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Ngati Apa Ki Te Waipounamu Trust v Attorney-General & Ors [2004] NZCA 29 (23 March 2004)

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Ngati Apa Ki Te Waipounamu Trust v Attorney-General & Ors [2004] NZCA 29 (23 March 2004)

Last Updated: 1 April 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA192/02
CA201/02

BETWEEN NGATI APA KI TE WAIPOUNAMU TRUST
First Applicant

AND NGATI RARUA IWI TRUST AND ANOTHER
Second Applicant

AND ATTORNEY-GENERAL
First Respondent

AND TE RUNANGA O NGAI TAHU
Second Respondent

Hearing: 15 March 2004

Coram: McGrath J
William Young J
O'Regan J

Appearances: R D Crosby and Q A M Davies for First Appellant
T J Castle and B H M Miller for Second Appellant
M J Doogan and S T Rasmussen for First Respondent
C F Finlayson and R E Brown for Second Respondent

Judgment: 23 March 2004

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1] The applicants, the Ngati Apa Ki Te Waipounamu Trust ("Ngati Apa") and the Ngati Rarua Iwi Trust ("Ngati Rarua") seek conditional leave to appeal to the Privy Council from a judgment of this Court delivered on 22 October 2003: Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2004] 1 NZLR 462. In that judgment the Court dismissed an appeal against a judgment of France J in which she had dismissed applications for judicial review of a decision of the Maori Appellate Court, made as long ago as 12 November 1990, on the basis of breaches of natural justice. The High Court judgment, which was delivered on 1 September 2002, is reported at [2003] 1 NZLR 779. In its introductory section France J summarises the history of various proceedings brought since 1990 by way of challenge to the Maori Appellate Court decision which culminated in her judgment and that which is the subject of the appeal to this Court. It is unnecessary for us to discuss these in any detail other than to point out that the matter has already been before the Privy Council when a petition for leave to appeal against the Maori Appellate Court decision, without first bringing the issues before the High Court and Court of Appeal, was dismissed.

Judgment under appeal

[2] The decision of the Maori Appellate Court determined a question which had been referred to it by the Waitangi Tribunal for that Court’s decision under s6A of the Treaty of Waitangi Act 1975. The question concerned the boundaries of tribal ownership in the upper South Island for the purpose of a claim made by Ngai Tahu which was before the Tribunal. Ngati Apa, Ngati Rarua and Ngati Toa were cross-claimants before the Maori Appellate Court, and in due course applicants for judicial review of its decision in the High Court. They were each appellants in the appeal determined by this Court’s judgment of 22 October 2003.
[3] In a previous judgment in the current proceeding, dismissing a strike-out application by Ngai Tahu (reported at [2000] 2 NZLR 659), this Court had ruled that the cross-claimants could seek a declaration from the High Court that the Maori Appellate Court’s decision was invalid, on account of procedural improprieties and breaches of natural justice. Those grounds related to alleged disparities in funding between Ngai Tahu and the cross-claimants, and the alleged failure of the Maori Appellate Court to provide the cross-claimants with an opportunity to be heard.
[4] In the judgment the subject of the present application, this Court accepted contentions of Ngati Apa and Ngati Rarua that the rules of that natural justice required that those affected by the proceeding before the Maori Appellate Court, including all the cross-claimants, were entitled to a fair hearing, including adequate notice of the proceeding and a reasonable opportunity to present their cases. The cross-claimants as appellants had sought to have the Court supplement those requirements by reference to the Treaty of Waitangi. The Court concluded, however, that the supplementary obligations and mandatory procedures suggested by the cross-claimants by reference to the Treaty did not add anything to the requirements of natural justice and fairness, saying at para [33]:

In the circumstances of this case – quite apart from the issue of principle – we cannot see that the proposed additional obligations make any difference. They appear to us to be encompassed within the requirements of natural justice and fairness. Accordingly we do not reach the question – answered in the negative by France J – whether the MAC case stated procedures are subject to the Treaty in some way.

