IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 28 Taitokerau MB 217 (28 TTK 217) A A

Transcription

1 IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 28 Taitokerau MB 217 (28 TTK 217) A A UNDER Sections 19, 26C and 98, Te Ture Whenua Maori Act 1993 IN THE MATTER OF Determination of dispute between Te Runanga o Ngati Hine and Te Runanga a Iwi o Ngapuhi BETWEEN TE RUNANGA O NGATI HINE Applicant Hearing: 5-6 October 2011 (Heard at Whangarei) Appearances: Mr M Doogan and Ms SM Downs, for Ngati Hine Mr J Every-Palmer and Mr A Olney, for Te Runanga a Iwi o Ngapuhi Mr A Irwin and Ms R Hogg, Crown Law Ms M Mangu, for Mr M Waetford Judgment: 6 October 2011 ORAL JUDGMENT OF JUDGE D J AMBLER Copies to counsel: Mr M Doogan and Ms SM Downs, McCaw Lewis Ltd, PO Box 9348 Waikato Mail Centre 3240, DX GP20020, Hamilton michael.doogan@waterfront.org.nz seasonmary.downs@mccawlewis.co.nz Mr J Every-Palmer and Mr A Olney, Russell McVeagh, PO Box The Terrace 6143, DX SX11189, Wellington james.every-palmer@russellmcveagh.com adrian.olney@russellmcveagh.com Mr A Irwin and Ms R Hogg, Crown Law, PO Box 2858, DX SP20208, Wellington andrew.irwin@crownlaw.govt.nz rachel.hogg@crownlaw.govt.nz Ms M Mangu, Waipuna Chambers, 123 State Highway 1, Moerewa 0211 meremangu@extra.co.nz TE RUNANGA O NGATI HINE MLC 28 Taitokerau MB October 2011

2 Preface [1] As is my practice, I reserve the right to amend and correct this judgment, and to expand on my reasons, once I review the transcript however the substance of the decision and the outcome will not change. Introduction [2] The Māori Fisheries Act 2004 ( 2004 Act ) left the door open to Ngati Hine to withdraw from the Joint Mandated Iwi Organisation ( Joint MIO ) established for Ngapuhi. 1 Any dispute in relation to the s 20 option is, by reason of s 187 of the 2004 Act, a matter that this Court can determine pursuant to s 26C of Te Ture Whenua Māori Act 1993 ( 1993 Act ) and its related provisions. [3] Te Runanga o Ngati Hine ( TRONH ) proposes that Ngati Hine withdraw from the Joint MIO established for Ngapuhi, which is Te Runanga a Iwi o Ngapuhi ( TRAION ). TRONH has brought the current application because it says it is in dispute with TRAION over the withdrawal process under s 20. [4] At the same time as TRONH is seeking to withdraw Ngati Hine from TRAION, TRAION is promoting amongst Ngapuhi (including Ngati Hine) a proposal to obtain a mandate to enter into direct negotiations with the Crown in relation to Ngapuhi (and Ngati Hine s) historical Treaty of Waitangi claims. This proposal is more commonly known as the Tuhoronuku proposal. [5] In its application TRONH not only asks this Court to rule on aspects of the dispute over the s 20 process but also asks the Court to rule on the Tuhoronuku proposal and effectively determine that the Tuhoronuku proposal cannot and must not include Ngati Hine because of Ngati Hine s s 20 right. [6] TRAION and the Crown argue that, while the Court has jurisdiction to address a dispute that relates to the 2004 Act, it cannot step beyond that Act to deal 1 Section 20 Māori Fisheries Act Taitokerau MB 218

3 with the Tuhoronuku proposal and the general question of mandate to negotiate historical Treaty claims. On the other hand, TRONH argues that the Court has jurisdiction via s 20. [7] Counsel agree that I should rule on this preliminary jurisdiction issue as a matter of priority. The answer is of considerable importance to Ngapuhi, Ngati Hine and the two Runanga. TRAION and TRONH are in ongoing discussions over the Tuhoronuku proposal and Treaty settlement mandate generally. An early answer may assist those discussions. [8] I emphasise that this decision does not address those aspects of the dispute in relation to the s 20 process which are not the subject of a challenge to jurisdiction. That is, there is no dispute that Ngati Hine has a right to withdraw from TRAION and that this Court has a role in relation to any dispute that properly comes within the 2004 Act. Those matters will be dealt with in due course in accordance with the provisions of the 1993 and 2004 Acts. [9] I have been greatly assisted by counsel s focussed and concise submissions. The application [10] The application was amended on 16 September TRONH seeks the following orders: 1. Such orders as are necessary to ensure the timely resolution of the dispute on an urgent basis; 2. An order that TRAION and its subcommittee Te Roopu o Tuhoronuku (Tuhoronuku) comply with the provisions of section 20 of the Māori Fisheries Act 2004 and the constitutional documents of TRAION and allow Ngati Hine to complete the process of withdrawal from TRAION; 3. An order in the nature of a declaration that TRAION and its subcommittee Tuhoronuku must respect the decision of Ngati Hine 28 Taitokerau MB 219

