Traditional Tribes v Treaty of Waitangi Fisheries Commission HC Auckland CP122SW/99

[2002] NZHC 62

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CP122SW/99

IN THE MATTER of the Judicature Amendment Act 1972; Declaratory Judgment Act; the Maori Fisheries Act 1989 and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992

BETWEEN TRADITIONAL TRIBES (TE ARAWA MAORI TRUST BOARD & OTHERS)
Plaintiffs

AND TREATY OF WAITANGI FISHERIES COMMISSION & OTHERS
Defendants

CP171/97 (Wgtn)

IN THE MATTER of the Judicature Amendment Act 1972; Declaratory Judgment Act; the Maori Fisheries Act 1989 and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992

BETWEEN EUGENE RYDER, FIONA GLANCY, ALEXANDER WATSON & ORS
Plaintiffs

AND TREATY OF WAITANGI FISHERIES COMMISSION & OTHERS
Defendants

Hearing (at Wellington): 8 February 2002

Counsel: I R Millard, QC, with G Boswell for the Ryder plaintiffs
J G Fogarty with D Crooke for the Traditional Tribes
C R Carruthers, QC, with J P Ferguson for Treaty of Waitangi Fisheries Commission P J Radich with K L Rikihana for Te Runanga O Ngai Tahu and Treaty Tribes Coalition Ltd
C R Stannett for Te Whanau O Waipareira Trust, Manukau Urban Maori Authority and Te Runanga O Nga Maata Waka
No appearance for Te Kotahitanga O Te Arawa Waka Fisheries Inc
V L Hardy for the Crown (abiding the decision of the Court)
P Harman for the applicants in CP395/93
No appearance for Tainui Waka Fisheries

Judgment: 8 February 2002

JUDGMENT OF DOOGUE J

Solicitors:
Woodward Law Offices, Lower Hutt, for the Ryder plaintiffs
Woodward Law Offices, Lower Hutt, for the Traditional Tribes
Walters Williams & Co, Wellington, for Treaty of Waitangi Fisheries Commission
Bell Gully, Wellington, for Te Runanga O Ngai Tahu and Treaty Tribes Coalition Ltd
Russell McVeagh, Auckland, for Te Whanau O Waipareira Trust, Manukau Urban Maori Authority and Te Runanga O Nga Maata Waka
Rangitauira & Co, Rotorua, for Te Kotahitanga O Te Arawa Waka Fisheries Inc
Minter Ellison Rudd Watts, Auckland, for Tainui Waka Fisheries
Crown Law Office, Wellington, for the Crown
Rishworth Wall & Mathieson, Gisborne, for the applicants in CP395/93

Introduction

[1] This is an application under s 8 of the Judicature Amendment Act 1972 by existing plaintiffs, but not all of them, in the Maori fisheries litigation. It seeks to defer consultation required by statute of the defendant Commission until the earliest of provision of certain information or a full hearing of the particular issue. The relief sought is expressed to be injunctive to restrain the defendant Commission

“from commencing consultations on the proposals in the Discussion Document “He Anga Mua A Path Ahead” of December 2001 until 14 days after the [Commission] has released to the Plaintiffs full details of the lease rounds conducted from 1990 down to the present time (including wet fish for the 2001/02 season and for southern blue whiting), such details:

(a) To be in electronic and hard copy form;

. . .

(f) To be available for use in the consultations and before the Parliamentary Maori Affairs Select Committee

Unless the Court otherwise orders.”

I do not set out (b) to (e) in the application as I understand them to have been largely met by the Commission.

[2] In essence the plaintiffs say that until they obtain the information sought in electronic form and, unless they are entitled to use it in consultations with persons or bodies other than the Commission, the information already supplied to the plaintiffs in a paper form is inadequate for their purposes and they are being improperly restrained in its use.

[3] The background to the Maori fisheries litigation and to the present steps being taken by the Commission is, of course, a long and detailed one which it is unnecessary to enter into here. The present judgment will concentrate solely on the limited issues before the Court on the present application and on the limited background necessary to make those issues understandable.

