Maniapoto v Maniapoto Māori Trust Board
[2022] NZHC 455
•15 March 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2021-419-254
[2022] NZHC 455
UNDER Section 13 of the Senior Courts Act 2016 and Part 18 of the High Court Rules 2016 IN THE MATTER
of breach of fiduciary relationship or obligation and estoppel
BETWEEN
HAROLD MANIAPOTO
Plaintiff
AND
MANIAPOTO MĀORI TRUST BOARD
Defendant
Hearing: 24 February 2022 Appearances:
C Tennet and D Maniapoto for the Plaintiff N Milner for the Defendant
G Melvin and I Wilson for the Attorney-General
Judgment:
15 March 2022
JUDGMENT OF GAULT J
This judgment was delivered by me on 15 March 2022 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr C Tennet, Barrister, Lower Hutt
Ms D Maniapoto (plaintiff’s instructing solicitor), Kihikihi Mr M Mahiuka and Mr N Milner, Kahui Legal, Wellington Copy to:
Mr G Melvin, Ms L Theron and Ms I Wilson, Crown Law, Wellington
MANIAPOTO v MANIAPOTO MĀORI TRUST BOARD [2022] NZHC 455 [15 March 2022]
[1] Mr Maniapoto applies for an interim injunction and freezing orders against the Maniapoto Māori Trust Board (MMTB)1 in relation to settlement of the historic claims of Maniapoto against the Crown.
[2] The application for interim injunction initially filed on 26 October 2021 sought to restrain MMTB from signing a deed of settlement with the Crown. However, following advice that the deed had already been signed before the application was served, Mr Maniapoto filed an amended application dated 26 November 2021.
[3] In the meantime, Mr Maniapoto also filed a without notice interlocutory application for interim freezing injunction on 19 November 2021. Lang J did not consider it appropriate to deal with that application on a without notice basis and directed that it be served.2
Factual background
[4] Mr Maniapoto, of Ngāti Te Uaki, Ngāti Te Maawe (ki Mangatoatoa) and Ngāti Paretekawa ki Mangatoatoa, of the Ngāti Te Kanawa section of Maniapoto, Mangatoatoa Pā, Te Awamutu, has filed affidavits in support of the applications. In summary, his evidence is as follows.
[5] He is the lead claimant in Wai 800, lodged with the Waitangi Tribunal on behalf of all Maniapoto descendant whānau and hapū, and the WAI 2013, 2915, 2313, 2314, and other claims lodged on behalf of Ngāti Paretekawa, Ngāti Rangiwaero-Ngutu, Ngāti Te Uaki, Ngāti Te Maawe, and associated hapū, all within the Maniapoto ki Te Raki tribal district.
[6] He is the chairman of the roopu Maniapoto ki Te Raki (MKTR). MKTR is the Treaty claims/settlement body established for the purpose of co-ordination and organisation of hapū and individual claims in the Waitangi Tribunal’s Te Rohe Pōtae Inquiry, concerning their lands and interests in the Northern district of Ngāti Maniapoto from the Waipa River in the south to Nukuhau in the north, and Pirongia
1 MMTB was established by the Maniapoto Maori Trust Board Act 1988.
2 Minute dated 22 November 2021.
in the west to Rangitoto-Wharepuhunga in the east. Mr Maniapoto was elected chairperson of MKTR in 2007.
[7] Mr Maniapoto is also one of the MKTR mandated representatives, and chairman of the Te Kawau Mārō (TKM) Mandate Body that was established to seek a mandate and negotiate a settlement for Maniapoto, Rereahu, Te Ihingarangi and other iwi and hapū including Ngāti Apakura interests in the Rohe Pōtae. TKM is the grouping that the communities identified as being authorised to negotiate the claims against the Crown.
[8] In accordance with their tikanga, MKTR rangatira have authority and the mandate to represent the claimant groups and hapū within the MKTR region.
[9] Mr Maniapoto’s engagement and representation in this claim stems from his long-standing service as an uri of Maniapoto, and through the recognition of MKTR as a representative body of the hapū and claimant groups within its region. He says it was also illustrated in the Te Rohe Pōtae Inquiry, in particular through the progression of the WAI 800 claim that was filed for the benefit of all of Ngāti Maniapoto.
[10] In 2013, Maniapoto hapū and claimant cluster groups and MMTB commenced discussions regarding the establishment of a body to represent Maniapoto in settlement negotiations. They prepared a memorandum of understanding signed on 3 July 2013 (MOU) to govern the way they would act with one another in the Maniapoto settlement negotiations. The MOU stated their purpose was to complete the preparation and implementation of a Crown approved Maniapoto Mandate Strategy until the mandated body decided the group was no longer required. Mr Maniapoto says they did this to ensure that they all acted together as one on behalf of all WAI claimants, hapū and Maniapoto and to ensure that there was only one large natural group (LNG) which the Crown wanted as a body to negotiate with.
