NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY-GENERAL & ORS [2017] NZCA 554

NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY-GENERAL & ORS [2017] NZCA 554 [4 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA122/2017[2017] NZCA 554BETWEEN NGĀTI WHĀTUA ŌRĀKEI TRUSTAppellantAND ATTORNEY-GENERALFirst RespondentNGĀTI PAOA IWI TRUSTSecond RespondentMARUTŪĀHU RŌPŪ LIMITEDPARTNERSHIPThird RespondentHearing: 7 and 8 June 2017Court: Kós P, Cooper and Asher JJCounsel: J E Hodder QC and JWJ Graham for AppellantD A Ward and C C McKay for First RespondentD J Goddard QC and L Theron for Second RespondentP F Majurey for Third RespondentJudgment: 4 December 2017 at 10.30 amJUDGMENT OF THE COURTA The third respondent's application to adduce further evidence is granted.B The appeal is dismissed.C The appellant must pay each of the respondents costs for a standardappeal on a band A basis and usual disbursements. We certify for twocounsel.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Table of ContentsPara NoIntroduction [1]Narrative [5]The challenged decisions [36]The revised Ngāti Paoa decision [37]The Marutūāhu decision [43]The Minister's approach [49]The claims in the High Court [55]The appeal [65]Ngāti Whātua Ōrākei's submissions [65]The respondents' submissions [70]Analysis [75]Approach [75]Mana whenua [77]Justiciability and comity [85]Result [108]Introduction[1] The Minister for Treaty of Waitangi Negotiations has proposed that land incentral Auckland be offered to Ngāti Paoa (represented in this proceeding by the NgātiPaoa Iwi Trust) and Marutūāhu (represented in this proceeding by the Marutūāhu Rōpūlimited partnership) in partial settlement of claims for historic breaches of the Treatyof Waitangi. The proposals are in the course of documentation. A deed of settlementwith Ngāti Paoa has been initialled and is in the process of ratification. A similarprocess is being followed with respect to Marutūāhu. The land will not be transferredunless legislation is passed that authorises that to occur.[2] The land is located in areas over which Ngāti Whātua Ōrākei claims to havemana whenua. The Ngāti Whātua Ōrākei Trust commenced a proceeding in theHigh Court contending the transfer of the properties would breach obligations owedto it by the Crown and that it would unjustifiably erode its mana whenua.1 It soughtextensive declaratory relief.1 We refer to Ngāti Whātua Ōrākei to embrace both the iwi and the Trust or other entities associatedwith it.[3] The respondents, defendants in the High Court, applied to strike out the claim.The application to strike out was advanced on two grounds: first, that the Crown hadmade policy decisions that the land should be offered as components of the settlementof Treaty claims, but does not intend to transfer the properties until the transfers areauthorised by legislation; and second, that the policy decisions are not amenable tojudicial review. It was said that in these circumstances the claim disclosed noreasonable cause of action, could not succeed and was frivolous or vexatious.[4] The High Court granted the strike out application.2 This is an appeal from thatjudgment. Although in the end we consider the case can be decided on the relativelynarrow ground that there will be no transfers unless they are authorised by legislationand it is inappropriate for the courts to make a declaration that intended legislationwould breach a claimant's rights, the arguments presented and the importance of theissues require us to give some detail about the context of the dispute.Narrative[5] In October 2002, the Crown recognised the statutory mandate of theNgāti Whātua o Ōrākei Māori Trust Board to negotiate the settlement of the historicaltreaty claims of Ngāti Whātua Ōrākei. After a period of negotiation, the Trust Boardand the Crown entered into an agreement in principle (the AIP) on 9 June 2006 for thesettlement of the historical claims. The AIP provided that following its signing, theparties would work together in good faith to develop, as soon as reasonablypracticable, a deed of settlement. The deed of settlement was to include the full detailsof the redress to settle the claims.[6] The AIP contained an acknowledgement that its terms were not binding andwere not intended to create legal relations. It was acknowledged that the AIP and thedeed of settlement would be subject to the passing of legislation to give effect to partsof the settlement, and to Ngāti Whātua Ōrākei supporting the passage of suchlegislation.2 Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516.[7] Among the clauses in the AIP was one providing Ngāti Whātua Ōrākei a rightof first refusal (RFR) over certain properties. Among these were Crown-ownedproperties within the RFR area, shown in an attachment to the AIP (the 2006 RFRland). That area may broadly be described as extending across the Auckland isthmusfrom the Waitemata Harbour in the north to the Manukau Harbour in the south, toAvondale in the west and embracing parts of Onehunga, Ellerslie, and Remuera to theeast.[8] The 2006 RFR land was referred to in the statement of claim as land over whichNgāti Whātua Ōrākei has maintained ahi kā since 1840 and has mana whenua.3The 2006 RFR land includes an area transferred to the Crown on 22 October 1840comprising approximately 3,000 acres between Hobson Bay (Matahaharehare) in theeast, Cox's Creek (Opou\Opoututeka) in the west and Mount Eden (Maungawhau) inthe south (the 1840 transfer land).[9] As the High Court found, the terms of the AIP gave rise to widespreaddiscontent among other iwi and hapū of Tāmaki Makaurau.4 They complained thattheir interests had been adversely affected by the process followed. They consideredthat the Crown had accepted an historical account that overstated Ngāti WhātuaŌrākei's historical role and presence, and implementation of the AIP would impingeon their ability to negotiate fair settlements of their own Treaty claims.[10] In 2007 the Waitangi Tribunal conducted an urgent inquiry into the process thathad been followed by the Crown in negotiating with Ngāti Whātua Ōrākei.5The inquiry had been initiated by groups within Tāmaki Makaurau with whomthe Crown was not yet in a settlement process. The interests of other tangata whenuagroups in Tāmaki Makaurau were also affected by the AIP and these groups wereunhappy about how they had been treated. The Tribunal concluded in its report of12 June 2007 that as regards those groups, the Crown's policy and practice had beenunfair, both as to process and as to outcome. It recommended that the proposed3 Except where otherwise stated, references to the statement of claim are to the second amendedstatement of claim, on which the hearing in the High Court took place. "Mana whenua", "ahi kā",and other principles of tikanga relied on in the statement of claim were detailed in the pleadingsas quoted below at [59].4 Ngāti Whātua Ōrākei Trust, above n 2, at [17].5 Waitangi Tribunal The Tāmaki Makaurau Settlement Process Report (Wai 1362, 2007).settlement with Ngāti Whātua Ōrākei not proceed at that stage, and that instead, theOffice of Treaty Settlements should work with the other groups to negotiatesettlements for them. Once that had been done, it would be possible to arrive at asituation where appropriate redress could be offered to Ngāti Whātua Ōrākei and allthe relevant groups. In this way, "the mana of all would be upheld, relationships wouldbe restored, and reconciliation would be possible".6[11] It is unnecessary to record the basis of the Tribunal's findings in any detail.It is sufficient to quote two of the paragraphs from its report. First, the Tribunal said:7The use of "predominance of interests" as a basis for giving exclusive rightsin cultural sites to one group — even when other groups have demonstrableinterests that have not been properly investigated — is a Pākehā notion thathas no place in Treaty settlements. Where there are layers of interests in a site,all the layers are valid. They derive from centuries of complex interactionwith the whenua, and give all groups with connections mana in the site. Foran external agency like The Office of Treaty Settlements to determine that theinterests of only one group should be recognised, and the others put to oneside, runs counter to every aspect of tikanga we can think of. It fails torecognise the cultural resonance of iconic sites, and the absolute imperative oftalking to people directly about what is going on when allocation of exclusiverights in maunga is in contemplation [12] In addition, the Tribunal said:8Although others have customary interests in the Ngāti Whātua o Ōrākei Rightof First Refusal Area, Ngāti Whātua o Ōrākei's right of first refusal is notframed so as to take account of those: they have exclusive rights there inrespect of any of the Crown's properties that become surplus. This hasconsequences for groups who may have cultural ties to those sites. The Crownhas not accounted for this possibility in its framing of redress for Ngāti Whātuao Ōrākei [13] Receipt of the Tribunal's report caused the Crown to pause in its negotiationswith Ngāti Whātua Ōrākei. In March 2009, the Minister for Treaty of WaitangiNegotiations asked the Right Honourable Sir Douglas Graham to act as a facilitatorfor the purpose of furthering discussions with all of the interested parties.His involvement was accepted by all. He embarked on a series of meetings with therelevant iwi and hapū over a period of weeks.6 At x.7 At 96–97.8 At 99.[14] As a result of those discussions, an agreement was made on 12 February 2010,referred to as the Ngā Mana Whenua o Tāmaki Makaurau and Crown FrameworkAgreement (the Framework Agreement). The iwi and hapū members of Ngā ManaWhenua o Tāmaki Makaurau were:(a) Ngāti Whātua Rōpū. These were referred to in the FrameworkAgreement as the hapū of Ngāti Whātua who have spiritual, traditionaland historical interests in respect of any of the maunga;(b) Tāmaki Rōpū, listed as Te Kawerau ā Maki, Ngāti Te Ata,Ngāti Tamaoho, Te Ākitai and Ngāi Tai ki Tāmaki; and(c) Marutūāhu Rōpū, listed as Ngāti Paoa, Ngāti Maru, Ngāti Whanaungaand Ngāti Tamaterā.