REIHANA V CROWN ISLAND ADMINISTERING BODY AND ANOR CA CA193/04

REIHANA V CROWN ISLAND ADMINISTERING BODY AND ANOR CA CA193/04 4 November 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA193/04IN THE MATTER OF Judicature Amendment Act 1972 BETWEEN TONI COLIN REIHANA Appellant AND CROWN ISLAND ADMINISTERING BODY First Respondent AND TE RUNANGA O NGAI TAHU Second Respondent Hearing: 2 November 2005 Court: Hammond, O'Regan and Robertson JJ Counsel: Appellant in person R E Brown & L M Ritchie for Respondents Judgment: 4 November 2005JUDGMENT OF THE COURT The appeal is dismissed.____________________________________________________________________REASONS(Given by Robertson J)Introduction[1] This is an appeal from a decision of Keane J delivered in the High Court at Christchurch on 1 July 2004. Mr Reihana's application for judicial review was dismissed.Factual History[2] The matter in contention relates to the management of the Crown Titi Islands and the Beneficial Titi Islands. [3] These islands had been managed by the Rakiura Titi Committee (RTC) under the Titi (Muttonbird) Islands Regulations 1978. Regulations 7(1)(c) and (d) provide that:7 Meetings(1) Not later than the 23rd day of February in each year, the Director- General shall call an annual meeting of all interested Rakiura Maoris and their spouses. At each such meeting— (c) Subject to paragraph (d) of this subclause, those persons present at the meeting who are Rakiura Maoris or spouses of Rakiura Maoris shall elect from among themselves and any Rakiura Maori or spouse of a Rakiura Maori who has indicated to the meeting in writing his or her willingness to be elected, a committee (to be known as the Rakiura Titi Committee) of not more than 10 persons: (d) One of the 10 members of the Committee shall be a Rakiura Maori nominated by the Te Runanga o Ngai Tahu, and a majority of the Committee shall be Rakiura Maoris.[4] Under the Ngai Tahu Claims Settlement Act 1998 (the Act), the Crown transferred to Te Runanga o Ngai Tahu (Ngai Tahu's governing entity) the fee simple estate in the Crown Titi Islands (but not the Beneficial Titi Islands) which remained subject to the regime set out in the Regulations. [5] Under the Act, the Crown was to retain interim management of the Crown Titi Islands as if they were a conservation area (s 335 of the Act) until anAdministering Body (CIAB) had been elected and these persons had been appointed by the Minister of Conservation pursuant to Clause 13.6 of the Deed of Settlement between Ngai Tahu and the Crown. [6] Clause 13.6.3 provides:13.6.3 Rakiura Titi Committee And Te Runanga To Select Members Of The Administering BodyTe Runanga and the Crown agree that: (a) the Administering Body will consist of up to 10 members including up to nine Rakiura Maori selected by Rakiura Maori at the earlier of: (i) their first annual meeting held pursuant to Regulation 7(1) of the Regulations after the Settlement Date; or (ii) a meeting of Rakiura Maori called pursuant to Regulations 7(2) and 7(3) of the Regulations after the Settlement Date, and one Rakiura Maori selected by Te Runanga; and (b) within 10 Business Days of the meeting referred to in clause 13.6.3(a), the Rakiura Titi Committee and Te Runanga will notify the Minister of the persons selected under clause 13.6.3(a), and the Minister will then formally appoint those persons as the Administering Body by a notice in the New Zealand Gazette as soon as practicable after he or she is notified of the persons selected.[7] "Rakiura Maori" is defined in reg 2 of the 1978 Regulations as "a person who is a member of the Ngaitahu Tribe or Ngatimamoe Tribe and is a descendant of the original Maori owners of Stewart Island." It is also defined in s 333 of the Ngai Tahu Claims Settlement Act in almost identical terms: "any person who is a member of the Ngai Tahu tribe or Ngati Mamoe tribe and is a descendant of the original Maori owners of Rakiura/Stewart Island." [8] The applicant, Mr Reihana, is of Ngai Tahu and Ngati Mamoe descent. He is a Rakiura Maori for the purposes of both reg 7 of the 1978 Regulations and cl 13.6.3 of the Deed of Settlement. He is, therefore part of the body of people able to elect, and be elected to, both the RTC and CIAB. [9] Mr Reihana's basic complaint relates to the way in which cl 13.6.3 of the Deed of Settlement was carried into effect.[10] On 2 August 1998 and 4 October 1998, wananga (workshops) were called to discuss issues of the process to be adopted in forming the CIAB. In order to give Rakiura Maori notice of these wananga, newspaper advertisements were placed in the Southland Times. [11] On 22 November 1998, a further hui was called at which Rakiura Maori were asked to vote upon various resolutions which had arisen out of the wananga. Again, notice of this meeting had been given in the Southland Times. The minutes contain the following relevant statements:One committee or two? One committee. This is for general consensus after two wananga. Timing of election? A special meeting will be held to do this, prior to the Annual Permit Day hui, February 21, 1999.