NGĀTI HURUNGATERANGI & ORS v NGĀTI WAHIAO [2016] NZHC 3156

NGĀTI HURUNGATERANGI & ORS v NGĀTI WAHIAO [2016] NZHC 3156 [20 December 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-463-000448[2016] NZHC 3156BETWEEN NGĀTI HURUNGATERANGI, NGĀTITAEOTU ME NGĀTI TE KAHU ONGĀTI WHAKAUEAppellantAND NGĀTI WAHIAORespondentHearing: 8 December 2016Appearances: David Goddard QC, John Kahukiwa and Bree Huntley for theAppellantsJack Hodder QC, Felix Geiringer and Cerridwen Bulow for theRespondentJudgment: 20 December 2016JUDGMENT OF MOORE JThis judgment was delivered by me on 20 December 2016 at 11:30 ampursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] Ngāti Wahiao1 seeks leave to appeal my judgment of 1 July 20162 to the Court of Appeal, pursuant to Article 5(5) of Schedule 2 to the Arbitration Act 1996("the Act"). My judgment was a decision from an appeal of an arbitral award delivered on 7 June 2013 in relation to a dispute between two Rotorua hapū.Background[2] The dispute at issue arises out of the return of ancestral lands ("the Lands") by the Crown to Māori. The Lands, comprising three blocks and known as Whakarewarewa and Arikikapakapa were returned after some 115 years in Crown ownership. There were competing claims to these Lands and differences between the hapū as to whom the land should be returned. Ngāti Whakaue and Ngāti Wahiaoeach claimed exclusive ownership.[3] A joint trust was established by deed to hold the Lands until the beneficial entitlement to it was determined by agreement, mediation or adjudication.3[4] Once it became clear that agreement could not be reached and little or no purpose would be served by mediation, the arbitral process provided for under the deed was invoked. An arbitral panel ("the Panel") was appointed, consisting of Bill Wilson QC, Kevin Prime and the late Erima Henare.[5] In Rotorua the Panel held hearings and received evidence and submissions between November 2012 and May 2013. In its award, delivered one month after the last sitting, the Panel determined the Lands should be apportioned equally betweenthe Ngāti Whakaue and Ngāti Wahiao interests.1 Ngāti Wahiao includes those hapu comprising Tuhourangi, Ngāti Wahiao as defined in theAffiliate Te Arawa Iwi/Hapu Deed of Settlement.2 Ngāti Hurungaterangi & Ors v Ngāti Wahiao [2016] 3 NZLR 378; [2016] NZHC 1486.3 By the Whakarewarewa and Roto-a-Tamaheke Vesting Act 2009.[6] Discontent with this result, Ngāti Whakaue unsuccessfully applied to this Court for leave to appeal.4 The iwi then appealed to the Court of Appeal. The Court of Appeal granted leave to appeal on specified questions of law:(a) Question 1: Did the Panel err in law in:(i) Failing to make findings (supported by reasons) as to who the beneficial owners of the Lands at issue were pre-1893?(ii) Failing to determine the party's claims to the Lands, having regard to those findings?(iii) Allocating beneficial ownership of the Lands according to broad conceptions of fairness, rather than identifying the persons entitled to beneficial ownership of the Lands?(b) Question 2: Did the Panel err in law in finding the Crown purchases of individualised interests in the land after 1893 resulted in loss of the mana whenua of the hapū in respect of those Lands?(c) Question 3: Did the Panel err in law by treating Crown purchases of individualised interests in land post-1893 as a relevant consideration in determining the dispute for it?(d) Question 4: Did the Panel err in law in its approach to s 348 of the Te Ture Whenua Māori Act 1993 ("the TTWMA")?[7] In my judgment I answered each of the questions in the negative.4 Ngāti Hurungaterangi, Ngāti Taeotu Me Ngāti Te Kahu O Ngāti Whakaue v Ngāti Wahiao[2014] NZHC 846.[8] Ngāti Whakaue seek leave to appeal on questions which are, essentially, identical. The difference is only in the identity of the tribunal being appealed. References to the Panel in the original questions have been substituted for references to the High Court. A copy of the proposed questions for the Court of Appeal isattached to this judgment as an appendix.The test for grant of leave under Art 5(5) of Schedule 2 of the Act[9] The test for granting leave is well settled. It incorporates two limbs:(a) Does the appeal raise a question or questions of law which are capable of bona fide and serious argument? and(b) Does that question or questions involve some interest, public orprivate, of sufficient importance to outweigh the cost and delay of anappeal to the Court of Appeal?5[10] On a second appeal, the Court is not engaged in the general correction of error. Its primary function is to clarify the law and determine whether it has been properly construed and applied by the Court below. Not every alleged error of law qualifies as of sufficient importance to justify the pursuit of an appeal which has twice been considered.6General submissionsNgāti Whakaue[11] Mr Goddard QC, for Ngāti Whakaue, submits that the proposed appeal raisesquestions of law which are capable of bona fide and serious argument. In particular, he refers to my observations in relation to question (a) that the Panel's reasons were"undeniably sparse" and that Ngāti Whakaue's claim that the findings in relation tomana whenua were inadequate and had failed only by "a fine margin".5 Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [29] – [33].6 Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Cullen Investments Ltd v Lancaster and HunterHC Auckland, 27 February 2003, M908-IM01 at [30] and [31].