Baker v Waitangi Tribunal
[2014] NZHC 1219
•30 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-6619 [2014] NZHC 1219
BETWEEN ELIZABETH BAKER
Plaintiff
AND
WAITANGI TRIBUNAL First Defendant
AND
THE ATTORNEY-GENERAL Second Defendant
Hearing: 3 April 2014 Appearances:
G Sharrock for Plaintiff
No appearance for Defendants
P Andrew, Amicus CuriaeJudgment:
30 May 2014
INTERIM JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 30 May 2014 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
BAKER v WAITANGI TRIBUNAL [2014] NZHC 1219 [30 May 2014]
Table of Contents Paragraph
Number
Introduction and result [1] Reasons [8] Background [8] The conduct of the Inquiry regarding the Stage 1 report [11]
The position taken by the Tribunal and the Attorney-General in this proceeding
[30]
The submissions of counsel [35] Discussion [41] Is the delay unreasonable in all the circumstances? [44] Conclusions [53] Directions [60]
Introduction and result
[1] The Te Paparahi o Te Raki Inquiry (“the Inquiry” or “Wai 1040”), currently being conducted by the Waitangi Tribunal, concerns claims by Ngāpuhi for the redress of grievances arising from alleged breaches of the Crown’s obligations under the Treaty of Waitangi (“Te Tiriti/The Treaty”). In scale, scope and complexity it rivals the Tribunal’s landmark Ngai Tahu and Tainui inquiries which resulted in fundamental changes to the socio-economic futures of many Māori. The outcomes of the Inquiry will be of profound significance to the claimants, the Crown and the nation.
[2] The Inquiry has been on foot since at least 2005. In 2009, the Tribunal resolved to conduct the Inquiry in two stages, the first of which was to address issues which the Tribunal considered to be of fundamental importance to the claims. The hearing of evidence and submissions on behalf of the claimants and the Crown about the Stage 1 issues was completed in April 2011. The Tribunal has since embarked on Stage 2 of the Inquiry, addressing specific grievances, but it has not released its Stage 1 report.
[3] The plaintiff, Ms Baker, is a kuia and resident of Ti Tii Marae, Waitangi. She is one of some 600 claimants whose grievances are being addressed in Wai 1040. She complains, as do a number of the other claimants, that she has been disadvantaged by unreasonable delay in the release of the Tribunal’s Stage 1 report.
[4] In this judicial review proceeding, Ms Baker seeks a declaration that the Stage 1 report ought to have been issued already, and an order directing the Tribunal to produce the report within 60 days.
[5] For the reasons given below, I have concluded that I am not sufficiently informed to decide whether the Court should grant the relief sought by the plaintiff at this stage. I accept the plaintiff’s submission, however, that the Tribunal has failed in its duty to inform the plaintiff and other claimants adequately about progress in the preparation of the Stage 1 report, and that they have been adversely affected as a result.
[6] In the directions issued at [60] below, I have directed the Tribunal or the Attorney-General on its behalf to file and serve on the plaintiff and Mr Andrew, amicus curiae, by 30 June 2014, an affidavit which:
(a) describes and explains what stage the Tribunal has reached in the preparation of its Stage 1 report; and
(b)contains a realistic estimate by the Tribunal of the likely release date of the Stage 1 report in Wai 1040, based on the assumptions that the Tribunal’s resources remain as they are at present and that no new matters having greater priority because of urgency or importance will require a further redirection of Tribunal resources away from Wai 1040.
[7] I have also directed the Registrar to arrange a telephone conference with all counsel, including counsel representing the Tribunal and/or the Attorney-General, at
9:00 am on the earliest available date after 30 June 2014.
Reasons
Background
[8] In a Memorandum of Directions issued on 3 April 2009,1 the Presiding Officer of the panel of Tribunal members appointed to hear the Te Paparahi o Te Raki claims, Judge Craig Coxhead, explained that at that point there had been over four years of work undertaken by the Tribunal, relevant agencies and claimants in preparation for the Wai 1040 hearings. Judge Coxhead acknowledged there was still much work to do inquiring into more than 600 claims by iwi, hapū, whanau and individuals. The Judge described the Inquiry as highly complex and said that it is probably the most challenging ever undertaken by the Tribunal, dealing with the largest single iwi, and what he described as the birthplace of Aotearoa New Zealand
as a country.
