Ngāti Whātua Ōrākei Trust v Attorney-General
[2017] NZCA 183
•15 May 2017 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA122/2017 [2017] NZCA 183 |
| BETWEEN | NGĀTI WHĀTUA ŌRĀKEI TRUST |
| AND | ATTORNEY-GENERAL NGĀTI PAOA IWI TRUST MARUTŪAHU RŌPŪ LIMITED PARTNERSHIP |
| Court: | Cooper, Asher and Brown JJ |
Counsel: | J E Hodder QC and J W J Graham for Appellant |
Judgment: (On the papers) | 15 May 2017 at 10.00 am |
JUDGMENT OF THE COURT
AThe application by Ngāti Hauā Iwi Trust and Ngāi Te Rangi Settlement Trust for leave to intervene is declined.
BThe application by Te Whakakitenga O Waikato Incorporated for leave to intervene is declined.
CThere is no order as to costs.
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REASONS OF THE COURT
(Given by Brown J)
Introduction
The appellant’s proceeding in the High Court sought judicial review and declaratory relief in relation to three decisions made by the Minister for Treaty of Waitangi Negotiations (the Minister) regarding land located on the Auckland isthmus and proposed by the Crown to be applied to the settlement of the Treaty of Waitangi claims of the second and third respondents, namely:
(a)a preliminary decision on 17 August 2015 to transfer land at 71 Grafton Road and 136 Dominion Road, Auckland (the Ngāti Paoa properties) to the second respondent;
(b)following reconsideration, a further decision on 21 May 2016 to offer the second respondent the opportunity to purchase the Ngāti Poao properties from the Crown, subject to legislation being enacted to give effect to the proposal; and
(c)a final decision on 13 May 2016 to offer the third respondent the opportunity to purchase nine central Auckland properties and transfer another cultural redress property as redress for an historical Treaty claim.
The appellant claimed that the Minister acted unlawfully when deciding to offer specific Crown properties for inclusion in Treaty settlements with the second and third respondents. The appellant alleged, among other things, that the decisions were contrary to Ngāti Whātua tikanga and mana whenua. They claim exclusive mana whenua over the area, including the disputed properties.
The Minister has decided that the disputed properties will not be transferred unless and until Parliament has enacted legislation authorising such transfer. Any deed of settlement will have no legal effect without authorising legislation.
The proceeding was struck out in the judgment of Davison J dated 9 March 2017;[1] that judgment has now been appealed to this Court. The appeal has been placed on the fast track and a hearing scheduled for 7–8 June 2017.
Applications for leave to intervene
[1] Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389.
Two applications for leave to intervene and to be heard in the appeal have been filed pursuant to r 48(1) of the Court of Appeal (Civil) Rules 2005.
The first application is filed by Ngāti Hauā Iwi Trust (Ngāti Hauā) and Ngāi Te Rangi Settlement Trust (Ngāi Te Rangi). The former represents the interests of Ngāti Hauā, whose customary rohe is located in the Waikato region. The latter represents Ngāi Te Rangi, whose customary rohe is located in the Tauranga region. Those applications are supported by affidavits of Mr Gillett, Chairperson of the Ngāti Hauā Iwi Trust, and Mr Tawhiao, Chairperson of the Ngāi Te Rangi Settlement Trust.
The second application is made by Te Whakakitenga O Waikato Incorporated (Te Whakakitenga), which is the representative tribal authority for the iwi of Waikato-Tainui. It is the trustee of both the Waikato Raupatu Lands Trust and the Waikato Raupatu River Trust. Its application is supported by an affidavit of Mr Papa, Chairman of Te Arataura, the executive board of Te Whakakitenga.
The applicants emphasise that it is not their intention to replicate the arguments advanced by the appellant. They seek to file written submissions (20 pages in the case of the first applicants and 15 pages in the case of the second applicant). The first applicants seek to present oral submission of 30 minutes or such further period as the Court permits. The second applicant wishes to appear but limits its participation to making oral submissions only if sought by the Court.
The two applications are supported by the appellant but opposed by all three respondents.
In response to the inquiry in this Court’s minute of 5 May 2017 all parties agree to the applications being determined on the papers without an oral hearing.
Relevant principles
The relevant principles when considering granting leave to intervene under r 48 include:
(a)The power is broad in nature but should be exercised with restraint to avoid the risk of expanding issues, elongation of hearings and increasing the costs of litigation.[2]
(b)In an appeal involving issues of general and wide importance the court may grant leave when satisfied that it would be assisted by submissions from the intervener.[3]
(c)The fact that the case raises issues of principles transcending the particular facts is not in itself sufficient to extend rights of hearing beyond the parties.[4]
(d)The Court will take into account the relevant expertise or the unique position of an intended intervener as well as the impact of the intervention on appeal.[5]
Discussion
Nature of applicants’ interest
[2]Hawke v Accident Compensation Corporation [2014] NZCA 552 at [9(a)].
