RESERVED JUDGMENT OF JUDGE S TE A MILROY

Transcription

1 114 Hauraki MB 34 IN THE MAORI LAND COURT WAIKATO-MANIAPOTO UNDER A Sections 26B, 26C, 26D and 26E of Te Ture Whenua Maori Act 1993 and Sections 180, 181, 182 and 183 of the Maori Fisheries Act 2004 BETWEEN AND DAVID TAIP ARI, WILLIAM PETERS, PAHI TUPUHI AND JOHN TAMIHERE Applicants HAURAKI MAORI TRUST BOARD Respondent Hearing: 6 December 2007 (Heard at Hamilton) Appearances: Mr Paul Majurey Mr Martin Logan Mr Jamie Ferguson Ms Justine Inns Judgment: 30 April 2008 RESERVED JUDGMENT OF JUDGE S TE A MILROY Summary of Decision [1] This decision holds as follows: a) The meaning of section 17(2)(b )(i) of the Maori Fisheries Act 2004 is that constitutional documents referred to in section 17(1) of the Act must be ratified in the case of a mandated iwi organisation by 75% of the total vote of adult members of the iwi, whether they vote in person at a general meeting called for the purpose of adopting the constitution or by postal ballot. The documents do not need to be DAVID TAIP ARI, WILLIAM PETERS, PAHI TUPum AND JOHN TAMlHERE V HAURAKI MAORI ~~. '; AAv1 /. VV"~ d

2 114 Hauraki MB 35 ratified separately by 75% of the adult members of the iwi w~o vote at the general meeting and by 75% of the adult members of the iwi who vote in the postal ballot. b) In accordance with the principles of the doctrine of equitable estoppel the Hauraki Maori Trust Board ("the Board) is estopped from applying to Te Ohu Kaimoana Trustee Limited ("Te Ohu") for recognition as a Joint Mandated Iwi Organisation ("JMIO"). The Board's representations to the iwi of Hauraki that: i) The ratification hui was a valid, effective and integral part of the ratification process; and ii) A vote giving 75% approval of the constitutional documents was required at the ratification hui, were relied on by voters at the ratification hui. All the voters at the hui suffered the detriment of their vote not being counted as valid by the Board in making its application to Te Ohu for recognition as a JMIO. The "no" voters at the hui suffered the additional detriment in that they held a reasonable expectation that if 75% approval was not obtained at the ratification hui the Board would not apply for JMIO recognition. By a narrow margin it is unconscionable for the Board to depart from the beliefs raised by the representations as that departure constituted a disenfranchisement of the voters who voted in person at the ratification hui. c) On the basis of these findings the parties are now directed to proceed to mediation. A full discussion as to the grounds upon which the above findings are made is set out in paragraphs [114] and following. DAVID TAIPARI, WILLIAM PETERS, PAHI TUPUHI AND JOHN TAMIHERE V HAURAKI MAORI

3 114 Hauraki MB 36 Background [2] The Hauraki Maori Trust Board ("the Board") is constituted pursuant to the Hauraki Maori Trust Board Act It is a Maori Trust Board within the meaning and for the purposes of the Maori Trust Boards Act The beneficiaries of the Board are the descendants of N gati Hako, N gati He, N gati Maru, N gati Paoa, Patukirikiri, Ngati Porou ki Harataunga ki Mataura, Ngati Pukenga ki Waio, Ngati Raheretumutumu, Ngai Tai, Ngati Tamatera, Ngati Taratokanui and Ngati Whanaunga. The Board is made up of twelve representatives, each representing one of the twelve Hauraki iwi. The application before the Court is made by four elected representatives of the Board ("the elected reps") who challenge the decision of the Board to seek and obtain: a) Recognition as a joint mandated iwi organisation ("JMIO") by Te Ohu Kaimoana Trustee Limited ("Te Ohu"); b) Recognition of the following constitutions under the Maori Fisheries Act 2004 ("MFA"): i) Pare Hauraki Fishing Trust Deed ("FTD"); and ii) Pare Hauraki Asset Holdings Limited. [3] The elected reps claim that the Board did not comply with sections 14 and 17 of the MFA. Te Ohu was joined to the proceedings as an interested party by minute dated 23 November [4] The Board and the elected reps agreed to enter a mediation process. As part of the process the parties are seeking a non-binding ruling from the Maori Land Court pursuant to section 182(2)(b) as to whether the draft FTD was ratified in accordance with the MFA. [5J The matter was set down for hearing on 6 December The timeframe for filing of evidence and a statement of issues was compressed into two weeks in DAVID TAl PARI, WILLIAM PETERS, PARI TUPUHlAND JOHNTAMIHERE V HAURAK~

4 114 Hauraki MB 37 order that the hearing could take place as soon as possible. Affidavits were filed and it was agreed that deponents would not be cross-examined so that hearing time was devoted to the legal submissions of the parties. Counsel for the elected reps produced a statement of issues in order to focus the hearing on those matters at issue between the parties. [6] At completion of the hearing it was agreed that Counsel for each of the parties would provide written closing submissions. The Court received the Board's closing submissions on 24 December The submissions for the elected reps were received by the Court on 22 February 2008 after the minutes of the hearing were distributed to the parties. The Court did not receive written closing submissions from Te Ohu. Facts [7] The Board undertook a series of eight consultation hui with Hauraki iwi to explain the process for becoming a JMIO and for ratification of the constitutional documents. The consultation hui took place in May 2006 and culminated in a report back hui to advise iwi of the results of consultation and steps forward in the process on 3 June [8] By letter dated 2 May 2006 Ms J Anderson, the Board's CEO, sent a package of documentation to the iwi of Hauraki as part of the Board's process for seeking recognition from Te Ohu as the JMIO for the iwi of Hauraki. The documents stated: "It is the Trust Deed that the Trust Board will ultimately be presenting to iwi members for ratification by way of a hui and postal vote." "The postal vote to make a decision on the Trust Deed will open on the 9th June 2006 and will run until the 7th July 2006 which will be complimented (sic) by a ratification hui on the 24th June 2006." [9] It is common ground between the parties that at the Board consultation hui held on 6 May 2006 the Deputy Chair of the Board confirmed that 75% or more approval of the draft Trust Deed would be separately required for the postal ballot and the ratification hui votes. At a Board meeting on 1 June 2006 Ms Anderson also A/I~ DAVID TAIP ARI, WILLIAM PETERS, P AHI TUPUHI AND JOHN T AMrHERE V HAU~ M:O~I I

