Hata v Attorney-General [2023] NZHC 1255 (25 May 2023)

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UNDER	Part 30 of the High Court Rules 2016 and the inherent jurisdiction of the High Court
IN THE MATTER	of the proposed signing of a deed of settlement of historical Treaty of Waitangi and other claims binding ngā hapū o Te Whakatōhea
BETWEEN	TE RINGAHUIA HATA and TE RUA ROGER RAKURAKU Applicants
AND	THE ATTORNEY-GENERAL First Respondent GRAEME RIESTERER, ANAU APANUI, JASON KUREI, ERIN MOORE, DAVE NGATAI, AUDREY GRACE-RENATA, MURIWAI KAHAKI, BRUCE PUKEPUKE, KEITA HUDSON, MANA PIRIHI, TAHU TAIA, PAREHUIA MAFI and ROBERT EDWARDS Second Respondents ROBERT EDWARDS, TAHU TAIA, BRUCE PUKEPUKE, KATE HUDSON, VAUGHAN PAYNE, GRAEME RIESTERER, ANAU APANUI and ERIN MOORE Third Respondents
AND	NGĀTI RUATAKENGA Intervener WAI 864 CLAIMANTS Intervener NGĀI TAMAHAUA HAPŪ COMMITTEE Intervener

Hearing:	24 May 2023
Appearances:	J E Hodder KC amd S W H Fletcher for the Applicants C Linkhorn and D W Hunt for the First Respondent J M Pou for the Second Respondents C R Carruthers KC for the Third Respondents K S Feint KC and M S Smith for Ngāti Ruatakenga J L Cole for Wai 864 Claimants R J Clark for Ngāi Tamahaua Hapu Committee B R Lyall and H L B Swedlund for Te Upokorehe Treaty Claims Trust
Judgment:	25 May 2023

[1] By application dated 12 May 2023 the applicants, who are acting on behalf of Ngāti Irapuaia o Waioweka hapū (Ngāti Ira), a hapū of Whakatōhea, apply for interim orders preventing the Crown and the Whakatōhea Pre-Settlement Claims Trust (WPCT) from entering a Deed of Settlement settling Whakatōhea’s Treaty grievances. They seek orders declaring:

[2] The application is supported by other hapū of Te Whakatōhea – Ngāti Ruatakenga, Ngāi Tamahaua and Te Upokorehe. The application is opposed by the Crown, WPCT and the Trustees of Te Tāwharau o Whakatōhea.

[3] The signing of the Settlement Deed is scheduled for this Saturday, 27 May being the 183rd anniversary of the signing of Te Tiriti o Waitangi by Whakatōhea and the Crown. The signing will involve the settlement of claims that have been pursued for over 30 years.

[4] The application was first addressed by Grice J on 15 May who, after hearing from the parties, set the application down for hearing on 24 May in accordance with the directions that she gave. The hearing proceeded before me yesterday for the full day, and I indicated at the end of the hearing that I would issue my decision in writing today.

[5] For reasons I explain below I have concluded that the application for interim orders should be declined. As I indicated at the conclusion of the hearing, delivering judgments on applications of this kind involves a balance between delivering a judgment as soon as practicable given the urgency that is involved, and respecting the nature and extent of the matters that have been advanced by all parties, and the importance of the issues. By its nature this judgment is less elaborate than it would have been had time enabled me to assess all points that have been raised by counsel in the context of issues that have a rich history. What I seek to do is capture the essence of the Court’s reasons for declining the application. If I have not expressly addressed a matter that is thought to be important by those who are involved no disrespect is intended.

[6] Whakatōhea have sought remedies for Crown breaches of the Treaty over many years. The Crown’s breaches include the invasion of Whakatōhea territory and the associated confiscations in the 1860s. It is not possible in this judgment to do justice to that background. I confine myself to a very brief summary of the more recent events.

