Ngati Whatua Orakei Trust v Attorney-General

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young,O'Regan,Ellen France,Arnold JJ,Ellen France J,Elias CJ
Judgment Date17 September 2018
Neutral Citation[2018] NZSC 84
Docket NumberSC 135/2017
Date17 September 2018

[2018] NZSC 84




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

SC 135/2017

Ngāti Whātua Ōrākei Trust
First Respondent
Ngāti Paoa Iwi Trust
Second Respondent
Marutūāhu Rōpū Limited Partnership
Third Respondent

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

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

A court would not make an order to prevent the introduction of a Bill to the House of Representatives. The fact that a decision may be the subject of legislation would not always take the decision out of the reach of supervision by the courts. That ignored the function of the courts to make declarations as to rights.

The Court held that it was possible to identify public law decisions which could be the subject of challenge without interference with parliamentary proceedings. On that basis, the CA had been wrong to characterise the relief sought as confined to a challenge to the legislative proposal for the transfer of the specified properties. Nor was it correct to find that the only impact on the Trust would be through the proposed legislation. There were issues as to the nature and scope of the rights claimed which Ngati Whatua Orakei should be permitted to pursue in the usual way.

If current policies were pursued, any settlement with other groups may ultimately be the subject of legislation. But it was not inevitable that settlements or all aspects of a settlement would be implemented by legislation. Where there are potentially rights in issue, it must be open to Ngati Whatua Orakei to seek to clarify its status in the area over which it claims rights short of a challenge to the particular decisions to transfer the specified properties

Decisions under s120 Collective Redress Act 2014 (“CRA”) (land required for another Treaty settlement ceasing to be RFR [right of first refusal] land) were reviewable. A challenge to the way in which s120 CRA was applied which was independent of the particular decisions triggering the proceeding could be identified in the claim and was still relevant.

Some of the relief sought was problematic in terms of the principle of parliamentary non-interference and would need to be re-pleaded.

The appeal was allowed in part. The proceeding was remitted to the HC for hearing.

  • 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.


Para No.

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


Elias CJ


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

(Given by Ellen France J)

Table of Contents

Para No.





Narrative of events


The claim


The judgments in the High Court and the Court of Appeal


The appeal




Some principles


Application of the principles to the present case





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.


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

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.


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


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.


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

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.


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).


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...

To continue reading

Request your trial
5 cases
  • Attorney General v Taylor and Others
    • New Zealand
    • Supreme Court
    • 9 November 2018
    ...of the Australian Constitution (OUP, Oxford, 2018) 905 at 922. 85 At 5. 86 See also Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84 at 87 Taylor (CA), above n 4, at [149]–[156] and [164]. We add that we are inclined to agree with the Chief Justice below at [107] that the declar......
  • Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board
    • New Zealand
    • Supreme Court
    • 30 September 2021
    ...n 267, at [164]. 273 At [94]. See also Ngati Apa, above n 269, at [205] per Tipping J. 274 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116. 275 At [77] (footnote omitted). 276 Loasby, above n 270. 277 Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 [ Ta......
  • Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board
    • New Zealand
    • Supreme Court
    • 30 September 2021
    ...n 267, at [164]. 273 At [94]. See also Ngati Apa, above n 269, at [205] per Tipping J. 274 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116. 275 At [77] (footnote omitted). 276 Loasby, above n 270. 277 Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 [ Ta......
  • Re Edwards (Te Whakatohea No. 2)
    • New Zealand
    • High Court
    • 7 May 2021
    ...explicitly stated that “Māori customary law is an ingredient of the common law of New Zealand”. 150 276 More recently, in Ngāti Whātua Ōrakei Trust v Attorney-General, Elias CJ observed that rights and interests according to tikanga may be legal rights recognised by the common law and, in a......
  • Request a trial to view additional results
1 firm's commentaries
  • A declaration of rights (or legislative wrongs) in New Zealand
    • New Zealand
    • Mondaq New Zealand
    • 26 November 2018
    ...through declarations. A similar approach was apparent in the Supreme Court's decision in Ngati Whatua Orakei v Attorney-General & Ors [2018] NZSC 84, decided earlier this year (see our Brief Counsel), in which the majority also emphasised that it is a function of the courts to make decl......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT