CNI Iwi Holdings Limited v T�hoe Establishment Trust
[2023] NZHC 3470
•30 November 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-700
[2023] NZHC 3470
UNDER the Declaratory Judgments Act 1908, the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016 IN THE MATTER OF
the Central North Island Forests Land Collective Settlement Act 2008
BETWEEN
CNI IWI HOLDINGS LIMITED
Plaintiff
AND
TŪHOE ESTABLISHMENT TRUST
First Defendant
Continued…
Hearing: 8 August 2023 Appearances:
L Van Dam for Plaintiff
T Cooley for First Defendant and Fourth Defendant
J B Orpin-Dowell and M R G van Alphen Fyfe for Second Defendant
No appearance for Third Defendant J P Kahukiwa for Fifth Defendant
J P Ferguson for Sixth Defendant
A Clark-Tahana for Seventh Defendant B Davies for Eighth Defendant
P F Majurey for the Intervener
Judgment:
30 November 2023
JUDGMENT No. 2 OF GWYN J
CNI IWI HOLDINGS LIMITED v TŪHOE ESTABLISHMENT TRUST [2023] NZHC 3470 [30 November 2023]
Continued…
AND TE RŪNANGA O NGĀTI MANAWA
Second Defendant
TE MANA O NGĀTI RANGITIHI
Third DefendantTŪWHARETOA SETTLEMENT TRUST
Fourth DefendantTE KŌMITI NUI O NGĀTI WHAKAUE
Fifth Defendant
TE RŪNANGA O NGĀTI WHARE
Sixth DefendantRAUKAWA SETTLEMENT TRUST
Seventh DefendantTE PŪMAUTANGA O TE ARAWA TRUST
Eighth Defendant
MOANA JACKSON, TAHU POTIKI AND WAYNE NGĀTA
Ninth Defendants
AND
NGĀTI TAHU-NGĀTI WHAOA RŪNANGA TRUST
Intervener
TABLE OF CONTENTS
Introduction [1]
Background [2]
Previous judgment [8]
Steps taken by iwi since the judgment [11]
29 September 2022 mana whenua forum hui [14]
29 September 2022 Four Crown Licences Mana Whenua Hui [15] 27 October 2022 Four Crown Licences Mana Whenua Allocation Hui [16] 23 November 2022 Mana Whenua Forum Hui [21]
14 December 2022 hui [26]
Current position [32]
Purpose of the 8 August 2023 hearing [34]
Declarations arising from the judgment [35]
Directions as to appointment of new adjudication panel [36] Ngāti Manawa [38]
Tūhoe, Rangitihi, Tūwharetoa, TPT and Ngāti Tahu-Ngāti Whaoa [42] Ngāti Whare [43]
Raukawa [46]
Issues [47]
Was the November resolution a binding agreement? [48]
Ngāti Manawa [48]
Tūhoe, Tūwharetoa, TPT, Ngāti Whare, Raukawa and Ngāti Tahu-Ngāti Whaoa [57]
Discussion [67]
Was the sch 2 dispute resolution process complied with? [109]
Ngāti Manawa [109]
Tūhoe, Tūwharetoa, TPT and Ngāti Tahu-Ngāti Whaoa [113]
Discussion [119]
Direction to the new panel [132]
What is the appropriate starting point for a new panel? [133]
Can the Court properly direct the adjudication panel as to starting point?[140] Ngāti Manawa [140]
Tūhoe, Tūwharetoa, TPT and Ngāti Tahu-Ngāti Whaoa [143]
Discussion[144]
Orders [148]
Declarations arising from the judgment [148]
Directions as to new adjudication panel[149]
2022 judgment to be reissued [150]
Introduction
[1] This judgment is about whether an agreement reached between the parties was binding on them, or contingent on reaching agreement at a further step. If binding, for what purpose?
Background
[2] In 2008 the Crown and eight Central North Island Iwi (CNI Iwi) reached a Treaty settlement of their historical claims under the Treaty of Waitangi. Under the settlement, the Crown agreed to transfer 176,000 hectares of Central North Island Forests Land (CNI Forests Land) to CNI Iwi, through their respective post-settlement governance entities (PSGEs). The settlement was given effect to by the Central North Island Forests Land Collective Settlement Act 2008 (Act).
[3] Under the settlement the Crown also agreed to transfer the rentals that had accumulated from the Crown Forestry Licences (CFLs) attaching to the CNI Forests Land and the rights to ongoing rentals from the CFLs. The CNI Forests Land and accumulated rentals were transferred to CNI Iwi Holdings Ltd (Company). The shares and directorships of the Company are held equally by the PSGEs of the CNI Iwi.
[4] The role of the Company is to hold and administer the land and to distribute the ongoing rentals from the CFLs as a trustee for CNI Iwi, in accordance with the Act, the Deed of Settlement of the Historical Claims of CNI (Central North Island) Forests Iwi Collective to the Central North Island Forests Land, of 25 June 2008 (Settlement Deed) and the Trust Deed and Shareholders’ Agreement of 30 June 2009 (TD & SA).1
[5] As part of the settlement, CNI Iwi agreed on a process to allocate the CNI Forests Land amongst themselves. Allocation under this tikanga-based resolution process is to be on the basis of mana whenua. The tikanga-based resolution process is recorded in sch 2 to the Act, read together with the TD & SA.
[6]The tikanga-based resolution process comprises three stages:
1 Schedule 10 to the Settlement Deed.
(a)the identification of mana whenua interests;
(b)kanohi ki te kanohi negotiations amongst CNI Iwi; and
(c)in the absence of agreement following negotiations, mediation or adjudication to determine the allocation of the disputed lands.
[7] This case came before the Court to determine whether the third stage of that process — adjudication by the panel appointed by the Company — had been completed in accordance with the Act and the TD & SA and, if not, what further steps should be directed.
Previous judgment
[8] The previous judgment was issued on 2 August 2022 (judgment).2 It found the tikanga-based resolution process had not been validly completed. There had been no allocation of the CNI Forests Land to CNI Iwi on the basis of mana whenua. The Court reached findings on eight specific issues identified by the parties for resolution.3
[9] However, it was not possible for the Court to direct that the decision be remitted back to the original adjudication panel as two of its three members had died.4 The judgment noted that the Court could direct the Company to appoint a new adjudication panel to determine the dispute, having regard to the findings in the judgment.5 The judgment left open the question of whether the new adjudication panel should determine the issues afresh or take as the starting point the mana whenua interests identified in the original adjudication panel’s decision of 26 June 2014.6
[10] Before making any directions, I invited the parties to confer and advise the Court on whether they wished the Court to make declarations reflecting the findings
2 CNI Iwi Holdings Ltd v Tūhoe Establishment Trust [2022] NZHC 1880 [judgment]. The full background to the issues now before the Court is set out in the judgment and not repeated here.
3 At [307].
4 At [309].
5 At [312].
6 At [312].
in the judgment and to make a direction about the appointment of a new adjudication panel.7
Steps taken by iwi since the judgment
[11] After the judgment was issued a series of hui of the CNI Iwi took place to discuss the judgment and, if possible, to reach agreement as to mana whenua interests (specifically for Ngāti Whare, the sixth defendant)8 and then as to how the CNI Forests Land was to be allocated amongst iwi.
