Wairarapa Moana Ki Pouākani Inc v Attorney-General

[2023] NZHC 2086

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-32

[2023] NZHC 2086

UNDER

Section 27(3) of the New Zealand Bill of Rights Act 1990 and s 2 of the Declaratory Judgments Act 1908

IN THE MATTER

of an application for declaration of inconsistency

BETWEEN

WAIRARAPA MOANA KI POUĀKANI INCORPORATION

Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing:

17 July 2023

Appearances:

S J M Mount KC, M K Mahuika and T N Hauraki for the Applicant

V L Hardy, C D Tyson and J B Watson for the Respondent

Judgment:

7 August 2023

JUDGMENT OF COOKE J

(Protest to jurisdiction)

[1]        By application dated 21 April 2023 the Attorney-General seeks orders dismissing these proceedings for want of jurisdiction. The application is opposed.

[2]        In its statement of claim the applicant refers to the background of the Crown’s conduct in the wider Wairarapa region and subsequently at Pouākani. This history has already been described in previous judgments in earlier claims for judicial review.1 The background includes claims that were made to the Waitangi Tribunal, including

1      See Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767.

WAIRARAPA MOANA KI POUĀKANI INC v ATTORNEY-GENERAL [2023] NZHC 2086 [7 August 2023]

an application the applicant made for resumption of land at Pouākani pursuant to s 8A of the Treaty of Waitangi Act 1975. The applicant refers to the reports of the Tribunal and decisions of the Courts in relation to its claims.

[3]        The statement of claim then refers to the enactment of the Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua Claims Settlement Act 2022 (the Act) on 13 December 2022. That legislation settles the relevant claims as part of the overall settlement of the claims by Ngāti Kahungunu ki Wairarapa and Tāmaki-nui-ā-Rua. It includes the following provision:

15       Settlement of historical claims final

(1)The historical claims are settled.

(2)The settlement of the historical claims is final, and, on and from the settlement date, the Crown is released and discharged from all obligations and liabilities in respect of those claims.

(3)Subsections (1) and (2) do not limit the deed of settlement.

(4)Despite any other enactment or rule of law, on and from the settlement date, no court, tribunal, or other judicial body has jurisdiction (including the jurisdiction to inquire or further inquire, or to make a finding or recommendation) in respect of—

(a)the historical claims; or

(b)the deed of settlement; or

(c)this Act or the Te Rohe o Rongokako Joint Redress Act 2022; or

(d)the redress provided under the deed of settlement, this Act, or the Te Rohe o Rongokako Joint Redress Act 2022.

(5)Subsection (4) does not exclude the jurisdiction of a court, tribunal, or other judicial body in respect of the interpretation or implementation of the deed of settlement, this Act, or the Te Rohe o Rongokako Joint Redress Act 2022.

[4]        The applicant alleges that its rights affirmed by s 27(3) of the New Zealand Bill of Rights Act 1990 (NZBORA) have been limited by the Act.2 It seeks a declaration of inconsistency.

2      The applicant has also foreshadowed amended pleadings that include allegations that the right in s 27(2) was breached, and bringing the proceedings under Part 18 of the High Court Rules 2016 as contemplated by r 18.1(ba).

[5]        The Attorney-General has not filed a statement of defence. Rather, he applies under r 5.49(3) of the High Court Rules 2016 for the proceedings to be dismissed on the basis that the Court has no jurisdiction to hear and determine them. He contends that s 15(4) of the Act precludes the Court’s jurisdiction to enquire into the matters alleged in the statement of claim and to grant a declaration of inconsistency.

[6]        For the reasons outlined below I do not accept the Attorney-General’s contention that Parliament has so excluded the jurisdiction of the Court. I nevertheless accept that the Court should decline to exercise its jurisdiction to hear these proceedings seeking a declaration of inconsistency. That is because determining the proceeding would ultimately require the Court to evaluate the reasonableness of the Treaty settlement enshrined by the Act. This would be contrary to the finality of the settlement intended by Parliament, and would involve the questions of justified limitation under s 5 of the NZBORA that depend on questions of judgement concerning complex social and political issues. It would not be appropriate for the Court to engage in that inquiry in the circumstances. So whilst jurisdiction has not been excluded by Parliament the Court should nevertheless decline to exercise its jurisdiction, and the proceedings should be dismissed.