[15] The Framework Agreement recognised that each of the iwi and hapū has"legitimate spiritual, ancestral, cultural, customary and historical interests withinTāmaki Makaurau". The Crown recognised that each member had such interests, inparticular, in the maunga (mountains) of Tāmaki Makaurau and offered to vest in feesimple the Crown-owned parts of 11 listed maunga, to be held in trust and managedfor the common benefit of the mana whenua and the people of Tāmaki Makaurau.The vesting was to be in the "collective membership". It was envisaged that therewould be a Ngā Mana Whenua o Tāmaki Makaurau entity, whose name would appearon the title to the land. In respect of each maunga, a notation would show the nameof a particular iwi or hapū who wished its spiritual, ancestral, cultural, customary andhistorical interests with the maunga to be recognised in that way. Other provisions ofthe Framework Agreement provided that the maunga would be governed by a statutoryboard comprising equal membership from Ngā Mana Whenua o Tāmaki Makaurauand the Auckland Council.[16] The Crown agreed to explore whether further redress or recognition could bedeveloped to recognise the interests of iwi in other maunga, and in respect of motu(islands) in Tāmaki Makaurau.[17] In addition, by cl 20 of the Framework Agreement, the Crown offered membersof Ngā Mana Whenua o Tāmaki Makaurau a RFR to operate for 170 years from thedate of the agreement in respect of all land held by core Crown agencies in theTāmaki Makaurau area. This area was very extensively defined in cl 23 as comprisingland bounded in the north by a line between just south of Muriwai and Okura, and inthe south by a line between just north of the Waikato Confiscation Line in Port Waikatoto Miranda.9 This RFR would be exercised by the members of Ngā Mana Whenua oTāmaki Makaurau through their three rōpū, that is, those of Ngāti Whātua, Tāmakiand Marutūāhu. There was a general description of the agreed RFR process:25. The process for the RFR will be conducted on the same basis ingeneral terms as in other RFRs offered by the Crown in recent Treatysettlements.26. The general process for the exercise of this RFR was agreed byNgā Mana Whenua o Tāmaki Makaurau on 29 November 2009 and isdescribed below.27. The collective body will administer the exercise of the RFR by itsmembers.28. If the rōpū with the RFR option chooses not to purchase the propertyfrom the Crown, then a right of second refusal will be offered to eitherof the other rōpū or any of the iwi/hapū members of Ngā ManaWhenua o Tāmaki Makaurau, either individually or collectively. Thisright of second refusal will be decided by way of a bidding process,with the highest bid winning the right to purchase. The final structureof the bidding process is yet to be determined.[18] Also on 12 February 2010, Ngāti Whātua o Ōrākei Māori Trust Board andthe Crown entered into what was referred to as a "Supplementary Agreement to theAgreement In Principle for the Settlement of the Historical Claims Of Ngāti Whātuao Ōrākei". Among the recitals to the Supplementary Agreement was recognition of aprocess of discussion that had taken place with other iwi and hapū groups claiminginterests in the Auckland area, including the discussions that had been facilitated bySir Douglas Graham. The purpose of the Supplementary Agreement was to recordhow the AIP could be modified to enable negotiations to be concluded through a deedof settlement and appropriate legislation to be passed by Parliament.9 There were exclusions for specific areas (the Waiuku North and South Blocks and East WairoaBlock raupatu lands), as well as "Crown land acquired under Treaty settlements between theCrown and specific iwi/hapū groups".[19] The Supplementary Agreement proceeded by way of making deletions fromand insertions to the AIP. Relevantly for present purposes, theSupplementary Agreement deleted the provisions of the AIP dealing with the RFRland. The explanation was that: "Clauses 20–29 of the Ngā Mana Whenua o TāmakiMakaurau — Crown Framework Agreement provide redress relating to the Right ofFirst Refusal (RFR) redress."[20] On 5 November 2011, the Crown and Ngāti Whātua Ōrākei (together withNgāti Whātua Ōrākei Trustee Ltd) entered into a Deed of Settlement of HistoricalClaims (the NWDS), which reflected extensive negotiations that followed theSupplementary Agreement.[21] Clauses 2.4–2.10 were under the heading "Ngāti Whātua Ōrākei Statement ofIts Own Position". This section dealt in very general terms with the origin ofNgāti Whātua Ōrākei and addressed the concepts of ahi kā, social organisation,political relations with neighbouring iwi and contact with the Europeans.Ngāti Whātua o Ōrākei's Treaty claim was described in cl 2.9:Ngāti Whātua claim that the Crown by its actions in certain cases, includingthe abrogation of the Crown's right of pre-emption, by its failure to act incertain other cases, and by its failure to fulfil explicit promises made to NgātiWhātua, breached its Treaty guarantee to protect the exercise of theirrangatiratanga over their lands, estates and other valued necessities of life, or"taonga".And then, in the following clause, concerning loss of land and control:In particular, Ngāti Whātua claim that the Crown obtained their agreement toenter into contracts about which they were ignorant and the outcome of whichleft them virtually landless and their fisheries and waterways polluted. In thespirit of the Treaty, this was contrary to the expectation in Ngāti Whātua'sinvitation to the Crown to share in the use of their land in Tāmaki, a sharinghowever, which would leave intact their collective rangatiratanga, their manawhenua.Finally, from having been in control of the Tāmaki Isthmus at time of theirsigning of the Treaty, Ngāti Whātua claim that they were thereafter denied anyconstitutional role in the civil government exercised over the Isthmus, anyway in which they might have averted the disastrous social, economic andcultural consequences of their land loss which they suffered throughout theremainder of the 19th and the 20th century still to come.[22] Clauses 2.11–2.107 were under the heading "Agreed Historical Account".These were introduced by the statement in cl 2.11 that: "The Crown'sacknowledgement and apology to Ngāti Whātua Ōrākei are based on this agreedhistorical account."[23] It would overburden the judgment to set out these provisions of the NWDS inany detail. It is sufficient for present purposes to note that it was recorded that as at1840, the three hapū of what is now Ngāti Whātua Ōrākei occupied settlements andused resource areas across the Tāmaki isthmus, the North Shore, the upperWaitamata Harbour and the Waitakere area. Those groups had gained rights in thoseareas from approximately 1740 "by way of conquest and ahi kā". While theytemporarily relocated as a result of inter-tribal conflicts in the 1820s, settlements werere-established in Ōrākei and other places in the Tāmaki isthmus from about 1835.In September 1840, government officials travelled to the Waitemata Harbour andnegotiated with Ngāti Whātua Ōrākei for the transfer of land for the site of a town.On 20 October 1840, a formal deed was drawn up for the transfer of the land describedabove at [8] as the 1840 transfer land. Clause 2.21 in this agreed historical accountstated:The deed signed by the parties recorded that ₤50 in coin and goods amountingto approximately ₤215 were "te utu mo taua wahi wenua koia tenei". Thiswas translated into English as "the payment for the said land". From NgātiWhātua's point of view, the term "utu" in 1840 represented a broader conceptof reciprocity, ongoing mutual obligation and the maintenance of balancebetween groups.[24] This transaction enabled the establishment of the town of Auckland and it wasrecorded that Ngāti Whātua Ōrākei and the Crown had entered into the transactionwith a view to a "mutually beneficial and enduring relationship".[25] An apology by the Crown was set out at cl 3.10. It provided as follows:The Crown makes this apology to Ngāti Whātua Ōrākei and to their ancestorsand descendants:The Crown recognises that from 1840, Ngāti Whātua Ōrākei sought a closeand positive relationship with the Crown and, through land transactions andother means, provided lands for European settlement.The Crown profoundly regrets and is deeply sorry for its actions which leftNgāti Whātua Ōrākei virtually landless by 1855. This state of landlessnesshas had devastating consequences for the social, economic and spiritualwell-being of Ngāti Whātua Ōrākei that continue to be felt today.The Crown unreservedly apologises for not having honoured its obligations toNgāti Whātua Ōrākei under the Treaty of Waitangi. By this settlementthe Crown seeks to atone for its wrongs, so far as that is now possible, andbegin the process of healing. The Crown looks forward to repairing itsrelationship with Ngāti Whātua Ōrākei based on mutual trust, co-operationand respect for the Treaty of Waitangi and its principles.[26] Clause 4.6 noted that the settlement legislation would be the means by whichNgāti Whātua Ōrākei's historical claims would be settled. In cl 4.8, the partiesacknowledged and agreed that the Deed did not provide for particular cultural andcommercial redress that is to be provided through the "Tāmaki Makauru collectivedeed".10 Clause 4.8.4 described the commercial redress referred to as "theparticipation of Ngāti Whātua Ōrākei in a right of first refusal over land in TāmakiMakaurau for a period of 170 years from the date on which the right becomesoperative".