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NGATI TE ATA v THE MINISTER FOR TREATY OF WAITANGI NEGOTIATIONS [2017] NZHC 2058 [25
August 2017]
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2017-404-1050
[2017] NZHC 2058
BETWEEN
NGATI TE ATA
Applicant
AND
THE MINISTER FOR TREATY OF
WAITANGI NEGOTIATIONS
First Respondent
HER MAJESTY THE QUEEN
Second Respondent
NGATI TAMAOHO SETTLEMENT
TRUST
Third Respondent
REGISTRAR GENERAL OF LAND
Fourth Respondent
Hearing:
4 August 2017
Counsel:
J P Kahukiwa and I B Kwan-Parsons for Applicant
S M Kinsler and C J C Pouwels for First and Second
Respondents
T T Kapea for Third Respondent
N C Anderson for Fourth Respondent
Judgment:
25 August 2017
JUDGMENT OF WHATA J
This judgment was delivered by me on 25 August 2017 at 4.15 pm
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Corban Revell, Auckland Crown Law, Wellington
[1] Ngāti Te Ata challenges the decision by the Minister for Treaty of Waitangi
Negotiations (the Minister) to dispose of two properties1 classified as right of first
refusal land (RFR land) by the Ngā Mana Whenua o Tāmaki Makaurau Collective
Redress Act 2014 (the Collective Redress Act). Ngāti Te Ata makes two claims.
First, the Minister has no express power to dispose of RFR land in circumstances
where a mana whenua iwi objects to the disposal. Alternatively, any decision to
dispose of RFR land is unreasonable where another mana whenua iwi was objecting
and had taken steps to resolve the matter.
[2] The Minister submits removal of land from the RFR mechanism for the
purpose of individual Treaty of Waitangi settlements is expressly enabled by the
Collective Redress Act, and the land which was removed forms part of a Treaty
settlement package agreed with Ngāti Tamaoho.
[3] A curious feature of this case is that the transfer of the two properties at issue
(the early transfer properties) is not conditional on the draft Bill before Parliament
seeking to ratify the settlement with Ngāti Tamaoho. The Minister nevertheless
submits the decision to dispose of the properties, as part of a Treaty settlement, is a
political decision and consequently non-justiciable.
[4] With the benefit of argument, the central questions in this case therefore are:
(a) Is the decision by the Minister to dispose of the properties for the
purpose of an individual Treaty settlement justiciable?
(b) Does the Minister have the power to dispose of RFR land for the
purpose of an individual Treaty settlement?
(c) Is a decision by the Minister to dispose of RFR land for Treaty
settlement purposes unreasonable where another mana whenua iwi
objects to it and has taken steps to resolve the matter?
1 Lot 8 DP 51794, Certificate of Title NA102D/981, located at 725 Great South Road, Wiri, and
Sec 23 Survey Plan 435724, Certificate of Title NA581486, located at 112 Bairds Road, Ōtara.
The applicant
[5] The pleadings refer to Ngāti Te Ata as the applicant. While the existence and
mana of Ngāti Te Ata is not disputed by the Crown, the capacity to sue in the name
of Ngāti Te Ata is challenged. There are problems for the Court with commencing
proceedings in the name of an iwi or hapū, in particular the practical inability to
make or enforce orders against persons whose membership of the named party is
determined by whakapapa.2 I assume for present purposes that counsel have
authority, in accordance with tikanga, to commence proceedings in the name of
Ngāti Te Ata. That being the case, I am content to refer to the applicant as Ngāti Te
Ata within the body of this judgment. However, for the purpose of any orders to be
made in these proceedings, the plaintiff will be Te Ara Rangatu O Te Iwi O Ngāti Te
Ata Waiohua Inc (1920008), the entity which executed the undertaking as to
damages in support of interim orders.
Background
[6] The background to this proceeding has two parts: the first dealing with the
Collective Redress Deed and Act, the second with the Ngāti Tamaoho negotiations
and settlement.
The Collective Redress Deed and Act3
[7] On 9 June 2006, the Crown and Ngāti Whātua o Ōrākei (Ngāti Whātua)
entered into an agreement in principle providing for the settlement of Ngāti Whātua’s
historical claims. The proposed settlement involved, among other things, a right of
first refusal to lands located within Tāmaki Makaurau.
[8] The other iwi and hapū with mana whenua in Tāmaki Makaurau brought an
urgent claim before the Waitangi Tribunal, pointing to process failures, and unhappy
about the content of the draft settlement which they said offered Ngāti Whātua
2 Rule 4.24 of the High Court Rules 2016 provides for representative actions. But this requires the
consent of all persons represented and is not the basis advanced by Mr Kahukiwa for filing in the
name of the iwi. 3 For a full account of the background see Ngāti Whātua Ōrākei Trust v Attorney-General [2017]
NZHC 389, especially [12]-[28], [43]-[47], and [51]-[56].
opportunities and assets without sufficient regard to their equally strong interests.4
The Tribunal delivered its report on 12 June 2007. It laid out a strong critique of the
Crown’s approach, which it said primarily “damages whanaungatanga”, overlooking
that:5
… When the Crown deals with one group in settlement negotiations,
everything it does affects others who have interests in and connections to the
area that is the subject of the negotiation. Often, the affected groups are kin
to the settling group; always, they are neighbours. They all share history,
interests in land, and whakapapa. In Tāmaki Makaurau, which has been
intensively occupied by successive groups for generations, the layers of
interests are complex and intense.
[9] In terms of commercial redress, the overriding concern of the objecting iwi
and hapū was that the Crown would not be able to offer them anything equivalent to
what was offered to Ngāti Whātua.6 More specifically, their concerns were, among
others, that there was insufficient information for them to properly analyse the
commercial redress offered, and that the right of first refusal offered to Ngāti Whātua
was over areas where other mana whenua iwi and hapū had interests, with some
offered sites being of particular cultural significance.7
[10] Notably, the Crown’s case before the Tribunal was that it dealt fairly with
‘overlapping claimants’ in the pre-agreement in principle period, and that it would
again meet with those claimants in the period following the proposed agreement
being put in place.8 It also emphasised that sites in the right of first refusal area were
for commercial, not cultural, redress, and that the applicants were conflating the two
concepts.9
[11] The Tribunal did not accept the Crown’s position. It found:10
The Crown’s dealings with overlapping claimants without Tribunal
involvement do not inspire confidence in the Crown’s willingness to respond
to those claimants’ concern without that kind of incentive. Cabinet itself has
approved the terms of the agreement in principle, and would need to approve
any changes to them. The Ngāti Whātua o Ōrākei negotiating team would
4 Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007) at 1.