[11] In mid-2013, the Crown commenced formal engagement with the group to develop and complete the mandate strategy process.
[12] In 2014, MMTB, Kaunihera Kaumātua o Maniapoto, and the hapū and claimant community representatives established the Maniapoto Mandate Strategy Group (MMSG) to complete the preparation of a Maniapoto mandate strategy.
[13] MMSG formed the TKM Mandate Body as the recognised body to receive mandate and negotiate and settle all treaty claims for Maniapoto, Rereahu and Te Ihingarangi in Te Rohe Pōtae and Maniapoto LNG.
[14] MMSG and TKM signed a governance statement on 19 January 2015 addressing the governance, consultation and decision-making processes of TKM. This indicated TKM was to work on behalf of all Maniapoto and was to hold the mandate.
[15] After the funding agency, Crown Forestry Rentals Trust (CFRT), agreed to resource the TKM mandate process, TKM sought to engage someone to provide administrative and project management services for it. On confirmation by CFRT in April 2015, Mr Maniapoto signed a formal service level agreement (SLA) with MMTB to provide administration support, project and financial management to TKM.
[16] The Crown, through the Office for Treaty Settlements (OTS), and CFRT recognised and endorsed TKM as the body to progress mandate and treaty settlement in the Maniapoto LNG from 2013 to 2016. Mr Maniapoto states that he, TKM and MKTR trusted MMTB implicitly to act in the best interests of TKM who led the Maniapoto settlement from 2013 to 2016.
[17] However, on 25 January 2016, MMTB announced without warning that it intended to immediately withdraw participation of its two appointed members from TKM, suspend the SLA immediately and take over the lead role of seeking mandate and settlement for Maniapoto treaty claims in the Maniapoto LNG.
[18] Thereafter, TKM received a letter from CFRT outlining concerns that TKM would no longer be able to maintain approved client status through CFRT as a result of MMTB’s actions. CFRT subsequently brought District Court debt claims against individuals including Mr Maniapoto, which were ultimately settled.
[19] Although at least 10 meetings were held over the following months, MMTB maintained its purpose to be the sole and lead authority for any mandate and settlement for Maniapoto. Despite this, TKM sought to continue to engage with Crown officials from OTS. OTS advised TKM that they would step back from discussions concerning the Maniapoto mandate representation issue until Maniapoto had settled its representation issues with MMTB. On 9 September 2016, TKM received a letter from OTS advising that they were no longer working with TKM toward a Crown endorsed mandate.
[20] Despite subsequent hui said to be opposed to an MMTB mandate, MMTB continued discussions with the Crown. On 14 December 2016, the Crown recognised a deed of mandate submitted by MMTB.
[21] Since the claimant and hapū community, and their mandated representatives, were advised of the Crown’s preference to work with MMTB rather than the hapū representative body, all approaches by hapū and claimants for withdrawal from, or change to, the mandate and mandate strategy have been rejected by MMTB.
[22] All efforts have failed including the Waitangi Tribunal urgency inquiry of MMTB’s mandate. I interpolate that the Tribunal carried out an urgent inquiry into the Crown’s recognition of MMTB’s mandate to negotiate the Ngāti Maniapoto settlement following applications made in 2017. The Tribunal reported in December 2019.3 It found that the Crown’s recognition of MMTB’s mandate was reasonable given its level of support, infrastructure and extensive involvement in previous settlements. The Tribunal considered it was also reasonable due to the lengthy discussions, conducted in good faith, with TKM for over 20 months. However, the Tribunal found that aspects of the Crown’s process in recognising MMTB’s mandate were not fair nor undertaken in good faith. The Tribunal found that MMTB’s deed of mandate was largely adequate and, provided that the Crown provides distinct recognition to certain hapū and amends aspects of the withdrawal mechanism, fit for the purpose of negotiations. The Tribunal made a number of recommendations to remedy or mitigate the claimants’ prejudice.
3 Waitangi Tribunal The Maniapoto Mandate Inquiry Report (Wai 2858, 2020).
[23] On 30 September 2021, Mr Maniapoto was advised that MMTB’s ratification voting results were accepted by the Crown.
[24] On 24 October 2021, Mr Maniapoto was advised that MMTB intended to sign the deed of settlement within a day or hours in a private signing, which he considered to be a departure from the iwi signing that normally takes place at Parliament with the apology from the Crown.
