Koia v Waitangi Tribunal HC Wellington CIV-2010-485-1519
[2011] NZHC 47
•22 February 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2010-485-1519
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF decisions under the Treaty of Waitangi Act
1975
BETWEEN ALLAN HENRY KOIA Plaintiff
ANDTHE WAITANGI TRIBUNAL First Defendant
ANDTHE ATTORNEY-GENERAL Second Defendant
Hearing: 27 January 2011
Counsel: Plaintiff in person
No appearance for first defendant (abiding the outcome) C D Tyson and R M Hogg for second defendant
Judgment: 22 February 2011
RESERVED JUDGMENT OF DOBSON J
KOIA v THE WAITANGI TRIBUNAL HC WN CIV-2010-485-1519 [22 February 2011]
Contents
Factual background .......................................................................................................................... [2] The Tribunal’s WAI 2190 Report................................................................................................... [13] Complaints on judicial review ........................................................................................................ [23] First claim: Tribunal wrong in treating its Report as completing the relevant inquiry ................ [26] Second claim: Tribunal’s recommendations were ultra vires ....................................................... [35] Third claim: Flawed methodology................................................................................................ [47] Fourth claim: Tribunal took into account irrelevant matter......................................................... [57] Fifth claim: Failure to take into account a relevant matter.......................................................... [62] Sixth claim: Failure to understand the WAI 1301 case................................................................. [68] Seventh claim: Focusing on the wrong Crown actions................................................................. [74] WAI 2268.......................................................................................................................................... [79] First criticism: Chief Judge’s delegation to Judge Coxhead was wrong in law ........................... [86] Second criticism: Absence of recognised opportunity to reply ..................................................... [91] Third criticism: Decision not to appoint counsel to assist Mr Koia was wrong in law ................ [98] Criticisms 4 and 5: Misapplication of both stages of the test for recusal ................................... [103] Summary ........................................................................................................................................ [120] Scope of appropriate relief ......................................................................................................... [121] Costs ............................................................................................................................................... [125]
[1] In these proceedings, Mr Koia seeks judicial review of decisions and actions taken by the Waitangi Tribunal (the Tribunal) in respect of two claims before the Tribunal. Some background is necessary to understand the context of the Tribunal decisions, and the grounds advanced for seeking review of them.
Factual background
[2] Mr Koia identifies himself as belonging to the Ruawaipu iwi, the rohe of which he describes as existing in the northern part of the East Coast of the North Island, approximately between Hicks Bay and Ruatoria. Mr Koia’s mission is to pursue claims for recognition of Ruawaipu as an iwi distinct from the dominant presence in the area, Ngāti Porou. He claims ancestry distinct from the genealogical lines of Ngāti Porou. Mr Koia has focused on the Crown’s part in an alliance it forged with Ngāti Porou during hostilities on the East Coast in the 1860s as constituting breaches of Treaty principles, essentially because that alliance failed to protect Ruawaipu’s separate standing, and its rights to control property. Mr Koia’s concerns were reflected in an historical claim lodged with the Tribunal in late 2005 as the “Ruawaipu ethnic suppression claim” which was allocated reference number WAI 1301 by the Tribunal.
[3] Since 2006, Ngāti Porou and the Crown have advanced negotiations for settlement of all historical grievances, which process is a recognised alternative to pursuit of claims before the Tribunal. The Crown policy when engaging in such negotiations is to require a single set of negotiations in relation to a relatively large area (“large natural groupings”), in this case the East Coast of the North Island from Gisborne north to East Cape. It is also Crown policy to leave the formulation of an adequate mandate to negotiate for those with claims within a defined geographical area, to those purporting to speak for the affected claimants. That stance is subject to the Crown being satisfied that a mandate, once presented to it as sufficiently settled, is indeed sufficient.
[4] An iwi organisation from Ngāti Porou, Te Rūnanga O Ngāti Porou (the Rūnanga) presented itself as having a mandate to negotiate East Coast claims, and after consultation and consideration, the Rūnanga’s mandate was recognised by the Crown in or about April 2008. The Rūnanga and the Crown have subsequently reached agreement, and it is in the process of being ratified in anticipation of legislation which would formally enact the settlement. At the time of hearing, a Parliamentary Bill was due for introduction into the House some weeks hence. A subsequent Memorandum filed on behalf of the Attorney-General on 16 February
2011 confirmed that the Bill had been introduced the previous day.
[5] The terms of settlement include the abandonment of all outstanding historical claims arising within the East Coast area. That means that Ruawaipu’s claims could not be pursued.
[6] Mr Koia characterises the Rūnanga’s attitude in asserting a mandate to negotiate in respect of all the claims as denying the separate existence of Ruawaipu. Rather, Mr Koia characterises the Rūnanga as treating Ruawaipu as subsumed within Ngāti Porou. It appears that other claimant groups similarly denied that they were Ngāti Porou, so that the Rūnanga could not have a valid mandate to represent them
in settlement negotiations.[1]
[1] Other such groups, not taking part in the present proceedings, are identified in the Tribunal’s
WAI 2190 Report as Te Aitanga-a-Hauiti, Uepohatu and Hapuoneone.
[7] Anticipating the course of events that has ensued, in about October 2008 a further claim was submitted to the Tribunal on behalf of Ruawaipu, one aspect of which complained of the Crown’s conduct allegedly in breach of Treaty principles, in accepting the scope of the mandate asserted by the Rūnanga. The October 2008 claim was allocated the same reference number as WAI 1301. The terms of that claim were amended in May 2009.
[8] From April 2008, initiatives were undertaken to have the Tribunal deal with issues bearing upon any settlement of East Coast claims as a matter of urgency. In November 2008, a Tribunal Presiding Officer declined an urgency application but subsequently in 2009 another Presiding Officer ordered that there be an urgent hearing for five claims raising overlapping issues, including those in WAI 1301. The consolidated claims to be dealt with at an urgent hearing were allocated the number WAI 2190 and hearings took place in December 2009, leading to the Tribunal’s
Report on WAI 2190 in May 2010 (the Report).[2] Although the Report found that
there had been “flaws” in the process followed by the Crown, no relief was recommended that would delay the proposed settlement or would exclude Ruawaipu’s claims from those being settled.
[2] Waitangi Tribunal The East Coast Settlement Report:WAI 2190 (Legislation Direct, Wellington, 2010)
[9] Mr Koia’s first group of challenges is to the lawfulness of the Tribunal’s
May 2010 decision in WAI 2190.
[10] On 6 May 2010, Mr Koia submitted a further claim to the Tribunal concerning the prior consent of Ruawaipu as a pre-condition of the Rūnanga being mandated to negotiate for it. He contemporaneously applied for an urgent hearing and submitted that it would not be appropriate for any of the Tribunal members, including the Presiding Officer (Judge Coxhead), who comprised the Tribunal for WAI 2190 to be appointed in respect of the subsequent claim.
