Ng�ti Wh�tua Or�kei Trust v Attorney-General
[2023] NZHC 74
•3 February 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2033
[2023] NZHC 74
UNDER the Judicature Amendment Act 1972 and Part 30 of the High Court Rules BETWEEN
NGĀTI WHĀTUA ORĀKEI TRUST
Plaintiff
AND
ATTORNEY-GENERAL
First Defendant
Hearing: On the papers with written submissions on 12, 21 and 28 July 2022, 9, 19 and 30 August 2022 and 20 and 25 January 2023 Appearances:
J E Hodder KC and J W J Graham for the plaintiff and Te Runanga o Ngāti Whātua and Ngāti Whātua o Kaipara, interested parties
D A Ward and Y Moinfar-Yong for the first defendant P F Majurey for the second defendant
R A Siciliano for Ngāi Tai ki Tāmaki Trust, interested party
N R Coates for Te Ākitai Waiohua Settlement Trust, interested party
M K Mahuika, T N Hauraki and C Conroy-Mosdell for Ngāti Pāoa Iwi Trust, interested party
T D Smith and R L Goss for Ngāti Kuri Trust Board and Ngāi Te Rangi Settlement Trust, interveners
Judgment:
3 February 2023
JUDGMENT No 5 OF PALMER J
This judgment was delivered by me on Friday 3 February 2023 at 10 am.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
NGĀTI WHĀTUA ORĀKEI TRUST v ATTORNEY-GENERAL [2023] NZHC 74 [3 February 2023]
AND MARUTŪĀHU RŌPŪ LIMITED PARTNERSHIP
Second Defendant
TE RŪNANGA O NGĀTI WHATUA
Interested partyNGĀTI WHĀTUA O KAIPARA
Interested partyNGĀTI PĀOA IWI TRUST
Interested partyNGĀI TAI KI TĀMAKI TRUST
Interested partyTE ĀKITAI WAIOHUA SETTLEMENT TRUST
Interested party
NGĀTI KURI TRUST BOARD
IntervenerNGĀI TE RANGI SETTLEMENT TRUST
Intervener
Summary
[1] In the substantive judgment in these proceedings, issued on 28 April 2022, I declined to issue the declarations sought by Ngāti Whātua Ōrākei but indicated what declarations I was inclined to make.1 I reserved leave to the parties, interested parties and interveners to make submissions on those declarations and, subsequently, on the implications of the Supreme Court’s judgment in Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd.2
Declarations about ahi kā and mana whenua in Tāmaki Makaurau
[2] Proposed declaration (a) is to the effect that Ngāti Whātua Ōrākei currently have ahi kā and mana whenua in central Tāmaki Makaurau, based on take raupatu and ahi kā, with all the obligations at tikanga that go with that, according to the tikanga and historical tribal narrative and tradition of Ngāti Whātua Ōrākei. The evidence demonstrates that. The reasons to issue that declaration still stand. Ngāti Whātua Ōrākei seeks a declaration of their rights at tikanga and law. A declaration clearly has utility to them. No one has identified any other proceedings or legislation that such a declaration would cut across. It does not impinge on others’ existing legal property rights.
[3] I do not consider that declaration should be expanded as proposed by Ngāti Whātua Ōrākei to refer to tikanga of other iwi. The terms of the substantive judgment make clear that the tikanga of Ngāti Whātua Ōrākei is not an outlier or uniquely individual across all iwi in Aotearoa. A declaration about the extent to which it is shared by other iwi who are not part of these proceedings is neither necessary nor desirable.
[4] Proposed declaration (b) is to the effect that the tikanga and historical tribal narratives and traditions of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do not currently recognise that Ngāti Whātua Ōrākei
1 Ngāti Whātua Ōrākei v Attorney-General (No 4) [2022] NZHC 843 [Substantive Judgment]. Corrected versions of the judgment were subsequently issued in May and July 2022, correcting slips. The final version of the judgment is that posted on the Ministry of Justice’s Judicial Decisions Online website and is being reported at Ngāti Whātua Ōrākei v Attorney-General [2022] 3 NZLR 601.
2 Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142.
have ahi kā and mana whenua, as those concepts are conceived of by Ngāti Whātua Ōrākei, in central Tāmaki Makaurau. I consider, for the reasons I gave in the substantive judgment, that declaration (a) should be accompanied by declaration (b). This declaration does not pronounce on what is the tikanga of Marutūāhu, Ngāi Tai ki Tāmaki or Te Ākitai Waiohua (referred to in the proceedings as Te Toru), as the terms of the declaration make clear. They did not seek that the Court should do so. But it does make clear that their tikanga and historical tribal narratives and traditions do not accord with those of Ngāti Whātua Ōrākei. I accepted the evidence of Harry Mikaere, James Brown, David Wilson Takaanini and Dr Korohere Ngāpō to that effect. Declaration (b) clarifies the declaratory relief granted to Ngāti Whātua Ōrākei in respect of key issues in the proceedings.
[5] It is clear from the substantive judgment that Te Toru did not seek to establish that they themselves currently have or share ahi kā and mana whenua, as Ngāti Whātua Ōrākei conceive of those concepts, in the same area as Ngāti Whātua Ōrākei. I do not consider there is utility in saying that in the declaration. Neither do I propose to make a further declaration sought by Ngāti Pāoa Iwi Trust (Ngāti Pāoa), whose position in relation to the mana whenua of Ngāti Whātua Ōrākei is made admirably clear in the Kawenata Tapu and Conciliation Agreement between those iwi, as recorded in the substantive judgment.
Declarations about tikanga obligations in settling Treaty claims in Tāmaki Makaurau
[6] I also confirm the inclination I expressed in the substantive judgment that the judgment speaks for itself regarding the legal obligations of the Crown and iwi and hapū in relation to tikanga in the context of Treaty of Waitangi settlements. There would be little utility in making declarations based on those findings. In particular:
(a)There is little or no support from the parties and interested parties for the element of the identified declaration regarding the obligations of iwi and hapū under the Treaty of Waitangi. It is also a generic, uncertain and contingent statement. It says only what the Treaty may require, depending on context.
(b)It follows from the reasoning in the judgment that I regard the following to be an accurate statement:3
… the Crown will need to take reasonable steps to understand, recognise and respect the tikanga of iwi or hapū, and the Crown will need to actively protect the ability of iwi and hapū to exercise their tikanga.
But the level of abstraction and context-dependent nature of the identified declaration significantly reduces its utility as a declaration of law.
[7] I also do not propose to make the declaration proposed by Ngāti Kuri and Ngāi Te Rangi that the Crown’s policy in the Red Book is unlawful. It is clear from the substantive judgment that the Red Book is incomplete in not explicitly acknowledging the legal requirement on the Crown to consider tikanga. The statements of policies in the Red Book are important to those involved in Treaty settlement negotiations. Failing to update the Red Book therefore might even, arguably, be considered unreasonable. But the criticisms of the Red Book contained in the substantive judgment do not, quite, amount to a finding that the policy in the Red Book is unlawful. Accordingly, the proposed declaration does not properly reflect the judgment. In any case, the Crown assures the Court that it is reviewing the implications of the substantive judgment for the Red Book policies.