[25] This proceeding followed, with Mr Maniapoto expressing concern that if the deed was signed then it will be passed as a law and all his and TKM’s rights against MMTB may be extinguished.
[26] Since this proceeding was commenced, the Maniapoto Claims Settlement Bill was introduced into Parliament on 3 December 2021 and received its first reading on 14 December 2021. The Bill’s explanatory note states:
The Bill gives effect to certain matters contained in the Deed of Settlement (the Deed), signed on 11 November 2021 between the Crown and Maniapoto. The Deed will settle all the historical Treaty of Waitangi claims of Maniapoto resulting from acts or omissions by the Crown before 21 September 1992.
[27] The deed of settlement is not before the Court. I was referred to a clause in the initialled deed that records that the deed may not be filed as evidence in a court.
Interim relief sought
[28]The amended application for interim injunction seeks the following relief:
(a)An interim order of injunction, from the date the order is made until
2021, restraining the respondent/defendant, its servants, agents or employees including any post-settlement governance entity (PSGE) and any member of the Maniapoto Māori Trust Board Group or any other entity, body, organisation or person associated or connected in any way to the respondent/defendant, from:
(i)signing the Trust Deed to establish the PSGE, Te Nehenehenui Trust or do anything in any way to effect the creation, establishment or operation of Te Nehenehenui Trust;
(ii)appointing trustees or any other person, body, entity or thing to have control, management or authority of any kind of Te Nehenehenui Trust;
(iii)disposing of, dealing with or diminishing the value of assets, whether tangible, intangible, cultural or whatever, held by the respondent/defendant, its servants, agents or employees including by any PSGE and any member of the Maniapoto Māori Trust Board Group or any other entity, body, organisation or person directly or indirectly associated or connected in any way to the respondent/defendant;
(iv)dealing with, engaging, acting on or in any way implementing any terms, clause, provision, partially or wholly, of any contract, agreement, deed or arrangement signed or agreed to by the respondent/defendant, its servants, agents or employees including by any PSGE and any member of the Maniapoto Māori Trust Board Group or any other entity, body, organisation or person directly or indirectly associated or connected in any way to the respondent/defendant;
(v)receiving or accepting the transfer of or transferring, or preparing or executing any documents for the receipt or transfer, of Crown assets, funds or any other property, whether real, cultural or other, as trust property or any other property under the control, management or authority of Te Nehenehenui Trust or any other entity, organisation or body under the direct or indirect control of or any connection to the respondent/defendant, its servants, agents or employees including any PSGE and any member of the Maniapoto Māori Trust Board Group or any other entity, body, organisation or person directly or indirectly associated or connected in any way to the respondent/defendant;
(vi)disestablishing, devolving or in any way reducing the respondent/defendant, its servants, agents or employees including any PSGE and any member of the Maniapoto Māori Trust Board Group or any other entity, body, organisation or person directly or indirectly associated or connected in any way to the respondent/defendant;
(vii)preparing or executing any documents in any way to effect, achieve or implement in any [way] the disestablishment, devolving or reducing of the respondent/defendant, its servants, agents or employees including any PSGE and any member of the Maniapoto Māori Trust Board Group or any other entity, body, organisation or person directly or indirectly associated or connected in any way to the respondent/defendant;
(viii)doing any work or thing whatsoever, including any discussions, meetings, correspondence or anything at all, on progressing the Ngāti Maniapoto settlement or negotiations or settlement legislation in [any] way;
(ix)engaging with or interacting, corresponding or working in any way or sharing any information in any way with the Crown, Ministers and all its staff and agents in progressing the Ngāti Maniapoto settlement or negotiations or settlement legislation in any way.
(b)An interim order of injunction, from the date the order is made until
2021, compelling the respondent/defendant to withdraw from all engagements and settlement activities of any kind, including the settlement legislation, with the Crown, Ministers and all its staff and agents in order to progress, discuss or in any way advance the Ngāti Maniapoto settlement or negotiations or settlement legislation in [any] way.
(c)Such further or other order as is just.
[29]The freezing order sought is in the following terms:
(a)An interim freezing order restraining the respondent/defendant, its servants, agents or employees including any post-settlement governance entity and any member of the Maniapoto Māori Trust Board Group or any other entity, body, organisation or person associated or connected in any way to the respondent/defendant, from disposing of, dealing with or diminishing the value of assets, whether tangible, intangible, cultural or whatever, held by the respondent/defendant, its servants, agents or employees including any post- settlement governance entity and any member of the Maniapoto Māori Trust Board Group or any other entity, body, organisation or person associated or connected in any way to the respondent/defendant, including any contract, agreement, deed or arrangement signed or agreed to, from the date this order was made until 2021.
