Te Ata v Minister for Treaty of Waitangi Negotiations
[2017] NZHC 2058
•25 August 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-1050 [2017] NZHC 2058
BETWEEN NGATI TE ATA
Applicant
AND
THE MINISTER FOR TREATY OF WAITANGI NEGOTIATIONS
First Respondent
HER MAJESTY THE QUEEN Second Respondent
NGATI TAMAOHO SETTLEMENT TRUST
Third Respondent
REGISTRAR GENERAL OF LAND Fourth Respondent
Hearing: 4 August 2017 Counsel:
J P Kahukiwa and I B Kwan-Parsons for Applicant
S M Kinsler and C J C Pouwels for First and Second
Respondents
T T Kapea for Third Respondent
N C Anderson for Fourth RespondentJudgment:
25 August 2017
JUDGMENT OF WHATA J
This judgment was delivered by me on 25 August 2017 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Corban Revell, Auckland
Crown Law, Wellington
NGATI TE ATA v THE MINISTER FOR TREATY OF WAITANGI NEGOTIATIONS [2017] NZHC 2058 [25
August 2017]
[1] Ngāti Te Ata challenges the decision by the Minister for Treaty of Waitangi Negotiations (the Minister) to dispose of two properties1 classified as right of first refusal land (RFR land) by the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (the Collective Redress Act). Ngāti Te Ata makes two claims. First, the Minister has no express power to dispose of RFR land in circumstances where a mana whenua iwi objects to the disposal. Alternatively, any decision to
dispose of RFR land is unreasonable where another mana whenua iwi was objecting and had taken steps to resolve the matter.
[2] The Minister submits removal of land from the RFR mechanism for the purpose of individual Treaty of Waitangi settlements is expressly enabled by the Collective Redress Act, and the land which was removed forms part of a Treaty settlement package agreed with Ngāti Tamaoho.
[3] A curious feature of this case is that the transfer of the two properties at issue (the early transfer properties) is not conditional on the draft Bill before Parliament seeking to ratify the settlement with Ngāti Tamaoho. The Minister nevertheless submits the decision to dispose of the properties, as part of a Treaty settlement, is a political decision and consequently non-justiciable.
[4] With the benefit of argument, the central questions in this case therefore are:
(a) Is the decision by the Minister to dispose of the properties for the purpose of an individual Treaty settlement justiciable?
(b)Does the Minister have the power to dispose of RFR land for the purpose of an individual Treaty settlement?
(c) Is a decision by the Minister to dispose of RFR land for Treaty settlement purposes unreasonable where another mana whenua iwi
objects to it and has taken steps to resolve the matter?
1 Lot 8 DP 51794, Certificate of Title NA102D/981, located at 725 Great South Road, Wiri, and
Sec 23 Survey Plan 435724, Certificate of Title NA581486, located at 112 Bairds Road, Ōtara.
The applicant
[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 hapū, in particular the practical inability to make or enforce orders against persons whose membership of the named party is
determined by whakapapa.2 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.
Background
[6] The background to this proceeding has two parts: the first dealing with the Collective Redress Deed and Act, the second with the Ngāti Tamaoho negotiations and settlement.
The Collective Redress Deed and Act3
[7] On 9 June 2006, the Crown and Ngāti Whātua o Ōrākei (Ngāti Whātua) entered into an agreement in principle providing for the settlement of Ngāti Whātua’s historical claims. The proposed settlement involved, among other things, a right of first refusal to lands located within Tāmaki Makaurau.
[8] The other iwi and hapū with mana whenua in Tāmaki Makaurau brought an
urgent claim before the Waitangi Tribunal, pointing to process failures, and unhappy
about the content of the draft settlement which they said offered Ngāti Whātua
2 Rule 4.24 of the High Court Rules 2016 provides for representative actions. But this requires the consent of all persons represented and is not the basis advanced by Mr Kahukiwa for filing in the name of the iwi.
3 For a full account of the background see Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, especially [12]-[28], [43]-[47], and [51]-[56].
opportunities and assets without sufficient regard to their equally strong interests.4
The Tribunal delivered its report on 12 June 2007. It laid out a strong critique of the Crown’s approach, which it said primarily “damages whanaungatanga”, overlooking that:5
… When the Crown deals with one group in settlement negotiations, everything it does affects others who have interests in and connections to the area that is the subject of the negotiation. Often, the affected groups are kin to the settling group; always, they are neighbours. They all share history, interests in land, and whakapapa. In Tāmaki Makaurau, which has been intensively occupied by successive groups for generations, the layers of interests are complex and intense.
[9] In terms of commercial redress, the overriding concern of the objecting iwi and hapū was that the Crown would not be able to offer them anything equivalent to what was offered to Ngāti Whātua.6 More specifically, their concerns were, among others, that there was insufficient information for them to properly analyse the commercial redress offered, and that the right of first refusal offered to Ngāti Whātua was over areas where other mana whenua iwi and hapū had interests, with some offered sites being of particular cultural significance.7
[10] Notably, the Crown’s case before the Tribunal was that it dealt fairly with
‘overlapping claimants’ in the pre-agreement in principle period, and that it would again meet with those claimants in the period following the proposed agreement being put in place.8 It also emphasised that sites in the right of first refusal area were for commercial, not cultural, redress, and that the applicants were conflating the two concepts.9
[11] The Tribunal did not accept the Crown’s position. It found:10
The Crown’s dealings with overlapping claimants without Tribunal involvement do not inspire confidence in the Crown’s willingness to respond to those claimants’ concern without that kind of incentive. Cabinet itself has approved the terms of the agreement in principle, and would need to approve any changes to them. The Ngāti Whātua o Ōrākei negotiating team would
4 Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007) at 1.
5 At 2.
6 At 71.
7 At 72.
8 At 76.
9 At 80.
10 At 95.
also need to agree to any change to the terms of the agreement in principle being made in the deed of settlement. Accordingly, we consider that it is the parties’ intention and expectation that the redress proposed in the agreement in principle will be the settlement redress unless something substantial upsets that plan. This is why this Tribunal does not accept the Crown’s submission that our involvement is premature.
