Raukawa Settlement Trust v Waitangi Tribunal
[2019] NZHC 383
•12 February 2019
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-903
[2019] NZHC 383
UNDER The Judicial Review Procedure Act 2016 BETWEEN
RAUKAWA SETTLEMENT TRUST
Applicant
AND
THE WAITANGI TRIBUNAL
First Respondent
AND
THE ATTORNEY-GENERAL
Second Respondent
AND
WAIRARAPA MOANA KI POUAKANI INCORPORATED
Third Respondent
AND
RANGITĀNE TŪ MAI RĀ TRUST
Fourth Respondent
AND
NGĀTI KAHUNGUNU KI WAIRARAPA TAMAKI NUI-A-RUA SETTLEMENT
TRUST
Fifth Respondent
Hearing: 5 December 2018 and 4 and 12 February 2019 Appearances:
B J R Keith for Applicant
V Hardy and C Tyson for Second Respondent J Ferguson and N Milner for Third Respondent
R Siciliano (5 December 2018) and K Katipo (4 February 2019) for Fourth Respondent
Judgment:
12 February 2019
ORAL JUDGMENT OF GRICE J
RAUKAWA SETTLEMENT TRUST v THE WAITANGI TRIBUNAL [2019] NZHC 383 [12 February 2019]
Table of Contents
Para No. Introduction [1] Key sections [14] The decision [17] The issues [24] Background [26] The Settlement Act [26] Interpreting s 17 of the Settlement Act [42] Haronga decisions [60] Other matters raised [63] The claims [67] Natural justice [68] Conclusion [83] Orders [87] Costs [90]
Introduction
[1] The applicant (Raukawa) seeks judicial review of a decision of the Waitangi Tribunal dated 17 October 2018 (the decision).1 The decision withdrew Raukawa’s right to appear as an interested party in proceedings before the Tribunal.2
[2] The Tribunal’s proceedings relate to an application by the third respondent (Wairarapa Moana) for the resumption and return of land in Mangakino. The land is the site of the hydroelectricity generating Maraetai dam presently owned by Mercury New Zealand Ltd. That application is known as Wai 85.3
[3] The application for resumption follows procedures concerning Māori claims to state enterprise land set out in s 8 of the Treaty of Waitangi Act 1975 (the 1975 Act). For the purposes of these proceedings, state enterprise land is land formerly owned by a state-owned enterprise and carries an appropriate memorial on the title.
[4] Raukawa sought the right to be heard as an interested party based on its claim to mana whenua over the Mangakino land. Raukawa’s association with the land
1 Waitangi Tribunal Entitlement of Settled Parties to Participate (Wai 863 #2.590, 2018).
2 Waitangi Tribunal Directions of the Waitangi Tribunal (Wai 863 #2.534, 2018).
3 An application for remedies on behalf of the shareholders of the Wairarapa Moana ki Pouani Incorporation, Kingi Winiata Smillie (Wai 85). Waitangi Tribunal, above, n 1.
known as the Pouakani Block on the banks of the Waikato River is ancestral. That block was lost in the 1880s through failings by the Crown and in breach of the Treaty of Waitangi. In 1915, the Crown gifted 20,000 acres of the land (including the Mangakino land) to the Ngāti Kahunganui people (now shareholders in Wairarapa Moana) as compensation for land lost by them in the Wairarapa where they are traditionally from. They had no association with the Pouakani lands.
[5] It is common ground that other iwi may also have mana whenua claims relating to the land.
[6] Raukawa was initially granted the right to participate in Wai 85. It was subsequently withdrawn in the decision. The judicial review application before me seeks that the decision be quashed due to reviewable errors.
[7] In the decision, the Tribunal noted that s 8C conferred a “benefit” on Raukawa, being the right to participate as an interested party. Section 17 of the Raukawa Claims Settlement Act 2014 (the Settlement Act) provides that certain enactments including s 8C of the 1975 Act do not apply for “the benefit of Raukawa”. The Settlement Act implemented Raukawa’s settlement with the Crown in relation to Raukawa’s historic claims. The settlement was recorded in the Raukawa Claims Deed of Settlement4 which was given effect to in the Settlement Act.
[8] The Waitangi Tribunal, as the first respondent, has filed a memorandum noting it would abide by the decision of this Court. It reserved some rights but it did not participate in the hearing. The fifth respondent also did not participate.5
[9] The Attorney-General (the Crown), as second respondent, supported the judicial review application. In common with the applicant, it submits that the Tribunal misdirected itself in law by misinterpreting the meaning of s 17 of the Settlement Act. As a result, the Crown invites the Court to quash the decision and to declare that Raukawa is entitled to appear and be heard in the Tribunal proceedings as an interested party. Alternatively, the Crown submits the Tribunal
4 Deed of Settlement of Historical Claims between Raukawa and Raukawa Settlement Trust and the Crown, dated 2 June 2012.
5 The fifth respondent was also granted leave not to appear at the hearing.
has misinterpreted s 8C of the 1975 Act by treating it as a code in respect of natural justice rights and invites the Court to observe that the Tribunal is not precluded from granting leave to Raukawa to participate in the Tribunal proceedings despite s 8C.
[10] The fourth respondent (Rangitāne) also participated in the hearing. It adopted and supported the applicant’s case. It had been declined interested party status in the Tribunal proceedings for similar reasons as for Raukawa.6 Its right to be heard therefore effectively turns on the outcome of these proceedings.7 Ms Siciliano, for Rangitāne, also pointed out that it is not only the Rangitāne Settlement Act, but over 50 other Settlement Acts which contain provisions equivalent to that of s 17 of the Raukawa Settlement Act.
[11]Wairarapa Moana opposes Raukawa’s application.
