Haronga v Waitangi Tribunal HC Wellington CIV 2009-485-2277
[2009] NZHC 2611
•23 December 2009
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2009-485-2277
UNDER the Judicature Amendment Act 1972 and/or
Part 30 of the High Court Rules 2009
IN THE MATTER OF a decision of the Waitangi Tribunal dated
21 October 2009 declining to grant an urgent remedies hearing
BETWEEN ALAN PAREKURA TOROHINA HARONGA JUNIOR
Applicant
ANDWAITANGI TRIBUNAL First Respondent
ANDTHE ATTORNEY-GENERAL Second Respondent
ANDTE POU A HAOKAI Third Respondent
Hearing: 2 December 2009
Appearances: K Feint for the applicant
With leave, no appearance for the first respondent who abides
C Linkhorn and J Mildenhall for the second respondent
T Bennion and F Kahn for the third respondent
Judgment: 23 December 2009
JUDGMENT OF CLIFFORD J
Solicitors: Gibson Sheat, P O Box 2966, Wellington for the applicant
Crown Law Office, P O Box 2858, Wellington for the first and second respondents
D Tapsell Law Office for the third respondent
HARONGA V WAITANGI TRIBUNAL AND ORS HC WN CIV-2009-485-2277 23 December 2009
CONTENTS
Introduction.................................................................................................... [1] Background .................................................................................................... [2] The parties’ positions..................................................................................... [35] Legal context .................................................................................................. [38]
The Treaty of Waitangi Act 1975 ......................................................... [40] Return of Crown forest land ................................................................ [58] Urgent inquiries in the Waitangi Tribunal .......................................... [62] Remedies hearings in the Waitangi Tribunal....................................... [64]
The Decision ................................................................................................... [71]
Discussion
Mandate ............................................................................................... [75] Mr Haronga’s grounds of judicial review ........................................... [85] The status of claim Wai 1489 ............................................................... [89] Analysis ................................................................................................ [96] Formal withdrawal of mandate ........................................................... [119]
Result .............................................................................................................. [122]
Introduction
[1] The applicant, Alan Parekura Torohina Haronga Junior of Wellington, on behalf of the proprietors of Mangatu Blocks Incorporated (“Mangatu Inc”), seeks judicial review of a decision of the Waitangi Tribunal (“the Tribunal”). In that decision the Tribunal declined Mr Haronga an urgent hearing of his application for a binding recommendation from the Tribunal pursuant to s 8HB(1) of the Treaty of Waitangi Act 1975 (“the ToWA”) that certain Crown forest land be transferred to Mangatu Inc.
Background
[2] The background to this application is to be understood in terms of the history of Mangatu Inc and, in turn, in terms of the relationship of that history to the more general narrative of the Crown’s dealing with Maori in the region of Turanganui a Kiwa (or Poverty Bay, as it has come to be known in English). This judgment need deal only briefly with that complex narrative, which is powerfully recorded in Turanga Tangata Turanga Whenua, the 2004 Report of the Tribunal on the Turanganui a Kiwa Treaty claims.
[3] Before turning to that narrative, it is first necessary to have some understanding of the hapu and iwi in the region of Turanganui a Kiwa. The interrelationship between these hapu and iwi is not straightforward. The Turanga Tangata Turanga Whenua report preferred to use the combined category of ‘hapu or iwi’ because, in their view, a strict adherence to these labels failed to explain properly either current or historical Maori communities (at para 2.2). On that basis, the Report identified the hapu or iwi bringing claims with respect to Turanganui a Kiwa as Te Aitanga a Mahaki, Rongowhakaata, Ngai Tamanuhiri, Te Whanau a Kai, and Ngariki Kaiputahi (at para 2.1). Hapu associated with Te Aitanga a Mahaki were identified as including Ngati Wahia, Ngapotiki, Te Whanau a Taupara, TeWhanau a Iwi, Ngai Tamatea, Ngai Tutekenui, and Ngariki. Together, Te Aitanga a Mahaki and its “close affiliates” Te Whanau a Kai and Ngariki Kaiputahi were
referred to by the Tribunal as the “Mahaki Cluster”, which term I will adopt for convenience.
[4] For present purposes it suffices to begin that narrative in 1881. In that year an area of land in Turanganui a Kiwa, comprising some 160,300 acres known as the Mangatu block, came before the Native Land Court for title determination. That Court ultimately awarded the largest section, the Mangatu No 1 block, comprising some 100,000 acres, to “a group represented by Wi Pere … made up of members of Ngati Wahia and Ngariki descent, and of people who could affiliate to both groups” (see Turanga Tangata Turanga Whenua at para 14.1).
[5] Wi Pere subsequently obtained a Native Land Court certificate of title for the Mangatu No 1 block, naming 12 individuals on the understanding that they would establish a trust on behalf of 179 named individuals. Questions were subsequently raised about the validity of the trust deed and so legislation was introduced to resolve the problems. The Mangatu No 1 Empowering Act 1883 was passed establishing the body corporate now known as Mangatu Inc, and vesting in it ownership of the Mangatu No 1 block. After a rehearing in 1921, the Native Land Court adjusted the shareholding in Mangatu Inc to include members of Te Whanau a Taupara as owners.
[6] Mangatu Inc is a Maori Incorporation under Part 13 of Te Ture Whenua Maori Act 1993. At the present time, the approximately 5,000 owners of Mangatu Inc are of Ngati Wahia, Ngariki/Ngaariki Kaiputahi and Te Whanau a Taupara descent. Mr Haronga, a direct descendent of Wi Pere, sees the ownership of Mangatu Inc principally in terms of the hapu of Ngati Wahia, Ngariki and Te Whanau a Taupara. At the same time, it is acknowledged by Mr Haronga that not all members of those hapu are actually shareholders of Mangatu Inc.
[7] Around 1959 the Crown resolved to establish an afforestation scheme in the upper Waipaoa River catchment to protect land susceptible to erosion. As part of that scheme the Crown required part of the Mangatu No 1 block. Although the owners of Mangatu Inc initially and repeatedly advised the Crown that they did not
wish to sell, a sale and purchase of approximately 8,626 acres (“the 1961 Lands”)
was ultimately concluded in 1961-2.
[8] The Crown then established the Mangatu State Forest. About one quarter of that forest comprises the 1961 Lands. Contrary to the Crown’s representations at the time, rather than growing non-commercial forests for erosion control purposes, the Crown has operated the Mangatu State Forest on a commercial basis.
[9] In the 1980s the government’s expressed policy of selling state-owned assets, including the Crown’s commercial forestry interests, led to the now historic Lands and Forests decisions of the Court of Appeal: New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (the Lands case); New Zealand Maori Council v Attorney-General [1989] 2 NZLR 142 (the Forests case).
[10] Following the Lands case negotiations entered into between the Crown and the New Zealand Maori Council and Sir Graham Latimer resulted in an agreement as to how Crown assets could be transferred to State owned enterprises but simultaneously safeguard Treaty claims. Crown land could be transferred but it would be subject to resumption on the recommendation of the Tribunal that it be returned to the ownership of Maori. The Treaty of Waitangi (State Enterprises) Act
1988 was enacted to give effect to that agreement. It introduced (amongst other things) s 27B of the State-Owned Enterprises Act 1986 and ss 8A and 8B of the ToWA. Those sections provide that the Tribunal may make binding recommendations that land or interests in land transferred to or vested in State enterprises be resumed by the Crown and returned to Maori ownership.
[11] The Forests case concerned the Crown’s proposal to dispose of forest assets (cutting rights) through State owned enterprises to outside parties, with the effect that the lands would be unavailable for return to Maori for some 50-70 years. Following the Court’s decision in that case negotiations were entered into between the Crown, the Maori Council and the Federation of Maori Authorities Inc. An agreement (the Crown Forests Agreement) was reached on 20 July 1989. That agreement was given effect to by the Crown Forest Assets Act 1989 (“the CFAA”).
[12] In very broad terms, the CFAA established a regime whereby the Crown could, through Crown Forestry licences, sell the right to grow and cut trees on Crown forest land whilst the ownership of that land would be retained by the Crown. At the same time the CFAA, through amendments to the ToWA, gave the Tribunal the role of determining, in the context of Treaty claims, whether Crown forest land should be returned to Maori, or retained by the Crown effectively free of Treaty claims and therefore on the basis, amongst other things, that it might subsequently be sold by the Crown. Where the Tribunal considered that, as redress for a Treaty claim, Crown forest land should be returned to Maori, it was given the power to make binding recommendations to that effect.
[13] In February 1992, Eric John Tupai Ruru commenced a claim with the Waitangi Tribunal “on behalf of himself and on behalf of the members of Te Aitanga a Mahaki and on behalf of the shareholders of the proprietors of the Mangatu Blocks”. That claim, Wai 274, was based on the way the Crown had acted in acquiring the 1961 Lands.