[12] It also observed:11
… a right of first refusal (a form of exclusive redress) is not usually available on a property in an area subject to unresolved ‘overlapping’ claims. Ngāti Whātua o Ōrākei have been offered rights of first refusal over multiple properties in such an area. Moreover, the Office of Treaty Settlements’ evidence about the nature of Ngāti Whātua o Ōrākei’s interests is inconsistent. We were told that the right of first refusal area was not one in which Ngāti Whātua o Ōrākei are recognised as having exclusive interests. Yet in documents from the Office of Treaty Settlements to their Minister, Ngāti Whātua o Ōrākei’s interests in the right of first refusal area are described as being exclusive …
[13] And finally:12
Although others have customary interests in the Ngāti Whātua o Ōrākei Right of First Refusal Area, Ngāti Whātua o Ōrākei’s right of first refusal is not framed so as to take account of those: they have exclusive rights there in respect of any of the Crown’s properties that become surplus. This has consequences for groups who may have cultural ties to those sites. The Crown has not accounted for this possibility in its framing of redress for Ngāti Whātua o Ōrākei …
[14] Turning to the principles of the Treaty of Waitangi, the Tribunal found a number of inconsistencies in the Crown’s approach. Primarily, it found the Crown failed to fulfil its duty to act reasonably, honourably and in good faith, by failing to fully inform itself before making material decisions affecting Māori, including by not adequately weighing overlapping claims or adequately consulting and involving people concerned in deliberations.13
[15] The Tribunal’s principal concern was with the fairness to other mana whenua iwi and hapū of the Ngāti Whātua agreement:14
We think that the Crown must afford the other tangata whenua groups in
Tāmaki Makaurau that appeared before us the opportunity to enter into a
11 At 97.
12 At 99.
13 At 100-101.
14 At 107.
negotiation and settlement relationship with the Crown. This is because we believe the Crown cannot say right now with any confidence that it knows enough about all the groups’ relative interests to be awarding exclusive rights to any, nor to be precluding the possibility that exclusive rights may need to be awarded to any. Nor can the Crown say with any confidence that its offer of commercial redress to Ngāti Whātua o Ōrākei does not undermine its ability to benefit the other groups similarly, because:
· it has not valued what it is offering to Ngāti Whātua o Ōrākei;
·it does not know whether other properties comparable to those in the North Shore Naval housing area can be made available to other claimants; and
·it has not taken into account whether the offer of areas of rights of first refusal to Ngāti Whātua o Ōrākei will overlap with sites of cultural significance to the other tangata whenua groups.
[16] In response, the Crown entered into negotiations with a collective of Tāmaki iwi, Ngā Mana Whenua o Tāmaki Makaurau (the Tāmaki Collective)15 about collective redress with respect to:
(a) vesting of maunga and certain motu located within the Tāmaki
Makaurau and co-governance of specified reserves; and
(b) a collectively held right of first refusal for 170 years to purchase
surplus land held by the Crown in Tāmaki Makaurau.
[17] Out of those negotiations, the Crown and the Tāmaki Collective concluded a
Collective Redress Deed on 8 September 2012.
The Deed
[18] The Collective Redress Deed was conditional on legislation coming into force, and envisaged (among other things):
(a) the enactment of legislation to give effect to its terms;
15 Ngā Mana Whenua o Tāmaki Makaurau comprises Ngāti Tai ki Tāmaki, Ngāti Maru, Ngāti Pāoa, Ngāti Tamaoho, Ngāti Tamaterā, Ngāti Te Ata, Ngāti Whanaunga, Ngāti Whātua o Kaipara, Ngāti Whātua Orākei, Te Ākitai Waiohua, Te Kawerau ā Maki, Te Patukirikiri and hapū of Ngāti Whātua (whose members are beneficiaries of Te Runanga o Ngāti Whātua, including Te Taoū not descended from Tuperiri).
(b)the establishment of legal entities necessary for the implementation of its terms;
(c) vesting of specified maunga and motu in the Tāmaki Collective;
(d) co-governance of specified reserves; and
(e) a right of first refusal in relation to specified RFR land vested in a limited partnership, namely the Whenua Haumi Roroa o Tāmaki Makaurau Limited Partnership (the Limited Partnership).
[19] Most relevant for present purposes is cl 6 of the Deed, which provides for a right of first refusal as follows:
THE STATUTORY RIGHT
6.1The limited partnership is to have a right of first refusal in relation to a disposal by the Crown or a Crown body of RFR land.
6.2 The right of first refusal is to be on the terms provided by sections
116 to 151 of the draft bill and, in particular, will apply –
6.2.1 for a term of 172 years from the effective date; and
6.2.2 only if the RFR land –
(a) is vested in, or the fee simple estate in it is held by, the Crown on the effective date and the land is not occupied by a tertiary education institution other than one named in part 4 of the attachments;
(b) in the case of land described in part 4 of the attachments, is held in fee simple by a Crown body; and
(c) is not being disposed of in the circumstances referred to in sections 120(2) and 120(3) of the draft bill.
LAND REQUIRED FOR COMPREHENSIVE SETTLEMENTS
6.3The iwi and hapū of Ngā Mana Whenua o Tāmaki Makaurau record their agreement that the RFR is not to apply to any land (including a cultural redress property or land used for financial and commercial redress) that is required for the settling of historical claims under the Treaty of Waitangi, being those relating to acts or omissions of the Crown before 21 September 1991.
6.4To give effect to that agreement, the Tāmaki Makaurau collective legislation will, as provided by section 119 of the draft bill, provide for the removal of any land required for another Treaty settlement.
…
[20] Clause 119 of the Bill, on its first reading on 2 July 2013, stated:
119 Land required for another Treaty settlement ceasing to be RFR
land
(1) The Minister for Treaty of Waitangi Negotiations must, for RFR land required for another Treaty settlement, give notice to both the RFR landowner and the Limited Partnership that the land ceases to be RFR land.
(2) The notice may be given at any time before a contract is formed under section 126 for the disposal of the land.
(3) In this section, RFR land required for another Treaty settlement means RFR land that is to be vested or transferred as part of the settling of historical claims under the Treaty of Waitangi, being those relating to acts or omissions of the Crown before 21 September
1992.
Collective Redress Act
[21] The Collective Redress Act received royal assent on 31 July 2014. The preamble records:
(1) The iwi and hapū constituting the collective known as Ngā Mana Whenua o Tāmaki Makaurau have claims to Tāmaki Makaurau based on historical breaches of the Treaty of Waitangi (Te Tiriti o Waitangi) by the Crown:
(2) Settlement of these claims is progressing through negotiations
between the Crown and each individual iwi and hapū:
(3) At the same time, the Crown has been negotiating other redress with
Ngā Mana Whenua o Tāmaki Makaurau –
(a) that relates to certain maunga, motu, and lands of Tāmaki
Makaurau; and
(b) in respect of which all the iwi and hapū have interests; and
(c) in respect of which all the iwi and hapū will share:
…
(8) On 7 June 2012, the Crown and Ngā Mana Whenua o Tāmaki Makaurau initialled a deed encapsulating the agreed redress arising from the Framework Agreement and the Record of Agreement:
(9) On 8 September 2012, representatives of the Crown and Ngā Mana
Whenua o Tāmaki Makaurau signed the deed:
(10) To implement the deed, legislation is required.
