Ngāti Whātua Orākei Trust v Attorney-General [2016] NZHC 347 (4 March 2016)

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BETWEEN	NGĀTI WHĀTUA ŌRĀKEI TRUST Plaintiff
AND	ATTORNEY-GENERAL First Defendant NGĀTI PĀOA IWI TRUST Second Defendant MARUTŪĀHU RŌPŪ LIMITED PARTNERSHIP _Intervener

Hearing:	26 February 2016
Appearances:	J E Hodder QC and J W J Graham for Plaintiff D A Ward and G L Melvin for First Defendant D J Goddard QC and L Theron for Second Defendant P F Majurey for Intervener
_Judgment:	_{4 March 2016}

[1] There were two matters before the Court – first an application by the second defendant, Ngāti Pāoa Iwi Trust (“Ngāti Pāoa”), for an order that the Court determine two issues, said to be discrete, as preliminary questions, and secondly a memorandum by the intervener – Marutūāhu Rōpū Limited Partnership (“Marutūāhu”) – in relation to the role it can take in the substantive proceedings.

[2] The application by Ngāti Pāoa was opposed by the plaintiff – Ngāti Whātua Ōrākei Trust (“Ngāti Whātua Ōrākei”). It was supported by the first defendant, the Attorney-General, and by Marutūāhu,

[3] I heard Ngāti Pāoa’s application first. By consent, I heard from Mr Majurey on behalf of Marutūāhu in relation to the application, initially de bene esse, pending a decision on Marutūāhu’s role.

[4] At the hearing it became clear that Marutūāhu is potentially affected by the proceedings. I canvassed with counsel whether it might be prudent to join it as a third defendant. Mr Majurey confirmed that that course would be sensible from his client’s perspective. Mr Hodder QC, on behalf of Ngāti Whātua Ōrākei, wished to take instructions. In the event Ngāti Whātua Ōrākei has advised by memorandum that it does not oppose the joinder of Marutūāhu as a defendant. Nor does the Attorney-General or Ngāti Pāoa. I return to this matter below.

[5] Ngāti Whātua Ōrākei has filed an application for judicial review in respect of a preliminary decision made by the Minister for Treaty of Waitangi Negotiations to transfer land at 71 Grafton Road and 136 Dominion Road, Auckland, to Ngāti Pāoa, as part of an iwi specific Treaty settlement.

[6] Ngāti Whātua Ōrākei has filed a relatively succinct, but potentially wide

(a) When the Treaty of Waitangi was signed on 6 February 1840, it was an established hapū located in what is now the central Auckland region;

3,000 acres of land upon which large parts of central Auckland have since been developed;

(f) In 2006, it settled its historical claims in relation to the Crown’s pre-1992 breaches of the Treaty on terms which were recognised in a deed of settlement. Inter alia the deed of settlement conferred on it a right of first refusal in respect of Crown and other land in central Auckland, including the land in Grafton Road and in Dominion Road;

(g) The 2006 deed of settlement was subsequently given legislative expression in the Ngāti Whātua Ōrākei Claims Settlement Act 2012 (the “Settlement Act”);

(h) Subsequently it became part of a collective of 13 iwi and hapū which entered into a further settlement with the Crown on terms which are recorded in the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (the “Collective Redress Act”). This Act provides that certain Crown land in the broader Auckland region is subject to a right of first refusal in favour of the collective;

(i) Under s 120 of the Collective Redress Act, the Crown can give notice of its intention to exclude specific land from the land the subject of the right

of first refusal provisions contained in the Act when the specific land is required for another Treaty settlement;

(j) In August 2015 the Minister for Treaty of Waitangi Negotiations determined that Ngāti Pāoa has interests in the central Tāmaki region. The Minister made a preliminary decision to transfer the land at Grafton Road and at Dominion Road to Ngāti Pāoa as part of settling Ngāti Pāoa’s Treaty claims. This would remove these properties from the land the subject of the right of first refusal provisions contained in the Collective Redress Act 2014;

(k) The land at Grafton Road and at Dominion Road is part of the land originally gifted by it to the Crown shortly after the signing of the Treaty of Waitangi, and is part of the land the subject of the right of first refusal provisions in its 2006 deed of settlement with the Crown.