5 At 2.
6 At 71.
7 At 72.
8 At 76.
9 At 80.
10 At 95.
also need to agree to any change to the terms of the agreement in principle
being made in the deed of settlement. Accordingly, we consider that it is the
parties’ intention and expectation that the redress proposed in the agreement
in principle will be the settlement redress unless something substantial
upsets that plan. This is why this Tribunal does not accept the Crown’s
submission that our involvement is premature.
[12] It also observed:11
… a right of first refusal (a form of exclusive redress) is not usually
available on a property in an area subject to unresolved ‘overlapping’ claims.
Ngāti Whātua o Ōrākei have been offered rights of first refusal over multiple
properties in such an area. Moreover, the Office of Treaty Settlements’
evidence about the nature of Ngāti Whātua o Ōrākei’s interests is
inconsistent. We were told that the right of first refusal area was not one in
which Ngāti Whātua o Ōrākei are recognised as having exclusive interests.
Yet in documents from the Office of Treaty Settlements to their Minister,
Ngāti Whātua o Ōrākei’s interests in the right of first refusal area are
described as being exclusive …
[13] And finally:12
Although others have customary interests in the Ngāti Whātua o Ōrākei
Right of First Refusal Area, Ngāti Whātua o Ōrākei’s right of first refusal is
not framed so as to take account of those: they have exclusive rights there in
respect of any of the Crown’s properties that become surplus. This has
consequences for groups who may have cultural ties to those sites. The
Crown has not accounted for this possibility in its framing of redress for
Ngāti Whātua o Ōrākei …
[14] Turning to the principles of the Treaty of Waitangi, the Tribunal found a
number of inconsistencies in the Crown’s approach. Primarily, it found the Crown
failed to fulfil its duty to act reasonably, honourably and in good faith, by failing to
fully inform itself before making material decisions affecting Māori, including by
not adequately weighing overlapping claims or adequately consulting and involving
people concerned in deliberations.13
[15] The Tribunal’s principal concern was with the fairness to other mana whenua
iwi and hapū of the Ngāti Whātua agreement:14
We think that the Crown must afford the other tangata whenua groups in
Tāmaki Makaurau that appeared before us the opportunity to enter into a
11
At 97. 12
At 99. 13
At 100-101. 14
At 107.
negotiation and settlement relationship with the Crown. This is because we
believe the Crown cannot say right now with any confidence that it knows
enough about all the groups’ relative interests to be awarding exclusive
rights to any, nor to be precluding the possibility that exclusive rights may
need to be awarded to any. Nor can the Crown say with any confidence that
its offer of commercial redress to Ngāti Whātua o Ōrākei does not
undermine its ability to benefit the other groups similarly, because:
it has not valued what it is offering to Ngāti Whātua o Ōrākei;
it does not know whether other properties comparable to those in the
North Shore Naval housing area can be made available to other
claimants; and
it has not taken into account whether the offer of areas of rights of
first refusal to Ngāti Whātua o Ōrākei will overlap with sites of
cultural significance to the other tangata whenua groups.
[16] In response, the Crown entered into negotiations with a collective of Tāmaki
iwi, Ngā Mana Whenua o Tāmaki Makaurau (the Tāmaki Collective)15
about
collective redress with respect to:
(a) vesting of maunga and certain motu located within the Tāmaki
Makaurau and co-governance of specified reserves; and
(b) a collectively held right of first refusal for 170 years to purchase
surplus land held by the Crown in Tāmaki Makaurau.
[17] Out of those negotiations, the Crown and the Tāmaki Collective concluded a
Collective Redress Deed on 8 September 2012.
The Deed
[18] The Collective Redress Deed was conditional on legislation coming into
force, and envisaged (among other things):
(a) the enactment of legislation to give effect to its terms;
15
Ngā Mana Whenua o Tāmaki Makaurau comprises Ngāti Tai ki Tāmaki, Ngāti Maru, Ngāti
Pāoa, Ngāti Tamaoho, Ngāti Tamaterā, Ngāti Te Ata, Ngāti Whanaunga, Ngāti Whātua o
Kaipara, Ngāti Whātua Orākei, Te Ākitai Waiohua, Te Kawerau ā Maki, Te Patukirikiri and hapū
of Ngāti Whātua (whose members are beneficiaries of Te Runanga o Ngāti Whātua, including Te
Taoū not descended from Tuperiri).
(b) the establishment of legal entities necessary for the implementation of
its terms;
(c) vesting of specified maunga and motu in the Tāmaki Collective;
(d) co-governance of specified reserves; and
(e) a right of first refusal in relation to specified RFR land vested in a
limited partnership, namely the Whenua Haumi Roroa o Tāmaki
Makaurau Limited Partnership (the Limited Partnership).
[19] Most relevant for present purposes is cl 6 of the Deed, which provides for a
right of first refusal as follows:
THE STATUTORY RIGHT
6.1 The limited partnership is to have a right of first refusal in relation to
a disposal by the Crown or a Crown body of RFR land.
6.2 The right of first refusal is to be on the terms provided by sections
116 to 151 of the draft bill and, in particular, will apply –
6.2.1 for a term of 172 years from the effective date; and
6.2.2 only if the RFR land –
(a) is vested in, or the fee simple estate in it is held by,
the Crown on the effective date and the land is not
occupied by a tertiary education institution other
than one named in part 4 of the attachments;
(b) in the case of land described in part 4 of the
attachments, is held in fee simple by a Crown body;
and
(c) is not being disposed of in the circumstances
referred to in sections 120(2) and 120(3) of the draft
bill.
LAND REQUIRED FOR COMPREHENSIVE SETTLEMENTS
6.3 The iwi and hapū of Ngā Mana Whenua o Tāmaki Makaurau
record their agreement that the RFR is not to apply to any
land (including a cultural redress property or land used for
financial and commercial redress) that is required for the
settling of historical claims under the Treaty of Waitangi,
being those relating to acts or omissions of the Crown
before 21 September 1991.
6.4 To give effect to that agreement, the Tāmaki Makaurau
collective legislation will, as provided by section 119 of the
draft bill, provide for the removal of any land required for
another Treaty settlement.
…
[20] Clause 119 of the Bill, on its first reading on 2 July 2013, stated:
119 Land required for another Treaty settlement ceasing to be RFR
land
(1) The Minister for Treaty of Waitangi Negotiations must, for RFR land
required for another Treaty settlement, give notice to both the RFR
landowner and the Limited Partnership that the land ceases to be
RFR land.
(2) The notice may be given at any time before a contract is formed
under section 126 for the disposal of the land.
(3) In this section, RFR land required for another Treaty settlement
means RFR land that is to be vested or transferred as part of the
settling of historical claims under the Treaty of Waitangi, being those
relating to acts or omissions of the Crown before 21 September
1992.
