NGĀTI WHĀTUA ORĀKEI TRUST v ATTORNEY-GENERAL [2023] NZHC 74

NGĀTI WHĀTUA ORĀKEI TRUST v ATTORNEY-GENERAL [2023] NZHC 74 [3 February 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2015-404-2033[2023] NZHC 74UNDER the Judicature Amendment Act 1972 andPart 30 of the High Court RulesBETWEEN NGĀTI WHĀTUA ORĀKEI TRUSTPlaintiffAND ATTORNEY-GENERALFirst DefendantHearing: On the papers with written submissions on 12, 21 and 28 July2022, 9, 19 and 30 August 2022 and 20 and 25 January 2023Appearances: J E Hodder KC and J W J Graham for the plaintiff and TeRunanga o Ngāti Whātua and Ngāti Whātua o Kaipara,interested partiesD A Ward and Y Moinfar-Yong for the first defendantP F Majurey for the second defendantR A Siciliano for Ngāi Tai ki Tāmaki Trust, interested partyN R Coates for Te Ākitai Waiohua Settlement Trust, interestedpartyM K Mahuika, T N Hauraki and C Conroy-Mosdell for NgātiPāoa Iwi Trust, interested partyT D Smith and R L Goss for Ngāti Kuri Trust Board and NgāiTe Rangi Settlement Trust, intervenersJudgment: 3 February 2023JUDGMENT No 5 OF PALMER JThis judgment was delivered by me on Friday 3 February 2023 at 10 am.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarAND MARUTŪĀHU RŌPŪ LIMITEDPARTNERSHIPSecond DefendantTE RŪNANGA O NGĀTI WHATUAInterested partyNGĀTI WHĀTUA O KAIPARAInterested partyNGĀTI PĀOA IWI TRUSTInterested partyNGĀI TAI KI TĀMAKI TRUSTInterested partyTE ĀKITAI WAIOHUA SETTLEMENTTRUSTInterested partyNGĀTI KURI TRUST BOARDIntervenerNGĀI TE RANGI SETTLEMENT TRUSTIntervenerSummary[1] In the substantive judgment in these proceedings, issued on 28 April 2022, Ideclined to issue the declarations sought by Ngāti Whātua Ōrākei but indicated whatdeclarations I was inclined to make.1 I reserved leave to the parties, interested partiesand interveners to make submissions on those declarations and, subsequently, on theimplications of the Supreme Court's judgment in Wairarapa Moana ki Pouākani Incv Mercury NZ Ltd.2Declarations about ahi kā and mana whenua in Tāmaki Makaurau[2] Proposed declaration (a) is to the effect that Ngāti Whātua Ōrākei currentlyhave ahi kā and mana whenua in central Tāmaki Makaurau, based on take raupatu andahi kā, with all the obligations at tikanga that go with that, according to the tikangaand historical tribal narrative and tradition of Ngāti Whātua Ōrākei. The evidencedemonstrates that. The reasons to issue that declaration still stand. Ngāti WhātuaŌrākei seeks a declaration of their rights at tikanga and law. A declaration clearly hasutility to them. No one has identified any other proceedings or legislation that such adeclaration would cut across. It does not impinge on others' existing legal propertyrights.[3] I do not consider that declaration should be expanded as proposed by NgātiWhātua Ōrākei to refer to tikanga of other iwi. The terms of the substantive judgmentmake clear that the tikanga of Ngāti Whātua Ōrākei is not an outlier or uniquelyindividual across all iwi in Aotearoa. A declaration about the extent to which it isshared by other iwi who are not part of these proceedings is neither necessary nordesirable.[4] Proposed declaration (b) is to the effect that the tikanga and historical tribalnarratives and traditions of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai kiTāmaki, and Te Ākitai Waiohua do not currently recognise that Ngāti Whātua Ōrākei1 Ngāti Whātua Ōrākei v Attorney-General (No 4) [2022] NZHC 843 [Substantive Judgment].Corrected versions of the judgment were subsequently issued in May and July 2022, correctingslips. The final version of the judgment is that posted on the Ministry of Justice's JudicialDecisions Online website and is being reported at Ngāti Whātua Ōrākei v Attorney-General [2022]3 NZLR 601.2 Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142.have ahi kā and mana whenua, as those concepts are conceived of by Ngāti WhātuaŌrākei, in central Tāmaki Makaurau. I consider, for the reasons I gave in thesubstantive judgment, that declaration (a) should be accompanied by declaration (b).This declaration does not pronounce on what is the tikanga of Marutūāhu, Ngāi Tai kiTāmaki or Te Ākitai Waiohua (referred to in the proceedings as Te Toru), as the termsof the declaration make clear. They did not seek that the Court should do so. But itdoes make clear that their tikanga and historical tribal narratives and traditions do notaccord with those of Ngāti Whātua Ōrākei. I accepted the evidence of Harry Mikaere,James Brown, David Wilson Takaanini and Dr Korohere Ngāpō to that effect.Declaration (b) clarifies the declaratory relief granted to Ngāti Whātua Ōrākei inrespect of key issues in the proceedings.[5] It is clear from the substantive judgment that Te Toru did not seek to establishthat they themselves currently have or share ahi kā and mana whenua, as Ngāti WhātuaŌrākei conceive of those concepts, in the same area as Ngāti Whātua Ōrākei. I do notconsider there is utility in saying that in the declaration. Neither do I propose to makea further declaration sought by Ngāti Pāoa Iwi Trust (Ngāti Pāoa), whose position inrelation to the mana whenua of Ngāti Whātua Ōrākei is made admirably clear in theKawenata Tapu and Conciliation Agreement between those iwi, as recorded in thesubstantive judgment.Declarations about tikanga obligations in settling Treaty claims in Tāmaki Makaurau[6] I also confirm the inclination I expressed in the substantive judgment that thejudgment speaks for itself regarding the legal obligations of the Crown and iwi andhapū in relation to tikanga in the context of Treaty of Waitangi settlements. Therewould be little utility in making declarations based on those findings. In particular:(a) There is little or no support from the parties and interested parties forthe element of the identified declaration regarding the obligations ofiwi and hapū under the Treaty of Waitangi. It is also a generic, uncertainand contingent statement. It says only what the Treaty may require,depending on context.(b) It follows from the reasoning in the judgment that I regard the followingto be an accurate statement:3 the Crown will need to take reasonable steps to understand,recognise and respect the tikanga of iwi or hapū, and theCrown will need to actively protect the ability of iwi and hapūto exercise their tikanga.But the level of abstraction and context-dependent nature of theidentified declaration significantly reduces its utility as a declaration oflaw.[7] I also do not propose to make the declaration proposed by Ngāti Kuri and NgāiTe Rangi that the Crown's policy in the Red Book is unlawful. It is clear from thesubstantive judgment that the Red Book is incomplete in not explicitly acknowledgingthe legal requirement on the Crown to consider tikanga. The statements of policies inthe Red Book are important to those involved in Treaty settlement negotiations.Failing to update the Red Book therefore might even, arguably, be consideredunreasonable. But the criticisms of the Red Book contained in the substantivejudgment do not, quite, amount to a finding that the policy in the Red Book is unlawful.Accordingly, the proposed declaration does not properly reflect the judgment. In anycase, the Crown assures the Court that it is reviewing the implications of thesubstantive judgment for the Red Book policies.Result[8] I make the following declarations:(a) Ngāti Whātua Ōrākei currently have ahi kā and mana whenua inrelation to the area identified in Map 1 of the substantive judgmentof 28 April 2022 in central Tāmaki Makaurau, with all theobligations at tikanga that go with that, according to the tikangaand historical tribal narrative and tradition of Ngāti WhātuaŌrākei.3 Substantive Judgment, above n 1, at [646].(b) The tikanga and historical tribal narratives and traditions ofMarutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, andTe Ākitai Waiohua do not currently recognise that Ngāti WhātuaŌrākei have ahi kā and mana whenua, as those concepts areconceived of by Ngāti Whātua Ōrākei, in relation to the areaidentified in Map 1 of the judgment of 28 April 2022 in centralTāmaki Makaurau.