GREEN v TE RÖPU WHAKAMANA I TE TIRITI O WAITANGI (WAITANGI TRIBUNAL) [2014] NZHC 723

GREEN v TE RÖPU WHAKAMANA I TE TIRITI O WAITANGI (WAITANGI TRIBUNAL) [2014] NZHC 723 [9 April 2014]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2013-485-2862[2014] NZHC 723BETWEEN LIANE GREENPlaintiffAND TE RÖPU WHAKAMANA I TE TIRITI O WAITANGI (WAITANGI TRIBUNAL)First RespondentTHE ATTORNEY-GENERALSecond RespondentHearing: 12 December 2013Counsel: K S Feint and M S Smith for ApplicantNo appearance for First RespondentV L Hardy and M E G Gaudin for Second RespondentM I Chen for IntervenerJudgment: 9 April 2014RESERVED JUDGMENT OF MACKENZIE JI direct that the delivery time of this judgment is11 am on the 9th day of April 2014.Solicitors: K Feint and M Smith, Thorndon Chambers, Wellington, for Applicant.Crown Law, Wellington, for First and Second Respondent.Chen Palmer, Wellington, for Intervener.Background[1] This is an application for judicial review of a decision of the Waitangi Tribunal (the Tribunal) directing that the applicant's counsel in proceedings before the Tribunal was not entitled to cross-examine two English speaking witnesses in te reo Māori. The applicant submits that the Tribunal's decision is wrong in law in that it does not comply with s 4 of the Māori Language Act 1987 (the Act). The applicant is supported in that contention by both the second respondent, the Attorney-General, and the intervener, Te Taura Whiri I te reo Māori. The first respondent, the Tribunal, abides the decision of the Court.[2] The issue arose in the course of the Tribunal's hearings of the Te Rohe Pōtae District Inquiry (Wai 898). On 12 December 2012, the applicant's counsel Mr Hope began to cross-examine two witnesses, Dr Christoffel and Dr Robinson, who had presented a report entitled Aspects of Rohe Pōtae Political Engagement 1886 to 1913. Both are non-Māori and do not profess to have any competency in te reoMāori. Apart from Mr Hope, all counsel who questioned them asked questions in English. When Mr Hope began his cross-examination of Dr Christoffel and Dr Robinson he did so in te reo Māori without any forewarning to the presiding officer, Judge Ambler. After a brief exchange with Mr Hope, Judge Ambler directed him to ask questions in English. Mr Hope responded, in te reo Māori, that he had no questions. Judge Ambler was asked to give a ruling in writing. He delivered a detailed and comprehensive written ruling on 7 February 2013.1The rulingIt is that ruling that forms the basis of the argument on the present challenge.[3] In his ruling, Judge Ambler described his reasons in these terms:3.2 My reasons for directing Mr Hope to cross-examine Dr Christoffel and Dr Robinson in English were threefold.3.3 First, Mr Hope had not sought leave to cross-examine in te reoMāori (or to cross-examine at all) in breach of my direction of 27 August 2012. He had otherwise not notified me during the hearing of his intention to do so. In particular, he had not provided any advance notice of the basis, rationale or logistics of his intended approach.1 Waitangi Tribunal Te Rohe Pōtae District Inquiry (Wai 898, 7 February 2013).Counsel are expected to raise such matters with the Presiding Officer prior to hearings commencing so as to avoid such procedural matters taking up the parties' hearing time.3.4 Second, there appeared to be no obvious purpose or utility in Mr Hope asking questions of Dr Christoffel and Dr Robinson in te reoMāori. I understand that Mr Hope, Dr Christoffel and Dr Robinson speak English as their first language. Certainly, I understand that the two professional witnesses do not speak te reo Māori to any level of competency. The questions would have to be translated into English before the witnesses could engage with them. Mr Hope's intended approach seemed to me to simply be an exercise in speaking te reoMāori for the sake of it. That is, it introduces an artificiality to the cross-examination process without any substantive benefit.3.5 The more fundamental issue for me was, how would Mr Hope's asking questions in te reo Māori assist or enhance the Tribunal's understanding of Dr Christoffel and Dr Robinson's evidence? My view at the time was (and remains) that this approach does not assist or enhance the Tribunal's understanding of the evidence. Indeed, Mr Hope's subsequent submissions make clear that he asserts an "absolute right" as counsel to ask the questions in te reo Māoriwithout regard to the utility or efficacy of that approach.3.6 I emphasise that my views relate only to Mr Hope's proposed cross- examination in te reo Māori of witnesses who do not speak the language. This is quite different from cross-examination in te reoMāori of speakers of the language - a prospect I have no difficulty with and encourage, provided the person asking the questions is competent in the language. In that situation, asking questions in te reo Māori is entirely appropriate and beneficial to the Tribunal's task as the witness is more comfortable with the questioning and more likely to give a thorough and considered response. None of that applies to Mr Hope's situation.3.7 Third, Mr Hope's approach would add a further layer to the process of cross-examination that would necessarily consume additional hearing time. While his proposed three questions may have limited consequences for the immediate hearing timetable, if Mr Hope's approach is expanded across the inquiry hearings its impact will be multiplied many times over.3.8 Once again, I do not have the same concern over the impact on the