CNI IWI Holdings Ltd v Tuhoe Establishment Trust

• Jurisdiction: New Zealand
• Judge: Gwyn J
• Judgment Date: 02 August 2022
• Neutral Citation: [2022] NZHC 1880
• Docket Number: CIV-2019-485-700
• Court: High Court
• Year: 2022

UNDER the Declaratory Judgments Act 1908

AND the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016

IN THE MATTER OF the Central North Island Forests Land Collective Settlement Act 2008

Between

CNI IWI Holdings Limited

Plaintiff / Counterclaim First Respondent

and

Tūhoe Establishment Trust

First Defendant/ Counterclaim Second Respondent

Te Rūnanga O Ngāti Manawa

Second Defendant/ Counterclaim applicant

Te Mana O Ngāti Rangitihi

Third Defendant/ Counterclaim Third Respondent

Tūwharetoa Settlement Trust

Fourth Defendant/ Counterclaim Fourth Respondent

Te Kōmiti Nui O Ngāti Whakaue

Fifth Defendant/ Counterclaim Fifth Respondent

Te Rūnanga O Ngāti Whare

Sixth Defendant/ Counterclaim Sixth Respondent

Raukawa Settlement Trust

Seventh Defendant/ Counterclaim Seventh Respondent

Te Pūmautanga O Te Arawa Trust

Eighth Defendant/ Counterclaim Eighth Respondent

Moana Jackson And Wayne Ngata

Counterclaim Ninth Respondents

and

Ngāti Tahu-Ngāti Whaoa Rūnanga Trust

Intervener

[2022] NZHC 1880

Gwyn J

CIV-2019-485-700

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Indigenous, Trusts — application for a declaration that Tiknaga — based resolution process had not followed process — Land management — Identification of mana whenua interests — Māori jurisprudence — Tikanga principles — test of mana whenua — Kanohi ki te kanohi negotiations — Treaty of Waitangi — Settlement — Capital and income — Apportionment — Central North Island Forests Land Collective Settlement Act 2008 — Declaratory Judgments Act 1908 — Judicial Review Procedure Act 2016

Appearances:

P Radich QC and L Van Dam for Plaintiff / Counterclaim First Respondent

D Neutze for First Defendant/Counterclaim Second Respondent and Fourth Defendant / Counterclaim Fourth Respondent

J B Orpin-Dowell, M R G van Alphen Fyfe, R Zwaan for Second Defendant / Counterclaim Applicant

No appearance for Third Defendant / Counterclaim Third Respondent

No appearance for Fifth Defendant / Counterclaim Fifth Respondent

J Ferguson and C Conroy-Mosdell for Sixth Defendant / Counterclaim Sixth Respondent

F Barton and A Clark-Tahana for Seventh Defendant / Counterclaim Seventh Respondent

M Ferrier and A Leggat for Eighth Defendant / Counterclaim Eighth Respondent

P F Majurey for the Intervener

The application was declined.

JUDGMENT OF Gwyn J

TABLE OF CONTENTS

Introduction	[1]
Parties	[7]
Tikanga-based resolution process	[11]
Stage one: Identification of mana whenua interests	[12]
Stage two: Kanohi ki te kanohi negotiations	[15]
Stage three: Adjudication	[20]
Claims before this Court	[33]
Issues	[39]
Issue one: whether the process whereby two adjudicators made a decision, with the third adjudicator incorporating his views at a later time, complied sufficiently with the requirements of the Tikanga-based resolution process	[42]
Discussion	[63]
Issue two: whether the decision to have all of the land held in one title and retained by the Company was a decision that the adjudicators had the power to make under the tikanga-based resolution process	[92]
Discussion	[116]
Issue three: whether the decision to convert the substantive, medial and limited interests of each iwi in the CFLs into percentage shares for each iwi in each CFL was valid	[143]
Issue four: whether the decision to change the allocation of the rental proceeds received by the first to eighth defendants for each of the CFLs from the percentages set out in Schedule 3 of the Act was valid	[148]
Issue five: whether the decision to give immediate effect to the changed rental allocations was valid	[148]
Discussion	[161]
Issue six: whether Table Two in the Jackson/Ngata Decision altered the mana whenua interests determined by the adjudication panel in the first panel decision and affirmed as valid in the High Court decision	[168]
Discussion	[211]
What did the Schedule 2 process require?	[212]
Was the Schedule 2 process amended by the 12 July 2012 PSGE resolution?	[214]
Amplification of 26 June 2014 Decision?	[220]
Effect of the Board's acceptance of the 26 June 2014 Decision	[227]
Meaning and effect of Ellis J conclusion	[229]
Issue seven: whether the adjudication panel failed to give substantive recognition to Ngāti Manawa's mana whenua interests	[239]
Discussion	[242]
Issue eight: whether the adjudication panel erred in failing to give effect to the agreement between Ngāti Manawa and Affiliate Te Arawa Iwi/Hapu	[245]
Ngāti Manawa/Ngāti Tahu-Ngāti Whaoa agreement	[246]
Identification in Second Panel Decision of specific Ngāti Tahu-Ngāti Whaoa mana whenua interests	[271]
Discussion	[282]
Ngāti Manawa/Ngāti Tahu-Ngāti Whaoa agreement	[283]
Specific identification by the Panel of Ngāti Tahu-Ngāti Whaoa mana whenua interests	[295]
To whom should identified mana whenua interests be allocated?	[299]
Result	[307]
Relief	[309]
Costs	[314]
Appendix One: Mana whenua interests identified in 26 June 2014 Decision
Appendix Two: Table Two from Jackson/Ngata Decision

