MOTAIREHE WHANGA TE URI O RANGIHOKAIA KO NGĀTIWAI KI AOTEA INCORPORATED v NICOLA MACDONALD AND KRIS MACDONALD AS TRUSTEES OF THE NGĀTI REHUA - NGĀTIWAI KI AOTEA TRUST BOARD [2018] NZHC 1231

MOTAIREHE WHANGA TE URI O RANGIHOKAIA KO NGĀTIWAI KI AOTEA INCORPORATED vNICOLA MACDONALD AND KRIS MACDONALD AS TRUSTEES OF THE NGĀTI REHUA - NGĀTIWAIKI AOTEA TRUST BOARD [2018] NZHC 1231 [29 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-296[2018] NZHC 1231BETWEEN MOTAIREHE WHANGA TE URI ORANGIHOKAIA KO NGĀTIWAI KIAOTEA INCORPORATEDPlaintiffAND NICOLA MACDONALD AND KRISMACDONALD AS TRUSTEES OF THENGĀTI REHUA - NGĀTIWAI KIAOTEA TRUST BOARDDefendantsHearing: 12 October 2017Appearances: P F Chambers for the PlaintiffP J Andrew for the DefendantsJudgment: 29 May 2018JUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 29 May 2018 at 3:00 p.m.pursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors / Counsel:Mr P F Chambers, Barrister, AucklandMr M Henley-Smith (plaintiff's instructing solicitor), Henley-Smith Law, Solicitors, AucklandMr P J Andrew, Barrister, AucklandMs J Braithwaite (defendants' instructing solicitor), Braithwaite & Smail Ltd, Solicitors, AucklandIntroduction[1] The plaintiff is an incorporated society representing a group of Māori landowners based at Motairehe Whanga (Katherine Bay) on Motu Aotea (Great BarrierIsland). It seeks declaratory judgment against the defendants, as representatives ofNgāti Rehua – Ngātiwai ki Aotea Trust Board (the trust board).1 The trust board is inthe process of negotiating a Treaty of Waitangi settlement with the Crown. Theessence of the plaintiff's complaint is that it has been excluded from the settlementprocess by the trust board's adopting an incorrect whakapapa.[2] The first named defendant, Ms MacDonald, is the chair of the trust board. Shehas applied to strike out the claim in its entirety. The principal issue for determinationis whether the plaintiff's claim and the declarations sought are justiciable; that is tosay, whether the claims can properly be determined by a court.[3] The plaintiff has also made an interlocutory application for a preservationorder. The plaintiff seeks an order that funds paid to the trust board be secured untilthe plaintiff's claimed "rights to those funds have been determined", and ancillaryorders. Ms MacDonald has applied for an order that this application also be struckout.Conclusions in summary[4] The statement of claim should be struck out in its entirety.[5] The first and second declarations sought by the plaintiff are non-justiciable.They seek interpretations of the whakapapa of Ngāti Rehua and Ngāti Wai as includingthe descendants of Rangihokaia Ki Aotea. It is doubtful that such declarations can bemade under s 3 of the Declaratory Judgments Act 1908. In any event, the declarationssought would stray into an area into which the High Court should not venture in thiscase – factual and policy issues regarding Treaty of Waitangi settlements.1 The trust board was misnamed in the intituling of the proceeding and statement of claim becausethe words "ki Aotea" were omitted. There is an order amending the name to the correct name asrecorded in the intituling of this judgment.[6] The third and fourth declarations sought are that the plaintiff is entitled tonegotiate with the Crown and entitled to some, if not all, settlement money paid by theCrown to the defendants. There are several reasons why these declarations cannot bemade. In summary: the Crown is not a party to this proceeding; the Crown maynegotiate with whomever it chooses; the defendants will not be in receipt of settlementmoney as a "governance entity" is to be established for that purpose; and,fundamentally, the principle of comity or non-interference in parliamentaryproceedings renders such issues non-justiciable.[7] The fifth and sixth declarations seek relief that can only follow if the otherorders are granted. The statement of claim should therefore be struck out in its entirety.[8] The application for preservation orders cannot proceed in the absence of thesubstantive claim. In addition, the order in any event cannot be made against the trustboard, or the defendants, because they will not receive any settlement moneys. Forthese reasons the interlocutory application will also be struck out.Factual background[9] The plaintiff is an incorporated society, established on 25 January 2017. Thedate of its establishment precedes most events relevant to the trust board's negotiationsfor a Treaty settlement with the Crown, but neither party addressed issues that mayrelate to the date of incorporation. The plaintiff represents a group of Māorilandowners at Motairehe Whanga on Aotea. The group whakapapa to Rangihokaia KiAotea. The essence of their complaint is that the trust board has intentionally orrecklessly adopted a definition of whakapapa in its dealings with the Crown thatexcludes descendants of Rangihokaia Ki Aotea.