NGATI TE ATA v THE MINISTER FOR TREATY OF WAITANGI NEGOTIATIONS [2017] NZHC 2058 [25

August 2017]

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2017-404-1050

[2017] NZHC 2058

BETWEEN

NGATI TE ATA

Applicant

AND

THE MINISTER FOR TREATY OF

WAITANGI NEGOTIATIONS

First Respondent

HER MAJESTY THE QUEEN

Second Respondent

NGATI TAMAOHO SETTLEMENT

TRUST

Third Respondent

REGISTRAR GENERAL OF LAND

Fourth Respondent

Hearing:

4 August 2017

Counsel:

J P Kahukiwa and I B Kwan-Parsons for Applicant

S M Kinsler and C J C Pouwels for First and Second

Respondents

T T Kapea for Third Respondent

N C Anderson for Fourth Respondent

Judgment:

25 August 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 25 August 2017 at 4.15 pm

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Corban Revell, Auckland Crown Law, Wellington

[1] Ngāti Te Ata challenges the decision by the Minister for Treaty of Waitangi

Negotiations (the Minister) to dispose of two properties1 classified as right of first

refusal land (RFR land) by the Ngā Mana Whenua o Tāmaki Makaurau Collective

Redress Act 2014 (the Collective Redress Act). Ngāti Te Ata makes two claims.

First, the Minister has no express power to dispose of RFR land in circumstances

where a mana whenua iwi objects to the disposal. Alternatively, any decision to

dispose of RFR land is unreasonable where another mana whenua iwi was objecting

and had taken steps to resolve the matter.

[2] The Minister submits removal of land from the RFR mechanism for the

purpose of individual Treaty of Waitangi settlements is expressly enabled by the

Collective Redress Act, and the land which was removed forms part of a Treaty

settlement package agreed with Ngāti Tamaoho.

[3] A curious feature of this case is that the transfer of the two properties at issue

(the early transfer properties) is not conditional on the draft Bill before Parliament

seeking to ratify the settlement with Ngāti Tamaoho. The Minister nevertheless

submits the decision to dispose of the properties, as part of a Treaty settlement, is a

political decision and consequently non-justiciable.

[4] With the benefit of argument, the central questions in this case therefore are:

(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?

1 Lot 8 DP 51794, Certificate of Title NA102D/981, located at 725 Great South Road, Wiri, and

Sec 23 Survey Plan 435724, Certificate of Title NA581486, located at 112 Bairds Road, Ōtara.

The applicant

[5] The pleadings refer to Ngāti Te Ata as the applicant. While the existence and

mana of Ngāti Te Ata is not disputed by the Crown, the capacity to sue in the name

of Ngāti Te Ata is challenged. There are problems for the Court with commencing

proceedings in the name of an iwi or hapū, in particular the practical inability to

make or enforce orders against persons whose membership of the named party is

determined by whakapapa.2 I assume for present purposes that counsel have

authority, in accordance with tikanga, to commence proceedings in the name of

Ngāti Te Ata. That being the case, I am content to refer to the applicant as Ngāti Te

Ata within the body of this judgment. However, for the purpose of any orders to be

made in these proceedings, the plaintiff will be Te Ara Rangatu O Te Iwi O Ngāti Te

Ata Waiohua Inc (1920008), the entity which executed the undertaking as to

damages in support of interim orders.

Background

[6] The background to this proceeding has two parts: the first dealing with the

Collective Redress Deed and Act, the second with the Ngāti Tamaoho negotiations

and settlement.

The Collective Redress Deed and Act3

[7] On 9 June 2006, the Crown and Ngāti Whātua o Ōrākei (Ngāti Whātua)

entered into an agreement in principle providing for the settlement of Ngāti Whātua’s

historical claims. The proposed settlement involved, among other things, a right of

first refusal to lands located within Tāmaki Makaurau.

[8] The other iwi and hapū with mana whenua in Tāmaki Makaurau brought an

urgent claim before the Waitangi Tribunal, pointing to process failures, and unhappy

about the content of the draft settlement which they said offered Ngāti Whātua

2 Rule 4.24 of the High Court Rules 2016 provides for representative actions. But this requires the

consent of all persons represented and is not the basis advanced by Mr Kahukiwa for filing in the

name of the iwi. 3 For a full account of the background see Ngāti Whātua Ōrākei Trust v Attorney-General [2017]

NZHC 389, especially [12]-[28], [43]-[47], and [51]-[56].

opportunities and assets without sufficient regard to their equally strong interests.4

The Tribunal delivered its report on 12 June 2007. It laid out a strong critique of the

Crown’s approach, which it said primarily “damages whanaungatanga”, overlooking

that:5

… When the Crown deals with one group in settlement negotiations,

everything it does affects others who have interests in and connections to the

area that is the subject of the negotiation. Often, the affected groups are kin

to the settling group; always, they are neighbours. They all share history,

interests in land, and whakapapa. In Tāmaki Makaurau, which has been

intensively occupied by successive groups for generations, the layers of

interests are complex and intense.

[9] In terms of commercial redress, the overriding concern of the objecting iwi

and hapū was that the Crown would not be able to offer them anything equivalent to

what was offered to Ngāti Whātua.6 More specifically, their concerns were, among

others, that there was insufficient information for them to properly analyse the

commercial redress offered, and that the right of first refusal offered to Ngāti Whātua

was over areas where other mana whenua iwi and hapū had interests, with some

offered sites being of particular cultural significance.7

[10] Notably, the Crown’s case before the Tribunal was that it dealt fairly with

‘overlapping claimants’ in the pre-agreement in principle period, and that it would

again meet with those claimants in the period following the proposed agreement

being put in place.8 It also emphasised that sites in the right of first refusal area were

for commercial, not cultural, redress, and that the applicants were conflating the two

concepts.9

[11] The Tribunal did not accept the Crown’s position. It found:10

The Crown’s dealings with overlapping claimants without Tribunal

involvement do not inspire confidence in the Crown’s willingness to respond

to those claimants’ concern without that kind of incentive. Cabinet itself has

approved the terms of the agreement in principle, and would need to approve

any changes to them. The Ngāti Whātua o Ōrākei negotiating team would

4 Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007) at 1.

