Tau v Attorney-General
[2021] NZHC 3108
•18 November 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-534
[2021] NZHC 3108
BETWEEN RAWIRI TE MAIRE TAU AND OTHERS
First Plaintiff
AND
TE RŪNANGA O NGĀI TAHU
Second Plaintiff
AND
ATTORNEY-GENERAL
Defendant
Hearing: (Determined on the papers) Counsel:
C F Finlayson QC, J W J Graham and R M A Jones for Plaintiffs M G Colson QC and L Theron for Defendant
S P Jerebine and C S S Woodhouse for Environmental Defence Society Inc in watching brief capacity
N J Edwards for Federated Farmers of NZ Inc in watching brief capacity
Judgment:
18 November 2021
JUDGMENT OF ASSOCIATE JUDGE LESTER
TAU & OTHERS v ATTORNEY-GENERAL [2021] NZHC 3108 [18 November 2021]
[1] The plaintiffs seek declarations as to their rights in relation to wai māori (freshwater) that are grounded in tikanga – or in the Ngāi Tahu dialect tikaka – specifically their rangatiratanga and their entitlement to exercise such rights pursuant to pūtake-mauka / rangatiratanga entitlements.1
[2] The following declarations are sought in the first cause of action which is based on the asserted rangatiratanga over wai māori rights:
(a)A declaration that Ngāi Tahu has pūtake-mauka / rangatiratanga entitlements to wai māori.
(b)A declaration that the present freshwater legislative and regulatory regime constrains and encumbers the exercise by Ngāi Tahu of its pūtake-mauka / rangatiratanga entitlements.
(c)A declaration that the Crown ought to design and implement in co-operation and partnership with Ngāi Tahu a regime for the regulation, governance and allocation of wai māori that recognises, safeguards and accommodates pūtake-mauka / Ngāi Tahu rangatiratanga entitlements over wai māori within its takiwā.
(d)A declaration that, in order to comply with its obligations, the Crown ought not to develop or implement any legislation or policy which would further constrain or encumber pūtake-mauka / Ngāi Tahu rangatiratanga entitlements.
[3] The plaintiffs submit declarations (b) to (d) will only have to be considered if it is found that they hold rangatiratanga rights in relation to wai māori, that is, they are dependent upon the plaintiffs being granted declaration (a).
1 In a glossary annexed to the amended statement of claim pūtake-mauka is defined as: “a unique Ngāi Tahu term used to refer to the ancestral source of one’s rights upon the landscape whether it be the land, waterways or other taonga.”
[4] In this application the plaintiffs seek an order that the following issue be determined by way of preliminary question:2
Does Ngāi Tahu have pūtake-mauka / rangatiratanga entitlements to wai māori within its takiwā?
[5]Ngāi Tahu pleads that rangatiratanga means:
… sovereignty, chieftainship, right to exercise authority, chiefly autonomy. Derived from the concept of mana. Carries with it implications of authority, control and regulatory oversight, by the 19th century it evolved to mean the capacity to make law. Rangatiratanga was guaranteed to signatories of Te Tiriti o Waitangi. Under the Settlement Act, the Crown recognises Ngāi Tahu rangatiratanga.
[6]This definition of rangatiratanga is not accepted by the Crown.
[7]Ngāi Tahu pleads that, for it, rangatiratanga over wai māori:
(1)incorporates the right to make, regulate, alter and enforce decisions pertaining to how wai māori is allocated, used, managed and traded, and by whom;
(2)includes the right to set terms of tikaka and riteka on the use and non-use of wai māori;
(3)means Ngāi Tahu can govern, work and atawhai wai māori in a way that dignifies the tῑpuna of Ngāi Tahu, according to the tikaka and riteka, and for the benefit of present and future generations (kā uri whakatipu i muri nei); and
(4)means that Ngāi Tahu individuals and whānau have the freedom to live according to their customs and traditions.
2 In Innes v Ewing (1986) 4 PRNZ 10 (HC) at 18, the Court found a “two-stage process is envisaged” by the High Court Rules: “the first, the decision to order the separate determination of a particular question; the second, the determination of that question itself”.