Collective Redress Act
[21] The Collective Redress Act received royal assent on 31 July 2014. The
preamble records:
(1) The iwi and hapū constituting the collective known as Ngā Mana
Whenua o Tāmaki Makaurau have claims to Tāmaki Makaurau
based on historical breaches of the Treaty of Waitangi (Te Tiriti o
Waitangi) by the Crown:
(2) Settlement of these claims is progressing through negotiations
between the Crown and each individual iwi and hapū:
(3) At the same time, the Crown has been negotiating other redress with
Ngā Mana Whenua o Tāmaki Makaurau –
(a) that relates to certain maunga, motu, and lands of Tāmaki
Makaurau; and
(b) in respect of which all the iwi and hapū have interests; and
(c) in respect of which all the iwi and hapū will share:
…
(8) On 7 June 2012, the Crown and Ngā Mana Whenua o Tāmaki
Makaurau initialled a deed encapsulating the agreed redress arising
from the Framework Agreement and the Record of Agreement:
(9) On 8 September 2012, representatives of the Crown and Ngā Mana
Whenua o Tāmaki Makaurau signed the deed:
(10) To implement the deed, legislation is required.
[22] The purpose of the Act is stated at s 3:
3 Purpose of Act
The purpose of this Act is to give effect to certain provisions of the
collective deed, which provides shared redress to the iwi and hapū
constituting Ngā Mana Whenua o Tāmaki Makaurau, including by—
(a) restoring ownership of certain maunga and motu of Tāmaki
Makaurau to the iwi and hapū, the maunga and motu being
treasured sources of mana to the iwi and hapū; and
(b) providing mechanisms by which the iwi and hapū may
exercise mana whenua and kaitiakitanga over the maunga
and motu; and
(c) providing a right of first refusal regime in respect of certain
land of Tāmaki Makaurau to enable those iwi and hapū to
build an economic base for their members.
[23] Section 6, which provides an outline of the Act’s overall scheme, records at
subs (5):
6 Outline
…
(5) Part 4 provides for commercial redress, including—
(a) a right of first refusal in relation to RFR land that may be
exercised by the Whenua Haumi Roroa o Tāmaki Makaurau
Limited Partnership (the Limited Partnership) or the rōpū
entities; and
(b) authorisation for the transfer of former deferred selection
properties to the Limited Partnership to give effect to the
collective deed.
[24] Section 7 states:
7 Interpretation of Act generally
It is the intention of Parliament that this Act is interpreted in a
manner that best furthers the agreements expressed in the collective
deed.
[25] Ngā Mana Whenua o Tāmaki Makaurau, or the Tāmaki Collective, is defined
to mean the collective iwi and hapū who entered the Collective Deed, including
Ngāti Te Ata and Ngāti Tamaoho.16
[26] Part 4 of the Act addresses commercial redress and establishes a right of first
refusal process, by which specified Crown land within Tāmaki Makaurau (that is,
RFR land) must be offered to the Limited Partnership or a rōpū entity.17
Section 117
defines RFR landowner as follows:
117 Interpretation
RFR landowner, for RFR land,—
(a) means the Crown, if the land is vested in the Crown or the
Crown holds the fee simple estate in the land; and
(b) means a Crown body, if the body holds the fee simple estate
in the land; and
(c) includes a local authority to which RFR land has been
disposed of under section 129(1); but
(d) to avoid doubt, does not include an administering body in
which RFR land is vested on the effective date or (under
section 130(1)) after the effective date
[27] Section 118(1) defines the land subject to this mechanism as RFR land,
which includes the properties in issue in this proceeding. It states:
118 Meaning of RFR land
(1) In this Act, RFR land means—
(a) the land within the RFR area, but only if, on the effective
date, the land—
(i) is vested in the Crown and not occupied by a tertiary
education institution; or
16
Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 9. See [16] above. 17
Rōpū entity is defined in s 8 as meaning “the Marutūāhu rōpū entity, the Ngāti Whatua rōpū
entity, and the Waiohua Tāmaki rōpū entity”.
(ii) is held in fee simple by the Crown and not occupied
by a tertiary education institution; or
(iii) is a reserve vested in an administering body that
derived title to the reserve from the Crown and that
would, on the application of section 25 or 27 of the
Reserves Act 1977, revest in the Crown; and
(b) former deferred selection RFR land; and
(c) the land described in table 1 of part 4 of the attachments to
the collective deed, but only if, on the effective date, the land
is held in fee simple by a Crown body; and
(d) the land obtained in exchange for a disposal of RFR land
under section 134(1)(c) or 135; and
(e) the land described in table 2 of part 4 of the attachments to
the collective deed, but only if, on the effective date, the land
is—
(i) vested in or held in fee simple by the Crown and
occupied by Unitec; or
(ii) vested in or held in fee simple by Unitec; and
(f) the land described in table 3 of part 4 of the attachments to
the collective deed, but only if, on the effective date, the land
is—
(i) vested in or held in fee simple by the Crown and
occupied by the University of Auckland; or
(ii) vested in or held in fee simple by the University of
Auckland
[28] Section 118(2) records when land ceases to be RFR land. Primarily, this
occurs on transfer to the Limited Partnership or to a rōpū entity or any other person
pursuant to the RFR scheme.18
Additionally, if RFR land is required for another
Treaty settlement, it ceases to be RFR land when notice is given for the land under s
120.19
[29] Relevantly s 120 (like s 119 of the Bill) states:
120 Land required for another Treaty settlement ceasing to be RFR
land
18
Section 118(2)(a). 19
Section 118(2)(d).
(1) The Minister for Treaty of Waitangi Negotiations must, for RFR land
required for another Treaty settlement, give notice to both the RFR
landowner and the Limited Partnership that the land ceases to be
RFR land.
(2) The notice may be given at any time before a contract is formed
under section 127 for the disposal of the land.
(3) In this section, RFR land required for another Treaty settlement
means RFR land that is to be vested or transferred as part of the
settling of historical claims under the Treaty of Waitangi, being the
historical claims relating to acts or omissions of the Crown before 21
September 1992.
[30] Section 121 imposes restrictions on the disposal of RFR land in the following
terms:
121 Restrictions on disposal of RFR land
(1) An RFR landowner must not dispose of RFR land to any person
other than the Limited Partnership or a rōpū entity (or the Limited
Partnership's or rōpū entity's nominee) unless the land is disposed of
under subsection (2) or (3).
(2) The RFR land may be disposed of under any of sections 128 to 141
or under anything referred to in section 142(1) or in accordance with
a waiver or variation given under section 151.
(3) The RFR land may be disposed of within 12 months after the expiry
date of an offer by the RFR landowner to dispose of the land to the
Limited Partnership if the offer to the Limited Partnership was—
(a) made in accordance with section 123; and
(b) made on terms that were the same as, or more favourable to
the Limited Partnership than, the terms of the disposal to the
person referred to in subsection (1); and
(c) not withdrawn under section 125; and
(d) not accepted under section 126.