[22] The purpose of the Act is stated at s 3:
3 Purpose of Act
The purpose of this Act is to give effect to certain provisions of the collective deed, which provides shared redress to the iwi and hapū constituting Ngā Mana Whenua o Tāmaki Makaurau, including by—
(a) restoring ownership of certain maunga and motu of Tāmaki Makaurau to the iwi and hapū, the maunga and motu being treasured sources of mana to the iwi and hapū; and
(b) providing mechanisms by which the iwi and hapū may exercise mana whenua and kaitiakitanga over the maunga and motu; and
(c) providing a right of first refusal regime in respect of certain land of Tāmaki Makaurau to enable those iwi and hapū to build an economic base for their members.
[23] Section 6, which provides an outline of the Act’s overall scheme, records at subs (5):
6 Outline
…
(5) Part 4 provides for commercial redress, including—
(a) a right of first refusal in relation to RFR land that may be exercised by the Whenua Haumi Roroa o Tāmaki Makaurau Limited Partnership (the Limited Partnership) or the rōpū entities; and
(b) authorisation for the transfer of former deferred selection properties to the Limited Partnership to give effect to the collective deed.
[24] Section 7 states:
7 Interpretation of Act generally
It is the intention of Parliament that this Act is interpreted in a manner that best furthers the agreements expressed in the collective deed.
[25] Ngā Mana Whenua o Tāmaki Makaurau, or the Tāmaki Collective, is defined to mean the collective iwi and hapū who entered the Collective Deed, including Ngāti Te Ata and Ngāti Tamaoho.16
[26] Part 4 of the Act addresses commercial redress and establishes a right of first refusal process, by which specified Crown land within Tāmaki Makaurau (that is, RFR land) must be offered to the Limited Partnership or a rōpū entity.17 Section 117 defines RFR landowner as follows:
117 Interpretation
RFR landowner, for RFR land,—
(a) means the Crown, if the land is vested in the Crown or the
Crown holds the fee simple estate in the land; and
(b) means a Crown body, if the body holds the fee simple estate in the land; and
(c) includes a local authority to which RFR land has been disposed of under section 129(1); but
(d) to avoid doubt, does not include an administering body in which RFR land is vested on the effective date or (under section 130(1)) after the effective date
[27] Section 118(1) defines the land subject to this mechanism as RFR land, which includes the properties in issue in this proceeding. It states:
118 Meaning of RFR land
(1) In this Act, RFR land means—
(a) the land within the RFR area, but only if, on the effective date, the land—
(i) is vested in the Crown and not occupied by a tertiary education institution; or
16 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 9. See [16] above.
17 Rōpū entity is defined in s 8 as meaning “the Marutūāhu rōpū entity, the Ngāti Whatua rōpū entity, and the Waiohua Tāmaki rōpū entity”.
(ii) is held in fee simple by the Crown and not occupied by a tertiary education institution; or
(iii) is a reserve vested in an administering body that derived title to the reserve from the Crown and that would, on the application of section 25 or 27 of the Reserves Act 1977, revest in the Crown; and
(b) former deferred selection RFR land; and
(c) the land described in table 1 of part 4 of the attachments to the collective deed, but only if, on the effective date, the land is held in fee simple by a Crown body; and
(d) the land obtained in exchange for a disposal of RFR land under section 134(1)(c) or 135; and
(e) the land described in table 2 of part 4 of the attachments to the collective deed, but only if, on the effective date, the land is—
(i) vested in or held in fee simple by the Crown and occupied by Unitec; or
(ii) vested in or held in fee simple by Unitec; and
(f) the land described in table 3 of part 4 of the attachments to the collective deed, but only if, on the effective date, the land is—
(i) vested in or held in fee simple by the Crown and occupied by the University of Auckland; or
(ii) vested in or held in fee simple by the University of
Auckland
[28] Section 118(2) records when land ceases to be RFR land. Primarily, this occurs on transfer to the Limited Partnership or to a rōpū entity or any other person pursuant to the RFR scheme.18 Additionally, if RFR land is required for another Treaty settlement, it ceases to be RFR land when notice is given for the land under s
120.19
[29] Relevantly s 120 (like s 119 of the Bill) states:
120 Land required for another Treaty settlement ceasing to be RFR
land
18 Section 118(2)(a).
19 Section 118(2)(d).
(1) The Minister for Treaty of Waitangi Negotiations must, for RFR land required for another Treaty settlement, give notice to both the RFR landowner and the Limited Partnership that the land ceases to be RFR land.
(2) The notice may be given at any time before a contract is formed under section 127 for the disposal of the land.
(3) In this section, RFR land required for another Treaty settlement means RFR land that is to be vested or transferred as part of the settling of historical claims under the Treaty of Waitangi, being the historical claims relating to acts or omissions of the Crown before 21
September 1992.
[30] Section 121 imposes restrictions on the disposal of RFR land in the following terms:
121 Restrictions on disposal of RFR land
(1) An RFR landowner must not dispose of RFR land to any person other than the Limited Partnership or a rōpū entity (or the Limited Partnership's or rōpū entity's nominee) unless the land is disposed of under subsection (2) or (3).
(2) The RFR land may be disposed of under any of sections 128 to 141 or under anything referred to in section 142(1) or in accordance with a waiver or variation given under section 151.
(3) The RFR land may be disposed of within 12 months after the expiry date of an offer by the RFR landowner to dispose of the land to the Limited Partnership if the offer to the Limited Partnership was—
(a) made in accordance with section 123; and
(b) made on terms that were the same as, or more favourable to the Limited Partnership than, the terms of the disposal to the person referred to in subsection (1); and
(c) not withdrawn under section 125; and
(d) not accepted under section 126.
