NGĀTI MUTUNGA O WHAREKAURI ASSET HOLDING COMPANY LIMITED v ATTORNEY-GENERAL [2020] NZCA 2

NGĀTI MUTUNGA O WHAREKAURI ASSET HOLDING COMPANY LIMITED v ATTORNEY-GENERAL[2020] NZCA 2 [29 January 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA640/2017[2020] NZCA 2BETWEEN NGĀTI MUTUNGA O WHAREKAURIASSET HOLDING COMPANY LIMITEDFirst AppellantTWA HOLDING COMPANY LIMITEDSecond AppellantAND ATTORNEY-GENERALRespondentHearing: 21 February 2019Court: Brown, Gilbert and Williams JJCounsel: T J Castle and T A Castle for First and Second AppellantsV L Hardy and C R W Linkhorn for RespondentJudgment: 29 January 2020 at 11.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The claim is struck out.C The respondent is entitled to costs on a band A basis certified for secondcounsel with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] The function of the courts in New Zealand is to resolve disputes byadjudicating on the rights of litigants and, if necessary, to grant remedies, includingdeclarations, about those rights. Can the courts make declarations about the rightsconsistency of bills before the House of Representatives? If they cannot, are theynonetheless able to adjudicate upon and make declarations about rights alleged to havebeen compromised by the policy underlying bills?Facts[2] On 8 March 2016, the Government introduced into the House ofRepresentatives the Kermadec Ocean Sanctuary Bill (the KOS Bill).1 By its terms,a new marine sanctuary covering 620,000 square kilometres of the South WesternPacific is to be established (the Sanctuary).2 It is to be centred on the KermadecIslands (or Rangitāhua) and to extend out to the edge of the north-eastern portion ofNew Zealand's exclusive economic zone.3[3] This area coincides with Fisheries Management Area 10 (FMA 10), an areaestablished under the Fisheries Act 1996 within which New Zealand's system offishing quota management applies. If enacted, the effect of the KOS Bill will be toprohibit all fishing within FMA 10.4[4] By the terms of the Māori Fisheries Deed of Settlement 1992 (the 1992Settlement Deed), given effect by the Treaty of Waitangi (Fisheries Claims) SettlementAct 1992, iwi are entitled to 20 per cent of any new fishing quota the governmentdecides to issue when it introduces new species into the quota management system.FMA 10 is very remote. It is not currently commercially fished. Notwithstanding this,the Minister of Fisheries allocated to Te Ohu Kai Moana Trustee Ltd (Te OhuKaimoana) (which for these purposes acts as a holding trustee for the eventual iwirecipients of parcels of quota) the equivalent in quota of 20 per cent of the totalallowable catch within FMA 10. The details of the particular quota were not provided.1 Kermadec Ocean Sanctuary Bill 2016 (120–1).2 Clause 8.3 See sch 2.4 Clause 9(2)(a).The Crown no doubt made this allocation because of its obligations under the Deed ofSettlement that allocated the quota to Te Ohu Kaimoana. The Government hasindicated it does not intend to tender the remaining 80 per cent of the FMA 10 quota.Rather, it will retain that quota.[5] The appellants represent Ngāti Mutunga and Te Whānau a Apanui, iwi withan established entitlement to receive quota from Te Ohu Kaimoana when it comes toallocate it.The claim[6] The essence of the appellants' complaint is that the Sanctuary proposal willeffectively confiscate their entitlements in FMA 10.5 This proceeding followsa similarly-structured challenge to the Sanctuary proposal which had been brought byTe Ohu Kaimoana.6 It is useful background, therefore, to briefly outlinethe High Court's treatment of that challenge.[7] As in the present case, the Crown sought an interim stay pending enactment ofthe KOS Bill. It was granted by Simon France J in the High Court. The Judgereasoned that because the Sanctuary could only be created by legislation, anychallenge to the Crown's proposal to establish it could only be a challenge to the Billitself and that was impermissible.7[8] The Judge did accept that some aspects of the challenge were "capable ofexploration".8 The comity principle, he said, should not be seen as banning anyjudicial consideration of "all related issues".9 Crucially, however, the Judge concludedthat there had been no application to sever the aspects of the case that did not amountto a challenge to the KOS Bill and so a stay of the entire proceeding was appropriate.105 The appellants also argue that commercially valuable species capable of being fished withinFMA 10 (albacore tuna and skipjack tuna) have not been brought into the quota managementsystem by the government, so iwi have no quota in those valuable species. This was nota particular area of focus in their argument.6 Te Ohu Kai Moana Trustee Ltd v Attorney-General [2016] NZHC 1798, [2016] NZAR 1169.7 At [29].8 At [27].9 At [24].10 At [27].