Judge rules Urewera hut destruction decision-making process unlawful

Mangapouri Hut at Ruataahuna was one of 29 in a network of 53 Department of Conservation huts earmarked by Te Uru Taumatua to be “closed and removed” last October. Picture by Ben Piggot

A High Court judge says the iwi managers of Te Urewera and the Crown acted unlawfully in a decision that led to the demolition of more than half a network of  backcountry huts.

Twenty-nine of an overall 53 huts in Te Urewera were burned down last October at the direction of Te Uru Taumatua (TUT), the post settlement governance entity for Tūhoe, responsible jointly with the Department of Conservation (DoC) for operational management of Te Urewera.

Nine of the huts had been exclusively used by DoC biodiversity staff working on long-running conservation projects within Te Urewera.

The destruction of the huts followed a decision of Te Urewera board to decommission DoC infrastructure within Te Urewera and was supported by the DoC director-general Penny Nelson.

It caused public outcry and a court action by Tūhoe man Wharenui Tuna (of Te Whakatane hapū), which resulted in an order on November 8 for TUT to cease its destruction of any further huts pending a full court hearing.

Notwithstanding, as many as another 10 were destroyed. However, TUT said it wasn’t responsible for those and had referred the matter to police.

A full hearing of Mr Tuna’s application for a judicial review of the decision to get rid of the huts was heard last month in the High Court at Rotorua.

In findings released online yesterday, Justice Mathew Downs said the director-general and TUT had acted unlawfully in various respects. 

He stressed the case was not about the demolition itself — which could have been legally carried out — but about the decision-making process behind it.

“I accept the board and chief executive consider the huts a long-standing symbol of colonial oppression, and I assume many others share this view, too. I accept also the Crown supported the huts’ demolition, and the (Te Urewera) Act contemplates demolition. However, as I observed at the outset, the case is not about the huts’ demolition. Rather, it is about the lawfulness of associated decision-making,” the judge said.

Significantly, TUT and the board had breached principles of Te Urewera Act 2014 in failing to ensure as far as possible that — the indigenous ecological systems and biodiversity of Te Urewera are preserved, Tūhoetanga, which gives expression to Te Urewera, is valued and respected, and freedom of public entry and access to Te Urewera is preserved.

In relation to biodiversity, the judge referred to the extensive evidence filed in support of Mr Tuna’s case, including affidavits of former DoC officers about the effects of the loss of “biodiversity huts” — huts that were used as bases for conservation work, including the trapping of predators to protect endangered indigenous species such as kōkako, kiwi, kākā and whio.

These species had been able to flourish due to efforts by DoC to keep areas identified as core conservation areas free of possums and other pests.

Ms Ani Assen, a pest control contractor who had worked in Te Urewera for 14 years, had also given evidence, saying her contract was terminated by TUT due to lack of accommodation for trappers after destruction of the biodiversity huts.

Ms Assen said: “the removal of the huts is very upsetting. The result is that we are going to end up with a skeleton bush with pests and very, very few birds left.”

Judge Downs said it was significant that even at the time of the hearing (over a year after the decision to destroy the huts), there was no documented plan to replace the hut accommodation in Te Urewera.

He also found that TUT acted unlawfully by demolishing the huts without having in place an annual operational plan, and that TUT and DoC’s director-general acted unlawfully by failing to prepare an annual operational plan for the past two years, as they were required to do by the legislation.

Further, a post-hoc attempt to rectify the situation with an annual plan prepared 376 days after the expiry of the relevant year was a “striking example of reviewable error” by the director-general.

While the court ruled in favour of nearly all Mr Tuna’s claims, it found the board and TUT had not acted unlawfully in relation to consultation.

The judge has deferred his decision on relief (remedies that should be granted) until the new year.

Mr Tuna said he was “delighted” with the court’s decision and felt vindicated in his challenge to the actions of all three respondents.

His evidence in the case had included him describing to the court how Tūhoetanga was affected by the destruction of the huts, which had long provided shelter and a means for him, his whānau and hapū to connect with Te Urewera.

“Knowing that the huts are there gives us the opportunity to connect with Te Urewera, to stay in Te Urewera, to spend time and reflect.

“The huts gave us the opportunity to take our tamariki into Te Urewera to transfer inter-generational knowledge — to encourage our tamariki to make that same connection and appreciate their whakapapa and history.”

Asked for comment by The Gisborne Herald, the DoC said it “has received the decision and is currently considering it”.