Ngati Whatua Orakei Trust v Attorney-General
[2019] NZHC 2363
•19 September 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-002033
[2019] NZHC 2363
UNDER Judicature Amendment Act 1972 and Part 30 of the High Court Rules BETWEEN
NGĀTI WHĀTUA ŌRĀKEI TRUST
Plaintiff
AND
ATTORNEY-GENERAL
First Defendant
MARUTŪĀHU RŌPŪ LIMITED PARTNERSHIP
Second Defendant
TE ARA RANGATŪ O TE IWI O NGĀTI TE ATA WAIŌHUA INC
Third Defendant
Hearing: 11 September 2019 Appearances:
T D Smith and J M Te Rata for the Applicant Interveners Ngāti Kuri Board and Ngāi Te Rangi Settlement Trust
JWJ Graham and RMA Jones for the Plaintiff
D A Ward and Y Moinfar-Yong for the First Defendant P F Majurey for the Second Defendant
Judgment:
19 September 2019
JUDGMENT OF MUIR J
This judgment was delivered by me on Thursday 19 September 2019 at 11.30 am Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar Date:…………………………
NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY-GENERAL [2019] NZHC 2363 [19 September 2019]
Introduction
[1] Ngāti Kuri Trust Board and Ngāi Te Rangi Settlement Trust (the applicants) seek leave to intervene in a long-running claim by the Ngāti Whātua Ōrākei Trust in which it seeks, among other things, a declaration that, in applying its so-called overlapping claims policy (applicable when in the context of a Treaty settlement two or more iwi make claims to the same area of land), the Crown must act in accordance with tikanga. As the Supreme Court recorded in an earlier interlocutory decision in relation to the proceedings:1
At the heart of the complaint in respect of the [overlapping claims policy], it is said that the Crown is wrong to say that tikanga and Treaty rights do not have to be determined prior to the making of a settlement offer.
[2] The Ngāi Te Rangi Settlement Trust represents Ngāi Te Rangi a Tauranga- based iwi. Ngāi Te Rangi has signed deeds of settlement with the Crown but Bills giving effect to those settlements are stalled due to disputes about the Crown’s conduct in settlement negotiations with other Hauraki iwi relating to the overlapping claims policy. In an affidavit in support of the application the Trust’s chairperson, Mr Tawhiao, goes so far as to say that Ngāi Te Rangi is currently “so incensed” by the Crown’s approach to addressing overlapping interests that “we would prefer no settlement to having a settlement that compromises our mana whenua and mana moana in Tauranga Moana”.
[3] The Ngāti Kuri Trust Board represents Ngāti Kuri, a Northland-based iwi. Ngāti Kuri settlement legislation has been passed by Parliament and given assent. However, its chairman, Mr Berkhardt, deposes that “its inability to effectively challenge Crown decisions on cross-claims significantly prejudiced the ability of Ngāti Kuri to maintain its primary rights to its rohe” and that, as a result, the “Crown’s pre-settlement shadow” continues to be cast over the iwi.
[4] Both applicants say that “in a Treaty settlement context” the Crown has acted and continues to act in a way that is inconsistent with their existing legal rights informed by tikanga, manu whenua and ahi kā. The applicants acknowledge that they have no interests in the specific land at issue in the plaintiff’s proceedings. Rather, they say that the claim raises important issues regarding the Crown’s approach to
1 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 117 at 58.
Treaty settlements and the application of the overlapping claims policy. They say that the Court’s determination on those issues will invariably affect their rights and interests in their separate contexts.
[5] They seek to intervene in the proceedings on a limited basis, namely (1) they will neither call evidence nor cross-examine any party; (2) participation will be limited to the right to file a written submission of an agreed maximum length on which they will be heard orally only if the Court considers it would be of assistance to it and there is sufficient time for such submission and any reply; and (3) that no costs will be payable to it or by it.
[6] The Attorney-General opposes the application on the grounds that the applicants have insufficient interest in the proceedings to qualify as interveners and cannot usefully add to the information that will otherwise be before the Court.
[7] The plaintiff supports the application. The second defendant chose not to file written submissions, but Mr Majurey did raise one issue which I will refer to subsequently.
Approach to intervention applications
[8] The Court may grant leave to non-parties to intervene in proceedings. The discretion to do so arises out of the Court’s inherent jurisdiction and r 7.43A of the High Court Rules.2
[9] The relevant principles were helpfully restated by Thomas J in McClintock v Attorney-General:3
(a)An applicant must show that its legal rights or liabilities in relation to the subject matter will be directly affected. Commercial, financial, or reputational interests in the outcome will only be sufficient in exceptional circumstances.
(b)If the intending intervener’s presence before the Court will not improve the quality of information before the Court, that will count heavily against is addition to the proceedings.
(c)A relevant consideration is the extent to which the proposed intervener can rely on one of the parties to protect its rights and obligations.
2 Seales v Attorney-General [2015] NZHC 828 at [41].
3 McClintock v Attorney-General [2015] NZHC 1290 at [30].
(d)If either party would be prejudiced by the intervention, or if the intervention would create an impression of partiality, the application will likely not be granted.
