Hart v Director-General of Conservation
[2023] NZHC 1011
•2 May 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-260
[2023] NZHC 1011
IN THE MATTER of an application for relief under the Judicial Review Procedure Act 2016 and Part 30 of
the High Court Rules 2016BETWEEN
CALVIN TUI HART, JANIS BARBARA DE THIERRY, HAYSLEY KENNY MACDONALD, RIKI RAYMOND PALATCHIE, ANTHONY MICHAEL MACDONALD, PETER NATHAN MEIHANA AND WIRIHANA DE
THIERRY-LUKITAU
PlaintiffsAND
DIRECTOR-GENERAL OF CONSERVATION
First Defendant
AND
TE RŪNANGA O NGĀI TAHU
Second Defendant
Hearing: 6–7 March 2023 Appearances:
M J Radich and S A Wadworth for the Plaintiffs
P H Courtney and D Ranchhod for the First Defendant
J D Every-Palmer KC, R E Brown and G F Dawson for the Second Defendant
Judgment:
2 May 2023
JUDGMENT OF COOKE J
HART & ORS v DIRECTOR-GENERAL OF CONSERVATION [2023] NZHC 1011 [2 May 2023]
Table of Contents
The facts [5]
Inconsistency with MMP Act [31]
Definition of “take” [37]
Exception in s 4(5)(a) [41]
Source of power [45]
Conclusion [49]
Procedural impropriety [50]
The core complaint [53]
Fairness/legitimate expectation [67]
Breach of Treaty principles [75]
Good faith [79]
Rangitāne’s Treaty Settlement rights [84]
The resolution of overlapping claims [105]
Remedy for breach of legitimate expectation [121]
Conclusion [125]
Remedy [126]
[1] In 2009 a sperm whale died and was washed ashore near the mouth of the Awatere river on the north eastern coast of the South Island. Representatives of the Te Papa Atawhai, Department of Conservation (DoC), Te Rūnanga a Rangitāne o Wairau (Rangitāne) and Ngāti Kurī, a hapu of Te Rūnanga o Ngāi Tahu (Ngāi Tahu), attended the casting. Both Rangitāne and Ngāti Kuri/Ngāi Tahu have cultural associations with whales and with the area. Both claimed to be entitled to the taonga to be recovered from the deceased whale, particularly the jawbone and teeth — te kauae. It was agreed between DoC, Rangitāne and Ngāti Kuri/Ngāi Tahu that the whale would be buried, but that the jaw would be separated and remain in the possession of DoC pending Rangitāne and Ngāti Kuri/Ngāi Tahu reaching an agreement about entitlement. The jawbone was then buried by DoC in nearby conservation land.
[2] In 2018 the circumstances repeated themselves when a deceased sperm whale came ashore at Marfells Beach, a little further south than the earlier casting but in the same general vicinity. Once again Rangitāne and Ngāti Kuri/Ngāi Tahu claimed cultural interests over the jawbone, and it was again agreed that DoC would take possession on the same basis. It was also buried by DoC in the same way at the same site.
[3] No meaningful discussions took place between Rangitāne and Ngāti Kuri/Ngāi Tahu and no agreement on the allocation of the jawbones was reached. On 13 February 2021 the Minister of Conservation attended a pōwhiri where Ngāti Kuri/Ngāi Tahu asserted an entitlement to the jawbones, as they had done previously. The Minister then advised DoC to make an allocation decision. Whilst there was some engagement with Rangitāne by DoC, Rangitāne was unaware that DoC was proposing to make an allocation decision, or that it was proposing to give the jawbones to Ngāti Kuri/Ngāi Tahu. In August 2021, an allocation decision to that effect was proposed and the allocation was made in February 2022. DoC then dug up the jawbones and transported them to Kaikoura, delivering them to Ngāti Kuri/Ngāi Tahu in March 2022. After Rangitāne became aware that this had happened they brought these judicial review proceedings challenging the Director-General’s decision. An application for interim orders was filed. This was resolved by Ngāti Kuri/Ngāi Tahu providing an undertaking to hold the jawbones pending further orders of the Court.
[4] For the reasons I will explain in greater detail below I have concluded that the Director-General of Conservation has acted unlawfully. In particular:
(a)The decision to allocate and then deliver the jawbones to Ngāti Kuri/Ngāi Tahu was unlawful as it conflicted with the Marine Mammals Protection Act 1978 (the MMP Act). Whale bones could only be possessed by Ngāti Kuri/Ngāi Tahu in accordance with a permit issued under s 6 of the MMP Act following a decision by the Minister, and no such permit had been granted.
(b)The Director-General acted with procedural impropriety by making an allocation decision, and then by delivering the jawbones to Ngāti Kuri/Ngāi Tahu. The Director-General did not inform Rangitāne that there was a proposal to allocate the jawbones nor did the Director- General hear from Rangitāne on that proposal. This course of action involved a departure from what had previously been agreed.
(c)The Director-General’s conduct was also inconsistent with the principles of the Treaty of Waitangi and s 4 of the Conservation Act 1987. It breached the Crown’s obligation of good faith to Rangitāne given that its conduct was inconsistent with the agreement earlier reached, and no tikanga consistent processes had been followed for resolving the claims to entitlement as required by Treaty principles.
(d)Contrary to Ngāti Kuri/Ngāi Tahu’s submissions in relation to relief, Ngāti Kuri/Ngāi Tahu do not have an entitlement to the jawbones. Tikanga consistent processes are required to resolve the disagreements between Rangitāne and Ngāti Kuri/Ngāi Tahu. The Director-General’s decision is set aside, and pending completion of such processes, the jawbones will be held in accordance with orders of the Court.
The facts
[5] I begin by addressing the facts in a little more detail. This will involve making some factual findings.
[6] The first sperm whale casting occurred on or about 23 November 2009. The whale washed ashore north of the Awatere River mouth.1 This is an area that is recognised to be within Ngāti Kuri/Ngāi Tahu’s takiwā, but it is close to the border with Rangitāne’s takiwā. It is also an area where Rangitāne has recognised cultural interests. Philip Bradfield, who has worked for DoC since it first came into existence in 1987 and who is now the Operations Manager for the South Marlborough District was alerted of the casting and attended. Representatives of Rangitāne were present, including the late Richard Bradley, Wayne Abbott, and Jeffrey Hynes. Representatives of Ngāti Kuri/Ngāi Tahu were also present, including Brett Cowan. Mr Cowan was employed by DoC at the time, but I accept he attended as a representative of Ngāti Kuri/Ngāi Tahu as well.
[7] There are disagreements as to precisely what occurred at the site of the casting. Mr Bradfield of DoC, Mr Hynes of Rangitāne, and Mr Cowan of Ngāti Kuri/Ngāi Tahu all describe the events in their affidavits. The uncertainties include differences of view as to who conducted karakia and engaged in other customary processes. But on the key issue I accept the evidence of Mr Bradfield that both Rangitāne and Ngāti Kuri/Ngāi Tahu claimed an entitlement to the jawbone, and that an agreement was reached between Rangitāne, Ngāti Kuri/Ngāi Tahu, and DoC. The agreement was that the whale would be buried, and before it was buried the jaw would be separated from the rest of the whale and held by DoC to allow Rangitāne and Ngāti Kuri/Ngāi Tahu to reach a further agreement about entitlement. That is what the Director-General initially admitted at para [19.2] of his statement of defence, and the evidence is consistent with that admission.2 This agreement can fairly be described as a custodian agreement. It was appropriate for DoC to agree to this role given that claims were being made by the two iwi, and fulfilling a custodian role was consistent with the Crown’s functions under the MMP Act and s 4 of the Conservation Act.
[8] I do not accept Mr Cowan’s evidence that DoC’s agreement was to hold the jawbone on behalf of Ngāti Kuri/Ngāi Tahu alone. That is not only inconsistent with the evidence of Mr Bradfield and Mr Hynes, but it is also inconsistent with the
1 I will refer to these events as “castings”. On both occasions, however, the whales had died before they washed ashore.
2 The admission appears to have been withdrawn in the statement of defence to the second amended statement of claim dated 31 March 2023 filed with leave after the trial.
understandings of DoC since that time and the way all the parties behaved thereafter. It may be that the agreement was initially focused on the period of time involved in the decomposition of the flesh from the jaw as Mr Cowan says, but I do not accept that the process contemplated by the agreement was time limited. Neither do I accept that it was agreed that DoC would allocate the jawbones to Ngāti Kuri/Ngāi Tahu at some stage in the future. The purpose for which DoC agreed to hold the jawbone was to act as custodian until agreement had been reached between the two iwi. DoC then took the jawbone and buried it in nearby conservation land in an area that was in Rangitāne’s takiwā.
[9] There do not appear to have been any meaningful discussions between Rangitāne and Ngāti Kuri/Ngāi Tahu about the jawbone after that time. There were other processes/disputes going on in the background concerning overlapping claims more generally which I will describe in greater detail below. In any event, a number of years went by without any resolution.
[10] In 2018, however, another sperm whale died and washed ashore in the same general area as the first stranding. This time at Marfells beach, which is a little further south than the last stranding site. Again, this is an area within Ngāti Kuri/Ngāi Tahu’s takiwā but still part of an area where Rangitāne has recognised cultural interests. This event occurred over some four days beginning on 7 July 2018. Representatives of DoC, Rangitāne, and Ngāti Kuri/Ngāi Tahu attended. There is more extensive evidence on what occurred on this occasion. I accept that an agreement was reached for DoC to hold the second jawbone on the same basis as it did in 2009, as the Director- General initially admitted in their statement of defence. In particular:
(a)DoC’s evidence comes from James Gilmour (Senior Ranger Heritage and Visitor for South Marlborough District) and John Wootton (then Senior Ranger/Supervisor Community) who both attended the casting. They say there were discussions between Ngāti Kuri/Ngāi Tahu and Rangitāne. Mr Gilmour says that following those discussions DoC was asked to look after the jawbones until iwi reached agreement on what should be done with them. Mr Wootton describes the discussions between the iwi representatives which he says were direct and
forthright “although an agreement fortunately was reached”. He says it was agreed that the jawbone would be held by DoC to allow an agreement to be reached on where they would end up. Roy Grose (Operations Director) also gives evidence that he was informed that this was the agreement at the time.
(b)This is consistent with Rangitāne’s evidence. Wendy Hynes of Rangitāne attended the casting. She says she had a discussion with Darran Kerei-Keepa of Ngāti Kuri/Ngāi Tahu and that they agreed that the jawbone would be buried alongside the 2009 jawbone whilst they continued to kōrero about the allocation of both jawbones. Corey Hebberd was present and he says that Ms Hynes told him that it had been agreed the jawbone would be taken into the custody of DoC pending agreement between Rangitāne and Ngāti Kuri/Ngāi Tahu. I do not accept the evidence of Safari Hynes that Rangitāne allowed the second jawbone to go into DoC’s possession on the understanding that it belonged to Rangitāne.
