Roebeck v Attorney-General - [2023] NZSC 95

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 10/2023
[2023] NZSC 95

BETWEEN	DANELLA TAPAHINGA ROEBECK First Applicant
AND	NGĀTI PAOA TRUST BOARD Second Applicant
AND	ATTORNEY-GENERAL First Respondent
AND	GLEN ANDREW TUPUHI, TANIA AROHA ROCHELLE TARAWA, HEREAROHA FRANCIS SKIPPER, MIHINGARANGI FORBES, ANAHERA SADLER, LORRAINE RANGITAHI POMPEY AND JAMES RATAHI AS TRUSTEES OF THE NGĀTI PĀOA IWI TRUST Second Respondents

Court:	O’Regan, Williams and Kós JJ
Counsel:	D A C Bullock and S J Humphrey for First Applicant L L Black for Second Applicant J R Gough, J B Watson and A H Ou for First Respondent M K Mahuika and T N Hauraki for Second Respondents
Judgment:	31 July 2023

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.

BThe applicants must pay the respondents one set of costs of $2,500.

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REASONS

The applicants—Ms Roebeck and the Ngāti Paoa Trust Board (Trust Board)—seek leave to appeal directly to this Court against the dismissal by McQueen J of three separate but closely related judicial review proceedings.[1] The proceedings were brought by certain kuia of Ngāti Kauahi—a hapū of Ngāti Pāoa—and the Trust Board. Ms Roebeck is co-chair of the Trust Board and one of the kuia of Ngāti Kauahi.
[1]Roebeck v The Attorney-General [2022] NZHC 3341 [HC judgment]. The first proceeding (422) was brought by three kuia of Ngāti Kauahi (one of whom was Ms Roebeck) and challenged Crown decisions in relation to ratification of the Ngāti Pāoa settlement deed. The third proceeding (424) is a mirror challenge brought in the name of the Trust Board. In the second proceeding (423), the Trust Board challenged the Waitangi Tribunal’s refusal to grant urgency to its ratification related claim (Waitangi Tribunal Decision on application for an urgent hearing (Wai 2982, 2021)).
The applicants challenge several Crown decisions and one of the Waitangi Tribunal. All challenges relate, either directly or indirectly, to whether it was open to the Crown to accept that Ngāti Pāoa iwi had ratified the terms of a deed entered into between the Crown and Ngāti Pāoa negotiators, purporting to settle the iwi’s Treaty claims. A related issue is whether the Ngāti Pāoa Iwi Trust (the Iwi Trust) ought to receive both the assets proposed to be transferred to the iwi in the settlement, and certain land currently vested in the Trust Board as trustee on behalf of the iwi.
Since these proceedings were instituted, a Ngāti Pāoa Treaty settlement has been incorporated into the Ngāti Pāoa Claims Settlement Bill. The Bill was introduced on 13 December 2022, read for the first time on 21 June 2023 and referred to the Māori Affairs Select Committee. The Committee is expected to report back to the House on 21 December 2023. Therefore, leave to bring a direct appeal is sought.

Background

The background to these proceedings may be briefly summarised as follows.

Settlement negotiations

The Ngāti Paoa Trust Board was established in 2004 to represent the iwi. In 2009, 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.

Continue reading Roebeck v Attorney-General

Details

AGLC: Roebeck v Attorney-General [2023] NZSC 95
Case: [2023] NZSC 95
Decision Date: 31 July 2023

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal directly to the Court against the dismissal of judicial review proceedings brought by Ms Roebeck and the Ngāti Paoa Trust Board. The applicants sought to challenge several Crown decisions and the Waitangi Tribunal’s refusal to grant urgency to the Trust Board’s ratification-related claim. These challenges were related to whether it was open to the Crown to accept that Ngāti Pāoa iwi had ratified the terms of a deed settling the iwi’s Treaty claims, and whether the Ngāti Pāoa Iwi Trust should receive both the assets proposed to be transferred to the iwi in the settlement and certain land currently vested in the Trust Board as trustee on behalf of the iwi. The applicants sought leave to appeal directly to the Supreme Court due to the enactment of the Ngāti Pāoa Claims Settlement Bill, which was under consideration by the Māori Affairs Select Committee.

The Court considered the exceptional circumstances test in section 75(b) of the Senior Courts Act 2016 and the usual leave criteria in section 74. The Court found that the applicants’ proceeding did not seek to vindicate substantive rights whose existence was not bound up in the settlement process, but rather, it was a direct challenge to the proposed legislation itself. Furthermore, the implementing legislation was in concrete form and under active consideration by a Select Committee, meaning the applicants had to express their views in that forum rather than in the courts. The Court held that there were no exceptional circumstances sufficient to meet the threshold in section 75(b).

The application for leave to appeal was dismissed, and the applicants must pay the respondents one set of costs of $2,500. The Supreme Court concluded that the applicants’ concerns were best addressed through the parliamentary process rather than the courts.

Orders