[11] That claim was given the number WAI 2268. On 18 May 2010, the chairperson of the Tribunal delegated to Judge Coxhead the role of Presiding Officer
in respect of the application for urgency and directed that Judge Coxhead ought to
deal with Mr Koia’s proposal that Judge Coxhead be recused from dealing with
WAI 2268.
[12] Thereafter Judge Coxhead declined to recuse himself from dealing with WAI 2268 and declined Mr Koia’s application to have counsel appointed to assist him in WAI 2268. Those decisions are the subject of the second aspect of Mr Koia’s application for judicial review.
The Tribunal’s WAI 2190 Report
[13] The Report briefly summarised the substantive nature of five separate claims, the common feature being the claimants’ concerns that they had identities distinct from Ngāti Porou, and that the Rūnanga could not speak for them in negotiations that could lead to their substantive claims being extinguished. Accordingly, the issue in the urgency hearing was the adequacy of the Crown’s conduct leading to acceptance of the Rūnanga’s mandate. That conduct was to be measured against the Crown’s previously identified standards for Treaty negotiations in a publication commonly
known as “The Red Book”. It provided:[3]
Mandated representatives need to demonstrate that they represent a claimant group, and the claimant group needs to feel assured that the representatives legitimately gained the right to represent them. This can only be achieved through a process that is fair and open.
[3] The Report at 11.
[14] The Report explicitly did not consider matters of tribal identity relevant to the
claimants’ substantive claims.[4]
[4] Page 2 of the Tribunal’s letter to the Ministers of 18 May 2010, and the Report at 62.
[15] The Report acknowledged material concerns that there was no detailed list of the claims that would be settled made available to interested persons when the Rūnanga was canvassing support for its mandate, and that this list was only clarified after the Rūnanga had gone to the Crown claiming it had established a sufficient mandate. Further, that the Rūnanga’s process required those wishing to vote on its proposed mandate to register as Ngāti Porou beneficiaries, when that was likely to be
seen by interested persons sharing Mr Koia’s perspective as conceding the absence
of any separate tribal identity, when such separateness was of fundamental importance to them.[5]
[5] The Report at 22 and 55.
[16] The Report outlined debates on the issue of whether having claims extinguished against their will leads to undue prejudice for Treaty claimants.[6]
[6] The Report at 9 and chapter 3.
[17] The Report acknowledged the reality that settlement proposals, and mandates to negotiate them, cannot realistically expect universal support, and that minority opposition should not be allowed to hold up settlement of historic grievances where initiatives command substantial support and can, overall, be justified as pursuing the greater good.
[18] In the Report, the Tribunal reflects considerable efforts to assess the extent of
support for the claimants’ opposition to the Rūnanga’s mandate. The Report records:
That Ruawaipu lacks a formal structure, the opposition appears to be small in size (although not established with certainty) and that there was no specific hapu or marae identified that solely support Ruawaipu’s
claims as advanced by Mr Koia.[7]
[7] The Report at 23.
Others of similar descent to the claimants do support the Rūnanga’s
mandate.[8]
[8] The Report at 21, 35, 63-64.
In October 2008, 118 people submitted a petition to the Tribunal asserting that they represented Ruawaipu and did not support the Rūnanga’s
mandate.[9]
[9] The Report at 33.
The level of opposition to the Rūnanga’s mandate may have been
exaggerated by multiple voting (although this concern may have been confined to claimants other than Ruawaipu).[10]
[10] The Report at 36.
The Tribunal did not consider that the indicative vote against the
Rūnanga’s mandate provided substantive evidence of support for the claimants’ position.[11]
[11] The Report at 36.
Ngāti Porou treats Ruawaipu as a qualifying ancestor, and that heritage is reflected in the deed of mandate which would qualify persons claiming
descent from Ruawaipu as beneficiaries.[12]
[12] The Report at 16, 19.
All those opposing the Rūnanga’s mandate will be able to share as
Ngāti Porou in the benefits of settlement.[13]
[13] The Report at 60.
[19] The Report treated the level of support for opposition to a mandate as an important factor, acknowledging that it was difficult in these cases to assess precisely, and that ultimately evidence of the extent of that support was not forthcoming.[14]
[14] The Report at 38, 39, 62.
[20] Essentially on the basis of these findings of a relatively insignificant level of opposition to the Rūnanga’s mandate in numerical terms, the Report concluded that the identified flaws in the mandating process (both by the Rūnanga in seeking the mandate and in the Crown’s review of the validity of that mandate) were not sufficiently serious to warrant any relief which would have recommended delays to the remaining steps in the settlement process.
[21] Mr Koia labelled the Crown process, and the approach of the Tribunal in reviewing it, as “political”. I take this to mean that the approach was influenced by perceptions of the course that was supported by, or at least acceptable to, a majority of those interested. Mr Koia used the label “political” as a pejorative to the extent that a principled outcome respecting the rights of all stakeholders may be relegated to a pragmatic outcome that is supported by a majority. Here, the core complaint is that claims of separate identity will be extinguished, having been negotiated out of
existence by the dominant iwi that is alleged to be at least partly responsible for that
suppression of identity. Relevantly, the Crown was allegedly complicit in the historic grievance and in now sanctioning Ngāti Porou’s claim to a mandate to negotiate for those whom Mr Koia claims to have been suppressed by it.
[22] Having found that the Crown’s errors “were [not] of a sufficient magnitude for it to have fallen foul of Treaty principles”,[15] the Report went on to make a series of recommendations, first about steps that might be taken to ameliorate the concerns of the claimants in the remaining stages of the Ngāti Porou settlement process, and secondly in relation to possible improvements in the Crown’s process for approving mandates in other cases.
Complaints on judicial review
[15] The Report at 60.
[23] It is easy to identify with a sense of injustice when a process for considering the existence of a relevant grievance is subverted by the two parties who are claimed to have caused the grievance in the first place. It is also easy to identify with concerns that extinguishing a grievance over the protest of those advancing it risks creating a new grievance, irrespective of whether the original grievance is justified or not. Here, no view has been or could be formed on whether the historical claims Mr Koia has sought to pursue in the Tribunal would be made out. The Crown’s stance appears to assume that the benefits of the settlement with Ngāti Porou will sufficiently assuage the concerns of those who might support Mr Koia, for Ruawaipu’s distinct grievances to be resolved by the positive outcomes achieved within the settlement with Ngāti Porou.
[24] However, as Mr Koia recognised, this is not an appeal from the merits of the Tribunal decision. The issues on review are confined to criticisms of the lawfulness of the process by which the Tribunal arrived at its conclusions and made its recommendations.
[25] Mr Koia advanced seven challenges to the Report. These are as follows:
(a) First, that the Tribunal did not complete its statutory function in reporting on WAI 2190 in that it did not address and make findings on the claims specified in the Statement of Claim for WAI 1301.
