Ngāti Mutunga O Wharekauri Asset Holding Company Ltd v Attorney-General
[2020] NZCA 2
•29 January 2020 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA640/2017 [2019] NZCA 2 |
| BETWEEN | NGĀTI MUTUNGA O WHAREKAURI ASSET HOLDING COMPANY LIMITED |
| AND | ATTORNEY-GENERAL |
| Hearing: | 21 February 2019 |
Court: | Brown, Gilbert and Williams JJ |
Counsel: | T J Castle and T A Castle for First and Second Appellants |
Judgment: | 29 January 2020 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe claim is struck out.
CThe respondent is entitled to costs on a band A basis certified for second counsel with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Williams J)
Introduction
The function of the courts in New Zealand is to resolve disputes by adjudicating on the rights of litigants and, if necessary, to grant remedies, including declarations, about those rights. Can the courts make declarations about the rights consistency of bills before the House of Representatives? If they cannot, are they nonetheless able to adjudicate upon and make declarations about rights alleged to have been compromised by the policy underlying bills?
Facts
On 8 March 2016, the Government introduced into the House of Representatives the Kermadec Ocean Sanctuary Bill (the KOS Bill).[1] By its terms, a new marine sanctuary covering 620,000 square kilometres of the South Western Pacific is to be established (the Sanctuary).[2] It is to be centred on the Kermadec Islands (or Rangitāhua) and to extend out to the edge of the north‑eastern portion of New Zealand’s exclusive economic zone.[3]
[1]Kermadec Ocean Sanctuary Bill 2016 (120–1).
[2]Clause 8.
[3]See sch 2.
This area coincides with Fisheries Management Area 10 (FMA 10), an area established under the Fisheries Act 1996 within which New Zealand’s system of fishing quota management applies. If enacted, the effect of the KOS Bill will be to prohibit all fishing within FMA 10.[4]
[4]Clause 9(2)(a).
By the terms of the Māori Fisheries Deed of Settlement 1992 (the 1992 Settlement Deed), given effect by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, iwi are entitled to 20 per cent of any new fishing quota the government decides to issue when it introduces new species into the quota management system. FMA 10 is very remote. It is not currently commercially fished. Notwithstanding this, the Minister of Fisheries allocated to Te Ohu Kai Moana Trustee Ltd (Te Ohu Kaimoana) (which for these purposes acts as a holding trustee for the eventual iwi recipients of parcels of quota) the equivalent in quota of 20 per cent of the total allowable catch within FMA 10. The details of the particular quota were not provided. The Crown no doubt made this allocation because of its obligations under the Deed of Settlement that allocated the quota to Te Ohu Kaimoana. The Government has indicated it does not intend to tender the remaining 80 per cent of the FMA 10 quota. Rather, it will retain that quota.
The appellants represent Ngāti Mutunga and Te Whānau a Apanui, iwi with an established entitlement to receive quota from Te Ohu Kaimoana when it comes to allocate it.
The claim
The essence of the appellants’ complaint is that the Sanctuary proposal will effectively confiscate their entitlements in FMA 10.[5] This proceeding follows a similarly‑structured challenge to the Sanctuary proposal which had been brought by Te Ohu Kaimoana.[6] It is useful background, therefore, to briefly outline the High Court’s treatment of that challenge.
[5]The appellants also argue that commercially valuable species capable of being fished within FMA 10 (albacore tuna and skipjack tuna) have not been brought into the quota management system by the government, so iwi have no quota in those valuable species. This was not a particular area of focus in their argument.
[6]Te Ohu Kai Moana Trustee Ltd v Attorney‑General [2016] NZHC 1798, [2016] NZAR 1169.
As in the present case, the Crown sought an interim stay pending enactment of the KOS Bill. It was granted by Simon France J in the High Court. The Judge reasoned that because the Sanctuary could only be created by legislation, any challenge to the Crown’s proposal to establish it could only be a challenge to the Bill itself and that was impermissible.[7]
[7]At [29].
