Hayes v Waitangi Tribunal HC Wellington CP111/01

[2001] NZHC 354

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CP111/01

IN THE MATTER of the Judicature Amendment Act 1972

AND IN THE MATTER of the Treaty of Waitangi Act 1975

BETWEEN HUIA-REI HAYES
First Plaintiff

AND TE RUNANGANUI O TE PAKAKOHI TRUST INCORPORTATED
A tribal organisation representing the Pakakohi Tribe
Second Plaintiff

AND THE WAITANGI TRIBUNAL
First Defendant

AND JOSEPH VICTOR WILLIAMS, CHIEF JUDGE OF THE MAORI LAND COURT
Deputy Chairman of the First Defendant
Second Defendant

AND THE MINISTER IN CHARGE OF TREATY OF WAITANGI NEGOTIATIONS
Third Defendant

AND THE QUEEN
Fourth Defendant

AND NGATI RUANUI MURU ME TE RAUPATU WORKING PARTY
Fifth Defendant

Hearing: 9-10 May 2001

Counsel: J A L Gibson QC and J A R Johnston for the Plaintiffs
W M Wilson QC and K Anderson for the First and Second Defendants
M J Doogan, H Carrad and K Millard for the Third and Fourth Defendants
P J Radich and R E Brown for the Fifth Defendant
J M Dawson for Hopotiki and Other Hapu

Judgment: 10 May 2001

ORAL JUDGMENT OF GODDARD J

[1] There are applications before the Court pursuant to s 4 of the Judicature Amendment Act 1972 (“the Act”) seeking review and setting aside of a Waitangi Tribunal Report and pursuant to s 8 of the Act seeking orders preventing the defendants from taking any steps in relation to that report and prohibiting the third and fourth defendants from acting in consequence of the report. All defendants wish to have the substantive review proceedings determined at the same time as the s 8 proceedings, although the plaintiffs seek interim relief only at this stage. Both applications are, however, so intertwined that determination of the interim relief application essentially depends upon determination of the review issue. There is, in my view, ample information before the Court to enable it to determine the review proceedings, although I note Mr Gibson’s advice to the Court that he might wish to cross-examine some of the deponents in the review proceeding and for this reason seeks to have it left over for consideration.

The Pakakohi and Tangahoe Settlement Claims Report 2000

[2] The Pakakohi and Tangahoe Settlement Claims Report (“the Report”) is the Waitangi Tribunal Report in issue in both proceedings. That Report was issued on 14 November 2000, following a hearing on 1, 2 and 3 November 2000 before Chief Judge Williams of the Maori Land Court (as Deputy Chair), Mr R Maaka and Ms J R Morris. The subject of the hearing were claims by the claimants in WAI 758, being the first plaintiff (for and on behalf of herself and the second plaintiff), and the claimants in WAI 142, Rita Bublitz Aroha Houston and Waveney Stephens (for and on behalf of Te Iwi O Tangahoe Incorporated). Both claims sought to challenge the mandate of the fifth defendant, Ngati Ruanui Muru me te Raupatu Working Party (“the Working Party”), to represent them in settlement negotiations with the Crown. An urgent hearing into these claims had been sought for some time.

[3] On 22 May 2000 the claimants’ applications for urgency came before Chief Judge Williams for a judicial conference, following which the Chief Judge referred the matter to a mediation facilitated by the Tribunal. The mediation however unfortunately failed to resolve the issues between the parties. On 16 October 2000, the claimants requested their applications be revived and a further judicial conference was held on 25 October 2000. again before Chief Judge Williams. In an oral decision, the Chief Judge summed up the issue before the Tribunal as essentially the question of whether Pakakohi and Tangahoe were sufficiently viable and functioning communities in their own right to deserve to be negotiated with separately over the raupatu grievance. He identified two matters which required consideration before a decision on the applications could be reached. First, whether there was a genuine argument about that question and secondly, if so, whether the opportunity to argue the question would be lost if the Crown and the Working Party went ahead as planned and signed a Deed of Settlement. Chief Judge Williams considered the answer to both questions to be in the affirmative and ordered an urgent hearing into the claimants’ applications on 1 and 2 November 2000.