(b)Secondly, that the Report includes recommendations which the Tribunal had no jurisdiction to make in the absence of a prior finding of a well-founded claim having been made out on behalf of the claimant.
(c) Thirdly, that the Tribunal failed to follow the process required of it under s 6 of the Treaty of Waitangi Act 1975 (the Act). Mr Koia characterised s 6 as requiring a two-stage process: first whether a claimant had made out a well-founded claim causing prejudice which has been caused by Crown conduct in breach of Treaty principles, and only thereafter to advance to the second stage of what, if any, remedial action should be recommended.
(d)Fourthly, that the Tribunal had regard to an irrelevant matter in taking into account High Court and Court of Appeal decisions in relation to the Tribunal’s dealing with another urgent inquiry in relation to Ngā Wairiki.
(e) Fifthly, that the Tribunal did not take into account all relevant matters.
Under this head, Mr Koia argued that the extent of prejudice caused to third parties by any relief granted in favour of the claimants could be ameliorated by the payment of interest on settlement monies, and that the Tribunal failed to have regard to that in balancing the relative extents of prejudice.
(f) Sixthly, that the Tribunal misunderstood the case made for Ruawaipu in argument before it. It allegedly dealt with the claim on the extent of likely prejudice to the named claimant as an individual, rather than whether consent for the Rūnanga to negotiate on behalf of the Ruawaipu people had been given on an adequately informed basis.
(g)Seventhly, that the Tribunal had focused on the wrong act undertaken by the Crown. Whereas the Tribunal focused on the Crown’s interaction with claimants, Mr Koia argued that the Tribunal should have focused on the adequacy of the Crown’s scrutiny of the Rūnanga’s mandating process to ensure that informed consent had been provided by Ruawaipu.
First claim: Tribunal wrong in treating its Report as completing the relevant inquiry
[26] Mr Koia’s Amended Statement of Claim in WAI 1301 dated 21 May 2009 cited four specific acts or omissions by the then Minister for Treaty Negotiations between November 2007 and October 2008 that were said to breach Treaty principles, and failed to protect the interests of Ruawaipu. In addition, that claim cited as a fifth specific concern the prospect that legislation to remove the Tribunal’s jurisdiction to inquire into Ruawaipu’s ethnic suppression claim would also be inconsistent with Treaty principles and likely to prejudice the claimant.
[27] Mr Koia argued that the Tribunal had not completed an inquiry into WAI 1301 because it had not addressed each of these specific pleaded criticisms of the Crown, and nor had it made individual findings in respect of each of them. He argued that these failures led the Tribunal into an error of law in its overall conclusion that it had completed its statutory task in respect of WAI 1301.
[28] Mr Koia cites the terms of s 6(2) of the Act which makes it mandatory for the Tribunal to inquire into every claim submitted to it unless certain exceptions, which are not relevant in present circumstances, apply. On his argument, it follows from that obligation that the Tribunal had to inquire into the five separate claims pleaded in his WAI 1301 amended claim.
[29] In denying that the Tribunal had committed any reviewable error in the Report, the Crown submitted that the context in which WAI 2190 was heard is important. First, the Tribunal consolidated five claims, reflecting the concern common to all of them, namely the inadequacy of the Crown’s consideration of the
Rūnanga’s claimed mandate. Secondly, the Tribunal had acknowledged the concerns
of all claimants to have the central issue addressed as a matter of urgency.
[30] The Crown argued that those considerations necessarily affect the level of detail that can reasonably be expected of the Tribunal when reporting. The Crown submitted that a more exacting standard that might be appropriate for a single claim thoroughly heard and determined over a period of years cannot equally apply to the standard expected of the Tribunal in consolidated claims determined as a matter of urgency.
[31] The Crown’s point about context is valid. The Tribunal could not reasonably have been expected to complete a determination in the time frame it did if it descended into the level of detail consistent with Mr Koia’s expectation of explicit consideration and determination of each of the pleaded criticisms in his amended claim. I was not given the details of the scope of the other claims that were consolidated for the purposes of the urgent hearing. It seems likely that at least some of them would have lists of specific criticisms similar in extent to WAI 1301.
[32] The specific criticisms pleaded by Mr Koia in WAI 1301 were all consistent in that they were variations on the same type of alleged inadequacy on the part of the Crown. The Report treated the specific instances as part of a pattern of conduct that was similarly the subject of concern to the other claimants who were granted urgency in WAI 2190.
[33] The Tribunal did answer the totality of the criticisms, so far as those criticisms reflected the course of conduct on behalf of the Crown. The Tribunal acknowledged that there were flaws in what occurred but, weighing their effect together, found that they were not enough to make the Crown fall foul of Treaty principles. Given that the assessment of the Crown’s conduct overall did not find a breach, there is no basis for suggesting that separate analysis of the specific instances would have come to any different conclusion.
[34] To measure the Tribunal’s reasoning against each of the pleaded allegations at
any greater level of detail would require a general right of appeal, which is not
possible on judicial review where the issue is whether it was lawful for the Tribunal to proceed as it did. I find in respect of this first criticism that it was lawful for the Tribunal to deal with the issues raised, inter alia, by Mr Koia’s claims, in the way that it did.
Second claim: Tribunal’s recommendations were ultra vires
[35] The Tribunal’s jurisdiction to consider claims is provided for in s 6 of the Act. Any Māori may claim that he or she, or any group of Māori of which he or she is a member, is or is likely to be prejudicially affected by any of a defined range of formal steps that were or may be taken in the name of the Crown. A claim must arise in circumstances where the Crown’s conduct or omission was or is inconsistent with the principles of the Treaty. Subsection (3) prescribes a power to make recommendations in the following terms:
6 Jurisdiction of Tribunal to consider claims
...
(3) If the Tribunal finds that any claim submitted to it under this section is well-founded it may, if it thinks fit having regard to all the circumstances of the case, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.
[36] Mr Koia argued that there is no finding in the Report that any claim considered in it was “well-founded”. Until that stage is reached, the terms of s 6(3) do not operate so that the Tribunal has no jurisdiction to make recommendations, other than in respect of well-founded claims. Mr Koia sought a declaration that the recommendations made were ultra vires the Tribunal’s authorising statute. He also sought an order quashing those recommendations with a direction that the Tribunal reconsider the matter and make recommendations in accordance with the Act and the claims asserted in his WAI 1301 settlement claim.
[37] The Crown accepts that the Tribunal did not find any of the claims to be well-founded in terms of s 6(3), but argued that the recommendations made are, as a consequence, not s 6(3) recommendations. Further, that the recommendations made
can only be helpful to claimants in the position of Mr Koia, and therefore there would be no utility in having them quashed.