[8] Against this historical background, Ngāti Whātua Ōrākei pleads as follows:

(a) that under the common law of New Zealand, the Crown is required to exercise any powers to make the preliminary decision in respect of the Grafton Road and Dominion Road land, and any other decisions involving the transfer of land in the central Auckland region for the purposes of Treaty settlements:

(iii) in a manner which does not erode its mana whenua; (Paragraph [20] of the statement of claim).

(b) that, in order to make decisions which comply with the requirements set out immediately above, the Crown must:

(i) fully consult with it regarding the preliminary decision in respect of the Grafton Road and Dominion Road land, and regarding any similar decision;

(iii) not transfer land within the central Auckland region for the purpose of Treaty settlements if:

[9] Ngāti Whātua Ōrākei alleges that the Minister’s preliminary decision involved the exercise of public powers and a statutory power of decision for the purposes of the Judicature Amendment Act 1972. It says, in paragraph [25] of the statement of claim, that the Minister acted illegally by misdirecting himself in relation to the matters pleaded in paragraphs [20] and [21], and, in paragraph [26], that the Minister erred by failing to take into account as mandatory relevant considerations, the matters pleaded in paragraph [20] and [21], namely its tikanga, its ahi kā and its mana whenua.

(a) it has ahi kā and mana whenua in relation to the land in respect of which it was given rights of first refusal in the 2006 deed of settlement;

(b) Crown decisions to transfer land for the purpose of Treaty settlements to iwi who do not have ahi kā in respect of that land must be made in accordance with tikanga;

(c) if a Crown decision to transfer land to iwi who do not have ahi kā in respect of that land is to be in accordance with tikanga, there must be consultation with iwi who do have ahi kā, and the decision must:

(ii) decline to transfer the land if the transfer would unjustifiably erode the mana whenua of the iwi having ahi kā; and

(iii) decline to transfer land previously gifted unless the gifting iwi has consented to the transfer;

[11] Both the Minister and Ngāti Pāoa dispute Ngāti Whātua Ōrākei’s claims. They

(b) in 2007, the Waitangi Tribunal enquired into claims that challenged the process the Crown had followed in reaching the agreement in principle with Ngāti Whātua Ōrākei;

(c) in its report – the Tāmaki Makaurau Settlement Process Report, released on 12 June 2007 – the Tribunal was critical of the Crown’s approach to the interests of various iwi and hapū in Auckland who were not part of the proposed settlement with Ngāti Whātua Ōrākei;

(e) in February 2010 the Crown, Ngāti Whātua Ōrākei and other iwi and hapū of Tāmaki Makaurau entered into an agreement known as the Ngā Mana Whenua o Tāmaki Makaurau and Crown Framework Agreement, which in turn led to a deed of settlement known as the Tāmaki Makaurau Collective deed of settlement. These documents enabled the Ngāti Whātua Ōrākei agreement to be completed and Treaty settlements in the wider Tāmaki Makaurau region to be progressed;

(f) in February 2010, the Crown and Ngāti Whātua Ōrākei entered into a supplementary agreement, which, inter alia, recorded that, in light of the Waitangi Tribunal’s report and recommendations, the right of first refusal contained in the agreement in principle would be deleted and that the Ngā Mana Whenua o Tāmaki Makaurau and Crown Framework Agreement would provide redress relating to the right of first refusal. The Crown and Ngāti Whātua Ōrākei entered into a deed of settlement in November 2011 on this basis;

(g) legislative effect was given to the Tāmaki Makaurau Collective deed of settlement by the Collective Redress Act;

(i) the Minister is yet to make a final decision on the transfer of the Grafton Road and Dominion Road land to Ngāti Pāoa. Any transfer of those properties will require that notice be given under s 120 of the Collective Redress Act;

The assertions recorded in paras [20] and [21] of the statement of claim, noted in [8] above, are denied. To the extent that they were required to plead to the allegations contained in paragraphs [25] and [26] of the statement of claim, noted in [9] above, they deny those allegations as well.

