Hall v Brown
[2025] NZHC 197
•18 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-001176
[2025] NZHC 197
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER
of an application for review of a decision under Clause 6 of Schedule 2 of the Local Government (Auckland Council) Act 2009
BETWEEN
PHILIP RAYMOND HALL
Applicant
AND
Billy Brown, Zoe Hawke, Kiwi Johnson, Mook Hohnek, David Taipari, Danella Rorebeck, Taumata Toki, Nick Maaka, John McEnteer, Riikii Minhinick, Aperahama
Edwards, Michael Baker, Glenn Wilcox, Marama Royal, Karen Wilson, Edwards Ashby, William Peters, Anahera Morehu, Georgina Curtis-Conelly, Parekawhia McLean, AS MEMBERS OF THE
SELECTION BODY ESTABLISHED UNDER THE LOCAL GOVERNMENT (AUCKLAND COUNCIL) ACT 2009
First RespondentTHE INDEPENDENT MĀORI STATUTORY BOARD
Second Respondent
Hearing: 11 February 2025 Counsel:
C B Hirschfeld and J P Hickey for Applicant
P F Majurey and T S D Hoby for First Respondent (Second Respondent abides the decision of the Court)
Judgment:
18 February 2025
JUDGMENT OF BREWER J
HALL v BROWN & ORS [2025] NZHC 197 [18 February 2025]
This judgment was delivered by me on 18 February 2025 at 2 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Introduction
[1] In 2022, Mr Hall applied to the first respondent (the Selection Body) to be appointed as a mataawaka member of the second respondent (the Board).
[2] Mr Hall was unsuccessful. The Selection Body decided (by majority vote: 11 to 7) that Mr Hall was not eligible to be appointed as a mataawaka member of the Board.
[3]Mr Hall challenges the Selection Body’s decision by way of judicial review.
Background
[4] The Board is established by the Local Government (Auckland Council) Act 2009 (the Act):
81 Establishment and purpose of board
This Part establishes a board whose purpose is to assist the Auckland Council to make decisions, perform functions, and exercise powers by—
(a)promoting cultural, economic, environmental, and social issues of significance for—
(i)mana whenua groups; and
(ii)mataawaka of Tamaki Makaurau; and
(b)ensuring that the Council acts in accordance with statutory provisions referring to the Treaty of Waitangi.
[5]The Act defines “mana whenua group” and “mataawaka”:
mana whenua group means an iwi or hapu that—
(a)exercises historical and continuing mana whenua in an area wholly or partly located in Auckland; and
(b)is 1 or more of the following in Auckland:
(i)a mandated iwi organisation under the Maori Fisheries Act 2004:
(ii)a body that has been the subject of a settlement of Treaty of Waitangi claims:
(iii)a body that has been confirmed by the Crown as holding a mandate for the purposes of negotiating Treaty of Waitangi claims and that is currently negotiating with the Crown over the claims
mataawaka means Māori who—
(a)live in Auckland; and
(b)are not in a mana whenua group
[6] The Act also establishes the Selection Body, the sole function of which is to appoint members to the Board.1 As to the appointment of mataawaka representatives:2
6 Selection body chooses mataawaka representatives for board
(1)The selection body must choose the board’s 2 mataawaka representatives.
(2)The selection body must choose the mataawaka representatives by following a process that, at a minimum,—
(a)includes public notification of the process that the body proposes to use for choosing the representatives; and
(b)provides an opportunity for nominations to be received; and
(c)requires the body to take into account the views of mataawaka when choosing the representatives.
(3)The selection body must apply clause 5 when choosing the 2 mataawaka representatives.
[7] Mr Hall completed and submitted an application form provided on behalf of the Selection Body. In it he declared that he is mataawaka in that he lives in Auckland and is not a member of a mana whenua group.
[8] Mr Hall was at the date of his application (and still is) the chairman of the board of Te Whanau o Waipareira Trust (the Waipareira Trust), a well-known
1 Local Government (Auckland Council) Act 2009, clause 2, Schedule 2.
2 Clause 6, Schedule 2.
community organisation based in West Auckland which provides support and services for mataawaka.
[9] Ms Stones, the practice manager of the law firm contracted “to provide executive support (administrative and legal) for the 2022 Independent Selection Body process”,3 conducted an internet search of Mr Hall’s name to check his eligibility for appointment. She found that on the Waipareira Trust’s website Mr Hall’s whakapapa includes Ngāti Whātua, which is a mana whenua group.
