Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General
[2017] NZHC 2482
•11 October 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV-2016-485-603 [2017] NZHC 2482
IN THE MATTER OF the Deed of Settlement between the Crown
and Māori dated 23 September 1992; s 9 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992; and the Māori Fisheries Act 2014
IN THE MATTER OF
the New Zealand Bill of Rights Act 1990
IN THE MATTER OF
the Declaratory Judgments Act 1908
BETWEEN
NGĀTI MUTUNGA O WHAREKAURI ASSET HOLDING COMPANY LIMITED
First Plaintiff
AND
TWA HOLDING COMPANY LIMITED Second Plaintiff
AND
THE ATTORNEY-GENERAL Defendant
Hearing: 20 February 2017 Appearances:
T J Castle and T A Castle for Plaintiffs
V L Hardy and K L Hill for DefendantJudgment:
11 October 2017
JUDGMENT OF CLARK J
Pursuant to r 11.5 of the High Court Rules I direct that the delivery time of this judgment is 10:00 am
11 October 2017
NGĀTI MUTUNGA O WHAREKAURI ASSET HOLDING COMPANY LIMITED v TWA HOLDING
COMPANY LIMITED [2017] NZHC 2482 [11 October 2017]
Introduction
[1] The Kermadec Ocean Sanctuary Bill (KOS Bill)1 is to establish a new marine sanctuary in New Zealand’s exclusive economic zone around the Kermadec Islands. The 620,000 square kilometre area is to be preserved in its natural state.
[2] The plaintiffs are two iwi quota holding companies. The plaintiffs say establishment of the Kermadec Ocean Sanctuary (the Sanctuary) will prohibit them exercising rights and freedoms affirmed under the New Zealand Bill of Rights Act
1990 (NZBORA). The plaintiffs ask the Court to recognise the unlawfulness of the establishment of the Sanctuary.
[3] The Attorney-General responds by applying for an order staying the proceeding. The Attorney-General’s position is that allowing the claim to proceed while the KOS Bill is before the House of Representatives would infringe the privileges of Parliament. The plaintiffs oppose the Attorney-General’s application. This judgment determines the application for stay.
Background
[4] On 29 September 2015 the Prime Minister announced the government would introduce a Bill to establish a marine protected area in New Zealand’s exclusive economic zone around the Kermadec Islands.
[5] On 3 March 2016 the KOS Bill was introduced to the House of Representatives. It received its first reading on 15 March 2016 and was referred to the Local Government and Environment Committee for consideration. The Committee reported to the House on 22 July 2016. As at the date of hearing the Bill was yet to have its second reading. It sat at number 22 on the Order Paper in the
category of “Business before the House.” The Bill is yet to have its second reading.
1 Kermadec Ocean Sanctuary Bill 2016 (120–1).
Plaintiffs’ statement of claim
[6] The plaintiffs are concerned that the establishment of the Sanctuary is unlawful and prohibits them from exercising their NZBORA rights and freedoms. Those rights, it is said, are informed and secured by binding instruments:
(a) the Treaty of Waitangi;
(b) the Deed of Settlement between the Crown and Māori dated
23 September 1992;
(c) the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992; (d) the Māori Fisheries Act 2004;
(e) the bundle of rights attaching to perpetual individual transferable fishing quota under the New Zealand Quota Management System; and
(f) the Fisheries Act 1996.
[7] The plaintiffs ask the Court to declare that establishment of the Sanctuary is inconsistent with their rights. The following relief is sought:
A declaration or declarations (pursuant to the Declaratory Judgments Act
1908 or otherwise pursuant to the Court’s inherent jurisdiction including as to the extraordinary writs and remedies) that the establishment of [the Sanctuary] is inconsistent with the rights and freedoms of the plaintiffs affirmed by [NZBORA]; and/or breaches, compromises or offends against [NZBORA] and the plaintiffs’ rights and freedoms thereunder in one or more of all of the respects particularised in [paras], 15(b), 15(c), 15(d), 15(e), and
15(f) herein.
Application for stay
[8] The Attorney-General seeks a stay of the proceeding until the KOS Bill is no longer before Parliament. The grounds upon which the stay is sought are set out in the Attorney-General’s application at [2]:
2.1Allowing the claim to proceed at this stage would be inappropriate and prejudicial as:
2.1.1the claim seeks declarations about a Bill currently before Parliament, which would constitute an improper interference with the proceedings of Parliament;
2.1.2 it would infringe the privileges of Parliament; and
2.1.3it would offend the principle of comity between the legislative and judicial branches of government.
