Morley Paikea Powell v The Attorney-General

IN THE COURT OF APPEAL OF NEW ZEALAND

CA167/99

BETWEEN	MORLEY PAIKEA POWELL
Appellant

AND	THE ATTORNEY-GENERAL
First Respondent

AND	MINISTER IN CHARGE OF TREATY OF WAITANGI NEGOTIATIONS
Second Respondent

Hearing:	24 May 2000
Coram:	Richardson P Gault J Keith J
Appearances:	Appellant in person
P J Andrew and A K Irwin for Respondents
Judgment:	28 June 2000

JUDGMENT OF THE COURT

This is an appeal against an order made in the High Court striking out the appellant’s claim for declarations under the Declaratory Judgments Act 1908.
The appellant, Morley Paikea Powell, alleges in his statement of claim that he is a member of “the Te Uri O Hau Hapu; and the Te Tao U Hapu of the Ngati Haumoewharangi sub-tribe of the Ngati Whatua Iwi”. He claims as a representative of members of the Ngati Whatua Iwi (“the Tribe”). In oral argument Mr Powell focussed on the concerns of the Te Taou hapu.
These proceedings have their beginning in a challenge in the High Court to the “piecemeal method of Treaty grievance settlements with the Ngati Whatua tribe” made by Mr Powell on 1 August 1997. An application for an interim injunction brought by Mr Powell attempting to prevent the Waitangi Tribunal hearing on the Kaipara land claim from proceeding was declined by Anderson J. Mr Powell then filed several statements of claim over the period of approximately one year. By the fifth amended statement of claim, he sought two declarations. The second of these concerned the effect of the Treaty of Waitangi (Claims) Fisheries Act 1991 and is not pursued on appeal. The first was:
A declaration that the Crown by the Orakei Act 1991 has to the exclusion of the Tribe alienated land over which the Tribe has customary or native title.
In what is effectively a sixth amended statement of claim Mr Powell submitted that the Orakei Act does not relieve the Crown of its obligation to pay adequate compensation to the Tribe for the extinguishment of its native title.
The Crown applied to strike out the proceedings on the basis that there was no justiciable issue as the claim constituted a challenge to the legislation itself.
Section 3 of the Declaratory Judgments Act provides:
Declaratory Orders On Originating Summons--
Where any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any statute, or any regulation made by the Governor-General in Council under statutory authority, or any bylaw made by a local authority, or any deed, will, or document of title, or any agreement made or evidenced by writing, or any memorandum or articles of association of any company or body corporate, or any instrument prescribing the powers of any company or body corporate; or
Where any person claims to have acquired any right under any such statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument, or to be in any other manner interested in the construction or validity thereof,--
such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument, or of any part thereof.
Salmon J granted the application to strike out. He viewed the claim as an attempt to challenge the validity of the Orakei Act, despite Mr Powell’s assertions that he was not attacking the Act or challenging the settlement. The Judge thus found that the declaration sought was not available. Salmon J recorded the Crown’s acceptance that the Orakei Act is limited to settlement of the claims of the Orakei hapu and that the wider claims of Ngati Whatua are still to be resolved. He suggested that the matters raised by Mr Powell appeared to be more appropriate for determination by the Waitangi Tribunal.
Mr Powell appeared in person to appeal Salmon J’s order striking out his statement of claim. Mr Powell’s submissions focussed on the issue of representation and the scope of the Orakei Trust Board’s powers as set out in the Orakei Act. The Orakei Act provides for the recognition of rights secured to the Ngati Whatua o Orakei in relation to the Orakei Block by the Treaty of Waitangi by implementing parts of an agreement reached between the Crown and the Ngati Whatua o Orakei over land known as the Orakei Block. It also implements, with modifications, recommendations made by the Waitangi Tribunal in November 1987 in the Report of the Waitangi Tribunal on the Orakei Claim (Wai 9).
The Trust Board is constituted by s 9 of the Orakei Act. The relevant provisions are:
9 Ngati Whatua o Orakei Maori Trust Board--
(1) The body corporate constituted by section 4 of the former Act, under the name of the Ngati Whatua of Orakei Maori Trust Board, shall continue in being notwithstanding the repeal of the former Act by this Act.
(2) As from the commencement of this Act the Trust Board shall be known as the Ngati Whatua o Orakei Maori Trust Board.
(3) The Trust Board shall continue to be a Maori Trust Board within the meaning and for the purposes of the Maori Trust Boards Act 1955, and, subject to the provisions of this Act, the provisions of that Act shall apply accordingly.

10 Beneficiaries--
The beneficiaries of the Trust Board are hereby declared to be the living members of the hapu, being the descendants of their common ancestor Tuperiri.