The Judge did accept that some aspects of the challenge were “capable of exploration”.[8] The comity principle, he said, should not be seen as banning any judicial consideration of “all related issues”.[9] Crucially, however, the Judge concluded that there had been no application to sever the aspects of the case that did not amount to a challenge to the KOS Bill and so a stay of the entire proceeding was appropriate.[10]
[8]At [27].
[9]At [24].
[10]At [27].
As presently constituted, the appellants’ proceeding seeks a declaration that the establishment of the Sanctuary and the proscription of fishing within it breach rights and freedoms guaranteed to them under the New Zealand Bill of Rights Act 1990 (BORA) — in particular, the right to be free from unreasonable seizure of their property,[11] the right to freedom of movement,[12] the right to enjoy their culture,[13] and the right to observance of the principles of natural justice.[14] Further, the appellants argue that the Sanctuary breaches the provisions and principles of the Treaty of Waitangi (the Treaty), including the Crown’s fiduciary obligation and duty of good faith; breaches the 1992 Settlement Deed and its implementing Act; undermines New Zealand’s quota management system and the rights held by the appellants under it; and is inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples[15] and the United Nations Convention on the Law of the Sea.[16] It will be seen that although the focus is on BORA rights, the appellant argues that these rights are to be seen in the context of a deeper matrix of rights, and particularly indigenous rights.
[11]Section 21.
[12]Section 18.
[13]Section 20.
[14]Section 27.
[15]United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007).
[16]United Nations Convention on the Law of the Sea 1833 UNTS 3 (opened for signature 10 December 1982, entered into force 16 November 1994).
In the High Court the Crown sought an interim stay of the proceedings “until such time as the Kermadec Ocean Sanctuary Bill is no longer before Parliament”. The order was sought on the grounds that the claim constituted an improper interference in the proceedings of the House, would infringe the House’s privileges and offend the principle of comity between the legislative and judicial branches.
The Crown also filed a draft statement of defence in which its primary pleading was that it had no obligation to plead to the alleged breaches of rights, but nonetheless denied the allegations that the KOS Bill would breach the appellants’ rights.
The High Court judgment
In the High Court, Clark J granted the Crown’s application for an interim stay.[17] The essence of the Judge’s reasoning was that the appellants’ challenge was prohibited by s 11 of the Parliamentary Privilege Act 2014.[18] That section provides as follows:
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.
[17]Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General [2017] NZHC 2482, [2018] NZAR 18.
[18]See [33]–[42].
The Judge held that the claim was “an unambiguous questioning of a proceeding” in the House.[19] This was because the claim alleged rights breaches which cannot be determined without questioning the effect of the KOS Bill, which was a proceeding in Parliament for the purposes of s 11.[20]
Submissions
[19]At [36].
[20]At [36].
The appellants argued that the challenge to the KOS Bill and the relief sought did not offend against s 11 of the Parliamentary Privilege Act. Rather, it was argued, the challenge was permissible in light of authority on the question of the extent to which courts are entitled to make findings about, and grant relief in relation to, proceedings before Parliament where they are relevant to a dispute. The appellants relied on the decision of the Supreme Court in Ngāti Whātua Ōrākei Trust v Attorney‑General.[21] Ngāti Whātua Ōrākei (Ngāti Whātua) brought proceedings against the Crown in relation to proposed Treaty settlements with other iwi who have claims in the greater Auckland area. Ngāti Whātua argued that certain redress on offer breached its ahi kā and mana whenua. The appellants focused particularly on the judgment of Elias CJ. They argued that the reasoning she employed was that the courts are entitled to enquire into legislative proposals without crossing into the legislature’s preserve, provided there was no question of coercive relief. For example, referring to the decisions in Comalco Power (New Zealand) Ltd v Attorney-General[22] and Te Runanga o Wharekauri Rekohu Inc v Attorney-General,[23] Elias CJ said:[24]
The Courts in these cases were not concerned with declarations of existing legal right without coercive effect as to what could be placed before Parliament. The reference in Te Runanga o Wharekauri Rekohu to declaration or damages or other relief is a reference to dictating what can be placed before Parliament. The case does not suggest that determination of present legal entitlement constitutes impermissible interference with proceedings in Parliament.
