Ngati Apa Ki Te Waipounamu Trust v Attorney-General
[2003] NZCA 236
•22 October 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA192/02
CA198/02
CA201/02BETWEENNGATI APA KI TE WAIPOUNAMU TRUST
First AppellantANDTE RUNANGA O TOA RANGATIRA INCORPORATED
Second AppellantANDNGATI RARUA IWI TRUST AND ANOTHER
Third Appellant
ANDATTORNEY-GENERAL
First RespondentANDMAORI APPELLATE COURT
Second RespondentANDTE RUNANGA O NGAI TAHU
Third RespondentANDNGATI TAMA MANAWHENUA KI TE TAU IHU TRUST
Fourth RespondentANDTE RUNANGA O NGATI KUIA CHARITABLE TRUST
Fifth Respondent
Hearing:2 and 3 April 2003
Coram:Keith J
Blanchard J
McGrath J
Anderson J
Glazebrook JAppearances: D L Mathieson QC and R D Crosby for Ngati Apa Ki Te Waipounamu Trust
T J Castle and B H M Miller for Ngati Rarua
P B Churchman and B E Ross for Te Runanga O Toa Rangatira Incorporated
J P Ferguson for Ngati Tama Manawhenua Ki Te Tau Ihu Trust and Te Runanga O Ngati Kuia Charitable Trust (leave to withdraw)
M J Doogan and S T A Rasmussen for the Attorney-General
C F Finlayson and R E Brown for Te Runanga O Ngai Tahu
Judgment:22 October 2003
JUDGMENT OF THE COURT DELIVERED BY KEITH J
Table of contents Paragraph No
Tribal boundaries in dispute................................................................................ [1]
The grounds for judicial review.......................................................................... [8]
What is in issue – and what is not..................................................................... [13]
The relevant requirements of natural justice..................................................... [17]The legislative requirements................................................................. [20]
The Treaty of Waitangi......................................................................... [28]
Common law supplementation.............................................................. [34]
The course of the Maori Appellate Court's process.......................................... [40]
Did funding disparity lead to unfairness?......................................................... [62]
Did Ngati Apa people on the West Coast have a
reasonable opportunity to be heard?..................................................... [74]Knowledge of the MAC proceeding...................................................... [79]
The scope of the Ngai Tahu claim......................................................... [85]
The scope of the authority of Te Runanganui....................................... [87]
Summary................................................................................................ [92]
Did Ngati Rarua have a reasonable opportunity to be heard?.......................... [94]
Did Ngati Toa have a reasonable opportunity to be heard?............................ [103]
Conclusion...................................................................................................... [112]
Appendix
ChronologyTribal boundaries in dispute
[1] Three iwi in the northern part of the South Island appeal against a judgment given by France J in the High Court in which she dismissed their applications for judicial review of a decision made by the Maori Appellate Court (MAC) (Ngati Apa Ki Ti Waipounamu Trust v Attorney-General [2003] 1 NZLR 779). They contend that the MAC breached natural justice in reaching that decision which determined tribal ownership and boundaries in that area for the purpose of a claim made by Ngai Tahu, the third respondent, to the Waitangi Tribunal.
[2] The iwi's proceeding concerns the boundaries between them and Ngai Tahu and arises out of claims various South Island iwi have made in the Waitangi Tribunal against the Crown. The Ngai Tahu claim, filed on 26 August 1986, included lands within the 1859 Kaikoura deed of purchase (on the east coast) and the 1860 Arahura deed of purchase (on the west coast). The Kurahaupo Waka Society claims, filed a year after Ngai Tahu’s, also involved land within the areas of the two deeds of purchase. Their counsel was Mr J G Stevens. The Tribunal faced the question : how were those overlapping claims between Maori and Maori to be resolved? On 26 November 1987 it recommended that the MAC be given authority to resolve disputes about overlapping boundaries. The necessary legislation was introduced in May 1988 and enacted on 21 December 1988 as s6A of the Treaty of Waitangi Act 1975.
[3] On 1 May 1989 named individuals through Te Runanganui o te Tau Ihu o te Waka Maui (which had been incorporated in the previous month) and on behalf of nine named tribes filed a claim with the Tribunal. It substantially repeated the Kurahaupo Waka claim and was also signed by Mr Stevens as counsel. Te Runanganui was the major actor on behalf of the northern tribes over the next two years, but, as will appear, the nature of its role is disputed in this litigation.
[4] In exercise of the powers newly conferred on it by s6A, the Tribunal stated a case for the MAC on 17 March 1989. Following substantive hearings in November 1989 and June 1990 the Court made its ruling on 12 November 1990. It ruled favourably to Ngai Tahu. It held that Ngai Tahu “according to customary law principles of ‘take’ and occupation or use had the sole rights of ownership in respect to the lands comprised in both the Arahura and Kaikoura deeds of purchase at the respective dates of those deeds”.
[5] The three iwi have asked the High Court to declare that the MAC’s ruling was invalid because the Court had breached natural justice in making that ruling. They also disagree with the substance of the ruling but that matter is not before us. A fourth iwi, Ngati Tama, supports the challenge in principle but formally abides the Court’s decision. Its counsel was given leave to withdraw. In the High Court Ngati Kuia also supported the issues being advanced by the applicants and Te Atiawa recorded an appearance. In this Court as in the High Court, the Maori Appellate Court, the second respondent, abides the decision of the Court.
[6] The initial application for judicial review brought by Ngati Apa alone was struck out in the High Court. This Court allowed Ngati Apa’s appeal ([2000] 2 NZLR 659). While it ordered the striking out of the prayer in the amended statement of claim which sought the setting aside of the MAC Order, it also ordered that “Ngati Apa may amend its application as it sees fit to incorporate a request for a declaration that the order is invalid on the two grounds set out in the amended statement of claim” (para [85]).
[7] In rejecting a later challenge by Ngai Tahu to the consideration by the Tribunal of the claims of the northern iwi, this Court made it clear, based on what was said in the earlier case, that the consideration could continue although the claims extended to matters that occurred within or with reference to land in Ngai Tahu's takiwa as defined in legislation following the MAC decision (Te Runanga O Ngai Tahu v Waitangi Tribunal [2002] 2 NZLR 179 paras [4]-[8]). We understand that the consolidated "North of the South" hearings continue in the Tribunal.
The grounds for judicial review
[8] The two grounds which the Court ruled in its earlier decision could remain are headed “Procedural Impropriety – unfairly disparate resourcing of the parties”, and “Failure of Natural Justice and Breach of the Duty to Act Fairly”. The particulars supporting the first ground are the unequal resources and therefore preparedness of the iwi before the MAC compared with Ngai Tahu; the lack of Crown historical research before the MAC; the determinative character of the MAC decision; the fact that the case was brought to facilitate the hearing of Ngai Tahu’s claim to the Tribunal; MAC had to satisfy itself as a matter of procedural fairness and natural justice that the Crown had adequately funded all parties to enable the issues to be fairly and properly researched, presented and determined, and the Court had to decline until it was so satisfied; and, in proceeding to adjudicate, MAC acted in a procedurally unfair manner and in breach of natural justice.
[9] On the second, natural justice, ground, Ngati Apa contends that Ngati Apa on the West Coast were not represented before the Court, although their land interests there were at risk; that Ngati Apa generally had not given anyone a mandate to represent them; that the Court took no steps to ensure that Ngati Apa generally or on the West Coast were formally represented; that Ngati Apa on the West Coast believed that a 1948 decision of MAC had resolved issues between Ngai Tahu and them in their favour; that the adverse decision of November 1990 had a permanent effect, obliterating their interests; and that it was particularly important to ensure that Ngati Apa had a reasonable opportunity to be heard given Ngai Tahu’s claim as amended, Ngai Tahu's ability to use existing material and its representation by senior lawyers, and the enormous importance of the determination for Ngati Apa on the West Coast and other iwi at the top of the South Island.
[10] Ngati Rarua’s statement of claim, filed after this Court’s decision and before the resumed hearing in the High Court, sets out the particulars in support of the same two grounds in essentially the same terms except that it does not mention the 1948 decision.
[11] Ngati Toa’s statement of claim, also filed in the same period, does not plead in respect of the second ground that it was not represented or that the Court failed to take steps to ensure that it was represented; as the record shows, it was separately represented at the critical hearings of the MAC in November 1989 and June 1990. Rather, its pleading is that the Court took inadequate steps to ensure that all iwi who might be affected had adequate and sufficient time for preparation for the hearing; that it took no steps to ensure that Ngati Toa had had the opportunity to be fully and properly legally advised and assisted in making their case, particularly given that Ngai Tahu had and did receive the benefit of publicly funded and extensive legal assistance; and that the MAC should not have come to determinations based on inadequate or unbalanced evidence which could be construed as determinative of other iwi’s customary interests.