[38] Although the point was not argued in any detail, there does not appear to be any scope for the Tribunal to recognise a claim as “well-founded” unless the elements under s 6(1) of the Act are present. Accordingly, the Tribunal has to find that the claimant is or is likely to be prejudicially affected by defined categories of acts or omissions on behalf of the Crown, and that such acts or omissions were or are inconsistent with the principles of the Treaty.
[39] The Tribunal’s relevant conclusion was:[16]
The mandating process approved by the Crown should, in our view, have provided greater opportunity for opponents who did not want to register with [the Rūnanga] to express their views. In particular, individuals whose claims might be affected should have been informed of this before the mandate vote. But that said, the Crown did consult with the claimants, even if that consultation could have been more timely. Overall, we cannot conclude that in the present case the Crown’s errors in process were of a sufficient magnitude for it to have fallen foul of Treaty principles.
[16] The Report at 60.
[40] The essence of Mr Koia’s complaint was that Ruawaipu has been included in the Ngāti Porou-led settlement against its will. The ultimate relief addressing that concern would be a recommendation that Ruawaipu be excluded from the settlement until those asserting its separate identity are able to have their claims determined. The substantive issue of the separate identity of Ruawaipu was beyond the scope of the issues addressed under urgency by the Tribunal. Nonetheless, the Tribunal has recommended that the Crown take steps to ensure appropriate inclusion of those identifying as Ruawaipu in the settlement of East Coast claims. The recommendations urge the Crown to ensure that the interests Mr Koia identifies with Ruawaipu are adequately provided for in the East Coast settlement.
[41] It can readily be inferred that the Tribunal included these recommendations in recognition of concerns voiced by Mr Koia. They are intended to protect those in the position of Mr Koia. However, they do not placate him because, in accepting that
the Ngāti Porou-led East Coast settlement will proceed, recommendations that
Ruawaipu be dealt with equitably within that settlement bolster the Rūnanga’s opposing view that Ruawaipu are not entitled to separate recognition. In short, Mr Koia argued that he would be better off without such recommendations.
[42] For that reason, it is inappropriate for the Crown to infer that Mr Koia is harming his own interests by its submission that there would be no utility for Mr Koia in having these recommendations quashed.
[43] The second aspect of the Tribunal’s recommendations related to steps it considered should be undertaken by the Crown in future when entering into negotiations with those claiming a mandate to do so. The Tribunal’s concern was that if the flaws it had identified were “...replicated in future settlements, [they] may well put at risk the durability of those settlements”.[17] This type of prospective recommendation is expressly contemplated by the last part of s 6(3) of the Act. There is not the same rationale for confining the circumstances in which the Tribunal might make such prospective recommendations that do not seek to influence the
relationship between the Crown and particular claimants, as is the case for recommendations made in relation to claimants once the Tribunal is satisfied that their claims are well-founded. Given the position the Tribunal has attained in the relationship between Māori and the Crown since its enabling legislation, it may well be advantageous that it should have additional jurisdiction to make prospective recommendations to the Crown, unrelated to the recognition of any particular claim as “well-founded”. However, that situation is not the one concerning Mr Koia in his present challenge.
[17] The Report at 66.
[44] As with civil litigants in all fora, claimants before the Tribunal can have no assurances of success. In pursuing a claim that Māori are prejudiced by Crown conduct or omissions, in circumstances where that conduct or omission is claimed to breach Treaty principles, all claimants run the risk that their claims will be rejected as not being well-founded. In practical terms, that is the extent of the downside risk. Because of the limit on the Tribunal’s jurisdiction under s 6 of the Act, an unsuccessful claimant is not exposed to the additional risk of a gratuitous
recommendation contrary to the interests of that particular claimant. Such gratuitous
but unauthorised recommendations could include ones that the claimants’ interests should be dealt with in a particular way when that recommendation is inconsistent with the course of continuing conduct by the Crown that the claimant was seeking to influence.
[45] In seeking to distinguish the recommendations made in this case from the type contemplated by s 6(3), Mr Tyson was unable to point to any other authority for the Tribunal to do so, apart from the prospect of some open-ended power arising from its status as a commission of inquiry. Given the structure of s 6, that is not a realistic alternative. Recommendations are the form of relief the Tribunal is empowered to make, and at least in the present context recommendations bearing upon the predicament of particular claimants depend on their claims being well-founded.
[46] I am accordingly satisfied that Mr Koia is entitled to a declaration that the Tribunal’s recommendations in the Report, at least to the extent it addressed the Ngāti Porou settlement, were made without jurisdiction.
Third claim: Flawed methodology
[47] Mr Koia argued that s 6 of the Act contemplates a two-stage process, and that failure to adhere to that “most logical way of going about its business” means that the Tribunal produced recommendations that are wrong because they arise from a flawed methodology.
[48] Mr Koia’s expectation as to process would have the Tribunal focusing in the first stage on whether claims to prejudice suffered by the claimants that arise from conduct or omissions on the part of the Crown were made out, and whether the Crown’s relevant conduct or omissions were inconsistent with the principles of the Treaty. Once those elements are made out (ie such claims are “well-founded”), then, only in the second stage of the process, should the Tribunal assess matters such as countervailing prejudice to third parties that would follow from its making recommendations to address the prejudice recognised for claimants.
[49] Here, Mr Koia contended that the Tribunal compromised the first stage by wrongly considering prejudice to others (namely those supporting Ngāti Porou’s settlement initiatives) at the first stage, at which point that was irrelevant.
[50] The Crown denies that the Tribunal compromised the first stage of the inquiry process. Before it addressed the respective forms of prejudice, the Tribunal had noted:[18]
The Panel carefully considered the implications of these flaws but we were not convinced that they were severe enough to warrant calling negotiations to a halt.
[18] The Report at 59.
[51] Whilst that observation might suggest a finding that the Crown had been in breach of Treaty principles to some extent, in light of the concluding paragraph on the absence of breach,[19] the Tribunal’s reasoning is to be interpreted as identifying the deficiencies (“flaws”) in the Crown’s conduct as not constituting conduct in breach of Treaty principles.
[19] As quoted in [39] above, from the Report at 60.
[52] Of itself, that finding prevented the Tribunal going on to make recommendations such as to disrupt the process being pursued by the Crown and the Rūnanga. It is a primary finding that stands on its own, and is not influenced by any countervailing consideration of the extent of prejudice that would be caused to third parties if delaying the settlement might otherwise be recommended.
[53] The Tribunal went on to evaluate the comparative extents of prejudice to the claimants who opposed the proposed settlement on one hand, and the prejudice to its supporters on the other. This was assessed as an aspect of attempting to quantify the extent of support for the stance of these claimants, when compared with the extent of support for the Rūnanga’s settlement. As the Tribunal observed:[20]
To put it simply, numbers matter.
[20] The Report at 61.
