Chapman Tripp’s Chief Executive Partner Nick Wells, Partner Justin Graham, and Senior Associate Laura Fraser discuss the recent landmark case of Ngati Whatua Orakei’s Trust v Attorney-General  NZSC 84. The precedent that Crown conduct in negotiating Treaty settlements is judicially reviewable has been set, they write.
This Supreme Court decision will reshape expectations on central government, local government and the Waitangi Tribunal on their approach to dealing with iwi interests.
The decision, allowing Ngati Whatua Orakei to continue to argue their legal rights as mana whenua in the Tamaki isthmus and continuing to establish the place of tikanga in the common law of New Zealand, also makes it easier to challenge ministers’ decisions.
The precedent that Crown conduct in negotiating Treaty settlements is judicially reviewable has been set, and this has far-reaching effects for government and those who engage with it – as well as for iwi and hapu. Downstream, it may also affect the way local government consults with Maori.
Ngati Whatua Orakei’s Treaty settlement
Ngati Whatua Orakei’s Treaty settlement with the Crown was concluded by legislation in 2012. The settlement recognised widespread Crown alienation of Ngati Whatua Orakei’s land in the Tamaki isthmus, notably including Ngati Whatua Orakei’s gifting of 3,000 acres of land in central Auckland in 1840 (including Auckland CBD, Parnell and Orakei) to forge a relationship with the Crown – the first alienation of many. By 1855, Ngati Whatua Orakei was basically landless, with devastating social, economic and spiritual implications for the iwi.
In Ngati Whatua Orakei’s Treaty settlement, the Crown promised to rebuild a relationship with Ngati Whatua Orakei and atone for its historical sins based on the principles of the Treaty.
Further settlements under the “overlapping claims policy”
The Crown is presently negotiating further Treaty settlements with other iwi in the Tamaki isthmus and, in doing so, is applying the “overlapping claims policy”. When multiple iwi lay claim to a particular area, the Crown encourages them to resolve it among themselves; if they can’t, the Crown then makes a decision. Many iwi view this as a pragmatic approach rather than one based on historical accuracy or tikanga.
Without consultation, in late 2014, the Crown offered land to Ngati Paoa and the Marutuahu Collective in areas where Ngati Whatua Orakei asserts mana whenua (the transfer properties). Importantly, Ngati Whatua Orakei’s Treaty settlement had already recognised its interest in these areas.
Ngati Whatua Orakei’s judicial review claim
Ngati Whatua Orakei launched judicial review proceedings against the Minister of Treaty of Waitangi Negotiations (then Christopher Finlayson) to challenge the Minister’s decision to transfer particular properties to Ngāti Paoa and the Marutuahu Collective.
To evade this challenge, the Crown un-made its decisions, saying the offer of properties was to be subject to Parliamentary approval. It then sought to strike out Ngati Whatua Orakei’s claim on the basis that it was covered by the “non-interference principle”, which prohibits the courts from dictating what Parliament can and cannot consider.
That strategy proved fruitful in the High Court, which struck out Ngati Whatua Orakei’s claim. The Court of Appeal upheld that decision. Both Courts relied on the non-interference principle, saying that Ngati Whatua Orakei’s rights would only be affected by legislation and so the Crown’s conduct could not be challenged.
THE SUPREME COURT SAYS IWI SHOULD HAVE ACCESS TO THE COURTS
The decision in a nutshell
The result of the decision is that central government, local governement and the Waitangi Tribunal may have to take care to consider the relative rights of iwi and hapu when making decisions affecting Maori. For the Office of Treaty Settlements (OTS), this will require a reconsideration of its approach to Treaty settlements. Iwi and hapu with material, ongoing rights may be able to judicially review OTS’s conduct during Treaty settlement negotiations moving forward.
The Supreme Court, unlike the lower courts, held that Ngati Whatua Orakei should be permitted to return to the High Court to have its substantive rights established.
Office of Treaty Settlements held accountable – limiting the non-interference principle
The Court unanimously limited the scope of the non-interference principle. It did so for two reasons:
- First, the function of the courts is to hear and make declarations about rights; correspondingly, iwi ought to have access to the courts where they consider their status rights in an area are in issue. The courts should be cautious about washing their hands of this constitutionally important function.
- Second, the non-interference principle exists to protect freedom of expression in Parliament, and, as an extension of that, to ensure Ministers are free to put what they please before Parliament. It should not be extended beyond this function. Just because a decision of the Executive may potentially be overtaken by legislation does not mean it is unreviewable.
This limitation of the non-interference principle has significant consequences for the Crown when it negotiates Treaty settlements. OTS will have to take care to ensure its procedures properly take into account, among other things:
- the principles of the Treaty of Waitangi, and
- the rights of settled iwi and hapu.
This decision allows Ngati Whatua Orakei to return to the High Court for a full trial with detailed evidence on ahi ka and mana whenua. Factual findings on customary interests will undoubtedly feed into how local government consults with Ngati Whatua Orakei and other iwi in the future. Such findings will feed directly into what iwi entities are appropriate to consult for different projects.
The trial will also include a head-on challenge of the overlapping claims policy. With many iwi and hapu calling for reform of the overlapping claims policy, it remains to be seen how the Crown will respond to this judgment. The threat of judicial review by iwi will certainly be of central concern and may tilt the scales towards reform.
Chapman Tripp partners Nick Wells and Justin Graham, senior associate Laura Fraser, and solicitors Rachael Jones and Aditya Vasudevan, have represented Ngati Whatua Orakei at all levels of the courts in this matter.
Nick Wells is Chapman Tripp’s Chief Executive Partner (Hoa Rangapu Whakarae) responsible for the overall leadership of the firm and driving the firm’s strategy and growth. Nick’s role covers all aspects of the firm’s business and professional responsibilities including client development, partner management and development, and leading the senior management team. He also sits on the firm’s board. In addition to his role as Chief Executive Partner, Nick is a leading expert on corporate structuring for Maori, private equity, businesses and charities and will remain Kaihautu of Chapman Tripp’s Maori Legal Group, Te Waka Ture. The group specialises in providing commercial legal advice to iwi and Maori organisations, and those looking to work with them – focusing specifically on post-Treaty settlement transactions, joint ventures and collective iwi arrangements. He is an Adjunct Professor at the University of Auckland Law School, responsible for the iwi governance courses at undergraduate and Master’s level. Contact Nick at [email protected]
Justin Graham specialises in commercial litigation, intellectual property, iwi governance issues, insurance, privacy and technology, media and telecommunications. Justin is experienced at managing and resolving complex commercial litigation and disputes. He has frequently appeared as counsel in civil proceedings in the High Court and Court of Appeal, and in international and domestic arbitrations, and specialist tribunals such as the Intellectual Property Office of New Zealand. He is experienced at handling claims and policy matters for insurers and reinsurers, as well as in forms of alternative dispute resolution. Justin is a member of Te Waka Ture, our Maori Legal Group. He lectures at the University of Auckland and is the author of the New Zealand chapter of International Copyright Law published by Globe Law and Business. Contact Justin at [email protected]
Laura Fraser advises clients on a broad range of commercial disputes, including corporate and regulatory matters, as well as general contract and tort issues. Laura specialises in the conduct of complex commercial litigation. She has appeared in the Supreme Court, Court of Appeal and High Court, and has acted in alternative dispute resolution forums. She has particular expertise in contentious private and public law, including insurance disputes, directors’ liability claims, regulatory litigation and administrative law claims. Contact Laura at [email protected]