Baker v Waitangi Tribunal
[2014] NZHC 1176
•29 May 2014
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2013-485-2796 [2014] NZHC 1176
BETWEEN FELICITY MARGARET KAHUKORE
BAKER
First ApplicantVERNON WINITANA Second Applicant
AND
THE WAITANGI TRIBUNAL First Respondent
THE ATTORNEY GENERAL Second Respondent
TE KOTAHI A TŪHOE Third Respondent
Hearing: 13 November 2013 Counsel:
K L Ertel and R N Zwaan for Applicants
E J Devine for First Respondent
V L Hardy and J Prebble for Second Respondent
R E Brown for Third RespondentJudgment:
29 May 2014
JUDGMENT OF WILLIAMS J
Introduction
[1] The settlement of historical Treaty of Waitangi claims always attracts controversy. When iwi or hapū settle, adjacent kin groups not settling their claims often complain that they are being drawn in by the unwelcome gravitational pull of their relations’ settlement. That is particularly so where the unsettled neighbours are small and the settling community very large. It is even more so where the outer boundary of the proposed settlement is not delineated by whakapapa connection, but
is scribed on a map. In that sort of case, the gravitational pull of the settlement is
BAKER & ANOR v THE WAITANGI TRIBUNAL & ORS [2014] NZHC 1176 [29 May 2014]
irresistible for all communities with connection to the land, whether large or small, settling or not.
[2] In this case, the settling iwi is Tūhoe and the land is Te Urewera – an area roughly co-extensive with the current Urewera National Park. A core idea in the Te Urewera-Tūhoe settlement is that Te Urewera will be accorded its own legal personality.1 Te Urewera will be the centrepiece of this settlement, not Tūhoe. Te Urewera will be administered by a board comprising a majority of Tūhoe representatives. Other hapū and iwi have their own independent interests in
Te Urewera, and they, inevitably are greatly affected by Tūhoe’s settlement as a result.
[3] The applicants are Ms Kahukore Baker who purports to speak on behalf of Te Ūpokorehe, and Mr Vernon Winitana, purporting to speak on behalf of Ngāti Ruapani. In the hearing before me, that representation did not seem to be seriously contested.
[4] Te Ūpokorehe is primarily located around Ōhiwa Harbour in the eastern Bay of Plenty. Te Ūpokorehe territory adjoins that of their Tūhoe relations on the latter’s northern and eastern flanks. Te Ūpokorehe claims traditional interests within Te Urewera though it also has extensive interests outside that area.
[5] Ngāti Ruapani is located around the Waikaremoana area to the south of Tūhoe. Almost all of Ngāti Ruapani’s traditional territory is within the borders of Te Urewera, though it does have some other interests to the South and East.
[6] Put simply, Ms Baker and Mr Winitana say that the Te Urewera-Tūhoe settlement and proposed governance structure is so Tūhoe-dominant that it will effectively settle their claims where these relate to Te Urewera, or will so constrain the Crown’s settlement options in relation to Te Ūpokorehe and Ngāti Ruapani reparations, as to make impossible a fair and Treaty-compliant settlement of theirs.
They want to air this particular complaint in the Waitangi Tribunal (the Tribunal).
1 Te Urewera-Tūhoe Bill 146-2, cl 118.
The Tribunal applications
[7] The applicants applied to the Tribunal for urgency in order to air their claims to such prejudice before the Te Urewera-Tūhoe settlement passed the point of no return.
[8] Mr Winitana applied for urgency on 25 September 2012, 15 February 2013,
12 March 2013, and 21 May 2013. Various reasoned decisions were made for adjournment or declinature by presiding officers under purported delegation from the Deputy Chairperson of the Tribunal. The final application for urgency (filed on
21 May 2013) was declined by her Honour Judge Reeves in a decision dated 31 May
2013. Mr Winitana challenges that decision in this Court by way of application for judicial review.
[9] Ms Baker also made multiple applications. She applied for urgency on
25 October 2012; consolidation with Mr Winitana’s application on 26 October 2012; and joinder with the last of Mr Winitana’s urgency applications on 27 May 2013. All applications were declined. Judge Reeves declined the joinder application ‘on the papers’ on 28 May 2013. That decision is now challenged by way of judicial review.
