particular statute, it contravenes another statute or purports to make something unlawful which the general law says is lawful; and

• Fourthly, a bylaw will be regarded as unreasonable if it leads to manifest arbitrariness, injustice, or partiality. A well-known example of the application of this fourth principle is Re City of Montreal v Arcade Amusements Inc [1985] 1 SCR 368 holding invalid a bylaw prohibiting minors from entering amusement halls or using amusement machines. The Supreme Court of Canada said that it was upholding “the rule of administrative law that the power to make by- laws does not include a power to enact discriminatory provisions” (at

403) and that this is a “principle of fundamental freedom” (at 413).

²⁷ Conley v Hamilton City Council [2007] NZCA 543, [2008] 1 NZLR 789.

²⁸ At [45] and [46].

The Council’s power to prevent Rangitāne from exercising customary rights and the Council’s obligations under the Treaty of Waitangi

• [96] Rangitāne says that the Council’s decision to adopt the Bylaw is ultra vires to the extent that the Council has no statutory power, through the bylaw process under the relevant legislation, to prevent Rangitāne from accessing their sites of significance and from exercising their customary rights in the Red Zone. Rangitāne says also that the Council’s decision to adopt the Bylaw breaches the Council’s obligations under the Treaty of Waitangi, as a delegate of the Crown. This allegation must be addressed on the basis that the proper allegation is one of restricted access with the effect, in respect of certain iwi members, of access which is entirely prevented. I have accepted above that the Bylaw does, at the least, detrimentally affect Rangitāne’s ability to use the Red Zone to undertake customary activities.

• [97] There is no question that the Council may lawfully make bylaws regulating the use of vehicles on beaches within its district—the issue is rather whether it is within the Council’s power to make bylaws with the specific effect noted in the preceding paragraph. That appears to be a novel question of law. Nevertheless, I accept that it is at least arguable, given the nature of the rights relied upon by Rangitāne, and the manner in which they have been recognised by the Crown.

• [98] The Land Transport Act 1998 contains no reference to the Treaty of Waitangi, nor the obligations of road controlling authorities to act consistently with its principles. Nevertheless, it is well established that:²⁹

...since the Treaty of Waitangi was designed to have general application, that general application must colour all matters to which it has relevance, whether public or private and that for the purposes of interpretation of statutes, it will have a direct bearing whether or not there is a reference to the Treaty in the statute....

• [99] And further that:³⁰

...there are now many statutory contexts in which these same issues arise. In fact they arise wherever statutory language or context makes some aspect of tikanga or Treaty principle relevant in a public law sense. The statute may do

²⁹ Barton Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC) at 184.

³⁰ Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239 at [262] per Williams J.

that expressly or it may be by implication only.³¹ The courts are therefore familiar with the task of assessing factual and legal context (in the latter case by reference to statutory language) to determine whether tikanga principles may be relevant in some way in resolving the controversy.³²

• [100] In addition, the Local Government Act 2002 provides:³³

In order to recognise and respect the Crown’s responsibility to take appropriate account of the principles of the Treaty of Waitangi and to maintain and improve opportunities for Māori to contribute to local government decision-making processes, Parts 2 and 6 provide principles and requirements for local authorities that are intended to facilitate participation by Māori in local authority decision-making processes.

• [101] While s 4 of that Act clarifies that the responsibilities pursuant to the Treaty of Waitangi fall upon the Crown, rather than local government, the Act places a concomitant responsibility on local government to ensure that the Crown’s responsibilities are recognised and respected. This must be the case, given that an intention to constrain the ability of statutory decision-makers to respect Treaty principles should not be ascribed to Parliament unless that intention is made explicit.³⁴

• [102] In such circumstances, I do not think that it could properly be said that the Council may not have appropriate regard for the Treaty of Waitangi and its principles in making decisions pursuant to the Local Government Act or the Land Transport Act. Indeed, the Hearing Panel’s report to the Council appears to assume the same. It is therefore my view that this allegation is reasonably arguable. The same can be said of the allegation that the Council’s decision to adopt the Bylaw breached the Council’s various obligations under the Local Government Act 2002.

