Counsel: B W F Brown QC and K S Feint for Appellant
D B Collins QC Solicitor-General, V L Hardy and C R W Linkhorn for Second Respondent
T H Bennion for Third Respondent

Judgment: 19 May 2011

JUDGMENT OF THE COURT

AThe appeal is allowed and the determination of Judge Clark is quashed.
BThe matter is remitted to the Waitangi Tribunal with the direction that it must proceed urgently to hear the claim.
CThe second respondent must pay the appellant costs of $25,000 together with reasonable disbursements to be fixed if necessary by the Registrar. Costs in the Court of Appeal and High Court are to be fixed by those Courts.

REASONS

Para No

Elias CJ, Blanchard, Tipping and McGrath JJ [1]
William Young J [112]

ELIAS CJ, BLANCHARD, TIPPING AND McGRATH JJ

(Given by Elias CJ and McGrath J)

Table of Contents
Introduction................................................................................................ [1]
Background................................................................................................. [7]
The decision of Judge Clark.................................................................... [24]
High Court judgment.............................................................................. [37]
Court of Appeal judgment....................................................................... [44]
Statutory provisions................................................................................. [48]
The statutory history............................................................................... [56]
The obligation of the Tribunal to inquire into claims........................... [78]
The terms of the 2004 report................................................................... [94]
Ongoing negotiations between Te Whakarau and the Crown............. [96]
The urgent hearing should have been granted.................................... [100]

Introduction

The appellant, Mr Haronga, sought an urgent hearing of his July 2008 claim to the Waitangi Tribunal for a recommendation that the Crown return to the owners of Mangatu Blocks Incorporated,[1] of which he is Chairman, 8,626 acres forming part of the Mangatu State Forest. The Waitangi Tribunal had already held in its 2004 report in relation to Turanganui a Kiwa, Turanga Tangata Turanga Whenua, that the land claimed had been acquired by the Crown in 1961 from Mangatu Incorporation in breach of the principles of the Treaty of Waitangi.[2] Although a claim to restore the land to Mangatu Incorporation under the compulsory jurisdiction of the Tribunal had been part of the claims included in the district-wide hearings in relation to Turanganui a Kiwa,[3] the Tribunal made no specific recommendations for remedy in its 2004 report, leaving it to Crown and claimants to negotiate a district-wide settlement of all claims but reserving leave to apply further to the Tribunal if necessary.[4]
[1] Referred to throughout as Mangatu Incorporation.
[2]Waitangi Tribunal Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa claims (WAI 814, 2004) at [15.5.4].
[3] The region of Poverty Bay.
[4] See the letter of transmittal and [16.5].
In the negotiations, conducted under the umbrella of Turanga Manu Whiriwhiri for all claimants of the district,…

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 Haronga v Waitangi Tribunal

Details

AGLC: Haronga v Waitangi Tribunal [2011] NZSC 53
Case: [2011] NZSC 53
Decision Date: 19 May 2011

CaseChat Overview and Summary

In this case, the Supreme Court of New Zealand was called upon to determine the appeal of Mr Haronga, who sought an urgent hearing of his claim to the Waitangi Tribunal for a recommendation that the Crown return to the owners of Mangatu Blocks Incorporated, of which he is Chairman, 8,626 acres forming part of the Mangatu State Forest. The Waitangi Tribunal had previously found that the land claimed had been acquired by the Crown in 1961 from Mangatu Incorporation in breach of the principles of the Treaty of Waitangi, but had not recommended return of the land to Mangatu Incorporation. Mr Haronga filed a further claim in July 2008 seeking return of the 1961 lands to Mangatu Incorporation under the compulsory resumption jurisdiction of the Tribunal. However, the application for an urgent remedies hearing was refused by Judge Clark, a Judge of the Maori Land Court appointed by the Deputy Chairperson of the Waitangi Tribunal as the Presiding Officer to deal with Mr Haronga's claim. Mr Haronga applied unsuccessfully for judicial review of the decision of Judge Clark in the High Court and, on appeal, in the Court of Appeal. The present appeal is brought from the decision of the Court of Appeal. In it, Mr Haronga challenges the lawfulness of the Tribunal's refusal to grant him an urgent hearing. The appeal raises important questions concerning the extent of the obligation of the Tribunal to conduct inquiries into claims submitted to it and the right of claimants to require completion of such inquiries in circumstances such as those faced by Mangatu Incorporation. The determination of these questions ultimately turns on the interpretation of the provisions of the Treaty of Waitangi Act and in particular the amendments to the statute in 1989. The Supreme Court held that the Waitangi Tribunal was obliged to determine the claim in Wai 1489 for an order under s 8HB(1)(a) of the Treaty of Waitangi Act. The Tribunal had a choice as to whether or not to grant the remedy sought and, if so, on what terms. But it had to make a choice. It was jurisdiction it could not decline. This conclusion turns on the terms and scheme of the legislation. The appeal is allowed and the determination of Judge Clark is quashed. The matter is remitted to the Waitangi Tribunal with the direction that it must proceed urgently to hear the claim. The second respondent must pay the appellant costs of $25,000 together with reasonable disbursements to be fixed if necessary by the Registrar. Costs in the Court of Appeal and High Court are to be fixed by those Courts.

Orders