The Attorney-General v Alan Parekura Torohina Haronga

• Jurisdiction: New Zealand
• Judge: Harrison J
• Judgment Date: 19 December 2016
• Neutral Citation: [2016] NZCA 626
• Docket Number: CA353/2015
• Court: Court of Appeal
• Date: 19 December 2016

BETWEEN

The Attorney-General

Appellant

and

Alan Parekura Torohina Haronga

First Respondent

and

Aitanga A Mähaki Trust

Second Respondent

and

Waitangi Tribunal

Third Respondent

and

David Donald Harry Brown

Fourth Respondent

BETWEEN

Venerable Timoti Flavell

Appellant

and

Waitangi Tribunal

First Respondent

and

The Attorney-General

Second Respondent

[2016] NZCA 626

Court:

Ellen France P, Harrison and Cooper JJ

CA353/2015

CA545/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeals relating to decisions made by the respondent and Independent Hearings Panel (“IHP”) relating to the Auckland Unitary Plan (“AUP”) — the appeals related to Urban Growth, Rural Urban Boundary, Residential Zones, Rezoning and Precincts — whether the IHP interpreted its statutory duties contained in Part 4 Local Government (Auckland Transitional Provisions) Act 2010 (“LGATPA”) (process for development of first combined plan for Auckland Council) lawfully, when deciding whether its recommendations to the defendant were within the scope of submissions made in respect of the first Auckland Combined Plan — whether the IHP had a duty to identify specific submissions — whether it was lawful for the IHP to determine the scope of submissions by reference to another submission — to what extent were principles (regarding the question of scope) established under the Resource Management Act 1991 case law relevant — whether the IHP correctly applied the legal framework in the test cases — were the appellants'/applicants' allegations against the respondent concerning the IHP's determination on issues of scope appealable pursuant to the LGATPA and/or reviewable — what relief could the High Court grant the appellants/applicants if the IHP and/or the respondent had acted unlawfully in respect of the IHP's determination on an issue of scope under the LGATPA.

Counsel:

CRW Linkhorn, C D Tyson and A J Allan for Appellant (CA353/2015) and Second Respondent (CA545/2015)

P J Radich QC, K S Feint and M S Smith for First and Second Respondents (CA353/2015)

R N Zwaan and B R Lyall for Third Respondent (CA353/2015) and First Respondent (CA545/2015)

• A The appeal in CA353/2015 is dismissed. The orders made in the High Court remain.

• B The appellant in CA353/2015 must pay costs to the first and second respondents for a standard appeal on a band A basis with usual disbursements — we certify for second counsel; and 30 per cent of the fourth respondent’s costs for preparation of a standard appeal on a band A basis together with usual disbursements. There is no order for costs in favour of the third respondent.

• C The appeal and cross-appeal in CA545/2015 are dismissed. The orders made in the High Court remain.

• D There is no order for costs in CA545/2015.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Harrison J)

Introduction	[1]
Statutory framework	[7]
Key provisions	[9]
Legislative history	[15]
Scope of the Tribunal's discretion	[21]
The Mangatū claims (CA353/2015)	[25]
Background	[25]
The Mangatū Remedies Report	[32]
(a) Mangatū	[33]
(b) Nga Ariki Kaiputahi	[35]
(c) Te Whanau a Kai	[38]
(d) Mahaki	[39]
(e) Conclusion	[40]
Decision	[42]
(a) Introduction	[42]
(b) First ground of appeal	[46]
(c) Second and third ground of appeal	[52]
(i) Crown’s argument	[52]
(ii) Our assessment	[57]
(iii) Mangatū	[61]
(iv) Ngā Ariki Kaipūtahi and Te Whānau a Kai	[67]
(v) Māhaki	[68]
(d) Conclusion	[70]
The Ngāti Kahu claims (CA545/2015)	[76]
Background	[76]
The Ngāti Kahu Remedies Report	[80]
High Court decision	[86]
Appeal	[89]
Cross-appeal	91]
Result	[97]

Introduction

1 These two appeals raise a common issue about the powers of the Waitangi Tribunal under the Treaty of Waitangi Act 1975 (the Act). It follows from the Tribunal's findings in two separate remedies reports that, first, certain claims to Maori ownership of Crown land were well founded and, second, the action to be taken to compensate or remove the prejudice caused by the Crown's acts leading to loss of the land should includeits return. The question arising is whether the Tribunal is then bound to recommend to the Crown that the land or part of it be returned to Maori ownership 1.In the event of the Crown's subsequent failure to settle the claim within 90 days, a binding order would be made for its resumption to facilitate transfer to the claimants 2.

