Solomon v Attorney-General
[2025] NZHC 1811
•3 July 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-000162
[2025] NZHC 1811
UNDER Part 30 of the High Court Rules 2016 and s 2 of the Declaratory Judgments Act 1908 and
the inherent jurisdiction of the Court
IN THE MATTER
of an application for judicial review of a decision made by or on behalf of the Minister of Treaty Waitangi Negotiations and an application for a declaratory
judgment
BETWEEN
MAUI ASHLEY SOLOMON, PAUL TE TEIRA SOLOMON, THOMAS HENRY LANAUZE, GRACE NGAROIMATA
LEGROS AND SHARON ANNE
ELIZABETH WADSWORTH as trustees of the MORIORI IMI SETTLEMENT TRUST
for and on behalf of IMI MORIORI Plaintiffs/Applicants
AND
ATTORNEY-GENERAL
First Defendant/First Respondent
DEENA NGAWHATA WAITIRI, MONIQUE CROON, MELODIE ERUERA- FRASER, JASON SEYMOUR, JOHN LAWRENCE KAMO, DUANE EMENY AND THORNTON LANAUZE-KING as
trustees of NGȂTI MUTUNGA O WHAREKAURI IWI TRUST for and on behalf of NGȂTI MUTUNGA O WHAREKAURISecond Defendants/Second Respondents
Hearing: 18 June 2025 Counsel:
C J Griggs and P C Kelly for Applicants/Plaintiffs
D A Ward and U D Herath for First Defendant/First Respondent T J Castle and T I M Hautapu for Second Defendants/Second Respondents
SOLOMON v ATTORNEY-GENERAL [2025] NZHC 1811 [3 July 2025]
Judgment: 3 July 2025
JUDGMENT OF LA HOOD J
(Application for interim orders)
[1] This is an application for interim orders pending substantive determination of judicial review and declaratory relief proceedings. The context for the application is the Crown’s settlement negotiations under the Treaty of Waitangi | te Tiriti o Waitangi (the Treaty) with two imi/iwi associated with the Chatham Islands,1 namely imi Moriori (Moriori) and Ngāti Mutunga o Wharekauri (Ngāti Mutunga).2 Both imi/iwi claim to hold customary rights and interests in the Chatham Islands, and the Crown considers both to be Treaty partners.
[2] On 25 November 2022, the Crown (the first defendant) entered into an agreement in principle (AIP) with Ngāti Mutunga (whose representatives are the second defendants) to settle the iwi’s historical claims under the Treaty. Clause 4.3 of the AIP sets out a number of provisional Crown acknowledgements that may be included in the deed of settlement, including the following (the acknowledgement):
the Crown acknowledges that its annexation of Wharekauri in 1842 was carried out without any effort to consult with Ngāti Mutunga o Wharekauri. This represented a profound failure to give appropriate recognition and respect to the mana and te tino rangatiratanga of Ngāti Mutunga o Wharekauri.
[3] Moriori, who achieved a Treaty settlement with the Crown in 2021,3 submit that this portion of the AIP impinges on its customary rights and interests, specifically its claim to mana whenua and tino rangatiratanga over the Chatham Islands.
[4] Mr Maui Solomon and the other trustees of the Moriori Imi Settlement Trust, the post-settlement governance entity for Moriori (the plaintiffs), apply for interim
1 Moriori refer to the islands as Rēkohu while Ngāti Mutunga/Māori refer to them as Wharekauri. As I do not wish to express a preference between the name given by each party, in this judgment I refer to the islands as the Chatham Islands unless the context requires otherwise. This is the same approach taken by McQueen J in a strike out decision in these proceedings: Solomon v Attorney-General [2024] NZHC 2385 [McQueen J’s decision] at [2], fn 3.
2 Imi is tā rē Moriori (the Moriori language) term for iwi.
3 Moriori Claims Settlement Act 2021.
orders that the Crown not take any further action consequential on the exercise of the Crown’s power to settle Ngāti Mutunga’s Treaty claim to the extent that it purports to recognise that Ngāti Mutunga holds mana whenua and te tino rangatiratanga over the Chatham Islands (of the nature recognised and protected by article two of the Treaty).
[5]Interim orders are opposed by the Attorney-General and Ngāti Mutunga.