[12] The original application by Raukawa came before this Court as an application for an interim injunction to prevent the Tribunal from progressing Wai 85 until the judicial review was heard. It was converted to a judicial review proceeding to secure a timely final determination on Raukawa’s position. This matter has been dealt with urgently.8
[13] For reasons which follow, I consider the application should be granted with the result that the decision is quashed and Raukawa’s application under s 8C will need to be considered afresh by the Tribunal.9
Key sections
[14] The key legislative provisions relied upon by the Tribunal in its decision are s 17 of the Settlement Act and s 8 of the 1975 Act.
6 Rangitāne was granted interested party status by the Tribunal on 18 June 2018 (Wai 863 #2.539, 2018). This was withdrawn in the decision.
7 I focus on Raukawa’s application in these proceedings.
8 Raukawa Settlement Trust v Waitangi Tribunal HC Wellington CIV-2018-485-902, 26 November 2018 per Clark J.
9 This decision was delivered orally on 12 February 2019 and as indicated when delivered the written form has been appropriately edited and footnoted before distribution.
[15] Section 17 provides under the heading Resumptive memorials no longer to apply that certain enactments do not apply:
17 Certain enactments do not apply
(1)The enactments listed in subsection (2) do not apply—
(a)to a cultural early release property; or
(b)to a cultural redress property; or
(c)to the commercial property, but only on and from the date on which settlement of the property takes place; or
(d)to a deferred selection property (other than a Ministry of Education property), but only on and from the date of transfer for that property to the trustees; or
(e)to the RFR10 land; or
(f)for the benefit of Raukawa or a representative entity.
(2)The enactments are—
(a)Part 3 of the Crown Forest Assets Act 1989:
(b)sections 211 to 213 of the Education Act 1989:
(c)Part 3 of the New Zealand Railways Corporation Restructuring Act 1990:
(d)sections 27A to 27C of the State-Owned Enterprises Act 1986:
(e)sections 8A to 8HJ of the Treaty of Waitangi Act 1975.
(Emphasis added)
[16]Section 8C of the Treaty of Waitangi Act 1975 provides:
8CRight to be heard on question in relation to land transferred to or vested in State enterprise
(1)Where, in the course of any inquiry into a claim submitted to the Tribunal under section 6, any question arises in relation to any land or interest in land to which section 8A applies, the only persons entitled to appear and be heard on that question shall be –
(a)the claimant:
(b)the Minister of Maori Affairs:
10 RFR means Right of First Refusal.
(c)any other Minister of the Crown who notifies the Tribunal in writing that he or she wishes to appear and be heard:
(d)any Maori who satisfies the Tribunal that he or she, or any group of Maori of which he or she is a member, has an interest in the inquiry apart from any interest in common with the public.
(2)Notwithstanding anything in clause 7 of Schedule 2 or in section 4A of the Commissions of Inquiry Act 1908 (as applied by clause 8 of Schedule 2), no person other than a person designated in paragraph
(a) or paragraph (b) or paragraph (c) or paragraph (d) of subsection
(1) shall be entitled to appear and be heard on a question to which subsection (1) applies.
(3)Nothing in subsection (2) affects the right of any person designated in paragraph (a) or paragraph (b) or paragraph (c) or paragraph (d) of subsection (1) to appear, with the leave of the Tribunal, by –
(a)a barrister or solicitor of the High Court; or
(b) any other agent or representative authorised in writing. (Emphasis added)
The decision
[17] In its decision, the Tribunal noted that Raukawa and Rangitāne had already been granted interested party status in Wai 85.11 It noted that s 8C of the 1975 Act allowed interested party status to “any Māori who satisfies the Tribunal that he or she, or any group of Māori of which he or she is a member, has an interest in the inquiry apart from any interest in common with the public”.12 It commented that an identical provision is found in s 8HD of the 1975 Act which relates to claims for the resumption of Crown forest land.
[18] The Tribunal noted that a submission had been made that s 17 was “explicit” in providing that iwi “may not benefit or rely on s 8C of the Waitangi Tribunal Act 1975”.13
[19] The Tribunal then summarised the arguments against allowing Raukawa to be an interested party as follows:
11 Waitangi Tribunal, above n 1, at [2].
12 At [6].
13 At [13].
(a)“Full and final settlement” means exactly that in the context of the Settlement Acts, and no ability to benefit from the relevant regime should be allowed. A benefit included a range of potential benefits including:14
… tangible profits or gains, including the right to preserve interests upon application to the Tribunal to have a memorial lifted, and the right to appear and to be heard.
(b)There was no express preservation of the right to be heard compared to other Settlement Acts such as the Central North Island Forests Land Collective Settlement Act 2008 (the CNS Act).
(c)Raukawa sought to participate in the proceedings in order to pursue its own interests. Therefore, it sought “benefit” from being an interested party. The potential benefits, other than tangible profits or gains, included the right to preserve interests upon application to the Tribunal, to have a memorial lifted, and the right to appear and be heard.15
[20] The Tribunal focused its analysis on the definition of the word “benefit”. It noted the contest between a narrow interpretation (sought by Raukawa) and a broad interpretation (sought by those opposing). The Tribunal found that participation was a benefit on the basis that:
(a)The dictionary definition of “benefit” is “advantage” and that “for the benefit of” is defined as “on behalf of”.
(b)Raukawa would not pursue interested party status unless it somehow advantaged or benefited it. It sought to influence the Tribunal’s decision in Wai 85. It logically followed Raukawa was motivated by some benefit that would flow from that influence.16
14 At [14].
15 In the case of Rangitāne it was in relation to access rights to a forest that were presently being negotiated.
16 Waitangi Tribunal, above n 1, at [7].
(c)Raukawa had no future role to play in the binding recommendations regime as its settlement, including any provision from properties bearing memorials, was concluded.