[12] While there was initially unanimity about the process to be followed by iwi, subsequently differences have arisen about the interrelationship between the two stages of the process and, as a consequence, the outcome of the process.
[13] For that reason it is necessary to set out in detail the steps taken by iwi since the judgment.
29 September 2022 mana whenua forum hui
[14] On 29 September 2022 a “Mana Whenua Forum Hui”, comprising representatives of all eight CNI Iwi was held. A two-stage process was unanimously agreed:
(a)The purpose of the first stage of the process was to seek to reach agreement as to Ngāti Whare’s relative mana whenua interests in Flaxy Creek, Matea, Whirinaki and Wairapukao (the four CFL blocks). The process was to involve the five PSGEs who had been identified as having mana whenua interests in the four CFL blocks in the adjudication panel’s 26 June 2014 decision, as well as Ngāti Whare, but would ultimately require the agreement of all eight PSGEs.
7 At [313].
8 Judgment, above n 2, at [238] found that the adjudication panel’s decision of 26 June 2014 did not make any allocations for Ngāti Whare and could not have done so. The Jackson/Ngata decision of November 2016, which purported to include interests for Ngāti Whare, was outside the adjudication panel’s powers.
(b)Once the PSGEs had reached agreement as to Ngāti Whare’s relative mana whenua interests, the second stage of the agreed process would require the eight PSGEs to endeavour to reach agreement as to how the land is to be allocated.
29 September 2022 Four Crown Licences Mana Whenua Hui
[15] In addition to the Mana Whenua Forum Hui, a Four Crown Licences Mana Whenua Hui also took place on 29 September 2022. This hui was attended only by the six iwi with mana whenua interests in the four CFL blocks, being Tūwharetoa, Ngāti Whare, Ngāti Rangitihi, Ngāti Manawa, Te Arawa, and Tūhoe. At this hui, the iwi agreed to hold a full-day hui in October.
27 October 2022 Four Crown Licences Mana Whenua Allocation Hui
[16] On 27 October 2022, a Four Crown Licences Mana Whenua Allocation Hui took place, attended by the same six iwi. After some discussion the Chair set out the issue for discussion as whether Ngāti Whare’s allocation is encompassed in Ngāti Manawa’s allocation, or whether Ngāti Manawa and Ngāti Whare have separate allocations. There was a general discussion between the representatives of the other four mana whenua iwi as to how to determine an allocation for Ngāti Whare in the four CFL blocks, and separate kōrero within the hui.
[17] As a result of those discussions, the iwi arrived at a table of percentage allocations in the four CFL blocks which provided for Ngāti Whare (the mana whenua percentage allocation table).
[18] It was agreed that the next steps were for the six iwi to take the percentage allocation table to their respective iwi for consideration before coming back to the directors of the Company. As the minutes of the 27 October 2022 hui record:
A circular resolution is to be sent to the six iwi via email to approve the final percentage allocation table. This will then go to the 8 PSGE for approval.
[19] On 28 October 2022 Owen Mitai-Wells, on behalf of the Company, emailed the six iwi. Mr Mitai-Wells’ email attached a copy of the mana whenua percentage allocation table that had been agreed at the meeting.
[20] A further email from Mr Mitai-Wells, to all eight PSGEs, was circulated on 9 November 2022. The subject of the email was “PSGE Mana Whenua Allocation”. It stated:
Following the meeting held on the 27th of October 2022 between the 6 PSGEs with mana whenua interest in the 4 CFLs (Flaxy Creek, Matea, Wairapukao and Whirinaki), an agreed allocation in these 4 CFL blocks has now been reached.
The attached table shows the agreed final allocation outcome between the 6 iwi. The highlighted cells in the 4 CFLs reflects the changes that were agreed to at the 27th of October meeting.
The next step in the process, as agreed by all PSGEs at the 29th of September meeting, is to bring the agreed allocation back to all 8 PSGEs in order to pass a resolution to approve the table with the final allocation in the 4 CFLs noted above.
We are looking to hold this hui with your PSGE mana whenua representatives via Zoom in order to pass a resolution to accept the final allocation table as attached.
The hui may also be useful for the PSGEs to discuss dates to hui ā kanohi to discuss the final part of the 29th of September discussion around how the land will be held by the PSGEs going forward.
Can you please confirm if 9am Wednesday the 23rd of November 2022 is a date that works for your mana whenua representatives?
23 November 2022 Mana Whenua Forum Hui
[21] A further “Mana Whenua Forum Hui” was then held, by Zoom, on 23 November 2022. The agenda items were:
· Ratification of the mana whenua allocation table that was circulated and included an allocation for Ngāti Whare; and
· Agree a date to meet and discuss the Crown Forest License (CFL) land structure going forward.
[22] In attendance at the 23 November hui were representatives of all eight CNI Iwi. The minutes of the hui record that the mana whenua percentage allocation table had been circulated in advance. The Company presented a draft resolution to ratify
the “mana whenua allocation table”. It is common ground that no draft resolution had been circulated to iwi in advance of the hui. While there is no copy of the draft resolution as put to the hui available, the evidence of Kani Edwards, for Ngāti Manawa, sets out his recollection that the original draft resolution was in the following (or similar) terms: “That the eight PSGE’s of CNI Holdings ratify and approve the final mana whenua allocation table as noted above.”
[23] Ngāti Manawa did not accept that wording. The minutes record their view that:
… a mana whenua allocation is not completed until all CFLs have been allocated to iwi by area that reflects the percentages in the table. Ngāti Manawa have asked for clarity that the resolution today is to approve only the percentages shown in the table but not complete the allocation of mana whenua to the PSGEs in those CLFs [sic].
[24] Following discussion, the resolution was amended to include the word “percentage”. The amended resolution, moved by Ngāti Rangitihi and seconded by Ngāti Manawa, was: “That the eight PSGEs of CNI Iwi Holdings ratify and approve the final mana whenua percentage allocation table as noted above.”
[25]The amended resolution was passed unanimously (November resolution).
14 December 2022 hui
[26] The 14 December 2022 hui was attended by representatives of Ngāti Whare, Ngāti Rangitihi, Ngāti Manawa, TPT, Ngāti Whakaue, Ngāi Tūhoe and Raukawa.
[27] At the outset of the 14 December hui resolutions were passed editing and then accepting as true and correct records the minutes of the two 29 September hui; the minutes of the 27 October hui; and the minutes of the 23 November hui.
[28] The stated purpose of the 14 December hui, having agreed the respective mana whenua percentage interests, was to resolve the allocation of the disputed CFL lands.
[29] Raukawa asked how the mana whenua percentage allocation table would be put into effect. Other iwi present confirmed this (the December) hui was intended to discuss that issue.
[30] Ngāti Rangitihi noted that keeping the CFLs in one title did not give mana whenua to iwi, so that should be discussed. Iwi discussed potential models for allocation, and the prospect of retaining the land in the collective post-2044. The PSGE representatives were not able to resolve the issue of allocation of the disputed land, disagreeing as to whether allocations of discrete parcels of land were necessary, or whether the allocation of percentage-based interests in land collectively held by the Company might be sufficient.
