MANIAPOTO v MANIAPOTO MĀORI TRUST BOARD [2022] NZHC 455

MANIAPOTO v MANIAPOTO MĀORI TRUST BOARD [2022] NZHC 455 [15 March 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2021-419-254[2022] NZHC 455UNDER Section 13 of the Senior Courts Act 2016and Part 18 of the High Court Rules 2016IN THE MATTER of breach of fiduciary relationship orobligation and estoppelBETWEEN HAROLD MANIAPOTOPlaintiffAND MANIAPOTO MĀORI TRUST BOARDDefendantHearing: 24 February 2022Appearances: C Tennet and D Maniapoto for the PlaintiffN Milner for the DefendantG Melvin and I Wilson for the Attorney-GeneralJudgment: 15 March 2022JUDGMENT OF GAULT JThis judgment was delivered by me on 15 March 2022 at 10:00 ampursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors:Mr C Tennet, Barrister, Lower HuttMs D Maniapoto (plaintiff's instructing solicitor), KihikihiMr M Mahiuka and Mr N Milner, Kahui Legal, WellingtonCopy to:Mr G Melvin, Ms L Theron and Ms I Wilson, Crown Law, Wellington[1] Mr Maniapoto applies for an interim injunction and freezing orders against theManiapoto Māori Trust Board (MMTB)1 in relation to settlement of the historic claimsof Maniapoto against the Crown.[2] The application for interim injunction initially filed on 26 October 2021 soughtto restrain MMTB from signing a deed of settlement with the Crown. However,following advice that the deed had already been signed before the application wasserved, Mr Maniapoto filed an amended application dated 26 November 2021.[3] In the meantime, Mr Maniapoto also filed a without notice interlocutoryapplication for interim freezing injunction on 19 November 2021. Lang J did notconsider it appropriate to deal with that application on a without notice basis anddirected that it be served.2Factual background[4] Mr Maniapoto, of Ngāti Te Uaki, Ngāti Te Maawe (ki Mangatoatoa) and NgātiParetekawa ki Mangatoatoa, of the Ngāti Te Kanawa section of Maniapoto,Mangatoatoa Pā, Te Awamutu, has filed affidavits in support of the applications.In summary, his evidence is as follows.[5] He is the lead claimant in Wai 800, lodged with the Waitangi Tribunal on behalfof all Maniapoto descendant whānau and hapū, and the WAI 2013, 2915, 2313, 2314,and other claims lodged on behalf of Ngāti Paretekawa, Ngāti Rangiwaero-Ngutu,Ngāti Te Uaki, Ngāti Te Maawe, and associated hapū, all within the Maniapoto ki TeRaki tribal district.[6] He is the chairman of the roopu Maniapoto ki Te Raki (MKTR). MKTR is theTreaty claims/settlement body established for the purpose of co-ordination andorganisation of hapū and individual claims in the Waitangi Tribunal's Te Rohe PōtaeInquiry, concerning their lands and interests in the Northern district of NgātiManiapoto from the Waipa River in the south to Nukuhau in the north, and Pirongia1 MMTB was established by the Maniapoto Maori Trust Board Act 1988.2 Minute dated 22 November 2021.in the west to Rangitoto-Wharepuhunga in the east. Mr Maniapoto was electedchairperson of MKTR in 2007.[7] Mr Maniapoto is also one of the MKTR mandated representatives, andchairman of the Te Kawau Mārō (TKM) Mandate Body that was established to seek amandate and negotiate a settlement for Maniapoto, Rereahu, Te Ihingarangi and otheriwi and hapū including Ngāti Apakura interests in the Rohe Pōtae. TKM is thegrouping that the communities identified as being authorised to negotiate the claimsagainst the Crown.[8] In accordance with their tikanga, MKTR rangatira have authority and themandate to represent the claimant groups and hapū within the MKTR region.[9] Mr Maniapoto's engagement and representation in this claim stems from hislong-standing service as an uri of Maniapoto, and through the recognition of MKTRas a representative body of the hapū and claimant groups within its region. He says itwas also illustrated in the Te Rohe Pōtae Inquiry, in particular through the progressionof the WAI 800 claim that was filed for the benefit of all of Ngāti Maniapoto.[10] In 2013, Maniapoto hapū and claimant cluster groups and MMTB commenceddiscussions regarding the establishment of a body to represent Maniapoto in settlementnegotiations. They prepared a memorandum of understanding signed on 3 July 2013(MOU) to govern the way they would act with one another in the Maniapoto settlementnegotiations. The MOU stated their purpose was to complete the preparation andimplementation of a Crown approved Maniapoto Mandate Strategy until the mandatedbody decided the group was no longer required. Mr Maniapoto says they did this toensure that they all acted together as one on behalf of all WAI claimants, hapū andManiapoto and to ensure that there was only one large natural group (LNG) which theCrown wanted as a body to negotiate with.[11] In mid-2013, the Crown commenced formal engagement with the group todevelop and complete the mandate strategy process.[12] In 2014, MMTB, Kaunihera Kaumātua o Maniapoto, and the hapū andclaimant community representatives established the Maniapoto Mandate StrategyGroup (MMSG) to complete the preparation of a Maniapoto mandate strategy.[13] MMSG formed the TKM Mandate Body as the recognised body to receivemandate and negotiate and settle all treaty claims for Maniapoto, Rereahu andTe Ihingarangi in Te Rohe Pōtae and Maniapoto LNG.[14] MMSG and TKM signed a governance statement on 19 January 2015addressing the governance, consultation and decision-making processes of TKM. Thisindicated TKM was to work on behalf of all Maniapoto and was to hold the mandate.