Tau v Attorney-General

[2024] NZHC 1741

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-534

[2024] NZHC 1741

BETWEEN

RAWIRI TE MAIRE TAU ET ORS

First Plaintiffs

AND

TE RŪNANGA O NGĀI TAHU

Second Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

AND

THE TRUSTEES OF THE TĀTAU TĀTAU O TE WAIROA TRUST

Proposed Intervenor

Hearing:

12 June 2024

Appearances:

(Hon) CF Finlayson KC, JWJ Graham and XY Lau for the Plaintiffs

MG Colson KC and JB Watson for the Defendant
MK Mahuika and TL Thoms for Tātau Tātau o Te Wairoa Trust

Judgment:

27 June 2024

JUDGMENT OF HARLAND J

(Application for Intervention by Tātau Tātau o Te Wairoa Trust)

Introduction

[1]                  The trustees of the Tātau Tātau o Te Wairoa Trust (the Trust) have applied to join this proceeding as an interested party on specific terms. The plaintiffs support the application. While initially opposing the application, by the time of the hearing, the defendant did not oppose the application being granted but sought to limit the amount of evidence the applicants wish to present to the Court.

TAU v ATTORNEY-GENERAL [2024] NZHC 1741 [27 June 2024]

[2]I have decided to grant the application on the conditions that appear in para

[26] below. This judgment sets out my reasons for doing so.

Background

[3]                 The plaintiffs proceeding comprises an application for four declarations sought under the Court’s inherent jurisdiction. In their amended statement of claim dated 7 September 2021, the plaintiffs advance two causes of action, namely that:

(a)        Ngāi Tahu has pūtaki-mauka/rangatiratanga entitlements over wai māori in its takiwā; and

(b)       the Crown has a relational duty of good faith to Ngāi Tahu to work in cooperation and partnership to design and implement a regime for the regulation, governance and allocation of wai māori that recognises, safeguards and accommodates the rights and interest of Ngāi Tahu in wai māori in its takiwā.

[4]                 The defendant has filed a statement of defence which includes five affirmative defences. Mr Finlayson KC, for the plaintiffs, submitted that the defendant’s statement of defence has put in issue and therefore requires the plaintiffs to prove what rangatiratanga is and what it means. As the concept of rangatiratanga is at the core of the plaintiffs’ case, Mr Finlayson submitted this engages the need for evidence about tikanga as a high level concept as well as evidence of tikanga as it specifically concerns and relates to the plaintiffs entitlements, rights and interests over wai māori in its takiwā.

[5]The affirmative defences raised by the defendant include that:

(a)        legislation has been enacted which has given the Crown the right to control and use freshwater;

(b)       some or all of the rights asserted, if they exist, have been modified, suspended or extinguished as they relate to water;

(c)        the claims in this proceeding are, in substance, the same as claims settled pursuant to the Ngāi Tahu Deed of Settlement;

(d)       Ngāi Tahu is estopped from seeking a different response to the claims in the Deed of Settlement that are the same as those made in these proceedings; and

(e)        the Court should not intervene in or seek to constrain the Crown in relation to the development and introduction of legislation and/or how the Crown makes policy and allocates resources.

[6]The plaintiffs have filed a reply to the affirmative defence.

[7]                 It is common ground that the issues raised in this proceeding are of general and wide importance and engage:

(a)        broad questions of law relevant to the Crown’s obligations as a treaty partner, in both pre and post settlement contexts;

(b)       the nature and general applicability of principles of tikanga Māori; and

(c)        decisions made in the special context of freshwater, the Treaty of Waitangi and Māori interests in freshwater.

The application for intervention

[8]                 The applicants are the trustees of the Trust. The Trust is the post-settlement governance entity for the iwi and hapū of Te Rohe o Te Wairoa in accordance with the iwi and hapū of Te Rohe o Te Wairoa Claims Settlement Act 2018. In its role as post- settlement governance entity, the Trust has a broad representative function on behalf of the iwi and hapū of Te Rohe o Te Wairoa.

[9]                 The application was accompanied by an affidavit of Leon Symes, the chairperson of the Trust, which provided details about why the ability to intervene in this proceeding is important to it.

[10]             The applicants contend that the Court’s determination of this proceeding will directly affect their rights and interests because they are also affected by the Crown’s regulation, governance and allocation of freshwater in Te Rohe o Te Wairoa and their relationship to existing legal rights informed by tikanga, rangatiratanga and the mana motuhake of the iwi and hapū of Te Rohe o Te Wairoa.