Result
[8]I make the following declarations:
(a) Ngāti Whātua Ōrākei currently have ahi kā and mana whenua in relation to the area identified in Map 1 of the substantive judgment of 28 April 2022 in central Tāmaki Makaurau, with all the obligations at tikanga that go with that, according to the tikanga and historical tribal narrative and tradition of Ngāti Whātua Ōrākei.
3 Substantive Judgment, above n 1, at [646].
(b) The tikanga and historical tribal narratives and traditions of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do not currently recognise that Ngāti Whātua Ōrākei have ahi kā and mana whenua, as those concepts are conceived of by Ngāti Whātua Ōrākei, in relation to the area identified in Map 1 of the judgment of 28 April 2022 in central Tāmaki Makaurau.
[9] I also make timetabling directions, if any of the parties wish to seek costs, despite my preliminary inclination that they should lie where they fall.
The substantive judgment
[10]The summary of the result of the substantive judgment was:
[79] I decline to make the declarations as sought by Ngāti Whātua Ōrākei. I reserve leave for any of the parties or interested parties, if they wish:
(a)to make submissions on whether the Court should make a declaration along the lines that:
Ngāti Whātua Ōrākei currently have ahi kā and mana whenua in relation to the area identified in Map 1 of this judgment in central Tāmaki Makaurau, with all the obligations at tikanga that go with that, according to the tikanga and historical tribal narrative and tradition of Ngāti Whātua Ōrākei.
(b)to make submissions on whether the Court should make a declaration along the lines that:
The tikanga and historical tribal narratives and traditions of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do not currently recognise that Ngāti Whātua Ōrākei have ahi kā and mana whenua, as those concepts are conceived of by Ngāti Whātua Ōrākei, in relation to the area identified in Map 1 of this judgment in central Tāmaki Makaurau.
(c)to make submissions on whether the Court should make any alternative declarations about legal obligations in relation to tikanga in the context of Treaty settlements, along the lines that:
The duties of active protection of tikanga and of acting reasonably and in good faith, with mutual cooperation and trust in relation to tikanga, will bear on Crown decisions affecting tikanga interests in a Treaty settlement context.
Accordingly, depending on the context, the Crown will need to take reasonable steps to understand, recognise and respect the tikanga of iwi or hapū, and the Crown will need to actively protect the ability of iwi and hapū to exercise their tikanga.
Depending on the context, the Treaty of Waitangi may also require iwi and hapū to engage in tikanga-consistent processes with other iwi and hapū about the status of relevant properties at tikanga.
(d)to apply jointly for the Court’s assistance to facilitate a tikanga- based resolution process to address any of the disputed issues of applying tikanga canvassed in this judgment or to apply jointly for a declaration by the Court to reflect a joint position about any of these disputed issues, reached by a tikanga-consistent process.
[80] Any of the further submissions should be filed and served within three months of the date of this judgment. I reserve leave for any of the parties or interested parties to request a teleconference to discuss any issues arising before that. There is no time limit on the leave reserved to seek Court assistance. Costs are reserved.
[81] I close this judgment by quoting the Waitangi Tribunal in the Ngāti Awa Raupatu Report:4
In seeking solutions, it is important to bear in mind that Māori society is fundamentally about relationships. It is not enough to resolve the immediate problem. The people must continue to live together, and the more important task is to rebuild the relationships based upon whakapapa and respect for the mana of each group.
[11] Ngāti Whātua Ōrākei also records their appreciation of the Court’s willingess to provide asstance to facilitate a tikanga-based resolution process with the parties. Ngāti Whātua Ōrākei has indicated to the other parties their willingness to participate in a tikanga-based resolution process with the other parties. They will update the Court once discussions with the other parties have progressed.
[12] The parties, the interested parties and interveners made submissions on the declarations. I outline the submissions in relation to each of the declarations. The Crown and Te Toru also sought to make submissions on the implications of the Supreme Court’s judgment in Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd.5 Ngāti Whātua Ōrākei, Ngāti Pāoa, Ngāi Te Rangi and Ngāti Kuri all sought to reply. They have all done so, with leave.
4 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Ngāti Awa Raupatu Report
(Wai 46, 1999) at 136.
5 Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd, above n 2.
[13] In Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd, the Supreme Court was concerned with the relationship between tikanga, including mana whenua (but not overlapping claims to mana whenua), to the powers of the Waitangi Tribunal under the Treaty of Waitangi Act 1975. The supplementary submissions all note that the context of that case is quite different to these proceedings. These proceedings have considered extensive expert evidence about the respective tikanga of various iwi in Tāmaki Makaurau, including in relation to mana whenua, and their relevance to obligations in a Treaty of Waitangi settlement context. The supplementary submissions suggest that the Supreme Court’s judgment in Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd either supports their submissions about declarations here, or lacks relevance and does not meaningfully assist the Court.
[14] I have taken those submissions, and the Supreme Court’s judgment, into account in this judgment. I consider that the Supreme Court’s general observations in Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd about tikanga, including mana whenua, are generally consistent with those in the substantive judgment in these proceedings. No one suggested otherwise. But whether they are or not, and what that means, is a matter for the appeal of the substantive judgment. I do not consider the Supreme Court’s judgment materially impacts on the issues I have to decide in this judgment, which concern relief based on the findings in the substantive judgment in these proceedings.
Approach to declaratory relief
[15]In relation to tikanga, in the substantive judgment, I held:
[366] Because tikanga is law, iwi and hapū may seek legal remedies relying on recognition of tikanga by the courts in particular cases. They may assert their customary rights and seek declarations accordingly. That is what Ngāti Whātua Ōrākei does here, as the Supreme Court ruled they could.6 I accept Mr Hodder’s submission for Ngāti Whātua Ōrākei that the Court’s declaratory jurisdiction is able to include the making of formal declarations of legal status and rights, including customary rights, and of corresponding obligations.
[16]In relation to declaratory relief in general, I said:
6 Ngāti Whātua Ōrākei Trust v Attorney General [2018] NZSC 84, [2019] 1 NZLR 116 [Ngāti Whātua Ōrākei (SC)] at [52]–[53].
[451] The Woolfs’ authoritative text on The Declaratory Judgment explains that “[a] declaratory judgment is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs”.7 Declarations are a well-established form of relief in the common law and are now a routine remedy in judicial review. As Elias CJ said in the Supreme Court in these proceedings in 2018, “[w]here claims of right or legal interest are made in our constitutional order, it is the function of the courts to determine them.”8 The majority stated that:9
It is common ground that the function of the courts includes making declarations as to rights. Nor is there any dispute that it may be possible for Ngāti Whātua Ōrākei to advance a claim in relation to customary rights.
[452] The majority said “it must be open to Ngāti Whātua Ōrākei to seek to clarify its status in the area over which it claims rights short of a challenge to the particular decisions to transfer the specified properties”.10
[453] Declarations of right became a more common remedy in English courts from the mid-19th century.11 They were originally a private law remedy in the Court’s inherent jurisdiction. In New Zealand, the High Court has general equitable jurisdiction to make declarations.12 That may be an apposite source of authority for declarations of legal rights at tikanga, if a source needs to be identified. The Court also has supervisory jurisdiction under the common law, and under s 16(1)(b) of the Judicial Review Procedure Act 2016, to grant declaratory relief in judicial review proceedings. That is also relevant here; these are judicial review proceedings in form. And the Court has jurisdiction under the Declaratory Judgments Act 1908 in relation to the interpretation or validity of statutes or other instruments, though that may not be so relevant to matters of pure tikanga.
