Hata v Attorney-General
[2023] NZHC 2919
•18 October 2023
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 RespondentsJudgment:
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
1 Hata v Attorney-General [2023] NZHC 1255.
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 by the various hapū of Whakatōhea, and Whakatōhea itself, and the settlement of those claims. Whakatōhea have sought remedies for Crown breaches of the Treaty over many years. The Crown’s breaches include the invasion of Whakatōhea territory and the associated confiscations in the 1860s.
[6] The Crown and Whakatōhea entered a settlement of Treaty claims in 1996, but due to different views within Whakatōhea the Deed of Settlement was withdrawn in 1998. This resulted in an internal assessment on how the different views within the iwi should be addressed, including in relation to the issues of tikanga of the hapū. In 2007 a process for negotiations was adopted by the hapū. It was set out in a report
entitled Te Ara Tono Mo Nga Kereme o Te Whakatōhea: Final Whakatōhea Raupatu Process Report (the Te Ara Tono Report).
[7] A process was then followed to determine who would be mandated to undertake negotiations on behalf of Whakatōhea, and in December 2016 Whakatōhea Pre-Settlement Claims Trust (WPCT) was so recognised and terms for the negotiations were signed.
[8] The Waitangi Tribunal then engaged in an inquiry into the process that the Crown had decided to follow. In a report dated 12 April 2018 the Tribunal concluded that the Crown processes were in breach of the Treaty, particularly by limiting the approval by the members of Whakatōhea to the mandate by using a register of members maintained by the Whakatōhea Māori Trust Board. The Tribunal said:2
We find that, by relying on the Trust Board register in May 2016 for the purposes of the mandate vote, the Crown breached the Treaty principle of active protection. It failed to properly inform itself as to the adequacy of the register for the purposes of the vote and to ensure that steps were taken to update the register before a mandate vote was taken.
We find that the Crown did not sufficiently inform itself of the true levels of support and opposition to the Pre-settlement Trust mandate prior to recognition and it thereby breached the Treaty principle of active protection.
We find that the Crown failed to act reasonably to ensure an adequate means of voting on the mandate on a hapū basis. This was in contravention of what it knew was the tikanga endorsed by Whakatōhea in 2007. In failing to appropriately recognise hapū rangatiratanga in this way the Crown breached the principle of active protection.
We find that the Crown failed to act reasonably when it approved a mandate that contains a withdrawal mechanism it acknowledges to be unfair. In failing to appropriately recognise hapū rangatiratanga in this way, the Crown breached the Treaty principle of active protection.
[9] This caused the Crown to pause the negotiations. In October 2018, however, Whakatōhea showed support for continuing negotiations. In June 2019 the Tribunal also began its North-Eastern Bay of Plenty District inquiry focusing on the Whakatōhea claims in accordance with the Tribunal’s district inquiry processes.
2 The Whakatōhea Mandate Inquiry Report (Wai 2662, 2018) at [7.6].
[10] In September 2019 the Minister for Treaty negotiations and the Minister for Māori Development agreed to resume negotiations between the Crown and WPCT. Following those negotiations, an overall settlement package was agreed upon.
[11] In March 2021 Cabinet approved a package involving approximately $100 million value, other commercial and cultural redress, and an apology. Somewhat unusually the settlement package contemplated that the Tribunal would be able to continue with its inquiry into the Treaty breaches notwithstanding the settlement, albeit without jurisdiction to make recommendations.
[12] In April 2021 the Ministers approved the process that would be followed for the ratification of the settlement by Whakatōhea members. The Waitangi Tribunal then engaged in a further investigation and report into the Crown processes. It released The Priority Report on the Whakatōhea Settlement Process on 10 December 2021.3 The Tribunal concluded that the Crown’s approach still breached the Treaty principles in two respects. By way of summary it found:
(a)That the mechanisms that were in existence for a hapū to withdraw from the settlement processes needed to be amended to more appropriately reflect hapū rangatiratanga.
(b)That the processes for ratification required greater traditional processes by which decisions were made on the marae guided by kaumātaua and kuia.
[13] The Crown did not, however, fully accept these recommendations and it proceeded to push on without making the recommended changes. On 23 December 2021 the Crown and WPCT then initialled the Whakatōhea Deed of Settlement.
[14] One of the hapū, Te Upokorehe sought to withdraw its mandate during 2022. The processes that were followed for the withdrawal were those that the Tribunal had recommended should be amended. Te Upokorehe’s withdrawal was not agreed to by the iwi in a vote that took place in August 2022.