[31] The December hui ended without the CNI Iwi adopting a process to determine allocation of the land, based on the mana whenua percentage allocation table. The PSGEs agreed that they would need to return to Court.
Current position
[32] While agreeing that the discussions were on a staged basis, Ngāti Manawa submits that any agreement at stage one was contingent on all issues being resolved at stage two. They were not. It therefore says that a new adjudication panel will need to start the process afresh. Ngāti Whakaue, the fifth defendant, agrees with the submission that the new adjudication panel must start afresh.
[33] The first, third, fourth, seventh and eighth defendants (Tūhoe, Rangatihi, Tūwharetoa, Raukawa and Te Pūmautanga o Te Arawa (TPT) respectively) and the intervener (Ngāti Tahu-Ngāti Whaoa) say that the unanimous agreement of 23 November 2022 is binding and is the appropriate starting point for the new adjudication panel.
Purpose of the 8 August 2023 hearing
[34] The purpose of the hearing before me on 8 August 2023 was to hear submissions from the parties and determine the terms of the Court’s final judgment
and directions. Failing agreement between the parties, it is necessary for the Court to determine the nature and form of:
(a)declarations reflecting the findings in the judgment; and
(b)a direction about the appointment of a new mana whenua adjudication panel.
Declarations arising from the judgment
[35] The parties agree that the Court should issue declarations reflecting its findings on each of the eight issues determined in the judgment. Since the 8 August 2023 hearing the parties have conferred and by a joint memorandum of 11 October 2023 proposed the form of the declarations. These are discussed further at [148] below.
Directions as to appointment of new adjudication panel
[36] The second matter to be determined is what directions should be given to the Company in relation to the appointment of a new mana whenua adjudication panel.
[37] The parties’ respective positions are set out below. I record here that the Company (the plaintiff) abides the decision of the Court.
Ngāti Manawa
[38] Ngāti Manawa submits it is not open to the Court to make directions that the adjudication panel use as its starting point either of the mana whenua percentage allocation table or the adjudication panel’s 26 June 2014 decision.
[39] It says binding agreement on the mana whenua percentage allocation table was contingent on agreement being reached at the second stage of the agreed process. Agreement was not reached.
[40] Ngāti Mawana also submits the Court cannot constrain the new adjudication panel’s starting point because, first, the new panel must hear and determine the dispute in accordance with the tikanga-based resolution process set out in sch 2 of the Act.
Directing a new panel to use, as its starting point, mana whenua percentage interests identified earlier would not be consistent with that process, unless the eight PSGEs for the iwi had unanimously agreed to amend the resolution process to allow that to occur. They have not done so.
[41] Further, mandating a starting point for a new panel would improperly usurp the new panel’s function and would not be consistent with the Court’s role on an application for judicial review.
Tūhoe, Rangitihi, Tūwharetoa, TPT and Ngāti Tahu-Ngāti Whaoa
[42] The first, third, fourth and eighth defendants and the intervener submit that the Court should direct the Company to appoint a new adjudication panel to determine allocation of the CNI Forests Land having regard to the findings in the judgment and taking as its starting point either the mana whenua percentage allocation table or, in the alternative, the mana whenua interests identified in the adjudication panel’s 26 June 2014 decision.
Ngāti Whare
[43] The sixth defendant, Ngāti Whare agrees that the starting point for a new adjudication panel should be the mana whenua percentage allocation table. They support a direction to the Company to that effect.
[44] But Ngāti Whare disagrees as to the alternative starting point. They say a proposal to use the adjudication panel’s 26 June 2014 decision was not discussed or agreed in any of the post-judgment PSGE hui. The mana whenua interests identified in the 26 June 2014 decision do not include the interests of Ngāti Whare, but both the adjudication panel and the other CNI Iwi acknowledged that Ngāti Whare had mana whenua interests in four of the CFL blocks. The judgment recognised that:9
In order to achieve a just settlement of the relevant mana whenua interests of all CNI iwi, the next iteration of the Tikanga-based resolution process should have regard to Ngāti Whare’s mana whenua interests, in accordance with the Tikanga-based resolution process (or such other process as all iwi may agree).
9 Judgment, above n 2, at [237].
[45] However, Ngāti Whare says that using the mana whenua interests in the adjudication panel’s 26 June 2014 decision as a qualified starting point (with appropriate directions) would not be inconsistent with the integrity of the settlement and its intergenerational durability, provided that the new adjudication panel’s process ensures that:
(a)Ngāti Whare’s mana whenua interests are also able to be identified and provided for in the adjudication panel’s final allocation decision; and
(b)Ngāti Manawa, Ngāti Whare and Ngāti Tahu-Ngāti Whaoa are not disaffected.
Raukawa
[46] The seventh defendant, Raukawa, supports the primary position advanced by Tūhoe, Rangatihi, Tūwharetoa, TPT and Ngāti Tahu-Ngāti Whaoa. Raukawa does not take a view on the alternative starting point put forward by those iwi which, Raukawa says, was not discussed by the PSGEs in November 2022.
Issues
[47]The specific questions the Court must answer are:
(a)Was the November resolution ratifying and approving the mana whenua percentage allocation table a binding agreement, or was it contingent on agreement being reached at the December hui as to how the land would actually be allocated, in accordance with the percentages?
(b)Was the sch 2 dispute resolution process complied with?
(c)What is the appropriate starting point for a new panel?
(d)Can the Court properly direct that starting point for a new panel?
Was the November resolution a binding agreement?
Ngāti Manawa
[48] As discussed above, Ngāti Manawa says the agreement reached on the mana whenua percentage allocation table at the 23 November hui was conditional on stage two, that is, agreement as to allocation of the land in accordance with the table.
[49] Ngāti Manawa says they raised an issue with the percentages being referred to as “allocations” after the October hui. Mr Edwards for Ngāti Manawa responded to the 28 October 2022 email from the Company,10 on 31 October 2022, recording Ngāti Manawa’s understanding that, although percentages had been agreed in principle, there could be no final agreement until a land allocation had been completed, and without unanimous agreement on both issues, nothing was agreed. Mr Edwards’ email said:
Just for clarity we acknowledge that the percentages recorded in the table, record what was agreed in principle at the hui but that Ngāti Manawa’s position is that there will be no final agreement on any matter until the second stage of the discussion (around land allocation) has been completed. Ngāti Manawa are happy to use those percentages for the purposes of the second stage of the discussion concerning land allocation, but unless there is unanimous agreement reached in relation to the percentages and the land allocation, nothing is agreed.
[50] Ngāti Manawa also relies on the discussion at the Mana Whenua Forum hui on 23 November 2022 where the minutes record that the draft resolution to ratify an “allocation table” was not acceptable to Ngāti Manawa, who explained that “mana whenua allocation is not completed until all CFLs have been allocated to iwi by area” and it is important to know where in each CFL each iwi has an allocation — particularly for wāhi tapu sites. Ngāti Manawa notes that the resolution was amended at their insistence to include the word “percentage”.
[51] At the December PSGE hui the parties acknowledged that allocation was yet to occur.