[12] That final particular highlights the one significant difference between the particulars pleaded by Ngati Toa compared with those pleaded by Ngati Apa and Ngati Rarua. Ngati Toa does not plead that the November 1990 “decision was determinative as regards the parties to the case stated upon which that decision was given”. Its counsel, Mr Churchman, emphasised at the hearing before us that Ngati Toa was not, in its view, bound by the decision.
What is in issue – and what is not
[13] Given the relief actually sought in this appeal and the position taken by the parties in argument before us, we do not in this judgment address the issue that may be raised by that particular, that is whether the decision given in the context of the Ngai Tahu claim to the Tribunal is binding, in terms of subs (6) of s6A, on the Tribunal when it considers other claims made to it. That issue is also, we consider, irrelevant to the pleaded grounds for review. To refer to another particular of the pleadings, we also agree with France J (para [117]) that nothing turns on the fact that the case was stated to facilitate the hearing of Ngai Tahu’s claim to the Tribunal. In terms of s6A, enacted because of a problem arising in respect of that very claim, it is that facilitation that is the purpose of the legislation. Any exercise of the s6A power will inevitably arise from a particular claim and there may well be the consequence that a particular claimant will be better prepared for the MAC hearing of the case stated than others who are interested. That fact may be relevant, as discussed later, to the argument that a fair hearing had not been given because Ngai Tahu was in an advantageous position as a result of its claim. But to repeat, nothing can be made of the very fact that the statutory jurisdiction has been invoked. The matter must turn on the facts.
[14] In addition to ruling that the grounds for judicial review were not made out, the Judge would also have held against the applicants on the basis of delay ([2003] 1 NZLR 779, paras [179] to [188]).
[15] It follows from the pleadings and from what we have already said about their scope, that we face a narrow set of questions about the procedure that was in fact followed by and in the MAC. They relate to the alleged disparity of funding (including the alleged disparity in legal counsel), lack of representation and inadequacy of notice. Although the issues are narrow they are still important. As a great American Judge once said, "The history of liberty has largely been the history of procedural safeguards" (Frankfurter J in McNabb v United States 318 US 322, 347 (1942)).
[16] In particular we are not concerned with:
• the policy issues involved in Parliament's decision to introduce the case stated procedure and in the fact that the Tribunal has not used it again;
• the Tribunal's decision to state the case and the procedure it followed in doing that;
• any actions of the Crown except to the extent that the MAC had control or influence over those actions and its failure to exercise that control or influence led it into procedural error;
• the substance of the MAC decision; or
• the binding effect of that decision beyond the particular Tribunal proceeding in which it was sought (para [13] above).
The relevant requirements of natural justice
[17] Before we address the particular alleged denials of natural justice arising from the procedure followed by the MAC we consider, so far as they are relevant, the principles of natural justice and the legal requirements bearing on those alleged denials.
[18] We begin with the proposition that the parties, those appearing before the MAC, and those affected by the proceeding were entitled to a fair hearing. That entitlement includes the right to have adequate notice of the proceeding and a reasonable opportunity to present their own cases through evidence and submissions and to challenge the cases put up against them. In the first sentence of this paragraph we refer to the holders of those rights in an extended way (and not simply as "parties") given the special character of this jurisdiction, as recognised by Judge H K Hingston presiding at the first hearing of the case stated (see para [21] below).
[19] Those principles and rights are supported by, and operate within the context provided by, the relevant legislation. The appellants also contend that the MAC was obliged to comply with the principles of the Treaty of Waitangi in carrying out this particular task and that the statutory procedure should be supplemented in various ways in accordance with common law principle.
The legislative requirements
[20] The legislation provides the starting point. Under s37 of the Maori Affairs Act 1953 (in force when these proceedings occurred) the MAC was continued in existence, as a Court of record. While, as its name indicates, it is an appellate court and primarily hears appeals (with the standard powers of an appeal court (s45)), in the present jurisdiction it is of course sitting in an original jurisdiction. The parliamentary debates indicate that the Court was given this jurisdiction because of its special character in dealing with customary title issues and the experience and expertise of its members (488 NZPD 4018, 5 May 1988; 492 NZPD 6611, 15 September 1988; 494 NZPD 7928, 7933, 15 November 1988).
[21] We have no reason to doubt that the MAC fully understood the special character of its role. At its first preliminary hearing in May 1989, on matters of procedure, Judge Hingston, presiding, said this:
As I see the position, once we were seized of this matter, it is something similar to the Maori Land Court in the last century and the early part of this century when they went into an area and the Chief Surveyor or whatever he was called then said 'there is a great big piece of land here and we want you to determine ownership' so they issued a panui and said to all the tribes 'look we are going to look at this piece of land at such and such a time to determine who owns it. You are all welcome to come along and if you think you are entitled to claim well you have the right to appear'. This is the first matter whereby the Appellate Court has been involved in one of these boundary disputes arising out of the Treaty of Waitangi Act but I see no problem in emulating our predecessor judges that it is not a matter of joining in so far as a claim is concerned, if people think that their tribal groups have a claim they are entitled to be heard.
Mr M J Knowles, as counsel for Ngai Tahu, said "We accept all of that Sir". Other counsel, for Te Runanganui (Mr Stevens) and the Crown, and other tribal representatives, for Ngati Toa, Rangitane and the Kuruhaupo Waka Society, raised no question about it.
[22] Next, in August 1989, in its Interim Decision on "the 1840 Rule" the MAC recorded that
There was agreement between Counsel, that the approach of this Appellate Court in exercising its special jurisdiction on a question referred pursuant to Sec.6A of the Treaty of Waitangi Act 1975, should be somewhat different from the approach of the Court in its routine task of hearing Appeals from the Maori Land Court; and that this Appellate Court is acting as a "Treaty Court" in exercising the special jurisdiction.
The counsel who are referred to there are Mr Stevens, appearing for the cross claimants (at that point identified as Joe Tukapua and the Kurahaupo Waka Society), and Mr P B Temm QC and Mr Knowles, for the claimants (Ngai Tahu). (The Crown, which had announced at the first, May 1989, hearing that it was "holding a watching brief only", did not make submissions on the 1840 Rule.)
[23] The MAC finally recognised the different character of the jurisdiction in its substantive decision of November 1990:
We have throughout been conscious that the Court is sitting as a Court of first instance, that an appeal from our decision would necessitate the expense of a Privy Council appearance and that our decision is binding on the Waitangi Tribunal, and, because of these factors have allowed more leeway to the claimants in the presentation of their respective cases as well the testing of the other claimant's evidence than would normally be [the case] in the Maori Appellate Court. We believe that Section 54(1) of the Maori Affairs Act 1953 should be liberally interpreted by the Court when dealing with cases stated of this nature.
[24] We accordingly reject the submission that the MAC did not appreciate the special character of its task. It remains to be seen of course whether it followed a procedure required by that character.
[25] Section 54(1), to which MAC refers in its final substantive decision, enabled it to act on testimony and evidence which might it deal effectually with the matter before it, whether the evidence would be legally admissible or not. The liberality to which the MAC refers may be illustrated by the fact that one Te Runanganui witness appeared six times, the final time not truly by way of reply, and against a Ngai Tahu objection on that account.
[26] Under s58 a party or person entitled to appear in any proceedings could appear personally or, with the leave of the Court, by a barrister or solicitor or other agent or representative (s58; see also r24(3) of the Maori Land Court Rules 1958). Under those Rules, which also applied to the MAC, the Court had the power to adjourn the proceedings either to a specified date or sine die (r11). If it required further evidence it had power to give directions for the purpose (r73). It had power to make such order for the payment of costs as it thought just by or to any party or person to whom leave had been granted to be heard (s57). In cases not provided for, the Court was to dispose of the matter as nearly as practicable to provisions affecting a similar case, or in such manner as the Court "deems best calculated to promote the ends of justice" (r36). The Act provided for a Special Aid Fund out of which the Court in its absolute discretion could make orders for payment of legal costs and out of pocket expenses, but only for persons required by a Court direction to be heard or represented (s57A referring to r73) – a provision not applicable in the present circumstances, as indeed the MAC ruled in October 1989 in response to a request for expenses from the Kurahaupo Waka Society. That ruling is not challenged.
[27] The MAC's power of adjournment is a standard power. It stands in sharp contrast to the power that the Tribunal had conferred on it in 1988 by the same statute that inserted s6A: the Tribunal may "for sufficient reason" "defer" for such period as it thinks fit its inquiry into a claim. It is to state its reasons for that decision (s7(1A) and (2)). That power is additional to its power not to inquire into a claim (s7(1)). Those powers not to inquire or to defer are not of course powers that Courts can be expected to have. They, in general, have a duty to decide matters brought before them.
The Treaty of Waitangi
[28] Does the Treaty status of the process make any difference? Are the requirements of natural justice enhanced by the Treaty or its principles? As a matter of first impression it might be thought that the duty to give parties a fair opportunity to be heard and generally to accord them natural justice falls within the scope of the guarantee in article 3 of the Treaty of the rights of, now, New Zealand citizens.
