NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY_x001e_GENERAL [2018] NZSC 84

NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY-GENERAL [2018] NZSC 84 [17 September 2018]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 135/2017[2018] NZSC 84BETWEEN NGĀTI WHĀTUA ŌRĀKEI TRUSTAppellantAND ATTORNEY-GENERALFirst RespondentNGĀTI PAOA IWI TRUSTSecond RespondentMARUTŪĀHU RŌPŪ LIMITEDPARTNERSHIPThird RespondentHearing: 14 and 15 May 2018Court: Elias CJ, William Young, O'Regan, Ellen France and Arnold JJCounsel: J E Hodder QC, J W J Graham and R M A Jones for AppellantD J Goddard QC and D A Ward for First RespondentP F Majurey for Third RespondentP A Joseph, T D Smith and R L Goss for IntervenersJudgment: 17 September 2018JUDGMENT OF THE COURTA The appeal is allowed in part. The claim is reinstated apartfrom paragraphs (e) and (f) of the declaratory reliefsought. The proceeding is remitted to the High Court forhearing.B The first and third respondents must pay the appellant oneset of costs of $25,000 plus usual disbursements. We allowfor second counsel.C The costs orders in the High Court and Court of Appealare set aside. If costs in those Courts cannot be agreed theyshould be set by the Court of Appeal and High Courtrespectively in light of this judgment.____________________________________________________________________REASONSPara No.William Young, O'Regan, Ellen France and Arnold JJ [1]Elias CJ [69]WILLIAM YOUNG, O'REGAN, ELLEN FRANCE AND ARNOLD JJ(Given by Ellen France J)Table of ContentsPara No.Introduction [1]Background [5]Narrative of events [7]The claim [20]The judgments in the High Court and the Court of Appeal [30]The appeal [34]Discussion [35]Some principles [36]Application of the principles to the present case [50]Result [67]Introduction[1] Ngāti Whātua Ōrākei Trust challenges various decisions on the basis that theCrown breached or will breach its rights in relation to the central Auckland region.The claim arises in the context of proposed settlements of historical Treaty of Waitangi(Treaty) claims between the Crown and Ngāti Paoa Iwi Trust and between the Crownand Marutūāhu Rōpū Limited Partnership. It is intended the settlements will beimplemented by legislation.[2] Ngāti Whātua Ōrākei's claim was struck out in the High Court. Davison Jconsidered, amongst other matters, that the relief sought directly related to thedevelopment of legislative proposals and granting the declarations sought wouldbreach the principle of non-interference by courts in parliamentary proceedings.1 Thedecision to strike out was upheld in the Court of Appeal on the basis the relief sought1 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 [NgātiWhātua Ōrākei (HC)].would comprise an interference with parliamentary proceedings.2 Ngāti WhātuaŌrākei was given leave to appeal to this Court on the question of whether the Court ofAppeal should have allowed the appeal.3 The principal issue for determination on theappeal is whether the claim should be permitted to proceed on the basis that it isproperly characterised as a claim for the recognition of various rights rather than as achallenge to the decision to legislate.[3] For the reasons which follow, we consider the appeal should be allowed in partwith the result that Ngāti Whātua Ōrākei can largely pursue its claim for declarationsas to its rights. As we shall also explain Ngāti Whātua Ōrākei cannot, as its counselaccepted, ask the Court to declare that the proposed decisions to legislate to implementthe settlement with Ngāti Paoa and with Marutūāhu are invalid. In the presentproceeding that means Ngāti Whātua Ōrākei cannot pursue the challenge to theproposed decision to transfer specified properties which is to be implemented bylegislation. Some re-pleading will accordingly be necessary. We add that theexistence of the proceeding does not prevent the responsible Minister from introducingthe proposed settlement legislation to the House of Representatives or provide anybasis for deferral of consideration and passage of the settlement legislation.[4] To put the issues on appeal in context, it is first necessary to set out thebackground.Background[5] The description of the factual narrative which follows focuses on the recenthistory and matters relevant to the current proceedings. It is helpful to preface thatdiscussion by noting the Waitangi Tribunal's observations that the situation in TāmakiMakaurau (Auckland) is "very particular".4 The position is captured in this passage2 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 554, [2018] 2 NZLR 648(Kós P, Cooper and Asher JJ) [Ngāti Whātua Ōrākei (CA)].3 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 24. The second respondent, NgātiPaoa Iwi Trust, abided the decision of the Court. Ngāi Te Rangi Settlement Trust and Ngāti KuriTrust Board were given leave to appear as interveners. A memorandum in support of the appellantand the interveners was filed on behalf of Te Whakakitenga o Waikato Inc.4 Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007) at 13.from the Tribunal's report into the process adopted by the Crown in its negotiationswith Ngāti Whātua Ōrākei:5Auckland is now a highly urbanised area with very valuable real estate. In thepre-contact era, Tāmaki was likewise seen by Māori as a desirable place tolive, no doubt because of its warm climate, multiple harbours, and goodvolcanic soil. Unsurprisingly, successive waves of invaders competed fordominance there down the centuries, and the early establishment of Pākehāsettlement on the shores of the Waitematā only added to its attractions. Thus,it was – and remains – an intensively occupied part of the country, whereconstant habitation by changing populations of Māori as a result of invasions,conquests, and inter-marriage has created dense layers of interests. Thedisposition of those interests as between the various groups identifying astangata whenua there in 2007 is the subject of controversy.[6] The recent factual narrative is set out in detail in the decisions of the lowerCourts.6 We draw heavily on those descriptions in the summary which follows.Narrative of events[7] For present purposes, it is sufficient to start with the signing of an agreementin principle to settle historical Treaty claims entered into between NgātiWhātua o Ōrākei Māori Trust Board and the Crown in June 2006. The agreementrecorded the parties' in principle agreement to work together, in good faith, towards adeed of settlement. The deed and the agreement would be subject to the passage oflegislation.[8] The relevant feature of the agreement in principle was a clause giving NgātiWhātua Ōrākei a right of first refusal over various properties, including Crown-ownedproperties, across an area extending over the Auckland isthmus from the WaitematāHarbour in the north to the Manukau Harbour in the south, across to Avondale in thewest and including parts of Onehunga, Ellerslie and Remuera to the east (the 2006right of first refusal land). The area includes an area transferred to the Crown inOctober 1840 which encompassed some 3,000 acres between Hobson Bay(Matahaharehare) in the east, Cox's Creek (Opou/Opoututeka) in the west and MountEden (Maungawhau) in the south (the 1840 transfer land).5 At 13.6 Ngāti Whātua Ōrākei (HC), above n 1, at [10]–[78]; and Ngāti Whātua Ōrākei (CA), above n 2,at [5]–[54].[9] The terms of the 2006 agreement in principle caused concern among other iwiand hapū of Tāmaki Makaurau. In particular, they considered their interests had beenadversely affected by the process adopted. A claim was filed with the WaitangiTribunal. In 2007 the Tribunal undertook an urgent inquiry into the process adoptedby the Crown in its negotiations with Ngāti Whātua Ōrākei. As the Court of Appealobserved:7The Tribunal concluded in its report of 12 June 2007 that as regards [othertangata whenua groups in Tāmaki Makaurau], the Crown's policy and practicehad been unfair, both as to process and as to outcome. It recommended thatthe proposed settlement with Ngāti Whātua Ōrākei not proceed at that stage,and that instead, the Office of Treaty Settlements should work with othergroups to negotiate settlements for them. Once that had been done, it wouldbe possible to arrive at a situation where appropriate redress could be offeredto Ngāti Whātua Ōrākei and all the relevant groups.[10] There was then a break in the negotiations with Ngāti Whātua Ōrākei. TheRt Hon Sir Douglas Graham was asked by the Minister for Treaty of WaitangiNegotiations (the Minister) to facilitate discussions with all of the interested parties.Sir Douglas carried out a series of meetings with the relevant iwi and hapū.8 Thediscussions culminated in an agreement on 12 February 2010 referred to as the NgāMana Whenua o Tāmaki Makaurau and Crown Framework Agreement (theFramework Agreement). The members of Ngā Mana Whenua o Tāmaki Makaurauwere:(a) Ngāti Whātua Rōpū, referred to in the Framework Agreement as thehapū of Ngāti Whātua with spiritual, traditional and historical interestsin respect of any of the maunga;(b) Tāmaki Rōpū, listed in the Framework Agreement as Te Kawerau ā Maki,Ngāti Te Ata, Ngāti Tamaoho, Te Ākitai and Ngāi Tai ki Tāmaki; and(c) Marutūāhu Rōpū, listed in the Framework Agreement as Ngāti Paoa, NgātiMaru, Ngāti Whanaunga and Ngāti Tamaterā.7 Ngāti Whātua Ōrākei (CA), above n 2, at [10].8 Mr Majurey for Marutūāhu described the report produced by Sir Douglas following this processas the "blueprint" for the steps which followed.[11] The Framework Agreement recognised that each of the members had"legitimate spiritual, ancestral, cultural, customary and historical interests withinTāmaki Makaurau". The agreement went on to provide for the vesting of theCrown-owned parts of 11 maunga and for their governance. Relevantly, for presentpurposes, the Crown offered members a right of first refusal over a period of 170 yearsin relation to all land held by core Crown agencies over a defined area.9[12] At the same time, on 12 February 2010, Ngāti Whātua o Ōrākei Māori TrustBoard and the Crown entered into a supplementary agreement to the 2006 agreementin principle. The purpose of this further agreement was to detail how the 2006agreement in principle could be amended so negotiations on a deed of settlement couldbe finalised. The supplementary agreement deleted the provisions in the 2006agreement in principle relating to the right of first refusal. It was noted that theFramework Agreement provided redress with respect to the right of first refusalredress.[13] The Crown and Ngāti Whātua Ōrākei entered into a deed of settlement ofhistorical Treaty claims on 5 November 2011. At this point, it is only necessary tonote the acknowledgement in cl 4.9 of the deed that development of commercialredress in cl 4.810 "under the Tāmaki Makaurau collective deed will be in accordancewith [the] Framework Agreement [of] 12 February 2010". The settlement withNgāti Whātua Ōrākei was implemented by the Ngāti Whātua Ōrākei ClaimsSettlement Act 2012 (the 2012 Settlement Act).[14] Following further negotiations, on 8 September 2012 Ngā ManaWhenua o Tāmaki Makaurau and the Crown entered into a collective redress deed.The Court of Appeal described this as "effectively the successor to the FrameworkAgreement, and a more formal expression of the matters agreed in it".11 The9 Comprising land in the north from a line between south of Muriwai and Okura, that is south ofWest-Harbour, Whenuapai, Hobsonville, Greenhithe, Cuthill and Glenvar, and in the south by aline between just north of the Waikato Confiscation Line in Port Waikato to Miranda with somespecific exclusions (including certain Crown Forests land).10 Clause 4.8 acknowledged the deed did not provide for particular cultural and commercial redressto be addressed through the collective deed. Clause 4.8.4 said the commercial redress was "theparticipation of Ngāti Whātua Ōrākei in a right of first refusal over land in Tāmaki Makaurau fora period of 170 years".11 Ngāti Whātua Ōrākei (CA), above n 2, at [29].collective redress deed was implemented by the Ngā Mana Whenua o TāmakiMakaurau Collective Redress Act 2014 (the Collective Redress Act). Section 120 ofthat Act addresses the process to be followed where land covered by the right of firstrefusal was required for another Treaty settlement.[15] The Crown has since continued to negotiate the settlement of Treaty claimswith other iwi. In July 2011, an agreement in principle "equivalent" was signed withNgāti Paoa. The agreement made reference to properties at 71 Grafton Road and136 Dominion Road as sites over which Ngāti Paoa sought to obtain commercialredress. Both properties are within the area of the 2006 right of first refusal land andthe 1840 transfer land.[16] The Marutūāhu Iwi collective, comprising Ngāti Maru, Ngāti Paoa, NgātiTamaterā, Ngāti Whanaunga and Te Patukirikiri, reached agreement with the Crownin a "Record of Agreement in Relation to Marutūāhu Iwi Collective Redress" inMay 2013. The properties the Crown was obliged to transfer under the agreementincluded "up to 13 Ministry of Education sites".[17] The first decision involved a decision to transfer properties at 71 Grafton Roadand 136 Dominion Road to Ngāti Paoa. In a letter dated 17 August 2015, the Ministerinformed Ngāti Whātua Ōrākei of his "preliminary decision" to transfer theseproperties to Ngāti Paoa. In that letter the Minister gave Ngāti Whātua Ōrākei twoweeks to provide any information on Ngāti Paoa's "historical or contemporaryinterests or any other information" that Ngāti Whātua Ōrākei wished for him to takeinto account. On 27 August 2015, Ngāti Whātua Ōrākei filed judicial reviewproceedings seeking review of that preliminary decision as a wrongful exercise ofpower under s 120 of the Collective Redress Act. Subsequently, on 21 May 2016 theMinister revised his decision, determining that he would propose legislation toParliament that would provide for the transfer of the properties to Ngāti Paoa. Thiswas communicated to Ngāti Whātua Ōrākei in a letter dated 8 July 2016.