[8] Mr Finlayson QC, counsel for Ngāi Tahu, accepted a positive answer to the question set out at [4] above will require Ngāi Tahu to establish the matters just set out at [7].
[9] The plaintiffs say their case does not concern aboriginal or customary title to a water body or water bodies, nor is it a claim to the “ownership” of wai māori.
[10]The Crown pleads a number of positive defences as follows:
(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.
(b)Some or all of the rights asserted by Ngāi Tahu, if they exist, have been modified, suspended or extinguished by legislation; the creation of legal rights; land alienation, other contracts or deeds or consequential administrative actions and/or other conduct or events inconsistent with the continued exercise and/or existence of those rights.
(c)To the extent the 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)There is a further positive defence in estoppel and acquiescence arising from the Ngāi Tahu Deed of Settlement.
(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 relating to preliminary questions
[11]Rule 10.15 of the High Court Rules 2016 provides:
10.15 Orders for decision
The court may, whether or not the decision will dispose of the proceeding, make orders for—
(a)the decision of any question separately from any other question, before, at, or after any trial or further trial in the proceeding; and
(b)the formulation of the question for decision and, if thought necessary, the statement of a case.
[12] Both counsel referred to a decision of Kós J, as he then was, in Haden v Attorney-General.3 There, his Honour identified five questions to be addressed by the Court which provide helpful guidelines for considering an application that an issue be determined at a preliminary hearing.4
[13] The first question is: “Will there be difficult demarcation questions between those issues to be addressed at the first trial and those left for the second?”
[14] Kós J described the interaction between issues in split trials as the single most important question for consideration by the Court in an application under r 10.15. The Court has to consider what is pleaded (including by way of positive defences), what issues arise on the separate question and what issues remain for the second hearing. It is desirable that the issues in the two hearings should be discreet. If they are not then there is likely to be significant evidential overlap making separate determination less likely to be appropriate. Particular consideration must be given to the potential difficulties that arise from issue estoppels.5
[15] The second question is: “Will the separate question bring the proceedings to an end?”
3 Haden v Attorney-General (2011) 22 PRNZ 1 (HC).
4 At [50].
5 Haden v Attorney-General, above n 3, at [50](a).
[16] That a separate question will not bring the proceeding to an end is not determinative but it is a consideration tending against granting the application.6
[17] The third question is: “What potential time saving does the separate question offer?” Kós J described this enquiry as having two aspects: the first being the potential hearing time saved, for which a mathematical approach is called for. His Honour said:7
The applicant should be able to demonstrate (by reference to reasoned time estimates) the potential time saved if the question is answered affirmatively. The applicant also needs to address the counterfactual: what total time will be taken if the question is answered negatively? The absence of significant potential time savings will be a consideration against granting an application under Rule 10.15.
(footnotes omitted)
[18] The second aspect to this question is whether having a separate question hearing has the potential to delay final resolution of the whole case and whether there are associated inefficiencies from splitting the trial into two parts.8
[19] The fourth question is: “How will appeals be dealt with?” Kós J noted multiple appeals are likely to be inefficient and delay the resolution of the proceedings.9
[20] The fifth question is: “Are there any other practical considerations tending one way or the other?”10
[21] In terms of the general propositions, his Honour confirmed each case must be considered on its own merits but that there is “at least a moderate presumption against splitting the trial”.11 Kós J noted that presumption is borne out in practice by the fact that applications under r 10.15, where contested, fail more frequently than they are granted and that the burden on the applicant is “not insignificant”.12 In complex cases r 10.15 procedure may be inappropriate.
6 At [50](6).
7 At [50](c).
8 At [50](c).
9 At [50](d).
10 Haden v Attorney-General, above n 3, at [50](e).
11 At [46].
12 At [46].
The plaintiffs’ case
[22] Mr Finlayson emphasised that the preliminary question did not involve asking the Court to make declaration (a) set out at [2] above.