3 The Priority Report on the Whakatōhea Settlement Process (Wai 1750, 2021).
[15] In October 2022 Whakatōhea members then voted on the proposals associated with the entry of the Deed of Settlement. Approximately two thirds of Whakatōhea members overall voted in favour of entry of the Deed. Of the six hapū a majority of members from four clearly voted in favour. Only 43 per cent of Ngāti Ira voted in favour, however. Only just over 50 per cent of Te Upokorehe voted in favour. The other hapū voted in favour in a reasonably clear way.
[16] In February 2023 the Ministers agreed to proceed with signing the Deed of Settlement. Notification was given at the end of February that that was the case. Following the unsuccessful application for interim orders the Deed of Settlement was signed on 27 May 2023, the 183rd anniversary of the signing of the Treaty of Waitangi by Whakatōhea and the Crown. The relevant Bill was then placed before Parliament.
[17] Parliament was dissolved for the purposes of the general election on 14 October 2023 at a time when the Bill was still before the House. Section 20(1)(b) of the Constitution Act 1986 provides that any Bill before the House lapses on the dissolution of that Parliament, but may be reinstated in the next session of Parliament by resolution of the House.
Application for a stay
[18] The Attorney-General applies for a stay of these proceedings on the basis of the principle of non-interference with the parliamentary proceedings as recognised by a line of authorities, including the decision of the Supreme Court in Ngāti Whātua Ōrākei Trust v Attorney-General.4 In addition the Attorney-General relies on the Parliamentary Privilege Act 2014 on the basis that the Bill is formally before the House, or at least was when this application was argued. The Attorney-General argues that this stay should remain in place until the Bill is no longer before the House.
Non-interference principle
[19] I deal first with the argument that the proceedings should be stayed based on the non-interference principle. The Attorney-General argues that the heart of the
4 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116.
applicants’ claim is an allegation that the Crown has acted unlawfully in the settlement process and by concluding the Deed of Settlement. It says that this is an impermissible challenge to the process underlying the introduction of the Bill. Ngāti Ira argues that the non-interference principle is not engaged at all as all it is doing is seeking a declaration of its existing rights and nothing about its claims unacceptably puts the Bill in issue.
[20] In Ngāti Whātua Ōrākei Trust v Attorney-General the Supreme Court addressed when proceedings were liable to be struck out or stayed because of the non- interference principle. Its ultimate decision was that only some of the claims as pleaded were found to infringe the principle. Ellen France J said for the majority:5
From the cases to date, there remain questions about the exact scope, qualifications and basis of the principle of non-interference in parliamentary proceedings.6 As will become apparent, it is not necessary in the present case to resolve the exact metes and bounds of the principle. It is, nonetheless, appropriate to sound a note of caution at the extent to which the principle of non-interference in parliamentary proceedings has been held to apply to decisions somewhat distant from, for example, the decision of a minister to introduce a Bill to the House or from debate in the House. It would be overbroad to suggest that the fact a decision may, potentially, be the subject of legislation would always suffice to take the advice leading up to that decision out of the reach of supervision by the courts. That would be to ignore the function of the courts to make declarations as to rights. In that respect, it is relevant that the observations in Milroy were made in the context of acceptance by counsel for the appellants that the officials’ advice did not affect the rights of any person or have the potential to do so.
[21] The majority considered that the relief sought in two paragraphs of the statement of claim offended against the principle:7
Both paragraphs are framed as challenges to process which may be broader. But the processes are described as relating only to the Ngāti Paoa and Murutūāhu decisions, as specifically defined. In context, the relief sought can only be characterised as a challenge to the decision which has been made to legislate to transfer the relevant properties albeit the illegality is said to arise because of some prior lack of process. To this extent we agree with the approach taken in the Court of Appeal. We would accordingly strike out these two paragraphs. This would also require re-pleading of other aspects of the current pleading which are directed towards the transfer of these particular properties.
5 At [46]–[47].
6 See Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) [Sealords] at 307–308.
7 At [66]. Elias CJ reached similar conclusions, but would not have struck out the two paragraphs
– see [127].
[22] The exact nature of the offending claims had earlier been described by the Court at [22] and [29(a)–(f)]. In the offending paragraphs [29(e) and (f)] the applicant sought declarations that decisions about particular properties were inconsistent with the Crown’s obligations to make decisions in accordance with tikanga, the Treaty, and other rights. These properties were to be transferred as part of the Bill as a consequence of the decisions. The relief particularised in paragraphs [29(a)–(d)] was not directed to particular decisions to transfer properties, but alleged breaches of tikanga and Treaty principles, including in the settlement negotiation process.