[12] I was told from the bar that these proceedings raise, for the first time, a challenge to the

[13] Although the word “expressly” is not used by Ngāti Whātua Ōrākei in its statement of claim, it was asserted by Mr Goddard QC for Ngāti Pāoa, and accepted by Mr Hodder for Ngāti Whātua Ōrākei, that, in effect, Ngāti Whātua Ōrākei is asserting that it has exclusive ahi kā/mana whenua in the central Auckland region. If Ngāti Whātua Ōrākei is right in this assertion, then this will constrain the settlement of iwi/hapū specific grievances between the Crown and other members of the collective recognised by the Collective Redress Act. The proceeding has already delayed settlement of Ngāti Pāoa’s Treaty claim.

[14] All counsel accepted that these proceedings raise an important and novel issue. Mr

In post Treaty settlement circumstances, where the Crown has committed to an ongoing mutually respectful relationship with an iwi, and that commitment is part of the foundation for settlement deeds and Acts, is Crown conduct which is disrespectful of the iwi’s mana whenua reviewable (for error or law/disregard of relevant considerations) by reference to relevant tikanga having legal force as customary law or as values informing the general law?

[15] Ngāti Pāoa seeks the opportunity to test whether Ngāti Whātua Ōrākei’s claim can succeed as a matter of law before the parties and the Court are required to devote considerable resources to a substantive trial which would seek to determine whether Ngāti Whātua Ōrākei has exclusive ahi kā/mana whenua in the central Auckland region.

[16] The proposed preliminary questions focus on paragraphs [20], [21], [25] and

Assuming for the purposes of this application that [Ngāti Whātua Ōrākei] is able to establish the matters pleaded in paragraphs [1] to [19] of the statement of claim:

(a) is the Crown’s power to alienate land in the central Auckland region subject to the common law constraints pleaded at [20]-[21] of the statement of claim:

(b) is the Crown’s decision to transfer land to Ngāti Pāoa, in the context of a proposed Treaty settlement, amenable to judicial review on the grounds pleaded at paragraphs [25] and/or [26] of the statement of claim?

Ōrākei, at the hearing Ngāti Pāoa proposed amending the questions as follows:

(a) Is the Crown required to inquire into, and determine, [Ngāti Whātua Ōrākei’s] disputed claim to exclusive mana whenua in the central Auckland region before:

(ii) giving a notice under s 120 of the [...] Collective Redress Act 2014? (b) Is it necessary for the Court to determine [Ngāti Whātua Ōrākei’s]

disputed claim to exclusive mana whenua in the central Auckland region in order to determine these proceedings?

(c) Is the Crown’s power to alienate land in the central Auckland region subject to the constraints pleaded at [20]-[21] of the statement of claim as a matter of common law or statutory interpretation?

(d) Is the Crown’s decision to transfer land to Ngāti Pāoa, in the context of a proposed Treaty settlement, amenable to judicial review on the grounds pleaded at paragraphs [25] and/or [26] of the statement of claim?

In answering questions (c) and (d) the Court will proceed on the basis that the [Ngāti Whātua Ōrākei’s] claim to exclusive mana whenua in the central Auckland region is disputed by Ngāti Pāoa and other hapū/iwi, and will consider whether it is necessary to determine that dispute in order to determine whether the Crown’s powers are constrained in the manner pleaded. The Court will not inquire into and determine [Ngāti Whātua’ Ōrākei’s] claim to exclusive mana whenua in that region, or [Ngāti Whātua Ōrākei’s] claim that the transfer of properties to Ngāti Pāoa would be offensive to [Ngāti Whātua Ōrākei] as a matter of tikanga, in the context of the preliminary question hearing.

[19] The latter questions were further refined as a result of questioning by me in the course of the hearing. Mr Goddard accepted that question (b) and the first sentence in the concluding paragraph may not be necessary, and that the final sentence in the concluding paragraph could be included as part of this judgment, rather than as an addendum to the proposed questions.

