Te Runanga O Ngai Tahu v Hemi CA82/01 [2001] NZCA 392; (2001) 15 PRNZ 563 (13 December 2001)

Last Updated: 9 November 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA82/01

	AND	TE RUNANGA O NGAI TAHU
		Applicant

	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)
		First Respondents

	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 (WAI 594 CLAIMANTS, NGATI RARUA)
		Third Respondents

	AND	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:	10 December 2001
Coram:	Richardson P Tipping J Anderson J
Appearances:	C P Finlayson & C B Hall for Applicant D L Mathieson QC for First Respondent W M Wilson QC for Second Respondent - abides decision of the court T J Castle and E R Shaw for Third Respondents J P Ferguson for Fourth Respondents M J Doogan and K C Millard for Fifth Respondent P B Churchman and B E Ross for Ninth Respondents
Judgment:	13 December 2001

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

[1] Te Runanga O Ngai Tahu applies pursuant to r2(b) of the Privy Council Rules for conditional leave to appeal to the Privy Council against the judgment of this court delivered on 1 November 2001 relating to the proceeding pending in the Waitangi Tribunal. The court allowed the appeal by Ngati Apa and other iwi against part of the judgment of McGechan J reported at [2001] NZHC 248; [2001] 3 NZLR 87 directed to the ruling by the Waitangi Tribunal as to when Ngati Tahu could crossexamine witnesses in the Waitangi Tribunal proceeding and dismissed the crossappeal by Ngai Tahu directed to the jurisdiction of the Tribunal to hear the claims.
[2] The proceeding before McGechan J was a sequel to the decision of this court in Ngati Apa Ki Te Waipounamu Trust v The Queen [2000] NZCA 45; [2000] 2 NZLR 659 which, for convenience, we shall refer to as Ngati Apa (No 1). Following that decision Ngati Apa and certain other iwi 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 takiwa as defined in the Te Runanga o Ngai Tahu Act 1996 which constituted the runanga as a representative of all Ngai Tahu for the purposes of settlement of the Ngai Tahu claims. The Act also identified the area of takiwa of Ngai Tahu on the basis of a determination by the Maori Appellate Court in 1990.
[3] As this court recounted in the judgment from which leave to appeal is sought:

[2] ... 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 ... .

