LANT v TE RUNANGANUI O NGĀTI POROU [2017] NZHC 1915

LANT v TE RUNANGANUI O NGĀTI POROU [2017] NZHC 1915 [9 August 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2017-485-000255[2017] NZHC 1915UNDER The Senior Courts Act 2016AND The Marine and Coastal Area (TakutaiMoana) Act 2011BETWEEN MARISE MARCIA LANT ON BEHALFOF NGA HAPŪ O KOKORONUI KI TETOKA A TAIAU TAKUTAI KAITIAKITRUSTApplicantAND TE RUNANGANUI O NGĀTI POROURespondentHearing: 9 August 2017Counsel: B R Lyall for ApplicantT B Johnson for RespondentD A Ward and A M Smith for Attorney-GeneralJudgment: 9 August 2017Reasons: 11 August 2017JUDGMENT OF COLLINS JIntroduction[1] On 9 August 2017, I heard an application for an interim injunction brought byMs Lant on behalf of Nga Hapū o Kokoronui ki te Toka a Taiau Takutai KaitiakiTrust (the Trust). At the conclusion of the hearing I advised I was dismissing the application for an interim injunction. This judgment explains the reasons for my decision.[2] The application sought to prevent Te Runanganui o Ngāti Porou(Te Runanganui) from taking any action to implement a deed to amend the Nga Hapū o Ngāti Porou Foreshore and Seabed Deed of Agreement 2008 (the first deed) until applications by hapū represented by the Trust can be determined underthe Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act).[3] The application for an interim injunction was filed on 4 July 2017 in the High Court in Gisborne. When the application was referred to Mallon J on 26 July 2012 she directed that Te Runanganui be served.[4] Subsequently, Mr Lyall on behalf of the Trust sought an urgent hearing of the application for an interim injunction. The application was brought to my attention on 9 August 2017. I directed that the Crown be served immediately. This resulted in Dr Ward and Ms Smith appearing for the Attorney-General at the hearing on 9 August 2017. Dr Ward advised that the Attorney-General sought leave to be joined as a respondent. I granted that application.[5] From the outset I advised that in 1996/1997 I had acted as senior counsel for Te Runanganui in relation to an aspect of the Māori fishing litigation and inparticular, the dispute which went to the Privy Council, concerning the meaning of"iwi".1 All parties agreed that it was appropriate that I should continue to hear the application. There were two reasons why I did not consider it necessary to recuse myself:(1) My role as counsel for Te Runanganui involved me acting on behalfof all hapū within the Ngāti Porou rohe, including the hapū that arerepresented by the Trust.(2) The application for an interim injunction needed to be heard and determined immediately and there was no guarantee another Judge would be able to hear the application.1 Treaty Tribes Coalition v Urban Maori Authorities [1997] 1 NZLR 513 (PC).Background[6] In 2008, Te Runanganui and the Crown entered into the first deed relating to the settlement of issues concerning the foreshore and seabed in the Ngāti Porou rohe.That deed lay in abeyance whilst the Crown considered repealing the Foreshore and Seabed Act. That occurred when the MACA Act was passed in 2011.[7] Following the passing of the MACA Act Te Runanganui sought to re- negotiate with the Crown an amendment to the 2008 deed to take account of key changes in the law brought about by the MACA Act. To achieve this Te Runanganui circulated a draft amendment deed (the amendment deed) for ratification amongsthapū within the Ngāti Porou rohe. That process commenced in January 2017 andproceeded through to 22 July 2017.[8] Ms Johnson, for Te Runanganui, advised me that 47 hapū within the Ngāti Porou rohe ratified the amendment deed. The amendment deed was forwarded to the Crown on 7 August 2017 and has apparently been signed by ministers.[9] The amendment deed does not purport to bind hapū who have not ratified or not yet received the opportunity to ratify the amendment deed. There are 10 hapū inthis category. Two have voted against adopting the amendment deed. They will have the opportunity to pursue their own claims under the MACA Act. Theremaining eight hapū include some who are aligned with the Trust. If they elect notto endorse the amendment deed they also will have the opportunity to pursue their own claims under the MACA Act.[10] The interests of hapū who do not support the amendment deed are preserved under the MACA Act because Te Runanganui, on behalf of all hapū within the NgātiPorou rohe has filed a "holding claim" with the High Court under the MACA Act.Basis of the application[11] The application was advanced on two grounds:(1) First, it was alleged that the interests of those hapū represented by theTrust would be irrevocably adversely affected if the amendment deed was executed. The essence of this aspect of the claim was that thehapū represented by the Trust should not have their rights andinterests effectively determined before their claims under the MACA Act have been determined.(2) Second, it was suggested that Te Runanganui did not have the legal status to execute any deed under the MACA Act. It was suggestedonly individuals, hapū or iwi have the requisite status under theMACA Act.Analysis[12] I dismissed the application because in my assessment there was no tenablebasis upon which the Trust's arguments could succeed and because the balance ofconvenience favoured dismissing the application.2No arguable case[13] There were four reasons why I concluded that the Trust had failed to demonstrate that it had an arguable case.[14] The first was that the amendment deed does not purport to prevent hāpu whohave not ratified the amendment deed from pursuing their own claims under the MACA Act.[15] Second, the amendment deed does not affect the rights and interests of anyhapū. Arguably, the rights or interests of hapū represented by the Trust could only beaffected if Parliament legislates to give effect to the amendment deed.2 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).[16] Third, well established principles of comity preclude the Court from granting an injunction that would attempt to prevent Parliament from giving effect to the amendment deed.[17] Fourth, the definition of "applicant group" under the MACA Act includes a "legal entity (whether corporate or unincorporate) or natural person appointed by oneor more iwi, hapū or whānau groups to be the representative of that applicant group".3 Te Runanganui clearly has legal status under the MACA Act.Balance of convenience[18] Having learnt that the deed has been signed by Te Runanganui and forwarded to ministers, there was no basis upon which Te Runanganui could be injuncted to prevent it implementing the deed. The balance of convenience therefore lay against granting the interim injunction sought by the Trust.Costs[19] I have not made any ruling in relation to costs. If the parties wish me to do so, then they should file memoranda setting out their respective positions within 10 days of the date of this judgment.____________________D B Collins JSolicitors:Lyall & Thornton, Auckland for ApplicantT B Johnson, Gisborne for RespondentCrown Law Office, Wellington for Attorney-General3 Marine and Coastal Area (Takutai Moana) Act 2011, s 9(1) "applicant group".