The statutory context

[4] Maori Fisheries Act 1989

“6. Additional functions

Without limiting the generality of section 5 of this Act, the Commission shall have the following particular functions:

. . .

(e) In relation to the Deed of Settlement between the Crown and Maori dated the 23rd day of September 1992,-

(i) To consider how best to give effect to the resolutions in respect of the Commission’s assets, as set out in Schedule 1A to this Act:

(ii) To develop, after full consultation with Maori, proposals for a new Maori Fisheries Act that is consistent with the Deed of Settlement and makes provision for-

(A) The appointment, composition, and powers of any body succeeding the Commission; and

(B) The development of a procedure for identifying the beneficiaries and their interests under the Deed of Settlement, in accordance with the Treaty of Waitangi, and a procedure for allocating to them, in accordance with the principles of the Treaty, the benefits from the Deed of Settlement:

(iii) Within 90 days after the commencement of this paragraph, to propose for consideration by Maori provisions and a process for the Commission’s accountability to Maori:

(iv) To report to the Minister on the matters referred to in this paragraph.

. . .

9. Powers

(1) The Commission shall have all such powers as are reasonably necessary or expedient to enable it to carry out its functions.

(2) Without limiting the generality of subsection (1) of this section, the Commission shall have the power-

. . .

(1) After giving consideration to the matters referred to in section 6(e)(i) of this Act and reporting to the Minister on those matters under section 6(e)(iv) of this Act, and subject to subsection (4) of this section, to give effect to the scheme (if any) included in the report furnished to the Minister under the said section 6(e)(iv) (being the scheme providing for the distribution of the assets held by the Commission before the Settlement Date defined in the Deed of Settlement and being the assets referred to in clause 4.5.2 of that deed).

. . .

(4) The Minister may, at any time and from time to time, but not later than 30 days after the date of the receipt of the Commission’s report under subsection (2)(1) of this section, request the Commission to reconsider all or any part of the proposed distribution under that subsection; and the Commission shall reconsider its proposed distribution of assets, amend the proposal, and report further to the Minister accordingly.

. . .

Schedule 1A

Resolutions Adopted At Hui-A-Tau On 25 July 1992

ALLOCATION

AUTHORITY

1. That the hui endorse the decision made by the Commission to seek legislative authority to further secure the Commission’s intention to allocate its assets to iwi.

METHOD

2. That MFC examine the alternative methods to allocate, consult with iwi, and have prepared discussion material to enable agreement to be reached on the optimum method for allocation.

. . .

Treaty of Waitangi (Fisheries Claims) Settlement Act 1992

Preamble

WHEREAS-

. . .

(1) A deed dated the 23rd day of September 1992 was entered into between the Crown and Sir Graham Latimer, the Honourable Matiu Rata, Richard Dargaville, Tipene O’Regan, Cletus Maanu Paul, and Whatarangi Winiata, together with other persons who have negotiated with the Crown on behalf of iwi, the New Zealand Maori Council, the National Maori Congress, and other representatives of iwi, whereby it was agreed between the parties that-

. . .

(vi) The Treaty of Waitangi Fisheries Commission would consider the resolutions in respect of the assets held by the Commission at the settlement date specified in the deed, as adopted by the Annual General Meeting of the Commission on the 25th day of July 1992, and consider how best to give effect to the resolutions, and would be empowered to allocate those assets;

. . .

3. Interpretation of Act generally

It is the intention of Parliament that the provisions of this Act shall be interpreted in a manner that best furthers the agreements expressed in the Deed of Settlement referred to in the Preamble to this Act.”

Brief background

[5] In the past administration of the Maori fisheries legislation the Commission was responsible in respect of various lease rounds. It is alleged by the plaintiffs that inequities arose in the course of actions by the Commission. The Court of Appeal in Te Rununga o Muriwhenua v Te Runanganui o Te Upoko o Te Ika Association Inc [1996] 3 NZLR 10, per Lord Cooke at 20:

“Any past inequities in the lease rounds would fall to be taken into account and adjusted as far as reasonably practicable in a future settlement.”

