IN THE COURT OF APPEAL OF

I TE KŌTI PĪRA O CA547/2017 [2019] NZCA 680

BETWEEN NGĀTI TE ATA Appellant

AND MINISTER FOR NEGOTIATIONS First Respondent

HER MAJESTY THE QUEEN Second Respondent

NGĀTI TAMAOHO SETTLEMENT TRUST Third Respondent

REGISTRAR-GENERAL OF LAND Fourth Respondent

Hearing: 27 August 2019 (further submissions received 22 October 2019)

Court: Clifford, Courtney and Wild JJ

Counsel: J P Kahukiwa for Appellant S M Kinsler and T R Simpson for First and Second Respondents T T Kapea for Third Respondent No appearance for Fourth Respondent

Judgment: 19 December 2019 at 4 pm

JUDGMENT OF THE COURT

A The appeal is dismissed. B The appellant is to pay one set of costs to the first and second respondents for a standard appeal on a band A basis and usual disbursements. ______

NGĀTI TE ATA v MINISTER FOR TREATY OF WAITANGI NEGOTIATIONS [2019] NZCA 680 [19 December 2019]

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] For some years now, the Crown has been in the process of endeavouring to settle the historical Treaty claims of the iwi of Tāmaki Makaurau. That process has been controversial. In particular, a 2006 agreement in principle between the Crown and Ngāti Whātua Ōrākei was seen by other iwi as inimical to their interests and contrary to the Crown’s Treaty obligations to them. As part of resolving that controversy the Crown entered into a settlement deed with the group of iwi known as the Ngā Mana Whenua o Tāmaki Makaurau collective (the Collective). The Crown subsequently legislated for that settlement pursuant to the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (the Collective Redress Act).

[2] Ngāti Te Ata and Ngāti Tamaoho are both iwi of Tāmaki Makaurau, and as such part of the overall settlement process with the Crown and members of the Collective.

[3] In April 2017, the Minister of Treaty Settlements gave notice that two properties previously designated right of first refusal (RFR) land pursuant to the Collective Redress Act for commercial redress for the Collective and its members were required for the settlement of Ngāti Tamaoho’s claim and the properties would therefore no longer be RFR land. A sale and purchase agreement was executed the same day.1

[4] Ngāti Te Ata unsuccessfully challenged the legality of that action in the High Court. Whata J found, contrary to the Crown’s position, that action was justiciable.2 But it was — in a judicial review sense and on the basis challenged — lawful. Ngāti Te Ata now appeals.

1 Transfer of the properties was delayed pending the outcome of the High Court proceedings. We understand that transfer of the properties has since taken place. 2 Ngāti Te Ata v Minister for Treaty of Waitangi Negotiations [2017] NZHC 2058.

The High Court decision

[5] Section 3 of the Collective Redress Act records its purpose:

3 Purpose of Act

The purpose of this Act is to give effect to certain provisions of the collective deed, which provides shared redress to the iwi and hapū constituting Ngā Mana Whenua o Tāmaki Makaurau, including by—

(a) restoring ownership of certain maunga and motu of Tāmaki Makaurau to the iwi and hapū, the maunga and motu being treasured sources of mana to the iwi and hapū; and

(b) providing mechanisms by which the iwi and hapū may exercise mana whenua and kaitiakitanga over the maunga and motu; and

(c) providing a right of first refusal regime in respect of certain land of Tāmaki Makaurau to enable those iwi and hapū to build an economic base for their members.

[6] The RFR referred to in s 3(c), over what the Collective Redress Act terms RFR land,3 is held and administered by a limited partnership established by the members of the Collective. The terms of the limited partnership include mechanisms whereby the benefit of the RFR is shared, including by rotation, between the iwi members.