[9] As presently constituted, the appellants' proceeding seeks a declaration thatthe establishment of the Sanctuary and the proscription of fishing within it breachrights and freedoms guaranteed to them under the New Zealand Bill of Rights Act1990 (BORA) — in particular, the right to be free from unreasonable seizure of theirproperty,11 the right to freedom of movement,12 the right to enjoy their culture,13 andthe right to observance of the principles of natural justice.14 Further, the appellantsargue that the Sanctuary breaches the provisions and principles of the Treaty ofWaitangi (the Treaty), including the Crown's fiduciary obligation and duty of goodfaith; breaches the 1992 Settlement Deed and its implementing Act; underminesNew Zealand's quota management system and the rights held by the appellants underit; and is inconsistent with the United Nations Declaration on the Rights of IndigenousPeoples15 and the United Nations Convention on the Law of the Sea.16 It will be seenthat although the focus is on BORA rights, the appellant argues that these rights are tobe seen in the context of a deeper matrix of rights, and particularly indigenous rights.[10] In the High Court the Crown sought an interim stay of the proceedings"until such time as the Kermadec Ocean Sanctuary Bill is no longer beforeParliament". The order was sought on the grounds that the claim constitutedan improper interference in the proceedings of the House, would infringe the House'sprivileges and offend the principle of comity between the legislative and judicialbranches.[11] The Crown also filed a draft statement of defence in which its primary pleadingwas that it had no obligation to plead to the alleged breaches of rights, but nonethelessdenied the allegations that the KOS Bill would breach the appellants' rights.11 Section 21.12 Section 18.13 Section 20.14 Section 27.15 United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007).16 United Nations Convention on the Law of the Sea 1833 UNTS 3 (opened for signature10 December 1982, entered into force 16 November 1994).The High Court judgment[12] In the High Court, Clark J granted the Crown's application for an interim stay.17The essence of the Judge's reasoning was that the appellants' challenge was prohibitedby s 11 of the Parliamentary Privilege Act 2014.18 That section provides as follows:11 Facts, liability, and judgments or ordersIn proceedings in a court or tribunal, evidence must not be offered orreceived, and questions must not be asked or statements, submissions,or comments made, concerning proceedings in Parliament, by way of,or for the purpose of, all or any of the following:(a) questioning or relying on the truth, motive, intention, or goodfaith of anything forming part of those proceedings inParliament:(b) otherwise questioning or establishing the credibility, motive,intention, or good faith of any person:(c) drawing, or inviting the drawing of, inferences or conclusionswholly or partly from anything forming part of thoseproceedings in Parliament:(d) proving or disproving, or tending to prove or disprove, anyfact necessary for, or incidental to, establishing any liability:(e) resolving any matter, or supporting or resisting any judgment,order, remedy, or relief, arising or sought in the court ortribunal proceedings.[13] The Judge held that the claim was "an unambiguous questioning of aproceeding" in the House.19 This was because the claim alleged rights breaches whichcannot be determined without questioning the effect of the KOS Bill, which was aproceeding in Parliament for the purposes of s 11.20Submissions[14] The appellants argued that the challenge to the KOS Bill and the relief soughtdid not offend against s 11 of the Parliamentary Privilege Act. Rather, it was argued,the challenge was permissible in light of authority on the question of the extent to17 Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General [2017] NZHC 2482,[2018] NZAR 18.18 See [33]–[42].19 At [36].20 At [36].which courts are entitled to make findings about, and grant relief in relation to,proceedings before Parliament where they are relevant to a dispute. The appellantsrelied on the decision of the Supreme Court in Ngāti Whātua Ōrākei Trust vAttorney-General.21 Ngāti Whātua Ōrākei (Ngāti Whātua) brought proceedingsagainst the Crown in relation to proposed Treaty settlements with other iwi who haveclaims in the greater Auckland area. Ngāti Whātua argued that certain redress on offerbreached its ahi kā and mana whenua. The appellants focused particularly onthe judgment of Elias CJ. They argued that the reasoning she employed was thatthe courts are entitled to enquire into legislative proposals without crossing intothe legislature's preserve, provided there was no question of coercive relief.For example, referring to the decisions in Comalco Power (New Zealand) Ltd vAttorney-General22 and Te Runanga o Wharekauri Rekohu Inc v Attorney-General,23Elias CJ said:24The Courts in these cases were not concerned with declarations of existinglegal right without coercive effect as to what could be placed beforeParliament. The reference in Te Runanga o Wharekauri Rekohu to declarationor damages or other relief is a reference to dictating what can be placed beforeParliament. The case does not suggest that determination of present legalentitlement constitutes impermissible interference with proceedings inParliament.