Baker v Waitangi Tribunal - [2014] NZHC 1219

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 Curiae

Judgment:

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…

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 Baker v Waitangi Tribunal

Details

AGLC: Baker v Waitangi Tribunal [2014] NZHC 1219
Case: [2014] NZHC 1219
Decision Date: 30 May 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Elizabeth Baker filed a judicial review proceeding against the Waitangi Tribunal and the Attorney-General, seeking a declaration that the Stage 1 report of the Te Paparahi o Te Raki Inquiry (Wai 1040) should have been issued already, and an order directing the Tribunal to produce the report within 60 days. The Inquiry concerns claims by Ngāpuhi for the redress of grievances arising from alleged breaches of the Crown's obligations under the Treaty of Waitangi. The Inquiry has been on foot since at least 2005, and the Stage 1 hearings were completed in April 2011, but the Tribunal has not released its Stage 1 report.

The legal issue in this case was whether the delay in releasing the Stage 1 report was unreasonable in all the circumstances. The Court considered factors such as the nature of inquiries conducted by the Waitangi Tribunal, the nature and complexity of the issues, the length and scope of the hearing of evidence and submissions, the importance of the decision or decisions sought, the consequences of the delay for the plaintiff, and the reasons for the delay, if any. The Court concluded that while the delay was not such as to justify orders of the kind made in Ngunguru, the Tribunal ought to have been more forthcoming in providing information to claimants about the timing of the release of the Stage 1 report.

Accordingly, the Court directed the Tribunal or the Attorney-General on its behalf to file and serve on the plaintiff and Mr Andrew, by 30 June 2014, an affidavit which (a) described and explained what stage the Tribunal had reached in the preparation of its Stage 1 report in Wai 1040; and (b) contained 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. The Registrar was 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.

Orders