Te Runanga O Ngai Tahu v The Waitangi Tribunal HC Wellington CP7/01
[2001] NZHC 248
•4 April 2001
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CP7/01
UNDER The Judicature Amendment Act 1972
AND IN THE MATTER of the Treaty of Waitangi Act 1975
BETWEEN TE RUNANGA O NGAI TAHU
Plaintiff
AND THE WAITANGI TRIBUNAL
First Defendant
AND BARRY MATTHEW MASON, SHARON GEMMELL, JOHN TE RANGI O KIWA MORGAN, ROBERT PINEAHA STEPHENS, ARTHUR PHILLIPS, WIREMU TAPATA STAFFORD and RUSSELL JAMES THOMAS
Second Defendants
AND KERI WRIGHT STEPHENS, MARAMA JOAN STEVENS, FREDERICK TE MIHA, HEMINGAMOANA ROPATA, JAMES ALBERT PATRICK MYERS and JOHN TAHANA WARD-HOLMES (WAI 723 CLAIMANTS, NGATI TAMA)
Third Defendants
AND HER MAJESTY QUEEN ELIZABETH II
Fourth Defendant
AND EDWARD CHAMBERS JUNIOR (WAI 469 CLAIMANTS, NGATI AWA) Fifth Defendant
AND KATHLEEN HEMI, MARGARET DIANE BOND, REX GAPPER, DENIS RANGI GAPPER, ROBERT EDWIN McKINNEY, BARRY MATTHEW MASON, ALICE BATT, AUDREY McLAREN and JUNE ROBINSON
(WAI 521 CLAIMANTS, NGATI APA)
Sixth Defendants
AND ELAINE JOSEPHINE WILSON, JAMES HAKARAIA WALKER, MARIE DAWN HART, TANIA ROSLYN HIPPOLITE, PETER CHESTER HEMI and PAATA HIPA McCREADY (WAI 561 CLAIMANTS, NGATI KUIA)
Seventh Defendants
AND JANE DU FEU, C H BYRNE, B E A BILLENS, A J F BUNT, C M LOVE, H T RURU, R M T PARK, L BAILEY, R POWICK and T NORTON
(WAI 607 CLAIMANTS, TE ATIAWA)
Eighth Defendants
AND PIRIHIRA HAMMOND, ARIANA RENE, RUTA RENE, MATUAIWI SOLOMON, RAMARI WINEERA, HAUTANGA TE HIKO-LOVE, WIKITORIA WHATU, RINGI HOROMONA, HARATA HOROMONA, RANGI WERETA, TUTIRA WILLIAMS, RUIHI HOROMONA and MANU KATENE
(WAI 207 CLAIMANTS, NGATI TOA)
Ninth Defendants
AND FRANK McDONALD and ENOKA McDONALD
(WAI 44 CLAIMANTS, RANGITANE)
Tenth Defendants
Hearing: 19, 20, 21 and 22 March 2001
Counsel:
J Upton QC, C Hall and R Brown for Plaintiff
Mr W M Wilson for First Defendant
T J Castle and E Shaw for Second Defendants
J P Ferguson with K Ertel for Eighth Defendant and S Sharpe for Third, Seventh, and Tenth Defendants
M J Doogan and K C Millard Fourth Defendant
No appearance for Fifth Defendant
D L Mathieson QC for Sixth Defendants
P B Churchman and K E Mitchell for Ninth Defendants
Decision: 4 April 2001
RESERVED JUDGMENT OF McGECHAN J
The Proceeding
[1] This is an application for judicial review. It is brought by Ngai Tahu against the Waitangi Tribunal in relation to rulings dated 3 November 2000 relating to jurisdiction and 28 November 2000 relating to procedure. Respondents other than the Tribunal comprise the Crown and iwi of Te Tau Ihu, the northern tip of the South Island. Broadly speaking, Ngai Tahu allege the Tribunal has erred in law in accepting it can have jurisdiction in relation to Te Tau Ihu claims so far as such impinge on the statutorily recognised Ngai Tahu takiwa, and has breached natural justice in prescribing a form of procedure under which Ngai Tahu has only limited and staged participation in those Te Tau Ihu iwi claims. There are concurrent complaints as to lack of particularisation, said by Ngai Tahu to bear adversely upon early determination of the jurisdictional problems in issue. The proceeding revives some very old differences between Ngai Tahu and northern invaders of former times. It may also have a modern dimension in linkages between coastal territory and fishing right allocations. Strong feelings exist on both sides.
[2] The matter is one of some urgency as the Te Tau Ihu hearing is underway, albeit slowly given current under-funding of the Tribunal. One hearing (Ngati Rarua) has taken place. Another, Ngati Koata, also has taken place but did not involve intrusion into Ngai Tahu takiwa. The others are to come.
The Background
[3] A sketch must suffice.
[4] From 1986 Ngai Tahu made applications to the Waitangi Tribunal in relation to asserted breaches by the Crown in the South Island. Those claims included grievances arising from the 1859 Kaikoura purchase and 1860 Arahura purchase. In 1987, as hearings were about to commence, cross claims were lodged by or on behalf of certain Te Tau Ihu. Te Tau Ihu alleged territories which overlapped, in some cases through Buller and well down the West Coast. This assertion was and remains anathema to Ngai Tahu. It was also a difficulty for the Tribunal, constituted as it was to resolve differences between Maori and the Crown, not between Maori and Maori. In the outcome a legislative amendment was obtained now represented in s 6A of the Treaty of Waitangi Act 1975 allowing the Tribunal to refer disputes of that nature to the Maori Appellate Court for decision. Reference was made accordingly in 1989.
[5] On 15 November 1990 the Maori Appellate Court ruled. Its ruling, in summary, was that “ownership” (as defined) of the lands comprised in the Kaikoura and Arahura deeds of purchase lay with Ngai Tahu alone. There is considerable unhappiness amongst Te Tau Ihu iwi as to the manner in which that decision was reached. It was, nevertheless, binding upon the Tribunal concerned. The Tribunal heard the Ngai Tahu claims on that basis. From 1 February 1991 onward reports issued which accepted substantial breaches of the treaty had occurred on the part of the Crown.
[6] Negotiations between Ngai Tahu and the Crown followed. I say no more than is notorious: they were difficult, protracted, and politicised. Some years onward agreement was reached. This found embodiment in an “on account settlement”, and in legislation including the Te Runanga O Ngai Tahu Act 1996 (the “Runanga Act”) establishing the runanga as the incorporated representative of Ngai Tahu and recognising the Ngai Tahu takiwa northern boundary in terms of the Kaikoura and Arahura deeds, a deed of settlement between Crown and Ngai Tahu dated 21 November 1997 (the “Deed of Settlement”), and the Ngai Tahu Claims Settlement Act 1998 (the “Settlement Act”), which incorporated within it amendments to the Treaty of Waitangi Act 1975 (“the TOW Act”) adding s 6(9) and following.
[7] The effect of the Maori Appellate Court decision in 1990, and of the Deed of Settlement and related legislation outlined above, will require consideration.
[8] Meantime, Te Tau Ihu iwi had sought to overturn the Maori Appellate Court decision recognising the Ngai Tahu takiwa south of the Kaikoura and Arahura deed northern boundaries. There were various challenges, none effectively pursued until the proceeding launched by Ngati Apa to which I will refer further.
[9] As noted, Te Tau Ihu iwi filed claims with the Tribunal based on asserted territories which extended south into that takiwa, in some cases substantially. The claims were filed between 1987 and 1998. Some claims initially were launched through umbrella organisations, but all subsequently divided along lines represented by Defendants in these proceedings and were later consolidated as WAI785.
[10] In 1998, Ngati Apa also filed proceedings in the High Court seeking judicial review of the 1990 Maori Appellate Court decision. Ngati Apa alleged breaches of duty and of natural justice on the part of the Court through insufficient resourcing and denial of hearing. Crown and Ngai Tahu sought orders striking out the proceeding on the basis the claims involved could not succeed given the legislative adoption of the Maori Appellate Court order, and other provisions of the legislation. The proceeding was struck out in the High Court. An appeal was argued on 4 November 1999 with judgment delivered 8 May 2000. The upshot of the Appellate judgment was to allow the proceeding to continue on a restricted basis which sought declaratory relief as to the unlawfulness of the Maori Appellate Court decision, and as to the validity of the Ngati Apa claims to the Waitangi Tribunal and the existence of Tribunal jurisdiction to hear that claim. I will term the Court of Appeal’s decision (reported at [2000] 2 NZLR 659) the “Ngati Apa decision”. The substantive proceeding has not yet been heard. The implications of the Ngati Apa decision will require consideration.
[11] Unsurprisingly given history both ancient and recent, Ngai Tahu sought to challenge the Te Tau Ihu assertions of overlapping territory. Ngai Tahu did not seek party status, but sought the right to be heard under s 4A Commissions of Inquiry Act 1908. As the first Te Tau Ihu iwi claim came on for hearing, Ngai Tahu challenged jurisdiction. This lead to the Tribunal’s ruling of 3 November 2000 already mentioned (the “jurisdiction decision”). The Tribunal considered jurisdiction could exist, but was fact-dependent to a point where determinations should be made on a claim by claim and issue by issue basis. With jurisdiction left open on that basis the Tribunal made the 28 November 2000 standing decision already mentioned allowing Ngai Tahu only restricted and delayed participation.
[12] This claim by Ngai Tahu has followed. An interim relief application was refused and adjourned, with the substantive hearing afforded urgency.
The Legislation
[13] I set out the following for convenient reference. Regard also should be had to the Settlement Act (long) title, Preamble para B, para M (North Canterbury/Kaikoura and Arahura), s 6 Apology para 7, s 8 Interpretation, s 8 definition of “Takiwa of Ngai Tahu Whanui”, s 9 definition of “Ngai Tahu”, and s 10 definition of “Ngai Tahu Claims”.
Treaty of Waitangi Act 1975 s 6A(1)(6)
“6A Power Of Tribunal To State Case For Maori Appellate Court Or Maori Land Court
(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 . . .shall be binding on the Tribunal.”
Te Runanga O Ngai Tahu Act 1996 ss 3, 5
“3 ACT TO BIND THE CROWN AND OTHER PERSONS-
This Act binds the Crown and every person (including any body politic or corporate) whose rights are affected by any provision of this Act.
. . .
5 TAKIWA OF NGAI TAHU WHANUI-
The Takiwa of Ngai Tahu Whanui is all the area of Te Waipounamu south of the northernmost boundaries described in the decision of the Maori Appellate Court in Re a claim to the Waitangi Tribunal by Henare Rakiihia Tau, 12 November 1990, 4 South Island Appellate Court Minute Book 672 (reproduced in the report of the Waitangi Tribunal on the Ngai Tahu claim, February 1991, Volume 3, page 1122). . .”
Ngai Tahu Claims Settlement Act 1998 ss 461, 462
(s 462 enacts s 6(9)-(12) Treaty of Waitangi Act 1975)
“461 Settlement Of Ngai Tahu Claims To Be Final
(1) The settlement of the Ngai Tahu claims to be effected pursuant to the deed of settlement and this Act is final, and the Crown is released and discharged in respect of those claims.
(2) Subsection (1) does not limit the deed of settlement.
(3) Despite any other enactment or rule of law, no court or tribunal has jurisdiction to inquire or further inquire into, or to make any finding or recommendation in respect of,-
(a) Any or all of the Ngai Tahu claims; or
(b) The validity of the deed of settlement; or
(c) The adequacy of the benefits provided to Te Runanga o Ngai Tahu and others under this Act or the deed of settlement; or
(d) This Act.
(4) Subsection (3) does not exclude the jurisdiction of a court or tribunal in respect of the interpretation or implementation of the deed of settlement or this Act.
(5) This section does not limit the jurisdiction of the Maori Land Court in the implementation of sections 14 and 15 of the deed of settlement.
