Leef v Bidois
[2017] NZHC 36
•25 January 2017
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 Wairoa hapū (made up of Ngāti Kahu, Ngāti Rangi and Ngāti Pango); Ngāti Tamarawaho; Ngāti Ruahine; and Ngāi Te Wai.
[5] A settlement was achieved. In broad terms, it involved both the provision of land and the payment of money by the Crown to a settlement entity established by the iwi, the Nga Hapū o Ngati Ranginui Settlement Trust (the Trust). The terms of settlement were recorded in a deed dated 21 June 2012 (signed by the mandated
representatives of Ngati Ranginui, the Trust and the Crown)8 which was approved
following a “ratification poll” held by postal, Internet and ballot box means between
19 April and 26 May 2012. The result was certified by the appointed Returning
Officer on 31 May 2012.
[6] Allocation of the settlement proceeds among affected hapū was to be determined by them through separate arrangements. Apart from a dispute that arose between Ngāti Taka and Pirirakau, the basis on which the settlement proceeds are to be distributed among hapū has been agreed. Notwithstanding resolution of earlier
litigation9 between Ngāti Taka and Pirirakau, differences remain. In general terms,
the questions for my determination are whether a decision made by the Trust to make
an allocation in favour of Pirirakau to the exclusion of Ngāti Taka is justifiable as a
5 Ibid, at 406–407, para [13.4.1].
6 Ibid, at 409, para [13.4.3].
7 See para [5] below.
8 The relevant background to the settlement is set out in the deed. Parliament is yet to enact legislation to give effect to its terms.
9 See paras [35]–[40] below.
matter of law and, whether (whatever may be the legality of that allocation) there is any mechanism by which Ngāti Taka can pursue its claim to all or part of those proceeds.
Procedural Background
[7] The present proceeding is brought by Mr Leef, as the mandated representative of Ngāti Taka. It is defended by Mr Bidois, as mandated representative of Pirirakau. I shall refer to the parties as Ngāti Taka and Pirirakau respectively.
[8] The mandated representatives of the remaining affected hapū 10 and the Trust were served with the proceeding. The hapū of Ngāti Hangarau, Ngāi Te Ahi, Wairoa, Ngāi Tamarawaho and Ngāi Te Wai abide the decision of the Court, as does the Trust. Ngāti Ruahine has been served, but has taken no steps in this proceeding.
[9] Ngāti Taka’s claim came before me for determination in unusual circumstances. An explanation is required.
[10] The proceeding was set down for hearing before Whata J, over three days, commencing on 23 May 2016. On the second day of the trial, the last witness was called. It became apparent that he was known to Whata J. Despite the parties having been advised of the identity of the trial Judge earlier, they had not appreciated the existence of the relationship. Nor, from the limited papers made available to him, had the Judge. Whata J allowed that witness to give evidence on a provisional basis, pending a decision as to whether he should disqualify himself from determining the issues raised. After that evidence had been heard, only closing submissions remained to be made.
[11] After hearing submissions from counsel, Whata J decided to recuse himself. A telephone conference was held on 24 May 2016 for case management purposes. Because the parties had indicated there were no credibility issues arising out of the
evidence given by the material witnesses, each of whom had been cross-examined on
10 See para [3] above.
their affidavits, a proposal was put to counsel that another Judge hear closing submissions based on the record of proceedings before Whata J.
[12] The parties agreed to proceed in that way. In a Minute issued after the telephone conference, Whata J recorded:
[2] In terms of case management, I confirm the following matters discussed with counsel for the purposes of having this matter heard as urgently as possible, namely:
[a] Counsel agree that it would be appropriate for the Judge hearing this matter to determine it on the papers, that is, on the affidavits as filed, together with the notes of evidence. Counsel indicated that there are no challenges to the credibility of any of the witnesses so that it is unnecessary for the Judge to have viewed the giving of the evidence.
[b] It is envisaged that the hearing will simply involve closing submissions, together with a right of reply.
[c] It is anticipated that only one day will be required.
[13] A new hearing commenced before me on 26 May 2016. It was not a continuation of the one started before Whata J. That was treated as if it had been aborted. Counsel agreed that I should have regard to:
(a) Affidavits and documentary exhibits before Whata J;
(b)The notes of evidence taken before Whata J. There was no need to rehear evidence orally;
(c) The opening written submissions of counsel for the Ngāti Taka and
Pirirakau;
(d) The transcript of counsel’s oral openings, as provided to them by the
Court; and
(e) The written closings and oral addresses to be made on 26 May 2016. [14] On 26 May 2016, I gave leave to Mr Bryers, for Ngāti Taka, to file and serve
a second amended Statement of Claim by which an additional cause of action
seeking specific performance of a particular agreement was sought. Mr Sharp, for Pirirakau, did not oppose leave being granted. I waived the need for a further statement of defence to be filed.
The Issues
[15] Ngāti Taka’s primary challenge is to the Trust’s decision to allocate a percentage of the settlement proceeds to Pirirakau, to its exclusion. The Trust’s decision was based on findings made in an arbitration that was specifically convened to determine whether Pirirakau or Ngāti Taka had mana whenua over the subject land. Mr Bryers contends that the error in the Trust’s approach resulted from an eliding of the twin concepts of mana whenua and allocation. He contends each should have been treated discretely.
[16] Although the arbitrators subsequently decided that Pirirakau had mana whenua over the land, they also concluded that Ngāti Taka was “an integral part of Pirirakau” in the period between 1840 and 1865.11 As a result, members of each hapū can whakapapa to the paramount Chief, Te Ua Maungapohatu.12 Having made those findings, the arbitrators concluded that Ngāti Taka was “entitled to be involved as Pirirakau not as a separate entity”.13
[17] In contrast to that finding, Pirirakau and Ngāti Taka presently regard themselves as distinct hapū. As the extensive litigation suggests, they have evidenced little ability to work collaboratively and constructively to resolve the disputed issues.
[18] To determine the claim, there are five documents that assume particular importance. For identification purposes, they are:
11 See para [31] below.
12 See para [30] below.
13 See para [31] below.
(a) A resolution executed by mandated representatives of the hapū in which they expressed agreement with a proposed model allocation (the Allocation Resolution);14
(b) The Mana Whenua Process Agreement (the Mana Whenua
Agreement);15
(c) The arbitration agreement;16
(d) The arbitrators’ award (the award);17 and
(e) The “Quantum/Financial Redress Model Allocation Agreement” (the
Allocation Agreement).18
The Allocation Resolution
[19] The Allocation Resolution followed the mandate given by hapū of Ngāti Ranginui to negotiate redress for the breaches of the principles of the Treaty of Waitangi that the Tribunal had found in its 2004 Report. The mandate was given to Ngā Hapū o Ngāti Ranginui, also described as Te Roopu Whakamana o Ranginui in the deed that was executed on 3 August 2007. The deed was signed by (among others) representatives of Ngāti Taka and Pirirakau.