[5] This Court then considered the submission that there was a funding disparity between Ngai Tahu and the cross-claimants in the Maori Appellate Court that led to unfairness. The cross-claimants argued that, in the circumstances, the Maori Appellate Court should have adjourned the hearing until additional funding for research on behalf of the cross-claimants could be obtained. This Court rejected this submission observing that courts in civil cases, unlike serious criminal cases, do not in general have the power to stay proceedings where to continue would cause serious unfairness. Also, in this instance, exercise of a power to stay proceedings would frustrate the purpose of the legislation by inhibiting the very process that the case-stated procedure before the Maori Appellate Court had been designed to facilitate. This Court also concluded that there was insufficient evidence in any event to provide the basis for finding that there was such a disparity of funding that the proceedings became unfair. The Maori Appellate Court had adjourned the hearing three times over a period of 15 months to accommodate the cross-claimants’ difficulties in preparation and, when the hearing finally commenced, none of the cross-claimants had expressed any opposition to it proceeding.
[6] The Court further decided that all three cross-claimants had the opportunity to be heard, in the case of Ngati Apa and Ngati Rarua through their representative organisation Te Runanganui. Adequate notice of the hearing and its scope had been given. Te Runanganui had undertaken extensive research and presented its case over several days. At no stage had it complained about its funding or preparedness. Similarly Ngati Toa did not express any concern about its preparedness to proceed at the hearing or its funding. The Court accordingly decided, in agreement with France J, that none of the appellant cross-claimants, including Ngati Apa and Ngati Rarua, had established that they did not have a fair hearing. In each case they did have a reasonable opportunity to be heard. The appeal, accordingly, was dismissed.

Applications for conditional leave

[7] Ngati Apa and Ngati Rarua now apply for conditional leave to appeal to the Privy Council against the Court’s judgment on the grounds of errors of law and fact. Ngati Toa has not applied. Legal issues which Mr Crosby for Ngati Apa says that it wishes to raise before the Privy Council (in submissions adopted by Mr Castle for Ngati Rarua) concern the requirements of natural justice in Maori Appellate Court proceedings. He summarised the propositions to be raised by the appeal as follows:

a. Where a group of people have similar (but not the same) interests in the subject matter of the proceeding, does it satisfy natural justice that only some of that group have knowledge of the proceedings?

b. Where that group is an iwi, and collective decisions of an iwi are made through hui, does it breach natural justice for no hui to be held and only certain members of that group to be aware of the proceedings?

c. Where a Court has specified a process to ensure representatives are properly mandated and the Court knows that that process has not been followed, can such a Court proceed without a careful reconsideration to ensure the process is procedurally fair?

d. Are newspaper articles a sufficient substitute for a fully informative notice?

e. Does a newspaper article, not generated by Ngati Apa as any part of a call for a hui, cure any breach of natural justice by raising an opportunity for Ngati Apa collectively to meet and respond to the propositions contained therein?

[8] By way of elaboration Mr Crosby said that in the context of a hearing process which is inquisitorial Ngati Apa would argue that there was a duty on the part of a Court to ensure that all relevant information, including material in the hands of the Crown, was put before it. Likewise counsel would argue that in a Treaty case a significant disparity of resourcing of information between opposing parties amounted to a breach of natural justice.
[9] The relevant provisions of the New Zealand (Appeals to the Privy Council Order) 1910 (the Rules) are:

2. Subject to the provisions of these Rules, an appeal shall lie-
(a) As of right, from any final Judgment of the Court of Appeal where the matter in dispute on the appeal amounts to or is of the value of NZ$5000 or upwards, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of NZ$5000 or upwards; and
(b) At the discretion of the Court of Appeal from any other Judgment of that Court, whether final or interlocutory, if, in the opinion of that 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 His Majesty in Council for decision.

