Roebuck v Attorney-General
[2022] NZHC 3341
•12 December 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-404-422
[2022] NZHC 3341
UNDER Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules IN THE MATTER
of a decision of the Crown, through the Minister for Treaty of Waitangi Negotiations, to proceed to sign a Ngāti Pāoa Deed of
Settlement
BETWEEN
DANELLA TAPAHINGA ROEBECK
First Applicant
QUEENIE BERNADETTE MOHI
Second ApplicantPAULINE OGDEN
Third ApplicantAND
THE ATTORNEY-GENERAL
First Respondent
THE NGĀTI PĀOA IWI TRUST
Second Respondent
CIV-2021-404=423 UNDER
the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules
BETWEEN
THE NGĀTI PĀOA TRUST BOARD
Applicant
AND
THE WAITANGI TRIBUNAL
First Respondent
THE ATTORNEY-GENERAL
Second RespondentTHE NGĀTI PĀOA IWI TRUST
Third Respondent
ROEBECK & ORS v THE ATTORNEY-GENERAL [2022] NZHC 3341 [12 December 2022]
CIV-2021-404-424 UNDER
the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules
BETWEEN
THE NGĀTI PĀOA TRUST BOARD
Applicant
AND
THE ATTORNEY-GENERAL
First Respondent
THE NGĀTI PĀOA IWI TRUST
Second Respondent
Hearing: 21–22 November 2022 Appearances:
D A C Bullock and S J Humphrey for Applicants in CIV-2021- 404-422
L Black for Applicant in CIV-2021-404-423 and CIV-2021-404- 424
J R Gough, M G A Madden and A Ou for First Respondent in CIV-2021-404-422 and CIV-2021-404-424 and Second
Respondent in CIV-2021-404-243
M K Mahuika and T N Hauraki for Second Respondent in CIV- 2021-404-422 and 424 and Third Respondent in CIV-2021-404- 423
Judgment:
12 December 2022
JUDGMENT OF McQUEEN J
Table of Contents
Para Nos
Background [7]
The claims [61]
Justiciability and comity [69]
The principle of comity in the Treaty settlement process [73] Does the principle of comity preclude the applicants’ claims? [92]
The Mandate Decision [107]
Misinterpretation of the Red Book and breach of legitimate expectation [109] Irrationality [147]
Ratification Decision [149]
Register differences [174]
Error regarding the former negotiators’ authority [199] Misinterpretation of a policy and breach of a legitimate expectation [204] The Farm proposal [210]
Decision was irrational as it has created further grievances [221]
Refusal to pause the signing of the Settlement Deed [224]
Judicial review of Waitangi Tribunal urgency decision [226] Waitangi Tribunal proceedings [229]
Irrationality [236]
Error of law [243]
Discussion [245]
Result [268]
Costs [269]
[1] Three proceedings have been heard together, all involving Ngāti Pāoa1 and the concerns of some members of Ngāti Pāoa regarding the settlement of Ngāti Pāoa’s claims under Te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty).
[2] The three named applicants in proceeding CIV-2021-404-422 (the 422 proceeding) are all kuia of the Kauahi hapū of the iwi Ngāti Pāoa (the Kauahi applicants).2 The first named applicant in the 422 proceeding is a trustee and co-chair of the Ngāti Pāoa Trust Board, which is the applicant in both CIV-2021-404-423 (the 423 proceeding) and CIV-2021-404-424 (the 424 proceeding). The applicants together advised the Court that the claims made in the 422 proceeding are essentially the same as the claims made in the 424 proceeding. I use the word ‘applicants’ to refer to the applicants in both the 422 and 424 proceedings and refer to them separately when necessary. The 423 proceeding is different, as it is a challenge by the Ngāti Pāoa Trust Board against a Waitangi Tribunal decision declining urgency to hear their claims.3
[3] The applicants contend that in deciding that it was satisfied that the people of Ngāti Pāoa had ratified the Ngāti Pāoa Deed of Settlement, the Crown acted unlawfully. The applicants say that this Court should declare this and related decisions unlawful and set them aside, along with the Deed of Settlement. Additionally, the Ngāti Pāoa Trust Board contends that the decision of the Waitangi Tribunal to refuse urgency for the hearing of its claim is unlawful and should be set aside with a direction the Tribunal reconsider its decision.
[4] The Attorney-General and the Ngāti Pāoa Iwi Trust as respondents reject these claims.
[5] I note that while these proceedings were filed in 2021, the applicants’ amended statements of claim are dated 12 October 2022. Those revised claims followed the completion of discovery in mid-2022 and the applicants’ efforts to engage with the Crown about their concerns.
1 Ngāti Pāoa has been variously referred to throughout the proceedings as Ngāti Paoa or Ngāti Pāoa. I have adopted the macron usage as reflected in the applicants’ submissions.
2 Mrs Roebeck states in her evidence that they are bringing the claim as kuia of Kauahi hapū and for the benefit of all members of that hapū.
3 Waitangi Tribunal Decision on application for an urgent hearing (Wai 2982, 2021) [Waitangi Tribunal Urgency Decision].
[6] The Crown indicated that the Ngāti Pāoa Settlement Bill is to be introduced to the House of Representatives no earlier than 13 December 2022. The applicants filed an application for interim orders on 28 October 2022. The parties were advised by the Court that urgency could be granted for a hearing but that it was highly unlikely that urgency could be allowed for two hearings before the end of 2022; the parties agreed to proceed to an early substantive fixture.4
Background
[7] Within parts of Ngāti Pāoa, there is a long history of disagreement as to the appropriate progression of the iwi’s settlement of its Treaty claims with the Crown. As much of the detail is relevant to the applicants’ claims, a rather fulsome chronology of events up to this point is necessary.
[8] In November 2004, the Ngāti Pāoa Trust was established under the Charitable Trusts Act 1957 and in December 2004 the Ngāti Pāoa Trust Board (the Trust Board) was incorporated.
[9] In 2008, the Tāmaki, Hauraki and Marutūāhu Collectives were established to negotiate collective redress for iwi and hapū with shared interests in the Kaipara. Tāmaki Makaurau and Hauraki regions. Ngāti Pāoa is a member of all three collectives. In 2009, groups in those regions who did not already hold Crown recognised mandates were invited by the Minister for Treaty of Waitangi (ToW) Negotiations to hold interim mandate hui to elect interim negotiators and determine whether to enter into negotiations with the Crown. Between late 2009 and May 2010, members of the Ngāti Pāoa claimant community resolved to elect interim negotiators to enter into Treaty settlement negotiations on behalf of Ngāti Pāoa.
[10] The Trust Board held three mandate hui in March 2011 as well as a hui-ā-iwi in April 2011 to allow the iwi of Ngāti Pāoa to elect and appoint their negotiators directly. Mr Rawiri5 and Mr Wilson were elected. In May 2011 the Trust Board’s
4 Minute of Gwyn J, dated 3 October 2022.
5 For clarity, this is not the same Mr Rawiri that was appointed as co-chair of the Trust Board later in the piece.
authority as a mandated entity was recorded in a Deed of Mandate, and the Crown formally recognised the mandate of the Trust Board in June 2011.
[11] The Crown and the three collectives referred to above progressed Framework Agreements which, amongst other matters, outlined the process for ongoing negotiations for collective redress for the shared interests in the regions. Between 2010 and June 2013, the interim (and then mandated) negotiators entered into various Framework Agreements and some other agreements with the Crown on behalf of Ngāti Pāoa as steps towards reaching a full and final Treaty settlement.
[12] In 2011, the Māori Land Court vested the Waiheke Farm Station (the Farm) and assets of the Waiheke Station Trust in the Trust Board as responsible trustee. The Farm had initially been gifted as redress to a trust to be held for the benefit of all members of Ngāti Pāoa following the Waitangi Tribunal report on the Waiheke Island claim (Wai 10) in 1987. It had since been vested in Pāoa, the eponymous ancestor, in 1989 and changed to Māori freehold land in 1998.
[13] In 2012 and 2013 respectively, the Ngāti Pāoa claimant community ratified the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Deed and the Pouara Farm On-Account Deed of Settlement, using the register of the claimant community held by the Trust Board.
[14] In 2013, it was believed that settlement of the Ngāti Pāoa Treaty claim was imminent. A Post Settlement Government Entity (PSGE) was required to receive redress from the Crown as a result of the iwi’s Treaty settlement. As a result, the Ngāti Pāoa Iwi Trust (the Iwi Trust) was established as the Ngāti Pāoa PSGE. This followed a Crown approved ratification process where adult members of Ngāti Pāoa were given the opportunity to vote. The Iwi Trust has (or will) also received redress in relation to the Collective Redress matters mentioned earlier.
[15] In July 2015, eight of the ten Trust Board trustees’ terms expired, with the other two expiring in December 2015. The result was that, until March 2017 (when ten new trustees were elected), the Trust Board was not operating in accordance with its Trust Deed and was considered by the Māori Land Court to be in “legal abeyance”.6
[16] It appears that around this time, Mr Rawiri and Mr Wilson (the negotiators) began reporting to the Iwi Trust in relation to settlement negotiations.
[17] Late in 2015, the Minister for ToW negotiations wrote to the Trust Board expressing his concern with the entity’s role in mandate maintenance and supporting the negotiators, noting that trustee elections needed to occur.
[18] In February 2016, a hui-ā-iwi was called by the Trust Board and the Iwi Trust. Several resolutions were passed. Relevant for present purposes is that the mandate of the negotiators, Mr Rawiri and Mr Wilson, was reaffirmed and the Trust Board and the Iwi Trust were to work together to reaffirm entity mandate. A second hui was called in April 2016 by the Iwi Trust where the claimant community reaffirmed the negotiators and the Trust Board as the mandated entity and directed the Trust Board to report to the Crown on how it had kept the iwi informed of progress with negotiations.
[19] In May 2016, the Minister wrote to the Trust Board noting that vacant trustee positions on the Trust Board needed to be attended to and trustee elections held, for the Crown to have confidence the Trust Board had the legal authority to act on behalf of the Ngāti Pāoa claimant community. In June 2016, the Crown met with the Trust Board, the Iwi Trust, and Mr Rawiri. There was agreement that the priority was to close negotiations and that there should be one entity to represent Ngāti Pāoa and this should be the Iwi Trust so that all Ngāti Pāoa’s assets would be held in one place. It was also agreed that a full board of trustees should be elected to the Iwi Trust.
6 Ngāti Pāoa Iwi Trust v Ngāti Pāoa Trust Board (2018) 173 Maniapoto MB 51 (173 WMN 51) at [62]; and Ngāti Pāoa Trust Board v Ngāti Pāoa Iwi Trust (2020) Māori Appellate Court MB 318 (2020 APPEAL 318) at [66]. The correct characterisation of this period is disputed between the parties as the Trust Board contends that despite there being technical non-compliance, the Trust Board continued to operate and carry out day to day activities.
