Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd
[2022] NZSC 142
•7 December 2022
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 93/2021 [2022] NZSC 142 |
| BETWEEN | WAIRARAPA MOANA KI POUĀKANI INCORPORATION |
| AND | MERCURY NZ LIMITED |
| SC 127/2021 | ||
| BETWEEN | RYSHELL GRIGGS AND MARK CHAMBERLAIN (ON BEHALF OF NGĀI TŪMAPŪHIA-Ā-RANGI HAPŪ) | |
| AND | WAITANGI TRIBUNAL | |
| Hearing: | 9–10 February 2022 |
Court: | Winkelmann CJ, William Young, Glazebrook, O’Regan and Williams JJ |
Counsel: | P J Radich KC, M K Mahuika and T N Hauraki for Wairarapa Moana ki Pouākani Inc |
Judgment: | 7 December 2022 |
JUDGMENT OF THE COURT
AThe appeal by Wairarapa Moana ki Pouākani Inc in SC 93/2021 is allowed in part. The High Court’s ruling that the Waitangi Tribunal has no power to recommend resumption in favour of a claimant without mana whenua is set aside. The appeal is otherwise dismissed.
BThe appeal by Ryshell Griggs and Mark Chamberlain in SC 127/2021 and the cross-appeal by Mercury NZ Limited in SC 93/2021 are dismissed.
CIssues as to costs may be dealt with by memoranda if they are not otherwise agreed. Memoranda will be no longer than five pages and must be filed and served within 20 working days.
____________________________________________________________________
REASONS
| Para No | |
| Winkelmann CJ, Glazebrook and Williams JJ | [1] |
| William Young J | [166] |
| O’Regan J | [206] |
WINKELMANN CJ, GLAZEBROOK AND WILLIAMS JJ
(Given by Williams J)
Table of Contents
| Para No | |
| Introduction | [1] |
| The issues in this Court | [11] |
| Statutory context and background to the resumption regime | [14] |
| Waitangi Tribunal findings and Crown concessions on the Wairarapa historical claims | [25] |
| General findings (also of relevance to Ngāumu forest) | [25] |
| Pouākani land findings | [29] |
| Settlement negotiations follow, then stall, then resume again | [38] |
| Negotiations | [38] |
| Resumption applications and preliminary determinations | [40] |
| New settlement with Ngāti Kahungunu Settlement Trust | [44] |
| Claim settlement Bill | [45] |
| The Waitangi Tribunal’s preliminary determinations | [48] |
| Pouākani land determinations | [52] |
| Ngāumu forest determinations | [53] |
| The status of these ‘preliminary’ determinations | [56] |
| Issue one: the mootness issue | [58] |
| Issue two: the mana whenua issue | [60] |
| The High Court’s approach | [60] |
| The positions of the parties | [62] |
| Setting mana whenua in the wider context of tikanga and its evolution | [69] |
| Engaging tikanga processes to resolve resumption applications | [86] |
| Mana whenua and the Ngāumu forest | [92] |
| Conclusions on mana whenua | [95] |
| Issue three: the relevant prejudice issue | [96] |
| High Court | [97] |
| A comment on the nature of historical Treaty claims | [100] |
| The minority views on relevant prejudice | [101] |
| Issue four: the Crown’s interest liability issue | [107] |
| The background to, and overview of, the legislative scheme | [110] |
| The legislative scheme as to compensation | [115] |
| The compensation issues that arise in relation to the Ngāumu forest | [117] |
| The Tribunal and the High Court | [123] |
| Submissions | [125] |
| Our approach | [127] |
| Issue five: the standing issue | [140] |
| The issue | [140] |
| The legislative context | [142] |
| Mercury’s argument | [144] |
| The Tribunal and the High Court | [148] |
| Our approach | [153] |
| Conclusions | [159] |
| Result | [163] |
Introduction
These two appeals and one cross-appeal raise important issues for the application of the Waitangi Tribunal’s “resumption” jurisdiction.[1]
[1]Resumption is the term used to describe the Waitangi Tribunal’s power to, effectively, direct the return of certain categories of land subject to Treaty of Waitangi claims. Those categories are current or former state-owned enterprise land, Crown forest land and land belonging to tertiary education institutions. See below at n 16.
In 2010, the Waitangi Tribunal delivered its three-volume Wai 863 report into the historical claims of Ngāti Kahungunu and Rangitāne of the Wairarapa region (the Wai 863 report).[2] The Tribunal largely upheld those claims. Rangitāne has since settled.[3] What became the Ngāti Kahungunu ki Wairarapa Tāmaki Nui‑ā-Rua Settlement Trust (Ngāti Kahungunu Settlement Trust) claimed a mandate to represent all of Ngāti Kahungunu ki Wairarapa, engaged in negotiations with the Crown on their behalf, and eventually reached a settlement (in fact, two settlements, as we come to). But at the same time, two Ngāti Kahungunu ki Wairarapa-related entities applied to the Tribunal for resumption of certain land in which they claimed a particular interest.
[2]Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010) [Wai 863 Report].
[3]See below at n 33.
First, Wairarapa Moana ki Pouākani Inc (Wairarapa Moana) sought resumption of 787 acres located in the Central North Island on the southwest bank of the Waikato river that formerly comprised part of the much larger Pouākani No 2 block (the Pouākani land). Wairarapa Moana is a Māori incorporation operated under Part 13 of Te Ture Whenua Maori Act 1993.
The Pouākani land is the site of the Maraetai Power Station, now owned and operated by Mercury NZ Ltd (Mercury). As at October 2018, it was valued at more than $600 million. The Pouākani land is not within the rohe of Ngāti Kahungunu ki Wairarapa. Rather it is in the rohe of Raukawa and Ngāti Tūwharetoa. It was held by hapū of those iwi until the late 19th century when the Crown acquired it. In 1916, the Crown agreed with the traditional owners of Lake Wairarapa and Lake Ōnoke in southern Wairarapa to exchange title to those lakes for what became the Pouākani No 2 block. Wairarapa Moana owns what now remains of that block on behalf of its Ngāti Kahungunu shareholders.
The result of this complexity is that Wairarapa Moana’s application is opposed by Raukawa (whose position is supported by Ngāti Tūwharetoa),[4] Mercury and the Crown.
[4]In this context Raukawa is represented by the Raukawa Settlement Trust and Ngāti Tūwharetoa by Te Kotahitanga o Ngāti Tūwharetoa. A further element of complexity is that by joint memorandum dated 19 March 2020, the Pouākani Claims Trust advised that it now supports Wairarapa Moana’s application. The Trust was established following the settlement in 1999 of claims by descendants of the original Raukawa and Ngāti Tūwharetoa customary owners of the larger Pouākani block: see Pouakani Claims Settlement Act 2000).
Second, Ryshell Griggs and Mark Chamberlain sought resumption of 10,313.8 hectares of Crown forest licence land located in coastal Wairarapa (the Ngāumu forest). They applied on behalf of Ngāi Tūmapūhia-ā-Rangi, a hapū of Ngāti Kahungunu with traditional rights (take tipuna)[5] in the Ngāumu forest (for ease of reference we refer to the applicants as Ngāi Tūmapūhia-ā-Rangi). The estimated potential value of the Ngāumu forest including compensation payable under the Crown Forest Assets Act 1989 is of the order of $290 million. The Crown opposed that application.
[5]See below at n 96.
