Indigenous Peoples and the Law: Article: Iwi claims within the Ngai Tahu rohe

Article: Iwi claims within the Ngai Tahu rohe

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5 July 2000 at 10:12:55

Ngati Apa Ki Te Waipounamu Trust v R & Maori Appellate Court & Te Runanga O Ngai Tahu
CA154/99. Court of Appeal. 8 May 2000. Elias, Gault, Keith, Blanchard, Tipping JJ
Ngati Apa claimed on several grounds that a decision of the Maori Appellate Court that they had no customary interests in certain lands in the South Island. In these proceedings, the Court of Appeal was asked to reconsider a High Court decision to struck out the claims (for the High Court decision see Maori LR August 1999 p3). Rangitane interests had previously applied for judicial review of the MAC decision, and that claim had been dismissed (Sadd & Te Runanga A Rangitane v Waitangi Tribunal, see Maori LR June 1994 p3). Ngati Apa was concerned that, if the MAC decision stood, it would prevent the Waitangi Tribunal from investigating their claims to some South Island lands. The relief sought was orders setting aside the decision of the MAC and a declaration that the Waitangi Tribunal could hear the Ngati Apa claims.
Background
In 1860 the Crown acquired 7 million acres of land on the West Coast of the South Island by the Arahura Purchase. Ngati Apa were signatories to the deed of purchase and received some purchase money, although the majority went to Ngai Tahu.
Ngati Apa brought a claim to the Waitangi Tribunal concerning a small part of the area covered by the Arahura purchase, and also part of an area covered by another deed, the Kaikoura purchase of 1859. They did not claim an exclusive interest in these lands in customary terms.
During hearings of the Ngai Tahu claims, the Waitangi Tribunal became aware of overlapping claims by other tribes and sought a decision on tribal boundaries under s6A Treaty of Waitangi Act 1975.
In November 1990 the Maori Appellate Court ruled that in 1860 Ngai Tahu had sole ownership according to customary law principles of take and occupation or use of all the land in the Arahura and Kaikoura purchases.
The appellant, the Ngati Apa trust, had not been a party to that hearing. A body known as Te Runanganui O Te Tau Ihu O Te Waka A Maui Inc purported to represent Ngai Apa interests among others, but the Ngati Apa trust claimed that no formal mandate had been given to that body. The focus of that hearing was whether groups other than Ngati Apa (Ngati Rarua, Ngati Tama, Te Atiawa) had gained rights in the purchase areas by virtue of tribal invasions in the 1830s. Ngati Apa interests were mentioned, but the MAC found that any interests in Arahura amounted to no more than a right of residence granted by Ngai Tahu.
In 1991 the Waitangi Tribunal reported favourably on the Ngati Tahu claims, including claims about Crown breaches in respect of the Arahura and Kaikoura purchases.
Following a further report from the Waitangi Tribunal (in September 1991) on the need for some statutory basis for tribal representation for Ngai Tahu, the Te Runanga O Ngai Tahu Act 1996 was enacted. It constituted a Ngai Tahu authority for settlement purposes with authority over the takiwa (district or region) of Ngai Tahu according to the boundaries determined by the MAC.
Subsequently, the Ngai Tahu Claims Settlement Act 1998 gave effect to a deed of settlement between Ngai Tahu and Crown signed in November 1997.
The High Court had accepted that the 1996 and 1998 Acts did not explicitly exclude the claims of other iwi within the takiwa of Ngai Tahu, but did find that the two Acts implicitly excluded such claims as they were based on the understanding that Ngai Tahu claims were exclusive over their takiwa and claims by other tribes were non-existent for the decision of the MAC.
Held: the claims of Ngati Apa should be in part struck out and in part retained. The Court of Appeal issued a split decision.
Judgment of Elias J
The strict matter to be determined in this appeal against the decision to strike out the claims was whether the 1996 and 1998 Acts effectively prevented any challenge by way of judicial review of the decision of the MAC. The court was not here examining the merits of that challenge or whether, if the 1996 and 1998 Acts had no impact on the Waitangi Tribunal, the tribunal would be bound by the MAC decision as to boundaries (something Elias J thought was a doubtful proposition).
