Flavell v Waitangi Tribunal - [2015] NZHC 1907

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-6385 [2015] NZHC 1907

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF

a decision of the Waitangi Tribunal contained within the Ngāti Kahu Remedies Report 2013 concerning Crown Forest and State Enterprise land

BETWEEN

TIMOTI FLAVELL Applicant

AND

WAITANGI TRIBUNAL First Respondent

THE ATTORNEY-GENERAL Second Respondent

Hearing: 23 and 24 June 2015

Counsel:

R D C Hindle, T K T A R Williams and I F F Peters for applicant

M McKillop for first respondent
C Tyson and A Allan for second respondent

Judgment:

12 August 2015

RESERVED JUDGMENT OF DOBSON J

FLAVELL v WAITANGI TRIBUNAL [2015] NZHC 1907 [12 August 2015]

Contents

Background........................................................................................................................................ [4] The Tribunal’s Remedies Report ................................................................................................... [13] The Tribunal’s power to make binding recommendations .......................................................... [27] Alleged errors of law ....................................................................................................................... [38]
(1) The Tribunal treated the power to make binding recommendations as applying only in exceptional circumstances ............................................................................................................ [38]

(2) Was the Tribunal obliged to determine competing claims to resumable properties? .......... [62] (3) The Tribunal took insufficient account of uncontested claims ............................................ [80] (4) Error alleged in deferring to Crown settlement policy ....................................................... [89] (5) Unacknowledged effect of the Tribunal’s refusal being final .............................................. [94] (6) Unacknowledged effect of leaving Ngāti Kahu without Crown forest compensation ......... [96]

Utility of relief?................................................................................................................................ [98] Costs ................................................................................................................................................[110]

[1] This proceeding represents another chapter in regrettably protracted endeavours by one Northland iwi to obtain redress from the Crown for grievances arising pre-1865, which were acknowledged a substantial number of years ago to be well-founded.1 Mr Flavell has brought the proceeding in his capacity as the head claimant for hapū and iwi of Ngāti Kahu, and for Te Rūnanga-ā-Iwi O Ngāti Kahu (Ngāti Kahu), which is the mandated iwi authority representing Ngāti Kahu in its
claims against the Crown.

[2] The application for judicial review alleges errors of law by the first respondent (the Tribunal) in a report issued on 1 February 2013 as to remedies in relation to Ngāti Kahu’s claims (the Remedies Report).2 The Tribunal was represented at the hearing of the present claim, but took no substantive part in the
proceeding.

1 In the Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 405 the Tribunal observed that relief must be given sooner rather than later, and that early relief is as necessary as it is appropriate.
2 Waitangi Tribunal The Ngāti Kahu Remedies Report (Wai 45, 2013) [Remedies Report].

[3] Ngāti Kahu’s application to the Tribunal had been for binding recommendations for the resumption of certain lands claimed within its rohe, and in relation to Crown forest assets, including accumulated rentals. The application also sought non-binding recommendations. The Tribunal declined Ngāti Kahu’s application for binding recommendations. Ngāti Kahu’s application for judicial review alleged a range of errors of law that were claimed to have rendered the Tribunal’s decision invalid. Ngāti Kahu sought a declaration that the Tribunal’s decision was invalid, and an order quashing or setting it aside. Orders in the nature of mandamus…

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 Flavell v Waitangi Tribunal

Details

AGLC: Flavell v Waitangi Tribunal [2015] NZHC 1907
Case: [2015] NZHC 1907
Decision Date: 12 August 2015

CaseChat Overview and Summary

In this case, the applicant, Ngāti Kahu, sought judicial review of the decision of the Waitangi Tribunal, challenging its decision not to make binding recommendations for the resumption of certain lands claimed within its rohe. The Tribunal’s power to make binding recommendations was provided for in sections 8A and 8HB of the Treaty of Waitangi Act 1975. Ngāti Kahu argued that the Tribunal had erred in law in its approach to the exercise of its power to make binding recommendations. Ngāti Kahu contended that the Tribunal had erred in (1) treating binding recommendations as a remedy of last resort, (2) failing to determine competing claims to resumable properties, (3) failing to consider the appropriateness of binding recommendations for parts only of the lands for which such a remedy was sought, (4) deferring to Crown settlement policy, (5) failing to recognise that its refusal being final, and (6) failing to acknowledge the effect of leaving Ngāti Kahu without Crown forest compensation. The court found that the Tribunal had erred in law in two respects. Firstly, the Tribunal had erred in treating binding recommendations as a remedy of last resort. Secondly, the Tribunal had failed to consider the appropriateness of making binding recommendations for parts only of the lands for which such a remedy was sought. However, the court found that these errors of law were not material to the Tribunal’s decision and therefore declined to grant relief.

Orders