[18] The second decision which prompted the initiation of the present proceedingswas a decision to transfer properties to the Marutūāhu Iwi Collective. On 13 May2016, the Minister wrote to Ngāti Whātua Ōrākei Trust. The letter recorded what wasdescribed as a "final" decision to include in the redress offer to Marutūāhu Collectiveone cultural redress property (the Fred Ambler Lookout Site) and the opportunity topurchase up to nine commercial properties in Tāmaki Makaurau. A later (20 May2016) letter from the Crown Law Office on behalf of the Minister noted the intentionwas that this transfer decision would be implemented only through settlementlegislation.[19] Finally, in terms of the current status of the settlement proposals, we were toldthat the Ngāti Paoa negotiators had initialled the settlement deed but that theratification process had not begun. Further, we were advised that there are ongoingdiscussions with Marutūāhu and that the settlement deed had not yet been initialled.Significant progress has been made in relation to the drafting of legislation toimplement both deeds.12The claim[20] The second amended statement of claim (the statement of claim) is a claim forjudicial review alleging illegality and a failure to consider mandatory relevantconsiderations. Various declarations are sought.[21] The pleadings begin with a statement of Ngāti Whātua Ōrākei's status namelythat, as at the signing of the Treaty on 6 February 1840, Ngāti Whātua Ōrākei "was anestablished hapū" in the central Auckland region. It is averred that despite thealienation of its land, Ngāti Whātua Ōrākei has maintained its ahi kā in areas of thecentral Auckland region including the 2006 right of first refusal land and the 1840transfer land.[22] The pleadings then canvass aspects of the factual narrative as outlined above,namely, Ngāti Whātua Ōrākei's settlement with the Crown, the Tāmaki Makauraucollective arrangements and the decisions relating to Ngāti Paoa and Marutūāhu.Particulars are given for what are described, respectively, as the "Ngāti PaoaDecision", the "Revised Ngāti Paoa Decision" and the "Marutūāhu Decision" (the12 There was evidence that, as a matter of practice, the drafting of legislation to give effect to a deedof settlement occurs in parallel with the drafting of the deed.Ngāti Paoa and Marutūāhu decisions). The Ngāti Paoa Decision is the preliminarydecision of 17 August 2015 to transfer land at 71 Grafton Road and 136 DominionRoad to Ngāti Paoa. The Revised Ngāti Paoa Decision is the decision of 8 July 2016,referred to above, to offer the two properties to Ngāti Paoa as part of its redress to beincluded in the proposed settlement legislation. The Marutūāhu Decision is thedecision of 13 May 2016 to transfer the listed properties to Marutūāhu as part of thesettlement with Marutūāhu.[23] The statement of claim identifies a number of constraints said to apply to theCrown's exercise of powers relating to the Ngāti Paoa and Marutūāhu decisions and"any similar decisions". These constraints are identified as requirements to act:22.1 in accordance with tikanga;22.2 in accordance with its commitment in clause 3.10 of the [deed ofsettlement between the Crown and Ngāti Whātua Ōrākei] to repair andmaintain in future its relationship with Ngāti Whātua Ōrākei based onmutual trust, co-operation and respect for the Treaty of Waitangi andits principles;22.3 in accordance with its commitment in [s] 7 of the [2012] SettlementAct to repair and maintain in future its relationship with Ngāti WhātuaŌrākei based on mutual trust, co-operation and respect for the Treatyof Waitangi and its principles;22.4 with appropriate acknowledgement of the ahi kā of Ngāti WhātuaŌrākei;22.5 in a manner which does not erode the mana whenua of Ngāti WhātuaŌrākei;22.6 consistently with the Treaty of Waitangi, its principles, and the honourof the Crown in this context; and22.7 in a manner which upholds and is consistent with the rights andfreedoms affirmed in the United Nations Declaration on the Rights ofIndigenous Peoples (to which Aotearoa New Zealand is a signatory).[24] Paragraph 23 of the statement of claim sets out processes it is said must befollowed so that the Crown fully informs itself of the matters set out in the excerptfrom paragraph 22 of the statement of claim, above. Those processes include full andproper consultation with Ngāti Whātua Ōrākei before developing and considering theNgāti Paoa and Marutūāhu decisions and any similar decisions, and accommodatingthe mana whenua of Ngāti Whātua Ōrākei by "not transferring nor unilaterallydeveloping proposals involving the transfer of land within the 2006 [right of firstrefusal] Land or the 1840 [t]ransfer [l]and" where certain conditions are met.13[25] It is said that the Ngāti Paoa and Marutūāhu decisions are not in accordancewith the matters identified in paragraph 22 of the statement of claim. It follows, thepleadings say, that without relief the Crown will or may continue to concludesettlements involving the transfer of other land within the 2006 right of first refusalland or the 1840 transfer land which do not satisfy the requirements pleaded.[26] The next part of the statement of claim addresses the Crown's overlappingclaims policy, that is the policy by which the Crown resolves claims by two or moreiwi to the same area of land. That policy is said not to address the matters inparagraph 22 and, as a result, reflects a failure of the Crown to meet its obligations.[27] The pleading then asserts the various rights of Ngāti Whātua Ōrākei (and thecorresponding obligations of the Crown) pursuant to Ngāti Whātua Ōrākei'ssettlement deed with the Crown, the 2012 Settlement Act, tikanga, the Treaty, thehonour of the Crown, and the United Nations Declaration on the Rights of IndigenousPeoples.[28] The first ground of review pleads illegality arising from the Ministermisdirecting himself in making the Ngāti Paoa and Marutūāhu decisions, as to thematters in paragraphs 22 and 23. The second ground of review is based on the failureto take into account, as mandatory relevant considerations, the matters inparagraphs 22 and 23. In addition, it is said that to meet its pleaded obligations theCrown had to respect Ngāti Whātua Ōrākei's rights as pleaded.[29] The relief sought is as follows:(a) a declaration that Ngāti Whātua Ōrākei has ahi kā and mana whenuain relation to the 2006 RFR [right of first refusal] Land and the 1840Transfer Land;13 These conditions include the transfer being offensive to Ngāti Whātua Ōrākei as a matter oftikanga or where transfer would "unjustifiably erode the mana whenua of Ngāti Whātua Ōrākei"in the 2006 right of first refusal land or the 1840 transfer land.(b) a declaration that when applying its overlapping claims policy to anyland within the area of the 2006 RFR Land and the 1840 Transfer Landthe Crown must act in accordance with tikanga, and in particular NgātiWhātua Ōrākei tikanga;(c) a declaration that Crown development and making of offers to includeland in the 2006 RFR Land and the 1840 Transfer Land in a proposedTreaty settlement with iwi who do not have ahi kā in respect of thatland must be made in accordance with tikanga, and in particular NgātiWhātua Ōrākei tikanga;(d) a declaration that in order to comply with tikanga whencontemplating, developing or making decisions under its overlappingclaims policy to offer any interest in land within the 2006 RFR Landor the 1840 Transfer Land as part of a proposed Treaty settlement withan iwi which does not have ahi kā in respect of those lands, the Crownmust:(i) appropriately consult with Ngāti Whātua Ōrākei as the iwihaving ahi kā;(ii) acknowledge the ahi kā of Ngāti Whātua Ōrākei as the iwihaving ahi kā;(iii) decline to include the land in the proposed settlement if thereis evidence that the transfer of the land would unjustifiablyerode the mana whenua of Ngāti Whātua Ōrākei as the iwihaving ahi kā;(iv) decline to include the land in the proposed settlement wherethe land has previously been the subject of a gift to the Crownunless Ngāti Whātua Ōrākei, the gifting iwi, has provided itsconsent to the transfer;(e) a declaration that the Ngāti Paoa Decision, the Revised Ngāti PaoaDecision and Marutūāhu Decisions have been developed and madeinconsistently with Crown's obligations to make those decisions inaccordance with tikanga; and(f) a declaration that the Ngāti Paoa Decision, the Revised Ngāti PaoaDecision and Marutūāhu Decisions have been developed and madeinconsistently with the Treaty of Waitangi and its principles, and NgātiWhātua Ōrākei's rights as affirmed by the United Nations Declarationon the Rights of Indigenous Peoples.The judgments in the High Court and the Court of Appeal[30] In the High Court, Davison J found the claim was not consistent with theprocess and agreements which followed the Waitangi Tribunal report leading to theenactment of the Collective Redress Act. In addition, the Judge said that the claimconcerned decisions made in the context of the development and preparation oflegislation which, if passed, would provide for the lawful transfer of the properties inissue. Davison J also saw the decision in issue as a "quintessentially political"decision against which there was no "legal yardstick" to measure.14 On this basis, theclaim could not possibly succeed and was struck out.[31] The Court of Appeal said the Judge was wrong to make factual findings aboutthe effect of the collective arrangements at the strike-out stage but found the judgmentdid not turn on those factual findings. Rather, the critical factors were the impact ofthe proposed legislation and the non-justiciable nature of the decisions.[32] The Court of Appeal considered that the principle of non-interference withparliamentary proceedings was engaged. That was primarily because the challengedproposal was not that the properties be transferred to Ngāti Paoa and Marutūāhu "butthat there be legislation authorising that to occur".15 The Court said it was "wrong inprinciple for a court to declare unlawful an outcome intended to be secured only ifauthorised by Parliament".16 The Court accepted that the declaratory relief sought didnot put the challenge in exactly those terms. But, the Court said, "added together, thedeclarations sought would have that effect".17 Although the pleadings gave theappearance of looking to the future:18 if made now in the course of a process already under way and withlegislation intended to be introduced, it could only be read as a decision by theCourt that the intended legislation to give effect to the disputed decisionswould breach Ngāti Whātua Ōrākei's rights.[33] The Court also considered that the only point of the declarations sought wouldbe related to the development of legislative proposals. That was because, "in theabsence of legislation they would otherwise be an empty gesture declaring unlawfulsomething that was not intended to happen".19 Finally, the Court said that putting thematter in another way, "there is no proposal that will affect Ngāti Whātua Ōrākei'srights other than a legislative one".2014 Ngāti Whātua Ōrākei (HC), above n 1, at [141] and [142].15 Ngāti Whātua Ōrākei (CA), above n 2, at [100].16 At [100].17 At [101].18 At [102].19 At [104].20 At [105].The appeal[34] It is common ground that the function of the courts includes makingdeclarations as to rights. Nor is there any dispute that it may be possible for NgātiWhātua Ōrākei to advance a claim in relation to customary rights. Where the partiestake issue is as to whether Ngāti Whātua Ōrākei's current claim is properlycharacterised as a claim about its rights or whether, as the Crown and Marutūāhucontend and the lower Courts found, the claim is a challenge to legislative proposals.The parties' submissions sufficiently appear in the discussion of the issues whichfollows.Discussion[35] The focus in the judgments below and in argument on the principle ofnon-interference in parliamentary proceedings means it is helpful to begin with somediscussion of that principle.Some principles[36] Some propositions as to the scope of the principle are not challenged. The firstis the proposition, accepted in Te Runanga o Wharekauri RekohuInc v Attorney-General (Sealords), that a court would not make an order to prevent theintroduction of a Bill to the House of Representatives.21 The second is the propositionthat the courts should not try to "dictate, by declaration or a willingness to awarddamages or any other form of relief, what should be placed before Parliament".22[37] In addition, the cases provide some clear illustrations of what comprises theimpeachment of the proceedings in Parliament. For example, the House of Lords inBritish Railways Board v Pickin rejected a challenge to legislation based on the claim21 Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) [Sealords]at 307–308.22 At 308. See also Comalco Power (New Zealand) Ltd v Attorney-General [2003] NZAR 1 (HC)(successful strike-out application on the basis it was not possible to obtain a declaration that theintroduction and passage of legislation is a breach of contract); Westco Lagan Ltd vAttorney-General [2001] 1 NZLR 40 (HC) at [98]: "the Courts should not interfere so as tofrustrate the powers of the House to enact legislation"; Philip A Joseph Constitutional andAdministrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at 530–534;and see David McGee "The Legislative Process and the Courts" in Philip Joseph (ed) Essays onthe Constitution (Brookers, Wellington, 1995) 84 at 93–94.Parliament was misled by means of a false recital in the preamble of an Act.23 Thatclaim was seen to involve the impeachment of proceedings in Parliament.24 There arealso cases illustrating that legislation can be proposed that would cut across rights.25[38] Following on from that last point, New Zealand authorities in the Treatycontext have also attached significance to the question of whether what is sought is adeclaration of rights or whether the only impact on rights is as a result of legislation.An illustration of that approach is Milroy v Attorney-General, relied on by the Crownin this case.26 In Milroy the Court of Appeal dealt with a challenge to a settlementagreement between the Crown and Ngāti Awa which would remove forest land fromthe reach of Tūhoe. Tūhoe were described as cross-claimants in relation to that land.The transfer was to be implemented by legislation and the appellants sought tochallenge the advice by officials preparatory to the legislation.