Background
[6] The historical and legal context of this proceeding was summarised by McQueen J in a previous decision of this Court. As will become evident, that decision deals with similar issues to those before me. I gratefully adopt McQueen J’s summary:4
The context of this proceeding
[6] The dispute between Moriori and Ngāti Mutunga o Wharekauri in relation to the Chatham Islands is longstanding and deeply felt. The dispute pre-dates the signing of the Treaty.5 Both Moriori and Ngāti Mutunga o Wharekauri claim to hold customary rights and interests in the Chatham Islands. The current proceeding is one piece of this complex dispute.
[7] The Crown, under its Treaty settlement process, has been in negotiations with both imi/iwi for many years. The Moriori Treaty settlement was finalised in 2021 with the passing of the Moriori Claims Settlement Act 2021. That process was not straightforward and included an unsuccessful challenge from Ngāti Mutunga o Wharekauri.6 The settlement process between Ngāti Mutunga o Wharekauri and the Crown is ongoing, with the latest step in the process being the AIP which is now challenged by Moriori.
[8] The claims to the Chatham Islands by each party are set out in more detail in the 2001 report by the Waitangi Tribunal (the Rēkohu Report).7 For contextual purposes, I briefly outline the history of each imi/iwi and their respective Treaty settlement processes, but this must be read with the caveat that Moriori and Ngāti Mutunga o Wharekauri dispute many aspects of their respective connections to the Chatham Islands. It is not necessary for me to make any findings in this judgment on these matters. I also briefly outline the general Treaty settlement process.
4 McQueen J’s decision, above n 1 (one footnote omitted).
5 See Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Rēkohu: A Report on Moriori and Ngāti Mutunga Claims in the Chatham Islands (Wai 64, 2001).
6 See Ngāti Mutunga o Wharekauri Iwi Trust v Minister for Treaty of Waitangi Negotiations [2019] NZHC 1942.
7 Waitangi Tribunal Rēkohu, above n 5.
Moriori Imi and the Moriori Claims Settlement Act 2021
[9] The historical account I set out here is largely drawn from s 8 of the Moriori Claims Settlement Act, which was agreed by the Crown and Moriori for the purposes of their Treaty settlement.
[10] Moriori karāpuna (ancestors) were the original inhabitants of the islands making up the Chatham Islands. They arrived sometime between 1000 and 1400 CE and all Moriori hokopapa to (are descended from) the founding ancestor Rongomaiwhenua. Moriori lived undisturbed for many centuries until their first contact with Pākehā in 1791. Part of tikane Moriori was the practice of non-violence, known as Nunuku’s law of peace.
[11] In late 1835, five years prior to the signing of the Treaty, about 900 people of two Māori iwi, Ngāti Mutunga and Ngāti Tama, sailed to the Chatham Islands on a Pākehā ship. They were welcomed and fed by Moriori in accordance with tikane Moriori. They began to walk the land. Some Moriori wanted to resist the invaders, but elders urged the people to obey Nunuku’s law of peace. Moriori were attacked by the visitors and approximately one-sixth of the population were killed. Those who survived were enslaved. Then in 1842, the Chatham Islands were annexed to New Zealand. However, the Crown took no action before the late 1850s to address Moriori enslavement.
[12] In 1870, when the Native Land Court sat on the Chatham Islands, it awarded more than 97 per cent of the land to the recently arrived Māori and less than three per cent to Moriori, notwithstanding that tikane Moriori did not recognise conquest as a means of gaining land rights. Following this, and as a result of being left virtually landless, many of the remaining Moriori were forced to abandon the Chatham Islands.
[13] In the early twentieth century, prominent ethnographers wrongly portrayed Moriori as extinct and racially distinct from, and inferior to, Māori. The Crown contributed to this portrayal. Since the late 1970s, Moriori descendants have been working to rebuild their identity and culture as a distinct people with a unique heritage. In pursuit of this goal, the Moriori Imi Settlement Trust entered into a final Treaty settlement with the Crown.8 That settlement involved historical, cultural and commercial redress and was preceded by the Rēkohu Report.9
[14]The Rēkohu report concluded, among other things, that:10
Moriori are the same people as Māori but, through isolation, they are unique as a Māori tribe. The Treaty of Waitangi Act 1975 provides that only Māori can bring a claim to the Waitangi Tribunal. It is obvious that that must include the Moriori tribe – unless the Treaty of Waitangi itself excluded them.
…
8 Moriori Claims Settlement Act 2021, s 14.
9 Waitangi Tribunal Rēkohu, above n 5.
10 At 2.4.4, 2.6.2 and 2.7.5.
We conclude that Moriori are tangata whenua. So also, today, are Ngāti Mutunga.
