IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CIV [2016] NZHC NGĀTI WAHIAO Respondent

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CIV [2016] NZHC 1486 BETWEEN AND NGĀTI HURUNGATERANGI, NGĀTI TAEOTU ME NGĀTI TE KAHU O NGĀTI WHAKAUE Appellants NGĀTI WAHIAO Respondent Hearing: 9 to 11 February 2016 Appearances: David Goddard QC, John Kahukiwa and Bree Huntley for the Appellants Jack Hodder QC, Felix Geiringer and Cerridwen Bulow for the Respondent Judgment: 1 July 2016 JUDGMENT OF MOORE J This judgment was delivered by me on 1 July 2016 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/ Deputy Registrar Date: NGĀTI HURUNGATERANGI & ORS v NGĀTI WAHIAO [2016] NZHC 1486 [1 July 2016]

2 Contents Paragraph Number Introduction... [1] The Lands... [8] The parties... [11] Ngāti Whakaue Interest... [13] Ngāti Wahiao Interest... [15] History and background The Lands and their interests... [20] Return of Lands by the Crown... [25] Joint Trust... [26] Vesting Act... [27] The Deed... [29] Beneficial entitlement / Ownership... [30] Second Schedule The Beneficiary Entitlement Determination Procedure... [32] Determining beneficial ownership... [36] Native Land Court decisions... [40] The Award... [48] Did the Panel err in law in its approach to s 348 of the TTWMA?... [55] Appellant s submissions... [56] The legislation... [63] Issue estoppel... [76] Implied repeal by the Vesting Act... [79] Did the Panel err in law in failing to make findings (supported by reasons) as to who the beneficial owners of the Lands were pre-1893, and failing to determine the parties claims having regard to those findings? Did it allocate the lands according to broad conceptions of fairness instead?... [85] Appellants submissions... [86] Did the panel correctly understand its task in accordance with the Deed?... [95] Did the Panel make the necessary findings on the evidence and provide sufficient reasons in support of its conclusions? The law... [107] Analysis... [112]

3 Did the Panel err in law in finding that Crown purchases of individualised interests in the Lands after 1893 resulted in loss of the mana whenua of the hapū in respect of those Lands?... [138] Appellant s submissions... [140] Did the Panel find that Ngāti Whakaue, through its sales to the Crown, lost its mana whenua in respect of the Lands?... [151] Was there an error of law?... [163] Was the Panel s approach inconsistent with the definition of mana whenua in the Deed?... [180] Did the Panel err in law by treating Crown purchases of individualised interests in land post-1893 as a relevant consideration in determining the dispute before it?... [184] Appellant s submissions... [186] Analysis (a) Irrelevant consideration... [191] (b) Breach of natural justice... [194] Should the Award be set aside under art 34, sch 1 of the Arbitration Act 1996?... [210] Result... [214] Costs... [216] Final Remarks... [218] Appendix 1 Appendix 2

4 Introduction [1] In 2008 the Crown agreed to return to Māori the ancestral lands known as Whakarewarewa and Arikikapakapa after some 115 years in Crown ownership. The difficulty, however, was that there were competing claims to these lands and differences between hapū as to whom the land should be returned. Ngāti Whakaue 1 and Ngāti Wahiao 2 each claimed exclusive beneficial ownership. [2] The Whakarewarewa Joint Trust ( the Joint Trust ) was established by deed ( the Deed ) to hold the land until the beneficial entitlement to it was determined by agreement, mediation or adjudication. 3 [3] Once it became clear that agreement could not be reached and little or no purpose would be served by mediation the arbitral process provided for under the Deed was invoked. An arbitral panel ( the Panel ) was appointed consisting of Bill Wilson QC 4, the late Erima Henare 5 and Kevin Prime For the purposes of this judgment Ngāti Whakaue includes the hapū known as Ngāti Hurungaterangi, Ngāti Taeotu me Ngāti Te Kahu o Ngāti Whakaue. Ngāti Wahiao includes those hapū comprising Tūhourangi Ngāti Wahiao as defined in the Affiliate Te Arawa Iwi/Hapū Deed of Settlement. By the Whakarewarewa and Roto-a-Tamaheke Vesting Act Mr Wilson is a former judge of the High Court, Court of Appeal and Supreme Court. He is familiar with all aspects of New Zealand law and also served as a member of the Waitangi Tribunal between 1985 and The late Mr Henare was a pre-eminent and widely respected leader of Ngāti Hine and Ngāpuhi. Prior to his death in May last year he was an acknowledged authority on the history, whakapapa, reo and tikanga of Te Tai Tokerau. His record of iwi and public leadership was extensive. Among other roles, Mr Henare was the Chair of the Maori Language Commission, a board member of the Waitangi National Trust and an advisor to King Tuheitia Paki. He had also occupied senior roles in the Department of Māori Affairs, the Iwi Transition Agency and the Ministry of Foreign Affairs. Mr Prime. MBE, ONZM, is well recognised for his contributions to conservation, Māori and Ngāti Hine in particular. He is a foundation member of the Ngā Whenua Rāhui Fund established to protect Māori land. He has also served as a Commissioner for the Environment Court since 2003 and is formerly Chair and Kaumatua for Foundation North, a community trust with an endowment of over a billion dollars dedicated to supporting not-for-profit groups in the Auckland and Northland regions. He was made an Officer of the New Zealand Order of Merit in the Queen s 90 th Birthday Honours list of 2016 for his services to conservation and Māori.

5 [4] The Panel held hearings over 13 sitting days between November 2012 and May In a decision delivered one month after the last sitting, the Panel determined the land should be apportioned equally between Ngāti Whakaue and Ngāti Wahiao. The practical effect of the decision was left to the parties to attempt to agree including the future role of the Joint Trust, if any. In the event the parties were unable to agree the Panel reserved the right to all parties to apply for any further decisions or directions which might be required. [5] The Court of Appeal granted Ngāti Whakaue special leave to bring this appeal against the award ( the Award ) pursuant to the Arbitration Act In particular the Court granted leave to appeal on the following questions of law arising from the Award, namely: (a) Did the Panel err in: (i) Failing to make findings (supported by reasons) as to who the beneficial owners of the land at issue were pre-1893? (ii) Did the Panel err in failing to determine the parties claims to the lands having regard to those findings? (iii) Did the Panel err in allocating beneficial ownership of the lands according to broad conceptions of fairness, rather than identifying the persons entitled to beneficial ownership of the land? (b) Did the panel err in law in finding the Crown purchases of individualised interests in the lands after 1893 resulted in a loss of the hapū in respect of those lands? 7 8 The hearing consisted of four sittings 19 and 20 November 2012, 11 to 15 February 2013, 18 and 19 February 2013 and 6 to 9 May The transcript of the hearing runs to 1243 pages. Ngāti Hurungaterangi, Ngāti Taeotu me Ngāti Te Kahu o Ngāti Whakaue v Ngāti Wahiao [2014] NZCA 592.

6 (c) Did the Panel err in law by treating Crown purchases of individualised interests in land post-1893 as a relevant consideration in determining the dispute before it? (d) Did the Panel err in law in its approach to s 348 of the Te Ture Whenua Māori Act 1993 ( TTWMA )? [6] Ngāti Whakaue says the Panel erred in law in its construction of the Deed, in its interpretation and application of relevant legislation and in its identification and application of relevant principles of tikanga Māori, which it submits form part of the common law of New Zealand. It also says the effect of s 348 of the TTWMA is such that the correctness of certain 19 th century decisions of the Native Land Court ( the NLC ) determining ownership of the lands in issue ( the Lands ) prevented the Panel from reaching decisions inconsistent with those decisions. Furthermore, it seeks to set aside the Award on the grounds that, because the rules of natural justice were breached in connection with the making of the Award, the Award is in conflict with the public policy of New Zealand. It seeks orders allowing the appeal, setting aside the Award and directing the arbitration be conducted again before a fresh adjudication panel to determine the beneficial entitlement to the Lands. [7] Ngāti Wahiao submits the appeal should be dismissed. It says no such errors of law were made. More particularly, Ngāti Wahiao says the parties chose to have their disputed issues determined according to mana whenua and customary aspects of Māori land tenure, these being matters of fact and not statutory or judge-made laws. Ngāti Wahiao thus submits the Panel did not misunderstand its role under the Deed, was not constrained by s 348 of the TTWMA from determining the matters before it, and made conclusive evidence-based assessments and decisions in relation to those matters in its Award. Ngāti Wahiao submits that other than the question relating to s 348 of the TTWMA none of the other questions is a genuine question of law. Instead they are questions of evidence and fact (and evaluation) illegitimately dressed up as questions of law in an attempt to avoid the consequences of arbitral finality.

7 The Lands [8] The Lands are comprised of three reserves. These are the Te Roto-a- Tamaheke Reserve, the Whakarewarewa Thermal Springs Reserve and the Southern Arikikapakapa Reserve. A map depicting the whereabouts of the three reserves, their proximity to each other and other features of local prominence is attached to this judgment as Appendix 1. [9] As the Deed records, the area of the Te Roto-a-Tamaheke Reserve is approximately hectares. The Whakarewarewa Thermal Springs Reserve covers 45 hectares and the Southern Arikikapakapa Reserve is hectares. [10] Te Puia, the New Zealand Māori Arts and Crafts Institute, is located on the Southern Arikikapakapa Reserve and the Whakarewarewa Thermal Springs Reserve. It currently leases these lands from the Joint Trust. The lands on which Te Puia is located buttress the lower Whakarewarewa Valley where the Whakarewarewa Village, the thermal living village, is located. The parties [11] The Deed defines claimants as: (a) Ngāti Whakaue Interest; and (b) Tūhourangi Ngāti Wahiao Interest. [12] The following whakapapa table is reproduced from the Award. 9 It is helpful in explaining the links between Ngāti Whakaue and Ngāti Wahiao through the common ancestral line of Tūhourangi: Tūhourangi Taketakehikuroa Tutea Umukaria Uenukukopako Whakaue-Kaipapa Wahiao Hinemoa Tūtānekai Ngāti Wahiao Ngāti Whakaue 9 The Award at [13].

8 Ngāti Whakaue Interest [13] This is defined in the Deed in the following way: 10 (a) The three (3) hapū of Ngāti Hururangaterangi, Ngāti Taeotu and Ngāti Te Kahu o Ngāti Whakaue and more particularly those individuals who are descended from one or more of the listed persons by name and by hapū as set out in the decision of the Native Land Court in respect of Whakarewarewa Number 3 Block and dated 24 October 1893 at 28 ROT ; (b) Those individuals who are descended from one or more of the 295 listed owners by name and by hapū as set out in the decision of the Native Land Court in respect of the Pukeroa Oruawhata Block, of which the Arikikapakapa Block forms part, and dated 27 April 1882 as represented by the trustees of the Pukeroa Oruawhata Trust; [14] Before the Panel, Ngāti Whakaue submitted they should be recognised as the exclusive beneficial owners of Te Roto-A Tamaheke Reserve and Whakarewarewa Thermal Springs Reserve. In parallel, the Pukeroa Oruawhata Trust, which was separately represented, contended all of the interests in the Southern Arikikapakapa Reserve should be allocated to it. Given that the interests of Ngāti Whakaue and Pukeroa Oruawhata Trust coincide, the Trust s interests are represented in the present appeal by Ngāti Whakaue. Ngāti Wahiao Interest [15] As the Panel observed, the position with the Tūhourangi Ngāti Wahiao interest is not as straightforward. Three related groups appeared before the Panel to assert beneficial ownership of the Lands. Two definitions in the Deed 11 describe the Tūhourangi Ngāti Wahiao interest. These are: (i) Tūhourangi Ngāti Wahiao Interest means the individuals who comprise Tūhourangi Ngāti Wahiao as defined in the Affiliate Te Arawa Iwi/Hapū Deed of Settlement; (ii) Affiliate Te Arawa Iwi/Hapū Deed of Settlement means the Deed of Settlement of the historical Treaty of Waitangi claims of the Affiliate Clause 1.1. Clause 1.1.

9 Te Arawa Iwi/Hapū dated 11 June 2008, entered into between the Crown, Affiliate Te Arawa Iwi/Hapū and the trustees of the Te Pūmautanga o Te Arawa Trust. [16] The definition of those who comprise Tūhourangi Ngāti Wahiao, in the Deed of Settlement reads: 1.13 Tūhourangi Ngāti Wahiao: means the collective group comprised of: (a) (b) individuals descended from one or more Tūhourangi Ngāti Wahiao Ancestors; and individuals who are members of the subgroups referred to in paragraph (a); and means every individual referred to in paragraph ; and includes the following subgroups: (a) (b) Ngāti Apumoana, Ngāti Hinenihi, Ngāti Hinganoa, Ngāti Huarere, Ngāti Kahu Upoko, Ngāti Puta, Ngāti Taoi, Ngāti Te Apiti, Ngāti Tionga, Ngāti Tumatawera, Ngāti Tuohonoa and Ngāti Uruhina; and any iwi, hapū, whanau or group of individuals to the extent that that iwi, hapū, whanau or group of individuals is composed of individuals referred to in paragraph : [17] A Tūhourangi Ngāti Wahiao Ancestor is defined in cl 1.14 as: 1.14 an individual who: exercises Customary Rights by virtue of being descended of Tūhourangi; and exercises the Customary Rights predominantly in relation to Rotomahana Parekarangai 6 or Whakarewarewa 2 at any time after 6 February [18] As the Panel observed in the Award it was, perhaps, unsurprising given the breadth of this definition that three related groups appeared before the Panel to assert beneficial ownership of the Lands.

