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High Court of New Zealand Decisions |
Last Updated: 14 September 2018
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
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CIV-2018-485-574
[2018] NZHC 2348 |
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BETWEEN
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FELICITY MARGARET KAHUKORE BAKER
Applicant
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AND
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THE WAITANGI TRIBUNAL
First Respondent
THE ATTORNEY-GENERAL
Second Respondent
THE WHAKATŌHEA PRE-SETTLEMENT CLAIMS TRUST
Third Respondent
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Hearing:
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5 September 2018
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Counsel:
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R N Zwaan for Applicant
No appearance for First Respondent
G M Gillies and E D Geach for Second Respondent D H Stone and M C Tukapua
for Third Respondent C M Linstead-Panoho for Mr Brown
T T R Williams for Ms Hillier T H Bennion for Mr Hollis
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Judgment:
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6 September 2018
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JUDGMENT OF CHURCHMAN J
[1] The applicant, Ms Baker, is a named claimant in Wai 2563, being a claim registered with the first respondent (the Waitangi Tribunal), detailing allegations of breach by the Crown of the principles of the Treaty of Waitangi that have prejudicially affected Te Ūpokorehe, one of the six main hapū that make up Whakatōhea, an iwi from the Eastern Bay of Plenty region.
BAKER v THE WAITANGI TRIBUNAL & ORS [2018] NZHC 2348 [6 September 2018]
[2] In her affidavit of 21 August 2018, Ms Baker says that she is authorised to give her evidence in these proceedings on behalf of the Te Ūpokorehe Treaty Claims Trust (TUTCT).
[3] In August 2004, representatives of Whakatōhea voted in support of a resolution to support a hapū-driven process to progress negotiations and the potential settlement of the Whakatōhea historical claims.
[4] In 2010, representatives of four out of the six hapū of Whakatōhea, not including Te Ūpokorehe and Ngai Tamahaua, formed the Tu Ake Collective. The third respondent, the Whakatōhea Pre-Settlement Claims Trust (the Trust), was established to seek a mandate from the Crown to enter into direct negotiations with the Crown to try and attain a settlement of all historical claims of Whakatōhea. TUTCT also sought a mandate but was unsuccessful.
[5] Voting on the Mandate took place between 6 May and 3 June 2016. Despite opposition from Te Ūpokorehe and Ngai Tamahaua, the Crown recognised the Trust’s Deed of Mandate in December 2016.
[6] On 31 May 2016, Ms Baker, on behalf of TUTCT, had applied to the Waitangi Tribunal for an urgent hearing on issues arising from the approval by the Crown of the Trust to settle the claims for Whakatōhea (the Mandate). A further 12 applications for an urgent inquiry were received in January and February 2017, with the inquiry being granted in July 2017.
[7] In November 2017, the first respondent (the Waitangi Tribunal), held a hearing of Ms Baker’s claims, as well as those of other parties who joined the proceedings, releasing its report on that inquiry on 17 April 2018 (the Report).1 The Report involved the exercise of a statutory power that is amenable to judicial review under the Judicial Review Procedure Act 2016 (JRPA) and/or common law.
[8] In the Report, the Waitangi Tribunal found that the Crown’s recognition of the mandate of the Trust was not fair, reasonable or made in good faith,2 and that the evidence relied upon by the Crown to assess support for the Mandate was both insufficient and unreliable.3 The Tribunal found that hapū rangatiratanga was not appropriately recognised in the way the Mandate vote was structured, and that the withdrawal mechanism under the Deed of Mandate was not fair and needed to be corrected.4 It found that the Crown ought not to have recognised the Mandate when it did and that continued recognition of the Mandate was problematic.5
[9] However, rather than recommending a halt to the current negotiations and a re- run of the mandate process, the Tribunal determined that it would be better to provide Whakatōhea with an opportunity to decide how they wished to proceed.6 The Report recommended that certain steps be taken concerning continued negotiations between the Crown and the Trust. Those recommendations included a vote on a hapū by hapū basis to determine what support there is (if any) for continued negotiations, whether the mandate process should be recommenced and whether the Waitangi Tribunal should carry out an inquiry into the historical grievances of Whakatōhea.7
[10] Although leave was reserved to the parties to apply for further directions as to the implementation or clarification of the recommendations, all of the recommendations themselves were clearly set out in the decision.