[39] The Court considered that the claim was an attempt "to draw the Court into anexamination of the accuracy and completeness of the advice of officials in the courseof the formulation of government policy even though no rights" were affected by theadvice.27 This was seen as taking the courts into "the very heart of the policy formationprocess of government" in a situation where the decision that would impact on Tūhoe'srights was the resulting legislation and executive acts.28[40] The approach in Milroy was applied in New Zealand MaoriCouncil v Attorney-General.29 The Crown had entered into a deed of settlement with23 British Railways Board v Pickin [1974] AC 765 (HL).24 See also Rothmans of Pall Mall (NZ) Ltd v Attorney-General [1991] 2 NZLR 323 at 330.25 New Plymouth District Council v Waitara Leaseholders Assoc Inc [2007] NZCA 80; (2007)2 NZTR ¶17-005; leave to appeal declined: Waitara Leaseholders Assoc Inc v New PlymouthDistrict Council [2007] NZSC 44.26 Milroy v Attorney-General [2005] NZAR 562 (CA). For a recent illustration of this approach see:Motairehe Whanga Te Uri o Rangihokaia ko Ngātiwai Ki Aotea Inc v MacDonald [2018] NZHC1231.27 At [11]. A similar approach was taken in Canada (Governor General in Council) v Misikew CreeFirst Nation 2016 FCA 311, (2017) 405 DLR (4th) 721. De Montigny JA (with whom Webb JAagreed) rejected a claim the Crown had an obligation to consult the Misikew Cree whencontemplating changes to legislation that might affect the rights of the Misikew Cree. Pelletier JAagreed in the result but considered the idea the legislative process was "indivisible" from the pointof policy formation to assent might be "problematic" in some cases: at [87]. The Supreme Courtof Canada gave leave to appeal from this decision and has heard the appeal. Judgment is yet to bedelivered.28 At [11].29 New Zealand Maori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318.Te Arawa. The New Zealand Maori Council and others claimed that the Crown hadacted in breach of certain guarantees predating the Crown Forest Assets Act 1989 andin breach of the Crown's statutory duties under that Act by entering into the deed andthat the transfer of Crown forest land under the deed was contrary to fiduciary duties.The relief sought included declarations relating to obligations under the settlementdeed and as to the fulfilment of fiduciary duties.[41] The Court agreed with the appellants that the 1989 Act did not contemplate theproposed arrangements provided for in the deed with Te Arawa. Nonetheless, theCourt said it was not appropriate to make a declaration that a future Act of Parliamentwould, if passed, override an earlier one. Further, the other declarations sought wereseen as predicated on the proposition that the Crown had bound itself to so act. Butthat was not so because the agreement was conditional on legislation. Accordingly,the only commitment made under the deed was a commitment to introduce asettlement Bill. That brought the case into line with cases like Rothmans of Pall Mall(NZ) Ltd v Attorney-General30 and Sealords. Further, the ability of the Crown topropose legislation to alter its contractual obligations had similarities to ComalcoPower (New Zealand) Ltd v Attorney-General,31 Westco Lagan Ltd and the NewPlymouth District Council v Waitara Leaseholders Assoc Inc32 as well as Milroy.Accordingly, the decision as to whether the settlement deed should becomeunconditional was seen as one for Parliament.[42] By contrast to Milroy and the New Zealand Maori Council case, the claim inPort Nicholson Block Settlement Trust v Attorney-General was permitted to proceed.33The declarations sought in that case focused on consistency between the TaranakiWhānui deed and the Ngāti Toa deed. That was not seen as crossing the line becauseit did not attempt to intervene in the legislative process. The challenge wascharacterised as "a less problematic process of construing the promises the Crownmade to Taranaki Whānui in its Deed and comparing those to the promises made toNgāti Toa in its Deed".34 Further, Williams J said:30 Above n 24.31 Above n 22.32 Above n 25.33 Port Nicholson Block Settlement Trust v Attorney-General [2012] NZHC 3181.34 At [60].[62] There are additional considerations. Unlike the way the case appearsto have been pitched in Milroy, there are rights at issue here. If TaranakiWhānui is correct in the assertions made, then they have rights and interestsunder the Settlement Deed and Act that are, or may be, justiciable. There is asatisfactory legal yardstick that a court can utilise in resolving the controversy.[63] Provided they are careful not to cross the boundary into the domain ofParliament or the executive's role in advancing legislation, it would be wrongin principle and dangerous in practice for the courts to leave the Crown to"acquit itself as best it may" as the "sole arbiter of its own justice", where thecontroversy raises justiciable issues of statutory or deed interpretation orindeed of customary law if properly pleaded.(footnotes omitted, emphasis added)[43] A different remedy was adopted in Te Ohu Kai Moana TrusteeLtd v Attorney-General in which the High Court dealt with a challenge to theKermadec Ocean Sanctuary Bill 2016.35 The plaintiffs in that case characterised theirclaim as seeking a declaration as to their existing rights, for example, to quota arisingout of the Treaty of Waitangi Fisheries settlement. The Attorney-General sought, andwas granted, a temporary stay of the proceeding.36[44] The Judge approached the matter on the basis "that there may be a spectrumand it is a matter of assessing on which side of the line a particular proceeding falls".37The mere fact that there was legislation in the House was not seen as able to "operateas a ban on consideration of all related issues".38 Simon France J accepted that theproceeding was not solely directed at the Kermadec Bill. But, given there was now aBill moving through the House, the "comity" principle required some respect.39 It wasalso seen as relevant that what was sought was "a temporary lull" to allow Parliamentto complete its process.4035 Te Ohu Kai Moana Trustee Ltd v Attorney-General [2016] NZHC 1798, [2016] NZAR 1169.36 A stay was also granted in relation to other proceedings relating to the Kermadec Ocean SanctuaryBill in Ngāti Mutunga O Wharekauri Asset Holding Co Ltd v Attorney-General [2017] NZHC2482, [2018] NZAR 18. Clark J found the claim engaged s 11 of the Parliamentary Privilege Act2014. Section 11 prevents the offering of evidence and so on in a court or tribunal concerningproceedings in Parliament for various stated purposes.37 At [24].38 At [24], citing, to illustrate, Thompson v Treaty of Waitangi Fisheries Commission [2005]2 NZLR 9 (CA).39 At [26]. The comity principle is usefully discussed in Prebble v Television New Zealand Ltd[1994] 3 NZLR 1 (PC), and see Parliamentary Privilege Act, s 4(1)(b).40 At [26].[45] The Judge noted that there were aspects of the case that could continue at thesame time as the legislative process. Whether the source of the plaintiff's quota sharesin the waters around the Kermadec Islands, namely the Treaty of Waitangi and theFisheries settlement, carries with it "particular obligations before the Crown institutessteps to (arguably) lessen the value of the settlement" was seen as "a matter capableof exploration".41 But, there was no suggestion of severing aspects of the claim andother aspects did cross over into the impermissible.42[46] From the cases to date, there remain questions about the exact scope,qualifications and basis of the principle of non-interference in parliamentaryproceedings.43 As will become apparent, it is not necessary in the present case toresolve the exact metes and bounds of the principle. It is, nonetheless, appropriate tosound a note of caution at the extent to which the principle of non-interference inparliamentary proceedings has been held to apply to decisions somewhat distant from,for example, the decision of a minister to introduce a Bill to the House or from debatein the House. It would be overbroad to suggest that the fact a decision may, potentially,be the subject of legislation would always suffice to take the advice leading up to thatdecision out of the reach of supervision by the courts. That would be to ignore thefunction of the courts to make declarations as to rights. In that respect, it is relevantthat the observations in Milroy were made in the context of acceptance by counsel forthe appellants that the officials' advice did not affect the rights of any person or havethe potential to do so.[47] The Court of Appeal in Milroy described the test as to what amounts tointerference in parliamentary proceedings as one of function, rather than "remotenessin time or evolution".44 However, it may not be appropriate to discount out of handthe relevance of timing in determining the reach of the principle of non-interference41 At [27]. To similar effect see Morrison v Treaty of Waitangi Fisheries Commission [2004] 1 NZLR419 (HC) (plaintiffs could challenge validity of certain aspects of the Treaty of Waitangi FisheriesCommission's proposed allocation plan but Court could not make an order stopping theintroduction of legislation to implement the plan). Contrast: Potaka-Dewes v Attorney-General[2009] NZAR 248 (HC).42 The claim for a declaration that the terms proposed by the Crown breached the Crown's duty ofgood faith was seen as crossing the line because those terms were only a reference to the terms ofthe Bill.43 See Sealords, above n 21, at 307–308.44 At [17].in parliamentary proceedings. As the Court of Appeal in Sealords observed, theprinciple of non-interference with parliamentary proceedings can be characterised as"the corollary" of the "implied right to freedom of expression in relation to public andpolitical affairs [that] necessarily exists in a system of representative government".45That suggests a rather more direct temporal link to what occurs in the House than wasthe case in Milroy.[48] As foreshadowed, it is not necessary to finally resolve these questions here.That is because it is possible to identify in the present claim public law decisions whichcan be the subject of challenge (whatever their ultimate merits) without interferencewith parliamentary proceedings. On that basis, the Court of Appeal was wrong tocharacterise the relief sought as confined to a challenge to the legislative proposal forthe transfer of the specified properties. Nor was it correct to find that the only impacton Ngāti Whātua Ōrākei will be through the proposed legislation. Rather, there arelive issues as to the nature and scope of the rights claimed which Ngāti Whātua Ōrākeishould be permitted to pursue in the usual way.[49] We turn then to consider the pleadings and identify the aspects of the claim thatshould be allowed to proceed applying the principles applicable to a strike-outapplication.46 We preface this discussion by noting that the pleadings will requiresome re-working to reflect the discussion which follows.47Application of the principles to the present case[50] Underlying the statement of claim is the assertion of Ngāti Whātua Ōrākei'srights arising either out of the Treaty of Waitangi or customary rights in relation to the2006 right of first refusal land and the 1840 transfer land. Second, there is somereference to rights arising from the 2012 Settlement Act. Third, it is possible to discerna challenge to the application in future cases of the Crown's overlapping claims policy.Fourth, there is a claim raising issues about the approach to be taken to the giving of45 At 308.46 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [32]–[33] per Elias CJ andAnderson J. See also Richardson P's summary of principles in Attorney-General v Prince [1998]1 NZLR 262 (CA) at 267–268; and North Shore City Council v Attorney-General [2012] NZSC49, [2012] 3 NZLR 341 at [146] per Blanchard, McGrath and William Young JJ.47 The written submissions for the appellant set out revised declarations but we address the form ofthe pleading in the second amended statement of claim: see the relief sought outlined at [29] above.a notice under s 120 of the Collective Redress Act. Finally, there are associated claimsto particular processes which are said to flow from the asserted rights. We discusseach of these heads of claim in turn.