IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV [2016] NZHC TE RUNANGA O NGĀTI MANAWA Plaintiff

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV [2016] NZHC 1183 UNDER IN THE MATTER OF BETWEEN AND the Judicature Amendment Act 1972 an/or Part 30 of the High Court Rules Central North Island Forests Land Collective Settlement Act 2008 TE RUNANGA O NGĀTI MANAWA Plaintiff CNI IWI HOLDINGS LIMITED Second Defendant TE KŌMITI NUI O NGĀTI WHAKAUE Third Defendant TŪHOE ESTABLISHMENT TRUST Fourth Defendant TE MANA O NGĀTI RANGITIHI Fifth Defendant TŪWHARETOA SETTLEMENT TRUST Sixth Defendant RAUKAWA SETTLEMENT TRUST Seventh Defendant TE PŪMAUTANGA O TE ARAWA TRUST Eighth Defendant TE RUNANGA O NGĀTI WHARE Ninth Defendant TE RUNANGA O NGĀTI MANAWA v CNI IWI HOLDINGS LIMITED [2016] NZHC 1183 [3 June 2016]

2 CIV BETWEEN AND TE RUNANGA O NGĀTI MANAWA Applicant MOANA JACKSON, TAHU POTIKI AND WAYNE NGĀTA First Respondents CNI IWI HOLDINGS LTD Second Respondent Hearing: 9 March 2016 Counsel: H A Cull QC and R N Zwaan for Applicant P J Radich QC, G M Richard and RBD Drummond for Second Respondent FMR Cooke QC for Fourth and Sixth Defendants M J Neil for Seventh Defendant D H Stone for Eighth Defendant J P Ferguson for Ninth Defendant No appearance for Third and Fifth Defendants Judgment: 2 June 2016 RESERVED JUDGMENT OF ELLIS J I direct that the delivery time of this judgment is 4.30 pm on the 2 nd day of June 2016

3 Table of Contents The Deed of Settlement [9] The Trust Deed and Shareholders Agreement and the Company [10] Central North Island Forest Lands Collective Settlement Act 2008 [20] The Second Schedule tikanga based resolution process [25] The appointment of the adjudication Panel [37] The joint statement of issues [43] The Panel s decision and the aftermath [46] Ngāti Manawa s claims [55] The 2011 claim [55] The judicial review proceedings [59] The issues and jurisdictional matters [61] The Panel s obligations [73] What does allocation require? [76] Was the Panel s decision nonetheless one that was permitted by cl 6(14)(e)?[84] Has the Company done what it was required to do? [91] What now? [95] Result [97]

4 [1] In 2008 the Crown and eight Central North Island (CNI) iwi reached an historic Treaty settlement involving Kaingaroa State Forest lands and the Crown Forestry Licences (CFLs) attaching to them. As a consequence, the lands were transferred to CNI Iwi Holdings Ltd (the Company) that was 90 per cent owned by the eight iwi. 1 The plaintiff, Te Runanga O Ngāti Manawa (Ngāti Manawa) is one of those eight. 2 [2] At the time of the settlement, agreement had been reached between the eight iwi as to their respective shares of the rentals, at least for the time being. Those shares were broadly based on the respective populations of each iwi. Ngāti Manawa s agreed initial entitlement was in the vicinity of six per cent of the rentals from the CFLs. As far as the lands themselves were concerned, the Company was to hold them in trust, with the intention that further agreement would be reached amongst the eight iwi as to their final distribution, or allocation between them. [3] The process by which the forest lands would ultimately be apportioned was agreed as part of the settlement and was appended as the Third Schedule to the CNI Forests Iwi Collective Deed of Settlement (the Deed) and was given statutory recognition in the Central North Island Forest Lands Collective Settlement Act 2008 (the Act). That resolution process involved three potential stages: negotiation (kanohi ki te kanohi), mediation and, failing both of those, binding adjudication. Timeframes within which the various stages of the process were to be completed were specified. [4] The resolution process set out in both the Deed and the Act provides that the land will be allocated: 3 on the basis of mana whenua and the agreements reached between iwi in a kanohi ki te kanohi process or otherwise determined by the resolution process. [5] In turn, the test of mana whenua is defined as: Ten per cent of the shares were held by the Crown. The other seven are the third to ninth defendants. Clause 2 of sch 2 of the Central North Island Forest Lands Collective Settlement Act 2008 and sch 3 of the Deed of Settlement. Clause 4.