5 114 Hauraki MB 38 confirmed that 75% approval would be required in both votes. I note that Ms Anderson had obtained a legal opinion dated 23 May 2006 which advised that a ratification hui was not strictly required by the MFA as part of the ratification process. A copy of the opinion was not given to the elected reps or the iwi of Hauraki either prior to or at the ratification hui on 8 July [10] Mr Taipari, for the elected reps gave evidence that he passed on the information that a 75% vote in favour was required in both the postal vote and hui vote to many tangata whenua at meetings of the Ngati Maru Runanga, the Marutuahu Whanui and his own whanau. That information was passed on further by people attending these hui. [11] On 3 June 2006 the Board held a report back hui at Thames War Memorial Civic Centre. At the hui a PowerPoint slide presentation gave the information that the ratification hui would be on 8 July 2006 and that that vote would be by show of hands. The only criteria were that voters must whakapapa to one or more ofhauraki iwi, and be 18 years and over. No proxies were to be allowed. The postal vote was shown as commencing on 9 June 2006 with completion on 7 July To vote by post voters would need to be registered with the Board or be on the supplementary roll. [12] On 12 June 2006 the Board publicly notified that a special general meeting (ratification hui) would be held on Saturday 8 July The notice specified the voting regime for the hui as follows: "Voting at the special general meeting will be by show of hands unless a secret ballot is determined by the hui. All persons who whakapapa to Hauraki iwi and are 18 years or over may vote. No proxies or special votes will be accepted." [13] The notice also specified that the resolution to be voted on was whether the Trust Deed of the Pare Hauraki Fishing Trust should be adopted and whether the Hauraki Maori Trust Board should be ratified for the purposes of the MFA and the Maori Commercial Aquaculture Claim Settlement Act [14] The public notice also stated as follows: ~~ DAVID TAIP ARl, WILLIAM PETERS, PARI TUPUHI AND JOHN T AMIHERE V HAURAKI MAORI

6 114 Hauraki MB 39 "A postal ballot will also be held on this resolution. Voting forms will be sent... and must be returned by post no later than S.OOpm, Friday 7 July 2006 OR in person at the special general meeting." [15] On about 14 June 2006 the Board sent out a package of documents (via post) including a private notice for its 8 July 2006 ratification hui and an explanatory note. The explanatory note stated: "HOW YOU CAN PARTICIPATE To Participate: Cast your postal vote and return it by S.OOpm on 7 July 2006 or you can deliver your postal vote in person at the hui on 8 July Attend and vote at the decision making hui on 8 July 2006 at Paeroa." [16] A total of 5, 191 ballot forms were issued to registered adult members of the Hauraki iwi. (The combined notional population of the Hauraki iwi in Schedule 3 of the MFA identifies that there are 13,622 people of Hauraki descent). The Board's Tribal Register and Supplementary Roll have currently registered 7,852 persons of Hauraki descent. At the time of the fisheries ratification process the number on the register stood at 7,499. (Paragraph 18, J Anderson affidavit). [17] Ballot forms were not sent to those members on the register who were either under 18 or for whom the Board did not hold current addresses. The public notice of the ballot invited members of Hauraki iwi not registered with the Board to request a postal ballot form. The private notice included an explanatory note, the ballot form, a copy of the Board's strategic blueprint and notice of the 8 July 2006 hui. [18] The explanatory note pointed out that a full copy of the JMIO Trust Deed was available on the website or by request to the Board office. A freephone number was included together with a summary ofthe key elements of the Trust Deed. [19] A copy of the JMIO Trust Deed was available on the website from 12 June Additional notice of the ballot and the ratification process was provided to iwi DAVID TAIPARI, WILLIAM PETERS, PMIl TUPUHI AND JOHN TAMlllERE V H~~

7 114 Hauraki MB 40 members by written panui, and by phoning and texting beneficiaries during the voting period. [20] On 5 July 2006 a Board meeting was held at which Mr Taipari sought confirmation that 75% would be required in both the hui and postal ballot. Ms Anderson's affidavit confirms that she replied in the affirmative to that question. [21] The results of the postal ballot were declared by Tony Coombe of McPherson & Coombe, a Chartered Accounting firm who also acted as independent returning officer for the vote taken at the special general meeting on 8 July [22] The results of the postal ballot were provided by Mr Coombe on 13 July A return rate of 29.7% was confirmed with 89.3% of the valid votes received being in favour of ratification. Of the 1,540 total votes returned, 1,374 votes were in favour of the resolution, 135 votes were against and 31 votes were invalid. [23] A breakdown by iwi was also provided by the returning officer. Two iwi were 100% in favour, 8 were 90% plus in favour, one was 80% in favour and one iwi voted against ratification. 8 July Ratification Hui [24] The hui was held at the Paeroa War Memorial Hall. At that hui Ms Anderson confirmed that the hui voting process was in addition to the postal ballot. Ms Anderson also presented a PowerPoint slide at the hui which, consistent with the public notice, stated: "Hui Vote Show of hands unless otherwise detennined by hui: 18 years and over Must whakapapa to one or more of Hauraki iwi Open to challenge by others!fchanenged, vote will become special vote until verified." ~4~ DAVID TAIPARI, WILLIAM PETERS, PAHI TUPUHI AND JOHN TAMIHERE V HAURAKI ~~RI j