10 Referred to at [19] above.
[52] Ngāti Manawa also relies on a memorandum filed by their counsel on 7 November 2022 seeking a six-month extension before reporting back to the Court, on the basis that land allocation was the primary difficulty facing the parties and, although good progress had been made on percentage allocations, “… the percentage allocations are contingent on the completion of the second stage, namely how the land is to be allocated.”
[53] In summary, Ngāti Manawa says that although iwi arrived at a table of percentages of mana whenua interests that could be used as the basis of discussion around the allocation of land, no agreement was reached in relation to the allocation of land itself and, as a result, iwi agreed they needed to return to Court. The November resolution was “merely a step in an unsuccessful attempt to reach a settlement of the issue of allocation.”
[54] Against that factual background, Ngāti Manawa says the legal requirements of a binding agreement are not satisfied. They rely primarily on Fletcher Challenge Energy Ltd v Electricity Corp of New Zealand Ltd,11 where the Court of Appeal held that for a contract to be formed it must be demonstrated that:
(a)the parties intended to be immediately bound; and
(b)the parties had agreed (expressly or by implication) on all the terms that were both legally essential to the formation of such a bargain and manifested by the parties as essential to the bargain.
[55] Ngāti Manawa emphasises the dynamics of the negotiation process.12 They say it has consistently communicated to other iwi that it is the second step — the allocation process — that is the more critical. They made concessions and compromises in respect of the discussion around percentages to ensure that iwi proceeded to that second step. They communicated that final agreement on percentage was contingent on reaching agreement on allocation.
11 Fletcher Challenge Energy Ltd v Electricity Corp of New Zealand Ltd [2002] 2 NZLR 433 (CA).
12 At [57] per Blanchard J.
[56] Ngāti Manawa says there was no discussion, or agreement, that the percentages would be used by a new adjudication panel, or in the tikanga-based resolution process more generally, if the parties failed to reach agreement. At the very least, the parties did not turn their minds to, let alone reach agreement about, what would happen if their negotiations fell over.
Tūhoe, Tūwharetoa, TPT, Ngāti Whare, Raukawa and Ngāti Tahu-Ngāti Whaoa
[57] Tūhoe, Tūwharetoa, TPT, Ngāti Whare, Raukawa and Ngāti Tahu-Ngāti Whaoa say agreement on the mana whenua percentage allocation table was not conditional or contingent on agreement being reached at the second stage of the process.
[58] These parties also rely on Fletcher Challenge Energy Ltd v Electricity Corp of New Zealand Ltd. They accept that the Court may look at subsequent conduct of the parties towards one another,13 but with the caveat that internal memoranda and communications with third parties will be of limited value in the exercise.14
[59] They emphasise a number of factors which support the submission that the mana whenua percentage allocation table is binding on the parties.
[60] First, the context to the hui, being the Court’s invitation to the parties to explore options for resolution amongst themselves before the Court made directions.
[61] Second, the 29 September 2022 resolution and the minutes of that hui demonstrate an intention to resolve the remaining disputes, including a Ngāti Whare allocation, without recourse to a further formal adjudication process.
[62] Third, the minutes of the 27 October 2022 hui support the view that the six mana whenua iwi groups agreed the mana whenua percentage allocation table on an unconditional basis.
13 Fletcher Challenge Energy Ltd v Electricity Corp of New Zealand Ltd, above n 11, at [56].
14 Relying on Australian Broadcasting Corp v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 (CA) at 550, cited in Fletcher Challenge Energy Ltd v Electricity Corp of New Zealand Ltd, above n 11, at [56].
[63] Fourth, following the 27 October 2022 hui there was no communication from Ngāti Manawa to the other six mana whenua iwi groups stating that the mana whenua percentage allocation table was contingent on the allocation of those interests being agreed. Mr Edwards’ email to Mr Mitai-Wells15 was not copied to other iwi.
[64] Fifth, the November resolution was approved and ratified on an unconditional basis and the minutes of the 23 November 2022 hui reflect that position.
[65] Sixth, the minutes of the 23 November 2022 hui show that Ngāti Manawa’s concerns were addressed to their satisfaction before the November resolution was passed. Following that hui, Ngāti Manawa did not communicate to the other CNI Iwi that the November resolution was contingent on the allocation of those interests being agreed.
[66] Finally, at the 13 December 2022 hui, the minutes of the hui on 23 November 2022 were accepted as a true and accurate record.
Discussion
[67] The parties largely agree on the proper approach to determine whether there was an intention to enter into a binding agreement.
[68] The requirement of an intention to be immediately bound is to be determined objectively.16 The Court is to take an “entirely neutral approach” when determining whether the parties intended to enter into a contract. It is permissible to look beyond the words of the parties’ “agreement” to the background circumstances from which it arose — the matrix of facts.
[69]Here, the matrix of facts starts with the Court’s direction to the parties:17
[310] I am very conscious that the parties have already spent significant time and resources in this and the prior litigation and may be reluctant for the process to start afresh.
15 Referred to at [49] above.
16 Fletcher Challenge Energy Ltd v Electricity Corp of New Zealand, above n 11, at [54].
17 Judgment, above n 2, at [310]–[313].
[311] I am also mindful of the fact that the outcome of the Tikanga-based resolution process represents a material part of the redress negotiated between the Crown and Iwi for the settlement of their historical Treaty of Waitangi claims. The Tikanga-based resolution process sought to uphold tikanga and establish a fair and equitable balance between the benefits received during the first 35 years of the CNI Settlement (comprising accumulated rentals together with a negotiated share of the rental proceeds for that period) with the benefits to be received beyond that 35 year period (comprising the allocation of interests in land and rentals proceeds that run with the land). Any relief provided by this Court should uphold the integrity of the CNI Settlement and not threaten its intergenerational durability.
[312] While it would be open to the Court to direct the Company to appoint a new adjudication panel to determine the dispute, having regard to the findings in this judgment, that leaves open the question whether a new panel would determine the issues afresh, or take as a starting point the mana whenua interests identified in the Panel’s 26 June 2014 Decision (consistent with my finding in relation to Issue six). If the latter then it is inevitable that some or all of Ngāti Manawa, Ngāti Whare and Ngāti Tahu-Ngāti Whaoa are disaffected and there is no enduring settlement.
[313] At the conclusion of the hearing, counsel for Ngāti Whare urged that the Court should allow the parties the opportunity to consider the findings in this judgment and explore options for resolution amongst themselves, before the Court makes directions. I agree that is the most appropriate course. I invite the parties to confer and I direct that they file a memorandum or memoranda as to the outcome of that process and whether they wish the Court to proceed to make declarations reflecting the findings in this judgment and to make a direction about the appointment of a new Adjudication Panel, by 1 November 2022.
[70] The series of hui were called in that context, for the express purpose of discussing the judgment and “discussing a mana whenua allocation process and a Ngāti Whare allocation in the four CFLs listed”. The two-stage process was adopted unanimously.
[71] The minutes of the 29 September 2022 hui noted the deadline for CNI Iwi to confirm to the Court whether the PSGEs had agreed on a process to work towards an allocation for Ngāti Whare.