[20] On or about 17 March 2010, before the settlement agreement was concluded with the Crown on 21 June 2012, the mandated representatives of all hapū signed a resolution to confirm the basis on which settlement proceeds would be allocated among them. The motion put and agreed was moved by a representative of Pirirakau and seconded by a representative of Wairoa.
[21] The purpose of the Allocation Resolution was to identify the basis on which
hapū agreed to share in the proceeds of settlement, in the shadow of which the
14 See paras [19]–[21] below.
15 See paras [22]–[26] below.
16 See paras [27] and [28] below.
17 See paras [29]–[31] below.
18 See paras [32]–[34] below.
mandated negotiators of Ngāti Ranginui could treat with the Crown. The Allocation
Resolution provided:
MOTION
The Te Roopu Whakamana agree with the Quantum/Financial Redress
Model Allocation as follows:
·Raupatu – 50% of the Quantum/Financial Redress to be determined by the Mana Whenua Process
·Te Puna Katikati Purchase – 20% of the Quantum Financial Redress to be determined by the Mana Whenua Process.
· General Allocation – 30% of the Quantum/Financial Redress to be
divided equally between the eight hapū.
The Mana Whenua Agreement
[22] The Allocation Resolution contemplated execution of the Mana Whenua Agreement. The Mana Whenua Agreement was signed in April 2010 by all hapū of Ngāti Ranginui, including Ngāti Taka and Pirirakau. It was based on Schedule 2 of the Central North Island Forests Land Collective Settlement Act 2008. In Schedule 2, the means by which mana whenua is to be established is called a “Tikanga based resolution process”.19
[23] The Mana Whenua Agreement envisaged a four-step process to determine entitlement to shares in the settlement proceeds. They were:
(a) Stage 1: Identification: The hapū were to identify among themselves which had mana whenua over relevant parts of the land in issue, with up to two months being allowed for this part of the process to be completed.
(b)Stage 2: Negotiation: If agreement were not reached at Stage 1, the hapū were to enter into negotiations to resolve outstanding issues, with up to eight months being allowed for this part of the process to
be completed.
19 The statutory model was considered by Ellis J in Te Runanga o Ngāti Manawa v CNI Holdings Ltd [2016] NZHC 1183. Leave was granted after the hearing for counsel to make submissions on its relevance to the present case. See also paras [67] and [68] below.
(c) Stage 3: Adjudication: If agreement were still not reached at Stage 2, the hapū were to mediate or arrange for the dispute to be adjudicated by a third party. It was intended that the Trust appoint an adjudication panel of three members to determine the dispute, with up to 11 months being allowed for this part of the process to be completed.
(d)Stage 4: Allocation: The Trust was to complete a final allocation agreement by a date that was expected to be 1 July 2014.20 That allocation was to be “final and binding” on the hapū whose mandated negotiators signed the Mana Whenua Agreement.
[24] In the event of recourse to the adjudication process, the Mana Whenua Agreement envisaged binding determination of a dispute about mana whenua being made by a panel of three adjudicators who were required to be “fluent in Te Reo Māori, and … knowledgeable on matters of tikanga, including in particular how mana whenua is held and exercised by Hapū”. Further, the adjudicators were to be independent of the parties involved in the dispute; specifically, members of any hapū involved were excluded from appointment.
[25] Any dispute would have been determined against the background of the Allocation Resolution.21 Had the dispute been resolved by adjudication, the panel would have made a decision about mana whenua and then considered whether any adjustments to the intended allocation were required as between the disputants. A range of options would have been available to determine whether any adjustments were required. Clause 6.14 of the Mana Whenua Agreement provided:
6.14 … The Adjudication Panel shall have the power to:
6.14.1 Allocate the Disputed Resources to one Hapū; or
6.14.2 Allocate the Disputed Resources to more than one Hapū in joint or multiple ownership as tenants in common in a resource, either divided in equal shares or proportionally according to the respective interests of the Hapū;
20 The Allocation Agreement was signed in April 2012: see para [32] below.
21 See para [21] above.
6.14.3 Allocate the Disputed Resources to one Hapū, but acknowledge the relationship of the other Hapū with the land in a specified manner;
6.14.4 Implement any other solutions proposed by one or more of the parties, subject to any modifications determined by the Panel.
[26] The question of mana whenua as between Pirirakau and Ngāti Taka was not resolved by negotiation. Nor was the mediation process used. Even so, the disputants did not adopt the adjudicative process spelt out in the Mana Whenua Agreement. Rather, in 2011, they agreed to appoint two arbitrators to determine which hapū had mana whenua at the relevant time. They did not clothe the arbitrators with jurisdiction to make decisions of the type set out in cl 6.14 of the
Mana Whenua Agreement.22
The Arbitration Agreement
[27] Pirirakau and Ngāti Taka agreed that, between 1840 and 1865, Te Ua Maungapohatu, occupied the land. The question was whether he was Ngati Taka or Pirirakau. The answer to that question was thought to be sufficient to resolve the dispute about mana whenua.
[28] The parties appointed a retired Judge of the Māori Land Court, Mr H K Hingston, and Mr Kuku Wawatai as arbitrators. As to the issues for determination, the arbitration agreement provided:
The Following is an Agreement Between Pirirakau Hapū and Ngati Taka. In the matter of Mana whenua Status coinciding with:
Land waterways and resources from Wairoa river to the Aongatete river along the Aongatete river to the maunga Pukupenga to Te Mimiha Tuhanga onward to Waianuanu.
Both Hapū have come to an agreement in using a Mana Whenua Arbitration Process which portrays which hapū and its rangatira had Mana Whenua status from 6th February 1840 to 15th May 1865.
The following are the proposed terms on the selection and conduct of a
Mana Whenua Arbitration Process.
22 Clause 6.14 is set out at para [25] above.
1. Arbitrators: The litigators will agree on 2 arbitrators.
2. Roles and responsibilities of Arbitrators.
a. To listen, to question, to enquire, to consult at their direction
b. To make a decision that will be final and binding on both parties
c. To ensure the process is conducted in a Rangatira ki te Rangatira manner.
