Te R�nanga o Ng�ti Wh�tua v Attorney-General
[2024] NZHC 2271
•13 August 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-418
[2024] NZHC 2271
BETWEEN TE RŪNANGA O NGĀTI WHĀTUA
Applicant
AND
THE ATTORNEY-GENERAL
Respondent
Hearing: 8 August 2024 Appearances:
M Chen and C J Saunders for Applicant
G L Melvin and D Kleinsman for Respondent
Judgment:
13 August 2024
JUDGMENT OF BOLDT J
This judgment was delivered by me on 13 August 2024 at 1:00pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mai Chen Barrister, Wellington
Te Tari Ture o Te Karauna | Crown Law Office, Wellington
TE RŪNANGA O NGĀTI WHĀTU v THE ATTORNEY-GENERAL [2024] NZHC 2271 [13 August 2024]
Introduction
[1] On 31 March 2011, the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) came into force. It repealed and replaced the Foreshore and Seabed Act 2004, which removed the right of Māori to seek recognition of customary title in the foreshore and seabed, effectively overturning the Court of Appeal’s decision in Ngāti Apa v Attorney-General.1
[2] MACA allows applicant groups to apply for orders recognising their protected customary rights and customary marine title (CMT) in marine and coastal areas/takutai moana.2 The Court may grant a CMT order if (among other things) the Court finds the applicant group has “exclusively used and occupied” a common marine and coastal area “from 1840 to the present day without substantial interruption”.3
[3] 202 applications for recognition orders under MACA have been made, and eight MACA proceedings have been finally determined. Others have been heard and have judgments pending, while several more have hearings scheduled.
[4] This Court’s decision in Re Edwards (No 2) was the first detailed judicial examination of the test for CMT under s 58 of MACA.4 On appeal, a majority of the Court of Appeal defined the threshold for CMT in a manner some observers — including Ministers in the current Government — regard as a softening of Parliament’s original legislative intent, and a watering-down of the requirements of s 58(1).5 Those observers now consider it is ‘too easy’ for applicants to make out their claims.
1 Ngati Apa v Attorney-General [2003] 3 NZLR 643 (CA). The Ngati Apa decision affirmed that Crown ownership in the foreshore and seabed was not absolute, but remained subject to Māori customary rights which existed before 1840.
2 An applicant group is defined under the Act as one or more iwi, hapū or whānau group(s) that seek recognition, including a legal entity or a natural person appointed by one or more iwi, hapū or whānau group(s) to represent that group: Marine and Coastal Area (Takutai Moana) Act 2011, s 9.
3 Section 58(1).
4 Re Edwards (Te Whakatōhea No 2) [2021] NZHC 1025, [2022] 2 NZLR 772 [Re Edwards (No 2)]. Although Re Tipene [2016] NZHC 3199 was the first decision to consider an application under MACA, that decision did not analyse the approach to CMT in the same level of detail as Churchman J in re Edwards or the Court of Appeal in the decision that followed.
5 Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board [2023] NZCA 504, [2023] 3 NZLR 252.
[5] The Court of Appeal’s decision was released after last year’s general election and during the negotiations to form the coalition Government. The coalition agreement between the New Zealand National Party and New Zealand First included a clause committing the new Government to:6
Amend section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent, in light of the judgment of the Court of Appeal in Whakatohea Kotahitanga Waka (Edwards) & Ors v Te Kahui and Whakatohea Maori Trust Board & Ors [2023] NZCA 504 [sic].
[6] On 25 July 2024, the Minister for Treaty of Waitangi Negotiations, the Hon Paul Goldsmith, issued a press release confirming the Government’s intention to make good on that clause (the Press Release).7 The Press Release announced that Cabinet had agreed to introduce legislation which, if passed, would “overturn the reasoning of the High Court and Court of Appeal in Re Edwards”.
[7] The Press Release also announced Cabinet’s agreement that the newly-tightened s 58, if passed, would come into force with retrospective effect from the date of the Press Release. It indicated that while existing CMT orders will continue to be recognised, any proceedings which have been heard, but are not finally determined, will have to be decided under the new test. Similarly, the Press Release announced that any proceedings which have not yet been heard must be determined under the (as-yet-undrafted, let-alone-enacted) new law.
[8] The applicant, Te Rūnanga o Ngāti Whātua (Ngāti Whātua), is involved in two MACA proceedings — the Whangārei Harbour and Whangārei Coast proceedings. Whangārei Harbour was heard between 12 February and 6 May 2024, and the decision is reserved. Whangārei Coast is scheduled to begin on 19 August 2024, and is expected to run until 14 October. Ngāti Whātua is understandably dismayed at the prospect of both proceedings having to be reheard if the proposed legislation is enacted.
6 Coalition Agreement: New Zealand National Party & New Zealand First (24 November 2023) at 10.
7 See [22] below.
[9] Also on 25 July, the Minister sent a letter to all MACA applicants seeking their views on how two specific aspects of the Act should be amended (the Letter), though he also invited applicants to draw any other relevant matters to his attention.8 According to the Letter, the deadline for consultation on the proposed legislation is 5.00pm on 15 August 2024.
[10] On 30 July 2024, Ngāti Whātua filed a statement of claim seeking declarations that the Press Release breaches art 1 of the Bill of Rights 1688, that the Letter breaches rights to natural justice under s 27(1) of the New Zealand Bill of Rights Act 1990 (BORA) and that the Government’s policy decision to make the test for CMT more stringent breaches s 20 of BORA. It also seeks damages in respect of the alleged BORA breaches.
[11] Then, on 5 August 2024, Ngāti Whātua filed an interlocutory application seeking an urgent declaration. As discussed in more detail below, the proposed terms of that declaration changed as the week went along. The most recent formulation is a declaration that “the Minister observes the principles of natural justice in consulting affected applicants under MACA, promised by his letter of 25 July 2024”.
[12] Put another way, in argument Ms Chen, for Ngāti Whātua, asked the Court to “supervise” the Government’s consultation process. As a first step, Ngāti Whātua wants more time. It says it cannot participate meaningfully or effectively in the consultation if the 15 August deadline remains. Ngāti Whātua says the Government has decided to consult on the proposed legislation, and that it is accordingly incumbent upon it to do so properly.