[15] After the funding agency, Crown Forestry Rentals Trust (CFRT), agreed toresource the TKM mandate process, TKM sought to engage someone to provideadministrative and project management services for it. On confirmation by CFRT inApril 2015, Mr Maniapoto signed a formal service level agreement (SLA) withMMTB to provide administration support, project and financial management to TKM.[16] The Crown, through the Office for Treaty Settlements (OTS), and CFRTrecognised and endorsed TKM as the body to progress mandate and treaty settlementin the Maniapoto LNG from 2013 to 2016. Mr Maniapoto states that he, TKM andMKTR trusted MMTB implicitly to act in the best interests of TKM who led theManiapoto settlement from 2013 to 2016.[17] However, on 25 January 2016, MMTB announced without warning that itintended to immediately withdraw participation of its two appointed members fromTKM, suspend the SLA immediately and take over the lead role of seeking mandateand settlement for Maniapoto treaty claims in the Maniapoto LNG.[18] Thereafter, TKM received a letter from CFRT outlining concerns that TKMwould no longer be able to maintain approved client status through CFRT as a resultof MMTB's actions. CFRT subsequently brought District Court debt claims againstindividuals including Mr Maniapoto, which were ultimately settled.[19] Although at least 10 meetings were held over the following months, MMTBmaintained its purpose to be the sole and lead authority for any mandate and settlementfor Maniapoto. Despite this, TKM sought to continue to engage with Crown officialsfrom OTS. OTS advised TKM that they would step back from discussions concerningthe Maniapoto mandate representation issue until Maniapoto had settled itsrepresentation issues with MMTB. On 9 September 2016, TKM received a letter fromOTS advising that they were no longer working with TKM toward a Crown endorsedmandate.[20] Despite subsequent hui said to be opposed to an MMTB mandate, MMTBcontinued discussions with the Crown. On 14 December 2016, the Crown recogniseda deed of mandate submitted by MMTB.[21] Since the claimant and hapū community, and their mandated representatives,were advised of the Crown's preference to work with MMTB rather than the hapūrepresentative body, all approaches by hapū and claimants for withdrawal from, orchange to, the mandate and mandate strategy have been rejected by MMTB.[22] All efforts have failed including the Waitangi Tribunal urgency inquiry ofMMTB's mandate. I interpolate that the Tribunal carried out an urgent inquiry intothe Crown's recognition of MMTB's mandate to negotiate the Ngāti Maniapotosettlement following applications made in 2017. The Tribunal reported in December2019.3 It found that the Crown's recognition of MMTB's mandate was reasonablegiven its level of support, infrastructure and extensive involvement in previoussettlements. The Tribunal considered it was also reasonable due to the lengthydiscussions, conducted in good faith, with TKM for over 20 months. However, theTribunal found that aspects of the Crown's process in recognising MMTB's mandatewere not fair nor undertaken in good faith. The Tribunal found that MMTB's deed ofmandate was largely adequate and, provided that the Crown provides distinctrecognition to certain hapū and amends aspects of the withdrawal mechanism, fit forthe purpose of negotiations. The Tribunal made a number of recommendations toremedy or mitigate the claimants' prejudice.3 Waitangi Tribunal The Maniapoto Mandate Inquiry Report (Wai 2858, 2020).[23] On 30 September 2021, Mr Maniapoto was advised that MMTB's ratificationvoting results were accepted by the Crown.[24] On 24 October 2021, Mr Maniapoto was advised that MMTB intended to signthe deed of settlement within a day or hours in a private signing, which he consideredto be a departure from the iwi signing that normally takes place at Parliament with theapology from the Crown.[25] This proceeding followed, with Mr Maniapoto expressing concern that if thedeed was signed then it will be passed as a law and all his and TKM's rights againstMMTB may be extinguished.[26] Since this proceeding was commenced, the Maniapoto Claims Settlement Billwas introduced into Parliament on 3 December 2021 and received its first reading on14 December 2021. The Bill's explanatory note states:The Bill gives effect to certain matters contained in the Deed of Settlement(the Deed), signed on 11 November 2021 between the Crown and Maniapoto.The Deed will settle all the historical Treaty of Waitangi claims of Maniapotoresulting from acts or omissions by the Crown before 21 September 1992.