[14] Wai 274 asserted that the acquisition of the 1961 Lands by the Crown was contrary to the principles of the Treaty of Waitangi, and that the whole lands forming the Mangatu State Forest were available for reparation in settlement of the historical grievances of Te Aitanga a Mahaki “arising from the acts done by the Crown resulting in the cession of that tribe’s land and in dealing with and disposing of them contrary to the principles of the Treaty of Waitangi”. The Tribunal was asked to recommend that the lands “comprising the Mangatu State Forest” be returned to the ownership of the proprietors of Mangatu Inc.
[15] Before me I think it was accepted that Wai 274 as originally filed was best understood, as I sense it always has been, as a claim – based on the breaches of the Treaty that had occurred in the manner in which the Crown acquired that land – for the return of the 1961 Lands to Mangatu Inc, for its proprietors. Pursuant to s 250(2) of Te Ture Whenua Maori Act, in general terms the establishment of a Maori Incorporation involves the vesting of the legal estate in fee simple of land previously held by the members in the Maori Incorporation, whilst the beneficial interest in that land remains vested in those members. My understanding is, therefore, that whatever
the original position may have been, Mangatu Inc is the legal owner, and its proprietors at the time were the beneficial owners, of the 1961 Lands before they were sold to the Crown.
[16] The Crown is said to have breached the Treaty, in the way it acquired the
1961 Lands, because it assured Mangatu Inc that the lands were being acquired to be part of a broad erosion control scheme. The Crown said it would grow a non- commercial forest on the 1961 Lands, and other land, for that purpose. As matters transpired, the 1961 Lands were incorporated into, and used as part of, the Crown’s commercial forestry operation known as the Mangatu State Forest.
[17] Wai 274 was, therefore, a Treaty claim which sought the specific redress that the Tribunal recommend that the 1961 Lands be returned to Mangatu Inc.
[18] On 28 March 1992 Mr Ruru, on behalf of himself and all members of the iwi of Te Aitanga a Mahaki, filed an amended claim, which broadened Wai 274 into a claim regarding the wrongful disposition of all of the traditional lands of Te Aitanga a Mahaki. That second claim was lodged in conjunction with similar claims filed by representatives of Rongowhakaata and Ngai Tamanuhiri. That second and joint claim was registered as Wai 283, which effectively incorporated Wai 274.
[19] In 2001 a considerably enlarged second statement of claim was filed by Mr Ruru in Wai 274 and Wai 283. In accordance with the practice adopted by the Tribunal in hearing the Turanganui a Kiwa Treaty claims, that statement of claim comprised a detailed pleading of Te Aitanga a Mahaki’s grievances. Included in that pleading was a section J, which dealt with the Mangatu State Forest. Like the original Wai 274 claim, it stated that the Mangatu lands were the ancestral domain of Te Aitanga a Mahaki. It then referred to the (then alleged) breaches of the Treaty and the way in which the 1961 Lands had been acquired by the Crown. By way of relevant relief, it asked not for the return of the 1961 Lands to Mangatu Inc, but rather that the Mangatu State Forest be returned to Te Aitanga a Mahaki.
[20] Between 2000 and 2004 the Turanga Tribunal (a panel of the Tribunal)
inquired into the various Turanganui a Kiwa claims. Those claims included Wai 274
as originally filed, referred to in the report as the Mangatu Afforestation claim (see Chapter 15). They also included a claim – referred to by the Tribunal as the Mangatu Title Determination – that the Native Land Court judgment of 1881 was itself incorrect as between Maori, in that the rights of Ngariki Kaiputahi had not been properly recognised (see Chapter 14).
[21] Turanga Tangata Turanga Whenua identified four broad areas of breaches of Treaty principles in relation to the Mangatu Title Determination and Afforestation claims. These were:
a) The process of title determination by the Native Land Court was flawed and wrongly excluded groups with a range of customary interests, especially Ngariki Kaiputahi;
b)The Native Land Court oversaw an unfair process to establish ownership structures. The Crown was slow to provide access to development finance for Maori land although it did agree to support legislation to form Mangatu Inc;
c) 20th century inquiries and investigations of relative individual interests in the land were also flawed and did not cure the major flaws in the original title determination process; and
d)In relation to the Afforestation claim, the Crown did not need to purchase the 1961 Lands to achieve erosion control by afforestation. The Crown misled the owners of Mangatu Inc into believing the forest would not be a commercial asset but would instead be a protection forest. Although the price was fair, Mangatu Inc had been pressured into agreeing to sell and the Crown did not properly consider their request for a land swap. At para 15.5.4 of Turanga Tangata Turanga Whenua the Turanga Tribunal concluded:
We find, therefore, that the Crown failed to act reasonably and with the utmost good faith when it acquired the Mangatu Forest lands from the Maori owners. The Crown breached the principles of the Treaty of Waitangi accordingly.
[22] The Tribunal also recognised (at 694-695) that the allocation of ownership in (what became) Mangatu Inc – as established by the 1881 judgment of the Native Land Court and subsequently amended by legislation in 1917 – prejudiced Ngariki Kaiputahi. “[T]he process by which relative interests were allocated was flawed”. However, the Tribunal was unable, at that time, to say what rights would have been allocated if Ngariki Kaiputahi had been able to properly reargue their case, and it was “certainly too late to argue for a rearrangement of rights in Mangatu”.
[23] The Turanga Tribunal urged the claimant iwi and hapu to negotiate settlement of the claims in a single district-wide negotiation process. It reserved leave, however, to all parties to apply for further direction if necessary.
[24] In 2007 the Crown commenced negotiations with an entity called Turanga Manu Whiriwhiri for an district-wide settlement of historical Treaty claims as established in Turanga Tangata Turanga Whenua.
[25] It is necessary to explain the position of Turanga Manu Whiriwhiri. In 2004
Te Pou a Haokai Claims Progression Team had been mandated to represent the interests of the Mahaki Cluster. The deed of mandate – submitted to the Crown on
30 March 2004 – lists Wai 274 as one of the historical claims to be settled. In turn, in August 2005 the Crown recognised three mandated groups for negotiation of the historical Turanga claims: Te Pou a Haokai Claims Progression Team, Ngai Tamanuhiri Whanui Charitable Trust (for Ngai Tamanuhiri) and Rongowhakaata Claims Committee (for Rongowhakaata). Mr Haronga says that Turanga Manu Whiriwhiri was/is the mandated body for the three iwi groupings of Turanganui a Kiwa. The Attorney-General denies that Turanga Manu Whiriwhiri is a mandated body, stating that the mandated representatives (or negotiators) of the three iwi groups simply took the collective name for the purpose of negotiations.
[26] On 29 August 2008 a district-wide Agreement in Principle for settlement of the historical Treaty claims of Turanganui a Kiwa was signed. Amongst other things, that Agreement in Principle states that the deed of settlement and settlement legislation will offer Te Pou a Haokai the right to purchase the Mangatu State Forest, including the 1961 Lands.
[27] On 31 July 2008 Mr Haronga, on behalf of Mangatu Inc, filed his application to the Tribunal under s 8HB(1) of the ToW Act (Wai 1489). Wai 1489 seeks the return of the 1961 Lands to Mangatu Inc, together with the accumulated licence fees and compensation pursuant to Schedule 1 of the CFAA.
[28] Mr Haronga regards Wai 1489 as being essentially the same claim as Wai
274. In my view he makes that statement with reference to Wai 274 as it was originally filed and not as subsequently amended. Wai 1489 was filed because, in Mr Haronga’s words in an affidavit filed with the Tribunal on 16 September, “[w]e were unable to use Wai 274, due to the claimant John Ruru’s concern that his dual positions as a negotiator for Turanga Manu Whiriwhiri and a member of the Committee of Management [of Mangatu Inc] created a conflict of interest”. More broadly, Mr Haronga and the proprietors’ reasons for filing Wai 1489 as a separate claim, and separately from the settlement negotiation currently underway which would provide Te Pou a Haokai with a right of purchase of the 1961 Lands, can be stated as follows, these points being taken from letters of 3 October 2008 and 3 July and 20 August 2009 written by Mr Haronga to the then Ministers in Charge of Treaty of Waitangi Negotiations, the Hon Dr Michael Cullen and the Hon Christopher Finlayson respectively:
a) The owners of Mangatu Inc have a long history of association with the Mangatu lands since 1983.
b) The Waitangi Tribunal stated in its report that the Crown breached the
Treaty of Waitangi in acquiring the 1961 Lands from Mangatu Inc.
c) The Crown Forests Agreement and the CFAA were negotiated by the Crown and Maori to resolve the ability of Maori to receive Crown forest lands as redress for Treaty of Waitangi breaches.
d)The Crown and the Tribunal ignore the law under the CFAA in insisting that the 1961 Lands be dealt with as part of the settlement negotiations for the Turanganui a Kiwa claims generally.
e) It does not resolve Mangatu Inc’s claim if Te Pou a Haokai receives the 1961 Lands, as that in effect leaves Mangatu Inc without a remedy. Mangatu Inc’s position is based on the principle that Mangatu Inc is entitled to the return of the land it lost as a result of the Crown’s 1961 Treaty breaches.
