Te Ara Rangatu O Te Iwi O Ngati Te Ata Waiohua Incorporated v Attorney-General
[2018] NZHC 2886
•7 November 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2013-404-005224 [2018] NZHC 2886
BETWEEN TE ARA RANGATU O TE IWI O NGĀTI
TE ATA WAIOHUA INCORPORATED First Plaintiff
RIKI MINHINNICK Second Plaintiff
AND
THE ATTORNEY-GENERAL OF NEW ZEALAND FOR/ON BEHALF OF THE CROWN
First Defendant
.../2 cont’d
Hearing: 18 September 2018
Further submissions 25, 26 and 28 September 2018
Counsel:
J Kahukiwa for Plaintiffs (and Counterclaim Plaintiff)
S Kinsler and S Shaw for First Defendant (and First Respondent) T D Smith and A J Wicks for Second and Third Defendants (and First and Second Applicants)
Judgment:
7 November 2018
JUDGMENT OF VENNING J
This judgment was delivered by me on 7 November 2018 at 3.00 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Corban Revell Lawyers, Auckland Meredith Connell, Wellington Chapman Tripp, Wellington
Crown Law, Wellington
Counsel: M Scholtens QC, Wellington
J Hodder QC, Wellington
TE ARA RANGATU O TE IWI O NGĀTI TE ATA WAIOHUA INC v THE ATTORNEY-GENERAL [2018] NZHC 2886 [7 November 2018]
NEW ZEALAND STEEL LIMITED Second Defendant
WAIKATO NORTH HEAD MINING LIMITED
Third Defendant
HERITAGE NEW ZEALAND POUHERE TAONGA
Counterclaim Defendant
CIV-2014-404-001172
BETWEEN NEW ZEALAND STEEL MINING
LIMITED
First ApplicantNEW ZEALAND STEEL LIMITED Second Applicant
AND
THE ATTORNEY-GENERAL First Respondent
NGĀTI TE ATA Second Respondent (Counterclaim/Crossclaim Plaintiff)
Introduction
[1] These two proceedings have been case managed together for some time.
[2] The 2014 proceedings (formerly M170/90) originally involved an application for judicial review by New Zealand Steel Mining Limited and New Zealand Steel Limited (collectively NZ Steel) against Ministers of the Crown and the Attorney- General. NZ Steel sought to prevent the Government removing four areas from the scope of their mining licence at Maioro. Ngāti Te Ata sought and was granted leave to be joined to make submissions. Subsequently Ngāti Te Ata filed a pleading including a counterclaim. The proceeding was stayed pursuant to an exchange of undertakings while settlement was explored. In 2014 NZ Steel sought leave to discontinue the proceeding and to be released from their undertakings. The High Court granted leave. The decision was subsequently upheld by the Court of Appeal. The only extant part of the proceeding is Ngāti Te Ata’s proposed counterclaim.
[3] In 2013 Te Ara Rangatu O Te Iwi O Ngāti Te Ata Waiohua Incorporated commenced proceedings relating to the Crown’s acquisition of the land at Maioro, the establishment of the New Zealand iron and steel industry and the Crown’s attempts to settle Ngāti Te Ata’s historical treaty grievances (the 2013 proceedings). The plaintiff alleges breach of fiduciary duty. It seeks equitable damages and declarations of trust under the Declaratory Judgments Act 1908 in relation to the same property subject of
the 2014 proceedings. Dame Nganeko Minhinnick was later joined as second plaintiff. Riki Minhinnick was substituted as second plaintiff following her death.
[4] For reasons it is unnecessary to go into, various fixtures for the proceedings have been vacated. The cases are now to go to a joint hearing scheduled for three weeks to commence on 4 June 2019. The parties are agreed that the overlapping factual and legal subject matter between the two proceedings means that only one set of evidence will be required across both. A timetable is in place to ensure readiness for trial.
Parties
[5] As it is accepted the Attorney-General can properly represent the relevant Crown respondents, the former Ministers, the Hon David Butcher and the Hon Murray Luxton, have been removed from the 2014 proceedings.
[6] However, the parties cannot agree on who the appropriate plaintiffs should be in the 2013 proceedings and who the appropriate counterclaim plaintiff should be in the 2014 proceedings.
[7] The issue is whether Ngāti Te Ata is a legal person capable of bringing an action in this Court. The Ngāti Te Ata interests submit that the hapu is a legal person in the form of a body corporate at tikanga which the law should recognise.1 The Attorney-General and NZ Steel do not accept that Ngāti Te Ata has legal personality.
Current applications
[8] To resolve the issue the plaintiffs in the 2013 proceedings have applied to join Ngāti Te Ata as a plaintiff in that proceeding either in its own right or in replacement of the existing first plaintiff Te Ara Rangatū O Te Iwi O Ngāti Te Ata Waiōhua Incorporated. The application is opposed by the Attorney-General and NZ Steel.
