December 2016 Māori Law Review

Judicial Review – Waitangi Tribunal must recommend return of land or clearance – Attorney-General v Haronga

Attorney-General v Haronga

Court of Appeal [2016] NZCA 626

19 December 2016

The Court of Appeal dismissed appeals from two High Court decisions about the scope of the Waitangi Tribunal's discretion in recommending remedies where licensed forest land or memorialised land is sought as a remedy for well-founded claims. Both High Court decisions had found the Tribunal's decisions under review were unlawful. The Court of Appeal upheld that result. The Waitangi Tribunal has to make decisions again on the remedies sought.

Download Attorney-General v Haronga.

Overview and result

Judicial Review - Waitangi Tribunal must recommend return of land or clearance - memorialised land - Crown forest licensed land
Date19 December 2016
CaseAttorney-General v Haronga
Citation[2016] NZCA 626
CourtCourt of Appeal
Judge(s)Ellen France P, Harrison and Cooper JJ
Earlier/later decisionsHaronga v Waitangi Tribunal HC Wellington CIV-2009-485-2277, 23 December 2009; Haronga v Waitangi Tribunal [2010] NZCA 201; Haronga v Waitangi Tribunal [2010] NZSC 98; Haronga v Waitangi Tribunal [2011] NZSC 53, [2012] 2 NZLR 53; Haronga v Waitangi Tribunal [2015] NZHC 1115; Flavell v Waitangi Tribunal [2015] NZHC 1907
Legislation citedTreaty of Waitangi Act 1975, s 5, s 6(3), s 7, s 8HB(1), s 8HC; Crown Forests Assets Act 1989, s 36; Ngāti Kuri Claims Settlement Act 2015; Ngāi Takoto Claims Settlement Act 2015; Te Aupouri Claims Settlement Act 2015; Te Rarawa Claims Settlement Act 2015
Cases citedAttorney-General v Mair [2009] NZCA 625; New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA and HC); New Zealand Māori Council v Attorney-General [1989] 2 NZLR 142 (CA); Waitangi Tribunal The Mangatū Remedies Report (Wai 814, 2013); Waitangi Tribunal Tūranga Tangata Tūranga Whenua (Wai 814, 2004); Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL); Commissioner of Inland Revenue v Michael Hill Finance (NZ) Ltd [2016] NZCA 276, [2016] 3 NZLR 303; Waitangi Tribunal Tūrangi Township Remedies Report (Wai 84, 1998); Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997); Waitangi Tribunal Ngāti Kahu Remedies Report (Wai 45, 2013)
Overview and resultThis case concerns two appeals which address a common issue; the power of the Waitangi Tribunal under the Treaty of Waitangi Act 1975 to make binding recommendations about Crown forest licensed land and memorialised land under the State-owned Enterprise Act 1986.

The first appeal was brought by the Crown against the decision of Clifford J who had granted judicial review in the High Court of the Tribunal's Mangatū Remedies Report. Cifford J found the Tribunal had erred in law and misconstrued the statutory scheme of the binding recommendation regime by failing to make recommendations, despite the statutory requisites being met. The second appeal by the Venerable Timoti Flavell, also cross-appealed by the Crown, was about another High Court decision, by Dobson J, granting judicial review of the Tribunal's Ngāti Kahu Remedies Report. Dobson J found that the Tribunal erred by treating its power to make binding recommendations as a remedy of last resort, and by failing to consider whether binding recommendations were appropriate for parts only of the land for which remedy was sought.

First Appeal

The Crown submitted that Clifford J was wrong in finding that the statutory prerequisites for a binding recommendation were met as the Tribunal’s report did not amount to a commitment to make a binding recommendation. This ground of appeal failed as the Court of Appeal decided the Tribunal expressly found that the first two parts of s 8HB(1) of the 1975 Act were in fact met, making the claimant groups eligible for a binding recommendation.

The Crown also submitted that the Tribunal has a broad discretion to make any recommendations under s 6(3) and binding recommendations sought can be declined on the facts of the case before it, even if the prerequisites under s 8HB(1) are met. The Crown submitted this is what the Tribunal correctly did in the Mangatū Remedies Report. This ground of appeal failed. The Court of Appeal found that in light of the policy of the legislative changes in 1989 made to the 1975 Act as a result of Crown forest legislation, s 8HB(1) obliged the Tribunal to make a recommendation if the prerequisites are met. The Tribunal erred by adopting the middle ground urging the parties to negotiate settlement of their differences themselves without receiving Tribunal recommendations. Section 8HB(1) is the controlling provision, the discretion of the Tribunal under s 6(3) is limited to the threshold inquiry as to whether the Crown should act to compensate or remove the prejudice suffered by the claimants in respect of Crown forest land. Thus, the Tribunal in this case was obliged to make a recommendation.

This reasoning applied to each group affected by the Mangatū Remedies Report. The High Court's conclusion that the report was unlawful was upheld. The Crown appeal was therefore dismissed. The orders made in the High Court remain requiring the Tribunal to reconsider and make fresh decisions about what recommendations to make.

Second Appeal

In the second appeal, brought on behalf of Ngāti Kahu, it was submitted that Dobson J in the High Court erred by refusing to accept the guiding principles of the Tribunal’s statutory discretion outlined in the 2011 Supreme Court decision Haronga v Attorney-General. The Tribunal wrongly took a last-resort approach when deciding what remedies to recommend to the Crown. This appeal was dismissed. There was no jurisdictional basis for the Court to hear it as the intended appellant was successful in the High Court before Dobson J. Dobson J had remitted the case back to the Waitangi Tribunal to reconsider. However, the correct principles to be followed by the Tribunal were as the Court of Appeal had now decided in relation to the first appeal above.

Cross-Appeal

The Crown's cross-appeal from Dobson J's decision was also dismissed. The Crown submitted that Dobson J erred by finding that the Tribunal wrongly took a last-resort approach. It was submitted that Dobson J took a general restorative approach. Adopting the same reasoning as for the first appeal, the Court of Appeal decided that Dobson J was right in finding that the Tribunal erred.

Case note by Eru Kapa-Kingi.

Overview and Result

Just prior to the Christmas break the Court of Appeal released a combined judgment in two sets of judicial review proceedings regarding the Waitangi Tribunal’s powers to make binding recommendations for the return of land under the Treaty of Waitangi Act 1975[1].

The first of these challenges was an appeal by the Crown of the High Court decision in Haronga v The Waitangi Tribunal [2015] NZHC 1115 (see (2015) July Māori LR).  The second was an appeal by both the Crown and applicant of a later High Court decision in Flavell v the Waitangi Tribunal [2015] NZHC 1907 (see (2015 September Māori LR).

The detailed background of both these cases is discussed in more detail in earlier articles.

In brief, the Haronga proceedings relate to an application for the binding remedies over the Mangatu forest, near Gisborne.   The land had been offered as part of a settlement package being negotiated with a ‘large natural grouping’ representing a number of claimant groups.  However one group, represented by Mr Haronga, elected to step outside of the negotiations and seek the return of the land to themselves directly.   Other claimant groups quickly followed with their own applications to protect their own positions.

Following a lengthy process the Supreme Court directed the Waitangi Tribunal to hear this remedies application.  Having done so the Waitangi Tribunal then declined to make binding recommendations – primarily because of the complex interwoven claims by a number of groups meant doing so was fraught with difficulties, and because of a preference for settlement negotiations with the Crown as being the way to resolve these.

That decision was challenged in the High Court by Mr Haronga.  The High Court found that the Tribunal had erred in law in a number of respects.  The essence of these was that the Tribunal was not entitled to avoid making binding recommendations because of the difficulties involved in doing so[2] or because the Tribunal preferred to defer to settlement negotiations as it saw binding recommendations as a remedy of last resort[3].   The Crown appealed this finding, and also questioned whether the necessary triggers for binding recommendations had in fact been met.

The Flavell proceedings came about in the context of settlement negotiations between Ngati Kahu, a number of other Far North iwi, and the Crown.  In the course of those negotiations Ngati Kahu representatives decided to seek binding recommendations from the Waitangi Tribunal for the return of some properties that were liable for binding recommendations.  Other iwi with overlapping interests in some of those properties continued to negotiate a settlement with the Crown while Ngati Kahu’s negotiations were suspended as a result of that application.

