Lant v Te Runanganui O Ngati Porou

[2017] NZHC 1915

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-000255 [2017] NZHC 1915

UNDER

The Senior Courts Act 2016

AND

The Marine and Coastal Area (Takutai
Moana) Act 2011

BETWEEN

MARISE MARCIA LANT ON BEHALF OF NGA HAPŪ O KOKORONUI KI TE TOKA A TAIAU TAKUTAI KAITIAKI TRUST

Applicant

AND

TE RUNANGANUI O NGĀTI POROU

Respondent

Hearing:	9 August 2017
Counsel:	B R Lyall for Applicant T B Johnson for Respondent D A Ward and A M Smith for Attorney-General
Judgment:	9 August 2017
Reasons:	11 August 2017

JUDGMENT OF COLLINS J

Introduction

[1]      On 9 August 2017, I heard an application for an interim injunction brought by Ms Lant on behalf of Nga Hapū o Kokoronui ki te Toka a Taiau Takutai Kaitiaki Trust (the Trust).  At the conclusion of the hearing I advised I was dismissing the application for an interim injunction.   This judgment explains the reasons for my

decision.

LANT v TE RUNANGANUI O NGĀTI POROU [2017] NZHC 1915 [9 August 2017]

[2]      The   application   sought   to   prevent   Te Runanganui   o   Ngāti   Porou (Te Runanganui)  from  taking  any  action  to  implement  a  deed  to  amend  the Nga Hapū o Ngāti Porou Foreshore and Seabed Deed of Agreement 2008 (the first deed) until applications by hapū represented by the Trust can be determined under the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act).

[3]      The application for an interim injunction was filed on 4 July 2017 in the

High Court in Gisborne.  When the application was referred to Mallon J on 26 July

2012 she directed that Te Runanganui be served.

[4]      Subsequently, Mr Lyall on behalf of the Trust sought an urgent hearing of the application for an interim injunction.  The application was brought to my attention on 9 August 2017.  I directed that the Crown be served immediately.  This resulted in Dr  Ward  and  Ms  Smith  appearing  for  the Attorney-General  at  the  hearing  on

9 August 2017.  Dr Ward advised that the Attorney-General sought leave to be joined as a respondent.  I granted that application.

[5]      From the outset I advised that in 1996/1997 I had acted as senior counsel for Te  Runanganui  in  relation  to  an  aspect  of  the  Māori  fishing  litigation  and  in particular, the dispute which went to the Privy Council, concerning the meaning of “iwi”.1   All parties agreed that it was appropriate that I should continue to hear the application.  There were two reasons why I did not consider it necessary to recuse myself:

(1)My role as counsel for Te Runanganui involved me acting on behalf of all hapū within the Ngāti Porou rohe, including the hapū that are represented by the Trust.

(2)The application for an  interim injunction needed to be heard and determined immediately and there was no guarantee another Judge

would be able to hear the application.

1      Treaty Tribes Coalition v Urban Maori Authorities [1997] 1 NZLR 513 (PC).

Background

[6]      In 2008, Te Runanganui and the Crown entered into the first deed relating to the settlement of issues concerning the foreshore and seabed in the Ngāti Porou rohe. That deed lay in abeyance whilst the Crown considered repealing the Foreshore and Seabed Act. That occurred when the MACA Act was passed in 2011.

[7]      Following  the  passing  of  the  MACA Act  Te  Runanganui  sought  to  re- negotiate with the Crown an amendment to the 2008 deed to take account of key changes in the law brought about by the MACA Act.  To achieve this Te Runanganui circulated a draft amendment deed (the amendment deed) for ratification amongst hapū within the Ngāti Porou rohe.  That process commenced in January 2017 and proceeded through to 22 July 2017.

[8]      Ms  Johnson,  for  Te  Runanganui,  advised  me  that  47  hapū  within  the Ngāti Porou rohe ratified the amendment deed.  The amendment deed was forwarded to the Crown on 7 August 2017 and has apparently been signed by ministers.

[9]      The amendment deed does not purport to bind hapū who have not ratified or not yet received the opportunity to ratify the amendment deed.  There are 10 hapū in this category.   Two have voted against adopting the amendment deed.   They will have  the  opportunity  to  pursue  their  own  claims  under  the  MACA Act.    The remaining eight hapū include some who are aligned with the Trust.  If they elect not to endorse the amendment deed they also will have the opportunity to pursue their own claims under the MACA Act.

[10]     The interests of hapū who do not support the amendment deed are preserved under the MACA Act because Te Runanganui, on behalf of all hapū within the Ngāti Porou rohe has filed a “holding claim” with the High Court under the MACA Act.

Basis of the application

[11]     The application was advanced on two grounds:

(1)First, it was alleged that the interests of those hapū represented by the Trust would be irrevocably adversely affected if the amendment deed was executed.  The essence of this aspect of the claim was that the hapū  represented  by  the  Trust  should  not  have  their  rights  and interests effectively determined before their claims under the MACA Act have been determined.

(2)Second, it was suggested that Te Runanganui did not have the legal status to execute any deed under the MACA Act.   It was suggested only individuals, hapū or iwi have the requisite status under the MACA Act.

Analysis

[12]     I dismissed the application because in my assessment there was no tenable basis upon which the Trust’s arguments could succeed and because the balance of convenience favoured dismissing the application.2

No arguable case

[13]   There were four reasons why I concluded that the Trust had failed to demonstrate that it had an arguable case.

[14]     The first was that the amendment deed does not purport to prevent hāpu who have not ratified the amendment deed from pursuing their own claims under the MACA Act.

[15]     Second, the amendment deed does not affect the rights and interests of any

hapū. Arguably, the rights or interests of hapū represented by the Trust could only be

affected if Parliament legislates to give effect to the amendment deed.

2      Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).

[16]     Third, well established principles of comity preclude the Court from granting an injunction that would attempt to prevent Parliament from giving effect to the amendment deed.

[17]     Fourth, the definition of “applicant group” under the MACA Act includes a “legal entity (whether corporate or unincorporate) or natural person appointed by one or  more  iwi,  hapū  or whānau  groups  to  be  the  representative  of  that  applicant group”.3  Te Runanganui clearly has legal status under the MACA Act.

Balance of convenience

[18]     Having learnt that the deed has been signed by Te Runanganui and forwarded to ministers, there was no basis upon which Te Runanganui could be injuncted to prevent it implementing the deed.  The balance of convenience therefore lay against granting the interim injunction sought by the Trust.

Costs

[19]     I have not made any ruling in relation to costs.  If the parties wish me to do so, then they should file memoranda setting out their respective positions within 10

days of the date of this judgment.

D B Collins J

Solicitors:

Lyall & Thornton, Auckland for Applicant
T B Johnson, Gisborne for Respondent

Crown Law Office, Wellington for Attorney-General

3      Marine and Coastal Area (Takutai Moana) Act 2011, s 9(1) “applicant group”.