[9] In the 2014 proceeding the Attorney-General has applied for an order staying the counterclaim until a plaintiff with standing to prosecute the counterclaim is presented to the Court for joinder and, in the event a suitable party is not brought forward for substitution within 30 days of the order, for an order striking out the cross- claim. The Attorney-General argues that the existing counterclaim plaintiff, Ngāti Te Ata, has no such standing.
[10] NZ Steel has applied for a similar order staying the counterclaim by Ngāti Te
Ata on the same basis.
1 I use the expression hapu or iwi rather than tribe as those expressions were used interchangeably by counsel for Ngāti Te Ata, but as noted in Law Commission Waka Umanga: A Proposed Law for Maori Governance Entities (NZLC R92, 2006) at [4.2]–[4.3], “tribes” take many forms but may be considered an appropriate term for Maori social organisations of compact groups characterised by common descent.
Background
[11] At the outset it can be recorded that the existence and mana of Ngāti Te Ata is accepted by the Attorney-General and NZ Steel. The issue is whether Ngāti Te Ata has legal personality so as to enable it to institute and pursue legal proceedings in this Court.
[12] By way of background the plaintiff says Ngāti Te Ata formed its relationship to the land at Maioro by virtue of various tikanga, including that of tupunatanga (ancestry), whakapapa (genealogy), haputanga (kinship), and mana.2 The plaintiff says (and I do not understand there to be any dispute for present purposes):
(a) Te Ata I Rehia, who lived in about 1600, is the eponymous tupuna
(ancestor) of Ngāti Te Ata;
(b)The descendants and adherents of Te Ata I Rehia subsequently formed and united as Ngāti Te Ata;
(c)Ngāti Te Ata came to hold and deal with land and property, congregate at various pā kāinga (villages or settlements), regulate their own social order, and incur obligations, all of which continued in uninterrupted succession for some 400 years up to the present;
(d) Ngāti Te Ata predated the Crown’s presence in Aotearoa New Zealand;
(e)In 1840 Ngāti Te Ata entered into Te Tiriti O Waitangi with the Crown, the terms of which expressly acknowledge ngā (multiple) hapu;
(f)In 1994 the Māori Appellate Court found that Maioro was included in the rohe (region or territory) of Ngāti Te Ata.
2 Basic translations of some concepts have been provided to assist those who may be unfamiliar with Te Reo Māori.
(g)In 2014 the Crown assented to Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014. The Act records and acknowledges Ngāti Te Ata as one of the iwi and hapu comprising the collective group.
The Ngāti Te Ata case
[13] Mr Kahukiwa submitted that the present proceedings involve Ngāti Te Ata’s rights to whenua tupuna (ancestral land) at Maioro, which derive from tikanga and fundamentally by virtue of Ngāti Te Ata’s status.
[14] Ngāti Te Ata is a recognised iwi and hapu at tikanga. It is an entity distinct from its members. Tikanga is part of or at least taken into account in the common law of New Zealand where it has not been abrogated by statute.3
[15] Parliament has also recognised legal personality in a matter sourced in tikanga. In 2017, it declared Te Awa Tupua (the Whanganui River) a legal person, acknowledging its status as an ancestral river.4
[16] While the High Court Rules 2016 require a party to be a person the rules do not expressly define a person. Nor do they prohibit an iwi or hapu from being named a plaintiff. A person is defined in s 29 of the Interpretation Act 1999 as including a corporation sole, a body corporate and an unincorporated body which is broad enough to include Ngāti Te Ata.
[17] Mr Kahukiwa submitted that legal personality in terms of the general idea of a corporation, being a fictitious legal person distinct from the persons who compose it, is very old.
[18] Ngāti Te Ata demonstrates the characteristics of a corporation, namely continuity and a distinct entity. The source of its authority is found in its longevity and, in this case, its cognisance at tikanga.
3 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733; and Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277. See also Nireaha Tamaki v Baker [1901] AC 561 (PC).
4 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 14(1).
[19] Mr Kahukiwa noted the Crown has not objected to the status of Ngāti Te Ata in the past. It has engaged with it on Te Tiriti O Waitangi and the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014. Further, it took no issue with Ngāti Te Ata’s status in what is now the 2014 proceedings from 1990 until recently.
[20] Mr Kahukiwa also pointed to other cases where proceedings have been advanced in the name of hapu and iwi without objection being taken.