[21]Ngāti Whātua Ōrākei Trust v Attorney‑General [2018] NZSC 84, [2019] 1 NZLR 116.
[22]Comalco Power (New Zealand) Ltd v Attorney-General [2003] NZAR 1 (HC).
[23]Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA).
[24]Ngāti Whātua Ōrākei Trust, above n 21, at [120].
The appellants also called in aid the decision of this Court in Thompson v Treaty of Waitangi Fisheries Commission where the Court in effect considered whether there was inconsistency between the 1992 Settlement Deed and the Māori Fisheries Bill 2003 then before the House.[25] While the Court made no formal declarations,[26] a majority was prepared to comment extensively on whether the proposed allocation model, which would be given effect by legislation, was consistent with the 1992 Settlement Deed.[27] The Court’s decision was issued in June 2004. The majority noted that the Parliamentary Select Committee was due to report back to the House on the Māori Fisheries Bill the following month. It can be inferred that the judgment was timed to ensure the Select Committee could take proper account of it.
[25]Thompson v Treaty of Waitangi Fisheries Commission [2005] 2 NZLR 9 (CA).
[26]At [196].
[27]At [173]–[195].
For the Crown, it was submitted that the terms of s 11 precluded the bringing of the appellants’ claim in its current form. The Crown cited a number of decisions in which “the principle of non-interference” had been articulated and applied.[28] It argued further that subsequent authorities including Ngāti Whātua and Thompson were in fact consistent with the claim in this case being stayed until the legislation is enacted.
Analysis
[28]Te Runanga o Wharekauri Rekohu, above n 23, at 308; Westco Lagan Ltd v Attorney‑General [2001] 1 NZLR 40 (HC) at [98]; and New Zealand Maori Council v Attorney‑General [2007] NZCA 269, [2008] 1 NZLR 318 at [46], [51]–[52] and [60].
On any reading of the Parliamentary Privilege Act, the courts do not have jurisdiction to make declarations of inconsistency between BORA (or indeed any other) rights and Bills before the House.
The scope of the Parliamentary Privilege Act
Section 3 sets out the purposes of that Act. The main purposes are to reaffirm and clarify the nature, scope, and extent of parliamentary privileges and immunities and to ensure the proceedings in Parliament and communications or documents relating to such proceedings are adequately protected from civil and criminal liability.[29] The subsidiary purposes of the Act focus particularly on art 9 of the Bill of Rights 1688 and on overruling the decision of the Supreme Court in Attorney-General v Leigh, which took a relatively narrow view of what amounted to “proceedings in Parliament”.[30]
[29]Section 3(1).
[30]Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713.
Section 4(1)(b) provides that the Parliamentary Privilege Act must be interpreted in a way that:
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 …
We have already set out s 11. Its effect is that no court may receive evidence, statements, submissions, or comments concerning proceedings in Parliament for the purpose of engaging with the truth, motive, intention, or good faith of any aspect of those proceedings; or with the credibility, motive, intention or good faith of any person connected with them; or to draw inferences or conclusions from them; or to prove or disprove any fact in order to establish liability; or to support or resist any judgment or relief.
Section 10 provides a wide and inclusive definition of what amounts to “proceedings in Parliament”. It relevantly provides as follows:
10Proceedings in Parliament defined
(1) Proceedings in Parliament, for the purposes of Article 9 of the Bill of Rights 1688, and for the purposes of this Act, means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of the House or of a committee.
(2) The definition in subsection (1) must be taken to include the following:
(a) the giving of evidence (and the evidence so given) before the House or a committee:
(b) the presentation or submission of a document to the House or a committee:
(c) the preparation of a document for purposes of or incidental to the transacting of any business of the House or of a committee:
(d) the formulation, making, or communication of a document, under the House’s or a committee’s authority (and the document so formulated, made, or communicated):
(e) any proceedings deemed by an enactment to be (or a thing said or produced, or information supplied, in an inquiry or proceedings, if an enactment provides the thing or information is privileged in the same way as if the inquiry or proceedings were) for those purposes proceedings in Parliament.
