High Court Judgments of Public Interest
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Case number
[2024] NZHC 3794
Date of Judgment
19 December 2024
Summary
This judgment concerns two appeals by Te Rūnanga o Ngāti Whātua and Royal Forest and Bird Protection Society of New Zealand Inc against the Environment Court interim decision indicating that consent for a large new landfill in the Wayby Valley might be approved on satisfaction that specified effects management measures will adequately address key effects. There is also application by Ngāti Manuhiri to strike out the Te Rūnanga appeal.
Te Rūnanga Appeal:
Te Rūnanga claimed that the Court: was wrong about who held mana whenua in respect of the site; failed to make findings about relative strength in accordance with Ngāti Maru; and should have but failed to treat Ngāti Whātua’s tikanga position as a cultural bottom line given that cl E3.3(5) of the Auckland Unitary Plan (AUP) requires that significant adverse effects on mana whenua values must be avoided. Te Rūnanga also claimed that the Court should have rejected the application because of the inadequacy of the alternative site assessment. Finally, Te Rūnanga claimed that inadequate regard was given to the Waste Minimisation Act and the Waste Minimisation Plan.
Held: Key factual findings about mana whenua rohe were available to the Environment Court, including that Ngāti Manuhiri have a more intimate relationship with the site of the Landfill. It would have been better for the Court to overtly apply the Ngāti Maru three pronged approach to strength of relationship issues for transparency and cogency reasons. Nevertheless the Court was satisfied the Environment Court adequately addressed the relevant matters. Importantly the Environment Court gave close attention to the mana whenua values of Ngāti Whātua, Te Uri o Hau and Ngāti Whātua Ōrākei. In relation to tikanga bottom lines, in the present case there is also a major obstacle to finding that the tikanga of a particular iwi is a cultural bottom line because, among other things, all affected iwi and hapū might legitimately claim that their tikanga position is a bottom line. What was required was a process of reconciliation and balancing, having regard to several factors including the strength of relationship while also recognising, as far as possible, the relational interests and responsibilities of all mana whenua. The Environment Court’s approach to alternative sites and waste minimisation was not obviously flawed. In addition, the appeal was premature because the Court had not made any final findings as to whether the effects of the proposed activity could be managed appropriately, and in respect of key freshwater effects, to a no material harm level.
Forest and Bird Appeal:
A key feature of the Forest and Bird appeal is that the Court failed to apply the directive NPS-FM “avoid” policies as bottom lines by adopting a “pragmatic and proportional”, as well as a “holistic” approach to the assessment of effects and the interpretation of the “avoid” policies. They also claim that the Court’s “no material harm” approach to the “avoid” requirement was flawed. The Court is also said to have erred because it interpreted Policy E13.3 as relating to only discharge effects when it expressly requires that effects of new landfills must be avoided.
Held: the “pragmatic and proportional” approach was not a flawed “overall judgment” or “blender” approach but rather the Court employed an appropriate balancing approach commensurate with the purposes of the NPS-FM policies. However, the Court was wrong to find that only the policies relating to mauri were bottom lines. An exceptions pathway approach (as per East West Link) was appropriate in respect of the NPS-FM “avoid” policies. In identifying the criteria for the exceptions pathway, a structured balancing was mandated, making it necessary to take into account the policies of the AUP that recognise infrastructure and mana whenua values. In any event, because the Environment Court adopted a no material harm approach, this “bottom line error” was not material to the outcome. Further this appeal was also premature for many of the same reasons as the Te Rūnanga appeal. “Material harm” is an appropriate standard for the “avoid” policies in this context. The Supreme Court in Trans-Tasman and Port Otago endorsed no material harm as a valid measure of “avoid”. Whether no material harm arises, including by reason of offset, is a matter for the Court as the expert trier of fact. Whether they are right or wrong about that cannot sensibly be assessed in this Court (if at all) until the final findings are made about the scale of such effects. Policy E13.3 when read in context, does not require that all effects of new landfills must be avoided. The reading advanced by Forest and Bird would cut across the scheme of the AUP.
One further finding of some general interest is that the principle against retrospective effect does not apply to the NPS-FM policies introduced after the application commenced because, in short, WM has no existing rights or interests affected by the new NPS-FM policies.
Strike out:
While the appeals were dismissed, they were not obviously meritless. One obvious problem for both appeals is that they were premature given key findings as to effect had yet to be made. It was not yet clear that consent would be granted. The points of law therefore were to be tested against a hypothetical.
