TE RUNANGA O NGĀTI MANAWA v CNI IWI HOLDINGS LIMITED [2013] NZHC 1398

TE RUNANGA O NGĀTI MANAWA v CNI IWI HOLDINGS LIMITED [2013] NZHC 1398 [12 June 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2011-485-1233[2013] NZHC 1398BETWEEN TE RUNANGA O NGĀTI MANAWAPlaintiffAND CNI IWI HOLDINGS LIMITEDSecond DefendantTE KŌMITI NUI O NGĀTI WHAKAUETRUSTThird DefendantTŪHOE ESTABLISHMENT TRUSTFourth DefendantTE MANA O NGĀTI RANGITIHITRUSTFifth DefendantTŪWHARETOA SETTLEMENT TRUSTSixth DefendantRAUKAWA SETTLEMENT TRUSTSeventh DefendantTE PŪMAUTANGA O TE ARAWATRUSTEighth DefendantTE RUNANGA O NGĀTI WHARENinth DefendantHearing: 21 May 2013Counsel: K L-A Ertel and R N Zwaan for PlaintiffR B D Drummond for Second DefendantJ P Kahukiwa for Third Defendant (filing written submissions)F M R Cooke QC for Fourth, Fifth, Sixth & SeventhDefendantsJ B M Smith and D H Stone for Eighth DefendantJ P Ferguson for Ninth DefendantJudgment: 12 June 2013JUDGMENT AND DIRECTIONS OF WILLIAMS JIn accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2.00pm on the 12th June 2013.[1] In a judgment issued on 2 November 2011, I made orders staying this proceeding for four months. I advised:1If an extension [of the 2008 Settlement Act dispute resolution timeframe] is agreed in that time, the proceeding should be withdrawn or, in the absence of such withdrawal, further strike-out applications may be entertained. If agreement is not reached, further directions will be required to set the litigation on a proper course, fully and properly pleaded.[2] An extension was indeed agreed and the time within which the alternative dispute resolution process as contained in the legislation was to be completed was extended until 1 July this year. The parties are agreed that there is no prospect whatever of the necessary process being completed and allocations made by that new deadline.[3] Much of the intervening period has been taken up in the CNI iwi attempting to achieve a negotiated settlement of cross-claims, but to date at least, this has produced limited success. The plaintiff has now withdrawn from such discussions and wants an adjudication as set out in the legislation. This process is dubbed the mana whenua adjudication process. Given that such a process cannot be constructed and completed in the time available prior to 1 July this year, the plaintiff now seeks leave to proceed with the current claim in this court together with timetabling directions. Once bitten twice shy.[4] The second defendant, CNI Iwi Holdings Limited, opposes and asks instead that the stay be extended. The second defendant is joined by the fourth, fifth, sixth and seventh defendants in that stance. The parties whose interests are most aligned with the plaintiff are the ninth defendant, the eighth defendant and perhaps the third1 Te Runanga o Ngati Manawa v The Attorney-General HC WN CIV-201-485-1233, 2 November 2011 at [56].defendant. These parties claim to represent the hapu with direct ancestral rights in the lion's share of the land.[5] The ninth defendant, Te Runanga o Ngāti Whare, shares some of the concernsbeing expressed by the plaintiff, but is firmly of the view that litigation is not to be preferred over negotiation and adjudication within the terms of the settlement. Theeighth defendant, Te Pūmautanga o Te Arawa, is keeping its power to dry. It toowould prefer to see the matter dealt with in accordance with the mana whenua adjudication process, but indicated through counsel that it wished to reserve its position with respect to the prospect of initiating its own proceedings if real progress toward a further extension and adjudication is not made.[6] Mr Smith argued that a proceeding in this court cannot be indefinitely stayed in any event and must be either struck-out or allowed to proceed. He submitted that limited interlocutory steps should be timetabled: a requirement, in the first instance at least, that the plaintiff replead its claim and the defendants file defences.Ngāti Whakaue's position was similar.[7] Mr Cooke QC for the opposing iwi parties simply argued that this proceeding was a waste of time. It was misconceived in law he said, and incapable of producing a result any better than that able to be produced within the settlement legislation dispute resolution procedures.[8] For the plaintiff, Ms Ertel's concerns related not just to the very limitedprogress made during the last extension period, but that various of the iwi parties (perhaps with CNI Iwi Holdings in support) have attempted to change the mana whenua adjudication rules so as to reduce the weight accorded to take tupuna and to introduce a population based criterion. She pointed out that "mana whenua" as defined in clause 4(2) of the Second Schedule to the 2008 Settlement Act was the only agreed basis upon which CNI forest land would be allocated. She says (essentially) that the larger neighbouring iwi with weaker ancestral rights are intent on avoiding an adjudicated outcome and so are doing all they can to delay because the current rules are likely to produce an outcome inconsistent with their interests.