[20] Mr Goddard argued that Ngāti Whātua Ōrākei’s claim depends on two propositions – first that Ngāti Whātua Ōrākei’s customary rights can constrain the Crown’s common law power to alienate land and secondly, that the Minister’s preliminary decision is susceptible to judicial review. He submitted that it is appropriate to test these propositions before embarking on a factual enquiry into Ngāti Whātua Ōrākei’s assertion that it has exclusive ahi kā/mana whenua in the central Auckland region. In his submission the questions which Ngāti Pāoa seeks to raise can and should be determined as preliminary questions for the following reasons:

(a) the proposed questions are questions of law. They are sufficiently distinct and separate from the question of what customary interests exist in respect of the central Auckland region to warrant a separate hearing;

(b) the questions can proceed to hearing promptly and without the need for a substantive trial;

(c) the nature of any trial required to determine questions of tikanga, ahi kā and mana whenua would fall well outside the orthodox scope of a judicial review hearing;

(d) in contrast the preliminary questions proposed are of a type that are regularly determined simply, untechnically and promptly in judicial review proceedings, on limited affidavit evidence;

(e) there is a strong case for proceeding to the substantive trial only if it is possible, as a matter of law, that Ngāti Whātua Ōrākei’s claims could succeed. It would be wrong in principle to embark

on a process which could ultimately be found to be inappropriate, and it is in the interests of efficiency not to do so, because of the resources that the Court and the parties would be required to devote to such a hearing;

(f) there are no demarcation difficulties, no risk of inadvertent findings and no possibility of duplicating evidence if the issues are dealt with separately in the way proposed;

(g) resolution of the preliminary questions could well bring the substantive proceeding to an end; and

(h) even if the substantive proceeding is not disposed of, determination of the preliminary questions would be likely to have a significant impact on the approach taken by the parties to the future conduct of the litigation.

[21] Mr Goddard was supported by Mr Ward on behalf of the Attorney-General. He argued that the proposed questions go to the heart of the legal propositions that underpin Ngāti Whātua Ōrākei’s case. He submitted that they are discrete questions of law, appropriate for preliminary determination, and that they have been framed on a basis which does not require a detailed factual enquiry by the Court into the matters pleaded.

[22] Mr Majurey also supported Ngāti Pāoa’s application. He asserted that it is clear law that the settlement of historic Treaty claims by the Crown is generally non-justiciable, and put it to me that, if this proposition is accepted, the sole focus of the proceedings becomes the exercise of the power contained in s 120 of the Collective Redress Act. He further argued that there is no nexus between Ngāti Whātua Ōrākei’s settlement and the settlement reached with the collective that supports Ngāti Whātua Ōrākei’s claim, and that there is no preference or power of veto vested in or reserved to any of the 13 iwi/hapū who constitute the collective which can preclude iwi specific settlements.

Zealand law. He accepted that its content must be proved by evidence as a matter of

fact, and acknowledged that tikanga is context dependent. Here, he said, the context includes the matters pleaded in paras [20] and [21] of the statement of claim. He put it to me that respect for Ngāti Whātua Ōrākei’s tikanga is part of the mutually respectful relationship to which the Crown has committed itself, and that that respect must inform the purposes for which powers, including those contained in the Collective Redress Act, can properly be exercised by the Crown in the Treaty settlement context. In short, he argued that context is everything. He went on to submit that Ngāti Whātua Ōrākei’s case is integrated and that it cannot sensibly be divided. He submitted that Ngāti Pāoa’s proposed preliminary questions are antithetical to the coherent and expeditious determination of the proceedings. He said that no credible division of evidence is possible, that any evidence on relevant tikanga will necessarily be holistic and comprehensive, and that reference to the texts of settlement agreements and Waitangi Tribunal reports can only be secondary evidence, where primary evidence is available. He denied that the proposed preliminary questions are discrete questions of law suitable for separate hearing, and submitted that the essential pleadings made by Ngāti Whātua Ōrākei – in particular those contained in paragraphs [20] and [21] of the statement of claim – are made in context, and not in the abstract. He submitted that Ngāti Whātua Ōrākei will be relying on context when they argue that the Crown has constrained its entitlement to transfer the land in Grafton Road and in Dominion Road. He also submitted that the Court should be reluctant to order a preliminary hearing because novel questions arise. He noted that jurisprudence on customary law is nascent, particularly as relates to the obligations of the Crown, and nonexistent as it relates to the Crown’s obligations in respect of ahi kā and mana whenua, including under Treaty settlements, deeds and legislation. He submitted that, given that this is a developing area of the law, appeal, or multiple appeals, is overwhelmingly likely and that it is fallacious to suggest that ordering a split trial is likely to minimise the time and costs involved in resolving these proceedings.

