Solomon v Attorney-General
[2024] NZHC 2385
•26 August 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-162
[2024] NZHC 2385
UNDER Part 30 of the High Court Rules AND UNDER
Section 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 for Treaty of Waitangi Negotiations
AND IN THE MATTER
of an application for a declaratory judgment
BETWEEN
MAUI SOLOMON, PAUL SOLOMON,
THOMAS LANAUZE, GRACE LEGROS
and SHARON WADSWORTH, as trustees of the MORIORI IMI SETTLEMENT
TRUST for and on behalf of IMI MORIORI Plaintiffs/Respondents
AND
ATTORNEY-GENERAL
First Defendant/First Applicant
DEENA WHAITIRI, MONIQUE CROON, MELODIE ERUERA-FRASER, JASON SEYMOUR, JOHN KAMO, DUANE
EMENY and THORNTON LANAUZE-
KING, as trustees of NGĀTI MUTUNGA O WHAREKAURI IWI TRUST for and on behalf of NGĀTI MUTUNGA O
WHAREKAURISecond Defendants/Second Applicants
Hearing: 1 November 2023 Appearances:
C J Griggs, P C Kelly and E A Whiley for Plaintiffs/Respondents D A Ward and C C McKay for First Defendant/First Applicant
T J Castle and T A Castle for Second Defendants/Second Applicants
SOLOMON, SOLOMON, LANAUZE, LEGROS and WADSWORTH, as trustees of the MORIORI IMI
SETTLEMENT TRUST for and on behalf of IMI MORIORI v ATTORNEY-GENERAL [2024] NZHC 2385
[26 August 2024]
Judgment: 26 August 2024
JUDGMENT OF McQUEEN J
Table of Contents
Para Nos
Introduction [1]
The context of this proceeding [6]
Moriori Imi and the Moriori Claims Settlement Act 2021 [9]
Ngāti Mutunga o Wharekauri and the AIP [16]
Treaty settlement processes [26]
The statement of claim [35]
The strike out applications [46]
Strike out: general principles [54]
Issues to be determined [63]
Preliminary issue [65]
Position of the parties in relation to strike out [70]
Discussion—strike out applications [76]
Applications for further initial disclosure, further particulars, and
security for costs [112]
Result [119]
Costs [124]
Introduction
[1] In this proceeding, Mr Maui Solomon and the other trustees of the Moriori Imi Settlement Trust, the post-settlement governance entity for imi Moriori (Moriori),1 apply for judicial review of the decision by the Minister of Treaty Negotiations to enter into an Agreement in Principle with Ngāti Mutunga o Wharekauri (the AIP) for the purpose of settling the historical claims of Ngāti Mutunga o Wharekauri under te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty).
1 Imi is tā rē Moriori (the Moriori language) term for iwi.
[2] Moriori claim that the actions taken by the Crown to settle historical claims with Ngāti Mutunga o Wharekauri breach their rights under the Treaty, international law and tikane Moriori.2 Moriori seek an order setting aside the AIP and a declaration that it would be unlawful for the Crown to enter into a settlement with Ngāti Mutunga o Wharekauri containing certain redress. Moriori also seek declaratory relief relating to their customary rights and the Crown’s obligations under Article Two of the Treaty in relation to islands in the Rēkohu Group | Wharekauri | the Chatham Islands (the Chatham Islands).3
[3] The Attorney-General and Ngāti Mutunga o Wharekauri apply to strike out part or all of the Moriori claim. The Attorney-General argues that the claim, as it relates to the AIP, is not amenable to judicial review because the decision is a result of policy, political and fiscal considerations, and it is untenable for this Court to set the AIP aside. The Attorney-General says further that the declaration sought relating to any future settlement with Ngāti Mutunga o Wharekauri is contrary to the principle of non- interference. However, the Attorney-General does not seek to strike out the other declarations (although she will oppose them at any substantive hearing) and instead argues that those declarations require repleading.
[4] Ngāti Mutunga o Wharekauri seek that the whole claim be struck out. Ngāti Mutunga o Wharekauri support the grounds put forward by the Attorney- General and says further that the entire claim (including the declarations sought as to customary rights) is so connected with the Treaty settlement negotiation process that it cannot survive given the principle of non-interference. If any part of the statement of claim survives the strike out application, Ngāti Mutunga o Wharekauri also seek orders against Moriori relating to discovery, particulars and security for costs.
[5] Moriori oppose the applications made by the Attorney-General and Ngāti Mutunga o Wharekauri. Moriori say the Crown may only enter into an Agreement in Principle with Ngāti Mutunga o Wharekauri that is consistent with
2 Tikane Moriori is the customary law of Moriori.
3 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.
tikane Moriori, the Treaty, international law and common law, and that this raises legal questions properly before the Court.
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.4 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 finding in this judgment on these matters. I also briefly outline the general Treaty settlement process.
4 I record that this extended to submissions being made before me about whether the circumstances in which this proceeding was commenced adhere to tikanga Māori or tikane Moriori. For the purposes of this application, I do not need to reach any conclusion on such matters.
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.
…
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
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.
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.
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.
[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.
[23]The AIP also provides for “shared redress”, stating:
7.1It is intended that Ngāti Mutunga o Wharekauri will be a party to a shared redress deed between themselves, the Crown and Moriori.
7.2The Crown owes Ngāti Mutunga o Wharekauri a duty consistent with the principles of the Treaty of Waitangi to negotiate a shared redress deed in good faith.
7.3The Crown intends to continue working with Ngāti Mutunga o Wharekauri and Moriori to give effect to the proposal set out in clauses 7.6 to 7.33.
7.4The parties acknowledge while the Crown is negotiating a shared redress deed in good faith, the Crown is not in breach of this Agreement in Principle if a shared redress deed is not agreed by Ngāti Mutunga o Wharekauri, Moriori and the Crown.
7.5The Crown acknowledges that the transfer of the shared redress properties for any purpose other than as shared redress for
Ngāti Mutunga o Wharekauri and Moriori would be inconsistent with both clauses 7.2 and 7.3, unless alternative arrangements are otherwise agreed by the Crown, Ngāti Mutunga o Wharekauri, and Moriori.
[24] The AIP records the following process for resolving issues with overlapping interests:12
8.2The Crown is ultimately responsible and accountable for the overall overlapping interests process and it must act in accordance with its Treaty obligations. The Crown—
8.2.1has a duty to act in good faith to other claimant groups who have interests in the Ngāti Mutunga o Wharekauri area of interest…; and
8.2.2must ensure it actively protects the interests of other claimant groups (whether already mandated or not) and settled groups; and
8.2.3must avoid unreasonably prejudicing its ability to reach a fair settlement with other claimant groups in the future, while not unduly devaluing the settlement of other settled groups and with Ngāti Mutunga o Wharekauri
8.3Following the signing of this agreement in principle, parties will work together with groups with overlapping interests to resolve any remaining overlapping interests. If after working together overlapping interests issues remain unresolved, the Crown may make a final decision. In reaching any decisions on redress within areas of overlapping interests, the Crown is guided by two general principles:
8.3.1the Crown’s wish to reach a fair and appropriate settlement with Ngāti Mutunga o Wharekauri without compromising the existing settlements of settled groups; and
8.3.2the Crown’s wish to maintain, as far as possible, its capability to provide appropriate redress to other claimant groups and achieve a fair settlement of their historical claims.