(3) In determining under subsection (1) whether words are spoken or acts are done for purposes of or incidental to the transacting of the business of the House or of a committee, words spoken or acts done for purposes of or incidental to the transacting of reasonably apprehended business of the House or of a committee must be taken to fall within subsection (1).
…
Since “document” is defined in s 5 to include anything containing writing, s 10(2)(b), (c) and perhaps (d) all confirm that the preparation of and introduction into the House of a bill is a “proceeding in Parliament”. The overall effect of these two sections is therefore that no Court may receive evidence or hear submissions about a bill intended to:
(a)question the intention of the Bill or a person associated with it;[31] or
(b)invite the drawing of any inference about the meaning or effect of such Bill;[32] or
(c)seek some form of relief in relation to the Bill.[33]
[31]Parliamentary Privilege Act 2014, s 11(a)–(b).
[32]Section 11(c).
[33]Section 11(e).
The proceedings as currently drafted offend each of these three heads. They require an inquiry into the intention of the KOS Bill and of the Prime Minister (“a person associated” with the Bill) in advancing it; they require the Court to draw inferences about the effect of the Bill on the rights pleaded; and they seek declaratory relief in relation to the rights consistency the Bill’s terms and purposes.
The authorities
While the majority of the Supreme Court in the Ngāti Whātua decision sounded “a note of caution” about undue judicial deference to parliamentary proceedings where the decisions in question are somewhat distant from, for example, the decision of a Minister or Cabinet to introduce a bill into the House, there was certainly no suggestion that it would be unduly deferential of the courts to refuse to enquire into the potential rights impact of a bill before the House.[34]
[34]Ngāti Whātua Ōrākei Trust, above n 21, at [46].
The caution from the majority in Ngāti Whātua related to a question about whether a challenged decision was outside the court’s purview simply because it might potentially be the subject of legislation in the future.[35] It is, the majority said, “the function of the courts to make declarations as to rights”.[36] The first four of six declarations sought by Ngāti Whātua related to the relevance of tikanga in the Treaty settlement process and the extent to which tikanga should affect the way the Crown dealt with other iwi in the Tāmaki isthmus. The relief was couched in broad and relatively abstract propositions unrelated to any particular settlement agreement between the Crown and other iwi.[37] Thus, the comity principle was not undermined, and those first four heads of relief remained. But the last two heads sought relief specific to actual land assets on the isthmus which were intended to be transferred to other iwi in proposed settlements. The majority struck those heads out.[38] That is because, the majority found, those aspects were specific to settlements which would inevitably be given effect by legislation.[39] This was despite the fact that no bills had been introduced into the House to give effect to these settlements.
[35]At [46].
[36]At [46].
[37]See [29(a)]–[29(d)].
[38]At [66].
[39]At [65]–[66] and [29].
The appellants called in aid the judgment of Elias CJ in Ngāti Whātua. Her focus was on “declarations of existing legal right”.[40] In particular, she considered that “[p]arliamentary freedom of debate and in its proceedings is unaffected by the judicial responsibility to hear and determine rights and interests protected by law”.[41] But, as we have noted, the Chief Justice referred to the High Court decision in Comalco Power.[42] There Comalco Power (New Zealand) Ltd claimed the introduction of price fixing legislation was an anticipatory breach of contract. The High Court Judge found that such claim could not be entertained in the courts.[43] The Chief Justice agreed that the High Court had been correct.[44] She was clear that this would have offended against the principle discussed by Cooke P in Te Runanga o Wharekauri Rekohu. It was an attempt to “dictate, by declaration or a willingness to award damages or any other form of relief, what should be placed before Parliament”.[45] The Chief Justice did not go so far as to find that it is open to the courts to make declarations about the rights‑consistency of draft legislation before the House.
[40]At [120]; see also [119].
[41]At [119].