[21] Next, Mr Kahukiwa emphasised the Supreme Court has made it clear that a high degree of flexibility must be allowed for the way in which Maori ought to be able to bring claims, particularly against the Crown, consistent with the principles of Te Tiriti O Waitangi and the United Nations Declaration on the Rights of Indigenous People (UNDRIP).5
[22] Mr Kahukiwa submitted Ngāti Te Ata should be able to be named as a plaintiff to the 2013 proceedings and should remain as counterclaim plaintiff in the 2014 proceedings. He noted that if it were removed from the 2014 proceeding limitation issues may arise.
[23] While very much an alternative, Mr Kahukiwa submitted that, even if the Court were to find Ngāti Te Ata does not meet the factual requirements of a corporation or legal person the allegation it is a corporation, or a person with proper interest (which remains to be determined at trial) is a sufficient ground to join it as a plaintiff under r 4.2 of the High Court Rules.
The counter argument
[24] The Attorney-General and NZ Steel argue there is no ability to sue in the name of a collective or group at common law. Both proceedings seek to invoke private law remedies or redress against the Crown affecting others, so the claimant is required to have legal personality at common law. This is not a treaty claim.
5 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 per Elias CJ at
[491]–[492].
[25] The only recognised exception to the general rule that an unincorporated body, association or group has no legal personality, is where statute has expressly or by necessary implication treated an unincorporated body as being a legal entity distinct from its members either generally or for specific purposes.
[26] The present situation is different from such statutory regimes which confer legal personality on non-natural persons, such as the Te Awa Tupua (Whanganui River Claim Settlement) Act 2017. The fact that statutory authority is required to provide legal personality supports the contrary argument that hapu or iwi lack legal personality without such mechanisms.
[27] The fact Ngāti Te Ata was joined as a respondent to the judicial review proceedings by NZ Steel in order to enable submissions to be made did not confer legal personality on Ngāti Te Ata to advance positive claims for relief as a plaintiff.
[28] While Mr Kinsler accepted that, on a limited number of occasions, an iwi or hapu has been named on the intituling to a judgment, he noted there appeared to be no cases where the issue of the requirement for legal personality had been the subject of argument. The issue was considered in Ngāti Te Ata v The Minister for Treaty of Waitangi Negotiations.6 Whata J ruled that, although the proceedings had been commenced in the name of Ngāti Te Ata, for the purpose of any orders to be made the plaintiff would be the incorporated entity which executed the undertaking as to damages in support of the interim orders.7
[29] The practice has been for members of an iwi or hapu to pursue claims either as individuals on a representative basis or through an incorporated entity or trust.8
[30] NZ Steel argue the fact there is longstanding recognition of the right of a member of a collective, such as an iwi, who has authority in accordance with tikanga to represent the iwi, reflects the underlying point that iwi do not have legal personality
6 Ngāti Te Ata v The Minister for Treaty of Waitangi Negotiations [2017] NZHC 2058.
7 The first plaintiff in the current 2013 proceedings.
8 Ngāti Whātua Ōrākei Trust v Attorney-General [2016] NZHC 347; Ngāti Mutunga O Wharekauri
Asset Holding Co Ltd v Attorney-General [2017] NZHC 2482, [2018] NZAR 18; and Wai-O-Tapu
Ltd Partnership v Trustees of Ngati Tahu Ngati Whaoa Runanga Trust [2018] NZHC 1003.
and cannot sue. That established position appropriately incorporates tikanga into New Zealand common law by requiring a person representing an iwi to be mandated in accordance with tikanga. It is also consistent with numerous statutes that provide for iwi to manage relations through corporate entities established under legislation. It enables the Court to form a view on the mandate of the parties said to represent iwi interests and thus the consent of those interested parties to the representation. It ensures the participants are persons against whom the Court’s orders and judgments will operate and bind.
Discussion
The legal personality required to bring proceedings in the High Court
[31] Part 4 of the High Court Rules provides for parties. Rule 4.1 provides the number of persons named or joined as parties must be limited as far as practicable to persons whose presence before the Court is necessary to justly determine the issues arising in the proceedings and persons who ought to be bound by any judgment given. Party as defined means “any person who is a plaintiff or a defendant or a person added to a proceeding”. Plaintiff in turn is defined as meaning “the person by whom or on whose behalf a proceeding is brought”. Person is not defined in the rules.
[32] As noted, Mr Kahukiwa relied on the definition of person in the Interpretation Act 1999 which defines person to include a corporation sole, a body corporate and an unincorporated body.9 He submitted that Ngāti Te Ata met this definition because it was a body corporate at tikanga. However, there is an important distinction between a collective of people that is recognisable and identifiable as a distinct entity, body or person itself, and the legal personality required to bring proceedings.
