Haronga v Waitangi Tribunal
[2010] NZCA 201
•19 May 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA73/2010
[2010] NZCA 201BETWEENALAN PAREKURA TOROHINA HARONGA JUNIOR
Appellant
ANDWAITANGI TRIBUNAL
First RespondentANDTHE ATTORNEY-GENERAL
Second RespondentANDTE WHAKARAU (FORMERLY TE POU A HAOKAI)
Third Respondent
Hearing:10 March 2010
Court:O'Regan, Arnold and Randerson JJ
Counsel:B W F Brown QC and K S Feint for Appellant
No appearance for First Respondent
V L Hardy and C Linkhorn for Second Respondent
T Bennion and F Khan for Third Respondent
M Doogan for Federation of Maori Authorities Inc as Intervener
Judgment:19 May 2010 at 10.30 am
JUDGMENT OF THE COURT
A The appeal is dismissed.
B There is no order for costs.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1] On 17 September 2009 the appellant, Mr Haronga, as Chairperson of the Proprietors of the Mangatu Blocks Incorporated (the Incorporation), applied to the Waitangi Tribunal for an urgent remedies hearing following the Tribunal’s 2004 Report on the Turanganui a Kiwa claims, entitled Turanga Tangata Turanga Whenua.[1] Mr Haronga wanted the opportunity to obtain a binding recommendation from the Tribunal under s 8HB(1) of the Treaty of Waitangi Act 1975 (the ToWA) that certain Crown forest land be transferred to the Incorporation.
[1]Waitangi Tribunal Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims (WAI 814, 2004).
[2] The Tribunal’s ability to make binding resumption orders under s 8HB(1) had its genesis in two important decisions of this Court, namely New Zealand Maori Council v Attorney-General[2] (the Lands case) and, more particularly, New Zealand Maori Council v Attorney-General[3] (the Forests case). Both gave rise to legislative amendments, including the introduction of s 8HB into the ToWA.
[2] New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA).
[3] New Zealand Maori Council v Attorney-General [1989] 2 NZLR 142 (CA).
[3] The statutory position is that under s 6(2) of the ToWA the Tribunal is obliged to inquire into every claim made to it under s 6(1), subject to certain limited exceptions. Sections 6(3) and 6(4) provide that, in relation to any well-founded claim, the Tribunal may recommend to the Crown that remedial action be taken, either in general or specific terms. In relation to Crown forest land, s 8HB provides that the Tribunal “may ... include in its recommendation under s 6(3) a recommendation that the land ... be returned to Maori ownership”. Under s 8HC, such a recommendation is an interim recommendation and may not be confirmed by the Tribunal until after a 90 day period has expired, at which time it becomes a final recommendation, but only if there has been no other resolution of the claim. Section 36(1) of the Crown Forests Assets Act 1989 (CFAA) requires the Crown to return Crown forest land to Maori ownership, and to pay compensation, where the Tribunal has made a final recommendation for the return to Maori of that land.
[4] By a decision dated 21 October 2009, Judge Clark rejected the appellant’s application for an urgent remedies hearing. The appellant then brought an application for judicial review of Judge Clark’s decision. Clifford J declined that application.[4] Mr Haronga now appeals that decision.
Background
[4] Haronga v Waitangi Tribunal HC Wellington CIV-2009-485-2277, 23 December 2009.
[5] The background to the proceeding is set out in Clifford J’s judgment,[5] from which the following account is drawn. We will not repeat all that Clifford J said, but will focus on the essential points.
[5] At [2] – [34].
[6] In 1881 the Mangatu block in Turanganui a Kiwa (Poverty Bay) came before the Native Land Court for title determination. The block comprised some 160,300 acres. The Court awarded around 100,000 acres of the block (the Mangatu No 1 block) to “a group represented by Wi Pere ... made up of members of Ngati Wahia and Ngariki descent, and of people who affiliate to both groups”.[6] Wi Pere obtained a Native Land Court certificate of title for the Mangatu No 1 block, which named 12 individuals on the understanding that they would establish a trust on behalf of 179 named individuals.
[6] Turanga Tangata Turanga Whenua at [14.1].
