Ngati Paoa Trust Board v Attorney-General
[2021] NZHC 580
•19 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-000424
[2021] NZHC 580
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules AND
IN THE MATTER
of a decision of the Crown, through the Minister of Treaty of Waitangi Negotiations, to proceed to sign a Ngāti Paoa deed of settlement
AND IN THE MATTER
of a breach of contract
BETWEEN
THE NGĀTI PAOA TRUST BOARD (a
charitable trust incorporated as a Board under the Charitable Trusts Act 1957)
Applicant
AND
THE ATTORNEY-GENERAL
First Respondent
AND
THE NGĀTI PAOA IWI TRUST
Second Respondent
Telephone Conf: 19 March 2021 Appearances:
J D K Garner-Hopkins for the Applicant
J R Gough & M G A Madden for the First Respondent
T N Hauraki & M K Mahuika for the Second RespondentJudgment:
19 March 2021
Reissued:
22 March 2021
REASONS JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 19 March 2021 at 10.00pm and re-delivered by me on 22 March 2021 in accordance with High Court Rules 2016, r 11.10
…………………………
Registrar/Deputy Registrar
THE NGĀTI PAOA TRUST BOARD v THE ATTORNEY-GENERAL [2021] NZHC 580 [19 March 2021]
Introduction
[1] Tomorrow morning, on 20 March 2021, a ceremony is scheduled to be held at Wharekawa Marae, Kaiaua for the signature of the Deed of Settlement between the Crown and Ngāti Paoa (Deed of Settlement) that is intended to mark the culmination of negotiations between Ngāti Paoa and the Crown to settle Ngāti Paoa’s historic claims under the Treaty of Waitangi.
[2] The Ngāti Paoa Trust Board (Trust Board) has applied without notice for interim orders:
(a)Declaring that the Crown ought not to sign the Deed of Settlement;
(b)Prohibiting the Ngāti Paoa Iwi Trust (Iwi Trust) from signing the Deed of Settlement.
[3] The Trust Board asks that these orders be maintained until determination of the Trust Board’s application for judicial review of actions and decisions of the Crown and the Iwi Trust in relation to the negotiation of the Deed of Settlement as set out in the Trust Board’s statement of claim dated 15 March 2021.
[4] An affidavit sworn on 17 March 2021 by David Roebuck, Principal Officer of the Trust Board, and a memorandum of counsel dated 17 March 2021 were filed in support of the application.
[5] The Trust Board served its application on the Attorney-General and the Iwi Trust on a Pickwick basis.
[6] An affidavit sworn on 18 March 2021 by Hayden Te Hira Solomon, the Kaiārahi (Chief Executive) of the Iwi Trust, was filed in opposition to the application. Counsel for the Iwi Trust and the Crown filed memoranda dated 18 March 2021 in opposition to the application.
[7] An unsigned affidavit on behalf of Susan Leah Kiri Campbell, Regional Director, Te Waenga and Acting Regional Director, Te Raki in Te Kāhui Whakatau
within the Office for Crown – Maori Relations, Te Arawhiti, and a further memorandum from Crown counsel were filed in the morning of 19 March 2021.
[8] The application was heard by telephone conference at 1.15 pm on 19 March 2021. At the conclusion of the telephone conference, I indicated that I would not make the orders sought by the Trust Board and would issue my reasons for that decision as soon as possible.
Relevant background
[9] The following summary is drawn from the affidavits of Mr Roebuck, Mr Solomon and, in particular, that of Ms Campbell which was more comprehensive and more neutral in its portrayal of events. It also draws on Mr Gardner-Hopkins’ affidavit. Necessarily, it records only matters I consider relevant to deciding the application for interim orders. It is not a history of the negotiations between Ngāti Paoa and the Crown or of the actions, roles and responsibilities of the Trust Board and the Iwi Trust.
[10] Ngāti Paoa is an iwi which asserts mana whenua over land and waters of the Hauraki Gulf, including Waiheke Island, and whose members trace their descent from their tipuna, Paoa.