[33] As John Salmond in Jurisprudence said:10
Although all fictitious or legal personality involves personification, the converse is not true. Personification in itself is a mere metaphor, not a legal fiction. Legal personality is a definite legal conception; personification, as such, is a mere artifice of speech devised for compendious expression. … [For example] We speak of the estate of a deceased person as if it were itself a person. We say that it owes debts, or has debts owing to it, or is insolvent.
9 Section 29.
10 John W Salmond Jurisprudence (Stevens & Haynes, London, 1902) at 344.
The law, however, recognises no legal personality in such a case. The rights and liabilities of a dead man devolve upon his heirs, executors, and administrators, not upon any fictitious person known as his estate. … So, also, in the case of common interests and actions, we personify as a single person the group of individuals concerned, even though the law recognises no body corporate. We speak of a firm as a person distinct from the individual partners. We speak of a jury, a bench of judges, a public meeting, the community itself, as being itself a person instead of merely a group or society of persons. But legal personality is not reached until the law recognises, over and above the associated individuals, a fictitious being which in a manner represents them, but is not identical with them.
[34] Mr Kahukiwa also referred to an 1888 article in the Harvard Law Review on the history of business corporations.11 Sutton’s Hospital, an English case from 1612 noted in that article, held the lawful authority of a corporation may be established by four means, namely, common law, by authority of Parliament, by King’s Charter and by prescription.12 Mr Kahukiwa relied on the common law and prescription to argue Ngāti Te Ata met the definition of a corporation.
[35] However, with respect, that does not address the point referred to above, namely that there is a distinction between a collective of people that exists as a distinct entity, body or person itself, and the legal personality required to bring proceedings.
[36] There is also force in Mr Smith’s submission that historic examples of corporations recognised by English common law are not directly relevant. In New Zealand there is a recognised statutory basis for the incorporation of non-legal persons which for instance provides for companies under the Companies Act 1993, incorporated societies under the Incorporated Societies Act 1908, local authorities under the Local Government Act 2002, and statutory entities under the Crown Entities Act 2004. This suggests a clear legislative policy in relation to legal personality.
[37] Next, Mr Kahukiwa referred to a passage from Felix Cohen’s Handbook of
Federal Indian Law which he suggested showed that indigenous collective customary groups may have capacity to sue:13
11 Samuel Williston “History of the Law of Business Corporations before 1800” (1888) 2 Harv L Rev 105.
12 At 113.
13 Felix S Cohen Handbook of Federal Indian Law (reprint ed, William S Hein, Buffalo, 1988) at
277.
The term “corporation” however, is frequently used in a broader sense, as when it is stated, for instance, that the City of London, or the United States, is a body corporate, even though a charter of incorporation cannot be discovered.
… In this sense, we may say that Indian tribes have been assigned corporate status for many different purposes. Among these purposes are the right to sue, the capacity of being sued, the capacity to hold and exercise property rights not vested in any of the members of the tribe, the power to execute contracts that bind the tribe even when in the course of time its entire membership has changed, and the separation of tribal liability from the liability of tribal members.
However, when the passage referred to is read in context it does not fully support that proposition. The immediately following passage is:
Various general statutes on Indian depredations, for instance, have authorized suits by injured citizens of the United States against Indian tribes whose members had committed such depredations. None of these statutes imposes individual liability upon the members of the tribe; the liability imposed is purely tribal. It is, in the sense of above defined, corporate, and has been so described by the Court of Claims.
[38] Relevantly, it is settled in New Zealand that an unincorporated body of persons may not bring proceedings.14 Greig J in Hawke’s Bay Bulk Gas Users Group v The Commerce Commission endorsed what he described as:15
…the clear and invariable policy and practice of the Courts that only an incorporated person, or such other person as may be specifically recognised as such, can sue or be sued in the Courts. The reason is that neither judgment nor costs can be enforced by or against an unincorporated person, an entity which is unknown in law.
[39] Commonly, such members of an unincorporated body can only sue in their own names, or if a representation order is made. Unincorporated bodies may also, in certain instances, pursue litigation through a representative.
[40] Recognising the constraints caused by such rules the Courts have adopted a flexible approach to ensure parties can bring their claims to Court. A recent example is the case of Quake Outcasts v Minister for Canterbury Earthquake Recovery where an unincorporated group of uninsured Christchurch residential red zone landowners
14 Hawke’s Bay Bulk Gas Users Group v The Commerce Commission (1988) 4 NZCLC 64,147 (HC);
New Zealand Law Society v McCutcheon CA16/93, 18 May 1993 at 3.
15 Hawke’s Bay Bulk Gas Users Group v The Commerce Commission, above n 14.
known as “The Quake Outcasts” sued as individuals but all 46 members’ names and addresses were provided in a schedule to the statement of claim.16
[41] An exception to the general rule that an unincorporated body, association or group has no legal personality is where statute has expressly or by necessary implication treated an unincorporated society or group as being a legal entity distinct from its members either generally or for specific purposes.17
[42] Several statutes have been held to empower an unincorporated body to bring or defend proceedings or appeals in certain circumstances.18 In these decisions, the Courts have required clear legislative intent before departing from the general rule that unincorporated bodies are non-entities at law.