[51] The first aspect identified is reflected in the first of the declarations sought(paragraph (a)), namely, that Ngāti Whātua Ōrākei has ahi kā and mana whenua inrelation to the 2006 right of first refusal land and the 1840 transfer land. No doubt theNgāti Paoa and Marutūāhu decisions were the catalyst for the proceeding and aspectsof the claim are directed primarily to those specific decisions. That said, on its face,this aspect of the claim is not directed solely to those decisions. This point wasrecognised by Davison J in the High Court.48 The Judge said the declaration soughtin paragraph (a) did not itself raise an issue in terms of the non-interference principle.Rather, the problems foreseen by the Judge concerning paragraph (a) related to thefact the Tribunal had considered the question and a perceived absence of utility.[52] As to the first concern referred to by the Judge, no doubt it will be argued attrial that any rights Ngāti Whātua Ōrākei had have been conceded by the processleading up to and including the enactment of the Collective Redress Act. Marutūāhu,for example, argue that Ngāti Whātua Ōrākei expressly agreed to the removal of theonly measure in its Treaty settlement that reflected the exclusivity now asserted. Butthese are questions for trial, as the Court of Appeal said. Further, in terms of theconcern about utility expressed by the Judge, and re-iterated in the submissions for theCrown and Marutūāhu, declarations of rights as sought would be relevant to theongoing relationship between Ngāti Whātua Ōrākei and the Crown.[53] The issue also remains live because there may well be other claimant groupswho seek redress from the Crown in the form of interests in land in the 2006 right offirst refusal area or the 1840 transfer land. If current policies are pursued, anysettlement with those other groups may ultimately be the subject of legislation. But itis not inevitable that settlements or all aspects of a settlement will be implemented bylegislation. In any event, where there are potentially rights in issue, it must be opento Ngāti Whātua Ōrākei to seek to clarify its status in the area over which it claims48 Ngāti Whātua Ōrākei (HC), above n 1, at [134].rights short of a challenge to the particular decisions to transfer the specifiedproperties.49[54] The Crown also questions whether the current form of the proceeding, styledas a claim against the Crown, is an appropriately constituted proceeding to deal withcustomary rights. Directions as to service on other members of Ngā ManaWhenua o Tāmaki Makaurau were, however, made at an earlier point by Wylie J andwe understand those directions have been complied with.50 This is not a basis forstriking out the proceeding.[55] As to the second aspect, that is, a claim based on the 2012 Settlement Act, thestatement of claim refers to the acknowledgement by the Crown in 2012 of Treatybreaches and their effect on the ability of Ngāti Whātua Ōrākei to exercise manawhenua. The option of re-pleading to encompass this aspect directly should be givento the appellant. In terms of this and the first aspect of the claim identified, there areanalogies with the Port Nicholson case because of the claims to rights and as tocompliance with the settlement deed.[56] Turning then to the third aspect of the claim that may proceed, that is, thechallenge to the application of the overlapping claims policy to land within the area ofthe 2006 right of first refusal land and the 1840 transfer land. The declaration soughtwould state that the application of the policy in those areas must confirm with tikanga(paragraph (b)).[57] To put this part of the discussion in context, the relevant part of the overlappingclaims policy states:51The Crown can only settle the claims of the group with which it is negotiating,not other groups with overlapping interests. These groups are able to negotiatetheir own settlements with the Crown. Nor is it intended that the Crown willresolve the question of which claimant group has the predominant interest in49 Woolf and Woolf observe that declaratory proceedings "have always played an important part indetermining status": Lord Woolf and Jeremy Woolf Zamir and Woolf: the Declaratory Judgment(4th ed, Sweet & Maxwell, London, 2011) at [3-116].50 Ngāti Whātua Ōrākei Trust v Attorney-General [2016] NZHC 347.51 Office of Treaty Settlements Healing the past, building a future; A Guide to Treaty of WaitangiClaims and Negotiations with the Crown (Wellington, 2018) [the Red Book] at 53.a general area. That is a matter that can only be resolved by those groupsthemselves.[58] At the heart of the complaint on this aspect, it is said that the Crown is wrongto say that tikanga and Treaty rights do not have to be determined prior to the makingof a settlement offer.[59] The same points made about the form of the declaration sought in paragraph (a)apply here. Ngāti Whātua Ōrākei has an ongoing, live, interest in how the policy isapplied in these areas. It is the case that Ngāti Whātua Ōrākei will have to establishthat the policy provides a basis for a reviewable decision52 but it cannot be said it iscertain that claim would fail. The claim should be permitted to proceed.[60] The fourth aspect of the claim identified arises from the declaration sought inparagraph (c) dealing with the process to be applied by the Crown to offers to includeland in the 2006 right of first refusal land and the 1840 transfer land in Treatysettlements with other iwi. The Crown's submission is that such a declaration wouldcut across Parliament's ability to consider legislative proposals because it would resultin limits on what can be brought before Parliament. A similar point is made in relationto the form of relief sought in paragraph (d) dealing with the processes Ngāti WhātuaŌrākei say should apply in order to comply with tikanga in making various decisionsunder the overlapping claims policy. However, both declarations are framed generallyand would have application to future decisions. In addition, both paragraphs can beconstrued as raising issues about s 120 of the Collective Redress Act and, in particular,about the process to be followed before a notice is given under s 120.[61] Section 120 provides as follows:120 Land required for another Treaty settlement ceasing to be RFR[right of first refusal] land(1) The Minister for Treaty of Waitangi Negotiations must, for RFR landrequired for another Treaty settlement, give notice to both the RFR52 Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 (HL) at 192–194 perLord Bridge and 206 per Lord Templeman; Attorney-General v Refugee Council of New Zealand[2003] 2 NZLR 577 (CA) at [27], [30], [40], and [46] per Tipping J, on behalf of himself,Blanchard and Anderson JJ, at [106] and [120]–[121] per McGrath J and see [293] perGlazebrook J; see also Mark Elliott and Jason NE Varuhas Administrative Law: Text and Materials(5th ed, Oxford University Press, Oxford, 2017) at 524–528.landowner and the Limited Partnership that the land ceases to be RFRland.(2) The notice may be given at any time before a contract is formed undersection 127 for the disposal of the land.(3) In this section, RFR land required for another Treaty settlementmeans RFR land that is to be vested or transferred as part of thesettling of historical claims under the Treaty of Waitangi, being thehistorical claims relating to acts or omissions of the Crown before21 September 1992.[53][62] In Ngati Te Ata v The Minister for Treaty of Waitangi Negotiations Whata Jconcluded decisions under s 120 are reviewable.54 In doing so, the Judge rejectedarguments these decisions were not reviewable because of the principle ofnon-interference with parliamentary proceedings and on the basis the decisions were"quintessentially policy driven".55 Whata J said:[52] It is well settled that matters contemporaneously before Parliamentare non-justiciable. But as Mr Kinsler quite properly noted, the Crown electedto use the early transfer procedure rather than give effect to transfer throughthe Ngāti Tamaoho Settlement Bill. While the transfers form part of thebackground to the Bill, they are not subject to the Parliamentary process, sothe standard principle of non-justiability based on non-interference withParliamentary processes has no obvious application.(footnote omitted)[63] There was no dispute that decisions under s 120 are reviewable butMr Goddard QC for the Crown maintained the challenge here was directed to theparticular decisions and, on that basis, engaged the principle of non-interference withparliamentary proceedings.56 However, a challenge to the way in which s 120 isapplied which is independent of the particular decisions triggering the proceeding canbe identified in the claim and is still relevant. That is so even though Ngāti Paoa andNgāti Whātua Ōrākei, we were told, have settled the dispute between themselves overthe two properties.5753 RFR land is defined in s 118 of the Collective Redress Act.54 Ngati Te Ata v The Minister for Treaty of Waitangi Negotiations [2017] NZHC 2058.55 At [51](b).56 Mr Goddard QC argued that s 120 is a machinery provision and not the source of a power totransfer properties.57 In its application for leave to appeal to the Supreme Court Ngāti Whātua Ōrākei said thataccordingly relief was no longer sought in relation to the transfer of the Ngāti Paoa properties.[64] It is not certain that a claim by Ngāti Whātua Ōrākei that there are some processobligations arising in relation to the s 120 notice deriving from the interests or rightsclaimed in the area would fail. That is because it is quite possible that the Crown willseek to remove other land from the relevant areas other than through legislation as, infact, was initially proposed for Ngāti Paoa.[65] The foregoing analysis addresses all but paragraphs (e) and (f) of the reliefsought. As currently drafted, paragraphs (e) and (f) are problematic in terms of theprinciple of parliamentary non-interference. The relief sought in paragraph (e) is adeclaration that the particular decisions, that is, the Ngāti Paoa and Marutūāhudecisions, "have been developed and made inconsistently with the Crown'sobligations to make those decisions in accordance with tikanga". Paragraph (f) seeksa declaration the particular decisions have been made inconsistently with the Treatyand its principles, and with Ngāti Whātua Ōrākei's rights as affirmed by the UnitedNations Declaration on the Rights of Indigenous Peoples.[66] Both paragraphs are framed as challenges to process which may be broader.But the processes are described as relating only to the Ngāti Paoa and Murutūāhudecisions, as specifically defined. In context, the relief sought can only becharacterised as a challenge to the decision which has been made to legislate to transferthe relevant properties albeit the illegality is said to arise because of some prior lackof process. To this extent we agree with the approach taken in the Court of Appeal.We would accordingly strike out these two paragraphs. This would also requirere-pleading of other aspects of the current pleading which are directed towards thetransfer of these particular properties.Result[67] In accordance with the view of the majority, the appeal is allowed in part. Wereinstate the claim apart from paragraphs (e) and (f) of the declaratory relief sought.The proceeding is remitted to the High Court for hearing.[68] Given that the appellant has substantially succeeded in this Court, we orderthat the first and third respondents must pay the appellant one set of costs of $25,000plus usual disbursements. We allow for second counsel. Further, as the strike-outproceedings have failed, the costs orders in the High Court and Court of Appeal areset aside. If costs in those Courts cannot be agreed they should be set by the Court ofAppeal and High Court respectively in light of this judgment.ELIAS CJ[69] Ngāti Whātua Ōrākei Trust appeals a decision of the Court of Appeal affirmingorders of the High Court striking out its application for declaratory relief as to its rightsand interests in central Auckland.58 The declarations were sought by Ngāti WhātuaŌrākei after the Minister for Treaty of Waitangi Negotiations advised that he intendedto transfer some Crown-owned properties in central Auckland to Ngāti Paoa and theMarutūāhu iwi,59 in part-settlement of their claims for relief against the Crown forhistorical Treaty breaches. Ngāti Whātua Ōrākei contended that the transfer by theCrown of these properties, in respect of which it claims mana whenua, is contrary totikanga recognised in New Zealand law and a breach of the Treaty settlement alreadyentered into between Ngāti Whātua Ōrākei and the Crown.60 In addition, it claims thata published policy of the Crown that it is unnecessary to resolve "overlapping claims"before it enters into Treaty settlements is wrong in law.