[20] In September 2016, the Crown was advised that another hui-ā-iwi was organised where a resolution to merge the Trust Board and the Iwi Trust was defeated and a resolution for the Trust Board to hold elections was passed instead. In October 2016, on the application of Mrs Roebeck, the High Court ordered the establishment of a validation committee to compile an updated register of the Trust Board’s members and to oversee the election of new trustees to the Trust Board.
[21] The negotiators for Ngāti Pāoa initialled the Pare Hauraki Collective Redress Deed in December 2016 and this was ratified through a process over February to March 2017 led by the negotiators with support from the Iwi Trust. Also, in March 2017, the Trust Board held a Special General Meeting and elected ten new trustees and advised the Crown of this. In April 2017, the Iwi Trust held a Special General Meeting and resolved to appoint a further five trustees.
[22] The negotiators initialled the Ngāti Pāoa Deed of Settlement in August 2017. This occurred without the active involvement of the Trust Board.
[23] On 11 September 2017, the Crown wrote to counsel for the Trust Board to advise that ratification of the Ngāti Pāoa Deed of Settlement was the next step and encouraged the Trust Board, Iwi Trust and mandated negotiators to work together to ensure as many of the claimant community as possible have a say on ratification of the Deed of Settlement. By letter dated 19 September 2017, counsel for the Trust Board raised concerns as to process, (including as to its role and as to the whakapapa status of some on the Iwi Trust register) leading to various meetings and correspondence between the lead Crown negotiator on behalf of the Crown and the Trust Board. The Trust Board emphasised its concerns about process and whakapapa while the Crown emphasised that the Board did not have a monopoly on running a ratification process.
[24] The Trust Board subsequently filed two applications in the Māori Land Court, seeking:
(a)a determination of the appropriate representative of the descendants of Pāoa for the purposes of Ngāti Pāoa settlement and for the administration of the Farm pursuant to s 30 of Te Ture Whenua Māori Act 1993; and
(b)review of the Waiheke Station Trust.
In March 2018 counsel for the Trust Board, the Iwi Trust and the Crown attended a judicial conference to discuss the applications. By agreement, the application for review of the Waiheke Station Trust was adjourned by the Court pending ratification of the Ngāti Pāoa Deed of Settlement; and the Iwi Trust and Trust Board agreed to enter mediation to discuss compiling a voting register for ratification. This mediation took place in May 2018. The Trust Board and Iwi Trust agreed to establish a whakapapa committee for the purpose of creating one whakapapa verified database for voting on the Ngāti Paoa Deed of Settlement.
[25] Around this time, Mr Rawiri resigned as one of the mandated negotiators. In July 2018, the Trust Board appointed its co-chair Mr Harry Williams as replacement interim negotiator.
[26] The Trust Board and Iwi Trust agreed to adjourn any hearing before the Māori Land Court as the matters agreed at the mediation were still progressing. However, in August 2018 counsel for the Iwi Trust wrote to counsel for the Trust Board advising that no agreement had been reached on the definition of Ngāti Pāoa in whakapapa discussions and as a result the mediation had been unsuccessful. This was despite the definition of Ngāti Pāoa in the initialled Ngāti Pāoa Deed of Settlement having been previously accepted by the Ngāti Pāoa claimant community through the ratification process for the establishment of the Iwi Trust.
[27] In September 2018, the Iwi Trust filed an application under s 30 of Te Ture Whenua Māori Act 1993 seeking a review, amendment or setting aside of a 2009 order of the Court which determined the Trust Board was the most appropriate body to
represent Ngāti Pāoa in relation to the Resource Management Act 1991 (RMA) and the Local Government Act 2002 (LGA).7 There had earlier been disagreements between the Trust Board and the Iwi Trust over representation of Ngāti Paoa in the RMA and LGA context but the details of these are not presently relevant.
[28] Also in September 2018, the Office of Treaty Settlements wrote to the Trust Board about the Ngāti Pāoa path to settlement including seeking agreement that the ratification process be undertaken by the Trust Board. A hui-a-iwi was called by Mr Wilson with support from the Iwi Trust, at which a vote of no confidence in the Trust Board as mandated entity was passed. Further resolutions affirmed Mr Wilson as negotiator and did not affirm Mr Williams as negotiator. In October 2018, the Trust Board raised concerns with Mr Wilson about how he was conducting himself as negotiator.
[29] In November 2018, the Iwi Trust convened its full board for the first time at a special general meeting, having appointed five further trustees. Additionally, in November, the Minister for ToW Negotiations wrote to Mr Wilson, the Trust Board and the Iwi Trust indicating that mandate concerns could delay settlement and offering to fund facilitation to ease tensions between those parties. In December 2018, the Crown wrote to the Iwi Trust confirming the amendments required to its trust deed to meet the standard requirements for accountability and transparency in consideration of the on-account redress it had already received and the time that had elapsed since settlement was meant to occur.
[30] Also in December 2018, the Māori Land Court set an end date to the s 30 order made in 2009 which had appointed the Trust Board as an entity for RMA and LGA consultation.8 The Court found that at least during the period between 2015–2017 the Trust Board was legally inoperative, and that the Trust Board was no longer representative of Ngāti Pāoa. It also directed the parties to mediation. Although there was an appeal by the Trust Board to the Māori Appellate Court in which the Trust
7 Ngāti Pāoa (2009) 141 Waikato Maniopoto MB 271 (141 WMN 271).
8 Ngāti Pāoa Iwi Trust v Ngāti Pāoa Trust Board, above n 6. The Trust Board notes that this decision was made only in the context of RMA and LGA consultation.
Board was successful on a technical point, the overall decision of the Māori Land Court was not affected.9
[31] In February 2019 Mr Wilson and Mr Rawiri signed the Pare Hauraki Deed for Ngāti Pāoa (despite Mr Rawiri having earlier submitted his resignation as negotiator to the Trust Board).
[32] In March 2019 Te Arawhiti10 met with representatives of the Trust Board and Iwi Trust and discussed matters relating to mandate, ratification and the position of negotiators. In April 2019 the Trust Board held an Annual General Meeting (AGM) where those attending voted to remove the Farm asset consolidation proposal from the Ngāti Pāoa Deed of Settlement, to reconfirm the Trust Board’s mandate and to remove Mr Wilson as negotiator and replace him with Mr Williams. Nonetheless, Mr Wilson continued to act as negotiator for Ngāti Pāoa.
[33] In May 2019, the Crown provided an offer to Mr Wilson and Mr Rawiri, as well as the Iwi Trust, in relation to the opportunity to buy part of Point England (Kiano) Reserve. Also in May 2019, Te Arawhiti wrote to Mr Wilson, the Trust Board and the Iwi Trust advising it did not consider it could rely on the resolutions presented at the Trust Board AGM because of concerns over who was able to vote. Te Arawhiti sought a joint meeting of all parties. This occurred on 19 June 2019, for the purpose of discussing proceeding to ratification. The Trust Board refused to participate in the meeting because Mr Rawiri and another were also at the meeting, but the meeting continued.11
[34] On 21 June 2019, Te Arawhiti wrote to the Trust Board, the Iwi Trust and Mr Wilson advising that Te Arawhiti would continue to engage with those who were willing to proceed on steps towards commencing ratification and the requirements of that process. Over the second half of 2019, the Iwi Trust and Te Arawhiti communicated about the Iwi Trust’s proposed ratification process.
9 Ngāti Pāoa Trust Board v Ngāti Pāoa Iwi Trust, above n 6.
10 Being the Office for Māori Crown Relations, established in 2018.
11 Those attending on behalf of the Trust Board considered that it was insulting and a breach of tikanga to allow Mr Rawiri and another to attend the meeting without their prior knowledge and consent.
[35] In December 2019, the Crown finalised its alternative offer to the Point England redress. Te Arawhiti advised the Iwi Trust that negotiations on the Deed of Settlement were complete and revisiting the mandate for this purpose was not required, although seeking a mandate for future harbours negotiations remained open.
[36] On 31 December the Iwi Trust wrote to the Trust Board regarding its proposed mandate and ratification processes. In that letter, the Iwi Trust advised the Trust Board that it had formally commenced processes for ratification of the Deed of Settlement and seeking a mandate for settlement negotiations. The Iwi Trust invited the Trust Board to submit its register to Electionz, the independent company running the voting process, to ensure the maximum participation of Ngāti Pāoa members.
[37] In January 2020, the Iwi Trust and Mr Wilson commenced separate ratification processes for the Deed of Settlement and each also raised mandate matters. Communications subsequently occurred in January and February 2020 which are particularly relevant to the applicants’ claims.
[38] On 16 January, Te Arawhiti emailed the Trust Board, Iwi Trust and Mr Wilson advising that multiple parallel processes may cause “significant confusion” and affirming the Crown’s “duty to act in a way that supports and facilitates relationships between and within iwi”.
[39] On 24 January, Te Arawhiti wrote an open letter to the people of Ngāti Pāoa about mandate and ratification. This letter confirmed that Te Arawhiti did not think that at that point of the settlement process, the Ngāti Pāoa mandate needed to be reconsidered, because settlement negotiations had been concluded. It pointed out that the next step was ratification, which was usually led by the mandated entity but did not have to be. The letter also noted that two ratification processes had commenced, by Mr Wilson and the Iwi Trust respectively, and that Mr Wilson sought confirmation of his mandate as negotiator and the reappointment of Mr Rawiri as a mandated negotiator while the Iwi Trust also sought support for it as the mandated entity for future negotiations, able to appoint negotiators. Te Arawhiti expressed its view that one ratification process involving the Trust Board, the Iwi Trust and the negotiators would be preferable, and it had consistently encouraged the three parties to work
together on ratification. It recorded that if the two ratification processes continued, the Crown would need to review the results of both before deciding whether it could recognise them.
[40] On 29 January 2020, Te Arawhiti wrote to Mr Wilson, the Iwi Trust and the Trust Board regarding the two mandate and ratification processes that had commenced. Te Arawhiti asked that the ratification processes stop for the mandate discussions to occur. However, Mr Wilson and the Iwi Trust did not agree to pause their processes, as they had already been publicly advertised.
[41] On 19 February 2020, the Trust Board advised Te Arawhiti it would not commence a further ratification process and said it considered the two processes underway invalid. It foreshadowed litigation. The Trust Board proposed working with Te Arawhiti on a new robust and comprehensive mandate process.12
[42] Also on this date, Te Arawhiti wrote a further open letter to the Ngāti Pāoa claimant community seeking to address any confusion with the two ratification processes and encouraging participation in either or both processes, as it was said that both were essentially identical. The ratification resolutions on which voting was sought related to support for the Deed of Settlement, the alternative Point England redress and transfer of all assets and liabilities held by the Waiheke Station Trust to the Iwi Trust. It was only the mandate resolutions that differed within the two processes.