8 114 Hauraki MB 41 [25] Ms Anderson outlined the process for the hui vote. There was no formal identifier, such as a registration number, used for those who participated in the vote. No challenges were made at the hui and no other steps were taken to verify the entitlement of those present at the hui. [26] Ms Anderson also confirmed that the hui voting process was in addition to the postal ballot. Postal ballots received via post had to be postmarked no later than 5.00pm on 7 July 2007 to be valid or alternatively persons could deliver their votes at the hui by placing them in the ballot box provided. Any qualified voters who had misplaced the ballot form could also have their voting forms reissued and then cast a vote by placing it in the ballot box. [27] Ms Anderson advised the hui that the postal ballot was a legislative requirement and therefore the results of that vote would be crucial in determining recognition of the Board as the JMIO and for ratification of the Trust Deed. Ms Anderson also confirmed that a threshold of 75% was the Board's desired outcome for the hui. [28] When asked what the outcome would be if the 75% threshold test was not reached at the hui Ms Anderson stated that the results of the hui along with the postal ballot results would be taken back to the Board's next meeting in order for it to make decisions about what steps to take next, as this was not an outcome the Board had considered previously. [29] Mr Taipari stated that Ms Anderson's comments at this hui were the first time there was any indication to the iwi that the Board might seek recognition as a JMIO even if the vote at the hui did not reach the 75% threshold. [30] The people at the meeting then determined that a vote by show of hands should be taken. As the returning officer considered that the numbers looked even steps were then taken to put the yes and no voters into different rooms to enable a count to be taken. DAVID TAIPARJ, WILLIAM PETERS, P AHI TUPUHI AND JOHN T AMIHERE V HAURAKI MAORI TRUST BOARD MLC Al [30 April 2008] 114 Hauraki MB ~1!t~ J

9 114 Hauraki MB 42 [31] Those people who intended to vote in favour of the ratification were asked to stay in the main hall to be counted, and those voting against ratification were put into the kitchen wing. Mr Taipari's affidavit states that offence was caused to kaumatua and others who objected to being treated "like cattle". There was some dispute as to whether some "no" voters were locked out in the foyer but there was insufficient evidence to determine this one way or the other. [32] The result of the vote was as follows: Yes-119 No-118 Abstain -1 Clearly this did not represent a vote of75% in favour of the draft Trust Deed. Approach to Te Ohu for Recognition as JMIO and Trust Deed Ratification [33] On 19 July 2006 a Board meeting was held at Te Pai 0 Hauraki Marae. Ms Anderson gave oral advice as to the results of the postal ballot and ratification hui. The legal advisor to the Board also gave a PowerPoint presentation. The presentation sets out in side 6 the decisions the Board needed to make as follows: "Is the Board going to request that TOKM recognise it as the JMIO for Hauraki iwi? If not, what course will the Board follow? If so, does the Board approve the draft asset holding company constitution? What company name? How many directors? Any other issues to be addressed in constitution?" [34] Slide 7 of the presentation states as follows: "Should the Board seek TOKM recognition as JMIO?" Options: ~14~ DAVID T AlPAR!, WILLIAM PETERS, PAHI TUPUHI AND JOHN T AMIHERE V HAURAKI MAORI

10 114 Hauraki MB 43 Request that TOKM recognise the Board as the JMIO Rerun all or part of the ratification process Begin the JMIO mandating process again on the basis of some other option Do nothing All options carry litigation risk" [35] Slide 8 continues as follows: "Key information: Results of consultation Results of postal ballot (complied with MFA) Results of hui vote (not necessary to MFA) Legal proceedings threatened if Board proceeds Arguable case based on failure to secure 75% at hui Ultimately difficult to sustain - would it be unconscionable for the Board to proceed?" [36] Slide 9 states as follows: "Key considerations: What is in the best interests of all members of all iwi (NB: all members must act in the best interests of all beneficiaries not just own iwi) Don't weight votes but add together %? Unfair to proceed or, unfair to ignore the majority? Have the concerns of the 'no' vote already been considered and addressed?" [37] Mr Taipari's affidavit refers to the intense debate that took place at the meeting over the consequences of the failure to secure the necessary 75% ratification of the Trust Deed at the ratification hui given the previous repeated advice that such approval was a prerequisite for JMIO recognition of the Board. ~-r ~ DAVID TAIP ARI, WILLIAM PETERS, PARI TUPURI AND JOHN TAMIHERE V HAURAKI MAORI TRUST BOARD MLC A [30 April 2008] 114 Hauraki MB 34 75