In response to the applications by Wairarapa Moana and Ngāi Tūmapūhia‑ā‑Rangi, and to protect its position, the Ngāti Kahungunu Settlement Trust filed cross‑applications for resumption.
On 2 March 2020, and in response to Mercury’s application to adduce evidence and make submissions on the possible resumption of the Pouākani land, the Tribunal determined that it was precluded from hearing from Mercury by s 8C of the Treaty of Waitangi Act 1975.[6]
[6]Waitangi Tribunal Memorandum-Directions of Judge C M Wainwright Concerning Application to be Heard from Mercury NZ Limited (Wai 863, 2020).
On 24 March 2020, the Tribunal delivered certain “preliminary determinations” on the substantive resumption applications.[7] These determinations were issued as part of a continuing “iterative process” of engagement with claimants, the Crown and other affected parties. The Tribunal indicated that it was minded to grant resumption of the Pouākani land and the Ngāumu forest but not to either Wairarapa Moana or Ngāi Tūmapūhia-ā-Rangi. The Tribunal considered the Treaty‑breaching prejudice suffered by these smaller claimant groups was insufficient to justify resumption and would result in unfairness to other claimants who would not benefit. Rather, prejudice suffered on an iwi-wide scale and in relation to the entire tribal estate, would provide the justification. Identifying a recipient capable of bearing that wider Ngāti Kahungunu ki Wairarapa mandate would be a matter for further hearings and consideration, although the Tribunal did not discount the possibility that the Ngāti Kahungunu Settlement Trust may eventually be found to be an appropriate recipient.
[7]Waitangi Tribunal Determinations of the Tribunal Preliminary to Interim Recommendations Under Section 8B and 8HC of the Treaty of Waitangi Act 1975 (Wai 863, 2020) [Preliminary Determinations].
Mercury then sought judicial review of the Tribunal’s standing determination, and the Crown and Raukawa (the last-mentioned again supported by Ngāti Tūwharetoa) sought judicial review of the Tribunal’s preliminary determinations. As we come to, the High Court dismissed Mercury’s challenge but granted the applications by the Crown and Raukawa and referred the determinations back to the Tribunal for reconsideration.[8] This Court then granted the appellants’ applications for leave to appeal directly to this Court and Mercury’s application for leave to cross-appeal on the standing question.[9] Raukawa opposes Wairarapa Moana’s appeal. The Ngāti Kahungunu Settlement Trust meanwhile takes a neutral position in relation to the appeals, but (pending implementation of its settlement with the Crown) the Trust’s cross-applications remain on foot.
The issues in this Court
[8]Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 (Cooke J) [HC judgment] at [6(a)].
[9]Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2021] NZSC 134; and Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2021] NZSC 183.
In broad terms, the issues arising in these appeals and our responses to them may be summarised as follows:
(a)Does the Tribunal’s determination (albeit preliminary) that Wairarapa Moana is not a suitable recipient for resumption of the Pouākani land, render its appeal moot? (The mootness issue.)
We have found that the Tribunal’s preliminary determination as to the suitability of Wairarapa Moana as a recipient of the Pouākani land was not final and may be revisited in the Tribunal’s ongoing iterative process. The appeal is therefore not moot.
(b)Does the fact that Ngāti Kahungunu ki Wairarapa lacks mana whenua in relation to the Pouākani land count decisively against resumption in favour of any Ngāti Kahungunu interests, however configured? (The mana whenua issue.)
We have found that although mana whenua is a very important principle of tikanga, Ngāti Kahungunu’s lack of it at Pouākani is not inherently disqualifying.
(c)What historical Treaty prejudice is relevant to the exercise of the Tribunal’s resumption jurisdiction? (The relevant prejudice issue.)
Because this issue was not the subject of appeal (or at least was not directly so), we have made no final determination on it, but in light of the potential importance of the issue for future resumption cases and the narrower construction of the relevant provision which is favoured by William Young J, we consider it appropriate to comment, albeit preliminarily. We have identified certain matters of background and procedure in relation to historical Treaty claims generally that may not have been brought to the High Court’s attention.
(d)Did the Tribunal take into account all relevant matters when it determined (for the purposes of the Crown’s interest liability) that the post-1992 delay in resolving the Ngāumu forest claim was entirely attributable to the Crown? (The Crown’s interest liability issue.)
We have found, consistently with the High Court’s view, that the Tribunal did not consider all relevant matters.
(e)Did the Tribunal correctly apply s 8C of the Treaty of Waitangi Act when it refused to hear from Mercury in the Pouākani land application? (The standing issue.)
We have found, consistently with the High Court’s view, that Mercury does not have standing in the Waitangi Tribunal.
These issues raise complex questions of fact and law. A reasonable appreciation of the context in which they arise is required. We therefore set out the various relevant layers of background and we must (unfortunately) do so at some length. We first discuss the statutory context and background to the resumption regime. Second, we summarise the Tribunal’s 2010 historical findings in relation to the Ngāti Kahungunu ki Wairarapa claims. Third, we describe the negotiations that followed between the Crown and what became the Ngāti Kahungunu Settlement Trust. These led to a settlement this year, albeit one that is disputed by the appellants. Fourth, we summarise relevant details of the Tribunal’s preliminary determinations in relation to the resumption applications.
We make a general comment that, in the dissenting reasons of William Young J, he characterises our reasons in a number of different ways. While we have responded to some of these, our failure to respond to the others should not be taken as an indication that we accept his characterisation. Our reasons should be read in their own terms and mean what they say.
Statutory context and background to the resumption regime
Section 5(1) of the Treaty of Waitangi Act lists the functions of the Tribunal. The relevant function is contained in s 5(1)(a) and is stated in general terms:
… to inquire into and make recommendations upon, in accordance with this Act, any claim submitted to the Tribunal under section 6:
…
The other functions referred to in s 5 relate to the Tribunal’s power to exclude resumable land from liability to resumption and its advisory role to Parliament in relation to the Treaty-consistency of any Bill before the House.
Insofar as historical claims such as those the subject of these proceedings are concerned, s 6 relevantly provides:
6 Jurisdiction of Tribunal to consider claims
(1) Where any Maori claims that he or she, or any group of Maoris of which he or she is a member, is or is likely to be prejudicially affected—
(a)by ... any Act (whether or not still in force), passed at any time on or after 6 February 1840; or
...
(c) by any policy or practice (whether or not still in force) adopted by or on behalf of the Crown …; or
(d) by any act done or omitted at any time on or after 6 February 1840 …,—
and that the ordinance or Act … or the policy or practice, or the act or omission, was … inconsistent with the principles of the Treaty, he or she may submit that claim to the Tribunal under this section.
…
(3) If the Tribunal finds that any claim submitted to it under this section is well-founded it may, if it thinks fit having regard to all the circumstances of the case, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.
The Tribunal’s jurisdiction in relation to historical Treaty claims is unique in New Zealand’s legal and constitutional framework. It inquires into the Treaty‑consistency of actions and policies of the Crown and Acts of the legislature, as well as failures to act, develop policy or enact legislation — all from 1840. Its yardstick is the “principles” of the Treaty — an acknowledgement that the texts in Māori and English “differ”, and that the Treaty must speak relevantly in today’s world.[10] It is a standing Commission of Inquiry with the power to undertake or commission its own research and to adopt “such aspects of te kawa o te marae” in its procedures as it thinks appropriate.[11] It comprises judges of the Māori Land Court and up to 20 other members.[12] Membership composition is intended to be both knowledgeable in the matters that come before it and reflective of the “partnership between the 2 parties to the Treaty”.[13]
[10]Treaty of Waitangi Act 1975, preamble. The Tribunal is encouraged to make recommendations that facilitate the “practical application” of Treaty principles.