5 The mana that iwi traditionally held and exercised over the land, determined according to tikanga including, but not limited to, such factors as Take whenua; and Demonstration of ahi ka roa, ahi tahu tahu, or ahi matao-tao. [6] In the years following the settlement it has not proved possible to arrive at allocation decisions in relation to all the lands either by agreement or mediation. 5 An adjudication panel (the Panel) was therefore convened in accordance with the resolution process. The Panel then determined the respective mana whenua interests in the disputed lands. The Panel did not, however, determine how those interests could or should be recognised in any practical way. The Panel considered that tikanga required that that issue be resolved by further negotiation between the iwi themselves. [7] Ngāti Manawa had claimed a mana whenua based share of the lands that was considerably larger than their previously agreed share of rental income from the CFLs. Its position in relation to its mana whenua interests was, in general terms, supported by the Panel s findings. But the fact that the Panel declined to determine how those mana whenua interests should be recognised in any practical sense means that, absent agreement with the other seven iwi, Ngāti Manawa is unable to reap any tangible benefit from them. The present two sets of proceedings are the result. 6 [8] Before turning to consider Ngāti Manawa s claims, however, it is necessary to set out the relevant aspects of the Deed of Settlement, the Trust Deed and Shareholder s Agreement (TD&SA), the Company s constitution and the Act in a little more detail. The appointment of the Panel, its determination and the aftermath will also be addressed by way of background. 5 6 There are some limited exceptions; agreement has been reached in relation to certain parts of the lands. The defendants in to the 2011 proceedings are the Company and the other seven CNI iwi. The defendants in the 2015 (judicial review) proceedings are the Panel and the Company. The Company appeared by counsel at the hearing principally in a neutral role to assist the Court. The Panel has questioned the Court s jurisdiction but otherwise abides.

6 The Deed of Settlement [9] The Deed is entered into between Her Majesty the Queen and the eight CNI iwi, who are jointly referred to as the CNI (Central North Island) Forests Iwi Collective or, simply, the Collective. The Deed relevantly records and provides that: the Courts do not have jurisdiction in respect of the Deed, the settlement legislation, the CNI Forests Lands Claims or the redress, except relating to the interpretation and implementation of the Deed and the settlement legislation: cls and 2.9.4; the parties acknowledge that the execution of the Deed and outcomes arising from the settlement are intended to honour the Treaty principles, that the Deed represents the result of intensive negotiation conducted in the spirit of good faith and compromise, and that the settlement is intended to contribute to long term, sustainable economic development of each collective member and the collective as a whole: cl ; (c) the Collective s desire is to secure the return of the forests land on the principle of i riro whenua atu me hoki whenua mai (as the land is taken, so it should be returned): cl ; and (d) the Members of the Collective agree to the Collective s Allocation Agreement set out in sch 3, which provides the process for determining how the lands will be allocated amongst the Members and that this allocation will be determined, among other things, on the basis of mana whenua and the principles of tikanga: cl The Trust Deed and Shareholders Agreement and the Company [10] The TD&SA comprises sch 10 of the Deed of Settlement.

7 [11] The TD&SA appoints the Company as the trustee and defines the beneficiaries as the persons registered on the Agreed Proportion Register which records agreed shares of the beneficial entitlements. In reality, the beneficiaries are the eight post settlement governance entities (PSGEs) established for each of the CNI iwi respectively. [12] Clause 7.3 provides that: distributions of income (the rentals from the CFLs) will be in accordance with the agreed proportions until the Collective Final Allocation Date (2043 or a date before that chosen by unanimous resolution); and after the Final Allocation Date, income will become an entitlement of the Beneficiary to whom that part of the land is distributed under the Collective s Allocation Agreement. [13] The Collective s Allocation Agreement is defined in cl 1.1 to mean: the Collective s tikanga-based resolution process for CNI Forests Land allocations, including the processes by which a final allocation agreement is to be drafted, adjudicated (if necessary) and completed, as set out in Schedule 5 ; 7 and where the context requires, means that final allocation agreement. [14] It may be observed that a Final Allocation Agreement and a distribution of the land pursuant to it are thus prerequisites to any change being made to the agreed proportions of CFL rentals, whether in 2043 or earlier. 8 [15] As far as the distribution of land is concerned, cl 7.4 provides (inter alia) that: no distribution may be made except in accordance with the Collective s Allocation Agreement (see definition above); 7 8 Schedule 5 is replicated in sch 2 of the Act and sch 3 of the Deed of Settlement. Changes to the agreed shares of the rentals may also be made by unanimous agreement under cl 8.1.

8 if the Collective s Allocation Agreement has determined ultimate ownership of part or all of the land and led to agreement that it should be distributed, the trustee must give effect to that agreement; (c) if the Collective s Allocation Agreement has determined that part of the land should be distributed before the Final Allocation Date, unless otherwise agreed by unanimous resolution, the terms of transfer must provide that the trustee retains within the Trust all rights relating to management and income. [16] Provisions relating to management of the trust are set out at cl 11, including: at 11.1(j) the duty to provide logistical support to the processes of the Collective s Allocation Agreement and, in particular, undertake those duties on its part that are expressly referred to in that agreement; at 11.11, that the trustee shall have all powers, authorities and discretions necessary to enable it to carry out the purposes of the trust or otherwise perform and comply with its obligations and duties under the Deed; and (c) at 11.13, that the trustee covenants to ensure the trust is carried on in a proper and efficient manner and to exercise diligence in carrying out its functions and duties. [17] The period of the trust is set out at cl 24 as either the date agreed by unanimous resolution, or 78 years from the date of the deed less one day. It notes that the perpetuity period is 80 years. [18] The procedure on winding up is set out at cl 25, including in specie distributions at 25.6: The trustee may, instead of realising an asset, transfer the asset, or shares in the asset, in specie to one or more beneficiaries; and