[10] In addition to the applicants and the Crown, evidence was filed and submissions were made by Tūhoe in support of the Crown’s position and by the Tribunal. The Tribunal provided useful background material and submissions in relation to its practice and procedure but, appropriately, took no sides.
The challenges
[11] The applicants’ respective cases may be simply put. They advance four grounds. Two relate to the identity of the decider and two are orthodox illegality and irrationality challenges. The applicants say:
(a) the Ngāti Ruapani urgency decision and the Te Ūpokorehe joinder decision had to be made by a fully constituted Tribunal panel and could not have been delegated to a Judge acting alone;
(b)Te Ūpokorehe were entitled to a hearing before Judge Reeves decided their application for joinder with the Ngāti Ruapani urgency application;
(c) the Ngāti Ruapani urgency decision was unlawful in that the learned Judge relied on irrelevant considerations – Crown expressions of future intention; while disregarding relevant considerations – the actual commitments (prejudicial to Ngāti Ruapani) the Crown had made in the Tūhoe negotiations; and
(d)the Ngāti Ruapani urgency decision was irrational in that no reasonable assessment of the facts could have led to the learned Judge to conclude that Ngāti Ruapani was not prejudicially affected by the proposed Tūhoe settlement.
[12] On 1 May this year, I issued a minute to the parties because a further matter had arisen during the course of my work on this judgment. That is the question of whether, for any of the decisions under challenge, the learned Judge was either “the Presiding Officer at a sitting of the Tribunal or a member of the Tribunal purporting to act by direction or with the authority of the chairperson …” If she did not fit that description in cl 8(2) of the Second Schedule to the Treaty of Waitangi Act 1975 (the Act) , there was a real question around whether the delegation to her was valid for any purpose.
[13] I sought further submissions from counsel on these questions and a further hearing was held on 7 May. Because I consider the answer to that question to be dispositive of the substantive case, I will deal with that matter first before turning to deal briefly with the applicants’ challenges. I will then deal with the question of remedy.
Relevant legislation
[14] Section 4 of the Act establishes the Tribunal. Subsection (2) provides in the following terms the composition of the Tribunal:
(2) The Tribunal shall consist of–
(a) a Judge or retired Judge of the High Court or the Chief Judge of the Māori Land Court; and the Judge is both a member of the Tribunal and its Chairperson, and is appointed by the Governor-General on the recommendation of the Minister of Māori Affairs made after consultation with the Minister of Justice:
(b) not less than 2 other members and not more than 20 other members to be appointed by the Governor-General on the recommendation of the Minister of Māori Affairs made after consultation with the Minister of Justice.
[15] Clause 5(1) of the Second Schedule to the Act then describes the required
composition of the Tribunal for any particular “sitting”. It provides:
(1) The persons to constitute the Tribunal for the purposes of any sitting of the Tribunal shall comprise–
(a) as presiding officer–
(i) the Chairperson; or
(ii) a Judge of the Māori Land Court appointed by the
Chairperson to act as presiding officer; or
(iii) a member of the Tribunal appointed by the
Chairperson to act as presiding officer; and
(b) such other members of the Tribunal (being not less than 2 and not more than 6) as are appointed by the Chairperson.
[16] Clause 8 of the Second Schedule to the Act deems the Tribunal to be a commission of inquiry for the purposes of the Commissions of Inquiry Act 1908. It also empowers certain individuals to deal with certain pre-hearing or procedural matters without the necessity of convening a full Tribunal. Clause 8(2) provides as follows:
…
(2) The Chairperson of the Tribunal, or any other person, being the presiding officer at a sitting of the Tribunal or a member of the Tribunal purporting to act by direction or with the authority of the Chairperson,–
(a) may issue directions or conduct conferences; or
(b) may issue summonses requiring the attendance of witnesses before the Tribunal, or the production of documents; or
(c) may do any other act preliminary or incidental to the hearing of any matter by the Tribunal.
[17] With that factored and statutory background in mind, I turn now to address the various heads of argument in turn.
Was Judge Reeves a presiding officer or member of the Tribunal?
