Wairarapa Moana Ki Pouakani Incorporation v Mercury NZ Ltd

• Jurisdiction: New Zealand
• Judge: Winkelmann CJ,Glazebrook,Williams JJ,Williams J,William Young J,O'Regan J
• Judgment Date: 07 December 2022
• Neutral Citation: [2022] NZSC 142
• Docket Number: SC 93/2021
• Court: Supreme Court

Between

Wairarapa Moana Ki Pouākani Incorporation

Appellant

and

Mercury NZ Limited

First Respondent

Waitangi Tribunal

Second Respondent

Attorney-General

Third Respondent

Ngāti Kahungunu Ki Wairarapa Tāmaki Nui-Ā-Rua Settlement Trust

Fourth Respondent

Raukawa Settlement Trust

Fifth Respondent

Te Kotahitanga O Ngāti Tūwharetoa

Sixth Respondent

Pouākani Claims Trust

Seventh Respondent

Ryshell Griggs and Mark Chamberlain (On Behalf of Ngāi Tūmapūhia-Ā-Rangi Hapū)

Eighth Respondents

The Trustees of the Rangitāne Tū Mai Rā Trust

Ninth Respondent

Between

Ryshell Griggs and Mark Chamberlain (On Behalf of Ngāi Tūmapūhia-Ā-Rangi Hapū)

Appellants

and

Waitangi Tribunal

First Respondent

Attorney-General

Second Respondent

Mercury NZ Limited

Third Respondent

Wairarapa Moana Ki Pouākani Incorporation

Fourth Respondent

Ngāti Kahungunu Ki Wairarapa Tāmaki Nui-Ā-Rua Settlement Trust

Fifth Respondent

Takere Leach on Behalf of Te Hika O Pāpāuma

Sixth Respondent

Haami Te Whaiti on Behalf of Ngāti Hinewaka

Seventh Respondent

Kingi Winiata Smiler

Eighth Respondent

The Trustees of the Rangitāne Tū Mai Rā Trust

Ninth Respondent

Raukawa Settlement Trust

Tenth Respondent

Te Kotahitanga O Ngāti Tūwharetoa

Eleventh Respondent

Pouākani Claims Trust

Twelfth Respondent

[2022] NZSC 142

Court:

Winkelmann CJ, William Young, Glazebrook, O'Regan and Williams JJ

SC 93/2021

SC 127/2021

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

Indigenous — appeal against a High Court decision which granted a judicial review application of a preliminary decision of the Waitangi Tribunal which found the Tribunal had misinterpreted its resumption powers and breached tikanga and Treaty of Waitangi principles when it determined that the land could be resumed by an iwi without mana whenua — Treaty of Waitangi Act 1975

Counsel:

P J Radich KC, M K Mahuika and T N Hauraki for Wairarapa Moana ki Pouākani Inc

J E Hodder KC, L L Fraser and K C Grant for Mercury NZ Ltd

M R Heron KC, C D Tyson and H P Graham for Attorney-General

M G Colson KC and M R G van Alphen Fyfe for Ngāti Kahungunu ki Wairarapa Tāmaki Nui-ā-Rua Settlement Trust

C F Finlayson KC, F B Barton and A L Clark-Tahana for Raukawa Settlement Trust

P V Cornegé, F E Geiringer, and A S Castle for Ms Griggs and Mr Chamberlain

No appearances for:

Waitangi Tribunal

Te Kotahitanga o Ngāti Tūwharetoa

Pouākani Claims Trust

The Trustees of the Rangitāne Tū Mai Rā Trust

Takere Leach on behalf of Te Hika O Pāpāuma

Haami Te Whaiti on behalf of Ngāti Hinewaka

Kingi Winiata Smiler

• A The appeal by Wairarapa Moana ki Pouākani Inc in SC 93/2021 is allowed in part. The High Court's ruling that the Waitangi Tribunal has no power to recommend resumption in favour of a claimant without mana whenua is set aside. The appeal is otherwise dismissed.

• B The appeal by Ryshell Griggs and Mark Chamberlain in SC 127/2021 and the cross-appeal by Mercury NZ Limited in SC 93/2021 are dismissed.

• C Issues as to costs may be dealt with by memoranda if they are not otherwise agreed. Memoranda will be no longer than five pages and must be filed and served within 20 working days.

JUDGMENT OF THE COURT

REASONS

	Para No
Winkelmann CJ, Glazebrook and Williams JJ	[1]
William Young J	[166]
O'Regan J	[206]

Winkelmann CJ, Glazebrook and Williams JJ

(Given by Williams J)