(c)Darran Kerei-Keepa of Ngāti Kuri/Ngāi Tahu also describes the agreement. He says that Ms Hynes claimed that Rangitāne had an interest in the jawbone. He says he did not agree, but he agreed that the jawbone should be buried and allowed to decompose while Rangitāne and Ngāti Kuri/Ngāi Tahu “built up [a] relationship”. Rāwiri Manawatu contends in his affidavit, however, that he was clear that the jawbone was being looked after by DoC for Ngāti Kuri/Ngāi Tahu, not on behalf of Rangitāne. He nevertheless confirms what Mr Kerei- Keepa explained at the time — that they would let the jawbone be buried and decompose whilst Ngāti Kuri/Ngāi Tahu built up the relationship with Rangitāne.
[11] Based on all the above evidence, particularly the evidence from the DoC officers and the conduct of the parties thereafter it is clear that it was agreed that DoC would hold the whale bones as custodian and, on the request of both iwi, allow both iwi to reach an agreement about what would happen with them. That was what the
Director-General initially admitted in their statement of defence and that is the factual position recorded in the ultimate decision letter which I address below. It was not DoC’s role to hold the jawbones on behalf of one iwi or the other. Neither was it contemplated that the Crown would make an allocation decision. That was for iwi to discuss and agree. To the extent some of the witnesses do not describe the agreement in these terms this is likely because they were not present when the agreement was actually reached or communicated. What matters was what Rangitāne and Ngāti Kuri/Ngāi Tahu asked DoC to do, and what DoC agreed to do. That is clear from the evidence, and it was also what DoC had been doing for approximately nine years in relation to the jawbone from the 2009 casting. The 2018 agreement also had the effect of reiterating the 2009 agreement.
[12] Notwithstanding what had been agreed in 2009, and then in 2018, there were no meaningful attempts at discussion between Rangitāne and Ngāti Kuri/Ngāi Tahu. Indeed, there is no evidence of any discussions at all. There were, however, wider disputes of some significance concerns overlapping claims of iwi at the top of the South Island which were continuing and which involved court proceedings. I will describe them below.
[13] After the second casting and the events described above, a third iwi, Ngāti Toa, wrote to DoC complaining that they had not been given the opportunity to participate as well as Rangitāne and Ngāti Kuri/Ngāi Tahu. There were email exchanges on that topic, although Ngāti Toa did not pursue its claim and did not participate in this proceeding. Mr Bradfield explains that over time he received regular contact from representatives of the various iwi interested in the jawbones and that the consistent approach he took was that DoC had been “asked to act as custodians of the jawbones until such time as we hear back from all three iwi that they have decided on an outcome for these taonga”.
[14] Mr Bradfield says that Ngāti Kuri/Ngāi Tahu nevertheless asked quite determinedly for the jawbones to be given to them. On 11 February 2021, Mr Kerei- Keepa wrote to DoC on behalf of Ngāti Kuri/Ngāi Tahu explaining that Ngāti Kuri/Ngāi Tahu was establishing a Whare Tāonga at Kaikoura following the
earthquakes where the jawbones could be displayed. In his email Mr Kerei-Keepa recorded the earlier agreement in the following terms:
There was talk on both occasions at the whale strandings that we should look to improve the relationship between Kaikoura Runanga and Rangitāne and the metaphor of “let the whale decompose as we build a relationship” was suggested.
[15] He also went on to say that Mr Bradfield had declined the request to be given the jawbones, that they would not be dictated to by DoC staff members, and they wanted both whale jaws dug up and ready for transportation by the end of the week of 15 February 2021.
[16]The Department’s reply was sent by Mr Grose. It said:
You are asking us to take action to give you the jaws before the relationship has been built. I stand with Phil’s position on not releasing the Taonga as it is clear that Ngāti Kuri and Rangitāne recognise that significant work was required to build up the relationship before any further action was taken. I support Phil’s position as I believe this removes [DoC] from any position of influence in regards to decision-making on these Taonga. By releasing these Taonga, before the relationship has been built, [DoC] would be acting in contravention of what was agreed by iwi on the beach. In looking after these Taonga I believe [DoC] are respecting its Treaty Settlement and Section 4 obligations to our Treaty Partner.
[17] Mr Bradfield then explains that during a pōwhiri on 13 February 2021 there was a side discussion between Ngāti Kuri/Ngāi Tahu and the then Minister of Conservation, the Hon Kiri Allen. Mr Bradfield and Mr Grose were also present. Mr Bradfield says that at the conclusion of that discussion the Minister advised that the “issue of the allocation of the whale jawbones from the 2009 and 2018 castings was an issue for the Crown to deal with”.
[18] DoC’s Director-General of Operations at that time was Michael Slater. He discussed the position with the Deputy Director-General, Michelle Hippolite. She explains that it was agreed that she would step in and be involved in the decision- making process “as well as signing off on the decision”.
[19] Ms Hippolite contacted both Ngāti Kuri/Ngāi Tahu and Rangitāne and two separate hui took place on 1 April 2021. She says that at the hui with Ngāti Kuri/Ngāi
Tahu they expressed their frustration that their request for the release of the jawbones had not yet been granted. The meeting with Rangitāne involved a broader discussion of the relationships involving Rangitāne, DoC, and Ngāti Kuri/Ngāi Tahu. Calvin Hart, one of the co-chairs of Rangitāne, says Rangitāne had no knowledge that they were being consulted in relation to a proposed decision about the jawbones and were unaware that they needed to advocate for their position. Peter Meihana, another senior trustee for Rangitāne, says the jawbones were discussed but not in terms of any proposed handover. I accept Rangitāne were not informed by DoC that DoC was proposing to make a decision to allocate the jawbones. I will address these findings in greater detail when considering Rangitāne’s claims.
[20] Following the hui Ms Hippolite said she conducted further research. She then briefed the Minister by memorandum dated 8 July 2021, although no decision to allocate the jawbones to Ngāti Kuri/Ngāi Tahu was then proposed in the written briefing. I do not know whether the Minister expressed any view at this stage.
[21] By letter dated 26 August 2021, however, Ms Hippolite wrote to Mr Kahu of Ngāti Kuri/Ngāi Tahu advising that DoC proposed to allocate the jawbones to Ngāti Kuri/Ngāi Tahu. The letter stated:
Te Papa Atawhai is proposing that the whale jawbone is provided to Ngati Kuri in recognition of your strong interest, and recognition of the interest of Rangitane, that mention is made of Rangitane’s association in a plaque (or the mechanism used to explain the significance of the jawbones).
[22] No such letter was sent to Rangitāne. Ms Hippolite explains Ngāti Kuri/Ngāi Tahu responded by being adamant that they had the dominant exclusive interest and that they would not be prepared to install such a plaque.
[23] Ms Hippolite then made the decision to give possession of the jawbones to Ngāti Kuri/Ngāi Tahu without the requirement for a plaque. Ms Hippolite communicated this decision in an internal email of 25 February 2022, asking for a decision letter to be formulated.
[24] Ms Hippolite then sent a decision letter, dated 11 March 2022, to Ngāti Kuri/Ngāi Tahu advising them of the decision and the reasons for it. Whilst the full letter needs to be considered to understand the reasons, it included the following:
As you know, Te Papa Atawhai holds jawbones from two sperm whales that washed ashore south of Ngāi Tahu’s takiwā boundary (south of Parinui o Whiti). The first washed ashore in November 2009, just north of the Awatere River. The second wash ashore on Marfells Beach in 2018. At the time of the strandings Te Papa Atawhai was asked to hold the whale jawbones by Ngāti Kuri and Rangitāne until discussions were held between the two iwi about resolving distribution of the jawbones.
…
Our view based on the respective Treaty settlement documents and discussions with both iwi is that Rangitāne’s interests south of Paranui o Whiti (the location of the jawbones) is more in the nature of an association. This is evidenced by Rangitāne’s Treaty settlement, which does not explicitly recognise Rangitāne’s interests in relation to taonga species in this area in a contemporary sense. Our proposal to recognise Rangitāne in a plaque when the whale jawbones are displayed has to provide a degree of recognition for Rangitāne, given their association with the area where the whales stranded.
[25] The letter advised that the jawbones would be given to Ngāti Kuri/Ngāi Tahu without the requirement for a plaque, however. The letter concluded by explaining that Rangitāne had not been informed of the decision, but would be told at a later time taking into account the timing of the uplifting of the jawbones. Mr Grose says that he requested that the letters to Ngāti Kuri/Ngāi Tahu and Rangitāne to be sent within a day of each other to be “transparent and open” but that this did not occur.
[26] I note that neither the decision letter, or the internal email that preceded it, made any reference to a power, under statue or otherwise, to make this decision.
[27] The area where the jawbones had originally been buried by DoC was within Rangitāne’s takiwā. Two rangers dug up the jawbones, put them onto a DoC trailer, and they were driven to the boat shed at DoC’s Kaikoura office. By email, dated 18 March 2022, Mr Grose said to Ms Hippolite that he was uncomfortable that DoC was then holding the whale bones in Kaikoura, which was in Ngāti Kuri/Ngāi Tahu’s takiwā, as “.… they were expecting us to use the appropriate tikanga to bring their taonga home”. Ngāti Kuri/Ngāi Tahu had earlier advised that appropriate rituals were required to exhume jawbones in accordance with tikanga. Mr Grose also said:
The bigger question for us now is that in terms of our relationship with Rangitāne as we need to advise them that the decision has been made to return the taonga to Ngāti Kuri and not to them and that we have uplifted the whale bone and are about to hand it over? I feel quite conflicted over this and feel they need to be advised as soon as possible.
[28] Ngāti Kuri/Ngāi Tahu uplifted the whale bones from DoC the following day. On 6 April 2022, Ms Hippolite distributed a first draft of a letter to Rangitāne. By that stage, however, the jawbones had already uplifted by Ngāti Kuri/Ngāi Tahu more than two weeks earlier. I accept that Ms Hippolite was not aware of this.
[29] On 26 April 2022 Mr Hebberd of Rangitāne wrote to DoC saying that they had heard through the “kūmara vine” that the jawbones had been uplifted from where they were buried within Rangitāne’s takiwā. Mr Hebberd said that he would be concerned that DoC had done this without first engaging with Rangitāne, particularly as they were tangata whenua. He asked if DoC could shed some light on the issue. Mr Grose responded on 26 April saying a decision had been made to hand the whale bones over to Ngāti Kuri/Ngāi Tahu, and he was sorry that they should find out in this manner, and that Ms Hippolite was in the process of writing to Rangitāne.
