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Attorney-General v Haronga

Attorney-General v Haronga

Case [2016] NZCA 626 19 December 2016

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA353/2015
[2016] NZCA 626

BETWEEN	THE ATTORNEY-GENERAL Appellant
AND	ALAN PAREKURA TOROHINA HARONGA First Respondent
AND	TE AITANGA A MĀHAKI TRUST Second Respondent
AND	WAITANGI TRIBUNAL Third Respondent
AND	DAVID DONALD HARRY BROWN Fourth Respondent

CA545/2015
BETWEEN	VENERABLE TIMOTI FLAVELL Appellant
AND	WAITANGI TRIBUNAL First Respondent
AND	THE ATTORNEY-GENERAL Second Respondent

Hearing:	20 July 2016
Court:	Ellen France P, Harrison and Cooper JJ
Counsel:	CRW Linkhorn, C D Tyson and A J Allan for Appellant (CA353/2015) and Second Respondent (CA545/2015) P J Radich QC, K S Feint and M S Smith for First and Second Respondents (CA353/2015) No appearance for Third Respondent (CA353/2015) and First Respondent (CA545/2015) R N Zwaan and B R Lyall for Fourth Respondent (CA353/2015) RDC Hindle, TKTAR Williams and IFF Peters for Appellant (CA545/2015)
Judgment:	19 December 2016 at 3 pm

JUDGMENT OF THE COURT

AThe appeal in CA353/2015 is dismissed. The orders made in the High Court remain.
B The appellant in CA353/2015 must pay costs to the first and second respondents for a standard appeal on a band A basis with usual disbursements — we certify for second counsel; and 30 per cent of the fourth respondent’s costs for preparation of a standard appeal on a band A basis together with usual disbursements. There is no order for costs in favour of the third respondent.
C The appeal and cross-appeal in CA545/2015 are dismissed. The orders made in the High Court remain.
DThere is no order for costs in CA545/2015.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction [1]
Statutory framework [7]

Key provisions  [9]
Legislative history  [15]
Scope of the Tribunal's discretion  [21]

The Mangatū claims (CA353/2015) [25]

Background  [25]
The Mangatū Remedies Report  [32]
(a)Mangatū  [33]

(b)       Ngā Ariki Kaipūtahi  [35]
(c)       Te Whānau a Kai  [38]
(d)       Māhaki  [39]
(e)       Conclusion  [40]
Decision  [42]
(a)       Introduction  [42]
(b)       First ground of appeal  [46]
(c)       Second and third ground of appeal  [52]
(i)      Crown’s argument  [52]
(ii)      Our assessment[57]
(iii)     Mangatū  [61]
(iv)     Ngā Ariki Kaipūtahi and Te Whānau a Kai  [67]
(v)     Māhaki  [68]
(d)     Conclusion  [70]

The Ngāti Kahu claims (CA545/2015) [76]

Background  [76]
The Ngāti Kahu Remedies Report  [80]
High Court decision  [86]
Appeal  [89]
Cross-appeal  [91]

Result [97]

Introduction

These two appeals raise a common issue about the powers of the Waitangi Tribunal under the Treaty of Waitangi Act 1975 (the Act). It follows from the Tribunal’s findings in two separate remedies reports that, first, certain claims to Māori ownership of Crown land were well founded and, second, the action to be taken to compensate or remove the prejudice caused by the Crown’s acts leading to loss of the land should include its return. The question arising is whether the Tribunal is then bound to recommend to the Crown that the land or part of it be returned to Māori ownership.[1] In the event of the Crown’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Haronga

Details

AGLC: Attorney-General v Haronga [2016] NZCA 626
Case: [2016] NZCA 626
Decision Date: 19 December 2016

CaseChat Overview and Summary

This case concerns two appeals against the decisions of the Waitangi Tribunal. In the first appeal (CA353/2015), the Tribunal found that claims by Alan Haronga on behalf of four Māori entities to 8,626 acres of Crown land within the Mangatū State Forest north of Gisborne were well founded: the land was removed from Māori ownership by an act which was inconsistent with the Treaty of Waitangi, and at least part of the land should be returned to Māori to remove the prejudice caused. The Tribunal nevertheless decided on a number of grounds to dismiss three of the applications for binding recommendations and adjourned a fourth, while issuing non-binding recommendations that the Crown and the claimants should seek a negotiated settlement including the return of part or all of the land to the claimants. On Mr Haronga's application to the High Court for judicial review, Clifford J held that the Tribunal had erred in law and misconstrued the statutory scheme of the binding recommendation regime. He quashed the Tribunal's report and directed it to reconsider the applications. In the second appeal (CA545/2015), the Tribunal found that claims by the Venerable Timoti Flavell on behalf of Ngāti Kahu to land east of Kaitaia were well founded and the land was removed by an act which was inconsistent with the Treaty but declined to make binding recommendations. Instead, as was the case for Mr Haronga's claim, the Tribunal issued a series of non-binding recommendations for settlement. On Mr Flavell's application for judicial review, Dobson J found that the Tribunal erred, first in treating its power to make binding recommendations as a remedy of last resort as distinct from another available remedy; and, second in failing to consider whether binding recommendations were appropriate for parts only of the land for which a remedy was sought. He set aside parts of the Tribunal's report and ordered it to reconsider. Despite his success before Dobson J, Mr Flavell appeals. The Crown cross-appeals. The Court held that the appeals and cross-appeal each must fail. The appeal in CA353/2015 is dismissed. The orders made in the High Court remain. The appellant in CA353/2015 must pay costs to the first and second respondents on a standard appeal on a band A basis with usual disbursements — we certify for second counsel; and 30 per cent of the fourth respondent's costs for preparation on a standard appeal on a band A basis together with usual disbursements. There is no order for costs in favour of the third respondent. The appeal and cross-appeal in CA545/2015 are dismissed. The orders made in the High Court remain. As each party has been unsuccessful in CA545/2015, there will be no order for costs.

Orders