[43] In the present case the claims Ngāti Te Ata wish to pursue can be pursued by the current plaintiff in the 2013 proceedings, or by a duly authorised representative of Ngāti Te Ata. There is no Act which provides Ngāti Te Ata with corporate identity which would enable it to pursue the claim. Mr Kahukiwa referred to the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014. He submitted that the Act expressly included Ngāti Te Ata as one of the iwi and hapu of its schema. That is correct, but the Act defined Ngāti Te Ata as one of the collective group of iwi and hapu for the purposes of the Act, not for any broader purpose.
[44] There are also general Acts and treaties which recognise hapu in one form or another, such as Te Tiriti O Waitangi, the Land Claims Ordinance 1841, the Native Lands Act 1862, and various other statutes, including the Resource Management Act
1991, and the Fisheries Act 1996. However, the Acts do not prescribe corporate identity to iwi or hapu for general purposes. Most provide for the establishment of
mandated iwi organisations to hold assets or otherwise to undertake specific roles for
16 Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27, [2016] 1 NZLR
1.
17 Campbell v Scott [1995] 2 NZLR 345 (HC) at 354–355.
18 The Commerce Act 1986 in Hawke’s Bay Bulk Gas Users Group v The Commerce Commission, above n 14, at 7; the Friendly Societies and Credit Unions Act 1982 in Campbell v Scott [1995] 2
NZLR 345 (HC) at 355; and, in the criminal context, the Summary Proceedings Act 1957 and the
Resource Management Act 1991 in Cometa United Corp v Canterbury Regional Council [2007] NZRMA 266 (HC) at [70].
the particular purposes of the relevant Acts. Treaty settlements are vested in legal persons constituted under relevant legislation.19
[45] While standing is a different issue to whether a person has legal personality to bring a claim, the discussion of standing in Proprietors of Wakatū v Attorney-General by the Supreme Court is of some general assistance.20
[46] In Wakatū the Supreme Court accepted that a person authorised by the iwi or hapu may represent the group of iwi or hapu as a whole. A person such as a kaūmatua or rangitira was approved as an appropriate person to represent the iwi or hapu. Importantly though, in none of the judgments was there a suggestion that the iwi or hapu could pursue the proceedings itself in its own name, notwithstanding the flexible approach taken to standing. If that was an obvious solution to the issue, one would expect it to have been raised.
[47] After noting that there were indications in some English cases of a wider approach to standing more reflective of public law principles, at least where declaratory relief only was sought and noting that any person with an interest in the outcome may have standing, the Chief Justice went on to say:21
[491] In Manitoba Métis the Supreme Court of Canada stressed the importance of taking into account the collective nature of indigenous claims when assessing standing. The Court in that case was prepared to recognise the standing of an incorporated body that represented the collective interests of the individual Métis claimants. In this Court, in Paki v Attorney-General (No
1), it was suggested that it may be possible to draw a distinction between those entitled to bring a representative claim and those who will benefit from any remedy granted. Such flexibility is desirable when Māori collective interests are involved. Failing to be responsive to this reality would render the law deficient. It is also difficult to reconcile with the United Nations Declaration
on the Rights of Indigenous People, to which New Zealand is a signatory, which recognises a right to redress for lands taken or used without the free and
informed consent of its customary owners. … A narrow approach to standing does not accord with the principles expressed by the Declaration.
[48] On that basis the Chief Justice was prepared to permit Mr Stafford as a beneficiary of the tenths reserves to claim relief in the proceedings for breach of trust
19 For example, Te Runanga O Ngai Tahu Act 1996.
20 Proprietors of Wakatū v Attorney-General, above n 5.
21 Citations omitted.
or fiduciary duty. Any beneficiary was entitled to have such matters investigated by the Court. She also agreed with the Court of Appeal that Mr Stafford’s customary authority as acknowledged kaumātua of part of the collective of customary owners permitted him to bring a representative claim without the need to seek a formal representative order. The Chief Justice observed that Chiefs of high standing have long advanced such collective claims.
[49] Glazebrook J also made a number of pertinent observations regarding the place of tikanga in this area:
[670] Where there is a collective claim, it would not be unusual for an issue to arise as to the appropriate plaintiff, if indeed there is (particularly in modern times) only one appropriate plaintiff in all cases. The appellants’ submit that decisions on the appropriate plaintiff or plaintiffs should be decided according to tikanga, which is part of the values of the New Zealand common law.
