Griggs v Attorney-General [2021] NZCA 573 (29 October 2021)

Last Updated: 2 November 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA663/2021 [2021] NZCA 573

	BETWEEN	RYSHELL GRIGGS AND MARK CHAMBERLAIN ON BEHALF OF NGĀI TŪMAPŪHIA-Ā-RANGI Appellants
	AND	THE ATTORNEY-GENERAL First Respondent
		THE MINISTER FOR TREATY OF WAITANGI NEGOTIATIONS Second Respondent
		NGĀTI KAHUNGUNU KI WAIRARAPA TĀMAKI NUI-Ā-RUA SETTLEMENT TRUST Third Respondent

Hearing: (by teleconference)	29 October 2021
Counsel:	F E Geiringer for Appellants V L Hardy, C D Tyson and H P Graham for First and Second Respondents M G Colson QC and E J Watt for Third Respondent M K Mahuika for Wairarapa Moana Ki Pouakani Inc (leave to intervene)
Judgment:	29 October 2021 at 4.30 pm

JUDGMENT OF COOPER J

1. The application is declined.
2. If there is any issue as to costs memoranda may be filed by the respondents within five working days of the date of this judgment and by the appellants within five working days after that.

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REASONS

• [1] The appellants applied for interim relief this morning under r 12(3)(b) of the Court of Appeal (Civil) Rules 2005 (the Rules) having appealed from a judgment delivered yesterday evening by Cooke J in the High Court.^[1]
• [2] The specific grounds of the appeal are that:

1.2 On 22 October 2021, the Crown informed the appellants that it did not intend to wait for the hearing of the Supreme Court before settling a Treaty claim that will extinguish the appellants’ resumption application.

1.3 On 26 October 2021 the third respondent told the appellant[s] that the signing of the deed of settlement is to take place on 29 October 2021 (and the appellants were later informed that this is to take place at 11:30 am).

1.4 On 27 October 2021, the appellants filed a new claim in the High Court alleging that the signing of the deed is a breach of [T]reaty principles and of the 1989 Crown Forest Agreement by the Crown and a breach of trust by the third respondent, and made an application for interim relief.

1.5 On the evening of 28 October 2021, Cooke J in the High Court declined the application and granted leave to appeal with reasons to be provided later.

1.6 If the appellants are not granted interim relief their resumption application, Supreme Court appeal, urgency application, and High Court claim will be rendered moot.

• [3] On this basis the appeal seeks orders that the third respondent be enjoined from signing a Deed of Settlement with the Crown purporting to resolve their claims before the Waitangi Tribunal all of which are said to involve the taonga of Ngāi Tūmapūhia-Ā-Rangi.
• [4] The appeal also seeks a declaration that were the Crown to sign a Deed of Settlement purporting to include Wai 429 in advance of a final determination by the Waitangi Tribunal of the Wai 429 claim (as well as any result, review and appeals before the Senior Courts) that will breach the Crown’s commitments under Te Tiriti o Waitangi and the Crown Forest Agreement.
• [5] The only appeal before this Court is an appeal with the leave of the High Court against the refusal of interim relief. The reasons interim relief was refused are not yet available.
• [6] I was not prepared on the basis of the material before the Court to make an order granting interim relief under r 12 of the Rules without hearing from the parties. The only documentary material before the Court in addition to the notice of appeal is the statement of claim filed in the High Court, an affidavit filed in the High Court by Mr Mark Chamberlain, one of the appellants, and a memorandum of counsel for the appellants. The memorandum sates that if the application for interim relief could not be heard before execution of the Deed of Settlement the appeal, the substantive claim, an extant resumption application before the Waitangi Tribunal and an appeal to the Supreme Court (for which leave has already been granted on a “leap-frog” basis) would be rendered moot. Prior to hearing from counsel, I had no other information upon which to consider the application for interim relief.
• [7] In the event it was not possible for a hearing to be arranged with counsel until approximately 11.50 am this morning. By that stage the formal signing ceremony in respect of the Deed of Settlement was already underway at Te Papa.
• [8] In the course of the hearing (conducted by telephone this morning) I was advised by counsel for the Crown, Ms Hardy, that the signing ceremony had in fact been completed. In the circumstances the application had become moot and relief could not be granted in the terms sought.
• [9] The application is declined on that basis.
• [10] My preliminary view is that this is not an appropriate case for an award of costs. If there is any issue as to costs memoranda may be filed by the respondents within five working days of the date of this judgment and by the appellants within five working days after that.

Solicitors:
Dixon & Co Lawyers, Auckland for Appellants
Crown Law Office, Wellington for First and Second Respondents
Fitzherbert Rowe, Palmerston North for Third Respondent

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^[1] Griggs v Attorney-General HC Wellington CIV-2021-485-587, 29 October 2021.