5 At 2.

6 At 71.

7 At 72.

8 At 76.

9 At 80.

10 At 95.

also need to agree to any change to the terms of the agreement in principle

being made in the deed of settlement. Accordingly, we consider that it is the

parties’ intention and expectation that the redress proposed in the agreement

in principle will be the settlement redress unless something substantial

upsets that plan. This is why this Tribunal does not accept the Crown’s

submission that our involvement is premature.

[12] It also observed:11

… a right of first refusal (a form of exclusive redress) is not usually

available on a property in an area subject to unresolved ‘overlapping’ claims.

Ngāti Whātua o Ōrākei have been offered rights of first refusal over multiple

properties in such an area. Moreover, the Office of Treaty Settlements’

evidence about the nature of Ngāti Whātua o Ōrākei’s interests is

inconsistent. We were told that the right of first refusal area was not one in

which Ngāti Whātua o Ōrākei are recognised as having exclusive interests.

Yet in documents from the Office of Treaty Settlements to their Minister,

Ngāti Whātua o Ōrākei’s interests in the right of first refusal area are

described as being exclusive …

[13] And finally:12

Although others have customary interests in the Ngāti Whātua o Ōrākei

Right of First Refusal Area, Ngāti Whātua o Ōrākei’s right of first refusal is

not framed so as to take account of those: they have exclusive rights there in

respect of any of the Crown’s properties that become surplus. This has

consequences for groups who may have cultural ties to those sites. The

Crown has not accounted for this possibility in its framing of redress for

Ngāti Whātua o Ōrākei …

[14] Turning to the principles of the Treaty of Waitangi, the Tribunal found a

number of inconsistencies in the Crown’s approach. Primarily, it found the Crown

failed to fulfil its duty to act reasonably, honourably and in good faith, by failing to

fully inform itself before making material decisions affecting Māori, including by

not adequately weighing overlapping claims or adequately consulting and involving

people concerned in deliberations.13

[15] The Tribunal’s principal concern was with the fairness to other mana whenua

iwi and hapū of the Ngāti Whātua agreement:14

We think that the Crown must afford the other tangata whenua groups in

Tāmaki Makaurau that appeared before us the opportunity to enter into a

11

At 97. 12

At 99. 13

At 100-101. 14

At 107.

negotiation and settlement relationship with the Crown. This is because we

believe the Crown cannot say right now with any confidence that it knows

enough about all the groups’ relative interests to be awarding exclusive

rights to any, nor to be precluding the possibility that exclusive rights may

need to be awarded to any. Nor can the Crown say with any confidence that

its offer of commercial redress to Ngāti Whātua o Ōrākei does not

undermine its ability to benefit the other groups similarly, because:

it has not valued what it is offering to Ngāti Whātua o Ōrākei;

it does not know whether other properties comparable to those in the

North Shore Naval housing area can be made available to other

claimants; and

it has not taken into account whether the offer of areas of rights of

first refusal to Ngāti Whātua o Ōrākei will overlap with sites of

cultural significance to the other tangata whenua groups.

[16] In response, the Crown entered into negotiations with a collective of Tāmaki

iwi, Ngā Mana Whenua o Tāmaki Makaurau (the Tāmaki Collective)15

about

collective redress with respect to:

(a) vesting of maunga and certain motu located within the Tāmaki

Makaurau and co-governance of specified reserves; and

(b) a collectively held right of first refusal for 170 years to purchase

surplus land held by the Crown in Tāmaki Makaurau.

[17] Out of those negotiations, the Crown and the Tāmaki Collective concluded a

Collective Redress Deed on 8 September 2012.

The Deed

[18] The Collective Redress Deed was conditional on legislation coming into

force, and envisaged (among other things):

(a) the enactment of legislation to give effect to its terms;

15

Ngā Mana Whenua o Tāmaki Makaurau comprises Ngāti Tai ki Tāmaki, Ngāti Maru, Ngāti

Pāoa, Ngāti Tamaoho, Ngāti Tamaterā, Ngāti Te Ata, Ngāti Whanaunga, Ngāti Whātua o

Kaipara, Ngāti Whātua Orākei, Te Ākitai Waiohua, Te Kawerau ā Maki, Te Patukirikiri and hapū

of Ngāti Whātua (whose members are beneficiaries of Te Runanga o Ngāti Whātua, including Te

Taoū not descended from Tuperiri).

(b) the establishment of legal entities necessary for the implementation of

its terms;

(c) vesting of specified maunga and motu in the Tāmaki Collective;

(d) co-governance of specified reserves; and

(e) a right of first refusal in relation to specified RFR land vested in a

limited partnership, namely the Whenua Haumi Roroa o Tāmaki

Makaurau Limited Partnership (the Limited Partnership).

[19] Most relevant for present purposes is cl 6 of the Deed, which provides for a

right of first refusal as follows:

THE STATUTORY RIGHT

6.1 The limited partnership is to have a right of first refusal in relation to

a disposal by the Crown or a Crown body of RFR land.

6.2 The right of first refusal is to be on the terms provided by sections

116 to 151 of the draft bill and, in particular, will apply –

6.2.1 for a term of 172 years from the effective date; and

6.2.2 only if the RFR land –

(a) is vested in, or the fee simple estate in it is held by,

the Crown on the effective date and the land is not

occupied by a tertiary education institution other

than one named in part 4 of the attachments;

(b) in the case of land described in part 4 of the

attachments, is held in fee simple by a Crown body;

and

(c) is not being disposed of in the circumstances

referred to in sections 120(2) and 120(3) of the draft

bill.

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.

…

[20] Clause 119 of the Bill, on its first reading on 2 July 2013, stated:

119 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 126 for the disposal of the land.

(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 those

relating to acts or omissions of the Crown before 21 September

1992.

Collective Redress Act

[21] The Collective Redress Act received royal assent on 31 July 2014. The

preamble records:

(1) The iwi and hapū constituting the collective known as Ngā Mana

Whenua o Tāmaki Makaurau have claims to Tāmaki Makaurau

based on historical breaches of the Treaty of Waitangi (Te Tiriti o

Waitangi) by the Crown:

(2) Settlement of these claims is progressing through negotiations

between the Crown and each individual iwi and hapū:

(3) At the same time, the Crown has been negotiating other redress with

Ngā Mana Whenua o Tāmaki Makaurau –

(a) that relates to certain maunga, motu, and lands of Tāmaki

Makaurau; and

(b) in respect of which all the iwi and hapū have interests; and

(c) in respect of which all the iwi and hapū will share:

…

(8) On 7 June 2012, the Crown and Ngā Mana Whenua o Tāmaki

Makaurau initialled a deed encapsulating the agreed redress arising

from the Framework Agreement and the Record of Agreement:

(9) On 8 September 2012, representatives of the Crown and Ngā Mana

Whenua o Tāmaki Makaurau signed the deed:

(10) To implement the deed, legislation is required.