[54] The Tribunal recognised that:
precise quantification of the numbers supporting the claimants was difficult;
those opposing the Rūnanga’s mandate had been given numerous
opportunities to demonstrate the extent of that opposition;
an assessment undertaken for the Office of Treaty Settlements which
suggested relatively modest support was probably correct; and
some who voted against the Rūnanga’s mandate were not supporters of
the claimants in the present inquiry.[21]
[21] The Report at 61-63.
[55] These points justified an alternative rationale for not making the recommendations sought by the claimants. Accordingly, even if the Tribunal was wrong in finding the Crown had not breached Treaty principles, these findings supported a decision not to make the recommendation sought.
[56] Given the scope of matters traversed before the Tribunal in its inquiry and, again, the relevance of the context in which it was heard urgently, it was appropriate for the Tribunal to form a view and report on issues including the extent of support for the claimants’ position, the nature of the prejudice those persons would suffer, and the countervailing impact on those who supported the mandate. The absolute distinction Mr Koia contended for between the nature of the Crown’s acts or omissions that might arguably be in breach of Treaty principles, and the context in which that conduct occurred, cannot be maintained. All of these elements are relevant components of a somewhat complex evaluative task. There was no breach of the process required by s 6 of the Act in the Tribunal producing a report that
considered potential forms of prejudice as it did.
Fourth claim: Tribunal took into account irrelevant matter
[57] Mr Koia criticised the Tribunal for having regard to the Court of Appeal’s decision in Attorney-General v Mair.[22] Mr Koia argued that the factual context in which he has pursued his claims is different from the position of Ngā Wairiki, which had attempted to assert its separateness from Ngāti Apa in the proceedings before the Tribunal that were reviewed in Mair. Differences between Ngā Wairiki and Ruawaipu cited by Mr Koia included that the Ngā Wairiki claimants did not claim
that the Crown had marginalised their tino rangatiratanga through a military alliance with Ngāti Apa (as he claims happened in relation to Ruawaipu as a consequence of the alliance between the Crown and Ngāti Porou). Further, there was no criticism that Ngāti Apa had not expressly sought a mandate from Ngā Wairiki to negotiate Ngā Wairiki’s claims (in contrast to Ngāti Porou who did not acknowledge the separate identity of Ruawaipu).
[22] Attorney-General v Mair [2009] NZCA 625.
[58] However, there is no prospect that these factual distinctions caused the Tribunal to inappropriately or irrelevantly rely on the Court of Appeal’s decision in Mair. The Court of Appeal’s decision was relevant to the Tribunal’s reasoning on two points. First, the Court of Appeal’s consideration of the Crown’s settlement policy, in particular addressing the question as to whether it is reasonable for the Crown to extinguish claims against the will of those who submitted them. The Court of Appeal’s approach to this issue focused on the relative extent of support behind claimants who oppose a mandate. Secondly, the Tribunal referred to the Court of Appeal’s weighing up of respective forms of prejudice that would be caused to claimants on the one hand, and to others interested in completing a settlement, on the other. The Tribunal observed that the relevance attributed to this issue by the Court
of Appeal:[23]
...leaves us with little choice but to try and make some assessment of the level of support for the claimants, compared with the support for [the Rūnanga].
[23] The Report at 61.
[59] The Court of Appeal’s views on those two matters were clearly relevant to the
substance of the issues before the Tribunal, and there is no justification for a
criticism that in doing so the Tribunal had regard to irrelevant matters simply because there are different matters of factual detail when the circumstances of Ngā Wairiki are compared with the circumstances in the present case.
[60] The Mair proceedings were primarily concerned with whether the Tribunal had erred in declining to hear an application urgently. In the High Court, MacKenzie J found that the decision not to grant urgency constituted an error and sent the Ngā Wairiki claim back to the Tribunal. However, the Attorney-General appealed that decision and it was overturned by the Court of Appeal. In the present case, when Judge Clark decided to set WAI 2190 down for urgent hearing, MacKenzie J’s decision had recently been issued. However, by the time the Tribunal came to conduct the urgent hearing of WAI 2190, the Court of Appeal’s decision had expressed its contrary view about the Tribunal decision on an application for urgency. For that reason as well, it was appropriate for the Tribunal to have regard to the Court of Appeal’s approach to the matter.
[61] Accordingly, the fourth claim cannot be made out.
Fifth claim: Failure to take into account a relevant matter
[62] Counsel advancing argument for WAI 1301 at the Tribunal hearing of WAI 2190 downplayed the prejudice that would be suffered by those supporting the proposed settlement with the Crown:[24]
...there is the potential for minor injury to Ngāti Porou, by way of fiscal implications, if settlement negotiations with the Crown were to be parked for three or four years, pending a Tribunal report on the East Coast claims.
[24] Extract from closing submissions on behalf of WAI 1301 dated 22 December 2009.
[63] That submission continued to the effect that delay in receipt of the financial aspects of the settlement could be recompensed by a payment of interest.
[64] This factor was not acknowledged in the Tribunal’s evaluation of the forms of
prejudice that were likely to follow, depending on its recommendations. Mr Koia
therefore argues that it has been overlooked and, in doing so, the Tribunal has failed to have regard to a relevant matter.
[65] Mr Koia characterised the impact of an interest payment on the extent of prejudice that would be suffered by those supporting the proposed settlement as a mandatory relevant consideration. I do not accept that that is the case. Classically, a mandatory relevant consideration is one that the decision-maker is explicitly required to take into account in reaching a decision. Usually, that requirement derives from statute. In contrast, the possible opportunity to lessen the prejudice arising from a delay in the East Coast settlement is one element among many in a weighing exercise where the decision-maker must assess both relevance and weight.
[66] Mr Tyson argued that the absence of explicit acknowledgement of the point in the Report does not establish that the Tribunal failed to have regard to the point. Further, that in the absence of any finding or comment that is inconsistent with the submission made on Mr Koia’s behalf, it is reasonable to infer that the Tribunal was indeed aware of the point, but did not treat it as sufficient to materially lessen the prejudice to third parties which is identified in the Report.
[67] There are many components to settlements such as the one proposed with the Rūnanga. The amount of money paid is but one important component. The transfer of property, the terms of apologies, and other elements that are addressed in overall settlements of this type gather a momentum which enables a settlement that is treated as appropriate at the time. Deferral of settlement for three or four years, as was suggested for the WAI 1301 claimants, could jeopardise an otherwise acceptable settlement for reasons beyond the delay in the receipt of the money component. In assessing prejudice in this broader context, it is understandable that no specific reference would be made to the prospect of lessening the extent of prejudice to Ngāti Porou by payment of interest, and I am not satisfied that the Report reveals a failure to have regard to the point as one that was relevant, but not taken into account.
Sixth claim: Failure to understand the WAI 1301 case
[68] Mr Koia contended that the issue before the Tribunal should have been whether a mandate to settle Ruawaipu claims as part of the Ngāti Porou settlement negotiation had been expressly sought from the Ruawaipu people and given on an informed basis. He criticised the misdirected focus that he inferred from the terms of a question posed for itself by the Tribunal in the Report:[25]
Should the Crown be able to include claims into settlement negotiations and legislation without the consent of named claimants?