1 Memorandum/Directions (Wai 1040, #2.5.20, 3 April 2009).
[9] The Tribunal considered that the claims all had a common take (source or origin) in two documents:
(a) He Whakaputanga, the Declaration of Independence of 1835 (“He Whakaputanga/The Declaration”), a statement drafted by the official “British Resident” James Busby, assisted by Rev Henry Williams and Rev William Colenso, and signed initially on 28 October 1835 by 34
Northern Māori Chiefs.
(b) Te Tiriti/the Treaty.
[10] The preliminary work of the Tribunal and others led to a decision by the Tribunal to conduct the Inquiry in two stages, the first of which was to address seven issues of fundamental importance to the claims dealing with He Whakaputanga/The Declaration, Te Tiriti/the Treaty, and the relationship between the two documents. The seven issues were described by the Tribunal2 as follows:
He Whakaputanga/The Declaration
1. How did Māori understand He Whakaputanga/The Declaration?
And, therefore, what was the nature of the relationship and the mutual commitments they were assenting to in signing He Whakaputanga/The Declaration?
2.How did the Crown understand of He Whakaputanga/The Declaration? And, therefore, what was the nature of the relationship and the mutual commitments it was assenting to in signing He Whakaputanga/The Declaration?
3. What then was the effect of He Whakaputanga/The Declaration at
1835?
Relationship between He Whakaputanga/The Declaration and Te
Tiriti/The Treaty
4. What, if any, was the relationship between He Whakaputanga/The
Declaration and Te Tiriti/The Treaty?
Te Tiriti/The Treaty
5.How did Māori understand Te Tiriti/The Treaty? And, therefore, what was the nature of the relationship and the mutual commitments they were assenting to in signing Te Tiriti/The Treaty?
2 Memorandum/Directions (Wai 1040, #2.5.23, 29 May 2009) at [25] and Appendix A.
6.How did the Crown understand Te Tiriti/The Treaty? And, therefore, what was the nature of the relationship and the mutual commitments it was assenting to in signing Te Tiriti/The Treaty?
7. What then was the effect of Te Tiriti/The Treaty at 1840?
The conduct of the Inquiry regarding the Stage 1 report
[11] It would be obvious to any informed bystander that the answers to the questions posed in the statement of issues are fundamentally important to any consideration of the Ngāpuhi claims alleging breaches of the Crown’s obligations to the Māori signatories and their whakahekenga/descendants, and the Tribunal’s recommendations to the Crown under s 6(3) of the Treaty of Waitangi Act 1975 (“the Act”). For that reason, it might appear to have been a sensible course for the Tribunal to release a report on the seven issues before the hearing of evidence and submissions on particular grievances.
[12] In a memorandum released on 17 September 2009,3 the Tribunal recorded that a number of claimants and their counsel had asked whether the Tribunal would be producing a report following the initial (Stage 1) hearings.4 The Tribunal said it had not made a commitment one way or the other and said that whether the Tribunal could issue a report at that stage would depend largely on the submissions and evidence put before it. In taking that view, the Tribunal noted5 that its jurisdiction to make recommendations to the Crown is limited to recommending how the Crown might remedy the prejudice to claimants that has been found to have been caused by Crown acts, omissions, policies and practices, or statutory instruments inconsistent with the principles of Te Tiriti/The Treaty. Since the issues in the Stage 1 hearings concern the meaning of He Whakaputanga/The Declaration and Te Tiriti/The Treaty, the Tribunal would not be in a position to make findings that would support recommendations to the Crown. Judge Coxhead said that this could influence the decision about whether Tribunal resources should be dedicated to writing a report at
that stage of the Inquiry.
[13] In its Memorandum of Directions dated 12 March 2010,6 the Tribunal confirmed it would conduct Stage 1 of the Inquiry by hearing evidence and submissions related to the seven identified issues over a period of four separate weeks beginning with the week of 10-14 May 2010 and ending with the week of 11-
15 October 2010. The Tribunal also confirmed that it would issue a report once the initial hearings were concluded. It said:7
The writing of a report requires significant Tribunal resources. This needs to be factored in with all other Tribunal activity. The Tribunal cannot say how long it will take to produce this report, because we are unsure of the resources that will be devoted to its completion.
