Tau v Attorney-General
[2022] NZHC 2604
•10 October 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-000534
[2022] NZHC 2604
BETWEEN RAWIRI TE MAIRE TAU
First named First Plaintiff
AND
TIPENE GERARD O’REGAN
Second named First Plaintiff
AND
EDWARD WELLER ELLISON
Third named First plaintiff
AND
DAVID THOMAS HIGGINS
Fourth named First Plaintiff
AND
MICHAEL RICHARD SKERRETT
Fifth named First Plaintiff
AND
DAVID TOHURANGI ELLISON
Sixth named First Plaintiff
AND
TEWERA EDWIN KING
Seventh named First Plaintiff
AND
RICHARD RANGI WALLACE
Eighth named First Plaintiff
AND
JOHN ARTHUR HENRY
Ninth named First Plaintiff
AND
ELIZABETH ROWELLYN BROWN
Tenth named First Plaintiff
AND
FRANCOIS DENNIS TUMAHAI
Eleventh named First Plaintiff
AND
JAMES MASON RUSSELL
Twelfth named First Plaintiff
AND
NICHOLAS GRAHAM METZGER
Thirteenth named First Plaintiff
TAU v THE ATTORNEY-GENERAL [2022] NZHC 2604 [10 October 2022]
AND RANGI THEODORE BUNKER
Fourteenth named First Plaintiff
AND
REI VEITCH SIMON
Fifteenth named First Plaintiff
AND
TE RUNANGA O NGĀI TAHU
Second Plaintiff
AND
THE ATTORNEY-GENERAL
Defendant
AND
FEDERATED FARMERS OF NEW ZEALAND
Intervener
AND
ENVIRONMENTAL DEFENCE SOCIETY INCORPORATED
Intervener
AND
NEW ZEALAND FISH AND GAME COUNCIL
Non Party
Hearing: 12 September 2022 Appearances:
C F Finlayson KC, J W J Graham and X Y Lau for Plaintiffs L Theron and J B Watson for Defendant (by VMR)
Judgment:
10 October 2022
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 10 October 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Table of Contents
Para No
What is the claim about, and not about? [9] The Crown’s defences
[17]
The law
[19]
The disputed categories
[22]
Category 6
[26]
Ministry of Justice
[28]
Documents of senior officials
[29]
The date range and cl 6.10
[40]
Category 7
[50]
Relevant agencies
[51]
Documents of senior officials
[54]
Categories 8 and 9
[56]
Transfer of proceeding to a High Court Judge
[63]
Timetabling
[70]
Result
[73]
[1] Ngāi Tahu1 claims rangatiratanga and pūtake-mauka2 rights and entitlements in their takiwā3 in relation to wai māori (fresh water). It says wai māori is a taonga and the assertion of its rights and entitlements is grounded in tikaka4 and riteka5. It contends these rights and entitlements have been constrained, encumbered, eroded, or removed by the conduct of the Crown and seeks declarations to recognise, restore or accommodate them.
[2] Since November 2021, when the Court dismissed an application by Ngāi Tahu to have the existence of its pūtake-mauka and rangatiratanga entitlements determined as a preliminary question,6 the parties have been attempting to reach agreement on the terms of a tailored discovery order. They have had a good deal, but not complete, success in this regard.
[3] There is agreement in relation to five categories of documents and disagreement in relation to four others.
[4] Attached as schedule 1 are the five tailored discovery categories upon which the parties are agreed.
[5] Attached as schedule 2 are the four disputed categories of documents. The differences between the parties in relation to these disputed categories are few in number but will have a significant impact upon the scope of the discovery exercise and the reasonable timeframe for undertaking it.
1 The standing of the first plaintiffs as Upoko, Rakatira (Rangatira) or Kaumatua of Ngāi Tahu, and the second plaintiff as Ngāi Tahu’s tribal council, is pleaded in the statement of claim. For convenience, I refer to them collectively as Ngāi Tahu.
2 Pūtake-mauka is a unique Ngāi Tahu term used to refer to the ancestral source of one’s rights over the landscape.
3 Takiwā means tribal territory, district, area, vicinity, or region. The takiwā of Ngāi Tahu is defined in s 5 of the Te Runanga o Ngāi Tahu Act 1996.
4 Tikaka is tikanga in the Ngāi Tahu dialect of Te Reo Māori.
5 Riteka is defined as “the day to day practice and methods of doing something. A protocol, plan, method, agreement, arrangement, or custom or normal way of doing things”.
