Hemi v Te Runanga O Ngai Tahu [2001] NZCA 327; [2002] 2 NZLR 179 (1 November 2001)

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Hemi v Te Runanga O Ngai Tahu [2001] NZCA 327 (1 November 2001); [2002] 2 NZLR 179

Last Updated: 10 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA82/01

	BETWEEN	KATHLEEN HEMI, MARGARET DIANE BOND, REX GAPPER, DENIS RANGI GAPPER, ROBERT EDIN McKINNEY, BARRY MATTHEW MASON, ALICE BATT, AUDREY McLAREN and JUNE ROBINSON (WAI 521 CLAIMANTS, NGATI APA)
		Appellants

	AND	TE RUNANGA O NGAI TAHU
		First Respondent

	AND	THE WAITANGI TRIBUNAL
		Second Respondent

	AND	BARRY MATTHEW MASON, SHARON GEMMELL, JOHN TE RANGI O KIWA MORGAN, ROBERT PINEAHA STEPHENS, ARTHUR PHILLIPS, WIREMU TAPATA STAFFORD and RUSSELL JAMES THOMAS
		Third Respondents

	AND	KERI WRIGHT STEPHENS, MARAMA JOAN STEVENS, FREDERICK TE MIHA, HEMINGAMOANA ROPATA, JAMES ALBERT PATRICK MYERS and JOHN TAHANA WARD-HOLMES (WAI 723 CLAIMANTS, NGATI TAMA)
		Fourth Respondents

	AND	HER MAJESTY QUEEN ELIZABETH II
		Fifth Respondent

	AND	EDWARD CHAMBERS JUNIOR (WAI 469 CLAIMANTS, NGATA AWA)
		Sixth Respondent

	AND	ELAINE JOSEPHINE WILSON, JAMES HAKARAIA WALKER, MARIE DAWN HART, TANIA ROSLYN HIPPOLITE, PETER CHESTER HEMI and PAATA HIPA MCCREADY (WAI 561 CLAIMANTS, NGATI KUIA)
		Seventh Respondents

	AND	JANE DU FEU, C H BYRNE, B E A BILLENS, A J F BUNT, C M LOVE, H T RURU, R M T PARK, L BAILEY, R POWICK and T NORTON (WAI 607 CLAIMANTS, TE ATIAWA)
		Eighth Respondents

	AND	PIRIHIRA HAMMOND, ARIANA RENE, RUTA RENE, MATUAIWI SOLOMON, RAMARI WINEERA, HAUTANGA TE HIKO-LOVE, WIKITORIA WHATU, RINGI HOROMONA, HARATA HOROMONA, RANGI WERETA, TUTIRA WILLIAMS, RUIHI HOROMONA and MANU KATENE (WAI 207 CLAIMANTS, NGATI TOA)
		Ninth Respondents

	AND	FRANK MCDONALD and ENOKA MCDONALD (WAI 44 CLAIMANTS, RANGITANE)
		Tenth Respondents

Hearing:

1-2 October 2001

Coram:	Richardson P Gault J Blanchard J Tipping J McGrath J
Appearances:	D L Mathieson QC for Appellants J O Upton QC, C B Hall and R E Brown for First Respondent W M Wilson QC for Second Respondent T J Castle and E R Shaw for Third Respondents J P Ferguson and S M Sharpe for Fourth and Seventh Respondents M Doogan and K C Millard for Fifth Respondent No appearance for Sixth, Eighth and Tenth Respondents P B Churchman and K E Mitchell for Ninth Respondents
Judgment:	1 November 2001

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

[1] This appeal and cross appeal from McGechan J concern proceedings pending in the Waitangi Tribunal. The case is a sequel to the decision of this Court in Ngati Apa Ki Te Waipounamu Trust v The Queen [2000] 2 NZLR 659 to which we will refer as Ngati Apa No. 1. That judgment and this should be read in conjunction and we have proceeded on that basis to avoid unnecessary repetition.
[2] Following Ngati Apa No. 1, Ngati Apa and other iwi, named as respondents, have pursued claims in the Waitangi Tribunal alleging various treaty grievances. Those grievances have, at least in part, as their basis, matters which occurred within (or with reference to) land in Ngai Tahu’s takiwa as defined in the TRONT Act and discussed in Ngati Apa No. 1. In the course of readying the claims for hearing, the Tribunal gave directions concerning Ngai Tahu’s ability to cross-examine witnesses at the consolidated inquiry which the Tribunal was conducting into the various claims. Ngai Tahu contended in the High Court that the directions, which substantially postponed Ngai Tahu’s ability to cross-examine, represented a breach of natural justice from its point of view. McGechan J upheld that contention ([2000] 3 NZLR 87). Ngati Apa and the other claimants now appeal against that aspect of his decision.
[3] Ngai Tahu also contended in the High Court that the Tribunal had no jurisdiction to inquire into the claims made by Ngati Apa and the other claimants, because to do so was necessarily inconsistent with and precluded by various legislative provisions and, in particular the Treaty of Waitangi Act 1975, the settlement deed entered into by the Crown and Ngai Tahu, and the Settlement Act passed in accordance with and to ratify the deed. McGechan J rejected this contention and held that the Tribunal had jurisdiction to inquire into the claims, reserving, as it had, any jurisdictional issues for consideration on an issue by issue basis in accordance with the evidence as it emerged. Ngai Tahu cross appeals against this aspect of McGechan J’s decision and it is logical to discuss the issues arising on the cross appeal first.

