Hata v Attorney-General - [2023] NZHC 1255

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 1255

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 [2023] NZHC 1255 [25 May 2023]

TE UPOKOREHE TREATY CLAIMS TRUST
Intervener

Hearing: 24 May 2023

Appearances:

J E Hodder KC amd S W H Fletcher for the Applicants C Linkhorn and D W Hunt for the First Respondent

J M Pou for the Second Respondents
C R Carruthers KC for the Third Respondents

K S Feint KC and M S Smith for Ngāti Ruatakenga J L Cole for Wai 864 Claimants

R J Clark for Ngāi Tamahaua Hapu Committee

B R Lyall and H L B Swedlund for Te Upokorehe Treaty Claims Trust

Judgment:

25 May 2023

JUDGMENT OF COOKE J

(Interim relief)

[1] By application dated 12 May 2023 the applicants, who are acting on behalf of Ngāti Irapuaia o Waioweka hapū (Ngāti Ira), a hapū of Whakatōhea, apply for interim orders preventing the Crown and the Whakatōhea Pre-Settlement Claims Trust (WPCT) from entering a Deed of Settlement settling Whakatōhea’s Treaty grievances. They seek orders declaring:

(a)that, pending further order of the Court, it would be a breach of Ngāti Ira’s tikanga as law and the Crown’s obligations under the Treaty of Waitangi and its principles for the Crown to proceed to sign Whakatōhea, Te Tāwharau o Te Whakatōhea and the Crown: Deed of Settlement of Historical Claim (23 December 2021) in the absence of credible evidence of support from a substantial majority of each of the hapū of Whakatōhea; and

(b)that pending further order of the Court, it would be a breach of Ngāti Ira’s tikanga as law and the trustees’ obligations to sign the Settlement Deed in the absence of credible evidence of support from a substantial majority of each of the hapū of Whakatōhea.

[2] The application is supported by other hapū of Te Whakatōhea – Ngāti Ruatakenga, Ngāi Tamahaua and Te Upokorehe. The application is opposed by the Crown, WPCT and the Trustees of Te Tāwharau o Whakatōhea.

[3] The signing of the Settlement Deed is scheduled for this Saturday, 27 May being the 183rd anniversary of the signing of Te Tiriti o Waitangi by Whakatōhea and the Crown. The signing will involve the settlement of claims that have…

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.

Continue reading Hata v Attorney-General

Details

AGLC: Hata v Attorney-General [2023] NZHC 1255
Case: [2023] NZHC 1255
Decision Date: 25 May 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Te Ringahulia Hata and Te Rua Roger Rakuraku, representing Ngāti Irapuaia o Waioweka hapū of Whakatōhea, sought interim orders to prevent the signing of a Deed of Settlement with the Crown and the Whakatōhea Pre-Settlement Claims Trust. The applicants argued that the settlement would be inconsistent with their tikanga, which they claimed required their consent to be settled. The application was opposed by the Crown and other hapū of Whakatōhea. The court considered the application under the inherent jurisdiction of the High Court, as the proceedings were not brought under the Judicial Review Procedure Act. The court found that the applicants had not demonstrated a strongly arguable case for interim relief. The court considered that the way in which tikanga influenced the Crown's decision-making was nuanced, involving a balancing of various interests. The court found that the applicants' challenge was weak and that the Crown's failure to make changes to its settlement processes, as recommended by the Waitangi Tribunal, did not justify interim relief as it would offend the principle of non-interference with parliamentary processes. The court also found that the applicants had delayed in bringing the proceedings, which was unfair to the members of Whakatōhea who supported the settlement. The application for interim relief was dismissed, and all questions of costs were reserved.

Orders