Introduction
[18] On 7 November 2012, the Deputy Chairperson of the Tribunal delegated to Judge Reeves the task of determining Ms Baker’s application for urgency. The delegation was in these terms:
Pursuant to cl 8(2) of the Second Schedule to the Treaty of Waitangi Act
1975, I now delegate to Judge S F Reeves, a judge of the Māori Land Court,
the task of determining the application for an urgent hearing.
[19] On 24 May 2013, the Chairperson delegated to Judge Reeves the determination of Mr Winitana’s application for urgency. The delegation was in these terms:
Pursuant to cl 8(2) of the Second Schedule to the Treaty of Waitangi Act
1975, I now delegate to Judge S F Reeves, a judge of the Māori Land Court,
the task of determining this application for an urgent hearing.
[20] Clause 8(2) identifies three classes of persons who may make orders preliminary or incidental to “the hearing of any matter”, without the necessity of sitting with a quorum of at least two other members of the Tribunal. The three classes are the Chairperson, a presiding officer at a sitting of the Tribunal or a member of the Tribunal purporting to act by direction or with the authority of the Chairperson.
[21] The terms of the delegations set out above suggest that the Deputy Chairperson and Chairperson respectively2 intended to delegate the determination of the applications to Judge Reeves as a member acting with the authority of the Chair.
Māori Land Court judges are not members of the Tribunal in terms of s 4(2) of the
2 Pursuant to s 4(2) of the Treaty of Waitangi Act 1975 the Deputy Chairperson can exercise the functions of the Chairperson in certain circumstances.
Act. Rather, they are deemed to be members by the terms of cl 5(3) of the Second
Schedule to the Act for so long as they “hold office” as presiding officer:
Where a judge of the Māori Land Court acts as presiding officer pursuant to subclause (1)(a)(ii) of this clause, that judge shall, while he or she holds office as presiding officer, be deemed to be a member of the Tribunal.
[22] Clause 5(1)(a)(ii) is referenced. Clause 5 is entitled “Sittings of the Tribunal”. Clause 5(1) describes those who must constitute the Tribunal at any sitting. They include a presiding officer and at least two but no more than six “members” appointed by the Chairperson. Clause 5(6) provides that at least one of the members of the panel must be Māori. Together this group will constitute a panel invested with the Tribunal’s powers under the Act.
[23] As I indicated in my minute of 7 May 2014, at first blush it would seem that Māori Land Court judges can only act alone in dealing with preliminary or ancillary matters for the purpose of a sitting of the Tribunal over which he or she is presiding. That power belongs as of right to the position of presiding officer at the sitting, but is also available to such Judge as a deemed member provided he or she is acting with the express authority of the Chairperson. I suggested there must be real doubt over whether Judge Reeves fitted either of these descriptions.
Submissions
[24] In submissions, the applicants generally supported the foregoing construction of cls 5 and 8 arguing therefore that Judge Reeves could not have made the orders that she did.
[25] The Crown and counsel for Tūhoe argued that such interpretation was overly technical. The Crown submitted that a narrow reading of the circumstances within which a Māori Land Court judge will qualify to make a preliminary or ancillary order in relation to a claim is neither reasonable nor practical. The Crown pointed to the history of the enactment of the Second Schedule. It was introduced in 1988 to provide a revamped and larger Tribunal with greater flexibility including in relation to the way in which preliminary matters were dealt with. It would, the Crown suggested, be absurd to require a panel to have been appointed before a presiding
officer could act alone. And doubly absurd to countenance a construction of cl 8(2) that saw a non-judicial member of the Tribunal able lawfully to make preliminary or ancillary orders outside a sitting of the Tribunal panel when a Judge could not. Such construction, the Crown argued was inconsistent with the purpose of the 1988 reforms.
[26] The Crown, quite rightly pointed out that cl 8(2) had been used in the manner deployed in this case for decades.3 The Crown also noted that various courts had commented on this form of delegation without criticism.4 Counsel for Tūhoe suggested that cl 8(2) was the mechanism by which the Chairperson appointed judges to act as presiding officers generally meaning that a judge could be a
presiding officer for the purposes of cl 8(2) without actually having a panel at the time.