[43] On 22 February 2020, the Kauahi hapū wrote to the Crown asserting that only the Trust Board held the mandate, doubting that the Iwi Trust had ever been established legitimately, opposing the ratification processes and raising concerns about the registers used and the risk of eligible voters missing out on the opportunity to participate. Litigation was foreshadowed. On 28 February, Te Arawhiti wrote to the Kauahi hapū to ensure that they were aware they had the right and ability to participate in the ratification processes that were underway.
12 Mr Roebeck confirms in his affidavit that this letter is misdated as 19 January 2020.
[44] The ratification processes planned by the Iwi Trust and Mr Wilson took place. This involved sending out information and voting packs, newspaper advertisements, social media posts and the holding of hui.13 By mid-March 2020, the voting processes, managed by the independent election company, Electionz, were completed.
[45] On 11 May 2020, the Iwi Trust wrote to Te Arawhiti providing a report on its ratification process. This included the Iwi Trust validation process for new registrations and special votes. The Iwi Trust’s whakapapa validation committee, validating new registrations and special votes, was constituted in accordance with its Trust Deed. The report also discussed why some registrations or special votes could not be validated, and the reasons why. The Iwi Trust expressed its view that the Crown should rely on its voting results rather than those from Mr Wilson’s ratification process.
[46] In June 2020, Te Arawhiti and Te Puni Kōkiri officials briefed the Minister for ToW negotiations and the Minister for Māori Development on the ratification processes undertaken by Mr Wilson and the Iwi Trust.
[47] The briefing paper records that 221 of the 550 (40 per cent) claimant community members registered to participate in Mr Wilson’s process voted and the results were:
13 These matters are discussed further below.
[48] It also records that 418 out of the 907 (46 per cent) claimant community members registered to participate in the Iwi Trust’s process voted and the results were:
[49] The Ministers approved the recommendations made by officials, including that the ratification processes demonstrated sufficient support from Ngāti Pāoa for the Deed of Settlement and for the Iwi Trust, Mr Wilson and Mr Rawiri to sign it.
[50] A hui was held between the Crown, the negotiators and the Trust Board to discuss the mandate and ratification processes on 23 June 2020. The Trust Board raised concerns about, amongst other things, the registers used and that members of the Trust Board had not received the information and voting packs. The Iwi Trust was invited to the hui but did not attend.
[51] On 1 July 2020 the Minister for ToW Negotiations and the Minister for Māori Development wrote to the Iwi Trust, the Trust Board and Mr Wilson to advise their agreement that the ratification results showed sufficient support from Ngāti Pāoa iwi members for the Crown and Ngāti Pāoa to enter into the settlement.14
[52] On 7 July 2020, the Trust Board filed an urgent application in the Waitangi Tribunal alleging breaches of the Treaty resulting in prejudice arising from Crown actions in relation to the settlement process and seeking an urgent hearing. The Trust Board wrote to the Minister for ToW Negotiations seeking, among other things, confirmation from the Crown it would not rely on the ratification results of the processes run by Mr Wilson and the Iwi Trust. The Minister responded, indicating he
14 As noted at [62], this decision is referred to as “the Ratification Decision” by the applicants.
did not consider it appropriate to comment on this, given the matters raised by the Trust Board were before the Waitangi Tribunal.
[53] On 20 January 2021 the Waitangi Tribunal declined the Trust Board’s application for urgency. This decision is the subject of the 423 proceeding.
[54] On 25 February 2021, Te Arawhiti officials and the lead Crown negotiator met with the Trust Board.15 The discussion canvassed the Trust Board’s concerns. The Trust Board and the Crown confirmed their respective positions on mandate, negotiators, the claimant community register and the inclusion of the Farm in the Deed of Settlement. The Crown noted the opportunity the Trust Board would have to make submissions to the Select Committee when settlement legislation was progressing through Parliament. The Crown agreed to formally advise the Trust Board of the proposed signing date for the Ngāti Pāoa Deed and to ensure that the Trust Board was provided a copy of the Deed when it was finalised for signing.
[55] On 1 March 2021, the Trust Board wrote to the Minister for ToW Negotiations expressing its view that it had been unlawfully excluded from the settlement process and that proceeding to sign the Deed of Settlement would perpetuate divisions within Ngāti Pāoa. On 3 March 2021, Te Arawhiti advised the Trust Board that 20 March had been proposed as the date to sign the Deed. On 10 March 2021, the Minister wrote to the Trust Board advising that he intended to sign the Ngāti Pāoa Deed on 20 March. The Trust Board wrote to the Minister requesting that the proposed signing on 20 March be deferred to resolve the Trust Board’s dispute over mandate and ratification because the Crown’s approach had continued the divisions within Ngāti Pāoa rather than bringing the people together.
[56] On 15 March 2021, these High Court proceedings were filed. The following day, the Minister advised the Trust Board that he declined their request not to sign the Deed of Settlement and indicated that he did not agree with the Trust Board’s characterisation of the Crown’s conduct or its consequences.
15 This was followed up by a letter from the lead negotiator for the Crown to the Trust Board dated 26 February 2021.
[57] On 17 March 2021, the Trust Board applied to this Court for interim orders seeking a declaration restraining the Crown and the Iwi Trust from signing the Deed of Settlement. The Court dismissed the application.16 The Deed was signed at Wharekawa Marae, Kaiaua, on the Whakatīwai Coast on 20 March 2021.
[58] On 30 May 2022, the Māori Land Court released its consent decision on the Waiheke Station Trust recording that the Trust Board as sole trustee is the legal owner of the Farm for the benefit of those who whakapapa to the eponymous ancestor Pāoa and requiring the Trust Board as trustee to establish and maintain an up-to-date list of beneficiaries.17
[59] Discovery in these proceedings was provided in mid-2022, in which the registers held by Mr Wilson, the Iwi Trust and the Trust Board were disclosed. Following its analysis of the registers, the Trust Board wrote to the Crown in August 2022 outlining the differences it had identified and asking that the Crown take no further steps to implement the settlement pending a new vote based on a consolidated register and to assist in facilitating tikanga-based processes between the Trust Board and the Iwi Trust to produce a common register for a fresh verification process.
[60] The Crown responded in September 2022 expressing its views that the flaws alleged by the applicants were misplaced and indicating that it would move to introduce settlement legislation shortly.
The claims
[61] As noted, the 422 and 424 proceedings against the Attorney-General and the Iwi Trust overlap almost entirely. For convenience, these are referred to in this judgment as the “Crown process proceedings”. Both proceedings are applications for judicial review of the same decisions made by the Crown and plead the same three causes of action.
[62]The decisions in issue are those of the Crown:
16 Ngāti Pāoa Trust Board v the Attorney-General [2021] NZHC 580.
17 Williams and Ors v Attorney-General (2022) 238 Waikato Maniapoto MB 83 (238 WMN 83).
(a)Not to pause the settlement process (including the ratification processes) to resolve the dispute that had arisen about the mandate of the Trust Board (the Mandate Decision);
(b)To recognise the outcomes of the ratification processes (the Ratification Decision). and
(c)To proceed to sign the Deed of Settlement (but only on the basis it was tainted by the errors pleaded in relation to the Mandate and Ratification Decisions).
[63] The first cause of action in both proceedings challenges the Mandate Decision on several grounds, including:
(a)The Crown misinterpreted the Red Book or otherwise breached a legitimate expectation about how it would make decisions in cases of mandate disputes; and
(b)Irrationality.
[64] The second and third causes of action in both proceedings challenge the Ratification Decision on several grounds, including:
(a)Material errors, including failing to take into account the register differences and not appreciating that the former negotiators lacked authority to represent Ngāti Pāoa;
(b)Breaches of legitimate expectations regarding the minimum standards that would be expected of ratification processes in the Red Book;
(c)Errors of law about the status of the Farm and procedural impropriety in failing to take active steps to ensure that all beneficiaries entitled to the Farm had an equal opportunity to participate in the ratification processes; and
(d)Irrationality because the processes could not be said to represent the will of Ngāti Pāoa, were likely to cause further grievances and lasting division and were therefore in breach of the Crown’s own policy for recognising the outcomes of ratification processes.
[65] The applicants seek the same relief in the Crown process proceedings, including:
(a)Declarations that the Mandate and Ratification Decisions were unlawful;
(b)A declaration that the Ratification Decision was in breach of the Crown’s policy for recognising the outcomes of ratification processes;
(c)A declaration that there was no rational or reasonable basis on which the Crown could have concluded that the motions put forward in those processes were ratified by Ngāti Pāoa; and
(d)An order setting aside the decision to enter into the Deed of Settlement, and the deed itself, as tainted by the public law errors in relation to the Mandate and Ratification Decisions.
[66] The 423 proceeding is an application for judicial review of the decision by the Waitangi Tribunal on 20 January 2021 not to grant an urgent hearing of the claim brought by Mrs Roebeck on behalf of the Trust Board (Wai 2982).
[67] The Trust Board pleads two causes of action in the 423 proceeding, challenging the Tribunal’s decision on the grounds that it:
(a)Was irrational; and
(b)Involved errors of law about the status of the Farm and whether the beneficial owners of the Farm had been consulted and consented to the inclusion of the Farm in the settlement.
[68] The Trust Board seeks relief in the form of a declaration that the Tribunal’s decision was irrational and/or involved errors of law, an order setting aside the decision and a direction that the Tribunal reconsider its decision.
Justiciability and comity
[69] The Crown and the Iwi Trust defend the Crown processes proceedings on the grounds that the challenged decisions are non-justiciable. It is appropriate to first address this defence, as, if the challenged decisions are non-justiciable, the Court need not go further.
[70] There are two aspects to justiciability. First, whether the subject-matter of the proceeding is something a Court should deal with. This is described as “a matter of comity”18 or, as the Supreme Court put it in Ngāti Whātua Ōrākei Trust v Attorney- General (Ngāti Whātua), “the principle of the non-interference of the court in parliamentary proceedings”.19 The second is whether the issue(s) arising are capable of being determined satisfactorily by a Court, or, in other words “whether judicial techniques lend themselves to articulating and resolving whatever it is that is in dispute”.20
[71] It is the former which is the predominant focus of the Court in this decision. This has been described by the Court as “the problem of legitimacy: whether the judicial branch is crossing the line into the proper area of the executive, thereby infringing… the separation of powers”.21 The learned author of Judicial Review: A New Zealand Perspective notes that the answer is dictated largely by the “political” appreciation of the Court, the political climate of society and the times, and the limits within which the Court is satisfied that public confidence in the judicial system is not endangered.
18 Graham Taylor (ed) Judicial Review: A New Zealand Perspective (3rd ed, Lexis Nexis, Wellington, 2014) at [3.07].
19 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 [Ngāti Whātua (SC)].
