NEHEMIA v THE AUCKLAND DISTRICT MĀORI COUNCIL [2017] NZHC 1998

NEHEMIA v THE AUCKLAND DISTRICT MĀORI COUNCIL [2017] NZHC 1998 [21 August 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2016-404-000145[2017] NZHC 1998IN THE MATTER of the Declaratory Judgments Act 1908and the Māori Community DevelopmentAct 1962BETWEEN DANIEL BRASS PENETEREORAHARAHA NEHEMIAApplicantAND THE AUCKLAND DISTRICT MĀORICOUNCILRespondentNEW ZEALAND MĀORI COUNCILInterested PartyHearing: 16 August 2017Counsel: P J Andrews for ApplicantP V Cornegé and G M Davidson for New Zealand MāoriCouncilJudgment: 21 August 2017JUDGMENT OF COLLINS JIntroduction[1] Attendees at a hui held on 28 February 2015 purported to appoint themembers of the Auckland District Māori Council for a three year period. At thesame time those present at the hui purported to appoint three representatives from theAuckland District Māori Council to the New Zealand Māori Council.[2] The process followed on 28 February 2015 did not comply with theprovisions of the Māori Community Development Act 1962 (the Act) that govern theelection and appointment of persons to Māori Associations under the Act.1 This deprived Mr Nehemia and others from the opportunity of being appointed to theAuckland District Māori Council, and from being considered for appointment to the New Zealand Māori Council.[3] This judgment explains why I am granting Mr Nehemia's application forjudicial review and declaring unlawful the steps taken on 28 February 2015 that Mr Nehemia has challenged.Legislative regime[4] The Act "gave statutory recognition and powers to Māori self-governmentinstitutions".2 These institutions are hierarchical, with the New Zealand Māori Council sitting at the apex, followed by District Māori Councils, then regional Māori Executive Committees and finally local Māori Committees.[5] Once elected, Māori Committees appoint representatives to the next level in the hierarchy, namely Māori Executive Committees. In turn, Māori ExecutiveCommittees appoint representatives to District Māori Councils, the next tier in the hierarchy. District Māori Councils are responsible for appointing representatives tothe New Zealand Māori Council.[6] Māori Societies which may be clubs, boards, societies, committees or other groups or bodies of Māori, such as branches of the Māori Women's Welfare League,may also provide representatives to District Māori Councils in certain circumstances,which are explained in paragraph [15(3)] below.[7] The Act prescribes in detail the process for electing members of Māori Committees and appointing persons to the other tiers of Māori Associations. The Actshould be read in conjunction with the Māori Community Development Regulations1 Māori Community Development Act 1962, s 2:Māori Association includes a Māori Committee, a Māori Executive Committee, a District Māori Council, and the New Zealand Māori Council".2 Waitangi Tribunal Whaia Te Mana Motuhake- In Pursuit of Mana Motuhake: Report on theMāori Community Development Act Claim (Wai 2417, 2014) at 1.1963 (the Regulations), which set out further requirements for, amongst other matters, notices for elections.3Māori Committees[8] Māori Committees exist in each Māori Committee area established under the Māori Social and Economic Advancement Act 1945 as a Tribal Committee area.4 AMāori Committee may also come into being through a resolution of a District Māori Council altering the boundaries of any Māori Committee area, amalgamatingtwo or more Māori Committee areas or by constituting a new Māori Committee area, within a district of the District Māori Council.5[9] Each Māori Committee comprises seven members elected in accordance withthe Act,6 unless the District Māori Council resolves that there should be a differentnumber of members,7 or if the number of members is affected by any decision by aDistrict Māori Council to amalgamate two or more Māori Committee areas.8[10] Elections for Māori Committees are held on a triennial basis9 and must be conducted on the last Saturday in February of the election year, or if it is not practicable to hold an election on that date, the election must be held not earlier than seven days before, or 14 days after the last Saturday in February.10[11] Māori Committees must hold a meeting in March of every year in which the triennial election is held in order to appoint representatives to the Māori Executive Committee for the relevant Māori Executive area.113 Māori Community Development Regulations 1963, reg 3.4 Māori Community Development Act 1962, s 8(1).5 Section 8(2).6 Section 9(2).7 Section 9(2).8 Section 9(5).9 Section 19(1).10 Section 19(1) and (2).11 Section 21(1).Māori Executive Committees[12] Each Māori Committee is to appoint two or three representatives to its Māori Executive Committee in accordance with a formula set out in the Act.12[13] Māori Executive Committees are required to hold a meeting in April of everytriennial election year to appoint a prescribed number of representatives to theDistrict Māori Council for its area.13District Māori Councils[14] District Māori Councils preside in each of the Māori Land Court districts and in any other district created by a resolution of the New Zealand Māori Council.14Currently there are 16 District Māori Councils.