[14] After hearing submissions and evidence over four weeks, the Tribunal heard closing submissions from the parties in February 2011. On 4 March 2011, the date for the filing of written replies of claimant counsel to Crown closing submissions was extended to 22 April 2011.8 The Tribunal indicated it was moving into “a dual phase” of writing a report on the Stage 1 issues and preparing for the next phase of the Inquiry.9
[15] The Tribunal then received submissions from the claimants and the Crown as to how the Tribunal should conduct the Inquiry process for Stage 2, during which the Tribunal proposed to hear submissions and evidence upon generic aspects of the grievances, including the Northern Wars of 1845-46, land purchases, and public works.
[16] In its Memorandum of Directions dated 25 March 2011,10 the Tribunal noted that a number of claimants had expressed a strong interest in its Stage 1 report being released as soon as possible and said that several would like the report to be released before the Stage 2 hearings began. The Panel confirmed its commitment to completing that report as soon as feasible but noted the size and importance of the task and indicated that it was not at that stage possible to set a date for the release of
the Stage 1 report. The Panel recorded that the “ideal” would be for the release of
6 Memorandum/Directions (Wai 1040, #2.5.34, 12 March 2010).
7 At 4.
8 Memorandum/Directions (Wai 1040, #2.5.77, 4 March 2011) at [14].
9 At 18.
10 Memorandum/Directions (Wai 1040, #2.5.79, 25 March 2011).
the Stage 1 report and the commencement of Stage 2 hearings to coincide and expressed the “expectation” that, while preparation work for Stage 2 hearings could commence, the Tribunal would not commence the first round of Stage 2 hearings until the Tribunal’s Stage 1 report was released.11
[17] An analysis of the summary of submissions appended to that Memorandum indicates that 20 of the claimants clearly identified a wish to proceed to Stage 2 hearings only after the Stage 1 report was released; 35 claimant groups wished the Tribunal to proceed to Stage 2 of the Inquiry as soon as possible. 145 of the claimants referred to did not express a clear view. This division of opinion indicates that the plaintiffs’ preferred position of deferral of the Stage 2 hearing until after the release of the Stage 1 report, while coinciding with the “expectation” of the Tribunal in March 2011, was not a view shared universally by the claimants.
[18] The difference of opinion may be related, in part at least, to differing views held by the claimants as to the desirability of moving into settlement negotiations with the Crown before completion of the Inquiry and the release of the Tribunal’s final report. Some claimants were concerned that being involved in Stage 2 hearings would cause them to miss out on the potential benefits of the settlement negotiations, causing tension in the claimant community. Others considered that the Stage 2 hearings would facilitate and encourage robust settlement discussions subsequently, even if claimants did not wish to wait until the release of the Stage 2 report.
[19] Notwithstanding the division of opinion amongst claimants, however, the Tribunal expressed itself more forcefully in June 2011 in the context of discussing arrangements for the conduct of the Stage 2 inquiry.12 It said that the Tribunal would not be commencing the Stage 2 hearings until the Stage 1 report was completed, noting that a number of claimants had indicated their support for this position. In accordance with a timetable for dealing with interlocutory matters, the Tribunal observed13 that it was anticipated that it would look to commence hearings on the generic issues arising in connection with Stage 2 in mid-2012, “depending on when the Stage 1 report is completed.”
[20] Then, in September 2011, the Tribunal confirmed that position and in response to requests for an update of the timing for the Stage 1 report said that work on the report had commenced and was proceeding according to its timetable.14 The memorandum disclosed that Panel members aimed to have the Stage 1 report completed by mid-2012 as proposed.
[21] The Tribunal advised in a memorandum issued in December 201115 that the Stage 1 report was “progressing to schedule.” By April 2012, however, it had become clear to the Tribunal and the claimants that the Tribunal would not in fact complete the Stage 1 report by the middle of 2012 as earlier anticipated. In a memorandum issued following a judicial conference held on 12 March 2012, the Tribunal discussed the impact of its resourcing issues on the timetable for both the
Stage 1 report and the Stage 2 regional generic hearings.16 The Tribunal said:17
4.Claimants will be well aware of the Government’s initiatives for efficiencies in government spending. The Tribunal is not immune from these initiatives.