20 Hamilton City Council v Waikato Electricity Authority [1994] 1 NZLR 741 (HC) at 757 per Hammond J.
21 At 757.
[72] In short, the Crown says that the orders sought by the applicants necessarily fail because of the principle of comity; any action by the Court would go too far and impugn the legislation making process, which is outside of its role. The applicants say this is not the case.
The principle of comity in the Treaty settlement process
[73] In a recent decision of this Court, Griggs v Attorney-General, Cooke J addressed the tension between this principle and applications for review arising in the context of Treaty settlements:22
It is not uncommon for the Court to be approached in the context of Treaty settlements, with applications being made by parties seeking that the settlement be stopped. When this has arisen it has been recognised that there is a difficult underlying issue. The Treaty settlement process can be considered, at least in part, to be a political process. Ultimately Treaty settlements become binding through an act of Parliament. There has accordingly been a concern, reflected in a number of decisions, that the Court should not be drawn into ruling upon, or making orders in relation to, matters that are to be placed before Parliament to decide. One way of expressing the concern is that it engages a “comity” principle — that is that the Court should respect that there are certain matters that are for Parliament, and not for the Court.
[74] In the past, decisions of the Court tended to take a more conservative position as to its role in the Treaty settlement process; considering that Treaty settlements were part of the political process that lay beyond the reach of the Court.23 However, this position has shifted. In recent years, there has been seen scope for the Court to engage in judicial review to some extent where there has been a breach of principle of public law.24
[75] The leading decision on the matter is the Supreme Court in Ngāti Whātua.25 In that case, the Ngāti Whātua Ōrākei Trust sought to challenge actions taken by the Crown to progress a Treaty settlement, including introducing legislation, that would affect or undermine the legal rights of Ngāti Whātua Ōrākei. In essence, Ngāti Whātua
22 Griggs v Attorney-General [2021] NZHC 2913 at [14] (footnote omitted).
23 See Fenwick v Trustees of Nga Kaihautu o Te Arawa Executive Council HC Rotorua CIV-2004- 463-847, 13 April 2006; and Te Runanga O Ngati Awa v Attorney-General HC Wellington CIV- 2006-485-1025, 17 July 2008.
24 See McGechan on Procedure (online ed, Thomson Reuters) at [JRIntro.05(6)].
25 Ngāti Whātua (SC), above n 19.
Ōrākei was informed that settlement legislation was to transfer properties to other claimant groups (Ngāti Pāoa and Marutūāhu Iwi Collective) that Ngāti Whātua Ōrākei had an overlapping interest in (referred to as the “right to first refusal land” and “1840 transfer land”). Significant progress had been made in relation to the drafting of legislation to implement both deeds,26 however the ratification process had not yet begun for either. Both the High Court and the Court of Appeal struck out Ngāti Whātua Ōrākei’s claims on the basis that the principle of non-interference with parliamentary proceedings was engaged. This was appealed to the Supreme Court.
[76] The majority, in a decision written by Ellen France J, first endorsed the two key principles articulated by the Court of Appeal in Te Runanga o Wharekauri Rekohu Inc v Attorney-General (Sealords), namely that:27
(a)The Court will not make an order to prevent the introduction of a Bill to the House of Representatives; and
(b)The Court should not try to “dictate by declaration or a willingness to award damages or any other form of relief, what should be placed before Parliament”.
[77] The majority canvassed four decisions in which the principle had been discussed:
(a)Milroy v Attorney-General:28 The Court of Appeal held that advice provided in preparation of settlement legislation concerning settlement with Ngāti Awa (removing forest land from Tūhoe) was not amenable to review, as it was the legislation and executive acts that impacted Tūhoe rights rather than the advice which had no legal effect.29 The Court concluded that “the formulation of government policy
26 One deed had been signed, the other was in the process of being signed.
27 Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA), cited by
Ngāti Whātua (SC), above n 19, at [36].
28 Milroy v Attorney-General [2005] NZAR 562 (CA).
29 At [14]. It was conceded by the applicants that the advice did not affect the rights of any person or have the potential to do so.
preparatory to the introduction of legislation is not to be fettered by judicial review”.30
(b)NZ Māori Council v Attorney-General:31 The claimants challenged a deed of settlement involving the transfer of forest land on the basis that the Crown had breached a number of statutory duties, pre-statute guarantees and fiduciary duties. The Court of Appeal noted that the deed of settlement was conditional on the passage of legislation (the only unconditional provision of the deed being that the Crown would introduce the settlement Bill).32 The decision as to whether the settlement deed should become unconditional was one for Parliament.33 As no action of the Crown, other than the introduction of legislation, could be the subject of a declaration, any issues arising from the deed of settlement were not justiciable.
(c)Port Nicholson Block Settlement Trust v Attorney-General:34 The High Court found that it could make declarations of inconsistency as to deeds of settlement reached with two claimant groups (although the claim was ultimately not made out on its merits). Williams J noted that the relief sought did not attempt to intervene in the legislative process; leaving it to the executive to decide what, if anything, it should do with declarations, if made.35 His Honour also noted that there were rights at issue that are, or may be justiciable, being a “satisfactory legal yardstick that a court [could] utilise in resolving the controversy”.36 Williams J further observed that the Court should not simply nor blindly defer to the boundary between the court, legislature and executive’s role:37
Provided they are careful not to cross the boundary into the domain of Parliament or the executive’s role in advancing legislation, it would be wrong in principle and dangerous in
30 At [11] and [14].
31 NZ Māori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318.
32 At [30].
33 At [58].
34 Port Nicholson Block Settlement Trust v Attorney-General [2012] NZHC 3181.
35 At [61].
36 At [62].
37 At [63].
practice for the courts to leave the Crown to “acquit itself as best it may” as the “sole arbiter of its own justice”, where the controversy raises justiciable issues of statutory or deed interpretation or indeed of customary law if properly pleaded.
…
(d)Te Ohu Kai Moana Trustee Ltd v Attorney-General:38 the High Court granted a temporary stay of proceedings challenging the Kermadec Ocean Sanctuary Bill 2016 and seeking declarations of the claimants’ existing rights, such as fishing quota arising out of the Treaty of Waitangi Fisheries settlement. Simon France J noted that while the proceedings did not solely challenge the Kermadec Bill, it was now “working its way through the procedures of the House” and the long- standing and important comity principle required some respect.39
[78] Following this summary, the majority noted that “there remain questions about the exact scope, qualification and basis of the principle of non-interference in a parliamentary proceedings”.40 However, the majority noted:41
It is, nonetheless, appropriate to sound a note of caution at the extent to which the principle of non-interference in parliamentary proceedings has been held to apply to decisions somewhat distant from, for example, the decision of a minister to introduce a Bill to the House or from debate in the House. It would be overbroad to suggest that the fact a decision may, potentially, be the subject of legislation would always suffice to take the advice leading up to that decision out of the reach of supervision by the courts. That would be to ignore the function of the courts to make declarations as to rights.
[79] The majority also indicated that given the principle of non-interference with parliamentary proceedings was “the corollary” of the “implied right to freedom of expression in relation to public and political affairs [that] necessarily exists in a system of representative government”, as expressed in Sealords, the timing of parliamentary matters may be of direct relevance to the application of the principle.42
[80] In that case, the Supreme Court found that it was possible to identify in the present claim “public law decisions which could be the subject of challenge… without
38 Te Ohu Kai Moana Trustee Ltd v Attorney-General [2016] NZHC 1798.
39 At [26].
40 Ngāti Whātua (SC), above n 19, at [46].
41 At [46].
42 At [47].
interference with parliamentary proceedings”.43 A number of the declarations sought regarding the various rights claimed by Ngāti Whātua Ōrākei (such as having ahi ka, mana whenua and the right to first refusal over the land) were broader declarations that involved “live issues as to the nature and scope of the rights claimed” that were not directed solely at the decision to settle legislation.44
[81] However, the majority had concerns regarding the final two declarations sought by Ngāti Whātua Ōrākei, being declarations that the decisions communicated by the Minister of his intention to enter into Deeds of Settlement with the other claimant groups had been developed and made inconsistently with:
(a)the Crown’s obligations to make those decisions in accordance with tikanga; and
(b)the Treaty of Waitangi and its principles and Ngāti Whātua Ōrākei’s rights as affirmed by the United Nations Declaration on the Rights of Indigenous Peoples.
[82] The Court noted that those declarations were “problematic in terms of the principle of parliamentary non-interference”:45
[66] Both paragraphs are framed as challenges to process which may be broader. But the processes are described as relating only to the Ngāti Paoa and Murutūāhu decisions, as specifically defined. In context, the relief sought can only be characterised as a challenge to the decision which has been made to legislate to transfer the relevant properties albeit the illegality is said to arise because of some prior lack of process. …
[83]The Court struck out those two aspects of the claim.
[84] As academics have observed, Ngāti Whātua signalled a change in trajectory as to how the Courts deal with challenges to Treaty settlements and was indicative of an
43 At [48].
44 At [48] and [51].
45 At [65].
“increasing willingness to restrict and read down doctrine that limits judicial oversight of the executive”.46
[85] I refer to three decisions of this Court since Ngāti Whātua that I consider informative given their Treaty context:
(a)Ngāti Mutunga o Wharekauri Iwi Trust v Minister for Treaty of Waitangi Negotiations: In considering an application for an interim declaration preventing the Crown from taking further steps to implement a deed of settlement purporting to return certain land to Moriori in which Ngāti Mutunga had an overlapping interest, the High Court considered that “claims or mana whenua over lands” are recognised legal rights, and:47
… Parties are entitled to come to the Court when there are disputes about legal rights. That includes the ability to bring judicial review proceedings when the Crown is exercising reviewable powers in a manner that is unlawful.
In that case, the relevant deed of settlement was yet to be initialled by Moriori. Nonetheless, Cooke J noted that he had been advised that the ‘usual practice’, namely that a settlement Bill was drafted alongside the Deed of Settlement (making the two “inextricably interlinked”) had apparently been followed.48 He observed that it may well be that the application would require the Court to make orders or declarations that intruded into Parliamentary proceedings.49 However, he concluded that what was necessary was “a close consideration of the decision that is challenged to ascertain whether it involves a public law error of the kind that is properly corrected by the Court on judicial review.”50 The Court found that the claim had very little prospect of success and that
46 Claire Charters “Wakatū in Peripheral Vision: Māori Rights-Based Judicial Review of the Executive and the Courts’ Approach to the United Nations Declaration on the Rights of Indigenous Peoples” [2019] NZ L Rev 85 at 93. See also McGechan on Procedure (online ed, Thomson Reuters) at [JRIntro.05(6)].
47 Ngāti Mutunga o Wharekauri Iwi Trust v Minister for Treaty of Waitangi Negotiations [2019] NZHC 1942 at [20].
48 At [22]–[23].
49 At [23].
50 At [27].
Ngāti Mutunga had applied at a late stage and accordingly dismissed the application.