[23] On this basis the relevant line of analysis would address whether the applicants’ pleaded claims were directed to particular matters being addressed in the Bill, such as the transfer of particular properties, or whether the claim was directed to more general principles that could properly be determined by the Court. As in Ngāti Whātua an opportunity to amend the pleading would be appropriate to allow the claim to be properly formulated.
[24]In these judicial review proceedings the applicants seek the following relief:
(a)A declaration that the Crown’s decisions, as identified in the statement of claim, were unlawful by reason of errors and breaches of law.
(b)A declaration that it would be a breach of the Relevant Tikanga as law, and the Crown’s obligations under the Treaty of Waitangi and its principles, for the Crown to permit the inclusion of Ngāti Ira to be included in any agreement or compact when the hapū does not consent to being so included.
[25] The decisions earlier identified in the amended statement of claim include the decision to enter the Deed of Settlement. During the hearing the applicants supplied a proposed reformulation of the relief it sought as an alternative to (b) above:
(c) a declaration that Ngāti Ira continues to have existing rights to create, guard and exercise its Relevant Tikanga and to have that Relevant
Tikanga recognised and protected by the Crown, including in all dealings by the Crown with Ngāti Ira and in its rohe.
[26] As I see it the relief sought in the amended statement of claim, and its additional reformulation, may be said to be more similar to the relief that the applicants in Ngāti Whātua sought as identified in [29(a)–(d)] than the offending paragraphs in [29(e)–(f)] which were held to breach the non-interference principle. That is because relief sought is more generic, and not focused on particular properties that were subject to the proposed legislation. Indeed it is not relief limited to the Deed of Settlement — it refers to “any agreement or compact when the hapū does not consent to being so included”. I acknowledge that these views can be seen as different from those I expressed when dismissing the application for interim orders.8
[27] The Attorney-General argued, however, that whilst the relief was apparently more generally formulated the essential nature of the applicants’ claim substantively challenged the inclusion of Ngāti Ira in the settlement, and accordingly what was to be effected by legislation. Reliance was placed on the decision of the Court in Roebeck & Ors v Attorney-General where, after reviewing the authorities, McQueen J held when striking out similar proceedings that “what is really being challenged is the process underlaying the introduction of legislation to Parliament”.9 I see force in these points when the claims are considered as a matter of substance. It illustrates that the dividing line that the majority drew in Ngāti Whātua is not necessarily a clear one if the focus is on the substance of the challenge. The majority judgment effectively invites the formulation of relief at a more general level, and without particularity, in a manner that can be said to no longer so clearly challenge what is before parliament. The focus appears to be more on form than substance.
[28] But the applicants’ claims, as formulated, duly apply the approach favoured by the majority, and for that reason I consider they should not be stayed or struck out. In any event it seems to me that the non-interference principle has further evolved and that a clearer principle has perhaps become apparent. Following Ngāti Whātua the
8 Hata v Attorney-General, above n 1, at [47]–[51]. But the essential distinction between the role of the Court and of Parliament I elaborate upon below was referred to at [48]–[50].
9 Roebeck & Ors v Attorney-General [2022] NZHC 3341 at [103]. The Supreme Court declined special leave to appeal this decision to it in Roebeck v Attorney-General [2023] NZSC 95.
principles were further considered by the Court of Appeal in Ngāti Mutunga O Wharekauri Asset Holdings Company Ltd v Attorney-General.10 The Court there said:11
The simple point is, courts may declare rights, and these may relate to the rights-consistency of government action, and even proposed government action. But they may not relate to the rights-consistency of proposed legislation. For example, a government proposal to exercise an existing lawful power in a particular way may be the subject of court declarations. The difficult area is where the proposed government action is really a proposal to legislate. In principle, declaratory proceedings of this nature are simply not permitted. The point at which a government proposal crystallises into what is in substance a proposal to legislate may be a matter for debate. But it is not one that needs to be resolved in this case.
[29] The Supreme Court itself returned to the issue in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd.12 This proceeding also involved disputes associated with a settlement that were in the process of being determined by legislation. By the time of the hearing before the Supreme Court the settlement legislation was before the House. The Supreme Court found that that did not prevent it determining the appeal, and accordingly adjudicating upon matters that were substantively before the House. For the majority Williams J said:13
… these appeals do not put the claims settlement Bill in issue in any way. Rather, they raise orthodox claims of statutory or other right: the right to have extant applications for resumption determined according to law, and the related right to test the implications of tikanga considerations in that context. They therefore involve no conflict with the terms of s 11 of the Parliamentary Privilege Act 2014, nor any breach of the common law principle of non- interference.14 A passage from the Court of Appeal decision in Ngāti Mutunga O Wharekauri Asset Holding Company Ltd v Attorney-General, delivered sometime after this Court’s decision in Ngāti Whātua Ōrākei Trust, captures the essential points:15
[33] ... the reasoning of both the majority and Elias CJ in Ngāti Whātua is consistent with the proposition that the courts may make declarations of existing right, interest or entitlement whether or not there is a bill before the
10 Ngāti Mutunga O Wharekauri Asset Holding Company Ltd v Attorney-General [2020] NZCA 2, [2020] 3 NZLR 1.
11 At [27].
12 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767.