[10]Ms Stones describes what happened next:
32.To ensure the Selection Body had the best information on which to make its decisions, I emailed Mr Hall at 8.51 am, 14 October 2022 as follows:
Kia ora Raymond
We understand your whakapapa may include Ngāti Whatua. Please confirm whether that is correct.
If so, that will be relevant to your eligibility as a matāwaka representative.
Thank you Angela
33.Mr Hall then emailed me at 2.15 pm, 14 October 2022 as follows:
“Tenā koe Angela,
Thank you for your email query this morning.
As Māori we cannot separate ourselves from our whakapapa, this is inherent, and connects us to our tupuna.
The distinction is between who I am and where I am from. I am a Matāwaka, a product of my upbringing, born and raised in suburban West Auckland, with strong whakapapa to Hoani Waititi Marae. I have always, and will continue to affirm myself as proudly Matāwaka Māori.
My efforts in my community, in my mahi, in leadership and governance have always been towards elevating the profile of Matāwaka Māori, to achieve and realise our dreams and aspirations.
Ngā mihi,
Raymond Hall, Chairman
Te Whānau O Waipareira”
34.I then emailed Mr Hall at 12.04 pm, 15 October 2022 as follows:
3 Affidavit of Angela Helen Stones On Behalf Of Selection Body affirmed 29 November 2023.
“Kia Ora Raymond
Thank you, we respect your whakapapa and whanaungatanga.
The legislation is very specific on matāwaka eligibility, and it cannot be someone who is mana whenua in Auckland.
The Waipareira Trust website includes in your profile Ngāti Whatua and Te Rarawa whakapapa.
Please confirm if that information is incorrect. Thank you.
Ngā mihi Angela”
[11] Mr Hall did not respond to Ms Stones’s email of 15 October 2022. However, on 18 October 2022 Ms Stones received an email from the CEO of the Waipareira Trust, Mr John Tamihere. I quote from Ms Stones’s affidavit:
36.I received an email from Mr John Tamihere at 1.21 pm on 18 October 2022 as follows:
“Kia Ora Angela
There are a number of issues Te Whanau O Waipareira seek clarity from you on :
1. You state that as Mr Hall has a Ngati Whatua Whakapapa that this automatically excludes him from being considered as a Maataawaka Representative on the IMSB. You state the statute is clear in this regard. Please provide the specific clause or clauses of the statute that evidence your position.
2. I can whakapapa to Ngati Whatua as Whatuamarie, tuahine married into Ngati Porou. You will also note that present Maataawaka representatives, Tony Kake and Tau Henare whakapapa a lot more closely to Ngati Whatua. How many times have you challenged them?
3. Please advise who your client is and how do you obtain instructions?
4. From whom do you obtain instructions personally from in regard to the IMSB?
Mr Hall as our Chairman has made an election to represent Maataawaka.
John Tamihere”
I then emailed Mr Tamihere at 12.03 pm, 19 October 2022 as follows:
“Kia ora John
Thank you for your email.
As the nomination has been submitted by Mr Hall, we will await any further correspondence from him.
We will update the Selection Body to assist with their decision. Ngā mihi
Angela”
[12]Mr Hall was an addressee of both these emails, but he did not respond to either.
[13] The Selection Body met on 19 October 2022. It received legal advice from Mr Majurey about Mr Hall’s eligibility to be appointed to the Board as a mataawaka member. As I have said, the Selection Body decided that Mr Hall was not eligible. The resolution is minuted as follows:
That the Selection Body determines the nomination of Raymond Hall to be ineligible due to his being part of a mana whenua group (Ngāti Whātua) and the legislative eligibility criteria.
Mr Hall’s challenge
[14]Mr Hall pleads:
The First Respondent in its Selection Body process for selecting mataawaka representatives was wrong for one or more of the following reasons:
(a)The Applicant was not given an adequate opportunity to speak to or otherwise address the Selection Body to answer questions about and to discuss his eligibility: and
(b)The other candidates did not produce evidence of their support by mataawaka.
