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High Court of New Zealand Decisions |
Last Updated: 29 May 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2017-404-296
[2018] NZHC 1231 |
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BETWEEN
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MOTAIREHE WHANGA TE URI O RANGIHOKAIA KO NGĀTIWAI KI AOTEA
INCORPORATED
Plaintiff
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AND
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NICOLA MACDONALD AND KRIS MACDONALD AS TRUSTEES OF THE NGĀTI REHUA -
NGĀTIWAI KI AOTEA TRUST BOARD
Defendants
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Hearing:
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12 October 2017
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Appearances:
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P F Chambers for the Plaintiff P J Andrew for the Defendants
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Judgment:
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29 May 2018
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JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 29 May 2018 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
..........................................
Solicitors / Counsel:
Mr P F Chambers, Barrister, Auckland
Mr M Henley-Smith (plaintiff’s instructing solicitor), Henley-Smith Law, Solicitors, Auckland Mr P J Andrew, Barrister, Auckland
Ms J Braithwaite (defendants’ instructing solicitor), Braithwaite & Smail Ltd, Solicitors, Auckland
MOTAIREHE WHANGA TE URI O RANGIHOKAIA KO NGĀTIWAI KI AOTEA INCORPORATED v NICOLA MACDONALD AND KRIS MACDONALD AS TRUSTEES OF THE NGĀTI REHUA - NGĀTIWAI KI AOTEA TRUST BOARD [2018] NZHC 1231 [29 May 2018]
Introduction
[1] The plaintiff is an incorporated society representing a group of Māori land owners based at Motairehe Whanga (Katherine Bay) on Motu Aotea (Great Barrier Island). It seeks declaratory judgment against the defendants, as representatives of Ngāti Rehua – Ngātiwai ki Aotea Trust Board (the trust board).1 The trust board is in the process of negotiating a Treaty of Waitangi settlement with the Crown. The essence of the plaintiff’s complaint is that it has been excluded from the settlement process by the trust board’s adopting an incorrect whakapapa.
[2] The first named defendant, Ms MacDonald, is the chair of the trust board. She has applied to strike out the claim in its entirety. The principal issue for determination is whether the plaintiff’s claim and the declarations sought are justiciable; that is to say, whether the claims can properly be determined by a court.
[3] The plaintiff has also made an interlocutory application for a preservation order. The plaintiff seeks an order that funds paid to the trust board be secured until the plaintiff’s claimed “rights to those funds have been determined”, and ancillary orders. Ms MacDonald has applied for an order that this application also be struck out.
Conclusions in summary
[4] The statement of claim should be struck out in its entirety.
[5] The first and second declarations sought by the plaintiff are non-justiciable. They seek interpretations of the whakapapa of Ngāti Rehua and Ngāti Wai as including the descendants of Rangihokaia Ki Aotea. It is doubtful that such declarations can be made under s 3 of the Declaratory Judgments Act 1908. In any event, the declarations sought would stray into an area into which the High Court should not venture in this case – factual and policy issues regarding Treaty of Waitangi settlements.
[6] The third and fourth declarations sought are that the plaintiff is entitled to negotiate with the Crown and entitled to some, if not all, settlement money paid by the Crown to the defendants. There are several reasons why these declarations cannot be made. In summary: the Crown is not a party to this proceeding; the Crown may negotiate with whomever it chooses; the defendants will not be in receipt of settlement money as a “governance entity” is to be established for that purpose; and, fundamentally, the principle of comity or non-interference in parliamentary proceedings renders such issues non-justiciable.
[7] The fifth and sixth declarations seek relief that can only follow if the other orders are granted. The statement of claim should therefore be struck out in its entirety.
[8] The application for preservation orders cannot proceed in the absence of the substantive claim. In addition, the order in any event cannot be made against the trust board, or the defendants, because they will not receive any settlement moneys. For these reasons the interlocutory application will also be struck out.
Factual background
[9] The plaintiff is an incorporated society, established on 25 January 2017. The date of its establishment precedes most events relevant to the trust board’s negotiations for a Treaty settlement with the Crown, but neither party addressed issues that may relate to the date of incorporation. The plaintiff represents a group of Māori landowners at Motairehe Whanga on Aotea. The group whakapapa to Rangihokaia Ki Aotea. The essence of their complaint is that the trust board has intentionally or recklessly adopted a definition of whakapapa in its dealings with the Crown that excludes descendants of Rangihokaia Ki Aotea.