The Council’s differential treatment of Ngāi Tahu/Ngāti Kuri

• [103] Rangitāne says that the Council’s decision to adopt the Bylaw:

³¹ See, for example, Sentencing Act 2002, s 27; Care of Children Act 2004, s 5; and the Resource Management Act 1991, ss 6(e), 7(a) and 8.

³² See, for example, Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC); and Barton-Prescott, above n 26.

³³ Local Government Act 2002, s 4.

³⁴ Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, (2021) 23 ELRNZ 47 at [149]–[150] per William Young and Ellen France JJ; [237] per Glazebrook J; [296] per Williams J; and [332] per Winkelmann CJ.

(a) is procedurally unjustified because of the differential basis upon which the Council engaged with Ngāi Tahu/Ngāti Kuri relative to Rangitāne;

(b) was based on incorrect information in the Technical Report being the Cultural Narrative provided by Ngāi Tahu/Ngāti Kuri, which incorrectly identified the nature and extent of Rangitāne’s interests; and

(c) is flawed because a representative of Ngāi Tahu/Ngāti Kuri was on the Hearing Panel and that this created at least the appearance of bias against Rangitāne on account of their position, which was accepted by the Council, that Ngāi Tahu/Ngāti Kuri had superior rights and interests in the Bylaw Area.

• [104] I address these allegations together being as they bear upon the Council’s procedure in reaching its decision to adopt the Bylaw and concern the involvement of Ngāi Tahu/Ngāti Kuri in that process.

• [105] First, I note that there is a curious inconsistency between the manner in which the interests and rights of Rangitāne in the Bylaw area were described in the relevant reports and policy documents, and what the Council accepted in their submissions before this Court. As noted, Ms McKechnie accepted in submissions that Rangitāne has the status of mana whenua in the Bylaw area, and the parties agreed that this proceeding is not intended to litigate any dispute as to the relative strengths of the Rangitāne and/or Ngāi Tahu/Ngāti Kuri interests in that area.

• [106] However, it is the case that the Technical Report provided in evidence (which is the fifth and final version) does not specifically mention Rangitāne, and provides:

Ngāti Kuri are the tangata whenua who have manawhenua and manamoana in the area covered by the East Coast Beach Vehicle Bylaw. Manawhenua and manamoana are determined by whakapapa, and confer customary authority. The manawhenua and manamoana status of Ngāti Kuri comes from continuous land use and occupation.

....

The archaeological sites shown...represent those recorded by the New Zealand Archaeological Authority (NZAA). They are not a

comprehensive representation of all archaeological sites as iwi retain specific information and knowledge concerning known and unrecorded locations.

....

It is acknowledged that there are Te Tau Ihu iwi who may consider the area of the draft Bylaw within their rohe as tangata whenua. These discussions are ongoing.

• [107] The Technical Report identifies that the summary of cultural values quoted from above was prepared by Te Rūnanga o Kaikōura on behalf of Ngāti Kuri (other than the later addition of the acknowledgement of Te Tau Ihu iwi). To this extent, it appears to me that the Council did hold, at least initially, the view that Ngāti Kuri had the dominant interest in the Bylaw area.

• [108] Second is the question of whether Rangitāne was engaged with by the Council on a different basis than Ngāi Tahu/Ngāti Kuri, having had regard to the extent of consultation opportunities which occurred throughout the development of the Bylaw. There were meetings, correspondence, and a hearing process where Rangitāne had the opportunity to provide their views and did in fact provide their views. The merit of this allegation would appear to me to depend on a finding that there had been some issue with the consultation with Rangitāne. I express no more than a preliminary view, but it seems that even if Ngāi Tahu/Ngāti Kuri were treated differently, Rangitāne had an ample opportunity to engage with the Council such that an allegation of procedural unfairness would be unlikely to be successful.

