FLAVELL v WAITANGI TRIBUNAL [2015] NZHC 1907

FLAVELL v WAITANGI TRIBUNAL [2015] NZHC 1907

Court held the Tribunal erred in law by effectively treating binding recommendations as a remedy of last resort (imposing an additional onus) and by failing to consider making binding recommendations in respect of parts only of the lands sought; other alleged errors were dismissed; relief was discretionary and the Court deferred orders to allow applicant to elect whether to seek reconsideration by the Tribunal in light of this judgment.

Citation
[2015] NZHC 1907
Parties
Applicant: Timoti Flavell; First Respondent: Waitangi Tribunal; Second Respondent: The Attorney-General
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 August 2015
Procedural Posture
Judicial Review of Waitangi Tribunal Remedies Decision / Final Judgment (12 August 2015)
Outcome
Application partly upheld: court found two legal errors by the Tribunal (treating binding recommendations as last resort and failure to consider partial resumptions); other grounds dismissed; relief deferred and reconsideration left to applicant's election.
Legal Topics
Binding Recommendations, Resumption of Crown Land, Waitangi Tribunal Jurisdiction, Crown Settlements, Remedies and Relief, Procedural Discretion
Treaty of Waitangi Law Administrative Law Public Law Land Law Judicial Review Binding Recommendations Resumption of Crown Land Waitangi Tribunal Jurisdiction +3 more

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Parties

Timoti Flavell

Applicant

Waitangi Tribunal

First Respondent

The Attorney-General

Second Respondent

Procedural Posture

Judicial Review of Waitangi Tribunal Remedies Decision / Final Judgment (12 August 2015)

Legal Issues

  1. 1 Whether the Waitangi Tribunal treated power to make binding recommendations as a remedy of last resort
  2. 2 Whether the Tribunal was obliged to determine competing claims to resumable properties
  3. 3 Whether the Tribunal failed to consider binding recommendations for parts only of the lands sought

Ratio Decidendi

Court held the Tribunal erred in law by effectively treating binding recommendations as a remedy of last resort (imposing an additional onus) and by failing to consider making binding recommendations in respect of parts only of the lands sought; other alleged errors were dismissed; relief was discretionary and the Court deferred orders to allow applicant to elect whether to seek reconsideration by the Tribunal in light of this judgment.

Court Disposition

Application partly upheld: court found two legal errors by the Tribunal (treating binding recommendations as last resort and failure to consider partial resumptions); other grounds dismissed; relief deferred and reconsideration left to applicant's election.

Orders

  • Court finds the Waitangi Tribunal made errors of law in (a) treating binding recommendations as a remedy of last resort and (b) failing to consider binding recommendations for parts of the lands sought
  • Relief is deferred for 28 days for the applicant to file a memorandum confirming whether it seeks orders setting aside those parts of the Tribunal's report relating to binding recommendations and directing reconsideration