11 114 Hauraki MB 44 [38] Mr Taipari also noted that the slide presentation was the first time the Board representatives were given an opinion that the ratification vote was not necessary to the MFA and could be combined with the postal ballot vote. [39] Resolutions were ultimately passed by a simple majority of the Board representatives that the Board seek recognition under the MFA as the JMIO for the iwi ofhauraki. Application to Te Ohu for Recognition [40] The Trust Board by letter dated 26 July 2006 requested Te Ohu to recognise the Board in its capacity as Trustee of the Pare Hauraki Fishing Trust as the Hauraki JMIO. The letter, a copy of which was attached in the affidavit of Tamarapa Lloyd, General Counsel for Te Ohu, set out the consultation process followed by the Board in 'seeking a mandate to bring the fisheries and aquaculture assets under the Maori Fisheries Act 2004 and Maori Commercial Aquaculture Settlement Claims Act 2004' back to Hauraki. The letter confirms that eight consultative hui were held within Hauraki, Wellington, Auckland and Hamilton. The public and private notices for the consultative hui, the hui presentation, hui- minutes and attendance schedules, the Fisheries Discussion Document and a schedule of written submissions received by the Board were attached to the letter. [41] Section 5 of the letter discusses the ratification by postal ballot. Section 6 of the letter refers to the ratification hui. Paragraph 6.1 of the letter states as follows: "6.1 Although the Maori Fisheries Act 2004 and Te Ohu Kaimoana did not require the Board to hold a ratification hui in conjunction with the postal ballot, the Board elected to do so because it was considered that hui provided an opportunity for decision making in accordance with our own internal processes." [42] In paragraph 6.2 of the letter it states as follows: "6.2 It was clearly stated at the hui (and previous hui) that the postal ballot was a requirement of the Maori Fisheries Act 2004 and Te Ohu Kaimoana and that the results of this would determine recognition ofthe Board as the JMIO and the Trust Deed." DAVID TAIPARl, WILLIAM PETERS, PAHI TUPUHlAND IOHNTAMIHERE V HAU~

12 114 Hauraki MB 45 [43] Paragraph 6.4 states as follows: "6.4 Voting at the hui was by show of hands, and was open to all members of Hauraki iwi over the age of 18. Consistent with previous Board practice at decision making hui, there was no formal identifier, i.e. a registration number, for those who participated in the vote, rather the onus was on individuals to act honestly and to the hui to publicly challenge any voter they did not believe met the criteria. No challenges were made at the hui and no other steps were taken to verify the entitlement ofthose present at the hui to vote." The results of the hui vote were reported as above. ( [44] In sections 7 and 8 the letter discusses factors influencing the 8 July 2006 hui. Paragraph 7.1 and following state: "7.1 The results of the hui did not meet the 75% support for the resolution that the Board had hoped to achieve. It is expected that this will be a key platform for opponents to refute ratification of the Trust Deed and the Board as the JMIO. These opponents are not new to the Board and first appeared when the Board embarked on its Treaty claim mandate process last year. 7.2 It was obvious that the opponents of the Board mobilised in an attempt to have the hui vote lost to the Board and it has to be noted that the hui environment on the day can best be described as 'hostile'. In the days leading up to the hui a roiling advertisement was placed on a local Pakeha radio station that not only said 'say no' at the 8 July 2006 hui but also publicly undermined the broader nation building kaupapa of the Board The weekend prior to the 8 July hui also saw the historic return of the Hauraki Treaty Claims Report by the Waitangi Tribunal in Paeroa. The report's messages in terms of a way forward were generally consistent to the messages advocated by the Board when it embarked on the Treaty claims mandate process last year and again, this is another factor likely to have caused concern to opponents. In addition to this, the decision as to who has the mandate to negotiate and settle the Hauraki Treaty claims is close and tensions are certainly rising as evidenced in our opponents latest strategy of using the media to highlight a 'perceived' rift amongst the Hauraki tribes. 7.4 Making Te Ohu aware of the context and environment within which Hauraki is operating at the moment was considered relevant to an understanding that a number of factors, many of which had nothing to do with fish, came into play at our 8 July hui. 7.5 On a positive note, despite not receiving the 75% sought by the Board and despite the best attempts by opponents on the day, the hui vote was won. DAVID TAIPARl, WlLUAM PETERS, PARI TUPUHI AND JOHN TAMIHERE V ~::::.,~

13 114 Hauraki MB On a simple reading of section 17(2)(a) of the Act, it would be legitimate to add together the results of the postal ballot and hui vote, giving a margin of 85.5% in favour of ratification. However because the hui vote was treated as a non-statutory internal process and therefore not conducted in such a way as to make it possible to accurately determine whether persons who voted were entitled to do so or whether persons voted both at the hui and by post vote (i.e. cast two votes), we do not believe that this would be a robust approach. 7.7 In our view, Te Ohu is fairly limited in how it can have regard for the hui vote other than to recognise that it reflected an internal process for Hauraki iwi that the Board chose, rightly or wrongly to adopt. Having said that Te Ohu, like the Board, will weigh up all the information, including the results of the postal ballot and ratification hui, and make their decisions accordingly. 8.0 The Board's Considerations 8.1 In response to questions at the ratification hui, it was explained that the Board had not made any decisions as to what course it would follow if the resolution was not supported by 75% of the voters at the hui. It was explained however, that should this occur, then all information including the results of the postal ballot, would be referred back to the Board and they would need to consider this information and make a decision on the next steps to take. 8.2 These matters were considered by the Board when it met on 19 July While disappointed not to have reached the 75% benchmark it set up for the hui, it was the Board's view that it had a responsibility to take into account all the views of Hauraki iwi members and decided that the postal ballot ultimately represented a robust, fairer and more representative picture of the views of its iwi members and that it would not be right for the views of the significantly larger number of iwi members who took part in the postal vote to be vetoed by the smaller number who attended the Imi. 8.3 In coming to the above conclusions the Board were mindful of its overriding obligation as a Trust Board to act in the best interests of all its beneficiaries, which is consistent with the obligations the Board will inherit as a JMIO to act for the benefit of all iwi members, irrespective of where they reside. 8.4 It is also important to record that the concerns of those who did not wish the Board to become the JMIO, which we have indicated are broader than just 'fish' have not been ignored. On the contrary, the Board has developed a strategic blueprint for the next six years with the key work stream in that plan being the creation of a new postsettlement governance entity (or entities) to take over from the Board, including its role as the JMIO. In our view, discussions about the shape and role of a new entity for Hauraki should be - and will be - conducted in this context, with everyone agreeing that the Board will come to the end of its useful life by The Board therefore recorded its reasons for resolving to seek recognition as the JMIO for Hauraki iwi as follows: ~1M-J-v DAVID T AlP ARI, WILLIAM PETERS, P AHI TUPUHI AND JOHN T AMIHERE V HAURAKI MAORI d