[70] The Crown's proposal for transfer of the properties to Ngāti Paoa wasoriginally to be implemented by administrative action. Several months after NgātiWhātua Ōrākei filed its claim, the Minister announced that the transfer would insteadbe implemented by legislation and that any agreement for the transfer of the landwould be conditional until the legislation was passed. The respondents then appliedto strike out Ngāti Whātua Ōrākei's claim on the basis that, since the properties inissue are to be vested by legislation, Ngāti Whātua Ōrākei's interests are not affectedand cannot found a claim to judicial review before the enactment of legislation58 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516(Davison J) (referred to throughout as Ngāti Whātua Ōrākei (HC)); Ngāti Whātua ŌrākeiTrust v Attorney-General [2017] NZCA 554, [2018] 2 NZLR 648 (Kós P, Cooper and Asher JJ)(referred to throughout as Ngāti Whātua Ōrākei (CA)).59 Marutūāhu comprises Ngāti Maru, Ngāti Paoa, Ngāti Tamaterā, Ngāti Whanaunga andTe Patukirikiri.60 In the Courts below relief was sought in respect of both the properties transferred to Ngāti Paoaand those transferred to the Marutūāhu iwi. In its application for leave to appeal to theSupreme Court, however, Ngāti Whātua Ōrākei said that it has reached agreement with Ngāti Paoaand it no longer seeks any relief in respect of the transfer of the Ngāti Paoa Properties. Ngāti Paoaabided by the decision of the Court.removes them. They contended that judicial review in the circumstances wouldconstitute impermissible interference by the Court with proceedings in Parliament.These arguments were accepted in the High Court and in the Court of Appeal. Theyare the basis on which the Ngāti Whātua Ōrākei claim has been struck out.[71] The Ngāti Whātua Ōrākei claim was precipitated first by Crown proposals totransfer properties in Grafton and Dominion Road in central Auckland to Ngāti Paoaand, later, to transfer further central Auckland properties to the Marutūāhu iwi. ButNgāti Whātua Ōrākei's statement of claim makes it clear that its concern is alsobecause the Crown's stance sets a precedent for the transfer of further land in centralAuckland (including under statutory powers) to other iwi in the future in settlement ofhistorical Treaty claims, without reference to it and without its approval. That, it says,is in breach of tikanga and would constitute unjustifiable erosion of its mana whenua.The Crown is currently in negotiations with a number of iwi in relation to redress inthe central Auckland area, as it confirmed in the High Court.61 If the presentproceeding cannot be maintained, Ngāti Whātua Ōrākei will be deprived of a forumin which it can seek to have its rights authoritatively established.[72] The Crown's policy that it is unnecessary to resolve competing claims beforeusing Crown-owned land in Treaty settlements is one of general application. As aresult, Ngāi Te Rangi Settlement Trust and Ngāti Kuri Trust Board, representing iwifrom Tauranga and Northland respectively, sought and were granted leave to appear atthe appeal. The interveners say that their rights and interests in relation to land inwhich they have mana whenua is adversely affected by comparable Crown proposalsfor settlement of historical claims by other iwi and by the same "overlapping claims"policy by which the Crown considers it is unnecessary to resolve such claims beforedealing with land in settlements.[73] The Court has also received a memorandum from Te Whakakitenga o WaikatoIncorporated, a representative tribal authority for the hapū of Waikato-Tainui whichhave overlapping interests in the Auckland isthmus. Whakakitenga's application forjoinder in the High Court proceedings was deferred until after consideration of the61 Ngāti Whātua Ōrākei (HC) at [88].strike-out application and it did not seek intervener status in the Supreme Court. Itrecords its position that the Crown's approach to overlapping claims is wrong and saysit is challenging it in the Waitangi Tribunal and considering challenge in the HighCourt. It supports the position taken by Ngāti Whātua Ōrākei in the present appealthat the proceedings ought not have been struck out on the grounds advanced by therespondents. Whakakitenga makes the point that the Supreme Court determination inthe present appeal "has significant wider importance in terms of both the Treatyrelationship between the Crown and iwi and hapū and the constitutional relationshipbetween the Courts, the executive and the legislature in Aotearoa".[74] The Crown's general approach in recent years, explained in an affidavit by theMinister for Treaty of Waitangi Negotiations, has been to implement Treatysettlements by legislation. In general, agreement as to the terms of settlement isexpressed to be conditional on the passage of the implementing legislation. If thedecisions in the lower Courts and the Crown arguments in the appeal are correct, hapūand iwi will not be able to obtain access to courts for authoritative determination oftheir present rights and interests according to law when settlement proposals whichmay affect those interests are to be implemented by legislation. The supervisoryjurisdiction of the High Court will also be substantially excluded in relation to theCrown conduct of Treaty settlements and adoption of policies in relation to suchsettlements. The implications of the decisions of the High Court and Court of Appealtherefore affect the New Zealand legal order and its scope.The "overlapping claims" policy[75] Treaty settlements for historical grievances are resolved according to publishedpolicies and processes established by the Office of Treaty Settlements. These policiesand processes are not adopted or organised under legislative powers but they may giverise to legitimate expectations and may be challenged by judicial review including forunreasonableness or unfairness to those whose rights and interests recognised by laware affected.62[76] The overlapping claims policy is described in the Office of Treaty Settlement'spublications. It is an approach by which the Crown does not seek to resolve competingclaims before settling with the different claimant groups:63The Crown can only settle the claims of the group with which it is negotiating,not other groups with overlapping interests. These groups are able to negotiatetheir own settlements with the Crown. Nor is it intended that the Crown willresolve the question of which claimant group has the predominant interest ina general area. That is a matter that can only be resolved by those groupsthemselves.[77] The difficulty faced by those hapū and iwi who claim rights according totikanga or custom is that settlements by the Crown with other claimant groups may beinconsistent with their rights and interests according to tikanga. Rights and interestsaccording to tikanga may be legal rights recognised by the common law and, inaddition, establish questions of status which have consequences under contemporarylegislation.64 The overlapping claims policy means that such questions of status arenot required to be authoritatively resolved before Treaty settlements which affect themare entered into.[78] Where claims of right or legal interest are made in our constitutional order, itis the function of the courts to determine them. Occasion to make such determinationmay arise in a number of ways, including in claims for redress for infringement ofrights, in claims to restrain the exercise of public powers which impact upon rights, orunder the jurisdiction of the High Court to declare what the law is. In the case ofdeclaratory relief the parties sought to be bound by the determination will be joined62 R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864 (CA); Council of CivilService Unions v Minister for the Civil Service [1985] AC 374 (HL). Although the procedureunder the Judicature Amendment Act 1972 (now the Judicial Review Procedure Act 2016) isavailable only in respect of the exercise of a statutory power, judicial review of other executiveaction is available at common law: Burt v Governor-General [1992] 3 NZLR 672 at 676 and 678per Cooke P for the Court. See also Gillick v West Norfolk and Wisbech Area Health Authority[1986] AC 112 (HL) and Mandalia v Secretary of State for the Home Department [2015] UKSC59, [2015] 1 WLR 4546 at [29]–[31] in respect of statements of policy.63 Office of Treaty Settlements Healing the past, building a future: A Guide to Treaty of WaitangiClaims and Negotiations with the Crown (June 2018) at 53.64 See for example Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94] per Elias CJand [150] per McGrath J for himself and Tipping and Blanchard JJ; and the Resource ManagementAct 1991 and Te Ture Whenua Maori Act 1993. Where appropriate, questions of tikanga may bereferred to the Māori Appellate Court: Te Ture Whenua Maori Act, s 61.and, because of the questions of status entailed, it may be appropriate for theAttorney-General to be joined to represent the wider public interest as well as becauseof Treaty of Waitangi implications.The Ngāti Whātua Ōrākei Treaty settlement and the Collective Redress Act[79] The background to the appeal includes Ngāti Whātua Ōrākei's own Treatysettlement and its history. The settlement, eventually enacted by legislation in 2012,provided for historical redress including for Treaty breaches arising out of thealienation of Ngāti Whātua Ōrākei land in the Auckland isthmus.[80] An initial Crown acquisition of 3,000 acres of land in central Auckland toestablish the town of Auckland was made in September 1840. This first acquisitionincluded what is now the central business area and port and Herne Bay, Ponsonby,Newmarket and Parnell. Subsequent alienations to the Crown followed in 1841, 1842,1847 and 1855. In the initial exchanges the Crown, exercising the right of pre-emptionobtained under the Treaty of Waitangi, treated directly with Ngāti Whātua Ōrākei asowners of the land. These exchanges included a Crown purchase of 13,000 acres tothe west of the original 1840 lands in 1841. Further extensive alienations to privatepurchasers followed waiver of the Crown's right of pre-emption by Governor Fitzroyin the years 1844–1845, without protection of Ngāti Whātua Ōrākei's interests andwithout expected reservation of one tenth of the land for the benefit of Ngāti WhātuaŌrākei. Overall 47,000 acres were alienated during the waiver of pre-emption acrossthe central isthmus to Onehunga (including Maungakiekie), parts of West Auckland,the upper Waitematā Harbour and northern Manukau Harbour areas. By 1845 morethan 78,000 acres had been alienated. Further transactions with the Crown between1847 and 1855 led to the alienation of Remuera, Mount Smart and West Auckland,estimated as entailing more than 50,000 acres. The land comprised in the alienationsdescribed is land in respect of which Ngāti Whātua Ōrākei asserts mana whenua. Itincludes the properties the Crown has agreed to transfer to Ngāti Paoa and theMarutūāhu iwi.[81] The circumstances of the historical alienations were eventually the subject ofCrown apology in the Ngāti Whātua Ōrākei Claims Settlement Act 2012. The Actacknowledges that the dealings "left Ngāti Whātua Ōrākei virtually landless by 1855",with "devastating consequences for the social, economic and spiritual well-being ofNgāti Whātua Ōrākei that continue to be felt today".65 In the Act the Crownacknowledges its Treaty breaches in the alienations. It acknowledges that the landalienation "has diminished the ability of Ngāti Whātua Ōrākei to exercise manawhenua".66[82] A 2006 "agreement in principle" between the Crown and Ngāti Whātua Ōrākeiwould have given Ngāti Whātua Ōrākei redress for its historical grievances andparticular rights in respect of three maunga: Maungakiekie (One Tree Hill),Maungawhau (Mount Eden) and Puketāpapa (Mount Roskill). It also provided toNgāti Whātua Ōrākei a right of first refusal for 100 years over all Crown-owned landwhich became surplus to Crown needs in an area encompassing much of centralAuckland, extending from the Waitematā Harbour in the north to the ManukauHarbour in the south, to Avondale in the west and embracing parts of Onehunga,Ellerslie and Remuera to the east. This right of first refusal was treated in theagreement as the provision of future "commercial" opportunity, distinct from theCrown apology and cultural and other redress provided in the settlement of historicalgrievances. It was designed to allow Ngāti Whātua Ōrākei to expand over time itscommercial interests in the Auckland area. The area of first refusal land included butextended beyond the boundaries of the land acquired by the Crown in 1840. Itincluded much of what is now the central Auckland suburbs, but was not nearly asextensive as the land purchased from Ngāti Whātua Ōrākei at 1855. It did not forexample cover West Auckland beyond Avondale and Blockhouse Bay or any of theNorth Shore.[83] The agreement in principle was the subject of Waitangi Tribunal claim by otheriwi with interests in the Auckland region. A particular focus of these claims were theexclusive interests accorded to Ngāti Whātua Ōrākei in the three maunga and in theright of first refusal on disposal of surplus Crown lands within the area identified.65 Section 7(7).66 Section 6(13).[84] The Waitangi Tribunal report67 was critical of the process adopted in respect ofthe 2006 agreement in principle. The Tribunal considered that the Auckland isthmusprovided a particular challenge in the settlement of historical treaty claims. That wasnot only because of the overlapping interests of different iwi, but also because the landhad not been the subject of Native Land Court investigation in the 19th century whichmight have resolved or reconciled the competing claims.68 The Waitangi Tribunalnevertheless was of the view that the need to progress settlements for iwi with interestsin the Auckland region should not be at the expense of understanding the overlappinginterests.69[85] Following a facilitated negotiation involving iwi with interests in the Aucklandisthmus, a Collective Redress Deed was entered into in September 2012 to resolve thecompeting claims of the different iwi groups in relation to the maunga and motu of theisthmus and the commercial redress provided by the Crown through the opportunityto exercise rights of first refusal over the disposal of surplus Crown land. TheCollective Redress Deed is a more formal expression of a Framework Agreemententered into by iwi and the Crown in February 2010. The Collective Redress Deedwas conditional on the enactment of implementing legislation. The arrangement waslater enacted as Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014.It provided for legal interests in and shared management of 14 maunga in the Aucklandisthmus. Ngāti Whātua Ōrākei70 participates in the collective along with theHauraki-affiliated Marutūāhu rōpū (Ngāti Maru, Ngāti Paoa, Ngāti Tamaterā,Ngāti Whanaunga and Te Patukirikiri) and those in the Tainui-affiliated WaiohuaTāmaki rōpū (Te Kawerau ā Maki, Ngāti Te Ata, Ngāti Tamaoho, Te Ākitai Waiohuaand Ngāi Tai ki Tāmaki).