[11] In the period since the recommendation were made, the Crown, the Trust and other inquiry participants have received further guidance from the Tribunal on the detail of how that vote should occur. The Trust has made preparations for the vote to occur and the Crown, in accordance with the Tribunal’s recommendations, has agreed to provide resources to help the vote proceed under the supervision of an independent returning officer. The vote is expected to occur at the start of October 2018.
2 At 85.
3 At 88.
4 At 91.
5 At 92.
6 At 96.
7 At 97.
The challenge
[12] On 27 July 2018, some three months after the Tribunal’s decision, Ms Baker applied for judicial review of the Decision on the following grounds:
(a) that the Tribunal made an error of law in that its recommendation of a further vote by iwi, including Ūpokorehe members, was outside its jurisdiction under s 6(3) of the Treaty of Waitangi Act 1975 (the TWA);
(b) that the Tribunal took into account the following irrelevant considerations in making its recommendations:
(i) the Agreement in Principle and the redress offered in the Agreement in Principle to Ūpokorehe and Whakatōhea, including whether the Crown would or could maintain the baseline redress offered in the Agreement in Principle. These matters were outside the scope of the inquiry which was concerned solely with whether the Mandate had been fairly approved, and the Agreement in Principle followed from the approval of the Mandate which the Tribunal found had been recognised by the Crown in breach of Treaty principles;
(ii) the degree of support for the Mandate from Ūpokorehe and Whakatōhea, which it could not do because it had already found that the Crown had breached Treaty principles in recognising that mandate.
(c) that the Tribunal failed to take into account relevant considerations:
(i) it failed to consider that its recommendatory power under s 6(3) “to the Crown that action be taken” is limited to remedial actions by the Crown where the Crown has breached Treaty principles and recommending a further vote by the iwi affected by the Crown breach was not such an action;
(ii) given its finding that the Mandate of the pre-settlement trust was improperly recognised by the Crown, the Tribunal failed to consider that a fresh vote of the iwi on whether to support that very same trust:
(iii) having found that the withdrawal mechanism under the Deed of Mandate which Ūpokorehe and other hapū had complained about “is not fair and needs to be corrected”, nevertheless recommended a vote on that same deed which would not remedy that unfairness.
(d) that the Tribunal acted unreasonably to the point that no reasonable authority could have made the decision it made:
(i) it recommended a vote on the Mandate which it had already found had been recognised by the Crown in breach of the principles of the Treaty of Waitangi;
(ii) it made no recommendation of any Crown action to remedy the Crown breach in recognising the mandate;
(iii) it made no recommendation for remedy of the withdrawal mechanism which it had found to be in breach of Treaty principles.
[13] On her judicial review application, Ms Baker seeks relief in the form of a declaration that the Recommendations Section of The Whakatōhea Mandate Inquiry
Report is invalid, an order quashing that section, and an order directing the Waitangi Tribunal to reconvene to reconsider the Recommendations and to take into account the errors of law and relevant considerations as found by the Court.
The application
[14] On 12 August 2018, some four months after the Tribunal’s decision, Ms Baker applied for the following interim orders:
(a) that the Waitangi Tribunal cease issuing directions in relation to the voting process;
(b) that the Attorney-General not provide funding for the voting process until completion of the judicial review proceedings; and
(c) that the Attorney-General not take any other associated steps to implement the voting process until the completion of these judicial review proceedings.
