KAMO v MINISTER OF CONSERVATION [2020] NZCA 1

KAMO v MINISTER OF CONSERVATION [2020] NZCA 1 [29 January 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA519/2018[2020] NZCA 1BETWEEN JOHN KAMO, MELODIEERUERA-FRASER, MONIQUE CROON,STEPHEN TUUTA AND IWIROAWAIRUA being the trustees of the NGĀTIMUTUNGA O WHAREKAURI IWITRUSTAppellantsAND MINISTER OF CONSERVATIONFirst RespondentAND HOKOTEHI MORIORI TRUSTSecond RespondentHearing: 17 April 2019Court: Gilbert, Williams and Courtney JJCounsel: T J Castle and T N Hauraki for AppellantsG L Melvin and C J C Pouwels for First RespondentP J Radich QC and A G Emanuel (joined by D V Williams) forSecond RespondentJudgment: 29 January 2020 at 11.00 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellants must pay the first and second respondents one set of costson a band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] The appellants are trustees of the Ngāti Mutunga o Wharekauri Iwi Trust(Ngāti Mutunga). They seek declarations that the Department of Conservation'scurrent proposal to vest certain lands on Wharekauri/Rēkohu in the Hokotehi MorioriTrust (Moriori) will undermine Ngāti Mutunga's mana whenua and breach the tribe'sright to property, culture and free movement under the New Zealand Bill of Rights Act1990 (NZBORA). In this Court, they have also made Treaty of Waitangi arguments.[2] In the High Court, Collins J declined to issue declarations in the terms sought.1The Judge found that the Ngāti Mutunga had failed to establish with evidence its manawhenua over the relevant land.2 They also failed to convince the Judge thatNgāti Mutunga was entitled to the NZBORA protections argued for.3 It does notappear from the terms of the judgment that Treaty rights were a focus inthe High Court.Background facts[3] Moriori ancestors had lived on the island they call Rēkohu for manygenerations before the arrival in 1835 of a Ngāti Mutunga fighting force of around 900.The force had been conveyed to Rēkohu aboard two British merchant vessels.Ngāti Mutunga themselves were displaced refugees due to earlier incursions fromthe north upon their Taranaki territories.[4] Moriori culture was distinct from Māori culture. Moriori were essentiallypacifist. They were therefore quickly subjugated by Ngāti Mutunga and many werekilled. A significant island population of between 2,000–3,000 prior to 1800 had fallento around 200 by the middle of the 19th century. While not all of that population losswas a result of the Ngāti Mutunga invasion (diseases introduced by the earlier1 Kamo v Minister of Conservation [2018] NZHC 1983, [2018] NZAR 1334 [High Court judgment].2 At [61].3 At [78], [80] and [86].European arrivals also had a role to play), it was nonetheless a substantial contributingcause.[5] As conquerors are wont to do, Ngāti Mutunga superimposed their ownnomenclature on the whenua. They called Rēkohu "Wharekauri". By the late 1860s,most of the Ngāti Mutunga invaders were drawn back to the North Island bythe cessation of hostilities there between Taranaki iwi and the Crown. Many wishedto be heard by the post-war Compensation Court in Taranaki to reclaim theirconfiscated lands. Having been domiciled on Wharekauri/Rēkohu in the early 1860s,they were entitled to the return of those lands as they had not been involved inhostilities against the Crown. Between 20 and 30 Ngāti Mutunga remained onWharekauri/Rēkohu. Moriori, though depleted, significantly outnumbered them.[6] In 1870, the Native Land Court heard applications for native title to all ofthe Wharekauri/Rēkohu lands. The Court found that Ngāti Mutunga werethe traditional owners of all but a tiny portion of the island. It found Ngāti Mutungahad extinguished the pre-existing title of Moriori by the traditional Māori means ofraupatu — that is, by subjugation in "war". The Court also found implicitly thatNgāti Mutunga had maintained sufficient occupation by the cut-off date of 1840 tocement their title according to native custom.4 By contrast, Moriori received awardsamounting to less than 3 per cent of the island.