[6] The Commission as presently constituted has issued the discussion document already referred to on 1 December 2001. That discussion document is issued to deal with what are described by way of convenience as the PRESA, pre-settlement assets, and POSA, post-settlement assets, in terms of s 6(e)(i) and (ii) of the Maori Fisheries Act.

[7] The discussion document notes that it is the first step in what is required of the Commission. It notes that the Commission is providing options for both the allocation of PRESA and the distribution of benefits of POSA. The document refers to the consultation process that the Commission intended to adopt. It referred to 11 information hui in December and then to 16 consultation hui in February and March of 2002 to gather submissions both written and oral.

[8] What has led to the present litigation is that in the course of the discussion document the Commission has expressed the view that no lease round inequities exist and that no adjustment should therefore be made to either the PRESA or POSA proposals to take into account such allegations. The discussion document refers to four possible allocation proposals, and that statement would apply to all. It is that statement which gives rise to the concern of the plaintiffs, who say that if they are to be able to challenge that statement then they require all the requisite information held by the Commission relevant to the lease rounds to enable them to establish that there were indeed inequities. It is further submitted on behalf of the plaintiffs that in any event such information is relevant to enable the conceptual nature of the allocations proposed to be spelt out in real terms.

[9] For the plaintiffs it is said that unless they have the requisite data in a form that can be readily analysed they are unable to challenge the view of the Commission which they regard as false.

[10] The defendants, on the other hand, to the extent that submissions have been made on their behalf, submit that the plaintiffs have all the requisite information and cannot be disadvantaged in the consultation rounds, and that in any event the present application is misplaced.

[11] There is the subsidiary issue of the use of the information already received by the plaintiffs. The Commission has treated it as information discovered to the plaintiffs in the course of this proceeding, with the limitations upon its use which arise. However, the Commission has also made it plain that they expect the plaintiffs to be able to use such information in making submissions to the Commission in the course of the consultation process entered into by the Commission. I will return to that subject later.

The plaintiffs’ case

[12] The plaintiffs’ case is based upon the proposition that when the Commission is obligated under s 6(e)(ii) to engage in full consultation with Maori it must provide all relevant information in a form that can be readily used and must in addition permit the plaintiffs to use it not only vis-a-vis the Commission but vis-a-vis all other persons or bodies with an interest in it, whether they be Maori, Parliament or the media. It is because of that that the plaintiffs seek to have the information held by the Commission in an electronic form provided in an electronic form and seek to have the restriction put by the Commission upon the use of the material supplied on paper uplifted. The case for the plaintiffs is that unless that is done there can be no meaningful consultation with the plaintiffs or with other Maori in the consultation rounds and that therefore the Commission should be restrained from continuing with its proposed process until the information is available in a form which can be so used. It is submitted for the plaintiffs that they have a position to preserve in terms of s 8 of the Judicature Amendment Act 1972 in that if relief is not granted as sought then their rights in respect of the substantive litigation are necessarily affected deleteriously. This is said because it is submitted that if the consultation proceeds without them having the requisite information, with the consultation being inadequate as a result, their position cannot be adequately protected in the substantive proceedings that would follow. Thus it is said that until the Commission meets their position the Commission should not pursue the process already commenced.

[13] The submissions are largely dependent upon the proposition that the relief sought is necessary to preserve the position of the plaintiffs pending the hearing of their substantive causes of action in respect of the issues already outlined. It is submitted that until the substantive proceedings have been dealt with then the Court should be dealing with the issue upon the basis that their position is justifiable unless found otherwise in the substantive proceeding. Submissions are also made for the plaintiffs that the issue is a justiciable issue in that the Commission, in exercising its powers under s 6(e) of the Maori Fisheries Act, is necessarily exercising statutory powers, and in making decisions as to how those powers are to be exercised it is effectively making statutory powers of decision which the Court is entitled to control under the Judicature Amendment Act 1972.