3. Engagement Process: To be determined by an agreement of the three parties ie Ngati Taka, Pirirakau Hapū and the Arbitrators
4. Timeframe: Concluded by 30th November 2011
5. Costs: To be shared by the two Hapū Ngati Taka and
Pirirakau Hapu or as directed by the arbitrators.
6. Venue: To be decided by agreement of all parties ie
Ngati Taka, Pirirakau Hapu and the Arbitrators.
7. Litigation conduct: Mandated Te Roopu Whakamana representatives from each of the two respective hapū will speak for their hapū ie there will be no professional legal representatives.
8. Apart from those giving evidence a total of five observers only from each of the 2 hapū are allowed to be present at the hearings.
9. Both parties agree that Lisa Gardiner Project Manager, Te Roopu Whakamana act as coordinator for these negotiations.
The Award
[29] An award was published on 23 March 2012. The arbitrators began their reasons for their award by considering the meaning of the concept of mana whenua. They did so in the context of the way in which Māori held land in the period between
1840 and 1865. They said:
Before embarking upon an analysis of the evidence placed before us we will deal with the concept of what mana whenua is.
Historically and traditionally ‘mana’ has always been held by man not land
and the use of the concept for land is a modern idea.
We have come to the view that what is intended is that we determine who had the customary rights to the land and exercised them, through the process of “ahi ka”.23 That is, who had lived there to the exclusion of other people? Who hunted, fished and grew food on the land? Who defended the land against others who aspired to occupy the land? Who is buried on the land?
We consider ‘mana whenua’ in the 19th century, before the Crown intervened could in no way be “ownership” that is now recognised. Guardianship or kaitiakitanga would have been a far more apt description for the relationship that Māori occupiers would have had with whenua. “Whatungarongaro te tangata, toitu te whenua. (Whilst people pass on, land remains.)” Ownership of land was derived from the common law of England and imposed at the time of settlement of New Zealand by Europeans.
Māori did not “own” land in pre European times but as mentioned above
exercised the various customary rights.
(footnote in original)
[30] In discussing the question of whakapapa, the arbitrators found that each hapū had linkages to Te Ua Maungapohatu.24 They did so on the basis of evidence of whakapapa adduced by both Ngāti Taka and Pirirakau. The arbitrators stated:
We record our view that the evidence before us shows that the descent line was also by their own admission Pirirakau at the relevant time, because the whakapapa lineage of the genesis of Pirirakau links have both parallel and cross linking with Maungapohatu. The name Pirirakau is nonetheless in quoted records but does not appear to be derived from any eponymous tipuna per se. In other words, it is not a tipuna, and in some accounts suggest [sic] the name as more describing the location of a hapu/iwi at a point in history. From Early Native Land Court Minutes evidence of Wanakore, son of Maungapohatu, the lineage is irrefutable. When we say this it is in no way to be interpreted as our saying this family is not also Ngati Taka. They know their own history. We note that in giving court evidence Pohoi Tahatika a grandson of Maungapohatu who fought alongside his parents at Gate Pa claimed to be of Ngati Taka and Pirirakau.
The evidence is clear that Maungapohatu and his descendants acknowledge both Pirirakau and Ngati Taka lineage.…
[31] The arbitrators considered specific evidence relating to the raupatu and compulsory sale of relevant parcels of land, as well as traditional factors such as wāhi tapu,25 pā,26 urupā,27 involvement by each hapū in the military campaign in
Waikato and questions of occupation. They concluded:
23 Symbolising the flame being alight and therefore occupation through sustained presence and living.
24 See para [27] above.
25 Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of
References to the Concepts and Institutions of Māori Customary Law (Victoria University Press,
We acknowledge that our enquiry was restricted to the finite period 1840–
1865 and therefore taking all of the evidence into account, we find that in the
relevant period the “mana whenua” in respect to the lands mentioned above was held by Pirirakau but the descendants of Maungapohatu who claim to be Ngati Taka are in our view an integral part of Pirirakau and are thus entitled to be involved as Pirirakau not as a separate entity.
The Allocation Agreement
[32] The Allocation Agreement is recorded in a document entitled “Nga Hapu o Ngati Ranginui Ratification Information Booklet”, dated April 2012. It was not signed on behalf of each hapū. Rather, it was a document contemplated by the Allocation Resolution,28 and prepared by the Trust.
[33] The Allocation Agreement records the “individual hapu settlement packages” and explains how they were achieved. Relevantly, for present purposes, the document stated:
Allocation of Quantum ($24m)
1. In March 2010 the mandated hapu representatives of Nga Hapu o
Ngati Ranginui decided that the quantum be split as follows:
a. 30%: For general treaty breaches;
b. 50%: For the Raupatu (50,000 acres);
c. 20%: For Te Puna Katikati purchase.
2.The general treaty breaches amount ($7.2m) was split equally amongst the 8 hapu ($900,000 for each hapū).
3. Raupatu and Te Puna Katikati was determined on the basis of Mana
Whenua between 6 February 1840 and May 1866.
…
Internal (inter hapu) Allocation Decisions
1. All hapu support the Deed of Settlement.
Wellington, 2013)) at 477, defines wāhi tapu as “[a] place subject to serious and long-term ritual restrictions on access or use… or an area of particular historical, ceremonial, or cultural importance.”
26 John C Moorfield, Te Aka Māori-English Dictionary (on-line) < the word pā as a form of fortification.
27 Ibid, defined as a burial ground or cemetery.
28 See para [21] above.
2.One hapu disagrees with the allocation decision made between it and another hapu. That decision was made by an independent arbiter in March 2012.
3. All other hapu allocations are agreed.
4.The allocation outlined in this presentation is based on the inter hapu agreements and the independent arbiters [sic] decision.
[34] The Allocation Agreement was published after the award had been given on
23 March 2012. It is clear that the Trust knew of the award at that time. That is expressly recorded in that part of the document that refers to internal hapū allocation. Thus, the Allocation Agreement falls to be interpreted in the context of the reference of the mana whenua issue to the arbitrators and the terms of their award.
The earlier litigation
[35] Initially, Ngāti Taka took the view that the award was not binding, primarily because the arbitration agreement did not provide for resolution of an issue capable of being arbitrated in New Zealand. The types of dispute that may be arbitrated are confined by s 10(1) of the Arbitration Act 1996. In a judgment given on 10 June
2013, Andrews J upheld that objection. As a result, she set aside the award.29
[36] On 18 May 2015, the Court of Appeal reversed Andrews J’s decision.30 It held that the question of which hapū had mana whenua over the land was capable of being arbitrated. Further, it concluded that there was no principle that an arbitration had to result in a final determination of all issues in dispute between two parties.31
Those findings meant that the arbitrators’ award on the mana whenua question was binding on Ngāti Taka and Pirirakau.