[7] The modern era of Treaty settlements, with its focus on reparations forhistorical loss, as well as cultural continuity into the modern era, reignited the contestof mana between these two peoples that had been played out long ago. The intensityof the contest belies the fact that the intervening century has seen a considerable levelof intermarriage between them. The contest was fought in Māori commercial fisheriesallocation in the 1990s; in land claims litigation and negotiation into this century; andin matters of environmental regulation and conservation management on the island.The contest is seen, at least by the acknowledged leaders of each community, asexistential.4 The rule generally applied in the Native Land Court was that the date upon which title must bedemonstrated was 1840 (the "1840 rule").Taia Farm[8] The focus of the current dispute is Taia Farm, comprising slightly less than1,200 hectares. It is located on the east coast of Wharekauri/Rēkohu. It is a thin sliverof land set between Te Whanga Lagoon to the west and the broad sweep ofHanson Bay to the east. Oriented north to south along its length is a series of smallfreshwater lakes: Lake Kaingarahu, forming part of Taia's northern boundary;Lake Makuku; Lake Kairae; and Lake Taia, after which the land is named. The farmis, for the most part, low-lying sand dune and peat country.[9] Taia is a small part of the original Awapātiki No 1 block, comprising just under12,500 hectares. That block was awarded in 1870 to four Ngāti Mutunga ancestors.The land was progressively partitioned, leased and then sold off, until in 1955the Crown acquired it. The Crown used it for the purposes of settlement.Ngāti Mutunga kaumātua, Sunday Wharetutahi Hough, acquired it from the Crown bydeferred payment lease in the same year. His son, Theodore Hough, eventually soldit back to the Crown in 2002 on the understanding that it would be used as an historicreserve. Apart from its striking natural features, Taia is historically significant becausethere are within its boundaries many of the few remaining groves of "rākau momori".These are ancient living kōpi trees upon which Moriori tūpuna have carved ancestralimages. Kōpi fruit abundantly. The species was originally introduced toWharekauri/Rēkohu by Moriori from mainland New Zealand as a dependable sourceof carbohydrate in a protein-rich but starch-poor environment. As noted inthe ecological assessment prepared for Moriori by Geoff Walls as a part of the vestingproposal: [these rākau momori] are considered highly important taonga, and alongwith extensive shell middens on or near the dune system are the most tangibleevidence of the ancestral tangata whenua [Moriori].[10] Theodore Hough was anxious that these taonga be preserved and placed inthe care of descendants of their Moriori carvers. He felt these descendants werethe appropriate kaitiaki of the rākau momori and of the wider Taia whenua.[11] The land was gazetted as an historic reserve under the Reserves Act 1977 inMay 2002. Since that date, the Department of Conservation (DOC) has beenconsistently of the view that Moriori should be directly involved in management ofTaia, but arrangements have yet to be finalised. The delay was partly a result ofchanges in government, and partly because government subsequently decided torationalise its approach to the development of Crown-Māori Relationship Instrumentswhich had proliferated across the country without consistent oversight since the turnof the century.[12] The current proposal in relation to Taia is to vest the farm in Moriori pursuantto s 26 of the Reserves Act. Moriori would hold the land on trust for the purposes ofthe reserve and on conditions defined by the Minister of Conservation (the Minister).A draft memorandum of understanding (MOU) was prepared some time ago, settingout some of the details of Moriori and DOC responsibility in relation to the land.The MOU is now in final form pending Cabinet approval.[13] Any vesting must by the terms of s 26 of the Reserves Act be preceded bya process of public notification.5 The Minister must then consider any submissionsfrom other government departments or from members of the community.6[14] When the Taia proposal was formally notified, Ngāti Mutunga lodged anobjection, citing an absence of consultation with Ngāti Mutunga, an absence ofconsideration given to its relationship with the land, and the use of public funds topurchase the property.High Court judgment[15] In a careful judgment, Collins J rejected the Ngāti Mutunga claim.7He considered this was not an appropriate case for the granting of declarations becausethe factual foundation for the relief sought (that Ngāti Mutunga had mana whenua overTaia) was a matter of deep dispute between Ngāti Mutunga and Moriori.8Nor, the Judge found, was the case appropriate for consideration under ss 18, 20 and21 of NZBORA. As to the contention of unreasonable seizure of property, the Judge5 Reserves Act 1977, s 26(3)(a).6 Section 26(3)(b).7 High Court judgment, above n 1.8 At [58].recorded that the Ngāti Mutunga had accepted its mana could not be given or takenaway by the Minister, so even