Privy Council Appeal No. 43 of 2000

(1) M.A. McGuire and
(2) F.P. Makea	Appellants
	v.
(1) Hastings District Council and
(2) The Maori Land Court of New Zealand	Respondents

	FROM

	THE COURT OF APPEAL OF NEW ZEALAND
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 1st November 2001
	------------------

	Present at the hearing:-
			Lord Bingham of Cornhill
			Lord Cooke of Thorndon
			Lord Hobhouse of Woodborough
			Lord Millett
			Sir Christopher Slade
		  	[Delivered by Lord Cooke of Thorndon]
	------------------

1. 	This case raises an issue about Maori land rights.  The Hastings District Council (Hastings) was proposing at a meeting to be held at 1.00 pm on 29th April 1999 to issue notice of a requirement under section 168A of the Resource Management Act 1991 for the designation of a road (the northern arterial route) intended to link the Hastings urban area and Havelock North to a motorway between Hastings and Napier which was opened that month.  The proposed route would run through inter alia Maori freehold lands known as Karamu GB (Balance), Karamu GD (Balance) and Karamu No 15B. On 23rd April 1999 representatives of the owners filed in the Maori Land Court applications for injunctions under section 19(1)(a) of the Te Ture Whenua Maori Act 1993 (the Maori Land Act 1993) preventing the Council from so designating their lands.  The applications were heard by Judge Isaac, on short notice, on the morning of 29th April 1999.  He had before him affidavits by the applicants Mr Frederick Pori Makea and Mrs Margaret Akata McGuire, and from the Council’s Policy Manager, Mr Mark Anthony Clews; and he heard the applicants in person and Mr Mark von Dadelszen of counsel for Hastings.  He granted interim injunctions.  They were only interim, until the further order of the court, to enable further discussion by the applicants with the Council: a substantive hearing was to be arranged if necessary.  But on 22nd May 1999 Hastings filed a judicial review application in the High Court seeking declarations that the Maori Land Court had acted ultra vires and an order setting aside its decision.

2. 	In the High Court the judicial review application came before Goddard J.  A brief agreed statement of facts and a series of agreed questions of law came to be placed before the judge.  In a judgment delivered on 3rd September 1999 she decided these questions in favour of Hastings.  The Maori applicants appealed to the Court of Appeal, where the case was heard by Richardson P, Henry, Thomas, Keith and Tipping JJ.  In a judgment delivered by the President on 16th December 1999 the appeal was dismissed: [2000] 1 NZLR 679.  The Maori applicants have appealed to Her Majesty in Council by leave granted by the Court of Appeal.

3. 	The case turns partly on the relationship between the Te Ture Whenua Maori Act (henceforth referred to as the MLA) and the Resource Management Act (the RMA).  The directly or indirectly relevant provisions of both were reviewed very fully by Goddard J and to a large extent by the Court of Appeal; and the Board has had the advantage of helpful wide-ranging reviews of these and other enactments by Mr Majurey and Mr Whata for the appellants and Sir Geoffrey Palmer and Mr von Dadelszen for Hastings.  (The second respondent, the Maori Land Court, abides the decision of the Board.)  Their Lordships think that no good purpose would be served by their reciting and commenting on all the statutory provisions having arguably some degree of relevance.  They will concentrate, rather, on the main provisions which they regard as of importance for this case.

The Maori Land Act
4. 	Certainly the Preamble to the MLA and the directions about interpretation in section 2 are important and should be set out in full.  There are both Maori and English versions of the Preamble, and it is sufficient to quote the latter, with a preliminary explanation of some of the terms.  Some meanings are or may be contentious, but for the purposes of the present case it is enough to say that kawanatanga approximates to governance, rangatiratanga to chieftainship, and taonga tuku iho to land passed down through generations since time immemorial.  Whanau may be rendered as family, and hapu as subtribe.  The English version of the Preamble reads –
“Whereas the Treaty of Waitangi established the special relationship between the Maori people and the Crown: And whereas it is desirable that the spirit of the exchange of kawanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi be reaffirmed: And whereas it is desirable to recognise that land is a taonga tuku iho of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of its owners, their whanau, and their hapu: and to facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu: And whereas it is desirable to maintain a Court and to establish mechanisms to assist the Maori people to achieve the implementation of these principles:”

5. 	Section 2 reads:
“2. Interpretation of Act generally -(1)  It is the intention of Parliament that the provisions of this Act shall be interpreted in a manner that best furthers the principles set out in the Preamble to this Act. 

