Bidois v Leef - [2017] NZCA 437

IN THE COURT OF APPEAL OF NEW ZEALAND

CA88/2017
[2017] NZCA 437

BETWEEN

COLIN BIDOIS AS REPRESENTATIVE OF PIRIRAKAU
Appellant

AND

RAPATA (ROBERT) LEEF AS REPRESENTATIVE OF NGATI TAKA
First Respondent

JASON AKE, TE PIO KAWE, LANCE WAAKA, ROBERT URWIN, KIMIORA RAWIRI, PHILIP HIKAIRO, STEPHANIE TAIAPA AND MIKERE WAIRUA AS TRUSTEES OF NGA HAPU O NGATI RANGINUI SETTLEMENT TRUST
Second Respondents

KIMIORA RAWIRI, TE PIO KAWE, TE RURUANGA TE KEETI (LOU GATES), PIRIPI WINIATA, LANCE WAAKA AND GEORGE MATUA EVANS AS REPRESENTATIVES OF THE OTHER HAPU OF NGATI RANGINUI
Third Respondents

CA190/2017
BETWEEN	RAPATA (ROBERT) LEEF AS REPRESENTATIVE OF NGATI TAKAFIRST APPELLANTJASON AKE, TE PIO KAWE, LANCE WAAKA, ROBERT URWIN, KIMIORA RAWIRI, PHILIP HIKAIRO, STEPHANIE TAIAPA AND MIKERE WAIRUA AS TRUSTEES OF NGA HAPU O NGATI RANGINUI SETTLEMENT TRUST Second Appellants
AND	COLIN BIDOIS AS REPRESENTATIVE OF PIRIRAKAU Respondent

Hearing:	13 July 2017
Court:	Harrison, Winkelmann and Gilbert JJ
Counsel:	F M R Cooke QC and M J Sharp for Pirirakau S P Bryers for Ngāti Taka
Judgment:	5 October 2017 at 3.00 pm

JUDGMENT OF THE COURT

AThe appeal in CA88/2017 is allowed. The declarations made in the High Court are set aside and judgment is entered for the appellant.

B The appeal in CA190/2017 is dismissed.

CThe first respondent in CA88/2017 must pay the appellant in CA88/2017 one set of costs for a standard appeal on a band A basis and usual disbursements.
DCosts in the High Court are to be determined in accordance with the outcome of these appeals.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

TABLE OF CONTENTS

Introduction  [1]
Background
           The Mana Whenua Process Agreement   [10]
           Arbitration agreement   [12]
           Deed of Settlement Trust  [16]
           Subsequent litigation  [21]
High Court judgment  [23]
Analysis  [29]
           Effect of arbitration agreement   [30]
           Effect of Deed of Settlement Trust  [36]
           Interpretation of Mana Whenua Process Agreement             [42]
           Issue estoppel  [53]
Summary  [55]
Result  [57]

Introduction

Pirirakau and Ngāti Taka are two of the eight hapū associated with the iwi Ngāti Ranginui. Ngāti Ranginui successfully pursued Treaty claims against the Crown in respect of lands in the western Bay of Plenty that were confiscated or compulsorily acquired by the Crown during the New Zealand Wars in the 1860s. These Treaty claims were settled with the Crown in June 2012 and six of the eight hapū have agreed on how the proceeds of settlement are to be allocated among them. However, Pirirakau and Ngāti Taka remain in dispute about the correct allocation as between them because each claims mana whenua in respect of the same land. These appeals arise out of that long-running dispute which is now before this Court for the second time.
The genesis of the present dispute can be traced back to agreements reached by all hapū in March 2010 as to how the settlement proceeds would be allocated and the process for determining this. We will refer to these agreements as the “allocation model” and the “Mana Whenua Process Agreement”. By the time those agreements were…

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 Bidois v Leef

Details

AGLC: Bidois v Leef [2017] NZCA 437
Case: [2017] NZCA 437
Decision Date: 5 October 2017

CaseChat Overview and Summary

The case of Bidois v Leef and Leef v Bidois involved a dispute between Pirirakau and Ngāti Taka, two hapū of Ngāti Ranginui, regarding the allocation of settlement proceeds from the Crown for lands confiscated or compulsorily acquired during the New Zealand Wars. The dispute was resolved through an arbitration process, which found that Pirirakau held exclusive mana whenua over the disputed land from 1840 to 1865. The High Court later ruled that the arbitration award did not determine the final allocation of settlement proceeds, allowing Ngāti Taka to invoke a Mana Whenua Process Agreement to seek adjustments. Pirirakau appealed this decision, arguing that the arbitration agreement replaced the Mana Whenua Process Agreement and that the allocations were final and binding.

The Court of Appeal held that the arbitration agreement effectively replaced the Mana Whenua Process Agreement, and the final allocations were enshrined in the Settlement Trust Deed, which was signed by representatives of all hapū. The Court rejected Ngāti Taka's argument that the Mana Whenua Process Agreement remained operative and that adjustments could be made to the allocation. The Court also found that issue estoppel did not apply, as the earlier appeal had only addressed the validity of the arbitration agreement, not the subsequent allocation process.

The appeal in CA88/2017 was allowed, setting aside the High Court's declarations and entering judgment for Pirirakau. The appeal in CA190/2017 was dismissed. The first respondent in CA88/2017 was ordered to pay the appellant one set of costs for a standard appeal on a band A basis and usual disbursements. Costs in the High Court were to be determined in accordance with the outcome of these appeals.

Orders