if their allegation that mana whenua resided with NgātiMutunga was accepted, it could not have been seized.9[16] In relation to the right to enjoy culture, this too could not have been abrogatedif the proposal could have no effect on mana whenua.10[17] As to freedom of movement, there was no suggestion in the vesting proposalthat Ngāti Mutunga's access to the Taia land would be curtailed following vesting inMoriori.11 On the contrary, the terms of the Reserves Act required public access to bemaintained.12[18] Finally, the Judge considered the application was in any event premature.The terms upon which the vesting would take effect had yet to be settled and it couldnot be known what they might ultimately be until decisions are made in relation tothe Ngāti Mutunga submission.13Submissions[19] Ngāti Mutunga's argument developed a little further in this Court. It wasconstructed around the following propositions:(a) Both Ngāti Mutunga and Moriori have customary and cultural interestsin Taia and both are engaged in negotiations with the Crown in relationto their Wharekauri/Rēkohu claims.(b) Pre-emptively vesting Taia in one of the two parties would breachNgāti Mutunga's Treaty and NZBORA rights.(c) The Crown must consider the Treaty as a mandatory relevantconsideration in making its vesting decisions. It is therefore precluded9 At [77].10 At [86].11 At [92].12 Section 18(2)(b).13 At [93].from resolving Moriori claims by creating another Treaty breach inrelation to Ngāti Mutunga.(d) NZBORA protects Ngāti Mutunga against unreasonable seizure of itsproperty rights. Ngāti Mutunga has a property right in both its manawhenua and its Treaty relationship with the Crown in relation to Taia.The proposed vesting deprives Ngāti Mutunga of those property rightsas well as its right to enjoy culture and move freely within the land.(e) Ngāti Mutunga claims mana whenua over Taia and so does Moriori.It is inappropriate for the Crown to choose winners in relation toparticular land on the island without resolving that issue.(f) The proposed vesting is inconsistent with the Crown's own policy inrelation to the proper treatment of overlapping interests.[20] Further explanation is in order with respect to the Ngāti Mutunga propertyrights claims above at (d). It submitted that mana whenua was the "foundation" forNgāti Mutunga's rights in Taia and that one of those rights consequential on manawhenua could be described as a property right, but "not the property in specie".No further particulars of this property right were provided. It was also argued thatNgāti Mutunga had a property right as "an inherent part of" its Treaty relationship withthe Crown — not the relationship itself. Again, no particulars were provided.With respect, we have found it difficult to follow these arguments. It seems to us thatthe substance of the Ngāti Mutunga case in this respect was that its mana whenua andits Treaty relationship with the Crown were themselves property rights protected bys 21. We have approached our analysis on that basis.[21] In response to these arguments, Moriori argued that Ngāti Mutunga has norelevant property capable of being seized in NZBORA terms. In addition, there isinsufficient evidence of Ngāti Mutunga mana whenua over Taia. All facts, includingfacts particular to the site in question, are disputed. A declaration is therefore aninappropriate remedy whatever the ultimate merits.[22] In any event, vesting Taia in Moriori could not affect Ngāti Mutunga's manawhenua or its rights to enjoy culture and free movement.[23] Finally, Moriori submitted that no final decision has been made in relation tothe terms and conditions of vesting, and until such decision is made, declarationswould be premature.[24] The Crown argued that the unreasonable seizure provision in NZBORAfocused on privacy and property interests together. The only relevant form of propertyin this context is the Crown's indefeasible title. Ngāti Mutunga's mana whenua, if itcould be established, is not capable of being seized in the manner provided for in s 21of NZBORA. Further, in the absence of any detail about the conditions of vesting,Ngāti Mutunga could point to no basis on which any rights to culture or freedom ofmovement could be affected by the vesting.Analysis[25] We agree with the High Court Judge that this is not a case in whichthe declarations sought should be granted. We take this view partly becausethe foundation for the case — Ngāti Mutunga's mana whenua — is disputed byMoriori. While declarations are sometimes made in disputed fact cases,14 we agreewith the Judge that this