Civil right amounting to more than $5,000

[10] Although this Court’s judgment of 22 October 2003 was on a judicial review application and concerned with the process of the Maori Appellate Court in determining tribal ownership and boundaries for the purpose of a claim to the Waitangi Tribunal, Ngati Apa argued that a civil right "amounting to or of the value of $5000 or upwards" had been finally determined by the judgment so that there was a right to leave to appeal under the third limb of Rule 2(a). There is no dispute that the matter was the subject of a final decision in this Court’s judgment. The argument that a civil right is in issue turns on the significant area involved in the dispute over ownership and tribal boundaries, and the likelihood of a successful claim to an extent considerably exceeding $5000 in relation to that area if Ngati Apa were able to include the disputed area in its claim. Ngati Apa would be able to do that before the Waitangi Tribunal, we were told, if the Privy Council’s judgment went in its favour and a declaration was made concerning the defects of the Maori Appellate Court’s process. The Tribunal is presently hearing consolidated claims by iwi, including the present applicants in the northern South Island of New Zealand and a favourable finding would impact on its consideration of and report on the Ngati Apa claim.
[11] Just to state in those terms the link between success by Ngati Apa in the Privy Council, and the deriving of a benefit of the value of $5000 or more, indicates that for Ngati Apa a successful Privy Council appeal is only a step along the way. The outcome having such value to it is further contingent on a favourable recommendation on the boundaries question by the Waitangi Tribunal, coupled with subsequent success in obtaining entitlements to fishing assets, possibly under legislation shortly to be enacted, and in negotiation or other resolution of its wider claim. Ngati Apa’s anticipation of ultimate final success, to an extent beyond $5000, if it can get its appeal before the Privy Council and is successful, is clearly high, but in law it is no more than an expectation rather than a right. The outcome is not in the nature of a civil right envisaged by Rule 2(a) for leave to appeal to be granted to the applicants as of right.
[12] This point is not a new one. Indeed in CIR v Vela Fishing Limited [2002] 2 NZLR 635, a case cited by both Mr Crosby for Ngati Apa and Mr Doogan for the Crown, this Court distinguished that case, where judicial review went directly to the right of the Commissioner of Inland Revenue to reassess a taxpayer following waiver of a time bar, from those cases involving review of procedural matters where the outcome would be a right of rehearing rather than the consequential creation of rights. The latter category is more akin to the present case. The Court in Vela referred to Griffin & Sons Ltd v Anchor [1957] NZLR 502, involving an application for conditional leave to appeal in relation to the refusal of a writ of prohibition against an appellate tribunal hearing a matter, and said:

This Court held that the only civil right involved in the application for the writ of prohibition was the right of the appellant to have its case heard by an impartial tribunal. The value of this right could not be appraised or reduced to a money value. The transport licence itself was not in issue. If the writ had been granted, it would have been necessary to constitute a new appellate tribunal to hear the case, and it was entirely speculative as to what the result of that hearing would have been.

[13] Mr Crosby relied on Vela in which this Court held that a question of whether the Commissioner had a right to make the assessment of tax liability was undoubtedly a civil right. That decision does not, however, assist where the consequence of success in the Privy Council is only to provide, or to enhance, an opportunity to have, a more favourable decision from a tribunal than the one which it is sought to impugn. Accordingly this aspect of Ngati Apa’s application for leave to appeal must fail.