6 Tau v Attorney General [2021] NZHC 3108.
[6]The primary issues that arise are:
(a)whether the orders sought by Ngāi Tahu in relation to the four disputed categories of documents are reasonable and proportionate; and
(b)in respect of two categories of disputed documents (categories 8 and 9), whether tailored discovery orders are unnecessary given the Crown’s intention to adopt a case study approach of a sample of water bodies in Ngāi Tahu’s takiwā.
[7]Ngāi Tahu also seeks timetabling orders to take the case to trial.
[8] Finally, Ngāi Tahu seeks an order that future applications in this proceeding be referred to a High Court Judge, pursuant to s 26(1) of the Senior Courts Act 2016.
What is the claim about, and not about?
[9] The Crown submits the legal basis for the claim is unclear. It argues the proceeding appears, in substance, to be a declaratory proceeding with a strong public law context, and the usual procedural rule for public law and declaratory proceedings is that discovery is available only in special circumstances.
[10] Ngāi Tahu says, the claim is based in tikaka as a critical strand of the common law of New Zealand. It says this is not a native title case, and it does not seek ownership of water or water rights over particular water bodies. It is also neither a case under the Declaratory Judgments Act 1908, nor for judicial review. While Ngāi Tahu seeks declarations, it is pursuant to the Court’s inherent jurisdiction to declare rights.7 It follows, Ngāi Tahu submits, that the usual approach to discovery under the High Court Rules 2016 applies.
[11] The statement of claim contains two causes of action which share a common factual foundation.
7 Attorney General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213 at [118].
[12] Ngāi Tahu pleads that before 1840 it exercised fully the rights, responsibilities, and obligations of rangatiratanga over wai māori throughout its takiwā. Ngāi Tahu says its rangatiratanga over wai māori includes the right to make, regulate, alter, and enforce decisions pertaining to how wai māori is allocated, used, managed, and traded, and by whom. It also carries obligations to govern, work and care for wai māori in a manner that dignifies tīpuna and benefits present and future generations.
[13] Since 1840, it is alleged, the exercise of rangatiratanga by Ngāi Tahu has been restrained and encumbered by legislation and policies of the Crown. Specifically, Ngāi Tahu pleads, the present wai māori legislative and regulatory regime does not recognise, safeguard, or provide for Ngāi Tahu to exercise its pūtake-mauka and rangatiratanga entitlements and in some respects removed those entitlements.
[14] In its first cause of action, Ngāi Tahu pleads the Crown is obligated to design and implement, in cooperation and partnership with Ngāi Tahu, a regime for the regulation, governance, and allocation of wai māori which recognises its entitlements. Such obligation is said to arise from:
(a)the nature and extent of Ngāi Tahu’s pūtake-mauka and rangatiratanga entitlements;
(b)the Crown’s acknowledgments, commitments, and undertakings to Ngāi Tahu;
(c)the guarantees and principles under Te Tiriti o Waitangi;
(d)tikaka Māori;
(e)recognition by the Crown of the enduring rangatiratanga of Ngāi Tahu under Ngāi Tahu’s 1997 Deed of Settlement with the Crown;
(f)the Crown’s commitment to reconcile with Ngāi Tahu and to enter into a new age of cooperation at the time of the 1997 Deed of Settlement; and
(g)the United Nations Declaration on the Rights of Indigenous Peoples.
[15] Ngāi Tahu’s second cause of action seeks to develop on dicta in Paki v Attorney-General.8 It is alleged the Crown has a relational duty of good faith to work in cooperation and partnership with Ngāi Tahu to design and implement a regime for the regulation, governance, and allocation of wai māori that recognises, safeguards, and accommodates the rights and interests of Ngāi Tahu over wai māori within its takiwā.
[16] Ngāi Tahu seeks one declaration as to its tikanga-based rights in relation to wai māori. It seeks a further eight declarations about how the Crown’s conduct, past and present, constrains those rights and how the Crown should accommodate and respect those rights in the future.
The Crown’s defences
[17] The Crown pleads a number of positive defences. Ngāi Tahu argues that the Crown’s affirmative defences are primarily what gives rise to the need for tailored discovery in the disputed categories.