…
[25] The AIP records that any deed of settlement will include the contemplated redress “only if any overlapping interests in relation to that redress have been addressed to the satisfaction of the Crown”.13
12 Clause 8.1 of the AIP notes that the development of the AIP has been informed by the overlapping interests process set out in attachment 8 to the AIP.
13 Subclause 3.5.1.
Treaty settlement processes
[26] The Attorney-General has filed an affidavit from Ms Fern Hyett, a Regional Director at Te Arawhiti | the Office for Māori Crown Relations (Te Arawhiti) for the region which includes the Chatham Islands. In her affidavit, Ms Hyett sets out the policy framework within which Treaty settlements are negotiated, drawing on the process guide Ka tika ā muri, ka tika ā mua | Healing the past, building a future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown, more commonly referred to as the “Red Book”.14 She explains that:
10.The Red Book identifies the essential elements of the Treaty settlement process. Although negotiations will be tailored to the circumstances of any particular group, certain milestones are common to almost all negotiation processes, namely, setting terms of negotiation; achieving a deed of mandate; initialling, ratification and signing of a deed of settlement; and, then, the enactment of legislation.
11.These milestones are often achieved through agreeing certain instruments, such as an AIP, or particular text that then contributes to the final agreement, such as formal Crown acknowledgements and apologies. The Red Book explains these milestones, instruments and other standard features of the Treaty process.
[27] Ms Hyett further explains that the redress to be included in a settlement is a key focus of any negotiations and that development of redress options is often highly and closely contested. She notes that redress development is typically organised around different types of redress, such as Crown apology redress, cultural redress, and financial and commercial redress.
[28] The Red Book originally contained a section on overlapping claims or shared interests, where the approach was outlined as follows:15
The Crown can only settle the claims of the group with which it is negotiating, not other groups with overlapping interests. These groups are able to negotiate their own settlements with the Crown. Nor is it intended that the Crown will resolve the question of which claimant group has the predominant interest in a general area. That is a matter that can only be resolved by those groups themselves.
14 Te Tari Whakatau Take a pā ana ki te Tiriti o Waitangi | the Office of Treaty Settlements Ka tika ā muri, ka tika ā mua: He tohutohu whakamārama i ngā whakataunga kerēme e pā ana ki te Tiriti o Waitangi me ngā whakaritenga ki te Karauna | Healing the past, building a future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown (June 2018).
15 At 53. See generally, at 53–55 for the (now replaced) sections relating to overlapping claims or shared interests and exclusive and non-exclusive redress.
[29] This section of the Red Book was removed and replaced with a 2021 policy statement on what is now known as the overlapping interests process. Ms Hyett says this change followed the High Court decisions in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) and (No 5) and discussions with the National Iwi Chairs Forum between 2018 and 2020.16
[30] Although this policy statement was not finalised when the Moriori settlement was being finalised, an overlapping interests process was undertaken and this was reflected in the final settlement reached.
[31]Ms Hyett states, with reference to the Red Book, that:
13. …In an overlapped area, the Crown’s decisions about commercial redress also involve consideration of distributing assets across groups in a way that both contributes to the economic and social development of each group and is fair to each group. That in turn requires consideration of matters including the value of properties, their location, how many groups there are and how many properties are available.
[32] Ms Hyett records that the overlapping interests process in respect of the Ngāti Mutunga o Wharekauri settlement is not yet complete. She says that Te Arawhiti has invited Moriori to engage with the Crown and Ngāti Mutunga o Wharekauri in respect of overlapping interests in the Chatham Islands but Moriori have declined to do so while this proceeding is live.
[33] Ms Hyett says that it is not uncommon for redress in an Agreement in Principle to be altered or removed following the overlapping interests process. Ms Hyett provides an example from the Moriori settlement process, noting that certain properties included in the Moriori Agreement in Principle were removed, with agreement of Moriori, following this process.
[34] Ms Hyett states that the Crown does not consider it can or should adjudicate on matters of tikanga or mana whenua. She describes the Crown’s role as being to
16 Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 [Ngāti Whātua (No 4)]; and Ngāti Whātua Ōrākei Trust v Attorney-General (No 5) [2023] NZHC 74 [Ngāti Whātua (No 5)].
support parties to address these issues themselves. Ms Hyett says that settlements of historical claims do not confer mana or rangatiratanga.
The statement of claim
[35] The statement of claim first sets out the historical context. It states that the actions of the Māori did not accord with tikanga Māori in seeking to acquire mana whenua over the henu (land) by take raupatu (conquest), because the Māori came in a Pākehā ship, armed with muskets, and did not intermarry with Moriori to “crystalise their claim under tikanga through whakapapa and whanaungatanga”.
[36] The statement of claim describes the two groups, Moriori and Māori (including Ngāti Mutunga and Ngāti Tama), as two ‘sovereign nations’ and says that in 1835, their relations were governed by international law, including international customary law, which governed the legality of conquest and the implications of lawful conquest. It says that the invasion of the Chatham Islands was not lawful at international customary law at that time, or as it stands today.
[37] The statement of claim then goes on to say that the Crown’s obligations under Article Two of the Treaty do not require or permit the active protection of a claimant’s unlawful claim to henu, villages or miheke (treasures and other property, including all customary rights of the imi, whether tangible or intangible) which are subject to the tino rangatiratanga of another tribe or people.
[38] The statement of claim accepts that Ngāti Mutunga are rightly recognised as tangata whenua but says that the Crown’s duty of active protection includes the duty “not to transfer ownership or possession of, or any rights in connection with, any of the henu or miheke…to any party other than Moriori, without the consent of Moriori”.
[39] The statement of claim asserts that Moriori continue to hold tino rangatiratanga over all the henu in and miheke in or on the Chatham Islands.
[40] The first cause of action in the statement of claim challenges the Crown’s decision to enter into the AIP with Ngāti Mutunga o Wharekauri on two grounds.17
[41] Under the first ground, Moriori claim that the AIP, as the exercise of prerogative power, is illegal because it is in breach of the Treaty, international law, common law and tikane Moriori. The AIP is said to be in breach of these sources of law because it:
42.2.… manifests an intention to grant NMOW interests and rights in respect of henu in the Rēkohu group, which is subject to the tino rangatiratanga of Moriori, not NMOW.
42.3.… manifests an intention to grant NMOW rights and acknowledgement in respect of henu in the Rēkohu group which will directly undermine the value of the rights and acknowledgement granted to Moriori by the Crown in respect of that henu pursuant to the Act.