Was jurisdiction excluded by Parliament?

[7]        The suggestion that Parliament has excluded the jurisdiction of the Court engages constitutional principles. Under the system of parliamentary democracy adopted in New Zealand the role of the Court is an indispensable part of the rule of law. A duly elected Parliament enacts legislation, and an independent judiciary interprets and applies it. For a parliamentary enactment to be effective it must be interpreted and applied by the Courts. One cannot legitimately exist without the other.

[8]        It is for this reason that I do not accept the Attorney-General’s submission that the approach of the courts to statutory provisions that apparently exclude the Court’s judicial review jurisdiction are not directly relevant. That is because the ultimate reason why the Court is reluctant to find that privative or exclusion clauses oust judicial review is based on the same fundamental principles.

[9]        The effect of such clauses has been addressed in a number of leading New Zealand authorities.3 In H (SC52/2018) v Refugee and Protection Officer the Supreme Court said that Courts should be “slow to conclude that an ouster provision precludes applications to the High Court for judicial review alleging unlawfulness of any kind” and went on to find in that case:4

… the privative clause does not prevent the Court from exercising its supervisory jurisdiction to ensure that the requirements of the Act are met and the applicant’s claim is considered lawfully. Since the decision of the Court of Appeal in Bulk Gas Users Group v Attorney-General, it has been settled law that a privative provision does not necessarily prevent scrutiny of a decision based on an error of law on the part of the decision-maker that is otherwise reviewable. The Court may strike out review proceedings where the Court is satisfied that the available appeal rights provide a more appropriate pathway to a remedy than might otherwise have been sought in the review proceedings. But for the reasons given, the deprivation of first instance determination as required by the statute could not be remedied by the alternative pathway of appeal in the present case.

[10]      A similar approach has been adopted in the United Kingdom. In R (on the application of Privacy International) v Investigatory Powers Tribunal the United Kingdom Supreme Court held that such clauses can only protect legally valid decisions.5

[11]      I understand the authorities to mean that ouster clauses cannot be interpreted to exclude the Court’s jurisdiction in its entirety. It is the constitutional function of the Court to ensure that the rule of law is observed. Decision makers must exercise powers lawfully, and cannot act above the law. So such clauses are not to be taken to mean that statutory decision makers are entitled to act inconsistently with the legislation from which they derive their power. That must be beyond Parliament’s intent, and perhaps even its competence.

[12]      In Privacy International Lord Carnwath JSC explained the development of the relevant principles.6 He referred to the more flexible approach to assessing whether

3      Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA); Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153; H (SC5 2/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433.

4      H (SC 52/2018) v Refugee and Protection Officer, above n 3, at [63] and [78] (footnotes excluded).

5      R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] AC 491.

6      Delivering judgment for himself, Baroness Hale JSC and Lord Kerr JSC.

the Court would engage in judicial review, involving both respect for Parliament’s inferred intention, but also the need to uphold the rule of law, and finding “an appropriate balance between the two”.7 He said:8

That more flexible approach to the relationship between the legislature and the courts is in my view wholly consistent with the modern constitutional settlement, as confirmed by the [Constitutional Reform Act 2005], and recognised by this court in [Miller [2018] AC 61]. Against that background, the judgments of this court in [Cart [2012] 1 AC 663] point the way to an approach which … is both pragmatic and principled. The critical step taken by this court in Cart was to confirm, what was perhaps implicit in some of the earlier cases, that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review.

This proposition should be seen as based, not on such elusive concepts as jurisdiction (wide or narrow), ultra vires, or nullity, but rather as a natural application of the constitutional principle of the rule of law … and as an essential counterpart to the power of Parliament to make law. The constitutional roles both of Parliament, as the maker of the law, and of the High Court, and ultimately of the appellate courts, as the guardians and interpreters of that law, are thus respected. The question in any case is “the level of scrutiny required by the rule of law”, set on a basis which as stated in Cart is both “principled but proportionate” (para 51, per Baroness Hale JSC), or in Lord Dyson JSC’s words (para 133): “what scope of judicial review … is required to maintain the rule of law”; it being “a matter for the courts to determine what that scrutiny should be” (para 102, per Lord Clarke JSC).