[671] I would accept that this would normally be the case. Tikanga, however, can vary between different iwi and hapu and it can evolve and develop over time. Further, individual rights may also have arisen, as a result of historical developments (for example in this case as beneficiaries of the trust). There may also be issues as to the rights of smaller collective groups (such as hapu) against a wider collective group (the iwi). In her book, Indigenous Rights and United Nations Standards, Dr Alexandra Xanthaki acknowledges such possible conflicts but points out:
… conflicts between rights is a common phenomenon in human rights; apart from the general distinction between derogatory and non-derogatory rights, no predetermined hierarchy exists. Any such conflicts between rights, principles and norms are generally solved on an ad hoc basis, after taking into account various considerations. The same process must be used in conflicts between individual and collective rights.
Before concluding:
[673] A flexible approach to facilitate claims of this nature, rather than one that obstructs such claims with procedural hurdles, is to be preferred. I would hold that all three appellants have standing to bring the claim relating to the breach of trust, which is how the claim was ultimately run. Mr Stafford had the right to bring the claim in his own right as a beneficiary of the trust and as a rangatira. Wakatu could bring the claim as a representative of the beneficiaries or as a successor trustee Wakatu’s corporate structure and the fact that the members of Wakatu do not coincide totally with the descendants of those on the 1893 list meant that the third appellant was a necessary addition and therefore also has standing.
[50] Arnold and O’Regan JJ also agreed that a representative of the claimant group could pursue a claim on behalf of the group and also confirmed the place of tikanga in this area as follows:
[804] We acknowledge that there is precedent for a rangatira of a claimant group involving rights of indigenous people to bring the claim on behalf of the claimant group, as the Chief Justice notes in her judgment and as was noted by the Court of Appeal. Mr Galbraith argued that this practice was also consistent with tikanga.
[805] The matter is not clear cut in the present case because Mr Stafford is a kaumātua of Ngāti Rārua and Ngāti Tama, but not of all of the collective group whom he seeks to represent. It does, therefore, call for some extension of the principle that a rangātira may sue on behalf of a collective group which appears to be founded on the basis that the rangātira, as leader of the collective group itself, is mandated by tikanga to pursue a claim on its behalf. That is not the case in relation to Mr Stafford.
[51] Mr Kahukiwa’s submission that while an individual may represent a tribe, that does not preclude a tribe from bringing a claim itself is, with respect, an assertion not supported by relevant authority.22
[52] Under s 30 of Te Ture Whenua Maori Act 1993 the Maori Land Court may determine and advise other courts who the most appropriate representatives of a class or group of Maori are in recognition of that Court’s specialist focus and knowledge of tikanga. Mr Kahukiwa’s response was that was in relation to mandate or agency, not whether Ngāti Te Ata has legal personality. That is correct as far as it goes, but the fact the Act provides for such a process again supports the argument the iwi or hapu itself does not have legal personality.
[53] The position the Supreme Court reached is consistent with the way indigenous rights have been treated in overseas jurisdictions. There are a number of relevant examples from Canada for instance.
[54] In Kelly v Canada (Attorney General) the Ontario Superior Court of Justice noted the applicable principles included:23
22 See for example: Ngāti Whātua Ōrākei Trust v Attorney-General; Ngāti Mutunga o Wharekauri Asset Holding Co Ltd v Attorney-General; and Wai-o-Tapu Ltd Partnership v Trustees of Ngati Tahu Ngati Whaoa Runanga Trust, above n 6, cases where recognised legal entities were employed to pursue proceedings.
23 Kelly v Canada (Attorney General) 2013 ONSC 1220.
•the interpretation of a treaty between Canada and a group of aboriginals seeking a declaration of rights under the treaty was justiciable;
•as the rights were communal rights and the Court’s decision would bind all rights holders it was necessary that all persons affected by the decision be before the Court;
•if the rights holders were an Indian band, it could by resolution authorise an action against the Crown; [notably for present purposes an Indian band while not an incorporated body is a statutory body and a legal entity, with a number of powers, including the power to sue or be sued];
•if the rights holders under the treaty were an unincorporated association they could only sue if the Court authorised a representative action.
[55] In a number of other cases the Canadian courts have recognised that where the collective does not have the legal capacity to sue in its own name its claims must be asserted by some individual members suing in a representative capacity on behalf of the group.24
[56] In Kwicksutaineuk/Ah-Kwa-Mish First Nation v Canada (Attorney General) the British Columbian Court of Appeal left the issue open but noted there was no evidence the “collectives” were organised in a way that could confer legal status.25
[57] In Manitoba Metis Federation Inc v Canada (Attorney General), the Supreme Court of Canada heard a claim by the Federation for rights based on events following annexation of land.26 But importantly the claim was brought by a recognised statutory federation. The Court was prepared to recognise the standing of such an incorporated body that represented the collective interests of the individual Metis claimants.
