Watene v Minister in Charge of Treaty of Waitangi HC Wellington CP120/01

[2001] NZHC 370

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CP120/01

BETWEEN RUKUTAI WATENE and ANOR
First Plaintiff

AND AROHA HOUSTON
Second Plaintiff

AND TANIA GWEN TONGAAWHIKAU
Third Plaintiff

AND MARTIN TE PORE EDWARDS and ANOR
Fourth Plaintiff

AND DAVE NGAREWA
Fifth Plaintiff

AND TE WHETU NGERU
Sixth Plaintiff

AND THE MINISTER IN CHARGE OF TREATY OF WAITANGI
First Defendant

AND THE ATTORNEY-GENERAL On account of the Minister of Justice and the Office of Treaty Settlements
Second Defendant

AND THE QUEEN
Third Defendant

AND WAITANGI TRIBUNAL
Fourth Defendant

AND NGATI RUANUI MURU TE RAUPATU WORKING PARTY
Fifth Defendant

Hearing: 11 May 2001

Counsel: J M Dawson for the Plaintiffs
H M Carrad and K C Millard for the First, Second and Third Defendants
K Anderson for the Fourth Defendant
P J Radich. D W Tapsell and R E Brown for the Fifth Defendant

Judgment: 11 May 2001

ORAL JUDGMENT OF GODDARD J

[1] This is an expanded version of the oral decision I delivered at 5.00pm on Friday 11 May 2001.

[2] The plaintiffs have claims before the Waitangi Tribunal in which they seek to address the “prejudicial effect” of the Deed of Settlement which the Crown proposes signing with the Ngati Ruanui Muru me to Raupatu Working Party (“the Working Party”) tomorrow, Saturday 12 May 2001. The claims also seek to highlight the processes utilised by the Crown and the Working Party to achieve that Deed of Settlement, and seek to demonstrate that hapu interests have been “ousted in favour of the purported interests of the iwi as a whole” in the settlement.

[3] The plaintiffs have now filed proceedings in this Court also, in which they seek the following directions:

“A direction to the first to third defendants that the signing or confirmation of the proposed settlement deed ought to be deferred until:

(i) a system has been established to take into account, recognise and protect the hapu and their interests in the settlement;

(ii) after a process has been established for the creation of the governance entity and the governance entity is established pursuant to that process;

(iii) the Waitangi Tribunal has considered and reported on their application for urgency and on the claims lodged by the plaintiffs;

(iv) the Minister in charge of Treaty of Waitangi Negotiations has conducted further inquiries into allegations of conflict of interest in relation to relevant report of the Waitangi Tribunal.”

[4] In addition, a declaration or order that:

“(i) the Waitangi Tribunal . . . fix a date for the hearing of [their] applications for urgency;

(ii) the Waitanai Tribunal . . . hear the whole of [their] applications for urgency and claims without prior determination on the basis of a report on other claims involving different parties;

(iii) the Tribunal has jurisdiction to investigate and take into account matters of conflict of interest affecting the Tangahoe/Pakakohi report in considering (their) applications and claims.”

[5] Pending hearing and determination of the above directions and orders, the plaintiffs’ seek urgent interlocutory relief in the form of an interim declaration that:

“Each of the first, second and third defendants ought not to take any further steps towards the confirmation or approval by Cabinet. Cabinet Committees or confirmation execution or otherwise of the proposed Deed of Settlement purporting to settle the claims of the hapu represented by the plaintiffs and of Ngati Ruanui until further order of the Court.”

[6] The application for urgent interlocutory relief is the subject of the judgment now issued. The grounds upon which that urgent interlocutory relief is sought is: that the interests of the plaintiffs and the hapu they represent will be prejudiced irrevocably if the Deed of Settlement is signed by the Crown and the Working Party tomorrow.