[15] The grounds on which each order is sought are as follows:
(a) the interim orders are necessary to protect Ms Baker’s position as, if the voting process is carried out, the “remedy” that the Waitangi Tribunal has recommended will be complete. This will overtake Ms Baker’s claim in these proceedings to have the recommendation section of the Waitangi Tribunal’s Report quashed and reconsidered. In addition, the Attorney-General has indicated that he will be bound by the outcome of the voting process;
(b) Ms Baker has a strong case as set out in her statement of claim dated 27 July 2018;
(c) there is minimal detriment to the parties if the voting process is simply delayed;
(d) the overall justice of the situation requires that the voting process be delayed;
(e) with regard to the two declarations pursuant to s 15(3)(b)(i) of the JRPA, the voting process is consequential on the Attorney-General’s exercise of the statutory power. The voting process is the primary recommendation as provided by the Waitangi Tribunal that is the subject of these judicial review proceedings. As part of that recommendation, it was specifically recommended that the Attorney- General meet the reasonable costs of implementing the voting process; and
(f) the grounds set out in Ms Baker’s affidavit.
[16] The Trust was not a party to the proceedings originally filed. It was subsequently added as the third respondent but no specific relief was sought in respect of it by the applicant.
[17] In a synopsis of argument filed by Mr Williams on behalf of an intervenor, Ms Hillier, Mr Williams sought:
... orders from this Court that the First, Second and Third Respondents are prevented from taking any steps whatsoever in respect of the Voting Process including, but not limited to, advertising, promoting, displaying, offering the public material, appearing on television or radio in respect of the Voting Process.
[18] Ms Zwaan made oral application during the course of the hearing to amend the application so as to incorporate the relief set out in paragraph 3 of the Mr William’s synopsis.
Relevant law
[19] Section 15 of the JRPA provides that the court may make certain interim orders if it is necessary in the court’s opinion to do so to preserve the applicant’s position.
[20] Principles applicable to the grant of an interim injunction were once adopted on applications for interim relief in judicial review.8 With an interim injunction, the threshold is whether there is a serious question to be tried. If there is, the Court must then consider where the balance of convenience lies before finally assessing the overall justice of the case.9
[21] However, a different approach has now been adopted for interim orders in judicial review proceedings. The Court of Appeal in Carlton & United Breweries Ltd v Minister of Customs said that while there should be no:10
... general rule that a prima facie case is necessary before interim relief can be granted... the Court must be satisfied that the order sought is necessary to preserve the position of the applicant for interim relief – which must mean reasonably necessary.
[22] This flexible approach prescribed by the Court of Appeal has since been widely adopted, with the High Court saying:11
Amongst the circumstances of a case that the Court often considers in respect of s 8 [now s 15] are the strengths and weaknesses of the plaintiff’s case, the competing advantages and detriments to the parties, the status quo, the balance of convenience, public repercussions as well as private, and the overall justice position.
[23] The statutory threshold of necessity to preserve the applicant’s position must be met before any of the discretionary factors may be taken into account, with the purpose of the test being to give a right of protection on an interim basis to an applicant who may otherwise be unfairly prejudiced by reason of a delay in obtaining a final hearing.12 If no arguable or justiciable issue is raised, there is no position to preserve.13
[24] The fact that an appeal may be rendered nugatory without an interim order is not necessarily decisive, and the court can take into account other factors in exercising
8 Andrew Beck and others McGechan on Procedure (online ed, Brookers) at [JR15.02(1)].
10 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 at 430.
12 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC).
13 Whale Watch Kaikoura Ltd v Transport Accident Investigation Commission [1997] 3 NZLR 55.
its discretion which may weigh against the applicant.14 Counsel were broadly agreed as to the legal tests to be applied by the Court in assessing this interim application.
Are the interim orders reasonably necessary to preserve Ms Baker’s position?