[23] Mr Colson QC, counsel for the Crown, submitted in effect this was a distinction more apparent than real. He said all the preliminary question did was to turn the statement inherent in the wording of the declaration into a question. Accordingly, he said answering the question positively would effectively decide the declaration.
[24] The proposition underpinning the plaintiffs’ application is that the plaintiffs’ rangatiratanga rights in relation to wai māori have not been affected by any of the Crown’s positive defences and therefore the question is suitable for separate determination. Ngāi Tahu submitted:
The pleadings which the plaintiffs submit would fall into a second hearing would then centre on the effect of the Crown’s conduct (legislative, regulatory, other) on the tikanga relationship of Ngāi Tahu with freshwater. The Crown’s pleaded affirmative defences would naturally fall to be addressed at this second stage as well – the defences do not seek to negate the existence of pūtake mauka / rangatiratanga entitlements in relation to wai māori, they simply seek to absolve the Crown of liability (or prove that Ngāi Tahu has acquiesced in the ill-state of affairs their pleading portrays).
[25] Associate Professor Tau, in an affidavit filed in support of the application, refers to the wording of the apology made by the Crown to Ngāi Tahu in the 1997 Deed of Settlement and the 1998 Settlement Act. In the Ngāi Tahu Claims Settlement Act 1998, the Crown gave the following apology:13
7. The Crown apologises to Ngāi Tahu for its past failures to acknowledge Ngāi Tahu rangatiratanga and mana over the South Island lands within its boundaries, and, in fulfilment of its Treaty obligations, the Crown recognises Ngāi Tahu as the tāngata whenua of, and as holding rangatiratanga within, the Takiwā of Ngāi Tahu Whānui.
[26] Associate Prof Tau considers the above acknowledgment demonstrated an express understanding of the importance to Ngāi Tahu of continuing to exercise
13 Ngāi Tahu Claims Settlement Act 1998, s 6(7).
rangatiratanga within their takiwā and the need to provide for the exercise of Ngāi Tahu’s rangatiratanga. He says: “Acknowledgement of the present and continuous rangatiratanga of Ngāi Tahu is reflected in the phrasing: ‘holding rangatiratanga within’.”
[27] Associate Prof Tau’s opinion is that the rights, responsibilities and obligations of Ngāi Tahu over wai māori must realistically be exercised in conjunction and partnership with the Crown. He refers to the Crown having over many decades assumed “regulatory supremacy” over wai māori and having constrained and encumbered the exercise by Ngāi Tahu of its rights, responsibilities and obligations over wai māori. He says:
Ultimately, the question of pūtake-mauka / rangatiratanga entitlements concerns how Ngāi Tahu should be able to exercise its rangatiratanga over wai māori in the takiwā in present day New Zealand.
[28] Associate Prof Tau says the proposed preliminary question involves only the determination of whether Ngāi Tahu has pūtake-mauka / rangatiratanga entitlements over wai māori in its takiwā and nothing further. In his view, it will not require the Court to determine whether the present freshwater legislative and regulatory regime constrains or encumbers the pūtake-mauka / rangatiratanga entitlements of Ngāi Tahu.
[29]This theme is continued in Ngāi Tahu’s submissions, where it is said:
Notwithstanding the enduring nature of their rangatiratanga, Ngāi Tahu claim that the legislative and regulatory regime governing wai māori has constrained and encumbered the full exercise of their pūtake-mauka / rangatiratanga entitlements. In other words, Ngāi Tahu cannot observe their tikanga-based rights and responsibilities in relation to wai māori the way they were able to prior to the creation and imposition of freshwater legislation and regulation by the Crown.
[30] On this basis, the plaintiffs will, at the second hearing, seek declaration (b) that present freshwater legislation and regulations have “constrained” or “encumbered” the exercise by Ngāi Tahu of its tikanga-based rights.
[31] Accordingly, the preliminary question posed by Ngāi Tahu approaches its pūtake-mauka / rangatiratanga entitlements on the basis such have endured since 1840 notwithstanding the matters asserted in the Crown’s positive defences set out at [10].