5.Claimants will also be aware of the Tribunal’s increased workload, in particular the recent significant increase in the number of urgent hearings and urgent remedies hearings granted. With the granting of an urgent hearing a reallocation of the Tribunal’s finite resources is required. Urgencies and urgent remedies by their very nature assume priority.
6.A reallocation of finite resources has and is taking place with resources being reallocated away from a number of areas, including the Te Paparahi o Te Raki Inquiry, to urgencies.
(footnotes omitted)
The Tribunal said18 that, contrary to its best endeavours, it would not complete the
Stage 1 report by mid-2012.
[22] By June 2012, the Tribunal had abandoned its earlier commitment to issuing the Stage 1 report before beginning the Stage 2 hearings. In setting a new timetable
for the commencement of Stage 2 hearings, the Tribunal said that it would proceed
14 Memorandum/Directions (Wai 1040, #2.5.96, 29 September 2011) at [11].
15 Memorandum/Directions (Wai 1040, #2.5.104, 7 December 2011) at [25].
16 Memorandum/Directions (Wai 1040, #2.5.118, 10 April 2012).
on the basis that the Stage 2 generic hearings would commence before release of the
Stage 1 report.19
[23] The Tribunal’s resourcing issues continued to affect its workflow. In August 2012, the Tribunal noted that experience had indicated that the writing of a Tribunal report was not a short process and that some reports had taken two-and-a- half years while other reports had taken in excess of five years.20 It said21 that it could guarantee claimants that best efforts were being made to complete the Stage 1 report as soon as possible. The Tribunal said, however, that it would not
compromise the quality and the standard of the report in order to produce it in a quicker timeframe. Noting comments at a recent judicial conference with regard to the importance of having the Stage 1 report prior to Stage 2 hearings, the Tribunal said it was considering a number of options to speed up the writing process which may include focusing all resourcing on the report rather than splitting it between Stage 2 preparations and report writing.
[24] By November 2012, however, the Tribunal’s resources had been directed away from the Wai 1040 Inquiry in favour of other, urgent matters and the Presiding Officer of the Tribunal told the parties the Tribunal had concluded that, while acknowledging “the claimants’ strong regard for the importance of having the Stage
1 report before Stage 2 hearings start”, planning should continue from that point on the basis that the Stage 1 report would not be available at the commencement of Stage 2 hearings in March 2013.22
[25] It was suggested at a judicial conference on 17 December 2012 that the Tribunal could produce a truncated Stage 1 report similar to that which it had issued for the National Fresh Water and Geothermal Resources Inquiry (Wai 2358). The Tribunal did not take up that proposal noting that, unlike the Wai 2358 Inquiry,
Wai 1040 did not meet the Tribunal’s urgency criteria.23
19 Memorandum/Directions (Wai 1040, #2.5.123, 19 June 2012) at [12].
20 Memorandum/Directions (Wai 1040, #2.5.127, 2 August 2012) at [21].
[26] On 20 September 2013, with the Stage 1 report still in preparation, Judge Coxhead noted that the Tribunal had received a number of requests for an update on progress. He said:24
Due to the cumulative impact of urgency and remedies applications on the Tribunal’s district inquiry work programme, matters of timing are problematic. For this reason I am not in a position to give any indication beyond saying that we remain committed to releasing the report as soon as possible, as time and resourcing allow.
[27] Stage 3 hearings began in March 2013 as scheduled. The Tribunal’s commitment to releasing the Stage 1 report as soon as time and resourcing allowed was repeated on 22 October 2013 when Judge Coxhead said he understood that receiving the report was a matter of high priority for Inquiry parties.25 He added the mildly encouraging information that he had recently received confirmation of an increase in resources towards the Stage 1 report writing and said it was hoped that this additional resourcing would allow the Tribunal to progress the report at a faster pace. He said, however, that at that time he was unable to give a firm indication of
when the report would be released.
[28] The memorandum issued on 22 October 2013 is the most recent of the
Tribunal’s memoranda referred to the Court at the hearing of this application on
3 April 2014. Mr Andrew, who appeared as amicus curiae, and Mr Sharrock have not referred me to any post-hearing memorandum bearing on the issues. I take the current position, therefore, to be that expressed by the Tribunal in October 2013.
