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JOHN TUMAI REHU Third Plaintiff







Hearing: Judgment: Counsel:

8 May 1998 13 May 1998 D H Hicks for Plaintiffs to oppose J O Upton QC, C F Finalyson and N D Davidson for Defendant Applicant P J Andrew for Intervenor in support

_________________________________________________________________ RESERVED JUDGMENT OF MASTER VENNING _________________________________________________________________

unless the context otherwise requires. On 24 April 1996 the Te Runanga O Ngai Tahu Act 1996 (the Act) was passed. the Defendant’s charter contains the rules by which the Defendant administers its affairs. the second under R477. ‘Ngai Tahu Whanui’ means the collective of the individuals who descend from the primary hapu of Ngai Tahu and Ngati Ammo. The Act recognises that.The Defendant seeks an order striking out the amended statement of claim or in the alternative an order dismissing the proceeding generally. by virtue of the Act. The initial Waitangi Tribunal report was followed in September 1991 by a supplementary report on Waitangi legal personality. The applications are supported by the Attorney General as Intervenor. That was a non-binding 2 . The First Plaintiff is one of those 18 members. Katie Irakehu. This later report recommended that legislation be introduced to provide a legal personality for the Ngai Tahu. They led to a Heads of Agreement on 5 October 1996. Section 2 of the Act states: “In this Act. The Defendant is. In June 1996 the Crown entered a deed of on account settlement with the Defendant. Katie Kurt. In 1986 the Ngai Tahu claims were filed in the Waitangi Tribunal. Negotiations with the Crown commenced again in April 1996 following the passing of the Act. the representative body of the Ngai Tahu tribal collective defined as Ngai Tahu Whanui.” The Ngai Tahu Whanui comprises 18 members. Kati Huirapa. being the 18 Papatipu Runanga whose names appear in the first schedule to the Act. and Kai Te Ruahikihiki. The first order is sought under R186. Formal negotiations then commenced. Ngai Tuahuriri. amongst other things. They are conveniently set out in the affidavit of Sir Tipene O’Regan. BACKGROUND Counsel agreed the background facts are not in dispute in this matter. The Tribunal report on those claims was produced in February 1991. namely.

In particular. The Defendant convened a member of the 18 members of the Whanui on 15 November 1997. (c) Otherwise intervening with the property rights claimed by any of the Plaintiffs. Dealing with or disposing or attempting to deal with or dispose of any of the property rights claimed by any of the Plaintiffs. the postal ballot showed that of those voting (approximately 54% of those entitled to) in excess of 93% were in favour. Voting was 16 for and two against. A postal ballot was held and the negotiating group conducted ten hui throughout New Zealand. 3 . inter alia. In addition. that the Heads of Agreement be ratified and that the Ngai Tahu negotiating group be authorised to enter into formal negotiations with the Crown to settle the terms of a Deed of Settlement. The Defendant then engaged in a consultative exercise to ascertain the level of support amongst its members for the settlement offer.agreement between the Defendant and the Crown. At that meeting a number of resolutions were passed. The negotiations with the Crown led to a settlement offer on behalf of the Crown on 23 September 1997. If there was sufficient support it was intended the Deed of Settlement would be formally executed at a hui fixed for 21 November 1997. some four days before the Deed of Settlement was due to be executed. On 3 November 1996 the Defendant held a meeting attended by representatives of the Ngai Tahu Whanui to consider the progress of the settlement negotiations. The Plaintiff sought an interim injunction restraining the Defendant from: (a) (b) Executing the proposed Deed of Settlement with the Crown. There then followed formal meetings of the Defendant at which the negotiating group reported on the progress of negotiations with the Crown. At that meeting it was resolved. the first resolution accepting the Crown settlement offer of 23 September 1997 was passed. These proceedings were initially filed on 17 November.

10. Third and Fourth Plaintiffs have customary or traditional aboriginal rights to fish in certain areas. None of the Plaintiffs have ever consented to the Defendant exercising any rights in the nature proprietorship in respect of. The amended statement of claim essentially claims that the Second. It is then pleaded: “8. or to the Defendant in any way dealing with or disposing of. Third and Fourth Plaintiffs referred to in paragraphs 5 to 7 above (‘the Plaintiff’s customary and other rights’). (b) 9. Limiting the hitherto several unrestricted rights of the Second. They did not receive a satisfactory response. To the extent that a Deed of Settlement includes an agreement by the Defendant to the issue of regulations limiting or restricting the 4 . Subsequent to the dismissal of the application. The Defendant then filed an application to strike out the Plaintiff’s claim on 6 March 1998. The Deed of Settlement provides by clause 12.11 (inter alia) for:(a) The making of regulations for the purpose of providing customary Maori fishing rights in respect of fresh water fisheries within the South Island fisheries waters. the solicitors for the Defendant wrote to the Plaintiff’s solicitors and sought a formal notice of discontinuance of the proceedings. It is that amended application which has been the subject of argument before the Court. On 21 November 1997 the Defendant and the Crown entered into a Deed of Settlement (‘the Deed of Settlement’) which resolved a number of longstanding grievances of Ngai Tahu.The application was called before Ellis J on the morning of 19 November. more particularly referred to in the claim. The parties discussed the matter during the course of the morning and the Court was advised that the Plaintiffs no longer wished to proceed with the application for interim relief. the Plaintiffs’ customary and other rights. The application for injunction was dismissed with costs reserved. That application was met with an amended statement of claim on 7 April 1998 which in turn has been met by an amended notice of application for an order striking out the pleading and/or dismissing proceeding.14.

