IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA CA547/2017 [2019] NZCA 680 BETWEEN NGĀTI TE ATA Appellant AND MINISTER FOR TREATY OF WAITANGI 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.