[7] At the commencement of his submissions, Mr Dawson for the plaintiffs advised the Court that so far as the proceedings before the Court relate to alleged bias on the part of Chief Judge Williams’ of the Maori Land Court in the Waitangi Tribunal’s recommendations of 14 November 2001 (the Pakakohi and Tangaahoe Settlement Claims Report, WAI 758 and WAI 142), that issue is no longer pursued, having been the subject of a separate application for urgent interlocutory relief, in respect of which I delivered oral judgment at 5.00pm yesterday evening (Hayes and anor v The Waitangi Tribunal and ors, (High Court, Wellington, CP 111/01, Goddard J, 10 May 2001)).

[8] The central issue underlying the application for interim relief by the present plaintiffs’ and their substantive proceeding, is the existence and significance of the hapu. The plaintiffs are all descendants of the hapu named in the intituling. They are concerned that the Deed of Settlement, which is to settle all of the historical claims of the hapu in the rohe of Ngati Ruanui, including the claims of future generations, makes no reference to the protection of the interests and identity of hapu, beyond listing them so that their claims may be settled. In affidavit evidence Mr Clive Tongaawhikau of the Arokuku hapu has describe with sensitivity and in detail the unhappy history that has befallen the customary lands of the plaintiffs within their respective rohe, and the permanent prejudice that may occur to the rangatiratanga of the plaintiff hapu if the Deed of Settlement is signed in present form.

[9] Specifically Mr Tongaawhikau states as follows:

“The intended Deed of Settlement (a copy of which is made available to the Court) makes no provision to recognise hapu interests in any way. The Deed does not provide for the return of all or any of the ancestral lands of the plaintiff hapu, nor does it make any provision for the restoration of their rangatiratanga.

There is no assurance in the proposed Settlement that:

(a) the said lands or sufficient resources to acquire them would be available to the plaintiff hapu by the proposed Settlement;

(b) that such resources would be sufficient, if available, to secure the return of land and a resource base for the plaintiff hapu;

(c) that the Settlement will result in any way in the rangatiratanga of the plaintiff hapu being recognised by the Crown (particular in light of the failure of the Crown to recognise the rangatiratanga to the plaintiff hapu in the process leading up to the proposed Settlement).

The Deed of clause 3.3 provides for a governing entity to manage settlement assets but gives no indication as to the structure of this governing entity. There is a real danger, given the history of the proposed Deed, that this entity will not sufficiently recognise or protect hapu rangatiratanga.”

[10] It is unnecessary for me to retraverse in this judgment the settlement process undertaken by the Crown to date, as that process is already detailed in Hayes and anor v The Waitangi Tribunal and ors. Suffice to say, that in July 1997 the Working Party submitted its Deed of Mandate to represent Ngati Ruanui iwi in Treaty settlement negotiations. The Working Party’s mandate was recognised by Cabinet on 20 April 1998. On 4 December 2000 Cabinet approved the content of the proposed Ngati Ruanui settlement package and the Minister in Charge of Treaty of Waitangi Negotiations was authorised to initial a Deed of Settlement. On 1 March 2001 the Minister initialled the Deed of Settlement conditional upon ratification of that Deed by the claimant community of Ngati Ruanui. The Deed was subsequently ratifted by vote. The outcome of that vote overwhelmingly supported the proposed Deed of Settlement. I note that the members of the claimant community are estimated to total approximately 4,000. Sixty percent of those eligible to vote cast a vote on the issue, with 88% voting in favour of ratification of the Deed of Settlement.

[11] Mr Dawson submitted that the Deed of Settlement did not specifically recognise and provide for the Crown’s relationship with hapu. In that regard he said hapu were insufficiently “rooted” in the Deed itself. The plaintiffs’ concern, he said, was to strengthen the position of the hapu before the Deed of Settlement is signed. The next stage after signing would be governance. Mr Dawson submitted that, although it is said that the governance stage will provide for the hapu to have a governing role, the plaintiffs were nevertheless concerned that structures to ensure this have not been sufficiently established, and thus should be before the settlement negotiations are signed off. Essentially, Mr Dawson said, the Crown’s fiduciary duty to protect the interests of Maori, including the plaintiff hapu, is not provided for in the Deed of Settlement with sufficient specificity to inspire confidence that the hapu will play a governing role once the Deed is signed.