[30] A letter dated 26 April 2022 was then sent by the Department to Rangitāne advising Rangitāne of the decision. That letter was in largely the same terms as the letter advising Ngāti Kuri/Ngāi Tahu of the decision. I note that it recorded the earlier agreements reached in 2009 and 2018 in the same terms as quoted above.
Inconsistency with MMP Act
[31] Rangitāne argues that the Director-General’s decision is unlawful as it is inconsistent with the statutory requirements for holding whale bones under the MMP Act. As indicated, I agree with Rangitāne’s challenge on this basis and conclude that the Director-General’s decision was unlawful.
[32] The key point is that a permit is required under the MMP Act for a person to have possession of whale bones unless one of the stated exceptions apply. None of the exceptions apply here. At a superficial level, the MMP Act appears to cover permits for possessing live marine mammals only. But, on closer examination, it also
covers possessing dead mammals, and products and parts of dead mammals. Section 4 provides:
4 Restrictions on holding or taking marine mammals
(1)Notwithstanding anything in any other enactment, but subject to this Act, no person shall—
(a)hold a marine mammal in captivity; or
(b)take any marine mammal, whether alive or dead, in or from its natural habitat or in or from any other place—
without first obtaining a permit to do so from the Minister or from any person or persons authorised in that behalf by the Minister.
(1A) The Minister may from time to time, by notice, prescribe criteria and standards in respect of any kind of permit referred to in subsection (1); and the prescribed criteria and standards shall be deemed to form part of permits of that kind and shall be complied with accordingly.
(2)Subject to section 5(3) and to any regulations made under section 28, no person shall import into New Zealand or export from New Zealand any marine mammal or marine mammal product except pursuant to a permit issued under this Act.
(3)Nothing in subsection (2) shall apply with respect to any whale product the subject of an order made under section 96 of the Customs and Excise Act 2018.
…
(5)A permit shall not be required—
(a)by any person who finds or collects bones, teeth, ivory, or ambergris that have already separated naturally from a marine mammal if that person, as soon as practicable, notifies the Director-General or an officer of the find, and gives details of the time, place, and circumstances under which the find was made:
(b)by any person who finds any dead marine mammal or part of one and, if authorised to do so by an officer and acting pursuant to his directions, sends the mammal or part to the Department of Conservation or to any approved research establishment, laboratory, or public museum:
(c)by any person taking from or bringing into New Zealand any marine mammal product, being an ornament or an item for personal use or adornment made wholly or principally from any part or parts of a marine mammal, if the marine mammal product accompanies that person from or into New Zealand or comprises part of that person’s belongings and was in existence in a similar form as at the commencement of this Act.
(6)A notice under subsection (1A) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
[33] Section 9 of the Act makes it an offence to have possession of any marine mammal otherwise than in accordance with the Act. Section 2 provides that “marine mammal” includes any part of a marine mammal, and the definition of “take” includes to possess. So the requirement in s 4(1)(b) to not “take” any marine mammal, whether alive or dead, from any place includes taking possession of a part of that mammal, including the bones. That is confirmed by s 4(5) — the exceptions confirm that activities such as the finding of items such as bones or teeth do not require a permit provided notification is given, and that the possession of ornaments or adornments also do not need a permit.
[34] Permits may be granted by the Minister of Conservation under s 6. The requirements for permit applications are addressed by s 5. Relevantly, s 5(5) provides:3
(5)The Minister shall, before he grants a permit under section 6, publish, by notice in the Gazette, details of the application for that permit and shall, in the same notice, call for submissions in respect of that application to be made to him in writing by any person within 28 days after the date of publication of the notice: provided that nothing in this subsection applies to an application for a permit to take whalebone from dead whales.
[35] This subsection was added by an amendment to the Act on 25 November 1994. The Parliamentary debates record that the amendment was intended to facilitate the utilisation of whale bones for cultural purposes.4 Section 5(5) makes it clear that the act of taking whale bones from dead whales requires a permit.
[36] A number of creative arguments were advanced by the Director-General and Ngāti Kuri/Ngāi Tahu to avoid the apparent application of these provisions. I will address each in turn.
3 Emphasis added.
4 (10 June 1993) 535 NZPD 15730.
Definition of “take”
[37] First in the written submissions it was argued that Ngāti Kuri/Ngāi Tahu did not take a marine mammal in the manner contemplated by s 4(1)(b) as this subsection did not apply to the possession of whale bones. The argument was not pursued orally. It was primarily based on the definition of “take” in s 2 which is:
take includes—
(a)to take, catch, kill, injure, attract, poison, tranquillise, herd, harass, disturb, or possess:
(b)to brand, tag, mark, or do any similar thing:
(c)to flense, render down, or separate any part from a carcass:
(d)to attempt to do any act specified in paragraph (a) or paragraph (b) or paragraph (c)
[38] It was argued that the inclusion of possession in (a) did not apply because all of the matters specified in (a) referred to live marine mammals. Only paragraph (c) referred to activities with dead marine mammals. Alternatively, it was argued that simply receiving the jawbones was not sufficiently active to be within s 4(1). Reference was made to the approach to interpretation of the provisions in the Wildlife Act 1953 adopted by the Supreme Court in Shark Experience Ltd v PauaMAC5 Inc.5
[39] It is clear that the MMP Act regulates the possession of parts of a marine mammal, including particularly the bones, and that a permit is required to hold them. There is nothing in paragraph (a) of the definition of “take” that suggests that “possess” should be given a narrow meaning only applicable to live animals. The definition appears expansive. Section 4(1)(b) addresses taking any marine mammal “whether alive or dead” and the definition of “marine mammal” includes a part of such a mammal. The provisos in s 4(5) makes the position clear — the finding or collection of “bones, teeth, ivory, or ambergris” is allowed if they have already separated naturally, and the Director-General is advised as soon as practicable. Section 4(5)(c) then regulates the possession of ornaments or adornments made from parts of marine mammals. Moreover ss 4(2) and (3) regulate the importation of marine mammal and marine mammal products. These provisions make it clear that the permitting activities
5 Shark Experience Ltd v PauaMAC5 Inc [2019] NZSC 111, [2019] 1 NZLR 791.
are broad in character, and that permits are required for taking possession of the products of, or parts of, dead marine mammals — including whale bones.
[40] Any doubt about this would be removed by s 5(5) which makes it apparent that a permit is required to take whale bones from dead whales, albeit the application for the permit does not need to be published.
Exception in s 4(5)(a)
[41] The Director-General and Ngāti Kuri/Ngāi Tahu sought to argue that Ngāti Kuri/Ngāi Tahu’s receipt of the jawbones fell within the exception in s 4(5)(a). This was because Ngāti Kuri/Ngāi Tahu were simply collecting the bones which had separated naturally from the whales.
[42] I do not accept that. The jaws were not naturally separated from the deceased whales. On both occasions the jaws were separated from the carcasses before the burial of the carcasses and then transported to the separate site and separately buried. In 2018 the jawbone was removed by DoC staff using an excavator. I do not accept Mr Every-Palmer KC’s argument for Ngāti Kuri/Ngāi Tahu that the decomposition process that then occurred, where the flesh decomposed away from the jawbone, means that the exception in s 4(5)(a) applies. Neither could it be said in the present case that Ngāti Kuri/Ngāi Tahu then found or collected the jawbones — a decision to allocate them was made by DoC and then they were unearthed and driven to Kaikoura on a trailer where Ngāti Kuri/Ngāi Tahu took possession.
[43] I also do not consider that Ngāti Kuri/Ngāi Tahu’s possession falls within s 18 which provides:
18 Treatment or disposal of sick or dead marine mammals
…
(2) Dead marine mammals shall be disposed of in accordance with the advice of an officer or person authorised by the Minister, which advice shall be given, where practicable, after consultation with the occupier of the place where the marine mammal is found.
[44] The burial of the two whales in 2009 and 2018 would be in accordance with s 18(2). But the decision in 2022 to dig up the jawbones and to give possession of them to Ngāti Kuri/Ngāi Tahu does not fall within the contemplated reach of this subsection.
Source of power
[45] Mr Every-Palmer advanced a more sophisticated, but no more persuasive argument based on the source of power for these decisions. As indicated, a striking feature of the decision here is that no source of power for making it is identified in the contemporaneous documents. Mr Every-Palmer argued that the MMP Act did not give DoC the relevant powers to permit Māori to possess whale bones. The MMP Act created an offence and its provisions needed to be read down in this way to ensure compliance with the principles of the Treaty arising under s 4 of the Conservation Act. The true authorising provisions came under s 53 of the Conservation Act. In the exercise of those more general functions, read consistently with Treaty principles, DoC could engage with Māori in relation to whale bones and grant possession of whale bones. Ms Courtney also argued that the MMP Act was not the only source of power for Ms Hippolite’s decision.
[46] I do not accept that the MMP Act can be read down in this way or that the power to grant possession of whale bones can be found in the more general provisions of the Conservation Act. The MMP Act “covers the field” in terms of regulating the possession of whale bones.6 There is no room for the operation of more general functions or powers to control these activities, especially in a way that is inconsistent with the MMP Act.
[47] I also do not see the MMP Act as inconsistent with proper recognition of the customary interests of Māori in whales, whale bones, or other items. The Court of Appeal held in Ngāi Tahu Māori Trust Board v Director-General of Conservation (the Whales Case) that the MMP Act should be interpreted and administered to give effect
6 See Quake Outcasts v Minister for Earthquake Recovery [2015] NZSC 27, [2016] 1 NZLR 1 at [111]–[121].
to the principles of the Treaty.7 Its provisions allow the Crown to exercise the relevant kāwanatanga, or governance. The fact that a permit may be required for Māori to hold whale bones is not onerous. The facilitation of cultural possession has been addressed in s 5(5) by removing the requirement for public notification of permit applications. The Minister can also prescribe criteria under s 4(1A) to ensure that any appropriate culturally significant decisions can be made smoothly. The provisions are consistent with the principles of the Treaty that the Crown retain overall governance obligations, addressing an appropriate area of general policy in relation to marine mammals, but in a way that allows the provisions to be administered while accommodating cultural interests.
