Te Runanga o Ngai Tahu v Attorney-General HC Wellington CIV-2007-485-2602

[2009] NZHC 1043

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2007-485-2602

UNDER

IN THE MATTER OF AND

IN THE MATTER OF

The Judicature Act 1972

The Treaty of Waitangi Act 1975

An application for review of a decision of

the Waitangi Tribunal

BETWEEN

TE RUNANGA O NGAI TAHU Plaintiff

AND

THE ATTORNEY GENERAL First Defendant

AND

THE WAITANGI TRIBUNAL Second Defendant

AND

NGATI APA KI TE WAIPOUNAMU TRUST

Third Defendant

AND

NGATI RARUA IWI TRUST Four Defendant

AND

TE RUNANGA O TOA RANGATIRA INCORPORATED

Fifth Defendant

AND

NGATI TAMA MANAWHENUA KI TE TAU IHU TRUST

Sixth Defendant

AND

TE RUNANGA O RANGITANE O WAIRAU INCORPORATED Seventh Defendant

AND

TE ATIAWA MANAWHENUA KI TE TAU IHU TRUST

Eighth Defendant

Hearing:

29 June - 1 July 2009

TE RUNANGA O NGAI TAHU V THE ATTORNEY GENERAL AND ORS HC WN CIV-2007-485-2602 14

August 2009

Counsel:         J S Kos QC and R E Brown for Plaintiff

A M Kerr and L R Joel for First Defendant
No appearance for Second Defendant
QAM Davies for Third Defendant
T J Castle for Fourth Defendant
B E Ross for Fifth Defendant

J P Ferguson for Sixth Defendant and on instructions from K E Ertel for Eighth Defendant (leave to withdraw)

M Hardy-Jones and G R Hill for Seventh Defendant

Judgment:      14 August 2009 at 4.25pm

I direct the Registrar to endorse this judgment with a delivery time of 4.25pm on the

14th day of August 2009.

RESERVED JUDGMENT OF MACKENZIE J

TABLE OF CONTENTS

Introduction  [1] History of the claims and the litigation  [2] The essence of the Ngai Tahu challenge  [32] The Te Tau Ihu Report  [35] The effect of s 6A(6) of the Treaty of Waitangi Act 1975  [41] Inconsistent Findings  [67] Issue Estoppel  [74] Result  [86]

Introduction

[1]      On 18 September 2008, the Waitangi Tribunal (the Tribunal) finalised its Report into some 31 claims by the iwi, hapu, and whanau of Te Tau Ihu o Te Waka a Maui (the northern South Island) alleging breaches by the Crown of the Treaty of Waitangi.   In this action for judicial review the plaintiff seeks declarations that

certain findings and recommendations in that Report are invalid, and setting aside these findings.  The findings and recommendations challenged relate to the way in which the Tribunal has dealt with certain issues as to the interrelationship between the Te Tau Ihu claims and certain claims of Ngai Tahu which had been earlier addressed by the Tribunal.

History of the claims and the litigation

[2]      A full understanding of the issues requires a lengthy description of some aspects of the claims by Ngai Tahu and the Te Tau Ihu iwi before the Tribunal, and the litigation between those parties in the Courts, over the past quarter century.  It is convenient to begin the narrative in 1986.   In that year, Ngai Tahu first formally brought their claims in respect of Treaty grievances to the Waitangi Tribunal.  There were nine parts to the presentation of the claim, the “Nine Tall Trees of Ngai Tahu”. Two of those, Kaikoura and Arahura, are relevant for present purposes.

[3]      The Kaikoura purchase, made under a deed signed in 1859, covered a block of land from Parinui o Whiti to the Hurunui of about 2.8 million acres.  Ngai Tahu raised five grievances on that purchase:  unfair pressure on Ngai Tahu to part with the block on unfavourable terms;  allowing settlement by Europeans before purchase without compensation;  failure to exclude certain land;  inadequate reserves;  and a failure to resume land within the block for Ngai Tahu as was done for European settlements.

[4]      The Arahura purchase, under a deed entered into in May 1860, provided for the purchase by the Crown from Ngai Tahu of lands on the West Coast, as far north as Kahurangi Point.  The grievances on this purchase included:  unfair pressure on Ngai Tahu to consent to the sale;  failures to reserve land from the sale;  and failure to protect Ngai Tahu’s right to retain possession and control of pounamu.

[5]      The northern boundaries of the lands included in the Kaikoura and Arahura deeds of purchase adjoined to create a single line extending generally south westwards from Parinui o Whiti to Rangitahi (Tarndale) (the north western boundary of the Kaikoura purchase) and thence generally north westward to Kahurangi Point

(the north eastern boundary of the Arahura purchase).  The line is depicted in figure

1 of the Te Tau Ihu Iwi Report.  All of Ngai Tahu’s grievances before the Waitangi

Tribunal were confined to geographical areas south of that line.

[6]      Ngai Tahu’s grievances were dealt with by the Waitangi Tribunal under its number WAI 27.  Shortly before the first hearing of the claim was due to begin in August 1987, the Tribunal received notice of the first of a number of claims which were made by groups or individuals who are now represented by one or more of the third to eighth defendants.  Those defendants collectively form the Te Tau Ihu iwi. For present purposes, all persons or groups now represented by one or more of those defendants can, for most purposes, be considered together.   For simplicity (and without intending any disrespect) I refer to groups and individuals within those iwi and to the iwi collectively, as Te Tau Ihu, or the Te Tau Ihu iwi.

[7]      The first Te Tau Ihu claims were lodged in August 1987.   The first, by Kurahaupo Rangitane, related to an area of lands south of the Kaikoura purchase boundary,  to  Waiau  -  Toa  (the  Clarence  River).    It  asserted  that  Kurahaupo Rangitane were in occupation of or had enjoyment of that land in 1840 and at all subsequent relevant times in accordance with the principles of ahi ka and that the Kaikoura deed of purchase had been entered into without their consent, so depriving Kurahaupo Rangitane of the full exclusive and undisturbed possession of their lands and estates and forests and fisheries attached to or adjacent to their lands.   The Arahura cross claim was by Kurahaupo Rangitane and other tribes of Kurahaupo Whaka and related to all the land in the Arahura purchase to the north of the Arahura River.  It alleged that the claimants were in occupation of or had enjoyment of the land rights and benefits in 1940 and subsequently in accordance with the principles of ahi ka and that the Arahura purchase deprived them without their consent of the full exclusive and undisturbed possession of their lands and estates and forests and fisheries attached to or adjacent to their lands.  Subsequently, a number of further cross claims by Te Tau Ihu entities were filed.

[8]      The  Tribunal  issued  a  preliminary  decision  on  the  cross  claims  on

26 November 1987.  It noted that the two cross claims had been filed, and that these

were strongly opposed and rejected by Ngai Tahu.  It described the reaction of the

Ngai Tahu claimants to the lodging of the cross claims in these terms:

They saw the attendance of Kurahaupo Rangitane people at the first hearing on 17 August last as an unwarranted attack on their manawhenua .  They still see it that way.  They are bitter about it. There is no compromise.

[9]      The Tribunal found that the cross claimant had filed a proper claim which must be heard and said:

The Tribunal  accepts the submission  of  the  cross  claimant  that  as  both claims  from Ngai  Tahu  and  Kurahaupo  Rangitane  arise  out  of  or  have genesis in the same two deeds of sale made with the Crown that both claims should be heard together or until such time as a determination is made on the tribal boundaries.

…

The Tribunal agrees with Ngai Tahu that there is a boundary dispute.  It has to be resolved either by this Tribunal or by the Maori Land Court.

[10]     The Tribunal said that although the Tribunal has power to inquire into and determine tribal boundaries, it considered this as a function more properly seen as part of the jurisdiction of the Maori Land Court.  It recommended urgent legislative change to allow the Tribunal to state a case to the Maori Appellate Court for a certificate of the Appellate Court’s opinion on any tribal land or fishing boundaries, and noted that s 50 of the Maori Affairs Act 1953 might serve as a useful precedent with appropriate changes.  It also observed that the Tribunal could see no reason why the Maori Appellate Court should not apply the 1840 rule which had been adopted in the Maori Land Court.

[11]     Hearing of the Ngai Tahu claims, in areas not affected by the cross claims, proceeded through 1988.  In the course of its further hearings the Tribunal gave an interlocutory determination on 19 September 1988 setting out the procedure.   The Tribunal considered that the WAI 27 claim and the cross claims should each be heard as a separate claim, but that the respective claims raised issues as to tribal boundaries which must be first settled or determined before the Tribunal could make any recommendation.   The Tribunal determined that the cross claimants would be permitted to be heard on such parts of the Ngai Tahu claim as may be thought to affect them until further decision of the Tribunal.

[12]     Simultaneously, steps were taken to amend the legislation in accordance with the Tribunal’s recommendation, and s 6A of the Treaty of Waitangi Act 1975 was inserted, with effect from 1 January 1989.   In a memorandum dated 27 February

1989, the Tribunal said:

The Tribunal desires to have a case stated referred to the Maori Appellate Court as soon as possible.  To this end, as a guide and help to the parties, the Tribunal has prepared a draft case stated which is appended hereto.