[7] Some questions subsequently arose about the validity of the trust deed. As a consequence, the Mangatu No 1 Empowering Act 1893 was passed. This established the Incorporation, and vested in it the ownership of the Mangatu No 1 block. After a rehearing in 1921, the Native Land Court adjusted the shareholding in the Incorporation to include members of Te Whanau a Taupara as owners.
[8] The Incorporation is now a Maori incorporation under Te Ture Whenua Maori Act 1993. There are approximately 5,000 shareholders, of Ngati Wahia, Ngariki/Ngaariki Kaiputahi and Te Whanau a Taupara descent. However, not all members of the relevant hapu are shareholders of the Incorporation.
[9] By the early 1960s, following investigations and public consultation carried on from the mid 1950s, the Crown decided that it would establish an afforestation scheme in the upper Waipaoa River catchment to protect land that was susceptible to erosion. For that purpose, it wanted to acquire part of the Mangatu No 1 block. The owners were most reluctant to sell, but eventually the Crown purchased around 8,600 acres of the block from them (the 1961 land). The Crown then established the Mangatu State Forest, about a quarter of which comprises the 1961 land.
[10] In 1992 Mr Ruru commenced a claim, Wai 274, in the Waitangi Tribunal on behalf of himself, the members of Te Aitanga a Mahaki and the proprietors of the Mangatu blocks. The claim was based on the way the Crown had acquired the 1961 land. In particular, it was alleged that although the 1961 land was acquired for erosion control purposes, the Crown had in fact used it for commercial forestry. The claimants sought a recommendation that the 1961 land be returned to the Incorporation.
[11] However, the claim was soon broadened into a claim about the wrongful disposition of all the traditional lands of Te Aitanga a Mahaki and was linked to similar claims filed on behalf of Rongowhakaata and Ngai Tamanuhiri. These claims became Wai 283 and effectively incorporated Wai 274. Then, in 2001, Mr Ruru filed an amended statement of claim in Wai 274 and Wai 283 which broadened the claim still further. This amended claim did not seek the return of the Mangatu No 1 block to the Incorporation but rather sought the return of the Mangatu State Forest to Te Aitanga a Mahaki.
[12] From 2000 until 2004 the relevant panel of the Waitangi Tribunal, the Turanga Tribunal, inquired into the various Turanganui a Kiwa claims and produced its 2004 Report. The Turanga Tribunal dealt with Wai 274 as originally filed in Chapter 15 of its Report, under the heading “Mangatu Afforestation Claim”.
[13] Among the Treaty breaches that the Turanga Tribunal found in relation to the Turanganui a Kiwa claims, there are two sets of findings that are relevant to the Mangatu block. First, the Tribunal said that the Native Land Court’s title determination in 1881 was “clearly unsafe”.[7] In particular, the Court had wrongly excluded Ngariki Kaiputahi from the ownership group, describing them, inaccurately, as “conquered”. Subsequent Court and Crown processes did not remedy the problem. Second, the Tribunal said that the Crown had failed to meet the required Treaty standard in its negotiations with the Incorporation over the acquisition of the 1961 land.[8] In effect, the Crown had forced the unwilling owners to sell, and had significantly misled them in the process.
[7] Turanga Tangata Turanga Whenua at [14.8].
[8] Ibid at [15.5.4].
[14] The Turanga Tribunal urged the Crown and the claimant groups to negotiate the settlement of all the Turanganui a Kiwa claims in a single district-wide negotiation process. The Tribunal indicated that it considered that the various claims fell naturally into three clusters, namely:
(a) Te Aitanga a Mahaki cluster;
(b) Rongawhakaata; and
(c) Ngai Tamanuhiri.
[15] Settlement negotiations commenced in 2007, with an entity called Turanga Manu Whiriwhiri representing the three iwi groupings of Turanganui a Kiwa (ie, Te Whakarau,[9] Ngai Tamanuhiri and Rongowhakaata). On 29 August 2008 a district-wide Agreement in Principle for settlement of the Turanganui a Kiwa claims was signed. Importantly for present purposes, the Agreement states that Te Whakarau will be offered the right to purchase the Mangatu State Forest, including the 1961 land.
[9]The third respondent, formerly named Te Pou a Haokai. This grouping comprises Te Aitanga a Mahaki, Te Whanau a Kai, Ngariki/Ngaariki Kaiputahi, Te Whanau a Rangiwhakataetaea and Te Whanau a Wi Pere.