[22] The purpose of the Act is stated at s 3:

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.

[23] Section 6, which provides an outline of the Act’s overall scheme, records at

subs (5):

6 Outline

…

(5) Part 4 provides for commercial redress, including—

(a) a right of first refusal in relation to RFR land that may be

exercised by the Whenua Haumi Roroa o Tāmaki Makaurau

Limited Partnership (the Limited Partnership) or the rōpū

entities; and

(b) authorisation for the transfer of former deferred selection

properties to the Limited Partnership to give effect to the

collective deed.

[24] Section 7 states:

7 Interpretation of Act generally

It is the intention of Parliament that this Act is interpreted in a

manner that best furthers the agreements expressed in the collective

deed.

[25] Ngā Mana Whenua o Tāmaki Makaurau, or the Tāmaki Collective, is defined

to mean the collective iwi and hapū who entered the Collective Deed, including

Ngāti Te Ata and Ngāti Tamaoho.16

[26] Part 4 of the Act addresses commercial redress and establishes a right of first

refusal process, by which specified Crown land within Tāmaki Makaurau (that is,

RFR land) must be offered to the Limited Partnership or a rōpū entity.17

Section 117

defines RFR landowner as follows:

117 Interpretation

RFR landowner, for RFR land,—

(a) means the Crown, if the land is vested in the Crown or the

Crown holds the fee simple estate in the land; and

(b) means a Crown body, if the body holds the fee simple estate

in the land; and

(c) includes a local authority to which RFR land has been

disposed of under section 129(1); but

(d) to avoid doubt, does not include an administering body in

which RFR land is vested on the effective date or (under

section 130(1)) after the effective date

[27] Section 118(1) defines the land subject to this mechanism as RFR land,

which includes the properties in issue in this proceeding. It states:

118 Meaning of RFR land

(1) In this Act, RFR land means—

(a) the land within the RFR area, but only if, on the effective

date, the land—

(i) is vested in the Crown and not occupied by a tertiary

education institution; or

16

Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 9. See [16] above. 17

Rōpū entity is defined in s 8 as meaning “the Marutūāhu rōpū entity, the Ngāti Whatua rōpū

entity, and the Waiohua Tāmaki rōpū entity”.

(ii) is held in fee simple by the Crown and not occupied

by a tertiary education institution; or

(iii) is a reserve vested in an administering body that

derived title to the reserve from the Crown and that

would, on the application of section 25 or 27 of the

Reserves Act 1977, revest in the Crown; and

(b) former deferred selection RFR land; and

(c) the land described in table 1 of part 4 of the attachments to

the collective deed, but only if, on the effective date, the land

is held in fee simple by a Crown body; and

(d) the land obtained in exchange for a disposal of RFR land

under section 134(1)(c) or 135; and

(e) the land described in table 2 of part 4 of the attachments to

the collective deed, but only if, on the effective date, the land

is—

(i) vested in or held in fee simple by the Crown and

occupied by Unitec; or

(ii) vested in or held in fee simple by Unitec; and

(f) the land described in table 3 of part 4 of the attachments to

the collective deed, but only if, on the effective date, the land

is—

(i) vested in or held in fee simple by the Crown and

occupied by the University of Auckland; or

(ii) vested in or held in fee simple by the University of

Auckland

[28] Section 118(2) records when land ceases to be RFR land. Primarily, this

occurs on transfer to the Limited Partnership or to a rōpū entity or any other person

pursuant to the RFR scheme.18

Additionally, if RFR land is required for another

Treaty settlement, it ceases to be RFR land when notice is given for the land under s

120.19

[29] Relevantly s 120 (like s 119 of the Bill) states:

120 Land required for another Treaty settlement ceasing to be RFR

land

18

Section 118(2)(a). 19

Section 118(2)(d).

(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.

(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.

[30] Section 121 imposes restrictions on the disposal of RFR land in the following

terms:

121 Restrictions on disposal of RFR land

(1) An RFR landowner must not dispose of RFR land to any person

other than the Limited Partnership or a rōpū entity (or the Limited

Partnership's or rōpū entity's nominee) unless the land is disposed of

under subsection (2) or (3).

(2) The RFR land may be disposed of under any of sections 128 to 141

or under anything referred to in section 142(1) or in accordance with

a waiver or variation given under section 151.

(3) The RFR land may be disposed of within 12 months after the expiry

date of an offer by the RFR landowner to dispose of the land to the

Limited Partnership if the offer to the Limited Partnership was—

(a) made in accordance with section 123; and

(b) made on terms that were the same as, or more favourable to

the Limited Partnership than, the terms of the disposal to the

person referred to in subsection (1); and

(c) not withdrawn under section 125; and

(d) not accepted under section 126.

[31] Subsections (2) and (3) refer to a detailed scheme for disposal, which

includes a requirement to offer RFR land to the Limited Partnership20

and other

contractual matters such as offer expiry date, withdrawal, acceptance,21

and contract

formation.22

Other disposals are also provided for, including disposal to the Crown,23

20

Section 123. 21

Sections 124-126. 22

Section 127. 23

Section 128.

local authorities,24

disposals to give effect to existing obligations,25

disposals under

certain legislation, for public works and other specified public or charitable

purposes,26

and disposals to specified persons.27

[32] Sections 144-147 set out specific notice requirements for the disposal of RFR

land. Relevantly s 145 provides for notice of land ceasing to be RFR land.

Subsections (1)-(3) deal with notice of transfers in accordance with the standard

RFR disposal procedures. Subsections (4)-(6) deal with land in relation to which

notice pursuant to s 120 has been given.

[33] Section 148 provides for the memorialisation of RFR land. The Registrar-

General must record on the register that the land is RFR land as defined in s 118, and

is subject to subpart 1 of Part 4, which restricts disposal, including leasing, of the

land. Section 149 then deals with removal of memorials. The chief executive of

Land Information New Zealand (LINZ) must, before registration of the transfer or

vesting of land described in a notice under s 145(2) or (5) , issue to the Registrar-

General a certificate that, in short, identifies the land, the details of the transfer, and

states that it is issued under subs (1).