[31] Subsections (2) and (3) refer to a detailed scheme for disposal, which
includes a requirement to offer RFR land to the Limited Partnership20
and other
contractual matters such as offer expiry date, withdrawal, acceptance,21
and contract
formation.22
Other disposals are also provided for, including disposal to the Crown,23
20
Section 123. 21
Sections 124-126. 22
Section 127. 23
Section 128.
local authorities,24
disposals to give effect to existing obligations,25
disposals under
certain legislation, for public works and other specified public or charitable
purposes,26
and disposals to specified persons.27
[32] Sections 144-147 set out specific notice requirements for the disposal of RFR
land. Relevantly s 145 provides for notice of land ceasing to be RFR land.
Subsections (1)-(3) deal with notice of transfers in accordance with the standard
RFR disposal procedures. Subsections (4)-(6) deal with land in relation to which
notice pursuant to s 120 has been given.
[33] Section 148 provides for the memorialisation of RFR land. The Registrar-
General must record on the register that the land is RFR land as defined in s 118, and
is subject to subpart 1 of Part 4, which restricts disposal, including leasing, of the
land. Section 149 then deals with removal of memorials. The chief executive of
Land Information New Zealand (LINZ) must, before registration of the transfer or
vesting of land described in a notice under s 145(2) or (5) , issue to the Registrar-
General a certificate that, in short, identifies the land, the details of the transfer, and
states that it is issued under subs (1).
The Ngāti Tamaoho negotiations and settlement28
[34] Ngāti Tamaoho signed an agreement in principle with the Crown in
December 2012, recommencing negotiations in August 2015. By mid-April 2016, a
redress package was agreed. This package included the early transfer of the two
properties this proceeding concerns.
[35] On 14 April 2016, officials at the Office of Treaty Settlements (OTS) wrote to
all identified overlapping claimant groups, including Ngāti Te Ata. The letter
explained the overlapping claims process and encouraged Ngāti Te Ata and Ngāti
Tamaoho to reach agreement, offering to assist in any discussion if necessary. OTS
24
Section 129. 25
Sections 131-132. 26
Sections 133-138. 27
Sections 139-141. 28
This account is largely drawn from the evidence of the Minister for Treaty of Waitangi
Negotiations, which was supported by a documentary record and is largely uncontroversial. But
see paragraphs [42]–[51] for Mr Roimata Minhinnick’s comments on the process followed.
advised that if the overlapping claims could not be resolved, the Minister would
make a decision based on the information received from Ngāti Tamaoho and the
overlapping claimants.
[36] Ngāti Te Ata opposed a significant proportion of the redress. Over the next
few months the two iwi tried to meet and OTS continued to offer to facilitate
resolution. OTS also sought further information from Ngāti Te Ata to assist the
Crown’s understanding of the basis of Ngāti Te Ata opposition. This information was
considered by the Minister. OTS also undertook further research which was
reviewed by an independent historian, examining overlapping interests in specific
redress sites offered to Ngāti Tamaoho, including those of Ngāti Te Ata.
[37] Ngāti Te Ata was advised of the Minister’s preliminary decision by letter on
13 July 2016, including that Ngāti Tamaoho had agreed to have the property located
at 112 Bairds Road, Otara (one of the properties under dispute) treated as
commercial rather than cultural redress. The letter noted that officials had yet to
receive specific information from Ngāti Te Ata as to why it objected to the redress
offered to Ngāti Tamaoho.29
On 4 July, Ngāti Te Ata informed OTS it would take
months to respond in writing to every site it opposed, with reasons. Ngāti Te Ata also
sought the reports relied upon by Ngāti Tamaoho, said to support their claims to the
early transfer properties. The reports were not supplied.
[38] Ngāti Tamaoho and Ngāti Te Ata met on 26 July 2016, with OTS officials
attending as observers. At this meeting, Ngāti Te Ata advised it opposed the sale of
the early transfer properties to Ngāti Tamaoho, as the whenua of Te Ata I Rehia was
buried at Matukutureia Mountain.
[39] Following further consideration of these issues, the Minister advised Ngāti Te
Ata of his final decision on 10 August 2016. The early transfer properties were then
included in the Ngāti Tamaoho Deed of Settlement that was signed on 30 April 2017.
29
Mr Minhinnick states neither he nor the Ngāti Te Ata negotiators received this request until 6
July 2016.
The Ngāti Tamaoho Deed of Settlement
[40] For present purposes, the key components of the formal Deed are:
(a) The customary historical account of Ngāti Tamaoho, acknowledgment
of, and apology by the Crown for, historical Treaty breaches.
(b) An acknowledgment that the Deed represents final settlement of
historical claims, releasing the Crown from its obligations and
liabilities.
(c) Cultural redress, including acknowledgment of Ngāti Tamaoho
cultural, spiritual, historical and traditional association with various
areas in Tāmaki Makaurau, and provision for co-governance in
respect of certain areas. Two properties, in Clarks Creek and Karaka,
are also to vest in the Ngāti Tamaoho governance entity on settlement,
with a Hūnua Falls property to vest jointly in Ngāti Tamaoho and
other iwi.
(d) Commercial redress, including a total transfer of value of
$10,300,000.
(e) Explicit terms, in cls 8.1.3, 8.3 and 9.6.1, that the transfer of certain
“early transfer properties” is not conditional on settlement legislation
coming into effect.
[41] The sale and purchase agreement for the early transfer lands was signed on
28 April 2017, the day on which the Minister gave notice under s 120.30
Ngāti Te Ata
[42] Mr Roimata Minhinnick provides a detailed account of the source of the
mana whenua of Ngāti Te Ata. He identified, among other things, the significance of
the maunga, Matukutureia, to Ngāti Te Ata as follows:31
30
It appears that the agreement pre-dated the s 120 notice by a matter of hours. This technically
infringes the RFR scheme, but I do not consider this to be material.
(a) Matukutureia is the mauri of Ngāti Te Ata, where the life-force of the
iwi resides, because the founding ancestor of Ngāti Te Ata, Te Ata I
Rehia, was born on its peak and her whenua (afterbirth) returned to
the whenua (land), embodying the notion of tangata whenua (the
people of the land).
(b) It is located at the end of Wiri Station Rd. Matukutureia was referred
to as Te Tumu Whakarae (“the seat of authority”) where great
meetings of council were held to determine the politics of the region.
It is also the place of a large battle site in which the great Ngāti Te Ata
chief Te Rangi Ha Hautu defended the pa from attack.
(c) Today, Te Mano Whenua o Matukutureia (“the heartland of
Matukutureia”) sits in the cultural shadow of Matukutureia Maunga.