9 The trustee may distribute the assets in accordance with the Agreed Proportions (except to the extent that there was unanimous agreement under the Collective s Allocation Agreement to some other basis of allocation) on the basis they will collectively settle the assets on a replacement trust. [19] In terms of the Company itself, the shareholders were initially the Crown and the eight iwi. From 30 June 2015 the Crown s shareholding ceased. The company constitution provides that the maximum number of directors is a number equal to two times the number of shareholders. It therefore presently has sixteen directors. Central North Island Forest Lands Collective Settlement Act 2008 [20] Section 3 of the Act provides that its purpose is to: give effect to the vesting of the Crown forest land in the Company and the transfer of rentals to the Company, in order to enable those assets to be allocated to the CNI Iwi Collective and any other CNI claimants in settlement of their historical claims; record the principles and process by which the allocation of the CNI forests land and accumulated rentals is to be achieved; and (c) exclude the jurisdiction of the courts and Waitangi Tribunal in relation to the historical CNI forests land claims. [21] The Crown forest land to with the Act relates is described in the first Schedule to the Act. The land is divided into 23 blocks which are, as I understand it, individual CFL areas. [22] Section 7 reflects cl of the Deed and excludes the courts jurisdiction in relation to matters arising under the Deed or the Act, other than in relation to the interpretation or implementation of the Deed or the Act.

10 [23] The principles governing the allocation of the CNI forests lands are set out in s 14, which provides that: the iwi of the CNI Iwi Collective may, in accordance with the resolution process set out in Schedule 2, agree among themselves as to which specific area or areas is or are to be transferred to the iwi of the Collective. [24] Section 16 provides that if any iwi of the Collective or any two or more iwi acting jointly request the Company to transfer an area of the CNI forests land to them, and the request complies with the terms of an allocation agreement under s 14 and the TD&SA, then the Company must transfer the land in accordance with the request. The Second Schedule tikanga based resolution process [25] As foreshadowed by s 14, sch 2 sets out the tikanga based resolution process. [26] Clause 1 of the schedule defines Final Allocation Agreement, as the document prepared by the company that records the outcome of the resolution process in this schedule. 9 Clause 7 puts timeframes around the Board of the Company completing that agreement and also provides: the Final Allocation Agreement will be final and binding; and that if, after the expiry of the relevant timeframe, the Company receives a written request from a governance entity it will transfer the relevant CNI forests land to that entity in accordance with the Final Allocation Agreement and the TD&SA; (i) and (inter alia) if the request is made prior to the final allocation date (2043), the rental income continues to be paid and distributed in accordance with the agreed proportions; but (ii) after the final allocation date income will run with the land ; 9 The outcome of the process is also referred to as an agreement regardless of whether it is reached by negotiation or adjudication.

11 (c) if for any reason the Final Allocation Agreement is not finalised, or is subject to litigation, areas of the CNI forest lands for which agreement is reached may be transferred; and (d) if agreement is reached not to transfer areas of the CNI forests land or if iwi do not request a transfer, the Company will retain title, subject to the vested beneficial interest entitlement of iwi in accordance with the Final Allocation Agreement. [27] The principles of the resolution process are set out in cl 2 and include: that the land will be allocated to the iwi on the basis of mana whenua and the agreements reached between iwi in a kanohi ki te kanohi process or otherwise determined by the resolution process; a commitment by the Collective to iwi deciding upon the allocation of the land for themselves, on their own terms, and answerable to one another; (c) an acknowledgment by iwi of their commitment to a resolution process that enhances and promotes the mana and integrity of all iwi; is open and transparent; promotes whanaungatanga, manaakitanga, and kotahitanga amongst the iwi; and recognises the desirability of post-settlement collaboration between them in the collective management of assets. [28] Clause 3 relates to governance aspects of the resolution process, and relevantly provides that: each iwi will be represented in the process by their own governance entity (the PGSEs); the resolution process will be governed by the Company and the governance entities in their capacity as shareholders; and

12 (c) the governance entities may amend the resolution process by unanimous resolution in accordance with the procedures in the TD&SA. [29] Clause 4 sets out Stage 1 of the resolution process, namely the identification by iwi of claimed mana whenua interests. This requires each iwi to provide maps to the Company indicating the extent of their claimed interests. The clause also sets out the mana whenua test (see [5] above). [30] Stage 2 (kanohi ki te kanohi negotiation) is dealt with in cl 5. This requires iwi with overlapping mana whenua claims to meet with each other to try to reach agreement on allocation of the disputed lands. Sub-clause (3) is worth setting out in full. It provides: (3) The iwi concerned in each process will endeavour to reach consensus on the allocation of the CNI forests land in question, having regard to the strength of the mana whenua interests. Innovative solutions that reflect tikanga, whanaungatanga, manaakitanga and kotahitanga, and the complexity of mana whenua interests could include, but are not limited to (c) (d) (e) joint or multiple ownership of land as tenants in common, either divided in equal shares or proportionally according to the respective interests of the iwi; and subdividing land and allocating the subdivided portions to each iwi; and agreeing to exchange interests in more than 1 block, so that exclusive interests can be granted to each of the blocks; and one iwi becoming the owner, but acknowledging the relationship of other iwi with the land in an agreed manner; and agreeing not to transfer title of the land from the company, but acknowledging mana whenua interests in a manner agreed by the iwi. [31] Clause 6 sets out Stage 3. It provides that the Company is to record in the Final Allocation Agreement all the agreements reached by the end of Stage 2 and also those areas which remain disputed. The iwi interested in the disputed lands are