(c)The decision to declare that The Applicant was not eligible was made by the Selection Body:
(i)On the basis of advice by the Auckland Council’s legal advisers: and/or
(ii)On the basis of incorrect advice by the Auckland Council’s legal advisers; and/or
(d)The Selection Body:
(i)Failed to decide whether the credentials of each candidate, in particular the Applicant were appropriate for the position; and/or
(ii)Failed to decide:
(A)Which candidates have Whakapapa outside Auckland Iwi; and/or
(B)Whether links to Auckland Iwi should result in candidates being excluded from representing mataawaka;
(C)Whether the mataawaka candidates were “in a Mana Whenua group”; and/or
(iii)Failed to decide whether the candidates identify as mataawaka and are interested in promoting economic and environmental cultural and social issues of significance for Māori and Tāmaki Makaurau; and/or
(iv)Failed to decide which of the nominees have the ability to best represent and promote issues of significance for mataawaka; and/or
(v)Failed to interview the three nominees and/or conduct a hui or a korero with each of the nominees;
(vi)Failed to take into account the views of mataawaka when choosing the representatives.
(e)Further or alternatively, the Selection Body failed to decide whether the Applicant was mataawaka and instead allowed its agents/lawyers to do so.
[15] During the hearing before me it became clear that the key question is whether the second part of the definition of mataawaka in the Act (“are not in a mana whenua group”) renders a person ineligible for appointment if they have a genealogical or whakapapa connection to a mana whenua group, or whether to be “in” a mana whenua group for the purposes of the Act requires some further affiliation or self-identification.
[16] Mr Hall submits that it was not open to the Selection Body to decide his whakapapa based solely on the posting on the Waipareira website. To do that was against tikanga. Further, in the context of the Act, mere ancestral linkage to a mana whenua group does not mean that a person is “in” the mana whenua group. Mr Hall submits that there needs to be an additional element of chosen affiliation.
The Selection Body’s response4
[17] The Selection Body’s key submission is that Mr Hall, by reason of his whakapapa to Ngāti Whātua is “in” a mana whenua group for the purposes of the Act:
16.S10 of the Legislation Act 2019 states that the meaning of legislation must be ascertained from its text and in the light of its purpose and its context.
4 The Board abides the decision.
17.The First Respondent observes Hansard does not assist in this context, therefore the meaning of the phrase “in a Mana Whenua Group" must be ascertained from the ordinary meaning of the text and the context of other provisions in the Act. The ordinary meaning of “in” is:
“used as a function word to indicate inclusion, location, or position within limits”.5
“Within the limits or bounds of; within … In relation to; in the context of; as a member of”.6
18.The Applicant is therefore “in” a Mana Whenua Group:
a.It is common ground Te Rūnanga o Ngāti Whātua (established under the Te Rūnanga o Ngāti Whātua Act 1988 as representative for the iwi of Ngāti Whātua) is recognised as Mana Whenua in the Auckland region as defined in the Act;
b.Mr Hall’s public statement of whakapapa includes Ngāti Whātua;
c.Ngāti Whātua (as opposed to its hapū) has Mana Whenua status, and therefore Mr Hall is in a Mana Whenua Group.
19.Consequently, Mr Hall is ineligible.
[18]As to the tikanga aspects, the Selection Body submits:
28.The Applicant’s evidence is that there is a self-determinative element to whakapapa. As Māori come from a variety of rohe (areas), iwi, and hapū, it is up to the individual to determine which whakapapa they will follow. Furthermore, it is inappropriate for an individual to purport to determine another’s whakapapa.
29.The First Respondent’s evidence confirms:
a.Māori cannot deny their whakapapa;
b.It is up to an individual to confirm their whakapapa; and
c.It is not for people to interpret another’s whakapapa.
30.In their consideration of Mr Hall’s application, the Selection Body considered the Whānau o Waipareira Trust website to be a public confirmation of his whakapapa. As discussed by Ms Wilson, the Selection Body considered Mr Hall’s public declaration of his whakapapa to be a “clear indication” of being “in” a Mana Whenua Group.
5 Merriam-Webster Online Dictionary.
6 The New Shorter Oxford English Dictionary, Fourth Edition.
Discussion
[19] I accept the submissions of both parties that the key issue is whether Mr Hall is ineligible to be appointed as a mataawaka member of the Board because he is “in” a mana whenua group, namely Ngāti Whātua.
[20] As the Selection Body submits, the interpretation of the definition of mataawaka is to be ascertained from its text and in the light of the purpose of the Act and the context of the definition.7 In this case, it is the purpose and context in which Parliament used the word “in” which is authoritative rather than the ordinary meaning as recorded in dictionaries.
[21]Section 3 of the Act sets out its purpose. It includes:
(f) to establish arrangements to promote issues of significance for mana whenua groups and mataawaka for Tamaki Makaurau.