[16] On 31 July 2008 Mr Haronga, a direct descendant Wi Pere, filed an application for an urgent remedies hearing on behalf of the Incorporation (Wai 1489). The claim, which is essentially the same as the original Wai 274 claim, seeks the return of the 1961 land to the Incorporation, together with accumulated licence fees and compensation. That application was refused by Judge Coxhead on 28 August 2008. Mr Haronga then made a further application for an urgent remedies hearing on 17 September 2009, against the background that a Deed of Settlement between the Crown and the claimant groups was likely to be entered into in December 2009.[10] This application is the subject of the present appeal.
Waitangi Tribunal decision
[10]The Deed of Settlement has not yet been entered into. We were advised that this is likely to occur in mid-2010.
[17] In addressing the 2009 application, Judge Clark first referred to a memorandum issued by the Deputy Chairperson of the Waitangi Tribunal, Judge Wainwright, on 6 September 2007. This memorandum was developed after submissions by counsel for the Crown and claimants. In it Judge Wainwright set out factors that the Waitangi Tribunal would take into account when considering whether to hold a remedies hearing. Given their importance, we set them out in full:
1.I now set out the factors that the Tribunal will take into account in considering an application for a claim that has been reported upon to proceed now to a remedies hearing. Mainly, the factors were suggested in the submissions filed. They are listed in no particular order. The relative weight to be applied to them will be at the discretion of the judge or panel determining the matter.
2.I do not wish to make any general statement about the priority to be accorded to applications for remedies hearing vis a vis other claims or applications before the Tribunal. I do not envisage that the volume of resources to be attributed to remedies hearings will be such as to preclude the Tribunal continuing with its scheduled programme of district inquiries and related work, or its inquiry into urgent applications about contemporary issues as and when they arise. Thus, for now, no general statement about priority is required. This is similar to applications for urgent hearings. Urgent hearings proceed at the discretion of the presiding officer to whom consideration is delegated, where that presiding officer is satisfied that the criteria are met.
3.The Tribunal will not entertain an application for a remedies hearing unless the applicant(s) has/have a report of the Tribunal in which claims have been determined to be well-founded, and the claimants deserving of a remedy.
4.If claimants apply to the Tribunal on that basis, it will consider the application before it in the light of any or all of the following factors where they are relevant:
(a)Whether the applicants really represent those whom they say they represent, and can demonstrate this to be so;
(b)The size of the group the applicants represent, and whether it is of a dimension and composition that make it suitable to receive the remedies it is seeking, or which the Tribunal may wish to recommend;
(c)Whether applicants’ claims relate to any land being sought by way of remedy;
(d)Whether the applicants have already made reasonable attempts, but have failed, to
(i)be accepted as a group mandated for settlement negotiations; and/or
(ii)agree upon the basis for a settlement with the Crown;
(e)Whether the Crown’s conduct in relation to the applicant group has been inconsistent with its conduct in relation to comparable claimant groups with which it has previously had negotiations, or dealings leading up to negotiations, and/or with which it has reached settlement;
(f)Whether the matters said to be standing in the way of achieving settlement appear to be incapable of resolution by further dialogue, or by resort to an alternative means of resolving the difference(s), such as mediation;
(g)Whether a claimant group’s conduct has materially contributed to the conduct by the Crown that is the subject of complaint;
(h)When the application for a remedies hearing was filed in relation to other applications also seeking remedies hearings;
(i)Whether the remedies hearing sought from the Tribunal is likely to make a positive contribution towards
(i)the applicant group being admitted to settlement negotiations with the Crown; and or
(ii)the parties agreeing on a basis for settlement.
5.As with applications for urgent hearings, the Tribunal will not necessarily hear parties viva voce on their applications for remedies hearings. It may suffice to call for submissions, and make a determination on the papers.
6.For the avoidance of doubt, no different or separate set of criteria will be applied to the granting of a remedies hearing where the remedies sought include binding recommendations relating to particular land.
7.I do not expect that the factors listed here will prove to be definitive or exhaustive. A tribunal may be persuaded that another factor is important; it is always open to counsel to argue that, on the particular facts, other factors should be taken into account.