[29] I note that Mr Haronga acknowledged that the 1961 Lands are not of particular monetary value. Indeed, if returned to Mangatu Inc they may in fact be a liability given, as I understood it, the land’s steep and erosion-prone character. Nevertheless, the proprietors desire the return of the 1961 Lands to Mangatu Inc. They see the 1961 Lands as being part of the land acknowledged to be theirs by the Maori Land Court in the 19th century and which, over time, they have zealously maintained in their ownership.
[30] At the same time, Mr Haronga and Mangatu Inc say that Te Pou a Haokai’s
Treaty settlement ought not to be adversely affected by Mangatu Inc’s claim to the
1961 Lands. That position was repeated during the hearing before me.
[31] The Crown has not accepted that position. As set out in a letter sent by the Hon Christopher Finlayson to Mr Haronga dated 24 August 2009, the Crown’s position is that the 1961 Lands are part of the redress included in the Agreement in Principle with Turanga Manu Whiriwhiri and that Te Pou a Haokai is the body mandated to negotiate a settlement of the issues affecting those lands.
[32] Mr Haronga first sought an urgent hearing of his application in late July 2008 due to the then imminent signing of the Turanganui a Kiwa Agreement in Principle. On 28 August 2008, in Memorandum-Directions of Judge Coxhead, the Tribunal declined to grant an urgent remedies hearing on the basis that Mr Haronga had not made out the Tribunal’s grounds for urgency.
[33] On 17 September 2009 Mr Haronga made a further application to the Tribunal for an urgent remedies hearing. The urgency was based on the Crown’s (then) advice that the Crown and Turanga Manu Whiriwhiri intended to initial the deed of settlement in December 2009. (The Crown has subsequently advised that it is no longer feasible to initial the deed of settlement in December 2009.)
[34] In Memorandum-Directions of Judge Clark dated 21 October 2009 (the Decision) the Tribunal declined to grant an urgent remedies hearing to determine Mr Haronga’s application.
The parties’ positions
[35] By this application Mr Haronga effectively asks this Court to order that he and the Mangatu proprietors are entitled now to have their claim for transfer of the
1961 Lands heard by the Tribunal. They are entitled to have that claim heard, he submits, because that is a right given to them by the process for the consideration of ownership of Crown forest lands established by the CFAA. They are entitled to have that claim heard now, and as a matter of urgency, because if the current negotiations proceed to a legislated settlement, their claim to the 1961 Lands would be rendered nugatory: those lands will be transferred to a broader group and their claim to those lands, based on their 1961 Treaty grievance, will be extinguished by the enacting legislation. They say, therefore, that the Tribunal’s decision denying them an urgent hearing was wrong in law.
[36] The Tribunal (the first respondent) abides the decision of the Court. For his part, the Attorney-General (the second respondent) says that the Tribunal’s decision was one properly made by it in its discretion.
[37] Te Pou a Haokai, which describes itself as a reluctant party to these proceedings (it having been made a party on its own request on 16 November 2009), supports the Tribunal’s decision. In doing so, it points to the prejudice to it, and the negotiating parties, if the Tribunal and other interested parties are now required to convene and attend the urgent hearing Mr Haronga seeks.
Legal context
[38] The Decision is clearly a statutory power of decision (or the refusal to exercise a statutory power of decision) and therefore reviewable in terms of the Judicature Amendment Act 1972. Under s 4 of that Act, the court may, in its discretion, grant any relief in the nature of mandamus, prohibition, certiorari,
declaration or injunction to which the applicant would be entitled, set the decision aside or refer the matter back to the Tribunal for reconsideration together with directions (albeit subject to limitations in relation to relief against the Crown: see, for example, s 17(2) of the Crown Proceedings Act 1950).
[39] Here, Mr Haronga seeks relief in the nature of a declaration that the Tribunal’s Decision was invalid, an order quashing or setting aside the Decision, and an order of mandamus requiring the Tribunal to hear and determine his claim. Mr Haronga also initially sought a declaration that the Attorney-General should exclude the 1961 Lands from the Deed of Settlement pending resolution of the Wai 1489 claim. At the hearing, Ms Feint accepted that the Court did not have jurisdiction to make such a declaration and did not pursue that part of Mr Haronga’s claim.
The Treaty of Waitangi Act 1975
[40] The Tribunal is established by s 4(1) of the ToWA. In terms of the long title to the ToWA, the Tribunal was established “to make recommendations on claims relating to the practical application of the Treaty and to determination whether certain matters are inconsistent with the principles of the Treaty”.
[41] The Tribunal’s jurisdiction – as originally provided for – was recommendatory only, in the sense that recommendations it might make, under s 6(3), were not binding on the Crown. Section 6(3), as originally enacted and today, provides as follows:
If the Tribunal finds that any claim submitted to it under this section is well- founded it may, if it thinks fit having regard to all the circumstances of the case, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.
[42] As relevant for this application, the functions given to the Tribunal by s 5 of the ToWA include the function of “inquir[ing] into and mak[ing] recommendations upon, in accordance with this Act, any claim submitted to the Tribunal under section 6”.
[43] Section 6 provides for claims by any Maori or any group of Maori where they are, or are likely to be, prejudicially affected by, amongst other things, any Act, regulations, proclamation, notice, policy or practice (whether or not still in force) adopted (or proposed to be adopted) by or on behalf of the Crown, or any act done or omitted (or proposed to be done or omitted) by or on behalf of the Crown, which was or is inconsistent with the principles of the Treaty. That section was amended in
1986 to allow for historical claims – i.e. claims in relation to enactments passed or actions done or omitted at any time on or after the 6th day of February 1840. The Tribunal is required to inquire into those claims, subject to a time bar provision (in s
6AA(1)) and s 7.
[44] Under s 7(1), the Tribunal may in its discretion decide not to inquire (further)
into any claim under s 6 if in the opinion of the Tribunal:
(a) The subject-matter of the claim is trivial; or
(b) The claim is frivolous or vexatious or is not made in good faith; or
(c) There is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to the Ombudsman, which it would be reasonable for the person alleged to be aggrieved to exercise.
[45] Under s 7(1A), the Tribunal may, from time to time, for sufficient reason, defer its inquiry into any claim made under s 6, for such period or periods as it thinks fit.
[46] As quoted above, s 6(3) provides that, where a Tribunal finds a claim to be well-founded, and it thinks fit having regard to all the circumstances, it may recommend to the Crown that it take action to compensate for or remove the prejudice, or to prevent other persons being similarly affected in the future.
[47] That recommendation may be in general terms or may indicate in specific terms the action which, in the opinion of the Tribunal, the Crown should take (s
6(4)). The Tribunal shall not recommend the return to Maori ownership of any private land or the acquisition by the Crown of any private land (s 6(4A)). Under s
6(5):
The Tribunal shall cause a sealed copy of its findings and recommendation
(if any) with regard to any claim to be served on—
(a) The claimant:
(b)The Minister of Maori Affairs and such other Ministers of the Crown as in the opinion of the Tribunal have an interest in the claim:
(c) Such other persons as the Tribunal thinks fit.
[48] In addition to its general power to make non-binding recommendations under s 6(3), the amendments to the ToWA enacted following the Lands case, the Forests case and the subsequent Crown Forests Agreement (discussed above at [9] to [12]) give the Tribunal powers to make binding recommendations in certain circumstances.
[49] Sections 8A to 8H of the ToWA, in combination with s 27B of the State- Owned Enterprises Act 1986, provide for binding recommendations in relation to land transferred to State-owned enterprises. There is also power, under s 8D, on the application of a State-owned enterprise or other owner of any land or interest in land to which s 8A applies, for the Tribunal to recommend that the whole or part of that land or interest be no longer subject to resumption under s 27B.