  (2) Without limiting the generality of subsection (1) of this section, it is the intention of Parliament that powers, duties, and discretions conferred by this Act shall be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development, and control of Maori land as taonga tuku iho by Maori owners, their whanau, their hapu and their descendants. 

  (3) In the event of any conflict in meaning between the Maori and the English versions of the Preamble, the Maori version shall prevail.” 

6. 	The MLA is, by its long title, an Act to reform the laws relating to Maori land in accordance with the principles set out in the Preamble to this Act.  Previous statutes relating to the Maori Land Court had tended to be seen as giving that court the role of facilitating the ascertainment and division of title, and the alienation of Maori land.  The jurisdiction was perceived as linked with the former goal of assimilation.  The Act of 1993 has manifestly a different emphasis, which must receive weight in its interpretation.

7. 	Section 6 provides that there shall continue to be a court of record called the Maori Land Court.  It is to have all the powers that are inherent in a court of record and the jurisdiction and powers expressly conferred on it by this or any other Act.  Thus it is a specialised court of limited (though important) jurisdiction – a consideration which underlay the decision of the Court of Appeal in a case not otherwise closely relevant, Attorney-General v Maori Land Court [1999] 1 NZLR 689.  Section 17(1), another section new in the Act of 1993, states that the primary objective of the court in exercising its jurisdiction shall be to promote and assist in:
“(a)	The retention of Maori land and General land owned by Maori in the hands of the owners; and

(b)	The effective use, management, and development, by or on behalf of the owners, of Maori land and General land owned by Maori.”

Some further objectives, which need not be quoted, are then set out in subsection (2).

8. 	In addition to any jurisdiction specifically conferred on the court otherwise than by this section, section 18(1) then lists in (a) to (i) a range of powers, including “(c) To hear and determine any claim to recover damages for trespass or any other injury to Maori freehold land”.  None of these powers are expressed to include judicial review of administrative action or anything tantamount thereto.  Subsection (2) provides that any proceedings commenced in the Maori Land Court may, if the judge thinks fit, be removed for hearing into any other court of competent jurisdiction.

9. 	Section 19 gives jurisdiction in respect of injunctions.  Section 19(1)(a), whereunder the interim injunctions were sought and granted in the present case, empowers the court at any time to issue an order by way of injunction “Against any person in respect of any actual or threatened trespass or other injury to any Maori freehold land”.  Thus it is the counterpart of section 18(1)(c) already mentioned.  Historically section 19(1)(a) goes back to 1909 and Sir John Salmond; but until 1982 the jurisdiction was restricted to granting injunctions against any native or (in more contemporary language) any Maori. Originally “trespass or other injury” may well have had quite a restricted ambit, confined to traditional torts; but in its new context the phrase may well have a new reach.  The question is analogous to that which arose in McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277 as to the contemporary meaning of “public meeting”, which was held to include a press conference such as occurred in that case.  Lord Bingham of Cornhill put it at 292:
“Although the 1955 reference to ‘public meeting’ derives from 1888, it must be interpreted in a manner which gives effect to the intention of the legislature in the social and other conditions which obtain today.”

And Lord Steyn said at 296 that, unless they reveal a contrary intention, statutes are to be interpreted as “always speaking”; they must be interpreted and applied in the world as it exists today, and in the light of the legal system and norms currently in force. In law, he has said elsewhere, context is everything: R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622, 1636.

10. 	The Court of Appeal preferred to leave open the question whether section 19(1)(a) can be read as embracing conduct wider than actual or threatened physical damage to or interference with the possession of land.  The Board is disposed to think that in the context of the Act of 1993, with its emphasis on the treasured special significance of ancestral land to Maori, activities other than physical interference could constitute injury to Maori freehold land.  For example activities on adjoining land, albeit not amounting to a common law nuisance, might be an affront to spiritual values or to what in the RMA is called tikanga Maori (Maori customary values and practices).  But it is indeed unnecessary to decide the point.  Clearly if there were a physical interference, as by unlawful bulldozing in anticipation of the taking of Maori freehold land or as incidental to roadworks on adjoining land, the Maori Land Court would have jurisdiction under section 19(1)(a).  The first respondent (Hastings) does not dispute this.  Nor can it be disputed that a notice of designation, whether lawful or unlawful, and though appealable, can have a blighting effect which might well be described as an injury.  The fundamental difficulty for the appellants lies deeper.  It is that, as already mentioned, the Maori Land Court is not given judicial review jurisdiction.  There are remedies under the RMA, to which their Lordships will turn later, and there is the residual judicial review jurisdiction of the High Court.  But, like both the High Court and the Court of Appeal in New Zealand, the Board is unable to stretch the scope of the MLA so far as would be needed to uphold these interim injunctions.