(d)Allowing parties who had settled their claims to take part in the hearings and influence the decision of the Tribunal about SOEs’17 assets or Crown forest assets “will inevitably lead” to a consideration of the context and content of the application of the Crown’s Treaty settlement policies. The Tribunal, it said, must exercise its discretions under the binding recommendation provisions independently of those kinds of considerations according to the Court of Appeal authority.18
[21] On this basis, the Tribunal concluded that Raukawa could not be granted interested party status in the proceedings. The Tribunal concluded s 8C of the 1975 Act did not apply for the benefit of a “settled group”. The earlier leave to participate was withdrawn.19
[22]The Tribunal went on to note that:20
Notwithstanding this decision, the Tribunal will have regard to the unique factual circumstance of the Wai 85 application where the land and assets sought for resumption lie in the rohe of another iwi, Raukawa. We will use the Tribunal’s 1993 Pouakani Report, and we will consider how the operation of tikanga bears on the exercise of our binding recommendations jurisdiction.
[23] The Tribunal subsequently indicated that parts of Raukawa’s evidence which had been filed after it had been given interested party status in May 2018 would still be taken into account by the Tribunal, to the extent it was of assistance to the assessment of tikanga, tangata whenua status and customary interests. Exactly which parts of the evidence will be considered by it later. How the evidence will be received, including whether the Raukawa witnesses will be called, has yet to be determined.21
17 State-Owned Enterprise.
18 Haronga v Waitangi Tribunal [2015] NZHC 1115; Attorney-General v Haronga [2016] NZCA 626, [2017] 2 NZLR 394.
19 Waitangi Tribunal, above n 1, at [20]..
20 At [21]. The Pouakani Report narrated the basis of the mana whenua claims by Raukawa in relation to the Mangakino land and its confiscation by the Crown and allocation to Wairarapa in 1916.
21 Waitangi Tribunal Minute of the Waitangi Tribunal (Wai 863 #2.604, 2018).
The issues
[24] The parties have put forward a number of issues. However, the main question raised by the pleadings is one of interpretation. Specifically:
Did the Tribunal misinterpret s 17 of the Settlement Act to bar Raukawa from asserting an interest greater than a member of the public to be heard in relation to Wai 85 pursuant to s 8C of the 1975 Act?22
[25] I now turn to consider s 17 of the Settlement Act and s 8C of the 1975 Act. I will also consider the Raukawa Deed of Settlement which was implemented by the Settlement Act.
Background
The Settlement Act
[26] I repeat the relevant part of s 17 of the Settlement Act as it is at the heart of the decision. It provides:
17 Certain enactments do not apply
(1)The enactments listed in subsection (2) do not apply—
…
(f) for the benefit of Raukawa or a representative entity.
(2)The enactments are—
(a)Part 3 of the Crown Forest Assets Act 1989:
(b)sections 211 to 213 of the Education Act 1989:
(c)Part 3 of the New Zealand Railways Corporation Restructuring Act 1990:
(d)sections 27A to 27C of the State-Owned Enterprises Act 1986:
(e)sections 8A to 8HJ of the Treaty of Waitangi Act 1975.
(Emphasis added)
22 I use “misinterpret” in the judicial review sense of making a mistake or error of law or failing to take into account relevant considerations: Cooke F “Judicial Review” NZLSCLE Ltd, (Wellington, 2015) at 5.
[27] Those disapplied provisions listed in s 17(2) are mechanisms for making and securing resumption as follows:
Part 3 of the Crown Forest Assets Act 1989 provides for restrictions on Crown dealing with Crown forest land potentially subject to resumption (s 35) and Crown return or retention pursuant to Tribunal decisions (ss 36-37).
Sections 211-213 of the Education Act 1989 provide for resumption decisions by the Tribunal (s 212); Crown resumption as if under the Public Works Act 1981 (s 213); and the entry of memorials where land possibly subject to resumption is transferred (s 211).
Part 3 of the New Zealand Railways Corporation Restructuring Act 1990 provides for the entry of memorials (s 38); for Tribunal resumption decisions (s 39); and for application of the Public Works Act (s 40).
Sections 27A-27C of the State-Owned Enterprises Act 1986 provides for the entry of memorials (s 27A); Tribunal resumption decisions (s 27B); and application of the Public Works Act (s 27C).
Sections 8A-8HJ of the Treaty of Waitangi Act 1975 provide a more detailed scheme for the making and implementation of resumption decisions, including the rights of participation under s 8C of the 1975 Act at issue here.
[28] Section 17 of the Settlement Act derives from and implements the provision of the Raukawa Deed of Settlement. The deed was in a format routinely used in settlement deeds of this nature. It sets out the background; a historical account of how the Raukawa historical grievances arose; acknowledgements and apologies by the Crown; a recording of the settlement terms, including redress and a provision for the implementation through the settlement legislation; cultural, financial and commercial redress; and various other provisions. It annexed a number of attachments. These included the maps of areas of land to which the Crown’s statutory acknowledgement and deed of recognition in favour of Raukawa applied. One of the maps to which this applied included the area of Lake Maraetai including the relevant dam.
[29] The settlement deed recorded cultural redress was to be provided by way of a statutory acknowledgement over the areas of land. The deed recorded that the legislation would provide the Crown’s acknowledgement of the statements by Raukawa of “the lands” particular cultural, spiritual, historical and traditional
association” with Raukawa.23 The cultural redress is non-exclusive.24 As I noted, Lake Maraetai was included in those lands.
[30] The deed recorded that the historical claims settlement was final and the Crown was released and discharged from all its obligations and liabilities in respect of the historical claims.25 Nevertheless, that settlement did not affect the rights and interests claimed by Raukawa outside the historical claims settlement. The settlement deed provided:
4.5 Except as provided in this deed or the settlement legislation, the parties’ rights and obligations remain unaffected.