[31] Subsections (2) and (3) refer to a detailed scheme for disposal, which includes a requirement to offer RFR land to the Limited Partnership20 and other contractual matters such as offer expiry date, withdrawal, acceptance,21 and contract
formation.22 Other disposals are also provided for, including disposal to the Crown,23
20 Section 123.
21 Sections 124-126.
22 Section 127.
23 Section 128.
local authorities,24 disposals to give effect to existing obligations,25 disposals under certain legislation, for public works and other specified public or charitable purposes,26 and disposals to specified persons.27
[32] Sections 144-147 set out specific notice requirements for the disposal of RFR land. Relevantly s 145 provides for notice of land ceasing to be RFR land. Subsections (1)-(3) deal with notice of transfers in accordance with the standard RFR disposal procedures. Subsections (4)-(6) deal with land in relation to which notice pursuant to s 120 has been given.
[33] Section 148 provides for the memorialisation of RFR land. The Registrar- General must record on the register that the land is RFR land as defined in s 118, and is subject to subpart 1 of Part 4, which restricts disposal, including leasing, of the land. Section 149 then deals with removal of memorials. The chief executive of Land Information New Zealand (LINZ) must, before registration of the transfer or vesting of land described in a notice under s 145(2) or (5) , issue to the Registrar- General a certificate that, in short, identifies the land, the details of the transfer, and states that it is issued under subs (1).
The Ngāti Tamaoho negotiations and settlement28
[34] Ngāti Tamaoho signed an agreement in principle with the Crown in December 2012, recommencing negotiations in August 2015. By mid-April 2016, a redress package was agreed. This package included the early transfer of the two properties this proceeding concerns.
[35] On 14 April 2016, officials at the Office of Treaty Settlements (OTS) wrote to all identified overlapping claimant groups, including Ngāti Te Ata. The letter explained the overlapping claims process and encouraged Ngāti Te Ata and Ngāti
Tamaoho to reach agreement, offering to assist in any discussion if necessary. OTS
24 Section 129.
25 Sections 131-132.
26 Sections 133-138.
27 Sections 139-141.
28 This account is largely drawn from the evidence of the Minister for Treaty of Waitangi Negotiations, which was supported by a documentary record and is largely uncontroversial. But see paragraphs [42]–[51] for Mr Roimata Minhinnick’s comments on the process followed.
advised that if the overlapping claims could not be resolved, the Minister would make a decision based on the information received from Ngāti Tamaoho and the overlapping claimants.
[36] Ngāti Te Ata opposed a significant proportion of the redress. Over the next few months the two iwi tried to meet and OTS continued to offer to facilitate resolution. OTS also sought further information from Ngāti Te Ata to assist the Crown’s understanding of the basis of Ngāti Te Ata opposition. This information was considered by the Minister. OTS also undertook further research which was reviewed by an independent historian, examining overlapping interests in specific redress sites offered to Ngāti Tamaoho, including those of Ngāti Te Ata.
[37] Ngāti Te Ata was advised of the Minister’s preliminary decision by letter on
13 July 2016, including that Ngāti Tamaoho had agreed to have the property located at 112 Bairds Road, Otara (one of the properties under dispute) treated as commercial rather than cultural redress. The letter noted that officials had yet to receive specific information from Ngāti Te Ata as to why it objected to the redress
offered to Ngāti Tamaoho.29 On 4 July, Ngāti Te Ata informed OTS it would take
months to respond in writing to every site it opposed, with reasons. Ngāti Te Ata also sought the reports relied upon by Ngāti Tamaoho, said to support their claims to the early transfer properties. The reports were not supplied.
[38] Ngāti Tamaoho and Ngāti Te Ata met on 26 July 2016, with OTS officials attending as observers. At this meeting, Ngāti Te Ata advised it opposed the sale of the early transfer properties to Ngāti Tamaoho, as the whenua of Te Ata I Rehia was buried at Matukutureia Mountain.
[39] Following further consideration of these issues, the Minister advised Ngāti Te
Ata of his final decision on 10 August 2016. The early transfer properties were then
included in the Ngāti Tamaoho Deed of Settlement that was signed on 30 April 2017.
29 Mr Minhinnick states neither he nor the Ngāti Te Ata negotiators received this request until 6
July 2016.
The Ngāti Tamaoho Deed of Settlement
[40] For present purposes, the key components of the formal Deed are:
(a) The customary historical account of Ngāti Tamaoho, acknowledgment
of, and apology by the Crown for, historical Treaty breaches.
(b)An acknowledgment that the Deed represents final settlement of historical claims, releasing the Crown from its obligations and liabilities.
(c) Cultural redress, including acknowledgment of Ngāti Tamaoho cultural, spiritual, historical and traditional association with various areas in Tāmaki Makaurau, and provision for co-governance in respect of certain areas. Two properties, in Clarks Creek and Karaka, are also to vest in the Ngāti Tamaoho governance entity on settlement, with a Hūnua Falls property to vest jointly in Ngāti Tamaoho and other iwi.
(d) Commercial redress, including a total transfer of value of
$10,300,000.
(e) Explicit terms, in cls 8.1.3, 8.3 and 9.6.1, that the transfer of certain “early transfer properties” is not conditional on settlement legislation coming into effect.
[41] The sale and purchase agreement for the early transfer lands was signed on
28 April 2017, the day on which the Minister gave notice under s 120.30
Ngāti Te Ata
[42] Mr Roimata Minhinnick provides a detailed account of the source of the
mana whenua of Ngāti Te Ata. He identified, among other things, the significance of
the maunga, Matukutureia, to Ngāti Te Ata as follows:31
30 It appears that the agreement pre-dated the s 120 notice by a matter of hours. This technically infringes the RFR scheme, but I do not consider this to be material.
(a) Matukutureia is the mauri of Ngāti Te Ata, where the life-force of the iwi resides, because the founding ancestor of Ngāti Te Ata, Te Ata I Rehia, was born on its peak and her whenua (afterbirth) returned to the whenua (land), embodying the notion of tangata whenua (the people of the land).
(b)It is located at the end of Wiri Station Rd. Matukutureia was referred to as Te Tumu Whakarae (“the seat of authority”) where great meetings of council were held to determine the politics of the region. It is also the place of a large battle site in which the great Ngāti Te Ata chief Te Rangi Ha Hautu defended the pa from attack.