[4] Prior to the hearing, both sets of claimants had filed a precis of the issues in respect of which they sought recommendation by the Tribunal. Those recommendations were the following:

“1. That any settlement purporting to apply to the claimants cease immediately.

2. That the Crown consider Deeds of mandate from the claimants.

3. In the event that such Deeds are approved:

3.1 then the Crown enter into direct negotiations with Pakakohi and Tangahoe;

3.2.1 (Alternatively) that the Crown recognise the independent status of the claimants and ensure that the status and position of the claimants is properly reflected in any settlement of their claims.”

[5] Following the hearing, the Tribunal issued its Report on 14 November 2000. In his covering letter to the Minister, Chief Judge Williams summarised the contents of the Report and the approach taken to the issues by the Tribunal members as follows:

“. . . The claims related to a decision by the Crown to accept the mandate of the Ngati Ruanui Muru me te Raupatu Working Party to settle all the historical claims of Ngati Ruanui, including those of Pakakohi and Tangahoe. The claimants argued that they should have been given an opportunity to negotiate and settle their own claims with the Crown in their own right.

We were mindful of the nature of the dispute which gives rise to this claim and the need to tread carefully in matters relating to mandate in Treaty claims. But we were also mindful of the unparalleled importance of this matter to the future of Ngati Ruanui, Pakakohi, and Tangahoe. With this in mind, we developed four questions to assist in answering the issues raised by these claims. The questions and our answers to them are set out below:

1. Does tikanga or early colonial history (or both) recognise Pakakohi or Tangahoe (or both) as a cultural and political entity distinct from Ngati Ruanui?

We answered this question in the affirmative for both claimant groups.

2. Do Pakakohi or Tangahoe (or both) have claims which are distinct from those of Ngati Ruanui?

We considered that Tangahoe did not have claims which were distinct from those of Ngati Ruanui, but that Pakakohi’s claims were distinctive.

3. Is there sufficient evidence of support for a separate settlement in favour of Pakakohi Inc (the Pakakohi claimants) or Tangahoe Inc (the Tangahoe claimants) (or both) to warrant the Tribunal taking a hard look at the Crown’s handling of the Ngati Ruanui working party mandating process?

After carefully assessing this matter, we concluded that the evidence was insufficient to warrant the Tribunal taking a ‘hard look’ in respect of either claimant group.

4. If there is sufficient evidence to warrant a ‘hard look’ at the matter, were there flaws in the Crown’s handling of that matter of sufficient severity to warrant the Tribunal considering that the Crown’s acceptance of the working party’s mandate to settle on behalf of Pakakohi or Tangahoe or both is unsafe?

As a result of our answer to question 3, it became unnecessary to consider question 4.

In the result, having heard the evidence and arguments for all parties, we were not prepared to recommend a halt to the Ngati Ruanui settlement. Nor were we prepared to recommend that the approach to settlement adopted by the Crown and the working party should be changed. We do, however, express in strong terms our hope that the discussions which commenced between the claimants, the working party, and the Crown during the course of the earlier Tribunal-facilitated mediation process should be continued. We take this view because we believe it is important to ensure that the integrity of the Pakakohi and Tangahoe tradition within Ngati Ruanui is maintained in the settlement between the working party and the Crown. Our reasons for reaching this conclusion are set out more fully in the last section of our report.”

