Tūrāhui v Waitangi Tribunal
[2015] NZHC 1624
•10 July 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-346 [2015] NZHC 1624
UNDER the Judicature Amendment Act 1972 IN THE MATTER OF
the Treaty of Waitangi Act 1975
BETWEEN
LEWIS ATA TŪRĀHUI Applicant
AND
THE WAITANGI TRIBUNAL First Respondent
THE ATTORNEY-GENERAL Second Respondent
NGĀ HAPŪ O NGĀRUAHINE INC Third Respondent
TE RUNANGA O NGĀTI RUANUI Fourth Respondent
Hearing: 18-19 May 2015 Counsel:
T H Bennion and L Black for Applicant
H Carrad for First Respondent abiding
G L Melvin and C C McKay for Second Respondent
H J P Wilson and T N Ahu for Third and Fourth RespondentsJudgment:
10 July 2015
RESERVED JUDGMENT OF WILLIAMS J
TŪRĀHUI v THE WAITANGI TRIBUNAL & ORS [2015] NZHC 1624 [10 July 2015]
Contents
Background........................................................................................................................................ [2] Āraukūkū claims ............................................................................................................................. [6] The Taranaki Report: Kaupapa Tuatahi ....................................................................................... [12] The Ngāti Ruanui settlement ........................................................................................................ [19] The Ngāruahine mandate and settlement ..................................................................................... [22] The urgency decision....................................................................................................................... [38] Submissions...................................................................................................................................... [49] Issues for determination ................................................................................................................. [59] Two preliminary points: grappling with tikanga law................................................................... [60] Well-founded?.................................................................................................................................. [65] Preliminary findings are not enough ............................................................................................ [69] Interim findings too general anyway ............................................................................................ [72] The Practice Note ............................................................................................................................ [76] The relevance of the Ngāruahine settlement legislation............................................................... [79] Delay and diversion ......................................................................................................................... [83] Engagement with Ngāruahine ........................................................................................................ [88] Prejudice to Ngāruahine ................................................................................................................. [90] Rationality........................................................................................................................................ [92] Discretion and relief ........................................................................................................................ [93] Conclusion........................................................................................................................................ [94] Disposition........................................................................................................................................ [96]
[1] The applicant seeks judicial review of a decision of Sir Douglas Kidd1 refusing the applicant’s applications for resumption orders and/or an urgent hearing into the claims of his hapū, Āraukūkū.
Background
[2] The applicant claims for and on behalf of Āraukūkū hapū. Although his representativity is now denied by the second, third and fourth respondents, Sir Douglas’ decision accepted the applicant’s representativity and all are agreed that I too should proceed on that basis for the purpose of this application for judicial review. I will henceforth, therefore, refer to the applicant as Āraukūkū, for the sake
of simplicity.
1 Application for an urgent hearing by the WAI 552 claimant on behalf of the Āraukūkū hapū , Waitangi Tribunal, WAI 552, #2.35, 7 May 2015 [Decision of Sir Douglas Kidd on Urgency]. Acting under delegated authority from the Chairperson of the Waitangi Tribunal pursuant to clause 8(2), Second Schedule, Treaty of Waitangi Act 1975.
[3] The first respondent is the Waitangi Tribunal and abides in the usual way (and subject to the usual reservations of its position should the basis of the application change). The second respondent is sued on behalf of the Crown. The third and fourth respondents are organisations representative of two adjoining iwi of southern Taranaki, Ngāruahinerangi and Ngāti Ruanui.2
[4] It is common ground that Āraukūkū is a border hapu between both iwi. It can trace descent from both iwi and appears to have had mana whenua interests within the boundaries of both iwi. Its claims as a hapū of Ngāti Ruanui were settled fully and finally by the Ngāti Ruanui Claims Settlement Act 2003. Its claims pursuant to Ngāruahine whakapapa will be settled by Ngāruahine’s impending settlement legislation. But Āraukūkū says their Ngāruahine-based claims will be settled without the involvement of the hapū in the relevant settlement negotiations, and without Ngāruahine either holding or even purporting to hold a mandate to settle on behalf of Āraukūkū.
[5] It is necessary to trace the background to this matter in some detail before coming to the decision subject to review. It is, as they say, complicated. I will briefly summarise the nature of the underlying Āraukūkū claims in the Waitangi Tribunal before providing a précis of the Waitangi Tribunal’s 1996 Taranaki Report.3
I will then address the way in which Āraukūkū’s interests are dealt with in the Ngāti Ruanui settlement legislation before turning to Ngāruahine’s mandate processes and the treatment of Āraukūkū’s claims in both those processes and the Ngāruahine Deed of Settlement. Once that background is summarised, I will then turn to the decision
in question.
2 Throughout this judgment I will refer to the organisations sued as the third and fourth respondents as Ngāruahine (the commonly used short-form of the iwi’s full ancestral name) and Ngāti Ruanui respectively. On occasion, when referring to particular organisations (including the third respondent) seeking Ngāruahine’s iwi mandate, it will be necessary for the sake of clarity to refer to those organisations by name.
3 Waitangi Tribunal The Taranaki Report – Kaupapa Tuatahi (WAI 143, 1996).
Āraukūkū claims
[6] A first statement of claim was filed by Mr Tūrāhui on 4 October 1995. The claimant kin community is described in the claim as Ahitahi/Āraukūkū hapū. The claims are general in form relating to the entire district and resource complexes of the hapū, and including the destruction of the hapū village of Ketemarae. It also made claim in respect of the “takoha” system used by the Crown in the 19th Century, it was argued, to make payments to various hapu and rangatira following the confiscations in order to quiet their claims to the confiscated land. There is reference also to a 700 acre reserve within the Waipuku Patea block that had been “bought”
from Ahitahi hapū. The Tribunal registry gave this claim the descriptor WAI 552.
[7] A more detailed amended statement of claim was filed the following month on 21 November 1995 by Andrew Erueti, a legally qualified member of the hapū. This claim was more in the nature of a legal document. It contained a detailed set of allegations covering key claim headings for the hapū including: wrongful confiscation; Treaty breaching purchase of the Waipuku Patea block; loss of the Waipuku Patea reserve, the Tirotiromoana block and Taranaki maunga. Of importance to the applications before me is the fact that in that recast claim, the claimant sought resumption of the land underlying the Taranaki combined cycle power station. This, I understand, is the land in relation to which 20 years later, urgent resumption is now sought.