[13]      I consider that the same principles apply here. Little significance attaches to the point that the jurisdiction said to be excluded here involves declarations of inconsistency rather than judicial review. Both are core functions of the Court associated with the rule of law. The same arguments would arise if s 15 of the Act was said to exclude the jurisdiction to challenge decisions by way of judicial review. The Attorney-General argues that the jurisdiction of the Court has been totally excluded to the point that the High Court rule which applies when the Court has no such jurisdiction should be invoked and the proceedings dismissed.9 This argument engages these principles.

7 At [130].

8      At [131]–[132] (emphasis added). The New Zealand equivalent to the settlement referred to in the Constitutional Reform Act 2005 (UK) might be most closely found in s 3(2) of the Senior Courts Act 2016.

9      Rule 5.49 is commonly invoked when there is an arbitration clause, or whether another Court, such as the Employment Court has jurisdiction rather than the High Court.

[14]      The principles so recognised by the exclusion clause cases, including that the Court’s constitutional function to interpret and apply parliamentary enactments is an indispensable element of the rule of law, are reflected in s 15(5) of the Act. The jurisdiction of the Court “in respect of the interpretation or implementation” of the Act is not excluded. That is necessary as the enactment would otherwise not be effective.

[15]      The terms of s 15(5) mean that litigation seeking to implement the Act, including any interpretation issues about them, is not excluded. Equally, an application under the Declaratory Judgments Act 1908, or the Court’s inherent power to grant a declaration as to the meaning and effect of the legislation would not be excluded. The ultimate question to be addressed when considering the Attorney- General’s argument is, therefore, whether proceedings seeking a declaration of inconsistency form part of the jurisdiction of the Court that cannot effectively be excluded, as reflected in s 15(5).

[16]      In my view proceedings involving making declarations of inconsistency with the NZBORA are properly considered to be an aspect of the Court’s function of interpreting and applying the law, and accordingly within the jurisdiction contemplated by s 15(5). When recognising the jurisdiction to make declarations of inconsistency in Attorney-General v Taylor France and Glazebrook JJ said that granting such declarations of inconsistency was a judicial function, and they referred to the analogous ability to make declarations under the Declaratory Judgments Act even when there was no lis.10 Declarations of inconsistency ultimately depend on questions of statutory interpretation — the interpretation of the legislation in question in light of the meaning and effect of the NZBORA. The only relief sought is declaratory. Proceedings which ask the Court to assess and declare whether the “interpretation or implementation” of the Act is consistent with the rights in the NZBORA fall naturally within s 15(5).

[17]      I do not consider that s 15(1)–(4) purport to exclude that jurisdiction. The meaning and effect of s 15(1) and (2) appear clear. It is apparent that Parliament is comprehensively settling all the claims associated with the subject matter of the

10     Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213 at [53]. See also Elias CJ at [94]–[100].

settlement. The “historic claims” are defined in detail in s 14. This lists all of the existing claims before the Waitangi Tribunal, and also includes language that is intended to capture all other claims of that kind, whether they have been brought or not in relation to the subject matter. This aspect of the meaning and effect of the legislation appears clear — such claims are settled.

[18]      The meaning and effect of s 15(4) is more ambiguous. But it is apparent that in addition to settling the historic claims Parliament is also providing that there is no jurisdiction to inquire into them in any new proceedings. This includes excluding the jurisdiction of the Waitangi Tribunal to conduct any new inquiry or make new recommendations into alleged Treaty breaches. That is particularly captured by the words in brackets “(including the jurisdiction to inquire or further inquire, or to make a finding or recommendation)”. It is also apparent that this exclusion is not limited to the Tribunal, but also includes any court or other judicial body. As the Attorney- General submitted it would make no sense to exclude the jurisdiction of the specialist tribunal but not also the court. But any intention to exclude jurisdiction beyond new proceedings advancing such claims is less apparent. Without the words in the round brackets the provision makes little sense. It would then most relevantly say that “… no Court … has jurisdiction … in respect of … this Act”. By themselves these words do not convey much by way of clear meaning. But when read together with the words in the round brackets Parliament is apparently excluding the jurisdiction of the Court in relation to any new proceedings concerning the settled claims, with the subject matter of the excluded claims more specifically particularised in s 15(4)(a)–(d).