[37] In giving its reasons for allowing the appeal, the Court of Appeal made some observations about the scope of the arbitration that assume relevance for present
purposes. Delivering the judgment of the Court, Simon France J said:32
29 A separate claim that the award was unenforceable was made on the basis that the panel lacked impartiality. For present purposes, that issue did not assume significance in the judgment given by Andrews J or in those given on appeal. I do not need to discuss this issue.
30 Bidois v Leef [2015] NZCA 176, [2015] 3 NZLR 474.
31 Ibid, at paras [48]–[50].
32 Ibid, at paras [51] and [53]. That portion of the High Court judgment to which reference is made in para [53] is set out in Leef v Bidois [2013] NZHC 1349 at paras [67] and [72].
[51] … The dispute between Pirirakau and Ngāti Taka was seemingly the last outstanding inter-hapū dispute concerning who had mana whenua at the relevant time. Consequent on this, the iwi governing entity created a Ratification Information Booklet which contained conclusions on the mana whenua issue and the proposed allocations. As regards the land in dispute between these two hapū, the allocation reflected the arbitration outcome – namely, all the money attaching to this land was allocated to Pirirakau. This Ratification Booklet was adopted by a majority vote of iwi members. The allocations then found their way into a Settlement Trust Deed. This Deed, another internal iwi document, establishes a trust to receive the funds from the Crown and to distribute those funds in accordance with the terms of the Settlement Trust Deed.
…
[53] The judgment under appeal refers at one point to stage 3 of the Mana Whenua Agreement not having been completed by the parties, and at another to the parties still needing to follow the adjudication procedure under the Mana Whenua Agreement. Contrary to the proposition underlying these statements, in fact the adjudication process contemplated by the Mana Whenua Agreement is no longer available. Because all other hapū had also settled their disputes, the Mana Whenua Agreement was seen to be unnecessary and was not included as part of the settlement agreements. Recital D cited above makes it plain that as matters presently stand the issue is considered to be resolved. In this regard the judgment under appeal proceeds under a misunderstanding of the correct factual situation.
(Emphasis added; footnotes omitted)
[38] Recital D of the Settlement Deed, to which Simon France J referred, states:
D. It is the intention of the Initial Trustees to receive the settlement property and on transfer the settlement property to each of the hapū of Ngāti Ranginui in accordance with the [Allocation Agreement].
[39] Ngāti Taka applied to the Court of Appeal to recall its decision, focussing on the observations made in para [53] of its decision. Counsel for Ngāti Taka, challenged the view that “the Mana Whenua Agreement is no longer available”. In a judgment delivered on 15 July 2015, the Court of Appeal dismissed the recall application, saying:33
[3] Paragraph [53] of the judgment records that the Mana Whenua Agreement is no longer available. It is this observation the appellants seek to have recalled. They wish in subsequent litigation to argue the Agreement is still operative. A footnote which precedes the paragraph in issue notes that the judgment proceeds on the basis of the position as it presently stands. It was recognised that there may be further litigation about the processes that
33 Bidois v Leef [2015] NZCA 307, at para [3].
were followed, and the observation was made that the present judgment is not intended to indicate a view on the merits of any future litigation.
[40] Subsequently, Ngāti Taka applied for leave to appeal to the Supreme Court. In a judgment given on 24 August 2015, that application was dismissed.34
The Competing Contentions
[41] I attempt to summarise the competing submissions of counsel for Ngāti Taka and Pirirakau. I acknowledge that my summary is incomplete, and does not cover all aspects of the submissions. Nevertheless, I consider that those on which the result of this proceeding turns are set out sufficiently.
[42] Mr Bryers, for Ngāti Taka, contended that:
(a) The Mana Whenua Agreement remains binding on the parties and continues to govern the way in which disputes about allocation among those claiming mana whenua over particular land should be resolved.
(b)The Allocation Agreement adopts the Mana Whenua Agreement for the purposes of determining financial redress. The Allocation Agreement does not limit the circumstances in which the Mana Whenua Agreement was to apply. As a result, there is no basis to contend that the discretionary remedial provisions dealing with
allocation issues have, in some way, been disapplied.35
(c) To oust completely the adjudicative process set out in the Mana Whenua Agreement, it would have been necessary for the arbitration to encompass both mana whenua and allocation disputes.
[43] Mr Sharp, for Pirirakau, rejoined by submitting:
34 Leef v Bidois [2015] NZSC 128.
35 The relevant provisions are contained in cl 6.14 of the Mana Whenua Agreement, set out at para
[25] above.
(a) In reliance on the observations made in the two judgments of the Court of Appeal,36 the Mana Whenua Agreement is no longer applicable. This is consistent with the agreement reached among hapū as to distribution of settlement funds, as recorded in the Allocation Resolution of 17 March 2010.37
(b)If that proposition were wrong, the Mana Whenua Agreement does not take effect until after settlement legislation is enacted. That is because no reference is made to the Mana Whenua Agreement in the deed of settlement into which the mandated representatives of Ngati Ranginui, the Trust and the Crown entered on 21 June 2012.
(c) Mr Leef is estopped from arguing that the allocation issue remains outstanding. The decisions of the Court of Appeal give rise to an estoppel per rem judicatam, meaning that the defence of res judicata is available. In short, the point is that the outcome of the litigation about the award is determinative of this argument.
(d)There is no jurisdiction for the Court to make declaratory or other orders in respect of the contractual arrangements in issue, or the allocation decision of the Trust.
Principles of Contractual Interpretation
[44] Before analysing the competing positions, it is necessary to identify relevant contractual interpretation principles. In the present case, applicable principles are more nuanced than those that generally apply. That is because of the overlay of tikanga Māori that was intended to permeate decision-making in the adjudicative
phase of the processes set out in the Mana Whenua Agreement.
36 Bidois v Leef [2015] NZCA 176, [2015] 3 NZLR 474 (CA) at paras [51] and [53] and Bidois v
Leef [2015] NZCA 307 at para [3]. Those extracts are set out at paras [37] and [38] above.
37 Set out at para [21] above.
[45] First, there are orthodox principles of contractual interpretation developed by the Courts to deal with commercial and other types of contract.38 Their purpose is to find a meaning that the parties intended to attribute to the words they used. Among other things, the principles clarify the extent to which the Court is entitled to go beyond the words of a written agreement in determining their true meaning.
