Mutu v Chairperson of the Waitangi Tribunal
[2019] NZHC 647
•1 April 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV 2018-485-295
[2019] NZHC 647
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review of a decision of the Chairperson of the Waitangi Tribunal and/or of a decision of the Waitangi Tribunal as to the disposition of the
application for remedies made on behalf of Te Rūnanga-a-Iwi o Ngāti Kahu
BETWEEN
MARGARET SHIRLEY MUTU AND REREMOANA RENATA
Applicants
AND
CHAIRPERSON OF THE WAITANGI TRIBUNAL
First Respondent
AND
THE WAITANGI TRIBUNAL
Second Respondent
AND
THE ATTORNEY-GENERAL
Third Respondent
Hearing: 21 February 2019 Counsel:
R D C Hindle for Applicants
C D Tyson and C J C Pouwels for Third Respondent P T Harman for Intervenor
Judgment:
1 April 2019
JUDGMENT OF SIMON FRANCE J
MUTU AND RENATA v CHAIRPERSON OF THE WAITANGI TRIBUNAL [2019] NZHC 647 [1 April 2019]
Introduction
[1] The applicants are representatives of a Far North iwi, Ngāti Kahu. Ngāti Kahu was part of a group of five iwi that in 1986 filed a claim with the Waitangi Tribunal. Part of the claims were addressed by the Tribunal in its Muriwhenua Land Report issued in 1997.1 The claims were held to be well-founded. Since then, four of the five iwi have settled their claims, but that of Ngāti Kahu remains unresolved. In 2011 Ngāti Kahu, following a final breakdown in negotiations with the Crown, asked the Tribunal to make final decisions on its claims for compensation and return of land. A key focus was a claim for binding recommendations in relation to all of the resumable land to which Ngāti Kahu laid claim.
[2] In 2013 the Tribunal issued its Remedies Report.2 The Tribunal refused to make any binding recommendations for return of land, citing amongst other things the complexities that existed due to the significant number of competing claims in relation to the lands that were the subject of Ngāti Kahu’s claim. The effect of a binding recommendation would be to remove that land from the potential reach of any other claimant, and the Tribunal declined to do this.
[3] Ngāti Kahu brought judicial review proceedings. They were successful in that the courts held that the Tribunal had misunderstood its powers concerning binding recommendations. The possibility existed that had the Tribunal applied the correct principles, some binding recommendations might have been made. The Tribunal was accordingly directed to reconsider that part of the Remedies Report that dealt with binding recommendations.3
[4] There is an unprecedented context to the Tribunal’s reconsideration task. Subsequent to the courts’ decisions, all four members of the panel which issued the Remedies Report have recused themselves from further involvement. The Chairperson of the Tribunal has appointed four replacements, but the issue arises as to what is their status – are they a new panel conducting a new inquiry, or can the new
1 Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997).
2 Waitangi Tribunal Ngāti Kahu Remedies Report (Wai 45, 2013).
3 Attorney-General v Haronga; Flavell v Waitangi Tribunal [2016] NZCA 626, [2017] 2 NZLR 394; and Flavell v Waitangi Tribunal [2015] NZHC 1907. Venerable Timoti Flavell passed away prior to the hearing of these review proceedings. The named applicants are substituted applicants.
appointees who have had no previous involvement in the matter simply pick up where the previous panel left off, thereby adopting past findings of fact and past assessments?
[5] Those familiar with the jurisprudence in this area will appreciate the existence of a further important context. The reluctance of the Tribunal to make binding recommendations has been due in part to the complexity of often having many competing claims for the same land, together with the Tribunal’s view that agreed resolutions can minimise the risk of further injustice. However, the import of the recent court decisions has been that the scheme of the legislation imposes an adjudicative function on the Tribunal once a claim meets the statutory pre-conditions for potential resumption of land (and thereby binding recommendations).4 In broad terms the Tribunal has been told it cannot decline binding recommendations merely because of the existence of these competing claims. It must in effect inquire into them and make a decision. This potentially changes the scope of the inquiry as other claims are now more in issue. The new panel must therefore now work its way through issues such as the appropriate width of the remedies hearing, bearing in mind there are these competing claims.
[6] Thus, two initial questions confronting the new panel members were: were they conceptually a new inquiry, or the continuation of an existing one; and, either way, what process is needed to ensure a fair resolution for every interested party of Ngāti Kahu’s claim for binding recommendations?
A brief history
[7] A brief history of this claim is required in order to understand the answers given by the Tribunal to these questions.