The puhinui awa stream flows from the Manukau Harbour and hugs
the shoreline of Matukutureia Maunga, before drifting past Te
Manurewa o Tamapahure (“The Fling Kite of Manurewa”) and
reaching Te Mano Whenua o Matukutureia, or Barrowcliffe.32
[43] He also records:
Ko Matukutureia te mauri o Ngāti Te Ata
I reira i whanautia ai ia Te Ata I Rehia
O raro iho tona whenua i hoki panumia
I atawhai te tikanga o te tangata whenua
Hei toi ake tatou no Papatuanuku
Matukutureia enshrines the life-force of Ngāti Te Ata
It is where Te Ata I Rehia, the namesake of Ngāti Te Ata was born
And her whenua returned to the whenua
31
Mr Minhinnick is Chief Executive Officer of Te Ara Rangatu O Te Iwi O Ngāti Te Ata Waiohua
Incorporated (192008). 32
I interpret from a photo attached to this commentary that the Great South Road property sits
within this heartland.
Recognising the law that represents the people of the land
Acknowledging Ngāti Te Ata as the offspring of mother earth
[44] Mr Minhinnick also referred to the maintenance of ahi kā and kaitiakitanga
by Ngāti Te Ata.
[45] As he explained:
The issue for Ngāti Te Ata is not only how much land is available for Ngāti
Te Ata settlement when we do settle, but whether there is land available near
to the most prominent cultural feature of Ngāti Te Ata history. Our founding
ancestor, Te Ata i Rehia was born there so it is the place to which the
“mauri” of Ngāti Te Ata is squarely situated. It is also where our tupuna, Te
Rangihahautu fought to hold on to those lands and from that battle the name
of the pa was enshrined, Matukutureia, “The Vigilant Bittern Standing
Alert”.
[46] Mr Minhinnick was highly critical of the processes adopted by the Crown in
respect of both Ngāti Te Ata and Ngāti Tamaoho settlement negotiations. He refers
to, on the one hand, the unilateral decision by the Minister to pause negotiations with
Ngāti Te Ata in 2014. On the other hand, he notes that Ngāti Te Ata was only given
a few weeks to respond to OTS’s invitation to comment on the redress package.
[47] Mr Minhinnick also provided a detailed chronology of events surrounding
engagement with OTS and Ngāti Tamaoho. It is similar to the account given above,
but includes additional salient observations:
(a) On 13 June 2016, OTS requested that Ngāti Te Ata provide rationale
for its opposition to aspects of the Ngāti Tamoho settlement by 17
June 2016, but the letter was not received until 6 July 2016.
(b) Ngāti Te Ata sought kanohi ki te kanohi (face to face) dialogue with
Ngāti Tamaoho, but Ngāti Tamaoho were unwilling to address issues
about cultural associations.
(c) On 28 June 2016, OTS requested Ngāti Te Ata provide further
information, but Ngāti Te Ata responded that it would take months to
respond with reasons to every site it opposed.
(d) On 8 July 2016, Ngāti Te Ata sought reports obtained by Ngāti
Tamaoho said to support their connection to the lands. That request
was refused.
(e) On 19 July 2016, Ngāti Te Ata sought more time, but on 26 July met
with OTS and Ngāti Tamaoho and provided detailed reasons for
opposition to transfer of a number of sites including the Great South
Road site.
(f) On 27 July 2016, Ngāti Te Ata made a further request for engagement.
[48] In his reply affidavit, Mr Minhinnick responds to the report of the
independent reviewer relied on by the Minister, which was only obtained by Mr
Minhinnick as part of these proceedings. He was also highly critical of it, noting:
(a) The author of the report is not identified.
(b) There is an absence of traditional oral or kaumatua customary
evidence.
(c) The material relied upon was not put to Ngāti Te Ata. By contrast, the
material evidence of Ngāti Te Ata’s traditional belonging to the area
has been shared with the Crown.
(d) The historical evidence supports the conclusion that Ngāti Te Ata’s
interests are older and greater than those asserted by Ngāti Tamaoho.
[49] Mr Minhinnick also provided a history in support of Ngāti Te Ata’s superior
ancestral claims to the early transfer properties, referring to historical records. By
way of summary Mr Minhinnick referred to:
(a) Historical records said to establish Ngāti Te Ata’s connection to
properties at Te Karaka and Pukekohe and by contrast, illustrate the
illegitimacy of claims by Ngāti Tamaoho to those lands.
(b) Evidence that Ngāti Tamaoho had attempted sale of land with which
they had a dubious customary connection, including land at Kahawai
and Ramarama.
(c) Historical records said to support the customary basis for the
relationship of Ngāti Te Ata with the Tuhimata Block, near
Ramarama.
(d) Historical accounts of tensions between Ngāti Te Ata and Ngāti
Tamaoho, together with minutes from Crown officials cautioning
against purchase of land without consent of Ngāti Te Ata.
(e) Armed conflict in 1845 and 1846 between Ngāti Te Ata and Ngāti
Tamoho, Ngāti Te Ata victory, and reports that Ngāti Te Ata reclaimed
Pehiakura from Ngāti Tamaoho.
(f) Accounts that following this conflict Ngāti Tamaoho recommenced
selling land from which they had been ousted, and for which they no
longer had any claim in tikanga Māori.
(g) Records showing the Crown was aware of Ngāti Te Ata claims to the
land Ngāti Tamaoho purported to sell.
[50] Finally, Mr Minhinnick complains that the Crown has not afforded sufficient
time and/or opportunity for a collective, consensus based process in accordance with
tikanga for dealing with the early transfer properties. Finally, he observed that none
of the witnesses for Ngāti Tamaoho identified the basis of their claim in tikanga to
the early transfer properties.
Is the decision by the Minister to dispose of the properties for the purpose of an
individual Treaty settlement justiciable?
[51] Mr Kinsler identified two bases for non-justiability:
(a) the principle of non-interference, as the lands form part of the
background to a Settlement Bill which is currently before Parliament;
and
(b) the decision to require lands for a Treaty settlement is the proper
domain of the Executive, not the judiciary, being a matter which is
quintessentially policy driven.
[52] It is well settled that matters contemporaneously before Parliament are non-
justiciable.33
But as Mr Kinsler quite properly noted, the Crown elected to use the
early transfer procedure rather than give effect to transfer through the Ngāti
Tamaoho Settlement Bill. While the transfers form part of the background to the Bill,
they are not subject to the Parliamentary process, so the standard principle of non-
justiability based on non-interference with Parliamentary processes has no obvious
application.