(e)In cases where development of the law is possible, the application is more likely to be granted if the proposed intervener has special expertise to assist the Court on wider public policy issues.
(f)The underlying issue is whether it would be unjust to adjudicate on the matter in dispute without the intervener being heard. Several of the factors mentioned above tie into this issue.
(g)Where intervention is justified, the degree of participation granted to the intervener should be the minimum necessary to protect the intervener’s interests.
(h)The power to grant leave to intervene is discretionary and should be exercised with restraint to avoid the risk of expanding issues, elongating the hearing and increasing the costs of the litigation.
[10] It will be observed that Her Honour required that the applicant’s legal rights in relation to the subject matter will be directly affected.
[11] In Deadman v Luxton, Gendall J recognised that it may often be the case that there is more scope for rights of others to be affected in judicial review proceedings than in other types of “plaintiff versus defendant civil litigation”.4 He said this was so “because frequently the challenge to the exercise of the statutory power or decision of a public body will have consequential effects upon others who obtain beneficial entitlements or expectations following upon the exercise of such power”.5
[12] These observations were adopted by the full Court of the High Court in Wilson v Attorney-General. The full Court went on to state:6
[20] Emerging from the cases is that joinder is appropriate where the parties’ interests are or may be directly or indirectly affected by the judicial review application. In such situations it would be unjust to decide the issues in the absence of the party so affected or potentially affected …
(emphasis added)
[13] These cases establish that in a judicial review context at least, it may not be appropriate to limit participation to those whose interests will be directly affected. I accept the applicant’s submission, however, that the distinction may be more notional
4 Deadman v Luxton HC Wellington CP71/99, 4 May 1999.
5 Deadman v Luxton HC Wellington CP71/99, 4 May 1999 at [6].
6 Wilson v Attorney-General 19 PRNZ 943 at [19].
than real. In McClintock, Her Honour took a broad approach to the concept of directly affected. She held that the Churches Education Commission, a non-denominational charitable trust providing optional Christian religious education programmes to New Zealand state primary schools, would be directly affected by the plaintiff’s application against the Attorney-General and the Red Beach Board of Trustees because of its potential to impact on the way other schools interacted with the Commission.
[14] While the fact that a proceeding raises issues of wide importance or general principle is not of itself a reason to grant leave, it is in this context that interveners can be of the most assistance to the Court.7 One of the central questions in all cases is whether the assistance provided outweighs the risk of prejudice to the parties.8
Discussion
[15] I accept the applicant’s submission that, properly construed, Ngāti Whātua Ōrākei’s proceedings challenge both the overlapping claims policy and the application of that policy to it’s core area of interest.9
[16] Essentially Ngāti Whātua Ōrākei’s case is that the application of the overlapping claims policy to the relevant lands is unlawful because the policy itself is legally flawed. It is said to be legally flawed because of its failure to take into account the principles of tikanga referred to variously as ahi kā or ahi kā rohe, mana whenua, take tuku and tuku whenua. In order for Ngāti Whātua Ōrākei to succeed it must first establish that it has ahi kā and mana whenua in relation to the relevant lands and, secondly, that when applying the overlapping claims policy the Crown must act in accordance with tikanga.
[17] Importantly, the tikanga referred to in the second amended statement of claim is both tikanga generally and that which is said to be particular to Ngāti Whātua Ōrākei. Whether the Crown is obliged to act in accordance with tikanga generally has a wider resonance than the current parties. I accept that the outcome of the plaintiff’s
7 Drew v Attorney-General [2001] 2 NZLR 428 (CA) at [17]; Diagnostic Medlab Ltd v Auckland District Health Board HC Auckland CIV-2006-404-004724, 18 October 2006 at [27].
8 Drew v Attorney-General [2001] 2 NZLR 428 (CA).
9 Identified in the statement of claim as 2006 RFR land and the 1840 transfer land.
challenges will affect how the Crown approaches negotiations with other iwi and hapu. I accept also that both applicants have established that they are affected by the way the Crown has and continues to address tikanga and mana whenua in the context of its overlapping claims policy. These may fairly, in my view, be said to be issues of general principle and wide importance. The applicants go so far as to suggest they have constitutional significance. I accept that in such context the courts have indicated a willingness to more freely exercise their discretion to grant leave.10
[18] In opposing the application the Attorney-General’s central proposition is that the plaintiff’s claims are based on their mana whenua, their take tuku and their customary history in Tamaki Makaurau. From that premise Mr Ward says that the Court will not be assisted by any submission the applicants may make because all they are in a position to address is the impact that the overlapping claims policy has on their own tikanga. However, for the reasons I have indicated, that defines the plaintiff’s claim too narrowly. The plaintiff does not limit itself to principles of tikanga particular to Ngāti Whātua Ōrākei. Insofar as it alleges the overlapping claims policy is inconsistent with tikanga generally (and the Crown resists that proposition), the proceedings, in my view, can be said to affect the applicant’s interest in a way which is sufficiently direct to engage the existing authorities. Indeed, if, as I accept, the key question is whether the overlapping claims policy was lawful and if that issue can be said to in any way turn on general principles of tikanga, it is difficult to see how the applicant’s interests are any less directly affected than the plaintiff on that point.