[10] The trust board was incorporated under the Charitable Trusts Act 1957 with the name Aotea Ngātiwai Trust. In 1996 its name was changed to Ngāti Rehua – Ngātiwai ki Aotea Trust Board.
[11] The whakapapa adopted by the trust board originates from two documents.
[12] The first, the trust board’s deed of mandate, is dated 23 November 2009. The purpose of the deed of mandate was to establish that the trust board had “obtained a durable mandate to represent Ngāti Rehua – Ngāti Wai ki Aotea in negotiations with the Crown regarding a comprehensive settlement of all Ngāti Rehua – Ngāti Wai ki Aotea historical Treaty claims.”
[13] The second document arises from a requirement in the deed of mandate that the trust board prepare a “strategy” to obtain its mandate. The strategy was prepared and annexed to the deed of mandate (the strategy document). The plaintiff takes issue with a section of the strategy document titled “Te Whakapapa o Ngati Rehua” – a detailed genealogy. The plaintiff asserts in its statement of claim and submissions that the genealogy adopted excludes descendants of Rangihokaia Ki Aotea.
[14] The Crown recognised the trust board’s deed of mandate on 16 December 2009. The Ministers of Māori Affairs and Treaty of Waitangi Negotiations jointly wrote to the trust board confirming the Crown’s recognition of the mandate to negotiate historical Treaty claims on behalf of Ngāti Rehua – Ngāti Wai ki Aotea.
[15] Formal negotiations commenced following the Crown’s recognition of the mandate. On 18 June 2011, it was agreed in principle that the Crown would enter a deed of settlement with Ngāti Rehua – Ngāti Wai ki Aotea. On 16 December 2016, representatives of the Crown and the trust board initialled a deed of settlement. The deed provides a detailed history of Crown interaction with Ngāti Rehua – Ngāti Wai ki Aotea and provides for a Crown apology. It also provides for cultural redress, financial and commercial redress, and settlement legislation.
[16] Clauses 8.6 to 8.8 of the settlement deed define Ngāti Rehua – Ngāti Wai ki Aotea. The plaintiff says this whakapapa is incorrect, because it derives from the earlier definitions of the claimant group in the deed of mandate and strategy document.
[17] Clause 4.5 of the deed provides that the redress provided by the Crown is intended to benefit Ngāti Rehua – Ngātiwai ki Aotea collectively, but may also benefit particular members or groups within the iwi if the “governance entity so determines”. Financial redress in particular is addressed in cls 6.1 and 6.2. They provide that the Crown will pay the “governance entity” $5.1 million, of which
$500,000 is due within 10 days of the deed’s execution.
[18] The “governance entity” is not the trust board, but a new entity to be incorporated after the deed of settlement has been formally concluded. No money has been paid by the Crown because that has not happened.
[19] Clause 7.1 of the deed obliges the Crown to prepare a draft settlement Bill for introduction to the House of Representatives. Clause 7.5 states that the “deed, and the settlement, are conditional on the settlement legislation coming into force”. A draft Bill was prepared and annexed to the deed of settlement when the latter was initialled. To date, it has not been introduced to the House and the deed remains conditional.
The plaintiff’s substantive claim
[20] I have referred to the plaintiff’s argument that the whakapapa presented by the trust board is incorrect. The plaintiff pleads that the defendants have created or otherwise relied upon a fictionalised whakapapa to remove all recognition of the plaintiff and the people it represents, and that they have been incorrectly classified as part of Tainui. As a result, it is alleged, the defendants have ignored a class of Treaty claimant entitled to seek redress.
[21] The declarations and a related order sought by the plaintiff are as follows:
The strike-out application
[22] Ms MacDonald claims in the strike out application that the plaintiff has raised issues that are non-justiciable and seeks relief that cannot be granted by a court. She also argues that there is no real dispute between the parties because the group represented by the plaintiff is included within the definitions in the settlement deed and, as a result, they will be entitled to benefit under the Treaty settlement.
[23] Mr Andrew’s submissions for the defendant focused on the political and, in his submission, non-justiciable nature of the plaintiff’s contentions. He submitted that: there is no satisfactory legal yardstick against which to measure these issues; the appropriate forums in which to air the plaintiff’s contentions are the Waitangi Tribunal or the parliamentary select committee; that the definition of the group entitled to claim under the settlement will ultimately be determined by Parliament and no rights will be affected until such time as Parliament has enacted legislation; and the alleged error – false or erroneous whakapapa – was not an arguable error which could be divorced from policy or political considerations.