10 [19] The Panel concluded that only the three Ngāti Wahiao hapū were eligible to be final beneficiaries, a finding which is not in issue in this appeal. History and background The Lands and their interests [20] The Lands are located within larger tracts which were the subject of NLC determinations of ownership in the late 19 th century. Although discussed more fully later in this judgment, in summary the primary effect of these decisions was that the Lands were awarded predominantly to Ngāti Whakaue, indeed overwhelmingly so. [21] A significant consequence of the ascertainment of title by the NLC was that the ownership of the land was assimilated into English law concepts of ownership rather than recognising the notion of collective tenure by an iwi, hapū or whanau as a matter of tikanga or customary law. As a matter of tikanga, permanent alienation of land is not possible. Despite this, the NLC made specific findings by identifying individual members of the relevant hapū and allocating fractional interests to them in the various blocks of land which included the Lands which are the subject of the present proceedings. [22] The fractional interests could be acquired from those identified individuals holding the interests. In the Rotorua area, and elsewhere in New Zealand, the Crown adopted a deliberate policy of purchasing the individual interests and then seeking partition of the land. 12 As a result, and by degrees, the Crown gradually accumulated large blocks of fee simple land including that which is the subject of these proceedings. [23] The Waitangi Tribunal determined these acquisitions did not result from any decision on the part of the customary owners to collectively transfer the land to the Crown. 13 Instead, it was undertaken with the assistance of Crown agents, whose dealings with the fractional owners were described by the Panel as less than scrupulous. The Crown s process of acquiring these individual interests was Waitangi Tribunal, He Maunga Rongo Report on Central North Island Claims (Wai 1200, 2008) vol 2, at 560. At 569.

11 inconsistent with its obligations, with the Waitangi Tribunal determining that this process constituted a serious breach of the Treaty and undermined the collective desire of the hapū to retain the ownership and control of their ancestral lands 14. [24] As the Panel observed when discussing this issue, a striking feature of the evidence was the speed and the volume of sales by those Ngāti Whakaue who were awarded land interests as compared to the very low level of sales by Ngāti Wahiao. Indeed, within three months of the partition orders being made in 1893, 57 per cent of Ngāti Whakaue interest holders had agreed to sell in contrast to only three per cent of those from Ngāti Wahiao. Within eight years 95 per cent of Ngāti Whakaue had sold but only 11 per cent of Ngāti Wahiao. Furthermore, Ngāti Wahiao continued to live in the Whakarewarewa Valley and developed a substantial tourism business which provided the foundation for the establishment of the New Zealand Māori Arts and Crafts Institute in Return of Lands by the Crown [25] In recognition of these breaches discussions between the Crown and affected parties took place. These concluded in 2008 when the Crown agreed to return the three reserves which comprise the Lands, to Māori. However, there were differences over which hapū were the rightful customary owners of the Lands, to whom they should be returned and in what proportions (if any). Joint Trust [26] The solution, at least pending resolution of beneficial entitlement, was to create a vehicle which would hold the Lands on trust. On 29 August 2008 the Joint Trust was formed by Deed. In the background recitals it recorded: Ngāti Whakaue and Tūhourangi-Ngāti Wahiao have reached certain agreements between themselves, and between themselves and the Crown and the Trustees of the Te Pūmautanga o Te Arawa Trust all in relation to lands of the Whakarewarewa Thermal Valley and the New Zealand Māori Arts and Crafts Institute 14 At 620.

12 Vesting Act [27] The mechanism to effect the transfer of the Lands from the Crown to the Joint Trust was the Whakarewarewa and Roto-a-Tamaheke Vesting Act 2009 ( the Vesting Act ). The premable sets out the nature of these agreements and, in particular, the Crown s agreement to transfer its fee simple estate in the Lands with the provision that Ngāti Whakaue and Ngāti Wahiao establish a joint trust to hold the fee simple with the Deed setting out a procedure for determining the beneficial entitlement. [28] This provides a helpful summary of the context within which the Deed fits and the mechanisms provided for in determining the beneficial entitlement to the fee simple estate in the Lands. The relevant clauses are reproduced below: (1) The Whakarewarewa Valley Land and the Roto-a-Tamaheke Reserve are of significant cultural, traditional, historical, and spiritual importance to Ngāti Whakaue and Tūhourangi Ngāti Wahiao: (7) On 8 April 2008, in order to assist its objective of building healthy relationships with Ngāti Whakaue and Tūhourangi Ngāti Wahiao, the Crown agreed (in principle) to transfer the fee simple estate in the Southern Arikikapakapa Reserve to Ngāti Whakaue and Tūhourangi Ngāti Wahiao, subject to certain conditions. The transfer was not to be consideration or redress of any nature for the settlement of any claim against the Crown that was, or was founded on, a right arising from the Treaty of Waitangi, the principles of the Treaty, or otherwise: (9) Ngāti Whakaue and Tūhourangi Ngāti Wahiao agreed to establish a joint trust to hold the fee simple estate in the Whakarewarewa Valley Land and the Roto-a-Tamaheke Reserve: (10) The deed establishing the joint trust includes a procedure for determining the beneficial entitlement to the fee simple estate in the Whakarewarewa Valley Land and the Roto-a-Tamaheke Reserve and for the possible transfer of some or all of those lands following the determination. Under the vesting deed dated 5 August 2008 (see recital (12)), the Crown acknowledged that Tūhourangi, Ngāti Wahiao (including Ngāti Tukiterangi, Ngāti Huarere and Ngāti Hinganoa) and Ngāti Hurungaterangi, Ngāti Taeotu me Ngāti Te Kahu o Ngāti Whakaue and the Koromatua hapū of Ngāti Whakaue, including the collective of the beneficial owners of Pukeroa Oruawhata block, all have the right to have their claims to the beneficial ownership of the Whakarewarewa Valley Land and the Roto-a-Tamaheke Reserve independently determined through that procedure:

13 (12) A deed to introduce the vesting legislation, dated 5 August 2008, was signed by the Minister in Charge of Treaty of Waitangi Negotiations, the Minister of Māori Affairs, the Minister of Tourism, representatives of Ngāti Whakaue and Tūhourangi Ngāti Wahiao, and the Te Pūmautanga trustees (on behalf of the Affiliate Te Arawa Iwi/Hapū): The Deed [29] For the purposes of the present proceedings the primary relevance of the Deed is its establishment of the Beneficial Entitlement Determination Procedure. This is set out in the Second Schedule to the Deed. It is this process which the Deed intended to be used to determine the beneficial ownership of the Lands as between Ngāti Whakaue and Ngāti Wahiao including in what proportions as between them, if any. Beneficial entitlement / Ownership [30] Under the Vesting Act the legal title to the Lands passed to the Joint Trust. Listed as amongst the principal purposes of the Joint Trust the Deed requires the Joint Trust to comply with the result of the Beneficiary Entitlement Determination Procedure and hold the Lands as required by any determination made in accordance with the provisions of the Second Schedule to the Deed. 15 [31] The determination under the Beneficial Entitlement Determination Procedure is explained in various definitions in cl 1.1 of the Deed which also relevantly defines Final Beneficiary as follows: Final Beneficiary means: (a) the hapū and individuals who are determined to be the beneficial owners of the titles to the Lands in whatever proportions (if any) as a consequence of either: (ii) the findings of the Beneficial Entitlement Determination Procedure; and 15 Clause 3.1(e).

14 Second Schedule The Beneficiary Entitlement Determination Procedure [32] As already noted, the Second Schedule to the Deed provides for the Beneficiary Entitlement Determination Procedure. This involves a four step process: (a) Step 1: The procedure is initiated by the giving of a Determination Notice by one or more hapū or 30 or more individuals of a claimant. Step 1 requires the Determination Notice to state the names of the individuals and hapū on whose behalf the Determination Notice is given, the persons with authority to represent those on whose behalf the Determination Notice is given and the basis for that authority, the area or areas of Lands over which they claim exclusive beneficial ownership and the evidential basis for such claims. 16 (b) Step 2: The claimants will embark on a kanohi ki te kanohi [face-to-face] discussion with each other with a view to reaching agreement as to the ownership of the Lands. (c) Step 3: The claimants may agree to refer any matter relating to the Procedure to mediation in an attempt to reach agreement. (d) Step 4: Failing agreement the final step is adjudication by a panel of three independent members appointed unanimously by the trustees. [33] The provisions governing the process of adjudication are set out in cls 14 to 16 of the Second Schedule. [34] Of these, and of central importance to the present proceedings, are the principles which guide the Panel in its adjudication. These are set out in cl 15, and in particular cl 15.4 which provides as follows: 15.4 In hearing the claims the Adjudication Panel will have regard to mana whenua and customary aspects of land tenure pre-native Land Court in determining the matter of ownership of the Lands. By way of guidance the Adjudication Panel may be assisted by the following: 16 Clause 1.1.

15 (a) (b) mana whenua is the mana that Iwi/hapū/individuals traditionally held and exercised over the land, determined according to tikanga including, but not limited to, such factors as: takawhenua 17 ; demonstration of ahi kaa roa 18 ; ahi tahutahu 19 or ahi mataotao 20 ; evidence of mana whenua may be derived from a range of sources of knowledge including: oral korero, including whakapapa, waiata and tribal history; and written sources, Native Land Court evidence and decisions, research, reports and other records; [35] It was common ground at the hearing in this Court that these provisions are central in ascertaining the role and approach of the Panel. Indeed, Mr Goddard QC, for Ngāti Whakaue, described cl 15.4 as representing the four corners of the process. Determining beneficial ownership [36] The Panel s task under the Deed was to determine the competing claims to beneficial ownership of the Lands. [37] It is plain that ownership in the context and meaning of the Deed does not mean formal legal title to the Lands. The legal title was vested in the Joint Trust by the Crown pending transfer in accordance with the Panel s determination on the allocation of beneficial ownership. [38] While the term beneficial is not defined in the Deed it must carry the ordinary legal connotation of entitlement to the use and benefit of the relevant property. [39] Entitlement is determined by reference to the guiding principles contained in cl 15, particularly cl This is discussed more fully later in this judgment The grounds for the claim. Long burning or continuous fires of occupation. Intermittent occupation. Fires of occupation which have grown cold or gone out for a long period.

16 Native Land Court decisions [40] Clause 15.4(b) observes that the Panel, by way of guidance, may be assisted by various considerations including NLC evidence and decisions. [41] The principal relevance of the NLC decisions, in contrast to the evidence before it, lies in Ngāti Whakaue s claim that the Panel erred in law in its approach to s 348 of the TTWMA. Ngāti Whakaue says that s 348 had the effect of preventing the Panel from reassessing the correctness of Native Land Court decisions which relate to the Lands. Ngāti Whakaue s reliance on s 348 is unsurprising given that between 1881 and 1893 Ngāti Whakaue was overwhelmingly successful in the various proceedings before the NLC. Before the Panel, Ngāti Wahiao s case was that reliance on the decisions of the NLC was unsafe; the NLC did not provide a mechanism for the delivery of justice but rather it was a vehicle for facilitating the alienation of Māori land. The Court was not independent and Māori customs were not understood. Mr Goddard generally accepted the criticisms of the Court but questioned whether, in relation to the Lands in question in the present proceedings, the criticisms are, in fact, valid. A brief discussion of the NLC cases is necessary to set the context. [42] In 1881 the NLC enquired into the Pukeroa Oruawhata Block, of which the Southern Arikikapakapa Reserve forms a part. Ngāti Whakaue claimed an interest in the entire block. Following a lengthy hearing the NLC awarded almost all of the block to Ngāti Whakaue. In doing so, the NLC found that neither Tūhourangi nor Ngāti Wahiao had any occupation of the block and awarded them no interest in the land. Before the Panel, Ngāti Wahiao described this decision as tainted. Apparently, prior to the hearing, Chief Judge Fenton of the NLC agreed with Ngāti Whakaue that the Crown would establish the township of Rotorua on that block. Thus it was submitted a determination in favour of Ngāti Wahiao of any land required for the township would have been incompatible with that agreement. Other criticisms, of which there were several, included a claim the sitting Judges communicated with the Chief Judge between the end of the hearing and before the decision was delivered.