[10] The trust board was incorporated under the Charitable Trusts Act 1957 with thename Aotea Ngātiwai Trust. In 1996 its name was changed to Ngāti Rehua –Ngātiwaiki Aotea Trust Board.[11] The whakapapa adopted by the trust board originates from two documents.[12] The first, the trust board's deed of mandate, is dated 23 November 2009. Thepurpose of the deed of mandate was to establish that the trust board had "obtained adurable mandate to represent Ngāti Rehua – Ngāti Wai ki Aotea in negotiations withthe Crown regarding a comprehensive settlement of all Ngāti Rehua – Ngāti Wai kiAotea historical Treaty claims."[13] The second document arises from a requirement in the deed of mandate thatthe trust board prepare a "strategy" to obtain its mandate. The strategy was preparedand annexed to the deed of mandate (the strategy document). The plaintiff takes issuewith a section of the strategy document titled "Te Whakapapa o Ngati Rehua" – adetailed genealogy. The plaintiff asserts in its statement of claim and submissions thatthe genealogy adopted excludes descendants of Rangihokaia Ki Aotea.[14] The Crown recognised the trust board's deed of mandate on 16 December2009. The Ministers of Māori Affairs and Treaty of Waitangi Negotiations jointlywrote to the trust board confirming the Crown's recognition of the mandate tonegotiate historical Treaty claims on behalf of Ngāti Rehua – Ngāti Wai ki Aotea.[15] Formal negotiations commenced following the Crown's recognition of themandate. On 18 June 2011, it was agreed in principle that the Crown would enter adeed of settlement with Ngāti Rehua – Ngāti Wai ki Aotea. On 16 December 2016,representatives of the Crown and the trust board initialled a deed of settlement. Thedeed provides a detailed history of Crown interaction with Ngāti Rehua – Ngāti Waiki Aotea and provides for a Crown apology. It also provides for cultural redress,financial and commercial redress, and settlement legislation.[16] Clauses 8.6 to 8.8 of the settlement deed define Ngāti Rehua – Ngāti Wai kiAotea. The plaintiff says this whakapapa is incorrect, because it derives from theearlier definitions of the claimant group in the deed of mandate and strategy document.[17] Clause 4.5 of the deed provides that the redress provided by the Crown isintended to benefit Ngāti Rehua – Ngātiwai ki Aotea collectively, but may also benefitparticular members or groups within the iwi if the "governance entity so determines".Financial redress in particular is addressed in cls 6.1 and 6.2. They provide that theCrown will pay the "governance entity" $5.1 million, of which $500,000 is due within10 days of the deed's execution.[18] The "governance entity" is not the trust board, but a new entity to beincorporated after the deed of settlement has been formally concluded. No money hasbeen paid by the Crown because that has not happened.[19] Clause 7.1 of the deed obliges the Crown to prepare a draft settlement Bill forintroduction to the House of Representatives. Clause 7.5 states that the "deed, and thesettlement, are conditional on the settlement legislation coming into force". A draftBill was prepared and annexed to the deed of settlement when the latter was initialled.To date, it has not been introduced to the House and the deed remains conditional.The plaintiff's substantive claim[20] I have referred to the plaintiff's argument that the whakapapa presented by thetrust board is incorrect. The plaintiff pleads that the defendants have created orotherwise relied upon a fictionalised whakapapa to remove all recognition of theplaintiff and the people it represents, and that they have been incorrectly classified aspart of Tainui. As a result, it is alleged, the defendants have ignored a class of Treatyclaimant entitled to seek redress.[21] The declarations and a related order sought by the plaintiff are as follows:A. An order or orders declaring the plaintiff's entitlement to interpret theWhakapapa of Ngati Rehua Ngati Wai as including the descendantsof Rangihokaia Ki Aotea.B. An order or orders declaring the plaintiff's entitlement to interpret theWhakapapa of Ngati Rehua Ngati Wai as excluding the Tainui line ofNgati Rehua from any entitlement, customary or otherwise to theGreat and Little Barrier Islands that comprise Aotea.C. An order or orders declaring the plaintiff's entitlement to negotiatedirectly with the Crown as to Treaty claims arising from the [G]reatand Little Barrier Islands that comprise the Aotea.D. An order or orders declaring the plaintiff's entitlement to some, if notall, of the monies received from the Crown by the defendants, therebyrequiring the defendants to fully account to the Court and the plaintifffor those monies.E. An order granting leave to the plaintiff to apply for further directionsand/or consequential orders as to the apportionment of funds received,or to be received, by the defendants from the Crown.The strike-out application[22] Ms MacDonald claims in the strike out application that the plaintiff has raisedissues that are non-justiciable and seeks relief that cannot be granted by a court. Shealso argues that there is no real dispute between the parties because the grouprepresented by the plaintiff is included within the definitions in the settlement deedand, as a result, they will be entitled to benefit under the Treaty settlement.