[9] I also make timetabling directions, if any of the parties wish to seek costs,despite my preliminary inclination that they should lie where they fall.The substantive judgment[10] The summary of the result of the substantive judgment was:[79] I decline to make the declarations as sought by Ngāti Whātua Ōrākei.I reserve leave for any of the parties or interested parties, if they wish:(a) to make submissions on whether the Court should make adeclaration along the lines that:Ngāti Whātua Ōrākei currently have ahi kā and mana whenuain relation to the area identified in Map 1 of this judgment incentral Tāmaki Makaurau, with all the obligations at tikangathat go with that, according to the tikanga and historical tribalnarrative and tradition of Ngāti Whātua Ōrākei.(b) to make submissions on whether the Court should make adeclaration along the lines that:The tikanga and historical tribal narratives and traditions ofMarutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki,and Te Ākitai Waiohua do not currently recognise that NgātiWhātua Ōrākei have ahi kā and mana whenua, as thoseconcepts are conceived of by Ngāti Whātua Ōrākei, in relationto the area identified in Map 1 of this judgment in centralTāmaki Makaurau.(c) to make submissions on whether the Court should make anyalternative declarations about legal obligations in relation totikanga in the context of Treaty settlements, along the lines that:The duties of active protection of tikanga and of actingreasonably and in good faith, with mutual cooperation andtrust in relation to tikanga, will bear on Crown decisionsaffecting tikanga interests in a Treaty settlement context.Accordingly, depending on the context, the Crown will needto take reasonable steps to understand, recognise and respectthe tikanga of iwi or hapū, and the Crown will need to activelyprotect the ability of iwi and hapū to exercise their tikanga.Depending on the context, the Treaty of Waitangi may alsorequire iwi and hapū to engage in tikanga-consistentprocesses with other iwi and hapū about the status of relevantproperties at tikanga.(d) to apply jointly for the Court's assistance to facilitate a tikanga-based resolution process to address any of the disputed issues ofapplying tikanga canvassed in this judgment or to apply jointly fora declaration by the Court to reflect a joint position about any ofthese disputed issues, reached by a tikanga-consistent process.[80] Any of the further submissions should be filed and served within threemonths of the date of this judgment. I reserve leave for any of the partiesor interested parties to request a teleconference to discuss any issuesarising before that. There is no time limit on the leave reserved to seekCourt assistance. Costs are reserved.[81] I close this judgment by quoting the Waitangi Tribunal in the NgātiAwa Raupatu Report:4In seeking solutions, it is important to bear in mind that Māori societyis fundamentally about relationships. It is not enough to resolve theimmediate problem. The people must continue to live together, andthe more important task is to rebuild the relationships based uponwhakapapa and respect for the mana of each group.[11] Ngāti Whātua Ōrākei also records their appreciation of the Court's willingessto provide asstance to facilitate a tikanga-based resolution process with the parties.Ngāti Whātua Ōrākei has indicated to the other parties their willingness to participatein a tikanga-based resolution process with the other parties. They will update the Courtonce discussions with the other parties have progressed.[12] The parties, the interested parties and interveners made submissions on thedeclarations. I outline the submissions in relation to each of the declarations. TheCrown and Te Toru also sought to make submissions on the implications of theSupreme Court's judgment in Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd.5Ngāti Whātua Ōrākei, Ngāti Pāoa, Ngāi Te Rangi and Ngāti Kuri all sought to reply.They have all done so, with leave.4 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Ngāti Awa Raupatu Report(Wai 46, 1999) at 136.5 Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd, above n 2.[13] In Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd, the Supreme Courtwas concerned with the relationship between tikanga, including mana whenua (but notoverlapping claims to mana whenua), to the powers of the Waitangi Tribunal under theTreaty of Waitangi Act 1975. The supplementary submissions all note that the contextof that case is quite different to these proceedings. These proceedings have consideredextensive expert evidence about the respective tikanga of various iwi in TāmakiMakaurau, including in relation to mana whenua, and their relevance to obligations ina Treaty of Waitangi settlement context. The supplementary submissions suggest thatthe Supreme Court's judgment in Wairarapa Moana ki Pouākani Inc v Mercury NZLtd either supports their submissions about declarations here, or lacks relevance anddoes not meaningfully assist the Court.[14] I have taken those submissions, and the Supreme Court's judgment, intoaccount in this judgment. I consider that the Supreme Court's general observations inWairarapa Moana ki Pouākani Inc v Mercury NZ Ltd about tikanga, including manawhenua, are generally consistent with those in the substantive judgment in theseproceedings. No one suggested otherwise. But whether they are or not, and what thatmeans, is a matter for the appeal of the substantive judgment. I do not consider theSupreme Court's judgment materially impacts on the issues I have to decide in thisjudgment, which concern relief based on the findings in the substantive judgment inthese proceedings.Approach to declaratory relief[15] In relation to tikanga, in the substantive judgment, I held:[366] Because tikanga is law, iwi and hapū may seek legal remedies relyingon recognition of tikanga by the courts in particular cases. They may asserttheir customary rights and seek declarations accordingly. That is what NgātiWhātua Ōrākei does here, as the Supreme Court ruled they could.6 I acceptMr Hodder's submission for Ngāti Whātua Ōrākei that the Court's declaratoryjurisdiction is able to include the making of formal declarations of legal statusand rights, including customary rights, and of corresponding obligations.[16] In relation to declaratory relief in general, I said:6 Ngāti Whātua Ōrākei Trust v Attorney General [2018] NZSC 84, [2019] 1 NZLR 116 [NgātiWhātua Ōrākei (SC)] at [52]–[53].[451] The Woolfs' authoritative text on The Declaratory Judgment explainsthat "[a] declaratory judgment is a formal statement by a court pronouncingupon the existence or non-existence of a legal state of affairs".7 Declarationsare a well-established form of relief in the common law and are now a routineremedy in judicial review. As Elias CJ said in the Supreme Court in theseproceedings in 2018, "[w]here claims of right or legal interest are made in ourconstitutional order, it is the function of the courts to determine them."8 Themajority stated that:9It is common ground that the function of the courts includesmaking declarations as to rights. Nor is there any dispute that itmay be possible for Ngāti Whātua Ōrākei to advance a claim inrelation to customary rights.[452] The majority said "it must be open to Ngāti Whātua Ōrākei to seek toclarify its status in the area over which it claims rights short of a challenge tothe particular decisions to transfer the specified properties".10[453] Declarations of right became a more common remedy in English courtsfrom the mid-19th century.11 They were originally a private law remedy in theCourt's inherent jurisdiction. In New Zealand, the High Court has generalequitable jurisdiction to make declarations.12 That may be an apposite sourceof authority for declarations of legal rights at tikanga, if a source needs to beidentified. The Court also has supervisory jurisdiction under the common law,and under s 16(1)(b) of the Judicial Review Procedure Act 2016, to grantdeclaratory relief in judicial review proceedings. That is also relevant here;these are judicial review proceedings in form. And the Court has jurisdictionunder the Declaratory Judgments Act 1908 in relation to the interpretation orvalidity of statutes or other instruments, though that may not be so relevant tomatters of pure tikanga.