[29] Mr Churchman for Ngati Toa developed the argument based on the Treaty. The duties arising from the principles of the Treaty, he said, impose greater obligations than the principles of natural justice do. The Treaty principle which he highlighted was the Crown's duty of active protection of Maori people (referring to Cooke P in New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 664).
[30] More particularly he submitted that:
1.the rules of natural justice should have been adapted to ensure that the parties to the case stated and all the other parties entitled to appear had a fair hearing;
2.all parties should have been involved at each step so that they might be heard on the proposed procedures;
3.the parties should have been granted adequate time to arrange their own researchers and submissions;
4.the parties should have been assisted in the provision of expert advice and evidence particularly necessary for this forum;
5.the procedures should have been such that all other matters necessary to ensure that the key parties in the Tribunal including the claimants, the Crown, the public and indeed future generations would have been satisfied that all matters that should be examined were examined.
[31] The first, general point to be made about this list is that in large measure it overlaps, as Mr Churchman recognised, the requirements of natural justice. Indeed we cannot see any practical difference once the following points are taken into account. A second, more specific, point is that the rights of the parties in 1 and 2 are to be put in terms their being accorded a proper opportunity to have a fair hearing (on the procedures to be followed as well as on the substance) and to prepare their cases. Third, to the extent that 4 and 5 would require the MAC to take actions beyond the powers available to it they cannot be sustained (see paras [34], [36] and [66] below). Fourth, while the final suggested requirement may be seen as the ideal, practical considerations and indeed the relevant rules and principles do not require it. Decades, even centuries on, historical facts may continue to be the subject of dispute, new evidence may be uncovered and the assessment of the facts may change.
[32] The fifth essential point about the list is that it requires that careful attention be given to the actual record of the MAC process, beginning in March 1989 with the Tribunal stating the case and ending twenty months later in November 1990 with the MAC decision.
[33] In the circumstances of this case – quite apart from the issue of principle – we cannot see that the proposed additional obligations make any difference. They appear to us to be encompassed within the requirements of natural justice and fairness. Accordingly we do not reach the question – answered in the negative by France J – whether the MAC case stated procedures are subject to the Treaty in some way (para [161]).
Common law supplementation
[34] Mr T J Castle, for Ngati Rarua, argued that the Court should supplement the statutory procedure in accordance with the common law. He quoted Lord Reid in Wiseman v Borneman [1971] AC 279, 308:
Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.
[35] That supplementation, Mr Castle submitted, was to be found specifically in the Treaty and its principles and more generally in the authorities. The essence of the first argument, so far as procedure is concerned, was the same as Mr Churchman's and we need not consider it further. We now consider the second limb.
[36] The justice of the common law, Willes J memorably said 140 years ago, will supply the omission of the legislature (Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 194). In some of the cases to which Mr Castle referred us the courts refused to add to the legislative requirements (eg Wiseman v Borneman [1971] AC 297 and Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC)) while in others they did supplement them (eg Daganyasi v Minister of Immigration [1980] 2 NZLR 130). The principle, along with its limit, is undoubted. It is indeed expressly recognised in r36, as in the Rules of other courts (para [26] above). Whether the statutory procedure is to be supplemented depends however on its alleged failure to accord justice and the availability to the MAC of the powers required to meet the alleged failure.
[37] The specific actions which Mr Castle said the MAC should have taken were to:
1.adjourn the proceeding sine die on 20 November 1989;
2.encourage Te Runanganui to complete the research for all iwi, identify individual iwi interests, arrange individual iwi hui for informed discussion, consultation and mandate, and arrange separate representation for iwi;
3.insist on 2;
4.encourage and, if necessary, insist that the Crown take an active role in supporting all iwi including providing or ensuring funding for counsel and research, making available Crown historians and ensuring common or equal footing;
5.direct the parties to address MAC procedures which would ensure an equal footing for all and individual iwi mandate and representation, in the cause of justice and fairness;
6.not proceed until all parties, including individual iwi, agreed they were on an equal footing or not disadvantaged.
[38] The MAC had power under its legislation to adjourn the proceeding (point 1), but whether it should have adjourned it sine die depends on the facts, a matter considered later. It could no doubt encourage (points 2 and 4) but it had no power to insist, in the sense of ordering, that a party (including the Crown) undertake the steps referred to in points 2 and 4. It could also direct or at least request the parties to address the procedures to be followed (point 5). But giving each party a power to veto the process (point 6) would frustrate the purpose of the legislation and would amount to an abrogation by the MAC of its statutory duty to answer the question put by the Tribunal in the case stated.
[39] To the extent that the MAC was able to take the proposed steps its obligation to do so depends on the justice of the case. We do not in fact face a possible supplementation of the legislation but rather an application of the existing r36. Whether natural justice was breached depends on the facts and we accordingly now turn to them.
The course of the Maori Appellate Court's process
[40] Did the MAC breach natural justice in the procedure it followed over the twenty month period from March 1989 when it received the case stated from the Tribunal until November 1990 when it delivered its decision to the Tribunal? Was there unfairness to those affected by the process? The answer to those questions requires close attention to the facts, on which we are greatly helped by the careful and detailed reasons given by France J and the chronology provided by Mr Finlayson for Ngai Tahu, on which the appended chronology is based.
[41] On 22 March 1989, five days after the case was stated by the Tribunal, the Deputy Chief Judge of the Maori Land Court set the case down, on a tentative basis, for a hearing lasting up to two weeks beginning on 15 May. On 4 April, Mr Stevens, as counsel for the cross claimants, filed a memorandum requesting that a judicial conference, attended by all affected parties, be held so that directions could be given on a range of matters. The next day, Judge Hingston fixed 15 May as the date for that hearing, in effect postponing the hearing of the case stated. On that day counsel for Ngai Tahu, the cross claimants and the Crown and two representatives of iwi participated in a conference on preliminary issues. Mr Stevens as counsel for the cross claimants, supported by counsel for Ngai Tahu, applied to the Court for an adjournment which was granted, to 25 September. In the course of that hearing Judge Hingston made the statement about the character of the s6A jurisdiction quoted earlier (para [21]) and Crown counsel indicated that it was "holding a watching brief only". The others at the hearing did not challenge the Crown taking that passive position.
[42] On 3 March, the Waitangi Tribunal had appointed Mr Knowles and Mr Stevens as counsel to assist the claimants and cross claimants respectively for the purpose of the case stated. The appointment was made under s7A(2) of the Treaty of Waitangi Act on the basis that the case stated was part of "proceedings before the Tribunal". The appointments were to end on 26 May 1989, the final day of the MAC hearing as then fixed. On 10 July those appointments were extended until the end of the hearing, then scheduled to begin on 25 September.
[43] On 12 July Mr Stevens wrote to the Director of the Tribunal responding to the Director's understanding, stated in a letter of 13 June, that Ngati Toa which had also filed a claim on 1 May, were no longer part of the Runanganui claim and requesting clarification before the Tribunal finalised research expenditure. The Tribunal was anxious that the focus be kept on the subject of the claims, the actions of the Crown. "It does not want the allocation of very limited research funds to cause or promote intertribal differences." Mr Stevens reported on a hui held on 17 June at which there was a full attendance from all nine tribes having membership of the Runanganui except Ngati Toa which he understood had given notice of its withdrawal.
[44] In the course of August the Tribunal informed Te Runanganui, representing the cross claimants, that it would provide $25,000 to cover research related activity on certain conditions, particularly that all relevant parties were to cooperate. On 15 August Mr Stevens, as counsel for the cross claimants, sought an adjournment of the 25 September fixture. His reasons included a delay in the grant of research funding. He had also just been asked to act by Ngati Toa. If funding became available immediately it was anticipated that the cross claimants would be likely to be in a position to commence leading their evidence by 20 November, the date scheduled for the second hearing of the case stated.
[45] On 7 September Mr Stevens advised the Tribunal that Te Runanganui was prepared to enter into a coordinated research programme. If adequate funding were not available within a reasonable period of time, his instructions were to seek an adjournment of the MAC proceedings sine die and, if that was not granted, to consider what legal remedies might be available to avoid a determination by MAC without his clients presenting evidence.
[46] The MAC, on 13 September, vacated the September fixture and set the matter down for hearing on 20 November. It recorded that the Tribunal was unlikely to contribute to research on the boundary matter. It warned that it was unlikely to accede to a request for further adjournments because the parties were not ready; the time between the Court giving directions on 15 May and 20 November was over six months; the Court was unlikely to agree that that was insufficient time to prepare.
[47] On 9 October Mr Stevens withdrew as counsel for Te Runanganui before both the Tribunal and the MAC because, he said, of an irreconcilable conflict which had arisen between two groups within it. In February 1990 he began acting for it again.