[19]      I accept the Attorney-General’s argument that the commencing words “despite any other enactment or rule of law …” are broad and that the NZBORA is an enactment potentially covered by those words. I also accept the words “in respect of” are broad. But the substance of the jurisdiction so excluded must be found in the balance of the provision. There is no clear identification of the kind of proceedings so excluded other than those that involve the subject matter of the Act, and accordingly the settled claims.

[20]      I also do not accept the Attorney-General’s argument that s 15(4)(c) would have no substance at all if it had not been intended to exclude the jurisdiction of the

Court to make declarations of inconsistency, and that the provision is directed to such declarations because the only judicial work available in relation to the Act is that involving declarations of inconsistency. As he submitted the statutory provisions including such a subsection have been in use for many years, and before the declarations of inconsistency jurisdiction was recognised.11 So it cannot be said to be directed to this jurisdiction. The more natural reading of the list in subs (4)(a)–(d) is that it is a comprehensive identification of the subject matter that may no longer be subject to proceedings advancing claims that are now finally settled.

[21]      The reality is that s 15 does not directly address an application to the Court for a declaration of inconsistency, and such an application falls more naturally within     s 15(5). Section 15 uses wording that has been adopted in the other Treaty settlement legislation over many years. No material changes have been made to that statutory wording since declarations of inconsistency were recognised by the insertion of s 92J of the Human Rights Act 1993 in 2002,12 and then by the decisions of the Court in Taylor v Attorney-General in 2018.13 Sections 7A and 7B were then added to the NZBORA on 30 August 2022 by s 4 of the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022, two months before this Act was passed. If Parliament had intended to exclude the jurisdiction of the Court to make declarations of inconsistency once that jurisdiction was recognised this would have been made much clearer in the Treaty settlement legislation.14 Such a step would be a very significant one, including because of the expectations of comity that I will explain below.

[22]      As the applicants submit this interpretation is supported by the purpose of the Act, which is to implement a settlement that cannot be re-opened. Section 11 specifies that it is to be interpreted “in a manner that best furthers the agreements expressed in the deed of settlement”. But here the applicants are not seeking to advance the claims that have been settled in new proceedings. They make a different allegation. They

11 See, for example, Waikato Raupatu Claims Settlement Act 1995, s 9; Ngāi Tahu Claims Settlement Act 1998, s 461; Rongowhakaata Claims Settlement Act 2012, s 15; Ngāti Whare Claims Settlement Act 2012, s 13; and Ngāti Kuri Claims Settlement Act 2015, s 15.

12 Inserted by s 9 of the Human Rights Amendment Act 2001 (2001 No 96).
13 Above n 10.

14 The applicant referred to s 13(2) of the Prostitution Reform Act 2003 as an example of Parliament clearly legislating in a way inconsistent with the NZBORA.

accept that the claims are settled, that the jurisdiction of the Court to inquire into them is excluded by s 15, and that the settlement cannot be re-opened. But they allege that such legislation conflicts with their right in s 27(3) of the NZBORA to bring proceedings against the Crown and have them determined according to law in the same way as civil proceedings between individuals. These allegations are premised on the very effect that s 15 has. They seek a declaration of inconsistency as a consequence.

[23]      I also accept the applicant’s argument that the interpretative requirements of the NZBORA support its arguments. Indeed the interpretative mandate in s 6 of the NZBORA may go further than the common law presumptions of interpretation as it “mandates a more proactive approach to interpretation”.15 The Attorney-General’s argument that s 15 of the Act precludes the applicant’s right to bring proceedings against the Crown is not to be preferred under s 6 of the NZBORA. That involves interpreting s 15 so that it settles the historic claims and excludes the jurisdiction of the Court and tribunals to reassess the claims in any new proceedings. But it does not prevent proceedings which engage the Court’s interpretative functions, or considering proceedings for declarations of inconsistency which form part of those functions.