462 Jurisdiction Of Tribunal To Consider Claims
Section 6 of the Treaty of Waitangi Act 1975 is amended by adding the following subsections:
“(9) Despite anything in this Act or in any other Act or rule of law, on and from the settlement date, the Tribunal does not have jurisdiction to inquire or further inquire into, or to make any finding or recommendation in respect of,-
“(a) Any or all of the Ngai Tahu claims, as defined in section 10 of the Ngai Tahu Claims Settlement Act 1998; or
“(b) The deed of settlement, as defined in section 8 of the Ngai Tahu Claims Settlement Act 1998; or
“(c) The benefits provided to Ngai Tahu under that deed of settlement or the Ngai Tahu Claims Settlement Act 1998; or
“(d) The Ngai Tahu Claims Settlement Act 1998.
“(10) Subsection (9) does not exclude the jurisdiction of the Tribunal in respect of the interpretation or implementation of the deed of settlement or the Ngai Tahu Claims Settlement Act 1998.
“(11) Without limiting subsection (9), the Tribunal does not have jurisdiction, in relation to licensed land (within the meaning of the Crown Forest Assets Act 1989) in the takiwa of Ngai Tahu Whanui, to make a recommendation for compensation or for the return to Maori ownership of the land.
“(12) In this section, ‘settlement date’ has the meaning given to it in section 8 of the Ngai Tahu Claims Settlement Act 1998.””
The Tribunal’s “Jurisdiction Decision”
[14] The Tribunal noted submissions by Ngai Tahu and Te Tau Ihu iwi, and by the Crown. I set these out as so noted. They illuminate the issues raised.
[15] Ngai Tahu submitted to the Tribunal that jurisdiction was a question of law not fact.
[16] After a preliminary point that the Tribunal’s role at law was to determine disputes between the Crown and Maori, and that the present dispute was between maori and maori, Ngai Tahu focused strongly on ss 461 and (particularly) 462 of the Settlement Act (enacting s 6(9) TOW Act) as barring jurisdiction. The Ngai Tahu submission was that s 462 could not be wider, and should not be read down. It was put as designed to achieve finality for Ngai Tahu, and as ousting the jurisdiction of the Tribunal in relation to both Ngai Tahu and all other maori claimants. More specifically, ss 461 and 462 barred jurisdiction unless the claimant could show the claim was not within the definition of a “Ngai Tahu claim” in s 10 Settlement Act. Any challenge to Ngai Tahu’s exclusive rights, however formulated, was within that definition and barred. Ngai Tahu, it was said, were responsible for approving the legislation, and would not have agreed if there had been outstanding claims within their takiwa. Thus, as soon as a claim intruded into the statutorily defined takiwa, the Tribunal was barred.
[17] Ngai Tahu also submitted the Tribunal was bound pursuant to s 6A TOW Act by the 1990 Maori Appellate Court decision that Ngai Tahu had sole ownership in the takiwa (as enshrined in the Runanga Act).
[18] Ngai Tahu also raised the Runanga Act. It was put as intended to define the northern boundary and to identify the takiwa. Ngai Tahu referred to (unspecified) provisions said to reinforce their exclusive status within that takiwa. The Runanga Act was to be interpreted so as to benefit Ngai Tahu. The enshrining of the northern boundary reinforced that rights within the boundary could not be claimed or inquired into by the Tribunal.
[19] Ngai Tahu claimed Te Tau Ihu iwi were barred by res judicata and issue estoppel from pursuing claims to the Tribunal.
[20] Te Tau Ihu iwi denied the question of jurisdiction was purely one of law, without any questions of fact. It was put as common on jurisdictional arguments to hear evidence of fact.
[21] Te Tau Ihu iwi submitted that ss 461 and 462, and within that s 6(9) TOW Act did not bar jurisdiction to inquire, make findings, and recommend. Te Tau Ihu iwi were noted as relying on the general s 5 and s 6 TOW Act obligations, the general purpose and functions of the Tribunal, and on Treaty principles of active protection, the judgment in Te Runanga O Wharekauri Rekohu Inc v Waitangi Tribunal (unreported, HC Wellington, 12 May 1994 CP118/94 Heron J) which had directed prior factual investigation before determination of jurisdiction, so-called general principles of statutory interpretation (unspecified), and the Ngati Apa decision on ss 461 and 462 Settlement Act and with that s 6(9) TOW Act.
[22] Te Tau Ihu iwi submitted the 1990 Maori Appellate Court decision was binding only on the exact question of fact put to the Court, and only on the Tribunal which put the question. Section 6A TOW Act was not a bar.
[23] Te Tau Ihu iwi invoked the judgment in Ngati Apa (other than the judgment of Gault J) to meet the Runanga Act recognition of takiwa. Those judgments, it was submitted, established the Runanga incorporated body as the sole representative of Ngai Tahu but did not prevent other iwi from asserting interests in land within the takiwa.
[24] Te Tau Ihu iwi, after separate submissions regarding involvement or otherwise in past litigation, joined in submission that res judicata was not a jurisdictional bar to the Tribunal in the inquiry. The Tribunal was a unique body. Further, the Tribunal could not determine as preliminary questions bars by issue estoppel (and, it added, res judicata).
[25] The Crown submissions noted the Tribunal’s general jurisdiction and established practice.
[26] As to ss 461 and 462, and s 6(9) TOW Act, the Crown submitted none of Te Tau Ihu iwi were within the definition of a “Ngai Tahu claimant”. It was a matter of fact for determination by the Tribunal whether any Te Tau Ihu iwi said to be affected by grievances were associated with Ngai Tahu in such a way as to constitute a “Ngai Tahu claimant”. There was not yet sufficient information to suggest whether the bars were triggered.
[27] There is no note in the Tribunal decision of any Crown submission regarding s 6A TOW Act, the Runanga Act, or res judicata and issue estoppel.
[28] On the Settlement Act s 461 and 462, and s 6(9) TOW Act, the Tribunal rejected the Ngai Tahu submissions.
[29] First, and generally, the Ngai Tahu submission was criticised as not considering in sufficient depth the empowering provisions of the TOW Act, the principles and purpose for which the Tribunal was established, and the breadth of its jurisdiction. Ngai Tahu had concentrated unduly upon s 6(9). The Tribunal aligned itself with the Wharekauri Rekohu approach under which if jurisdiction prima facie existed there should be a full factual inquiry before jurisdictional determination. The existence in the present case of the Maori Appellate Court’s order was not seen as a distinguishing feature. The Tribunal noted that (with the partial exception of Ngati Rarua) it still only had bare pleadings. The Tribunal considered it should hear all the historical evidence of Te Tau Ihu iwi, not merely part of it. Subject to ss 461 and 462, and s 6(9) TOW Act, the Tribunal could not prohibit the claims at this early stage of the inquiry.
[30] Second, more specifically on ss 461 and 462, the Tribunal noted the observations in the Ngati Apa case of Keith J (115), the Chief Justice (54) and Blanchard and Tipping JJ (151). The Tribunal noted the parties accepted those were obiter dicta (the ratio being confined to the claim to set aside the Maori Appellate Court order being struck out), but accepted such were “relevant and persuasive”. More directly, the Tribunal turned to principles of statutory interpretation: rules of interpretation as to access to Courts, privative clauses, general implication of rules of law, and Lord Cooke’s so-called “fundamental common law rights”. The Tribunal observed (page 17):
“These principles of interpretation, in our view, are so compelling that when they are considered in relation to section 461 or section 462 of the Ngai Tahu Claims Settlement Act 1998 and section 6(9) of the Treaty of Waitangi Act 1975 we can see no justification for Ngai Tahu’s submission on this point. These provisions do not expressly prevent Te Tau Ihu iwi’s claims from being made to the Tribunal and they do not expressly preclude Te Tau Ihu iwi from being heard on their claims. These provisions refer to Ngai Tahu claims, as defined by the Ngai Tahu Claims Settlement Act 1998. These are the claims which are precluded. These are the claims which are settled with the Crown. The Settlement Act is between the Crown and Ngai Tahu, not the Crown and Te Tau Ihu iwi. There are no clear words to exclude claims, other than Ngai Tahu claims. It is these claims that are settled by the Ngai Tahu Claims Settlement Act 1998, not claims of Te Tau Ihu iwi. It is inconceivable that Parliament could have intended without clear and precise wording to preclude Te Tau Ihu iwi from making claims to this Tribunal.”
[31] The Tribunal then observed (pages 17-18):
“The Te Tau Ihu claims before this Tribunal are not on their face Ngai Tahu claims. However, as stated earlier, with the exception of Ngati Rarua we have not received particularised statements of claim and it is simply too early to determine whether any of the Te Tau Ihu claims or parts of those claims fall within the definition of a Ngai Tahu claim. It will be a matter of fact for this Tribunal to consider, and if after hearing the historical grievances of Te Tau Ihu iwi it is considered that the claim or a part of it is a Ngai Tahu claim, then this Tribunal will have no jurisdiction at that point to proceed.”
[32] The Tribunal was not satisfied on this (or the maori versus maori issue) that it had sufficient information to decline jurisdiction: that would be determined as the inquiry progressed.
[33] On s 6A TOW Act, the Tribunal quoted the questions put to, and the answer by, the Maori Appellate Court, and observations in the Ngati Apa case by Blanchard and Tipping JJ (157, 159) and the Chief Justice (17). The Tribunal expressed its agreement. The Maori Appellate Court decision was binding on the Tribunal in the Ngai Tahu claim, but not “on this Tribunal in a general sense or in respect to issues or parties different from the issues or parties referred to in the specific questions placed before the Maori Appellate Court”. The Maori Appellate Court decision “may” prevent the Tribunal from considering breaches “which rely on the specific issues referred to in the issues determined by that Court. That is, the ownership of the land comprised in the Arahura and Kaikoura purchases as at the respective dates of those deeds”. Those, however, and that jurisdictional bar, could be determined only during the course of the inquiry.
[34] As to the Runanga Act, the Tribunal quoted judgments in the Ngati Apa case of Keith J (112) and the Chief Justice (35, 36, 38), and accepted that interpretation (described as that of the “majority”). The Runanga Act is only for Ngai Tahu, not referring to Te Tau Ihu iwi. It did not prevent claims, or bar the Tribunal. The Tribunal needed (was “put on notice”) to “take cognisance” of the provisions of the Runanga Act, but those were issues and considerations which would occur only during the course of the inquiry.
[35] As to res judicata and issue estoppel, the Tribunal ruled it could not determine whether those doctrines operated until it had heard the full evidence. When it had the evidence, it could consider further whether exact parties and exact issues were involved. At that time, it would also be “appropriate to comment” whether those doctrines are relevant to a Commission of Inquiry.
[36] The Tribunal also noted three other matters.
[37] First, the Tribunal was “reluctant to fix boundaries” for iwi, there often being “overlapping claims or layered rights within the same area”. Maori interests could not be described by European property rights terms. Views to that effect “cannot be disregarded” when considering the Te Tau Ihu iwi claims. Further, many of the Te Tau Ihu iwi whakapapa to Ngai Tahu also, and “you cannot draw a boundary line through whakapapa”. Once again, this was a matter which required evidence.
[38] Second, a Ngai Tahu claim that if jurisdiction existed Te Tau Ihu iwi claims should be dismissed under s 7 as open to “alternative approaches” (unspecified) and as made in bath [sic] faith was not accepted. The Tribunal was the appropriate body (“the unique body”) to hear such claims. Bad faith could only be determined after the factual background was obtained.
[39] Third, Te Tau Ihu iwi had invoked the prejudice which would be caused if the Tribunal did not hear their claims. Reference was made to s 6 (consistent interpretation) and s 27(1) (right to natural justice) of the Bill of Rights. Ngai Tahu denied there was a right to be heard, on a basis of need for finality in the public interest. The Tribunal ruled that as a Commission of Inquiry it was obliged to comply with natural justice, and under s 4A of the Commissions of Inquiry Act Te Tau Ihu iwi—having an interest greater than the public—were entitled to appear and to be heard.
[40] The Tribunal then distilled its position (p27). After noting the issue as
“whether this Tribunal has jurisdiction to hear aspects of the northern South Island claims relating to interests within the Ngai Tahu takiwa”
the Tribunal observed:
“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 Tau Ihu iwi to be heard in this inquiry. These issues can be properly determined only as the inquiry proceeds and the evidence of Te Tau Ihu iwi is heard and considered. It 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. By making this statement, we do not mean that the Tribunal will be issuing interim reports at the conclusion of the hearing of each of the Te Tau Ihu iwi claims. This Tribunal will issue one report at the conclusion of the hearings in this regional inquiry.”