2.2The prejudice to the plaintiffs in granting the stay, if any, is outweighed by the prejudice to the Parliamentary process in allowing the claim to proceed while the Bill is still being considered by the House of Representatives.
[9] In opposition to the application the plaintiffs say in essence:
(a) The declaration sought will not constitute any improper interference with the proceedings of Parliament; nor infringe its privileges; nor offend the principle of comity.
(b)The plaintiffs will suffer unjustifiable and unreasonable prejudice if they are unable to prosecute their claim forthwith in the absence of any compelling reason or principle requiring a stay.
(c) The Executive has withdrawn the KOS Bill from the House of Representatives and accordingly it is “no longer before Parliament” so there is no impediment to the plaintiffs’ claim progressing. That is so even though the Bill may be re-introduced or otherwise brought back before the House at some time in the future.
(d)The Court’s decision whether to grant or not grant the relief sought is not precluded by “the mere presence of legislation in the House”.
(e) This case is distinguishable from the High Court decision in Te Ohu
Kai Moana v Attorney General2 but analogous to and supported by other authorities.
2 Te Ohu Kai Moana Trustee Ltd v Attorney-General [2016] NZHC 1798, [2016] NZAR 1169.
Submissions
Attorney-General’s submissions
[10] The overarching submission on behalf of the Attorney-General is that the plaintiffs’ proceeding plainly challenges the validity of a bill presently before the House. Consequently the plaintiffs’ proceeding runs foul of the privileges of Parliament and the principle of comity.
[11] Citing Te Runanga o Wharekauri Rekohu Inc v Attorney-General3 for its description of the established principle of non-interference by the courts in proceedings in Parliament Ms Hardy submitted three principal propositions are to be drawn from the Court of Appeal’s decision:
(a) The proper time to challenge legislation (if at all) is after enactment.
(b)It is wrong for the courts to dictate, by declaration or otherwise, what should be put before Parliament to consider.
(c) Public policy requires that Ministers and Parliament are free to determine what will be put before the House of Representatives for consideration.
[12] Ms Hardy also cited familiar passages from Westco Lagan v Attorney- General4 in which McGechan J observed that, whether a matter of jurisdiction or practice, the principle of non-interference by the courts was a constitutional boundary to observe.
[13] Ms Hardy strongly disagreed with Mr Castle’s analysis of the Court of Appeal decision in Thompson v Treaty of Waitangi Fisheries Commission and his characterisation of that judgment as involving a close examination of a bill before
the House.5
3 Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) at 307–308.
4 Westco Lagan v Attorney-General [2001] 1 NZLR 40 (HC) at [95]–[100].
5 Thompson v Treaty of Waitangi Fisheries Commission [2005] 2 NZLR 9 (CA).
[14] Finally, in reference to Te Ohu Kai Moana Trustee Ltd, Ms Hardy submitted the present case engages, even more squarely, the principle of comity. The statement of claim pleads the establishment of the Sanctuary, through the KOS Bill, would breach NZBORA rights. The claim, therefore, directly invites judicial comment on the propriety of the KOS Bill while it is before the House.
Plaintiffs’ submissions
[15] Mr Castle, counsel for the plaintiffs, submitted the courts will engage in assessments of bills before the House without being troubled by the principle of comity. Mr Castle placed great reliance on the Court of Appeal decision in Thompson v Treaty of Waitangi Fisheries Commission as demonstrating the point. Mr Castle submitted that, at the time of the Court of Appeal’s detailed consideration of the Māori Fisheries Bill, that Bill was before a select committee.
[16] Mr Castle chided the Crown for failing to refer to Thompson and for the stance it takes in this case when it took no such similar position in Thompson. Mr Castle characterised the “Crown’s silence over Thompson [as] revealing” and its inconsistency of approach as “stark”. Counsel submitted that in Thompson not only did the Crown not challenge the proposition that the Court could scrutinise the precise wording of a bill before Parliament it “invited the Court’s consideration of, comment upon and seemingly, endorsement of, certain provisions contained in the [b]ill then before the Parliamentary Select Committee”.
[17] Mr Castle drew support from a number of cases for the proposition that the courts will engage in an assessment of where, on a spectrum, a proceeding sits and whether it crosses the line. Relying, in particular, on Te Ohu Kai Moana Trustee Ltd Mr Castle inferred from France J’s observations, and from Thompson, a clear and recent willingness by the courts to engage in the most careful consideration of the provisions of a bill before Parliament for the purpose of declarations.