11. 	For the appellants reliance was placed on Boddington v British Transport Police [1999] 2 AC 143 and the line of recent English cases there applied.  In Boddington the House of Lords held that in a summary criminal prosecution the defendant was entitled to raise before the magistrates for adjudication a defence that the byelaw under which he was being prosecuted, or an administrative act purportedly done under it, was ultra vires.  The actual decision does not apply to the present case, as the Maori Land Court was not exercising any criminal jurisdiction.  What counsel for the appellants have invoked are passages in the speeches to the effect that a collateral challenge to the validity of an administrative decision may be raised in civil proceedings also, as when the defendant is being sued civilly by a public authority: see the observations of Lord Irvine of Lairg LC at 158 and 160-162, and Lord Steyn at 171-173.  These passages are qualified, however, by recognition that a particular statutory context or scheme may exclude such collateral challenges, Reg v Wicks [1998] AC 92 being an example in the planning field.  Wicks itself, a case of a criminal prosecution and statutory provisions different from those of the present case, is not particularly helpful for present purposes.  Still, as will appear from the discussion of the RMA later in this judgment, there are strong grounds for regarding the RMA as an exclusive code of remedies ruling out any ability of the Maori Land Court to intervene in this case.

12. 	But in any event there is the earlier and more basic obstacle already discussed, that is to say the limited and specialised jurisdiction of the Maori Land Court.  In the typical case where the Boddington principle applies, a collateral challenge arises incidentally to proceedings in a court of general (albeit often “inferior”) criminal or civil jurisdiction.  The width of the jurisdiction of magistrates in England was emphasised in Boddington by both the Lord Chancellor and Lord Steyn.  The latter described them at 165-166 as “the bedrock of the English criminal justice system: they decide more than 95 per cent of all criminal cases tried in England and Wales”.  By contrast the Maori Land Court has a range of quite precisely defined heads of civil jurisdiction in matters pertaining to Maori land, a range not extending to issues of the invalidity of administrative action. Although dressed up as a claim for an injunction against a threatened injury to Maori freehold land, the pith and substance of the present proceeding is a contention that express or implied requirements of consultation in the RMA have not been or will not be complied with.

13. 	The Board does not consider that this can properly be described as a collateral challenge within the ambit of the reasoning in Boddington.  It is essentially a direct challenge.  The whole purpose of the injunction claim is to establish a breach of public law duties arising in the administration of the RMA.  In Boddington at 172 Lord Steyn distinguished “situations in which an individual’s sole aim was to challenge a public law act or decision”.  The facts of this case relating to Maori land and the structure of the New Zealand judicial system are remote from anything under consideration in the Boddington line of cases.  In the opinion of their Lordships, both the substance of the proceeding in question and the background judicial system have to be taken into account in deciding whether those authorities apply; and this case is outside their purview and spirit.

The course of the litigation
14. 	The history of the case in New Zealand calls for some further explanation.  When the injunction applications came on so suddenly before Judge Isaac, he correctly addressed himself to the questions appropriately considered at the interim stage, the first two of which are commonly described as whether there is a serious question to be tried and the balance of convenience. Apart from the fact that the owners were strenuously opposed to the proposal and were concerned that there might be actual or intended trespass or damage to the land, he gave no express indication of why he thought there was a serious question.  The affidavits of the applicants alleged lack of consultation.  Mr Clews countered in his affidavit by deposing to a wide-ranging consultative and publicity process, including the obtaining of a report from consultants suggested by Maori interests but paid for by the Council.  He spoke also of unsuccessful attempts to arrange meetings with some of the applicant owners.  The details of the affidavits were not canvassed in argument before the Board, but it is plain that there had been at least considerable consultation with Maori and that the evidence of insufficient consultation with the applicants was less than overwhelming. Moreover there was the argument for Hastings that the Maori Land Court lacked jurisdiction.  At a minimum it was an argument requiring careful consideration.  Nevertheless the judge’s decision to grant interim injunctions is understandable. The Council’s meeting was scheduled for that afternoon, but the route of the northern arterial road had been under debate for years and the matter may not have appeared particularly urgent. Also, as he stressed in his decision, the applicants were not that day represented by counsel, although it was said that counsel had been appointed and would be appearing at a substantive hearing. Evidently the judge saw his decision as no more than a holding operation.