(c) Today, Te Mano Whenua o Matukutureia (“the heartland of Matukutureia”) sits in the cultural shadow of Matukutureia Maunga. The puhinui awa stream flows from the Manukau Harbour and hugs the shoreline of Matukutureia Maunga, before drifting past Te Manurewa o Tamapahure (“The Fling Kite of Manurewa”) and
reaching Te Mano Whenua o Matukutureia, or Barrowcliffe.32
[43] He also records:
Ko Matukutureia te mauri o Ngāti Te Ata
I reira i whanautia ai ia Te Ata I Rehia
O raro iho tona whenua i hoki panumia
I atawhai te tikanga o te tangata whenua
Hei toi ake tatou no Papatuanuku
Matukutureia enshrines the life-force of Ngāti Te Ata
It is where Te Ata I Rehia, the namesake of Ngāti Te Ata was born
And her whenua returned to the whenua
31 Mr Minhinnick is Chief Executive Officer of Te Ara Rangatu O Te Iwi O Ngāti Te Ata Waiohua
Incorporated (192008).
32 I interpret from a photo attached to this commentary that the Great South Road property sits within this heartland.
Recognising the law that represents the people of the land
Acknowledging Ngāti Te Ata as the offspring of mother earth
[44] Mr Minhinnick also referred to the maintenance of ahi kā and kaitiakitanga by Ngāti Te Ata.
[45] As he explained:
The issue for Ngāti Te Ata is not only how much land is available for Ngāti Te Ata settlement when we do settle, but whether there is land available near to the most prominent cultural feature of Ngāti Te Ata history. Our founding ancestor, Te Ata i Rehia was born there so it is the place to which the “mauri” of Ngāti Te Ata is squarely situated. It is also where our tupuna, Te Rangihahautu fought to hold on to those lands and from that battle the name of the pa was enshrined, Matukutureia, “The Vigilant Bittern Standing Alert”.
[46] Mr Minhinnick was highly critical of the processes adopted by the Crown in respect of both Ngāti Te Ata and Ngāti Tamaoho settlement negotiations. He refers to, on the one hand, the unilateral decision by the Minister to pause negotiations with Ngāti Te Ata in 2014. On the other hand, he notes that Ngāti Te Ata was only given a few weeks to respond to OTS’s invitation to comment on the redress package.
[47] Mr Minhinnick also provided a detailed chronology of events surrounding engagement with OTS and Ngāti Tamaoho. It is similar to the account given above, but includes additional salient observations:
(a) On 13 June 2016, OTS requested that Ngāti Te Ata provide rationale for its opposition to aspects of the Ngāti Tamoho settlement by 17
June 2016, but the letter was not received until 6 July 2016.
(b)Ngāti Te Ata sought kanohi ki te kanohi (face to face) dialogue with Ngāti Tamaoho, but Ngāti Tamaoho were unwilling to address issues about cultural associations.
(c) On 28 June 2016, OTS requested Ngāti Te Ata provide further information, but Ngāti Te Ata responded that it would take months to respond with reasons to every site it opposed.
(d)On 8 July 2016, Ngāti Te Ata sought reports obtained by Ngāti Tamaoho said to support their connection to the lands. That request was refused.
(e) On 19 July 2016, Ngāti Te Ata sought more time, but on 26 July met with OTS and Ngāti Tamaoho and provided detailed reasons for opposition to transfer of a number of sites including the Great South Road site.
(f) On 27 July 2016, Ngāti Te Ata made a further request for engagement.
[48] In his reply affidavit, Mr Minhinnick responds to the report of the independent reviewer relied on by the Minister, which was only obtained by Mr Minhinnick as part of these proceedings. He was also highly critical of it, noting:
(a) The author of the report is not identified.
(b)There is an absence of traditional oral or kaumatua customary evidence.
(c) The material relied upon was not put to Ngāti Te Ata. By contrast, the material evidence of Ngāti Te Ata’s traditional belonging to the area has been shared with the Crown.
(d)The historical evidence supports the conclusion that Ngāti Te Ata’s interests are older and greater than those asserted by Ngāti Tamaoho.
[49] Mr Minhinnick also provided a history in support of Ngāti Te Ata’s superior ancestral claims to the early transfer properties, referring to historical records. By way of summary Mr Minhinnick referred to:
(a) Historical records said to establish Ngāti Te Ata’s connection to properties at Te Karaka and Pukekohe and by contrast, illustrate the illegitimacy of claims by Ngāti Tamaoho to those lands.
(b)Evidence that Ngāti Tamaoho had attempted sale of land with which they had a dubious customary connection, including land at Kahawai and Ramarama.
(c) Historical records said to support the customary basis for the relationship of Ngāti Te Ata with the Tuhimata Block, near Ramarama.
(d)Historical accounts of tensions between Ngāti Te Ata and Ngāti Tamaoho, together with minutes from Crown officials cautioning against purchase of land without consent of Ngāti Te Ata.
(e) Armed conflict in 1845 and 1846 between Ngāti Te Ata and Ngāti Tamoho, Ngāti Te Ata victory, and reports that Ngāti Te Ata reclaimed Pehiakura from Ngāti Tamaoho.
(f) Accounts that following this conflict Ngāti Tamaoho recommenced selling land from which they had been ousted, and for which they no longer had any claim in tikanga Māori.
(g)Records showing the Crown was aware of Ngāti Te Ata claims to the land Ngāti Tamaoho purported to sell.
[50] Finally, Mr Minhinnick complains that the Crown has not afforded sufficient time and/or opportunity for a collective, consensus based process in accordance with tikanga for dealing with the early transfer properties. Finally, he observed that none of the witnesses for Ngāti Tamaoho identified the basis of their claim in tikanga to the early transfer properties.
Is the decision by the Minister to dispose of the properties for the purpose of an individual Treaty settlement justiciable?
[51] Mr Kinsler identified two bases for non-justiability:
(a) the principle of non-interference, as the lands form part of the background to a Settlement Bill which is currently before Parliament; and
(b)the decision to require lands for a Treaty settlement is the proper domain of the Executive, not the judiciary, being a matter which is quintessentially policy driven.
[52] It is well settled that matters contemporaneously before Parliament are non- justiciable.33 But as Mr Kinsler quite properly noted, the Crown elected to use the early transfer procedure rather than give effect to transfer through the Ngāti Tamaoho Settlement Bill. While the transfers form part of the background to the Bill, they are not subject to the Parliamentary process, so the standard principle of non- justiability based on non-interference with Parliamentary processes has no obvious
application.
[53] The second ground or principle Mr Kinsler relies on was described recently by the Supreme Court in Ririnui:34
Courts have treated decisions about Treaty of Waitangi settlements as inappropriate for judicial review, not simply because they often involve legislation but also because the issues involved in settlements – such as the nature, form and amount of redress – are quintessentially the result of policy, political and fiscal considerations that are the proper domain of the executive rather than the courts.