8.There are applications currently before the Tribunal seeking remedies hearings. Any party wishing to pursue any of them should now file a memorandum that argues the case for the Tribunal to proceed to a remedies hearing in terms of the factors outlined here (and by reference to any other material that counsel may consider to be compelling). The memorandum should contain such factual material as the Tribunal will need to apply the relevant factors to each case. Responses will be sought from the Crown. In relation to each application, the Tribunal will then either
(a)make a decision as to whether to grant a remedies hearing; or
(b)schedule an interlocutory hearing to allow further presentation of relevant facts and argument.
As Judge Clark noted, Judge Wainwright emphasised that the Tribunal retained a discretion to address each application on its own merits.[11]
[11] At [20].
[18] Judge Clark also referred to the Tribunal’s criteria for consideration when urgency is sought, which were published in a Practice Note.[12] The Practice Note relevantly provides:
[12]Waitangi Tribunal “Guide to the Practice and Procedure of the Waitangi Tribunal” (August 2007).
2.5 Urgent inquiries
Claimants or the Crown may apply to the Tribunal for an urgent inquiry and report into a claim or a group of claims, or into an aspect of a claim or a group of claims. The Tribunal will grant urgency only in exceptional cases and only after satisfying itself that adequate grounds have been made out.
(1) Grounds for urgency
In deciding an application for urgency, the Tribunal has regard to a number of factors. Of particular importance are whether:
ØThe claimants can demonstrate that they are suffering, or are likely to suffer, significant and irreversible prejudice as a result of current or pending Crown actions or policies;
ØThere is no alternative remedy that, in the circumstances, it would be reasonable for the complainants to exercise; and
ØThe claimants are ready to proceed urgently to a hearing.
Other factors that will be considered by the Tribunal include whether:
Øthe claim or claims challenge an important current or pending Crown action or policy;
Øan injunction has been issued by the courts on the basis that the claim or claims for which urgency has been sought have been submitted to the Tribunal; and
Øany other grounds justifying urgency have been made out.
[19] Having set out the arguments of the parties, Judge Clark then gave his assessment. He began by acknowledging that the application was “a very finely balanced and difficult application to decide.”[13] The Judge described his approach as follows:[14]
Ultimately in arriving at the decision I have made I have relied upon the guideline comments made by the Deputy Chairperson in her remedies memorandum of 6 September 2007. I take particular notice of the fact that the Deputy Chairperson when setting out those criteria indicated that they were not definitive or exhaustive, that the decision is at the discretion of the Judge determining the matter and ultimately that the Tribunal should at all times continue to have the discretion to address each situation on its own merits and its own facts.
(Emphasis added.)
[13] At [50].
[14] At [51].
[20] In declining the application, the Judge emphasised three features of the case:
(a)The Tribunal had considered and made recommendations as to settlement.
(b)Negotiations with the Crown have not broken down. Rather, they are moving towards the execution of a Deed of Settlement.
(c)The shareholders in the Incorporation will not be denied a remedy as all will be entitled to share in the benefits of any settlement achieved by Te Whakarau, including in particular the purchase of the Mangatu State Forest (which includes the 1961 land).
[21] The Judge concluded his decision by saying:
59.[Te Whakarau] have a mandate to negotiate the claims of Te Aitanga-ā-Mahaki and others. That mandate initially included a mandate to negotiate the Mangatū forestry claim. Those negotiations are now well advanced and the Tribunal accepts that it would be disruptive, particularly to [Te Whakarau] if they were now forced into an urgent remedies hearing. In my view the Tribunal should not be slow to intervene in cases that warrant it. Mere arguments about disruption to process, scarce resources and diversion of time and attention will not succeed if a meritorious case requires the intervention of the Tribunal.
60.That would undoubtedly have been the case if the Tribunal was faced with a situation in which the Mangatū Incorporation were the only group interested in the return of the Mangatū No 1 Block. If there wasn’t the complication of an offer to [Te Whakarau], their application for an urgent remedies hearing would be very strong.
61.Unfortunately for them there is an offer to [Te Whakarau]. Whilst I am sympathetic to the disappointment that the Mangatū Incorporation is experiencing, when I consider the ultimate position of their shareholders I do not consider the situation to be as serious as to warrant the intervention of the Tribunal. I say that because those shareholders’ wider interests are being negotiated by [Te Whakarau]. Those interests include the return of the Mangatū State Forest including the Mangatū 1 Block. All of the shareholders will be entitled to enjoy the benefits of that settlement.