Table of Contents

	Para No
Introduction	[1]
The issues in this Court	[11]
Statutory context and background to the resumption regime	[14]
Waitangi Tribunal findings and Crown concessions on the Wairarapa historical claims	[25]
General findings (also of relevance to Ngāumu forest)	[25]
Pouākani land findings	[29]
Settlement negotiations follow, then stall, then resume again	[38]
Negotiations	[38]
Resumption applications and preliminary determinations	[40]
New settlement with Ngāti Kahungunu Settlement Trust	[44]
Claim settlement Bill	[45]
The Waitangi Tribunal's preliminary determinations	[48]
Pouākani land determinations	[52]
Ngāumu forest determinations	[53]
The status of these ‘preliminary’ determinations	[56]
Issue one: the mootness issue	[58]
Issue two: the mana whenua issue	[60]
The High Court's approach	[60]
The positions of the parties	[62]
Setting mana whenua in the wider context of tikanga and its evolution	[69]
Engaging tikanga processes to resolve resumption applications	[86]
Mana whenua and the Ngāumu forest	[92]
Conclusions on mana whenua	[95]
Issue three: the relevant prejudice issue	[96]
High Court	[97]
A comment on the nature of historical Treaty claims	[100]
The minority views on relevant prejudice	[101]
Issue four: the Crown's interest liability issue	[107]
The background to, and overview of, the legislative scheme	[110]
The legislative scheme as to compensation	[115]
The compensation issues that arise in relation to the Ngāumu forest	[117]
The Tribunal and the High Court	[123]
Submissions	[125]
Our approach	[127]
Issue five: the standing issue	[140]
The issue	[140]
The legislative context	[142]
Mercury's argument	[144]
The Tribunal and the High Court	[148]
Our approach	[153]
Conclusions	[159]
Result	[163]

Introduction

1 These two appeals and one cross-appeal raise important issues for the application of the Waitangi Tribunal's “resumption” jurisdiction. 1

2 In 2010, the Waitangi Tribunal delivered its three-volume Wai 863 report into the historical claims of Ngāti Kahungunu and Rangitāne of the Wairarapa region (the Wai 863 report). 2 The Tribunal largely upheld those claims. Rangitāne has since settled. 3 What became the Ngāti Kahungunu ki Wairarapa Tāmaki Nui-a-Rua Settlement Trust (Ngāti Kahungunu Settlement Trust) claimed a mandate to represent all of Ngāti Kahungunu ki Wairarapa, engaged in negotiations with the Crown on their behalf, and eventually reached a settlement (in fact, two settlements, as we come to). But at the same time, two Ngāti Kahungunu ki Wairarapa-related entities applied to the Tribunal for resumption of certain land in which they claimed a particular interest.

3 First, Wairarapa Moana ki Pouākani Inc (Wairarapa Moana) sought resumption of 787 acres located in the Central North Island on the southwest bank of the Waikato river that formerly comprised part of the much larger Pouākani No 2 block ( the Pouākani land). Wairarapa Moana is a Māori incorporation operated under Part 13 of Te Ture Whenua Māori Act 1993.

4 The Pouākani land is the site of the Maraetai Power Station, now owned and operated by Mercury NZ Ltd (Mercury). As at October 2018, it was valued at more

than $600 million. The Pouākani land is not within the rohe of Ngāti Kahungunu ki Wairarapa. Rather it is in the rohe of Raukawa and Ngāti Tūwharetoa. It was held by hapū of those iwi until the late 19th century when the Crown acquired it. In 1916, the Crown agreed with the traditional owners of Lake Wairarapa and Lake Ōnoke in southern Wairarapa to exchange title to those lakes for what became the Pouākani No 2 block. Wairarapa Moana owns what now remains of that block on behalf of its Ngāti Kahungunu shareholders

5 The result of this complexity is that Wairarapa Moana's application is opposed by Raukawa (whose position is supported by Ngāti Tūwharetoa), 4 Mercury and the Crown.

6 Second, Ryshell Griggs and Mark Chamberlain sought resumption of 10,313.8 hectares of Crown forest licence land located in coastal Wairarapa ( the Ngāumu forest). They applied on behalf of Ngāi Tūmapūhia-ā-Rangi, a hapū of Ngāti Kahungunu with traditional rights ( take tipuna) 5 in the Ngāumu forest (for ease of reference we refer to the applicants as Ngāi Tūmapūhia-a-Rangi). The estimated potential value of the Ngāumu forest including compensation payable under the Crown Forest Assets Act 1989 is of the order of $290 million. The Crown opposed that application.

7 In response to the applications by Wairarapa Moana and Ngāi Tūmapūhia-a-Rangi, and to protect its position, the Ngāti Kahungunu Settlement Trust filed cross-applications for resumption.

8 On 2 March 2020, and in response to Mercury's application to adduce evidence and make submissions on the possible resumption of the Pouākani land, the Tribunal

determined that it was precluded from hearing from Mercury by s 8C of the Treaty of Waitangi Act 1975. 6

9 On 24 March 2020, the Tribunal delivered certain “preliminary determinations” on the substantive resumption applications. 7 These determinations were issued as part of a continuing “iterative process” of engagement with claimants, the Crown and other affected parties. The Tribunal indicated that it was minded to grant resumption of the Pouākani land and the Ngāumu forest but not to either Wairarapa Moana or Ngāi Tūmapūhia-ā-Rangi. The Tribunal considered the Treaty-breaching prejudice suffered by these smaller claimant groups was insufficient to justify resumption and would result in unfairness to other claimants who would not benefit. Rather, prejudice suffered on an iwi-wide scale and in relation to the entire tribal estate, would provide the justification. Identifying a recipient capable of bearing that wider Ngāti Kahungunu ki Wairarapa mandate would be a matter for further hearings and consideration, although the Tribunal did not discount the possibility that the Ngāti Kahungunu Settlement Trust may eventually be found to be an appropriate recipient.

10 Mercury then sought judicial review of the Tribunal's standing determination, and the Crown and Raukawa (the last-mentioned again supported by Ngāti Tūwharetoa) sought judicial review of the Tribunal's preliminary determinations. As we come to, the High Court dismissed...