[13] I directed an urgent hearing of that application on 8 August. Given the proposed expiry of the consultation period on 15 August, this judgment has been prepared with similar urgency.
8 See [23] below.
The Marine and Coastal Area (Takutai Moana) Act
[14] As summarised by the Court of Appeal in Whakatōhea Kotahitanga Waka (Edwards):9
[1][MACA] recognises certain Māori customary interests in the marine and coastal area, meaning the area between the high-water springs and the 12 nautical mile limit of the territorial sea. MACA creates three new species of legal interest: a right to participate in conservation processes, a customary marine title (CMT) and a protected customary right (PCR). These legal interests may be granted to iwi, hapū or whānau groups. Grants are made by agreement with the Crown or, alternatively, on application to the High Court for a recognition order.
[15] This is not an occasion to examine s 58 of MACA, or the decisions in Re Edwards, in detail. That said, it may be helpful to discuss the Court of Appeal’s decision briefly, as aspects of it, and the s 58 test, are referred to in the Press Release and Letter which lie at the heart of this proceeding.
[16] In short, the majority, comprising Cooper P and Goddard J, held that an applicant who seeks to show it has “exclusively held and occupied” a common marine and coastal area need not demonstrate an intention or power to exclude others if its ability to do so was taken from it by the law as it stood.10 It also held that only lawful activities are capable of substantially interrupting a group’s use and occupation.11 The majority observed that a strictly literal reading of s 58 would be inconsistent with the purpose of MACA, and that there would be few areas where CMT could be established.12
[17] While Miller J disagreed with those aspects of the majority’s interpretation, observing they would make the s 58 test “very much easier” to meet,13 the Court was unanimous that if an applicant group can show it holds an area in accordance with tikanga, the Court may infer, in the absence of evidence to the contrary, that it has done
9 Whakatōhea Kotahitanga Waka (Edwards) v Te Kāhui and Whakatōhea Māori Trust Board, above n 5.
10 At [426]–[427].
11 At [428].
12 At [416].
13 At [188].
so since 1840.14 In other words, applicants need not prove the absence of substantial interruption.
[18] Each of those pillars of Re Edwards now stand to be dismantled, and retroactively replaced with a test which has yet to be formulated. As I have noted, Ngāti Whātua’s dismay is understandable. It is also understandable that it is looking for any means available to slow the development of the legislation, and to persuade the Government to think again. That is particularly so when it comes to aspects of the proposed amendment that are usually regarded as anathema to good lawmaking, such as the retrospective nature of the proposed change and the truncated consultation period.
[19] But regardless of the legitimacy of Ngāti Whātua’s concern, the issue for me is whether anything the Government has done in issuing the Press Release or the Letter is unlawful, and whether there is any basis on which the Court may become involved.
Policy announcements
[20] Policy work to give effect to the proposed amendment to s 58 has been underway at least since April of this year. At a meeting with fishing industry representatives in May, the Minister indicated that the proposed changes to s 58 should “reduce the 100% of coastline subject to CMT to 5%”. On 8 July 2024, Cabinet made initial decisions regarding the Government’s intention to “clarify” s 58 of MACA (the Policy Decision).15 It resolved to introduce legislation which would reverse the effect of Re Edwards and make the test for CMT more stringent.
[21] On 10 July 2024, the Attorney-General filed a memorandum addressed to the High Court and the parties involved in one of the (several) current MACA hearings, the Whangārei Coast hearing. The memorandum included the following passage:
[2] Cabinet has made initial decisions regarding the Government’s intention to clarify s 58 of the Marine and Coastal Area (Takutai Moana) Act 2011 that will have material impacts on live MACA proceedings. Those decisions are subject to confidentiality. Counsel are seeking instructions on when those
14 At [228].
15 Cabinet Minute of Decision “Clarifying Section 58 of the Marine and Coastal Area (Takutai Moana) Act 2011” (8 July 2024) CAB-24-MIN-0256.
decisions (and further supporting Cabinet decisions yet to be made) will be announced…
[22]On 25 July, the Minister issued the Press Release:
… as part of National-New Zealand First coalition agreement, the Government has agreed to propose legislation which will ensure these tests for applications directly with the Crown or through the Courts are upheld as originally intended.
These measures include:
·Inserting a declaratory statement that overturns the reasoning of the Court of Appeal and High Court in Re Edwards, and the reasoning of all High Court decisions since the High Court in Re Edwards, where they relate to the test for CMT.
·Adding text to section 58 to define and clarify the terms ‘exclusive use and occupation’ and ‘substantial interruption’.
·Amending the ‘burden of proof’ section of the Act (section 106) to clarify that applicant groups are required to prove exclusive use and occupation from 1840 to the present day.
·Making clearer the relationship between the framing sections of the Act (the preamble, purpose, and Treaty of Waitangi sections) and section 58 in a way that allows section 58 to operate more in line with its literal wording.
Cabinet also agreed that the amended section 58 test should be applied from today’s date, if enacted. This will be reflected in the proposed legislation.
This means existing CMT decisions will continue to be recognised.
All undetermined applications as of today’s date, would, if Parliament enacts these amendments, be decided under the clarified test.
This would include the limited number of applications currently before the High Court that have been heard but where there are no judgments.
The Government acknowledges that until Parliament legislates to amend the Act that the Courts are required to apply the Court of Appeal’s decision. If enacted, judgments made after today will be overturned.
Drafting of the Bill is underway. The Government’s current timetable is to seek Cabinet’s approval for introduction of the amendment Bill in mid- September.
The Act enables the legal recognition of Māori customary rights while protecting the legitimate interests of all New Zealanders in the marine and coastal area.
[23] The Press Release was accompanied by the Letter. It was addressed to all MACA applicants and explained the proposed changes. The end of the Letter read as follows:
Seeking your views on the changes
While the above changes have already been approved by Cabinet, there are two further matters that are still being considered:
·The exact clarified definitions of ‘exclusive use and occupation’ and ‘substantial interruption’; and
·What changes should be made to the framing sections of the Act (purpose, preamble, Treaty of Waitangi clause) or their effect within section 58, to allow section 58 test to be interpreted consistent with its wording.