The court may, whether or not the decision will dispose of the proceeding, make orders for—

(a) the decision of any question separately from any other question, before, at, or after any trial or further trial in the proceeding; and

(b) the formulation of the question for decision and, if thought necessary, the statement of a case.

[25] The discretion conferred by the rule is broad. The starting point is the assumption that all matters in issue in any proceeding should be determined in the one trial; this course will normally be the most expeditious and efficient way of dealing with a proceeding.¹The burden of displacing the presumption rests on the party contending for a split trial. As has been noted by the commentators,²the

burden has variously been described as “not insignificant”, “moderate” and “heavy”.³It has been suggested that an appropriate approach is to consider whether the applicant has established good, preponderant reasons in favour of separate questions being determined apart from the substantive trial.⁴

[26] The various criteria that have been taken into account in deciding whether to exercise the discretion to order a split trial were helpfully collated by White J in Turners & Growers Ltd v Zespri Corporation Ltd.⁵They are as follows:

(a) the likelihood of delay in finally resolving the proceeding; (b) the probable length of the hearings if there is a split trial;

¹Turners & Growers Ltd v Zespri Group Ltd HC Auckland CIV-2009-404-4392, 5 May 2010 at [10]; Karam v Fairfax NZ Ltd [2012] NZHC 887 at [58]; Clear Communications Ltd v Telecom Corporation NZ Ltd (1998) 12 PRNZ 333 (HC) at 334.

²Andrew Beck and other Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [HR 10.15.05(2)].

³Karam v Fairfax NZ Ltd, above n 1, at [58](d); Turners & Growers Ltd v Zespri Group Ltd,

above n 1, at [10]; KPMG New Zealand v Gemmell HC Auckland CIV-2008-404-4288, 27

March 2009 at [20]; Clear Communications Ltd v Telecom Corporation NZ Ltd, above n 1, at

(e) a balancing of the advantages to the parties and the public interest in shortening litigation against any disadvantages asserted by parties opposing a split trial;

(f) demarcation difficulties in defining issues to be addressed at the first trial and those left for the second;

(h) inadvertent disqualification of a Judge who has expressed views at the first trial on matters for decision at the second trial;

(i) inadvertent findings at the first trial upon matters that are for full evidence and argument at the second hearing;

(m) the need for a second round of discovery or other interlocutories and amended pleadings following the first trial; and

(n) rostering difficulties in ensuring that the same Judge is available for the second hearing.

[27] In addition to the above, it has been acknowledged that the Court should be reluctant to order split trials in cases which involve the determination of novel areas of law.⁶

[28] It is trite law that there can be myriad difficulties with split trials.⁷

[29] I now turn to consider the application of these various factors in the present case.

[30] First, I note that it is likely that there will be delay in finally resolving the proceeding. It became clear that amended pleadings will be necessary. There is something of a disconnect between the width of the declarations sought and Ngāti Whātua Ōrākei’s claims. In his submissions Mr Hodder explained that the claim is not intended to extend to the Crown’s right to alienate land generally. This is not clear from the pleadings currently before the Court. Further, as I explain below, the proceedings need to be served on other iwi/hapū who are potentially affected by them. Those iwi/hapū need to be given the opportunity to participate. Undoubtedly discovery will be necessary. Although there were competing assertions by counsel as to the amount of material required to be discovered, it seems to me that there is likely to be a reasonable amount of historical material required to be discovered in relation to the matters raised by the substantive proceedings. The possibility of other interlocutory applications cannot be discounted. The Court may have to consider the form of the proceedings and what is or is not appropriate in the judicial review context. It may have to consider whether or not it is appropriate to state a case and refer the same to the Maori Appellate Court pursuant to s 61 of the Te Ture Whenua Maori Act 1993 (the Maori Land Act 1993). Any trial of the substantive issues is likely to take some weeks whether in this Court or in the Maori Appellate Court. Given the importance and novel nature of the proceedings, it is possible that a full High Court could be convened if the matter stays in this Court. One can say with confidence that a full hearing is unlikely this year.