The Ngāti Tamaoho negotiations and settlement28

[34] Ngāti Tamaoho signed an agreement in principle with the Crown in

December 2012, recommencing negotiations in August 2015. By mid-April 2016, a

redress package was agreed. This package included the early transfer of the two

properties this proceeding concerns.

[35] On 14 April 2016, officials at the Office of Treaty Settlements (OTS) wrote to

all identified overlapping claimant groups, including Ngāti Te Ata. The letter

explained the overlapping claims process and encouraged Ngāti Te Ata and Ngāti

Tamaoho to reach agreement, offering to assist in any discussion if necessary. OTS

24

Section 129. 25

Sections 131-132. 26

Sections 133-138. 27

Sections 139-141. 28

This account is largely drawn from the evidence of the Minister for Treaty of Waitangi

Negotiations, which was supported by a documentary record and is largely uncontroversial. But

see paragraphs [42]–[51] for Mr Roimata Minhinnick’s comments on the process followed.

advised that if the overlapping claims could not be resolved, the Minister would

make a decision based on the information received from Ngāti Tamaoho and the

overlapping claimants.

[36] Ngāti Te Ata opposed a significant proportion of the redress. Over the next

few months the two iwi tried to meet and OTS continued to offer to facilitate

resolution. OTS also sought further information from Ngāti Te Ata to assist the

Crown’s understanding of the basis of Ngāti Te Ata opposition. This information was

considered by the Minister. OTS also undertook further research which was

reviewed by an independent historian, examining overlapping interests in specific

redress sites offered to Ngāti Tamaoho, including those of Ngāti Te Ata.

[37] Ngāti Te Ata was advised of the Minister’s preliminary decision by letter on

13 July 2016, including that Ngāti Tamaoho had agreed to have the property located

at 112 Bairds Road, Otara (one of the properties under dispute) treated as

commercial rather than cultural redress. The letter noted that officials had yet to

receive specific information from Ngāti Te Ata as to why it objected to the redress

offered to Ngāti Tamaoho.29

On 4 July, Ngāti Te Ata informed OTS it would take

months to respond in writing to every site it opposed, with reasons. Ngāti Te Ata also

sought the reports relied upon by Ngāti Tamaoho, said to support their claims to the

early transfer properties. The reports were not supplied.

[38] Ngāti Tamaoho and Ngāti Te Ata met on 26 July 2016, with OTS officials

attending as observers. At this meeting, Ngāti Te Ata advised it opposed the sale of

the early transfer properties to Ngāti Tamaoho, as the whenua of Te Ata I Rehia was

buried at Matukutureia Mountain.

[39] Following further consideration of these issues, the Minister advised Ngāti Te

Ata of his final decision on 10 August 2016. The early transfer properties were then

included in the Ngāti Tamaoho Deed of Settlement that was signed on 30 April 2017.

29

Mr Minhinnick states neither he nor the Ngāti Te Ata negotiators received this request until 6

July 2016.

The Ngāti Tamaoho Deed of Settlement

[40] For present purposes, the key components of the formal Deed are:

(a) The customary historical account of Ngāti Tamaoho, acknowledgment

of, and apology by the Crown for, historical Treaty breaches.

(b) An acknowledgment that the Deed represents final settlement of

historical claims, releasing the Crown from its obligations and

liabilities.

(c) Cultural redress, including acknowledgment of Ngāti Tamaoho

cultural, spiritual, historical and traditional association with various

areas in Tāmaki Makaurau, and provision for co-governance in

respect of certain areas. Two properties, in Clarks Creek and Karaka,

are also to vest in the Ngāti Tamaoho governance entity on settlement,

with a Hūnua Falls property to vest jointly in Ngāti Tamaoho and

other iwi.

(d) Commercial redress, including a total transfer of value of

$10,300,000.

(e) Explicit terms, in cls 8.1.3, 8.3 and 9.6.1, that the transfer of certain

“early transfer properties” is not conditional on settlement legislation

coming into effect.

[41] The sale and purchase agreement for the early transfer lands was signed on

28 April 2017, the day on which the Minister gave notice under s 120.30

Ngāti Te Ata

[42] Mr Roimata Minhinnick provides a detailed account of the source of the

mana whenua of Ngāti Te Ata. He identified, among other things, the significance of

the maunga, Matukutureia, to Ngāti Te Ata as follows:31

30

It appears that the agreement pre-dated the s 120 notice by a matter of hours. This technically

infringes the RFR scheme, but I do not consider this to be material.

(a) Matukutureia is the mauri of Ngāti Te Ata, where the life-force of the

iwi resides, because the founding ancestor of Ngāti Te Ata, Te Ata I

Rehia, was born on its peak and her whenua (afterbirth) returned to

the whenua (land), embodying the notion of tangata whenua (the

people of the land).

(b) It is located at the end of Wiri Station Rd. Matukutureia was referred

to as Te Tumu Whakarae (“the seat of authority”) where great

meetings of council were held to determine the politics of the region.

It is also the place of a large battle site in which the great Ngāti Te Ata

chief Te Rangi Ha Hautu defended the pa from attack.

(c) Today, Te Mano Whenua o Matukutureia (“the heartland of

Matukutureia”) sits in the cultural shadow of Matukutureia Maunga.

The puhinui awa stream flows from the Manukau Harbour and hugs

the shoreline of Matukutureia Maunga, before drifting past Te

Manurewa o Tamapahure (“The Fling Kite of Manurewa”) and

reaching Te Mano Whenua o Matukutureia, or Barrowcliffe.32

[43] He also records:

Ko Matukutureia te mauri o Ngāti Te Ata

I reira i whanautia ai ia Te Ata I Rehia

O raro iho tona whenua i hoki panumia

I atawhai te tikanga o te tangata whenua

Hei toi ake tatou no Papatuanuku

Matukutureia enshrines the life-force of Ngāti Te Ata

It is where Te Ata I Rehia, the namesake of Ngāti Te Ata was born

And her whenua returned to the whenua

31

Mr Minhinnick is Chief Executive Officer of Te Ara Rangatu O Te Iwi O Ngāti Te Ata Waiohua

Incorporated (192008). 32

I interpret from a photo attached to this commentary that the Great South Road property sits

within this heartland.