[29] It is now more than three years since the Tribunal Stage 1 hearings were concluded. The Stage 2 hearings on generic issues are continuing. The plaintiff does not know how far advanced the Tribunal’s preparation of the Stage 1 report might be, nor does she have any way of estimating, much less knowing, when the report will be released. Information that the Tribunal remains “committed to releasing the report as soon as possible, as time and resourcing allow” tells her nothing of any value to her in deciding whether, when, and how to continue to
participate in the Stage 2 hearing process and whether, when, and how to initiate any settlement discussions with the Crown.
The position taken by the Tribunal and the Attorney-General in this proceeding
[30] The proceeding began by the filing of a statement of claim on 4 October 2010 which challenged the manner in which the Tribunal had decided to conduct its hearings in the Inquiry. Ms Baker claimed she had been deprived of a fair hearing by unreasonable time limits placed on the giving of evidence and cross-examination, and she also alleged at that time that the Tribunal had refused to report on her claim.
[31] Consistently with the approach to judicial review proceedings usually taken by tribunals exercising quasi-judicial functions,26 the Tribunal indicated that it would not take an active role in the proceeding. In a Minute issued on 19 November 2010, Duffy J noted that in such circumstances the Attorney-General frequently assumed the role of an opposing party,27 but said that the Attorney-General had filed the memorandum stating that he did not seek to intervene in this case. Nevertheless, the Judge considered joinder of the Attorney-General to be necessary, given the public interest in ensuring that the legitimate exercise of power by an inferior court or statutory tribunal exercising quasi-judicial functions is not impeded by baseless allegations brought in judicial review proceedings. It is reasonable to infer that the Judge also considered it would be helpful to the Court and the plaintiff to have assistance from Crown counsel if it became necessary to receive evidence or
submissions on behalf of the Tribunal.
[32] On 18 July 2012, when the Stage 1 hearings had well and truly been completed, the matter was brought before Rodney Hansen J who noted that although there was something to be said for the proceeding being brought to an end at that stage, the plaintiff preferred to keep the proceeding alive pending release of the Stage 1 report. The matter was adjourned for a telephone conference sometime after March 2013. In a Minute dated 13 March 2013, Collins J adjourned the proceeding and noted Mr Sharrock’s advice that if the Tribunal had not delivered its report by 11
September 2013, Mr Sharrock would take steps to prosecute the claim. Counsel did so faithfully by filing an amended statement of claim and application for interim orders on 13 September 2013.
[33] Because the Attorney-General maintained his position of not involving himself in the proceeding, Allan J appointed Mr Andrew amicus curiae by Minute dated 13 November 2013.
[34] The Tribunal has taken no step in the proceeding but Crown counsel filed a compendium of Waitangi Tribunal directions taken from the record of the Inquiry and from which the above account of the Tribunal’s proceedings has been drawn. I have been left to rely on the content of the memoranda of directions issued from time to time to infer what might be the Tribunal’s response to the plaintiff’s claim that it has delayed unreasonably the issuing of its Stage 1 report.
The submissions of counsel
[35] In his capacity as counsel assisting the Court, Mr Andrew addressed the legal principles relevant to the issue of delay and factors relevant to an assessment of whether the delay in this case has been unreasonable. I have found his submissions to be helpful and I refer below, in giving the reasons for the decisions I have made in this case, to a number of the matters he drew to my attention.
[36] I am also grateful to Mr Sharrock for his assistance on behalf of the plaintiff. In measured submissions, he was critical of the Tribunal’s response that insufficient resourcing has produced a three-year delay in the release of the Tribunal’s report on the Stage 1 issues and pointed to the indication given by the Presiding Officer in October last year that increased resources had been made available. So as to provide support for his submission that the Stage 1 report could have been, and should have been, made available well within three years from the completion of the hearings, Mr Sharrock informed me that what he described as “an alternate tribunal of academics” sat through the Stage 1 hearings and published a 250-page report intitled “Ngāpuhi Speaks” in September 2012.