Jurisdiction : The Ngai Tahu Case
[41] Ngai Tahu mount four causes of action in relation to jurisdiction. The first three turn upon legislation: the Runanga Act, Settlement Act, and s 6A TOW Act respectively. The fourth cause of action rests on alleged breach of natural justice, and goes to standing arguments also. I will deal with the first, second and third causes of action first, as there are common considerations. Ngai Tahu put the third cause of action based on the Treaty of Waitangi Act s 6A(6) in the forefront of argument, but I will take the three causes of action in their pleaded sequence.
[42] The first cause of action as to jurisdiction is based on s 5 of the Runanga Act. Section 5 is put as incorporating the Maori Appellate Court decision in 1990, said to establish that Ngai Tahu are sole owners and have all relevant rights in the takiwa. Section 5, it is said, binds all. The Tribunal decision that “the Runanga Act does not operate as a bar” is a material error of law. The Act, it is said, bars Te Tau Ihu iwi from saying they hold lands or rights in that Ngai Tahu takiwa (unless the asserted rights can be distinguished from those determined by the Maori Appellate Court). Submissions emphasise that s 5 refers to the takiwa as “all” the lands concerned, as contrasted with part only of the lands; and s 3 (despite the Private nature of the Act) uniquely is extended to bind every person whose rights are affected by it. The Act is to be interpreted according to the principles of the Treaty, an interpretation said to support Ngai Tahu. In addition to the wording of the Act, its background as outlined in affidavits by Sir Tipene O’Regan and Sir Douglas Graham point to intended exclusivity. Submissions by Te Tau Ihu iwi to the Select Committee considering the Bill seeking express reservation of their rights were not actioned. The Ngati Apa decision is not an obstacle.
[43] The second cause of action is based on ss 461 and 462 of the Settlement Act, the latter enacting s 6(9)-(12) of the TOW Act. Ngai Tahu plead that the Tribunal’s jurisdiction is excluded by s 6(9)(a) of the Waitangi Tribunal Act, and the Tribunal erred in law by ruling it was too early to determine whether the Te Tau Ihu iwi claims fall within a “Ngai Tahu claim” as defined and thus within the s 6(9)(a) bar. Ngai Tahu also plead—confusingly as a particular of the s 6(9)(a) argument, but really on a standalone basis—that the Tribunal erroneously did not address s 6(9)(c), said to bar the Tribunal from inquiring into the Ngai Tahu settlement “benefits”. One of those “benefits”, it is said, was confirmation of the Ngai Tahu exclusive entitlement in the takiwa. Inquiry into asserted Te Tau Ihu rights is put as ipso facto an inquiry into that benefit, and barred accordingly. In this Court, in apparent contrast to argument before the Tribunal, the whole focus was upon this latter s 6(9)(c) argument.
[44] Submissions developed contention that the Settlement Act on its face plainly recognises Ngai Tahu as having sole ownership and rangatiratanga. Submissions emphasised (i) references to Ngai Tahu as “the” tangata whenua in the long title and apology (ii) the rights of first refusal and in relation to coastal tendering conferred upon Ngai Tahu and (iii) the Topuni status recognised for certain Ngai Tahu sites notably Kahurangi. Ngai Tahu argued further that “rangatiratanga” and “mana” are necessarily exclusive concepts, at least in relevant Ngai Tahu understanding, and it was thus not necessary for the Act to refer to “sole rangatiratanga” or the like. Further, if the legislation is not regarded as plain on its face, Ngai Tahu invoked “(i) the evidence of Sir Tipene O’Regan and Sir Douglas Graham as to intentions of exclusivity for Ngai Tahu rights (ii) the Waitangi Tribunal’s recognition in various cases of the rangatiratanga concept as exclusive (iii) submissions to the Select Committee by Te Tau Ihu which were not accepted (iv) correspondence at solicitor level between Ngati Apa and the Minister in which Ngati Apa sought and were refused a reservation of rights. The “onus” is put as resting on Te Tau Ihu iwi to show their claim is not excluded by s 6(9).
[45] The third cause of action contends that s 6A(6) Treaty of Waitangi Act, as inserted by amendment in 1988, makes the decision of the Maori Appellate Court that Ngai Tahu were sole owners of the takiwa binding upon the Tribunal, unless Te Tau Ihu can show they were not party to the Maori Appellate Court decision, or are making different claims. None, it is said, has established it was not a party, or that it is making a claim not already determined, the onus being on Te Tau Ihu iwi in that respect. The Tribunal’s decision that the Maori Appellate Court decision was binding in Ngai Tahu’s WAI27 claim but not binding on the Tribunal in a “general” sense, or in relation to different parties or issues, and that those issues can only be determined in the course of inquiry, was wrong in law.
[46] Ngai Tahu contends that as a matter of statutory interpretation s 6A(6) states the Maori Appellate Court decision is binding on the “Tribunal”; “Tribunal”; is defined in s 2 in terms which apply to tribunals generally, however constituted, whatever the case, and whatever the time. Further, as a matter of common-sense, it would not be sensible to be required to revisit the same area in relation to the same parties at a later inquiry. Ngai Tahu contend the present Te Tau Ihu iwi claims involve the same parties, but in the course of argument accepted that a determination on that point was not necessary in this Court.
[47] Ngai Tahu also appealed to a wider background. It was the Te Tau Ihu iwi cross-claims in the Ngai Tahu claim which provoked the enactment of s 6A, and the presently relevant Maori Appellate Court reference. In the Ngai Tahu Report following receipt of the Maori Appellate Court decision the Tribunal said that claims “beyond the determined rohe of Ngai Tahu” would be dealt with in due course. The Tribunal had not envisaged determining Te Tau Ihu claims within the rohe of Ngai Tahu.
[48] Again, the Ngati Apa decision was put as no obstacle.
Jurisdiction : Defences by Te Tau Ihu iwi on first, second and third causes of action
[49] I heard detailed argument on behalf of Defendants as to jurisdictional questions raised by the Runanga Act, Settlement Act, and TOW Act s 6A(6). While there were individual differences in detail and in emphasis, there was general cross-adoption of arguments with strong common threads. A summary will suffice. Both Crown, and Te Tau Ihu iwi relied or backed up arguments on many points by selective quotation from the Ngati Apa case, a feature which I will not separately elaborate.
[50] On the first cause of action based on the Runanga Act, submissions were that the Act relates only to the internal organisation of Ngai Tahu. Section 5 defining the takiwa was put as of merely geographical significance, not incorporating the remainder of the Maori Appellate Court’s decision and not expressly or by implication excluding rights of other iwi. The s 3 reference to the Runanga Act binding “all persons” was put as designed to bring in disaffected Ngai Tahu, rather than to exclude claims by other iwi.
[51] The Settlement Act, including s 6(9) of the Treaty of Waitangi Act, was put as directed at settlement of Ngai Tahu claims. It was not directed at claims by other iwi. The “benefits” referred to in s 461(2)(c) and s 6(9)(c) are put as the benefits to Ngai Tahu, not to other iwi. Te Tau Ihu iwi are not “Ngai Tahu claimants” as defined within s 10 of the Settlement Act; or at least cannot be found to be such (eg. by association with Ngai Tahu) until the evidence has been heard by the Tribunal. The Act does not expressly confer exclusive rights within the Ngai Tahu takiwa, and does not expressly exclude other iwi claims. Rangatiratanga, and like concepts, can be held by more than one iwi within the same district. The legislation, it is accepted, may impose limits upon remedies which could be made available by the Tribunal, but does not bar the assertion of rights before it. There was, it was said, no legislative intention to exclude rights of other iwi, with the relevant Select Committee Report and remarks made on the third reading cited in support.
[52] The Treaty of Waitangi Act s 6A(9) is put as rendering the Maori Appellate Court decision binding the Tribunal only in the Tribunal claim concerned (here Ngai Tahu WAI27) and not as being generally applicable to other claims. That is put as the natural meaning consistent with the treaty. The Maori Appellate Court decision does not bind non parties, or bind in relation to different issues. The onus rests on Ngai Tahu to show any identity of parties and issues. The demonstration of such identity requires inquiry before the Tribunal. All Te Tau Ihu iwi, except Ngati Toa, deny party status before the Maori Appellate Court. There are differences in the issues. Claims may be based on less than the “ownership” determined by the Maori Appellate Court. Claims, particularly by Ngati Toa, may be based on “ownership” or equivalents prior to the dates of the deeds in 1859 and 1860 which were the point of reference for the Maori Appellate Court.
Jurisdiction : An approach in principle
[53] Leaving aside for the moment the decision of the Court of Appeal in Ngati Apa, I express the following view as to Tribunal jurisdiction in light of the statutes noted.
[54] The question of Tribunal jurisdiction is one of statutory interpretation. There is no doubt prima facie jurisdiction exists under s 6 of the Treaty of Waitangi Act. The question is whether prima facie jurisdiction is removed. The three statutes concerned are linked, and should be construed together. In terms of s 5 Interpretation Act 1999 meaning is to be ascertained from the text in light of the statutes’ purpose. Fairness and justice of course have a bearing upon probable Parliamentary intention, but are not determinants in their own right. Subjective understandings as to what was intended, held by promoters of the legislation, and even by responsible Ministers of the Crown, are not controlling. The statutes concerned must be considered in light of any relevant Bill of Rights and Treaty requirements.
[55] First in time is the Runanga Act. Section 5 states “the takiwa of Ngai Tahu”. There is no definition of “takiwa”. It may differ from “rohe”, reflecting the more nomadic characteristics of Ngai Tahu, but that difference is not important for present purposes. There is no reference to exclusivity, beyond anything which may be inherent in the word “takiwa” in itself, a topic on which there was no evidence. There is no internal guidance either way from the preamble or elsewhere. I do not place particular weight on the word “the” in present context. As a matter of ordinary language, an area could be “the” takiwa of Ngai Tahu and also “the” takiwa of some other iwi.
[56] It is proper, however, to look to the factual background when the legislation was passed and at s 3.
[57] The factual background comprised Te Tau Ihu iwi claims to the Waitangi Tribunal contesting the Ngai Tahu takiwa, the 1990 Maori Appellate Court decision confirming Ngai Tahu as having sole ownership in the stated Ngai Tahu takiwa, and the Ngai Tahu report which referred to an intention to examine other claims outside the Ngai Tahu takiwa in due course. It would have appeared to Parliament that authoritative sources definitively recognised Ngai Tahu as having sole rights in the takiwa defined. It may well not have been thought necessary to spell that out, although obviously that could have been done as a matter of precaution.
[58] Section 3 of the Act states that it binds “. . .every person . . .whose rights are affected”. The definition of takiwa is to be binding accordingly. This could have been intended as an internal matter relevant only to Ngai Tahu. There were problems over membership of Ngai Tahu, and there were disaffected Ngai Tahu. However it seems inherently likely it was intended to refer, or to refer also, to any outside contests to Ngai Tahu’s takiwa boundaries.
[59] I note in passing the Ngai Tahu (Pounamu Vesting) Act 1997 which vests pounamu within the takiwa of Ngai Tahu defined in terms of the Runanga Act. Pounamu is highly prized. There is no suggestion by way of reservation or otherwise of recognition of other iwi interests.
[60] The Settlement Act, and within that s 6(9)-(12) TOW Act, were passed against this background including the Maori Appellate Court decision of 1990, the Ngai Tahu Report, the Runanga Act with its definition of the Ngai Tahu takiwa, and the Pounamu Vesting Act.
[61] The preamble to the Settlement Act under the heading “Background” Article B states:
“Ngai Tahu is today, and was at the time of the signing of the Treaty, the tangata whenua within the boundaries already confirmed in [the Runanga Act]”.
Section 6 records the text of the apology contained in the earlier Deed of Settlement which states:
“. . .the Crown recognises Ngai Tahu as the tangata whenua of and as holding rangatiratanga within the takiwa of Ngai Tahu Whanui”.
The preamble and apology may not themselves have operative effect, but do point towards a Parliamentary understanding in those terms. It is notable Parliament recognises Ngai Tahu as “the” tangata whenua in the takiwa concerned, not “one of the”.
