Ngati Muriwai Hapu Incorporated v The Whakatohea Maori Trust Board Incorporated HC WN CIV 2007-463-30
[2008] NZHC 2314
•12 May 2008
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2007-463-30
UNDERthe Mäori Trust Boards Act 1995, Mäori Fisheries Act 2004, Judicature Amendment Act 1972
BETWEEN NGATI MURIWAI HAPU INCORPORATED
Plaintiff
ANDTHE WHAKATOHEA MAORI TRUST BOARD INCORPORATED
First Defendant
ANDTE OHU KAI MOANA Second Defendant
Hearing: 23 April 2008
Counsel: T H Bennion and I S Spurdle for plaintiff
J P Ferguson for first defendant
P Appleton and H Harbrow for second defendant
Judgment: 12 May 2008 at 3.30pm
In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.30pm on the 12th day of May 2008.
RESERVED JUDGMENT OF MACKENZIE J
The application
[1] This is an application for review under s 26B(1) of the Judicature Act 1908 of a decision of Associate Judge Gendall requiring the plaintiff to provide security for costs in the sum of $20,000 for each defendant. The judgment under review was delivered on 29 November 2007 following a full defended hearing on 19 October
2007.
HAPU INC V WHAKATOHEA MAORI TRUST BOARD INC AND ANOR HC WN CIV 2007-463-30 12
May 2008
[2] It is unnecessary to discuss in detail the principles which apply to the review of an Associate Judge’s decision. The approach is essentially appellate and the applicant has the burden of persuading the Court that the decision was wrong. Where the decision involves exercising a discretion that will require the applicant to show the Associate Judge acted on a wrong principle or failed to take into account some relevant matter. The Court will not repeat the weighing exercise unless the Associate Judge gave excessive weight to some factor or patently inadequate weight to another, so as to be “plainly wrong”.
The Associate Judge’s decision
[3] The Associate Judge noted that the plaintiff is an incorporated society which purports to represent members of a hapu of the Whakatohea Iwi, Ngati Muriwai. The second defendant, has amongst its function that of recognising and registering mandated iwi organisations (MIO) who are to receive and manage fishery settlements under the Mäori Fisheries Act 2004. It has recognised, as an MIO for part of the North Island East Coast area, a trust of which the first defendant is the trustee. The Associate Judge noted the plaintiff’s contention that this matter involves significant issues arising from the Treaty of Waitangi and concerning the settlement of ancient fishing rights.
[4] The Associate Judge discussed the principles applicable to an application for security for costs in terms which are not in issue in these proceedings and it is unnecessary for me to describe those principles in detail. He noted that there was no issue as to the threshold requirement that the plaintiff is impecunious. He noted that the decision whether to order security for costs involves the exercise of a discretion, which is not to be fettered by the application of principles, but is to be exercised based on a careful assessment of the particular circumstances of each case and there is no predisposition towards either the grant or refusal of an application. A balancing of the interests of the parties is necessary. The merits of the case, so far as they can be assessed at this interlocutory stage, will be relevant to the exercise of the discretion. The Associate Judge discussed the merits of the plaintiff’s case at some length and summarised his views in these terms:
[43] For all these reasons, although there is a limit as to how far the Court, at this early stage, can assess the merits and prospects of success of the plaintiff’s claim here, it is difficult to escape the conclusion that the plaintiff’s claim is not a particularly strong one. This is a factor which sways in favour of granting the present security for costs application.
[5] He then went on to note that if litigation is bought in the public interest or is of public importance, that must be seen as a factor to be taken into account in exercising the Court’s discretion. He summarised his views in these terms:
[49] As I see it, public interest does not play a significant role in this proceeding, a proceeding which involves a specific question of law and is relevant only to the unique set of facts between the plaintiff and the defendants.
[50] The outcome of this proceeding is relevant to the private interests of Ngati Muriwai. The plaintiff seeks to position itself as the appropriate body to receive the fisheries assets and thus its proceeding relates generally to those particular interests and not to any greater public interest.
[6] He then addressed a suggestion that the plaintiff’s recourse to judicial review was premature and addressed some other criticisms of the proceedings. He considered that the proper balancing of the interests of the parties must fall on the side of the defendants who have an interest in being protected against being drawn into litigation which may prove to be both expensive and unjustified. He accordingly allowed the application and fixed the quantum of security at $20,000 for each defendant.