[54] The Treaty context itself however does not preclude review.35 In the present case the decision to require RFR land for an individual Treaty settlement extinguishes, by way of the notice procedure contained in s 120, the right of first refusal in respect of those lands enjoyed by the Limited Partnership and rōpū groups. Put simply, it is a decision to take away a legal right of first refusal conferred by
statute.36 While I accept, absent a clear error of sort present in Ririnui,37 the merits of
33 Te Runanga o Wharekauri Rekohu v Attorney-General [1993] 2 NZLR 301 (CA) at 307-308.
34 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [89].
35 At [90].
36 It is unnecessary to explore the exact nature of the right of first refusal. The Court of Appeal in Bruce v Edwards [2003] 1 NZLR 515 (CA) at [54] observed that “the prevailing judicial opinion is that a right of first refusal does not give rise to an interest in land before the occurrence of a triggering event”. But in the present case, the right of first refusal is memorialised on the
a decision to settle a Treaty claim are typically non-justiciable for the reasons mentioned in that case, the legality of the s 120 notice, in terms of conformity with the requirements the Collective Redress Act, is a reviewable matter.38
Does the Minister have the power to dispose of RFR land for the purpose of an individual Treaty settlement?
[55] Mr Kahukiwa for Ngāti Te Ata contends:
(a) The primary purpose of Collective Redress Act is to give effect to the Collective Redress Deed which provides for shared redress for the Tāmaki Collective. Part of that shared redress is a statutory first right of refusal.
(b)The Act does not confer an express power on the Minister to remove RFR land: s 120 is simply a notice provision, not an empowering provision.
(c) No power to remove RFR land should be implied into the s 120 notice procedure, given the Act’s purpose to achieve collective redress and the RFR mechanism conferred by the Act.39
(d)This is reinforced by the background to the Deed and the Act, and in particular the heavy criticism by the Tribunal of the Crown’s previous approach, which gave exclusive rights to one group:40
The use of ‘predominance of interests’ as a basis for giving exclusive
rights in cultural sites to one group – even when other groups have
affected titles, connoting a legal interest in land.
37 Ririnui v Landcorp Farming Ltd, above n 34, at [90]-[91]. In that case, the Minister had
exercised a public power “based on a material error”, and consequently, had no regard to any
additional policy considerations.
38 The Supreme Court in Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27, [2016] 1 NZLR 1, dealing with the Canterbury Earthquake Recovery Act 2011, emphasised the reviewability of Crown action where the legislation “covers the field”. See
[109]-[146]. By analogy, this principle applies to redress facilitated by the Collective Redress
Act.39 Mr Kahukiwa, assisted by Mr Kwan-Parsons, cited Bluff Harbour Board v Mayors, Councillors, and Burgesses of the Borough of Campbelltown (1903) 23 NZLR 126 as authority for this proposition.
40 Waitangi Tribunal, above n 4, at 96-97.
demonstrable interests that have not been properly investigated – is a Pākehā notion that has no place in Treaty settlements. Where there are layers of interests in a site, all the layers are valid. They derive from centuries of complex interaction with the whenua, and give all the groups with connections mana in the site. For an external agency like The Office of Treaty Settlements to determine that the interests of only one group should be recognised, and the others put to one side, runs counter to every aspect of tikanga we can think of. …
(e) As such, “the power” rests with all the parties to the collective deed by virtue of the mutuality of their agreement.
[56] Mr Kinsler for the Minister responds s 120 plainly assumes a power to remove the RFR land for individual Treaty settlement purposes exists. He adds it gives effect to cls 6.3 and 6.4 of the Collective Redress Deed.
Assessment
[57] The “absence of power” argument misconceptualises the key issue. Section
120 is a notice provision, the plain effect of which removes identified properties (such as the early transfer properties) from the RFR scheme. The sole express statutory criterion for issuing notice is that the land is required for an individual Treaty settlement. A “power” to remove or dispose of the land is not therefore a requirement for the purpose of removal of land from the RFR scheme. It occurs by operation of statute.
[58] To elaborate:
(a) Section 118(2)(d) expressly provides “RFR land required for another
Treaty settlement” ceases to be RFR land once notice is given under s
120.
(b)Section 120 imposes a duty on the Minister to give notice to the RFR landowner and the Limited Partnership that land ceases to be RFR land when it is required for another Treaty settlement.
(c) Once the Minister’s notice is given, the RFR landowner must give notice to the chief executive of LINZ that the land ceases to be RFR land.41
(d)The chief executive must issue to the Registrar-General a certificate in respect of the property and the s 120 notice.42
(e) The Registrar-General must then remove any memorial on the title identifying the land as RFR land.43
[59] This scheme gives effect to cls 6(3) and (4) of the Collective Redress Deed, reinforcing the conclusion that the literal effect of ss 118(2)(d), 120, 145(5) and
149(2) was intended.
[60] In Bluff Harbour, cited by Mr Kahukiwa, Williams J granted an injunction against a purported exercise of a statutorily conferred power to compulsorily acquire land to construct waterworks. The Council had previously granted a licence to use the affected lands for the purpose of waterworks, and sought to use the power to take over the existing waterworks. In reaching this conclusion, the Judge cited the rule of interpretation laid down by Lord Cottenham and approved by Lord Westbury in Simpson v Staffordshire Waterworks Company that it is incumbent upon the company
seeking to take land:44
… to prove clearly and distinctly from the Act of Parliament the existence of a power which they claimed a right to exercise; and if there was any doubt with regard to the extent of the power claimed by them that doubt undoubtedly should be for the benefit of the landowner, and should not be solved in a manner to give the company any power that was not most clearly and expressly defined in the statute.
[61] The policy of the law to narrowly construe enactments purporting to enable compulsory acquisition of property is undoubted.45 But this case is not about the
41 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 145(5).
42 Section 149(2).
43 Section 149(5).
44 Bluff Harbour Board v Mayors, Councillors, and Burgesses of the Borough of Campbelltown, above n 39, at 129, citing Simpson v Staffordshire Waterworks Company 34 LJ Ch 380.
45 Waitakere City Council v Estate Homes [2006] NZSC 112, [2007] 2 NZLR 149 at [45], citing Taggart, “Expropriation, Public Purpose and the Constitution”, in Forsyth (ed), The Golden Metwand and the Crooked Cord (1998), 104-105. In this case, however, the Supreme Court
compulsory taking of land by the Crown. Rather, the Crown is simply removing Crown land from the RFR scheme to settle an individual Treaty claim. It needs no additional “power” of the kind lacking in those cases. The early release of the two properties under the Collective Redress Act is simply a function of the giving of notice pursuant to s 120, with no antecedent requirement to exercise a statutory power of removal or disposal. The real issue, addressed below, is whether the Crown’s decision to require RFR land for an individual Treaty settlement is fettered by the Collective Redress Act.