[24] Mr Chambers, for the plaintiff, argued that the issue of the validity of the whakapapa and potential deprivation of a group of people from making any future claims against the Crown or government agencies is a justiciable issue. He contested Ms MacDonald’s contention that there is no real dispute between the parties. Mr Chambers submitted that the claim does not attempt to attack the trust board’s deed of mandate or the Crown’s acceptance of that mandate, but to question the validity of the whakapapa that was presented by the defendants and to seek a decision correcting that inaccuracy. In his submission, if the whakapapa is false or
inaccurate in fact, that gives rise to a justiciable issue that may result in declarations under the Declaratory Judgments Act.
Principles of strike out
[25] The Court is required to assume that the facts pleaded in the statement of claim are true. In Ngāti Whātua Ōrākei Trust v Attorney-General, the Court of Appeal affirmed the importance of assuming the truth of pleaded facts in cases involving dispute over tikanga concepts.2 That case involved issues of ahi kā and mana whenua, but the principle applies with equal force when the case concerns whakapapa.
[26] A strike-out application may only be granted if the Court is satisfied the causes of action are so clearly untenable that they cannot possibly succeed. Such a jurisdiction is to be exercised sparingly and only in clear cases where there is sufficient material to decide the application.3
[27] Mr Chambers emphasised in submissions that care is necessary where strike out is sought in a case concerning an area of the law that is confused or developing.4 I accept that the area of the law raised in this case is developing.5 But that fact and the resulting need for care does not preclude an order striking out the claim if it is clearly untenable.6
Is this a justiciable claim?
Principles
[28] The central issue on this application is whether the declarations sought relate to issues that are justiciable. In Curtis v Minister of Defence, Tipping J defined a non-justiciable issue as:7
2 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 554 at [83].
3 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
4 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ.
6 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 at [84].
7 Curtis v Minister of Defence [2002] NZCA 47; [2002] 2 NZLR 744 (CA) at [27].
one in respect of which there is no satisfactory legal yardstick by which the issue can be resolved. That situation will often arise in cases into which it is also constitutionally inappropriate for the Courts to embark.
[29] As Arnold J said for himself and Elias CJ in Ririnui v Landcorp Farming Ltd, decisions about the Treaty of Waitangi often involve legislation, and the issues involved in settlements, including the nature, form and amount of redress, “are quintessentially the result of policy, political and fiscal considerations that are the proper domain of the executive rather than the courts”.8
[30] The observations in Ririnui were made in a judicial review case, but are equally applicable to a proceeding such as the present which involves the interpretation of deeds and documents prepared for the sole purpose of Treaty settlement legislation.
[31] In his submissions for the first defendant, Mr Andrew relied on the decision of Davison J in this Court in Ngāti Whātua Ōrākei Trust v Attorney-General.9 Shortly after this application had been heard, the Court of Appeal released its decision dismissing an appeal from Davison J’s decision.10 Mr Andrew alerted the Court to that decision, but neither party provided further submissions on its applicability to this case. The Supreme Court granted leave to appeal.11 It has recently heard the appeal and its decision is pending.
[32] The High Court and Court of Appeal judgments are directly relevant to this case. I also consider that the Ngāti Whātua Ōrākei Trust case, and earlier cases referred to in the judgments, are not distinguishable from the present case notwithstanding the fact that those other cases were proceedings against the Crown but the present case is not.
9 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516.
10 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 554.
11 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 24.
[33] The facts of and issues in Ngāti Whātua Ōrākei Trust may be stated succinctly for present purposes.12 The plaintiff, Ngāti Whātua Ōrākei Trust, had entered into a Treaty settlement with the Crown in 2012.13 Subsequently, the Minister of Treaty of Waitangi Negotiations made three decisions which cumulatively proposed the transfer of certain lands to the second and third defendants, Ngāti Paoa and Marutūāhu, as part of a settlement of historical wrongs.
[34] Ngāti Whātua claimed mana whenua and ahi kā over the lands proposed to be transferred and issued proceedings challenging the Minister’s decisions. It claimed the Crown was required to exercise any powers to make the decisions in accordance with principles of tikanga and obligations in respect of the Treaty of Waitangi, along with obligations owed directly to the plaintiff under its own settlement deed and settlement legislation. Ngāti Whātua Ōrākei Trust claimed, in the alternative, that those principles and obligations were mandatory considerations the Minister had failed to adequately consider.