[15] There are three ways District Māori Councils can be constituted:(1) By representatives appointed from each Māori Executive Committeewithin the district.15(2) By representatives appointed directly by each Māori Committee within the district, if the District Māori Council has passed a resolution that designated Māori Committees shall have direct representation to the District Māori Council.16(3) By representatives appointed by Māori Societies within the district ifthe District Māori Council has recognised the Māori Society as "having the status of a Māori Committee, with the right to appoint members to the District Māori Council".1712 Māori Community Development Act 1962, s 12(3).13 Section 21(2).14 Section 14(1) and (2).15 Section 15(2) and (3).16 Section 10A.17 Section 15A(2).[16] Each Māori Executive Committee appoints two members to their DistrictMāori Council, unless there are less than five Māori Executive Committees within a district, in which case each Māori Executive Committee appoints three members.18The number of Māori Committee representatives who may be appointed directly to aDistrict Māori Council is set by the District Māori Council.19 Any Māori Society that is recognised by a District Māori Council as having the status of a Māori Committee is entitled to appoint a single member to the District Māori Council.20New Zealand Māori Council[17] The New Zealand Māori Council and the other Māori Associations have thegeneral functions set out in s 18 of the Act.21 In addition, the New Zealand Māori Council is required to consult with other Māori Associations:2218 Māori Community Development Act 1962, s 15(3).19 Section 10A.20 Section 15A(3).21 18 General functions of the New Zealand Māori Council(1) The general functions of the New Zealand Māori Council, in respect of all Māoris, shallbe–(a) To consider and discuss such matters as appear relevant to the social and economicadvancement of the Māori race:(b) To consider and, as far as possible, give effect to any measures that will conserveand promote harmonious and friendly relations between members of the Māori raceand other members of the community:(c) To promote, encourage, and assist Māoris—(i) To conserve, improve, advance and maintain their physical, economic, industrial, educational, social, moral, and spiritual well-being;(ii) To assume and maintain self-reliance, thrift, pride of race, and such conduct as will be conducive to their general health and economic well-being;(iii) To accept, enjoy, and maintain the full rights, privileges, and responsibilities of New Zealand citizenship;(iv) To apply and maintain the maximum possible efficiency and responsibility in their local self-government and undertakings; and(v) To preserve, revive and maintain the teaching of Māori arts, crafts, language, genealogy, and history in order to perpetuate Māori culture:(d) To collaborate with and assist State Departments and other organisations and agencies in—(i) The placement of Māoris in industry and other forms of employment;(ii) The education, vocational guidance, and training of Māoris;(iii) The provision of housing and the improvement of the living conditions ofMāoris;(iv) The promotion of health and sanitation amongst the Māori people;(v) The fostering of respect for the law and law-observance amongst the Māoripeople;(vi) The prevention of excessive drinking and other undesirable forms of conductamongst the Māori people; and(vii) The assistance of Māoris in the solution of difficulties or personal problems.22 Māori Community Development Act 1962, s 18(2) and (3).(1) on such matters as may be referred to it by any of those bodies or as may seem necessary or desirable for the social and economic advancement of Māori; and(2) may make such representations to the Minister of Māori Affairs or others as may seem to it to be advantageous to Māori.[18] The New Zealand Māori Council is also responsible for declaring District Māori Council areas23 and for overseeing District Māori Councils. The oversight that the New Zealand Māori Council has over District Māori Councils is set out ins 16(2) of the Act which states:16 Functions of District Māori Councils(2) Each District Māori Council shall be subject in all things to the control of the New Zealand Māori Council and shall act in accordance with all directions, general or special, given to it by the New Zealand Māori Council.