[15] The appellants also called in aid the decision of this Court in Thompson vTreaty of Waitangi Fisheries Commission where the Court in effect considered whetherthere was inconsistency between the 1992 Settlement Deed and the Māori FisheriesBill 2003 then before the House.25 While the Court made no formal declarations,26 amajority was prepared to comment extensively on whether the proposed allocationmodel, which would be given effect by legislation, was consistent with the 1992Settlement Deed.27 The Court's decision was issued in June 2004. The majority notedthat the Parliamentary Select Committee was due to report back to the House on theMāori Fisheries Bill the following month. It can be inferred that the judgment wastimed to ensure the Select Committee could take proper account of it.21 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116.22 Comalco Power (New Zealand) Ltd v Attorney-General [2003] NZAR 1 (HC).23 Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA).24 Ngāti Whātua Ōrākei Trust, above n 21, at [120].25 Thompson v Treaty of Waitangi Fisheries Commission [2005] 2 NZLR 9 (CA).26 At [196].27 At [173]–[195].[16] For the Crown, it was submitted that the terms of s 11 precluded the bringingof the appellants' claim in its current form. The Crown cited a number of decisions inwhich "the principle of non-interference" had been articulated and applied.28 It arguedfurther that subsequent authorities including Ngāti Whātua and Thompson were in factconsistent with the claim in this case being stayed until the legislation is enacted.Analysis[17] On any reading of the Parliamentary Privilege Act, the courts do not havejurisdiction to make declarations of inconsistency between BORA (or indeed anyother) rights and Bills before the House.The scope of the Parliamentary Privilege Act[18] Section 3 sets out the purposes of that Act. The main purposes are to reaffirmand clarify the nature, scope, and extent of parliamentary privileges and immunitiesand to ensure the proceedings in Parliament and communications or documentsrelating to such proceedings are adequately protected from civil and criminalliability.29 The subsidiary purposes of the Act focus particularly on art 9 of the Bill ofRights 1688 and on overruling the decision of the Supreme Court in Attorney-Generalv Leigh, which took a relatively narrow view of what amounted to "proceedings inParliament".30[19] Section 4(1)(b) provides that the Parliamentary Privilege Act must beinterpreted in a way that:promotes the principle of comity that requires the separate and independentlegislative and judicial branches of government each to recognise, withthe mutual respect and restraint that is essential to their importantconstitutional relationship, the other's proper sphere of influence andprivileges [20] We have already set out s 11. Its effect is that no court may receive evidence,statements, submissions, or comments concerning proceedings in Parliament for28 Te Runanga o Wharekauri Rekohu, above n 23, at 308; Westco Lagan Ltd v Attorney-General[2001] 1 NZLR 40 (HC) at [98]; and New Zealand Maori Council v Attorney-General [2007]NZCA 269, [2008] 1 NZLR 318 at [46], [51]–[52] and [60].29 Section 3(1).30 Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713.the purpose of engaging with the truth, motive, intention, or good faith of any aspectof those proceedings; or with the credibility, motive, intention or good faith of anyperson connected with them; or to draw inferences or conclusions from them; or toprove or disprove any fact in order to establish liability; or to support or resist anyjudgment or relief.[21] Section 10 provides a wide and inclusive definition of what amounts to"proceedings in Parliament". It relevantly provides as follows:10 Proceedings in Parliament defined(1) Proceedings in Parliament, for the purposes of Article 9 of the Bill ofRights 1688, and for the purposes of this Act, means all words spokenand acts done in the course of, or for purposes of or incidental to,the transacting of the business of the House or of a committee.