…
43.12… manifests an intention to:
(a)Vest in NMOW henu which has been confiscated from Moriori in breach of international law; and
(b)Dilute the value of the existing settlement between the Crown and Moriori which is enshrined in the Act;
which is contrary to the aforementioned obligations at international law.
…
44.1.… manifests an intention to grant NMOW interests and rights in respect of henu in the Rēkohu group on the basis of an unlawful invasion and belligerent occupation.
44.2.At common law, the invasion and occupation of the Rēkohu group by Māori in and after 1835 did not extinguish the pre-existing property rights of Moriori under tikane Moriori, which was the local law.
…
45.2. … manifests an intention to grant NMOW interests and rights in respect of land in the Rēkohu group as a direct result of their violent invasion of Rēkohu in 1835, slaughter and enslavement of the Moriori people. That would be a flagrant and unforgiveable violation of tikane Moriori.
17 The statement of claim describes the decision to enter the AIP with Ngāti Mutunga o Wharekauri as “the reviewable decision”. For convenience in this judgment, I refer to this as the AIP.
[42] Under the second ground, Moriori claim that the AIP fails to consider a mandatory relevant consideration, namely Article Two of “the authentic text of the Treaty in te reo Māori” which guarantees rangatiratanga over their henu, villages and miheke. Moriori claim that in formulating the AIP, the Crown has failed to consider whether the henu, said to have been the subject of the Crown’s breaches of the Treaty in relation to Ngāti Mutunga o Wharekauri, is henu over which Ngāti Mutunga o Wharekauri was lawfully entitled to exercise tino rangatiratanga.
[43] The second cause of action is an application for declaratory judgment, based on the breaches alleged under the first cause of action.
[44] The relief sought by Moriori under the first cause of action is an order setting aside the AIP and declarations in the following terms:
[48(b)] (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 NMOW 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.
[45]Under the second cause of action the same declarations are sought as relief.
The strike out applications
[46] Both the Attorney-General and Ngāti Mutunga o Wharekauri have filed strike out applications.
[47] The Attorney-General’s application for strike out seeks an order striking out the statement of claim to the extent that Moriori seek:
1.1judicial review of the decision to enter into the Ngāti Mutunga o Wharekauri Agreement in Principle and to set aside that decision; and
1.2declarations that it would be unlawful for the Crown to enter into a settlement with Ngāti Mutunga o Wharekauri containing certain redress.
[48] As to the first aspect, the Attorney-General’s application is brought on the grounds that the AIP does not create binding legal relations, the legal rights asserted by Moriori are not affected by the decision to enter the AIP, and the decision as to the nature, form and amount of redress to offer Ngāti Mutunga o Wharekauri in the AIP is quintessentially the result of policy, political and fiscal considerations that are not amenable to judicial review.
[49] As to the second aspect, the Attorney-General says that any settlement with Ngāti Mutunga o Wharekauri will be conditional on legislation and that the declaration sought can only be characterised as an order aimed at preventing the Crown from agreeing on certain redress to be provided pursuant to legislation. Accordingly, the Court does not have jurisdiction to make the declaration sought.
[50] The Attorney-General relies on r 15.1(1)(a) of the High Court Rules 2016 (the Rules) to contend that these parts of the statement of claim disclose no reasonably arguable cause of action. The declaration the Attorney-General objects to specifically is sought in [48(b)(e)] of the statement of claim (and set out above at [44]) (Declaration E).
[51] The Attorney-General does not seek to strike out the other declarations sought by Moriori but says that if her application to strike out is granted, to the extent the other declarations are directed to matters relating to the AIP or a future settlement with Ngāti Mutunga o Wharekauri, they would require repleading as the current pleading of them is inappropriate and inaccurate.
[52] The strike out application by Ngāti Mutunga o Wharekauri goes further. Ngāti Mutunga o Wharekauri seek to strike out the entire statement of claim on the grounds that the decision to enter the AIP is not amenable to judicial review, the causes of action disclose no reasonable cause of action nor a case appropriate to the nature of the pleadings, the proceeding is likely to cause prejudice or delay to the negotiation of the Treaty settlement between Ngāti Mutunga o Wharekauri and the Crown, and the statement of claim is frivolous, vexatious, and an abuse of process. Ngāti Mutunga o Wharekauri relies on r 15(1) of the Rules and the inherent jurisdiction of the Court.
[53] As already mentioned, the Attorney-General has filed an affidavit in support of her application from Ms Hyett. Ngāti Mutunga o Wharekauri have filed three affidavits from Mr McClurg in support of their applications. In support of their opposition to the applications, Moriori have filed an affidavit from Ms Francesca Griggs attaching excerpts from two Waitangi Tribunal decisions and an affidavit from Mr Paul Solomon, a trustee of the Moriori Iwi Settlement Trust (in relation to the Moriori opposition to the application made by Ngāti Mutunga o Wharekauri for security for costs).
Strike out: general principles
[54]Rule 15.1(1) of the Rules provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
[55] Counsel agree that the principles that apply to applications for strike out are well-established:18
18 See Attorney-General v Prince [1998] 1 NZLR 262, (1997) 16 FRNZ 258 (CA), endorsed in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.
(a)the pleaded facts are assumed to be true, except where allegations are entirely speculative and without foundation;
(b)the causes of action must be so clearly untenable that they cannot possibly succeed;
(c)the power to strike out is one to be exercised sparingly;
(d)the fact that an application to strike out raises difficult questions of law requiring extensive argument does not eliminate the possibility of strike out; and
(e)particular care is required in areas where the law is confused or developing.
[56] The threshold that must be met before a proceeding can be struck out is deliberately set high. It is important to preserve access to the courts.
[57] Since the hearing of this matter, the Supreme Court, in its decision in Smith v Fonterra, has endorsed this approach, emphasising the need to preserve access to civil justice.19 A refusal to strike out a claim is not representative of whether or not the claim will ultimately succeed, so a measured approach is required.20 As the Supreme Court went on to say:
[85] Pre-emptive elimination is only appropriate where it can be said that whatever the facts proved, or arguments and policy considerations advanced at trial, a case is bound to fail.
[58] The same approach applies in a judicial review proceeding.21 In the judicial review context, the Court of Appeal in Curtis v Minister of Defence held that there can be no cause of action when an issue is not justiciable, and this justifies strike out.22
19 Smith v Fonterra [2024] NZSC 5, (2024) 25 ELRNZ 607 at [74]–[75] and [84].
20 At [84] citing Couch v Attorney-General, above n 18, at [37] per Elias CJ and Anderson J.
21 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at 63.
22 Curtis v Minister of Defence [2002] 2 NZLR 744 (CA) at [27]–[29].
[59] However, the comments of the courts in Smith v Fonterra focused on r 15.1(1)(a). Ngāti Mutunga o Wharekauri also bring their strike out application on grounds outlined in rr 15.1(1)(b)–(d) and under the Court’s inherent jurisdiction. I therefore briefly outline how those grounds have been interpreted and applied.