Even if the High Court was correct that the 1996 and 1998 Acts had the effect argued for, and claims relying on entitlement to land within the takiwa of Ngai Tahu were barred by statute, the Court of Appeal could not speculate on what claims of Ngati Apa might still survive. The nature and extent of surviving claims would depend upon Treaty promises and the Waitangi Tribunal had exclusive authority to determine such matters (s5(2) Treaty of Waitangi Act 1975).
On preliminary issues, the proceedings should not be struck out because they were attempting to relitigate issues already determined by the High Court in its decision on the Sadd case. Ngati Apa were not a party to those proceedings, which were brought by Rangitane and concerned that tribes distinct claims. Nor should they fail on the basis that all Ngati Apa claims were made in right of ownership in the lands concerned and that the MAC had found that Ngati Apa rights in the lands in question were at the behest of Ngai Tahu. The claims sought recognition of Ngati Apas mana in the lands and that would operate as a determination of the standing of Ngati Apa in the region and would affect not only its Waitangi Tribunal claim but also its standing in other matters of interest to the tribe on the West Coast.
The Te Runanga O Ngai Tahu Act 1996, which established a statutory entity to represent Ngai Tahu, provided that the takiwa of Ngai Tahu should be the area described in the 1991 boundaries decision of the MAC (s5/1996). Takiwa was not defined in the Act, but translated as district or region. The use of the word in preference to rohe seems to arise because of the way Ngai Tahu lived, travelling to far-flung parts of their tribal area to gather food and other resources on a seasonal basis, rather than maintaining permanent settlements throughout the area. Thus the Maori Appellate Courts decision contrasted Te Rauparahas cultivations and trading activities with the Europeans with the more nomadic lifestyle of other tribes whose territory may better be described as takiwa rather than rohe.
It was argued that the boundaries in the 1996 Act excluded any other tribal claim within them. However that was not the effect of the statute. The Act did not refer to other tribes at all. The fact that it was a private Act suggested it was to affect Ngai Tahu only. The identification of the takiwa in s5 was to address the need to give a geographical definition to the area over which Ngai Tahu might be affected, because the Act required consultation with Ngai Tahu when its interests were affected (s15).
Counsel for Ngai Tahu had accepted that theoretically 2 tribes could hold rangatiratanga in the same district. The case which the Waitangi Tribunal stated to the MAC contemplated that possibility for the South Island, when it asked whether more than one tribe might have ownership rights.
Consequently, the statutory recognition of the takiwa of Ngai Tahu was for the purposes of the 1996 Act only. It prevented anyone other than the runanga representing Ngai Tahu in that area, but did not prevent other tribes asserting interests in land within that area.
As to the Ngai Tahu Claims Settlement Act 1998, while Ngai Tahu asserted that the Act was inconsistent with the assertion of any interest in land by a tribe other than Ngai Tahu within the takiwa of Ngai Tahu, the Crown had submitted that the Act would not preclude claims to some interest less than ownership of land. Any remedy to another tribe of land within the takiwa was not however possible, because of the comprehensive arrangements in the legislation with regard to land.
Looking at the detail of the legislation, it did not exclude other tribal interests, in particular:
* The Short Title was the Ngai Tahu Claims Settlement Act referring to Ngai Tahu only.
* The Preamble, which mentioned the Arahura and Kaikoura purchases and the transfer of land from Ngai Tahu people to the Crown, did not purport to record that no other group had interests in those lands.
* The Crown apology (s6/1998) mentioned the failure to protect Ngai Tahu use and ownership of their land but gave no boundaries.

* The apology also recognised Ngai Tahu rangatiratanga and mana over lands their defined takiwa, but that did not necessarily exclude other tribes, as counsel for Ngai Tahu had conceded that rangatiratanga could be held by two tribes in the same district.
* The separate use of the terms use and ownership and mana and rangatiratanga in separate parts of the apology suggested that the Act did not treat those concepts as equivalent. Even if the mana and rangatiratanga over lands within the takiwa were intended to be exclusive to Ngai Tahu, use and ownership or occupation might not be, and might found a claim to the Waitangi Tribunal (occupation was the foundation of Ngati Apas claim).
* Ngai Tahu claims were specifically defined by the Act (s10/1998) and did not include claims of any other iwi, including the Ngati Apa claim (which was filed in 1995).