(2) The definition in subsection (1) must be taken to include the following:(a) the giving of evidence (and the evidence so given) beforethe House or a committee:(b) the presentation or submission of a document to the House ora committee:(c) the preparation of a document for purposes of or incidental tothe transacting of any business of the House or of a committee:(d) the formulation, making, or communication of a document, underthe House's or a committee's authority (and the document soformulated, made, or communicated):(e) any proceedings deemed by an enactment to be (or a thing saidor produced, or information supplied, in an inquiry orproceedings, if an enactment provides the thing or information isprivileged in the same way as if the inquiry or proceedings were)for those purposes proceedings in Parliament.(3) In determining under subsection (1) whether words are spoken or actsare done for purposes of or incidental to the transacting of the businessof the House or of a committee, words spoken or acts done for purposesof or incidental to the transacting of reasonably apprehended businessof the House or of a committee must be taken to fall within subsection(1).[22] Since "document" is defined in s 5 to include anything containing writing,s 10(2)(b), (c) and perhaps (d) all confirm that the preparation of and introduction intothe House of a bill is a "proceeding in Parliament". The overall effect of these twosections is therefore that no Court may receive evidence or hear submissions abouta bill intended to:(a) question the intention of the Bill or a person associated with it;31 or(b) invite the drawing of any inference about the meaning or effect of suchBill;32 or(c) seek some form of relief in relation to the Bill.33[23] The proceedings as currently drafted offend each of these three heads.They require an inquiry into the intention of the KOS Bill and of the Prime Minister("a person associated" with the Bill) in advancing it; they require the Court to drawinferences about the effect of the Bill on the rights pleaded; and they seek declaratoryrelief in relation to the rights consistency the Bill's terms and purposes.The authorities[24] While the majority of the Supreme Court in the Ngāti Whātua decision sounded"a note of caution" about undue judicial deference to parliamentary proceedings wherethe decisions in question are somewhat distant from, for example, the decision ofa Minister or Cabinet to introduce a bill into the House, there was certainly nosuggestion that it would be unduly deferential of the courts to refuse to enquire intothe potential rights impact of a bill before the House.34[25] The caution from the majority in Ngāti Whātua related to a question aboutwhether a challenged decision was outside the court's purview simply because it mightpotentially be the subject of legislation in the future.35 It is, the majority said,"the function of the courts to make declarations as to rights".36 The first four of sixdeclarations sought by Ngāti Whātua related to the relevance of tikanga in the Treaty31 Parliamentary Privilege Act 2014, s 11(a)–(b).32 Section 11(c).33 Section 11(e).34 Ngāti Whātua Ōrākei Trust, above n 21, at [46].35 At [46].36 At [46].settlement process and the extent to which tikanga should affect the way the Crowndealt with other iwi in the Tāmaki isthmus. The relief was couched in broad andrelatively abstract propositions unrelated to any particular settlement agreementbetween the Crown and other iwi.37 Thus, the comity principle was not undermined,and those first four heads of relief remained. But the last two heads sought reliefspecific to actual land assets on the isthmus which were intended to be transferred toother iwi in proposed settlements. The majority struck those heads out.38 That isbecause, the majority found, those aspects were specific to settlements which wouldinevitably be given effect by legislation.39 This was despite the fact that no bills hadbeen introduced into the House to give effect to these settlements.[26] The appellants called in aid the judgment of Elias CJ in Ngāti Whātua.Her focus was on "declarations of existing legal right".40 In particular, she consideredthat "[p]arliamentary freedom of debate and in its proceedings is unaffected bythe judicial responsibility to hear and determine rights and interests protected bylaw".41 But, as we have noted, the Chief Justice referred to the High Court decisionin Comalco Power.42 There Comalco Power (New Zealand) Ltd claimedthe introduction of price fixing legislation was an anticipatory breach of contract.The High Court Judge found that such claim could not be entertained in the courts.43The Chief Justice agreed that the High Court had been correct.44 She was clear thatthis would have offended against the principle discussed by Cooke P in Te Runanga oWharekauri Rekohu. It was an attempt to "dictate, by declaration or a willingness toaward damages or any other form of relief, what should be placed beforeParliament".45 The Chief Justice did not go so far as to find that it is open to the courtsto make declarations about the rights-consistency of draft legislation before the House.