Ngati Mutunga O Wharekauri Asset Holding Company Ltd v Attorney-General

• Jurisdiction: New Zealand
• Judge: Williams J
• Judgment Date: 29 January 2020
• Neutral Citation: [2020] NZCA 2
• Docket Number: CA640/2017
• Court: Court of Appeal

Between

Ngāti Mutunga O Wharekauri Asset Holding Company Limited

First Appellant

TWA Holding Company Limited

Second Appellant

and

Attorney-General

Respondent

[2020] NZCA 2

Court:

Brown, Gilbert and Williams JJ

CA640/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Administrative — challenge to a Parliamentary Bill introduced in the House of Representatives — whether a challenged decision was outside the court's jurisdiction because it might be the subject of legislation in the future — Parliamentary Privilege Act 2011

Counsel:

T J Castle and T A Castle for First and Second Appellants

V L Hardy and C R W Linkhorn for Respondent

• A The appeal is dismissed.

• B The claim is struck out.

• C The respondent is entitled to costs on a band A basis certified for second counsel with usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Williams J)

Introduction

1 The function of the courts in New Zealand is to resolve disputes by adjudicating on the rights of litigants and, if necessary, to grant remedies, including declarations, about those rights. Can the courts make declarations about the rights consistency of bills before the House of Representatives? If they cannot, are they nonetheless able to adjudicate upon and make declarations about rights alleged to have been compromised by the policy underlying bills?

Facts

2 On 8 March 2016, the Government introduced into the House of Representatives the Kermadec Ocean Sanctuary Bill (the KOS Bill). 1 By its terms, a new marine sanctuary covering 620,000 square kilometres of the South Western Pacific is to be established (the Sanctuary). 2 It is to be centred on the Kermadec Islands (or Rangitahua) and to extend out to the edge of the north-eastern portion of New Zealand's exclusive economic zone. 3

3 This area coincides with Fisheries Management Area 10 (FMA 10), an area established under the Fisheries Act 1996 within which New Zealand's system of fishing quota management applies. If enacted, the effect of the KOS Bill will be to prohibit all fishing within FMA 10. 4

4 By the terms of the Maori Fisheries Deed of Settlement 1992 (the 1992 Settlement Deed), given effect by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, iwi are entitled to 20 per cent of any new fishing quota the government decides to issue when it introduces new species into the quota management system. FMA 10 is very remote. It is not currently commercially fished. Notwithstanding this, the Minister of Fisheries allocated to Te Ohu Kai Moana Trustee Ltd (Te Ohu Kaimoana) (which for these purposes acts as a holding trustee for the eventual iwi recipients of parcels of quota) the equivalent in quota of 20 per cent of the total allowable catch within FMA 10. The details of the particular quota were not provided.

The Crown no doubt made this allocation because of its obligations under the Deed of Settlement that allocated the quota to Te Ohu Kaimoana. The Government has indicated it does not intend to tender the remaining 80 per cent of the FMA 10 quota. Rather, it will retain that quota.

5 The appellants represent Ngati Mutunga and Te Whanau a Apanui, iwi with an established entitlement to receive quota from Te Ohu Kaimoana when it comes to allocate it.

The claim

6 The essence of the appellants' complaint is that the Sanctuary proposal will effectively confiscate their entitlements in FMA 10. 5 This proceeding follows a similarly-structured challenge to the Sanctuary proposal which had been brought by Te Ohu Kaimoana. 6 It is useful background, therefore, to briefly outline the High Court's treatment of that challenge.

7 As in the present case, the Crown sought an interim stay pending enactment of the KOS Bill. It was granted by Simon France J in the High Court. The Judge reasoned that because the Sanctuary could only be created by legislation, any challenge to the Crown's proposal to establish it could only be a challenge to the Bill itself and that was impermissible. 7

8 The Judge did accept that some aspects of the challenge were “capable of exploration”. 8 The comity principle, he said, should not be seen as banning any judicial consideration of “all related issues”. 9 Crucially, however, the Judge concluded that there had been no application to sever the aspects of the case that did not amount to a challenge to the KOS Bill and so a stay of the entire proceeding was appropriate. 10