[454] The Court's power to grant a declaration as a remedy is discretionary. Itis well-established in the law of judicial review that "courts today willgenerally consider it appropriate to grant some form of relief where they findreviewable error".13 A declaration will not usually be made where it lacksutility. But declarations vindicate rights and bind the parties by preventingthem from relitigating the same issues.7 Lord Woolf and Jeremy Woolf The Declaratory Judgment (4th ed, Sweet & Maxwell, London,2011) [Woolf and Woolf The Declaratory Judgment] at [1–02].8 Ngāti Whātua Ōrākei (SC), above n 6, at [78].9 At [34].10 At [53].11 Woolf and Woolf The Declaratory Judgment, above n 7, at [2–01].12 Association of Dispensing Opticians of NZ Inc v Opticians Board [2000] 1 NZLR 423 (HC) at[10]. See generally Rachael Schmidt-McLeave "Declaratory Relief" in Sir Peter Blanchard (ed)Civil Remedies in New Zealand (2nd ed, Thomson Reuters, Wellington, 2012).13 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112] per Elias CJ andArnold J.Declarations about ahi kā and mana whenua in Tāmaki MakaurauThe substantive judgment[17] In the substantive judgment, my reasoning about whether to make declarationsabout ahi kā and mana whenua in Tāmaki Makaurau was:14[458] In Part V of the judgment, I traversed the nature of tikanga as a free-standing legal framework recognised in New Zealand law. Tikanga is oftenassumed, recognised and referred to by New Zealand legislation. Tikanga wasrecognised by English common law that accompanied the Crown to NewZealand. It is recognised by New Zealand common law today. It candetermine the outcome of a court's application of a statute or the common law.It can be a direct source of legal rights. The Court can make declarations abouttikanga, where that is appropriate.[459] In Part V, I also outlined my conclusions about the Court's role regardingtikanga. Tikanga-consistent dispute resolution process must be preferred tonon-tikanga consistent court resolution of disputes about tikanga. But itfollows from tikanga being part of New Zealand law that, if tikanga-consistentresolution of a dispute about tikanga is not feasible, then recourse to a courtmay be appropriate as a matter of law. It would be a brave court that attemptsto reconcile or prioritise tikanga that truly differs between iwi or hapū,especially if that reconciliation is not tikanga-based. An attempt to do so maywell not be accepted by those who follow tikanga. It may not be tika. Theremay be a variety of different ways by which a court could seek to resolve adispute over tikanga that are more consistent with tikanga. I also acceptedthat the Court's declaratory jurisdiction is able to include the making of formaldeclarations of legal status and rights, including customary rights, and ofcorresponding obligations.[460] From one perspective, the lack of external recognition of, and respectfor, their mana whenua is one of the reasons why Ngāti Whātua Ōrākei soughta declaration from the Court. From another perspective, such a lack ofrecognition and respect means a declaration is not justified at tikanga. Fromyet another perspective, perhaps closest to the conclusions I have come to,Ngāti Whātua Ōrākei simultaneously has mana whenua from someperspectives, and not from others.[461] It will be clear from my analysis above that I am satisfied the evidencedemonstrates that Ngāti Whātua Ōrākei has mana whenua based on takeraupatu and ahi kā over the area in which they claim it, according to their owntikanga and based on their tribal historical narrative and tradition. NgātiWhātua Ōrākei seeks a declaration of its rights at tikanga and law. The issueshave been sufficiently traversed to support that. I would be inclined to makesuch a declaration on the basis that it speaks only of the tikanga and historicaltribal narrative and traditions of Ngāti Whātua Ōrākei. My preliminary viewis that such a declaration would not unduly cut across other proceedings orlegislation, which decide different issues. Such a declaration might be wordedas follows:14 Footnotes omitted.Ngāti Whātua Ōrākei currently have ahi kā and mana whenua in relationto the area identified in Map 1 of this judgment in central TāmakiMakaurau, with all the obligations at tikanga that go with that,according to the tikanga and historical tribal narrative and tradition ofNgāti Whātua Ōrākei.[462] That is not what Ngāti Whātua Ōrākei sought, though Mr Hoddersuggested that Ngāti Whātua Ōrākei might regard such a declaration foundedon the tikanga of Ngāti Whātua Ōrākei as helpful. So I reserve leave for theparties, and particularly Ngāti Whātua Ōrākei, to make further submissions, ifthey wish, on whether the Court should exercise its discretion to make adeclaration in those or similar terms.[463] Marutūāhu Rōpū, Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do notseek declarations regarding their tikanga. They oppose the declaration soughtby Ngāti Whātua Ōrākei that goes further than the tikanga of Ngāti WhātuaŌrākei. I am satisfied, on the basis of the evidence I have heard, thatMarutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te ĀkitaiWaiohua do not accept, based on their tikanga and tribal histories andtraditions, that their interests in Tāmaki Makaurau are subject or inferior tothe mana whenua of Ngāti Whātua Ōrākei. On that basis, I am not preparedto make a declaration that suggests their tikanga, tribal histories and traditionsare consistent with those of Ngāti Whātua Ōrākei, which might be inferredfrom the declaration sought by Ngāti Whātua Ōrākei.[464] I also do not consider that Ngāti Whātua Ōrākei and the opposing iwihave yet exhausted the possibility of tikanga-based resolution about thedifferences between them over mana whenua, if it can be exhausted. Trial bybattle (of lawyers) is not necessary. The Court should not intervene by makingdeclarations that go further than the tikanga of Ngāti Whātua Ōrākei for thatreason as well. But the parties may consider that a single declaration aboutthe tikanga of Ngāti Whātua Ōrākei leaves too much room open for inferencesabout their positions.Submissions of plaintiff and supporters[18] Mr Hodder KC, for Ngāti Whātua Ōrākei, submits that the wording ofdeclaration (a) proposed by the Court might be extended as underlined:(a) Ngāti Whātua Ōrākei currently have ahi kā and mana whenua inrelation to the area identified in Map 1 of this judgment in centralTāmaki Makaurau, with all the obligations at tikanga that go with that,according to principles of tikanga common to many, but notnecessarily all, iwi, and to the tikanga and historical tribal narrativeand tradition of Ngāti Whātua Ōrākei.[19] He submits this is consistent with the Court's findings. "Many" is appropriatelanguage given the number of iwi supporting the plaintiff, the terms of treatises oncommon principles of tikanga and the acknowledgement of Ngāti Whātua Ōrākei bypūkenga for opposing iwi. Otherwise, there is a risk that the approach of Ngāti WhātuaŌrākei to tikanga may be perceived as an outlier or uniquely individual when that isnot the evidence nor the Court's finding. If the Court does not include the proposedadditions, the declaration originally identified by the Court is in accordance with thefindings in the judgment and would have a certain value for Ngāti Whātua Ōrākei.The fact Ngāti Whātua Ōrākei has appealed the substantive judgment is no barrier tothe Court issuing declarations, which it can make irrespective of whether the partiesconsent.