Hence, the plaintiffs refer to the exercise of those rights being constrained or encumbered, that is, the rights continue to exist but their exercise has been frustrated by the actions of the Crown.
[32] The Crown’s positive defences proceed in part on the basis that, to the extent the rights asserted by Ngāi Tahu are inconsistent with legislation / regulations, the latter prevail. However, on the plaintiffs’ case and its proposed preliminary question assumes the positive defences do not impact on the existence of Ngāi Tahu’s rights. By submitting that the positive defences “naturally fall to be considered at [the] second stage” the plaintiffs’ position is the positive defences only go to whether the declarations sought should be made.
[33] The application was not advanced on the basis that the preliminary question would establish a baseline for tikanga rights against which the inroads of legislation could then be assessed.
[34] Mr Colson submitted the proposed question could not be separated from the positive defences, in particular the effect of legislation. He referred to a number of authorities for the proposition that customary rights, however, are classified, yield to legislation. He referred to statements from the following cases:
(a)Attorney-General v Ngati Apa:14
For present purposes what matters is that the customary rights of the native community continued at common law to exist until lawfully extinguished. Property rights may be abrogated or redefined through lawful exercise of the sovereign power.
(b)New Zealand Maori Council v Attorney-General:15
… the Waitangi Tribunal found that “the proprietary right guaranteed to hapu and iwi by the Treaty in 1840 was the exclusive right to control access to and use of the water while it was in their rohe”. The Tribunal has recognised that the customary authority exercised in 1840 must be adapted to meet modern circumstances and the need for resources to be shared with all New Zealanders.
(footnotes omitted)
14 Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) at [34].
15 New Zealand Maori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31 at [11].
(c)The headnote from Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2):16
Held: 1 Tikanga was law proved as fact. Usually, a court found facts for the purposes of a case, but a court had to be very careful about “finding” tikanga as a fact, even where it was required by the relevant iwi or hapū to do so. Whereas most facts relevant to a case were created by circumstance, tikanga was created by the relevant hapū or iwi through a mixture of practice, tradition and deliberation. Tikanga could change over time. Any recognition by a court could only be a snapshot at a certain point, and a court recognised tikanga only for the particular purpose of the particular case before it at the time. What was recognised by a court could not change the underlying fact of tikanga determined by the hapū or iwi exercising their rangatiratanga. This case arose under trust law. Courts had an inherent supervisory jurisdiction over trusts, to protect the interests of the beneficiaries consistent with the trust deed. The trust here constituted the legal form of the hapū Ngāi Rehua-Ngātiwai ki Aotea. In these circumstances, in exercising its jurisdiction where there was no conflicting law, the Court was bound to make decisions consistent with tikanga Ngāti Rehua-Ngātiwai ki Aotea …
[35] Again, the plaintiffs say they are not asserting customary title or treaty rights, but tikanga rights. Mr Finlayson relied on the following passage from Takamore v Clarke:17
Accordingly, what the whanau did was in accordance with tikanga but the act of taking and interring the body was not authorised by Ms Clarke, who at all times had legal power to determine how and where the body was to go.
[36] He submitted this finding showed the Supreme Court recognised tikanga rights continued to exist alongside the common law. Accordingly, the plaintiffs by their preliminary question say all they are seeking is to establish that its tikanga rights continue to exist. What impact the positive defences have on those rights, they say, is a separate issue.
Demarcation of issues – discussion
[37] I do not accept the plaintiffs’ submission that its preliminary question is a truly standalone issue from the Crown’s positive defences. Inherent in granting the application for determination of the preliminary question is acceptance of
16 Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1.
17 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [165].
the correctness of the submission that the plaintiffs’ rights have not been abrogated or extinguished by one or more of the Crown’s positive defences. Granting the application on the basis advanced would be to implicitly dismiss or at least discount the positive defences to the point they only relate to whether a declaration should be made. This is because, as noted at [8] above, for the preliminary question to be answered in the plaintiffs’ favour, they must establish the matters set out at [7]. However, on the Crown’s case, those are the very matters into which inroads have been made by the positive defences.
