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Attorney-General v Mair

Attorney-General v Mair

Case [2009] NZCA 625 22 December 2009

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Constitutional Validity

Treaty Principles

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Constitutional Law

Treaty of Waitangi Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA644/2009
[2009] NZCA 625
BETWEENATTORNEY-GENERAL

Appellant

ANDTE KENEHI MAIR

First Respondent
ANDNGĀHINA MATTHEWS

Second Respondent
ANDTHE WAITANGI TRIBUNAL

Third Respondent

Hearing:11 November 2009

Court:Chambers, O'Regan and Baragwanath JJ
Counsel:C R Gwyn and H M Carrad for Appellant

R E Harrison QC, S T Webster and C Hirschfeld for First and Second Respondents
D M Consedine for Third Respondent (Given leave to withdraw)
W L Aldred for Te Rūnanga o Ngāti Apa Soc Inc as Intervener

Judgment:22 December 2009 at 4.15 pm

JUDGMENT OF THE COURT

A            The appeal is allowed.
B            The orders made in the High Court are quashed.
C            Costs are reserved.
____________________________________________________________________
REASONS
CHAMBERS AND O’REGAN JJ
[1]

BARAGWANATH J
[84]
CHAMBERS AND O’REGAN JJ
Table of Contents
Para No

Introduction  [1]
Issues  [3]
Context  [4]
Alternative paths to Treaty of Waitangi settlements  [5]
Factual background to the urgency application  [8]
The Tribunal’s consideration of the urgency application  [17]
Events after the Tribunal decision but before the
High Court hearing  [32]
The High Court decision  [36]
Events following the High Court decision  [45]
Was MacKenzie J right to find the Waitangi Tribunal acted
unlawfully in refusing urgency to the Wai 655 claim?  [50]
Was MacKenzie J right to find the Waitangi Tribunal acted
unlawfully in refusing urgency to the Wai 1840 claim?  [71]
Should relief have been granted?  [80]
Result  [82]
Costs  [83]
Introduction
[1]        This is an appeal against a decision of MacKenzie J dealing with an application by the first and second respondents, Mr Te Kenehi Mair and Mr Ngahina Matthews (Mr Matthews Snr), for judicial review of a decision of the Waitangi Tribunal: Mair v Waitangi Tribunal HC WN CIV-2009-485-1499 2 October 2009. The Tribunal’s decision, delivered on 15 May 2009, refused urgency for the hearing of two claims, Wai 655 and Wai 1840. MacKenzie J found that the Tribunal had failed to take into account all aspects of the prejudice which would be suffered by Mr Matthews Snr as the Wai 655 claimant. The Judge decided that the question of urgency for both claims should be determined together. He made a declaration that the Tribunal had erred in law in its decision refusing the applications for urgency, quashed the Tribunal’s decision and directed the Tribunal to reconsider the applications.
[2]        The Attorney-General appeals against that decision. The Tribunal abides the decision of the Court. Te Rūnanga o Ngāti Apa Society Inc (Te Rūnanga), which had not taken part in the High Court hearing, was given leave to make written submissions and brief oral submissions as an intervener. The first and second respondents sought and were given leave to file out of time a notice supporting the High Court judgment on a ground other than the one upon which the judgment was based.
Issues
[3]        The issues for determination are:
(a)Was MacKenzie J right to find the Tribunal acted unlawfully in refusing urgency to the Wai 655 claim?
(b)Was MacKenzie J right to find the Tribunal…

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 Mair

Details

AGLC: Attorney-General v Mair [2009] NZCA 625
Case: [2009] NZCA 625
Decision Date: 22 December 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the Attorney-General appealed against a decision of MacKenzie J, which found the Waitangi Tribunal had acted unlawfully in refusing urgency to two claims, Wai 655 and Wai 1840. The claimants, Te Kenehi Mair and Ngahina Matthews, sought judicial review of the Tribunal's decision. The Tribunal had refused urgency for both claims, and MacKenzie J quashed the Tribunal's decision and directed it to reconsider. The central issues were whether the Tribunal acted unlawfully in refusing urgency to Wai 655 and Wai 1840 claims, and if MacKenzie J was correct in granting relief.

The Court of Appeal found that MacKenzie J was incorrect in his assessment of the Tribunal's decision. With respect to the Wai 655 claim, the Court found that Judge Milroy had not confined her consideration to financial detriment, but rather had considered the intangible prejudice to the Wai 655 claimants. The Court also dismissed the argument that the Tribunal's decision was in breach of the Treaty principles, stating that the Tribunal was not bound to apply the Treaty principles when exercising its jurisdiction. Regarding the Wai 1840 claim, the Court found that the Tribunal had carefully considered the criteria set out in the practice note and concluded that the Wai 1840 claimants would not suffer "significant and irreversible prejudice" if an urgent hearing of their claim did not take place. The Court of Appeal allowed the appeal and set aside the orders made in the High Court.

Orders