[31] In contrast, if the issues raised by the proposed preliminary questions are to be heard discretely, any hearing for that purpose is likely to take rather less time. Mr Goddard suggested one to two days. Mr Hodder disputed this and asserted that

_{Ngāti Whātua Ōrākei would still need to adduce
significant evidence in order to}

demonstrate the legal requirements of tikanga, ahi kā and mana whenua on the Crown even in the context of the preliminary questions suggested. I suspect that Mr Goddard’s prediction is optimistic and that Mr Hodder’s prediction is pessimistic. It seems to me that any decision on the preliminary questions proposed would be likely to take considerably less time than a trial of the substantive issues, although probably rather longer than one to two days.

[32] Secondly, if the preliminary questions are resolved in favour of Ngāti Pāoa, then that would likely be an end to the litigation. This is the single most important advantage of ordering a split trial. It is only an advantage however if Ngāti Pāoa and the Crown succeed at the first trial. Although Mr Goddard asserted to the contrary, in my judgment there is likely to be no significant saving of time if the preliminary questions are decided in favour of Ngāti Whātua. Indeed I suspect matters could well take longer, because of the need for split trials, evidence at both, and appeals from decisions coming out of either or both.

[33] There is of course an advantage to the Attorney-General, Ngāti Pāoa and Marutūāhu if the trial is split. They will not be put to the time and expense of preparing for the substantive hearing – at least not initially. If the preliminary questions are resolved in favour of Ngāti Pāoa, it will be able to complete its Treaty settlement with the Crown. The iwi/hapū who are members of Marutūāhu will be able to advance their claims. So will other iwi/hapū yet to be served. The public interest would also be served if the litigation can be shortened by determining the preliminary questions, given the pressures on Court time.

[34] As against this, it would be disadvantageous to Ngāti Whātua Ōrākei if the issues raised by this litigation are not fully ventilated and resolved. If the proposed preliminary questions are answered in Ngāti Pāoa’s favour, the proceeding would be disposed of essentially on a legalistic basis, without exploring the base concerns raised by Ngāti Whātua. I suspect that those base concerns would remain a cause for dissatisfaction, simmering in the background, and that sooner or later, they would come before the Courts again, albeit in a different context. The public interest will also be served if the matters raised by the substantive proceedings are fully ventilated. Ngāti Pāoa and other iwi and hapū claim interests in land in the central Auckland region. A definitive determination on the Crown’s post settlement obligations to Ngāti Whātua Ōrākei is likely to be of significant value not only to

others claiming an interest in land in the central Auckland region, but also to the wider public.

[35] Thirdly, and notwithstanding the submissions I heard to the contrary, there is the possibility of demarcation difficulties in defining the preliminary questions. Those difficulties are illustrated by the fact that Ngāti Pāoa has already made three attempts to define the questions it wishes to deal with on a preliminary basis. Mr Hodder argued that many of the benefits Ngāti Pāoa asserts will follow from a split trial will only flow if a demarcation between matters of fact, and the legal consequences, is clear.

[36] The initial questions contained in the application, and noted in para [17] above, have a delusive simplicity, because they assume the existence of the facts pleaded in paragraphs [1] to [19] in the statement of claim. The questions are, in effect, a strike out application. However Mr Goddard and Mr Ward in argument rather resiled from any wholesale acceptance of the matters pleaded in [1] to [19] of the statement of claim. Both ended up asserting that “limited evidence” will be required. Mr Hodder took a much less sanguine approach to what will be required if an order for split trials is made.

[37] It is clear from the respective pleadings that there are issues of fact in dispute between the parties. With respect to Mr Majurey, as the claim is pleaded, it is not simply a matter of interpreting s 120 of the Collective Redress Act. Any hearing – whether on the proposed preliminary questions or on the substantive issues – will, in my judgment, need to consider the existence and relevance of the tikanga asserted by Ngāti Whātua, and the existence and exclusivity of the ahi kā/mana whenua claimed. Unless this can be done on assumed facts, and this seems unlikely, evidence will be necessary. In any event assuming facts, when there is no issue of striking out a cause of action, will seldom enable final determination other than of a

hypothetical question.⁹The matters raised by Ngāti Whātua Ōrākei cannot be said to be