Recognising the law that represents the people of the land

Acknowledging Ngāti Te Ata as the offspring of mother earth

[44] Mr Minhinnick also referred to the maintenance of ahi kā and kaitiakitanga

by Ngāti Te Ata.

[45] As he explained:

The issue for Ngāti Te Ata is not only how much land is available for Ngāti

Te Ata settlement when we do settle, but whether there is land available near

to the most prominent cultural feature of Ngāti Te Ata history. Our founding

ancestor, Te Ata i Rehia was born there so it is the place to which the

“mauri” of Ngāti Te Ata is squarely situated. It is also where our tupuna, Te

Rangihahautu fought to hold on to those lands and from that battle the name

of the pa was enshrined, Matukutureia, “The Vigilant Bittern Standing

Alert”.

[46] Mr Minhinnick was highly critical of the processes adopted by the Crown in

respect of both Ngāti Te Ata and Ngāti Tamaoho settlement negotiations. He refers

to, on the one hand, the unilateral decision by the Minister to pause negotiations with

Ngāti Te Ata in 2014. On the other hand, he notes that Ngāti Te Ata was only given

a few weeks to respond to OTS’s invitation to comment on the redress package.

[47] Mr Minhinnick also provided a detailed chronology of events surrounding

engagement with OTS and Ngāti Tamaoho. It is similar to the account given above,

but includes additional salient observations:

(a) On 13 June 2016, OTS requested that Ngāti Te Ata provide rationale

for its opposition to aspects of the Ngāti Tamoho settlement by 17

June 2016, but the letter was not received until 6 July 2016.

(b) Ngāti Te Ata sought kanohi ki te kanohi (face to face) dialogue with

Ngāti Tamaoho, but Ngāti Tamaoho were unwilling to address issues

about cultural associations.

(c) On 28 June 2016, OTS requested Ngāti Te Ata provide further

information, but Ngāti Te Ata responded that it would take months to

respond with reasons to every site it opposed.

(d) On 8 July 2016, Ngāti Te Ata sought reports obtained by Ngāti

Tamaoho said to support their connection to the lands. That request

was refused.

(e) On 19 July 2016, Ngāti Te Ata sought more time, but on 26 July met

with OTS and Ngāti Tamaoho and provided detailed reasons for

opposition to transfer of a number of sites including the Great South

Road site.

(f) On 27 July 2016, Ngāti Te Ata made a further request for engagement.

[48] In his reply affidavit, Mr Minhinnick responds to the report of the

independent reviewer relied on by the Minister, which was only obtained by Mr

Minhinnick as part of these proceedings. He was also highly critical of it, noting:

(a) The author of the report is not identified.

(b) There is an absence of traditional oral or kaumatua customary

evidence.

(c) The material relied upon was not put to Ngāti Te Ata. By contrast, the

material evidence of Ngāti Te Ata’s traditional belonging to the area

has been shared with the Crown.

(d) The historical evidence supports the conclusion that Ngāti Te Ata’s

interests are older and greater than those asserted by Ngāti Tamaoho.

[49] Mr Minhinnick also provided a history in support of Ngāti Te Ata’s superior

ancestral claims to the early transfer properties, referring to historical records. By

way of summary Mr Minhinnick referred to:

(a) Historical records said to establish Ngāti Te Ata’s connection to

properties at Te Karaka and Pukekohe and by contrast, illustrate the

illegitimacy of claims by Ngāti Tamaoho to those lands.

(b) Evidence that Ngāti Tamaoho had attempted sale of land with which

they had a dubious customary connection, including land at Kahawai

and Ramarama.

(c) Historical records said to support the customary basis for the

relationship of Ngāti Te Ata with the Tuhimata Block, near

Ramarama.

(d) Historical accounts of tensions between Ngāti Te Ata and Ngāti

Tamaoho, together with minutes from Crown officials cautioning

against purchase of land without consent of Ngāti Te Ata.

(e) Armed conflict in 1845 and 1846 between Ngāti Te Ata and Ngāti

Tamoho, Ngāti Te Ata victory, and reports that Ngāti Te Ata reclaimed

Pehiakura from Ngāti Tamaoho.

(f) Accounts that following this conflict Ngāti Tamaoho recommenced

selling land from which they had been ousted, and for which they no

longer had any claim in tikanga Māori.

(g) Records showing the Crown was aware of Ngāti Te Ata claims to the

land Ngāti Tamaoho purported to sell.

[50] Finally, Mr Minhinnick complains that the Crown has not afforded sufficient

time and/or opportunity for a collective, consensus based process in accordance with

tikanga for dealing with the early transfer properties. Finally, he observed that none

of the witnesses for Ngāti Tamaoho identified the basis of their claim in tikanga to

the early transfer properties.

Is the decision by the Minister to dispose of the properties for the purpose of an

individual Treaty settlement justiciable?

[51] Mr Kinsler identified two bases for non-justiability:

(a) the principle of non-interference, as the lands form part of the

background to a Settlement Bill which is currently before Parliament;

and

(b) the decision to require lands for a Treaty settlement is the proper

domain of the Executive, not the judiciary, being a matter which is

quintessentially policy driven.

[52] It is well settled that matters contemporaneously before Parliament are non-

justiciable.33

But as Mr Kinsler quite properly noted, the Crown elected to use the

early transfer procedure rather than give effect to transfer through the Ngāti

Tamaoho Settlement Bill. While the transfers form part of the background to the Bill,

they are not subject to the Parliamentary process, so the standard principle of non-

justiability based on non-interference with Parliamentary processes has no obvious

application.

[53] The second ground or principle Mr Kinsler relies on was described recently

by the Supreme Court in Ririnui:34

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.

[54] The Treaty context itself however does not preclude review.35

In the present

case the decision to require RFR land for an individual Treaty settlement

extinguishes, by way of the notice procedure contained in s 120, the right of first

refusal in respect of those lands enjoyed by the Limited Partnership and rōpū groups.

Put simply, it is a decision to take away a legal right of first refusal conferred by

statute.36

While I accept, absent a clear error of sort present in Ririnui,37

the merits of

33

Te Runanga o Wharekauri Rekohu v Attorney-General [1993] 2 NZLR 301 (CA) at 307-308. 34

Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [89]. 35

At [90]. 36

It is unnecessary to explore the exact nature of the right of first refusal. The Court of Appeal in

Bruce v Edwards [2003] 1 NZLR 515 (CA) at [54] observed that “the prevailing judicial opinion

is that a right of first refusal does not give rise to an interest in land before the occurrence of a

triggering event”. But in the present case, the right of first refusal is memorialised on the

a decision to settle a Treaty claim are typically non-justiciable for the reasons

mentioned in that case, the legality of the s 120 notice, in terms of conformity with

the requirements the Collective Redress Act, is a reviewable matter.38

Does the Minister have the power to dispose of RFR land for the purpose of an

individual Treaty settlement?