[50] Similarly, ss 8HA to 8HI of the ToWA provide specifically for recommendations in relation to Crown forest land. Section 8HA imports definitions from s 2 of the CFAA. “Crown forest land” is therefore defined as:
all land that immediately before the commencement of section 32(1) of The State-Owned Enterprises Act 1986, was State forest land under The Forests Act 1949, Crown land, and other lands of the Crown, being land or lands shown as being allocated to New Zealand Forestry Corporation Limited on record plans—
(a) Lodged, whether before or after the commencement of this Act, in the office of the Chief Surveyor for the land district in which the land is situated; and
(b) Certified as correct for the purposes of this Act by that Chief Surveyor;
and
(c) As added to, varied or modified, from time to time, with the approval of the responsible Ministers—
and includes land or any interest in land acquired pursuant to section 8(d) of this Act; but does not include any land specified in Schedule 2 to this Act, being land leased or licensed to the Crown for forestry purposes:
[51] “Licensed land” means Crown forest land that is subject to a Crown forestry licence and includes land that was at any time Crown forest land and that is subject to a Crown forestry licence. “Crown forestry licences” are licences issued under s
14 of the CFAA.
[52] Where a claim submitted to the Tribunal under s 6 relates to licensed land the
Tribunal may, under s 8HB(1)(a) of the ToWA:
If it finds—
(i) That the claim is well-founded; and
(ii) That the action to be taken under section 6(3) of this Act to compensate for or remove the prejudice caused by the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission that was inconsistent with the principles of the Treaty of Waitangi, should include the return to Maori ownership of the whole or part of that land,—
include in its recommendation under section 6(3) of this Act a recommendation that the land or that part of that land be returned to Maori ownership (which recommendation shall be on such terms and conditions as the Tribunal considers appropriate and shall identify the Maori or group of Maori to whom that land or that part of that land is to be returned); or
[53] Alternatively, under s 8HB(1)(b) and (c), if the Tribunal finds that the claim is well-founded but a recommendation for return to Maori ownership is not required, or that the claim is not well-founded, the Tribunal may recommend to the Minister for Land Information that the land at issue not be liable to return to Maori ownership.
[54] Section 8HB(1) is expressly subject to s 8HC. Where the recommendations by the Tribunal include a recommendation under s 8HB(1)(a) or (b), all of those recommendations shall be in the first instance interim recommendations (s 8HC(1)). Copies of the interim findings and recommendations are to be served on the parties to the inquiry. The Tribunal shall not, without the written consent of the parties, confirm any such interim recommendations until at least 90 days after the date they were made (s 8HC(3)). A party served with a copy of the interim recommendations may (within the 90 days) offer to enter into negotiations with the other party for the settlement of the claim, and shall (within the 90 days) inform the Tribunal whether it accepts or has implemented the interim recommendations and, if the party has made an offer to negotiate, the result of that offer (s 8HC(4)).
[55] If the claimant and the Minister of Maori Affairs (s 8HC(5)) settle the claim, the Tribunal shall, as the case may require, cancel or modify the interim recommendations and may make, if necessary, a final recommendation under s
8HB(1)(a) or section 8HB(1)(b) of this Act. Otherwise, at the end of the 90 days, the interim recommendations shall become final recommendations (s 8HC(6)).
[56] Section 8HD sets out who has a right to be heard in relation to the Tribunal’s consideration of questions relating to Crown forest land, namely the claimant, the Minister of Maori Affairs, any other Minister of the Crown who notifies the Tribunal in writing that he or she wishes to appear and be heard, and (s 8HD(1)(d)):
Any Maori who satisfies the Tribunal that he or she, or any group of Maori of which he or she is a member, has an interest in the inquiry apart from any interest in common with the public.
[57] As for land transferred to State-owned enterprises, s 8HE provides that, on an application by any Minister or any licensee of Crown forest land, the Tribunal may, if the requirements of the section are met, recommend to the Minister of Land Information that the whole or part of any licensed land not be liable to be returned to Maori ownership.
Return of Crown forest land
[58] Part 3 of the CFAA provides for the return of Crown forest land to Maori ownership as well as compensation.
[59] Section 35 provides for restrictions on sale. In essence, the Crown may not sell or otherwise dispose of Crown forestry land or rights or interests in any Crown forestry licence until the Waitangi Tribunal has made a final recommendation that the land be returned to Maori or not, as the case may be. No doubt, where a Treaty settlement deals with a claim to such land the settlement legislation would address the sale restrictions otherwise contained in s 35.
[60] Section 36 provides for the “Return of Crown forest land to Maori ownership and payment of compensation” as follows:
(1) Where any interim recommendation of the Waitangi Tribunal under The Treaty of Waitangi Act 1975 becomes a final recommendation under that Act and is a recommendation for the return to Maori ownership of any licensed land, the Crown shall—
(a)Return the land to Maori ownership in accordance with the recommendation subject to the relevant Crown forestry licence; and
(b) Pay compensation in accordance with Schedule 1 to this Act.
(2) Except as otherwise provided in this Act or any relevant Crown forestry licence, the return of any land to Maori ownership shall not affect any Crown forestry licence or the rights of the licensee or any other person under the licence.
(3) Any money required to be paid as compensation pursuant to this section may be paid without further appropriation than this section.
[61] Under s 37(1), where the Waitangi Tribunal has made a recommendation in relation to Crown forest land under s 8HB(1)(b) or (c) or s 8HE of the ToWA – i.e. that the land not be liable for return to Maori ownership – no person shall be entitled to make any claim under s 6 of the ToWA in respect of the return of that land.
Urgent inquiries in the Waitangi Tribunal
[62] The concept of an “urgent inquiry” is not a statutory construct but occurs as a matter of practice in the Waitangi Tribunal. The Tribunal has issued a practice note (“Guide to Practice and Procedure”, August 2007) (“the Urgent Inquiries Practice Note”) which details its procedure for granting urgent inquiries.
[63] As relevant, the Urgent Inquiries Practice Note provides as follows:
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 :
¾the 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 ;
¾there is no alternative remedy that, in the circumstances, it would be reasonable for the claimants to exercise ; and
¾ the claimants are ready to proceed urgently to a hearing.
Other factors that will be considered by the Tribunal include whether:
¾ the claim or claims challenge an important current or pending
Crown action or policy;
¾an 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
¾ any other grounds justifying urgency have been made out.
(2) Application for urgency
An application for urgency is to be sent to the registrar. There is no prescribed form of application. However, an application shall set out the following information:
¾ the specific reasons why an urgent inquiry is sought;
¾whether the application relates to a claim or group of claims in their entirety, or whether it relates to an aspect of a claim or group of claims;
¾whether the applicant is ready to be heard or whether any research first needs to be carried out or completed, and, if research is required, the nature and extent of that research;
¾any people or bodies whom the claimants believe should be notified by the Tribunal because they will be affected by the application; and
¾ any other information that is relevant to the application.
Owing to the expeditious nature of urgent inquiries, the Tribunal also requires the applicant to serve a copy of the application and supporting documents on the Crown. ...
(3) Procedure for determining urgency
Following the receipt of an application for an urgent hearing, the Tribunal may convene a conference to hear submissions on it from the claimants and from any others who have a sufficient interest in it and who wish to be heard, including the Crown. Alternatively, the Tribunal may deal with the application on the papers without convening a conference.
Remedies hearings in the Waitangi Tribunal
[64] As for urgent inquiries, remedies hearings are not provided for in the ToWA or subordinate or other legislation. It would seem that the construct emerged as a result of the Tribunal’s modern tendency (as discussed below) to report on whether claims are made out, making preliminary or general recommendations, and then provide an opportunity for the Crown and claimants to negotiate a settlement. The Tribunal’s procedures and policies provide that separate remedies hearing may be held by the Tribunal if and when that negotiation fails.
[65] On 6 September 2007 the Deputy Chairperson of the Waitangi Tribunal, Judge Wainwright, issued a Memorandum and Directions in relation to remedies hearings (the “Remedies Memorandum-Directions”). Although issued in the context, and under the entituling, of particular claims, the Memorandum-Directions was expressly stated to be more generic in application:
... I am considering a generic procedural approach to remedies applications in my administrative as well as judicial capacity. It is intended that this direction will have effect in the handling of all remedies applications that come before the Tribunal.
[66] The Judge referred to the many claims the Tribunal is faced with, its limited resources and its consequent need of criteria and policies for the fair and efficient deployment of resources. She explained the modern approach of the Tribunal as follows:
... in recent times, though, the district inquiry model has led to the grouping together of historical claims in a region for hearing all together. Tribunals have made wide- ranging inquiry into issues arising in a district, with correspondingly wide-ranging findings. The focus has been on making explicit the Crown’s breaches of the Treaty, and the prejudice that has resulted. Recommendations have tended not to be specific. Rather the parties – Crown and claimants – are invited to use the Tribunal’s findings as a basis for negotiating their own arrangements by way of settlement.
...