[48] I also do not accept the argument that the MMP Act is a penal Act, or that its interpretation should be driven by the offence provision. The restriction on activities requiring a permit under s 4(1) exists independently of the offence provision, and it addresses an area of policy concerning marine mammals. The regime extends to dead as well as live marine mammals, parts of marine mammals, and marine mammal products to facilitate the Act’s overall purpose to “… make provision for the protection, conservation, and management of marine mammals within New Zealand and within New Zealand fisheries waters”.8
Conclusion
[49] Given the above, the decision of Ms Hippolite was inconsistent with the MMP Act, it involved an error of law, and Ngāti Kuri/Ngāi Tahu’s possession of the jawbones is contrary to the requirements of the Act. A permit was, and still is, required for that possession. This ground of judicial review is upheld.
Procedural impropriety
[50] Rangitāne also challenged the decision on the basis that it was made in breach of the Rangitāne’s procedural rights.
7 Ngāi Tahu Māori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 (Whales Case) at 558.
8 Long title.
[51] The argument was pursued on the basis of the requirements for natural justice. Ms Radich argued that those requirements were flexible and dependent on the circumstances.9 The essential complaint was that Rangitāne had not been provided with notice and all the appropriate information in the decision-making process. Rangitāne was unaware that any decision-making process was being undertaken in relation to the allocation of the whale bones at all. They were kept in the dark and given no proper opportunity to engage or respond. By contrast Ngāti Kuri/Ngāi Tahu was fully informed of what was being contemplated, and they had an opportunity to address Ms Hippolite on her proposals.
[52] During the course of the hearing I suggested that one way of characterising Rangitāne’s procedural challenge was to approach it on the basis of the breach of legitimate expectation. Rangitāne’s legitimate expectation was that DoC would hold the jawbones as custodian, as agreed in 2009 and 2018, and DoC arguably breached this by not continuing to honour the agreements. As a consequence, I gave Rangitāne leave to file an amended statement of claim including breach of legitimate expectation as a pleaded ground of judicial review, and also allowed the parties to file supplementary written submissions.10 The existence of an agreement had been admitted by the Director-General and the grant of leave allowed the area of contest to be more clearly focused on.
The core complaint
[53] Whether it is seen through the lens of the principles of legitimate expectation, or simply through the lens of procedural fairness, for the reasons explained below I also uphold Rangitāne’s ground of judicial review in this respect.
9 Citing a number of authorities including Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA); Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA); Attorney- General v Zaoui [2005] 1 NZLR 690 (CA); and Isaac v Minister of Consumer Affairs [1990] 2 NZLR 606 (HC).
10 When filing the defence to the second amended statement of claim, and further submissions in accordance with the Court’s leave as granted in my minute of 24 February, further affidavits were also filed on behalf of Ngāi Tahu. No leave to file such evidence was sought either when I heard argument and ruled on the question of leave, or afterwards. I would not have granted leave for further evidence to be filed in the absence of an application being made, and the other parties being heard on that question.
[54] The key point is that Rangitāne was not told that DoC intended to make a decision to grant possession of the whale jawbone to Rangitāne or Ngāti Kuri/Ngāi Tahu. They were also not given the opportunity to comment on that idea nor on the proposal to allocate the jawbones to Ngāti Kuri/Ngāi Tahu. Neither were they informed of the decision until after Ngāti Kuri/Ngāi Tahu had been given possession. By contrast Ngāti Kuri/Ngāi Tahu was kept informed throughout.
[55] The decision-making process was initiated by Ngāti Kuri/Ngāi Tahu, and the intervention of the Minister. When the decision was then addressed it would have been appropriate for Ms Hippolite to deal transparently with Rangitāne. In particular it was incumbent upon her to tell Rangitāne what was being considered so that they could be heard on what was proposed.
[56] Ms Hippolite understood there was a need to consult with Rangitāne, but it appears that a decision was made not to clearly inform Rangitāne that an allocation decision was going to be made. Ms Hippolite’s email to Rangitāne dated 23 March 2021 raising the meeting simply said:
I am making contact to organise a face to face meeting to follow-up discussions relating to the Whale Jaw Bone and how the rights/interests of Rangitane are considered …
[57] I do not accept Ms Courtney’s submission that this email let Rangitāne know that DoC was going to make a decision to allocate the jawbones, and that they had an opportunity to put forward any information they wanted to have considered. This very brief email did not tell the Rangitāne representatives that it was proposed that DoC would make an allocation decision. The email to Ngāti Kuri/Ngāi Tahu was in similar terms, but Ngāti Kuri/Ngāi Tahu knew of the Minister’s intervention.
[58] In any event, and more importantly, when Ms Hippolite then met with Rangitāne on 1 April 2021 she did not say that such a decision was proposed. I accept the evidence of the Rangitāne witnesses that they were not aware, and were not told, that an allocation decision was to be made. At the hui they addressed broader matters including their relationship with Ngāti Kuri/Ngāi Tahu, with the jawbones being mentioned as part of that discussion. They accordingly did not address the allocation of the jawbones, why they should be given them, whether they should be given to
Ngāti Kuri/Ngāi Tahu, or whether an allocation decision should be made by DoC at all.
[59] In particular, both Messrs Hart and Meihana say they did not know that a decision to allocate the jawbones was being raised. Ms Hippolite did not dispute this aspect of Mr Meihana’s evidence in her affidavit. Neither does she explain why she did not advise Rangitāne at the hui that an allocation decision was proposed. She says that the jawbones were only one of the matters discussed and that she only briefly discussed “the idea of a spectrum of interests”. To be fair to Rangitāne Ms Hippolite needed to explain the Minister’s intervention, that DoC was now proposing to make an allocation decision as a consequence, and that Rangitāne was being asked to put forward its arguments in relation to allocation. In the absence of this being explained to Rangitāne there would have been no reason for them to understand they needed to put forward any such arguments. DoC had been holding the jawbones for years — in the case of the first whale for some 12 years. By contrast Ngāti Kuri/Ngāi Tahu knew that an allocation decision was being considered and had put forward full argument at their hui on 1 April 2021.
[60] Some time then went by following the two 1 April 2021 hui. On 26 August 2021 Ms Hippolite wrote to Ngāti Kuri/Ngāi Tahu outlining a proposed decision for comment. The proposed decision was that Ngāti Kuri/Ngāi Tahu would be given both jawbones, but with Rangitāne’s interests being recognised by Ngāti Kuri/Ngāi Tahu through a plaque. The proposed decision was not sent to Rangitāne for comment. Neither was Rangitāne informed that its interests were thought to be adequately addressed by such a plaque. The requirement for the plaque was then dropped following Ngāti Kuri/Ngāi Tahu’s objection. Rangitāne was not involved in that further exchange.
[61] There is no explanation in Ms Hippolite’s affidavit, or otherwise, why Rangitāne was not given the opportunity to comment on a proposed decision in the same way as Ngāti Kuri/Ngāi Tahu.
[62] When Ngāti Kuri/Ngāi Tahu were then advised of Ms Hippolite’s decision by letter dated 11 March 2022 Rangitāne was not informed at the same time. Although
Ms Hippolite does not explain why Rangitāne was not so advised, her letter to Ngāti Kuri/Ngāi Tahu stated:
This decision has not been communicated to Rangitāne. Te Papa Atawhai intends to advise Rangitāne at an appropriate time taking into account the timing of the whale jawbones being uplifted. We welcome a discussion about how the release will be undertaken, the timing and protocols required.
[63] It is unclear what discussions then occurred between DoC and Ngāti Kuri/Ngāi Tahu. But it is clear from the letter that a decision has been made to delay telling Rangitāne of the decision. Mr Grose says in his evidence that he requested that Rangitāne be sent a letter at approximately the same time, but that this did not occur.
[64] There is an available inference that Ms Hippolite did not want to inform Rangitāne of the decision until after the jawbones had been unearthed and removed from Rangitāne’s takiwā. I accept Ms Hippolite’s evidence that she was not aware that the jawbones had already been uplifted by Ngāti Kuri/Ngāi Tahu before she later sent the letter informing Rangitāne of the decision. But it is apparent that decisions were earlier made not to clearly tell Rangitāne that an allocation decision was contemplated, not to give them a copy of the proposed decision for comment, and to delay advising Rangitāne of the decision until after DoC had retrieved the jawbones from where they were buried in Rangitāne’s takiwā.
[65] In the absence of an alternative explanation in the Director-General’s evidence, and given what was said in the letter, I conclude that DoC decided that it was better not to clearly inform Rangitāne what was being proposed and decided throughout this process so as to minimise the prospect of Rangitāne objecting to the decision and taking steps to stop it from being implemented.11
[66] The unearthing of the whale bones from an area within Rangitāne’s takiwā without their knowledge plainly caused some discomfort for some DoC staff, as Mr Grose’s email to Ms Hippolite of 18 March 2022 suggests. When finding out about what had apparently happened, Mr Hebberd of Rangitāne wrote to DoC to say that this was a concern particularly as Rangitāne were the mana whenua. Mr Grose
11 I note that Rangitāne’s procedural complaints would be upheld irrespective of this finding.
responded by apologising. I note that Ms Hippolite says in her evidence that whilst the jawbones were buried in the takiwā of Rangitāne, and were removed from their takiwā when being released to Ngāti Kuri/Ngāi Tahu, that she considered the more important point in te ao Māori was where the whales had originally washed up. But that does not provide a reason for not dealing with Rangitāne in an open and transparent way.
Fairness/legitimate expectation
[67] I accept Ms Radich’s submission that the conduct involves a breach of DoC’s procedural fairness obligations.
[68] It is well established that the requirements of procedural fairness depend on the circumstances. The requirements are derived from the concept that natural justice is “fairness writ large and juridically”.12 They are reflected in s 27 of the New Zealand Bill of Rights Act 1990. Being given adequate notice and an opportunity to be heard are key principles of natural justice.13 Rangitāne’s complaint can be seen as analogous with cases where there is a breach of natural justice by failing to give a participant proper notice of a decision-making process,14 and with cases where a duty to consult arises and there has been a failure to provide the party with the information necessary for consultation.15
[69] The requirements for procedural fairness can heavily depend on what is at stake and what the decision-maker must actually decide. Here, Ms Hippolite was proposing to make an allocation decision that turned on the respective claims that iwi had to something they both regarded as taonga. Each wished to exercise kaitiakitanga in relation to the jawbones. The question of overlapping claims in this region was well known to be one of considerable concern to all iwi involved. The significance of these jawbones, and the claims made by Rangitāne, had been recognised by DoC in 2009 and 2018. To be properly informed about that decision, Ms Hippolite needed each iwi
12 Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 718.
13 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 at [11].
14 See, for example, Auckland Boxing Assoc Inc v New Zealand Boxing Assoc Inc [2001] NZAR 847 (HC) at [54].
15 See Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA) at 676.
to explain what their cultural association with the jawbones were. A failure to clearly disclose that such a decision was going to be made is a fundamental breach. For these reasons, I uphold Rangitāne’s challenge on natural justice grounds. I address whether it was appropriate for DoC to make an allocation decision at all below.