[19] Today, the New Zealand Māori Council consists only of members appointed by District Māori Councils.24 Each District Māori Council is required to appoint three members to the New Zealand Māori Council.25[20] As can be seen, the Act calibrates the process for election of MāoriCommittees and the consequential appointment of representatives to the otherMāori Associations in the hierarchy set out in the Act. The staged sequencing of theelections of Māori Committees and the appointment of persons to other MāoriAssociations in the structural hierarchy in the Act is designed to ensure a transparentand a democratic process for the representation of Māori in Māori Associations.23 Māori Community Development Act 1962, s 14(1).24 At the time of the passing of the Act, the members of the New Zealand Māori Council ofTribal Executives established under s 13E of the Māori Social and Economic Advancement Act 1945 were also deemed to be members of the New Zealand Māori Council: s 17(4).25 Māori Community Development Act 1962, s 17(3).The evidence[21] On 5 December 2014, the Waitangi Tribunal delivered to Ministers its report, Whaia te Mana Motuhake – In Pursuit of Mana Motuhake Report on the MāoriCommunity Development Act Claim.26 The claim addressed by that report wasinitiated by members of the New Zealand Māori Council and District MāoriCouncils and challenged, amongst other matters, the Crown's approach to reviewingthe Act. In its report the Waitangi Tribunal raised concerns about the way in whichelections to various Māori Associations were taking place.[22] Mindful of the Waitangi Tribunal's criticisms of the way elections were being conducted under the Act, Ms Waterreus, the then Secretary of the New ZealandMāori Council wrote to District Māori Councils on 9 December 2014 setting out insignificant detail the requirements of the Act for conducting the triennial elections ofmembers of Māori Committees which were scheduled to take place inFebruary 2015. At the same time Ms Waterreus sought from District Māori Councils details of current and new Māori Committees in their districts and for those details tobe filled out on a form by 22 December 2014. The Auckland District Māori Council was the only District Māori Council that failed to provide Ms Waterreus with anupdated list of the Māori Associations in its district.[23] On 11 February 2015, Ms Waterreus emailed Mr Tamihere, a representativeof the Auckland District Māori Council and Ms Te Hira, the Secretary of the Auckland District Māori Council, asking for information on the Māori Committeeelections that were due to take place later that month so that Ms Waterreus could prepare a notice for publication in the New Zealand Herald advertising the elections. Later that day Ms Waterreus received a response from Mr Tamihere on the letterheadof Te Whānau o Waipareira, a Māori Committee, saying that "all our networks areadvised" and indicating Ms Te Hira would "sort out the advertising notice immediately" and that they would "all meet at the same venue".[24] The following day, Ms Te Hira sent Ms Waterreus the pānui/public notice (the notice) of the "triennial meeting" and an agenda under the name of the Auckland26 Report on the Māori Community Development Act Claim, above n 2.District Māori Council. Ms Te Hira said the notice had been circulated to all Māori Committees, Māori Wardens,27 Māori Women's Welfare League members and marae in the Auckland District Māori Council district. The notice said the Auckland District Māori Council "triennial meeting" would take place on Saturday 28February 2015, between 11.00 am and 1.30 pm at the address of Te Whānau oWaipareira in Henderson. The agenda, which was separate from the notice, includedthe following reference to the election of the Auckland District Māori Council:8. Triennial Election of Te Kaunihera Māori o Tāmaki Makaurau Executive for 2015-2018.[25] The response from Ms Te Hira immediately triggered concerns for Ms Waterreus who feared the notice sent by Ms Te Hira did not meet therequirements for notification of Māori Committee elections. Ms Waterreus emailedher concerns to Ms Te Hira on 12 February 2015. Mr Tamihere then responded toMs Waterreus saying that the proposed election process was "no problem" and that it was possible to call "all Committees together at the one venue at the one time".[26] Ms Waterreus referred Mr Tamihere's response to Sir Edward Durie(Sir Edward), the Chairperson of the New Zealand Māori Council. He sent an emailto Mr Tamihere on 12 February 2015 explaining his doubts that the processes initiated by Ms Te Hira and Mr Tamihere complied with the Act. Mr Tamihere'sresponse to Sir Edward, also dated 12 February 2015, rejected Sir Edward's concerns and suggested Sir Edward was "interpreting the legislation in a very narrow way".[27] Further emails were exchanged between Sir Edward and Mr Tamihere, and a lawyer engaged by Mr Tamihere. It is not necessary to set out that correspondence.Suffice to say Sir Edward's explanations of the Act's requirements were dismissedby Mr Tamihere.[28] Mr Nehemia is a pastor of the Rātana Church based in Auckland, and an active member of the Ngāti Whātua iwi, a Māori Committee based in Ōrākei (the27 The Minister of Māori Affairs may appoint in respect of any Māori District Council one or more Māori Wardens to carry out duties in that district. A Māori Warden must be nominated forappointment by the relevant District Māori Council; Māori Community Development Act 1962,s 7(1) and (2).Ōrākei Māori Committee). Mr Nehemia was seeking a role on the Auckland DistrictMāori Council and to then to be considered for appointment to the New Zealand Māori Council. The Ōrākei Māori Committee received the notice referred to aboveat [24].