[62] If Mr Kahukiwa were to advance a broader challenge, namely that the Minister does not have a power per se to dispose of Crown lands for Treaty settlement purposes, I would reject it for the reason stated by Mr Kinsler. The existence of a power to dispose of Crown lands for Treaty settlement purposes is plainly assumed by the Collective Redress Deed and the Act and is incidental to their effective operation, including for the purpose of requiring RFR land for individual
Treaty settlements.46
[63] Accordingly, the claim based on absent power is dismissed.
Is a decision by the Minister to dispose of RFR land for Treaty settlement purposes unreasonable where another mana whenua iwi objects to it and has taken steps to resolve the matter?
[64] Mr Kahukiwa submits the entire purpose of the Collective Redress Deed and Act was to enable specified lands to be managed through a collective iwi process so that mana whenua could be properly recognised in accordance with tikanga. This, he says, gave effect to the directions given by the Waitangi Tribunal and the intentions of the Tāmaki Collective. The individual Treaty settlement exception contemplated
at cl 6 of the Deed and s 120 of the Act has to be interpreted and applied in light of
noted that the ordinary application of planning law does not extinguish existing rights because it
does not constitute a “taking”.
46 See R (New London College Ltd) v Home Secretary [2013] UKSC 51, [2013] 1 WLR 2358 at
[28]-[29], per Lord Sumption, and [34]-[36], per Lord Carnwath. See also Philip Joseph
Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington,
2014) at [18.3.3(3)]. The power to dispose of land in this context may also derive from the prerogative of the Crown to discharge its obligations arising under the Treaty. In terms of prerogative powers, see Laker Airways Ltd v Department of Trade [1977] QB 643 (CA). As this aspect was not argued before me, I do not reach a final view.
this purpose. The error made by the Attorney-General was to remove the two early transfer properties for Ngāti Tamaoho’s Treaty settlement without first exhausting the collective diplomacy required by the Act, in accordance with tikanga. In these circumstances, Mr Kahukiwa claims the s 120 notice was unreasonable.
[65] Mr Kinsler responds that the ability to remove land from the RFR scheme for individual Treaty settlements was always intended by the signatories of the Deed. He also contends:
(a) Ngāti Te Ata’s approach effectively amounts to a veto preventing the
vesting of land for individual Treaty settlement purposes.
(b)A veto of this kind would have been a very notable aspect of the collective redress agreed to, and one would expect the Collective Redress Deed or Act to record it.
(c) By contrast, the Deed and the Act expressly envisage that RFR land may be required for an individual Treaty settlement and provide a process for that to occur.
Threshold test
[66] Ordinarily a decision will be unreasonable in a public law sense if it is so unreasonable that no reasonable decision-maker could ever have reached it in the circumstances. This test is known as the Wednesbury unreasonableness test.47
However, the Wednesbury reasonableness test has been doubted,48 particularly in
cases involving fundamental rights. The courts tend to be less tolerant of Crown
47 Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223; see also Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA).
48 Most recently, in Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR
508, an alternative formulation of this threshold, consistent with the grounds on which the court will identify an error of law (as stated in Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3
NZLR 721 at [26]) has been proposed: see Hu at [22]-[32]. On this formulation, a decision will be unreasonable where the decision-maker’s decision is so unsupportable as to amount to an error of law, because proper application of the law requires a different answer. This may arise where the decision is not supported by evidence, where the evidence contradicts the decision, or where the only reasonable conclusion contradicts the determination.
interference with such rights.49 As this aspect was also not fully argued, I will adopt the most favourable approach to Ngāti Te Ata.
Assessment
[67] As Mr Kahukiwa submits, in general terms the purpose of the Collective Redress Act is to enable shared redress via specified processes for dealing with Crown land in Tāmaki Makaurau. This is evident from the background to the Act, including the Tribunal claim and report,50 the Collective Redress Deed, the Act’s purpose section, and the detailed and carefully scripted scheme of the Act as it relates to various forms of redress. An interpretation of the Act, including s 120 and related sections, that is consistent with this purpose, is to be preferred, as is one that best furthers the Collective Redress Deed.51
[68] But the object and effect of cl 6 of the Deed and s 120 is clear. It is a notice provision. It imposes a duty, not a discretionary power, on the Minister to notify the RFR landowner and Limited Partnership that specified land is required for an individual Treaty settlement. Provided the land is required for that type of settlement, once notice is issued the land ceases to be RFR land. There is no room to overlay the explicit words at s 120 with an additional collective decision-making process once the decision to require specified land for an individual Treaty settlement has been made.
[69] Similarly, a decision to require land for an individual Treaty settlement cannot be unreasonable simply because another iwi may have a genuine tikanga based interest in that land, and because consensus is not achieved. I agree with Mr Kinsler that would effectively amount to a veto, disenabling the use of land for individual Treaty settlements. This cannot be right, given the clear effect of s 120 of
the Act and cl 6(3) of the Deed.
49 See Philip Joseph, above n 46, at [24.2], [24.5.1].
50 It should be noted that the claim in relation to commercial redress was primarily concerned with providing all iwi with sufficient information about available commercial redress. Notably, the
primary recommendation pertaining to commercial redress was: “With respect to commercial
redress, we recommend that the Crown funds the other tangata whenua groups in Tāmaki Makaurau to enable them to analyse the redress on offer to Ngāti Whātua o Orākei, and form a view on what other available commercial redress is comparable.” See Waitangi Tribunal, above n 4, at 108.
51 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 7.
[70] This disposes of the pleaded claims. However, for completeness, I have examined whether the Minister has otherwise acted in good faith and reasonably. In doing so, I apply a standard which is not so obviously discordant with the scheme.
Was the Minister’s decision otherwise unreasonable?