Section 6A(3) of the Act – the new provision – requires the parties to draw up the case stated and, if the parties do not agree, the form of the special case is to be settled by the Tribunal.  The parties in the proceedings before the Tribunal in the Ngai Tahu WAI 27 claim are the claimants and the Crown.

[13]     The terms of the case stated were settled between Ngai Tahu and the Crown. The questions for determination were:

(1)Which   Maori   tribe   or   tribes   according   to   customary   law principles  of  “take”  and  occupation  or  use,  had  rights  to ownership in respect of all or any portion of the land contained in those respective Deeds at the dates of those Deeds.

(2)If more than one tribe held ownership rights, what area of land was subject to those rights and what were the tribal boundaries.

[14]     The  Maori  Appellate  Court  gave  notice  to  parties  including  the  cross claimants of the filing of the case and that it had been set down for hearing commencing 15 May 1989.  In a memorandum to the Maori Appellate Court dated

4 April 1989, counsel for the cross claimants noted that the case stated does not describe the cross claimants as a party to the Waitangi Tribunal proceedings but asserted that:   “The cross claimants are undoubtedly a party affected”.   The memorandum claimed that the cross claimants should be heard as parties and sought a process to enable all parties affected to be identified and joined as parties.   By Minute dated 5 April 1989 the Maori Appellate Court directed that the hearing on

15 May would proceed as a preliminary conference.

[15]     At  the  preliminary hearing  on  15 May 1989  counsel  for  the  Te  Tau  Ihu claimants sought joinder as parties.  The presiding Judge indicated the view of the Court:  “That everybody concerned are now claimants before this body”.  Counsel for the Crown noted an intention to undertake a watching brief.  The Court directed that the order of presentation of cases would be that the Te Tau Ihu claimants would

go first followed by Ngai Tahu.  The Court directed that there be written submissions on the question of whether the Court should follow the 1840 rule.

[16]     In an interim decision delivered on 15 August 1989, the Maori Appellate Court dealt with the application of the “1840 Rule”.  It identified that rule as being that:  “Land could not be acquired post treaty by conquest or take raupatu but the other incidences of customary title change remain intact.”  It expressed the opinion that the rule is consistent with both the first and second articles of the Treaty of Waitangi.   On the question of evidence the Maori Appellate Court ruled that any relevant evidence that will assist the Court in determining the customary land principles of take and occupation or use in respect of these boundaries whether it be of historical matters before or post the Treaty is admissible.

[17]     The hearings of the case stated before the Maori Appellate Court took place over several months.   In November 1989 Rangitane presented its case and at a subsequent hearing in June 1990 the cases were presented by the other Te Tau Ihu claimants and Ngai Tahu.  The Maori Appellate Court’s decision was delivered on

12 November 1990.  It answered the questions (set out in paragraph [14] above) as follows:

The Ngai Tahu tribe according to customary law principles of “take’ and occupation or use had the sole rights of ownership in respect of the lands comprised in both the Arahura and Kaikoura Deeds of Purchase at the respective dates of those Deeds.

Having decided that Ngai Tahu only is entitled question two above does not require an answer.

[18]     On 7 December 1990 some Te Tau Ihu cross-claimants applied for a stay of further  proceedings  in  the  Tribunal  in  reliance  on  the  Maori  Appellate  Court decision, on the grounds that they were applying to the High Court for review of both the form of the case stated and the decision of the Maori Appellate Court, and that they were applying to the Privy Council for special leave to appeal against the Maori Appellate Court decision.  The principal ground of that petition was stated in these terms:

14.      THE principal ground on which this petition is based is that the

Maori  Appellate  Court  failed  adequately  or  at  all  to  consider

evidence adduced by your Petitioner in support of its submissions that:

(a)     In  relation  to  the  land  contained  in  the  Arahura  Deed  of Purchase, the northern tribes of Ngati Rarua, Ngati Tama and Te Atiawa were occupying the subject lands at all material times.

(b)In  respect  of  the  land  contained  in  the  Kaikoura  Deed  of Purchase north of Waiau-toa the Ngai Tahu tribe could not establish any right of ownership according to customary law principles of “take” and occupation or use, at any material time.

[19]     Leave  to  appeal  was  refused  by  the  Privy  Council  on  11 July  1991. Proceedings were also commenced in the High Court seeking judicial review of the decision of the Waitangi Tribunal to state the case, and of the processes of the Maori Appellate Court in reaching its decision.   The judicial review proceeding was discontinued in November 1991.   A second judicial review proceeding was commenced in August 1993 but was dismissed by Greig J on 13 May 1994 on a strike out application by Ngai Tahu.  A second petition for special leave to appeal to the Privy Council was filed by Ngati Toa.

[20]     Hearings of the WAI 27 claim by the Waitangi Tribunal continued and the Tribunal’s report was issued in 1991.   In its volume 1 Summary of Grievances, Findings, and Recommendations the Tribunal described the way in which the Te Tau Ihu iwi claims had been handled, at paragraph 1.6.12.  It noted the procedural steps leading up the stating of the case and then said:

(n)       The questions put to the Maori Appellate Court required the court to determine  in  respect  of  the  two  areas  of  land  purchased  by  the Crown from Ngai Tahu in the Arahura deed of purchase dated 21

May 1860 and the Kaikoura deed of purchase dated 29 March 1859:

1Which Maori tribe or tribes according to customary law principles of "take" and occupation or use, had rights of ownership in respect of all or any portion of the land contained in those respective  deeds  at  the  dates  of these deeds;

2If more than one tribe held ownership rights, what area of land was subject to those rights and what were the tribal boundaries?

(o)       The  Maori  Appellate  Court  has  now  heard  the  iwi  and  persons affected and gave its decision on 15 November 1990 as follows:

The Ngai Tahu tribe according to customary law principles of "take" and occupation or use has had the sole rights of ownership in  respect  of  the  lands  comprised  in  both  the Arahura and Kaikoura Deeds of Purchase at the respective dates of those deeds.

Having decided that Ngai Tahu only is entitled question two above does not require an answer.

(p)The decision of the Maori Appellate Court is binding on the tribunal by virtue of section 6A(6) of the Treaty of Waitangi Act 1975.

(q)The tribunal observes however that the grievance claims  already filed with the tribunal from Kurahaupo-Rangitane, Mr Mervyn N Sadd, Messers R P Stafford and H M Solomon together with any other grievances affecting lands in the northern South Island beyond the determined rohe of Ngai Tahu will in due course be dealt with by the tribunal.

[21]     Negotiations between Ngai Tahu and the Crown to achieve a settlement of the Ngai Tahu claim, in the light of the Tribunal report, took place from 1991 to

1997. One step in the settlement process was the establishment of an appropriate governance entity for Ngai Tahu. The Te Runanga o Ngai Tahu Act 1996 (the Runanga Act) was passed in April 1996. Section 5 of that Act described the takiwa of Ngai Tahu whanui. That was described as all the area of Te Waipounamu south of the northern most boundaries described in the Maori Appellate Court decision. The line delineated in s 5 is that which I have briefly described in paragraph [5].

[22]     On  21 November  1997  the  Crown  and  Ngai  Tahu  executed  a  deed  of settlement.  The Ngai Tahu Claims Settlement Act 1998 (the Settlement Act) was enacted on 1 October 1998, to give effect to the settlement.   The takiwa of Ngai Tahu whanui was identified as the area in s 5 of the Runanga Act and the Ngai Tahu claim area was defined as being that area plus the adjacent coastal marine area and fisheries waters.

[23]     In 1998, Ngati Apa and Ngati Rarua commenced proceedings in the High

Court   seeking   judicial   review   of   the   Maori   Appellate   Court   decision   of

15 November 1990.  The proceeding was struck out by Ellis J on 24 June 1999, on the basis that the proceedings for judicial review were precluded by the Ngai Tahu legislation.  On appeal to the Court of Appeal, that order was varied by the Court of Appeal by the substitution of orders that the prayer for relief which sought the setting

aside of the order of the Maori Appellate Court was struck out, but Ngati Apa was able to amend its application to incorporate a request for a declaration that the order was invalid.

[24]     In the meantime, some 35 Te Tau Ihu claims had been grouped together by the Waitangi Tribunal for inquiry, under number WAI 785.  The claims comprised grievances in respect of the area of the South Island north of the takiwa of Ngai Tahu whanui and also claims in respect of grievances affecting land within the Ngai Tahu takiwa.  Those claims (or at least some of them) had originated as cross claims in the Ngai Tahu claim, WAI 27.  In September 1991, the Tribunal drew upon the Maori Appellate Court definition of Ngai Tahu’s takiwa to establish a southern boundary for the inquiry.  The Tribunal noted that that ruling was subject to judicial review (in the proceedings earlier described) and directed that the Tribunal would focus on claims north of that line while that litigation was underway.  At the commencement of the hearing of those claims, in August 2000, Ngai Tahu challenged the Tribunal’s jurisdiction to hear the claims of Te Tau Ihu iwi within the Ngai Tahu takiwa.  Ngai Tahu’s position was described by the Tribunal in these terms:

… Ngai Tahu confirmed their position as being based on the twin pillars of the Ngai Tahu settlement namely the issue of the legal personality of the title itself and the association of the tribe with its traditional takiwa.  Ngai Tahu maintain that they have enjoyed full and exclusive rights and interests within the Ngai Tahu claim area and that all incidences of those exclusive rights – including rangatiratanga, aboriginal title, customary rights, manawhenua, manamoana, and any other right or interest, however described – reside in Ngai Tahu.  No other iwi held or holds any rights in the Ngai Tahu takiwa

Having regard to their position, Ngai Tahu clearly stated their view that the Tribunal did not have jurisdiction to inquire into any aspect of any claim concerning any matter within the Ngai Tahu takiwa, as defined by the Ngai Tahu Claims Settlement Act 1998.