[27] The deed of settlement is not before the Court. I was referred to a clause in theinitialled deed that records that the deed may not be filed as evidence in a court.Interim relief sought[28] The amended application for interim injunction seeks the following relief:(a) An interim order of injunction, from the date the order is made until2021, restraining the respondent/defendant, its servants, agents or employeesincluding any post-settlement governance entity (PSGE) and any member ofthe Maniapoto Māori Trust Board Group or any other entity, body,organisation or person associated or connected in any way to therespondent/defendant, from:(i) signing the Trust Deed to establish the PSGE, Te Nehenehenui Trustor do anything in any way to effect the creation, establishment oroperation of Te Nehenehenui Trust;(ii) appointing trustees or any other person, body, entity or thing to havecontrol, management or authority of any kind of Te NehenehenuiTrust;(iii) disposing of, dealing with or diminishing the value of assets, whethertangible, intangible, cultural or whatever, held by therespondent/defendant, its servants, agents or employees including byany PSGE and any member of the Maniapoto Māori Trust BoardGroup or any other entity, body, organisation or person directly orindirectly associated or connected in any way to therespondent/defendant;(iv) dealing with, engaging, acting on or in any way implementing anyterms, clause, provision, partially or wholly, of any contract,agreement, deed or arrangement signed or agreed to by therespondent/defendant, its servants, agents or employees including byany PSGE and any member of the Maniapoto Māori Trust BoardGroup or any other entity, body, organisation or person directly orindirectly associated or connected in any way to therespondent/defendant;(v) receiving or accepting the transfer of or transferring, or preparing orexecuting any documents for the receipt or transfer, of Crown assets,funds or any other property, whether real, cultural or other, as trustproperty or any other property under the control, management orauthority of Te Nehenehenui Trust or any other entity, organisation orbody under the direct or indirect control of or any connection to therespondent/defendant, its servants, agents or employees including anyPSGE and any member of the Maniapoto Māori Trust Board Groupor any other entity, body, organisation or person directly or indirectlyassociated or connected in any way to the respondent/defendant;(vi) disestablishing, devolving or in any way reducing therespondent/defendant, its servants, agents or employees including anyPSGE and any member of the Maniapoto Māori Trust Board Groupor any other entity, body, organisation or person directly or indirectlyassociated or connected in any way to the respondent/defendant;(vii) preparing or executing any documents in any way to effect, achieveor implement in any [way] the disestablishment, devolving orreducing of the respondent/defendant, its servants, agents oremployees including any PSGE and any member of the ManiapotoMāori Trust Board Group or any other entity, body, organisation orperson directly or indirectly associated or connected in any way to therespondent/defendant;(viii) doing any work or thing whatsoever, including any discussions,meetings, correspondence or anything at all, on progressing the NgātiManiapoto settlement or negotiations or settlement legislation in[any] way;(ix) engaging with or interacting, corresponding or working in any way orsharing any information in any way with the Crown, Ministers and allits staff and agents in progressing the Ngāti Maniapoto settlement ornegotiations or settlement legislation in any way.(b) An interim order of injunction, from the date the order is made until2021, compelling the respondent/defendant to withdraw from all engagementsand settlement activities of any kind, including the settlement legislation, withthe Crown, Ministers and all its staff and agents in order to progress, discussor in any way advance the Ngāti Maniapoto settlement or negotiations orsettlement legislation in [any] way.(c) Such further or other order as is just.[29] The freezing order sought is in the following terms:(a) An interim freezing order restraining the respondent/defendant, its servants,agents or employees including any post-settlement governance entity and anymember of the Maniapoto Māori Trust Board Group or any other entity, body,organisation or person associated or connected in any way to therespondent/defendant, from disposing of, dealing with or diminishing thevalue of assets, whether tangible, intangible, cultural or whatever, held by therespondent/defendant, its servants, agents or employees including any post-settlement governance entity and any member of the Maniapoto Māori TrustBoard Group or any other entity, body, organisation or person associated orconnected in any way to the respondent/defendant, including any contract,agreement, deed or arrangement signed or agreed to, from the date this orderwas made until 2021.(b) An ancillary order compelling the respondent/defendant to disclose all assets,whether tangible, cultural or whatever, and value of those assets, held by therespondent/defendant, its servants, agents or employees including any post-settlement governance entity and any member of the Maniapoto Māori TrustBoard Group or any other entity, body, organisation or person associated orconnected in any way to the respondent/defendant, within five working daysof the date of this order.(c) Such further or other orders as is just.[30] Mr Tennet, for Mr Maniapoto, accepted that the PSGE is a separate entity fromMMTB and is not joined as a defendant, albeit he said it involves the same individualsas MMTB. Mr Milner, for MMTB, said the PSGE is Te Nehenehenui, a separate trustwith its own trust deed dated 17 October 2021. Mr Tennet acknowledged the need toconfine the relief sought. His concern was to restrain MMTB from doing anythingfurther to upset the status quo although he submitted it is unclear what that may be dueto a lack of information from MMTB. Ultimately, Mr Tennet confined the terms ofinterim injunction sought to restraining MMTB directly or indirectly from taking anysteps to transfer assets relating to the specific WAI claims identified in the statementof claim and any money or land that flows from that, or to wind up MMTB.