2 In this judgment, we refer to the Tribunal's power to recommend that land be returned to Maori ownership as an “interim recommendationÉD;, which becomes a“binding order” on the passage of 90 days — together, this process is referred to as the Tribunal's statutory power to make “binding recommendations” for the return of land to Maori ownership.

3 In the primary case (CA353/2015), the Tribunal found that claims by Alan Haronga on behalf of four Maori entities to 8,626 acres of Crown land with in

the Mangatū State Forest north of Gisborne were well founded: the land was removed from Maori ownership by an act which was inconsistent with the Treaty of Waitangi, and at least part of the land should be returned to Maori to remove the prejudice caused 3. The Tribunal nevertheless decided on a number of grounds to dismiss three of the applications for binding recommendations and adjourned a fourth, while issuing non-binding recommendations that the Crown and the claimants should seek a negotiated settlement including the return of part or all of the land to the claimants

4 On Mr Haronga's application to the High Court for judicial review, Clifford J held that the Tribunal had erred in lawand misconstrued the statutory scheme of the binding recommendation regime 4. He quashed the Tribunal's report and directed it to reconsider the applications. The Attorney-General appeals.

5 In the second case (CA545/2015), the Tribunal found that claims by the Venerable Timoti Flavell on behalf of Ngāti Kahu to land east of Kaitaia were well founded and the land was removed by an act which was inconsistent with the Treaty but declined to make binding recommendations 5.Instead, as was the case for Mr Haronga's claim, the Tribunal issued a series of non-binding recommendations for settlement.

6 On Mr Flavell's application for judicial review, Dobson J found that the Tribunal erred, first in treating its power to make binding recommendations as a remedy of last resort as distinct from another available remedy 6;and, second in failing to consider whether binding recommendations were appropriate for parts only of the land for which a remedy was sought. He set aside parts of the Tribunal's report and ordered it to reconsider. Despite his success before Dobson J, Mr Flavell appeals. The Crown cross-appeals.

Statutory framework

7 Both appeals will be determined by our interpretation of the Tribunal's powers under the Act and its amendments and the Crown Forest Assets Act 1989 (the CFAA). In this respect we note that in Haronga v Attorney-General (Haronga SC) the Supreme Court recently reviewed the statutory framework when allowing Mr Haronga's appeal against theTribunal's dismissal of his earlier request for an urgent hearing of the claim 7.The Supreme Court's analysis, to which we shall return, will bear significantly upon our approach.

8 All parties proceeded on the basis that our analysis of binding recommendations relating to Crown forests must also apply to the largely identical provisions for land held in the name of a state-owned enterprise, introduced by the State-Owned Enterprises Act 1986 and of relevance to The Ngāti Kahu claims. For simplicity, our assessment will focus on the primary case dealing with Crown forest land.

Key provisions

9 The Tribunal's functions are relevantly described in s 5 of the Act as follows:

5 Functions of Tribunal

• (1) The functions of the Tribunal shall be-

  • (a) to inquire into and make recommendations upon, in accordance with this Act, any claim submitted to the Tribunal under section 6:

    …

  • (ab) to make any recommendation or determination that the Tribunal is required or empowered to make under Schedule 1 of the Crown Forest Assets Act1989:

10 Any Maori individual or group which is prejudicially affected by a past, present or proposed state action that is inconsistent with Treaty principles may

submit a claim to the Tribunal 8. The Tribunal then has a broad jurisdiction to consider claims and make findings and recommendations in this way:

6 Jurisdiction of Tribunal to consider claims

…

• (3) If the Tribunal finds that any claim submitted to it under this section is well-founded it may, if it thinks fit having regard to all the circumstances of the case, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.

• (4) A recommendation under subsection (3) may be in general terms or may indicate in specific terms the action which, in the opinion of the Tribunal, the Crown should take.

  …

11 Section 7(1A) materially provides:

7 Tribunal may refuse to inquire into claim

…

• (1A) The Tribunal may, from time to time, for sufficient reason, defer, for such period or periods as it thinks fit, its inquiry into any claim made under section 6.

12 Section 8HB(1), which was introduced into the main Act by the CFAA, is of central importance 9:

8HB Recommendations of Tribunal in respect of Crown forest land

• (1) Subject to section 8HC, where a claim submitted to the Tribunal under section 6 relates to licensed land the Tribunal may,-

  • (a) if it finds-

    • (i) that the claim is well-founded; and

    • (ii) that the action to be taken under section 6(3) to compensate for or remove the prejudice caused by the ordinance or Act, or the...