[70] It is often the case that the grounds of judicial review overlap, and that is so with the procedural grounds. The requirements for legitimate expectation seem to also apply in the present case. The elements of legitimate expectation were set out by the Court of Appeal in Comptroller of Customs v Terminals (NZ) Ltd in the following way:16
Where legitimate expectation is raised, the inquiry generally has three steps. The first is to establish the nature of the commitment made by the public authority whether by a promise or settled practice or policy. This is a question of fact to be determined by reference to all the surrounding circumstances. A promise or practice that is ambiguous in nature is unlikely to be treated as giving rise to a legitimate expectation in administrative law terms.
The second is to determine whether the plaintiff’s reliance on the promise or practice in question is legitimate. This involves an inquiry as to whether any such reliance was reasonable in the context in which it was given.
The third, and often most difficult part of the inquiry, is to decide what remedy, if any, should be provided if a legitimate expectation is established.
[71] Here, there was a promise made by DoC as part of the agreements reached in 2009 and 2018. These were initially admitted in the Director-General’s statement of defence and are demonstrated by the evidence. DoC agreed that it would hold the jawbones whilst discussions were held between the two iwi to resolve the question of distribution. The role of custodian was consistent with the kāwanatanga functions of the Crown under the Te Tiriti o Waitangi. I consider the arguments by the Director- General, and Ngāti Kuri/Ngāi Tahu, that the promises were not sufficiently clear to provide the basis for a legitimate expectation to be artificial. The promises are the basis upon which DoC had held the jawbones from 2009 and 2018. The decision to depart from this agreement was made following the Minister’s intervention and prompted a new process to reflect the change.
16 Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [125]– [127].
[72] I also accept that Rangitāne reasonably relied on that promise. The presence of reliance is important as it helps distinguish between legitimate expectation from one which is “a mere hope that a course of action will be pursued”.17 Rangitāne did not pursue its claim to possession at the time in 2009 or 2018, or thereafter, in reliance on DoC acting as custodian to enable iwi discussions to take place. Relying on DoC performing that role was reasonable in the circumstances. I note that after finding out about the allocation decision Rangitāne advanced a complaint about the decision in an application for an urgent remedies hearing before the Waitangi Tribunal. This was declined on the basis that an alternative remedy was available in the form of this judicial review proceeding.18 Rangitāne has also now pursued this claim.
[73] The remedy that should be granted as a consequence is more complex. Usually the party having a legitimate expectation must be consulted before the promise is withdrawn, and given an opportunity to make representations. In some cases, usually only regarded as special cases, relief in the form of the substantive outcome can be granted, but only if it does not usurp the function of the public body.19 That is an important point in the present case to which I return below.20 But I am satisfied on the application of these principles that the procedural challenge can be upheld on this basis as well, with the ultimate question being the relief that should be granted.
[74] For the above reasons I uphold Rangitāne’s claim that the decisions are unlawful for procedural impropriety and breach of legitimate expectation.
Breach of Treaty principles
[75] Rangitāne also argues that the Director-General’s decisions were made in breach of the principles of the Treaty of Waitangi. This was advanced as Rangitāne’s principal ground of challenge. Again, for the reasons outlined below, I uphold Rangitāne’s challenge in this respect.
17 Green v Racing Integrity Unit Ltd [2014] NZCA 133, [2014] NZAR 623 at [15].
18 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Rangitāne o Wairau (Wai 3209, 2 March 2023).
19 Comptroller of Customs v Terminals (NZ) Ltd, above n 16, at [155].
20 See [121]–[124] of this judgment.
[76] The arguments advanced raise more complex questions. Ngāti Kuri/Ngāi Tahu argued that any errors of the Director-General arising from the matters I have addressed above were largely technical, and that Rangitāne should be declined relief. This is because, it was argued, the Director-General’s allocation decision was clearly substantively correct. Ngāti Kuri/Ngāi Tahu argued they were entitled to the jawbones on a correct understanding of Treaty principles, particularly those recognised as a consequence of Ngāi Tahu’s Treaty Settlement,21 their well-established cultural connection with whales, and the fact that the strandings occurred in their takiwā. This argument can be conveniently dealt with at the same time as addressing Rangitāne’s arguments concerning Treaty principles.
[77] The Director-General’s obligation to comply with Treaty principles is well established. The decision of the Court of Appeal in the Whales Case c established that s 4 of the Conservation Act required the Director-General to make decisions in a manner consistent with the principles, including when making decisions under the MMP Act. Cooke P, in delivering the decision of the Court, said:22
Statutory provisions for giving effect to the principles of the Treaty of Waitangi in matters of interpretation and administration should not be narrowly construed. We accept that s 4 of the Conservation Act requires the Marine Mammals Protection Act and Regulations to be interpreted and administered to give effect to the principles, at least to the extent that the provisions of the Marine Mammals [Protection] Act and Regulations are not clearly inconsistent with the principles. Further than that it is unnecessary to go in this case, and some of the wider submissions made for the appellants do not call for express discussion, for the following reasons.
By the first Article of the Treaty of Waitangi there was ceded to the Queen absolutely what the English text set out in the First Schedule to the Treaty of Waitangi Act 1975 describes as Sovereignty and what the Maori version there also set out describes as Kawanatanga. Alternative English renderings sometimes given of the latter word are “complete government” (see Sir Hugh Kawharu’s version reproduced in New Zealand Maori Council v Attorney- General [1987] 1 NZLR 641, 662-3) or "governance". Clearly, whatever version or rendering is preferred, the first Article must cover power in the Queen in Parliament to enact comprehensive legislation for the protection and conservation of the environment and natural resources. The rights and interests of everyone in New Zealand, Maori and Pakeha and all others alike, must be subject to that overriding authority.
The second Article guaranteed to Maori what is described in the English version as “the full exclusive and undisturbed possession of their Lands and
21 Which is set out in the Ngāi Tahu Claims Settlement Act 1998.
22 Whales Case, above n 7, at p 558.
Estates Forests Fisheries and other properties which they may collectively or individually possess”. The corresponding references in the Maori version are to “te tino rangatiratanga” and “'taonga katoa”. The Kawharu translation speaks of “the unqualified exercise of their chieftainship over their lands, villages and all their treasures”. That article must extend to such sea fisheries as the tribes possessed.
…
…s 4 of the Conservation Act requires the Marine Mammals Protection Act and Regulations to be interpreted and administered to give effect to the principles, at least to the extent that the provisions of the Marine Mammals Protection Act and Regulations are not clearly inconsistent with the principles. Further than that it is unnecessary to go in this case, and some of the wider submissions made for the appellants do not call for express discussion …
[78] These principles were further reiterated by the Supreme Court in Ngāi Tai Ki Tāmaki Tribal Trusts v Minister of Conservation, which concerned the granting of concessions to guide tours on Rangitoto and Motutapu Islands.23 Both motu were within Ngāi Tai Ki Tāmaki’s takiwā. The Supreme Court upheld the challenge that there had been an error of law and a misunderstanding of the requirements of s 4. The Court said:24
We do not agree with the Court of Appeal that the errors were minor. Section 4 is a provision of fundamental importance in the exercise by DoC of its powers and responsibilities. The effective sidelining of s 4 in the decisions under challenge, in circumstances where the Ngāi Tai Trust’s interest was based on its mana whenua in relation to the Motu, was a failure to comply with this fundamentally important requirement. It was therefore an error of some consequence.
Good faith
[79] The first point is that I accept Rangitāne’s arguments that the decisions of the Director-General are unlawful as they were made inconsistently with the Director- General’s obligation to deal with Rangitāne in good faith.
[80] Rangitāne’s challenge to the procedures followed by DoC relied on DoC’s Treaty obligations, and in my view the obligation of good faith is the relevant principle of significance. In New Zealand Māori Council v Attorney-General (the Lands Case), the Court of Appeal described the good faith obligation as putting an onus on a Treaty
23 Ngāi Tai Ki Tāmaki Tribal Trusts v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368.
24 At [106].
partner to make informed decisions.25 An informed decision is one which is sufficiently informed of the relevant facts and law, and usually requires some consultation.26 Later, in New Zealand Māori Council v Attorney-General (the Forests Case), the Court of Appeal held that the good faith obligation extended to “consultation on truly major issues”.27 It further observed that presenting Māori with a fait acompli, which is a proposal that has already been decided, does not represent the principle of partnership the Treaty envisaged.28 As summarised by the Waitangi Tribunal, meaningful consultation requires approaching all interested groups, providing sufficient information, and giving an adequate opportunity for interested groups to present their views at hui.29
[81] The good faith obligation falls under the principle of partnership that is expressed through the necessary balancing of kāwanatanga and tino rangatirtanga.30 The Treaty relationship is not one in which one party is subordinate to another, but where each party must respect the authority of the other.31 Good faith conduct establishes the “general character of the relationship” between the Crown and Māori.32 Ms Hippolite herself summarised the good faith obligation in the following way:
The Crown and Māori must act towards each other reasonably and in good faith. These mutual duties of reasonableness and good faith describe the nature of the relationship between the Crown and Māori. They are the core of what has been described as the Treaty partnership. This principle is how the Crown should behave to Māori and Māori to the Crown.
[82] For the reasons outlined above in relation to Rangitāne’s procedural complaints, I accept that DoC did not engage with Rangitāne in relation to a matter of significant cultural importance to them, involving something that DoC knew they regarded as taonga, in an open and transparent way. DoC did not explain that an allocation decision was now proposed notwithstanding the earlier agreements reached
25 New Zealand Māori Council v Attorney General [1987] 1 NZLR 641 (CA) (Lands Case) at 683.
26 At 683.
27 New Zealand Māori Council v Attorney-General [1989] 2 NZLR 142 (CA) (Forests Case) at 152.
28 At 152–153.
29 Te Rōpū Whakamama i te Tiriti o Waitangi | Waitangi Tribunal The Napier Hospital and Health Services Report, above n 26, at 73.
30 Te Rōpū Whakamama i te Tiriti o Waitangi | Waitangi Tribunal Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai 2575, 2023) at 27.