The Orakei Trust Board was originally constituted by s 4 of the Orakei Block (Vesting and Use) Act 1978 (“1978 Act”). That Act was enacted to implement an agreement reached between the Ngati Whatua o Orakei hapu and the Crown regarding land at Orakei, and in particular land in and around Okahu Bay and Bastion Point. The Orakei Trust Board has the sole authority to negotiate on behalf of the hapu. This power of the Trust Board is set out in s 19 of the Orakei Act:
19 Power Of Trust Board To Negotiate Outstanding Claims‑‑
(1) Subject to subsection (2) of this section, in addition to the functions and powers conferred on the Trust Board by the Maori Trust Boards Act 1955, or by the other sections of this Act, the Trust Board may from time to time negotiate with the Crown, or any other body or authority concerned, for the settlement of any outstanding claims relating to the customary rights and usages of the hapu, including those matters which derive from the mana whenua of the hapu in the Tamaki isthmus, and the Trust Board shall have the sole authority to conduct any such negotiations in respect of the hapu, or of any particular whanau or group within the hapu.
(2) This Act shall constitute a full and final settlement of any claim which the hapu may have against the Crown in relation to the Orakei Block.
The hapu is defined in s 2 as “the Maori subtribe or hapu known as Ngati Whatua o Orakei, being a hapu of the Maori tribe or iwi named Ngati Whatua”. The composition of this hapu is not made explicit. An indication can be found in the preamble to the 1978 Act, which stated that the Orakei hapu consisted of the Taou, Ngaoho, and Te Uringutu hapu of Ngati Whatua. Section 6 of the 1978 Act provided for a register of beneficiaries to be drawn up.
In the course of oral argument it was common ground between the parties that Te Taou is not part of the Ngati Whatua o Orakei hapu. It was not a point of submission how or whether the Te Taou hapu represented by Mr Powell differs from the Te Taou of the preamble to the 1978 Act.
There also appeared to be no dispute between the parties as to the effect of the Orakei Act on the ability of Te Taou to negotiate on its own behalf in respect of claims over the Tamaki isthmus. The position was succinctly set out in the Crown’s submissions:
There is, however, no dispute between the parties that the Orakei Act is confined to the Orakei Block. This includes section 19(2) which provides for a full and final settlement. The only exception is section 19(1) which confers sole authority on the Orakei Trust Board with respect to negotiating outstanding Orakei hapu claims in the Tamaki isthmus. Again, however, there is no dispute that section 19(1) does not create an exclusive authority as against other hapu of Ngati Whatua or as against the hapu of another tribe.
However, the Crown is not speaking for the Trust Board and the Trust Board may not share that view.
In the absence of dispute over the meaning and effect of the Orakei Act or any of its provisions there is no scope for a declaration. The present parties agree that the Orakei Trust Board has no mandate to negotiate on behalf of Te Taou. The fifth statement of claim and what is effectively the sixth statement of claim filed by Mr Powell do not contain sufficient allegations of the Trust Board acting beyond its statutorily conferred powers, or confusion as to the ambit of the Trust Board’s mandate, such as to warrant a declaration.
As the matter was presented to Salmon J the proceeding was rightly struck out. But conscious that he is not legally represented, we were anxious that Mr Powell should have every opportunity to identify the real issue on which he seeks the assistance of the courts. It emerged in the course of his argument that there may be a basis for his concerns which could present an issue requiring clarification.
The principles to be applied on an application to strike out were summarised in Peters v Davison [1999] 2 NZLR 164, 180:
First, as to the legal test, the causes of action pleaded must be so clearly untenable that they cannot possibly succeed. The jurisdiction to strike out is exercisable only in plain and obvious cases. In all other cases the plaintiff is not to be deprived of having the causes pleaded and dealt with in the ordinary way at trial. Second, as to the factual position, such applications are approached on the assumption that the allegations in the statement of claim are factually correct and could be proved at trial. Any relevant factual differences in the material before the Court should only be resolved at trial.
A claim is not to be struck out if the statement of claim is capable of amendment to show a tenable cause of action: R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289, 294. While the pleadings as they stand could not support an application for a declaration, we are of the view that it may be possible, by amendment to the pleadings, for Mr Powell to raise a tenable cause of action.
The definition of “hapu” within the Orakei Act and thus the question of who the Trust Board has a mandate to represent is unclear, and may appropriately be the subject of a declaration. Mr Powell would need to amend his statement of claim to allege that Te Taou is not part of the Ngati Whatua o Orakei, and is not therefore part of the hapu represented by the Trust Board. It would be necessary to add the Orakei Trust Board as a party to the proceedings.
Alternatively, or in addition, it may be that Mr Powell’s real concern is that the Orakei Trust Board has acted beyond the powers conferred on it by s 19(1) of the Orakei Act 1991 and has, in doing so, interfered with the interests of members of the Tribe who are not part of the Ngati Whatua o Orakei hapu. Mr Powell would need to amend his statement of claim to allege specific instances of the Trust Board acting beyond the scope of its powers. Again, it would be necessary to add the Orakei Trust Board as a party to the proceedings.
In the result, the appeal is allowed and the order to strike out is quashed. Mr Powell is granted leave to amend his statement of claim, adding the Orakei Trust Board as a party if appropriate. The amended statement of claim must be filed by Mr Powell in the High Court within one month of the date of this judgment.
As Mr Powell appeared in person, he is entitled to his own travel and accommodation expenses and any other necessary disbursements in relation to this appeal as approved, if necessary, by the Registrar.

Solicitors
Crown Law Office, Wellington, for Respondents

[2000] NZCA 103

28 June 2000