(b)Te Ara Rangatū O Te Iwi O Ngāti Te Ata Waiohu Inc v Attorney- General: The High Court considered that it could judicially review a claim that the Crown, in the way it conducted Treaty negotiations in the 1990s, had created a legitimate expectation that the negotiations would be concluded promptly (at the time of bringing the proceedings, no settlement had been reached). The Court considered that “entertaining such a claim [was] not transgressing into high policy or political content. Rather, a claim of legitimate expectation is founded on notions of procedural propriety and natural justice”.51 The claim, however, failed on its merits. In those circumstances, the Court considered it did not need to reach any conclusions about the complex issues arising about legitimate expectations in the context of Treaty settlement negotiations.
(c)Griggs v Attorney-General: The High Court entertained an interim injunction application seeking to prevent the signing of a deed of settlement (which was to be introduced as a settlement Bill to Parliament approximately three weeks’ later).52 This was in the context of private law claims rather than a judicial review context. However, the principle of comity was still seen as relevant. Cooke J noted:53
… It is the constitutional function of the Court to rule upon questions of legal rights when they are in dispute. It is not the function of the Court to intrude into the laws that are considered for enactment by Parliament. Because a deed of settlement is normally the precursor to anticipated Parliamentary enactment there is a danger that the Court is being invited to consider the merits of matters that are for Parliament, and not the Courts, to address. But in the same way it would be constitutionally inappropriate for the Court not to adjudicate on a matter that is properly within its jurisdiction to determine, even if that includes a question associated with the entry of a Deed of Settlement. If the Court
51 Te Ara Rangatū O Te Iwi O Ngāti Te Ata Waiohu Inc v Attorney-General [2020] NZHC 1882.
52 Griggs v Attorney-General, above n 22.
53 At [17].
did not do so then the Court fails in its essential function of upholding the rule of law.
In that case, it was argued that the Trustees of the Settlement Trust were acting outside their powers. Cooke J considered that the Court’s jurisdiction under the Trusts Act 2019 was engaged and that “the Court must exercise its constitutional function of determining the legality of the proposed actions of the Trustees in accordance with … that Act”.54 Cooke J helpfully made additional comments about declaratory relief:
…before the Court can properly adjudicate matters…there must be an issue raised about legal rights properly to be adjudicated upon by the Court. A complication arises when a party seeks declaratory relief, as there is no requirement for a legal dispute or lis before declaratory relief can be granted. Here the Court’s discretion in relation to declaratory relief becomes important. …That is, if the application for declaratory relief properly concerns a matter of legal rights to be determined by the Court then declaratory relief may be appropriate. But declaratory relief should not be granted if the Court is being drawn into a matter that involves the merits of matters that are ultimately for Parliament to decide.
[86] I note that, very recently, in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd, the Supreme Court has further commented on the question of whether a proceeding was, in substance, an attempt to interfere inappropriately in Parliamentary proceedings.55 The Court noted that relevant ratifying settlement legislation had been introduced into Parliament and, if enacted, would put an end to the proceedings. It then observed that it would address two issues for the purposes of clarification only.
[87] Williams J, for the majority, observed that the Court disagreed that the application itself demonstrated the proceeding was, in substance, an attempt to interfere inappropriately in Parliamentary proceedings.56 The majority relied on the discussion of then Chief Justice Elias in Ngāti Whātua in her dissenting judgment where she said:
[119] I do not think the circumstance that the plaintiff in Fitzgerald v Muldoon sought to uphold statutory obligations is reason not to apply the same
54 At [18].
55 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [45]–[46].
56 Wairarapa Moana had argued this in its application opposing leave to appeal directly to the Supreme Court.
approach. Until Parliament changes the law, the courts must be open to citizens who seek to have their existing legal interests and rights determined. The rights recognised in s 27 of the New Zealand Bill of Rights Act 1990 to natural justice and to bring proceedings against the Crown on equal terms would not otherwise be fulfilled. Parliamentary freedom of debate and in its proceedings is unaffected by the judicial responsibility to hear and determine rights and interests protected by law.
[88] The majority’s second comment was to observe that the appeals under consideration did not put the settlement Bill in issue in any way:57
Rather, they raise orthodox claims of statutory or other right: the law to have extant applications for resumption determined according to law, and the related right to test the implications of tikanga considerations in that context. They therefore involve no conflict with the terms of s 11 of the Parliamentary Privilege Act 2014, nor any breach of the common law interference principle of non-interference.
[89] The majority went on to rely on an excerpt from the Court of Appeal’s decision in Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General where the Court of Appeal stated that: 58
… the reasoning of both the majority and Elias CJ in Ngāti Whātua is consistent with the proposition that the courts may make declarations of existing right, interest or entitlement whether or not there is a bill before the House which may affect them in some way. Such relief is not “in relation to parliamentary proceedings”, in the sense provided for by ... the Parliamentary Privilege Act. It does not amount to an interference by the courts in Parliament’s “proper sphere of influence and privileges” because such declarations would be about existing rights, interests or entitlements, and not what Parliament may be proposing to do in relation to them. The terms of s 4(1)(b) of the Parliamentary Privilege Act are apposite here. Comity is a principle of “mutual respect and restraint” between the legislative and judicial branches as to their respective constitutional functions. It is the function of courts to adjudicate on rights and entitlements.
[90] William Young J also commented on this issue in his judgment, although for a different purpose. His Honour’s view was that he thought it plain that:59
In ordinary language at least, the majority reasons does “put the claims settlement Bill in issue”. However, to the extent that this is simply by reason of this Court dealing with “the right to have the extant applications for resumption determined accordingly to law” it is unexceptionable.
57 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd, above n 55, at [47].
58 At [47], quoting Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General [2020] NZCA 2, [2020] 3 NZLR 1 at [33] (footnotes omitted).
59 At [170].
[91] His Honour concluded that given the legislative process underway, the Court should be cautious about expressing opinions on issues that were not in play in the litigation in the High Court.
Does the principle of comity preclude the applicants’ claims?
[92] The substantive relief sought by the applicants in relation to the two Crown decisions (the Mandate and Ratification Decisions) are:60
(a)Declarations that the Mandating and Ratification Decision were unlawful…;
(b)A declaration that the Ratification Decision was in breach of the Crown’s policy for recognising the outcomes of ratification processes;
(c)A declaration that there was no rational or reasonable basis on which the Crown could have concluded that the motions put forward in those processes were ratified by Ngāti Paoa; and
(d)An order setting aside the decision to enter into the deed of settlement, and the deed itself, as tainted by the public law errors in relation to the Mandating and Ratification decisions.
[93] The applicants say that their claim is not prevented by the principle of comity, as:
(a)they are not seeking orders prohibiting the introduction of legislation giving effect to the proposed Deed of Settlement;
(b)the challenge is to the conduct of the Crown and processes followed in the period leading up to the signing of the Deed of Settlement, rather than the decision to legislate;
(c)the causes of action pleaded raise discrete public law rights and interests—in essence, the applicants focus on procedural rights rather than any substantive rights conferred by legislation or otherwise.
(d)any declarations made would ‘shine a light’ for Parliament, in that it would assist Parliament in making an informed decision as to whether
60 As I am proceeding with the substantive judgment, I do not address the interim declarations sought.
(e)they wish to proceed with the passage of the legislation. However, in the applicants’ words, “the residual freedom of the Crown to proceed with the settlement, or Parliament to pass settlement legislation, would not be infringed”.
[94] The applicant also relies on Ririnui v Landcorp Farming Ltd to support the proposition that it is open to the Court to make an order setting aside a contract as a remedy for that error.61 In that case, the Supreme Court held that, where a decision to enter a contract is influenced by a public law error, the Court can make an order setting aside the contract as a remedy for that error, even in circumstances where the unlawfulness did not affect the capacity of the parties to enter the contract. The applicants submit that while the target of the order is a deed, not a contract, this is not a material difference.
[95] The Crown and the Iwi Trust contend that the applicants’ claims offend against the principle of comity and are non-justiciable. The Crown emphasise that the Deed of Settlement is more closely linked to the Parliamentary process than the decisions which were held to fall foul of comity concerns in Ngāti Whātua. It submits that as is conventional, the Deed of Settlement is conditional on legislation, and the Deed is ultimately a political compact.
[96] The Crown refer to the declarations sought relating to the Mandate and Ratification Decisions as “upstream” to the signing of the deed, through which the applicants are seeking to “implicat[e] public law rights capable of a form of free- standing declaration, essentially divorced from the Parliamentary process, so skirting comity issues”. However, the Crown contends that these declarations overlook the fundamental constitutional principle that a court cannot question the legitimacy of an Act of Parliament or the means by which its enactment was procured. The Crown say that the public law consequences of the declarations sought would be to taint any decision to introduce a settlement Bill based on the deed, and any Act if that Bill received Royal Assent. Thus, the declarations sought, if granted, would question the
61 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056.
legitimacy of the means by which a Settlement Act was procured, cast a legal shadow on Parliament, and contravene constitutional principles. The Crown submit:
Given the inextricable link between the impugned upstream decisions—the decision not to pause the settlement process, and the decision to recognise the outcomes of the ratification process—and the deed of settlement; and the link between the deed and the Bill which the deed anticipates will be introduced not the House [not before 13 December] granting the declarations is, in a practical sense, ‘impugning the procedure that led to legislation being enacted’.
[97] The Iwi Trust emphasises that declaratory relief should not be granted if the Court is being drawn into a matter that involves the merits of matters that are ultimately for Parliament to decide. The Iwi Trust submits that the applicants are relying on legal rights and interests that are affected by settlement legislation.
[98]I turn to consider how the law applies to the present case.
[99] I first note that the Supreme Court emphasised in its recent decision in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd the Courts’ ability to make declarations of existing right, interest or entitlement whether or not there is a bill before the House which may affect them in some way. As I read the decision, it confirms that the Court regarded such existing rights, interests or entitlements as being at issue in the case before it such that it could consider those matters despite there being a related bill before Parliament. However, the Court did not discuss other aspects of the Ngāti Whātua decision. For present purposes, I consider my focus properly remains on that decision.
[100] Upon reviewing the authorities, I consider that the case that shares the closest similarities to the present situation is Ngāti Whātua. The two disallowed declarations sought to challenge “processes described as relating to [settlement] decisions, as specifically defined”. The Court said that in this context:62
…the relief sought can only be characterised as a challenge to the decision which has been made to legislate to transfer the relevant properties albeit the illegality is said to arise because of some prior lack of process. …
62 Ngāti Whātua (SC), above n 19, at [60] (emphasis added).
[101] Similarly, here, the heart of the applicants’ claim is that there has been a prior lack of process by the Crown in continuing with the settlement process at various stages and ultimately expressing its intention to proceed with settlement legislation.
[102] As indicated, the Court should not shy away from its constitutional function, that is to adjudicate on questions of legal rights that are properly within its jurisdiction to determine, even if that includes a question associated with entry into a deed of settlement. I recognise that there has been a trend towards the greater scrutiny and review of Treaty settlement decisions, and I agree that this is the proper approach.