17 [43] In 1883 the NLC enquired into title to a block known as the Rotorua Patetere Paeroa Block which included Whakarewarewa. Again Ngāti Whakaue claimed the entire block. The NLC decided the question of ownership mainly upon occupation. Ngāti Whakaue s claim was predicated on four take (topic, subject, matter, issue, concern) namely, ancestry (take tupuna); mana (meaning conquest and power of making peace ); occupation (take noho tuturu); and the power to retain possession of the lands (take toa). [44] The NLC awarded the land to the members of the hapū who could prove substantial occupation. The Court found the land at Whakarewarewa did not appear to have been continuously occupied by any tribe or hapū but it had been occupied occasionally by hapū of Wahiao and at other times by certain hapū of Whakaue. The NLC awarded the land to three hapū of Ngāti Whakaue (namely Hurangaterangi, Taeotu and Te Kahu) and three hapū of Ngāti Wahiao (namely Huarere, Tukiterangi and Hinganoa), with no division expressed between them. [45] Ngāti Whakaue appeared to reject this finding. It requested a rehearing. Coincidentally Ngāti Wahiao requested the NLC to partition the land at Whakarewarewa. In 1889 the NLC heard both proceedings; Ngāti Whakaue s rehearing and Ngāti Wahiao s application to partition the land. The NLC determined that Ngāti Whakaue was entitled to a larger share of the ownership in the land than Ngāti Wahiao. This decision was justified on the grounds the surrounding blocks had been awarded to Ngāti Whakaue exclusively and the NLC found their occupancy of the disputed lands was greater than Ngāti Wahiao s; this despite the NLC applying the same principles it adopted in its earlier decision. Ngāti Whakaue was awarded 967 acres with Ngāti Wahiao being awarded only 176 acres. Both parties were dissatisfied with the apportionment and sought a rehearing. [46] The 1893 rehearing resulted in Ngāti Wahiao s interests being further reduced. Ngāti Whakaue was awarded 871 acres (Te Whakarewarewa No. 1 Block) while Ngāti Wahiao received only 57 acres (Te Whakarewarewa No. 2 Block). The remaining 215 acres (Te Whakarewarewa No. 3 Block), which comprised the Te Roto-a-Tamaheke Reserve and the Whakarewarewa Thermal Springs Reserve,

18 were awarded to Ngāti Whakaue in a 5/6 th interest and to Ngāti Wahiao in a 1/6 th interest. In total Ngāti Whakaue was allocated a 92 per cent interest in the block. [47] It was these 1893 allocations which defined the fractional interests which the Crown then set about acquiring in what have been referred to as the post-1893 sales. The Award [48] Although the Panel s reasoning and conclusions are examined in some detail below, it is useful to provide a summary of the Award at this initial stage. The material before the Panel was very substantial. The Award does little to reflect its sheer volume or the quality of the evidence and the scholarship of those witnesses who appeared. [49] After examining the history of the Lands and the parties relationships to them, the Panel turned to the Deed itself. It considered the interpretation of cl 15.4 and came to the view that the use of the phrase will have regard to mana whenua and customary aspects of land tenure pre-native Land Court did not prevent it from hearing evidence about subsequent events. The requirement it was to have regard to the specified matters did not prevent it from considering other evidence it considered relevant. The Panel stated that it saw its objective as being the determination of which hapū or individuals should be recognised as the owners of the three reserves and, if more than one, in what proportions. [50] It s conclusions in relation to this question were shortly stated. It acknowledged that the correctness of the NLC decisions was very much in issue. It recorded it placed considerable weight on the evidence presented to the NLC by witnesses whose knowledge of the matters to which they were deposing was much more immediate than could be expected of any witness giving evidence some 130 years later. It noted that this evidence provided strong support for Ngāti Whakaue s claim of occupation although it was not specific as to area. [51] The Panel contrasted that approach to the weight it accorded to the decisions of the NLC themselves. In doing so it listed several reasons as to why it did not

19 consider this to be persuasive evidence. First, it noted that there was considerable substance to Ngāti Wahiao s submission that the conclusions of the NLC should be accorded less weight than would be accorded Court decisions of today. Secondly, the Panel observed that as it read s 348 of the TTWMA it was not possible for orders of the NLC to be called into question in the course of the arbitration proceedings on any grounds whatsoever. It considered that s 348 was at least arguably applicable and stated that it would not want to transgress the section by reassessing the correctness of the decisions. Thirdly, it considered that the sales which occurred after the NLC s 1893 decision made it necessary to consider the question of mana whenua afresh. [52] It stated that the consequence of the sale of land by a willing seller was that mana whenua moved from the seller to the buyer. Referring to the evidence of the disproportionate volume and speed of sales by Ngāti Whakaue to the Crown as compared to the relatively modest volume of sales by Ngāti Wahiao, the Panel found that the disparity was explained, at least in part, by Whakarewarewa being Ngāti Wahiao s hapū base while Ngāti Whakaue s hapū was primarily based at Ohinemutu. It concluded the evidence of sales by Ngāti Whakaue and the lack of sales by Ngāti Wahiao provided strong support for Ngāti Wahiao s claim to mana whenua. [53] From this the Panel found that the three Ngāti Wahiao hapū and the Ngāti Whakaue hapū had both established an interest in Te Roto-a-Tamaheke Reserve and the Whakarewarewa Thermal Springs Reserve. It also determined that the three Ngāti Wahiao hapū and the Pukeroa Oruawhata Trust had both established an ownership interest in the Southern Arikikapakapa Reserve. [54] The Panel held that each party should share jointly and equally in the ownership of the Lands but determined the parties should be given the opportunity to confer in an attempt to agree on how the decision should be given practical effect. Did the Panel err in law in its approach to s 348 of the TTWMA? [55] I agree with Mr Hodder QC, for Ngāti Wahiao, when he says that this Court s findings regarding s 348 of the TTWMA will inform the discussion of the other

20 questions to follow. I thus consider it appropriate that this question be addressed first. Appellant s submissions [56] Mr Goddard submits the Panel effectively side-stepped s 348 of the TTWMA, apparently reasoning that by refraining from expressing a view on the ownership of the land pre-1893, it could avoid reassessing the correctness of the NLC s decisions. Mr Goddard submits that such an approach is a misapprehension of the nature of the s 348 prohibition; a decision s correctness is called into question as much by disregarding it as by challenging its correctness. Given the starkly contrasting approaches adopted by the parties, Mr Goddard submits it was necessary for the Panel to decide whether s 348 applied. He submits that if it is accepted s 348 applies, the NLC decisions must be treated as having finally resolved the ownership issues before the Court and the Court s decision as to the owners of relevant blocks as at 1893 must be treated as correct for all purposes. [57] He submits it was therefore necessary for the Panel to determine whether the approach contended for by Ngāti Whakaue was to be preferred over that promoted by Ngāti Wahiao. [58] In support of the proposition that s 348 applies, Mr Goddard submits that the answer is plain on its face. It prevents the calling into question of any order of the NLC on any grounds whatsoever. 21 [59] He submits s 348 can be seen as an extension of the doctrine of issue estoppel. The NLC was a Court of record and its decisions are res judicata and thus give rise to issue estoppels. The grounds on which such decisions may be re-opened are limited. They may be re-opened only before that Court and not in proceedings in the general Courts. 22 The Land Titles Protection Act 1908 (and its precursor, the Land Titles Protection Act 1902) prevented the re-opening, on any grounds, of This was re-iterated by Tompkins J in New Zealand Guardian Trust Co Limited v Manukau HC Auckland CP 331/95, 24 July See, for example, Attorney-General v Tipae (1887) 6 NZLR 157 (CA) at 170 per Gillies J, 172 per Williams J, and 174 per Ward J; Timu Kerehi v Duff (1902) 21 NZLR 416 (CA) at per Williams J, per Edwards J and percooper J.

21 certain NLC decisions. Mr Goddard submits s 348 preserves the preclusive effect of those statutes. [60] In particular, he submits that s 348 applies to the 1881 decision concerning the Pukeroa Oruawhata Block which includes the Southern Arikikapakapa Reserve. As a matter of issue estoppel, and as a result of the operation of s 348, he submits the Panel was required to proceed on the basis that Ngāti Whakaue were the owners of this land. [61] While accepting s 348 does not apply to the 1893 decision because the Land Titles Protection Act 1908 did not apply to that decision, he submits the underlying principle of issue estoppel nonetheless applies. Ngāti Wahiao is estopped from disputing the pre-1893 ownership of the Lands as determined by the NLC. Thus the Panel was required to proceed on the basis that the ownership of the Lands pre-1893 was determined by the NLC. [62] Anticipating Ngāti Wahiao s alternative argument that the Vesting Act impliedly repeals s 348, Mr Goddard submits that the specific parties understandings about the purpose of the adjudicative procedure provided for in the Vesting Act and the nature of the arguments anticipated at adjudication, cannot form the basis of an implied repeal. Furthermore, he notes the Deed makes no reference to the application of s 348. The purpose of the Deed was to refrain from pre-empting any of the arguments the parties wished to advance in relation to the ownership of the Lands. It did not proceed on the basis that the NLC decisions determined ownership of the Lands. Neither did it proceed on the basis that this argument of Ngāti Whakaue s was wrong and could not be pursued. Instead, it left it open to Ngāti Whakaue to pursue this argument in arbitration and for Ngāti Wahiao to present its arguments that such an approach was wrong. The legislation [63] Section 348 of the TTWMA provides as follows: 348 Savings of effect of Land Titles Protection Act 1908

22 Subject to the provisions of sections 44 to 49, no order of the Maori Land Court, Crown grant, or other instrument of title that, at the commencement of the Native Land Act 1909, was within the protection of the Land Titles Protection Act 1908 shall, on any grounds whatever, be called in question in any court or in any proceedings. [64] The long title of the Land Titles Protection Act 1908 was as follows: AN ACT to consolidate certain Enactments of the General Assembly relating to the Protection of Land Titles from Frivolous Attacks in certain Cases. [65] The preamble to the 1908 Act develops this theme: WHEREAS several actions by Natives calling in question, after a lapse of at least thirty years, certain orders of the Native Land Court made under the provisions of The Native Lands Act, 1865, and the Crown grants and other instruments of title issued in pursuance thereof, have within recent years been taken in the Supreme Court: And whereas the said actions have been dismissed and the parties have been cast in heavy costs and expenses: And whereas, through the death or retirement of Judges of the Native Land Court and other responsible officers of the public service who could give official evidence, the defence of similar actions might be a matter of very great difficulty, if not an impossibility: And whereas considerable alarm has been caused amongst the European landholders at such attacks upon their titles, and it is expedient that reasonable protection should be afforded to the holders of such titles: [66] In introducing the bill on the 1902 legislation, which the 1908 Act consolidated, the Native Minister observed it was one of the most important measures the Government had submitted to Parliament. He explained the purpose and need of the legislation in the following way: 23 The necessity for the measure is in consequence of certain actions taken by Natives bringing into question, after a lapse of at least thirty years, certain orders of the Native Land Court made under the provision of The Native Lands Act, 1865, and which were ratified by Crown grants and other instruments issued in pursuance thereof. Although these actions were dismissed by the Appeal Court, still considerable expense has been entailed upon all connected with the suits. The Natives themselves have been cast in heavy costs as plaintiffs, and I venture to say that the defendants also have had to suffer in no small degree, because they have had to employ the best legal talent and bring witnesses from great distances in defence of their titles. Much alarm has been caused through the Colony among land holders because of the attacks made upon their titles. They feel the absolute insecurity of their tenure, and are 23 (17 September 1902) 122 NZPD

23 suffering in manifold ways in consequence. We know that generally these cases have not been brought on with the idea of ultimate success, but more for the purpose of harassing European holders of title in the Colony, and with the hope that some compromise may follow as the outcome of the position in which the plaintiffs might be paid to retire. Now, the question arises whether, as a matter of public policy, the country should allow this state of things to continue whether they should allow the Natives to be exploited by professional gentlemen for no other reason than the particular kind of business it might create in our law Courts. [67] Section 2 of the Land Titles Protection Act 1908 operated as a bar to any proceedings challenging the processes and determinations of the NLC. It is set out below: 2. (1.) In the case of Native land or land acquired from Natives, the validity of any order of the Native Land Court, Crown grant, or other instrument of title purporting to have been issued under the authority of law which has subsisted for not less than ten years prior to the third day of October, one thousand nine hundred and two (being the date of the coming into operation of "The Land Titles Protection Act, 1902"), shall not be called in question in any Court, or be the subject of any order of the Chief Judge of the Native Land Court under section thirty-nine of "The Native Land Court Act, 1894," unless with the consent of the Governor in Council first had and obtained; and in the absence of such consent this Act shall be an absolute bar to the initiation of any proceedings in any Court calling in question the validity of any such order, Crown grant, or instrument of title, or the jurisdiction of the Native Land Court to make any such order, or the power of the Governor to make and issue any such Crown grant. (2.) The Governor in Council may, after due inquiry in such manner as he thinks fit, give such consent as aforesaid, with or without conditions as to security for costs, if he is satisfied that a prima facie case has been established, and that it would be inexpedient to dispose of it by remedial legislation or any other procedure which would obviate litigation. (3.) No such consent shall take effect until after the expiration of fourteen days from the date of publication thereof in the Gazette and Kahiti. [68] I agree with Mr Hodder that a plain reading of this provision, viewed in the context of and against the background of its purpose, makes it clear that it is directed towards the protection of legal titles to land from delayed challenges in litigation. [69] This is also apparent from various cases which have discussed the provision, usually in the context of indefeasibility and s 62 of the Land Transfer Act These authorities have all referred to s 348 in the context of considering the rights of

24 a registered proprietor to enforce their legal title, most recently in a decision of this Court in Queenstown-Lakes District Council v McManus. 24 [70] Legal title was not in issue in the proceedings before the Panel. Neither the Deed nor the Award is concerned with legal titles. The Panel s role was not to replicate the exercise which the NLC had undertaken 130 years earlier which was why, no doubt, the Panel stated it did not place weight on the decisions of the NLC to the extent that it did in relation to the evidence presented to that Court for the reasons the Panel went on to elaborate. 25 The Panel was not required to consider whether legal title to the Land was correctly determined by the NLC or how it subsequently came to be dealt with. Rather, its task was to determine beneficial ownership of the Lands having regard to mana whenua and customary aspects of land tenure pre-native Land Court 26. That being the case, s 348 should not have and, it appears, did not have any bearing on the Panel s final conclusions. [71] I agree with Mr Hodder that s 348 was not disregarded by the Panel. Neither could it have been. It featured conspicuously throughout the hearing from the point the determination notice was issued. It featured in the opening and closing submissions made to the Panel and it was the first issue listed in Ngāti Whakaue s application for leave to appeal to this Court. On this point the Panel stated: 27 as we read s 348 of Te Ture Whenua Maori Act 1993 it is not possible for the orders of the Court to be called into question in these proceedings on any grounds whatever. Although the legislative intention may or may not have been to cover situations such as the present, the section is at least arguably applicable and we would not want to transgress it by reassessing the correctness of the decisions. [72] While I accept that the Panel did not expressly resolve the applicability of s 348 to the issues confronting it, it plainly did not believe that s 348 applied in the context of determining beneficial ownership having regard to mana whenua and customary aspects of land tenure. In this regard, I consider that the reference to Queenstown-Lakes District Council v McManus HC Invercargill CIV , 22 May 2009 at [24] to [26] per Osborne AJ; see too NZ Guardian Trust Co Ltd v Manukau HC Auckland CP331/95, 24 July 1996 per Tompkins J; Re Riddifold (1997) 11 Takitimu Māori Appellate Court Minute Book 170. The Award at [64]. Clause The Award at [64].