14 114 Hauraki MB 47 (a) (b) That it is believed that this is in the best interests of all; and The majority of votes cast [in the ratification process]; and ( c) The other processes that exist to consider and address concerns raised." [45] In dealing with such a request for recognition, Te Ohu staff prepared reports to the Chief Executive of Te Ohu regarding the relevant legal requirements for the Hauraki JMIO. In regard to this matter the relevant report is that of Te Ohu's Manager Asset Allocation and Transfer regarding the ratification of the Hauraki JMIO. [46] In paragraph 8 and 9 the report deals with the 75% ratification requirement. It states as follows: "8. Section 17(2) requires that the constitutional documents of the MIO are ratified by not less than 75% of adult members of the iwi who vote either at a general meeting called for the purpose of ratifying the constitutional documents or by postal ballot. Section 17(2) provides the MID with the option of either holding a general meeting and postal ballot or a postal ballot only to ratify the constitutional documents. Evidence Received 9. The Trust Board elected to hold a ratification hui in conjunction with a postal ballot to adopt the Pare Hauraki Fishing Trust Deed and ratify the Trust Board as the MID under the Act." [47] In paragraphs of the report the ratification hui is discussed using virtually the same wording as that set out in the Board's letter. It is a clear indication that the Board's reasoning was adopted by the reporter. For instance at paragraph 16 ofthe report it states: "However, because the hui vote was treated as a non-statutory internal process and not conducted in a way to make it possible to accurately determine whether persons who voted were in fact entitled to do so, or whether persons voted both at the hui or by postal ballot (i.e. cast two votes), this approach is not considered robust. For our purposes the hui vote should be regarded as an internal process for the Trust Board and not counted as part of the ratification vote under section 17 of the Act." (emphasis added). ~4~ DAVID TAIP ARI, WILLIAM PETERS, PARI TUPUHI AND JOHN T AMIHERE V HAURAKI MAORI

15 114 Hauraki MB 48 [48] And again at paragraph 18 of the report it states: "Pursuant to section 17(2)(a) of the Act it would be legitimate to add together the results of the postal ballot and hui vote, giving a margin of 85.5% in favour of ratification... " (emphasis added). [49] The final outcome in the report was set out at paragraph 21 as follows: "We consider that the ratification process followed by the Trust Board satisfies the requirements of section 17 and kaupapa 4(2)(a) and 4(2)(b) of Schedule 7 of the Act." [50] The Board of Te Ohu resolved on 1 August 2006 that the Hauraki Maori Trust Board in its capacity as Trustee of the Pare Hauraki Fishing Trust be recognised as the JMIO for Hauraki. [51] Mr Lloyd also provided a table showing that the return of postal ballots in the Hauraki ratification ballot was 20.7% and compared favourably to other return rates for ratification ballots undertaken by other iwi. Statement of Issues [52] As indicated above, Counsel for the elected reps provided a statement of issues ("SOl") to give focus to the hearing. The statement of issues is set out below: STATEMENT OF ISSUES 1. In seeking recognition as a Joint Mandated Iwi Organisation ("JMIO") for the iwi of Hauraki ("I wi"), was the Hauraki Maori Trust Board ("HMTB") required to meet the criteria in section 14 of the Maori Fisheries Act ("MFA")? 2. Under section 14, was the proposed constitutional document of the HMTB fisheries governance entity ("Fish Constitution") required to comply with section 17 of the MFA? 3. Did the Fish Constitution require HMTB to seek its ratification by, at least, a general meeting called for the purposes of adopting the constitution? 4. If so, did section 17(2)(b) empower HMTB to also seek ratification of the Fish Constitution by a postal ballot? 5. Did HMTB elect to seek ratification of the Fish Constitution by the adult members of the iwi of Hauraki: ~ DAVID T AlP ARl, WILLIAM PETERS, P AHI TUPUHI AND JOHN TAMIHERE V HAURAKl~. J

16 114 Hauraki MB 49 (a) (b) In person at a general meeting in accordance with section 17(2)(b)(i)(A) ("Ratification Hui"); and By postal ballot in accordance with section 17(2)(b )(i)(b)? 6. Did HMTB vary or suspend the terms of the Fish Constitution to the extent that the voting provisions for the general (ratification) meeting were replaced or superseded by the voting process detailed in the notice for the Ratification Hui? 7. Is HMTB estopped from asserting it did not elect to require the Fish Constitution to be ratified in accordance with both section 17(2)(b )(i)(a) and 17(2)(b )(i)(b) because: (a) (b) HMTB by words and conduct made a clear and unequivocal assurance to some or all of the iwi of Hauraki that it would require ratification of the Fish Constitution via both a Ratification Hui and postal ballot at which ~75% approval was required for each vote; Some of the iwi of Hauraki have taken HMTB at its word and acted on that assurance; and ( c) To allow HMTB to dishonour its assurance would be adverse to the position of those who relied on it. 8. If HMTB did make an election to require ratification of the Fish Constitution in accordance with both sections 17(2)(b)(i)(A) and 17(2)(b )(i)(b), does the MFA allow the votes from each separate process to be aggregated to meet the respective 75% thresholds? 9. If the Fish Constitution was not ratified in accordance with section 17(2)(b), does it have any effect under the MFA? Submissions for the Elected Reps [53] Counsel for the elected reps submitted that it was common ground that the answer to questions 1,2 and 4 of the SOl is 'yes'. There was no dispute in relation to question 3, as the draft Trust Deed does require the Board to seek its ratification by a general meeting called for the purpose of adopting constitution. Nor is there any dispute that the Board chose to seek ratification of the draft Trust Deed by holding a general meeting in accordance with section 17(2)(b)(i)(A) of the MFA; and by postal ballot in accordance with section 17(2)(b)(i)(B) of the MFA. Moreover the Board gave public assurances to the iwi of Hauraki the hui vote would need to reach 75% approval. It is irrelevant what the Board personnel did or did not contemplate in making such assurances. Moreover Counsel for the elected reps argued that the ~~~ DAVID TAIP ARl, WILLIAM PETERS, P AHI TUPUHI AND JOHN T AMIHERE V HAURAKI MAORI