[12] So as to ensure the concerns of the plaintiffs are fully recorded in this judgment. I now set out their draft proposal for agreement to resolve the issues arising for them. That draft proposal was circulated amongst the defendants but has been declined. It states:

The parties agree:

• The Crown actively demonstrates its commitment to uphold and maintain the Treaty of Waitangi by guaranteeing the mana and rangatiratanga of the hapu of Ngati Ruanui under Article Two;

• The parties recognise the identity of the hapu (listed in the deed) as fundamental social political and economic entities, and as having a direct interest in the subject matter of the settlement; and

• That before the signing of the deed, final settlement, and any such interest is recognised legislation, payment or distribution pursuant to it, provision will be negotiated by which the hapu will have, with others, a decisive voice in the future implementation and administration of the settlement;

• That amendments to the deed for recognition of such interests and provision for such decisive voice will when they have been negotiated be put to the people of Ngati Ruanui alone with the proposals for the governance entity;

• The register of people entitled to vote will be re-opened to enable voting to take place on the deed itself any amendments negotiated, and the proposals for the governance entity;

• Ngati Ruanui hapu establish a framework for this governance entity themselves within principles of mana Maori, mana motuhake, tino rangatiratanga and tikanga.

• The outcome of the negotiations and of the vote will be put to the Crown as part of the information by which the Crown will decide on issues going to the completion of the deed.

• Hapu seek and would agree to mediation (via the Tribunal) as necessary to ensure that the issues were identified and the agenda adhered to - and for improved communication and the quality of the debate, and with an agreement in principle that the Tribunal makes rulings on issues identified in this agreement subject to application.

• The purpose of the High Court and Tribunal proceedings is to ensure as far as possible that the settlement reflects the rangatiratanga of hapu. The proceedings and discussions and processes arising out of them would be limited in this way to make the best of what is being negotiated.

• That limited purpose cannot mean that the plaintiffs for themselves and others put aside all their other concerns about the deed and process which may be pursued in other ways.

[13] Notes to the above proposal by the plaintiffs inform that the hapu do not seek to upset the settlement by their proposal: rather they seek to avoid the obliteration of the hapu as an institution by creating a legitimate expectation which will be amenable to further review by the Court, if the Deed of Settlement to be signed does not make such provision.

[14] A reratification of any future Deed of Settlement is also sought, on the basis that the issue of hapu was not before voters in any clear way at the time the present Deed of Settlement was ratified, and information hui that were held were too few and inadequate to properly inform voters.

[15] Mr Dawson submitted that the Waitangi Tribunal is the appropriate forum in which to air all of the issues relating to provision for hapu, particularly as the governing structure is at present unknown. He emphasised that the Waitangi Tribunal has not yet granted a hearing into the plaintiffs’ urgent claims pending before it, which were filed as long ago as 27 March 2000.

Does the Deed of Settlement Provide for Hapu Members?

[16] Clause 1.4 of the proposed Deed of Settlement provides as follows:

“1.4 Ngaati Ruanui:

1.4.1 means the iwi, or collective group, composed of individuals descended from a Ngaati Ruanui Ancestor or Ancestors;

1.4.2 means:

(a) every individual who is descended from a Ngaati Ruanui Ancestor or Ancestors:

(b) every individual who is a member of a hapu, group, family or whanau referred to in clause 1.4.3; and

(c) every individual who is a Taurima of Ngaati Ruanui; and

1.4.3 includes:

(a) the following hapu, namely, Araukuku, Ahitahi, Hamua, Hapotiki, Kotuku, Nga Ariki, Ngaati Hawe, Ngaati Hine, Ngaati Ringi, Ngaati Takou, Ngaati Tanewai, Ngaati Tupaea, Ngaati Tupito, Rangitawhi, Tutahi and Tuwhakaehu;

(b) Tangaahoe;

(c) Pakakohi; and

(d) any family, whanau, or group of individuals, composed of individuals referred to in clause 1.4.2”

[17] The Deed of Settlement also contains a definition of Ngaati Ruanui Ancestor or Ancestors in clause 1.5. That is by virtue of descent from the autonomous ancestor Ruanui-a-Pookiwa, or from a recognised ancestor of the named hapu; Tangaahoe or Pakakohi.