I am seeking your views on these issues as well as any general views or concerns.
Please email [email protected] to provide your feedback. The deadline for feedback closes at 5.00pm on 15 August 2024.
Next steps
The Government intends to finalise the drafting of the Amendment Bill so it can be introduced into Parliament and passed by the end of 2024.
The speed of this legislative process reflects the Government’s desire to restore the section 58 to that intended by Parliament before more Court decisions are made on the basis of an inconsistent interpretation of the test. The Government remains committed to recognising customary rights in line with that original intent.
Effect on MACA proceedings
[24] The Press Release included a table which discussed the effect the proposed legislative amendment would have on current MACA proceedings:
| Applications/High Court Case | Location | Impact of amendment (if Parliament enacts the proposed amendments) | |
| Undetermined | All undetermined applications | Various | These applicant groups are impacted. Applications will be determined under the provisions of amended test in the new Amendment Act. |
| Rongomaiwahine | Hawkes Bay | ||
| Ngāti Koata | Top of the South Island | ||
| Te Whanau a Apanui | Bay of Plenty | ||
| Ngā hapū o Ngāti Porou | Tai Rawhiti | ||
| Whangārei Coast | Whangārei | ||
| Live cases before the courts | Whangārei Harbour | Tai Tokerau | These “live” cases will be impacted if Courts award CMT. 1. If the judgment is released on or after the date of announcement, the Act will require these cases to be re- heard under the amended test (in the new Amendment Act). Any decision to award CMT will be overturned. 2. If they are still in hearings or pending a decision when the Act is deemed to have come into force, the case will need to begin again, or provision made for the applicants to develop evidence meeting the amended test. |
| Wairarapa (1b) | Wairarapa | ||
| Re Ngā Pōtiki (2) | Tauranga | ||
| Inner Aotea Harbour | Aotea Harbour | ||
| Kāpiti-Manawatu (1a) | Kāpiti-Manawatu | ||
| Decided and under appeal | Re Edwards | Eastern Bay of Plenty | No impact Appeals will continue under the pre- amendment law (which may change following the Supreme Court’s November 2024 hearing). |
| Re Ngāti Pāhauwera | Hawkes Bay | ||
| Tokomaru Bay 1 & 2 | Tokomaru Bay | ||
| Wairarapa (1a) | Wairarapa | ||
| Decided | Re Tipene | Titi Island | No impact |
| Ngā hapū o Ngāti Porou Tranche 1 & 2 | Tai Rāwhiti | ||
| Re Clarkson | Wairarapa | ||
| Re Ngā Pōtiki (1) | Tauranga |
[25] On 26 July 2024, several interested parties in the Whangārei Harbour and Whangārei Coast proceedings filed a memorandum submitting that the hearings should be adjourned and the Whangārei Harbour judgment stayed in light of the Press Release. Ngāti Whātua, as an applicant in both proceedings, filed a notice of opposition on 29 July 2024.
[26] On 31 July 2024, Churchman J issued a Minute. Referring to the proposed amendments to MACA, he observed:16
… The stated proposals obviously have significant potential ramifications not only for applications that are yet to be set down for hearing but those applications that have been heard and in respect of which there is no decision yet issued. However, until the intimated legislation is passed, the Courts are obliged to act in accordance with the current statute and binding authority.
[27] On 7 August 2024, Harvey J, who is presiding over the Whangārei Coast and Whangārei Harbour proceedings, dismissed the adjournment application. He issued a Minute which noted:17
The Court must deal with the legislation enacted by Parliament … It cannot take account of announcements and must apply the existing statutory provisions … If and when that changes, then the parties will have the opportunity to make submissions on the effect of those changes. In summary, the [Whangārei Coast] hearings will proceed as scheduled commencing at 10am on 19 August 2024.
The current proceeding
[28] Ngāti Whātua commenced this proceeding on 30 July 2024. After setting out the factual background, none of which appears to be in dispute, Ngāti Whātua pleads three causes of action. First, it contends the Press Release, like the 1975 press release that was central in Fitzgerald v Muldoon,18 breaches art 1 of the Bill of Rights 1688.19 Ngāti Whātua argues, among other things, that the Press Release:
… suspends the law as its effect is not to allow Te Rūnanga o Ngāti Whātua the right to have the Whangārei Harbour and Whangārei Coast hearings
16 Re Te Ihutai Ki Orira HC Wellington CIV-2017-404-522, 31 July 2024 (Minute of Churchman J [Case Management Conferences 2024]) at [71].
17 Re Paki (Te Parawhau) HC Whangārei CIV-2017-404-305, 7 August 2024 (Minute of Harvey J) at [3].
18 Fitzgerald v Muldoon [1976] 2 NZLR 615 (SC).
19 Article 1 provides: “That the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall”.
determined under the existing MACA Act, even though the amendment bill which will make the CMT test harder to meet has not been introduced in Parliament let alone enacted.
[29] Second, Ngāti Whātua argues the limited consultation period, and the limited scope of the consultation, breaches s 27(1) of BORA. It notes the substantial effect the proposed amendment would have on its existing proceedings, and adds:
(c)Having offered to consult Te Rūnanga o Ngāti Whātua as a party detrimentally affected by the Government’s Policy Decision, this must be done properly — in observance of the right to natural justice;
(d)Inadequate notice and inadequate time to make an informed response have been given for the consultation as there is only 3 weeks from the date of press release to when consultation closes (25 July–15 August 2024). Te Rūnanga o Ngāti Whātua needs to call together their hapū, uri, beneficiaries, their marae and post-settlement governance entities together to seek their views before they can respond to the consultation. At the same time, Te Rūnanga o Ngāti Whātua is still trying to seek relevant information from Te Arawhiti “on the impacts of these proposed changes to your CMT application” to be able to make an informed response, as in the Pānui;
(e)The so-called consultation is too limited. It is only of two matters — definitions and framing of the sections — but is still to achieve the Government Policy Decision already taken by Government to “restore Parliament’s intent” because “the Court of Appeal in Edwards case made errors in their interpretation of the test for CMT”;
(f)Even though the Minister’s letter says at the end “and any general views or concerns,” that is predicated by a sentence stating that “the above changes have already been approved by Cabinet…”
[30]Finally, Ngāti Whātua argues the Policy Decision breaches s 20 of BORA by:
… interfering with the right of Te Rūnanga o Ngāti Whātua, its hapū, uri and beneficiaries as indigenous people of Aotearoa (who are an ethnic and linguistic minority in New Zealand), in community with other members of that minority, to enjoy the culture like fishing and other cultural practices such as rongoā (Māori medicine) consistent with tikanga, as it will be harder for Te Rūnanga o Ngāti Whātua and its hapū to obtain CMT in the Whangārei Harbour and Whangārei Coast to prevent the building of any further infrastructure or degrading activity or discharges in their claim area which removes/undermines this right.