…
We conclude that, like Māori, Moriori are beneficiaries of the Treaty of Waitangi and are able to bring claims to the Tribunal.
…
[15] The final settlement included an agreed historical account (as summarised above), and a Crown apology for its breaches of the Treaty. Cultural redress included the provision to Moriori of certain properties, some in fee simple and some subject to overlay classifications, the ability to manage customary fisheries in the Chatham Islands with Ngāti Mutunga o Wharekauri as well as a right of first refusal in relation to commercial fishing quota. The Crown also issued statutory acknowledgements and deeds of recognition over certain areas. In terms of commercial and financial redress, Moriori were given a monetary settlement and a shared right of first refusal over certain land with Ngāti Mutunga o Wharekauri.
Ngāti Mutunga o Wharekauri and the AIP
[16] The AIP states that the proposed Deed of Settlement is to include an historical account but as there is not yet any final settlement between the Crown and Ngāti Mutunga o Wharekauri, such an account is not yet agreed and available. However, some Ngāti Mutunga o Wharekauri history has been provided by Mr Thomas McClurg, Ngāti Mutunga o Wharekauri and Ngāti Mutunga Iwi, in his affidavits filed in this proceeding. Some history is also set out in the Rēkohu Report, although I note that Mr McClurg records that Ngāti Mutunga o Wharekauri contest that account.
[17] Ngāti Mutunga are Māori who trace their descent to their shared ancestor Mutunga. The ancestral home of Ngāti Mutunga is Northern Taranaki. After conflicts within Taranaki in the early 1800s, members of Ngāti Mutunga, alongside other Taranaki iwi, moved south to Te Whanganui- a-Tara.
[18] Mr McClurg describes Ngāti Mutunga o Wharekauri as also Māori but with a more diverse whakapapa reflective of the two voyages of the “Rodney”, a Pākehā ship, in late 1835 from Te-Whanganui-a-Tara to the Chatham Islands.
[19] Today, Ngāti Mutunga o Wharekauri is an umbrella term that embraces Māori who descend from people who may have originally identified themselves as Ngāti Mutunga, Ngāti Tama, Kekerewai, Haumia or by the hapū names of those iwi. Like Moriori imi, Ngāti Mutunga o Wharekauri claim mana whenua over the Chatham Islands. They also claim that the Crown breached its obligations to Ngāti Mutunga o Wharekauri under the Treaty by acts and omissions before 1992.
[20] Ngāti Mutunga o Wharekauri, having supported the passage of the Moriori Claims Settlement Act, are currently engaged in their own settlement
process concerning claims of historical Treaty breaches by the Crown.11 After years of negotiating, the AIP was entered into on 25 November 2022. It records the progress made in negotiations but does not determine or exclude any matter. This provides a platform for the Crown and Ngāti Mutunga o Wharekauri to work towards a formal deed of settlement. The AIP states that it is entered into on a without prejudice basis, is non-binding and does not create legal relations. Any Deed of Settlement that follows will have no force until settlement legislation is enacted by Parliament.
[21] In terms of the historical redress, the AIP proposes several provisional Crown acknowledgements that may be included in the Deed of Settlement. Relevant to this proceeding are the following acknowledgements:
4.3.1the Crown acknowledges Ngāti Mutunga o Wharekauri as tangata whenua of Wharekauri (the Chatham Islands);
4.3.2the Crown acknowledges that its annexation of Wharekauri in 1842 was carried out without any effort to consult with Ngāti Mutunga o Wharekauri. This represented a profound failure to give appropriate recognition and respect to the mana and te tino rangatiratanga of Ngāti Mutunga o Wharekauri. The Crown further acknowledges that its failure to seek the consent of Ngāti Mutunga o Wharekauri did not meet the standards of conduct set out in the instructions given to Governor Hobson when he was sent from England to establish sovereignty over New Zealand;
…
[22] The cultural redress proposed in the AIP includes a cultural revitalisation payment, the vesting of properties in Ngāti Mutunga o Wharekauri (including land on the Chatham Islands—some as tenants in common with Moriori), and various statutory acknowledgements. The financial and commercial redress proposed in the AIP includes the shared right of first refusal over land (as mentioned above in the context of the Moriori settlement), a commercial redress payment, and a right of first refusal over fisheries quota.
