The Queen v Ngati Apa Ki Te Waipounamu Trust

IN THE COURT OF APPEAL OF NEW ZEALAND

CA154/99

BETWEEN	NGATI APA KI TE WAIPOUNAMU TRUST
Appellant

AND	HER MAJESTY THE QUEEN OF NEW ZEALAND
First Respondent

AND	THE MAORI APPELLATE COURT OF NEW ZEALAND
Second Respondent

AND	TE RUNANGA O NGAI TAHU
Third Respondent

Hearing:	4 November 1999
Coram:	Elias CJ Gault J Keith J Blanchard J Tipping J
Appearances:	D L Mathieson QC and J Page for Appellant E D France and B E R Gordon for First Respondent J O Upton QC and F M Tweedie for Third Respondent
Judgment:	8 May 2000

JUDGMENTS OF THE COURT

ELIAS CJ

This case concerns an important Act of the New Zealand Legislature, the Ngai Tahu Claims Settlement Act 1998 (“the Settlement Act”). By it, the Crown acknowledged and settled wrongs done in its name to the people of Ngai Tahu and made a fresh start. The question raised by the appeal is whether, in the Act which settles the Ngai Tahu Treaty claims, Parliament has deprived the people of Ngati Apa who live on the West Coast of the South Island of the status to raise their own claim.

Background

The appellant seeks judicial review of a decision of the Maori Appellate Court dated 12 November 1990. The decision of the Maori Appellate Court was given on a reference to it by the Waitangi Tribunal in the course of the Ngai Tahu claim to the Tribunal. By it, the Appellate Court determined that in 1860 Ngai Tahu had sole ownership according to customary law principles of “take” and occupation or use of the land on the West Coast of the South Island sold to the Crown in the Arahura and Kaikoura Purchases (decision of the Maori Appellate Court In re a claim to the Waitangi Tribunal by Henare Rakiihia Tau and the Ngai Tahu Trust Board, Case Stated 1/89, 12 November 1990).
By the Arahura Purchase the Crown acquired approximately seven million acres of land on the West Coast of the South Island, stretching from Kahurangi Point in the north to Jackson’s Bay in the south. One of the Maori signatories to the deed of purchase was Puaha te Rangi of Ngati Apa, who subsequently received payment for Ngati Apa from the Crown. The money received by Ngati Apa was part only of the overall payment, most of which went to Ngai Tahu.
Ngati Apa have brought a claim to the Waitangi Tribunal in respect of a relatively small part of this land, from the Kawatiri (Buller) River to Kahurangi. They do not claim exclusive interest in the land. Nor do they dispute Ngai Tahu’s exclusive interests south of Kawatiri (the site of Westport). But they say that the Appellate Court decision was wrong to exclude them from any interest in the area between Kawatiri and Kahurangi. The Ngati Apa claim also extends to the inland Kawatiri catchment area, part of which was included in the Kaikoura purchase.
The appellant Trust was not a party to the hearing in the Maori Appellate Court. It contends that Ngati Apa was not represented in the Maori Appellate Court hearing and that the Court did not have evidence of Ngati Apa’s take in respect of the land. The evidence available is said to include Ngai Tahu acknowledgments of Ngati Apa’s interest at the time of the Purchases and determinations of the Maori Land Court and the Maori Appellate Court awarding Ngati Apa interests in reserves withheld from the Arahura Purchase for the benefit of the sellers.
The Maori Appellate Court decision was made upon a reference under s6A of the Treaty of Waitangi Act 1975 by the Waitangi Tribunal in the Ngai Tahu claim when it became clear that there were overlapping claims by other tribes. In particular, Rangitane Ki Wairau, Ngati Toa and Te Atiawa claimed interests arising out of their own sales to the Crown and by virtue of conquests of the West Coast in the 1830s by Niho and Takerei of Ngati Rarua and Ngati Tama. The case stated to the Maori Appellate Court by the Waitangi Tribunal in respect of the Arahura Purchase of 1860 and the Kaikoura Purchase of 1859 was:

1. Which Maori tribe or tribes according to customary law principle of “take” and occupation or use, had right of ownership in respect of all or any portion of the land contained in those deeds at the dates of those deeds;
2. If more than one tribe held ownership rights, what area of land was subject to those rights and what were the tribal boundaries.

Ngati Apa of the West Coast were not represented in the Maori Appellate Court hearing. Some Ngati Apa of the Marlborough and Nelson districts were said to be included in a grouping of tribal interests in that area under Te Runanganui O Te Ihu o te Waka a Maui Incorporated, a body which appeared in the Maori Appellate Court. Issues of representation arose. The appellant says that Te Runanganui did not obtain any mandate from Ngati Apa to represent it, as the Appellate Court had required.
It is clear from the decision of the Maori Appellate Court that the main focus of the hearing was the question whether the tribes which invaded the West Coast in the 1830s (Ngati Rarua, Ngati Tama and Te Atiawa) had established rights according to Maori custom which displaced Ngai Tahu’s ownership rights. That focus is acknowledged in the Maori Appellate Court description of the claimants:
The claimants are Ngai Tahu, Ngati Toa, Ngati Rarua, Ngati Tama, Te Atiawa and to a certain extent, Ngati Apa.
The Appellate Court referred to Ngai Tahu’s evidence that “they were the Iwi that had title to the lands comprised in the Arahura Deed prior to the arrival of Ngati Tama and Ngati Rarua”. The sole references to Ngati Apa in the reasons of the Maori Appellate Court is in relation to “evidence presented by or on behalf of Rangitane”:
In the evidence presented by or on behalf of Rangitane, much has been made of the fact that Puaha Te Rangi is included in the West Coast Reserves, this was met by Ngai Tahu claiming Puaha as being also of Ngai Tahu.
Mr Sadd in his evidence acknowledged that Matanihoniho (a sister/cousin) of Puaha is also of Ngai Tahu as well. She is entered in Ngai Tahu’s records as theirs. Mr Tipene O’Regan of Ngai Tahu had no problem in accepting Puaha as Ngai Tahu.
Ngai Tahu also explained why persons of Ngati Apa descent were living in Tai Poutini post-1840 – they put it simply, these people were allowed to settle by Ngai Tahu.
……
We accept that Ngati Apa and possibly other Northern tribe remnants were in occupation of land along the Kawatiri and such occupation must have, as Mason [a witness for Ngai Tahu] suggests, been allowed by Tuhuru [chief of Ngai Tahu]. However in the evidence before us, nowhere have we found a customary take to support something more than a right of residence.
The appellants contend that Puaha Te Rangi did not derive his entitlement as Ngai Tahu but as Ngati Apa. They say that Ngati Apa did not maintain its settlements at Kawatiri by leave of Tuhuru, but in their own right. They maintain that the actions of the Crown, the acknowledgements of Ngai Tahu and the historical records not presented to the Maori Appellate Court, establish their take to the land.
Mr Sadd, who apparently made the submission and presented the evidence of Puaha Te Rangi’s inclusion in the West Coast Reserves as Ngati Apa, was representing Rangitane Te Wairau. That was a separate representation of Rangitane from the overlapping representation undertaken by Te Runanganui O Te Ihu o te Waka a Maui Incorporated.
The formal decision of the Maori Appellate Court on the case stated by the Waitangi Tribunal was:
The Ngai Tahu tribe according to customary law principles of “take” and occupation or use had the sole rights of ownership in respect of the lands comprised in both the Arahura and Kaikoura Deeds of Purchase at the respective dates of those Deeds.