Outcome: The appeals and the strike out are dismissed.
Te Rūnanga Appeal:
Te Rūnanga claimed that the Court: was wrong about who held mana whenua in respect of the site; failed to make findings about relative strength in accordance with Ngāti Maru; and should have but failed to treat Ngāti Whātua’s tikanga position as a cultural bottom line given that cl E3.3(5) of the Auckland Unitary Plan (AUP) requires that significant adverse effects on mana whenua values must be avoided. Te Rūnanga also claimed that the Court should have rejected the application because of the inadequacy of the alternative site assessment. Finally, Te Rūnanga claimed that inadequate regard was given to the Waste Minimisation Act and the Waste Minimisation Plan.
Held: Key factual findings about mana whenua rohe were available to the Environment Court, including that Ngāti Manuhiri have a more intimate relationship with the site of the Landfill. It would have been better for the Court to overtly apply the Ngāti Maru three pronged approach to strength of relationship issues for transparency and cogency reasons. Nevertheless the Court was satisfied the Environment Court adequately addressed the relevant matters. Importantly the Environment Court gave close attention to the mana whenua values of Ngāti Whātua, Te Uri o Hau and Ngāti Whātua Ōrākei. In relation to tikanga bottom lines, in the present case there is also a major obstacle to finding that the tikanga of a particular iwi is a cultural bottom line because, among other things, all affected iwi and hapū might legitimately claim that their tikanga position is a bottom line. What was required was a process of reconciliation and balancing, having regard to several factors including the strength of relationship while also recognising, as far as possible, the relational interests and responsibilities of all mana whenua. The Environment Court’s approach to alternative sites and waste minimisation was not obviously flawed. In addition, the appeal was premature because the Court had not made any final findings as to whether the effects of the proposed activity could be managed appropriately, and in respect of key freshwater effects, to a no material harm level.
Forest and Bird Appeal:
A key feature of the Forest and Bird appeal is that the Court failed to apply the directive NPS-FM “avoid” policies as bottom lines by adopting a “pragmatic and proportional”, as well as a “holistic” approach to the assessment of effects and the interpretation of the “avoid” policies. They also claim that the Court’s “no material harm” approach to the “avoid” requirement was flawed. The Court is also said to have erred because it interpreted Policy E13.3 as relating to only discharge effects when it expressly requires that effects of new landfills must be avoided.
Held: the “pragmatic and proportional” approach was not a flawed “overall judgment” or “blender” approach but rather the Court employed an appropriate balancing approach commensurate with the purposes of the NPS-FM policies. However, the Court was wrong to find that only the policies relating to mauri were bottom lines. An exceptions pathway approach (as per East West Link) was appropriate in respect of the NPS-FM “avoid” policies. In identifying the criteria for the exceptions pathway, a structured balancing was mandated, making it necessary to take into account the policies of the AUP that recognise infrastructure and mana whenua values. In any event, because the Environment Court adopted a no material harm approach, this “bottom line error” was not material to the outcome. Further this appeal was also premature for many of the same reasons as the Te Rūnanga appeal. “Material harm” is an appropriate standard for the “avoid” policies in this context. The Supreme Court in Trans-Tasman and Port Otago endorsed no material harm as a valid measure of “avoid”. Whether no material harm arises, including by reason of offset, is a matter for the Court as the expert trier of fact. Whether they are right or wrong about that cannot sensibly be assessed in this Court (if at all) until the final findings are made about the scale of such effects. Policy E13.3 when read in context, does not require that all effects of new landfills must be avoided. The reading advanced by Forest and Bird would cut across the scheme of the AUP.
One further finding of some general interest is that the principle against retrospective effect does not apply to the NPS-FM policies introduced after the application commenced because, in short, WM has no existing rights or interests affected by the new NPS-FM policies.
Strike out:
While the appeals were dismissed, they were not obviously meritless. One obvious problem for both appeals is that they were premature given key findings as to effect had yet to be made. It was not yet clear that consent would be granted. The points of law therefore were to be tested against a hypothetical.
Outcome: The appeals and the strike out are dismissed.
Case number
[2024] NZHC 3745
Summary
Customary marine title granted under Marine and Coastal Area (Takutai Moana) Act 2011 to seven applicants in the Northern Wairarapa coast, from southern bank of the Whareama River to Ouepoto in the north. All CMT orders made from the mean high-water springs (MHWS) out to five kms at sea. Representation and mandate issues addressed. Some CMT orders made on basis of shared exclusivity. Commercial fishing found not to constitute "substantial interruption" of applicants' customary rights.