4 to withdraw from TRAION and accordingly have no authority to purport to seek a mandate to represent Ngati Hine in negotiations with the Crown for the comprehensive settlement of Ngati Hine historical claims concerning Crown breaches against Te Tiriti o Waitangi The Treaty of Waitangi; 4. Such interim orders (including by way of injunction) as may be necessary to prevent prejudice to the interests of Ngati Hine arising out of or in connection with the attempt by TRAION and its subcommittee Tuhoronuku to obtain a mandate to represent Ngapuhi (including Ngati Hine) in negotiations with the Crown for the comprehensive settlement of all Ngapuhi (including Ngati Hine) historical claims concerning Crown breaches of Te Tiriti o Waitangi/The Treaty of Waitangi; 5. An order that TRAION and its subcommittee Tuhoronuku remove any and all references to Ngati Hine and Ngati Hine marae, hapu and historical claims from its mandate proposal; 6. An order preventing TRAION and/or its subcommittee Tuhoronuku from taking any steps in reliance on any mandate obtained that purports to include Ngati Hine or Ngati Hine marae, hapu or historical claims; 7. An order in the nature of a declaration that any mandate obtained by TRAION and/or its subcommittee Tuhoronuku is invalid and of no effect to the extent that it purports to include Ngati Hine or Ngati Hine marae, hapu or historical claims against the Crown for breaches of Te Tiriti o Waitangi/The Treaty of Waitangi; 8. An order that TRAION comply with the provisions of its Trust Deed and cease wrongfully excluding the Ngati Hine Takiwa representative from all or part of TRAION Board meetings; 9. An order determining the notional iwi population of Ngati Hine. 28 Taitokerau MB 220

5 [11] The application is made in reliance on ss 19, 26C(d), 26D, 26F, 26G, 26M and 67 of the 1993 Act, ss 20, 180 and 187 of the 2004 Act and rr 81 and 82 of the Māori Land Court Rules 1994 ( 1994 Rules ). [12] The orders in respect of which jurisdiction is challenged are paragraphs 1.2 to 1.7 inclusive. [13] Following a teleconference on 14 September 2011 I set the application down for hearing on 5 and 6 October 2011 to address the preliminary jurisdiction issue. For the sake of clarity, in doing so I exercised my powers under s 26F(3) and, should I conclude that I lack jurisdiction, it will be open to me to make orders under s 26G(3) and (4) notwithstanding s 26D(6). [14] In accordance with my directions, on 30 September 2011 the Crown notified its intention to appear at the hearing to challenge jurisdiction in relation to the Tuhoronuku proposal. It otherwise has no interest in the underlying s 20 dispute. On 29 September 2011 Te Ohu Kaimoana Trustee Limited also gave notice that, while it did not consider it needed to attend this hearing on the preliminary jurisdiction issue, it does wish to be joined as an interested party in relation to the underlying dispute concerning the s 20 process. [15] On the morning of the hearing Ms Mangu, appearing for Mr Martin Waetford and others of Ngati Hine, filed a Notice of Intention to Appear to oppose the application. That is, to also challenge the Court s jurisdiction to consider the Tuhoronuku proposal. After hearing from counsel I granted Ms Mangu leave to make submissions but not to present evidence. Ms Mangu endorsed the submissions on behalf of TRAION and the Crown and her appearance primarily served to demonstrate that there are some within Ngati Hine who support TRAION s approach. [16] The hearing proceeded on the basis of an application to strike out. That is, the evidence was as per the affidavits, there was no cross-examination, the Court 28 Taitokerau MB 221

6 heard submissions only and the facts pleaded were assumed to be true 2. As I explained to Mr Doogan for TRONH, should I conclude that the Court has jurisdiction to entertain these aspects of the application, then a hearing will be required to determine whether I should exercise that jurisdiction. Background Statutory framework [17] The 1993 and 2004 Acts are central to the Court s jurisdiction. Several sections are relevant. I identify them below and set them out in the Appendix to this judgment. They are: ss 19, 26C, 26D, 26F, 26G, 26M, 30 and 30H of the 1993 Act. The Preamble, ss 3, 19 to 24, 180 to 183 and 187 of the 2004 Act. [18] In summary, under s 20 Ngati Hine has the option to withdraw from the Joint MIO which, on 13 September 2005, was confirmed as TRAION. As per s 20(5), any withdrawing group wishing to withdraw Ngati Hine must have commenced the process of withdrawal no later than 13 September [19] Under s 187, any dispute in relation to the matters provided for by or under s 20 may be brought to this Court under s 26C(d). The Court s jurisdiction under s 26C(d) is to hear and determine, and make orders accordingly. [20] Section 26D sets out the principles that apply to the exercise of jurisdiction under the 2004 Act. Under s 26D(2), an application under s 26C is a proceeding for the purposes of the 1993 Act and within the ordinary jurisdiction of the Court. In my view, that provision is primarily concerned with procedural matters but is particularly relevant for present purposes as it may enable the Court to rely on s 2 I refer to and rely on the authorities cited in McGechan on Procedure in respect of Rule 15.1 of the High Court Rules. 28 Taitokerau MB 222

7 19(1) to grant an interim injunction where proper grounds are made out. TRONH relies on s 19, though Mr Doogan emphasised that at this point in time an interim injunction is not sought. [21] Under s 26D(6) the Court does not have jurisdiction under s 26C unless it is satisfied that the parties have complied with s 181(1), which in turn obliges the parties to endeavour to agree on a process of dispute resolution and to engage in that process. I do not take that provision to prevent a preliminary hearing of this nature in relation to an issue of jurisdiction. Under s 26D(8), where the parties have not complied with s 181(1), the Court may order the parties to engage in a dispute resolution process unless the Court considers that to be inappropriate. Thus, the 1993 and 2004 Acts place considerable emphasis on the parties endeavouring to resolve their disputes without resort to the Court. As Mr Every-Palmer put it, this Court is the circuit breaker for disputes under the 2004 Act. [22] Furthermore, under ss 26F(6) and (7) and 26G(3) and (4) the Court has a broad power to dismiss or defer an application or to choose not to address an application in circumstances where the application is vexatious, frivolous, an abuse of process, fails to satisfy the rules of the Court, does not present serious issues, is governed by another enactment or is more appropriately addressed in another forum. Once again, these provisions emphasise that the Court s process is a process of last resort. [23] Section 26M sets out the orders and interim orders that the Court may make under ss 26B to 26L. Section 26M(1) is specific as to the orders that may be made however subsection (h) provides that the Court may make other orders not inconsistent with the 2004 Act. Section 26M(2) and (3) empower the Court to make an interim injunction in relation to specific issues of allocation and transfer of settlement assets and payment of income, none of which are relevant to this application. [24] Section 180 is relevant in that TRONH relies on s 180(1)(m) whereby an allegation by an adult member of an iwi that, in relation to a matter addressed in the 2004 Act, an act of a mandated iwi organisation ( MIO ) is contrary to that Act or 28 Taitokerau MB 223

