PORT NICHOLSON BLOCK SETTLEMENT TRUST OF WELLINGTON, GOVERNANCE ENTITY v THE ATTORNEY-GENERAL HC WN CIV-2012-485-1837

PORT NICHOLSON BLOCK SETTLEMENT TRUST OF WELLINGTON, GOVERNANCE ENTITY v THE ATTORNEY-GENERAL HC WN CIV-2012-485-1837 [29 August 2012]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-485-1837[2012] NZHC 2213UNDER the Judicature Amendment Act and Part 30of the High Court RulesAND UNDER the Contractual Remedies Act 1979IN THE MATTER OF the Port Nicholson Block (Taranaki Whānuiki Te Upoko o Te Ika) Claims SettlementAct 2009BETWEEN PORT NICHOLSON BLOCKSETTLEMENT TRUST OFWELLINGTON, GOVERNANCEENTITYPlaintiffAND THE ATTORNEY-GENERALDefendantHearing: 29 August 2012Counsel: P D Green and M Doogan for PlaintiffP Radich and H Carrad for DefendantB Ross and B Vertongen for Ngati ToaJudgment: 29 August 2012JUDGMENT OF MILLER J[1] This judgment responds to an ex parte application for interim relief which was filed late this afternoon and heard almost immediately by teleconference on aPickwick basis. The plaintiff ("PNBST") sought an interim declaration that wouldstop the Crown, for the time being, from initialling a deed of settlement with Ngāti Toa. The deed is to be initialled by both parties at a ceremony tomorrow morning.[2] The judgment is necessarily short. It assumes some familiarity with the background, notably the Port Nicholson Block (Taranaki Whānui ki Te Upoko o Te Ika) Claims Settlement Act 2009 ("the Taranaki Whānui settlement"), the Ngāti Toa negotiations, and the Waitangi Tribunal Port Nicholson Block Urgency Report 2012("the Tribunal Report").[3] In short, PNBST says that in the Taranaki Whānui settlement, which was the first of a number of overlapping settlements, Taranaki Whānui compromised their claim to the Port Nicholson block on the basis that no other claimant would be granted cultural redress within that part of the Port Nicholson block over which the Crown had acknowledged that Taranaki Whānui hold customary rights of an exclusive nature. Taranaki Whānui originally laid claim to the entire Port Nicholson block but that was previously rejected by the Tribunal, and PNBST (an entity set up to administer the Taranaki Whānui settlement) now says that the area of exclusivity covers an area within what has been variously described as 1.5 or 2 miles of Wellington harbour.[4] The Tribunal accepted that OTS representatives had given Taranaki Whānui an undertaking the substance of which was that no other claimant would be offeredcommercial buildings in the Wellington CBD. It recommended that the Crown'soffer to Ngāti Toa be amended accordingly.[5] Mr Green argued that the Tribunal chose to confine its decision to the scope of the OTS undertaking. That may be so. However, the Tribunal conducted a three-day hearing and it cannot be said to have accepted PNBST's claim to exclusivityover a wider area. It did find, among other things, that Taranaki Whānui knew before signing their deed of settlement that the Crown intended to offer cultural redress to Ngāti Toa in the Wellington CBD.[6] The Crown says that the Tribunal's recommendations were accepted. It hadproposed to offer Ngāti Toa Wellington CBD properties, but none are now included in the proposed settlement. It has, however, offered Ngāti Toa Taputeranga Island (off Island Bay) and statutory recognition of a presence on Te Awakairangi (the Hutt River).[7] This PNBST considers a cultural affront, saying that these places lie within its area of exclusivity.[8] Mr Green made it clear that PNBST does not seek to change the Taranaki Whānui settlement. Its objective is that of showing that the settlement presumed that no one else would be granted rights to its area of exclusivity. The relief ultimately sought comprises declarations and orders prohibiting the Crown from offering Ngāti Toa cultural redress over that part of the Port Nicholson block to which the Crown had acknowledged that Taranaki Whānui hold customary rights of an exclusive nature.[9] The Crown says that the Court has no jurisdiction to intervene in judicialreview at the "initialling" stage of the settlement process, which amounts to policyformation preparatory to legislation or a political compact or the exercise of a Crown prerogative. I acknowledge the authorities cited and expressly record Mr Radich'ssubmission that initialling does not strictly bind the Crown, but express no view about whether the Court may intervene directly in the Ngāti Toa settlement. For present purposes it is enough that counsel agreed the Court could make a declaration about the scope of the Taranaki Whānui settlement, which is reflected in legislation. Such remedy differs from the prayer for relief but it would be of considerable value to PNBST, since it can be assumed that the Crown would seek to give effect to such declaration so long as it remained free to revisit the content of the Ngāti Toa settlement.[10] That being so, I accept that it is unnecessary to restrain the initialling toprotect PNBST's position. That is the decisive consideration for present purposes. Further, I express the necessarily tentative view that the claim does not presently appear, having regard to the Tribunal Report, to be especially strong.[11] It is necessary that the claim be got on for hearing before the Ngāti Toa settlement becomes irrevocable. To that end I have directed that counsel liaise about a timetable and appear before me tomorrow afternoon to fix it.[12] I record that at the hearing Ngāti Toa were added as a defendant on their own application.Miller JSolicitors:Bisson Moss, Napier for PlaintiffCrown Law, Wellington for Defendant