25 correctness must have been a reference to the correctness of the NLC s decisions as to legal title rather than beneficial ownership. [73] Had the Panel considered s 348 did apply where beneficial ownership in accordance with mana whenua and customary aspects of land tenure was being determined, it could not have reached the decision it did. Had it determined s 348 applied then all the Panel would have been required to do was to make findings of beneficial ownership along the same lines as the 19 th century decisions of the NLC. Such an approach would have resulted in an even more abbreviated Award. Instead, the exercise undertaken was a good deal more complex. It is also apparent from the plain wording of the Vesting Act and the Deed that more was required. [74] Furthermore, that by way of guidance the Panel was required to consider mana whenua and evidence of mana whenua drawn from, amongst other sources, NLC evidence and decisions, necessarily runs contrary to the submission the Panel was bound by s 348. [75] It follows I do not accept the Panel erred in this respect. Issue estoppel [76] Ngāti Whakaue does not succeed under this head of challenge either. [77] I agree with Mr Hodder that the reference in s 348 to the comprehensive prohibition on calling into question in any Court or in any proceedings on any grounds whatsoever must mean challenging in litigation the legal effect of a NLC order and the validity of the legal effect of such an order. Not only is this interpretation consistent with the text and purpose of the 1908 Act and s 348 but it is also consistent with the way s 348 has been treated in the subsequent case law referred to earlier. Logically, an earlier decision of a Court as to legal title cannot prevent a later Court from considering beneficial ownership in accordance with tikanga in relation to the same land.

26 [78] Consistent with my previous finding, I agree that the parties cannot be estopped from choosing to have their dispute determined by arbitration in accordance with the terms of the Deed rather than what would be, in effect, a mechanical application of the decisions of the NLC. To do so would be to render otiose the mechanisms for determination under the Deed. Implied repeal by the Vesting Act [79] In the alternative, Mr Hodder submits the Vesting Act must be taken to have implicitly repealed (or amended) s 348. I agree. [80] Again, this question focuses on the role of the Panel. [81] Recital (10) of the Vesting Act s preamble states that the Deed establishing the Joint Trust includes a procedure for determining the beneficial entitlement to the fee simple estate of the Lands and that the parties: all have the right to have their claims to beneficial ownership of the Whakarewarewa Valley Land and the Roto-a-Tamaheke Reserve independently determined through that procedure: [82] I agree with Mr Hodder that it is not credible to attribute to the legislature, when enacting the facilitative Vesting Act, an intention that the competing claims of beneficial entitlement to the Lands will be determined by the NLC s 19 th century decisions rather than independently under the procedure prescribed under the Deed. As noted earlier, if that was Parliament s intention in passing the Vesting Act, the determination procedures set out in the Second Schedule to the Deed would be made redundant. The Vesting Act would simply have provided for the disregard of post-1893 sales by those listed in the 1893 decision and provided for the identification of their 21 st century successors. Plainly that cannot have been the intention of the legislature. Indeed, the very opposite intention can be inferred when the contents of the statutory and related instruments are considered. [83] Furthermore, this conclusion is consistent with the principles of implied repeal; that is if two statutory provisions are totally inconsistent with each other so

27 that they cannot stand together, the latter in time impliedly repeals or amends the earlier so far as is necessary to remove the inconsistency between them. 28 [84] I am satisfied that to the extent the TTWMA is inconsistent with the Vesting Act the latter must prevail to the extent its purpose is to be given effect. Did the Panel err in law in failing to make findings (supported by reasons) as to who the beneficial owners of the Lands were pre-1893, and failing to determine the parties claims having regard to those findings? Did it allocate the lands according to broad conceptions of fairness instead? [85] In granting Ngāti Whakaue special leave to bring the present appeal, the Court of Appeal described the first question of law in the following terms: 29 1 Did the panel err in law in: (i) (ii) (iii) failing to make findings (supported by reasons) as to who the beneficial owners of the lands at issue were pre-1893? failing to determine the parties claims to the lands having regard to those findings? allocating beneficial ownership of the lands according to broad conceptions of fairness, rather than identifying the persons entitled to beneficial ownership of the lands? Appellants submissions [86] In his written submissions, Mr Goddard approaches this question on a slightly different footing. He refers to the decision of Mustill J in Finelvet AG v Vinava Shipping Co Ltd [The Chrysalis], in which the arbitral process was divided into three steps: 30 (a) First, the arbitrator ascertains the facts, including the making of findings on any facts which are in dispute; JF Burrows and RI Carter Burrows and Carter Statutory Law in New Zealand (5 th ed, Lexis Nexis, Wellington, 2015) at I am satisfied that this is such a case; see too O Jones Bennion on Statutory Interpretation (6 th ed, United Kingdom 2015) at Ngati Hurungaterangi v Ngati Wahiao, above n 8, at [B]. Finelvet AG v Vinava Shipping Co Ltd [The Chrysalis] [1983] 2 All ER 658 at 663.

28 (b) Secondly, the arbitrator ascertains the law, which comprises not only the identification of all material rules of statute and common law, but also the identification and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached; (c) Thirdly, in light of the facts and the law so ascertained, the arbitrator reaches his decision. [87] Mr Goddard submits that the primary challenge in this appeal is to the second stage of the arbitral process described by Mustill J being the ascertainment of the applicable law (including statute, common law and tikanga), the identification and interpretation of the principles under the Deed and the identification of those facts which the Panel was required to take into account in reaching its decision. [88] Mr Goddard relies on the following observations of Mustill J on the question of identifying errors of law in an arbitral award: 31 In some cases an error of law can be demonstrated by studying the way in which the arbitrator has stated the law in his reasons. It is, however, also possible to infer an error of law in those cases where a correct application of the law to the facts found would lead inevitably to one answer, whereas the arbitrator has arrived at another; and this can be so even if the arbitrator has stated the law in his reasons in a manner which appears to be correct: for the Court is then driven to assume that he did not properly understand the principles which he had stated. [89] Mr Goddard argues that all three sub-parts of the first question of law are essentially concerned with whether the Panel erred by misunderstanding the task entrusted to it in the sense that it misdirected itself in law or asked itself the wrong question. He submits the Panel, by concluding both parties should share jointly and equally in the ownership of the Lands, wrongly made its decision on the basis of broad conceptions of justice or fairness. By contrast, he maintains the terms of the Deed make it clear that the real purpose of the arbitration was to resolve the longstanding dispute as to the identity of the beneficial owners of the Lands prior to 1893 having regard to mana whenua and customary aspects of land tenure. Mr Goddard 31 At 663.

29 submits that the Panel deliberately failed to reach a conclusion on this basis so as to avoid calling into question the findings made by the NLC. [90] In support of his submission that the Panel s task was to identify the beneficial owners of the Lands rather than to allocate the beneficial ownership of them, Mr Goddard points to a number of clauses in the Deed which he says use the language of pre-existing ownership: (a) Clause 1.1 this clause contains the definition of Final Beneficiary and refers to the hapu and the individuals who are determined to be the beneficial owners of the titles to the Lands (b) Second Schedule, cl 1.1(b)(iii) and (iv) this clause defines Determination Notice. The notice must specify the area or areas of the Lands over which they claim exclusive beneficial ownership and the evidential basis for such claims. (c) Second Schedule, cl 6 this clause provides that the parties will embark on face to face discussions with each other with a view to reaching agreement as to the ownership of the Lands. (d) Second Schedule, cl 15.3 this clause requires that the Panel hear the claimants and their respective claims to the Lands; [91] Mr Goddard adds that the Deed makes it clear that in deciding who had beneficial ownership of the Lands prior to 1893, the Panel was required to consider tikanga and, in particular, which hapū held mana whenua in respect of the Lands. He points to cl 15.4 in the Second Schedule which requires that in hearing the claims, the Panel have regard to mana whenua and customary aspects of land tenure pre- NLC in determining the matter of ownership of the Lands. [92] Taken together, Mr Goddard submits these clauses demonstrate that the Panel s task was not to allocate beneficial ownership based on what it considered to be just or fair in all the circumstances. In particular, Mr Goddard points to the

30 Panel s use of the phrase justice will be done in delivering its conclusion. He submits that it is inherently implausible that the parties would confer on an arbitral panel the power to reallocate their customary lands on a discretionary basis. [93] Mr Goddard also submits that, had the Panel correctly understood its task, it would have been obliged to consider the evidence as to which hapū held mana whenua in respect of the Lands and make specific findings in respect of it. He submits that there is no such analysis in the Award, precisely because the Panel wished to avoid calling into question the findings made by the NLC. Further still, he argues that even if it was open to the Panel to allocate ownership on a basis other than who the beneficial owners of the Lands were prior to 1893, it was required to make findings on this issue and to determine the parties claims having regard to those findings. Its failure to do so, on any view of the Deed, amounts to an error of law. [94] Mr Goddard adds that the Panel s reasoning in respect of the findings it did make was manifestly inadequate. The Panel gave no reasons as to why a particular hapū had established an interest in respect of a particular parcel of land in accordance with mana whenua and customary aspects of land tenure pre-nlc, as the Deed required it to. The Panel did not reach its decision by starting from an ascertained position as at 1893 and explaining why and how this changed; nor did it identify the position as at 1893 and weigh this with other factors to reach a conclusion. Mr Goddard submits that, while both of these approaches would have been wrong as a matter of law, they would at least have been transparent. As it stands, he argues it is impossible to discern from the Award how the equal allocation of the reserves was determined from the mana whenua held by the parties prior to Did the panel correctly understand its task in accordance with the Deed? [95] In their written submissions, both parties have addressed this sub-part of the first question of law first. Given that my conclusion on this point will likely inform the subsequent discussion of the two remaining sub-parts, I consider it logical to adopt the same approach.

31 [96] There is little difference between the parties as to what the Panel s role was. It is clear from the Deed that its task was one of identification, not allocation. I accept Mr Goddard s submission that the Deed uses the language of pre-existing ownership. The clauses he turns the Court s attention to refer to hapū /iwi making claims to the Lands or being determined to be the beneficial owners of the Lands. As Mr Goddard submits, this is most naturally read as necessitating an inquiry into who the owners are, not who they ought to be having regard to considerations of justice or fairness. [97] This is supported by art 28, sch 1 of the Arbitration Act 1996, which states: (3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur (according to considerations of general justice and fairness) only if the parties have expressly authorised it to do so. [98] Likewise, it is clear from the Deed that in determining which iwi or hapū were the beneficial owners of the Lands, Māori customary concepts, and mana whenua in particular, needed to play a central role. Indeed, the Panel was required to take these considerations into account under cl 15.4 of the Second Schedule of the Deed: 15.4 In hearing the claims the Adjudication Panel will have regard to mana whenua and customary aspects of land tenure pre-native Land Court in determining the matter of ownership of the Lands. By way of guidance the Adjudication Panel may be assisted by the following: (a) (b) mana whenua is the mana that Iwi/hapū/individuals traditionally held and exercised over the land, determined according to tikanga including, but not limited to, such factors as: takawhenua 32 ; demonstration of ahi kaa roa 33 ; ahi tahutahu 34 or ahi mataotao 35 ; evidence of mana whenua may be derived from a range of sources of knowledge including: oral korero, including whakapapa, waiata and tribal history; and written sources, Native Land Court evidence and decisions, research, reports and other records; The grounds for the claim. Long burning or continuous fires of occupation. Intermittent occupation. Fires of occupation which have grown cold or gone out for a long period.