[18]The Crown pleads:
(a)legislation, including the Resource Management Act 1991, the Water and Soil Conservation Act 1967, and Geothermal Energy Act 1953 has given the Crown the right to control and use freshwater, but, notwithstanding that, it has engaged with Ngāi Tahu and other Māori on rights and interests in wai māori;
(b)some or all of the rights asserted by Ngāi Tahu, if they exist, have been modified, suspended, or extinguished by:
(i)legislation;
8 Paki v Attorney-General [2009] NZCA 884, [2011] 1 NZLR 125 at [105]-[118] per Hammond J.
(ii)the creation of legal rights;
(iii)land alienation, other contracts or deeds, and/or consequential administrative actions; and/or
(iv)other conduct or events inconsistent with the continued exercise and/or existence of those rights;
(c)to the extent that claims made in the present proceeding are in substance the same as those claims settled in the Ngāi Tahu Deed of Settlement, the Crown is released and discharged from its obligations in respect of those claims;
(d)to the extent Ngāi Tahu agreed to accept a response from the Crown to its historical claims under the 1997 Deed of Settlement, it is estopped from seeking a different response in this proceeding; and
(e)the Court should not intervene in, or seek to constrain the Crown in relation to, the development and introduction of legislation and policy.
The law
[19] Under r 8.8 of the High Court Rules, tailored discovery must be ordered where the interests of justice require an order involving more or less discovery than standard discovery would involve. Here, both parties agree tailored discovery is appropriate.
[20] Under r 8.11, parties must address the matters in the discovery checklist (pt 1 of sch 9 to High Court Rules) in the process of co-operation and endeavouring to agree on an appropriate discovery order. The checklist provides the parties must endeavour to agree on the methods and categories to be adopted and discuss whether a staged approach may be appropriate.9
9 High Court Rules 2016, part 1 sch 9, cl 3(2)(b).
[21] The principles to be applied in cases where the scope of tailored discovery is in issue were discussed in Commerce Commission v Cathay Pacific Airways Ltd10 and Minister of Education v James Hardie New Zealand11 and are as follows:
(a)The concept of proportionality is central to tailored discovery. It is relevant in determining whether tailored discovery is appropriate and deciding, if there is tailored discovery, whether the categories of tailored discovery are reasonable and proportionate. It is also a key concept in determining what is a reasonable search of documents within the scope of a discovery order.
(b)The starting-point for tailored discovery is an assessment of the issues for determination. Discovery categories will reflect the issues and will only be ordered for discovery of documents that are relevant to those issues. Except in exceptional circumstances, these issues will be discernible from a review of the pleadings.
(c)An assessment of proportionality will need to take into account the chances of finding relevant documents and “their degree of relevance”, which must then be balanced against the costs of carrying out the discovery process.
(d)Broader considerations such as the amount in issue, the parties’ respective resources, and delay to the proceeding may be relevant, but in very large-scale proceedings these factors are unlikely to be determinative.
(e)Where there is no specific evidence of the potential cost or other practical implications involved in giving the discovery sought, Judges may take into account their own experience and understanding of what is practical without detailed affidavit evidence.
10 Commerce Commission v Cathay Pacific Airways Ltd [2012] NZHC 726.
11 Minister of Education v James Hardie New Zealand [2019] NZHC 245 at [50].
(f)In any complex tailored discovery exercise, there must always be a measure of “give and take” between the parties.
(g)The Court should consider whether the disputed issues can be proved more simply, cheaply, and expeditiously by other means.12
The disputed categories
[22] This is a case where the discovery exercise could become oppressive. For that reason, the concept of proportionality is at the heart of the differences between the parties.
[23] The Crown contends that to the extent it has agreed on tailored discovery categories, it has gone beyond what is required. It argues the orders sought by Ngāi Tahu are disproportionate and unreasonable as the relevance of many documents in the disputed categories will likely be low, but the logistical and cost implications in searching for and locating them will be very large. Further, the orders sought will cause substantial delays in reaching a hearing. The Crown submits that six months should be allowed for discovery if the disputed categories are limited in the manner it proposes, but otherwise more than a year would likely be required. The Crown says Ngāi Tahu cannot have both the extensive discovery it seeks and a 2024 fixture as it wishes.
[24] Ngāi Tahu accepts that the discovery sought is extensive but submits this is justified given:
(a)the importance and relevance of the proceedings to the present and future relationships of Ngāi Tahu with the Crown;
(b)the extensive period of time that must be considered to properly determine the declarations about the Crown’s conduct; and
12 Minister of Education v James Hardie New Zealand, above n 11, at [47].
(c)the geographical scope of the area it relates to, that is, the entire Ngāi Tahu takiwā which includes most of Te Waipounamu.
[25] I will deal with each of the four disputed categories of tailored discovery sought by Ngāi Tahu (as set out in schedule 2) below.
Category 6
[26] This category is intended to capture government papers, briefings, and other documents relevant to the Crown’s view of Ngāi Tahu’s rights in respect of wai māori, and what actions and engagements the Crown undertook in relation to those rights.