[42]Comalco Power, above n 22.
[43]At 17.
[44]Ngāti Whātua Ōrākei Trust, above n 21, at [120].
[45]At [120], citing Te Runanga o Wharekauri Rekohu, above n 23, at 308.
The simple point is, courts may declare rights, and these may relate to the rights‑consistency of government action, and even proposed government action. But they may not relate to the rights‑consistency of proposed legislation. For example, a government proposal to exercise an existing lawful power in a particular way may be the subject of court declarations. The difficult area is where the proposed government action is really a proposal to legislate. In principle, declaratory proceedings of this nature are simply not permitted. The point at which a government proposal crystallises into what is in substance a proposal to legislate may be a matter for debate. But it is not one that needs to be resolved in this case.
The Thompson case also related to Māori fisheries allocation.[46] The appellants are correct that the Court in that case was prepared to discuss in some detail the consistency between the 1992 Settlement Deed and the Māori Fisheries Bill which was to implement the allocation of quota to iwi. Specifically, the majority were prepared to criticise the size of a fund proposed to be set aside for urban Māori interests, and the degree of discretion iwi could exercise over the future of the fund.[47] But the majority still considered it inappropriate to make any declarations about the Bill.[48] Hammond J in dissent considered that the Court should not be engaged at all in an enquiry in which Parliament is also separately engaged.[49]
[46]Thompson, above n 25.
[47]At [179]–[180], [184]–[185] and [187]–[189].
[48]At [196].
[49]At [237].
That said, there was an important difference between that case and the present appeal. There, Te Ohu Kaimoana (as then constituted) had prepared an allocation proposal in accordance with the 1992 Settlement Deed. It had then asked the House to enact it, in order to end inter-iwi litigation around it. The declarations the plaintiffs sought were primarily against Te Ohu Kaimoana’s proposal rather than the Māori Fisheries Bill. Thus, the draft legislation had some of the characteristics of a private bill.
But the important point is that Thompson predates the Parliamentary Privilege Act. Had that case arisen today, the Court would plainly have been precluded by s 11 from inquiring into the subject matter of the Māori Fisheries Bill or granting relief in respect of it. Whether the same would have applied to Te Ohu Kaimoana’s proposal prior to obtaining government support for it, or whether it would have been unduly deferential to refuse to consider it in those circumstances are not matters we need to express a view on in this appeal.
Given the majority’s reticence on those facts, it must follow that to the extent the proceeding in this case asks the Court to inquire into and grant relief in respect of a bill actually before the House, it cannot be allowed to proceed.
The special position of BORA rights
The appellants place particular emphasis on the expected impact of the Sanctuary on their BORA rights. But the fact that the relief sought in respect of a bill relates to BORA rights does not alter the position. As we have noted, s 4(1)(b) of the Parliamentary Privilege Act refers to the principle of comity between the “separate and independent legislative and judicial branches of government”. One of the legislature’s functions is to consider, debate and enact legislation. Where the Attorney‑General considers any bill before the House to be inconsistent with BORA rights and freedoms, s 7 of BORA requires the Attorney‑General to advise the House accordingly. Standing Order 265 provides a special procedure by which the Attorney‑General must discharge this responsibility. As this Court found in Boscawen v Attorney‑General, the only means by which a bill’s BORA consistency may be considered is by way of the Standing Order 265 procedure.[50] The prospect that both the Attorney‑General and the courts might simultaneously be engaged in the same inquiry, including the risk they might disagree, demonstrates why in practical terms, the comity principle affirmed in the Parliamentary Privilege Act would be squarely engaged. The appellants’ claim in this case requires exactly that kind of parallel inquiry.
Declarations of right
[50]Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229 at [39]. See also Awatere Huata v Prebble [2004] 3 NZLR 359 (CA) at [55].