[454] The Court’s power to grant a declaration as a remedy is discretionary. It is well-established in the law of judicial review that “courts today will generally consider it appropriate to grant some form of relief where they find reviewable error”.13 A declaration will not usually be made where it lacks utility. But declarations vindicate rights and bind the parties by preventing them from relitigating the same issues.
7 Lord Woolf and Jeremy Woolf The Declaratory Judgment (4th ed, Sweet & Maxwell, London, 2011) [Woolf and Woolf The Declaratory Judgment] at [1–02].
8 Ngāti Whātua Ōrākei (SC), above n 6, at [78].
9 At [34].
10 At [53].
11 Woolf and Woolf The Declaratory Judgment, above n 7, at [2–01].
12 Association of Dispensing Opticians of NZ Inc v Opticians Board [2000] 1 NZLR 423 (HC) at [10]. See generally Rachael Schmidt-McLeave “Declaratory Relief” in Sir Peter Blanchard (ed) Civil Remedies in New Zealand (2nd ed, Thomson Reuters, Wellington, 2012).
13 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112] per Elias CJ and Arnold J.
Declarations about ahi kā and mana whenua in Tāmaki Makaurau
The substantive judgment
[17] In the substantive judgment, my reasoning about whether to make declarations about ahi kā and mana whenua in Tāmaki Makaurau was:14
[458] In Part V of the judgment, I traversed the nature of tikanga as a free- standing legal framework recognised in New Zealand law. Tikanga is often assumed, recognised and referred to by New Zealand legislation. Tikanga was recognised by English common law that accompanied the Crown to New Zealand. It is recognised by New Zealand common law today. It can determine the outcome of a court’s application of a statute or the common law. It can be a direct source of legal rights. The Court can make declarations about tikanga, where that is appropriate.
[459] In Part V, I also outlined my conclusions about the Court’s role regarding tikanga. Tikanga-consistent dispute resolution process must be preferred to non-tikanga consistent court resolution of disputes about tikanga. But it follows from tikanga being part of New Zealand law that, if tikanga-consistent resolution of a dispute about tikanga is not feasible, then recourse to a court may be appropriate as a matter of law. It would be a brave court that attempts to reconcile or prioritise tikanga that truly differs between iwi or hapū, especially if that reconciliation is not tikanga-based. An attempt to do so may well not be accepted by those who follow tikanga. It may not be tika. There may be a variety of different ways by which a court could seek to resolve a dispute over tikanga that are more consistent with tikanga. I also accepted that the Court’s declaratory jurisdiction is able to include the making of formal declarations of legal status and rights, including customary rights, and of corresponding obligations.
[460] From one perspective, the lack of external recognition of, and respect for, their mana whenua is one of the reasons why Ngāti Whātua Ōrākei sought a declaration from the Court. From another perspective, such a lack of recognition and respect means a declaration is not justified at tikanga. From yet another perspective, perhaps closest to the conclusions I have come to, Ngāti Whātua Ōrākei simultaneously has mana whenua from some perspectives, and not from others.
[461] It will be clear from my analysis above that I am satisfied the evidence demonstrates that Ngāti Whātua Ōrākei has mana whenua based on take raupatu and ahi kā over the area in which they claim it, according to their own tikanga and based on their tribal historical narrative and tradition. Ngāti Whātua Ōrākei seeks a declaration of its rights at tikanga and law. The issues have been sufficiently traversed to support that. I would be inclined to make such a declaration on the basis that it speaks only of the tikanga and historical tribal narrative and traditions of Ngāti Whātua Ōrākei. My preliminary view is that such a declaration would not unduly cut across other proceedings or legislation, which decide different issues. Such a declaration might be worded as follows:
14 Footnotes omitted.
Ngāti Whātua Ōrākei currently have ahi kā and mana whenua in relation to the area identified in Map 1 of this judgment in central Tāmaki Makaurau, with all the obligations at tikanga that go with that, according to the tikanga and historical tribal narrative and tradition of Ngāti Whātua Ōrākei.
[462] That is not what Ngāti Whātua Ōrākei sought, though Mr Hodder suggested that Ngāti Whātua Ōrākei might regard such a declaration founded on the tikanga of Ngāti Whātua Ōrākei as helpful. So I reserve leave for the parties, and particularly Ngāti Whātua Ōrākei, to make further submissions, if they wish, on whether the Court should exercise its discretion to make a declaration in those or similar terms.
[463] Marutūāhu Rōpū, Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do not seek declarations regarding their tikanga. They oppose the declaration sought by Ngāti Whātua Ōrākei that goes further than the tikanga of Ngāti Whātua Ōrākei. I am satisfied, on the basis of the evidence I have heard, that Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te Ākitai Waiohua do not accept, based on their tikanga and tribal histories and traditions, that their interests in Tāmaki Makaurau are subject or inferior to the mana whenua of Ngāti Whātua Ōrākei. On that basis, I am not prepared to make a declaration that suggests their tikanga, tribal histories and traditions are consistent with those of Ngāti Whātua Ōrākei, which might be inferred from the declaration sought by Ngāti Whātua Ōrākei.
[464] I also do not consider that Ngāti Whātua Ōrākei and the opposing iwi have yet exhausted the possibility of tikanga-based resolution about the differences between them over mana whenua, if it can be exhausted. Trial by battle (of lawyers) is not necessary. The Court should not intervene by making declarations that go further than the tikanga of Ngāti Whātua Ōrākei for that reason as well. But the parties may consider that a single declaration about the tikanga of Ngāti Whātua Ōrākei leaves too much room open for inferences about their positions.
Submissions of plaintiff and supporters
[18] Mr Hodder KC, for Ngāti Whātua Ōrākei, submits that the wording of declaration (a) proposed by the Court might be extended as underlined:
(a)Ngāti Whātua Ōrākei currently have ahi kā and mana whenua in relation to the area identified in Map 1 of this judgment in central Tāmaki Makaurau, with all the obligations at tikanga that go with that, according to principles of tikanga common to many, but not
necessarily all, iwi, and to the tikanga and historical tribal narrative and tradition of Ngāti Whātua Ōrākei.
[19] He submits this is consistent with the Court’s findings. “Many” is appropriate language given the number of iwi supporting the plaintiff, the terms of treatises on common principles of tikanga and the acknowledgement of Ngāti Whātua Ōrākei by pūkenga for opposing iwi. Otherwise, there is a risk that the approach of Ngāti Whātua
Ōrākei to tikanga may be perceived as an outlier or uniquely individual when that is not the evidence nor the Court’s finding. If the Court does not include the proposed additions, the declaration originally identified by the Court is in accordance with the findings in the judgment and would have a certain value for Ngāti Whātua Ōrākei. The fact Ngāti Whātua Ōrākei has appealed the substantive judgment is no barrier to the Court issuing declarations, which it can make irrespective of whether the parties consent.