[46] Interpretation of a contract is based on an objective reading of its words, in light of their context.39 The Court’s task is to ascertain the meaning of a contract from the position of a reasonable person with the same background knowledge as the parties.40
[47] The nature of that task was explained by Lord Neuberger P, for the Supreme
Court of the United Kingdom, in Arnold v Britton:41
[15] When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 14. And it does so by focussing on the meaning of the relevant words … in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions.
(Emphasis added)
38 My summary of these principles is primarily drawn from my judgment in Harris v GTV Holdings Ltd [2016] NZHC 3123.
39 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [4] per
Blanchard J, at [23] per Tipping J, at [64] per McGrath J and at [151] per Gault J.
40 See my summary of the Privy Council’s judgment in Attorney-General of Belize v Belize
Telecom Ltd [2009] UKPC 10, [2009] 1 WLR 1988 at para [49] below.
41 Arnold v Britton [2015] UKSC 36, [2015] AC 1619. Lord Sumption and Lord Hughes concurred
in Lord Neuberger’s judgment.
[48] All interpretation issues are informed by the context in which an agreement is reached. In Firm PI 1 Ltd v Zurich Australian Insurance Ltd,42 Arnold J (for a majority of the Supreme Court) identified the type of contextual evidence that a Court was entitled to consider in undertaking its interpretation task. He said:
[60] Given the issues in the case, it is not necessary that we discuss the approach to contractual interpretation in any detail. It is sufficient to say that the proper approach is an objective one, the aim being to ascertain “the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”. This objective meaning is taken to be that which the parties intended. While there is no conceptual limit on what can be regarded as “background”, it has to be background that a reasonable person would regard as relevant. Accordingly, the context provided by the contract as a whole and any relevant background informs meaning.
[61] The requirement that the reasonable person have all the background knowledge known or reasonably available to the parties is a reflection of the fact that contractual language, like all language, must be interpreted within its overall context, broadly viewed. Contextual interpretation of contracts has a significant history in New Zealand, although for many years it was restricted to situations of ambiguity. More recently, however, it has been confirmed that a purposive or contextual interpretation is not dependent on there being an ambiguity in the contractual language.
…
[63] While context is a necessary element of the interpretive process and the focus is on interpreting the document rather than particular words, the text remains centrally important. If the language at issue, construed in the context of the contract as a whole, has an ordinary and natural meaning, that will be a powerful, albeit not conclusive, indicator of what the parties meant. But the wider context may point to some interpretation other than the most obvious one and may also assist in determining the meaning intended in cases of ambiguity or uncertainty.
(Emphasis added; footnotes omitted)
[49] In making those observations, Arnold J drew on a decision of the Privy Council in Attorney-General of Belize v Belize Telecom Ltd.43 In that case, the advice of the Privy Council was given by Lord Hoffmann. Before discussing the particular interpretation issues before the Board, his Lordship made a number of
observations about relevant principles. To the extent they are applicable to the
42 Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at paras
[60], [61] and [63] per McGrath, Glazebrook and Arnold JJ.
43 Attorney-General of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 1 WLR 1988.
present circumstances, I endeavour to summarise the essence of Lord Hoffmann’s
comments:
(a) The Court has no power to improve upon the instrument which it is called upon to construe. It cannot introduce terms to make a contract “fairer or more reasonable”. The Court’s function is “only to discover what the instrument means”.44
(b)That meaning is not necessarily (or always) what the parties to the document might have intended. Rather, it is “the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed”.45
[50] Second, there is the overlay of tikanga. It is now accepted that tikanga, applied as customary law before the Treaty of Waitangi was signed, should be regarded as a genuine body of law, entitled to respect as such. The extent to which it may be used as part of contemporary New Zealand law may differ, depending on the
nature of the issue involved.46 As Sir Edward Durie once observed, “There is as
much a ‘Māori law’ as there is a ‘Māori language’”.47
[51] Application of relevant tikanga in a case such as this is consistent with general principles of contractual interpretation. The need to consider tikanga arises directly out of context. The contractual documents in issue were prepared and executed for the purpose of enabling hapū to resolve disputes about mana whenua and, if necessary, adjustment of the fruits of settlement among them. It goes without
saying that mana whenua is a concept that is inherently Māori.48 That term, and the
44 Ibid, at para [16].
45 Ibid, at para [18].
46 See R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at paras [13]–[28] in the context of criminal law, and Heath “One Law for All” – Problems Applying Māori Custom Law in a Unitary State (2010 and 2011) 13 & 14 Yearbook of New Zealand Jurisprudence 194.
47 ET Durie, Will the Settlors Settle? Cultural Conciliation and Law (1996) 8 Otago LR 449 at 451.
More generally, albeit in a different context, see also Law Commission, Māori Custom and
Values in New Zealand Law (NZLC SP 9, 2001) at paras [76]–[79].
48 The concept is discussed in the award, the relevant part of which is set out at para [29] above.
More expansively, see the various ways in which mana whenua has been used, as recorded in
Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of
consequences of a finding that a particular hapū had mana whenua at a time proximate to 1840 when the Treaty was signed, is quintessentially one to be considered against the background of relevant tikanga.
[52] That approach is confirmed by the Mana Whenua Agreement itself. In particular:
(a) Clause 2.2 records that all hapū “are committed to the Hapū deciding upon the allocation of Cross Claimed Resources for themselves, on their own terms, answerable to one another”.
(b)Clause 2.3 records an acknowledgement of all hapū of Ngāti Ranginui to a mana whenua process that “enhances and promotes the mana and integrity of all Hapū” and “promotes whanaungatanga,49 manaakitanga50 and kotahitanga51 amongst the Hapū.”
(c) Clause 4.3, which applies at Stage 1 of the Mana Whenua Agreement,52 anticipated evidence of mana whenua being derived from sources linked to tikanga. In particular, oral kōrero, including whakapapa,53 waiata54 and tribal history could be taken into account, as could written sources, such as evidence and decisions in cases with
which the Native Land Court had dealt.
References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 178–204.
49 Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 524: Whanaungatanga is “[t]he state or circumstances of being a relative; that is, kinship and the rights, responsibilities, and expected modes of behaviour that accompany
the relationship.”
50 Ibid, at 205–209. Manaakitanga is “[t]he process of showing and receiving care, respect, kindness and hospitality” (at 205).
51 Ibid, at 145–147. Kotahitanga captures the notions of togetherness, unity or solidarity.
52 See para [23](a) above.
53 Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 504–515. In general terms, whakapapa embraces the connection among people by reference to a common ancestor.