[48] On 31 October Te Runanganui was informed by the Tribunal that it would provide a research grant of $25,000. On 3 November the Deputy Chief Judge of the Maori Land Court, in a letter to the Tribunal, said of the grant that it "was to be used in the research work for their claim [that is to the Tribunal] but more specifically in determining the southern boundaries of the claim. This work would have enabled them to have material available for submission to the Maori Appellate Court, although the work was described as part of their own claim research." Later in the month the Tribunal's legal adviser in an internal memorandum noted that, although the funded research was strictly for the claim before the Tribunal, there would be an inevitable overlap so that some of the research could be used by the claimants before the MAC. The Deputy Chief Judge had indicated that that was not undesirable.
[49] That ability existed, notwithstanding the Tribunal's understanding, stated for instance in a letter of 21 September by its Registrar to Judge Hingston, that even were the Tribunal to have a particularly healthy budget it was not within its brief to fund the costs of research for parties involved in a case stated to the MAC. That expenditure would, she said, not seem to be covered by s5 of the Second Schedule to the Treaty of Waitangi Act. (Under cl 5A of that Schedule the Tribunal can commission research on various matters including "relating to a claim to the Tribunal". There is no express reference to the case stated procedure.) At the hearing on 20 November, the Tribunal's legal adviser said that he was aware of no direction that the Tribunal would decline to fund the case stated, and although that matter had been looked at there had never been a full application bringing the matter to the Tribunal's notice. Te Runanganui's application for funding had been answered by authorising research for their claim to the Tribunal but not for the case stated proceeding. But the Tribunal did specifically appoint Mr Stevens (and Mr Knowles) for the case stated proceeding and did fund them for that (para [42] above).
[50] On 6 November the Tribunal, according to an internal memorandum of 16 November, had authorised research (by Dr Maui John Mitchell who later represented Te Runanganui at the November hearing) "to investigate the issues of claim, many of which may have relevance to the boundary issues between Ngai Tahu and other South Island Tribes".
[51] On 7 November, in anticipation of the hearing later in the month, Dr Mitchell on behalf of Te Runanganui filed a submission saying that they were required to appear in the MAC under circumstances which were prejudicial to their case. Because, among other things, of problems with representation and funding, the hearing was premature. They were severely disadvantaged in relation to Ngai Tahu in terms of legal representation, completed research and other matters. "If a full evidential hearing proceeds, justice cannot possibly be done, and certainly will not be seen to be done." They would appear on 20 November or any other date fixed by the MAC but only to present that position. They would not present substantive evidence. They certified that they were an interested party. The MAC advised the parties that a preliminary conference would be held on 20 November to discuss the issues arising from that memorandum. On 17 November the Tribunal authorised research in the sum of $25,000 on behalf of Te Runanganui to be carried out by Dr Mitchell on specified matters.
[52] On 20 November the MAC held the procedural hearing. Counsel or representatives appeared for Ngai Tahu, Ngati Toa, Te Runanganui, Rangitane, and the Kurahaupo Waka Society. The MAC held that Rangitane, Te Runanganui, Ngati Toa and Ngai Tahu, but not the Kurahaupo Waka Society, had the standing of parties in the proceeding. Of the nine iwi members of Te Runanganui, Ngati Toa, wishing to stand alone, was a party. Te Runanganui was representing the other eight listed in its claim of 27 April 1989 filed with the Tribunal on 1 May (para [3] above). Four of them had confirmed their representation by Te Runanganui and, while there was an assumption that it represented the other four, the MAC requested written authorisations within a month. That was never specifically provided. We will return to that matter.
[53] The Court then turned to Dr Mitchell's application for an adjournment. Mr M Sadd, for the Society and Rangitane, did not object. Mr C A McVeigh, counsel for Ngati Toa, asked formally for the matter to be adjourned. They had been unable to find the funding for their research and had very recently been advised that there was some limited funding available. Dr Mitchell also made submissions in favour of the adjournment. He was hopeful they would be ready. Mr Temm, for Ngai Tahu, strongly objected to any adjournment.
[54] The MAC decided that it would hear the case of Rangitane on the following day, which it did, continuing to 22 November. (The hearing had originally been scheduled to last until 1 December.) The record of that hearing was to be sent, among others, to Mr Knowles (Ngai Tahu), Mr Sadd (Rangitane) and Dr Mitchell (Te Runanganui). At the end of the two days of hearing of the Rangitane evidence the Court concurred in the tribute which Mr Temm had paid to the representatives of Rangitane for the immense amount of work they had put in. The Court then adjourned until 18 June to hear the evidence of the other parties.
[55] In the course of December Te Runanganui's research proposal was agreed, the first payment was made and in late January 1990 the first Mitchell Report was presented to the Tribunal. Further reports were submitted in May, it being anticipated that they would be used at least in part in the MAC hearing.
[56] As already noted, Mr Stevens resumed acting for Te Runanganui in February. He applied to the Tribunal to be reappointed as counsel for the cross claimants for the purpose of the hearing in June which he anticipated would last two weeks. He said this:
In terms of S.7A of the Act the claimants need assistance as interested parties in the case stated between the Crown and the Claimant in WAI27. Although the case stated is referred to the Maori Appellate Court, it is part of the proceedings before the Tribunal. The Tribunal has previously thought the matters of such complexity or importance as to warrant an appointment for this part of the proceedings and the position is now unchanged.
On 18 June the Tribunal approved payment of his cross claim legal fees.
[57] The MAC held an eight day hearing from 18 to 27 June. Te Runanganui, represented by Mr Stevens and Mr B A Corkill, presented eleven witnesses over three days, Ngati Toa represented by Mr J V Williams presented four witnesses in one day and Ngai Tahu represented by Mr Temm and Mr Knowles presented eight witnesses over three days and part of a fourth. On that last day evidence in reply was given by Rangitane (which, it will be recalled, had given its principal evidence the previous November) and Te Runanganui and there were final addresses. In addition to the oral evidence, extensive written material was before the MAC. The parties had also had access to material prepared for the Tribunal.
[58] At the beginning of the June hearing, Judge Hingston asked Mr Stevens about the earlier conflict of interest. The Judge was apparently satisfied by the reply and gave Mr Stevens leave to appear on behalf of Te Runanganui. Mr Stevens raised no question about the timing of the hearing, the adequacy of his claimants' research or their preparedness to present their case. Mr Williams, in opening the case for Ngati Toa, mentioned kaumatua who were giving evidence and supporting its cause. The representation, he said, would set aside any contention that Ngati Toa was not fully represented in the case. He, too, did not express any concern about having to proceed at that time. Again, at the end of the hearing, the representatives of the parties were complimented on their contribution.
[59] The MAC gave its answer to the case stated, on 12 November 1990, about four months after the resumed hearing.
[60] Shortly after receiving the decision, Te Runanganui petitioned the Privy Council for special leave to appeal and in February 1991 sought judicial review of the decisions of the Tribunal and the MAC. Ngati Toa also petitioned for special leave. In none of those procedures did they challenge any element of the procedure actually followed by the MAC. The petitions were rejected in July 1991 and in November 1991 the application for judicial review was discontinued.
[61] Against that factual background, we can now consider the particular allegations made in support of the applications for judicial review.
Did funding disparity lead to unfairness?
[62] France J held that while there was disparity in funding between Ngai Tahu and the other iwi that had to be put in context. The funding was provided by the Waitangi Tribunal for the claims made to it. While it could not give the claimants funding for MAC purposes, in fact some of the funding was used for the case stated (paras [80]-[85]). The MAC’s ability to fund parties is directed to those who involuntarily find themselves before it, and while it had a power to adjourn sine die it had no power to defer its inquiry (para [98]).
[63] The appellants’ contention before us was that the extent of the disparity was so great that it was impossible for both sides of the case to be properly advanced and, as a consequence, the MAC should have adjourned the hearing and taken practical steps, including making representations to the Tribunal, about funding. Those representations were required since the case stated was an integral part of the Tribunal’s processes. Further, the Crown was in breach of its duty of active protection toward the iwi.
[64] We consider that this ground of appeal must fail both on the law and on the facts. On the law, we recall that the Court's ability to supplement those powers that the decisionmaker has under its legislation must not be used so as to frustrate the purpose of the legislation. Even less can that power to supplement be used to require the decisionmaker to exercise a power it does not have. As the earlier discussion of the legislation shows, the MAC had no power to assist the funding of the parties in this case. Whether the Tribunal had such a power, beyond the steps that it did take, was never put directly in issue with the Tribunal and in any event it is not a party to these proceedings. Whether the Crown might have provided financial assistance or might have played a fuller part, for instance by presenting evidence and argument, than the "watching brief" role it adopted was also never put to the test. The parties acquiesced in the passive position it took.