The Tribunal’s jurisdiction

[4] The proceedings in the Tribunal are only at the interlocutory stage. The Tribunal has come to no formal conclusions. They can, in any event, have no more than recommendatory force. As indicated at the hearing, we are of the view that the judgments in this Court in Ngati Apa No. 1 are such that the cross appeal must fail. Mr Upton QC for Ngai Tahu was constrained to accept that this had to be the case unless the relevant passages in the judgments were, as he contended, obiter dicta and thus not binding in the present proceeding, albeit he sought to resile to some extent from that stance in a memorandum lodged after the hearing to which we make reference below. Whether the relevant passages are part of the ratio of Ngati Apa No. 1, necessarily dictated by it, or simply dicta, we do not think it appropriate in present circumstances to revisit them. They were fully considered statements made in relation to the amendment issue (see paragraph [10] below) and leading to the clear conclusion that the Tribunal has jurisdiction to inquire into the claims of Ngati Apa and the other claimants. That is how both the Tribunal and McGechan J construed them, and they were right.
[5] The passage most directly relevant is in the judgment of Blanchard and Tipping JJ at paragraph [158]:

The High Court’s inability to set aside the order does not prevent Ngati Apa from alleging as part of its claim to the Waitangi Tribunal that the making of the order and indeed the legislation based upon it represented a breach of its Treaty rights. Again, whether such an allegation would be well founded is an entirely open question. The present proceeding, as noted in para [139], seeks a declaration that Ngati Apa’s claim to the Waitangi Tribunal is valid and that the Waitangi Tribunal has jurisdiction to hear and adjudicate upon it. That aspect of the claim is presumably an attempt to get a declaration from the Court that the order does not prevent Ngati Apa from making a claim to the tribunal or the tribunal from considering it. We can say immediately that the order cannot be regarded as having that effect. Indeed, as we have said, the order could itself be a source of complaint to the tribunal. As the Waitangi Tribunal’s powers are recommendatory only, nothing it may do can affect the legal position of Ngai Tahu or anyone else without legislative action. If therefore, in spite of or because of the order, the Waitangi Tribunal considers that Ngati Apa has a justified Treaty grievance on any basis, it may make such recommendation on the subject as it thinks fit.

[6] Also relevant is the following passage in paragraph [159] of Their Honours’ judgment:

... Ngati Apa may, if it sees fit, complain to the Waitangi Tribunal about the circumstances in which the order was made and indeed about the effect of the order. The tribunal may investigate those complaints, if otherwise coming within its jurisdiction. The tribunal can make such recommendations on these issues as it sees fit.

[7] The Chief Justice would have gone further than Blanchard and Tipping JJ and by clear implication her view must have included the views of Blanchard and Tipping JJ set out above. Gault J, who dissented in certain respects, nevertheless said at paragraph [98]:

I add this comment that if the position is as asserted, denial to Ngati Apa of the opportunity to advance a claim inconsistent with a statute might itself be a breach of their Treaty rights. That is not a matter for the Courts, however, as they are bound to give effect to the statutes of Parliament.

[8] It is clear from the cited statements, as indeed it is from s6(1) of the Treaty of Waitangi Act 1975, that a Treaty grievance can be founded on the terms of legislation. It must follow that a grievance can also be based upon something (here the order of the Maori Appellate Court) which has formed the basis of legislation. There is nothing in the legislation to which Mr Upton referred which prevents the Tribunal from inquiring into the claims which Ngati Apa and the other claimants have made. It was for these reasons that we came to the view expressed at the hearing that Ngai Tahu’s cross appeal could not succeed.