[18] Mr Castle was concerned to emphasise the plaintiffs do not seek to challenge or undermine the important principle of comity; the plaintiffs “do not seek from the Court some form of prohibition upon the Crown introducing a [b]ill into
Parliament”. Counsel submitted the plaintiffs seek no relief that would dictate, by
declaration or otherwise, what should or should not be placed before Parliament.
Principles
[19] As Mr Castle submitted “in law” context is everything. There is an extensive body of jurisprudence concerning the established principles of non-interference by the courts in parliamentary proceedings. The principles are well established.
[20] Article 9 of the Bill of Rights 1688 precludes any court from impeaching or questioning the freedom of speech and debates or proceedings in Parliament.
[21] In addition to article 9 there is a wider principle supported through a long line of authority: “that the Courts and Parliament are both astute to recognise their respective constitutional roles”.6 This is the principle of comity. Delivering the judgment of their Lordships in Prebble v Television New Zealand Ltd, Lord Browne- Wilkinson described the way in which the courts give effect to the comity principle:7
So far as the Courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges.
[22] Citing from Blackstone’s commentaries Lord Browne-Wilkinson added:8
… the whole of the law and custom of parliament has its original from this one maxim, ‘that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere’.
[23] In Boscawen v Attorney-General the Court of Appeal noted the considerable uncertainty about the meaning of article 9, especially about the scope of the term
“proceedings in Parliament” discussed in earlier Court of Appeal decisions.9
6 Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC) at 7.
7 At 7 referring to Burdett v Abbot (1811) 14 East 1; Stockdale v Hansard (1839) 9 Ad & El 1;
Bradlaugh v Gossett (1884) 12 QBD 271; British Railways Board v Pickin [1974] AC 765;
Pepper (Inspector of Taxes) v Hart [1993] AC 593.
8 William Blackstone Commentaries on the Laws of England (17th ed, Collins & Hannay, 1830)
vol 1 at 163.
9 Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229 at [26] referring to
Buchanan v Jennings [2002] 3 NZLR 145 (CA) at [19]–[24].
[24] Any such uncertainty has been clarified by the enactment of the Parliamentary Privilege Act 2014. The Act came into force on 8 August 2014. The Act provides the statutory basis for the privileges enjoyed by the House of Representatives and, sitting alongside the Constitution Act 1986 and the Electoral Act 1993, forms part of New Zealand’s constitutional framework. In its report on the Parliamentary Privilege Bill the Privileges Committee stated that the importance of the Bill “for our country and parliamentary democracy should not be
understated”:10
Parliamentary privilege is one of the building blocks of our democracy; it is the cornerstone of an effective Parliament, and protection of parliamentary privilege safeguards democracy itself.
[25] The scope of parliamentary privilege is clarified by the Act. Indeed its clarification is one of the main purposes of the Act. As s 3 provides:
3 Purposes of the Act
(1) The main purposes of this Act are to—
(a) reaffirm and clarify the nature, scope, and extent of the privileges, immunities, and powers exercisable by the House of Representatives, its committees, and its members; …
[26] Crucially, the Act avoids comprehensive codification of parliamentary privilege.11
[27] Section 4 provides guidance as to how the Act is to be interpreted. The Act must be interpreted in a way that:12
(a) promotes its main and subsidiary purposes; and
(b) promotes the principle of comity that requires the separate and independent legislative and judicial branches of government each to recognise, with the mutual respect and restraint that is essential to their important constitutional relationship, the other’s proper sphere of influence and privileges; and
(c) ensures privileges, immunities, and powers of the House of Representatives, its committees, and its members are exercisable for the purpose stated in section 7.