[8] In June 1997, Mr Tūrahui added a claim on behalf of Ngati Turi to WAI 552
in relation to the Mangaotuku Block west of Ngāti Ruanui’s claimed Area of Interest.
[9] Five years before the Āraukūkū claims were lodged, the Waitangi Tribunal had commenced its Taranaki hearings. They began in September 1990 and concluded in June 1995. Only claimant viva voce evidence was heard although the Tribunal had commissioned its own extensive expert historical evidence and the Crown had filed a small amount of written evidence of its own. The Tribunal issued an interim report in June 1996, a step supported by all participating parties at the time.
[10] The Āraukūkū claims were filed after the conclusion of hearings but before the Tribunal’s report.
[11] The Crown had made extensive concessions to the Tribunal in a document filed in November 1995 and entitled “Interim Response of Crown Counsel to Claims”. In the interim response, the Crown accepted that the confiscation of land “as it occurred in Taranaki” constituted an injustice and therefore a breach of the principles of the Treaty of Waitangi. The Crown advised that it did not consider it necessary to present further evidence on that subject. The Crown accepted further that the payment of large sums by way of “takoha” in order to practically implement its confiscations on the ground did not “alter the fact that the confiscations were in breach of the principles of the Treaty of Waitangi”. Crown counsel expressly refrained from commenting upon the claims of individual iwi.
The Taranaki Report: Kaupapa Tuatahi
[12] It was no doubt with these concessions in mind that the Tribunal issued its interim report. It found the confiscations and their supporting legislation to be in breach of the principles of the Treaty of Waitangi. It found further that various purchases of land including that of the 20,700 acre Waipuku Patea block (within which Āraukūkū say their primary inland interests lay) could be “discounted as valid acquisitions in Treaty terms”, because none “came near to satisfying the necessary
standards of honesty and good faith that the Treaty of Waitangi required …”.4
[13] The Tribunal thus came to clear conclusions of a general nature on key aspects of the Taranaki claims.
[14] Āraukūkū say these conclusions provide a firm foundation for the proposition
that their claims are well founded and that the Tribunal should proceed to hear their
1995 application for resumption.
[15] In its interim report, the Tribunal warned however that the report was not final. Rather, the Tribunal explained in its preface:5
To expedite intended negotiations for a settlement, it was arranged for the Tribunal to report on its preliminary views on the Taranaki claims, based on the inquiry so far.
Accordingly, this report gives initial opinions only. The Crown has yet to be heard on many matters raised and all others must respond before final conclusions are drawn.
Because no final conclusions can be given, no recommendations are made, or can be, in terms of s 6 of the Treaty of Waitangi Act 1975.
[16] The Tribunal continued:6
Leave has been reserved to parties or those admitted as interested persons to seek further hearing on the whole or any aspect of the claims or this report, if the proposed negotiations are unsuccessful or would benefit from further consideration of particular items.
[17] Further, in the body of the report, the Tribunal advised that, unless Taranaki hapū claims were resolved through negotiations, a second report would be necessary that would:7
… précis the history relevant to particular groups and associated ancillary claims that may need to be distinguished in any comprehensive settlement.
[18] The Tribunal concluded:8
A separate accounting for particular groups was seen to be necessary because they are not the same, were affected differently, and have different aspirations for the future.
The Ngāti Ruanui settlement
[19] Seven years later in 2003, the Ngāti Ruanui Settlement Act was enacted. The Act comprehensively settled all Ngāti Ruanui claims. Section 13(1)(c) defined Ngāti Ruanui to include Āraukūkū and Ahitahi hapū. By s 14, Ngāti Ruanui’s historical
claims included WAI 552 the Tūrāhui/Erueti claim.9 At the time Mr Erueti expressed
5 At (xi).
6 At (xi).
7 At 311.
8 At 311.
9 Ngāti Ruanui Settlement Act 2003, s 14(1)(c)(vi).
concerns on behalf of Āraukūkū. There had been exchanges between Mr Erueti and the Office of Treaty Settlements (OTS). He advised OTS on 15 December 2000 that Āraukūkū had “been working with Ngāruahine, not Ngāti Ruanui, regarding a raupatu mandate.” He expressed concern that, contrary to this, Ngāti Ruanui claimed Āraukūkū as a constituent hapū. The Director of OTS replied on 12 January
2001:
It is the Crown’s understanding that Āraukūkū hapū has affiliations to both Ngāruahine and Ngāti Ruanui. Āraukūkū hapū was originally included within the mandate of Ngā Hapū o Ngāruahine, although we have been advised that there had been moves more recently among at least some hapū members to realign themselves with Ngāti Ruanui. This is a matter for the hapū and the two iwi to resolve, it is not the business of the Crown. As with individuals with affiliations to both iwi, the Ngāti Ruanui deed of settlement will settle the historical claims or Āraukūkū hapū to the extent that they are Ngāti Ruanui claims. It will not preclude the hapū from progressing its Ngāruahine claims.
[20] In the result, this exchange came to be reflected in s 14(3)(b) of the Ngāti
Ruanui Settlement Act which expressly left alive:10
[Any] claim that a hapū, group, family, or whānau referred to in s 13(1)(c) may have as a result of being descended from an ancestor who is not a Ngāti Ruanui ancestor.
[21] To the extent that the Ngāti Ruanui-based claims of Āraukūkū were settled, these were excluded from the Waitangi Tribunal’s jurisdiction by the terms of s 6 of the Treaty of Waitangi Act 1975 (hereafter I refer to this measure as the Act). Ngāruahine-based claims of Āraukūkū remained unaffected.
The Ngāruahine mandate and settlement
[22] Ngāruahine and the Crown signed a deed of settlement in relation to the Ngāruahine claims more than a decade later on 1 August 2014. The deed contained no reference to Āraukūkū as a constituent hapū of Ngāruahine but it specifically purported to extinguish WAI 552, still then the only Āraukūkū claim on the Tribunal’s register.
[23] It is necessary, as a precursor to the Crown agreeing to negotiate with a tribal group for the settlement of its claims, that the tribe undertake a process to establish its right to speak for its constituent communities. This is known as a mandating process.