[27] The Crown argues that for reasons of proportionality, this category should be varied to:
(a)remove the Ministry of Justice as a relevant agency;
(b)remove reference to “and documents prepared by senior officials (including emails)”;
(c)change the date range to operate from 2003 rather than from 1986; and
(d)remove sub-category 6.10.
Ministry of Justice
[28] I understand it is accepted that Te Arawhiti has access to or control of documents as the successor agency to the Office of Treaty Settlements, which in turn was the successor agency of the Treaty of Waitangi Unit of the Ministry of Justice. For that reason, the inclusion of the Ministry of Justice as a relevant agency is unnecessary. It shall be removed.
Documents of senior officials
[29] Ngāi Tahu’s position is that discovery should include the advice of senior officials that fed into the creation of Cabinet papers, minutes and briefings to Minsters. It says it is not seeking internal documents between senior officials in general and considers it will not be difficult to identify senior officials or prepare a custodian list.
[30] The Crown says there will be difficulties identifying and locating such documents. Each department has its own document management systems and there are significant differences between departments for when documents have been reliably held and can be searched in electronic form. The date range proposed by Ngāi Tahu spans 36 years and, therefore, many documents will be in hardcopy and spread between several centres that cannot be searched except by reference to indexes or catalogues.
[31] The Crown also says the term “senior officials” will mean different things to different departments. Organisational charts are fluid and over such a long-time span are likely to be incomplete. There is the potential for disagreement and delay in identifying senior officials and in the preparation of a custodian list. More generally, the Crown argues it is highly unlikely that anything will turn on the advice of senior officials given behind the scenes.
[32] For Ngāi Tahu, Mr Graham submitted the term senior officials could be avoided if an order was made requiring discovery of any documents referred to in the Cabinet papers and briefings. I do not accept that is appropriate because it would broaden the discovery exercise and capture much irrelevant material.
[33] Another possibility is to adopt a staged discovery process. At stage one, Ngāi Tahu would be provided with Cabinet papers, minutes and briefings to Minsters. At stage two, Ngāi Tahu could request and obtain disclosure of further documents referenced in the Cabinet papers, minutes and briefings insofar as they are relevant to the issues.
[34] Ngāi Tahu says a staged approach will lead to disputes as to the relevance of documents requested at stage two. To avoid such disputes, Mr Graham suggested I could order that any documents requested by Ngāi Tahu would be provided by the Crown without dispute. Ngāi Tahu also argues a staged approach is inefficient as it would mean documents had to be searched for twice, and that is not consistent with the objective of the High Court Rules to secure the just, speedy, and inexpensive determination of any proceeding.13
[35] I consider a staged approach is appropriate. In my view, there are likely to be disputes and delays in identifying senior officials. Also, contrary to Ngāi Tahu’s submission, as worded category 6 does appear to encompass internal documents between officials, giving rise to the likelihood that many irrelevant or marginally relevant documents will be captured.
[36] A staged discovery process is not inconsistent with the High Court Rules – it is one of the matters parties are to consider under the discovery checklist.14
[37] I do not accept that a staged approach will cause delays as the documents required to be disclosed at stage one are the most readily accessible and likely to be most relevant. It is identifying and finding other documents referenced in them that will take significant time. Therefore, similar or greater delays would be likely to arise if Ngāi Tahu’s proposed discovery order were adopted.
[38] I do not see there is anything in the point that there may be disputes over disclosure of further documents at stage two. I expect it will be readily apparent what documents should be disclosed at stage two. Ms Theron makes the point that the Crown is subject to statutory disclosure obligations; there would be little point in it seeking to obstruct disclosure of specific documents in this proceeding.
[39] There shall be an order for a staged approach to disclosure under category 6 (and 7). Stage one will involve the disclosure of the relevant Cabinet papers, minutes, and briefings to Ministers. Stage two will involve the disclosure of such further
13 High Court Rules, r 1.2.
14 High Court Rules, sch 9 cl 3(2)(b).
documents requested by Ngāi Tahu that are referenced in the Cabinet papers, minutes, and briefings to Ministers relevant to the matters in issue. The parties will need to discuss and come back to the Court with specific terms for such an order.
The date range and cl 6.10
[40] These two matters are related and I deal with them together. The Crown says the date range for category 6 should begin in 2003 when the Government established the Sustainable Water Programme of Action (the first wide-ranging freshwater reform programme under the Resource Management Act 1991).
[41] Ngāi Tahu submits that it is necessary for the date range to go back to 1986. This is because the temporal limit proposed by the Crown would exclude:
(a)documents regarding the Crown’s approach to wai māori during the early stages of the Treaty settlement process; and
(b)documents relating to the transfer of assets to state-owned enterprises (SOEs).