(b)An ancillary order compelling the respondent/defendant to disclose all assets, whether tangible, cultural or whatever, and value of those assets, held by the respondent/defendant, its servants, agents or employees including any post- settlement governance entity and any member of the Maniapoto Māori Trust Board Group or any other entity, body, organisation or person associated or connected in any way to the respondent/defendant, within five working days of the date of this order.
(c)Such further or other orders as is just.
[30] Mr Tennet, for Mr Maniapoto, accepted that the PSGE is a separate entity from MMTB and is not joined as a defendant, albeit he said it involves the same individuals as MMTB. Mr Milner, for MMTB, said the PSGE is Te Nehenehenui, a separate trust with its own trust deed dated 17 October 2021. Mr Tennet acknowledged the need to confine the relief sought. His concern was to restrain MMTB from doing anything further to upset the status quo although he submitted it is unclear what that may be due to a lack of information from MMTB. Ultimately, Mr Tennet confined the terms of interim injunction sought to restraining MMTB directly or indirectly from taking any
steps to transfer assets relating to the specific WAI claims identified in the statement of claim and any money or land that flows from that, or to wind up MMTB.
[31] Mr Tennet also disclaimed any intention to stray into territory covered by Parliamentary privilege. But he relied on Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General,4 where the Court of Appeal referred to the authorities, including the Supreme Court decision in Ngāti Whātua Ōrākei Trust v Attorney- General,5 and said:
That said, the reasoning of both the majority and Elias CJ in Ngāti Whātua is consistent with the proposition that the courts may make declarations of existing right, interest or entitlement whether or not there is a bill before the House which may affect them in some way. Such relief is not “in relation to parliamentary proceedings”, in the sense provided for by in the Parliamentary Privilege Act. It does not amount to an interference by the courts in Parliament’s “proper sphere of influence and privileges” because such declarations would be about existing rights, interests or entitlements, and not what Parliament may be proposing to do in relation to them.6
[32] Although there is overlap between the interim injunction and freezing orders sought, I will deal with them separately given the different principles involved.
Interim injunction
General principles
[33]The applicable principles are not in dispute. As the Court of Appeal said in
Commerce Commission v Viagogo AG:7
[30] The principles that govern the grant of interim injunctions under r 7.53 and the court's inherent jurisdiction are well settled. The court will usually adopt a two-stage approach.8 The first inquiry is whether there is a serious question to be tried. If that threshold is met, the court moves on to consider whether the balance of convenience favours granting or refusing relief. But as this Court observed in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd, considerations are marshalled under these (non-exhaustive) heads as “an aid to determining, as regards the grant or refusal of an interim injunction,
4 Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General [2020] NZCA 2, [2020] 3 NZLR 1 at [33].
5 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116.
6 Parliamentary Privilege Act 2014, s 4(1)(b).
7 Commerce Commission v Viagogo AG [2019] NZCA 472, [2019] 3 NZLR 559.
8 See American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL).
where overall justice lies. In every case the Judge has finally to stand back and ask himself that question.”9
[31] As Lord Hoffmann said in delivering the advice of the Privy Council in National Commercial Bank Jamaica Ltd v Olint Corp Ltd:10
“The purpose of such an injunction is to improve the chances of the court being able to do justice after a determination of the merits at the trial. …
The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other.”
Serious question to be tried
The claim
[34] The statement of claim contains two causes of action. First, a claim that MMTB was in a fiduciary relationship with Mr Maniapoto and TKM since 2013 and breached the fiduciary obligations of utmost trust and loyalty owed to Mr Maniapoto and TKM by taking the joint venture for itself.11 Secondly, MMTB is estopped from taking further steps in formalising the deed of settlement in relation to the WAI claims represented by Mr Maniapoto and TKM due to breaching its fiduciary obligations. Mr Tennet confirmed that the estoppel claim is one of estoppel by representation. As it is based on breach of fiduciary obligations, it does not require separate consideration on this application.
[35] The substantive relief sought in the statement of claim includes a permanent injunction restraining further steps to formalise the deed of settlement regarding the WAI claims,12 requiring MMTB to remove all WAI claims represented by TKM from the deed and release information and documents, and damages. In the alternative, the statement of claim seeks a declaration that MMTB’s signing of the deed is null and void.
9 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142.
10 National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16, [2009] 1 WLR 1405 at [16]-[17].
11 Mr Tennet said that, if necessary, other members of TKM could be joined as co-plaintiffs.
12 The statement of claim has not yet been amended to reflect the fact that the deed of settlement has been signed. Mr Tennet acknowledged the relief sought will need refinement.