[11]Schedule 2 cls 5(9), 5A and 8.
[12]Section 4.
[13]Section 4(2A)(a).
Historical claims are complex. They relate to whole districts and cover a century and a half of interaction between Māori and the Crown. No less complex is the requirement to engage with contemporary claimant communities, often at different stages of readiness and recovery. These realities call for deep expertise and a willingness to be flexible.
As the Wai 863 report demonstrates, the Tribunal takes a district‑by‑district approach. That is, it consolidates the multiple claims of iwi, hapū, whānau and individuals in a particular district into a single historical inquiry and receives evidence and submissions from claimants and the Crown in a staged process of hearings over the course of a year or (usually) more. It then reports its findings about the history of engagement between iwi and hapū and the Crown and settlers in the district. In the introduction to its Wai 863 report, the Wairarapa Tribunal put it this way:[14]
In the Wairarapa ki Tararua inquiry district, there was a transition over a remarkably short period from Māori being the people with authority over their whole physical environment (volume I: The People and the Land), to a situation in the present where they own very little land and exercise virtually no authority over the circumstances that define their lives and environment (volume III: Powerlessness and Displacement). In between were several decades that we chronicle in volume II: The Struggle for Control.
[14]Wai 863 Report, above n 2, at xlix–l.
This process of seeking reconciliation through evidential inquiry supported by expert membership and inquisitorial procedures all explain why the Tribunal’s remedial powers are generally recommendatory.
There are partial exceptions to this in relation to Crown forest, tertiary education and state-owned enterprise land. These resulted from litigation between the Crown and Māori over the impact on Treaty claims of a proposal in 1986 to transfer certain Crown lands to independent state-owned enterprises. Section 9 of the State‑Owned Enterprises Act 1986 (the 1986 Act) was engaged. It provides:
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.
In New Zealand Maori Council v Attorney-General (the Lands case), the Court of Appeal declared that:[15]
… the transfer of assets to State enterprises without establishing any system to consider in relation to particular assets or particular categories of assets whether such transfer would be inconsistent with the principles of the Treaty of Waitangi would be unlawful.
[15]New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 666 per Cooke P (the Lands case).
As a result of that judgment and further negotiations between the parties, an agreement was reached, and the 1986 Act and the Treaty of Waitangi Act were amended to provide for a system of memorialising land transferred to state enterprises and for the Tribunal to have the power to compel the Crown (by binding “recommendation”) to resume ownership of such land for return to Māori. As noted, this power is generally referred to as the Tribunal’s resumption power.[16] This Court in Haronga v Waitangi Tribunal described the resumption power vested in the Tribunal as “adjudicatory”.[17]
[16]Treaty of Waitangi (State Enterprises) Act 1988 introduced ss 8A–8H of the Treaty of Waitangi Act and ss 27–27D of the State-Owned Enterprises Act 1986 Act [the 1986 Act] to give effect to the agreement reached. Section 27C(1) of the 1986 Act refers to the Crown obligation to resume the land pursuant to the Public Works Act 1981 for the purpose of return to claimants. We discuss the amendments in relation to Crown forest lands in the context of our discussion of the Ngāumu forest land application.
[17]Haronga v Waitangi Tribunal [2011] NZSC 53, [2012] 2 NZLR 53 at [88] per Elias CJ, Blanchard, Tipping and McGrath JJ.
We will return below to other provisions enacted following the Lands case where relevant to the Mercury appeal and New Zealand Maori Council v Attorney‑General (the Forests case)[18] where relevant to the Ngāumu forest, but for present purposes s 8A(2) and (3) of the Treaty of Waitangi Act provide the relevant power:
[18]New Zealand Maori Council v Attorney-General [1989] 2 NZLR 142 (CA).
(2)… where a claim submitted to the Tribunal under section 6 relates in whole or in part to [memorialised] land or an interest in [such] land … the Tribunal may,—
(a)if it finds—
(i) that the claim is well-founded; and
(ii)that the action to be taken under section 6(3) to compensate for or remove the prejudice caused by the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission that was inconsistent with the principles of the Treaty, should include the return to Maori ownership of the whole or part of that land or of that interest in land,—
include in its recommendation under section 6(3), a recommendation that that land or that part of that land or that interest in land be returned to Maori ownership (which recommendation shall be on such terms and conditions as the Tribunal considers appropriate and shall identify the Maori or group of Maori to whom that land or that part of that land or that interest in land is to be returned); or
…
(3)In deciding whether to recommend the return to Maori ownership of any land or interest in land to which this section applies, the Tribunal shall not have regard to any changes that, since immediately before the date of the transfer of the land or interest in land from the Crown to a State enterprise, or an institution within the meaning of section 10(1) of the Education and Training Act 2020, have taken place in—
(a)the condition of the land or of the land in which the interest exists and any improvements to it; or
(b)its ownership or possession or any other interests in it.
…
In summary, the Tribunal’s resumption power is triggered if the Tribunal is satisfied that it has before it a well-founded claim that relates in whole or in part to land for which resumption is sought, and that compensation for, or removal of, the prejudice should include return of that land to Māori ownership (whether in whole or in part). In making its assessment, the Tribunal must ignore any improvements and alienations effected after the land is transferred to the state enterprise.
Waitangi Tribunal findings and Crown concessions on the Wairarapa historical claims
General findings (also of relevance to Ngāumu forest)
We turn now to sketch out in general terms the essential thrust of the Tribunal’s findings in its Wai 863 report in relation to the Wairarapa historical claims. These provide the factual foundation for the resumption applications and the settlement.
The Tribunal found that Crown’s native land purchasing policy and practice during the early colonial period (that is prior to removal in 1865 of the Crown monopsony[19]) was inconsistent with Treaty principles. It also found the Crown, in breach of the Treaty, failed to ensure the lands reserved for Māori from Crown purchases were sufficient to enable effective iwi participation in the new post-sale colonial economy. Further, the Crown’s ongoing acquisition of such reserves, even after they had been set aside for hapū, was in breach of the Treaty. The Tribunal also found that the Crown breached the Treaty and the relevant contractual obligations contained in the purchase deeds in its interpretation and management of a fund established pursuant to those deeds to comprise five per cent of receipts from the on-sale of certain Wairarapa Māori land for the benefit of Māori. Overall, the Tribunal found that the Crown’s policies in relation to land purchasing, native land title, and land development were the primary cause of the subsequent and current state of relative landlessness of Wairarapa iwi.
[19]Native Lands Act 1865, s 47.
Although the Tribunal did not refer specifically to the Ngāumu forest (which of course did not exist at the time the land was acquired), these findings related also to the lands underlying what is now Ngāumu forest.[20]
[20]See generally Wai 863 Report, above n 2, at chs 3A–3D and the maps of Crown purchases and native reserves between 1853–1865 at 129, 154 and 155.
The Tribunal recorded that during the course of hearings, the Crown conceded that its policies and practices in relation to the setting aside and acquisition of native reserves, the administration of the five percent fund and the Crown’s role in the resulting landlessness of Wairarapa iwi breached Treaty principles.