[60] The Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd usefully summarised the law as it relates to each of rr 15.1(1)(b)–(d):23
[89] The grounds of strike out listed in r 15.1(1)(b)–(d) concern the misuse of the court's processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court's processes. Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible. In regards to r 15.1(1)(c), a “frivolous” pleading is one which trifles with the court's processes, while a vexatious one contains an element of impropriety. Rule 15.1(1)(d) – “otherwise an abuse of process of the court” – extends beyond the other grounds and captures all other instances of misuse of the court's processes, such as a proceedings that has been brought with an improper motive or are an attempt to obtain a collateral benefit. An important qualification to the grounds of strike out listed in r 15.1(1) is that the jurisdiction to dismiss the proceeding is only used sparingly. The powers of the court must be used properly and for bona fide purposes. If the defect in the pleadings can be cured, then the court would normally order an amendment of the statement of claim.
[61] Rule 15.1(4) provides that the rule does not affect the Court’s inherent jurisdiction. However, unless there are special circumstances, reliance on the inherent jurisdiction is likely to be unnecessary.24
[62]As to the availability of repleading, the Court of Appeal has observed:25
…We must also be mindful of the well established principle that if any deficiencies can be cured by an amendment to the pleadings, allowing the claim to proceed on condition the necessary amendments are made, is preferable to strike out.
23 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679. Footnotes omitted.
24 See CED Distributors (1988) Ltd v Computer Logic Ltd (in rec) (1991) 4 PRNZ 35 (CA) at 41; and Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR15.1.11(2)].
25 Smith v Fonterra [2021] NZCA 552 at [38], citing Marshall Futures Ltd (in liq) v Marshall [1992] 1 NZLR 316 (CA) at 324; and Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [66]. Amendment to a statement of claim is contemplated by r 7.77 of the High Court Rules 2016. See also Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR15.1.08(1)].
Issues to be determined
[63]In determining the applications for strike out, the following issues arise:
(a)is the AIP amenable to judicial review?;
(b)is Declaration E relief which the Court has jurisdiction to grant?;
(c)does the Court have jurisdiction to grant the remaining declarations sought?;
(d)should the statement of claim be struck out as a whole because it is otherwise an abuse of the process of the Court?; and
(e)if some or all of the statement of claim is struck out, should Moriori be given an opportunity to replead their claim?
[64]These issues are intertwined and accordingly I deal with them together.
Preliminary issue
[65] It is convenient to address a preliminary matter which relates to the entitlement of Moriori to rely on the Treaty in the statement of claim.
[66] The statement of claim pleads that Moriori are a separate Polynesian people indigenous to the Rēkohu group and that they are not Māori. Ngāti Mutunga o Wharekauri contend that this pleading of fact must be assumed true in the context of the strike out application. They argue that Moriori cannot then claim the benefit of the provisions or principles of the Treaty and thus a critical foundation for the statement of claim is not established. Moriori disagree, submitting that this argument is inconsistent with the terms of the Treaty (both in English and te reo Māori) as well as with the observations of the Waitangi Tribunal in the Rēkohu Report. They say they are a separate indigenous people of New Zealand, and they have rights under the Treaty. As this issue affects the whole of the submissions made for Ngāti Mutunga o Wharekauri, I deal with it now as a preliminary point.
[67] In the Rēkohu Report, the Waitangi Tribunal not only made the observations I have quoted earlier in [14] but also made findings in relation to the breaches by the Crown of its Treaty obligations to Moriori.26 Although the Tribunal’s findings are not binding on this Court, I am entitled to take them into account. Further, as already discussed, Moriori have reached a settlement with the Crown for historical breaches of the Treaty, reflected in the Moriori Claims Settlement Act, which includes an apology by the Crown for its breaches of the Treaty.
[68] I am therefore satisfied that, for the purpose of determining the strike out applications, Moriori may rely on the terms and principles of the Treaty in their statement of claim. I reach this conclusion having considered the matters covered by Mr McClurg in his third affidavit. I consider that to the extent Ngāti Mutunga o Wharekauri wishes to argue this matter, it should be determined at a substantive hearing and not on a strike out application.
[69] I do not need to comment here on the status of Moriori as Māori. Ngāti Mutunga o Wharekauri contend that there are various implications as a result of the Moriori pleading in this regard, for example they argue Moriori do not have tino rangatiratanga over the Chatham Islands, but this (and other matters) relating to rights and interests in the Chatham Islands are highly contested and again are matters to be left for a substantive hearing.
Position of the parties in relation to strike out
[70] Counsel for the Attorney-General, Mr Ward, submits the decision to enter into the AIP was the result of policy, political, and fiscal considerations and is, therefore, not amenable to judicial review.27 Although not all decisions concerning the Treaty are inappropriate for judicial review, Mr Ward submits a public law decision distinct from the policy choices, political engagement, and compromise that are part of a Treaty negotiation must be identified before judicial review is available. He says the statement of claim does not identify such a decision. Mr Ward accepts that this
26 See for example, Waitangi Tribunal Rēkohu, above n 5, at [171], [176], and [282].
27 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 [Ngāti Whātua SC]; Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056; and Ngāti Mutunga o Wharekauri Iwi Trust v Minister for Treaty of Waitangi Negotiations, above n 6.
proceeding does not impugn an imminent legislative step, but says regardless, the Court should not be drawn into political compact making, such as proposing matters of redress, which are ultimately for Parliament to decide.
[71] Mr Ward says that the statement of claim is an attempt to prevent redress for Ngāti Mutunga o Wharekauri. In effect, it is a challenge to legislate or a challenge to negotiate further. He says this is not tenable as it engages the principle of non- interference. Accordingly, he submits that the Court cannot set aside the AIP or grant Declaration E.
[72] Mr Ward says that, following the guidance from the appellate courts, Moriori may replead the claim, removing reliance on the negotiation process and the AIP and clarifying the rights in relation to which declarations are sought. Mr Ward submits that this is the proper approach to take, as it is not the Court’s role to play a curative part in the policy process.
[73] Counsel for Ngāti Mutunga o Wharekauri, Mr Castle, similarly submits that the decision to enter into the AIP and any future determination of redress for Ngāti Mutunga o Wharekauri are not amenable to judicial review. He emphasises that the statement of claim seeks to interfere with the ongoing negotiation of redress for Ngāti Mutunga o Wharekauri.
[74] Mr Castle further says that the breaches alleged by Moriori that underpin all the declarations sought are so inextricably linked to the Treaty claims settlement process that the proceeding must be struck out. He says this outcome is appropriate given that guidance from the appellate courts was available to Moriori, but they have ignored it in pleading their claim. Mr Castle submits that the nature and extent of Moriori rights under the Treaty and the redress for their breach are fully and finally settled in the Moriori Claims Settlement Act and it is not open to the Court to revisit this as sought in the declarations. All that is left now is for Ngāti Mutunga o Wharekauri to complete the negotiation of its settlement with the Crown, which will include addressing the overlapping interests between Ngāti Mutunga o Wharekauri and Moriori. He says that this process could not include addressing the rights
contended for in the declarations sought by Moriori in [48(b)(a)–(d)] of the statement of claim.