[8] As noted, five iwi from the Far North (collectively referred to as Te Hiku o Te Ika a Maui) filed their claim in 1986. The appointed Tribunal decided to first inquire into the alleged pre-1865 breaches. In 1997 the Tribunal issued the Muriwhenua Land
4 In addition to the decisions in these proceedings see also Haronga v Waitangi Tribunal [2011] NZSC 53, [2012] 2 NZLR 53; and Haronga v Waitangi Tribunal [2015] NZHC 1115. It should be noted the Court of Appeal decision in this matter, Attorney-General v Haronga; Flavell v Waitangi Tribunal, above n 3, also involved an appeal in the Haronga sequence of cases.
Report, which identified an immediate need for redress. However, at that point the Tribunal did not itself move to a remedies hearing, nor complete the process as regards the post-1865 claims. Rather, it encouraged settlement negotiations based on the initial Report.
[9] Although negotiations were protracted, ultimately four of the five iwi reached settlement. Ngāti Kahu has not settled, one of the reasons being that the Crown offer requires it to forego any post-1865 claims. In 2007, Ngāti Kahu applied to the Tribunal for binding recommendations, but the application was soon put on hold as the parties returned to the negotiating table. However, in July 2011 Ngāti Kahu declared they were no longer in negotiations and revived their 2007 application for binding recommendations concerning their claims to return of certain lands.
[10] The Muriwhenua Tribunal therefore reconvened. However, in the 14 years since its initial report much had changed. Two of the original members had passed away, and a third had been appointed to the High Court. Of the original group only one member, Ms Joanne Morris, remained available.
[11] The Treaty of Waitangi Act 1975 (the Act) has provisions allowing for replacement members. The circumstances of unavailability of the three members were all covered by the Act’s provisions and so three replacement members were appointed to continue the Muriwhenua Tribunal’s work.5 The new presiding officer was Judge Stephen Clark. Hearings took place throughout 2012, and on 1 February 2013 the Ngāti Kahu Remedies Report was issued. Then, as noted, there were judicial review proceedings that involved both the High Court and the Court of Appeal, and which resulted in the Tribunal having to repeat its consideration of the application for binding recommendations.
[12] The Tribunal having been directed to reconsider this issue, Judge Clark sought submissions on how the reconsideration should be progressed. The parties filed responses but Ngāti Kahu also filed an application for Judge Clark to recuse himself. This was based on criticisms made of Ngāti Kahu in the Remedies Report. Having
5 Treaty of Waitangi Act 1975, sch 2, cls 5AA-5AC.
heard from the parties, Judge Clark issued a decision recusing himself.6 His Honour held that while there was no merit in any of the grounds put forward by Ngāti Kahu, he considered the overall interests of the Tribunal would be best served by him recusing himself. He also considered he could not rule out unconscious bias on his part. This was in May 2017. In July 2017 the other three members of the Tribunal indicated they were of a similar view and stood down.
[13] The Waitangi Tribunal consists of up to 20 members from whom a panel is appointed for each claim. A panel will consist of between three and seven members of the Tribunal and is appointed by the Chairperson of the Tribunal, Chief Judge Wilson Isaac. The appointment process is set out in the Second Schedule to the Act:
(a)clause 5(1) says a panel must consist of a presiding officer and between two to six other members;
(b)clause 5(6) allows a panel to exercise powers notwithstanding the absence of some appointees so long as the presiding officer and two others remain, and provided that at least one of those members is Māori;
(c)clauses 5AA and 5AB allow respectively for the appointment of a replacement presiding officer and replacement members;
(d)clause 5AC sets out the circumstances under which replacement members may be appointed.
[14] When appointing the present four members following the recusals, Chief Judge Isaac declared himself to be acting under cl 5(1) of the Second Schedule.7 That is the provision governing the appointment of an initial panel. The Chief Judge did not refer to the option of using the replacement powers but did refer to the new panel “continuing” the inquiry through to its conclusion.
6 Wai 45, #2.566, Decision of the Presiding Officer on Recusal Application by Ngāti Kahu, 12 May 2017. The text is set out in the decision of Chief Justice Isaac appointing new panel members: Wai 45, #2.584, Directions of the Chairperson Regarding Recusal and Appointment of Tribunal Members, 14 July 2017.
7 Wai 45, #2.584, above n 6, at [12].
The Tribunal’s decisions
[15] The reconstituted Tribunal issued a Memorandum on 1 September 2017.8 It indicated there would be a hearing on 9–10 October to hear the parties on the scope and methodology of the rehearing of the Ngāti Kahu remedies inquiry. At this point the Tribunal identified itself as a continuation of the same inquiry:9
… Plainly, this tribunal, which has been charged with undertaking the rehearing, is strictly the same tribunal, notwithstanding its new membership. For the sake of clarity, however, it is necessary to distinguish us from the previous tribunal. This tribunal will therefore be known as ‘The Muriwhenua Remedies Rehearing Tribunal’.