[25] Counsel for Ms Baker, Ms Zwaan, submits that, if the interim injunction is not granted and the voting process proceeds as planned, the subject matter of the judicial review proceedings will be nullified. She submits that, as the Tribunal has made a recommendation that is outside its jurisdiction to make, there is therefore an arguable case to be heard. Ms Zwaan submits that, while there is little detriment to the respondents if the interim orders are granted since the vote has already been delayed, there is an advantage to Ms Baker as they will protect her position until the judicial review proceedings have been heard and the Court has issued its judgment.
[26] In relation to the test of the Court being satisfied that the order was sought to preserve the position of the applicant for interim relief, Ms Zwaan identified the detriment of TUTCT having to incur expenditure in connection with the vote.
[27] However, the Crown has provided substantial funding to assist the various hapū of Te Whakatōhea to facilitate participation in the voting process. The amount allocated to Te Ūpokorehe is $7,538.46.
[28] I was advised by Ms Zwaan that the cost of a hui is approximately $1,000. Although Ms Zwaan submitted that the funding made available by the Crown would still leave Te Ūpokorehe out of pocket, there was no information before the Court as to why that should be so, or how much they might be out of pocket. In the circumstances, I am not able to accept that, in the absence of the interim order sought, Te Ūpokorehe will incur unrecoverable expenses or that the sum of $7,538.46 allocated to them is, in the circumstances, unreasonable or insufficient.
[29] Counsel for one of the intervenors, Mr Williams, also submits that if the interim orders are not granted and the voting process proceeds as planned, the judicial review proceedings and substantive application will be rendered nugatory. He further submits
14 Abel Fisheries Ltd v Stuart [1997] 2 NZLR 87 (HC).
that if the orders sought are not made, any action taken by the Trust will prejudice both Ms Baker and the intervener’s right to a fair hearing, such right being a fundamental principle of natural justice.
[30] Mr Williams developed the argument on the basis that if a vote is held prior to the substantive hearing of the judicial review process, the Court, in considering the judiciary review claim, may be influenced by the outcome of that vote if the proposed questions are answered in a way that that favours a conclusion that the Trust has the majority support of Whakatōhea as a whole.
[31] I do not accept the argument that if the Court concludes that the Tribunal has acted unlawfully it will be constrained in saying that irrespective of the outcome of any voting process.
[32] Mr Williams and Ms Linstead-Panoho also developed an argument that, in circumstances of this case, a vote may not genuinely reflect the actual views of the members of Whakatōhea given that some may feel compelled to continue with the mandate to the Trust if voting against that might potentially result in the loss of what has been agreed to in the settlement in principle. They point to the fact that the Crown has not guaranteed to leave the cash sum “on the table”, nor agreed to pay commercial rates of interest on that sum. However, there is nothing unusual about this. Iwi and their representatives often have to make the choice whether they will accept an offer from the Crown or reject it. They do so knowing that there is always at least some risk that if an offer is rejected, there is a risk that the same or a more beneficial offer will not necessarily be forthcoming.
[33] The fact that the Crown has not guaranteed that the terms of the current agreement in principle will be available indefinitely does not mean that the vote is an improper or unreasonable way of ascertaining the views of the majority of Whakatōhea.
[34] Ms Linstead-Panoho pointed out that beneficiaries of the Whakapaupākihi No. 2 Trust did not all whakapapa to Whakatōhea and those who did not were disenfranchised by not being participants in the vote. However, the answer to that
submission is that any settlement with Whakatōhea will settle only Whakatōhea claims, and those beneficiaries of the Whakapaupākihi No. 2 Trust who do not whakapapa to Whakatōhea will not have their claims extinguished by any settlement.
[35] Mr Bennion, on behalf of the intervener, Mr Hollis, did not submit that the Tribunal recommendations were per se ultra vires but said that when none of the applicants had sought recommendations of the type made, this resulted in the recommendations becoming ultra vires. He also submitted that the irreparable disadvantage that would be suffered should the re-voting process take place was an exacerbation of the deep divisions within Whakatōhea. He pointed out that the Tribunal was concerned with the evident divisions within Whakatōhea and had said:15
On the other hand, to simply push ahead and conclude negotiation risks entrenching even further the deep divisions within Whakatōhea that we witnessed at the hearings. The resulting settlement would be constructed upon questionable foundations and the settlement’s objectives put at risk.