[7] The Crown and Whakatōhea entered a settlement of Treaty claims in 1996, but due to different views within Whakatōhea about the settlement the Deed of Settlement was withdrawn in 1998 before it was voted upon. This resulted in an internal assessment on how the different views within the iwi should be addressed, including in relation to the issues of tikanga for the hapū. In 2007 a process for negotiations was adopted by the hapū. It was set out in a report entitled Te Ara Tono Mo Nga Kereme o Te Whakatōhea: Final Whakatōhea Raupatu Process Report (Te Ara Tono).

[8] A process was then followed to determine who would be mandated to undertake negotiations on behalf of Whakatōhea, and in December 2016 WPCT was so recognised and terms of the negotiations were signed.

[9] The Waitangi Tribunal then engaged in an inquiry into the process that the Crown had decided to follow. In a report dated 12 April 2018 the Tribunal concluded that the Crown processes were in breach of the Treaty, particularly by limiting the approval by the members of Whakatōhea to the mandate by using a register of members maintained by the Whakatōhea Māori Trust Board. The Tribunal said:¹

We find that, by relying on the Trust Board register in May 2016 for the purposes of the mandate vote, the Crown breached the Treaty principle of active protection. It failed to properly inform itself as to the adequacy of the register for the purposes of the vote and to ensure that steps were taken to update the register before a mandate vote was taken.

We find that the Crown did not sufficiently inform itself of the true levels of support and opposition to the Pre-settlement Trust mandate prior to recognition and it thereby breached the Treaty principle of active protection.

We find that the Crown failed to act reasonably to ensure an adequate means of voting on the mandate on a hapū basis. This was in contravention of what it knew was the tikanga endorsed by Whakatōhea in 2007. In failing to appropriately recognise hapū rangatiratanga in this way the Crown breached the principle of active protection.

We find that the Crown failed to act reasonably when it approved a mandate that contains a withdrawal mechanism it acknowledges to be unfair. In failing to appropriately recognise hapū rangatiratanga in this way, the Crown breached the Treaty principle of active protection.

[10] This caused the Crown to pause the negotiations. In October 2018, however, Whakatōhea showed support for continuing negotiations. In June 2019 the Tribunal

[11] In September 2019 the Minister for Treaty negotiations and the Minister for Māori Development agreed to resume negotiations between the Crown and WPCT. Following those negotiations, an overall settlement package was agreed upon.

[12] In March 2021 Cabinet approved a package involving approximately $100 million value, other commercial and cultural redress, and an apology. Somewhat unusually the settlement package contemplated that the Tribunal would be able to continue with its inquiry into the Treaty breaches notwithstanding the settlement, albeit without jurisdiction to make recommendations.

[13] In April 2021 the Ministers approved the process that would be followed for the ratification of the settlement by Whakatōhea members. The Waitangi Tribunal then engaged in a further investigation and report into the Crown processes. It released The Priority Report on the Whakatōhea Settlement Process on 10 December 2021.² The Tribunal concluded that the Crown’s approach still breached the Treaty principles in two respects. They are important, and I will return to them below, but by way of summary it found:

[14] The Crown did not, however, fully accept these recommendations and it proceeded to push on without making the recommended changes. On 23 December 2021 the Crown and WPCT then initialled the Whakatōhea Deed of Settlement.

[15] One of the hapū, Te Upokorehe had sought to withdraw its mandate, and after following the (unamended) processes for such a withdrawal during 2022. Te Upokorehe’s withdrawal was not agreed to by the iwi in a vote that took place in August 2022.

[16] In October 2022 Whakatōhea members then voted on the proposals associated with the entry of the Deed of Settlement. Approximately two thirds of Whakatōhea members voted in favour of entry of the Deed. Of the six hapū a majority of members from four clearly voted in favour. Only 42 per cent of Ngāti Ira voters voted in favour. Only just over 50 per cent of Te Upokorehe voted in favour. The other hapū voted in favour in a reasonably clear way.

[17] In February 2023 the Ministers agreed to proceed with signing the Deed of Settlement. Notification was given at the end of February that that was the case.