[35] The plaintiff sought declarations requiring the Crown to comply with matters such as tikanga, and declarations that the Crown had acted inconsistently with its obligations. It also sought what Davison J described as a “passive declaration”.14 This was “a declaration that Ngāti Whātua Ōrākei has ahi kā and mana whenua in relation to the [land proposed to be transferred]”. That declaration is similar to declarations A and B sought in the present case. These are the declarations concerning the plaintiff’s right to interpret the whakapapa of Ngāti Rehua – Ngātiwai ki Aotea as including the descendants of Rangihokaia Ki Aotea, and as excluding the Tainui line.
[36] The defendants claimed that the decisions did not affect the plaintiff’s interests, but were merely preliminary steps taken in relation to the preparation of proposed legislation. They also contended that the decisions involved policy and political considerations relating to Treaty claims which were within the sphere of
13 Ngāti Whātua Ōrākei Claims Settlement Act 2012.
14 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 at [133].
parliamentary process and in consequence beyond the reach of judicial review. They applied to strike out the claim.
[37] Although the declarations sought in Ngāti Whātua Ōrākei Trust did not relate directly to Parliament’s consideration of Treaty settlement issues, Davison J held:
[122] In my view, any declaration that would require the Crown, when it is formulating a Treaty settlement offer intended to be made subject to the enactment of authorising legislation, to proceed in the prescriptive manner sought and contended for by the plaintiff, would clearly intrude into the realm of interference with parliamentary business, and into the very area into which the Court should not go.
[123] As the Court of Appeal emphasised in Milroy, the focus is not on the remoteness of the decision from the political process but instead on the function of the decision. Where the challenged decision relates to matters involving the development or application of political policy, in a pre- legislative context, as was the case here, the function of the decision was not that of determining the nature and extent of Ngāti Whātua’s rights in terms of mana whenua and whether it would be adversely affected by the settlement proposal, but rather was an intensely political decision, closely tied to the preparation and presentation of legislation to Parliament. Even if the decision did in fact adversely affect the rights of Ngāti Whātua in a way that breached the common law by failing to recognise and apply tikanga and common law, the enactment of authorising legislation would render those actions and the transfer of land provided for by the legislation lawful.
[38] A particular issue identified by Davison J with the “passive declaration” sought by Ngāti Whātua Ōrākei Trust was that mana whenua over the Auckland isthmus had already been considered by the Waitangi Tribunal, a body with “specialist knowledge and expertise”.15 The Judge also said:
[134] ... I consider that there would be no utility in the making of such a declaration, when the question of whether Ngāti Whātua has ahi kā and mana whenua in relation to the land has been overtaken by the now recognised claims of mana whenua by the other iwi comprising the Tāmaki Makaurau Collective, claims the plaintiff itself acknowledged by joining the Collective and agreeing to share the redress provided to the Collective by the Crown.
[39] Ngāti Whātua Ōrākei Trust submitted that the degree to which a declaration touched on matters of political process could be determined on a “spectrum” where some declarations may relate more to the legality and rights of an applicant, while
15 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 at [134].
others fall too close to the political process to be examined by the Court.16 On this the Judge said:
[130] Notwithstanding the concept of a spectrum, I nevertheless agree with the defendants’ submission, that here the function of the challenged decision making was closely tied and related to the development of legislation. While, as stated by the Supreme Court, Treaty context itself does not preclude review, in the present case, the function and nature of the decisions, and the relief sought mean that it would be inappropriate for the Court to intrude into what is clearly decision making falling within the province of the executive branch of government in determining how best to proceed in the public interest in settling the overlapping Treaty claims of the second and third defendants.
[40] In striking out the claim, the Judge concluded that the decisions in question were “closely related to the development and preparation of legislation, which, if enacted by Parliament, would establish the legal authority for the transfer of the selected properties”.17 The Minister had made a “quintessentially political decision” that touched on political and fiscal factors, along with the public interest in the best means of achieving Treaty settlements.18
[41] He said:
[143] While the plaintiff argues that it is not seeking to interfere with the legislative process, and that the declarations it seeks are necessary to clarify and determine the nature and scope of the post-settlement obligations owed to Ngāti Whātua by the Crown, and which apply whenever the Crown contemplates settlements with other iwi that would involve the transfer of land located within what Ngāti Whātua considers its core area of interest, in the absence of a judicially reviewable decision, the Court will not embark on a process that necessarily involves consideration of declarations that are directed at imposing obligations or constraints on the Crown in relation to the preparation of legislation to be submitted for the consideration of Parliament, and the Court would not grant the declaratory relief sought.