13 At [47].
14 See Ngāti Whātua Ōrākei Trust [2018] NZSC 84, [2019] 1 NZLR 116 at [46]; and Ngāti Mutunga O Wharekauri Asset Holding Company Ltd v Attorney-General [2020] NZCA 2, [2020] 3 NZLR 1 at [33]–[35]. See also Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 WLR 213 (CCA) at 215–216. Note also Fitzgerald v Muldoon SC Wellington A118/76, 19 May 1976.
15 Ngāti Mutunga O Wharekauri Asset Holding Company Ltd, above n 10 (footnotes omitted).
House which may affect them in some way. Such relief is not “in relation to parliamentary proceedings”, in the sense provided for by ... the Parliamentary Privilege Act. It does not amount to an interference by the courts in Parliament’s “proper sphere of influence and privileges” because such declarations would be about existing rights, interests or entitlements, and not what Parliament may be proposing to do in relation to them. The terms of s 4(1)(b) of the Parliamentary Privilege Act are apposite here. Comity is a principle of “mutual respect and restraint” between the legislative and judicial branches as to their respective constitutional functions. It is the function of courts to adjudicate on rights and entitlements.
[30] Identification of the dividing line involves important issues concerning the separation of powers, and the constitutional role of the court and of parliament. As such, there is another important development that is relevant. In Attorney-General v Taylor the Supreme Court determined, not long after its decision in Ngāti Whātua, that the courts could declare that legislation enacted by Parliament is in breach of the New Zealand Bill of Rights Act 1990.16 Parliament responded to this decision by enacting ss 7A and 7B of the New Zealand Bill of Rights on 30 August 2022 by s 4 of the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022. In the report of the Privileges Committee on what became ss 7A and 7B, the Committee said:17
Declarations of inconsistency do not affect the fundamental principle of Parliament’s legislative supremacy, as recognised in section 4 of the Bill of Rights Act. This bill and our recommended amendments similarly would not alter that principle. A declaration of inconsistency is, however, of high public and constitutional significance. It is an unambiguous statement from a senior court or tribunal that the law of New Zealand infringes upon people’s protected rights in a manner that cannot be demonstrably justified. Given that the Bill of Rights Act requires courts to give legislation a rights consistent interpretation if one is available, such declarations will not be made lightly.
It is vital that the branches of government responsible for making laws and administering them—the legislative and executive branches, respectively— are both seen by the public to, and do in fact, consider such declarations properly. Our package of recommendations seeks to achieve this by providing a clear framework for dialogue between the branches of government. We believe it would represent a significant development in New Zealand’s constitutional architecture relating to fundamental rights, and hope that it will promote genuine engagement with rights issues.
It is worth noting that we are not proposing that either the legislative or executive branches be required by law to respond to a declaration of inconsistency in any particular way. In the spirit of dialogue and our
16 Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213.
17 New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill (230—2) (select committee report) at 2.
constitutional arrangements, that is properly a matter for each branch to determine on its own.
[31] These developments show that the Court can adjudicate on enactments in a constitutionally appropriate way.
[32] As the majority said in Ngāti Whātua the exact boundaries of the non- interference principle are evolving and are becoming more clearly identified. The developments referred to above can be thought of as part of the evolution of constitutional maturity. These developments suggest that the real dividing line is identified by distinguishing between legal questions that are for the court to decide, and political questions that are for parliament. It is of constitutional importance that there is right of access to the court so that parties may obtain determinations of their legal rights. This is a fundamental right at common law which is reflected in the New Zealand Bill of Rights Act 1990.18 The court should not, however, exercise this jurisdiction in a way that interferes with the role of parliament. What parliament considers, and does, is entirely a matter for it. This approach accords with the judgment of Elias CJ in Ngāti Whātua, and with the constitutional principles recognised in Fitzgerald v Muldoon.19
[33] Against that background it seems to me that the important point is not so much what the party pleads in its statement of claim, but more what the court does by way of its determinations, and the relief that it grants.20 In the present case the applicants say that their legal rights have been interfered with. They say that nobody has the authority to reach agreements on their behalf. They say that this conflicts with tikanga. They are entitled to bring that claim to the Court. The fact that that claim is brought in the context of a Treaty settlement procedure does not exclude the Court’s jurisdiction. Neither does the fact that the agreement in question is likely to be given effect by proposed legislation eliminate the existence of the legal issue. The legal issue preceded the existence of the Bill, and exists entirely independently of it. But
18 New Zealand Bill of Rights Act 1990, s 27.
19 Ngāti Whātua Ōrākei Trust, above n 14, at [115]–[119]; Fitzgerald v Muldoon [1976] 2 NZLR 615 (SC), SC Wellington A 118/76 19 May 1976 per Beattie J.