[55] Mr Kahukiwa for Ngāti Te Ata contends:

(a) The primary purpose of Collective Redress Act is to give effect to the

Collective Redress Deed which provides for shared redress for the

Tāmaki Collective. Part of that shared redress is a statutory first right

of refusal.

(b) The Act does not confer an express power on the Minister to remove

RFR land: s 120 is simply a notice provision, not an empowering

provision.

(c) No power to remove RFR land should be implied into the s 120 notice

procedure, given the Act’s purpose to achieve collective redress and

the RFR mechanism conferred by the Act.39

(d) This is reinforced by the background to the Deed and the Act, and in

particular the heavy criticism by the Tribunal of the Crown’s previous

approach, which gave exclusive rights to one group:40

The use of ‘predominance of interests’ as a basis for giving exclusive

rights in cultural sites to one group – even when other groups have

affected titles, connoting a legal interest in land.

37 Ririnui v Landcorp Farming Ltd, above n 34, at [90]-[91]. In that case, the Minister had

exercised a public power “based on a material error”, and consequently, had no regard to any

additional policy considerations. 38

The Supreme Court in Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015]

NZSC 27, [2016] 1 NZLR 1, dealing with the Canterbury Earthquake Recovery Act 2011,

emphasised the reviewability of Crown action where the legislation “covers the field”. See

[109]-[146]. By analogy, this principle applies to redress facilitated by the Collective Redress

Act. 39

Mr Kahukiwa, assisted by Mr Kwan-Parsons, cited Bluff Harbour Board v Mayors, Councillors,

and Burgesses of the Borough of Campbelltown (1903) 23 NZLR 126 as authority for this

proposition. 40

Waitangi Tribunal, above n 4, at 96-97.

demonstrable interests that have not been properly investigated – is a

Pākehā notion that has no place in Treaty settlements. Where there

are layers of interests in a site, all the layers are valid. They derive

from centuries of complex interaction with the whenua, and give all

the groups with connections mana in the site. For an external agency

like The Office of Treaty Settlements to determine that the interests

of only one group should be recognised, and the others put to one

side, runs counter to every aspect of tikanga we can think of. …

(e) As such, “the power” rests with all the parties to the collective deed

by virtue of the mutuality of their agreement.

[56] Mr Kinsler for the Minister responds s 120 plainly assumes a power to

remove the RFR land for individual Treaty settlement purposes exists. He adds it

gives effect to cls 6.3 and 6.4 of the Collective Redress Deed.

Assessment

[57] The “absence of power” argument misconceptualises the key issue. Section

120 is a notice provision, the plain effect of which removes identified properties

(such as the early transfer properties) from the RFR scheme. The sole express

statutory criterion for issuing notice is that the land is required for an individual

Treaty settlement. A “power” to remove or dispose of the land is not therefore a

requirement for the purpose of removal of land from the RFR scheme. It occurs by

operation of statute.

[58] To elaborate:

(a) Section 118(2)(d) expressly provides “RFR land required for another

Treaty settlement” ceases to be RFR land once notice is given under s

120.

(b) Section 120 imposes a duty on the Minister to give notice to the RFR

landowner and the Limited Partnership that land ceases to be RFR

land when it is required for another Treaty settlement.

(c) Once the Minister’s notice is given, the RFR landowner must give

notice to the chief executive of LINZ that the land ceases to be RFR

land.41

(d) The chief executive must issue to the Registrar-General a certificate in

respect of the property and the s 120 notice.42

(e) The Registrar-General must then remove any memorial on the title

identifying the land as RFR land.43

[59] This scheme gives effect to cls 6(3) and (4) of the Collective Redress Deed,

reinforcing the conclusion that the literal effect of ss 118(2)(d), 120, 145(5) and

149(2) was intended.

[60] In Bluff Harbour, cited by Mr Kahukiwa, Williams J granted an injunction

against a purported exercise of a statutorily conferred power to compulsorily acquire

land to construct waterworks. The Council had previously granted a licence to use

the affected lands for the purpose of waterworks, and sought to use the power to take

over the existing waterworks. In reaching this conclusion, the Judge cited the rule of

interpretation laid down by Lord Cottenham and approved by Lord Westbury in

Simpson v Staffordshire Waterworks Company that it is incumbent upon the company

seeking to take land:44

… to prove clearly and distinctly from the Act of Parliament the existence of

a power which they claimed a right to exercise; and if there was any doubt

with regard to the extent of the power claimed by them that doubt

undoubtedly should be for the benefit of the landowner, and should not be

solved in a manner to give the company any power that was not most clearly

and expressly defined in the statute.

[61] The policy of the law to narrowly construe enactments purporting to enable

compulsory acquisition of property is undoubted.45

But this case is not about the

41

Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 145(5). 42

Section 149(2). 43

Section 149(5). 44

Bluff Harbour Board v Mayors, Councillors, and Burgesses of the Borough of Campbelltown,

above n 39, at 129, citing Simpson v Staffordshire Waterworks Company 34 LJ Ch 380. 45

Waitakere City Council v Estate Homes [2006] NZSC 112, [2007] 2 NZLR 149 at [45], citing

Taggart, “Expropriation, Public Purpose and the Constitution”, in Forsyth (ed), The Golden

Metwand and the Crooked Cord (1998), 104-105. In this case, however, the Supreme Court

compulsory taking of land by the Crown. Rather, the Crown is simply removing

Crown land from the RFR scheme to settle an individual Treaty claim. It needs no

additional “power” of the kind lacking in those cases. The early release of the two

properties under the Collective Redress Act is simply a function of the giving of

notice pursuant to s 120, with no antecedent requirement to exercise a statutory

power of removal or disposal. The real issue, addressed below, is whether the

Crown’s decision to require RFR land for an individual Treaty settlement is fettered

by the Collective Redress Act.