31 At 28.
32 Te Rōpū Whakamama i te Tiriti o Waitangi | Waitangi Tribunal The Napier Hospital and Health Services Report (Wai 692, 2001) at 59.
in 2009 and 2018, or that Rangitāne needed to outline why the jawbones should be given to them, or not given to Ngāti Kuri/Ngāi Tahu. DoC was proposing to allocate to another iwi something Rangitāne regarded as taonga, and notwithstanding its earlier agreement to hold the jawbones as custodian only to allow the iwi to reach agreement on that question. DoC then further favoured Ngāti Kuri/Ngāi Tahu by giving them notice of a proposed decision for comment, whilst not doing so for Rangitāne. That proposed decision diminished Rangitāne’s interests to a suggested obligation to recognise them in the form of a plaque, and then Ms Hippolite accepted Ngāti Kuri/Ngāi Tahu’s argument that even this should not occur. Rangitāne was then not advised of the decision until after the jawbones had been unearthed from Rangitāne’s takiwā, relocated to a place within Ngāti Kuri/Ngāi Tahu’s takiwā and then uplifted by Ngāti Kuri/Ngāi Tahu.
[83] At the heart of the obligation of good faith is transparency, particularly when significant decisions are being made affecting cultural interests. I accept that DoC’s decision-making process involved a breach of Treaty principles, and accordingly a breach of s 4 of the Conservation Act, and it is unlawful for this reason. These findings can also be seen as buttressing the findings earlier made that the Crown acted with procedural impropriety.
Rangitāne’s Treaty Settlement rights
[84] Rangitāne also argued that the decision breached DoC’s Treaty settlement based obligations to Rangitāne.
[85] For the reasons outlined above, the relevant decision to allow a person to hold whale bones involves the issuing of a permit under the MMP Act. There is no doubt that such a permit can be granted to allow a person to hold whale bones for cultural reasons. Given s 4 of the Conservation Act, such an allocation decision would need to be made consistently with the principles of the Treaty. But a significant issue in the present case is whether the power in s 6 of the MMP Act, applied consistently with s 4 of the Conservation Act, allows the Minister to make what is in substance an allocation decision when there are competing Māori claimants to something both regard as taonga. I return to that issue below as I consider it of overriding significance.
[86] For present purposes, however, it is appropriate to address Rangitāne’s arguments that the decision that was made by the Director-General was inconsistent with Rangitāne’s rights arising from its cultural interests as recognised by its Treaty settlement.
[87] Ms Radich referred to the association that Rangitāne have with whales, identifying them as being of spiritual and cultural significance. They are described in the affidavit of Safari Hynes. She also referred to DoC’s acceptance of Rangitāne’s interests at the time in 2009 and 2018. Ms Radich also referred to a paragraph in the Conservation General Policy which sets out that tangata whenua would be consulted on specific proposals which involved places or resources of spiritual or historical and cultural significance to them.
[88] In responding to Rangitāne’s arguments the Director-General, but more specifically Ngāti Kuri/Ngāi Tahu, placed specific emphasis on the terms of the Treaty Settlement between the Crown and Ngāi Tahu. This includes the recognition of the special significance that Ngāti Kuri/Ngāi Tahu place on whales, and the identification of Ngāi Tahu’s takiwā. The location of both of the strandings were within Ngāi Tahu’s takiwā, and the obligations arising under the Treaty Settlements were advanced as an effective answer to Rangitāne’s case.
[89] There is no doubt that Ngāi Tahu has very close cultural associations with whales. That was recognised in the Whales Case.33 It is also fully explained in Ngāi Tahu’s evidence.34 That association is reflected in Ngāi Tahu’s settlement as set out in the Ngāi Tahu Claims Settlement Act (the Settlement Act). It is of significance that these two castings occurred in the area that is recognised as within Ngāi Tahu’s takiwā, as recognised by s 8 of the Settlement Act, albeit close to the border of that area. The takiwā is not only defined in the Settlement Act, but it has also been determined by the Māori Appellate Court in Re a claim to the Waitangi Tribunal by Henare Rakiihia Tia.35
33 Whales Case, above n 7.
34 The second whale that was cast ashore, named Kaha, was well known to Ngāti Kuri/Ngāi Tahu through their whale watch activities.
35 Henare Rakihia Tau v R (1990) 4 Te Waipounamu Appellate MB 672 (4 AP 672).
[90] There is a Conservation Protocol that forms part of Ngāi Tahu’s settlement promulgated under s 282(4) of the Settlement Act. It is established by Gazette Notice.36 The area under that protocol corresponds to Ngāi Tahu’s takiwā. It relevantly provides:
4.Cultural Materials
4.1For the purpose of these protocols, cultural materials are defined as:
…
(ii) materials derived from animals, marine mammals or birds,
to the extent to which the department holds and is responsible for them, and which are important to Ngai Tahu in maintaining their culture.
4.2Current legislation means that generally some form of concession or permit is required for any gathering of cultural materials.
4.3The department will:
…
(b)consider request from members of Ngai Tahu Whanui for the customary use of cultural materials in accordance with the appropriate legislation.
(c)agree, where reasonably practicable, for Ngai Tahu to have access to cultural materials which become available as a result of departmental operations such as track maintenance or clearance or culling of species.
(d)consult with Te Runanga in circumstances where there are competing requests from non-NgaI Tahu persons or entities for the use of cultural materials, for example for scientific research purposes, to see if the cultural and scientific or other needs can be reconciled before the department makes a decision in respect of those requests.
[91] There is also a Beached Marine Mammal Protocol that has been agreed between Ngāi Tahu and DoC, which has a number of relevant provisions. This protocol applies throughout all of Ngāi Tahu’s takiwā in the South Island. Clause 3.2 provides:
36 “Ngāi Tahu Claims Settlement Act 1998: Notification of the Issue of Protocols” (9 August 2001) 84 New Zealand Gazette 2137 at 2171.
3.2 Mätäpono Pänga Tumu Whakahaere –
Partnership Management Principles
The working relationship between Ngäi Tahu and the Department of Conservation in the management of beached marine mammals shall be guided by the following principles of partnership:
· That the Department of Conservation acknowledges the cultural, spiritual, historic, and traditional association of Ngäi Tahu Whänui with marine mammals and the rights to exercise it’s rangatiratanga and kaitiakitanga over marine mammals secured by the Treaty of Waitangi, confirmed by the Ngäi Tahu Claims Settlement Act 1998 and required to be given effect to by the Conservation Act 1987.
· That Täonga Rünanga o Ngäi Tahu acknowledges the Department’s statutory responsibility for marine mammals in the Ngäi Tahu rohe under the Marine Mammals Protection Act 1978 and the Conservation Act 1987.
…
[92] There are also detailed terms for dealing with the procedures to be followed for strandings, and these include dealing with items from deceased marine mammals. It provides:
5.4.2 Permits, storage and distribution of taonga and materials
The future of taonga and materials from the marine mammal(s) should be agreed to, such as, where these will be stored and distributed to.
The Department should work with the appropriate rünanga to ensure the proper permits are gained for the taonga extracted and assist in the storage of these (A standard permit is included in Appendix D).
…
Other materials being distributed to individuals and groups, such as artists and carvers, or as taonga and customary koha will need to be permitted under the Marine Mammals Protection Act. The particular rünanga involved should work with the Department to ensure the proper approvals are gained to do so. This should follow the cultural materials allocation processes of the particular rünanga and conservancy where appropriate.
[93] The provisions of the formal Conservation Protocol, and then the less formal Beached Marine Mammal Protocol do not promise that DoC will grant Ngāi Tahu possession of whale bones, however. Whether such an allocation is made is still subject to DoC exercising its powers and functions in a manner consistent with the MMP Act and the Conservation Act. That is clear from cl 4.3(b) of the Conservation Protocol and para [3.2] of the Beached Marine Mammal Protocol. That reservation is
appropriate, and consistent with the principles of the Treaty. The terms of cl 4.3(d) of the Conservation Protocol also recognise that there may be other claims or interests that are relevant to such functions. Whilst this clause may not have had competing claims by other iwi as its central focus, such competing claims fall within its terms. So, the terms of the protocol itself recognise that balancing decisions may need to be made by DoC. There are no promises of allocation.
[94] I note that both protocols clearly refer to the need to issue and hold a permit. Yet it does not appear that the need for a permit was considered during Ms Hippolite’s decision-making process. This is surprising and might suggest that these protocols were not considered in her decision-making process.
[95] The same conclusions arise in relation to the principles of Rangitāne’s settlement relied upon by Ms Radich. Its protocols also form part of the settlement legislated by the Ngāti Apa ki te Rā Tō, Ngāti Kuia, and Rangitāne o Wairau Claims Settlement Act 2014. It also has a protocol area of a similar kind. It expressly extends to marine mammals, including whales. The two strandings here occurred outside this protocol area. Ms Radich sought to rely on the following paragraph of Rangitāne’s protocol:
9.12 In areas of overlapping interests, Rangitāne will work with the relevant iwi and the Department to agree on a process to be followed when managing marine mammal strandings.
[96] I accept the argument by Ms Courtney and Mr Every-Palmer that this addresses overlapping claims within Rangitāne’s protocol area, and that it does not regulate overlapping claims outside that area. I am less convinced by the argument that it does not apply as these were not “strandings” as the whales had already died when they came ashore.
[97] In Rangitāne’s settlement, however, there is a further area described as an “area of interest”. I accept that that is an area where it is recognised that Rangitāne have cultural interests. There is no express protocol machinery to apply to that area that Rangitāne can rely on. Nevertheless it is a formal acknowledgement by the Crown that there are cultural interests in this area. The two strandings here were within Rangitāne’s interest area.
[98] Treaty settlements, including those that have been entered by both Ngāi Tahu and Rangitāne, also do not codify the full extent of the Treaty rights, or customary interests of the relevant Māori group. Such settlements, and the legislation that enacts them, create important legal obligations on the Crown in association with remedying Treaty breaches. But they are, by their very nature, compromises. Most relevantly, the fact that Ngāi Tahu’s Treaty Settlement, codified by legislation, identifies the area of its takiwā, and gives it rights such as those reflected in its Conservation Protocol, does not mean that Rangitāne have no relevant cultural rights protected by the Treaty. The fact that the area of Ngāi Tahu’s takiwā has also been the subject of a decision by the Māori Appellate Court equally does not mean that there are no legitimate claims by other Māori groups within that area.
[99] This point has now been reiterated by a series of decisions of the Waitangi Tribunal and the courts. In 2008, the Tribunal released Te Tau Ihu o te Waka a Maui, which were reports into a series of claims by different iwi, hapū, and whānau in relation to the northern South Island.37 This report recognised the overlapping of the various groups and criticised the Crown for treating Ngāi Tahu as having a kind of exclusivity within the takiwā that had been identified. The Tribunal said:38
We find that the Crown has not breached its Treaty obligations to Te Tau Ihu iwi by the passing of, or the content of, the Te Runanga o Ngai Tahu Act 1996 or the Ngai Tahu Claims Settlement Act 1998. However, in dealing with Ngai Tahu exclusively within the Ngai Tahu takiwa, the Crown has breached the principles of active protection and equal treatment, and Te Tau Ihu iwi have been prejudiced as a result. We strongly recommend that the Crown take urgent action to ensure that these breaches do not continue. If the Crown does not accept this recommendation, it will not only perpetuate the breaches set out above but will also add unnecessary and increased tension to the relationships between Ngai Tahu and Te Tau Ihu iwi.