[23] Mr Andrew's submissions for the defendant focused on the political and, in hissubmission, non-justiciable nature of the plaintiff's contentions. He submitted that:there is no satisfactory legal yardstick against which to measure these issues; theappropriate forums in which to air the plaintiff's contentions are the Waitangi Tribunalor the parliamentary select committee; that the definition of the group entitled to claimunder the settlement will ultimately be determined by Parliament and no rights will beaffected until such time as Parliament has enacted legislation; and the alleged error –false or erroneous whakapapa – was not an arguable error which could be divorcedfrom policy or political considerations.[24] Mr Chambers, for the plaintiff, argued that the issue of the validity of thewhakapapa and potential deprivation of a group of people from making any futureclaims against the Crown or government agencies is a justiciable issue. He contestedMs MacDonald's contention that there is no real dispute between the parties.Mr Chambers submitted that the claim does not attempt to attack the trust board's deedof mandate or the Crown's acceptance of that mandate, but to question the validity ofthe whakapapa that was presented by the defendants and to seek a decision correctingthat inaccuracy. In his submission, if the whakapapa is false or inaccurate in fact, thatgives rise to a justiciable issue that may result in declarations under the DeclaratoryJudgments Act.Principles of strike out[25] The Court is required to assume that the facts pleaded in the statement of claimare true. In Ngāti Whātua Ōrākei Trust v Attorney-General, the Court of Appealaffirmed the importance of assuming the truth of pleaded facts in cases involvingdispute over tikanga concepts.2 That case involved issues of ahi kā and mana whenua,but the principle applies with equal force when the case concerns whakapapa.[26] A strike-out application may only be granted if the Court is satisfied the causesof action are so clearly untenable that they cannot possibly succeed. Such ajurisdiction is to be exercised sparingly and only in clear cases where there is sufficientmaterial to decide the application.3[27] Mr Chambers emphasised in submissions that care is necessary where strikeout is sought in a case concerning an area of the law that is confused or developing.4I accept that the area of the law raised in this case is developing.5 But that fact and theresulting need for care does not preclude an order striking out the claim if it is clearlyuntenable.6Is this a justiciable claim?Principles[28] The central issue on this application is whether the declarations sought relateto issues that are justiciable. In Curtis v Minister of Defence, Tipping J defined a non-justiciable issue as:72 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 554 at [83].3 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.4 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ.5 The Supreme Court has granted leave to hear argument on similar issues in Ngāti Whātua ŌrākeiTrust v Attorney-General [2018] NZSC 24. See discussion of this case at [31] below.6 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 at [84].7 Curtis v Minister of Defence [2002] 2 NZLR 744 (CA) at [27].one in respect of which there is no satisfactory legal yardstick by which theissue can be resolved. That situation will often arise in cases into which it isalso constitutionally inappropriate for the Courts to embark.[29] As Arnold J said for himself and Elias CJ in Ririnui v Landcorp Farming Ltd,decisions about the Treaty of Waitangi often involve legislation, and the issuesinvolved in settlements, including the nature, form and amount of redress, "arequintessentially the result of policy, political and fiscal considerations that are theproper domain of the executive rather than the courts".8[30] The observations in Ririnui were made in a judicial review case, but are equallyapplicable to a proceeding such as the present which involves the interpretation ofdeeds and documents prepared for the sole purpose of Treaty settlement legislation.[31] In his submissions for the first defendant, Mr Andrew relied on the decision ofDavison J in this Court in Ngāti Whātua Ōrākei Trust v Attorney-General.9 Shortlyafter this application had been heard, the Court of Appeal released its decisiondismissing an appeal from Davison J's decision.10 Mr Andrew alerted the Court tothat decision, but neither party provided further submissions on its applicability to thiscase. The Supreme Court granted leave to appeal.11 It has recently heard the appealand its decision is pending.