17 114 Hauraki MB 50 Board's contention that the ratification hui vote was a mere 'internal process' was never disclosed to the iwi of Hauraki prior to the ratification hui, and seems inconsistent with the Board's use of professional scrutineers to attend the hui, count votes and release the vote results. It is also inconsistent with Slide 5 of the Board's PowerPoint display which said that those voting at the hui were open to challenge by others. [54] Counsel for the elected reps submitted that Mr Renata's evidence for the Board was closer to the truth: "10....the Board also wanted to have a hui because that was how we traditionally made important decisions. This is because kanohi ki te kanohi is important to us. We also know that our people liked having both a postal ballot and hui vote..." [55] The elected reps went on to argue that the Board did not effectively withdraw its 75% assurances at the ratification hui. The Board failed to achieve the 75% approval rate for the draft Trust Deed at the hui, and therefore should be bound by its word. Weight must be given to the fact that the people of the iwi of Hauraki travelled to the ratification hui at their own cost and elected to vote only at the ratification hui in reliance on the Board's assurances. [56] Counsel for the elected reps agreed that the ratification hui vote did not have to comply with the draft Trust Deed because the terms of the draft Trust Deed were not fixed or final at the time of the hui. The Board also stipulated the rules for voting at the ratification hui in its public notice of 12 June As the Board was not bound by the terms of the draft Trust Deed as to its requirements for a general meeting the elected reps' view is that the rules for voting as set out in the public notice ought to apply and be binding on the Board. [57] The MFA does not require that the ratification hui voting follow the draft Trust Deed, nor is there anything in sections 14 or 17 of the MFA which would make the voting at the ratification hui ultra vires the MFA. ~1kt_. DAVID TAIP ARI, WILLIAM PETERS, P AHI TUPUHI AND JOHN T AMIHERE V HAURAKI MAORI ~, j

18 114 Hauraki MB 51 [58] The Board complied with the rules contained in Clause 2 of Schedule 7 - Kaupapa 2 of the MFA, but there is nothing in Clause 2 which puts the method of voting in person ultra vires the MFA. [59] Counsel for the elected reps submitted that the Board was estopped from asserting that it did not elect to require the draft Trust Deed to be ratified in accordance with both sections 17(2)(b )(i)(a) and 17(2)(b )(i)(b). Counsel relied on the statement of the elements of estoppel set out in Burbury Mortgage Finance [1989] 1 NZLR 356. Counsel submitted that the Board: a) Gave assurances to the iwi of Hauraki that 75% approval of the draft Trust Deed would separately be required for both the postal ballot and ratification hui votes. b) Those assurances were intended to affect the legal relationship between the Board and the iwi of Hauraki because the Board: i) Publicly committed itself to attain such levels of approval as a necessary part of the ratification process; and ii) If successful, the Board would (on meeting all remaining MFA requirements) receive legal ownership of the fisheries assets (beneficially owned by the 'iwi ofhauraki'). c) The Board intended that such assurance be acted upon by the iwi of Hauraki because those assurances were given at public hui and the publicly notified ratification hui was duly held in accordance with those public and private notices. d) People of the iwi of Hauraki acted in reliance on the Board assurances by only casting a vote at the ratification hui. e) The Board did not withdraw its assurances at the ratification hui or give the people of the iwi of Hauraki any opportunity of resuming their position. In this respect the advice given at the ratification hui DAVID TAlPARI, WILLIAM PETERS, PAHI TUPUHI AND JOHN TAMIHERE V HAURAKI MAOI1~ ~~, d

19 114 Hauraki MB 52 that people could still lodge a postal ballot and that the postal ballot was crucial to ratification was insufficient and given too late to notify the people. Moreover the Board did not advise people casting a vote by the show of hands process that their hui vote would be discounted. f) There is a pre-existing legal relationship between the Board and the iwi of Hauraki as the Board is a recognised iwi organisation under the MFA. The Board was attempting to establish a legal relationship in the future by becoming a JMIO. The Board assurances were an integral part of that process to be recognised as a JMIO which would result in the Board receiving the legal ownership of the fisheries assets. g) Finally, the Board and the iwi of Hauraki have a clear common interest in who ultimately becomes the lawfully recognised JMIO for the fisheries assets of the iwi Hauraki. [60] Counsel agreed that the people of the iwi of Hauraki who relied on the Board's assurances that it was required to achieve a 75% approval of the draft Trust Deed at the ratification hui, relied on that to their detriment. People who elected not to cast a postal ballot in favour of voting at the ratification hui were not advised that the 75% assurances were withdrawn, nor that their ratification vote would be discounted. They attended the hui at their own cost and their hui vote was discounted by the Board. [61] The ratification hui vote was discounted because the Board on 19 July 2006 decided that the ratification hui and its vote result was a mere internal process and not a formal part of the Board's ratification process under the MFA. At best the Board converted the hui votes into postal ballot votes - they were not treated as votes cast in a separate hui ratification process. [62] Finally, the elected reps argued that those voting at the hui were prevented from exercising a fundamental right recognised in a Treaty settlement statute - the right to have their say on their Treaty assets according to the rules laid down by, the DAVID TAIPARI, WILLIAM PETERS, PAHI TUPUHI AND JOHN TAMIHERE V HAURAKI MAORI