8 the constitutional documents of a MIO, may also be the subject of an application under s 26C. Factual background [25] TRAION is a charitable trust established in On 13 September 2005 it was recognised as the Joint MIO for Ngapuhi under the 2004 Act. Its constitution is set out in a Deed ( the Deed ), the current version of which appears to be dated 1 November 2008 (there is a small debate over whether a later deed has been ratified but that debate is not material to my decision). [26] The Deed identifies eight Takiwa groups, one of which is Ngati Hine, and two Taurahere groups. Each Takiwa and Taurahere have a trustee. Under Schedule 1 clause 4, each Takiwa and Taurahere in turn have an Executive Committee consisting of a chairperson, secretary and treasurer. TRONH has acted as the Executive Committee for the Takiwa of Ngati Hine for some time. The deputy chairperson of TRONH, Mr Pita Tipene, is the current trustee on TRAION representing the Takiwa of Ngati Hine. [27] Schedule 3 of the Deed sets out the Process to Withdraw as required by s 20(2). It provides for a preliminary process of withdrawal and a formal process of withdrawal. [28] TRONH has existed in one form or another since I am told that today it operates under tikanga and is, at law, an unincorporated body. Nevertheless, it recognises that if Ngati Hine is successful in withdrawing from TRAION as the Joint MIO, legal entities will need to be formed in order to be recognised as the MIO for Ngati Hine. [29] TRONH says that in November 2009 it commenced the withdrawal process as contemplated by s 20 and in accordance with Schedule 3 of the Deed. Hui were held in mid TRAION disputes whether TRONH commenced the withdrawal process by 13 September 2010 but that dispute is not material to the preliminary jurisdiction issue though it may be relevant to the underlying s 20 dispute. In any 28 Taitokerau MB 224

9 event, the two Runanga have failed to agree on aspects of the implementation of the withdrawal process and, critically, the determination of a notional population of Ngati Hine for the purposes of the 2004 Act. [30] At about the same time as TRONH has been pursuing the withdrawal process TRAION has been advancing the Tuhoronuku proposal for direct negotiations of Ngapuhi s historical Treaty claims. In 2008 that Runanga s AGM directed it to lead Ngapuhi in settling its claims. In 2009 a subcommittee was established known as Te Roopu o Tuhoronuku which embarked on a process of consultation regarding a mandate to settle the claims. A number of hui have been held since 2009 culminating in the recent mandating hui and voting process. The result of the vote, which was only known in the last week, is that 29,389 voting papers were sent to eligible voters. Approximately 23 per cent voted, that is, on my calculation, 6,818 members of Ngapuhi. Of those, 5,210 votes, being 76 per cent of those who voted, supported the Tuhoronuku proposal. [31] TRAION intends to proceed with the Tuhoronuku proposal. In a press release dated 3 October 2011 the Minister in Charge of Treaty of Waitangi Negotiations, the Honourable Chris Finlayson, reported that he continues to meet with representatives of Tuhoronuku and the Kotahitanga Group (another group within Ngapuhi with whom TRONH is aligned) to discuss a future settlement process. Thus, the Tuhoronuku proposal is progressing though it has some way to go before the Crown recognises it as the body to deal with in negotiating the settlement of Ngapuhi s historical Treaty claims. Issues [32] Mr Doogan helpfully framed his submissions around three issues. I adopt that framework for my decision. The issues are: 1. What is the legal effect of Ngati Hine s withdrawal from TRAION? 2. Jurisdiction 28 Taitokerau MB 225

10 3. Remedies Issue 1: What is the legal effect of Ngati Hine s withdrawal from TRAION? [33] Mr Doogan emphasised that the application turns on the meaning of the withdrawal provision in the 2004 Act. Relying on s 5(1) of the Interpretation Act 1999, the Oxford English Dictionary definition of withdraw and withdrawal, what he said was the purpose of the 2004 Act, and various provisions in the Deed, he argued that Ngati Hine s right to withdraw under s 20 is a withdrawal from TRAION for all purposes. Ngati Hine is then to be treated as an iwi in its own right. Upon withdrawal, TRAION will have no legal basis to represent Ngati Hine and, therefore, it is said to follow logically that TRAION cannot promote the Tuhoronuku proposal on behalf of Ngati Hine. [34] Clearly, s 20 preserves Ngati Hine s right to withdraw from the Joint MIO for Ngapuhi. Ngati Hine may then establish a separate MIO. But the withdrawal under the 2004 Act is for the purposes of that Act only. That is, it is for the purpose of Māori fisheries. This is clear from the Preamble and s 3 in particular and the body of the 2004 Act as a whole. Section 3 expressly captures the purposes of the Act: 3 Purposes (1) The purposes of this Act are to implement the agreements made in the Deed of Settlement dated 23 September 1992; and provide for the development of the collective and individual interests of iwi in fisheries, fishing, and fisheries-related activities in a manner that is ultimately for the benefit of all Maori. (2) To achieve the purposes of this Act, provision is made to establish a framework for the allocation and management of settlement assets through the allocation and transfer of specified settlement assets to iwi as provided for by or under this Act; and the central management of the remainder of those settlement assets. 28 Taitokerau MB 226