9 As presently constituted, the appellants' proceeding seeks a declaration that the establishment of the Sanctuary and the proscription of fishing within it breach rights and freedoms guaranteed to them under the New Zealand Bill of Rights Act 1990 (BORA) — in particular, the right to be free from unreasonable seizure of their property, 11 the right to freedom of movement, 12 the right to enjoy their culture, 13 and the right to observance of the principles of natural justice. 14 Further, the appellants argue that the Sanctuary breaches the provisions and principles of the Treaty of Waitangi (the Treaty), including the Crown's fiduciary obligation and duty of good faith; breaches the 1992 Settlement Deed and its implementing Act; undermines New Zealand's quota management system and the rights held by the appellants under it; and is inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples 15 and the United Nations Convention on the Law of the Sea. 16 It will be seen that although the focus is on BORA rights, the appellant argues that these rights are to be seen in the context of a deeper matrix of rights, and particularly indigenous rights.

10 In the High Court the Crown sought an interim stay of the proceedings “until such time as the Kermadec Ocean Sanctuary Bill is no longer before Parliament”. The order was sought on the grounds that the claim constituted an improper interference in the proceedings of the House, would infringe the House's privileges and offend the principle of comity between the legislative and judicial branches.

11 The Crown also filed a draft statement of defence in which its primary pleading was that it had no obligation to plead to the alleged breaches of rights, but nonetheless denied the allegations that the KOS Bill would breach the appellants' rights.

The High Court judgment

12 In the High Court, Clark J granted the Crown's application for an interim stay. 17 The essence of the Judge's reasoning was that the appellants' challenge was prohibited by s 11 of the Parliamentary Privilege Act 2014. 18 That section provides as follows:

11 Facts, liability, and judgments or orders

In proceedings in a court or tribunal, evidence must not be offered or received, and questions must not be asked or statements, submissions, or comments made, concerning proceedings in Parliament, by way of, or for the purpose of, all or any of the following:

• (a) questioning or relying on the truth, motive, intention, or good faith of anything forming part of those proceedings in Parliament:

• (b) otherwise questioning or establishing the credibility, motive, intention, or good faith of any person:

• (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament:

• (d) proving or disproving, or tending to prove or disprove, any fact necessary for, or incidental to, establishing any liability:

• (e) resolving any matter, or supporting or resisting any judgment, order, remedy, or relief, arising or sought in the court or tribunal proceedings.

13 The Judge held that the claim was “an unambiguous questioning of a proceeding” in the House. 19 This was because the claim alleged rights breaches which cannot be determined without questioning the effect of the KOS Bill, which was a proceeding in Parliament for the purposes of s 11. 20

Submissions

14 The appellants argued that the challenge to the KOS Bill and the relief sought did not offend against s 11 of the Parliamentary Privilege Act. Rather, it was argued, the challenge was permissible in light of authority on the question of the extent to

which courts are entitled to make findings about, and grant relief in relation to, proceedings before Parliament where they are relevant to a dispute. The appellants relied on the decision of the Supreme Court in Ngati Whatua Orakei Trust v Attorney-General. 21 Ngati Whatua Orakei (Ngati Whatua) brought proceedings against the Crown in relation to proposed Treaty settlements with other iwi who have claims in the greater Auckland area. Ngati Whatua argued that certain redress on offer breached its ahi ka and mana whenua. The appellants focused particularly on the judgment of Elias CJ. They argued that the reasoning she employed was that the courts are entitled to enquire into legislative proposals without crossing into the legislature's preserve, provided there was no question of coercive relief. For example, referring to the decisions in Comalco Power (New Zealand) Ltd v Attorney-General 22 and Te Runanga o Wharekauri Rekohu Inc v Attorney-General, 23 Elias CJ said: 24

The Courts in these cases were not concerned with declarations of existing legal right without coercive effect as to what could be placed before Parliament. The reference in Te Runanga o Wharekauri Rekohu to declaration or damages or other relief is a reference to dictating what can be placed before Parliament. The case does not suggest that determination of present legal entitlement constitutes impermissible interference with proceedings in Parliament.

15 The appellants also called in aid the decision of this Court in Thompson v Treaty of Waitangi Fisheries Commission where the Court in effect considered whether there was inconsistency between the 1992 Settlement Deed and the Maori Fisheries Bill 2003 then before the House. 25 While the Court made no formal declarations, 26 a majority was prepared to...