procedure is inappropriate in this case. The factual disputegoes to the heart of the case. The complex issues of tikanga and law that arise cannotbe resolved without a proper determination of the factual background.15 The secondproblem for Ngāti Mutunga is that it seeks declarations of inconsistency beforethe Minister has come to her own view about whether, and if so, how, Ngāti Mutunga'sinterests in Taia might be recognised. Where the central factual contention inthe proceeding is contested, the appropriate course is to await the final view ofthe Minister to see how she considers the contest should be dealt with. In our view, itis not necessarily inherent in the proposed vesting that Ngāti Mutunga mana whenua14 Lord Woolf and Jeremy Woolf The Declaratory Judgment (4th ed, Sweet & Maxwell, London,2011) at [3–38]; and Ambrose v Attorney-General [2012] NZAR 23 (HC) at [35].15 See Pouwhare v Kruger HC Wellington CIV-2009-485-976, 12 June 2009 at [26]–[27]; R v Sloan[1990] 1 NZLR 474 (HC) at 482; and Ambrose v Attorney-General, above n 14, at [51].will always be defeated (assuming the iwi can establish it has mana whenua).The proceeding is therefore premature.Mana whenua[26] Ngāti Mutunga says it has mana whenua over Taia and that this fact wasconfirmed by the Native Land Court when it awarded the Awapātiki No 1 block toNgāti Mutunga individuals. The Moriori response is to rely on the 2001 WaitangiTribunal Report into the claims of both Ngāti Mutunga and Moriori suggestingthe original award was wrong.16 Such positions are perfectly understandable giventhe pride each side reposes in its history and identity. On the one hand, Moriori is ableto refer to particular cultural associations with rākau momori on the land as justifyingthe delegation of management of the land to it. On the other hand, Ngāti Mutungafocuses primarily, if not exclusively, on the events of 1835 to establish its associationwith Taia.17 It is not possible, let alone desirable, to establish where mana whenuaresides on the basis of the evidence currently before the Court.[27] There is a further complication in this case. Ngāti Mutunga and Moriori arenow considerably intermingled, although they are not co-extensive communities. It iscommon, in tikanga Māori at least, for conqueror and conquered (assuming thoseterms to be apt in this case) to intermarry in this way. The victor obtains therebythe deeper ancestral right (or take tupuna) of the vanquished by recruiting their DNA.And the vanquished obtain the protection of a stronger ally at a time of vulnerabilityby agreeing to share their whakapapa. But these things can change. Vulnerability isnot always permanent. Mana whenua is not frozen in time. It is a living principle oftikanga. Mana whenua might come to be shared, or it might merge in the name ofa new shared ancestor. These are complex factual questions to be assessed onthe evidence against the applicable principles of tikanga Māori, or tikane Moriori, orindeed both. They are certainly not matters capable of resolution on the basis ofuntested affidavit evidence in an application for declarations.16 Waitangi Tribunal Rekohu: A Report on Moriori and Ngati Mutunga Claims in the ChathamIslands (Wai 64, 2001).17 Mr Thomas McClurg, a member of Ngāti Mutunga and lead negotiator for Ngāti Mutunga inrelation to its historical Treaty claims, deposed that he had been told of a Ngāti Mutunga urupa onTaia but was not aware of its location.New Zealand Bill of Rights Act[28] Ngāti Mutunga focused particularly on s 21: the right to be free fromunreasonable seizure of property. Two forms of property were referred to in argument:first, mana whenua; and second, Ngāti Mutunga's Treaty relationship with the Crown.Neither of these is property.[29] First, mana whenua is not property in the classical western sense; that is,a thing that may be possessed in its entirety, expended, alienated, or rights in itsubdivided. Mana whenua is simply not capable of treatment in that way. It is a phraseused to convey the idea of traditional authority over land and its associated resources.18It is not the Māori word for "title" or "property". Customary title primarily dependson descent from the ancestor with the best right. This is called "take tupuna". At leastin tikanga Māori, a hapū can have mana whenua in respect of resources that "belong"to others — that is, in which other hapū have their own distinct ancestral rights.A common example of this phenomenon is where inland tribes have coastal gatheringrights in the traditional rohe (that is, within the mana whenua) of related coastal hapū.This is possible because mana whenua is the right to speak for land. It is not title andit is not a property right, although, to be fair, the two are often co-located in a singlekin group.