[62] There are no other provisions pointing towards exclusionary intentions until controversial ss 461 and 462.
[63] Section 461 “Settlement of Ngai Tahu claims to be final” in my view reads naturally as directed at finality between Ngai Tahu and the Crown. Its thrust is to foreclose any reopening as between those two parties. That is natural enough. Finality was essential. There was no room to be left for disaffected elements within Ngai Tahu, or any change of Crown thinking. Section 461 does not read, on its face, as intended to deal with challenges by third parties. Section 462, and within that s 6(9) of the TOW Act, is somewhat more enigmatic on its face. Section 6(9) removes Tribunal jurisdiction to inquire, inquire further, or to make findings or recommendations in respect of Ngai Tahu claims (as defined), the deed of settlement, “the benefits provided to Ngai Tahu under that deed of settlement or the [Settlement Act]”, or the Settlement Act itself. (Section 6(10) follows on by preserving jurisdiction in relation to interpretation or implementation, which obviously may have been necessary to make the settlement work).
[64] Two views as to the meaning and implications of s 6(9)(c) “benefits” are possible.
[65] First, it can be said s 462 containing this provision simply follows on from preceding s 461, ensuring corresponding removal of Tribunal jurisdiction to hear matters covered by the settlement. On that contextual approach, the barrier to inquiry into “benefits provided” applies only to matters raised by either Ngai Tahu or the Crown.
[66] On the other approach, such reference to “benefits provided to Ngai Tahu” prohibits inquiry or the like into such benefits by the Tribunal at the behest of any person at all, including other iwi. Arguably, claims by other iwi (such as Te Tau Ihu in the present case) to entitlements arising within the Ngai Tahu takiwa call into question and require inquiry into and findings in respect of benefits previously provided to Ngai Tahu under the Deed and Settlement Act. If this latter interpretation is correct, the Tribunal jurisdiction to hear such claims is barred.
[67] Taking section 6(9) within the context provided by s 461, I prefer the former approach. Section 6(9) presents most naturally as no more than a follow on from s 461, ensuring no further claims on settlement matters can be dealt with by the Tribunal.
[68] However, there is sufficient ambiguity in s 6(9) to justify a wider perspective. It is not out of place to look at the legislative history or indications as to Parliament’s beliefs and intentions.
[69] I note as a matter of courtesy in that regard the affidavit evidence of Sir Douglas Graham and Sir Tipene O’Regan as to their perceptions of the intentions of the legislation. I can accept each accurately identifies and states his own perception of the aims of the legislation as introduced and passed. Those aims form part of the background—what used to be called the “mischief”—with which the Bill was designed to deal. Their own understandings of its actual effect are irrelevant. The Bill means what it says, not what it was and is thought to have said.
[70] Parliament, at least initially, appears to have considered Ngai Tahu held sole “ownership”, were the tangata whenua, and held (sole) rangatiratanga, notwithstanding previous and ongoing opposing claims by Te Tau Ihu iwi. Consistently, Parliament appears to have believed initially that sections 461 and 462 (clauses 447 and 448) of the Settlement Act Bill did pose a barrier to pursuit by Te Tau Ihu of claims based on interests as variously described within that Ngai Tahu takiwa.
[71] This initial belief seems clear from the Select Committee Report back to the House.
“Definition of claim—boundary issues
Three of the submissions concerned the 1990 Maori Appellate Court (the Court) decision which established the takiwa (boundaries) of Ngai Tahu. The Court’s decision forms the basis for the definition of Ngai Tahu’s takiwa in the Te Runanga o Ngai Tahu Act 1996 and the bill. Ngati Rarua, Ngati Apa and Rangitane o Wairau all reject the decision on the basis that the Court reached the wrong conclusion on the evidence, and that the process was irregular and unfair. Ngati Apa is currently seeking a High Court review of the Court’s decision.
All three submissions requested that clauses 447 and 448 be removed from the bill. Alternatively Ngati Rarua and Ngati Apa requested that clauses 447 and 448 be amended to include a savings provision which would allow a court of competent jurisdiction or the Waitangi Tribunal (the Tribunal) to make new and binding decisions on matters arising from these clauses. The requests are made on the basis that submitters believe they will be unjustly affected in any Tribunal hearing of their claims because the bill includes land and other interests that will be removed from the ambit of consideration of the courts and the Tribunal.
Ngati Apa requests that clause 8, which includes the definition of the ‘Ngai Tahu claim area’, should be excluded until Ngati Apa’s claims have been heard, namely areas of land which are the subject of their Tribunal claim.
The Maori Appellate Court’s findings on Ngai Tahu’s boundaries are now enshrined in section 5 of the Te Runanga o Ngai Tahu Act 1996 which defines the Ngai Tahu takiwa. This Act is binding on the Crown in negotiating the settlement with Te Runanga o Ngai Tahu. While there is no provision in the bill extinguishing any claims of non-Ngai Tahu claimants, the effect of the Maori Appellate Court’s decision is that the Tribunal is prevented from finding that other iwi have valid claims to mana whenua within the Ngai Tahu takiwa. There is, however, a hypothetical possibility that a non-Ngai Tahu claimant could establish a valid claim, other than one based on mana whenua, relating to the Ngai Tahu takiwa. We were advised that in this event there is nothing in the bill to prevent the Crown from providing redress, but that this redress would be very unlikely to involve land or resources within the Ngai Tahu takiwa.
We do not consider that any amendment is required to address the concerns raised by Ngati Rarua, Ngati Apa and Rangitane o Wairau.”
[72] I am constrained to say that on the face of Hansard matters then became confused. Some Members clearly treated clauses 447 and 448 in precisely those terms: a barrier to Te Tau Ihu iwi claims based on interests in land claimed within the Ngai Tahu takiwa so defined. A number of such Members vigorously protested that assumed situation. I refer as examples to the remarks in the Committee of the Whole of the Hon Jim Sutton 23 September 1998 12315, Hon Sandra Lee 12317 and 12327-8 (who proposed amendments), Hon Damien O’Connor (MP for West Coast Tasman) 12322, Hon Ken Shirley (who also proposed amendment to s 462) 12325. The Government position appeared to be different. The responsible Minister (Sir Douglas Graham) said nothing on the point. However, the Hon Tutukawa Wyllie, member for the relevant Maori electorate of Te Tai Tonga, who also had been a member of the Select Committee which sat and reported on the Bill in the above terms, stated a directly contrary view (Hansard 26 August 1998 p11677)
“One other block of concern that we felt warranted paying particular attention to, and that I want to speak on, is the issue of the Te Tau Ihu iwi. I am confident that this Bill does not impede their ability to bring a claim against the Crown, based on the Treaty of Waitangi or any other principle of law. While this is not the forum to debate the validity of any such claims, it is important to note that this Bill does not in any way deny these people the right to due process. That right is the right of citizenship.”
The amendments were voted down. The same differences emerged on Third Reading, 29 September 1998. The Hon Sandra Lee 12376 perceived the Bill as extinguishing inter alia Te Tau Ihu iwi’s rights to due process and access to law. The Hon Jim Sutton had come to consider that while claims could be taken to the Waitangi Tribunal they were destined to fail because the Tribunal was bound to accept the decision of the Maori Appellate Court, described as a “rotten legacy” (29 September 1998, 12383-4). The Hon Tutukawa Wyllie was once more of a quite different view (23 September 1998, 12327):
“Thirdly, in terms of the Te Tau Ihu issues—and the issue of boundaries will not go away—Ngati Apa’s claim is before the High Court. I understand that Ngai Tahu will be seeing Ngati Apa and others in the High Court, and it is their legal right to do so. I know, from the work that I have done on fisheries matters, and there are some issues that neither the court nor Parliament will ever be able to settle. They will be addressed in the future by negotiation, by discussion, between Ngati Apa and Ngai Tahu.
Some members may have failed to pick up that if Ngati Apa, Ngati Rarua, Rangitane, and whatever other tribes at the top of the South Island, have claims within the boundaries of Ngai Tahu, then they still have the right to have those claims heard before the Waitangi Tribunal, and the Waitangi Tribunal still has the power to provide redress. There then would be an obligation on the Crown to address any of those issues that may be raised by the Waitangi Tribunal. It is not as if Ngati Apa, or any other tribe from the top of the South Island, has been denied due process. They have cases before the High Court now. They can still take claims within Ngai Tahu boundaries to the Waitangi Tribunal.”
[73] Parliament appears to have started with one view, and ended with the reverse, or perhaps in a state of frozen uncertainty. I am not minded to regard the rejection of amendments expressly reserving the rights of Te Tau Ihu iwi as a reliable signal one way or the other. Those amendments could have been refused either because that was not the position which Parliament wished to preserve, or because Parliament regarded that as the position prevailing in any event. There may well have been a politically based unwillingness to adopt amendments of any sort whatsoever. The courts should exercise caution in endeavouring to divine true legislative intent from internal Parliamentary reports and debates. Judges are no better informed on the inner workings of Parliament than MPs are on the inner workings of the courts, and there is always a risk that a wrong weighting or significance may be given to limited and sometimes superficial indicia available. If anything, from the material before me Parliament appears to have leaned ultimately somewhat against any intention that the jurisdiction of the Waitangi Tribunal be ousted, but I do not regard that as a conclusion which can be reliably drawn. As so often is the case after examination of Hansard, it is better to turn to more traditional approaches.
[74] There is some modest support for the narrower approach to s 462 and with that s 6(9) TOW Act from common law presumptions against exclusion of jurisdiction, and favouring ability to be heard under the Bill of Rights. Particularly with those considerations in mind, it does not seem likely Parliament intended to shut Te Tau Ihu iwi out from the Tribunal simply because Te Tau Ihu iwi held different views from those held by Ngai Tahu as to historic rights in the border area when the outcome of Tribunal hearings could not affect Ngai Tahu in a material way. The Tribunal could only recommend. The Crown could not realistically expect to renegotiate or override by legislation obligations to Ngai Tahu whatever those recommendations said. Exclusion from the Tribunal is a serious step in view of Treaty obligations and the Tribunal’s functions. Subject to that pointer towards an intention to keep the Tribunal jurisdiction available, I do not see requirements to interpret statutory obligations in accordance with Treaty obligations much advance matters. The Crown owes Treaty obligations to both Ngai Tahu and Te Tau Ihu iwi.
[75] In the end, I read the legislation in accordance with the natural meaning of its words and in light of its evident purpose. That purpose was to effect final settlement between Ngai Tahu and the Crown—and no-one else. I consider on balance (leaving the Ngati Apa decision aside) that the Runanga Act, Settlement Act ss 461 and 462, and with that s 6(9) TOW Act, should not be interpreted as removing the jurisdiction of the Tribunal to hear Te Tau Ihu claims simply because they assert Te Tau Ihu iwi historic interests within the statutorily defined takiwa of Ngai Tahu.
[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.
The decision of the Court of Appeal in Ngati Apa Ki Te Waipounamu Trust v The Queen [2000] 2 NZLR 659
[79] The Ngati Apa decision requires some close analysis, judgment by judgment. There are dangers in extracting isolated passages from any particular judgment as representing the distilled view of the Judge concerned, and further dangers in treating any one judgment as definitive.
[80] The Ngati Apa proceeding as filed in the High Court sought judicial review of the Maori Appellate Court decision of 1990 made following reference under s 6A in course of the Ngai Tahu Tribunal claim. Ngati Apa alleged two grounds for review. They can be summarised as (a) unequal resourcing as between Ngai Tahu and others (b) failure to ensure Ngati Apa and others were given a reasonable opportunity to be heard. Ngati Apa’s judicial review proceeding sought (a) an order setting aside the Maori Appellate Court decision and (b) a declaration the Ngati Apa claim to the Waitangi Tribunal is valid, and that the Waitangi Tribunal has jurisdiction to hear and adjudicate upon it. As pleaded, I consider these are separate heads of relief independently sought.