11 [35] Mr Doogan s argument is, in effect, that withdrawal under s 20 has two particular consequences beyond the 2004 Act. First, TRAION is barred at law from continuing to purport to represent or to promote a Treaty settlement on behalf of Ngati Hine. Second, the MIO that is subsequently recognised on behalf of Ngati Hine would automatically represent Ngati Hine on historical Treaty claims matters. [36] That cannot be the case. In no respect can the 2004 Act be said to affect historical Treaty claims. It is only concerned with Māori fisheries. Furthermore, the corollary of that argument is that, if Ngati Hine does not successfully withdraw, then TRAION is effectively, by default, the mandated body to represent not only Ngapuhi but also Ngati Hine in its historical Treaty claims. That also cannot be the case. Put simply, the tentacles of the 2004 Act do not reach beyond Māori fisheries. [37] Certainly, the Deed does not expressly address the consequences of Ngati Hine s withdrawal pursuant to s 20 for purposes beyond the 2004 Act. Mr Doogan argued that upon withdrawal, Ngati Hine would no longer have any role in respect of TRAION. Mr Every-Palmer disagreed. He maintains that Ngati Hine would remain a member of TRAION for purposes beyond the 2004 Act and suggested that the Deed may then need to be amended to, for example, ring fence the non-ngati Hine fishery assets from Ngati Hine. I need not express a final view on the matter. But, as the Deed only addresses Ngati Hine s right to withdraw under the 2004 Act and does not stipulate any other consequences, I think Mr Every-Palmer s point has greater strength and Ngati Hine would likely remain a Takiwa within TRAION for all purposes excluding the 2004 Act. [38] But even if Ngati Hine s withdrawal via Schedule 3 is for all purposes, and TRAION could no longer be said to represent Ngati Hine, it does not automatically follow that I can rule on the Tuhoronuku proposal. That is a matter of jurisdiction. Issues 2 and 3: Jurisdiction and remedies [39] Mr Doogan argued that there is no jurisdictional bar to the application. He says that the Court has exclusive jurisdiction to hear and determine disputes about the reorganisation of TRAION as per ss 26C, 183 and 187. He says that the dispute 28 Taitokerau MB 227

12 over the Tuhoronuku proposal falls within s 20 as that section is also concerned with the effect of withdrawal. Thus, he effectively argues, any action of TRAION that impinges on Ngati Hine is a matter that the Court can look into as Ngati Hine has the right to withdraw under s 20. He also points to the remedies provisions in s 26M and says that they are broad enough to address TRONH s claims. [40] I reject Mr Doogan s arguments. It is simply wrong to equate this Court s jurisdiction under the 2004 Act with one that enables it to hear and determine any dispute regarding the reorganisation or operation of TRAION. This Court s jurisdiction is statute based. Apart from the s 30 regime, this Court s only jurisdiction to entertain disputes between the two Runanga relates to Māori fisheries matters. While ss 20 to 24 address the effects or consequences of withdrawal, they all relate to Māori fisheries only, as would be expected. I agree with Mr Every- Palmer that the 2004 Act does not purport to address the effects of a withdrawal from a Joint MIO beyond the scope of the Act. [41] I also agree with Mr Every-Palmer and Mr Irwin that ss 26A to 26N are drafted as a discrete jurisdiction to address issues related to the 2004 Act. TRAION clearly has functions beyond the 2004 Act and they are not matters that I can address, at least not via s 26C. No matter how the relevant provisions of the 1993 and 2004 Acts are construed, I cannot see anywhere where Parliament has given this Court the unique jurisdiction to examine TRAION s Treaty mandate proposal when it has not done that in respect of any other iwi. Furthermore, I agree that such an interpretation would be in direct conflict with the s 30 regime and s 30H(2) in particular. [42] But the bar to this Court s jurisdiction is even more fundamental. I accept that Mair 3 and Manuirirangi 4 are binding authority that Treaty mandate issues are in the political domain and are non-justiciable. I do not consider that the s 20 provision creates the type of exception referred to in Fenwick 5 which might give me oversight of Treaty mandate issues. In any event, there is no dispute that the underlying s Attorney-General v Mair [2009] NZCA 625 Manuirirangi v Nga Hapu o Nga Ruahine Iwi Inc [2011] NZAR 166 Fenwick v The Trustees of Nga Kaihautu o Te Arawa Executive Council HC Rotorua CIV , 13 April 2006 Justice Allan at paragraph Taitokerau MB 228

13 issue is justiciable and that Ngati Hine have a statutory right. Those matters will be addressed in due course. [43] I also do not accept that the remedies available to the Court, whether under s 19(1) or s 26C or s 26D(2) or s 26M, enable the Court to grant the relief sought in paragraphs 1.3 to 1.7 of the Amended Application. The Court s jurisdiction under ss 26C and 187 relate to Māori fisheries matters only and not Treaty settlement issues. [44] Finally, during the course of the hearing I asked Mr Doogan to explain what would be the practical prejudice to the s 20 withdrawal process if the Tuhoronuku proposal proceeded. Mr Doogan could only point to alleged prejudice to Ngati Hine s Treaty claims and not the s 20 withdrawal process itself. In fact, on TRONH s own version of events, it has already concluded the preliminary and formal process of withdrawal and it is now a matter of resolving its disputes with TRAION. I simply cannot see that the Tuhoronuku proposal prejudices or compromises Ngati Hine s s 20 right. Summary [45] The fundamental issue is: what is the breach of the legal right that enables this Court to intervene? I agree with Mr Every-Palmer and Mr Irwin that what TRONH complains of the Tuhoronuku proposal does not amount to a breach of a legal right. It is non-justiciable. That is, it is a matter of politics and policy for the Crown. TRONH may have valid complaints about the Tuhoronuku proposal but they must address them to the Minister. Furthermore, even if some aspects of the Tuhoronuku proposal were justiciable, they are not matters that this Court can rule on under its special jurisdiction in relation to the 2004 Act. To murder a metaphor, they are a different kete of fish. Outcome [46] I therefore conclude that paragraphs 1.3 to 1.7 of the Amended Application are non-justiciable and beyond the jurisdiction of this Court. Paragraph 1.2 is justiciable to the extent that it relates to the underlying s 20 process. In accordance 28 Taitokerau MB 229

