IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-203
[2025] NZHC 519
BETWEEN
TE RINGAHUIA HATA and
TE RUA ROGER RAKURAKU Applicants
AND
THE ATTORNEY-GENERAL
First Respondent
AND
GRAEME RIESTERER, ANAU APANUI, JASON KUREI, ERIN MOORE, DAVE NGATAI, AUDREY GRACE RENATA, MURIWAI KAHAKI, BRUCE
PUKEPUKE, KEITA HUDSON, MANA PIRIHI, TAHU TAIA, PAREHUIA MAFI
and ROBERT EDWARDS as Trustees of the Whakatōhea Pre Settlement Claims Trust Second Respondents
AND
ROBERT EDWARDS, TAHU TAIA, BRUCE PUKEPUKE, KATE HUDSON, VAUGHAN PAYNE, GRAEME
RIESTERER, ANAU APANUI and ERIN MOORE as Trustees of Te Tāwharau o Whakatōhea Trust
Third Respondents
Hearing:
26–27 August 2024
Counsel:
J E Hodder KC, A T Sykes and S W H Fletcher for Applicants C R W Linkhorn and D W Hunt for First Respondent
J M Pou for Second Respondents C R Carruthers KC for Third Respondents
Judgment:
14 March 2025
JUDGMENT OF ISAC J
[Application for declarations of tikanga as law]
HATA & ANOR v THE ATTORNEY-GENERAL & ORS [2025] NZHC 519 [14 March 2025]
Table of Contents
Para no.
Introduction [1]
Background[7]
Early Crown-Whakatōhea engagement in relation to settlement of
historical claims[8]
A new beginning—Te Ara Tono[12]
The mandate process and subsequent Waitangi Tribunal inquiry[20] Further settlement progress and a further Waitangi Tribunal inquiry[32] Ngāti Ira brings proceedings to halt the settlement[42]
Te Tāwharau and the terms of the Trust Deed[47]
Ngāti Ira’s claim and the respondents’ position[58] Ngāti Ira’s tikanga and its refined claims following the Treaty settlement[58] The position of Pre-settlement Trust and Te Tāwharau in response[78] Position of the Attorney-General[87]
The applicant’s substitution application [91]
Tikanga as law in Aotearoa[97]
The application of tikanga is context dependant[104]
Tikanga as an interconnected set of principles[111]
Tikanga informs process as well as outcomes[115]
The courts must take care not to impair the operation of tikanga
as a system of law[122]
Consideration[127]
Abstract declarations invite conflict between the terms of the Trust
Deed and Ngāti Ira’s tikanga[133]
Resort to the Court at this point is unnecessary and inconsistent
with tikanga[142]
Ngāti Ira’s allegations of past breach of tikanga cannot be attributed
to the elected Trustees of Te Tāwharau[146]
The relief sought will affect the interests of parties who are not
before the Court[150]
The Claim against the Crown is also unsustainable[153]
Declining relief at this juncture does not prevent future recourse
to the Court[157]
Should a Court stay proceedings where a more appropriate
forum is available?[159]
Conclusion[166]
Introduction
[1] In 1914, representatives of Te Whakatōhea petitioned Parliament following the Crown’s confiscation of their ancestral lands. Unsuccessful in their endeavour, the six hapū of Whakatōhea met later that same year at Waiaua marae to discuss what to do next. They resolved that each of them should continue to collect a “tax” of 2s 6d per person to support the collective effort to seek redress from the Crown. The individual contributions continued until 1946. A record was kept of the name and hapū affiliation of every person who contributed.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hata v Attorney-General [2025] NZHC 519
Case
[2025] NZHC 519
Decision Date
CaseChat Overview and Summary
The High Court of New Zealand dismissed the application for declarations by Ngāti Ira, one of the six hapū of Te Whakatōhea, against the Crown and the Post-Settlement Governance Entity, Te Tāwharau o te Whakatōhea. Ngāti Ira sought forward-looking declarations based on its tikanga as law, aiming to regulate its future dealings with the Crown and Te Tāwharau. The Court held that the application for abstract declarations was premature, as there was no live controversy between the parties at the time of hearing. The Court found that the declarations sought would invite conflict between the terms of Te Tāwharau’s Trust Deed and Ngāti Ira’s tikanga. Moreover, the relief sought would give primacy to Ngāti Ira’s tikanga over other potentially important elements of tikanga applicable in specific contexts. The Court also held that Ngāti Ira’s claim against the Crown was unsustainable, as there was no present controversy and the Court was asked to provide an advisory opinion in the absence of an adequate context. Declining relief at that juncture did not prevent future recourse to the Court if and when internal processes had been exhausted. The Court further considered that in cases governed by tikanga, it should consider staying proceedings where an alternative forum is available to resolve the dispute more suitably for the interests of the parties and the ends of justice.