High Court decision
[22] At the outset of his substantive discussion, Clifford J dealt with the issue of mandate. He noted that the Incorporation’s claim in respect of the 1961 land was included within the mandate of Te Whakarau and was covered in the settlement negotiations with the Crown. Ms Feint had argued that the Incorporation had now withdrawn the mandate but the Judge did not accept that.[15] He did, however, accept that the position might have been different if the mandate had been effectively withdrawn.[16]
[15]At [82].
[16]At [119] – [121].
[23] Clifford J considered that there were two central issues to be considered in the proceedings.[17] The first was whether the Tribunal’s “circuit breaker policy”[18] was lawful where a claimant seeks a binding recommendation under s 8HB of ToWA. On the assumption that the policy was lawful, the second issue was whether the application of the circuit breaker policy in these particular circumstances was wrong in law.
[17]At [96].
[18]By this the Judge meant the general policy of holding remedies hearings only after settlement discussions had broken down, so that the Tribunal acted as a “circuit breaker”.
[24] The Judge accepted that it would be wrong in law for the Tribunal to decline to hold remedies hearings in all circumstances unless the settlement process had broken down. However, in the present case, the Tribunal had considered the claim, found it to be well founded and declined to make any recommendations. In those circumstances, the Tribunal was not required to hold an urgent remedies hearing to determine once again whether it would exercise its discretion to make a recommendation.[19] The Judge said:[20]
In my view, the fact that the Tribunal had power under s 8HB to make a binding recommendation does not in itself change the nature of the Tribunal’s function. Applications to be heard are made under s 6. Here, the Tribunal heard the claim as part of its wider inquiry. The Tribunal then has a discretion to make a recommendation – either under s 6(3) or under s 8HB. It chose not to do so. If a Tribunal decides to make a recommendation under s 8HB, that recommendation (when made final) is binding in terms of the CFAA. In essence, the Crown’s discretion whether to comply with the recommendation is removed. That, in my judgment, does not alter substantively the Tribunal’s role. There is nothing in the 1989 amendments to the ToWA indicating that the Tribunal’s power to issue (what become) binding recommendations in relation to Crown forest land sits outside or is to take precedence over the general claims process. The only difference relates to the current status of the land (comprising Crown forest land, rather than other public land) – there is no difference in terms of the underlying claims and/or right to redress.
[19]At [109]. But see also [113]–[114], where Clifford J considered that generally the Tribunal’s policy was justifiable and consistent with the district-wide model for determining claims.
[20]At [110].
[25] Clifford J upheld Judge Clark’s decision, holding that he had taken account of all relevant factors and had not breached natural justice.[21]
Basis of appeal
[21]At [117].
[26] There are two different perspectives that might be taken to the present case. The first is that it raises an essentially procedural issue, involving case management and the right of the Waitangi Tribunal to determine its own hearing priorities. The second is that it raises an important substantive issue, namely the right of successful claimants to seek a particular form of remedy in a meaningful way.
(a) Appellant’s submissions
[27] The appellant takes the latter view. Mr Brown QC, who did not appear below, argued that the CFAA created a special regime when it amended the ToWA in 1989 by introducing s 8HB.[22] In his written submissions, Mr Brown argued that the appellant was entitled to elect to apply for a resumption order and, if he did, the Tribunal was required to determine his claim. The Tribunal’s deference to the settlement negotiations constituted an “unlawful abdication of [the Tribunal’s] statutory function to determine claims to Crown forest land”. In effect, he said, the Tribunal had, as a result of the approach it adopted, closed off the possibility of compensation through binding recommendations under s 8HB. Mr Brown submitted that Clifford J was wrong to conclude that the Tribunal’s role under s 8HB is no different to its general claims jurisdiction.[23]
[22]CFAA, s 40.
[23] See [110], quoted at [24] above.
[28] Mr Brown noted that the Tribunal has never made a recommendation under s 8HB for the return of Crown forest land and has only once made a recommendation in relation to land owned by a state owned enterprise (SOE).[24] As a result of the Tribunal’s approach to its resumption powers, forest claimants could not “get in the door”. The Tribunal’s approach was, he argued, unlawful, and the Tribunal was required to determine claims such as those made by the appellant.
[24] See the State Owned Enterprises Act 1986, s 27B and ToWA, ss 8A and 8B.