[11] In 2010, Glen Andrew (Joe) Tupuhi and Hauauru Eugene Raymond Rawiri were appointed interim negotiators for Ngāti Paoa in settlement negotiations with the Crown, following interim mandate hui attended by members of the Ngāti Paoa claimant community.
[12] In 2011, the Trust Board was mandated by Ngāti Paoa to negotiate with the Crown regarding the Ngāti Paoa Treaty settlement. In June 2011, the Crown recognised the mandate of the Trust Board. In July 2011, Mr Rawiri and Anthony Morehu Wilson were confirmed as mandated to represent Ngāti Paoa in Treaty settlement negotiations with the Crown.
[13] Through the period 2010 to 2013, the negotiators participated in settlement negotiations with the Crown and reached various agreements and settlements as steps
towards achieving a full and final settlement. These negotiations were taken under the umbrella of the Tāmaki Collective Framework Agreement signed by the Crown and iwi in the Tāmaki Makaurau and Hauraki regions.
[14] In 2013, the Iwi Trust was established as the Post Settlement Governance Entity for Ngāti Paoa following a process of discussion and consultation within Ngāti Paoa and the conduct of a Crown-approved ratification process.
[15] For a period from 2015 to 2016, the Trust Board was largely inactive, although the Trust Board says it continued to function. However, the terms of a number of trustees had expired and new elections were not held. In the meantime, the Iwi Trust took over effective responsibility for supporting the negotiations with the Crown.
[16]In March 2017, new trustees were elected to the Trust Board.
[17] In September 2017, the mandated negotiators initialled the Deed of Settlement of Settlement at Wharekawa Marae. The Iwi Trust also initialled the Deed of Settlement.
[18] Over the ensuing months, various efforts were made by the Crown and by the Trust Board and the Iwi Trust to bring the Trust Board and the Iwi Trust together to ensure as wide a participation as possible of Ngāti Paoa members in the process to ratify the Deed of Settlement. Despite some positive steps being agreed, agreement between the Trust Board and the Iwi Trust proved elusive. Among other things, difficulties arose over the arrangement proposed for the Waiheke Station Farm and over the integrity of the registers of Ngāti Paoa members maintained by the Trust Board and the Iwi Trust. Both the Trust Board and the Iwi Trust brought proceedings in the Te Ture Whenua Māori Land Court seeking determination of their respective rights and roles on various matters.
[19] In February 2019, Mr Wilson and Mr Rawiri signed the Deed of Settlement on behalf of Ngāti Paoa. Discussions on ratification of the Deed by vote of Ngāti Paoa were delayed by various matters, including steps taken by the Trust Board to seek to remove the Waiheke Farm Station from the Deed of Settlement, because it has already
been vested in Ngāti Paoa, and concerns raised by the Crown about the adequacy of the register maintained by the Trust Board.
[20] In December 2019, the Iwi Trust took steps to seek a Treaty settlement mandate on behalf of Ngāti Paoa, despite Crown advice that negotiations were complete and revisiting the mandate was not required.
[21] In January 2020, Mr Wilson and the Iwi Trust initiated separate, parallel processes for the ratification of the Deed of Settlement. Despite a Crown request that the processes be paused to allow account to be taken of recent findings of the Waitangi Tribunal and to clarify the mandate proposals, Mr Wilson and the Iwi Trust declined to pause their processes.
[22] Mr Gardner-Hopkins says in his memorandum that the Trust Board acceded to a Crown request that the Trust Board not run a third ratification process. Ms Campbell says the Crown did not issue any instruction to that effect and wanted only one ratification process.
[23] The ratification processes took place between 17 January and 13 March 2020, following advertisements in national and local newspapers. Ratification packs with information on the proposed settlement were sent to all adult members of Ngāti Paoa registered with Mr Wilson and the Iwi Trust. Members not registered with Mr Wilson or the Iwi Trust were able to cast special votes.
[24] The results of the votes showed that, of those who voted, more than 85 per cent of voters in each process supported the Deed of Settlement and more than 75 per cent supported the Waiheke Farm Station proposal. Mr Wilson’s poll comprised 221 of the 550 (40 per cent) claimant community members registered with him. The Iwi Trust’s proposal comprised 418 of the 907 (46 per cent) claimant community members registered with the Trust. Ms Campbell says the claimant definition used by Mr Wilson and the Iwi Trust was the definition in the Deed of Settlement.