[25] The Report at 43.
[69] Mr Koia treats that question in the context of Ruawaipu as focusing literally on whether the Crown ought first to have obtained the consent of Simon Koia as the individual claimant who lodged WAI 1301.
[70] With respect, Mr Koia’s argument is itself a misconstruction of the Tribunal’s reasoning. It is open to the Tribunal to accept claims lodged by individuals and it did so in WAI 1301. The extent of support that the individual claimant had from those who might identify as Ruawaipu was an issue that the Tribunal found it was unable to determine definitively, but it did agree with earlier assessments that support was limited. It certainly appeared that support did not extend to all of those who, on genealogical lines, might assert separate status as Ruawaipu.
[71] The outcome of the Report in part reflected the Tribunal’s view that support
for the WAI 1301 claim was limited (“to put it simply, numbers matter”[26]).
[26] The Report at 61.
[72] Accordingly, there has not been a misunderstanding of the argument by the Tribunal. It did not incorrectly transpose the individual claimant for those on whose behalf he purported to pursue the claim. Rather, the Tribunal was left with a doubt as to the extent of support for that claim.
[73] It is generally difficult for an applicant for judicial review challenging a decision to make out misunderstanding of the losing party’s argument as an error of
law and Mr Koia’s argument in this regard falls substantially short.
Seventh claim: Focusing on the wrong Crown actions
[74] Mr Koia argued that the Tribunal focused on the adequacy of the Crown’s interaction with Ruawaipu claimants, in reviewing the adequacy of the Rūnanga’s mandate when the subject of Mr Koia’s complaint was instead on the adequacy of the Crown’s scrutiny of the Rūnanga’s process in purporting to establish its mandate. In the context of a challenge in judicial review, it is impractical to attempt to maintain this distinction.
[75] For the Crown to review the adequacy of the steps undertaken by the Rūnanga, particularly in seeking a mandate from those asserting their separate identify as Ruawaipu, Crown representatives could not adequately form a view without taking into account the views of those people. In terms of undertaking the inquiry, it becomes a distinction without a difference to separate the Crown’s review of the adequacy of the steps taken by the Rūnanga, from the Crown’s assessment of the view of the adequacy of those steps adopted by those who would be affected by the asserted mandate, but who were opposed to it.
[76] Certainly, the Tribunal’s reasoning embraces the issue of the adequacy of the Crown’s review of the manner in which the Rūnanga purported to obtain its mandate. For instance, the Tribunal concluded:[27]
We have heard no evidence to convince us that the Crown has failed to follow its policies and processes in recognising the [Rūnanga’s] mandate. However, we have noted a number of apparent weaknesses in these processes.
[27] The Report at 54.
[77] In the result, the Tribunal found that the Crown’s process in reviewing the adequacy of the Rūnanga’s mandate was adequate. That is a finding against the essence of Mr Koia’s complaint and there is no reviewable error in the scope of matters the Tribunal had regard to in reaching that view.
[78] Accordingly, except for Mr Koia’s second claim, all challenges to the
Tribunal’s Report in WAI 2190 are dismissed.
WAI 2268
[79] On 6 May 2010, some 12 days before the Tribunal’s WAI 2190 Report was released, Mr Koia submitted a new claim to the Tribunal which he describes as the Ruawaipu urgent settlement claim. It alleged that the Ruawaipu people, being a group of Māori of which he was a member, were likely to be prejudicially affected through the proposed Crown act of settling all Ruawaipu historical Treaty claims without the “free prior informed consent of the Ruawaipu people”, and that such conduct on behalf of the Crown would be inconsistent with Treaty principles. Mr Koia also applied for urgency and signalled his view that it would be inappropriate for any of the Tribunal members who comprised the Tribunal panel for WAI 2190 to consider any aspects of this new claim.
[80] It appears that there is no record of any analysis undertaken on behalf of the Tribunal as to whether this new claim indeed raised new substantive matters, or whether it was merely a reformulation of the substance of complaints already pursued in existing claims before the Tribunal. It is understandable that the Tribunal might not apply the notion of res judicata to filter out additional claims advanced for the same interests as have pursued them previously. A jurisdiction seeking to consider historical grievances could justify being inclusive and not overly formalistic in the approach to its work.
[81] However, as some of Mr Koia’s criticisms of the Tribunal in respect of this new claim have necessarily to acknowledge, the grievance sought to be addressed in this new claim covered substantially the same ground as sought to be argued in WAI 2190.
[82] Mr Koia’s application for urgency that was submitted to the Tribunal on
6 May 2010 also requested that counsel be appointed to assist him as a self- represented claimant.
[83] The new claim was allocated the number WAI 2268 by the Tribunal. The Presiding Officer from WAI 2190, Judge Coxhead, was delegated by Chief Judge Isaac on 18 May 2010 to preside in respect of Mr Koia’s application for urgency in
WAI 2268. The Chief Judge directed that the issue of bias raised in respect of Judge
Coxhead’s participation ought to be considered by that Judge.
[84] Thereafter, Judge Coxhead declined to recuse himself and also declined to appoint counsel to assist Mr Koia as a lay litigant, whilst the prospect of his applying for legal aid remained open.
[85] Mr Koia raised a number of criticisms of the manner in which these aspects of managing WAI 2268 are claimed to have contravened his rights or interests.
First criticism: Chief Judge’s delegation to Judge Coxhead was wrong in law
[86] Mr Koia argued that he had an entitlement to be heard on the Chief Judge’s consideration as to who would be appointed as Presiding Officer for the new claim. This assertion misstates the nature of the task being undertaken by the Chief Judge. The allocation of judicial officers to particular cases or tasks within the jurisdiction is an administrative function, sometimes supervised by a judicial officer with responsibilities for doing so, and sometimes left to administrative staff managing the business of the Court or Tribunal.
[87] Any suggestion that litigants are entitled to be heard on their preference for judicial officers to sit on matters in which they are involved is anathema to the even-handed administration of justice.
[88] Here, the chairperson acted in appointing Judge Coxhead as Presiding Officer under cl 8(2) of Schedule 2 to the Act. That clause deems the Tribunal to be a commission of inquiry under the Commissions of Inquiry Act 1908, and authorises the chairperson of the Tribunal (among others) to issue directions, and to do any other act preliminary or incidental to the hearing of any matter by the Tribunal.
[89] In somewhat similar circumstances, the Court has previously found that an obligation to conduct an oral hearing relates only to the substantive stage of an
inquiry and not any associated procedural decisions that arise along the way.[28] By analogy, there can be no obligation on the Tribunal to grant a claimant a right to be heard on what is an administrative or procedural matter.