[12] As a result, the election of members of the CIAB took place at a meeting on 21 February 1999. Those present elected the nine members of the CIAB who were to be selected by Rakiura Maori under cl 13.6.3(a) of the Deed of Settlement and the same persons were also elected to the RTC. This had the effect that, while the two sets of islands were governed by two separate bodies, there was common membership of the bodies. It appears the CIAB members were elected for a five year term. Membership of the RTC is for a one year term. At this meeting also, a decision was taken to seek amendment to the 1978 Regulations in order to provide for a merging of the RTC and the CIAB into one body with control over both the Beneficial Titi Islands and the Crown Titi Islands. This proposal was not carried into effect. [13] There has been other litigation over this general matter, but it does not directly affect the issue before us. [14] On 16 January 2003, this proceeding was commenced by Mr Reihana. On 23 February 2003, at the annual hui required by the 1978 Regulations, Rakiura Maori decided that membership of the RTC and CIAB should be kept separate, and elected to the RTC a number of people who were not members of the CIAB.The interim judgment[15] Shortly after these proceedings were filed, the respondents applied for them to be struck out. An initial application to hear this interlocutory application was abandoned when Mr Reihana did not appear at the appointed time. Nonetheless Panckhurst J, who was due to hear the matter, issued an interim decision on 2 March 2003 based on the written submissions which had been filed. That Judge ordered the proceedings be struck out unless Mr Reihana filed an amended statement of claim within 20 days. Panckhurst J also pointed out various problems with the case. He noted in particular:A major difficulty is that the allegations advanced are obscure. They are clouded by language that is adjectival and conclusory. There is an absence of straight forward factual pleading of a kind necessary to isolate the issues (if they exist) and demonstrate the grounds of challenge by way of judicial review.[16] The Judge noted that the relief sought was discretionary and that the delay or futility might in any event defeat it. [17] Within the allotted time, Mr Reihana filed an amended Statement of Claim. This also contained many compound assertions of fact and submissions of law, but the respondents did not again seek to have the proceedings struck out.Keane J's decision[18] The substantive hearing was on 22 June 2004 with a reserved decision delivered on 1 July. The Judge began by considering the claims of Mr Reihana and the contents of the interim judgment of Panckhurst J. He recorded the relevant legislative framework including the provisions of the Act and clauses of the Deed of Settlement which had preceded it. [19] The Judge undertook a detailed analysis of the various aspects of Mr Reihana's complaint.[20] The first of these was that at the February 1999 meeting, the members of the RTC became members of the CIAB and therefore, "while the CIAB became responsible for the former Crown islands and the RTC remained responsible for the islands independently owned, in a practical sense, in terms of their members, the two merged". Mr Reihana contended this was unlawful. [21] The second aspect of the complaint is that while clause 13.6.3 of the Deed of Settlement envisaged that the February 1999 meeting should be the decisive event, all of the relevant decisions were taken at the wananga in August and October 1998, and the hui of 22 November 1998. [22] Mr Reihana's submission is that, as a result of this, Te Runanga o Ngai Tahu assumed control of the Beneficial Titi Islands as well as the Crown Titi Islands. He noted that the unsuccessful attempt to amend the 1978 Regulations to consolidate this position confirmed the assumption of, or at least an attempt to assume, control. Mr Reihana argued that in the result the mana of Ngati Mamoe and Ngai Tahu was eroded; in the case of Ngati Mamoe, because they had lost their land, in the case of Ngai Tahu, because they had acted dishonourably. [23] Keane J surveyed the evidence regarding the various meetings in 1998 and 1999. He concluded that the narrative demonstrated that the CIAB could not be accountable for the process by which its members were selected. Until the members were selected and notified in the Gazette, the CIAB had not in fact existed. [24] Furthermore, the Judge concluded that any claim against those responsible for the processes, that is Te Runanga o Ngai Tahu and the Department of Conservation, needed to be grounded in some breach of the legislation. The Judge held that the legislation, while envisaging that the CIAB would be selected in February 1999, did not prohibit the holding of prior gatherings. He went further and considered that the holding of these prior get-togethers made sense and noted that in any event the effective decision making took place in February 1999 at a meeting as envisaged.