20 That is not to say that a pleading that seeks to call in question parliamentary proceedings should not be struck out if not re-pleaded.
what the Court cannot do when addressing these claims is reach any decisions, or make any orders that purport to prevent, or otherwise interfere with the legislative process.
[34] The fact that parliament chooses to legislate in a manner that may change, or otherwise affect legal rights is a matter entirely for parliament. The courts will not interfere with it so exercising its legislative functions. And if legislation is passed the court has no role in overturning it, although it could have jurisdiction to grant a declaration of inconsistency once legislation is enacted if that is appropriate.21 But equally the fact that parliament chooses to address such matters should not exclude the right of access to the court that a party has to have its existing legal rights determined. In this way the respective constitutional functions of the court and parliament are maintained, and the rule of law is upheld. I consider this to be a clearer dividing line that accords with principle. Inviting the claimant to introduce ambiguity into its pleading may not be the most appropriate technique to ensure fundamental constitutional principle is observed. As the development of the declarations of inconsistency framework demonstrates a clearer identification of the respective constitutional roles is to be preferred, and is more likely to lead to the proper respect for each branch of government.
[35] In any event I do not consider that a basis to stay the applicants’ claims exists, as their claim corresponds to those that the Supreme Court decided could continue in Ngāti Whātua. The applicants are entitled to have access to the Court to have their rights determined. The court will not adjudicate, or otherwise make determinations that purport to interfere with parliament’s role when doing so. But that requirement does not prevent the claim proceeding. The applicants’ amended statement of claim does not plead any issue associated with the legislative process. It seeks declaratory and not injunctive relief. The claims are against the executive, and they relate to legal rights. Indeed the fact that the Attorney-General only sought to stay rather than to strike out the applicants’ claims illustrates the point — this implicitly accepts that once any legislation is passed the claims would be able to be pursued as they concern legal rights.22 But there is no reason to prevent the proceedings being progressed in the
21 Although that jurisdiction might not be exercised in this context – see Wairarapa Moana Ki Pouākani Inc v Attorney-General [2023] NZHC 2086.
22 Subject to whatever parliament may wish to do to change legal rights by way of legislation.
meantime even if parliament addresses the settlement during the same time period. Provided that each branch of government adheres to its role there is no inconsistency.
Parliamentary Privilege Act 2014
[36] I can deal with the Attorney-General’s related argument based on the Parliamentary Privilege Act 2014 more briefly against that background. In short, I consider that the Act has no application for essentially the same reasons as the non- interference principle is not engaged. Section 11 of the Parliamentary Privilege Act provides:
11 Facts, liability, and judgments or orders
In proceedings in a court or tribunal, evidence must not be offered or received, and questions must not be asked or statements, submissions, or comments made, concerning proceedings in Parliament, by way of, or for the purpose of, all or any of the following:
(a)questioning or relying on the truth, motive, intention, or good faith of anything forming part of those proceedings in Parliament:
(b)otherwise questioning or establishing the credibility, motive, intention, or good faith of any person:
(c)drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament:
(d)proving or disproving, or tending to prove or disprove, any fact necessary for, or incidental to, establishing any liability:
(e)resolving any matter, or supporting or resisting any judgment, order, remedy, or relief, arising or sought in the court or tribunal proceedings.
[37] The Attorney-General argued that this was a broad prohibition that does considerably more than narrowly preclude enquiries and orders preventing the introduction or the consideration by parliament of the Bill.
[38] In Ngāti Mutunga O Wharekauri Asset Holdings Company Ltd v Attorney- General both the High Court23 and the Court of Appeal24 held that the proceedings in
23 Ngāti Mutunga O Wharekauri Asset Holdings Company Ltd v Attorney-General [2017] NZHC 2482, [2018] NZAR 18.
24 Ngāti Mutunga O Wharekauri Asset Holdings Company Ltd v Attorney-General, above n 10.
that case infringed the Parliamentary Privilege Act. The proceedings sought a declaration of inconsistency in relation to legislation before the House creating the Kermadec Ocean Sanctuary. The Court held that there was no jurisdiction to grant declarations of inconsistency in relation to proposed legislation on any reading of s 11. The Court of Appeal summarised the effect of s 11:25
We have already set out s 11. Its effect is that no court may receive evidence, statements, submissions, or comments concerning proceedings in Parliament for the purpose of engaging with the truth, motive, intention, or good faith of any aspect of those proceedings; or with the credibility, motive, intention or good faith of any person connected with them; or to draw inferences or conclusions from them; or to prove or disprove any fact in order to establish liability; or to support or resist any judgment or relief.