[72] It is implicit in this context that the purpose of the hui was to reach a position that would inform the Court’s decision about the appointment of a new panel. From the relevant passages of the judgment, set out above, it is plain that must necessarily have encompassed whether the new panel would take as its starting point any agreement reached by iwi, or the 26 June 2014 Panel Decision, or start with a clean slate.
[73] As discussed above, the November resolution was a unanimous ratification and approval of the mana whenua percentage allocation table by all eight PSGEs.
[74] The mana whenua percentage allocation table had been circulated in advance of the hui. Mr Mitai-Wells’ email of 9 November 2022 noted the purpose of the 23 November hui as “in order to pass a resolution to accept the final allocation table as attached.”18
[75] The minutes of the 23 November hui note first that “CNI Management presented the mana whenua allocation spreadsheet”. The minutes also record that the spreadsheet (the mana whenua percentage allocation table) had been circulated to all the PSGEs for review. The minutes record Ngāti Manawa asking:
… around the allocation of land in the CFLs that reflects the percentages in the table still needs to be worked out. Ngati Manawa stated that in their view, a mana whenua allocation is not completed until all CFLs have been allocated to iwi by area that reflects the percentages in the table. Ngati Manawa have asked for clarity that the resolution today is to approve only the percentages shown in the table but not complete the allocation of mana whenua to the PSGEs in those CLFs [sic].
[76] Ngāti Whare “clarified that the resolution to be approved today will complete the allocation of CFLs to PSGEs per the table and that the next stage in the process will be to discuss ownership and title of that mana whenua going forward.”
[77] The minutes then record that Ngāti Manawa “were not happy with the current proposed resolution as it states that this is a mana whenua allocation instead of an approval of percentage ownership of PSGEs in each of the CFLs in the table.”
[78] Ngāti Rangitihi responded that “the allocation of percentages was agreed in the previous meeting, second part of hui needs to be a discussion and agreement of the structure to hold the whenua going forward including boundaries and title.”
[79] Ngāti Manawa further discussed the importance of “determining where in each CFL is each iwi allocation. This is important when it comes to consideration around wahi tapu.”
18 See [20] above.
[80] After some discussion as to whether the wording of the resolution could be changed, a decision was made to rename the allocation table. It was updated to “The final mana whenua percentage allocation table”. The minutes then record “[w]ith this name change to the table, all iwi present were in agreement of the name change for table and to amend the resolution to refer to the amended table name.”
[81] The resolution was moved by Ngāti Rangitihi and seconded by Ngāti Manawa. It was carried unanimously.
[82] After the amended resolution was carried, a decision was reached to hold the next PSGE meeting on 14 December 2022.
[83] On the face of the minutes of the 23 November 2022 meeting and the wording of the November resolution itself, it appears plain that any reservation or concern that Ngāti Manawa had about approving the final mana whenua percentage allocation table and how that would impact on the allocation of land was addressed to their satisfaction before the resolution was passed.
[84] Following the 23 November 2022 hui, Ngāti Manawa did not communicate to the other CNI Iwi that the November resolution was contingent on the allocation of those interests being agreed.
[85] Ngāti Manawa refers to Mr Edwards’ email to Mr Mitai-Wells on 31 October 2022. However, as already noted, Mr Edwards’ email was not forwarded to other PSGE representatives. The evidence from David Carson (a trustee and the Chairperson of Te Rūnanga o Ngāti Whare) and Rangitihi Pene (a trustee of TPT) is that they did not receive the email and that neither Mr Edwards nor any other representative of Ngāti Manawa had ever expressed that position to them. That was not refuted by Mr Edwards in reply.
[86] Mr Carson’s evidence is that, to the contrary, on 28 October 2022 he was copied into an email from Ngāti Manawa’s Chief Executive, Maramena Vercoe, who had attended the 27 October 2022 hui as one of Ngāti Manawa’s representatives, to Ngati Whare’s Chief Executive, Mere George, who had attended the hui with
Mr Carson as Ngāti Whare’s representatives. Ms Vercoe thanked Ms George for the work she had done to facilitate an outcome from the hui and “get agreement from 6 iwi across the line”.
[87] In addition, the position expressed in Mr Edwards’ email does not appear consistent with Ngāti Manawa’s stance at the 23 November 2022 hui, as set out above. The minutes of that hui do not record any statement on behalf of Ngāti Manawa that their agreement to the percentages was conditional on reaching agreement on land allocation, at the next stage. Nor does Mr Edwards’ affidavit suggest otherwise.
[88] At the 14 December 2022 hui, the minutes of the hui on 23 November 2022 were accepted as a true and accurate record.
[89] The stated purpose of the 14 December 2022 hui19 was not satisfied, because the meeting was diverted into a discussion about possible forms of ownership and whether iwi wished to continue working collectively after 2044. When Ngāti Whakaue said they would not be willing to do so, that was the end of the discussion and they did not progress to the second stage of the agreed two-stage process.
[90]The minutes of the 14 December 2022 hui record:
Ngāti Manawa explained that the iwi needs to understand what land the agreed percentages are referred to in the Crown Forest Licenses (CFL) and how this will be determined… From Ngāti Manawa’s perspective, they are interested in understanding where the mana whenua is in the particular CFLs. The title of the land is another discussion once the land has been determined.
[91] However, again, Ngāti Manawa is not recorded as saying that the mana whenua percentage allocation table did not apply from that point. There is no evidence before the Court that Ngāti Manawa’s representatives at the December hui expressed the view that they needed to return to the Court for adjudication on the percentage allocations set out in the table ratified by the November resolution.
[92] Ngāti Manawa also relies on the memorandum filed by their counsel on 7 November 2022.20 However, the memorandum is at odds with Ngāti Manawa’s
19 To resolve the allocation of the disputed CFL lands.
20 Referred to at [52] above.
conduct at the 23 November and 14 December hui, where they did not raise the question of conditionality.
[93] I agree with Ngāti Manawa that the agreed percentage interests in the mana whenua percentage allocation table do not themselves constitute an allocation of the land and that those agreed percentage interests take effect only once the issue of the allocation of the land has been agreed or determined (that is, how those percentage interests will manifest themselves “on the ground” in terms of each CFL block, including whether each iwi is entitled to a discrete and identifiable portion of each block relative to that iwi’s percentage interest).
[94] There was no disagreement as to that sentiment. For example, the evidence of both Mr Pene for TPT and Mr Carson for Ngāti Whare, is consistent with that view. Mr Pene says “TPT agrees that percentages are only a tool as part of process for allocating the CNI forests land to iwi on a basis that reflects mana whenua.” In his affidavit, Mr Carson says:
That issue [whether the allocation of exclusive and identifiable parcels of land within each CFL block to each iwi is required in order for the mana whenua allocation process to be completed] certainly needs to be resolved by agreement or determination before mana whenua allocation can be completed.
… However, I cannot accept on any basis that the agreement of the percentage interests (ie, the agreement that was reached by the iwi in terms of issue 1) was or is entirely dependent on the outcome of issue 2 being agreed. Issue 2 needs to be resolved (by agreement or determination) regardless of what the percentage interests of each iwi are in each CFL.