[6] In the Report itself, which is extremely, detailed, the Tribunal members traversed the history of the mandate of the Working Party to settle the historical claims of Ngati Ruanui, including Pakakohi and Tangahoe, in the context of the claimants’ argument that they should be given the opportunity to negotiate and settle their own claims with the Crown in their own right and not as part of one Ngati Ruanui claimant community. Commencing with the Taranaki Report in June 1996, the Report traced through key events, documents and decisions leading to the Crown’s recognition of the Working Party’s Deed of Mandate on 20 April 1998. This included the briefing of the then Hon Douglas Graham, Minister in Charge of Treaty of Waitangi Negotiations, in August 1997 on possible approaches for progressing the settlement of the claims of Ngati Ruanui, Tangahoe and Pakakohi and a letter written by the Minister in consequence of that briefing to Dr Huarangi Waikerepuru, then Chair of the Working Party. In his letter the Minister advised:

“The Crown has yet to come to a position on the status to be accorded Tangahoe and Pakakohi in the negotiation process, and would, prefer it if the groups themselves resolved this issue. If this is not possible, the Crown will await the outcome of the public submission process on the Working Party’s Deed of Mandate before making its decision. The submission process will allow the Crown to assess the size of the Tangahoe and Pakakohi interests and the extent to which they can be represented within the Working Party’s Deed of Mandate.”

[7] A copy of the Minister’s letter was sent to Ms Waveney Stephens of Tangahoe and Ms Piki Parker of Pakakohi. The Tribunal’s Report then details the submissions process and the Working Party’s response to mandate submissions, a risk analysis assessment carried out by Te Puni Kokiri published on 22 December 1997 and details the process leading to Cabinet’s decision to accept the mandate of the Working Party to settle the historical claims of Ngati Ruanui, including for the purposes of settlement, the traditional kin groups known as Pakakohi and Tangahoe. The Report includes the recognition of the Working Party’s Deed of Mandate by Cabinet was on the express conditions that, inter alia:

‘provision is made for the representation of Tangahoe interests through an additional Ngatiki Marae representative on the Working Party’; and

‘continued provision is made for Te Takere Marae representatives on the Working Party to represent Pakakohi interests.

[8] The Report then details the case for each of the claimants and the evidence adduced on behalf of the claimants, followed by reference to the Crown’s case and the evidence adduced in support of that. The Report then concludes with an analysis and the recommendations of the Tribunal. This includes reasoning for and conclusions reached in relation to each of the four questions set out in the covering letter to the Minister.

[9] In concluding, the Tribunal members emphasise their belief that Pakakohi and Tangahoe traditions “must be factored into the settlement deed”. If they are not, the Tribunal members predicted:

“. . . there would be a danger that the Pakakohi and Tangahoe identities would be written out of Taranaki history. That, were it to happen, would create a fresh grievance out of the settlement of an old one.”

[10] Various recommendations follow as to how Pakakohi and Tangahoe traditions ought to be factored into the settlement deed, such as by reference to the inter-relationships between Ngati Ruanui and Pakakohi and Tangahoe. The concluding remarks of the Tribunal are as follows:

“In the end, for the reasons set out, we are not prepared to recommend a halt to the settlement. Nor are we prepared formally to recommend that the approach to settlement adopted by the Crown and the working party should be changed. We consider, however, that discussions along the lines mentioned above should continue, both before and after the Deed of Settlement is signed.”

The Allegation of Bias

[11] The plaintiffs’ case is described as based on breach of natural justice, being apparent or perceived bias on the part of Chief Judge Williams in sitting as presiding member of the Tribunal which issued the Report. On the basis of this alleged bias the plaintiffs seek to have the Report set aside and the defendants prohibited from acting in consequence upon it. The apparent or perceived bias alleged is said to arise from the fact that prior to his appointment as Chief Maori Land Court Judge and Deputy Chair of the Waitangi Tribunal, Mr Williams (as he then was) attended a meeting of the Working Party on 9 July 1997 at the invitation of Mr Sole, a policy analyst, who was acting as principal strategist and claims project manager for the Working Party. Mr Sole was tasked to source appropriate legal representation for the Working Party, to be instructed at the time the Working Party would move into negotiations with the Crown. Expertise in the area of Treaty negotiation was clearly required and for this reason Mr Sole approached Mr Williams’ law firm of Tunnicliffe Walters Williams. As a consequence, and in response to an invitation by the Working Party, Mr Williams attended the meeting of 9 July 1997 to present his credentials and those of his firm in the hope (no doubt) of obtaining instructions to act.