[53] The second ground or principle Mr Kinsler relies on was described recently
by the Supreme Court in Ririnui:34
Courts have treated decisions about Treaty of Waitangi settlements as
inappropriate for judicial review, not simply because they often involve
legislation but also because the issues involved in settlements – such as the
nature, form and amount of redress – are quintessentially the result of policy,
political and fiscal considerations that are the proper domain of the executive
rather than the courts.
[54] The Treaty context itself however does not preclude review.35
In the present
case the decision to require RFR land for an individual Treaty settlement
extinguishes, by way of the notice procedure contained in s 120, the right of first
refusal in respect of those lands enjoyed by the Limited Partnership and rōpū groups.
Put simply, it is a decision to take away a legal right of first refusal conferred by
statute.36
While I accept, absent a clear error of sort present in Ririnui,37
the merits of
33
Te Runanga o Wharekauri Rekohu v Attorney-General [1993] 2 NZLR 301 (CA) at 307-308. 34
Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [89]. 35
At [90]. 36
It is unnecessary to explore the exact nature of the right of first refusal. The Court of Appeal in
Bruce v Edwards [2003] 1 NZLR 515 (CA) at [54] observed that “the prevailing judicial opinion
is that a right of first refusal does not give rise to an interest in land before the occurrence of a
triggering event”. But in the present case, the right of first refusal is memorialised on the
a decision to settle a Treaty claim are typically non-justiciable for the reasons
mentioned in that case, the legality of the s 120 notice, in terms of conformity with
the requirements the Collective Redress Act, is a reviewable matter.38
Does the Minister have the power to dispose of RFR land for the purpose of an
individual Treaty settlement?
[55] Mr Kahukiwa for Ngāti Te Ata contends:
(a) The primary purpose of Collective Redress Act is to give effect to the
Collective Redress Deed which provides for shared redress for the
Tāmaki Collective. Part of that shared redress is a statutory first right
of refusal.
(b) The Act does not confer an express power on the Minister to remove
RFR land: s 120 is simply a notice provision, not an empowering
provision.
(c) No power to remove RFR land should be implied into the s 120 notice
procedure, given the Act’s purpose to achieve collective redress and
the RFR mechanism conferred by the Act.39
(d) This is reinforced by the background to the Deed and the Act, and in
particular the heavy criticism by the Tribunal of the Crown’s previous
approach, which gave exclusive rights to one group:40
The use of ‘predominance of interests’ as a basis for giving exclusive
rights in cultural sites to one group – even when other groups have
affected titles, connoting a legal interest in land.
37 Ririnui v Landcorp Farming Ltd, above n 34, at [90]-[91]. In that case, the Minister had
exercised a public power “based on a material error”, and consequently, had no regard to any
additional policy considerations. 38
The Supreme Court in Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015]
NZSC 27, [2016] 1 NZLR 1, dealing with the Canterbury Earthquake Recovery Act 2011,
emphasised the reviewability of Crown action where the legislation “covers the field”. See
[109]-[146]. By analogy, this principle applies to redress facilitated by the Collective Redress
Act. 39
Mr Kahukiwa, assisted by Mr Kwan-Parsons, cited Bluff Harbour Board v Mayors, Councillors,
and Burgesses of the Borough of Campbelltown (1903) 23 NZLR 126 as authority for this
proposition. 40
Waitangi Tribunal, above n 4, at 96-97.
demonstrable interests that have not been properly investigated – is a
Pākehā notion that has no place in Treaty settlements. Where there
are layers of interests in a site, all the layers are valid. They derive
from centuries of complex interaction with the whenua, and give all
the groups with connections mana in the site. For an external agency
like The Office of Treaty Settlements to determine that the interests
of only one group should be recognised, and the others put to one
side, runs counter to every aspect of tikanga we can think of. …
(e) As such, “the power” rests with all the parties to the collective deed
by virtue of the mutuality of their agreement.
[56] Mr Kinsler for the Minister responds s 120 plainly assumes a power to
remove the RFR land for individual Treaty settlement purposes exists. He adds it
gives effect to cls 6.3 and 6.4 of the Collective Redress Deed.
Assessment
[57] The “absence of power” argument misconceptualises the key issue. Section
120 is a notice provision, the plain effect of which removes identified properties
(such as the early transfer properties) from the RFR scheme. The sole express
statutory criterion for issuing notice is that the land is required for an individual
Treaty settlement. A “power” to remove or dispose of the land is not therefore a
requirement for the purpose of removal of land from the RFR scheme. It occurs by
operation of statute.
[58] To elaborate:
(a) Section 118(2)(d) expressly provides “RFR land required for another
Treaty settlement” ceases to be RFR land once notice is given under s
120.
(b) Section 120 imposes a duty on the Minister to give notice to the RFR
landowner and the Limited Partnership that land ceases to be RFR
land when it is required for another Treaty settlement.
(c) Once the Minister’s notice is given, the RFR landowner must give
notice to the chief executive of LINZ that the land ceases to be RFR
land.41
(d) The chief executive must issue to the Registrar-General a certificate in
respect of the property and the s 120 notice.42
(e) The Registrar-General must then remove any memorial on the title
identifying the land as RFR land.43
[59] This scheme gives effect to cls 6(3) and (4) of the Collective Redress Deed,
reinforcing the conclusion that the literal effect of ss 118(2)(d), 120, 145(5) and
149(2) was intended.
[60] In Bluff Harbour, cited by Mr Kahukiwa, Williams J granted an injunction
against a purported exercise of a statutorily conferred power to compulsorily acquire
land to construct waterworks. The Council had previously granted a licence to use
the affected lands for the purpose of waterworks, and sought to use the power to take
over the existing waterworks. In reaching this conclusion, the Judge cited the rule of
interpretation laid down by Lord Cottenham and approved by Lord Westbury in
Simpson v Staffordshire Waterworks Company that it is incumbent upon the company
seeking to take land:44
… to prove clearly and distinctly from the Act of Parliament the existence of
a power which they claimed a right to exercise; and if there was any doubt
with regard to the extent of the power claimed by them that doubt
undoubtedly should be for the benefit of the landowner, and should not be
solved in a manner to give the company any power that was not most clearly
and expressly defined in the statute.
[61] The policy of the law to narrowly construe enactments purporting to enable
compulsory acquisition of property is undoubted.45
But this case is not about the
41
Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 145(5). 42
Section 149(2). 43
Section 149(5). 44
Bluff Harbour Board v Mayors, Councillors, and Burgesses of the Borough of Campbelltown,
above n 39, at 129, citing Simpson v Staffordshire Waterworks Company 34 LJ Ch 380. 45
Waitakere City Council v Estate Homes [2006] NZSC 112, [2007] 2 NZLR 149 at [45], citing
Taggart, “Expropriation, Public Purpose and the Constitution”, in Forsyth (ed), The Golden
Metwand and the Crooked Cord (1998), 104-105. In this case, however, the Supreme Court
compulsory taking of land by the Crown. Rather, the Crown is simply removing
Crown land from the RFR scheme to settle an individual Treaty claim. It needs no
additional “power” of the kind lacking in those cases. The early release of the two
properties under the Collective Redress Act is simply a function of the giving of
notice pursuant to s 120, with no antecedent requirement to exercise a statutory
power of removal or disposal. The real issue, addressed below, is whether the
Crown’s decision to require RFR land for an individual Treaty settlement is fettered
by the Collective Redress Act.