[18] As indicated the date for the signing of the Deed of Settlement has been set for this Saturday 27 May, the 183^rdanniversary of Whakatōhea’s signing of the Treaty. On Friday 12 May the applicants filed the application for orders preventing this step from being taken.

[19] The applicants seek interim relief pending determination of their judicial review challenge of a series of decisions associated with the above background. The challenge is not advanced under the Judicial Review Procedure Act 2016, and the application for interim relief is not made under s 15 of that Act. Rather the application is brought in reliance on the High Court’s inherent judicial review jurisdiction recognised by Part 30 of the High Court Rules 2016.

[20] Part 30 applies for applications for an extraordinary remedy corresponding to the writs of mandamus, prohibition, certiorari, declaration and other similar remedies. For reasons I have previously addressed in The Parents of Courtney v The Principal it is at least arguable that judicial review proceedings challenging statutory powers of decision as defined by the Judicial Review Procedure Act must be brought under the procedures contemplated by that Act, with Part 30 reserved for challenges for non-

(1) When an application is made for an extraordinary remedy under this Part, the court may make an interim order on whatever terms and conditions the court thinks just.

[22] There is some authority for the view that the test for interim relief under r 30.4 is not the same as under s 15 of the Judicial Review Procedure Act. For the reasons I have previously expressed it seems to me to be desirable that the approach to interim relief should be largely the same.⁴I consider the appropriate test is that confirmed by the Supreme Court in Minister of Fisheries v Antons Trawling in the following terms:⁵

Before a Court can make an interim order ... it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.

[23] Here the application seeks interim declarations, but I consider that the Court could grant interim orders using the formulation contemplated by s 15(3) of the Judicial Review Procedure Act, and I consider that it would be appropriate to do so if a proper basis for interim relief were made out.

[24] Mr Linkhorn for the Attorney-General argued that the High Court had no jurisdiction to make interim declarations of the kind sought in the application. I did not hear full argument on that point, but I doubt that it is correct. The decision in Coumat Limited v Registrar General of Land relied upon was not a judicial review challenge, and did not concern r 30.4.⁶The terms of r 30.4 are plain, and I do not read

⁵Minister of Fisheries v Antons Trawling [2007] NZSC 101; (2007) 18 PRNZ 754 (SC) at [3] (footnote omitted).

[25] At their heart the applicants’ contentions are that the decisions of the Crown and WPCT to enter a Deed of Settlement which will settle all relevant Treaty claims, including those of Ngāti Ira, would be unlawful. That is because the entry of such a settlement would be inconsistent with its tikanga. Two aspects of tikanga are relied upon:

[26] The essential point is that the approach that has been adopted, and intended to be brought to fruition through the signing of the Deed, is inconsistent with tikanga and it is accordingly unlawful. Ngāti Ira do not agree with the settlement, and the entry of the Deed is inconsistent with their rangatiratanga. The applicants seek interim relief preventing the signing of the Deed pending their judicial review challenge to the legality of the decisions. They say that the entry of the Deed will prevent them from being able to obtain a remedy for this unlawful behaviour, and the Court ought therefore to grant interim relief.

[27] For three closely related reasons I do not accept these arguments. By way of summary:

[29] The test for interim relief enables the Court to consider all the circumstances of the case, including the apparent strengths or weaknesses of the claim for relief. In the present context, where the applicant is seeking an order to prevent a historic settlement being signed, it seems to me that a strong case would need to be demonstrated.

[30] The applicants argue that the entry of the Deed of Settlement is fundamentally inconsistent with Ngāti Ira’s tikanga, and that it is accordingly unlawful. Reliance is placed on the evidence of Dr Te Riaki Amomo and Te Rua Rakuraku. Their evidence

[31] I do not doubt this evidence, and recognise the respect that is due to these witnesses. But establishing that a particular course of conduct is not consistent with the tikanga of a hapū does not establish illegality. How tikanga influences the legality of particular decisions under challenge is an important question. As explained by Glazebrook J in Ellis v R:⁷

In some cases, tikanga and its principles may be controlling: for example, where Treaty principles and/or tikanga have been incorporated into statute in a manner that makes them so, or where the factual context justifies it. In other cases, tikanga principles or values may be relevant considerations alongside other relevant factors. Tikanga may be relevant to explain the social and cultural framework for the actions of Māori parties. In still other cases tikanga principles and values may have an influence on the development of the common law. They can also provide a new vocabulary or new way of thinking about new concepts of law or a new intellectual framework for those concepts.