Strike out decision of McQueen J
[7] That decision was an application by the Attorney-General and Ngāti Mutunga to strike out Moriori’s claim for an order setting aside the AIP and the following declarations:12
11 Although as I noted earlier, Ngāti Mutunga did seek at one point to challenge the Moriori settlement process. See Ngāti Mutunga o Wharekauri Iwi Trust v Minister for Treaty of Waitangi Negotiations, above n 6.
12 McQueen J’s decision, above n 1, at [44].
(a)Moriori are and have since time immemorial been the customary owners exercising tino rangatiratanga over all the islands in the Rēkohu group under tikane Moriori, common law and international law;
(b)The Crown owes obligations under Article Two of the Treaty in respect of the henu of the Rēkohu group exclusively to Moriori and to no other party;
(c)The Crown owes obligations under Article Two of the Treaty in respect of tangible miheke found in or on the henu of the Rēkohu group exclusively to Moriori and to no other party;
(d)No party other than Moriori is lawfully entitled to claim tino rangatiratanga, mana whenua, or any other customary right over the henu or moana of the Rēkohu group; and
(e)It would be unlawful for the Crown to enter into a settlement with [Ngāti Mutunga] which includes the transfer to that iwi of any interests in or rights affecting henu in the Rēkohu group, or tangible miheke found in those islands.
[8] McQueen J first addressed declaration (e), finding that it was untenable and “plainly must be struck out.”13 She reasoned that the decision to transfer property under a Treaty settlement is given effect through the legislative process and is a matter for Parliament. Such a declaration would prevent legislation transferring properties and interests to Ngāti Mutunga in the Chatham Islands.14 Granting declaration (e) would thereby interfere with the legislative process and violate the principle of non- interference in parliamentary proceedings.15 McQueen J noted that declaration (e) was similar to the declaration the Supreme Court considered must be struck out in Ngāti Whātua.16
[9] In respect of the remaining declarations, McQueen J considered a Court could not set aside an AIP because of what it says about redress. She said that, like declaration (e), this would be interfering with the legislative process as it would be dictating what could, or could not, go before Parliament.17
13 At [89] and [91].
14 At [89].
15 Citing Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 at [62]; Griggs v Attorney-General [2021] NZHC 2913 at [14]; Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at [46]; Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767; Ngāti Mutunga o Wharekauri Asset Holding Company Ltd v Attorney-General [2020] NZCA 2, [2020] 3 NZLR 1 at [27] and [33]–[35]; and Hata v Attorney-General (No.2) [2023] NZHC 2919 at [33]–[34].
16 At [90]; Ngāti Whātua Ōrākei Trust v Attorney-General (SC), above n 15, at [65]–[66].
17 At [93] and [95].
[10] Further, McQueen J held that the decision to enter into the AIP is not a distinct public law decision amenable to judicial review, as it does not create legal relations or determine rights, is entered into on a without prejudice basis, and is a non-binding agreement.18 She also noted that the AIP merely begins the process of negotiation and is likely to be substantially reviewed.19
[11] However, McQueen J said that this did not mean decisions in respect of AIPs could not be judicially reviewed in any circumstances. She cited Palmer J’s comment in Ngāti Whātua (No 4) that applications of policy are not the policy itself, noting that Palmer J made comments in that case about the application of an overlapping interests policy in respect of rights derived from tikanga.20
[12] Therefore, McQueen J held that it was open to Moriori to plead existing legal and customary rights, and a cause of action focused on those rights, that does not attack or rely on the process of the negotiation of the Treaty settlement between the Crown and Ngāti Mutunga.21 This would preserve Moriori’s access to the courts to have its existing rights and interests determined,22 while not breaching the principle of non- interference.23
[13] The Judge struck out the relief seeking to set aside the AIP and the claim for judicial review, held that the remaining claims must be repleaded, and granted leave to Moriori to file an amended statement of claim.24
[14] Moriori have appealed this decision. The appeal is to be heard by the Court of Appeal in March 2026.
18 At [96].
19 At [99].
20 At [100]; Ngāti Whātua Ōrākei Trust v Attorney-General (No 4), above n 15.
21 At [101], [103], [107] and [108].
22 At [103].
23 At [107]. The principle is given legislative recognition in s 11 of the Parliamentary Privileges Act 2014.
24 At [110]–[111].
This application
[15] As already noted, Moriori now seek interim orders that the Crown not take any further action to settle Ngāti Mutunga’s Treaty claim to the extent that it purports to recognise that Ngāti Mutunga holds mana whenua or te tino rangatiratanga over the Chatham Islands.