[95] Nor do I understand the other parties to have contended, or now to contend, that “allocation” of the land in this sense has occurred. For example, the minutes of the 29 September 2022 Mana Whenua Hui record (under the heading General Business):
Ngāti Manawa asked in [sic] there was going to be further discussion at this meeting around the other issues highlighted by the High Court’s decision in relation to the Declaratory Judgment i.e., whether the land be held in one company. Ngāti Manawa expressed their opposition to the land remaining in one company (being CNI Iwi Holdings Ltd).
[96]The minutes then note:
All iwi representatives present agreed that a further conversation around the whenua being held in one company is an important conversation to have, however, resolving the four CFL Mana Whenua allocation and a Ngāti Whare allocation should be of immediate priority given the pressing due date. Once this is resolved, it will give confidence that the iwi will resolve bigger issues without needing to go to Court.
[97] There could have been no misunderstanding that iwi had voted to accept the percentages by which allocation or distribution of the CFLs could later occur, but had not voted on the actual allocation.
[98] I do accept that Mr Mitai-Wells’ email of 28 October 2022, taken alone, was open to misunderstanding. Mr Mitai-Wells said, in relation to the process that was to follow the 27 October meeting, “Once the circular resolution has been passed, CNI, signed by all 8 PSGEs, will submit a memo to the court with the approved resolution from the 8 PSGEs that an allocation of the 4 CFLs has been reached”. Mr Edwards might well have interpreted that to mean no further allocation would occur. However, in light of the subsequent hui it is clear that was not the position of the other iwi.
[99] I acknowledge that Ngāti Manawa made clear their position, over the course of the various hui, that the allocation stage was essential, more important and more difficult, than the first stage of reaching the table of percentages.
[100] But Ngāti Manawa’s concern did not amount to an expression of conditionality as to the agreed percentages for each mana whenua iwi recorded in the mana whenua percentage allocation table.
[101] In Fletcher Challenge the Court of Appeal proceeded on the basis of treating evidence as to subsequent conduct of the parties towards one another as admissible, but noted it shared Gleeson CJ’s reservation in Australian Broadcasting Corp v XIVth Commonwealth Games Ltd that: 21
… the position is by no means so clear in connection with internal memoranda, communications of one party with a third party or statements of subjective intention made by individuals in the course of giving evidence.
21 Australian Broadcasting Corp v XIVth Commonwealth Games Ltd, above n 14, at 550.
[102] The Court of Appeal said that reservation was particularly relevant to direct expressions of subjective intent, but internal memoranda, communications of one party with a third party and statements of subjective intentions made by individuals in the course of giving evidence are largely unhelpful and involve an objective assessment.22
[103] The Court said: “In this case, as in the case before the New South Wales Court of Appeal, these types of material have proved to be contradictory and ultimately largely unhelpful.”23
[104]The communications relied on by Ngāti Manawa come within this category.
[105] For example, Mr Edwards’ email of 31 October 2022 was sent only to Mr Mitai-Wells at the Company and was not copied or forwarded to the other iwi involved in the hui.
[106] Ngāti Manawa did not, in any of the hui, state that they viewed agreement on the mana whenua percentage allocation table as being conditional on agreement being reached at stage two of the agreed process. The minutes of the 23 November 2022 hui in which the iwi resolved to accept the mana whenua percentage allocation table are unequivocal.
[107] Both Mr Edwards’ email and counsel’s memorandum of 7 November 2022 demonstrated Ngāti Manawa’s subjective intention, but do not ultimately elucidate the terms of the of the bargain agreed.24 As in the Australian Broadcasting Corp case, those materials are contradictory and ultimately unhelpful.
[108] I conclude that the November resolution unanimously approving the mana whenua percentage allocation table was not conditional or contingent on iwi reaching agreement at the second stage of the process.
22 Fletcher Challenge Energy Ltd v Electricity Corp of New Zealand Ltd, above n 11, at [58].
23 At [56].
24 At [55].
Was the sch 2 dispute resolution process complied with?
Ngāti Manawa
[109] Ngāti Manawa also says that the November resolution, ratifying and approving the mana whenua percentage allocation table, does not comply with the requirements to amend the sch 2 resolution process.
[110] The PSGEs may amend that process by unanimous resolution.25 A unanimous resolution is one passed at a meeting convened and held in accordance with the provisions of the TD & SA.26 The process set out in sch 1 of the TD & SA was not followed.
[111] Ngāti Manawa says, first, that the minutes of the 23 November hui record that it was a “Mana Whenua Forum Hui”, not a PSGE hui. Those minutes were ratified at the subsequent 14 December PSGE hui and no amendment was made to the minutes to suggest that the November hui was a PSGE hui, despite the difference between PSGE and Mana Whenua Forum Hui, being discussed at the time.
[112] Second, Ngāti Manawa says, no notice was provided to iwi that the purpose of the November hui was to amend the tikanga-based resolution process. The Company provided notice for the hui on 9 November 2023. That notice indicated a meeting was being called in order to “pass a resolution to accept the final allocation table”. The notice was given in the context of the Court’s invitation to settle the issue of what directions would be necessary. They did not, explicitly or implicitly, indicate the general nature of the business to be transacted was to alter the tikanga-based resolution process in the Act.
Tūhoe, Tūwharetoa, TPT and Ngāti Tahu-Ngāti Whaoa
[113] In response, the first, fourth and eighth defendants and intervener say that the November resolution was decided in accordance with the tikanga-based resolution
25 Central North Island Forests Land Collective Settlement Act 2008 [Act], sch 2, cl 3(3).
26 Trust Deed and Shareholders’ Agreement (30 June 2009) [TD & SA], sch 1, cl 13.1.
process set out in sch 2, cl 2 of the Act. They point to the principles of the process as the starting point. Those principles are:27
(1) The CNI forests land will be allocated to iwi on the basis of mana whenua and the agreements reached between iwi in a kanohi ki te kanohi process or otherwise determined by the resolution process provided for in the schedule.
(2) The CNI Iwi Collective is committed to the iwi deciding upon the allocation of CNI forests land for themselves, on their own terms, answerable to one another.
(3) The iwi acknowledge their commitment to a resolution process that—
(a) enhances and promotes the mana and integrity of all iwi; and
(b) is open and transparent; and
(c) promotes whanaungatanga, manaakitanga, and kotahitanga amongst the iwi; and
(d) recognises the desirability of post-settlement collaboration between them in the collective management of assets.
…
[114] The tikanga-based resolution process has three stages. Stage 1 is the identification by each iwi of the extent of their mana whenua interests over the CNI Forests Land and the extent there was agreement on allocation of particular areas to particular iwi and what interests and allocations could not be agreed.
[115] Stage 2 involves the CNI Iwi resolving disputed issues themselves, through kanohi ki te kanohi negotiations.
[116] Stage 3 is relevant only where disputes remain and provides for the use of formal mechanisms, such as an adjudication panel, to resolve issues still in dispute.
[117] The parties who seek to uphold the November resolution say that the tikanga- based resolution process promotes and empowers the CNI Iwi Collective to decide and agree amongst themselves on the allocation of CNI Forests Land, as the primary resolution mechanism. The adjudication process is to take place only to the extent that agreement has not been reached amongst the iwi who claim mana whenua interests in the disputed land.