[62] If Mr Kahukiwa were to advance a broader challenge, namely that the
Minister does not have a power per se to dispose of Crown lands for Treaty
settlement purposes, I would reject it for the reason stated by Mr Kinsler. The
existence of a power to dispose of Crown lands for Treaty settlement purposes is
plainly assumed by the Collective Redress Deed and the Act and is incidental to their
effective operation, including for the purpose of requiring RFR land for individual
Treaty settlements.46
[63] Accordingly, the claim based on absent power is dismissed.
Is a decision by the Minister to dispose of RFR land for Treaty settlement
purposes unreasonable where another mana whenua iwi objects to it and has
taken steps to resolve the matter?
[64] Mr Kahukiwa submits the entire purpose of the Collective Redress Deed and
Act was to enable specified lands to be managed through a collective iwi process so
that mana whenua could be properly recognised in accordance with tikanga. This, he
says, gave effect to the directions given by the Waitangi Tribunal and the intentions
of the Tāmaki Collective. The individual Treaty settlement exception contemplated
at cl 6 of the Deed and s 120 of the Act has to be interpreted and applied in light of
noted that the ordinary application of planning law does not extinguish existing rights because it
does not constitute a “taking”. 46
See R (New London College Ltd) v Home Secretary [2013] UKSC 51, [2013] 1 WLR 2358 at
[28]-[29], per Lord Sumption, and [34]-[36], per Lord Carnwath. See also Philip Joseph
Constitutional and Administrative Law in New Zealand (4th
ed, Thomson Reuters, Wellington,
2014) at [18.3.3(3)]. The power to dispose of land in this context may also derive from the
prerogative of the Crown to discharge its obligations arising under the Treaty. In terms of
prerogative powers, see Laker Airways Ltd v Department of Trade [1977] QB 643 (CA). As this
aspect was not argued before me, I do not reach a final view.
this purpose. The error made by the Attorney-General was to remove the two early
transfer properties for Ngāti Tamaoho’s Treaty settlement without first exhausting
the collective diplomacy required by the Act, in accordance with tikanga. In these
circumstances, Mr Kahukiwa claims the s 120 notice was unreasonable.
[65] Mr Kinsler responds that the ability to remove land from the RFR scheme
for individual Treaty settlements was always intended by the signatories of the Deed.
He also contends:
(a) Ngāti Te Ata’s approach effectively amounts to a veto preventing the
vesting of land for individual Treaty settlement purposes.
(b) A veto of this kind would have been a very notable aspect of the
collective redress agreed to, and one would expect the Collective
Redress Deed or Act to record it.
(c) By contrast, the Deed and the Act expressly envisage that RFR land
may be required for an individual Treaty settlement and provide a
process for that to occur.
Threshold test
[66] Ordinarily a decision will be unreasonable in a public law sense if it is so
unreasonable that no reasonable decision-maker could ever have reached it in the
circumstances. This test is known as the Wednesbury unreasonableness test.47
However, the Wednesbury reasonableness test has been doubted,48
particularly in
cases involving fundamental rights. The courts tend to be less tolerant of Crown
47
Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223; see
also Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA). 48
Most recently, in Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR
508, an alternative formulation of this threshold, consistent with the grounds on which the court
will identify an error of law (as stated in Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3
NZLR 721 at [26]) has been proposed: see Hu at [22]-[32]. On this formulation, a decision will
be unreasonable where the decision-maker’s decision is so unsupportable as to amount to an
error of law, because proper application of the law requires a different answer. This may arise
where the decision is not supported by evidence, where the evidence contradicts the decision, or
where the only reasonable conclusion contradicts the determination.
interference with such rights.49
As this aspect was also not fully argued, I will adopt
the most favourable approach to Ngāti Te Ata.
Assessment
[67] As Mr Kahukiwa submits, in general terms the purpose of the Collective
Redress Act is to enable shared redress via specified processes for dealing with
Crown land in Tāmaki Makaurau. This is evident from the background to the Act,
including the Tribunal claim and report,50
the Collective Redress Deed, the Act’s
purpose section, and the detailed and carefully scripted scheme of the Act as it
relates to various forms of redress. An interpretation of the Act, including s 120 and
related sections, that is consistent with this purpose, is to be preferred, as is one that
best furthers the Collective Redress Deed.51
[68] But the object and effect of cl 6 of the Deed and s 120 is clear. It is a notice
provision. It imposes a duty, not a discretionary power, on the Minister to notify the
RFR landowner and Limited Partnership that specified land is required for an
individual Treaty settlement. Provided the land is required for that type of settlement,
once notice is issued the land ceases to be RFR land. There is no room to overlay the
explicit words at s 120 with an additional collective decision-making process once
the decision to require specified land for an individual Treaty settlement has been
made.
[69] Similarly, a decision to require land for an individual Treaty settlement
cannot be unreasonable simply because another iwi may have a genuine tikanga
based interest in that land, and because consensus is not achieved. I agree with Mr
Kinsler that would effectively amount to a veto, disenabling the use of land for
individual Treaty settlements. This cannot be right, given the clear effect of s 120 of
the Act and cl 6(3) of the Deed.
49
See Philip Joseph, above n 46, at [24.2], [24.5.1]. 50
It should be noted that the claim in relation to commercial redress was primarily concerned with
providing all iwi with sufficient information about available commercial redress. Notably, the
primary recommendation pertaining to commercial redress was: “With respect to commercial
redress, we recommend that the Crown funds the other tangata whenua groups in Tāmaki
Makaurau to enable them to analyse the redress on offer to Ngāti Whātua o Orākei, and form a
view on what other available commercial redress is comparable.” See Waitangi Tribunal, above
n 4, at 108. 51
Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 7.
[70] This disposes of the pleaded claims. However, for completeness, I have
examined whether the Minister has otherwise acted in good faith and reasonably. In
doing so, I apply a standard which is not so obviously discordant with the scheme.
Was the Minister’s decision otherwise unreasonable?