Adjournment

[9] When we announced our view that the cross appeal could not succeed because of Ngati Apa No. 1, Mr Upton sought an adjournment so that the Court could be reconstituted with seven Judges for the purpose of reviewing the correctness of Ngati Apa No. 1. We heard argument from both sides on the application and declined it for the reasons we now give. Ngai Tahu's request for an adjournment to enable a challenge to be made to Ngati Apa No. 1 must been seen against the background of a memorandum which Mr Upton had filed on their behalf a few days before the hearing. In it counsel advised:

• (a) [Ngai Tahu] does not seek to invite this Court to revisit the decision of the Court of Appeal in the earlier Ngati Apa case and says that the decision of the majority (Gault, Blanchard and Tipping JJ) is obviously the ratio decidendi in respect of the first prayer for relief. The decision on the second prayer for relief is unchallenged and is proceeding in the High Court in CP115/98.
• (b) If the other parties seek to challenge the earlier Ngati Apa decision or invite the Court to reach a different conclusion, they should have given notice as this Court has required on a number of occasions.
• (c) The persistent misinterpretation by the appellant and the other respondents of the decision of the Court of Appeal in the first Ngati Apa case may make it necessary for the Court to revisit the earlier decision and clarify the position although it is stressed that this will not be at the instigation of Ngati Tahu.

[10] As it turned out the misinterpretation was that of Ngai Tahu, not the appellants. Ngai Tahu did not suggest that if its view of Ngati Apa No. 1 was wrong it would seek to revisit that decision. Its view was clearly under challenge by the appellants and was inconsistent with the approach which McGechan J had taken in the High Court. While Ngati Apa No. 1 had as its first focus whether the order of the Maori Appellate Court could be set aside, there was an additional issue, in accordance with standard strike out jurisprudence, as to whether an amendment to the prayer for relief from an order setting aside to a declaration of invalidity might keep Ngati Apa’s proceeding alive. The amendment issue engaged wider questions than the setting aside issue.
[11] The adjournment application was, in our view, made far too late. The point could not, in fact, have been dealt with by adjournment. A complete rehearing would have been necessary. There had been no suggestion that Ngai Tahu would take such a stance at any prior stage; indeed indications were clearly to the contrary. Mr Upton stated that his memorandum had been based on Ngai Tahu’s perception of the ratio of Ngati Apa No. 1. That was by no means clear and, in any event, at this interlocutory stage of the proceedings in the Tribunal, we considered it important that progress be made with the substantive hearing. We did not consider it to be in the public interest, or indeed in the interests of the other parties, to allow the delay and expense that an adjournment would necessarily have involved. It was, in our view, time for the real issues to be addressed by the Tribunal without any further interlocutory warfare.

Cross-examination

[12] The Tribunal is effectively a Commission of Inquiry and Ngai Tahu sought the right to be heard in the claims brought by Ngati Apa and the other iwi. That application was based on s4A of the Commissions of Inquiry Act 1908. Ngati Apa did not seek party status as such. The Tribunal heard detailed argument about procedure and ruled:

Ngai Tahu will have no rights to cross-examine during the course of the claimant’s presentation of evidence or to make submissions during the course of claimant hearings.

[13] The Tribunal directed Ngai Tahu to particularise the matters upon which they wished to be heard within 28 days of the completion of each claimant’s hearing. The particulars were to include “the persons whom Ngai Tahu wished to cross-examine and the nature of the evidence to be cross-examined”. The Tribunal then embarked upon the question whether and to what extent Ngai Tahu should be granted leave to be heard. It did not make any general ruling but left matters to a case by case approach saying:

If leave is granted Ngai Tahu will be heard after all claimants have presented their evidence and before the Crown presents its evidence. As indicated above, this may involve the recalling of certain witnesses. If this is done we consider it would be less disruptive, less time-consuming and less costly than the ring fencing proposal put forward by a significant number of [claimants].

[14] The cross-examination issue was thus left on the basis that if Ngai Tahu was given a right to be heard, cross-examination would necessarily take place on a deferred basis. Although the focus of the High Court challenge was on the cross-examination issue, it is difficult to sever the questions of cross-examination and right to be heard. But in the light of the view we take, it is sufficient to concentrate on the cross-examination point. In his judgment McGechan J reached the view that:

the Tribunal’s proposal to divorce cross-examination by Ngai Tahu for a period which may run for some two or three years after a witness has given evidence-in-chief amounts to a denial of the Ngai Tahu right to be heard and accordingly is a breach of natural justice.

