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Griggs v Attorney-General

Griggs v Attorney-General

Case [2021] NZHC 2913 29 October 2021

Constitutional Validity

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-587

[2021] NZHC 2913

IN THE MATTER of Te Tiriti O Waitangi

AND

an agreement between the Crown, the New Zealand Māori Council, and the Federation of Māori Authorities dated 20 July 1989

AND

the Ngāti Kahungunu Ki Wairarapa Tamaki Nui-Ā-Rua Settlement Trust Deed dated

30 March 2017

BETWEEN

RYSHELL GRIGGS AND MARK CHAMBERLAIN ON BEHALF OF NGĀI TŪMAPŪHIA-Ā-RANGI HAPŪ

Plaintiffs

AND

THE ATTORNEY-GENERAL

First Defendant

AND

THE MINISTER FOR TREATY OF WAITANGI NEGOTIATIONS

Second Defendant

AND

NGĀTI KAHUNGUNU KI WAIRARAPA TĀMAKI NUI-Ā-RUA SETTLEMENT

TRUST

Third Defendant

Hearing: 28 October 2021

Appearances:

F E Geiringer and P V Cornege for the Plaintiffs V L Hardy and C Tyson for the Attorney-General

M G Colson QC for Ngāti Kahungunu Ki Wairarapa Tāmaki Nui- Ā-Rua Settlement Trust

J E Hodder QC, L L Fraser and R M A Jones for Mercury NZ Limited

M K Mahuika and T N Hauraki for the Wairarapa Moana Ki Pouakani Incorporation

F B Barton and A L Clark-Tahana for the Ruakawa Settlement

GRIGGS AND CHAMBERLAIN ON BEHALF OF NGĀI TŪMAPŪHIA-Ā-RANGI HAPŪ v THE ATTORNEY-GENERAL [2021] NZHC 2913 [29 October 2021]

Trust

R A Siciliano for the Trustees of the Rangitane Tu Mai Ra Trust

Judgment:

29 October 2021

JUDGMENT OF COOKE J

(Interim injunction)

[1] By interlocutory application dated 27 October the applicants sought an interim injunction in the following terms:

(a)until further order of the Court, the third defendant in this proceeding (The Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua Settlement Trust) is enjoined from signing a deed of settlement with the Crown; and

(b)the Court declares that, were the Crown to sign a deed of settlement which purported to include Wai 429 without waiting for a final determination by the Waitangi Tribunal of the Wai 429 application for resumption under section 8HB of the Treaty of Waitangi Act 2021, including any resultant reviews and appeals before the senior courts, it would breach the Crown’s commitments under Te Tiriti o Waitangi and the Crown Forest Agreement.

[2] After being assessed by the Executive Judge I was allocated to hear the application given my familiarity with the background as a consequence of being the trial Judge in Mercury NZ Ltd and Ors v The Waitangi Tribunal and Ors.1 The Supreme Court has recently granted leave to appeal to directly appeal that judgment to that Court.2 Following an urgent telephone conference the hearing was scheduled for 2.15 pm on 28 October. At the conclusion of the hearing I indicated that I would advise on the outcome of the application given that the deed of settlement to which it related was to be signed the following day (that is today) and that my reasons would

1 Mercury NZ Ltd and Ors v The Waitangi Tribunal and Ors [2021] NZHC 654.
2 Wairarapa Moana Ki Pouakani Inc v Mercury NZ Ltd [2021] NZSC 134.

follow. I advised that the…

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 Griggs v Attorney-General

Details

AGLC: Griggs v Attorney-General [2021] NZHC 2913
Case: [2021] NZHC 2913
Decision Date: 29 October 2021

CaseChat Overview and Summary

The plaintiffs, Ryshell Griggs and Mark Chamberlain, sought an interim injunction to prevent the Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua Settlement Trust from signing a deed of settlement with the Crown. They also sought a declaration that any settlement which included Wai 429 without a final determination by the Waitangi Tribunal would breach the Crown's commitments under Te Tiriti o Waitangi and the Crown Forest Agreement. The Court dismissed the application and granted leave to appeal. The plaintiffs argued that the Settlement Trust was required to obtain a special resolution from the beneficiaries before entering the Deed of Settlement, but the resolution obtained did not meet the required threshold. The Court accepted that there was an arguable case that the Settlement Trust acted inconsistently with the formal requirements for obtaining a special resolution, but found that the processes followed were substantively similar to the mandated processes. The Court also found that there was no serious question to be tried on the plaintiffs' claim that the Crown's actions in entering the settlement were a breach of the Treaty of Waitangi and the Crown Forest Agreement. The Court held that the proposed settlement did not compromise the plaintiffs' legal rights, and that the Court should not interfere with the political process of Treaty settlements. The Court found that the balance of convenience and the overall interests of justice were not in favour of granting the injunction.

Orders