Winitana v Attorney-General - [2019] NZHC 381

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2017-485-1067

[2019] NZHC 381

BETWEEN
VERNON WINITANA

Applicant

AND

ATTORNEY-GENERAL

First Respondent

AND

THE WAIROA-WAIKAREMOANA

MĀORI TRUST BOARD
Second Respondent

AND

TŪHOE TE URU TAUMATUA

Third Respondent

AND

GENESIS ENERGY LTD

Fourth Respondent

AND

TŪHOE CHARITABLE TRUST

Fifth Respondent

Hearing: 11–12 October 2018

Counsel:

P T Harman and R Zwaan for Applicant A K Irwin for First Respondent

S T Webster for Second Respondent

M G Colson and D W Ballinger for Third and Fifth Respondents P Beverley and A O’Connor for Fourth Respondent

Judgment:

8 March 2019

JUDGMENT OF ELLIS J

WINITANA v ATTORNEY-GENERAL [2019] NZHC 381 [8 March 2019]

[1] Lake Waikaremoana is a taonga of immense importance to Tūhoe, Ngāti Ruapani and Ngāti Kahungunu. But in its 2017 Te Urewera Report, the Waitangi Tribunal noted that the Lake1 had been the subject of one of the longest battles in New Zealand legal history.2

[2] Some might have thought that the battle ended almost 50 years ago, with the passage of the Lake Waikaremoana Act 1971 (the LWA). That Act validated a lease of the Lake that had earlier been agreed between a Committee3 authorised to represent the beneficial Māori owners of the Lake and the Crown.4 The object of the lease was to formalise the Crown’s historical and ongoing use of the Lake for National Park and other purposes and, for the first time, to require the Crown to pay rent.5

[3] The LWA did more than validate the lease. It vested ownership of the freehold in the lakebed in two existing Māori Trust Boards6 and provided that the rent was to be paid to those Boards in shares to be determined after the former owners had exercised a choice as to whether they wished to be on the Tūhoe “list” or the Ngāti Kahungunu “list”. But because the beneficiaries of these pre-existing Trust Boards were not limited to the former owners of the Lake, the LWA recognised that the rent received by the Boards could be applied for their more general purposes. That is what has happened.

[4] As recorded in the Te Urewera Report, it seems tolerably clear that at least some of the Lake owners in 1971 did not know either that the ownership of the Lake was to be transferred to the Boards or that the rent would be able to be applied for the Boards’ wider purposes. But the Tribunal found no breach of the Treaty of Waitangi (the Treaty) by the Crown either in relation to the process of negotiating the lease or

1      I use the words “Lake” and “lakebed” interchangeably in this judgment, which seems to accord with historical practice, including in the Lake Waikaremoana Act 1971 itself.
2      Waitangi Tribunal Te Urewera Report (Wai 894, 2017) vol 6 at 2739 [the Report]. I refer to the Report in more detail later in this judgment.
3      The Committee…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Winitana v Attorney-General

Details

AGLC: Winitana v Attorney-General [2019] NZHC 381
Case: [2019] NZHC 381
Decision Date: 8 March 2019

CaseChat Overview and Summary

Vernon Winitana sought declarations that there are continuing fiduciary relationships between the former Lake owners (and their descendants) on the one hand and the Crown and the Trust Boards on the other. He also sought a declaration that there are constructive trusts over the rental income such that that income should have been and must be held by the Boards for the sole benefit of the descendants of the former Lake owners. The respondents contended that both the specific declarations sought run hard up against the earlier two MLC decisions, by virtue of s 77 of the 1993 Act. That section provides that no order made by the Court with respect to Maori land shall, whether on the ground of want of jurisdiction or on any other ground whatever, be annulled or quashed, or declared or held to be invalid, by any court in any proceedings instituted more than 10 years after the date of the order. In its judgment, the Court found that s 77 does operate to bar the Court from entertaining some or all of Mr Winitana's application. The Court also concluded that the declarations sought were not in conformity with the law or the facts. The applications were denied.

Orders