Plaintiffs’ customary and other rights it is not binding upon the Second. Third and Fourth Plaintiffs. the Plaintiffs’ and other Maori fishing rights are provided for in s26ZH of the Conservation Act 1987.” During the course of submissions Mr Hicks confirmed that no relief was sought on behalf of the First Plaintiff and the First Plaintiff could be struck from the proceedings.” The relief sought in the prayer is: “A declaration that they are not bound by any agreement of the Defendant in the Deed of Settlement to the issue of regulations which in any way limit or restrict the Plaintiffs’ customary and other rights.14. 5 . it is effectively a submission on the principal relief sought.” p645 In that regard I note that paragraph 10 of the statement of claim is not a statement of fact. PRINCIPLES The experienced counsel appearing for all parties accepted there was no issue as to the relevant principles.11 of the settlement deed proposes regulations which may affect the provisions of s26ZH. clause 12. Mr Hicks also emphasised the other well known principle of striking out applications that where the Court comes to the view the pleadings may be defective but are capable of amendment. As noted. then invariably the Court should allow the amendment rather than taking the draconian step of striking out: Marshall Futures Ltd v Marshall [1992] 1 NZLR 316. At present. assuming that all the allegations in the statement of claim are factually correct. the plaintiff’s case must be so clearly untenable that it cannot possibly succeed and the Court will approach the application. In relation to an application under R186 they are to be found in Electricity Corp Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641.655: “The jurisdiction is to be sparingly exercised and only in a clear case where the Court is satisfied that it has all the requisite material to reach a definite and certain conclusion.

supported by the Intervenor. that the whole issue the subject of the proceeding was before Parliament. First.” p419 Rule 477 is in addition to the inherent jurisdiction of the Court. In that regard Mr Upton referred to the settlement process in general and the time that had passed and the events that had occurred since the Heads of Agreement had been signed on 15 October 1996 in particular. the prevention of abuse of process has by itself long been a ground for the courts striking out or staying actions by virtue of their inherent jurisdiction irrespective of the question of delay and Lord Diplock’s statement of the principles does not affect this separate ground for striking out or staying the proceedings. was primarily brought on two grounds. he submitted that the proceedings were effectively an abuse of process. r1. In the recent decision of Grovit v Doctor [1997] 1 WLR 640 the House of Lords reaffirmed that the Court retains inherent jurisdiction to dismiss a proceeding so as to prevent an abuse of process. as compared with the steps taken by the Plaintiffs in this proceeding. In answer. In the alternative. Mr Hicks submitted that the basis of the Plaintiffs’ claim was that their personal rights belonged to them by descent and were distinct from and not part of any rights they had as members of the Ngai Tahu Whanui.The Defendant also relied upon R477. Lord Woolf in the Grovit case stated: “Although principle (1) links abuse of process with delay which is intentional and contumelious. and that as the declaration sought effectively asked the Court to interfere with the deliberations of Parliament it was impermissible: Te Runanga O Wharekauri Rekohu Inc v Attorney General [1993] 2 NZLR 301. The Defendant’s application. Mr Upton submitted the statement of claim did not therefore disclose a reasonable cause of action. As such the proceedings did not challenge the legislation. After referring to the earlier decision of Birkett v James [1978] AC 297 in which Lord Diplock had referred to the power of a court to strike out for delay in reliance upon RSC Ord 25. He accepted that if any regulations were passed as a result of the Deed of Settlement then any such 6 .