Because of the answer given to the first question, it was unnecessary for the Maori Appellate Court to consider the second.

Te Runanganui subsequently filed proceedings by way of judicial review of the decision of the Maori Appellate Court. Those proceedings were discontinued in November 1991. It also petitioned the Privy Council for special leave to appeal, but in July 1991 that petition was refused.
Rangitane also applied for judicial review of the decision. That application was dismissed by Greig J in Sadd & Te Runanga Rangitane Ki Wairau Incorporated v. Waitangi Tribunal and Others (unreported, judgment delivered 13 May 1994, High Court, Wellington CP.322/93, Greig J).
The appellant says that the November 1990 decision of the Maori Appellate Court was made in breach of natural justice. For the purpose of the strike out application, it must be accepted that the claimed breach of natural justice will be substantiated. Ngati Apa fears that the decision will preclude their own claims in respect of the Kawatiri lands if the Waitangi Tribunal is bound by the determination of the Maori Appellate Court. The Trust seeks review of the Maori Appellate Court decision to ensure that its claim in respect of the Kawatiri lands can be heard. The substantive relief it seeks is:
[a]An order setting aside the Maori Appellate Court’s decision of 15 November 1990; and
[b] 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.
As the argument in this Court developed, it seems that the principal concern of Ngati Apa could be met by a declaration that the Waitangi Tribunal, in considering the Ngati Apa claim, is not bound by the Maori Appellate Court decision. If so, the present claim for relief may not be appropriate. But for the purpose of the appeal, it is not to be assumed that the claim, if reinstated, will not be amended.
The decision of the Maori Appellate Court was binding upon the Waitangi Tribunal in the Ngai Tahu claim. It was made upon a reference under s6A of the Treaty of Waitangi Act 1975 for the purposes of that claim.
The Waitangi Tribunal reported on the Ngai Tahu land claims in 1991. It found the claims proved. They were largely based on breaches of the Treaty in the acquisition by the Crown of vast tracts of the South Island, including the Arahura and Kaikoura Purchases.
Following the Waitangi Tribunal report, Ngai Tahu and the Crown entered into settlement discussions. During the course of them Parliament passed a Private Act, Te Runanga O Ngai Tahu Act 1996 to constitute the Runanga as the representative of all Ngai Tahu for the purposes of settlement of the Ngai Tahu claims. The Act was passed by Parliament in adoption of a recommendation of the Waitangi Tribunal in a supplementary report dated 6 September 1991 that legislation be introduced to constitute a Ngai Tahu authority to conduct and conclude negotiations with the Crown on the Ngai Tahu claim. The Act identified the takiwa (district or region) of Ngai Tahu on the basis of the determination of the Maori Appellate Court.
Settlement discussions continued between the Runanga and the Crown. Eventually, a settlement of the land claims of Ngai Tahu was concluded by deed of settlement executed on 21 November 1997. The Settlement Act was enacted to give effect to the settlement reached.
The present proceedings seeking judicial review of the Maori Appellate Court decision on the grounds of breach of natural justice were struck out in the High Court on the application of Ngai Tahu and the Crown. Ellis J, in a judgment delivered on 24 June 1999, accepted the submissions of Ngati Apa that Te Runanga o Nga Tahu Act 1996 and the Settlement Act did not explicitly exclude the claims of other tribes within the takiwa of Ngai Tahu. But he held that the two Acts were based on an understanding by Parliament that Ngai Tahu’s claims over the takiwa were exclusive “and valid claims by other tribes were non-existent following the Maori Appellate Court decision”.
From that judgment the present appeal is brought. The matter for decision is whether Te Runanga O Ngai Tahu Act 1996 and the Settlement Act prevent any challenge by Ngati Apa by way of judicial review to the Maori Appellate Court decision. The Court is not called upon to express any view on the merits of the claim for judicial review. Nor is it necessary to express any opinion upon whether, if the statutes are no impediment, the Waitangi Tribunal is bound in its consideration of the Ngati Apa claim by the determination of the Maori Appellate Court (a proposition which seems to me to be doubtful but upon which we heard no argument). If the decision in the High Court is correct, it is not for this Court on the present appeal to speculate what claims to the Waitangi Tribunal by Ngati Apa may survive, even if the claims which rely upon entitlement to lands within the recognised takiwa of Ngai Tahu are barred by the statute. The nature and extent of any surviving claims depends upon the Treaty promises. By s5(2) of the Treaty of Waitangi Act 1975 the Waitangi Tribunal has exclusive authority to determine the meaning and effect of the Treaty for the purposes of any claim.
Ngai Tahu claims that the present proceeding is vexatious and an abuse of process, not only because of the statutory impediments provided by the Te Runanga O Ngai Tahu Act 1996 and the Settlement Act, but because the proceeding attempts to re-litigate matters determined by the High Court. It also submits that the proceedings are stale and no longer relevant.
As to the first point, I agree with the conclusion of Ellis J in the decision appealed from that the litigation conducted by Mr Sadd on behalf of Rangitane Ki Wairau was not litigation to which Ngati Apa was a party or to which it was privy. The Rangitane litigation was based upon that tribe’s distinct claim of entitlement. While Rangitane was part of the grouping represented by Te Runanganui, it was also separately represented by Mr Sadd as a party in its own right. It is that party which brought the litigation determined by Greig J.
As to the continued relevance of the proceedings, it is significant that Ellis J considered that “all of Ngati Apa’s claims are made in right of ownership”. It is not clear to me that is the case: the Waitangi Tribunal claim itself relies on “occupation” and “use”. But any claim based on “ownership” or claiming Ngati Apa mana in respect of the lands, faces the obstacle of the findings by the Maori Appellate Court that Ngai Tahu had exclusive ownership and that Ngati Apa occupied the lands at Ngai Tahu’s sufferance. Since, as Mr Mathieson made clear, Ngati Apa seeks from the Tribunal and from the Crown recognition of its mana in relation to lands between Kawatiri and Kahurangi (although not on an exclusive basis), the determination, if binding, operates as a determination of the status of the tribe which is not moot or “stale and no longer relevant” and which may affect Ngati Apa not only in its Waitangi Tribunal claim, but more generally in its standing in matters of interest to it on the West Coast.
The issue for determination on the appeal is whether Ellis J was correct to strike out the proceedings for judicial review on the basis that they are precluded by the Ngai Tahu legislation.