Fiduciary relationship
[36] Mr Tennet submitted that the facts support a fiduciary relationship: in the period from 2013 until early 2016, the parties entered into a relationship of obligations, working closely together; Mr Maniapoto, TKM and MKTR trusted MMTB implicitly to act in the best interests of TKM working up a strategy and leading the Maniapoto settlement; governing documents detailing the reciprocal obligations were signed, including the MOU and governance statement; conflict of interest matters were recorded at every TKM meeting; and TKM trusted MMTB to manage their information, infrastructure, key stakeholder relationships and support them in maintaining compliance with the settlement funding contract. I was not referred to the documents in any detail.13
[37] Mr Milner submitted there is no fiduciary relationship owed to Mr Maniapoto of the nature described in the claim. He submitted there is no serious question to be tried. However, he did not seek to dispute the facts alleged by Mr Maniapoto by reference to the affidavit of Mr Ikin, MMTB’s Chairperson, no doubt appreciating that a conflict of evidence could not be resolved on affidavits for the purpose of interim relief. Rather, Mr Milner based his challenge to the claimed fiduciary relationship on the application of fiduciary principles to those facts.
[38] The principles governing whether a relationship is of a fiduciary nature are not in dispute. They were summarised by Kós P for the Court of Appeal in Dold v Murphy:14
[52] First, fiduciary duties are assumed responsibilities. Fiduciary responsibility may be inferred where the relationship is one of assumed trust, confidence and loyalty. These qualities were identified in a trio of New Zealand Supreme Court decisions in the latter-half of the first decade of this century: Chirnside v Fay, Paper Reclaim Ltd v Aotearoa International Ltd and Amaltal Corp Ltd v Maruha Corp.15 As Tipping J noted in the Chirnside decision, a relationship may give rise to fiduciary duties in two situations. The first is where there is an inherently fiduciary relationship between the parties, such as between solicitor and client, trustee and beneficiary, and
13 Nor at all except for the few documents referred to. The electronic bundle exceeded 4,000 pages without page numbers or hyperlinking.
14 Dold v Murphy [2020] NZCA 313, [2021] 2 NZLR 834 at [52]-[56].
15 Chirnside v Fay [2006] NZSC 68, [2007] 1 NZLR 433; Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 26, [2007] 3 NZLR 169; and Amaltal Corporation Ltd v Maruha Corporation [2007] NZSC 40, [2007] 3 NZLR 192 at [20].
principal and agent.16 The second context is where particular aspects of a relationship that is not inherently fiduciary nonetheless justify it being classified as such. As Tipping J has noted:17
No single formula or test has received universal acceptance in deciding whether a relationship outside the recognised categories is such that the parties owe each other obligations of a fiduciary kind.
But the Judge went on to note:18
[A] ll fiduciary relationships, whether inherent or particular, are marked by the entitlement … of one party to place trust and confidence in the other. That party is entitled to rely on the other party not to act in a way which is contrary to the first party’s interests.
[53] The point was put slightly differently by Blanchard J in the Paper Reclaim decision:19
A fiduciary relationship will be found when one party is entitled to repose and does repose trust and confidence in the other. The existence of an agreement, express or implied, to act on behalf of another and thus to put the interests of the other before one’s own is a frequent manifestation of a situation in which fiduciary obligations are owed. Partners are a classic example of parties in that situation. Their position is different from that of parties to a contract who may have to cooperate but are doing so for their separate advantages.
[54]The same Judge put it slightly differently again in the Amaltal
decision, noting that in a fiduciary relationship:20
[O]ne party is entitled to rely upon the other, not just for adherence to contractual arrangements between them, but also for loyal performance of some function which the latter has either agreed to perform for the other or for both or has, perhaps less formally, even by conduct, assumed.
[55] We consider the relevant principles can be summarised in this way. Some relationships are inherently fiduciary in nature, involving trust, confidence and a degree of dependence, such as solicitor and client and trustee and beneficiary. In other cases a fiduciary relationship is only likely to be inferred when the legal relationship between parties involves: (1) the conferral of powers in favour of the alleged fiduciary, which may be used to affect the proprietary rights of the beneficiary; (2) the apparent assumption of a representative or protective responsibility by the alleged fiduciary for the beneficiary (for example, to promote the beneficiary’s interests, or to prefer the interests of the beneficiary over those of third parties); and (3) the implied subordination (although, not necessarily, elimination) of the alleged fiduciary’s own self-interest.
16 Chirnside v Fay [2006] NZSC 68, [2007] 1 NZLR 433 at [73].
17 At [75].
18 At [80].
19 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 26, [2007] 3 NZLR 169 at [31] (footnote omitted).
