Attorney-General v Waitangi Tribunal - [2023] NZHC 132

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-000720

[2023] NZHC 132

BETWEEN
ATTORNEY GENERAL

Applicant

AND

WAITANGI TRIBUNAL

First Respondent

AND

ESTATE OF ERIC JOHN TUPAI RURU

Second Respondent

AND

TANYA ROGERS AND DAVID BROWN

Third Respondent

AND

OWEN LLOYD

Fourth Respondent

AND

DAVID THOMAS HAWEA

Fifth Respondent

AND

ALAN PAREKURA TOROHINA HARONGA

Sixth Respondent

AND

ANTHONY TAPP

Seventh Respondent

Hearing: 20 – 22 June 2022 and 3 February 2023

Appearances:

C D Tyson, C R W Linkhorn and H P Graham for the Applicant

B R Arapere and W Gucake (both hearings) for the First Respondent P J Radich KC, K S Feint KC and T Haradasa (both hearings) and R

Drummond (on 3 February 2023) for the Second and Sixth Respondents B R Lyall for the Third Respondent

T H Bennion for the Fourth Respondent

D C F Naden and C B Hirschfield (for June 2022 hearings) and no appearance by leave on 3 February 2023 for the Fifth Respondent

J P Kahukiwa by VMR (for June 2022 hearing) and no appearance by leave on 3 February 2023 for the Seventh Respondent

Judgment:

17 February 2023

ATTORNEY GENERAL v WAITANGI TRIBUNAL [2023] NZHC 132 [17 February 2023]

JUDGMENT OF GRICE J (JUDICIAL REVIEW)

Contents

Introduction[1]

Background[10]
Grounds for judicial review[18]

Principles of judicial review[25]

The statutory framework[28]

The Remedies Report 2021[40]

Structure of the report[47]

The principles of the Treaty[53]
Do the well-founded claims “relate to” the CFL land?[62]

Should the Mangatū CFL land be returned to Māori?[74]
Who is to receive the Tribunal’s s 8HB recommendation?[79]
Compensation[96]
Terms and conditions[99]

The Supreme Court decision in Wairarapa Moana[101]

Tikanga and the “relevant prejudice issue”[107]

Earlier Supreme Court guidance on the Crown forest land provisions[110] First ground of review — error of law — Tribunal misconstrued and exceeded its jurisdiction and powers under s 8HB of the TOWA[117]
Analysis[134]
Second ground of review — declining to extend the four-year CPI-only period for the

compensation amount[178]
The Supreme Court’s guidance on the Crown’s interest liability issue[189]

What the Tribunal did in this case[202]

Analysis[208]

Third ground of review — error of law[233]

Analysis[259]

Fourth ground of review — error of law — Tribunal erred in its assessment of terms and
conditions under s 8HB of the TOWA for return of licensed land[270]
Terms and conditions recommended by the Tribunal[273]
Recommendation that lands be returned to Māori Collective Trust[275]
Analysis[283]
Crown warranties and indemnities[293]
Analysis[297]
Clause restricting ability of parties to settle in the 90-day period[303]
Analysis[306]
Transfer of title within 12 months[308]

Notice to Crown Forestry Rental Trust (CFRT) and Forest Emission Unit Trust (FEUT)[314]

The counterclaim by Te Whānau a Kai[320]

Historical claims findings in the Principal Report[332]
Failure to take into account the evidence of Te Whānau a Kai[341]
Effect of the Wairarapa Moana decision[343]
Analysis[345]
Failure to take into account mana whenua[360]
Conclusion[363]
Costs[369]

Introduction

[1] In its Mangatū Remedies Report 2021 (the Remedies Report 2021

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 Waitangi Tribunal

Details

AGLC: Attorney-General v Waitangi Tribunal [2023] NZHC 132
Case: [2023] NZHC 132
Decision Date: 17 February 2023

CaseChat Overview and Summary

The High Court of New Zealand has dismissed an application for judicial review of recommendations made by the Waitangi Tribunal in its Mangatū Remedies Report 2021. The Tribunal had recommended the transfer or "resumption" to three Māori claimant groups of 7,676.8 hectares of the Mangatū Crown Forest licensed lands, along with associated compensation. The Crown brought the application, claiming that the Tribunal had acted outside its adjudicatory jurisdiction and materially erred in law. The Crown argued that the Tribunal had misconstrued and exceeded its jurisdiction and powers under s 8HB of the Treaty of Waitangi Act 1975 (the TOWA). The Court found that the Tribunal had made no such errors of law, correctly considered the relevant tikanga, and its recommendations were consistent with the approach endorsed by the Supreme Court in Wairarapa Moana. The Court also found that the Tribunal acted unlawfully in declining to extend the four-year "real value" period for compensation, as it did not undertake the contextual analysis that it was required to complete and did not explain how the periods of delay were due to the failure of the Crown to exercise its best endeavours jointly with Māori to enable the Tribunal to deliver in relation to all its recommendations "in the shortest reasonable period" in the circumstances. The Court dismissed the other grounds of review. The counterclaim by Te Whānau a Kai was also dismissed.

Orders