[20] Mr Hodder submits declaration (b) should not be made. No declaratory relief was sought by any defendant and interested parties did not plead to the claim. Had such a declaration been sought, it is likely that Ngāti Whātua Ōrākei would have led further evidence and conducted cross-examination differently. Alternatively, if the Court is minded to make declaration (b), it should be further qualified by distinguishing between Ngāti Pāoa and other Marutūāhu iwi as Ngāti Pāoa proposes. It should also be qualified by the addition of the underlined words, to reflect the important fact that opposing iwi did not prove that they themselves have mana whenua and ahi kā in the relevant land:
(b) The tikanga and historical tribal narratives and traditions of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do not currently recognise that Ngāti Whātua Ōrākei have ahi kā and mana whenua, as those concepts are conceived of by Ngāti Whātua Ōrākei, in relation to the area identified in Map 1 of this judgment in central Tāmaki Makaurau, but noting that those parties
did not seek to establish, and have not established in this proceeding,
that they themselves currently have or share ahi kā and mana whenua
in the same area.
[21] Ngāti Pāoa supports the modifications to declaration (a) proposed by Ngāti Whātua Ōrākei or, alternatively, the version originally identified by the Court. Mr Mahuika submits on their behalf that, if declaration (b) is made, either in its current form or with the modifications proposed by Ngāti Whātua Ōrākei, further modifications are necessary to reflect the Court’s findings on Ngāti Pāoa’s distinct position by the addition of the following:
However, the tikanga and historical tribal narratives and traditions of Marutūāhu Rōpū, Ngāti Pāoa and Ngāti Whātua Ōrākei, together with the Kawenata Tapu and Conciliation Agreement between Ngāti Pāoa and Ngāti Whātua Ōrākei, establish that Ngāti Pāoa has significant and extensive interests in Tāmaki Makaurau relative to other Marutūāhu iwi.
[22] If Ngāti Pāoa’s proposed addition is not made, Mr Mahuika submits the declaration should not be made at all. If declaration (b) is not made, a declaration reflecting Ngāti Pāoa’s position, as proposed above, should be made. It does not require any additional legal or factual findings from those in the substantive judgment and the Court is entitled to make the declaration. Otherwise, a possible inference is that the Court made equivalent findings of fact in relation to all Marutūāhu iwi, which is not the case.
Submissions of defendants and supporters
[23]Dr Ward, for the Crown, submits:
(a)There is no utility in the proposed issuing of declarations. Ngāti Whātua Ōrākei has appealed the substantive judgment. It is inappropriate and contradictory to say simultaneously that the High Court is in error and to seek relief based on that judgment prior to appeal.
(b)None of the paragraphs Ngāti Whātua Ōrākei relies upon support the proposition that the Court found mana whenua is generally exclusive except in fringe or contested areas, or by agreement. It is not appropriate for a declaration of legal right to include the Court’s observation that “perhaps” many iwi have particular tikanga, nor to omit material words from the Court’s reasoning. A declaration of general principles of tikanga would present a misleading impression of what the Court considers is a proper understanding of tikanga in Tāmaki Makaurau.
(c)The submission by Ngāti Whātua Ōrākei that the declarations should reflect that other parties did not seek to establish that they share mana whenua and ahi kā is inconsistent with the pleadings. Marutūāhu and Ngāi Tai ki Tāmaki made pleadings about mana whenua and ahi kā, which were contested matters before the Court. Issuing declaration (a) but not declaration (b) would not adequately reflect a material element of the Court’s reasoning and would not accurately reflect the law as
determined by the Court. If declarations are to be issued, declarations
(a) and (b) in their original form should both be issued as mutually connected statements. Declaration (b) is not relief provided to a defendant but a reflection and explanation of the Court’s legal and factual findings.
(d)The declaration proposed by Ngāti Pāoa is not consistent with the judgment and departs from the Court’s conclusions about tikanga in Tāmaki Makaurau. The Court made no finding about conflicting tribal traditions insofar as they relate to the relative tikanga interests of Ngāti Pāoa and other Marutūāhu iwi.
[24] Mr Majurey, Ms Coates and Ms Siciliano, for Marutūāhu Rōpū, Te Ākitai Waiohua Settlement Trust and Ngāi Tai ki Tāmaki Trust (collectively, Te Toru), submit:
(a)It is surprising that Ngāti Whātua Ōrākei seeks declarations, having appealed. They submit that any proposed declarations should now only be made by consent of the parties. If the Court makes declarations, declarations (a) and (b) must be made together, in the form originally identified by the Court.
(b)If declaration (a) is made, declaration (b) should be made as a necessary qualification. Otherwise, as the substantive judgment says, declaration
(a) would provide a misleading impression of what the Court considers is a proper understanding of, or implications of, tikanga in Tāmaki Makaurau.15 The proposed amendments by Ngāti Whātua Ōrākei attempt to relitigate matters.
(c)Ngāti Pāoa have found themselves stranded in “no man’s land” as a result of how they ran their case. There is no finding in the substantive judgment that supports Ngāti Pāoa’s proposed declaration. Te Toru has no issue with declaration (b) being amended to include (rather than
15 Substantive Judgment, above n 1, at [78].
exclude) Ngāti Pāoa. But Ngāti Pāoa considers this would not reflect the findings of the Court and would be contrary to the terms of the Kawenata Tapu and Conciliation Agreement.
Declarations about ahi kā and mana whenua in Tāmaki Makaurau
[25] The substantive judgment contains the High Court’s findings of fact and law in these proceedings. This judgment relates only to what relief should be granted as a result of those findings. Accordingly, I do not revisit the findings in the substantive judgment. Neither is there any legal problem in a party appealing the substantive judgment while making submissions, at my invitation, on relief. Any appeal would then be able to deal with the whole of the High Court’s decision on the proceedings.
[26] I provided the parties and interested parties with the opportunity to make submissions on declarations I was considering making. This is an exercise of the Court’s discretion to grant relief in what are still, formally, judicial review proceedings. I do not require the consent of the parties or interested parties to make declarations.
[27] The reasons to issue a declaration that Ngāti Whātua Ōrākei has mana whenua based on take raupatu and ahi kā over the area in which they claim it, according to their own tikanga and based on their tribal historical narrative and tradition, still stand. The evidence demonstrates that fact. Ngāti Whātua Ōrākei seeks a declaration of their rights at tikanga and law. A declaration clearly has utility to them. No one has identified any other proceedings or legislation that such a declaration would cut across. It does not impinge on others’ existing legal property rights. Other than the additional words proposed by Ngāti Whātua Ōrākei, no one has taken issue with the wording of proposed declaration (a).
[28] I am unconvinced about the need to add the words proposed by Ngāti Whātua Ōrākei. The substantive judgment does not say that the relevant principles of tikanga Ngāti Whātua Ōrākei are “common to many, but not necessarily all, iwi”. The closest it came to that was at paragraphs [425]–[430], which refers to the evidence of Tāmati Kruger, Paul Meredith and Charlie Tawhiao from outside Tāmaki Makaurau, and to
the witnesses and closing submissions of Ngāti Whātua Ōrākei as well as to Sir Hirini Mead’s text, Tikanga Māori.16 I summarised these paragraphs as follows:
[45] I have no doubt that mana whenua, as the strongest “interest” at tikanga in the “heartland” or ūkaipō of an iwi, and central to their identity, is currently a real and robust aspect of the tikanga of Ngāti Whātua Ōrākei and some, perhaps many, but not necessarily all, other iwi. This is consistent with the evidence of the independent pūkenga called by Ngāti Whātua Ōrākei from outside Tāmaki Makaurau: Tāmati Kruger, Paul Meredith and Charlie Tawhiao. The evidence supporting this in terms of the tikanga and tribal narrative and traditions of Ngāti Whātua Ōrākei is given by their own witnesses and is consistent with the published and unpublished writings of the late Professor Sir Hugh Kawharu.