Analysis
[27] Having given this matter my earnest consideration – I am more aware than most of the inconvenience this may cause – I find myself unable to agree with the submissions for the respondents in this case.
[28] In my view, cls 8(2) and 5 mean what they say. A Māori Land Court judge is only a member of the Tribunal when acting as a presiding officer in relation to a Tribunal panel. And a presiding officer only obtains such status when heading a panel as described in cl 5(1). That does not mean that he or she can only perform the functions in cl 8(2) when flanked by the panel at a sitting. Rather, cls 8(2) and (5)(1) can be sensibly read so that the presiding officer may do that which is necessary to prepare for a sitting of the Tribunal over which he or she presides.
[29] The crucial point is that the status of presiding officer is keyed to the existence of a properly constituted Tribunal. Without that, only a non-judicial
member or the chairperson can act alone under cl 8(2).
3 I confess to having made many delegations in the same format in my time as Chairperson of the
Tribunal.
4 Haronga v Waitangi Tribunal [2011] NZSC 53 [2012] NZLR 53 at [4]; Attorney-General v Mair
[2009] NZCA 625 at [19]; Koia v Waitangi Tribunal HC Wellington CIV-2010-485-1519,
22 February 2011 at [86-90].
[30] This interpretation is consistent with the background to the 1988 reforms. I agree with the Crown that the 1988 reforms were designed to enable the Tribunal to act with more flexibility. They followed the amendments in 1985 that granted the Tribunal retrospective jurisdiction, and the 1986 Lands Case.5 By 1988, the Tribunal had begun to gear up for a far busier workload. At the same time, membership expanded from three to 16.6 The membership is now 20.7
[31] But, it is important not to be a-historical. The complex consolidation of claims introduced by the Tribunal’s preparation hearing District Inquiry format was still some years away in 1988, as was the procedure whereby the Tribunal frontloaded prehearing research and claimant co-ordination before commencing a formal hearing process after years down the track.
[32] In 1988, the process was more iterative with hearings and research often proceeding simultaneously and somewhat organically. I apprehend that it was still expected at that time that the Chairperson would undertake the bulk of preliminary work in setting up Tribunal inquiries until the point where a panel was ready to take over. Certainly, in my experience at the time, the Chairperson dealt with most urgency applications or delegated them to the eminent legal scholar and Tribunal member, Professor Gordon Orr. Once the Chairperson committed to the hearing of a claim, a panel would be appointed including (usually) a judge as presiding officer. He or she would be dispatched to begin the necessary discussions with counsel in order to develop a workable hearing programme.
[33] So seen in their proper context, the 1988 changes make much sense just as they are drafted:
(a) the Chairperson would deal with most preliminaries before a panel had been selected to commence an inquiry into the particular claim. Claims in those days tended to be large and tribal. The identity of the relevant leadership was often reasonably clear and there were few of
the mandate disputes that are common today;
5 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA).
6 Treaty of Waitangi Amendment Act 1988, s 2.
7 Treaty of Waitangi Amendment Act 1988, s 4.
(b)exceptionally this preliminary function would be delegated to a Wellington-based legal member with whom the Chairperson worked closely;
(c) once a Tribunal was empanelled to commence its inquiry (and this happened much earlier in those days than is the position now) all matters would be left to the Presiding Judge.
[34] Presiding officers at a “sitting of the Tribunal” (the phrase picked up the qualifying requirements of cl 5(1) and was obviously deliberately chosen) could, in the absence of other members, issue directions, hold conferences and generally do all the things necessary to prepare the matter for the sitting of the Tribunal that was to come, or was then in process. In the latter case it was usual in those days, as now, for a brief Chambers hearing to be held by the Presiding Officer acting alone and in the absence of the large audiences that gather for these hearings, to discuss housekeeping matters and forward planning. But either way there had to be a panel and a sitting envisaged or in progress. Otherwise there was no Tribunal in terms of cl 5(1) and no duly appointed presiding officer who could be invested with the cl
8(2) power.
