IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV 2015-470-151 [2017] NZHC 36
BETWEEN
ROPATA (ROBERT) LEEF
(HAPU OF NGᾹTI TAKA) Plaintiff
AND
COLIN BIDOIS (HAPŪ OF PIRIRAKAU) AND ORS Defendants
Hearing:
26 May 2016 (at Hamilton)
(Last submissions on 12 July 2016)
Counsel:
S P Bryers for Mr Leef (Ngāti Taka) M J Sharp for Mr Bidois (Pirirakau)
No appearance by or on behalf of other defendants
Judgment:
25 January 2017
JUDGMENT OF HEATH J
This judgment was delivered by me on 27 January 2017 at 4.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Martelli McKegg, Auckland Holland Beckett, Tauranga Counsel:
S P Bryers, Auckland
LEEF v BIDOIS AND ORS [2017] NZHC 36 [25 January 2017]
CONTENTS
The Dispute [1] Procedural Background [7] The Issues [15] The Allocation Resolution [19] The Mana Whenua Agreement [22] The Arbitration Agreement [27] The Award [29] The Allocation Agreement [32] The Earlier Litigation [35] The Competing Contentions [41] Principles of Contractual Interpretation [44] Analysis
(a) Introductory comments [53]
(b) The adjudication process and adjustments [57] (c) What remedies are available? [76] Costs [81] Result [83]
The Dispute
[1] In August 2004, the Waitangi Tribunal (the Tribunal) published a report which addressed the confiscation (raupatu) and compulsory acquisition of land held by Māori in the western Bay of Plenty during the New Zealand Wars of the 1860s.1
The Report specifically considered raupatu of some 214,000 acres of land effected by an Order in Council promulgated on 18 May 18652 and the compulsory purchase of (what was called) the Te Puna – Katikati Blocks following an initial agreement reached in August 1864.3
[2] The Tribunal found that a number of Tauranga hapū had suffered significant prejudice as a result of what occurred, and that “substantial redress” was required.4
A number of suggestions were made on how the Crown might endeavour to
negotiate a settlement with those hapū adversely affected by the raupatu and
1 Waitangi Tribunal Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims (Wai 215, 2004). More generally, as to the nature of raupatu, see Richard Boast and Richard S Hill (eds), Raupatu: The Confiscation of Māori Land (Victoria University Press, Wellington,
2009).
2 Waitangi Tribunal Te Raupatu o Tauranga Moana, above n 1, at Chapter 6, 149–175.
3 Ibid, at Chapter 7, 177–201.
4 Ibid, at 406, para [13.4.1].
compulsory purchase.5 The Tribunal added that “a generous and expeditious remedy is required for Tauranga Māori for the prejudice suffered by them”.6
[3] For present purposes, the land in issue comprises approximately 143,000 acres. Raupatu accounted for 50,000 acres of the lost land, while approximately
93,000 acres were compulsorily acquired by the Crown. The iwi primarily affected
by raupatu and compulsory purchase is Ngāti Ranginui.
[4] Through a mandated entity,7 eight hapū associated with Ngāti Ranginui participated in the settlement discussions with the Crown that followed the Tribunal’s report. They were: Ngāti Taka; the hapū of Pirirakau; Ngāti Hangarau; Ngāi Te Ahi; the…
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.
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Leef v Bidois [2017] NZHC 36
Case
[2017] NZHC 36
Decision Date
CaseChat Overview and Summary
This case concerns a dispute between two hapū of Ngāti Ranginui, Ngāti Taka and Pirirakau, over the allocation of settlement proceeds following a settlement agreement with the Crown. The case arose out of a dispute over which hapū had mana whenua (traditional rights over land) over certain lands. The parties agreed to resolve the dispute through arbitration. The arbitrators found that Pirirakau had mana whenua over the land, and that Ngāti Taka was an integral part of Pirirakau. Pirirakau was allocated the settlement proceeds. Ngāti Taka sought to challenge the arbitration award and the allocation of settlement proceeds, claiming that the arbitration process did not have the authority to make a final allocation of the proceeds. The Court found that the arbitration award was binding on the parties, but that the arbitration process did not have the authority to make a final allocation of the settlement proceeds. The Court held that the Mana Whenua Agreement, which provided for a process to resolve disputes over mana whenua and allocation of settlement proceeds, remained in force and could be invoked to determine whether any adjustment to the allocation should be made. The Court made declarations to that effect and declined to make an order for specific performance. Costs were reserved.