[71] The requirements of good faith and reasonableness in this context are not capable of precise definition and, in any event, were not fully argued. But, again adopting an approach favourable to Ngāti Te Ata, there is a principled basis for the proposition that the Minister could not in good faith52 or reasonably trigger the s 120 notice procedure without first considering the claims of other iwi with a genuine interest in the RFR lands, and to the extent practical, facilitating them.53 As the Tribunal observed, in awarding land as commercial redress, the Crown should account for the possible consequences for other iwi and hapū with cultural ties to that area.54 Section 7 of the Collective Redress Act explicitly directs readers to interpret it in a manner that “best furthers the agreements expressed in the collective deed”. Furthermore, context permitting, the Treaty of Waitangi is an aid to interpretation.55 It is difficult to think of a more permissible context, absent express incorporation. It can be assumed therefore operation of s 120 was not intended to facilitate breach of the Crown’s duties under the Treaty to other iwi and hapū with genuine tikanga based interest in land in dispute.
[72] Having reviewed the evidence, I am satisfied the Minister acted in good faith and reasonably. First, the Minister was well aware of Ngāti Te Ata concerns and endeavoured to facilitate consensus between Ngāti Te Ata and Ngāti Tamaoho.
Second, OTS sought information from Ngāti Te Ata to assist the Crown
52 The requirement to exercise statutory powers in good faith is uncontroversial: Westminster Corporation v London and North Western Railway Co [1905] AC 426 (HL) at 430. It is also consistent with policy of the law (mentioned at [58] above) that powers extinguishing property rights should be construed narrowly.
53 This aligns with the approach taken by the Supreme Court in Quake Outcasts v Minister for Canterbury Earthquake Recovery, above n 38. The Court found that the Crown’s ability to deal with “red zone” land in Christchurch was subject to the requirements of the Canterbury
Earthquake Recovery Act 2011: see [109]-[146]. The Court also found that, in conformity with
the Act’s purpose to provide for the recovery of greater Christchurch communities, the recovery of the red zone communities had to be considered, and to the extent practical, facilitated: see [172]-[181].
54 Waitangi Tribunal, above n 4, at 99.
55 Ngaronoa v Attorney-General [2017] NZCA 351 at [39]-[52] and the cases cited therein.
understanding of the basis of Ngāti Te Ata’s opposition to the proposed redress, and the Minister considered the information provided. Third, further research was undertaken by OTS into the customary interests of both iwi in the specific early transfer sites that Ngāti Te Ata had challenged. Fourth, this research was reviewed by an independent historian. Fifth, modifications were made to Ngāti Tamaoho’s settlement package to meet concerns raised by Ngāti Te Ata, including the recategorisation of the Bairds Road property as commercial rather than cultural redress.
[73] Sixth, Ngāti Te Ata was given the opportunity to comment on the Minister’s proposed settlement package and the preliminary conclusion reached by the Minister, namely that Ngāti Tamaoho had a sufficient interest in the sites to warrant the Crown’s offer of redress and that the Crown considered there was sufficient alternative commercial redress properties available for Ngāti Te Ata in Tāmaki Makaurau. Seventh, Ngāti Te Ata also had a further opportunity to meet with Ngāti Tamaoho to resolve their respective claims. Eighth, the Minister was aware that Ngāti Te Ata identified the early transfer properties as sites of particular cultural significance, as the whenua of Te Ata I Rehia was buried at Matutukureia
Mountain.56
[74] I acknowledge the forthright criticism made by Mr Minhinnick about the process adopted, the Crown research and the basis for the claim made by Ngāti Tamaoho in respect of the early transfer properties. But it must be remembered that this is a judicial review proceeding, not a merits appeal. It is not enough to present evidence that might support a different outcome. The decision must be shown to be unreasonable. In this context, I am able to deal with Mr Minhinnick’s criticisms
briefly.
56 Other evidence also supports this. Mr Michael Dreaver, former Chief Negotiator for Tāmaki Makaurau, Hauraki and Kaipara-Mahurangi, acknowledged the transfer of properties in iwi specific settlements “has involved due thought and consideration by the Crown”, and that “the Crown has considered any objections and in some cases made changes to individual settlement offers”. On the evidence of Mr Dennis Kirkwood, trustee and Deputy Chairperson of the Ngāti Tamaoho Settlement Trust, Ngāti Tamaoho has previously ceased claims in respect of other sites due to contrary claims by other iwi, including Ngāti Te Ata.
[75] The competing customary claims of Ngāti Te Ata and Ngāti Tamaoho concern matters of considerable historical complexity and on which competing views can be validly held. Ultimately, there was a sufficient basis upon which the Minister could conclude that Ngāti Tamaoho had a legitimate historical connection to the early transfer properties. Indeed, Mr Minhinnick acknowledged that Ngāti Tamaoho had connection to the affected rohe through its whakapapa links to Ngāti
Te Ata.57
[76] Furthermore, for the purpose of judicial review, it was well within the remit of the Minister, both as to the assessment of fact and in terms of competing historical, cultural and policy considerations, to reach the conclusion that, notwithstanding the ancestral connection of Ngāti Te Ata to the early transfer properties, they should be required for settlement of the individual claim by Ngāti Tamaoho as commercial redress.
[77] Finally, contrary to the premise implicit in Mr Minhinnick’s criticism, the Minister was not, in the context of commercial redress, engaged in a definitive evaluation of the relative strength of competing interests for the purpose of allocating lands to iwi with stronger claims. To do so would invite the type of criticism levelled at the Minister by the Tribunal in The Tāmaki Makaurau Settlement Process Report, for adopting a “predominant” interest approach to recognition of customary interests. Once this is properly understood the significance of Mr Minhinnick’s criticisms are greatly diminished and fall short of showing unreasonableness or lack of good faith of a reviewable kind.
[78] For avoidance of doubt, what I say here should not influence what the Tribunal might think about the process adopted on a full inquisitorial analysis, in light of the principles of the Treaty of Waitangi.
Outcome
[79] The Minister’s decision is justiciable.
57 Reinforcing the legitimacy of their proposed commercial redress, there is also evidence that in terms of the RFR process, Ngāti Tamaoho was the only iwi to signal an interest in the Bairds Road site: Affidavit of Christine Hertzog in Opposition to Application for Judicial Review, dated
22 June 2017, at [7].
[80] No power of disposal was required for the purpose of triggering the s 120 procedure, but in any event, the existence of a power to dispose of Crown land for Treaty settlement purposes in this context is reasonably incidental to the effective operation of the Collective Redress Act, including s 120.
[81] The Minister’s decision to require the early transfer properties for an
individual Treaty settlement was not unreasonable.
[82] Accordingly, the application for review is dismissed. [83] The interim declaration made at hearing is set aside.
Costs
[84] As requested by the parties, leave is reserved to file submissions on costs, no longer than three pages in length, if costs cannot be agreed.
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