[32] The High Court and Court of Appeal judgments are directly relevant to thiscase. I also consider that the Ngāti Whātua Ōrākei Trust case, and earlier casesreferred to in the judgments, are not distinguishable from the present casenotwithstanding the fact that those other cases were proceedings against the Crownbut the present case is not.8 Ririnui v Landcorp Farming Ltd [2016] NZSC 82, [2016] 1 NZLR 1056 at [89]. Glazebrook Jagreed with this part of Elias CJ and Arnold J's decision (at [147]).9 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516.10 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 554.11 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 24.[33] The facts of and issues in Ngāti Whātua Ōrākei Trust may be stated succinctlyfor present purposes.12 The plaintiff, Ngāti Whātua Ōrākei Trust, had entered into aTreaty settlement with the Crown in 2012.13 Subsequently, the Minister of Treaty ofWaitangi Negotiations made three decisions which cumulatively proposed the transferof certain lands to the second and third defendants, Ngāti Paoa and Marutūāhu, as partof a settlement of historical wrongs.[34] Ngāti Whātua claimed mana whenua and ahi kā over the lands proposed to betransferred and issued proceedings challenging the Minister's decisions. It claimedthe Crown was required to exercise any powers to make the decisions in accordancewith principles of tikanga and obligations in respect of the Treaty of Waitangi, alongwith obligations owed directly to the plaintiff under its own settlement deed andsettlement legislation. Ngāti Whātua Ōrākei Trust claimed, in the alternative, thatthose principles and obligations were mandatory considerations the Minister had failedto adequately consider.[35] The plaintiff sought declarations requiring the Crown to comply with matterssuch as tikanga, and declarations that the Crown had acted inconsistently with itsobligations. It also sought what Davison J described as a "passive declaration".14 Thiswas "a declaration that Ngāti Whātua Ōrākei has ahi kā and mana whenua in relationto the [land proposed to be transferred]". That declaration is similar to declarations Aand B sought in the present case. These are the declarations concerning the plaintiff'sright to interpret the whakapapa of Ngāti Rehua – Ngātiwai ki Aotea as including thedescendants of Rangihokaia Ki Aotea, and as excluding the Tainui line.[36] The defendants claimed that the decisions did not affect the plaintiff's interests,but were merely preliminary steps taken in relation to the preparation of proposedlegislation. They also contended that the decisions involved policy and politicalconsiderations relating to Treaty claims which were within the sphere of parliamentaryprocess and in consequence beyond the reach of judicial review. They applied to strikeout the claim.12 This summary is drawn from the High Court decision: Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 at [1]-[7].13 Ngāti Whātua Ōrākei Claims Settlement Act 2012.14 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 at [133].[37] Although the declarations sought in Ngāti Whātua Ōrākei Trust did not relatedirectly to Parliament's consideration of Treaty settlement issues, Davison J held:[122] In my view, any declaration that would require the Crown, when it isformulating a Treaty settlement offer intended to be made subject to theenactment of authorising legislation, to proceed in the prescriptive mannersought and contended for by the plaintiff, would clearly intrude into the realmof interference with parliamentary business, and into the very area into whichthe Court should not go.[123] As the Court of Appeal emphasised in Milroy, the focus is not on theremoteness of the decision from the political process but instead on thefunction of the decision. Where the challenged decision relates to mattersinvolving the development or application of political policy, in a pre-legislative context, as was the case here, the function of the decision was notthat of determining the nature and extent of Ngāti Whātua's rights in terms ofmana whenua and whether it would be adversely affected by the settlementproposal, but rather was an intensely political decision, closely tied to thepreparation and presentation of legislation to Parliament. Even if the decisiondid in fact adversely affect the rights of Ngāti Whātua in a way that breachedthe common law by failing to recognise and apply tikanga and common law,the enactment of authorising legislation would render those actions and thetransfer of land provided for by the legislation lawful.