The Waitangi Tribunal again declined to make binding recommendations, noting the difficulties in doing so because of overlapping claims from other groups, and because the Tribunal believed that settlement negotiations were likely to provide a better outcome.   That decision was also challenged in the High Court.

Here the High Court found that the Tribunal erred in law in coming to this conclusion – the main error again being in the Tribunal seeing binding recommendations as a remedy of last resort[4].

After some delay the Court ordered the Tribunal to reconsider the application.  That decision was appealed by both Ngati Kahu – who felt that the High Court was wrong not to see other errors in the Tribunal’s decision – and by the Crown.

Viewed together both the Haronga and Flavell High Court proceedings come to similar end points in pushing the Tribunal towards binding recommendations.  However the two decisions get to the same result in slightly different ways – ways that are hard to reconcile.

For example Haronga contends that the Tribunal should not have any deference to Crown settlement negotiation when considering binding recommendations[5].  In contrast Flavell[6] suggests that this may be appropriate in some instances.

Similarly while Haronga[7] finds that difficulties in determining different claimants interests should not be a reason to decline binding recommendations, Flavell[8] appears to suggest that complexities and difficulties may enable the Tribunal to defer from making binding orders in some instances.

The current Court of Appeal decision on both sets of proceedings is therefore helpful in providing some consistency in understanding how the Waitangi Tribunal’s power to issue binding recommendations should be applied.

What can we take from the Court of Appeal decision?

The over-riding theme from the Court of Appeals’ decision, on both sets of proceedings, is that the Tribunal’s power to make binding recommendations is not an option of last resort. Instead the Tribunal is ‘bound to make an adjudicatory recommendation’[9] if the statutory perquisites for binding recommendations have been met.

Therefore while there are three options open to the Tribunal regarding binding recommendations (i.e. sections 8HB(1)(a), (b), and (c), or the equivalent provisions in s8A depending on the land in question) once the Tribunal comes to the conclusion that claim is well founded those options then narrow to only two possible outcomes[10] – either the land is ordered to be returned to Maori or it is not.

The Court of Appeal has largely removed, or significantly constrained, the possible ‘fourth option’ discussed in the High Court’s Haronga judgment (i.e. a discretion to not make an order if it was ‘premature’ to do so because not all claims to the land had been explored).   This discretion is only relevant where the Tribunal has decided not to return land to the particular claimants, but the Tribunal is not confident that all claims have been heard and the land should be cleared from liability from future processes as a result.   It is not a discretion that would allow the Tribunal to defer from ordering the return of land because of insufficient information[11].

Instead the Court of Appeal is clear that Tribunal has ‘an obligation to act’[12] which it cannot avoid ‘by adopting a middle ground of dismissing or adjourning the applications for the purpose of leaving the parties to negotiate settlement of their differences’[13], or because the decision before the Tribunal is difficult and complex[14].

To date the Waitangi Tribunal, and to some extent the High Court, have gone to some lengths to explore a range of reasons why the Tribunal might avoid acting – that settlement negotiations are preferred, other redress options might be available, the potential prejudice on other claimant groups in negotiations, lack of information, and the difficulties of resolving competing claims for example.

However the Court of Appeal is clear that these are not relevant considerations[15].

Instead, the Court of Appeal appears to see all of these reasons as simply different manifestations of an underlying, and incorrect, view from the Tribunal that binding recommendations are a remedy of last resort[16].

In addition the Court of Appeal notes that a number of these concerns are in the Tribunal’s power to address – if there is a lack of information it can require further evidence[17]; if there are potential inequities then there is some flexibility in how an order might be constructed to address this[18].

Again, the simple point from this decision is that the Tribunal has a ‘plain’ obligation to make recommendations – either for the return of the land or not – if the various statutory prerequisites have been met.  It is not entitled to search for reasons why it would prefer not to.

Where to from here?

It is, of course still open for the Crown to appeal this decision – and so a reconsideration by the Tribunal of the Mangatu and Ngati Kahu remedies applications may still be some way off – if it occurs at all.

But what might the rationale set out by the Court of Appeal mean if it was to be applied to a reconsideration of these applications by the Tribunal?

Given that both remedies applications appear to have met the ‘statutory prerequisites’ discussed by the Court of Appeal (the claims are well founded, relate to land liable for binding orders, the land ought to be returned to Maori, and that some of all of those groups have been identified)[19] it seems that the Tribunal would have little option but to make binding orders for the return of land in some form.