[39] The Court found that the authority relied upon by the applicants, Thompson v Treaty of Waitangi Fisheries Commission, pre-dated the Act and would now be differently decided.26 But s 11 does not affect proceedings that do not call into question such matters. That was recognised in Ngāti Mutunga itself.27 This point was then reiterated by the Supreme Court in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd where the Court held that the proceedings it was addressing did not put the Settlement Bill in issue in any way, and that there was “… therefore … no conflict with the terms of s 11 of the Parliamentary Privilege Act …”.28
[40] As I see it, therefore, the same principles apply. The fact that proceedings before the court, and proceedings before parliament, generally involve the same subject matter does not eliminate the constitutional role of either body. All that the Parliamentary Privilege Act confirms is that the court has no role to adjudicate on, or otherwise call into question what is happening in parliament. If a party seeks a remedy in relation to what has happened, or is happening in parliament this is a breach of the Act and the court will not address such matters. It will strike out proceedings that invite it to do so. But it will exercise its jurisdiction in relation to matters that do not call into question what is before parliament, including the jurisdiction to determine legal rights that exist entirely independently of what may be taking place in parliament.
25 At [20].
26 Thompson v Treaty of Waitangi Fisheries Commission [2005] 2 NZLR 9 (CA) at [130].
27 At [27] – see [28] above.
28 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd, above n 12, at [47].
Conclusion
[41] For these reasons I do not accept the Attorney-General’s arguments either in relation to the non-interference principle or under the Parliamentary Privileges Act. The application for a stay is dismissed.
Preliminary question
[42] By separate interlocutory application Ngāti Ira seeks a direction that certain separate or preliminary questions be determined in advance of trial under r 10.15 of the High Court Rules. The separate questions it seeks determination were formulated in the following way:
(a)Has Ngāti Ira had at all material times, and continuing, a right enforceable in the High Court to have its Relevant Tikanga, if such is admitted by the respondents or proven at trial, neither infringed nor undermined nor disregarded by any persons or entity, such as WPCT or Te Tāwharau, which purports to represent Ngāti Ira as one of the hapū of Whakatōhea?
(b)Has Ngāti Ira had at all material times, and continuing, a right enforceable in the High Court, if such is admitted by the respondents or proven at trial, to prevent the WPCT from promoting, and the Crown and Te Tāwharau from signing, any document which purports to bind Ngāti Ira and settle on its behalf any legal claim it may have against the Crown or any other person?
[43] It also included a question (c) which was directed to the non-interference principle which I have already addressed.
[44] The parties did not differ on the approach that is applied to applications under r 10.15. In Haden v Attorney-General Kós J suggested that the most important questions under the rule were the following:29
29 Haden v Attorney-General (2011) 22 PRNZ 1 at [50] (HC). See also Clear Communications Ltd v Telecom Corp of NZ Ltd (1998) 12 PRNZ 333 (HC).
(a)Will there be difficult demarcation questions between those issues to be addressed at the first hearing and those left to the second?
(b)Will the separate question bring the proceedings to any end?
(c)What potential time saving does a separate question offer?
(d)How will appeals be dealt with?
(e)Are there any other practical considerations tending one way or the other?
[45] Ngāti Ira argued that the proposed questions were appropriate and would introduce efficiency to the proceeding. The questions identified pre-requisites to its success. If it failed in these questions claims would be brought to an end. There was no difficulty in relation to demarcation, and any appeals could be dealt with promptly. The respondents argued the questions were unsuitably abstract and that it was not possible to separate the stipulated questions from the broader issues. The questions also involved a developing area of the law, where there was a real likelihood of greater complexity, including because of appeals.
Assessment
[46] This is a judicial review proceeding. Such proceedings should proceed by way of a simple, untechnical and prompt procedure.30 Whilst this particular claim is advanced under pt 30 of the High Court Rules and not under the Judicial Review Procedure Act 2016 (and accordingly not in accordance with s 14 of that Act) the same principles apply when case management decisions are made. It is not common to allow for separate questions in a judicial review proceeding as determining separate questions in advance of the main hearing would not usually be consistent with the simple, untechnical and prompt approach to judicial review. But separate questions could be ordered if this goal was furthered by doing so.