[81] The Crown and Ngai Tahu sought to strike out the entire proceeding. The attack was based principally upon the Runanga and Settlement Acts. The application of course required judicial assumption that the facts alleged by Ngati Apa were correct: the question was whether in law such facts allowed Ngati Apa the rights and remedies sought. The High Court struck out the proceeding. The High Court regarded the Runanga and Settlement Acts as involving legislative assumptions that Ngai Tahu’s claims to the Ngai Tahu takiwa were exclusive and no other valid claims existed following the Maori Appellate Court decision.
[82] On appeal, the order striking out was reversed in part. The Court of Appeal did strike out prayer (a) which sought an order that the Maori Appellate Court order be “set aside”. In lieu of prayer (a), the Court of Appeal permitted amendment so as to claim a mere declaration that the Maori Appellate Court’s order was invalid. Prayer (b) seeking a declaration that the Ngati Apa claim to the Waitangi Tribunal was valid and that the Waitangi Tribunal had jurisdiction was allowed to stand.
[83] That outcome is of importance in its own right for present purposes, but so also is the way in which the various Judges arrived there. I content myself with a summary, avoiding any extensive quotation.
[84] The Chief Justice identified the question for decision as whether the Runanga and Settlement Acts prevented challenge by Ngati Apa to the Maori Appellate Court decision. The Chief Justice held that the Runanga Act did not. Section 5 of that Act defined the Ngai Tahu takiwa but did not exclude other tribal claims—to interests in land—within that takiwa. Likewise, the Settlement Act, including s 6(9) of the TOW Act, did not prevent challenge. The judgment is uncompromising: the Settlement Act “does not preclude a claim by Ngati Apa to the Waitangi Tribunal based on its interests in land, even if within the takiwa of Ngai Tahu” [paragraph 77]. The Chief Justice considered prayers (a) and (b) should not be struck out.
[85] The judgment of Keith J must be read as a whole, as it narrows in progress. Keith J opens with the view that the Runanga Act does not confer rights upon Ngai Tahu in the takiwa, having no significance beyond defining the takiwa. Keith J considers the Settlement Act does not give “direct general effect” to the Maori Appellate Court ruling conferring sole rights of ownership upon Ngai Tahu in the takiwa. The Runanga Act and Settlement Act “do not incorporate the notion of exclusivity over the whole of the area within the takiwa with the consequence that no claim by other tribes were still possible” [112]. However, and despite generalised reference to the Settlement Act, Keith J then narrows that view in light of s 461 and s 462 of the Settlement Act (the latter of which of course enacts s 6(9) TOW Act). His Honour was of the view ss 461 and 462 did not “comprehensively” prohibit Ngati Apa claims. The Tribunal could consider whether a claim made “can stand consistently with the Settlement Act”. Keith J declined to say whether claims made in the present Ngati Apa case could be presented consistently; but equally could not say Ngati Apa’s prayer (b) seeking a declaration its claim was valid and that the Waitangi Tribunal had jurisdiction could not possibly succeed. Perhaps significantly Keith J gives as a possible example of such a claim which might succeed a claim to mana as expressed in representations to and consultation by local authorities. Keith J concludes by observing that while the Runanga and Settlement Acts do not incorporate sole rights of ownership of Ngai Tahu in the takiwa, the boundary line enacted differs. Challenge to the boundary line was precluded by legislation. Keith J accepted that the Court had jurisdiction to allow the possibility of a declaration “in respect of part but not the whole of the 1990 decision and in respect of the validity of the Ngati Apa claim to the Tribunal”. I take that as referring to the proposed amended prayer (a) and prayer (b). The attempted setting aside of the “boundary determination” arising from the Maori Appellate Court decision and included in the Runanga Act and Settlement Acts however must fail.
[86] The joint judgment of Blanchard and Tipping JJ (delivered by the latter) must also be read as a whole. It, if anything, broadens somewhat as it proceeds.
[87] Their Honours start by noting certain points. Ngai Tahu had relied upon the Runanga and Settlement Acts, particularly the latter. The Settlement Act, in the incorporated Crown apology, recognised Ngai Tahu as the tangata whenua and as holding rangatiratanga within the takiwa of Ngai Tahu. The Settlement Act adopted the Runanga Act s 5 definition of “takiwa”. The Select Committee had declined to leave boundary questions open, treating s 5 of the Runanga Act as binding upon the Crown in that respect. Parliament had so proceeded. Ngai Tahu’s rights of first refusal were “inconsistent with Ngati Apa having any outstanding claim to the land” [149]. Topuni recognised in favour of Ngai Tahu in areas claimed by Ngati Apa were similarly inconsistent. Their Honours regarded ss 461 and 462 of the Settlement Act as reinforcing the finality of the settlement.
[88] Their Honours then ruled that “. . .the fact Parliament incorporated the Maori Appellate Court’s order as an integral part of the Settlement Act” precluded the High Court from setting the order aside [154]. To do so would undermine what was described as an “essential element of the Settlement Act”. However, the inability to set aside the order would not necessarily preclude the High Court from making a declaration to the effect the order was made in breach of natural justice, or some other procedural requirement. The latter would simply inform Parliament that a supposedly secure foundation for the Settlement Act was not in fact secure, leaving it to Parliament to determine any steps necessary in consequence. Substantive rights in terms of the order and its legislative adoption could not of course be altered except by further legislation, something which the Tribunal would have to take into account.
[89] Their Honours then observed [158] that the inability to set aside the order did not prevent Ngati Apa from alleging that “the making of the order and indeed the legislation based upon it” represented a breach of Treaty rights. Importantly, Their Honours continued (italics [emphasis] added):
“The present proceeding . . .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”.
[90] Blanchard and Tipping JJ considered Ngati Apa should have the opportunity of pursuing declaratory relief as to the procedural validity of the order, and the appeal should be allowed “to that extent”. I observe that phrasing, on its face, does not preserve prayer (b) from being struck out, but the formal orders of the Court expressed as the views of the majority pronounced by the Chief Justice [85] make it plain prayer (b) is preserved.
[91] Gault J’s judgment is to some extent a counterpoint to that of the Chief Justice. Gault J considered it was not open to the High Court to set aside the order because the land is described as part of the takiwa of Ngai Tahu in the Runanga Act, and the land concerned has been brought within the Settlement Act. His Honour lays emphasis upon paragraph 6.7 of the Crown apology incorporated in the latter which states Ngai Tahu are “the” tangata whenua and hold rangatira. Emphasis likewise was laid upon the rights of first refusal conferred upon Ngai Tahu. In Gault J’s view, the order for striking out the entire proceeding should stand.
[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 Treaty of Waitangi 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.
[95] Accordingly, both on my own approach in principle, and in line with the decision in Ngati Apa, I find against Ngai Tahu on the first, second and third causes of action as to jurisdiction.
[96] The fourth cause of action seeks to attack the Tribunal jurisdiction in a quite different way. After alleging the (undisputed) Tribunal obligation to act in accordance with natural justice it alleges two failings.
[97] The first is that the Tribunal has failed “to establish any or any proper procedure to deal with the jurisdiction issues raised by Ngai Tahu”. Specifically, the jurisdiction decision said the Tribunal would consider the jurisdiction question on an issue by issue basis as the inquiry progressed, and when the Tribunal had the full evidential background; but the procedure laid down in paragraph 19 of the Standing Decision does not include provision for such consideration.
[98] Second, the Tribunal has failed “to require Te Tau Ihu iwi to sufficiently particularise their claims”. Specifically, the procedure set out in paragraph 19 of the Standing Decision does not require Te Tau Ihu iwi to particularise their claims.
[99] These failures to establish proper procedures are said to be in breach of obligations to act in accordance with natural justice. The consequence, it is contended, is that “the jurisdiction decision is thereby flawed”. The relief sought in consequence is merely a declaration as to breach of natural justice, and orders requiring the Tribunal to establish proper procedures. Ngai Tahu propose, as sufficient, a procedure under which Te Tau Ihu iwi would file a fully particularised claim setting out the basis of rights said to have been breached by the Crown; Te Tau Ihu iwi would file briefs of evidence; there would be a preliminary hearing on matters of jurisdiction in light of the particularised claim and briefs; and to the extent if any the Tribunal determined it had jurisdiction to inquire into matters within the Ngai Tahu takiwa, Ngai Tahu “would have a right to be heard in an appropriate and timely manner”.
[100] I will deal with this cause of action as to jurisdiction in summary fashion. These are not complaints as to jurisdiction. They are complaints as to proposed (or unresolved) modes of inquiry: they go not to jurisdiction to hear, but to procedure at hearing. Ngai Tahu put this cause of action as going to Standing Decision matters also. That is its true relevance, and it will be so treated.
The Standing Decision 28 November 2000
[101] The standing decision (Directions of Presiding Officer 28 November 2000) reads as follows in its relevant parts:
“Background
1. The Tribunal’s direction of 3 November 2000 determined that the jurisdictional bars raised by Ngai Tahu did not oust the Tribunal’s jurisdiction to embark on its inquiry into the claims of Te Tau Ihu iwi. It determined that the jurisdictional issues could only be properly considered as the inquiry proceeds and the full evidential background was before it. It further determined that the Tribunal would report on these issues in its final report at the end of the inquiry process.
2. The Tribunal is now in a position to consider the procedure that should be adopted in the Northern South Island inquiry which best suits the needs of all parties and persons who wish to participate in this inquiry. It must be a procedure that is fair to all persons involved, that respects their views and positions and makes best use of the resources of the participants and the Tribunals. It must also be a procedure that adheres to the principles of natural justice and that provides the Tribunal with all the necessary relevant information and material to enable it to consider as fully as possible whether the claims of Te Tau Ihu Iwi against the Crown are well-founded.
3. With these considerations in mind, the Tribunal held a judicial conference on 20 November 2000 to deal specifically with the following:
(a) The rights of persons to be heard pursuant to section 4A of the Commissions of Inquiry Act 1908 including the status of Ngai Tahu and the rights of cross-examination in this inquiry;
(b) The Crown response to Ngati Rarua and the concept of conferencing throughout the course of the Northern South Island inquiry.
Right to be heard
4. Firstly, it should be recorded that on 20 November 2000 Ngai Tahu accepted that they do not have party status in this inquiry. They submit that they have interests in the inquiry apart from those of the general public and that they clearly come within section 4A(1) of the Commissions of Inquiry Act 1908 and that they want to be heard on all matters within the statutorily defined takiwa, including the right to cross-examine witnesses and lead evidence. They claim that their interests arise from Ngai Tahu’s status as tangata whenua of the area in which claims are likely to be brought to the Tribunal. This special status has been recognised by the Ngai Tahu Claims Settlement Act 1998, the Maori Appellate Court, Parliament and the Tribunal. Further, the Crown has apologised for its past failures to acknowledge Ngai Tahu rangatiratanga and mana over the South Island lands within its boundaries and has said that in fulfilment of its Treaty obligations, it recognises Ngai Tahu as tangata whenua of and as holding rangatiratanga within its statutorily defined takiwa.
5. The views of Te Tau Ihu iwi can be broadly divided as follows:
5.1 Ngati Rarua, Ngati Toa and Ngati Awa support the view that Ngai Tahu be granted a watching brief only, with no right to cross-examine or lead evidence. Ngai Tahu still need to establish that they have an interest in the claim above the general public or that they will be adversely affected, as per section 4A(1) and (2) of the Commissions of Inquiry Act.
5.2 Ngati Tama, Ngati Kuia and Te Atiawa support 2 alternative proposals. The first, which received support from other parties, was to ring fence all issues which are within the takiwa. These issues could be dealt at a later date. The second proposal was to hold conferences prior to each hearing after particularised statements of claims have been filed. The Tribunal would then determine whether any of the issues raised may affect the interests of Ngai Tahu, and if so, whether Ngai Tahu will be permitted to cross-examine and/or lead evidence. Ngai Tahu’s participation is at the Tribunal’s discretion.
5.3 Ngati Apa, Ngati Koata and Rangitane also put 2 options forward. Option one was to allow Ngai Tahu to adduce evidence and make submissions but to not allow any cross-examination. The second option is to allow Ngai Tahu the right to cross-examine but only if Ngai Tahu can demonstrate that the statement made by the witness will have an adverse impact on Ngai Tahu’s interests. Ngai Tahu are to give notice in advance that they intend to cross-examine. No cross-examination will be permitted if it relates to a matter settled by the Ngai Tahu Claims Settlement Act.