[12] The Minutes of the Meeting record that Mr Williams arrived some time after the meeting had commenced and was briefly updated, after being welcomed, by Dr Huarangi Waikerepuru. The Minutes then record that a discussion took place relating to mandate issues and strategic approach to those. The Minutes are clearly not a complete record but commence with the notation:

“Jo Williams

Mandate

Specific issues at present can be only discussed in principle.”

[13] In his affidavit sworn in opposition to these proceedings, Mr Sole confirms that Mr Williams made it clear at the commencement of discussions that they would necessarily be general in nature. A summary of the Minutes of the Working Party’s discussions with Mr Williams, prepared for the agenda of the next meeting of the Working Party held on 6 August, note the discussion issues as follows:

“1) It is better to aggregate than separate eg Unity of hapu and iwi collectives increases the political clout of the group.

2) Coalitions be as big as possible.

3) Aotea aggregation is a good option.

4) Crown are not your friends. They are essentially your enemy.

5) Marae are real. Hapu are not so obvious, but you have to work out your Runanga representation.

6) Representatives must be accountable to hapu.

7) Tangahoe/Pakakohi are domestic issues.

8) They could be dealt with separately.

9) They must not be ignored, keep dialogue and relationship building going.

10) Mandate isn’t a legal formula. Mandate is a political judgment.

11) Litigation is not a good option.

12) Section 30 approach is necessarily productive.

[14] Mr Sole attributes discussion items 1 and 7-12 above to Mr Williams, but not the other items. Mr Sole deposes that:

“. . . the tone and demeanour of Mr Williams at the meeting was that the best option was to be inclusive and seek conciliation within the wider kinship grouping.”

[15] Mr Gibson pointed to other items of discussion recorded in the Minutes of the meeting of 9 July 1997: for instance a suggestion that no advertised meetings be held in order to counter challenges, especially from Tangahoe; and a suggestion that challenges from Tangahoe and Pakakohi be resolved by destabilising their credibility.

[16] In their Statement of Claim, the plaintiffs’ plead that a solicitor and client relationship existed between Mr Williams and the Working Party at the time of the 9 July 1997 meeting, specifically that he “acted for and gave advice to” the Working Party at that meeting. Mr Gibson further submitted that even if Mr Williams were not formally instructed at that time (which the plaintiffs do not accept), he was present during and privy to the discussions that took place at that meeting. On either basis, Mr Gibson submitted this should have precluded him from later presiding at the Tribunal hearing on 1, 2 and 3 November 2000, particularly given the suggestions recorded in paragraph 15 above. Mr Gibson submitted that in presiding over the matters in issue at the November hearing, after being present at the 9 July 1997 meeting, Chief Judge Williams’ conduct gives rise to a presumption of bias. Actual bias is not alleged.

[17] As evidence that Mr Williams was acting for and advising the Working Party on 9 July 1997, Mr Gibson pointed in particular to a letter written by Mr Williams on behalf of his firm only a matter of days later, on 16 July 1997. In that letter Mr Williams says:

“Tena korua.

SETTLEMENT NEGOTIATIONS

We write to confirm your instructions for us to act in respect of the settlement negotiations for Ngati Ruanui.

We look forward to working with you.

Yours faithfully”

[18] Mr Gibson submitted that the instructions to act confirmed in the above letter continued in force until “the brief was passed to Bell Gully on 28 May 1998”.

[19] Refuting this, the Working Party denies that Mr Williams or his firm were ever acting for it in a solicitor and client relationship or advising it at the meeting of 9 July 1997. Mr Sole deposed in his affidavit that the Working Party did not have any legal representation at that time, but recognised that it would require this as it moved into negotiations with the Crown. He says the purpose of Mr Williams attending the 9 July 1997 meeting was simply for his firm to “tell us about their experience and what they could do for the Working Party in seeking a settlement with the Crown”. Contrary to the assertions made by the first plaintiff, he says Mr Williams:

“. . . never acted for or gave professional advice to the Working Party. [He] met with the Working Party when it was looking to appoint a legal representative to outline his experience and general thoughts regarding negotiation and settlement processes.