[25] On 1 July 2020, the Minister for Treaty of Waitangi Settlement Negotiations advised the Trust Board and the Iwi Trust that the ratification results showed sufficient
support from Ngāti Paoa members for the Crown and Ngāti Paoa to enter into settlement.
[26] In July 2020, Danella Roebuck, on behalf of the Trust Board, applied to the Waitangi Tribunal for an urgent hearing on the Crown’s engagement with the Iwi Trust to settle Ngāti Paoa’s historic claims. The Trust Board said the Crown had breached the principles of the Treaty by failing to recognise the mandate held by the Trust Board and by recognising the Iwi Trust in settling the historic claims of Ngāti Paoa.
[27] In his decision dated 20 January 2021, Judge P J Savage considered in some detail the position advanced by the Trust Board and the positions of the Crown and the Iwi Trust. In declining the application for urgency, he stated:1
99.The dispute here is largely between the Trust Board and the Iwi Trust. They are merely representatives of Maori and acting in that capacity. Much more important are the Maori they represent who must have their interests, rights and Treaty protection focused upon, not their representatives. All too often a claim such as this, said to be against the Crown, is an internal dispute and a dispute between representatives.
100.The Trust Board has a mandate, however they simply ceased to hold it. Ngāti Paoa has now moved on and can be seen to firmly support the Iwi Trust. The progress to settlement has now reached the point where the mandate of the Trust Board is nothing more than historical. The Crown could not be seen to be breaching the principles of the Treaty by dealing with the Iwi Trust.
101.Numbers matter and in this context the Trust Board has been unable to disclose any substantial support. The support for the Iwi Trust is overwhelming.
[28] Judge Savage also dismissed the Trust Board’s complaints about the proposed inclusion of the Waiheke Farm Station in the settlement and about people who did not whakapapa to Paoa allegedly participating in the ratification processes. With regard to the latter, the Judge said, “… I am not convinced that these are of any magnitude or create any degree of prejudice.”2
1 Waitangi Tribunal, Decision on Application for Urgent Hearing, 20 January 2021 (Wai 2982, #2.5.10).
2 At 106.
[29] I note that, at the same time as commencing the present proceeding, the Trust Board, commenced a separate proceeding to review the Treaty of Waitangi Tribunal’s decision: CIV-2021-404-423.
[30] On 3 March 2021, Crown representatives advised the Trust Board that the Deed of Settlement would be signed on 20 March 2021. On 11 March 2021, the Minister for Treaty of Waitangi Settlement Negotiations wrote to the Trust Board advising of his intention to sign the Deed of Settlement.
[31] On 16 March 2021, in answer to a request from the Trust Board to pause the proposed signing to resolve the Board’s dispute over mandate and ratification, the Minister advised the Trust Board that he considered the settlement had the support of Ngāti Paoa and that signing of the Deed of Settlement remained appropriate.
Statement of claim in application for judicial review
[32] The statement of claim filed by the Trust Board advances five grounds of review and a separate claim based on breach of contract. The grounds of review are:
(a)Erroneous acceptance of process for ratification of the Deed of Settlement engaged in by the settlement negotiators and the Iwi Trust;
(b)Erroneous or mistaken understanding of the status of the Waiheke Farm Station;
(c)Breach of the Trust Board’s legitimate expectation to be responsible for the ratification process and estoppel;
(d)Unreasonableness and irrationality; and
(e)Breach of duty of care / fiduciary duty.
[33] The alleged breach of contract is said to arise from a contract between the Crown and the Trust Board that the Trust Board is mandated to be responsible for Treaty negotiations on behalf of Ngāti Paoa.