[71] The requirements of good faith and reasonableness in this context are not
capable of precise definition and, in any event, were not fully argued. But, again
adopting an approach favourable to Ngāti Te Ata, there is a principled basis for the
proposition that the Minister could not in good faith52
or reasonably trigger the s 120
notice procedure without first considering the claims of other iwi with a genuine
interest in the RFR lands, and to the extent practical, facilitating them.53
As the
Tribunal observed, in awarding land as commercial redress, the Crown should
account for the possible consequences for other iwi and hapū with cultural ties to
that area.54
Section 7 of the Collective Redress Act explicitly directs readers to
interpret it in a manner that “best furthers the agreements expressed in the collective
deed”. Furthermore, context permitting, the Treaty of Waitangi is an aid to
interpretation.55
It is difficult to think of a more permissible context, absent express
incorporation. It can be assumed therefore operation of s 120 was not intended to
facilitate breach of the Crown’s duties under the Treaty to other iwi and hapū with
genuine tikanga based interest in land in dispute.
[72] Having reviewed the evidence, I am satisfied the Minister acted in good faith
and reasonably. First, the Minister was well aware of Ngāti Te Ata concerns and
endeavoured to facilitate consensus between Ngāti Te Ata and Ngāti Tamaoho.
Second, OTS sought information from Ngāti Te Ata to assist the Crown
52
The requirement to exercise statutory powers in good faith is uncontroversial: Westminster
Corporation v London and North Western Railway Co [1905] AC 426 (HL) at 430. It is also
consistent with policy of the law (mentioned at [58] above) that powers extinguishing property
rights should be construed narrowly. 53
This aligns with the approach taken by the Supreme Court in Quake Outcasts v Minister for
Canterbury Earthquake Recovery, above n 38. The Court found that the Crown’s ability to deal
with “red zone” land in Christchurch was subject to the requirements of the Canterbury
Earthquake Recovery Act 2011: see [109]-[146]. The Court also found that, in conformity with
the Act’s purpose to provide for the recovery of greater Christchurch communities, the recovery
of the red zone communities had to be considered, and to the extent practical, facilitated: see
[172]-[181]. 54
Waitangi Tribunal, above n 4, at 99. 55
Ngaronoa v Attorney-General [2017] NZCA 351 at [39]-[52] and the cases cited therein.
understanding of the basis of Ngāti Te Ata’s opposition to the proposed redress, and
the Minister considered the information provided. Third, further research was
undertaken by OTS into the customary interests of both iwi in the specific early
transfer sites that Ngāti Te Ata had challenged. Fourth, this research was reviewed
by an independent historian. Fifth, modifications were made to Ngāti Tamaoho’s
settlement package to meet concerns raised by Ngāti Te Ata, including the
recategorisation of the Bairds Road property as commercial rather than cultural
redress.
[73] Sixth, Ngāti Te Ata was given the opportunity to comment on the Minister’s
proposed settlement package and the preliminary conclusion reached by the Minister,
namely that Ngāti Tamaoho had a sufficient interest in the sites to warrant the
Crown’s offer of redress and that the Crown considered there was sufficient
alternative commercial redress properties available for Ngāti Te Ata in Tāmaki
Makaurau. Seventh, Ngāti Te Ata also had a further opportunity to meet with Ngāti
Tamaoho to resolve their respective claims. Eighth, the Minister was aware that
Ngāti Te Ata identified the early transfer properties as sites of particular cultural
significance, as the whenua of Te Ata I Rehia was buried at Matutukureia
Mountain.56
[74] I acknowledge the forthright criticism made by Mr Minhinnick about the
process adopted, the Crown research and the basis for the claim made by Ngāti
Tamaoho in respect of the early transfer properties. But it must be remembered that
this is a judicial review proceeding, not a merits appeal. It is not enough to present
evidence that might support a different outcome. The decision must be shown to be
unreasonable. In this context, I am able to deal with Mr Minhinnick’s criticisms
briefly.
56
Other evidence also supports this. Mr Michael Dreaver, former Chief Negotiator for Tāmaki
Makaurau, Hauraki and Kaipara-Mahurangi, acknowledged the transfer of properties in iwi
specific settlements “has involved due thought and consideration by the Crown”, and that “the
Crown has considered any objections and in some cases made changes to individual settlement
offers”. On the evidence of Mr Dennis Kirkwood, trustee and Deputy Chairperson of the Ngāti
Tamaoho Settlement Trust, Ngāti Tamaoho has previously ceased claims in respect of other sites
due to contrary claims by other iwi, including Ngāti Te Ata.
[75] The competing customary claims of Ngāti Te Ata and Ngāti Tamaoho
concern matters of considerable historical complexity and on which competing
views can be validly held. Ultimately, there was a sufficient basis upon which the
Minister could conclude that Ngāti Tamaoho had a legitimate historical connection to
the early transfer properties. Indeed, Mr Minhinnick acknowledged that Ngāti
Tamaoho had connection to the affected rohe through its whakapapa links to Ngāti
Te Ata.57
[76] Furthermore, for the purpose of judicial review, it was well within the remit
of the Minister, both as to the assessment of fact and in terms of competing
historical, cultural and policy considerations, to reach the conclusion that,
notwithstanding the ancestral connection of Ngāti Te Ata to the early transfer
properties, they should be required for settlement of the individual claim by Ngāti
Tamaoho as commercial redress.
[77] Finally, contrary to the premise implicit in Mr Minhinnick’s criticism, the
Minister was not, in the context of commercial redress, engaged in a definitive
evaluation of the relative strength of competing interests for the purpose of
allocating lands to iwi with stronger claims. To do so would invite the type of
criticism levelled at the Minister by the Tribunal in The Tāmaki Makaurau
Settlement Process Report, for adopting a “predominant” interest approach to
recognition of customary interests. Once this is properly understood the significance
of Mr Minhinnick’s criticisms are greatly diminished and fall short of showing
unreasonableness or lack of good faith of a reviewable kind.
[78] For avoidance of doubt, what I say here should not influence what the
Tribunal might think about the process adopted on a full inquisitorial analysis, in
light of the principles of the Treaty of Waitangi.
Outcome
[79] The Minister’s decision is justiciable.
57
Reinforcing the legitimacy of their proposed commercial redress, there is also evidence that in
terms of the RFR process, Ngāti Tamaoho was the only iwi to signal an interest in the Bairds
Road site: Affidavit of Christine Hertzog in Opposition to Application for Judicial Review, dated
22 June 2017, at [7].
[80] No power of disposal was required for the purpose of triggering the s 120
procedure, but in any event, the existence of a power to dispose of Crown land for
Treaty settlement purposes in this context is reasonably incidental to the effective
operation of the Collective Redress Act, including s 120.
[81] The Minister’s decision to require the early transfer properties for an
individual Treaty settlement was not unreasonable.
[82] Accordingly, the application for review is dismissed.
[83] The interim declaration made at hearing is set aside.
Costs
[84] As requested by the parties, leave is reserved to file submissions on costs, no
longer than three pages in length, if costs cannot be agreed.