20 Amaltal Corporation Ltd v Maruha Corporation [2007] NZSC 40, [2007] 3 NZLR 192 at [21].
[56] Secondly, where the essential legal relationship is contractual, primacy must be given to the contract. The contract is the starting place. As Blanchard J observed in Paper Reclaim:21
When parties have formed a contract the correct approach is first to decide exactly what they have agreed upon. Only then should the court consider whether any particular aspect of their agreement gives rise to a relationship which can properly be characterised as fiduciary, imposing an obligation of loyalty on one or both parties, which supplements the express or implied contractual powers. It is not enough to attract an obligation of loyalty that one party may have given up more than the other in entering into the contract or that the contract may be more advantageous for one party than the other. Nor is a relationship fiduciary in nature merely because the parties may be depending upon one to perform the contract in its terms. That would be true of many commercial contracts which require co-operation.
[39] Applying these fiduciary principles to the facts claimed and not disputed, I make the following points. First, the MOU and governance statement relied on may fall short of establishing the kind of legal relationship required, that is involving conferral of powers, assumption of responsibility and subordination of self-interest. But given Mr Maniapoto’s evidence, whether there was a joint venture of the type required to give rise to a fiduciary relationship is a question for trial. So too is consideration of Mr Ikin’s account of the factual background.
[40] Secondly, I accept that the Waitangi Tribunal’s inquiry into MMTB’s mandate was not addressing whether MMTB owed fiduciary obligations to Mr Maniapoto or TKM.
[41] Thirdly, I also accept that substantive determination of the alleged fiduciary and estoppel claims while the Bill is before the House would not encroach on Parliamentary privilege insofar as it is merely declaratory of existing rights.
[42] For these reasons, I consider there is a serious question to be tried as to whether MMTB acted in breach of fiduciary duty.
[43] However, even if breach of fiduciary duty can be made out at trial, it is necessary to identify what the substantive relief might be in order to consider the question of interim relief, not least because of the issue of Parliamentary privilege.
21 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 26, [2007] 3 NZLR 169 at [31].
The serious question to be tried needs to extend to the claimed substantive relief underpinning the need for an interim injunction.
[44] Several difficulties arise. As Mr Tennet acknowledged, the relief sought at trial will need to be refined. That has not yet occurred, and the current pleading is not a solid platform on which to seek interim relief. Further, Mr Tennet submitted that this proceeding is not seeking to question whether the Crown had the right to negotiate with MMTB nor asking the Court to decide what the Crown should do despite what he characterised as a low vote in favour of the settlement. Mr Milner said the level of approval was comparable with other settlements,22 and submitted that the claim really is about MMTB’s mandate to negotiate with the Crown in respect of certain WAI claims. While Mr Tennet submitted that Mr Maniapoto does not seek to undermine the settlement, he also submitted it can go ahead if the breach is remedied. Mr Maniapoto’s position is that his/TKM’s WAI claims should be removed from the settlement. To that extent, he disputes the settlement. Despite the acknowledgements, he seeks to restrain progress of the settlement pending determination of this proceeding.
[45] The first difficulty is that MMTB does not assert ownership of the WAI claims of Mr Maniapoto and TKM. They are not assets owned by MMTB. Nor are they owned in any proprietary sense by Mr Maniapoto or TKM. The issue is whether they are to be included in the Crown settlement. As Mr Milner submitted, individual claimants do not have a right of veto in respect of any settlement – at least where there is clear evidence that the Crown is following the wishes of the majority of the collective that has been mandated for negotiations.23
[46] The second difficulty relates to Parliamentary privilege. Insofar as the claim is that the settlement should not include these WAI claims, the relief sought is to remove the WAI claims from the settlement. That involves an amendment to the Bill. Otherwise, the historical WAI claims are to be settled by statute. While the Court of Appeal has indicated that the courts may make declarations of existing right, interest
22 84% of those voting, being 37% of eligible voters.
23 Waitangi Tribunal The East Coast Settlement Report (Wai 2190, 2020) at 49.
or entitlement whether or not there is a bill before the House,24 it is difficult to see how the claims against MMTB in this proceeding could give rise to any remedy in this Court – even a declaration – impinging on the inclusion of the WAI claims in the settlement.
[47] The third difficulty concerns causation. It is necessary to distinguish between loss or profit caused by the breach of fiduciary duty and a WAI claimant’s “loss” due to a statutory bar on settled WAI claims.
[48] Mr Ikin states that the deed records that it is conditional until the settlement legislation comes into force; that settlement redress, including property, funds or other property will transfer to the PSGE, not to MMTB; and that the settlement legislation will dissolve MMTB (and the Maniapoto Fisheries Trust) and vest all of its assets and liabilities in the PSGE. Mr Milner submitted this follows the approach in other Treaty claims.