[24] In May 2010, the third respondent Ngā Hapū o Ngāruahine Inc, sought a mandate from the Ngāruahine communities to allow it to negotiate on their behalf for the settlement of Ngāruahine’s historical claims.
[25] The May 2010 draft deed of mandate included in the list of the claims to be settled, the claims of “Āraukūkū and others” lodged by Ata Tūrāhui and Ānaru Erueti. The claim number was referred to in the deed as WAI 557 but that is clearly a mistake. It should have been WAI 552. The hapū listed in the deed as constituent hapu of Ngāruahine did not however include Āraukūkū or Ahitahi, though it did list as one of the hapū, “Kanihi–Umutahi (me etahi)”.11 The marae attached to that hapū did not include Ketemarae, the village most associated with Āraukūkū and referred to in its statements of claim. The result was Mr Peter Ngatai, purporting to represent
Āraukūkū, as Chairman of Āraukūkū Hapū Inc, made a formal submission in relation to the deed and met with OTS officials to discuss the concerns of Āraukūkū about inclusion in the deed without their involvement or agreement.
[26] Meanwhile, two other groups applied to the Māori Land Court under s 30 of Te Ture Whenua Māori Act 1993 in July and August 2010 seeking to prevent the third respondent from obtaining a Ngāruahine mandate. The matter came before Judge Clark in September 2010 and he dismissed the applications in a comprehensive reserved decision issued in December. An appeal was lodged to the Māori Appellate Court but I was not informed of its result. An application was also made to the High Court in December 2010 to prevent the Crown from acting on Ngā
Hapū’s purported mandate. This application was dismissed.12
11 Me etahi means “and others”.
12 Manuirirangi v Ngā Hapū o Ngāruahine Iwi Inc [2011] NZAR 166.
[27] Āraukūkū was not at the centre of those disputes but the minutes of the Māori Land Court hearing in September record Mr Tūrāhui appearing at Court and claiming that his hapū – Āraukūkū – is a constituent Ngāruahine hapū. He complained that his hapū was being left out of the Ngāruahine settlement. Ms Edmonds appearing (with Mr Boast) for Ngā Hapū o Ngāruahine Inc explained
the Āraukūkū position to the Judge in these terms:13
Sir, as I understand it Āraukūkū is a hapū that if you like you might say is between two iwi. Over time it has affiliated to one or the other and sometimes both. My understanding, Sir, is Āraukūkū is within the claimed definition of Ngāti Ruanui with their deed of settlement and the Crown’s position is that their historical claims have therefore been settled.
[28] In any event, Ngāruahine communities duly gave Ngāruahine their mandate in clear terms. Āraukūkū was not included as a constituent hapū and seems not to have been involved as one of the mandate bestowing communities.
[29] The Crown formally replied by letter of 6 May 2011 to the concerns that had been expressed a year earlier by Peter Ngatai on behalf of Āraukūkū.14 An official advised:
To the extent that individual members of Āraukūkū Hapū affiliate to Ngāruahine, their claims will be settled through [the Ngāruahine] settlement. However, for the purposes of Treaty of Waitangi settlements Āraukūkū Hapū [is?] aligned with Ngāti Ruanui and the hapū is represented on the Ngāti Ruanui post-settlement governance entity.
We encourage you to talk to Ngā Hapū about opportunities for you to participate in the settlement process in the first instance.
13 (2010) 255 Aotea MB 131, as reproduced in Turahui v Waitangi Tribunal, Waitangi Tribunal, WAI 552 #A3, affidavit of Lewis Ata Turahui dated 17 February 2015.
14 See above at [25].
[30] Between February 2013 and 1 August 2014, there were regular exchanges between Āraukūkū spokespeople and OTS officials, and/or the Minister for Treaty of Waitangi Negotiations. I need not refer to all of them but two communications in particular seem to represent where parties had got to on Āraukūkū representation within Ngāruahine, in the period leading up to the settlement of that claim. On the Āraukūkū side an email dated 1 August 2014 which appears to be from Ata Tūrāhui
and Hori Manuirirangi,15 said in part:
The Āraukūkū hapū have never been approached by Ngā Hapū o Ngāruahine Inc about any mandate. They have not been mentioned by name in any mandate documents. Despite their marae falling squarely within the proposed settlement area, they have not been visited or approached as a hapū as part of the mandate process. They are not mentioned at all in the proposed settlement documents.
…
This is not a case of an internal dispute about how a hapū is best represented. This is a situation where a settlement with an iwi about to be endorsed by the Crown fails entirely to mention one of its constituent hapū, and that hapū has not been mentioned in any mandate documents.
It would of course be an outrage and an unprecedented situation in modern settlements, if the Crown were to consider it had settled claims with a primary contemporary hapū of an iwi, where the settlement documents never once mentioned that hapū, and that hapū had never been approached about that iwi settlement.
[31] A letter sent a year and a half earlier sets out the contrasting Crown position in this respect. In his 25 March 2013 letter to Mr Clive Tongaawhikau of Āraukūkū, the Minister said:
I am aware Āraukūkū hapū whakapapa to both Ngāti Ruanui and
Ngāruahine.
In 2011 the Office of Treaty Settlements wrote to Mr Peter Ngatai (former Chair of Āraukūkū Hapū Inc) advising that the Crown’s understanding is Āraukūkū Hapū aligned with Ngāti Ruanui for the purposes of Treaty of Waitangi settlements. Accordingly, it is the Crown’s view the claims of Āraukūkū are settled to the extent that they are based on whakapapa to Ngāti Ruanui. The letter noted Āraukūkū hapū as represented on the Board of Te Rūnanga o Ngāti Ruanui.
15 The email reproduction in the agreed bundle does not record who sent the email but I infer fro m a reply from the Minister for Treaty of Waitangi Negotiations dated 5 September 2014 that the senders were Mr Tūrāhui and Mr Manuirirangi and that the email was sent on 1 August.
Nonetheless, to the extent that Āraukūkū hapū’s historical Treaty claims are based on whakapapa to Ngāruahine, those claims will be settled through the Ngāruahine Treaty settlement. Similarly members of Āraukūkū hapū who can whakapapa to Ngāruahine will be able to benefit from the Treaty settlement between Ngāruahine and the Crown.