Question of great general or public importance

[14] Ngati Apa and Ngati Rarua each argue that the requirements of natural justice in a judicial process affecting Maori rights raises a question of "great general or public importance" such that this aspect of the threshold in Rule 2(b) for a second appeal, to the Privy Council from this Court’s decision, is met. The questions already set out are said to reach that threshold. Mr Castle (supported by Mr Crosby) emphasises in relation to both general and public importance the fact that fair hearing issues in the case arise both between iwi and between iwi and the Crown. The likely levels of compensation in terms of participation in commercial fisheries settlement assets allocations, and settlements with the Crown in respect of other historical grievances, are also relied on. It is clear that substantial sums would be involved if the applicants are able to establish that they have rights or interests within the Takiwa of Ngai Tahu as presently defined by statute. Emphasis is also put on the importance of the question whether the Treaty context enhances the requirements of natural justice.
[15] As indicated, however, this Court concluded that the proposed additional obligations suggested in the present case were within requirements of natural justice and fairness that are generally applicable. The question of whether requirements for compliance with natural justice under the Maori Appellate Court case stated procedure were extended because of the Treaty, accordingly did not arise for decision. Unless the Court’s conclusion concerning the proposed additional obligations were challenged by a cross-appeal (an unlikely prospect) it would not arise before the Privy Council. The principal question would rather be whether, on the facts of this case, the finding that the Maori Appellate Court had not breached the principles of natural justice in the course of its statutory case stated procedure was wrong. This is of course a very important matter for the applicants and other cross-claimants, but it is of narrow scope, very much turning on the particular circumstances of the Maori Appellate Court hearing which itself was a special jurisdiction.
[16] It is true that this judgment also highlighted the limited powers of the Maori Appellate Court to require the Crown to take steps in relation to other laws, holding that its powers were of limited scope in this respect. This aspect of the judgment is, however, unlikely to be of wider significance than the circumstances of the particular case as the s6A referral procedure has not been availed of since the present instance of referral which was in 1989. It is unlikely to be used again.
[17] The Treaty context of this case does not elevate the issues that the applicants wish to raise to ones of law and principle. The particular questions of compliance with natural justice should rather be categorised as ones of fact or degree in particular circumstances. This distinguishes the present case from Te Runanga o Muriwhenua and others v Te Runanganui o Te Upoko o Te Ika and others CA155/95, 26 June 1996 and Manukau Urban Maori Authority and others v Te Waka Hi Ika o Te Arawa and another CA208/98, 13 December 1999, in both of which this Court decided that questions of great general or public importance were being raised. Fact specific or narrowly defined issues of law are inherently unlikely to raise issues of sufficient importance to meet the threshold for granting leave for a Privy Council appeal: Perry Corporation v Ilthaca (Custodian) Ltd and others CA43/03, 8 December 2003.
[18] For these reasons we do not see that the issues that would be raised in a Privy Council appeal against the Court of Appeal judgment meet the threshold of importance specified in Rule 2(b).
[19] Nor do we consider, as Mr Crosby suggested, that the importance of the relationship between the Maori people and their land, give the proposed appeal such a special character as to warrant meeting of the threshold on the "or otherwise" category of Rule 2(b). Mr Finlayson, for Ngai Tahu, correctly pointed out that the critical issues concern the procedure of the Maori Appellate Court rather than the wider questions of rights to land. The case does not have the special character to warrant a second appeal under this part of the Rule.

Discretionary considerations

[20] Even if we had felt the level of importance met the threshold a second appeal we would have had reservations over whether the questions raised "ought to be submitted" to the Privy Council for decision. The Waitangi Tribunal processes provide a forum for addressing the grievances of Ngati Apa and Ngati Rarua over their boundaries which remains open, in terms of this Court’s judgment in 2000, although the nature of available remedies for such grievances as are established remains uncertain and whatever view were taken by the Privy Council remedies for them would ultimately be a matter of political decision and legislation. Overall, this is the kind of case where, if called on to do so by the applicants, it is better that the Privy Council should decide whether the issues are such as to make it appropriate to grant special leave: (cf Taiaroa v Minister of Justice [1995] 2 NZLR 1).
[21] For these reasons the application for conditional leave under Rule 2(b) also fails.

Conclusion

[22] In these circumstances it is unnecessary for us to consider the Crown’s argument that Ngati Rarua’s appeal was not brought in time. The two applications for conditional leave to appeal are dismissed. Costs are reserved. If any issue concerning costs arises counsel for Ngati Tahu and the Crown may submit memoranda within 14 days, to which the applicants must respond within a further seven days.