6. In making their submissions Ngai Tahu and Te Tau Ihu iwi recognised that the Waitangi Tribunal is a Commission of Inquiry pursuant to the Commissions of Inquiry Act 1908 and the Tribunal’s jurisdiction relating to persons entitled to be heard is contained in Section 4A which provides that:
S 4A Persons entitled to be heard—
(1) Any persons shall, if he is a party to the inquiry or satisfies the Commission that he has an interest in the inquiry apart from any interest in common with the public, be entitled to appear and be heard at the inquiry.
(2) Any person who satisfies the Commission that any evidence given before it may adversely affect his interest (sic) shall be given an opportunity during the inquiry to be heard in respect of the matter to which the evidence relates.
(3) Every person entitled, or given an opportunity, to be heard under this section may appear in person or by his counsel or agent.
7. These provisions place an onus upon Ngai Tahu to satisfy the Tribunal that it has an interest in the inquiry apart from one in common with the public and/or its interests may be adversely affected by evidence given and that it should be heard in respect of that evidence.
8. Ngai Tahu have stated that its interest in the inquiry would be “so obvious as to not be capable of serious argument.” And further “it would flow from the fact of its special status as tangata whenua of, and holding rangatiratanga over, the areas which would be likely to be brought before the Tribunal, such special status already having been recognised by the Maori Appellate Court, by Parliament and by the Tribunal itself.” (paragraphs 15 and 16 Ngai Tahu submission, dated 9 November 2000).
9. Ngai Tahu further particularised this interest on 20 November 2000 by stating in oral submissions that its interest would be in relation to the jurisdictional issues previously identified, to rights or benefits claimed within the statutorily defined Ngai Tahu takiwa and in respect to its aboriginal rights which predated the Treaty and which were not abrogated by the Ngai Tahu Claims Settlement Act 1998.
10. As Ngai Tahu is not a party to this inquiry it must satisfy criteria as set out in section 4A(1) and 4A(2) of the Commissions of Inquiry Act. To say that its interest is “so obvious” in areas that “are likely to be brought” before the Tribunal is insufficient. The further particularisation into broad interest areas of jurisdiction, rights or interests within the Ngai Tahu takiwa and aboriginal rights without specifying the nature and extent of the interest in relation to the particular breach claimed by Te Tau Ihu iwi against the Crown and how this affects Ngai Tahu is also insufficient.
11. Also, as was stated by Ngati Tama, each of Te Tau Ihu iwi have individual claims against the Crown. These claims have their own particulars and are alleging different breaches of the Treaty of Waitangi by the Crown in respect to their particular circumstances and historic background. For example, Ngati Koata and Ngati Rarua, the only 2 iwi who have now filed particularised statements of claim, demonstrate different breaches claimed in respect to different areas. Ngati Rarua claims extend into the Ngai Tahu statutorily defined takiwa. Ngai [sic - (Ngati)] Koatoa’s [Koata’s] do not.
12. It would therefore not be appropriate for the Tribunal to make a blanket ruling as to Ngai Tahu’s right to be heard. This matter should be considered on a claim by claim basis and also on an issue by issue basis as they are identified during the course of the hearing.
13. This view is consistent with the Tribunal’s stance on the jurisdiction issue and we have heard no compelling reasons to depart from this position.
14. Accordingly, we are of the view that when determining the right to hear Ngai Tahu that we should firstly hear the evidence of each of the Te Tau Ihu iwi claims. At the conclusion of each hearing, Ngai Tahu are to file with the Tribunal a particularised request setting out in sufficient detail the areas of their interest in the particular claim and/or how that interest has been adversely affected. When this has been done the Tribunal will be able to rule on whether Ngai Tahu should be heard and the extent to which it should be heard.
Factors to Consider
15. Ngai Tahu’s right to be heard may in our view include the right to make submissions, the right to cross-examination and the right to adduce evidence. The granting of these rights will depend first and foremost upon whether Ngai Tahu are able to satisfy the Tribunal as to the provisions of section 4A(1) and 4A(2) of the Commissions of Inquiry Act 1908.
16. The Tribunal in considering each request will bear in mind the principles of natural justice, including the opportunity to be heard and the right to controvert disputed facts put forward. It should also be recorded that there is a cost factor to be considered both in the use of human resources and also financial resources.
17. We should also comment on a matter raised by Ngati Kuia relating to the issue of cross-examination of kaumatua giving traditional evidence. It should be noted at the outset that the cross-examination of kaumatua giving traditional oral evidence does not sit easily with Maori custom. Kaumatua evidence is not usually challenged, nor kaumatua exposed to possible ridicule before members of their iwi. As was stated by the Tribunal in the Mohaka ki Ahuriri inquiry, kaumatua evidence is usually given to the Tribunal by kaumatua before their tipuna, their whanau, and their hapu. To interfere with this evidence may destroy the presentation or value of it. (Memorandum-Directions of the Tribunal dated 22 November 1996). We therefore put all Counsel on notice that as a Tribunal we do not generally permit the direct questioning of kaumatua evidence. This general rule is however subject to the position held by the person giving such evidence and the type of evidence given.
18. Finally, as has been accepted by all involved in this inquiry, the Tribunal has a discretion to set its own procedure in relation to the hearing of an inquiry. (In Re Royal Commissions to Inquire and Report upon the State Services in New Zealand [1962] NZLR 96 and Badger v Whangarei Commission of Inquiry [1985] 2 NZLR 668).
Conclusions and Directions
19. The procedure in this inquiry will provide for the following:
19.1 There will be no blanket ruling that will be appropriate for each of the Te Tau Ihu iwi claims. The factual and evidential background of each claim will be different and so too will Ngai Tahu’s involvement and desire to participate.
19.2 By their own admission, Ngai Tahu is not a party to this inquiry and their rights of participation in the inquiry will occur in the following manner:
(i) Ngai Tahu will be sent all papers, documentary evidence, submissions and directions relating to this inquiry.
(ii) Ngai Tahu will be permitted to maintain a watching brief at each of Te Tau Ihu iwi hearings and attend and participate in all judicial conferences called in respect of this inquiry.
(iii) Ngai Tahu will have no rights to cross-examine during the course of the claimant’s presentation of evidence or to make submissions during the course of claimant hearings.
(iv) Within 28 days of the completion of each Te Tau Ihu iwi hearing, Ngai Tahu are to particularise the matters upon which they wish to be heard, bearing in mind the provisions of section 4A(l) and 4A(2) of the Commissions of Inquiry Act 1908. This request to the Tribunal should include:
(a) The precise areas of interest and/or the adverse effect of the claim or evidence upon Ngai Tahu.
(b) The persons whom Ngai Tahu wish to cross-examine and the nature of the evidence to be cross-examined.
(c) The nature of the evidence Ngai Tahu wish to adduce.
(v) A copy of the request is to be sent to all claimants and the Crown and they will be given 28 days to respond.
(vi) The Tribunal will then consider the submissions and if appropriate grant leave for Ngai Tahu to be heard.
(vii) If leave is granted Ngai Tahu will be heard after all claimants have presented their evidence and before the Crown presents its evidence. As indicated above, this may involve the recalling of certain witnesses. If this is done we consider it would be less disruptive, less time-consuming and less costly than the ring fencing proposal put forward by a significant number of Te Tau Ihu iwi.
(viii) At this hearing, claimant counsel will be permitted the opportunity to re-examine any witnesses permitted to be recalled by Ngai Tahu and, subject to limitations imposed by the Tribunal, cross-examine any witnesses called by Ngai Tahu.
Claimant Hearings
20. Cross-examination between claimants in the Northern South Island inquiry is not as of right. Leave is to be sought at least 10 days prior to the hearing. This application for leave is to identify the person sought to cross-examine and the matters sought to be examined. The applications will be considered prior to the hearing.”
Standing : the Ngai Tahu case
[102] Ngai Tahu mount five causes of action in relation to so-called “standing”. In respect of some of those five a better term would be “procedure”.
[103] The fourth cause of action has been summarised already (paras 96-100 supra above). It complains that the standing decision paragraph 19 did not provide a procedure to determine jurisdiction issue by issue, and did not require particularisation.
[104] The fifth cause of action alleges error in law in the Tribunal’s decision paragraph 12 in which the Tribunal declined to make a “blanket” decision on Ngai Tahu rights to be heard and directed rights of hearing be determined on a case by case and issue by issue basis. In argument the reference to paragraph 12 is expanded by associated reference to paragraphs 10 and 14. Ngai Tahu allege rights to be heard under s 4A(1) and/or s 4A(2) Commissions of Inquiry Act 1908. Those rights are said to arise from Ngai Tahu’s recognised status as tangata whenua holding rangatiratanga “over the areas likely to be brought before the Tribunal”, from Aboriginal rights predating the Treaty, and from its interest in the integrity and durability of the Ngai Tahu settlement.
[105] As to s 4A, Ngai Tahu particularly cite Moxon v Casino Control Authority (unreported, HC Hamilton, 24 May 2000, M324/99, M325/99 Fisher J) on s 4A(1) Ngai Tahu’s special status is said to have been recognised by the Maori Appellate Court, Parliament on four legislative occasions, the Privy Council, the Tribunal in claim WAI27, and the Court of Appeal in Ngati Apa. On s 4A(2) Ngai Tahu cite the approach in O’Regan v Lousich [1995] 2 NZLR 620, 632 Tipping J. Any recommendations or findings of Te Tau Ihu iwi rights or interests in the Ngai Tahu takiwa derogates from the benefits of the settlement and is adverse to Ngai Tahu’s interests. Ngai Tahu argues it is not necessary to hear the evidence of Te Tau Ihu iwi claimants before determining Ngai Tahu’s role. The rights claimed by Te Tau Ihu iwi can be ascertained when particularised statements of claim are filed. If an iwi claims rights in the takiwa Ngai Tahu will have an interest greater than the general public. If not, Ngai Tahu would not seek to be heard, as occurred in the case of Ngati Koata.
[106] The Sixth cause of action is a different approach to the same grievance. It labels the Tribunal’s finding that Ngai Tahu had provided insufficient evidence to demonstrate it met s 4A criteria as being irrational in a Wednesbury sense. Ngai Tahu’s interests, developed as above, are put as such that no reasonable decision maker could have determined otherwise.
[107] The seventh cause of action goes to procedure to be adopted if indeed Ngai Tahu rights to be heard under s 4A are recognised. The standing decision paragraph 19 is put as a breach of natural justice. It does not afford a fair opportunity to be heard. (i) Ngai Tahu will not be heard on a claim until after all other Te Tau Ihu iwi claims have been heard, which could take three years or more, too long to be effective. For some witnesses, Ngai Tahu will be expected to cross-examine three years after the event (eg. Ngati Rarua). The risks of witnesses becoming unavailable for cross-examination, or undergoing “education” in a suborning sense meantime, the risk of untested reinforcement by accumulation claim by claim, and of Tribunal mindsets developing are said to preclude that course. It is not in accordance with standard practice of full participation during a hearing. Ngai Tahu complained of different treatment in relation to cross-examination from that allowed to other claimants (Standing Decision paragraph 20). Ngai Tahu point to relative advantages of ring fencing (to which it did not object) or its own proposals involving “timely and appropriate” participation.
[108] There is no eighth cause of action.
[109] The ninth cause of action attacks Standing Decision paragraph 19 procedure on the basis of Wednesbury unreasonableness. It is a variant on the seventh cause of action asserting breach of natural justice. In addition to matters raised under the seventh cause of action, paragraph 19 procedure is stigmatised as not one raised by claimants or by Ngai Tahu, and as more “disruptive time consuming and costly”. Ngai Tahu point to asserted needs for memoranda (nine) after each hearing, the need for nine Tribunal decisions, risks in recalling witnesses after long delays, risks of leaving evidence uncontroverted for long periods, risks of witness education, and increased potential for judicial review. Alternative proposals involving consideration of jurisdiction in advance are put as avoiding some or all hearings on matters in the Ngai Tahu takiwa.