[31] The Court has accorded urgency to the substantive proceeding; it is scheduled to be heard on 17 October 2024.
The interim orders application
[32] On 5 August 2024, Ngāti Whātua sought an urgent interim declaration against the Minister. The declaration arises from the second cause of action and effectively asks the Court to prevent the Minister from closing the consultation period on 15 August.
[33] Ngāti Whātua asserts the 15 August deadline provides it with insufficient time to obtain expert advice and undertake the extensive internal discussions which will be required for it to engage meaningfully in the process. The exact terms of the declaration it seeks are somewhat fluid. But the nub of Ngāti Whātua’s application is a request that the Court “supervise” the consultative process. Among other things, it says:
(a)Ngāti Whātua has a position that needs to be preserved and in the absence of the declaration it will suffer irrevocable prejudice;
(b)having offered to consult, consultation must be done properly, and must observe Ngāti Whātua’s right to natural justice;
(c)if consultation ends on 15 August, no judgment could compensate Ngāti Whātua for the prejudice will suffer, even if it is ultimately successful in the substantive proceeding;
(d)the claim has substantive merit;
(e)a higher standard of consultation is required given the Crown’s obligations to Māori under Te Tiriti o Waitangi;
(f)the three-week consultation period offered by the Minister is insufficient;
(g)a more extensive consultation process is in the public interest, and will result in better decision-making; and
(h)the overall balance of convenience favours interim relief — given the Minister proposes that the legislation will be retrospective, “a short delay of approximately six weeks” will not affect the changes the Government proposes.
The principle of non-interference
[34] Ms Chen seeks to confine Ngāti Whātua’s claim to a breach of its procedural rights. She says the Minister has created a legitimate expectation that he will consult with affected parties, and that Ngāti Whātua asks nothing more than that he does so properly, with adequate time on all sides for a considered response. She repeatedly submitted that Ngāti Whātua’s claim is not about the legislation, but about process.
[35] That said, and although Ms Chen disavows any such intention, Ngāti Whātua’s application will inevitably test the scope of the Court’s role where a party fears it will be detrimentally affected by proposed legislation.
[36] Much of what was canvassed in argument is common ground. There is no dispute that the Court may not make any order or declaration which affects the formulation, introduction or progress of legislation. The rule has been described as the “principle of non-interference”, which is prosaic description of a fundamental pillar of our constitution. The rule reflects Parliament’s independence and sovereignty.
[37] One authoritative formulation of the rule, which is particularly relevant here because of its emphasis on the freedom of Ministers to introduce legislation whenever and however they see fit, can be found in Te Runanga o Wharekauri Rekohu Inc v Attorney-General.20 That case concerned a challenge to the introduction of legislation giving effect to the landmark 1992 agreement between Māori and the Crown (the so-called Sealord deal). That agreement settled the Crown’s Treaty obligations in the sphere of commercial fishing, but legislation was required to give it legal effect. Writing for the Court of Appeal, Cooke P observed:21
20 Te Runanga o Wharekauri v Attorney-General [1993] 2 NZLR 301 (CA) at 308. In-text citations excluded. Emphasis added.
21 Emphasis added.
As held in Eastgate, the proper time for challenging an Act of a representative legislature, if there are any relevant limitations, is after the enactment. In our opinion, non-interference with the introduction of a Bill is the corollary of the principle identified by the High Court of Australia in Nationwide News Pty Ltd v Wills … and Australian Capital Television Pty Ltd v Commonwealth (No 2) … namely that an implied right to freedom of expression in relation to public and political affairs necessarily exists in a system of representative government. That right, which is reflected in the Bill of Rights 1689, being accepted, it is impossible to suppose that a Minister may be judicially prevented from presenting to a representative assembly a measure for consideration.
Closely allied is the conclusion that the Courts would not compel a Minister to present a measure to a representative assembly for consideration. Surely in a democracy it would be quite wrong and almost inconceivable for the Courts to attempt to dictate, by declaration or a willingness to award damages or any other form of relief, what should be placed before Parliament. The Parliament of New Zealand consists of the Sovereign in right of New Zealand and the House of Representatives … The twofold nature of Parliament is commonly overlooked when the institution is mentioned as if it consisted of the House only, but that point does not alter the outcome of the case now before this Court. The point that does matter, in our opinion, is that public policy requires that the representative chamber of Parliament should be free to determine what it will or will not allow to be put before it. Correspondingly Ministers of the Crown must remain free to determine, according to their view of the public interest, what they will invite the House to consider.
[38] Westco Lagan Ltd v Attorney-General was another challenge to Parliament’s authority to pass legislation which would detrimentally and irrevocably affect a party’s existing rights. 22 Justice McGechan observed:
[95] … in principle, provided Parliament proceeds according to mandatory law governing the procedure for enacting legislation (“manner and form”), Parliament is sovereign and can pass any legislation it sees fit. In particular, Parliament can enact laws expropriating property without compensation. In doing so, it can step right through existing laws and rights, obliterating remedies which otherwise would exist. The Courts, providing Parliament proceeds according to law in the way described, cannot stop Parliament making such legislative changes It is not for the unelected
Courts to frustrate that legislative ability. If content of legislation offends, the remedies are political and ultimately electoral. The fact those alternatives seem monumentally difficult, indeed unreal, to particular persons, or to those espousing unpopular causes, is no more than a dark side of democracy.
[39] The principle has been reaffirmed on numerous occasions in the years since,23 and its boundaries have been refined. The courts have consistently rejected pleas to intervene in the process by which legislation is developed, while jealously asserting
22 Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC).