[27] As to the Tāmaki Makaurau collective deed, cl 4.9 said:Ngāti Whātua Ōrākei and the Crown acknowledge and agree that thedevelopment of the redress, referred to in cl 4.8, under the Tāmaki Makauraucollective deed will be in accordance with the provisions of a FrameworkAgreement dated 12 February 2010 between Ngā Mana Whenua o TāmakiMakaurau and the Crown.[28] Further, cl 4.13 contained an acknowledgement by the Crown that even thoughthe historical claims were settled by the NWDS and the settlement legislation:4.13.1 Ngāti Whātua Ōrākei will not have received full redress untilNgāti Whātua Ōrākei enters into an arrangement with the Crown,either through the Tāmaki Makaurau collective deed or otherwise,providing:(a) redress in relation to maunga, motu and harbours; and(b) a right of first refusal over land owned by the Crown in theprimary area of interest; and10 The Tāmaki Makaurau collective deed did not then exist as a formal deed, but its provisions werein the course of being settled.[29] After further negotiations, Ngā Mana Whenua o Tāmaki Makaurau and theCrown entered into a collective redress deed (the CRD) on 8 September 2012.This was effectively the successor to the Framework Agreement, and was a moreformal expression of the matters agreed in it.[30] The CRD contained provisions setting out agreements that had been reachedas to the ownership and management of the maunga and motu, referring to provisionsthat would appear in the "Tāmaki Makaurau collective legislation". Of most relevancefor present purposes, cl 6 of the CRD referred to a limited partnership that would havea right of first refusal in relation to the disposal by the Crown of RFR land. Clauses 6.3and 6.4 provided that:6.3 The iwi and hapū of Ngā Mana Whenua o Tāmaki Makaurau recordtheir agreement that the RFR is not to apply to any land (including acultural redress property or land used for financial or commercialredress) that is required for the settling of historical claims under theTreaty of Waitangi, being those relating to acts or omissions of theCrown before 21 September 1991.6.4 To give effect to that agreement, the Tāmaki Makaurau collectivelegislation will, as provided by s 119 of the draft bill, provide for theremoval of any land required for another Treaty settlement.[31] Reference should also be made to cl 9 of the CRD, which covers the effect ofthe Deed. Clause 9.1 provided that the CRD did not settle any of the historical claimsof the iwi and hapū. Clause 9.2, however, noted that it provided collective Treatyredress for historical claims in respect of the "shared interests of the iwi and hapū".[32] On 19 November 2012, Parliament enacted the Ngāti Whātua Ōrākei ClaimsSettlement Act 2012, implementing the NWDS. On 31 July 2014, Parliament enactedthe Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014(the Collective Redress Act) to give effect to the provisions of the CRD. Section 120of the Collective Redress Act is in the following terms:120 Land required for another Treaty settlement ceasing to be RFRland(1) The Minister for Treaty of Waitangi Negotiations must, for RFR landrequired for another Treaty settlement, give notice to both the RFRlandowner 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.[33] In the meantime, the Crown has continued to negotiate the settlement of Treatyclaims with other iwi. In July 2011, Ngāti Paoa signed what was described as an"Agreement in Principle Equivalent" (the Ngāti Paoa Agreement). Amongst otherthings, Appendix 3 to the Ngāti Paoa Agreement listed a number of properties,including 71 Grafton Road and 136 Dominion Road, as sites over which Ngāti Paoasought to negotiate commercial redress.[34] On 17 May 2013, the Marutūāhu Iwi collective, comprising Ngāti Maru,Ngāti Paoa, Ngāti Tamaterā, Ngāti Whanaunga and Te Patukirikiri also reachedagreement with the Crown in a "Record of Agreement in Relation to Marutūāhu IwiCollective Redress" (the AMCR). It recorded agreements reached to that point in aprocess of negotiation that began in 2009 towards a deed of settlement that wouldprovide collective and iwi-specific redress for historical Treaty claims in respect of theiwi. It envisaged that the iwi would obtain further redress under the CRD. It wasmade clear that any deed of settlement would be conditional on legislation cominginto force.[35] Among the provisions of the AMCR was a clause providing that the deed ofsettlement would oblige the Crown to transfer to the Marutūāhu governance entity onsettlement date the properties described in sch 3, unless otherwise agreed.The properties included "up to 13 school sites".The challenged decisions[36] The decisions challenged by Ngāti Whātua Ōrākei are described in thestatement of claim as the revised Ngāti Paoa decision and the Marutūāhu decision,both made by the Minister for Treaty of Waitangi negotiations.The revised Ngāti Paoa decision[37] The revised Ngāti Paoa decision was made on 21 May 2016, but communicatedto Ngāti Whātua Ōrākei in a letter dated 8 July 2016. It followed earlier discussionsand correspondence concerning a proposal made on 17 August 2015 for the transferof the land at 136 Dominion Road and 71 Grafton Road to Ngāti Paoa.[38] The Minister's letter of 17 August 2015 to Ngāti Whātua Ōrākei was in thefollowing terms:Preliminary decision in regards to proposed redress for Ngāti PaoaThank you for your engagement in relation to the proposed redress offer toNgāti Paoa of the opportunity to purchase 71 Grafton Road and 136 DominionRoad.You have raised several concerns with me and my officials in relation to theprovision of redress for other iwi within your core area of interest.I understand your concerns to be primarily about, but not limited to, theCrown's application of the "layers of interest" concept as referenced in the2007 Tāmaki Makaurau Report.As you know, the "layers of interest" concept was a consideration in theTāmaki Collective negotiations, focused on the maunga and the area-wideRight of First Refusal, resulting in the Ngā Mana Whenua o Tāmaki MakaurauCollective Redress Act (2014). I consider the concerns you have raisedrequire further thought and, once I have had an opportunity to do this, I wouldlike to discuss this issue further with you.Notwithstanding that, in relation to Ngāti Paoa, this offer of redress is notguided by the concept of "layers of interest". Rather the redress offer is basedon considering Ngāti Paoa's historical interests in this region, and providingan appropriate and fair offer of redress. Based on the information the Crownhas received, I have determined that Ngāti Paoa have interests in the centralTāmaki region and accordingly my preliminary decision is to confirm theredress offer of the opportunity for Ngāti Paoa to purchase 71 Grafton Roadand 136 Dominion Road.In my view you have not this far presented any historical or contemporaryevidence to suggest that Ngāti Paoa do not have interests in this region whichwould change my decision to offer the proposed redress.If you have any information on Ngāti Paoa's historical or contemporaryinterests or any other information you wish me to take into account in makingmy final decision, please advise by Monday 31 August 2015. I intend tomake a final decision shortly thereafter.[39] The Minister wrote to representatives of Ngāti Paoa on the same day. In itssubstance, the letter was to similar effect, recording that the Minster had made apreliminary decision to confirm the redress offer of the two properties on the basis ofNgāti Paoa's historical and contemporary interests, including an interest in the centralTāmaki region. This decision was forthwith challenged by the commencement of thepresent proceeding, in which the preliminary decision was referred to as theNgāti Paoa decision.11[40] The letter of 8 July 2016, addressed to the Chair and Deputy Chair ofNgāti Whātua Ōrākei Trust was in the following terms:Final decision in regards to the offer of 136 Dominion Road and71 Grafton Road landbank properties for Ngāti PaoaOn 17 August 2015 I wrote to you with my preliminary decision onoverlapping claims between Ngāti Paoa and Ngāti Whātua Ōrākei in relationto the Crown's redress offer of 136 Dominion Road and 71 Grafton Roadlandbank properties (the properties) to Ngāti Paoa.You raised several concerns with me and I provided you with two weeks upto 31 August 2015 to provide me with more information to consider for myfinal decision.On 26 August 2015 your counsel filed papers in the Auckland High Court inrelation to the Crown's process for negotiating Treaty settlement redress inTāmaki in particular in relation to overlapping claims.On 21 May 2016 I revised my preliminary decision. I decided the Crownwould not sell the properties. Rather, it would be for Parliament to authoriseany transfer and proposed that settlement legislation would provide thatNgāti Paoa be given a right to purchase the properties at settlement date.Given the properties will not be alienated from the Crown prior to settlementdate and unless Parliament permits it, I consider I am able to proceed to a finaldecision on the revised redress proposal. I note the final decision relatessimply to the offer of redress: Ngāti Paoa may or may not accept.I have decided that there are no overlapping claims that prevent further workon reaching an agreement with Ngāti Paoa, to be implemented by legislation.I intend proposing that settlement legislation would constitute a right topurchase the properties at settlement date. I have instructed officials tocontinue negotiations with Ngāti Paoa and to continue parallel drafting oflegislation.[41] It should be emphasised that the revised decision communicated in the letterof 8 July 2016 meant that the properties would not be transferred to Ngāti Paoa unlessand until legislation was passed. It was no longer a proposal to transfer the properties11 The cause of action challenging the Ngāti Paoa decision was pursued in the High Court, but hasbeen abandoned on appeal. It was clearly overtaken by the Minister's revised decision of 2016.by means of what was effectively an agreement for sale and purchase. Instead,legislation would be introduced that, if passed, would confer a right to purchase.