Tūrāhui v Waitangi Tribunal - [2016] NZCA 387

IN THE COURT OF APPEAL OF NEW ZEALAND

CA448/2015
[2016] NZCA 387

BETWEEN	LEWIS ATA TŪRĀHUI for and on behalf of ĀRAUKŪKŪ HAPŪ Appellant
AND	THE WAITANGI TRIBUNAL First Respondent
AND	THE ATTORNEY-GENERAL Second Respondent
AND	NGĀ HAPŪ O NGĀRUAHINE IWI INCORPORATED Third Respondent
AND	TE RUNANGA O NGĀTI RUANUI TRUST Fourth Respondent

Hearing:	19 July 2016
Court:	Harrison, Kós and Toogood JJ
Counsel:	T H Bennion and E A Whiley for Appellant G L Melvin and E P Chapple for Second Respondent H J P Wilson and T N Ahu for Third and Fourth Respondents
Judgment:	10 August 2016 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Toogood J)

Mr Lewis Tūrāhui represents Āraukūkū,[1] a border hapū between two adjoining iwi of southern Taranaki: Ngāruahine[2] and Ngāti Ruanui. The hapū can trace descent from both iwi and it appears to have had mana whenua interests within the boundaries of both.
[1]Also referred to in the proceeding as Ahitahi/Āraukūkū.
[2]We adopt the practice of Williams J, in the judgment under appeal, of using the common short form of the iwi’s full ancestral name.
Claims under the Treaty of Waitangi Act 1975 (the Treaty Act) based on alleged breaches of Te Tiriti ō Waitangi, which Āraukūkū made as a hapū of Ngāti Ruanui, were settled fully and finally by the Ngati Ruanui Claims Settlement Act 2003.[3] It is not disputed that, because of the way in which they have been handled, the hapū’s claims pursuant to its Ngāruahine whakapapa will be settled by Ngāruahine’s impending settlement legislation, the Ngāruahine Claims Settlement Bill 2015 (the Ngāruahine Bill), which was introduced into Parliament on 14 July 2015 and given its Second Reading on 28 June 2016.[4] We understand the Bill is likely to be passed into law before the end of the year. But Āraukūkū says that the Ngāruahine-based claims will be settled without the involvement of the hapū in the relevant settlement negotiations.

Application to the Waitangi Tribunal for urgency

[3]Ngati Ruanui Claims Settlement Act 2003, ss 13–15.

[4]Ngāruahine Claims Settlement Bill 2015, cls 13–14.

On 3 February 2015, after the Ngāruahine settlement but before the Ngāruahine Bill was introduced, Mr Tūrāhui applied to the Waitangi Tribunal for an urgent remedies hearing or, alternatively, an urgent inquiry into Āraukūkū’s claims under the Treaty Act. The Tribunal was sympathetic to the hapū’s position and was critical of the Crown’s representatives for their part in a process which has created apparent injustice for Āraukūkū, but it declined the applications.[5] Mr Tūrāhui applied to the High Court for judicial review of the Tribunal’s decision.[6]

The High Court

[5]Waitangi Tribunal Application for urgent hearing by the Wai 552 claimant on behalf of the Āraukūkū hapū (Wai 522, #2.35, 7 May 2015) [Decision of Sir Douglas Kidd on Urgency], under delegated authority from the Chairperson of the Waitangi Tribunal pursuant to cl 8(2) of sch 2 of the Treaty of Waitangi Act 1975. For convenience,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tūrāhui v Waitangi Tribunal

Details

AGLC: Tūrāhui v Waitangi Tribunal [2016] NZCA 387
Case: [2016] NZCA 387
Decision Date: 10 August 2016 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Tūrāhui v Waitangi Tribunal was heard by Harrison, Kós, and Toogood JJ. The appellant, Lewis Ata Tūrāhui, representing Āraukūkū, a border hapū between Ngāruahine and Ngāti Ruanui iwi in southern Taranaki, sought an urgent hearing or inquiry from the Waitangi Tribunal regarding the settlement of claims based on Ngāruahine whakapapa. The Tribunal denied the application, and the High Court upheld the Tribunal's decision on judicial review. Tūrāhui appealed the High Court's decision to the Court of Appeal.

The legal issues before the Court of Appeal included whether the High Court Judge, Williams J, erred in holding that the Tribunal's decision on the application for urgency was not subject to judicial review and whether the Tribunal had correctly exercised its discretion in declining the application for an urgent remedies hearing or inquiry. The Court of Appeal found no error in the High Court's assessment of the legality of the Tribunal's decision, concluding that the Tribunal's decision was open to it and that it was not the function of the High Court to determine the merits of the application. The Court of Appeal further held that the Tribunal's decision not to grant urgency was not an error of law and that the appeal must be dismissed.

The Court of Appeal also noted that the passage of the Ngāruahine Claims Settlement Bill 2015 into law had settled Āraukūkū's claims to the extent they were based on Ngāruahine whakapapa, including the claim for resumption of the Stratford power station land that had been confiscated. The Tribunal no longer had jurisdiction to consider such claims. While there may be aspects of the hapū's claims remaining within the Tribunal's jurisdiction, the Court of Appeal held that events had overtaken any argument that they required urgent consideration. The appeal was dismissed, with no order as to costs.

Orders