[31] Mr Tennet also disclaimed any intention to stray into territory covered byParliamentary privilege. But he relied on Ngāti Mutunga O Wharekauri Asset HoldingCo Ltd v Attorney-General,4 where the Court of Appeal referred to the authorities,including the Supreme Court decision in Ngāti Whātua Ōrākei Trust v Attorney-General,5 and said:That said, the reasoning of both the majority and Elias CJ in Ngāti Whātua isconsistent with the proposition that the courts may make declarations ofexisting right, interest or entitlement whether or not there is a bill before theHouse which may affect them in some way. Such relief is not "in relation toparliamentary proceedings", in the sense provided for by in the ParliamentaryPrivilege Act. It does not amount to an interference by the courts inParliament's "proper sphere of influence and privileges" because suchdeclarations would be about existing rights, interests or entitlements, and notwhat Parliament may be proposing to do in relation to them.6[32] Although there is overlap between the interim injunction and freezing orderssought, I will deal with them separately given the different principles involved.Interim injunctionGeneral principles[33] The applicable principles are not in dispute. As the Court of Appeal said inCommerce Commission v Viagogo AG:7[30] The principles that govern the grant of interim injunctions under r 7.53and the court's inherent jurisdiction are well settled. The court will usuallyadopt a two-stage approach.8 The first inquiry is whether there is a seriousquestion to be tried. If that threshold is met, the court moves on to considerwhether the balance of convenience favours granting or refusing relief. But asthis Court observed in Klissers Farmhouse Bakeries Ltd v Harvest BakeriesLtd, considerations are marshalled under these (non-exhaustive) heads as "anaid to determining, as regards the grant or refusal of an interim injunction,4 Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General [2020] NZCA 2, [2020]3 NZLR 1 at [33].5 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116.6 Parliamentary Privilege Act 2014, s 4(1)(b).7 Commerce Commission v Viagogo AG [2019] NZCA 472, [2019] 3 NZLR 559.8 See American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL).where overall justice lies. In every case the Judge has finally to stand back andask himself that question."9[31] As Lord Hoffmann said in delivering the advice of the Privy Councilin National Commercial Bank Jamaica Ltd v Olint Corp Ltd:10"The purpose of such an injunction is to improve the chances of thecourt being able to do justice after a determination of the merits at thetrial. The basic principle is that the court should take whichever courseseems likely to cause the least irremediable prejudice to one party orthe other."Serious question to be triedThe claim[34] The statement of claim contains two causes of action. First, a claim thatMMTB was in a fiduciary relationship with Mr Maniapoto and TKM since 2013 andbreached the fiduciary obligations of utmost trust and loyalty owed to Mr Maniapotoand TKM by taking the joint venture for itself.11 Secondly, MMTB is estopped fromtaking further steps in formalising the deed of settlement in relation to the WAI claimsrepresented by Mr Maniapoto and TKM due to breaching its fiduciary obligations.Mr Tennet confirmed that the estoppel claim is one of estoppel by representation. As itis based on breach of fiduciary obligations, it does not require separate considerationon this application.[35] The substantive relief sought in the statement of claim includes a permanentinjunction restraining further steps to formalise the deed of settlement regarding theWAI claims,12 requiring MMTB to remove all WAI claims represented by TKM fromthe deed and release information and documents, and damages. In the alternative, thestatement of claim seeks a declaration that MMTB's signing of the deed is null andvoid.9 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142.10 National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16, [2009] 1 WLR 1405at [16]-[17].11 Mr Tennet said that, if necessary, other members of TKM could be joined as co-plaintiffs.12 The statement of claim has not yet been amended to reflect the fact that the deed of settlement hasbeen signed. Mr Tennet acknowledged the relief sought will need refinement.Fiduciary relationship[36] Mr Tennet submitted that the facts support a fiduciary relationship: in theperiod from 2013 until early 2016, the parties entered into a relationship of obligations,working closely together; Mr Maniapoto, TKM and MKTR trusted MMTB implicitlyto act in the best interests of TKM working up a strategy and leading the Maniapotosettlement; governing documents detailing the reciprocal obligations were signed,including the MOU and governance statement; conflict of interest matters wererecorded at every TKM meeting; and TKM trusted MMTB to manage theirinformation, infrastructure, key stakeholder relationships and support them inmaintaining compliance with the settlement funding contract. I was not referred to thedocuments in any detail.13[37] Mr Milner submitted there is no fiduciary relationship owed to Mr Maniapotoof the nature described in the claim. He submitted there is no serious question to betried. However, he did not seek to dispute the facts alleged by Mr Maniapoto byreference to the affidavit of Mr Ikin, MMTB's Chairperson, no doubt appreciating thata conflict of evidence could not be resolved on affidavits for the purpose of interimrelief. Rather, Mr Milner based his challenge to the claimed fiduciary relationship onthe application of fiduciary principles to those facts.