4.6 Without limiting clause 4.5, nothing in this deed or the settlement legislation will:
4.6.1extinguish or limit any aboriginal title or customary right that Raukawa may have; or
…
4.6.3except as provided in this deed or the settlement legislation:
(a)affect a right that Raukawa may have, including a right arising:
(i) from the Treaty of Waitangi or its principles; or
(ii)under legislation; or
(iii)at common law (including in relation to aboriginal title or customary law); or
(iv)from a fiduciary duty; or
(v)otherwise; or
…
[31]The deed went on to provide:
Implementation
4.9The settlement legislation will:
23 Deed of Settlement, above n Error! Bookmark not defined., cl 5.3.1.
24 Clause 5.32.
25 Clause 4.4.
4.9.1on the terms provided by part 3 of the legislative matters schedule settle the historical claims;
4.9.2on the terms provided by part 4 of the legislative matters schedule:
(a)exclude the jurisdiction of any court, tribunal, or other judicial body in relation to the historical claims and the settlement;
(b)provide that the legislation referred to in paragraph 4.4 of the legislative matters schedule does not apply:
(i)to a cultural redress property, a cultural early release property, a purchased commercial property if settlement of that property has been effected, a purchased deferred selection property if settlement of that property has been effected, or any RFR land; or
(ii)for the benefit of Raukawa or a representative entity;
(c)require any resumptive memorial to be removed from a certificate of title to, or a computer register for, a cultural redress property, a cultural early release property, a purchased commercial property if settlement of that property has been effected, a purchase deferred selection property if settlement of that property has been effected, or any RFR land;
…
[32] I now turn to the Settlement Act which implements the settlement. The Settlement Act provides at s 11:
11 Interpretation of Act generally
It is the intention of Parliament that the provisions of this Act are interpreted in a manner that best furthers the agreements expressed in the deed of settlement.
[33] Underscoring the importance of the provisions of the deed of settlement is the special provision made for free access to the deed of settlement on application to the Chief Executive of the Ministry of Justice.26
[34] The Settlement Act summarises the historical account on which the Crown acknowledgement and apologies are based.27 It records:28
26 Raukawa Claims Settlement Act 2014, s 20.
27 Section 8.
28 Section 8(1).
Raukawa have practiced mana, whakahaere, kaitiakatanga and ahikaroa within their rohe and have a special relationship to the land and the waterways in this area. Waterways in particular have been the centre of Raukawa commercial, social, cultural, and spiritual life.
[35] In s 9, the Crown acknowledges that its representatives and advisers acted unjustly and in breach of the Treaty of Waitangi in that it failed “for many years to deal with the remaining long-standing grievances of Raukawa in an appropriate way and that recognition of those grievances is long overdue”.29
[36] In the Crown’s acknowledgement of the matters giving rise to the grievances, of particular relevance to Wai 85 is the acknowledgement of the grievance of Raukawa in relation to the Crown’s taking and gifting the Mangakino land to Wairarapa Moana. It says:
9 Acknowledgements
…
(11)The Crown acknowledges that in 1915 it gifted 20,000 acres of land in the Pouakani block to an iwi with no ancestral ties to the area and that this gift exacerbated the grievance that Raukawa continue to feel today about the earlier loss of their interests in the Pouakani lands.
[37] The statutory acknowledgement and deeds of recognition provided by the Crown are primarily to allow Raukawa to use the acknowledgements of grievances to support its claims to mana whenua and other rights over the land before the Environment Court and similar consent authorities.30 But the acknowledgement is not limited to those purposes.
[38] The Settlement Act follows the provisions of the deed of settlement by recording that the historical claims settlement is final but leaves open Raukawa’s existing rights:31
Except as expressly provided by this Act, nothing in this Act –
(a)affects a right that Raukawa may have, including a right arising—
(i)from the Treaty of Waitangi or its principles; or
29 Section 9(2).
30 Section 29.
31 Section 15(6).
(ii)under any enactment; or
(iii)at common law (including in relation to aboriginal title or customary law); or
(iv)from a fiduciary duty; or
(v)in any other way:
…
[39] The wide general ouster in relation to the final settlement of the historical claims is as follows:32
Despite any other enactment or rule of law, on and from the settlement date, no court, tribunal, or other judicial body has jurisdiction (including the jurisdiction to inquire or further inquire, or to make a finding or recommendation) in respect of—
(a)the historical claims; or
(b)the deed of settlement; or
(c)this Act; or
(d)the redress provided under the deed of settlement or this Act.
[40] Section 15(9) of the Act notes that it does not exclude the jurisdiction of a court, tribunal or other judicial body in respect of the interpretation or implementation of the deed of settlement or the Settlement Act.
[41] Section 17 is contained in a part of the Act titled “Resumptive memorials no longer to apply” and provides that ss 8A-8HJ of the 1975 Act did not apply for “the benefit of Raukawa”.
Interpreting s 17 of the Settlement Act
[42] Wairarapa Moana supported the Tribunal’s wide interpretation of “benefit” and its analysis supporting that conclusion. In addition, it raised a number of other points to which I refer below. However, I first deal with interpretation.
32 Section 15(8).
[43] The usual rules of interpretation apply here. Interpretation commences with the text informed by the purpose and the context,33 including the statutory scheme of the relevant legislation.34
[44] The Tribunal interpreted the word “benefit” in s 17 broadly. In support of this interpretation, it referred to the primary dictionary meaning of “benefit” as “advantage” and noted that “for the benefit of” is defined as “on behalf of” according to the Concise Oxford Dictionary.35
[45] Dictionary definitions may be useful as a starting point in the interpretation of a word or phrase in legislation but they cannot be divorced from the context. Substituting the statutory phrase “for the benefit of” with “on behalf of” does not fit well but in any event it gives little assistance to the meaning of “benefit” in the phrase. The issue remains what is the nature of the benefit targeted by s 17.