54 John C Moorfield “Te Aka Māori-English Dictionary (on-line) a meaning, in this context, of “traditional chant”.
(d)Clause 5 set out the principles relevant to Stage 2 negotiation.55 That was defined as kanohi ki te kanohi56 among hapū. The hapū were to determine applicable tikanga. Clause 5.2.3 recorded that the expectation was of an “open principled trustworthy dialogue by rangatira with authority to commit their Hapū”: kōrero rangatira.57
(e) Clause 6 addressed processes contemplated if either mediation or adjudication were required to resolve differences that remained after Stages 1 and 2 of the process had been completed:
(i)Clause 6.7.1 provided that any mediator appointed was to “be fluent in Te Reo Māori and have knowledge of, and be skilled in, tikanga based dispute resolution”.
(ii)Clause 6.10.1 required members of an adjudication panel to “be fluent in Te Reo Māori, and be knowledgeable on matters of tikanga, including in particular how mana whenua is held and exercised by Hapū”. Questions of mana whenua and any
adjustments58 were to be determined in that context.
Analysis
(a) Introductory comments
[53] The settlement between the Crown and Ngāti Ranginui is intended to provide redress for those breaches of the Treaty of Waitangi identified in the Tribunal’s 2004
Report. The reason why a dispute resolution mechanism was inserted into the Mana Whenua Agreement was to enable the hapū within Ngāti Ranginui to determine, in accordance with their own tikanga, how the settlement proceeds were to be divided. The Crown has no role to play in that dispute resolution process. It is one that has
been left for hapū.
55 See para [23](b) above.
56 John C Moorfield “kanohi kit e kanohi” Te Aka Māori-English Dictionary (on-line) suggests that the concept of kanohi ki te kanohi involves face to face discussions among persons.
57 I understood counsel to use this phrase in the context of discussions among chiefly persons.
58 The range of powers conferred upon the adjudication panel are set out at para [25] above.
[54] The Mana Whenua Agreement was executed on 21 April 2010, after the Allocation Resolution, which had been passed on 17 March 2010. It must be interpreted in the context of the Allocation Resolution. Hapū resolved that redress for both raupatu and the compulsory purchase of the Te Puna–Katikati Blocks were to be determined “by the Mana Whenua Process”.59
[55] In my view, the main reason why the present problem has arisen is that the various documents use the term “allocation” in different ways. The word has been used to identify two distinct concepts:
(a) The first is the process of allocation agreed among hapū and set out in
both the Allocation Resolution and the Allocation Agreement.60
(b)The second is the need for an adjudication panel to determine the consequences of its findings in relation to mana whenua. The powers conferred on the panel by cl 6.14 of the Mana Whenua Agreement61 are intended to enable the adjudicators to respond to any unusual situation. Any adjustment must be tailored to meet the particular nature of the mana whenua decision.
To distinguish between the two concepts, I use the term “adjustment” to reflect the
cl 6.14 phase of the adjudication process.
[56] The difficulty that has arisen in the present case can be traced back to the decision of Ngāti Taka and Pirirakau to resolve the mana whenua question through a dispute resolution mechanism not contemplated by the Mana Whenua Agreement. I interpret the Mana Whenua Agreement as a solemn compact among hapū to resolve questions of mana whenua and adjustments in accordance with their tikanga. Although Ngāti Taka and Pirirakau entrusted the first of those questions to the arbitrators, no provision was made for any cl 6.14 adjustments to be considered as part of the arbitral process. That issue remains outstanding. As a result, the real
issue in this case is whether it is still possible for Ngāti Taka to invoke the
59 See para [21] above.
60 See paras [21] and [33] above.
61 Set out at para [25] above.
adjudication provisions of the Mana Whenua Agreement to determine whether it may receive any of the settlement proceeds to which, as a result of the award, Pirirakau is presumptively entitled.62
(b) The adjudication process and adjustments
[57] The view I have formed on the merits of Ngāti Taka’s claim means that I do not need to determine any causes of action that go beyond those in which Ngāti Taka contend that the adjudication process continues to be available to deal with questions of adjustment. That being so, I have limited my reasons to that issue.
[58] Contrary to Mr Sharp’s submissions, I consider that the Mana Whenua Agreement remains in force and binds the hapū, whose representatives gave assent to it. The only credible argument that it should be ignored is based on the proposition that when a private arbitral process was agreed Ngāti Taka and Pirirakau waived the benefits, rights and burdens conferred by the Mana Whenua Agreement. There is nothing express in the arbitration agreement to suggest that was the case. Nor is there anything in the award to support that view. The Allocation Agreement of April
2012 was prepared by the Trust to reflect the Allocation Resolution. Its preparation had been deferred until the award was published on 23 March 2012.63
[59] Further, I reject Mr Sharp’s submission that the Mana Whenua Agreement is somehow suspended until such time as settlement legislation is enacted. In my view, that argument fails because of the inter-hapū nature of the dispute. There is no need for the intended legislation to record this dispute. The legislation addresses settlement as between the Crown and Ngāti Ranginui, not questions of settlement as among hapū. In any event, it was expected that any mana whenua disputes would have been resolved by the time the legislation was enacted.
[60] The Mana Whenua Agreement is either in force and can be invoked at the present time, or it is not. To the extent that Recital D of the settlement deed suggests
62 The two questions that must be determined to resolve this issue are set out at para [64] below.
63 See paras [32]–[34] above.
that the allocation process has been completed, it is referring to the Allocation
Agreement, not to any questions of adjustment as between disputing hapū.64
[61] After the award was made, the Trust had no option but to allocate relevant proceeds to Pirirakau. That was the effect of the award. The problem that confronts me is borne of the failure to confer on the arbitrators the discretionary powers that could have been exercised by the adjudication panel as part of Stage 3 of the Mana Whenua Agreement.65 For reasons that follow, I consider this is precisely the type of case that those who conceived of the adjudication process intended that discretion to be available.
[62] As a result of the arbitrators’ award, Ngāti Taka is characterised as “an integral part of Pirirakau” for the purpose of the mana whenua decision.66 If the mana whenua dispute had been resolved by an adjudication panel, the adjudicators could have exercised a discretion under cl 6.14 of the Mana Whenua Agreement to ensure a just division of settlement proceeds was made. By that, I mean a decision that recognised that while Ngāti Taka and Pirirakau are presently regarded as separate hapū, the arbitrators found that one was an integral part of the other67 during the period between 1840 and 1865. On the face of it, at least to an untutored outsider, there is a credible argument that one part of what was regarded as Pirirakau at that time is being excluded from proceeds of settlement that are properly to be allocated to the hapū of Pirirakau.