hearing timetable of cross-examination in te reo Māori of witnesses who speak te reo Māori. In that situation the witnesses do not depend on the interpreter's translation to comprehend the question, They can answer the question immediately as it is asked, without a break in the flow of the proceedings, and the timetable is not adversely affected, The interpretation is ostensibly for the benefit of the Tribunal, counsel and the parties, and not for the witnesses.3.9 However, in the approach Mr Hope proposed to take the witnesses depend entirely upon the translation to comprehend the question. There will inevitably be a delay in question, translation and answer, as is the case in the ordinary courts when questions are translatedfrom English into the first language of the witnesses. In addition, as Presiding Officer I (with the assistance of my fellow panel members Professors Mead and Temara) must monitor the translation to ensure that it is accurate before the witnesses can reply. That will also take up additional hearing time.3.10 Further exacerbating the impact on the timetable was the problem with the standard of interpretation provided by the interpreter. Mr Hope's subsequent submissions explain that he had in fact approached the interpreter and provided him with translations of his questions. That is not something that Mr Hope had brought to my attention as he had not sought leave to cross-examine prior to the hearing. But that does not necessarily alleviate the problem as I must still monitor Mr Hope's translation.[4] Judge Ambler in his ruling then considered whether he should review his direction given on 12 December 2012, in light of the submissions that Mr Hope made following the ruling, and considered that it was in the interests of justice that he consider those submissions and review his direction.[5] Judge Ambler then posed the question "does Mr Hope have an "absolute right" to cross-examine in te reo Māori?". He referred to ss 3 and 4 of the Act, and to the status of the Tribunal as a commission of inquiry, pursuant to the Treaty of Waitangi Act 1975. He noted the specific provision in cl 6(2) of sch 2 of that Act which provides that witnesses may give their evidence in te reo Māori. He also noted that counsel do not have an automatic right to appear before the Tribunal.[6] Judge Ambler then considered the case law on the Tribunal's procedures. He noted that Courts have not directly addressed the right of counsel appearing in the Tribunal to cross-examine in te reo Māori witnesses who do not speak te reo Māori. He referred to a number of decisions which address aspects of the Tribunal's procedures.22 Hemi v Te Runanga o Ngai Tahu [2002] 2 NZLR 179 (CA); Tangaere v Waitangi Tribunal HC Wellington CIV-2008-485-1177, 19 December 2008; Attorney-General v Mair [2009] NZCA 625; Donnelly v Waitangi Tribunal HC Wellington CIV-2009-485-2614, 1 March 2010; Koia v Waitangi Tribunal HC Wellington CIV-2010-485-1519, 22 February 2011; Haronga v Waitangi Tribunal [2011] NZSC 53, [2012] 2 NZLR 53.He noted that the Courts have emphasised the specialist nature of the Tribunal and the need for it to regulate its own procedures and proceedings within its unique context.[7] Judge Ambler then in his discussion made the following points, which I briefly summarise.(a) He accepted that the authorities speak of the right to use te reo Māoriin criminal proceedings in terms of an absolute right, but did not accept that such an absolute right of counsel translates in the setting of the Tribunal, because its circumstances and the constraints of its inquiry process militate against such an absolute application of theMāori Language Act.(b) He noted that the right to speak te reo Māori appears to be an unfettered right to use the language in legal proceedings. However, he says that counsel cannot be said to have such an unfettered right in the Tribunal in relation to the cross-examination of witnesses, because counsel do not have an absolute right of audience in the Tribunal and do not have an absolute right to cross-examine witnesses. Leave of the Tribunal is required in both respects, and may be granted on terms.(c) The qualified right of audience reflects that the Treaty of Waitangi Act promotes a less legalistic forum in which claims can be heard and that the Tribunal's power to control appearances by counsel and its overall procedures reflect the constraints on the Tribunal's time and resources, so the exercise of controlling the hearing process has become even more critical. He said that extends to the manner in which counsel cross-examine, and in his view, even as far as the use of te reo Māori by counsel.(d) He distinguished the cases dealing with the use of te reo Māori in the criminal jurisdiction by noting that a defendant in that jurisdiction has an automatic right to be represented by counsel, that the issue of multiple parties does not arise to the same extent as before the Tribunal, and the length of the hearing is not dictated by artificial time constraints. He regarded the point about time constraints as critical.Discussion[8] Two separate but related issues need to be addressed:(a) the right to choose the language used in participating in proceedings before the Tribunal; and(b) the conditions which may be imposed by the Tribunal to limit or prescribe the extent and mode of participation in such proceedings.