[46] In order to interpret the text, it is necessary to understand the whole picture.36 I am of the view that the following provisions are of particular importance to that interpretation:
(a)The Settlement Act requires that the Act must be interpreted in a manner that furthers the agreements expressed in the deed of settlement.37
(b)Both the deed of settlement and the Settlement Act record that, except as provided in the deed or settlement legislation, the parties rights and obligations remain unaffected. In particular, nothing in the deed or settlement legislation extinguished any aboriginal title or customary right that Raukawa may have. In addition, except as provided in the deed or settlement legislation, nothing affected a right Raukawa might
33 Interpretation Act 1999, s 5. Commerce Commission v Fonterra Co-Operative Group Ltd [2007] NZSC 36; [2007] 3 NZLR 767 at [24].
34 Westfield (NZ) Ltd v North Shore City Council (2005) NZSC 17, [2005] 2 NZLR at 597 at [6].
35 Concise Oxford Dictionary (12th ed, Oxford University Press, Oxford, 2011).
36 Attorney-General v Trustees of the Motiti Rohe Moana Trust [2017] NZHC 1429 [2017] NZRMA 370 at [33].
37 Raukawa Claims Settlement Act, s 11.
have, including a right arising from the Treaty or its principles, under legislation, at common law, from a fiduciary duty or otherwise.38
[47]The relevant provisions of the 1975 Act include the following:
(a)The purpose of the Act is to “provide for the observance, and confirmation, of the principles of the Treaty of Waitangi by establishing a Tribunal”.39
(b)The Tribunal must have regard to the two texts of the Treaty in exercising its functions under the Act.40
(c)The Tribunal may regulate its own procedures in a manner it thinks fit and, in doing so, may adopt such aspects of “te kawa o te marae”41 as it thinks appropriate in the particular case.42
[48] It is common ground that the Tribunal largely conducts its proceedings based on the oral tradition of Māori.43
[49] In that context, a provision precluding Raukawa from a right of participation in relation to questions arising in Wai 85 should be clear and unambiguous. Wai 85 includes land over which Raukawa claims mana whenua. The land is the subject of an express statutory acknowledgement by the Crown that the Crown’s actions exacerbated Raukawa’s Treaty grievances.
[50]Ms Siciliano for Rangitāne put it as follows:
Treaty settlements generally are intended to restore the relationship between iwi groups and the Crown. Historical Treaty settlements do not encompass the extent of iwi rights under te Tiriti o Waitangi/the Treaty of Waitangi either, as they relate only to historical Treaty claims. Beyond what is recorded in a
38 Deed of Settlement, cls 4.3 and 4.6. Raukawa Claims Settlement Act, ss 15(4) and (5).
39 Treaty of Waitangi Act, Title.
40 Section 5(2).
41 Customs of the marae: Yearbook of Judge Fox “Access to Customary Law: New Zealand Issues” (2010/11) 13/14 Yb New Zealand Jurisprudence 224.
42 Treaty of Waitangi Act 1975, sch 2, cl 5(9).
43 The right to participate and be heard is part of the tikanga of the Tribunal, see Fox, above n 41, at 231-239.
Deed of Settlement, a settling iwi group’s wider interests and rights are not affected or altered, including rights under te Tiriti O Waitangi/the Treaty of Waitangi or customary law.
[51] Ms Hardy for the Crown argued that s 17 disapplies “for the benefit of Raukawa” the suite of provisions in ss 8A to 8HJ of the 1975 Act which would otherwise permit Raukawa to seek the benefit of binding recommendations for the return of land.
[52] Each of the enactments specified under s 17(2) of the Settlement Act were related to making or securing resumption in some form. The types of property listed in s 17(1)(a) to (e) are pieces of land identified in the Settlement Act. Section 17(1)(f) is intended to bar Raukawa from claiming compensation, resumption or similar valuable benefits over lands which might be available for claims or over non-listed lands under the listed enactments.
[53] I am of the view that Raukawa’s interpretation of s 17 of the Settlement Act is correct. The Tribunal failed to take into account the purpose, context and the statutory scheme of the relevant legislation. In summary, a narrow interpretation of s 17(2)(f) confining it to precluding Raukawa from making a valuable claim for compensation or resumption or similar remedies, rather than precluding the right to participate, is supported by:
(a)Tikanga and Treaty principles, including the rights to participate by interested Māori and be heard on questions covering tikanga, customary law and Treaty breaches where those matters affect them provided under the 1975 Act.
(b)The rights preserved in the deed of settlement and under the Settlement Act.
(c)The right to be heard, reinforced by the tikanga of the Tribunal in relation to the conduct of its hearings as well as the right as it exists at common law and under the Bill of Rights Act 1990.
[54] I now turn to the other matters referred to by the Tribunal in its decision as supporting its interpretation.
[55]The Tribunal said:44
Put simply, if the interested parties seeking to participate did not believe that participation would benefit or advantage them, they would not be pursuing involvement. Both parties have interests that they wish to advance before the Tribunal to influence its decisions upon the applications before it. For them to be motivated to pursue those objectives, it logically follows that they consider that, if they succeed, they will benefit. Benefit need not be financial for it to enhance their interests.
[56] This focus on motivation and assumption that such motivation must be to pursue a benefit takes the focus away from the fact that what is at issue is the right to participate.