[42] Ngāti Whātua Ōrākei commenced judicial review proceedings ofthe Minister's preliminary decision in mid-2015, which was the genesis of theproceeding now before this Court.The Marutūāhu decision[43] The second impugned decision was contained in a letter dated 13 May 2016,again addressed to the Chair and Deputy Chair of the Ngāti Whātua Ōrākei Trust.In that letter the Minister recorded a final decision to make offers in respect of namedproperties as redress to the Marutūāhu Collective.[44] Once again, the decision was made following earlier discussions, and there wasa preliminary decision by the Minister (communicated by letter dated 22 April 2016)to make a redress offer of one cultural redress property and the opportunity to purchaseup to nine commercial properties in Tāmaki Makaurau for the Marutūāhu Collective.In the letter of 22 April 2016 to representatives of Ngāti Whātua Ōrākei the Ministerwrote:You have raised several concerns with me and my officials in relation to theprovision of redress for other iwi within your core area of interest.I understand your concerns to be primarily about the 2006 Ngāti WhātuaŌrākei Agreement in Principle exclusive Right of First Refusal Area (the"2006 proposed RFR area") and the Crown's application of the "layers ofinterest" concept as referenced in the 2007 Tāmaki Makaurau SettlementProcess Report.The "2006 proposed RFR area" referred to was rescinded during theNgāti Whātua Ōrākei settlement negotiations and after consideration of theWaitangi Tribunal's 2007 Tāmaki Makaurau Settlement Process Report.The 2006 proposed RFR area was not included in the 2010 Ngāti WhātuaŌrākei refined Agreement in Principle[12] or the 2011 Ngāti Whātua ŌrākeiDeed of Settlement.The crown has not recognised an exclusive area of interest for Ngāti WhātuaŌrākei and has never given undertakings that redress would not be providedto other iwi in this area.12 We take the reference to the "2010 Ngāti Whātua Ōrākei refined Agreement in Principle" as beinga reference to what we have referred to above as the Supplementary Agreement (footnote added).[45] The letter continued by noting that this stance of the Crown had beencommunicated to Ngāti Whātua Ōrākei by a memorandum from the formerChief Crown Negotiator on 27 September 2016 before Ngāti Whātua Ōrākei initialledtheir Deed of Settlement. The letter also pointed out that the provision of redress toother iwi was also contemplated in that s 120 of the Collective Redress Act enablesland to be removed from the Ngā Mana Whenua o Tāmaki Makaurau RFR land ifrequired for another Treaty settlement.[46] The Minister's letter of 13 May 2016 stated:Final decision in regards to one cultural property and the opportunity topurchase up to nine commercial properties for the Marutūāhu CollectiveI wrote to you on 22 April 2016 with my preliminary decision on overlappingclaims between the Marutūāhu Collective and Ngāti Whātua Ōrākei in relationto the Crown's redress offer to the Marutūāhu Collective of:a) the Fred Ambler lookout site, as a cultural redress property;b) deferred selection over the Boston Road Probation Centre, 3 GarfieldStreet, and 35 Grafton Road;c) five school sites available for selection as deferred selection propertiessubject to specified selection criteria and leaseback; andd) deferred purchase of New Zealand Transport Agency land at Waipapa.My letter provided you two weeks up to 6 May 2016 to consult with theMarutūāhu Collective to reach a resolution or provide me with information toconsider for my final decision. Neither of these has occurred and accordinglyI have made a decision.Final decisionMy final decision is to confirm the redress offer of one cultural redressproperty and the opportunity to purchase up to nine commercial properties inTāmaki Makaurau for the Marutūāhu Collective.High Court proceedings regarding Ngāti Paoa redressYour counsel, Mr Nick Wells, wrote to me about my preliminary decision on1 April 2016. His letter refers to the current High Court proceedingsconcerning my preliminary decision to offer Ngāti Paoa an opportunity topurchase two properties in central Tāmaki Makaurau prior to settlement date.The Crown's assurance that it will not make a final decision on the sale andpurchase of those two properties prior to settlement date remains in place.However, I do not regard it as inappropriate to continue to engage with theMarutūāhu Collective and Ngāti Paoa in negotiations towards the full and finalsettlement of their respective historical claims.Nor do I consider the current High Court proceedings concerning Ngāti Paoaand the two "early release" properties are relevant to my preliminary or finaldecisions on the offers to the Marutūāhu Collective. The two processes aredistinct, and deal with proposed redress in differing ways.[47] In a letter dated 19 May 2016, Chapman Tripp acting for Ngāti Whātua Ōrākeiwrote to the Crown Law Office pointing out that all of the properties the subject of theMinister's decision were within the rohe of Ngāti Whātua Ōrākei, in which it "claimsexclusive ahi kā through mana whenua". The letter rejected the Minister's claim thatthe High Court proceedings were not relevant to this decision: the High Courtproceedings alleged that this sort of decision was unlawful, and Ngāti Whātua claimed"an identical interest in the Marutūāhu Properties" as it did in the proceedingconcerning the Ngāti Paoa properties. The letter noted an amended statement of claimhad been filed challenging the Marutūāhu decision and sought an assurance that itwould not be implemented pending the conclusion of the legal challenge.[48] Crown Law replied for the Minister on 20 May 2016. The letter noted thatthe Crown intended that the Marutūāhu decision would be implemented only throughsettlement legislation, and although negotiations would continue with a view toinitialling a deed of settlement, that would not alter Crown ownership of the properties.Further, "[t]he Crown will not transfer the properties prior to settlement legislationbeing enacted".The Minister's approach[49] The Minister at the time explained the background to the two decisions in anaffidavit filed in the High Court. He emphasised that legislation would be the meansby which any settlement was implemented. The Minister also explained in generalterms the process followed in Treaty settlement negotiations.[50] The Minister referred to a Crown practice of encouraging claimant groups todiscuss their interests with the neighbouring group in an endeavour to reach agreementin the case of overlapping claims. However, in the absence of agreement, heacknowledged that the Crown may have to decide whether it is "satisfied that theoverlapping claims had been addressed" to the point that redress may be included inany settlement. In deciding whether to offer a particular property as redress, he notedthree general principles that guide the Crown:(a) its wish to reach a fair and appropriate settlement with the claimantgroup;(b) its wish to maintain its ability to provide appropriate redress to otherclaimant groups and achieve a fair settlement of their historical claims;and(c) its wish to ensure that redress offered to a claimant group innegotiations strikes a balance between the Crown's obligations to thatgroup and its obligations with "overlapping settled groups".[51] The Minister observed:The Treaty settlement process is not intended to, and does not, establish ordefinitively recognise claimant group boundaries according to tikanga.Settlements may recognise areas of interest, but iwi and/or settling groups mayhave overlapping areas of interest. the settlement process does not createor confirm any exclusive status, such as exclusive mana whenua or ahi kā.Such matters can only be decided between claimant groups themselves.The vesting of a particular site as redress should not be seen as a signal thatthe Crown is making such determination. Rather, it is simply a recognitionthat the Crown accepts that a claimant group has a level of interest that theCrown considers makes the particular grant of redress appropriate in light ofall other circumstances.[52] The Minister referred to the difficulty of Treaty negotiations, describing themas "quintessentially political processes requiring compromises on all sides".Among other things, proposals have to take into account the location and value of theproperties, whether they are being sought for commercial or cultural redress, and thebalance of the settlement packages available to each group.[53] The Minister also gave evidence confirming that the drafting of legislation togive effect to a deed of settlement is now a standard part of Crown–Māori engagementover Treaty settlements. A settlement deed is not legally binding until it receiveslegislative approval from Parliament and the settlement of historical claims in a deedof settlement is now ordinarily conditional on such legislation being passed.