30 Rather than just, speedy and inexpensive in accordance with r 1.2 – although there are obviously similarities between the two goals.
[47] In these proceedings Ngāti Ira contends that, as a matter of its tikanga, no other person has the authority to reach agreements on its behalf, including the agreement settling its Treaty grievances with the Crown. But the Crown, and the second and third respondent on behalf of Whakatōhea argue that the settlement agreement that was reached was legitimate, binding on Ngāti Ira, and did not infringe tikanga principles. Each of the respondents advance arguments that are central to the core dispute in the proceedings.
Whakatōhea
[48] The second and third respondents argue, on behalf of Whakatōhea, that the tikanga issues are more complicated that Ngāti Ira contends. It says that questions of tikanga also exist at the iwi level, and apply to the relationships between the various hapū that make up Whakatōhea. They say that Ngāti Ira’s tikanga does not trump, or override the interests of the other hapū and the iwi of the whole. They argue that it would not make sense to single out Ngāti Ira’s tikanga and address it separately at a preliminary hearing.
[49] I accept these submissions. Ngāti Ira does not need a determination of this Court to tell it what its tikanga is. Any determination of the Court is only of significance if it resolves the differences between the parties concerning the intersection of Ngāti Ira’s rights and those of the other hapū and the iwi as a whole. This is likely to involve questions of tikanga, but those questions cannot be properly understood, and resolved, by considering Ngāti Ira’s tikanga alone. As the Supreme Court’s decision in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd shows questions of tikanga can become complex, and involve overlapping principles.31 As Williams J said for the majority in explaining the error made by the High Court:32
All that said, we take the view that in tikanga, as in law, context is everything. It is dangerous to apply tikanga principles, even important ones, as if they are rules that exclude regard to context. …
31 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd, above n 12.
32 At [74].
[50] It is also necessary to assess precisely how tikanga applies, or influences the relevant issues. As Glazebrook J said in Ellis v R:33
In some cases, tikanga and its principles may be controlling: for example, where Treaty principles and/or tikanga have been incorporated into statute in a manner that makes them so, or where the factual context justifies it. In other cases, tikanga principles or values may be relevant considerations alongside other relevant factors.34 Tikanga may be relevant to explain the social and cultural framework for the actions of Māori parties.35 In still other cases tikanga principles and values may have an influence on the development of the common law. They can also provide a new vocabulary or new way of thinking about new concepts of law or a new intellectual framework for those concepts.36
[51] So there may be difficult questions to address when considering claims advanced on the basis of tikanga. These include the question of how tikanga affects the particular issues that arise. Here, in addition to questions concerning the authority to conduct negotiations with the Crown in relation to Treaty settlements, the applicants challenge decisions made by the second respondents as trustees of WPCT. So this raises questions over how tikanga principles affect the trustees’ duties.
[52] For that reason I do not accept the applicants’ submission that the tikanga of other Whakatōhea hapū has no direct relevance to the question whether Ngāti Ira’s tikanga is legally enforceable. The immediate question is legally enforceable against who, or in relation to what? The question of enforceable rights can only be addressed if all the relevant circumstances, and the rights of other parties, are addressed.
[53] I accept that the identification of Ngāti Ira’s tikanga involves questions of law that could be subject to declaratory relief. As the Supreme Court emphasised in Mandic v The Cornwell Park Trust Board (Inc) it is not necessary for there to be a
33 Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [118]. See also Williams J at [272].
34 For example, in Takamore (SC) [2012] NZSC 116, [2013] 2 NZLR 733, at [164], the majority noted the common law of New Zealand requires “reference to the tikanga, along with other important cultural, spiritual and religious values, and all other circumstances of the case as matters that must form part of the evaluation”. See also the comments in Cowan v Cowan [2022] NZSC 43 (footnote amended).
35 But note the caution expressed in Deng v Zheng [2022] NZSC 76 about stereotyping at [80]–[82]. See also the general observations in that case at [78]. While the Court in Deng v Zheng said at [77] that these comments do not address tikanga, many of the observations will still have resonance in this situation
36 This paragraph is not intended to be a full analysis of the ways tikanga might be taken into account… the law is in a state of transition (footnote amended).
dispute which the Court is adjudicating on before it may grant declaratory relief.37 But when there is such a dispute it cannot be ignored by formulating a preliminary question which excludes the other parties arguments, including when the court is exercising a discretion or determining the most efficient and effective way to deal with proceedings under r 10.15.