The Legislation

Te Runanga O Ngai Tahu Act 1996

Te Runanga O Ngai Tahu Act 1996 was a Private Act which followed a supplementary report of the Waitangi Tribunal in the Wai 27 claim relating to Ngai Tahu’s legal personality. In the course of its main report, the Waitangi Tribunal had identified a need to set in place appropriate tribal structures to receive and administer any assets passed to the tribe by way of reparation by the Crown. Following tribal discussions, Ngai Tahu presented to the Tribunal proposals for setting up such a body. The Waitangi Tribunal in its supplementary report of 6 September 1991, informed the Minister of Maori Affairs that it supported the Ngai Tahu proposals:
…for the constitution of a legal personality not only capable of binding Ngai Tahu in an enduring and final agreement with the Crown, but also of providing an effective economic structure capable of developing and sustaining the tribe’s Rangitiratanga over its lands and other assets:
Ngai Tahu propose that any formal contract or agreement with the Crown as Ngai Tahu’s Treaty partner or any contract binding Ngai Tahu as a whole is to be made with the proposed Ngai Tahu Iwi Authority which will be created by statute, comprising both the Runanganui [an incorporated society “Te Runanganui O Tahu”] and the Trust Board [Ngai Tahu Maori Trust Board]. Both bodies sitting together or separately must agree to the terms of any agreement or contract in the manner in which it will be concluded.
The claimant Trust Board now asks that legislation be passed to constitute the Ngai Tahu Iwi Authority as the corporate entity which has the capacity to bind Ngai Tahu in any settlement with the Crown.
The Tribunal recommended that, as a matter of urgency and importance, the Minister of Maori Affairs should introduce legislation to constitute the Authority “to conduct and conclude negotiations with the Crown on the Ngai Tahu claim resolution”.
As a result of this recommendation, the Minister of Maori Affairs introduced the Te Runanga O Ngai Tahu Act 1996. It came into effect on 24 April 1996 and as its long title makes clear, is
An Act to provide for –
(a)The incorporation of Te Runanga O Ngai Tahu for the benefit of members of Ngai Tahu Whanui; and
(b)The recognition of Te Runanga O Ngai Tahu as the representative of Ngai Tahu Whanui; and
(c)The dissolution of the Ngai Tahu Maori Trust Board; and
(d)The dissolution of Te Runanganui O Tahu Incorporated.
The preamble records Ngai Tahu’s wish to establish “an enduring tribal structure” to manage its assets and its business and to distribute benefits to the Papatipu Runanga and the individuals comprising the tribal membership of Ngai Tahu. It records that the objects of the Act could not be attained otherwise than by legislation. The Act defines Ngai Tahu Whanui as the collective of those individuals descended from the primary hapu of Ngai Tahu and Ngai Mamoe.
The 1996 Act by s3, binds the Crown. By s4, it is to be interpreted “in a manner consistent with the principles of the Treaty of Waitangi”.
Section 15 of the 1996 Act provides that Te Runanga O Ngai Tahu “shall be recognised for all purposes as the representative of Ngai Tahu Whanui”. Section 15(2) provides that, where any enactment requires consultation with an iwi or an iwi authority, “that consultation shall, with respect to matters affecting Ngai Tahu Whanui, be held with Te Runanga O Ngai Tahu”. Provision is made under the 1996 Act for declarations by Order in Council as to the Papatipu Runanga which constitute Ngai Tahu Whanui and their respective takiwa.
Section 5 provides for the overall takiwa of Ngai Tahu Whanui identified as “all the area of Te Waipounamu south of the northern most 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, Vol.3 p1122)”.
“Takiwa” is not defined in the 1996 Act. It translates as “district” or “region”. The use of that word in preference to “rohe” seems to arise because of the way Ngai Tahu lived, travelling to far-flung parts of their tribal area to gather food and other resources on a seasonal basis, rather than maintaining permanent settlements throughout the area. Thus the Maori Appellate Court’s decision (at p.1132 of the report of the Waitangi Tribunal) contrasted Te Rauparaha’s cultivations and trading activities with the Europeans with “the more nomadic lifestyle of other tribes whose territory may better be described as takiwa rather than rohe”.
The 1996 Act adopts as the Takiwa of Ngai Tahu Whanui, that area identified by the Maori Appellate Court as lands which Ngai Tahu owned according to Maori custom. It is submitted on behalf of Ngai Tahu that by s5 of the Te Runanga O Ngai Tahu Act 1996, the legislature has enacted that the area described, which includes the portion of the Arahura Purchase in which Ngati Apa claims interest, excludes any other tribal claim.

That is not the effect of the statute. It is concerned with matters of internal organisation of Ngai Tahu. Te Runanga O Ngai Tahu is constituted as the sole representative of Ngai Tahu Whanui. The Act does not refer to other tribes at all. The fact that the Act is a Private Act also suggests that it was intended to have effect only for the purposes of Ngai Tahu. The Act provides a mechanism for specification of the takiwa of Ngai Tahu’s constituent Papatipu Runanga. Section 15 authorises Te Runanga O Ngai Tahu to act as the representative of Ngai Tahu Whanui wherever any enactment requires consultation with any iwi and for all other purposes. Some geographical identification of the area within which the takiwa of each Papatipu Runanga might be declared or within which Ngai Tahu whanui might be affected, was therefore necessary. The identification of takiwa contained in s5 addresses that need.
Mr Upton for Ngai Tahu in the present appeal accepted that, “theoretically”, two tribes might hold rangatiratanga within the same district. The case stated to the Maori Appellate Court by the Waitangi Tribunal, although posed in terms of “ownership”, assumes the same possibility. It asked, in respect of the Arahura Deed of Purchase:
Which Maori tribe or tribes……have rights of ownership in respect of all or any portion of the land contained in those respective Deeds at the dates of those Deeds

The second question posed was:

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

I consider that the statutory recognition of the takiwa of Ngai Tahu was for the purposes of the Te Runanga O Ngai Tahu Act 1996 only. It prevents anyone representing Ngai Tahu within its takiwa other than Te Runanga O Ngai Tahu, but it does not prevent any other tribe asserting interests in land within the Ngai Tahu takiwa.