[24]      I recognise that a claim of inconsistency will often engage the question whether a limitation of a right is demonstrably justified in accordance with s 5 of the NZBORA. That may be so in the present case, as it could be found that there is an apparent limitation of the right in s 27(3), and accordingly there would be a breach unless that limitation were demonstrably justified under s 5. The Crown would have the burden to establish that a limitation was justified. Ultimately it would be for the Crown to decide whether it would advance such an argument, but I accept that if it did it would open up the subject matter of the settlement. In particular the question would arise whether the limitation on the right to bring proceedings under s 27(3) was demonstrably justified given what the Crown was giving by way of compensation under the settlement. But the fact that the arguments could lead to this if the Crown advanced such an argument does not establish that the jurisdiction is completely excluded. In my view the significance of this factor, and the arguments the Attorney- General advanced on that basis, are most appropriately addressed in relation to the

15     Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [56] per Winkelmann CJ.

second question — whether the nature of the inquiry the Court would be required to undertake means that it would be inappropriate for a declaration of inconsistency to be considered, and for proceedings seeking a declaration to be allowed to be pursued.

[25]      For these reasons I do not accept the argument that s 15 of the Act excludes the jurisdiction of the Court to make declarations of inconsistency.

Should jurisdiction be declined?

[26]      That is not the end of the necessary assessment, however. Much of what is advanced by the Attorney-General in support of the application may nevertheless provide reasons why the Court should decline to exercise jurisdiction. Whilst this application is brought under r 5.49 it could just as easily have been brought as an application to strike out or dismiss the proceedings on the basis that jurisdiction should be declined.

[27]      As is explained in the passage from Privacy International,16 cases of this kind engage the constitutional relationship between the legislature and the courts where the courts can be expected to respect the appropriate balance between the two branches of government. That balance was recognised when Parliament enacted the amendments to the NZBORA in response to the decisions of the courts recognising the jurisdiction to grant declarations of inconsistency. In the report of the Privileges Committee on what became ss 7A and 7B of the NZBORA, the Committee said:17

Declarations of inconsistency do not affect the fundamental principle of Parliament’s legislative supremacy, as recognised in section 4 of the Bill of Rights Act. This bill and our recommended amendments similarly would not alter that principle. A declaration of inconsistency is, however, of high public and constitutional significance. It is an unambiguous statement from a senior court or tribunal that the law of New Zealand infringes upon people’s protected rights in a manner that cannot be demonstrably justified. Given that the Bill of Rights Act requires courts to give legislation a rights consistent interpretation if one is available, such declarations will not be made lightly.

It is vital that the branches of government responsible for making laws and administering them—the legislative and executive branches, respectively— are both seen by the public to, and do in fact, consider such declarations properly. Our package of recommendations seeks to achieve this by providing

16 At [11].

17     Privileges Committee New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill

(30 September 2021) at 2.

a clear framework for dialogue between the branches of government. We believe it would represent a significant development in New Zealand’s constitutional architecture relating to fundamental rights, and hope that it will promote genuine engagement with rights issues.

It is worth noting that we are not proposing that either the legislative or executive branches be required by law to respond to a declaration of inconsistency in any particular way. In the spirit of dialogue and our constitutional arrangements, that is properly a matter for each branch to determine on its own.

[28]      A further aspect of the spirit of dialogue between the judicial and legislative branches, and the constitutional maturity that is being referred to, involves the Court respecting the wishes of the legislature in a more general sense, particularly in specific contexts. That is part of the comity that will exist between the branches of government. The Court presumes that Parliament would not take steps to exclude the essential function of the courts. In the same way Parliament can presume that the Court will not exercise its jurisdiction in an inappropriate way. That comity between the branches of government is part of the inherent balance involved in the separation of powers and the rule of law.

[29]      When confirming that the Court had jurisdiction the make declarations of inconsistency, the Supreme Court indicated that jurisprudence would develop over the approach to be taken to the exercise of the discretion to grant relief by way of such a declaration.18 This was further referred to in Make It 16 Inc v Attorney-General where the Court considered that the factors advanced by the Attorney-General “… as to the need for restraint and comity are relevant to the exercise of the discretion to grant a declaration but are not a bar to engaging in any inquiry at all”.19 The Court concluded that there was no reason to decline to make a declaration in the circumstances of that case.