[27] The simple point is, courts may declare rights, and these may relate tothe rights-consistency of government action, and even proposed government action.37 See [29(a)]–[29(d)].38 At [66].39 At [65]–[66] and [29].40 At [120]; see also [119].41 At [119].42 Comalco Power, above n 22.43 At 17.44 Ngāti Whātua Ōrākei Trust, above n 21, at [120].45 At [120], citing Te Runanga o Wharekauri Rekohu, above n 23, at 308.But they may not relate to the rights-consistency of proposed legislation. For example,a government proposal to exercise an existing lawful power in a particular way maybe the subject of court declarations. The difficult area is where the proposedgovernment action is really a proposal to legislate. In principle, declaratoryproceedings of this nature are simply not permitted. The point at which a governmentproposal crystallises into what is in substance a proposal to legislate may be a matterfor debate. But it is not one that needs to be resolved in this case.[28] The Thompson case also related to Māori fisheries allocation.46 The appellantsare correct that the Court in that case was prepared to discuss in some detailthe consistency between the 1992 Settlement Deed and the Māori Fisheries Bill whichwas to implement the allocation of quota to iwi. Specifically, the majority wereprepared to criticise the size of a fund proposed to be set aside for urban Māoriinterests, and the degree of discretion iwi could exercise over the future of the fund.47But the majority still considered it inappropriate to make any declarations aboutthe Bill.48 Hammond J in dissent considered that the Court should not be engaged atall in an enquiry in which Parliament is also separately engaged.49[29] That said, there was an important difference between that case and the presentappeal. There, Te Ohu Kaimoana (as then constituted) had prepared an allocationproposal in accordance with the 1992 Settlement Deed. It had then asked the Houseto enact it, in order to end inter-iwi litigation around it. The declarations the plaintiffssought were primarily against Te Ohu Kaimoana's proposal rather than the MāoriFisheries Bill. Thus, the draft legislation had some of the characteristics of a privatebill.[30] But the important point is that Thompson predates the Parliamentary PrivilegeAct. Had that case arisen today, the Court would plainly have been precluded by s 11from inquiring into the subject matter of the Māori Fisheries Bill or granting relief inrespect of it. Whether the same would have applied to Te Ohu Kaimoana's proposalprior to obtaining government support for it, or whether it would have been unduly46 Thompson, above n 25.47 At [179]–[180], [184]–[185] and [187]–[189].48 At [196].49 At [237].deferential to refuse to consider it in those circumstances are not matters we need toexpress a view on in this appeal.[31] Given the majority's reticence on those facts, it must follow that to the extentthe proceeding in this case asks the Court to inquire into and grant relief in respect ofa bill actually before the House, it cannot be allowed to proceed.The special position of BORA rights[32] The appellants place particular emphasis on the expected impact ofthe Sanctuary on their BORA rights. But the fact that the relief sought in respect ofa bill relates to BORA rights does not alter the position. As we have noted, s 4(1)(b)of the Parliamentary Privilege Act refers to the principle of comity betweenthe "separate and independent legislative and judicial branches of government".One of the legislature's functions is to consider, debate and enact legislation.Where the Attorney-General considers any bill before the House to be inconsistentwith BORA rights and freedoms, s 7 of BORA requires the Attorney-General to advisethe House accordingly. Standing Order 265 provides a special procedure by whichthe Attorney-General must discharge this responsibility. As this Court found inBoscawen v Attorney-General, the only means by which a bill's BORA consistencymay be considered is by way of the Standing Order 265 procedure.50 The prospectthat both the Attorney-General and the courts might simultaneously be engaged inthe same inquiry, including the risk they might disagree, demonstrates why in practicalterms, the comity principle affirmed in the Parliamentary Privilege Act would besquarely engaged. The appellants' claim in this case requires exactly that kind ofparallel inquiry.Declarations of right[33] That said, the reasoning of both the majority and Elias CJ in Ngāti Whātua isconsistent with the proposition that the courts may make declarations of existing right,interest or