[20] Mr Hodder submits declaration (b) should not be made. No declaratory reliefwas sought by any defendant and interested parties did not plead to the claim. Hadsuch a declaration been sought, it is likely that Ngāti Whātua Ōrākei would have ledfurther evidence and conducted cross-examination differently. Alternatively, if theCourt is minded to make declaration (b), it should be further qualified bydistinguishing between Ngāti Pāoa and other Marutūāhu iwi as Ngāti Pāoa proposes.It should also be qualified by the addition of the underlined words, to reflect theimportant fact that opposing iwi did not prove that they themselves have mana whenuaand ahi kā in the relevant land:(b) The tikanga and historical tribal narratives and traditions ofMarutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and TeĀkitai Waiohua do not currently recognise that Ngāti Whātua Ōrākeihave ahi kā and mana whenua, as those concepts are conceived of byNgāti Whātua Ōrākei, in relation to the area identified in Map 1 of thisjudgment in central Tāmaki Makaurau, but noting that those partiesdid not seek to establish, and have not established in this proceeding,that they themselves currently have or share ahi kā and mana whenuain the same area.[21] Ngāti Pāoa supports the modifications to declaration (a) proposed by NgātiWhātua Ōrākei or, alternatively, the version originally identified by the Court. MrMahuika submits on their behalf that, if declaration (b) is made, either in its currentform or with the modifications proposed by Ngāti Whātua Ōrākei, furthermodifications are necessary to reflect the Court's findings on Ngāti Pāoa's distinctposition by the addition of the following:However, the tikanga and historical tribal narratives and traditions ofMarutūāhu Rōpū, Ngāti Pāoa and Ngāti Whātua Ōrākei, together with theKawenata Tapu and Conciliation Agreement between Ngāti Pāoa and NgātiWhātua Ōrākei, establish that Ngāti Pāoa has significant and extensiveinterests in Tāmaki Makaurau relative to other Marutūāhu iwi.[22] If Ngāti Pāoa's proposed addition is not made, Mr Mahuika submits thedeclaration should not be made at all. If declaration (b) is not made, a declarationreflecting Ngāti Pāoa's position, as proposed above, should be made. It does notrequire any additional legal or factual findings from those in the substantive judgmentand the Court is entitled to make the declaration. Otherwise, a possible inference isthat the Court made equivalent findings of fact in relation to all Marutūāhu iwi, whichis not the case.Submissions of defendants and supporters[23] Dr Ward, for the Crown, submits:(a) There is no utility in the proposed issuing of declarations. NgātiWhātua Ōrākei has appealed the substantive judgment. It isinappropriate and contradictory to say simultaneously that the HighCourt is in error and to seek relief based on that judgment prior toappeal.(b) None of the paragraphs Ngāti Whātua Ōrākei relies upon support theproposition that the Court found mana whenua is generally exclusiveexcept in fringe or contested areas, or by agreement. It is notappropriate for a declaration of legal right to include the Court'sobservation that "perhaps" many iwi have particular tikanga, nor toomit material words from the Court's reasoning. A declaration ofgeneral principles of tikanga would present a misleading impression ofwhat the Court considers is a proper understanding of tikanga inTāmaki Makaurau.(c) The submission by Ngāti Whātua Ōrākei that the declarations shouldreflect that other parties did not seek to establish that they share manawhenua and ahi kā is inconsistent with the pleadings. Marutūāhu andNgāi Tai ki Tāmaki made pleadings about mana whenua and ahi kā,which were contested matters before the Court. Issuing declaration (a)but not declaration (b) would not adequately reflect a material elementof the Court's reasoning and would not accurately reflect the law asdetermined by the Court. If declarations are to be issued, declarations(a) and (b) in their original form should both be issued as mutuallyconnected statements. Declaration (b) is not relief provided to adefendant but a reflection and explanation of the Court's legal andfactual findings.(d) The declaration proposed by Ngāti Pāoa is not consistent with thejudgment and departs from the Court's conclusions about tikanga inTāmaki Makaurau. The Court made no finding about conflicting tribaltraditions insofar as they relate to the relative tikanga interests of NgātiPāoa and other Marutūāhu iwi.[24] Mr Majurey, Ms Coates and Ms Siciliano, for Marutūāhu Rōpū, Te ĀkitaiWaiohua Settlement Trust and Ngāi Tai ki Tāmaki Trust (collectively, Te Toru),submit:(a) It is surprising that Ngāti Whātua Ōrākei seeks declarations, havingappealed. They submit that any proposed declarations should now onlybe made by consent of the parties. If the Court makes declarations,declarations (a) and (b) must be made together, in the form originallyidentified by the Court.(b) If declaration (a) is made, declaration (b) should be made as a necessaryqualification. Otherwise, as the substantive judgment says, declaration(a) would provide a misleading impression of what the Court considersis a proper understanding of, or implications of, tikanga in TāmakiMakaurau.15 The proposed amendments by Ngāti Whātua Ōrākeiattempt to relitigate matters.(c) Ngāti Pāoa have found themselves stranded in "no man's land" as aresult of how they ran their case. There is no finding in the substantivejudgment that supports Ngāti Pāoa's proposed declaration. Te Toru hasno issue with declaration (b) being amended to include (rather than15 Substantive Judgment, above n 1, at [78].exclude) Ngāti Pāoa. But Ngāti Pāoa considers this would not reflectthe findings of the Court and would be contrary to the terms of theKawenata Tapu and Conciliation Agreement.Declarations about ahi kā and mana whenua in Tāmaki Makaurau[25] The substantive judgment contains the High Court's findings of fact and lawin these proceedings. This judgment relates only to what relief should be granted as aresult of those findings. Accordingly, I do not revisit the findings in the substantivejudgment. Neither is there any legal problem in a party appealing the substantivejudgment while making submissions, at my invitation, on relief. Any appeal wouldthen be able to deal with the whole of the High Court's decision on the proceedings.[26] I provided the parties and interested parties with the opportunity to makesubmissions on declarations I was considering making. This is an exercise of theCourt's discretion to grant relief in what are still, formally, judicial reviewproceedings. I do not require the consent of the parties or interested parties to makedeclarations.[27] The reasons to issue a declaration that Ngāti Whātua Ōrākei has mana whenuabased on take raupatu and ahi kā over the area in which they claim it, according totheir own tikanga and based on their tribal historical narrative and tradition, still stand.The evidence demonstrates that fact. Ngāti Whātua Ōrākei seeks a declaration of theirrights at tikanga and law. A declaration clearly has utility to them. No one hasidentified any other proceedings or legislation that such a declaration would cut across.It does not impinge on others' existing legal property rights. Other than the additionalwords proposed by Ngāti Whātua Ōrākei, no one has taken issue with the wording ofproposed declaration (a).[28] I am unconvinced about the need to add the words proposed by Ngāti WhātuaŌrākei. The substantive judgment does not say that the relevant principles of tikangaNgāti Whātua Ōrākei are "common to many, but not necessarily all, iwi". The closestit came to that was at paragraphs [425]–[430], which refers to the evidence of TāmatiKruger, Paul Meredith and Charlie Tawhiao from outside Tāmaki Makaurau, and tothe witnesses and closing submissions of Ngāti Whātua Ōrākei as well as to Sir HiriniMead's text, Tikanga Māori.16 I summarised these paragraphs as follows:[45] I have no doubt that mana whenua, as the strongest "interest" at tikangain the "heartland" or ūkaipō of an iwi, and central to their identity, is currentlya real and robust aspect of the tikanga of Ngāti Whātua Ōrākei and some,perhaps many, but not necessarily all, other iwi. This is consistent with theevidence of the independent pūkenga called by Ngāti Whātua Ōrākei fromoutside Tāmaki Makaurau: Tāmati Kruger, Paul Meredith and CharlieTawhiao. The evidence supporting this in terms of the tikanga and tribalnarrative and traditions of Ngāti Whātua Ōrākei is given by their ownwitnesses and is consistent with the published and unpublished writings of thelate Professor Sir Hugh Kawharu.