From June 1997 until about March 1998, the Working Party was focussed on internal matters such as having its mandate recognised. During this period we did not take any further steps to engage a lawyer to act for the Working Party for the purposes of Treaty settlement negotiations.

On 11 March 1998 an invitation was sent by the Tahua and the Working Party to Bell Gully. ... At that time we were seeking advice on potential restructuring options for Ngati Ruanui, in particular to satisfy the mandate and structure requirements of Te Ohu Kai Moana. I was again instrumental in arranging this meeting as I was aware of Bell Gully’s expertise in this area.

On 6 April 1998 David Tapsell of Bell Gully met with the Tahua and Working Party members to discuss the specific restructuring issues. At that meeting Mr Tapsell also outlined the experience of his firm in the Treaty settlements area.

The Working Party then invited Mr Tapsell to come and meet with it on 4 May 1998 to discuss further the experience of Bell Gully in the Treaty settlements area.

On 13 May 1998 I, together with two of the other Working Party members, Spencer Carr and Pat Heremaia, went to the Wellington office of Bell Gully to discuss further Bell Gully’s experience in acting for iwi in Treaty settlement negotiations.

Pat Heremaia, Spencer Carr and I then flew to Auckland to meet with Mr Williams and his staff at Tunnicliffe Walters Williams. I recall that we were there for about an hour and that Mr Williams and his staff described the sort of work that they did in relation to Treaty settlements for other claimant groups. I do not recall discussing specific Ngati Ruanui issues at that meeting

The Working Party held a teleconference in May 1998 to discuss and decide which law firm it should hire to represent it. I was not part of that teleconference because I was not an elected member of the Working Party and it would have been inappropriate for me to have been part of the decision-making process. I am aware, however, that the Working Party decided to hire Bell Gully to act for it in its negotiations with the Crown. The Working Party wrote to Bell Gully on 28 May 1998 to advise it that it had appointed Bell Gully to act as its legal advisors in respect of its Treaty settlement negotiations with the Crown. ...

Mr Williams was advised that the Working Party had chosen to instruct Bell Gully. We paid Mr Williams for the travel expenses incurred by him in coming to meet with us in Hawera. Mr Williams did not receive any other payment and had no further involvement with the Working Party.”

[20] In a recent Minute (4 May 2001) Chief Judge Williams himself advises that at no time was he instructed as counsel by the Working Party. I note the plaintiffs have not sought to adduce any affidavit evidence from any person present at the meeting to refute Mr Sole’s evidence or that statement by Chief Judge Williams. For instance, it might have been expected that Dr Waikerapuru could have assisted in this regard, if he had been asked.

[21] Leaving aside Chief Judge Williams’ statement in his Minute of 4 May 2001, I am satisfied, on an objective analysis of all available documentation and taking into account Mr Sole’s evidence also, that Mr Williams was never in a solicitor/client relationship or instructed as counsel for the Working Party. My reasons for concluding this are as follows.

[22] First, the Minutes of the 9 July 1997 meeting record (prior to Mr Williams’ arrival) under the heading Correspondence:

“Joe Williams, Tunnicliffe Walters Williams - Barrister & Solicitors

• received a letter and personal profile of himself and his firm . . .

• . . . - in response to the request from the Ngati Ruanui Working Party regarding the firms experience with Treaty matters. Enclosed profiles of partners and associates of the firm - do not have current profiles of the partners but these will be forwarded on as soon as possible.”

[23] Secondly. I interpret the follow-up letter written by Mr Williams on 16 July 1997 as hopeful of triggering a response that his firm was to act for the Working Party in respect of the settlement negotiations. I place this interpretation upon it because of the events which followed and in light of Mr Sole’s evidence.

[24] Thirdly, I point to the summary of the Minutes recording the discussions with Mr Williams at the 9 July 1997 meeting, quoted in paragraph 22 above. The Minutes of the next meeting held on 6 August 1997 are significant as they record, inter alia, as follows:

“Correspondence:

. . .