• [109] This allegation does however raise an issue that the Council appears to have failed to remedy throughout the process of the development of the Bylaw. That is, by seeking to avoid engaging in an assessment of the strength of the relative rights of Rangitāne and Ngāi Tahu/Ngāti Kuri, it has not engaged with the specific nature of Rangitāne’s concerns as to their ability to exercise their customary rights and responsibilities. This suggests that there may be a case to be answered, in that the Council failed to properly account for the material that was provided by Rangitāne, notwithstanding the Council’s position that it provided Rangitāne with the opportunity to provide information and that Rangitāne did not do so. In this context, I accept that there does not seem to be any evidence at this stage of the numbers of Rangitāne affected by mobility issues nor the extent of customary activity affected—although

there was information provided as to the nature and extent of Rangitāne’s sites of significance. I consider that this allegation may have some merit.

• [110] Finally, where an allegation of apparent bias is made, the relevant test is whether “a fair-minded lay observer might reasonably apprehend that the [decision- maker] might not bring an impartial mind to the resolution of the question [they are] required to decide.³⁵ In the circumstances, where Rangitāne were given the same opportunity as Ngāi Tahu/Ngāti Kuri to have a representative appointed to the Hearing Panel, and declined that invitation in favour of making submissions to the Hearing Panel it is at least initially difficult to see how a fair-minded lay observer might reasonably apprehend that the Hearing Panel might not bring an impartial mind to the resolution of the question before it. As at this stage, Rangitāne has provided no basis upon which to conclude that the Hearing Panel or the Council were biased, and the fact that Ngāi Tahu/Ngāti Kuri had a representative on the Hearing Panel, when Rangitāne was provided the same opportunity, is not grounds to conclude there was bias.

• [111] I do however note that Ngāi Tahu/Ngāti Kuri had already expressed their views in the early consultation the Council undertook with them and that it is apparent that the Council sought further feedback from iwi, including Ngāi Tahu/Ngāti Kuri, after receiving the Hearing Panel report. It may be that there is an argument that the cumulative effect of this was to disadvantage Rangitāne, who had chosen not to have a representative on the Hearing Panel on the basis that this would prevent them making submissions to Council. This in my mind does not so much establish that Rangitāne’s allegation of bias is arguable, but instead lends weight to the argument that the Council engaged with Ngāi Tahu/Ngāti Kuri in a preferential manner that has caused Rangitāne detriment.

Rangitāne’s legitimate expectations

• [112] Rangitāne says that the Council’s decision to adopt the Bylaw breached Rangitāne’s legitimate expectations that they would be properly consulted in relation

35. Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [4]; citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

to the Bylaw and that all relevant information would be taken into account, including the nature and extent of the Rangitāne’s customary interests. For the reasons noted above, I consider that Rangitāne has an arguable case in respect of the allegation that the Council has not taken all relevant information into account.

The public and private repercussions of granting relief

• [113] The factors that the courts consider under this heading as being relevant to whether interim relief should be granted include:

(a) public health and safety issues:³⁶

(b) whether a grant of interim relief would infringe upon any public or private rights;³⁷

(c) the relevant legislative scheme;³⁸

(d) whether the applicant has delayed in seeking interim relief;³⁹

(e) the expected duration of the interim order;⁴⁰ and

(f) whether granting interim orders would result in prejudice to others.⁴¹

• [114] I address these matters to the extent that they are relevant. As will be apparent, the implication of granting relief depends quite significantly on the manner in which any proposed relief is expressed, and I address that first.

³⁶ Wallace v Chief Executive of the Department of Corrections [2022] NZHC 2464 at [88].

³⁷ Stirling v Maori Land Court HC Wellington CP11/98, 5 February 1998.

³⁸ Coromandel Peninsula Watchdog Inc v Hauraki District Council [1997] 1 NZLR 557 (HC).