23 See Comalco Power (New Zealand) Ltd v Attorney-General [2003] NZAR 1 (HC); New Plymouth District Council v Waitara Leaseholders Assoc Inc [2007] NZCA 80; Milroy v Attorney-General [2005] NZAR 562 (CA); and Ngāti Mutunga o Wharekauri Asset Holding Company Ltd v Attorney-General [2020] NZCA 2, [2020] 3 NZLR 1.
their constitutional role in determining existing rights despite imminent legislative change.
[40] The latter aspect of the principle,24 confirming it is the court’s role to determine existing legal rights even in the face of pending legislation, was summarised succinctly by the English High Court in Willow Wren Carrying Co Ltd v British Transport Commission:25
Of course, if … Parliament in its wisdom by some enactment affects the rights of the parties even to the extent of modifying or abrogating the effects of any judgment which the plaintiffs may be fortunate enough to obtain, no one doubts the right and power of Parliament to do so. But it is plain that it is not right for this court either now or at the hearing to take into account the possible effect of some Bill at present before Parliament which, so far as this Court is concerned, may never be passed into law at all, or, if passed into law, may ultimately contain provisions which do not affect the rights of the parties before the court at all. In other words, it is a matter of speculation on which this court will not embark as to whether a Bill at present before Parliament will be passed into law in its present form.
[41] In argument, Ms Chen placed considerable reliance on the Supreme Court’s decision in Ngāti Whātua Ōrākei Trust v Attorney-General (Ngāti Whātua).26 In that case Ngāti Whātua sought to challenge steps by the Crown to progress a Treaty settlement with other iwi, part of which involved a decision to introduce legislation. Ngāti Whātua asked for declarations of their rights under their own Treaty settlement and in tikanga. The High Court and the Court of Appeal struck out Ngāti Whātua’s claim on the basis it infringed the principle of non-interference.
[42] The Supreme Court’s decision discussed both aspects of the principle of non-interference. It was unanimous that the courts may not make an order which prevents the introduction of a Bill.27 The majority went on to say:
[46] From the cases to date, there remain questions about the exact scope, qualifications and basis of the principle of non-interference in parliamentary proceedings. As will become apparent, it is not necessary in the present case to resolve the exact metes and bounds of the principle. It is, nonetheless, appropriate to sound a note of caution at the extent to which the principle of non-interference in parliamentary proceedings has been held to apply to
24 Also exemplified in the Minutes of Churchman and Harvey JJ discussed above.
25 Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 All ER 567 (Ch), [1956] 1 WLR 213 at 215–216. It was cited by the Supreme Court with approval in Wairarapa Moana Ki Pouākani Incorporation v Mercury NZ Ltd [2022] NZSC 142 at [47].
26 Ngāti Whātua Ōrākei v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116.
27 At [36].
decisions somewhat distant from, for example, the decision of a minister to introduce a Bill to the House or from debate in the House. It would be overbroad to suggest that the fact a decision may, potentially, be the subject of legislation would always suffice to take the advice leading up to that decision out of the reach of supervision by the courts. That would be to ignore the function of the courts to make declarations as to rights …
[43] The majority held that two of the declarations Ngāti Whātua sought could only be “characterised as a challenge to the decision which has been made to legislate”. While the illegality was “said to arise because of some prior lack of process”, the substantive effect of the declarations would have been a formal determination that the decision to legislate was inconsistent with tikanga, inconsistent with the Crown’s obligations under the Treaty and its principles, and breached international law.28 Those declarations could not be reconciled with the principle of non-interference, and the majority held they had been properly struck out.29
[44] Ms Chen relied on extracts from Elias CJ’s (partially dissenting) decision, with particular emphasis on the following paragraphs:
[112] [Te Runanga o Wharekauri and Westco Lagan] do not suggest any wider inhibition of court function simply because if legislation is enacted it may affect the issue before the court. If the relief sought in the proceeding is discretionary (as declaratory relief is) the fact that the court determination is likely to be overtaken or that the subject matter of the litigation is under active consideration in Parliament may well be relevant in considering whether the relief sought should be granted, although a decision to decline relief in exercise of discretion will often not be a matter capable of assessment on preliminary inquiry. I discuss the declaratory relief sought under the final heading of these reasons. For present purposes however it is enough to reject the suggestion that a Bill before Parliament constitutes a bar to the jurisdiction of the court.
…
[115] Provided that the court does not seek to preclude parliamentary consideration, I cannot see that any determination of present right of itself constitutes an interference with proceedings in Parliament. Indeed, in some cases it may provide information that Parliament may want to consider. That is not, in my view, interference with proceedings in Parliament. Parliament remains free to legislate to modify or abrogate any existing rights. It is free to legislate without inquiring into the existence of rights or waiting for court determination of them. The courts will do nothing to prevent Ministers from introducing legislation with that effect for Parliament’s consideration. The freedom of debate and the freedom of speech in Parliament is not affected.
28 At [65]–[66].
29 The remaining declarations, which concerned the rights of Ngāti Whātua in Tāmaki Makaurau and the Crown obligations in respect of those rights, were reinstated, and the claim was allowed to proceed on that basis.
[116] The constitutional functions of the courts are not enlarged by this approach. Rights in issue in the courts may always be changed by legislation. The prospect does not deflect the courts from carrying out their present responsibilities. Nor are they deflected by statements of government policy that legislative change will be sought. Such statements cannot mark out no-go areas for the courts.
[45] Ms Chen says that in the present case Ngāti Whātua seeks nothing more than a declaration of its rights under the present law. She says those rights include the right to natural justice and (the Minister having opened the door to a consultative process) the right to effective consultation. She argues that the consultation to which Ngāti Whātua is entitled must incorporate all the usual features of effective consultation, including adequate notice, sufficient relevant information, adequate time and an open mind on the part of the decision maker.
[46] But, as is discussed in more detail below, that submission presupposes that Ngāti Whātua has an existing right to natural justice and consultation in the context of forthcoming legislation. Whether it does is the very question I must determine.