[29] It is clear from this summary, and from the longer passages it summarises, thatthe evidence of tikanga before me is nuanced. It is not to be quantified or unthinkinglytranslated from one iwi to another in abstract terms. No iwi other than Ngāti WhātuaŌrākei (and now, perhaps, Ngāti Pāoa) asks me to characterise their tikanga.Accordingly, I do not consider that declaration (a), which focuses on the tikanga andhistorical tribal narrative and traditions of Ngāti Whātua Ōrākei, should be expandedas proposed by Ngāti Whātua Ōrākei. The terms of the substantive judgment outlinedabove make clear that their tikanga is not an outlier or uniquely individual across alliwi in Aotearoa. A declaration about the extent to which it is shared by other iwi whoare not part of these proceedings is neither necessary nor desirable.[30] I also consider, for the reasons I gave in the substantive judgment, thatdeclaration (a) should be accompanied by declaration (b). Declaration (b) does notpronounce on what is the tikanga of Marutūāhu, Ngāi Tai ki Tāmaki or Te ĀkitaiWaiohua, as its terms make clear. They did not seek that the Court should do so. Butit does make clear that their tikanga and historical tribal narratives and traditions donot accord with those of Ngāti Whātua Ōrākei.[31] That has been an important issue in these proceedings. The position of NgātiWhātua Ōrākei is that they have exclusive ahi kā and mana whenua according to their16 Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers, Wellington2016) at 306–308.tikanga and tikanga Māori.17 That is the claim that Te Toru met. In the substantivejudgment, I was satisfied, on the basis of the evidence, that:18 Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te ĀkitaiWaiohua do not accept, based on their tikanga and tribal histories andtraditions, that their interests in Tāmaki Makaurau are subject or inferior tothe mana whenua of Ngāti Whātua Ōrākei.[32] I accepted the evidence of Harry Mikaere, James Brown, David WilsonTakaanini and Dr Korohere Ngāpō to that effect.19[33] I was not prepared to make a declaration suggesting otherwise, which mightbe inferred from the declaration originally sought by Ngāti Whātua Ōrākei. TheCrown, Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te ĀkitaiWaiohua consider declaration (b) is necessary if declaration (a) is issued. That isbecause they are mutually connected statements and so as to avoid giving a misleadingimpression of what the Court considers is a proper understanding of tikanga in TāmakiMakaurau. I consider it is important to issue declaration (b), to accompany declaration(a), for those reasons. It is not declaratory relief in favour of the defendants andinterested parties. It clarifies the declaratory relief granted to Ngāti Whātua Ōrākei inrespect of key issues in the proceedings.[34] I do not consider it is necessary to add the additional wording to declaration(b) proposed by Ngāti Whātua Ōrākei. It is clear from the judgment that Te Toru didnot seek to establish that they themselves currently have or share ahi kā and manawhenua, as Ngāti Whātua Ōrākei conceive of those concepts, in the same area as NgātiWhātua Ōrākei. I do not consider there is utility in saying that in a formal declaration,even with the qualification "as Ngāti Whātua Ōrākei conceive of those concepts",which Ngāti Whātua Ōrākei omits. Rather, the key point is those iwi do not currentlyrecognise that Ngāti Whātua Ōrākei have ahi kā and mana whenua as those conceptsare conceived of by Ngāti Whātua Ōrākei, in relation to the relevant area. That is alldeclaration (b) says.17 Substantive Judgment, above n 1, at [187]–[192].18 At [463].19 At [447].[35] Neither do I propose to make the declaration sought by Ngāti Pāoa:(a) Ngāti Pāoa was originally a defendant in these proceedings but signedthe Kawenata Tapu and Conciliation Agreement with Ngāti WhātuaŌrākei in a tikanga-consistent process.20 They accordingly withdrewtheir opposition to Ngāti Whātua Ōrākei and supported the declarationssought by Ngāti Whātua Ōrākei to the extent they were consistent withthe Kawenata.21 Ngāti Pāoa was granted leave to become an interestedparty. They opposed the position of Marutūāhu Rōpū which became adefendant by consent, and of which they are usually a part.(b) However, the managed conflict between Ngāti Pāoa and MarutūāhuRōpū in these proceedings was not "open warfare" and was notfocussed by anyone seeking a declaration as to their relativesignificance and extent of interests in Tāmaki Makaurau. Accordingly,I did not make a finding about that in the substantive judgment. Indeed,I observed in the substantive judgment at a number of places that moredetailed evidence and inquiry would be required to resolve suchissues.22(c) The reason to clarify the positions of the other iwi by makingdeclaration (b), which clarifies the positions of those iwi in relation tothe claim of Ngāti Whātua Ōrākei, does not apply to Ngāti Pāoa. Theirposition is made admirably clear in the Kawenata Tapu andConciliation Agreement. For that reason, the substantive judgmentexplicitly notes that I do not consider I need to resolve disputesconcerning occupation by Ngāti Pāoa of the area over which NgātiWhātua Ōrākei claim mana whenua.23 If Ngāti Pāoa wants the Courtto issue declarations about the relative significance or extent of itstikanga interests with regard to Marutūāhu, they can pursue that in otherproceedings.20 Substantive Judgment, above n 1, at [86(b)].21 At [223].22 At [41], [405]–[406], [421]–[422].23 At [403]–[404].Declarations about tikanga obligations in settling Treaty claims in TāmakiMakaurauThe substantive judgment[36] In the substantive judgment, in relation to jurisdictional parameters regardingtikanga obligations in settling Treaty claims in Tāmaki Makaurau, I made these pointsabout the parameters of the Court's jurisdiction:[564] The parties made submissions about three parameters of the Court'sjurisdiction in relation to the declarations sought concerning the Crown. First,Dr Ward submits Treaty settlements involve difficult and quintessentiallypolitical processes requiring compromise on all sides. It is true courts havetreated some decisions about Treaty settlements as inappropriate for judicialreview, as the Supreme Court stated in Ririnui v Landcorp Farming Ltd.24 Butthe Court went on to say that does not mean any decision having some Treatycontext is inappropriate for judicial review, as the Crown acknowledges.25 Thecomplex multi-faceted nature of Treaty settlements does not necessarily cloakgovernment decisions from the constitutional process of judicial review forunlawfulness or from declarations of legal right.[565] While the form of these proceedings began as a judicial review, it hasbecome a consideration of the legal status and rights of Ngāti Whātua Ōrākeiin relation to tikanga and the application of the Crown's overlapping interestspolicy. Accordingly, no specific decision of the Crown in relation to aparticular Treaty settlement is susceptible to judicial interference here. Thedesirability of judges making declaratory orders about complex multi-factoreddecision-making bears on the exercise of discretion as to whether relief shouldbe granted, rather than whether the Court is able to consider the issues.[566] Second, I accept Dr Ward's submission that the Supreme Court'sfinding, that Ngāti Whātua Ōrākei cannot challenge the decisions to legislateto transfer particular properties, is important in these proceedings.26 NgātiWhātua Ōrākei amended their statement of claim accordingly. This judgmentdoes not transgress that finding, or the underlying constitutional principle ofnon-interference in parliamentary proceedings, clarified by the Supreme Courtconsistently with constitutional principle. Rather, this judgment discharges"the function of the courts to make declarations as to rights" concerning the"live issues as to the nature and scope of the rights claimed by Ngāti WhātuaŌrākei".27 I detect little difference between the parties regarding this.