* In terms of the finality of the settlement, in particular ss461-462/1998 which provided that the settlement of the Ngai Tahu claims should be final and that the Waitangi Tribunal might not inquire into the Ngai Tahu claims or the 1998 Act, those provisions were limited to Ngai Tahu claims. It would have been easy for the legislation to have provided that no claim by any tribal group might be brought in respect of the breaches of the Treaty arising out of that tribes use or occupation or ownership of land within the takiwa of Ngai Tahu, if that had been intended. But that had not been done.
* It was not significant that Ngati Apa claims had not been specifically reserved under the 1998 Act, in the same way that Hauraki claims were reserved under the Waikato Raupatu Claims Settlement Act 1995. Had the Hauraki claims not been so reserved, they would have been explicitly included in the settlement of all claim brought by Waikato descendants of the Tainui waka which were settled by that 1995 Act. Exclusion was not necessary in this case because Ngati Apa claims did not fall within the Ngai Tahu claims.
* The 1998 Act did however give Ngai Tahu the first right of refusal over the disposal of all Crown land within the takiwa of Ngai Tahu. That would present an impediment to Ngati Apa receiving any reparations in terms of those Crown lands should their claim to the Waitangi Tribunal be successful. But that would not prevent Ngati Apa seeking reparation in terms of land which Ngai Tahu might not exercise its right of first refusal over, nor would it affect the potential range of remedies which might be available to Ngati Apa should their claim be upheld by the Waitangi Tribunal (the claim was about a breach of Treaty obligations of protection and a range of remedies could be provided which could be consistent with the settlement made with Ngai Tahu).
* The provisions in the Settlement Act 1998 for statutory areas of special significance to Ngai Tahu and statutory acknowledgments of Ngai Tahu links to those areas (Part 12, ss206-220) was a careful statutory scheme which provided that statements of association should be taken into account but should not in any way affect the interests of any person not a party to the settlement (s218-219).
* Similarly, the provision in the 1998 Act for the recognition of particular landmarks of importance to Ngai Tahu in conservation areas and for their management as tīuni expressly did not affect any third party (Part 12, ss239-252). This was also true of provisions relating to nohoanga and Whakapoai land in Westland.
This is the scheme of the Settlement Act. It implements the settlement with Ngai Tahu. It precludes further claims by Ngai Tahu. The settlement of the Ngai Tahu claims is final. The benefits specifically conferred upon Ngai Tahu cannot be challenged, but beyond the benefits expressly conferred upon Ngai Tahu, no rights or interests of anyone not party to the deed of settlement are affected. The recognition of Ngai Tahus interests are specific and carefully limited in effect. The scheme of the Act did not preclude a claim by Ngati Apa to the Waitangi Tribunal based on its interests in land, even if within the takiwa of Ngai Tahu. More important, it did not, expressly or by necessary implication, deny Ngati Apa standing to seek judicial review of the decision of the MAC.
The courts will be cautious in ascribing to Parliament an intention not explicitly stated (Richardson v Austen (1911) 12 CLR 463, 470). Even if Parliament had assumed that no other tribes had an interest within the takiwa of Ngai Tahu (an assumption almost impossible to draw from the statute which is concerned with a settlement with Ngai Tahu specifically) the existence of an assumption does not enact it, unless the provisions would only be workable if Parliaments assumption were read into the law (West Midland Baptist Assoc v Brimingham Corp (HL) [1970] AC 874, 898). That was not the case here as the 1998 Act was workable without such an assumption. Moreover, any such implication of purpose would have to be irresistible since basic rights were involved. If Ngai Tahu were right in their arguments, Parliament had legislated to deny Ngati Apa rights of access to the courts and the Waitangi Tribunal and had denied Ngati Apa of status as people of mana in their West Coast lands. Accordingly, rights to natural justice and cultural rights protected by the NZ Bill of Rights Act 1990 (ss27 & 20) were affected, and those could not be overridden by general or ambiguous words in a statute (R v Home Secretary ex parte Simms (HL) [1999] 3 WLR 328, 341, R v Home Secretary ex parte Pierson [1998] AC 539, 575. And the NZ Bill of Rights Act 1990 required an interpretation consistent with the rights in the Bill of Rights (s6).