[37] Mr Sharrock was particularly critical of the delay in light of the Tribunal’s decision to depart from its earlier commitment to releasing the Stage 1 report before commencing the hearings for Stage 2 of the Inquiry. He noted that the Tribunal had acknowledged that the answers to the questions forming the Stage 1 issues were fundamentally important to the proper determination of the claims. He argued that the plaintiff and other claimants have been prejudiced by the requirement that they be heard in respect of the Stage 2 issues without the benefit of a report which would enable them to confine their evidence and submissions without repetition of those already provided.
[38] Counsel for the plaintiff submitted that these disadvantages have also manifested themselves in disagreements amongst the claimants as to whether it is in their best interests to pursue settlement negotiations with the Crown in the absence of a Stage 1 report.
[39] There may have been a time when the Government was disinclined to enter into settlement negotiations over claims under Te Tiriti/The Treaty while proceedings before the Tribunal were on foot but that is no longer the case, as the Tribunal has recognised. In a memorandum of directions issued in November 2010,28 Judge Coxhead acknowledged that early hearings (and, I infer, interim reports) may facilitate and encourage claimants to enter into settlement discussions with the Crown. He noted that the discussions claimants have with each other, the presentation of their grievances in a public forum, and the provision of a transparent
process for hearing and reporting on evidence about their claims, all help to build the capacity and readiness of the claimants to enter into settlement negotiations with the Crown. Because a Tribunal inquiry provides a platform for “a robust and durable claims settlement process”, Judge Coxhead observed that claimants may opt out of the Tribunal’s process as and when they become ready to settle their claims.
[40] It was on this basis that the Tribunal indicated its determination to proceed with preparation for the Stage 2 hearing, but the point made by the plaintiff is that her ability to prepare for and embark on settlement negotiations has been hampered
by the failure of the Tribunal to issue its Stage 1 report in a timely fashion.
28 Memorandum/Directions (Wai 1040, #2.5.59, 15 November 2012) at 4.
Discussion
[41] I accept Mr Andrew’s proposition that a key principle of natural justice is that judicial or quasi-judicial decisions should be provided with reasonable promptitude. As the Court held in Ngunguru Coastal Investments Limited v Māori Land Court, a public body possessed of statutory responsibility for determining claims by citizens cannot shirk or defer indefinitely its responsibility to make appropriate determinations.29
[42] In Ngunguru, the Māori Land Court had adjourned indefinitely applications which had been made to the Court for a recommendation to the Minister of Transport under s 320(2) of Te Ture Whenua Māori Act 1993 that a certain piece of land be declared a road vested in the Whangarei District Council. Asher J quashed the Court’s adjournment decision and directed the Court to determine the relevant applications.
[43] The decision in Ngunguru was based upon the general principle that it is procedurally unfair for a party which has properly utilised a statutory procedure and completed a hearing to be denied the making of a decision within a reasonable time.30 The present case is not one in which the Tribunal has made an order delaying the release of the Stage 1 report indefinitely, but the principle is relevant to the issues here.
Is the delay unreasonable in all the circumstances?
[44] As Mr Andrew submitted, the question in any case founded on delay is whether the delay is reasonable having regard to the circumstances of the case. For present purposes, I consider that the relevant circumstances include:
(a) the nature of inquiries conducted by the Waitangi Tribunal, and the statutory framework;
29 Ngunguru Coastal Investments Limited v Māori Land Court [2011] NZAR 354 (HC) at [23], adopting Vea v Minister of Immigration [2002] NZAR 171 (HC).
30 Unitec Institute of Technology v Attorney-General [2006] 1 NZLR 65 (HC) at [125] (a decision overturned on appeal but not on that point).
(b) the nature and complexity of the issues;
(c) the length and scope of the hearing of evidence and submissions; (d) the importance of the decision or decisions sought;
(e) the consequences of the delay for the plaintiff; and
(f) the reasons for the delay, if any.
