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Roebuck v Attorney-General

Roebuck v Attorney-General

Case [2022] NZHC 3341 12 December 2022

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-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 Applicant

PAULINE OGDEN
Third Applicant

AND

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 Respondent

THE 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]

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Roebuck v Attorney-General

Details

AGLC: Roebuck v Attorney-General [2022] NZHC 3341
Case: [2022] NZHC 3341
Decision Date: 12 December 2022

CaseChat Overview and Summary

In the High Court of New Zealand, three proceedings were heard together involving Ngāti Pāoa and the settlement of Ngāti Pāoa’s claims under Te Tiriti o Waitangi. The applicants, kuia of the Kauahi hapū of the iwi Ngāti Pāoa, challenged the Crown’s decision to ratify the Ngāti Pāoa Deed of Settlement, arguing it was unlawful. The Crown and the Ngāti Pāoa Iwi Trust rejected these claims. The applicants also challenged the Waitangi Tribunal’s decision not to grant an urgent hearing for their claim, contending it was irrational and involved errors of law. The Crown and the Ngāti Pāoa Iwi Trust rejected this claim. The court found that the applicants’ claims in the Crown process proceedings were precluded by the principle of comity or non-interference in parliamentary proceedings. Even if the principle did not preclude the claims, the court found they failed on their merits. The 423 proceeding also failed on its merits. The court found that the Waitangi Tribunal Urgency Decision was not irrational nor based on an error of law. The grounds for judicial review in the present circumstances were not made out. The respondents were to file a memorandum on costs by 1 February 2023, with the applicants having ten days to respond.

Orders