Pouākani land findings
The history of the Pouākani land is complex, although, as will become clear, it does fit within the Tribunal’s general findings about the Crown’s native land acquisition policies and practices outlined above. But first it is necessary to sketch out the Tribunal’s Pouākani findings because these demonstrate how it came to be that Wairarapa Māori own Māori freehold land on the banks of the Waikato river, over 400 kilometres from their traditional home.
From the 1850s, land in the vicinity of Lakes Wairarapa and Ōnoke (in southern Wairarapa) was acquired by the Crown for Pākehā settlers, but the lakes themselves and some adjoining land initially remained in Māori ownership. In its natural state, Lake Ōnoke was separated from the sea by a narrow spit for a part of each year. With the spit intact and acting as a natural dam, water levels in the two lakes would rise by up to four metres, transforming them into a single expanse of water (hence “Wairarapa Moana”) and increasing the area of land under water from 24,000 to 52,500 acres. According to the Tribunal, this build up of flood waters tended to last for around six months.[21] The pressure of the accumulated water would eventually force a channel in the spit allowing the lakes to drain into Palliser Bay. The actual timing of these events varied according to rainfall and wind direction.[22] But the spit tended to open during the autumn rains and so triggered the eel migration (tuna heke) to the sea. Then, the channel would slowly close up again, setting the scene for the cycle to repeat. For the Māori owners, the lakes were a very valuable fishery in a general sense, but it was the culmination of this cycle in the tuna heke through the open channel that made the lakes “the single most valuable natural resource in the Wairarapa district”.[23]
[21]Wai 863 Report, above n 2, at 654.
[22]Te Maari v Matthews (1893) 12 NZLR 13 (CA) at 16.
[23]Wai 863 Report, above n 2, at 649.
As the land in the vicinity of the lakes came to be farmed intensively, disputes developed. Some of these disputes related to the delineation of the borders of the lakes (which defined how much land remained in Māori ownership). More significantly for the purposes of this judgment, the settlers wished to maintain a permanent channel to provide drainage from Lake Ōnoke to the sea; this to prevent seasonal inundation of what settlers, by then, saw as their land. The permanent opening of the channel was opposed by Wairarapa Māori because of the adverse impacts it would have on their fishery and other food gathering resources. The associated controversies resulted in petitions to Parliament, a Commission of Inquiry[24] and proceedings before the courts.[25]
[24]A report was presented to the Governor: Alexander Mackay “Claims of Natives to Wairarapa Lakes and Adjacent Lands” [1891] II AJHR G4.
[25]See, for example, Te Maari, above n 22.
In 1883, the Native Land Court awarded title in the lakes to 139 owners belonging to various Rangitāne and Ngāti Kahungunu hapū with customary rights.[26] The legal issue as to the entitlement to drain Lake Ōnoke was settled in 1893, when the Court of Appeal held (by a majority) that under the Public Works Act 1882 and the River Boards Act Amendment Act 1888, the South Wairarapa River Board had delegated power from the Wairarapa South County Council to maintain a permanent channel in the spit.[27] Counsel for the Māori appellants in that case presented a reasonably elaborate argument as to the effect of the Treaty of Waitangi and extant Māori fishing rights on the construction of the relevant empowering legislation. But this aspect of the case was only mentioned briefly in the judgment, which instead focused almost exclusively on the statutory scheme.
[26]See “Claims of Natives to Wairarapa Lakes and Adjacent Lands”, above n 24, at 60. See also Wai 863 Report, above n 2, at 653, where the Tribunal identifies the hapū which generally had rights in the area around the lakes as “Ngāi Te Aomataura, Ngāti Te Aokino, Ngāti Pakuahi, Ngāi Tūkoko, Ngāti Te Whakamana, Ngāti Rākaiwhakairi (Rākaiwakairi), Ngāti Komuka, Ngāti Hinetauira, Ngāti Rangitawhanga, Ngāti Te Hangarākau, Ngāi Tūtemiha, and Ngāti Rangiakau”. See further Te Whatahoro’s evidence to the “Claims of Natives to Wairarapa Lakes and Adjacent Lands”1891 Commission, above n 24, which listed hapū and their respective rangatira that owned land and fishing rights in the lake.
[27]Te Maari, above n 22.
In 1896, the Crown and the traditional owners resolved the dispute. Ownership of the lakes and some adjoining land was transferred to the Crown which, in return, paid over a monetary sum, and agreed to make ample reserves for the benefit of the Māori owners. The Māori text of the deed said that the Crown would reserve (rahui tia) suitable land or places (etahi waahi to tika) for the former owners of the lakes for their wellbeing (oranga) in the district or area (tenei takiwa) when land deemed appropriate for the purpose by the Crown came into its ownership.[28] That never happened.[29] Instead, and after a 20-year delay, the Crown agreed to transfer 30,486 acres of (what was, by then) Crown land at Pouākani to the former owners of the lakes or their successors. In 1916, the Native Land Court vested what became the Pouākani No 2 block in 230 Wairarapa Māori. The shareholders of Wairarapa Moana are the descendants of these owners.
[28]Wai 863 Report, above n 2, at 667. As recorded by the Waitangi Tribunal, the Māori text for this section of the agreement read (emphasis added):
… kaati ka ata rahui tia etahi waahi to tika hei oranga mo nga Maori whai tak? ni aua moana i roto i nga whenua e tai mai ana kite ringaringa o? karauna i raro i taua ota whakawhiti a etahi atu whenua maori ranei e tika mai ana ki ti kawanatanga i roto i tenei takiwa.
The phrase italicised means “within this district”. It is a description of the land the Crown promises to provide under the agreement. The Waitangi Tribunal interpreted this to mean in the environs of the lake. Curiously, there is no equivalent in the English text. These matters are discussed by the Tribunal at 673–675.
[29]The Tribunal found that this failure breached the Treaty causing Wairarapa Māori prejudice: at 709–710 and 716–717.
The Pouākani land is in the rohe of Raukawa and Ngāti Tūwharetoa. The circumstances in which it had been earlier acquired by the Crown from its Raukawa and Ngāti Tūwharetoa owners are discussed in the 1993 Pouākani Report of the Waitangi Tribunal,[30] and in the judgment of this Court in Paki v Attorney-General (No 2).[31] (For completeness, we note that the Tribunal found those circumstances were also attended by breaches of the Treaty).
[30]Waitangi Tribunal The Pouakani Report (Wai 33, 1993).
[31]Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67.
In any event, in 1916, when Wairarapa Māori received title, there was no practical access to the 30,486 acres. This only changed in the mid-1940s when the Government required a part of Pouākani No 2 block to facilitate construction of the Maraetai dam and a township at Mangakino to house construction workers. Work on this project was carried out from early 1943 for some 55 months before the owners were finally notified in the latter part of 1947, this despite the fact it was located on their land.
In 1949, the Crown compulsorily acquired 787 acres of the larger Pouākani No 2 block for what became the Maraetai Power Station complex. As well, an additional area of 684 acres required for the Mangakino township was compulsorily leased from the owners at a rental set by the Māori Land Court. In its 2010 Report, the Tribunal concluded that the Crown had breached Treaty principles in relation to the original lakes-for-land exchange, the compulsory acquisition of the Pouākani land and the associated Mangakino leases.