[42] The Court of Appeal considered there was merit in the appellant’s submission that the Judge had incorrectly made factual determinations at the strike-out stage of the proceedings.19 The Court of Appeal nevertheless held that the High Court had been correct to strike out the claim.20 The Court of Appeal focused on its previous
17 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 at [139].
18 At [141].
19 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 554 at [79].
20 At [84].
decisions in Te Runanga o Wharekauri Rekohu Inc v Attorney-General (Sealord),21
Milroy v Attorney-General,22 and New Zealand Maori Council v Attorney-General.23
[43] In the New Zealand Māori Council case, the plaintiff sought a declaration that a transfer of Crown forest land without a Waitangi Tribunal recommendation was in breach of the Crown’s contractual obligations and statutory duties.24 The proposal for the Crown to make that transfer had originated in a deed in settlement of Treaty claims and it was in relation to that deed that the declarations were sought. Legislation was pending.
[44] In that case, O’Regan J said for the Court:
[60] If the legislation is passed, therefore, what is proposed in Part 12 will be lawful. If the legislation is not passed, what is proposed in Part 12 will not happen. Either way, there is no action or proposed action of the Crown, other than the introduction of the legislation, which could be the subject of a declaration. And as both the Sealords case and Milroy establish, the courts will not grant relief which interferes or impacts on actions of the Executive preparatory to the introduction of a Bill to Parliament, because to do so would be to intrude into the domain of Parliament. For these reasons we decline to make the declaration set out at para [9](b) above.
[45] In Ngāti Whātua Ōrākei Trust, the Court of Appeal concluded with observations of direct relevant to an assessment of the justiciability of the declarations in this case:25
- [100] We see these authorities as presenting a fatal obstacle to Ngāti Whātua Ōrākei’s claim. Mr Hodder seeks to distinguish them on the basis that there is in fact a “yardstick” that could be applied for the purposes of reviewing the disputed decisions, namely the rights asserted by Ngāti Whātua in the statement of claim if they were upheld. But the answer to that proposition is simply that the proposal is not that the properties be transferred, but that there be legislation authorising that to occur. We consider it would be wrong in principle for a court to declare unlawful an outcome intended to be secured only if authorised by Parliament.
[101] While the declaratory relief is not couched expressly in such terms, added together, the declarations sought would have that effect. At the hearing of the appeal, Mr Hodder offered proposed revised declarations that he
21 Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) (Sealord).
22 Milroy v Attorney-General [2005] NZAR 562 (CA).
23 New Zealand Maori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318.
24 At [9].
25 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 554.
suggested would be better than those contained in the amended statement of claim. ...
...
[104] ... In the present case, the arrangements agreed in respect of the disputed decisions is for legislation to be introduced that would give authority for the land to be referred. But if that does not occur, or the legislation is introduced but not enacted, the disputed properties will not be transferred. In the meantime, declarations such as those sought by Ngāti Whātua Ōrākei would inevitably and directly relate to the development of legislative proposals. That would be their only point: in the absence of legislation they would otherwise be an empty gesture declaring unlawful something that was not intended to happen.
[105] Putting this another way, there is no proposal that will affect Ngāti Whātua Ōrākei’s rights other than a legislative one. This is territory that the courts will not enter in accordance with the principle of non-interference.
[106] These conclusions apply regardless of the source of the unlawfulness alleged, whether it be a breach of the Treaty, of Ngāti Whātua’s mana whenua, tikanga and customary rights, the honour of the Crown, or rights derived from the United Nations Declaration of the Rights of Indigenous Peoples. They mean the claim was properly struck out. ...
Evaluation
[46] The principal difference between Ngāti Whātua Ōrākei Trust and the present case is that the plaintiff here does not seek declarations against the Crown (as earlier noted). That difference is not material. Whether the Crown is a party to the proceeding (and arguably it should have been) does not change the extent to which the matters targeted by the declarations are part of the Treaty settlement process. In determining whether the issues raised by the claim are justiciable, it is necessary to examine the substance of the declarations sought.
[47] Two of the documents in respect of which declarations are sought are closely linked to the Treaty settlement process, as they were in Ngāti Whatua Ōrākei Trust and the other Court of Appeal cases referred to above. A third is an integral part of the settlement with the Crown.