[7] RFRs over what can loosely be termed Crown land are a regular feature of modern Treaty settlements. The relevant legislation — here, the Collective Redress Act — typically provides a comprehensive scheme for such rights independently of, but in conjunction with, the normal provisions of the Land Transfer Act 2017. Here, that substance is found in pt 4, sub-pt 1 of the Collective Redress Act. That substance:

(a) provides for memorials of the status of RFR land as such to be recorded on the computer registers for such land;4 and

(b) establishes comprehensive mechanisms for controls over dealings in RFR land, including pursuant to the RFR itself.5

3 Generally, all Crown land in Tāmaki Makaurau. 4 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 [Collective Redress Act], ss 148–150. 5 Sections 121–147.

[8] Thus, rights in respect of RFR land under the Collective Redress Act exist distinctly from rights in land more generally under the Land Transfer Act.

[9] The deed of settlement between the Crown and the Collective provided for RFR land nevertheless to be available for individual Treaty settlements. That agreement no doubt reflected the extent to which the RFR land comprised the bulk of Crown land in Tāmaki Makaurau and hence looked to, by both the Crown and iwi, as land to be used for redress in individual historical settlements.6 As relevant, that deed provides:

LAND REQUIRED FOR COMPREHENSIVE SETTLEMENTS

6.3 The iwi and hapū of Ngā Mana Whenua o Tāmaki Makaurau record their agreement that the RFR is not to apply to any land (including a cultural redress property or land used for financial and commercial redress) that is required for the settling of historical claims under the Treaty of Waitangi, being those relating to acts or omissions of the Crown before 21 September 1991.

6.4 To give effect to that agreement, the Tāmaki Makaurau collective legislation will, as provided by section 119 of the draft bill, provide for the removal of any land required for another Treaty settlement.

[10] That agreement is reflected in ss 118 and 120 of the Collective Redress Act. Section 118 of the Collective Redress Act provides that land ceases to be RFR land when notice is given under s 120 that it is required for another Treaty settlement. Section 120 then provides that the Minister of Treaty Negotiations is to give notice to the RFR landowner and the limited partnership under s 120 of the Collective Redress Act when the land is so required:

120 Land required for another Treaty settlement ceasing to be RFR land

(1) The Minister for Treaty of Waitangi Negotiations must, for RFR land required for another Treaty settlement, give notice to both the RFR landowner and the Limited Partnership that the land ceases to be RFR land.

(2) The notice may be given at any time before a contract is formed under section 127 for the disposal of the land.[7]

6 There are very helpful, more detailed, discussions of this background in the decisions of both the majority and Elias CJ in Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 [Ngāti Whātua Ōrākei]. 7 Section 127 provides for the disposal of RFR land where the Collective has exercised the right of first refusal.

(3) In this section, RFR land required for another Treaty settlement means RFR land that is to be vested or transferred as part of the settling of historical claims under the Treaty of Waitangi, being the historical claims relating to acts or omissions of the Crown before 21 September 1992.

[11] Explaining their concern at the Minister’s action, Ngāti Te Ata said the Disputed Properties held deep ancestral meaning and significance for them. They fell within their mana whenua. It was only in the 1950s–1960s that the Crown had become the registered proprietor of the Disputed Properties, following their initial alienation in the nineteenth century. Since that time Ngāti Te Ata had been prohibited from going on to and using and occupying that land. Removing the Disputed Properties from the RFR land would permanently prevent Ngāti Te Ata from using and occupying that land, and hence restoring its mana whenua. It would effect a change to the mana whenua exercised by Ngāti Te Ata and Ngāti Tamaoho that was not in accordance with tikanga. To do so would be both ultra vires and unreasonable.

[12] It would be ultra vires because the Collective Redress Act implied limitations on the Minister’s powers to dispose of RFR land. Those limitations restricted the Minister from giving a s 120 notice where a mana whenua iwi had objected to the disposal of the land in question to another mana whenua iwi, for reasons of mana whenua, and had taken steps to resolve the matter, as Ngāti Te Ata had done here.

[13] It would be unreasonable in those circumstances to decide that such RFR land was required for another Treaty settlement.

