|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2009-485-976
UNDER Declaratory Judgments Act 1908
AND UNDER Central North Island
Forests Land
Collective Settlement Act 2008
IN THE MATTER OF Applications
for declarations as to the
actions of the defendants pursuant to a deed
of trust and the Central North Island
Forests Deed Settlement
BETWEEN ROBERT POUWHARE
TAMAROA RAYMOND NIKORA
HIRAINA HONA
LENNY TE KAWA AS
REPRESENTATIVES OF TE
UMUTAOROA
Plaintiffs
AND TMATI KRUGER
TMATI CAIRNS
TE TOKAWHAKAEA TMARA
CLIFFORD KUHATA
KARAURIA TIHI
RONGONUI TAHI
LANCE WINITANA
AS TRUSTEES OF
TUHOE ESTABLISHMENT TRUST
First Defendants
AND TE KOTAHI A TUHOE, A
CHARITABLE TRUST
Second Defendant
AND ATTORNEY-GENERAL AND
MINISTER OF TREATY OF WAITANGI
NEGOTIATIONS
Third Defendant
Hearing: 9-10 June 2009
Counsel: H M Aikman QC, A Sykes and K Ertel for plaintiffs
D J White QC and K Feint for first and second defendants
V L Hardy and D N Soper for third defendants
POUWHARE AND ORS V KRUGER AND ORS HC WN CIV-2009-485-976 12 June 2009
Judgment: 12 June 2009 at 4.15pm
I direct the Registrar
to endorse this judgment with a delivery time of 4.15pm on the
12th day of June 2009.
RESERVED JUDGMENT OF MACKENZIE
J
[1] Ngai Thoe is a member of the Central North Island Forest Iwi Collective
(the Collective). As such, it is a party to the
Central North Island Forests Land
Collective Settlement. That settlement was reached by a Deed of Settlement dated
25 June 2008 (the
Deed), subsequently given legislative effect by the Central North
Forests Land Collective Settlement Act 2008 (the Act). There is
a brief description
of the settlement in the preamble to the Act. Steps to implement the settlement,
under the Deed and the Act,
are in train. A significant next step will be the transfer
by the Crown to the Collective, and by the Collective to the member iwi,
of the
rentals in respect of the CNI Forest Land which have accumulated since 1989. That
step is to occur on 1 July 2009.
[2]
Under the settlement arrangements, each iwi is to appoint a governance entity
to act on its behalf in relation to the settlement.
That governance entity will receive,
and hold on behalf of the iwi, the share of accumulated rentals and ongoing rental
attributable
to that iwi, and will represent that iwi in the Collective on an ongoing
basis. Until now, the entity which has been mandated by
Ngai Thoe to conduct
negotiations on its behalf and to enter into the settlement arrangements, has been Te
Kotahi a Tuhoe (TKaT),
a charitable trust of which the second defendants are the
trustees. TKaT is not considered to be a suitable governance entity. The
terms of its
trusts are not suitable for the administration of the substantial sums to which Ngai
Thoe is entitled under the settlement. Steps have been taken to form another entity,
the Tuhoe
Establishment Trust (TET), of which the first defendants are the trustees.
That has been established by a Trust Deed dated 23 May
2009.
[3] The plaintiffs represent a number of individual and hapu of Ngai Thoe who
have become disenchanted with the way in
which affairs have been conducted by
TkaT. They have come together under Te Umutaoroa. They have concerns as to the
processes which
have been adopted to obtain a mandate from Ngai Thoe to the
establishment of TET as the post settlement governance entity for Ngai
Thoe. They
commenced these proceedings on 21 May 2009. They have been accorded urgency
in view of the imminence and importance of
the next steps under the settlement.
[4] At the same time, application was made to the Waitangi Tribunal by a
number of parties
to claims before the Tribunal, including the plaintiffs, seeking
urgency for the hearing of the claim. Those applications were heard
on 29 May
2009, and a decision was delivered on 4 June. So far as the applications related to
matters in issue in these proceedings,
the Tribunal said:
31. A review of the evidence, the statements of claim from the plaintiffs
in the High
Court and the claims for urgency before the Tribunal
reveals that both actions are directed to the same essential
challenges
to mandate, representation and process. The issues to be canvassed
in the Te Umutaoroa case
in the High Court rely on evidence
provided on behalf of Te Umutaoroa and Ngti Haka Patuheuheu in
that
forum. The issues before us also rely on the same evidence.