[25]     The   Tribunal   issued   its   decision   on   the   jurisdiction   question   on

3 November 2000.  Its conclusion was expressed in these terms:

When answering this question in relation to the various arguments raised by Ngai Tahu, the Tribunal reached the same conclusion on each issue.  That is, that this Tribunal is not prevented from embarking on this inquiry and the jurisdictional bars raised by Ngai Tahu do not bar the Tribunal’s jurisdiction at the outset of this inquiry.  At this stage of the proceedings on the issues that matter, which have been set out above, we consider that Ngai Tahu have not displaced the statutory and common law principles of interpretation. They have not displaced the compelling and relevant judicial precedents set

out in Wharekauri Rekohu and Ngati Apa.   They have not displaced the natural justice rights of Te Tahu Ihu iwi to be heard in this inquiry.  These issues can be properly determined only as the inquiry proceeds and the evidence of the Te Tahu Ihu iwi is heard and considered.   If will be only after consideration of all the evidence that this Tribunal can determine whether it has jurisdiction on the particular issues raised.   The Tribunal therefore adjourns its determination as to jurisdiction and will consider the jurisdiction question on an issue-by-issue basis as the inquiry progresses and when it has the full evidential background before it. …

[26]   Ngai Tahu sought judicial review in the High Court of the Tribunal’s jurisdiction decision.  That was heard by McGechan J over four days in March 2001 with judgment delivered on 4 April 2001.  Briefly stated, he held:

(a)      The  legislation  had  not  removed  the  jurisdiction  of  the  Waitangi Tribunal  to  hear  claims  by  Te  Tau  Ihu  iwi  simply  because  they asserted historic interest within the Ngai Tahu takiwa;

(b)The Maori Appellate Court decision had not precluded the hearing of the Te Tau Ihu iwi claims or other new claims by the Tribunal;

(c)      Ngai Tahu was entitled to appear and be heard on any claim which asserted the existence of an interest within the statutory takiwa;

(d)The Tribunal could deal with the question of jurisdiction both on a claim by claim and an issue by issue basis.

(e)      A declaration dealing with the way in which the Tribunal proposed to deal with the cross-examination of witnesses was granted, but in other respects the claims were dismissed.

[27]     Ngati Apa appealed to the Court of Appeal against the declaration relating to cross-examination.   Ngai Tahu cross appealed against the dismissal of its other claims, on the jurisdiction issue.  The appeal was allowed, on the cross-examination point, but Ngai Tahu’s cross appeal was dismissed.  The judgment of the Court of Appeal was delivered on 1 November 2001.  Ngai Tahu sought leave to appeal to the Privy Council but leave was refused by the Court of Appeal in a judgment delivered

on 13 December 2001.   An application to the Privy Council for special leave to appeal was dismissed in April 2002.

[28]     Shortly after that, in June 2002, Ngati Apa’s proceedings, which had been struck out by Ellis J, but partially restored by the Court of Appeal, were heard in the High Court.  In a judgment delivered on 1 September 2002, France J held that there had been no breach of natural justice or other duty to act fairly and that the Maori Appellate Court had made appropriate enquiries and taken the appropriate steps to meet the requirements of nature justice.  That decision was in turn appealed to the Court of Appeal.  It was dismissed by a judgment delivered on 22 October 2003.  A further appeal by Ngati Apa to the Privy Council was dismissed in October 2006.

[29]     The Waitangi Tribunal had in the meantime been hearing the Te Tau Ihu iwi claims in WAI 785.  The first hearings of the claim were in August 2000.  There was then a gap following the Ngai Tahu challenge to the Tribunal’s jurisdiction, after the Tribunal’s decision of November 2000 was given.   Following that litigation, there were then hearings, both generic and iwi specific, relating to the area north of the Ngai Tahu takiwa boundary and, in August 2003, a hearing directed towards Te Tau Ihu claims inside the statutory Ngai Tahu takiwa.  Closing submissions were heard in February and March 2004.

[30]     Two preliminary reports on the Te Tau Ihu claims were issued in 2007.  The second preliminary report dealt with Te Tau Ihu customary rights in the statutory Ngai Tahu takiwa.   The Tribunal’s final report was delivered in September 2008. Negotiations between the Crown and Te Tau Ihu iwi had already commenced before the Tribunal’s report was delivered and on 11 February 2009 letters of agreement between the Crown and Te Tau Ihu iwi were signed regarding settlement redress. Negotiations for settlement of the Te Tau Ihu iwi grievances on the basis of the Tribunal report are ongoing.

[31]     In November 2007, before the final report had been issued, but following the issue  of  the  preliminary  reports,  these  proceedings  were  issued  by  Ngai  Tahu, seeking judicial review of aspects of (at that stage) the second preliminary report.

The claim is now concerned with the final report, which repeats the findings in the preliminary reports.

The essence of the Ngai Tahu challenge

[32]   The essence of Ngai Tahu’s challenge to the Tribunal’s findings and recommendations in the Te Tau Ihu Iwi Report is that the Tribunal was bound by the findings of the Maori Appellate Court decision and that it had no jurisdiction under s 6 of the Treaty of Waitangi Act 1975 to inquire into the competing rights of iwi because those rights had already been determined by the Maori Appellate Court decision.   Ngai Tahu further contends that the Tribunal was bound not to make findings inconsistent with the earlier Ngai Tahu report issued by it because it had, in the course of the inquiry leading to the Ngai Tahu report, inquired into the question of the rights and interests of both Ngai Tahu and the Te Tau Ihu iwi in the area south of the boundary line.  Ngai Tahu contends that in that report, and in the Te Tau Ihu Iwi Report, the Tribunal was bound by the decision of the Maori Appellate Court.

[33]   The grounds upon which it is said that the challenged findings and recommendations of the Tribunal in the Te Tau Ihu Report constitute an error of law were summarised by counsel for Ngai Tahu in the following terms:

(a)       Section 6A(6) of the Treaty of Waitangi Act 1975 provides that the

Tribunal is bound by the decision of the Maori Appellate Court;

(b)The Tribunal is bound not to make findings inconsistent with its own earlier report which dealt with the same subject matter and parties; and

(c)       The   Maori   Appellate   Court   determined   the   same   question subsequently   determined   by   the   Tribunal   and   therefore,   in accordance  with  the  principles  of  issue  estoppel,  any  party  is estopped from having that question considered again.

[34]     It is convenient to consider the issues in this case by addressing the three broad heads of the Ngai Tahu submission set out in paragraph [33] above.  Before addressing  those  issues,  it  is  necessary  to  summarise  briefly  the  Tribunal’s discussion, findings and recommendations, in the Te Tau Ihu Report, so far as they relate to the claims with the Ngai Tahu takiwa.

The Te Tau Ihu Report

[35]     In Chapter 3, the Tribunal dealt with Te Tau Ihu iwi customary rights in the Ngai Tahu statutory takiwa.   It noted that the claimants assert that they also (with Ngai Tahu) had customary rights in the takiwa.  It noted that customary rights can derive from several sources, and there could be bundles of rights or overlapping rights.  It noted the issue of boundaries in Maori custom and whether iwi and hapu were divided from one another by strictly defined and rigidly observed tribal boundaries.  Ngai Tahu contended for the strictly defined boundaries upheld in the Maori Appellate Court decision, while the claimants contended for core territories divided from one another by broad zones in which iwi had overlapping rights.  There was a lengthy discussion of the evidence on the issue.   The conclusions of the Tribunal were:

(a)      That Rangitane, Ngai Toa and Ngai Tahu all had rights in the east coast takiwa, though these rights were based on different take.  Those rights as found by the Tribunal were set out;

(b)That various tribes with a historical presence in the west coast part of the  takiwa  all  had  rights,  which  varied  considerably  in  character. Those rights as found were set out.

[36]     In  Chapter  13,  the  Tribunal  discussed  the  1990  Maori  Appellate  Court decision and the subsequent Ngai Tahu legislation.   It did so in the context of addressing the Te Tau Ihu iwi grievances on:

(a)       The enactment of s 6A and the reference of the boundary issue to the

Maori Appellate Court;

(b)      The role of the Crown in the Maori Appellate Court;  and

(c)      The Crown’s treatment of the Te Tau Ihu iwi rights in the course of negotiations with Ngai Tahu and the enactment of the Runanga Act and the Settlement Act.