[32] At the conclusion of Ngāruahine’s settlement negotiations with the Crown in
2014, a draft deed of settlement was the subject of a formal consultation process for the purpose of determining whether a majority of iwi members wished to ratify it. This ratification draft of the deed did not, it seems, include any reference either to Āraukūkū or WAI 552. The Crown submitted in argument to me that this omission was a mistake. But, the Crown submitted, the post ratification deed did include a reference to WAI 552. This was the draft duly signed by Crown and claimant representatives. It is common ground that the final deed contained no reference to Āraukūkū itself.
[33] In a final act of defiance following Ngāruahine ratification of the deed of settlement, Āraukūkū representatives prepared a “declaration” containing the following three propositions:
I confirm that I am Ngāruahine and over 18 years old;
I also confirm that the Āraukūkū hapū is one of the recognised hapū that makes up the Ngāruahine iwi and is based at Ketemarae;
Further, I assert that the Ngāruahine boundary as set out in the Ngāruahine
Deed of Settlement is incorrect.
[34] During the month of July, the organisers obtained over 700 adhesions to the declaration. A number of them are the subject of authenticity challenges.
[35] In her affidavit put to the Tribunal in this application, Ngāruahine’s lead
negotiator explained matters this way:
We were aware that there was an Āraukūkū claim (WAI 552) and this
included Ahitahi, Āraukūkū and a hapū named Ngāti Turi.
Quite late in the drafting of the deed of settlement (22 July 2014), we were advised by OTS that the list of claims in the deed should also include three other claims and this included WAI 552. It was our view that as this was a claim brought by Āraukūkū, it was not a claim to be settled by Ngā Hapū. We were aware it was listed in the Ngāti Ruanui settlement and Āraukūkū was listed as one of the Ngāti Ruanui hapū. My recollection was that we were advised by the Crown that because the claim was brought by a group of hapū (in addition to Āraukūkū) and partly related to lands which were within the Ngāruahine Area of Interest, we had to include it in the list of partially settled claims so as to capture any part of it that may be related to the claims in Ngāruahine. We understood it was because OTS thought the claim may go beyond Āraukūkū and may include Ngāruahine hapū claims. OTS wished to make sure there were no Ngāruahine loose ends unsettled.
However, we at no time thought that this would mean that the scope of who was to be treated as Ngāruahine for the purposes of the settlement would thereafter include Āraukūkū. The claim definition of who was to be treated as Ngāruahine did not change just because this WAI claim was included in the list of partially settled claims.
[36] Earlier in the affidavit, Ms Noble listed the six hapū expressly referred to in
Ngāruahine deed and mandate. Her list did not include Āraukūkū. She said:
This has always been consistent with our understanding that Āraukūkū were, for the purposes of Treaty settlements, catered for in the Ruanui settlement and so were not represented on our trust and is consistent with our representation of hapū on Ngā Hapū.
[37] Before me, Mr Melvin for the Crown, submitted that this position was at odds with the stance the third respondent took during the course of negotiations. But to be fair to Ms Noble, her position was consistent with the view expressed by her counsel in the Māori Land Court in September 2010.
The urgency decision
[38] Āraukūkū applied for both an urgent remedies hearing and an urgent substantive inquiry on 4 February 2015. The applications were case managed through the evidence and submissions stage, and both applications were heard by teleconference on 16 April 2015. The Tribunal’s decision was issued on 7 May
2015.
[39] Sir Douglas first considered the application for an urgent remedies hearing. He considered it to be a prerequisite to the grant of such a hearing that, in accordance with s 6 of the Treaty of Waitangi Act, the Tribunal has accepted that the claim is well-founded. Applying the findings of Judge Clark in the Ririnui application on behalf of Ngāti Whakahemo,16 the requirements were that there be a registered claim; that the claim has been inquired into by the Tribunal; that the Tribunal has found that the claimant is or is likely to be prejudicially affected; by acts or omissions of the Crown in terms of s 6(1)(a)–(d) of the Treaty of Waitangi Act;
where such acts or omissions were inconsistent with the principles of the Treaty of
Waitangi.
[40] Sir Douglas considered that the 1996 Taranaki Report did not contain the findings necessary to make out the test. Sir Douglas focused on the interim wording used by the Taranaki Tribunal; the Tribunal’s indication that the Crown and other parties had yet to be heard; and that further reporting would be required on the claims of particular groups, their interests, and the effects of Raupatu on those interests, they being different in respect of different groups.
[41] Sir Douglas dismissed the application for an urgent remedies hearing and turned to the application for an urgent substantive hearing. In this respect, he applied the principles set out in the Waitangi Tribunal Practice Note.17 Key factors were whether:
(a) Āraukūkū could demonstrate that they were suffering or likely to suffer significant and irreversible prejudice as a result of pending legislation, policy, action or omission;
(b)there was any alternative remedy that, in the circumstances it would be reasonable for Āraukūkū to exercise; and
(c) Āraukūkū were ready to proceed urgently to a hearing.
16 Application by Ngāti Whakahemo for an urgent resumption hearing, Waitangi Tribunal, WAI 1471, #2.5.7, 26 May 2014 at [82].
17 The principles have since been reproduced in the following volume: Waitangi Tribunal Guide to the Practice and Procedure of the Waitangi Tribunal (Waitangi Tribunal, Wellington) at 4–5.
[42] Sir Douglas noted that other factors could also be considered, and in particular that it was appropriate to take into account “mitigating and balancing considerations in determining a practical course of action in the circumstances”.18
[43] Sir Douglas accepted that Āraukūkū did face irreversible prejudice unless Ngāruahine were willing to amend their representative structure so as to include Āraukūkū. He also found that the history of Crown treatment of Āraukūkū’s claims had not reflected particularly well on the Crown. The Crown’s stance between the January 2001 exchange with Mr Erueti and its 2014 position had been inconsistent, on the one hand providing comfort to Āraukūkū on the basis that the Ngāti Ruanui settlement left their Ngāruahine claims untouched, and on the other hand, in the context of the Ngāruahine settlement, highlighting the fact that Āraukūkū was represented in the Ngāti Ruanui governance entity but could claim interests as individuals only in the Ngāruahine settlement. All of this, while acknowledging throughout that Āraukūkū had both Ngāti Ruanui and Ngāruahine affiliations.
