Tamihere v Minister for Treaty of Waitangi Negotiations

[2018] NZHC 1955

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-1657

[2018] NZHC 1955

UNDER

the Treat of Waitangi Act 1975

BETWEEN

JOHN HENRY TAMIHERE

First plaintiff

TE RUNANGA O NGĀTI POROU KI HAURAKI IWI

Second Plaintiff

AND

MINISTER FOR TREATY OF WAITANGI NEGOTIATIONS

Defendant

Hearing:

1 August 2018

Appearances:

E Telle for the Planitiffs

J Gough for the Defendant

Judgment:

1 August 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 1 August 2018 at 5.30pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Neilsons Lawyers Limited, Auckland (Plaintiffs) Crown Law, Wellington (Defendant)

TAMIHERE v MINISTER FOR TREATY OF WAITANGI NEGOTIATIONS [2018] NZHC 1955
[1 August 2018]

[1]    The plaintiffs bring without notice an urgent interlocutory application for interim injunctive relief, to prohibit the Minister for Treaty of Waitangi Negotiations from signing the Pare Hauraki Collective Redress Deed tomorrow, 2 August 2018. The second plaintiff’s iwi was previously part of the Collective, but broke away. The plaintiffs only found out about the intended signing on 31 July 2018.

[2]    The plaintiffs’ underlying claim to this Court seeks declarations their claim – presumably, to the Waitangi Tribunal – is well founded, and the Crown’s settlement policies and practices breach te Tiriti and are causing prejudice to them.

[3]    Notice of the interlocutory application was given to the Crown on a Pickwick basis, on which the Crown noted unavailability of injunctive relief against the Crown.1 At this afternoon’s urgently convened telephone conference, recognising the correctness of the Crown position, counsel for the plaintiffs, Edwin Telle, sought orally to amend the application to one for an interim “order declaratory of the rights of the parties”.2

[4]    Alternatively, he suggested an interim order declaring the plaintiffs are “entitled as against the Crown” to the land.3 I disregard that alternative, which is only available in “proceedings against the Crown for the recovery of land or other property”, which the plaintiffs’ proceeding is not in itself. Mr Telle’s reference to the alternative is likely to be borne of the urgency in which he has had to address the plaintiffs’ concerns.

[5]    Mr Telle was similarly unable to assist me in articulating what of the plaintiffs’ rights would be affected by execution of the Deed. He refers me to the first plaintiff’s affidavit in support of the interlocutory application.

[6]    The first plaintiff is John Tamihere, lead negotiator for the second plaintiff. Mr Tamihere says the claim to the Waitangi Tribunal raises concerns given rise if the Deed was signed. He says, if signed, the second plaintiff “will be seriously prejudiced in a

1      Crown Proceedings Act 1950, s 17(1)(a).

2      Section 17(1)(a).

3      Section 17(1)(b).

number of ways”. The prejudice appears to be the plaintiffs’ claims the Crown’s approach to the settlement process is “undermining their mana whenua, manu moana, rangatiratanga and tikanga” in various articulated ways.

[7]    However, doubtless driven by the urgency of the application, that articulation is made by annexing various filings in the plaintiffs’ Waitangi Tribunal claim. There, Mr Tamihere notes the critical prejudice is that to be contained in subsequent “settlement legislation [preventing the plaintiffs] from seeking resumption of Crown forests and properties within their rohe whether they are party to the settlement or not”.

[8]    Crown counsel, Jason Gough, says nothing in the plaintiffs’ rights is affected by signing of the Deed tomorrow, for which organisation has been made affecting third parties. He points me to various cases generally as standing for the principle the Court will not intervene in circumstances where results are dependent on the passage of legislation.

[9]    While that may be a crude summary of Mr Gough’s submission, certainly the declaratory relief now sought would seem to fall outside the permissible ambit. I note in particular the Court of Appeal’s very direct explanation declaratory relief is not available in such circumstances: “[t]his is territory that the courts will not enter in accordance with the principle of non-interference.”4

[10]   Because I cannot identify any right on which I might legitimately make declarations, I dismiss the plaintiffs’ application.

—Jagose J

4      See the discussion under the heading ‘justiciability and comity’ in Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 554 starting at [85] (citing Te Runanga o Wharekauri Rekohu Inc v Attorney General (Sealord) [1993] 2 NZLR 301 at 307-309; Milroy v Attorney-General  [2005] NZAR 562 at [11]-[17]; and New Zealand Maori Council v Attorney-General [2007] NZCA 269 at [60]), and note especially [105]-[107].