[37]     The  Tribunal,  in  its  discussion  on  (a),  concluded  that  s 6A  was  poorly conceived but was not in breach of the Crown’s Treaty obligations to Te Tau Ihu iwi. It expressed the view that the decision of the Tribunal not to involve Te Tau Ihu iwi in the formulation of the case stated had serious consequences for them, in that the questions put to the Maori Appellate Court were framed entirely in terms of the Crown’s engagement with Ngai Tahu in the late 1850s, rather than in terms of who held customary rights in the area.

[38]     On (b), the Tribunal expressed the view that the Crown had a duty to place all known  relevant  information  in  its  possession  before  the  Court.    By adopting  a

‘watching brief’ and failing to make available evidence in its possession which was, in the Tribunal’s view, crucial to the establishment of rights in the area, the Crown was in breach of the Treaty principles of active protection and equal treatment.

[39]     As to (c), the Tribunal noted that it had reached a very different conclusion from  that  of  the  Maori  Appellate  Court,  from  its  different  starting  point  of considering whether Te Tau Ihu iwi also had customary rights within the Ngai Tahu takiwa.  It noted that neither the Runanga Act nor the Settlement Act prevents the Crown recognising and settling claims of other iwi, and said that, in incorrectly interpreting the legislation to give Ngai Tahu an exclusive interest in the takiwa, the Crown had limited the assets available for settlement with Te Tau Ihu iwi.  It said:

We find that the Crown has not breached its Treaty obligations to Te Tau Ihu iwi by the passing of, or the content of, the Te Runanga o Ngai Tahu Act

1996 or the Ngai Tahu Claims Settlement Act 1998.  However, in dealing

with Ngai Tahu exclusively within the Ngai Tahu takiwa, the Crown has breached the principles of active protection and equal treatment, and Te Tau Ihu iwi have been prejudiced as a result.  We strongly recommend that the Crown take urgent action to ensure that these breaches do not continue.  If the Crown does not accept this recommendation, it will not only perpetuate the breaches set out above but will also add unnecessary and increased tension to the relationships between Ngai Tahu and Te Tau Ihu iwi.

[40]     The Tribunal summarised its conclusions and recommendations in Chapter

14.  On the issues relevant here, it said:

Finally,  we  make  recommendations  with  respect  to  Te  Tau  Ihu  iwi customary interests within the statutorily defined takiwa.  We note that Te Tau Ihu iwi have lost the ability to recover their interests in lands within the takiwa which have been vested in Ngai Tahu as a result of earlier Crown

settlement, and consequently we strongly recommend that the Crown take urgent action to ensure that these breaches do not continue.   We also recommend that the Crown negotiate with those Te Tau Ihu iwi identified in our report as having customary interests within the statutorily defined takiwa to agree on equitable compensation.

The effect of s 6A(6) of the Treaty of Waitangi Act 1975

[41]     Section 6A as relevant provides:

(1)       Where a question of fact,—

(a)      Concerning Maori custom or usage; and

(b)Relating  to  the  rights  of  ownership  by  Maori  of  any particular land or fisheries according to customary law principles of “take” and occupation or use; and

(c)      Calling for the determination, to the extent practicable, of

Maori tribal boundaries, whether of land or fisheries,—

arises in proceedings before the Tribunal, the Tribunal may refer that question to the Maori Appellate Court for decision.

…

(6)The decision of the Maori Appellate Court on any question referred to  it  under  subsection  (1)  of  this  section  and  on  any  appeal determined by it pursuant to subsection (4)(b) of this section shall be binding on the Tribunal.

[42]     The essence of the dispute between the parties is whether the decision of the Maori Appellate Court is binding on the Tribunal in all cases and for all matters which fall within its jurisdiction, or whether its binding effect is limited to the proceedings  before  the  Tribunal  in  which  the  question  referred  to  the  Maori Appellate Court arose.

[43]     Counsel for Ngai Tahu submits that as a matter of statutory interpretation the decision  of  the  Maori  Appellate  Court  is  binding  on  the  Tribunal  however constituted  and  is  therefore  binding  on  the  Tribunal  in  the  WAI 785  inquiry. Counsel submits that it cannot be correct to say that the decision of the Maori Appellate Court was binding only on the Tribunal hearing the case and that is not what the section says.  Counsel submits that this interpretation is supported by the

legislative context, the policy objective of finality and the expertise of the respective fora.  Counsel for the defendants generally take issue with these submissions.

[44]     The effect of s 6A has been addressed to some extent in the earlier litigation. That provides a starting point for a consideration of this issue.   Ngati Apa Ki Te Waipounamu Trust v The Queen [2000] 2 NZLR 659 was an appeal against the striking out of Ngati Apa’s application for judicial review of the Maori Appellate Court decision. That is the litigation I have briefly described in paragraph [23] above. Ellis J, in his decision to strike out, had held that the Runanga Act and the Settlement Act were based on an understanding by Parliament that Ngai Tahu’s claim over the takiwa was exclusive and that valid claims by other tribes were non existent following the Maori Appellate Court decision. Ngati Apa appealed against that decision. All members of the Court agreed that the terms of the two Acts were effective to preclude the making of any order setting aside the Maori Appellate Court decision. That aspect of Ellis J’s decision to strike out was affirmed. For present purposes, what is particularly relevant is the expression of the views of the members of the Court of Appeal on two subsidiary questions:

(a)       Whether the ability of iwi other than  Ngai  Tahu  to  pursue treaty grievance claims within the Ngai Tahu takiwa was excluded;  and

(b)      What effect the Maori Appellate Court decision might have on the

Tribunal’s consideration of any such claims.

[45]     As to the first question, Elias CJ stated the broad issue in the appeal in these terms (at paragraph [1]):

The question raised by the appeal is whether, in the Act which settles the Ngai Tahu treaty claims, Parliament has deprived the people of Ngati Apa who live on the West Coast of the South Island of the status to raise their own claim.

[46]     The Chief Justice addressed the nature of the issue more specifically, in a way which is relevant to the second question, in paragraph [22]:

…   The matter for decision is whether the Te Runanga o Ngai Tahu Act

1996 and the Settlement Act prevent any challenge by Ngati Apa by way of

judicial review to the Maori Appellate Court decision. The Court is not called upon to express any view on the merits of the claim for judicial review. Nor is it necessary to express any opinion upon whether, if the statutes are no impediment, the Waitangi Tribunal is bound in its consideration of the Ngati Apa claim by the determination of the Maori Appellate Court (a proposition which seems to me to be doubtful but upon which we heard no argument). If the decision in the High Court is correct, it is not for this Court on the present appeal to speculate what claims to the Waitangi Tribunal by Ngati Apa may survive, even if the claims which rely upon entitlement to lands within the recognised takiwa of Ngai Tahu are barred by the statute. The nature and extent of any surviving claims depend upon the Treaty promises. By s 5(2) of the Treaty of Waitangi Act 1975 the Waitangi Tribunal has exclusive authority to determine the meaning and effect of the Treaty for the purposes of any claim.

[47]     The Chief Justice held that the terms of the two Acts did not exclude the possibility of claims by other iwi in relation to lands within the takiwa.  She said:

[50]The acknowledgment by the Crown that it recognised Ngai Tahu as holding rangatiratanga within the takiwa defined by s 5 of the Te Runanga o Ngai Tahu Act 1996 is not expressed to exclude the claim of any other tribal grouping outside Ngai Tahu to mana or rangatiratanga in relation to lands within the takiwa, if not inconsistent with the recognition accorded to Ngai Tahu. Given the concession of counsel for Ngai Tahu that it is theoretically possible for two tribal groups to have rangatiratanga in respect of the same district, there is no necessary implication of exclusivity.

…

[58]Clearly, the rights granted to Ngai Tahu may (depending upon the exercise of its option by Ngai Tahu), present an impediment to Ngati Apa's  receiving  reparation  from the  existing  landholdings  of  the Crown within the takiwa of Ngai Tahu, if Ngati Apa is successful in the Waitangi Tribunal and if the recommendations of the Waitangi Tribunal are agreed to by the Crown.

[59]Such impediment is not however fatal to the Ngati Apa Waitangi Tribunal claim. In the first place it may not eventuate if Ngai Tahu does not wish to exhaust the Crown land reserves within the area in which Ngati Apa claims an interest. In the second place, the claim to the Waitangi Tribunal is not a claim for land. It is a claim that the Crown has acted in breach of its Treaty obligations of protection. If found to be substantiated, the claim may be answered by a range of remedies consistent with the settlement made with Ngai Tahu. That is a matter for the Waitangi Tribunal and for the Crown on receipt of its recommendations. In my view Part 9 of the Settlement Act provides no impediment to Ngati Apa's pursuit of its claim.

…

[81]For the reasons I have given in discussing the structure and language of the Settlement Act, the provisions of the enactment are perfectly

workable without any assumption that claims by non-Ngai Tahu are precluded. In my view, moreover, any such implication of purpose would have to be irresistible. This case trenches upon basic rights. If the respondents are right, Parliament has legislated to deny Ngati Apa the right of access to the Courts and to the Waitangi Tribunal in respect of its tribal land-based interests in the West Coast. If the respondents are right, Parliament has denied Ngati Apa the status as people of mana in that land.