[36] There is no doubt that there are divisions between the various hapū of Whakatōhea and that there is a view among a number of members of Te Ūpokorehe that it is an iwi in its own right, and should therefore be able to negotiate its own settlement separate from the negotiations being undertaken by the Trust.
[37] These divisions are clearly of longstanding and are already entrenched. It is difficult to see how the holding of the vote is likely to alter the opposing views one way or the other. It is not so much the fact of a vote but the potential consequences of the vote that the interveners are concerned about. As already mentioned, if the Court ultimately concludes that the Tribunal acted unlawfully in making its recommendations, then the outcome of any vote will be irrelevant to whatever remedy the Court might direct. I do not accept that the holding of the vote will make the divisions between the hapū significantly worse than they already are.
[38] The status quo is that the voting will not open until 1 October 2018, but Ms Baker is seeking to stop certain preliminary matters that will happen between 31 August 2018 and 28 September 2018, prior to the vote, including the finalisation
15 Tribunal Decision at x.
of the explanatory note, advertising in papers, and private notices being sent out to the voters.
[39] I have concluded that the vote will not affect the legal or factual position of Ms Baker or the intervenors in relation to the substantive judicial review proceeding. The vote occurring will not affect their stance that the Tribunal has acted beyond its jurisdiction in recommending the vote take place and they will remain free to have the Court determine that, as well as remaining free to participate in the political processes surrounding the forthcoming vote where the hapū of Whakatōhea iwi will be asked to indicate their preferred approach to settling historical claims against the Crown. If judicial review is granted, the Waitangi Tribunal would be directed to reconsider what recommendations it might make in relation to the Mandate and whether or not a vote has occurred in the meantime would not preclude the Tribunal from considering and making new and different recommendations.
Strength of claim
[40] The strength of the applicant’s substantive claim was agreed by the parties to be a matter relevant to the grant of interim relief. Ms Gillies, for the Crown, submitted that the claim was weak. She pointed out that the granting of relief under the TWA is discretionary and the Tribunal has a broad jurisdiction to make recommendations to the Crown on what should occur to compensate for or remove prejudice found to exist or to prevent others from being similarly affected. She also made the point that all of the Tribunal’s recommendations were recommendations for Crown action.16 Although she acknowledged that the voting process was to be facilitated by the Trust, she submitted that the specific recommendations were for Crown action in relation to that voting process such as to meet the reasonable costs of implementing the process, including funding the appointment of a suitably independent returning officer, and updating of the Whakatōhea Māori Trust Board Register in a timely way.
[41] She also submitted that the recommendations had a clear and sufficient relationship with the prejudice that the Tribunal had found existed. She described the Tribunal’s finding as being that the Crown’s recognition of a mandate was made
16 Treaty of Waitangi Act 1975, s 6(3)-(4).
without knowing where each hapū of Whakatōhea stood on the issue. She submitted that the Tribunal’s recommendation for a further vote, to be facilitated by funding from the Crown, was directed at the prejudice identified by the Tribunal. She also submitted that the fact that in order to implement the Tribunal’s recommendations, actions were required from non-Crown actors, did not detract from their character as recommendations directed at the Crown for Crown action.
Analysis
[42] While the applicant’s substantive case might not be strong, it is at least arguable. I would not decline the relief sought simply on the basis of the lack of strength of the case.
[43] The position of the Trust, as third respondent, is different to the first and second respondents. None of the applicants had filed a statement of claim seeking relief against the third respondent, and no relief was sought by the applicant in relation to the interim orders.