[14] The Crown defended those claims on the basis that the Collective Redress Act did not imply the pleaded limitations. Rather s 120 meant what it said: it was a notice requirement, and did not confer a veto right on those asserting mana whenua in relation to properties identified for particular settlement. Moreover, the Minister had complied with the requirements of the Collective Redress Act.

[15] Similarly, the Crown submitted, the Minister had not acted unreasonably.

[16] Whata J characterised the questions before him as:8

(a) Is the decision by the Minister to dispose of the properties for the purpose of an individual Treaty settlement justiciable?

(b) Does the Minister have the power to dispose of RFR land for the purpose of an individual Treaty settlement?

(c) Is a decision by the Minister to dispose of RFR land for Treaty settlement purposes unreasonable where another mana whenua iwi

objects to it and has taken steps to resolve the matter?

[17] To answer those questions the Judge comprehensively recorded both the basis upon which Ngāti Te Ata described how it had traditionally exercised mana whenua in the area where the Disputed Properties are located, and the more recent history of Tāmaki Makaurau.9 We gratefully adopt that narrative. Whata J then turned to the questions before him.

Was the Minister’s decision justiciable?

[18] The Judge held that the Minister’s decision was justiciable, that is it was properly subject to judicial review.10 In particular it was not, as the Crown had argued, beyond the ambit of judicial review as comprising part of a Parliamentary process. Whilst described as part of the settlement with Ngāti Te Ata, the Disputed Properties were transferred pursuant to what is described as the early release mechanism. Those transfers were not conditional on the settlement being given effect through legislation. Without legislation, the transfer would still occur. That part of Whata J’s decision is not challenged.11

8 Ngāti Te Ata v The Minister for Treaty of Waitangi Negotiations, above n 2, at [4]. 9 At [42]–[50]. 10 At [54]. 11 We acknowledge that aspect of Whata J’s decision, at least as it reflects the Judge’s understanding of the implication of the principle that it is not for the courts to seek to interfere in Parliament’s processes, was doubted in Ngāti Whātua Ōrākei, above n 6, in the Supreme Court: see at [113]. The legal basis for those doubts, however, were not matters which would have assisted the Crown here, even if it had appealed that aspect of Whata J’s decision which it did not.

Did the Minister have the power to dispose of RFR land for the purpose of an individual Treaty settlement?

[19] Ngāti Te Ata argued that the Collective Redress Act did not confer an express power on the Minister to remove RFR land: s 120 was simply a notice provision, not an empowering provision. No such power should be implied into the s 120 notice, given the Collective Redress Act’s purposes and background.

[20] In rejecting that argument, the Judge concluded the “absence of power” argument misconceptualised the key issue.12 Section 120 was simply a notice provision. Its plain effect was to remove identified properties (such as the Disputed Properties) from the RFR scheme. The sole expressed statutory criterion for issuing such a notice was that the land was required for an individual Treaty settlement. A power to remove or dispose of the land was not, the Judge reasoned, a requirement for the purpose of removal of land from the RFR scheme. That removal occurred by operation of the statute.

[21] This was not a case of the compulsory acquisition of land, and accordingly did not fall within the ambit of the principle which requires powers of compulsory acquisition to be construed narrowly.13

Was the Minister’s decision unreasonable because Ngāti Te Ata objected to it and had taken steps to resolve the matter?

[22] In response to this aspect of Ngāti Te Ata’s submissions, the Judge recognised the general purpose of the Collective Redress Act was to enable shared redress via specified processes for dealing with Crown land in Tāmaki Makaurau.14 That Act, including s 120 and related sections, was to be interpreted consistently with that purpose. But at the same time, the object and effect of cl 6 of the Deed and s 120 of the Collective Redress Act were clear. It could not be right that a decision to require land for an individual Treaty settlement would be unreasonable simply because

12 Ngāti Te Ata v The Minister for Treaty of Waitangi Negotiations, above n 2, at [57]. 13 At [61]. 14 At [67].

another iwi might have a genuine tikanga-based interest in that land, and because consensus was not achieved.15

Did the Minister act in good faith?