[54] In the balance of this judgment we refer to the revised Ngāti Paoa decision andthe Marutūāhu decision as the disputed decisions, unless it is necessary to distinguishthe two. While use of the word "decision" is helpful for the purpose of addressing thearguments of the parties, the question of whether the Minister's letters constituteddecisions for the purposes of judicial review is one of the issues in the appeal.The claims in the High Court[55] Ngāti Whātua's claim in the High Court was for declarations. If granted, thedeclarations as formulated in the prayer for relief would state, amongst other things,that:(a) Ngāti Whātua Ōrākei has ahi kā and mana whenua in relation to the2006 RFR land and the 1840 transfer land;(b) when applying its overlapping claims policy to that land the Crownmust act in accordance with tikanga and in particular Ngāti WhātuaŌrākei tikanga;(c) the Crown's development and making of offers concerning that land ina proposed Treaty settlement with iwi who do not have ahi kā in respectof that land must be made in accordance with tikanga and in particularNgāti Whātua Ōrākei tikanga; and(d) in order to comply with tikanga when contemplating, developing ormaking decisions under its overlapping claims policy to offer interestsin that land to other iwi, the Crown must:(i) appropriately consult with Ngāti Whātua Ōrākei;(ii) acknowledge Ngāti Whātua Ōrākei's ahi kā;(iii) decline to include land in the proposed settlement if there isevidence that the transfer would unjustifiably erodeNgāti Whātua Ōrākei's mana whenua; and(iv) decline to include the land in a proposed settlement where theland has previously been the subject of a gift to the Crownunless Ngāti Whātua Ōrākei has provided its consent.[56] Declarations were also sought that the disputed decisions were developed andmade inconsistently with: the Crown's obligation to make those decisions inaccordance with tikanga; the Treaty of Waitangi and its principles; and Ngāti WhātuaŌrākei's rights as affirmed by the United Nations Declaration on the Rights ofIndigenous Peoples.[57] These declarations were sought on the basis of pleadings alleging thatthe Crown is required to exercise "any powers" to make the disputed decisions: inaccordance with Tikanga; so as to acknowledge appropriately Ngāti Whātua Ōrākei'sahi kā and not erode it; consistently with the Treaty and the honour of the Crown inthis context; and so as to uphold the rights and freedoms affirmed in theUnited Nations Declaration on the Rights of Indigenous Peoples.[58] In paragraph [31] of the amended statement of claim, said by Mr Hodder QCfor Ngāti Whātua Ōrākei to be at the heart of the claim, it was alleged that pursuant tothe NWDS, the Ngāti Whātua Ōrākei Claims Settlement Act, the honour of the Crownand the United Nations Declaration on the Rights of Indigenous Peoples,Ngāti Whātua Ōrākei has rights, and the Crown has corresponding obligations, to:(a) be fully consulted regarding proposals on treaty redress involving the2006 RFR land or the 1840 transfer land;(b) have the Crown acknowledge the ahi kā of Ngāti Whātua Ōrākei; and(c) prevent the Crown from transferring or unilaterally developingproposals involving that land for the purposes of treaty settlements ifthat would be offensive to Ngāti Whātua as a matter of tikanga,unjustifiably erode its mana whenua in the land, or, in the case of the1840 transfer land, without the consent of Ngāti Whātua Ōrākei.[59] The particulars of tikanga relied on for the purposes of the claim were pleadedas follows:22.8 the principles of tikanga relied on for the purposes of paragraphs 22.1,22.4 and 22.5 above are:(a) ahi kā or ahi kā roa — the concept of keeping the home fireslit, more broadly understood as intergenerational (usuallythree generations) continuous occupation, use and control ofland;(b) mana whenua — the ability to influence and exercise controlover land through mana, recognised in statutory definitions ascustomary authority exercised by iwi or hapū in a definedarea;(c) take tuku — traditional principles applying to the gifting ofland, including an expectation of return of gifted land insteadof alienation, and of an ongoing relationship and reciprocalobligations;(d) tuku whenua — the gifting of land with the inherentrequirement of respect for the mana of the gifting party by therecipient, such that the land in question is never truly orcompletely alienated, and the expectation of an ongoingrelationship and reciprocal obligations.[60] The statement of claim alleged that the Crown had not complied with itsobligations. It was alleged that in making the disputed decisions (and in adopting theoverlapping claims policy) the Minister had erred in law by misdirecting himself as tothe obligation he had to act in accordance with tikanga and the other duties alleged.A second cause of action alleged a failure to take into account the same matters asmandatory relevant considerations.[61] Davison J rejected these arguments. He considered that Ngāti Whātua's claimto exclusive and preeminent rights was "wholly inconsistent" with the formal legalsteps it had taken following release of the Waitangi Tribunal's report in 2007 —The Tāmaki Makaurau Settlement Process Report.13 This was a reference to the13 Ngāti Whātua Ōrākei Trust, above n 2, at [135].Supplementary Agreement, the NWDS and the CRD. He considered that in thisprocess, Ngāti Whātua Ōrākei had effectively relinquished the exclusive RFRprovisions contained in the AIP, which were replaced by the collective arrangementsapplying to land throughout Tāmaki Makaurau set out in the CRD.[62] The Judge also considered that the disputed decisions had been made in thecontext of the development and preparation of legislation, which, if enacted, wouldprovide a lawful basis for the transfer of the properties concerned.14 The decisionshad been made having regard to government policy for dealing with overlappingTreaty claims. The Minister had made a "quintessentially political decision" as partof a process of offering redress in circumstances where overlapping claims had beenmade and the iwi were themselves unable to reach agreement.15 The proposal toimplement the decisions by legislation meant that, irrespective of any interests ofNgāti Whātua Ōrākei that may have been affected or infringed by the Minister'sactions, those actions were not justiciable. There was no "legal yardstick" againstwhich to examine and assess whether the disputed decisions were made pursuant to alawful exercise of public power.16[63] In these circumstances, the Court would not grant declaratory relief directed atimposing obligations or constraints on the Crown in relation to the preparation oflegislation to be submitted for the consideration of Parliament.17 This conclusion wasclearly based on the extensive discussion, earlier in the judgment, of authorities reliedon in support of the strike-out application, said to establish that the courts will notrestrain or otherwise interfere with decisions by Ministers as to proposed legislation,to enter into agreements to take action subject to authorising legislation, or to takesteps preliminary to such legislation and such agreements.1814 At [139].15 At [141].16 At [142].17 At [143].18 The cases discussed included Te Runanga o Wharekauri Rekohu Inc v Attorney-General [Sealord][1993] 2 NZLR 301 (CA); Comalco Power (New Zealand) Ltd v Attorney-General [2003] NZAR1 (HC); Milroy v Attorney-General [2005] NZAR 562 (CA); New Zealand Maori Council vAttorney-General [2007] NZCA 269, [2008] 1 NZLR 318; and Waitara Leaseholders AssociationInc v New Plymouth District Council [2007] NZSC 44, (2007) 2 NZTR 17-011.[64] For these reasons, the Judge considered Ngāti Whātua Ōrākei's claim couldnot possibly succeed and the application to strike it out should succeed.The appealNgāti Whātua Ōrākei's submissions[65] In advancing the appeal, Mr Hodder accepted that the Court's role is to resolvedisputes by reference to legal criteria and does not extend to resolving political issues,in particular, the merits of political decisions and legislation. Further, he accepted thatthe policy merits of a Treaty settlement package involved a political decision and thereis no legal yardstick able to be used by the courts to determine whether there shouldbe a settlement, with whom and on what terms.[66] He also accepted that the principle of comity or non-interference inparliamentary processes is well-established. He submitted, however, that the comityprinciple was not an answer to the claims pleaded by Ngāti Whātua Ōrākei.These were designed to obtain resolution of legal claims against the Crown, and whichthe Crown had denied. Those claims were both general and specific.[67] At the general level, Ngāti Whātua Ōrākei's claim is that it had exclusive manawhenua in central Auckland, arising from its relationship with that land since 1740.The various allegations about ahi kā and tikanga pleaded in the statement of claimwere such as to create ongoing legal rights and corresponding legal obligations of theCrown. At the more specific level, the rights and obligations were relevant to specificproperties within Ngāti Whātua Ōrākei's rohe, which the Minister had decided in thedisputed decisions should be available for Treaty settlements. On this approach, evenif the specific claims were to be negated by legislation, the general level claims wouldremain as ongoing legal issues. Mr Hodder submitted the Crown has a continuinglegal obligation to recognise Ngāti Whātua Ōrākei's mana whenua in formulatingdecisions about dealing with land in the central Auckland area otherwise than underthe collective RFR processes.[68] Mr Hodder submitted that the High Court had wrongly extended the comityprinciple so as to prevent the Court responding to declarations designed to clarifyobligations of the Crown. The Court's failure to clarify the Crown's obligations inapplying its overlapping claims policy overlooked the fact that Ngāti Whātua Ōrākeialleged that the policy was invalid. It was inappropriate to apply the comity doctrineso as to prevent inquiry into matters of legal obligation of the Crown, in what the Courtitself described as a "pre-legislative context".19[69] Mr Hodder also sought to emphasise that in the context of the present strike-outapplication, Ngāti Whātua Ōrākei's evidence-based pleadings, including its assertionsof mana whenua and about tikanga must be taken as able to be proved. He referred toparagraph [31] of the amended statement of claim (summarised above at [58]), whichhe said was at the heart of Ngāti Whātua Ōrākei's case. Mr Hodder submitted that theHigh Court erred in that, instead of taking the key allegations as matters capable ofproof, it had in effect held that the allegations were incorrect. This was inappropriatein a strike-out context and the claims should have been allowed to proceed to trial.The respondents' submissions[70] Mr Ward, for the Attorney-General, submitted that the disputed decisionsformed part of the development of legislative proposals and were not amenable tojudicial review as a consequence. Ministers must remain free to propose anylegislation to the House, even if the Bill would authorise what would otherwise beunlawful. The freedom to propose legislation was dependent on an ability to developproposals and there was no basis in principle to distinguish the present case fromothers in which the principles of comity had been applied.