Roebuck v Attorney-General [2022] NZHC 3341 (12 December 2022)

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-404-422
[2022] NZHC 3341

UNDER	Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules
IN THE MATTER	of a decision of the Crown, through the Minister for Treaty of Waitangi Negotiations, to proceed to sign a Ngāti Pāoa Deed of Settlement
BETWEEN	DANELLA TAPAHINGA ROEBECK First Applicant QUEENIE BERNADETTE MOHI Second Applicant PAULINE OGDEN Third Applicant
AND	THE ATTORNEY-GENERAL First Respondent THE NGĀTI PĀOA IWI TRUST Second Respondent

	CIV-2021-404=423
UNDER	the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules
BETWEEN	THE NGĀTI PĀOA TRUST BOARD Applicant
AND	THE WAITANGI TRIBUNAL First Respondent THE ATTORNEY-GENERAL Second Respondent THE NGĀTI PĀOA IWI TRUST Third Respondent

	CIV-2021-404-424
UNDER	the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules
BETWEEN	THE NGĀTI PĀOA TRUST BOARD Applicant
AND	THE ATTORNEY-GENERAL First Respondent THE NGĀTI PĀOA IWI TRUST Second Respondent

Hearing:	21–22 November 2022
Appearances:	D A C Bullock and S J Humphrey for Applicants in CIV-2021- 404-422 L Black for Applicant in CIV-2021-404-423 and CIV-2021-404- 424 J R Gough, M G A Madden and A Ou for First Respondent in CIV-2021-404-422 and CIV-2021-404-424 and Second Respondent in CIV-2021-404-243 M K Mahuika and T N Hauraki for Second Respondent in CIV- 2021-404-422 and 424 and Third Respondent in CIV-2021-404- 423
Judgment:	12 December 2022

Judicial review of Waitangi Tribunal urgency decision [226] Waitangi Tribunal proceedings [229]

[1] Three proceedings have been heard together, all involving Ngāti Pāoa¹and the concerns of some members of Ngāti Pāoa regarding the settlement of Ngāti Pāoa’s claims under Te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty).

[2] The three named applicants in proceeding CIV-2021-404-422 (the 422 proceeding) are all kuia of the Kauahi hapū of the iwi Ngāti Pāoa (the Kauahi applicants).²The first named applicant in the 422 proceeding is a trustee and co-chair of the Ngāti Pāoa Trust Board, which is the applicant in both CIV-2021-404-423 (the 423 proceeding) and CIV-2021-404-424 (the 424 proceeding). The applicants together advised the Court that the claims made in the 422 proceeding are essentially the same as the claims made in the 424 proceeding. I use the word ‘applicants’ to refer to the applicants in both the 422 and 424 proceedings and refer to them separately when necessary. The 423 proceeding is different, as it is a challenge by the Ngāti Pāoa Trust Board against a Waitangi Tribunal decision declining urgency to hear their claims.³

[3] The applicants contend that in deciding that it was satisfied that the people of Ngāti Pāoa had ratified the Ngāti Pāoa Deed of Settlement, the Crown acted unlawfully. The applicants say that this Court should declare this and related decisions unlawful and set them aside, along with the Deed of Settlement. Additionally, the Ngāti Pāoa Trust Board contends that the decision of the Waitangi Tribunal to refuse urgency for the hearing of its claim is unlawful and should be set aside with a direction the Tribunal reconsider its decision.

[4] The Attorney-General and the Ngāti Pāoa Iwi Trust as respondents reject these claims.

[5] I note that while these proceedings were filed in 2021, the applicants’ amended statements of claim are dated 12 October 2022. Those revised claims followed the completion of discovery in mid-2022 and the applicants’ efforts to engage with the Crown about their concerns.

[6] The Crown indicated that the Ngāti Pāoa Settlement Bill is to be introduced to the House of Representatives no earlier than 13 December 2022. The applicants filed an application for interim orders on 28 October 2022. The parties were advised by the Court that urgency could be granted for a hearing but that it was highly unlikely that urgency could be allowed for two hearings before the end of 2022; the parties agreed to proceed to an early substantive fixture.⁴

[7] Within parts of Ngāti Pāoa, there is a long history of disagreement as to the appropriate progression of the iwi’s settlement of its Treaty claims with the Crown. As much of the detail is relevant to the applicants’ claims, a rather fulsome chronology of events up to this point is necessary.

[8] In November 2004, the Ngāti Pāoa Trust was established under the Charitable Trusts Act 1957 and in December 2004 the Ngāti Pāoa Trust Board (the Trust Board) was incorporated.

[9] In 2008, the Tāmaki, Hauraki and Marutūāhu Collectives were established to negotiate collective redress for iwi and hapū with shared interests in the Kaipara. Tāmaki Makaurau and Hauraki regions. Ngāti Pāoa is a member of all three collectives. In 2009, groups in those regions who did not already hold Crown recognised mandates were invited by the Minister for Treaty of Waitangi (ToW) Negotiations to hold interim mandate hui to elect interim negotiators and determine whether to enter into negotiations with the Crown. Between late 2009 and May 2010, members of the Ngāti Pāoa claimant community resolved to elect interim negotiators to enter into Treaty settlement negotiations on behalf of Ngāti Pāoa.

[10] The Trust Board held three mandate hui in March 2011 as well as a hui-ā-iwi in April 2011 to allow the iwi of Ngāti Pāoa to elect and appoint their negotiators directly. Mr Rawiri⁵and Mr Wilson were elected. In May 2011 the Trust Board’s

[11] The Crown and the three collectives referred to above progressed Framework Agreements which, amongst other matters, outlined the process for ongoing negotiations for collective redress for the shared interests in the regions. Between 2010 and June 2013, the interim (and then mandated) negotiators entered into various Framework Agreements and some other agreements with the Crown on behalf of Ngāti Pāoa as steps towards reaching a full and final Treaty settlement.

[12] In 2011, the Māori Land Court vested the Waiheke Farm Station (the Farm) and assets of the Waiheke Station Trust in the Trust Board as responsible trustee. The Farm had initially been gifted as redress to a trust to be held for the benefit of all members of Ngāti Pāoa following the Waitangi Tribunal report on the Waiheke Island claim (Wai 10) in 1987. It had since been vested in Pāoa, the eponymous ancestor, in 1989 and changed to Māori freehold land in 1998.

[13] In 2012 and 2013 respectively, the Ngāti Pāoa claimant community ratified the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Deed and the Pouara Farm On-Account Deed of Settlement, using the register of the claimant community held by the Trust Board.

[14] In 2013, it was believed that settlement of the Ngāti Pāoa Treaty claim was imminent. A Post Settlement Government Entity (PSGE) was required to receive redress from the Crown as a result of the iwi’s Treaty settlement. As a result, the Ngāti Pāoa Iwi Trust (the Iwi Trust) was established as the Ngāti Pāoa PSGE. This followed a Crown approved ratification process where adult members of Ngāti Pāoa were given the opportunity to vote. The Iwi Trust has (or will) also received redress in relation to the Collective Redress matters mentioned earlier.

[15] In July 2015, eight of the ten Trust Board trustees’ terms expired, with the other two expiring in December 2015. The result was that, until March 2017 (when ten new trustees were elected), the Trust Board was not operating in accordance with its Trust Deed and was considered by the Māori Land Court to be in “legal abeyance”.⁶

[16] It appears that around this time, Mr Rawiri and Mr Wilson (the negotiators) began reporting to the Iwi Trust in relation to settlement negotiations.

[17] Late in 2015, the Minister for ToW negotiations wrote to the Trust Board expressing his concern with the entity’s role in mandate maintenance and supporting the negotiators, noting that trustee elections needed to occur.

[18] In February 2016, a hui-ā-iwi was called by the Trust Board and the Iwi Trust. Several resolutions were passed. Relevant for present purposes is that the mandate of the negotiators, Mr Rawiri and Mr Wilson, was reaffirmed and the Trust Board and the Iwi Trust were to work together to reaffirm entity mandate. A second hui was called in April 2016 by the Iwi Trust where the claimant community reaffirmed the negotiators and the Trust Board as the mandated entity and directed the Trust Board to report to the Crown on how it had kept the iwi informed of progress with negotiations.

[19] In May 2016, the Minister wrote to the Trust Board noting that vacant trustee positions on the Trust Board needed to be attended to and trustee elections held, for the Crown to have confidence the Trust Board had the legal authority to act on behalf of the Ngāti Pāoa claimant community. In June 2016, the Crown met with the Trust Board, the Iwi Trust, and Mr Rawiri. There was agreement that the priority was to close negotiations and that there should be one entity to represent Ngāti Pāoa and this should be the Iwi Trust so that all Ngāti Pāoa’s assets would be held in one place. It was also agreed that a full board of trustees should be elected to the Iwi Trust.

[20] In September 2016, the Crown was advised that another hui-ā-iwi was organised where a resolution to merge the Trust Board and the Iwi Trust was defeated and a resolution for the Trust Board to hold elections was passed instead. In October 2016, on the application of Mrs Roebeck, the High Court ordered the establishment of a validation committee to compile an updated register of the Trust Board’s members and to oversee the election of new trustees to the Trust Board.

[21] The negotiators for Ngāti Pāoa initialled the Pare Hauraki Collective Redress Deed in December 2016 and this was ratified through a process over February to March 2017 led by the negotiators with support from the Iwi Trust. Also, in March 2017, the Trust Board held a Special General Meeting and elected ten new trustees and advised the Crown of this. In April 2017, the Iwi Trust held a Special General Meeting and resolved to appoint a further five trustees.

[22] The negotiators initialled the Ngāti Pāoa Deed of Settlement in August 2017. This occurred without the active involvement of the Trust Board.

[23] On 11 September 2017, the Crown wrote to counsel for the Trust Board to advise that ratification of the Ngāti Pāoa Deed of Settlement was the next step and encouraged the Trust Board, Iwi Trust and mandated negotiators to work together to ensure as many of the claimant community as possible have a say on ratification of the Deed of Settlement. By letter dated 19 September 2017, counsel for the Trust Board raised concerns as to process, (including as to its role and as to the whakapapa status of some on the Iwi Trust register) leading to various meetings and correspondence between the lead Crown negotiator on behalf of the Crown and the Trust Board. The Trust Board emphasised its concerns about process and whakapapa while the Crown emphasised that the Board did not have a monopoly on running a ratification process.

[24] The Trust Board subsequently filed two applications in the Māori Land Court, seeking:

[25] Around this time, Mr Rawiri resigned as one of the mandated negotiators. In July 2018, the Trust Board appointed its co-chair Mr Harry Williams as replacement interim negotiator.

[26] The Trust Board and Iwi Trust agreed to adjourn any hearing before the Māori Land Court as the matters agreed at the mediation were still progressing. However, in August 2018 counsel for the Iwi Trust wrote to counsel for the Trust Board advising that no agreement had been reached on the definition of Ngāti Pāoa in whakapapa discussions and as a result the mediation had been unsuccessful. This was despite the definition of Ngāti Pāoa in the initialled Ngāti Pāoa Deed of Settlement having been previously accepted by the Ngāti Pāoa claimant community through the ratification process for the establishment of the Iwi Trust.

[27] In September 2018, the Iwi Trust filed an application under s 30 of Te Ture Whenua Māori Act 1993 seeking a review, amendment or setting aside of a 2009 order of the Court which determined the Trust Board was the most appropriate body to

[28] Also in September 2018, the Office of Treaty Settlements wrote to the Trust Board about the Ngāti Pāoa path to settlement including seeking agreement that the ratification process be undertaken by the Trust Board. A hui-a-iwi was called by Mr Wilson with support from the Iwi Trust, at which a vote of no confidence in the Trust Board as mandated entity was passed. Further resolutions affirmed Mr Wilson as negotiator and did not affirm Mr Williams as negotiator. In October 2018, the Trust Board raised concerns with Mr Wilson about how he was conducting himself as negotiator.

[29] In November 2018, the Iwi Trust convened its full board for the first time at a special general meeting, having appointed five further trustees. Additionally, in November, the Minister for ToW Negotiations wrote to Mr Wilson, the Trust Board and the Iwi Trust indicating that mandate concerns could delay settlement and offering to fund facilitation to ease tensions between those parties. In December 2018, the Crown wrote to the Iwi Trust confirming the amendments required to its trust deed to meet the standard requirements for accountability and transparency in consideration of the on-account redress it had already received and the time that had elapsed since settlement was meant to occur.

[30] Also in December 2018, the Māori Land Court set an end date to the s 30 order made in 2009 which had appointed the Trust Board as an entity for RMA and LGA consultation.⁸The Court found that at least during the period between 2015–2017 the Trust Board was legally inoperative, and that the Trust Board was no longer representative of Ngāti Pāoa. It also directed the parties to mediation. Although there was an appeal by the Trust Board to the Māori Appellate Court in which the Trust

[31] In February 2019 Mr Wilson and Mr Rawiri signed the Pare Hauraki Deed for Ngāti Pāoa (despite Mr Rawiri having earlier submitted his resignation as negotiator to the Trust Board).