[18] Clause 1.6 of the Deed then provides for the representative entity or Governance Entity to include any person acting for or on behalf of hapu.

[19] Importantly, in clause 1.7 Member of Ngaati Ruanui means every individual referred to in clause 1.4.2 above.

[20] It is thus clear that express provision is made for hapu in the Deed of Settlement, and it cannot be said that the Crown’s relationship with hapu is not therefore “rooted” in the Deed in the clauses quoted and referred to above.

Does the Deed of Settlement Inspire Confidence That the Governing Entity to be Established Will Provide For Hapu?

[21] The Crown’s fiduciary duty to ensure hapu’s position in the settlement of all Ngati Ruanui historical claims is expressly provided for in clause 3.3 of the proposed Deed of Settlement as follows:

“Ngaati Ruanui must establish an Entity . . . to receive Redress to be provided by the Crown to the Governance Entity on or after the Settlement Date under Parts 8 and 9, which:

3.3.1 the Crown has advised Ngaati Ruanui in writing that the Crown is satisfied:

(a) will be an appropriate Entity to receive Redress under this Deed; and

(b) will have a structure that provides for:

(i) representation of Ngaati Ruanui;

(ii) transparent decision-making, and dispute resolution, processes; and

(iii) full accountability to Ngaati Ruanui; and

3.3.2 has been ratified by Ngaati Ruanui (by ratification process agreed in writing by Ngaati Ruanui and the Crown) as an appropriate body to receive Redress in accordance with this Deed.”

[22] Also of relevance is clause 11 of the Deed which provides for conditions and termination of the settlement proposed in the Deed. Expressly, the proposed Deed and the settlement are conditional on the Crown being satisfied that Ngaati Ruanui have established a Governance Entity in accordance with clause 3.3 quoted above.

[23] By virtue of the definition of Ngaati Ruanui (meaning every individual member of the hapu included in clause 1.4.3 above) the Crown guarantees representation and full accountability to all those individuals and hapu before it will effect settlement through the Governance Entity.

[24] Thus I cannot find that the proposed Deed of Settlement does not expressly favour all hapu in the rohe without exclusion.

Mr Tapsell’s Submissions

[25] Mr David Tapsell, of Bell Gully, Wellington, further provided the Court with valuable information from the bar. Bell Gully, and Mr Tapsell in particular, were formally instructed by the Working Party (following acceptance of the Working Party’s mandate by the Crown) to advise Ngati Ruanui on the settlement negotiation process. Mr Tapsell said that the concerns expressed in this Court by the plaintiffs in relation to hapu have been addressed at great length by the Working Party over a long period of time. He said that all members of the Working Party were appointed as hapu representatives, as were the first and third named plaintiffs in this application. Mr Tapsell said the issues now before the Court have been discussed and mooted by the representative Working Party over a 3 1/2 year period, in a robust fashion; particularly in relation to the question of how the hapu will be protected in the proposed Settlement. Mr Tapsell further emphasised that the conditional nature of post-settlement governance, and the acute awareness of the Working Party of the “condition and termination” in clause 11 and the timeframe involved, highlighted sensitivity to the position of the hapu. In light of awareness of these conditions. and the timeframe, Mr Tapsell said the Working Party has been actively considering the post-settlement governance situation for the last 3 1/2 years. His assurance to the Court and to the plaintiffs was that the post-settlement governance entity created “will be hapu driven - by every single hapu in the rohe’”.

[26] Furthermore, as Mr Tapsell said, ratification of the governance entity created, is necessary. Thus the plaintiffs and every other individual eligible to vote will have the democratic opportunity to ratify or to not ratify the governance entity proposed.

