Ngati Whatua Orakei Trust v Attorney-General

• Jurisdiction: New Zealand
• Judge: William Young,O'Regan,Ellen France,Arnold JJ,Ellen France J,Elias CJ
• Judgment Date: 17 September 2018
• Neutral Citation: [2018] NZSC 84
• Docket Number: SC 135/2017
• Court: Supreme Court
• Date: 17 September 2018

Between

Ngāti Whātua Ōrākei Trust

Appellant

and

Attorney-General

First Respondent

Ngāti Paoa Iwi Trust

Second Respondent

Marutūāhu Rōpū Limited Partnership

Third Respondent

[2018] NZSC 84

Court:

Elias CJ, William Young, O'Regan, Ellen France and Arnold JJ

SC 135/2017

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Constitutional, Indigenous Rights — appeal against a Court of Appeal decision which upheld a High Court (“HC”) which struck out struck out the appellant's claims that the Crown had breached or would breach its rights in relation to Treaty of Waitangi settlements — the HC held that the relief sought directly related to the development of legislative proposals and granting the declarations sought would be an interference with parliamentary proceedings

Counsel:

J E Hodder QC, J W J Graham and R M A Jones for Appellant

D J Goddard QC and D A Ward for First Respondent

P F Majurey for Third Respondent

P A Joseph, T D Smith and R L Goss for Interveners

• A The appeal is allowed in part. The claim is reinstated apart from paragraphs (e) and (f) of the declaratory relief sought. The proceeding is remitted to the High Court for hearing.

• B The first and third respondents must pay the appellant one set of costs of $25,000 plus usual disbursements. We allow for second counsel.

• C The costs orders in the High Court and Court of Appeal are set aside. If costs in those Courts cannot be agreed they should be set by the Court of Appeal and High Court respectively in light of this judgment.

JUDGMENT OF THE COURT

REASONS

	Para No.
William Young, O'Regan, Ellen France and Arnold JJ	[1]
Elias CJ	[69]

William Young, O'Regan, Ellen France AND Arnold JJ

(Given by Ellen France J)

Table of Contents

	Para No.
Introduction	[1]
Background	[5]
Narrative of events	[7]
The claim	[20]
The judgments in the High Court and the Court of Appeal	[30]
The appeal	[34]
Discussion	[35]
Some principles	[36]
Application of the principles to the present case	[50]
Result	[67]

Introduction

1 Ngāti Whātua Ōrākei Trust challenges various decisions on the basis that the Crown breached or will breach its rights in relation to the central Auckland region. The claim arises in the context of proposed settlements of historical Treaty of Waitangi (Treaty) claims between the Crown and Ngāti Paoa Iwi Trust and between the Crown and Marutūāhu Rōpū Limited Partnership. It is intended the settlements will be implemented by legislation.

2 Ngāti Whātua Ōrākei's claim was struck out in the High Court. Davison J considered, amongst other matters, that the relief sought directly related to the development of legislative proposals and granting the declarations sought would breach the principle of non-interference by courts in parliamentary proceedings. 1 The decision to strike out was upheld in the Court of Appeal on the basis the relief sought

would comprise an interference with parliamentary proceedings. 2 Ngāti Whātua Ōrākei was given leave to appeal to this Court on the question of whether the Court of Appeal should have allowed the appeal. 3 The principal issue for determination on the appeal is whether the claim should be permitted to proceed on the basis that it is properly characterised as a claim for the recognition of various rights rather than as a challenge to the decision to legislate

3 For the reasons which follow, we consider the appeal should be allowed in part with the result that Ngāti Whātua Ōrākei can largely pursue its claim for declarations as to its rights. As we shall also explain Ngāti Whātua Ōrākei cannot, as its counsel accepted, ask the Court to declare that the proposed decisions to legislate to implement the settlement with Ngāti Paoa and with Marutūāhu are invalid. In the present proceeding that means Ngāti Whātua Ōrākei cannot pursue the challenge to the proposed decision to transfer specified properties which is to be implemented by legislation. Some re-pleading will accordingly be necessary. We add that the existence of the proceeding does not prevent the responsible Minister from introducing the proposed settlement legislation to the House of Representatives or provide any basis for deferral of consideration and passage of the settlement legislation.