[44] Sir Douglas concluded:19
These points are enough to give a strong indication that Crown actions and omissions have at least contributed to, if not in some cases resulted in, the significant and irreversible prejudice the applicants are likely to suffer.
[45] Sir Douglas acknowledged however that the Ngāruahine settlement had been in gestation for five years, and that throughout this period Āraukūkū had alternative remedies available to them. They had, he accepted engaged to some extent in the Māori Land Court and the High Court, and had communicated extensively with the Crown over representativity. But they had failed to engage with Ngāruahine directly and had left their application for urgency until the very last minute. It was also relevant, Sir Douglas concluded, that Āraukūkū was represented in the Ngāti Ruanui structures, and Āraukūkū individuals who could whakapapa to Ngāruahine would
also receive some protection.
18 Decision of Sir Douglas Kidd on Urgency, above n 1, at [141].
19 At [156].
[46] In the end Sir Douglas concluded that there was likely irreversible prejudice to Āraukūkū as a result of the Ngāruahine settlement, but that had to be balanced against the prejudice to Ngāruahine arising from the fact that Āraukūkū had delayed taking any steps until the eleventh hour. He said:20
If the application were granted, there would inevitably be serious negative effects, either on the Tribunal’s ability to conduct an extremely rapid inquiry ahead of the introduction of settlement legislation or, alternatively, on Ngāruahine should the completion of their settlement be delayed for an unpredictable period.
[47] Sir Douglas accepted that the result in this case was “deeply unfortunate” for
Āraukūkū. Compounded by the fact that:21
… Part of the responsibility appears to lie with the Crown, from whom earlier, more timely and even-handed engagement and a more consistent approach might have avoided much of the prejudice that now appears imminent. However, the applicants could have done more to engage constructively with Ngā Hapū during the mandating process. Should this and other avenues have failed, a much earlier recourse to the Tribunal would have enabled the Tribunal to consider the merits of the case before reaching the brink of imminent prejudice.
[48] Sir Douglas concluded:22
On balance, it would be unfair now to ask Ngāruahine to revisit the work they have achieved in the months and years when the applicants choose not to take up the reasonable and significant opportunities for engagement that were available to them.
…
In my opinion the prejudice that may be suffered by members of Āraukūkū hapū that support this application does not outweigh the prejudice that may be suffered by Ngāruahine if their settlement, which has been many years in the making, is delayed. It does not warrant the diversion of Tribunal resources from the current inquiry programme.
20 At [169].
21 At [183].
22 At [185] and [187].
Submissions
[49] For Āraukūkū, Mr Bennion advanced the following propositions in challenging Sir Douglas Kidd’s refusal to grant an urgent remedies hearing:
(a) Sir Douglas was wrong to conclude that the Taranaki Tribunal had not found the WAI 552 claim to be well-founded when the report determined that the Taranaki confiscations and subsequent Crown actions connected to them breached the principles of the Treaty of Waitangi.
(b)Sir Douglas had unlawfully fettered his discretion by slavishly applying the requirement in the Waitangi Tribunal’s Practice Note that an application for an urgent remedies hearing must be supported by a report of the Tribunal in which the claimants’ claims have been determined to be well-founded. In this, Sir Douglas disregarded the special circumstances of this case, including the Crown’s 1995 concessions and clear interim findings in the Taranaki report.
[50] And in relation to Sir Douglas’s decision to decline the alternative application for an urgent claim inquiry, that decision was in error because:
(a) The Tribunal had no proper evidential basis to conclude that Āraukūkū had failed to make timely or sufficient efforts to engage with Ngāruahine over their inclusion in the settlement. The evidence was in fact that Ngāruahine never intended to include Āraukūkū in its settlement, believing Āraukūkū’s grievances had all been settled in the Ngāti Ruanui settlement.
(b) The possibility that settlement legislation might be introduced into the
House was an irrelevant consideration.
(c) An urgent Āraukūkū hearing would not prejudicially affect the Ngāruahine settlement because Ngāruahine did not consider the Āraukūkū claim was part of its settlement anyway.
(d)The prospect of additional delay in the Ngāruahine settlement and the inconvenient diversion of Tribunal resources necessary to undertake such inquiry cannot have been decisive in light of the significant and irreversible prejudice Āraukūkū would suffer through the loss of its ability to obtain resumption orders over memorialised land and permanent exclusion from Ngāruahine as a hapu.
[51] Āraukūkū considered that, properly seen in context, the conclusion reached by Sir Douglas was unreasonable in the Wednesbury sense.23
[52] The Crown response, in summary, was:
(a) Sir Douglas correctly construed the requirements of ss 6(3) and 8A of the Act: the Taranaki Tribunal had not found WAI 552 to be well-founded, making a remedies hearing unlawful.
(b)It followed that the requirement in the Tribunal’s Practice Note was correct that a report must be available concluding that the applicants’ claims are well-founded before an application for urgent remedies hearing may be granted.
(c) The possibility that settlement legislation would be introduced before the remedies hearing could be concluded was relevant to the application for an urgent claim inquiry.
(d)The prospect of delay in settlement and diversion of Tribunal resources if the application were granted are both relevant considerations.
(e) Sir Douglas was correct to conclude that Āraukūkū had not made timely or sufficient efforts to engage with Ngāruahine over participation in the Ngāruahine settlement. Āraukūkū had offered no
evidence to the contrary.
23 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1,
(f) Sir Douglas was correct to conclude that an urgent claim hearing could well have had a significant prejudicial effect on the Ngāruahine settlement.
[53] For Ngāruahine and Ngāti Ruanui, Mr Wilson’s submissions largely tracked those of the Crown. Some slight differences in emphasis or position should, however, be pointed out.
[54] As a preliminary point, Ngāti Ruanui and Ngāruahine accepted that Āraukūkū hapū members had whakapapa links to both iwi and had historically alternated in alignment between the two, but the iwi did not “necessarily accept Āraukūkū’s assertion that it is simultaneously a constituent part of both Ngāruahine and Ngāti Ruanui for Treaty settlement purposes”.24 Counsel submitted that double affiliation in this way was relatively unusual.