Solicitors:
Gascoigne Wicks, Blenheim, for First Applicant
Wain & Naysmith, Blenheim, for Second Applicant
Crown Law, Wellington for First Respondent
Bell Gully Buddle Weir, Wellington for Second Respondent

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[2]	The decision of the Maori Appellate Court determined a question which had been referred to it by the Waitangi Tribunal for that Court’s decision under s6A of the Treaty of Waitangi Act 1975. The question concerned the boundaries of tribal ownership in the upper South Island for the purpose of a claim made by Ngai Tahu which was before the Tribunal. Ngati Apa, Ngati Rarua and Ngati Toa were cross-claimants before the Maori Appellate Court, and in due course applicants for judicial review of its decision in the High Court. They were each appellants in the appeal determined by this Court’s judgment of 22 October 2003.
[3]	In a previous judgment in the current proceeding, dismissing a strike-out application by Ngai Tahu (reported at [2000] 2 NZLR 659), this Court had ruled that the cross-claimants could seek a declaration from the High Court that the Maori Appellate Court’s decision was invalid, on account of procedural improprieties and breaches of natural justice. Those grounds related to alleged disparities in funding between Ngai Tahu and the cross-claimants, and the alleged failure of the Maori Appellate Court to provide the cross-claimants with an opportunity to be heard.
[4]	In the judgment the subject of the present application, this Court accepted contentions of Ngati Apa and Ngati Rarua that the rules of that natural justice required that those affected by the proceeding before the Maori Appellate Court, including all the cross-claimants, were entitled to a fair hearing, including adequate notice of the proceeding and a reasonable opportunity to present their cases. The cross-claimants as appellants had sought to have the Court supplement those requirements by reference to the Treaty of Waitangi. The Court concluded, however, that the supplementary obligations and mandatory procedures suggested by the cross-claimants by reference to the Treaty did not add anything to the requirements of natural justice and fairness, saying at para [33]:

[10]	Although this Court’s judgment of 22 October 2003 was on a judicial review application and concerned with the process of the Maori Appellate Court in determining tribal ownership and boundaries for the purpose of a claim to the Waitangi Tribunal, Ngati Apa argued that a civil right "amounting to or of the value of $5000 or upwards" had been finally determined by the judgment so that there was a right to leave to appeal under the third limb of Rule 2(a). There is no dispute that the matter was the subject of a final decision in this Court’s judgment. The argument that a civil right is in issue turns on the significant area involved in the dispute over ownership and tribal boundaries, and the likelihood of a successful claim to an extent considerably exceeding $5000 in relation to that area if Ngati Apa were able to include the disputed area in its claim. Ngati Apa would be able to do that before the Waitangi Tribunal, we were told, if the Privy Council’s judgment went in its favour and a declaration was made concerning the defects of the Maori Appellate Court’s process. The Tribunal is presently hearing consolidated claims by iwi, including the present applicants in the northern South Island of New Zealand and a favourable finding would impact on its consideration of and report on the Ngati Apa claim.
[11]	Just to state in those terms the link between success by Ngati Apa in the Privy Council, and the deriving of a benefit of the value of $5000 or more, indicates that for Ngati Apa a successful Privy Council appeal is only a step along the way. The outcome having such value to it is further contingent on a favourable recommendation on the boundaries question by the Waitangi Tribunal, coupled with subsequent success in obtaining entitlements to fishing assets, possibly under legislation shortly to be enacted, and in negotiation or other resolution of its wider claim. Ngati Apa’s anticipation of ultimate final success, to an extent beyond $5000, if it can get its appeal before the Privy Council and is successful, is clearly high, but in law it is no more than an expectation rather than a right. The outcome is not in the nature of a civil right envisaged by Rule 2(a) for leave to appeal to be granted to the applicants as of right.
[12]	This point is not a new one. Indeed in CIR v Vela Fishing Limited [2002] 2 NZLR 635, a case cited by both Mr Crosby for Ngati Apa and Mr Doogan for the Crown, this Court distinguished that case, where judicial review went directly to the right of the Commissioner of Inland Revenue to reassess a taxpayer following waiver of a time bar, from those cases involving review of procedural matters where the outcome would be a right of rehearing rather than the consequential creation of rights. The latter category is more akin to the present case. The Court in Vela referred to Griffin & Sons Ltd v Anchor [1957] NZLR 502, involving an application for conditional leave to appeal in relation to the refusal of a writ of prohibition against an appellate tribunal hearing a matter, and said:

