Haronga v Waitangi Tribunal - [2010] NZCA 201

IN THE COURT OF APPEAL OF NEW ZEALAND
CA73/2010
[2010] NZCA 201
BETWEENALAN PAREKURA TOROHINA HARONGA JUNIOR

Appellant

ANDWAITANGI TRIBUNAL

First Respondent
ANDTHE ATTORNEY-GENERAL

Second Respondent
ANDTE 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…

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 [2010] NZCA 201
Case: [2010] NZCA 201
Decision Date: 19 May 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal brought by Alan Parekura Torohina Haronga Junior against the Waitangi Tribunal, the Attorney-General, and Te Whakarau, was dismissed. Haronga, as the Chairperson of the Proprietors of the Mangatu Blocks Incorporated, had applied to the Waitangi Tribunal for an urgent remedies hearing after the Tribunal's 2004 Report on the Turanganui a Kiwa claims. He sought a binding recommendation from the Tribunal for the return of certain Crown forest land to the Incorporation. The Court examined whether the Tribunal's refusal to hold an urgent remedies hearing was lawful. The Court found that the Tribunal's circuit breaker policy, which prioritised settlement negotiations over remedies hearings, was lawful, and that Judge Clark's decision to decline the application was correct. The Court held that the Tribunal was entitled to consider the broader context of the appellant's application, including the settlement negotiations, when determining it. The appeal was dismissed, and no order for costs was made.

Orders