The Tribunal recorded the Crown’s concessions in relation to Pouākani, offered during the course of hearings, as follows:[32]
The Crown acknowledges that its accumulated acts and omissions in relation to the Lakes agreement constitute a breach of the Treaty and its principles. It also acknowledges that its failure to inform Māori and discuss the proposed taking of Pouākani prior to the Crown’s entry on to the land and the construction of a number of structures on that land constitutes another breach.
Settlement negotiations follow, then stall, then resume again
Negotiations
[32]Wai 863 Report, above n 2, at 1057 (footnote omitted).
Once the Tribunal reported on the Wairarapa historical claims, what later became the Ngāti Kahungunu Settlement Trust was established to advance discussions with the Crown over settlement of the Kahungunu-related claims. In November 2012, the Crown accepted the mandate of that Trust to settle the Ngāti Kahungunu ki Wairarapa claims on behalf of all Ngāti Kahungunu claimants.[33] The Crown and the Ngāti Kahungunu Settlement Trust reached an agreement in principle on 7 May 2016 and initialled a formal deed of settlement on 22 March 2018. The deed was then ratified by vote of the registered beneficiaries of the Trust in a process undertaken between September and November 2018.[34]
[33]Rangitāne negotiated and settled separately, ratifying a deed of settlement with the Crown by iwi wide vote in August 2016. Settlement legislation was enacted a year later: Rangitāne Tū Mai Rā (Wairarapa Tamaki nui-ā-Rua) Claims Settlement Act 2017.
[34]There are about 8565 registered beneficiaries of the Ngāti Kahungunu Settlement Trust: Preliminary Determinations, above n 7, at [294]. 33 per cent of beneficiaries voted, and of those, 72 per cent were in favour.
The settlement was valued at $93 million and included 70 per cent of Ngāumu Forest (the other 30 per cent had been included in the Rangitāne settlement). No Pouākani land was included by way of relief in the settlement. It was further agreed that the jurisdiction of the Tribunal to consider the extant resumption applications would be removed by legislation.
Resumption applications and preliminary determinations
Meanwhile, Wairarapa Moana had been trying since 2015 to convince the Crown to negotiate with it separately over the Pouākani claim. But the Crown considered the appropriate mandate lay with the Ngāti Kahungunu Settlement Trust, not Wairarapa Moana, and would not engage. On 10 February 2017, Wairarapa Moana applied for resumption of the Pouākani land pursuant to s 8A of the Treaty of Waitangi Act. On 24 March 2018 (two days after the Crown and the Ngāti Kahungunu Settlement Trust initialled the settlement deed), Wairarapa Moana held a special general meeting at which the shareholders in attendance voted down a proposed resolution to withdraw the incorporation’s resumption application.[35]
[35]81.71 per cent of the shareholders’ in attendance voted down the proposed resolution.
On 30 July 2018, Ms Griggs and Mr Chamberlain applied pursuant to s 8HB of the Treaty of Waitangi Act, for binding recommendations in relation to Ngāumu Forest. They did so on behalf of Ngāi Tūmapūhia-ā-Rangi, a hapū of Ngāti Kahungunu with customary rights in the Ngāumu forest land. There is no suggestion that Ms Griggs and Mr Chamberlain do not speak for the hapū.
In response to these developments, the Crown advised the Ngāti Kahungunu Settlement Trust that it would not finally sign and implement the Deed of Settlement while the resumption applications remained on foot. The Ngāti Kahungunu Settlement Trust, wishing to protect its position, then made what were described as “defensive” resumption applications mirroring those of Wairarapa Moana and Ngāi Tūmapūhia‑ā‑Rangi.
The Tribunal commenced hearings in relation to the resumption applications in May 2019 and issued its preliminary determinations in March 2020. As noted, the Tribunal indicated resumption would be a likely outcome of its ongoing iterative process, but appropriate recipients had yet to be identified. These determinations have led to the current judicial review proceedings.
New settlement with Ngāti Kahungunu Settlement Trust
Following delivery of the subsequent High Court decision at the end of March 2021, the Crown and the Ngāti Kahungunu Settlement Trust re-engaged. A new deed of settlement was negotiated. It involved an increase in quantum from $93 million to $115 million and the offer of a further $5 million for enhancement of the lakes environment. The deed was ratified by Settlement Trust beneficiaries in a vote.[36] The position with respect to the Pouākani land and Ngāumu forest remained unchanged. The deed purports to settle all claims of Ngāti Kahungunu ki Wairarapa, including those of Wairarapa Moana and Ngāi Tūmapūhia-ā-Rangi, and accepts that the Tribunal’s jurisdiction to entertain the resumption applications will be removed. Relevant Ministers and trustees signed the new deed on 29 October 2021.[37]
Claim settlement Bill
[36]31 per cent of the Ngāti Kahungunu Settlement Trust members voted, with 68 per cent in favour of the settlement; see Waitangi Tribunal Decision on Application for an Urgent Hearing (Wai 3058 and Wai 429, October 2021) at [12(h)]. The Waitangi Tribunal found that this “ratification” was not, in fact, sufficient ratification: Waitangi Tribunal Decision of the Tribunal (Wai 3058, Wai 429 and Wai 3068, November 2021) at [148]. This is, of course, not before us.
[37]The Waitangi Tribunal found that the Settlement Trust had no mandate for the claimants in Wai 429 (Ngāi Tūmapūhia-ā-Rangi) and Wai 3058/85 (Wairarapa Moana): Decision of the Tribunal, above n 36. This is also not before us.
Ratifying settlement legislation was introduced in the House on 4 February 2022. The legislation, if enacted would put an end to these proceedings. In light of this we address two issues for the purposes of clarification only.
The first is this. At an earlier stage in this process, Mercury submitted in opposition to Wairarapa Moana’s application for leave to appeal directly to this Court, that the application itself demonstrated this proceeding was, in substance, an attempt to interfere inappropriately in Parliamentary proceedings. We disagreed. Elias CJ’s discussion in Ngāti Whātua Ōrākei Trust v Attorney-General of the 1976 decision of Beattie J in Fitzgerald v Muldoon, demonstrates why.[38] As Elias CJ noted, the plaintiff sought injunctions and mandamus against the Prime Minister whose purported suspension of payments to the New Zealand superannuation fund was argued to be unlawful. An application for priority fixture was made to ensure the matter could be heard before Parliament’s next sitting. The Crown opposed on the basis that retrospective legislation would be introduced into the House to deal with the issue. The Crown argued that the plaintiff was simply trying to “beat Parliament to the draw”.[39] Beattie J granted the priority fixture. He considered that the proceedings were brought to require the Prime Minister to comply with existing legislation. The plaintiff was entitled to have his case heard with expedition. After discussing that decision, Elias CJ said this:
[119] I do not think the circumstance that the plaintiff in Fitzgerald v Muldoon sought to uphold statutory obligations is reason not to apply the same approach. Until Parliament changes the law, the courts must be open to citizens who seek to have their existing legal interests and rights determined. The rights recognised in s 27 of the New Zealand Bill of Rights Act 1990 to natural justice and to bring proceedings against the Crown on equal terms would not otherwise be fulfilled. Parliamentary freedom of debate and in its proceedings is unaffected by the judicial responsibility to hear and determine rights and interests protected by law.
[38]See Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at [117]–[118] per Elias CJ.