32 [99] As Mr Hodder pointed out, and the Panel itself recognised 36, the fact it was obliged to have regard to these factors did not prevent it from hearing evidence about subsequent events. The task the Panel faced can thus be stated succinctly: to determine which parties were the beneficial owners of the Lands, and in what proportions, having regard to mana whenua and customary aspects of land tenure pre-nlc. [100] Whether the Panel itself correctly understood its role requires a careful examination of the Award itself. The Panel described its task in the following way: 60. The objective of our determination is not expressly stated in the Trust Deed. Clear indications are however to be found in the name of the procedure ( Beneficial Entitlement Determination Procedure ), the description of Final Beneficiaries as those who are determined to be the beneficial owners and the references to the determination of ownership in clauses 15.4, 15.7 and 16 in the Second Schedule. Drawing these references together, we see our objective as being the determination of which hapu or individuals should be recognised as the owners of the three reserves and, if more than one, in what proportions. 61. The criteria against which we are to make that determination are set out in clause 15.4 of the Second Schedule. We must have regard to mana whenua and customary aspects of land tenure prior to the Native Land Court decisions. Subject to that mandatory requirement, we have a wide discretion as to what evidence we consider to be relevant and the weight to be accorded to that evidence. The Trust Deed tells us however, by way of guidance, that we may be assisted by the definition of mana whenua and the sources of evidence of mana whenua specified in paras (a) and (b) respectively (set out at [10] above). [Emphasis added] [101] In discussing the case for Ngāti Whakaue, the Panel re-iterated it was: 37 required to have regard to mana whenua and customary aspects of land tenure prior to the Native Land Court decisions [102] Finally, the Panel plainly turned its mind to the competing claims of mana whenua when, for example, it summarised the submissions of Ngāti Wahiao: [43] Mana is a traditional Māori term but mana whenua is not. The question of which group holds mana whenua over the lands is best answered by ascertaining which award of beneficial entitlement would be least inconsistent with the principles of tikanga Māori The Award at [11]. The Award at [31].

33 [103] In my judgement, the language employed in these passages indicates that the Panel correctly saw its task as being to identify and compare the parties pre-existing ownership interests based upon mana whenua and customary concepts of land tenure pre-nlc. There is no reference to justice or fairness as a relevant consideration or to the Panel having the discretion to allocate ownership interests based on these considerations. [104] The same is true of the Panel s ultimate conclusion: 66. In summary we have concluded that the three Ngāti Wahiao hapū and the three Ngāti Whakaue hapū have both established an ownership interest in Te Roto a Tamaheke Reserve and the Whakarewarewa Thermal Springs Reserve. Similarly, the three Ngāti Wahiao hapū and the Pukeroa Oruawhata Trust have both established an ownership interest in the Southern Arikikapakapa Reserve. 67. We think that those interests should be recognised as undivided shares. In other words, each interest should share in all the reserve rather than different parts of a reserve being allocated to different interests. The question of whether the shares should be equal is a difficult one. If we had been asked to apportion all the Whakarewarewa Valley lands we would have inclined to the view that the Ngati Wahiao interest should be somewhat greater than the Ngati Whakaue interest. We are mindful however that Ngati Wahiao continue to own most of the Whakarewarewa No 2 block which was awarded to them in 1893 whereas, following the Crown purchases, the Court in 1896 awarded to the Crown some 747 of the 871 acres in the Whakarewarewa No 1 block and 157 of the 215 acres in the Whakarewarewa no 2 block. We think therefore that justice will be done if ownership of the lands in the three reserves is apportioned equally between Ngati Wahiao and Ngati Whakaue. [105] Read as a whole and taken in context I am satisfied there is nothing to indicate the Panel saw its function and power as including the discretion to allocate ownership based on equitable considerations. I accept Mr Hodder s submission that the phrase that justice will be done was simply to recognise the Panel s view that the Award needed to reflect the general context and history of the Whakarewarewa Valley as a whole and that this told in favour of recognising equal but undivided ownership interests in the specific lands in question. [106] It follows I am satisfied the Panel did not misunderstand its task or misdirect itself under the Deed.

34 Did the Panel make the necessary findings on the evidence and provide sufficient reasons in support of its conclusions? The law [107] Article 31(2), sch 1 of the Arbitration Act 1996 states that: The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under article 30. That reasons were required in this case is confirmed by cl 15.8 of the Second Schedule to the Deed which explicitly provides for the giving of a decision with reasons. [108] The leading New Zealand decision on the application of art 31(2) is Casata Ltd v General Distributors Ltd. 38 Given its relevance, particularly in a discussion of what amounts to an error law in the arbitral context, it is useful to reproduce the following passage: 39 First, it is clear that the reasons given by an arbitral tribunal must not be so economical that a party is deprived of having an issue of law dealt with by the Court if necessary. Mr Hodder accepted that the particular areas where he asserts adequate reasons were not given would not give rise to such concerns. He pointed, however, to the requirement in art 31(2) of the First Schedule that an award shall state the reasons upon which it is based. We agree that this is wider than merely ensuring that any legal issues can be identified. We do not consider, however, that there is a requirement for arbitrators to give elaborate reasons for each and every component of the award. In particular, we doubt that an expert tribunal is necessarily required to provide a coherent reasoned rebuttal (as Bingham LJ put it in Eckersley v Binnie (1987) 18 Con LR 1 at which was cited with approval by the English Court of Appeal in Flannery v Halifax Estate Agencies Ltd 1 WLR 377, 381 (CA)) of all aspects of the expert evidence in the same way that a non-expert judge may be required to do. After all the arbitrators are chosen for their expertise. We consider that Rogers CJ in Imperial Leatherware Co Pty Ltd v Macri & Marcellino Pty Ltd (1991) 22 NSWLR 653, 657(citing an unreported decision of Smart J in Menna v HD Building Pty Ltd (1 December 1986)) set out the correct principles: Elaborate reasons finely expressed are not to be expected of an arbitrator. Further, the Court should not construe his reasons in an overly critical way. However, it is necessary that the arbitrator deal Casata Ltd v General Distributors Ltd Ltd [2005] 3 NZLR 156 (CA). At [89]-[91].

35 with the issues raised and make all necessary findings of fact The reasons must not be so economical that a party is deprived of having an issue of law dealt with by the Court. We observe that the English Court of Appeal in Flannery stressed the differing extent of the duty to give reasons, depending on the nature of the case. It, subsequently, in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, attempted to discourage a large number of applications, following the Flannery decision, for leave to appeal on the ground of inadequacy of reasons. [109] Other cases have also emphasised that an arbitrator s reasoning should not be scrutinised critically and should be read fairly and as a whole. Awards should not be vitiated by fine points. The modern approach is in favour of sustaining awards where that can be done fairly rather than destroying them. 40 [110] The position in England is similar. Donaldson LJ described a reasoned award in the following terms: 41 All that is necessary is that the arbitrators should set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what has happened, they have reached their decision and what that decision is. This is all that is meant by a reasoned award. [111] In that jurisdiction, it has also been held that so long as the relevant issues are addressed there is no need for the arbitral tribunal to deal with every possible argument. 42 It is also unnecessary for it to set out each step by which it reached its conclusion or to explain why it attached more weight to some evidence than to other evidence. 43 Likewise, it has been held that where the award contains a clear and unambiguous conclusion on a relevant question of fact, the need for further clarification does not arise. 44 Analysis [112] The Panel began its analysis by noting it had carefully reviewed the evidence the parties had presented regarding the mana whenua held in relation to the Lands in Money v Ven-Lu-Ree [1988] 2 NZLR 414 (CA) at 417 per Cooke P. Bremer Handelsgellschaft v Westzucker (No 2) [1981] 2 Lloyd s Rep 130 (EWCA) at Ascot Commodities NV v Olam International Ltd [2002] CLC 277 (Comm). World Trade Corp Ltd v C Czarnikow Sugar Ltd [2004] EWHC 2332 (Comm). Benaim (UK) Ltd v Davies Middleton & Davies Ltd [2005] EWHC 1370 (TCC), 102 Con LR 1 (QBD) at [96] citing World Trade Corp Ltd v C Czarnikow Sugar Ltd, above n 43.

36 accordance with tikanga. The actual Award, however, reveals little about the quality or the quantity of the evidence presented to it. By my calculation approximately 30 witnesses gave viva voce evidence. The notes of evidence run to more than 1200 pages. Additionally, there were site visits. Extensive submissions, opening and closing, were received. [113] Substantial briefs and reports were filed by expert witnesses called by the parties. For Ngāti Wahiao the material included Waitangi Tribunal evidence, extensive NLC records and files from government agencies. The evidence highlighted the various ways in which Ngāti Wahiao had demonstrated mana whenua at Whakarewarewa. The witnesses were cross-examined. Video footage was presented. Waiata and recitations of whakapapa were given during the extensive site visits and also during the hearing. The Ngāti Wahiao evidence was heard in their meeting house, Wahiao, at Whakarewarewa. [114] Evidence was received from Sir Edward Taihakurei Durie. This was referred to by both counsel in the course of their submissions before me. This evidence covered issues such as the political dimensions of the NLC, custom, the application of custom in determining title to land and, in particular, rights or claims (take) by use or occupation, mana whenua, absence and abandonment. [115] David Alexander, an environmental consultant and researcher with expertise in historical Māori land matters, presented a brief which ran to over 300 pages covering issues central to mana whenua held in relation to the Lands over time. Also of significance was his discussion of the ambiguity over the Battle of Te Puia which was relied on by Ngāti Whakaue in their assertion of consequent hegemony over Whakarewarewa; Ngāti Wahiao claimed they were not involved in the Battle. He was cross-examined at length. [116] Dr Marian Mare and Dr Aloma Palmer were co-authors of an extensive report commissioned by Ngāti Wahiao which reviewed the various claims to mana whenua over the Lands from the beginning of the 20 th century. This included a collection of oral history obtained from various members of the iwi some of whom gave evidence before the Panel. Both authors gave evidence and were cross-examined.

37 [117] The evidence for Ngāti Whakaue and the other parties 45 was similarly comprehensive. A lengthy brief of evidence 46 from historian Bruce Sterling, was received which examined Rotorua NLC Minute books, 19 th and 20 th century research reports and secondary sources such as the writings of renowned Rotorua historian, the late Don Stafford. The Ngāti Whakaue evidence focused on expressions of customary interests and mana whenua particularly relevant to Arikikapakapa and the adjacent areas from the 1870s onwards. Detailed briefs were also received from Ben Te Amohanga Manley whose evidence of mana whenua focused on the source of Ngāti Whakaue s occupancy and authority over their lands, particularly Arikikapakapa. He also described the Battle of Te Puia and its influence on mana whenua from Ngāti Whakaue s perspective. [118] Furthermore, the notes of evidence disclose that the term mana whenua was mentioned 458 times over the course of the February and May hearings. This statistic does not capture references where the term was used in a modified form, for example mana over the land or authority over the land. Mr Hodder produced a table which he described as a non-exhaustive list of the places in the notes of evidence where the term mana whenua was used and where its use was either to explain its meaning or where it was used in a way which was particularly useful in assisting the Panel in understanding its meaning. This table is attached as Appendix 2. [119] This necessarily abbreviated summary of the evidence presented by the parties provides some sense of the extent and depth of evidence of mana whenua which was before the Panel. [120] The findings the Panel made in relation to this evidence and its accompanying reasoning are, however, undeniably sparse. Having heard evidence for a full 13 days from a range of sources, the Panel s ultimate reasoning is to be found in just five paragraphs. From the point of view of resolving the longstanding dispute between the parties and avoiding the need for litigation, this lack of engagement is regrettable Pukeroa Oruawhata Trust, Tuhourangi ki Whakarewarewa and Tuhourangi Tribal Authority. This brief ran to over 240 paragraphs.

38 [121] It follows that the task of determining whether the findings and the accompanying reasoning are adequate presents some difficulty. I am mindful of the case law which has repeatedly emphasised the extent of the duty to give reasons differs depending on the nature of the case. 47 This dispute centred on the single issue of which parties could demonstrate mana whenua in the Lands in accordance with Maori customary concepts prior to the NLC decisions. That issue could only be determined by considering the voluminous body of historical evidence presented by the parties in both oral and written form. Much of the evidence on the parties historical relationships to individual portions of land was directly contradictory and simply incapable of resolution adopting convention judicial methods. [122] This feature of the evidence was commented upon by the Panel in relation to the case for the Tuhourangi Tribal Authority where it said: 48 An examination of the evidence presented to the Court in relation to the Pukeroa and Whakarewarewa blocks demonstrates that much of it was conflicting. What is clear, however, is that the Tuhourangi traditionally held mana whenua over the lands in dispute and exercised that mana whenua through its hapū. At Whakarewarewa, these were the hapū of Ngāti Wahiao. [123] The options available to the Panel were thus limited. It could have approached its task and presented its findings in one of two ways. First, it might have undertaken a strict and meticulous analysis of the evidence in relation to the specific parcels of land, and secondly made credibility or reliability findings in relation to the witnesses specifying who it preferred and for what reasons. [124] In my view this approach would have been both unsound and undesirable for several reasons. [125] First, the case law makes it clear that such a coherent reasoned rebuttal is unnecessary. The Panel was not obliged to articulate a step by step walkthrough of Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373 at 378 (CA); Westcorp Insurance Corp v Gordian Runoff Ltd [2011] HCA 37 at [53]; Casata Ltd v General Distributors Ltd, above n 38, at [91]. The Award at [52].