[22] Similarly, and as set out at [4] above, s 81 of the Act provides that the primary purpose of the Board is to assist the Auckland Council by promoting issues of significance for mana whenua groups and mataawaka of Tamaki Makaurau.
[23] In her affidavit of 13 September 2024, Lady Tureiti Moxon, Chair of the National Urban Māori Authority (NUMA), discusses the positions of mataawaka (also known as “urban Māori”) and mana whenua groups:
7.One of the fundamental issues with urban Māori is being disconnected from their hapu and iwi (and whenua) which are often a physically long distance from where they are living and working (i.e. Auckland). As leaders we embrace our support for this very large portion of the Māori population.
8.Mataawaka, who can be described as being urban Māori, are, specifically, Māori who live in Tamaki Makaurau and are not in a mana whenua group. The mana whenua groups in Auckland are, as I understand, made up of 19 iwi/hapū groups who have Mana Whenua within the Auckland Council City boundaries.
9.In 2010, then with the impending advent of the Independent Māori Statutory Board (IMSB), it was agreed by the Rangatira involved in the establishment of the IMSB, that there would be two of the nine seats available on the IMSB for Mataawaka Māori members.
7 Legislation Act 2019, s 10(1).
10.It was always accepted that Mana Whenua representatives on the IMSB were the backbone of the IMSB, given their ahi kaa roa over the whenua (of Tāmaki Makaurau), but then with two Mataawaka seats to be made available to Mataawaka Rangatira. This recognizes and acknowledges that the significantly greater majority of Māori residing in Tāmaki Makaurau, were Mataawaka.
11.There are over 200,000 Māori residing in Tāmaki Makaurau. I estimate 80% of Māori in Tāmaki Makaurau are Mataawaka and therefore they are a very significant portion of the Māori population in the city. Representation of Mataawaka on the IMSB for Auckland City Council is very important. All the more so because Mataawaka have only two of the nine seats on the IMSB.
12.The complimentary roles that Mana Whenua and Mataawaka Rangatira have working together enhances all tangata whenua residing in Tāmaki Makaurau. It is imperative that the Mataawaka Rangatira on the IMSB are aware of all issues facing urban Māori and therefore “being in” a Mataawaka organization is an advantage for the IMSB.
[24] Lady Moxon deposes that when Mr Hall was appointed as Chairman of the Waipareira Trust he was also appointed to the board of NUMA. In her view, Mr Hall is in a mataawaka iwi, and:
15. I should say at this point, the difference between Mataawaka and a Mana Whenua group, is that, NUMA believes Mana Whenua advocate for Mana Whenua Whanau and that Mataawaka will advocate for Mataawaka Whanau.
[25] I accept Lady Moxon’s evidence. In my view, it is clear that the reason why the Act distinguishes between mataawaka and mana whenua groups is so that the interests of both will be advocated and advanced through and on the Board. That is the purpose and the context in which the stipulation “not in a mana whenua group” must be read.
[26] I consider the evidence put before the Court on the tikanga of whakapapa supports my interpretation of the part-definition. I am grateful for the learned and thoughtful discourses on tikanga, which are contained in the many affidavits filed by the parties. I particularly acknowledge Mr Hone Sadler and Dr Korohere Ngāpō in this regard.
[27] While the parties differ on a number of elements of tikanga, they are agreed on several key points. Relevantly, they agree that, while Māori cannot deny their
whakapapa, it is the prerogative of the individual to confirm that whakapapa. As such, while an individual may be able to trace their lineage to multiple rohe, hapū, or iwi, they are not obligated to engage or affiliate with those groups, should they choose not to.
[28] In my view, if a candidate for appointment as a mataawaka representative has an ancestral connection to a mana whenua group (they can whakapapa to the mana whenua group), but their connection is no more than that, in the sense that there is no conscious affiliation with the mana whenua group, then, for the purposes of the Act, they are not “in” the mana whenua group. It might well be said they are “of” the mana whenua group but not “in” the mana whenua group. Such a person will be eligible to be considered for appointment as a mataawaka representative.
[29] Conversely, if a candidate for such appointment has whakapapa to, and identifies or affiliates with, a mana whenua group, then they are “in” the mana whenua group for the purposes of the Act and they are ineligible to be a mataawaka representative.
[30] If there is doubt in a particular case, then the Selection Body must take reasonable steps to resolve the doubt. It might well be that tikanga will be operative in this process, but that is not for me to prescribe.