[39]At [117] referring to the comments of Beattie J in Fitzgerald v Muldoon SC Wellington A118/76, 19 May 1976 at 3.
Second, these appeals do not put the claims settlement Bill in issue in any way. Rather, they raise orthodox claims of statutory or other right: the right to have extant applications for resumption determined according to law, and the related right to test the implications of tikanga considerations in that context. They therefore involve no conflict with the terms of s 11 of the Parliamentary Privilege Act 2014, nor any breach of the common law principle of non-interference.[40] A passage from the Court of Appeal decision in Ngāti Mutunga O Wharekauri Asset Holding Company Ltd v Attorney-General, delivered sometime after this Court’s decision in Ngāti Whātua Ōrākei Trust, captures the essential points:[41]
[33] ... the reasoning of both the majority and Elias CJ in Ngāti Whātua is consistent with the proposition that the courts may make declarations of existing right, interest or entitlement whether or not there is a bill before the House which may affect them in some way. Such relief is not “in relation to parliamentary proceedings”, in the sense provided for by ... the Parliamentary Privilege Act. It does not amount to an interference by the courts in Parliament’s “proper sphere of influence and privileges” because such declarations would be about existing rights, interests or entitlements, and not what Parliament may be proposing to do in relation to them. The terms of s 4(1)(b) of the Parliamentary Privilege Act are apposite here. Comity is a principle of “mutual respect and restraint” between the legislative and judicial branches as to their respective constitutional functions. It is the function of courts to adjudicate on rights and entitlements.
[34] In very different circumstances, the English courts have adopted a similar approach. For example, in Willow Wren Canal Carrying Co Ltd v British Transport Commission, the English High Court refused to stay a proceeding commenced by a canal barge company against the canal owner, despite the fact that there was a bill before the House relieving the owner of the very duties upon which the plaintiff based its suit. The canal owner argued that even if the injunction sought were granted, the Judge would be required to suspend it until the legislative process had taken its course. Upjohn J said this:
A preliminary objection is taken to [the defendant’s application for stay], which is fatal to that application; and it is that, sitting in this court, it is my duty to see that litigants have their cases tried, as they are entitled to, and that I cannot take into account the possible effect of some Bill now before Parliament which, if passed into law in its present form, may have some effect upon the rights of the parties. That seems to me to be a correct formulation of the law. This court is not concerned with what Parliament may think it wise to do in relation to the rights of parties, but the plaintiffs are entitled to come to this court and say, “In the normal course of events our action will very soon be ripe for hearing. We desire that the court should hear it.”
Of course, if subsequently to that Parliament in its wisdom by some enactment affects the rights of the parties even to the extent of modifying or abrogating the effects of any judgment which the plaintiffs may be fortunate enough to obtain, no one doubts the right and power of Parliament to do so. But it is plain that it is not right for this court either now or at the hearing to take into account the possible effect of some Bill at present before Parliament which, so far as this Court is concerned, may never be passed into law at all, or, if passed into law, may ultimately contain provisions which do not affect the rights of the parties before the court at all. In other words, it is a matter of speculation on which this court will not embark as to whether a Bill at present before Parliament will be passed into law in its present form.
[35] The Judge went on to note that “[a]uthority is not wanting for that proposition”.
The Waitangi Tribunal’s preliminary determinations
[40]See Ngāti Whātua Ōrākei Trust, above n 38, at [46]; and Ngāti Mutunga O Wharekauri Asset Holding Company Ltd v Attorney-General [2020] NZCA 2, [2020] 3 NZLR 1 at [33]–[35]. See also Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 WLR 213 (CCA) at 215–216. Note also Fitzgerald v Muldoon, above n 39.
[41]Ngāti Mutunga O Wharekauri Asset Holding Company Ltd, above n 40 (footnotes omitted).
We return now to address the Tribunal’s substantive preliminary determinations of 24 March 2020 in a little more detail and with particular reference to the issues arising in these appeals.
Between May and December 2019, the Tribunal heard evidence and submissions in what it described as an iterative process for determining whether to recommend the return of the Pouākani and Ngāumu forest land. The Tribunal explained what it meant by this:[42]
Google informs us that an iterative process is one that ‘should come closer to the desired result as the number of iterations increases’. The term is usually used in a mathematical context, but we can usefully borrow it to describe a means of allowing interactions between parties and the tribunal about the tribunal’s proposals for the implementation of its binding recommendations to arrive at an ultimate result that is not only legal/tika but also understood, accepted, and practical.
[42]Waitangi Tribunal Memorandum-Directions Setting Out Matters That Parties Should Take Into Account In Preparing Closing Submissions (Wai 863, 29 August 2019) at [41].
Incorporated in this is the idea that as the process continues, some possible outcomes fall away so as to provide scope for greater focus on those that remain.
Importantly, for the issues arising in this appeal, the Tribunal determined that the prejudice suffered by Ngāti Kahungunu ki Wairarapa as a result of the Crown’s Treaty breaches justified the making of binding recommendations in relation both to the Pouākani land and the Ngāumu forest land.[43]
Pouākani land determinations
[43]Preliminary Determinations, above n 7, at [122]–[123] and [215].
In relation to the Pouākani land specifically:
(a)The Tribunal considered that Treaty breaches in relation to the subject land were not sufficient to justify resumption of land and fixtures worth more than $600 million. But, in the Tribunal’s view, it was also entitled to factor into its assessment two additional sources of Treaty prejudice: first, the prejudice arising from the Crown’s acquisition of Wairarapa Moana, and second, the wider tribal narrative of dispossession and landlessness affecting all Ngāti Kahungunu ki Wairarapa, whether or not it related to Pouākani or the lakes. On this broader approach, resumption was proportionate to the prejudice.[44]
(b)The Tribunal felt that the scheme of s 8A of the Treaty of Waitangi Act mandated this approach. In particular, the requirements of s 8A(2) could be satisfied because the wider Ngāti Kahungunu ki Wairarapa claims of Crown driven landlessness did relate “in whole or in part” to the Pouākani land,[45] and vesting such land in a tribally mandated body did involve “return [of the land] to Maori ownership” as required by that section.[46] Further, the Treaty context required the Tribunal to construe the statutory language in a “broad and unquibbling” way, while the negotiated background to the enactment suggested a “looser construction” was appropriate.[47]
(c)Since, the Tribunal then considered, the justification for resumption includes losses on a tribal scale, the appropriate recipient should carry a tribal mandate. Wairarapa Moana shareholders, by contrast, had only “private rights”.[48] Further, their shares were unequal. For both reasons, Wairarapa Moana shares ought not to form the basis for Treaty-based compensation.[49] It followed that Wairarapa Moana was not an appropriate recipient.[50]
(d)Finally, the fact that Raukawa and Ngāti Tūwharetoa held mana whenua over the Pouākani land did not, in the Tribunal’s view, preclude a recommendation for resumption in favour of Ngāti Kahungunu.[51] There were other relevant tikanga that favoured resumption including hara, muru, utu and ea. Instead, judgement fell to be exercised in a “tikanga-compromised world” in which the best had to be made of the sui generis circumstances of this case.[52] Relevant factors included that the Tribunal could not recommend resumption to mana whenua iwi — all of whose claims had already been settled — and that Ngāti Kahungunu had no option 100 years ago but to take the land on offer.[53]
Ngāumu forest determinations
[44]At [278].
[45]At [122].
[46]At [266].