39 its reasoning process. The Court of Appeal in Casata left no doubt that an arbitrator is not to be compared to a non-expert Judge in this regard. 49 [126] Secondly, a detailed examination of this sort would, in practice, have been incredibly difficult and, to a significant extent, unreliable given the passage of time. [127] Thirdly, as Mr Hodder points out, such an approach would also have been unwise given that this dispute has been on foot for centuries and involves deeply and sincerely held beliefs by parties who will undoubtedly be required to work closely and co-operatively in the future. [128] Fourthly, even if the Panel had made detailed factual findings of this sort, this would not, own its own, have been sufficient to determine beneficial entitlement to the Lands. [129] In the context of the present case, the applicable principles of tikanga themselves were hotly contested. I agree with Mr Hodder when he says that these principles are in reality local, flexible and evolving. They require a degree of evaluative judgement in the sense that there is no true and only answer. There was no clear bright line of tikanga which could be applied to determine the competing claims of mana whenua to individual pieces of land. [130] The other available approach is much closer to what the Panel actually did. This involves carefully considering the evidence in the round and presenting an overall conclusion as to where the balance of the beneficial ownership interests lie in accordance with the imprecise and changeable aspects of tikanga. The Panel was uniquely qualified to do this. It comprised a former judge of the Supreme Court and a former member of the Waitangi Tribunal and two prominent and highly respected figures within Māoridom. This approach was necessarily impressionistic. However, I do not consider it can be criticised as amounting to a reallocation of the Lands on a discretionary or equitable basis. It was not based on broad conceptions of justice and fairness. The Panel s reasoning, limited as it is, still contains a number of important factual findings: 49 Casata Ltd v General Distributors Ltd, above n 38, at [90].

40 (a) At [63] the Panel noted it placed considerable weight on the mass of contemporaneous evidence presented to the NLC. It expressed the clear view that this evidence provided strong support for Ngāti Whakaue s claim of occupation. (b) At [64] the Panel stated it did not attach similar weight to the decisions of the NLC themselves regarding the mana whenua held in relation to the Lands. Three further reasons were provided in support of this conclusion: (i) First, the Panel accepted there was considerable substance to the submissions it had heard regarding why the conclusions of the NLC should be accorded less weight than would be accorded Court decisions today. (ii) Secondly, the Panel considered s 348 of the TTWMA made it impossible for orders of the Court to be called into question in the proceedings before the Panel on any grounds whatsoever. (iii) Thirdly, and this point is further expanded on below, the Panel stated that the land sales which occurred subsequent to the 1893 decision made it necessary to consider afresh the question of mana whenua. It explained that it was persuaded by the speed and volume of land sales by members of Ngāti Whakaue, as compared to members of Ngāti Wahiao. Plainly, the Panel considered that these sales shed light upon the degree of mana whenua each party held in the Lands as at [131] The Award makes it clear that the evidence, taken as a whole, and these specific findings in particular, led the Panel to conclude each party had demonstrated a beneficial ownership interest in the land. It follows from this finding, that the

41 Panel took the view that both parties held mana whenua in the Lands at the relevant time. [132] The Panel also turned its mind to the question of how this mana whenua compared and therefore in what proportions these beneficial ownership interests were held. It reached the conclusion that the beneficial ownership interests were equal. Again, the Panel provided reasons in support of its decision: (a) It stated that had it been asked to apportion the Whakarewarewa Valley lands, it would have considered the Ngāti Wahiao interest to be somewhat greater than the Ngāti Whakaue interest. 50 (b) However, it noted that this was counterbalanced by the fact that Ngāti Wahiao continue to own most of the No 2 block which had been awarded to them in 1893, whereas the Court awarded the Crown substantial portions of both the No 1 and No 2 blocks in [133] Contrary to Mr Goddard s submission, it is not impossible to discern from the Award how the equal allocation of the reserves was arrived at. The Panel clearly turned its mind to the strength of the parties claims in respect of the various portions of land. It simply reached the view that, overall, these interests were equal and should be held in undivided shares for ease of administration pending agreement. [134] For the reasons which have already been developed, there is no substance in the submission that the Panel deliberately failed to make the relevant findings so as to avoid calling into question the decisions of the NLC. [135] Standing back and reviewing the Award as a whole, the Panel was required to deal with the issue before it, being whether, and in what proportions, the parties had established beneficial ownership interests in the Lands having regard to mana whenua and Maori customary concepts. It was required to make necessary findings of fact to decide this issue and provide reasons sufficient so as not to deprive the parties of having an issue of law dealt with properly The Award at [67]. At [67].

42 [136] By a fine margin and for the reasons more fully set out above, I am satisfied the Panel did so in this case. It determined that both Ngāti Whakaue and Ngati Wāhiao had demonstrated beneficial ownership interests in the land, and that these interests were equal. It stated the findings of fact which led it to this conclusion. I consider that no more was required of it in the circumstances, either by the Deed or by the Arbitration Act [137] I am bolstered in this conclusion by the importance the Courts have customarily attached to the principle of arbitral finality both in New Zealand and in foreign jurisdictions. 52 It has repeatedly been emphasised that, through the Arbitration Act 1996, Parliament has chosen to place a premium on finality, certainty and party autonomy. The proper role of the Court is to intervene only where minimum standards of competence or fairness have been breached. I do not consider that the inadequacies in the present Award can be said to have reached that level. Did the Panel err in law in finding that Crown purchases of individualised interests in the Lands after 1893 resulted in loss of the mana whenua of the hapū in respect of those Lands? [138] In explaining why it did not accord significant weight to the actual decisions of the NLC, the Panel gave three reasons, the last of which was that the sales which occurred subsequent to the 1893 decision made it necessary to consider afresh the question of mana whenua. [139] At [65] of the Award the Panel expanded upon the last proposition. Ngāti Whakaue s second ground of appeal arises out of this passage: Developing that final point further, we consider that the consequence of the sale of land by a willing seller is that mana whenua moves from the seller to the buyer. As the evidence summarised at para [46] above establishes, a striking feature of the evidence is the speed and volume of sales by those of Ngati Whakaue who were awarded land compared to the very low level of sales by Ngati Wahiao. While financial hardship and less than scrupulous dealings by Crown agents may well have contributed to the Ngati Whakaue sales, that only serves to emphasise the point that Ngati Wahiao, facing at least as great hardship and the same agents, in almost all cases refused to sell. The differing approaches to selling may also be explained, in part, by 52 Gold and Resource Developments (NZ) Ltd v Doug Hood Ltd [2000] 3 NZLR 318 (CA) at [13]- [15], [43]-[47] and [51]-[52]; Money v Ven-Lu-Ree, above n 40, at 417; see also Law Commission Arbitration (NZLC R20, 1991) at [40]-[43].

43 Whakarewarewa being at the base of the Ngati Wahiao hapu, whereas that of the Ngati Whakaue hapu was at Ohinemutu. We therefore regard the evidence of sales and lack of sales as providing strong support for Ngati Wahiao s claim to mana whenua. Appellant s submissions [140] Mr Goddard focused on the Panel s initial observation that: the consequence of the sale of land by a willing seller is that mana whenua moves from the seller to the buyer. [141] He submits that this reasoning led the Panel to determine mana whenua passed from Ngāti Whakaue to the Crown. He rejects Ngāti Wahiao s argument that the Panel simply saw the post-1893 sales as evidence of pre-1893 mana whenua. He submits that had the Panel drawn this inference, it would have needed to weigh this with the other evidence relevant to pre-1893 mana whenua and make findings having taken all of this into account. Mr Goddard submits there is no reasoning of this kind anywhere in the Award and nothing which might reasonably be understood as such a finding. Indeed, the Panel expressly observed it did not propose to resolve the issue in order to avoid calling into question the NLC decisions. [142] Mr Goddard maintains that the Panel must have considered that mana whenua passed from Ngāti Whakaue to the Crown. He submits that this conclusion (particularly given that the sales were by individuals rather than the collective) is wrong as a matter of tikanga. Because tikanga forms part of the common law of New Zealand, he submits that this misunderstanding of tikanga constitutes an error of law. [143] Mr Goddard submits, by reference to the writings of Sir Edward Taihakurei Durie, 53 that the sale of individualised interests in land to the Crown does not fall within the concept of mana whenua. He supports this submission by reference to reports issued by the Waitangi Tribunal 54 and various statutes E Durie Custom Law (Unpublished paper, 1994). Waitangi Tribunal The Te Roroa Report 1992 (Wai 38, 1992) ch 1.3; Waitangi Tribunal The Pouakani Report 1993 (Wai 33, 1993) ch Conservation Act 1997, s 27A; Reserves Act 1977, s 77A; Walking Access Act 2008; Resource Management Act 1991, s 2; Fisheries Act 1996, s 2.

44 [144] The Panel s proposition that the sale of interests in land to the Crown post resulted in the loss of collective mana whenua on the part of Ngāti Whakaue also ignored the nature of the post-1893 sales as sales by individuals, not by the collective, of individual interests in land. [145] Drawing support from the Waitangi Tribunal s determination that the NLC s creation of individual interests in the Lands was undertaken in serious breach of the Treaty of Waitangi, 56 he submits that as a matter of Māori customary law such sales were not capable of transferring collective mana whenua from the hapū to the Crown, and could not and did not have that effect in the present case. [146] This principle is reflected in the wording of the Deed itself which, in setting out the nature of the enquiry to be undertaken by the Panel, defines mana whenua in terms which make it clear it cannot be held by the Crown as a result of nontraditional transactions entered into by individuals following the NLC s decision. [147] From this, Mr Goddard further develops his submission. He says that because tikanga forms part of the common law of New Zealand an error as to a principle of tikanga must necessarily constitute an error of law. He submits that questions of customary ownership/title are inextricably linked to the underlying customary law as the Court of Appeal has recognised. 57 Additionally, Mr Goddard places reliance on the judgment of the Chief Justice in Takamore v Clarke 58 where her Honour observed that values and cultural precepts important to New Zealand society must be weighed in the common law method used by the Court in exercising its inherent jurisdiction according to the materiality in the particular case, an approach which has also been adopted recently in this Court. 59 [148] While accepting that: 60 the law cannot give effect to custom or values which are contrary to statute or to fundamental principles and policies of the law Waitangi Tribunal He Maunga Rongo Report on Central North Island Claims (Wai 1200, 2008) vol 2 at 625. Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) at [138]. Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733. Te Roroa Whatu Ora Custodian Limited v Kereopa [2012] NZHC 1052 at [3]. Takamore v Clarke, above n 58, at [95].

45 Mr Goddard submits the present case does not involve such a clash. He submits that the relevant tikanga forms part of the legal framework which was required to be applied to resolve the dispute and is thus properly seen as forming part of the applicable common law. An error in identifying or applying that customary law is, a fortiori, an error of law. [149] Furthermore, even if the Court was to find that tikanga does not form part of the common law for all purposes, it is clear that an error in relation to tikanga is a question of law under the Arbitration Act 1996 for the purposes of an arbitration which is required to be determined by applying tikanga to some or all of the issues between the parties. This is because cl 5(10), sch 2 of the Arbitration Act defines question of law as including an error of law which involves an incorrect interpretation of the applicable law. Under art 28, sch 1, the applicable law is the law according to which the parties have decided the tribunal will determine a dispute. Here, he submits, the parties agreed that the dispute would be determined by reference to tikanga/customary law. Whatever the status of tikanga might be in other contexts, in this case customary law forms part of the rules of law chosen by the parties as applicable to the substance of the dispute. Thus an incorrect interpretation of tikanga constitutes an error of law because tikanga forms part of the common law of New Zealand or because it is the applicable law under art 28, sch 1. [150] Finally, Mr Goddard submits that an error in the interpretation of the Deed is plainly an error of law. The Panel s approach to the transfer of mana whenua was inconsistent with the way in which the concept of mana whenua is defined in the Deed. It is plain from the Deed that mana whenua cannot be acquired by the Crown and cannot be acquired as a result of non-traditional dealings of the kind that led to the Crown s acquisition of the Lands. Thus by proceeding on a basis which was inconsistent with the provisions relating to mana whenua in the Deed, which defined the enquiry they were required to undertake, the Panel erred in law.

46 Did the Panel find that Ngāti Whakaue, through its sales to the Crown, lost its mana whenua in respect of the Lands? [151] This question is central to Ngāti Whakaue s claim that the Panel erred when it found the post-1893 Crown purchases resulted in a loss of mana whenua. If that is not what the Panel determined Ngāti Whakaue s argument on this point must necessarily fail. [152] In examining this question it is necessary to consider the Panel s words in the first sentence of [65] of the Award in the wider context of that paragraph, adjacent paragraphs and the decision read as a whole. [153] The following observations from the Award are relevant: (a) evidence of post-nlc events would be received and considered; 61 (b) Ngāti Wahiao s case and in particular the essence of the evidence of David Alexander, for Ngāti Wahiao, on the Crown purchases; 62 (c) the post-1893 sales required the Panel to consider the question of mana whenua afresh because the conclusions of the NLC were accorded less weight than modern Court decisions and the Panel s concerns around the applicability of s 348 of the TTWMA; 63 (d) [65] needs to be read with the conclusions contained in [66] and, in particular, the weight the Panel placed on the sales evidence and the support that evidence gave to Ngāti Wahiao s claim to mana whenua. [154] These elements of the Award led to the conclusion that on the evidence both the Ngāti Whakaue and Ngāti Wahiao interests had established ownership interests in the Lands The Award at [11]. At [46] to [47]. At [64]. At [66].