[4] On the jurisdiction issue the court held that the relevant passages in the judgments in Ngati Apa (No 1) as to jurisdiction, whether strictly part of the ratio, necessarily dictated by it or simply dicta, were fully considered statements leading to the clear conclusion that the Tribunal had jurisdiction to inquire into the claims of Ngati Apa and the other claimants. It was not appropriate in the present circumstances to revisit those statements. The proceeding in the Tribunal was only at the interlocutory stage. The Tribunal could only make recommendations. Further, as a Treaty grievance could be founded on the terms of the legislation, it followed that it could also be based upon something (in this Tribunal proceeding the order of the Maori Appellate Court) which formed the basis for the Te Runanga o Ngai Tahu Act.
[5] When in the course of the hearing the court intimated its decision that the Waitangi Tribunal had jurisdiction to inquire into the claims, Mr Upton QC for Ngai Tahu sought a hearing before a court of seven to challenge the five Judge court's interpretation of Ngai Apa (No 1). An adjournment for that purpose was refused.
[6] The crossexamination issue arose from the Tribunal's ruling that if Ngai Tahu (which had not sought party status as such) were given leave to be heard on particular matters, crossexamination would take place on a deferred basis. McGechan J reached the view that "the Tribunal's proposal to divorce crossexamination by Ngai Tahu for a period which may run for some two or three years after a witness has given evidenceinchief amounts to a denial of the Ngai Tahu right to be heard and accordingly is a breach of natural justice".
[7] On the appeal this court noted that, as it saw it, the Tribunal had not foreclosed on the possibility of the desirability of immediate crossexamination occurring in respect of particular witnesses; adding that, for it to have done so, would have been unduly rigid and that to determine that there will necessarily be a breach of natural justice arising from the Tribunal's crossexamination 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.
[8] Mr Finlayson submitted that there were two issues in the proposed appeal justifying the grant of conditional leave under r2(b). The first is whether the court was correct in finding that the Waitangi Tribunal has jurisdiction to inquire into claims of Ngati Apa and th other claimants within the Ngai Tahu takiwa and that there is nothing in the legislation that prevents the Tribunal from so inquiring; and in that regard Mr Finlayson also submitted that the court erred in holding that there was a binding ratio in Ngati Awa (No 1) upholding the jurisdiction of the Tribunal to inquire into the claims.
[9] The second is whether the court erred in finding that there was no breach of natural justice in permitting contemporaneous crossexamination by the Crown and claimants but denying that to Ngai Tahu.
[10] In terms of r2(b) an appeal to the Privy Council lies at the discretion of this court if in the opinion of the court the question involved in the appeal is "one which by reason of its great general or public importance or otherwise" ought to be submitted to Her Majesty in Council for decision. For reasons which we can state quite shortly, we are persuaded that the jurisdictional issue comes within the stated criteria but that nevertheless, in the exercise of the discretion under the Rule, leave should be refused.
[11] Mr Finlayson submitted at the high point in his argument that the proceeding before the Waitangi Tribunal, in so far as any claims may bear on the takiwa of Ngai Tahu, would necessarily derogate from its historic settlement with the Crown, the Ngai Tahu Claims Settlement Act 1998 enacted to give effect to the settlement reached, and the recognition of the area of its takiwa in the earlier Te Runanga o Ngai Tahu Act 1996. Mr Finlayson accepted that the Ngati Apa and other claims were against the Crown, not against Ngai Tahu, and that the Waitangi Tribunal's conclusions in relation to those claims would be recommendatory only. But, he said, because of the settlement and the statutory provisions, no other iwi could assert a grievance affecting anything within Ngai Tahu's takiwa and the Waitangi Tribunal could not entertain any such claims. To do so, he submitted, would diminish the recognition of Ngai Tahu as tangata whenua of, and as holding rangatiratanga within, the takiwa of Ngai Tahu. It would, he said, affect the integrity and durability of the settlement between Ngai Tahu and the Crown and the ability of Ngai Tahu and the Crown to move forward on the basis of that settlement.
[12] We readily accept that, put in this way, the jurisdictional issues are potentially of public importance and of great importance to Ngai Tahu and the present claimants before the Waitangi Tribunal. They meet the overall criteria set in r2(b). But we are not persuaded that they require resolution at this point and there are powerful reasons against granting leave. The proceeding in the Tribunal is only at the interlocutory stage. The Tribunal has yet to determine any jurisdictional issues beyond its decision to begin inquiring into the claims. It has reserved any jurisdictional question for consideration on an issue by issue basis in accordance with the evidence as it emerges. We accept the strong submission for the Crown that it sees no risk to the integrity and finality of its settlement with Ngai Tahu arising from the hearing of the Ngati Apa and other iwi claims before the Waitangi Tribunal. There is, too, a clear sense of prematurity overhanging the present application to go to the Privy Council. As well, on one perspective at least, the present application is a belated attempt to raise Ngati Apa (No 1) before the Privy Council. Meanwhile, considerable time has passed. As the court emphasised in the judgment of 1 November 2001, it is important that progress be made with the substantive hearing. It is time for Ngati Apa and other iwi claims to be addressed before the Tribunal. In the exercise of our discretion under r2(b) we are satisfied that conditional leave on the jurisdictional question should be refused.
[13] We turn to the second question in respect to which leave to appeal is sought. We are satisfied that there is no case for granting leave. The proposed question concerns the procedures to be followed in and under the control of the experienced specialist Tribunal. Clearly its general direction deferring any Ngai Tahu crossexamination will be subject to allowing immediate crossexamination where that is required in the interests of justice.
[14] The application for conditional leave to appeal is refused with costs on the application to the first, third, fourth and ninth respondents, in each case in the sum of $2,500 together with all reasonable disbursements as fixed, if necessary, by the Registrar. There will be no order as to costs in respect of the Waitangi Tribunal and the Crown.

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