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.

Share on FacebookShare on Google+Tweet about this on TwitterShare on LinkedIn