[23] Notwithstanding those findings dealt with the pleaded claims, the Judge went on to consider whether the Minister had otherwise acted in good faith and reasonably. In doing so he accepted that the broader context, and in particular the whole purpose of recognising the interests of the members of the Collective, coloured any assessment of whether the Minister had acted in good faith and reasonably in responding to overlapping claims between those iwi.16

[24] The Judge concluded that, on the basis of the evidence, he was satisfied the Minister had acted in good faith and reasonably.17 The Minister was well aware of Ngāti Te Ata’s concerns, and endeavoured to facilitate consensus between Ngāti Te Ata and Ngāti Tamaoho. He provided a range of opportunities for Ngāti Te Ata to further its claim to the Disputed Properties prior to his decision. At the same time, the Judge acknowledged “the forthright criticism made by [Ngāti Te Ata] about the process adopted, the Crown research and the basis for the claim made by Ngāti Tamaoho in respect of the [Disputed Properties]”.18

[25] Having said that, the Judge noted the competing customary claims concerned matters of considerable historical complexity on which competing views could validly be held.19 It was accordingly, the Judge concluded, within the remit of the Minister to reach the conclusion that, notwithstanding Ngāti Te Ata’s historical connection to the Disputed Properties, they should be required as commercial redress for settlement of Ngāti Tamaoho’s individual claim. The Minister was not, in the context of commercial redress, engaged in any definitive evaluation of the relative strength of competing mana whenua claims.20

15 At [68]–[69]. 16 At [71]. 17 At [72]. 18 At [74]. 19 At [75]. 20 At [77].

[26] We acknowledge, again, that the discussion in the Supreme Court in Ngāti Whatua as to the significance of the claimed rights, including those based on tikanga, may also mean that the reasonably clear line the Judge appeared to draw, between the transfer of land for commercial redress and actual or purported determination of competed or shared mana whenua rights, may not be sustainable as a matter of New Zealand law. Those parts of Ngāti Whātua Ōrākei were, as we understand matters and comment on below, very much part of the basis on which Ngāti Te Ata argued this appeal, in distinction to the way it had been argued before the Judge in the High Court.21 As will become apparent, that change of approach is an important aspect of the way this appeal in our view is to be disposed of.

This appeal

[27] In its notice of appeal, Ngāti Te Ata challenged Whata J’s conclusions as to power and reasonableness directly.

[28] But in his written submissions, and perhaps more clearly in his written outline of argument filed at the hearing, Mr Kahukiwa based Ngāti Te Ata’s assertion of error by Whata J, and in turn of the illegality of the Minister’s actions, on a proposition not argued before Whata J. That is, the Minister’s actions constituted his self-appointment as arbiter of competing mana whenua claims for which no power was provided, whether under the Collective Redress Act or as part of the historical prerogatives of the Crown.22

[29] The detriment to Ngāti Te Ata of those ultra vires actions was clear. That detriment was in direct contradiction to the purposes of the Collective Redress Act. As to the prerogative, from the outset of the establishment of

21 Ngāti Whātua Ōrākei v Attorney-General, above n 6. 22 In Ngāti Te Ata’s written submissions filed ahead of the hearing of that appeal, Mr Kahukiwa based his new argument on the proposition that in the Collective Redress Act Parliament could easily have, but had not, provided a power for the Minister to determine competing mana whenua claims. At the hearing of the appeal, Mr Kahukiwa advanced a more fundamental proposition. That is, it simply was not for the Crown to purport to determine competing mana whenua claims. Moreover, those claims represented a form of equity in real property which could be relied on by iwi. As recorded in a minute issued after the hearing of the appeal, we provided the opportunity for both the Crown and, in reply, Ngāti Te Ata to make further submissions on those questions. The analysis of argument we set out below reflects the totality of the submissions, both at the hearing and subsequently in writing, that were made to us.