Until recently, the Tribunal’s approach has seemed broadly to satisfy the needs of the parties. Now, however, it is more than ever apparent that sometimes negotiations get to a stage were the intervention of an outside party is required. Under current constitutional arrangements, the Waitangi Tribunal is the only body willing and able to do this. It is apparent that, in order to be effective, the Tribunal’s intervention might require it to make specific recommendations about remedies. ...
... Where claims have been reported upon and an obstacle to settlement has arisen, it is plainly desirable that the obstacle be addressed and, if possible, removed. The Tribunal is receptive to the idea that it has a potentially important part to play in this. However, it must be selective about the occasions upon which it agrees to proceed to further hearings after the issue of a report. It must balance with other calls on its resources the desirability of engaging further in claims already inquired into, in an endeavour to bring about the delivery of a remedy. ...
[67] The Judge stated that “there is probably no simple formula for determining when a remedies hearing should occur” due to widely ranging circumstances. She noted:
It is foolish to pretend that Treaty settlements, and the success or otherwise of negotiations, are not matters that have a distinctly political dimension, as well as legal dimensions, particularly as regards process, and the requirement that processes be fair. The Tribunal would never want to be without the discretion to address each situation on its own merits, and on its own facts. For this reason alone, it would be imprudent for there to be an overriding criterion.
[68] Judge Wainwright then set out the factors that the Tribunal would take into account in considering an application for a remedies hearing. First, the Tribunal would not entertain an application for a remedies hearing unless there was a report of the Tribunal determining the claims to be well-founded and the claimants deserving of a remedy. Beyond that, any or all of the following factors would be considered by the Tribunal where they were relevant:
(a) Whether the applicants really represent those whom they say they represent, and can demonstrate this to be son;
(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 want to recommend;
(c) Whether the 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 the complaint;
(h) When the application for a remedies hearing was filed in relation to other applications also seeking remedies hearings;
(i) Whether the remedies 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.
[69] The factors were expressly listed in no particular order, and the Judge acknowledged that the relative weight of each factor would be at the discretion of the panel or judge, and that the factors were not expected to be definitive or exhaustive. Judge Wainwright stated:
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.
[70] Lastly, the Judge recorded that the “Tribunal will not necessarily hear parties viva voce on their applications for remedies hearings” and that it “may suffice to call for submissions, and make a determination on the papers”.
The Decision
[71] Judge Clark made the Decision declining Mr Haronga’s application for an urgent hearing by reference to the Urgent Inquiries Practice Note relating to granting applications for urgent inquiries and the Remedies Memorandum-Directions as regards remedy hearings. In the Judge’s own words “[w]hilst both sets of ‘criteria’ are relevant, the approach I have taken in coming to a decision on this application is to place the greatest emphasis upon the comments made by the Deputy Chairperson concerning remedies hearing in her memorandum of 6 September 2007”.
[72] Having referred to the Remedies Memorandum-Direction, and more briefly to the Urgent Inquiries Practice Note, and having summarised the positions taken by the various parties, Judge Clark set out three reasons for his decision. These were, in summary:
a) The Tribunal had already heard the Mangatu Afforestation claim, and concluded that it was well-founded, but had not made a recommendation that the 1961 Lands be returned to the current owners of Mangatu Inc. District-wide settlement negotiations were well advanced, based on the Tribunal’s report. In those circumstances, it would be unlikely that the Turanga Tribunal would now change its settlement suggestions. The consistent theme which emerged from Turanga Tangata Turanga Whenua was that there should be a district wide negotiation carried out by the three tribal clusters.
b)On the two occasions in the past when the Tribunal had held remedies hearings, it did so after negotiations with the Crown had broken down. The intervention of the Tribunal had been sought as a circuit-breaker. That was not the case here. Thus the intervention of the Tribunal was not required in that sense.
c) The shareholders in Mangatu Inc would not ultimately be denied a “remedy”. They were all members of Te Pou a Haokai. Accordingly, in that capacity they stood to benefit from the settlement proposed:
Whilst it is correct to say that the Incorporation itself will miss out, in that an asset which it formerly owned is not being offered back to it, it is not correct to say that the shareholders in the Incorporation will not have the opportunity to benefit from the purchase of the Mangatu 1 block.
[73] Judge Clark also commented that, in the absence of the offer to Te Pou a
Haokai, Mangatu Inc would have had a strong case for an urgent remedies hearing:
... 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.
That would undoubtedly have been the case if the Tribunal was faced with a situation in which the Mangatu Incorporation were the only group interested in the return of the Mangatu No 1 Block. If there wasn’t the complication of an offer to Te Pou a Haokai, their application for an urgent remedies hearing would be very strong.
[74] In that passage, it is clear that the Judge was saying that a meritorious case would be heard notwithstanding arguments about process, scarce resources and diversion of time. What I take from the second paragraph is that here the return of the 1961 Lands, based on the well-founded breach established as regards the acquisition by the Crown in 1961-1962, but also other breaches by the Crown of a more historic nature, was, at the time and currently, the subject of a settlement offer and ongoing negotiations. These were considerations that weighed against the Tribunal taking up the request for an urgent remedies hearing in Wai 1489. As will become apparent, that is a key consideration in my judgment in the issues that Mr Haronga brings before the Court in this application.
Discussion
Mandate
[75] As discussed, Wai 274, and the Afforestation Claim as it came to be known, was included in the claims settlement process initiated by the Crown and in respect of which mandates were provided to Te Pou a Haokai. Counsel for Mr Haronga indicated that Mangatu Inc has now withdrawn that mandate. It is not clear to me what was meant by that. In terms of beneficial ownership, the claim is not that of Mangatu Inc, but of its proprietors. My understanding is that either directly, through Mangatu Inc or in some other way, those proprietors agreed initially to the Afforestation Claim being mandated for negotiation.
[76] In giving his Decision Judge Clark noted that the mandate given to Te Pou a Haokai included a mandate to negotiate the Mangatu forestry claim Wai 274. He recorded (at [33]) Ms Feint as “indicat[ing] that Te Pou a Haokai’s mandate to negotiate the Mangatu afforestation claim was withdrawn by the filing of the initial remedies application”. Conversely, Mr Linkhorn for the Crown had “argued that the applicant has not taken any steps to revoke the existing mandate and subsequently secure Crown recognition of a substituted mandate” (at [41]). In similar vein,
counsel for Turanga Manu Whiriwhiri submitted before Judge Clark that it and its constituent groups had a mandate to negotiate and settle all claims, Mr Haronga and Mangatu Inc did not have a mandate, and Turanga Manu Whiriwhiri was “unaware of any steps the Incorporation has taken to date to obtain a mandate” (at [46]). Judge Clark did not expressly determine whether Mangatu Inc had withdrawn the mandate (although he did note that Te Pou a Haokai’s mandate “initially included a mandate to negotiate the Mangatu forestry claim” at [59]).
[77] In terms of the evidence before the Court, Mr Haronga states in his affidavit of 12 November 2009 (at para 23):
I also don’t accept that Te Pou a Haokai’s mandate to negotiate the Treaty settlement removes our right to represent our owners and pursue a legal remedy. The Committee of Management [of Mangatu Inc] has been appointed to represent our owners, so legally we do have a mandate to take this action.
[78] In an earlier affidavit (dated 16 September 2009), that was before the Tribunal, Mr Haronga referred to the Committee of Management having the mandate of the owners of Mangatu Inc to seek the return of the land, and at para 43:
To be clear, Mangatu Incorporation has withdrawn the Mangatu afforestation claim from the Turanga Manu Whiriwhiri mandate.
[79] Again, in contrast, Ms Jane Fletcher for the Crown deposes in an affidavit dated 25 November 2009 at paras 54 and 65:
To my knowledge, Mangatu Incorporation has neither approached Te Pou a Haokai nor convened hui of the affected communities to set in train a process to modify or revoke the mandate held by Te Pou a Haokai.
...
Mangatu Incorporation have never sought or obtained a mandate from the various groups affected by claims to this land. Nor ... has the Incorporation set in train a process to modify or revoke the mandate held by Te Pou a Haokai.
[80] Similarly, Mr Owen Rutherford states in an affidavit (dated 25 November
2009) filed on behalf of Te Pou a Haokai that Te Pou a Haokai “has never been approached by Wai 274 claimants seeking to withdraw from TPH” (at para 15).
[81] Mr Haronga replied in an affidavit dated 27 November 2009 (at para 25) as follows:
I do not accept that Te Pou a Haokai has a current mandate to negotiate the Mangatu afforestation claim. It is artificial to suggest that the mandate secured at the hui in
2003-2004 is set in stone. A lot has happened in the five years since. At the time that Te Pou a Haokai carried out their mandating process in 2003-2004, the thinking
on the structure of the settlement was only in its formative stages.
