Raukawa Settlement Trust v Waitangi Tribunal

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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…