Judgment issued on an interim basis. Protected customary rights and effect of Combined Marine and Coastal Area (Takutai Moana) Act 2011 proceedings [2024] NZSC 164 to be addressed in separate judgment.
Judgment issued on an interim basis. Protected customary rights and effect of Combined Marine and Coastal Area (Takutai Moana) Act 2011 proceedings [2024] NZSC 164 to be addressed in separate judgment.
Case name
Case number
[2024] NZHC 3824
Date of Judgment
13 December 2024
Summary
Partially successful judicial review of decisions by government departments and responsible Ministers under the Fisheries Act 1996, Wildlife Act 1953 (WLA) and Marine Mammals Protection Act 1978 (MMPA) relating to protection and conservation of marine wildlife and marine mammals.
Findings include that the Director-General for Primary Industries had failed to carry out an assessment under s 294 of the Fisheries Act before contracting out certain statutory functions; DOC's policy that the receipt of non-fish or protected species reports from commercial fishers was adequate to meet reporting requirements under ss 63, 63A and 63B of the WLA and ss 9 and 16 of the MMPA was unlawful; Director-General of Conservation's failure to present population management plans (PMPs) to Minister under s 141 of the WLA and s 3H(l) of the MMPA was unlawful; and s 14G(a) of the WLA and s 3F(a) of the MMPA do not preclude PMPs from including a maximum allowable level of fishing-related mortality when the threatened species cannot achieve a non-threatened status with 20 years.
Findings include that the Director-General for Primary Industries had failed to carry out an assessment under s 294 of the Fisheries Act before contracting out certain statutory functions; DOC's policy that the receipt of non-fish or protected species reports from commercial fishers was adequate to meet reporting requirements under ss 63, 63A and 63B of the WLA and ss 9 and 16 of the MMPA was unlawful; Director-General of Conservation's failure to present population management plans (PMPs) to Minister under s 141 of the WLA and s 3H(l) of the MMPA was unlawful; and s 14G(a) of the WLA and s 3F(a) of the MMPA do not preclude PMPs from including a maximum allowable level of fishing-related mortality when the threatened species cannot achieve a non-threatened status with 20 years.
Case name
Case number
[2024] NZHC 3370
Date of Judgment
11 December 2024
Summary
Defendant charged with murder and sentenced to 17 years six months' imprisonment with a minimum period of seven years.
Case name
Case number
[2024] NZHC 3691
Date of Judgment
05 December 2024
Summary
Sentencing notes. Manslaughter. Three years, three months imprisonment.
Case name
Case number
[2024] NZHC 3689
Date of Judgment
05 December 2024
Summary
Summary: Wire Reddington found guilty of murder following a jury trial. Sentenced to life imprisonment with a minimum period of imprisonment of 14 years.
Held: Section 104(1 )(e) and (g) of the Sentencing Act 2002 made out. The murder was committed with a high level of brutality and callousness, and the victim, Jamie Gill was particularly vulnerable.
Held: It would be manifestly unjust to sentence Wire Reddington to a minimum period of imprisonment of 17 years on account of his traumatic upbringing and contributing mental state.
Held: A MPI of 14 years appropriately addressed the principles of sentencing for murder (s 103(2)), was comparable with other sentences, and properly reflected the offence and offender.
Held: Section 104(1 )(e) and (g) of the Sentencing Act 2002 made out. The murder was committed with a high level of brutality and callousness, and the victim, Jamie Gill was particularly vulnerable.
Held: It would be manifestly unjust to sentence Wire Reddington to a minimum period of imprisonment of 17 years on account of his traumatic upbringing and contributing mental state.
Held: A MPI of 14 years appropriately addressed the principles of sentencing for murder (s 103(2)), was comparable with other sentences, and properly reflected the offence and offender.
Case name
Case number
[2024] NZHC 3499
Date of Judgment
21 November 2024
Summary
Sentencing - the offender had pleaded guilty to a charge of murdering his former partner and the mother of their six-year-old son - the offender had caused the victim's death by stabbing her on seven occasions after they became involved in a verbal altercation - the offending occurred in the victim's home in circumstances where other members of the victim's family were present but did not witness the stabbing take place HELD that although the offending was bad, it did not reach the level required to engage s 104(1 )( e) of the Sentencing Act 2002 - the aggravating features of the offending meant that a minimum term of imprisonment of 14 years six months was appropriate - discount of 12 months given for guilty plea together with a further discount of six months to reflect personal factors identified in reports tendered to the Court - offender sentenced to life imprisonment and ordered to serve 13 years before being eligible to apply for parole.