[49] The fiduciary claim is in essence a claim for loss of opportunity to lead the settlement negotiations and obtain a mandate. In a case where a fiduciary benefits from a commercial opportunity in breach of the duty of loyalty, the fiduciary will likely hold any profits on trust. But here the lost opportunity is to negotiate with the Crown and the “profit”, that is the benefit of the Crown’s settlement redress, will not go to MMTB but to the PSGE. Any available remedy from MMTB if breach of fiduciary duty is ultimately made out is likely to be limited to equitable compensation and/or a declaration to restore mana.
[50] In these circumstances, especially now that the deed of settlement has been signed and the Bill is before the House, it is difficult to see how the claim could result in any non-monetary substantive relief that could underpin an interim injunction.
[51] For these reasons, in relation to a claim for non-monetary substantive relief (which has yet to be refined), I do not consider there is a serious question to be tried.
24 Above at [31]; Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General
[2020] NZCA 2, [2020] 3 NZLR 1 (CA) at [33].
[52] Even though the serious question threshold is not met, I move on to consider whether the balance of convenience favours granting or refusing relief since these two heads are only an aid to determining where overall justice lies.25
Balance of convenience
[53] When assessing the balance of irremediable prejudice, a primary consideration is whether damages will be an adequate remedy for either party. Mr Tennet submitted that damages will not sufficiently compensate Mr Maniapoto and those he represents for the loss of the WAI claims. If there were a basis for claiming that the WAI claims should be removed from the settlement, it is unclear whether damages would be an adequate remedy. Whether or not MMTB is able to pay compensation, if MMTB’s liability is transferred to the PSGE, which is the recipient of the Crown’s settlement redress, it should be in a position to compensate for financial loss. The continuation and enforceability of proceedings – such as this proceeding – against the PSGE is reflected in cl 216 of the Bill. But I accept that damages may not compensate Mr Maniapoto (or TKM) for other loss, such as loss of their mātauranga Māori.
[54] MMTB did not articulate the damage it would suffer if interim relief were granted. It is unclear what damage there would be given the deed of settlement is already signed, the matter is now before Parliament and MMTB is to be dissolved. Nevertheless, MMTB raised that Mr Maniapoto has not provided an undertaking as to damages. Mr Tennet submitted that I should not require an undertaking on the basis this claim is in the public interest, referring to Finnigan v New Zealand Rugby Football Union Inc.26 In that case, however, the plaintiffs did give an undertaking and the interim injunction granted was conditional on it being extended, albeit it was discharged apparently by consent as part of the resolution of the proceeding.27 In any event, r 7.54 of the High Court Rules 2016 requires an undertaking as to damages by an applicant for an interlocutory injunction. There is conflicting authority as to
25 Above at [33]; Commerce Commission v Viagogo AG [2019] NZCA 472, [2019] 3 NZLR 559 at [30], citing Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142.
26 Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 181 (HC).
27 At 188-189.
whether the Court has a discretion to dispense with it.28 Assuming the Court does have a discretion to dispense with the requirement notwithstanding the apparently mandatory terms of the rule, it is only likely to be exercised in narrow circumstances. I am not persuaded this is such a case. This is not an application for judicial review but a breach of fiduciary duty claim against MMTB seeking relief that includes damages. Rather than Mr Tennet’s proposed alternative that any injunction be granted on terms that make it more easily set aside in the event of damage to MMTB, I consider the appropriate alternative would be to make any interim order conditional on the provision of an undertaking.
[55]Thus, inadequacy of damages is more of an issue for Mr Maniapoto.
[56] I do not accept Mr Tennet’s submission that the circumstances favour a pause, that is preserving the status quo pending determination of the substantive claim. Weighed against the low prospect of non-monetary substantive relief, the interests of third parties are relevant. The Crown has reached a deed of settlement following the Waitangi Tribunal’s mandate inquiry and the interests of the supporters of the mandate should also be weighed. The PSGE is not a party to this proceeding, nor been served.
[57] Mr Tennet submitted that MMTB’s conduct weighs in favour of interim relief. He submitted MMTB’s breach is ongoing and it has not been transparent. While he accepted that the deed of settlement was signed by MMTB before service of the Court documents on 29 October 2021, he submitted that Mr Maniapoto’s history of objection was known, the deed was signed in haste and an inference could be drawn. While MMTB knew there had been earlier proceedings in the District Court and the Tribunal and that support was not unanimous, I do not infer that MMTB signed the deed with knowledge of the intended injunction application.