That said, the reasoning of both the majority and Elias CJ in Ngāti Whātua is consistent with the proposition that the courts may make declarations of existing right, interest or entitlement whether or not there is a bill before the House which may affect them in some way. Such relief is not “in relation to parliamentary proceedings”, in the sense provided for by in the Parliamentary Privilege Act. It does not amount to an interference by the courts in Parliament’s “proper sphere of influence and privileges” because such declarations would be about existing rights, interests or entitlements, and not what Parliament may be proposing to do in relation to them.[51] The terms of s 4(1)(b) of the Parliamentary Privilege Act are apposite here. Comity is a principle of “mutual respect and restraint” between the legislative and judicial branches as to their respective constitutional functions.[52] It is the function of courts to adjudicate on rights and entitlements.
[51]Parliamentary Privilege Act, s 4(1)(b).
[52]Section 4(1)(b) (emphasis added).
In very different circumstances, the English courts have adopted a similar approach. For example, in Willow Wren Canal Carrying Co Ltd v British Transport Commission, the English High Court refused to stay a proceeding commenced by a canal barge company against the canal owner, despite the fact that there was a bill before the House relieving the owner of the very duties upon which the plaintiff based its suit.[53] The canal owner argued that even if the injunction sought were granted, the Judge would be required to suspend it until the legislative process had taken its course.[54] Upjohn J said this:[55]
A preliminary objection is taken to [the defendant’s application for stay], which is fatal to that application; and it is that, sitting in this court, it is my duty to see that litigants have their cases tried, as they are entitled to, and that I cannot take into account the possible effect of some Bill now before Parliament which, if passed into law in its present form, may have some effect upon the rights of the parties. That seems to me to be a correct formulation of the law. This court is not concerned with what Parliament may think it wise to do in relation to the rights of parties, but the plaintiffs are entitled to come to this court and say, “In the normal course of events our action will very soon be ripe for hearing. We desire that the court should hear it.”
Of course, if subsequently to that Parliament in its wisdom by some enactment affects the rights of the parties even to the extent of modifying or abrogating the effects of any judgment which the plaintiffs may be fortunate enough to obtain, no one doubts the right and power of Parliament to do so. But it is plain that it is not right for this court either now or at the hearing to take into account the possible effect of some Bill at present before Parliament which, so far as this Court is concerned, may never be passed into law at all, or, if passed into law, may ultimately contain provisions which do not affect the rights of the parties before the court at all. In other words, it is a matter of speculation on which this court will not embark as to whether a Bill at present before Parliament will be passed into law in its present form.
[53]Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 WLR 213 (Ch).
[54]At 215.
[55]At 215–216.
The Judge went on to note that “[a]uthority is not wanting for that proposition”.[56] That decision has something of the flavour of the interlocutory decision of Beattie J in Fitzgerald v Muldoon,[57] where Mr Fitzgerald sought to challenge the lawfulness the Prime Minister’s announcement purporting to suspend statutory obligations. The Judge found that the fact that a bill would shortly be brought before the House to give effect to that announcement did not preclude granting Mr Fitzgerald a fixture to hear the case.[58]
Hypothetical declarations
[56]At 216, citing Attorney-General v Racecourse Betting Control Board [1935] Ch 34 (CA); and at 217, citing British and Colonial Furniture Co Ltd v William McIlroy Ltd [1951] 1 TLR 295 (CA).
[57]Fitzgerald v Muldoon SC Wellington A118/76, 19 May 1976.
[58]At 4–5.
The Crown then argued that the appellants’ claim should still be stayed even if they amended it to meet the above principles. If they removed reference to the KOS Bill, the claim would be rendered hypothetical because it would be “dangerously untethered to facts”. Further, the only government action relevant to any question of Ngāti Mutunga’s fishing rights in this case was legislative.
We do not think the position is quite that straightforward. In light of the terms of the Crown’s draft statement of defence in this case, the existence of at least some of the rights said to be vested in the appellants are contested. Relevant facts would relate not to the legislation but to whether the rights are made out. They might include the background to the 1992 settlement, the nature of the mana and kaitiakitanga rights of Ngāti Mutunga, and so forth. It could not thus be said that the proceeding was untethered to facts. The proceeding would not necessarily therefore be rendered academic or theoretical if the KOS Bill is no longer the centre piece of the claim.