24 Oregon Jack Creek Indian Band v Canadian National Railway Co [1989] 2 SCR at 1069; Soldier v Attorney-General of Canada 2006 MBQB 50; and Papaschase Indian Band v Canada (Attorney General) 2004 ABQB 655.
25 Kwicksutaineuk/Ah-Kwa-Mish First Nation v Canada (Attorney General) 2012 BCCA 193.
26 Manitoba Metis Federation Inc v Canada (Attorney General) 2013 SCC 14, [2013] 1 SCR 623.
[58] While the present issue has apparently not been directly before this Court in New Zealand before, it was considered briefly by Whata J in the case of Ngāti Te Ata v Minister for Treaty of Waitangi Negotiations.27 The Judge noted the practical difficulties with the proposal and dealt with the matter sensitively but pragmatically:
[5] The pleadings refer to Ngāti Te Ata as the applicant. While the existence and mana of Ngāti Te Ata is not disputed by the Crown, the capacity to sue in the name of Ngāti Te Ata is challenged. There are problems for the Court with commencing proceedings in the name of an iwi or hapu, in particular the practical inability to make or enforce orders against persons whose membership of the named party is determined by whakapapa. I assume for present purposes that counsel have authority, in accordance with tikanga, to commence proceedings in the name of Ngāti Te Ata. That being the case, I am content to refer to the applicant as Ngāti Te Ata within the body of this judgment. However, for the purpose of any orders to be made in these proceedings, the plaintiff will be Te Ara Rangatu O Te Iwi O Ngāti Te Ata Waiohua Inc (1920008), the entity which executed the undertaking as to damages in support of interim orders.
[59] In each of the cases referred to by counsel where the issue of standing has arisen the Court has approved standing on the basis an individual or a recognised legal entity had standing or on the basis that a legal entity existed which could take a representative action. The plaintiffs have made it clear they do not wish to pursue such a course in this case.
[60] Mr Kahukiwa also referred to Te Pou Minhinnick’s affidavit of 31 August 2018 and submitted it disclosed that Ngāti Te Ata has had in place a Tumu Whakarae (a specific leader) for some time now, currently succeeded to by Te Pou Minhinnick, and that he had agreed Ngāti Te Ata could be a party to these claims. But in a way, that is in itself an acknowledgement that the tikanga recognised by Ngāti Te Ata is that the iwi can act through others. It does not provide the iwi with legal personality.
The nature of the claims
[61] The nature of the claims sought to be pursued in the two sets of proceedings are relevant to this issue. It is relevant the plaintiff proposes to advance claims for
27 Ngāti Te Ata v The Minister for Treaty of Waitangi Negotiations, above n 6, (footnote omitted).
The cases involving proceedings where the issue was not raised include Ngāti Hurungaterangi v Ngāti Wāhiao [2016] NZHC 3156; overturned: Ngāti Hurungaterangi v Ngāti Wāhiao [2017] NZCA 429; and Manuiriangi v Ngä Hapu o Ngä Ruahine Iwi Inc [2011] NZAR 166 (HC), where “Ngä Ruahine Iwi” was listed as a plaintiff together with the named plaintiffs.
equitable remedies based on alleged fiduciary duties and constructive trusts and seeks substantive relief in both sets of proceedings.
[62] The proposed claims are quite different in nature from the Treaty settlement process undertaken with the Crown or even claims before the Waitangi Tribunal. The Courts have consistently held that Treaty mandate issues are in the political domain and are non-justiciable for the purposes of judicial review.28
Practical issues
[63] There are also practical issues which are relevant, although not determinative. Either Ngāti Te Ata has legal personality or it does not. As counsel for NZ Steel submits, if Ngāti Te Ata is to be the plaintiff it is not clear precisely who the judgment will bind. The claim seeks a declaration that the land on which NZ Steel undertakes its mining operations pursuant to the mining licence are held on trust and are to be transferred. As membership of Ngāti Te Ata is determined by whakapapa and tikanga, there is uncertainty over who would be bound by the Court’s orders. There are also the not insignificant issues of liability for and enforcement of the judgment and any costs orders in the event the proceedings are ultimately unsuccessful.
[64] I note that Parliament, in declaring Te Awa Tupua a legal person, was alive to the practical issues that would follow. It established the office of Te Pou Tupua to exercise or perform Te Awa Tupua’s rights, powers and duties, and to take responsibility for its liabilities.29 There are no equivalent mechanisms that Ngāti Te Ata could rely on to resolve the practical uncertainties that would arise if it were deemed to be a legal person.