14 with s 26G(3) and the general powers of the Court to police its own procedures, I dismiss paragraphs 1.3 to 1.7 of the Amended Application. [47] There is a suggestion that costs are sought. I am minded to reserve costs however counsel may file submissions within 14 days on the issue of costs. [48] I will also address the question of the application under s 98 upon receipt of any submission on costs. [49] Counsel will need to address the future conduct of the application. The Crown has signalled its intention to withdraw. Ms Mangu is to take instructions from her client. Te Ohu Kaimoana Trustee Limited needs to address its position. Mr Doogan and Mr Every-Palmer also need to address their respective clients positions. Counsel need time to take instructions and to consider matters in detail and I therefore direct counsel to file submissions by 31 October I will look to convene a further teleconference in November Pronounced in open Court in Whangarei at 4:15pm on Thursday this 6 th day of October D J Ambler JUDGE 28 Taitokerau MB 230

15 APPENDIX Te Ture Whenua Māori Act Jurisdiction in respect of injunctions: (1) The Court, on application made by any person interested or by the Registrar of the Court, or of its own motion, may at any time issue an order by way of injunction - (d) Against any person in respect of any actual or threatened trespass or other injury to any Maori freehold land, Maori reservation, or wahi tapu: or Prohibiting any person, where proceedings are pending before the Court or the Chief Judge, from dealing with or doing any injury to any property that is the subject-matter of the proceedings or that may be affected by any order that may be made in the proceedings; or Prohibiting any owner or any other person or persons without lawful authority from cutting or removing, or authorising the cutting or removal, or otherwise making any disposition, of any timber tress, timber, or other wood, or any flax, tree ferns, sand, topsoil, metal, minerals, or other substances whether usually quarried or mined or not, on or from any Maori freehold land; or Prohibiting the distribution, by any trustee or agent, of rent, purchase money, royalties, or other proceeds of the alienation of land, or of any compensation payable in respect of other revenue derived from the land, affected by any order to which an application under section 45 or an appeal under Part 2 relates. (2) Notwithstanding anything in the Crown Proceedings Act 1950, any injunction made by the Court under this section may be expressed to be binding on the Maori Trustee. (3) Any injunction made by the Court under this section may be expressed to be of interim effect only. (4) Every injunction made by the Court under this section that is not expressed to be of interim effect only shall be of final effect. 26C Jurisdiction of Court to make determinations The Court has exclusive jurisdiction to hear and determine, and make orders accordingly, in relation to disputes referred to it under section 182 of the Maori Fisheries Act 2004: applications by Te Ohu Kai Moana Trustee Limited under section 185(1) of the Maori Fisheries Act 2004: action taken by Te Ohu Kai Moana Trustee Limited in reliance on section 186 of the Fisheries Act 2004: 28 Taitokerau MB 231

16 (d) disputes referred to it by any party under section 187 of the Maori Fisheries Act D Principles applying to exercise of jurisdiction in relation to Maori Fisheries Act 2004 (1) Any person who is a party to a matter referred to in section 26B or section 26C has standing in relation to the powers provided for in sections 26Bto26N. (2) A request for advice under section 26B, or an application for a determination under section 26C, is a proceeding for the purposes of this Act; and an application within the ordinary jurisdiction of the Court. (3) The Court has the power and authority to give advice or make determinations as it thinks proper. (4) The Court must determine an application or matter referred to it for advice or determination under section 26B or section 26C by applying the same considerations as would be relevant under the Maori Fisheries Act (5) Sections 26B and 26C do not limit the right of any person to appeal against any decision of the Court. (6) The Court does not have jurisdiction under section 26B or section 26C unless it is satisfied that section 181(1) of the Maori Fisheries Act 2004 has been complied with by the parties. (7) Subsection (6) does not limit section 182 or section 185 or section 186 of the Maori Fisheries Act (8) Where a dispute resolution process contemplated by section 181(1) of the Maori Fisheries Act 2004 has not been agreed or has not been complied with, the Court must order the parties to engage in a dispute resolution process on terms it prescribes unless it believes, for specified reasons, that such a process is inappropriate. (9) Nothing in this section or in section 26B or section 26C restricts any other right of a person to bring proceedings in the Court. 26F Procedure of Court in making determinations (1) The jurisdiction conferred by section 26C is exercised on written application to the Chief Judge by a party seeking the determination. (2) Within 20 working days of receiving an application under section 26C, the Chief Judge must allocate the application either to him or herself or to another Judge to address. (3) The Judge addressing an application for a determination may (but is not obliged to) do 1 or more of the following: 28 Taitokerau MB 232