13 then required to decide whether to refer the dispute to mediation ( to endeavour to reach agreement ) or to adjudication ( in order to determine the dispute ). [32] The respective qualifications required of any mediators and adjudicators appointed under cl 6 are: a mediator should be fluent in te reo Māori, and have knowledge of, and be skilled in, tikanga based dispute resolution ; whereas a member of an adjudication panel is to be fluent in te reo Māori, and be knowledgeable on matters of tikanga, including in particular how mana whenua is held and exercised by iwi. [33] The adjudication process itself is dealt with in sub-cls 6(10) to 6(15) which provide that: if a dispute is referred to adjudication, the board will appoint an adjudication panel; the Panel may seek legal or expert advice; (c) the Panel will hear the claims of the iwi interested in the disputed land; (d) subject to certain specified requirements, the Panel has complete discretion to determine the process for the hearing. Those requirements include that: (i) the iwi involved are to provide an agreed joint statement to the Panel outlining the nature of the dispute; and (ii) there will be written evidence and written submissions; (iii) each claimant iwi has a right of reply;

14 (iv) there is a right to question witnesses; and (v) lawyers may attend and present submissions but will not be entitled to cross-examine. [34] Sub-clause 6(14) is also worth setting out in full. It provides: The adjudication panel will reach a decision on allocation of the disputed lands by 25 June 2011, in accordance with the mana whenua test set out at clause 4(2). The adjudication panel will have the power to (c) (d) (e) allocate the land to 1 iwi; or allocate the land to more than 1 iwi in joint or multiple ownership as tenants in common in a block, either divided in equal shares or proportionally according to the respective interests of the iwi; or subdivide the block and allocate the subdivided portions to individual iwi; or allocate the land to 1 iwi, but acknowledge the relationship of the other iwi with the land in a specified manner; or implement any other solutions proposed by 1 or more of the parties, subject to any modifications determined by the adjudication panel. [35] Sub-clause 6(15) says that the Panel is to give a decision with reasons and that the decision will be final and binding on all the parties. [36] It is against that framework that I turn now to summarise what happened in the present case. The appointment of the adjudication Panel [37] Complete agreement was not reached as a result of the Stage 2 kanohi ki te kanohi process by the stipulated date of 30 June Potential resolution of the remaining disputes by mediation was explored but no agreement could be reached as to the identity of the mediator before the 30 November 2010 deadline. Instead, it was agreed that the adjudication process should be implemented in relation to nine of

15 the CFL blocks totally approximately 100,875 hectares. 10 Panel was appointed by way of a counter-signed letter (the reference). On 4 February 2011 the [38] The Panel had concerns about its ability to complete its task within the statutory timeframes. The Company therefore sought and obtained a declaration from the High Court to the effect that the time frames in sch 2 could be altered or extended by unanimous resolution. 11 The CNI iwi then twice agreed to extend the time for completing the adjudication process until (ultimately) 30 June [39] The reference to the Panel begins by setting out the background to the dispute, including that: pursuant to the tikanga-based resolution process set out in sch 2 of the Act and sch 5 of the TD&SA, the Company was required to appoint a panel to hear the dispute; under the resolution process, the CNI forests land must be allocated to iwi on the basis of the mana whenua test, either through agreements between iwi at stages 1 and 2, or failing agreement, by mediation and/or adjudication under stage 3; (c) while stage 1 and 2 had produced some agreements it had not been possible to achieve a complete Final Allocation Agreement, and agreement had not been reached by mediation either; 12 (d) the eight iwi PGSEs had meet more than thirty times since the original deadline in 2011; As I understand it, these nine blocks are not, however, the only CFL areas that remain in dispute. The outcome of these proceedings will therefore have some importance for future dispute resolution. CNI Holdings Limited v Raukawa Settlement Trust HC Wellington CIV , 14 June There was, in fact, no mediation.

16 (e) the eight PGSEs had extended the relevant statutory timeframes and also made the following unanimous resolutions amending the resolution process: (i) that kanohi ki te kanohi is the correct approach for negotiations about satellite forests; 13 (ii) that the agreements already reached by iwi shall be given effect in the Final Allocation Agreement; and (iii) that the Pukuriri and Wamaroke blocks would be formally withdrawn from adjudication; (f) that seven of the eight CNI iwi were agreed that the Kaingaroa lands should remain in one title in perpetuity; (g) that the aspiration of the eight iwi was that the adjudication will recognise the relations and process of kanohi ki te kanohi and help deal with the small gaps that remained in reaching agreement over all the lands; (h) that the adjudicators were required to give their written decision by 30 April 2014 and the Company was required to complete the final allocation agreement by 30 June 2014; (i) that the process is to be governed by the Company and the PGSEs as shareholders. [40] The background part of the reference concludes by stating: the adjudicators are to hear the claims of the iwi interested in the disputed lands. Having done that, the adjudicators are to reach a decision on the allocation of the disputed lands in the form of one of the allocation options set out in subparagraphs to (e) of clause 6(14). 13 Satellite forests are those without Kaingaroa in the CFL name.