[14] The plaintiffs have highlighted their difficulties if the information in electronic form, in particular in Excel spreadsheets of data, is not made available to them electronically. There is evidence that in that event, even if the same information is held in paper form, it would be a time-consuming and expensive matter to have the information reconstituted on Excel data sheets to obtain the functionality which applies to the Excel software programme. The Commission has indicated through counsel that some of the information released by it to the plaintiffs is in any event in a paper form and not in an electronic form and not all the information held in an electronic form is in spreadsheets data in a software package such as Excel.

[15] There is insufficient information before the Court for me to be aware of the nature and extent of the information held in Excel and the nature and extent of information held in other electronic forms as to whether it would be of no particular advantage to the plaintiffs to have the information electronically.

[16] So far as the use of the information by the plaintiffs with people and bodies other than the Commission is concerned, as already indicated I will return to that topic later.

The defendants’ case

[17] The Commission and Te Runanga O Ngai Tahu and Treaty Tribes Coalition Ltd oppose the relief sought by the plaintiffs. They primarily argue that there is no justiciable issue raised by the plaintiffs and that in any event there is no jurisdiction to grant relief under s 8 of the Judicature Amendment Act 1972 and that, even if there were, it would be inappropriate for the Court to grant its discretion in favour of the plaintiffs.

[18] I do not intend to traverse those arguments in detail any more than I have endeavoured to traverse the arguments of the plaintiffs in detail. The issues are so narrow that that is hardly justified.

Reasons for decision

[19] All counsel accept that so far as the jurisdiction under s 8 of the Judicature Amendment Act 1972 is concerned the Court is bound by the decision of the Court of Appeal in Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 429, 430-431:

“Section 8 of the Judicature Amendment Act 1972 does not mandate any particular approach to the statutory test of whether an interim order is necessary for the purpose of preserving the position of the applicant. The legal answer must depend on an assessment by the Judge of all the circumstances of the particular case. Clearly the nature of the review proceedings will be material. So will the character, scheme and purpose of the legislation under which the impugned decision was made. And appropriate weight must of course be given to all the factual circumstances including the nature and prima facie strength of the applicant’s challenge and the expected duration of an interim order. Nor should the residual discretion under s 8 be circumscribed by reading qualifications into the broad language of the section.”

[20] I am not satisfied that I have jurisdiction to grant relief to the plaintiffs under s 8 of the Judicature Amendment Act 1972. Mr Fogarty for the plaintiffs he represents put the matter in the alternative in a common law framework, but even if that had formed part of the application I would not have regarded it as assisting the plaintiffs. Even if I were satisfied that there was jurisdiction to grant relief under s 8 of the Judicature Amendment Act 1972, I would not have been prepared to exercise my discretion to grant such relief at the present time and would not regard the case as appropriate for further considering common law relief. On my view of the matter the plaintiffs have no position to preserve at the present time. Nothing proposed by the Commission is detrimental to their present position. In effect they seek not to preserve their position but to benefit their position. It is not for the Court at this time to enter upon the rights and wrongs of whether there can be full consultation in the light of the materials received by the plaintiffs. It does not appear to be disputed, however, that at the present time the plaintiffs have relatively full records from the Commission in a paper form of the relevant documentation relating to the lease rounds. It is reasonably clear that the plaintiffs would be advantaged by having some of that information which is in a Excel format in an electronic form. However, they have the requisite information. The Excel software programme would be an aid to them, but its absence does not mean that they have a position which has to be protected.

[21] Nor can the limitation on use of the material already supplied by the Commission be such a detriment to the plaintiffs in their dealings with the Commission that the Court should properly interfere at this time. There is no clear detriment to the plaintiffs at this time which needs to be protected by the Court.

[22] Hence in respect of both of the complaints of the plaintiffs I do not regard their position as being one that needs to be protected.