…

[83]Parliament has not expressly enacted that Ngati Apa can assert no Treaty or customary interest in the West Coast lands. It has not expressly purported to affect Ngati Apa's status or to deem the land within the takiwa of Ngai Tahu to be exclusive of Ngati Apa's interests. No such implication is necessary for the Settlement Act to work. The benefits conferred by the statute upon Ngai Tahu by the Settlement Act cannot be undone by Ngati Apa's claim.

[48]     Gault J said:

[96]If Ngati Apa wish to advance a claim on the basis of some interest in the land less than ``ownership'' it would seem that the Maori Appellate Court decision is of no relevance. To the extent that their purpose is to contest findings made in the course of the Maori Appellate  Court's  reasoning  but  not  forming  part  of  the  order, judicial review of the ultimate decision is inappropriate and unnecessary.

…

[98]I add this comment that if the position is as asserted, denial to Ngati Apa of the opportunity to advance a claim inconsistent with a statute might itself be a breach of their Treaty rights. That is not a matter for the Courts, however, as they are bound to give effect to the statutes of Parliament.

[49]     Keith J said of s 6A:

[101]We did not have extensive argument on the matter, but the three paragraphs appear to be cumulative and to confer only one power of decision    on    the    Maori    Appellate    Court:    the    power    of

``determination'' of boundaries in terms of para (c). That aspect of the scope of the power does not affect my conclusion in this appeal,

nor does the extent of the binding effect of the decision. Does that

effect extend beyond the particular claim before the tribunal which gives rise to the reference to the appellate Court and does it bind parties who were not before the tribunal in that claim or the Court in the related proceedings?

[50]     He then went on to answer that question principally by a consideration of the way in which the Maori Appellate Court decision was reflected in the Runanga Act

and the Settlement Act.  He observed (at paragraph 104) that the legislation does not give any direct general effect to that part of the Maori Appellate Court decision which refers to “the sole rights of ownership in respect of the lands comprised in both the Arahura and Kaikoura deed of purchase”.  He referred (at paragraph 111) to Ellis J’s  view  “that  the  Act  is  drawn  and  the  settlement  concluded  on  the understanding that Ngai Tahu’s claims over its takiwa were exclusive claims and valid claims by other tribes were non existent following the Maori Appellate Court decision” and went on to say:

[112]As I trust I have already made clear, I read the references to the 1990 decision in the 1996 and 1998 Acts (direct in the first and indirect in the second) in a much more limited way. Those references do not incorporate the notion of exclusivity over  the  whole of  the  area within the takiwa with the consequence that no claims by other tribes were  still  possible.  To  repeat,  so  far  as  the  1990  decision  is concerned,  the  Acts  make  direct  use  only  of  the  boundary  it indicates. Whether Ngati Apa can bring claims in the face of the Settlement Act depends on the particular rights, interests and values of Ngai Tahu which that Act confers and recognises (including of course  Ngai Tahu's  rights of  preemption  discussed  by  the  Chief Justice and Tipping J) and the particular terms and the detail of the claims. The 1996 Act is concerned with the internal organisation of Ngai Tahu. At this stage of the litigation it cannot be said that those Acts stand flatly in the way of all the relief sought.

[51]     Blanchard and Tipping JJ said:

[149]Part 9 of the Settlement Act is of considerable importance. In short, Ngai Tahu is given a right of first refusal if the Crown wishes to dispose of any land within Ngai Tahu's takiwa. Both conceptually and practically this provision is inconsistent with Ngati Apa having any outstanding claim to any of that land.  …

[52]     They  went  on  to  state  (at  paragraph  154-5)  that  the  fact  Parliament incorporated the Maori Appellate Court order as an integral part of the Settlement Act precludes the High Court from setting aside the order;   but that it was not necessarily precluded from making an order that the Maori Appellate Court order was made in breach of natural justice or some other procedural requirement.  They went on to say:

[157]Section 6A of the Treaty of Waitangi Act 1975 cannot be regarded as making a finding of the Maori Appellate Court binding on a person who was not a party to the proceedings in which the finding was made; albeit the finding is binding on the Waitangi Tribunal in

that proceeding. Similarly an order not validly made would not of itself be binding on anyone, once the invalidity had been established. Ordinarily such an invalid order would be set aside but here the adoption  by  Parliament  of  the  order  for  the  purposes  of  the Settlement Act makes any such setting aside inappropriate. It must be appreciated that substantive rights in terms of the order and its legislative adoption cannot be altered except by further legislation. Any recommendation of the tribunal would have to take account of the right of first refusal which the Settlement Act gives to Ngai Tahu.

[158]The High Court's inability to set aside the order does not prevent Ngati Apa from alleging as part of its claim to the Waitangi Tribunal that the making of the order and indeed the legislation based upon it represented a breach of its Treaty rights. Again, whether such an allegation would be well founded is an entirely open question. The present proceeding, as noted in para [139], seeks a declaration that Ngati Apa's claim to the Waitangi Tribunal is valid and that the Waitangi Tribunal has jurisdiction to hear and adjudicate upon it. That  aspect  of  the  claim  is  presumably  an  attempt  to  get  a declaration from the Court that the order does not prevent Ngati Apa from making a claim to the tribunal or the tribunal from considering it. We can say immediately that the order cannot be regarded as having that effect. Indeed, as we have said, the order could itself be a source  of  complaint  to  the  tribunal.  As  the  Waitangi  Tribunal's powers are recommendatory only, nothing it may do can affect the legal position of Ngai Tahu or anyone else without legislative action. If  therefore,  in  spite  of  or  because  of  the  order,  the  Waitangi Tribunal considers that Ngati Apa has a justified Treaty grievance on any basis, it may make such recommendation on the subject as it thinks fit.

[53]     Reverting to the two questions I have posed in paragraph [44], it is clear from the passages to which I have referred that the Court of Appeal was unanimously of the view that other grievance claims within the takiwa were not excluded by the way in which the Maori Appellate Court decision was reflected in the legislation.   It necessarily follows, on my reading of the judgments, that such claims cannot have been excluded by the Maori Appellate Court decision itself.  Accordingly, it is clear that the Court of Appeal has answered the first question in the negative.  The answer to the second question (which was not directly in issue) is not so clear.

[54]     The conclusion that claims within the takiwa remained possible would be of very limited value if the effect of s 6A was to require the Tribunal to exclude any claim based upon a breach of right claimed in the takiwa.  The views of the Court of Appeal  on  the  first  question  were  expressed  having  explicit  regard  to  s 6A.    I consider that the decision must be taken to include the proposition that the binding

effect of the Maori Appellate Court decision under s 6A would not extend to the Tribunal’s consideration of the Te Tau Ihu iwi claims in the takiwa.  I deal later with the issue of whether the decision to that effect is part of the ratio decidendi, or whether it is obiter.

[55]     The limited application for judicial review of the Maori Appellate Court decision which was reinstated by that Court of Appeal decision was the subject of the judgment of France J in Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2003] 1 NZLR 779. I have described that briefly at paragraph [28]. Her decision dismissing the application for judicial review was the subject of a further appeal to the Court of Appeal, reported at [2004] 1 NZLR 462. On the issues relevant here, Keith J (delivering the judgment of the Court) specifically noted that the Court was not concerned with whether or not the Maori Appellate Court decision had binding effect beyond the particular Tribunal proceeding in which it was sought. He said:

[13]Given the relief actually sought in this appeal and the position taken by the parties in argument before us, we do not in this judgment address  the  issue  that  may  be  raised  by  that  particular,  that  is, whether the decision given in the context of the Ngai Tahu claim to the tribunal is binding, in terms of subs (6) of s 6A, on the tribunal when it considers other claims made to it. That issue is also, we consider, irrelevant to the pleaded grounds for review. To refer to another particular of the pleadings, we also agree with France J (at para [117]) that nothing turns on the fact that the case was stated to facilitate the hearing of Ngai Tahu's claim to the tribunal. In terms of s 6A, enacted because of a problem arising in respect of that very claim, it is that facilitation that is the purpose of the legislation. Any exercise of the s 6A power will inevitably arise from a particular claim and there may well be the consequence that a particular claimant will be better prepared for the MAC hearing of the case stated than others who are interested. That fact may be relevant, as discussed later, to the argument that a fair hearing had not been given because Ngai Tahu was in an advantageous position as a result of its claim. But to repeat, nothing can be made of the very fact that the statutory jurisdiction has been invoked. The matter must turn on the facts.

