A few weeks ago I posted a brief comment on the recent decision in Attorney-General v Te Kenehi Mair and Ors, a case that related to the procedure of the Waitangi Tribunal. Another decision relating to the Waitangi Tribunal’s procedure was also delivered late last year. Haronga v Waitangi Tribunal and Ors was heard in the High Court at the beginning of December and Justice Clifford delivered his judgment a couple of days before Christmas.
As with Te Kenehi Mair, the subject of this case was a decision of the Waitangi Tribunal to decline an urgent hearing of the applicant’s claim. In each case, the application for an urgent hearing had been sought because of an imminent settlement agreement which the applicant argued would prejudice the claim at issue. In Haronga, the application for an urgent hearing was made in September 2009 in light of Crown advice that the Crown and Te Manu Whiriwhiri (a body comprised of several mandated groups from throughout the Gisborne region) intended to initial a deed of settlement in December 2009. Mr Haronga sought an urgent hearing before the Waitangi Tribunal to address remedies for Treaty breaches specifically in relation to the Mangatu State Forest. Mr Haronga argued that redress in relation to these breaches should be addressed through the Mangatu Incorporation and that none of the groups within Te Manu Whiriwhiri had the mandate to agree a settlement in relation to those specific issues. It should be noted that the question of remedy for claims relating to Crown forest land can raise distinctive issues because this is one area in which the Tribunal can make binding orders.
The Waitangi Tribunal has developed a range of criteria to be considered when determining whether to grant an urgent hearing and also criteria to be considered when determining whether to grant a remedies hearing subsequent to the substantive inquiry of the claim at issue. After considering both sets of criteria, Judge Clark, in the Waitangi Tribunal, declined Mr Haronga’s application for an urgent hearing. Judge Clark reasoned that the Waitangi Tribunal had heard the substantive claims relating to the Mangatu forest as part of the Turanganui-a-Kiwa inquiry and had not seen fit to make a binding recommendation that the forest lands be returned at that stage, rather emphasizing in the Turanga Tangata, Turanga Whenua report that it would be appropriate to settle the claims in that inquiry through district-wide negotiation that involved the groups that comprise Te Manu Whiriwhiri. Judge Clark also reasoned that, on the two occasions in the past when the Tribunal had held remedies hearings, that was only after settlement negotiations had broken down. That was not the case here. Further, the shareholders of Mangatu Incorporation would not be denied a remedy for this claim because they were all members of one of the groups within Te Manu Whiriwhiri and so would benefit from the proposed settlement in that capacity.
Mr Haronga’s judicial review application before Justice Clifford in the High Court was primarily based on the premise that the Waitangi Tribunal’s statutory powers to make binding recommendations in relation to Crown forest land gives raise to a process which is quite separate from ordinary settlement negotiations. Therefore, Mr Haronga contended that, in refusing an urgent hearing for the reasons set out by Judge Clark, the Waitangi Tribunal was effectively deferring, unlawfully, to the Crown’s settlement processes. Mr Haronga also claimed that none of the groups within Te Manu Whiriwhiri held a mandate in relation to the Mangatu Forest issues and, in any case, the claim relating to remedies was distinct from the substantive claims that were heard in the Turanga inquiry.
In his judgment, Justice Clifford dismissed the application for judicial review, finding that the Tribunal’s determination was lawful. The Tribunal, when determining whether to grant a remedies hearing, is entitled to consider whether settlement negotiations are ongoing or stalled and whether or not a remedies hearing will assist with the resolution of the claim in question. It was not unlawful for Judge Clark to consider these matters in this particular case. Furthermore, it was found to be artificial to completely separate the remedies claim from the substantive claims in relation to the Mangatu forest and there was no evidence to indicate that the mandate in relation to the Mangatu forest claims had been withdrawn from the group within Te Manu Whiriwhiri that was proposing to settle those claims. However, Justice Clifford suggests that if there had been a formal withdrawal of mandate in relation to those specific claims, then the Waitangi Tribunal would have erred in law if it had nonetheless sought to rely on the ongoing nature of the settlement negotiations as the reason to refuse an urgent hearing.