[71] Mr Ward also submitted that the Minister's decision as to what redress shouldbe provided was a highly political matter involving consideration of a range of fiscaland political factors. There was no yardstick that the Court could use for the purposesof reviewing the merits of those decisions. Further, the disputed decisions did notaffect Ngāti Whātua Ōrākei's rights or interests. Any effect would only arise if andwhen legislation were passed.19 Ngāti Whātua Ōrākei Trust, above n 2, at [123].[72] Similar submissions were advanced by Mr Goddard QC, counsel forNgāti Paoa, and Mr Majurey, counsel for Marutūāhu. Both emphasised that theagreements to transfer the properties will not have effect, and no transfers will occur,unless they are authorised by legislation, at which stage they will be, by definition,lawful.[73] Mr Goddard submitted it is clear as a matter of basic principle that even if itwould be unlawful to decide to transfer the properties in the absence of authorisinglegislation, it could not be unlawful for Ministers to decide that it would be in thepublic interest to transfer the properties if authorising legislation is enacted, to prepareand propose legislation to that effect, and to enter into an agreement providing for thetransfer to occur subject to the enactment of the authorising legislation.[74] He submitted further that there are no legal requirements enforceable throughthe courts concerning the content of proposals for legislation (or proposals for steps tobe taken if authorised by legislation) or concerning the process by which suchproposals may be developed by the Executive. Focusing in particular on the pleadingin paragraph [31] of the statement of claim, Mr Goddard argued that the duties assertedcould not be relied on in respect of the disputed decisions because it is clear that theywill not be implemented except by legislation.AnalysisApproach[75] A strike-out application is to be approached in accordance with the principlessummarised by this Court in Attorney-General v Prince.20 The Court is required toassume that the facts pleaded in the statement of claim are true, whether or not theyare admitted. Before a court can strike the proceedings out, the causes of action mustbe so clearly untenable that they cannot possibly succeed; the jurisdiction is to beexercised sparingly and only in a clear case where a court is satisfied it has the requisitematerial. However, the fact that the application raises difficult questions of law, andrequires extensive argument, does not exclude the strike-out jurisdiction.20 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.[76] In Couch v Attorney-General the Chief Justice emphasised the care necessarywhere the law is confused or developing.21 In the present case, Davison J accepted asubmission made by Mr Hodder that this is the first judicial review concerning Crownconduct after the settlement of a Treaty claim, and was novel for that reason.22Mana whenua[77] Mr Hodder referred to the allegations in the statement of claim thatNgāti Whātua Ōrākei has continuously maintained ahi kā in areas of the centralAuckland region, that through ahi kā it has mana whenua in the central Aucklandregion, and that the disputed properties are within the areas over which it hasmaintained ahi kā since 1740 and over which it has mana whenua. He complainedthat instead of accepting those allegations of fact, the High Court had made findingswhich effectively found they were wrong. He identified five findings in particular:(a) First, the statement that the Waitangi Tribunal had already consideredthe question of overlapping and coexisting mana whenua of a numberof other iwi in relation to the 2006 RFR land and the 1840 transferland.23 In addition, the Judge went on to refer to the claims of other iwiwho also asserted mana whenua over the Tāmaki isthmus and centralAuckland area.24(b) Second, the finding that the effect of the collective arrangementsrepresented by the CRD and the Collective Redress Act were to settlethe historical claims by iwi including Ngāti Whātua Ōrākei and theother iwi to which the collective arrangements applied.25(c) Third, the finding that the collective arrangements recognised the manawhenua of other iwi in the 2006 RFR land and the 1840 transfer land.2621 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].22 Ngāti Whātua Ōrākei Trust, above n 2, at [84].23 At [134].24 At [135].25 At [135]–[136].26 At [134].(d) Fourth, that Ngāti Whātua Ōrākei acknowledged those claims byparticipating in the collective arrangement,27 and in so doing knowinglyand voluntarily relinquished the claims to rights in the 2006 RFR landand the 1840 transfer land it now sought to pursue.28(e) Finally, the finding that Ngāti Whātua Ōrākei's claim in this proceedingis "wholly inconsistent with the formal legal steps taken byNgāti Whātua" Ōrākei following the Waitangi Tribunal's 2007 report.29[78] Mr Hodder submitted that by making these determinations the Judge haddeparted from the required approach. If the pleaded claims in relation to manawhenua, the area of primary interest and the ongoing risk to Ngāti Whātua Ōrākei'sinterests were assumed to be provable, as they should have been, the Judge was wrongto find that Ngāti Whātua Ōrākei did not have a preeminent interest in the 2006 RFRland and the 1840 transfer land. The finding that the entry into the collectivearrangements had effectively extinguished Ngāti Whātua Ōrākei's mana whenua wasa clear and factual finding made without the necessary factual inquiry.[79] We consider there is merit in Mr Hodder's criticisms of this aspect of thejudgment. We understand the reasons that may have led the Judge to make the findingsthat he did based on the terms of the agreements reached and the process followingthe Waitangi Tribunal's 2007 report. On the face of it, at least insofar as the documentsare concerned, Ngāti Whātua Ōrākei was prepared to submit to the collectivearrangements entered into for the purpose of settling Treaty claims acrossTāmaki Makaurau in substitution for the position it had achieved in 2006. Clause 4.8of the NWDS specifically stated that both cultural and commercial redress would beprovided through the CRD, not the NWDS. That expressly included Ngāti WhātuaŌrākei's participation in a right of first refusal over land in Tāmaki Makaurau.The CRD, as has been seen, gave no right to exclusivity in respect of any particulararea. And it remains clear that Ngāti Whātua Ōrākei's claims to a preeminent interestin central Auckland are disputed by Ngāti Paoa and Marutūāhu.27 At [134].28 At [135] and [138].29 At [135].[80] Mr Majurey sought leave to produce a document at the hearing in this Courtthat had not been in evidence in the High Court. This was a copy of a memorandumdated 27 September 2011 sent to Ngāti Whātua Ōrākei, Marutūāhu and Ngāi Tai kiTāmaki by the Crown's Chief Negotiator, Mr Mike Dreaver. Mr Hodder was opposedto us receiving the document on the basis that it did not add anything, but havingreflected on some of the arguments presented we have decided to grant Mr Majurey'sapplication. In the memorandum, Mr Dreaver recorded he had been asked whetherthe Crown would agree to a veto right for other groups over redress offered toNgāti Whātua Ōrākei, or to a veto right in favour of Ngāti Whātua Ōrākei over redressto be offered to other groups. He recorded the Crown was not prepared to do either.It would instead prefer to make a careful assessment of appropriate iwi-specificsettlement offers after considering the views of all other groups with an interest.Ngāti Whātua accordingly signed the NWDS and the CRD knowing that neither gaveit an exclusive right in respect of any of the land available for commercial redress.[81] However, it must be remembered that the area embraced by the CRD is muchmore extensive than the area in which Ngāti Whātua Ōrākei assert maintenance of ahikā and mana whenua rights. The area extends from Muriwai in the north-west toMiranda in the south-east. From the point of view of Ngāti Whātua Ōrākei there wasaccordingly scope for the interests of other iwi to be met outside the area in whichNgāti Whātua Ōrākei claimed to have preeminent rights.30 Further, their entry into theCRD and acceptance of the provisions in the Collective Redress Act did notnecessarily establish that they accepted the appropriateness of any particular proposalfor any of the 2006 RFR land to be transferred to another iwi.[82] As Mr Hodder pointed out, the collective arrangements did not purport to settlethe historical claims of those comprising Ngā Mana Whenua o Tāmaki Makaurau andthe preamble to the Collective Redress Act expressly provided that the historicalclaims of the iwi and hapū constituting the collective would be subject to individualsettlements with the Crown. Consistently with this, neither the CRD nor theCollective Redress Act contained acknowledgements or apologies in respect ofbreaches of the Treaty, nor any agreed historical account in respect of the appropriate30 Whether use of land outside that area to settle the claims of other iwi would in fact have beenappropriate is not the present question.redress. Mr Hodder claimed that so far as Ngāti Whātua Ōrākei was concerned, it hadentered into the CRD as an exercise of its mana whenua only intending to be bound tothe extent of the express term of the arrangements. It would have declined toparticipate had there been any suggestion that by doing so it was agreeing to abandonits mana whenua.