[38] An exchange between counsel in respect of the evidence that would be called at a hearing to determine the preliminary question highlights the issue. Mr Colson said the Crown would present evidence in support of its positive defences. Mr Finlayson suggested such evidence would be irrelevant. To rule that the Crown could not lead evidence in support of its positive defences would be to accept the proposition underlying the preliminary question that the plaintiffs’ tikanga rights were not extinguished by the positive defences. The plaintiffs say all the freshwater regulatory regime has done is to stop it exercising the rights it has always held, and continues to hold.
[39] As set out at [23] above, the plaintiffs’ submissions narrowly describe the effect of the positive defences. Mr Colson confirmed that, from the Crown’s point of view, the positive defences (if accepted) will mean the plaintiffs’ tikanga rights have been modified or extinguished – the opposite of what the plaintiffs submit.
[40] We arrive back at the point I made earlier, that is, to grant the plaintiffs’ application would involve a rejection of the Crown’s submissions as to the effect of its positive defences. That is because the present application presupposes that the plaintiffs’ rights have endured notwithstanding the freshwater legislative and regulatory regime and the other positive defences relied on by the Crown. The plaintiffs’ application is predicated on the positive defences being dealt with at the second hearing as confirmed by their submission set out at [23] above.
[41] To grant the application would, as I have said, implicitly endorse Ngāi Tahu’s claim that its rights have endured unaffected by legislation, but would mean the Judge
determining the preliminary question would have to confront afresh whether the proposition underlying the plaintiffs’ application was correct. The Crown would then face an argument that the granting of this application created an estoppel in that regard, as permitting the plaintiffs’ question to proceed on the basis advanced must mean its submission that its rights endured notwithstanding the freshwater legislation had been accepted. If the preliminary question was answered in the plaintiffs’ favour that would, in a practical sense, amount to dismissing of the positive defences to the extent they assert the plaintiffs’ rights have been modified or extinguished.
[42] Having determined there are difficult demarcation questions between the issues to be addressed at the first and second trial, and as this is the single most important question for consideration, I am satisfied that this application should be declined. However, for completeness, I briefly discuss the other questions identified in Haden.
[43] Question Two is: “Will the separate question bring the proceedings to an end?”. The plaintiffs accept there was no guarantee that if the question was answered in their favour that it would bring the proceeding to an end. A negative answer would likely mean the first cause of action could not continue pending appeal. However, the plaintiffs’ second cause of action would remain alive in that situation.
[44] An affirmative answer may provide a platform for resolution by negotiation. The plaintiffs submitted this factor is ultimately neutral. That is probably the high water mark from the plaintiffs’ point of view on this consideration.
[45] The second cause of action is described as being “additional or alternative” to the first. Thus, the fate of the second cause of action is not automatically tied to the outcome of the first.
[46] Question Three is: “What potential time saving does the separate question offer?” The plaintiffs prepared alternative timelines for the resolution of the proceeding depending on whether this application was granted or not. The first timeline, called “Scenario A”, contemplated a 10-day preliminary question hearing with no appeals. On that scenario, a total of eight weeks’ hearing time would be
required – two weeks for the preliminary question and six weeks for the trial, estimated to take place in late 2023.
[47] The alternative scenario (“Scenario B”) would arise if there were appeals relating to the preliminary question, including through to the Supreme Court, in which case the six-week hearing would not occur until late 2024.
[48] Both counsel acknowledge that, given the importance of the preliminary question, appeals would be likely.
[49] In “Scenario C”, there would be no preliminary question hearing, no appeals on interlocutory matters and a 16-week trial would take place early-to-late 2024.