[55] Mr Wilson also pointed to the 1997 addition of the Ngāti Turi Mangaotuku claim to the WAI 552 claim. This addition, Mr Wilson argued, cannot have been settled in the Ngāti Ruanui or Ngāruahine settlements. Presumably, that is because Mr Wilson saw Ngāti Turi as a kin group separate from Āraukūkū. There is no evidence before me either way from any party on that proposition.
[56] Mr Wilson underlined the point that as the TCC Power Station is outside the Ngāruahine area of interest as set out in the relevant settlement deed, it would follow therefore that whatever the Ngāruahine deed did settle, “nothing in the Deed or Bill could affect [sic] any change to the legal position of any memorial on that land, as the Deed and Bill only give effect to or provide for redress within the Ngāruahine
‘Area of Interest”’.25
[57] Mr Wilson also emphasised that as a matter of first principle, it was for Sir Douglas to accord the weight he considered appropriate in the balancing exercise between competing relevant factors. It was not accepted that potential delay in
giving effect to the Ngāruahine settlement and diversion of Tribunal resources were
24 Synopsis of submissions on behalf of the Third and Fourth Respondents at [1.5].
25 Submissions at [2.6].
determinative factors. It was nonetheless open to Sir Douglas to give such weight to these or any other relevant factors as he considered appropriate in the circumstances of this case.
[58] Mr Wilson finally argued that an inquiry into the historical claims of Āraukūkū is statute-barred by a combination of the effect of s 6AA of the Act and s 15(3) of the Ngāruahine Claims Settlement Act 2003. This is a novel argument and was not pursued with any particular vigour by Mr Wilson before me.
Issues for determination
[59] In light of these submissions, the following issues must be answered:26
(a) Did Sir Douglas, in deciding not to hold an urgent remedies hearing and/or an urgent claim inquiry, fall into error in:
(i) finding that the Taranaki Tribunal had yet to conclude that the
WAI 552 claim is well-founded;
(ii) its treatment of the “well-founded” requirement in the Practice
Note;
(iii) considering as a relevant factor the possibility that Ngāruahine
settlement legislation might be introduced; and
(iv)finding that a delay in the Ngāruahine settlement and diversion of Tribunal resources caused by a decision to grant urgency outweighed other factors that supported such a decision?
(b)Did the Tribunal, in deciding not to hold an urgent remedies hearing or an urgent claim inquiry, fall into error in finding that:
26 The issues as posed largely follow those articulated by Mr Wilson in his submissions, for which
(i)Āraukūkū had not made sufficient and timely efforts to engage with Ngāruahine over the question of Āraukūkū’s inclusion in the Ngāruahine settlement;
(ii) an urgent hearing into the applicant’s claim would have a
significant prejudicial effect on the Ngāruahine settlement?
(c) Was the determination not to hold an urgent remedies hearing or an urgent claim inquiry unreasonable?
(d)Does the Tribunal have jurisdiction to inquire into the WAI 552 claim in light of s 15(3) of the Ngāti Ruanui Claims Settlement Act 2003?
(e) Should the Court, in any event, exercise its residual discretion to grant judicial review?
Two preliminary points: grappling with tikanga law
[60] It is “troubling” (to use Sir Douglas’s word from a different context) that he was not assisted by an assessment, supported in evidence, of the basis in tikanga law for the Āraukūkū claims expressed in WAI 552 generally, and in relation to the TCC power station particularly. Sir Douglas was not told what whakapapa lines support the claims made. Āraukūkū, Ngāruahine and Ngāti Ruanui kaumātua undoubtedly know the answer to these questions, even if the particular answers are contested. Sir Douglas was thus left to assume (as am I on judicial review), perhaps wrongly, key underlying facts and legal conclusions from those facts. If, for example, the Āraukūkū claim to the TCC Power Station is not via either Ngāruahine or Ngāti Ruanui lines, but from another whakapapa, the Ngāruahine settlement would not affect it and much of Sir Douglas’s reasoning would fall away. If, on the other hand, the whakapapa to the land is Ngāti Ruanui based, then Ngāti Ruanui’s settlement must bar the claim. Given that the land is situated outside the claimed Ngāruahine Area of Interest, but is clearly inside the Ngāti Ruanui Area of Interest, that second scenario seems reasonably likely. But Sir Douglas (and I) must simply assume that the WAI 552 claim, and more particularly the claim to the TCC Power Station land,
are based on Ngāruahine ancestral lines. On the basis of that assumption, the
Ngāruahine Deed will settle Āraukūkū’s claims without the hapu being:
(a) consulted on whether it supports the settlement; (b) represented on the Ngāruahine PSGE; or
(c) able, in its own right and name, to benefit from the settlement.
[61] This approach is necessary given the state of the evidence. But it is, with respect to counsel, unsatisfactory. It has the effect of reframing what is primarily a question of ancestral right (at least in the first instance) as a modern mandate question.
[62] A second tikanga-based point ought also to be made at this point. This is a case involving a hapū that does not fit neatly into the “large natural groupings” that coalesce to negotiate modern Treaty settlements. Āraukūkū is a border hapū able to claim descent from at least two neighbouring South Taranaki iwi. It has acknowledged territory running in a widish ribbon between the two. Since the Māori system of land titles is primarily descent-based and ambi-lineal,27 the Āraukūkū situation is relatively common, and all the more so because land rights subsist at hapū, not iwi, level. Tribal labels are not the source of title in tikanga law. Rather,
the labels sit as a political and social overlay above the more complex descent-based rights grid.
[63] More often than not, hapu that do not quite fit for modern Treaty settlement purposes are swept up in pragmatic iwi-based political accords, so present no practical obstacle to settlement. Occasionally, however, this pragmatism is not possible. Conflicts between leading personalities (and there is more than a hint of this in the present case) come then to reflect ancient tikanga-based divisions of right. The current disagreement between Ngāti Ruanui, Ngāruahine and Āraukūkū seems to be such a case. It is as well to keep this in mind when considering the issues for determination.
[64] I turn now to address the issues in the order outlined above.
Well-founded?
[65] Section 8A of the Act governs the Tribunal’s powers with respect to the TCC Power Station land. Subsection (2) provides that the Tribunal “may” recommend under s 6(3) that the subject land be returned to Māori ownership if it finds:
(a) that the claim is well-founded; and
(b) the “action to be taken” under s 6(3) to compensate for or remove the
prejudice should include return of the land to Māori ownership.