32. In our view, the High Court proceeding to be heard next
week
represents a reasonable alternative remedy for the applicants, and
they are pursuing it.
[5]
The proceedings are brought under the Declaratory Judgments Act 1908, s 3
of which provides:
Where any person has done
or desires to do any act the validity, legality, or
effect of which depends on the construction or validity of any statute,
or any
regulation made by the Governor-General in Council under statutory
authority, or any bylaw made by a local authority,
or any deed, will, or
document of title, or any agreement made or evidenced by writing, or any
memorandum or articles
of association of any company or body corporate,
or any instrument prescribing the powers of any company or body corporate;
or
Where any person claims to have acquired any right under any such statute,
regulation, bylaw, deed, will,
document of title, agreement, memorandum,
articles, or instrument, or to be in any other manner interested in the
construction
or validity thereof,--
such person may apply to the [High Court] by originating summons ... for a
declaratory order
determining any question as to the construction or validity
of such statute, regulation, bylaw, deed, will, document of title,
agreement,
memorandum, articles, or instrument, or of any part thereof.
[6] Under the Deed, each member of the Collective
confirms to the Crown, and
to the other members of the Collective, that the member has appointed, or will prior
to the settlement
date (1 July 2009) appoint, a governance entity to act on its behalf
in relation to the settlement. Each member confirms that the
governance entity was,
or will be, properly appointed and has, or will have, the authority to act on behalf of
the member. The essence
of the plaintiffs' case is that TET has not been properly
appointed and that the processes used in obtaining a mandate for TET to
act as the
governance entity have not been effective to obtain for it the authority to act on
behalf of Ngai Thoe. It is alleged
that the processes adopted in the formation of the
TET are in breach of the Deed, and that a transfer of the Ngai Thoe share of
accumulated rentals to TET would be a breach
of the Act.
[7] A number of alleged defects in the mandating process are relied upon, and
were elaborated by Ms Aikman QC for
the plaintiffs in the course of submissions.
Briefly stated, it is alleged that the mandate process:
(a) Gave insufficient
notice of meetings;
(b) Gave insufficient information;
(c) Was not according to tikanga;
(d)
Adopted irregular voting procedures;
(e) There was no proper consultation or authorisation
(f) There
was no authorisation of the trustees;
(g) Lack of transparency;
(h) Insufficient support for the deed;
(i) Mandate only given to TKaT (1).
[8] The declarations sought are as follows:
(a) A declaration
that the first defendant has not obtained a mandate in
accordance with the requirements of the CNI Deed of Settlement;
(b) A declaration that the steps taken by the second defendant to obtain a
mandate have been inadequate;
(c) A declaration that the Crown not recognise the mandate of the first
defendant;
(d)
A declaration that the defendants take no further action to implement
the trust deed until a proper process of
consultation is undertaken;
(e) A declaration that no Treaty settlement assets be transferred to or
acquired by the first defendant until and unless there is a properly
mandated post settlement governance entity
for Tuhoe.
[9] There are a number of requirements as to the use of s 3 of the Declaratory
Judgments Act, both expressed in
the words of the section itself, and derived from
the authorities on the application of the section, to which counsel for the defendants
drew attention. First, the plaintiffs must claim to have acquired rights under, or to be
in some other manner interested in the construction
or validity of, the Deed or the
Act. Second, the declaration sought must be one which determines a question as to
the construction
or validity of the Deed or the Act. Third, the Court has no power to
prevent the operation of the Act, and all the steps required
by the Act will occur by
operation of law: New Zealand Mäori Council v AG [1996] 3 NZLR 140 (CA) at
166-8. Fourth, the declaratory judgment jurisdiction is limited to determining
questions of law and not questions of fact
or mixed questions of fact and law: NZ
Insurance Co Ltd v Prudential Assurance Ltd [1976] 1 NZLR 84 (CA) at 85.
[10] As to the first of those requirements, this is not a case where it would be
appropriate to take a restrictive
view of the standing of the plaintiffs to bring this
proceeding. I consider that they are within the ambit of the section. That means
that
the first point for consideration is the second requirement, namely whether the
declarations sought involve the determination
of a question as to the construction or
validity of the Deed or the Act.
[11] The background to the Deed is set out comprehensively
in the Deed itself. It
is unnecessary to repeat any of that background. At the conclusion of that statement
of background the follows
appears:
This Deed of Settlement has been:
· Negotiated between the Crown and the Collective; and
·
Duly authorised by each member of the Collective, following the
completion of the Authorisation Process (as described
in clauses 3.1 and
3.2).