[11]             The applicants have filed a statement of claim (CIV-2023-485-756) seeking declarations in relation to their rights and interests in freshwater for the rivers, lakes and their tributaries in Te Rohe o Te Wairoa. These proceedings are in their infancy, having not yet received a date for a first case management conference. However, the applicants submit that the declarations and determinations in this proceeding will have a material effect on their own claim as the outcome of this proceeding will have a substantive effect on the law and the grounds pleaded by the Trust in its proceeding and will inevitably inform the Crown’s approach to the potential recognition of their rights and interests.

[12]             The applicants seek leave to file four affidavits and written submissions, each not exceeding 20 pages in this proceeding. They seek leave for their counsel to attend the hearing in person and to present oral submissions.

[13]             The plaintiffs support the application and the scope of the applicant’s proposed interest.

[14]             As outlined above, the Crown no longer opposes the Trust’s involvement in the proceeding, but it submits that the evidence filed on behalf of the Trust should only comprise one affidavit not exceeding 20 pages.

Discussion

[15]             As the legal basis for intervention was not challenged, I need only refer to it briefly as the principles relating to intervention are well established.1

[16]             In the context of this case, I am satisfied that the Court’s decision in this proceeding will very likely directly affect the rights and interests of the hapū and iwi the applicants represent because they too are affected by the Crown’s regulation, governance and allocation of wai māori.

1      Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 183 at [11] by analogy; and Borrowdale v Director-General of Health (applications to intervene) [2020] NZHC 1379, [2020] 2 NZLR 927 at [20]; Seales v Attorney-General [2015] NZHC 828 at [44]-[48]; Capital and Merchant Finance Ltd (in rec and liq) v Perpetual Trust Ltd [2014] NZHC 3205, [2015] NZAR 228 at [41].

[17]             As well, given that the proceeding raises questions of public interest and it is likely to have a precedent effect, I am satisfied it is in the interests of justice for the Court to be informed by a range of perspectives and factual circumstances.2 In this regard, I note that Federated Farmers of New Zealand and the Environmental Defence Society Inc have been permitted to intervene in this proceeding.3

[18]             I accept that the applicant’s perspective will assist the Court to provide a broad overview of the circumstances of hapū and iwi in relation to wai māori. As well, the tikanga considerations that also may be relevant to the nature and extent of such interests will enable the Court to be aware of the broader tikanga landscape.

[19]             Although not contested, for the reasons I outline above, I have separately formed the view that the intervention of the applicants in this case is justified.

[20]             The degree of participation by an intervenor should be limited to that which is required as a minimum to protect the intervenor’s interests and to ensure they are fairly represented.4

[21]             In this regard, it cannot be assumed that the circumstances of the Hapū and Iwi represented by the applicants are the same as the circumstances of Ngāi Tahu including in relation to tikanga considerations. I accept this means that Ngāi Tahu cannot protect or articulate the interests of the applicants. This can only be done by the Hapū and Iwi the applicants represent.

[22]             Mr Mahuika advised that the affidavits proposed to be presented by the applicants to the Court have been provided to the Crown. He explained that one affidavit is intended to provide evidence of broader tikanga principles and three will address specific issues relevant to the Te Rohe o Te Wairoa in relation to Lake Whakakī, the Wairoa River and inland water bodies. He outlined that the affidavits will comprise no more than 20 pages and, although some may contain annexures, they will not be substantial.

2      Ngāti Whātua Ōrākei Trust v Attorney-General, above n 2, at [17]-[19].

3      Tau & Others v Attorney-General [2021] NZHC 3122.

4      McClintock v Attorney-General [2015] NZHC 1280 at [44](f) and (g).

[23]             Mr Colson KC’s submission appeared to be that only the broader affidavit would be relevant, however, this point was not developed significantly nor was any real justification advanced as to why the particular examples proposed to be covered in the three more specific affidavits were not relevant to the broader question the Court is being asked to address.

[24]             Mr Mahuika considers that the applicant’s evidence and submissions would, at most, take three days of the allocated hearing time. The plaintiffs do not consider this will unduly extend the hearing and can easily be accommodated within the hearing time allocated. Mr Colson was less sure about this but accepted that any such concerns can be addressed once the proposed evidence had been exchanged.

[25]             An important matter raised by what is proposed is the extent to which res judicata and/or estoppel issues will arise from any evidence filed on behalf of the applicants and/or the Crown but, as Mr Mahuika submitted and I accept, this is a risk for both the applicants and the Crown but is more likely to be a potential detriment to the applicants in their proceeding. Given that both counsel are aware of this issue, I am satisfied that it does not require any judicial attention at this stage of this proceeding and may not arise at all.

Result

[26]I grant the application for intervention on the following basis:

(a)        the applicants are permitted to file four affidavits, each no more than 20 pages in substance;

(b)       the applicants are permitted to provide written submissions at the hearing. comprising no more than 20 pages; and

(c)        counsel for the applications is authorised to appear at the hearing, any pre- trial conferences and any other times or appearances authorised by the Court.

Harland J