[32] In March 2019 Te Arawhiti¹⁰met with representatives of the Trust Board and Iwi Trust and discussed matters relating to mandate, ratification and the position of negotiators. In April 2019 the Trust Board held an Annual General Meeting (AGM) where those attending voted to remove the Farm asset consolidation proposal from the Ngāti Pāoa Deed of Settlement, to reconfirm the Trust Board’s mandate and to remove Mr Wilson as negotiator and replace him with Mr Williams. Nonetheless, Mr Wilson continued to act as negotiator for Ngāti Pāoa.

[33] In May 2019, the Crown provided an offer to Mr Wilson and Mr Rawiri, as well as the Iwi Trust, in relation to the opportunity to buy part of Point England (Kiano) Reserve. Also in May 2019, Te Arawhiti wrote to Mr Wilson, the Trust Board and the Iwi Trust advising it did not consider it could rely on the resolutions presented at the Trust Board AGM because of concerns over who was able to vote. Te Arawhiti sought a joint meeting of all parties. This occurred on 19 June 2019, for the purpose of discussing proceeding to ratification. The Trust Board refused to participate in the meeting because Mr Rawiri and another were also at the meeting, but the meeting continued.¹¹

[34] On 21 June 2019, Te Arawhiti wrote to the Trust Board, the Iwi Trust and Mr Wilson advising that Te Arawhiti would continue to engage with those who were willing to proceed on steps towards commencing ratification and the requirements of that process. Over the second half of 2019, the Iwi Trust and Te Arawhiti communicated about the Iwi Trust’s proposed ratification process.

¹¹Those attending on behalf of the Trust Board considered that it was insulting and a breach of tikanga to allow Mr Rawiri and another to attend the meeting without their prior knowledge and consent.

[35] In December 2019, the Crown finalised its alternative offer to the Point England redress. Te Arawhiti advised the Iwi Trust that negotiations on the Deed of Settlement were complete and revisiting the mandate for this purpose was not required, although seeking a mandate for future harbours negotiations remained open.

[36] On 31 December the Iwi Trust wrote to the Trust Board regarding its proposed mandate and ratification processes. In that letter, the Iwi Trust advised the Trust Board that it had formally commenced processes for ratification of the Deed of Settlement and seeking a mandate for settlement negotiations. The Iwi Trust invited the Trust Board to submit its register to Electionz, the independent company running the voting process, to ensure the maximum participation of Ngāti Pāoa members.

[37] In January 2020, the Iwi Trust and Mr Wilson commenced separate ratification processes for the Deed of Settlement and each also raised mandate matters. Communications subsequently occurred in January and February 2020 which are particularly relevant to the applicants’ claims.

[38] On 16 January, Te Arawhiti emailed the Trust Board, Iwi Trust and Mr Wilson advising that multiple parallel processes may cause “significant confusion” and affirming the Crown’s “duty to act in a way that supports and facilitates relationships between and within iwi”.

[39] On 24 January, Te Arawhiti wrote an open letter to the people of Ngāti Pāoa about mandate and ratification. This letter confirmed that Te Arawhiti did not think that at that point of the settlement process, the Ngāti Pāoa mandate needed to be reconsidered, because settlement negotiations had been concluded. It pointed out that the next step was ratification, which was usually led by the mandated entity but did not have to be. The letter also noted that two ratification processes had commenced, by Mr Wilson and the Iwi Trust respectively, and that Mr Wilson sought confirmation of his mandate as negotiator and the reappointment of Mr Rawiri as a mandated negotiator while the Iwi Trust also sought support for it as the mandated entity for future negotiations, able to appoint negotiators. Te Arawhiti expressed its view that one ratification process involving the Trust Board, the Iwi Trust and the negotiators would be preferable, and it had consistently encouraged the three parties to work

[40] On 29 January 2020, Te Arawhiti wrote to Mr Wilson, the Iwi Trust and the Trust Board regarding the two mandate and ratification processes that had commenced. Te Arawhiti asked that the ratification processes stop for the mandate discussions to occur. However, Mr Wilson and the Iwi Trust did not agree to pause their processes, as they had already been publicly advertised.

[41] On 19 February 2020, the Trust Board advised Te Arawhiti it would not commence a further ratification process and said it considered the two processes underway invalid. It foreshadowed litigation. The Trust Board proposed working with Te Arawhiti on a new robust and comprehensive mandate process.¹²

[42] Also on this date, Te Arawhiti wrote a further open letter to the Ngāti Pāoa claimant community seeking to address any confusion with the two ratification processes and encouraging participation in either or both processes, as it was said that both were essentially identical. The ratification resolutions on which voting was sought related to support for the Deed of Settlement, the alternative Point England redress and transfer of all assets and liabilities held by the Waiheke Station Trust to the Iwi Trust. It was only the mandate resolutions that differed within the two processes.

[43] On 22 February 2020, the Kauahi hapū wrote to the Crown asserting that only the Trust Board held the mandate, doubting that the Iwi Trust had ever been established legitimately, opposing the ratification processes and raising concerns about the registers used and the risk of eligible voters missing out on the opportunity to participate. Litigation was foreshadowed. On 28 February, Te Arawhiti wrote to the Kauahi hapū to ensure that they were aware they had the right and ability to participate in the ratification processes that were underway.

¹²Mr Roebeck confirms in his affidavit that this letter is misdated as 19 January 2020.

[44] The ratification processes planned by the Iwi Trust and Mr Wilson took place. This involved sending out information and voting packs, newspaper advertisements, social media posts and the holding of hui.¹³By mid-March 2020, the voting processes, managed by the independent election company, Electionz, were completed.

[45] On 11 May 2020, the Iwi Trust wrote to Te Arawhiti providing a report on its ratification process. This included the Iwi Trust validation process for new registrations and special votes. The Iwi Trust’s whakapapa validation committee, validating new registrations and special votes, was constituted in accordance with its Trust Deed. The report also discussed why some registrations or special votes could not be validated, and the reasons why. The Iwi Trust expressed its view that the Crown should rely on its voting results rather than those from Mr Wilson’s ratification process.

[46] In June 2020, Te Arawhiti and Te Puni Kōkiri officials briefed the Minister for ToW negotiations and the Minister for Māori Development on the ratification processes undertaken by Mr Wilson and the Iwi Trust.

[47] The briefing paper records that 221 of the 550 (40 per cent) claimant community members registered to participate in Mr Wilson’s process voted and the results were:

[48] It also records that 418 out of the 907 (46 per cent) claimant community members registered to participate in the Iwi Trust’s process voted and the results were:

[49] The Ministers approved the recommendations made by officials, including that the ratification processes demonstrated sufficient support from Ngāti Pāoa for the Deed of Settlement and for the Iwi Trust, Mr Wilson and Mr Rawiri to sign it.

[50] A hui was held between the Crown, the negotiators and the Trust Board to discuss the mandate and ratification processes on 23 June 2020. The Trust Board raised concerns about, amongst other things, the registers used and that members of the Trust Board had not received the information and voting packs. The Iwi Trust was invited to the hui but did not attend.

[51] On 1 July 2020 the Minister for ToW Negotiations and the Minister for Māori Development wrote to the Iwi Trust, the Trust Board and Mr Wilson to advise their agreement that the ratification results showed sufficient support from Ngāti Pāoa iwi members for the Crown and Ngāti Pāoa to enter into the settlement.¹⁴

[52] On 7 July 2020, the Trust Board filed an urgent application in the Waitangi Tribunal alleging breaches of the Treaty resulting in prejudice arising from Crown actions in relation to the settlement process and seeking an urgent hearing. The Trust Board wrote to the Minister for ToW Negotiations seeking, among other things, confirmation from the Crown it would not rely on the ratification results of the processes run by Mr Wilson and the Iwi Trust. The Minister responded, indicating he

¹⁴As noted at [62], this decision is referred to as “the Ratification Decision” by the applicants.

[53] On 20 January 2021 the Waitangi Tribunal declined the Trust Board’s application for urgency. This decision is the subject of the 423 proceeding.

[54] On 25 February 2021, Te Arawhiti officials and the lead Crown negotiator met with the Trust Board.¹⁵The discussion canvassed the Trust Board’s concerns. The Trust Board and the Crown confirmed their respective positions on mandate, negotiators, the claimant community register and the inclusion of the Farm in the Deed of Settlement. The Crown noted the opportunity the Trust Board would have to make submissions to the Select Committee when settlement legislation was progressing through Parliament. The Crown agreed to formally advise the Trust Board of the proposed signing date for the Ngāti Pāoa Deed and to ensure that the Trust Board was provided a copy of the Deed when it was finalised for signing.

[55] On 1 March 2021, the Trust Board wrote to the Minister for ToW Negotiations expressing its view that it had been unlawfully excluded from the settlement process and that proceeding to sign the Deed of Settlement would perpetuate divisions within Ngāti Pāoa. On 3 March 2021, Te Arawhiti advised the Trust Board that 20 March had been proposed as the date to sign the Deed. On 10 March 2021, the Minister wrote to the Trust Board advising that he intended to sign the Ngāti Pāoa Deed on 20 March. The Trust Board wrote to the Minister requesting that the proposed signing on 20 March be deferred to resolve the Trust Board’s dispute over mandate and ratification because the Crown’s approach had continued the divisions within Ngāti Pāoa rather than bringing the people together.

[56] On 15 March 2021, these High Court proceedings were filed. The following day, the Minister advised the Trust Board that he declined their request not to sign the Deed of Settlement and indicated that he did not agree with the Trust Board’s characterisation of the Crown’s conduct or its consequences.

[57] On 17 March 2021, the Trust Board applied to this Court for interim orders seeking a declaration restraining the Crown and the Iwi Trust from signing the Deed of Settlement. The Court dismissed the application.¹⁶The Deed was signed at Wharekawa Marae, Kaiaua, on the Whakatīwai Coast on 20 March 2021.

[58] On 30 May 2022, the Māori Land Court released its consent decision on the Waiheke Station Trust recording that the Trust Board as sole trustee is the legal owner of the Farm for the benefit of those who whakapapa to the eponymous ancestor Pāoa and requiring the Trust Board as trustee to establish and maintain an up-to-date list of beneficiaries.¹⁷

[59] Discovery in these proceedings was provided in mid-2022, in which the registers held by Mr Wilson, the Iwi Trust and the Trust Board were disclosed. Following its analysis of the registers, the Trust Board wrote to the Crown in August 2022 outlining the differences it had identified and asking that the Crown take no further steps to implement the settlement pending a new vote based on a consolidated register and to assist in facilitating tikanga-based processes between the Trust Board and the Iwi Trust to produce a common register for a fresh verification process.

[60] The Crown responded in September 2022 expressing its views that the flaws alleged by the applicants were misplaced and indicating that it would move to introduce settlement legislation shortly.

[61] As noted, the 422 and 424 proceedings against the Attorney-General and the Iwi Trust overlap almost entirely. For convenience, these are referred to in this judgment as the “Crown process proceedings”. Both proceedings are applications for judicial review of the same decisions made by the Crown and plead the same three causes of action.

¹⁷Williams and Ors v Attorney-General (2022) 238 Waikato Maniapoto MB 83 (238 WMN 83).

[63] The first cause of action in both proceedings challenges the Mandate Decision on several grounds, including:

[64] The second and third causes of action in both proceedings challenge the Ratification Decision on several grounds, including:

[65] The applicants seek the same relief in the Crown process proceedings, including:

[66] The 423 proceeding is an application for judicial review of the decision by the Waitangi Tribunal on 20 January 2021 not to grant an urgent hearing of the claim brought by Mrs Roebeck on behalf of the Trust Board (Wai 2982).

[67] The Trust Board pleads two causes of action in the 423 proceeding, challenging the Tribunal’s decision on the grounds that it:

[68] The Trust Board seeks relief in the form of a declaration that the Tribunal’s decision was irrational and/or involved errors of law, an order setting aside the decision and a direction that the Tribunal reconsider its decision.

[69] The Crown and the Iwi Trust defend the Crown processes proceedings on the grounds that the challenged decisions are non-justiciable. It is appropriate to first address this defence, as, if the challenged decisions are non-justiciable, the Court need not go further.

[70] There are two aspects to justiciability. First, whether the subject-matter of the proceeding is something a Court should deal with. This is described as “a matter of comity”¹⁸or, as the Supreme Court put it in Ngāti Whātua Ōrākei Trust v Attorney- General (Ngāti Whātua), “the principle of the non-interference of the court in parliamentary proceedings”.¹⁹The second is whether the issue(s) arising are capable of being determined satisfactorily by a Court, or, in other words “whether judicial techniques lend themselves to articulating and resolving whatever it is that is in dispute”.²⁰

[71] It is the former which is the predominant focus of the Court in this decision. This has been described by the Court as “the problem of legitimacy: whether the judicial branch is crossing the line into the proper area of the executive, thereby infringing... the separation of powers”.²¹The learned author of Judicial Review: A New Zealand Perspective notes that the answer is dictated largely by the “political” appreciation of the Court, the political climate of society and the times, and the limits within which the Court is satisfied that public confidence in the judicial system is not endangered.