15. 	When the judicial review proceeding initiated by Hastings was before Goddard J the following agreed questions of law were propounded on behalf of the parties:
“8.	The questions of law to be determined in the proceeding can be characterised at several different levels of generality but the fundamental common element is ultra vires:
(a)	Does the Maori Land Court have jurisdiction to issue injunctions under section 19(1)(a) of Te Ture Whenua Maori Act 1993 that restrain a territorial authority from the purported exercise of its powers under the processes and procedures specified in the Resource Management Act 1991 to make designations where those designations if made under section 168A would apply to Maori freehold land?
(b)	Can preparation for a decision whether valid or invalid by a territorial authority to designate Maori freehold land under section 168A of the Resource Management Act 1991 amount to an ‘actual or threatened trespass or other injury to Maori freehold land’?
(c)	Can a decision, whether valid or invalid, by a territorial authority to designate Maori freehold land under s168A of the Resource Management Act 1991 amount to an ‘actual or threatened trespass or injury to Maori freehold land’?
(d)	Does the First Respondent have the power to determine the validity of a decision by a territorial authority to designate Maori freehold land under section 168A of the Resource Management Act 1991 on the ground that the action amounts to an ‘actual or threatened trespass or injury to Maori freehold land’?

Note:	It is not intended that the adequacy of any consultation be determined in these proceedings.  It is agreed by counsel that there will be no need for the Second Respondents to plead to the statement of claim.”

16. 	In those questions the phrase “whether valid or invalid” in (b) and (c) was unhappily chosen.  It was made crystal-clear in the argument before the Board that the appellants do not contend that implementation of a valid decision by a local authority can be restrained by an injunction from the Maori Land Court.  It is common ground, furthermore, that Maori freehold land can be validly designated under the RMA and can be acquired compulsorily under the Public Works Act 1981.  This accords with a proposition of Lord Denning, giving a judgment of a Judicial Committee of the Privy Council comprising Earl Jowitt, Lord Cohen and himself, in Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876, 880, which has been quoted previously in the Court of Appeal in Treaty of Waitangi litigation:
“In inquiring … what rights are recognised there is one guiding principle.  It is this: The courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected.  Whilst, therefore, the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it …”

Lord Denning was speaking in a case concerning a ceded territory (Nigeria), and whether New Zealand is in that category has long been the subject of academic controversy.  There can be no doubt, however, that in the absence of some constitutional provision to the contrary the same must apply prima facie to a state with a legislature of plenary powers such as New Zealand.
17. 	As their Lordships understand it, the present appellants also accepted in the courts in New Zealand that the Maori Land Court could not question the lawful exercise of powers under the RMA. Goddard J said:
“It is axiomatic that powers conferred under the RMA are lawful because they are legislatively provided.  Therefore, a territorial authority cannot commit a ‘trespass’ or ‘other injury’ to land by the simple lawful exercise of its powers to notify requirements and propose designations.  A prima facie unlawful exercise of powers, such as would merit injunctive relief and pose a serious question for trial, is therefore only likely if the Council’s actions appear to be ultra vires.  Conceivably, the appearance of ultra vires might arise if the process upon which the decision to notify or designate was based seemed demonstrably flawed.  In the present case, however, the fact or adequacy of any consultation to date is specifically exempt as an issue and there is no evidence that the procedure is flawed in any other way.”

18. 	With regard to Goddard J’s reference to the possibility of a decision to notify or designate seeming demonstrably flawed, their Lordships likewise reserve the possibility of a purported decision under the RMA so egregiously ultra vires as to be plainly not justified by that Act and conceivably within the scope of the Maori Land Court’s injunctive jurisdiction.  But that is no more than a hypothetical possibility.  It is certainly not the present case.

19. 	In the Court of Appeal the confusion apt to be created by the phrase “whether valid or invalid” was also noticed.  The court accordingly, with the agreement of counsel for the appellants, rephrased the issue as being “Whether the Maori Land Court has jurisdiction to entertain a collateral challenge to the validity of the decision by the council to make and notify a requirement under sections 168 and 168A of the RMA on the basis that such decision, if invalid, amounts to an ‘actual or threatened trespass or other injury to Maori freehold land’”.  This is an alternative way of expressing the original question (d).  The Board’s opinion upon it has already been stated.