[19] In terms of the assistance which the Court is likely to derive from the proposed joint submission, guidance can, in my view, be taken from the Supreme Court’s decision to permit the same parties to intervene on the interlocutory appeal heard by it. I accept that slightly different considerations can apply at trial and appellate level. I accept also that the issues on which the applicants would wish to submit before the High Court will not precisely duplicate (albeit they will be informed by) the submissions they made in the Supreme Court. The applicants fairly state that they are not at this stage in a position to indicate precisely the ambit of their submission. They have no intention of duplicating submissions made by other parties. However, they
10 Seales v Attorney-General, above n 2, at [46].
say that, informed by their own experiences, they anticipate being able to offer (at a level of principle and law) a valuable additional perspective. The Supreme Court concluded that it may be assisted by submissions from the applicants on the issues arising in the appeal. In the same way I conclude that the High Court may likewise be assisted at trial.
[20] Although generally in cases of public importance or involving development of the law, intervention is only permitted if the applicant is considered to have particular expertise in the area, where a proceeding raises issues as wide as the obligations of Treaty partners, it is the individual iwi and hapu who, in addition to the Crown, will have the relevant expertise. As the applicants submit, this reflects the reality that the Treaty partnership is in fact comprised of many individual partnerships and that tino rangatiratanga resides at the hapu level.
[21] Paki v Attorney-General is illustrative.11 In that case, representatives of a collection of Wakatu/Nelson-based hapu were permitted to intervene in a proceeding concerning lands on the banks of the Waikato River. They had no direct involvement in respect of the lands. Their permitted involvement was in the context of the Crown’s broader fiduciary obligations. It cannot, in my view, be said that their case for intervention was any stronger than the present.
[22] As to whether such level of assistance outweighs the risk of prejudice to the parties, in my view the answer is in the affirmative. Having regard to the restrictive terms on which the applicants seek to intervene, I do not regard there as being any significant prejudice. The issues will not be materially expanded, nor the hearing materially attenuated, nor the costs to the parties materially increased. Relevantly, the application is supported by the plaintiff. Mr Webb suggests that it is possible that other iwi with interests equivalent to the applicants might also seek to join. That is hypothetical. What can be said, however, is that the Supreme Court’s decision, allowing in part the plaintiff’s appeal, has had wide publication. A year has since elapsed and only a limited number of interveners have emerged, all, with the exception of the applicants, having connections with Tamaki Makaurau.
11 Paki v Attorney-General [2014] NZSC 118, [2015] 1 NZLR 67.
[23] Mr Majurey makes a related point. He says that directions for service of proceedings following the Supreme Court’s decision were confined to those iwi with Auckland interests. He questions whether, if the applicants are permitted to intervene, every iwi and hapu in New Zealand should be notified. I do not accept that as a relevant consideration in the discretion I must exercise. The applicants do not seek findings in relation to any other iwi. They intend to make a submission informed exclusively by their own context. Nor should the outcome of an application for leave to intervene turn on the possibility that some other party might have made an equivalent application had the Court’s orders as to service been different.
Result and terms of participation
[24] For the foregoing reasons I am satisfied that my discretion is appropriately exercised in favour of the application. In terms of the ultimate issue I must decide it would, I consider, be unjust to deprive the applicants of the opportunity to be heard in respect of the legality of the overlapping claims policy. At the conclusion of the hearing Mr Ward indicated that if that was the Court’s conclusion, the Attorney- General was content with the terms of participation proposed. I have made some minor additions to these in the interests of efficient case management.
[25]I therefore direct that leave to intervene be granted on the following basis:
(a)The applicants may, at the conclusion of the trial, file and serve written submissions, the exact timing thereof to be settled at any pre-trial conference or, in default, by the trial Judge;
(b)The submission whether joint or several is to be a maximum of 20 pages;
(c)The submission is to focus on the implications of the claim beyond those applying to the existing parties with an emphasis on issues of principle and law. It is not to duplicate the submissions of any other such party;
(d)The grant of leave does not extend to the calling of witnesses or cross- examination of any witness;
(e)Counsel for the applicants will be heard orally only if the Court considers that it would be assisted by such and there is sufficient time for counsel and any counsel in reply to be heard;
(f)Counsel for the applicants may appear at the hearing. Joint counsel are to be instructed. In the event of space limitations, representation may be limited to one counsel only.
(g)No costs will be payable to or by the applicants.
Costs on the current application
[26] I anticipate that, consistent with their proposed terms of participation, the applicants do not seek costs on the present application. If that assumption is incorrect and costs cannot otherwise be resolved, memoranda (maximum 3 pages) may be filed on the following timetable.
[27]Memorandum of applicants – 27 September 2019.
[28]Memorandum of Attorney-General – 11 October 2019.
[29]Any memorandum in reply – 18 October 2019.
Muir J
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