[23] That puts to one side the issue of whether there is truly a justiciable issue raised by the plaintiffs. Effectively they are seeking to challenge the preliminary decision of the Commission in the discussion document that there were no lease round inequities. That is certainly not a statutory decision. The steps being taken by the Commission to consult are to fulfil their functions under s 6(e) of the Maori Fisheries Act. In one sense those functions could be said to come within the definition of a statutory power under the Judicature Amendment Act 1972, but nevertheless they are not steps which of themselves involve the exercise of any direct statutory power contrary to the interests of the plaintiffs from which the plaintiffs need protection. The relief sought by the plaintiffs at this time cannot be seen as necessary in any sense to preserve their position. There is clearly a desire on the part of the plaintiffs to be in the best position possible in respect of the information held by the Commission, both in relation to the Commission and in relation to others, but that is not necessary to preserve their position. In any event, even if I had been of a different view, I would not have regarded the strength of the plaintiffs’ case as such that it was necessary at this stage to grant them the relief sought, particularly when the relief sought by them affects Maori generally and the repercussions if the Commission’s process is derailed at this early stage. There is at the moment no statutory decision which could affect the plaintiffs in respect of which they may need protection at the present time. Nor is there any likelihood of any early decision in respect of which they might need protection. Neither the balance of convenience nor overall justice considerations are in favour of the plaintiffs’ stance when they appear to have all or nearly all requisite information, if not all in a form that they would like, and that they can communicate freely with the Commission and with others present at the Commission’s proposed hui.

[24] That is not to say that I am unsympathetic to the plaintiffs’ position in respect of what they actually seek. I simply fail to understand why the Commission does not give the plaintiffs in Excel format the information held by the Commission in that format. It has been submitted for the Commission that it is to prevent misuse of information so held on the basis of past experience. However, to require the plaintiffs to reconstitute the materials provided to them in an Excel format would seem far more likely to result in misuse than the actual provision of material in that format as sought by the plaintiffs. For litigation to be pursued on such a minor issue is difficult for me to understand. As already indicated, I know nothing of whether other material held electronically is held in a format where the release of the information in an electronic format would actually be of advantage to the plaintiffs as opposed to being entirely neutral in respect of paper copy. That is something that I suggest the parties reconsider.

[25] Nor can I understand why the Commission should treat the documentation supplied to the plaintiffs as if it were discovered documentation. The documentation is surely held by the Commission on behalf of all Maori. This is public law litigation. It is not private law litigation. Unless some good reason exists, such as privilege in respect of particular information, one would expect the plaintiffs to be entitled to use the information provided to them in the public arena in any way in which they thought fit. That issue is not squarely before me for determination any more than the issue of whether the Commission should be releasing information in Excel or other electronic format. I merely suggest that the Commission reconsider its stance on that issue. It seems undesirable at the very least that litigation such as the present should be in existence over such trivial issues.

[26] I make it clear, however, that I make no decision on either point as neither was clearly argued before me because of the form of the application to the Court, but I do suggest that the Commission reconsider its position to avoid further litigation in respect of it.

Decision

[27] The application on behalf of the plaintiffs is dismissed.

Costs

[28] The Commission and Te Runanga O Ngai Tahu and Treaty Tribes Coalition Ltd seek costs in accordance with the Schedules in the High Court Rules on a B2 basis, with appropriate provision for preparation of affidavit material. The plaintiffs submit that costs should lie where they fall. I am of the view that costs should lie where they fall in respect of this litigation. The litigation relating to the present application has clearly arisen because of the delays by the Commission in providing information which it said it would provide. Te Runanga O Ngai Tahu and the Treaty Tribes Coalition Ltd have chosen to join in opposition to the application. It is true that the application could have had serious implications for them, but that was their choice. While I have not felt it appropriate in the light of the law to consider any relief in favour of the plaintiffs, I have already said enough to make it clear that I regard their position as having some merit. I regard it as a case where effectively both sides have won and lost, and accordingly there will be no order as to costs.