[35] Seen in their proper context, the wording of cls 5 and 8 was not unduly constraining at all. It would not at the time have been seen as productive of absurd consequences. They very much reflected the practice of the time. In the intervening
25 years, much has changed however. The Rangahaua Whanui research series was commenced in the early 1990s in an attempt to bring greater shape to the historical research side of the claims process. The Casebook Method of inquiry was introduced in 1996 with the aim of dealing with claims district by district and of spending more time on research preparation before going to hearing. The so-called “new approach” involving even greater pre-hearing engagement was introduced in
2000.
[36] Finally, the quantum increase in the pace of settlements since 2007 has triggered an avalanche of urgency applications by claimants seeking to ward off the unwelcome effects on them of other claimants settling claims. This has made it
necessary for the Chairperson to delegate more and more of this kind of work to other judges and members.
[37] The problem is that events have overtaken the 1988 design. Had I felt able to read wider powers into the words of cls 5 and 8, I would have striven to do so. But, in my view, the wording is too clear to permit such creativity. In any event, the implications of my finding going forward are not necessarily as significant as they may at first appear. It will mean that a full Tribunal will need to be empanelled before either the panel or the Presiding Officer of the panel can deal with an urgency application, or that the Chairperson himself or a legally qualified member must pick up more of the work.
[38] The Crown argued in the alternative that even if Judge Reeves was not validly appointed, the de facto officer doctrine applied to validate her decisions. The Crown referred to the Court of Appeal decision in R v Te Kahu8 and the late
19th century decision in Re Aldridge9 in support of this contention. Both cases
related to orders made by judges.
[39] In both cases, it was argued that the respective Judge was not validly in office and could not make the order under challenge. Aldridge related to the appointment of Edwards J in the New Zealand Supreme Court. It was common ground that he was not validly appointed because he was the fifth judge of the Supreme Court when the Civil List Act 1873 provided for the remuneration of only four. Edwards J sentenced the plaintiff to jail. The full Court found that the Judge had “the colour of his office” in fact if not in law, and upheld Aldridge’s conviction and the penalty imposed.
[40] In Te Kahu, the argument related to an interception warrant issued by Neazor J who, at that point, held office as a temporary judge. A number of arguments were made on behalf of the defendants challenging the validity of his appointment and the ambit of his jurisdiction, but the relevant argument was that he
had been appointed to a second term as a temporary judge and there was no authority
8 R v Te Kahu [2006] 1 NZLR 459 (CA) at [55-57].
9 Re Aldridge (1893) 15 NZLR 361 (CA).
to make such an appointment. The Court rejected the defendants’ primary contention but added that the de facto officer doctrine would have saved any acts of an invalidly appointed judge anyway.
[41] I do not think this doctrine applies on these facts. There is no challenge to Judge Reeves’ status as a Judge, or to her authority to sit as a presiding officer if a Tribunal is empanelled. The question here is not her status but whether she had the power as a validly appointed Māori Land Court Judge to perform certain functions.
[42] In the case of Neazor and Edwards JJ they had been “clothed with the colour of office” of High Court Judges and behaved as such. If they had been High Court Judges (the Court found Neazor J was of course) they could have performed those functions. Judge Reeves is a Māori Land Court Judge. Māori Land Court Judges cannot make these decisions. The statute does not permit it. Only presiding officers can. To attain presiding officer status, she had to be joined in a panel by at least two others. She was therefore at no stage clothed with the colour of office of a presiding officer. She did not meet the statutory description.
[43] It follows that the decisions of Judge Reeves on 28 May 2013 refusing to join Wai 1092 to the Wai 144 urgency application and the decision on 31 May 2013 to refuse urgency to Wai 144 claim were both invalid as having been improperly delegated to Judge Reeves.
[44] Having reached that conclusion, it is unnecessary for me to deal with the further grounds advanced by the plaintiff. I will however address each of them briefly before turning to the question of relief.
A full panel required?
[45] The plaintiffs argue that because, on the facts of this case, a decision to dismiss their application for urgency was effectively dispositive of their entire claim, a full panel was required before a decision of this significance could be made.
