CNI Iwi Holdings Limited v Raukawa Settlement Trust HC Wellington CIV-2011-485-982
[2011] NZHC 581
•14 June 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2011-485-982
UNDER the Declaratory Judgments Act 1908
IN THE MATTER OF The Central North Island Forests Land
Collective Settlement Act 2008
BETWEEN CNI IWI HOLDINGS LIMITED Applicant
ANDRAUKAWA SETTLEMENT TRUST Respondent
Hearing: 7 June 2011
Counsel: M J Doogan for Plaintiff
HJP Wilson and B A Vertongen for Defendant
Judgment: 14 June 2011 at 4:00 PM
I direct the Registrar to endorse this judgment with a delivery time of 4pm on the
14th day of June 2011.
RESERVED JUDGMENT OF MACKENZIE J
Introduction
[1] The Central North Island (CNI) Forests Iwi Collective Settlement, agreed in
2008 and given effect in the Central North Island Forests Land Collective Settlement Act 2008 (the Act), broke new ground in Treaty settlements. Under it, the CNI forests land, an area of some 176,000 hectares, was transferred by the Crown to the CNI Forests Iwi Collective (the Collective), a grouping of some eight iwi having claims within the area of the CNI forests land. The rentals payable by forestry
operators holding licences over the land are, for a period from 1989 to 2044, payable
CNI IWI HOLDINGS LIMITED V RAUKAWA SETTLEMENT TRUST HC WN CIV-2011-485-982 14 June
2011
to the eight iwi groupings in the Collective in agreed shares specified in the settlement. In a novel element of the settlement, ownership of the land itself, between those iwi, is not determined by the settlement. Ownership is (subject to a reservation of 10 per cent of the land to the Crown for use in settlements with iwi not part of the Collective) to be determined by the iwi in the Collective according to a Tikanga based resolution process set out in Sch 2 of Act.
[2] Under that resolution process, an allocation agreement for the land is due to be finalised by 1 July 2011. It is now apparent that that deadline cannot be met. There is provision in the schedule for the governance entities of the respective iwi by unanimous agreement, to amend the resolution process. The short point for decision in these proceedings is whether that power to amend the resolution process enables the governance entities, if they are unanimous, to postpone the date by which the allocation agreement is to be completed. The plaintiff, the management company for the CNI Iwi Holdings Trust, takes the views that it does. The defendant, the governance entity of one of the iwi involved, is concerned that the power to amend the resolution process does not extend to postponing the date for completion.
[3] To resolve this question, the applicant seeks a declaration as to the proper interpretation of the relevant provision.
Background
[4] Schedule 2 of the Act is entitled “Tikanga based resolution process for CNI forests land”. Clause 2 sets out the principles of the resolution process. CNI forests land is to be allocated to iwi on the basis of mana whenua and the agreements reached between iwi in kanohi ki te kanohi (face to face) negotiation or otherwise determined by the resolution process provided for in the schedule. Clause 3 provides for the governance of the process. Each iwi is represented by their governance entity. For present purposes, the most relevant paras of cl 3 are:
(3) The governance entities may amend the resolution process from time to time by unanimous resolution, passed in accordance with the procedures set out in the deed of trust.
…
(6) The resolution process will be run with set time frames for each stage and be completed by 1 July 2011.
[5] Clauses 4, 5 and 6 describe the three stages of the resolution process. Under stage 1, iwi claims to mana whenua are to be identified and if possible agreed in a process extending from 1 July 2009 to 1 October 2009. Under stage 2 there is to be kanohi ki te kanohi negotiation among those iwi which have overlapping claims, to reach agreement on allocation of lands not agreed at stage 1. That process may be assisted by mediation. It is to extend from 1 October 2009 to 30 June 2010. At stage 3, the allocation agreement is to be finalised by recording the land in which agreement has been reached, and identifying any disputed land. For the disputed land, there is to be a mediation process followed by adjudication by an adjudication panel which has power to make a final decision on the allocation. The decision of the allocation panel is to be given by 25 June 2011.
[6] Clause 7 deals with the final allocation agreement. As relevant it provides:
(1) The board of the company will complete the final allocation agreement by 1 July 2011.
(2) The final allocation agreement will be final and binding.