47 [155] Significantly, the conclusion that Ngāti Whakaue and Ngāti Wahiao had both established interests in the Lands necessarily means that the Panel did not find that Ngāti Whakaue had, through its sales to the Crown, lost its mana whenua in respect of the Lands. [156] Had that been the Panel s decision Ngāti Wahiao would have succeeded, either entirely or substantially, in its exclusive claim to the mana whenua in the Lands, investing some force in Mr Goddard s submission that: The proposition that the extensive acquisitions by the Crown in the nineteenth century deprived hapū of their mana whenua in respect of the acquired lands is a novel and surprising one and it is fundamentally wrong as a matter of tikanga. [157] But that is not what the Panel said or found. [158] The first sentence in [65] of the Award is unfortunately phrased and, understandably, has led to a degree of confusion. However, I agree with Mr Hodder than when read in context, the words complained of were used for the purpose of setting the backdrop to Ngāti Wahiao s affirmative claim to mana whenua. In doing so the Panel was relying on evidence placed before it. [159] By way of example, David Alexander s evidence dealt with mana whenua tradition prior to the 1830s, mana whenua tradition between the 1830s and 1870s and mana whenua tradition expressed in dealings with the Crown and the NLC between 1880 and He also dealt with events which were relevant to mana whenua tradition between the 1870s and 1893 as well as the sale to the Crown of interests in the partition blocks (1893 to 1901) and what those sales might say about mana whenua. Mr Alexander s opinion was that the post-1893 sales indicated that Ngāti Whakaue made a collective decision to disengage from Whakarewarewa. [160] Consistent with this evidence, and the submissions of counsel for Ngāti Wahiao, the Panel concluded that the sales evidence provided strong support for that party s claim. In doing so I consider it clear that the Panel simply drew the inference that Ngāti Whakaue s increased willingness to sell provided evidence of its ties to the land as at or prior to 1893, and hence that the mana whenua it held in relation to

48 those lands, may not have been as strong as Ngāti Wahiao s. As Mr Hodder submits, it provided something of a set-off by providing balance in relation to the Panel s earlier acknowledgement that the evidence, particularly that of the NLC, provided strong support for Ngāti Whakaue s claim. 65 [161] For these reasons, I am satisfied that there was no error as to tikanga. [162] Even if I am wrong, I am not satisfied that the Panel s reasoning on the consequence of a sale of land amounts to an error of law for the reasons which follow. Was there an error of law? [163] The case for Ngāti Whakaue is simple. Mr Goddard submits that an error as to a principle of tikanga constitutes an error of law because tikanga forms part of the common law of New Zealand. Thus, where questions of customary title fail to be decided in legal proceedings the relevant legal principles are the applicable principles of tikanga and customary law. [164] I did not understand Mr Hodder to submit otherwise. But the argument for Ngāti Wahiao is more nuanced. It is that this Court may not presume to know inherently, even with submissions, the body of New Zealand law which comprises tikanga and Māori customary entitlements. Such law must be proved by evidence as a matter of fact. Māori custom may be local, flexible and evolving with the consequence that general and widely applicable principles, a certainty which the English common law tradition strives for, may be difficult to achieve when dealing with applicable tikanga and Māori customary law. [165] This approach was described by Sir Edward Taihakurei Durie in his evidence before the Panel. Referring to what he termed one of the big problems in the Native Land Court he observed NLC Judges would consistently look for a single norm by which they could decide matters. He said they could not cope with the complexities 65 The Award at [63].

49 of Māori custom and would thus resort to asking whether a particular aspect of tikanga was a rule or not. He put it this way: The Māori approach is to have a smorgasbord of things that seem right or wrong for a particular occasion and find the norm that s right for that particular circumstance so you had this sort of situation, the Judge saying, Is it a rule or is it not a rule? and the people, Well it depends.... [166] In the context of discussing customary rights to land he observed that these endured even after the NLC had done its business. In relation to the NLC he said: Although [the Native Land Court] was set up to introduce a different land tenure system, wherever the statute left gaps by which custom could still be determined then custom would still apply and one of the reasons today why I think that principle ought to be maintained if the Panel was looking for some set of principles that might guide them then I suggest that one should look at the rights of indigenous people as declared by the United Nations. Those rights are presumed to have been always in existence and they are a pretty important source of principle and they make very clear that the custom laws of peoples continue to survive for so long as they want to keep them. The relevance is this, that if people left the land, if people left their land in this instance then whether or not they had sold their shares if they simply left in accordance with Māori custom the fires went cold. [167] On the same theme, he continued: the Māori people have to deal with governments who still continue to assume that Māori matters can be simplified down to a single norm, the one rule That s not Māori customs. It s not Māori custom. Trying to lock by descent they re characterised by descent and if people left the tribe and went to some other place their fires could grow cold. What they had was whakapapa and that whakapapa will always get them back into the tribe again if they seek to come back in but they must seek it and they must show the commitment to it. And so in the old days when people went out to battle the tribe was always defined by the people who were there to fight. It was never defined by the people who were not there. Now governments haven t got a grasp on this one yet. They re still saying that people who can vote in these post-settlement governance entities are all the descendants. That places a real threat on Māori custom because it reduces the capacity of the people who remain behind to look after the marae. It means that decisions for Māori are being made principally by absentees.

50 [168] No doubt in recognition of these issues the Courts have accepted that while there is a greater flexibility about the certainty and immutability of aspects of customary law in New Zealand, proof by evidence remains a feature of the case law. 66 [169] The Supreme Court in Takamore v Clarke 67 considered the interface between tikanga and English common law principles in relation to competing claims to the custody and burial rights of a body. The majority regarded issues of tikanga relating to the burial of a deceased person to be relevant considerations for the exercise by executors of a general common law discretion. Although Elias CJ took a different view of the executor s discretion, she agreed that Māori custom according to tikanga is a question of fact and part of the values of the common law. She observed: [95] What constitutes Māori custom or tikanga in the particular case is a question of fact for expert evidence A Court asked to identify the content of custom by evidence is not engaged in the same process of interpretation or law creation as its responsibility in stating the common law. As in all cases where custom or values are invoked, the law cannot give effect to custom or values which are contrary to statute or to fundamental principles and policies of the law. But it is necessary for the Court to take care in identifying the custom or values truly relevant to its determination. [170] These observations are consistent with academic writings on the subject. In discussing New Zealand common law and customary law, Boast observed that the common law is presumed to be known to the Court, and does not need to be proved. 68 Points of law are matters for argument and submission by counsel, not evidence and proof. However, this is to be contrasted to those instances where the Court is dealing with bodies of law not known to it. These are required to be Public Trustee v Loasby (1908) 27 NZLR 801 (SC) (Requirements for a tangi in Māori custom were required to be proved as facts); Arani v Public Trustee [1920] AC 198 (PC) (Adoption of children); McRitchie v Taranaki Fish and Game Council [1999] 2 NZLR 139 (CA) (Local fishing rights were determined by reference to the customs of the particular iwi or hapū in relation to the particular waters and the rights arising there from are highly fact specific and required to be ascertained as matters of fact); Attorney-General v Ngāti Apa, above n 57, (Confirmed Māori customary rights as part of the common law of New Zealand to be identified in specific cases as matters of fact and tikanga); Takamore v Clarke, above n 58, (Māori custom according to tikanga is a question of fact and part of the values of New Zealand common law); Re Tipene [2015] NZHC 2923 (HC) (Appointment of a Court expert with knowledge and experience of tikanga (Pūkenga) to provide expert assistance on tikanga relevant to the particular geographical area in question). Takamore v Clarke, above n 58. Richard Boast in Boast, Erueti, McPhail & Smith Māori Land Law (2 nd ed, LexisNexis, Wellington, 2004) at

51 proved by appropriately qualified experts. The requirement of proof applies to local customs, to indigenous customary laws and to foreign law. [171] Boast, in his discussion of this topic by reference to the New Zealand case law, observed that it indicates that Māori customary law is regarded as analogous to foreign law in the sense that it has to be proved by an appropriately qualified expert. The exception is where by frequent proof, the matter has become notorious to the Court in which case judicial notice may be taken of the customary law. This applies to the proof of customary law in all contexts whether by way of statutory incorporation or as an aspect of the New Zealand common law. In a paper entitled Maori Custom and Values in New Zealand Law, the Law Commission endorsed comments to similar effect. 69 [172] In discussing Māori customary law and the MLC, Boast 70 observes that in the early days of the Court matters touching on Māori custom do not appear to have been proved. Instead, the Judges not always justifiably relied on their own expertise. He observed that having regard to how long the MLC operated some of its interpretations of Māori customary law have become notorious and are no longer required to be proved. [173] However, nothing in this commentary nor anywhere in the case law, is there any suggestion that the principles around mana whenua have been so frequently proved that it has become notorious. [174] This is hardly surprising. The variability of opinion on the topic, the influences of context (particularly time and space) and the deeply divergent views of the contesting parties necessarily means concepts of mana whenua have not assumed notorious status. [175] Even what might have been regarded as a settled principle of tikanga, namely that mana whenua continues after a Crown title is issued, was described by one Ngāti Law Commission Maori Custom and Values in New Zealand Law (NZLC SP9, 2001) at [43] citing AN Allot The Judicial Ascertainment of Customary Law in British Africa (1957) 20 MLR 244 at 246. Boast Māori Land Law, above n 68, at

52 Whakaue expert as too difficult a question to answer, adding, It would be a thesis unto itself. 71 [176] In determining tikanga the Panel was expressly entitled by the Deed to have regard to mana whenua and evidence of mana whenua. The parties adduced competing evidence of mana whenua in support of their respective claims. The Panel considered this evidence and from it determined beneficial entitlement in terms of its task under the Second Schedule. I agree with Mr Hodder that the corollary of relevant Māori customs being evidence-based matters of fact is that their identification and application are not questions of law in an appellate context unless the specific custom has become so notorious as to no longer require proof. 72 [177] Furthermore, and relevant to this consideration, is the composition of the Panel which included eminent figures with expertise in Māori custom. This principle was discussed by Durie J in Karanui v Director-General of Social Welfare 73 which involved a case-stated appeal on a question of law against the Social Security Appeal Authority s decision dismissing the appellant s cancellation of her accommodation benefit. The appellant, who was Māori, claimed the Authority should have taken into account cultural factors when assessing her continued entitlement to an accommodation benefit. In dismissing the appeal, Durie J determined that Māori customary factors could be assumed to have been taken into account by the expert tribunal, a member of which was well known for her comprehensive knowledge of Māori customary principles. He determined no question of law arose. [178] That consideration, in my view, applies to the present arbitral context as well. It was for the Panel to determine the materiality or weight of the evidence. It was well placed and eminently qualified to do so. [179] It follows I am not satisfied that the Panel made an error of law Ben Te Amohanga Manley. See too McRitchie v Taranaki Fish and Game Council, above n 66, per Richardson P at 147. Karanui v Director-General of Social Welfare Wellington AP 142/97, 30 October 2002 (HC).

53 Was the Panel s approach inconsistent with the definition of mana whenua in the Deed? [180] Mr Goddard submits the Panel s approach to the transfer of mana whenua was inconsistent with the way in which the concept of mana whenua is defined in the Deed. He submits the Deed makes it plain that mana whenua cannot be acquired by the Crown and cannot be acquired as a result of non-traditional dealings of the kind that led to the Crown s acquisition of the relevant Lands. He submits that by proceeding on a basis which was inconsistent with the provisions in the Deed which defined how the enquiry was to be undertaken, the Panel erred in law. [181] Having regard to the discussion above, this ground can be dismissed reasonably swiftly. [182] First, for the reasons already given, I do not accept the Panel concluded that mana whenua may be acquired by the Crown. Secondly, I do not accept the Panel concluded that mana whenua could be acquired as a result of non traditional dealings of the kind which led to the Crown s acquisition of the relevant Lands. If the Panel had operated on the basis submitted by Mr Goddard the result would have been quite different; Ngāti Whakaue would have been found to have had little or no beneficial entitlement. [183] Plainly that was not the basis on which the Panel approached its task and for those reasons I am also satisfied the Panel did not err in law. Did the Panel err in law by treating Crown purchases of individualised interests in land post-1893 as a relevant consideration in determining the dispute before it? [184] This argument is closely connected to the issues which have already been discussed in the preceding section. [185] The focus is on the meaning of the words of the first sentence of [65] of the Award.