Letter from Joe Williams - settlement negotiations, Confirm instructions to act in respect of settlement negotiation for Ngati Ruanui.

• Matter of representation not formally discussed, no motions passed. Matter deferred to general for discussion.”

Later in the Minutes of the meeting of 6 August, under General Business, the following is recorded:

“Joe Williams:

• Joe Williams utilisation has not been discussed formally.

• Queried that if the majority of negotiations are to take place in Wellington, then the travel and other incurred costs need to be assessed.

• Legal advisory must be the best representation available. Crown will not enter negotiations without legal counsel.

• Noted that Joe Williams has the skills to best represent - Te Reo, Te Wairua, Te Matauranga.

• Joe Williams stands currently as an invited guest speaker to the Lands Committee.

• Letter needs to be sent to Joe Williams thanking him for the time and perspectives within his discussion.

• There have been no other legal advisors recommended, Joe Williams has a huge international constitution.

Joe Williams discussion to be placed on the agenda for the next meeting.”

There are no Minutes of any subsequent meetings adduced in evidence. I draw the inference from the Minutes of the 6 August 1997 meeting, above, that at that date no steps had been taken to formally engage Mr Williams or his firm as solicitors or counsel and the issue of legal representation was simply shelved for further discussion.

[26] Fourthly, of significance is a letter of invitation dated 11 March 1998 inviting Mr David Tapsell (a senior associate in Bell Gully) to meet with the Working Party for preliminary discussions on 6 April 1998, with Mr Sole nominated as the information contact. Following this, on 28 May 1998, the present Chair of the Working Party wrote to Bell Gully formally advising, inter alia, the following:

“I am pleased to advise the . . . Working Party has voted to offer your firm the opportunity of representing us during the negotiation process subject to an agreement as to terms.

We are keen to progress to negotiations and in that light we are due to address a Consultation Hui on the weekend of 6 & 7 June.

We would like yourself to attend these as discussed . . .

We need to agree on your costs as a matter of urgency .  . . .

. . .I emphasise that the . . . Working Party Solicitors must acknowledge that it will be the . . . Working Party and then ultimately the Iwi who will drive the negotiation and settlement process.

There may be times when your team does not favour certain legal paths but we must feel assured that you are on our side and that you will work closely with the . . . Working Party and Ngati Ruanui Iwi.

We want the best advice on the options available so that we can provide proper options to Ngati Ruanui Iwi .

. . ., if you are willing to treat with us then I expect we should finalise the terms of our arrangement by at least 8 June 1998, . . . Working Party Meeting.

In anticipation of a fruitful relationship I look forward to meeting with you on the weekend beginning 6 June 1998.”

On the basis of all the above, I cannot draw the inference that the letter of Mr Williams dated 16 July 1997 was, as I have said, anything more than an express hope that formal instructions would be received by him and his firm. I am satisfied that neither Mr Williams nor his firm ever received instructions to act for and advise the Working Party and that he did not do so on 9 July 1997.

[27] I turn to Mr Gibson’s alternative submission, that matters discussed with and in the presence of Mr Williams at the 9 July 1997 meeting, gave rise to a conflict which precluded him from subsequently sitting as a member of the Waitangi Tribunal when it dealt with the plaintiffs’ and Tangahoe’s claim at the hearing in November 2000. I see no reason why Mr Williams’ presence and participation at the meeting of 9 July 1997, based on what is recorded as having been said at that meeting, should have precluded him from approaching his judicial task three years later with an open and unbiased mind.