[44] Mr Stone, for the Trust, opposed the oral application by Ms Zwaan to amend the pleading seeking relief. I invited him to obtain instructions over the lunch adjournment but, in the limited time available, he was not able to obtain proper instructions. He opposed the Court granting any relief against the Trust and submitted that, in relation to proceedings arising out of a claim of errors by the Waitangi Tribunal and breaches by the Crown, the Court was unable to issue relief against a private third party. I do not accept that latter submission and, without having to decide the matter in this case, it is my view that where a third party is acting at the instigation of the Crown in such a situation, it is arguable there may be circumstances where an injunction is necessary to preserve rights pending a substantive hearing.
[45] However, given the fact that no relief was sought against the Trust until the 11th hour, and in light of Mr Stone’s difficulty obtaining full instructions, I am not prepared to grant the application for leave to seek the relief belatedly sought against the Trust.
[46] In assessing where the balance of convenience lies, any delay, and the consequences of it, are relevant. Here, the delay between the Tribunal’s decision and the filing of the statement of claim seeking substantive relief for some three months, and the delay between the decision and the application for interim relief for some four months.
[47] I do not accept the argument advanced by Ms Zwaan to the effect that it was only when the Tribunal issued its directions about being functus officio that the applicants apprehended the need to challenge the Tribunal’s decision.
[48] The recommendations of the Tribunal as to the Crown facilitating, by way of provision of funding, a further vote, were clearly set out in the decision itself. The only thing that leave was reserved for was in relation to the implementation or clarification of those recommendations.
[49] The Crown has provided substantial sums to the hapū of Whakatōhea to facilitate the voting and has also incurred expenditure in relation to the appointment of Hon Rhys Harrison QC in the checking of the Whakatōhea register. If the vote is unable to proceed, then this expenditure or at least some of it, will be wasted. Mr Stone also made the point that the costs of the Trust’s continued existence are ongoing and that any significant delay in the time that the Trust is required to maintain itself is a potential detrimental effect. I regard this as a less significant factor given the overall life span of the Trust and the relatively short period of time involved.
[50] However, I accept that there has been not insignificant expenditure, funded by the Crown, in the period of time that elapsed between the Tribunal’s decision and the application for interim relief. If the vote is not able to proceed, that expenditure will be lost.
[51] A further relevant factor to weigh in the balance of convenience is the potential consequences of a delayed or deferred conclusion to the settlement process as a result the issue of injunction.
[52] The Tribunal was alive to the potential prejudice to all of Whakatōhea in terms of a delayed or deferred settlement. Avoidance of that prejudice seems to have been a significant factor in the Tribunal making recommendations as to how the prejudice that it had identified could be ameliorated.
[53] There can be no guarantee as to when the substantive application will be determined and a decision given on it. It is conceivable that could be several months hence. Orders of the type sought could conceivably therefore delay ultimate settlement by that amount of time. While not a major matter, such delay is a factor to be weighed in assessing the balance of convenience.
Conclusion
[54] The threshold for interim orders in the context of judicial review is higher than that for interim injunctions and, while it does not necessarily require a prima facie case, the order sought must be reasonably necessary to preserve the applicant’s position.
[55] The most critical issue in this case is whether the orders sought are reasonably necessary to preserve the applicant’s position.
[56] For the reasons set out above, I have come to the conclusion that the applicant and interveners have not been able to point to any irreparable harm that will occur if the interim orders sought are not granted. That is ultimately the decisive factor in relation to this application.
[57] Accordingly, the application for interim relief is dismissed.
[58] I invite the parties to settle costs themselves. However, in the absence of an agreement:
(a) the Crown is to file and serve a synopsis within 14 days of the date of this decision;
(b) the third respondent to file and serve a synopsis within five days of receipt of the Crown synopsis; and
(c) the applicant and interveners to file and serve their synopses within 10 days of receipt of the third respondent’s synopsis.
Churchman J
Solicitors:
Zwaan Legal for Applicant
Crown Law, Wellington for Second Respondent Kahui Legal for Third Respondent
Wackrow Williams & Davies for Mr Brown and Ms Hillier Bennion Law for Mr Hollis
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