IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO-MANIAPOTO DISTRICT A MAATAI ARIKI RAWIRI KAUAE TE TOKI Applicant

Transcription

1 2013 Chief Judge s Minute Book 456 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO-MANIAPOTO DISTRICT A UNDER Section 30, Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN Hako Hauraki - Determine the appropriate representation of Hako Hauraki for the purposes of Treaty Negotiations MAATAI ARIKI RAWIRI KAUAE TE TOKI Applicant Hearing: 2013 Chief Judge's MB dated 17 June Waikato-Maniapoto dated 25 March Waikato-Maniapoto dated 19 February Chief Judge's MB dated 18 October Waikato-Maniapoto MB dated 13 September Chief Judge's MB 304 dated 9 August 2012 Judgement: 12 July 2013 RESERVED JUDGMENT OF JUDGE S F REEVES

2 2013 Chief Judge s MB 457 Introduction [1] Maatai Ariki Rawiri Kauae Te Toki filed an application on 7 July 2012 pursuant to s 30 of Te Ture Whenua Māori Act 1993 ( the Act ). The applicant seeks orders determining the appropriate representatives for Hako Hauraki in Treaty of Waitangi settlement negotiations. [2] The applicant says he is the representative of Hako Hauraki and that he is the most appropriate person to conduct Treaty of Waitangi settlement negotiations with the Crown for Hako Hauraki, and not the mandated representatives of Ngāti Hako. [3] On 15 March 2013 the Crown filed a notice of intention to appear opposing the application. Crown counsel says the application is futile as the Crown does not agree to be bound by any order that may be made by the Court in relation to Treaty settlement negotiations. The Crown relies on the Māori Appellate Court decision of Pue v Ngā Hapū o Ngā Ruahine Iwi Inc. 1 [4] The Hauraki Collective is an interested party in opposition to the application. Mr Majurey for the Collective says that there are mandated negotiators for Ngāti Hako and they have been an active part of the Treaty settlement negotiations with the Crown for many years. [5] A judicial conference was held on 25 March 2013 at which parties gave oral submissions. On 17 June 2013 I issued directions giving the applicant and other parties the opportunity to file further submissions in relation to the decision of Pue and its applicability to this application. In that direction I noted that following receipt of further submissions, I would consider what further steps would be appropriate and whether or not the application should be granted. [6] The issue for determination is whether or not the application should be granted. 1 Pue v Ngā Hapū o Ngā Ruahine Iwi Incorporated (2011) 2011 Māori Appellate Court MB 577 (2011 Appeal 577).

3 2013 Chief Judge s MB 458 Background [7] The Ngāti Hako Deed of Mandate ( Deed of Mandate ) dated May 2011 records that Ngāti Hako mandated Josie Anderson and John Linstead as negotiators to represent their tribal interests in the Hauraki area mai Matakana ki Matakana in Treaty settlement negotiations with the Crown and in collective negotiations as part of the Hauraki Collective. 2 [8] Clause 2 of the Deed of Mandate describes Ngāti Hako as follows; Ngāti Hako is one of the earliest inhabitants of the Hauraki rohe and traces its origins from Toi- Te-Huatahi. Many of the modern tribes of Hauraki whakapapa and have strong historical connections to the tūpuna, Hako. For the purposes of this mandate, the claimant group includes all Ngāti Hako people that trace descent from the tūpuna, Hako. [9] Clause 5 of the Deed of Mandate sets out the Ngāti Hako historical claims for negotiation including Wai 364 for which the applicant is the named claimant. [10] The Crown and the twelve iwi of Hauraki including Ngāti Hako, who comprise the Hauraki Collective, signed Agreement in Principle Equivalents on 22 July In submissions at the judicial conference Mr Majurey indicated that the current timeline to initial a collective Deed of Settlement was September Submissions for the Applicant [11] The applicant made oral submissions at the conference that Hako Hauraki should negotiate with the Crown for settlement of their historical Treaty claims. He argued that Ngāti Hako is a government structure established through the Hauraki Māori Trust Board, and on the basis of their history and whakapapa from the tupuna Hako i Te Rangi Te Pupu O Hauraki, Hako Hauraki should be negotiating with the Crown and not the currently mandated representatives for Ngāti Hako. 2 Office of Treaty Settlements Ngāti Hako Deed of Mandate (2011) <

4 2013 Chief Judge s MB 459 [12] The applicant was unclear in his oral submissions whether he or Hako Hauraki had actually participated in the mandating process for Ngāti Hako, but stated that Hako Hauraki s right to speak about their claims is based on whakapapa, and not on a government process. When asked to define the nature and size of the group that he was representing, the applicant was not specific. He stated that a survey would be required for that purpose, but that he had the authority of his elders and whānau, although again he was not specific about the identity of those persons. [13] The applicant concluded his oral submissions by requesting that the application be adjourned sine die for mediation to take place, and requesting an opportunity to seek legal advice. [14] On 3 July 2013 the applicant filed brief written submissions in response to the directions of 17 June The applicant did not address any of the issues set out in the directions, including the implications of the Pue decision. The applicant repeated his request that the application be adjourned sine die for mediation, and that the Court appoint legal counsel to represent him. Submissions for the Hauraki Collective [15] Mr Majurey submitted that there are mandated negotiators for Ngāti Hako and they have been an active part of the Treaty settlement negotiations with the Crown for many years. He also opposed mediation on the same basis. Submissions for the Crown [16] The Crown had previously advised the Court pursuant to s 30H(2), that the Crown does not agree to be bound by any order concerning Treaty settlement negotiations in this matter. As such, the Crown says the orders sought by the applicant have no utility and the application should be dismissed. [17] Crown counsel submitted that the Pue decision is authority for the principles that; where the Crown has not agreed to be bound by an order concerning Treaty negotiations