17 Therefore, the adjudicators task is, based upon the evidence and submissions presented to them, to allocate the disputed lands as between the iwi in one of the ways set out in clause 6(14) and to provide reasons for those allocation decisions. [41] Most of the substantive provisions are not presently relevant, although it is plain that by signing the reference the Panel members were entering into a contractual arrangement. 14 The termination clause provided that subject to the Company s specified rights to terminate: once you have accepted this assignment you must remain engaged as an adjudicator for the fixed term referred to above and you must complete the Task. [42] The letter ends with an entire agreement clause and a statement that This is not an arbitration agreement under the Arbitration Act The joint statement of issues [43] Despite cl 6(13) of the second schedule no single agreed joint statement was submitted to the Panel identifying the nature of the dispute. Rather, the iwi determined (as they were entitled to do) that they would each file a statement of position which was to be collectively regarded as a joint statement. It seems a template was used which had the headings: Land Title (Collective or Separate) Native Land Court (Records? Decisions? Titles?) (c) Mana Whenua Association (d) Allocation Approach [44] The individual statements of position therefore set out (inter alia): any agreements reached with other iwi about particular blocks of land; 14 They were required to sign an acknowledgement that they had had the opportunity to seek advice on the agreement, that they had read and understood it and that its terms could only be varied in writing by agreement between the adjudicators and the Company.

18 the particular mana whenua claims made by the iwi concerned; (c) the particular iwi s view on whether the land should be held in one or multiple titles; (d) the particular iwi s view as to the correct allocation approach including how title to the lands should be held. [45] The statements make it clear that Ngāti Manawa was the only iwi which did not support the lands being held in one title. The Panel s decision and the aftermath [46] The Panel delivered its determination on 26 June Under the heading The Way Forward the Panel explained its thinking as follows: The Panel appreciates and shares the often expressed concern that the whenua must never be taken again of exposed to risk. It was suggested that one way in which this might be guarded against was to keep all of the interests together under one title and apportion appropriate shares in any consequent commercial benefits through the establishment of a new legal entity based on a tenancy in common, a tipuna title, or some other form of a Shared Ownership-Single Title Model. The Panel acknowledges the careful considered thought and indeed the manaaki behind such proposals. There may be particular Pākehā legal difficulties attendant on such proposals but we wish to address the concerns which appear to have prompted them. For example there appeared to be a real concern that any resolution involving the specific allocation of certain areas to individual iwi might jeopardise the cultural wholeness of the Kaingaroa and jeopardise the potential economic benefits by losing any economy of scale. It is our respectful conclusion that this need not be the case. Firstly in our view the future benefits and the tikanga requirements that go with the exercise of mana whenua, and the application of the mana whenua test, do not necessarily depend upon a notion of the Kaingaroa as a whole or indeed the establishment of a single title model. Rather they depend firstly upon whether the factors or principles that make up mana whenua are met in relation to particular whenua. Secondly they depend upon redressing the wrongs that the Crown has done to each iwi and the consequent honest endeavours by all concerned to use the

19 redress in a way that preserves the whakapapa relationships and enhances and promotes the mana and integrity of all iwi. Indeed it is our view that if the historical breaches of the Treaty of Waitangi by the Crown and the unjust impacts of those breaches on individual Iwi are acknowledged in a meaningful way then it is possible for all parties to work together knowing that grievances and divisions that have lingered for too long can finally be put aside. Secondly it is also our view that the number of agreements already reached in various CFL s indicates that such a way forward is possible, both culturally and economically. In those cases there has been agreement on the principles of mana whenua that apply and the nature of the whenua upon which it is exercised. Having agreed on allocation the parties have then also agreed on a way forward within the wider setting of the Kaingaroa as a whole. We believe it is possible to do the same in relation to the CFL s that are the subject of this adjudication. For that reason we make a number of specific allocation decisions rather than recommending a single or joint title model. If some formal mechanism is required to ensure respectful and ongoing cooperation based on whakapapa relationships iwi might like to consider drawing up a Memorandum of Understanding to that effect once the allocations are determined. (emphasis added] [47] In terms of the actual adjudication, the Panel said: The Panel has concluded that in applying the mana whenua test allocation can be made to iwi in accordance with clause 6(14)(e) of the Act which empowers the Panel to implement any other solutions proposed by 1 or more of the parties, subject to any modifications determined by the adjudication panel. We have given weightings to each of those interests which reflect the reality of the mana whenua which each iwi asserted over a particular whenua based on our understanding of the kōrero given to us. The weightings do not represent percentages based on population or other extrinsic matters but the tikanga matrix within which mana whenua might be acquired and held or acquired and lost. Instead they are a direct reflection of the extent of mana whenua recognised during the process. It will be up to each of the iwi recognised to hold mana whenua within each CFL how this weighting is recognised in a practical sense. They will need to decide if it represents and ownership right in the sense of private property, does it lead to subdivision within the CFL allocating certain estates directly to each Iwi, will it represent a proportionate allocation of shares or income that could even theoretically be traded amongst each other or across CFLs or will it be the opportunity to give effect to the proposal some Iwi forwarded about keeping the Kaingaroa intact albeit secure in the knowledge that each Iwi fully understands their relative allocations.