New Zealand as a colony the Crown had recognised the inviolability of the rights of Māori to the actual occupation or enjoyment in their own persons, or in that of their descendants, of any lands actually occupied or enjoyed by them at the time of the Crown’s receipt of sovereignty. The prerogative powers undoubtedly included the power to settle historical Treaty claims. But those powers did not extend to the Crown self-appointing itself arbiter of competing mana whenua claims and redefining the mana whenua of Ngāti Te Ata. By the very nature of relevant mana whenua rights and entitlements, that could only be done with the consent of Ngāti Te Ata and on the basis of tikanga.

[30] The Crown submitted that the Judge was correct to find the Minister acted lawfully, that is within his powers and not unreasonably. The new claim based on asserted mana whenua rights was not advanced in the High Court. It could not therefore be the subject of this appeal. Moreover, similar issues had been raised directly in the Ngāti Whātua Ōrākei proceedings already underway in the courts. It was there, the Crown argued, those issues would properly be determined.

Analysis

[31] We will first consider this appeal in terms of the way Ngāti Te Ata sought judicial review in the High Court, namely on the basis of the issues of ultra vires and unreasonableness as argued before the Judge. We will then consider the broader argument advanced at the hearing of the appeal, and subsequently, based in particular on the significance of mana whenua rights.

Section 120 — no implied power to dispose of RFR land?

[32] As reflected by Whata J’s analysis, this was the principal basis upon which Ngāti Te Ata based its judicial review claim. Like the Judge, in our view the machinery provisions found in the Collective Redress Act, whereby land ceases to be RFR land when the Minister gives the relevant notice, do not involve any question of a power of disposal. The disposal occurs separately, and when — generally as authorised by Parliament — the necessary transfers to give effect to an historical Treaty settlement are made.

[33] We note, in this context, it might perhaps have been asked whether the early release transfers at issue here were ones which were “required for another Treaty settlement”. That is because, as we have noted, such transfers occur irrespective of (albeit in anticipation of) settlement and are not affected if that settlement never occurs. Reflecting that, the settlement deed expressly provides that the provisions of the deed are conditional on the settlement legislation coming into effect. If it does not, the deed may be terminated. Where that happens, cl 9.10.4 of the deed records that:

[T]he parties intend that the on account payments and early transfer properties are taken into account in any future settlement of the historical claims.

[34] But that is an argument that was not raised before the High Court, or referred in any way to us. It is clear we should not comment on it further, if for no other reason than there are likely to be many aspects of the role played by early release transfers in the settlement process that we are unaware of.

Was this s 120 notice unreasonable?

[35] We also agree with the Judge’s conclusion that it was not unreasonable for the Minister to give a s 120 notice as regards the Disputed Properties, simply because Ngāti Te Ata had objected, on mana whenua grounds, to those properties being removed from the scope of the RFR. In our view, the scheme of the Collective Redress Act does not allow for that very general proposition. In saying that, we acknowledge the more general observations the Judge made at [71] and following when, on a slightly broader basis, he addressed questions of good faith and reasonableness. In doing so, we accept that the Supreme Court’s decision in Ngāti Whātua Ōrākei may be seen as giving greater significance to mana whenua rights based on tikanga, and hence invite greater scrutiny of Ministerial decisions in this area. We note in particular the comments by Elias CJ at [92] of her judgment in Ngāti Whātua Ōrākei, commenting on the similar, but more refined, proposition made in that case.

Tikanga and competing mana whenua claims

[36] So, we turn directly to Mr Kahukiwa’s submission that the Minister’s action amounted to his self-appointment as arbitrator of competing mana whenua claims, as founded on principles of tikanga and as those principles may be recognised as part of

the common law of New Zealand, that he suggested was outside both the powers of the Minister and the Crown more generally.