[72] In short, the Crown says that the orders sought by the applicants necessarily fail because of the principle of comity; any action by the Court would go too far and impugn the legislation making process, which is outside of its role. The applicants say this is not the case.

[73] In a recent decision of this Court, Griggs v Attorney-General, Cooke J addressed the tension between this principle and applications for review arising in the context of Treaty settlements:²²

It is not uncommon for the Court to be approached in the context of Treaty settlements, with applications being made by parties seeking that the settlement be stopped. When this has arisen it has been recognised that there is a difficult underlying issue. The Treaty settlement process can be considered, at least in part, to be a political process. Ultimately Treaty settlements become binding through an act of Parliament. There has accordingly been a concern, reflected in a number of decisions, that the Court should not be drawn into ruling upon, or making orders in relation to, matters that are to be placed before Parliament to decide. One way of expressing the concern is that it engages a “comity” principle — that is that the Court should respect that there are certain matters that are for Parliament, and not for the Court.

[74] In the past, decisions of the Court tended to take a more conservative position as to its role in the Treaty settlement process; considering that Treaty settlements were part of the political process that lay beyond the reach of the Court.²³However, this position has shifted. In recent years, there has been seen scope for the Court to engage in judicial review to some extent where there has been a breach of principle of public law.²⁴

[75] The leading decision on the matter is the Supreme Court in Ngāti Whātua.²⁵In that case, the Ngāti Whātua Ōrākei Trust sought to challenge actions taken by the Crown to progress a Treaty settlement, including introducing legislation, that would affect or undermine the legal rights of Ngāti Whātua Ōrākei. In essence, Ngāti Whātua

²³See Fenwick v Trustees of Nga Kaihautu o Te Arawa Executive Council HC Rotorua CIV-2004- 463-847, 13 April 2006; and Te Runanga O Ngati Awa v Attorney-General HC Wellington CIV- 2006-485-1025, 17 July 2008.

²⁴See McGechan on Procedure (online ed, Thomson Reuters) at [JRIntro.05(6)].

[76] The majority, in a decision written by Ellen France J, first endorsed the two key principles articulated by the Court of Appeal in Te Runanga o Wharekauri Rekohu Inc v Attorney-General (Sealords), namely that:²⁷

[77] The majority canvassed four decisions in which the principle had been discussed:

²⁷Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA), cited by

Provided they are careful not to cross the boundary into the domain of Parliament or the executive’s role in advancing legislation, it would be wrong in principle and dangerous in

³⁴Port Nicholson Block Settlement Trust v Attorney-General [2012] NZHC 3181.

practice for the courts to leave the Crown to “acquit itself as best it may” as the “sole arbiter of its own justice”, where the controversy raises justiciable issues of statutory or deed interpretation or indeed of customary law if properly pleaded.

[78] Following this summary, the majority noted that “there remain questions about the exact scope, qualification and basis of the principle of non-interference in a parliamentary proceedings”.⁴⁰However, the majority noted:⁴¹

It is, nonetheless, appropriate to sound a note of caution at the extent to which the principle of non-interference in parliamentary proceedings has been held to apply to decisions somewhat distant from, for example, the decision of a minister to introduce a Bill to the House or from debate in the House. It would be overbroad to suggest that the fact a decision may, potentially, be the subject of legislation would always suffice to take the advice leading up to that decision out of the reach of supervision by the courts. That would be to ignore the function of the courts to make declarations as to rights.

[79] The majority also indicated that given the principle of non-interference with parliamentary proceedings was “the corollary” of the “implied right to freedom of expression in relation to public and political affairs [that] necessarily exists in a system of representative government”, as expressed in Sealords, the timing of parliamentary matters may be of direct relevance to the application of the principle.⁴²

[80] In that case, the Supreme Court found that it was possible to identify in the present claim “public law decisions which could be the subject of challenge... without

[81] However, the majority had concerns regarding the final two declarations sought by Ngāti Whātua Ōrākei, being declarations that the decisions communicated by the Minister of his intention to enter into Deeds of Settlement with the other claimant groups had been developed and made inconsistently with:

[82] The Court noted that those declarations were “problematic in terms of the principle of parliamentary non-interference”:⁴⁵

[66] Both paragraphs are framed as challenges to process which may be broader. But the processes are described as relating only to the Ngāti Paoa and Murutūāhu decisions, as specifically defined. In context, the relief sought can only be characterised as a challenge to the decision which has been made to legislate to transfer the relevant properties albeit the illegality is said to arise because of some prior lack of process. ...

[84] As academics have observed, Ngāti Whātua signalled a change in trajectory as to how the Courts deal with challenges to Treaty settlements and was indicative of an

[85] I refer to three decisions of this Court since Ngāti Whātua that I consider informative given their Treaty context:

... Parties are entitled to come to the Court when there are disputes about legal rights. That includes the ability to bring judicial review proceedings when the Crown is exercising reviewable powers in a manner that is unlawful.

⁴⁶Claire Charters “Wakatū in Peripheral Vision: Māori Rights-Based Judicial Review of the Executive and the Courts’ Approach to the United Nations Declaration on the Rights of Indigenous Peoples” [2019] NZ L Rev 85 at 93. See also McGechan on Procedure (online ed, Thomson Reuters) at [JRIntro.05(6)].

⁴⁷Ngāti Mutunga o Wharekauri Iwi Trust v Minister for Treaty of Waitangi Negotiations [2019] NZHC 1942 at [20].

... It is the constitutional function of the Court to rule upon questions of legal rights when they are in dispute. It is not the function of the Court to intrude into the laws that are considered for enactment by Parliament. Because a deed of settlement is normally the precursor to anticipated Parliamentary enactment there is a danger that the Court is being invited to consider the merits of matters that are for Parliament, and not the Courts, to address. But in the same way it would be constitutionally inappropriate for the Court not to adjudicate on a matter that is properly within its jurisdiction to determine, even if that includes a question associated with the entry of a Deed of Settlement. If the Court

⁵¹Te Ara Rangatū O Te Iwi O Ngāti Te Ata Waiohu Inc v Attorney-General [2020] NZHC 1882.

did not do so then the Court fails in its essential function of upholding the rule of law.

...before the Court can properly adjudicate matters...there must be an issue raised about legal rights properly to be adjudicated upon by the Court. A complication arises when a party seeks declaratory relief, as there is no requirement for a legal dispute or lis before declaratory relief can be granted. Here the Court’s discretion in relation to declaratory relief becomes important. ...That is, if the application for declaratory relief properly concerns a matter of legal rights to be determined by the Court then declaratory relief may be appropriate. But declaratory relief should not be granted if the Court is being drawn into a matter that involves the merits of matters that are ultimately for Parliament to decide.

[86] I note that, very recently, in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd, the Supreme Court has further commented on the question of whether a proceeding was, in substance, an attempt to interfere inappropriately in Parliamentary proceedings.⁵⁵The Court noted that relevant ratifying settlement legislation had been introduced into Parliament and, if enacted, would put an end to the proceedings. It then observed that it would address two issues for the purposes of clarification only.

[87] Williams J, for the majority, observed that the Court disagreed that the application itself demonstrated the proceeding was, in substance, an attempt to interfere inappropriately in Parliamentary proceedings.⁵⁶The majority relied on the discussion of then Chief Justice Elias in Ngāti Whātua in her dissenting judgment where she said:

[119] I do not think the circumstance that the plaintiff in Fitzgerald v Muldoon sought to uphold statutory obligations is reason not to apply the same

⁵⁵Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 at [45]–[46].

approach. Until Parliament changes the law, the courts must be open to citizens who seek to have their existing legal interests and rights determined. The rights recognised in s 27 of the New Zealand Bill of Rights Act 1990 to natural justice and to bring proceedings against the Crown on equal terms would not otherwise be fulfilled. Parliamentary freedom of debate and in its proceedings is unaffected by the judicial responsibility to hear and determine rights and interests protected by law.

[88] The majority’s second comment was to observe that the appeals under consideration did not put the settlement Bill in issue in any way:⁵⁷

Rather, they raise orthodox claims of statutory or other right: the law to have extant applications for resumption determined according to law, and the related right to test the implications of tikanga considerations in that context. They therefore involve no conflict with the terms of s 11 of the Parliamentary Privilege Act 2014, nor any breach of the common law interference principle of non-interference.

[89] The majority went on to rely on an excerpt from the Court of Appeal’s decision in Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General where the Court of Appeal stated that: ⁵⁸

... the reasoning of both the majority and Elias CJ in Ngāti Whātua is consistent with the proposition that the courts may make declarations of existing right, interest or entitlement whether or not there is a bill before the House which may affect them in some way. Such relief is not “in relation to parliamentary proceedings”, in the sense provided for by ... the Parliamentary Privilege Act. It does not amount to an interference by the courts in Parliament’s “proper sphere of influence and privileges” because such declarations would be about existing rights, interests or entitlements, and not what Parliament may be proposing to do in relation to them. The terms of s 4(1)(b) of the Parliamentary Privilege Act are apposite here. Comity is a principle of “mutual respect and restraint” between the legislative and judicial branches as to their respective constitutional functions. It is the function of courts to adjudicate on rights and entitlements.

[90] William Young J also commented on this issue in his judgment, although for a different purpose. His Honour’s view was that he thought it plain that:⁵⁹

In ordinary language at least, the majority reasons does “put the claims settlement Bill in issue”. However, to the extent that this is simply by reason of this Court dealing with “the right to have the extant applications for resumption determined accordingly to law” it is unexceptionable.

[91] His Honour concluded that given the legislative process underway, the Court should be cautious about expressing opinions on issues that were not in play in the litigation in the High Court.

[92] The substantive relief sought by the applicants in relation to the two Crown decisions (the Mandate and Ratification Decisions) are:⁶⁰

[93] The applicants say that their claim is not prevented by the principle of comity, as:

[94] The applicant also relies on Ririnui v Landcorp Farming Ltd to support the proposition that it is open to the Court to make an order setting aside a contract as a remedy for that error.⁶¹In that case, the Supreme Court held that, where a decision to enter a contract is influenced by a public law error, the Court can make an order setting aside the contract as a remedy for that error, even in circumstances where the unlawfulness did not affect the capacity of the parties to enter the contract. The applicants submit that while the target of the order is a deed, not a contract, this is not a material difference.

[95] The Crown and the Iwi Trust contend that the applicants’ claims offend against the principle of comity and are non-justiciable. The Crown emphasise that the Deed of Settlement is more closely linked to the Parliamentary process than the decisions which were held to fall foul of comity concerns in Ngāti Whātua. It submits that as is conventional, the Deed of Settlement is conditional on legislation, and the Deed is ultimately a political compact.

[96] The Crown refer to the declarations sought relating to the Mandate and Ratification Decisions as “upstream” to the signing of the deed, through which the applicants are seeking to “implicat[e] public law rights capable of a form of free- standing declaration, essentially divorced from the Parliamentary process, so skirting comity issues”. However, the Crown contends that these declarations overlook the fundamental constitutional principle that a court cannot question the legitimacy of an Act of Parliament or the means by which its enactment was procured. The Crown say that the public law consequences of the declarations sought would be to taint any decision to introduce a settlement Bill based on the deed, and any Act if that Bill received Royal Assent. Thus, the declarations sought, if granted, would question the

Given the inextricable link between the impugned upstream decisions—the decision not to pause the settlement process, and the decision to recognise the outcomes of the ratification process—and the deed of settlement; and the link between the deed and the Bill which the deed anticipates will be introduced not the House [not before 13 December] granting the declarations is, in a practical sense, ‘impugning the procedure that led to legislation being enacted’.

[97] The Iwi Trust emphasises that declaratory relief should not be granted if the Court is being drawn into a matter that involves the merits of matters that are ultimately for Parliament to decide. The Iwi Trust submits that the applicants are relying on legal rights and interests that are affected by settlement legislation.

[99] I first note that the Supreme Court emphasised in its recent decision in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd the Courts’ ability to make declarations of existing right, interest or entitlement whether or not there is a bill before the House which may affect them in some way. As I read the decision, it confirms that the Court regarded such existing rights, interests or entitlements as being at issue in the case before it such that it could consider those matters despite there being a related bill before Parliament. However, the Court did not discuss other aspects of the Ngāti Whātua decision. For present purposes, I consider my focus properly remains on that decision.

[100] Upon reviewing the authorities, I consider that the case that shares the closest similarities to the present situation is Ngāti Whātua. The two disallowed declarations sought to challenge “processes described as relating to [settlement] decisions, as specifically defined”. The Court said that in this context:⁶²

...the relief sought can only be characterised as a challenge to the decision which has been made to legislate to transfer the relevant properties albeit the illegality is said to arise because of some prior lack of process. ...