Parliament had not expressly enacted that Ngati Apa could not assert any Treaty or customary interest in West Coast lands, nor expressly purported to affect Ngati Aapas status or deem land within the takiwa of Ngai Tahu to be exclusive of Ngati Apa interests. No such implication was necessary to make the 1998 Settlement Act work and no benefits conferred on Ngai Tahu by that statute could be affected by the Ngati Apa claim.
Accordingly Ngati Apa had standing to challenge the MAC determination and should be able to bring that claim.
Gault J
The challenged order related to sole ownership and Ngati Apa must be seeking to challenge the ownership of Ngai Tahu. It might be that Ngati Apa might establish that their Treaty rights had been breached by the original acquisition of land or by the subsequent denial to them of their right to demonstrate their interest in the land and to have their grievance remedied but the High Court could not now set aside the MAC order, since that had been incorporated into the 1998 Settlement Act. Section 6 specified that Ngai Tahu were the tangata whenua and held tino rangatiratanga within the takiwa of Ngai Tahu.
In addition, the first right of refusal over Crown lands within the takiwa was inconsistent with any right of ownership interest in Ngati Apa.
Ngati Apa would not be bound by the decision of the MAC if they were not a party to that decision. But their statement of claim contemplated that they were affected by it.
Ngati Apa conceded that if they sought any recommendations from the Waitangi Tribunal inconsistent with the 1998 Settlement Act then legislative amendment would be required yet their attack on the decision of the MAC appeared to inconsistent with the 1998 Settlement Act.
If the Ngati Apa claim was for an interest less than ownership then the decision of the MAC was irrelevant. Either way, the claim against the court should be struck out.
While this result might mean that there had been a breach of Ngati Apas Treaty rights in that they had been denied the opportunity to advance a claim to land because it was inconsistent with the 1998 Settlement Act, that was not a matter for the courts to consider, since they were bound to give effect to statutes.
Keith J
The Te Runanga O Ngai Tahu Act 1996 was a private Act concerned with important structural matters internal to Ngai Tahu and had no significance for the current case except that it defined the takiwa of Ngai Tahu, which subsequently achieved further importance when it was adopted in the Settlement Act 1998 (and also in the Ngai Tahu (Pounamu Vesting) Act 1997).
Neither the 1996 Act nor the Settlement Act 1998 gave direct general effect to the part of the ruling of the MAC which referred to the sole rights of ownership for Ngai Tahu in the area of the Arahura and Kaikoura deed of purchase.
Ngati Apa were now seeking both that the MAC decision be set aside and that the court declare that the Waitangi Tribunal could hear the Ngati Apa claim to these West Coast lands. Their claim to the Waitangi Tribunal went beyond the 1990 decision and questioned parts of the Settlement Act 1998 (then a bill) recognising distinct rights, interests and other matters such as values in Ngai Tahu by way of statutory acknowledgments, tīuni and other mechanisms. That detail of the Ngati Apa claim to the Waitangi Tribunal, when read with the carefully written savings provisions of the Settlement Act 1998 showed what was resoundingly obvious that Ngai Tahu did not have sole rights of ownership within its takiwa in 1990, 1996 or 1998 (and the MAC did not purport to say this).
The 1996 and 1998 Acts only made direct use only of the boundary line indicated in the MAC decision, not other parts of that decision. The High Court had felt it necessary to refer to an implication that something more was intended.
The provisions in the 1998 Act relating to the finality of settlement and limiting the jurisdiction of the courts and the Waitangi Tribunal to examine the settlement (ss461 & 462) did not prevent in any absolute way the presentation of Ngati Apa claims to any court or tribunal, including the Waitangi Tribunal. The courts and the Waitangi Tribunal could also properly consider whether a claim by another tribe could be consistent with the 1998 Act.
It was not possible to say that Ngati Apa could not possibly succeed in their claim for a declaration that the Waitangi Tribunal might still hear their claim to these lands. Mana was a component of the claims and that was important in relation to consultation with local authorities. Ngati Apa saw mana as an essential element in their claims.