[38] The principles governing whether a relationship is of a fiduciary nature are notin dispute. They were summarised by Kós P for the Court of Appeal in Dold vMurphy:14[52] First, fiduciary duties are assumed responsibilities. Fiduciaryresponsibility may be inferred where the relationship is one of assumed trust,confidence and loyalty. These qualities were identified in a trio ofNew Zealand Supreme Court decisions in the latter-half of the first decade ofthis century: Chirnside v Fay, Paper Reclaim Ltd v Aotearoa International Ltdand Amaltal Corp Ltd v Maruha Corp.15 As Tipping J noted in the Chirnsidedecision, a relationship may give rise to fiduciary duties in two situations.The first is where there is an inherently fiduciary relationship between theparties, such as between solicitor and client, trustee and beneficiary, and13 Nor at all except for the few documents referred to. The electronic bundle exceeded 4,000 pageswithout page numbers or hyperlinking.14 Dold v Murphy [2020] NZCA 313, [2021] 2 NZLR 834 at [52]-[56].15 Chirnside v Fay [2006] NZSC 68, [2007] 1 NZLR 433; Paper Reclaim Ltd v AotearoaInternational Ltd [2007] NZSC 26, [2007] 3 NZLR 169; and Amaltal Corporation Ltd v MaruhaCorporation [2007] NZSC 40, [2007] 3 NZLR 192 at [20].principal and agent.16 The second context is where particular aspects of arelationship that is not inherently fiduciary nonetheless justify it beingclassified as such. As Tipping J has noted:17No single formula or test has received universal acceptance indeciding whether a relationship outside the recognised categories issuch that the parties owe each other obligations of a fiduciary kind.But the Judge went on to note:18[A]ll fiduciary relationships, whether inherent or particular, aremarked by the entitlement of one party to place trust andconfidence in the other. That party is entitled to rely on the other partynot to act in a way which is contrary to the first party's interests.[53] The point was put slightly differently by Blanchard J in the PaperReclaim decision:19A fiduciary relationship will be found when one party is entitled torepose and does repose trust and confidence in the other. The existenceof an agreement, express or implied, to act on behalf of another andthus to put the interests of the other before one's own is a frequentmanifestation of a situation in which fiduciary obligations are owed.Partners are a classic example of parties in that situation. Theirposition is different from that of parties to a contract who may haveto cooperate but are doing so for their separate advantages.[54] The same Judge put it slightly differently again in the Amaltaldecision, noting that in a fiduciary relationship:20[O]ne party is entitled to rely upon the other, not just for adherence tocontractual arrangements between them, but also for loyalperformance of some function which the latter has either agreed toperform for the other or for both or has, perhaps less formally, evenby conduct, assumed.[55] We consider the relevant principles can be summarised in this way.Some relationships are inherently fiduciary in nature, involving trust,confidence and a degree of dependence, such as solicitor and client and trusteeand beneficiary. In other cases a fiduciary relationship is only likely to beinferred when the legal relationship between parties involves: (1) the conferralof powers in favour of the alleged fiduciary, which may be used to affect theproprietary rights of the beneficiary; (2) the apparent assumption of arepresentative or protective responsibility by the alleged fiduciary for thebeneficiary (for example, to promote the beneficiary's interests, or to preferthe interests of the beneficiary over those of third parties); and (3) the impliedsubordination (although, not necessarily, elimination) of the allegedfiduciary's own self-interest.16 Chirnside v Fay [2006] NZSC 68, [2007] 1 NZLR 433 at [73].17 At [75].18 At [80].19 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 26, [2007] 3 NZLR 169 at [31](footnote omitted).20 Amaltal Corporation Ltd v Maruha Corporation [2007] NZSC 40, [2007] 3 NZLR 192 at [21].[56] Secondly, where the essential legal relationship is contractual,primacy must be given to the contract. The contract is the starting place.As Blanchard J observed in Paper Reclaim:21When parties have formed a contract the correct approach is first todecide exactly what they have agreed upon. Only then should the courtconsider whether any particular aspect of their agreement gives rise toa relationship which can properly be characterised as fiduciary,imposing an obligation of loyalty on one or both parties, whichsupplements the express or implied contractual powers. It is notenough to attract an obligation of loyalty that one party may havegiven up more than the other in entering into the contract or that thecontract may be more advantageous for one party than the other. Noris a relationship fiduciary in nature merely because the parties may bedepending upon one to perform the contract in its terms. That wouldbe true of many commercial contracts which require co-operation.