[101] Similarly, here, the heart of the applicants’ claim is that there has been a prior lack of process by the Crown in continuing with the settlement process at various stages and ultimately expressing its intention to proceed with settlement legislation.

[102] As indicated, the Court should not shy away from its constitutional function, that is to adjudicate on questions of legal rights that are properly within its jurisdiction to determine, even if that includes a question associated with entry into a deed of settlement. I recognise that there has been a trend towards the greater scrutiny and review of Treaty settlement decisions, and I agree that this is the proper approach.

[103] However, it is less clear to me whether the legal rights in question in this case can properly be seen to be in the domain of the Court, where what is really being challenged is the process underlaying the introduction of legislation to Parliament. The claims, in my view, appear to be squarely covered by the dicta in Ngāti Whātua such that the claims are prevented from proceeding.

[104] I am also concerned that the settlement process with Ngāti Pāoa is far along. The Executive expressed its intention to introduce the Bill to Parliament. The Executive has confirmed that it is satisfied with the settlement process that has been followed and a Bill is to be introduced to Parliament on a date on or after 13 December 2022. It seems to me that, together with my conclusion on the application of Ngāti Whātua to the present case, the close proximity in time makes the risk of interference with parliamentary proceedings acute.

[105] For these reasons, I conclude that the applicants’ claims in the Crown process proceedings are a breach of the principle against non-interference with Parliamentary proceedings.

[106] In case I am wrong, I have considered the substantive grounds of review pleaded by the applicants in the Crown process proceedings. I consider that, if the decisions are justiciable, the applicants’ claims fail on their merits.

[108] The applicants first submit that the Crown misinterpreted what the Red Book says about the scope of responsibilities of the mandated representative for Ngāti Pāoa and acted inconsistently with those parts of the Red Book governing mandate maintenance, as well as its own statements about the need to revisit the mandate held by the Trust Board. Second, the applicants submit that the Mandate Decision was irrational.

[109] The Red Book is described as a guide to Treaty of Waitangi claims and negotiations with the Crown, authored by the Office of Treaty Settlements.⁶³The applicants contend that in the Red Book, the Crown has published a detailed policy governing the conduct of Treaty settlement negotiations that includes discussion of the mandating process. Mr Roebeck (the principal officer of the Trust Board) has given evidence that he recalls the lead Crown negotiator giving him a copy of the Red Book in 2017 and explaining that it would provide the basis on which the Crown would engage with Ngāti Pāoa.

[110] In essence, the applicants submit, the Red Book has said one thing (that the mandated representative conducts the ratification process and that such a process must meet certain minimum requirements) while the Crown says another (that there are no rules). They say that there was a “serious dispute” about whether the Trust Board maintained a mandate by late 2019 or early 2020, given that both the Iwi Trust and Mr Wilson had commenced processes to challenge the Trust Board directly for the mandate. Therefore, according to the Red Book, the Crown should then have worked with all of Ngāti Pāoa to resolve who held the mandate for the iwi.

[111] The applicants submit that initially, the Crown seemed to follow such a process, as seen by its letter of 29 January 2020 where it asked the Iwi Trust and Mr Wilson to stop their ratification processes for the purpose, the applicants say, of resolving the mandate issue. The applicants rely on this letter as creating a procedural legitimate expectation independent of the Red Book that the mandate issue needed to

[112] The applicants submit that the Crown then breached the expectation created by the Red Book and the 29 January 2020 letter in its further letter of 19 February 2020 where it said that the ratification processes could continue despite the dispute about the Trust Board’s mandate. They also say that the Crown has provided no reasoned justification for its change of position or departure from the Red Book, and that despite the Crown’s letter to the Kauahi hapū of 28 February 2020 which confirmed that the mandate position still required re-evaluation, the Crown allowed the ratification processes to proceed.

[113] Critically to their case, the applicants contend that the Crown has misinterpreted the role of a mandated representative in the Red Book in considering that the question of mandate is only relevant to the authority to conduct negotiations and does not extend to ratification processes.

[114] The Crown and the Iwi Trust submit that no procedural legitimate expectation arose in the circumstances, and nor was any decision irrational. Both the Crown and the Iwi Trust submit that the Red Book is no more than a general guide for claimants and does not prescribe the detail of any particular negotiations. The Crown says the applicants were aware from negotiations, and from the Red Book itself, that the process and engagement of the negotiations with Ngāti Pāoa would prevail over the general statements of the Red Book and that in any event the Crown statements in the course of negotiations, when seen in full and in context, do not support the expectation claimed.

[115] The Crown also disputes that the Mandate Decision can be regarded as an exercise of “public power” or is therefore reviewable. It says it recognised there were deficiencies in the mandate proposals but intended to review the outcome of the voting on the mandate resolutions and provide further advice to Ministers on what was

[116] The doctrine of legitimate expectation ensures that public bodies act fairly and reasonably.⁶⁵In order for a representation to found a legitimate expectation, it must be clear, unambiguous and unqualified. The party must have, reasonably and legitimately, acted in reliance on the promise or undertaking.⁶⁶In this case, a close examination of the Red Book and the letters of 29 January and 19 February 2020 in the context of the broader context of the discussions between the parties is required.

[117] The Red Book describes itself as a “practical guide to the negotiation and settlement of historical grievances under the Treaty of Waitangi”. Relevant to the present proceedings, the Red Book has a substantial section described as the “Negotiations Process”. In broad terms, the claimant group is to confer a mandate on claimant group representatives and that mandate must be approved by the Crown. The mandated representatives (which may include mandated negotiators) then negotiate the settlement with the Crown. The settlement must be ratified by the claimant group before the Crown will accept it. Ratification may be undertaken by the mandated representatives. A PSGE must be established to receive settlement assets. It must be approved by the claimant group and the Crown.

[118] The applicants referred me to several parts of the Red Book where it refers to the role of the mandated representatives. Two examples are that:

⁶⁴I am unaware of any decision about the Ngāti Pāoa mandate for future settlement negotiations having been made at the time of writing this judgment.

⁶⁵New Zealand Assoc for Migration and Investments Inc v Attorney-General [2006] NZAR 45 (HC) at [141], as cited by Whanarua Beachfront Property Owners Group Inc v Opotiki District Council [2022] NZHC 2589 [Whanarua] at [49].

⁶⁶Te Ara Rangatu o Te Iwi o Ngāti Te Ata Waiohua Inc v Attorney-General [2020] NZHC 1882 at [695]–[711] and [717]; Whanarua, above n 65, at [49]–[53]; Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [125]–[127]; and Green v Racing Integrity Unit Ltd [2014] NZCA 133 at [13].

[119] The applicants cite these and other references to support their position that as the Trust Board was the mandated representative of Ngāti Pāoa its proper role included completing the ratification process of the Deed of Settlement and that given the dispute over mandate, the Crown should have paused the ratification process because to do otherwise would be in breach of the Red Book.

[120] The applicants also refer to a number of cases which they say stand for the proposition that policy exists to be followed and that while decision-makers can depart from their public policies where there is a good reason for doing so, here there was never any considered decision to depart from the Red Book.⁶⁹

[121] I accept that the Red Book is an important policy document in the context of settlement of Treaty claims. The Crown would not produce such a document if it did not intend for iwi and others to refer to it. But I think it is properly seen as a general statement of how Treaty settlement negotiations are approached rather than having the prescriptive effect contended for by the applicants. I accept the Crown’s submission that:

Although certain milestones and instruments are common to all negotiation processes, each negotiation is different. The Crown seeks to maintain flexibility to negotiate a settlement that reflects the history, concerns and aspirations of the particular group and context. Because of the need to tailor the negotiations to the circumstances and to maintain a flexible approach to Treaty settlements the Red Book is a general “guide” only. It sets out general principles and process milestones that the Crown seeks to apply to all settlements.

[122] The Crown’s position that the Red Book is a general guide is supported by the explicit disclaimer contained in the Red Book, that states:⁷⁰

...While all statements are believed to be correct, no liability can be accepted for any correct statement, omission or changes to the matters or polices

⁶⁹New Zealand Assoc for Migrants and Investments Inc v Attorney-General, above n 65; Comptroller of Customs v Terminals (NZ) Ltd, above n 66; and Te Pou Matakana Ltd v Attorney- General [2021] NZHC 2942.

referred to. The guide provides general information only and readers should not act or rely on information in this guide without first discussing the detail with OTS [Office of Treaty Settlements].

[123] I consider this disclaimer is particularly important in the context of the construction of a legitimate expectation. As addressed above, the creation of a legitimate expectation requires an unqualified representation. Given the inclusion of a disclaimer in the Red Book, I find it difficult to consider that the Red Book simply on its face can give rise to a legitimate expectation.

[124] The applicants referred me to the Waitangi Tribunal’s discussion of the Red Book in the Hauraki Settlement Overlapping Claims Inquiry Report in support of their contention that the Crown’s actions may be measured against the policy set out in the Red Book.⁷¹There, the Crown took the same approach as it has in this case, namely that the Red Book offers general guidance only, giving the Crown the flexibility it needs to respond to the specific circumstances of each settlement negotiation.⁷²The Tribunal criticised that position, stating that ‘fulsome’ and ‘comprehensive’ guidance is what claimants are entitled to expect.⁷³On my reading of the Report, the Tribunal was criticising the absence in the Red Book of up-to-date policy in relation to overlapping interests, the subject of its inquiry, rather than necessarily making a general statement about the status of the Red Book. I find more persuasive the approach taken in Patel v Chief Executive of the Department of Labour, emphasising that policy documents are not to be construed with the strictness that might apply to interpreting a statute, but with an acknowledgment they are working documents that must be construed “sensibly according to the purpose of the policy and the natural meaning of the language in the context in which it is employed”.⁷⁴The Courts have

⁷¹Waitangi Tribunal The Hauraki Settlement Overlapping Claims Inquiry Report (Wai 2840, 2020).

⁷²This was also recorded as the Crown’s position in Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 at [502].

⁷³Waitangi Tribunal, above n 71, at [3.4]. The Tribunal decision related to overlapping settlement redress and I note that the Red Book has been updated in 2021 to include a new section on overlapping interests. See New Zealand Government “Overlapping interests” <www.govt.nz>.

⁷⁴Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA) at 271.

[125] To my mind, the Treaty settlement context and the content of the Red Book present a quite particular combination of setting and content. Most of the authorities cited by the applicants in support of their argument that the policy must be strictly complied with deal with private rights in various contexts (for example compensation for those wrongfully imprisoned,⁷⁶the effect of changes in immigration policy⁷⁷and the imposition of excise duties⁷⁸) often including an analysis of more prescriptive material. In my view, these are very different settings from the settlement of historic Treaty claims by Māori.

[126] The applicants say the Red Book must “mean something”. I conclude that it does mean something, as a general guide to the settlement process.

[127] Given my assessment of the status of the Red Book, I do not accept the applicants’ submission that the Crown has misinterpreted the role of a mandated representative in the Red Book in considering that the question of mandate is only relevant to the authority to conduct negotiations and does not extend to ratification processes. While the Red Book contemplates that the mandated representative will carry out a ratification process, and this would often be the case, I do not construe this as a prescriptive requirement.

[128] The case before me demonstrates that specific circumstances in which settlement is progressed can extend well beyond the relatively high-level description of a settlement process in the Red Book.

⁷⁵New Zealand Assoc for Migration and Investments Inc v Attorney-General, above n 65, at [140]. The Iwi Trust referred me to the point made by the Waitangi Tribunal that Treaty settlement negotiations require a degree of flexibility on the part of the Crown and the Crown should not apply policy rigidly: Waitangi Tribunal Te Arawa Mandate Report (Wai 1150, 2004) at [5.6.3]. I note also that in New Zealand Māori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31 at [101] the Court described the Crown’s position in relation to property rights as “what may be a development of the view expressed in the Red Book” which seems to reflect the view that the Red Book is a guide but not of the prescriptive nature contended for by the applicants.

⁷⁷New Zealand Assoc for Migrants and Investments Inc v Attorney-General, above n 65.

[129] The question of who held the mandate for Ngāti Pāoa for settling its historical Treaty claims has been contentious since the Iwi Trust came into existence in 2013, then coinciding with the period where the Trust Board did not have appropriate trustees in place.⁷⁹Over time, both the Trust Board and the Iwi Trust have made attempts to resolve the differences between the Trust Board and the Iwi Trust as to their role for Ngāti Pāoa but they have not been successful. Amongst this, the negotiators continued to work on the settlement of Ngāti Pāoa’s claims, leading to the initialled Deed of Settlement in August 2017. There are conflicts too between the negotiators and each of the Trust Board and the Iwi Trust. The context then, is one of an iwi where there are differences between groups and individuals in how the settlement process should progress and who should have responsibility for guiding it and taking particular steps. The Crown has attempted to facilitate resolution between the Trust Board and the Iwi Trust of their differences, including funding facilitation, but without success.