[48] The first two declarations sought are:
[49] Although the plaintiff does not identify the documents it claims to have a right to interpret, it is clear from the statement of claim as a whole that the plaintiff seeks those declarations in respect of the deed of mandate, the strategy document and the deed of settlement.
[50] In his submissions for the plaintiff, Mr Chambers sought to minimise the extent to which the Court was being invited to determine matters within the Crown’s exclusive purview and instead focussed on the issue of the validity of the whakapapa. He said the claim seeks to “question the validity of the whakapapa that was presented by the defendants [sic] as the basis for claiming to have a mandate covering all peoples of Aotea and receive a determination that corrects that inaccuracy.”
[51] As was the case in Ngāti Whātua Ōrākei Trust, the plaintiff has not shown how it has rights which have been affected by the alleged inaccuracy and which are capable of being adjudicated on by a court. Whether the whakapapa is correct or not, the definition of the claimant group has been accepted by the executive during its negotiations and, ultimately, that issue will be put to Parliament to determine. If Parliament decides to alter the definition of the claimant group, to correct a perceived error, or for any other reason, that is entirely a matter for Parliament. As Gault P said in Milroy v Attorney-General, “where the action challenged does not itself affect the rights of any persons and is undertaken in the course of policy formulation preparatory to the introduction to Parliament of legislation, the Courts will not intervene”.26
[52] The remaining declarations sought are directed to matters that are non- justiciable. The plaintiff seeks:
26 Milroy v Attorney-General [2005] NZAR 562 (CA) at [18].
[53] For the reasons stated in the cases, the courts cannot determine who may or may not be entitled to negotiate with the Crown. Nor can the courts make a determination about the allocation of money by the Crown. That also is a matter initially for the Executive and ultimately for Parliament. The effect of the declaration sought would be to attempt to fetter Parliament’s exclusive power to make the ultimate decision on how public monies are to be allocated as part of a settlement.
[54] A final consideration in respect of declarations D and E is that neither the defendants nor the trust board are the intended beneficiaries of settlement monies. A governance entity is proposed for that purpose. Whether that proposal is adopted will again be a matter for Parliament to determine. This is a further reason why declarations D and E cannot be made.
[55] For these reasons I am satisfied that the plaintiff’s claim is untenable and for that reason it is to be struck out.
[56] Two further arguments were advanced for the defendants. I have not taken them into account in coming to my conclusion that the claim should be struck out. But, because they were given some emphasis by or for Ms MacDonald, I will briefly note the arguments and my reasons why they are not relevant.
[57] Mr Andrew submitted that the issues raised by the statement of claim could be raised in the Waitangi Tribunal or before a parliamentary select committee. I cannot determine in this proceeding whether that is correct, but in any event it would be unnecessary to do so. The availability of those avenues to raise non-justiciable issues does not change the application of the principle of non-interference by the
courts – the issues raised by the plaintiff are non-justiciable whether they can be raised elsewhere or not.
[58] Ms MacDonald contended that, as a matter of fact, the group represented by the plaintiff are not excluded from the proposed settlement, and Mr Andrew made submissions in that regard by reference to the documents. I have already concluded, for the reasons stated, that the Court cannot adjudicate on the plaintiff’s contention that the whakapapa is incorrect, and that the group represented by the plaintiff has been excluded. The principles underpinning that conclusion apply equally to Ms MacDonald’s argument. It is not an argument that I have taken into account in reaching my conclusions on her strike out application.
Preservation orders
[59] For the following reasons the application for preservation orders must also be struck out. First, the application cannot stand with the substantive claim struck out. Second, the preservation orders cannot be made against the defendants, because they are not the intended beneficiaries. Third, the application is misconceived because there is no property to be preserved: no money has been paid by the Crown to any person or entity, because no settlement has been completed, and no money will be paid unless and until there is an Act of Parliament enabling payment.
Result
[60] The name of the trust board in the original intituling is amended to the name recorded in the intituling of this judgment.
[61] The plaintiff’s claim is struck out in its entirety.
[62] The plaintiff’s interlocutory application for preservation of property, dated 28 February 2017, is also struck out.
[63] The defendants are entitled to costs. If the parties are unable to agree on the quantum of costs payable by the plaintiff to the defendants, the following directions apply:
- (a) Any memorandum for the defendants on the question of costs is to be filed and served by 15 June 2018.
(b) Any memorandum in response for the plaintiff is to be filed and served by 29 June 2018.
(c) The memoranda are not to exceed 10 pages.
(d) The matter will be determined on the papers.
Woodhouse J
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