[30] Second, Ngāti Mutunga's Treaty relationship with the Crown is just that:a relationship. It is not property, even if at times it can become transactional.Section 21 has no application to Ngāti Mutunga's Treaty relationship either.[31] Ngāti Mutunga also argues that the proposed vesting will deny their right toculture guaranteed by s 20 of NZBORA. No particulars are given of relevant aspectsof culture that will be lost in such vesting, but we presume the argument is thatthe relevant cultural loss is the loss of mana whenua. The points we make with respectto s 21 therefore have equal application under s 20. We consider s 20 does not assistNgāti Mutunga here.18 A comprehensive discussion of mana whenua may be found in Richard Benton, Alex Frame andPaul Meredith, Te Mātāpunenga: A Compendium of References to the Concepts and Institutionsof Māori Customary Law (Victoria University Press, Wellington, 2013) at 192 and 198–200.[32] Finally under this heading, Ngāti Mutunga submits the proposed vesting willbe inconsistent with their freedom of movement over Taia as guaranteed by s 18.But Ngāti Mutunga did not have freedom of movement over the land prior to 2002because it was privately owned (albeit by a Ngāti Mutunga kaumātua). And in anycase, once vested as a reserve under the Reserves Act, access for the public isguaranteed, subject to any specific powers to control access that may be granted bythe Minister to Moriori as a condition of the vesting.19 Since we do not know whatthose powers will be, it would be pre-emptive to conclude that Ngāti Mutunga'sfreedom of movement across Taia has been lost.[33] We agree with the High Court that Ngāti Mutunga cannot call in aid ss 18, 20or 21 of NZBORA.Treaty of Waitangi[34] It was common ground that s 4 of the Conservation Act 1987 applies tothe proposed vesting.20 By its terms, the Minister must interpret her functions underthe Reserves Act and carry them out so "as to give effect to the principles of the Treatyof Waitangi".[35] Ngāti Mutunga submitted before us that the proposed vesting is contrary to thatobligation. As we have noted, it does not appear that this argument was made inthe High Court. Is the proposed vesting in Moriori inconsistent with Ngāti Mutunga'sTreaty rights? The answer is that it must depend on the terms and conditions ofthe vesting. Though Ngāti Mutunga did not expressly say so, their argument is reallythat vesting in Moriori on any terms is Treaty-breaching primarily because it isinconsistent with Ngāti Mutunga's mana whenua.19 Reserves Act, s 17(2)(a).20 Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR368 at [34].[36] If the vesting in Moriori did have that effect, Ngāti Mutunga may have a point.But that proposition cannot be established in the abstract. As we have said,mana whenua is not static. It evolves to meet the needs of the time. That is why it hasbeen resilient despite colonisation. If indeed Ngāti Mutunga has mana whenua inrelation to Taia (and we cannot express any view on that), it will not be 1835mana whenua, but 2019 mana whenua; appropriate to today's very differentcircumstances. An important circumstance to be considered is that the nature ofthe modern Ngāti Mutunga relationship with Moriori is no longer one of victor andvanquished (if it ever was), but of close kin. This must mean that the terms ofthe vesting will be critical.[37] Accordingly, the question of Treaty consistency can only be resolved oncethe Minister has considered Ngāti Mutunga's submissions and made her decision.Conclusion[38] We conclude, therefore, that:(a) the evidence is insufficient and the declaratory procedure inapt toaddress questions of mana whenua;(b) there are no property rights engaged in this dispute for which protectionunder s 21 of NZBORA is available;(c) consistency of the proposed vesting with ss 18 and 20 of NZBORA(freedom of movement and the right to enjoy culture) cannot beassessed until after the Minister has settled the terms and conditions ofthat vesting; and(d) the Treaty consistency of the proposed vesting cannot yet be assessedfor the same reason.Result[39] The appeal must therefore be dismissed.[40] The appellants must pay the first and second respondents one set of costs on aband A basis with usual disbursements.Solicitors:Burley Attwood Law, Tauranga for AppellantsCrown Law Office, Wellington for First RespondentMinter Ellison Rudd Watts, Wellington for Second Respondent