[16] Moriori submit that interim relief is required until the Court of Appeal has determined the appeal against McQueen J’s decision. This is because allowing the process to continue will mean the acknowledgement, set out at [2] above, will be confirmed in the draft deed of settlement (which is close to finalisation) and the legislation to give effect to the settlement (which has already been drafted). The result of this process will be that Parliament’s enactment of the Bill containing the acknowledgement will be a declaration of Ngāti Mutunga’s right to te tino rangatiratanga over the Chatham Islands that will bind the Court and prevent it providing the relief sought by Moriori.
Test for interim relief
[17] The Court may grant an interim order under r 30.4 on whatever terms and conditions the Court thinks just. The parties agree that the test to be applied was confirmed by the Supreme Court in Minister of Fisheries v Antons Trawling:25
[3] Before a Court can make an interim order … it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.
Is an interim order reasonably necessary to preserve Moriori’s rights?
[18] Mr Griggs, for Moriori, responsibly accepted that if the acknowledgement cannot be interpreted as a binding parliamentary declaration of Ngāti Mutunga’s right to mana whenua or te tino rangatiratanga over the Chatham Islands, there would be no basis for interim relief. This is because inclusion of the acknowledgement in the deed
25 Minister of Fisheries v Antons Trawling Co Ltd [2007] NZSC 101.
of settlement and settlement legislation in those circumstances could not impinge on Moriori’s rights or interests, or the relief claimed in these proceedings.
[19] The defendants’ position is that the use of the phrase te tino rangatiratanga in the AIP context relates to autonomy and self-determination rather than exclusive mana whenua or authority over the Chatham Islands (noting that the acknowledgement recognises “te tino rangatiratanga of Ngāti Mutunga o Wharekauri” but does not recognise te tino rangatiratanga over the Chatham Islands). The Attorney-General says the Crown’s acknowledgement of an iwi/imi’s tino rangatiratanga in a Treaty settlement cannot, and does not, impinge on the rights and interests of other groups. Therefore, legislation that gives effect to the settlement containing the acknowledgement cannot amount to a parliamentary declaration of Ngāti Mutunga’s exclusive te tino rangatiratanga over the Chatham Islands that would bind the Court.
[20] Moriori disagree. They acknowledge that te tino rangatiratanga can have the meaning suggested by the Crown in some contexts. However, they rely on affidavit evidence filed on behalf of Moriori and Ngāti Mutunga that “te tino rangatiratanga” means “direct authority/chieftainship”. Moriori say that the acknowledgement is a parliamentary declaration of Ngāti Mutunga’s exclusive te tino rangatiratanga over the Chatham Islands. Moriori submit that the inclusion of the acknowledgment in the settlement legislation would constitute a grave breach of the Crown’s obligations to Moriori under the Treaty for which no amount of money could ever compensate. They also say the acknowledgement would “prejudge” the binding declaration of right sought by Moriori in these proceedings that no party other than Moriori is lawfully entitled to claim tino rangatiratanga, mana whenua or any other customary right over the Chatham Islands.
[21] I do not think Moriori’s argument is a tenable interpretation of the acknowledgement. The plain words make clear that it is a Crown acknowledgment, and not a parliamentary declaration of Ngāti Mutunga’s rights.26 As the Attorney-
26 I note for completeness that I found unconvincing Mr Griggs’ submission that the second sentence of the acknowledgement must be considered more than a Crown acknowledgement because it does not start with the words “The Crown further acknowledges…”. Its status as a Crown acknowledgement could not be clearer from the introductory words to clause 4.3 of the AIP, namely “The following Crown acknowledgements…”.
General submits, Crown acknowledgements do not, by themselves, confer legal rights or duties on the parties to a settlement deed or anyone else. As Palmer J has held, the Crown’s power to enter Treaty settlements “cannot override rights and liberties prescribed by law, whether they be conferred by statute, common law or tikanga.”27 Thus, the acknowledgement cannot extinguish or abrogate any customary rights or interests of Moriori. Moreover, simply including the acknowledgement in the settlement legislation does not convert it to a parliamentary declaration of rights.