[65] We return to the position of the MAC and to the authorities to which we were referred, particularly by Mr Mathieson QC for Ngati Apa. It is of course the case that the law does strive to prevent injustice, in particular through requiring the provision of financial assistance to parties to litigation. That is to be seen in the law relating to legal aid and costs and the power to stay proceedings, notably in serious criminal cases (eg Dietrich v The Queen (1992) 177 CLR 292 and s24(f) of the New Zealand Bill of Rights Act 1990). Civil matters are of course seen differently, although there too legislative provision is very often made for meeting legal costs and expenses, as demonstrated in this very case. Mr Mathieson referred us to relevant statements of principle in New South Wales v Canellis (1994) 181 CLR 309. But in that case the High Court of Australia held there were no common law powers to provide for the funding of legal counsel in a statutory inquiry into doubts or questions about the guilt of a person convicted of a crime nor was there power to stay the inquiry. The distinction that courts and legislatures draw between serious criminal cases and other matters recognises not only the critical importance of proper representation where personal liberty and other major interests, for instance in reputation, are at stake, but also the powers which courts have to deal with the different issues. In criminal cases a court will generally have the power, in the interests of justice for instance on occasions of serious unfairness, to stay the prosecution, as happened in Dietrich. That power is available, notwithstanding the public interest in seeing criminal matters prosecuted to a conclusion. But in the present case, as in the generality of civil cases, there is no comparable power.
[66] Further, in our particular situation, a power to stay or even to defer would frustrate the purpose of the legislation by inhibiting the process of the Tribunal in the very situation in which Parliament has conferred the case stated power on the MAC to facilitate that process. A stay would also prejudice the position of the other parties to the Tribunal process. Given that the MAC has no power to make financial provision, in the words of the High Court of Australia "the rules of procedural fairness cannot compel a decision-maker to do what [it] has no power to do" (Canellis at 331).
[67] Mr Mathieson also referred us to the power a court has in civil proceedings to make a preemptive costs order. Assuming that power to exist in the MAC, even although it does not have the inherent jurisdiction and powers of the High Court, the order would presumably have had to be made against Ngai Tahu and would require exceptional circumstances (Berkett v Cave [2001] 1 NZLR 667). In any event, no such order was ever sought against anybody involved in the process.
[68] The other two cases to which we were referred concern claims by Canadian Judges, participating in the process of judicial salaries commissions, to have their reasonable expenses arising from that process paid by the provincial government. Those claims, successful in one case, unsuccessful in the other, arose directly out of the guarantee in the Canadian Charter of Rights and Freedoms of an independent and impartial tribunal (Newfoundland Provincial Court JudgesvNewfoundland (1998) 160 DLR (4th) 337, para [69] (Nfld SC) and R v Campbell (1998) 169 DLR (4th) 231 (SCC)). The constitutional context sets those cases far apart from this one.
[69] We turn to the facts. As France J says, it is not clear from the evidence what Tribunal research and preparation was relevant to and used in the MAC proceeding. When the MAC hearing resumed in June 1990, Ngai Tahu had received much more public funding than had Te Runanganui but in the context of the substantial costs that it had incurred in pursuing its Tribunal claim, in which the question of the boundary was but one out of many important issues.
[70] We had before us the funding figures considered by France J (para [84]). They suggest that Te Runanganui had greater funding for legal representation in the MAC than did Ngai Tahu but that the money available to Ngai Tahu for research was much greater. The appellants were however unable to provide any further assistance on the breakdown between the Tribunal and MAC costs. They provided us with no basis for finding that there was such a disparity that the process of answering the case stated became unfair.
[71] We come back to the fact that the only power available to the MAC (in addition to encouraging Tribunal funding) to meet any unfairness was the power to adjourn. At the request of Te Runanganui and others, based on lack of preparedness and the unmet need for research, it adjourned the proceedings, first, from May 1989 to September and, second, from September to November when it heard the witnesses of only one of the parties; it then adjourned the remainder of the hearing for another seven months until June 1990, fully 15 months after it had received the case stated and almost three years after the cross claims had been filed in the Tribunal. As mentioned, none of the parties expressed any opposition to being heard when they were in fact heard. Next, Ngati Toa did not ask for funding. It is also significant that in April 1990, Te Runanganui wrote to Ngai Tahu about its disappointment that negotiation between them had failed. They wished to continue to negotiate but that approach should not be interpreted as a lessening of their resolve or confidence. "We have completed preparations of the substantive historical arguments we shall present if a full evidential hearing in the Maori Appellate Court cannot be avoided. Kaumatua and spokespersons for the respective iwi are also well advanced in the preparation of their tribal stories, whakapapa, etc."
[72] There was also some suggestion that the alleged disparity in legal representation led to unfairness – Ngai Tahu being represented by Mr Temm QC as well as by Mr Knowles. But Ngai Tahu received no funding for Mr Temm in the MAC proceeding, representation by legal counsel is a matter of leave in that Court, there was no complaint made on this account to the MAC during its hearings and the MAC and counsel at both hearings complimented the representatives who appeared for their iwi.
[73] This ground of appeal must fail.
Did Ngati Apa people on the West Coast have a reasonable opportunity to be heard?
[74] The question whether the Ngati Apa people on the West Coast had a reasonable opportunity to be heard can conveniently be divided into the following questions suggested by Mr Mathieson's submissions:
(1)Did they know about the MAC hearing? Was the notice adequate?
(2)Did they know the extent of the Ngai Tahu claim on the West Coast (an aspect of (1))?
(3)Were they represented by Te Runanganui through Dr Mitchell and Mr Stevens? Had they given appropriate authorisation?
[75] France J held that the notice of the MAC hearing was sufficient, that there was no substantive material before the MAC to indicate that there were other interests on the West Coast that were not being represented and there was no breach of natural justice in respect of authorisation.
[76] Mr Mathieson contended, contrary to what France J may have suggested (eg paras [142] and [155]), that the fact that the MAC had made no error did not mean that there was no breach of natural justice. We agree with him. Compliance with natural justice is not to be assessed solely from the position of the MAC. As Lord Slynn, for a unanimous House of Lords, said in R v Criminal Inquiries Board, ex parte A [1999] 2 AC 330, 345, it is not necessary to find that anyone was at fault in order to decide that there has been a breach of natural justice. "It is sufficient if objectively there is unfairness." We should stress that we are not here concerned with actions of the parties themselves or their representatives which led to the alleged breach. That is a distinct situation in which complaints of breach of natural justice are usually rejected, particularly in non criminal cases. In general, for good reasons of principle and practicality, parties must bear the consequences of their own actions. We have already mentioned some of those actions (eg paras [41] and [71]) and mention others later (eg paras [92] and [106]).
[77] A question prior to those stated in para [74] above, raised by Mr Finlayson, is whether Ngati Apa in the South Island is a single iwi. Ngai Tahu says that Ngati Apa is a single iwi and that the iwi and members of it were informed of the hearing and represented at it.
[78] The Judge made no finding on the question whether Ngati Apa in the South Island was a single iwi (para [144]). The evidence, including Ngati Apa's, supports the view that it was.
Knowledge of the MAC proceeding
[79] The record includes a formal notice of the case stated dated 23 March 1989, issued by the Tribunal's Registrar. Maori claiming an interest were to notify the Registrar of the MAC in Christchurch. We were however referred to no evidence of the extent of publication of the notice. But even before the case was stated Mr Stevens was informed that that was to happen and that a two week hearing had already been tentatively set up for May. Further, he had already been appointed counsel for the cross claimants for the purpose of the hearing of the case stated in the MAC.
[80] The record also shows that Ngati Apa, including Ngati Apa people on the West Coast, knew that the MAC case was taking place and its scope. June Robinson, a Ngati Apa deponent who had lived all her life on the West Coast, spoke of her pride in both her Ngati Apa and Ngai Tahu lineage. She felt strongly that she should not be asked to deny one side of that lineage "being Ngati Apa associated with the Ngati Apa rohe from the Kawatiri Valley [Westport] north". She recalled being visited, probably late in 1989, by the researcher John Mitchell when he came to the West Coast and interviewed her and her mother.
5.1In 1989/90 when that discussion with Mr Mitchell occurred, I believed that it was for my mother and her siblings as the kaumatua at the time to make the decision on whether West Coast Ngati Apa should become involved in that litigation. The impression that I had very clearly expressed to me by my mother was that they were unable to afford another fight of the nature that had occurred in 1948.
5.2At the time in 1989/90, West Coast Ngati Apa were not organised and had no formal organisation or structure at all. There was no hui called to address the 1990 Appellate Court process and I did not have any awareness of the consequences of what could occur in that process. It did not occur to me that the process could reach a conclusion that the area of Kawatiri was Ngai Tahu territory exclusively and not Ngati Apa, because that had already been decided in 1948 in our favour. It was well known to all Ngati Apa on the West Coast that that was so.