The Resource Management Act
20. 	While what has been said may be strictly enough to decide the case, it is desirable for two reasons to turn more particularly to the RMA.  The first reason is that, with the possible exception of an extreme case such as the hypothetical one previously postulated, the Act of 1991 provides a comprehensive code for planning issues, rendering it unlikely that Parliament intended the Maori Land Court to have overriding powers.  The second is that this code contains various requirements to take Maori interests into account.  The Board considers that, faithfully applied as is to be expected, the RMA code should provide redress and protection for the appellants if their case proves to have merit.  It would be a misunderstanding of the present decision to see it as a defeat for the Maori cause.

21. 	Section 5(1) of the RMA declares that the purpose of the Act is to promote the sustainable management of natural and physical resources.  But this does not mean that the Act is concerned only with economic considerations.  Far from that, it contains many provisions about the protection of the environment, social and cultural wellbeing, heritage sites, and similar matters.  The Act has  a single broad purpose.  Nonetheless, in achieving it, all the authorities concerned are bound by certain requirements and these include particular sensitivity to Maori issues.  By section 6, in achieving the purpose of the Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for various matters of national importance, including “(e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu [sacred places], and other taonga [treasures]”.  By section 7 particular regard is to be had to a list of environmental factors, beginning with “(a) Kaitiakitanga [a defined term which may be summarised as guardianship of resources by the Maori people of the area]”.  By section 8 the principles of the Treaty of Waitangi are to be taken into account.  These are strong directions, to be borne in mind at every stage of the planning process.  The Treaty of Waitangi guaranteed Maori the full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they desired to retain.  While, as already mentioned, this cannot exclude compulsory acquisition (with proper compensation) for necessary public purposes, it and the other statutory provisions quoted do mean that special regard to Maori interests and values is required in such policy decisions as determining the routes of roads. Thus, for instance, their Lordships think that if an alternative route not significantly affecting Maori land which the owners desire to retain were reasonably acceptable, even if not ideal, it would accord with the spirit of the legislation to prefer that route.  So, too, if there were no pressing need for a new route to link with the motorway because other access was reasonably available.

22. 	Some features of the RMA code will now be mentioned.  By section 168A and sections thereby incorporated, when a territorial authority proposes to issue notice of a requirement for a designation, public notification is to be given, with service also on affected owners and occupiers of land and iwi [tribal] authorities.  That stage has not yet been reached in the present case; the injunctions applied for were aimed at preventing its being reached.  By section 168(e) notice of a requirement for a designation must include a statement of the consultation, if any, that the requiring authority has had with persons likely to be affected.  There is provision for written submissions and for discretionary pre-hearing meetings.  Persons who have made submissions have a right to an oral hearing.  By section 171 particular regard is to be had to various matters, including (b) whether adequate consideration has been given to alternative routes and (c) whether it would be unreasonable to expect the authority to use an alternative route.  Hastings has in effect the dual role of requiring authority and territorial authority, so in a sense it could be in the position of adjudicating on its own proposal; but, by section 6(e), which their Lordships have mentioned earlier, it is under a general duty to recognise and provide for the relationship of Maori with their ancestral lands. So, too, Hastings must have particular regard to kaitiakitanga (section 7) and it must take into account the principles of the Treaty (section 8).  Note that section 171 is expressly made subject to Part II, which includes sections 6, 7 and 8.  This means that the directions in the latter sections have to be considered as well as those in section 171 and indeed override them in the event of conflict.

23. 	The function of the territorial authority under this procedure, after having regard to the prescribed matters and all submissions, is to confirm or cancel the requirement or modify it in such manner or impose such conditions as it thinks fit. From the authority’s decision there is a right of appeal to the Environment Court, available to any person who made a submission on the requirement (section 174).  The Environment Court is specifically required by section 174(4) to have regard to the matters set out in section 171; but their Lordships have no doubt that the provisions thereby incorporated and the general scheme of the Act, including sections 6, 7 and 8, apply in the Environment Court and that a full right of appeal on the merits is contemplated.  Under section 174(4) the Court has wide powers of decision.  It may confirm or cancel a requirement or modify one in such manner or impose such conditions as the Court thinks fit.