[29] Further, Mr Brown argued that Clifford J was wrong to find that the Tribunal had already considered whether to exercise its powers in relation to remedies (including under s 8HB). Rather, the Tribunal adopted the same course as it has in the past of not considering remedies and inviting the Crown and the claimants to negotiate a settlement for themselves, with leave to return to the Tribunal if necessary. The Tribunal did not specifically turn its mind to the question of resumption.
[30] Although Mr Brown acknowledged that the question of whether urgency should be granted was different from the question of whether the appellant was entitled to have a remedies hearing, he said that in exercising its discretion as to timing, the Tribunal had to take account of the background reality. In the present case, if urgency was not granted, the appellant’s entitlement to a remedies hearing would be “gazumped” given the stage the settlement negotiations had reached. The right to a remedies hearing in this type of case was a special right and a priority right.
[31] Finally, Mr Brown argued that the Judge had erred in finding that the settlement negotiations between the Crown and Te Whakarau (including Te Whakarau’s mandate) were relevant to the Tribunal’s determination of the appellant’s application for an urgent remedies hearing. Mr Brown submitted that if urgency was not granted, the effect would be that the appellant’s resumption application would be rendered nugatory by the impending Turanganui a Kiwa settlement. He noted that Clifford J had accepted that this would be the consequence.[25]
(b) Respondents’ submissions
[25] At [95].
[32] The first respondent, the Waitangi Tribunal, abides the decision of the Court.
[33] On behalf of the second respondent, the Attorney-General, Ms Hardy supported Clifford J’s decision. She submitted that Judge Clark was entitled to consider the broader context of the appellant’s application when determining it, including the settlement negotiations. In the exercise of his discretion, the Judge was entitled to refuse the application. Ms Hardy argued that the appellant’s approach, if successful, would “disenfranchise those Turanga people for whom [the 1961 land] is ancestral land but who for various reasons are not currently shareholders in the Mangatu Incorporation.”
[34] For the third respondent, Te Whakarau, Mr Bennion said that his client’s central function was “to negotiate with the Crown to obtain an offer by way of Deed of Settlement that can be put to a vote of all of the thousands of claimants that the members of Te Whakarau represent.” That offer is almost completed and, when put, may be accepted or rejected by the claimants. Mr Bennion noted that there were a number of Treaty breaches in relation to the Mangatu block at different time periods and that these various breaches created the potential for the original Mangatu community of owners to undergo change over time. Any settlement which did not deal with the descendants of all the traditional hapu interested in the Mangatu block would, he submitted, be defective. Te Whakarau took a broad-based approach to settlement, although ultimately the claimant groups would be able to determine among themselves how the settlement benefits should be apportioned.
[35] By contrast, Mr Bennion submitted, the appellant’s claim for the return of the Mangatu No 1 block to the Incorporation was narrow in scope. It would settle only the Treaty breaches in relation to the 1961 land and would be based on a limited “snapshot” of the traditional community of owners.
[36] Otherwise, Mr Bennion supported Ms Hardy’s submissions. He emphasised that Te Whakarau has consulted with all the claimants and gained authority to settle all claims relating to the Mangatu block, including that relating to the 1961 land. That authority had not been rescinded or questioned by the Incorporation. Further, he drew attention to the prejudice to other claimants if the Incorporation was successful in obtaining an urgent remedies hearing as inevitably many would wish to participate in that process.
(c) Intervener’s submissions
[37] The Federation of Maori Authorities Inc (FOMA) was given leave to intervene. Through its counsel, Mr Doogan, FOMA essentially supported the appellant’s position. Mr Doogan submitted that Judge Wainwright was wrong to say in her memorandum that no different or separate set of criteria would be applied where the remedies sought include binding recommendations.[26] He submitted that in adopting this view the Tribunal had unlawfully restricted or fettered its statutory powers in relation to Crown forest land.
Discussion
[26] At [6] of Judge Wainwright’s memorandum; see [17] above.
[38] As this Court noted in Attorney-General v Mair, there are two paths to Treaty settlements.[27] The first is for the Crown, through the Office of Treaty Settlements, to negotiate directly with claimant groups. This essentially political process results in a deed of settlement and legislation to give effect to it. The second is through the statutory procedures in ToWA, under which the Tribunal must inquire into claims submitted to it, and may recommend that the Crown take remedial action.[28] Such recommendations are not ordinarily binding on the Crown, but may be in relation to certain types of land, including Crown forest land. Often the two processes are combined, in the sense that the Tribunal produces a report on the question of breach, after which, if breaches are established, the Crown enters settlement negotiations with the affected claimants, as occurred in the present case.