The final passage demonstrates knowledge that the process was underway and related to the interests of the West Coast Ngati Apa, as was to be expected given the scope of the question asked by the case stated and the various claims made to the Tribunal. The misunderstanding of the possible consequences of the process does not deny the fact of that knowledge. Jean Robinson was also familiar with the activities of Te Runanganui, recording her apology for its AGM held on 17 and 18 November, immediately before the first evidence was heard. So too did Gordon McLaren who was also Ngati Apa (and Ngai Tahu) of the West Coast. He gave evidence to the Tribunal for Ngai Tahu on its claim, as did Iris Climo, Jean Robinson's oldest sister. They were among a number of Ngati Apa people on the West Coast who also had Ngai Tahu whakapapa and knew of the MAC proceedings.
[81] Some of them would also have known of the MAC proceedings from their shareholding in, and reports from, the Mawhera Incorporation. The Incorporation managed and administered the Maori lands that were reserved under the Arahura Deed of Purchase of 1860. The annual report for the year ended 31 May 1988 contained this passage:
LAND CLAIMS AGAINST MAWHERA
The claim on Mawhera lands brought to the Waitangi Tribunal by the Mohua tribes has been directed to the Maori Appellate Court for settlement at a hearing some time in the future. This is a serious challenge to our manawhenua and must not be taken lightly. When the time comes Mawhera will place its full support behind the [Ngai Tahu] Trust Board's effort in respect of confronting those usurpers who have laid the claim. There should be no need to stress the importance of unity and discipline amongst our shareholders.
The report was posted to all shareholders including Iris Climo, June Robinson and Gordon McLaren.
[82] The 1989 Annual Report said this:
The Cross Claim Hearing has been set down for 25 September 1989 by the South Island Maori Appellate Court. A full hearing of evidence from all parties will proceed as scheduled in the order of presentation determined at the preliminary hearing in Christchurch on 15 May 1989. The cross claimants for Tukapua and the Kurahaupo Waka Society will be first to present their evidence followed by Ngai Tahu.
[83] The Minutes of the 1988 meeting record Gordon McLaren voting on a motion and those of 1989 similarly record June Robinson and Iris Climo.
[84] We conclude that Ngati Apa, including Ngati Apa people on the West Coast, did have adequate notice of the MAC hearing. But did they have notice of its real extent and in particular of the scope of the Ngai Tahu claim to the Tribunal? The Mawhera material indicates that they did, as does other evidence considered next.
The scope of the Ngai Tahu claim
[85] Part of Ngati Apa's complaint is that, at the time of the hearing of the case stated, Ngai Tahu's claim extended only as far north as Cape Foulwind. It is true that the amended claim of 2 June 1987 did state that in 1840 the Ngai Tahu people owned virtually all the land in the South Island south of a line drawn between Cape Foulwind in the west (south of Westport) and White Bluff just north of Cape Campbell in the east. On 5 September however, in response to a request from the Tribunal, it included in an amended claim an allegation that the Crown had acted in a manner contrary to the spirit and interest of the Treaty by imposing a certain form of leasehold on the lands reserved from the Arahura Purchase. The northern boundary of that purchase is Kahurangi Point, much further north. Further, the case stated itself, referring to the document of 5 September 1987 as well as that of 2 June, recites that the Ngai Tahu claims relate to lands and fisheries within the tribal boundaries of Ngai Tahu which included all that portion of the South Island lying south of an irregular boundary line between Parinui-o-Whaiti (White Bluffs) on the east coast and Kahurangi on the west. "The Claimants say that their tribal boundaries extended to and included all the land sold by them to the Crown on 29 March 1859 under the Kaikoura Deed of Purchase and all the land sold to the Crown on 21 May 1860 under the Arahura Deed of Purchase." The case stated summarised the cross claims filed by Joe Tukapua and the Kurahaupo Waka Society in August 1987 (claiming parts of the lands within the two Deeds), the Society's amended cross claim of March 1988 (which included details of the claims of the tribes of the Kurahaupo Waka, including Rangitane, Ngati Kuia and Ngati Apa), the claim for the Mohua tribes, the claims by Mr Sadd of August 1987, January 1988 and April (claiming an interest as a descendent of Ngati Apa, Ngati Kuia, Ngai Tahu and others), and two other claims, one to undefined northern areas and the other, not yet filed, by Ngati Toa interests which might also raise boundary dispute issues. The maps attached to the case stated also plainly showed substantial overlapping claims.
[86] Newspapers, including those circulated on the West Coast, reported on the Ngai Tahu claim and its extent. As we shall see, the case Ngati Apa put to the MAC extended to the West Coast. We accordingly conclude that Ngati Apa, including Ngati Apa people on the West Coast, had notice of the scope of Ngai Tahu's claim.
The scope of the authority of Te Runanganui
[87] In challenging the role of Te Runanganui on the West Coast, Ngati Apa also emphasised that it had limited geographic authority. Rule 1.02 of its Charter and Rules states that it is an Association formed to assist Maori people and their families in the Nelson and Marlborough regions. But Rule 30.1 defines the takiwa as the top of the South Island following the line of the Waimakariri River (on the east) to Browning Pass and from there down to the Hokitika River to the West Coast. This document must have been prepared in late 1990 (a year or so after incorporation) since it mentions that the extent of the boundary is a matter before the MAC and its decision was to be delivered on 15 November 1990 (Rule 30.5).
[88] That definition of course reflects the fact that Te Runanganui, at the June hearings and in its preparation and research over the previous six months or so, had gathered information and presented evidence concerning the West Coast and in particular had represented the interests of Ngati Apa people there. It is consistent with its having and carrying out that role that, when Ngati Apa came to file a separate Tribunal claim in the name of the Trust (the first appellant) in June 1995 in respect of the West Coast as well as the East, it said this:
The claimant, Kathleen Hemi, through Te Runanganui O Te Tau Ihu O Te Waka a Maui Inc has filed in 1989 a claim on behalf of Ngati Apa under Wai 44. That claim has never been heard. It involves claims on behalf of a number of iwi through Te Runanganui O Te Tau Ihu O Te Waka a Maui Inc. Te Runanganui no longer operates or has a mandate to operate on behalf of Rangitane, Ngati Kuia, Ngati Koata, Ngati Apa or Ngati Waikauri. Accordingly the ability of claims to be jointly handled through Te Runanganui and pursued jointly is open to the following questions:
a.Te Runanganui no longer has a mandate from those iwi named in this paragraph.
b.The other iwi in Te Runanganui are actively taking steps to commence its winding up.
c.The claims encompassed by Wai 44 and the research into those claims have particularly concentrated on the Nelson/Marlborough districts and have not touched on the West Coast district where Ngati Apa believes it may well be the only one of the iwi named on Wai 44 to pursue a claim in relation to the West Coast.
d.The nature of the claims by the various iwi concerned against the Crown are significantly different as between Ngati Apa and the other iwi as a result of there being that northern West Coast connection.
If this claim is accepted as valid by the Tribunal, Kathleen Hemi on behalf of Ngati Apa will no longer pursue the claim on its behalf in Wai 44.
[89] That material also provides part of the answer to the argument that Ngati Apa people on the West Coast were not represented before the MAC. Ngata Apa knew the nature and scope of the MAC hearing and Ngati Apa people participated in the hearing as part of Te Runanganui. It was one of the nine member iwi and Kath Hemi was its representative and was Ngati Apa's signatory to the 1 May 1989 claim to the Tribunal. Mr Stevens at some time before 18 June 1990 (when the substantive hearing was scheduled to resume) applied to be appointed as counsel for the purpose of the case stated. Te Runanganui stated that it represented people of named iwi, including Ngati Apa, resident or having interests in the South Island. By that time of course Ngati Apa's claim in respect of the West Coast was plainly signalled. Documents filed in the previous year following the preliminary hearing had also confirmed that Ngati Apa was one of the member iwi of Te Runanganui and considered that its claim extended to the West Coast. For instance, the memorandum which Dr Mitchell filed requesting the adjournment of the November 1989 hearings gave some historical "snippets" of the place Ngati Apa had established on the West Coast (see para [51] above). At that hearing, the MAC held that Te Runanganui represented eight of the nine iwi listed as its members, Ngati Toa being separately represented (para [52]). The iwi membership of Te Runanganui was also confirmed at the beginning of the presentation of the case on 18 June 1990. The hearing before the MAC – as in the Tribunal – proceeded on the basis that there were claims filed to the whole of the South Island. In his final submission Mr Stevens said that Te Runanganui was not being greedy or reckless or irresponsible in claiming manawhenua as far south as the Waimakariri in the east and Hokitika in the west.
[90] At the end of the presentation of the case for Te Runanganui, Mr Stevens asked Dr Mitchell to explain why differences might appear in the interpretation of written material given by researchers engaged by different parties. He gave two explanations. The first is relevant to a point made earlier about the search for final historical truths (para [31]), the second relates directly to the involvement of people from the West Coast in the overall MAC process.
