Mercury NZ Limited v Waitangi Tribunal - [2020] NZHC 598

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-129

[2020] NZHC 598

UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules

BETWEEN

MERCURY NZ LIMITED

Plaintiff

AND

WAITANGI TRIBUNAL

Defendant

Hearing: 19 March 2020

Counsel:

J E Hodder QC and L L Fraser for Plaintiff V Hardy and C Tyson for Crown

A Bloomfield for the Waitangi Tribunal
P Radich QC, M K Mahuika and T N Hauraki for Wairarapa Moana Ki Pouakani Inc.

M G Colson and E J Watt for Ngāti Kahungungu ki Wairarapa Tamaki Nui-ā-Rua Settlement Trust

Judgment:

23 March 2020

JUDGMENT OF SIMON FRANCE J

Introduction

[1] Mercury NZ Limited seeks interim orders under s 15 of the Judicial Review Procedure Act 2016. The orders would require the Waitangi Tribunal not to issue a document, called the First Determination, until Mercury’s judicial review challenge to a prior procedural step is determined. The orders are supported by the Crown and opposed by the two claimants Wairarapa Moana Ki Pouakani Inc (the Incorporation) and Ngāti Kahungungu ki Wairarapa Tamaki-ā-Rua Settlement Trust (the Settlement

MERCURY NZ LIMITED v WAITANGI TRIBUNAL [2020] NZHC 598 [23 March 2020]

Trust). The Waitangi Tribunal abides. The process challenge is that Mercury have been denied the ability to present evidence and make submissions.

Background

[2] The Waitangi Tribunal is hearing applications by the Incorporation and the Settlement Trust for resumption orders over land in the Waikato. Part of the land is presently owned by Mercury, subject to memorials entered under s 27A of the State- Owned Enterprises Act 1986. On Mercury’s land sit the Maraetai I and Maraetai II power stations. Another part of the land is leased by Mercury to Transpower for transmission activities, and that contains two switch-yards. On a third parcel of land there is a substation.

[3] Applications such as these are brought under s 8A of the Treaty of Waitangi Act 1975. The Tribunal must first decide if a claim is well-founded. If so, and if the claimant seeks it, the Tribunal has a power to recommend that specific land be returned to Māori ownership. The return can be on such terms and conditions as the Tribunal thinks fit. Pursuant to s 8B of the Act, any recommendation of the Tribunal to this effect is first classified as an “interim recommendation”. The making of an interim recommendation triggers a 90-day period in which the parties may enter into negotiations. After 90 days, if the matter has not been otherwise settled, the interim recommendations become final. Relevant to the present case, s 8A(3) says that when determining whether to recommend land be returned, the Tribunal is to not have regard to any change in the condition of the land or in ownership from the time immediately before the transfer of the land to a State enterprise.

[4] The Tribunal is well advanced in its hearing of the applications. It has been held the claim…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] NZHC 598
Decision Date: 23 March 2020

CaseChat Overview and Summary

Mercury NZ Limited sought interim orders preventing the Waitangi Tribunal from releasing a document called the First Determination. The Waitangi Tribunal is hearing applications from Wairarapa Moana Ki Pouakani Inc and Ngāti Kahungungu ki Wairarapa Tamaki Nui-ā-Rua Settlement Trust for resumption orders over land in the Waikato. Mercury’s application for judicial review concerns the Tribunal’s refusal to allow Mercury to present evidence and make submissions. The key issue is whether s 8C of the Treaty of Waitangi Act 1975 is an exhaustive list of those able to be heard or a restricted list of those entitled to be heard. Mercury and the Crown argued that s 8C only identified those with a right to appear, not an exhaustive list of those who could be heard. The Tribunal, however, rejected this view, holding that s 8C was an exhaustive list of those who could be heard. The court found that Mercury had a tenable argument that the Tribunal operated on an error of law. The statutory threshold for an interim order was whether there was a position to preserve. There was a tenable argument that the Tribunal had a discretion to hear parties other than those listed in s 8C. Mercury made its application at a time prior to the issuing of the First Determination. It was rejected by the Tribunal without being considered on its merits. Without relief, Mercury would lose the opportunity to have input into what was the pivotal initial decision – whether to order return of the land. However, the First Determination was ready for release and had been for a few days. The Tribunal had reached a view, whether or not the Determination was released. The court concluded that there was little practical difference between Mercury being heard before or after the release of the First Determination. There was plenty of opportunity for Mercury to be heard if that was what eventuated. The application for interim orders was declined.

Orders