[38] A particular issue identified by Davison J with the "passive declaration" soughtby Ngāti Whātua Ōrākei Trust was that mana whenua over the Auckland isthmus hadalready been considered by the Waitangi Tribunal, a body with "specialist knowledgeand expertise".15 The Judge also said:[134] I consider that there would be no utility in the making of such adeclaration, when the question of whether Ngāti Whātua has ahi kā and manawhenua in relation to the land has been overtaken by the now recognisedclaims of mana whenua by the other iwi comprising the Tāmaki MakaurauCollective, claims the plaintiff itself acknowledged by joining the Collectiveand agreeing to share the redress provided to the Collective by the Crown.[39] Ngāti Whātua Ōrākei Trust submitted that the degree to which a declarationtouched on matters of political process could be determined on a "spectrum" wheresome declarations may relate more to the legality and rights of an applicant, whileothers fall too close to the political process to be examined by the Court.16 On this theJudge said:15 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 at [134].16 At [129], relying on Te Ohu Kai Moana Trustee Ltd v Attorney-General [2016] NZHC 1798,[2016] NZAR 1169.[130] Notwithstanding the concept of a spectrum, I nevertheless agree withthe defendants' submission, that here the function of the challenged decisionmaking was closely tied and related to the development of legislation. While,as stated by the Supreme Court, Treaty context itself does not preclude review,in the present case, the function and nature of the decisions, and the reliefsought mean that it would be inappropriate for the Court to intrude into whatis clearly decision making falling within the province of the executive branchof government in determining how best to proceed in the public interest insettling the overlapping Treaty claims of the second and third defendants.[40] In striking out the claim, the Judge concluded that the decisions in questionwere "closely related to the development and preparation of legislation, which, ifenacted by Parliament, would establish the legal authority for the transfer of theselected properties".17 The Minister had made a "quintessentially political decision"that touched on political and fiscal factors, along with the public interest in the bestmeans of achieving Treaty settlements.18[41] He said:[143] While the plaintiff argues that it is not seeking to interfere with thelegislative process, and that the declarations it seeks are necessary to clarifyand determine the nature and scope of the post-settlement obligations owed toNgāti Whātua by the Crown, and which apply whenever the Crowncontemplates settlements with other iwi that would involve the transfer of landlocated within what Ngāti Whātua considers its core area of interest, in theabsence of a judicially reviewable decision, the Court will not embark on aprocess that necessarily involves consideration of declarations that aredirected at imposing obligations or constraints on the Crown in relation to thepreparation of legislation to be submitted for the consideration of Parliament,and the Court would not grant the declaratory relief sought.[42] The Court of Appeal considered there was merit in the appellant's submissionthat the Judge had incorrectly made factual determinations at the strike-out stage ofthe proceedings.19 The Court of Appeal nevertheless held that the High Court hadbeen correct to strike out the claim.20 The Court of Appeal focused on its previousdecisions in Te Runanga o Wharekauri Rekohu Inc v Attorney-General (Sealord),21Milroy v Attorney-General,22 and New Zealand Maori Council v Attorney-General.2317 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 at [139].18 At [141].19 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 554 at [79].20 At [84].21 Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) (Sealord).22 Milroy v Attorney-General [2005] NZAR 562 (CA).23 New Zealand Maori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318.[43] In the New Zealand Māori Council case, the plaintiff sought a declaration thata transfer of Crown forest land without a Waitangi Tribunal recommendation was inbreach of the Crown's contractual obligations and statutory duties.24 The proposal forthe Crown to make that transfer had originated in a deed in settlement of Treaty claimsand it was in relation to that deed that the declarations were sought. Legislation waspending.[44] In that case, O'Regan J said for the Court:[60] If the legislation is passed, therefore, what is proposed in Part 12 willbe lawful. If the legislation is not passed, what is proposed in Part 12 will nothappen. Either way, there is no action or proposed action of the Crown, otherthan the introduction of the legislation, which could be the subject of adeclaration. And as both the Sealords case and Milroy establish, the courts willnot grant relief which interferes or impacts on actions of the Executivepreparatory to the introduction of a Bill to Parliament, because to do so wouldbe to intrude into the domain of Parliament. For these reasons we decline tomake the declaration set out at para [9](b) above.