[45] Although the Tribunal has an obligation to inquire into any claim that is properly brought before it under the Act, it is empowered by s 7(1A) of the Act to defer its inquiry into the claim until such time as the Tribunal assesses that to be appropriate.31 Where the Tribunal elects to defer its inquiry, it is required to inform the claimant of that decision and the reasons for it.32
[46] Mr Andrew argued that that the Tribunal is not a court but a permanent commission of inquiry33 and that, unlike a court, it is not exercising a pleadings- based jurisdiction to deciding discrete or defined issues. I observe, however, that the Tribunal’s proceedings in this case have all the trappings of court proceedings: claims are made by statements of claim; issues for consideration are agreed or determined by the Tribunal; many of the claimants are represented by counsel and
those who are not have been encouraged to obtain legal representation; the Presiding Member of the panel conducts judicial conferences and issues memoranda containing directions for the conduct of hearing; and witnesses are cross-examined.
[47] As indicated at [10], the Tribunal was assisted by the claimants and legal counsel to identify the seven issues into which the Tribunal decided to inquire in Stage 1. I have observed already that the Inquiry, even as confined by the statement of Stage 1 issues, is complex and undoubtedly contentious. As Mr Andrew also reminded me, the Tribunal has no powers of decision; its duty is to make
recommendations to the Crown. In such circumstances, the recommendations need
31 Tangaere v Waitangi Tribunal HC Wellington CIV-2008-485-1177, 19 December 2008 at [25].
32 Treaty of Waitangi Act 1975, s 7(2).
33 Treaty of Waitangi Act 1975, Sch 2, cl 8; and see the Inquiries Act 2013, s 38 and Sch 1.
to be credible and persuasive if they are to have any value to the Crown and claimants. I agree with Mr Andrew that the Tribunal’s Stage 1 findings and any recommendations it makes in its report are potentially highly significant, not only for the Crown and the claimants but also for New Zealanders generally.
[48] In such circumstances, it is understandable that the Tribunal would wish to give careful consideration to the evidence and the arguments; to take time in its deliberations; and to articulate its conclusions with care. It is not certain that all of the Tribunal members will agree on all of the answers to the questions posed by the Presiding Officer in his memorandum of 29 May 2009;34 addressing any differing, is likely to add to the time which might be considered reasonable for the delivery of the report.
[49] Given the nature of proceedings before the Tribunal, it is unsurprising that reports on historical claims under Te Tiriti/the Treaty may take years rather than months to complete and publish. In the present case, the Stage 1 hearings occupied a total of five weeks. Mr Andrew drew my attention to a number of other Tribunal inquiries, ranging in hearing time from seven weeks to 26 weeks, in respect of which the time between completion of the hearing and the issuing of a report ranged from
20 months to three-and-a-half years. One inquiry is still awaiting a report despite the hearings having been concluded in December 2009.
[50] Against this background, Mr Andrew argued that the delay in the present case arises in a very different context from that in Ngunguru where the hearing lasted less than a day and related to a relatively narrow issue. I accept that point.
[51] Mr Andrew also submitted that the plaintiff ’s contention that the Tribunal’s failure to report on Stage 1 has prejudiced the claimants in the presentation of their claims at Stage 2 should be put in the context of recognising that a number of the issues, particularly those related to the interpretation of Te Tiriti/The Treaty, are not novel and have been addressed already in other inquiries. He pointed, as an
example, to the Tuhoe inquiry (the Urewera Waitangi Tribunal report)35 in which the
34 Memorandum/Directions #2.5.23, above n 2.
35 Waitangi Tribunal Te Urewera (Wai 894). Currently this report is available in pre-publication
claimants challenged the Crown’s interpretation of sovereignty as being inconsistent with the promises in the Māori text of the Treaty. He referred also to He Maunga Rongo (the Central North Island claims)36 in 2007 when the Tribunal examined the political relationship between Central North Island Māori and the Crown in the period 1840 to 1920. This included the issue of whether under Article III of Te Tiriti/The Treaty there was a right to self-government for British subjects, a matter facing the Tribunal in the Wai 1040 Inquiry. In the Taranaki report,37 the Tribunal held that tino rangatiratanga/Māori autonomy was central to the Treaty and addressed the issue of parallel sovereignty and parallel governments.
[52] Nevertheless, on several occasions in the course of this inquiry, the Tribunal acknowledged the desirability of expressing its views on the important general issues identified for the Stage 1 report before the Tribunal and the parties embarked on the Stage 2 hearings.38 It appears to have departed from that position on the grounds of expediency rather than principle. I accept that the plaintiff has been disadvantaged by the change, both in terms of the preparation and presentation of her case for the Stage 2 hearings and strategically in terms of identifying the merits of her arguments and the appropriate timing of any settlement negotiations in which she may wish to
engage.
state in four parts produced between 2009 and 2012.