[27] Confirming the Crown’s commitment to provide for the interests of the hapu, and to ensure they are protected in accordance with the Crown’s fiduciary duty, are the following extracts from a letter dated 3 April 2001, written by the Minister to Mr Dawson:

“The governance entity that will receive and manage the settlement assets on behalf of the claimant community is yet to be established, and it is for the Ngati Ruanui claimant community, including the various hapu, to agree a governance entity that is appropriate to them. What the Deed of Settlement states is that the governance entity needs to be ratified by Ngati Ruanui, which includes the hapu, and must have a structure that is representative, transparent and accountable.”

[28] In a further letter to Mr Dawson sent on 1 May 2001, the Minister also said this:

“. . . the issue of recognition of hapu rights is a matter that is as much to do with the governance entity that will receive and manage the settlement as it is about the Deed of Settlement itself. An overwhelming majority of the claimant community, which by definition includes members of the hapu that comprise Ngati Ruanui, have endorsed the current Deed of Settlement and its treatment of hapu interests. The governance entity is still to be developed and ratified by the claimant community. I encourage your clients, particularly those who are Working Party members, to work with the Working Party to develop a suitable governance entity proposal that can then be put to the claimant community for ratification.”

The Plaintiffs’ Claims Currently Pending Before the Waitangi Tribunal

[29] In reality, it seems all that is extant of the plaintiffs’ claims before the Waitangi Tribunal is the extent to which claimant voters were afforded a fair opportunity to consider the proposed Deed of Settlement. I reach this view based on Memorandum issued by Judge Wainwright on 10 April 2001. In that memoranda Judge Wainwright describes the plaintiffs’ claims as follows:

“The four claims are substantially similar in form and in substance. They challenge steps that have been, and are being, taken towards the settlement of the Ngati Ruanui Treaty of Waitangi claims. Broadly speaking the challenges relate to:

• the extent to which the Ngati Ruanui deed of settlement protects the rangatiratanga of the claimant hapu.

• the mandate of the Ngati Ruanui Muru me te Raupatu Working Party to represent the claimant hapu.

• the process leading up to the initialling of the Ngati Ruanui-Crown deed of settlement on 1 March 2001 and the subsequent ratification process.

• specific concerns about the terms of the deed of settlement.”

[30] In relation to the applications for an urgent hearing of the claims, Judge Wainwright says further in her Memorandum (emphasis added):

“The submission of the four claims follows the earlier filing by Te Huirangi Waikerepuru and Rata Pue of a claim that also challenged the Ngati Ruanui-Crown deed of settlement. In that claim, which was registered under the reference Wai 889, the claimants asked the Tribunal to make certain urgent recommendations. That matter was referred to me to deal with . . . . On 23 March 2001, following the receipt of . . . memoranda, as well as the receipt of further claim documentation from Messrs Waikerepuru and Pue, I issued a decision in which I declined the application for urgency. I did so for reasons that can be summarised as follows.

• The claimants made no allegations about a failure of process that may have been in breach of the Treaty of Waitangi.

• The process for ratifying the deed of settlement was already underway.

• The Waitangi Tribunal had previously inquired into the Ngati Ruanui mandate recognition process and had concluded that the process was satisfactory.

• Having conducted that inquiry, the Tribunal would not be disposed towards inquiring into the matter again.

• The various hui to be held to ratify the deed of settlement would provide the wider claimant community with the opportunity to vote for or against it and, in that way, the remedy being sought was in fact one that was in the hands of the people.

It seems to me that the decision I issued on 23 March 2001 in respect of Wai 889 also applies to the fresh claims that have now been filed, except to the extent that it is now suggested that the claimants have not been afforded a fair opportunity to consider the proposed settlement at information hui, because the hui were too few and were conducted with undue haste. This latter point raises a question as to whether the claimants were fully informed on the matters upon which they were to vote.”