The Authorised Signatories are authorised by their respective Member of the
Collective to sign this Deed of Settlement on behalf of the Member of the
Collective.
Accordingly, each Member of
the Collective, the Collective and the Crown
wish, in a spirit of co-operation and compromise, to enter, in good faith, into
this Deed of Settlement providing for the settlement of the historical CNI
Forests Land Claims (as defined in clauses
1.8 and 1.9).
[12] Clause 3 of the Deed deals with authorisation of the settlement and the
governance entities. A copy of it is
annexed as an appendix to this judgment.
[13] The essence of the plaintiffs' case is that the issue raised in this proceeding
is
justiciable because it involves the interpretation of the Deed. The crux of the
plaintiffs' submission on this aspect is set out
in the submissions of counsel in the
following terms:
26. In signing the DoS, each member of the Collective confirmed
that it
was authorised and had a sufficient level of support and all the
necessary authorisations
to sign and was duly authorised to do so.
27. Clause 3.1.1 provides that each member of the collective "confirms
that it has appointed, or will prior to the Settlement date appoint, a
Governance Entity to act on
its behalf" in relation to the settlement.
28. Under cl 3.1.2 the member confirms that the governance entity "was
or will be properly appointed and has, or will have the authority to
act on behalf of the Member
of the Collective".
29. The governance entity is to be a shareholder of CNI Holdings and
beneficiary
of the CNI Trust (cl 3.1.3).
30. Clause 3.2.1 sets out the process by which the member was
authorised
to sign the DoS, including the series of hui and other
meetings with its hapu, iwi and taura here ropu to discuss
the
Agreement in Principle and proposed settlement, following its
tikanga to obtain a sufficient level
of support and all the
authorisations it considers necessary.
31. Each member therefore confirms in cl
3.2.3 that it has followed its
tikanga and that the Crown and other Collective members can safely
rely
on those in entering the DoS.
32. It is therefore apparent that while cl 3.2 relates to events up to the
signing of the DoS, the commitments under cl 3.1 post-date the DoS
in the case of any member which did not have
an agreed Post-
Governance Settlement entity at the time. Tuhoe was one such
member.
33.
Therefore, while this action does not challenge TkaT's status under
cl 3.2, it does challenge the appointment of
TET as the governance
entity to receive that settlement, that is as the "representative entity"
for Tuhoe and as its shareholder in CNI Holdings.
[14] These submissions
raise for consideration the interpretation of cl 3 of the
Deed, and a consideration of its requirements. It is an essential proposition
of those
submissions that cl 3 of the Deed contains not only a confirmation given by Ngai
Thoe as a member of the Collective that
its governance entity would be properly
appointed and authorised, but also is to be regarded as prescribing, either expressly
or
by implication, the processes which must be followed to achieve a proper
appointment and authorisation. The plaintiffs rely upon
cl 3.2. They refer to the
process set out in cl 3.2.1, which is the process by which each member of the
Collective confirmed that
it undertook in seeking approval to the Deed. The
plaintiffs' submissions in paragraphs 32 and 33 rest substantially
on the proposition
that the cl 3.2 process should also be followed in obtaining appointment and
authorisation for the governance
entity.
[15] The essential question here is whether the fact that the processes described in
paragraph 3.2.1 of the Deed have
been followed up to the stage of execution of the
Deed carries with it a necessary implication that those processes will also be
followed for the subsequent stage of appointment of a governance entity. That
question must be considered in the light of the Deed
as a whole.
[16] Speaking generally, the internal procedures by which an iwi decides on the
appointment of persons or groups to
act on behalf of all members of the iwi are a
matter for determination by iwi. The achievement of such a mandate is a necessary
precondition
to Treaty settlement negotiations between the iwi concerned and the
Crown. It is also a necessary corollary of the Crown's obligations
under the Treaty,
and its governmental responsibilities, that the Crown ensure that individual members
and entities of the iwi have
been properly represented and consulted in the
mandating process.
[17] The Crown has developed a well established set of principles
and protocols
which it requires to be undertaken by Treaty claimant groups to ensure that the
representatives have a proper mandate
to act on behalf of that group. The process
which was followed for the approval of the CNI Forests settlement was the process
which
the Crown, as a negotiating party, ordinarily requires to be undertaken for that
purpose. Clause 3.2.1 reflects the fact that this
process has been followed here.