[86] The Collective Redress Deed and the legislation which enacted it also set up ashared system of rights of first refusal of Crown-owned land under collective controlexercised by the Whenua Haumi Roroa o Tāmaki Makaurau Limited Partnership,67 Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007).68 At 13–14.69 At 103–108.70 Ngāti Whātua o Kaipara are specifically included, alongside hapū of Ngāti Whātua "whosemembers are beneficiaries of Te Rūnanga o Ngāti Whātua, including Te Taoū not descended fromTuperiri"; see s 9.comprised of the three rōpū recognised under the Act. Under the legislation, thePartnership has rights to first refusal when the Crown or Crown entities wish to disposeof surplus land.71 There are some exceptions, including for land held by tertiaryinstitutions.72 And, under s 120 of the Collective Redress Act (which is discussedfurther below), the Crown can give notice of withdrawal of land from the area of firstrefusal if the land is required in the settlement of historical Treaty grievances.[87] The area in which rights of first refusal are provided under the legislation ismuch more extensive than the area in which the 2006 agreement had given NgātiWhātua Ōrākei exclusive rights of first refusal for commercial purposes. TheCollective Redress area of first refusal extends from just south of Muriwai and Okurain the north to a line just to the north of the Waikato raupatu confiscations from PortWaikato to Miranda in the south. The extension of the boundaries of the area in whichthe rights of refusal operate covers the wider area in which all three rōpū have interests,with the Tainui-affiliated iwi having particular connections in the south and west, andthe Hauraki-affiliated iwi having particular connections in the east and the motu,although there is overlap in a number of respects.[88] The Partnership may exercise the right of first refusal either on its own behalfor on behalf of one of the three rōpū entities73 (which if acting jointly may set up aspecial purpose vehicle to acquire the land). It seems that among themselves, the threerōpū have the opportunity of first refusal on a rotating and default basis.74[89] In summary, the collective rights enacted through the Collective Redress Actwere the mechanism by which the overlapping interests in Tāmaki Makaurau inrelation to the maunga and motu and the commercial opportunities on Crown disposalof surplus land were adjusted. It set up a system of shared authority in relation to themaunga which had been a principal grievance in the Waitangi Tribunal claim inrelation to the 2006 settlement with Ngāti Whātua Ōrākei. And it set up the system offirst refusal by which surplus Crown lands in the isthmus could be released for71 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, s 121.72 Land occupied by tertiary institutions is excluded from the definition of RFR land: s 118(1)(a)(i).73 Section 126.74 The matter is covered in an unsigned partnership agreement, the status of which is not clear on thematerial before the court.purchase to allow the three iwi groupings to maintain and expand their commercialinterests in the isthmus.[90] With the maunga and the commercial redress by way of rights of first refusaldealt with under the Collective Redress Deed by collective solution, the Ngāti WhātuaŌrākei settlement of its historical Treaty grievances was able to be concluded. TheNgāti Whātua Ōrākei settlement contained in the 2006 agreement in principle wasamended in February 2010. A Deed of Settlement was entered into in November 2011.The new agreement set out in the Deed was conditional on the enactment ofimplementing legislation. It was eventually enacted as the Ngāti Whātua ŌrākeiClaims Settlement Act in November 2012.[91] The other iwi with interests in the isthmus were also at the same time left tonegotiate separate settlements of their historical grievances with the Crown whileparticipating in the collective arrangements for the maunga and the rights of firstrefusal in relation to surplus Crown lands in the isthmus. It may be noted that thereservation of authority to the Crown to withdraw land required for settlement ofhistorical grievances from the first refusal regime was a necessary measure given thebreadth of the area covered if the other iwi were to obtain land redress as part of theirsettlement of historical grievances in areas in which they assert mana whenua andother interests according to tikanga. The present litigation arises out of the settlementnegotiations with Ngāti Paoa when in 2015 Ngāti Whātua Ōrākei became aware thatredress for Ngāti Paoa's historical grievances would in part be met by the transfer ofland to it in central Auckland.[92] Although the matter is not able to be resolved at strike-out stage, there is nonecessary inconsistency between Ngāti Whātua Ōrākei's claim and the CollectiveRedress Act, as appears to have been suggested in the High Court decision.75 TheCollective Redress Act deals with opportunities for commercial investment, notspecific redress for historical grievances involving harm to customary interestsprotected by the Treaty of Waitangi. The ability to withdraw land required forsettlement of historical grievances in the legislation is explicable by reference to the75 Ngāti Whātua Ōrākei (HC) at [135]–[138].claims for redress of such grievances by the other iwi which remained to be addressedby the Crown when the Collective Redress Act was enacted. Without expressreservation from the scope of the rights of first refusal in that Act, provision of landredress from land held by the Crown where appropriate to meet the claims would havebeen precluded. There is no necessary implication from the legislation that suchhistorical redress might be appropriate from land within the Ngāti Whātua Ōrākeialienations in which Ngāti Whātua Ōrākei claims mana whenua. The area of firstrefusal under the Collective Redress Act extends beyond the area in which priority ofinterest according to tikanga is claimed by Ngāti Whātua Ōrākei. It may be assumedto include land in which other iwi in the collective have particular claims according totikanga and which it is appropriate to use as redress for their historical grievances.The claim[93] Section 120(1) of the Collective Redress Act provides for land to be removedfrom the pool required to be offered to the collective, upon notice to the collective, ifit is "required for another Treaty settlement".76 Land required for another Treatysettlement is defined in s 120(3) as "land that is to be vested or transferred as part ofthe settling of historical claims under the Treaty of Waitangi, being the historicalclaims relating to acts or omissions of the Crown before 21 September 1992".[94] The present case does not entail any complaint about the operation of theCollective Redress Act in its own terms. Ngāti Whātua Ōrākei does not suggest thatthe system it has agreed to with the other rōpū within the collective is in breach oftikanga. That system of commercial opportunity, in which it participates, was adoptedwith its agreement and is consistent with its exercise of mana whenua.[95] Ngāti Whātua Ōrākei takes the view that the matter is however quite differentif the Crown, without Ngāti Whātua Ōrākei's agreement, provides land in which NgātiWhātua Ōrākei claims mana whenua in settlement of historical grievances another iwihas with the Crown. That it treats as being inconsistent with its tikanga and with itslegal rights and an unreasonable erosion of its mana whenua. It seeks declarations in76 Section 118(2)(d) accordingly provides that land ceases to be RFR land if notice is given unders 120 that it is required for another Treaty settlement.the proceedings as to its legal rights and the lawfulness of the Crown's actions andpolicies. It says it is not reasonable for the Crown to treat its claim to mana whenuaas irrelevant. The Minister in confirming the provision of properties in centralAuckland to Ngāti Paoa and to the Marutūāhu iwi said that he had "determined" thatthese iwi had "interests in the central Tāmaki region" which made the redressappropriate. Ngāti Whātua Ōrākei seeks access to the Court to challenge thatdetermination by obtaining a declaration of what it says are its legal rights accordingto tikanga which are inconsistent with the imposition on it of the Crown's redress.[96] At the time the claim was initiated by Ngāti Whātua Ōrākei, the Minister forTreaty of Waitangi Negotiations proposed to withdraw the properties intended to betransferred to Ngāti Paoa from the right of first refusal available to the collective, itseems using the powers under s 120 of the Collective Redress Act. Several monthsafter the claim was filed, the Minister advised that the transfer would be effected bylegislation vesting the land in Ngāti Paoa. The settlement later proposed forMarutūāhu Rōpū Limited (which was joined as a third defendant to the litigation) wasalso conditional upon legislation.[97] If the Minister had given notice under s 120 to remove land from the poolrequired to be offered to the collective, his decision to do so could have been directlychallenged on grounds such as unreasonableness, inconsistency with legal obligations,improper purpose, failure to consider a relevant matter, unfairness or breach oflegitimate expectations. In such a claim, the Crown's settlement with Ngāti WhātuaŌrākei and its acknowledgements and the purpose and terms of the Collective Redresssettlement would be important context. So too would be the basis and correctness ofthe Minister's determination that the other iwi had interests in central Auckland whichmade the provision of land in settlements of their historical grievances appropriate.Important context would also have been Ngāti Whātua Ōrākei's claim to mana whenuain central Auckland and the implications of such status as a matter of tikanga.[98] These are however also questions of current right and status which haveimplications for Ngāti Whātua Ōrākei whether or not the particular properties arevested by legislation. The issue on appeal is whether the declaratory relief NgātiWhātua Ōrākei seeks in relation to its interests and rights and the Crown obligationsin respect of them under the Treaty and in law is not available because the Crownproposes legislation to vest the properties directly in Ngāti Paoa and the Marutūāhurōpū.The respondents' strike-out application[99] The fact that the settlements with Ngāti Paoa Iwi Trust and Marutūāhu RōpūLimited were to be implemented by legislation was the basis on which the respondentsapplied to strike out Ngāti Whātua Ōrākei's claim. The grounds on which ordersstriking out the claim were made were that the claim could not succeed because itdisclosed no reasonable cause of action and was frivolous and vexatious incircumstances where the Crown's "policy decisions" that the properties would betransferred were to be given effect by legislation and would not be implemented"unless and until that transfer is authorised by Parliament". The application forstrike-out claimed accordingly that the policy decisions to make the land available inthe proposed Treaty settlements with Ngāti Paoa and Marutūāhu Rōpū only bylegislation meant that the decisions "are not amenable to judicial review".