[28] Tangaere v Waitangi Tribunal HC Wellington CIV-2008-485-1177, 19 December 2008 at [19].
[90] Treating the nomination of a Presiding Officer in this way does not deprive an interested litigant of an opportunity to raise the prospect of a disqualifying conflict. That is to be done with the appointed Presiding Officer, as occurred in this case.
Second criticism: Absence of recognised opportunity to reply
[91] Judge Coxhead’s first step after being appointed the Presiding Officer for WAI 2268 was to direct that the Crown and other interested parties respond to Mr Koia’s application for urgency and Mr Koia’s proposal that Judge Coxhead ought to recuse himself. That direction did not acknowledge that any opportunity would be afforded to Mr Koia to reply to the matters that might be raised by the Crown and other interested parties.
[92] On 21 May 2010 (the day after Judge Coxhead’s initial direction), Mr Koia filed a further Memorandum in which, among other things, he requested leave to file a reply to the responses anticipated from the Crown and other interested parties.
[93] On 25 May 2010, Judge Coxhead directed that he would consider Mr Koia’s right of reply once the submissions from other parties had been received. Mr Koia complains that the lack of a commitment to a right of reply at that stage constituted a breach of natural justice.
[94] In all aspects of administrative law, context is everything.[29] One fundamental component of the obligations of natural justice is that a party must have an effective right to be heard. However, the law stops substantially short of providing, as an
inevitable right in all circumstances, for a claimant to have a right to be heard in
reply to arguments advanced in opposition to the claimant’s position. The nature and extent of a right of reply depends on the scale of the issues involved, the nature of the Court or Tribunal, the relative components of fact and law in the contested issues, the pace at which the proceeding is expected to be progressed and a range of other matters that might properly be taken into account by a judicial officer when regulating the procedure in a manner appropriate to the dispute.
[29] R v Secretary of State for the Home Department, ex parte Daly [2001] 2 AC 532 at [28] per
Lord Steyn, adopted by Wild J in Wolf v Minister of Immigration [2004] NZAR 414 at [33].
[95] Here, Judge Coxhead did not deny Mr Koia a right of reply. He merely deferred consideration of the form that any opportunity to reply might take. That was entirely appropriate to the circumstances, and no breach of natural justice arose in the way he handled the matter.
[96] In any event, Mr Koia did subsequently file reply submissions on the recusal issue and they were expressly considered by Judge Coxhead in making his decision against recusal.[30]
[30] Memorandum – Directions of the Presiding Officer in WAI 22168, 5 July 2010, at [3](i).
[97] There is therefore nothing in this second criticism.
Third criticism: Decision not to appoint counsel to assist Mr Koia was wrong in law
[98] Mr Koia criticised Judge Coxhead’s decision of 25 May 2010 where the Judge directed that he was unwilling to appoint legal counsel to assist Mr Koia as he had requested, whilst the prospect of legal aid was still available. Mr Koia argued that this constituted an error of law because Judge Coxhead failed to take into account a relevant matter when making this decision. The matter claimed to be relevant but overlooked was the difference in the manner in which Mr Koia’s claim would be presented, if, on the one hand, he was granted legal aid for counsel who then presented the case for him and, on the other, if he continued as a self- represented litigant, but subject to assistance from counsel.
[99] Under cl 7A(2) of Schedule 2 to the Act, the Tribunal has a discretionary power to appoint counsel to assist a claimant:
…if it is satisfied that the matter is of sufficient importance or complexity to warrant such an appointment or that it would be unjust to the claimant not to make such appointment.
Counsel appointed in this way are to be paid such fee as may be agreed between the Tribunal and the counsel appointed, out of money appropriated by Parliament for the purpose.
[100] What Mr Koia wanted was to exercise his rights as a self-represented litigant before the Tribunal, but to do so with the assistance of counsel that would be paid for at the Tribunal’s direction. From his perspective, Mr Koia’s claim could not be similarly argued to best advantage as it would under that arrangement, if he had to cede control of the presentation of his case to counsel whom he instructed on a legally aided basis.
[101] Judge Coxhead did not acknowledge this difference in his decision declining Mr Koia’s request that the Tribunal appoint counsel to assist him. However there is nothing in the terms of cl 7A(2) of the second schedule to the Act which suggests that tactical considerations of this sort are relevant to a decision by the Tribunal whether to provide assistance. The issue for the Tribunal is whether the importance or complexity of matters raised by a claim would render it unjust if a particular claimant is not assisted by counsel. It was inarguably open to the Tribunal to find in the present circumstances that it would not be unjust to Mr Koia in his pursuit of WAI 2268 if an appointment of counsel to assist him was not made under cl 7A(2) of the second schedule to the Act. Factors relevant to that evaluation could include the prospect that, if he required legal assistance and might qualify for legal aid, then that avenue ought to be exhausted before a case could be made for it being unjust not to appoint counsel to assist him.
[102] Accordingly, the approach adopted by Judge Coxhead was clearly one that was open to him. There was no reviewable error in the Tribunal’s decision not to appoint counsel to assist Mr Koia.
Criticisms 4 and 5: Misapplication of both stages of the test for recusal
[103] Mr Koia advanced separate criticisms of the way in which Judge Coxhead applied both the first and second stage tests for apparent bias, as set out in the Court of Appeal decision in Muir v Commissioner of Inland Revenue.[31]
[31] Muir v Commissioner of Inland Revenue [2007] NZCA 344, [2007] 3 NZLR 495 (CA).
[104] On the first stage of the test for apparent bias, Mr Koia cited from Muir:[32]
…First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the Judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air…
[32] At [62].
[105] Mr Koia sought to argue that if a decision were to be made upholding his claims in WAI 2268, then Judge Coxhead would be making findings that were contradictory to, or which undermined, the findings he had made as Presiding Officer in WAI 2190.
[106] Mr Koia did not reveal how he was able to make a request for recusal on this basis when filing his claim in WAI 2268, before the Report was available. The argument he made also reveals the substantial commonality between the issues raised by WAI 2190 and WAI 2268. One consequence of the principle of res judicata is that a court ought not to be required to determine the same issues in the same factual context more than once. For Mr Koia to predict that any finding in his favour in WAI 2268 would necessarily be contradictory to, or would undermine, findings against him in WAI 2190, signals that the two claims do require the same issues to be determined.
[107] Those two concerns are not directly germane to the correctness of the Judge’s application of the test for apparent bias. Mr Koia’s criticism is that the Judge wrongly treated the fact that he had previously made a ruling adverse to Mr Koia as Mr Koia’s basis for claiming apparent bias, whereas Mr Koia raised the prospect of
apparent bias by virtue of the fact that the second claim could only be decided in his
favour on reasoning that was contradictory to the Presiding Officer’s earlier
determination.