[31] Of course, whether an eligible candidate for a mataawaka seat on the Board will be appointed by the Selection Body will depend in large part on the views of mataawaka which must be taken into account.8
[32] It follows that the Selection Body was wrong in law to conclude that Mr Hall was ineligible to be considered for appointment as a mataawaka member of the Board solely because the Waipareira Trust’s website gave part of Mr Hall’s whakapapa as Ngāti Whātua.
[33] I accept that Mr Hall did not help his situation by not responding directly to Ms Stones’s queries about his whakapapa. But, given the Selection Body’s position
8 Local Government (Auckland Council) Act 2009, s 6(2)(c).
that any acknowledged ancestral linkage to a mana whenua group is disqualifying, that does not matter in administrative law terms.
[34] Mr Hall’s application for appointment as a mataawaka member, including the many references which accompanied it, and the reply he did give to Ms Stones, provided the Selection Body with ample evidence of his status as mataawaka and that, despite the ancestral connection to Ngāti Whātua, he was not in a mana whenua group.
[35] I do not need to address Mr Hall’s criticisms of the procedures adopted by the Selection Body in relation to the successful candidates. They were downstream of his exclusion as a candidate.
Remedy
[36]In his statement of claim, Mr Hall seeks:
(a)An order quashing the Decision;
(b)An order requiring the First Respondent to rehold the election of the mataawaka;
(c)An order mandamus or such similar order that the First Respondent is directed to carry out its statutory duty by direction of this Honourable Court;
(d)Such or any order that this Honourable Court may deem as in the interests of justice;
(e)Costs.
[37]However, in his written submissions to me the relief sought is expressed:
(a)A declaration that the Selection Body failed to carry out its statutory duty for the appointment of mataawaka.
(b)A declaration that a mataawaka candidate with whakapapa to mana whenua is eligible for consideration for appointment as a mataawaka representative.
(c)A declaration that for the purpose of the Local Government (Auckland Council) act 2009 a person who is a member of a mataawaka group and who has a connection to mana whenua is not necessarily make that person is an active member of a mana whenua group.
(d)That an applicant for appointment as a mataawaka representative shall produce evidence of the views of mataawaka regarding their appointment as a mataawaka representative.
(e)A declaration that Mr Henare has failed to produce evidence of mataawaka support.
(f)An Order quashing the decisions of the Selection Body appointing mataawaka representatives.
(g)An Order that the First Respondent is directed to carry out its statutory duty in accordance with directions of This Honourable Court.
(h)An Order requiring the First Respondent to recommence the process for the selection of mataawaka.
[38] Relief on a successful application for judicial review is discretionary. In this case, I must take the following factors into account:
(a)Mr Kake and Mr Henare are the current mataawaka members of the Board. They are not parties to this proceeding and no relief has been sought against them.9
(b)The wrong that has been done to Mr Hall is not that he was deprived of a seat on the Board but that his candidacy was not evaluated by the Selection Body against the candidacies of Mr Kake and Mr Henare.
(c)It is over two years since the unlawful decision to exclude Mr Hall as a candidate. Mr Kake and Mr Henare have acted as mataawaka representatives since then. The term of appointment is three years. I am advised that preparations for the next round of appointments, to take effect in October of this year, are already in train.
(d)If I quash the Selection Body’s decision to exclude Mr Hall as a candidate and quash the appointments of Messrs Kake and Henare, while also directing the Selection Body to start the appointment process afresh, then:
9 I disregard as irrelevant the sought relief which I quote at [35](e).
(i)the Board will be deprived of mataawaka representatives for most, if not all, of the remainder of the current term; and
(ii)there will probably be an overlap with the appointment process for the 2025—2028 term.
Result
[39]I find in favour of Mr Hall.
[40]I make the following declarations:
(a)The Selection Body’s decision that Mr Hall was not eligible for appointment to the Board as a mataawaka representative was unlawful for the reasons I have given.
(b)Mr Hall is eligible to be considered by the Selection Body for appointment to the Board as a mataawaka representative.
[41] I decline to make orders quashing the current appointments of Mr Kake and Mr Henare as mataawaka representatives and requiring the Selection Body to commence a further selection process for the 2022—2025 term.
Costs
[42]Counsel were agreed that 2B costs are appropriate.
[43] I award costs to Mr Hall to be calculated on a 2B basis to include second counsel.
Brewer J
Solicitors:
Hickey Law (Auckland) for Applicant
Holm Majurey (Auckland) for First Respondent
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