24. 	Section 299 gives any party to any proceedings before the Environment Court a right of appeal to the High Court on a point of law.  Section 305 enables a further appeal on law, by leave, to the Court of Appeal.

25. 	Provisions of significance in this case are to be found in section 296.  In summary that section stipulates that, where there is a right of appeal to the Environment Court from a decision, no application for judicial review may be made and no proceedings for a prerogative writ or a declaration or injunction may be heard by the High Court unless that right of appeal has been exercised and the Environment Court has made a decision.  Thus the administrative law jurisdiction of the High Court (or the Court of Appeal on appeal), though naturally not totally excluded, is intended by the legislature to be very much a residual one.  The RMA code is envisaged as ordinarily comprehensive.  In the face of this legislative pattern the Board considers it unlikely in the extreme that Parliament meant to leave room for Maori Land Court intervention in the ordinary course of the planning process.

26. 	Before the Board counsel for Hastings also drew attention to sections 310 and 314 of the RMA.  Section 310 gives an Environment Judge sitting alone or the Environment Court original jurisdiction in proceedings brought for the purpose to grant declarations, including in (c) whether or not a proposed act contravenes or is likely to contravene the RMA.  Section 314 and the following sections similarly authorise enforcement orders. Under section 314(a) such an order may prohibit a person commencing anything that in the opinion of the Court  (or the single Judge) contravenes or is likely to contravene the Act. While it may be that the more normal route – submissions to the local authority and, if necessary, a hearing at that level and a subsequent appeal to the Environment Court – would offer the best way of having this dispute determined on the merits, their Lordships accept the proposition of counsel for Hastings that, if there are any questions about whether Hastings is acting in accordance with the RMA, a declaration can be sought under section 310 or an enforcement order applied for under section 314.
27. 	Another factor to which the Board, like both the High Court and the Court of Appeal in New Zealand, attaches importance is the composition of the Environment Court.  The relevant provisions are in Part XI (sections 247 to 298) of the RMA.  The Court consists of Environment Judges (or alternate Judges) and Environment Commissioners (or Deputies).  There are to be not more than eight Judges and any number of Commissioners.  The quorum generally for a sitting of the Court is one Judge and one Commissioner, although (as already noticed) in declaration and enforcement proceedings a single Judge may sit, as may also happen with certain incidental matters.  Of course a greater number than a bare quorum can sit, and commonly does; usually the Court comprises one Judge and two Commissioners; occasionally a larger Court is convened.  A Judge must either be already a District Court Judge or be appointed as such at the time of appointment to the Environment Court.  Appointments as Environment Judges and Commissioners are made by the Governor-General on the recommendation of the Minister of Justice, after consultation with the Minister for the Environment and the Minister of Maori Affairs.  Section 253 states that the appointment of Commissioners is to ensure that the Court possesses a mix of knowledge and experience, including knowledge and experience in matters relating to the Treaty of Waitangi and kaupapa Maori.  An alternate Environment Judge may act as an Environment Judge when the Principal Environment Judge (appointed under section 251), in consultation with the Chief District Court Judge or Chief Maori Land Court Judge, considers it necessary for the alternate Environment Judge to do so (section 252).  A Deputy Environment Commissioner may act in place of an Environment Commissioner when the Principal Environment Judge considers it necessary (section 255). Section 269, dealing with the powers and procedure of the Court, includes an express direction that the Court shall recognise tikanga Maori where appropriate.  These various provisions are further evidence of Parliament’s mindfulness of the Maori dimension and Maori interests in the administration of the Act.

28. 	Counsel for the appellants made the point that at present there are no Maori Land Court Judges on the Environment Court and only one Maori Commissioner out of five.  In a case such as the present that disadvantage may be capable of remedy by the appointment of a qualified Maori as an alternate Environment Judge or a Deputy Environment Commissioner.  Indeed more than one such appointment could be made. Alternate Environment Judges hold office as long as they are District Court or Maori Land Court Judges; Deputy Environment Commissioners may be appointed for any period not exceeding five years.  It might be useful to have available for cases raising Maori issues a reserve pool of alternate Judges and Deputy Commissioners.  At all events their Lordships express the hope that a substantial Maori membership will prove practicable if the case does reach the Environment Court.

29. 	For these reasons their Lordships are satisfied that Maori land rights are adequately protected by the RMA and will humbly advise Her Majesty that the appeal ought to be dismissed.  They adopt the suggestion of counsel that any question of costs may be raised by subsequent memoranda to the Board.