[130] I accept, as the Crown says, that the Red Book, in referring to mandated representatives having to present a deed of settlement to the members of the claimant group for ratification, is setting up an ‘ordinary course of events’ for ratification but does not set restrictions or rules about who may conduct ratification. However, the specific context is more complex, with the mandated body (the Trust Board) in effect refusing to carry out a ratification process in the circumstances as it saw them, as discussed further below. The Red Book does not, and could not, provide for complex situations like this. In my view, this supports my conclusion about the character of the Red Book. Thus, the Crown’s focus on ratification by the claimant community rather than who would present the Deed of Settlement is understandable. I also note that in the context of the Ngāti Pāoa settlement process, mandated negotiators have taken an important (if contested) role, as discussed later in this judgment.

[131] I accept that a term of the Red Book could, in particular circumstances, create a legitimate expectation about how a settlement of a Treaty claim will progress. However, no such expectation is made out in the particular circumstances of the case before me.

[132] I turn then to the claim that a legitimate expectation was established by the Crown’s letter of 29 January 2020 and that this was effectively breached by the Crown’s letter of 19 February in which the Crown indicated the ratification processes could continue despite the dispute about the Trust Board’s mandate.

[133] The 29 January 2020 letter referred to by the applicants is the letter of Te Arawhiti to Mr Wilson, the Iwi Trust and the Trust Board regarding the two mandate and ratification processes that had commenced. Te Arawhiti indicated that further negotiations with Ngāti Pāoa may be required following the release of two Waitangi Tribunal reports and that a clear Ngāti Pāoa mandate for such negotiations would be needed. While previously noting in communications with the Trust Board and the Iwi Trust prior to this point that it did not need to reconsider the mandate as negotiations were complete, Te Arawhiti stated in the 29 January letter that, “on reflection we consider the Ngāti Pāoa mandate situation needs to be addressed ahead of anything else”. It acknowledged that a mandate is not static, and the Crown’s recognition of a mandate is not permanent. Te Arawhiti asked that the ratification processes stop for the mandate discussions to occur, as running the two processes at the same time could cause significant confusion.

[134] This letter is said to have created an expectation that that the ratification processes would be paused until the mandate situation was addressed, and the Trust Board say they relied on this expectation.

[135] The breach of this expectation is said to have occurred through the open letter of Te Arawhiti to the people of Ngāti Pāoa on 19 February 2022. Mr Wilson and the Iwi Trust were proceeding with their ratification processes as they had already been publicly advertised. The 19 February letter recognised that the two ratification processes were proceeding, despite the Crown’s preference that they not, and encouraged participation in one or both processes by the claimant community. The Crown recorded that it considered the mandate processes underway had deficiencies and that it would review the outcome of the voting about mandate before determining next steps.

[136] I do not accept that the 29 January 2020 letter established a legitimate expectation upon which the Trust Board could rely. In particular, I do not consider that the 29 January letter can be said to provide an unambiguous and unqualified representation of the Crown’s actions.

[137] First, in communications prior to and leading up to 29 January 2020 letter, the Crown had consistently advised that negotiations were complete and revisiting the mandate was not required.⁸⁰I make particular reference to two communications.

[138] On 28 May 2019, Te Arawhiti wrote to the Trust Board, Iwi Trust and Mr Wilson to “be clear about Te Arawhiti’s position” on a number of matters, including mandate. Te Arawhiti noted:

The purpose of a mandate for Treaty settlement negotiations is to enable the Crown to be confident it is talking to representatives who have the support of the settling group to negotiate on its behalf.

The Crown has signed the Pare Hauraki Collective Redress Deed and initialled the Marutuahu lwi Collective Redress Deed. There is no further redress to be negotiated and the Crown will not enter into further discussions in relation to these deeds.

The Crown has also completed negotiations on the Ngati Paoa Deed of Settlement. The next step in the settlement process for the Ngati Paoa Deed of Settlement is ratification.

I do not think it necessary at this point of the settlement process for the Ngati Paoa mandate, or the position of negotiators, to be confirmed, refreshed or reconsidered in relation to the deeds that have been negotiated. This is because negotiations between the Crown and Ngati Paoa have concluded and there is no further redress to be negotiated.

The Ngati Paoa mandate will likely need to be reconsidered for the upcoming harbours negotiations within the Ngati Paoa area of interest (Manukau Harbour and the Hauraki Gulf), but that does not need to be done immediately.

[139] On 24 January 2020, only five days prior to the 29 January 2020 communication, Te Arawhiti noted in the open letter published to the people of Nḡati Pāoa its view that the mandate did not need to be refreshed.

⁸⁰As noted in the chronology set out above, in September 2018 the Crown did communicate with the Trust Board expressing its expectation at that time that the Trust Board would undertake the ratification process.

[140] Turning then to the 29 January letter, I set out the relevant parts below:

As you are aware, there are currently two proposed ratification processes for the Ngāti Paoa Deed of Settlement. Alongside these ratification processes is a proposed mandate process initiated by the Ngāti Paoa Iwi Trust and a mandate resolution proposed by Morehu Wilson.

While ratification of the Ngāti Paoa Deed of Settlement is the next step in the Treaty settlement process for Ngāti Paoa, we think it is now appropriate to consider next steps carefully in light of recent developments, including the release of the Waitangi Tribunal’s Hauraki Settlement Overlapping Claims Inquiry Report (the Hauraki report) and its Mana Ahuriri Mandate Report. We have also considered the likely confusion these proposals will cause within Ngāti Paoa. On reflection we consider that the Ngati Paoa mandate situation needs to be addressed ahead of anything else.

Given the findings of the Waitangi Tribunal in its Hauraki report and the tikanga-based engagement process that will now take place there is a possibility that some further limited negotiations involving Ngāti Paoa may be required and a clear Ngāti Paoa mandate for this will be needed.

... the Crown cannot be confident in the Ngāti Paoa Trust Board, and by consequence, the negotiators appointed under that Board’s mandate, continue to have the support of the settling group to negotiate on its behalf.

Therefore, I think it is imperative to clarify who the Ngāti Paoa people wish to represent them in any remaining negotiations. I also think the current situation of two parallel proposed ratification processes will continue to cause significant confusion to Ngāti Paoa and could result in the Crown being unable to recognise the results of either process. Ratifying the deed at the same time as a mandate process may also confuse the ratification results.

We therefore ask the Ngāti Paoa Iwi Trust and Morehu Wilson to immediately halt their proposed processes to ratify the Ngāti Paoa Deed of Settlement at this time.

[141] In my view, it is clear that Te Arawhiti considered it would be best that the ratification process halt while mandate issues are outstanding. However, I do not read the letter as saying that the issue as to mandate affected the ability for the ratification process to proceed and thus it could not proceed. As the Crown says, the references to resolving the mandate in the letter squarely appear to be related to the mandate for outstanding negotiations on Treaty matters other than the Ngāti Pāoa settlement, which

[142] I also consider that the comments made by Te Arawhiti did not themselves establish a promise or undertaking. In my view, it is clear that the Crown was aware that that they could not prevent the Iwi Trust or Mr Wilson from proceeding with their ratification processes, and this is reflected in the way the letter is framed as a request not an instruction. This was a Crown request that they had the prerogative to decline, and did so. I do not read the letter as amounting to any representation that the Crown would act in any certain way.⁸¹

[143] In the context, I do not consider that a procedural legitimate expectation was established through the 29 January letter such that the Trust Board could expect that the Crown to pause the settlement process (including the ratification processes) to resolve the issue of mandate. There was no clear, unambiguous and unqualified representation by the Crown that this is what it would do.⁸²In fact, it was not within the Crown’s power to stop the ratification process, although of course a separate question arises (dealt with later in the judgment) as to whether the Crown should have accepted the ratification processes as demonstrating appropriate Ngāti Pāoa support for the Deed of Settlement.

[144] Given this finding of no legitimate expectation, the 19 February letter cannot be regarded as a breach of any such expectation. It seems to me that the letter records a practical response by the Crown to what was happening, even if it did not consider the situation was ideal.

[145] Further, the Trust Board were aware from 21 June 2019 that Te Arawhiti was going to continue to engage with “those who are willing to proceed” on steps towards commencing ratification. From that time, the Trust Board did not engage, and say they should not have been expected to engage, in a process which they say was deeply flawed. This decision must be relevant when considering whether the Trust Board can be said to have relied upon any expectation that it says arose from the 29 January 2020 letter. The Trust Board did not change their course of action and remained resolute in not engaging with the ratification process. It is unclear to me, then, how they acted in reliance on any expectation which they say could have been established, although my conclusion above is that none was.

[146] As a result, the claim that the Trust Board’s decision to refrain from taking any steps to carry out their own ratification process was made in reliance on the 29 January letter is not made out. It seems to me that the Trust Board chose not to carry out a ratification process at that time because it made a strategic choice that not participating in ratification of the Deed of Settlement would preserve its preferred position that as the mandated entity, it was the “sole duty and responsibility of the Trust Board to initiate, undertake and oversee any ratification process” and thus it could do that when it thought best. I recognise that the 19 February letter from the Trust Board to Te Arawhiti sets out the Trust Board’s intention to:

... over the next months liaise with Te Arawhiti to ... undergo a separate robust and comprehensive mandate process to allow the Ngāti Pāoa iwi to confirm who the iwi want to represent them going forward in relation to the ongoing settlement processes for Treaty of Waitangi settlements.

[147] The applicants also submit that the Crown’s change in position regarding mandate was inherently irrational, first because it was unreasoned and second because it was inconsistent with the common law principle of equal treatment. They say that the Crown departed from the Red Book provisions on mandating for no good reason and so the Ngāti Pāoa claimant community was not treated in the same way that the Crown had promised to treat others.

[148] Given my conclusions above that the applicants have not established that a legitimate expectation was created and then breached, the applicants have not made out their claim that the Crown changed its position in an irrational manner.

[149] The applicants also challenge the Crown’s decision to recognise the outcomes of the ratification processes (the Ratification Decision) on the grounds of unlawfulness, procedural impropriety, material error of fact and irrationality.

[150] The applicants plead the Ratification Decision as the 1 July 2020 decision of the Crown, through the Minister for ToW Negotiations and the Minister for Māori Development:

[151] Most fundamentally, the applicants say that the Ratification Decision is flawed because of problems relating to the registers used (and not used) in the ratification processes. I turn then to describe the factual context, noting that some relevant factual context has already been set out above in the discussion of the Mandate Decision.

[152] As noted earlier, the Trust Board was established in 2004. In 2011 the Māori Land Court vested the Farm and assets of Waiheke Station Trust in the Trust Board to be held on trust for the descendants of Pāoa. The Trust Board says that it has since its establishment maintained a whakapapa verified register of beneficiaries. In 2012 and 2013, certain settlement matters were ratified by Ngāti Pāoa using a Trust Board register. After receiving directions from the High Court in 2016, the Trust Board established a whakapapa verification committee and updated its register of beneficiaries.

[153] The Iwi Trust says that it created a register after it was established in 2013 initially reflecting the Trust Board register (although the Trust Board does not accept that this is the case) and it has been maintained since that date.

[154] The conduct of ratification processes by both the Iwi Trust and Mr Wilson in late 2019 and early 2020 brought the issue of registers into focus. Mr Wilson has not provided evidence in these proceedings, but the Crown has provided some evidence about the process he adopted.

[155] On 31 December 2019, the Iwi Trust wrote to the Trust Board about its plans for processes to seek a mandate for Treaty settlement negotiations and for ratification of the Deed of Settlement. The Iwi Trust asked the Trust Board to provide its register to Electionz, the company running the voting process, “to ensure the maximum participation of Ngāti Pāoa iwi members possible in the voting process”. The letter went on to say the Iwi Trust would be happy to establish a joint whakapapa verification committee for reviewing any new registrations. It also pointed out that if the Trust Board did not wish to participate in this way, any iwi members not registered with the Iwi Trust could still register during the voting period. The letter finishes by stating:

Despite the differences we have had, we now beseech the Trust Board to join with us in this process for the enduring benefit of Ngāti Pāoa as we move to finalise the settlement and look to the future for Ngāti Pāoa.

[156] I do not understand the Trust Board to have responded to that letter although, as set out earlier in the judgment, it and the Kauahi hapū continued to communicate with the Crown.

[158] The Iwi Trust, through its legal advisers, wrote to Te Arawhiti on 11 May 2020 to report on its ratification and mandate process. The letter sets out in detail the process undertaken and the results of the vote. Notably it records:

[160] Resolution 1 stated: I support the Ngāti Pāoa Deed of Settlement. It was supported by 91.33 per cent of valid votes cast.

[161] Resolution 2 stated: I support the Ngāti Pāoa Iwi Trust being the sole mandated entity for Ngāti Pāoa in relation to all Treaty of Waitangi settlement negotiations with the Crown, including completing all existing negotiations. It was supported by 65.23 per cent of valid votes cast.

[162] Resolution 3 stated: I support the Ngāti Pāoa Iwi Trust being the sole mandated entity to represent the iwi of Ngāti Pāoa for all local government and resource management matters. It was supported by 79.19 per cent of valid votes.