10 Parliamentary Privilege Bill 2013 (179-2) (select committee report) at 2.
11 Parliamentary Privilege Act 2014, s 3(2)(a).
12 Section 4.
[28] The privileges, immunities and powers exercisable by the House, committees and members are recognised in s 8(1) and are declared to be part of the laws of New Zealand.13 All courts and persons acting judicially must take judicial notice of the privileges, immunities and powers held, enjoyed and exercised by the House, its committees and its members.14
[29] Section 11 is key to this proceeding. Section 11 is in subpart 2 of the Act which reaffirms and clarifies aspects of article 9 of the Bill of Rights 1688 and defines proceedings in Parliament. Section 11 clarifies the scope of prohibited impeaching or questioning of proceedings in Parliament, in court or tribunal proceedings. Section 11 provides:
11 Facts, liability, and judgments or orders
In proceedings in a court or tribunal, evidence must not be offered or received, and questions must not be asked or statements, submissions, or comments made, concerning proceedings in Parliament, by way of, or for the purpose of, all or any of the following:
(a) questioning or relying on the truth, motive, intention, or good faith of anything forming part of those proceedings in Parliament:
(b) otherwise questioning or establishing the credibility, motive, intention, or good faith of any person:
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament:
(d) proving or disproving, or tending to prove or disprove, any fact necessary for, or incidental to, establishing any liability:
(e) resolving any matter, or supporting or resisting any judgment, order, remedy, or relief, arising or sought in the court or tribunal proceedings.
[30] While I appreciate counsels’ detailed submissions directed to many
authorities ultimately the question I must decide is to be determined not by reference
to previously decided cases, but by a close consideration of the plaintiffs’ statement
13 Section 8(2).
14 Section 8(3) and s 5, definition of “exercisable”.
of claim, the relief it seeks and whether the proceeding infringes parliamentary privilege.
[31] Accordingly, I now turn to the application of the principles to this proceeding.
Analysis
[32] The plaintiffs ask the court to declare that the establishment of the Sanctuary is inconsistent with the plaintiffs’ NZBORA rights. The plaintiffs claim their rights and freedoms are breached, or offended in one or more of the respects particularised at [15] of its statement of claim. The particulars at [15](c)–(f) are these:
[15](c) Under BORA the plaintiffs have a right to be secure against unreasonable seizure of their property and otherwise (s 21); but the establishment of [the Sanctuary] in which all fishing is prohibited effects the seizure of the plaintiffs’ property rights.
[15](d) Under BORA the plaintiffs have a right to freedom of movement associated with their rights and freedoms (including development rights) and responsibilities for protection and utilisation of natural resources over and with which they have a special relationship as an incident of rangatiratanga and kaitiakitangi recognised by the Treaty of Waitangi (s 18(1)); but this right and freedom is removed by the establishment of [the Sanctuary] under the Bill.
[15](e) For the purposes of BORA the plaintiffs as Treaty fisheries settlement beneficiaries belong to an ethnic minority in Aotearoa New Zealand with rights and freedoms not to be denied including their right to enjoy their culture and their cultural rights to enjoy and exercise their customary commercial fisheries rights following the allocation of those rights as Treaty [f]isheries [s]ettlement rights by legislation in 1992 and 2004 (s 20); but the establishment of the Sanctuary denies these rights and freedoms of, and to, the plaintiffs.
[15](f) BORA requires the Crown to protect and promote the plaintiffs’ rights to the observance of the principles of natural justice by the Executive and by agencies and ministries of the Crown as public authorities with the power to make determinations in respects of the plaintiffs’ rights and interests, including as Treaty [f]isheries [s]ettlement rights holders and beneficiaries which are protected and recognised by, inter alia, the 1992 and 2004 statutes; but the establishment of [the Sanctuary] denies the plaintiffs these rights.
[33] I am in no doubt that the plaintiffs’ proceeding engages s 11.15 The claims that the Sanctuary infringes the plaintiffs’ rights to be secure against unreasonable seizure of property,16 their right to freedom of movement,17 their rights as ethnic minorities to enjoy their culture,18 and their right to natural justice19 cannot be assessed without a critical examination of the KOS Bill presently before the House.
[34] Ms Hardy submitted the proceeding infringes parliamentary privilege and the principle of comity in a way that cannot be unpicked by an analysis of the authorities upon which the plaintiffs rely. I accept that submission.
[35] The statement of claim, were it permitted to proceed, requires the Court to call into question the effect of the KOS Bill in order to determine whether the marine protected area which is to be established by the legislation:
(a) offends the provisions and principles of the Treaty of Waitangi;
(b)offends and breaches fiduciary duties and a duty of good faith owed by the Crown to the plaintiffs under the Treaty of Waitangi;
(c) offends and undermines the integrity of the Deed of Settlement dated
23 September 1992;
(d)offends and undermines the integrity of the New Zealand quota management system;
(e) offends and extinguishes the plaintiffs’ property rights (commercial
fisheries ITQ rights) without consent or compensation;
(f) offends and extinguishes the plaintiffs’ rights to receive quota in new
fisheries currently outside the quota management system; and
15 Section 11 is set out above at [29].
16 New Zealand Bill of Rights Act 1990, s 21; statement of claim [15](c).
17 Section 18(1); statement of claim [15](d).
18 Section 20; statement of claim [15](e).
19 Section 27; statement of claim [15](f).
(g)offends and is inconsistent with the obligations of the Crown under law pursuant to either or both of the United Nations Declaration on the Rights of Indigenous Peoples and the United Nations Convention on the Law of the Sea.