[82] The position of the applicant seems to be that the mandate was withdrawn by, and at the time of, the decision to bring the Wai 1489 claim. I am not persuaded by that contention. None of the parties addressed in any significant way the manner in which a claimant may withdraw a mandate such as that held by Te Pou a Haokai. In my judgment, to withdraw that mandate would appear to require some voting process similar to that through which the mandate was obtained, as well as formal communication to the Crown and mandated body. At the time of the hearing before me, there was no evidence that Mangatu Inc or its proprietors had formally acted to have Te Pou a Haokai’s mandate withdrawn.
[83] Finally, on the question of mandate, Ms Feint submitted that no mandate had been given in respect of Wai 1489. Whilst I accept that is technically the position, at the same time Wai 1489 is advanced on the basis that it has been found to be a well- established claim, because of the Tribunal’s findings recorded in Turanga Tangata Turanga Whenua. I think, in those circumstances, it is artificial therefore to suggest that in some substantive way Wai 1489 can truly be regarded as a claim separate from those the settlement of which is currently subject to negotiations.
[84] It is in this context that Mr Haronga’s claim, and this application for judicial review, must be considered. At the conclusion of this judgment I make some comments as to the position had there been evidence on which this Court could find that Mangatu Inc had formally and effectively withdrawn Te Pou a Haokai’s mandate to settle the Mangatu Afforestation claim in relation to the 1961 Lands.
Mr Haronga’s grounds of judicial review
[85] In his statement of claim in these proceedings, Mr Haronga articulates six separate grounds of review. Ms Feint, for Mr Haronga, acknowledged that those grounds of review overlap with each other. As such, in arguing Mr Haronga’s application before me, Ms Feint refined those grounds of review into four separate
grounds. She further acknowledged, however, that those four grounds also overlap to some extent.
[86] My understanding of the core of Mr Haronga’s claim, and the manner in which I propose to address it, is as I have set out at [34]. That is, that notwithstanding the settlement negotiations that are now underway and the settlement which is in prospect – including of the Mangatu Afforestation claim – Mangatu Inc and its proprietors have, under ss 6 and 8HB of the ToWA, the right to have their claim (Wai 1489) considered by the Tribunal. That right exists as a matter of law separate and distinct from the processes of settlement initiated by the Crown with the iwi and hapu of Turanganui a Kiwa, and in which Te Aitanga a Mahaki and the hapu associated with Mangatu Inc (Ngati Wahia, Ngariki/Ngaariki Kaiputahi and Te Whanau a Taupara) are currently participating.
[87] Mr Haronga therefore characterises the Tribunal’s decision to decline him an urgent hearing as effectively the Tribunal deferring, unlawfully, to the Crown’s settlement processes. That is an unlawful action because the Tribunal is required to hear Wai 1489 in accordance with its statutory role in respect of Crown forest lands. Having regard, and deferring, to the Crown’s settlement processes was to make a decision based on an irrelevant consideration. Moreover, in declining Mr Haronga an urgent hearing, the Tribunal failed to take proper account of the prejudice that Mr Haronga and Mangatu Inc would suffer when – as they say now seems very likely or almost certain – the Crown reaches a settlement of the Turanganui a Kiwa claims, which include not only a settlement of claims to ancestral lands generally, but more particularly includes Mangatu Inc and its proprietors’ claims to the 1961 Lands, based on the more recent grievance relating to the Crown’s actions at that time.
[88] Before considering the substance of Mr Haronga’s case, I will consider two of the grounds advanced by the Attorney-General which did not deal with the substance of that claim, but rather went to its status.
The status of claim Wai 1489
[89] The Attorney-General argued, first, that Wai 1489, which seeks the remedy of a binding recommendation under s 8HB on the basis of the Turangi Tribunal’s
finding in Turanga Tangata Turanga Whenua of a well-founded Treaty breach as regards the 1961 Lands, is without a legal basis because the Tribunal has not (yet) made a finding that Wai 1489 itself is “well-founded”. Therefore the claim for a remedy was premature and could not succeed.
[90] I do not find that submission persuasive.
[91] The Tribunal itself, in considering Mr Haronga’s application for urgency in Wai 1489, acknowledged that it had found the claim as regards the Crown’s actions in acquiring the 1961 Lands to be well-founded (at [52]):
The Tribunal has heard the Mangatu Afforestation claim. It considered it to be well- founded.
[92] To address the Attorney-General’s point, all Mr Haronga would need to do would be to broaden his claim, so that it asked the Tribunal in effect to confirm the earlier finding and, on that basis, proceed to consider remedies. Mr Haronga could equally apply for urgency with respect to that claim as he has with respect to Wai
1489, which is explicitly framed as a remedies claim. Therefore to decide the matter on that basis would, in my view, be more than a little unsatisfactory, and I decline to do so.
[93] Secondly, the Attorney-General submits that the legal effect of the Tribunal’s decision is not to finally or substantively determine the Wai 1489 claim. Rather, the Tribunal has simply declined to grant priority to the hearing of that claim. He therefore submits that Mr Haronga has conflated the Tribunal’s procedural decision with the possibility of two further categories of events that are beyond the Tribunal’s control – namely, actions by Turanga iwi and the Crown to settle Treaty claims by settlement and legislation to give legal effect to that settlement – in order to conclude that the immediate legal result of the Tribunal’s decision is to substantively determine the claim.
[94] It is correct that Judge Clark’s decision was not, in law, a final determination of claim Wai 1489. Therefore, procedural issues such as that Judge Clark sat alone do not invalidate the decision.
[95] However, it is also true that, in fact, if the Turanga iwi and the Crown settlement proceeds into legislation the Tribunal will have no jurisdiction to consider the Wai 1489 claim. Therefore, the Tribunal’s decision not to accord urgency to Mr Haronga’s remedies hearing application may have the practical effect that the application is rendered nugatory. The fact that the Decision was of a procedural nature does not mean that it cannot result in prejudice to the applicant. Nor does the fact that any prejudicial effect of the Decision depends on matters outside the Tribunal’s control (settlement and enactment of legislation) if the Tribunal can reasonably foresee the likelihood of those matters taking place. Therefore, the potential prejudice to the applicant arising from the likelihood of an intervening settlement and legislation is something that, in accordance with the Tribunal’s own criteria, the Tribunal is required to take into account in determining whether to grant an application for an urgent remedies hearing.
Analysis
[96] As I have considered Mr Haronga’s application, it is my view that there are two central issues to be determined:
a) First, whether, as a matter of law, the general policy of the Tribunal (as articulated by Judge Clark) to hold remedies hearings only when acting as a circuit-breaker in settlement negotiations (the circuit- breaker policy) is a lawful approach for the Tribunal to take where a claim seeks binding recommendatory redress under s 8HB of the ToWA.
b)Secondly, even if it is not wrong in law to have such a general policy, was the application of the circuit-breaker policy in the present circumstances – and particularly the background of the Turanga Tangata Turanga Whenua report and the settlement negotiations between the Crown and Turanga Manu Whiriwhiri – wrong in law. In other words, was Judge Clark right, as I think was at the core of his decision, to decline an urgency application in reliance on the
Tribunal’s stated policy as regards remedies hearings of seeing its role as that of a circuit-breaker to assist these settlement negotiations.
[97] The first question raises the issue of whether claimants such as Mr Haronga had a right to have the Tribunal hear their applications.
[98] Ms Feint, for Mr Haronga, placed considerable reliance on Mair & Anor v Waitangi Tribunal & Anor HC Wellington CIV-2009-485-1499, 2 October 2009. The plaintiffs in Mair were applicants before the Tribunal. Their claims, Wai 655 and Wai 1840, would be extinguished by (at that time) impending Ngati Apa settlement legislation. They had therefore sought an urgent hearing, which the Tribunal had declined. In respect of Wai 655, the Tribunal recognised that the claim would be extinguished, the legislation removing the Tribunal’s jurisdiction to inquire into the claim and that Wai 655 claimants who had no connection with Ngati Apa would lose the opportunity to re-establish manawhenua in respect of land known as the Lismore Hills Forest blocks. The Wai 655 claimants would, however, be able to obtain redress through the mandated body – they were beneficiaries and they would be entitled to participate in the post-settlement governance entity. The Tribunal found the prejudice was that they would be unable to pursue their claim against the Crown in the manner they chose – through a Tribunal inquiry. The Tribunal found that, “in a material sense”, the Wai 655 claimants would not suffer significant or irreversible prejudice.