[56]     The issues were also the subject of consideration in Te Runanga O Ngai Tahu v Waitangi Tribunal. I have described that litigation briefly at paragraphs [26] and [27]. Ngai Tahu had sought the right to be heard in the Tribunal hearings on the Te Tau Ihu iwi claims. In the course of Ngai Tahu’s application for judicial review of the Tribunal’s rulings on that issue, McGechan J (reported at [2001] 3 NZLR 87)

addressed directly (though arguably obiter, a point to which I return) the proposition that s 6A(6) is binding on the Tribunal for all purposes.  He said:

[76]The separate TOW Act s 6A point presents less difficulty. I do not see s 6A(6) which stipulates that the decision of the Maori Appellate Court is binding on ``the Tribunal'' as precluding jurisdiction in the present  Te  Tau  Ihu  iwi  claims.  The  basis  for  the  Ngai  Tahu contention to the contrary is the definition of ``Tribunal'' contained in s 2 of that Act. The term is  defined to  mean  ``the  Waitangi Tribunal''. That, it is said, is a constant, unaffected by changing membership. An analogy is drawn indeed with the High Court.

[77]     That contention has literalist attractions, but would lead to absurdity.

It would mean the Waitangi Tribunal, however constituted, is bound by a prior Maori Appellate Court determination in all future cases,

even if involving different parties. The tribunal would be bound even if in a situation of advancing research and knowledge – and that

situation is a reality – the Maori Appellate Court was shown to be demonstrably wrong. With the tribunal eternally bound, new claimants with new arguments and new evidence could not even be

heard on the question. The only solution would be piecemeal legislative amendments from time to time.

[78]A  much  more  probable  parliamentary  intention  was  that  ``the Tribunal'' hearing the case was bound. It could not take a different idiosyncratic view. However other tribunals, even if similarly constituted in other cases, would not be bound. The arguments for certainty cannot reasonably be pressed further.

[57]     McGechan J also considered the effect of the Court of Appeal decision which I have described at paragraphs [44] to [53] on the wider question of whether a challenge was possible to the conclusion reached by the Maori Appellate Court, that Ngai Tahu held sole ownership within the relevant takiwa.  He said:

[92]     What is the total effect of these varying and differently expressed views? Clearly, the Chief Justice, and Blanchard and Tipping JJ were satisfied that the Runanga  Act  and  Settlement  Act  did not prevent challenge to the conclusion reached by the Maori Appellate Court that Ngai Tahu held sole ownership within the relevant takiwa. The definition in s 5 of the Runanga Act, the apology and settlement provisions of the Settlement Act, and the statutory bars created in the Settlement  Act  including amendment  of  the TOW  Act  were  not construed as so operating. The only limitation was upon setting aside that order, in view of its incorporation within the legislation (the Chief Justice did not recognise even that). Similarly, the order, despite the legislative setting, did not prevent the Ngati Apa claim to the tribunal based in part upon assertions of entitlements to land within the Ngai Tahu takiwa, or remove the jurisdiction of the tribunal to hear that claim. The conclusions reached by Keith J are with respect somewhat more opaque, but a sufficient majority is constituted without that addition.

[93]Further, and more broadly, the Court of Appeal declined to strike out a prayer which sought a declaration in those last terms ie that Ngati Apa's claim to the Waitangi Tribunal was valid and that the Waitangi Tribunal had jurisdiction to hear and determine it. If the Maori Appellate   Court   order,   Deed   of   Settlement,   and   associated legislation operated as a bar to Waitangi Tribunal jurisdiction, that prayer could not stand. Notwithstanding various ways in which judgments other than that of Gault J are expressed, that ultimate outcome, with that implication, is clear.

[94]I incline to the view the ratio decidendi of Ngati Apa is in those wider terms, and the recognition of Waitangi Tribunal jurisdiction is not  mere  obiter  dictum.  If  so,  I  am  bound  by  the  decision,  a constraint which does not trouble me given my own views as earlier expressed. If I am wrong in that, and the views expressed are mere obiter dicta, it makes little difference. It would not be appropriate for me at first instance to depart from considered and constructive observations of members of a Full Court of the Court of Appeal. That is a privilege, if it may be called that, which should be left to that Court suitably constituted itself.

[58]     That decision too was taken to the Court of Appeal (reported at [2002] 2

NZLR 179).  Tipping J, delivering the judgment of the Court, expressly held that the Tribunal had jurisdiction to inquire into the claim of Ngati Apa and the other claimants.  He said:

[4]      The proceedings in the tribunal are only at the interlocutory stage.

The tribunal has come to no formal conclusions. They can, in any event, have no more than recommendatory force. As indicated at the hearing, we are of the view that the judgments of this Court in Ngati Apa No 1 are such that the cross-appeal must fail. Mr Upton QC for Ngai Tahu was constrained to accept that this had to be the case unless the relevant passages in the judgments were, as he contended, obiter dicta and thus not binding in the present proceeding, albeit he sought to resile to some extent from that stance in a memorandum lodged after the hearing to which we make reference below. Whether the relevant passages are part of the ratio of Ngati Apa No 1, necessarily dictated by it, or simply dicta, we do not think it appropriate in present circumstances to revisit them. They were fully considered statements made in relation to the amendment issue (see para [10] below) and leading to the clear conclusion that the tribunal has jurisdiction to inquire into the claims of Ngati Apa and the other claimants. That is how both the tribunal and McGechan J construed them, and they were right.

…

[8]It is clear from the cited statements, as indeed it is from s 6(1) of the Treaty of Waitangi Act 1975, that a Treaty grievance can be founded on the terms of legislation. It must follow that a grievance can also be based upon something (here the order of the Maori Appellate Court) which has formed the basis of legislation. There is nothing in

the  legislation  to  which  Mr  Upton  referred  which  prevents  the tribunal from inquiring into the claims which Ngati Apa and the other claimants have made. It was for these reasons that we came to the  view expressed  at  the  hearing  that  Ngai  Tahu's  cross-appeal could not succeed.

[59]     On the specific question of whether s 6A(6) made the Maori Appellate Court decision binding on the Tribunal in its consideration of its Te Tau Ihu iwi claims, the Court said:

[21]Specifically we regard the particularisation point raised by the fourth cause of action as covered by prematurity considerations. It cannot be predicated that any natural justice concerns will necessarily arise on this aspect of the case. Nor do we consider Ngai Tahu is in any different position in respect of its third cause of action relating to s

6A(6) of the Treaty of Waitangi Act. What the tribunal may make of

Ngai Tahu's case on this point remains to be seen. It would not in the circumstances be appropriate for anything more to be said on this

topic or, indeed, on the first and second causes of action at this

interlocutory stage. On this basis, and also on account of prejudice to other parties, we decline to grant leave for Mr Upton's memorandum of 4 October 2001 to be filed.

[60]     As I read that passage, it is saying that a decision by the Tribunal on the effect of s 6A(6) on its consideration of the Te Tau Ihu iwi claims would be required before it would be appropriate for the Court of Appeal to consider that question.

[61]     Those passages clearly hold that the Tribunal has jurisdiction to inquire into the Te Tau Ihu iwi claims in the Ngai Tahu takiwa.  On my reading of the decision, they also hold, or at least necessarily imply, that the Tribunal’s power to investigate the Te Tau  Ihu  iwi  claims  is  not  excluded  by the  binding effect  of  the  Maori Appellate Court decision under s 6A(6).

[62]     Despite Mr Kos’ ably argued submissions to the contrary, I consider that all three Court of Appeal decisions must  be taken  to  have  decided  that  the  Maori Appellate Court decision would not be binding on the Tribunal on its consideration of the Te Tau Ihu claims within the Ngai Tahu takiwa.  It has been common ground among all courts and tribunals which have considered the question that the Te Tau Ihu iwi claims arising from grievances within the takiwa had to be resolved.  For the reasons I give later in paragraph [71], I consider that the Tribunal recognised that in the Ngai Tahu Report, at paragraph 1.6.12 (q), set out in paragraph [20] above.  The

Court of Appeal has also recognised that, in the passages from all three decisions I have cited.   It seems highly unlikely that the Court of Appeal would, on three occasions, have referred to the possibility of Te Tau Ihu iwi claims, if those claims were doomed to failure because of the binding effect of the Maori Appellate Court decision.  The possibility that the Runanga Act or the Settlement Act might give rise to a grievance claim was expressly upheld.  A grievance could only be justified if the legislation had prejudicially affected the Te Tau Ihu iwi.  That could be so only if the Tribunal considered that the Te Tau Ihu iwi or any of them had interests within the takiwa before the legislation was passed.  If the Te Tau Ihu iwi were precluded from asserting such rights by s 6A(6), it is difficult to imagine what meaningful claim might have remained.

[63]     I do not consider it necessary to embark upon a detailed analysis of the extent to which the various passages to which I have referred in forming that view of the effect of the decisions of the Court of Appeal form part of the rationes decidendi of these cases, or are obiter dicta.  I am inclined to the view that I am bound by the earlier  decisions  to  hold  that  s 6A(6)  is  not  binding  on  the  Tribunal  in  its consideration of the Te Tau Ihu claims with the Ngai Tahu takiwa.  It is unnecessary for me to decide that question, since it would arise only in the event that I would, if not bound, consider that I should give a different answer.  Forming my own view of the matter, and assuming for the purposes of doing so that the previous decisions have left open the effect of s 6A(6) on the Tribunal’s consideration of the Te Tau Ihu iwi claims, I am of the view that the binding effect of subs (6) does not extend to the Tribunal’s consideration of these claims.  I need do no more, in stating my reasons for that conclusion, than record my concurrence with the views of McGechan J at paragraphs [76] to [79] of his judgment in Te Runanga o Ngai Tahu v Waitangi Tribunal [2001] 3 NZLR 87 (set out at paragraph [56] above. He has expressed, more succinctly and cogently than I could hope to do, the reasons why that is so.

