IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-203
[2023] NZHC 2919
UNDER
Part 30 of the High Court Rules 2016 and the inherent jurisdiction of the High Court
IN THE MATTER
of the proposed signing of a deed of
settlement of historical Treaty of Waitangi and other claims binding ngā hapū o Te Whakatōhea
BETWEEN
TE RINGAHUIA HATA and TE RUA ROGER RAKURAKU
Applicants
AND
THE ATTORNEY-GENERAL
First Respondent
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
Second Respondents
ROBERT EDWARDS, TAHU TAIA, BRUCE PUKEPUKE, KATE HUDSON, VAUGHAN PAYNE, GRAEME
RIESTERER, ANAU APANUI and ERIN MOORE
Third Respondents
AND
NGĀTI RUATAKENGA
Intervener
WAI 864 CLAIMANTS
Intervener
NGĀI TAMAHAUA HAPŪ COMMITTEE
Intervener
HATA v THE ATTORNEY-GENERAL (NO 2) [2023] NZHC 2919 [18 October 2023]
TE UPOKOREHE TREATY CLAIMS TRUST
Intervener
Hearing:
28 August 2023
Appearances:
J E Hodder KC, A T Sykes and S W H Fletcher for the Applicants C R W Linkhorn for the First Respondent
J M Pou for the Second Respondent C R Carruthers KC for the Third Respondents
Judgment:
18 October 2023
JUDGMENT (NO 2) OF COOKE J
(Stay and preliminary question applications)
Table of Contents
Background[4]
Application for a stay[18]
Non-interference principle[19]
Parliamentary Privilege Act 2014[36]
Conclusion[41]
Preliminary question[42]
Assessment[46]
Whakatōhea[48]
The Crown[55]
Conclusion[58]
Result[60]
[1] In these proceedings the applicants, on behalf of Ngāti Irapuaia o Waioweka (Ngāti Ira), a hapū of Whakatōhea, have challenged decisions of the Crown and Whakatōhea that have led to a Treaty settlement. By judgment dated 25 May 2023 I declined the applicants’ application for interim orders to prevent the entry of the relevant Deed of Settlement.1 On 27 May 2023 the Deed was then signed. On 13 June 2023 the Whakatōhea Claims Settlement Bill implementing the settlement was
introduced into the House of Representatives and read for a first time on 17 August 2023. It was not passed when the House was dissolved for the general election.
[2] The applicants wish to continue with their proceeding, and an amended pleading has been filed. This judgment deals with two applications:
(a)An interlocutory application by the Attorney-General under r 15.1 of the High Court Rules 2016 for an order staying the proceeding until such time as the Whakatōhea Claims Settlement Bill is no longer before Parliament.
(b)An interlocutory application by the applicants under r 10.15 of the High Court Rules for orders that certain matters be determined as preliminary questions prior to trial.
[3] For the reasons set out below I have decided that both applications should be declined.
Background
[4] I deal with the background in only very brief terms as ultimately both applications turn on issues of principle rather than questions of fact.
[5] The proceeding is a continuation of long running disputes concerning the various claims of Treaty breaches…
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 [2023] NZHC 2919
Case
[2023] NZHC 2919
Decision Date
CaseChat Overview and Summary
In the High Court of New Zealand, the case of Hata v Attorney-General (No 2) [2023] NZHC 2919 involved a challenge by the applicants, on behalf of Ngāti Irapuaia o Waioweka, a hapū of Whakatōhea, against decisions of the Crown and Whakatōhea that led to a Treaty settlement. The applicants sought an interlocutory application for a stay of the proceeding until the Whakatōhea Claims Settlement Bill was no longer before Parliament, and another for orders that certain matters be determined as preliminary questions prior to trial. The court declined both applications. The applicants argued that the non-interference principle did not apply as their claim was directed to the Crown's unlawful decisions, not the legislative process. The court held that the principle was not engaged as the applicants were entitled to have their legal rights determined, and the court would not interfere with the legislative process. The Parliamentary Privilege Act 2014 was also not applicable as the applicants did not seek to call into question what was happening in Parliament. The court further held that the proposed preliminary questions were inappropriate as they would not save time, create further complications, and likely delay and complicate the proceedings. Both applications were dismissed, and costs were to lie where they fell.