[31] Thus the highlighted passage above appears to be the only outstanding issue. Of this outstanding issue the Minister said in her letter of 1 May 2001 to Mr Dawson:

“I . . . reject the assertion that the communication process that accompanied the ratification process was insufficient. I consider that reasonable steps were taken to ensure that any Ngati Ruanui person who was registered as a member of the claimant community or who attended the communication hui was properly informed about the Crown’s settlement offer. This view is consistent with advice received from Te Puni Kokiri, who attended the communication hui as observers. Neither I nor the Office of Treaty Settlements have requested or are expecting any additional advice from Te Puni Kokiri regarding the communication hui.”

[32] It is of material consideration also that the governance process will itself be subject to ratification. Thus, even if there were any substance to the claim that ratification of the proposed Deed of Settlement was not sufficiently extensive, that situation is capable of being rectified at the vital governance ratification stage, following the signing of the Deed.

Justiciability

[33] For the same reasons I gave in Hayes & anor v The Waitangi Tribunal and ors, there is a very real justiciability issue in respect of the directions and orders sought by the plaintiffs’ in this Court relating to provision for hapu in the post-settlement and creation of a governance entity. The system that the Crown has established to take into account, recognise and protect the hapu and their interests in the proposed settlement and subsequent creation of a governance entity, are the results of a political process involving decisions based on questions of policy and matters requiring political judgment. Such political decisions are not amenable to the supervision of the Courts in the absence of clear evidence of fraud or the like. What the plaintiffs’ essentially seek therefore is to interfere in the political process. Mr Radich in his submissions distinguished the exercise of a prerogative power, such as that exercised in Council of Civil Service Unions and ors v Minister for the Civil Service [1985] AC 374 (HC), from the political decision making processes undertaken in this case. I accept the distinction made in this regard.

[34] Mr Radich further submitted that not all of the members of each of the hapu in the rohe support the plaintiffs’ proceedings in this Court, or their claims before the Waitangi Tribunal. He said that the plaintiffs now before the Court are the individuals and, as Doogue J made clear in Kai Tohu Tohu O Puketapu Hapu Incorporated v The Attorney-General and Te Atiawa Iwi Authority (High Court, Wellington, CP 344/97, 5 February 1999), disaffected groups cannot interfere in political processes.

Conclusions

[35] On the basis of all of the foregoing, I find as follows.

[36] In relation to the proposed Deed of Settlement, I am satisfied that the Court has no jurisdiction to interfere in the lengthy and detailed political process that has led to the Deed being initialled in draft by Ngati Ruanui and the Crown. Nor do I consider that the Court has jurisdiction to intervene to prevent the signing of the Deed tomorrow. There is no justiciable basis on which the Court can intervene.

[37] Even if the matters raised in the substantive proceedings were justiciable, there is, in any case, no lacuna in the proposed Deed of Settlement as alleged. Therefore the plaintiffs have no position to preserve. The proposed Deed of Settlement expressly provides, in clauses 1.4, 1.5 and 1.6, that “Ngati Ruanui” includes “hapu”. Thus the Crown’s relationship with the hapu is clearly rooted in the proposed Deed of Settlement, as evidenced by those clauses. Further, the Crown’s fiduciary duty to ensure that the position of hapu, in receiving the redress to be provided by the Crown to the governance entity pursuant to the proposed Deed of Settlement, is also expressly provided for in clause 3.3 of the Deed.

[38] In relation to the outstanding part of the plaintiffs’ claim before the Waitangi Tribunal, even if the matters raised in the substantive proceedings were justiciable, I would not be prepared to exercise my discretion to intervene in the settlement process and consequentially delay that process until the Tribunal’s Report were to hand. The balance of convenience does not require that. In any case, it seems unlikely the Tribunal would make any recommendations favourable to the plaintiffs in respect of the outstanding issues, in view of the matters referred to by the Minister in her letter of 1 May 2001 and quoted in paragraph [31] above, and in view of the fact that further ratification is required at the governance stage of the process.

Judgment

[39] The applications for interim relief are dismissed.