[9] The plaintiff points to a draft Action Plan for Mana Whenua Adjudication, a document appended to CNI Iwi Holdings' submissions. This document was put to all iwi at a hui on 7 May 2013 (except the plaintiff which had of course withdrawn entirely from the process). The draft included clause 4.4 as follows:The quantum principle should fairly be represented in the decision. All iwi have purchased the right and privilege for the adjudication process to occur. Similarly, the population of the iwi directly enabled settlement and the adjudication process to occur. (my emphasis)[10] The plaintiff says this idea is a direct departure from the mana whenua principle enshrined in the settlement. Size becomes relevant in the allocation of land for the first time. In response, Mr Drummond pointed to the terms of the relevant resolution passed at the 7 May hui and referred to in the draft minutes:In principle all MW PSGE Reps present today are comfortable with the draft action plan with the exception of the following sections: 2.3, 3.11, 4.2, 4.3and 4.4 which will require further iwi feedback and rewording. (my emphasis)[11] Mr Drummond (along with other counsel) also agreed that the rules for allocation as contained in Schedule 2 cannot be amended except with unanimity of iwi including the plaintiff.[12] One other point of background is worth noting. In October 2012, all eight PSGEs passed a resolution "to extend the timeframe to complete the mana whenuaprocess if the final allocation agreement cannot be completed by 1 July 2013." Forits part, the plaintiff said that its agreement to that resolution was conditional upon the iwi representative at the hui, Maurice Toetoe, taking the matter back to the iwi for confirmation. He deposed that, in the event, iwi confirmation was notforthcoming. That, it was suggested, invalidated Ngāti Manawa's conditional agreement.[13] That may well be, but there is a very subtle game of brinkmanship being played here on all sides in my perception.[14] Ngāti Manawa wholeheartedly supports a mana whenua adjudicationproceeding by agreement on an extended timeframe, provided the CNI iwi stick tothe original rules. There is, on the other side, it appears, a subtle attempt to amend them in a potentially significant way. Ngāti Manawa no doubt feels that it is caughtbetween a rock and a hard place.[15] It is in this broad context that Mr Smith for Te Pūmautanga o Te Arawaargues that leave should at least be given for small steps to be taken in this proceeding. He argues that such steps will not overly distract from attempts to extend time for the mana whenua adjudication process or, if time is indeed extended on agreed terms, then for the process itself.[16] Mr Cooke QC and Mr Drummond on the other hand argued that this proceeding distracted unnecessarily from the adjudication process, was conceptually flawed, and amounted to a waste of time and iwi money. Mr Cook pointedly noted that the only winners in this litigation would be the lawyers.[17] I strongly agree with the last point, at least as matters are currently positioned. Having reviewed the evidence and heard submissions, it seems to me there is ample hope that the mana whenua adjudication process timeframe will be extended by further agreement on terms acceptable to all eight iwi. Yet, as in theTūwhare poem, this "canoe [still] teeters on inconclusive reefs of argument". Wecannot yet know whether that will happen.[18] That being so, I agree with Mr Smith that steady progress forward in this current proceeding is now justified after a lengthy stand-down period.[19] There will be a direction that the plaintiff replead its claim by 8 July. And the defendants file amended defences by 5 August 2013. A further judicial conference may be called at the instigation of any party once the pleadings are completed.[20] Finally, a word or two of caution if I may. It will be important if the mana whenua adjudication process is pursued, that ample time is given for it to be completed. The first extension was always going to be insufficient to complete the job. The allocation of entitlements across such a large area of land will not be an easy or short process if all entitlements are contested.[21] Economy and expedition are of course important values in such a process but there must still be sufficient opportunity for all parties to put their evidence before the adjudicator and to make their arguments. Innovative tikanga based procedures can of course be adopted but the process must still be robust enough to withstand later challenge in the mainstream courts. Advice on this question from independent senior counsel may assist.[22] The product must also be able to withstand scrutiny. If report writers are to be employed to assist the panel, they will need to be very experienced. Good process and quality writers will tend to add to cost, but that is far preferable to having to start again if the process or product are not up to scratch.___________________________Williams J