Leef v Bidois - [2015] NZSC 128

IN THE SUPREME COURT OF NEW ZEALAND

SC 62/2015
[2015] NZSC 128

BETWEEN	RAPATA (ROBERT) LEEF, STEPHANIE TERIA TAIAPA, NADINE HORINA PIRAKE, CAINE RAROA TAIAPA, DARREN WILLIAM LEEF, NEIL HIRAMA AND PANIA ANEISHA BROWN Applicants
AND	COLIN BIDOIS, JENNY ROLLESTON, TAARI NICHOLAS, PATRICK NICHOLAS, CHRISTOPHER (KIRITOHA) TANGITU, RAWIRI KUKA AND SHADRACH ROLLESTON Respondents

Court:	Glazebrook, Arnold and O'Regan JJ
Counsel:	S P Bryers for the Applicants F M R Cooke QC and M J Sharp for the Respondents
Judgment:	24 August 2015

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
BThe applicants must pay costs of $2,500 to the respondents.

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REASONS

Introduction

The proposed appeal concerns the arbitration of a dispute between two hapu of the Bay of Plenty based iwi Ngati Ranginui (Ngati Taka[1] and Pirirakau[2]) over which of them had mana whenua over certain tracts of land during the years 1840 to 1865. This issue was important in that 70 per cent of an anticipated Treaty of Waitangi settlement for Ngati Ranginui had been allocated to proportionate distribution based on the share of land lost.[3] The remaining 30 per cent was to be divided between hapu, Ngati Taka being recognised as a separate hapu within Ngati Ranginui for these purposes.
[1]The applicants are the representatives of Ngati Taka.
[2]The respondents are the representatives of Pirirakau.
[3]Determined by who had mana whenua over the land from 1840 to 1865.
It is largely common ground that the paramount Chief at the time, Te Ua Maungapohatu, had mana whenua over the land at issue. The dispute between Pirirakau and Ngati Taka was whether he was Ngati Taka or Pirirakau, the latter denying Ngati Taka had separate hapu status.
There was to have been a dispute resolution process (the Mana Whenua Agreement) in the Treaty settlement documents, modelled on sch 2 of the Central North Island Forests Land Collective Settlement Act 2008. The last of the three stages in that “tikanga based resolution process” would have been an arbitration by three independent panel members. This process was to occur after formal settlement with the Crown.
Pirirakau and Ngati Taka wished to settle the issue before settlement and it was suggested that they could agree on their own process, which they duly did.[4] Each party nominated an arbitrator, Pirirakau nominating Mr Heta (Ken) Hingston, a retired Maori Land Court Judge.[5] The hearing was over two days, on 23 and 24 January 2014.
[4]There were other cross-claim disputes in addition to that existing between Pirirakau and Ngati Taka.
[5]Ngati Taka nominated Mr Kuku Wawatai who was the head of Maori Studies at the Bay of Plenty Polytechnic.
Mr Hingston’s wife has whakapapa to Pirirakau. This was disclosed prior to the hearing and at the hearing. No objection was taken (unless a comment on the second day of the hearing can be taken as such).[6]
[6]The Court of Appeal did not accept that it could: see at [26] and [61] of Bidois v Leef [2015] NZCA 176 (Miller, Cooper…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leef v Bidois

Details

AGLC: Leef v Bidois [2015] NZSC 128
Case: [2015] NZSC 128
Decision Date: 24 August 2015

CaseChat Overview and Summary

The Supreme Court considered an application for leave to appeal against the Court of Appeal's decision in Leef v Bidois. The applicants, representing Ngati Taka, sought to challenge the Court of Appeal's findings that there was an arbitration agreement and that the right to an independent and impartial tribunal could be waived. The respondents, representing Pirirakau, argued that the proposed appeal would not affect the distribution of settlement proceeds as the challenge to the arbitration was filed after the Settlement Trust Deed was signed. The applicants also sought to introduce new evidence regarding the relationship between Mr Hingston's wife and Mr Bidois, which was opposed by the respondents. The Supreme Court found that the issue of whether there can be waiver of the right to an independent and impartial tribunal is one of public or general importance. However, even if there can be no waiver, the fact that no objection was taken at the time must be relevant to the exercise of the discretion whether or not to set aside the award. Additionally, the issue of the documents is a factual one of significance only to the parties. The application for leave to appeal was dismissed, and the applicants were ordered to pay costs of $2,500 to the respondents.

The case involved a dispute between two hapu of the Bay of Plenty based iwi Ngati Ranginui (Ngati Taka and Pirirakau) over which of them had mana whenua over certain tracts of land during the years 1840 to 1865. The issue was important in that 70 per cent of an anticipated Treaty of Waitangi settlement for Ngati Ranginui had been allocated to proportionate distribution based on the share of land lost. The remaining 30 per cent was to be divided between hapu, Ngati Taka being recognised as a separate hapu within Ngati Ranginui for these purposes. The applicants sought to challenge the Court of Appeal's decision that there was an arbitration agreement and that the right to an independent and impartial tribunal could be waived. The Court found that the issue of whether there can be waiver of the right to an independent and impartial tribunal is one of public or general importance. However, even if there can be no waiver, the fact that no objection was taken at the time must be relevant to the exercise of the discretion whether or not to set aside the award. The application for leave to appeal was dismissed, and the applicants were ordered to pay costs of $2,500 to the respondents.

Orders