[57] The Tribunal gave the Central North Island Forest Land Collective Settlement Act 2008 (CNS Act) as an example of an approach which should be taken by the legislature where it was intended a settled party be granted a right to participate in future hearings about other matters.45 The relevant provision is found in the CNS Act at s 24(d):
[D]espite section 8HD of that Act, any iwi of the CNI Iwi Collective is entitled to appear and be heard by the Waitangi Tribunal on the question of the historical claim of the other CNI claimant to CNI forests land …
[58] The CNS Act provided for the settlement of a complex group of Crown Forestry claims by a collective of Māori iwi claimants. The Crown retained 10 per cent of the Crown forestry estate in issue to provide for further settlements with iwi that were not part of the Crown North Island iwi collective group (CNI collective).
[59] The Act incorporated various mechanisms to ensure the settled CNI collective retained an absolute right to be consulted and to be heard on any settlements proposed with other iwi including about which specific area of the Crown forest would be
44 Waitangi Tribunal, above n 1, at [17].
45 Mr Ferguson for Wairarapa Moana also referred to a similar provision in the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. This related to a complex settlement covering the Waikato River and the comments above concerning the CNS Act apply equally to those arrangements.
transferred to the other claimants.46 Similarly the Waikato-Tainui legislation, which was mentioned in submissions, related to a complex settlement covering the Waikato River. No qualifying interest was required under s 8C of the 1975 Act in relation to either of those Māori iwi groups.47
Haronga decisions
[60] The Tribunal in its decision referred to Haronga48 as supporting its view that Raukawa was precluded from participating in Wai 85 by s 17 of the Settlement Act. It said that:49
… to allow settled parties to participate in hearings, and potentially influence the Tribunal’s exercise of jurisdiction to make binding recommendations about SOE assets or Crown forest assets, will inevitably lead to consideration of the context and content and application of the Crown’s Treaty settlement policies. The higher courts’ decisions in Haronga v Attorney-General [2015] NZHC 1115 and Attorney-General v Haronga [2017] 2 NZLR 394 are authority for the Tribunal’s [sic] exercising its discretions under the binding recommendation provisions independently of such considerations.
[61] The Haronga decisions do not support the proposition that a settled party is precluded from being an interested party before the Tribunal under s 8C of the 1975 Act. I accept Raukawa’s submission that the Haronga decisions determined that the Tribunal could not defer applications for binding measures by claimants because of the possibility of settlement in accordance with the Crown’s Treaty settlement policy.50
[62] Mr Keith noted that the earlier Supreme Court decision in Haronga supported the need for a careful and detailed inquiry to be undertaken by the Tribunal in adjudicatory claims.51 The Supreme Court stressed the need for the Tribunal to proceed in a robust and careful way. It said:52
Where the Tribunal has decided a claim is well founded and the remedy sought is return of Crown forest land, the inquiry must address whether the land is to be returned to Maori ownership, any terms and conditions
46 CNS Act, s 23 maintains the general finality clause in s 7. Materially there is no reference to the disapplication provision in s 30 which corresponds to s 17(1)(a)-(d) of the Settlement Act.
47 Central North Island Forests Land Collective Settlement Act 2008, s 24(d).
48 Attorney-General v Haronga, above n 18.
49 Waitangi Tribunal, above n 1, at [19].
50 Attorney-General v Haronga, above n 18, at [60].
51 Haronga v Waitangi Tribunal [2011] NZSC 53, [2012] 2 NZLR 53 at [91] and [106].
52 At [84] and [89].
of return and, if applicable, to which Maori or group of Maori the land is to be returned.
…
[89] Particular care not to preclude completion of the inquiry is necessary in such cases. They are not the same as those in which the recommendations of the Waitangi Tribunal may or may not be accepted by the Crown ... In the case of Crown forest land, the ‘recommendatory’ obligation of the Tribunal is an adjudicatory obligation, even if the relief available to it is a matter for judgment.
Other matters raised
[63] Wairarapa Moana also submitted that it is not the role of the Tribunal to adjudicate between claimants as to customary interests in particular land. Mr Ferguson cited the East Coast Settlement Report in which the Tribunal said that its intended role is not an arbiter of disputes between claimants over matters of identity.53
[64] In my view, while that may have been an appropriate observation in the East Coast Settlement Report context, I do not consider the Tribunal is so limited generally. The 1975 Act’s purpose is to provide for the observance and confirmation of the principles of the Treaty.54 There is nothing in the 1975 Act which limits the range of its inquiries in the manner suggested by Mr Ferguson. In fact, the Tribunal’s effectiveness is demonstrated by its expertise in dealing with tikanga Māori. This may well involve an exploration of competing interests claimed in tikanga and at customary law.55
[65] Wairarapa Moana further noted that even the present owner of the memorialised land (Mercury) has no right to be heard as it does not come within the allowed participants under s 8C of the 1975 Act. In my view this does not take the matter further. The memorial has been registered and the land earmarked by the Crown, and the Crown has a right to be heard.
[66] Mr Ferguson also submitted that mana whenua and issues of customary interest, such as those being claimed by Raukawa as an interest giving it a right to
53 Waitangi Tribunal The East Coast Settlement Report (Wai 2190, 2010) at 64.
54 Treaty of Waitangi Act 1975,Title.
55 Judge Fox, above n 42, at 233. The Supreme Court in Haronga at [106] noted that the obligation of the Tribunal was to find between completing claims.
participate in questions arising in Wai 85, are independent of the legal ownership of and title to the land. Therefore, regardless of any binding recommendations made in Wai 85, or other dealings with the land currently owned by Mercury, the issue of mana whenua and issues of customary interest exist and remain extant outside that legal ownership structure. This submission correctly recognises that the interests claimed subsist separately from the valuable benefits sought in relation to resumption. However, it is not the existence of the interests that is at issue in these proceedings, but rather the right to be heard on those interests.