…
[7] Despite the initial optimism of those involved, little substantive agreement was reached at stages 1 and 2. Stage 3 was in progress, and had reached the stage where the adjudication panel had been appointed. The process had, however, taken longer than envisaged and the adjudication panel indicated to the company that if the time and resources requested by the panel were not available by 4 May 2011 the panel would have no choice but to withdraw. The panel agreed to remain in place and progress the adjudication until 10 May to allow iwi a further chance to see whether agreement to extend time by unanimous resolution was possible. When it became clear that unanimous agreement to extend time was not possible, in the light of the doubts raised as to the ability to extend time and the pending issue of these proceedings, the panel resigned on 13 May 2011 because of its inability to meet the
25 June 2011 date.
The issue
[8] The essence of the question of statutory interpretation relevant to the declaration which is sought relates to the extent of the power of amendment in cl 3(3). Does it extend to the whole of the sch 2 process, so as to permit the fixing of new dates in cls 3(6) and 7(1)? Or is it confined to amendments to the three stages of the adjudication process set out in cls 4, 5 and 6?
Background to the legislation
[9] The answer to the question depends upon the proper interpretation of sch 2, its meaning being ascertained from the text of the Act and in the light of its purpose, under s 5 of the Interpretation Act 1999.
[10] The background to the Act is set out in the preamble, and its purpose is set out in s 3.
[11] Clause 3 of the preamble provides:
The Crown and the CNI Iwi Collective have made significant progress towards reaching a collective settlement, and the Crown has therefore agreed to facilitate the completion of that settlement by vesting the CNI forests land in a company, to be known as CNI Iwi Holdings Limited. The company will act as trustee of the CNI Iwi Holdings Trust and will hold and administer the CNI forests land for the CNI Iwi Collective and the Crown in accordance with this Act, the deed of settlement between the CNI Iwi Collective and the Crown, and a deed of trust:
[12] Section 3 describes the purpose of the Act in these terms:
The purpose of this Act is to—
(a) give effect to the vesting of the Crown forest land described in the first and second columns of Schedule 1 in the company and the transfer of accumulated rentals in relation to that land to the company in order to enable those assets to be allocated to the CNI Iwi Collective in settlement of their historical CNI forests land claims and to any other CNI claimants in settlement of their historical claims; and
(b) record the principles and process by which the allocation of the CNI
forests land and accumulated rentals is to be achieved; and
(c) exclude the jurisdiction of the courts and Waitangi Tribunal in relation to the historical CNI forests land claims.
[13] The settlement between the Collective and the Crown is recorded in a Deed of Settlement executed on 25 June 2008. In setting out the background the Deed of Settlement records that there had been an urgent inquiry held by the Waitangi Tribunal in June 2007, and specifically notes “the Tribunal considered it critical that decisions on allocation of CNI forests land were made by CNI iwi themselves, on their own terms, answerable to one another”. In the statement of acknowledgements concerning the settlement and the redress the Deed records:
2.12 The Collective and the Crown acknowledge that:
…
2.12.14the Members of the Collective have agreed the Collective‟s Allocation Agreement, which is set out in sch 3, which provides for:
(a) the process for determining how CNI Forests Land will be allocated amongst the Members of the Collective: and
(b) this allocation to be determined, among other things, on the basis:
(i) of mana whenua; and
(ii) that the principles of tikanga Maori will inform and govern the allocation process
…
[14] Schedule 3 records the Tikanga based resolution process for CNI forests land which is now contained in sch 2 of the Act.
[15] Pursuant to the Deed of Settlement, a Trust Deed and Shareholders‟
Agreement was settled between the Crown and the Collective and executed on
30 June 2009. That Trust Deed and Shareholders‟ Agreement also contains, as sch 5, what is now sch 2 of the Act. It is called, in the Trust Deed and Shareholders‟ Agreement, the “Collective‟s Allocation Agreement”. The Trust Deed provides for the CNI forests land to be transferred to the trustee upon the Trusts set out in the Deed. Clause 7.4 deals with the distribution of the CNI forests land holding in accordance with the Collective‟s Allocation Agreement. It provides:
(a) No Distribution (including on a resettlement under cl 26) may be made involving any part or all of the CNI Forests Land Holding to Beneficiaries except in accordance with the Collective‟s Allocation Agreement.
[16] The Trust has a perpetuity period of 80 years. The Trust Deed envisages that the CNI forests land will have been distributed within that period. It provides for the application of assets of the Trust on winding up by payment to the iwi pro rata in accordance with the percentages which apply to the forestry rentals.
