On Thursday, June 23 this year, the Supreme Court sent a notification, so Averil and Warwick Norman knew when the decision was coming, but not what it was. The decision, said the court, would come through at 2pm on the next business day, but Friday was the newly minted Matariki holiday, then Saturday and Sunday dragged their heels, and by Monday June 27, still trying to settle their nerves, the couple set off to watch the Elvis Presley biopic. At 2pm they were back though, waiting in front of the computer.
The decision arrived, and they sat for 10 minutes, ‘overwhelmed’, then began phoning their supporters. It was, for the Normans, the end of a two-and-a-half-year legal rollercoaster. They hadn’t won every part of their judicial challenge to the Tūpuna Maunga Authority (TMA), but as that administering body goes about reforming the physical and spiritual settings of Auckland’s volcanic cones, the Normans’ review had confirmed the legal right of affected communities, and the people of Auckland, to have their say on how it’s done.
Then the saga’s next shoe dropped. The authority published a draft appendix to its broad-based Integrated Management Plan (IMP) for Auckland’s maunga under the heading ‘Native Restoration of Tūpuna Maunga’ and welcomed public submissions. The draft detailed the removal of more than 1000 exotic trees from Ōwairaka/Mt Albert, Puketāpapa/Mt Roskill, Ōtāhuhu/Mt Richmond and Te Tātua a Riukiuta/Big King as part of an ongoing revegetation programme shaped around restoring the mauri and wairua of the Tūpuna Maunga.
The revegetation plans include Puriri ‘warm forest’ ngāhaere and some 68,400 native plantings. Many thousands are already in the ground. The TMA planning has been underway on these maunga for some time, but, until June 27, the authority had seen no need for public consultation on the detail, including the speed with which felling of the exotics is carried out. The authority has now opened a two-month window for submissions, to October 4 this year, and hearings that will extend beyond that.
The dispute that triggered the judicial review took shape in 2019. That year contractors had already felled more than 400 exotic trees on Mangere mountain, Maungarei/Mt Wellington, and Ohuiarangi/Pigeon Mountain, before a mail drop of October 29 informed Ōwairaka/Mt Albert locals they were next. TMA contractors would begin felling the maunga’s 345 exotic trees on Monday, November 11, and the operation would last a month.
Local outrage – not at the revegetation plan itself, but the lack of any local consultation, and the speed of the planned felling – quickly coalesced into an ‘Honour the Maunga’ group that lined up on that Monday to block access to the tree-felling contractors. Even Auckland Councillor Christine Fletcher, the inaugural deputy chair of the TMA, showed up in support that morning, swinging a big white SUV across the reserve entrance and blocking it off twice over. Opposition to the felling plan then turned into an increasingly fractious stalemate between Honour the Maunga and the authority, until chair of the latter Paul Majurey arranged a hui on the maunga’s playing fields, “to restore the mana of the maunga”.
Averil Norman had showed up at the original November 11 blockade, alerted by a phone call from an old Ōwairaka school friend, Mary Tallon, and she returned to the maunga with her husband on the 28th to join the hui. They’d hoped for a serious discussion of the issues, but were rocked instead, they say, by the turbulent emotion of that morning, animosity one side to another, and someone yelling at her – ‘What’s it like now the boot’s on the other foot?’
The two of them were driving back to their Ponsonby home later, recalls Warwick, feeling “down in the dumps about it”. He’d turned to his wife right then, and said “I can see no way past these issues, aside from seeing them through with civil law.”
People would later wonder why the Normans, a successful business couple, would risk the expense of a judicial review. But they’d both spent their childhoods on and around the city’s maunga. As an Onehunga lad, Warwick had often explored Maungakiekie/One Tree Hill, and later he’d bought his first house on its slopes. Averil’s great grandfather had laid the foundation stone of a Presbyterian Church on the same slopes, and the next Pākehā generation, her grandparents, and the next, her aunts and uncles, had lived on and around Mangere mountain, a farming dynasty so well established that the road leading to Mangere Domain carries her family name – Hastie.
Averil had often explored Ōwairaka/Mt Albert too with her school friend Mary, whose family went back six generations on the slopes. The two school girls often walked the cherry tree lane that Mary’s grandmother planted for her brother, Edgar Penman, killed at Gallipoli.
The Normans had owned the 1844 Coldicutt House in Mt Eden. Averil’s grandmother was born in the house in 1870, and on an impulse Averil had bought it 35 years ago. More recently, she and Warwick had renovated it. The old stone house sat on a third of an acre, a developer’s dream, but the Normans wanted the house and grounds preserved, and in 2021 arranged to sell the house and land at half the market value to an intermediary trust that would gift it to Heritage New Zealand Pouhaere Taonga.
Ōwairaka benefits, the Normans say, from those parts of the exotic forest that are heritage too, and though neither is a member of Honour the Maunga, they share that group’s support for a gradual tree replacement plan – keeping the mature exotics for the provisioning they provide for native birds and insects, and shade, but replacing them with native species as they age, over decades.
The judicial review began in the High Court before Justice Gwyn on June 8, 2020, and the extraordinary power of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 would be front and centre of the review over the next two days. It was Treaty settlement legislation that returned 14 tūpuna maunga to a collective of 13 iwi and hapū across Auckland.
The act set up the TMA to administer the maunga as a co-governance authority evenly balanced between six iwi appointees and six Auckland Council appointees – three from within council, and three from local boards. The Māori appointees chose the chair, and the council appointees the deputy, but there was no division of purpose. The act instructed all members of the authority to have regard for the spiritual and customary world view of the mana whenua when making decisions, as well as regard for the common benefit of those same mana whenua and the other people of Auckland.