[99] In their application for review, the plaintiffs in Mair argued that the Tribunal had narrowed its consideration of relevant prejudice by its reference to “in a material sense”. The Judge took the reference to “material” to be financial or tangible prejudice. He said that that was too narrow a focus, and excluded, most importantly, prejudice to the Wai 655 claimants arising from the extinguishment of the claim without a hearing, and the possible loss of mana or manawhenua from treating the Wai 655 claimants (Nga Wairiki) as a hapu of Ngati Apa rather than recognising Nga Wairiki as an iwi in its own right. The Judge held (at [27]):
It was not, as a matter of law, sufficient for the Tribunal to confine its consideration to prejudice in a material sense, which might be regarded as met by the opportunities available to the claimants and persons of Nga Wairiki ancestry to participate in the Ngati Apa (North Island) settlement.
[100] On that basis, although the Court declined to issue an order requiring the Tribunal to convene an urgent hearing into the plaintiffs’ claims, a declaration was issued that the Tribunal erred in law and an order was made quashing that erroneous decision and directing the Tribunal to reconsider the application for urgency.
[101] There is no argument here that the Tribunal only considered “material” prejudice as that term was understood by MacKenzie J in Mair. It is clear from the Decision that the Tribunal considered the question of prejudice, and identified the extinguishment of the claim as prejudice. However, the Tribunal considered that the significance of that prejudice had to be seen in light of the consideration that, as a matter of fact, the proprietors of Mangatu Inc were also members of hapu and iwi who would benefit from the settlement. To that extent, therefore, Mr Haronga’s position is not advanced by reference to Mair.
[102] The Court in Mair also discussed in some detail the interrelationship between the Crown’s Treaty settlement policies and processes, and individual or group Treaty claims under ToWA. In particular, MacKenzie J commented:
[20] The Crown contends that it is appropriate that the settlement deed and the Bill should (as they do) define Ngati Apa (North Island) as including persons of Nga Wairiki descent. The Crown considers that an appropriate mandate to te Runanga to act on behalf of such persons has been given. There is evidence of efforts by the Crown negotiators to engage with the WAI 655 claimants and to include them in the Ngati Apa (North Island) settlement negotiations under the umbrella of te Runanga. ...
[21] The essence of the Crown position, very briefly stated, is that its willingness to deal with the WAI 655 claimants in this way, and the overwhelming mandate which the Crown contends has been given to te Runanga, justifies the course which it has adopted. In adopting the course it has, the Crown has followed its policy of negotiating the settlement of historical Treaty claims with large national groups of tribal interests at an iwi level. It prefers not to negotiate at hapu, whanau or individual claimant level.
[22] The Crown position is at variance with an essential proposition which underlies the claims in WAI 655. The claim asserts that Nga Wairiki is not a group which should be included under the umbrella of Ngati Apa (North Island). ...
[23] Whether or not the claimants will be able to establish that it is an iwi in its own right which should not be treated by the Crown as a component of Ngati Apa is not the point. The point is that they assert that position in a claim which has been validly brought before the Tribunal. The ability to assert that proposition is to be taken from the claimants. That is an element
of the prejudice which the claimants asserted on the urgency application. The claimants further contend that the treatment of Nga Wairiki as part of Ngati Apa is a matter which entails a loss of mana and a loss of mana whenua, for Nga Wairiki.
[24] The Crown’s position appears to ignore a fundamental distinction which must be made between the mandating of a particular organisation to act on behalf of a group for settlement purposes on the one hand, and the right to bring a claim before the Tribunal under s 6 of the Treaty of Waitangi Act
1975 (the TOW Act) on the other. Under s 6(1), the right to bring a claim is given to any Maori who claims that he or she, or any group of Maori of
which he or she is a member, has been or is likely to be prejudicially
affected by Crown action. The right to submit a claim to the Tribunal is not framed in terms which require the claimant to establish any mandate from
any group to advance a claim. The giving of a mandate to an entity for
Treaty settlement purposes by persons who may be included in the group of which the claimant claims to be a member cannot deprive the claimant of his or her right, under s 6(1), to submit the claim to the Tribunal. Nor can the Crown’s policy of a preference to settle claims at an iwi level restrict the right of individuals or groups to bring a claim under s 6.
[25] Under s 6(2) the Tribunal must inquire into every claim submitted to it. The Tribunal cannot, consistent with its duty under s 6(2), refuse to inquire into the claim on the grounds that the right of the claimant to represent the group has been challenged, unless the Tribunal were to consider that the circumstances justified the exercise of its discretion under s 7 to refuse to inquire into the claim on any of the grounds in s 7(1). There has been no challenge to the right of the claimants in WAI 655 to mount that claim. The Crown position treats their ability to bring that claim as having been somehow superseded by the quite separate mandate given in relation to the settlement process. I do not consider that any legal justification for the Crown to adopt that course has been demonstrated. There is no legislative authority for ignoring the right of the claimant under s 6.
[103] In my view, MacKenzie J’s comments as to the right to bring a claim under the ToWA being fundamentally distinct from participation in the subsequent mandating of a particular entity to act in settlement proceedings, are apposite where (as before him) the claim at issue is distinct from the claims the subject of the settlement proceedings. It is, in my judgment, clear that the Tribunal could not limit itself to holding remedies hearings only where negotiations in relation to the land have broken down (the circuit breaker policy), in circumstances where the claim at issue is in respect of another breach than those at issue in those settlement proceedings.
[104] Here, however, the issue is whether the Tribunal was wrong in law to apply the circuit-breaker policy in the circumstances of Mr Haronga’s application.
[105] Underlying Mr Haronga’s application is the contention that the Tribunal has a statutory obligation to hear his claim. Ms Feint accepted that, in terms of s 8HB, the Tribunal has a discretion whether to make any recommendation as to the return of Crown forest land to Maori. However, she submitted that the Tribunal was required to consider whether to exercise that discretion – i.e. to hold a remedies hearing.
[106] In my view, however, the contention that the Tribunal has not, in effect, considered its discretion under s 8HB is unpersuasive.
[107] The claim in relation to the 1961 Lands on the basis of a breach in 1961-1962 was clearly before the Tribunal in its inquiry into the Turanganui a Kiwa claims (albeit in terms of Wai 274/Wai 283 rather than Wai 1489). The Tribunal found that the claim – the Mangatu Afforestation claim – was well-founded. Although Turanga Tangata Turanga Whenua does not specifically refer to the powers of the Tribunal to grant a remedy in relation to Crown forest land under s 8HB and the CFAA, it is not to be expected that the experienced Tribunal was unaware of its jurisdiction in that respect. Rather, in my view, the fact that the Tribunal did not invoke the s 8HB jurisdiction to make a binding recommendation is to be seen in the context of the Tribunal’s comments on remedies generally.
[108] Those comments, albeit expressed generally and on a “first principles” basis, were as follows (at para 16.5):
... it would still be our preference, and no doubt the Crown’s, for the claimant iwi and hapu to negotiate the settlement of the Turanga claims in a single district-wide negotiation process if that is at all feasible. The advantages of this approach to the Crown and claimants are obvious and significant. For the Crown there is the advantage of a single set of negotiations without the usual problems of boundary disputes (at least for the iwi and hapu represented within the district). There can be significant gains in both time and cost for the Crown. For the claimants, there is the additional leverage on the crucial question of quantum, which a single district-wide claimant table can bring to the negotiation. A negotiating panel on which all settling groups are represented also has the advantage of transparency between claimant groups. This can reduce the potential for claimants to be distracted by internal competition over the size and nature of their respective settlement packages. Disputes over dividing the pie can be resolved more easily by using collective efforts to enlarge it first. In addition, there are significant advantages to claimants in being able to pool skills and expertise. In every district, there will be only a few individuals with experience in negotiation in the highest levels of government and with the networks to call on where necessary. It produces far better results for all if those few can be engaged for the common good, rather than to advantage one group over the others.
That is not to say that a single negotiation would produce a single settlement package. On the contrary, we would fully expect a single negotiation to result in the creation of several settlement packages in accordance with the wishes of the claimants. It is the single negotiation that produces the advantages, not necessarily the single settlement.
Whether this approach is feasible we cannot say, but it ought to be carefully considered for the benefits that it can bring to all sides. At the very least, the claimants should give consideration to a single negotiation of quantum for the whole district, even if each claimant group would prefer to negotiate its own particular settlement package.
We turn now to the particular claimant groups and our view of the levels at which they should settle however the negotiations are ultimately structured. The hapu and iwi claims are advanced by:
¾ Te Aitanga a Mahaki and its close affiliates Te Whanau a Kai and
Ngariki Kaiputahi;
¾ Rongowhakaata; and
¾ Ngai Tamanuhiri.
It is our view that the Mahaki cluster (our phrase for want of a better one) should negotiate a single settlement, though we do not discount the possibility that the result would include separate packages for each of Te Whanau a Kai and Ngariki Kaiputahi. In the end, although Te Whanau a Kai and Ngariki Kaiputahi have a number of distinctive claims, they are both so closely bound up in the Mahaki complex that the claims they share with their whanaunga outweigh, in our view, those which are distinct. That includes, we hasten to add, Ngariki Kaiputahi’s separate Mangatu claim.