27 Act, sch 2, cl 2.
[118] They say the hui process that occurred between September and December 2022 was in accordance with the statutory process and the principles underpinning it.
Discussion
[119]Clause 3(3) of sch 2 to the Act states:
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.
[120] The TD & SA requires 14 days’ notice of a meeting. While the terms of any proposed resolution need not be provided, the notice must specify the general nature of the business to be transacted.28 Clause 2.3 of sch 1 provides: “The accidental omission to give notice to or the non-receipt of notice by any Person entitled to that notice does not invalidate proceedings at any meeting.”
[121] Mr Mitai-Wells’ email of 28 October 2022 noted that the agreed process at the 27 October meeting was that the mana whenua percentage allocation table was to be circulated to the six PSGEs with mana whenua in the four CFL blocks to confirm the allocations reached within the table. Once the six PSGEs confirmed the attached table was correct, a circular resolution was to be sent to all eight PSGEs to ratify the allocations within the table for the four CFLs. Then, once the circular resolution had been passed, signed by all eight PSGEs, CNI was to submit a memorandum to the Court with the approved resolution from the eight PSGEs that an allocation of the four CFLs had been reached.
[122] Fourteen days’ notice of the 23 November hui was provided. While the notice did not specifically refer to amending the sch 2 resolution process, it is clear about the process that was intended to be followed.
[123] The November resolution was passed unanimously by the eight PSGEs. Although the minutes of the meeting are labelled “Mana Whenua Forum Hui”, the
28 TD & SA, sch 1, cl 2.2: “At least fourteen days’ notice of every meeting must be given… The notice must specify the place, day and hour of the meeting and the general nature of the business to be transacted but it is not necessary to specify in the notice the terms of the resolutions to be proposed.”
resolution passed was “That the 8 PSGEs of CNI Iwi Holdings ratify and approve the final mana whenua percentage allocation table as noted above.”29 At the end of the meeting, “a decision was taken to hold the next PSGE meeting on the 14th of December”.30 It is clear from the resolution in question that it was a meeting of the PSGEs.
[124]The November resolution was unconditional.
[125] In any event, Ngāti Manawa’s focus on the labels attached to the hui (“mana whenua forum hui” and “CNI Iwi PSGE hui”) is to emphasise form at the expense of substance. It is a distraction from the real question: whether or not what occurred was in fact consistent with the sch 2 resolution process.
[126] The statutory scheme is focussed on the CNI Iwi resolving matters themselves through kanohi ki te kanohi negotiations first, and through formal mechanisms, such as an adjudication panel, only where disputes remain. Clause 2(1) expressly allows, and in the first instance encourages, CNI Forests Land to be allocated to iwi on the basis of mana whenua and the agreements reached between iwi in a kanohi ki te kanohi process. It otherwise allows for determination in accordance with the resolution process set out in sch 2 as a secondary method of resolution.
[127] The Act must be applied to the circumstances as they arise, in light of its text, purpose and context.31 The mana whenua percentage allocation ratified by the CNI Iwi is empowered by sch 2 of the Act, as the primary mechanism to be employed by iwi in the tikanga-based resolution process.
[128] Schedule 2 of the Act did not contemplate that a second panel would be required, so there is no express requirement that a new adjudication panel must start afresh. However, it is consistent with the purpose of the Act to uphold an agreement reached by iwi, as occurred in November 2022.
29 Emphasis added.
30 Emphasis added.
31 Legislation Act 2019, s 10(1).
[129] Failing to uphold the November resolution would undermine the significant progress made by iwi, after working together in a tikanga-consistent way, to reach consensus. That progress was acknowledged by all iwi in the minutes of the 27 October 2022 hui: “All iwi … acknowledged each other and the hard work involved to get where the mana whenua is today, noting that it was the collective generosity of all iwi that has brought about the result achieved at this meeting”.
[130] I am satisfied that the process whereby the mana whenua percentage allocation table was ratified and approved on 23 November 2022 was in accordance with the tikanga-based resolution process prescribed in sch 2.
[131]The resolution of 23 November 2022 is therefore binding on the parties.
Direction to the new panel
[132] Ngāti Manawa has two concerns: first, as to the new adjudication panel’s starting point; and second the proper role of the Court.
What is the appropriate starting point for a new panel?
[133] The recurring theme of Ngāti Manawa’s participation in the hui, and Mr Edwards’ evidence before this Court, is that Manawa wished the CNI iwi to discuss and understand where mana whenua is in the particular CFL blocks and, with that understanding, reach an agreement on allocation. Ngāti Manawa’s view is that iwi need to have an understanding of the first of these points, in order to make the allocation. A particular concern for Manawa is the number of significant wāhi tapu sites throughout the Kaingaroa estate. Ngāti Manawa wishes to have those wāhi tapu sites returned to them and not passed on to other iwi who do not have mana whenua over those particular sites. They acknowledge the converse of that proposition. For those reasons, Ngāti Manawa says it is important that iwi walk the whenua to identify each of their wāhi tapu areas.
[134] As I understand Ngāti Manawa’s submission, it is that determining mana whenua involves both stages — the percentage allocation and the on the ground application of those percentages to allocate the land. By separating out those two
stages the adjudication panel’s role is being usurped and possible options open to it are being precluded.
[135] For example, Ngāti Manawa says that if the Court were to set the starting point, that would preclude the possibility of the adjudication panel saying that the relative interests of iwi in percentage terms, without identification of actual land, is not the best way to allocate land on a mana whenua basis.
[136] I agree that Ngāti Manawa’s concern is a significant one and other parties too (for example, Ngāti Whakaue) agreed that an association or connection with a specified area of land is fundamental and the concern must be captured in any reference to the new adjudication panel. But Ngāti Manawa’s position seems to assume that “walking the whenua” is ruled out if a new adjudication panel is directed to take the mana whenua percentage allocation table as its starting point. I do not believe that is the case. Rather, the adjudication panel would be undertaking the second stage of the process that iwi themselves had hoped to complete.
[137] Schedule 2 does not prohibit a new adjudication panel from determining allocation under Stage 2, using the mana whenua percentage allocation table agreed at Stage 1 as a basis:
(a) Clause 6(10) concerns a “dispute over disputed land” being referred to adjudication. That provision reasonably includes any dispute in relation to the disputed land and does not infer any requirement that prior agreements between the iwi in relation to the disputed land be disregarded.
(b) Clause 6(13)(a) requires iwi to provide an “agreed joint statement to the adjudication panel outlining the nature of the dispute”. It is plain from that wording that the nature of the dispute can be restricted to the issue of allocation under Stage 2.
(c) Under cl 6(14), the adjudication panel is required to reach a decision on allocation in accordance with the mana whenua test set out at cl 4(2). I accept that a decision by the adjudication panel on allocation, made in
accordance with the mana whenua percentage allocation table, will be in accordance with the mana whenua test under cl 4(2) already carried out by the iwi.
(d) Clause 6(12) requires the adjudication panel to hear the claims of the iwi interested in the disputed land. That provision is sufficient to address Ngāti Manawa’s concern, that the adjudication panel needs to understand and know the mana whenua kōrero in order to allocate the land in a way that reflects the mana whenua and wāhi tapu sites.