The ownership changed, but the maunga would remain as reserves, vested now in a Māori trustee. As reserves, however, they remained subject to the Reserves Act 1977 and the lead counsel for the Normans, Bob Hollyman QC, would base the Normans’ grounds of appeal around the requirements of that act. The authority’s lead counsel, Paul Beverley, would counter often, with the larger imperatives of the Collective Redress Act, not least a section that spelled out that the Reserves Act applied to the maunga but was “subject to the provisions of this (Collective Redress) Act”.
The act’s solemn influence was apparent in Justice Gwyn’s judgment of December 22, 2020. Hollyman had argued the Reserves Act bound an administrator to conserve and protect qualities of ‘pleasantness, harmony and cohesion’ and while the judge agreed that the Normans might sincerely and validly believe the felling of the exotics would breach those qualities, the Collective Redress Act required the authority to put the mana whenua’s world view to the fore, so that the administrator, in this case, was entitled to form a different view as to what qualities should be conserved or protected, including, as the TMA had argued, restoring the maunga to its former, native, state.
Justice Gwyn also dismissed the second ground of the Normans’ review – that the TMA had failed to properly consult the public on the Ōwairaka plan.
The Normans decided to appeal the decision, and it was the Appeal Court where the review would tighten around the “unique” conditions set by the Collective Redress Act for maunga management plans. The Reserves Act specified that any new administrator of a reserve must submit a draft reserve management plan that would then go through a statutory public consultation process. That might seem a near-impossible job for a new administrator tasked with both administering, and transforming 14 separate reserves, a problem the architects of the Collective Reserves Act solved by writing into the legislation as the TMA’s foundational tool a single Integrated Management Plan (IMP) that would embrace all of the maunga.
The TMA had been set up as a transformative administrator, and as the IMP emerged it reflected that mission, laying out a long-term vision, with overarching “values” and “pathways” but was necessarily short on the detail. Two of its overall concepts – “vehicle-free tihi [summits]”, and “inappropriate exotic vegetation” – would encounter public pushback later, but they were written into the plan simply as topics to be dealt with on another day through what it called ‘Individual Tūpuna Maunga Management Plans’.
On February 27, 2016, the TMA began the public consultation process that would satisfy Reserves Act requirements. The draft IMP went through three rounds of an Auckland-wide consultation before being finalised on June 23, 2016, displacing the 12 existing reserve management plans. The TMA then had effective charge of the maunga, and in November 2016 announced that five of them with road access to or near the tihi would soon lose vehicle access. The announcement came as a surprise to five local communities, who’d learn that “vehicle-free tihi and traffic management plans” in the IMP meant sudden barrier arm installations on summit roads. In Devonport the local board, and others, asked for more consultation.
In 2019, the communities around Mangere mountain, Maungarei/Mt Wellington, Ohuiarangi/Pigeon Mountain, and finally Ōwairaka/Mt Albert were similarly surprised that “proactive management of … inappropriate vegetation” in the IMP, meant removal of all the exotic trees.
The two-day appeal began on July 20, 2021, before Justices Cooper, Courtney and Goddard in the High Court’s Number One courtroom. High above the bench, a glass-fronted display case pressed the military colours of a 19th Century British Regiment beside a Union Jack and it was easy to think, amidst the dark woods and gothic arches of a Victorian courtroom that white men in wigs might act with impunity against the interests of the mana whenua here. Except that it’s a different time. Justice Cooper whakapapas back to a Waikato-Tainui lineage, as does one of the Justices on the Supreme Court, and Justice Courtney is a woman.
The Court of Appeal’s decision landed on March 3 this year. It upheld the High Court decision that there’d been no breach of the peace and harmony clauses in the Reserves Act, but it upended the High Court judgment on consultation.
Justice Gwyn had agreed in her High Court judgment that readers of the IMP might reasonably have inferred that an individual Ōwairaka Tupuna Maunga Plan would canvass the revegetation of the maunga in more detail, but there was no statutory obligation for the TMA either to produce such a plan or to consult on any that were produced.
The Court of Appeal endorsed that finding, but it noted also that neither of the two statutory processes that did provide for consultation, the IMP or the TMA’s annual operating plan, made clear the authority’s intentions for Ōwairaka. Nor was there any record of a formal decision on the matter by the TMA itself. The plan was of such significance, said the court, that to ensure the informed public consultation envisaged by the Reserves Act, it needed to have been provided for in the IMP.
The court therefore set aside the TMA’s 2019 decision to fell the Ōwairaka trees. It also set aside the Auckland Council’s 2019 decision to issue a non-notifiable consent for the felling programme. The court considered the consent should have been notifiable.
The TMA then applied to the Supreme Court for leave to appeal. Its application described the Court of Appeal decision as “unworkable”, having introduced an undefined “significance” threshold that would create uncertainty for any reserve administrator having to decide when its existing management plan should be amended. The TMA also sought to introduce what Treaty lawyers sometimes call “the vibe” – a reference to the underlying power of the Treaty of Waitangi and, specifically in this case, its influence on the Reserves Act – but the Supreme Court Justices considered the case “turned on its own facts”. The Supreme Court dismissed the leave to appeal. The Tūpuna Maunga Authority had become the first co-governance body to undergo a judicial review, and the first to have a decision set aside by the courts. The Court of Appeal judgment would stand as case law.
The TMA’s Paul Majurey said the Court of Appeal has created new law that did not exist at the time the Tūpuna Maunga Authority co-governance arrangements were established through bespoke legislation in 2014. He noted also “that neither the High Court nor Court of Appeal criticised any aspects of the restoration programme, including tree removal, rather the Court of Appeal’s focus was on process.”
Declaration of interest: In May 2018 Geoff Chapple helped organise a public meeting at which he presented a petition signed by 1,370 people, to the Tūpuna Maunga Authority chairman, Paul Majurey, protesting the TMA’s lack of local consultation.