[29] It is clear from this summary, and from the longer passages it summarises, that the evidence of tikanga before me is nuanced. It is not to be quantified or unthinkingly translated from one iwi to another in abstract terms. No iwi other than Ngāti Whātua Ōrākei (and now, perhaps, Ngāti Pāoa) asks me to characterise their tikanga. Accordingly, I do not consider that declaration (a), which focuses on the tikanga and historical tribal narrative and traditions of Ngāti Whātua Ōrākei, should be expanded as proposed by Ngāti Whātua Ōrākei. The terms of the substantive judgment outlined above make clear that their tikanga is not an outlier or uniquely individual across all iwi in Aotearoa. A declaration about the extent to which it is shared by other iwi who are not part of these proceedings is neither necessary nor desirable.
[30] I also consider, for the reasons I gave in the substantive judgment, that declaration (a) should be accompanied by declaration (b). Declaration (b) does not pronounce on what is the tikanga of Marutūāhu, Ngāi Tai ki Tāmaki or Te Ākitai Waiohua, as its terms make clear. They did not seek that the Court should do so. But it does make clear that their tikanga and historical tribal narratives and traditions do not accord with those of Ngāti Whātua Ōrākei.
[31] That has been an important issue in these proceedings. The position of Ngāti Whātua Ōrākei is that they have exclusive ahi kā and mana whenua according to their
16 Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington 2016) at 306–308.
tikanga and tikanga Māori.17 That is the claim that Te Toru met. In the substantive judgment, I was satisfied, on the basis of the evidence, that:18
… Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te Ākitai Waiohua do not accept, based on their tikanga and tribal histories and traditions, that their interests in Tāmaki Makaurau are subject or inferior to the mana whenua of Ngāti Whātua Ōrākei.
[32] I accepted the evidence of Harry Mikaere, James Brown, David Wilson Takaanini and Dr Korohere Ngāpō to that effect.19
[33] I was not prepared to make a declaration suggesting otherwise, which might be inferred from the declaration originally sought by Ngāti Whātua Ōrākei. The Crown, Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te Ākitai Waiohua consider declaration (b) is necessary if declaration (a) is issued. That is because they are mutually connected statements and so as to avoid giving a misleading impression of what the Court considers is a proper understanding of tikanga in Tāmaki Makaurau. I consider it is important to issue declaration (b), to accompany declaration (a), for those reasons. It is not declaratory relief in favour of the defendants and interested parties. It clarifies the declaratory relief granted to Ngāti Whātua Ōrākei in respect of key issues in the proceedings.
[34]I do not consider it is necessary to add the additional wording to declaration
(b) proposed by Ngāti Whātua Ōrākei. It is clear from the judgment that Te Toru did not seek to establish that they themselves currently have or share ahi kā and mana whenua, as Ngāti Whātua Ōrākei conceive of those concepts, in the same area as Ngāti Whātua Ōrākei. I do not consider there is utility in saying that in a formal declaration, even with the qualification “as Ngāti Whātua Ōrākei conceive of those concepts”, which Ngāti Whātua Ōrākei omits. Rather, the key point is those iwi do not currently recognise that Ngāti Whātua Ōrākei have ahi kā and mana whenua as those concepts are conceived of by Ngāti Whātua Ōrākei, in relation to the relevant area. That is all declaration (b) says.
17 Substantive Judgment, above n 1, at [187]–[192].
18 At [463].
19 At [447].
[35]Neither do I propose to make the declaration sought by Ngāti Pāoa:
(a)Ngāti Pāoa was originally a defendant in these proceedings but signed the Kawenata Tapu and Conciliation Agreement with Ngāti Whātua Ōrākei in a tikanga-consistent process.20 They accordingly withdrew their opposition to Ngāti Whātua Ōrākei and supported the declarations sought by Ngāti Whātua Ōrākei to the extent they were consistent with the Kawenata.21 Ngāti Pāoa was granted leave to become an interested party. They opposed the position of Marutūāhu Rōpū which became a defendant by consent, and of which they are usually a part.
(b)However, the managed conflict between Ngāti Pāoa and Marutūāhu Rōpū in these proceedings was not “open warfare” and was not focussed by anyone seeking a declaration as to their relative significance and extent of interests in Tāmaki Makaurau. Accordingly, I did not make a finding about that in the substantive judgment. Indeed, I observed in the substantive judgment at a number of places that more detailed evidence and inquiry would be required to resolve such issues.22
(c)The reason to clarify the positions of the other iwi by making declaration (b), which clarifies the positions of those iwi in relation to the claim of Ngāti Whātua Ōrākei, does not apply to Ngāti Pāoa. Their position is made admirably clear in the Kawenata Tapu and Conciliation Agreement. For that reason, the substantive judgment explicitly notes that I do not consider I need to resolve disputes concerning occupation by Ngāti Pāoa of the area over which Ngāti Whātua Ōrākei claim mana whenua.23 If Ngāti Pāoa wants the Court to issue declarations about the relative significance or extent of its tikanga interests with regard to Marutūāhu, they can pursue that in other proceedings.
20 Substantive Judgment, above n 1, at [86(b)].
21 At [223].
22 At [41], [405]–[406], [421]–[422].
23 At [403]–[404].
Declarations about tikanga obligations in settling Treaty claims in Tāmaki Makaurau
The substantive judgment
[36] In the substantive judgment, in relation to jurisdictional parameters regarding tikanga obligations in settling Treaty claims in Tāmaki Makaurau, I made these points about the parameters of the Court’s jurisdiction:
[564] The parties made submissions about three parameters of the Court’s jurisdiction in relation to the declarations sought concerning the Crown. First, Dr Ward submits Treaty settlements involve difficult and quintessentially political processes requiring compromise on all sides. It is true courts have treated some decisions about Treaty settlements as inappropriate for judicial review, as the Supreme Court stated in Ririnui v Landcorp Farming Ltd.24 But the Court went on to say that does not mean any decision having some Treaty context is inappropriate for judicial review, as the Crown acknowledges.25 The complex multi-faceted nature of Treaty settlements does not necessarily cloak government decisions from the constitutional process of judicial review for unlawfulness or from declarations of legal right.
[565] While the form of these proceedings began as a judicial review, it has become a consideration of the legal status and rights of Ngāti Whātua Ōrākei in relation to tikanga and the application of the Crown’s overlapping interests policy. Accordingly, no specific decision of the Crown in relation to a particular Treaty settlement is susceptible to judicial interference here. The desirability of judges making declaratory orders about complex multi-factored decision-making bears on the exercise of discretion as to whether relief should be granted, rather than whether the Court is able to consider the issues.