[30]      Whilst the discretion would usually be considered once a proceeding had been fully heard and all the facts and circumstances were apparent, it is not limited in this way. A Court can decline to consider exercising its discretion if it is apparent from the outset that embarking upon the inquiry would not be appropriate. Many of the factors advanced by the Attorney-General as contextual reasons in support of its argument

18     Attorney-General v Taylor, above n 10, at [70] and [121].

19     Make It 16 Inc v Attorney-General [2022] NZSC 134, [2022] 1 NZLR 683 at [30].

that Parliament had expressly excluded the jurisdiction of the Court are factors that support the Court declining to exercise the jurisdiction in this case.

[31]      Whilst there might be scope for arguing that the Act did not limit the right of access to the Court affirmed by s 27(3), including because it changed the substantive law rather than the ability to access the Court,20 its provisions on their face appear to do so. The definition of “historic claims” in s 14 includes claims at common law, arising out of aboriginal title, fiduciary duty or otherwise. They appear to exclude a civil claim in the courts. Previous decisions of the courts have accepted that Parliament can so remove the right of access to the court by such clear and unambiguous language.21 Ultimately, however, it is likely that the assessment of consistency will depend on justified limitation under s 5 of the NZBORA.

[32]      The s 5 assessment would involve a broad inquiry. There might be arguments that the curtailment of the right to bring proceedings in the Court was justified simply to give effect to the agreement to settle. But it is almost unavoidable that the inquiry would go beyond that. There were some participants, such as the applicant, who had claims, or potential claims, whose litigation was bought to an end even though they did not agree to the settlement. As the Attorney-General submitted a claim by claim approach to settlement of Treaty grievances has not been considered to be feasible, and collective settlements with groups based on shared whakapapa have been negotiated. So the argument would necessarily extend to whether ending their litigation was justified to bring finality to the claims of the collective groups, including whether what the Crown was giving as part of the final settlement was fair and reasonable in those circumstances. So it would open up not only issues between the Crown and the applicants, but also as between groups involved in the settlement. It is difficult to imagine that this proceeding could continue without these being central issues.

[33]      For that reason the merits of the settlement would be reopened, and re-litigated. That is inconsistent with what the Crown and the counter-parties intended by entering

20     The Attorney-General relied on Mangawhai Ratepayers and Residents Association Inc v Kaipara District Council [2015] NZCA 612, [2016] 2 NZLR 437 at [206].

21     See Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601, [2013] 2 NZLR 57 at [136]–[149]; De Bres v McCully [2004] 1 NZLR 828 (HC) at [22]–[24].

the settlement, and what Parliament intended by the legislation. It was intended to be a full and final settlement that was not to be re-litigated.

[34]      The nature of the inquiry would also potentially be very extensive. It may require evidence in relation to all the historic claims that were settled, and the adverse implications of them. The report of the Waitangi Tribunal evidences this.22 I am unclear whether the report would be able to be accepted as conclusive on the nature of the claims and the impacts of the breaches. The process that was followed to reach settlement, whether agreement was freely obtained, and the questions of negotiation mandate would also be open for assessment. So the potential magnitude of the inquiry is extensive.

[35]      Even after receiving all such evidence it would be difficult for the Court to reach conclusions. Assessing whether limitations on fundamental rights are demonstrably justified can involve social and political considerations. It may be that a margin for appreciation would be available to the Crown in making its assessments. But even allowing for this it would nevertheless be difficult for the Court to decide whether the removal of the right of access to the Court as part of the settlement of claims arising from historic breaches of Treaty obligations (and potentially legal rights) was demonstrably justified given what the Crown was giving in that settlement.

[36]      It is also to be noted that the Waitangi Tribunal, the expert body, has already effectively said that what the Crown provides by way of compensation in its Treaty settlements falls well short of the compensation that would be required to remedy the breaches.23 Whilst the Tribunal’s conclusions focused more on other settlements rather than the settlement in relation to the Ngāti Kahungunu’s claims, the views of the Tribunal are nevertheless clear. It may be doubted whether any conclusion of the Court over and above that already reached by the Tribunal would add much.

[37]      Moreover, as the Attorney-General submits, if the present settlement was to be the subject of this kind of scrutiny it would be difficult to see why all previous Treaty

22     Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010).

23     Waitangi Tribunal Determinations of the Tribunal Preliminary to Interim Recommendations under sections 8B and 8HC of the Treaty of Waitangi Act 1975 (Wai 863, 2020) at [157]–[203].

settlements could not be, including those that have been in place for many years. Even if only some settlements are to be subject to such judicial scrutiny how would the other older settlements then be viewed? Such implications further suggest that embarking upon the exercise at all is unwarranted.