[64]     For these reasons, the view which I have formed independently of the various decisions, is consistent with them.  Furthermore, even if the earlier decisions are not technically binding, they must be highly persuasive.   Once again, my view on the effect of those decisions is expressed better than  I could do by McGechan J  at paragraph [94] of his judgment:

I incline to the view the ratio decidendi of Ngati Apa is in those wider terms, and the recognition of Waitangi Tribunal jurisdiction is not  mere  obiter dictum. If so, I am bound by the decision, a constraint which does not trouble me given my own views as earlier expressed. If I am wrong in that, and the views expressed are mere obiter dicta, it makes little difference. It would not be appropriate for me at first instance to depart from considered and constructive observations of members of a Full Court of the Court of Appeal. That is a privilege, if it may be called that, which should be left to that Court suitably constituted itself.

[65]     They way in which the Tribunal has approached the effect of the Runanga Act and the Settlement Act, and the Maori Appellate Court decision, on the Te Tau Ihu iwi claims is consistent with the approach foreshadowed in the Court of Appeal decisions.  The decision in Chapter 3, as summarised in paragraph [35] above was, for  the  reasons  I  have  given,  a  necessary  precursor  to  the  discussion  of  the grievances consider in Chapter 13, as summarised in paragraph [36] above.   That discussion relates to the very matters discussed by the Court of Appeal.   I do not consider that there is anything in any of the passages in the Te Tau Ihu Report to which my attention has was drawn which indicates a failure to have proper regard to s 6A(6), applied as it was with the guidance given by the earlier decisions.

[66]     For these reasons, I find that the Tribunal has not erred in law, in dealing with the Te Tau Ihu iwi grievances, by failing to give proper effect to s 6A(6).   This aspect of the plaintiff’s claim must fail.

Inconsistent Findings

[67]     The second ground upon which Ngai Tahu relies is that the Tribunal is bound not to make findings inconsistent with its own earlier decision.  Counsel submits that once an administrative decision has been formally made, the decision will be irrevocable and it is irrational for a later inconsistent decision to be made on the same facts unless the later decision is made in light of changed circumstances or sufficient reasons are provided to demonstrate that the earlier decision was flawed. It is submitted that the findings and recommendations of the Tribunal are administrative decisions as opposed to judicial decisions, and that neither of the situations in which a different decision would be justified apply here.

[68]   Counsel for Ngai Tahu submits that inconsistency is established as an independent ground of review, and refers to the passage in Joseph Constitutional and Administrative Law in New Zealand (2nd Edition) at page 997 as follows:

Inconsistency of treatment or of substantive outcome may amount to an abuse of discretion.  The duty has both procedural and substantive content. In administrative law terms, a failure to act consistently may overlap with the grounds of Wednesbury unreasonableness, error of law for misinterpretation of relevant criteria, substantive unfairness, legitimate expectation, or acting beyond a decision-maker’s delegated powers.

[69]     Counsel refers to the decision of the Court of Appeal in Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 and Zaoui v Attorney-General [2005] 1 NZLR 577. Counsel also refers to Kyeburn Downs Ltd v Commissioner of Crown Lands HC DUN CIV-2008-412-000197 30 October 2008, and to a number of United Kingdom and Australian authorities which are said to support the following propositions:

(a)       Once  an  administrative  decision  has  been  formally  made,  the decision will be irrevocable and it will be irrational for a later inconsistent decision to be made on the same facts.

(b)There are two situations where a subsequent inconsistent decision may be allowed to stand.  The first is where an earlier decision can be validly substituted by a later decision if the later inconsistent decision is made in light of changed circumstances.  The second is when adequate reasons are given by the decision maker to show that the earlier decision was flawed.

[70]     Ngai Tahu’s submissions as to how those propositions are said to apply in this case are as follows:

(a)       The findings and recommendations of the Tribunal in the Wai 27

Report were validly made in reliance on the Maori Appellate Court decision and were communicated to the persons to whom they relate.

The claims of Te Tau Ihu iwi to rights and interests within the Ngai

Tahu takiwa were dealt with by the Tribunal through the Maori

Appellate  Court  decision  leaving  claims  to  rights  and  interests outside  Ngai Tahu  takiwa  to be  dealt  with  in  due  course.    The findings and recommendations of the Tribunal were then relied upon for  the  subsequent  settlement  of  historic  grievances  between  the Court and Ngai Tahu.  The findings of the Maori Appellate Court, as relied upon by the Wai 27 Tribunal, have also been incorporated into statute by way of section 5 of the TRONT Act.

(b)       The  circumstances  have  not  changed  between  the  time  that  the

Wai 27 Report was published and when the Tribunal delivered the

Wai 785 Report.   The most that can be said here  is  that  as the Tribunal itself stated:   “We opted for an alternative arrangement” (Te Tau Ihu iwi Report, page 153).

(c)       Nor has the Tribunal provided reasons to demonstrate that the Ngai Tahu Tribunal Report and/or the decision of the Maori Appellate Court were flawed.  The procedural validity of the Maori Appellate Court decision has been upheld by the High Court, Court of Appeal and Privy Council.  The Tribunal has not identified a large amount of  new  factual  material  which  puts  the  decision  of  the  Wai 27

Tribunal or the Maori Appellate Court in doubt.

[71] Dealing with (a), the first proposition, as to the validity of the findings and recommendations in the WAI 27 report, is not in question. I do not accept the second proposition, that the claims of Te Tau Ihu iwi to rights and interests within the Ngai Tahu takiwa were dealt with by the Tribunal in the WAI 27 report, leaving only claims outside the Ngai Tahu takiwa to be dealt with in due course. The Tribunal in the Ngai Tahu report dealt with the cross claims within the takiwa only in paragraph 1.6.12 (q), set out above at paragraph [20]. The specific cross claims which are referred to in that paragraph all related to claims at least partly within the Ngai Tahu takiwa. I do not consider that the further reference to “any other grievances affecting lands in the northern South Island beyond the determined rohe of Ngai Tahu” is properly to be interpreted as constituting a determination, by dismissal, of those cross claims which did make claims within the Ngai Tahu rohe.

[72]     It does not appear that either the Tribunal or any of the Courts which have considered the issue have interpreted the Tribunal’s Ngai Tahu report as dismissing the Te Tau Ihu iwi claims within the Ngai Tahu takiwa, so as to preclude any further decision in relation to those claims by the Tribunal.  As I have said in relation to the s 6A point, the possibility that the legislation (the Runanga Act and the Settlement Act) might itself have constituted a breach of the Treaty necessarily depended upon the possibility that a claimant may have had rights within the takiwa which were extinguished by the legislation, or in respect of which an available remedy may have been precluded by the legislation.  That possibility would not have existed if there had been a final and irrevocable finding by the Tribunal that no claimant had any potential claim within the takiwa, and dismissing any claim to the extent that it related to lands within the takiwa.  That means that Ngai Tahu’s claim that there has been an earlier formal decision by the Tribunal dealing with the claims of Te Tau Ihu

iwi to rights and interests in the Ngai Tahu takiwa is not made out. That makes it unnecessary to consider the submissions in (b) and (c) in paragraph [70].

[73]     Ngai Tahu’s submission that the consideration of the claims within the takiwa in WAI 785, and the terms in which these claims were addressed in the Te Tau Ihu Report, constituted an unlawful reopening of an earlier administrative decision must fail.

Issue Estoppel

[74]     The third ground on which Ngai Tahu relies to support the argument that the Tribunal has acted outside its jurisdiction is the ground of issue estoppel.  Ngai Tahu submits that the question as to which iwi, according to customary law principles, have rights of ownership over lands comprised in the Arahura and Kaikoura Deeds of Purchase was resolved by the Maori Appellate Court decision.  It submits that in accordance with the principles of issue estoppel, any party is now estopped from having the question considered again.   Counsel refers to the formulation of the principle of issue estoppel as stated in Shiels v Blakeley [1986] 2 NZLR 262

Where a final judicial decision has been pronounced by a New Zealand judicial  tribunal  of  competent  jurisdiction  over  the  parties  to,  and  the subject-matter of, the litigation, any party or privy to such litigation, as against any other party or privy thereto, is estopped in any subsequent litigation from disputing or questioning the decision on the merits.

[75]     In applying that principle, counsel submits:

In accordance with Shiels v Blakeley, in order to establish issue estoppel to bar another claim the following elements must be established:

(a)       the decision was made by judicial tribunal, final and on the merits;

(b)the judicial tribunal had jurisdiction over the parties and the subject matter;

(c)       the decision determined the same question as that raised in the later litigation;  and

(d)the parties to the later litigation were either parties to the earlier litigation, or the earlier decision was in rem.