[100] The claim by Ngāti Whātua Ōrākei was struck out by Davison J in the HighCourt. The Judge expressed the view that Ngāti Whātua Ōrākei's claim to manawhenua and to a resultant priority of interest according to tikanga could not bereconciled with the settlements it had entered into with the Crown which did notrecognise any exclusive interest in the land in central Auckland. He considered thatthe Collective Redress arrangements entered into in respect of the Auckland maungaand rights of first refusal on Crown disposal of surplus lands indicatedacknowledgement of shared interests with Ngāti Paoa and the Marutūāhu iwi.77[101] In any event, the Judge considered that "irrespective of any interests of NgātiWhātua that may have been affected or infringed", the fact that the settlements wereto be implemented only through legislation meant that the decisions were "notjusticiable". They depended on policy determinations turning on "political and fiscalfactors". There was "no legal yardstick" against which they could be assessed when"the decisions made by the Minister involved the subjective consideration of political77 Ngāti Whātua Ōrākei (HC) at [135]–[138].and fiscal factors, and were in any case preparatory to legislation, without which theywould be of no effect".78 The Judge took the view that even if Ngāti Whātua Ōrākeihad been right in the contention that it was seeking to clarify and determine its positionfor the future and not "to interfere with the legislative process", the Court would not"embark on a process 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". TheCourt in those circumstances "would not grant the declaratory relief sought".79[102] On appeal, the Court of Appeal was critical of aspects of the High Courtdecision which turned on assessments of pleaded fact which could not be properlyconsidered on a strike-out application and which should have been assumed on thebasis of the pleadings for the purposes of strike-out.80 Despite that view, however, theCourt of Appeal considered that the High Court judgment had not turned on the factualdeterminations. Rather the conclusion the claim could not succeed "rested on thenon-justiciable nature of the disputed decisions and the fact that any adverse effect onNgāti Whātua Ōrākei would arise, not as a consequence of the decisions, but as a resultof the enactment of legislation that was necessary to transfer the properties".81[103] On this point, dispositive of the appeal, the Court of Appeal agreed withDavison J. It considered the decisions had been made "in the development oflegislative proposals".82 No "justiciable rights" were affected by the decisions.83 Onlythe proposed legislation would affect them. The Court considered that the decisionswere "squarely within" the principle applied in Te Runanga o Wharekauri Rekohu Incv Attorney-General that "Ministers of the Crown must remain free to determine,according to their view of the public interest, what they will invite Parliament toconsider".84 It was of the view that Te Runanga o Wharekauri Rekohu and thesubsequent decisions of the Court of Appeal in Milroy v Attorney-General85 and78 At [142].79 At [143].80 Ngāti Whātua Ōrākei (CA) at [75]–[83].81 At [84].82 At [85].83 At [95].84 At [95], referring to Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR301 (CA) at 308 per Cooke P delivering the judgment of the Court.85 Milroy v Attorney-General [2005] NZAR 562 (CA).New Zealand Maori Council v Attorney-General86 presented "a fatal obstacle to NgātiWhātua Ōrākei's claim". It was "wrong in principle for a court to declare unlawful anoutcome intended to be secured only if authorised by Parliament".87 The Courtconsidered that the declarations sought, added together if not expressly put, wouldhave that effect.88 Such declaration of rights, even if "ostensibly" looking to the future,could not be made "without breaching the established principle of non-interference bythe courts in parliamentary proceedings".89 There was "no proposal that will affectNgāti Whātua Ōrākei's rights other than a legislative one":90This is territory that the courts will not enter in accordance with the principleof non-interference.Interference with proceedings in Parliament?[104] Settlements with the Crown of Treaty grievances are often concluded by theenactment of legislation, to still all actual and potential controversies which are thesubject of the settlement. Questions have arisen in recent cases as to the availabilityof court determinations of existing legal rights when a Treaty settlement is intended tobe enacted.91 It has been suggested that it is inappropriate to determine existing rightsor to declare what the existing law is where the executive has indicated it intends toask Parliament to change the law because to do so would encroach upon the legislativefunction. This creep in restriction of established constitutional obligations of courtsnot to interfere in proceedings in Parliament is put on the basis that it observesappropriate "comity" between the courts and the legislature. I consider it to be anunwarranted extension of proper principle. It is necessary to explain why.[105] Although the Treaty settlements of recent years have provided a new context,it is well-established that the courts cannot interfere in proceedings in Parliament. Thelimitation is the subject of the statutory privilege contained in art 9 of the Bill of Rights1688. It is also based on a wider (and pre-existing) common law protection against86 New Zealand Maori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318.87 At [100].88 At [101].89 At [102].90 At [105].91 See Milroy v Attorney-General; and New Zealand Maori Council v Attorney-General[2007] NZCA 269, [2008] 1 NZLR 318.interference with matters within the exclusive jurisdiction of Parliament.92Te Runanga o Wharekauri Rekohu acknowledges an "established principle ofnon-interference by the Courts in parliamentary proceedings" (whether as a matter ofjurisdiction or practice was not resolved).93 It affirms the effect as being to preventthe courts prohibiting a Minister from introducing a Bill into Parliament.[106] It is for the courts to determine what matters are within the statutory andcommon law privileges, as was established by the great case of Stockdale v Hansard.94Parliament may however extend the privilege by legislation, as it has done inNew Zealand recently in the Parliamentary Privilege Act 2014. The scope of theexclusive jurisdiction of Parliament has also changed with the practices of Parliamentas it has over time relinquished jurisdiction to the ordinary courts (for example inrelation to contractual disputes involving officers of Parliament and in relation tocrimes committed within Parliament).[107] The purpose of art 9 of the Bill of Rights was described byLord Browne-Wilkinson in Pepper v Hart:95It ensures the ability of democratically elected Members of Parliament todiscuss what they will (freedom of debate) and to say what they will (freedomof speech) .In my judgment, the plain meaning of article 9, viewed against the historicalbackground in which it was enacted, was to ensure that Members ofParliament were not subjected to any penalty, civil or criminal for what theysaid and were able, contrary to the previous assertions of the Stuart monarchy,to discuss what they, as opposed to the monarch, chose to have discussed.[108] Beyond art 9, which is principally concerned with freedom of speech anddebate in Parliament itself, the wider principle of non-interference is not a matter ofetiquette or deference (as reference to "comity"96 may misleadingly suggest), but issimilarly concerned with the function of Parliament. It reaches matters which are so92 R v Chaytor [2010] UKSC 52, [2011] 1 AC 684 at [13] and [63]–[78] per Lord Phillips.93 Te Runanga o Wharekauri Rekohu at 307.94 Stockdale v Hansard (1839) 9 A & E 1, 112 ER 1112 (QB).95 Pepper v Hart [1993] AC 593 (HL) at 638.96 Neither the Privy Council in Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC) nor theCourt of Appeal in Te Runanga o Wharekauri Rekohu refer to the principle of non-interference asbased on "comity". Compare Boscawen v Attorney-General [2009] NZCA 12,[2009] 2 NZLR 229; Te Ohu Kai Moana Trustee Ltd v Attorney-General [2016] NZHC 1798,[2016] NZAR 1169; and, in a different context, s 4(1)(b) of the Parliamentary Privilege Act 2014.connected to Parliament's function that they too must be similarly privileged, asexplained in R v Chaytor. As Lord Phillips suggested, in considering the scope of theprinciple of non-interference it is necessary to consider whether, without similarprivilege, the core of essential business of Parliament will be adversely affected.97[109] In similar vein McGechan J in Westco Lagan Ltd v Attorney-General, inrejecting the submission that the parliamentary privilege is limited to the deliberativefunction conducted within the "four walls" of Parliament, included all "ancillarymatters" such as the introduction of Bills and the submission of Bills for Royal Assent(at least where there was no "manner and form" restriction on an enactment whichmight justify intervention before Royal assent).98 In Canada too the wider principleof non-interference with the functions of Parliament has been held to apply to anattempt to prevent Parliament's consideration of legislation which was said to breachduties of consultation.99[110] We are not in the present case concerned with procedural conditions forvalidity such as might be found in the entrenched provisions of the Electoral Act 1993or with any other limits on the competence of Parliament.100 In relation to suchchallenges Cooke P in Te Runanga o Wharekauri Rekohu said that the time to mountthem could only be after enactment because of the principle of non-interference withthe business of Parliament.101 It was, he thought, impossible to suppose that a Ministermight be "judicially prevented from presenting to a representative assembly a measure97 R v Chaytor at [47].98 Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC) at [79] and [97]–[100].99 Canada (Governor General in Council) v Mikisew Cree First Nation 2016 FCC 311, (2016) 405DLR (4th) 721, a case which has since been appealed to the Supreme Court of Canada. The caseturns principally on the statutory conditions on which judicial review was available.100 Such as those considered in Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong[1970] AC 1136 (PC).101 A position taken in Canada in Re Resolution to Amend the Constitution [1981] 1 SCR 753 at 785per Laskin CJ, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ. In Westco Lagan,McGechan J was prepared to allow that in the case of "manner and form" invalidity it might bethat the courts would intervene to prevent non-complying legislation receiving the Royal Assent,on the basis that in such cases it could be "in the public interest to move earlier", rather thanwaiting for enactment, pointing to discussion to this effect in the Australian case-law: at [93].for consideration" or that the courts would "compel a Minister to present a measure toa representative assembly for consideration":102Surely in a democracy it would be quite wrong and almost inconceivable forthe Courts to attempt to dictate, by declaration or a willingness to awarddamages or any other form of relief, what should be placed before Parliament. [P]ublic policy requires that the representative chamber of Parliamentshould be free to determine what it will or will not allow to be put before it.Correspondingly Ministers of the Crown must remain free to determine,according to their view of the public interest, what they will invite the Houseto consider.[111] As this passage suggests, the wider principle, like the narrower freedom ofdebate in art 9, exists to ensure that Parliament is free to consider what it will andMinisters are free to put before it suggestions for it to consider. It is not a wider notionof "comity" between the courts and Parliament (although there is an equivalentobligation on Parliament not to interfere in court proceedings). In Westco LaganMcGechan J, while referring to "comity", made it clear that in doing so he meant thesame principle of non-interference with parliamentary consideration (of which theart 9 concern with what happens within the "four walls" of Parliament is part only),rather than a wider notion of institutional deference:[98] Its essence is that the Courts should not interfere so as to frustrate thepowers of the House to enact legislation. Whether it is a matter of jurisdictionor practice, and I prefer the latter, there is a constitutional boundary to observe.Sometimes this principle is called "comity" as it reflects a reciprocal principlethat Parliament should not intervene in the conduct of the Courts in relation toparticular cases. The boundaries involved in non-interference in the conductof Parliament are not determined on any fixed basis or by some bright line.The decision is a matter of judgment and common-sense. Boundaries mayevolve and modify as times and circumstances dictate, as long as theunderlying principle is kept in mind.[112] These authorities do not suggest any wider inhibition of court function simplybecause if legislation is enacted it may affect the issue before the court. If the reliefsought in the proceeding is discretionary (as declaratory relief is) the fact that the courtdetermination is likely to be overtaken or that the subject matter of the litigation isunder active consideration in Parliament may well be relevant in considering whetherthe relief sought should be granted, although a decision to decline relief in exercise ofdiscretion will often not be a matter capable of assessment on preliminary inquiry.102 Te Runanga o Wharekauri Rekohu at 308.I discuss the declaratory relief sought under the final heading of these reasons. Forpresent purposes however it is enough to reject the suggestion that a Bill beforeParliament constitutes a bar to the jurisdiction of the court.[113] It seems to me that some of the recent restatements of the principles ofnon-interference are unacceptably broad and are not supported by the principalauthorities. I am unable to agree with suggestions in the High Court in Ngati Te Atathat "[i]t is well settled that matters contemporaneously before Parliament arenon-justiciable".103 It is not entirely clear that the statement was intended to suggestthat the courts cannot consider disputes touching on the subject-matter of a Bill. Butif so, Te Runanga o Wharekauri Rekohu, which is cited in Ngati Te Ata, does notsupport anything as loose. Milroy v Attorney-General, relied on by the Crown, was acase in which it was conceded that no rights were in issue.104 In any event, it may bedoubted that the more developed Treaty settlement processes and the post-settlementrelationships now in place can properly be regarded as policy development which isnot amenable to the supervisory jurisdiction of the court. I would regard cases whichsuggest as much with some scepticism in 2018.