[3]At [9(b)].
[4]New Zealand Fire Service Commission v Ivamy (1995) 8 PRNZ 632 (CA) at 633.
[5]Copyright Licensing Ltd v University of Auckland [2015] NZCA 123, [2016] 2 NZLR 1 at [46].
Neither Ngāti Hauā nor Ngāi Te Rangi have any direct interest in the subject of this appeal. They are not groups to whom the Minister’s three decisions apply. Nor do they claim any customary interest in the land that is the subject of the proceeding.
Waikato-Tainui, as represented by Te Whakakitenga, does assert a general customary interest in the Tamaki Makaurau (Auckland) area, but it concedes that it does not have a direct interest in the properties the subject of the proceeding.
However the applicants submit they are sufficiently interested based on:
· for Ngāti Hauā and Ngāi Te Rangi, an interest in the underlying principles of the Crown’s approach to settlement where there are overlapping claims and a general interest in whether the Courts will provide declarations about mana whenua rights; and
· for Te Whakakitenga, the determination of the issues in paras 1.1, 1.5, 1.6 and 1.7 of the Notice of Appeal are said to be likely to have a precedent effect on the Crown’s policies and processes regarding the settlement of claims (including the provision of settlement redress to both Waikato-Tainui and to other iwi within areas in which Waikato-Tainui has interests) and the jurisdiction of the courts to review such decision-making processes.
In support of the applicants, the appellant observes that its claim is the first of its kind to challenge the Crown’s conduct following the settlement of historical Treaty of Waitangi grievances. It submits that each applicant has a relevant perspective on the litigation and stands to be either directly affected by the Crown’s conduct at issue or similar conduct.
The matters on which the proposed intervenors seek to be heard concern issues described in the first applicants’ application as being of general principle and of wide importance, involving broad questions of policy. They would surely be of interest to a wide group and are certainly not specific to the applicants. Indeed the first applicants’ application records that they are in discussion with other iwi and entities representing iwi who may wish to intervene. If such persons do wish to intervene, it is stated that a further application will be made.
We agree with the submissions for the Crown that such grounds are likely to be shared by any group whose area is the subject of overlapping claims made by another group, or by any group that has an interest in asserting a claim to mana whenua through seeking declarations.
Granting intervenor status based on such general interests risks the Court engaging in a form of judicial inquiry rather than adjudicating on a specific dispute, an approach against which this Court has cautioned.[6]
Scope of the appeal and expertise of the applicants
[6]Drew v Attorney-General [2001] 2 NZLR 428 (CA) at [16].
Both the Crown and the third respondent submit that Ngāti Hauā and Ngāi Te Rangi have overstated the effect of the decision of the High Court and hence the issues before this Court. Indeed the third respondent observes that, in the specific factual matrix of the appellant’s assertion of exclusive rights being superior over those of other iwi, the decision is not one of general principle and wide importance.
We accept that the core issues before this Court will be matters of justiciability and comity in the context of a proposed transfer of property that will only occur if authorised by statute. While we recognise that the applicants and indeed other iwi bodies are involved, or may become involved, in similar disputes with the Crown in other geographical locations, we agree with the Crown submission that none of the applicants have demonstrated that they can assist the Court in relation to the application of the principle of comity and non-justiciability to the specific facts of this proceeding.
Competence of counsel for the parties to address issues
The third respondent points out that the applicants did not participate in the hearing
in the High Court,[7] and submits that that posed no impediment to the decision fully considering all issues.
[7]On the first day of the hearing the second applicant filed a memorandum reserving its position on seeking leave to intervene at any appellate stage.
Both the appellant and the second respondent are represented by senior counsel and counsel for the first and third respondents are experienced in this area of law. We accept the Crown submission that the parties to the appeal and their legal counsel are fully competent to address any matters of public policy as they pertain to this case.
Furthermore, while the applicants seek to be heard only comparatively briefly, additional written submissions would necessitate responses from some, if not all, of the respondents and place pressure on a hearing in which four parties are already engaged.
Conclusion
Having regard to the considerations discussed above we consider that the applications to intervene should be declined.
Outcome
The application by Ngāti Hauā Iwi Trust and Ngāi Te Rangi Settlement Trust for leave to intervene is declined.
The application by Te Whakakitenga O Waikato Incorporated for leave to intervene is declined.
There will be no order as to costs.
Solicitors:
Chapman Tripp, Wellington for Plaintiff and First Applicants to Intervene
Crown Law Office, Wellington for First Respondent
Meredith Connell, Auckland for Second Respondent
Atkins Holm, Auckland for Third Respondent
Kahui Legal, Wellington for Second Applicant to Intervene
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