[103] However, it is less clear to me whether the legal rights in question in this case can properly be seen to be in the domain of the Court, where what is really being challenged is the process underlaying the introduction of legislation to Parliament. The claims, in my view, appear to be squarely covered by the dicta in Ngāti Whātua such that the claims are prevented from proceeding.
[104] I am also concerned that the settlement process with Ngāti Pāoa is far along. The Executive expressed its intention to introduce the Bill to Parliament. The Executive has confirmed that it is satisfied with the settlement process that has been followed and a Bill is to be introduced to Parliament on a date on or after 13 December 2022. It seems to me that, together with my conclusion on the application of Ngāti Whātua to the present case, the close proximity in time makes the risk of interference with parliamentary proceedings acute.
[105] For these reasons, I conclude that the applicants’ claims in the Crown process proceedings are a breach of the principle against non-interference with Parliamentary proceedings.
[106] In case I am wrong, I have considered the substantive grounds of review pleaded by the applicants in the Crown process proceedings. I consider that, if the decisions are justiciable, the applicants’ claims fail on their merits.
The Mandate Decision
[107]I turn then to the Mandate Decision.
[108] The applicants first submit that the Crown misinterpreted what the Red Book says about the scope of responsibilities of the mandated representative for Ngāti Pāoa and acted inconsistently with those parts of the Red Book governing mandate maintenance, as well as its own statements about the need to revisit the mandate held by the Trust Board. Second, the applicants submit that the Mandate Decision was irrational.
Misinterpretation of the Red Book and breach of legitimate expectation
[109] The Red Book is described as a guide to Treaty of Waitangi claims and negotiations with the Crown, authored by the Office of Treaty Settlements.63 The applicants contend that in the Red Book, the Crown has published a detailed policy governing the conduct of Treaty settlement negotiations that includes discussion of the mandating process. Mr Roebeck (the principal officer of the Trust Board) has given evidence that he recalls the lead Crown negotiator giving him a copy of the Red Book in 2017 and explaining that it would provide the basis on which the Crown would engage with Ngāti Pāoa.
[110] In essence, the applicants submit, the Red Book has said one thing (that the mandated representative conducts the ratification process and that such a process must meet certain minimum requirements) while the Crown says another (that there are no rules). They say that there was a “serious dispute” about whether the Trust Board maintained a mandate by late 2019 or early 2020, given that both the Iwi Trust and Mr Wilson had commenced processes to challenge the Trust Board directly for the mandate. Therefore, according to the Red Book, the Crown should then have worked with all of Ngāti Pāoa to resolve who held the mandate for the iwi.
[111] The applicants submit that initially, the Crown seemed to follow such a process, as seen by its letter of 29 January 2020 where it asked the Iwi Trust and Mr Wilson to stop their ratification processes for the purpose, the applicants say, of resolving the mandate issue. The applicants rely on this letter as creating a procedural legitimate expectation independent of the Red Book that the mandate issue needed to
63 For the latest version of the Red Book, see: Office of Treaty Settlements Ka Tika ā Muri, Kā Tika ā Mua: Healing the past, building a future (December 2021) [Red Book].
be resolved before any ratification process could continue. They also say that their decision to refrain from taking any steps to carry out their own ratification process at this time was made in reliance on that letter.
[112] The applicants submit that the Crown then breached the expectation created by the Red Book and the 29 January 2020 letter in its further letter of 19 February 2020 where it said that the ratification processes could continue despite the dispute about the Trust Board’s mandate. They also say that the Crown has provided no reasoned justification for its change of position or departure from the Red Book, and that despite the Crown’s letter to the Kauahi hapū of 28 February 2020 which confirmed that the mandate position still required re-evaluation, the Crown allowed the ratification processes to proceed.
[113] Critically to their case, the applicants contend that the Crown has misinterpreted the role of a mandated representative in the Red Book in considering that the question of mandate is only relevant to the authority to conduct negotiations and does not extend to ratification processes.
[114] The Crown and the Iwi Trust submit that no procedural legitimate expectation arose in the circumstances, and nor was any decision irrational. Both the Crown and the Iwi Trust submit that the Red Book is no more than a general guide for claimants and does not prescribe the detail of any particular negotiations. The Crown says the applicants were aware from negotiations, and from the Red Book itself, that the process and engagement of the negotiations with Ngāti Pāoa would prevail over the general statements of the Red Book and that in any event the Crown statements in the course of negotiations, when seen in full and in context, do not support the expectation claimed.
[115] The Crown also disputes that the Mandate Decision can be regarded as an exercise of “public power” or is therefore reviewable. It says it recognised there were deficiencies in the mandate proposals but intended to review the outcome of the voting on the mandate resolutions and provide further advice to Ministers on what was
required before any decision on mandate recognition would be made.64 Even if it can be regarded as an exercise of public power, the Crown says that the Mandate Decision was consistent with the Red Book and its earlier statements, and entirely appropriate.
[116] The doctrine of legitimate expectation ensures that public bodies act fairly and reasonably.65 In order for a representation to found a legitimate expectation, it must be clear, unambiguous and unqualified. The party must have, reasonably and legitimately, acted in reliance on the promise or undertaking.66 In this case, a close examination of the Red Book and the letters of 29 January and 19 February 2020 in the context of the broader context of the discussions between the parties is required.
[117] The Red Book describes itself as a “practical guide to the negotiation and settlement of historical grievances under the Treaty of Waitangi”. Relevant to the present proceedings, the Red Book has a substantial section described as the “Negotiations Process”. In broad terms, the claimant group is to confer a mandate on claimant group representatives and that mandate must be approved by the Crown. The mandated representatives (which may include mandated negotiators) then negotiate the settlement with the Crown. The settlement must be ratified by the claimant group before the Crown will accept it. Ratification may be undertaken by the mandated representatives. A PSGE must be established to receive settlement assets. It must be approved by the claimant group and the Crown.
[118] The applicants referred me to several parts of the Red Book where it refers to the role of the mandated representatives. Two examples are that:
(a)the Deed of Mandate “should in all cases” state that the mandated representatives must present a draft deed of settlement to the claimant group for ratification;67 and
64 I am unaware of any decision about the Ngāti Pāoa mandate for future settlement negotiations having been made at the time of writing this judgment.
65 New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [141], as cited by Whanarua Beachfront Property Owners Group Inc v Opotiki District Council [2022] NZHC 2589 [Whanarua] at [49].
66 Te Ara Rangatu o Te Iwi o Ngāti Te Ata Waiohua Inc v Attorney-General [2020] NZHC 1882 at [695]–[711] and [717]; Whanarua, above n 65, at [49]–[53]; Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [125]–[127]; and Green v Racing Integrity Unit Ltd [2014] NZCA 133 at [13].
67 Red Book, above n 63, at 44.
(b)the mandated representative is referred to during the discussion of the ratification process.68
[119] The applicants cite these and other references to support their position that as the Trust Board was the mandated representative of Ngāti Pāoa its proper role included completing the ratification process of the Deed of Settlement and that given the dispute over mandate, the Crown should have paused the ratification process because to do otherwise would be in breach of the Red Book.
[120] The applicants also refer to a number of cases which they say stand for the proposition that policy exists to be followed and that while decision-makers can depart from their public policies where there is a good reason for doing so, here there was never any considered decision to depart from the Red Book.69
[121] I accept that the Red Book is an important policy document in the context of settlement of Treaty claims. The Crown would not produce such a document if it did not intend for iwi and others to refer to it. But I think it is properly seen as a general statement of how Treaty settlement negotiations are approached rather than having the prescriptive effect contended for by the applicants. I accept the Crown’s submission that:
Although certain milestones and instruments are common to all negotiation processes, each negotiation is different. The Crown seeks to maintain flexibility to negotiate a settlement that reflects the history, concerns and aspirations of the particular group and context. Because of the need to tailor the negotiations to the circumstances and to maintain a flexible approach to Treaty settlements the Red Book is a general “guide” only. It sets out general principles and process milestones that the Crown seeks to apply to all settlements.
[122] The Crown’s position that the Red Book is a general guide is supported by the explicit disclaimer contained in the Red Book, that states:70
…While all statements are believed to be correct, no liability can be accepted for any correct statement, omission or changes to the matters or polices
68 At 65.
69 New Zealand Assoc for Migrants and Investments Inc v Attorney-General, above n 65; Comptroller of Customs v Terminals (NZ) Ltd, above n 66; and Te Pou Matakana Ltd v Attorney- General [2021] NZHC 2942.
70 Emphasis added.
referred to. The guide provides general information only and readers should not act or rely on information in this guide without first discussing the detail with OTS [Office of Treaty Settlements].
[123] I consider this disclaimer is particularly important in the context of the construction of a legitimate expectation. As addressed above, the creation of a legitimate expectation requires an unqualified representation. Given the inclusion of a disclaimer in the Red Book, I find it difficult to consider that the Red Book simply on its face can give rise to a legitimate expectation.
[124] The applicants referred me to the Waitangi Tribunal’s discussion of the Red Book in the Hauraki Settlement Overlapping Claims Inquiry Report in support of their contention that the Crown’s actions may be measured against the policy set out in the Red Book.71 There, the Crown took the same approach as it has in this case, namely that the Red Book offers general guidance only, giving the Crown the flexibility it needs to respond to the specific circumstances of each settlement negotiation.72 The Tribunal criticised that position, stating that ‘fulsome’ and ‘comprehensive’ guidance is what claimants are entitled to expect.73 On my reading of the Report, the Tribunal was criticising the absence in the Red Book of up-to-date policy in relation to overlapping interests, the subject of its inquiry, rather than necessarily making a general statement about the status of the Red Book. I find more persuasive the approach taken in Patel v Chief Executive of the Department of Labour, emphasising that policy documents are not to be construed with the strictness that might apply to interpreting a statute, but with an acknowledgment they are working documents that must be construed “sensibly according to the purpose of the policy and the natural meaning of the language in the context in which it is employed”.74 The Courts have
71 Waitangi Tribunal The Hauraki Settlement Overlapping Claims Inquiry Report (Wai 2840, 2020).
72 This was also recorded as the Crown’s position in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 at [502].
73 Waitangi Tribunal, above n 71, at [3.4]. The Tribunal decision related to overlapping settlement redress and I note that the Red Book has been updated in 2021 to include a new section on overlapping interests. See New Zealand Government “Overlapping interests” < Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271.
recognised the public interest in flexibility and in the Executive being able to respond to changing circumstances.75
[125] To my mind, the Treaty settlement context and the content of the Red Book present a quite particular combination of setting and content. Most of the authorities cited by the applicants in support of their argument that the policy must be strictly complied with deal with private rights in various contexts (for example compensation for those wrongfully imprisoned,76 the effect of changes in immigration policy77 and the imposition of excise duties78) often including an analysis of more prescriptive material. In my view, these are very different settings from the settlement of historic Treaty claims by Māori.