[16] In seeking to provide direction for the scheduled hearing, the Tribunal noted the generality of the High Court order “setting aside those parts of the Tribunal’s report that relate to binding recommendations” and sought input from the parties on what that meant in practical terms. The Tribunal noted the original remedies hearing which culminated in the Remedies Report had restricted itself to claims pre-1865, and queried whether that decision could stand given the nature of its task. A similar question was posed around past decisions on interested party status, and whether that status was sufficient to enable claimants to put their position forward. In that regard, the Tribunal noted that it had applications from several parties for interested party status. Five plainly met the requirements of the Act in that their interest in the proceedings was above that of the general public.10 Interested party status was granted. Further, and importantly, the Tribunal flagged the issue of competing and overlapping claims and sought input on which of these claims needed to be considered, and what further evidence would be required.
[17] As part of its response to this Memorandum, the Crown contended that, contrary to the Tribunal’s initial view, the new panel was not a continuation of the Muriwhenua Tribunal but must be seen as a new panel conducting a new inquiry. The first issue of whether the claim was well-founded, which had been the finding of the Muriwhenua Land Report, therefore needed to be determined by this panel. Ngāti
8 Wai 45, #2.594, Directions Concerning a Judicial Conference on the Rehearing, 1 September 2017.
9 At 2.
10 Sections 8C(1)(d) and 8HD(1)(d).
Kahu disagreed, contending for a limited hearing which in effect proceeded from a starting point of all past decisions, and involved only revisiting the narrow issue of binding recommendations. Other parties who were not part of the original claimants, some of who had interested party status, supported the Crown, seemingly in anticipation that they could become claimants to a broadened inquiry.
[18]The Tribunal concluded that:11
(a)the Crown was correct that it was a new inquiry and not a replacement panel or the continuation of the Muriwhenua Tribunal;
(b)the Tribunal could however accept the findings and decisions of the Muriwhenua Tribunal up to the point where Ngāti Kahu sought binding recommendations in 2007; in this regard, the Tribunal considered the record was adequate and the panel would have the capacity to familiarise itself with that record;
(c)the remedies task now involved deciding between competing and overlapping claims, or at least reaching a view on them such as to enable proper decisions on Ngāti Kahu’s resumption claims; and
(d)the Tribunal would hear from the parties further on the scope of the hearing.
[19] In relation to the fourth bullet point, the Tribunal identified a number of questions which are the subject of Ngāti Kahu’s review proceedings, so it is necessary to detail them:
(a)What has been quashed?
(b)Should the non-applicant parties remain as interested parties? Is that status sufficient to enable their competing claims to be considered?
11 Wai 45, #2.641, Decision on the New Panel’s Capacity to Rehear the Application for Remedies and Consequent Directions, 26 January 2018.
(c)Are there further Ngāti Kahu claims that need to be inquired into? This is the position of the Crown which says post-1865 claims are relevant; Ngāti Kahu wants them to remain separate.
(d)Are there post-1865 claims by other claimants, not yet inquired into, that make claims in relation to the same lands and must they be determined, or can they remain parked?
These judicial review proceedings
[20] Ngāti Kahu are understandably alarmed at the way matters have developed. In 1997 the Muriwhenua Land Report identified their claims (and that of the five iwi together) as well-founded, and that the remedies would likely involve return of some lands. The need for immediate redress was noted. Finally, in 2013 the matter had progressed to a decision on Ngāti Kahu’s claims for binding recommendations. Now in 2017 it was being suggested the resolution of its 2007 application would require re-opening past decisions, reconsidering existing claims and inquiring for the first time into post-1865 claims.
[21]The judicial review proceedings:
(a)challenge the decision of the Chairperson to appoint the panel under the initial panel provisions rather than utilising the replacement provisions;
(b)corresponding with the first point, challenge the conclusion of the Tribunal that it was undertaking a new inquiry;
(c)challenge the decision of the Tribunal that its task was “not restricted to considering what binding recommendations to make in favour of Ngāti Kahu … in relation to Ngāti Kahu’s well-founded pre-1865 claims”; and related to that
(d)challenge the decision of the panel to grant five further parties interested party status.
[22] Although there is a nice legal issue involved in the question of whether it is a new or continuing Tribunal, what really matters is whether that distinction is of relevance. Does the scope of the remedies reconsideration change depending on whether the panel is new or continuing? If not, the issue of the correct appointment route loses any practical import. It is clear there will be a panel, and it will be these four members. Which clause of the Act should be used to make that appointment will be of little consequence if the task is the same either way.