[28] Judging the events which occurred against the established tests for bias: see R v Gough [1993] AC 646 (HC); Riverside Casino Ltd and Casino Control Authority v Moxon (CA 113/00, 19 December 2000); Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 (CA); Man O’War Station Ltd v Auckland City Council [2001] 1 NZLR 552 (CA); Auckland Casino Limited v Casino Control Authority [1995] 1 NZLR 142 (CA). I can find no real danger that Chief Judge Williams might have regarded with favour or disfavour the case of the claimants, or of the Working Party, or of the Crown as the result of anything said at the meeting of 9 July 1997 by anyone. Nothing that was said could be construed as giving rise to the “real danger” that three years later Chief Judge Williams would be improperly influenced towards any particular faction at the November 2000 hearing, or seek to influence the other members of the Tribunal in any improper regard. Furthermore, there is the additional factor that, as counsel for the third, fourth and fifth defendants submitted, the issues as stated by the claimants for the November 2000 hearing were not the same as those mooted at the meeting. The issues for recommendation by the Tribunal are as quoted in paragraph 4 above. Essentially they concern the validity of the Crown’s process in accepting the Working Party’s mandate and rejecting the arguments for separate mandates for Pakakohi and Tangahoe. Although, as the Tribunal acknowledged in its covering letter to the Minister, the unparalleled importance of the matter of separate representation to Pakakohi and Tangahoe remained a live and sensitive issue, it was the Crown’s handling of the Working Party mandating process in respect of which recommendations were sought. In terms of the timing of issues, it may also be of some importance that the Working Party’s Deed of Mandate had been submitted to the Minister (under the Chairmanship of Dr Waikerepuru) by the time of the 9 July 1997 meeting. He cannot therefore be said to have had any input or influence into the formal content of that Deed, or the processes by which it was subsequently accepted by the Crown.

[29] There has been no real articulation of the nature of any perceived risk, or any reason why Chief Judge Williams should have felt bias or prejudice towards or against Pakakohi, Tangahoe, or the Working Party, at the November 2000 hearing.

Certainly there is no suggestion that he had any interest in the outcome, or any affiliation with the factions. If the plaintiffs’ concerns had any foundation in reality, it might rather have been thought that any disfavour felt by the Chief Judge could only have been towards the Working Party, as his firm were not successful in obtaining their instructions. That is, however, entirely improbable.

[30] In conclusion, therefore, I find no real danger or even the remotest possibility of apparent or presumed bias on the part of Chief Judge Williams when he presided as a member of the Waitangi Tribunal in November 2000. On the contrary, it is clear from the sensitive, careful and detailed nature of the Report that Chief Judge Williams and the other members of the Tribunal kept the interests of Pakakohi and Tangahoe to the forefront in making their recommendations.

[31] In view of my findings, it is unnecessary to determine the question of waiver. Suffice it to say however that the defendants’ argument on the point appeared to have some merit.

Is There a Prima Facie Case in Relation to the Substantive Review Proceeding?

[32] Clearly, on the basis of what I have found in relation to the allegations of apparent or presumed bias on the part of Chief Judge Williams, I have also determined there is no prima facie case or arguable issue and thus no position to preserve in relation to the substantive review proceeding. Although I have not been asked to definitively determine those substantive review proceedings it follows that, in my view, those proceedings must fail.

If a Real Risk of Bias Existed?

[33] Even if I had found a “real danger” of apparent or presumptive bias on the part of Chief Judge Williams at the time he presided at the November 2000 hearing. I would decline to exercise my discretion to grant any interim relief because of the events that have occurred since the Tribunal’s Report of 14 November 2000. Those events include delay on the part of the plaintiffs and their failure to take these proceedings until almost coincident with the signing of the Deed of Settlement between the Government, the Crown and Ngati Ruanui, due to take place the day after tomorrow, Saturday, 12 May 2001.

[34] On behalf of the plaintiffs, Ms Piki Parker deposes that if the settlement proceeds then “whatever rights Pakakohi may have will then terminate”. On the evidence before me I do not perceive that fear to be a reality. The express inclusion of Pakakohi and Tangahoe in the Ngati Ruanui mandate should ensure that Pakakohi’s rights are fully safeguarded and ensure that their interests will be met, and that discussions will be ongoing, as envisaged in the Tribunal’s Report.