[38] The opening words used in paragraph [20] are, “Under the common law of New Zealand, the Crown is required ...”. This assertion carries through into paragraphs [21], [25] and [26] because they deal with what is required to make a decision that complies with the

_{matters alleged in paragraph [20]. The logic of Ngāti Whātua
Ōrākei’s claim is that tikanga,}

while context dependent, includes the matters pleaded in paragraphs [20] and [21] of the statement of claim. The allegation is that tikanga, embracing ahi kā and mana whenua, is part of the common law of New Zealand and that it constrains how the Crown can conclude Treaty settlements that involve the transfer of land in the central Auckland region. It is difficult to divorce the factual assertions made from the matters pleaded in paragraphs [20], [21], [25] and [26]. There is force in Mr Hodder’s argument that Ngāti Whātua Ōrākei’s case is integrated, and that it cannot be readily divided.

[39] If this is correct, there could well be difficulties of issue estoppel were the proposed questions dealt with on a discrete basis. The Court at the first trial would have to make at least limited enquiry into the tikanga, ahi kā and mana whenua asserted. That exercise would have to be repeated and probably expanded if the substantive hearing went ahead.

[40] A Judge determining the preliminary questions could easily but inadvertently disqualify him or herself. If a full Court is to be convened, this problem would be compounded. There could well be rostering difficulties if there are to be two trials.

[41] Findings could be made in the course of the first trial upon matters that would be the subject of further evidence and more detailed argument at the second hearing. It seems likely that witnesses would have to be recalled to any second hearing, and that additional time would be necessary for counsel and the Court to “come up to speed” twice.

[42] Another issue which, to my mind, is important in this case is the prospect of appeal or more likely multiple appeals. Given the issues raised by these proceedings, I accept that there must be a very real prospect of appeals, both against any decision on the preliminary questions if a split trial is ordered, and also on the substantive issues, whether or not a split trial is ordered. If a split trial is ordered there could potentially be four appeals. If a single trial is held into all issues, a maximum of two appeals will be available.

[43] I have considered all of these various factors. Some point in favour of a split trial – in particular the possibility that a decision on the preliminary issues could finally determine the proceedings with consequent savings of time and expense.

Others point in favour of a single trial – in particular the wider interest in the base issues being resolved, demarcation difficulties, the consequences of a split trial if the preliminary questions are answered in Ngāti Whātua Ōrākei’s favour, and the risk of multiple appeals. In my judgment, the most expeditious course¹⁰is likely to be achieved if only one trial is held, enquiring into all matters raised by Ngāti Whātua Ōrākei. On balance, I consider that it would be inappropriate to order a split trial.

[45] Ngāti Whātua Ōrākei is entitled to its reasonable costs and disbursements in respect of the application made by Ngāti Pāoa. It is my preliminary view that costs should be fixed on a 2B basis. If the parties accept that indication, I anticipate that counsel will be able to agree costs. If there is any disagreement, then I make the following directions:

(a) Ngāti Whātua Ōrākei is to file a memorandum in support of such application as it wishes to make for costs within 10 working days of the date of this judgment;

memorandum in response within a further 10 working day period; (c) memoranda are not to exceed 10 pages.

[46] I will then deal with the issue of costs on the papers unless I require the assistance of counsel.

[47] Marutūāhu is a post-settlement governance entity for a collective comprising

_{Ngāti Maru, Ngāti Pāoa, Ngāti Tamaterā,
Ngāti Whanaunga and Te Patukirikiri.}

¹⁰The object of the High Court Rules is to secure “the just, speedy and inexpensive” determination

[48] On 23 September 2015 the Court ordered, by consent, that Marutūāhu be granted intervener status. The Court left open the terms on which it was entitled to participate in the proceeding, pending agreement between the parties, or, if required, determination by the Court.

[49] Marutūāhu sought full rights of participation, albeit that it agreed that it would not seek costs, or be entitled to appeal the Court’s decision. Ngāti Whātua Ōrākei initially accepted that Marutūāhu should be entitled to be served with any papers filed, and that it should be entitled to appear and file written submissions at the substantive hearing. It however contested Marutūāhu’s right as intervener to appear and file written submissions at any interlocutory hearing, to make oral submissions at any interlocutory hearing and at the substantive hearing without leave, and to cross-examine any witness.

