MORLEY PAIKEA POWELL AND ON & ORS v A N D THE MINISTER IN CHARGE OF TREATY & ORS [2001] NZCA 355 (13 September 2001)

IN THE COURT OF APPEAL OF NEW ZEALANDCA299/00

BETWEEN MORLEY PAIKEA POWELL AND ON BEHALF OF NGA URI O TE TAOU TRIBE INC.

Appellant

AND THE ATTORNEY-GENERAL

First Respondent

A N D THE MINISTER IN CHARGE OF TREATY OF WAITANGI NEGOTIATIONS

Third Respondent

AND THE CHAIRMAN OF THE NGATI WHATUA O ORAKEI MAORI TRUST BOARD

Fourth Respondent

Hearing: 2 August 2001

Coram: Elias CJ

Thomas J

Anderson J

Appearances: Appellant in person

P J Andrew and A Irwin for First and Third Respondents

D E Wackrow for Fourth Respondent

Judgment: 13 September 2001

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JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

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[1] This is an appeal against an interlocutory order of the High Court striking out parts of the appellant's statement of claim and directing an amendment to the form of certain relief.The directed amendment is of particular concern to the appellant.In earlier similar proceedings brought by Mr Powell there had also been an order for striking out.On an appeal to this Court the order was quashed and leave was granted to Mr Powell to amend the statement of claim - Powell v Attorney-General & Anor, CA167/99, 28 June 2000.

[2] Rather than amending the statement of claim Mr Powell issued fresh proceedings on behalf of the present appellant.We are not sure why he took that step, but as he does not appear to be pursuing both sets of proceedings in tandem the procedure he adopted is not presently material.What is in issue is whether the orders affecting the prayer for relief should have been made.

[3] What Mr Powell seeks is a judicial determination of the statutory scope of any authority of the Ngati Whatua O Orakei Trust Board to negotiate claims against the Crown and other authorities in relation to the Tamaki isthmus.There is a perception of important derivative issues in relation to the origins, history, rights and dignities of Ngati Whatua iwi and associated hapu, in particular Nga Uri O Te Taou.Mr Powell's concern is that the amendment to relief directed by the High Court does not envisage the nature and span of the concerns which he seeks to address by this proceeding.

[4] In its decision reinstating the earlier proceeding this Court expressed its anxiety that Mr Powell should have every opportunity to identify the real issue on which he seeks the assistance of the Courts.A possible area of concern was the question of whom the Ngati Whatua O Orakei Maori Trust Board has a mandate to represent having regard to statutory provisions.Another possible issue was whether the Trust Board has acted beyond the powers conferred on it by s 19(1) of the Orakei Act 1991, and in so doing interfered with the interests of people who are not part of the Ngati Whatua O Orakei hapu.

[5] In relation to the interlocutory matters on the present proceeding Mr Powell filed a written submission that, in effect, the attempt to strike out the plaintiff's statement of claim was to divert the plaintiff's justiciable arguments relating to the Orakei Act 1991 and to deny the plaintiff the stated purpose of this Court's grant of leave to him on the earlier appeal. He expressed the plaintiff's arguments clearly and succinctly in these terms in the written submission:-

1.3 That the crux of the Plaintiff's justiciable argument is the question of the scope and the intent of the Orakei Act 1991, in granting a measure of:

(i) mana whenua over the Te Taou hápú tribal estate in favour of the Trust Board

AND

(ii) the extent of the "sole mandate to negotiate any future treaty settlements", granted to the Trust Board, by S19/1 of the Orakei Act 1991

1.4 Alternatively the subsidiary grounds of the Plaintiff's justiciable arguments are:

(iii) whether the Act 1991 grants mana whenua to the Trust Board over the entire Te Taou Tribal Estate, OR

1.5 only over the Bastion Point/Orakei Bay portion, which includes the Orakei Marae of the Te Taou Tribal Estate.

1.6 The third area of concerns that was not addressed and is relevant to the core crucial justiciable argument, is the question of just how binding are the constraints of the full and final agreement, made by the Trust Board with the Crown, allegedly on the Te Taou hápú, in its context of its traditional regional tribal alliance known as Ngapuhi Whanui.

[6] Judicial analysis of relevant legislation is likely to include references in the long title and preamble of the Orakei Block (Vesting and Use) Act 1978 to "the Taou, Ngaoho, and Te Uringutu hapu of Ngati Whatua", s 2 and s 19 of the Orakei Act 1991, as mentioned in this Court's earlier judgment.Matters of real, practical and continuing concern to the plaintiff may well exist, relative to how and by whom the legislation may be interpreted in the absence of a judicial declaration.The whole purpose of a declaration by a Court is to bind all those relevantly affected to observance of the legal position so declared.

[7] It is therefore understandably unsatisfactory to the appellant that issues and relief which it considers important should be re-cast to accommodate what other parties to the litigation may think more relevant to their perceptions. If issues are tenably justiciable and proposed forms of relief tenably available then, as a general proposition, the plaintiff should be entitled to proceed upon them.

[8] One prayer for relief challenging the legislation itself is not so tenable, as this Court has previously held.It appears as paragraph 5.1 in the prayer for relief which was properly struck out.The prayers for relief in paragraphs 5.0, 5.2 and 5.3 cannot be categorised as not tenably justiciable nor tenably available and the plaintiff should therefore be entitled to proceed upon them. They are in these terms:-

5.0 A declaration that the valid Te Taou hapu of the Ngati Whatua Iwi is not a subtribe of the Orakei hapu of the Orakei Marae Whanau Community and is therefore not represented by the Trust Board as in a traditional Iwi infrastructural association.

5.2 A declaratory order declaring that in that part portion of the Te Taou subtribal territory also known as the Auckland Isthmus, the valid subtribal entity of the Ngati Whatua alliance of subtribes (Iwi), the Te Taou hapu, share the mandate to negotiate all Future Treaty Settlements within the NZ Crown's Process, with the Trust Board, on the grounds that aboriginal/native property rights correctly belongs to the Te Taou hapu proper and not to the Orakei hapu/Trust Board.

5.3 A declaratory order declaring that in all the other parts of the Te Taou subtribal territory not mentioned by the Orakei Act 1991, the Te Taou tribal entity has a right of mandate to negotiate treaty settlements on its own behalf AND where applicable, together with other Tuku Whenua hapu Tenants AND with other Ngati Whatua subtribal hapu sharing those areas, if they should so choose.

[9] The essential effect of the respondents' arguments is that the amended prayer for relief, as settled by the Judge, correctly encapsulates the real issue.The other issues are perceived as irrelevant or unnecessary and if pursued may well lead to undue litigation.

[10] With respect, that approach runs the risk of seizing the plaintiff's own take and reshaping it in terms of the respondents' own perceptions.That course may well prolong a grievance rather than resolving it.We think the time has come to end the interlocutory skirmishing and litigate what the appellant perceives as the essential issues themselves.

[11] For these reasons the appeal is allowed.The orders made in the High Court striking out paragraphs 5.0, 5.2 and 5.3 of the statement of claim and re-framing the prayer for relief are quashed.The result is that the said paragraphs 5.0, 5.2 and 5.3 are reinstated and the litigation may proceed on that basis.

[12] As on the earlier appeal, Mr Powell is entitled to his own travel and accommodation expenses, if any, and other necessary disbursements in relation to this appeal as approved, if necessary, by the Registrar.

Solicitors

Crown Law Office, Wellington, for First and Third Respondents

Wackrow Smith & Davies, Auckland, for Fourth Respondent