[566] Second, I accept Dr Ward’s submission that the Supreme Court’s finding, that Ngāti Whātua Ōrākei cannot challenge the decisions to legislate to transfer particular properties, is important in these proceedings.26 Ngāti Whātua Ōrākei amended their statement of claim accordingly. This judgment does not transgress that finding, or the underlying constitutional principle of non-interference in parliamentary proceedings, clarified by the Supreme Court consistently with constitutional principle. Rather, this judgment discharges “the function of the courts to make declarations as to rights” concerning the “live issues as to the nature and scope of the rights claimed by Ngāti Whātua Ōrākei”.27 I detect little difference between the parties regarding this.
[567] Third, Dr Ward submits the Supreme Court also made clear that Ngāti Whātua Ōrākei would have to establish that the Crown’s overlapping interests policy provides a basis for a reviewable decision.28 He submits that is only available in a narrow range of circumstances, on the basis of cases identified by the Supreme Court. But the primary authority he identifies, Lord Bridge’s
24 Ririnui v Landcorp Farming Ltd, above n 13, at [89].
25 At [90].
26 Ngāti Whātua Ōrākei (SC), above n 6, at [66].
27 At [46] and [48].
28 At [59].
speech in 1985 in Gillick v West Norfolk and Wisbech Area Health Authority, is more in the nature of an understandable caution to courts to use their jurisdiction with restraint.29 As the Woolfs say in their text, The Declaratory Judgment, Lord Bridge and Lord Templeman in Gillick “considered that the court had jurisdiction to correct errors of law in memoranda issued by public bodies even though the bodies were not acting pursuant to a statutory power in issuing the guidance and even though it had no legal force”.30
[568] The jurisdiction to correct errors of law in guidance, and to correct manifestly unreasonable decisions to issue guidance, has also been accepted in other cases in England, though the Woolfs consider the jurisdiction is “probably confined to determining issues of law”.31 Indeed, as Professors Elliot and Varuhas point out, it may be more important for a court to exercise the jurisdiction to review a policy, if many people are likely to rely on a policy containing a legal error.32 In the Treaty context in Ririnui, the New Zealand Supreme Court noted that declaratory relief has been granted even though there is no “decision” directly impacting rights.33
[569] Of more weight is the point made by Elliot and Varuhas that “courts are reluctant to assess the legality of guidance in contexts where determinations as to legality are heavily fact dependent”.34 The related point, made by the majority of a full Court of Appeal in Attorney-General v Refugee Council of New Zealand, is that individual examples of the application of a policy are not the policy itself.35 Here, examination of the illustrative examples adds richer factual context to understanding the Crown’s policy, and how the Crown has understood and applied it in some circumstances; but these points remains valid. They bear particularly on the exercise of the Court’s discretion to grant the relief sought.
[37] After holding that the declarations sought by Ngāti Whātua Ōrākei would not be accurate statements of the law, in relation to declarations about tikanga obligations in settling Treaty claims in Tāmaki Makaurau, I said:
[646] In Part VIII, I have stated a number of aspects of the legal obligations in relation to tikanga in the context of Treaty settlements. I am inclined to consider that it speaks for itself and that there would be little utility in making declarations based on it. However, I have reserved leave for the parties and interested parties to make further submissions on whether the Court should issue alternative declarations in relation to tikanga. It may be that the alternative declarations I have identified have natural corollaries in terms of Treaty settlements that would be suitable alternatives to the declarations sought. Such a declaration might be phrased along the following lines:
29 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL) at 193–194
30 Woolf and Woolf The Declaratory Judgment, above n 7, at 123.
31 At 123.
32 Mark Elliot and Jason Varuhas Administrative Law: Text and Materials (5th ed, Oxford University Press, Oxford, 2017) at 526.
33 Ririnui v Landcorp Farming Ltd, above n 13, at [91(a)].
34 Mark Elliot and Jason Varuhas, above n 32, at 527.
35 Attorney-General v Refugee Council of New Zealand [2003] 2 NZLR 577 (CA) at [30]–[32].
The duties of active protection of tikanga and of acting reasonably and in good faith, with mutual cooperation and trust in relation to tikanga, will bear on Crown decisions affecting tikanga interests in a Treaty settlement context.
Accordingly, depending on the context, the Crown will need to take reasonable steps to understand, recognise and respect the tikanga of iwi or hapū, and the Crown will need to actively protect the ability of iwi and hapū to exercise their tikanga.
Depending on the context, the Treaty of Waitangi may also require iwi and hapū to engage in tikanga-consistent processes with other iwi and hapū about the status of relevant properties at tikanga.
[647] The parties and interested parties seek the opportunity to make submissions on alternative declarations. Perhaps everyone will agree with these(!) Accordingly, I reserve leave for the parties and interested parties to make submissions on whether the Court should make such alternative declarations about legal obligations in relation to tikanga in the context of Treaty settlements, if they wish to do so.
Submissions of plaintiff and supporters
[38] Mr Hodder, for Ngāti Whātua Ōrākei, submits declaration (c) should be made, with modifications to reflect the scope of the Court’s findings, as underlined and struck through:
The duties of active protection of tikanga and of acting reasonably, in
reasonable time, and in good faith, with mutual compromise, cooperation and trust in relation to tikanga, arising under Te Tiriti o Waitangi/ the Treaty of
Waitangi, legislation including settlement legislation, and deeds of settlement, will bear on Crown decisions affecting tikanga interests in a Te Tiriti/Treaty settlement context.
Accordingly, depending on the context, which includes the Crown’s
application of its Overlapping Claims Policy, the Crown will need to take reasonable steps to understand, recognise and respect the tikanga of iwi or hapū, including the implications of mana whenua or other tikanga-based
interests, and the Crown will need to actively protect the ability of iwi and hapū to exercise their tikanga.
Depending on the context, the Treaty of Waitangi may also require iwi andhapū to engage in tikanga-consistent processes with other iwi and hapū about
the status of relevant properties at tikanga.
[39] He submits the changes to the first sentence pick up the temporal context of the Court’s findings, reflect additional findings in the judgment and expressly refer to the source of obligations. The changes to the second sentence pick up the specific context of this proceeding and refer to the Court’s specific finding that the language in the Crown’s Red Book 2021 fails to acknowledge the legal requirement to consider
tikanga.36 Alternatively, the declaration in the form originally identified by the Court would still have value to Ngāti Whātua Ōrākei and other iwi. It would be inappropriate for the declaration not to issue, given the Court’s findings about the unlawfulness of the Crown’s conduct to date.
[40] Mr Smith, for the Ngāti Kuri Trust Board (Ngāti Kuri) and Ngāi Te Rangi Settlement Trust (Ngāi Te Rangi), supports the modifications to declaration (c) proposed by Ngāti Whātua Ōrākei and adopts their submissions or, alternatively, supports a declaration in the form originally identified by the Court. Ngāti Kuri and Ngāi Te Rangi also propose declaration (c) be modified with additional words, or an additional declaration, that the Crown’s policy is unlawful, with or without an elaboration of the reason for it. Mr Smith suggested the following wording:
The Crown’s policy for responding to overlapping interests in the context of Treaty of Waitangi settlement claims, as set out in the Red Book: Ka tika ā muri, ka tika ā mua – Healing the past, building a future (2018 edition, updated in 2021) is unlawful because it does not acknowledge the legal requirement on the Crown to consider tikanga, including the implications of mana whenua or other tikanga-based interests, and that it may not act unreasonably having regard to tikanga, in order to act consistently with the Treaty of Waitangi.