[50] It is clear that Marutūāhu is directly affected by a number of the declarations sought by Ngāti Whātua Ōrākei.

[51] During the course of the hearing, I canvassed with counsel whether Marutūāhu should be joined as an additional defendant. As I noted above, at [4], Mr Majurey on behalf of Marutūāhu accepted that it would be appropriate to join his client as a third party. Mr Hodder wished to take instructions from Ngāti Whātua Ōrākei. He has since filed a memorandum confirming that Ngāti Whātua Ōrākei does not oppose the joinder of Marutūāhu as a third defendant. He noted that its joinder as a party has the likely consequence that there will be an increased cost burden, but expressed confidence that the overall costs can be managed by sensible cooperation and appropriate case management.

[52] I am satisfied, in terms of r 4.56, that Marutūāhu’s presence before the Court

is necessary, so that the Court can adjudicate on, and settle all questions involved in

[53] It is not appropriate to make a costs order in relation to this matter and I

[54] At the close of the hearing, I raised with counsel whether or not the remaining iwi/hapū who comprise the Ngā Mana Whenua o Tāmaki Makaurau collective, should be served with the proceeding so that they can determine whether or not they wish to participate.

[55] Mr Hodder once again wished to take instructions. He has done so and he advises that the remaining members of the collective not already served are as follows:

He also suggests that other iwi could possibly be affected, namely: (d) Waikato-Tainui; and

[56] Ngāti Whātua Ōrākei does not oppose service on these additional iwi/hapū.

[57] The Attorney-General did not object to these additional iwi/hapū being served. Mr Ward also suggested that there are additional iwi/hapū claiming customary interests in the Auckland area. He proposed that those entities should also be served.

[58] Ngāti Pāoa considered it appropriate to direct that only members of Tāmaki Collective not already involved should be served. It took the view that the other iwi/hapū which Ngāti Whātua Ōrākei and/or the Crown suggest should be served do not have

[59] Marutūāhu agreed with Ngāti Pāoa that it is not necessary to serve iwi/hapū not part of the Tāmaki Collective. It also took the view that Waiohua- Tāmaki Rōpū is a separate legal entity in its own right and that the iwi/hapū who comprise the rōpū should be separately served.

[60] In my judgment, it is appropriate to direct that all parties who could potentially be affected by the proceeding, should be served. They should be served separately. They should be given the opportunity to seek to be heard, either as interveners or as parties. Whether they have sufficient interest in the proceeding can be considered if there is an objection to them intervening or seeking to join as a party. In the event that they become involved in the proceeding, it may be appropriate for them to consider joint representation (e.g. by a rōpū), although agreeing to joint representation is not a pre-condition for iwi/hapū seeking to join the proceeding. Consideration will be given to these issues at a case management conference to be held in relation to this matter.

(a) The proceeding, together with a copy of this judgment, be served by Ngāti Whātua Ōrākei on the remaining members of the Ngā Mana Whenua o Tāmaki Makaurau collective not already served – namely:

(b) When attending to service, Ngāti Whātua Ōrākei is to disclose to each of the iwi/hapū to be served, the identity of all of the other iwi/hapū/rōpū served or to be served and the known legal representatives of any existing or prospective party/intervener.

(d) Any of the iwi/hapū directed to be served who wish to participate in the proceeding, are to file the appropriate application with the Registrar, and serve the same on existing parties, including Marutūāhu, within 30 days of the date of service on them. The application is to identify why the iwi/hapū claim to have an interest in these proceedings.

(e) Any iwi/hapū wishing to participate, is to advise the Registrar and other parties, including Marutūāhu, whether or not it is prepared to consider joint representation with either an existing party or with other served iwi/hapū.

estimated time three hours – on the first available date after the expiry of the 30 day period noted above.

Solicitors/intervener: Chapman Tripp, Auckland Crown Law, Wellington Meredith Connell, Wellington

High Court of New Zealand Decisions

Ngāti Whātua Orākei Trust v Attorney-General [2016] NZHC 347 (4 March 2016)