[567] Third, Dr Ward submits the Supreme Court also made clear that NgātiWhātua Ōrākei would have to establish that the Crown's overlapping interestspolicy provides a basis for a reviewable decision.28 He submits that is onlyavailable in a narrow range of circumstances, on the basis of cases identifiedby the Supreme Court. But the primary authority he identifies, Lord Bridge's24 Ririnui v Landcorp Farming Ltd, above n 13, at [89].25 At [90].26 Ngāti Whātua Ōrākei (SC), above n 6, at [66].27 At [46] and [48].28 At [59].speech in 1985 in Gillick v West Norfolk and Wisbech Area Health Authority,is more in the nature of an understandable caution to courts to use theirjurisdiction with restraint.29 As the Woolfs say in their text, The DeclaratoryJudgment, Lord Bridge and Lord Templeman in Gillick "considered that thecourt had jurisdiction to correct errors of law in memoranda issued by publicbodies even though the bodies were not acting pursuant to a statutory powerin issuing the guidance and even though it had no legal force".30[568] The jurisdiction to correct errors of law in guidance, and to correctmanifestly unreasonable decisions to issue guidance, has also been acceptedin other cases in England, though the Woolfs consider the jurisdiction is"probably confined to determining issues of law".31 Indeed, as ProfessorsElliot and Varuhas point out, it may be more important for a court to exercisethe jurisdiction to review a policy, if many people are likely to rely on a policycontaining a legal error.32 In the Treaty context in Ririnui, the New ZealandSupreme Court noted that declaratory relief has been granted even thoughthere is no "decision" directly impacting rights.33[569] Of more weight is the point made by Elliot and Varuhas that "courts arereluctant to assess the legality of guidance in contexts where determinationsas to legality are heavily fact dependent".34 The related point, made by themajority of a full Court of Appeal in Attorney-General v Refugee Council ofNew Zealand, is that individual examples of the application of a policy are notthe policy itself.35 Here, examination of the illustrative examples adds richerfactual context to understanding the Crown's policy, and how the Crown hasunderstood and applied it in some circumstances; but these points remainsvalid. They bear particularly on the exercise of the Court's discretion to grantthe relief sought.[37] After holding that the declarations sought by Ngāti Whātua Ōrākei would notbe accurate statements of the law, in relation to declarations about tikanga obligationsin settling Treaty claims in Tāmaki Makaurau, I said:[646] In Part VIII, I have stated a number of aspects of the legal obligationsin relation to tikanga in the context of Treaty settlements. I am inclined toconsider that it speaks for itself and that there would be little utility in makingdeclarations based on it. However, I have reserved leave for the parties andinterested parties to make further submissions on whether the Court shouldissue alternative declarations in relation to tikanga. It may be that thealternative declarations I have identified have natural corollaries in terms ofTreaty settlements that would be suitable alternatives to the declarationssought. Such a declaration might be phrased along the following lines:29 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL) at 193–19430 Woolf and Woolf The Declaratory Judgment, above n 7, at 123.31 At 123.32 Mark Elliot and Jason Varuhas Administrative Law: Text and Materials (5th ed, Oxford UniversityPress, Oxford, 2017) at 526.33 Ririnui v Landcorp Farming Ltd, above n 13, at [91(a)].34 Mark Elliot and Jason Varuhas, above n 32, at 527.35 Attorney-General v Refugee Council of New Zealand [2003] 2 NZLR 577 (CA) at [30]–[32].The duties of active protection of tikanga and of acting reasonably andin good faith, with mutual cooperation and trust in relation to tikanga,will bear on Crown decisions affecting tikanga interests in a Treatysettlement context.Accordingly, depending on the context, the Crown will need to takereasonable steps to understand, recognise and respect the tikanga of iwior hapū, and the Crown will need to actively protect the ability of iwiand hapū to exercise their tikanga.Depending on the context, the Treaty of Waitangi may also require iwiand hapū to engage in tikanga-consistent processes with other iwi andhapū about the status of relevant properties at tikanga.[647] The parties and interested parties seek the opportunity to makesubmissions on alternative declarations. Perhaps everyone will agree withthese(!) Accordingly, I reserve leave for the parties and interested parties tomake submissions on whether the Court should make such alternativedeclarations about legal obligations in relation to tikanga in the context ofTreaty settlements, if they wish to do so.Submissions of plaintiff and supporters[38] Mr Hodder, for Ngāti Whātua Ōrākei, submits declaration (c) should be made,with modifications to reflect the scope of the Court's findings, as underlined and struckthrough:The duties of active protection of tikanga and of acting reasonably, inreasonable time, and in good faith, with mutual compromise, cooperation andtrust in relation to tikanga, arising under Te Tiriti o Waitangi/ the Treaty ofWaitangi, legislation including settlement legislation, and deeds of settlement,will bear on Crown decisions affecting tikanga interests in a Te Tiriti/Treatysettlement context.Accordingly, depending on the context, which includes the Crown'sapplication of its Overlapping Claims Policy, the Crown will need to takereasonable steps to understand, recognise and respect the tikanga of iwi orhapū, including the implications of mana whenua or other tikanga-basedinterests, and the Crown will need to actively protect the ability of iwi andhapū to exercise their tikanga.Depending on the context, the Treaty of Waitangi may also require iwi andhapū to engage in tikanga-consistent processes with other iwi and hapū aboutthe status of relevant properties at tikanga.[39] He submits the changes to the first sentence pick up the temporal context ofthe Court's findings, reflect additional findings in the judgment and expressly refer tothe source of obligations. The changes to the second sentence pick up the specificcontext of this proceeding and refer to the Court's specific finding that the languagein the Crown's Red Book 2021 fails to acknowledge the legal requirement to considertikanga.36 Alternatively, the declaration in the form originally identified by the Courtwould still have value to Ngāti Whātua Ōrākei and other iwi. It would be inappropriatefor the declaration not to issue, given the Court's findings about the unlawfulness ofthe Crown's conduct to date.[40] Mr Smith, for the Ngāti Kuri Trust Board (Ngāti Kuri) and Ngāi Te RangiSettlement Trust (Ngāi Te Rangi), supports the modifications to declaration (c)proposed by Ngāti Whātua Ōrākei and adopts their submissions or, alternatively,supports a declaration in the form originally identified by the Court. Ngāti Kuri andNgāi Te Rangi also propose declaration (c) be modified with additional words, or anadditional declaration, that the Crown's policy is unlawful, with or without anelaboration of the reason for it. Mr Smith suggested the following wording:The Crown's policy for responding to overlapping interests in the context ofTreaty of Waitangi settlement claims, as set out in the Red Book: Ka tika āmuri, ka tika ā mua – Healing the past, building a future (2018 edition,updated in 2021) is unlawful because it does not acknowledge the legalrequirement on the Crown to consider tikanga, including the implications ofmana whenua or other tikanga-based interests, and that it may not actunreasonably having regard to tikanga, in order to act consistently with theTreaty of Waitangi.