[110] Across all causes of action the Ngai Tahu theme is that there should (“must”) be a judicial hearing soon, perhaps in the next financial year, on properly particularised claims. That, it is said, may be the end of the matter or reduce matters. It is put as “ludicrous” to wait until the end of all Te Tau Ihu claims before so determining.
Standing : The Tribunal’s Response
[111] I requested the Tribunal to arrange appearance and to provide assistance in a neutral fashion on practicalities involved in various hearing options. I acknowledge that assistance.
[112] An affidavit by the current Director of the Tribunal was supplemented by information requested and received through counsel separately recorded in a minute dated 23 March 2001.
[113] The Director’s affidavit speaks against “ring fencing” of claimant issues which involve the Ngai Tahu takiwa. It is said (paragraph 53) to be important each Te Tau Ihu iwi claimant be heard in a complete and uninterrupted manner, and put its evidence before the Tribunal without artificial severance. That, it is said, will enable parties and the Tribunal to gain a complete picture of each iwi’s circumstances. The ring fencing proposal would lead to a staggered process requiring all witnesses to be available for later hearings, with increased human and financial cost. The experience with the “ring fenced” Ngati Rarua hearing was disruption by objections by Ngai Tahu whenever reference was made to activity south of the Ngai Tahu takiwa line. The Tribunal’s standing decision procedures are regarded as decreasing the number of issues and people involved in later hearings, with less expense and greater efficiency.
[114] I developed concerns during the hearing over deferral of cross-examination and evidence by Ngai Tahu for some two or three years in some cases while all Te Tau Ihu iwi claims are heard. I requested information as to the practicalities of hearing Ngai Tahu on a progressive basis, with Ngai Tahu cross-examination (at least) being dealt with on one Te Tau Ihu iwi claim before the next is commenced. The Tribunal’s response (next day) through counsel, which I accept in that fashion, identified problems with that approach. I will return to those matters. At bottom, the basic problem is one of insufficient resources.
[115] I also received through counsel for Ngati Rarua a copy of “Tribunal directions re future hearing” dated 16 March 2001 written with a view to a Tribunal judicial conference on 16 April 2001. It appears certain unspecified “generic” issues affecting all Te Tau Ihu iwi may be heard first, before individual iwi claims. This, it is said, would avoid repetition and reduce inter-claimant cross-examination.
[116] The Tribunal advises that member availability and resourcing is insufficient to a point where claims on present planning will take two to three years to complete. The Tribunal hopes for two. There is insufficient funding at present to hear more than three claims in the financial year ending June 2001. If it were decided to hear Ngai Tahu on a progressive basis, after each claim and before the next, member availability and resources dictate that could only be done by reallocating the following claimant’s allotted time to use for Ngai Tahu purposes, putting the total processing of claimants’ claims correspondingly further back. Counsel did not dissent from the proposition that could double the present two to three year estimate.
[117] The Tribunal raised the possibility of cross-examination (where permitted) by written questions and answers between hearings.
Standing : The Crown
[118] The Crown observes, regally, that Standing Decision procedures “could be improved”, identifying particularisation concerns. However, it is submitted they are not so fundamentally flawed as to amount to error of law. The Crown cites the Wharekauri Rekohu approach, seeing “ring fencing” as impracticable. The Crown accepts Ngai Tahu “clearly has a right” to be heard in respect of claims asserted by Te Tau Ihu iwi within the Ngai Tahu takiwa. The issue is how to provide for that right in manner fair to both. If and to the extent the Tribunal has declined to grant a right to be heard the Crown accepts there is error of law; but it is “not . . .clear that is in fact what the Tribunal has directed”. The Tribunal “appears to have deferred the standing issue to be dealt with incrementally”. That does not necessarily give rise to error of law. The Crown did not take a position on the progressive hearing of claims. The Crown would regard written questions and answers as acceptable, but saw difficulties in implementation.
Standing : Other Parties
[119] Second Defendants Ngati Rarua supported the Tribunal decision. Ngati Rarua do not support ring fencing. Ngati Rarua do not support progressive hearing of Ngai Tahu, with overall hearing span extended. It opposed written questions and answers, fearing a distracting paper war.
[120] Ngati Rarua considered fairness to Te Tau Ihu iwi, if an imbalance exists, must prevail over fairness to Ngai Tahu, as Ngai Tahu are not a party. With that, there was concern that progressive hearing of Ngai Tahu would push out the timeline to hear all claimants. That should not be done for the convenience of Ngai Tahu ahead of Te Tau Ihu iwi claimants. The Court was reminded it was not a procedural appellate court, and in the absence of “overwhelming unfairness” or error of law the Tribunal was able to determine its own procedure.
[121] Sixth Defendant Ngati Apa “is content to adopt” the Tribunal’s decision. It did not support ring fencing. Ngati Apa were concerned at extension of time involved in progressive hearing of Ngai Tahu. Counsel reserved its position on written questions and answers, seeing practical difficulties. Ngati Apa submit it is not for this court to seek to improve upon procedures the Tribunal has directed conscious of limited time available and funding constraints. There is no denial of natural justice in that decision: Ngai Tahu were heard at length before it was made. The procedure the Tribunal has adopted is “one of several possibilities within the procedural range”: it is a matter of opinion whether it is best. It is submitted there is no authority that action may be taken against a merely prospective breach of natural justice as through delayed hearing. In any event, a delay of three or more years is still put as a “hearing”. Delays, it is said, cut both ways with hardship to claimants also.
[122] Ngati Apa submit there will be adequate particularisation before claims go to hearing. It is necessary to particularise and see briefs before the Tribunal can be satisfied s 4A(1) or (2) is met, and the Tribunal was right to wait and see. There was no irrationality.
[123] Third, Seventh, Eighth, and Tenth Defendants submit Ngai Tahu has not established a right to be heard in the Te Tau Ihu iwi claims. It has not demonstrated interest within s 4A Commissions of Inquiry Act. Ngai Tahu interests have been settled by the Ngai Tahu inquiry and its consequences. Ngai Tahu has no interest in the current inquiry. It has no interest greater than the general public. The case and issue approach taken by the Tribunal is appropriate. The Tribunal’s decision is not irrational. It was decided on a balancing of considerations, and gives opportunity to be heard. Delay will be prejudicial to both sides. Natural justice principles should favour the Te Tau Ihu iwi claimants, so that they are not unreasonably impeded by others (Ngai Tahu) who have already had their claims heard. Priorities should go to the claimants. No specific submissions were made as to ring fencing, progressive hearing of Ngai Tahu, or written questions and answers.
[124] Ninth Defendant Ngati Toa submit that Ngai Tahu has not established status under s 4A(1). Ngai Tahu are put as “one of the” tangata whenua, holding rangatiratanga over “some of the lands concerned. That, it is said, does not give an interest greater than the public generally. Ngai Tahu’s claim is settled. It no longer has an interest greater than the public’s. The Tribunal’s function is merely recommendatory. There can therefore be no adverse effects within s 4A(2).
[125] Ngai Toa submit the Tribunal’s decision fulfils requirements for natural justice. There is sufficient in the provision made for consideration of jurisdiction on a case by case and issue by issue basis. Clause 19.2(4) of the standing decision requires Ngai Tahu to particularise matters where it is alleged the Tribunal has no jurisdiction. A decision of 4 May 2000 (WAI785 page 2.117) directs particularisation at least two months before hearing, as does standard practice. As to natural justice, fairness required opportunity for Te Tau Ihu iwi to put claims forward without interference. Ngai Tahu are said to have had the benefit of an inquiry already. Parties already may not be heard for three years. Ngai Toa do not support ring fencing. Nor do Ngai Toa support progressive hearing which will stretch out the time for hearing Te Tau Ihu iwi claims, regarding which any delay is said to be particularly prejudicial to Ngai Tahu which is dealing with claims on many fronts.
Decision : Standing : Fifth and Sixth Causes of Action : A right to be heard
[126] I have no doubt Ngai Tahu are entitled to be heard under s 4A(1) on any Te Tau Ihu iwi claims which assert the existence of interests within the Ngai Tahu statutory takiwa, to the extent of those matters. It is not a question whether Ngai Tahu is the tangata whenua and holds the rangatiratanga. I do not need to determine that question, or an associated interesting question whether rangatiratanga must be sole or can be shared. It is a matter of tenable claims by Ngai Tahu to do so. If Ngai Tahu have a tenable claim to that status—and given the Maori Appellate Court decision, the Ngai Tahu report, and the settlement and legislation already reviewed it is hard to argue otherwise—then it has an interest in the inquiries (claims) apart from interests “in common with the public”. It has a special interest in maintaining its claim to that status against any conflicting claims mounted by others—here, Te Tau Ihu iwi.
[127] Arguably, but less clearly, Ngai Tahu has a right to appear and be heard under s 4A(2) in the same circumstances and to the same extent. In a strictly material sense claims before the Tribunal calling Ngai Tahu’s special status into question cannot adversely affect Ngai Tahu’s interests. Ngai Tahu has its settlement, whether on a correct or incorrect basis, in relation to interests now claimed by Te Tau Ihu iwi. Further findings or recommendations will not in themselves reopen that settlement. In a wider sense, however, evidence challenging the claimed special status can be viewed as damaging to the mana of Ngai Tahu. It tends to diminish Ngai Tahu’s standing and influence. I incline to this latter approach, but am conscious it does not sit easily with the views expressed by Blanchard and Tipping JJ in the Ngati Apa case as to the Tribunal’s powers being purely recommendatory. In light of s 4A(1) considerations, I leave the s 4A(2) question open.
[128] That right to appear and to be heard is in the first place provisional. All turns upon whether the particular Te Tau Ihu claim (or perhaps foreshadowed “generic” claim) does in fact assert a conflicting interest. If it does, the claimed tangata whenua and (sole) rangatiratanga considerations and corresponding s 4A(1) interests come into play. If it does not (as indeed was the case with Ngati Koata) then the opposite is the case. It is none of Ngai Tahu’s business. Counsel for Ngai Tahu, consistently, indicated that Ngai Tahu would not be interested in involvement.
[129] At this stage, with the exception of Ngati Rarua and Ngati Koata, it is not clear one way or the other whether individual claims will challenge that claimed special status. Such, however, appears likely. Te Tau Ihu iwi are noted by the Tribunal as not stating otherwise.
[130] The position should become a great deal clearer when statements of claim are particularised. That particularisation is required two months prior to hearing. That, on present proposals, could be up to two to three years away for some iwi. Even then, however, there will not be absolute certainty. In the way of most hearings in most jurisdictions, as evidence develops new matters can emerge with amendments to particulars correspondingly sought and allowed. Alternatively, existing particulars may be abandoned. The question of Ngai Tahu standing to appear and be heard will remain fluid, to a degree, to the end of a particular claim and any relevant generic claims. The Ngai Tahu perception that all that is necessary is the delivery of particularised statements of claim, and briefs, to that degree is unrealistic. There can be no absolute confidence that the position would remain frozen in such terms.
[131] This “provisional” tag is not significant in a practical sense. If there is a known challenge to Ngai Tahu’s special status at commencement of the hearing of a Te Tau Ihu iwi claim, Ngai Tahu’s rights follow. If there is not, but such a claim later emerges, Ngai Tahu’s rights arise correspondingly. Certainly, Ngai Tahu should be allowed at a minimum to be present on a strictly watching brief in case that latter eventuality arises, at which point the watching brief would mature to a more active role. The Tribunal has no difficulty with a watching brief as such.
[132] The Tribunal’s decision was not that Ngai Tahu did not have standing under s 4A. It was that the burden of so demonstrating rested on Ngai Tahu, the answer was not self evident, and the matter could not be dealt with appropriately on a blanket basis across all claims. Rather, it should be considered case by case and issue by issue, as with jurisdictional questions.
[133] Ngai Tahu’s rights to be heard do depend upon what is advanced in claims as filed and as heard. While I regard Ngai Tahu’s case rather more favourably than seemed appropriate to the Tribunal, inasmuch as if I start from a position that with the likely shape of claims Ngai Tahu has provisional rights as opposed to simply not having satisfied the Tribunal it has any rights, there is no error in law in the outcome upon which the Tribunal settled. Nor is its approach irrational. Ngai Tahu must wait and make out its case as matters develop.
[134] I find against Ngai Tahu on the fifth and sixth causes of action.
