The Marlborough District Council adopted a bylaw that came into effect on July 2023 that restricted vehicle access on the east coast. Photo / Marlborough District Council
The Marlborough District Council adopted a bylaw that came into effect on July 2023 that restricted vehicle access on the east coast. Photo / Marlborough District Council
Maia Hart, Local Democracy Reporter
A Marlborough iwi has been unsuccessful in its challenge of a council bylaw restricting vehicle access on the South Island’s east coast.
The East Coast Vehicle Bylaw, which came into effect on July 1, 2023, aimed to protect the environment bybanning vehicles on beaches from the Awatere River to south of the Waima/Ure River, except for in a “yellow zone”.
Te Rūnanga a Rangitāne o Wairau Trust challenged the lawfulness of the bylaw, and the process of adopting it, in the High Court over two days in May 2024.
Rangitāne o Wairau Group kaiwhakahaere matua (general manager) Corey Hebberd said the decision was disappointing, but the iwi would keep working to secure its customary rights in the area.
In Justice Helen McQueen’s judgment, released on February 3, she dismissed Rangitāne’s claims that the council consulted with them differently to another iwi with interests in the area, that the council had breached Te Tiriti o Waitangi, and that the decision relied on inaccuracies in a technical report, among other claims.
Rangitāne first expressed concerns to the council in November 2019 about the iwi’s lack of involvement in the bylaw process and said the council misunderstood the iwi’s cultural status in the area.
A technical report produced earlier that year had described Ngāti Kuri (Ngāi Tahu) as mana whenua of the area, while Rangitāne was described as having a “longstanding connection” to the area.
The council agreed to draw up a draft bylaw in December 2020, and appointed three commissioners for a panel to hear submissions and make recommendations to the council.
On July 8, 2021, the council offered both Rangitāne and Ngāti Kuri the opportunity to nominate a representative to the panel on the condition the iwi would not be able to make a submission. Ngāti Kuri nominated a representative, but Rangitāne did not, so that it could make a submission.
Ngāi Tahu wrote a letter to the council in October 2021, expressing support for the council’s consultation with Ngāti Kuri and the way it had approached their status.
Justice McQueen said the letter, which was forwarded to the panel, constituted a submission, which went against the council’s directive that an iwi with a panel representative could not make a submission, and was a breach of legitimate expectation.
Map of the new east coast bylaw restrictions. Photo / Marlborough District Council
However, the letter did not have any material effect on the decision, Justice McQueen said. Despite the appearance of bias, the “yellow zone” of the bylaw was more in Rangitāne’s favour.
The technical report was not heavily relied upon by the panel, so any misrepresentation of Rangitāne’s cultural claim to the area was also immaterial, Justice McQueen said.
She also dismissed the claim that the bylaw was a breach of Te Tiriti, saying the council had met its obligations to the Treaty as set out in the Local Government Act.
Justice McQueen agreed the council extensively consulted with Rangitāne before public notification of the bylaw process and until the bylaw was passed.
“It is concerning that Rangitāne had to make first contact with the council to seek information on November 29, 2019, however I consider this was cured by the council’s subsequent conduct,” Justice McQueen said.
“The opportunities for Rangitāne to participate in the decision-making went far beyond that afforded to the rest of the community.”
In a statement, Hebberd said legal action was never the iwi’s first choice, but in this case it felt its hands were tied.
“We took this legal step to ensure our people’s ability to access sites of cultural significance could continue, and to preserve our rights under Te Tiriti o Waitangi, and we will continue to work to achieve that outcome,” he said.
“We have fought for many years to protect our rights and interests as kaitiaki and tangata whenua of this area, and it is disappointing that we still find ourselves in this position today.”
He said the iwi did not disagree the area was a “special place” that needed to be protected.
“But that needs to be balanced with, and not at the expense of, customary rights, rights that have already been agreed to and litigated over many years.
“We are open – and have always been open – to meaningful dialogue with the council and other stakeholders to find a path forward that respects both the environment and the customary rights of tangata whenua.”
Marlborough mayor Nadine Taylor said it was a significant decision for the council and the protection of Marlborough’s unique and ecologically significant east coast.
“The judgment confirms that the council’s bylaw development process was robust and reasonable and that council did not breach its obligation to consult Rangitāne.
“Council can now move forward and promote the protection of this coastline through public education, explaining how the bylaw works and profiling the special animal, bird and plant species that call it home.”
LDR is local body journalism co-funded by RNZ and NZ On Air.