Issue one – Scope of resumed remedies hearing
[23]The reasoning of the Tribunal is captured by this paragraph:12
Counsel for the applicant, Venerable Timoti Flavell and Te Rūnanga-ā-Iwi o Ngāti Kahu, have consistently enjoined this Tribunal to go no wider in any future inquiry than considering what binding recommendations to make in its favour. This submission arises from the applicant’s understandable emphasis on expedition, and on resolving its own claims. However, while consideration of binding recommendations for applicants is no doubt the endpoint of the work of this panel, we cannot go there directly. Apart from the unavoidable exercise of acquainting ourselves with the evidence and findings of the previous panels, we are also bound to consider whether there are other interests in the properties in question that we must take into account. As the Court of Appeal affirmed in its decision on the appeal from the judicial review, “it is the obligation of the Tribunal to decide between competing claims” and ‘use those of its powers best suited to provide a just result between the claimants – one that is “thinks right” – if it is of the view that land should be returned.’ This could theoretically involve making binding recommendations in favour of the applicant in respect of part of the land, while leaving part of it still liable to binding recommendations for other or future applicants. Another discretion available to us is to find that no land should go to the applicant, but that the land should nevertheless remain liable to the Tribunal’s binding recommendations ‘because the land may be subject to other claims making its clearance from liability premature – described by Clifford J as the Tribunal’s fourth option.’ We cannot lawfully limit the exercise of our discretion in the manner sought by counsel for Mr Flavell et al. We must remain open to the possibility of exercising our discretion to protect the interests of those other than the applicants, and that necessitates our forming a view of those other claims. We note that we were always going to have to do this, irrespective of the exigency created by the former panel’s recusal.
12 Wai 45, #2.641, above n 11, at [106] (footnotes omitted).
[24] The starting point for any review of this reasoning must be the actual order of the High Court, confirmed on appeal:13
(a)those parts of the Waitangi Tribunal’s Ngāti Kahu Remedies Report which deal with Ngāti Kahu’s application for binding recommendations are set aside;
(b)the Waitangi Tribunal is to reconsider those aspects of the Ngāti Kahu remedies application which sought binding recommendations, and such reconsideration is only to occur after all appeals from my judgment have been determined.
[25] Given the reference in those orders to parts of the Remedies Report being set aside, it is necessary to look to the Report. The eye is immediately drawn to chapter 6, which is entitled “Should the Tribunal Make Binding Recommendations?” Logically it might be thought it is aspects of that chapter that have been set aside. To provide context, however, it can be noted this chapter follows on from sections detailing the history of the inquiry, and the identification of prejudice suffered by Ngāti Kahu, which was described as significant in scale and impact. The Report records that the Tribunal’s assessment of the scale of the prejudice was common ground between the parties; the disagreement concerned the scope of any relief and how it should be provided.
[26] The Tribunal therefore turned to remedies issues, discussing first the pathways open to Ngāti Kahu for relief, the settlement process that had taken place, and the position of other interested parties. The Tribunal then turned to the binding recommendations application. It was noted that Ngāti Kahu seek the return, by way of binding recommendations, of all resumable property in the remedies claim area, being a total of 6836 ha. Monetary compensation was also sought. At the time of the hearing these lands included land that had been allocated to other iwi through the on-going settlement processes but which was not yet the subject of legislation entrenching the settlements reached. The Report details the extent of overlapping claims to these lands.
13 Flavell v Waitangi Tribunal HC Wellington CIV-2014-485-6385, 24 September 2015 at [3].
[27] When considering whether to make binding recommendations, the Tribunal spent some time on the complexities created by the competing claims previously identified and the fact that some of the lands that were the subject of Ngāti Kahu’s application were already included in settlements reached with other Te Hiku iwi. A detailed analysis of the lands in question followed, followed by a consideration of other relevant issues such as the applicants’ mandate, the impact of the claim on the wider settlement process, the current position of all Te Hiku iwi, and the claims of other interested parties for binding recommendations in relation to the same land. The conclusion was that in all the circumstances binding recommendations in favour of Ngāti Kahu were not warranted.
[28] It has been necessary to provide this overview of the Remedies Report to highlight that implementing the High Court direction to reconsider “those aspects of the Ngāti Kahu remedies application which sought binding recommendations” is not a straight-forward task. An apparently discrete chapter on binding recommendations is the heart of the Report, but a heart that draws considerably on analysis set out elsewhere in the Report. Giving effect to the High Court orders will not necessarily just be a question of severing out isolated aspects.
[29] The task of tackling competing claims would be the task of the Tribunal, whether a new or replacement Tribunal. This reality is clear from the Court of Appeal judgment. On the general issue of the Tribunal’s role in dealing with binding recommendations the Court observed:14
The Tribunal’s concern not to create a fresh set of grievances is justified. Indeed, an irony would result if a binding order of the Tribunal prejudicially affected other claimants or related parties. But it must be inferred from the terms of the Act and the CFAA, construed against the background of the Forest Lands Agreement, that Parliament was confident the Tribunal was best placed to pre-empt that consequence by exercising the additional remedial powers with which it was entrusted. As noted in the long title to the Act, the Tribunal is the expert body appointed “to determine whether certain matters are inconsistent with the principles of the Treaty”. The legislature saw the Tribunal as the appropriate vehicle to carry into effect the purpose of the CFAA amendments to the principle Act and the Forest Lands Agreement: the transfer of Crown forest land to Māori ownership and payment by the Crown to Māori of compensation in the event of successful claims.
