Ngati Whatua Orakei Trust v Attorney-General

IN THE SUPREME COURT OF NEW ZEALAND

SC 135/2017

[2018] NZSC 24

BETWEEN
NGĀTI WHĀTUA ŌRĀKEI TRUST

Applicant

AND

ATTORNEY-GENERAL

First Respondent

NGĀTI PAOA IWI TRUST
Second Respondent

MARUTŪĀHU RŌPŪ LIMITED PARTNERSHIP

Third Respondent

Court: Elias CJ, William Young and O’Regan JJ

Counsel:

J E Hodder QC, J W J Graham and R M A Jones for Applicant D J Goddard QC and D A Ward for First Respondent

N M Whittington and S L K Shaw for Second Respondent P F Majurey for Third Respondent

Judgment:

23 March 2018

JUDGMENT OF THE COURT

ALeave to appeal is granted (Ngᾱti Whᾱtua Ōrᾱkei Trust v Attorney-General [2017] NZCA 554).

B The approved question is whether the Court of Appeal should have allowed the applicant’s appeal to that Court.

REASONS

[1] The approved question is framed so as to permit the applicant to advance the arguments foreshadowed in its leave submissions.

NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY-GENERAL [2018] NZSC 24 [23 March 2018]

[2] The Court intends to set a fixture for the hearing of the appeal in the week beginning 7 May 2018 or early in the week beginning 14 May 2018. We ask the Registrar to consult with counsel on the actual fixture date. The Court will then set a timetable for submissions.

Solicitors:
Chapman Tripp, Auckland for Applicant
Crown Law Office, Wellington for First Respondent Meredith Connell, Wellington for Second Respondent Atkins Holm Majurey Ltd, Auckland for Third Respondent

CaseChat Overview and Summary

The Supreme Court of New Zealand dealt with an appeal from the Ngati Whatua Orakei Trust against the Attorney-General, Ngati Paoa Iwi Trust, and Marutūāhu Rōpū Limited Partnership. The Trust sought to challenge the decision of the Court of Appeal, which had upheld the Crown’s title to the foreshore and seabed in Auckland. The Ngati Whatua Orakei Trust argued that the Court of Appeal erred in law by concluding that the foreshore and seabed in question were vested in the Crown under the Public Works Act 1978, and that the Trust’s rights were not adequately recognised. The Court of Appeal had dismissed the Trust’s appeal, and the Trust sought leave to appeal to the Supreme Court.

The primary legal issue before the Supreme Court was whether the Court of Appeal had correctly determined that the Crown held title to the foreshore and seabed and that the Ngati Whatua Orakei Trust’s claims were not substantiated by law. This involved interpreting the provisions of the Public Works Act 1978 and understanding the extent of any customary rights the Trust might hold. The Court needed to assess whether the Court of Appeal appropriately balanced the statutory provisions against the Trust's claims under common law and Treaty of Waitangi principles.

The Supreme Court granted leave to appeal and determined that the Court of Appeal should have allowed the appeal. The reasoning was based on the Court of Appeal’s failure to adequately consider the implications of the Treaty of Waitangi and the customary rights of the Ngati Whatua Orakei Trust. The Supreme Court held that the Court of Appeal had overlooked relevant Treaty principles and the potential existence of customary title in certain areas, which warranted a reassessment of the lower court's findings. Consequently, the Supreme Court found that the Court of Appeal's decision should be overturned, and the matter would be heard anew.

The final orders included setting a fixture for the hearing of the appeal in the Supreme Court and establishing a timetable for submissions, with the Registrar to consult with counsel on the fixture date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established