Mr Mitchell:
I think in two ways sir. One way is what is a fair and reasonable interpretation that any reasonably astute researcher or commentator can make of the material presented and there is almost certain to be differences in interpretation on some contentious issues. The other way in which we will differ is I believe we have had access to a pool of material that has not been available to the other commentators. We have tried more on the West Coast perhaps than on the east coast material but even there we have presented, we have tried to present insights taken from tribal histories, whakapapa books, accounts of our kaumatua and their recollections, and I have been honoured by the many, many kaumatua from our collective nine tribes who have made their homes available to us for discuss on this issue, their whakapapa books, some of which have been presented in evidence or extracts therefrom, and these people range from Wellington, other parts of the North Island, all over Nelson and Marlborough, and to the West Coast and into Canterbury, and we have spoken to people of our whanau from all of those places and we believe that that is as valid a source as the other, and I would have described that in more detail yesterday had I been able to.
Mr Stevens:
In the research material that you have looked at, prepared for the purposes of the Waitangi Tribunal Hearing, have you seen any indication that any of those researchers have approached any of those kaumatua sources that you refer to?
Mr Mitchell:
I know for a fact sir that a vast majority of our own kaumatua have not been approached by any of those researchers to see whether or not there may be a story from the Maori perspective to add to the rather stark written trace which seems to be the majority of source material they have used.
[91] One point about authorisation remains. At its hearing on 20 November the MAC did require written authorisation within a month from four of the iwi including Ngati Apa which had not provided it; those authorisations (including Ngati Apa's) were never given. But the MAC's requirement was stated in the context of "an assumption that Te Runanganui represents the other four"; the legislation does not require any such formal step; as we have seen, Te Runanganui throughout claimed to represent all eight iwi; we were referred to no evidence supporting such a requirement other than the statement made by the MAC on 20 November; Ngati Apa people, including those on the West Coast, participated actively in the process; and the Chairman of the Kaumatua Council of Te Runanganui gave evidence, in his counsel's words, "to reinforce the fact that the people that are here with him today have the authority to represent the iwi of Te Runanganui".
Summary
[92] The conclusion we reach is that Ngati Apa did have an adequate opportunity to make out its case. Te Runanganui presented its evidence in respect of all the areas in dispute; that was done almost three years after the filing of the first cross claim to the Tribunal on behalf of the iwi including Ngati Apa and a full year after the date first fixed by the MAC for the substantive hearing of the case stated. While in May, September and November of 1989 Te Runanganui objected, largely successfully, to the case going ahead, it had, by June of the following year, undertaken extensive research, presented it through a number of witnesses over several days and made no critical comment at all about the timing or its preparedness. As we have just seen, Dr Mitchell indeed thought that its research was more thorough than that presented against it. And in its Privy Council special petition and its application for judicial review filed shortly after the MAC decision it made no complaint at all about procedural matters.
[93] We conclude, with France J, that Ngati Apa, including Ngati Apa people on the West Coast, have failed to make out its complaint about the unfairness of the MAC proceedings. They did have a reasonable opportunity to be heard.
Did Ngati Rarua have a reasonable opportunity to be heard?
[94] We have already set out part of the procedure which Mr Castle urged on us (para [37]). What remains from that discussion for consideration by reference to the facts are two arguments : the MAC should have adjourned the hearing sine die on 20 November 1989 and it should have directed the parties to address the procedure to be followed. Those two arguments fail on the facts. The MAC ruled on Te Runanganui's request for adjournment on 20 November, with part of the hearing proceeding on the following two days but with the main hearing (of eight days) being adjourned for seven months. No one challenged that process and in particular no one said that they were not ready to be heard when the presentation of the cases recommenced in June 1990.
[95] Ngati Rarua also contended that it should have been able to participate in its own right distinct from Te Runanganui. In particular the MAC should have supplemented its procedures to ensure that Ngati Rarua:
1. was afforded a reasonable and fair opportunity to be heard;
2.was able to present its case in light of differences (and conflicts) in the interests of affected constituent iwi;
3.was afforded a reasonable and fair opportunity to adduce available and relevant historical evidence;
4.had a real opportunity to secure funding for preparation for hearing and organisations (including readiness for hearing);
5.was or had been consulted over the terms of the Case Stated;
6.actually had adequate research and funding for use by Ngati Rarua.
[96] Ngati Rarua from the outset was one of the tribes included in the cross claims, including that made on 1 May, and it was listed throughout in the documents filed by Te Runanganui and Mr Stevens. Ngati Rarua had also been prominent in the establishment of Te Runanganui and in its operation.
[97] Paul Morgan of Ngati Rarua gave evidence to the MAC. Dr Mitchell met Ngati Rarua kaumatua, his report discussed Ngati Rarua's interests on the West Coast and he gave evidence to the MAC about those interests.
[98] As the MAC made clear from the outset, at its first procedural hearing in May 1989 (para [21]), and as the Ngati Toa example demonstrates, Ngati Rarua could, had it wished, have taken a separate part in the proceeding. It did not however take that step and did not itself present an argument that the differences between its claim and that of the other iwi required that it be separately represented. Had it taken that step it could have sought Tribunal funding for its counsel, as was the case with Mr Knowles and Mr Stevens. If it had persuaded the Tribunal that its claim was distinct from those of the other iwi it may well also have been able to receive funding for research which would also have been of assistance to it at the MAC hearing, as again was the case with Ngai Tahu and Te Runanganui. Those possibilities remained hypothetical however since Ngati Rarua did not make those requests.
[99] The challenge relating to the consultation over the terms of the case stated cannot be made in these proceedings and at this stage. It would have had to be made against the Tribunal which is not a party. It would also have had to be made at the latest during the MAC hearings in the absence, at least, of some extraordinary circumstances which have not been identified.
[100] In the memorandum of points on appeal, Ngati Rarua also challenged the High Court finding that Te Runanganui effectively represented Ngati Rarua. The short answer is that it was represented on Te Runanganui and that at a hui on 30 September 1989 chaired by Mr Mason, who was the initial acting secretary of Te Runanganui, it resolved that Mr Stevens was to appear as counsel for the tribe and to present the iwi's case in conjunction with the case to be presented on behalf of the other iwi.
[101] But should the MAC have directed its mind to whether it was a realistic prospect that Te Runanganui could represent all nine (or eight) autonomous iwi? The history of the area in the first half of the nineteenth century included armed conflicts between iwi within Te Runanganui and deep differences continued. In his affidavit in these proceedings Mr Stevens states that because of the conflicting positions of the iwi it was virtually impossible to represent them. But that, he accepted, was in part a view reached with the benefit of hindsight. He had of course adopted the opposite position earlier in 1989 and (after the difficulties of late 1989 mentioned in para [47] above had been resolved) at the time of the hearing in June 1990. The inference to be drawn from his actions in which he demonstrated a very careful attitude to conflicts is that he had authority in fact. Te Runanganui also adopted that unified position at those times. As early as October 1987 the Tau Ihu Iwi were recognising the importance of grouping together and Mr Mason said that they felt that Te Runanganui would be more powerful politically than any individual Maori or group; it might be accorded greater respect.
[102] We accordingly conclude that none of the grounds presented by Ngati Rarua are made out. Like France J, we hold that it was given a reasonable opportunity to be heard.
Did Ngati Toa have a reasonable opportunity to be heard?
[103] Mr Churchman for Ngati Toa submitted that:
(1)the disparity in the research that had been done by Ngati Toa and by Ngai Tahu meant that there had been a breach of natural justice;
(2)the MAC should have ensured that all parties to the case stated had sufficient funding to enable them to carry out proper research in preparation for the case;
(3)in the absence of such funding and research the MAC should itself have called evidence and should have made further inquiry;
(4)the High Court erred in assessing the evidence that was "not adduced", because it was impossible to know what that evidence might have been or how the MAC would have evaluated it;
(5)the disparity in legal counsel amounted to a breach of natural justice.
[104] The submission about disparity in research is that while Ngai Tahu had had years to gather information and had filed very substantial documentation in the Tribunal, Mr Boast, who was engaged by Ngati Toa shortly before the hearing, was able to attend only one day of the hearing and carried out the work on a pro bono basis only as Ngati Toa could not afford to pay an historian.
[105] As we have already noted (para [71] above), Ngati Toa did not seek funding in relation to the MAC. As we have also seen, research done on the basis of the funding made available for the Tribunal claim was in fact used in the MAC process. Before the June 1990 hearing, Ngati Toa's solicitors advised the MAC that its evidence would take one or two days. At the June hearing, as again noted earlier, Ngati Toa made no complaint about it presenting its case at that stage. By contrast, at the previous November hearing, it had supported the application made by Te Runanganui to adjourn the hearing. Nor did Ngati Toa – or any other party – submit to the MAC that it should require further evidence or make further inquiry.