[39] Applying these fiduciary principles to the facts claimed and not disputed,I make the following points. First, the MOU and governance statement relied on mayfall short of establishing the kind of legal relationship required, that is involvingconferral of powers, assumption of responsibility and subordination of self-interest.But given Mr Maniapoto's evidence, whether there was a joint venture of the typerequired to give rise to a fiduciary relationship is a question for trial. So too isconsideration of Mr Ikin's account of the factual background.[40] Secondly, I accept that the Waitangi Tribunal's inquiry into MMTB's mandatewas not addressing whether MMTB owed fiduciary obligations to Mr Maniapoto orTKM.[41] Thirdly, I also accept that substantive determination of the alleged fiduciaryand estoppel claims while the Bill is before the House would not encroach onParliamentary privilege insofar as it is merely declaratory of existing rights.[42] For these reasons, I consider there is a serious question to be tried as to whetherMMTB acted in breach of fiduciary duty.[43] However, even if breach of fiduciary duty can be made out at trial, it isnecessary to identify what the substantive relief might be in order to consider thequestion of interim relief, not least because of the issue of Parliamentary privilege.21 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 26, [2007] 3 NZLR 169 at [31].The serious question to be tried needs to extend to the claimed substantive reliefunderpinning the need for an interim injunction.[44] Several difficulties arise. As Mr Tennet acknowledged, the relief sought at trialwill need to be refined. That has not yet occurred, and the current pleading is not asolid platform on which to seek interim relief. Further, Mr Tennet submitted that thisproceeding is not seeking to question whether the Crown had the right to negotiatewith MMTB nor asking the Court to decide what the Crown should do despite whathe characterised as a low vote in favour of the settlement. Mr Milner said the level ofapproval was comparable with other settlements,22 and submitted that the claim reallyis about MMTB's mandate to negotiate with the Crown in respect of certain WAIclaims. While Mr Tennet submitted that Mr Maniapoto does not seek to underminethe settlement, he also submitted it can go ahead if the breach is remedied.Mr Maniapoto's position is that his/TKM's WAI claims should be removed from thesettlement. To that extent, he disputes the settlement. Despite the acknowledgements,he seeks to restrain progress of the settlement pending determination of thisproceeding.[45] The first difficulty is that MMTB does not assert ownership of the WAI claimsof Mr Maniapoto and TKM. They are not assets owned by MMTB. Nor are theyowned in any proprietary sense by Mr Maniapoto or TKM. The issue is whether theyare to be included in the Crown settlement. As Mr Milner submitted, individualclaimants do not have a right of veto in respect of any settlement – at least where thereis clear evidence that the Crown is following the wishes of the majority of thecollective that has been mandated for negotiations.23[46] The second difficulty relates to Parliamentary privilege. Insofar as the claimis that the settlement should not include these WAI claims, the relief sought is toremove the WAI claims from the settlement. That involves an amendment to the Bill.Otherwise, the historical WAI claims are to be settled by statute. While the Court ofAppeal has indicated that the courts may make declarations of existing right, interest22 84% of those voting, being 37% of eligible voters.23 Waitangi Tribunal The East Coast Settlement Report (Wai 2190, 2020) at 49.or entitlement whether or not there is a bill before the House,24 it is difficult to see howthe claims against MMTB in this proceeding could give rise to any remedy in thisCourt – even a declaration – impinging on the inclusion of the WAI claims in thesettlement.[47] The third difficulty concerns causation. It is necessary to distinguish betweenloss or profit caused by the breach of fiduciary duty and a WAI claimant's "loss" dueto a statutory bar on settled WAI claims.[48] Mr Ikin states that the deed records that it is conditional until the settlementlegislation comes into force; that settlement redress, including property, funds or otherproperty will transfer to the PSGE, not to MMTB; and that the settlement legislationwill dissolve MMTB (and the Maniapoto Fisheries Trust) and vest all of its assets andliabilities in the PSGE. Mr Milner submitted this follows the approach in other Treatyclaims.[49] The fiduciary claim is in essence a claim for loss of opportunity to lead thesettlement negotiations and obtain a mandate. In a case where a fiduciary benefitsfrom a commercial opportunity in breach of the duty of loyalty, the fiduciary will likelyhold any profits on trust. But here the lost opportunity is to negotiate with the Crownand the "profit", that is the benefit of the Crown's settlement redress, will not go toMMTB but to the PSGE. Any available remedy from MMTB if breach of fiduciaryduty is ultimately made out is likely to be limited to equitable compensation and/or adeclaration to restore mana.