The Ngai Tahu Claims Settlement Act 1998

It is the contention of Ngai Tahu that the Settlement Act precludes or is inconsistent with any assertion of interest in land within the Ngai Tahu takiwa by any other tribe. Parliament is said to have necessarily intended that result. The Crown position is slightly different. While maintaining that any claimed interest inconsistent with the Maori Appellate Court determination is precluded by the statute, Mrs France acknowledged that a claim to the Waitangi Tribunal not based on ownership of land, but asserting some other lesser interest, could be maintained. The Crown submits, however, that the scheme of the Settlement Act would preclude any remedy in land being returned to Ngati Apa, because of the comprehensive arrangements within the takiwa made through the legislation with Ngai Tahu. Ellis J considered that all of Ngati Apa’s claims were made “in right of ownership” and would be barred by the legislation.
The arguments raised by the parties as to the effect of the Settlement Act are based on the specific statutory language and also on the overall scheme of the Act. It is therefore necessary to consider it in some detail.
The purpose of the Settlement Act, as recorded in its long title is:
(a)To record the apology given by the Crown to Ngai Tahu in the deed of settlement executed on 21 November 1997……
(b)To give effect to certain provisions of that deed of settlement, being a deed that settles the Ngai Tahu claims
The preamble to the Settlement Act recites the history of the transfer of Ngai Tahu lands, Ngai Tahu’s pursuit of its grievances, the claim under the Treaty of Waitangi Act 1975 and the findings of the Waitangi Tribunal, the negotiations between Ngai Tahu and the Crown and the settlement of the claim.
Paragraph B of the preamble recites:
B. The Treaty of Waitangi was signed by Ngai Tahu in 1840 at Akaroa (May 30), Ruapuke Island (June 9, 10), and Otakou (June 13). Ngai Tahu, is today and was at the time of the signing of the Treaty, the tangata whenua within the boundaries already confirmed in Te Runanga o Ngai Tahu Act 1996. In the years following the signing of the Treaty the Crown, through its representatives and agents, sought the transfer of land from the Ngai Tahu people to the Crown. This was achieved through 10 major purchases: Otakou 1844, Canterbury (Kemps) 1848, Port Cooper 1849, Port Levy 1849, Murihiku 1853, Akaroa 1856, North Canterbury 1857, Kaikoura 1859, Arahura 1860 and Rakiura 1864. The Ngai Tahu signatories to those deeds, as recorded in Appendix 2 of the Waitangi Tribunal’s Ngai Tahu Report 1991, are listed in Schedule 2.
Ngati Apa does not dispute that Ngai Tahu are tangata whenua within the boundaries described in Te Runanga O Ngai Tahu Act 1996. It maintains that Ngai Apa, too, were tangata whenua within the portion of the lands described lying between Kawitiri and Kahurangi. Nor does paragraph B of the preamble purport in its terms to exclude claims to such status by non-Ngai Tahu.
Similarly, although paragraph B recites that the Arahura Purchase achieved transfer of land “from the Ngai Tahu people to the Crown”, the Ngati Apa claim is not inconsistent with that position. The recital does not purport to record that no other tribal group had interests in the land conveyed.
It is of significance that the Act is the “Ngai Tahu Claims Settlement Act”. It is an Act which settles the Ngai Tahu claims. It does not in its terms purport to affect or settle the claims of any other tribal groups
Section 6 records the apology given by the Crown given to Ngai Tahu in the Deed of Settlement. Two paragraphs of the apology recorded by the Act are relied upon by Ngai Tahu for the purposes of the present argument.
First, in paragraph 3:
The Crown acknowledges that, in breach of Article Two of the Treaty, it failed to preserve and protect Ngai Tahu’s use and ownership of such of their land and valued possessions as they wished to retain.

It is to be noted that this acknowledgement does not identify the land and valued possessions used and owned by Ngai Tahu.

Secondly, by paragraph 7:
The Crown apologises to Ngai Tahu for its past failures to acknowledge Ngai Tahu rangatiratanga and mana over the South Island lands within its boundaries, and, in fulfilment of its Treaty obligations, the Crown recognises Ngai Tahu as the tangata whenua of, and as holding rangatiratanga within, the Takiwa of Ngai Tahu Whanui.

“Takiwa of Ngai Tahu Whanui” is defined to mean “the area identified as the takiwa of Ngai Tahu Whanui in s5 of Te Runanga o Ngai Tahu Act 1996”.

The acknowledgement by the Crown that it recognised Ngai Tahu as holding rangatiratanga within the takiwa defined by s5 of Te Runanga O Ngai Tahu Act 1996 is not expressed to exclude the claim of any other tribal grouping outside Ngai Tahu to mana or rangatiratanga in relation to lands within the takiwa, if not inconsistent with the recognition accorded to Ngai Tahu. Given the concession of counsel for Ngai Tahu that it is theoretically possible for two tribal groups to have rangatiratanga in respect of the same district, there is no necessary implication of exclusivity.
Moreover, the distinct reference to “use and ownership” in paragraph 3 and mana and rangatiratanga in paragraph 7, suggests that the Settlement Act does not treat rangatiratanga and mana as equivalent to use and ownership. Even if the Act had purported to recognise Ngai Tahu’s rangatiratanga and mana within its takiwa as exclusive of any similar claims by other tribes, use and ownership or occupation (which is the foundation of Ngati Apa’s claim) might well, as Crown counsel acknowledged, found a Waitangi Tribunal claim.
“Ngai Tahu claims” is defined by s10. It means “all claims made at any time by any Ngai Tahu claimant” founded on the Treaty of Waitangi, common law, fiduciary duty or other right and arising out of loss of interest in land in the Ngai Tahu claim area. It includes a number of identified claims lodged with the Waitangi Tribunal. They include all ancillary claims made by those of Ngai Tahu descent. The list does not include any claim by non-Ngai Tahu. It does not include the claim of Ngati Apa which had been filed in 1995. “Ngai Tahu claimant” is not defined to include any non-Ngai Tahu claimant.
The definition of the “Ngai Tahu claims” is important in considering the finality of settlement provided for by ss461 and 462. Those sections provide:

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.

It is significant that these provisions do not preclude claims or enquiries except in respect of the “Ngai Tahu claims”. It is those claims only which are finally settled by the Settlement Act. The s10 definition of Ngai Tahu claims is explicitly limited to claims made by any Ngai Tahu claimant. It would have been easy for the legislation to provide that no claim by any tribal group might be brought in respect of the breaches of the Treaty arising out of that tribe’s use or occupation or ownership of land within the takiwa of Ngai Tahu, if that had been intended. For reasons given below, it is inconceivable that Parliament could have intended by implication to preclude a Ngati Apa claim to the Waitangi Tribunal that the Crown has breached its Treaty promises of protection of properties of Ngati Apa.
The Crown submits that it is significant that no reservation of the dispute as to Ngati Apa’s entitlement was provided in the Settlement Act, as it was for other claimants in the Waikato Raupatu Claims Settlement Act 1995. The Waikato Raupatu Claims Settlement Act expressly reserved for determination by the Waitangi Tribunal competing claims to the Maramarua Forest made by the Tainui Maori Trust Board and others and the Hauraki Maori Trust Board. But without such reservation the claim of the Hauraki Maori Trust Board would have been explicitly included in the claims brought by the “Waikato descendants of the Tainui waka who suffered or were affected by the confiscation of their land by the New Zealand Government under the New Zealand Settlements Act 1863……”, which were settled by the Act. The reservation was therefore necessary because, without it, the Crown would have settled the claims of all Waikato hapu to all Raupatu lands, including the Hauraki claim to the Maramarua Forest.
The two statutes are not comparable in this respect. The specific exclusion of the Hauraki Maori Trust Board was necessary to preserve its claim, which otherwise fell within the terms of the Raupatu Claims Settlement Act. Exclusion of Ngati Apa’s claim was not necessary because it did not fall within the Ngai Tahu claims.
By Part 9 of the Settlement Act, Ngai Tahu is given a right of first refusal in respect of Crown disposal of any “relevant land”. “Relevant land” is defined to include “the land in the Ngai Tahu claim area that on 21 November 1997 was, and on the commencement of the Act, still is …vested in the Crown”. The Ngai Tahu claim area is defined to include the takiwa of Ngai Tahu as identified in s5 of Te Runanga O Ngai Tahu Act 1996. The respondents rely upon this right of first refusal as being inconsistent with any remaining interest in Ngati Apa in the land within the takiwa of Ngai Tahu.
Clearly, the rights granted to Ngai Tahu may (depending upon the exercise of its option by Ngai Tahu), present an impediment to Ngati Apa’s receiving reparation from the existing land holdings of the Crown within the takiwa of Ngai Tahu, if Ngati Apa is successful in the Waitangi Tribunal and if the recommendations of the Waitangi Tribunal are agreed to by the Crown.
Such impediment is not however fatal to the Ngati Apa Waitangi Tribunal claim. In the first place it may not eventuate if Ngai Tahu does not wish to exhaust the Crown land reserves within the area in which Ngati Apa claims an interest. In the second place, the claim to the Waitangi Tribunal is not a claim for land. It is a claim that the Crown has acted in breach of its Treaty obligations of protection. If found to be substantiated, the claim may be answered by a range of remedies consistent with the settlement made with Ngai Tahu. That is a matter for the Waitangi Tribunal and for the Crown on receipt of its recommendations. In my view Part 9 of the Settlement Act provides no impediment to Ngati Apa’s pursuit of its claim.
Part 12 of the Settlement Act deals with mahinga kai or the places where food resources and natural materials are gathered. It provides for acknowledgement of places of special significance to Ngai Tahu. A number of “statutory areas” of special significance are identified in schedules to the Settlement Act. “Statutory acknowledgements” are given under this Part of the Act by the Crown on terms set out in ss206-220. These acknowledgements refer to statements made by Te Runanga O Ngai Tahu of the particular cultural, spiritual, historic and traditional association of Ngai Tahu with the statutory areas.
The Crown “acknowledges” the statements without more. Local authorities, the Environment Court and the Historic Places Trust are required to have regard to the statutory acknowledgements for standing purposes. They are not bound by the statements but must have regard to them in forming the opinion whether Te Runanga is directly affected (s208-210). The statutory acknowledgements may be cited by any Ngai Tahu as evidence of association, but s211(2) provides that the content of the statement:
……is not by virtue of the statutory acknowledgement binding as deemed fact upon consent authorities, the Environment Court, the Historic Places Trust, parties to proceedings before those bodies, or any other person able to participate in those proceedings, but the statutory acknowledgements may be taken into account by them.
As provided in s217, except as expressly provided in ss208-211, 213, 215 and 216,
(a) Neither a statutory acknowledgement nor a deed of recognition affects, or may be taken into account in, the exercise of any power, duty, or function by any person or entity under any statute, regulation, or bylaw; and
(b) Without limiting paragraph (a), no person or entity, in considering any matter or making any decision or recommendation under any statute, regulation, or bylaw, may give any greater or lesser weight to Ngai Tahu's association to a statutory area (as described in the relevant statutory acknowledgement) than that person or entity would give under the relevant statute, regulation, or bylaw, if no statutory acknowledgement or deed of recognition existed in respect of that statutory area.
Section 218 states that except as expressly provided in ss206-220:
Neither a statutory acknowledgement nor a deed of recognition affects the lawful rights or interests of any person who is not a party to the deed of settlement.