[47] Justice Cooke’s decision in Hata v Attorney-General (No 2) helpfully draws together the principles which govern the relationship between Parliament and the courts when legislation is proposed.30 In particular, he highlighted the difference between cases raising issues about the legislative or pre-legislative process, which he described as “political questions”, and those where the courts are asked to change their approach in existing proceedings because legislative change has been proposed, which he referred to as “legal questions”:
[32] As the majority said in Ngāti Whātua the exact boundaries of the non- interference principle are evolving and are becoming more clearly identified. … These developments suggest that the real dividing line is identified by distinguishing between legal questions that are for the court to decide, and political questions that are for parliament. It is of constitutional importance that there is right of access to the court so that parties may obtain determinations of their legal rights. This is a fundamental right at common law which is reflected in the New Zealand Bill of Rights Act 1990. The court should not, however, exercise this jurisdiction in a way that interferes with the role of parliament. What parliament considers, and does, is entirely a matter for it. This approach accords with the judgment of Elias CJ in Ngāti Whātua, and with the constitutional principles recognised in Fitzgerald v Muldoon.
[33] Against that background it seems to me that the important point is not so much what the party pleads in its statement of claim, but more what the court does by way
30 Hata v Attorney-General (No 2) [2023] NZHC 2919.
of its determinations, and the relief that it grants. In the present case the applicants say that their legal rights have been interfered with The legal issue preceded the
existence of the Bill, and exists entirely independently of it. But what the Court cannot do when addressing these claims is reach any decisions, or make any orders that purport to prevent, or otherwise interfere with the legislative process.
[34] The fact that parliament chooses to legislate in a manner that may change, or otherwise affect legal rights is a matter entirely for parliament. The courts will not interfere with it so exercising its legislative functions. And if legislation is passed the court has no role in overturning it, although it could have jurisdiction to grant a declaration of inconsistency once legislation is enacted if that is appropriate. But equally the fact that parliament chooses to address such matters should not exclude the right of access to the court that a party has to have its existing legal rights determined. In this way the respective constitutional functions of the court and parliament are maintained, and the rule of law is upheld. I consider this to be a clearer dividing line that accords with principle. …
[35] … The applicants are entitled to have access to the Court to have their rights determined. The court will not adjudicate, or otherwise make determinations that purport to interfere with parliament’s role when doing so. But that requirement does not prevent the claim proceeding. The applicants’ amended statement of claim does not plead any issue associated with the legislative process. It seeks declaratory and not injunctive relief. The claims are against the executive, and they relate to legal rights.
[48] The formulation of legislation, including all decisions leading to the introduction of a Bill, is inherently political. The processes of Parliament, including decisions made by Ministers when deciding what to put before the House, are, to paraphrase Cooke J, political matters which must be resolved in the political arena.
This case
[49] Ngāti Whātua has done an admirable job of characterising its complaint as one that does not infringe the principle of non-interference. Ms Chen has disavowed any intention to inhibit the Minister’s right to introduce the amending legislation, in whatever form he likes, whenever he sees fit. Instead, she presents the case as a conventional plea for recognition of Ngāti Whātua’s right to natural justice. But the principle of non-interference is too fundamental to be susceptible to innovative pleading, no matter how skilful. As Cooke J emphasised, it is the substance of the challenge and the way the Court responds that is important, not the way the claim is pleaded.
[50] The relief Ngāti Whātua seeks evolved somewhat between the filing of the injunction application on 6 August and the argument two days later. These
proceedings were prepared and advanced with considerable urgency, and it is understandable the relief Ngāti Whātua seeks underwent a measure of refinement as the issues crystallised. That said, the evolution of the proposed declaration underscores the difficulty Ngāti Whātua faces in crafting a prayer for relief which does not invite the Court to involve itself in the legislative process. As originally pleaded, Ngāti Whātua sought:
… an interim order preventing the Respondent from closing consultation on the proposed amendments to the MACA Act on 15 August 2024, and delaying closure until the end of September 2024 to allow time for those most affected by the Government Policy Decision, including Te Rūnanga o Ngāti Whātua, to properly take expert advice on the proposal, obtain relevant information from the Crown, and hui with their over 22,000 uri (Census 2023), 33 marae and 3 Post-settlement Governance Entities (PSGEs). This will then enable them to provide an informed response on behalf of Te Rūnanga o Ngāti Whātua.
[51] In argument, Ms Chen reformulated the relief she seeks. Ngāti Whātua now asks for “a declaration that the Minister observes the principles of natural justice in consulting affected applicants under the MACA Act, promised by his letter of 25 July 2024.”
[52] I asked Ms Chen what the practical effect of that declaration would be; she replied, in effect, that I should not concern myself with that. Ngāti Whātua, she argues, has a right to natural justice and proper consultation. The present application merely asks the Court to affirm the existence of that right. The actual declaration, carefully-drawn to avoid the appearance of overt intrusion, does not even go as far as to say that the Minister must observe the principles of natural justice, though it is apparent that is its intended effect.
[53] The more fundamental question, however, is whether the Court could make any declaration which touches the process by which legislation is formulated without breaching the principle of non-interference.
[54] I asked Ms Chen whether there is an unwritten final clause in the declaration she seeks, and whether in reality she is asking for a declaration that the Minister must observe the principles of natural justice in consulting affected applicants before introducing the proposed amendment. Ms Chen firmly and repeatedly said the answer is no. She confirmed Ngāti Whātua does not suggest there is any implied limitation
on the Minister’s power to introduce the legislation whenever he chooses. She merely asks me to declare that he should consult more extensively, and that Ngāti Whātua, along with all other affected parties, have a right to natural justice and full consultation.
[55] When pressed, Ms Chen accepted the Minister could freely ignore any declaration to that effect. She acknowledged that any declaration I might make may be futile, and would be non-binding and unenforceable. She nonetheless asked me to make the declaration.
[56] I am still not entirely clear what the point of such a declaration would be. Even when a judicial declaration is of no immediate utility, it represents a binding and enforceable statement of a party’s rights. As Palmer J explained in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4):31
[454] The Court’s power to grant a declaration as a remedy is discretionary. It is well-established in the law of judicial review that “courts today will generally consider it appropriate to grant some form of relief where they find reviewable error”. A declaration will not usually be made where it lacks utility. But declarations vindicate rights and bind the parties by preventing them from relitigating the same issues.