[46] Subject to my findings above in respect of a panel being a pre-condition to the valid exercise of this power, I do not agree with the plaintiff’s contention. A
decision to grant an urgent hearing to claimants is obviously preliminary to the hearing of it and can be considered by any one of the three valid deciders listed in cl 8(2). The reference to “matter” in cl 8(2)(c): “any other acts preliminary or incidental to the hearing of any matter”, is not a reference to an urgency application. Rather, “matter” is used in cl 8 in order to capture the list of the Tribunal’s functions in s 5. The section refers to the Tribunal’s claim jurisdiction, its resumption and memorial removal powers under the State-owned Enterprises Act 1986 and the Crown Forest Assets Act 1989 and its Parliamentary reference powers under s 8 of the Act. The word matter was not intended to mean any application before the Tribunal of any kind. That would have made cl 8(2)(c) circular.
Entitlement to a hearing?
[47] The first applicant, Ms Baker, says that Te Ūpokorehe should have received a hearing before Judge Reeves dealt with her application to join Ngāti Ruapani’s final urgency application. I do not think that argument has merit. The authorities are clear that there is no right to a hearing in respect of such applications. For the reasons given by Simon France J in Tangaere v Waitangi Tribunal,10 the entitlement to be heard provided for in s 4A of the Commissions of Inquiry Act 1908 (as I have said the Tribunal is a commission of inquiry)11 does not connote a right to be heard in person. It is sufficient for urgency applications to be heard on the papers. So too, by analogy, applications for joinder.
[48] In this case, Judge Reeves had the submissions and will say statements of the applicant and there was nothing in the circumstances to suggest any more was required.
Reliance on expressions of Crown intention
[49] The second applicant, Mr Winitana, argues that Judge Reeves wrongly relied
on Crown expressions of future intention towards Ngāti Ruapani (irrelevant
considerations) and ignored what the Crown had actually committed to in the
10 Tangaere v Waitangi Tribunal HC Wellington CIV-2008-485-1177, 19 December 2008.
11 Treaty of Waitangi Act 1975, Second Schedule, cl 8(1).
Te Urewera-Tūhoe settlement (relevant considerations) in dismissing the Ngāti
Ruapani urgency application.
[50] I do not agree that Crown expressions of its future intentions were irrelevant for Judge Reeves in her decision. On the contrary, I consider them to be highly relevant to an assessment of whether Ngāti Ruapani would suffer irreversible prejudice as a result of some proposed action of the Crown.
[51] The Crown made certain representations to the Judge about the ways in which it could protect its later ability to negotiate a durable settlement with Ngāti Ruapani, while currently negotiating its settlement with Tūhoe. I will address those representations in more detail below. It is sufficient to note here that the Crown indicated that it retained the ability to amend the Te Urewera-Tūhoe settlement legislation in order to accommodate Ngāti Ruapani representation on the Urewera Board when Ngāti Ruapani settles and to provide for special Ngāti Ruapani management roles with respect to Waikaremoana. Ngāti Ruapani argued that these representations were too contingent to be relevant for Judge Reeves. A promise that “we’ll change the law” was too glib a response in Ngāti Ruapani’s view.
[52] It is important under this ground to acknowledge that Treaty settlements are, for the most part, creatures of Crown – and ultimately Parliamentary – policy. They will always involve ratifying legislation and they rely for their completion on the maintenance of certain ongoing understandings between the executive and legislature. These understandings are the means by which the Minister for Treaty of Waitangi Negotiations is able to deliver (through legislation) on the Crown promises made in deeds of settlement with Māori claimants.
[53] Although the relationship has on occasion been tested, it has consistently produced legislation giving effect to Treaty settlements. In this process, the honour of the Crown is at stake, and it is in order for Judges to take careful account of what an honourable Crown represents it will be able to do for others in the future. If that were not so, there could be no confidence in the Treaty settlement process at all.
[54] The pace of settlements in the last few years is evidence that despite the inherent difficulties in bringing these old and keenly felt grievances to resolution, there is in fact a reasonable level of confidence in the process. Indeed to ignore such Crown representations would be to ignore clearly relevant considerations.
[55] I would reject this ground accordingly.
[56] As to the contention that Judge Reeves did not take into account a relevant consideration being the prejudicial effect of the Crown’s commitments on Ngāti Ruapani, it will be apparent from the discussion below that her Honour did take this consideration into account.