[32] Here the context is the conduct by the Crown in entering settlement discussion processes, and then a settlement with the particular iwi. How do principles of tikanga influence or control the Crown’s decision-making powers in that context?

[33] The Crown is not exercising statutory powers. But I accept that the Crown’s conduct can be challenged by judicial review because it is exercising important public functions. Its conduct in this respect is controlled by the law. In particular it is constrained by the principles of the Treaty. Here we have the advantage of two reports of the Waitangi Tribunal who have carefully considered how the principles of the Treaty control the Crown’s conduct in relation to the settlement processes. The key Treaty principle is that of active protection of rangatiratanga. But this duty does not mean that the tikanga of each hapū is binding on the Crown.

[34] This is reflected in the conclusions reached by the Tribunal about the processes the Crown intended to follow. In the Priority Report the Tribunal concluded that the processes the Crown were following involved Treaty breaches in the two respects that

On the question of whether the withdrawal mechanism as it currently stands provides appropriately for hapū rangatiratanga, our finding is that the Crown breached the principles of active protection when it decided in 2019 not to require amendments that would make the mechanism more reflective of hapū rangatiratanga. In particular, the Crown failed to require an amendment to the current provisions for an iwi-wide vote, which is a key decision point in the withdrawal process, so as to ensure that the vote will be conducted on a hapū basis. Such an amendment would be essential for a process which appropriately reflects hapū rangatiratanga.

[35] The changes were only required to make the processes “more reflective” of hapū rangatiratanga. As this passage contemplates the iwi as a whole would still need to vote on the proposed withdrawal by such a hapū. The Tribunal found that these processes needed to be adjusted to greater reflect hapū rangatiratanga, but this still contemplated the ultimate vote would be made by the iwi as a whole. This is inconsistent with the applicants’ case based on hapū tikanga.

[36] Similarly, with respect to the ratification process, the Tribunal did not find that it was necessary for each hapū to agree to the settlement. It concluded that greater recognition of traditional processes, and in particular the hui-ā-hapū processes, needed to be part of the ratification process, and needed to take place before the iwi-wide vote so that it would inform that vote. But that proceeded on the basis that an iwi-wide vote would still be necessary. This would be achieved by proceeding with a hui-ā- hapū process first, and then the iwi-wide vote. As summarised by Judge Doogan:⁹

... The Crown’s requirement of universal participation in the ratification vote will be met, and has been accorded due respect by the Māori Treaty partner, but the tikanga and traditional decision-making processes of the Māori Treaty partner must also be respected by the Crown. This is especially so when the Crown’s Treaty obligation to actively protect hapū rangatiratanga is taken into account. The option of hui-ā- hapū followed by iwi confirmation was the preferred model for ratification in ‘Te Ara Tono’, the settlement process

document developed by the hapū and approved by Whakatōhea in 2007. The claimants argued in our inquiry that the two models of decision-making, hui- ā- hapū and an iwi-wide postal vote (with hapū affiliation recorded) are not mutually exclusive. We agree. The Crown has decided to accept a ratification process that excludes the traditional process by which decisions were made on the marae in discussion with, and guided by, kaumātua and kuia. Our finding is that the Crown’s decision is inconsistent with the principle of active protection of hapū rangatiratanga.

Our recommendation is that the Crown require a further amendment to the ratification strategy so as to provide for hui-ā- hapū after the initialling of the deed but prior to the ratification information hui and the hapū postal vote. This will enable the resolutions of hui-ā- hapū, made in accordance with tikanga of the hapū, to be circulated among all members of Whakatōhea, who will then have the guidance of the ahi kā before they vote.