[63] Clause 6.14 of the Mana Whenua Agreement gave a range of powers to an adjudication panel to solve a problem of this type. Specifically, it could “allocate” disputed resources to one of the eight hapū,68 “allocate” the disputed resources to more than one hapū in joint or multiple ownership having regard to the respective interests of each,69 or “allocate” the disputed resources to one hapū on the basis that
an interest of another was recognised in some way.70 At a more general level, an
64 Recital D is set out at para [38] above.
65 See cl 6.14 of the Mana Whenua Agreement, set out at para [25] above.
66 The relevant part of the award is set out at para [31] above.
67 See the extract from the award set out at para [31] above.
68 Clause 6.14.1, set out at para [25] above.
69 Clause 6.14.2, set out at para [25] above.
70 Clause 6.14.3, set out at para [25] above.
adjudication panel would have been empowered to implement, with or without modification, any other solution proposed by one or other of the hapū in dispute.71
[64] On that view of the case, there are two questions that require determination. I distil these from the competing contentions of the parties as formulated by their counsel.72 They are:
(a) Is it open to Ngāti Taka to invoke the adjudicative processes set out in the Mana Whenua Agreement to determine whether it is entitled, by way of an adjustment to the allocation, to share in the proceeds of settlement presumptively receivable by Pirirakau, as a result of the award?
(b)Is Ngāti Taka precluded by the decisions of the Court of Appeal from contending that it is entitled to share in the allocation made in favour of Pirirakau?73
[65] The Mana Whenua Agreement is replete with references to tikanga.74 It is clear that the hapū intended any disputes to be resolved by panel members who were fluent in Te Reo Maori, knowledgeable on matters of tikanga, independent of the dispute and not members of any hapū involved in the dispute.75 Those requirements reflect the need to determine questions of both mana whenua and adjustments in light of a collective approach to “traditional communal ownership” of land.76 In interpreting the Mana Whenua Agreement, I consider the emphasis on tikanga should
be given significant weight.77
71 Clause 6.14.4, set out at para [25] above.
72 See paras [42] and [43] above.
73 The relevant decisions of the Court of Appeal are discussed at paras [36]–[38] above.
74 See the explanations of various aspects of tikanga set out in the footnotes to para [52] above.
75 Clause 6.10 of the Mana Whenua Agreement. See para [52](e)(ii) above.
76 See Naera v Fenwick – Whakapoungakau 24 (2010) Waiariki MB 279 (MLC) at para [155].
That observation, made by Judge Layne Harvey in the Maori Land Court, was adopted by the Supreme Court on an appeal to it: see Fenwick v Naera [2015] NZSC 68; [2016] 1 NZLR 354 at para [177] (McGrath, Glazebrook, O’Regan and Blanchard JJ).
77 See my approach to contractual interpretation, set out at paras [44]–[52] above; in particular references to tikanga at paras [50]–[52] above.
[66] At the time the Mana Whenua Agreement was signed the parties must have intended that its processes would be used to determine questions of mana whenua and any adjustments. The fact that the essence of the adjudicative process was borrowed from Schedule 2 of the Central North Island Forests Land Collective Settlement Act 2008 supports that view. Also, the parties must have viewed the adjudicative process as dealing with two discrete aspects of any dispute in respect of which it applied; mana whenua and adjustments respectively.
[67] While there are differences in the manner in which a process set out in statute might be applied, in contrast to one adopted in a contract, I have found some comments made by Ellis J in respect of Schedule 2 to the 2008 Act helpful. In Te Runanga o Ngati Manawa v CNI Iwi Holdings Ltd,78 one of the issues that the Judge had to consider was whether the adjudicative process fell within the definition of an “arbitration agreement” for the purposes of the Arbitration Act 1996. In that case, an adjudication panel had determined questions of mana whenua, but not allocation. Ellis J formed the view that, even if the decisions were viewed through “an
arbitration lens” the panel’s determination “could only be regarded as an interim or partial award” because questions of “allocation” remained at large. She did not regard the panel as functus officio because it had not completed the whole of its task.79
[68] An obvious distinction between the Ngati Manawa case and the present is that, in the former, the mana whenua decision was given by an adjudication panel, whereas, in the present case, it was not. Would, in those circumstances, a reasonable person in the position of one of the hapū that executed the Mana Whenua Agreement, with knowledge of all relevant tikanga, have intended that the adjustment issue could no longer be determined by an adjudication panel?
[69] In my view, the answer to that question lies in the emphasis on Māori custom to resolve differences among disputing hapū. The fundamental concepts used in the adjudication provisions of the Mana Whenua Agreement are those based on
whanaungatanga and whakapapa. In English terms, these equate to notions of
78 Te Runanga o Ngati Manawa v CNI Iwi Holdings Ltd [2016] NZHC 1183.
79 Ibid, at para [71].
kinship and togetherness.80 The commitment of hapū to resolving all types of differences to which the Mana Whenua Agreement refers in accordance with tikanga81 leads me to the view that the parties intended all such disputes to be resolved before the settlement between Ngāti Ranginui and the Crown was finalised. In the absence of some compelling factor to the contrary, I conclude that the Mana Whenua Agreement permits the question of adjustment to be resolved by an adjudication panel now, even though the arbitrators’ decision as to mana whenua remains binding on both Ngāti Taka and Pirirakau.
[70] That approach to the interpretation of the Mana Whenua Agreement is consistent with the focus of the 3 August 2007 deed of mandate in favour of Nga Hapū o Ngāti Ranginui (Te Roopu Whakamana o Ranginui), in which the fundamental relationship principle is expressed in cl 4.1 as being that “each Hapū of Ranginui has the opportunity to facilitate their claims as per whakapapa and
whanaungatanga”.82
[71] I am satisfied that there are no compelling reasons to the contrary. In those circumstances, I hold that the adjudicative process set out in cl 6.10–6.15 of the Mana Whenua Agreement continues to be available to resolve the adjustment dispute between Ngāti Taka and Pirirakau. Such an interpretation does not affect the interests of any other hapū. Any question of adjustment is between Ngāti Taka and Pirirakau alone.
[72] The next question is whether the availability of the adjudicative process is negated as a result of the earlier decisions of the Court of Appeal. In my view, it is not.