20 [48] The different weightings were based on identified substantive interests (given a weighting of 4), medial interests (given a weighting of 2) and limited interests (given a weighting of 1). As the Panel then explained: Therefore within a CFL that one Iwi with a substantive interest, two with a medial interest and one with a limited interest there would be, in effect, nine shares. As discussed above the way these interests are given effect will be up to the iwi but suffice to say we believe this allows the terms of reference to be given effect as it promotes whanaungatanga, manaakitanga and kotahitanga amongst the Iwi and recognises the desirability of postsettlement collaboration between then in the collective management of assets. [emphasis in original] [49] The upshot from Ngāti Manawa s perspective was that it was found to have mana whenua interests amounting to approximately 30 per cent of the total land across the nine blocks that were the subject of the adjudication. To the extent that the determined mana whenua interests might be expected eventually to be reflected in Ngāti Manawa s share of the CFL rentals, that determination would result in a 500 per cent increase. [50] On 1 July 2014 the Company produced a Final Allocation Agreement appending the Panel s determination. That step was taken based on legal advice and with the unanimous agreement of the PSGE shareholders. [51] Following the execution of the Final Allocation Agreement, Ngāti Manawa says that it attempted further negotiations with the other iwi, but was unsuccessful. On 3 September 2015 Ngāti Manawa asked the Company to reconvene the Panel in order to complete its decision by actually allocating the land. The Company declined to do so because it said that acting on such a request would require the consent of all the shareholders. [52] On 1 October 2015 Ngāti Manawa wrote again to the Company under s 16 and cl 7(3) requesting that certain of the forest land be transferred to the iwi. The land sought to be transferred was identified on maps provided by Ngāti Manawa to the Company and was said to accord with the weightings contained in the Panel s determination. Ngāti Manawa also asked the Company to arrange a survey of the land according to the proposed survey lines on the maps.

21 [53] By letter dated 8 October 2015 the Company declined these requests, too. 15 It said: Under clause 7.4 of the Trust Deed and Shareholders Agreement between the Crown, CNI Iwi Holdings Limited, and the CNI Forests Iwi Collective, Holdings may not make a distribution (or transfer) of the CNI Forests Land to any of the Eight CNI PSGEs except in accordance with the Collective s Allocation Agreement. [54] After noting that the current Collective s Allocation Agreement was the Final Allocation Agreement, the Company said: Under the Final Allocation Agreement there is no lawful direction to Holdings or lawful basis for Holdings to transfer the Forest Land to Ngāti Manawa which would satisfy the requirements of clause 7.4 of the TD&SA or clause 7(3) of the Mana Whenua Process. Ngāti Manawa s claims The 2011 claim [55] The 2011 claim has been amended significantly since it was first filed and now reflects these more recent events. As so amended, it pleads three causes of action against the Company, as follows. [56] The first cause of action is for breach of statutory duty, and alleges that the Company: failed to exercise its statutory power and function to ensure the Panel exercised its powers under cl 6(14) appropriately and ensure that the adjudication process allocated land to iwi as prescribed by the Act ; failed to perform its statutory duty to transfer the land on receiving a written request from a governance entity, under s 16 and cl 7(3) Second Schedule. 15 The letter was apparently not received by Ngāti Manawa until December.

22 [57] The second and third causes of action are against the Company for breach of trust (at common law, under the Act and under cl 11 of the TD&SA) and breach of fiduciary duty in allegedly failing to: provide logistical support for the resolution process contained in schedule 2 of the Act and schedule 5 of the TD&SA; use its best endeavours and skill to ensure that the affairs of the Trust are conducted in a proper and efficient manner; (c) use due diligence and vigilance in the exercise and performance of its functions powers and duties as trustee; (d) oversee, implement and ensure the adjudication process was completed in accordance with the sch 2/sch 5 process; (e) transfer the relevant land to Ngāti Manawa. [58] The same relief is sought as for all three causes of action, namely declarations and orders by way of mandatory injunction: requiring the Company to reconvene the Panel to complete the allocation process, namely by allocating and/or subdividing the land or block in accordance with the findings of the Panel in the mana whenua process; requiring the Company to transfer the CNI Forests Land to Ngāti Manawa pursuant to the request of 1 October 2015, in accordance with the maps then provided; (c) requiring the Company to instruct the Crown to survey the forest lands identified in the maps in order to implement the transfer of the lands to Ngāti Manawa;

23 (d) transferring the lands to Ngāti Manawa in accordance with the mana whenua findings and as identified in the maps provided to the Company; (e) directing the Crown to survey the lands in order to implement the transfer. The judicial review proceedings [59] The review proceedings are brought against the Company and the Panel itself. Although it contains multifarious allegations under all of the traditional grounds of review, they seem to me to be boil down to allegations that: the Company erred: (i) in failing to ensure that the Panel discharged its functions under the second schedule to the Act; (ii) in refusing to reconvene the Panel without the consent of all iwi; (iii) in adopting the Findings of the Panel as a Final Allocation Agreement when the powers under cl 14 had not been properly exercised by the Panel ; (iv) in refusing to comply with its statutory obligation to transfer the land to Ngāti Manawa pursuant to its duties under s 16 and cl 7(3) of the second schedule; the Panel erred in: (i) misdirecting itself and failing to exercise its powers under cl 6(14) of the second schedule to allocate the disputed lands to one or more iwi;