Introduction

1 In 2008, the Crown and eight Central North Island Iwi (CNI Iwi) reached a Treaty settlement of their historical claims under the Treaty of Waitangi. Under the settlement, the Crown agreed to transfer 176,000 ha of Central North Island Forests Land (CNI forests land) to CNI Iwi, through their respective post-settlement governance entities (PSGEs). The settlement was given effect to by the Central North Island Forests Land Collective Settlement Act (the Act).

2 Under the settlement the Crown also agreed to transfer $223 million in rentals that had accumulated from the Crown Forestry Licences (CFLs) attaching to the CNI forests land and the rights to ongoing rentals from the CFLs. The Crown transferred the CNI forests land and accumulated rentals to CNI Iwi Holdings Limited (the Company). The shares and directorships of the Company are held equally by the PSGEs of the CNI Iwi.

3 The Company's role is to hold and administer the land and to distribute the ongoing rentals from the forestry licences as trustee for CNI Iwi in accordance with the Act, the CNI (Central North Island) Forests Iwi Collective Deed of Settlement of the historical claims of CNI (Central North Island) Forests Iwi Collective to the Central North Island Forests Land, of 25 June 2008 (Settlement Deed) and the Trust Deed and Shareholders' Agreement of 30 June 2009 (TD & SA). 1

4 The accumulated rentals from the CFLs are allocated to the CNI Iwi in accordance with the allocation percentages in sch 3 of the Act. 2 The ongoing rentals and other income derived from the land continue to be paid to the Company and must be allocated and distributed according to the Collective's agreed proportions in the TD & SA 3 until the Collective's final allocation date (as defined in the deed of trust) – 2043 (or earlier by unanimous agreement of all iwi). 4 After the Collective's final

allocation date, the ongoing rentals become an entitlement of the iwi “to whom that part of the land is distributed”, i.e. the income will “run with the land”. 5

5 As part of the settlement, CNI Iwi agreed on a process to allocate the CNI forests land amongst themselves. Allocation under this Tikanga-based resolution process, is to be on the basis of mana whenua. 6

6 At the completion of the Tikanga-based resolution process, the Company is to prepare a final allocation agreement, which records the outcome of the resolution process and is final and binding. 7 After completion of the final allocation agreement, on receiving a written request from a PSGE, the Company must transfer the CNI forests land to that CNI Iwi or nominee, in accordance with the final allocation agreement and the TD & SA. 8

Parties

7 The Company, the plaintiff in this proceeding, has seen its role in the proceeding as assisting the Court by providing an objective overview of the factual narrative and of the applicable legal principles. It has identified for the Court the principal issues and the positions of the parties, as the Company understands them to be, based on the pleadings filed. 9

8 The PSGEs are the first to eighth defendants in this proceeding. The ninth defendants are the members of the Adjudication Panel appointed under the Tikanga-based resolution process. It is the Adjudication Panel's decision that is subject to judicial review in this proceeding. As is usual, the Panel did not take an active part in the proceedings. Nor did the sixth defendant, Ngāti Whakaue.

9 Ngāti Tahu-Ngāti Whāoa was granted leave to intervene in the proceeding in relation to an agreement between Ngāti Tahu-Ngāti Whāoa and Ngāti Manawa (the

second defendant) and because of the likelihood that the Court's determination will affect Ngāti Tahu-Ngāti Whāoa's direct interest. The application for leave was unopposed

10 The broad issue before the Court is whether stage three of the Tikanga-based resolution process has been completed in accordance with the Act and the TD & SA and, if not, what further steps should be directed.

Tikanga-based resolution process

11 The Tikanga-based resolution process, set out in sch 2 of the Act and sch 3 of the Settlement Deed, comprises three stages:

• (a) the identification of mana whenua interests;

• (b) kanohi ki te kanohi negotiations amongst CNI Iwi; 10 and

• (c) in the absence of agreement following negotiations, mediation or adjudication to determine the allocation of the disputed lands.

Stage one: Identification of mana whenua interests

12 The first stage requires CNI Iwi to provide maps to the Company indicating the extent of their mana whenua interests in the 23 parcels of CNI forests land. 11

13 The...