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Editors --- "Te Runanga o Ngai Tahu v Waitangi Tribunal - Case Summary" [2002] AUIndigLawRpr 45; (2002) 7(3) Australian Indigenous Law Reporter 34

Court and Tribunal Decisions – New Zealand

Te Runanga o Ngai Tahu v Waitangi Tribunal

High Court of New Zealand

4 April 2001

[2001] 3 NZLR 87

Maori land claims — Waitangi Tribunal — overlapping claims — natural justice — right to be heard — Maori Appellate Court — Ngai Tahu Claims Settlement Act 1998 (NZ) — Commissions of Inquiry Act 1908 (NZ)

Facts:

From 1986 Ngai Tahu applied to the Waitangi Tribunal for determination of claimed breaches of the Treaty of Waitangi by the Crown in the South Island. Cross-claims were lodged by various iwi of Te Tau Ihu, from the northern tip of the South Island, which overlapped with the Ngai Tahu claim. The Tribunal referred the resolution of these differences to the Maori Appellate Court. In 1990 that Court ruled that ‘ownership’ of the land in dispute lay with Ngai Tahu alone. The Waitangi Tribunal thus heard the Ngai Tahu claim on that basis and, from February 1991, issued reports accepting that the Crown had committed substantial breaches of the Treaty. After negotiations, Ngai Tahu and the Crown agreed on a deed of settlement and implementing legislation, including the Te Runanga o Ngai Tahu Act 1996 (NZ) and the Ngai Tahu Claims Settlement Act 1998 (NZ).

In 1997-98 Te Tau Ihu iwi filed claims with the Waitangi Tribunal based on asserted territories that extended into the areas covered by the Ngai Tahu settlement, in some cases substantially. In 1998 one Te Tau Ihu iwi also sought judicial review of the 1990 Maori Appellate Court decision. The substantive proceedings had not been heard when the current case was being decided.

Ngai Tahu sought the right to be heard at the Waitangi Tribunal hearings of the Te Tau Ihu iwi claims. The Tribunal made rulings as to jurisdiction and as to procedure. In particular, the Tribunal ruled that Ngai Tahu was to be sent all documents — including submissions — relating to the inquiry. Also Ngai Tahu was allowed to ‘maintain a watching brief at each of the Te Tau Ihu iwi hearings and attend and participate in all judicial conferences’. However ‘Ngai Tahu will have no rights to cross examine during the course of claimants’ evidence or to make submissions during the course of claimant hearings’. Only after Te Tau Ihu have presented their claim fully could Ngai Tahu request leave to cross-examine or make submissions on the overlapping claims areas.

Ngai Tahu brought an application for judicial review against the tribunal rulings as to jurisdiction and procedure.

Held per McGechan J, upholding the appeal in part:

1. The Waitangi Tribunal had jurisdiction to hear claims by Te Tau Ihu, even if those claims asserting historic interests were within the statutorily defined Ngai Tahu land areas. The Treaty of Waitangi Act 1975 (NZ), the Te Runanga o Ngai Tahu Act 1996 (NZ) and the Ngai Tahu Claims Settlement Act 1998 (NZ) were linked and should be construed together in light of any relevant New Zealand Bill of Rights Act 1990 (NZ) and Treaty of Waitangi requirements. Those Acts effected final settlement between Ngai Tahu and the Crown, and no one else; they had not removed the jurisdiction of the Waitangi Tribunal to hear overlapping claims: [75], [92], [94], [95]. Ngati Apa Ki Te Waipounamu Trust v The Queen [2000] NZCA 45; [2000] 2 NZLR 659 (CA) followed.

2. Ngai Tahu has a special interest in maintaining its claim against any conflicting claims. Ngai Tahu is entitled to appear and be heard on any Te Tau Ihu iwi claim which asserts the existence of interests within the Ngai Tahu settlement area according to s 4A of the Commissions of Inquiry Act 1908 (NZ). Where it is not clear whether a conflicting interest is asserted by the claim, that right is provisional. Ngai Tahu is to be allowed at a minimum to be present on a watching brief: [126], [128], [131], [133].

3. The tribunal could deal with the question of jurisdiction both on a claim by claim and an issue by issue basis. Further directions could be given and procedures determined when issues were identified: [126], [128], [131], [133].

4. Because of Waitangi Tribunal resources, it could take three years or more to hear all Te Tau Ihu claims. If Ngai Tahu will not be heard on a claim until after such time, then Ngai Tahu will be expected to cross-examine too long after the event to be effective. Such a delay in exercise of a right to cross-examine is a breach of natural justice. ‘Ngai Tahu’s claimed interests are under attack. That is not to be brushed aside or regarded as of lesser importance. When Te Tau Ihu iwi attack, Ngai Tahu is entitled to a reasonable opportunity to defend. It is not to the point that it has already had its own claims dealt with. This is a new threat’: [107], [141].

5. A declaration could be made that a proposed course of action would be contrary to natural justice. The tribunal decision had been made and if it proceeded there would be a breach of natural justice. This was not a mere hypothetical case and futurity did not preclude relief: [146].

6. Obiter: ‘[T]he Waitangi Tribunal was set up as an avenue for exploration of complaints of breach of the Treaty, and recommendations for remedial action where such breaches were found to have occurred. Systemic delays on the present scale prevent proper discharge of that function. The solutions lie with government and ultimately with parliament. They are political matters. There are also treaty dimensions. The Treaty does not envisage a treasury with a bottomless purse, and it is for the Crown to decide upon allocation of resources given competing needs ... It is not for the Court to say more resources must be allocated above other needs but ... this case illustrates the tribunal is not being resourced to operate, and is not able to operate, in a satisfactory manner’: [161].

7. Obiter: ‘[T]he whole unhappy difficulty ... arises from the inadequacy of the tribunal’s resources. Quite simply, the tribunal needs sufficient personnel, and sufficient funding, to provide hearing time within an acceptable and just time frame. Let no one think this Court has solved problems with this decision. It has not. It has organised within the problem, but the only solution involves substantially increased delays which will cause deep concern’: [160].

Order:

Declaration granted in respect of seventh cause of action (re natural justice): other claims dismissed.??