[12] Mr Goddard submits that the private importance of these issues to the parties cannot be overstated; each is a collective with many present and future members who are, in themselves, an important section of the public.Ngāti Wahiao[13] Mr Hodder QC, for Ngāti Wahiao, submits that there is a substantial onus onthe applicant to satisfy the Court that leave should be granted. He emphasises theprinciple of arbitral finality which, he submits, must inform the Court's exercise. Inthis respect, he distinguishes the present case from a commercial arbitral dispute, noting that the deed contemplated an expeditious resolution, a principle which is also recognised in s 5 of the Act.[14] Furthermore, he submits that an examination of the proposed questions, withthe exception of the fourth, reveals that none is actually a question of law. Allinvolve issues of evaluation or degree which exposes their true identity as questionsof fact.The Questions[15] I shall now turn to consider each of the proposed questions in light of thosesubmissions.Question 1: Did the High Court err in finding the Panel did not err in law in:(i) failing to make findings (supported by reasons) as to who the beneficial owners of the lands at issue were pre-1893?(ii) failing to determine the parties' claims to the lands having regard tothose findings?(iii) allocating beneficial ownership of the lands according to broad conceptions of fairness, rather than identifying the persons entitled to beneficial ownership of the lands?[16] Mr Goddard elevates questions 1(i) and (ii) particularly to being the "keycomplaint" in respect of my judgment. He adopts my observations that the Panel'sfindings were "undeniably sparse" and my comment that "this lack of engagement isregrettable". He submits that in the Panel's decision there was no description, let alone explanation, of the different histories and different Native Land Court ("NLC") findings as between the three separate blocks of land. He submits that the Panel'sequal division of beneficial ownership across all three blocks is unlikely to havebeen a reflection of the parties' beneficial/customary use of rights and instead submits this suggests an over-simplification or "crudity" of approach which falls far short of what the parties could reasonably expect of an arbitrator.[17] More particularly, Mr Goddard submits that my determination on thisquestion "set the bar too low" in terms of the appropriate threshold test. In supportof this submission, he relies on the Court of Appeal's judgment in Casata Ltd vGeneral Distributors Ltd.7 He submits that while Casata provides some guidance onthe sufficiency of reasons for findings of fact by an arbitral tribunal, the extent towhich a Panel is obliged to give reasons for findings of primary fact has not beendetermined in New Zealand. If the Court of Appeal was to adopt the Englishposition described by Donaldson LJ8 as "a reasoned award" the Panel's reasoningfell well short of sufficient.[18] In contrast Mr Hodder submits that the question of whether I set the threshold too low necessarily incorporates notions of evaluation or degree which inexorably leads to the conclusion the question at issue is one of fact rather than law. He emphasises the importance of arbitral finality and the well recognised principle that any appeal must have some special feature justifying a further appeal as discussed by the Court of Appeal in Holden v Foodstuffs (Wellington) Co-operative Society Limited.9[19] I am satisfied, for the reasons advanced by Mr Goddard, that the first question does raise a question of law which is capable of bona fide and serious argument. The extent to which a Panel is required to give reasons is, in my view, a question of law which will be assisted by appellate scrutiny.7 Casata Ltd v General Distributors Ltd [2005] 3 NZLR 156.8 Bremner Handelsgellschaft v Westzucker (No. 2) [1981] 2 Lloyd's Rep 130 (EWCA) at 132-133.9 Holden v Foodstuffs (Wellington) Co-operative Society Limited CA195/2014, [2014] NZCA 245 at [17].[20] Furthermore, to some extent, the force of Mr Hodder's submissions on theimportance of finality is mitigated by the fact that Ngāti Whakaue argue they have an appeal as of right under art 34(2) of the First Schedule to the Act. I was advised an appeal has been filed in the Court of Appeal against my determination that the rules of natural justice were not breached nor was the award in conflict with the public policy of New Zealand. While Mr Hodder does not accept an appeal as of right exists, this is a matter which will be before the Court of Appeal in any event. An examination of the issues under art 34 will necessarily traverse matters which will require consideration by the Court on at least some of the questions in respect of which leave is sought.Question 2: Did the High Court err in finding that the Panel did not err in law in finding the Crown purchases of individualised interests in the land after 1893 resulted in loss of the mana whenua of the hapu in respect of those lands?Question 3: Did the High Court err in finding that the Panel did not err in law by treating Crown purchases of individualised interests in land post-1893 as a relevant consideration in determining the dispute before it?[21] I shall deal with these questions together.[22] In my decision I determined that the Panel did not find, as a matter of fact, that Crown purchases of individual interests in land up to 1893 resulted in a loss of mana whenua to the hapū in respect of those Lands. However, I accept it is open to a serious and bona fide argument that the Panel did find there had been a lost of mana whenua to the Crown. As I noted in my judgment that part of the award is unfortunately phrased and has led to confusion. I agree with Mr Goddard that it is a question of interpretation and thus a question of law which, depending on the way in which the question is answered, raises further considerations such as whether and to what extent tikanga forms part of the common law of New Zealand, whether an error of tikanga is an error of law for the purposes of art 5 of Schedule 2 of the Act andwhether it comes within the reference in art 5(10) to an "incorrect interpretation ofthe applicable law".