[41] He submits the Court has found that it has jurisdiction to correct errors inpolicies, the Red Book does not contain a correct statement of law, and the illustrativeexamples before the Court indicate that failure is having practical consequences oniwi and hapū engaging with the Crown. As the Supreme Court recognised, a challengeto the Crown's overlapping claims policy was always discernible in the pleading inthis case.37 The evidence before the Court established the Crown's resistance toamending its overlapping claims policy to accurately record its legal obligations inrelation to tikanga. There is nothing before the Court to indicate the Crown willvoluntarily undertake a further revision.[42] Mr Mahuika, for Ngāti Pāoa, supports the modifications to declaration (c)proposed by Ngāti Whātua Ōrākei and adopts their submissions, or alternatively36 See New Zealand Government "Overlapping interests" (21 December 2021); and Office of TreatySettlements Ka Tika ā Muri, Kā Tika ā Mua: Healing the past, building a future (June 2018)together referred to as the Red Book unless the year is otherwise specified. See also SubstantiveJudgment, above n 1, at [623].37 Ngāti Whātua Ōrākei Trust (SC), above n 6, at [50], [57]–[59].supports a declaration in the form originally identified by the Court. Ngāti Pāoa alsosupports the additional declaration proposed by Ngāti Kuri and Ngāi Te Rangi andtheir submissions. Mr Mahuika submits the Court had extensive evidence before it ofthe factual content of the Crown's overlapping claims policies. The Crown's evidencewas clear that it makes decisions about redress in accordance with its clearlyarticulated policy framework. Accordingly, it is critical that the Crown's policyframework clearly articulates those matters to which this Court has now clarified itmust have regard i.e. the tikanga considerations. This is practically important for iwiand hapū. Otherwise, the Crown's statement of policy does not contain a correctstatement of the law relating to the Crown's legal obligations and cannot be relied onfor guidance.Submissions of defendants and supporters[43] Dr Ward, for the Crown, submits:(a) The Crown agrees with the comment in the substantive judgment thatthe Court was "inclined to consider that [the judgment] speaks for itselfand that there would be little utility in making declarations based onit".38 The judgment sets out the Court's conclusions about the law inrelation to tikanga in detail. A brief three-sentence summary riskspresenting an incomplete impression of the Court's conclusions. If adeclaration is to be issued, it is not necessary to go beyondidentification of the core principles of active protection andreasonableness and good faith, as the requirements of the principles willvary depending on context.(b) The Crown opposes the changes proposed by Ngāti Whātua Ōrākei,which are not supported by the judgment. The proposed reference tothe sources of obligations presumes, or gives the impression, that theTreaty of Waitangi is directly enforceable in domestic law whereas theCourt stressed it was not called upon to consider that issue and did notdo so. The Court did not describe settlement legislation or deeds as the38 Substantive Judgment, above n 1, at [646].source of a legal duty of active protection. The reasons Ngāti WhātuaŌrākei proposes to strike out words from the declaration originallyidentified by the Court are points for appeal.(c) The additional declaration proposed by Ngāti Kuri and Ngāi Te Rangigoes beyond the scope of the leave granted to make furthersubmissions. There is no basis for such a declaration in the judgment.None of the Court's comments on the either version of the Red Bookamount to a finding that the Crown policy is unlawful. The Crown hasengaged in good faith with the Iwi Chairs Forum and with iwi to discussan update to the Policy. Counsel are also instructed that Te Arawhitiofficials are "actively reviewing the Court's judgment and consideringits implications for the Crown's practice and policy in respect ofoverlapping interests in Treaty settlements". That includes an expertreview of information the Crown holds (including through theseproceedings) relating to the tikanga implications of Crown offers toother iwi in Treaty settlement negotiations in Tāmaki Makaurau.[44] Mr Majurey, Ms Coates and Ms Siciliano, for Te Toru, do not supportdeclaration (c) in its originally identified form or as proposed by others. Ngāti WhātuaŌrākei repeatedly stated it was not making a general challenge to the overlappingclaims policy but simply to how it applied to Tāmaki Makaurau. Yet the declarationwould apply across the motu when the motu did not participate in the proceeding. Thesubstantive decision speaks for itself and should be read in context and in its entirety.Declarations about tikanga obligations in settling Treaty claims in Tāmaki Makaurau[45] First, I consider whether any of the proposed additions to declaration (c) shouldbe made, if such a declaration is to be issued:(a) I do not consider "in reasonable time" should be added to thedeclaration. That was a significant aspect of the application of Treatyprinciples to tikanga in Treaty settlements in the substantivejudgment.39 However, the duties of active protection and of actingreasonably and in good faith are recognised duties under the Treaty ofWaitangi. Adding "in reasonable time" at the place proposed wouldslightly confuse that. In any case, the duty to act reasonably mustinclude the duty to act in reasonable time, so the addition isunnecessary.(b) I do not consider the addition of "compromise" would properly reflectthe reasoning in the substantive judgment.40 The passage Mr Hodderidentifies as relevant to this point refers to a submission by Dr Ward,albeit one built upon in the judgment to justify the third element of thedeclaration to which Ngāti Whātua Ōrākei objects.(c) I do not consider it would be useful to identify in the declaration thelegal sources of the duties. That is canvassed in the judgment and theproposed summary could convey a misleading impression. That isbecause the legal sources of a Treaty duty are crucially dependent onthe context – the relevance and wording of a deed of settlement,settlement legislation, other legislation or indeed simply factualcontext. For example, the substantive judgment does not considerwhether the Treaty of Waitangi gives rise to free-standing legalobligations.41 Rather, in summary, it suggests:(i) whether the Treaty is incorporated into law by legislation makeslittle difference in the context of this case due to the principlesof statutory interpretation and administrative law (which arecanvassed at some length), depending crucially on context;4239 At [624]–[628].40 At [606]41 At [589].42 At [589]–[596].(ii) the 2011 Treaty settlement between the Crown and NgātiWhātua Ōrākei, and the 2012 Act, affirm and reinforce theirobligations to act consistently with the Treaty;43 and(iii) the general context of Treaty relationships and settlementnegotiations between the Crown and Ngāti Whātua Ōrākei issufficient to establish obligations not to act inconsistently withthe principles of the Treaty.44(d) I do not consider it is useful to refer explicitly to the Crown'sapplication of the overlapping interests policy or the implications ofmana whenua or other tikanga-based interests. It is clear from the useof "includes" and "including" in relation to those proposed additionsthat they are already part of the meaning of the declaration identified inthe substantive judgment. I do not consider they add usefully to itscontent.[46] Second, Ngāti Whātua Ōrākei opposes the third element of the identifieddeclaration (c), that refers to the possibility that the Treaty of Waitangi may requireiwi and hapū to engage in tikanga-consistent processes with other iwi and hapū aboutthe status of relevant properties at tikanga in a Treaty settlement context. Ngāti Pāoa,Ngāti Kuri and Ngāi Te Rangi support the proposed amendments by Ngāti WhātuaŌrākei, though they alternatively support the declaration as identified by the Court.The Crown, Marutūāhu Rōpū, Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua all opposeall of declaration (c). Accordingly, there is little or no support for the third element ofthe identified declaration. It is also a generic, uncertain and contingent statement. Itsays only what the Treaty may require, depending on context. The Treaty may notrequire iwi and hapū to engage in tikanga-consistent processes in some contexts, evenif it does in others. And what the Treaty requires is not necessarily currentlyestablished to be a legal requirement depending again on context, as explained above.All this confirms my view that the third element of declaration (c) is not usefully issuedas part of a declaration in these proceedings.43 At [631].44 At [632].