[37] Ngāti Whātua Ōrākei concerned similar issues to those raised in these proceedings. There, Ngāti Whātua Ōrākei challenged the proposed transfer of RFR properties to Ngāti Paoa and to the Marutūāhu Iwi collective as part of their historical settlements. That challenge was based in part on the constraints on the Crown’s powers represented by tikanga, on an obligation not to erode the mana whenua of Ngāti Whātua Ōrākei, on the Treaty and on the Declaration of the Rights of .23 Decisions under s 120 were, as here, the focus of those claims. The Crown successfully applied to the High Court to strike out the claims as a challenge to legislative proposals.24 That decision was upheld by this Court, albeit on narrower grounds than those relied on by the High Court.25

[38] In allowing Ngāti Whātua Ōrākei’s appeal, the Supreme Court acknowledged Ngāti Whātua Ōrākei’s pleaded reliance on tikanga and associated rights. As Elias CJ explained:26

Ngāti Whātua Ōrākei contended that the transfer by the Crown of these properties, in respect of which it claims mana whenua, is contrary to tikanga recognised in New Zealand law and a breach of the Treaty settlement already entered into between Ngāti Whātua Ōrākei and the Crown. In addition, it claims that a published policy of the Crown that it is unnecessary to resolve “overlapping claims” before it enters into Treaty settlements is wrong in law.

[39] The determination of those claims was not, the Court found, precluded by Parliament’s privilege as regards its functions and processes. For the majority, Ellen France J put it thus:

[64] It is not certain that a claim by Ngāti Whātua Ōrākei that there are some process obligations arising in relation to the s 120 notice deriving from the interests or rights claimed in the area would fail. That is because it is quite possible that the Crown will seek to remove other land from the relevant areas other than through legislation as, in fact, was initially proposed for Ngāti Paoa.

23 See, for example, Ngāti Whātua Ōrākei v Attorney-General, above n 6, at [27]. 24 Ngāti Whātua Ōrākei v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516. 25 Ngāti Whātua Ōrākei v Attorney-General [2017] NZCA 554, [2018] 2 NZLR 648. 26 At [69] (footnote omitted).

[40] Mr Kahukiwa’s argument before us, as we understood it, was more radical than that advanced on behalf of Ngāti Whātua Ōrākei. Mr Kahukiwa’s proposition was that the use of the Disputed Properties as early release properties, and their transfer as such to Ngāti Tamaoho, had been beyond the Crown’s powers as it had effected — inconsistently with tikanga and customary law — the balance or boundaries (as it were) of mana whenua as between Ngāti Te Ata and Ngāti Tamaoho.

[41] But as Mr Kinsler for the Crown submitted, whether and how the principles acknowledged in Ngāti Whātua Ōrākei develop is not a matter we can easily engage with here, and we are not in a position to consider Mr Kahukiwa’s new argument of the Crown’s inability to self-appoint itself as a determiner of competing mana whenua claims. Not only was that argument not before the High Court, it is a proposition of extreme generality. As the Supreme Court’s discussions in Ngāti Whātua Ōrākei reflect, any consideration of the significance of customary, tikanga mana whenua rights will be extensively evidence based.

Result

[42] The appeal is dismissed.

[43] Ngāti Te Ata is to pay one set of costs to the first and second respondents for a standard appeal on a band A basis and usual disbursements. The formal order we make as regards costs, as was the case also in the High Court, is that costs are payable by Ngāti Te Ata’s settlement entity, Te Ara Rangatu O Te Iwi Ngāti Te Ata Waiohua Inc (1920008). Given the limited role of Mr Kapea, who appeared essentially on a watching brief, we do not understand any costs issue to arise as between Ngāti Te Ata and the third respondent. Leave is reserved for counsel to approach us if that is not the case.

Solicitors: Corban Revell, for Appellant Crown Law Office, and Meredith Connell, Wellington for First and Second Respondents Tuia Legal, Wellington for Third Respondent