The merits of the case
[7] On the merits of the case section of the judgment, the applicant takes issue with what counsel describes as “five distinct findings of the decision which led to the determination that the plaintiff’s claim is “not a particularly strong one””. The approach which I adopt in considering each of those five matters is to consider whether, individually or collectively, they are such that the assessment of the merits of the case either:
(a) Was based on a misunderstanding of the nature of the plaintiff’s claim; or
(b) Involved a view of the merits which could not reasonably be taken.
[8] The first complaint concerns the Associate Judge’s statement of the plaintiff’s underlying grievance which was expressed in these terms:
[27] The plaintiff’s underlying grievance, which is manifest in the context of fisheries allocation in the present proceeding, appears to be that Ngati Muriwai is not specified as a hapu of Whakatohea in the Mäori Trust Board Regulations.
[9] Counsel for the plaintiff contends that that is not the case. He submits that to test that proposition, one need only ask whether in terms of the application for review and supporting grounds and affidavits, the hapu would be satisfied if Ngati Muriwai were specified in the Mäori Trust Board Regulations and submits that it would not do so. He submits that their main concern is the trust board is a creation of the Crown and answerable in law to the Crown and not iwi and therefore cannot properly be an MIO under the Act.
[10] That criticism of the Associate Judge’s description of the underlying grievance cannot be upheld. He clearly used the term “underlying grievance” to describe the motivation of the plaintiff in bringing the proceedings, not the legal basis upon which the claim was framed. He had succinctly described that earlier, when he said:-
[7] The plaintiff’s essential claim in this proceeding is that the first defendant, a Mäori trust board established under the Mäori Trust Boards Act
1955 should not be recognised as the appropriate mandated iwi authority
here under the Mäori Fisheries Act 2004 (as has happened) for several reasons. This is because first, its board members are elected to represent only certain sub-tribes (clause 4 of the Mäori Trust Board Regulations
1985), secondly, that a Mäori trust board is responsible to the Crown under the Mäori Trust Boards Act and thirdly, because a body with a different legal
structure would be more appropriate here.
[11] I do not consider that the plaintiff has demonstrated a misunderstanding on the part of the Associate Judge such that his assessment of the underlying grievance was wrong.
[12] The second finding which is disputed is a statement that members of Ngai
Muriwai would in any event benefit from the settlement. The Judge said:
[39] It is clear that fisheries assets must be administered for the benefit of all members of an iwi. As I see it there would appear to be no question here that any of the Ngati Muriwai members or supporters of the plaintiff are missing out on the benefits of the settlement because the second defendant is required before transferring any settlement assets to the Mandated Iwi Organisation for Whakatohea to be satisfied that its constitution is representative of all persons who are entitled to be members of Whakatohea.
[13] Counsel for the plaintiff submits that “those findings are largely irrelevant once it is realised that the key issue is the use of a trust board as a key component in the fisheries trust”. He submits that it also disregards the fact that Whakatohea themselves have chosen a form of MIO in which hapu are a critical component.
[14] Again, I do not consider that any misunderstanding of the nature of the claim has been demonstrated. The Judge was addressing the merits of the claim on a broader basis than whether the specific points upon which the plaintiff challenges the legality of the recognition of the relevant MIO have legal merit. That is an appropriate approach to take on an application for security for costs. A relevant question, in determining whether an impecunious claimant should be able to pursue a claim in circumstances where it will be unable to meet the defendant’s costs if unsuccessful, must be whether there will be any practical utility to the plaintiff in the event that the claim is successful. On that question, the approach taken by the Associate Judge was appropriate.
[15] The third alleged error relates to the following statement:-
[37] … in more recent years, however, it is suggested that members of Ngati Muriwai have asserted that Ngati Muriwai should participate in iwi affairs separately from Ngati Rua. Whether this provides an appropriate basis for the plaintiff’s supporters to bring the present proceeding and to challenge the fisheries settlement process under the Mäori Fisheries Act
2004 is another matter however.
[16] The plaintiff takes issue with the use of the word “asserted”. Counsel submits that the evidence before the Court went well beyond that. In effect, he submits that the contention should have been treated as a fact, not an assertion. I do not accept the submission that this was an error of reasoning, for two reasons:
(a) The clear tenor of the passage cited is that it was the relevance of the proposition, not the correctness of the proposition, which was important to the reasoning; and
(b)This was an interlocutory application, on which the evidence was necessarily not fully tested or analysed. It would not have been appropriate for the Associate Judge to have made a finding of fact which was not essential to the determination of the issue before him.