17 (d) (e) if subsection (5) applies, determine the issue [[without a full or any hearing]] and make an order accordingly: refer the application to the Court for hearing and determination: exercise the powers in section 67 for the purpose stated there: refer issues arising from the application to a mediator for mediation: if subsection (6) applies, dismiss or defer consideration of the application. (4) The Chief Judge may appoint 1 or more additional members (not being Judges of the Maori Land Court) who have knowledge of relevant tikanga Maori or other expertise for the purpose of providing advice on the application. (5) The Judge may make a determination under subsection (3) if the Judge is satisfied that the applicant has taken reasonable steps to notify affected parties of the application and those parties do not oppose the application; or the parties have taken reasonable steps to resolve their dispute, as provided for in section 182(3) of the Maori Fisheries Act (6) The Judge may dismiss or defer consideration of an application under subsection (3)(e) if it is vexatious, frivolous, or an abuse of the Court, or fails to satisfy rules of court; or it does not present serious issues for determination; or the Judge considers it is appropriate to dismiss or defer consideration of the application for another reason. (7) The Judge may choose not to address an application if the Judge is satisfied that the issues presented by the application are governed by another enactment or are more appropriately addressed in another forum. 26G Powers of Court if application referred under section 26F(3) (1) If a matter is referred to the Court for hearing and determination under section 26F(3), the Court must proceed to hear and determine the application. (1A) However, despite subsection (1), the Court may (but is not obliged to) do 1 or more of the following: (d) if subsection (2) applies, determine the issue without a full or any hearing and make an order accordingly: exercise the powers in section 67 for the purpose stated there: if subsection (3) applies, dismiss or defer consideration of the application: request a report from Te Ohu Kai Moana Trustee Limited on any matter the Court considers appropriate. 28 Taitokerau MB 233

18 (2) The Court may make a determination under subsection (1) if it is satisfied that the applicant has taken reasonable steps to notify affected parties of the application; and those parties do not oppose the application. (3) The Court may dismiss or defer consideration of an application under subsection (1) if it is vexatious, frivolous, or an abuse of the Court, or fails to satisfy rules of court; or it does not present serious issues for determination; or the Court considers it is appropriate to dismiss or defer consideration of the application for another reason. (4) The Court may choose not to address an application if it is satisfied that the issues presented by the application are governed by another enactment or are more appropriately addressed in another forum. (5) The Court may, of its own motion or at the request of any party to the proceeding, appoint 1 or more additional members (not being Judges of the Maori Land Court) who have knowledge of relevant tikanga Maori or other expertise to assist the Court. 26M Orders and interim orders (1) In making orders under sections 26B to 26L, the Judge or the Court, as the case may be, may do 1 or more of the following: (d) (e) (f) incorporate or restate the terms of an agreement reached by the persons participating in an application: incorporate the terms that express the outcome of mediation: specify that the order applies for general or specific purposes: specify the purpose or purposes for which the order is made: specify a date after which the order ceases to have effect: in relation to a mandated iwi organisation, (i) (ii) (iii) require new elections or the appointment of office holders in accordance with the constitutional documents of the mandated iwi organisation: require Te Ohu Kai Moana Trustee Limited to suspend recognition of a mandated iwi organisation until specified changes are made to its constitutional documents: until the Judge or the Court is satisfied that the dispute has been satisfactorily resolved, prevent an action (A) to allocate and transfer settlement assets under section 130 or section 135 of the Maori Fisheries Act 2004: 28 Taitokerau MB 234

19 (B) to pay income under section 76 of the Maori Fisheries Act 2004: (C) to distribute trust income under section 83 or section 98 of the Maori Fisheries Act 2004: (iv) specify additional conditions or requirements necessary (A) (B) to assist in the timely resolution of the dispute; or to prevent prejudice to the interests of the mandated iwi organisation or the members of its iwi: (g) make orders as to costs under section 79: (h) make other orders not inconsistent with the Maori Fisheries Act 2004, as the Judge or Court considers appropriate. (2) The Judge or the Court, at the request of any party, may also order, as considered appropriate, that an action referred to in subsection (1)(f)(iii) be subject to an interim injunction until (d) the date specified in the order; or the conditions specified in the order are met; or a further order is made by the Court; or the order ceases to have effect. (3) If the Court makes an order under subsection (1)(f)(iii) or subsection (2) that an action be prevented or be subject to an interim injunction, as the case may be, the affected assets must be held in trust by Te Ohu Kai Moana Trustee Limited in accordance with section 118A. 30 Maori Land Court's jurisdiction to advise on or determine representation of Maori groups (1) The Maori Land Court may do either of the following things: advise other courts, commissions, or tribunals as to who are the most appropriate representatives of a class or group of Maori: determine, by order, who are the most appropriate representatives of a class or group of Maori. (2) The jurisdiction of the Maori Land Court in subsection (1) applies to representation of a class or group of Maori 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 Maori Land Court, and the Maori Land Court has the power and authority to give advice and make determinations as the Court thinks proper. 30H Orders (1) In making orders under section 30 and sections 30B to 30I, the Judge or the Court, as the case may be, may do 1 or more of the following: 28 Taitokerau MB 235

20 (d) (e) (f) specify the duties and powers of the representatives of a class or group of Maori and impose conditions on the exercise of those powers: incorporate or restate the terms of an agreement reached by the persons participating in an application. incorporate the terms that express the outcome of mediation: specify that the order applies for general or specific purposes: specify the purpose or purposes for which the order is made: specify a date after which the order ceases to have effect. (2) Neither a Judge nor the Court has jurisdiction to make an order that binds the Crown in relation to applications concerning Treaty settlement negotiations unless the Crown agrees to be bound. Māori Fisheries Act 2004 Preamble (1) By the Treaty of Waitangi, the Queen of England confirmed and guaranteed to the chiefs, tribes, and individual Maori the full, exclusive, and undisturbed possession of their fisheries for so long as they wished to retain them: (2) Maori claimed in proceedings in the High Court and in various claims to the Waitangi Tribunal that the quota management system introduced by the Fisheries Amendment Act 1986 was unlawful and in breach of the principles of the Treaty of Waitangi, or had no application to Maori fisheries (including commercial fisheries): (3) In legal proceedings, Maori obtained from the High Court and the Court of Appeal, by way of interim relief, a declaration that the Crown ought not to take further steps to bring the fisheries within the quota management system: (4) The Maori Fisheries Act 1989 was enacted to make better provision for the recognition of Maori commercial fishing rights secured by the Treaty of Waitangi. The Act provided that the Maori Fisheries Commission was to be provided with 10% of all quota holdings then subject to the quota management system, or the equivalent value in cash as compensation for commercial fishing claims: (5) A Deed of Settlement dated 23 September 1992 was entered into between the Crown and representatives of the New Zealand Maori Council, the National Maori Congress, and iwi: (6) In that Deed of Settlement it was agreed that the settlement (which was ultimately for the benefit of all Maori), the implementation in legislation of the agreements made in that Deed, and the continuing relationship between the Crown and Maori, would constitute a full and final settlement of all Maori claims to commercial fishing rights: (7) The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, an Act to give effect to the settlement of claims relating to Maori fishing rights, provided for the implementation of the Deed of Settlement through the following means: 28 Taitokerau MB 236