[57] It is true that even a purely symbolic declaration may be of some value in an exceptional case (for example where a declaration vindicates the position of a person for whom no other relief is appropriate, or after an affected party has died). But the critical feature of any valid declaration is that it authoritatively determines the affected party’s rights.
[58] Given nothing this Court can do or say can affect the Minister’s freedom to introduce legislation, a declaration that the Minister should consult affected parties more extensively would be of no utility. Another word for a non-binding and unenforceable declaration is a suggestion. It is not the Court’s role to make suggestions, especially in the context of forthcoming legislation which is likely to be immensely controversial.
31 Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601.
[59] I suspect Ngāti Whātua may perceive some value, in the forthcoming political battle, in a formal declaration that the Minister should have consulted more fully. A High Court determination that the pre-legislative consultation process was inadequate may help opponents delegitimise the Bill.
[60] Mr Melvin referred me to a decision of the English High Court which discussed this very consequence. In R (on the application of A, J, K, B and F) v Home Secretary, Fordham J observed:32
… Let it be assumed that the Court’s conclusion did not involve any ‘step’ being taken by Government. Suppose instead that the Court’s judgment instead cast a legal ‘shadow’ over the product of the consultation. That shadow would, in my judgment, itself stand — in the circumstances of the present case — as an interference in the Parliamentary process. The Court would, unmistakeably, have concluded that the ‘product’ of the consultation was legally ‘tainted’. The Court would have held that the product had been arrived at in breach of a relevant, material and applicable legal standard. In the present case, the Claimants’ pleaded grounds for judicial review, in my judgment, demonstrate this ‘shadow’ point very clearly when they address the purpose of a freestanding declaration … The very consequence for which the Claimants hope, and which they intend, through the bringing of this claim for judicial review and the seeking of a declaration of breach would, in a real sense, be seeking to ‘influence the course of the Bill’ … Otherwise, how could the judgment be affecting the thinking of ‘Parliament’ (as it is put), or thinking of those involved in the Parliamentary process?
[61] Given the legislative process is an area where the courts have no dominion, it would be wrong to make even a respectful suggestion that the Minister consult more extensively. The Minister is entitled to consult as much, or as little, as he wishes. Criticism of the scope and length of the consultation the Minister has offered may come as part of the political and Parliamentary process, but it is not a matter for the Court.
Duties of consultation
[62] In any event, I am satisfied Ngāti Whātua is wrong when it asserts the Minister is under a duty to consult prior to the introduction of the legislation. The offer of a limited consultation period does not alter that analysis.
32 R (on the application of A, J, K, B and F) v Home Secretary [2022] EWHC 360 (Admin), [2022] 4 All ER 615 at [26](ii)
[63] First, and despite Ms Chen’s efforts to characterise her complaint as one about process rather than the forthcoming amendment, Ngāti Whātua’s claim is undoubtedly about the proposed legislation. Procedural rights do not exist in a vacuum. In an administrative (as opposed to a legislative) context, a person’s right to natural justice engages when a decision might be made which affects that person’s rights, obligations or interests.
[64] Here, there is a proposal, and, if carried through into law, it will undoubtedly affect Ngāti Whātua’s interests. Accordingly, Ngāti Whātua, quite reasonably, wants an opportunity to be heard before things go any further. But that proposal is a proposal to legislate. In seeking information which might feed into the drafting of the Bill, the Minister has begun the public phase of the legislative process.33
[65] Ngāti Whātua has a right to natural justice, and a right to be consulted, only if the law recognises an enforceable obligation on the part of Ministers to consult affected parties before introducing legislation. That is where Ngāti Whātua’s application hits a wall.
[66] Mr Melvin fairly acknowledged that pre-legislative consultation is desirable. Indeed, he helpfully produced extracts from the Cabinet Manual which make that point expressly, and which note the particular importance of consultation when proposed legislation may affect the relationship between the Crown and Māori. For example, he drew my attention to the following paragraph:34
Public consultation
[5.22] A critical consideration in developing workable and effective policy is assessing the need for, and the timing of, engagement with Māori (including relevant iwi, hapū, and whānau), the public, and relevant stakeholder groups. Agencies should bear in mind that consultation may be undertaken face to face, using discussion documents, or using digital consultation tools. See the CabGuide for information on public and stakeholder consultation including engagement with Māori.
33 Of course, internal work — such as marshalling policy options, taking official advice, reaching a concluded Government position — had been going on for some time prior to the Minister’s announcement. All that work, too, was intimately connected with the development of this legislation.
34 Cabinet Office Cabinet Manual 2023.
[67] Mr Melvin also (very fairly) directed me to Cabinet Office Circular 19(5), which includes the following passage:35
[39] Because the Māori Crown relationship is a continuing one, the Crown and Māori should act reasonably and in good faith towards each other, consulting with each other and compromising where appropriate.
[68] Mr Melvin noted that while provisions of this nature reflect good advice and good practice, the Cabinet Manual is the authoritative source of the conventions that apply to the Executive. He correctly noted that while the Cabinet Manual describes effective consultation as “an important factor in good decision-making”,36 Ministers may ignore those conventions if they wish. The Government is always free to determine for itself whether, and how extensively, to consult affected parties before introducing legislation. Sometimes the Government does not consult at all. And while legislation carries an inbuilt consultation phase, in the form of the select committee process, the House, if it chooses, is free to dispense with that too.
[69] The brevity of the consultation period, especially for legislation which would usually attract the enhanced process of consultation signalled in the Cabinet Manual and Cabinet Office Circular, will legitimately form part of the political debate to come. The Minister will be accountable to the House for those decisions. But he is under no legal obligation to consult more widely.
[70] In the end, Parliament will decide whether any legislation the Minister introduces becomes law, and if so in what form. Parliament, not the Minister, is the body whose decision would affect Ngāti Whātua’s rights.
[71] Moreover, there is ample authority that, from the perspective of the courts, pre-legislative steps, provided they are clearly connected with the Parliamentary process, are as inviolable as the legislation itself. For example, in New Zealand Māori Council v Attorney-General, the Court of Appeal said:37
[60] … the courts will not grant relief which interferes or impacts on actions of the executive preparatory to the introduction of a Bill to Parliament, because to do so would be to intrude into the domain of Parliament.