[62] If Mr Kahukiwa were to advance a broader challenge, namely that the

Minister does not have a power per se to dispose of Crown lands for Treaty

settlement purposes, I would reject it for the reason stated by Mr Kinsler. The

existence of a power to dispose of Crown lands for Treaty settlement purposes is

plainly assumed by the Collective Redress Deed and the Act and is incidental to their

effective operation, including for the purpose of requiring RFR land for individual

Treaty settlements.46

[63] Accordingly, the claim based on absent power is dismissed.

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?

[64] Mr Kahukiwa submits the entire purpose of the Collective Redress Deed and

Act was to enable specified lands to be managed through a collective iwi process so

that mana whenua could be properly recognised in accordance with tikanga. This, he

says, gave effect to the directions given by the Waitangi Tribunal and the intentions

of the Tāmaki Collective. The individual Treaty settlement exception contemplated

at cl 6 of the Deed and s 120 of the Act has to be interpreted and applied in light of

noted that the ordinary application of planning law does not extinguish existing rights because it

does not constitute a “taking”. 46

See R (New London College Ltd) v Home Secretary [2013] UKSC 51, [2013] 1 WLR 2358 at

[28]-[29], per Lord Sumption, and [34]-[36], per Lord Carnwath. See also Philip Joseph

Constitutional and Administrative Law in New Zealand (4th

ed, Thomson Reuters, Wellington,

2014) at [18.3.3(3)]. The power to dispose of land in this context may also derive from the

prerogative of the Crown to discharge its obligations arising under the Treaty. In terms of

prerogative powers, see Laker Airways Ltd v Department of Trade [1977] QB 643 (CA). As this

aspect was not argued before me, I do not reach a final view.

this purpose. The error made by the Attorney-General was to remove the two early

transfer properties for Ngāti Tamaoho’s Treaty settlement without first exhausting

the collective diplomacy required by the Act, in accordance with tikanga. In these

circumstances, Mr Kahukiwa claims the s 120 notice was unreasonable.

[65] Mr Kinsler responds that the ability to remove land from the RFR scheme

for individual Treaty settlements was always intended by the signatories of the Deed.

He also contends:

(a) Ngāti Te Ata’s approach effectively amounts to a veto preventing the

vesting of land for individual Treaty settlement purposes.

(b) A veto of this kind would have been a very notable aspect of the

collective redress agreed to, and one would expect the Collective

Redress Deed or Act to record it.

(c) By contrast, the Deed and the Act expressly envisage that RFR land

may be required for an individual Treaty settlement and provide a

process for that to occur.

Threshold test

[66] Ordinarily a decision will be unreasonable in a public law sense if it is so

unreasonable that no reasonable decision-maker could ever have reached it in the

circumstances. This test is known as the Wednesbury unreasonableness test.47

However, the Wednesbury reasonableness test has been doubted,48

particularly in

cases involving fundamental rights. The courts tend to be less tolerant of Crown

47

Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223; see

also Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA). 48

Most recently, in Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR

508, an alternative formulation of this threshold, consistent with the grounds on which the court

will identify an error of law (as stated in Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3

NZLR 721 at [26]) has been proposed: see Hu at [22]-[32]. On this formulation, a decision will

be unreasonable where the decision-maker’s decision is so unsupportable as to amount to an

error of law, because proper application of the law requires a different answer. This may arise

where the decision is not supported by evidence, where the evidence contradicts the decision, or

where the only reasonable conclusion contradicts the determination.

interference with such rights.49

As this aspect was also not fully argued, I will adopt

the most favourable approach to Ngāti Te Ata.

Assessment

[67] As Mr Kahukiwa submits, in general terms the purpose of the Collective

Redress Act is to enable shared redress via specified processes for dealing with

Crown land in Tāmaki Makaurau. This is evident from the background to the Act,

including the Tribunal claim and report,50

the Collective Redress Deed, the Act’s

purpose section, and the detailed and carefully scripted scheme of the Act as it

relates to various forms of redress. An interpretation of the Act, including s 120 and

related sections, that is consistent with this purpose, is to be preferred, as is one that

best furthers the Collective Redress Deed.51

[68] But the object and effect of cl 6 of the Deed and s 120 is clear. It is a notice

provision. It imposes a duty, not a discretionary power, on the Minister to notify the

RFR landowner and Limited Partnership that specified land is required for an

individual Treaty settlement. Provided the land is required for that type of settlement,

once notice is issued the land ceases to be RFR land. There is no room to overlay the

explicit words at s 120 with an additional collective decision-making process once

the decision to require specified land for an individual Treaty settlement has been

made.

[69] Similarly, a decision to require land for an individual Treaty settlement

cannot be unreasonable simply because another iwi may have a genuine tikanga

based interest in that land, and because consensus is not achieved. I agree with Mr

Kinsler that would effectively amount to a veto, disenabling the use of land for

individual Treaty settlements. This cannot be right, given the clear effect of s 120 of

the Act and cl 6(3) of the Deed.

49

See Philip Joseph, above n 46, at [24.2], [24.5.1]. 50

It should be noted that the claim in relation to commercial redress was primarily concerned with

providing all iwi with sufficient information about available commercial redress. Notably, the

primary recommendation pertaining to commercial redress was: “With respect to commercial

redress, we recommend that the Crown funds the other tangata whenua groups in Tāmaki

Makaurau to enable them to analyse the redress on offer to Ngāti Whātua o Orākei, and form a

view on what other available commercial redress is comparable.” See Waitangi Tribunal, above

n 4, at 108. 51

Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 7.

[70] This disposes of the pleaded claims. However, for completeness, I have

examined whether the Minister has otherwise acted in good faith and reasonably. In

doing so, I apply a standard which is not so obviously discordant with the scheme.

Was the Minister’s decision otherwise unreasonable?

[71] The requirements of good faith and reasonableness in this context are not

capable of precise definition and, in any event, were not fully argued. But, again

adopting an approach favourable to Ngāti Te Ata, there is a principled basis for the

proposition that the Minister could not in good faith52

or reasonably trigger the s 120

notice procedure without first considering the claims of other iwi with a genuine

interest in the RFR lands, and to the extent practical, facilitating them.53

As the

Tribunal observed, in awarding land as commercial redress, the Crown should

account for the possible consequences for other iwi and hapū with cultural ties to

that area.54

Section 7 of the Collective Redress Act explicitly directs readers to

interpret it in a manner that “best furthers the agreements expressed in the collective

deed”. Furthermore, context permitting, the Treaty of Waitangi is an aid to

interpretation.55

It is difficult to think of a more permissible context, absent express

incorporation. It can be assumed therefore operation of s 120 was not intended to

facilitate breach of the Crown’s duties under the Treaty to other iwi and hapū with

genuine tikanga based interest in land in dispute.