Discussion
[17] When sch 2 is read in the light of that background, I consider that it is clear that control over the allocation process was to be with the members of the Collective, through their governance entities. It is a corollary of that control that they may, by unanimous resolution, extend the timeframe for completing the allocation process. That position was clearly established in the Deed of Settlement. If the question before me depended upon the interpretation of sch 3 of the Deed of Settlement, I consider it would be quite clear, in the light of the background set out above, that the power to amend the resolution process extends to the whole of that process, and is not confined to the detail of the three stages specified. The Deed is explicit in stating that the allocation agreement is the agreement of the members of the Collective, not that of the members of the Collective and the Crown. That agreement encompassed the whole of the sch 3 process. Schedule 3 is subtitled “Tikanga based resolution process for CNI forests land”. The natural interpretation of cl 3.3 of sch 3 (the equivalent of cl 3(3) of sch 2 of the Act) is that the power to vary that agreement by unanimous agreement extends to the whole of the sec 3 process. There is no support in the Settlement Agreement for the proposition that the widely expressed power in cl 3.3 of sch 3 could or should be read in a restrictive way.
[18] The respondent submits that the timeframe of the resolution process was an important part of the settlement to which the Act gives effect. It submits that Parliament must be considered to have included the resolution process in the Act for a purpose, otherwise the resolution process could have simply sat within the Deed of Settlement and the Trust Deed. It submits that if it had been intended that the
entirety of sch 2 was open to amendment at the discretion of the CNI iwi then the appropriate place to provide for this process would have been the Trust Deed.
[19] Inherent in that submission is the proposition that sch 2 of the Act is to be interpreted differently from sch 3 of the Deed of Settlement, and sch 5 of the Trust Deed and Shareholders‟ Agreement. I consider that that proposition is not correct. The purpose of the Act was to record, not to prescribe the allocation process. In recording the process, Parliament is not to be taken as having altered what the parties to the Deed of Settlement and the Trust Deed and Shareholders‟ Agreement had agreed. The identical words cannot have been intended by Parliament to bear a different meaning in the Act from that in the Deed of Settlement and Trust Deed.
[20] There is no support in the wording of cl 3(3), if that were read alone, for the submission that the power of amendment is limited to a part, but not the whole, of the resolution process. Schedule 2 is titled „Tikanga based resolution process for CNI forests land‟. The resolution process comprises the whole of the schedule. It is not confined, as the respondent‟s interpretation would confine it, to the stages described in cls 4, 5 and 6.
[21] The respondent submits, in support of the restricted application of cl 3(3), that the importance of the timeframe for the resolution process was apparent from the Parliamentary debates. It submits that the importance of the timeframe is inconsistent with an intention on the part of Parliament to allow an extension of the timeframe by the unanimous agreement of iwi.
[22] I do not accept that submission. First, I do not discern in the speeches a primacy to the timeframe of the sort for which counsel for the respondent contends. I have, as invited by counsel, considered the extracts from Hansard. The speeches note, as an important feature of the resolution process, that it had been agreed by iwi. The timeframe is noted as significant in that context. I do not take from any of the speeches the inference that the timeframe was so important to the Crown, or to parties other than the relevant iwi, that Parliament must be taken to have intended that the ability of the iwi to amend the resolution process should not allow them to extend the timeframe.
[23] Second, the limitation of the power to amend by unanimous agreement (by excluding the extension of the timeframe from that power) would, for the reasons I have given, be a variation of what had been agreed between the Crown and the Collective in the Deed of Settlement, and the Trust Deed and Shareholders‟ Agreement. I do not discern in the speeches any indication that Parliament intended to make any changes to what had been agreed. There is reference, in more than one speech, to the restriction on members proposing amendments to Treaty settlement legislation, by reference to a speaker‟s ruling that, in a bill intended to give effect to an agreement between the Crown and other parties, any proposed amendment to the bill which purports to amend that agreement is out of order. That weighs against the respondent‟s submission that the debate shows an intention to limit the power to amend the resolution process.
[24] For these reasons, I do not discern from the Parliamentary debates any intention to limit the operation of cl 3(3) of sch 2 as the respondent submits.
Result
[25] For these reasons, I consider that the applicant is entitled to the declaration it seeks. There will be a declaration that the power under cl 3(3) of sch 2 of the Central North Island Forests Land Collective Settlement Act 2008 includes the power to lawfully alter, amend or extend by unanimous resolution any or all of the timeframes provided for in sch 2.
[26] Costs are reserved. The parties may submit memoranda.
Solicitors: Michael Doogan, Barrister, Wellington for Plaintiff
Kensington Swan for Defendant
“A D MacKenzie J”
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