[27] Attorney-General v Mair [2009] NZCA 625 at [5] – [7].
[28] ToWA, s 6(2).
[39] As we have already said, on one level this case can be seen simply as one involving a decision by a tribunal as to the prioritisation of its workload. As this Court said in Mair, it is unlikely that an appellate court will second-guess a tribunal’s decision as to its priorities, given that the court will know little or nothing of the tribunal’s overall workload, resources or its competing priorities.[29]
[29] At [56].
[40] However, we agree with Mr Brown that there is more to this case than that, as Judge Clark recognised when he observed that arguments about disruption to process, scarcity of resources and diversion of time and attention would not stand in the way if there was a meritorious case requiring the intervention of the Tribunal.[30] But the key issue is whether Mr Brown is right in his submission that, in a case such as this, the Tribunal must facilitate an urgent remedies hearing.
[30] At [59]; see [21] above.
[41] We have already briefly summarised the relevant remedies provisions.[31] Clifford J said that the introduction of s 8HB into the ToWA did not alter the Tribunal’s role substantively. He said that there was nothing to indicate that the Tribunal’s power to issue binding recommendations “sits outside or is to take precedence over the general claims process.”[32] Mr Brown submitted that this was wrong. He referred to Te Runanga o Muriwhenua Inc v Attorney-General where this Court said, in the context of the Tribunal’s power to make non-binding recommendations, that the Tribunal was not a court and had no power to determine issues of fact or law conclusively.[33] The Court went on to say that these observations were not directed at situations involving mandatory resumption orders, which did not arise in that case. Mr Brown also relied upon Baragwanath J’s separate judgment in Mair, where the Judge referred to the binding recommendatory regimes in relation to SOE and Crown forest land and said:[34]
The result is that the bundle of rights possessed by a claimant to Crown forest land with a sound case for the exercise of the judgment of the Tribunal is, or is very close to, a proprietary right that is justiciable before the Tribunal essentially as if it were a court.
[31] At [3] above.
[32] At [110]; see [23] above.
[33] Te Runanga o Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641 (CA) at 651–652.
[34] At [103].
[42] We agree with Clifford J that the introduction of the power to make binding recommendations did not change the Tribunal’s role substantively. As Ms Hardy submitted, when Parliament granted the Tribunal the power to make binding recommendations in relation to SOE and Crown forest land it left in place the Tribunal’s mode of operation as a commission of inquiry with the power to make recommendations. Section 6(3) of the ToWA remains as the central remedies provision. Under it, the Tribunal has a general discretion as to what, if any, remedial recommendations it makes, even though under s 6(2) it (generally) has an obligation to investigate claims made under s 6(1). Further, the binding aspect of resumption recommendations comes into play only if the Crown and the claimants are unable to agree a means of implementing the Tribunal’s interim recommendations, which is a statutory recognition of the important role of settlement negotiations.
[43] A claim to the return of Crown forest land may arise as a discrete claim or as an element of a broader claim. In the latter context, it seems to us unreal to suggest that the Tribunal’s role changes as it moves from considering aspects of a claim that might result in non-binding recommendations to considering aspects that might result in a binding recommendation. As part of its general remedies discretion, the Tribunal has the power to make binding recommendations in various contexts, including in relation to Crown forest land. Clearly that power is not one to be exercised lightly, but neither is the Tribunal’s power to make any other form of recommendation.
[44] We accept that the Tribunal is not entitled to adopt a policy that it will never consider whether or not it will conduct a remedies hearing for a resumption order. Such a policy would render the legislatively established resumption regime ineffectual. But that is not the effect of the Judge Wainwright’s memorandum.[35] She took care to emphasise that:
(a)The weight to be attached to the factors identified in her memorandum was for the judge or panel making the determination.[36]
(b)The listed factors were not definitive or exhaustive. Rather, parties were free to argue that other factors should be taken into account.[37]
[35] See [17] above.
[36] At [1].
[37] At [7].