[37] Again that would provide “guidance” for the iwi vote. This involves balancing the rangatiratanga of the hapū with other considerations. Those other considerations include the rangatiratanga of the other hapū and also the whanaungatanga of the iwi as a whole. That is recognised in the Te Ara Tono Report. But it also arises because of the interests of the Crown as Treaty partner. The Treaty involves the kawanatanga of the Crown as well as the rangatiratanga of Māori. This balancing was explained by the Tribunal in the following way:¹⁰

It is important to note that ‘Te Ara Tono’ interprets how Whakatōhea tikanga should be applied alongside Crown standards for Treaty settlement negotiations ; that is, both matter and both are used in ‘Te Ara Tono’, because it was recognised that Whakatōhea decision-making in the context of negotiations would need to reflect hapū rangatiratanga while also satisfying the Crown that a durable settlement was being reached through transparent, well-informed, and inclusive decision-making processes. This is important because ‘Te Ara Tono’ should not be read as a statement of how Whakatōhea makes internal decisions ; rather, it provides models of decision-making that best fit Whakatōhea tikanga and Crown requirements for a durable settlement (see section 3.2 for the details). The authors of ‘Te Ara Tono’ saw that a hapū decision made by hapū on the marae, for example, might not be sufficiently inclusive to satisfy the Crown’s requirements in some (not all) of the decisions to be made in the negotiations, and therefore Whakatōhea tikanga would have to adapt in its application to those negotiations. This is not surprising, perhaps, and the decision-making models in ‘Te Ara Tono’ were arrived at through a process of years-long debate and consultation among Whakatōhea hapū before being adopted formally at a hui-ā-iwi in 2007. We discuss this further in the ratification section below.

[38] So it is not simply a matter of identifying the relevant tikanga, contending that that tikanga must be accepted if the rangatiratanga of the hapū is to be respected, and

[39] Ms Feint KC argued that the hapū was the foundation unit of Māori society, and that the rangatiratanga of hapū must be decisive. She said that the greater role of iwi was a more modern phenomena, and that it should not supplant the role of hapū. But as Mr Pou submitted the iwi reflects whanaungatanga and the interconnectedness of the hapū. Moreover the interests of the Crown, and its ability to engage in Treaty settlement processes are relevant. In the end the principles of the Treaty involve a balancing of these considerations.

[40] For these reasons I conclude that the case advanced by the applicants is not a strong one. Indeed given the findings of the Tribunal I consider the claim to be weak. The way in which tikanga influences the legal obligations of the Crown is nuanced, and involves a balancing of the interests of the other hapū, the iwi as a whole, and the Crown. It is through that more complex assessment that the content of the duty of the Crown to actively protect rangatiratanga is identified. The applicants can still contend that the Tribunal is wrong and advance a judicial review claim on that basis. But given the expertise of the Tribunal, and its persuasive reasoning, such a challenge does not appear to be a strong one.

[41] That is not the end of the analysis, however. That is because the Tribunal has found that the Crown has breached Treaty principles by its proposed procedures. Changes were required to give greater emphasis to hapū rangatiratanga, and were necessary given the Crown’s duty of active protection. As Judge Doogan summarised in the introductory letter:¹¹

The Crown’s conduct has fallen short of its Treaty obligations in certain respects but we believe that some relatively small but crucial changes will remedy the prejudice and enable the Crown to settle the long outstanding Treaty grievances of the Whakatōhea in a fair and honourable manner.

[42] But the Crown did not make those crucial changes. Dr Jacob Pollock explains the Crown’s approach in his evidence. The Crown took the view that the Tribunal’s concerns about the workability of the withdrawal mechanism were “overstated”, and that undertaking hui on marae during the ratification process would be sufficient to achieve the Tribunal’s purpose of enabling decision-making to be guided by kaumātua and kuia. I accept that the applicants, and those who support the applicants, have an arguable case that the changes the Tribunal described as crucial were simply not made, and that for this reason the Treaty has been breached by the Crown in its failures to change the process as recommended. I also accept that these decisions can be challenged by way of judicial review as an exercise of public decision-making power notwithstanding that they do not arise out of a statutory power of decision.

