Haronga v Waitangi Tribunal (Court of Appeal)

Back in January, I wrote a brief post on the High Court decision Haronga v Waitangi Tribunal.  That decision has since been appealed and the Court of Appeal last month dismissed that appeal, confirming the decision of Justice Clifford in the High Court.

As I noted in my earlier post, the facts of the case are essentially as follows:

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.

Judge Clark, in the Waitangi Tribunal, declined the application for an urgent hearing.  Mr Haronga then applied to the High Court for judicial review of Judge Clark’s determination.  Justice Clifford heard the application in the High Court:

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Mangatu forest and there was no evidence to indicate that the mandate in relation to the Mangatu forest claims had been withdrawn from the group within Te Manu Whiriwhiri that was proposing to settle those claims.

As noted above, the Court of Appeal has confirmed Justice Clifford’s decision.  It is, however, interesting to note the way that the Court has characterised the issues raised as being about more than simply the procedural processes that the Waitangi Tribunal utilises in order to manage its caseload.  Referring to the decision in Attorney-General v Mair, (on which I have also posted recently) the Court of Appeal is careful to note “it is unlikely that an appellate court will second-guess a tribunal’s decision as to its priorities”.  Nevertheless, the Court agreed with the appellant’s view that there are substantive issues involved that relate to the right of successful claimants to seek a particular form of remedy in a meaningful way.

While the Court accepted that “a blanket refusal to consider making resumption orders because broader settlement discussions are underway may be problematic.” and stated that “an inflexible “circuit breaker only” approach to the granting of remedies hearings may be objectionable”, ultimately, it was the Court’s view that this as not the approach that had been taken by Judge Clark in the Tribunal.  The Court of Appeal agreed with the decision of the High Court, which had found that Judge Clark had appropriately considered the particular merits of the application for an urgent remedies hearing and exercised his discretion to refuse such an application accordingly.

Haronga v Waitangi Tribunal and Ors

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.

Attorney-General v Te Kenehi Mair and Ors

Just prior to Christmas, the Court of Appeal issued a decision relating to the jurisdiction and procedure of the Waitangi Tribunal.  The decision in Attorney-General v Te Kenehi Mair and Ors is available on the Courts of NZ website.  Although not central to the outcome of the case, Baragwanath J provides some interesting comments on the Tribunal’s ability to inquire into matters that are the subject of a bill before Parliament.

This case was an appeal against a High Court decision which had found that the Waitangi Tribunal had failed to take into account all relevant matters when it had refused to grant an urgent hearing for two claims which were before it.  The Tribunal has a process whereby claimants can apply to have their claims heard urgently.  Though urgency is only granted in exceptional circumstances.  An urgent hearing was sought for the two claims at issue because the claimants were concerned that their ability to pursue their claims through the Waitangi Tribunal would be prejudiced by the Crown’s decision to enter into Treaty settlement negotiations with another group from the same area.  The Tribunal did not grant these claims an urgent hearing.  The claimants made an application for judicial review of that decision.  In the High Court, MacKenzie J determined that the Tribunal had not taken into account all the types of prejudice which might be suffered by the claimants because of the Crown’s actions. MacKenzie J quashed the decision of the Tribunal and referred the matter back to the Tribunal to decide again.  The Crown appealed against MacKenzie J’s decision.

The appeal was heard by Chambers, O’Regan, and Baragwanath JJ.  The judgment of the Court was that the appeal should be allowed and the orders made in the High Court quashed.  As it turned out, by the time this decision was issued, the Waitangi Tribunal had already reconsidered the matter and declined the request for urgency once more.  The Court of Appeal found that no further re-consideration by the Tribunal was necessary.  Chambers and O’Regan JJ issued joint reasons for their decision, with Baragwanath J writing a separate decision, though all three judges agreed as to the outcome of the case.  Chambers and O’Regan JJ determined that the Waitangi Tribunal had considered all relevant considerations in making its decision on the application for urgent hearings of the two claims at issue and, therefore, that decision was not unlawful.  Baragwanath J makes it clear in his decision that he agrees with the other two judges on this central point.  However, Baragwanath J also goes on to make some detailed comments on connected issues.

In particular, Baragwanath J considers the Crown’s argument that, even if the Tribunal’s decision on urgency had been unlawful, MacKenzie J was wrong to order a re-hearing of the issue because that would involve the consideration of matters that were the subject of a bill before Parliament.  Chambers and O’Regan JJ determine that they need make no comment on this issue because it becomes irrelevant to this case if the Tribunal’s decision is found to be lawful (as the Court so found).  Baragwanath J gives careful consideration to s 6(6) of the Treaty of Waitangi Act 1975.  The relevant subsection states:

Nothing in this section shall confer any jurisdiction on the Tribunal in respect of any Bill that has been introduced into the House of  Representatives...

Baragwanath J addresses authorities as to the privileges of Parliament and the development of the Waitangi Tribunal’s jurisdiction so as to understand the effect of s 6(6) in context.  He also looks to the Interpretation Act 1999 and takes the view that:

Section 6(6) of the Treaty of Waitangi Act does not say it may be used to stop the agreed statutory process.  It does no more than the text states: it concerns freedom of parliamentary speech and prevents the Tribunal from examining a bill; not the conduct that preceded it.

He, therefore, does not agree with the Crown’s argument that allowing the Tribunal to examine conduct that preceded a bill with overlapping content would infringe principles of comity.  Furthermore, Baragwanath J finds: 

It is contrary to settled principles of Crown dealing with indigenous peoples for legislation to be read up against them and their interests.  Parliament has chosen to limit the constraint on the Tribunal’s jurisdiction only to specific interference with its own processes; apart from that the Tribunal is empowered to examine all prior conduct.  There is no reason to make any assumption to the contrary.

Now, this isn’t central to the Court’s decision, but, nonetheless, Baragwanath J provides a useful discussion of the constitutional role of the Tribunal in relation to the Parliament and, in particular, the executive government.