Section 219 limits the rights recognised by the statute:

Neither a statutory acknowledgement, nor a deed of recognition has of itself the effect of granting, creating, or providing evidence of any estate or interest in, or any rights of any kind whatsoever relating to, the statutory area.

These provisions are a careful statutory scheme which does not deem the statements of association to be fact and which expressly does not affect the interests of any person not party to the deed of settlement.
Part 12 of the Settlement Act also contains provision for “Topuni”. They are areas of land administered under either the National Parks Act 1980, the Conservation Act 1987, or the Reserves Act 1977 which have “Ngai Tahu values” and are declared as “Topuni” under the provisions of the Act. The texts of Ngai Tahu values in relation to Topuni are set out in Schedules 80-93 of the Act which also identify the areas declared to be Topuni. Schedule 81 is Kahurangi, the point north of Westport which is the boundary of Ngai Tahu’s takiwa as defined by the Te Runanga O Ngai Tahu Act 1996.
The statement of Ngai Tahu values contained in Schedule 81 identifies Kahurangi as an “tremendously significant landmark, marking the extreme north western point of the tribal takiwa”. The schedule indicates the significance to Ngai Tahu of Kahurangi as “an important expression of the iwi’s mana over the vast tracts of land to the south. Its significance in this respect is to be marked by the constructions of a pou whenua (boundary marker). Ngai Tahu have expended great effort and human sacrifice over many generations to maintain the security and integrity of their takiwa”.
By s239 the Crown “acknowledges” the Ngai Tahu values in respect of the Topuni, the texts of which are set out in the Schedules. Section 240 provides that Te Runanga O Ngai Tahu and the Crown from time to time may agree on “specific principles” for the Minister of Conservation which may be adopted by agreement and gazetted to avoid harm to, or diminishment of, the Ngai Tahu values in relation to each Topuni.
The New Zealand Conservation Authority and Conservation Boards are required to have “particular regard” to the Ngai Tahu values of the Topuni and any specific principles agreed upon in considering and approving general policy, management strategy or management plans, by virtue of s241. Those authorities are also required by s242 to consult with Te Runanga O Ngai Tahu as to the effect on Ngai Tahu values of any policy, strategy or plan. The Topuni declared by s238 are required to be identified and described in any relevant conservation management strategy or plan by s243.
The Director-General of Conservation is required to take action in relation to any principle notified in the Gazette under s240 and must take action in relation to those principles by reason of s244, but by s244(2), the Director-General “retains the complete discretion to determine the method and extent of the action”. Under s248, by agreement with Te Runanga O Ngai Tahu and the Minister of Conservation, the status of Topuni may be revoked.

