Ririnui v Landcorp Farming Ltd and Others

• Jurisdiction: New Zealand
• Judge: Williams J
• Judgment Date: 26 May 2014
• Neutral Citation: [2014] NZHC 1128
• Docket Number: CIV-2014-485-2915
• Court: High Court
• Date: 26 May 2014

Under the Judicature Amendment Act 1972

Between

Mita Michael Ririnui

Plaintiff

and

Landcorp Farming Limited

First Defendant

The Minister of State-Owned Enterprises and the Minister of Finance

Second Defendants

The Attorney-General

Third Defendant

[2014] NZHC 1128

CIV-2014-485-2915

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

Application for judicial review of a decision by the first defendant State Owned Enterprise (SOE) to sell a dairy farm — iwi claimed mana whenua in respect of the land and wanted it back as part of its Treaty settlement — an application for resumption was before the Waitangi Tribunal — the land title carried a standard resumption memorial pursuant to s27B State-Owned Enterprises Act 1986 (“SOEA”) (resumption of land on recommendation of Waitangi Tribunal) — whether the first defendant was subject to s9 SOEA (Crown must act consistently with Treaty of Waitangi) — whether the Office of Treaty Settlements had made an error of law in mistakenly concluding that Ngāti Whakahemo's claims had been settled, which tainted all subsequent acts and omissions of the defendants — whether the second defendants (shareholding Ministers) should have intervened to prevent the sale under s13 SOEA (powers of shareholding Ministers in respect of new state enterprises) or under the Duomatic principle (intervention by shareholders) — whether decisions around Treaty settlements were political and not amenable to judicial review.

Counsel:

A N Isac and J P Koning and G M Richards for Plaintiff

S A Barker and L M Brazier for First Defendant

J R Gough and S J Humphrey for Second and Third Defendants

INTERIM JUDGMENT OF Williams J

1 Landcorp is the vendor in an unconditional agreement for the sale of one of its dairy farms Whārere Farm to a private third party Micro Farms Ltd (Micro Farms). Whārere Farm is a 404 ha operation situated in mid-coastal Bay of Plenty between Te Puke and Matata. The land title carries a standard resumption memorial pursuant to s 27B of the State-owned Enterprises Act 1986 (the SOE Act). The sale will settle on 30 May 2014.

2 Ngāti Whakahemo claims mana whenua in respect of the land in question. Ngāti Whakahemo wants Whārere Farm back as part of its Treaty settlement package, saying this is the only Crown-related land still available within its traditional rohe. They say it is an asset that is not substitutable.

3 Ngāti Whakahemo has an application for resumption currently before the Waitangi Tribunal. I understand a judicial conference was to be held by the Tribunal on 19 May 2014 in relation to the application but I do not know where matters have got to since. Ngāti Whakahemo wants the proposed Landcorp sale stopped.

4 Ngāti Whakahemo sues:

• (a) Landcorp – arguing that:

  • (i) the company is subject to s 9 of the SOE Act; and

  • (ii) by pursuing this sale, Landcorp is in breach of its s 9 obligations.

  Alternatively, it is argued that the factual matrix of the sale process gives rise to a legitimate expectation that while Ngāti Whakahemo was in discussions with Landcorp over the land, Landcorp would not sell to anyone else.

• (b) Landcorp's shareholding Ministers – arguing that:

  • (i) they are unquestionably subject to s 9; and

  • (ii) they should have used their powers as shareholders to step in to prevent Landcorp from selling;

• (c) the Attorney-General on behalf of the Office of Treaty Settlements (OTS) arguing that OTS made an error of law in mistakenly concluding that Ngāti Whakahemo's claims had been settled. This, the applicant says, is the original sin tainting all subsequent acts and omissions of the Crown Ministers and Landcorp.

5 Landcorp responds that:

• (a) it is not the Crown and s 9 does not apply to it; and

• (b) discussions between Ngāti Whakahemo and Landcorp at the time of the sale did not provide any basis for the expectation alleged.

6 The Crown collectively responds that:

• (a) decisions around Treaty settlements are political and not amenable to judicial review;

• (b) the shareholding Ministers have no power to interfere in operational decisions of Landcorp; and

• (c) although OTS does seem to have mistakenly concluded that all of Ngāti Whakahemo claims were settled when at least some were not, that fact could have made no material difference to the Crown's attitude to sale, even if Ministers did have the power to intervene.

The facts

Whārere Farm and the Māori landscape

7 The plaintiff Mita Ririnui, is Chair of the Ngāti Whakahemo Claims Trust. There is no issue in this proceeding in relation to his status as a spokesperson for Ngāti Whakahemo.

8 Ngāti Whakahemo territory is, he says, situated generally between Pokare to the east, Pongakawa to the south, north to Motunau and west to Ngawhara and Maketu. Whārere is within that broad territory. According to Mr Ririnui's evidence, Maruahaira is Ngāti Whakahemo's founding ancestor. His (that is Maruahaira's) whakapapa is Takitimu, Tainui and Matatua.