[18] The rather delicate position in which the Crown is placed in imposing on
claimants procedural
and process requirements as to how decisions are taken by a
claimant group was addressed in the Waitangi Tribunal's decision on the
urgency
applications to which I have referred, in these terms:
54. Counsel for Te Umutaoroa drew to our attention the
observations of
Judge Wainwright, Acting Chairperson of the Tribunal, as she now
is, in her memorandum-directions
of 21 February 2002 regarding the
Wai 889 claimants' application for urgency (Ngti Awa Settlement
Cross-Claims
Report) as follows:
It seems to me that the Crown, in attempting to secure a
settlement,
is sometimes caught between what one might
colloquially call a rock and a hard place. On the one hand
the Crown needs to be in a position to confirm, in the
interest of good government and honouring
the Treaty
obligation to act in good faith, that claimants have been
procedurally fair
in managing their own settlement
processes...Balanced against this imperative is the need on
the other hand for the Crown to avoid offending the claimant
community, often in the person of the
settlement negotiation
body, by being overly patriarchal, and by "inferring" being
seen as impinging
on the claimant's tribal autonomy. This is
indeed a difficult and narrow path to tread.
55. The
"difficult and narrow path" for the Crown to tread is as
transparent in these applications by Te Umutaoroa and Ngti
Haka
Patuheuheu as was observed to be the case in the Ngti Awa-Ngi
Thoe cross claims. We are satisfied
that the intervention which Te
Umutaoroa and Ngti Haka Patuheuheu submit is required of the
Crown,
were it to be actioned, can correctly be described as
impinging on the claimant's tribal autonomy. It is a fine
line. ...
[19] That "difficult and narrow path" suggests that caution is required before
drawing the conclusion that the parties
to the Deed are to be taken to have intended
that the same processes as had been followed up to settlement, as described in
cl 3.2.1,
should also be required to be followed in obtaining subsequent authority for
a post settlement governance entity under cl 3.1.2.
[20] The broad structure of the settlement is that it is an agreement between the
Crown and the members of the Collective,
acting as a Collective. The redress which
is to be given by the Crown under the settlement is provided by (inter alia) payment
of
the accumulated rentals from the CNI Forests Land to the holding company
established by the Collective. That company is required
to distribute those
accumulated rentals to the governance entity for each member of the Collective in
the specified proportions.
The function of each governance entity is to manage the
assets in the interests of the members of that particular iwi. Matters have
moved
beyond the point where negotiating with the Crown is the principal function of the
entity.
[21] The role of the Crown
in relation to the supervision or approval of the
processes undertaken by an iwi member of the Collective to develop a post-
settlement
governance entity appropriate for the iwi is different from its role at the
stage where what is in issue is the authority of the
mandated representative to act on
behalf of iwi in negotiations with the Crown. I consider that the differences between
those two
situations are of such significance that the Deed is not properly to be
construed as incorporating the processes described in cl
3.2.1 into cl 3.1.2.
[22] Clause 3.2.2(c) might support the proposition that the cl 3.2.1 processes are
to be followed in
the subsequent appointment of a governance entity under cl 3.1.2.
I do not think that this is the intended effect of cl 3.2.2(c).
As cl 3.1.2 makes clear,
the post settlement governance entity may be an entity in existence at the time of the
Deed, or a new entity
to be formed later. Clause 3.2.2(c) is on its wording capable of
application only to a pre-existing governance entity. I do not
consider that it is
properly to be read as a requirement that the process of appointment of a new post
settlement governance entity
will be effected by exactly the same process as has
been followed for obtaining approval to the settlement itself.
[23] I consider
that, since a requirement of cl 3.1.2 is that the governance entity
must be properly appointed by, and have the authority to act
on behalf of, the
particular iwi member of the Collective, the processes which must be followed are
the decision making processes
of the relevant iwi, in this case Ngai Thoe. The
critical requirement is similar to that expressed in cl 3.2.3(a) of the Deed, under
which each member of the Collective confirms that it is satisfied that it has followed
its tikanga to obtain a sufficient level of
support and authorisations.
[24] Accordingly, so far as the question of the interpretation of the Deed is
concerned, I consider
that the requirement in cl 3.1 for confirmation by Ngai Thoe
that its governance entity, TET, has been properly authorised and has the authority to
act on behalf of Ngai Thoe
will be met if Ngai Thoe has followed its tikanga to
obtain a sufficient level of support and authority to that appointment.