[163] Resolution 4 stated: I support replacing the statutory acknowledgment and housing development opportunity at Point England Reserve (proposed in the Ngāti Pāoa Deed of Settlement at clauses 5.251(g) and 6.9) with an alternative offer of:

[164] Resolution 5 stated: I support the winding up of the Waiheke Station Trust and the transfer of its assets and liabilities to the Ngāti Pāoa Iwi Trust (as the post

governance settlement entity) [the Farm proposal]. It was supported by 92.59 per cent of valid votes cast.

[165] The report states that the Iwi Trust considered that the results demonstrated strong and clear support by Ngāti Pāoa for the Deed of Settlement and for the Iwi Trust’s mandate for representing Ngāti Pāoa. On that basis, it considered that the Deed of Settlement should proceed to signing. It recognised that there were additional steps to take in relation to the mandate. The report also identified the Iwi Trust’s concerns about the ratification process run by Mr Wilson, stating that the Crown should not rely on that process. Rather, it said the Crown should rely on the Iwi Trust’s process, given that it was developed in close liaison with the Crown.

[166] On 17 June 2020, Te Arawhiti provided a briefing paper to the Minister for ToW Negotiations and the Minister for Māori Development in relation to the Ngāti Pāoa ratification processes and results. This recommended that the Ministers agree that the ratification results demonstrated sufficient support for the Deed of Settlement, the Farm proposal, the Point England alternative offer and for Mr Wilson and Mr Rawiri to sign the Deed of Settlement. It set out results from both the Iwi Trust’s and Mr Wilson’s ratification process. It recorded that all members of the claimant community had the opportunity to be clearly informed and to participate fully in the ratification process, and that the process maximised participation. It noted that although Mr Rawiri had earlier resigned his position as negotiator, “the support from iwi members to sign the Deed of Settlement may recognise his many years of service as one of the Ngāti Pāoa mandated negotiators”.

The mandated authority [the Trust Board] may raise issues with the ratification processes. The mandated entity is the responsible trustee for the Waiheke Farm and would like to retain this governance role. They also hold a different view to the PSGE [the Iwi Trust] on Ngāti Pāoa whakapapa. Officials consider the risk of a successful challenge by the mandated entity to Ministerial recognition of the results is mitigated by the support from Ngāti Pāoa iwi members for the proposed redress.

[168] Finally, the briefing paper notes that given the incompatible results in relation to mandate (Mr Wilson’s process supporting the confirmation of Mr Wilson and

[169] The Minister for ToW Negotiations and the Minister for Māori Development approved the recommendations made in the briefing paper and on 1 July 2020, they wrote to the Trust Board, the Iwi Trust and Mr Wilson advising that after careful consideration, they had agreed that the ratification results show sufficient support from the Ngāti Pāoa iwi members for the Crown and Ngāti Pāoa to enter the settlement.

[170] On 15 March 2021, the statements of claim in the present proceedings were filed. In the context of discovery in these proceedings, the registers of the Iwi Trust, Trust Board and Mr Wilson have been made available to the parties. The applicants have undertaken a comparison of the registers and say that it shows:⁸³

⁸³The evidence of Ms Tarawa on the one hand and Mr and Mrs Roebeck on the other attempt to explain why the differences in the registers exist but they do not agree on one explanation and this is not something I am able to take further in this judgment.

[171] Following its analysis of the registers, and as noted earlier, the Trust Board wrote to the Crown outlining the differences it had identified and asking that the Crown take no further steps to implement the settlement pending a new vote based on a consolidated register and that it assist in facilitating tikanga-based processes between the Trust Board and the Iwi Trust to produce a common register for a fresh verification process.⁸⁴The Crown’s response was that the flaws alleged by the applicants were misplaced and indicated that it would move to introduce settlement legislation shortly.

[172] That brings me to the present, and I turn now to the claims made by the applicants on the basis of the circumstances surrounding the ratification processes.

[174] Most fundamentally, they say, the applicants submit that the Ratification Decision proceeded on the basis of a material mistake or was irrational because the Ministers did not consider the differences in the registers and no rational Ministers in their position would have made the Decision if they had known about them.

[175] The applicants rely on Thorndon Quay Collective Inc v Wellington City Council, which endorsed E v Secretary of State for the Home Department, as setting out the law on material mistake of fact:⁸⁵

First, there must have been a mistake as to an existing fact, including a fact as to the availability of evidence on a particular matter. Secondly the fact or evidence must have been “established”. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.

[176] Some preliminary comments are necessary, first regarding the nature of the mistake claimed. I note that in their submissions, the applicants initially conceptualised the mistake as being a mistake as to the size of the claimant group for Ngāti Paoa.⁸⁶However, this ultimately converts into a claim solely focused on the wrongful omission of the register differences from the Ministers’ briefing.

[177] Insofar as the mistake initially set out, I do not accept that the omission of the register differences has that effect. The briefing paper provided to the Ministers referred to the 2013 Census estimate that Ngāti Pāoa was an iwi of 3,459 people. I accept the Crown’s submission that this gave the Ministers a wider context in which to consider the participation rates in the ratification processes. I also accept the Iwi Trust submission that it is well-known that the Māori population is youthful compared to the national average and this will affect the proportion of Ngāti Pāoa at or over the

[178] I proceed on the basis that the material fact, simply, is the Ministers’ ignorance of the register differences. As has been observed in England and Wales, a decision will be unlawful “where the decision-maker is shown to have been ... ignorant of an established and relevant fact”.⁸⁷It is plain from the briefing paper and the affidavits filed by the Ministers in these proceedings that the Ministers did not know about the register differences when they made the Ratification Decision.⁸⁸

[179] Accordingly, I summarise what the applicants say about the material mistake of fact in the following way:

[180] I accept the first two requirements are plainly made out here. I also prefer to make no findings as to with whom the responsibility lies for any failure by the Ministers to take the differences into account. The mandate and ratification processes, and the respective positions taken by both the applicants and the Iwi Trust have been

⁸⁷Bubb v Wandsworth London Borough Council [2011] EWCA Civ 1285 at [21], citing Begum v Tower Hamlets London Borough Council [2003] UKHL 5, [2003] 2 AC 430 at [7].

⁸⁸The Crown and Iwi Trust acknowledge the differences between the registers, and that the Ministers did not consider the differences, nor seek information as to the differences at the time of their decision to enter into settlement with Ngāti Pāoa.

[181] The focus of the applicants’ submissions is the materiality aspect. They say the fact the Ministers did not know about the register differences was a material omission as it reveals that hundreds of members of Ngāti Pāoa were treated materially differently in that they were not mailed information and voting packs and therefore did not have the same opportunity to participate in the ratification processes as the other members of the iwi. The applicants say that this is 869 people, being the members who appear only on the Trust Board register.

[182] The applicants have filed evidence from four Kauahi hapū members to show that several iwi members had either heard nothing about the ratification processes, or heard but were: confused about what to do; attempted to get a voting pack from the Iwi Trust but never received one; or refused to participate because they thought the processes were illegitimate. In summary the evidence says:

[183] The Crown and the Iwi Trust say the register differences are not materially relevant because while a register is an important first step in identifying eligible voting members of the claimant community, it is the conduct of the vote for ratification that is of primary importance. The Crown submits that what is important is that:

[184] The Crown says that these matters were all satisfied. Regardless of register affiliation, no one of Ngāti Pāoa descent was denied the right to vote. The Crown and the Iwi Trust assert that the advertising and other publicity, availability of information online and hui (including at principal Ngāti Pāoa marae) attended by independent Crown observers all contributed to providing a reasonable opportunity for all those eligible to be able to vote. The Crown says this together with the opportunity to make

[185] The Crown also highlights that since becoming aware of the register differences pointed out by the applicants, it has not changed its position about continuing the settlement process with Ngāti Pāoa.

[186] I do not accept the Ministers’ ignorance as to the register differences amounts to ignorance of a fact material to the acceptance of the ratification processes, for the following reasons.

[187] It is plain that all Ngāti Paoa adults were eligible to, and could vote, irrespective of the register they are on. I accept that there is no evidence before me that shows that anyone of Ngāti Pāoa descent was denied the right to vote on the basis of eligibility. While there may be ongoing disagreements between the applicants and the Iwi Trust about the appropriate approach to whakapapa, eligibility to vote in both ratification processes was assessed by verification committees. There is no evidence on which I could conclude these committees did not carry out their responsibilities carefully, in light of the eligibility measure as set out in the Deed of Settlement.

[188] There is also disagreement as to whether the opportunity to cast a special vote was sufficient for those Ngāti Pāoa people who were not registered with the Iwi Trust and therefore did not automatically receive an information and voting pack.

[189] In my view, there was reasonable opportunity for all members of Ngāti Pāoa to participate in the ratification process such that 869 members not being sent information or voting packs cannot be said to be fatal to the process and therefore not material to the Ministers’ decision to accept the outcome of the ratification processes on the basis that they reflected the will of the Ngāti Pāoa people. Those not registered had the opportunity to cast a special vote. I accept that special voting requires more

[190] The applicants inferred me to the fact that around 160 special votes in the Iwi Trust process could not be validated because there had been insufficient information collected about the voters by Electronz. While unfortunate, this does not change my view that the special vote process was appropriate.

[191] Ngāti Pāoa has been engaged in settlement processes for years. It has been nearly a decade since the Deed of Settlement was initialled. For the same length of time there have been disputes between the Iwi Trust and the Trust Board over their respective roles in the settlement of the Ngāti Pāoa Treaty claim and the assessment of whakapapa. There have been ongoing actions and developments for the iwi during this time, as set out in the chronology above. It is apparent that there are strong links between the Trust Board and the Kauahi hapū. I think it is reasonable to consider that Ngāti Pāoa people who have an interest in iwi affairs would have been aware of these matters.

[192] The ratification process was publicly advertised. A public notice promoting the ratification process was published in two newspapers on 22 January 2020. There was social media, podcast and website material published, although I note that this was through the Iwi Trust’s platforms and was accordingly directed to those members of the claimant community who were already aware and/or registered with the Iwi Trust (although I expect that all Ngāti Pāoa members could have accessed it if they had wished to do so). I place particular emphasis, however, on the four hui held by the Iwi Trust (and five others held by Mr Wilson). Crown observers attended these hui. There is no evidence available to suggest that attendance at those hui would be affected by an association (or not) with either the Trust Board or the Iwi Trust. Having read the notes taken by the Crown observers, it seems to me that a range of perspectives were expressed at those hui.

[193] I also find the context of other Ngāti Pāoa decision making to be informative. The Crown referred me to the Trust Board’s letter dated 6 May 2019 which described the process adopted by the Trust Board when it held an Annual General Meeting (which amongst other things, sought to reconfirm the Trust Board’s mandate, remove Mr Wilson as negotiator and appoint Mr Williams as negotiator). One public notice was published in the New Zealand Herald advertising the meeting, to which all Ngāti Pāoa were invited. 100 people attended. Although the number of votes cast is not specified, the Trust Board has recorded that the resolutions were passed unanimously or by two thirds majority or more. I note also that the Trust Board Deed of Mandate records that the hui-a-iwi held in 2011 to elect and appoint negotiators was advertised by one public notice (there does not appear to be any information about the number of people who attended that hui). The process for mandating the Trust Board in 2011 included public notices placed once in five newspapers over a three day period and three hui held on marae. Of 109 hui attendees, 78 eligible voters approved the resolution in favour of the Trust Board as mandated authority in Treaty settlement negotiations.

[194] Given it was possible for non-registered members of Ngāti Paoa to cast their vote, I consider it can be no more than speculation whether the 869 people the applicants refer to did not vote, and, if they did not vote, their reasons for not doing so. I accept that the individual members of Ngāti Pāoa who have provided evidence (as set out above) feel excluded from what they believe would be an appropriate ratification process. But they are only four persons. Clearly there are many Ngāti Pāoa people who chose to participate in the ratification processes, as well as a further number who did not but in relation to whom there is no evidence for their reasons for not doing so. As the Iwi Trust submitted, any further comment can only amount to speculation.

[195] It is also unrealistic to expect that every member of Ngāti Pāoa would ever participate in a ratification process. This is likely the case for all Treaty settlements. There will be Ngāti Pāoa members not connected to either the Trust Board or the Iwi Trust who may or may not have known that ratification processes were underway. Even if they knew about the ratification processes through publicity or through informal whānau and iwi communications, they may have had no interest in

[196] What the Ministers did have in front of them was the census of Ngāti Pāoa members which, as I have noted above, provides a reference to the total number of Ngāti Pāoa members, from which comparisons with the number of voters could be made. Further, the 17 June 2020 briefing paper prepared by Te Arawhiti records that “the participation rates of both Mr Wilson’s and the PSGE’s [the Iwi Trust] ratification processes compare favourably with previous Ngāti Pāoa ratification processes and those of other settling groups”. While I note that the analysis of participation rates is premised on the number of members registered on the registers of the Iwi Trust and Mr Wilson, what is important is that of those members registered, a significant number engaged (leading to a participation rate higher than the average across other deeds of settlement) and, more importantly, showed significant support for the Deed of Settlement related resolutions. This information is material.