Case name
Case number
[2024] NZHC 3110
Date of Judgment
31 October 2024
Summary
See media release
Media Release
- MR [2024] NZHC 3110 (PDF, 185 KB)
Case name
Case number
[2024] NZHC 3069
Date of Judgment
21 October 2024
Summary
Approval of settlement under s 95 of the Criminal Proceeds (Recovery) Act 2009. Two respondents ordered to meet a profit forfeiture order of $4 million in connection with the derivation of benefits from significant criminal offending. That offending confined to convictions already entered against the respondents with one additional incident: contravention of a prohibition issued by WorkSafe on 16 October 2015.
Case number
[2024] NZHC 3016
Date of Judgment
16 October 2024
Summary
An application for a writ of habeas corpus was not finally determined in Chief Executive of the Department of Corrections v Shaw (Results) and (Reasons). As Mr Shaw continued to deteriorate, an urgent hearing was convened on Sunday to continue the habeas corpus application, or alternatively, to pursue interim declarations under the Judicial Review Procedure Act 2016. This is the Reasons judgment in that application (Shaw v Chief Executive of the Department of Corrections).
Held: It is not appropriate to grant an application for habeas corpus to challenge the conditions of imprisonment.
Held: The Court will be cautious before intervening in operational decisions in the custodial environment by requiring Corrections to take positive steps.
Held: The test for interim orders in judicial review is whether the orders are necessary to preserve the position of the applicants. In all the circumstances, the position to not consume fluids in a certain part of the prison was a decision by Mr Shaw, that he could choose to change. This was not a comparable case with other applications for interim or urgent judicial review declarations. There was no identifiable position necessary to protect.
Noted: The Court has endeavoured to uphold and respect Mr Shaw's wishes in the other substantive application.
Held: It is not appropriate to grant an application for habeas corpus to challenge the conditions of imprisonment.
Held: The Court will be cautious before intervening in operational decisions in the custodial environment by requiring Corrections to take positive steps.
Held: The test for interim orders in judicial review is whether the orders are necessary to preserve the position of the applicants. In all the circumstances, the position to not consume fluids in a certain part of the prison was a decision by Mr Shaw, that he could choose to change. This was not a comparable case with other applications for interim or urgent judicial review declarations. There was no identifiable position necessary to protect.
Noted: The Court has endeavoured to uphold and respect Mr Shaw's wishes in the other substantive application.
Case number
[2024] NZHC 2976
Date of Judgment
11 October 2024
Summary
Following an oral decision at the conclusion of Thursday's hearing, the Court has confirmed the validity of Mr Francis Shaw's advance directive to receive no medical treatment or intervention for the duration of his politically motivated hunger strike. Mr Shaw is a serving prisoner, who has been striking for 103 days. Corrections and Health New Zealand are entitled to rely on, and act in accordance with Mr Shaw's clearly stated wishes.
Case name
Case number
[2024] NZHC 2951
Date of Judgment
11 October 2024
Summary
Sentencing on three charges: kidnapping, refusing to provide a blood specimen, and driving while prohibited. Defendant forcibly restrained victim from getting out of defendant's car. Victim was frightened of the defendant and vulnerable. Starting point 2 years and 9 months for kidnapping. One month added for driving offending. Discounts of 15% for age and prospect of rehabilitation, and 5 months for time on electronically monitored bail. Home detention appropriate because of the defendant's age and prospect of rehabilitation, and because the defendant has experienced incarceration in consequence of offending. End sentence 12 months' home detention. Disqualification period of 6 months.
Case name
Case number
[2024] NZHC 2910
Date of Judgment
08 October 2024
Summary
Sentencing on two charges: manslaughter, and reckless driving causing injury. Defendant consumed alcohol and cannabis, drove at extraordinary speeds, overtook vehicles recklessly, including on a double yellow line, and caused significant injury. Case a very bad example of its kind. Starting point six and a half years' imprisonment. Discounts of 25 percent for guilty pleas, six percent for remorse and 10 percent for rehabilitative efforts. One-month uplift for previous convictions. End sentences of: three years and 11 months' imprisonment for the manslaughter; and two years' imprisonment, to be served concurrently, for the reckless injury. Disqualification period of four years.