[47]At [121], referring to Tainui Maori Trust Board v Attorney-General [1989] 2 NZLR 513 (CA) at 518.
[48]Preliminary Determinations, above n 7, at [278].
[49]At [278]–[279].
[50]At [282].
[51]At [259].
[52]At [261].
[53]At [237]–[243] and [259]–[261].
In relation to the Ngāumu forest land, the preliminary determinations addressed two discrete issues: the appropriateness of awarding the land to a hapū, rather than the wider iwi (albeit, a hapū with primary rights in the land); and the appropriate approach to calculating the interest component of monetary compensation that must accompany resumption of Crown forest land.
On the hapū recipient question, the Tribunal took a similar approach to that taken in relation to Pouākani. First, the wider Ngāti Kahungunu claims did “relate to” Ngāumu forest in a general sense.[54] Second, the Tribunal accepted that returning the land to Ngāi Tūmapūhia-ā-Rangi might be proportionate, but since any return would also, and automatically, involve the payment of significant monetary compensation, this would only be proportionate if the recipient represented those who had been subjected to Treaty-based prejudice on a wider scale.[55] The Tribunal noted, in any event, that other hapū also had interests in Ngāumu forest.[56]
[54]At [115].
[55]At [283].
[56]At [287]. Other primary interests are with Ngāti Hinewaka and Te Hika o Pāpāuma.
As to the calculation of interest, the question was when the Crown became liable to pay interest on compensation payable under the Crown Forest Assets Act. That Act (which we discuss in detail below) provides a minimum four-year interest holiday from the date on which the relevant claim was filed.[57] In the case of the Ngāumu forest, that four-year period ended in October 1992. The interest holiday may, however, be extended if delay in resolving the claim was not within the Crown’s control. The Tribunal found that delay in relation to return of the Ngāumu forest (30 years) was attributable entirely to the Crown. Its reasons were put in the following terms:[58]
306. The Crown made no suggestion of claimant delay. However, it submitted it was prevented, by reasons beyond its control, from carrying out some of its obligations under the Forestry Agreement. One obligation is to use ‘best endeavours’ to enable the Waitangi Tribunal to identify and process all claims, and participate in relevant Tribunal processes concerning the licensed lands. Here, the Crown submitted it has done its best but the scheduling of the Tribunal’s work and interruptions caused by ongoing litigation have been beyond its control.
307. For this reason, the Crown argued that the Tribunal should extend the four-year period when determining how compensation should be calculated, and said there are ‘no grounds to penalise the Crown for the time the litigation has taken.’
308. The Ngāti Kahungunu ki Wairarapa Tamaki nui-ā-Rua Settlement Trust countered this, saying:
386. In fact, the Crown has taken steps to frustrate claimants’ ability to have their claims processes within the shortest reasonable period. Mr Fraser agreed that generally the Crown will not continue to negotiate with groups where they begin to litigate against the Crown, including through bringing resumption applications.
387. It is apparent that the Crown made a policy decision to push claimants toward negotiated resolution of claims. That was the Crown’s choice. It was in a way the Crown’s gamble: that it could negotiate settlements before a successful resumption application. The compensation has become substantial in the time since, but the Crown would have been aware of that.
309. We agree with these submissions. The Crown has been in charge of the whole Treaty settlement process. In a number of cases, it has settled with parties without waiting for the Tribunal to conduct an inquiry. Moreover, the funding of the Tribunal was in the Crown’s hands. Had the Crown wanted the inquiry process to go faster, it could have resourced the Tribunal accordingly. Therefore, we do not accept that there were reasons beyond the Crown’s control that led to delay.
310. We find that the reasons for extending the four-year period in clause 6 do not apply here. The effect of this decision is for the higher interest rate prescribed in clause 5((b) to commence from 28 October 1992 – four years after 28 October 1988, when the claim was filed.
The status of these ‘preliminary’ determinations
[57]Crown Forest Assets Act, sch 1 cls 5–6.
[58]Preliminary Determinations, above n 7 (footnotes omitted).
The Tribunal concluded its preliminary determinations by making two potentially significant points. First, that there were further determinations to be made before the terms of any formal interim recommendations could be finalised. And second, that the determinations it had made were not necessarily final either:[59]
This preliminary determination by no means disposes of all the important matters we must decide, however. Nor would we say it is necessarily final. It expresses our formed views on key aspects of the exercise of discretion in section 8A and 8HB, but it remains possible that we may decide that nevertheless we should not make interim recommendations in the form we currently intend.
[59]At [316].
Further submissions would be sought in due course on a number of matters including the appropriate recipient entity on behalf of Ngāti Kahungunu ki Wairarapa for the Pouākani land and the Ngāumu forest land,[60] and the compensation issues arising from sch 1 of the Crown Forests Assets Act in relation to the Ngāumu forest land.[61]
Issue one: the mootness issue
[60]The Tribunal indicated that this could be the Ngāti Kahungunu Settlement Trust: Preliminary Determinations, above n 7, at [295]–[296].
[61]At [316].
For the Crown, Mr Heron KC argued that the Tribunal had already rejected Wairarapa Moana’s application on its merits and determined that return of the land would be disproportionate to the incorporation’s claims and the prejudice it suffered. That meant that Wairarapa Moana’s appeal was effectively moot.
We do not agree for three reasons. First, the Tribunal was clear that all of its determinations were preliminary and subject to review should the circumstances require.[62] Second, the legislation does not actually require an application.[63] Third, and perhaps most importantly, the High Court’s view was that the Tribunal impermissibly broadened the scope of qualifying Treaty prejudice. That finding has not been appealed.[64] Relevant prejudice is now somewhat more restricted in scope to the loss of the Wairarapa lakes, the Pouākani land swap and the compulsory acquisition of the Maraetai development site. On any view, this is a fundamentally different basis for decision than the iwi-wide approach preferred by the Tribunal. The Tribunal has not yet considered whether, despite its earlier view, resumption might still be a proportionate response to this somewhat narrower class of prejudice. Nor has it considered the downstream question of which group would best represent the descendants of those who suffered that more-specific prejudice. The Tribunal is bound therefore to consider the applications afresh. The application therefore remains on foot.
Issue two: the mana whenua issue
The High Court’s approach
[62]See above at [56]–[57].
[63]Haronga, above n 17, at [137(a)] per William Young J.
[64]We are not to be taken as necessarily accepting that this narrowing is the correct approach: see our discussion below at [98]–[100].
The starting point in the High Court’s view, is that the Tribunal is bound by tikanga and Treaty principles. The effect is that mana whenua will be fundamentally important in resumption applications. This, in turn means, firstly, that the resumption power exists primarily as a remedy for the Treaty-breaching loss of mana whenua over the land in question:[65]
The essence of the resumption jurisdiction is specific, and focuses on the Treaty breach associated with the loss of the mana whenua over the land in question, and the appropriateness of return of the land given that breach.
While the Tribunal may not have intended it, this could be read as an assertion that the Tribunal can put to one side mana whenua and make a resumption order without taking it into account.
Counsel for Wairarapa Moana argued that the situation was equivalent to a case where there are overlapping interests in land subject to a resumption application. In Haronga v Waitangi Tribunal, a majority of this Court said that such overlapping interests cannot be used as a reason for the Tribunal to decline to determine resumption claims.[164] I do not see that as analogous to the present situation. What this Court was dealing with in the Haronga case was the situation where two parties are seeking resumption. It does not address the present situation where Wairarapa Moana, as the party seeking resumption, has no mana whenua and the resumption is resisted by Raukawa, which does have mana whenua but which cannot make a claim in respect of the relevant land because it has settled its Treaty claims against the Crown.[165] It says nothing about the significance or otherwise of the resumption applicant having (or not having) mana whenua.
