Leef v Bidois - [2012] NZHC 2631

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-461 [2012] NZHC 2631

UNDER the Arbitration Act 1996

IN THE MATTER OF an Arbitration Award dated 23 March 2012

BETWEEN RAPATA (ROBERT) LEEF, STEPHANIE TERIA TAIAPA, NADINE HORINA PIRAKE, CAIN RAROA TAIAPA, DARREN WILLIAM LEEF, NEIL HIRAMA AND PANIA ANEISHA BROWN
Applicants

ANDCOLIN BIDOIS, JENNY ROLLESTON, TAARI NICHOLAS, PATRICK NICHOLAS, CHRIS (KIRITOHA) TANGITU, RAWIRI KUKA AND SHADRACH ROLLESTON
Respondents

Hearing: 11 October 2012

Appearances: S P Bryers for Applicants
M J Sharp for Respondents

Judgment: 11 October 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors:
Martelli McKegg (Warren D Bygrave) P O Box 5745 Auckland 1141 for Applicants
Email: wdb@martellimckegg.co.nz

Holland Beckett (Michael Sharp) Private Bag 12011 Tauranga 3143 for Respondents
Email: Michael.Sharp@hobec.co.nz

Copy for:
Stephen P Bryers, P O Box 5444 Auckland 1141, for Applicants
Email: spbryers@xtra.co.nz

LEEF & ORS V BIDOIS & ORS HC TAU CIV-2012-470-461 [11 October 2012]

[1] This case is about an arbitration award. The unsuccessful party, representative of Ngāti Taka, say that the award should be set aside. The successful party, representatives of Pirirākau, have applied to strike out the setting aside application.

[2] The award was given on 23 March 2012. The arbitrators were Mr Kuku Wawatai and Mr Heta (Ken) Hingston, a retired Māori Land Court Judge. As explained, the parties to the arbitration were representatives of Ngāti Taka and representatives of Pirirākau, both hapü of Ngāti Ranginui iwi.

[3] In their award, the arbitrators said that the matter they had to determine was which of the hapü had mana whenua in respect of an area of land from 1840 to 1865. The area of land comprises in general terms the Te Puna peninsula and inland from the Te Puna peninsula going back as far as the coastal side of the Kaimai Ranges. That is the land I will refer to in this decision.

[4] The arbitrators held that between 1840 and 1865 the mana whenua for the land was held by Pirirākau but that descendants of Maungapōhatu, who claimed to be Ngāti Taka, were an integral part of Pirirākau and were thus entitled to be involved as Pirirākau but not as a separate entity. The significance of that decision relates to the distribution of the proceeds of a settlement under the Treaty of Waitangi Act 1975 of a claim brought by Tauranga Moana. The effect of this finding, if it is applied to the distribution of redress given by the Crown, will be that Pirirākau will receive significantly more by way of allocation of compensation, than Ngāti Taka will.

[5] The grievances against the Crown go back to the Tauranga campaign in the New Zealand Land Wars. That campaign is known most famously for the Battle of Gate Pā (Pukehinahina) in which Māori were successful, but as a result of that campaign taken against the iwi in the Tauranga area, Tauranga Moana, the Crown confiscated large areas of Māori land, including much of the land of Ngāti Ranginui. Another…

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 [2012] NZHC 2631
Case: [2012] NZHC 2631
Decision Date: 11 October 2012

CaseChat Overview and Summary

This case concerns an arbitration award between representatives of Ngāti Taka and representatives of Pirirākau, both hapū of Ngāti Ranginui iwi, which determined which hapū held mana whenua over certain land from 1840 to 1865. Ngāti Taka applied to set aside the arbitration award, claiming that the arbitrators exceeded their jurisdiction, the arbitration process was unfair, and the award was contrary to public policy. Pirirākau applied to strike out the setting aside application. Associate Judge Bell considered the arguments and found that some of the grounds for setting aside the award were not arguable, but others, including possible breaches of natural justice in the appointment of arbitrators and further inquiries made by the arbitrators after the hearing, were arguable. The Judge set out further directions for the parties to amend their pleadings and proceed with the case. Costs were reserved.

Orders