14 Attorney-General v Haronga; Flavell v Waitangi Tribunal, above n 3, at [74] (emphasis added). The term CFAA in the passage refers to the Crown Forest Assets Act 1989.
(emphasis added)
[30] It also made clear that the difficulty of the task cannot be a basis for avoiding it:15
… We acknowledge the Tribunal’s observation that, even if its last-resort approach was wrong, “the various uncertainties and difficulties that would result from our exercise of the resumptive power” led it to consider the alternative of non-binding recommendations. …, for the reasons we have earlier outlined in the Haronga appeal, those “various uncertainties and difficulties” are not of themselves a ground for deciding against exercising the resumptive power.
[31] Finally, and emphasising the point in relation to Ngāti Kahu’s claims, the Court stated:16
… On this issue, Dobson J held that, because there was an unusual extent of overlapping interests and the task was immeasurably more complex, the Tribunal was absolved from the obligation to make a recommendation. However, once the Tribunal held the claim met the statutory prerequisites it was required to adopt one of the four available options. To that extent we are satisfied that the Judge erred. The real point is that this error was generated by the Tribunal’s rationalisation of its powers to making binding recommendations as a last resort.
[32] Against that background there can be no doubt that the Tribunal’s assessment of its general task is correct. Its status as a new Tribunal or a replacement Tribunal is irrelevant to the issue. By whatever route the four new members were appointed, the task would be the same.
[33] The misunderstanding underlying the applicants’ case is reflected in its pleading that the Tribunal erred on deciding that its task:
was not restricted to considering what binding recommendations to make in favour of Ngāti Kahu in relation to Ngāti Kahu’s well founded pre-1865 claims.
The Tribunal has not decided that at all. As the Tribunal says in the extract cited, deciding on Ngāti Kahu’s claims is the “endpoint”. Where it differs from the applicants is in its assessment of what is involved in putting itself in a position to make a decision on the application. The Tribunal recognises that there are many
15 At [95].
16 At [93] (footnotes omitted).
considerations at play, and it needs to ensure that it has the necessary information and evidence on them. It is right to do so.
[34] The best argument that can be identified for Ngāti Kahu is that if the Tribunal was in a position to decide on binding recommendations in 2013, why cannot it still do so on the same information but applying the correct principles? The answer must be that it is open to question whether the Tribunal was in that position in 2013 even though it considered it was. Once the adjudicative function is emphasised, and given the permanent effect on others’ claims of binding resolutions, it may be that the Tribunal even at that time needed more information. The position is that the former Tribunal decided against the appropriateness of binding recommendations based not on the merits of the particular claim, but on a broader assessment of the desirability of such orders given the prevailing context. This meant it did not have to decide whether it had sufficient information to actually inquire into the merits of the competing claims. Now required to confront those claims, all the present Tribunal is doing is seeking assistance on what further information is needed to enable that to be done.
[35] The Tribunal has asked for submissions on which of the many considerations it needs to have regard to, and whether in relation to those considerations further evidence is required. It would be premature for a Court to intervene at this point. It is important to recognise that the landscape has changed. As I understand it, a considerable amount of the 6836 ha that were in issue in 2013 are no longer available for resumption due to finalised settlements with the other iwi. Inevitably that also means the ongoing extent of the competing claims of those iwi, if any, will need analysis. It is difficult to know how complex the task may yet prove to be, with the possibility existing that the complexities have been reduced by the other settlements. And it is to be remembered that it will be a common starting point that the claims are well-founded, and the prejudice suffered is significant in scale and impact. Ngāti Kahu may ultimately be correct that the Tribunal can just reconsider, or it may be that further evidence is needed, and other parties need to be heard. That will be for the Tribunal to decide. What must be correct, however, is that the Tribunal needs to consider these issues.
[36] I accordingly conclude that the Tribunal has not erred in the assessment of its task and has rightly rejected Ngāti Kahu’s proposition that the binding recommendations decision can be made on the basis of the existing record without at least an inquiry by the Tribunal into whether more is needed. Properly the Tribunal has asked for submissions on that. The steps the Tribunal has taken would have been necessary had the makeup of the Tribunal remained unchanged from the original Remedies Report. The questions being asked flow from the nature of the task, not the makeup of the Tribunal.