[17] The next alleged error is that it is submitted that the Associate Judge mistakenly drew an analogy between this case and the factual situation in Minhinnick v Treaty of Waitangi Fisheries Commission [2006] NZAR 203 (an earlier decision of his). He said:
[40] In my view a clear analogy exists here between the present case and the position of Ngati Te Ata which occurred in the Minhinnick proceedings. In that case legal proceedings were commenced in the context of a fisheries settlement in an attempt to secure recognition of Ngati Te Ata status as a separate iwi from Waikato but this was a course that in fact required a statutory amendment to the Mäori Fisheries Act 2004.
[18] Counsel for the plaintiff submits that in the Minhinnick proceedings, the only route to share in the fisheries settlement as an iwi was via a distinct listing of the iwi in the statute, and that that point is quite different from the ability of iwi to provide for hapu in a settlement.
[19] I think that that Associate Judge was clearly taking a broader view when drawing the analogy. He had, in Minhinnick, said
[61] As I see it, there can be little doubt that the continuing utility of the current proceeding must be questioned now in light of the enactment of the Mäori Fisheries Act 2004, and the allocations which are now underway.
[62] I am of the view that given recent events, there is little merit now in the applicant’s claim. Any public interest which may have existed has been overtaken by events in light of the 2004 Act.
[20] In expressing that view, he was clearly taking in that case a broader view of merits than the technical legal merit of the plaintiff’s claim in that case. He took a
similarly broader view in this case. So understood, his reference to a clear analogy is appropriate, and does not demonstrate any misunderstanding of either claim.
[21] The final alleged error as the merits of the case relates to paragraph 42 of the judgment where the Associate Judge said:
[42] In its notice of opposition to the present security for costs application, the plaintiff also raises an issue as to the status of the Mäori Trust Boards as Mandated Iwi Organisations and suggests that they cannot meet the requirements of the Mäori Fisheries Act 2004. In my view there is little in this argument. Section 14(a) Mäori Fisheries Act 2004 provides that a Mandated Iwi Organisation may be a company, Trust, Body Corporate set up under an enactment or incorporated society. This clearly includes a Mäori Trust Board.
[22] Counsel for the plaintiff submits that while that may be true, s 14(a) is not in any way determinant or even of much assistance in the issue of whether a Mäori Trust Board can become an MIO in that it simply lists the type of organisations that might become an MIO but does not mention other relevant criteria or matters. It is of course true that the fact that a Mäori Trust Board falls within the category of a trust, being one of the forms of entity which may be an MIO, does not of itself prevent a challenge such as the plaintiff makes. It is a necessary, but not sufficient, requirement that an MIO be an entity falling within s 14(a). However, the fact that the MIO meets this threshold requirement is clearly relevant to the prospects of success of that claim, and I do not think that it can be said that the Associate Judge was wrong to take it into account. It is clear from his comments that he was there addressing only the narrow submission that the MIO did not meet the requirements of the Act, not the broader submission that it was not an appropriate entity.
[23] For these reasons, I am of the clear view that the plaintiff has not shown that the Associate Judge’s assessment of the merits of the case was based on a misunderstanding of the nature of the claim, or that it involved a view of the merits which could not reasonably be taken. That is the case when the matters challenged are considered individually, and when the combined effect of all of them is considered.
The Public Interest
[24] As to the factors relied upon by the Associate Judge in relation to the public interest, the plaintiff again challenges several points. First it submits that the Associate Judge has found that the public interest is small because the hapu is small. Counsel submits that this fails to appreciate the centrality of hapu to iwi. I do not agree that his comments are to be interpreted in that way. The hapu clearly has a private interest in the litigation. That private interest exists whatever the size of the hapu. The point which the Associate Judge was addressing was whether the size of the hapu was such that its private interest might carry with it an element of public interest, arising from the number of individuals affected. His comments in this regard were clearly appropriate. They cannot properly be seen as in any way dismissive of the importance of hapu, or of the importance of the matters involved here so far as the private interests of the hapu and its members is concerned.