In short, each application is to be addressed on its particular merits and the relevant judge or panel retains the discretion whether or not to order a remedies hearing. The same is true in relation to the granting of urgency.
[45] This leads on to the next question, namely whether Judge Clark did consider the particular merits of the appellant’s application. In this context we acknowledge the importance of Mr Haronga’s evidence. He said that if the proposed settlement were to occur, the hapu rights represented through the Incorporation would be arbitrarily handed over to a broader iwi grouping, some of whom could not necessarily establish ancestral connections with the 1961 land.
[46] We consider that the Judge did turn his mind to the merits of the application. Importantly in this context, the Judge noted that the Incorporation’s shareholders would have a remedy in relation to the 1961 land because all are members of Te Whakarau and will be entitled to share in the benefits it obtains from any settlement, including the opportunity to purchase the Mangatu State Forest. In this context, the Judge noted that Te Whakarau had been given a mandate to negotiate a comprehensive settlement, including in relation to the 1961 land. Further, the Judge noted that there were other parties, represented by Te Whakarau, who had an interest in the Mangatu No 1 block besides the shareholders of the Incorporation. The interests of those other groups would be adversely affected if the block were returned to the Incorporation. In other words, the Judge balanced the particular interests of the appellant and the other shareholders of the Incorporation against the interests of the claimant groups as a whole. We consider that he was entitled to undertake such an assessment when considering the merits of the application. We agree with Mr Bennion’s submission that the appellant’s approach is based upon a limited snapshot of the position at a particular point in time. The Tribunal took a broader perspective, and was entitled to do so.
[47] It follows from what we have said that we consider, contrary to the appellant’s submissions, that Judge Clark was entitled to consider the state of the settlement negotiations in exercising his discretion. We accept that a blanket refusal to consider making resumption orders because broader settlement discussions are underway may be problematic. That is, an inflexible “circuit breaker only” approach to the granting of remedies hearings may be objectionable. But Judge Clark did not refuse to grant the appellant’s application simply because settlement discussions were underway. He did not take an inflexible or formalistic approach. Rather, the Judge delved more deeply, considering which groups were involved in the settlement negotiations, the prejudice to those with interests in the 1961 land if he granted the application, the mandate arrangements relevant to the settlement negotiations and the proposed remedies in relation to the affected land. In short, the Judge looked at the substance of what was happening in the settlement negotiations and exercised his discretion in the light of that.
[48] Further, we do not accept that Judge Clark was wrong to conclude that the Tribunal had turned its mind to settlement in the 2004 Report and was unlikely to change its settlement recommendations in the context of an application for a resumption recommendation. The Tribunal recommended that the parties attempt to negotiate a settlement. It gave some sense of the overall quantum,[38] and the relativities as among the claimant groups.[39] It reserved leave for the parties to apply for further direction if necessary.[40] The Tribunal did this against the background that it considered that those affected by the Crown’s breaches in relation to Mangatu State Forest comprised a broader group than simply the shareholders of the Incorporation. Where the Tribunal considers the question of remedies and concludes that it is preferable that the parties attempt to negotiate a settlement, subject to leave reserved, it is exercising its discretion in relation to remedies in the same sense as it does when it grants remedies itself in the first instance. In our view, the Judge was entitled to reach the conclusion that he did.
[38] At [16.7.1].
[39] At [16.7.2].
[40] At [16.8].
[49] Finally, we acknowledge the profound connection that the shareholders of the Incorporation feel to the 1961 land and their deep sense of grievance at the wrong that was done to them when the Crown purchased the land in the early 1960s. But seeking a resumption order does not confer priority on them or their claim. If they were likely to be excluded from any effective remedy in relation to the 1961 land, that would be an important factor for the Tribunal to consider in determining whether to grant an urgent remedies hearing. But they will not be excluded, and may yet be able to achieve the return of the land, depending on decisions still to be made by the claimant groups.
[50] In the result, we consider that Judge Clark was entitled to reach the view that he did, for the reasons he gave, and that Clifford J was right to reject the appellant’s application for judicial review.
Decision
[51] The appeal is dismissed. We make no order for costs.
Solicitors:
Gibson Sheat, Wellington for Appellant
Crown Law Office, Wellington for Second Respondent
Bennion Law, Wellington for Third Respondent
Nowland Gordon & Associates for Intervener
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