[197] In addition, it also seems to me that the Trust Board and the Kauahi hapū made a strategic choice in early January to not participate in the ratification process, despite an invitation from the Iwi Trust to do so. I accept they held the view that the Iwi Trust’s process was illegitimate. But they could have marshalled their members, encouraging them to vote against the resolutions, both for ratification of the Deed of Settlement and the mandate. This may have been a more effective strategy than holding a position of principle and threatening litigation against the Crown. I also observe that there have been years in which the parties could have resolved their differences, but they have not done so. While responsibility for that clearly falls on all involved, it is in my view relevant that the Trust Board did not respond to the Iwi Trust’s letter given that it and the Kauahi hapū are now seeking discretionary relief from this Court, of which the goal is said to be conducting a tikanga-based process to ascertain a combined register of the Ngāti Pāoa claimant community.

[198] In light of the above factors, I do not consider the register differences were a material fact to the Ratification Decision. This ground of review fails.

[199] The applicants submit that in making the Ratification Decision, the Ministers proceeded on the basis of a material mistake about the authority of the negotiators to conduct a ratification process.

[200] Mr Rawiri voluntarily resigned on 6 May 2018. Mr Williams was appointed by the Trust Board to replace him and this was accepted by the Crown. As set out earlier, the Trust Board resolved to remove Mr Wilson as a negotiator at its AGM on 4 April 2019, following the Trust Board’s concerns that Mr Wilson was seeking to undermine the Trust Board’s authority. The Crown expressed concern about the Trust Board AGM, including who had been able to vote at it. The Trust Board says that these concerns appear to have been based on an unsworn affidavit from a former Trust Board trustee which said that the Trust Board had only 170 registered adult members. Evidence for the Trust Board strongly rejects the unsworn evidence and says that the former trustee was disaffected. The Trust Board says that there is no basis to impugn the decision to remove Mr Wilson as a mandated negotiator, which was made consistently with the Ngāti Pāoa Trust Deed and Deed of Mandate.

[201] The applicants submit that it is clear from the briefing paper to the Ministers that the Ministers did not consider the Trust Board’s decision to remove Mr Wilson when making their decision about whether to recognise the outcome of his ratification process and that this constitutes a material omission and mistake.

[202] I consider this ground is defeated in two respects. First, I do not accept that the Crown’s recognition of Mr Wilson’s position amounts to a mistake here. In the 422 proceeding, it seems to me that what the three applicants rely on is that Mr Wilson and Mr Rawiri could not take any steps to establish themselves as negotiators or act as negotiators because this could only happen through the actions of the Trust Board as it is the only entity holding the mandate. As discussed earlier, the question of mandate going forward remains a matter to be resolved by Ngāti Pāoa. In terms of the ratification exercise, I have concluded that it is not necessary that ratification processes

[203] Second, I do not accept that the fact of the purported removal of Mr Wilson as mandated negotiator was material to the Ratification Decision.⁹⁰The Crown had some concerns as to who was able to vote on the question of Mr Wilson’s removal, holding a meeting to discuss the matter, which the Trust Board ultimately did not participate in.⁹¹It would seem that Mr Williams did have some support from Ngāti Pāoa as 550 members of Ngāti Pāoa were registered with him for his ratification process. Neither Mr Wilson nor Mr Rawiri are parties to these proceedings and no evidence has been called from either of them. I accept, as the Crown submits, that the question as to the legitimacy of Mr Wilson’s removal had not been resolved and, combined with the continued direct support Mr Wilson enjoyed from Ngāti Pāoa via hui-a-iwi it was reasonable for the Crown to take the position that Mr Wilson still enjoyed claimant community support as negotiator in accordance with the Deed of Mandate.

[204] The applicants also submit that when making the Ratification Decision, the Ministers misinterpreted their own policies and breached legitimate expectations regarding the minimum standards that would be expected of ratification processes arising from the Red Book and the Crown’s specific policy for recognising the outcomes of ratification processes.

[205] The applicants refer to seven specific references to material in the Red Book that they say provide guidance on how ratification processes should be conducted. More particularly, they say that the Ratification Decision departed from the legitimate expectations created by the Red Book in:

⁸⁹I note that there was criticism by the Iwi Trust as to the process taken by Mr Wilson. However, there is insufficient evidence available in these proceedings for me to reach any conclusions as to Mr Wilson’s ratification process.

[206] I have already concluded that the Red Book is properly understood as a general guide, and that no legitimate expectation can be said to have arisen from the Red Book in the particular circumstances of this case.⁹²

[207] The applicants also emphasise that evidence for the Crown establishes that when making decisions about whether to recognise the outcome of a ratification process the Ministers consider three main factors:

[208] The applicants say that no rational Minister could have concluded that the three high level factors were met because:

[209] The matters here raised by the applicants in essence rely on the same arguments as those canvassed above when considering whether ignorance of the register differences was a material error. In reliance on the reasons set out above, I consider that the Crown was entitled to conclude in all the circumstances that it could be satisfied with the ratification process and that those three high level factors were met.

[210] The applicants say that the Crown erred in its decision to accept the ratification processes, and to sign the Deed of Settlement, as these matters relate to the Farm. Under the Deed of Settlement, ownership of the Farm is to be transferred to the Iwi Trust. This was one of the matters addressed by a resolution put forward in the ratification processes.

[211] As set out earlier, the Trust Board is the sole trustee of the Waiheke Station Trust. The Trust Board is obliged under the relevant trust deed to hold the Farm for the descendants of Pāoa and to maintain a list of beneficiaries. The applicants say that as the Farm is in effect already owned by the claimant group, the Crown must take particular care to ascertain what the members of Ngāti Pāoa want in relation to what is a resettlement of an asset rather than a new asset as part of the redress provided by the Crown. Any change to the basis on which the Farm was owned was a decision for the beneficiaries of the trust on which it was held – the descendants of Pāoa.

[212] The applicants say the Ministers made several errors relating to the Farm in their ratification decision:

[213] The applicants submit that these issues, separately or together, show the Crown’s decisions to be unlawful on account of failure to have regard to relevant matters, material and incontrovertible errors of fact and on the basis the decisions were irrational and unreasonable.

[214] Both the Crown and the Iwi Trust submit that the critical fact is that the beneficiary class for the Farm is exactly the same as the beneficiary class for the Deed of Settlement, that is, those who whakapapa to Pāoa (the Ngāti Pāoa people).

[215] The Crown says that the request to consolidate the Farm with other settlement redress came from the negotiators and the Crown would only agree if the decision was specifically ratified by Ngāti Pāoa. The Crown says that the ratification processes were an opportunity for the beneficiaries of the Waiheke Station Trust to vote on whether they wanted the Farm consolidated with all other assets in the Iwi Trust as the PSGE and it was important this took place.

[216] The Crown continues to have concerns about the validity of the Trust Board’s resolutions at its 4 April 2019 AGM and says the Trust Board abandoned reliance on them given its refusal to engage with further discussions about them with the Crown. The Crown also submits that the Trust Board could have made information available to Ngāti Pāoa in the context of the ratification processes but chose not to, and in any event the fact the Trust Board was the sole trustee of the Waiheke Station Trust was a matter of public knowledge.

[217] The Crown also submits that any transfer of the Farm to the Iwi Trust will not be unlawful if it is effected by settlement legislation and there is no basis for the Court to grant relief that interferes or impacts on actions of the Executive preparatory to the introduction of a bill to Parliament.⁹³

[218] The Crown’s evidence from the lead Crown negotiator is that if the Farm remained in the control of the Trust Board, the Trust Board would support Ngāti Pāoa’s settlement. The evidence is that the Trust Board was not willing to test their view with the people of Ngāti Pāoa through the open forum of a ratification process. The Crown’s view is that the Trust Board has a strong desire to retain control of the Farm. Mr Roebeck disputes that on the part of the Trust Board, saying that while the Trust Board would prefer that the Farm remain in its control, if the transfer of the Farm to the Iwi Trust was tested in a legitimate process, the Trust Board would accept the outcome.

[219] The Iwi Trust also submits that the transfer of the Farm to the Iwi Trust has been discussed with the iwi for a number of years, including with the trustees of the Trust Board on a number of occasions. It cannot be regarded as a last-minute aspect of settlement. The Iwi Trust records that the Farm will transfer as Māori freehold land and so will be subject to protections afforded to the beneficial owners under Te Ture Whenua Māori Act 1993.

[220] It seems to me that the issues raised by the applicants reflect the other concerns the applicants have identified with the Ratification Decision more generally. I accept that the critical fact is the identification of the class of beneficiaries. Given that a register exists specifically for the purpose of recording the beneficiaries of the Farm, the case is stronger that these beneficiaries should have been specifically consulted about the resolution proposing transfer of the Farm to the Iwi Trust. However, the beneficiaries are the Ngāti Pāoa people, who had reasonable opportunity to engage in the ratification process, and of the Ngāti Paoa members who did vote, there was substantial support amongst voters for the proposal. The Crown’s approach was not unlawful, irrational or unreasonable in the circumstances.

[221] Finally, the applicants submit that the Crown’s approach to the mandate and ratification decisions has had the effect of creating new grievances wholly inconsistent with decision-making in the context of a Treaty settlement. They say that the approach of the Crown has exploited divisions in the iwi, perhaps because it was frustrated at the length of time the process had taken.

[222] The ongoing dispute between the Trust Board and the Iwi Trust is certainly not ideal for Ngāti Pāoa. I accept that the ratification processes and resulting adversarial processes have exacerbated any divide. However, this must be seen against the backdrop of years of disagreement and failed attempts between the parties to reach resolution.

[223] In light of that background, the Crown’s decisions cannot be seen as being irrational. They have been appropriate in the unusual circumstances of the Ngāti Pāoa settlement negotiations. While having two ratification processes and simultaneous

[224] The Trust Board also challenges the Crown’s decision to proceed to sign the Deed of Settlement, but only on the basis it was tainted by the errors pleaded in relation to the Mandate and Ratification Decisions.

[225] My conclusions above on the mandate and ratification matters mean that it cannot be said the decisions were tainted in the way claimed by the applicants. Accordingly, this challenge fails.

[226] The 423 proceeding is an application for judicial review of the decision by the Waitangi Tribunal not to grant an urgent hearing for Wai 2982.⁹⁴

[227] The Trust Board pleads two causes of action in this proceeding, challenging the Tribunal’s decision on the grounds that it:

[228] The Trust Board seeks relief in the form of a declaration that the Tribunal’s decision was irrational and/or involved errors of law, an order setting aside the decision and a direction that the Tribunal reconsider its decision.

[229] On 7 July 2020, the Trust Board filed a statement of claim and an application for an urgent hearing before the Tribunal.⁹⁵This followed the ratification of the Ngāti Pāoa Deed of Settlement, which occurred in March 2020, and the Trust Board’s unsuccessful application for interim orders to prevent the signing of the Deed. The Trust Board alleged breaches by the Crown of its duties under the Treaty. It pleaded three causes of action:

[230] Underpinning the Trust Board’s causes of action were its concerns about the Crown’s engagement with the Iwi Trust in relation to the Ngāti Pāoa Deed of Settlement and the Deed’s ratification, and its opposition to the involvement of the Iwi Trust and Mr Wilson in these matters. Amongst other things, the Trust Board contended there was not a fair process in relation to ratification of the Deed of Settlement and that there was a failure to recognise Ngāti Pāoa tikanga and the rangatiratanga of Ngāti Pāoa individuals and hapū.

[231] The Trust Board sought an urgent hearing into the Crown’s settlement policy and actions in relation to Ngāti Pāoa on grounds including significant irreversible prejudice as a result of current or pending Crown actions or policies, that no alternative remedies are available, that the claim challenged an important current or pending Crown action or policy, and imminency of settlement.

[232] The Tribunal delivered its decision on the application for urgency on 20 January 2021.