9 Ngāti Whakahemo is nestled amongst larger kin neighbours who claim descent not from the Takitimu, Tainui and Matatua canoes but from the Te Arawa canoe. These Te Arawa neighbours include Ngāti Makino whose interests substantially overlap with those of Ngāti Whakahemo, and Ngāti Pikiao whose interests begin at Lake Rotoiti and expand toward the coast.

10 For reasons I will explain below, Ngāti Makino was given a special opportunity by Landcorp following consultation with the Minister for Treaty of Waitangi Negotiations, to bid for Whārere Farm even though that tribe's Treaty claims had already been settled.

11 Although Ngāti Whakahemo has in the past been listed as a hapu of Ngāti Pikiao, that affiliation seems to have been political rather than genealogical. That distinction is important because in tikanga Māori, land rights are derived by descent, not by political affiliation.

12 Both Ngāti Pikiao and Ngāti Makino accept that Whārere Farm is situated generally within Ngāti Whakahemo territory. Whārere Farm was constructed from parts of the former Pukehina A2, Pukeroa 2 and Kaikokopu Māori land blocks. The Pukehina block (or at least significant parts of it) were awarded to Ngāti Whakahemo by the Native Land Court in the 19 ^th century. It appears that only a small part of the farm sits on Pukehina A2. It is mostly on Pukeroa 2. Other right holders in these blocks included Ngāti Pikiao and Ngāti Makino among others.

The Ngāti Whakahemo claim

13 Ngāti Whakahemo lodged a land claim with the Waitangi Tribunal in January 2008. The claim was given the descriptor Wai 1471 by the Tribunal. Ngāti Whakahemo eventually sought to engage directly with the Crown over the settlement of their claim. The Crown refused. On 29 May 2012, OTS wrote to the Ngāti Whakahemo Claims Committee, advising that in the Crown's view, Ngāti Whakahemo's claim had been settled by the Affiliate Te Arawa Iwi and Hapu Deed of Settlement signed on 2 June 2008.

14 The Crown has consistently taken and communicated that view to Ngāti Whakahemo right up until the filing of the Crown's statement of defence in this proceeding. Thus, by letter of 16 July 2013, the Minister of Treaty of Waitangi Settlements advised Ngāti Whakahemo's solicitors that the Te Arawa Affiliate Claims Settlement Act 2008 settled all Ngāti Whakahemo historical claims because Ngāti Whakahemo was specifically listed in the that Act as a hapu of Ngāti Pikiao.

15 The Crown has now come to accept that since the Ngāti Whakahemo claim in this area is not based on descent from a Te Arawa ancestor, but on descent from Maruahaira, the claim is not in fact settled. This is because s 13 of the Affiliate Te Arawa Iwi and Hapu Claims Settlement Act 2008 settles only “affiliate historical claims”. By the terms of s 12(2) ‘affiliate historical claims’ do not include a claim of the description set out in cl 1, Part 3, Schedule 2 to the Act. That description is as follows:

A claim that a member of the Affiliate, or an iwi, hapu, whanau or subgroup referred to in any of the definitions of collective groups in Part 1 of Schedule 1, may have that is, or is founded on, a right arising as a result of being descended from an ancestor who is not an Affiliate Ancestor.

(my emphasis)

16 Ngāti Whakahemo is in fact included as a “subgroup” of Ngāti Pikiao according to Schedule 1, Part 1. 1 But Part 2 of the First Schedule lists the relevant descent line as follows:

Ngāti Pikiao ancestor means an individual who exercised customary rights–

(a) by virtue of being descended from Pikiao …

17 Thus, because Maruahaira's descent line is separate from that of Pikiao, the 2008 Act does not settle the core Ngāti Whakahemo claims – i.e. those claims derived from its primary descent line through Maruahaira – despite the fact that Ngāti Whakahemo is listed as a subgroup of Ngāti Pikiao.

Landcorp, OTS and the Protocol

18 Landcorp owns assets valued at nearly $1.7 billion. According to its 2013 annual report, it operates 137 farming properties comprising 376,942 ha. Landcorp farms sheep, beef, deer and dairy cattle. And its lands carry 1.6 million stock units.

As an SOE, its shareholding Ministers are the Ministers of Finance and State Enterprises

19 Whārere Farm is one of those 137 properties. The farm comprises 404 ha in a single title of which 360 ha is productive. It is operated as two farms in five separate units. Its strategic deficit from Landcorp's commercial perspective is that it is geographically isolated from the company's other Bay of Plenty dairying operations so Landcorp does not obtain the usual economies of scale in the management and operation of this farm.

20 Thus, on 5 August 2013, Landcorp notified OTS (the agency within the Ministry of Justice tasked with supporting the Minister for Treaty of Waitangi Negotiations) that it was investigating the sale of Whārere Farm. On 12 September 2013, OTS advised that the land was not of potential interest...