[37] Finally, on this aspect of the case, the challenge to the Tribunal’s decision to grant interested party status to certain groups flowed from the primary submission that the Tribunal was required to retake its decision within an unchanged framework. The rejection of that proposition answers this challenge as well.
Issue two – Was it open to the Chairperson to appoint new members under the replacement rules?
[38]The replacement provisions provide:17
5AA Chairperson may appoint replacement presiding officer
(1)For the purposes of an inquiry into a particular claim or other matter under section 5(1), the Chairperson may appoint another member of the Tribunal or a Judge of the Maori Land Court to replace a presiding officer or former presiding officer holding office under clause 5(1)(a).
(2)Clause 5(2) and (3) applies to a replacement appointment under subclause (1).
5AB Chairperson may appoint replacement member
For the purposes of an inquiry into a particular claim or other matter under section 5(1), the Chairperson may appoint another member of the Tribunal to replace a member or former member holding office under clause 5(1)(b).
5AC Conditions applying to replacement appointments
(1)An appointment made under clause 5AA or clause 5AB may be made before or after the Tribunal has begun to inquire into a particular claim or other matter under section 5(1).
17 Treaty of Waitangi Act 1975, sch 2, cls 5AA-5AC (emphasis added).
(2)The power conferred on the Chairperson by clauses 5AA and 5AB may be exercised only if–
(a)the presiding officer or member holding office under clause 5(1) has ceased to hold office–
(i)as provided for in clause 2; or
(ii)in the case of a Judge of the Maori Land Court, as provided for in section 12 of Te Ture Whenua Maori Act 1993:
(b)the personal circumstances of the presiding officer or member holding office under clause 5(1) make that person unable by reason of his or her physical or mental condition to continue to participate in the inquiry into the particular claim or other matter:
(c)it would be unreasonable to expect the presiding officer or member holding office under clause 5(1) to continue to participate in the inquiry into the particular claim or other matter because of his or her personal circumstances.
(3)If the Tribunal has commenced its inquiry into the particular claim or other matter, the Chairperson must not exercise the power conferred by clause 5AA or clause 5AB unless–
(a)there is an adequate record of the inquiry that has already been heard by the Tribunal; and
(b)it is reasonable to expect the person appointed to the Tribunal under clause 5AA or clause 5AB to review the record of that inquiry.
(4)For the avoidance of doubt, the power conferred by clauses 5AA and 5AB may be exercised even if the relevant circumstance under subclause (2) arose before the commencement of the Treaty of Waitangi Amendment Act 2003.
[39] Clause 5AC(2)(c) has been highlighted as it is the only replacement provision potentially applicable to the situation which confronted the Chairperson. In order to be available, it would need to be that the reason each of the members would not continue to participate was because of a “personal circumstance”. Further, the Chairperson would need to consider that because of that personal circumstance it would be unreasonable to expect each of them to continue sitting. The applicants submit that it is necessary to look at the actual reason for recusal and assess whether that reason is a personal circumstance. The applicants identify Judge Clark’s reason for recusal as being because the Judge saw a risk of unconscious bias. This is submitted to be something personal to Judge Clark and therefore within 5AC(2)(c).
Legislative history
[40] The replacement provisions of the Act were introduced by the Treaty of Waitangi Amendment Act 2003. Concern existed at the time as to the lawfulness of several panels in which there had been changes to membership. The Wellington Tenths Report was due to be released, and this was one of the panels in which over the course of the inquiry there had been significant changes in personnel.18 The Explanatory Note of the relevant Bill observes:19
The practical reason behind these amendments is that the Tribunal is from time to time confronted with the difficulty, particularly in a very long-running inquiry, of a member being no longer able to continue to participate in the inquiry. Without legal authorisation to replace a member in such a circumstance, there is a possibility of having to start an inquiry over again.
Because the Tribunal is bound by the rules of natural justice, the Bill limits the circumstances when the Chairperson may exercise the powers created by these amendments and prescribes certain conditions that must be met.
[41] Of these reforms it can first be observed that they were driven by a desire to ensure that the Tribunal could complete its work in circumstances where the process may often span a number of years or occasionally decades. It is likely that in that time unavailability of initial Tribunal members will arise, and the purpose of the legislation was to alleviate these problems. This would support an expansive approach being given to the personal circumstances.
[42] Second, however, it needs also to be observed that the replacement power does not arise simply on any situation of unavailability. The legislation sets out qualifying circumstances, carrying with them the inevitable inference that not every situation of unavailability will give rise to the ability to replace the Tribunal members.