[9] On the first question the law is clear. Sections 3 and 4 of the Māori Language Act 1987 provide as follows:3 Māori language to be an official language of New ZealandThe Māori language is hereby declared to be an official language of New Zealand.4 Right to speak Māori in legal proceedings(1) In any legal proceedings, the following persons may speakMāori, whether or not they are able to understand or communicate in English or any other language:(a) any member of the court, tribunal, or other body before which the proceedings are being conducted:(b) any party or witness:(c) any counsel:(d) any other person with leave of the presiding officer.(2) The right conferred by subsection (1) of this section to speakMāori does not—(a) entitle any person referred to in that subsection to insist on being addressed or answered in Māori; or(b) entitle any such person other than the presiding officer to require that the proceedings or any part of them be recorded in Māori.(3) Where any person intends to speak Māori in any legal proceedings, the presiding officer shall ensure that a competent interpreter is available.(4) Where, in any proceedings, any question arises as to the accuracy of any interpreting from Māori into English orfrom English into Māori, the question shall be determined by the presiding officer in such manner as the presiding officer thinks fit.(5) Rules of court or other appropriate rules of procedure may be made requiring any person intending to speak Māori in any legal proceedings to give reasonable notice of that intention, and generally regulating the procedure to be followed where Māori is, or is to be, spoken in such proceedings.(6) Any such rules of court or other appropriate rules of procedure may make failure to give the required notice a relevant consideration in relation to an award of costs, but no person shall be denied the right to speak Māori in any legal proceedings because of any such failure.[10] Those provisions are to be given an interpretation which best accords with fulfilling the purposes of the Act. The long title to the Act notes that one of its purposes is to confer the right to speak Māori in certain legal proceedings. The recital to the Act records that in the Treaty of Waitangi the Crown confirmed and guaranteed to the Māori people, among other things, all their taonga, and that theMāori language is one such taonga.[11] Section 4 is clear. The persons listed in s 4(1) may speak Māori in any legal proceedings, whether or not they are able to understand or communicate in English. Proceedings before the Tribunal are legal proceedings to which s 4 applies. The Tribunal is named in sch 1 of the Act, and so proceedings before it fall within paragraph (a) of the definition of legal proceedings in s 2.[12] The answer to the first question as I have posed it is therefore clear. Counsel appearing in proceedings before the Tribunal may speak Māori, whether or not they are able to understand or communicate in English. It is not a requirement that the person cross-examined is able to understand te reo Māori.[13] The second question as I have framed it at [8] is concerned with the ability of the Tribunal to limit the extent to which a party or parties may participate in the hearing and the conditions which may be imposed by the Tribunal to limit or define the extent of oral participation. Many of the practical considerations to which Judge Ambler referred in support of his decision relate to that question.[14] As Judge Ambler noted, the Tribunal has broad powers to regulate its procedure. The Courts have recognised that considerable latitude is to be accorded to the Tribunal on matters of procedure.3[15] Judge Ambler described the difficulties which the Tribunal faces in these terms:47.30 An important distinction must be drawn between the criminal jurisdiction (in which the three judgments that Mr Hope relies on were decided) and the Tribunal's jurisdiction. In the criminal jurisdiction an accused or defendant has an automatic right to be represented by counsel; the courts rarely have to grapple with multiple parties (and certainly nothing like 276 claims/claimant groups); and the length of the hearing is not dictated by artificial time constraints driven by fiscal, resource and logistical factors (as is the case in the Tribunal).7.31 This last point is critical. As the discussions in the three judgments cited by Mr Hope illustrate, where an accused or defendant asserts a right to use te reo Māori (and, for that matter, the right of their counsel to do so) the Court must accommodate that election. It has no choice. Consequently, the trial or hearing must take as long as is required. The judge has no choice. That is the "luxury" of hearing time that the criminal jurisdiction provides to its parties.7.32 But the Tribunal does not have the same luxury of hearing time. As I have explained, this Tribunal is tasked with hearing 276 claims, numerous professional and lay witnesses, and submissions of counsel over a very compressed hearing programme of 14 weeks. Claimants are acutely aware of the pressures on the hearing programme and have been arranging their presentations to suit. Counsel should also be alive to these pressures.3.33. One of my functions as Presiding Officer is to manage the hearing program and hearings as efficiently as is possible to ensure that the claimants and the Crown are heard in a manner that is consistent with the interests of justice. My powers to ensure that happens are necessarily broad to reflect the multiplicity of interests and factors that need to be juggled. The TWA expressly does not create an absolute entitlement to hearings or to representation by counsel or to the manner in which hearings are conducted. In a perfect environment all claimants and witnesses would have the time they needed to present their evidence as they see fit. But they must all modify their approach to fit within the constraints of the inquiry. Counsel must do the same.3 Attorney-General v Mair, above n 2; Donnelly v Waitangi Tribunal, above n 2.4 Waitangi Tribunal Te Rohe Pótae District Inquiry (Wai 898, 7 February 2013) above n 1.