4 To put the issues on appeal in context, it is first necessary to set out the background.

Background

5 The description of the factual narrative which follows focuses on the recent history and matters relevant to the current proceedings. It is helpful to preface that discussion by noting the Waitangi Tribunal's observations that the situation in Tāmaki Makaurau (Auckland) is “very particular”. 4 The position is captured in this passage

from the Tribunal's report into the process adopted by the Crown in its negotiations with Ngāti Whātua Ōrākei: 5

Auckland is now a highly urbanised area with very valuable real estate. In the pre-contact era, Tāmaki was likewise seen by Maori as a desirable place to live, no doubt because of its warm climate, multiple harbours, and good volcanic soil. Unsurprisingly, successive waves of invaders competed for dominance there down the centuries, and the early establishment of Pakeha settlement on the shores of the Waitemata only added to its attractions. Thus, it was — and remains — an intensively occupied part of the country, where constant habitation by changing populations of Maori as a result of invasions, conquests, and inter-marriage has created dense layers of interests. The disposition of those interests as between the various groups identifying as tangata whenua there in 2007 is the subject of controversy.

6 The recent factual narrative is set out in detail in the decisions of the lower Courts. 6 We draw heavily on those descriptions in the summary which follows.

Narrative of events

7 For present purposes, it is sufficient to start with the signing of an agreement in principle to settle historical Treaty claims entered into between Ngāti Whātua o Ōrākei Maori Trust Board and the Crown in June 2006. The agreement recorded the parties' in principle agreement to work together, in good faith, towards a deed of settlement. The deed and the agreement would be subject to the passage of legislation.

8 The relevant feature of the agreement in principle was a clause giving Ngāti Whātua Ōrākei a right of first refusal over various properties, including Crown-owned properties, across an area extending over the Auckland isthmus from the Waitemata Harbour in the north to the Manukau Harbour in the south, across to Avondale in the west and including parts of Onehunga, Ellerslie and Remuera to the east (the 2006 right of first refusal land). The area includes an area transferred to the Crown in October 1840 which encompassed some 3,000 acres between Hobson Bay (Matahaharehare) in the east, Cox's Creek (Opou/Opoututeka) in the west and Mount Eden (Maungawhau) in the south (the 1840 transfer land).

9 The terms of the 2006 agreement in principle caused concern among other iwi and hapū of Tāmaki Makaurau. In particular, they considered their interests had been adversely affected by the process adopted. A claim was filed with the Waitangi Tribunal. In 2007 the Tribunal undertook an urgent inquiry into the process adopted by the Crown in its negotiations with Ngāti Whātua Ōrākei. As the Court of Appeal observed: 7

The Tribunal concluded in its report of 12 June 2007 that as regards [other tangata whenua groups in Tāmaki Makaurau], the Crown's policy and practice had been unfair, both as to process and as to outcome. It recommended that the proposed settlement with Ngāti Whātua Ōrākei not proceed at that stage, and that instead, the Office of Treaty Settlements should work with other groups to negotiate settlements for them. Once that had been done, it would be possible to arrive at a situation where appropriate redress could be offered to Ngāti Whātua Ōrākei and all the relevant groups.

10 There was then a break in the negotiations with Ngāti Whātua Ōrākei. The Rt Hon Sir Douglas Graham was asked by the Minister for Treaty of Waitangi Negotiations (the Minister) to facilitate discussions with all of the interested parties. Sir Douglas carried out a series of meetings with the relevant iwi and hapū. 8 The discussions culminated in an agreement on 12 February 2010 referred to as the Nga Mana Whenua o Tāmaki Makaurau and Crown Framework Agreement (the Framework Agreement). The members of Ngā Mana Whenua o Tāmaki Makaurau were:

• (a) Ngāti Whātua Rōpū, referred to in the Framework Agreement as the hapū of Ngāti Whātua with spiritual, traditional and historical interests in respect of any of the maunga;

• (b) Tāmaki Rōpū, listed in the Framework Agreement as Te Kawerau a Maki, Ngāti Te Ata, Ngāti Tamaoho, Te Akitai and Ngai Tai ki Tāmaki; and

• (c) Marutūāhu Rōpū, listed in the Framework Agreement as Ngāti Paoa, Ngāti Maru, Ngāti Whanaunga and Ngāti Tamatera.

11 The Framework Agreement recognised that each of the members had “legitimate spiritual, ancestral, cultural, customary and historical interests within Tāmaki Makaurau”. The agreement went on to provide for the vesting of the Crown-owned parts of 11 maunga and for their governance. Relevantly, for present purposes, the Crown offered members a right of first refusal over a period of 170 years in relation to all land held by core Crown agencies over a defined area. 9

12 At the same time, on 12 February 2010, Ngāti Whātua o Ōrākei Maori Trust Board and the Crown entered into a supplementary agreement to the 2006 agreement in principle. The purpose of this further agreement was to detail how the 2006 agreement in principle could be amended so negotiations on a deed of settlement could be finalised. The supplementary agreement deleted the provisions in the 2006 agreement in principle relating to the...