[58] Mr Tennet also submitted that MMTB did nothing to prevent the signing of the deed by the Crown or the introduction of the Bill following service of this proceeding. It is unclear what, if any, steps MMTB took after service of the injunction application
28 See for example A v Fairfax New Zealand HC Wellington CIV-2011-485-569, 28 March 2011, Addendum 29 March 2011; and Andrew Beck and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR7.54.01].
before the Bill was signed by the Crown on 11 November 2021 or introduced into Parliament on 3 December 2021. While it appears that MMTB was not transparent, I do not consider that its conduct is a material factor. As Mr Milner submitted, the deed does not constitute a “point of no return” as it is conditional on the enactment of the settlement legislation (with limited exceptions). This suggests there may be room for ongoing consideration of the scope of the settlement with the Crown in relation to the WAI claims in issue.
[59] As to urgency, Mr Melvin, with a watching brief for the Attorney-General, assisted by referring to a letter from the Honourable Andrew Little, Minister for Treaty of Waitangi Negotiations, to MMTB dated 17 December 2021 which confirmed that MMTB had not sought urgency to be applied to any stage of the legislative process for the Bill and that the Minister had not sought, and did not intend to seek, urgency for any stage of the legislative process for the Bill. However, the Minister noted that a decision to consider a Bill under urgency is ultimately a decision of the House.
[60] MMTB says that the Bill will not pass for 12 to 18 months and so interim relief is not needed as there is plenty of time to conclude this proceeding. If so, that weighs against interim relief. Once the substantive relief sought is clarified, the parties can consider the need for priority if substantive determination of the proceeding is needed before the legislation is enacted.
[61] Delay also counts against interim relief. The alleged breach occurred in January 2016. Ms Maniapoto acknowledged that everything afterwards followed the breach, submitting it was relevant to harm. While various other steps have been taken to address the mandate issue, including the Waitangi Tribunal mandate inquiry, the fiduciary claim was only commenced in October 2021 after Mr Maniapoto learned that the deed of settlement was about to be signed. As Mr Milner submitted, Mr Maniapoto would have been aware that negotiations between MMTB and the Crown continued after the Waitangi Tribunal report in December 2019. Mr Milner did not accept there had been a rush to sign, noting that the deed of settlement was initialled in December 2020. This was posted on the websites of MMTB and Te Arawhiti (as OTS is now called).
[62] For these reasons, I consider the balance of convenience weighs against granting interim relief.
Overall justice
[63] I accept that Mr Maniapoto’s claims against MMTB have a public interest component given its status as Treaty partner in the Maniapoto settlement, which goes beyond the scope of the Waitangi Tribunal mandate inquiry. But I have concluded that, even if breach of fiduciary duty is made out, there is no serious question to be tried in relation to non-monetary substantive relief that could underpin an interim injunction. I also consider the balance of convenience weighs against granting interim relief.
[64] Standing back, I consider that overall justice is strongly against the grant of an interim injunction.
Freezing order
[65] The Court may make a freezing order restraining a party from removing assets or disposing of, dealing with or diminishing the value of those assets.29 While preserving the flexibility of the remedy and the need to consider the overall justice of the case, there are three broad requirements for a freezing order:
(a)a good arguable case;
(b)assets of the respondent to which the order can apply; and
(c)a real risk of dissipation.
[66] Rule 32.2(5) requires an undertaking as to damages by an applicant for a freezing order. However, r 32.6(4) envisages that if there are special circumstances an undertaking may not be required. For the reasons given above, I do not consider there are special circumstances. Any freezing order should be conditional on the provision of an undertaking.
29 High Court Rules 2016, r 32.2.
[67] For the reasons given above, I accept the alleged breach of fiduciary duty is arguable. However, even assuming there is a good arguable case and MMTB has assets to which the order can apply (the WAI claims are not such assets), I do not consider there is a real risk of dissipation. There is no suggestion MMTB will remove its existing assets from New Zealand. There is no imminent risk that MMTB will dispose of its existing assets or be dissolved. MMTB was created by statute and is governed by statute. In addition to the Maniapoto Maori Trust Board Act 1988, MMTB holds its assets subject to the terms of the Māori Trust Boards Act 1955, and a significant proportion of its assets can only be transferred in accordance with the requirements of the Māori Fisheries Act 2004. MMTB can only be dissolved by statute, which is intended to occur when the settlement legislation is enacted in due course. The settlement redress will go to the PSGE, not MMTB. In the meantime, the PSGE is not under the control of MMTB even if it has common board members. Also, MMTB’s liabilities will continue with the PSGE.
[68]For these reasons, the requirements for a freezing order are not made out.
Result
[69]The applications for interim injunction and freezing orders are dismissed.
Costs
[70] MMTB is entitled to costs. If they cannot be agreed, the parties are to file memoranda not exceeding three pages within 15 working days, and I will determine costs on the papers.
Gault J
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