Section 249 limits the purpose of Topuni and the acknowledgements of Ngai Tahu values in respect of them:
Without limiting sections 250 to 252, the declaration of Topuni by section 238 and the acknowledgement of the Ngai Tahu values in respect of those areas in section 239 are for the following purposes only:
(a)The agreement on specific principles pursuant to section 240:
(b) The requirement that the New Zealand Conservation Authority and conservation boards have particular regard to the Ngai Tahu values and those specific principles, as provided in section 241:
(c) The requirement that the New Zealand Conservation Authority and conservation boards consult with Te Runanga o Ngai Tahu and have particular regard to its views, as provided in section 242:
(d)The taking of action in respect of those specific principles as provided in section 244.
By s250, it is provided that, except as expressly provided in ss237-253:
(a) Neither the declaration of Topuni by section 238, nor the acknowledgement of the Ngai Tahu values in section 239, affects or may be taken into account in the exercise of any power, duty, or function of any person or entity under any statute, regulation, or bylaw; and
(b) Without limiting paragraph (a), no person or entity, in considering any matter or making any decision or recommendation under any statute, regulation, or bylaw, may give any greater or lesser weight to the Ngai Tahu values than that person or entity would give under the relevant statute, regulation, or bylaw, if no Topuni had been declared and no Ngai Tahu values acknowledged.
Section 251 provides that, outside the expressed purposes to which the declaration of Topuni and the acknowledgement of the Ngai Tahu values may be put, neither the declaration nor the acknowledgement by the Crown “affects the lawful rights or interests of any person who is not a party to the deed of settlement”. Section 252 provides that neither the declaration nor the acknowledgement of Ngai Tahu values by the Crown “has, of itself, the effect of granting, creating, or providing evidence of any estate or interest in, or any rights of any kind whatsoever relating to, Topuni”.
Section 254 gives specific authorisation to permit the erection of the pou whenua within Kahurangi National Park.
Part 12 of the Settlement Act also sets up Nohoanga entitlements which permit the vesting of land in Te Runanga O Ngai Tahu to permit members of Ngai Tahu whanui “to occupy temporarily, land close to waterways on a non-commercial basis, so as to have access to waterways for lawful fishing and gathering of other natural resources”. The Crown is required by s256 to create and grant 72 such Nohoanga entitlements for an initial term of 10 years
By s451, the Minister is empowered to deal with the Whakapoai land listed in Schedule 117. That land came to be Crown land under the South Island Landless Natives Act. In the area in which Ngati Apa claims to have interest, it includes a comparatively small block of land in the Westland land district.
Again, Part 12 is a precise recognition of Ngai Tahu interests. In my view Part 12 does not provide any impediment to the claims sought to be advanced by Ngati Apa. The provisions as to Topuni and the Whakapoai land in my view are carefully limited. They do not purport to affect the rights of anyone not party to the settlement deed. They are recognition of Ngai Tahu’s interests which do not enact the facts recorded.
This is the scheme of the Settlement Act. It implements the settlement with Ngai Tahu. It precludes further claims by Ngai Tahu. The settlement of the Ngai Tahu claims is final. The benefits specifically conferred upon Ngai Tahu cannot be challenged, but beyond the benefits expressly conferred upon Ngai Tahu, no rights or interests of anyone not party to the deed of settlement are affected. The recognition of Ngai Tahu’s interests are specific and carefully limited in effect. In my view the scheme of the 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. More importantly, for present purposes, it does not, expressly or by necessary implication, deny Ngati Apa standing to come to the Court to seek judicial review of the decision of the Maori Appellate Court.
I have come to this conclusion on the basis of what the Settlement Act does. With respect to those who consider that Parliament intended a more ambitious settlement than that of the Ngai Tahu claims, I am unable to discern any such intent from the language Parliament has chosen to use. What the Legislature has said is not inconsistent with Ngati Apa’s assertion of interest.
Considerable caution is necessary in ascribing to Parliament an intention not explicitly stated. I agree with the view expressed by Griffiths CJ in Richardson v Austen (1911) 12 CLR 463 at 470:
Then as to the argument from the assumed intention of the legislature, there is nothing more dangerous and fallacious in interpreting a Statute than first of all to assume that the legislature had a particular intention, and then, having made up one’s mind what that intention was, to conclude that that intention must necessarily be expressed in the Statute, and then proceed to find it.
It is perhaps even more dangerous to construe a statute to give effect to a perceived “assumption” Parliament is thought to have acted on. Even if it were possible to infer confidently that Parliament had assumed that no other tribes had an interest within the Ngai Tahu takiwa (an assumption I find it impossible to draw either from the language of the statute or from the report of the Select Committee that the Te Runanga o Ngai Tahu Act “is binding on the Crown in negotiating settlement with Te Runanga o Ngai Tahu”), the mere fact of any such assumption does not enact the assumption. The point was made by Lord Reid in West Midland Baptist Association v Birmingham Corporation (HL) [1970] AC 874 at 898:
These provisions do show that Parliament (or the draftsman) must have thought that the law was that compensation was assessable on the basis of value as at the date of notice to treat. But the mere fact that an enactment shows that Parliament must have thought that the law was one thing does not preclude the courts from deciding that the law was in fact something different. This has been stated in a number of cases including Inland Revenue Commissioners v Dowdall, O’Mahoney & Co Ltd [1952] AC 401. No doubt the position would be different if the provisions of the enactment were such that they would only be workable if the law was as Parliament supposed it to be.
For the reasons I have given in discussing the structure and language of the Settlement Act, the provisions of the enactment are perfectly workable without any assumption that claims by non-Ngai Tahu are precluded. In my view, moreover, any such implication of purpose would have to be irresistible. This case trenches upon basic rights. If the respondents are right, Parliament has legislated to deny Ngati Apa the right of access to the Courts and to the Waitangi Tribunal in respect of its tribal land-based interests in the West Coast. If the respondents are right, Parliament has denied Ngati Apa of status as people of mana in that land.
The question for decision therefore affects Ngati Apa’s rights to natural justice, recognised by s27 of the New Zealand Bill of Rights Act 1990 and affects the enjoyment of Ngati Apa’s cultural rights, recognised by s20 of the New Zealand Bill of Rights Act 1990. Such basic rights cannot be over-ridden by general or ambiguous words in a statute: R v Home Secretary Ex Parte Simms (HL) [1999] 3 WLR 328 at 341 per Lord Hoffman; R v Home Secretary Ex Parte Pierson [1998] AC 539 at 575 per Lord Browne-Wilkinson. This principle of legality, recognised by the common law, has been expressly enacted by s6 of the New Zealand Bill of Rights Act 1990 which provides that
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
Parliament has not expressly enacted that Ngati Apa can assert no Treaty or customary interest in the West Coast lands. It has not expressly purported to affect Ngati Apa’s status or to deem the land within the takiwa of Ngai Tahu to be exclusive of Ngati Apa’s interests. No such implication is necessary for the Settlement Act to work. The benefits conferred by the statute upon Ngai Tahu by the Settlement Act cannot be undone by Ngati Apa’s claim.
The Act does not, by necessary implication, deprive Ngati Apa of the standing to challenge the Maori Appellate Court determination for breach of natural justice. There is in my view legitimate purpose in the application for judicial review. I would allow the appeal and reinstate the application for judicial review. The majority, however, take the different view that the relief sought is too wide and that part of the application should be struck out.

Orders of the Court

In accordance with the views of the majority, the appeal is allowed and the order made by Ellis J striking out Ngati Apa’s application for judicial review is set aside. In its place the following orders are substituted:

1. Prayer (a) on page 22 of Ngati Apa’s amended statement of claim dated 19 May 1999 which seeks the setting aside of the order of the Maori Appellate Court made in November 1990 is struck out.
2. Ngati Apa may amend its application as it sees fit to incorporate a request for a declaration that the order is invalid on the two grounds set out in the amended statement of claim.

Ngai Tahu is to pay Ngati Apa costs to cover the application to strike out in both Courts in the total sum of $7500.00 plus disbursements to be fixed if necessary by the appropriate Registrar.

GAULT J

This is an appeal against an order made in the High Court striking out a proceeding for judicial review of orders made in 1990 in the Maori Appellate Court. The facts alleged in the statement of claim are to be taken as capable of proof. The material in the affidavits in support of the substantive application for review is irrelevant. The factual position is set out in the judgment to be delivered by Tipping J which I have read in draft.
The questions for decision, stated by the Waitangi Tribunal, pursuant to s6A Treaty of Waitangi Act 1975 in the context of Ngai Tahu’s claim Wai 27, and the material answer given in the declaratory order were:
Which Maori tribe or tribes according to customary law principles of “take” and occupation or use, had right of ownership in respect of all or any portion of the land contained in those Deeds at the dates of those Deeds;
If more than one tribe held ownership rights, what area of land was subject to those rights and what were the tribal boundaries.
---------
The Ngai Tahu tribe according to customary law principles of “take” and occupation or use had the sole rights of ownership in respect of the lands comprised in both the Arahura and Kaikoura Deeds of Purchase at the respective dates of those Deeds.
Ngati Apa wish to have set aside the order so far as it relates to land to which their own claim before the Tribunal (Wai 521) relates. They say their affected West Coast members were not represented in the proceeding in which it was made and that it was obtained in breach of their rights to natural justice and against inadequately resourced parties.
It is important to keep in mind that the challenged order is as to “sole ownership” of the land. It is not directed to any other interests in the land. Nor do any views expressed in the reasoning of the judgment of the Maori Appellate Court form part of the order. Ngati Apa, in challenging the order, must be seeking to challenge the ownership of Ngai Tahu. That must be on the basis that they were denied the opportunity to assert a competing ownership right.
It may well be that Ngati Apa will eventually establish to the satisfaction of the Tribunal or the Crown that their Treaty rights have been breached by the terms of the original acquisition of the land in question by the Crown or by the subsequent denial to them of their right to demonstrate their interest in the land and to have their grievance remedied. But I do not see that it is open to the High Court now to entertain an application to set aside the Maori Appellate Court’s order. That is because the land has since been described as part of the Takiwa of Ngai Tahu Whanui in Te Runanga O Ngai Tahu Act 1996 and to have been brought within the provisions of the Ngai Tahu Claims Settlement Act 1998.
In the Settlement Act, Parliament enacted (s6.7):
The Crown apologises to Ngai Tahu for its past failures to acknowledge Ngai Tahu rangatiratanga and mana over the South Island lands within its boundaries, and, in fulfilment of its Treaty obligations, the Crown recognises Ngai Tahu as the tangata whenua of, and as holding rangatiratanga within, the Takiwa of Ngai Tahu Whanui. [emphasis added]