[42] Ngāi Tahu says the Electricity Corporation of New Zealand was one of many SOEs established from 1986, and a large section of its hydro-electricity assets were based in Ngāi Tahu’s takiwā. Ngāi Tahu believes documents relating to ECNZ, and other unidentified SOEs, may shed light on the Crown’s approach to wai māori in that context and, in addition, the privatisation of SOEs formed part of the background to the Ngāi Tahu Treaty settlement.
[43] Referring back to the pleadings, Ngāi Tahu argues that documents of discussions within the government from 1986, about how freshwater resources would be used by ECNZ and other SOEs, are likely to be highly relevant to the issues of:
(a)the Crown’s view of Ngāi Tahu’s rangatiratanga or pūtake-mauka entitlements;
(b)whether the Crown acknowledged wai māori as taonga for Ngāi Tahu and that it has rights and interests in wai māori;
(c)whether and how the Crown constrained or encumbered Ngāi Tahu’s rangatiratanga or pūtake-mauka entitlements; and
(d)what action, if any, the Crown took regarding its obligations.
[44] The Crown argues that its view of tikaka or Ngāi Tahu’s rangatiratanga or pūtake-mauka entitlements is likely to be of limited relevance at trial.15 It also submits that it has acknowledged both that some water bodies are taonga for Ngāi Tahu, and that Ngāi Tahu’s rangatiratanga or pūtake-mauka entitlements have been constrained or encumbered. Further, insofar as discovery relating to the transfer of resources to ECNZ may identify what actions the Crown took regarding its obligations to Ngāi Tahu, the Crown argues that these are highly likely to be within Ngāi Tahu’s knowledge. The Crown also submits that it can be expected to provide the evidence about historical events that is necessary for the Court to determine the claim in the same way it would in a judicial review proceeding, and this factual material is likely to be uncontested.
[45] I accept discussions within the government concerning SOE reforms and the allocation of freshwater resources are likely to be relevant. Also, this case will deal with important developing issues in the law as to how tikaka is to be recognised and applied by the Courts. I do not, therefore, accept that it is necessarily the case that the Crown’s view of, or attitude to, tikaka generally, and Ngāi Tahu’s rangatiratanga or pūtake-mauka entitlements in particular, will be of limited relevance. That said, I consider the primary focus of the proceeding is the manner and extent to which Ngāi Tahu’s entitlements to wai māori are presently constrained and encumbered and how they can be restored and accommodated. On this basis, more can be done to ensure that the discovery process is kept within reasonable bounds.
[46] In so far as Ngāi Tahu justifies its position that the start date for category 6 should be from 1986 because that would include documents relevant to the Crown’s
15 See Ngāti Whātua Orakei v Attorney General (No 4) [2022] NZHC 843 at [371], [390] and [570].
approach to wai māori during the early stages of the Treaty settlement process, such documents will be captured under category 7 (to which I later refer).
[47] In so far as Ngāi Tahu says it needs to obtain disclosure of documents concerning the SOE reforms, that can be accommodated, as the Crown has suggested, by crafting a further category or sub-category (in substitution for sub-category 6.10) concerned specifically with freshwater in the context of SOE reforms. Such a category would need to be limited as to date as well as the government agencies and SOEs to which it applies.
[48] I consider, therefore, that the start date for category 6 should be 2003 and not 1986. That generally provides sufficient context for the Court to appropriately determine the extent to which Ngāi Tahu’s entitlements have been and are presently constrained and encumbered, and how such rights should be recognised and accommodated.
[49] In addition, the parties shall be required to confer as to the terms of a new category or sub-category in substitution for disputed sub-category 6.10 addressing specifically the issue of the Crown’s approach to wai māori in the context of the SOE reforms. If the parties cannot reach agreement the Court will finally determine what orders should be made in this respect.
Category 7
[50]There are two issues that arise in relation to the disputed category 7.
Relevant agencies
[51] The Crown has accepted that the Department of Prime Minister and Cabinet (DPMC) is a relevant agency for the purposes of category 6, but not category 7. I do not consider justification has been provided for what appears to be an incongruent approach.
[52]The Crown’s submissions simply say:
High level DPMC documents relating to water are already captured by category 6 (though from 2003 only). The Crown considers that the likely level of relevance of these documents justifies a narrower focus on the agency most likely to hold the relevant documents.