Joinder in the 2014 proceedings
[65] The fact that Ngāti Te Ata was joined to the 1990 proceedings does not, of itself, support its argument that it may pursue the counterclaim it wishes to advance in the 2014 proceedings.
28 Kai Tohu O Puketapu Hapu Inc v The Attorney-General HC Wellington CP344/97, 5 February
1999 at 14–15; Manuiriangi v Nga Hapu O Nga Ruahine Iwi Inc [2011] NZAR 166 (HC) at [35]
and [37].
29 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, ss 14(2) and 18.
[66] Ngāti Te Ata was joined to the 1990 proceeding as a respondent to enable it to be heard and make submissions in response to NZ Steel’s application.
[67] Mr Timmins, counsel for NZ Steel at the time, did not oppose and counsel for the Crown interests consented. Importantly, the application for joinder was under s 10(2)(b) of the Judicature Amendment Act 1972 and relied on s 3 of the Act which included an extended definition of person to include “a corporation sole, and also a body of persons whether incorporated or not …”. In making the order for joinder Hillyer J relied on the extended definition of person in the Judicature Amendment Act. There was no suggestion of a claim being made by Ngāti Te Ata at that time. That was not the basis upon which it was joined.
[68] The counterclaim or cross-claims which Ngāti Te Ata now seeks to pursue in the 2014 proceedings include declarations that land taken pursuant to the Public Works Act 1928 which was subsequently set aside as State forest land under the Forest Act
1949 and then for the purposes of the Iron and Steel Industry Act 1959 were inter alia in breach of the fiduciary duty owed by the Crown to Māori and were made for improper purposes and are unlawful and of no effect.
[69] Orders are sought declaring the Crown holds the lands upon trust together with declarations that the Crown acted in breach of trust and in breach of its fiduciary duty. Orders are also sought setting aside such agreements and licences as invalid and related and consequential declarations and orders.
[70] Alternatively, it is pleaded that the Crown breached an agreement of 24
September 1990 for re-interment of burials in the lands, and an order is sought obliging the Crown to perform the contract by transferring the Wahi Tapu lands to Ngāti Te Ata and to cause the lands to be removed from the operation of the Iron and Steel Industry Act and that a sufficient remedy for NZ Steel is damages.
[71] The claims sought to be pursued in the counterclaim (or cross-claim) are substantive, and seek substantive orders of the Court affecting legal rights of NZ Steel and the Crown. Legal personality is required to advance them. The extended
definition of “person” in the 1972 Act does not override the settled principle that only legal entities may sue in private law.
Post hearing submissions
[72] At the conclusion of the hearing Mr Kahukiwa sought leave to make further submissions in light of the Supreme Court’s recent decision in Ngāti Whātua Ōrākei Trust v Attorney-General.30 Counsel exchanged submissions on the issues raised by that case. Mr Kahukiwa submitted the case was relevant because it confirmed the importance of Maori rights that derived from tikanga. He noted the case did not mention that the iwi could not pursue the rights in its own name and again recognised the significance of the UNDRIP.
[73] With respect to those submissions however I accept the further submissions for the Attorney-General and NZ Steel, namely that, to the extent the case is at all relevant to the present issue the parties that represented the interests of iwi were all orthodox legal entities, namely trusts and a limited partnership. In the context of the judgment the use of the reference to “Ngati Whatua Orakei” was shorthand for the appellant.
Limitation issue
[74] Mr Kahukiwa raised the issue that Ngāti Te Ata might face a limitation defence if it was replaced in the 2014 proceedings. Given the Attorney-General and NZ Steel have not taken the point regarding the status of Ngāti Te Ata before now it would be unfair to permit a limitation defence to be raised. The position should, however, be clarified by the Attorney-General and NZ Steel filing memoranda confirming that, without prejudice to other defences that may be available, they will not take a limitation point against any substituted plaintiff to the counterclaim in the 2014
proceedings.
30 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84.
Result/orders
[75] The plaintiffs’ application in the 2013 proceedings for the joinder of Ngāti Te
Ata in its own right or to replace the existing first plaintiff is dismissed.
[76] The Attorney-General and NZ Steel’s applications in the 2014 proceeding are granted on terms. The counterclaims are stayed until a plaintiff with standing to prosecute the counterclaim is presented to the Court for joinder and if that does not occur within 30 working days of the Attorney-General and NZ Steel filing the limitation memorandum referred to above in [74], leave is granted to the Attorney- General and NZ Steel to apply to have the counterclaim struck out.
Costs
[77] The Attorney-General and NZ Steel are entitled to costs on both applications on a 2B basis together with disbursements as fixed. While the costs are fixed in the Attorney-General’s and NZ Steel’s favour they are to be reserved and ultimately taken into account when the substantive proceedings are completed.
Venning J
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