[23] In respect of the third question the issue is whether, assuming that the post- 1893 sales were taken into account as evidence of the pre-1893 position (rather thanjust transferring mana whenua), that amounted to an error of law. I determined thesales were not "legally relevant" and I am satisfied that this too is a matter of lawcapable of bona fide and serious argument.[24] Even if I am wrong and Questions 2 and 3 are not capable of bona fide or serious argument I agree that it would be proper, in any event, for these questions to be considered by the Court of Appeal. This was the approach adopted by Chambers J in Cullen Investments Limited v G Lancaster & Anor.10 Although I am of the view that Question 1 and its sub-questions are Ngāti Whakaue's strongest, it isperfectly possible that the Court of Appeal may take a different view of the strength or weight to be attributed to the other questions.Question 4: Did the High Court err in finding that the Panel did not err in law in itsapproach to s 348 of the Te Ture Whenua Māori Act 1993?[25] Mr Goddard properly accepts that of the four proposed questions this is the least seriously arguable. Nonetheless, he submits my reasoning misunderstood the nature of the inquiry conducted by the NLC which, he submits, in making the findings it did, determined the very issue the Panel was required to examine. He thus submits there is a serious and bona fide argument that even if s 348 of the TTWMA is given a narrow reading and protects only the legal titles that resulted from the NLC process, the doctrine of issue estoppel reinforced by s 348 nonetheless applies and, as such, the Panel was required "to respect the findings of the NLC".Furthermore, even if there had been an implied repeal of the section, Mr Goddard submits it is difficult to see how or why the Vesting Act would override the common law doctrine of issue estoppel.[26] Plainly Question 4 involves a question of law. The issue is whether it is capable of bona fide and serious argument. While I am less convinced, I am of the view that Ngāti Whakaue should be able to advance this question and in doing so it is unlikely to add any appreciable length or complexity to the hearing.10 Cullen Investments Limited v Lancaster & Anor HC Auckland CIV-2001-404-004236, 12 December 2003 at [26].Do the questions involve some public or private interest?[27] Having determined each of the questions posed is a question of law capable of bona fide and serious argument I must then turn to the question of whether the case involves some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.[28] I am easily satisfied this test is met for the following reasons.[29] First, the issue of beneficial interest and mana whenua in these Lands has been at issue for at least 115 years since the Lands became the property of the Crown.[30] Secondly, there can be no doubt that the ownership of the Lands is of great significance to the parties by reason of their historic, cultural and commercial significance and because the purpose of the award was to resolve longstanding grievances in relation to land.[31] Thirdly, I am satisfied that there is sufficient public importance because these are lands of longstanding national interest and significance. I agree with Mr Goddard that there is a public interest in determining the extent to which reasons must be set out in an arbitral award as well as an examination of the circumstances inwhich an error as to tikanga amounts to an error of law.[32] I am satisfied that each of the questions posed involves a question of law which is capable of bona fide and serious argument. I am also satisfied that the issues engaged are of sufficient private and public interest to justify an appeal.Result[33] Accordingly I make an order in favour of Ngāti Whakaue under art 5(5) ofSchedule 2 to the Act granting leave to appeal to the Court of Appeal on the questions set out in the appendix to this decision.Costs[34] Ngāti Whakaue, having succeeded on this application, is entitled to costs. I direct costs on a 3B basis which order extends to costs for second counsel including the reasonable travel and accommodation disbursements of counsel.Moore JSolicitors/Counsel:Corban Revell, AucklandMr Geiringer, WellingtonWoodward Law, WellingtonMr Goddard QC, WellingtonMr Hodder QC, WellingtonAppendix(a) Did the High Court err in finding that the Panel did not err in law in:(i) failing to make findings (supported by reasons) as to who the beneficial owners of the lands at issue were pre-1893?(ii) failing to determine the party's claims to the lands, having regard tothose findings?(iii) allocating beneficial ownership of the lands according to broad conceptions of fairness, rather than identifying the persons entitled to beneficial ownership of the lands?(b) Did the High Court err in finding that the Panel did not err in law in finding the Crown purchases of individualised interests in the land after 1893 resulted in loss of the mana whenua of the hapu in respect of those lands?(c) Did the High Court err in finding that the Panel did not err in law by treating Crown purchases of individualised interests in land post-1893 as a relevant consideration in determining the dispute before it?(d) Did the High Court err in finding that the Panel did not err in law in its approach to s 348 of the Te Ture Whenua Māori Act 1993?