Irrationality
[57] Here the second plaintiff argued that no Judge could rationally have concluded that Ngāti Ruapani was not prejudicially affected by the proposed settlement. This argument is really an extension of the reliance on expressions of Crown intention argument, although it is more focused on the substance of the Judge’s balancing of factors. It is necessary therefore to address her Honour’s reasoning in order to deal with this point.
[58] Judge Reeves concluded that Ngāti Ruapani’s position was sufficiently protected despite the Te Urewera-Tūhoe settlement. That is the Crown continued to maintain an ability to provide Ngāti Ruapani with “fair and meaningful redress”.
[59] Before Judge Reeves (and also before me) Ngāti Ruapani argued two basic
points:
(a) the Tūhoe Deed did not provide for Ngāti Ruapani membership on the
Urewera Board but rather provided only for Tūhoe membership; and
(b)the Deed’s provisions in relation to Board delegation of certain functions to committees responsible to the Board, did not provide for the possibility of Ngāti Ruapani taking responsibility for its own governance of the Waikaremoana portion of Te Urewera.
[60] Judge Reeves rejected these contentions. She relied on the Crown representations to which I earlier made reference. The Crown formally advised Ngāti Ruapani in February and March 2013 that Ngāti Ruapani membership of Te Urewera Board would remain a possible outcome of a Crown/Ngāti Ruapani settlement. Such membership would be introduced by way of special legislation amending the composition of the Board.
[61] In relation to Ngāti Ruapani’s ability to preserve its autonomy in Waikaremoana, the Crown advised that the Tūhoe Deed did not exclude the possibility that a Waikaremoana committee could be established in a Ngāti Ruapani settlement with certain delegated powers for that area including approval of any objectives and policies in relation to Waikaremoana that may be contained in the over-arching Te Urewera Management Plan; taking control of the grant of concessions in the area; and advising the Urewera Board on governance and management issues of relevance to Waikaremoana.
[62] These indications from the Crown caused Judge Reeves to conclude that sufficient capacity had been preserved in the Crown to negotiate a “fair and meaningful” settlement with Ngāti Ruapani.
[63] This is an inherently fraught area for judicial review, whether undertaken in this Court or in the Tribunal. The considerations for decision-makers on both sides of a settlement negotiation and the options for redress involve policy and politics at the highest level.
[64] The Tribunal must not shrink from declaring breaches of the Treaty of Waitangi where they are found. Nor should the courts shrink from declaring unlawful that which is irrational. But the fact is the very nature of these decisions demand a healthy level of judicial deference where they are the focus of complaint. Not abdication of judicial responsibility, but sensible deference. The legal method has its limitations.
[65] In this case, it is true that certain of Ngāti Ruapani’s options were necessarily taken off the table by the adoption in the Crown/Tūhoe negotiations of a single
model of governance for Te Urewera. There is now no prospect of Ngāti Ruapani achieving the establishment of a completely autonomous Waikaremoana Board in its negotiations. But how realistic was that option anyway? In reality, it was the heft of Tūhoe, and the moral demands of its historical treatment at the hands of colonial forces, that got this unique form of self-governance over the line. It would be naïve for the Tribunal or the Courts to ignore that reality.
[66] As the Supreme Court said in the Water Case,12 options must have been in “reasonable prospect”, before the loss of them through Crown action is sufficient to prove the necessary level of “material impairment” to establish a breach of the Treaty of Waitangi. So although one option – a long shot at best – is lost, it is replaced by a new one: the chance to share in a unique self-governance model never before offered in this country to iwi in the settlement of their Treaty claims. This option is only made possible because of Ngāti Ruapani’s relationship with its larger neighbour.
[67] It is true that Ngāti Ruapani must be watchful to protect its own autonomy and identity. It will after all be locked into a structure in which it is a permanent minority. And, barring unforeseen circumstances, it will be a part of that structure for many generations to come. Ngāti Ruapani is justifiably nervous about being swamped by its bigger neighbour. But the Crown has signalled that it will negotiate with Ngāti Ruapani in good faith over seats at the Urewera Board and committee based autonomy in relation to Waikaremoana. Just how far that autonomy should go within the single Te Urewera model will be a matter for negotiation. But the Crown accepts that final approval authority for such parts of the Urewera Management Plan as affect Waikaremoana must be on the table in negotiations. And there are
provisions in the Tūhoe Deed that contemplate such accommodation.13 Counsel for
Te Kotahi a Tūhoe confirmed that in her view such autonomy outcomes were not inconsistent with the Tūhoe Deed.