[164]Haronga v Waitangi Tribunal [2011] NZSC 53, [2012] 2 NZLR 53 at [106] per Elias CJ, Blanchard, Tipping and McGrath JJ.
[165]A point that was acknowledged by the Waitangi Tribunal: Preliminary Determinations, above n 155, at [259(d)]. The same applies to Ngāti Tūwharetoa. It was not represented at the hearing before us but we were told it supports the position of Raukawa. See Raukawa Claims Settlement Act 2014; and Ngāti Tūwharetoa Claims Settlement Act 2018.
I do not think that Wairarapa Moana’s arguments in relation to mana whenua properly characterise what the High Court Judge decided. He did not decide that the statute required the return of land to mana whenua (at least, not in the present context: his finding in relation to the relevant prejudice issue had that effect, but that is not before us). In effect, Wairarapa Moana is isolating the mana whenua finding from the relevant prejudice finding, challenging the former and seeking to uphold the latter. In relation to mana whenua, the High Court Judge’s findings were, as outlined before, that mana whenua was a very important consideration in the exercise of the power under s 8A. That is quite different from saying that s 8A does not permit the return of land to a party without mana whenua.
The High Court Judge’s concern with mana whenua related not to the breadth of the resumption power under s 8A, but rather to his conclusion that the Tribunal was required to apply tikanga and Treaty principles in exercising its functions. He saw the Tribunal’s observation that it was not disposed to let mana whenua arguments influence it as effectively asserting that the Tribunal was not going to observe tikanga. He described this as the Tribunal exercising its discretion “notwithstanding the tikanga relating to the land”.[166]
[166]HC judgment, above n 156, at [108] (emphasis in original).
The High Court Judge accepted that the position would be different if the Tribunal had considered that its proposed decision was consistent with tikanga, for example, if other principles such as ea prevailed over those of mana whenua as a matter of tikanga.[167] But he considered that was not the position. This was contested by Mr Mahuika for Wairarapa Moana. In fact the Tribunal observed that it was required to do its best in exercising its discretion under s 8A to assist the claimants to reach ea.[168]
[167]At [108].
[168]Preliminary Determinations, above n 155, at [237].
I accept that as the expert body, the Tribunal was entitled to place other aspects of tikanga ahead of mana whenua in the unusual circumstances before it. Despite the choice of words in its finding that it would not allow mana whenua to “influence” it, I think the better interpretation of the Tribunal’s decision is that it did take mana whenua into account, but decided that other concepts of tikanga were more important in this case. The extensive reasons the Tribunal gave for not letting mana whenua arguments influence its decision show that it did consider mana whenua arguments but found they were not controlling.
Raukawa argued that the Tribunal did not take into account the impact on Raukawa. It argued that requiring the Crown to transfer land over which Raukawa has mana whenua to another iwi or hapū would necessitate the Crown going back on the commitments it made to Raukawa in the Raukawa settlement, conflicts with the Crown’s obligation of active protection of Raukawa and could amount to a fresh breach of the Treaty in relation to Raukawa. Wairarapa Moana did not engage with these submissions in much depth, but the Tribunal will need to do so when it reconsiders its preliminary determinations.
I do not express a view on the majority’s observations about engaging tikanga processes to resolve resumption applications.[169] The majority discusses possible outcomes predicated on the possibility of some accommodation between Wairarapa Moana and/or Ngāti Kahungunu and mana whenua. In the Tribunal, the High Court and this Court, Wairarapa Moana has taken a strong adversarial stance against Raukawa, even to the extent of having it excluded as a party before the Tribunal.[170] At the hearing before us, Mr Finlayson KC for Raukawa described Wairarapa Moana’s approach as going out of its way to “freeze Raukawa out”. Wairarapa Moana argued strongly before the Tribunal that it did, in fact, have a mana whenua connection to the Pouākani land. The evidence before both the Tribunal and the High Court contradicted that and Wairarapa Moana does not now challenge the Tribunal’s finding described above at [217].
[169]Above at [86]–[91].
[170]Waitangi Tribunal Decision of the Tribunal on Entitlement of Settled Parties to Participate (Wai 863, 2018). This decision was reversed by the High Court in a judicial review proceeding commenced by Raukawa: see Raukawa Settlement Trust v Waitangi Tribunal [2019] NZHC 383, [2019] 3 NZLR 722.
In these circumstances, I prefer to address the judicial review issues arising from the case actually before us and not venture a view on a case that has not yet, and may never, come to pass. A number of possibilities for changes in position of the parties exist and I would leave it to the Tribunal to address them if and when they actually arise.
Issue three: the relevant prejudice issue
As noted by the majority, Wairarapa Moana’s argument avoided the relevant prejudice issue. No doubt Wairarapa Moana saw the High Court’s finding on that issue as helpful to it because it assists its argument that the Tribunal should reconsider its conclusion that the appropriate party to receive the Pouākani land on resumption was an entity representing all of Ngāti Kahungunu, not Wairarapa Moana. However, as mentioned earlier, that would assist Wairarapa Moana only if the Tribunal were to reverse its earlier conclusion that Wairarapa Moana’s claims in relation to the Pouākani land were such that resumption and return of the Pouākani land to Wairarapa Moana would be disproportionate.
I do not think that the majority’s analysis of the relevant prejudice issue could be interpreted as anything other than an indication that they consider the High Court decision on the relevant prejudice issue wrong.[171] I do not consider that appropriate in circumstances where those who would have argued in favour of the upholding of the High Court decision if called upon to do so did not have the chance to make submissions on the issue.
Issue four: interest liability and issue five: standing
[171]See the majority reasons above at [96]–[100].
As indicated earlier, I agree with the majority reasons on these issues.
Solicitors:
Kāhui Legal, Wellington for Wairarapa Moana ki Pouākani Inc
Chapman Tripp, Auckland for Mercury NZ Ltd
Crown Law Office, Wellington for Attorney‑General
Anderson Lloyd, Dunedin for Raukawa Settlement Trust
Dixon & Co Lawyers, Auckland for Ms Griggs and Mr Chamberlain
There have been many criticisms of the effects of the Native land laws. These include: the interpretation of customary rights to land, the early limitation of the number of owners who could appeal on a title (together with their ability to act as absolute owners rather than trustees for tribal land), the costs of the process, and its tendency to promote excessive sales and the fragmentation of remaining Māori holdings. The court system has been criticised by claimants and some historians for undermining the social structure of Māori society. These and other criticisms may prove valid when considering the operations of the Native Land Court system in particular districts. The long-term results of the system are clear. By the end of the 19th century, many hapū were left with insufficient lands for their subsistence and future development. Between 1865 and 1899, 11 million acres of Māori land in the North Island had been purchased by the Crown and European settlers.
...
The Crown acknowledges that the operation and impact of the Native land laws had a widespread and enduring impact upon Māori society. In cases where claimants can demonstrate a prejudicial impact in their rohe, the Crown will acknowledge, in the context of an agreed settlement, that it breached its responsibilities under the Treaty of Waitangi.
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