[53] Category 7 is concerned with certain documents generated prior to and after Ngāi Tahu’s Treaty settlement in 1998. Clearly, on the Crown’s approach, relevant documents generated by DPMC prior to 2003 will not be captured. I agree with Ngāi Tahu that DPMC should be included as a relevant agency.
Documents of senior officials
[54] The same issue concerning documents of senior officials as under category 6 arises here. It will be dealt with in the same manner by way of staged discovery. The parties will need to discuss and come back to the Court as to the particulars of the order.
[55] Finally, I note that I have adopted some changes to the wording of category 7 which were proposed by the Crown that I consider do not alter meaning but provide greater clarity.
Categories 8 and 9
[56] Ngāi Tahu argues these categories are necessary so that it may respond to the Crown’s affirmative defences. It accepts the categories are broad but says the Crown has refused to particularise its defences and it is a challenge to craft limits on these categories.
[57] The Crown objects to categories 8 and 9 in toto and in its cross-application proposes the making of an order that it would provide by way of case studies the circumstances of a sample of the water bodies within Ngāi Tahu’s takiwā. It considers a case study approach is an appropriate means of enabling a proportionate and constructive amount of documentary material to be exchanged between the parties. Affidavit evidence for and against such an approach was given by experts for the parties.
[58] At the hearing there was a change in the Crown’s position. It recognises that it does not require a court order to present case study evidence. As I understand it, the Crown’s position now is that it does not seek orders as set out in its cross-application but, in the interests of transparency, is giving notice of its intention to produce case study evidence that draws upon experience gained in cases under the Marine and Coastal (Takutai Moana) Act 2011. It also says this intention provides context for what Ngāi Tahu has advanced as the underlying rationale for its discovery requests in categories 8 and 9.
[59] Because of this change in the Crown’s position, it is unnecessary for me to consider the cross-application. Had I been required to do so, I would not have accepted the case study approach as a substitute for discovery concerning the Crown’s pleaded affirmative defences.
[60] What the Crown suggests is not a discovery exercise but an evidence gathering exercise. It may present its case in whatever manner it chooses but not at the cost of depriving Ngāi Tahu of discovery so it too can present its case in the manner it wishes. While I understand the case study approach has been accepted in proceedings under the Marine and Coastal (Takutai Moana) Act and before the Waitangi Tribunal, I am not aware of it being adopted in other cases. I accept Ngāi Tahu’s argument that its use as a tool in other types of proceedings does not provide sufficient justification for its use here.
[61] There are obvious fairness concerns in adopting such a process. The evidence before me suggests that it would take a very long time for the case studies to be completed. During this period, Ngāi Tahu’s ability to prepare its case would be hampered. The Crown’s approach would also allow it to direct the narrative. It may also select water bodies to study which Ngāi Tahu does not consider representative of water bodies in its takiwā. Even if Ngāi Tahu had been open to the case study approach, consideration would have to be given to allowing it to be involved in the selection of appropriate water bodies for study and in monitoring the studies and engaging experts to work alongside those preparing reports on behalf of the Crown. That would result in considerable costs which Ngāi Tahu does not wish to incur.
[62] There shall therefore be an order for tailored discovery in categories 8 and 9. I have, however, amended category 8 to replace the word “water” with “wai māori” reflecting more accurately the focus of the proceeding.
Transfer of proceeding to a High Court Judge
[63] Ngāi Tahu has applied for an order that this and all future applications relating to this proceeding be referred to a High Court Judge pursuant to s 26(1) of the Senior Courts Act 2016. The Crown has not opposed the application.
[64]Section 26(1) provides:
An Associate Judge may, on the application of a party to a proceeding before the Associate Judge or on the Associate Judge's own initiative, refer the proceeding or a matter in the proceeding to a High Court Judge if the Associate Judge is satisfied that because of the complexity of the proceeding or matter it is desirable to do so.
[65]Under s 26(3), once a proceeding or matter has been referred to or transferred
to a High Court Judge, that Judge may either dispose of the proceeding, or refer the
proceeding or matter back to the Associate Judge with directions.
[66] Ngāi Tahu submits this case raises complex legal, factual and tikaka issues, and it would be more efficient if one High Court Judge were to manage and hear all future applications.
[67] To date, the proceeding has been case managed by Associate Judges in the usual manner. Two interlocutory applications have been heard by Associate Judges. Although Ngāi Tahu has proposed a timetable for the future conduct of the proceeding, it has not identified what further applications will be made of such complexity that it would be desirable they be dealt with by a High Court Judge.
[68] While I accept that the trial will be long and complex, I do not accept that the process of case management is likely to be so. If it occurs that interlocutory applications are made that should only be determined by a High Court Judge, counsel can draw the Court’s attention to it at that time.