[54] Moreover tikanga also has significant procedural elements. It may require hapū/iwi to address their issues directly without recourse to the courts.38 Indeed some view it as less consistent with tikanga to approach the court when there are disputes between hapū/iwi.39 It is relevant in that context that the Te Ara Tono Report was agreed to by all hapū to identify how tikanga influenced the Treaty settlement process. I acknowledge that here the applicants approach the Court in what they see as a last resort. But whether and when it is appropriate for the Court to adjudicate on an issue of tikanga, or significantly influenced by tikanga, as between hapū/iwi would remain an issue to be considered.
The Crown
[55] There is then a further dimension in relation to Ngāti Ira’s challenges directed to the conduct of the Crown. As indicated in the interim relief decision it seems to me that the nature of the Crown’s obligations with respect to the tikanga of Ngāti Ira directly engages Treaty principles.40 That is because Ngāti Ira’s tikanga is part of the rangatiratanga that is protected by art 2 of the Treaty. Equally the rights of other hapū, and of the iwi are also recognised by art 2. So the way that tikanga may apply in this context — the negotiation of Treaty settlements — may be through Treaty principles, at least in the context of the obligations of the Crown.
[56] For these reasons it may well be that Ngāti Ira’s tikanga is not controlling, but rather is an element, albeit an important one, of the application of Treaty principles. Here it seems to me to be significant that the Waitangi Tribunal has addressed the Crown’s obligations as Treaty partner in the settlement processes. It has issued two
37 Mandic v The Cornwell Park Trust Board (Inc) [2011] NZSC 135, [2012] 2 NZLR 194 at [3]–[9] and [82].
38 Hart v Director-General of Conservation [2023] NZHC 1011 at [105]–[120].
39 Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 at [862]–[864].
40 Hata v Attorney-General, above n 1, at [30]–[40].
reports with recommendations based on the Crown’s Treaty obligations.41 Those reports did not conclude that Ngāti Ira’s tikanga was controlling in the way Ngāti Ira contends. In the second report the Tribunal said that the Crown needed to do more to reflect the traditional processes followed by hapū.42 But this recommendation was not accepted by the Crown. It is for this reason that I concluded that there was an arguable basis for Ngāti Ira to assert that its Treaty rights (and accordingly potentially its legal rights) were not being respected in the interim relief decision.43 But Ngāti Ira does not advance that claim, but rather continues with its allegation that it has an absolute right based on its own tikanga.
[57] Whether it does, or does not, is a matter that can be assessed in these proceedings. But what the above demonstrates is that the relevance of Ngāti Ira’s tikanga cannot meaningfully be addressed without the other issues being considered. The real dispute in this proceeding is the extent to which Ngāti Ira’s tikanga can be controlling given the rights of the other hapū and the iwi of the whole, and the extent to which the Crown was obliged to respect Ngāti Ira’s autonomy in those circumstances. It seems to me, therefore, that the proposed preliminary questions avoid the key questions in the proceeding.
Conclusion
[58] For these reasons I do not accept that the separate questions under r 10.15 are appropriate. In terms of the key questions summarised at [44] above:
(a)There are difficult demarcation issues. Indeed the matters that the respondents wish to argue seem to me to be inseparable from those posed by Ngāti Ira.
(b)The questions so posed are unlikely to bring the proceeding to an end. It may be that the questions could be answered by the Court identifying
41 The Whakatōhea Mandate Inquiry Report (Wai 2662, 2018); The Priority Report on the Whakatōhea Settlement Process (Wai 1750, 2021).
42 At [3.8.3.1].
43 Hata v Attorney-General, above n 1, at [27(b)], [30]–[40].
what Ngāti Ira’s tikanga is, but such answers do not resolve the issues concerning the agreements/conduct actually challenged in this case.
(c)The preliminary questions would accordingly not save any time, but would create further complications which are inappropriate, particularly for a judicial review proceeding.
(d)The likely appeals that could result would add a further layer of complexity.
(e)Given all the above considerations, and the fact this is a judicial review proceeding, the proceedings would likely be further delayed and made more complicated by the proposed preliminary questions.
[59]For these reasons the applicants’ application is dismissed.
Result
[60]For the above reasons both applications are dismissed.
[61] In relation to costs I will receive memoranda if they cannot be agreed, but my preliminary view is that costs should lie where they fall given that both applications have been unsuccessful.
[62] The proceedings should be scheduled for a telephone conference before me so further directions can be given for the determination of the proceedings. The Registrar is to liaise with counsel of all parties to agree upon a date, and the parties are to discuss the appropriate directions and file memoranda in advance of the conference.
Cooke J
Solicitors:
Sykes & Corporation, Rotorua for the Applicants Crown Law, Wellington for the First Respondent
Tu Pono Legal Ltd, Rotorua for the Second Respondents
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