[138] Starting from the mana whenua percentage allocation table will not preclude the new adjudication panel from hearing from iwi about mana whenua. It will be a guide as to relative mana whenua interests, which have been agreed kanohi ki te kanohi. The adjudication panel — once it has heard from iwi — will retain the authority to determine how the land is to be allocated and the manner in which the agreed percentage interests may be reflected in that allocation.
[139] Acceptance of the mana whenua percentage allocation table as the starting point does not impede or preclude a new adjudication panel from hearing tikanga evidence and submissions from all relevant iwi with interests within each CFL block in order to determine how those percentages are translated into the allocation of land to each iwi on the ground.
Can the Court properly direct the adjudication panel as to starting point?
Ngāti Manawa
[140] Ngāti Manawa says that if the Court were to give directions to the new adjudication panel as to its starting point, that would usurp the panel’s role. The starting point is properly a matter for the new panel.
[141] Ngāti Manawa relies on Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd and Isaac v Minister of Consumer Affairs.32 In Thames Valley the Court of Appeal was critical of the directions given by the High Court, stating:33
Wide though the New Zealand powers [to give directions] are, they must of course be exercised so as not to usurp the true statutory functions of the administrative authority whose decision is in question. The orders now under appeal have to be seen as going too far in that direction. Undoubtedly the learned Judge was trying to work out a constructive and practical mechanism for achieving justice as he saw it; but, with all respect to him, it is not right to tell a local authority to appoint a committee chaired by an outsider, however independent and professionally qualified.
[142] Ngāti Manawa says that limitation is particularly important where, as here, the decision-maker has subject-matter expertise which the Court does not. All members of the adjudication panel must be fluent in te reo Māori, and be knowledgeable in matters of tikanga, including in particular how mana whenua is held and exercised by iwi.34 In that respect, Ngāti Manawa relies on Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd, where the Supreme Court held that the High Court had erred in determining what tikanga required (including in relation to mana whenua) because the Waitangi Tribunal, rather than the Court, was “uniquely placed” to undertake that evaluation.35
Tūhoe, Tūwharetoa, TPT and Ngāti Tahu-Ngāti Whaoa
[143] In response, Tūhoe, Tūwharetoa, TPT and Ngāti Tahu-Ngāti Whaoa say that, in the context of what has already occurred under the tikanga-based resolution process, it is lawful for the Court to direct the starting point for a new adjudication panel. Depending on which option is directed, the mana whenua interests identified and the proposed starting points have been either unanimously agreed between the PSGEs, or validly determined by the original adjudication panel.
32 Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606 (HC) at 639 per Tipping J.
33 At 648 per Cooke P.
34 Act, sch 2, cl 6(10)(a).
35 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at
[84] per Williams J giving the reasons of Winkelmann CJ, Glazebrook J and himself.
Discussion
[144] Unlike the Waitangi Tribunal in Wairarapa Moana,36 a new adjudication panel is not “uniquely placed” to undertake the relevant decision-making. The original panel was given the statutory responsibility, and had the expertise and knowledge, to make the 26 June 2014 determination. The PSGEs’ representatives were given the responsibility, and had the expertise and local knowledge, to make the decision recorded in the November resolution.
[145] Unlike in Wairarapa Moana, the Court here is not determining, or purporting to determine, what tikanga requires. Rather it is saying that iwi themselves have agreed that the percentage allocations are consistent with tikanga. The Court defers to the mana and expertise of the PSGEs in directing the starting point.
[146] I am not persuaded that directing a new adjudication panel to take as its starting point the mana whenua percentage allocation table, would cut across the Stage 3 process set out in sch 2, or that it would be usurping the role of the panel.
[147] I conclude that the Court can properly direct the Company to appoint a new adjudication panel and to direct that the adjudication panel take as its starting point the mana whenua percentage allocation table.
Orders
Declarations arising from the judgment
[148] First, I make the following declarations, which relate to the specific issues considered and decided on in the judgment of 2 August 2022:
(a) Issue one: The process, whereby two members of the adjudication panel made a decision, with the third member of the adjudication panel incorporating his views at a later time, complied sufficiently with the requirements of the tikanga-based resolution process.
36 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd, above n 35.
(b) Issue two: The decision to continue to have all of the land held in one title and retained by CNI Iwi Holdings Ltd was not a decision that the adjudication panel had the power to make under the tikanga-based resolution process.
(c) Issue three: The decision of the adjudication panel to convert the substantive, medial and limited interests of each iwi in the CFLs into percentage shares was valid.
(d) Issue four: The decision of the adjudication panel to change the allocation of the rental proceeds received by the first to eighth defendants for each of the CFLs from the percentages set out in sch 3 of the Central North Island Forests Land Collective Settlement Act 2008 was invalid.
(e) Issue five: The decision of the adjudication panel to give immediate effect to the changed rental allocations was invalid.
(f) Issue six: Table Two in the Jackson/Ngata Decision altered the mana whenua interests determined by the adjudication panel in the 26 June 2014 Decision and that alteration was invalid.
(g) Issue seven:37 The adjudication panel failed to give substantive recognition to the mana whenua interests of any iwi, including Ngāti Manawa’s mana whenua interests, by leaving title to the land in CNI Iwi Holdings Ltd without an allocation of interests that would provide each iwi a right to participate in decision-making regarding the management and use of the land within the relevant Crown forest lands, in a manner consistent with its relative interest.
(h) Issue eight: The substantive recognition of mana whenua does not require that a particular CFL iwi receive exclusive title to a subdivided portion of a CFL, although that is an option open to the adjudication panel. The
37 In the joint memorandum of counsel dated 11 October 2023 the fifth defendant proposed an alternative formulation of this declaration. The declaration set out above more accurately captures my finding in the judgment.
retention of all of the CFL Forests Land in one title would satisfy the requirements of the tikanga-based resolution process if the adjudication panel had gone on to require that, for example, title was to be held on the basis of separate trusts for each CFL block, with the beneficial interests of each iwi as determined being reflected.
(i) Issue nine: The adjudication panel did not err in failing to give effect to the agreement between Ngāti Manawa and Affiliate Te Arawa Iwi/Hapū.
Directions as to new adjudication panel
[149] Second, I direct that the Company is to appoint a new adjudication panel38 to determine and allocate the mana whenua interests of the CNI Iwi in the relevant CFL blocks, using as its starting point the 23 November 2022 percentage interest allocation table agreed by iwi and having regard to the findings of the Court in this judgment.
2022 judgment to be reissued
[150] As I recorded in an earlier minute, the 2022 judgment will be re-issued with a date corrected throughout.39
Gwyn J
Solicitors:
Gibson Sheat, Wellington Te Aro Law, Wellington Brookfields, Auckland Kāhui Legal, Wellington Anderson Lloyd, Dunedin
Minter Ellison Rudd Watts, Wellington Atkins Holm Majurey Ltd, Auckland Corban Revell, Auckland
38 Pursuant to Act, sch 2, cl 6(10).
39 CNI Iwi Holdings Ltd v Tūhoe Establishment Trust HC Wellington CIV-2019-485-700, 15 May 2023 (Minute of Gwyn J) at [9]–[10].
0
3
0