[25] The plaintiff also takes issue with the following statement:
[46] So far as this public interest element is concerned, while in the past there has been a degree of public interest recognised in other litigation associated with the question of Mäori fisheries allocation, such public interest has generally been ever-diminishing as progress has been made towards agreement and implementation of a final scheme of allocation. This fact was recognised as long ago as October 2003 when in the context of dismissing an application for pre-emptive costs in a different proceeding, Morrison & Ors v Treaty of Waitangi Fisheries Commissions & Ors (High Court Auckland, 22 October 2003, CP 122SW/99 and CP 171/97), Paterson J stated at para. 17:
“I accept that there is a public interest element remaining in this litigation notwithstanding that the proceedings can also be categorised as hostile claims by individuals who are not direct beneficiaries of the settlement assets, and who seek to challenge the conduct of the Commission and the Crown. The applicants do not represent the vast majority of Maoridom which is not opposing the scheme. In many respects, the issues remaining in the proceedings are private issues aimed to benefit the litigants. Thus, while there is a public interest element in some of the issues, it is not, in my view, a substantial public interest. A reading of the affidavits suggests a strong private interest in the litigation.”
[26] Counsel submits that the final scheme of allocation has been settled (it must be to the iwi listed in the Act), but this case is about something different, namely
how iwi organise internally to give benefits to members and how they may recognise hapu in that process. There is no indication that the Associate Judge did not recognise that distinction. His comment was clearly intended to recognise the reality that:
(a) The broad issues which had been litigated earlier, of whether there should be an allocation of fisheries assets to Mäori, and what form such an allocation should take, carried with them a considerable public interest element;
(b)As the fisheries settlement process has proceeded, the main features of the allocation have been settled both by legislation and by litigation; and
(c) The questions which now arise, in the process of putting in place the final mechanisms, have become more case specific, and more party specific, than the broader general questions which earlier arose.
His description of this evolution as a diminishing public interest is entirely apt. At the same time as the public interest element diminishes, the private interest element increases, by reason of the more fact specific and party specific nature of the questions. But such a private interest will not generally be relevant to security for costs.
[27] The plaintiff also takes issue with the Associate Judge’s comments that the plaintiffs have not put forward any practical suggestions as to an alternative governance entity. That was made in the context of the consideration that, in the absence of a clear and viable alternative, the attack on the allocation to the first defendant would inevitably involve a significant delay before Whakatohea could receive any of its fisheries assets. That was clearly a relevant consideration which he rightly took into account.
[28] The plaintiff also takes issue with the Associate Judge having placed some reliance on s 180 of the Mäori Fisheries Act. He was entitled to take it into account, the weight to be attributed to it was for him. He did not place strong reliance upon it.
[29] The plaintiff also takes issue with the following:
[52] The defendants suggest broadly that the plaintiff appears intent on the express recognition of Ngati Muriwai at the cost and to the detriment of other members of the iwi. They suggest that the plaintiff should either lobby for amendment to the Regulations or wait for the general treaty negotiations process involving Whakatohea interest to get back on track. In my view there is substance in this contentions.
[30] Counsel submits that the reference to the cost and detriment to other members of the iwi with benefit only to the plaintiffs is unwarranted when it is remembered that a key component of the litigation is how the use of the trust board structure will affect all members of the iwi and the statements that the mandated iwi organisation will be transitory. The Associate Judge’s view that there is substance in these contentions is a view which he was entitled to reach. It is not one which can or should be disturbed on review.
[31] The final matter which is challenged is the Associate Judge’s view (expressed at paragraph 54), that “the suggestion advanced for the defendants that “the minority are endeavouring to hold the majority to ransom” in the sense that, in the face of this proceeding, the first defendant has been unable to complete the transfer of assets from the second defendant is not without substance”. That, too, is a view which he was entitled to reach and is not one which can properly be challenged on review.
Result
[32] Having considered each of the plaintiff’s challenges in turn, and also standing back and viewing the matter in total, I do not consider that the plaintiff has demonstrated that the Associate Judge has erred in a way in which could properly be the subject of review. For these reasons, the application for review is dismissed.
“A D MacKenzie J”
Solicitors: Bennion Law, Wellington, for the plaintiffs
Kahui Legal, Wellington, for the first defendant
Minter Ellison Rudd Watts, Wellington for second defendant
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