he submitted it was the Plaintiffs’ position that if they were adversely affected by such regulations they would wish to seek compensation from the Crown. I find the submissions by Mr Upton for the Defendant and Mr Andrew for the Attorney General to be compelling and decisive. once it is accepted as it has been on all sides that the deed is not binding on nonsignatories. He referred to the decision of the Court of Appeal in Te Runanga O Wharekauri Rekohu Inc v Attorney General (supra) and emphasised the passage in the judgment where the Court stated: “In any event the other signatories to the deed are not seeking in these proceedings to compel the Crown to introduce any legislation. In short. With respect to the submissions by Mr Hicks. supported as they are by authority and principle. For these reasons the proceedings are misconceived.” p308 He submitted that if there was an acknowledgement on behalf of the Defendant that the Deed was not binding on non-signatories there would be no need for the Plaintiffs to pursue their claim. The answer to this proposition is that the Deed itself is 7 . The first is that it is based on the proposition they are not bound by the Deed of Settlement insofar as it includes an agreement to the issue of regulations which may potentially limit or restrict their customary rights. Mr Hicks submitted that the claim should not be struck out as challenging the Parliamentary process because the declaration sought would not affect the regulations which may or may not be passed in the future. In my view there are a number of fundamental flaws in the case for the Plaintiffs. He submitted that it was to prevent the possibility of any obstacle to their future claims to compensation that the amended statement of claim had been filed. and seeks a declaration accordingly. rather it was specifically directed at the Deed of Settlement and the Plaintiffs’ concerns that they personally did not want to be bound by that Deed of Settlement.regulations would be pursuant to an Act of Parliament and would clearly have statutory force and effect. However.

And on that basis this Court should be extremely cautious about intervening. A constitution. then if the Plaintiffs’ rights are affected. If there are any amendments to that section and/or consequent amendments by regulations applying to Maori fishing rights for fresh water fish. both of which will have legislative force and effect. the Plaintiffs’ customary fishing rights are currently prescribed by s26ZH of the Conservation Act 1987. The Deed has not changed their legal position at all. It is clearly linked to contemporary Parliamentary activity and is not appropriate for contractual rights.” The Deed records a conditional settlement between the Crown and the Ngai Tahu people. As noted by Hammond J in Greensill & Ors v The Tainui Maori Trust Board (17/5/95. As noted by Hammond J in Greensill & Ors v The Tainui Maori Trust Board (supra) there can be no harm to these Plaintiffs as individuals 8 . The Plaintiffs can participate in that legislative process through submissions to the Parliamentary Select Committee. Other parties cannot sue on the Deed. M 117/95): “I do not see how it can be said that this is anything other than a political document.a political compact and does not give rise to any general legal rights. From the Plaintiffs point of view it is not a justiciable document. after all. Save for the very limited circumstances referred to in clause 17. But I am clear that the Court should not do so here. is a ‘political’ document. HC Hamilton. Next. It is conditional upon enactment into law of certain provisions. The Deed can properly be categorised as a political compact. they will be affected not by the Deed of Settlement but by the amendment to the Act and any regulations.8 the deed does not create any rights at law which even the parties to the deed could sue on. I do not say that a Court could never intervene in a document having some political characteristics.

Malone v Metropolitan Police Commissioner [1979] Ch 344. However. Enabling legislation has now been introduced to the House and is before the Select Committee. It would be unreasonable to categorise the proceedings as an abuse of process by reason of delay as “delay” is generally referred to in the context of applications to dismiss under R478. Gouriet v Union of Post Office Workers [1978] AC 435. without using the term 9 . There can be no deprivation to them without legislation which. despite Mr Hick’s submissions. As such it is not capable of being the subject of a judicial declaration: Re T [1975] 2 NZLR 449. would then have legislative force. The Plaintiffs have implicitly accepted that the initial claim was not sound by filing the amended claim now before the Court. the application is not made under R478. In the context of the process that the Defendant and its various hapu and the Crown have been through the proceedings initially brought by the Plaintiffs were certainly brought at the last minute. Whilst it may thus be strictly unnecessary for me to consider Mr Upton’s alternative submission that the proceedings constitute an abuse of process and should be dismissed on that ground. the statement of claim discloses no reasonable cause of action and accordingly must be dismissed. it cannot be said that these proceedings are relevant and to that extent. The proceedings were filed after the Deed of Settlement was executed by the Crown and the Defendant. in my view there is also considerable force in those submissions. In the circumstances. The Select Committee will report after 11 May and it is anticipated legislation may be enacted. it is under R477. in any this time. and given the effect of the Deed. For those reasons I am satisfied.

The proceedings have no purpose and have been overtaken by events. Christchurch for Plaintiffs Bell Gully. There will be orders striking out the Plaintiffs’ amended statement of claim and dismissing the proceedings generally. Costs are reserved to be dealt with by way of memorandum. and on either basis. The Defendant and the Attorney General are to file memoranda in relation to costs within 14 days. Wellington for Defendant Crown Law Office. in my view they constitute an abuse of process. They should be dismissed. The Plaintiffs are to file any memorandum in reply seven days thereafter. in my view the application was properly brought and was well founded. Wellington for Intervenor 10 . For the foregoing reasons. MASTER VENNING Solicitors: Corcoran any pejorative sense.