[41] He submits the Court has found that it has jurisdiction to correct errors in policies, the Red Book does not contain a correct statement of law, and the illustrative examples before the Court indicate that failure is having practical consequences on iwi and hapū engaging with the Crown. As the Supreme Court recognised, a challenge to the Crown’s overlapping claims policy was always discernible in the pleading in this case.37 The evidence before the Court established the Crown’s resistance to amending its overlapping claims policy to accurately record its legal obligations in relation to tikanga. There is nothing before the Court to indicate the Crown will voluntarily undertake a further revision.
[42] Mr Mahuika, for Ngāti Pāoa, supports the modifications to declaration (c) proposed by Ngāti Whātua Ōrākei and adopts their submissions, or alternatively
36 See New Zealand Government “Overlapping interests” (21 December 2021); and Office of Treaty Settlements Ka Tika ā Muri, Kā Tika ā Mua: Healing the past, building a future (June 2018) together referred to as the Red Book unless the year is otherwise specified. See also Substantive Judgment, above n 1, at [623].
37 Ngāti Whātua Ōrākei Trust (SC), above n 6, at [50], [57]–[59].
supports a declaration in the form originally identified by the Court. Ngāti Pāoa also supports the additional declaration proposed by Ngāti Kuri and Ngāi Te Rangi and their submissions. Mr Mahuika submits the Court had extensive evidence before it of the factual content of the Crown’s overlapping claims policies. The Crown’s evidence was clear that it makes decisions about redress in accordance with its clearly articulated policy framework. Accordingly, it is critical that the Crown’s policy framework clearly articulates those matters to which this Court has now clarified it must have regard i.e. the tikanga considerations. This is practically important for iwi and hapū. Otherwise, the Crown’s statement of policy does not contain a correct statement of the law relating to the Crown’s legal obligations and cannot be relied on for guidance.
Submissions of defendants and supporters
[43]Dr Ward, for the Crown, submits:
(a)The Crown agrees with the comment in the substantive judgment that the Court was “inclined to consider that [the judgment] speaks for itself and that there would be little utility in making declarations based on it”.38 The judgment sets out the Court’s conclusions about the law in relation to tikanga in detail. A brief three-sentence summary risks presenting an incomplete impression of the Court’s conclusions. If a declaration is to be issued, it is not necessary to go beyond identification of the core principles of active protection and reasonableness and good faith, as the requirements of the principles will vary depending on context.
(b)The Crown opposes the changes proposed by Ngāti Whātua Ōrākei, which are not supported by the judgment. The proposed reference to the sources of obligations presumes, or gives the impression, that the Treaty of Waitangi is directly enforceable in domestic law whereas the Court stressed it was not called upon to consider that issue and did not do so. The Court did not describe settlement legislation or deeds as the
38 Substantive Judgment, above n 1, at [646].
source of a legal duty of active protection. The reasons Ngāti Whātua Ōrākei proposes to strike out words from the declaration originally identified by the Court are points for appeal.
(c)The additional declaration proposed by Ngāti Kuri and Ngāi Te Rangi goes beyond the scope of the leave granted to make further submissions. There is no basis for such a declaration in the judgment. None of the Court’s comments on the either version of the Red Book amount to a finding that the Crown policy is unlawful. The Crown has engaged in good faith with the Iwi Chairs Forum and with iwi to discuss an update to the Policy. Counsel are also instructed that Te Arawhiti officials are “actively reviewing the Court’s judgment and considering its implications for the Crown’s practice and policy in respect of overlapping interests in Treaty settlements”. That includes an expert review of information the Crown holds (including through these proceedings) relating to the tikanga implications of Crown offers to other iwi in Treaty settlement negotiations in Tāmaki Makaurau.
[44] Mr Majurey, Ms Coates and Ms Siciliano, for Te Toru, do not support declaration (c) in its originally identified form or as proposed by others. Ngāti Whātua Ōrākei repeatedly stated it was not making a general challenge to the overlapping claims policy but simply to how it applied to Tāmaki Makaurau. Yet the declaration would apply across the motu when the motu did not participate in the proceeding. The substantive decision speaks for itself and should be read in context and in its entirety.
Declarations about tikanga obligations in settling Treaty claims in Tāmaki Makaurau
[45] First, I consider whether any of the proposed additions to declaration (c) should be made, if such a declaration is to be issued:
(a)I do not consider “in reasonable time” should be added to the declaration. That was a significant aspect of the application of Treaty principles to tikanga in Treaty settlements in the substantive
judgment.39 However, the duties of active protection and of acting reasonably and in good faith are recognised duties under the Treaty of Waitangi. Adding “in reasonable time” at the place proposed would slightly confuse that. In any case, the duty to act reasonably must include the duty to act in reasonable time, so the addition is unnecessary.
(b)I do not consider the addition of “compromise” would properly reflect the reasoning in the substantive judgment.40 The passage Mr Hodder identifies as relevant to this point refers to a submission by Dr Ward, albeit one built upon in the judgment to justify the third element of the declaration to which Ngāti Whātua Ōrākei objects.
(c)I do not consider it would be useful to identify in the declaration the legal sources of the duties. That is canvassed in the judgment and the proposed summary could convey a misleading impression. That is because the legal sources of a Treaty duty are crucially dependent on the context – the relevance and wording of a deed of settlement, settlement legislation, other legislation or indeed simply factual context. For example, the substantive judgment does not consider whether the Treaty of Waitangi gives rise to free-standing legal obligations.41 Rather, in summary, it suggests:
(i)whether the Treaty is incorporated into law by legislation makes little difference in the context of this case due to the principles of statutory interpretation and administrative law (which are canvassed at some length), depending crucially on context;42
39 At [624]–[628].
40 At [606]
41 At [589].
42 At [589]–[596].
(ii)the 2011 Treaty settlement between the Crown and Ngāti Whātua Ōrākei, and the 2012 Act, affirm and reinforce their obligations to act consistently with the Treaty;43 and
(iii)the general context of Treaty relationships and settlement negotiations between the Crown and Ngāti Whātua Ōrākei is sufficient to establish obligations not to act inconsistently with the principles of the Treaty.44
(d)I do not consider it is useful to refer explicitly to the Crown’s application of the overlapping interests policy or the implications of mana whenua or other tikanga-based interests. It is clear from the use of “includes” and “including” in relation to those proposed additions that they are already part of the meaning of the declaration identified in the substantive judgment. I do not consider they add usefully to its content.
[46] Second, Ngāti Whātua Ōrākei opposes the third element of the identified declaration (c), that refers to the possibility that the Treaty of Waitangi may require iwi and hapū to engage in tikanga-consistent processes with other iwi and hapū about the status of relevant properties at tikanga in a Treaty settlement context. Ngāti Pāoa, Ngāti Kuri and Ngāi Te Rangi support the proposed amendments by Ngāti Whātua Ōrākei, though they alternatively support the declaration as identified by the Court. The Crown, Marutūāhu Rōpū, Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua all oppose all of declaration (c). Accordingly, there is little or no support for the third element of the identified declaration. It is also a generic, uncertain and contingent statement. It says only what the Treaty may require, depending on context. The Treaty may not require iwi and hapū to engage in tikanga-consistent processes in some contexts, even if it does in others. And what the Treaty requires is not necessarily currently established to be a legal requirement depending again on context, as explained above. All this confirms my view that the third element of declaration (c) is not usefully issued as part of a declaration in these proceedings.