[75] Counsel for Moriori, Mr Griggs, submits the decision to enter into the AIP is amenable to judicial review as it imposes binding legal obligations on the Crown and is the exercise of a prerogative power. He says the AIP is a decision in principle to enter into a binding Deed of Settlement on the same terms. Mr Griggs submits that the terms of the AIP indicate an intention to make acknowledgements and vest land and miheke in Ngāti Mutunga o Wharekauri in breach of tikane Moriori, the Treaty, international law and common law. He says that any Agreement in Principle may only be entered into to the extent it is consistent with these sources of law, irrespective of policy, political or fiscal considerations.
Discussion—strike out applications
[76] As the cases relied upon by all parties in these proceedings show, the Treaty settlement process can present challenges in the context of judicial review, but it does not prevent a court from performing its function altogether. In Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) (Ngāti Whātua (No 4)) Palmer J stated:28
[62] … I start by considering submissions about three parameters of the Court's jurisdiction in relation to the declarations Ngāti Whātua Ōrākei seek about the legal obligations of the Crown in relation to tikanga. First, I find that the complex multi-faceted nature of Treaty settlements does not necessarily cloak government decisions from the constitutional process of judicial review for unlawfulness or from declarations of legal right but bears on what relief should be granted. Second, I do not transgress the Supreme Court's finding, that Ngāti Whātua Ōrākei cannot challenge the decisions to legislate to transfer particular properties. Third, I consider that the Court has jurisdiction, probably confined to determining issues of law, to correct errors of law in Crown guidance and to correct manifestly unreasonable decisions to issue guidance. I note that individual examples of the application of a policy are not the policy itself.
[77] As implied in the findings of Palmer J, and expressed in the submissions for the parties, judicial review of steps in the Treaty settlement process may engage the principle of non-interference. Justice Cooke in Griggs v Attorney-General expressed the tension raised by this principle in the following terms:29
28 Ngāti Whātua (No 4), above n 16.
29 Griggs v Attorney-General [2021] NZHC 2913. Footnotes omitted.
[14] 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.
[78] The Supreme Court decision in Ngāti Whātua Ōrākei Trust v Attorney-General (Ngāti Whātua) was significant in the evolution of the application of the non- interference principle, especially as it related to the Treaty.30 After canvassing previous authorities on the principle, the majority in the Supreme Court went on to say:
[46] From the cases to date, there remain questions about the exact scope, qualifications and basis of the principle of non-interference in parliamentary proceedings. As will become apparent, it is not necessary in the present case to resolve the exact metes and bounds of the principle. 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…
(footnote omitted)
[79] Because part of Ngāti Whātua Ōrākei Trust’s claim, although framed broadly, could only be characterised as “a challenge to the decision which has been made to legislate to transfer the relevant properties”, the Supreme Court agreed that two parts of the claim should be struck out.31 However, the rest of the claim concerned the status of Ngāti Whātua Ōrākei in the area in which it claimed rights and the obligations of the Crown in the process of settling the claims including the application of the overlapping claims policy. The Supreme Court, although directing a repleading, said these parts of the claim should be permitted to proceed.32
30 Ngāti Whātua SC, above n 27.
31 At [65]–[66].
32 At [59] and [66].
[80] The application of the principle of non-interference has been developed further since the Supreme Court’s decision in Ngāti Whātua. In Ngāti Mutunga o Wharekauri Asset Holding Company Ltd v Attorney-General, the Court of Appeal expanded on the views expressed by the Supreme Court in Ngāti Whātua.33 The claim in Ngāti Mutunga o Wharekauri Asset Holding Company Ltd v Attorney-General concerned the Kermadec Ocean Sanctuary Bill, which the plaintiffs argued would effectively confiscate its fishery settlement entitlements in a quota management area. The Court of Appeal held that the claim, and the repleading that was filed in the hearing, were too closely tied to the legislation and therefore could not proceed. On the principle of non-interference, the Court of Appeal noted:
[27] The simple point is, courts may declare rights, and these may relate to the rights-consistency of government action, and even proposed government action. But they may not relate to the rights-consistency of proposed legislation. For example, a government proposal to exercise an existing lawful power in a particular way may be the subject of court declarations. The difficult area is where the proposed government action is really a proposal to legislate. In principle, declaratory proceedings of this nature are simply not permitted. The point at which a government proposal crystallises into what is in substance a proposal to legislate may be a matter for debate. But it is not one that needs to be resolved in this case.
[81] The arguments raised by Moriori in this proceeding clearly engage with the last point raised in the above quotation—the point at which a proposal (here, the AIP) crystallises into a proposal to legislate.
[82] The Supreme Court further considered the principle of non-interference in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd, which concerned the Waitangi Tribunal’s resumption jurisdiction under the Treaty of Waitangi Act 1975.34 The land subject to the resumption application was, however, included in a settlement Bill introduced to the House by the time the appeal reached the Supreme Court. Mercury submitted that the application for leave to appeal directly to the Supreme Court demonstrated that the proceeding was, in substance, an attempt to interfere with proceedings of Parliament. The Supreme Court disagreed, relying on Elias CJ’s comments in Ngāti Whātua, in the minority, that “[u]ntil Parliament changes the law,
33 Ngāti Mutunga o Wharekauri Asset Holding Company Ltd v Attorney-General [2020] NZCA 2, [2020] 3 NZLR 1.
34 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767.
the courts must be open to citizens who seek to have their existing legal interests and rights determined”.35 The Supreme Court also drew on the comments of the Court of Appeal in Ngāti Mutunga o Wharekauri Asset Holding Company Ltd v Attorney- General, noting that the appeal did not put the claims settlement Bill in issue, but rather raised orthodox claims of statutory and other rights.36
[83] More recently, this Court in Hata v Attorney-General (No 2) discussed the limits of the principle of non-interference, emphasising that the dividing line involves “important issues concerning the separation of powers”.37 Justice Cooke said:
[33] Against that background it seems to me that the important point is not so much what the party pleads in its statement of claim, but more what the court does by way of its determinations, and the relief that it grants. In the present case the applicants say that their legal rights have been interfered with. They say that nobody has the authority to reach agreements on their behalf. They say that this conflicts with tikanga. They are entitled to bring that claim to the Court. The fact that that claim is brought in the context of a Treaty settlement procedure does not exclude the Court's jurisdiction. Neither does the fact that the agreement in question is likely to be given effect by proposed legislation eliminate the existence of the legal issue. The legal issue preceded the existence of the Bill, and exists entirely independently of it. But what the Court cannot do when addressing these claims is reach any decisions, or make any orders that purport to prevent, or otherwise interfere with the legislative process.