36 Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (Wai 1200, 2008).
37 Waitangi Tribunal The Taranaki Report: Kaupapa Tuatahi (Wai 143, 1996).
38 See the discussion at [16], [19], [23] and [27] above.
Conclusions
[53] I am not yet persuaded that the delay in this case to date is such as to justify orders of the kind made in Ngunguru. The importance and complexity of the Tribunal’s task in completing its Wai 1040 Stage 1 report is well recognised and the Tribunal has a considerable volume of evidence to consider. The Court should not lightly interfere with the Tribunal’s power to manage its considerable workload, and in circumstances where the Court has not had the benefit of any clear explanation for the delay, it should hesitate to set a deadline for the Tribunal to complete its task.
[54] Although Mr Sharrock suggested that the independent report “Ngāpuhi Speaks” sets something of a benchmark for the timely exercise of the Tribunal’s responsibilities with regard to the Stage 1 report, the Tribunal is constrained by the limits of the resources allocated to it by the Government, and it has no control over the number and nature of the inquiries it is required to undertake into other claims, some of them being more urgent. I do not think the ability of an informal panel of academics, dedicated to the task, to produce a report within 18 months of the close of submissions can usefully be relied upon as a guide to what it is reasonable to expect of the Tribunal in this case.
[55] Moreover, up to October 2013 at least, the Tribunal did not fail to consider the concerns of the claimants who were pressing for a release of the Stage 1 report before the Stage 2 hearings began. The Tribunal has addressed the issue in its memoranda to the parties and described the difficulty it has faced in allocating finite resources to all of the inquiries it is undertaking; it has explained the various positions it has taken on the timing issue from time to time.
[56] Nevertheless, in the particular circumstances of this case, I am satisfied that in October 2013 and thereafter the Tribunal ought to have been more forthcoming in providing information to claimants about the timing of the release of the Stage 1 report. In coming to this view I have had regard to the Tribunal’s earlier commitment to releasing the initial report in a timely fashion and in advance of the Stage 2 hearings, and to the difficulties created for the claimants by the Tribunal’s decision to put that commitment aside.
[57] I consider the claimants and the Crown should have been better informed by the Tribunal in October 2013 as to the stage it had reached in the preparation of its report. The parties should also have been given a realistic estimate of the likely release date, assuming that the Tribunal’s available resources remained at the then- current level and that no new matters having greater priority because of urgency or importance would require a further redirection of resources away from the Stage 1 report in Wai 1040. Such indications would have given the plaintiff and other claimants in her position an opportunity to consider whether they should continue to direct their own resources to participation in the Stage 2 hearings or seek opportunities for settlement discussions with the Crown.
[58] The Court has not been assisted by the decisions of the Tribunal and the Attorney-General not to be represented at the hearing, and not to provide any evidence beyond that which may be gleaned from part of the record of the Inquiry. Those things could have been done, to the benefit of the plaintiff and the Court, without requiring the Tribunal or the Attorney-General to enter the fray.
[59] While I am not sufficiently informed at this point to decide whether the delay is such as to justify granting the relief sought or the making of any other substantive orders, I do consider it appropriate to issue a direction to the Tribunal to provide the Court and the plaintiff with more information.
Directions
[60] Accordingly, I direct that the Tribunal or the Attorney-General on its behalf shall file and serve on the plaintiff and Mr Andrew, by 30 June 2014, an affidavit which:
(a) describes and explains what stage the Tribunal has reached in the preparation of its Stage 1 report in Wai 1040; and
(b)contains a realistic estimate by the Tribunal of the likely release date of the Stage 1 report, based on the assumption that the Tribunal’s available resources remain at the current level and that no new matters
having greater priority because of urgency or importance will require a further redirection of Tribunal resources away from the Stage 1 report in Wai 1040.
[61] The Registrar is directed to arrange a telephone conference with all counsel, including counsel representing the Tribunal and/or the Attorney-General, at 9:00 am on the earliest available date after 30 June 2014.
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Toogood J
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