24 (ii) misinterpreting cl 6(14)(e) because it was not implementing any other solutions proposed by one or more of the parties ; (iii) believing it had the power to require iwi to undertake further kanohi ki te kanohi negotiations; (iv) failing to provide an opportunity to comment on any other solutions which had been proposed by one or more of the parties before the Panel could implement those solutions. [60] Declarations of illegality and invalidity are sought, as well as positive orders of the kind sought in the 2011 proceeding. The issues and jurisdictional matters [61] Notwithstanding the way the claims were pleaded and their primary focus on the Company s role, the parties were essentially agreed that the critical issues related to certain aspects of the Deed and the Act and, in particular: the obligations cast on the adjudication Panel established pursuant to the Deed and the Act, including whether: (i) the Panel has allocated the disputed lands; and (ii) the Panel s decision to refer the dispute back for further negotiation was permitted by cl 6(14)(e); and the obligations cast upon the Company in relation to the adjudication process, including whether: (i) in light of the Panel s determination, it was able to complete the Final Allocation Agreement as it did; and (ii) if not, what steps it can and should take to rectify the position.

25 [62] Unsurprisingly, given the nature of these issues, none of the parties sought to submit that the privative clause contained in the Deed and in the Act deprived the Court of jurisdiction. It seems indisputable that engaging with the matters identified above fall squarely within the specified exception, namely matters relating to the interpretation and implementation of the Deed and/or the legislation. [63] But another jurisdictional issue was raised in relation to the judicial review proceedings by counsel for Tūhoe, Mr Cooke QC. He submitted that the Panel s decision is not judicially reviewable because the reference to the adjudicators was an arbitration agreement which is subject only to private law remedies under the Arbitration Act 1996 (the 1996 Act). And if it is an arbitration agreement, he said that Ngāti Manawa s proceedings are well outside the time limits prescribed by that Act. 16 [64] In support of this submission Mr Cooke relied, in particular, on the decisions in: Bidois v Leef, where the Court of Appeal found that an adjudicator s decision under an agreement similar to that which is presently at issue was an arbitration for the purposes of the Arbitration Act; 17 and Ngāti Whakaue v Ngāti Wahiao in which a mana whenua process was treated as an arbitration under the 1996 Act (without dispute on this point). 18 [65] Ms Cull QC submitted in response that any challenge to the Court s jurisdiction on this basis should have been affirmatively pleaded as a defence under HCR Because it had not been, she had been unfairly taken by surprise and was not in a position to argue the matter This submission necessarily relates only to the claim for judicial review against the Panel, not the claim against the Company. Bidois v Leef [2015] NZCA 176, [2015] 3 NZLR 474. Ngāti Whakaue v Ngāti Wahiao [2014] NZHC 2311.

26 [66] Although I have some sympathy with Ms Cull s position, the reality is that the Court cannot assume jurisdiction if it has none. 19 And I accept that it is at least arguable that the agreement entered into between the Board and the Panel is an arbitration agreement as defined in s 2 of the 1996 Act, namely: an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. [67] More particularly, the Court of Appeal s decision in Bidois indicates that there is the requisite defined legal relationship between the parties. In that case there had been an express agreement to arbitrate (termed the Mana Whenua Arbitration Process ) but the High Court had found that the relevant relationship was missing. The Court of Appeal, however, disagreed. [68] In the present case the question would be whether it can be said that there was an agreement to submit the dispute to arbitration, in light of the fact that the reference to the adjudicators expressly stated that This is not an arbitration agreement under the Arbitration Act Apart from that statement, both the reference and the adjudication process itself have all the hallmarks of an arbitration. 20 [69] In the end, however, I have concluded that it does not matter whether the reference to the Panel here constituted an arbitration agreement, for two principal reasons. [70] First, even if the adjudication were to be regarded as an arbitration, s 9(1) of the 1996 Act provides that where a provision of that Act is inconsistent with a provision in any other enactment, the provision in the other enactment prevails. In my view that would mean that the jurisdiction conferred on the Court by s 7 of the Act would prevail over any more limited jurisdiction in the 1996 Act Because I conclude below that it does not matter whether the reference to adjudication constituted an agreement to arbitrate, Ngāti Manawa is not prejudiced by the late raising of the issue. Had that not been the case I would have afforded Ms Cull more time to respond. Although the issue does not seem to have been in dispute in Ngāti Whakaue, it is notable that the Trust Deed in that case contained a process for determining ownership of the land, including adjudication.