³⁹ Hayes v Waitangi Tribunal HC Wellington CP111/01, 10 May 2001 at [33]–[37].

⁴⁰ Voss v Minister of Agriculture HC Auckland M450/97, 5 May 1997.

⁴¹ Auckland Pride v Minister of Immigration [2023] NZHC 758, [2023] 2 NZLR 651; and New Zealand College of Studies Ltd v New Zealand Qualifications Authority HC Auckland M1948-SW01, 16 April 2002.

The interim relief sought

• [115] The interim relief sought by Rangitāne is to suspend the operation of the Bylaw until determination of the substantive application. It appears to me that this is insufficiently targeted. In my view, a more appropriate approach to interim relief would be an order making the Bylaw unenforceable in relation to the use of motorised vehicles by Rangitāne in the Red Zone, for the purpose of customary activities. This could preserve Rangitāne’s position until the determination of the substantive dispute while minimising the risk of environmental damage and the risk to public safety identified by the Council. Interim relief involving the suspension of the operation of the Bylaw as a whole would involve a much greater chance of the risks advanced by the Council materialising. I note also that I consider that environmental damage and risk to members of the public are an unlikely corollary of Rangitāne undertaking customary activities. Indeed, Ms McKechnie confirmed that the Council accepts that Rangitāne would exercise their customary rights and responsibilities in accordance with tikanga. I accept that interim relief of this nature may cause some limited confusion in the community.

• [116] I discussed with counsel the possibility of narrower interim relief, asking Ms Radich’s view on an interim order of the kind outlined above. Ms Radich said that given Rangitāne’s understanding that the Council is intending the Bylaw to be self- policing, members of Rangitāne do not want to be in the position where they may be challenged by members of the public as to their right to use a vehicle in the Red Zone. Ms Radich submits that it would constitute an intrusion on their mana to have to demonstrate the right to be on the beach exercising customary rights to avoid infringement. Ms Radich did not suggest any ways in which this issue could be managed, reiterating that the preference of Rangitāne was for an exemption in the Bylaw for all iwi exercising customary rights and responsibilities.

Community issues and prejudice to others

• [117] I accept the Council’s submission that the use of vehicles on the beaches generally creates a public health and safety risk associated with the use of beaches as coastal highways. That is one type of mischief that the Bylaw was explicitly designed to prevent. However, this can only be in a general sense, as no specific risks were

identified. The same can be said of the risks of permanent/irreversible environmental damage, and/or community confusion. Nonetheless, it is clear Rangitāne accept that risks of environmental and ecological damage have arisen since the increased access to the Bylaw area. Further, Mr Wheeler said that the Council is not currently actively monitoring or enforcing the Bylaw, and no evidence was provided as to current compliance.

Delay in seeking interim relief

• [118] The Council alleges that Rangitāne has delayed in bringing their application for interim relief. I do not consider this is a factor that strengthens the Council’s opposition. Although the decision to adopt the Bylaw was made on 2 March 2023, and Rangitāne’s application was filed on 26 June 2023, that is a relatively short period. Further, prior to that time, Rangitāne attempted to resolve the issue of interim relief without resorting to the present application, first notifying the Council of their intention to file proceedings on 8 June 2023. While there was some delay, it was not of a nature so as to result in prejudice if interim relief is granted.⁴²

Expected duration of interim relief

• [119] As noted, the substantive hearing is scheduled for 20 and 21 March 2024. That does not appear to me to create any issues which would on their own, justify dismissing the application for interim relief. It would be a duration of six to seven months, plus any time taken to receive judgment. However, as discussed above, I accept that if the entire Bylaw was suspended, the expected duration of relief would be a greater issue given it would apply over the spring and summer months, compared to relief that provided only for the use of motor vehicles in the Red Zone in the course of undertaking customary activities.