[100] Before the Tribunal report, in Ngāti Apa Ki Te Waipounamu Trust v R, the Court of Appeal dealt with a decision striking out a proceeding that was inconsistent with the Māori Appellate Court decision. In that context Elias CJ said:39
The acknowledgment by the Crown that it recognised Ngai Tahu as holding rangatiratanga within the takiwa defined by s 5 of the Te Runanga o Ngai Tahu Act 1996 is not expressed to exclude the claim of any other tribal grouping
37 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te Tahu Ihu o Te Waka a Maui: Report on Northern South Island Claims (Wai 785, 2008).
38 At 1358.
39 Ngāti Apa Ki Te Waipounamu Trust v R [2000] 2 NZLR 659 (CA) at [50]. See also [96] and [101].
outside Ngai Tahu to mana or rangatiratanga in relation to lands within the takiwa, if not inconsistent with the recognition accorded to Ngai Tahu. Given the concession of counsel for Ngai Tahu that it is theoretically possible for two tribal groups to have rangatiratanga in respect of the same district, there is no necessary implication of exclusivity.
[101] This view was then further upheld in two later decisions of the Court of Appeal.40
[102] Then, in Te Runanga o Ngāi Tahu v Attorney-General, Ngāi Tahu sought to judicially review the decision of the Waitangi Tribunal in Te Tau Ihu o te Waka a Maui on the basis that it was inconsistent with the Māori Appellate Court’s determination as to Ngāi Tahu’s takiwā.41 This was declined. McKenzie J referred to the three Court of Appeal decisions and held:42
… I consider that all three Court of Appeal decisions must be taken to have decided that the Maori Appellate Court decision would not be binding on the Tribunal on its consideration of the Te Tau Ihu claims within the Ngāi Tahu takiwa. It has been common ground among all courts and tribunals which have considered the question that the Te Tau Ihu iwi claims arising from grievances within the takiwa had to be resolved. … The Court of Appeal has also recognised that, in the passages from all three decisions I have cited. It seems highly unlikely that the Court of Appeal would, on three occasions, have referred to the possibility of Te Tau Ihu iwi claims, if those claims were doomed to failure because of the binding effect of the Maori Appellate Court decision. The possibility that the Runanga Act or the Settlement Act might give rise to a grievance claim was expressly upheld. A grievance could only be justified if the legislation had prejudicially affected the Te Tau Ihu iwi. That could be so only if the Tribunal considered that the Te Tau Ihu iwi or any of them had interests within the takiwa before the legislation was passed …
[103] The same analysis applies here. The fact that these whales were cast ashore in an area of Ngāti Kuri/Ngāi Tahu’s takiwā, as defined by the Māori Appellate Court and the settlement legislation, does not give Ngāti Kuri/Ngāi Tahu a right to the taonga from those whales, and neither does it mean that there is no legitimate claim by Rangitāne. Rangitāne’s claims must also be respected under Treaty principles. So, I reject Mr Every-Palmer’s arguments that these matters demonstrate the breaches made
40 Te Runanga o Ngāi Tahu v Waitangi Tribunal [2002] 2 NZLR 179 (CA); and Ngāti Apa Ki Te Waipounamu Trust v Attorney General [2004] 1 NZLR 462 (CA).
41 Te Runanga o Ngāi Tahu v Attorney-General HC Wellington CIV-2007-485-2602, 14 August 2009.
42 At [62].
by DoC are technical only, and that the answer was clear. To the extent that Ms Hippolite’s decision applied that approach, it is wrong in law.
[104] I also accept as a matter of fact that Rangitāne have legitimate cultural interests in both of the jawbones based on: their evidence; their conduct at the time; the fact that this area was recognised as an area in which they have interests under their Settlement; and their interests being recognised by the decisions DoC made in 2009 and 2018. I also accept that Ngāti Kuri/Ngāi Tahu have very strong cultural interests which are well established. I am not in any position, however, to further evaluate the extent of these interests, or to adjudicate on the comparative strength of the overlapping claims. The materials provided to the Court appear to record cultural interests of Ngāti Kuri/Ngāi Tahu more extensively. But I do not know whether this is a reflection of greater cultural interests, or greater advocacy abilities.
The resolution of overlapping claims
[105] Rangitāne argue that the Crown was obliged to follow the principles of the Treaty of Waitangi, partly due to the statement of General Policy established under the Conservation Act. DoC did not have legal authority to make a decision as to the proprietary and possessory rights in the jawbones in light of the claims by Rangitāne and Ngāti Kuri/Ngāi Tahu, other than under the MMP Act, and the decision was ultra vires. It was also an unreasonable decision given the custodian agreement, Rangitāne’s recognised spiritual and cultural interests, and the authorities I have addressed above in relation to overlapping claims in the top of the South Island.
[106] Rangitāne partly pursued its claims in this respect under the ground of unreasonableness. In my view it is not necessary to apply that ground of judicial review. The arguments are able to be addressed in a more precise way — whether the decision was wrong in law given the statutory power exercised under the MMP Act, and the constraints on that power arising through s 4 of the Conservation Act and the principles of the Treaty.
[107] As I have indicated above, any decision to allow an iwi to have possession of whale bones ultimately requires a permitting decision under the MMP Act. What was proposed here was an allocation decision in the context of competing claims. It can
be seen as making a decision on who held customary title to these taonga. But there is nothing in the MMP Act that would guide such a decision. The substance of any principles to guide such a decision-maker could only come from s 4 of the Conservation Act, and in particular the principles of the Treaty. The question arises, therefore, whether the Crown acted consistently with the principles of the Treaty in making such an allocation decision.
[108] At the time of the castings in 2009 and 2018, both Rangitāne and Ngāti Kuri/Ngāi Tahu expressed their cultural claims to the jawbone of each of the whales. In my view the DoC officers acted in an appropriate way at that time by contacting both Rangitāne and Ngāti Kuri/Ngāi Tahu about the castings, and then in stepping back and allowing each group to engage in appropriate customary processes. The relevant officers are to be commended for the manner in which they dealt with the situation. Both Rangitāne and Ngāti Kuri/Ngāi Tahu were conscious that there was a competition between them. They also approached their differences appropriately by agreeing that the appropriate way forward was to ask DoC to take possession of the jawbone both in 2009, and then again in 2018, to enable further discussion to occur between them as to their claims. As one of the witnesses put it, that ensured that the mana of the whales was respected.
[109] As I have indicated above, DoC’s agreement to take the jawbones into its possession, and bury them in conservation land for that purpose, represented an exercise of kāwanatanga under Treaty principles. The claims that each iwi made to the jawbones as taonga involved a claim to be the kaitiaki. This involved the exercise of rangatiratanga by each iwi protected by art 2 of the Treaty. They accordingly also raised matters of tikanga. The kāwanatanga function then adopted by DoC maintained the peace and allowed the iwi to continue to exercise rangatiratanga, including through the processes that they would then follow.
[110] There is no evidence before the Court of any meaningful processes being followed by the two iwi to resolve their differences and the overlapping claims. The litigation I have referred to above demonstrates that overlapping claims have generally been a matter of controversy in this region. But it seems to me that the suggestion made in 2021 that DoC should make an allocation decision was inconsistent with the
previous role that DoC had agreed to undertake. It also invited DoC to engage in a process that was not consistent with the principles of the Treaty.
[111] In particular, it had been agreed that the resolution of the claims would be addressed by the iwi themselves. That process would involve an exercise of rangatiratanga by the iwi. DoC’s role was limited to kāwanatanga functions. The suggestion that DoC should itself become the decision-maker — adjudicating on the claims to customary title made by Ngāti Kuri/Ngāi Tahu and Rangitāne — involved a fundamentally different role. If both iwi agreed that DoC would be the decision-maker as that would respect the rangatiratanga of both iwi. But, in the absence of that agreement, DoC would need to be certain that the allocation decision that it was making was consistent with its role and tikanga Māori.
[112] Baldick v Jackson was one of New Zealand’s first authorities to effectively recognise tikanga. It concerned the entitlement to a dead whale recovered in Cook Strait.43 Stout CJ concluded that the English statute law should not be applied in New Zealand given that the customary practices of Māori in relation to whales were protected by the Treaty of Waitangi.44 This meant that the statute did not apply. Similarly here, whilst the MMP Act clearly does authorise the granting of permits to hold whale bone, it does not contemplate the Minister addressing, and then ruling, on a dispute between Māori as to customary title. That again is a matter to be addressed by the customs preserved by the Treaty given the binding effect of the principles through s 4 of the Conservation Act.
[113] It is true that much time had gone by without tikanga consistent processes providing an answer. But, the High Court explained the application of tikanga to overlapping claims to land, and both the impact of apparent delay and the role of the courts in Ngāti Whātua Ōrākei Trust v Attorney-General. Here, the Court had the considerable advantage of evidence from a number of experts in tikanga. Palmer J said:45
43 Baldick v Jackson (1910) 30 NZLR 343.
44 At 334–335.
45 Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 at [362]–[364] (footnotes omitted).
Tikanga governs matters of process as well as substance. There are ways of resolving disputes about tikanga which are consistent with tikanga and ways which are not. Full discussion by kaumātua on a marae, abiding by the kawa of the marae and resulting in consensus, can be consistent with tikanga. Recourse to courts without agreement between the parties is not obviously tikanga-consistent. Only one of the tikanga experts who gave evidence here says that it is. Some say recourse to courts is inconsistent with their tikanga. Others say that recourse to courts is far less appropriate or preferable than tikanga-consistent processes.
As a matter of tikanga, of course, tikanga-consistent dispute resolution process must be preferred to non-tikanga-consistent court resolution of disputes about tikanga. Indeed, resolution of a dispute about tikanga by tikanga-consistent processes may be more enduring than a ruling by a court, as Tāmati Kruger’s evidence about resolution of the Takamore dispute illustrates.
Tikanga-consistent dispute resolution may involve several or many discussions on marae over a long period. Tikanga may require a discussion of a dispute over a long period of time compared to Pākehā dispute resolution. Those involved will determine how long that is, depending on the circumstances. As Mr Mahuika submits, the time that it takes depends on the context. A court must be wary of claims by one group or another that resolution is not possible in the time taken so far. Tāmati Kruger, the eminent pūkenga from Tūhoe, says that a tikanga-consistent process “cannot be exhausted”. He said “we live in a different time zone to Pākehā culture … We think and operate in generations. That’s how long these things take.” On the other hand, Ngarimu Blair’s evidence is that the risk involved in a Court determining mana whenua is “a risk that we, as great as it is, have determined as an iwi to undertake”. Seeking a determination before the Court is a “last resort” in the absence of resolution of the dispute by a tikanga-consistent process.