[15] His Honour also held that a right of cross-examination delayed as proposed was not a sufficiently useful right. It was insufficient from all perspectives, in his view, and the insufficiencies compounded. On this basis the Judge made a declaration that the Tribunal’s direction that Ngai Tahu be heard after all claimants had presented their evidence would deny Ngai Tahu an adequate right to be heard and was thus in breach of natural justice.
[16] In giving his decision, McGechan J did not make any reference to the different types of evidence that witnesses might give to the Tribunal. There is no need for us to go into detail. It seems clear that certain types of evidence may not really be susceptible of cross-examination at all and other types, such as evidence from historians, may pose no significant difficulty if cross-examination is substantially deferred. It is possible that in the case of a particular witness immediate cross-examination would be desirable, perhaps even necessary. We do not understand the Tribunal to have foreclosed on that possibility. To have done so would have been unduly rigid. But, with respect to the Judge, and with that caveat, we are unable to view the Tribunal’s directions on cross-examination as necessarily raising any real risk of a breach of natural justice. The Tribunal knows the nature of its work and the types of evidence it usually encounters. As a general blueprint we cannot see any natural justice flaw in what the Tribunal has directed. It will, however, need to be alert to the fact that particular circumstances may require particular treatment. Its ultimate touchstone must always be to afford natural justice to those who have a right to be heard.
[17] McGechan J said of the Tribunal’s directions “that the area which cannot stand is the degree of deferral [of cross-examination] proposed”. He added “it must be reduced to proportions which are reasonable given forensic needs and earlier time available”. In approaching the matter in that way the Judge may have tended to apply his own view of what was reasonable rather than applying the necessary judicial review approach of inquiring whether the Tribunal’s view was one which it could reasonably reach. Indeed the Judge had already held that there was no irrationality (ie. Wednesbury unreasonableness) in what the Tribunal had directed.
[18] We are also influenced in our conclusion by the fact that to determine that there will necessarily be a breach of natural justice arising from the Tribunal’s cross-examination direction, has an element of prematurity about it. The Court is dealing with a procedural direction of a specialist Tribunal. Unless there is some fundamental flaw in such direction, it is preferable to await the outcome of the substantive proceedings and then examine whether any prejudice has actually resulted. We do not think the High Court should readily intervene in matters of this kind on an anticipatory basis.
[19] Having carefully reviewed the competing submissions, which we have not found it necessary to discuss individually, we are of the view that there were no grounds for the High Court to interfere with the procedural directions given by the Tribunal.

Post hearing memoranda

[20] The Court has considered Mr Upton’s request for leave to file the memorandum of 4 October 2001 which was lodged for our consideration. We have also considered the replies from Ngati Apa and Ngati Rarua, and subsequent memoranda. We are of the view that some of the matters raised by Ngai Tahu are repetitious of points earlier made and, to the extent that further matters are drawn to our attention, they are essentially covered by the prematurity point made in paragraph [18] above.
[21] Specifically we regard the particularisation point raised by the fourth cause of action as covered by prematurity considerations. It cannot be predicated that any natural justice concerns will necessarily arise on this aspect of the case. Nor do we consider Ngai Tahu are in any different position in respect of its third cause of action relating to s6A(6) of the Treaty of Waitangi Act. What the Tribunal may make of Ngai Tahu’s case on this point remains to be seen. It would not in the circumstances be appropriate for anything more to be said on this topic or, indeed, on the first and second causes of action at this interlocutory stage. On this basis, and also on account of prejudice to other parties, we decline to grant leave for Mr Upton’s memorandum of 4 October 2001 to be filed.

Conclusion/formal orders

[22] For the reasons given the cross appeal is dismissed, and the appeal is allowed. The declaration made in the High Court is set aside. Ngai Tahu’s seventh cause of action is dismissed. Ngai Tahu are ordered to pay costs in this Court as follows:

• to the appellants the sum of $10,000
• to the third respondents the sum of $7,500
• to the fourth and seventh respondents the sum of $5,000 in total not each
• to the ninth respondents the sum of $5,000.

[23] The Crown, as fifth respondent, did not seek costs. There was no appearance for the sixth, eighth and tenth respondents. In each case, in addition to the sum awarded for costs, the parties concerned are to have their disbursements, including the reasonable travel and accommodation expenses (of one counsel) if applicable, to be fixed if necessary by the Registrar.
[24] We note that in the High Court the Judge reserved costs. If any orders have been made, they are set aside and costs in the High Court are to be fixed in that Court in the light of the outcome of the proceedings in this Court.

Solicitors
Gascoigne Wicks, Blenheim for Appellants
Bell Gully, Wellington for First Respondent
Crown Law Office, Wellington for Second Respondent
Wain and Naysmith, Blenheim for Third Respondents
Walters Williams & Co, Wellington for Fourth and Seventh Respondents
Crown Law Office, Wellington for Fifth Respondent
KPMG Legal, Wellington for Ninth Respondents