In this respect it is to be noted that in clause 5.2 of their statement of claim Ngati Apa state that they “do not dispute, and never have, that Ngai Tahu was tangata whenua within the other boundaries” of their Takiwa. [emphasis added]

It was further enacted in Part 9 of the Settlement Act that the Crown must not dispose of any relevant land except in accordance with that Part (s49) and must give Ngai Tahu the right of first refusal if it is to be disposed of (ss65 and 66). Those provisions in my view are inconsistent with any right to an “ownership” interest in Ngati Apa.
If, as is alleged, Ngati Apa were not a party to the proceeding before the Maori Appellate Court they will not be bound by the decision. However, the grounds in the application for review appear to be advanced on the assumption that they will be bound by the decision unless it is set aside.
In his written submissions Mr Mathieson felt obliged to concede that even if the application for review were not struck out and were successful, the Waitangi Tribunal still would have no jurisdiction to entertain Ngati Apa’s claim without legislative amendment. That would be so only to the extent that Ngati Apa seeks from the Tribunal recommendations inconsistent with the Ngai Tahu Claims Settlement Act (s462). Since the declared purpose of Ngati Apa in challenging the decision of the Maori Appellate Court is to open the way to seek such recommendation from the Tribunal, that too must be seen as inconsistent with the Settlement Act.
If Ngati Apa wish to advance a claim on the basis of some interest in the land less than “ownership” it would seem that the Maori Appellate Court decision is of no relevance. To the extent that their purpose is to contest findings made in the course of the Maori Appellate Court’s reasoning but not forming part of the order, judicial review of the ultimate decision is inappropriate and unnecessary.
I am satisfied Ellis J was correct to strike out the proceeding and would dismiss the appeal.
I add this comment that if the position is as asserted, denial to Ngati Apa of the opportunity to advance a claim inconsistent with a statute might itself be a breach of their Treaty rights. That is not a matter for the courts, however, as they are bound to give effect to the statutes of Parliament.

KEITH J

The first issue in this appeal is to determine the real question or questions which the Ngati Apa Ki te Waipounamu Trust (Ngati Apa) seeks to resolve through its judicial review proceedings. That is not a straightforward matter. By contrast, two aspects of the immediate procedural context are straightforward: a strike out application proceeds on the assumption of the truth of the facts pleaded in the statement of claim, including in this case an appended summary of extensive historical research, and the application will not succeed if the statement of claim is capable of amendment to allow a tenable cause of action. In this judgment I have tried to avoid unnecessary repetition of matters covered in the other judgments.
The application for judicial review shows that Ngati Apa considers itself greatly disadvantaged in the pursuit of its claim to the Waitangi Tribunal and more broadly by the November 1990 decision of the Maori Appellate Court. The decision was made under s6A of the Treaty of Waitangi Act 1975, added to the Act in 1998 at the request of the Tribunal as a consequence of disputes about the boundaries in issue in this case which arose during the Ngai Tahu case before the Tribunal. Subsections (1), (4)(a) and (6) of the provision are as follows:
(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.
…
(4) The Maori Appellate Court shall have jurisdiction—
(a) To decide any question referred to it under subsection (1) of this section; …
…
(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.
We did not have extensive argument on the matter, but the three paragraphs appear to be cumulative and to confer only one power of decision on the Maori Appellate Court : the power of “determination” of boundaries in terms para (c). That aspect of the scope of the power does not affect my conclusion in this appeal, nor does the extent of the binding effect of the decision. Does that effect extend beyond the particular claim before the Tribunal which gives rise to the reference to the Appellate Court and does it bind parties who were not before the Tribunal in that claim or the Court in the related proceedings?
In the present case the formal decision of the Maori Appellate Court (supported by more than twenty pages of reasons as printed in Appendix 4 of the Report of the Waitangi Tribunal on the Ngai Tahu claim) is as follows:
TO: The Waitangi Tribunal
FROM: The Maori Appellate Court
On the 17^th day of March 1989 the Waitangi Tribunal did state a question to this Court requesting determination in respect of two areas of land purchased by the Crown and contained in the Arahura Deed of Purchase dated 21 May 1860 and the Kaikoura Deed of Purchase dated 29 March 1859:
(1)Which Maori tribe or tribes according to customary law principles of “take” and occupation or use, had rights of ownership in respect of all or any portion of the land contained in those respective Deeds at the dates of those Deeds.
(2)If more than one tribe held ownership rights, what area of land was subject to those rights and what were the tribal boundaries.
The decision of this Court is:
The Ngai Tahu tribe according to customary law principles of “take” and occupation or use had the sole rights of ownership in respect of the lands comprised in both the Arahura and Kaikoura Deeds of Purchase at the respective dates of those Deeds.
Having decided that Ngai Tahu only is entitled question two above does not require an answer.
That decision was then reflected in Te Runanga o Ngai Tahu Act 1996 and the Ngai Tahu Claims Settlement Act 1998 based on the Deed of Settlement which was negotiated following the publication of the Tribunal report. Because the strike out application and the judgment below are based on those Acts, it is essential to note the exact terms of that reflection. What s5 of the 1996 Act does is refer to the decision and then to define the “Takiwa of Ngai Tahu Whanui” as all the area of Te Waipounamu south of the northernmost borders “described” in the Appellate Court decision. Section 5 sets out the boundary from Cloudy Bay in the east via various geographic and survey points, through the northern part of the South Island including the area of Lake Rotoroa to Kahurangi Point in the west. The Act then provides for the incorporation of Te Runanga and mentions the existing 18 Papatipu Runanga, identifying the Takiwa of each. The incorporating and institutional elements of the substantive provisions directly implement the purpose of the legislation set out in its preamble, especially, first, to establish an enduring tribal structure to manage Ngai Tahu’s assets and business and to distribute benefits to the Papatipu Runanga and the individuals comprising the tribal membership; and, second, to have a body corporate, Te Runanga, to assume the related responsibilities. I agree with the Chief Justice that the Act, a private Act, is about those important internal structural matters. It does not purport to recognise or confer any rights, exclusive or not, in respect of lands within the Takiwa. I do not see the Act as having real significance in this litigation except by way of its definition of the Takiwa of Ngai Tahu, a definition which has had substantive consequences in the statute book only when it was adopted in the Settlement Act, and also in the Ngai Tahu (Pounamu Vesting) Act 1997 which is not directly in issue in this case.