• [120] I note also that I do not accept Rangitāne’s argument that the time between the Kaikoura earthquake and the commencement of the Bylaw indicates that there is no urgency to address the environmental harm and public health and safety risks raised by the Council. The reality is that the Council did take time in developing the Bylaw,

⁴² Compare Hayes, above n 39.

but this is not a matter that I consider supports a finding that the risks sought to be addressed by the Bylaw are unlikely to come to fruition in the period in which interim relief would apply. I consider this to be a neutral factor.

Consideration of all the circumstances and the overall justice of the case

• [121] In sum, I consider that Rangitāne has a position to preserve, and that parts of their case are reasonably arguable on the material that is currently before this Court. I consider that the Council’s allegations as to delay are not such that would prevent the granting of the relief sought by Rangitāne.

• [122] I also accept that, broadly speaking, the Bylaw responds to significant risks of environmental harm as well as public health and safety issues. These risks are undoubtedly greater over the spring and summer months given the increased likelihood of members of the public using the coastline in question.

• [123] I appreciate that in their submission on the proposed Bylaw, Rangitāne sought an exception from the application of the Bylaw for customary activities carried out by tangata whenua, and that the Council ultimately did not adopt that approach. It is perhaps surprising then that there appears to be no detailed substantive discussion of the exemption proposed, or the concerns underlying it, in the Hearing Panel’s Report.

• [124] The Court has a broad discretionary power to make orders under s 15 of the Judicial Review Procedure Act. I record that I would have granted Rangitāne interim relief, in the form of an interim order that the Council not enforce the Bylaw against members of Rangitāne using motor vehicles (being ATV/UTVs) within the Red Zone for the purpose of undertaking customary activities, had it not been for the clear position taken by Ms Radich that this was not an order Rangitāne wanted. In my view this would have been an order open to me under s 15 as an order “prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power”. Further, it would have properly accounted for all the circumstances and overall justice of the case, as well as being necessary to preserve Rangitāne’s position.
• [125] However, I am not satisfied that the suspension of the operation of the Bylaw in its entirety, as sought by Rangitāne as interim relief, is similarly justified. I do not consider that such relief is proportionate. This is partly because of the lack of evidence before the Court on matters which in the present case weigh in the exercise of the Court’s discretion. There was little evidence before me about the extent of the use of the Red Zone by Rangitāne for customary activities. This meant that the Court’s ability to assess the likely impact of relief being granted was limited. Rather Rangitāne seemed to prefer to rely on the restriction on their access as a matter of principle.

• [126] Nor was there any evidence before me about the extent of ongoing use of the Red Zone because of the exception provided in the Bylaw for existing commercial fishing. As I understand it, while the use of the beach by Burkhart Fisheries Ltd, Lanfar Holdings (No 4) Ltd and Dominion Salt Ltd is constrained by the areas marked as “Business Exempt Area” on the Bylaw map, there is no explicit geographic limitation applicable under the more general exception found in cl 9(b) for commercial fishing. The evidence given of the unhospitable nature of much of the coastline (including evidence given for Rangitāne) rather suggests that those involved in commercial fishing may be constrained to using the marked boat launching areas should they wish to come onto the beach having launched elsewhere. On the face of it then, and without any evidence addressing the point, I am not convinced that this exception is significant in the sense advanced by Rangitāne.⁴³

• [127] On the other hand, there is considerable information before the Court that confirms the concerns about environmental damage and health and safety. Balancing that evidence against the residual uncertainty of the matters discussed above, my view is that it is not appropriate to suspend entirely the Bylaw’s operation over the spring and summer months pending the hearing of the substantive claim in March 2024.

Result

• [128] Accordingly, for the reasons above, Rangitāne’s application for relief is dismissed.

43. I observe also that there is no discussion of the application and effect of this exception in the Hearing Panel Report.

Costs

• [129] I reserve costs until the substantive claim has been determined.

McQueen J

Solicitors:

Radich Law, Blenheim for Applicants Simpson Grierson, Wellington for Respondent