[50] Mr Colson submitted there was no explanation as to why total hearing time went from eight weeks with a preliminary question to 16 weeks without the preliminary question. Mr Colson referred to the requirement from Haden, set out at
[17] above, that the applicant should be able to demonstrate by reference to reasonable time estimates, the potential time to be saved if the question was answered positively. There is no explanation for the difference between a required hearing time of eight and 16 weeks depending on whether there was a preliminary question hearing or not. Mr Colson noted Scenario A, that is, a 10 day preliminary question with no appeal, saw a substantive hearing in late 2023. The scenario with no preliminary question and no appeals or interlocutory matters, saw the substantive hearing, at best, in early 2024, that is, shortly after the best estimate with a preliminary question. On this basis, Mr Colson said the preliminary question saved only a small amount of time. However, if there were appeals on interlocutory matters then the matter would not proceed until early 2024 or late 2025.
[51] I accept Mr Colson’s submission that the plaintiffs have not, in terms of the requirements of Haden, explained why determination of the preliminary question would potentially save half the hearing time. It was not suggested the evidence to be called by the plaintiffs to establish their rights would differ according to whether there was a preliminary hearing or not. Further, in terms of the counterfactual (that is, if the preliminary question is answered in the negative), the appeals likely in that regard
would mean, on the plaintiffs’ estimate, the hearing could not be until late 2024 (albeit that this would not be materially different from the late estimate for a 16-week hearing with no appeals on interlocutory matters).
[52]This consideration does not favour a separate question.
[53] Question Four is: “How will appeals be dealt with?” The plaintiffs’ timelines contemplate appeals against a separate question and thus there is the possibility of multiple appeals which are likely to be inefficient. This factor does not favour the application being granted.
Final consideration – other practical considerations
[54]Kós J in Haden noted:18
There is also some reluctance evident in the case law for the determination of novel areas of law under Rule 10.15 procedure. Such cases are usually better resolved within their full factual setting, rather than in a separate subset of facts.
(footnote omitted)
[55] Here, the declarations the plaintiffs seek are dependent on a finding that the plaintiffs hold the rangatiratanga and the pūtake-mauka / rangatiratanga entitlements they claim. The concept of pūtake mauka is a unique Ngāi Tahu term.19 The plaintiffs say their claim is not based on customary title and the Crown submits that it does not appear to be based on the proposition that Te Tiriti o Waitangi is directly enforceable by the Courts so as to provide a legal basis for the asserted entitlements. It was not suggested that the concept of pūtake mauka had been before the Courts in the past.
[56] The Crown submits that how the rights asserted by the plaintiffs will bind others not before the Court needs to be articulated in light of the effect of legislation, including the effect of indefeasibility under the Land Transfer Act 2017 where land has been alienated or rights have been registered. The present claim is also framed as a civil claim rather than as a judicial review. The Crown submits that, given the
18 Haden v Attorney-General, above n 3, at [50](e).
19 See above n 1.
plaintiffs say their pūtake-mauka rights endure in the face of inconsistent legislation and the authorities relied on by the Crown set out at [34], means the proposed question raises novel issues.
[57] I also note that, while a positive answer to the question posed by the plaintiffs would not be a formal declaration, it would still be a ruling by the Court that the asserted rights exist. The effect of that ruling in the event the plaintiffs then, for example, discontinue this proceeding before the positive defences were considered, is potentially problematic. For instance, how would a consent authority treat such a finding if the plaintiffs sought or objected to a consent in relation to freshwater? This factor also stands against the application being granted.
Outcome
[58]The application is dismissed.
Costs
[59] My immediate reaction is there is no reason why costs should not follow the event on a 2B basis. I did not hear from counsel on costs. If counsel disagree with my view, then memoranda of not more than three pages may be filed within five working days of the date of this judgment. If no memoranda are filed then there shall be a costs award in favour of the defendant on a 2B basis, together with disbursements as fixed by the Registrar.
Associate Judge Lester
Solicitors:
Chapman Tripp, Auckland (for Plaintiffs)
Copy to counsel: C F Finlayson QC, Barrister, Auckland (for Plaintiffs)
Crown Law, Wellington (for Defendant)Copy to counsel: M G Colson QC, Barrister, Wellington
Copy to:
Environmental Defence Society Inc, Auckland (Intervenor)
Copy to counsel: S Jerebine, Barrister, Auckland (Intervenor)
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