Submissions

Mr Mathieson QC for Ngati Apa argued that the adoption by Parliament of the Maori Appellate Court's determination of the boundaries of the Ngai Tahu Takiwa should be regarded as being solely for geographical purposes. The order of the Court should not, he submitted, be regarded as stating that Ngai Tahu's Takiwa was exclusive in the sense of precluding all other claims. Thus Ngati Apa contends that Parliament's adoption of Ngai Tahu's Takiwa, as defined by reference to the Order, should not be regarded as prohibiting concurrent claims by other iwi who can show a sufficient connection with land in Ngai Tahu's Takiwa. The possibility of concurrent claims must be accepted, it is said, even though there is thereby the potential for more than one grievance in relation to the same land.
Mr Mathieson argued that as Ngati Apa has at least an arguable claim to a sufficient connection with the land in question, notwithstanding it lies within Ngai Tahu's Takiwa, Ngati Apa is entitled to challenge the Order. Mr Upton QC, for Ngai Tahu, argued that in the light of both the individual statutory provisions, and the legislation when seen as a whole, it was clearly Parliament's intention to recognise Ngai Tahu as having exclusive recognition for claims purposes within its Takiwa. There was therefore no room, he submitted, for any claim which sought to challenge or had the effect of undermining that exclusivity. Ms France, for the Crown, supported Ngai Tahu's stance, while suggesting that Ngati Apa might possibly be able to make a claim seeking relief which did not impinge on Ngai Tahu's rights in relation to the land itself, and the basis of which was not inconsistent with the Maori Appellate Court's order.

Discussion

Having considered the competing contentions against the legislative background we are satisfied that the fact Parliament incorporated the Maori Appellate Court's Order as an integral part of the Settlement Act precludes the High Court from setting aside the Order. In short, Parliament adopted the Order in such a way that its setting aside by the High Court would completely undermine an essential element of the Settlement Act.
The proceeding in the High Court seeking the setting aside of the Order would be bound to fail because it would amount to an impermissible challenge to a significant aspect of the Settlement Act. Mr Mathieson argued that if the Court came to that conclusion, the High Court proceeding should nevertheless be allowed to continue, because a favourable conclusion, ie. the setting aside of the Maori Appellate Court's order, would be useful to Ngati Apa in its intended attempt to have the legislation amended, so as to enable its claim to proceed. That, in our view, would not be a proper use of the processes of the High Court. It would be tantamount to an attack on Parliament's decision to accept the Maori Appellate Court's order, in spite of Ngati Apa's challenge to it before the Select Committee. The judicial process cannot be deployed for that purpose. To permit such a course would come close to, if not actually amount to, a breach of Article 9 of the Bill of Rights 1688 (in force in New Zealand by dint of the Imperial Laws Application Act 1988). Article 9 states that debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament.
The fact that the High Court is not entitled to set aside the Order would not necessarily preclude it from making a declaration to the effect that the Order was made in breach of natural justice or some other procedural requirement. Whether the Court should do so is of course a completely open question. There is a significant difference for present purposes between the formal setting aside of the Order which would remove a fundamental premise on which the Settlement Act was enacted, and the making of a declaration which would simply inform Parliament that what it thought was a secure foundation for the Settlement Act was not in fact secure. It would then be over to Parliament to determine what, if any, steps were necessary in consequence. The present proceeding is however at present differently framed.
Section 6A of the Treaty of Waitangi Act 1975 cannot be regarded as making a finding of the Maori Appellate Court binding on a person who was not a party to the proceedings in which the finding was made; albeit the finding is binding on the Waitangi Tribunal in that proceeding. Similarly an order not validly made would not of itself be binding on anyone, once the invalidity had been established. Ordinarily such an invalid order would be set aside but here the adoption by Parliament of the Order for the purposes of the Settlement Act makes any such setting aside inappropriate. It must be appreciated that substantive rights in terms of the Order and its legislative adoption cannot be altered except by further legislation. Any recommendation of the Tribunal would have to take account of the right of first refusal which the Settlement Act gives to Ngai Tahu.
The High Court's inability to set aside the Order does not prevent Ngati Apa from alleging as part of its claim in the Waitangi Tribunal that the making of the Order and indeed the legislation based upon it represented a breach of its Treaty rights. Again, whether such an allegation would be well founded is an entirely open question. The present proceeding, as noted in para [139], seeks a declaration that Ngati Apa's claim to the Waitangi Tribunal is valid and that the Waitangi Tribunal has jurisdiction to hear and adjudicate upon it. That aspect of the claim is presumably an attempt to get a declaration from the Court that the Order does not prevent Ngati Apa from making a claim to the Tribunal or the Tribunal from considering it. We can say immediately that the Order cannot be regarded as having that effect. Indeed, as we have said, the Order could itself be a source of complaint to the Tribunal. As the Waitangi Tribunal's powers are recommendatory only, nothing it may do can affect the legal position of Ngai Tahu or anyone else without legislative action. If therefore, in spite of or because of the Order, the Waitangi Tribunal considers that Ngati Apa has a justified Treaty grievance on any basis it may make such recommendation on the subject as it thinks fit.
We have indicated that although it is unable to set aside the Order, the High Court would be entitled to make a declaration concerning the procedural validity of the Order, if it saw fit and if the necessary grounds were established. There is however limited point in Ngati Apa amending the present proceedings to seek such declaration. This is because Ngati Apa may, if it sees fit, complain to the Waitangi Tribunal about the circumstances in which the Order was made and indeed about the effect of the Order. The Tribunal may investigate those complaints, if otherwise coming within its jurisdiction. The Tribunal can make such recommendations on these issues as it sees fit. Nevertheless Ngati Apa should have the opportunity of pursuing declaratory relief in the High Court if it still considers it worthwhile to do so in light of the judgments in this Court. We would therefore allow the appeal to that extent.
The Chief Justice and Keith J have mentioned the fact that Ngai Tahu sought to uphold Ellis J's decision on certain additional grounds which the Judge dealt with briefly at the end of his judgment. These grounds do not strictly amount to a cross appeal. They involve questions of delay and other discretionary matters which are not such as justify striking out, whatever their force may be on questions of substantive relief. The matters raised do not therefore affect our view that the appeal should be allowed to the extent we have indicated.
Mr Upton raised some general matters on the subject of costs. He contended that the Judge's decision not to award costs to Ngai Tahu in the High Court although they had succeeded there, was a manifestation of a broader and unsatisfactory trend not to award costs to successful parties in litigation over Maori issues. In the light of the view we take of the appeal this issue does not arise, at least so far as Ngai Tahu are concerned in this case. But we must confess we cannot see any general basis for dealing with costs in Maori litigation on a different footing from other litigation. We therefore agree with the order for costs in Ngati Apa's favour as set out in the judgment of the Chief Justice. We also agree with the other formal orders set out at the end of her judgment.

Solicitors

Gascoigne Wicks, Blenheim, for Appellant
Crown Law Office, Wellington, for First Respondent
Bell Gully, Wellington, for Third Respondent

[2000] NZCA 45

8 May 2000