[34] The fact that parliament chooses to legislate in a manner that may change, or otherwise affect legal rights is a matter entirely for parliament. The courts will not interfere with it so exercising its legislative functions. And if legislation is passed the court has no role in overturning it, although it could have jurisdiction to grant a declaration of inconsistency once legislation is enacted if that is appropriate. But equally the fact that parliament chooses to address such matters should not exclude the right of access to the court that a party has to have its existing legal rights determined. In this way the respective constitutional functions of the court and parliament are maintained, and the rule of law is upheld. I consider this to be a clearer dividing line that accords with principle. Inviting the claimant to introduce ambiguity into its pleading may not be the most appropriate technique to ensure fundamental constitutional principle is observed. As the development of the declarations of inconsistency framework demonstrates a clearer identification of the respective constitutional roles is to be preferred, and is more likely to lead to the proper respect for each branch of government.
(footnotes omitted)
35 At [46] citing Ngāti Whātu SC, above n 27, at [119].
36 At [47] citing Ngāti Mutunga o Wharekauri Asset Holding Company Ltd v Attorney-General, above n 33, at [33]–[35].
37 Hata v Attorney-General [2023] NZHC 2919 at [30].
[84] In light of these authorities, the Crown and Ngāti Mutunga o Wharekauri say that Moriori are attempting to interfere with, or even prevent, the provision of redress to Ngāti Mutunga o Wharekauri. They say that while in this case the proceeding does not impugn an imminent legislative step, nonetheless, matters of redress are for Parliament alone.
[85] Moriori do not accept that they are attempting to stop Ngāti Mutunga o Wharekauri reaching an agreement over their Treaty claim. Rather, they submit that the interests of Moriori are affected by the AIP, as it shows an intention to make acknowledgements contrary to the customary rights and authority of Moriori in the Chatham Islands and to vest in Ngāti Mutunga o Wharekauri rights and interests in land and miheke within the Chatham Islands. They say it is further in breach of the Treaty, tikane Moriori, common law and international law. Mr Griggs submits that the Crown may only enter in an Agreement in Principle that is consistent with these matters—notwithstanding any fiscal, policy, and political considerations— otherwise the value of the settlement between Moriori and the Crown as recorded in the Moriori Claims Settlement Act will be diluted. Mr Griggs also says that the Moriori claim does not seek to prevent the Crown from entering into an agreement with Ngāti Mutunga o Wharekauri at all, it is just that as it stands, the AIP is unlawful. He says that the Crown just needs to “have another go” and suggests that it should do that with the benefit of declarations from this Court as to the limits of what can be agreed.
[86] Mr Griggs argues that this is not really an overlapping interests case, as the Crown’s policy in this regard does not fit the circumstances of the particular historical situation. Instead, Mr Griggs identifies the underlying issue as Moriori disputing that Ngāti Mutunga o Wharekauri conquered Moriori and that take raupatu applied, with a consequent transfer of tino rangatiratanga from Moriori to Ngāti Mutunga o Wharekauri. He says that this requires the determination of customary ownership of the Chatham Islands under Article Two of the Treaty, and this is the purpose of seeking the declarations in [48(b)(a)–(d)] of the statement of claim. Mr Griggs acknowledges that Moriori have agreed to shared redress as provided for in the Moriori Claims Settlement Act and says they will comply with that. But he says that the Crown cannot give away land or things over which Moriori have tino rangatiratanga unless Moriori consent.
[87] Mr Griggs says that the real dividing line in the principle of non-interference is whether there are legal questions the Court needs to decide and whether there are political questions for Parliament.38 Mr Griggs says the Moriori claim falls into the former category.
[88] The question then, is to delineate what matters raised by Moriori can be determined by the Court and what must be left for Parliament, in the particular circumstances before me. While I acknowledge that there are matters that Moriori may have determined by the Court, I consider that there are aspects of the statement of claim which cannot remain.
[89] I start by addressing Declaration E because I consider that it plainly must be struck out. The decision to transfer property under a Treaty settlement is given effect through the legislative process. It is, as all the decisions discussed above have recognised, a matter for Parliament. It is not this Court’s role to interfere with that function. Although, as pleaded, Declaration E is addressed against the Crown, it can only be properly characterised as a declaration that would prevent legislation transferring properties and interests to Ngāti Mutunga o Wharekauri in the Chatham Islands. The Court cannot dictate what Parliament can and cannot legislate.
[90] Although I agree with Mr Griggs that the principle of non-interference has been developed further beyond the decision of the Supreme Court in Ngāti Whātua, I do not consider the principle as articulated in Ngāti Whātua has changed in such a way as to permit Declaration E to be able to proceed. It has considerable similarity to the declarations the Supreme Court considered must be struck out in Ngāti Whātua. As Cooke J emphasised in Hata, which is a case Mr Griggs sought to rely on, parties can have their rights determined by this Court, but they cannot ask the Court to interfere with the legislative function.
[91] Accordingly, I agree with the Attorney-General and Ngāti Mutunga o Wharekauri that Declaration E is untenable and has no chance of success. It should be struck out.
38 Hata v Attorney-General, above n 37, at [30].
[92] The application of the principle of non-interference, however, is more nuanced when it comes to the Crown’s decision to enter into the AIP with Ngāti Mutunga o Wharekauri. As Mr Griggs stressed, and the Attorney-General and Ngāti Mutunga o Wharekauri accept, reviewing the decision to enter the AIP would not directly impugn the legislative process in the same way as occurred in the other cases mentioned above. Mr Griggs submits that challenging the AIP is not interfering with the proceedings of Parliament. He says if it is too early to challenge a Treaty settlement when an Agreement in Principle is entered into but too late to challenge a Treaty settlement by the time a Deed of Settlement is entered into, there is no opportunity to challenge what arises within the settlement process.
[93] It is useful, in line with the approach taken by Cooke J in Hata, to consider whether the principle of non-interference is engaged or not by looking at the relief sought by Moriori in respect of the AIP. Moriori seek an order that the AIP be set aside. They then ask the Court to make several declarations which, at the hearing, Mr Griggs said would provide guidance to the Crown “about the limits of what it can agree to in a settlement with Ngāti Mutunga o Wharekauri”. It is the “guidance” sought that raises an issue of non-interference. Although this Court can determine the rights of Moriori in respect of its area of interest, the Chatham Islands, the Court cannot set aside an Agreement in Principle because of what it says about redress. As with Declaration E, as discussed above, by involving itself in the redress element of the AIP, which is in essence what Moriori are seeking, the Court would be interfering in the legislative process—as it would be dictating what could or could not go before Parliament.
[94] Mr Griggs submits that the decision of the Supreme Court in Wairarapa Moana Ki Pouākani Inc allows this Court to inquire into the essence of the AIP because it does not matter that it may be subject to legislation at some point in the future. Although the Court in that case did note that when it came to determining rights it did not matter whether there was a Bill before the House or whether there is proposed legislation, this did not necessarily allow the Court to inquire into matters that were directly included in the Bill to prevent certain elements being legislated. The questions raised on appeal did not put the settlement Bill directly at issue. Rather, the questions on appeal concerned the powers of the Waitangi Tribunal under its resumption
jurisdiction, as well as the considerations to be taken into account under that jurisdiction and how tikanga may impact on statutory rights.