Reasons for recusal
[43] It is necessary to identify the reason why each of the four Tribunal members is not available to participate in the reconsideration of Ngāti Kahu’s application for binding recommendations. Judge Clark’s reasons can be identified from the reasoned
18 Waitangi Tribunal Report on the Wellington District (Wai 145, 2003).
19 Māori Purposes Bill (No 2) 2002 (205-1) (explanatory note) at 2.
decision he issued.20 The reasons of the other three members are reported in a Memorandum issued by Chief Judge Isaac.21
[44] It is necessary to set out significant extracts from Judge Clark’s reasoning, not only to identify his concerns but also because it seems the other three members collectively decided the Judge’s reasoning applied equally to them. The decision first identifies three bases for Ngāti Kahu’s application: apparent bias, passages in the now quashed Remedies Report that are critical of Ngāti Kahu, and a perception that Judge Clark is unwilling to make binding recommendations.22
[45] Judge Clark next identified and rejected an underlying premise of Ngāti Kahu’s application, namely that as Chair he was the dominant influence responsible for the original decisions:
27.In response, counsel for Ngāti Kahu submitted that the perception on the part of their clients was that I, as the Presiding Officer, had an overarching or dominant role to play in the drafting of The Ngāti Kahu Remedies Report. Nothing could be further from the truth, and such suggestion presupposes those members did not bring an independent mind to the proceedings. In that context the submission is disrespectful to the other members of the panel, all of whom are experts in their field and, in the case of Joanne Morris, an original Muriwhenua panel member and a vastly experienced one at that.
[46] Accepting that aspects of the Remedies Report did contain robust criticisms of Ngāti Kahu’s approach to settlement and redress, the Judge then made a comment about unconscious bias which Ngāti Kahu submit is the reason for recusal:
46.However, we reached our view based upon what we read, heard and saw. As such, it is difficult to reject the possibility that I could be unconsciously biased against the Ngāti Kahu application for binding recommendations. To deny that as a possibility does a disservice to myself, to Ngāti Kahu and the process moving forward.
20 Wai 45, #2.566, above n 6.
21 Wai 45, #2.584, above n 6.
22 At [21]-[23].
[47] Judge Clark dismissed the specific grounds for recusal advanced by Ngāti Kahu, but went on to consider the broader picture:
47.I am conscious of the duty upon a Judge to sit unless they are otherwise disqualified. I am also conscious that if I disqualified myself the institutional knowledge that I have gained as the Presiding Officer is lost to any future panel. Balanced against that however, are two factors which are important in this case. They are that, the people of Ngāti Kahu deserve redress sooner rather than later, and the institutional reputation of the Tribunal.
…
51.If I was to remain as the Presiding Officer that may be seen as a blockage to Ngāti Kahu receiving redress. If I was not to recuse myself, there is a distinct possibility that that decision might be judicially reviewed and subsequently appealed. I consider that it is in the best interests of all concerned that any reconvened remedies hearing commences as soon as possible and that Ngāti Kahu receive redress sooner rather than later. In order to achieve that, the bigger picture may require me to recuse myself from further involvement in this remedies application.
52.The Waitangi Tribunal operates at the interface of Māori aspiration and Crown policy. In contrast to popular belief, the Tribunal is not a body which simply acquiesces to every claim. In the current climate the Tribunal is required to decide difficult, complex and challenging matters that involve proposed Treaty settlements, contemporary claims for natural resources and kaupapa inquiries. As such the Tribunal operates right on the cusp of politics and law. All participants must therefore have confidence in the Tribunal and its processes.
53.In the context of applications for binding remedies, there must be confidence that Tribunal members will make decisions impartially and not decisions which suit a Crown settlement agenda. Rightly or wrongly there is a perception that I am reluctant to grant binding recommendations, which suits current Crown settlement policy. I deny that. What is more important however, moving into any reconvened hearing, is that there is confidence in the impartiality of the Tribunal and that its institutional reputation remains intact. If, for any reason, my on-going involvement in this remedies application impacts upon the institutional reputation of the Tribunal, I should recuse myself.
[48] In my view it is clear that the last passages represent the reason for recusal. The earlier acknowledgement of unconscious bias is nothing more than acknowledgement of a status that some would argue exists in all decision makers who are therefore urged, as Judge Clark has done, to recognise its existence so as to be better able to resist it. It is not the reason for recusal, which is rather an assessment
that somehow by not being there Judge Clark will improve the prospects of the ultimate remedies decision being accepted.
[49] Turning then to the other members, their reasoning is disclosed by Chief Judge Isaac when appointing the new panel members.23 Recalling that cl 5AC(2)(c) requires the Chief Judge to accept that the “personal circumstance” makes it unreasonable to expect the member to continue to participate, it is convenient to cite more fully the Chief Judge’s observations:
6.All three panel members, having read the decision of Judge Clark, advised me that in light of his decision that he should recuse himself, they had reached the conclusion that it was incumbent on them to also recuse themselves from continuing to sit on this inquiry. Their view is that, as all of the decisions made in the course of the inquiry into Ngāti Kahu’s claim were made by the panel collectively, if circumstances existed arising from those decisions that warranted Judge Clark’s recusal, they necessarily also required the recusal of the rest of the Tribunal panel. This decision, of course, vindicates Judge Clark’s finding that the position taken by Ngāti Kahu that decisions of the Tribunal could be attributed to the judge solely was fundamentally flawed.