[25]
That conclusion means that, to consider whether either of the declarations (a)
or (b) sought, as set out in paragraph [8], are
appropriate, it would be necessary to
examine not only the terms of the Deed and the Act, but also the requirements of
Ngai Thoe
tikanga. That goes beyond the scope of the Declaratory Judgments Act.
It raises factual questions. On the evidence, there are
contested factual issues
between the plaintiffs on the one hand and the first and second defendants on the
other as to what processes
are required by Ngai Thoe tikanga and whether those
processes have been followed.
[26] The requirements of Ngai Thoe tikanga
are, at least in the first instance, a
matter for resolution within Ngai Thoe. I do not exclude the possibility that this
Court might
have a role, in appropriate proceedings, in determining the extent and
nature of Ngai Thoe tikanga. It is unnecessary for me to examine
that question
because I am satisfied that, if there may be a point at which the Court has such a role,
that point has not been reached
here. This Court should be reluctant to become
involved in resolving questions as to the requirement of Ngai Thoe tikanga on
which
there is a dispute within Ngai Thoe. The proper forum for the resolution of
such questions, at least in the first instance, is within
the internal processes of Ngai
Thoe. Differences among members of Ngai Thoe as to the requirements of its
tikanga must be discussed
and if possible resolved within Ngai Thoe.
[27] I am further satisfied that if a question as to whether Ngai Thoe tikanga has
been followed may properly come before the Court, a proceeding under the
Declaratory Judgments Act is not a proper proceeding for
the resolution of such a
question. The nature of Ngai Thoe tikanga necessarily involves factual questions.
Here, there are also disputes
in the evidence which would have to be resolved before
a decision could be made as to what processes were in fact followed. This
case is
not one where it would be appropriate to depart from the well-established principle
that the Court should not, in a declaratory
judgment proceeding, address questions of
fact, or mixed questions of fact and law.
[28] For these reasons I am satisfied that
it is not appropriate, in these
proceedings, for this Court to consider either what are the requirements of Ngai
Thoe tikanga, or
whether the processes which have been adopted for the
appointment and authorisation of TET have been in accordance with that tikanga.
Because I have reached that conclusion, it is not appropriate for me to address the
evidence on these questions. I do not wish to
make any comment which might be
interpreted as expressing any view on the underlying issues between the parties.
[29] That means
that I do not consider either of the declarations (a) or (b), as set
out in paragraph [8] are appropriate. Each of the other
declarations sought is
essentially dependent on a decision in favour of the plaintiffs on the first two
declarations sought. As I
have held that neither of those declarations is appropriate,
it necessarily follows that none of the declarations (c) (d) or (e),
is appropriate.
[30] That conclusion makes in unnecessary for me to consider whether the relief
sought goes beyond the type of
relief which may properly be granted in proceedings
under the Declaratory Judgments Act. It also renders it unnecessary for me to
consider the submissions made by all defendants that, in any event, relief should be
refused in the exercise of the Court's discretion.
In the circumstances, it is
preferable that I do not address those issues.
[31] I do consider however, that it
is appropriate to venture some comments. This
settlement is of enormous significance and importance for Ngai Thoe, and every
present and future member of Ngai Thoe. From 1 July
2009, TET will have vested
in it, as trustee for all present and future Thoe iwi members, a sum of $66 million in
accumulated rentals.
It will receive ongoing rentals. It is of crucial importance for
the future of Ngai Thoe that the structures by which those and other
assets are held
and administered have the general support of the members of Ngai Thoe.
[32] It appears from the evidence before
me that there are potential mechanisms
available for the resolution, within Ngai Thoe, of the underlying issues. Counsel
for the
defendants point to the dispute resolution mechanisms provided for in the
TET Trust Deed. The Crown has also offered to assist in
facilitating mediation
between the parties. Proposals for mediation were initiated following the issue of
these proceedings. The
time frame available before the hearing was too short to
enable meaningful steps to be taken. I respectfully venture the view that
it is
desirable that the available opportunities to discuss and resolve differences be taken.
[33] For the reasons given, I
decline to make any of the declarations sought in the
statement of claim.
[34] Costs are reserved. Memoranda may be submitted.
"A D MacKenzie J"
Solicitors: Rangitauira & Co
Rotorua for plaintiffs
Gibson Sheat, Wellington for first and second defendants
Crown Law Office,
Wellington for third defendant
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2009/703.html