[68] In the circumstances, it would have been surprising indeed for Judge Reeves to have concluded that this give and take was incapable of producing a fair and
12 New Zealand Māori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31.
13 See for example cls 4.16.4, 4.256, 4.257.2 and 4.261-3 of the Tūhoe Deed.
durable settlement objectively viewed. There is a reasonable argument (though one upon which reasonable minds might differ) that Ngāti Ruapani could well have gained more from being drawn into the Urewera model than it lost.
[69] I do not therefore accept that Judge Reeves’ decision in this respect was
irrational.
Remedy
[70] The applicants will be entitled to a declaration that the challenged decisions were unlawful. But should the applications be sent back to be reheard on a proper basis? The Te Urewera-Tūhoe Bill is in the House and the Māori Affairs Select Committee has reported back. It has included extensive comment in the report on
concerns expressed by Ngāti Ruapani’s in that forum. The committee commented:14
Ngāti Ruapani
We acknowledge that Ngāti Ruapani ki Waikaremoana’s interests overlap with those of Tūhoe. We are advised that members of Ngāti Ruapani ki Waikaremoana were consulted in the overlapping claims process. We acknowledge that Ngāti Ruapani expressed concerns about the extent of the consultation.
The bill requires Te Urewera Board to consider and provide appropriately for the relationship and the culture and traditions of iwi and hapū who have interests in Te Urewera. This includes requiring under clause 243 that the board and Ngāti Ruapani ki Waikaremoana reach a memorandum of understanding setting out how they will work together on matters relating to the Waikaremoana area. The arrangements of the memorandum of understanding can be superseded by a future Ngāti Ruapani ki Waikaremoana Treaty claims settlement.
The bill also provides for national park land within the former Onepoto Military Reserve to become a conservation area. The land will not be transferred to the Te Urewera legal entity, so that redress in relation to the land can be considered in Ngāti Ruapani ki Waikaremoana’s future Treaty settlement negotiations.
[71] I understand from Crown counsel, it is expected that the Bill will receive its third reading in July this year. In those circumstances, there is little now to be gained from requiring the Tribunal to reconsider the application and (perhaps) to see
the Tribunal commence preparations for an inquiry into the effect of the Tūhoe Deed
14 Te Urewera-Tūhoe Bill 146.2 as reported from the Māori Affairs Committee on 22 April 2014,
at 3.
on Ngāti Ruapani’s Treaty interests. The Government has signalled that in two months the Bill will be law. That includes cl 15(4) and (5) removing any jurisdiction in the Tribunal to inquire into the Deed except in relation to its implementation. There will have been little opportunity for the Tribunal to take steps (even if it was minded to do so) before it lost the ability to go further.
[72] There is no need here for me to address the debate over the meaning of s 6(6)
of the Act:
Nothing in this section shall confer any jurisdiction on the Tribunal in respect of any Bill that has been introduced into the House of Representatives unless the Bill has been referred to the Tribunal pursuant to s 8.
[73] I will leave that issue to be resolved on another day when it will make a difference to the outcome.15 My point is more practical. In fact it is the same point that moved Wild CJ in Fitzgerald v Muldoon to grant a declaration against the Prime Minister-elect in that case without going on to make consequential orders requiring employers to continue to collect superannuation contributions.16 The realities of the situation in that case and this one make pointless any order beyond the declaration.
[74] I declare therefore that the decision of Judge Reeves in relation to the applications of Ms Baker and Mr Winitana dated 28 and 31 May respectively were invalid having been made without jurisdiction.
[75] I decline to make any further order except to make an award of costs in favour of the applicants. If agreement cannot be reached as to quantum, memoranda
may be filed.
Williams J
15 See the very firm views expressed by Baragawanth J in Attorney-General v Mair, above n 4, for an introduction to that debate.
16 Fitzgerald v Muldoon [1976] 2 NZLR 615 (NZSC) at 623.
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