[45] In Ngāti Whātua Ōrākei Trust, the Court of Appeal concluded withobservations of direct relevant to an assessment of the justiciability of the declarationsin this case:25[100] We see these authorities as presenting a fatal obstacle to Ngāti WhātuaŌrākei's claim. Mr Hodder seeks to distinguish them on the basis that there isin fact a "yardstick" that could be applied for the purposes of reviewing thedisputed decisions, namely the rights asserted by Ngāti Whātua in thestatement of claim if they were upheld. But the answer to that proposition issimply that the proposal is not that the properties be transferred, but that therebe legislation authorising that to occur. We consider it would be wrong inprinciple for a court to declare unlawful an outcome intended to be securedonly if authorised by Parliament.[101] While the declaratory relief is not couched expressly in such terms,added together, the declarations sought would have that effect. At the hearingof the appeal, Mr Hodder offered proposed revised declarations that hesuggested would be better than those contained in the amended statement ofclaim. [104] In the present case, the arrangements agreed in respect of the disputeddecisions is for legislation to be introduced that would give authority for theland to be referred. But if that does not occur, or the legislation is introducedbut not enacted, the disputed properties will not be transferred. In the24 At [9].25 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 554.meantime, declarations such as those sought by Ngāti Whātua Ōrākei wouldinevitably and directly relate to the development of legislative proposals. Thatwould be their only point: in the absence of legislation they would otherwisebe an empty gesture declaring unlawful something that was not intended tohappen.[105] Putting this another way, there is no proposal that will affect NgātiWhātua Ōrākei's rights other than a legislative one. This is territory that thecourts will not enter in accordance with the principle of non-interference.[106] These conclusions apply regardless of the source of the unlawfulnessalleged, whether it be a breach of the Treaty, of Ngāti Whātua's mana whenua,tikanga and customary rights, the honour of the Crown, or rights derived fromthe United Nations Declaration of the Rights of Indigenous Peoples. Theymean the claim was properly struck out. Evaluation[46] The principal difference between Ngāti Whātua Ōrākei Trust and the presentcase is that the plaintiff here does not seek declarations against the Crown (as earliernoted). That difference is not material. Whether the Crown is a party to the proceeding(and arguably it should have been) does not change the extent to which the matterstargeted by the declarations are part of the Treaty settlement process. In determiningwhether the issues raised by the claim are justiciable, it is necessary to examine thesubstance of the declarations sought.[47] Two of the documents in respect of which declarations are sought are closelylinked to the Treaty settlement process, as they were in Ngāti Whatua Ōrākei Trustand the other Court of Appeal cases referred to above. A third is an integral part of thesettlement with the Crown.[48] The first two declarations sought are:A. An order or orders declaring the plaintiff's entitlement to interpret theWhakapapa of Ngati Rehua Ngati Wai as including the descendantsof Rangihokaia Ki Aotea.B. An order or orders declaring the plaintiff's entitlement to interpret theWhakapapa of Ngati Rehua Ngati Wai as excluding the Tainui line ofNgati Rehua from any entitlement, customary or otherwise to theGreat and Little Barrier Islands that comprise Aotea.[49] Although the plaintiff does not identify the documents it claims to have a rightto interpret, it is clear from the statement of claim as a whole that the plaintiff seeksthose declarations in respect of the deed of mandate, the strategy document and thedeed of settlement.[50] In his submissions for the plaintiff, Mr Chambers sought to minimise the extentto which the Court was being invited to determine matters within the Crown'sexclusive purview and instead focussed on the issue of the validity of the whakapapa.He said the claim seeks to "question the validity of the whakapapa that was presentedby the defendants [sic] as the basis for claiming to have a mandate covering all peoplesof Aotea and receive a determination that corrects that inaccuracy."