20 114 Hauraki MB 53 group bidding for the JMIO recognition under the MFA. The Board ought to have maintained its position that the ratification hui was a separate ratification process for which 75% approval was required. Moreover the Board decision on 19 July 2006 was taken by five individuals - the ratification hui and the votes whether "yes" or "no" should not be cast aside on the basis of that decision. [63] In respect of question 8 of the SOl the elected reps contend that if the Court determines that estoppel has been established against the Board, the Board is prevented from aggregating the two sets of ratification votes because of its assurance that a 75% approval rate of the draft Trust Deed would be separately required for each vote. If, on the other hand the hui vote is determined to be invalid for failing to comply with the requirements of the draft Trust Deed or the MFA then again aggregation of the results of the two votes cannot take place. [64] Furthermore, the MFA does not permit aggregation on the basis of the ordinary principles of statutory interpretation and in light of the principles of the Treaty of Waitangi. The plain reading of section 17(2) of the MFA means that the intent is that a 75% approval rate be obtained by those who vote in person at a general meeting or through a postal ballot. The 75% approval requirement is of fundamental importance in the legislation. If Parliament had intended that groups could run both ratification processes in order to aggregate votes to achieve 75% approval, it would have said so, but it did not. The 'or' in section 17(2) of the MFA operates conjunctively to require each vote to meet the 75% threshold. [65] Counsel for the elected reps also referred to the Preamble and Purposes of the MFA and submitted that these provisions underscore the importance placed by Parliament on the requirements of the allocation framework being met prior to individual iwi allocation taking place. Reading the statute to require a 75% approval rate at both a ratification hui and through a postal ballot would be in accordance with the Preamble and Purposes section. [66] Counsel for the elected reps found support for this reading of the statute in the legislative history of the MFA. The original Bill draft by the Treaty ofwaitangi Fisheries Commissions (the Maori Fisheries Development Bill) had an approval DAVID TAl PARI, WILLIAM PETERS, PAHI TUPUHI AND JOHN TAMIHERE V HAU~-tA{,~

21 114 Hauraki MB 54 threshold for the MIO of a simple majority of more than 50%. The first reading also contained a simple majority threshold for MIO approval. The reported back version of the Bill as recommended in the report of the Fisheries and Other Sea Related Legislation Committee, proposed an amendment to provide for the special majority for MIO approval. Parliament chose to enact the special majority provision, thus underlining its importance in the legislative scheme. [67] The elected reps argued that the MFA was to be interpreted in a manner consistent with the principles of the Treaty of Waitangi. The Treaty principles require that parties act reasonably, honourably and in good faith. The MFA ought also to provide active protection of the interests and rights of the iwi ofhauraki. [68] For all these reasons the answer to question 8 of the SOl is, in the view of the elected reps, 'no'. [69] In respect of question 9 of the SOl the elected reps considered that the draft Trust Deed was not ratified in accordance with section 17(2)(b) of the MFA and therefore has no effect. Nor could it be argued that the Board had somehow complied with the "spirit" of the MFA, given the non-compliance with the statutory reglme. [70] Finally the elected reps submitted that the MFA, as a Treaty of Waitangi settlement statute which extinguished all Maori claims to commercial fisheries, ought to be enforced in such a way as to ensure that the ultimate distribution of the fisheries settlement assets has followed due process. If the Board has not done so then that needs to be recognised and the matter addressed via mediation. Submissions for the Hauraki Maori Trust Board [71] In its closing submissions the Trust Board firstly dealt with some factual issues and then the legal issues raised by the SOL DAVID TAIPARI, WILLIAM PETERS, PARI TIlPUHI AND JOHN TAMIHERE V HA-:':::'~

22 114 Hauraki MB 55 Factual Issues [72] The Board submitted that, contrary to the impression the Court may have received from the number of affidavits filed on the applicants' behalf, there is no substantial backing among Hauraki iwi for the position adopted by the elected reps. The voting in the ratification process together with the iwi engagement of the Board and the Board's earlier strategic and mandating processes show that there is no significant opposition to the Board within Hauraki iwi. [73] The Board understood that ratification by 75% of iwi members taking part in a postal ballot was a legal prerequisite to obtaining recognition as the JMIO for Hauraki iwi. However, the Board felt it was important to hold a hui as part of the process because "traditionally that was how Hauraki iwi made decisions" (paragraph 14 of closing submissions). A ratification hui conducted in accordance with the Act and equivalent provisions of the Trust Deed would have involved a ballot vote, not the "show of hands" vote "that Hauraki people would expect to take part in" (paragraph 14 of closing submissions). The Board understood that the ballot vote was "crucial" to ratification but the vote by show of hands to be held at the hui was important to its own mandate. [74] The Board considered that the two types of vote had different standing as shown by the voting procedures adopted - the hui vote was much less fonnal and relied on an honesty system to check who was eligible to vote. [75] The Board accepted that the status of the show of hands vote was never satisfactorily defined and that there was a lack of clarity in the Board's mind regarding the nature and process of the hui vote. Examples of this lack of clarity are shown by the presentation to the Board on 26 April 2006 which described the vote at that ratification hui as being by "show of hands/simple majority". The change in the majority to 75% was in response to questions from the applicants or their representatives and was not evidence of a considered decision to change the majority. A/~ - ~~~_- tf DAVID TAIPARI, WILLIAM PETERS, PAHI TUPUHI AND JOHN TAMIHERE V HAURAKI MAORI TRUST BOARD MLC A [30 Apri12008] 114 Hauraki MB 34-75