[14]	Ngati Apa and Ngati Rarua each argue that the requirements of natural justice in a judicial process affecting Maori rights raises a question of "great general or public importance" such that this aspect of the threshold in Rule 2(b) for a second appeal, to the Privy Council from this Court’s decision, is met. The questions already set out are said to reach that threshold. Mr Castle (supported by Mr Crosby) emphasises in relation to both general and public importance the fact that fair hearing issues in the case arise both between iwi and between iwi and the Crown. The likely levels of compensation in terms of participation in commercial fisheries settlement assets allocations, and settlements with the Crown in respect of other historical grievances, are also relied on. It is clear that substantial sums would be involved if the applicants are able to establish that they have rights or interests within the Takiwa of Ngai Tahu as presently defined by statute. Emphasis is also put on the importance of the question whether the Treaty context enhances the requirements of natural justice.
[15]	As indicated, however, this Court concluded that the proposed additional obligations suggested in the present case were within requirements of natural justice and fairness that are generally applicable. The question of whether requirements for compliance with natural justice under the Maori Appellate Court case stated procedure were extended because of the Treaty, accordingly did not arise for decision. Unless the Court’s conclusion concerning the proposed additional obligations were challenged by a cross-appeal (an unlikely prospect) it would not arise before the Privy Council. The principal question would rather be whether, on the facts of this case, the finding that the Maori Appellate Court had not breached the principles of natural justice in the course of its statutory case stated procedure was wrong. This is of course a very important matter for the applicants and other cross-claimants, but it is of narrow scope, very much turning on the particular circumstances of the Maori Appellate Court hearing which itself was a special jurisdiction.
[16]	It is true that this judgment also highlighted the limited powers of the Maori Appellate Court to require the Crown to take steps in relation to other laws, holding that its powers were of limited scope in this respect. This aspect of the judgment is, however, unlikely to be of wider significance than the circumstances of the particular case as the s6A referral procedure has not been availed of since the present instance of referral which was in 1989. It is unlikely to be used again.
[17]	The Treaty context of this case does not elevate the issues that the applicants wish to raise to ones of law and principle. The particular questions of compliance with natural justice should rather be categorised as ones of fact or degree in particular circumstances. This distinguishes the present case from Te Runanga o Muriwhenua and others v Te Runanganui o Te Upoko o Te Ika and others CA155/95, 26 June 1996 and Manukau Urban Maori Authority and others v Te Waka Hi Ika o Te Arawa and another CA208/98, 13 December 1999, in both of which this Court decided that questions of great general or public importance were being raised. Fact specific or narrowly defined issues of law are inherently unlikely to raise issues of sufficient importance to meet the threshold for granting leave for a Privy Council appeal: Perry Corporation v Ilthaca (Custodian) Ltd and others CA43/03, 8 December 2003.
[18]	For these reasons we do not see that the issues that would be raised in a Privy Council appeal against the Court of Appeal judgment meet the threshold of importance specified in Rule 2(b).
[19]	Nor do we consider, as Mr Crosby suggested, that the importance of the relationship between the Maori people and their land, give the proposed appeal such a special character as to warrant meeting of the threshold on the "or otherwise" category of Rule 2(b). Mr Finlayson, for Ngai Tahu, correctly pointed out that the critical issues concern the procedure of the Maori Appellate Court rather than the wider questions of rights to land. The case does not have the special character to warrant a second appeal under this part of the Rule.