[22] This interpretation of the acknowledgement accords with a purposive and contextual interpretation of it in the settlement legislation.28 The legislation will contain standard provisions that state:
(a)its purpose is “to record the acknowledgements and apology given by the Crown” and “to give effect to certain provisions of the deed of settlement that settles the historical claims [of Ngāti Mutunga]”;29
(b)the acknowledgement provisions “record the text of the acknowledgements and apology given by the Crown” in the deed of settlement;30 and
(c)“[i]t is the intention of Parliament that the provisions of this Act are interpreted in a manner that best furthers the agreement expressed in the deed of settlement.”31
[23] In addition, the Crown acknowledgements will be part of the introductory background provisions positioned under the heading, “Summary of historical account, acknowledgements and apology of the Crown”, and will not form part of the later cultural or commercial redress provisions.32
27 Ngāti Whātua Ōrākei Trust v Attorney-General (No 4), above n 15, at [65] and [575].
28 Legislation Act 2019, s 10.
29 See, for example s 3, of the Moriori Claims Settlement Act 2021.
30 See, for example s 7, of the Moriori Claims Settlement Act 2021.
31 See, for example s 11, of the Moriori Claims Settlement Act 2021.
32 See, for example, the Moriori Claims Settlement Act 2021.
[24] It follows that the scheme and purpose of the settlement legislation supports the conclusion that the acknowledgment is not a binding parliamentary declaration of Ngāti Mutunga’s customary rights over the Chatham Islands.
[25] This conclusion is further supported by established principles. It has been held that legislation recording the Crown’s acknowledgements and recognition of rights to one group is unlikely to be interpreted as prejudicing legitimate claims of extant customary rights by another group. In Hart v Director-General of Conservation, Cooke J held that the fact that te Rūnanga o Ngāi Tahu’s Treaty settlement, codified by legislation, identifies the area of its takiwā and gives it rights does not mean that other Māori groups (there, te Rūnanga a Rangitāne o Wairau) have no relevant cultural rights in that area.33 Cooke J noted that this point has been reiterated by a series of decisions of the Waitangi Tribunal and courts.34
[26] I accept the Attorney-General’s submission that the Crown is not able to, and does not purport to, adjudicate on relative customary rights or interests when making acknowledgements in a settlement context. Rather, these are acknowledgments by the Crown to one group, in an instrument that aims to restore and promote a new relationship between the parties to the settlement. This is apparent from the background correspondence to the acknowledgement, in which the Crown has made clear that acknowledgments of Ngāti Mutunga’s tino rangatiratanga “does not mean the Crown has agreed that Ngāti Mutunga have exclusive mana whenua over [the Chatham Islands]”, and that this “cannot, and does not, impinge on the rights and interests of other groups.” This is also consistent with the Crown’s acknowledgment of Moriori as tchakat henu (tangata whenua) and waina pono (original inhabitants) of the Chatham Islands in the Moriori Claims Settlement Act 2021.35
[27] I also accept the Attorney-General’s submission that the Crown position is supported by Kamo v Minister of Conservation, where the Court of Appeal noted Moriori and Ngāti Mutunga’s competing claims of mana whenua over the
33 Hart v Director-General of Conservation [2023] NZHC 1011, [2023] 3 NZLR 42 at [98]. See also [99]–[104] and the authorities discussed there.
34 At [99].
35 Sections 9(1) and 10(a).
Chatham Islands, and held that mana whenua is not static and evolves to meet the needs of the time and could come to be shared.36
[28] It is also important to note that the Attorney-General concedes that inclusion of the acknowledgement in the deed of settlement, and codification in settlement legislation, will not prevent Moriori seeking relief in these proceedings following the repleading of its claims directed by McQueen J.
[29] For these reasons, I consider interim relief is not reasonably necessary to preserve Moriori’s existing rights or to enable it to obtain relief in these proceedings. However, in case I am wrong about this, I will go on to consider other arguments advanced in support of interim relief.
Other arguments in support of interim relief
Prospects of success on appeal
[30] Moriori submit that the interim relief is necessary because the Court of Appeal might disagree with McQueen J that the principle of non-interference is breached by the causes of action that would have the effect of halting the settlement process. Moriori therefore effectively seek a stay of McQueen J’s judgment pending the Court of Appeal’s decision.
[31] Moriori also submit they have a strong case in the substantive proceeding that Moriori are and have been the only imi/iwi exercising tino rangatiratanga and other customary rights over the Chatham Islands. They submit they are therefore the only party owed obligations in respect of the Chatham Islands under article two of the Treaty. The substantive claim involves complex issues of great significance to Moriori and Ngāti Mutunga that I am in no position to assess at this stage of the proceedings. However, I am able to assess the strength of Moriori’s appeal against McQueen J’s decision.