[66] If such a recommendation is made, then pursuant to s 8B, that recommendation is treated as interim only for 90 days. This cool-down period gives the parties a chance to negotiate their own agreement, but if no agreement is reached in that time frame, the recommendation becomes binding in accordance with the directives in ss 27B and 27C of the State-Owned Enterprises Act 1986.
[67] A finding that the claim is well-founded is therefore a threshold condition to any resumption recommendation under s 8A. Just what amounts to “well-founded” has been usefully summarised by Judge Clark in the Waitangi Tribunal in the Ririnui application for resumption,28 where he said:
… I consider that in order for a claim to be well-founded the following elements need to be present:
(a) There has to be a registered claim before the Tribunal;
(b) The claim has to have been inquired into by the Tribunal;
(c) The Tribunal has to have made findings that a claimant is or is likely to be prejudicially affected; by
(d) Acts or omissions by the Crown in the ways contemplated in section 6(1)(a)-(d) inclusive of the Treaty of Waitangi Act 1975; and
(e) That those acts or omissions were inconsistent with the principles of the Treaty of Waitangi.
[68] In the case of Āraukūkū, it cannot, in my view, be said that the Tribunal has made a finding that the WAI 552 claim is well-founded. The Tribunal’s general conclusions, although firm (and largely supported by the Crown in its “Interim Response of Crown Counsel”) present two insurmountable difficulties for Āraukūkū: first, none of the Tribunal’s findings are final and, second, such findings as are made are too general to assist Āraukūkū.
Preliminary findings are not enough
[69] The Tribunal noted in the preface to the Taranaki Report that the report contained “preliminary views” and “initial opinions only” in order to expedite negotiations. The Tribunal cautioned:
The Crown has yet to be heard on many matters raised and all others must respond before final conclusions are drawn.
[70] The Tribunal advised that it had taken the unusual step of providing an interim report because replies to the claimants’ cases from the Crown and other parties would unnecessarily “consume more years in preparation and presentation” in light of the Crown’s acceptance of key headline conclusions. But this meant, the Tribunal said, no recommendations were possible in terms of s 6 of the Act because “no final conclusions can be given”.29
[71] Here, the Tribunal states more or less explicitly that the report should not be construed as containing findings that the claims of the Taranaki tribes are well- founded.
Interim findings are too general
[72] The Tribunal made general (provisional) findings about Treaty-breaching activities of the Crown in Taranaki from engaging in war in breach of the Treaty, to land confiscation to the use of tākoha. But no specific findings were made with respect to Āraukūkū’s claim. Some lands in which Āraukūkū claimed an interest had been the subject of interim findings – for example, the Crown’s acquisition of the Waipuku Pātea block – but the Tribunal made no assessment of the extent of
Āraukūkū interests involved (if any at all). Indeed, the Tribunal specifically noted
“hapū losses are not considered in the present report”.30
[73] Rather, the Tribunal in its conclusions considered that “a separate accounting” would be necessary for particular groups in a second report, because these groups “are not the same, were affected differently and have different aspirations for the future”.31 It follows that the Tribunal has reached no final conclusion on the question of whether Āraukūkū “is or is likely to be prejudicially affected” by relevant Crown actions in breach of the principles of the Treaty of
Waitangi, because no assessment has yet been undertaken of the effect of the Crown’s Treaty-breaching action on Āraukūkū. For example, the Tribunal has made no assessment of the extent of Āraukūkū’s interests in the rohe claimed by the hapū.
[74] It must be said, it is very likely that if the Tribunal did make the additional inquiry by way of assessment of the Crown’s response and the hearing of any submissions from co-claimants, it could well quickly come to a final finding that the Āraukūkū claim is well-founded. But the lack of such a finding at this point is a jurisdictional bar, not a deficit that can be made up in the Tribunal’s discretion on an urgency application.
[75] I conclude therefore that Sir Douglas was correct to find that the Taranaki Tribunal has not yet determined that the WAI 552 claim was well-founded. The conclusion that a remedies hearing was therefore not lawful must also follow.
The Practice Note
[76] The Waitangi Tribunal’s May 2012 Practice Note sets out guidelines for dealing with applications for urgent remedies.32 The opening paragraph reads as follows:
The Tribunal will consider an application for an urgent remedies hearing only if the applicants have a report of the Tribunal in which their claim or claims have been determined to be well founded.
30 At 134.
31 At 311.
32 Guide to the Practice and Procedure of the Waitangi Tribunal, above n [17], at 5.
[77] Mr Bennion submits this requirement is an unhelpful fetter on the Tribunal’s
discretion.
[78] This requirement largely reflects ss 6(3) and 8A of the Act in the sense that no Tribunal may entertain an application for resumption (or indeed other remedies) until it has concluded that the claim is well founded. It is not necessarily the case that separate reports are required. The Tribunal may decide to deal with “liability” (the well-founded part) and “damages” (the remedy part) in a single process. There is no statutory requirement that the two issues must be dealt with in separate hearings by way of separate reports. But that is not the way Mr Bennion pitched his case. His argument is that he was entitled to a resumption hearing first, but if not that, then an urgent claim inquiry. The Practice Note may be somewhat rigid in its approach, but not in a way relevant to the case as put by Āraukūkū. On any view of it, Āraukūkū’s claim was not ready to advance to the remedies stage.
The relevance of the Ngāruahine settlement legislation
[79] Here the applicant argued that once binding orders are sought, the Tribunal is operating essentially in its adjudicatory function,33 and deference to the political process is not appropriate.
[80] The first point is the one I have already made, that the application for an urgent remedies hearing must fail for the more fundamental reason discussed. Pending legislation will, however, be relevant to an urgent claim inquiry application as Mr Bennion rightly conceded. Secondly, as Mr Wilson pointed out, Sir Douglas’s reference to the Ngāruahine settlement legislation is one made in passing only.
Sir Douglas said:34
The timing of this application – only shortly before the settlement legislation is due to be introduced into the house – is troubling.