[35] The events which have superseded the Waitangi Tribunal’s report and which would have persuaded me to decline to exercise my jurisdiction to grant any relief are set out in detail in the affidavit of Mr Hampton, the manager in the Office of Treaty Settlements who has undertaken responsibility for negotiation of the Taranaki historical Treaty claims. Mr Hampton has worked on the Ngati Ruanui claims from the commencement of pre-mandate discussions in 1997. The significant dates and events described by him are as follows:

“On 4 December 2000, Cabinet approved the content of the proposed Ngati Ruanui settlement package. The Minister in Charge of Treaty of Waitangi Negotiations was authorised to initial a Deed of Settlement.

. . .

On 1 March 2001, the Minister in Charge of Treaty of Waitangi Negotiations initialled the Deed of Settlement. This was conditional upon ratification by the claimant community.

Between 12 March and 6 April the Working Party undertook a ratification process. This involved a postal ballot of all adult registered members of the claimant community including those who identify as Tangahoe and Pakakohi. Registered members received a voting form and a comprehensive summary of the provisions of the Deed of Settlement. There were four well publicised communication hui (Auckland, Wellington, Christchurch and Taranaki). Copies of the Deed were available from the Working party and from the OTS website and also from the OTS office. Relevant information was also available at TPK regional offices. The outcome of that process led to a very strong vote in favour of ratification (88% of those who voted). Participation in the voting was high by relative standards (60% of the eligible voters). This is the highest for any Treaty settlement to date.”

[36] The above events, in particular the ratification of the Deed of Settlement by the Ngati Ruanui claimant community, and the prejudice to that community (the members of which total approximately 4,000) which will result if Saturday’s proposed settlement is delayed, are significant factors which would have weighed heavily against the plaintiffs. Coupled with this, the issue of bias (which I have not found established) was not raised until after the Deed of Settlement was initialled in March 2001.

[37] A further factor which would have weighed against the plaintiffs is the very real question of justiciability. Although the substantive application for review seeks to set aside the Report of the Waitangi Tribunal, what in effect is sought is a review of the Crown’s decision to recognise and accept the mandate of Ngati Ruanui to enter into settlement negotiations with the Crown, including on behalf of Pakakohi and Tangahoe. Such an attempt must fail because the process which it is sought to review is essentially political, involving questions of policy and political judgment. The Crown’s decision to recognise the mandate of the Working Party in 1998 and subsequent decisions taken in the course of negotiations leading to the initialling of the draft Deed of Settlement were, as Mr Doogan submitted, “all high level policy and political decisions”. For this reason the plaintiffs’ claims come within the category of non justiciable moral Treaty claims, which the scheme of the Treaty of Waitangi Act 1975 recognises are for ultimate negotiation between the Crown and Maori. Therefore unless there is clear evidence of misfeasance in public office, fraud or the like, such political decisions are inviolate and non-reviewable (see: for instance, Kai Tohu Tohu o Puketapu Hapu Inc v The Attorney-General and another (High Court, Wellington Registry, CP344/97, 5 February 1999, Doogue J); Greensill v Tainui Maori Trust Board (High Court, Hamilton, M 117/95, 17 May 1995 Hammond J); CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA); and Wellington City Council v Woolworths [1996] 2 NZLR 537 (CA)). In the present case there is no allegation of any such misfeasance, fraud or such like. Furthermore, it cannot be said that any of the actions of the defendants which it is sought to restrain are necessarily consequent upon the Tribunal’s Report, as that report is recommendatory in nature only. The Government does not require mandate for settlement negotiations to be sanctioned by the Waitangi Tribunal and the Tribunal’s recommendations are not binding. Importantly also, as I have already noted, the Tribunal’s Report has been well superseded by the ratification process outlined in Mr Hampton’s affidavit. The 88% vote (of 60% of eligible voters) in favour of ratifying the Deed of Settlement, as initialled by the Crown and Working Party, reflects the overwhelming support of the Ngati Ruanui claimant community, which includes Pakakohi and Tangahoe, for the Deed of Settlement. The prejudice that would result to that claimant community by further hearings and delay is obvious.

Judgment

[38] The applications for interim relief are declined.