21 (d) (e) (f) reconstitution of the Maori Fisheries Commission as the Treaty of Waitangi Fisheries Commission; and payment by the Crown to the Treaty of Waitangi Fisheries Commission of a sum of $150 million to be used for the development and involvement of Maori in the New Zealand fishing industry, including participation in a joint venture with Brierley Investments Limited to acquire Sealord Products Limited, a major fishing company; and provision for the allocation to the Treaty of Waitangi Fisheries Commission of 20% of quota for any new quota management stocks brought within the quota management system; and provision for the making of regulations to recognise and provide for customary food gathering by Maori; and empowerment of the Treaty of Waitangi Fisheries Commission to allocate the assets held by the Maori Fisheries Commission at the settlement date specified in the Deed of Settlement, after considering how best to give effect to the resolutions adopted by the Annual General Meeting of the Maori Fisheries Commission on 25 July 1992 and reporting to the Minister of Fisheries for approval of that scheme of allocation; and empowerment of the Treaty of Waitangi Fisheries Commission, after full consultation with Maori, to develop and report to the Minister on proposals for a new Maori Fisheries Act that would provide (i) (ii) a scheme for identifying the beneficiaries and their interests under the Deed of Settlement; and a procedure to allocate the assets of the Treaty of Waitangi Fisheries Commission (other than those held prior to the signing of that Deed): (8) The Crown, through the provisions of the Fisheries Act 1996, allocates to the Treaty of Waitangi Fisheries Commission 20% of quota for any new quota management stocks brought within the quota management system: (9) The Treaty of Waitangi Fisheries Commission, having considered its duties under the Maori Fisheries Act 1989 and the Deed of Settlement, has examined alternative methods for allocating its assets, produced discussion material, and consulted with iwi and Maori on the allocation of the assets referred to in Schedule 1A of the Maori Fisheries Act 1989: (10) In 1998 the Treaty of Waitangi Fisheries Commission developed an optimum model for allocation. The bases for that model have been challenged in successive court actions and overall have been found to have been consistent with the intent of the Deed of Settlement: (11) The Judicial Committee of the Privy Council, in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2002] 2 NZLR 17, held that the obligations of the trust imposed by the Deed of Settlement required the benefits of the settlement to be allocated to iwi, meaning the traditional tribes, for the ultimate benefit of all Maori: 28 Taitokerau MB 237

22 (12) Subsequently, the Treaty of Waitangi Fisheries Commission considered and took into account the findings of the courts as to its duties under the Maori Fisheries Act 1989 and the Deed of Settlement. It examined alternative methods for allocating its assets, produced further consultation material, consulted with iwi and Maori, and after undertaking additional processes to reach agreement on the model, considered that it had secured the maximum possible support for its allocation proposals: (13) In May 2003, the Treaty of Waitangi Fisheries Commission reported to the Minister of Fisheries on its proposal for the allocation of the assets it held on the settlement date specified in the Deed of Settlement: He Kawai Amokura: A model for allocation of the Fisheries Settlement Assets: Report to the Minister of Fisheries: (14) The Minister of Fisheries assessed the proposal of the Treaty of Waitangi Fisheries Commission, in accordance with the requirements of the Maori Fisheries Act 1989 and the Deed of Settlement, and considered the proposal to be consistent with those requirements. He therefore agreed to incorporate the proposal in legislation: (15) The enactment of this legislation will complete implementation of the agreements in the Deed of Settlement between the Crown and Maori in respect of Maori claims to commercial fisheries, as outlined in the Preamble to that Deed and in the Preamble of the Treaty of Waitangi (Fisheries Claims) Settlement Act Purposes (1) The purposes of this Act are to implement the agreements made in the Deed of Settlement dated 23 September 1992; and provide for the development of the collective and individual interests of iwi in fisheries, fishing, and fisheries-related activities in a manner that is ultimately for the benefit of all Maori. (2) To achieve the purposes of this Act, provision is made to establish a framework for the allocation and management of settlement assets through the allocation and transfer of specified settlement assets to iwi as provided for by or under this Act; and the central management of the remainder of those settlement assets. 19 Interpretation In this Act, joint mandated iwi organisation means the first mandated iwi organisation recognised under section 13(1)[, or a new organisation recognised in place of that organisation under section 18E(2),]for the iwi of Hauraki listed in note (1) to Schedule 3: the iwi of Te Arawa listed in note (2) to Schedule 3: (d) Ngapuhi (including Ngati Hine): Ngati Kahungunu (including Rongomaiwahine) 28 Taitokerau MB 238