[43] Such a challenge is not pleaded in the applicants’ amended statement of claim, but this application for interim relief should not be decided on a pleading point. Moreover I accept the point made by Mr Hodder KC that this challenge is closely related to the applicants’ present challenge based on the tikanga and rangatiratanga of Ngāti Ira. A question emerges, however, on whether such a challenge, and the orders now sought, are consistent with the non-interference principle.

[44] The non-interference principle has been explained in decisions of the Supreme Court. It is based on the separation of powers. It is for the Court to decide questions of legality, including the legality of the actions of the Crown. But it is not the Court’s function to adjudicate on matters that are being determined by the Legislature.

[45] In the Treaty settlement context there is also the related concept that Treaty settlements are political processes that are not controlled by legal requirements. Often both these points arise. In Ririnui v Landcorp Farming Ltd the Supreme Court upheld a judicial review challenge of decisions made by the government in connection with Treaty settlements. Arnold J said for the majority in that context:¹²

While the modern view is that courts have the power to review all exercises of public power whatever their source, the courts accept that some exercises of public power are not suitable for judicial review because of their subject matter. Decisions about the allocation of national resources or involving issues of national defence or national security or involving national political or policy considerations have been held to be not reviewable by the courts, although courts in recent times have been more willing to review decisions in areas previously regarded as inappropriate for review, the most obvious example being decisions in relation to national security. Courts have treated decisions about Treaty of Waitangi settlements as inappropriate for judicial review, not simply because they often involve legislation but also because the issues involved in settlements – such as 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.

[46] Reliance was placed on the observations made in Ngāti Mutunga o Wharekauri Iwi Trust v Minister for Treaty of Waitangi Negotiations and Griggs v Attorney- General that the general nature of decisions made in the Treaty settlement processes are not appropriate for assessment in judicial review proceedings.¹³But I do not think such considerations would arise in relation to a challenge to the Crown’s decisions following the Tribunal Report. Such a challenge would be based on a failure by the Crown to make the amendments to its processes which the Tribunal had found were necessary to ensure the Crown’s duties under the Treaty of Waitangi were met. It is not a challenge based on the substance of Treaty settlements, but on the processes that the Crown was following, and its duty of active protection of hapū rangatiratanga.

[47] But I do consider that the principle of non-interference arises. The Supreme Court addressed the non-interference principle in Ngāti Whātua Ōrākei Trust v Attorney-General. France J said for the majority:¹⁴

From the cases to date, there remain questions about the exact scope, qualifications and basis of the principle of non-interference in parliamentary proceedings. As will become apparent, it is not necessary in the present case to resolve the exact metes and bounds of the principle. It is, nonetheless, appropriate to sound a note of caution at the extent to which the principle of non-interference in parliamentary proceedings has been held to apply to decisions somewhat distant from, for example, the decision of a minister to introduce a Bill to the House or from debate in the House. It would be overbroad to suggest that the fact a decision may, potentially, be the subject of legislation would always suffice to take the advice leading up to that decision out of the reach of supervision by the courts. That would be to ignore the

function of the courts to make declarations as to rights. In that respect, it is relevant that the observations in Milroy were made in the context of acceptance by counsel for the appellants that the officials’ advice did not affect the rights of any person or have the potential to do so.

[48] I do not accept Mr Hodder’s submission that the Supreme Court narrowed the principle of non-interference in Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd.¹⁵I consider that case to be a further example of the Court continuing with its judicial review jurisdiction in relation to a challenge to a decision of the Waitangi Tribunal notwithstanding that there was a Bill before the House. The challenge was not directed at the Bill, or decisions directly associated with the Bill. It is accordingly in the same category as Ririnui in my view.

