Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZCA 555 (16 November 2022)

Last Updated: 21 November 2022

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

CA242/2022 [2022] NZCA 555

	BETWEEN	NGĀTI WHĀTUA ŌRĀKEI TRUST Appellant
	AND	ATTORNEY-GENERAL First Respondent
	AND	MARUTŪĀHU RŌPŪ LIMITED PARTNERSHIP Second Respondent

Court:	Miller and Clifford JJ
Counsel:	J E Hodder KC and JWJ Graham for Appellant D A Ward and Y Moinfar-Yong for First Respondent P F Majurey for Second Respondent R M Harrison for Applicant to Intervene
Judgment: (On the papers)	16 November 2022 at 11.00 am

JUDGMENT OF THE COURT

1. The application for an extension of time is granted. The case on appeal must be filed, and a fixture sought by 30 November 2022.
2. The application for leave to intervene by Ngātiwai Trust Board is declined.

100. There is no order as to costs.

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REASONS OF THE COURT

(Given by Miller J)

• [1] The appellants have brought a timely appeal against the High Court decision of Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843.
• [2] Also within time, they sought an extension of time to file the case on appeal and seek a fixture, on two grounds: the High Court is still considering declaratory relief, and Palmer J invited the parties to apply for a tikanga-based resolution process, which the parties are currently discussing.^[1]
• [3] The extension sought was until 25 October 2022. Time has overtaken it. The High Court is to issue a second judgment, which is pending, and the appellants now ask that they be given 30 working days after delivery of that judgment to file the case on appeal and seek a fixture.
• [4] The extension is opposed by the second respondent and Te Ākitai Waiōhua Settlement Trust and Ngāi Tai ki Tāmaki Trust as interested parties saying it is unnecessary and there is a risk of indefinite delay. The Attorney-General advised it would abide the decision of the Court. Ngāti Kuri and Ngāi Te Rangi as intervenors support the application.
• [5] We encourage tikanga-based resolution. But we agree that indefinite delay must be avoided. If a fixture were sought now the appeal would not be heard until later next year. There should be ample time in which to refine the issues, or engage in such a process, before the hearing. We extend time to file the case on appeal and apply for a hearing date until 30 November 2022.
• [6] Also before us is an application by Ngātiwai Trust Board (Ngātiwai) to intervene on a limited basis. They say that Ngātiwai and in particular Ngāti Rehua‑Ngātiwai ki Aotea hold exclusive mana whenua status over Aotea (Great Barrier Island) and its surrounds. They have an interest in any intended redress to other iwi on Aotea and surrounding islands and coasts. They acknowledge this land is not the subject of the appeal. Ngātiawa’s concern is whether mana whenua in a heartland area may be held by a number of iwi according to their tribal histories and traditions and in Crown conduct where there are overlapping claims, as these issues influence the Crown to offer redress on Aotea to other iwi in due course.
• [7] The Attorney-General opposes the application to intervene, as does the second respondent and Te Ākitai Waiōhua Settlement Trust and Ngāi Tai ki Tāmaki Trust. They point out that Ngātiwai did not participate in the High Court proceeding and the High Court heard no evidence about mana whenua at Aotea. This Court would be doing so as a court of first instance. The question whether this Court must respect Ngātiwai’s alleged mana whenua status at Aotea is not in issue on this appeal, which deals with land in central Auckland. Ngātiwai’s objections relate to a separate proposed settlement involving Hauraki iwi.
• [8] This Court’s approach to intervention was summarised in Ngāti Whātua Ōrākei Trust v Attorney-General:^[2]

[11] The relevant principles when considering granting leave to intervene under r 48 include:

(a) The power is broad in nature but should be exercised with restraint to avoid the risk of expanding issues, elongation of hearings and increasing the costs of litigation.

(b) In an appeal involving issues of general and wide importance the court may grant leave when satisfied that it would be assisted by submissions from the intervener.

(c) The fact that the case raises issues of principles transcending the particular facts is not in itself sufficient to extend rights of hearing beyond the parties.

(d) The Court will take into account the relevant expertise or the unique position of an intended intervener as well as the impact of the intervention on appeal.

• [9] It is not usual to permit intervention by a party which did not participate below. In this case, intervention risks involving this Court in issues which were not decided below and which are not in issue in this appeal. The evidence filed by Ngātiwai in support of the application suggests the Court might well find itself confronting questions of fact about mana whenua status, and possibly further applications to intervene from others interested in Aotea. The impact on the appeal could be considerable. This is sufficient reason in itself to decline the application.
• [10] So far as issues of wider principle are concerned, we accept that Ngātiwai has an interest but that is not enough to justify intervention. The position of iwi yet to finalise Treaty settlement with the Crown and the implications for this Court’s determinations beyond central Tāmaki Makaurau is adequately represented by the appellant and an existing intervener, Ngāi Te Rangi. There is no need for further intervention to assist the Court.
• [11] The application for leave to intervene is declined, with no order as to costs.

Solicitors:
Chapman Tripp, Wellington for Appellant
Crown Law Office, Wellington for First Respondent
Atkins Holm Majurey Ltd, Auckland for Second Respondent Kāhui Legal, Rotorua for Te Ākitai

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^[1] See Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 at [649].

^[2] Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 183 at [11] (footnotes omitted).