[50] In these circumstances, especially now that the deed of settlement has beensigned and the Bill is before the House, it is difficult to see how the claim could resultin any non-monetary substantive relief that could underpin an interim injunction.[51] For these reasons, in relation to a claim for non-monetary substantive relief(which has yet to be refined), I do not consider there is a serious question to be tried.24 Above at [31]; Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General[2020] NZCA 2, [2020] 3 NZLR 1 (CA) at [33].[52] Even though the serious question threshold is not met, I move on to considerwhether the balance of convenience favours granting or refusing relief since these twoheads are only an aid to determining where overall justice lies.25Balance of convenience[53] When assessing the balance of irremediable prejudice, a primary considerationis whether damages will be an adequate remedy for either party. Mr Tennet submittedthat damages will not sufficiently compensate Mr Maniapoto and those he representsfor the loss of the WAI claims. If there were a basis for claiming that the WAI claimsshould be removed from the settlement, it is unclear whether damages would be anadequate remedy. Whether or not MMTB is able to pay compensation, if MMTB'sliability is transferred to the PSGE, which is the recipient of the Crown's settlementredress, it should be in a position to compensate for financial loss. The continuationand enforceability of proceedings – such as this proceeding – against the PSGE isreflected in cl 216 of the Bill. But I accept that damages may not compensateMr Maniapoto (or TKM) for other loss, such as loss of their mātauranga Māori.[54] MMTB did not articulate the damage it would suffer if interim relief weregranted. It is unclear what damage there would be given the deed of settlement isalready signed, the matter is now before Parliament and MMTB is to be dissolved.Nevertheless, MMTB raised that Mr Maniapoto has not provided an undertaking as todamages. Mr Tennet submitted that I should not require an undertaking on the basisthis claim is in the public interest, referring to Finnigan v New Zealand Rugby FootballUnion Inc.26 In that case, however, the plaintiffs did give an undertaking and theinterim injunction granted was conditional on it being extended, albeit it wasdischarged apparently by consent as part of the resolution of the proceeding.27 In anyevent, r 7.54 of the High Court Rules 2016 requires an undertaking as to damages byan applicant for an interlocutory injunction. There is conflicting authority as to25 Above at [33]; Commerce Commission v Viagogo AG [2019] NZCA 472, [2019] 3 NZLR 559 at[30], citing Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at142.26 Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 181 (HC).27 At 188-189.whether the Court has a discretion to dispense with it.28 Assuming the Court does havea discretion to dispense with the requirement notwithstanding the apparentlymandatory terms of the rule, it is only likely to be exercised in narrow circumstances.I am not persuaded this is such a case. This is not an application for judicial reviewbut a breach of fiduciary duty claim against MMTB seeking relief that includesdamages. Rather than Mr Tennet's proposed alternative that any injunction be grantedon terms that make it more easily set aside in the event of damage to MMTB, I considerthe appropriate alternative would be to make any interim order conditional on theprovision of an undertaking.[55] Thus, inadequacy of damages is more of an issue for Mr Maniapoto.[56] I do not accept Mr Tennet's submission that the circumstances favour a pause,that is preserving the status quo pending determination of the substantive claim.Weighed against the low prospect of non-monetary substantive relief, the interests ofthird parties are relevant. The Crown has reached a deed of settlement following theWaitangi Tribunal's mandate inquiry and the interests of the supporters of the mandateshould also be weighed. The PSGE is not a party to this proceeding, nor been served.[57] Mr Tennet submitted that MMTB's conduct weighs in favour of interim relief.He submitted MMTB's breach is ongoing and it has not been transparent. While heaccepted that the deed of settlement was signed by MMTB before service of the Courtdocuments on 29 October 2021, he submitted that Mr Maniapoto's history of objectionwas known, the deed was signed in haste and an inference could be drawn. WhileMMTB knew there had been earlier proceedings in the District Court and the Tribunaland that support was not unanimous, I do not infer that MMTB signed the deed withknowledge of the intended injunction application.