[49] A judicial review challenge to the decisions of the Crown not to make the changes recommended by the Tribunal, and an associated challenge to the decision of the Trustees not to insist on such changes, would be a judicial review challenge that has an arguable basis. Moreover it is not one directed to the Treaty Settlement itself, or to any proposed legislation to implement a Treaty Settlement. For that reason it would be a permissible challenge that did not engage the non-interference principle. I understood Mr Linkhorn to accept this for the Crown by reference to the decisions currently identified in paragraph [29](a) of the applicants’ amended statement of claim.

[50] But Mr Linkhorn contended that the decisions pleaded in paragraphs [29](b) and (c) would offend against the principle. I agree. They would be closely interrelated to the legislation implementing the settlement. It would be wrong for the Court, through its judicial review jurisdiction, to prevent steps associated with a legislative enactment. It is not realistic to separate the signing of the Deed of Settlement from the legislative process which will enact it. As was emphasised in argument, the Deed of Settlement is not legally binding without legislation with the exception of certain provisions. It is conditional on the Parliamentary enactment. So what the application for interim orders is really seeking is an order preventing the parties taking the step that will enable the legislation to be presented to the House of Representatives. To do so invites the Court to make orders in relation to what is to occur in Parliament.

[51] These principles apply to an application for interim orders as well as the substantive judicial review challenge. The applicants would not be entitled to interim relief if the orders sought engage the non-interference principle. The applicants could amend their pleadings to advance an underlying challenge that does not offend against that principle. But the application for interim relief would still do so. The applicants are seeking an order which prevents the Crown and WPCT entering the Deed of Settlement that is to be given effect by Parliamentary enactment. That is not allowed, and the application must be dismissed for this reason.

[52] There is a final related consideration in connection with the delay in bringing these proceedings, and this challenge being advanced just before the settlement is due to be signed.

[53] The available judicial review challenge identified above concerns the Crown’s response to the Tribunal’s Report of December 2021. The relevant decisions were made by the Crown after release of that Report. A challenge to those decisions would have needed to have been advanced promptly after they were made given the impact that such a challenge would have on the other hapū, and the iwi more broadly. It would need to be made before the petitions were then advanced to withdraw from the iwi settlement processes, or at least advanced at around that time. But that did not occur. The mandate withdrawal processes was then followed in relation to Te Upokorehe during 2022. In October 2022 the iwi ratification process was then followed in its unamended form. If a challenge was to be advanced that the Crown’s failure to change those processes, and WPCT’s failure to insist on those changes, it needed to be advanced at that time rather than letting those processes be followed in the unamended form.

[54] I do not accept the arguments that have been advanced that the applicants could have further approached the Waitangi Tribunal, or engaged in the dispute resolution processes contemplated by the trust deeds. The Tribunal had already made its position clear, and I doubt whether the dispute resolution procedures contemplated by the trust deeds would be appropriate for a matter that really concerns the legality of the Crown’s

[55] Not only was no such challenge advanced, but I also accept the arguments for the respondents that the applicants have inappropriately delayed bringing this application until the very last moment. The applicants were aware from the end of February 2023, or early March at the least that the Deed of Settlement was being signed. To launch a judicial review challenge, and an application for interim orders at the very last moment is simply unfair to the members of Whakatōhea who support the settlement, particularly given their plans for the signing on such a significant day. There would have to be a very good reason, or explanation, why a Court would grant an order at the last moment in these circumstances. In any event, delaying the challenge shows why the application engages the non-interference principle.

[58] It would be appropriate for these proceedings to generally remain adjourned pending the settlement being concluded. I invite the parties to liaise with the Registrar to determine an appropriate time for a judicial telephone conference before me for further directions.

Sykes & Corporation, Rotorua for the Applicants Crown Law, Wellington for the First Respondent

High Court of New Zealand Decisions

Hata v Attorney-General [2023] NZHC 1255 (25 May 2023)