The claims
[67] As will have been clear from the above, I have reached the conclusion that the Tribunal misinterpreted s 17 of the Settlement Act in relation to its application to s 8C of the 1975 Act.
Natural justice
[68] Raukawa also pointed to the Bill of Rights Act 1990 (BORA) which provides for the right to be heard under s 27(1). In addition, under s 6 of that Act wherever an enactment can be given a meaning that is consistent with that right that meaning must be preferred. That right can be excluded only through unequivocal words or patent necessary implication.56
[69] The applicant submitted the context is that of s 15(6)(a) of the Settlement Act which preserves the rights of Raukawa in relation to the Treaty of Waitangi and other enactments. This is in contrast to s 15(8), the express curtailing provision that limits the jurisdiction of any Court or Tribunal in relation to matters already settled. In the absence of an express curtailment of the right to be heard on a question as an interested party that right cannot be abrogated. The right to be heard in this jurisdiction is reinforced by the tikanga of natural justice as it applies in the Tribunal.
[70] The exclusion of Raukawa’s right to be heard on a question directly bearing on its mana whenua is also an exclusion of Raukawa’s right to natural justice. That right
56 B v Crown Health Funding Agency [2009] NZSC 97, [2010] 1 NZLR 338 (SC) at [52].
is particularly acute in an adjudicative forum.57 While those rights may be abrogated by statute, that exclusion must be very clear.
[71] A submission by Wairarapa Moana was that the Crown might facilitate the provision of relevant evidence on behalf of Raukawa in much the same way as it will do for Mercury. It is apparent that the Tribunal considers the evidence of Raukawa will be relevant and helpful. The Tribunal intends to use it in some way. This suggests the importance of Raukawa’s participation from a practical point of view. The control of the provision of its evidence by the Crown would likely be unappealing to Raukawa. In addition, the right to participate and be heard is not met by what may be a selective and incomplete use of the evidence of Raukawa in circumstances where Raukawa would have no control over the manner in which its claims of mana whenua are recounted.
[72] The importance to Raukawa of being heard to voice its claims is summarised in the affidavit of Ms Epariama for Raukawa:
[29]… having the ability to participate taken away from us, merely 2 months before the hearing was set down, and over a year after we had filed evidence, is a complete breach of our rangatiratanga and principles of natural justice. It is history repeating itself if our voices and our views are not heard in relation to this land.
[30]I view the First Respondent as a place where Māori are able to voice their concerns about Crown actions and the impact of any remedies for those actions. It is a place where our rangatiratanga should be upheld and were [sic] it is important that we are able to tell our story, and put our perspective, in our own words. To be denied this right today is just repeating the failures of the past. It means we are not able to protect our position ourselves, provide the First Respondent with information that we see as important for them to have, or simply have them hear our voice.
[73] The Crown argued as an alternative that, should the Court find that the Tribunal’s decision was correct, s 8C does not cover the whole field of natural justice in the inquiry. It invited the Court to observe that the Tribunal had a wide discretion to grant leave to Raukawa to participate to the extent that it would assist the Tribunal
57 The Tribunal has the power to make binding recommendations for resumption of the land. This is an adjudicative function.
in determination of the application or to the extent required by the principles of natural justice.
[74] The Tribunal’s decision in applications such as Wai 85 has been described as “ultimately adjudicatory” in contrast to the Tribunal’s ordinary recommendatory jurisdiction.58 Therefore, the Attorney-General submits the right to be heard on a question arising in Wai 85 under s 8C is all the more important to ensure the natural justice rights of Raukawa are served.
[75] Ms Hardy submitted that, if Raukawa’s rights under s 8C are found to be excluded by s 17 of the Settlement Act, the natural justice rights of Raukawa must exist independently of s 8C. The relevant provisions covering interested parties under the Commissions of Inquiry Act 1908 apply to the Tribunal proceedings by virtue of cl 8 of sch 2 of the 1975 Act. The Tribunal is deemed to be a commission of inquiry. However, as Mr Ferguson pointed out, these provisions are disapplied by s 8C of the 1975 Act in the following terms:
8C Right to be heard on question in relation to land transferred to or vested in State enterprise
…
(2)Notwithstanding anything in clause 7 of Schedule 2 or in section 4A of the Commissions of Inquiry Act 1908 (as applied by clause 8 of Schedule 2), no person other than a person designated in paragraph
(a) or paragraph (b) or paragraph (c) or paragraph (d) of subsection
(1) shall be entitled to appear and be heard on a question to which subsection (1) applies.
[76] Mr Ferguson submitted that s 8C(2) had the effect of excluding any right to appear by Raukawa at all.
[77] If I am wrong in my conclusion that the Tribunal has erred in quashing its decision, I am of the view that nevertheless Raukawa may well retain the right to be heard on the basis of its common law rights.59
58 Haronga, above n 51, at [88], citing Attorney-Geenral v Main [2009] NZCA 625 at [102].
59 This is supported by the rights to be heard under s 27(1) and interpretation provisions under BORA, s 6.
[78]The Court of Appeal in Re Erebus Royal Commission said:60
It seems to us highly unlikely that the New Zealand Parliament intended [commissions of inquiry] to be wholly free of the elementary obligation to give persons whom they have in mind condemning a fair opportunity of correcting or contradicting any relevant allegation.
… Section 4A of the Commissions of Inquiry Act, enacted in 1980 in place of briefer provisions and in time for the Erebus inquiry, provides:
4A Persons entitled to be heard –
(1)Any person shall, if he is a party to the inquiry or satisfies the Commission that he has an interest in the inquiry apart from any interest in common with the public, be entitled to appear and be heard at the inquiry.