[83] We consider the judgment's conclusions on these issues demonstrate whydisputed factual allegations in a statement of claim must be accepted in the context ofa strike-out application. Had the claim been left to proceed to trial, the matters thatMr Hodder was left to address in argument about Ngāti Whātua Ōrākei's intentions inentering into the collective arrangements and how it considered those arrangementscould be implemented while respecting its mana whenua could have been the subjectof evidence. In the result, Ngāti Whātua Ōrākei have been left with findings that ithas abandoned its strongly asserted relationship with the 2006 RFR land, which itconsiders are wrong, when the proper course to have followed was simply to assumethat the key factual matters asserted in the statement of claim could all besubstantiated.[84] Notwithstanding that conclusion, however, we do not think the High Courtjudgment turned on these factual findings, which we consider should not have beenmade. The conclusion the claim could not succeed rested on the non-justiciable natureof the disputed decisions and the fact that any adverse effect on Ngāti Whātua Ōrākeiwould arise, not as a consequence of the decisions, but as a result of the enactment oflegislation that was necessary to transfer the properties.Justiciability and comity[85] The essence of Ngāti Whātua Ōrākei's case is that the disputed decisionsshould not have been made and the overlapping claims policy should not have beenapplied to the properties in question because of breaches of Ngāti Whātua Ōrākei'srights. The analysis of those propositions, however, is inevitably framed by the factthat the decisions are to be implemented by legislation. That is plain from a readingof the letters of 20 May 2016 (the Marutūāhu decision) and 8 July 2016 (the revisedNgāti Paoa decision). The disputed decisions have no life or effect outside thiscontext. We do not consider it inappropriate or wrong to describe the decisions ashaving been made in the development of legislative proposals.[86] In Te Runanga o Wharekauri Rekohu Inc v Attorney-General (Sealord)negotiations between Māori interests and the Crown had resulted in a deed thatprovided for the Crown to provide Māori with capital to participate in a joint ventureto purchase Sealord Products Ltd, a company that held 26 per cent of the total fishingquota.31 Iwi and other Māori groups opposed to the deed commenced a proceeding inthe High Court. Part of the agreement reached was that the Crown would introducelegislation to give effect to various parts of the deed and to amend the Treaty ofWaitangi Act 1975. This Court was critical of the wording insofar as it implied thatthe Crown had agreed to introduce legislation with a "described effect". This couldnot have any legal effect.32 The Court described the deed as a "compact of a politicalkind, its subject-matter so linked with contemplated Parliamentary activity as to beinappropriate for contractual rights".33 However, Parliament was free, if it saw fit, tomake the legislative changes the deed envisaged: "Parliament was free to do so beforethe deed and remains free to do so afterwards."34[87] The most important aspect of the case for present purposes is the passage inwhich the Court dealt with what it described as the "established principle ofnon-interference by the Courts in parliamentary proceedings".35 While the exact scopeand its exact basis were open to debate:36However it be precisely formulated and whatever its limits, we cannot doubtthat it applies so as to require the Courts to refrain from prohibiting a Ministerfrom introducing a Bill into Parliament. public policy requires that the representative chamber of Parliament shouldbe 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.31 Sealord, above n 18.32 At 308.33 At 308.34 At 309.35 At 307.36 At 308.[88] On the basis of this reasoning, this Court concluded that the proceedingcommenced in the High Court had no realistic prospect of success and struck out theproceedings as disclosing no reasonable cause of action.37[89] In Milroy v Attorney-General the Crown had entered into a deed withNgāti Awa to settle claims found by the Waitangi Tribunal to have been made out.38The proposed settlement described in the agreement would include the transfer ofcertain Crown forest land in respect of which there were cross-claimants includingrepresentatives of Tūhoe. They sought to challenge part of the settlement involvingthe transfer of about 9,300 hectares to Ngāti Awa before Tūhoe's own claim could beheard and determined by the Waitangi Tribunal. The concern raised was that if thetransfer to Ngāti Awa went ahead, the land would no longer be available to be returnedto Tūhoe in the event of their claim being successful. That result would be contraryto the terms of an agreement and deed earlier entered into and given effect in theCrown Forests Assets Act 1989.39[90] The Deed of Settlement between the Crown and Ngāti Awa provided for theagreement to be conditional upon the proceeding being dismissed or abandoned.Further, it provided for the transfer of the relevant lands upon settlement, which wasto be effected in accordance with legislation the Crown had undertaken to introducewithin six months. It was only if and after the proposed legislation was passed thatthe lands would be transferred.40[91] There had been an attempt to settle by withdrawing from the settlementapproximately 25 per cent of the land in which Tūhoe claimed an interest, but theyrejected that proposal. The Minister in Charge of Treaty of Waitangi negotiationsnevertheless decided to proceed with the amended settlement proposal, which wasapproved by Cabinet on 20 May 2002. The High Court dismissed an application forreview on the basis that neither the Minister's decisions nor the Cabinet approval ofher decisions were reviewable in the courts.37 At 309.38 Milroy v Attorney-General, above n 18.39 At [2].40 At [3].[92] The statement of claim had pleaded seven causes of action, all directed to theMinister's decision. On appeal, counsel for the appellants acknowledged that neitherthe Cabinet decision of 20 May 2002 nor legislation proposed to implement thedecision were reviewable. Counsel submitted, however, that the advice received bythe Minister could be challenged and that it had tainted the decision she made on thebasis of it. It was alleged the advice was incomplete and inaccurate, and failed toidentify all relevant considerations for the Minister.[93] Counsel for the appellant had contended in argument that officials were undera legal duty to advise according to law and that the case was a conventional attack onorthodox judicial review grounds on the process leading up to the Minister'sinvolvement and her decision-making. In rejecting that argument, Gault P, writing forthe Full Court, said:[11] In reality the argument outlined represents an attempt to draw theCourt into an examination of the accuracy and completeness of the advice ofofficials in the course of the formulation of government policy even thoughno rights are affected by the advice. This would take the Courts into the veryheart of the policy formation process of government. We were not referred toany authority for such a course.[94] Gault P recorded that counsel had been driven to accept that the provisions ofthe advice did not affect the rights of any persons or even have the potential to do so.It would be the resulting legislation and Executive acts in accordance with it thatwould have that impact.41 Then, after referring to passages in Sealord, Gault P said:[14] The circumstances of the case in which those remarks were made areindistinguishable in principle from those presented in this case. The advice ofofficials is a mere preliminary having no legal effect: New Zealand MaoriCouncil v Attorney-General [1996] 3 NZLR 140, at p 160. The formulationof government policy preparatory to the introduction of legislation is not to befettered by judicial review. The position can be no different merely becausegovernment or Crown actions pursuant to legislation, when passed, would becontrary to law without that legislation.[95] Pausing there, it seems to us that the disputed decisions in this case are clearlywithin a category that do not affect the justiciable rights of any person or have thepotential to do so. It will only be legislation when it is enacted that could have anypossible effect on Ngāti Whātua Ōrākei. While the expression "formulation of41 At [12].government policy preparatory to the introduction of legislation" may not aptly beapplied to the disputed decisions, that is only because the decisions represent a phasecloser to legislative implementation than would be the case with policy formulation.But the disputed decisions are squarely within the statement in Sealord that Ministersof the Crown must remain free to determine, according to their view of the publicinterest, what they will invite Parliament to consider.