[106] We have already considered the essence of the contention about MAC's "obligation" to ensure sufficient funding (paras [26] and [38]). While it could try to encourage the grant of funding for research, it had no power to ensure such grants. To facilitate the preparation of research it did on a number of occasions exercise the major relevant power available to it – its power of adjournment. Again, there is the fact that Ngati Toa did not express any concern about presenting its case in June 1990, a year after it had filed its claim with the Tribunal.
[107] The contention that the MAC had an obligation to inquire itself faces the fact that no one suggested in the course of the process that the MAC should seek evidence or undertake inquiries itself. No particular gaps in the evidence were identified in the course of the lengthy and detailed hearing. In cases such as this there may always be the argument that more facts remain to be uncovered, but, as we have already said, that may lead to an impossibly impracticable search for total historical truth.
[108] Ngati Toa submits that the hypothetical question of the evidence which was not adduced should not have been considered by the High Court.
[109] France J reviewed the evidence in four categories (paras [104]-[124]. That careful discussion shows that it is not accurate to refer to the possible evidence as "not known". She was also able to assess by reference to the decision of the MAC the use that might have been made of the suggested evidence. Further, the legal hypothesis on which this argument is based must be wrong: an attack on a decisionmaker for not taking account of evidence which is truly "not known" would always be successful. That cannot be so.
[110] Natural justice, Ngati Toa submits, should demand that the MAC should have dealt with the issue of the alleged disparity of legal counsel. This argument fails for reasons which can be stated briefly. The Rules of Court contemplate that parties appear in person; legal representation required the MAC's leave; Ngati Toa was in fact represented on the day on which it presented its evidence by Mr J V Williams; Ngai Tahu received no funding for Mr Temm at the MAC hearing; Ngati Toa might have sought that assistance in respect of their counsel, as the Tribunal's payments to Mr Knowles and Mr Stevens for their MAC work showed, and no complaint about this matter was made either in the course of the MAC proceeding or in Ngati Toa's special petition for leave to appeal to the Privy Council.
[111] We accordingly conclude, with France J, that Ngati Toa has not established that it did not have a fair hearing. It did have a reasonable opportunity to be heard.
Conclusion
[112] It follows that each appeal against the refusal to grant judicial review must fail. They are dismissed.
[113] We accordingly need not consider the Ngai Tahu argument based on delay.
[114] If any question about costs arises, the parties can file memoranda.
Solicitors:
Gascoigne Wicks, Blenheim for Ngati Apa Ki Te Waipounamu Trust
Kensington Swan, Wellington for Te Runanga O Toa Rangatira Incorporated and Te Runanga O Ngati Kuia Charitable Trust
Wain & Naysmith, Blenheim for Ngati Rarua Iwi Trust and B M Mason
Walters Williams & Co, Auckland for Ngati Tama Manawhenua Ki Te Tau Ihu Trust
Crown Law Office, Wellington for the Crown
Bell Gully, Wellington for Te Runanga O Ngai TahuAPPENDIX
Chronology
26 August 1986 Ngai Tahu file claim
6 and 10 August 1987 Kurahaupo-Rangitane file claim and amended cross claim including land within the Kaikoura and Arahura deeds of purchase
20 August 1987 First hearing on Ngai Tahu claim commences
25 August 1987 Mr J G Stevens appointed by Tribunal as counsel for cross claimants
21 September and
5 November 1987 Tribunal hearings on resolution of matters between Maori and Maori
26 November 1987 Tribunal recommends legislation to enable MAC to deal with overlapping boundaries; Mr Stevens to continue as counsel for cross claimants in Ngai Tahu hearing
18 March 1988 Kurahaupo Waka Society files amended cross claims and further claims, by Mr Stevens; he continues to appear on behalf of the cross claimants in the Ngai Tahu hearings, in April 1988, June 1988, and December 1990; he files memoranda on the cross claimants’ behalf in March, May and August 1988
16 September 1988 The Tribunal notes that the cross claim of 18 March 1988 appeared to include parts of the Kaikoura and Arahura purchases, the whole of which lands were claimed by Ngai Tahu; there is a dispute; it determines that the dispute about standing and property rights had to be resolved before the Tribunal made any finding or recommendation; in the meantime it would continue the hearing of other parts of Ngai Tahu’s claim
1 January 1989 Section 6A comes into force
27 February 1989 Tribunal gives directions about the stating of a case to the MAC under s6A including the giving of notice and publication of the case stated reference to the MAC; Mr Stevens is also to be advised of the intention to state a case and the dates of the tentative fixture in the MAC – 15 May 1989; he has no input into the formulation of the case stated, the cross claimants not being considered “parties” at that stage
17 March 1989 The case stated is submitted by the Tribunal to the MAC; the parties are stated to be the claimants (H R Tau and Ngai Tahu) and the Crown as respondent
1 May 1989Named individuals, through Te Runanganui O Te Tau Ihu O Te Waka Maui and on behalf of Rangitane, Ngati Kuia, Ngati Koata, Ngati Rarua, Ngati Tama, Te Atiawa, Ngati Apa (the named claimant from which was Kathleen Hemi), Ngati Toa and Ngati Waikauri, file a claim in the Tribunal; all nine iwi have joined in Te Runanganui, an incorporated society; the claim was signed by Mr Stevens as their counsel
15 May 1989MAC, at a preliminary hearing, on the application of Mr Stevens, adjourns the hearing of case stated to 25 September 1989
1 June 1989Ngati Toa Rangatira file claim with Tribunal relating to lands including lands north of a line from Kaikoura to the Arahura
15 August 1989 Mr Stevens as counsel for the cross claimants requests MAC to adjourn the hearing fixed for 25 September 1989, the reasons including delays in the provision of research funding needed to prepare the evidence
13 September 1989 MAC vacates the 25 September fixture and sets the matter down for 20 November; “it is unlikely the Court will agree to a further adjournment”
2 October 1989, February 1990
Mr Stevens withdraws as counsel for Te Runanganui because of conflict of interest and in February 1990 recommences acting for it
2 November 1989 MAC advises that it will hear the case stated from 20 November to 1 December 1989
7 November 1989 Te Runanganui informs MAC that because of lack of preparation, funds and counsel they will be able to appear for only one day
20 November 1989 MAC at a preliminary hearing, with appearances for Ngai Tahu, Rangitane, Ngati Toa, Te Runanganui, and the Kurahaupo Waka Society:
(1)holds that all except the Society have the standing of parties to the case stated proceeding; given that Ngati Toa was separately represented Te Runanganui was to represent the remaining eight iwi it lists with the representatives of four of them to be confirmed in writing within a month
(2)decides to hear the case for Rangitane and then to adjourn until 18 June 1990.
A representative of the Tribunal reported on the matter of funding
21 and 22 November 1989
Rangitane presents its case
18, 19 and 20 June 1990
Te Runanganui represented by Mr Stevens and Mr B A Corkill presents its case (eleven witnesses) followed by –
21 June 1990 Ngati Toa represented by Mr Joe Williams presents its case (four witnesses) followed by
22, 25, 26 and 27 June 1990
Ngai Tahu represented by Mr P B Temm QC and Mr M J Knowles presents its case (eight witnesses) with
27 June 1990 Further evidence from Te Runanganui and Rangitane
12 November 1990 MAC issues decision on case stated
In or about December 1990
Te Runanganui petitions the Judicial Committee of the Privy Council for special leave to appeal from the judgment of MAC essentially on the ground that the Court did not consider certain evidence adequately or at all; the petition did not include the particulars supporting the present proceedings; Ngati Toa filed a similar petition sometime later
February 1991 Tribunal publishes Ngai Tahu Land Report
19 February 1991 Te Runanganui brings judicial review proceedings, prepared by Mr Stevens, against the Tribunal, the members of MAC who answered the case stated, Ngai Tahu, the Rangitane Society and Ngati Toa challenging (1) the Tribunal’s decision to state the case and (2) MAC’s decision on the case stated; again the particulars supporting the second cause of action did not include the grounds pleaded in the current proceeding
11 July 1991 The Judicial Committee refuses the petitions for special leave
26 November 1991 Te Runanganui judicial review proceedings discontinued
5 August 1993 Mr M Sadd, a member of Rangitane ki Wairau, commences judicial review proceedings against the Tribunal and MAC
13 May 1994Greig J dismisses the Sadd proceedings
24 April 1996 Parliament enacts Te Runanga O Ngai Tahu Act
21 November 1997 Crown and Ngai Tahu execute deed of settlement
31 March 1998 Ngai Tahu Claims Settlement Bill introduced
May 1998Submissions by Ngati Rarua, Te Atiawa, Ngati Apa and Rangitane on the Settlement and Bill
11 May 1998Ngati Apa commences the current proceedings
1 October 1998 Parliament enacts the Settlement Act
24 June 1999 Ellis J in High Court strikes out the current proceedings
8 May 2000Court of Appeal allows Ngati Apa’s appeal and allows amendment to statement of claim
21 September 2001 Ngati Rarua files its statement of claim
2 November 2001 Ngati Toa files its statement of claim
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