(2)Any person who satisfies the Commission that any evidence given before it may adversely affect his interests shall be given an opportunity during the inquiry to be heard in respect of the matter to which the evidence relates.
(3)Every person entitled, or given an opportunity, to be heard under this section may appear in person or by his counsel agent.
[79] The reference in that quote is to persons the Tribunal “have in mind condemning” which is not the situation here. Nevertheless, it applies by analogy. The Tribunal is dealing with claims based on tikanga and customary rights acknowledged by the Crown and of significant importance to Raukawa. This may support the right to be heard outside the provisions of s 8C of the 1975 Act.
[80] Section 8C of the 1975 Act may be seen as a recognition by Parliament that natural justice should apply in the present circumstances. It does not purport to enact a complete code of procedure or to cover the whole field of natural justice, which would not be easy in a statute of this kind.
[81]The point was emphasised in Re Royal Commission on Thomas Case:61
Next the Court will intervene to secure that the requirements of natural justice are met or to condemn the result if they are not – that is to say that persons interested (apart from any interest in common with the public) are afforded a fair opportunity of presenting their representations and meeting prejudicial matters: see Re Royal Commission on State Services [1962] NZLR 96, 117;
60 Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No 2) [1981] 1 NZLR 618 at 627- 628.
61 Re Royal Commission on Thomas Case [1982] 1 NZLR 252 (CA) at 258.
Re Erebus (No. 2). In that area the Court is concerned with the reality of fair play.
[82] The Tribunal itself has indicated the importance of the evidence of Raukawa and that it will review that evidence or parts of it. It will need to consider whether as a matter of natural justice Raukawa should have the opportunity to be heard to address those questions that may affect its claims of mana whenua, customary rights or other rights preserved under the Settlement Act. That is a matter for consideration by the Tribunal in due course and not one for which determination is required in these proceedings.
Conclusion
[83] I now consider the claims as they have been set out in the Statement of Claim and identify those which I find have been made out and the reasons.
(a) Ground 1: irrelevant considerations
The Tribunal:
(a)Misinterpreted the effects of the Haronga decisions by applying them in support of its interpretation of s 17 of the Settlement Act (Haronga v Attorney-General [2015] NZHC 1115 and Attorney-General v Haronga [2017] 2 NZLR 394 (CA)).
(b)Took into account the Central North Island Forests Land Collective Settlement Act 2008 in a manner which was not analogous to the Raukawa situation.
(c)Took into account other irrelevant considerations as follows: Raukawa’s motivation for seeking to be an interested party. There was no evidence before the Tribunal on this issue and in any event the motivation was irrelevant to the interpretation of s 17 of the Settlement Act and Raukawa’s right to participate.
(d) Ground 2: natural justice
The decision to preclude Raukawa from participation in a question arising in Wai 85 when it has a special interest is a breach of natural justice flowing from the right to be heard recognised by tikanga, common law and is contrary to s 27(1) of NZBORA.
(e) Ground 3: unreasonableness
This ground was withdrawn.
(f) Ground 4: relevant considerations unconsidered
The Tribunal failed to consider the purpose and context of s 17 of the Settlement Act.
The Tribunal failed to consider the purpose and context of the Treaty of Waitangi which it is required to consider in exercising its functions under s 5(2) of the 1975 Act.
[84] In summary, I adopt Mr Keith’s submission as to the meaning of s 17. He submitted the straightforward meaning of s 17 of the Settlement Act is:
(a)under s 17(1)(a)-(d), land transferred by or under the Settlement Act is no longer subject to the mechanisms under the listed enactments; and
(b)under s 17(1)(f), those mechanisms do not apply for the benefit of Raukawa.
Therefore, what s 17 does do is provide that:
(a)the settlement proceeds themselves cease to be subject to the various mechanisms identified in the entitlements listed in s 17(2); and
(b)Raukawa cannot invoke those mechanisms in respect of other land.
[85] Section 17 does not exclude Raukawa from future participation in relevant proceedings. Contrary to the submission recorded by the Tribunal in its decision, that section is neither explicit nor does it include the words “rely on”.
[86] The provisions in s 8C of the 1975 Act are directed at ensuring fair participation by Māori who have a special interest in a question arising before the Tribunal. That participation also ensures that the Tribunal has the material it needs to make a robust determination. The participation does not bestow a free-standing benefit on Raukawa. To exclude Raukawa’s right to be heard and participate would require clear and unambiguous words which are not contained in s 17 of the Settlement Act.
Orders
[87] The Crown suggested that this Court was in a position to direct that the previous decision granting party status should apply following the quashing of the October decision. This was opposed by the third respondent. Mr Ferguson indicated that the original decision concerning party status had been made without allowing the parties to the proceeding to make proper submissions. This was the reason the decision was revisited in October following submissions. Therefore, while he accepted that faced with the claim by Raukawa of mana whenua the Tribunal may well find it had a qualifying interest, nevertheless he could not concede that point in the absence of instructions.
[88] I am of the view that in those circumstances the better option is to quash the Tribunal’s October decision and allow the Tribunal to reconsider the application by Raukawa under s 8C of the 1975 Act insofar as the qualifying interest is concerned. It is the body with special expertise on issues such as mana whenua.62
[89]I make that order accordingly.
62 Counsel for the parties participating agreed this order was the better option in the circumstances.
Costs
[90] This point of the judgment follows from discussions with counsel at the conclusion of the delivery of my judgment.
[91] The applicant indicated it wished to pursue costs and has filed written submissions.
[92]By consent, I reserve the issue of costs noting the applicant’s present stance.
[93]If counsel are unable to agree on costs, they are to file submissions as follows:
(a)The other parties are to file memoranda on or before 15 March 2019.
(b)The applicant is to file any response on or before 20 March 2019.
Grice J
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