[218] The Crown’s evidence from the lead Crown negotiator is that if the Farm remained in the control of the Trust Board, the Trust Board would support Ngāti Pāoa’s settlement. The evidence is that the Trust Board was not willing to test their view with the people of Ngāti Pāoa through the open forum of a ratification process. The Crown’s view is that the Trust Board has a strong desire to retain control of the Farm. Mr Roebeck disputes that on the part of the Trust Board, saying that while the Trust Board would prefer that the Farm remain in its control, if the transfer of the Farm to the Iwi Trust was tested in a legitimate process, the Trust Board would accept the outcome.
93 New Zealand Māori Council v Attorney-General, above n 31.
[219] The Iwi Trust also submits that the transfer of the Farm to the Iwi Trust has been discussed with the iwi for a number of years, including with the trustees of the Trust Board on a number of occasions. It cannot be regarded as a last-minute aspect of settlement. The Iwi Trust records that the Farm will transfer as Māori freehold land and so will be subject to protections afforded to the beneficial owners under Te Ture Whenua Māori Act 1993.
[220] It seems to me that the issues raised by the applicants reflect the other concerns the applicants have identified with the Ratification Decision more generally. I accept that the critical fact is the identification of the class of beneficiaries. Given that a register exists specifically for the purpose of recording the beneficiaries of the Farm, the case is stronger that these beneficiaries should have been specifically consulted about the resolution proposing transfer of the Farm to the Iwi Trust. However, the beneficiaries are the Ngāti Pāoa people, who had reasonable opportunity to engage in the ratification process, and of the Ngāti Paoa members who did vote, there was substantial support amongst voters for the proposal. The Crown’s approach was not unlawful, irrational or unreasonable in the circumstances.
Decision was irrational as it has created further grievances
[221] Finally, the applicants submit that the Crown’s approach to the mandate and ratification decisions has had the effect of creating new grievances wholly inconsistent with decision-making in the context of a Treaty settlement. They say that the approach of the Crown has exploited divisions in the iwi, perhaps because it was frustrated at the length of time the process had taken.
[222] The ongoing dispute between the Trust Board and the Iwi Trust is certainly not ideal for Ngāti Pāoa. I accept that the ratification processes and resulting adversarial processes have exacerbated any divide. However, this must be seen against the backdrop of years of disagreement and failed attempts between the parties to reach resolution.
[223] In light of that background, the Crown’s decisions cannot be seen as being irrational. They have been appropriate in the unusual circumstances of the Ngāti Pāoa settlement negotiations. While having two ratification processes and simultaneous
mandate resolutions was not typical or ideal, I conclude that in all the circumstances it is evident that that the people of Ngāti Pāoa support the Deed of Settlement.
Refusal to pause the signing of the Settlement Deed
[224] The Trust Board also challenges the Crown’s decision to proceed to sign the Deed of Settlement, but only on the basis it was tainted by the errors pleaded in relation to the Mandate and Ratification Decisions.
[225] My conclusions above on the mandate and ratification matters mean that it cannot be said the decisions were tainted in the way claimed by the applicants. Accordingly, this challenge fails.
Judicial review of Waitangi Tribunal urgency decision
[226] The 423 proceeding is an application for judicial review of the decision by the Waitangi Tribunal not to grant an urgent hearing for Wai 2982.94
[227] The Trust Board pleads two causes of action in this proceeding, challenging the Tribunal’s decision on the grounds that it:
(a)Was irrational; and
(b)Involved errors of law about the status of the Farm and whether the beneficial owners of the Farm had been consulted and consented to the inclusion of the Farm in the settlement.
[228] The Trust Board seeks relief in the form of a declaration that the Tribunal’s decision was irrational and/or involved errors of law, an order setting aside the decision and a direction that the Tribunal reconsider its decision.
94 Waitangi Tribunal Urgency Decision, above n 3.
Waitangi Tribunal proceedings
[229] On 7 July 2020, the Trust Board filed a statement of claim and an application for an urgent hearing before the Tribunal.95 This followed the ratification of the Ngāti Pāoa Deed of Settlement, which occurred in March 2020, and the Trust Board’s unsuccessful application for interim orders to prevent the signing of the Deed. The Trust Board alleged breaches by the Crown of its duties under the Treaty. It pleaded three causes of action:
(a)Failure to engage with the mandated Ngāti Pāoa entity in settlement discussions in good faith;
(b)Failure to adequately uphold and recognise the mandate held by the mandated representative body; and
(c)Failure to adequately consult with and act in good faith with the mandated representative body in relation to the re-mandating process and concurrent ratification processes.
[230] Underpinning the Trust Board’s causes of action were its concerns about the Crown’s engagement with the Iwi Trust in relation to the Ngāti Pāoa Deed of Settlement and the Deed’s ratification, and its opposition to the involvement of the Iwi Trust and Mr Wilson in these matters. Amongst other things, the Trust Board contended there was not a fair process in relation to ratification of the Deed of Settlement and that there was a failure to recognise Ngāti Pāoa tikanga and the rangatiratanga of Ngāti Pāoa individuals and hapū.
[231] The Trust Board sought an urgent hearing into the Crown’s settlement policy and actions in relation to Ngāti Pāoa on grounds including significant irreversible prejudice as a result of current or pending Crown actions or policies, that no alternative remedies are available, that the claim challenged an important current or pending Crown action or policy, and imminency of settlement.
95 Wai 2982, registered on 9 July 2020.
[232] The Tribunal delivered its decision on the application for urgency on 20 January 2021.
[233] The Tribunal set out the submissions made by the Trust Board, the Crown and the Iwi Trust, regarding the application.96 It then referred to the Tribunal’s Guide to Practice and Procedure, setting out what the Guide says about the factors the Tribunal may consider in determining an application for an urgent hearing.97
[234] The Tribunal recorded that urgency is not lightly granted, given that it impedes the orderly flow of work and pushes back further those waiting for a hearing.98 It explained that the key reason it declined the Trust Board’s application for urgency is that it did not consider the claim had a reasonable chance of being upheld by the Tribunal.99 The Tribunal characterised the dispute as largely being between the Trust Board and Iwi Trust, noting that much more important than the representative bodies are the Māori who they say they represent.100 It said that the Trust Board ceased to hold the mandate, and that “Ngāti Pāoa has moved on and can be seen to firmly support the Iwi Trust”.101 The Tribunal also concluded that “[n]umbers matter and in this context the Trust Board has not been able to disclose any substantial support. The support of the Iwi Trust is overwhelming”.102 It also found that Ngāti Pāoa had shown they wish the Iwi Trust to administer the Farm and that the differences relating to whakapapa were not of any magnitude or created any degree of prejudice.103
[235] The Tribunal concluded that the evidence before it created little or no possibility that the Tribunal would find that the Crown was acting in breach of the principles of the Treaty in the sense that the Trust Board proposed, and dismissed the application for urgency.104
96 Waitangi Tribunal Urgency Decision, above n 3, at [31]–[95].
97 At [96].
98 At [97].
99 At [98].
100 At [99].
101 At [100].
102 At [101].
103 At [104] and [106].
104 At [107]. At [108] the Tribunal noted that its finding was only for the purposes of this interlocutory application and not relevant to the hearing of the substantive claim.
Irrationality
[236] The Trust Board submit that the Tribunal’s decision-making under s 7(1A) of the Treaty of Waitangi Act 1975 and the Guide was inherently irrational because it did not respond to the case as pleaded and involved material mistakes about the mandate of the Trust Board and the outcome of the ratification processes.
[237] The Trust Board submit that the Tribunal should have taken a conventional approach in its decision, of reviewing the pleadings, the evidence, previous Tribunal decisions and then setting out the reasons for his conclusions. Instead, it submits that the Tribunal made “sweeping” characterisations of the Trust Board’s case which were inaccurate, did not engage with the facts and the pleadings, and did not focus on the pleading that the conduct of the Crown constituted a breach of the Crown’s obligations to a significant portion of Ngāti Pāoa. The Trust Board contrasts the Tribunal’s approach in this case with the comprehensive decision on the urgency application in what became the Whakatōhea Mandate Inquiry.105
[238] In reliance on Haronga v Waitangi Tribunal, the Trust Board submitted that the Tribunal cannot exercise its statutory powers to defer consideration of matters in such a way that prevents claims from being heard. In that case, the Court observed:106
It is the principal function of the Waitangi Tribunal to inquire into and make recommendations on claims submitted to it under s 6 of the Treaty of Waitangi Act. With limited exceptions, the Tribunal is obliged to inquire into every claim …
…
It follows from this statutory scheme that the power [to refuse to inquire] under s 7(1A) cannot be used, consistently with its purpose, in order to defeat a claim, in the sense of precluding it from being the subject of an inquiry or precluding completion of that inquiry.
[239] It appears to be the Trust Board’s position that, in declining the urgency application, the Tribunal was deferring the matters in a way that prevented its claim being heard. It noted that Ngāti Pāoa would not get another chance to have its concerns dealt with as the Ngāti Pāoa Settlement Bill is to be introduced to Parliament shortly.
105 Waitangi Tribunal Decision on Applications for an urgent hearing (Wai 2662, 2017).
106 Haronga v Waitangi Tribunal [2011] NZSC 53, [2012] 2 NZLR 53 at [80] and [84].
The Trust Board submitted that, given the principles set out in Pora v Attorney- General, the Tribunal was required to interpret and apply its Guide to Practice and Procedure correctly at all times.107
[240] The Trust Board also refers to two inaccuracies that they say fall under the irrationality consideration.
[241] The first inaccuracy identified by the Trust Board is the Tribunal’s conclusion that Ngāti Pāoa “had moved on” and could be seen to “firmly support the Iwi Trust”. The Trust Board says there was no evidential foundation for these statements, and they are irrational. It says the Trust Board remains the mandated representative of Ngāti Pāoa and the Crown had not taken the steps prescribed in the Red Book to formally assess the Trust Board’s position. Further, even if Ngāti Pāoa had moved on and supported the Iwi Trust, the conduct of the Crown in abandoning the Red Book process and allowing ratification to proceed without formally resolving the issue of mandate was a breach of the principles of the Treaty and the Red Book.
[242] The second inaccuracy identified by the Trust Board is that the Tribunal’s conclusion that Ngāti Pāoa had voted to ratify the settlement process overlooked the Trust Board’s contentions about the inadequacy of the registers used in the two ratification processes that were run. Accordingly, the Trust Board says the Tribunal should have considered how the ratification processes were run and the registers used to run it. The Trust Board says that at the very least it is arguable that the outcomes did not represent the will of Ngāti Pāoa and the Tribunal was wrong to form the firm conclusions that it did.