[96] It is also instructive to see how the Court in Milroy dealt with an argumentpresented by the appellant that the closer to the introduction of legislation the morereluctant the courts would be to intervene, accepting that reluctance should be greaterwhere the matter challenged is of high policy or constitutional content.42That approach was dismissed as unacceptably vague, and not supported by authority.It was said that it would blur the boundaries between the role of the Executive and thatof the courts, inviting "curial review of research, advice and opinion for which noobjective justiciable guidelines are available".43[97] Gault P then referred to this Court's judgment in Curtis v Minister of Defencein which it was said:44[27] A non-justiciable issue is one in respect of which there is nosatisfactory legal yardstick by which the issue can be resolved. That situationwill often arise in cases into which it is also constitutionally inappropriate forthe Courts to embark.[98] Gault P continued:45[17] The established test is not by reference to remoteness in time orevolution but by function. The formulation of legislative proposals is part ofthe business of government.[18] The importance of the process for addressing claims in respect ofbreaches of the Treaty is fully recognised. Where that involves the exerciseby the Executive of statutory or prerogative powers, lawfulness can bechallenged on established grounds for judicial review. But where the actionchallenged does not itself affect the rights of any persons and is undertaken inthe course of policy formulation preparatory to the introduction to Parliamentof legislation, the Courts will not intervene. Proposed legislative conduct ofthe Crown said to depart from a previous stance and to be inconsistent with42 At [15].43 At [16].44 Curtis v Minister of Defence [2002] 2 NZLR 744 (CA).45 Milroy v Attorney-General, above n 18, at [17]–[18].Treaty rights may be within the jurisdiction of the Waitangi Tribunal and maybe the subject of representations to the Select Committees of Parliament. But,as Goddard J said, the Courts cannot help.[99] Similar issues arose in New Zealand Maori Council v Attorney-General.46In that case, again, there was a settlement deed in which the Crown undertook tointroduce legislation to give effect to the settlement described and other iwi groupssought declaration that a proposed transfer of Crown forest land was inconsistent witha fiduciary duty of the Crown, and in breach of contractual obligations and the Crown'sstatutory duties. The settlement was conditional on the legislation coming into force,other than the obligation assumed by the Crown to introduce the settlement legislation.This Court followed and applied its earlier decisions in Sealord and Milroy.Writing for the Court, O'Regan J said:[60] If the legislation is passed, therefore, what is proposed in Part 12 willbe lawful. If the legislation is not passed, what is proposed in Part 12 will nothappen. Either way, there is no action or proposed action of the Crown, otherthan the introduction of the legislation, which could be the subject of adeclaration. And as both the Sealords case and Milroy establish, the courtswill not grant relief which interferes or impacts on actions of the Executivepreparatory to the introduction of a Bill to Parliament, because to do so wouldbe to intrude into the domain of Parliament. For these reasons we decline tomake the declaration set out at para [9](b) above.[100] We see these authorities as presenting a fatal obstacle to Ngāti Whātua Ōrākei'sclaim. Mr Hodder seeks to distinguish them on the basis that there is in fact a"yardstick" that could be applied for the purposes of reviewing the disputed decisions,namely the rights asserted by Ngāti Whātua in the statement of claim if they wereupheld. But the answer to that proposition is simply that the proposal is not that theproperties be transferred, but that there be legislation authorising that to occur.We consider it would be wrong in principle for a court to declare unlawful an outcomeintended to be secured only if authorised by Parliament.[101] While the declaratory relief is not couched expressly in such terms, addedtogether, the declarations sought would have that effect. At the hearing of the appeal,Mr Hodder offered proposed revised declarations that he suggested would be betterthan those contained in the amended statement of claim. However, we can underline46 New Zealand Maori Council v Attorney-General [2007] NZCA 269, [2008] 1 NZLR 318.the point just made by referring to one of the proposed new declarations, which readsas follows: a declaration that it is inconsistent with the Crown's obligations under lawto Ngāti Whātua Ōrākei for the Crown to consider and/or take steps to developany proposal to include any land within the 2006 RFR Land and the 1840Transfer Land in a proposed Treaty settlement with any iwi which does nothave ahi kā in respect of those lands unless such consideration and/or step isundertaken in accordance with Ngāti Whātua Ōrākei tikanga principles;[102] While that declaration would ostensibly look to the future, if made now in thecourse of a process already under way and with legislation intended to be introduced,it could only be read as a decision by the Court that the intended legislation to giveeffect to the disputed decisions would breach Ngāti Whātua Ōrākei's rights. We donot consider such a declaration could be made without breaching the establishedprinciple of non-interference by the courts in parliamentary proceedings. The samecan be said of the general declarations sought.[103] There is a fundamental difference between this case where a proceeding hasbeen brought prior to Parliament enacting legislation and a case such asAttorney-General v Taylor where issues are raised subsequent to enactment.47This distinction is noted in Sealord where the Court said: "As held in Eastgate, theproper time for challenging an Act of a representative legislature, if there are anyrelevant limitations, is after the enactment."48[104] Mr Hodder also sought to distinguish between the acts of the legislature andthose of the Crown suggesting that in a case such as this the latter could be the subjectof declarations without affecting the former. However, the reality is that the bulk ofParliament's work consists in responding to legislative initiatives taken by theExecutive. That is true in the field of Treaty negotiations, as in any other. The regularprocess now followed is that although the Crown enters into agreements with iwi,those agreements are made contingent on the enactment of legislation. As theobservations made in Sealord explain, it is not competent for the Crown to contractthat legislation will be passed. All that can be said is that the government agrees tointroduce legislation. And even then, such an undertaking would not be compellable47 Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24.48 Sealord, above n 18, at 308.in the sense that it could be enforced by order of the Court.49 In the present case, thearrangements agreed in respect of the disputed decisions is for legislation to beintroduced that would give authority for the land to be referred. But if that does notoccur, or the legislation is introduced but not enacted, the disputed properties will notbe transferred. In the meantime, declarations such as those sought by Ngāti WhātuaŌrākei would inevitably and directly relate to the development of legislativeproposals. That would be their only point: in the absence of legislation they wouldotherwise be an empty gesture declaring unlawful something that was not intended tohappen.[105] Putting this another way, there is no proposal that will affect Ngāti WhātuaŌrākei's rights other than a legislative one. This is territory that the courts will notenter in accordance with the principle of non-interference.[106] These conclusions apply regardless of the source of the unlawfulness alleged,whether it be a breach of the Treaty, of Ngāti Whātua's mana whenua, tikanga andcustomary rights, the honour of the Crown, or rights derived from the United NationsDeclaration of the Rights of Indigenous Peoples. They mean the claim was properlystruck out. This is not to make the Crown the "sole arbiter of its own justice", a phraseborrowed from a now-rejected colonial jurisprudence mentioned in Port NicholsonBlock Settlement Trust v Attorney-General.50 In that case, declarations had beensought focusing on an alleged inconsistency between one Treaty settlement deed andAct, and a different deed. Williams J found that the declaratory relief sought in thatcase did not cross the line of attempting to intervene in the legislative process.We have reached a different view in the circumstances of this case.[107] The result of this approach is to place these proposed Treaty settlements in thehands of Parliament. We accept as a matter of practicality that it is likely thatlegislation introduced into Parliament by the Minister implementing the disputeddecisions will be passed. But it would be inappropriate as a matter of principle for theCourt to proceed on the basis that that is a foregone conclusion, or that the49 New Zealand Maori Council v Attorney-General, above n 46, at [45], citing Rothmans of Pall Mall(NZ) Ltd v Attorney-General [1991] 2 NZLR 323 (HC).50 Port Nicholson Block Settlement Trust v The Attorney-General [2012] NZHC 3181 at [63], quotingfrom Wi Parata v The Bishop of Wellington (1878) 3 NZ JUR 73 (NS) 3 (SC) at 78.Parliamentary process is less than satisfactory. That would be speculative, andinappropriate. The legislative process offers scope for submissions and affords anopportunity for any proposed legislation to be referred to the Waitangi Tribunal for areport on whether any of the provisions are contrary to the principles of the Treaty.51Result[108] Marutūāhu's application to adduce further evidence is granted.[109] The appeal is dismissed.[110] Ngāti Whātua Ōrākei must pay each of the respondents costs for a standardappeal on a band A basis and usual disbursements. We certify for second counsel.Solicitors:Chapman Tripp, Wellington for AppellantCrown Law Office, Wellington for First RespondentMeredith Connell, Auckland for Second RespondentAtkins Holm Majurey Limited, Auckland for Third Respondent51 Treaty of Waitangi Act 1975, s 8.