[51] As was the case in Ngāti Whātua Ōrākei Trust, the plaintiff has not shown howit has rights which have been affected by the alleged inaccuracy and which are capableof being adjudicated on by a court. Whether the whakapapa is correct or not, thedefinition of the claimant group has been accepted by the executive during itsnegotiations and, ultimately, that issue will be put to Parliament to determine. IfParliament decides to alter the definition of the claimant group, to correct a perceivederror, or for any other reason, that is entirely a matter for Parliament. As Gault P saidin Milroy v Attorney-General, "where the action challenged does not itself affect therights of any persons and is undertaken in the course of policy formulation preparatoryto the introduction to Parliament of legislation, the Courts will not intervene".26[52] The remaining declarations sought are directed to matters that are non-justiciable. The plaintiff seeks:C. An order or orders declaring the plaintiff's entitlement to negotiatedirectly with the Crown as to Treaty claims arising from the [G]reatand Little Barrier Islands that comprise the Aotea.D. An order or orders declaring the plaintiff's entitlement to some, if notall, of the monies received from the Crown by the defendants, therebyrequiring the defendants to fully account to the Court and the plaintifffor those monies.E. An order granting leave to the plaintiff to apply for further directionsand/or consequential orders as to the apportionment of funds received,or to be received, by the defendants from the Crown.26 Milroy v Attorney-General [2005] NZAR 562 (CA) at [18].[53] For the reasons stated in the cases, the courts cannot determine who may ormay not be entitled to negotiate with the Crown. Nor can the courts make adetermination about the allocation of money by the Crown. That also is a matterinitially for the Executive and ultimately for Parliament. The effect of the declarationsought would be to attempt to fetter Parliament's exclusive power to make the ultimatedecision on how public monies are to be allocated as part of a settlement.[54] A final consideration in respect of declarations D and E is that neither thedefendants nor the trust board are the intended beneficiaries of settlement monies. Agovernance entity is proposed for that purpose. Whether that proposal is adopted willagain be a matter for Parliament to determine. This is a further reason whydeclarations D and E cannot be made.[55] For these reasons I am satisfied that the plaintiff's claim is untenable and forthat reason it is to be struck out.[56] Two further arguments were advanced for the defendants. I have not takenthem into account in coming to my conclusion that the claim should be struck out.But, because they were given some emphasis by or for Ms MacDonald, I will brieflynote the arguments and my reasons why they are not relevant.[57] Mr Andrew submitted that the issues raised by the statement of claim could beraised in the Waitangi Tribunal or before a parliamentary select committee. I cannotdetermine in this proceeding whether that is correct, but in any event it would beunnecessary to do so. The availability of those avenues to raise non-justiciable issuesdoes not change the application of the principle of non-interference by the courts – theissues raised by the plaintiff are non-justiciable whether they can be raised elsewhereor not.[58] Ms MacDonald contended that, as a matter of fact, the group represented bythe plaintiff are not excluded from the proposed settlement, and Mr Andrew madesubmissions in that regard by reference to the documents. I have already concluded,for the reasons stated, that the Court cannot adjudicate on the plaintiff's contentionthat the whakapapa is incorrect, and that the group represented by the plaintiff hasbeen excluded. The principles underpinning that conclusion apply equally toMs MacDonald's argument. It is not an argument that I have taken into account inreaching my conclusions on her strike out application.Preservation orders[59] For the following reasons the application for preservation orders must also bestruck out. First, the application cannot stand with the substantive claim struck out.Second, the preservation orders cannot be made against the defendants, because theyare not the intended beneficiaries. Third, the application is misconceived becausethere is no property to be preserved: no money has been paid by the Crown to anyperson or entity, because no settlement has been completed, and no money will be paidunless and until there is an Act of Parliament enabling payment.Result[60] The name of the trust board in the original intituling is amended to the namerecorded in the intituling of this judgment.[61] The plaintiff's claim is struck out in its entirety.[62] The plaintiff's interlocutory application for preservation of property, dated 28February 2017, is also struck out.[63] The defendants are entitled to costs. If the parties are unable to agree on thequantum of costs payable by the plaintiff to the defendants, the following directionsapply:(a) Any memorandum for the defendants on the question of costs is to befiled and served by 15 June 2018.(b) Any memorandum in response for the plaintiff is to be filed and servedby 29 June 2018.(c) The memoranda are not to exceed 10 pages.(d) The matter will be determined on the papers.________________________________Woodhouse J