[108] This difference in the circumstances perceived as triggering a concern on the ground of apparent bias is not material to the Judge’s appropriate evaluation of the challenge to his presiding in WAI 2268. As I discussed with Mr Koia in the course of his argument, there are sound reasons of efficiency for the same judicial officers to be involved in successive hearings that may traverse some of the same ground. An obvious instance is the practice of Judges of this Court sitting on applications for leave to further appeal to the Court of Appeal from first instance appellate decisions made by them. Such hearings occur in circumstances where the Judge has made a finding adverse to the applicant for leave, and to be persuaded that leave ought to be granted, the Judge must recognise at least a realistic prospect that his or her decision on the issue may be wrong, thereby undermining or contradicting that previous decision. Adherence to oaths of office obliges judicial officers to determine such issues objectively and on their merits.
[109] Here, Judge Coxhead’s consideration of the recusal application did extend to an acknowledgement of the perception flowing from the “potential for embarrassment” and his reasoning reveals an adequate understanding of the circumstances relating to his previous involvement that might lead to the appearance of apparent bias.
[110] The first stage of the Muir test requires a factual inquiry that is to be “rigorous”, and that rigour should extend to a realistic appraisal of whether a fully informed reasonable observer would treat the judicial officer’s previous involvement as a realistic ground for giving rise to an appearance of bias. I am satisfied the Judge did that, and Mr Koia’s sensitivity to the consequences of Judge Coxhead’s previous involvement does not accord with the test, and should not, on objective consideration, be attributed to a reasonable observer.
[111] The second stage of the test in Muir was described by the Court of Appeal in the following terms:[33]
The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the instant case. (emphasis added)
[33] At [62].
[112] Mr Koia contrasts that level of risk (ie “might” lead a fair-minded lay observer…) with the different standard he contends was applied by Judge Coxhead when the Judge described the second stage of the test as requiring:[34]
…a determination of whether those circumstances would lead a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the instant case. (emphasis added)
[34] Memorandum – Directions of the Presiding Officer, 5 July 2010, at [4].
[113] Mr Koia’s argument was that Judge Coxhead’s substitution of “might” with “would” has wrongly elevated the test for the appearance of the absence of an impartial mind. Mr Koia argued that there can be no assurance that, if Judge Coxhead had applied the lower standard of circumstances that might lead a fair-minded lay observer to reasonably apprehend that he would not bring an impartial mind to the resolution of the case, that his decision might not have been different.
[114] In supporting the Judge’s approach, Mr Tyson submitted that the singular focus in Mr Koia’s argument on the Court of Appeal’s use of the word “might” in one part of [62] of its decision in Muir attributed a fixed standard that was not justified on a consideration of the judgment in Muir as a whole. Paragraph [62] itself continued in the following sentence that:
…This standard emphasises to the challenged Judge that a belief in her own
purity will not do; she must consider how others would view her conduct.
[115] Later in the judgment, the Court of Appeal asked itself “would” the reasonably informed observer conclude that the Judge might be unduly influenced. The Crown submitted that read as a whole, no material distinction should be drawn between the use of “might” and “would”.
[116] Recusal of a judicial officer on the basis of apparent bias is not a matter to be undertaken lightly. In emphasising the extent of difference between the standard of
“might” and “would”, Mr Koia suggested that the Court of Appeal deliberately intended a significantly lower standard, so that it was established once any realistic possibility arose that the notional fully informed reasonable observer could come to that view. I am not persuaded that that is the test the Court of Appeal intended. The test involves a theoretical construct so that attributing a frame of mind to a notional individual with certainty would be unrealistic. Equally, accepting that the apprehension of bias is made out where, say, one among a number of notional observers might reasonably apprehend that the Judge might not bring an impartial mind to bear, but on balance, a majority of such notional observers would not, is an inadequate basis for recognising apparent bias.
[117] Judge Coxhead’s citations from Muir included the following:[35]
[35] Muir at [101].
We know of no common law jurisdiction which accepts that a Judge’s adverse rulings are disqualifying per se. The problem is rather whether an aggrieved litigant should be permitted to seek recusal on the basis of rulings that are either so patently erroneous or so disproportionate as to suggest that something untoward must have motivated them…
Having reviewed the nature of his previous involvement, Judge Coxhead then observed:
…Mr Koia has not submitted that its findings [the Panel in WAI 2190] were so erroneous or disproportionate that something untoward must have motivated them.
[118] I am satisfied that the Judge’s analysis, including that reasoning, appropriately applies the test from Muir and Mr Koia cannot make out any misapplication of the standard that should have applied.
[119] Accordingly, all of Mr Koia’s challenges to the Tribunal’s directions and
orders in WAI 2268 fail.
Summary
[120] On Mr Koia’s second claim within his challenge to the Tribunal’s Report in
WAI 2190, he is entitled to a declaration that the recommendations on the
Ngāti Porou settlement made by the Tribunal at 65 and 66 of its Report were made without jurisdiction and are therefore ultra vires the Tribunal. In all other respects, Mr Koia’s claims fail.
Scope of appropriate relief
[121] I am satisfied that no relief beyond the declaration I have made is warranted. The ultra vires recommendations are in a sense gratuitous, and the Tribunal’s confined error in making them does not reflect any further error in the Tribunal’s reasoning, or in the balance of its Report. There could be no suggestion that if those recommendations were removed, that might lead to any material differences in the remainder of the Report. Accordingly, directing any form of reconsideration could not be justified.
[122] I have reached this conclusion irrespective of the statutory constraint on other forms of relief that was raised on behalf of the Crown. Mr Tyson submitted that s 6(6) of the Act suspends the jurisdiction of the Tribunal “in respect of any Bill that has been introduced into the House of Representatives unless the Bill has been referred to the Tribunal pursuant to s 8 of this Act”. Section 8 is not applicable here and the consequence (as foreshadowed at the time of the hearing) was that there would be no utility in directing reconsideration by the Tribunal when the introduction of the Bill effectively removes the jurisdiction of the Tribunal to consider all of the claims that are covered by the settlement reflected in the Bill.
[123] The terms of the relevant provision are:
6 Jurisdiction of Tribunal to consider claims
…
(6) Nothing in this section shall confer any jurisdiction on the Tribunal in respect of any Bill that has been introduced into the House of Representatives unless the Bill has been referred to the Tribunal pursuant to section 8 of this Act.
[124] Mr Koia contested that s 6(6) has the effect argued for on behalf of the
Crown. He referred to observations of Baragwanath J in Mair, which question
whether s 6(6) is to be read as the Crown contends. The remaining members of the Court of Appeal in Mair did not express a view on the matter. As I have decided on the limit of appropriate relief without regard to s 6(6) of the Act, it is also unnecessary for me to do so in the present circumstances.
Costs
[125] There will be no order as to costs.
Dobson J
Solicitors:
A K Koia, 8 Dennis Street, Kaiti, Gisborne 4010 ([email protected])
Crown Law, Wellington for first and second defendants ([email protected] and
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