[29] On 28 February 2015, Mr Nehemia convened the Ōrākei Māori Committee hui. That hui commenced at 10.00 am at the Ōrākei Marae. It was not possible forhim to also attend the meeting advertised to commence at 11.00 am at Te Whānau oWaipareira in Henderson. Mr Nehemia therefore arranged for two members of theŌrākei Māori Committee to go to the meeting at Henderson. One of those peoplewas Ms Pene, who, in her affidavit explains that she and her mother went to Te Whānau o Waipareira premises on 28 February 2015 at 10.30 am and remainedthere until about 1.00 p.m. They observed the premises were closed. A caretaker at the premises advised them no meeting was taking place there that day.[30] Mr Nehemia and Ms Waterreus have referred in their affidavits to a documentheaded "Unconfirmed Tāmaki Makaurau District Māori Council draft Triennial Minutes 28 February 2015 a.m." (draft minutes). The draft minutes say that a huiwas held at the premises of Te Whānau o Waipareira on 28 February 2015 at10.00 am. Ms Pene's evidence raises serious questions about whether the hui in facttook place at the venue and time suggested in the draft minutes. I cannot however resolve the conflicting evidence without having the opportunity to assess the credibility of those who could give evidence about when and where the hui took place.[31] The draft minutes say the Chairperson of the hui was Ms Titewhai Harawira, who at the time was the incumbent Chairperson of the Auckland District MāoriCouncil. Eighty-two people are said to have been present at that meeting. The draft minutes say that Ms Harawira was elected as Chairperson of the Auckland DistrictMāori Council for the next three years and Ms Harawira, Mr Tamihere and Ms Te Hira were appointed the Auckland District Māori Council representatives on the New Zealand Māori Council. The draft minutes also show that eleven Māori Wardens and Māori Committees were approved as members of the Auckland District Māori Council district.[32] Mr Nehemia has explained in his affidavit that the process followed on 28 February 2015 deprived him and others from being appointed to the AucklandDistrict Māori Council and from being considered for appointment to the New Zealand Māori Council. Mr Nehemia's concerns are supported by the co-chairs of the North Shore Te Raki Paewhenua Māori Committee, who consider they were alsodisenfranchised by the process followed on 28 February 2015.[33] Ms Waterreus has raised a number of concerns about the contents of the draft minutes. It is not necessary to traverse all of the problems identified by Ms Waterreus and by Mr Cornegé, on behalf of the New Zealand Māori Council. Suffice to record that the New Zealand Māori Council is satisfied that the processes followed on 28 February 2015 were unlawful for multiple reasons, including:(1) Many of the 2015 election meetings of Māori Committees within theAuckland district were not undertaken in accordance with the Act, or the Regulations.(2) It would appear from Ms Waterreus' evidence that only two Māori Committees recognised by the New Zealand Māori Councilprior to 28 February 2015 actively participated in the hui held on 28 February 2015.(3) A large number of those who are referred to in the draft minutes ashaving participated in the Auckland District Māori Council electionprocess were not lawfully entitled to do so.[34] The New Zealand Māori Council was also concerned that the Auckland District Māori Council failed to comply with its request for information about MāoriCommittees in the Auckland district, thereby breaching s 16(2) of the Act.The pleadings[35] Mr Nehemia commenced his proceedings in the Auckland High Court on 4 February 2016. He initially sought a declaration but amended his claim in May 2016 to one of a declaration and judicial review. Specifically Mr Nehemia sought:(1) a declaration "that the election process conducted by the Auckland District Māori Council at a hui held on 28 February 2015 was invalid"; and(2) an "order" that "the election process be recommenced from the start".[36] Mr Nehemia's claim is based on the contentions that the appointments made on 28 February 2015 to the Auckland District Māori Council were unlawful and orbreached his legitimate expectations.[37] Mr Nehemia now limits the relief he seeks to a declaration that the appointments made on 28 February 2015 were invalid and of no effect. Mr Nehemia accepts that there is now no point in ordering a new election for the 2015 triennial period. His objective is to ensure that the election scheduled for February 2018 and subsequent processes comply with the Act.[38] The Auckland District Māori Council filed notices of defence toMr Nehemia's statements of claim. On 10 February 2017 the proceeding wastransferred by consent to the Wellington Registry so as to be managed with another proceeding, Tamihere v The New Zealand Māori Council that had been commenced in the Wellington Registry but has since been discontinued.