[38]      It is also doubtful whether the decision of the Court would have any utility.24 The settlement has been reached, and implemented by the Act. A declaration of inconsistency is usually appropriate in circumstances where Parliament may further reflect on its enactment. This is now contemplated by ss 7A and 7B of the NZBORA. But that could not occur in the present case unless the whole settlement was renegotiated. As the Attorney-General submitted, this is recognised by parliamentary practice where there is a convention, reflected in Speaker’s Rulings, that it is not Parliament’s task to amend settlement terms agreed to in the proposed enactment unless the parties agree to vary their settlement.25

[39]      There is also a risk that allowing the declaration of inconsistency jurisdiction to still be exercised would bring the jurisdiction into disrepute. If the proceedings were to continue the Crown may well consider not seeking to justify any limit on the right of access to the Court under s 5 of the NZBORA. Such a stance might not be consistent with the expectations the Court would have of the Crown, but the Crown might feel that this unusual stance was not inappropriate, including because participating in the litigation was not consistent with the settlement that it had reached. It may not be appropriate to put the Crown in a position where it would need to consider such options, or to allow the declaration of inconsistency jurisdiction to be diminished in this way.

[40]      The applicant argues in response to these arguments that its focus is on its much narrower resumption application which the Supreme Court had held should continue, and which its right to pursue was removed.26 Given the Tribunal was exercising an adjudicative power I accept that access to it is arguably within s 27(3) of the

24     The utility of the relief is relevant to the discretion to grant relief, see Attorney-General v Taylor, above n 10, at [58].

25     Mary Harris and David Wilson (eds) McGee: Parliamentary Practice in New Zealand (4th ed, Auckland, 2017) at 441.

26     Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd, above n 1, at [163].

NZBORA. It is also true that the resumption claim was described as being almost unprecedented, and that the resumption jurisdiction has been infrequently used.27 But even though this is the focus of the applicant’s claim the wider considerations inevitably arise. If the legislation preventing that claim continuing is to be justified by the Crown under s 5 of the NZBORA the broader settlement would need to be considered. The applicant refers to other situations where live claims before the Courts have been preserved in settlement legislation.28 And it is true that Parliament does not conventionally legislate in relation to claims presently before the Court. But the existence of litigation could not reasonably be used as a reason why collective settlements could not be implemented, and neither could they continue in a way that would potentially lead to the settlement being undermined. I do not consider that the applicant’s claims are narrow, or that they could be addressed by a narrow inquiry.

[41]      For these reasons I conclude that the Court should not consider granting a declaration of inconsistency in the circumstances of this case, and that the proceedings should be dismissed. I do so under the inherent jurisdiction rather than under r 5.49.

[42]      A conclusion that Parliament has not excluded the jurisdiction of the Court, but that the Court should decline to exercise that jurisdiction is not a mere technicality. The fact that the Court will not consider granting a declaration of inconsistency for this Treaty settlement does not mean that it would not do so in future if there were very different circumstances. To take an extreme example, if such a “settlement” were imposed on claimants without any agreement having been reached, with the claims before the Tribunal/courts nevertheless brought to an end by legislation, the Court might consider exercising its jurisdiction to grant a declaration of inconsistency. That is not, of course, how Treaty settlements have been reached and implemented, although there have been debates about the level of agreement to the settlement that must be evidenced. But it is necessary for the rule of law that the Court reserve the potential for it to exercise jurisdiction even if it is unlikely that circumstances will arise justifying it to be exercised in this kind of case.

27 At [82].

28     See Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Māui Claims Settlement Act 2014, s 25(6).

Conclusion

[43]      For the above reasons I accept that the Court should not exercise its jurisdiction to grant a declaration of inconsistency in these proceedings, and that the proceeding should be dismissed.

[44]      The Attorney-General will likely be entitled to costs on a 2B basis. If costs cannot be agreed I will receive memorandum from the Attorney-General (no longer than five pages plus a schedule), to be responded to by the applicant within 10 working days (no more than five pages plus a schedule).

Cooke J

Solicitors:

Kāhui Legal, Wellington for the Applicant Crown Law, Wellington for the Respondent