[72] Having reviewed the evidence, I am satisfied the Minister acted in good faith

and reasonably. First, the Minister was well aware of Ngāti Te Ata concerns and

endeavoured to facilitate consensus between Ngāti Te Ata and Ngāti Tamaoho.

Second, OTS sought information from Ngāti Te Ata to assist the Crown

52

The requirement to exercise statutory powers in good faith is uncontroversial: Westminster

Corporation v London and North Western Railway Co [1905] AC 426 (HL) at 430. It is also

consistent with policy of the law (mentioned at [58] above) that powers extinguishing property

rights should be construed narrowly. 53

This aligns with the approach taken by the Supreme Court in Quake Outcasts v Minister for

Canterbury Earthquake Recovery, above n 38. The Court found that the Crown’s ability to deal

with “red zone” land in Christchurch was subject to the requirements of the Canterbury

Earthquake Recovery Act 2011: see [109]-[146]. The Court also found that, in conformity with

the Act’s purpose to provide for the recovery of greater Christchurch communities, the recovery

of the red zone communities had to be considered, and to the extent practical, facilitated: see

[172]-[181]. 54

Waitangi Tribunal, above n 4, at 99. 55

Ngaronoa v Attorney-General [2017] NZCA 351 at [39]-[52] and the cases cited therein.

understanding of the basis of Ngāti Te Ata’s opposition to the proposed redress, and

the Minister considered the information provided. Third, further research was

undertaken by OTS into the customary interests of both iwi in the specific early

transfer sites that Ngāti Te Ata had challenged. Fourth, this research was reviewed

by an independent historian. Fifth, modifications were made to Ngāti Tamaoho’s

settlement package to meet concerns raised by Ngāti Te Ata, including the

recategorisation of the Bairds Road property as commercial rather than cultural

redress.

[73] Sixth, Ngāti Te Ata was given the opportunity to comment on the Minister’s

proposed settlement package and the preliminary conclusion reached by the Minister,

namely that Ngāti Tamaoho had a sufficient interest in the sites to warrant the

Crown’s offer of redress and that the Crown considered there was sufficient

alternative commercial redress properties available for Ngāti Te Ata in Tāmaki

Makaurau. Seventh, Ngāti Te Ata also had a further opportunity to meet with Ngāti

Tamaoho to resolve their respective claims. Eighth, the Minister was aware that

Ngāti Te Ata identified the early transfer properties as sites of particular cultural

significance, as the whenua of Te Ata I Rehia was buried at Matutukureia

Mountain.56

[74] I acknowledge the forthright criticism made by Mr Minhinnick about the

process adopted, the Crown research and the basis for the claim made by Ngāti

Tamaoho in respect of the early transfer properties. But it must be remembered that

this is a judicial review proceeding, not a merits appeal. It is not enough to present

evidence that might support a different outcome. The decision must be shown to be

unreasonable. In this context, I am able to deal with Mr Minhinnick’s criticisms

briefly.

56

Other evidence also supports this. Mr Michael Dreaver, former Chief Negotiator for Tāmaki

Makaurau, Hauraki and Kaipara-Mahurangi, acknowledged the transfer of properties in iwi

specific settlements “has involved due thought and consideration by the Crown”, and that “the

Crown has considered any objections and in some cases made changes to individual settlement

offers”. On the evidence of Mr Dennis Kirkwood, trustee and Deputy Chairperson of the Ngāti

Tamaoho Settlement Trust, Ngāti Tamaoho has previously ceased claims in respect of other sites

due to contrary claims by other iwi, including Ngāti Te Ata.

[75] The competing customary claims of Ngāti Te Ata and Ngāti Tamaoho

concern matters of considerable historical complexity and on which competing

views can be validly held. Ultimately, there was a sufficient basis upon which the

Minister could conclude that Ngāti Tamaoho had a legitimate historical connection to

the early transfer properties. Indeed, Mr Minhinnick acknowledged that Ngāti

Tamaoho had connection to the affected rohe through its whakapapa links to Ngāti

Te Ata.57

[76] Furthermore, for the purpose of judicial review, it was well within the remit

of the Minister, both as to the assessment of fact and in terms of competing

historical, cultural and policy considerations, to reach the conclusion that,

notwithstanding the ancestral connection of Ngāti Te Ata to the early transfer

properties, they should be required for settlement of the individual claim by Ngāti

Tamaoho as commercial redress.

[77] Finally, contrary to the premise implicit in Mr Minhinnick’s criticism, the

Minister was not, in the context of commercial redress, engaged in a definitive

evaluation of the relative strength of competing interests for the purpose of

allocating lands to iwi with stronger claims. To do so would invite the type of

criticism levelled at the Minister by the Tribunal in The Tāmaki Makaurau

Settlement Process Report, for adopting a “predominant” interest approach to

recognition of customary interests. Once this is properly understood the significance

of Mr Minhinnick’s criticisms are greatly diminished and fall short of showing

unreasonableness or lack of good faith of a reviewable kind.

[78] For avoidance of doubt, what I say here should not influence what the

Tribunal might think about the process adopted on a full inquisitorial analysis, in

light of the principles of the Treaty of Waitangi.

Outcome

[79] The Minister’s decision is justiciable.

57

Reinforcing the legitimacy of their proposed commercial redress, there is also evidence that in

terms of the RFR process, Ngāti Tamaoho was the only iwi to signal an interest in the Bairds

Road site: Affidavit of Christine Hertzog in Opposition to Application for Judicial Review, dated

22 June 2017, at [7].

[80] No power of disposal was required for the purpose of triggering the s 120

procedure, but in any event, the existence of a power to dispose of Crown land for

Treaty settlement purposes in this context is reasonably incidental to the effective

operation of the Collective Redress Act, including s 120.

[81] The Minister’s decision to require the early transfer properties for an

individual Treaty settlement was not unreasonable.

[82] Accordingly, the application for review is dismissed.

[83] The interim declaration made at hearing is set aside.

Costs

[84] As requested by the parties, leave is reserved to file submissions on costs, no

longer than three pages in length, if costs cannot be agreed.