54 Appellant s submissions [186] In summary, Mr Goddard s submission under this heading is two-fold. First, he submits the Panel erred in law in treating the post-1893 sales as evidence of a transfer of mana whenua to the Crown. In doing so it took into account an irrelevant consideration which was material to its decision and thus erred. Secondly, he submits the Panel failed to comply with the principles of natural justice by denying the parties, notably Ngāti Whakaue, a meaningful opportunity to address the issue. [187] Developing these arguments more fully Mr Goddard submits the treatment of the post-1893 sales was not a relevant consideration and should not have formed part of the Panel s evaluation because: (a) the sales of individual interests in land were created in breach of the Treaty and were by individuals rather than the collective hapū; (b) the Waitangi Tribunal determined the sales to the Crown were wrongful and unjust. As such the acquisition of individual shares in land, in a manner inconsistent with the collective desire of the hapū to retain their ancestral lands, cannot defeat the claims of the hapū to beneficial ownership of the land following the return of that land by the wrongful acquirer; (c) the sales to the Crown were reversed by the vesting of the land in the Joint Trust in recognition of the historical wrongs associated with the sales and partition process. As a matter of logic and legal principle, transfers which have been reversed in recognition of wrongful and unjust conduct on the part of the Crown cannot be relevant to ascertaining beneficial ownership. [188] Mr Goddard also claims the Panel failed to comply with the requirements of natural justice arising from the alleged error by the Panel in finding that the Crown s acquisition of individualised interests in land in the 19 th century deprived hapū of their mana whenua in respect of the acquired Lands. At the arbitration this was not argued by any party nor was it put by either of the parties to the Panel. As such, the

55 Panel contravened its legal obligations not to unexpectedly decide the case on a point which the arbitrator invented thereby taking the parties by surprise and depriving them of their right to address the issue in full argument. [189] As a result it is submitted there was no genuine opportunity for the appellants to be heard on what turned out to be a central plank of the Panel s reasoning. Material which would otherwise have been referred to the Panel in contradiction was not referred to. No party drew the Panel s attention to the inconsistency between this line of reasoning and the definition of mana whenua in the Deed. Given the importance of this finding to the Panel s reasoning it should not have been made without the appellants being afforded the opportunity to address it. [190] Mr Goddard emphasises the distinction between the effect of post-1893 transfers on mana whenua as a matter of tikanga and the evidential significance of such transfers when making findings about pre-1893 mana whenua. He accepts there was considerable argument before the Panel about the post-1893 sales but it was never suggested by any party, or by the Panel itself in the course of the hearing, that those sales could have the effect of shifting mana whenua away from the customary owner to the Crown. He submits the Panel should not have proceeded on that basis without giving all parties a meaningful opportunity to address the issue commensurate with the significance attributed to it by the Panel. Analysis (a) Irrelevant consideration [191] For the same reasons as have already been discussed, this point may be dealt with economically. [192] I do not accept the Panel treated the sales of individual interests in land to the Crown as transferring mana whenua in the Lands to the Crown. I have already given my reasons for coming to that decision. [193] I agree with Mr Hodder this question seeks to second guess the Panel s acceptance and assessment of evidence in relation to a question of fact on the central

56 issue of mana whenua. The sales were not legally irrelevant. The task of the Panel under the Deed was to hear the respective claims to the Lands and determine ownership of the Lands having regard to mana whenua and customary aspects of land tenure pre-nlcs. As it was entitled to the Panel took the view that the post sales shed light on the mana whenua held by the parties as at and prior to (b) Breach of natural justice [194] It cannot be said that the issue of transfer of mana whenua was not considered by the parties in the context of the post-1893 sales. And as I understand Mr Goddard, he accepts there was considerable argument about these sales and their significance. But his submission is different. It is that the Panel never gave the parties notice it would proceed on the basis the sales shifted mana whenua to the Crown. [195] The obligations on an arbitrator were helpfully summarised by Fisher J in Trustees of Rotoaira Forest Trust v Attorney-General. 74 He said: the arbitrator must confine himself to the material put before him by the parties unless the contrary is agreed. This extends to the arbitrator s own opinions, ideas and knowledge where either party might otherwise be taken by surprise to that parties prejudice. If the arbitrator unexpectedly decides the case on a point which he has invented himself he creates surprise and deprives the parties of their right to address full argument to the case which they have to answer (Case references and citations omitted) [196] At 462 he observed: Ultimately the question whether there has been unacceptable surprise must come down to question of fact and degree to be determined in the individual case. [197] More specifically, in summarising the principles which need to be applied he relevantly observed at 463: (d) It will also be necessary that each party be given an opportunity to understand, test and rebut its opponent s case; that there be a hearing of which there is reasonable notice; that the parties and their 74 Trustees of Rotoaira Forest Trust v Attorney-General [1999] 2 NZLR 452 (HC) at 460 and 462.

57 advisors have the opportunity to be present throughout the hearing; and that each party be given reasonable opportunity to present evidence and argument in support of its own case, test its opponent s case in cross-examination, and rebut adverse evidence and argument. (g) (h) An arbitrator is not bound to slavishly adopt the position advocated by one party or the other. It will usually be no course for surprise that arbitrators make their own assessments of evidentiary weight and credibility, pick and choose between different aspects of an expert s evidence, reshuffle the way in which different concepts have been combined, make their value judgements between the extremes presented, and exercise reasonable latitude in drawing their own conclusions from the material presented. Nor is an arbitrator under any general obligation to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he finally commits himself. [198] Applying these principles to the present case I am easily satisfied that the evidence of land sales and the inferences which might properly be drawn from them on the question of mana whenua, was very much a live issue and one which was traversed extensively in the evidence and in the submissions. [199] A review of the evidence and submissions makes it plain the question of mana whenua was seen as highly relevant to the issue of assessing beneficial ownership and one of the relevant factors was what inferences could properly be drawn from the evidence of the post-1893 sales. The evidence of Mr Alexander squarely confronted that issue. He said the evidence of the post-1893 sales by Ngāti Whakaue and Ngāti Wahiao was highly relevant in the assessment of the competing claims of mana whenua over the Lands. This evidence was challenged by Ngāti Whakaue. Mr Alexander was specifically questioned on the issue of the post-1893 land sales. In reply to a question in cross-examination as to what evidence he relied on to support his statement he said: While Ngāti Whakaue seemed to have been consistently in favour of sale Ngāti Wahiao views varied with some supporting sale and others having learned of offers to sell having been made to the Crown writing to express their opposition. [200] Evidence tending to contradict that proposition was put to Mr Alexander for his comment. Alternative reasons to account for why Ngāti Whakaue might have

58 sold to the Crown were proffered, including the financial hardship which the hapū was experiencing at the end of the 19 th century. [201] The extensive cross-examination of Mr Alexander arose from a chapter of his report entitled, Sale to the Crown of Interests in the Partition Blocks , and what those Sales might say about Mana Whenua. In that part of his evidence, in tabular form, he identified and listed the number of original owners (as defined by the NLC) of both hapū who sold their interests in the period between 1893 and In commenting on the dramatically different responses by the respective hapū to the Crown s offer to purchase, he said that that feature could not be dismissed as a matter of chance, noting that over 90 per cent of the individuals on each of the three Ngāti Whakaue hapū lists offered to sell while less than 20 per cent of the individuals on two of the three Ngāti Wahiao hapū lists sold their interests and, in the case of the third Ngāti Wahiao hapū, no one sold at all. [202] He also noted that the sales of the Ngāti Whakaue hapū individuals were concentrated into a shorter timeframe while the Ngāti Wahiao hapū sales displayed a more occasional pattern without any particular peak of activity. He concluded the only conceivable inference to be drawn from the sales data and from the actions of the leading figures in the different hapū is that the decisions whether to sell or not were reached collectively; they were tribal decisions which were then reflected in the myriad of individual decisions to sell. He said the three Ngāti Whakaue hapū together opted to disengage from Whakarewarewa. That the Crown was not 100 per cent successful in acquiring all Ngāti Whakaue hapū shares could probably be attributed to the practical difficulties the Crown agents faced in identifying and locating individual owners. He said that Ngāti Whakaue s disengagement was not just from Whakarewarewa; it was part of a more general pattern where the hapū pulled back and concentrated its ownership and energies closer to Ohinemutu. [203] Mr Alexander noted it was not hard to think of reasons why the responses of the two hapū groupings would be so different. Many of the members of the three Ngāti Wahiao hapū were living at Whakarewarewa and thus had little incentive to sell the land beneath their feet. In contrast, Ngāti Whakaue members were living at

59 Ohinemutu and had not made use of Whakarewarewa for at least 15 years prior to the start of the Crown purchasing. [204] He posited that another possible reason for the different responses was that Ngāti Whakaue realised their claim to Whakarewarewa was incorrect or insubstantial despite the amount of effort they invested into the NLC hearings and the success they achieved as measured by the awards of the NLC. Having little or no standing in the block they had little attachment to it and were willing to part with their interest in it. [205] While this evidence was undoubtedly controversial and was extensively challenged it is not the function of this Court to determine whether or not it was correct and/or what weight the Panel should have attached to it. That was very much a matter for the assessment and expertise of the Panel. [206] Nor can it be said the sales were legally irrelevant. They went to the central issue the Panel was charged with the responsibility of determining; the ownership of the Lands according to mana whenua and customary aspects of land tenure pre-nlc. As the Panel itself noted, the Deed did not confine the Panel from hearing or considering subsequent events. 75 [207] Mr Alexander s evidence was relied on by counsel for Ngāti Wahiao in closing submissions. Counsel referred to his evidence, and in particular Ngāti Wahiao s refusal to sell the individualised interests to the Crown post-1893, submitting that this demonstrated the hapū s continuing mana whenua in relation to the Lands. It was also submitted that Ngāti Whakaue s rapid decision to sell ran counter to its claims to mana whenua over the Lands. [208] That this issue was well placed before the Panel is apparent from the closing submissions by the Ngāti Whakaue Pukeroa Oruawhata interest. The topic was also traversed in the post-hearing reply submissions. Mr Alexander s evidence was described as contrary to standard Waitangi Tribunal jurisprudence and ultimately untenable. Specific reference was made to the Waitangi Tribunal s criticisms of the 75 The Award at [11].

60 Crown s purchase of Māori land in the late 19 th century. Extracts of the relevant portions of the Tribunal s decision 76 were quoted with the acknowledgement that although the findings of the Tribunal were not binding on the Panel they were highly persuasive. [209] I note that in addition to being cross-examined, Mr Alexander was also questioned by the Panel. Thus it cannot be said that the inferences to be drawn from the land sales on the question of mana whenua was an issue which could of or did take the parties by surprise. Should the Award be set aside under art 34, sch 1 of the Arbitration Act 1996? [210] Ngāti Whakaue also seeks to set aside the Award pursuant to art 34, sch 1 of the Arbitration Act This relevantly reads: (1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3). (2) An arbitral award may be set aside by the High Court only if (a) the party making the application furnishes proof that (i) (ii) (iii) a party to the arbitration agreement was under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it, or, failing any indication on that question, under the law of New Zealand; or the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party s case; or the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or 76 At 619 to 625.

61 (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this schedule from which the parties cannot derogate, or, failing such agreement, was not in accordance with this schedule; or (b) the High Court finds that (i) (ii) the subject matter of the dispute is not capable of settlement by arbitration under the law of New Zealand; or the award is in conflict with the public policy of New Zealand. (6) For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii), it is hereby declared that an award is in conflict with the public policy of New Zealand if (a) the making of the award was induced or affected by fraud or corruption; or (b) a breach of the rules of natural justice occurred (i) (ii) during the arbitral proceedings; or in connection with the making of the award. [211] Ngāti Whakaue argues that the Panel breached the rules of natural justice in adopting the proposition that sales of individualised interests in land post-1893 could have the effect of shifting mana whenua away from the customary owner to the Crown in circumstances where the proposition was never put forward by any party or by the Panel in the course of the hearing. Plainly this submission, as Mr Goddard accepts, overlaps with the third question of law on which the Court of Appeal granted leave. [212] Ngāti Whakaue does not specify which limb of art 34(2)(a) is engaged. Arguably (iii) provides the closest fit. However, this is immaterial because the argument can be dealt with in short order. For the same reasons I gave in relation to the second and third questions of law, I am satisfied that the Panel did not adopt the proposition that sales of individualised interests in land post-1893 had the effect of

62 shifting mana whenua away from the customary owners to the Crown. I am further satisfied that the evidence of land sales and the inferences which might properly be drawn from them on the question of mana whenua, was a contentious issue before the Panel and was comprehensively addressed in the evidence and in the submissions of the parties. [213] It follows that the application to set aside the Award must also be dismissed. Result [214] Each of the questions of law for which Ngāti Whakaue obtained leave is answered in the negative. [215] The appeal is dismissed. Costs [216] Ngāti Wahiao as the successful party is entitled to costs. [217] As is agreed by the parties the appeal is categorised as 3B (requiring senior counsel) for costs purposes and extends to costs for second counsel including reasonable out of town and other disbursements as fixed by the Registrar. Final Remarks [218] First, I acknowledge my indebtedness to all counsel for their assistance especially Mr Goddard and Mr Hodder who carried the weight of the oral argument. The quality of the written submissions, so ably augmented orally has made the task of determining this difficult matter, a good deal easier than it might otherwise have been. [219] Secondly, I express my sincere gratitude to the parties. As I stated at the close of the hearing, both sides have conducted themselves with commendable grace and dignity, qualities which reflect well on them. At the beginning of this judgment I recorded the fact that these Lands are of great spiritual significance to both parties. There will be differences in how the respective mana whenua is viewed but what I

63 observed over the three days of argument before me permits a level of comfort and optimism. This is an encouraging sign for the future governance of these important and special Lands. Moore J Solicitors/Counsel: Corban Revell, Auckland Mr Geiringer, Wellington Woodward Law, Wellington Mr Goddard QC, Wellington Mr Hodder QC, Wellington

64 Appendix 1