23 20 Withdrawal of group from joint mandated iwi organisation (1) In addition to the matters required for the constitutional documents of a mandated iwi organisation under section 17, the constitutional documents of a joint mandated iwi organisation must provide, in the cases of the iwi of Hauraki and the iwi of Te Arawa, for any iwi to withdraw, if it so chooses, from the relevant joint mandated iwi organisation; and in the case of Ngapuhi, for Ngati Hine, if it so chooses, to withdraw from the joint mandated iwi organisation of Ngapuhi; and in the case of Ngati Kahungunu, for Rongomaiwahine, if it so chooses, to withdraw from the joint mandated iwi organisation of Ngati Kahungunu. (2) The constitutional documents of each joint mandated iwi organisation must also provide the process that a withdrawing group must undertake in order to withdraw, including giving notice of its intention to withdraw to (i) (ii) Te Ohu Kai Moana Trustee Limited; and the relevant joint mandated iwi organisation; and the process for determining, consistently with the provisions of Part 3, the matters set out in subsection (3); and the criteria that must be met by the withdrawing group in order to complete the process of withdrawal, including having a mandated iwi organisation recognised by Te Ohu Kai Moana Trustee Limited in accordance with section 13(1). (3) The matters that must be determined by the process provided for under subsection (2) are the amount of the notional iwi population specified in column 2 of Schedule 3 for an iwi that must, in each case, be attributed to any withdrawing group; and the division of settlement assets that must be made between the joint mandated iwi organisation and a withdrawing group, including the proportion that the withdrawing group is entitled to receive of (i) (ii) the settlement assets of the joint mandated iwi organisation, on the date when the. withdrawal is complete; and other settlement assets that the joint mandated iwi organisation receives (A) (B) under sections 36(1)(f)(ii), 43, 84(1)(g), and 96(1)(g); and as a consequence of the allocation and transfer of settlement assets under subparts 1 and 2 of Part 3, including quota shares in respect of new species introduced into the quota management 28 Taitokerau MB 239

24 system and transferred to Te Ohu Kai Moana Trustee Limited under section 44 of the Fisheries Act (4) In determining the amount of the notional iwi population to be attributed to a withdrawing group under subsection (3) and the proportion of the settlement assets that a withdrawing group must receive under subsection (3), a joint mandated iwi organisation and a withdrawing group may use any relevant information, including the relevant data from the census of 2001 or 2006 (but no other census data). (5) If a withdrawing group chooses to withdraw from its joint mandated iwi organisation, it must commence the process of withdrawal, in accordance with the process provided for under subsection (2), not later than 5 years after the recognition of the relevant joint mandated iwi organisation under section 13(1). 21 Recognition of mandated iwi organisation of withdrawing group (1) Despite section 13(2), if a withdrawing group notifies in accordance with section 20(2) its intention to withdraw from a joint mandated iwi organisation, Te Ohu Kai Moana Trustee Limited must recognise under section 13(1) a man-dated iwi organisation for the withdrawing group if the with-drawing group has set up an organisation that meets the criteria of section 14 (other than section 14(d)(ii)); and the following further criteria: (i) it has on its register of iwi members no fewer than the minimum number of persons specified in column 4 of Schedule 3, in the proportion that the amount attributed to the withdrawing group under section 20(3) represents of the notional iwi population specified in column 2 of Schedule 3, calculated in accordance with the formula where a b c (ii) is the amount attributed to the withdrawing group under section 20(3) is the total notional population for the iwi set out in column 2 of Schedule 3 is the minimum number of members specified in column 4 of Schedule 3; and it has an asset-holding company, as required by section 12(1)(d). (2) Despite subsection (1), if a group has withdrawn from a joint mandated iwi organisation as provided for under section 20, settlement assets must be distributed under section 36(1)(f)(ii), allocated and transferred under section 43 or Part 3, or payments must be made under section 84(1)(g) or section 96(1)(g), as the case may be, to the relevant joint mandated iwi organisation as if no group had withdrawn from that joint mandated iwi organisation. 28 Taitokerau MB 240

25 22 Transfer of assets (1) A joint mandated iwi organisation must not transfer to a withdrawing group the assets referred to in section 20(3) until the withdrawing group has completed the process of withdrawal in accordance with the criteria provided for under section 20(2). (2) A transfer of assets referred to in subsection (1) must be free of charge to the withdrawing group, other than reasonable administrative costs; and treated as if it were between wholly-owned asset-holding companies of the joint mandated iwi organisation. 23 Voting rights (1) The mandated iwi organisation of a withdrawing group, after it has completed the process of withdrawal provided for under section 20(2), has all the voting rights of a mandated iwi organisation under this Act; and may exercise those rights from the date when it has completed the process of withdrawal. (2) However, only the joint mandated iwi organisation may exercise voting rights in respect of an appointment or removal at a meeting convened under clause 1 or clause 6 of Schedule 8 to appoint or remove a member or alternate member of Te Kawai Taumata; or clause 1 of Schedule 8 to appoint a member of a committee of representatives, as provided for by section 117(1). (3) For the purposes of sections 115(2), 127(3), 137(2), and 138(3), the notional iwi population represented by the mandated iwi organisation of any withdrawing group is the amount attributed to the withdrawing group under section 20(3), and the notional iwi population represented by the joint mandated iwi organisation is the number stated in column 2 of Schedule 3, after subtracting the amount attributed, under section 20(3), to the withdrawing group. 24 Status of Ngati Hine and Rongomaiwahine (1) If Ngati Hine withdraws from the joint mandated iwi organisation of Ngapuhi in accordance with the constitutional documents of Ngapuhi, Ngati Hine becomes, upon completion of its withdrawal, an iwi for the purposes of this Act as if it were listed in Group B NGAPUHI of Schedule 3. (2) If Rongomaiwahine withdraws from the joint mandated iwi organisation of Ngati Kahungunu in accordance with the constitutional documents of Ngati Kahungunu, Rongomaiwahine becomes, upon completion of its withdrawal, an iwi for the purposes of this Act as if it were listed in Group G TAKITIMU of Schedule Taitokerau MB 241