Submissions of parties
Trust Board
[34] Mr Gardner-Hopkins submits that the interim orders are necessary to preserve the Trust Board’s position, among other things:
(a)In protecting the mana, kaitiakitanga and rangatiratanga of Ngāti Paoa;
(b)In protecting the Trust Board’s role as the mandated entity for Ngāti Paoa and which can meaningfully run a ratification process to ensure the validity and authenticity of ratification by Ngāti Paoa;
(c)In ensuring that any Treaty settlement is supported by all hapū and individuals who whakapapa to Paoa and wish to participate, and excludes those who do not whakapapa to Paoa;
(d)As the owner of Waiheke Farm Station for the benefit of people who whakapapa to Paoa; and
(e)As having the right to review, and consult its iwi, on the Deed of Settlement before signature.
[35] Mr Gardner-Hopkins says that if the Crown and the Iwi Trust proceed to sign the Deed of Settlement, the Trust Board will suffer loss of mana, rangatiratanga and kaitiakitanga, and whakamā for its failure to protect and advance the interests of hapū and people who whakapapa to Paoa and who were excluded from, or do not agree with the Deed of Settlement in its current form. It would also lose its status as mandated entity for Ngāti Paoa, the opportunity for an uncontested and complete settlement with the Crown and the opportunity to participate in the symbolism and significance of a settlement signing. It would also be compromised in delivering on its intention to return the Waiheke Farm Station to its beneficiaries by way of grants for papakāinga housing.
[36] Mr Gardner-Hopkins says these effects would persist, even if the Trust Board were to succeed in its application for review. He says that, by contrast, there would be limited prejudice to the Iwi Trust and none to the Crown.
Attorney-General
[37] Mr Gough for the Attorney-General submits that the relief sought by the Trust Board would draw the Court into the legislative process, inconsistent with well- established principles of comity and non-interference with the legislative process. Mr Gough says execution of the Deed of Settlement is a step in the process leading to the introduction of legislation to implement the settlement. He refers to decisions of the Supreme Court, Court of Appeal and High Court which, he says, support this submission.
[38] Mr Gough also says that the Supreme Court has recognised that decisions in the context of Treaty settlement negotiations are inappropriate for judicial review because of the mix of policy, political and fiscal considerations which arise and which are properly the domain of the executive and not the courts. Mr Gough acknowledges that the fact of a Treaty settlement process does not of itself preclude judicial review but says the decisions in this case by their nature fall into the category of decisions that are inherently unsuitable for review.
[39] Mr Gough also submits that refusal of interim orders will not preclude the Trust Board from pursuing its substantive application for review and that interim orders are not necessary to preserve the Trust Board’s position. He also says that substantive application has no reasonable prospect of success. He also submits that there would be prejudice to Ngāti Paoa if signature of the Deed of Settlement were delayed.
Iwi Trust
[40] Mr Mahuika for the Iwi Trust endorses the submissions of the Attorney- General, notes the Settlement Deed has overwhelming support from Ngāti Paoa as shown in the two ratification processes and notes that the Waitangi Tribunal has already rejected the Trust Board’s attempt to challenge the ratification process. He submits that delaying the signing of the Deed of Settlement at this late stage would
frustrate the clear wishes of Ngāti Paoa and that any real damage to the mana of Ngāti Paoa would be caused by halting the signing.
Analysis
[41] Section 15(1) of Judicial Review Procedure Act 2016 provides that the court may make an interim order prohibiting a respondent from taking any further action in exercise of a statutory power if, in its opinion, it is necessary to do so to preserve the position of the applicant. Section 15(3) prohibits an order being made against the Crown if it is the respondent.
[42]As Cooke J said in Carlton & United Breweries Ltd v Minister of Customs:3
In general the Court must be satisfied that the order is necessary to preserve the position of the applicant for interim relief – which must mean reasonably necessary. If that condition is satisfied … the Court has a wide discretion to consider all the circumstances of the case, including the apparent strength or weakness of the claim of the applicant for review, and all the repercussions, public or private, of granting interim relief.
[43] Mr Gardner-Hopkins acknowledges that, subject to the Crown’s submission that any interference in the process to sign and give effect to the Deed of Settlement is an impermissible interference in the legislative process, the Trust Board’s legal position with respect to its substantive claim would not be significantly prejudiced if the signing ceremony proceeded as scheduled. However, he submitted that the mana of Ngāti Paoa would be prejudiced if the signing ceremony proceeded against the background of division within the iwi. Further, the iwi would suffer the loss of opportunity to restore relationships and proceed to settlement on a unified basis.