[76]     I  consider  that  there  are  difficulties  with  all  of  those  propositions  here. Several of these difficulties are addressed by counsel for the defendants in some detail.   I consider that it is not necessary for me to address those submissions in detail, or in the same form as counsel addressed them.  A brief discussion, following the format of these propositions, will suffice.

[77]     The decision of the Maori Appellate Court in 1990 was that of a judicial tribunal, in terms of proposition (a).  However, I think it is not clear beyond doubt that the doctrine of issue estoppel does necessarily extend to that decision.   The decision was not one given in litigation between Ngai Tahu and the Te Tau Ihu claimants and directly deciding their rights.  It was a decision answering the question posed by the Tribunal.  While it was binding on the Tribunal, the Tribunal’s function was  not  a  decision  making  one.    Its  function  was  recommendatory only.    The Tribunal is not a Court and the doctrines of res judicata and issue estoppel do not apply to its decisions.   That has been clearly established in Te Runanga o Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641 at 651. I think it is open to question whether a judicial decision which, though final in itself, has an effect which is limited by the terms of s 6A, does fall within the scope of the doctrine of issue estoppel. However, as I consider that, for the reasons which follow, the doctrine is inapplicable for other reasons, it is not necessary for me to consider that question.

[78]     The proposition in (b) that the Tribunal had jurisdiction over the parties and the subject matter is not clear beyond doubt.  While they were treated as parties by the Maori Appellate Court in the course of its hearings, the cross-claimants did not participate in the process of formulating the question for the Maori Appellate Court. The Tribunal has regarded that as significant.  The inability to participate as a party in the formulation of the question may affect the extent to which the doctrine of issue estoppel should apply to the answer.  For similar reasons to those I have given for proposition (a), I do not consider it necessary to embark on a discussion of whether proposition (b) is met.

[79]     Proposition (c) requires that the question be raised in later litigation.   Issue estoppel is specifically directed to the effect of an earlier decision in later litigation. It is not directly concerned with the effect of an earlier decision outside the litigation

context.  As I have said, the Tribunal is not a Court.    That point is relevant to the reservation I have raised at proposition (a).   It is also relevant to proposition (c). Because the Tribunal is not a Court, its proceedings are not litigation.  The doctrine of res judicata and issue estoppel are directed towards avoiding the relitigation of issues previously decided.  The extent to which an earlier judicial decision will be binding upon the parties in a context other than later litigation between these parties is in my view open to question.  Again, however, it is unnecessary for me to discuss this issue in detail.  It is preferable to deal with the aspect of proposition (c) which was the particular focus of the argument before me, namely whether the decision (if the discussion, findings and recommendations in the Te Tau Ihu Iwi Report can properly be called such), determined the same question as that determined in the Maori Appellate Court decision.

[80]     The Te Tau Ihu Iwi Report addressed treaty grievances by the iwi concerned. Those were issues which the claimants were entitled, by virtue of s 6 of the Treaty of Waitangi Act, to bring before the Tribunal.  Under s 6(2) the Tribunal was under a duty to inquire into those claims.  I have summarised at paragraphs [35] to [40] the Tribunal’s discussion on the relevant issues.  It is apparent from that discussion that the issues to be decided by the Tribunal were not the same as the question answered by the Maori Appellate Court.  The question before that Court related to ownership of the lands in the Kaikoura and Arahura deeds of purchase at their respective dates. The Tribunal addressed the essential difference between the question determined by the Maori Appellate Court decision and the questions which it was  required  to address in paragraph 13.5.4 of the Te Tau Ihu Report in these terms:

We  have  reached  a  very  different  conclusion  from  that  of  the  Maori Appellate Court.   As we pointed out earlier, our starting perspective was very different to that of the court.   There, the Ngai Tahu case against the Crown provided the context for the questions posed to the court by the Tribunal.  The questions set the date of Ngai Tahu sales with the Crown as the point to determine customary ownership and were instrumental to the manner in which the court considered rights of ownership.  This placed Te Tau Ihu iwi at a disadvantage, as their customary rights and rights admitted by earlier Crown purchases became secondary to rights of ownership as at the dates of the Arahura and Kaikoura sale deeds with the Crown.

The parameters set for the court enabled it to arrive at is decision that Ngai

Tahu had exclusive rights south of the statutorily defined boundary.

By contrast, our starting point was to consider whether Te Tau Ihu iwi also had customary rights within the Ngai Tahu takiwa.   In undertaking this inquiry, it should be made very clear that this Tribunal is not an appellate body.    Our  role  is  not  to  consider  whether  the  Maori  Appellate  Court decision was right or wrong.   Our role is to examine all the evidence submitted to us by Te Tau Ihu iwi and arrive at our own conclusions based on that evidence.

[81]     I consider that the Tribunal had the right, indeed the duty, to define for itself the questions which it had to consider in addressing the Te Tau Ihu iwi claims.  It was not bound to accept the terms in which the question had earlier been framed, if it considered that inappropriate.   Its formulation meant that it was dealing with a different question.   It was not bound, in answering that different question, by the answer given by the Maori Appellate Court to the question before it.   Nor was it bound  by  issue  estoppel  to  apply,  without  its  own  separate  consideration,  the findings of fact or reasoning of the Maori Appellate Court in reaching its answer to that different question.

[82]     Counsel for Ngai Tahu, in support of the submission that the Tribunal did consider the same question that had already been determined by the Maori Appellate Court, points to the following passage in Chapter 14.5 of the Te Tau Ihu Reports:

Our overall conclusion was that Te Tau Ihu iwi had customary rights in the takiwa, which overlapped the acknowledged rights of Ngai Tahu.  At 1840, Rangitane and Ngati Toa held customary interests in the east coast portion of the takiwa north of Waiau-toa that had been included in the Kaikoura purchase.   Ngati Apa, Ngati Rarua, Ngati Tama, and Te Atiawa held continuing customary rights in the West Coast portion, from Kawatiri northward, the had been included in the Arahura deed.  We were of the view that Ngati Toa had a latent right in that area, but the opportunity was not developed and its remained notional only.

[83]     That conclusion does not directly conflict with the answer given by the Maori Appellate Court, in that its answer addressed the position only at the date of the Arahura and Kaikoura Deeds.  It is therefore inherent in Ngai Tahu’s submission that what is binding on the Tribunal is not just the answer given, but also the reasoning on which the answer was based, including the findings made on the historical evidence relating to the customary land principles of take and occupation on use.  I do not consider that the doctrine of issue estoppel extends to these matters.  To apply the doctrine to the historical analysis and reasoning of the Maori Appellate Court as well as to the answer given as a result of that analysis would extend the doctrine

beyond its proper scope.  The determination which is relied upon as establishing a res judicata or issue estoppel must be fundamental, not collateral.  The difficulty is to distinguish the matters fundamental to the prior decision from those which are collateral.  The distinction is discussed in Blair v Curran (1939) 62 CLR 464. The distinction depends, as the learned authors of Spencer Bower Turner and Handley “The Doctrine of Res Judicata” (3rd Edition) say in their discussion of that case at paragraph 202, on whether the determination was so fundamental to the decision that the latter cannot stand without it. Even when that condition is met, there is another

test to pass:  that the determination is the “immediate foundation” of the decision and not merely a collateral or subsidiary proposition;   i.e. no more than part of the reasoning supporting the conclusion.   I consider that the Maori Appellate Court findings on the historical evidence as to the nature of rights of all iwi prior to the Deeds of Purchase in the late 1850s is properly to be viewed as part of the reasoning supporting its conclusion as to ownership at the dates of the respective Deeds, and is not so fundamental that the decision cannot stand without the findings as to the rights, or lack of rights, at other periods in the history of occupation of the areas.

[84]     It  is  also  relevant  that  recourse  to  the  doctrine  of  issue  estoppel  is  not necessary to ensure the effectiveness of the answer given by the Maori Appellate Court in favour of Ngai Tahu.  That decision has been given legislative effect in the Runanga Act and the Settlement Act.  The previous litigation makes it clear that that legislation must prevail.  No need for the application of the doctrine of issue estoppel arises, since the decision of the Maori Appellate Court has been given legislative effect in a way which renders reliance on that doctrine unnecessary.

[85]     On the question of issue estoppel I hold that the question answered by the Maori Appellate Court was not the same question as that before the Tribunal.  I hold that the Tribunal has not erred in law by failing to treat the reasoning or the conclusions of the Maori Appellate Court as determinative of the issues before it. For these reasons, the third ground of Ngai Tahu’s challenge must also fail.

Result

[86]     For the reasons I have given, the plaintiff’s application for judicial review is dismissed.

[87]     Costs are reserved.  The parties may submit memoranda.

“A D MacKenzie J”

Solicitors:           Bell Gully, Wellington, for Plaintiff

Crown Law, Wellington, for First and Second Defendants

Gascoigne Wicks, Blenheim, for Third Defendant

Wain & Naysmith, Blenheim for Fourth Defendant
Kensington Swan, Wellington, for Fifth Defendant

Kahui Legal, Wellington for Sixth Defendant

Hardy-Jones Clark, Blenheim, for Seventh Defendant
Kathy Ertel & Co, Wellington for Eighth Defendant