[16] In a criminal trial, where a defendant or counsel exercises his or her right to use te reo Māori, the defendant's right to a fair trial will ordinarily mean that the time taken in the hearing will be longer. The time taken in the trial must necessarily accommodate the need for translation. The defendant's right to a fair trial must take precedence over considerations of time, cost and convenience.5[17] Proceedings before the Tribunal are governed by different principles and constraints than those applying to a Court in criminal proceedings. The extent of the Tribunal's caseload, and the constraints within which it operates, necessitate the exercise of its powers to impose limits on the extent of participation by parties, which could not be imposed in a criminal trial. Parties do not have an open ended or unlimited timeframe within which to present their case. The time limits which the Tribunal imposes apply to the parties who elect to speak English, where no translation is necessary. Those limits do not cease to apply to a person who exercises the right to speak Māori, in circumstances where translation is necessary. The time available to that person will not necessarily be extended by the extra time needed for translation.[18] Counsel in this case expressed doubts as to the extent to which the need for translation in this case would have extended the time taken. Mr Hope says in his affidavit that he anticipated that his questions and answers, including time for interpretation, would take approximately 10 minutes. It is not clear whether or not he made that known to Judge Ambler before the hearing. The transcript of the hearing shows that Mr Hope began by saying he had three questions. There is no record of any discussion about how long might be required. It is not necessary for me to venture into that issue. If it would have taken longer for Mr Hope to question the two witnesses in Māori than it would have done if he had put the same questions in English, his right to speak Māori did not entitle him to that extra time, if that extra time conflicted with a direction properly given by the Tribunal as to the time available.[19] In a situation where counsel or a party have limited time in which to make submissions or to question witnesses, counsel or the party must make a judgment as5 R v Hohua (1990) 6 CRNZ 123.to how that time is best used. The coat must be cut to suit the cloth. The case must be tailored to fit the time available for its presentation. If the consequence of exercising the right to speak Māori will be that less questions can be asked in the time available, then it is for counsel, and the party counsel represents, to decide what will be the best use of the limited time available. The Tribunal is not bound to make additional time available if to do so would disrupt its hearing programme.[20] The ability of counsel to cross-examine witnesses before the Tribunal is not unfettered. Judge Ambler noted in his ruling that he had given a direction in this inquiry in August 2012 that counsel must seek leave to cross-examine and provide time estimates three weeks prior to the hearing. He records that Mr Hope never sought leave to cross-examine these two witnesses. It would, on the face of it, have been open to Judge Ambler to refuse leave to cross-examine. I express no view on that. I make this observation to make clear that it does not follow from the fact that it was not open to the Judge to require that questions be asked in English, that Mr Hope or the party he represented were improperly deprived of the opportunity to cross-examine the two witnesses. That is not a question which is before me. It was not open to Judge Ambler, in allowing Mr Hope to cross-examine without having sought leave, to impose a condition that Mr Hope ask questions in English. I need not consider what other conditions might have been imposed by the Tribunal in the exercise of its powers to regulate its procedure.Relief[21] The relief sought by the applicant is an order setting aside Judge Ambler's ruling, and a declaration that persons appearing before the Tribunal have a right to speak te reo Māori pursuant to s 4 of the Act. Relief is discretionary. I do not consider that any formal relief is appropriate.[22] The right to speak in te reo Māori is clear under s 4. No declaration from this Court is needed to clarify or affirm that right.[23] Judge Ambler's ruling was given in response to a request for written reasons to be given for the earlier oral ruling. The hearing before the Tribunal proceeded in accordance with that oral ruling. The parties did not in argument before me addressthe practical implications for the conduct of the inquiry of an order setting aside the ruling. As I have noted, it does not follow, from my conclusion that it was not open to the Tribunal to require cross-examination in English, that cross-examination was wrongly refused. For these reasons, I consider that an order setting aside the decision is not appropriate.[24] Costs are reserved. The parties may submit memoranda._________________________A D MacKenzie J