[114] This must also be true of attempted resolution of overlapping claims to taonga and the suggested resolution of such claims by decision of public officials rather than the Court.
[115] There has been no evidence presented to this Court to suggest that the allocation of the jawbones to one or other party was required as a matter of tikanga. Neither was such evidence before Ms Hippolite. I accept Ms Radich’s argument that Ms Hippolite did not substantively address tikanga. The arguments to this Court, and to Ms Hippolite, were limited to the implication of the Treaty settlements and to the protocols. For the reasons I identified above, they do not provide the answer.
[116] I do not accept Ms Courtney’s argument that Rangitāne’s claims should be dismissed as the Crown is not bound by tikanga in and of itself, although a reasonable
decision-maker must have regard to it.46 The Crown did not have authority to make a decision that overrode the iwi to iwi processes in the absence of applicable statutory provision giving it power to do so.
[117] I also do not accept Ms Courtney’s submission that the Crown was required to make a decision concerning a significant taonga which were the subject of competing, and complex, customary interests which called for a decision which might go against the views expressed by one group. The Crown was not obliged to make a decision allocating the taonga at all, and its decision to do so was not consistent with the principles of the Treaty. Neither do I accept that the decision can be justified on the basis that Ms Hippolite made a nuanced decision when there were overlapping claims. Ms Hippolite ultimately decided to allocate both jawbones to Ngāti Kuri/Ngāi Tahu because she saw their claim, as recognised by the Treaty Settlement protocols, as stronger. It was no more nuanced than that. The further suggestion that Rangitāne’s interests could be recognised by a plaque, a proposal then disposed of because of Ngāti Kuri/Ngāi Tahu’s objection, also cannot fairly be characterised as nuanced.
[118] In addition, I do not accept Mr Every-Palmer’s argument that this case is comparable to Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd where the Court concluded that refusing to adjudicate on divergent iwi claims about their relationship with affected taonga is the antithesis of the decision-maker’s statutory duty.47 In that case, the grant of a resource consent involved the allocation of the resource and the statute required the competing claims by iwi to be addressed. But here the statute does not require there to be an allocation decision between competing claimants to taonga. The jawbones could have been left where they were buried by DoC in 2009 and 2018. The only relevant legal principles that govern the position are those of the Treaty arising as a consequence of s 4 of the Conservation Act.
[119] The question of the entitlement to the jawbones remains a question that should be answered by tikanga consistent processes which are involved in the exercise of rangatiratanga. That means that it must be answered by the iwi themselves, or by a
46 Relying on Ngāti Whātua Ōrākei Trust v Attorney-General, above n 44, at [570] and [598].
47 Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768, [2021] 3 NZLR 352 at [73].
process that they agree. If tikanga itself does not provide the answer, a tikanga consistent dispute resolution processes may do. But it is not for the Crown to adjudicate on these matters in the absence of agreement unless it can be shown to be consistent with the principles of art 2 of the Treaty.
[120] DoC’s functions arise under the MMP Act and the Conservation Act. As the Court of Appeal explained in the Whales Case, these are kāwanatanga functions. In terms of the MMP Act there are no remaining issues in relation to marine mammals that remain to be addressed. Both of the whales have been buried in accordance with s 18(2). The remaining functions arise as a consequence of s 4 of the Conservation Act, and the principles of the Treaty. Under those principles the Crown is obliged to respect the rangatiratanga of Rangitāne and Ngāti Kuri/Ngāi Tahu. If the iwi cannot resolve their differences themselves, it may be that the exercise of kāwanatanga will mean that the jawbones should remain in the possession of DoC simply to maintain the peace. But, in the circumstances of this case, I do not see it as the appropriate function of the Crown to make a decision allocating the taonga, and determining who should be the kaitiaki, through a permitting decision under the MMP Act or otherwise.
Remedy for breach of legitimate expectation
[121] The same position is reached if the case is addressed in accordance with the principles of legitimate expectation. DoC promised in 2009 and 2018 to hold the jawbones as custodian to allow the discussions to continue between the iwi. Rangitāne had a legitimate expectation that this would continue and that allocation was a matter to be resolved between the iwi.
[122] Usually a public body must remain free to depart from a previous promise. If a court were to find that it cannot, this could usurp the public body’s functions arising under the statute it must administer. That is why a substantive remedy is usually not available. But the appropriate remedy will depend on the circumstances, and what the relevant legal functions and obligations are. As explained by the Court of Appeal in Green v Racing Integrity Unit Ltd:48
48 Green v Racing Integrity Unit Ltd, above n 17, at [40] (footnotes omitted).
While counsel did not address the issue, a judicial decision having the effect of allowing [what was claimed] would ultimately award a substantive benefit as a remedy for breach of a legitimate expectation. Such a remedy may properly be awarded in some limited circumstances, given that the principle of legitimate expectation holds public authorities to their undertakings, and it is conceivable that an authority might have undertaken to bring about some substantive result. However, we reiterate this Court’s recent observation that “relief in the form of a substantive outcome is rarely, if ever, granted.” Partly it will be rare because, as we have already noted, an undertaking cannot be implemented where it would interfere with a public authority’s statutory duty, or where there is a satisfactory reason not to implement it. To uphold an expectation of a course of conduct regardless of these well established limits “would be to usurp the function of the person or body carrying out the relevant public function.”
[123] So, it will depend on what the public body’s statutory duties and functions are. Here, the promises made in 2009 and 2018 were consistent with both DoC’s functions under the MMP Act and its obligations under s 4 of the Conservation Act. To depart from the agreement, however, was not consistent with s 4. This is not a situation where holding DoC to its original promise usurps its public function. Rather, holding DoC to its original promises upholds its legal responsibilities, and the legal limits of its role. So, this can be seen to be a rare case where, because of the public body’s legal obligations, a substantive legitimate expectation should be upheld.
[124] It is also to be emphasised that whilst this involves giving effect to the substance of the promise made in 2009 and 2018, that promise was only a procedural one. It was a promise that the procedure to be followed for the allocation question was to be an iwi to iwi one, with DoC’s role limited to being custodian to allow that process to be followed. It is not a promise of a substantive outcome.
Conclusion
[125] For the above reasons I uphold Rangitāne’s claim that the decision by DoC to make an allocation decision, and then to allocate to Ngāti Kuri/Ngāi Tahu, was a breach of Treaty principles under s 4 of the Conservation Act, as well as a breach of the legitimate expectation that Rangitāne had that the procedures agreed in 2009 and 2018 would be followed to resolve the question of allocation.
Remedy
[126]Given the above findings it is necessary to address the question of remedy.
[127] I have already addressed Ngāi Tahu’s argument that remedies for any breach should be withheld from Rangitāne on the basis that DoC’s substantive decision was the correct one. For the reasons I have addressed, that is not so.
[128] The remedy provided by the Court must be an appropriate one given the findings that have been made. In summary the Court has found:
(a)The Director-General’s decision was unlawful, as a decision granting Ngāti Kuri/Ngāi Tahu possession of the whale bones needed to be one made by the Minister of Conservation under s 6 of the MMP Act to grant Ngāti Kuri/Ngāi Tahu a permit. For the same reasons Ngāti Kuri/Ngāi Tahu’s possession of the jawbones is presently unlawful.
(b)DoC’s decisions were made with procedural impropriety as they involved a breach of natural justice and a breach of Rangitāne’s legitimate expectations.
(c)The Director-General’s decisions are unlawful as they are inconsistent with the principles of Treaty, binding on the Director-General as a consequence of s 4 of the Conservation Act. In particular:
(i)the Director-General’s decisions involved a breach of the obligation of good faith given the procedural impropriety involved in the decision-making process;
(ii)the Director-General’s decision effectively involved adjudicating on a disputed claim to customary title. This involved a question of rangatiratanga and was properly to be resolved by an iwi to iwi process of a kind that had been agreed, with DoC’s legitimate functions limited to those of kāwanatanga. DoC did not have authority to allocate taonga
under the MMP Act when there were competing cultural claims in the circumstances of this case.
[129] It is clear that the decision made by the Director-General is unlawful and needs to be set aside. The question of any allocation needs to be resolved by an iwi to iwi process, undertaken consistently with the principles of tikanga. That finding does not necessarily preclude subsequent decision-making by the Minister, but that subsequent decision-making would need to be consistent with Treaty principles, including the requirement that this dispute be resolved between the iwi.
[130] The most difficult issue arises from the fact that the two whale jawbones are now in the possession of Ngāti Kuri/Ngāi Tahu. A permit would be required for Ngāti Kuri/Ngāi Tahu to hold those whale bones, and none is in existence. It may be an offence to so hold the whale bones. In those circumstances it is necessary for the position to be regularised by the Court.
[131] At the hearing I raised the prospect of the Court making findings on the judicial review claim and then hearing further from the parties on the question of remedy. That was generally supported by the parties in their submissions as a possible way forward. It seems to me to be appropriate for the parties to address submissions as to what further orders of the Court would be appropriate, including any further orders under s 16 of the Judicial Review Procedure Act 2016. I raise the following potential ways forward:
(a)That the jawbones be returned to DoC, and it be held by DoC as custodian pending Rangitāne and Ngāti Kuri/Ngāi Tahu following a process for resolving the claims.
(b)That the jawbones remain in the possession of Ngāti Kuri/Ngāi Tahu under orders of the Court pending Rangitāne and Ngāti Kuri/Ngāi Tahu following a process to resolve the claims. If this suggestion is adopted I apprehend that it would be necessary for the parties to have agreed on a dispute resolution process, or at least agreed on a process to determine how that dispute resolution process will be decided upon.
[132] I set no specific timetable at this stage for further submissions. The Registrar is to convene a telephone conference for that purpose.
[133] In the meantime, and pending further submissions from the parties, I make an order under s 15 of the Judicial Review Procedure Act that the jawbones be held by the second respondent at a place which the second respondent is to advise the Court, and that they shall not be further moved from that place so that their mana is preserved. That order is subject to further order. This order has the effect of preserving the position in the meantime. The second respondent is to advise the Court of the location by the filing of a memorandum within five working days.
[134] If the question of costs cannot be resolved I will also address this at the further conference.
Cooke J
Solicitors:
Radich Law, Blenheim for the Plaintiffs
Crown Law, Wellington for the First Defendant
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