36 Kamo v Minister of Conservation [2020] 2 NZLR 746 at [25]–[30] and [36]; see also the decision in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4), above n 15, at [47] and [442] that mana whenua is not an exclusive right.
[32] First, Moriori submit that McQueen J erred in finding that the AIP is not amenable to judicial review. They submit it is amenable to review as a preliminary decision.37 McQueen J found that the decision to enter the AIP was not a distinct public law decision amenable to judicial review, noting that the AIP is “likely to be substantially reviewed” because of the overlapping interests matters set out in the AIP and because an AIP is, by its very nature, made to begin a process of negotiation.38 McQueen J’s reasoning on this issue appears sound and is strengthened by my view that the acknowledgement should not be interpreted as impeding Moriori’s legal rights or interests.
[33] However, I say no more about this first issue because I consider Moriori has little prospect of successfully appealing the second basis for McQueen J’s decision. This second issue is whether McQueen J was wrong to conclude that the principle of non-interference with the legislative process prevents the Court making findings about the lawfulness of the AIP.39
[34] Moriori submit that McQueen J’s decision on this issue is inconsistent with the Supreme Court’s decision in Wairarapa Moana ki Pouākani v Mercury NZ Ltd.40 Mr Griggs emphasised that a decision to enter into an AIP and deed of settlement is made by the executive, and the legislature is not seized of the matter until the settlement legislation has been introduced as a Bill. He submitted that the principle of non-interference with parliamentary proceedings cannot be violated until there is a Bill before Parliament.
[35] In striking out declaration (e), McQueen J considered that the declaration was similar to the challenge struck out by the Supreme Court in Ngāti Whātua Ōrākei Trust v Attorney-General.41 Mr Griggs submitted that the Supreme Court majority’s decision in Ngāti Whātua (to strike out a challenge to a decision to legislate to transfer
37 Singh v Chief Executive Ministry of Business, Innovation and Employment [2014] NZCA 220, [2014] 3 NZLR 23.
38 McQueen J’s decision, above n 1, at [99].
39 At [108].
40 Wairarapa Moana ki Pouākani v Mercury NZ Ltd, above n 15.
41 McQueen J’s decision, above n 1, at [90]; Ngāti Whātua Ōrākei Trust v Attorney-General (SC), above n 15, at [65]–[66].
properties under a Treaty settlement)42 was overruled by the majority in Wairarapa Moana ki Pouākani v Mercury NZ Ltd. He submitted that this is because the Court in Wairarapa cited Elias CJ’s minority decision in Ngāti Whātua, including that “[u]ntil Parliament changes the law, the courts must be open to citizens who seek to have their existing legal interests and rights determined”.43 Mr Griggs therefore submitted that Wairarapa is authority for the proposition that the principle of non-interference does not apply unless there is a Bill before Parliament.
[36] I consider there is no support in Wairarapa for the proposition that the non- interference principle only applies when a Bill is before Parliament. Nor can the Court’s citation of general principles from the minority judgment of Elias CJ (with which the other members of the Court appeared to take no issue) mean the Court overruled Ngāti Whatua. A more accurate reading of the case, adopting Cooke J’s formulation in a subsequent decision, is the Court clarified that Parliament’s decision to legislate in a manner that may alter legals rights does not exclude access to the court to have existing legal rights determined.44 The Court in Wairarapa noted that the appeals did not put the Bill in issue in any way, and that as they raised orthodox claims of statutory or other right, there was no breach of the non-interference principle.45 This distinguishes the appeals in Wairarapa from the struck out relief in Ngāti Whātua.
[37] McQueen J noted that declaration (e) was similar to the declaration the Supreme Court considered must be struck out in Ngāti Whātua.46 She also observed that, although the principle of non-interference has developed beyond the decision in Ngāti Whātua, it has not changed in such a way as to permit declaration (e) to proceed.47 The Judge further noted that parties can have their rights determined by the Court but they cannot ask the Court to interfere with the legislative function.48 I agree with McQueen J’s conclusions on these matters.
42 Ngāti Whātua Ōrākei Trust v Attorney-General (SC), above n 15, at [65]–[66].
43 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd, above n 15, at [46], citing Ngāti Whātua Ōrākei Trust v Attorney-General (SC), above n 15, at [119].