However the unknown here is what form the details of those orders might take.

There is a great deal of flexibility for the Tribunal in how it can structure the sole outcome now open to it – it may be that there a number of ways to skin this particular cat if that is what the Tribunal must do.

For example, in making any order the Tribunal has the power to ‘recommend any such terms and conditions as the Tribunal considers appropriate’[20].   It can also recommend any ‘Maori or group of Maori’[21] as being entitled to the return of the land in question – and importantly the Act does not require the return to the particular claimants driving the proceedings.   Only ‘part’ of the land in question, or simply an ‘interest’ in the land[22], might also be returned under binding recommendations – and for forest land the overall value can be adjusted through discretion in the degree of compensation to award[23].  Orders are also only interim, and become binding after a 90-day period of negotiation.

This then appears to give the Tribunal a wide scope to address many of the issues it has appeared concerned about to date - such as the fairness of any outcome on other claimants, the relationship with settlement negotiations, or who might receive land.   Could, for example, the Tribunal simply cut through the difficulties of deciding complex competing claims by not ordering the return to individual claimants but to a joint entity representing them all to be established within 90 days?

While this flexibility may provide for some creative outcomes, one suspects that they may not necessarily be the outcomes that particular claimants (or the Crown for that matter) would prefer.  As a result it may be that it is the extent of this discretion that is next tested in these proceedings.

Finally it is interesting to consider what the Court of Appeal decision may mean for future remedies applications.

On the face of it appears that binding remedies have been strongly confirmed as a option in the claimants ‘tool box’ as they seek redress, and as an alternative pathway to settlement negotiations.

However the Court of Appeals caveat that the ‘statutory prerequisites’ must be met before the Tribunal’s options narrow to a ‘yes’ or ‘no’ decision is an important one.

The risk here is that the Tribunal’s reluctance to be drawn into binding recommendations will mean that its’ decisions earlier in the process become more equivocal.   Will the Tribunal now being to hedge its bets a little more in the decisions it makes under s6(3) of the Act and in particular in what outcomes it recommends for a claim so that those prerequisites are not met?

It would be unfortunate if that were the case.

The underlying theme of this judgment, if not the entire set of proceedings in Haronga, is to stress the active duty on the Tribunal to exercise the adjudication function that it has been given.  In categorizing the various reasons the Tribunal has put forward why it should not exercise this power as all being, at their core, the same wrongly held view that this power is a last resort the Court of Appeal decision can be seen as a strong direction to the Tribunal to act rather than to search for a reason not to.

The effect of this is to affirm that there are both negotiation and adjudication pathways potentially open to claimants in resolving their claims and that ultimately which pathway they take is their decision, and one that they have the right to make.  There is, after all, no statutory requirement to enter into settlement negotiations.

It would be disappointing if the Tribunal was to undermine that decision making power of the claimants (and the leverage that comes with it) by again shying away from the difficulties it faces in making binding recommendations.   Hopefully instead the Tribunal embraces the flexibility that his has in developing binding orders as a way of meeting those challenges.

[1] Attorney-General v Haronga [2016] NZCA 626

[2] Haronga v The Waitangi Tribunal [2015] NZHC 1115 at para 103

[3] ibid at para 100

[4] Flavell v Waitangi Tribunal [2015] NZHC 1907 at para 61

[5] Haronga v The Waitangi Tribunal [2015] NZHC 1115 at para 100-102

[6] Flavell v Waitangi Tribunal [2015] NZHC 1907 at para 89-93

[7] Haronga v The Waitangi Tribunal [2015] NZHC 1115 at para 103

[8] Flavell v Waitangi Tribunal [2015] NZHC 1907 at para 78-79

[9] Attorney-General v Haronga [2016] NZCA 626 at para 92

[10] Ibid at para 65 and 92

[11] ibid at para 65

[12] ibid at para 65

[13] ibid at para 60

[14] ibid at para 66

[15] ibid at para 93-95

[16] ibid at para 64

[17] ibid at para 66 and 69

[18] ibid at para 72

[19] para 60

[20] Treaty of Waitangi Act 1975 s8A(2)(a) and s8HB(2)(a)(

[21] ibid

[22] ibid