[47] That leaves the first two elements of declaration (c), as originally identified inthe substantive judgment. These are that Treaty duties will bear on Crown decisionsaffecting tikanga interests in a Treaty settlement context and, depending on context,that:45 the Crown will need to take reasonable steps to understand, recognise andrespect the tikanga of iwi or hapū, and the Crown will need to actively protectthe ability of iwi and hapū to exercise their tikanga.[48] It follows from the reasoning in the judgment that I regard this as an accuratestatement. But the utility of making it the subject of a Court declaration is less clear.Both elements of the identified declaration are necessarily stated at a high level, andan abstract and generalised level. They are crucially dependent on context, like thethird element. The parties have the benefit of the Court's full reasoning in relation tothese points. That involves both legal principle and consideration of the particularcontext of illustrative examples concerning tikanga and Treaty settlements in TāmakiMakaurau.46 The latter is probably more useful to the parties and interested partiesthan the identified declaration (c). The level of abstraction and context-dependentnature of the identified declaration significantly reduces its utility as a declaration oflaw.[49] I confirm the preliminary indication I gave in the substantive judgment that thesubstantive judgment speaks for itself regarding legal obligations in relation to tikangain the context of Treaty settlements. There would be little utility in makingdeclarations based on those findings.47[50] Finally, Ngāti Kuri and Ngāi Te Rangi propose that the Court make adeclaration that the Crown's policy in the Red Book is unlawful because it does notacknowledge the legal requirement on the Crown to consider tikanga. Ngāti Pāoasupports this. Ngāti Whātua Ōrākei wishes to tautoko the submission but does notcomment on it. The Crown and Te Toru oppose it.45 At [646].46 At [630]–[640].47 At [646].[51] I do not propose to make this declaration. The declarations originally soughtby Ngāti Whātua Ōrākei did not include a declaration that the Crown's policy isunlawful, though they did include declarations as to what the law requires in theCrown's application of its overlapping interests policy, which is the approach taken bythe substantive judgment. The judgment both commends and criticises aspects ofCrown policy and practice and aspects of the Red Book. The primary criticisms are:(a) The Crown's failure to adopt a practice or policy of assigning anyonewith expertise to understand and advise it on the tikanga implicationsof its Treaty settlements decisions.48(b) "[T]he language of the Red Book 2018 is striking in its determinedavoidance of references to tikanga and tikanga interests."49(c) Most particularly:[623] The Red Book 2021 pays greater attention to tikanga than didits predecessor. That would not be difficult. But it does not explicitlyacknowledge the legal requirement on the Crown to consider tikanga,including the implications of mana whenua or other tikanga-basedinterests, and that it may not act unreasonably having regard totikanga, in order to act consistently with the Treaty of Waitangi. AsMr Mahuika submits, the Crown must deliberately turn its mind totikanga. Ignoring tikanga when it is relevant in a Treaty settlementcontext would be unlawful. And given the necessary intense focus byofficials and Ministers on the settlements at hand at any given time,not spelling out that requirement in the Crown's policy runs the riskof prejudicing overlapping tikanga interests of iwi and hapū.(d) And, in relation to tikanga and Treaty settlements in Tāmaki Makaurau:[637] Fifth, the illustrative examples of the process of settling Treatyclaims in Tāmaki Makaurau suggest that the Crown has made effortsto understand the position of iwi and hapū regarding the history, butnot the tikanga, of their overlapping interests. Overlapping interestscould have been addressed earlier in some of the processes. At timesthe Crown appears to have been rather quick to require responses fromoverlapping iwi before reaching for its own unilateral decisions of lastresort. The Crown has not sought expert advice from pūkenga toenable it to fully understand and consider the tikanga dimensions ofthose interests. Accordingly, the Crown has not taken into account afully informed understanding of the implications of its decisions for48 At [615].49 At [621].the tikanga interests of all iwi and hapū. The Waitangi Tribunal'sHauraki Report suggests these are not isolated features of CrownTreaty settlement negotiations.[52] Ngāi Kuri, Ngāi Te Rangi and Ngāti Whātua Ōrākei fairly make the point thatthe Red Book is not consistent with the findings of law in the substantive judgment. Itis clear from the substantive judgment that the advice contained in the Red Book isincomplete in not explicitly acknowledging the legal requirement on the Crown toconsider tikanga. And I accept that the Crown's statements of policies in the Red Bookare important to iwi and hapū, and to Crown officials, who are involved in Treatysettlement negotiations. Updating the Red Book might prevent future decision-makersfrom making unlawful decisions in reliance on incomplete advice. Failing to updatethe Red Book might even, arguably, therefore be considered unreasonable.[53] But the criticisms of the Red Book contained in the substantive judgment donot, quite, amount to a finding that the policy in the Red Book is unlawful.Accordingly, the proposed declaration does not properly reflect the judgment. Andthe Crown assures the Court that it is reviewing the implications of the substantivejudgment for the Red Book policies. No doubt that will be carefully scrutinised.Costs[54] All parties have had some measure of success in this ground-breaking casewith a public interest element. My preliminary inclination is to let costs lie where theyfall. If any of the parties wish to seek costs, despite that indication, I make timetablingdirections below. I note that the interveners and interested parties were permitted toparticipate in these proceedings on the basis that they shall neither seek nor be subjectto costs.5050 Ngāti Whātua Ōrākei v Attorney-General HC Auckland CIV-2015-404-2033, 5 August 2019 at[2]; and Ngāti Whātua Ōrākei v Attorney-General [2019] NZHC 2363 at [25].Result[55] I make the following declarations:(a) Ngāti Whātua Ōrākei currently have ahi kā and mana whenua inrelation to the area identified in Map 1 of the substantive judgmentof 28 April 2022 in central Tāmaki Makaurau, with all theobligations at tikanga that go with that, according to the tikangaand historical tribal narrative and tradition of Ngāti WhātuaŌrākei.(b) The tikanga and historical tribal narratives and traditions ofMarutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, andTe Ākitai Waiohua do not currently recognise that Ngāti WhātuaŌrākei have ahi kā and mana whenua, as those concepts areconceived of by Ngāti Whātua Ōrākei, in relation to the areaidentified in Map 1 of the judgment of 28 April 2022 in centralTāmaki Makaurau.[56] If any of the parties wish to seek costs, despite my preliminary inclination thatthey should lie where they fall, they should file and serve submissions of nor morethan 10 pages within 20 working days of this judgment. Those opposing should fileand serve submissions of the same length within 15 working days of that. Thoseseeking costs may reply in up to five pages within five working days of that.Palmer JCounsel/Solicitors:J E Hodder KC, WellingtonChapman Tripp, AucklandCrown Law, WellingtonAtkins Holm Majurey, AucklandMcCaw Lewis, HamiltonKahui Legal, WellingtonChapman Tripp, Wellington