5 2013 Chief Judge s MB 460 there is no utility in granting such an order, 3 it is the Crown s prerogative to assess the appropriate representatives of Māori groups for the purposes of Treaty settlement negotiations, and such decisions are non-justiciable, 4 and finally, in circumstances where a matter is non-justiciable and the Court s order would be of no effect, it would be an improper use of the Court s time to hear a grievance which is in the nature of a mandate dispute. 5 The Crown also refers to the decision in Simpson v Whakatane District Court (No 2) 6 where the High Court similarly determined that it is an abuse of power to receive and determine claims where the decision will have no utility. [18] The Crown also referred to the decision of this Court in Ngati Paoa Whanau Trust 7 where it was held that the Court should not lightly make an order under s 30 (1)(b), and that while the appointment of representatives by the Court is a means to settle disputes, it goes beyond the right of the tribe to appoint its own representatives. [19] Crown counsel notes that the Crown is currently involved in negotiations with the Hauraki Collective and individual Hauraki iwi for settlement of Treaty claims. Iwi have appointed and mandated their own negotiators and the Crown is satisfied that those who have been appointed are appropriate representatives for the purposes of negotiations. This matter is non-justiciable and cannot be considered by the Court. [20] Lastly, the Crown submits that the issue raised by the applicant is a mandate dispute, and the appropriate forum for resolution is the Waitangi Tribunal. [21] The Crown seeks dismissal of the application. The Law [22] Section 30 of the Act provides: 30 Māori Land Court s jurisdiction to advise on or determine representation of Māori groups 3 At [32]. 4 At [31]. 5 Ibid. 6 Simpson v Whakatane District Court (No 2) [2006] NZAR 246 at [22]. 7 Ngati Paoa Whanau Trust (1995) 96A Hauraki MB 155 (96A H 155) at [6].

6 2013 Chief Judge s MB 461 (1) The Māori Land court may do either of the following things: a) advise other courts, commissions, or tribunals as to who are the most appropriate representatives of a class or group of Māori: b) determine, by order, who are the most appropriate representatives of a class or group of Māori. (2) The jurisdiction of the Māori land court in subsection (1) applies to representation of a class or group of māori in or for the purpose of (current or intended) proceedings, negotiations, consultations, allocations of property, or other matters. (3) A request for advice or an application for an order under subsection (1) is an application within the ordinary jurisdiction of the Māori Land court, and the Māori Land Court has the power and authority to give advice and make determination as the Court thinks proper. [23] In Pue the Māori Appellate Court heard an appeal against a decision of the Māori Land Court dismissing an application pursuant to s 30(1)(b) to determine appropriate iwi representation for Treaty negotiations purposes. In relation to the issue of utility the court stated: [31]... The point of granting an order which determines the representatives of Ngā Ruahine for the purposes of Treaty negotiations would be to indicate to the crown the party which the Court considers represents Ngā Ruahine. However, the crown has chosen its own method of assessing the appropriate representation for Ngā Ruahine and has clearly indicated that it would not be bound by a Court decision. Such a matter is entirely within the prerogative of the Crown and the Court has no power to interfere. [32] Furthermore, there would be no utility in granting such an order unless the Crown either sought the advice itself, or agreed to be bound by the decision of the Court. In circumstances where a matter is non-justiciable and the Court s order would have no effect it would be an improper use of the Court s time and the time of the other parties to hear a grievance in the nature of a mandate dispute. Discussion [24] Mr Te Toki s application clearly concerns the mandate of the negotiators who have been appointed to represent Ngāti Hako, and he has not presented any evidence or

7 2013 Chief Judge s MB 462 submissions that substantively challenge their mandate. In any event, this is a moot point as the Crown does not consent to being bound by any order of this Court in relation to the representation of Ngāti Hako for Treaty settlement purposes. [25] I follow the approach taken in the Pue decision, and I accept the Crown s submission that there is no utility in this Court making orders pursuant to s 30 in such circumstances. [26] The applicant has on several occasions requested that this matter be adjourned sine die and referred to mediation, and that legal counsel be appointed to represent him. I note the application was filed in July 2012 and the applicant has had ample time to take legal advice and organise representation. Such requests at this late stage in proceedings are somewhat opportunistic and an attempt to delay determination of what is otherwise a straightforward matter. The mandated Ngāti Hako negotiators have been place and actively engaged in negotiations with the Crown for some time. Mr Majurey also indicated that mediation was not a preferred option for the Collective for this reason. [27] I agree that mediation is not appropriate in these circumstances and the issue of mandate can still be pursued by the applicant in the Waitangi Tribunal. Decision [28] The application is dismissed. Dated at Dunedin this 12 th day of July S F Reeves JUDGE