[36] As such, the plaintiffs’ claim constitutes an unambiguous questioning of a proceeding in Parliament. The plaintiffs’ claim engages s 11 because:
(a) it is a proceeding in a court; and
(b)the claim cannot be determined without evidence being offered or received, or questions asked or statements, comments or submissions being made concerning the KOS Bill (a “proceeding in Parliament”) for the purpose of supporting the relief sought in the plaintiffs’ claim.
[37] The plaintiffs’ position is that their proceeding does not intervene in the legislative process. Mr Castle submitted the plaintiffs do not resist the existence or importance of the principle of comity; the “case does not either challenge or undermine it”. Mr Castle further submitted the case had been “very carefully pleaded” so that the proceeding did not cross the line into the realm of parliamentary privilege and the relief sought did not go to the heart of the Bill. The Executive and Parliament would remain free to respond as they wish to any declaration of inconsistency the court may make.
[38] Whether a court proceeding encroaches on the privileges of Parliament, or invites a breach of the comity principle, is not a question whose answer lies in Parliament’s ostensible option of ignoring a judicial declaration. The submission itself invites transgression of the constitutionally fundamental principle of comity requiring the legislative and judicial branches of government to approach with mutual respect and restraint the other’s proper sphere of influence and privilege.20
[39] Nor is any consideration of relative prejudice pertinent to an assessment of
the plaintiffs’ claim and whether the claim amounts to an impeachment or
20 Parliamentary Privilege Act, s 4(1)(b).
questioning of proceedings in Parliament.21 To draw on a passage from
Parliamentary Practice in New Zealand:22
The question is solely one of statutory interpretation of the words “proceedings in Parliament” and “impeached or questioned”, as those words appear in article 9. The Parliamentary Privilege Act 2014 reinforces this approach by enacting an extended definition of the words “proceedings in Parliament” and elucidating the meaning of “impeached or questioned” … The law now positively discourages something that commentators earlier observed, “a disturbing trend of substituting common law reasoning for ordinary processes of statutory interpretation in applying art 9”.
[40] The submission that the Court is not being invited to dictate what should or should not be placed before Parliament, and that Parliament remains free to ignore any declaration the Court may make, misconceives the nature of parliamentary privilege and what constitutes a crossing of the line by the courts into the sphere of exclusive cognisance which Parliament has in respect of its own proceedings.
[41] The sanctuary does not yet exist. It will be established only if the KOS Bill becomes an Act. While the Bill remains on the Order Paper listing the business of the House it is not correct to say it has been withdrawn from the House. Well-intended it may be but it is sophistry to suggest the Court may assess alleged impacts on rights flowing from the establishment of the Sanctuary without engaging in an examination of the legislative instrument without which the Sanctuary does not exist.
[42] No matter how carefully pleaded, a proceeding that engages s 11 unambiguously falls within the scope of prohibited impeaching or questioning of
proceedings in Parliament.
21 One of the grounds upon which the application for a stay is advanced is that any prejudice to the plaintiffs in granting a stay is outweighed by the prejudice to Parliament in permitting the claim to proceed while the Bill is before the House of Representatives.
22 David McGee Parliamentary Practice in New Zealand (4th ed, Oratia Books, Auckland, 2017)
at 708.
Result
[43] The Attorney-General’s application is granted. The plaintiffs’ proceeding is stayed until such time as the KOS Bill is no longer before the House of Representatives.
[44] As the successful party the Attorney-General is entitled to costs. Ms Hardy submitted there may be a basis for an award of solicitor-client costs in light of the similar unsuccessful challenge in Te Ohu Kai Moana proceeding and, because the plaintiffs declined to agree to a stay of the proceeding, the Attorney-General was obligated to file this application. If the parties are unable to agree costs they may file focussed memoranda of no more than five pages within 15 working days of this
judgment.
Karen Clark J
Solicitors:
Wilkinson Rodgers, Dunedin for Plaintiffs
Crown Law Office, Wellington for Defendant
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