entitlement whether or not there is a bill before the House which may affectthem in some way. Such relief is not "in relation to parliamentary proceedings", in50 Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229 at [39]. See also AwatereHuata v Prebble [2004] 3 NZLR 359 (CA) at [55].the sense provided for by in the Parliamentary Privilege Act. It does not amount toan interference by the courts in Parliament's "proper sphere of influence andprivileges" because such declarations would be about existing rights, interests orentitlements, and not what Parliament may be proposing to do in relation to them.51The terms of s 4(1)(b) of the Parliamentary Privilege Act are apposite here. Comity isa principle of "mutual respect and restraint" between the legislative and judicialbranches as to their respective constitutional functions.52 It is the function of courtsto adjudicate on rights and entitlements.[34] In very different circumstances, the English courts have adopted a similarapproach. For example, in Willow Wren Canal Carrying Co Ltd v British TransportCommission, the English High Court refused to stay a proceeding commenced bya canal barge company against the canal owner, despite the fact that there was a billbefore the House relieving the owner of the very duties upon which the plaintiff basedits suit.53 The canal owner argued that even if the injunction sought were granted,the Judge would be required to suspend it until the legislative process had taken itscourse.54 Upjohn J said this:55A preliminary objection is taken to [the defendant's application for stay],which is fatal to that application; and it is that, sitting in this court, it is myduty to see that litigants have their cases tried, as they are entitled to, and thatI cannot take into account the possible effect of some Bill now beforeParliament which, if passed into law in its present form, may have some effectupon the rights of the parties. That seems to me to be a correct formulation ofthe law. This court is not concerned with what Parliament may think it wiseto do in relation to the rights of parties, but the plaintiffs are entitled to cometo this court and say, "In the normal course of events our action will very soonbe ripe for hearing. We desire that the court should hear it."Of course, if subsequently to that Parliament in its wisdom by some enactmentaffects the rights of the parties even to the extent of modifying or abrogatingthe effects of any judgment which the plaintiffs may be fortunate enough toobtain, no one doubts the right and power of Parliament to do so. But it isplain that it is not right for this court either now or at the hearing to take intoaccount the possible effect of some Bill at present before Parliament which,so far as this Court is concerned, may never be passed into law at all, or, ifpassed into law, may ultimately contain provisions which do not affectthe rights of the parties before the court at all. In other words, it is a matter of51 Parliamentary Privilege Act, s 4(1)(b).52 Section 4(1)(b) (emphasis added).53 Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 WLR 213 (Ch).54 At 215.55 At 215–216.speculation on which this court will not embark as to whether a Bill at presentbefore Parliament will be passed into law in its present form.[35] The Judge went on to note that "[a]uthority is not wanting for thatproposition".56 That decision has something of the flavour of the interlocutorydecision of Beattie J in Fitzgerald v Muldoon,57 where Mr Fitzgerald sought tochallenge the lawfulness the Prime Minister's announcement purporting to suspendstatutory obligations. The Judge found that the fact that a bill would shortly be broughtbefore the House to give effect to that announcement did not preclude grantingMr Fitzgerald a fixture to hear the case.58Hypothetical declarations[36] The Crown then argued that the appellants' claim should still be stayed even ifthey amended it to meet the above principles. If they removed reference to the KOSBill, the claim would be rendered hypothetical because it would be "dangerouslyuntethered to facts". Further, the only government action relevant to any question ofNgāti Mutunga's fishing rights in this case was legislative.[37] We do not think the position is quite that straightforward. In light of the termsof the Crown's draft statement of defence in this case, the existence of at least someof the rights said to be vested in the appellants are contested. Relevant facts wouldrelate not to the legislation but to whether the rights are made out. They might includethe background to the 1992 settlement, the nature of the mana and kaitiakitanga rightsof Ngāti Mutunga, and so forth. It could not thus be said that the proceeding wasuntethered to facts. The proceeding would not necessarily therefore be renderedacademic or theoretical if the KOS Bill is no longer the centre piece of the claim.