35 Cabinet Office Circular Te Tiriti o Waitangi / Treaty of Waitangi Guidance CO (19)5.
36 Cabinet Office Cabinet Manual 2023, above n 34, at [7.28].
37 New Zealand Māori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318.
[72] The Supreme Court of Canada recently considered whether any duty of consultation attaches to the process by which legislation is formulated. In Misikew Cree First Nation v Canada, the Supreme Court divided on the question of whether Ministers were obliged to consult with the Misikew Cree First Nation about proposed legislation that had the potential to affect their treaty rights to hunt, trap and fish.38 The simple question was whether the duty to consult, which applies to the Canadian Government’s relationship with its First Nations, extends to the law-making process.
[73] By a 7-2 majority, the Court held the answer is no. Writing on behalf of herself, Wagner CJ and Gascon J, Karakatsanis J observed:
[2] … Two constitutional principles — the separation of powers and parliamentary sovereignty — dictate that it is rarely appropriate for courts to scrutinize the law-making process. The process of law-making does not only take place in Parliament. Rather, it begins with the development of legislation. When ministers develop legislation, they act in a parliamentary capacity. As such, courts should exercise restraint when dealing with this process. Extending the duty to consult doctrine to the legislative process would oblige the judiciary to step beyond the core of its institutional role and threaten the respectful balance between the three pillars of our democracy. It would also transpose a consultation framework and judicial remedies developed in the context of executive action into the distinct realm of the legislature. Thus, the duty to consult doctrine is ill-suited to the law-making process; the law-making process does not constitute “Crown conduct” that triggers the duty to consult.
[74]In a judgment on behalf of himself, Moldaver and Côté JJ, Rowe J observed:
[171] … Vindicating s 35 rights does not require imposition of a duty to consult in the preparation of legislation. Indeed, the imposition of such a duty would be contrary to the distinction between the Crown and the legislature. It would offend the separation of powers. It would encroach on parliamentary privilege. It would involve the courts in supervising matters that they have always held back from doing. In short, imposing such a duty would not provide needed protection for s 35 rights. Rather, it would offend foundational constitutional principles and create rather than resolve problems.
[75] Misikew Cree First Nation did not break new ground; the Supreme Court’s emphasis on the separation of powers, Parliamentary sovereignty and the importance of insulating the courts from any suggestion they might have a role in “supervising” ministerial consultation, reflects the ongoing constitutional importance of Parliament’s privilege and independence which date back to before the Bill of Rights 1688.
38 Misikew Cree First Nation v Canada [2018] SCR 765.
[76] I am satisfied the Minister’s offer of limited consultation does not alter that analysis. Ms Chen submits that the Minister has committed to a consultation process, and that it is now the Court’s role to ensure the promised consultation is adequate. Indeed, as already note Ms Chen argues that having committed to consult, the Minister is now under the usual series of duties which apply to any public body which is under a duty to consult, namely adequate notice, adequate relevant information, adequate time, and an open mind on the part of the decision-maker.
[77] The proposed extension of administrative law consultation duties to legislation highlights how ill-suited those requirements are to actors in the parliamentary branch of Government. Every piece of contentious legislation would face a similar challenge.
[78] And the suggestion the Minister must consult with an open mind is especially inapt in the legislative context. Legislation is often (indeed usually) formulated because Ministers are already firmly convinced the proposal represents good public policy. Often it reflects a manifesto commitment. Ministers are political actors. They may be persuaded, by official advice or evidence before a select committee, that a Bill should be changed, but the suggestion the Court can insist Ministers retain an open mind about legislation is, to put it mildly, unrealistic. As McGechan J observed in Westco Lagan, accountability in this area is political and ultimately electoral. The spectre of the Court invalidating a pre-legislative consultation process because the Minister did not approach it with an open mind is unimaginable.
[79] As Mr Melvin submitted, here the Minister offered three weeks for consultation. The adequacy of that period may be a matter for political debate, and it is not hard to imagine Bill’s opponents criticising both the haste with which the legislation was drawn up and the narrow grounds on which input was sought. But the Minister cannot be held to a longer consultation period; indeed, the Court could not hold him even to the three-week period he promised. If he decided to introduce the legislation sooner, affected parties would have every right to feel aggrieved, but any consequences would come as part of the usual scrutiny of the executive by Parliament. The Court could not intervene without crossing into Parliament’s domain.
[80] And finally, it goes without saying that if the courts were to determine that a Minister opens the door to judicial scrutiny by offering a brief period of consultation, Ministers will stop doing even that. The three weeks the Minister offered here is tight, but it is better than nothing.
[81] It follows that the fundamental premise of Ngāti Whātua’s application is unsustainable. The Court has no role in supervising the process by which this (or any other) legislation is formulated. The application must fail.
Conclusion
[82] Ms Chen submitted that if the Court will not intervene, Ngāti Whātua will have nowhere else to go. While it may not provide much consolation, Ms Chen is wrong about that. The Waitangi Tribunal, unlike the Court, has an express statutory mandate to scrutinise Government policy and forthcoming legislation up to the point of introduction.39 The Tribunal has already accepted an urgent claim based on the policy articulated in the Press Release.
[83] Ms Chen submitted that proceedings before the Tribunal are of little utility because it can do no more than make recommendations. But, as Ms Chen conceded, when it comes to the formulation and introduction of legislation, the Court has no binding powers either (indeed, as I have concluded, it has no powers at all). And the Tribunal, with its express jurisdiction to inquire into the consistency of proposed legislation with the Treaty, can investigate the merits of the Government’s plans in far more detail than the Court ever could, and can do so without stepping out of its constitutional lane.
[84] Finally, all else aside, if this proposal makes it off the drawing board there will still be a full Parliamentary process. It is far from uncommon for policy proposals to moderate as a Bill makes its way through the House. There is also (usually) the opportunity for public input through the select committee process and, of course, political debate. The current announcement is carefully couched as a proposal, to be
39 Treaty of Waitangi Act 1976, s 6(1)(c) and subs (6).
submitted to Parliament for its consideration. There is still much water to flow under the bridge.
Result
[85]The application is dismissed. I make no order for costs.
Boldt J
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