Attorney-General v Haronga

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.