In so far as the MAC referred to the sole rights of ownership of Ngai Tahu in their takiwa, the 1996 and 1998 Acts did not incorporate that matter in any general or direct sense (although the 1998 Act did plainly recognise and confer particular confined rights of ownership of land on Ngai Tahu), but the boundary was a different matter however. The broad jurisdiction of the courts might allow the possibility of a declaration in respect of part but not all of the MAC decision, and in respect of the ability of the Waitangi Tribunal to hear the claim. But to the extent that the proceedings sought to set aside the boundary decision arising from the 1990 decision and included in the 1996 and 1998 Acts they must fail.
Blanchard and Tipping JJ
The following matters were significant:
* Ngati Apa alleged that Ngai Tahu was substantially and adequately funded throughout the hearing before the MAC (which was in the middle of hearings of their claim before the Waitangi Tribunal), whereas they were not well funded or prepared. None had at that time made any claims to the Waitangi Tribunal or had received any research assistance.
* The Waitangi Tribunal itself has expressed the view that s6A may not be consonant with rights protected by the Treaty and has questioned the correctness of the MAC approach and the appropriateness of the Waitangi Tribunal referring questions of boundaries to the AMC for determination.
* The Crown, in reply to correspondence from Ngati Apa had admitted that the settlement with Ngai Tahu would not prevent other iwi.
* Ngati Apa unsuccessfully challenged the settlement act in the select committee.
The order was an integral part of the settlement act, and setting it aside would completely undermine an essential element of the settlement act. The court would be used to attack Parliaments decision to accept the MAC order. And this would come close to a breach of article 9 Bill of Rights 1688 (remaining in force in NZ through the Imperial Laws Application Act 1988).
This would not prevent the court making a declaration however that the order of the MAC was made in breach of natural justice or some other procedural requirement. Formally setting aside the order would remove a fundamental premise of the Settlement Act, whereas a declaration would simply inform Parliament that what it thought was a secure foundation for the Settlement Act was not in fact secure.
In terms of Ngati Apas claim to the Waitangi Tribunal, s6A Treaty of Waitangi Act 1975 does not make a finding of the MAC as to boundaries binding on a person who is not a party to them. If an order was invalidly made, it would not be binding on anyone, once the invalidity had been established. The adoption of the order by Parliament in this case meant that the order could not be challenged (a change in legislation would be required, and if the tribunal were to make any recommendations on that score it would have to consider the right of first refusal over land which the Settlement Act gave to Ngai Tahu). However, this would not prevent Ngati Apa from alleging in its claim to the Waitangi Tribunal that the MAC order and legislation were in breach of its Treaty rights. In this sense, there was no need to have the High Court declare that Ngati Apa could attack the MAC order in its claim before the tribunal. It could do that anyway and the tribunal could make such recommendations on that matter as it saw fit (since its powers are recommendatory only). However, the Court of Appeal should not prevent Ngati Apa seeking declarations form the High Court if it wanted to and that part of its court proceedings should stand.
Orders of the court
The combined effect of the judgments was that:
* The part of the Ngati Apa statement of claim asking the High Court to set aside the order of the MAC of November 1990 was struck out. The request in the statement of claim for a declaration that the Waitangi Tribunal had jurisdiction to hear the Ngati Apa claim remained.
* Ngati Apa were given leave to amend their claim to seek a declaration from the High Court that the order of the MAC of November 1990 was invalid.
* Ngai Tahu to pay costs of the strike out application.

Commentary: while the court was split, the overall effect is that a majority of 4 supported the right of Ngati Apa either to have their claim before the Waitangi Tribunal heard, even if it fell within the takiwa of Ngai Tahu, or to challenge the MAC order on grounds of fairness and Treaty breach before the Waitangi Tribunal.
Ngati Apa have reason to hope that they will have some success in their arguments before the Waitangi Tribunal. Justice Durie has on several occasions expressed a concern about defining multilayered tribal interests by drawing lines on maps (eg Maori LR Oct 1994 pp5&10, and research in recent years on hapu and iwi rights (eg Ballara et al) supports that view.
As to costs, Tipping J endorsed comments from counsel for Ngai Tahu that there was a broad and unsatisfactory trend not to award costs to successful parties in cases involving Maori issues. His Honour observed that we cannot see any general basis for dealing with costs in Maori litigation on a different footing from other litigation. Ironically, this meant a cost order against Ngai Tahu for failing in this appeal.

Maori Law Review