Error of law
[243] The Trust Board submit that the Tribunal mischaracterised the Trust Board’s argument in relation to the Farm in that it wrongly cast the Farm as a settlement asset. It refers to the evidence of Mr Roebeck that the land in question was gifted to Ngāti Pāoa by the Crown before Treaty negotiations had even commenced. The Trust
107 Pora v Attorney-General, above n 76, at [108].
Board also contends the Tribunal was wrong to assume that iwi assets must be held by a designated PSGE and there are examples where this is not the case.
[244] The Trust Board also submits that the Tribunal wrongly said that the Trust Board requires the Farm to be held by it. Rather, the Trust Board’s concern is that all beneficiaries of the Waiheke Station Trust should have the opportunity to express their views on how the Farm should be held. The Trust Board says it holds the register of those beneficiaries, yet that register was not used in the ratification processes carried out by the Iwi Trust and Mr Wilson. The Trust Board confirms it would accept any proper decision of Ngāti Pāoa as to what entity should hold the Farm.
Discussion
[245] I deal first with the Trust Board’s general criticism of the Tribunal’s decision. The Crown and the Iwi Trust reject the Trust Board’s submissions, saying rather that the Trust Board disagrees with the Tribunal’s decision but this does not mean a reviewable error of law exists.
[246] The Tribunal’s urgency decision may not be cast as the Trust Board would like. I accept that in a perfect world the Tribunal would have set out in more detail its consideration of the pleadings and the evidence in order to demonstrate on the face of the decision its understanding of the factual matrix and the claims made by the Trust Board. However, this does not make the decision irrational.
[247]To my mind, there are several important aspects to the decision.
[248] First, the Tribunal recorded a background chronology and procedural steps taken (importantly, recording the affidavits filed by each party). I have reviewed the affidavits. The Trust Board’s concerns are squarely laid out by Mr Roebeck and Mrs Roebeck.
[249] Second, the Tribunal also specifically refers to “the evidence before the Tribunal” in one of its conclusory paragraphs, which can only be understood as demonstrating that it had considered that evidence.
[250] Third, the Tribunal set out in detail the parties’ submissions (which constituted two rounds of submissions).108 Notably, for the Trust Board, it clearly recorded the Trust Board’s position that, amongst other matters, it:
(a)claimed the Crown has breached the principles of the Treaty (at [33]), in particular in relation to the Crown’s failure to recognise the Trust Board’s Deed of Mandate (at [34]) with the result of causing serious damage to whānau relationships within Ngāti Pāoa, stripping away the authority of the Trust Board (at [70]) and usurping the authority and rangatiratanga held by the Trust Board on behalf of those it represents (at [71]);
(b)contended there is significant opposition to the ratification and mandate process from the Trust Board and others whose claims are included in the Ngāti Pāoa Deed of Mandate (at [37]); and
(c)was concerned about inconsistencies between the registration databases held by the Trust Board and the Iwi Trust in relation to whakapapa (at [68]).
[251] Fourth, the Tribunal expressly referred to the Guide and set out the relevant extract from it relating to the grant of urgency.
[252] I also accept the Crown’s submission that the Tribunal, as a specialist body, ought to be accorded an appropriate degree of latitude on review, including in determining applications for urgency.109 The Court of Appeal has said that it is not the function of the High Court on judicial review to determine the merits of the application but to assess its legality.110
[253] Considering these matters, I do not accept the Trust Board’s submission that the Tribunal’s decision does not engage with the facts and the pleadings and that its material facts are evidence that the matter before it may not have been properly
108 This included 34 paragraphs summarising the Trust Board’s submissions.
109 Tūrāhui v Waitangi Tribunal [2016] NZCA 387 at [22].
110 At [22]–[23], endorsing Tūrāhui v Waitangi Tribunal [2015] NZHC 1624 at [95].
engaged with. It is not a legal requirement that every urgency decision by the Tribunal is made in the same way as the decision in the urgency application in what became the Whakatōhea Mandate Inquiry. It seems to me too that it can be seen that the Tribunal was cognisant that the Trust Board’s claim related to failures by the Crown when it discussed the nature of the dispute as being between the Trust Board and the Iwi Trust, concluding that “[all] too often a claim like this, said to be against the Crown, is an internal dispute and a dispute between representatives”.111
[254] I do not think it necessary to consider in detail the parties’ arguments about the Tribunal’s jurisdiction to grant or refuse an application for urgency. While the applicants are correct to say that Haronga found that the Tribunal cannot exercise its powers to defer in such a way that defeats a claim I do not think that statement advances the issues in the present matter. That decision concerned whether to grant an urgent hearing into a claim for the Tribunal to make binding recommendations for the return of Crown Forest Licensed Land under s 8HB of the Waitangi Tribunal Act 1975. In that case, the Tribunal had already identified the claimant had a well-founded claim and the constitutional significance of the s 8HB power was deemed determinative. I accept that the Court’s observations in that case must be read in that context. In this case, the preliminary assessment was that the claim was not well-founded, and urgency was not appropriate.
[255] The question for me is whether the Tribunal in the present case appropriately (in a judicial review sense) considered the question of whether or not it should grant the Trust Board’s application for urgency. The applicants say that the Tribunal did not adequately consider the imminence of settlement. In my view, the Tribunal understood the application was for urgency because of the imminence of settlement and that its dismissal would leave the substantive claim to take its turn in the Tribunal’s work schedule.112 It expressly referred to the Guide and its discussion of factors relating to
111 Waitangi Tribunal Urgency Decision, above n 94, at [83]–[87].
112 At [102] of the Waitangi Tribunal Urgency Decision the Tribunal stated “Ngāti Pāoa is on the brink of settlement”.
granting urgency to a hearing. I accept that it did not explicitly refer in its decision to every factor listed but in itself this does not in my view constitute irrationality. 113
[256] For these reasons, I do not consider that the Tribunal’s urgency decision is inherently irrational on the basis it did not respond to the case as pleaded or take account of the Guide and its specified factors relating to urgency.
[257] I turn now to consider each of the two specific allegations of inaccuracy made in relation to the decision.
[258] The first point relates to the Trust Board’s concerns that it remains the mandated entity and the Crown moving to ratify the Ngāti Pāoa settlement without resolving the mandate issue breaches the Treaty principles and the Red Book.
[259] I acknowledge the reliance placed by the Trust Board on the Waitangi Tribunal Whakatōhea Mandate Inquiry Report.114 The Trust Board submitted that this was also a matter where issues were raised about the claimant community register and how the Crown should behave in circumstances where it had concerns over whether the mandated entity still held the mandate. The Tribunal there concluded that the Crown had breached the Treaty principle of active protection in relying on a register for the purposes of a mandate vote, concluding that the Crown had failed to properly inform itself as to the adequacy of the register for the purposes of a vote.115 The Trust Board submits that this reasoning applies in the present case, as to the registers used for the ratification processes.
[260] The Iwi Trust submitted that the context for the Whakatōhea Mandate Inquiry Report was significant and sustained opposition to settlement (not just concern about process as in the present case) and a desire for an historical inquiry by the Tribunal. The Crown submitted that matters of Treaty settlement process, mandate and intra iwi dynamics are matters within the Tribunal’s core area of expertise and are matters of
113 For completeness, and insofar as it is suggested by the Trust Board’s submissions, I do not accept that the Tribunal has incorrectly applied its Guide to Practice and Procedure in its approach to urgency.
114 Waitangi Tribunal Whakatōhea Mandate Inquiry Report (Wai 2662, 2018).
115 At [7.6].
judgement. It argues that the Tribunal does embark on full mandate enquiries where it considers it warranted on the facts, such as in the Whakatōhea Mandate Inquiry Report, and submits that the difference here is that the Tribunal was not persuaded the applicant had made out the case for an inquiry.
[261] I refer to my earlier discussion of matters relating to mandate. In essence, I have concluded that the Trust Board being the mandated entity does not mean it is the only entity that may participate in ratification of a settlement in the particular circumstances in these proceedings and thus the Mandate Decision was not unlawful on the grounds alleged by the applicants. It seems to me that it was open to the Tribunal to reach the conclusion it did that in all the circumstances the failures alleged by the Trust Board in its claim did not have a reasonable chance of succeeding. Accordingly, the Tribunal’s description of the situation, although perhaps colloquial in expression, cannot be seen as irrational.
[262] The second point relates to the Trust Board’s concerns about the inadequacies of the registers used for the ratification processes and the failure for its register to be used.
[263] At the time the application for urgency was made (in July 2020) and the Tribunal decision given (January 2021), the Trust Board did not have discovery available to it in this proceeding. So it was not then able to raise its concern that there are 869 people listed on its register who were not included in the registers of the Iwi Trust or Mr Wilson. Having reviewed the Trust Board’s statement of claim before the Tribunal, it is apparent that the Trust Board’s primary concerns related to the Crown’s failure to engage with it as the mandated entity, including in relation to it proper role in ratification processes. The Trust Board submitted that it put the adequacy of the registers used in issue in its pleadings but this is not apparent to me, from reviewing the statement of claim dated 7 July 2020. In these circumstances, I cannot see that the Trust Board can argue that concerns about the registers used for the ratification processes constitute a material mistake by the Tribunal in its decision.116
[264]The final point relates to the alleged error of law as to the Farm.
116 In any event, I have earlier concluded that the Ratification Decision was not unlawful.
[265] While the Trust Board is correct that the Farm is not a settlement asset in the sense it was already held by the Trust Board as trustee, I do not accept that this error is material or in itself constitutes an error of law. Rather, the key point of possible concern is the Tribunal’s statement that Ngāti Pāoa have shown they wish the Iwi Trust to have the obligation to administer the Farm for them. The Trust Board says this demonstrates that the Tribunal assumed that all members of Ngāti Pāoa, and in particular the beneficial owners of the Farm, have had an opportunity to express their views, when the Trust Board say this is not the case.
[266] Accordingly, the primary issue, once again, is whether the ratification processes in relation to the Deed of Settlement gave an adequate opportunity to Ngāti Pāoa to express their views on how the Farm should be held, and I have discussed this above. In essence I concluded that the approach to the question of the Farm in the ratification processes, and ultimately the Ratification Decision, was not unlawful on any of the grounds alleged by the applicants.
[267] I conclude that the Waitangi Tribunal Urgency Decision is not irrational nor based on an error of law.
Result
[268] The grounds for judicial review in the present circumstances are not made out. Regarding the Crown process proceedings, I have found that the claims are precluded due to the principle of comity or non-interference in parliamentary proceedings. However, in the event that the principle does not preclude the claims, I consider they fail on their merits. The 423 proceeding also fails on its merits.
Costs
[269] If the parties are unable to agree on costs the respondents are to file a memorandum by 1 February 2023 with the applicants having ten days to respond.
McQueen J
Solicitors:
LeeSalmonLong, Auckland for Applicants
Crown Law Office, Wellington for First Respondent Kāhui Legal, Wellington for Second Respondent
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