44 Hata v Attorney-General (No.2), above n 15, at [34].
45 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd, above n 15, at [47]. McQueen J references this in her decision: McQueen J’s decision, above n 1, at [82].
46 At [90]; Ngāti Whātua Ōrākei Trust v Attorney-General (SC), above n 15, at [65]–[66].
47 At [90].
48 At [90].
[38] The fallacy of the argument that the principle of non-interference only applies once a Bill has been introduced is demonstrated by the decision in Te Runanga o Wharekauri Rekohu Inc v Attorney-General. There, the Court of Appeal held that Parliament includes both the executive and the House of Representatives, and the principle of non-interference means the Court cannot prevent a minister presenting a Bill to the House for consideration.49 The Court noted that the deed of Treaty settlement in issue was a political compact linked with contemplated parliamentary activity in relation to which Parliament was free to act as it sees fit.50 The decision remains good law and is a complete answer to the submission that there must be a Bill before the House before the non-interference principle applies.
[39] Based on these principles, I consider the argument McQueen J has erred on this issue is weak (at best). I agree with her that granting any relief that would set aside the acknowledgement in the AIP or deed or settlement, or declare it unlawful, would interfere with the legislative process and violate the principle of non- interference in parliamentary proceedings.51
The overall justice of the case
[40] In terms of other factors relevant to the overall justice of the case, the Attorney-General notes that the courts have emphasised the non-justiciability of the “nature, form, and amount” of redress in Treaty settlements;52 and the unfairness of one group having veto power over another group’s settlement.53 The Attorney-General also notes that these factors have led this Court to say that a “strong” or “very compelling” case would need to be demonstrated on an application for interim relief seeking to prevent the signing of an historic Treaty settlement.54 Finally, the Attorney- General observes that counsel has been unable to identify any Treaty or Crown-Māori case where the Court has granted interim relief of the kind sought here.
49 Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) at 308.
50 At 308–309.
51 At [89]–[101].
52 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NLZR 1056 at [89].
53 Hata v Attorney-General, above n 15, at [29] and [55]; Ngāti Mutunga O Wharekauri Iwi Trust v Minister for Treaty of Waitangi Negotiations [2019] NZHC 1942 at [40].
54 Hata v Attorney-General, above n 15, at [29]; Ngāti Mutunga O Wharekauri Iwi Trust v Minister for Treaty of Waitangi Negotiations, above n 53, at [40].
[41] I consider the Attorney-General was right to emphasise these points given this is an application for interim relief that would prevent the completion of an historic Treaty settlement. I do not accept Mr Griggs’ submission that the Court should have regard to the fact that there is a simple solution the parties could choose to implement, namely agreeing to remove the offending words in the acknowledgement until the Court’s determination of these proceedings (with the settlement being implemented in all other respects). As the defendants submit, what may appear simple on its face can be extraordinarily complex in the Treaty settlement context.
Conclusion on application for interim orders
[42] For the reasons set out above, I consider interim relief is not reasonably necessary to preserve Moriori’s rights. Nor do I consider the strength of Moriori’s appeal against McQueen J’s decision, or the overall justice of the case, favour interim relief.
[43]I therefore dismiss the application for interim orders.
Media application
[44] Finally, I will give my reasons for granting Māori TV’s application to record sound and video at the hearing. The application was supported by Moriori, opposed by Ngāti Mutunga, and the Crown took a neutral position. I accepted that the principle of open justice should prevail for the following reasons. There is a high public interest in the outcome of the substantive proceeding, which includes interlocutory steps such as this application for interim orders. Although this was an interlocutory hearing that would normally be in chambers, Moriori and Ngāti Mutunga wanted it to take place in open court to allow their respective supporters to be present. There were no issues of privacy, confidentiality, suppression, or prejudice to the substantive proceeding, that might displace the principle of open justice. Moreover, the strike out decision of McQueen J in these proceedings has been publicly available without any suppression or confidentiality orders since it was delivered on 1 November 2023.55
55 McQueen J’s decision, above n 1.
Costs
[45] If costs cannot be agreed, the parties are to file memoranda within 15 working days of receipt of this judgment and any reply memoranda five working days thereafter. I will determine costs on the papers.
La Hood J
Solicitors:
Bennion Law, Wellington for Applicants/Plaintiffs
Crown Law Office, Wellington for First Defendant/First Respondent Chris Ritchie, Wellington for Second Defendants/Second Respondents
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