... Thus, in our view, the historical claims in Turanga should, as a preference, be negotiated at a single district-wide table, or, if that is not possible, then in three separate negotiations with the Mahaki cluster, Rongowhakaata, and Ngai Tamanuhiri.
[109] The Decision of Judge Clark needs to be considered in that context. As noted above, I accept that it would be wrong in law if the Tribunal declined to hold remedies hearings in all circumstances unless a settlement process had broken down. However, where the Tribunal has already considered the claim, found it to be well- founded, but in its discretion declined to make any recommendations – binding or otherwise – it is, in my judgment, unnecessary in law for the Tribunal to hold an urgent remedies hearing to, in essence, again consider whether to exercise its discretion to make a recommendation.
[110] 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.
[111] Ms Feint argued that a claim seeking the return of Crown forest land (under s
8HB) is something entirely separate from the settlement process, and so the existence of settlement negotiations is an irrelevant consideration, and deference to ongoing negotiations is an abdication of the Tribunal’s statutory function. I am not persuaded by that submission. In my view, settlement negotiations and Tribunal hearings are inherently inter-related. There is an inevitable relationship between the two processes in which the Tribunal makes findings in relation to Treaty breaches, the parties attempt to negotiate settlements, and the Tribunal decides whether to make recommendations in light of the status of those ongoing negotiations. Richard Boast has observed, albeit in a slightly different context:
… the role of the Waitangi Tribunal, and thus its procedure, derive in turn from the structural position of the Tribunal within the Treaty settlements process generally. ("Waitangi Tribunal Procedure" in J Hayward & N R Wheen (eds) The Waitangi Tribunal (Bridget Williams Books, Wellington,
2004) 53 at 64).
[112] The fact that Mangatu Inc seeks a recommendation under s 8HB does not change this relationship, except to the extent that the Tribunal has a discretion to issue a recommendation which will become binding. Even when it does issue a recommendation, that recommendation is in the first instance interim to enable the parties to instead negotiate their own settlement. As such, it is my view that the existence and current status of settlement negotiations are not an irrelevant
consideration for the Tribunal when determining whether to grant a remedies hearing. The Tribunal is entitled to have regard to the progress and status of settlement negotiations in considering whether (in its discretion) to issue a recommendation.
[113] In these circumstances, I am of the view that the Tribunal is generally entitled to adopt a policy that it will not intervene unless the settlement process – which it has indicated the Crown and claimants should pursue – has broken down. That is for the reasons expressed by the Deputy Chairperson in the Remedies Memorandum- Directions, namely the need for a fair and efficient deployment of the Tribunal’s resources and the concern that the Tribunal’s “involvement in recommending specific redress – particularly by use of its compulsory powers – could unwittingly lead to uncertainty and inconsistency”.
[114] The Tribunal’s circuit-breaker policy is consistent with the district-wide model that has evolved for the determination of claims in preference to separate considerations of individual, piecemeal determinations. That approach, in my view, is better suited to providing an effective process for the settlement of claims associated with any particular area of land. Here, those claimants include Mangatu Inc but also those who claim an entitlement to the 1961 Lands (amongst other land) for more historical breaches of the Treaty. The circuit-breaker policy also recognises the “distinctly political dimension” to Treaty settlements recognised by the Deputy Chairperson. One may assume that these factors are relevant to the constitution of the Tribunal as a Commission of Inquiry in the first place, its (generally) non- binding recommendatory role and, further, why the Tribunal has a discretion to recommend the return of any land to Maori (or other compensation) under both s
8HB and, more generally, s 6(3).
[115] In context, therefore, the decision before the Tribunal was whether to revisit its earlier decision (it having reserved leave to do so) not to make recommendations but to enable the parties to come to their own agreement. In other words, the decision was whether to intervene in ongoing – and not stalled – settlement negotiations to make a recommendation as to remedy in relation to one claim within the district wide inquiry. Seen in that light, it is my view that Judge Clark did not err
in law in making his decision to decline an urgent remedies hearing on the grounds that:
a) The Tribunal (in Turanga Tangata Turanga Whenua) did not recommend that the 1961 Lands be returned to Mangatu Inc. The Tribunal instead made suggestions as to a district-wide settlement. Those suggestions were being followed by all of the Turanganui a Kiwa claimants with the exception of the applicant.
b)Those (suggested) negotiations had not broken down and the Tribunal’s intervention was therefore not necessary as a circuit- breaker. Although leave had been given by the Tribunal to apply for further direction if necessary, the Tribunal was entitled to find that, in light of the ongoing settlement negotiations, it was not at that stage necessary for the Tribunal to intervene.
c) The result of the above would not be to deny the proprietors of Mangatu Inc a remedy – they would be entitled to share in the benefit of any settlement reached with the Crown.
[116] In the context of what I understand to be an earlier decision by the Tribunal not to exercise its discretion to make a recommendation, the fact that the settlement negotiations it instead recommended – as regards the 1961 Lands claim as well as the more historical breaches – had not broken down, and the fact that Judge Clark did not perceive the proprietors of Mangatu Inc to be significantly and irreversibly prejudiced by those negotiations (given their membership of the iwi and hapu), were, in my view, relevant considerations. I therefore do not find that the Tribunal took into account irrelevant considerations, erred in law or misconstrued its statutory function. Nor did it abdicate its statutory function in deference to the Crown’s settlement policies.
[117] The Tribunal, in my judgment, took into account all relevant considerations, including the extent of the prejudice to Mangatu Inc. Finally, I am not persuaded that the Tribunal’s decision was in breach of natural justice. It is correct, as noted above, that the practical effect of the Decision might be that the Crown and Te Pou a
Haokai/Turanga Manu Whiriwhiri proceed to settlement, legislation is enacted and the Tribunal’s jurisdiction to hear Wai 1489 is removed. However, this is in the context that the Tribunal has already considered the claim as the Mangatu Afforestation claim in its Turanga Tangata Turanga Whenua report. At that time, it considered whether to issue recommendations. It decided not to, but rather to provide an opportunity for the Crown and claimants to negotiate their own settlement. The Tribunal’s decision was therefore not, in substance, a final determination of the claim in relation to the 1961 Lands, but a recognition that – in accordance with the Tribunal’s earlier directions/suggestions – that claim was being negotiated by the Crown and mandated body. There is, in those circumstances, no breach of natural justice in my judgment. In effect, the 1961 Lands claimants had had their day before the Tribunal and negotiations were proceeding to give effect to the findings of the Tribunal.
[118] For those reasons, in my judgment, the applicant’s grounds of review are not made out.
Formal withdrawal of mandate
[119] As noted above, such evidence as there was fell short of establishing that Te Pou a Haokai’s mandate to negotiate a settlement in relation to the Treaty breach as regards the Mangatu Afforestation claim has been formally and effectively withdrawn. For completeness, I make some comments as to the position as I see it had Mangatu Inc (and any other relevant party) done so.
[120] In those circumstances, it is my view that the Tribunal would have erred in law if it relied on the ongoing negotiations between the Crown and Te Pou a Haokai/Turanga Manu Whiriwhiri to dismiss an application for an urgent remedies hearing. If Te Pou a Haokai’s mandate had been withdrawn, and the Crown declined to deal with a new mandated body (e.g. the Committee of Management of Mangatu Inc) – because of its strong preference to negotiate the settlement of historical claims with large natural groups at an iwi/hapu level (as described by Ms Fletcher at para
23), or otherwise – the relevant negotiations would have stalled. At that point, the
Tribunal would be required to assess – in terms of the factors set out in its Remedies
Memorandum-Directions – whether to intervene in its circuit-breaker role. It would, in my judgment, be an irrelevant consideration to rely on the otherwise ongoing negotiations in the sense that intervention was not required.
[121] In those circumstances, whether or not a remedies hearing would be accorded urgency would be considered in light of the guidance provided in the Urgent Inquiries Practice Note. It may be that, where the Crown and Turanga Manu Whiriwhiri/Te Pou a Haokai are (in those circumstances) negotiating the settlement of the land sought by the claimant in relation to other breaches, that itself would amount to likely significant and irreversible prejudice such that an urgent hearing is warranted.
Result
[122] For the reasons given, Mr Haronga has not established that the Decision of the Tribunal declining to grant an urgent remedies hearing in relation to his Wai
1489 claim was made in error of law, taking into account irrelevant considerations, not taking into account relevant considerations or in breach of natural justice. I therefore dismiss his application for judicial review of that Decision.
[123] The question of costs was not raised before me. Accordingly, I reserve that issue for subsequent application if any of the parties consider that necessary.
“Clifford J”
0
0
1