43 At [631].
44 At [632].
[47] That leaves the first two elements of declaration (c), as originally identified in the substantive judgment. These are that Treaty duties will bear on Crown decisions affecting tikanga interests in a Treaty settlement context and, depending on context, that:45
… the Crown will need to take reasonable steps to understand, recognise and respect the tikanga of iwi or hapū, and the Crown will need to actively protect the ability of iwi and hapū to exercise their tikanga.
[48] It follows from the reasoning in the judgment that I regard this as an accurate statement. But the utility of making it the subject of a Court declaration is less clear. Both elements of the identified declaration are necessarily stated at a high level, and an abstract and generalised level. They are crucially dependent on context, like the third element. The parties have the benefit of the Court’s full reasoning in relation to these points. That involves both legal principle and consideration of the particular context of illustrative examples concerning tikanga and Treaty settlements in Tāmaki Makaurau.46 The latter is probably more useful to the parties and interested parties than the identified declaration (c). The level of abstraction and context-dependent nature of the identified declaration significantly reduces its utility as a declaration of law.
[49] I confirm the preliminary indication I gave in the substantive judgment that the substantive judgment speaks for itself regarding legal obligations in relation to tikanga in the context of Treaty settlements. There would be little utility in making declarations based on those findings.47
[50] Finally, Ngāti Kuri and Ngāi Te Rangi propose that the Court make a declaration that the Crown’s policy in the Red Book is unlawful because it does not acknowledge the legal requirement on the Crown to consider tikanga. Ngāti Pāoa supports this. Ngāti Whātua Ōrākei wishes to tautoko the submission but does not comment on it. The Crown and Te Toru oppose it.
45 At [646].
46 At [630]–[640].
47 At [646].
[51] I do not propose to make this declaration. The declarations originally sought by Ngāti Whātua Ōrākei did not include a declaration that the Crown’s policy is unlawful, though they did include declarations as to what the law requires in the Crown’s application of its overlapping interests policy, which is the approach taken by the substantive judgment. The judgment both commends and criticises aspects of Crown policy and practice and aspects of the Red Book. The primary criticisms are:
(a)The Crown’s failure to adopt a practice or policy of assigning anyone with expertise to understand and advise it on the tikanga implications of its Treaty settlements decisions.48
(b)“[T]he language of the Red Book 2018 is striking in its determined avoidance of references to tikanga and tikanga interests.”49
(c)Most particularly:
[623] The Red Book 2021 pays greater attention to tikanga than did its predecessor. That would not be difficult. But it does not explicitly acknowledge the legal requirement on the Crown to consider tikanga, including the implications of mana whenua or other tikanga-based interests, and that it may not act unreasonably having regard to tikanga, in order to act consistently with the Treaty of Waitangi. As Mr Mahuika submits, the Crown must deliberately turn its mind to tikanga. Ignoring tikanga when it is relevant in a Treaty settlement context would be unlawful. And given the necessary intense focus by officials and Ministers on the settlements at hand at any given time, not spelling out that requirement in the Crown’s policy runs the risk of prejudicing overlapping tikanga interests of iwi and hapū.
(d)And, in relation to tikanga and Treaty settlements in Tāmaki Makaurau:
[637] Fifth, the illustrative examples of the process of settling Treaty claims in Tāmaki Makaurau suggest that the Crown has made efforts to understand the position of iwi and hapū regarding the history, but not the tikanga, of their overlapping interests. Overlapping interests could have been addressed earlier in some of the processes. At times the Crown appears to have been rather quick to require responses from overlapping iwi before reaching for its own unilateral decisions of last resort. The Crown has not sought expert advice from pūkenga to enable it to fully understand and consider the tikanga dimensions of those interests. Accordingly, the Crown has not taken into account a fully informed understanding of the implications of its decisions for
48 At [615].
49 At [621].
the tikanga interests of all iwi and hapū. The Waitangi Tribunal’s Hauraki Report suggests these are not isolated features of Crown Treaty settlement negotiations.
[52] Ngāi Kuri, Ngāi Te Rangi and Ngāti Whātua Ōrākei fairly make the point that the Red Book is not consistent with the findings of law in the substantive judgment. It is clear from the substantive judgment that the advice contained in the Red Book is incomplete in not explicitly acknowledging the legal requirement on the Crown to consider tikanga. And I accept that the Crown’s statements of policies in the Red Book are important to iwi and hapū, and to Crown officials, who are involved in Treaty settlement negotiations. Updating the Red Book might prevent future decision-makers from making unlawful decisions in reliance on incomplete advice. Failing to update the Red Book might even, arguably, therefore be considered unreasonable.
[53] But the criticisms of the Red Book contained in the substantive judgment do not, quite, amount to a finding that the policy in the Red Book is unlawful. Accordingly, the proposed declaration does not properly reflect the judgment. And the Crown assures the Court that it is reviewing the implications of the substantive judgment for the Red Book policies. No doubt that will be carefully scrutinised.
Costs
[54] All parties have had some measure of success in this ground-breaking case with a public interest element. My preliminary inclination is to let costs lie where they fall. If any of the parties wish to seek costs, despite that indication, I make timetabling directions below. I note that the interveners and interested parties were permitted to participate in these proceedings on the basis that they shall neither seek nor be subject to costs.50
50 Ngāti Whātua Ōrākei v Attorney-General HC Auckland CIV-2015-404-2033, 5 August 2019 at [2]; and Ngāti Whātua Ōrākei v Attorney-General [2019] NZHC 2363 at [25].
Result
[55]I make the following declarations:
(a) Ngāti Whātua Ōrākei currently have ahi kā and mana whenua in relation to the area identified in Map 1 of the substantive judgment of 28 April 2022 in central Tāmaki Makaurau, with all the obligations at tikanga that go with that, according to the tikanga and historical tribal narrative and tradition of Ngāti Whātua Ōrākei.
(b)The tikanga and historical tribal narratives and traditions of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do not currently recognise that Ngāti Whātua Ōrākei have ahi kā and mana whenua, as those concepts are conceived of by Ngāti Whātua Ōrākei, in relation to the area identified in Map 1 of the judgment of 28 April 2022 in central Tāmaki Makaurau.
[56] If any of the parties wish to seek costs, despite my preliminary inclination that they should lie where they fall, they should file and serve submissions of nor more than 10 pages within 20 working days of this judgment. Those opposing should file and serve submissions of the same length within 15 working days of that. Those seeking costs may reply in up to five pages within five working days of that.
Palmer J
Counsel/Solicitors:
J E Hodder KC, Wellington Chapman Tripp, Auckland Crown Law, Wellington
Atkins Holm Majurey, Auckland McCaw Lewis, Hamilton
Kahui Legal, Wellington Chapman Tripp, Wellington
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