[95] The claim made by Moriori in this proceeding is considerably different. It asks the Court to dictate the bounds of what could be negotiated by the Crown and thus be included in any future Deed of Settlement with Ngāti Mutunga o Wharekauri. This does not respect the policy choices, political engagement and compromise inherent in a Treaty settlement, nor that such settlements are ultimately for Parliament to approve.
[96] I accept Mr Ward’s submission that it is not the Court’s role to play a “curative” role in the policy process. Rather it is for Moriori to identify the public law decision being challenged and on what grounds it may be challenged. This latter point also goes to the related challenge that is made in respect to the claim for judicial review— that the decision to enter into the AIP is not a distinct public law decision amenable to judicial review. Mr Ward says the AIP records a particular point in time in ongoing negotiations. The AIP does not create legal relations or determine rights, is entered into on a without prejudice basis and is a non-binding agreement.39 Accordingly, Mr Ward submits the decision is not amenable to review. Mr Castle agrees, adding that the essence of the claim for judicial review bears upon the redress, which is a political question for Parliament to consider.
[97] Mr Griggs argues that the decision to enter into the AIP reflects a proposed exercise of a prerogative power and is therefore amenable to review by reference to s 4 of the Judicial Review Procedure Act 2016 (which contemplates the exercise of a proposed statutory power). He relies on Burt v Governor-General to advance this argument.40 However, the point made in Burt is that the Crown cannot argue that just because a matter involves a prerogative power there cannot be review. It is not the source of the power that makes a matter not amenable to review, rather it is the subject matter. In Burt, the Court was required to consider whether the prerogative of mercy is subject matter amenable to review.
39 Mr Griggs submits that the AIP imposes binding legal obligations (which can be seen in ss 165K, 165L and 165N of the Resource Management Act 1991) but I do not accept that these provisions assist his argument. For example, although s 165K refers to the obligations under an Agreement in Principle, the provision is best seen as engaging the Crown’s obligations under the Treaty to protect potential redress.
40 Burt v Attorney-General [1992] 3 NZLR 672 (CA).
[98] Mr Griggs also relies on Sanford v Chief Executive of the Ministry of Fisheries to contend that the AIP is amenable to review. This case concerned the Chief Executive’s preliminary decision to grant marine farming and spat catching permits.41 There was a decision in 2006 but because of litigation in respect of related permits under the Resource Management Act 1991 (RMA), the Chief Executive said that the permits could only be issued after the appeal had been determined. The permits were granted in 2008 and there was a change between the final conditions in those permits and those outlined in the 2006 decision. This Court held that the 2006 decision was reviewable, despite Sanford arguing that because it was a decision in principle it could not be judicially reviewed.42 The Court held that the 2006 decision was a proposed exercise of a statutory power and that challenging it would not be “putting the cart before the horse”. 43
[99] As Mr Ward submits, however, the context in Sanford involved a statutory decision and can be distinguished from the situation here of negotiation of a Treaty settlement. Unlike the decision in Sanford, the AIP is likely to be substantially reviewed because of the overlapping interests matters which are set out within the AIP. The Waitangi Tribunal jurisprudence Mr Griggs points to, about the likely lack of difference between an Agreement in Principle and a Deed of Settlement, does not have as much strength here because of the new overlapping interests policy which has since been introduced and the effects this is likely to have on settlement—as it had on the settlement of the Moriori claim.44 In Sanford, the 2006 decision was contingent only on whether the permits were being granted under the RMA. There was no indication that the Chief Executive was going to substantively review the decision following the preliminary decision. This is quite different to an Agreement in Principle which is, by its very nature, made to begin a process of negotiation. Accordingly, I do not consider the decision to enter into the AIP is a distinct public law decision amenable to judicial review.
41 Sanford Ltd v Chief Executive of the Ministry of Fisheries [2009] ELHNZ 393 (HC).
42 At [108].
43 At [112].
44 See Te Ropū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Tāmaki Makarau Settlement Process Report (Wai 1362, 2007) at 95.
[100] This does not mean, however, that decisions in respect of an Agreement in Principle could not be judicially reviewed in any circumstances. As Palmer J noted in Ngāti Whātua (No 4), applications of policy are not policy themselves and this Court could correct errors of law in Crown guidance or unreasonableness in respect of Crown guidance. For example, the Court could, as it did in Ngāti Whātua (No 4), make comments on the application of an overlapping interests policy in respect of rights at tikanga. And Williams J, in Port Nicholson Settlement Trust v Attorney-General, held that declarations about the consistency of two Deeds of Settlement did not attempt to intervene in the legislative process.45 It is not necessary for the purposes of this application to discuss, to use the Supreme Court’s turn of phrase, “the exact metes and bounds” of this.
[101] The Attorney-General accepts that it is open to Moriori to plead existing legal and customary rights and a cause of action that is focused on those rights. Mr Ward says, however, that in doing this, Moriori must not attack the process of the negotiation of the Treaty settlement between the Crown and Ngāti Mutunga o Wharekauri. For this reason, Mr Ward says that repleading will be required.
[102] Mr Castle does not agree with the Attorney-General on this point. Mr Castle submits that the nature and extent of Moriori rights under the Treaty and the redress for their breach are fully and finally settled in the Moriori Claims Settlement Act and this Court cannot revisit such questions. He says that if Moriori are now disenchanted with what they secured in their settlement, including any constraints they wished to see in the settlement between the Crown and Ngāti Mutunga o Wharekauri, it is too late to raise this. All that Mr Castle says can remain is that Moriori may participate in an overlapping interests process in relation to the Ngāti Mutunga o Wharekauri settlement.
[103] I do not accept that the existence of a Treaty settlement necessarily means that such differences as to customary interests and rights are settled and cannot come before the Court. There are several difficulties with this approach. I acknowledge that the terms of any Deed of Settlement and the terms of the settlement legislation will be
45 Port Nicholson Block Settlement Trust v Attorney-General [2012] NZHC 3181 at [60]–[61].
relevant.46 As submitted by Mr Ward, it will not generally be the case that customary rights and interests are determined in a settlement As he emphasises, Treaty settlements settle claims with the Crown through compromise. They do not generally confer or extinguish customary interests, nor do they create mana whenua or tino rangatiratanga. Treaty settlements settle historical claims made against the Crown; not matters between groups. Here, for example, it cannot be said that the Moriori settlement determined customary rights as against Ngāti Mutunga o Wharekauri. I accept that shared redress with Ngāti Mutunga o Wharekauri is contemplated in the Moriori settlement and the AIP, but any resolution of shared redress is inevitably a matter of compromise. Issues as to customary rights and interests are matters on which it is at least conceivable that there is a “right” answer. Access to the courts by a party to have its existing rights and interests determined must be preserved as the authorities discussed earlier make clear.