[69] The greater share of the Court’s day-to-day civil case management work is undertaken by Associate Judges, consistent with their limited jurisdiction. This allows them to develop expertise in case management and frees up High Court Judges to deal with substantive matters. I am not satisfied there is a need to adopt the unusual course of referring this proceeding to case management by a High Court Judge. I do not grant the order sought.
Timetabling
[70] Ngāi Tahu has proposed a timetable to take the case to trial. The Crown submits the timetable is unrealistic.
[71] Ngāi Tahu’s proposed timetable is premised on an understanding that the case can be ready for trial by late 2023 and heard in 2024. I am advised the trial is likely to be of 12-14 weeks duration. I am also advised by the Registry that the Court will not be able to accommodate such a long trial during 2024. A trial of that length could commence at the beginning of February 2025 or after the following Easter break.
[72] I have asked that these dates be reserved to give counsel an opportunity to confer as to an appropriate timetable in light of the orders made on this application and that the trial is unlikely to be before 2025.
Result
[73] In relation to discovery, and subject to paras [74]-[77] below, the parties shall provide tailored discovery in the categories as set out in schs 1 and 3 attached.
[74]Counsel are to confer in relation to:
(a)terms for staged discovery in categories 6 and 7; and
(b)the terms of a new category or sub-category to replace proposed sub- category 6.10;
(c)the timeframe within which discovery will be completed; and
(d)any other terms sought by the parties in relation to the discovery process.
[75] The parties shall file a joint memorandum within 21 days of this judgment indicating whether agreement has been reached on these matters. In the event of disagreement, they will be considered at the case management conference to be convened under para [76] below.
[76] The Registrar is to convene a telephone case management conference in consultation with counsel no earlier than 28 days after the issue of this judgment to address the following:
(a)any disputes as to the final terms of the discovery orders to be made by the Court;
(b)the making of such orders; and
(c)further timetabling orders for the future conduct of this proceeding; and
(d)consideration of the dates available for the trial.
[77] Counsel shall file memoranda addressing the matters in para [76] at least three working days prior to the next case management conference.
[78]I dismiss the application under s 26(1) of the Senior Courts Act.
[79]I do not make any additional timetabling orders at this time.
[80]I dismiss the Crown’s cross-application.
[81] Pending a final resolution of the matters that are the subject of this judgment, I shall reserve costs.
O G Paulsen Associate Judge
Solicitors:
Chapman Tripp
Crown Law, Wellington
Schedule 1: Categories for tailored discovery that are not disputed
Category 1
1All documents relating to the plaintiffs’ exercise of the rights, responsibilities of rangatiratanga in respect of wai māori in their takiwā from before 1840 to the present day, including:
1.1in relation to the tribal economy based on production, trade and distribution of goods;
1.2the right to make, regulate, alter and enforce decisions about how wai māori is allocated, used, traded and by whom;
1.3the right to set terms of tikaka and riteka in relation to the use and non- use of wai māori;
1.4the right to govern, work and atawhai wai māori;
1.5any adaptation of the plaintiffs’ customs in response to European settlement.
Category 2
2All documents relating to the status of wai māori held by the plaintiffs including:
2.1as a taonga, governed under the domain of rangatiratanga as defined by Ngāi Tahu tikaka and riteka;
2.2in relation to pūtake-mauka;
2.3in relation to the concept of ki uta ki tai.
Category 3
3All documents relating to the plaintiffs’ establishment of ancestral claims to wai māori in Te Waipounamu through Rākaihautū, the ancestor of Waitaha, and his son, Rokohouia.
Category 4
4All documents relating to the constraint by the Crown of Ngāi Tahu and its pūtake-manuka / rangatiratanga entitlements over wai māori, in relation to the acknowledgements, commitments and undertakings set out in Schedule 1 to the statement of claim.
Category 5
5All documents relating to the degradation, pollution and over-allocation of wai māori and alteration of waterbodies due to the Crown’s regulation, governance and allocation of wai māori.