[38] Indeed, as the learned authors of The Declaratory Judgment have stated, evenif an application for declarations does raise merely hypothetical questions forconsideration of the court, that is not of itself a basis for declining jurisdiction (or in56 At 216, citing Attorney-General v Racecourse Betting Control Board [1935] Ch 34 (CA); and at217, citing British and Colonial Furniture Co Ltd v William McIlroy Ltd [1951] 1 TLR 295 (CA).57 Fitzgerald v Muldoon SC Wellington A118/76, 19 May 1976.58 At 4–5.the present case granting a stay for the lack of it).59 Rather, it may be a ground forthe court choosing to exercise its discretion not to grant the relief sought, all otherthings considered.60Repleading[39] Following our hearing, and in light of the foregoing principles which weretraversed with counsel at the hearing, the appellants were invited to takethe opportunity to provide a draft recasting of their claim for our further consideration.They filed a draft amended statement of claim. We turn now to consider that.[40] A single proposed new cause of action was pleaded to shift focus fromthe KOS Bill to prior ministerial action. It pleaded the rights inconsistency ofthe announcement of 29 September 2015 of the then Prime Minister that New Zealandwould create an ocean sanctuary in FMA 10. The draft claim then pleads:Any and all acts or omissions of the Crown prohibiting fishing andaccompanying access by the plaintiffs and Iwi Māori to all the rights pleadedherein expropriates, offends against, undermines or otherwise fails to honourand protect all the rights and freedoms identified [41] This proposed repleading fails to correct the flaw in the primary pleading, andindeed introduces a further flaw.[42] The further flaw is that the Crown, even on the appellants' pleading, does notitself prohibit Māori from fishing in FMA 10. Only Parliament can do that because itrequires an amendment to the law that currently applies to fishing in that fisherymanagement area. Unlike the press statement in question in Fitzgerald v Muldoon,the Prime Minister did not declare on 29 September 2015 that commercial fishing inFMA 10 is prohibited with immediate effect. Rather, he announced that legislationwould be brought forward to give effect to such prohibition. The announcementchallenged as to its legality was not an act prohibiting fishing as pleaded, and neverpurported to be.59 Lord Woolf and Jeremy Woolf The Declaratory Judgment (4th ed, Sweet & Maxwell, London,2011) at [4–36].60 See for example Ching Garage Ltd v Chingford Corp [1960] 1 WLR 947 (CA) at 955.[43] That brings us to the primary flaw in the pleading. It is the same flaw identifiedby this Court in Te Runanga o Wharekauri Rekohu.61 The Prime Minister'sannouncement referred to in the amended pleading was in reality an announcementthat the government intended to legislate for the stated outcome. As this Court said inTe Runanga o Wharekauri Rekohu, the courts will not make declarations purporting tointerfere in the government's legislative agenda. If there were any doubt aboutthe correctness of that proposition prior to 2014, such doubt is removed by the termsof ss 10 and 11 of the Parliamentary Privilege Act.[44] It follows that even a claim broadly on the recast terms proposed bythe appellants cannot proceed.[45] We note finally that it may well have been possible for the appellants to repleadtheir claim so as to focus entirely on their own rights and entitlements withoutreference to the proposed sanctuary, although we acknowledge that this would requirethem to walk a narrow and fine line in light of the authorities. The appellants havechosen not to avail themselves of that opportunity.Appropriate relief[46] As mentioned, the Crown sought a stay of the proceedings pending enactmentof the KOS Bill. But is a stay appropriate? It must be remembered that the claimrelates to the KOS Bill not the KOS Act. Such claim can never be consistent with s 11.Whether a claim can be brought in respect of the KOS Act, should it be enacted, raisesdifferent issues. That would be a different claim in form and substance.Despite the fact that the Crown only seeks a stay, on reflection we consider that wouldnot be appropriate. The correct response in terms of the Parliamentary Privilege Actis to strike the claim out.62Result[47] The appeal is dismissed.61 Te Runanga o Wharekauri Rekohu, above n 23.62 Court of Appeal (Civil) Rules 2005, r 48(4). See also High Court Rules 2016, r 15.1(1)(a).[48] The claim is struck out.[49] The respondent is entitled to costs on a band A basis certified for secondcounsel with usual disbursements.Solicitors:Burley Attwood Law, Tauranga for First and Second AppellantsCrown Law Office, Wellington for Respondent