[44] The difficulty with that submission is that, as the above summary shows, the divisions within the iwi and between the Trust Board and the Iwi Trust are not new. The divisions go back at least to 2017 and, despite various attempts that have been made to bring the Trust Board and the Iwi Trust together, the divisions remain. There is no evidence to suggest that they would be healed and the mana of Ngāti Paoa protected by delaying the signing ceremony.
3 Carlton &United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.
[45] As Judge Savage stated, this is really a dispute about representation when the people who matter are the people themselves. As he also pointed out, the people have shown, by their support for the Deed Settlement through the ratification processes, that they support the Deed of Settlement, including the proposal regarding the Waiheke Farm Station. Having overlapping processes may have been untidy and undesirable, but the results were clear and indisputable.
[46] Mr Roebuck and Mr Gardner-Hopkins say there is evidence that some people, and perhaps some hapū, who did not get their ratification information packs or were otherwise excluded, and that some who do not whakapapa to Paoa may have participated in the ratification processes. But the Trust Board has provided no evidence as to how many people may have affected. The assertions of prejudice on that score stand in some contrast to the numbers and percentages of those who supported the Settlement Deed.
[47] For these reasons, I do not accept that Ngāti Paoa as an iwi would be prejudiced if the signing ceremony proceeds. To the contrary, I consider the greater prejudice to Ngāti Paoa would be to delay, perhaps for a lengthy period, an important day in the history of Ngāti Paoa in taking a significant step in resolving their historic Treaty claims. There would likely be considerable embarrassment and prejudice to Ngāti Paoa, especially to the Wharekawa Marae, if the signing ceremony was cancelled because of this 11th hour application by the Trust Board to halt an event to which many within and beyond Ngāti Paoa will have been invited.
[48] As far as the Trust Board itself is concerned, I accept that its mana and its claim to represent Ngāti Paoa may suffer if the signing ceremony proceeds as scheduled. But that will not really be the consequence of the signing ceremony. It will be the result of the Trust Board not having the support of the people it claims to represent.
[49] As far as the status of the Waiheke Farm Station is concerned, I consider that the Trust Board is again confusing its interests with those of the people it says it represents. The Trust Board accepts that the Station is an iwi asset and will remain an iwi asset under the Deed of Settlement. The Trust Board may lose its ability to direct how the Station is put to iwi use. But the results of the ratification process indicate
that a large majority of the iwi support the proposal in the Deed of Settlement. Again, this suggests there is no significant prejudice to Ngāti Paoa in relation to that proposal. As for the Trust Board, its ability to pursue its claim with respect to the Station is not prejudiced by the signing ceremony proceeding. It can make the same argument at the substantive hearing.
[50] For these reasons, I do not accept that it is reasonably necessary to preserve the position of Ngāti Paoa or of the Trust Board to make the orders sought in the Trust Board’s without notice application.
[51] In these circumstances, it is unnecessary to comment on the merits and prospects of success of the Trust Board’s claims in the substantive application for review. They will be considered at the substantive hearing if it proceeds. I consider it appropriate, however, to note that I consider Crown counsel to have drawn a long bow in suggesting that a ceremony to sign a deed of settlement is a step in the legislative process. It is a step towards the enactment of legislation to give effect to the Deed of Settlement because legislation is needed to give the Deed effect. In essence, however, signature of the Settlement Deed is the culmination of the negotiating process in which the Crown, not the legislature, is the Government actor.
[52] I agree that there can be an issue as to the appropriateness of the courts becoming engaged in reviewing decisions relating to Treaty settlement negotiations, and that the decisions at issue in this case have a high policy content. However, any further analysis of the merits of the Trust Board’s claim is best left to the substantive hearing of that claim.
Result
[53]I dismiss the Trust Board’s application for interim orders.
Costs
[54]I reserve costs on which no submissions were made.
G J van Bohemen J
Solicitors/Counsel:
J D K Barrister, WellingtonInsight Legal Limited, Warkworth Crown Law, Wellington
Kahui Legal, Wellington
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