7.A decision as to recusal is ultimately up to each individual Judge and panel member to make, and as Chairperson I have no choice but to accept the conclusion reached by Judge Clark and his panel that circumstances exist requiring their recusal. However, I note for the record my concern at this outcome. The position of the claimants that the Presiding Officer, and by extension the full Muriwhenua panel, would not be able to bring an impartial mind to the reconsideration of their claim for binding recommendations risks setting a precedent that, wherever a Tribunal panel reconvenes to reconsider an earlier decision, grounds exist for their recusal. This is not the case, and is completely rejected by me.
8.Tribunal members are required to and do bring an expert, independent and impartial mind to the hearing of all claims before them, including the reconsideration of earlier decisions upon a successful judicial review. As the Crown correctly noted in its submissions, and reiterated in subsequent submissions following Judge Clark’s recusal (Wai 45, #2.573), Ngāti Kahu’s primary complaint is that the Tribunal panel did not make binding recommendations in their favour in their first report, prior to the review and direction of the High Court and Court of Appeal, a matter which should only be considered grounds for recusal in the rarest of circumstances.
9.I note that the decisions of Judge Clark and the panel members arise more from practical circumstances that follow from the claimants’ position (including the possibility of further judicial review
23 Wai 45, #2.584, above n 6.
proceedings, which would delay the reconsideration of the Tribunal’s report and, ultimately, the provision of redress to Ngāti Kahu for their well-founded Treaty claims), than from any real possibility that they would not be able to undertake a rigorous and impartial reconsideration of the Ngāti Kahu claim for remedies. That this was the case is not only regrettable, but in my view verges on being improper.
Decision
[50] Recusal is traditionally seen as falling within the domain of the Judge in question. Hammond notes this to be the standard position throughout the Commonwealth.24 Inconsistent with this position, cl 5AC(2)(c) confers a final decision-making power on the Chairperson to decide whether the member will continue to sit. This fact alone suggests that the clause does not cover an unavailability due to a member’s recusal.
[51] That this might identify a gap in the legislation, as the applicants submit, is not of significance. First, recusal is rare. Second, it is plain that the legislation was not intended to allow replacements whenever there was unavailability for any reason. Specific qualifying reasons are identified, thereby necessarily implying some situations will fall outside it.
[52] If wrong about the inapplicability of recusal to this replacement power, I consider that on the facts of this case the clause is anyway plainly inapplicable. The reasons for recusal given by the Tribunal members are not personal circumstances; they are institutional reasons. The very fact that all four members have recused themselves for the same reason tells against the reason being a personal circumstance.
[53] Finally, I consider from the Chief Judge’s comments that it is clear he does not consider it reasonable for the members to be unavailable. Rather, the Chief Judge considered he had “no choice” but to accept the unavailability because the members had recused themselves. This reflects the points made earlier that recusal lies within the sole provenance of the judicial officer, and cl 5AC(2)(c) is therefore incompatible with recusal.
24 Grant Hammond Judicial Recusal: Principles, Process and Problems (Hart Publishing, Oxford, 2009) at 42.
[54] Given these conclusions it is not necessary to comment further on the scope of personal circumstances. I accept a purposive approach would suggest a generous interpretation is appropriate. However, for the reasons given, the difficulty presented by a recusal decision is more fundamental and cannot be overcome by a broad interpretative approach to the meaning of personal circumstance.
[55]To address specifically the various judicial review challenges under this issue:
(a)The Chairperson did not err in law in appointing the current panel under cl 5(1) of the Second Schedule.
(b)The replacement provisions were not available in the circumstances under which the four members of the panel became unavailable.
(c)The present Tribunal did not err in assessing its status as being a new Tribunal.
(d)I do not comment in depth on whether the parties should have been heard at the time, or whether fuller reasons were needed. Normally the appointment of a panel is a matter for the Chairperson and input from the parties is inappropriate. I agree that in the very unusual situation here there was scope to hear from the parties on the implications of all members of the panel recusing themselves, but it is so unusual a situation that further comment on possible process is unnecessary.
Conclusion
[56]The applications for review are dismissed.
[57] Memoranda as to costs may be filed if necessary. I observe that I see no reason why the normal rule should not apply. Concerning the intervenor, and intending no criticism, the third respondent had carriage of the defence and did not need assistance. I suggest that between the applicants and the intervenor costs lie where they fall, but it is open to the parties to submit otherwise.
Simon France J
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