Smiler v Attorney-General

[2025] NZHC 3090

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-418

[2025] NZHC 3090

UNDER

the Declaratory Judgments Act 1908 and the Common Law

BETWEEN

KINGI WINIATA SMILER

WALLACE PATRICK HAUMAHA ALAN PAREKURA TOROHINA HARONGA
ROBERT VINCENT COTTRELL TRACEY TANIA HOUPAPA

First Applicants

POUAKANI CLAIMS TRUST

Second Applicant

NEW ZEALAND MĀORI COUNCIL

Third Applicant

AND

THE ATTORNEY-GENERAL

Respondent

Hearing:

On the papers

Counsel:

M S Smith KC, R B D Drummond, H Z Yáng for First and Second Applicants

D M Salmon KC, F E Geiringer for Third Applicant D A Ward and Y Monifar-Yong for Respondent

J W J Graham and R M Irvine-Shanks for Te Rūnanga o Ngāi Tahu (as Interested Party)

J F Ferguson, M M E Wikairi and W I Gucake for Pou Taiao and Te Whakakitenga o Waikato Incorporated (as Interested Parties)

Judgment:

16 October 2025

RESULTS JUDGMENT OF ISAC J

SMILER v ATTORNEY-GENERAL [2025] NZHC 3090 [16 October 2025]

[1]    On 18 September 2025, Te Rūnanga o Ngāi Tahu (TRoNT) was granted leave by consent to join this proceeding as an interested party. The terms of the consent orders provided that TRoNT may only file evidence in the proceeding with leave of the Court and any application for leave, together with the proposed evidence, was to be filed and served by 26 September 2025.

[2]    TRoNT made such an application on 26 September accompanied by the proposed evidence of Professor Te Marie Tau. The Attorney-General opposed the grant of leave. Following directions by Gwyn J of 6 October 2025, TRoNT’s leave application has been referred to me as the Duty Judge for consideration. I record that the file was referred to me after 3 pm on 15 October 2025.

[3]    Having considered the application, and the memoranda of the parties in support and opposition, I am satisfied  it  is  appropriate  to  grant  TRoNT’s  application.  My reasons will follow at a later date.

[4]    I reserve leave for the Attorney to apply for leave to file evidence in reply, should that be considered necessary. If such an opportunity is sought, the Crown should file a memorandum with proposed directions after consulting the parties.

[5]    In addition, the Registrar has referred to me memoranda by the Attorney and the first and second applicants relating to unresolved evidence objections. The parties sensibly do not seek determination of the objections prior to trial. But they differ on the appropriate order for the exchange of submissions. Having considered the matters raised in the memoranda, I agree with Mr Smith KC’s submission that as the objections are raised by the respondent, the respondent ought to first address the basis for      the objection so the first and second applicants may then reply.

[6]    Accordingly, I make the directions at [4.1]—[4.4] of Mr Smith’s memorandum of 13 October 2025.

[7]    Given the already significant pressure to complete the fixture in the time allocated, I encourage counsel to focus on the central issues in contest rather than

questions of admissibility. Experience suggests the reasons that may support an objection to admissibility are equally relevant to questions of weight and cogency.

Isac J

Solicitors:

Gibson Sheat, Wellington for First Applicants

Lee Salmon Long, Auckland for Second Applicant Crown Law, Wellington for Respondent

Chapman Tripp, Wellington for Te Rūnanga o Ngāi Tahu (as Interested Party)

Whāia Limited, Wellington for Pou Taiao and Te Whakakitenga o Waikato Incorporated (as Interested Parties)