[39] On 25 May 2017, the Auckland District Māori Council was granted leave to withdraw its defence on the basis that both sides to the dispute were endeavouring toresolve their differences by "a tikanga called Te Hou Hou Rongo (bring peace and harmony in a time of dissension)".2828 Memorandum withdrawing defence, 12 May 2017 at [4].[40] On 3 July 2017, the Court granted an application by the New Zealand MāoriCouncil to be joined in the proceeding as an interested party.[41] In the hearing before me, the application by Mr Nehemia was supported bythe New Zealand Māori Council and not opposed by the Auckland District MāoriCouncil.Analysis[42] If the draft minutes reflect what actually transpired on 28 February 2015, then the Auckland District Māori Council failed to comply in many material respects withthe steps set out in the Act for the appointment of its members. Even if the draft minutes do not accurately reflect what transpired, the process followed in the appointment of the current members of the Auckland District Māori Council and its representatives to the New Zealand Māori Council failed to comply with therequirements of the Act.[43] The organisers of the 28 February 2015 hui compressed the timeframes prescribed in the Act for the election of Māori Committees and the appointment of members to the Auckland District Māori Council. Mr Andrew, counsel forMr Nehemia, and Mr Cornegé made submissions about the motives of the organisers of the 28 February 2015 hui. I cannot speculate on the motives of those responsible for the hui. I will confine my judgment to the lawfulness of what transpired.[44] The legislative regime clearly provided for the election of Māori Committeeson 28 February 2015 (or seven days before and not later than 14 days after 28 February 2015).29 Māori Committees were then required to hold a meeting inMarch 2015 for the purpose of appointing representatives to their relevantMāori Executive Committee.30 Māori Executive Committees were then in turnrequired to meet in April 2015 to appoint representatives to the Auckland DistrictMāori Council unless the direct appointment process set out in s 10A of the Act wasadopted.31 Any Māori Societies recognised by the Auckland District Māori Council29 Māori Community Development Act 1962, s 19(1) and (2).30 Section 21(1).31 Section 21(2).as having the status of a Māori Committee were required to appoint a singlerepresentative to the Auckland District Māori Council in April 2015.32 TheAuckland District Māori Council was then required to meet in May 2015 to appoint representatives to the New Zealand Māori Council.[45] The Auckland District Māori Council failed to comply with the steps required by the Act to appoint its members and its representatives to the New Zealand MāoriCouncil. As a consequence, Mr Nehemia and others were deprived of the opportunity to become members of the Auckland District Māori Council. They werealso deprived of the opportunity to be considered to become members of the New Zealand Māori Council.[46] The New Zealand Māori Council submitted that a number of consequenceswill follow if Mr Nehemia's application succeeds. It is however, not for me at thisjuncture to comment on the possible consequences of granting a declaration along the lines sought by Mr Nehemia.[47] The fact there was a considerable delay between the events complained of and the issuing of proceedings is a factor I take into account in deciding whether ornot to exercise my discretion to grant Mr Nehemia's application.33 Mr Nehemia has recognised this concern by modifying the relief he seeks to a declaration. He is now focused upon the 2018 triennial elections and wishes to ensure the steps in the Act are complied with in the future. The approach taken by Mr Nehemia, combined withthe support he has received from the New Zealand Māori Council convinces me thata declaration should be issued pursuant to s 16(1)(b) of the Judicial Review Procedure Act 2016. That declaration will be:The appointment of the Auckland District Māori Council members on28 February 2015 failed to comply with the requirements of the Act and was therefore unlawful. The appointment by the Auckland District Māori Council of its representatives to the New Zealand Māori Council on28 February 2015 also failed to comply with the Act and was unlawful.32 Māori Community Development Act 1962, s 15A(3).33 Judicial Review Procedure Act 2016, s 18; see for example, Fraser v State Services Commission[1984] 1 NZLR 116 (CA) at 123; Ngāti Apa Ki Te Waipounamu Trust v Attorney-General [2006] UKPC 49, [2007] 2 NZLR 80 at [63] and [67] and Hauraki Catchment Board v Andrews [1987] 1 NZLR 445 (CA) at 449.Costs[48] Mr Nehemia was granted legal aid for this proceeding. He is therefore obliged to seek costs. Costs are awarded on a scale 2B basis.[49] Mr Cornegé appropriately acknowledged that it would not be appropriate forthe New Zealand Māori Council to seek costs as it sought to be joined to theproceeding as an interested party. Thus, costs are only awarded to Mr Nehemia.______________D B Collins JSolicitors:Ellis Law, Auckland for ApplicantWoodward Law Offices, Lower Hutt for New Zealand Māori Council