[73] There is no doubt that the principle of res judicata applies in respect of arbitral awards. The public policy goal of preventing re-litigation of disputes is just
as relevant to arbitral decisions as to those that are curial in nature.83
80 See the explanations of the various values mentioned in the Mana Whenua Agreement, as set out in footnotes to para [52] above. See also, para [70] below.
81 See cl 2.2 of the Mana Whenua Agreement, described at para [52](a) above.
82 See also para [19] above. See also cl 2.3 of the Mana Whenua Agreement, described in para
[52](b) above.
83 David AR Williams QC and Amokura Kawharu, Williams and Kawharu on Arbitration
[74] The essence of a “plea of estoppel per rem judicatam [is] that the earlier judicial decision was, or involved a determination of, the same question as that sought to be controverted in the litigation in which the estoppel is raised”.84 The decision reached in the earlier proceeding as a result of the Court of Appeal’s first judgment was that the finding of mana whenua in favour of Pirirakau was binding on Ngāti Taka. The question whether any adjustment should be made in respect of the proceeds of settlement that were presumptively receivable by Pirirakau was not submitted to the arbitrators. Nor was it determined.
[75] Although there are some comments in the Court of Appeal’s substantive and recall decisions about this question,85 I do not consider that they resolve that question in favour of Pirirakau. At best, the language used is equivocal. The word “allocation” seems to have been used in two different contexts.86 More importantly, the observations are obiter in nature. That being so, the earlier decisions of the Court of Appeal do not prevent Ngāti Taka from taking its adjustment claim to an adjudication panel.
(c) What remedies are available?
[76] Mr Bryers submits that declarations should be made to the effect that the award was not a binding “allocation” decision for the purposes of the Mana Whenua Agreement and that the Allocation Agreement is invalid. An order for specific performance is sought requiring Pirirakau to submit to adjudication under cl 6 of the Mana Whenua Agreement to enable the disputed question of “allocation” to be resolved.
[77] I am prepared to make a declaration that the award made a binding decision on mana whenua. I accept Mr Bryers’ submission that the award did not amount to a binding decision on (what I have called) adjustments. I am prepared to make a
declaration that the arbitrators did not make a binding decision on whether any
(LexisNexis Wellington, 2011) at para 14.11.
84 Laws of New Zealand, Estoppel, at para [17].
85 Bidois v Leef [2015] NZCA 176, [2015] 3 NZLR 474, at paras [51] and [53] and Bidois v Leef
[2015] NZCA 307 at para [3], set out at paras [37] and [38] above respectively.
86 See para [55] above.
adjustments were required of the type to which cl 6.14 of the Mana Whenua
Agreement refers.87
[78] While Mr Sharp submitted that declaratory relief was unavailable (or ought not to be granted), I am satisfied that there is jurisdiction to make an order and that it is appropriate to do so. I rely on the observations of Elias CJ (with whom other members of the Supreme Court agreed on this point) in Mandic v Cornwall Park Trust Board.88 In Mandic, in the context of a case in which a declaration was sought as to the meaning of a perpetual lease, Elias CJ held that a declaratory judgment could be given “by way of anticipation with respect to any act not yet done or any event which has not yet happened”.89 She added that access to the jurisdiction did
not depend on an existing dispute or lis.90
[79] In light of that decision, I am satisfied that I may make a declaration to the effect sought.91 I am also prepared to make a declaration that Ngāti Taka is entitled to invoke the adjudication process in order to resolve the adjustment dispute. While a declaration need not be made to this effect, it remains open to the parties to agree to have the issue resolved by private arbitration if they wish.
[80] I am not prepared to make an order for specific performance. A declaration of entitlement to invoke the adjudication process is sufficient to deal with the issue. Pirirakau is bound by that declaration, as are other parties. The fact that other parties are bound means that the Trust must carry out functions cast upon it by the Mana Whenua Agreement to facilitate resolution of the outstanding issues. Through the adjudication process, the panel will be able to determine which of its powers in
respect of relief should be exercised.92
87 See para [25] above.
88 Mandic v Cornwall Park Trust Board [2011] NZSC 135, [2012] 2 NZLR 194 at paras [5], [8]
and [9] per Elias CJ. See also para [82] per Blanchard, Tipping, McGrath and William Young JJ. This approach was followed in Earthquake Commission v Insurance Council of New Zealand Inc [2014] NZHC 3138, [2015] 2 NZLR 381 at paras [130]–[133].
89 Ibid, at para [8].
90 Ibid, at para [9].
91 See para [77] above.
92 Those powers are set out in cl 6.14 of the Mana Whenua Agreement, set out at para [25] above.
Costs
[81] I reserve questions of costs. Presently, given the nature of the dispute, the way in which the issue arose and the need for the Court to provide guidance as to the path that the parties need to take to resolve outstanding issues, I am inclined to let costs lie where they fall. Such an approach would be consistent with the collaborative approach expected by the Mana Whenua Agreement.
[82] Having expressed that tentative view, I acknowledge that counsel have not been heard on the question of costs. I ask that they take instructions. I direct that a joint memorandum be filed on or before 17 February 2017, in which they shall advise whether costs have been agreed. If not, the Registrar shall arrange a telephone conference before me at the first available date thereafter, so that I may make further directions to enable questions of costs to be determined.
Result
[83] For those reasons, I make the following orders:
(a) I declare that the award resolves finally and in a binding way disputes
about which hapū held mana whenua over the relevant lands.
(b)I declare that the award does not resolve finally and in a binding way the question whether the proceeds of settlement presumptively receivable by Pirirakau should be held by Pirirakau alone or be the subject of some adjustment as between Pirirakau and Ngāti Taka.
(c) I declare that the Mana Whenua Agreement remains in force and the parties are bound by cl 6.5 to resolve remaining disputes using the process set out in cls 6.10–6.15. That process may be invoked by Ngāti Taka to deal solely with the question whether any adjustment should be made, of the type to which cl 6.14 refers.
[84] I leave the precise terms of my proposed declarations to be finalised after counsel have had the opportunity to consider this judgment. Counsel shall confer
and finalise the terms of an order to be sealed to reflect the declarations I have made. If agreement cannot be reached, I shall hear further from counsel at a telephone conference to be convened at their request. The Registrar shall not seal any order pending receipt of a draft approved by both counsel, or further order of the Court.
[85] Costs are reserved.93
[86] I thank counsel for their assistance. I apologise to the parties for the delay in delivering this judgment. While there are good reasons for the delay, I am conscious
that all litigants see their own cases as deserving of priority by the Court.
P R Heath J
Delivered at 4.00pm on 25 January 2017
93 See paras [81] and [82] above.
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