[104] Mr Castle also submits that the heart of the Moriori claim is its attempt to set aside the AIP and that this permeates both causes of action to make them untenable such that the Court can be certain neither will succeed. He says the declarations sought are so intertwined with the Treaty settlement process that none of them can survive the strike out application and that it would be artificial to allow Moriori to replead.
[105] In advancing these arguments, Mr Castle relies on a broad approach to the separate considerations identified in r 15(1) of the Rules together with the inherent jurisdiction of the Court. Mr Castle also says that the Moriori claim will prejudice or delay the negotiation with the Crown of a settlement of the Ngāti Mutunga o Wharekauri claim—although whether this is the case is unclear from Mr McClurg’s evidence, who has deposed both that he has received assurances that negotiations will continue unaffected by this proceeding, and that the negotiations may be affected by this proceeding.
[106] Mr Castle says that the commencement of this proceeding by Moriori is an attempt to stop Ngāti Mutunga o Wharekauri reaching a Treaty settlement. He argues
46 For example, see s 15 of the Moriori Claims Settlement Act 2021 which excludes the Court’s jurisdiction except in respect of the interpretation or implementation of the deed of settlement or the Act.
that attempting to stop the settlement, without any prior discussion with Ngāti Mutunga o Wharekauri including as to overlapping interests, is contrary to tikane Moriori and tikanga Māori and that this, as a matter of principle, favours striking out the proceeding and not allowing any opportunity to replead.
[107] As indicated above, I am not satisfied that the statement of claim must be struck out as being entirely flawed. I consider it is capable of amendment. I have already acknowledged that Moriori may come to the courts to seek determination of the nature of rights they say they hold. A properly pleaded claim of this kind will not breach the principle of non-interference. Many of the matters raised by Mr Castle should be considered at a substantive hearing. The disputes between Moriori and Ngāti Mutunga o Wharekauri are profound and in particular, issues of tikane Moriori and tikanga Māori will require proper consideration with the benefit of expert evidence.
[108] I consider the appropriate approach is to give Moriori an opportunity to replead. Moriori may seek determination of their rights and interests so long as the pleading does not breach the principle of non-interference, which in this matter means ensuring the pleading does not rely on the political compact-making between the Crown and Ngāti Mutunga o Wharekauri that I have concluded is not amenable to judicial review.
[109] Mr Griggs raised for the first time at the hearing that it is implicit in the pleadings that, in terms of common law property rights, the Crown is holding land on the Chatham Islands as a constructive trustee for Moriori. If this claim is to be pursued it should be expressly pleaded. I record that Mr Ward submits that such a claim does not fit easily in a public law claim and may require a separate proceeding.
[110]In summary, my conclusions in relation to the strike out applications are:
(a)The relief sought in Declaration E must be struck out as it is in breach of the principle of non-interference;
(b)The relief sought to set aside the AIP must be struck out as it is in breach of the principle of non-interference;
(c)The claim for judicial review must be struck out as there is no decision identified which is amenable to judicial review.
[111] The remaining claims must be repleaded by Moriori. To the extent that Moriori require leave to file an amended statement of claim, leave should be granted.
Applications for further initial disclosure, further particulars, and security for costs
[112] In the event that the Moriori claim was not struck out in its totality, Ngāti Mutunga o Wharekauri also seek orders for:
(a)further initial discovery;
(b)further particulars; and
(c)security for costs.
[113]Each of these orders are opposed by Moriori.
[114] It is premature to address the applications for further initial discovery and further particulars until the claim is repleaded. Any such applications will require reformulation once that occurs. Accordingly, I decline those applications.
[115] Ngāti Mutunga o Wharekauri seek an order for security for costs on the basis that Moriori has brought the claim as individuals (albeit as trustees of the Moriori Settlement Trust) against the trustees of Ngāti Mutunga o Wharekauri as individuals. Mr Castle says Ngāti Mutunga o Wharekauri apprehends that there is reason to believe the individual trustees of the Moriori Settlement Trust will be unable to pay its costs if they are unsuccessful.
[116] Mr Griggs submits that the individuals named as trustees of the Moriori Settlement Trust are bringing the claim in the present proceeding. He says a trust, other than an incorporated entity is not a legal entity distinct from its trustees, and the trustees are entitled to be indemnified from trust property when acting reasonably on behalf of the trust. Mr Griggs says that it is a matter of public record that the Moriori
Trust has received approximately $18 million from the Crown and refers to the affidavit of Mr Solomon which addresses the detail of this. Mr Griggs submits that Ngāti Mutunga o Wharekauri have not therefore established that there is reason to believe that if Moriori are successful, they will not be able to pay the costs of Ngāti Mutunga o Wharekauri.
[117] At the hearing, Mr Castle acknowledged Mr Grigg’s submissions but recorded the concern of Ngāti Mutunga o Wharekauri that such financial redress was being used to bring a claim of the nature set out in this proceeding. Although not withdrawing the application for security for costs, Mr Castle accepts that, leaving this concern aside, the threshold for an order under r 5.45(1)(b) of the Rules is not met.
[118] In the circumstances, I am not satisfied that Moriori will be unable to pay the costs of Ngāti Mutunga o Wharekauri if Moriori are unsuccessful in their claim. Accordingly, I decline to grant an order requiring Moriori to give security for costs.
Result
[119] The application for strike out by the Attorney-General is granted. The application for strike out by Ngāti Mutunga o Wharekauri is granted in part.
[120] The claim for judicial review is struck to the extent that it does not identify a decision amenable to judicial review. In addition, the following specific paragraphs of the statement of claim are struck out:
(a)[48(a)] (seeking an order to set aside the AIP); and
(b)[48(b)(e)] (seeking a declaration that it would be unlawful for the Crown to enter into a settlement with Ngāti Mutunga o Wharekauri 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).
[121] Leave is granted to Moriori to file an amended statement of claim in relation to the balance of its claims.
[122]I make the following timetable directions:
(a)Moriori are to file an amended statement of claim within 20 working days from the date of this judgment;
(b)the Attorney-General and Ngāti Mutunga o Wharekauri are to file statements of defence and/or any interlocutory applications within a further 20 working days; and
(c)the matter is to be placed for call in the Judge’s Chambers List at the first convenient date following a further 20 working days.
[123] The applications by Ngāti Mutunga o Wharekauri for further initial discovery, further particulars and security for costs are declined.
Costs
[124] Costs should follow the event. If the parties are unable to agree costs, memoranda of no more than five pages together with a schedule may be filed within 20 working days of the date of this judgment, I will determine costs on the papers.
McQueen J
Solicitors:
Bennion Law, Wellington for Plaintiffs/Respondents Crown Law, Wellington for First Defendant/First Applicant
Chris Ritchie Law, Wellington for Second Defendants/Second Applicants
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