[58] Mr Tennet also submitted that MMTB did nothing to prevent the signing of thedeed by the Crown or the introduction of the Bill following service of this proceeding.It is unclear what, if any, steps MMTB took after service of the injunction application28 See for example A v Fairfax New Zealand HC Wellington CIV-2011-485-569, 28 March 2011,Addendum 29 March 2011; and Andrew Beck and others McGechan on Procedure (looseleaf ed,Thomson Reuters) at [HR7.54.01].before the Bill was signed by the Crown on 11 November 2021 or introduced intoParliament on 3 December 2021. While it appears that MMTB was not transparent,I do not consider that its conduct is a material factor. As Mr Milner submitted, thedeed does not constitute a "point of no return" as it is conditional on the enactment ofthe settlement legislation (with limited exceptions). This suggests there may be roomfor ongoing consideration of the scope of the settlement with the Crown in relation tothe WAI claims in issue.[59] As to urgency, Mr Melvin, with a watching brief for the Attorney-General,assisted by referring to a letter from the Honourable Andrew Little, Minister for Treatyof Waitangi Negotiations, to MMTB dated 17 December 2021 which confirmed thatMMTB had not sought urgency to be applied to any stage of the legislative processfor the Bill and that the Minister had not sought, and did not intend to seek, urgencyfor any stage of the legislative process for the Bill. However, the Minister noted thata decision to consider a Bill under urgency is ultimately a decision of the House.[60] MMTB says that the Bill will not pass for 12 to 18 months and so interim reliefis not needed as there is plenty of time to conclude this proceeding. If so, that weighsagainst interim relief. Once the substantive relief sought is clarified, the parties canconsider the need for priority if substantive determination of the proceeding is neededbefore the legislation is enacted.[61] Delay also counts against interim relief. The alleged breach occurred inJanuary 2016. Ms Maniapoto acknowledged that everything afterwards followed thebreach, submitting it was relevant to harm. While various other steps have been takento address the mandate issue, including the Waitangi Tribunal mandate inquiry, thefiduciary claim was only commenced in October 2021 after Mr Maniapoto learnedthat the deed of settlement was about to be signed. As Mr Milner submitted,Mr Maniapoto would have been aware that negotiations between MMTB and theCrown continued after the Waitangi Tribunal report in December 2019. Mr Milner didnot accept there had been a rush to sign, noting that the deed of settlement wasinitialled in December 2020. This was posted on the websites of MMTB andTe Arawhiti (as OTS is now called).[62] For these reasons, I consider the balance of convenience weighs againstgranting interim relief.Overall justice[63] I accept that Mr Maniapoto's claims against MMTB have a public interestcomponent given its status as Treaty partner in the Maniapoto settlement, which goesbeyond the scope of the Waitangi Tribunal mandate inquiry. But I have concludedthat, even if breach of fiduciary duty is made out, there is no serious question to betried in relation to non-monetary substantive relief that could underpin an interiminjunction. I also consider the balance of convenience weighs against granting interimrelief.[64] Standing back, I consider that overall justice is strongly against the grant of aninterim injunction.Freezing order[65] The Court may make a freezing order restraining a party from removing assetsor disposing of, dealing with or diminishing the value of those assets.29 Whilepreserving the flexibility of the remedy and the need to consider the overall justice ofthe case, there are three broad requirements for a freezing order:(a) a good arguable case;(b) assets of the respondent to which the order can apply; and(c) a real risk of dissipation.[66] Rule 32.2(5) requires an undertaking as to damages by an applicant for afreezing order. However, r 32.6(4) envisages that if there are special circumstances anundertaking may not be required. For the reasons given above, I do not consider thereare special circumstances. Any freezing order should be conditional on the provisionof an undertaking.29 High Court Rules 2016, r 32.2.[67] For the reasons given above, I accept the alleged breach of fiduciary duty isarguable. However, even assuming there is a good arguable case and MMTB hasassets to which the order can apply (the WAI claims are not such assets), I do notconsider there is a real risk of dissipation. There is no suggestion MMTB will removeits existing assets from New Zealand. There is no imminent risk that MMTB willdispose of its existing assets or be dissolved. MMTB was created by statute and isgoverned by statute. In addition to the Maniapoto Maori Trust Board Act 1988,MMTB holds its assets subject to the terms of the Māori Trust Boards Act 1955, anda significant proportion of its assets can only be transferred in accordance with therequirements of the Māori Fisheries Act 2004. MMTB can only be dissolved bystatute, which is intended to occur when the settlement legislation is enacted in duecourse. The settlement redress will go to the PSGE, not MMTB. In the meantime,the PSGE is not under the control of MMTB even if it has common board members.Also, MMTB's liabilities will continue with the PSGE.[68] For these reasons, the requirements for a freezing order are not made out.Result[69] The applications for interim injunction and freezing orders are dismissed.Costs[70] MMTB is entitled to costs. If they cannot be agreed, the parties are to filememoranda not exceeding three pages within 15 working days, and I will determinecosts on the papers.________________________________Gault J