Indeed, as the learned authors of The Declaratory Judgment have stated, even if an application for declarations does raise merely hypothetical questions for consideration of the court, that is not of itself a basis for declining jurisdiction (or in the present case granting a stay for the lack of it).[59] Rather, it may be a ground for the court choosing to exercise its discretion not to grant the relief sought, all other things considered.[60]
Repleading
[59]Lord Woolf and Jeremy Woolf The Declaratory Judgment (4th ed, Sweet & Maxwell, London, 2011) at [4–36].
[60]See for example Ching Garage Ltd v Chingford Corp [1960] 1 WLR 947 (CA) at 955.
Following our hearing, and in light of the foregoing principles which were traversed with counsel at the hearing, the appellants were invited to take the opportunity to provide a draft recasting of their claim for our further consideration. They filed a draft amended statement of claim. We turn now to consider that.
A single proposed new cause of action was pleaded to shift focus from the KOS Bill to prior ministerial action. It pleaded the rights inconsistency of the announcement of 29 September 2015 of the then Prime Minister that New Zealand would create an ocean sanctuary in FMA 10. The draft claim then pleads:
Any and all acts or omissions of the Crown prohibiting fishing and accompanying access by the plaintiffs and Iwi Māori to all the rights pleaded herein expropriates, offends against, undermines or otherwise fails to honour and protect all the rights and freedoms identified …
This proposed repleading fails to correct the flaw in the primary pleading, and indeed introduces a further flaw.
The further flaw is that the Crown, even on the appellants’ pleading, does not itself prohibit Māori from fishing in FMA 10. Only Parliament can do that because it requires an amendment to the law that currently applies to fishing in that fishery management area. Unlike the press statement in question in Fitzgerald v Muldoon, the Prime Minister did not declare on 29 September 2015 that commercial fishing in FMA 10 is prohibited with immediate effect. Rather, he announced that legislation would be brought forward to give effect to such prohibition. The announcement challenged as to its legality was not an act prohibiting fishing as pleaded, and never purported to be.
That brings us to the primary flaw in the pleading. It is the same flaw identified by this Court in Te Runanga o Wharekauri Rekohu.[61] The Prime Minister’s announcement referred to in the amended pleading was in reality an announcement that the government intended to legislate for the stated outcome. As this Court said in Te Runanga o Wharekauri Rekohu, the courts will not make declarations purporting to interfere in the government’s legislative agenda. If there were any doubt about the correctness of that proposition prior to 2014, such doubt is removed by the terms of ss 10 and 11 of the Parliamentary Privilege Act.
[61]Te Runanga o Wharekauri Rekohu, above n 23.
It follows that even a claim broadly on the recast terms proposed by the appellants cannot proceed.
We note finally that it may well have been possible for the appellants to replead their claim so as to focus entirely on their own rights and entitlements without reference to the proposed sanctuary, although we acknowledge that this would require them to walk a narrow and fine line in light of the authorities. The appellants have chosen not to avail themselves of that opportunity.
Appropriate relief
As mentioned, the Crown sought a stay of the proceedings pending enactment of the KOS Bill. But is a stay appropriate? It must be remembered that the claim relates to the KOS Bill not the KOS Act. Such claim can never be consistent with s 11. Whether a claim can be brought in respect of the KOS Act, should it be enacted, raises different issues. That would be a different claim in form and substance. Despite the fact that the Crown only seeks a stay, on reflection we consider that would not be appropriate. The correct response in terms of the Parliamentary Privilege Act is to strike the claim out.[62]
Result
[62]Court of Appeal (Civil) Rules 2005, r 48(4). See also High Court Rules 2016, r 15.1(1)(a).
The appeal is dismissed.
The claim is struck out.
The respondent is entitled to costs on a band A basis certified for second counsel with usual disbursements.
Solicitors:
Burley Attwood Law, Tauranga for First and Second Appellants
Crown Law Office, Wellington for Respondent
9
4
0