Ririnui v Landcorp Farming Ltd - [2014] NZHC 1128

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-2915 [2014] NZHC 1128

UNDER the Judicature Amendment Act 1972

BETWEEN

MITA MICHAEL RIRINUI Plaintiff

AND

LANDCORP FARMING LIMITED First Defendant

THE MINISTER OF STATE-OWNED ENTERPRISES and THE MINISTER OF FINANCE

Second Defendants

THE ATTORNEY-GENERAL Third Defendant

Hearing: 15-16 April 2014

Counsel:

A N Isac and J P Koning and G M Richards for Plaintiff
S A Barker and L M Brazier for First Defendant
J R Gough and S J Humphrey for Second and Third Defendants

Judgment:

26 May 2014

INTERIM JUDGMENT OF WILLIAMS J

[1] Landcorp is the vendor in an unconditional agreement for the sale of one of its dairy farms Whārere Farm to a private third party Micro Farms Ltd (Micro Farms). Whārere Farm is a 404 ha operation situated in mid-coastal Bay of Plenty between Te Puke and Matatā. The land title carries a standard resumption memorial pursuant to s 27B of the State-owned Enterprises Act 1986 (the SOE Act). The sale will settle on 30 May 2014.

[2] Ngāti Whakahemo claims mana whenua in respect of the land in question.

Ngāti Whakahemo wants Whārere Farm back as part of its Treaty settlement

RIRINUI v LANDCORP FARMING LIMITED & ORS [2014] NZHC 1128 [26 May 2014]

package, saying this is the only Crown-related land still available within its traditional rohe. They say it is an asset that is not substitutable.

[3] Ngāti Whakahemo has an application for resumption currently before the Waitangi Tribunal. I understand a judicial conference was to be held by the Tribunal on 19 May 2014 in relation to the application but I do not know where matters have got to since. Ngāti Whakahemo wants the proposed Landcorp sale stopped.

[4] Ngāti Whakahemo sues:

(a) Landcorp – arguing that:

(i) the company is subject to s 9 of the SOE Act; and

(ii)by pursuing this sale, Landcorp is in breach of its s 9 obligations.

Alternatively, it is argued that the factual matrix of the sale process gives rise to a legitimate expectation that while Ngāti Whakahemo was in discussions with Landcorp over the land, Landcorp would not sell to anyone else.

(b)Landcorp’s shareholding Ministers – arguing that: (i) they are unquestionably subject to s 9; and
(ii)they should have used their powers as shareholders to step in to prevent Landcorp from selling;

(c) the Attorney-General on behalf of the Office of Treaty Settlements (OTS) arguing that OTS made an error of law in mistakenly concluding that Ngāti Whakahemo’s claims had been settled. This, the applicant says, is the original sin tainting all subsequent acts and omissions of the Crown Ministers and Landcorp.

[5] Landcorp responds that:

(a) it is not the Crown and s 9 does not apply to it; and

(b)discussions between Ngāti Whakahemo and Landcorp at the time of the sale did not provide any basis for the expectation alleged.

[6] The Crown collectively responds that:

(a) decisions around Treaty settlements are political and not amenable to judicial review;

(b)the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 1128
Decision Date: 26 May 2014

CaseChat Overview and Summary

Mita Michael Ririnui, on behalf of Ngāti Whakahemo, sought to prevent the sale of Whārere Farm by Landcorp Farming Ltd to Micro Farms Ltd. Ngāti Whakahemo argued that the sale was in breach of the Treaty of Waitangi and sought relief against Landcorp, the Minister for State-Owned Enterprises, and the Minister of Finance. The central legal issues were whether Landcorp was subject to the Treaty obligations under section 9 of the State-Owned Enterprises Act 1986, whether Ngāti Whakahemo had a legitimate expectation that the sale would not proceed without their involvement, and whether the Crown had a duty to intervene to prevent the sale. The Court found that Landcorp was not subject to section 9, but that the Office of Treaty Settlements (OTS) had failed to correctly assess Ngāti Whakahemo’s claims, which rendered its advice to Landcorp invalid. The Court also found that Ngāti Whakahemo did not have a legitimate expectation that the sale would not proceed. However, the Ministers had a duty to intervene if the sale would materially impair the Crown’s ability to provide a durable settlement to Ngāti Whakahemo, which the Court found was the case. The Court declined to set aside the sale agreement immediately but ordered consultations between the Crown and Ngāti Whakahemo and a temporary stand-down of the sale. The Court issued declarations and orders requiring reconsideration of the sale in light of Ngāti Whakahemo’s claims and mandated further consultations and a hearing.

Orders