23 114 Hauraki MB 56 [76] The discussion document distributed to iwi members on 2 May 2006 describes the ratification hui as being complementary to the postal ballot. In fact the separate voting system that evolved was not complementary but had the potential to put the two processes in conflict, (paragraph 17 of Board's closing submissions). The Board's annual plan for July 2006 to June 2007, although adopted in September 2006, was drafted in the midst of the JMIO ratification process and refers to the ratification through postal ballot "in addition to an indicative ratification hui scheduled for 8 July 2006". [77] The Board did not contemplate that there might be a difference in the results of the two votes, and consequently no advice was sought or offered on that possibility at the time the ratification process was put in motion. [78] The possibility of a split vote was first put to the Board at the ratification hui before either of the vote results were known. The response given by the CEO of the Board was a genuine attempt to deal with a situation the Board had not foreseen. While failure to foresee the possibility of a split vote may seem naive in retrospect, the only experience the Board had of running a combination postal ballotlhui process was its Treaty claims mandating exercise which resulted in positive votes of over 85%. [79] The Board adopted the statutorily required ballot and the show of hands vote as a genuine attempt to reconcile the legal requirement with the traditional way in which Hauraki iwi made decisions. In this the Board went further than it was legally required to do by the MFA. [80] As the Board had not formed a clear view as to what would happen in the case of a split vote prior to the closing of the processes on 8 July 2006, it was not able to provide iwi members with clear advice on what it would do if the votes were split. Thus the Board did not change its position in regard to the binding nature of the ratification hui because it had never made a decision as to what would occur if there was a split vote. The Board did not set out to mislead Hauraki iwi.. DAVID TAlPAR~ WILLIAM PIITERS, PAID TUPUHI AND JOHN TAMIHERE V HAUR:;;::~ TRUST BOARD MLC A [30 Apri12008] 114 Hauraki MB 34-75

24 114 Hauraki MB 57 [81] On 17 July 2006 the Board was advised that there was 89.3% support for ratification in the postal ballot. On 18 July 2006 the Board received legal advice that it was legally entitled to seek recognition as a JMIO. The Board's decision of 19 July 2006 was to keep faith with the whole ratification process. It was not the Board's intention to set up a system whereby the hui vote could override the postal ballot when the postal ballot received ten times as many votes. [82] The hui vote was not discounted, but rather the Board put it in context with the rest of the process and weighed all of the indications as to the views of the iwi members appropriately. [83] The Board also was required, in the context of the MFA, to act in the best interests of all iwi members "irrespective of where they reside" (section 12(1)(a». Legal Issues [84] The Board submitted that it had not varied the terms of the Trust Deed or suspended its terms with regard to the voting procedure adopted at the ratification hui. The Board was relying on the ballot vote for ratification, while the hui was adopted as a separate internal indicative or complementary process which did not have to comply with the Trust Deed. [85] Where a hui is held for ratification purposes those votes must be added to the votes sent through the post provided that the hui votes are made in compliance with the Act. The requirement that the 75% threshold has to be reached for both processes is untenable. The "or" in section 17(2)(b )(i) of the Act would have to be read as an "and". Parliament would not have intended to set up a voting process whereby one form of voting could cancel out another. Tower New Zealand Limited v Mercury Energy Limited [1997] 2 NZLR 669 is an example of where the word "or" in a statute must be read as "and". However that was an extreme case where it was clear from the scheme and purpose of the legislation that such a reading was necessary to make the Act work as it was intended to do. That is not the situation in respect of section 17(2)(b) of the MFA. The section makes sense with "or" in it. DAVID TAIPARI, WILLIAM PETERS, PAHI TUPUHI AND JOHN TAMIHERE V HAU~..

25 114 Hauraki MB 58 Estoppel [86] The law is clear that the fundamental elements of estoppel are: a) That there must be a detrimental reliance; b) On a representation; c) To the extent that it would be unconscionable to allow the maker of the statement to resile from it: chapter 16 from "Equity and Trusts in New Zealand" and to the case Commonwealth of Australia v Verwayen [1990] 170 CLR 394 (HC of A). [87] While the elected reps relied on the case Burbury Mortgage Finance, that factual situation was a classic case of detrimental reliance. In the present situation the reliance would need to be on the narrow representation that the Board sought a 75% majority at the ratification hui. [88] While participants in the hui would have incurred travel expenses this cannot form the basis of an estoppel argument as all the attendees at the hui would have incurred travel expenses whether they were in support or in opposition to the resolution. The show of hands vote was taken into account but was put alongside the ballot vote and other parts of the process when the Board made its decision on 19 July. The travel expenses were therefore not wasted expenditure. Nor can the travel expenses be considered sufficient detriment to justify setting aside the entire ratification process. There are costs to all members of Hauraki iwi in delaying receipt of settlement assets, as there would be in re-running the ratification process. These costs greatly outweigh the detriment. [89] The elected reps say that some people chose not to cast a postal ballot, intending to attend the hui, but then being unable to do so. Those people have lost the opportunity to vote. However, the Board submits that this could have affected the "yes" voters as well as the "no" voters so that it is a neutral situation in terms of detriment. Furthermore, there is no reason to assume that the votes of such people DAVID TAIPARI, WILLIAM PETERS, PAHr TUPUHI AND JOHN TAMIHERE V HAU~~