[81] While, it must be accepted, the comment was made, it was a very peripheral
aspect of Sir Douglas’s reasoning. His focus was on the five years prior to 2014
during which Āraukūkū took no formal steps to test its case. It must surely be
33 Haronga v Waitangi Tribunal & Ors [2011] NZSC 53, [2012] 2 NZLR 53 at [89].
34 Decision of Sir Douglas Kidd on Urgency, above n 1, at [164].
relevant in an urgency application to reflect on the fact that the applicant has waited until the very eleventh hour to take the steps that it could have been taken years earlier. The reference to impending legislation was made in that context and for that purpose.
[82] Properly viewed in context, imminent legislation was pertinent and relevant.
Delay and diversion
[83] Here Mr Bennion argued that it was speculative for Sir Douglas to conclude that the Ngāruahine settlement would be delayed by virtue of the steps Āraukūkū were taking when Ngāruahine did not consider Āraukūkū was part of its settlement at all. Further, Mr Bennion argued that in light of the firm findings of the Tribunal with respect to Treaty breach in Taranaki, and in light of the potential impact of the Ngāruahine settlement on Āraukūkū claims, it was pedantic, inappropriate and unreasonable to treat the inconvenient diversion of Waitangi Tribunal resources into an Āraukūkū hearing as more significant than the irreversible damage Āraukūkū faced. Mr Bennion argued that these two considerations were erroneously treated as decisive factors by Sir Douglas.
[84] I agree with the Crown that to suggest delay and diversion were determinative factors is to elevate them above the importance they were actually accorded in the decision. Equally important, as the Crown argues, was Āraukūkū’s “pattern of inaction” and failure to engage with Ngāruahine.
[85] Once the special case of remedies applications is set to one side (for the threshold reason discussed), it must be accepted that the Tribunal has a broad discretion in terms of relevant factors to be taken into account in considering an application for urgent inquiry, and, most particularly, in respect of the weight to be accorded to any particular factor.
[86] There cannot be any real doubt that an inquiry into Āraukūkū’s claims and (if it got that far) remedies, would be seen as directly relevant to the settlement of the Ngāruahine claim to the extent that the Āraukūkū claims were Ngāruahine derived. As I said earlier, the source of those claims is still at large. Nor can it be said that the
particular circumstances of a standing commission of inquiry with a finite register of claims and limited resources should not be able to decide the order in which claims are heard. The Tribunal could not operate effectively without the ability to control the queue of claims to be addressed.
[87] These two matters were therefore relevant and the weighting to be attached to them must necessarily be for Sir Douglas and not this Court on review.
Engagement with Ngāruahine
[88] Here, the Āraukūkū argument is that Sir Douglas was factually incorrect to hold that Āraukūkū had failed to make timely and sufficient efforts to discuss its concerns with Ngāruahine during the period of the latter’s negotiations with the Crown. Mr Bennion submitted the reverse was true: there was no evidence to show that Ngāruahine had engaged with Āraukūkū.
[89] This, in my view, is a practical issue. Sir Douglas was saying no more than that it is relevant to the issue of whether urgency should be granted that Āraukūkū had not only failed to test its case in the appropriate forum in the lead up to Ngāruahine’s settlement, it had not discussed the matter with Ngāruahine, the source of its problems. Āraukūkū is the applicant. It would be expected to set out the steps it has taken to avoid suffering significant and irreversible prejudice. The more extensive those steps, the more powerful the applicant’s case. The reverse will also be true. An applicant that has sat on its hands is less likely to succeed. Āraukūkū had, in Sir Douglas’s view, sat on its hands. That conclusion is difficult to fault.
Prejudice to Ngāruahine
[90] Here, Sir Douglas expressed the concern that:35
Reconstituting the nature of participating hapū may require the parties to revisit the underpinnings of the settlement, resulting in fresh negotiations, ratification and so forth – a process that has to date taken some years to achieve. Ngāruahine will not wish to wait that long, let alone revisit what has undoubtedly been an arduous process for them.
35 At [178].
[91] In my view, that conclusion is reasonable and logical. An inquiry into Āraukūkū claims and (again if it got that far) remedies may, to a greater or lesser extent, encroach on Ngāruahine interests. That is why WAI 552 is in the Ngāruahine Deed of Settlement for extinguishment, even although Āraukūkū itself is not named as a constituent Ngāruahine hapu. It is logical and reasonable therefore to conclude that Āraukūkū success in the Waitangi Tribunal process could come at the cost of Ngāruahine and therefore potentially affect Ngāruahine’s settlement package. The Crown will not wish to pay twice for the same claims.
Rationality
[92] In light of the conclusions reached above, and of the fact that Mr Bennion’s arguments under the rationality heading effectively re-cast his earlier arguments in relation to errors of law or fact, there is no merit in the argument that the decision by Sir Douglas was irrational.
Discretion and relief
[93] It is unnecessary for me to address these questions. It is also unnecessary for me to address Mr Wilson’s argument arising from s 15(3) of the Ngāti Ruanui Claims Settlement Act 2003.
Conclusion
[94] The application for judicial review of Sir Douglas Kidd’s decision must therefore fail. Pitched as an application by way of judicial review, the necessary analysis is relatively straight forward, but that does not mean the Āraukūkū application for an urgent inquiry lacked merit. As Sir Douglas’s comprehensive decision amply demonstrates, a merits assessment was anything but straightforward. The fact that Āraukūkū stands to see its Ngāruahine based claims extinguished without its consent, or even participation, was a powerful factor in favour of the application. But in the end, Sir Douglas found the countervailing effects on Ngāruahine outweighed this admitted prejudice in light of Āraukūkū’s long term inaction.
[95] Once Sir Douglas had come to the conclusion that the threshold requirement for a remedies hearing had not been satisfied, establishing thereby that there was no right to a remedies hearing, he had a broad discretion to decide whether an urgent claim inquiry should be allocated. Sir Douglas took into account relevant considerations, disregarded irrelevant considerations and correctly construed his powers in reaching a rational decision. Another Waitangi Tribunal member or presiding officer could well have come to the opposite conclusion on these facts. But the function of this Court is not to weigh those merits. Rather it is to assess legality in a broad sense. It is at that level that the application must fail.
Disposition
[96] The application must be dismissed accordingly. The second, third and fourth respondents will be entitled to costs on a category 2B basis.
Williams J
2