Decision : Standing : Fourth, Seventh and Ninth Causes of Action : Procedure
[135] I remind myself I am not a procedural appellate court. I must operate within the constraints of judicial review.
[136] I must also have due regard to the special character and special procedures of the Tribunal, along with its expert knowledge and experience, and the width of procedural powers granted to it under its Act and as a Commission of Inquiry. Its needs, and requirements for natural justice in relation to its procedures, are not necessarily the same as for courts or other more familiar bodies.
[137] I must also accept for present purposes the intensely regrettable fact that due to resource constraints, and the further reflection of such constraints in member availability, there is no capacity for expedited or additional hearings to better cater for Te Tau Ihu iwi needs and Ngai Tahu needs. I say that with resignation, not approval. It is a fact to be faced, like the weather.
[138] I do not regard the tribunal as having failed, as alleged in the fourth cause of action, to establish any proper procedure to deal with jurisdiction issues, or to require Te Tau Ihu iwi to particularise.
[139] The Tribunal directed that jurisdiction be dealt with claim by claim. That is perfectly clear. The Tribunal also directed that jurisdiction be dealt with issue by issue. The “issues” in a particular Te Tau Ihu iwi claim will be gathered when its claim is particularised shortly before hearing, subject always to possible later amendments. There may well be different issues arising on different iwi claims. Within a claim, some issues may involve factual matters involving asserted interests historical or otherwise within the statutory Ngai Tahu takiwa. Some may not. As is usual in such cases, there may well be grey areas. The Tribunal has made it clear that jurisdiction will be examined on that issue by issue basis. When issues are identified, any necessary further directions can be given and procedures determined. There is no failure on the Tribunal’s part to this point.
[140] In relation to the natural justice matters raised in the seventh cause of action I have greater concerns.
[141] Even with the allowances I have already noted, I am firmly of the view that the Tribunal’s proposal to divorce cross-examination by Ngai Tahu for a period which may run for some two or three years after a witness has given evidence in chief amounts to a denial of the Ngai Tahu right to be heard and accordingly is a breach of natural justice.
[142] I put to one side, of course, those special categories of witness such as some kaumatua, and perhaps some historical evidence, where the Tribunal’s practice is to not allow or is to discourage cross-examination. That is a constraint upon all, and Ngai Tahu can have no unique complaint. I have in mind those witnesses who are subject to cross-examination in the normal way under Tribunal practice.
[143] A right of cross-examination delayed as proposed is not a sufficiently useful right. It is insufficient from all perspectives, and the insufficiencies compound.
[144] The Tribunal is working from a cold transcript or at best a tape of the evidence in chief. Inflections, emphasis, body language and demeanour which can be so telling are largely gone. The witness has had both time to forget, and time to rethink and to be “educated”. Some witnesses may well struggle to recall further details of or the basis for statements made earlier. Other witnesses, with the luxury of time, may have worked out ways to cover or outflank unsatisfactory features of previous evidence. Liars, in particular, usually perform better with time to think. There will be time for witnesses to discuss matters with others, or vice versa, with coaching as to satisfactory responses. It is a fact of life that where people feel passionately about a topic, as here, all the well meaning directions in the world to a contrary affect will achieve little. There are then the obvious further risks that witnesses who have given evidence in chief will die or go abroad and out of reach. Less obviously there are dangers, real even with judges and very real with lay persons, that a fixed view may develop even unconsciously along the lines of evidence in chief already heard, and which seems on an untested basis reasonable, when testing by cross-examination does not take place for two or even three years. Even if that is not an actuality, the delay has the potential to create an appearance of its likelihood. That does nothing for party or public confidence in the process involved, or in the Tribunal.
[145] To a more limited extent, there may be similar problems for Ngai Tahu evidence in chief. In areas where cross-examination is not permitted, or in [sic] not likely to be effective, it may be important to match Te Tau Ihu iwi evidence in chief with Ngai Tahu evidence in chief while Tribunal memories are still relatively warm. In some cases, and I can see this would be so with more elderly kaumatua, it is important to have that evidence taken while the Ngai Tahu witness is still alive or in sufficiently good health to give it. Much evidence in chief of course, and particularly evidence based on documents, can wait; but that may not be true of all.
[146] I do not accept there is any legal barrier to this Court making a declaration that a proposed course of conduct would be contrary to natural justice. This is not a mere hypothetical course of conduct: it has been decided, and it will occur unless restrained. There is no reason in principle why futurity must preclude relief. It was submitted there was no precedent for such a declaration. If I am to be a pioneer, then so be it.
[147] I do not accept Ngai Tahu should be prioritised out of its entitlement to a fair hearing on a basis that Te Tau Ihu claims are not Ngai Tahu claims, and Ngai Tahu therefore is somehow secondary. Ngai Tahu’s claimed interests are under attack. That is not to be brushed aside or regarded as of lesser importance. When Te Tau Ihu iwi attack, Ngai Tahu is entitled to a reasonably equal opportunity to defend. It is not to the point that it has already had its own claim dealt with. This is a new threat.
[148] I have every sympathy for the Tribunal faced as it is with the invidious task of allocating insufficient time and resources between competing interests. This proposal to defer Ngai Tahu cross-examination, and all of Ngai Tahu’s other evidence, is not, however, the way. In practical terms, it denies adequate opportunity to be heard. Expedition is important. Basic fairness is more so. This Court can and should intervene.
[149] While I consider there has been a breach of natural justice within the seventh cause of action, I do not go so far as to stigmatise the decision as irrational within the ninth cause of action. That raises different considerations and they have not been met.
[150] Before turning to the repercussions of this conclusion, I deal further with the topic of particularisation, the subject of complaint in the fourth cause of action and which has ramifications for those which follow.
[151] The Tribunal has not failed to direct particularisation. There is a standing direction for particularisation two months before hearing of individual claims. That fits with usual practice.
[152] The Tribunal has not directed all Te Tau Ihu iwi to do so at this present and unusually early stage. There is nothing improper in that. While it would be useful, dependent upon the degree of particularity, to Ngai Tahu in assessing and preparing its jurisdictional challenges, it potentially is unfair to Te Tau Ihu iwi whose claims are still under research and will not be heard for a considerable period. Ngai Tahu’s interests in this regard should not drive Te Tau Ihu iwi into premature particularity, a position likely in the end to result in late amendments, confusion, and acrimony.
[153] There is no basis on which the Court could say the Tribunal has exceeded jurisdiction, erred in law or acted irrationally in the stance which it has taken. Particulars will come in the future, as hearings near. Ngai Tahu must wait in normal fashion.
[154] I return to the repercussions of my findings as to breach of natural justice through deferral of Ngai Tahu cross-examination.
[155] The consequences so far as hearing organisation are concerned are for the Tribunal to work through. I have not enlarged the ability, in itself, of Ngai Tahu to cross-examine. The Tribunal is not inhibited from applying standard practices, such as requiring advance notice and imposing leave requirements. The area which cannot stand is the degree of deferral proposed. It must be reduced to proportions which are reasonable given forensic needs and earlier time available.
[156] If, as the Tribunal has stated, the finding of time for Ngai Tahu to play a role can only be at the expense of time allocated (or which otherwise would be allocated) for later Te Tau Ihu iwi claims, then that is what will occur. It is highly regrettable, and if the Tribunal was adequately resourced it would not occur, but at least the hardship will fall more or less evenly upon both Te Tau Ihu iwi and upon Ngai Tahu. Each carries the disadvantages arising from delay such as problems with witnesses, uncertainty, and ongoing expense. I do not diminish those difficulties, but it is better that each separate Te Tau Ihu claim (or possibly “generic” claim) proceed fairly, with any Ngai Tahu cross-examination (and perhaps in some cases evidence) within a reasonable time, than that such proceed more rapidly but unfairly. If the price of fairness is further delay, even substantial further delay, that price must be paid.
[157] I do not see the possibility of written questions and answers as a useful general solution. It is, of course, a matter for the Tribunal, and it could have its uses perhaps in some areas, but it is an ineffective way of testing credibility and reliability, and a clumsy and protracted way of obtaining information. Experience with interrogatories within courtroom processes does not inspire confidence. It is not a panacea for Ngai Tahu’s natural justice problems, and concerns over further delays. [sic (unfinished?)]
[158] In the result, I find against Ngai Tahu on the fourth and ninth causes of action. There should, however, be a declaration in line with relief sought in the seventh cause of action to the effect that deferral of Ngai Tahu cross-examination until after all Te Tau Ihu iwi claimants have presented their evidence is in breach of natural justice.
[159] There is no need for mandamus. I have no doubt the Tribunal, conscious of the need to comply with natural justice, will endeavour to establish a complying procedure.
A Comment
[160] The whole unhappy difficulty over this so-called “standing” aspect—really, a matter of procedure—arises from the inadequacy of the Tribunal’s resources. Quite simply, the Tribunal needs sufficient personnel, and sufficient funding, to provide hearing time within an acceptable and just timeframe. Let no-one think this Court has solved problems with this decision. It has not. It has organised within the problem, but the only solution involves substantially increased delays which will cause deep concern.
[161] The Waitangi Tribunal was set up as an avenue for exploration of complaints of breach of the Treaty, and recommendations for remedial action where such breaches were found to have occurred. Systemic delays on the present scale prevent proper discharge of that function. The solutions lie with Government and ultimately with Parliament. They are political matters. There are also Treaty dimensions. The Treaty does not envisage a Treasury with a bottomless purse, and it is for the Crown to decide upon allocation of resources given competing needs. In that light I exercise restraint. It is not for this Court to say more resources must be allocated, above other needs, but there should be no mistake. This case illustrates the Tribunal is not being resourced to operate, and is not able to operate, in a satisfactory manner. I draw that to the attention of those who carry the responsibility.
Judgment
[162] (1) Plaintiff will have judgment under the seventh cause of action for a declaration that directions in the First Defendant’s decision dated 28 November 2000 contained in paragraph 19.2(vii) that Ngai Tahu will be heard after all claimants have presented their evidence deny Plaintiff adequate right to be heard and are thus in breach of natural justice.
(2) Plaintiff’s claims are otherwise dismissed.
(3) Costs are reserved.
MINUTE OF STATEMENT BY COUNSEL FOR WAITANGI TRIBUNAL 21 MARCH 2001
The following represents my note of information given to the Court following my request the previous day.
[1] The Tribunal believes it not to be possible for reasons of availability of members and of cost to address Ngai Tahu issues emerging from one hearing prior to the next hearing.
[2] The availability and cost matters are that five members in the Tribunal hearing have extensive other commitments on other Tribunal claims and in other areas. It would therefore be very difficult if not impossible to assemble the Tribunal for special hearings to address Ngai Tahu hearings (quite apart from counsel and others’ commitments).
[3] The costs to the Tribunal for arranging a week’s hearing are approximately $30-40,000. The Tribunal is already over budget for the current year (June financial year) and has had to cut back on hearings. So, on the premise of no additional funding, hearings could be only at the expense of other claims awaiting hearing.
[4] The suggested addressing of Ngai Tahu issues from one hearing at the next hearing is not possible. It would be a serious breach of marae protocol to commence hearing at one claimant’s marae by hearing part of another claimant’s claim. Apart from that, the full week is required to hear the case of the claimant for that week.
[5] Accordingly, the belief of the Tribunal is that the only way of implementing a procedure interposing Ngai Tahu between hearings would be to substitute Ngai Tahu for the next scheduled hearing at which another claimant was to present its case. This would progressively delay more and more the hearing of claimants who already have waited a considerable time in order to give priority to Ngai Tahu who are not a claimant and the Tribunal does not consider that would be appropriate. It could double the present projection of 2-3 years. (2 years is hoped for).
[6] There are two further points. (1) While a long delay in cross-examination obviously is undesirable there are, it is understood, a number of boundary issues between claimants some of whom will necessarily have to wait a considerable time to cross-examine other claimants on those boundary issues, and are thus in a similar position to Ngai Tahu. (2) The Tribunal would be prepared to accommodate Ngai Tahu’s concern over delays before questioning witnesses (where permitted) by allowing questions of such witnesses to be asked and answered in writing which could be received prior to the next hearing of another claimant.
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