27 [71] More significantly, the conclusions I reach later in this judgment mean that, even viewed through an arbitration lens, the Panel s determination here could only be regarded as an interim or partial award. The critical issue of allocation of the disputed lands has not been the subject of any determination at all. On that basis: the time limits contained in the 1996 Act could not apply because these proceedings do not involve Ngāti Manawa seeking recourse against an award, but Ngāti Manawa seeking judicial intervention because of the absence of a completed award; the Panel is not functus officio because it has not completed its task. [72] Accordingly I consider that there is no jurisdictional impediment to considering Ngāti Manawa s claims or the issues as I have redefined them above. I therefore now address those issues, in turn. The Panel s obligations [73] As I have recorded above, an adjudication panel established pursuant to the Act was required by cl 6(14) of the second schedule to reach a decision on allocation of the disputed lands in accordance with the mana whenua test set out at clause 4(2). Clause 6(15) says that the Panel is to give a decision with reasons and that the decision will be final and binding on all the parties. [74] Those obligations were recorded in the reference to the Panel case and reflected in the statements of issues submitted by the parties to the Panel. [75] There is no dispute that the Panel was required to, and did, determine the mana whenua interests of each iwi in the disputed lands. No issue has been taken with that determination. The questions that arise are whether this determination, without more, can properly be seen as an allocation of the disputed lands pursuant to any of sub-cls 6(14) 6(14)(d) (each of which include the word allocate) and/or was permitted by cl 6(14)(e).

28 What does allocation require? [76] It seems clear beyond doubt that the focus and required outcome of the Stage 2 or the Stage 3 processes is an allocation of the disputed lands. Although both Mr Radich QC (for the Company) and Mr Cooke (for Tūhoe) submitted that the mere identification of the various mana whenua interests in the lands could constitute sufficient acknowledgement of those interests to qualify as an allocation I am unable to agree. [77] First, the way in which the word allocation is used in the second schedule supports the conclusion that it is a step additional to, and consequential upon, the determination of mana whenua interests. For example: clause 2(1) provides that the land will be allocated on the basis of mana whenua (and agreements reached or otherwise determined by the resolution process); clause 5(3) (which relates to possible outcomes of the kanohi ki te kanohi process) provides that allocation should occur having regard to mana whenua and then lists five possible innovative allocation solutions, each of which involves dealing with the land in a way that additionally reflects or recognises mana whenua interests; 21 (c) similarly, four of the five solutions afforded to an adjudication Panel by cl 6(14) (which is incorporated in the reference) involve decisions that are expressly predicated upon the prior and separate determination of mana whenua interests. The ambit of the fifth solution is discussed later, below; 22 and Clause 5(3) is set out in full at [30] above. Clause 6(14) is set out at [34] above. Although the options contained in it are expressed in an empowering, rather than directive, way, I do not consider that it would be open to the Panel to decline to do any of them (ie to not allocate at all) essentially because of the clear focus in the resolution process on achieving an allocation outcome or solution.

29 (d) consistent with the above, each of the various statements of position prepared by the eight iwi addressed the issue of allocation approach both separately from the mana whenua issues. 23 [78] Once it is accepted that allocation involves something additional to the identification of mana whenua interests, the question which then arises is what an allocation actually entails. In my view it requires a determination of: whether the identified mana whenua interests are to be directly reflected in the legal ownership of the lands; and if so, how that is to be achieved (by transfer, subdivision, and so on); and (c) if not, where legal title to the disputed lands should reside and how the mana whenua interests are to be otherwise (beneficially) acknowledged or recognised. [79] This view is, I think, also consistent with each of the specific examples of allocation solutions listed in cls 5(3) and 6(14)-(d). [80] That said, however, it is clear from those examples, and from cl 7(6), that allocation need not be focussed on distribution of the land itself or the creation and transfer of new individual titles. Keeping the land in one title is plainly an available option, as is title to some or all of the lands remaining with the Company. That is made clear by: clause 7.4 of the TD&SA which states that If the Collective's Allocation Agreement has determined ultimate ownership of part or 23 Ngāti Manawa s statement of position said that allocation should be in accordance with mana whenua interests.

30 all of [the land] and led to agreement that [it] should be distributed the Trustee must give effect to that agreement. 24 section 14 of the Act, which provides that the CNI iwi may (in accordance with the sch 2 process) agree among themselves as to which specific area or areas of the CNI forests land is or are to be transferred from the Company to the iwi of the Collective; 25 (c) sub-clause 5(3)(e) of the second schedule, which provides that one of the possible options for allocation during the negotiation stage is agreeing not to transfer title of the land from the company, but acknowledging mana whenua interests in a manner agreed by the iwi ; (d) the inclusion in sub-cl 6(14)(e) of the Panel s power to implement any other solutions proposed by 1 or more of the parties, subject to any modifications determined by the adjudication panel which is wide enough to include the power to not transfer title; and (e) clause 7(6) of sch 2 which provides that: If agreement is reached not to transfer areas of the CNI forests land, or iwi do not request a transfer in writing, then the company will retain title, subject to the vested beneficial entitlement of iwi in accordance with the final allocation agreement and the deed of trust. 26 [81] In the event that title to some or all of the land does remain with the Company, cl 25 of the TD&SA deals with the disposition of the land upon the winding up of the Trust at the expiry of the 78 year Trust period. Then, the trustee Company may: Emphasis added. Although on one interpretation, the words If the Collective's Allocation Agreement has determined ultimate ownership of part or all of [the land] suggests that allocation need not determine ownership I consider that this part of the clause needs to be read conjunctively with what follows. In other words, the clause contemplates only that ownership of the land might be determined without agreement that the land should be distributed, not that ownership might not be determined at all. Emphasis added. Emphasis added. As noted earlier, agreement includes the outcome of the adjudication process.