Schedule 2: Categories for tailored discovery sought by Ngāi Tahu that are disputed
Category 6
[6] Cabinet papers and minutes, briefings to Ministers, and documents prepared by senior officials (including emails) held by the Ministry for the Environment, the Department of Internal Affairs, the New Zealand Treasury, Te Puni Kokiri, Te Arawhiti, the Ministry of Justice, and the Department of the Prime Minister and Cabinet that relate to wai māori from 1986, including such documents relating to:
6.1kawanatanga in respect of wai māori;
6.2the Crown’s view of rangatiratanga in respect of wai māori;
6.3whether or not water bodies are taonga for Ngāi Tahu;
6.4Ngāi Tahu rights and interests in wai māori;
6.5the recognition and/or safeguarding of pūtake-mauka/rangatiratanga entitlements of Ngāi Tahu within the present legislative regime governing wai māori;
6.6actions taken by the Crown specific to Ngāi Tahu regarding the Crown’s acknowledgments, commitments and undertaking set out in schedule 1 to the statement of claim;
6.7actions taken by the Crown specific to Ngāi Tahu in response to the submissions of Ngāi Tahu set out in schedule 2 to the statement of claim;
6.8engagement between the Crown and pan-Māori forums/groups in relation to wai māori;
6.9the establishment of a national water commission in so far as such documents relate to wai māori; and
6.10relevant entities which would have been involved in discussions about wai māori, such as the Electricity Corporation of New Zealand.
Category 7
[7] Briefings to Ministers and documents prepared by senior officials (including emails), held by Te Arawhiti, the Department of Prime Minister and Cabinet and the Ministry of Justice, and equivalent material at the leadership level in the case of Ngāi Tahu relating to wai māori:
7.1generated in the context of the negotiations of Ngāi Tahu Deed of Settlement (21 November 1997) prior to the passage of the Ngāi Tahu Claims Settlement Act 1998; and
7.2generated after the passage of the Ngāi Tahu Claims Settlement Act 1998 but relating to wai māori and the Ngāi Tahu Deed of Settlement and/or Ngāi Tahu Claims Settlement Act 1998.
Category 8
[8] All documents relating to the modification, suspension, or extinguishment of rights in relation to water by legislation (including the legislation specified in Appendix 4 of the Crown’s letter to Chapman Tripp dated 4 February 2021), the creation of legal rights, land alienation, other contracts, or deeds and/or consequential administrative actions.
Category 9
[9]All documents relating to legislation and policies of the Crown that:
9.1constrain, remove or erode the plaintiffs’ ability to pūtake-mauka or rangatiratanga entitlements over wai māori (according to the plaintiffs); or
9.2constrain, remove, or erode the plaintiffs’ rights and interests in wai māori (according to the Crown).
Schedule 3: Categories for tailored discovery to apply
Category 6
[6] Cabinet papers and minutes, and briefings to Ministers held by the Ministry for the Environment, the Department of Internal Affairs, the New Zealand Treasury, Te Puni Kokiri, Te Arawhiti, and the Department of the Prime Minister and Cabinet that relate to wai māori from 2003 including such documents relating to:
6.1kawanatanga in respect of wai māori;
6.2the Crown’s view of rangatiratanga in respect of wai māori;
6.3whether or not water bodies are taonga for Ngāi Tahu;
6.4Ngāi Tahu rights and interests in wai māori;
6.5the recognition and/or safeguarding of putake-mauka/rangatiratanga entitlements of Ngāi Tahu within the present legislative regime governing wai māori;
6.6actions taken by the Crown specific to Ngāi Tahu regarding the Crown’s acknowledgments, commitments and undertaking set out in schedule 1 to the statement of claim;
6.7actions taken by the Crown specific to Ngāi Tahu in response to the submissions of Ngāi Tahu set out in schedule 2 to the statement of claim;
6.8engagement between the Crown and pan-Maori forums/groups in relation to wai māori;
6.9the establishment of a national water commission in so far as such documents relate to wai māori.
Category 7
[7] Briefings to Ministers held by Te Arawhiti and the Department of Prime Minister and Cabinet, and equivalent material at the leadership level in the case of Ngāi Tahu, relating to the Ngāi Tahu Treaty Settlement and wai māori:
7.1in the context of the negotiations of the Ngāi Tahu Deed of Settlement (21 November 1997) prior to the passage of the Ngāi Tahu Claims Settlement Act 1998; and
7.2after the passage of the Ngāi Tahu Claims Settlement Act 1998.
Category 8
[8] All documents relating to the modification, suspension, or extinguishment of Ngāi Tahu’s asserted rights in relation to wai-māori by legislation (including the legislation specified in Appendix 4 of the Crown’s letter to Chapman Tripp dated 4 February 2021), the creation of legal rights, land alienation, other contracts, or deeds and/or consequential administrative actions.
Category 9
All documents relating to legislation and policies of the Crown that:
9.1constrain, remove or erode the plaintiffs’ ability to pūtake-mauka or rangatiratanga entitlements over wai māori (according to the plaintiffs); or
9.2constrain, remove, or erode the plaintiffs’ rights and interests in wai māori (according to the Crown).
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