[114] I consider that the Court of Appeal in the present case mischaracterised theclaim when it said that its effect was to declare the authorisation to be obtained throughParliament as "unlawful" and in breach of Ngāti Whātua Ōrākei's rights "if made nowin the course of a process already under way and with legislation intended to beintroduced".105 Parliament speaks to the courts only through enacted legislation.Whether the enactment proposed will proceed and, if so, the form it will take isuncertain because it is a matter for Parliament. Just as the executive cannot bind itselfby contract to introduce and pass legislation,106 it cannot properly give any assuranceto the court that the legislation it proposes will be passed.107103 Ngati Te Ata v Minister For Treaty of Waitangi Negotiations [2017] NZHC 2058 at [52], citingTe Runanga o Wharekauri Rekohu at 307–308.104 Milroy v Attorney-General at [12].105 Ngāti Whātua Ōrākei (CA) at [100] and [102].106 Rothmans of Pall Mall (NZ) Ltd v Attorney-General [1991] 2 NZLR 323 (HC) at 328–329 perRobertson J.107 A point made by McGechan J in Westco Lagan.[115] Provided that the court does not seek to preclude parliamentary consideration,I cannot see that any determination of present right of itself constitutes an interferencewith proceedings in Parliament. Indeed, in some cases it may provide information thatParliament may want to consider. That is not, in my view, interference withproceedings in Parliament. Parliament remains free to legislate to modify or abrogateany existing rights. It is free to legislate without inquiring into the existence of rightsor waiting for court determination of them. The courts will do nothing to preventMinisters from introducing legislation with that effect for Parliament's consideration.The freedom of debate and the freedom of speech in Parliament is not affected.[116] The constitutional functions of the courts are not enlarged by this approach.Rights in issue in the courts may always be changed by legislation. The prospect doesnot deflect the courts from carrying out their present responsibilities. Nor are theydeflected by statements of government policy that legislative change will be sought.Such statements cannot mark out no-go areas for the courts.[117] That is illustrated in New Zealand by Fitzgerald v Muldoon.108 There, theplaintiff sought injunctions and mandamus against the Prime Minister arising out ofhis purported suspension of payments to the New Zealand Superannuation Fund. Anapplication for priority fixture was made so that the matter could be heard before thedate on which Parliament had been summonsed.109 It was opposed on the basis that,since it was clear that the matter would be dealt with by retrospective legislation, "theCourt's time will be involved with what may be a dead issue".110 The Crown arguedin support of its opposing application for adjournment until after Parliament was insession that "the proper course was to allow the issue to be dealt with in the forum ofParliament". It suggested that the purpose of the plaintiff was to "beat Parliament tothe draw" by taking "what is essentially a political action".111[118] Beattie J rejected the Crown's argument and granted the priority fixture. Hepointed out that the remedy sought by the plaintiff was "to support a statute still inforce". He considered that the plaintiff was entitled to have his case heard rather than108 Fitzgerald v Muldoon [1976] 2 NZLR 615 (SC).109 Fitzgerald v Muldoon SC Wellington A118/76, 19 May 1976 per Beattie J.110 At 3.111 At 3.to face its being "stifled at birth".112 Beattie J accepted that the trial Judge might wantto know Parliament's intentions before granting relief that would be discretionary, buthe thought it was important that the doors of the court should be open to its citizens.Government interests in orderly planning had to be "balanced against the rights of anindividual to have his case heard".113[119] I do not think the circumstance that the plaintiff in Fitzgerald v Muldoon soughtto uphold statutory obligations is reason not to apply the same approach. UntilParliament changes the law, the courts must be open to citizens who seek to have theirexisting legal interests and rights determined. The rights recognised in s 27 of theNew Zealand Bill of Rights Act 1990 to natural justice and to bring proceedingsagainst the Crown on equal terms would not otherwise be fulfilled. Parliamentaryfreedom of debate and in its proceedings is unaffected by the judicial responsibility tohear and determine rights and interests protected by law.[120] In Te Runanga o Wharekauri Rekohu the Courts had been asked to prevent theMinister introducing legislation. The conclusion refusing relief was thereforeinevitable on the reasoning of the Court. Similarly, in Westco Lagan the proceedingsought an injunction to prevent a Bill being presented to the Governor-General forassent. In Comalco Power (New Zealand) Ltd v Attorney-General114 the claim thatthe introduction of legislation was anticipatory breach of contract may be seen as anattempt, within the principle discussed by Cooke P in Te Runanga o WharekauriRekohu, "to dictate, by declaration or a willingness to award damages or any otherform of relief, what should be placed before Parliament".115 The Courts in these caseswere not concerned with declarations of existing legal right without coercive effect asto what could be placed before Parliament. The reference in Te Runanga o WharekauriRekohu to declaration or damages or other relief is a reference to dictating what canbe placed before Parliament. The case does not suggest that determination of presentlegal entitlement constitutes impermissible interference with proceedings inParliament.112 At 4.113 At 5.114 Comalco Power (New Zealand) Ltd v Attorney-General [2003] NZAR 1 (HC).115 At 308.[121] The Court of Appeal in the present case reasoned that, since Ngāti WhātuaŌrākei's rights would not be affected other than by legislation, the proceeding wasinevitably an interference with the proceedings in Parliament. That is not reasoningI can accept. Parliament remains free to act. But Ngāti Whātua Ōrākei should equallynot be deprived of the opportunity to have its case heard. Even if the proposedlegislation is enacted, it is not clear to me that there is no continuing live issueconcerning Ngāti Whātua Ōrākei's status in relation to central Auckland, whatever theoutcome of the settlements now being implemented with other iwi. These are mattersfor consideration at a substantive hearing.The declaratory relief sought[122] The relief claimed by Ngāti Whātua Ōrākei in the proceeding includesdeclarations as to the status of Ngāti Whātua Ōrākei in relation to land in centralAuckland and Crown obligations arising from that status.116 The declarations soughtin the second amended statement of claim are set out in full at [29] of the reasons givenby Ellen France J. At the hearing counsel submitted further modifications. Inaccordance with the principles applicable in considering strike-out applications,further amendment cannot be ruled out.117 Nor is it possible to be confident at thispreliminary stage that after full hearing such relief will be inappropriate. Claims ofright arising out of tikanga and Crown Treaty obligations raise novel and perhapsdeveloping law which prompt caution.118[123] In the present case the questions of status in issue remain to be developed bothbecause the Crown's own overlapping claims policy has made it unnecessary to do so116 As Pelletier JA pointed out in his concurring opinion in Mikisew Cree First Nation at [73], citingWard v Samson Cree Nation No 444 (1999) 247 NR 254 (FCA) at [35]–[36], "[d]eclaration andjudicial review are not coterminous" and applications for declaration are not limited tocircumstances where judicial review is available. In New Zealand, s 2 of the DeclaratoryJudgments Act 1908 makes clear the High Court retains the power to grant freestandingdeclarations. There does not need to be an existing dispute or lis: Mandic v Cornwall Park TrustBoard [2011] NZSC 135, [2012] 2 NZLR 194 at [9] per Elias CJ and [82] per Blanchard, Tipping,McGrath and William Young JJ.117 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [123]–[124] per Blanchard,Tipping and McGrath JJ; see also Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (HC) at323–324 per Tipping J; and A C Beck and others McGechan on Procedure (looseleaf ed, ThomsonReuters) at [HR15.1.08].118 Couch v Attorney-General at [33] per Elias CJ and Anderson J; and North Shore CityCouncil v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [146] per Blanchard,McGrath and William Young JJ.for its purposes and because the peremptory challenge to the claim based on theprinciple of non-interference in proceedings in Parliament did not require it in thelower Courts.[124] The historical and tikanga claims and the impact on them of the settlementlegislation is not straightforward, as the justified doubts expressed by the Court ofAppeal about the inferences drawn by the High Court illustrate. We heard almost noargument about the inferences properly to be drawn from the Ngāti Whātua ŌrākeiClaims Settlement Act as to the Crown's on-going obligations in relation to NgātiWhātua Ōrākei in relation to the acknowledged damage to its mana whenua, for whichthe Crown apologises. Nor did we hear any justification of the reasonableness of theCrown approach to the provision of the properties to Ngāti Paoa and the Marutūāhuiwi or the reasonableness and lawfulness of its published general policy onoverlapping claims. Such policy may well constitute practice amenable to judicialreview as indeed may be the case with the wider system of settlements conducted bythe Office of Treaty Settlements.119 If so, and if rights are affected by such policiesand systems, cases like Milroy v Attorney-General (where it was conceded that norights were affected) would be distinguishable. These arguments were not developedbecause the case has proceeded on the basis that the conduct of the Crown is irrelevantbecause the transfers of property will be implemented by legislation. For the reasonsgiven I do not accept that the prospect of legislative implementation is a talismaneffective against court determination of rights where the courts do not seek to preventparliamentary consideration.[125] The arguments which might justify some of the declarations sought and thecontext in which they arise have not been developed in argument in the courts beforewhom the case has come because of the narrow grounds on which strike-out of theclaim was made. The Courts below took the view that the claim itself was notjusticiable in circumstances where legislation was proposed. In those circumstancesit is I think inappropriate for this Court as a matter of first and last impression to strikeout any of the declarations sought. That would not preclude further application to theHigh Court if proper grounds are advanced.119 See above at n 62.[126] This is not, of course, to say anything about whether the discretion should beexercised to grant relief. A court can withhold discretionary relief when there arereasons to think that it is inappropriate.120 I do not think however that the courts shouldbe quick to see inappropriateness where there are claims of rights to be determined,especially if the parties will otherwise not be able to have them resolved. As Beattie Jsaid in Fitzgerald v Muldoon, the plaintiff is entitled to have access to the courts. Andin the particular case the questions of status and continuing Crown obligation are ofmore lasting and substantial importance than the plaintiff's direct interest inFitzgerald v Muldoon. Nor is it clear what consequences failure to resolve some ofthe claims of right might have for the appellants quite apart from what happens to theparticular properties in issue. Courts should not be too sensitive about suggestionsthat there may be appearances of "jockeying and political advantage"121 if there arereal issues for determination which affect real people. It should not be assumed thatdetermination of the legal interests claimed do not matter. More importantly, mattersgoing to the exercise of discretion in relief are not appropriately peremptorily resolvedon truncated hearing on strike-out application except in clear cases.[127] I do not consider this is a clear case, even in respect of declarations (e) and (f)which other members of the Court would strike out (although it may be thatamendment to remove the references to Ngāti Paoa is now appropriate122 and it maybe that a further application on proper grounds fully argued could yet see those claimsstruck out). Whether the Crown's processes have been in breach of obligations in lawto observe tikanga, the Treaty of Waitangi, and consistently with the rights affirmedby the United Nations Declaration on the Rights of Indigenous Peoples is a questionlikely to recur in the Crown's post-settlement dealings in respect of lands in whichNgāti Whātua Ōrākei claims mana whenua, whether under s 120 of the CollectiveRedress Act or in its inevitable continued dealings with Ngāti Whātua Ōrākei and otheriwi. There remains a continuing Treaty relationship which means Ngāti WhātuaŌrākei has a continuing interest in how the Crown conducts itself. The approach takenby the Crown sets a pattern I would not at this stage of the proceedings prevent NgātiWhātua Ōrākei from challenging.120 See Rediffusion (Hong Kong) Ltd at 1155 per Lord Diplock.121 Rothmans of Pall Mall (NZ) Ltd v Attorney-General at 330.122 See above at n 60.Result[128] I would allow the appeal and reinstate the claim.Solicitors:Chapman Tripp, Auckland for AppellantCrown Law Office, Wellington for First RespondentAtkins Holm Majurey, Auckland for Third RespondentChapman Tripp, Wellington for Interveners