[233] The Tribunal set out the submissions made by the Trust Board, the Crown and the Iwi Trust, regarding the application.⁹⁶It then referred to the Tribunal’s Guide to Practice and Procedure, setting out what the Guide says about the factors the Tribunal may consider in determining an application for an urgent hearing.⁹⁷

[234] The Tribunal recorded that urgency is not lightly granted, given that it impedes the orderly flow of work and pushes back further those waiting for a hearing.⁹⁸It explained that the key reason it declined the Trust Board’s application for urgency is that it did not consider the claim had a reasonable chance of being upheld by the Tribunal.⁹⁹The Tribunal characterised the dispute as largely being between the Trust Board and Iwi Trust, noting that much more important than the representative bodies are the Māori who they say they represent.¹⁰⁰It said that the Trust Board ceased to hold the mandate, and that “Ngāti Pāoa has moved on and can be seen to firmly support the Iwi Trust”.¹⁰¹The Tribunal also concluded that “[n]umbers matter and in this context the Trust Board has not been able to disclose any substantial support. The support of the Iwi Trust is overwhelming”.¹⁰²It also found that Ngāti Pāoa had shown they wish the Iwi Trust to administer the Farm and that the differences relating to whakapapa were not of any magnitude or created any degree of prejudice.¹⁰³

[235] The Tribunal concluded that the evidence before it created little or no possibility that the Tribunal would find that the Crown was acting in breach of the principles of the Treaty in the sense that the Trust Board proposed, and dismissed the application for urgency.¹⁰⁴

[236] The Trust Board submit that the Tribunal’s decision-making under s 7(1A) of the Treaty of Waitangi Act 1975 and the Guide was inherently irrational because it did not respond to the case as pleaded and involved material mistakes about the mandate of the Trust Board and the outcome of the ratification processes.

[237] The Trust Board submit that the Tribunal should have taken a conventional approach in its decision, of reviewing the pleadings, the evidence, previous Tribunal decisions and then setting out the reasons for his conclusions. Instead, it submits that the Tribunal made “sweeping” characterisations of the Trust Board’s case which were inaccurate, did not engage with the facts and the pleadings, and did not focus on the pleading that the conduct of the Crown constituted a breach of the Crown’s obligations to a significant portion of Ngāti Pāoa. The Trust Board contrasts the Tribunal’s approach in this case with the comprehensive decision on the urgency application in what became the Whakatōhea Mandate Inquiry.¹⁰⁵

[238] In reliance on Haronga v Waitangi Tribunal, the Trust Board submitted that the Tribunal cannot exercise its statutory powers to defer consideration of matters in such a way that prevents claims from being heard. In that case, the Court observed:¹⁰⁶

It is the principal function of the Waitangi Tribunal to inquire into and make recommendations on claims submitted to it under s 6 of the Treaty of Waitangi Act. With limited exceptions, the Tribunal is obliged to inquire into every claim ...

It follows from this statutory scheme that the power [to refuse to inquire] under s 7(1A) cannot be used, consistently with its purpose, in order to defeat a claim, in the sense of precluding it from being the subject of an inquiry or precluding completion of that inquiry.

[239] It appears to be the Trust Board’s position that, in declining the urgency application, the Tribunal was deferring the matters in a way that prevented its claim being heard. It noted that Ngāti Pāoa would not get another chance to have its concerns dealt with as the Ngāti Pāoa Settlement Bill is to be introduced to Parliament shortly.

¹⁰⁵Waitangi Tribunal Decision on Applications for an urgent hearing (Wai 2662, 2017).

¹⁰⁶Haronga v Waitangi Tribunal [2011] NZSC 53, [2012] 2 NZLR 53 at [80] and [84].

The Trust Board submitted that, given the principles set out in Pora v Attorney- General, the Tribunal was required to interpret and apply its Guide to Practice and Procedure correctly at all times.¹⁰⁷

[240] The Trust Board also refers to two inaccuracies that they say fall under the irrationality consideration.

[241] The first inaccuracy identified by the Trust Board is the Tribunal’s conclusion that Ngāti Pāoa “had moved on” and could be seen to “firmly support the Iwi Trust”. The Trust Board says there was no evidential foundation for these statements, and they are irrational. It says the Trust Board remains the mandated representative of Ngāti Pāoa and the Crown had not taken the steps prescribed in the Red Book to formally assess the Trust Board’s position. Further, even if Ngāti Pāoa had moved on and supported the Iwi Trust, the conduct of the Crown in abandoning the Red Book process and allowing ratification to proceed without formally resolving the issue of mandate was a breach of the principles of the Treaty and the Red Book.

[242] The second inaccuracy identified by the Trust Board is that the Tribunal’s conclusion that Ngāti Pāoa had voted to ratify the settlement process overlooked the Trust Board’s contentions about the inadequacy of the registers used in the two ratification processes that were run. Accordingly, the Trust Board says the Tribunal should have considered how the ratification processes were run and the registers used to run it. The Trust Board says that at the very least it is arguable that the outcomes did not represent the will of Ngāti Pāoa and the Tribunal was wrong to form the firm conclusions that it did.

[243] The Trust Board submit that the Tribunal mischaracterised the Trust Board’s argument in relation to the Farm in that it wrongly cast the Farm as a settlement asset. It refers to the evidence of Mr Roebeck that the land in question was gifted to Ngāti Pāoa by the Crown before Treaty negotiations had even commenced. The Trust

[244] The Trust Board also submits that the Tribunal wrongly said that the Trust Board requires the Farm to be held by it. Rather, the Trust Board’s concern is that all beneficiaries of the Waiheke Station Trust should have the opportunity to express their views on how the Farm should be held. The Trust Board says it holds the register of those beneficiaries, yet that register was not used in the ratification processes carried out by the Iwi Trust and Mr Wilson. The Trust Board confirms it would accept any proper decision of Ngāti Pāoa as to what entity should hold the Farm.

[245] I deal first with the Trust Board’s general criticism of the Tribunal’s decision. The Crown and the Iwi Trust reject the Trust Board’s submissions, saying rather that the Trust Board disagrees with the Tribunal’s decision but this does not mean a reviewable error of law exists.

[246] The Tribunal’s urgency decision may not be cast as the Trust Board would like. I accept that in a perfect world the Tribunal would have set out in more detail its consideration of the pleadings and the evidence in order to demonstrate on the face of the decision its understanding of the factual matrix and the claims made by the Trust Board. However, this does not make the decision irrational.

[248] First, the Tribunal recorded a background chronology and procedural steps taken (importantly, recording the affidavits filed by each party). I have reviewed the affidavits. The Trust Board’s concerns are squarely laid out by Mr Roebeck and Mrs Roebeck.

[249] Second, the Tribunal also specifically refers to “the evidence before the Tribunal” in one of its conclusory paragraphs, which can only be understood as demonstrating that it had considered that evidence.

[250] Third, the Tribunal set out in detail the parties’ submissions (which constituted two rounds of submissions).¹⁰⁸Notably, for the Trust Board, it clearly recorded the Trust Board’s position that, amongst other matters, it:

[251] Fourth, the Tribunal expressly referred to the Guide and set out the relevant extract from it relating to the grant of urgency.

[252] I also accept the Crown’s submission that the Tribunal, as a specialist body, ought to be accorded an appropriate degree of latitude on review, including in determining applications for urgency.¹⁰⁹The Court of Appeal has said that it is not the function of the High Court on judicial review to determine the merits of the application but to assess its legality.¹¹⁰

[253] Considering these matters, I do not accept the Trust Board’s submission that the Tribunal’s decision does not engage with the facts and the pleadings and that its material facts are evidence that the matter before it may not have been properly

¹⁰⁸This included 34 paragraphs summarising the Trust Board’s submissions.

¹¹⁰At [22]–[23], endorsing Tūrāhui v Waitangi Tribunal [2015] NZHC 1624 at [95].

[254] I do not think it necessary to consider in detail the parties’ arguments about the Tribunal’s jurisdiction to grant or refuse an application for urgency. While the applicants are correct to say that Haronga found that the Tribunal cannot exercise its powers to defer in such a way that defeats a claim I do not think that statement advances the issues in the present matter. That decision concerned whether to grant an urgent hearing into a claim for the Tribunal to make binding recommendations for the return of Crown Forest Licensed Land under s 8HB of the Waitangi Tribunal Act 1975. In that case, the Tribunal had already identified the claimant had a well-founded claim and the constitutional significance of the s 8HB power was deemed determinative. I accept that the Court’s observations in that case must be read in that context. In this case, the preliminary assessment was that the claim was not well-founded, and urgency was not appropriate.

[255] The question for me is whether the Tribunal in the present case appropriately (in a judicial review sense) considered the question of whether or not it should grant the Trust Board’s application for urgency. The applicants say that the Tribunal did not adequately consider the imminence of settlement. In my view, the Tribunal understood the application was for urgency because of the imminence of settlement and that its dismissal would leave the substantive claim to take its turn in the Tribunal’s work schedule.¹¹²It expressly referred to the Guide and its discussion of factors relating to

[256] For these reasons, I do not consider that the Tribunal’s urgency decision is inherently irrational on the basis it did not respond to the case as pleaded or take account of the Guide and its specified factors relating to urgency.

[257] I turn now to consider each of the two specific allegations of inaccuracy made in relation to the decision.

[258] The first point relates to the Trust Board’s concerns that it remains the mandated entity and the Crown moving to ratify the Ngāti Pāoa settlement without resolving the mandate issue breaches the Treaty principles and the Red Book.

[259] I acknowledge the reliance placed by the Trust Board on the Waitangi Tribunal Whakatōhea Mandate Inquiry Report.¹¹⁴The Trust Board submitted that this was also a matter where issues were raised about the claimant community register and how the Crown should behave in circumstances where it had concerns over whether the mandated entity still held the mandate. The Tribunal there concluded that the Crown had breached the Treaty principle of active protection in relying on a register for the purposes of a mandate vote, concluding that the Crown had failed to properly inform itself as to the adequacy of the register for the purposes of a vote.¹¹⁵The Trust Board submits that this reasoning applies in the present case, as to the registers used for the ratification processes.

[260] The Iwi Trust submitted that the context for the Whakatōhea Mandate Inquiry Report was significant and sustained opposition to settlement (not just concern about process as in the present case) and a desire for an historical inquiry by the Tribunal. The Crown submitted that matters of Treaty settlement process, mandate and intra iwi dynamics are matters within the Tribunal’s core area of expertise and are matters of

¹¹³For completeness, and insofar as it is suggested by the Trust Board’s submissions, I do not accept that the Tribunal has incorrectly applied its Guide to Practice and Procedure in its approach to urgency.

[261] I refer to my earlier discussion of matters relating to mandate. In essence, I have concluded that the Trust Board being the mandated entity does not mean it is the only entity that may participate in ratification of a settlement in the particular circumstances in these proceedings and thus the Mandate Decision was not unlawful on the grounds alleged by the applicants. It seems to me that it was open to the Tribunal to reach the conclusion it did that in all the circumstances the failures alleged by the Trust Board in its claim did not have a reasonable chance of succeeding. Accordingly, the Tribunal’s description of the situation, although perhaps colloquial in expression, cannot be seen as irrational.

[262] The second point relates to the Trust Board’s concerns about the inadequacies of the registers used for the ratification processes and the failure for its register to be used.

[263] At the time the application for urgency was made (in July 2020) and the Tribunal decision given (January 2021), the Trust Board did not have discovery available to it in this proceeding. So it was not then able to raise its concern that there are 869 people listed on its register who were not included in the registers of the Iwi Trust or Mr Wilson. Having reviewed the Trust Board’s statement of claim before the Tribunal, it is apparent that the Trust Board’s primary concerns related to the Crown’s failure to engage with it as the mandated entity, including in relation to it proper role in ratification processes. The Trust Board submitted that it put the adequacy of the registers used in issue in its pleadings but this is not apparent to me, from reviewing the statement of claim dated 7 July 2020. In these circumstances, I cannot see that the Trust Board can argue that concerns about the registers used for the ratification processes constitute a material mistake by the Tribunal in its decision.¹¹⁶

¹¹⁶In any event, I have earlier concluded that the Ratification Decision was not unlawful.

[265] While the Trust Board is correct that the Farm is not a settlement asset in the sense it was already held by the Trust Board as trustee, I do not accept that this error is material or in itself constitutes an error of law. Rather, the key point of possible concern is the Tribunal’s statement that Ngāti Pāoa have shown they wish the Iwi Trust to have the obligation to administer the Farm for them. The Trust Board says this demonstrates that the Tribunal assumed that all members of Ngāti Pāoa, and in particular the beneficial owners of the Farm, have had an opportunity to express their views, when the Trust Board say this is not the case.

[266] Accordingly, the primary issue, once again, is whether the ratification processes in relation to the Deed of Settlement gave an adequate opportunity to Ngāti Pāoa to express their views on how the Farm should be held, and I have discussed this above. In essence I concluded that the approach to the question of the Farm in the ratification processes, and ultimately the Ratification Decision, was not unlawful on any of the grounds alleged by the applicants.

[267] I conclude that the Waitangi Tribunal Urgency Decision is not irrational nor based on an error of law.

[268] The grounds for judicial review in the present circumstances are not made out. Regarding the Crown process proceedings, I have found that the claims are precluded due to the principle of comity or non-interference in parliamentary proceedings. However, in the event that the principle does not preclude the claims, I consider they fail on their merits. The 423 proceeding also fails on its merits.

[269] If the parties are unable to agree on costs the respondents are to file a memorandum by 1 February 2023 with the applicants having ten days to respond.

Crown Law Office, Wellington for First Respondent Kāhui Legal, Wellington for Second Respondent

High Court of New Zealand Decisions

Roebuck v Attorney-General [2022] NZHC 3341 (12 December 2022)