[25] Keane J considered that the most that Mr Reihana could say was that the decisions taken at the February 1999 meeting were pre-determined by the 1998 process but that did not, in any event, cause any distortion of the legislation. [26] The Judge noted that even if Mr Reihana had been right with regard to his complaints about process, the relief sought was now futile since the effect of the decision had now been spent in light of the February 2003 decision to ensure separate membership of the two bodies.Appellant's submissions[27] In addition to repeating the complaints he had made in the High Court, Mr Reihana now also complains about the way in which his application was treated by the High Court Judge. He says that the failure of Keane J to decide in his favour was influenced by the manner in which the Judge had conducted the hearing. Mr Reihana says Keane J asked a lengthy series of questions of him rather than permitting Mr Reihana to give his submissions uninterrupted and with his own emphasis. He submitted that this led to incorrect findings of fact and incorrect conclusions of law. [28] The nub of Mr Reihana's substantive argument for relief can be summarised in the following way. Te Runanga o Ngai Tahu's mandate under the Act was confined to facilitating the selection by Rakiura Maori of an administrative body to administer the islands vested in Te Runanga o Ngai Tahu under the Deed of Settlement (the Crown Titi Islands). The selection of the same people to the CIAB and the RTC necessarily exceeded that mandate because the common membership had the effect that the CIAB had control of the Beneficial Islands as well as the Crown Titi Islands. Despite the fact that Rakiura Maori selected the CIAB, Mr Reihana saw the role of Te Runanga o Ngai Tahu in the selection of the CIAB, and the effective merging of the CIAB and the RTC as giving Te Runanga o Ngai Tahu some form of involvement in the administration of the Beneficial Titi Islands which was inappropriate.[29] Mr Reihana submits that, if, as Keane J stated, the complaint needed to be grounded in some breach of the legislation, then s 335(a)(ii) of the Act was breached. That provision prevents Te Runanga o Ngai Tahu from undertaking any activity that would prejudice the control and management of the Crown Titi Islands. Mr Reihana submits that what was done did prejudice the control and management of the islands. [30] A related complaint raised by Mr Reihana concerns the effect of the joint membership. He alleges the RTC did not hold an annual meeting as required by reg 7(1)(c) of the 1978 Regulations during the period 2000-2002 (that is after the meeting in February 1999, the next one held was not until February 2003). This meant the annual elections of the RTC did not take place. He says that this demonstrates the deliberate strategy on the part of the Te Runanga o Ngai Tahu to maintain common membership. [31] In fact, at the February 2003 meeting, Rakiura Maori voted to have separate membership of the two bodies. Mr Reihana has always contended that such a meeting was held in response to his bringing the initial proceeding CP 24/01 to force the holding of the annual meeting and that the increased attendance at it demonstrates the displeasure of Rakiura Maori with the process. [32] On this point Keane J said that, as the meeting was held in February 2003, and the proceedings were not heard until 14 March 2003 with a judgment delivered on 1 April 2003, "manifestly, that cannot be so." It is Mr Reihana's argument that the meeting was in fact convened because of the bringing of the proceeding and therefore his action had been instrumental in the changed position. [33] Mr Reihana further challenges Keane J's assessment that "the fact that the members of the CIAB may still be those appointed in February 1999, adds nothing. Their term, if it has not expired, soon will." Mr Reihana's response is that to take that attitude fails to recognise and "cleanse thoroughly" the "dirty tricks" of the respondent. [34] In a handwritten addition to his points on appeal, Mr Reihana has suggested it would be beneficial for this Court to give guidance as to the impact of the CrownApology found in ss 4 and 5 of the Act on issues of statutory interpretation. This point does not arise on the facts and was not considered in the High Court. It is not a matter which can now be engaged for the first time in this Court. [35] Finally, Mr Reihana requests the Court through its ruling on appeal to remind those in a position of trust and with the power to make decisions which affect the "illiterate and dependent" Maori community to maintain their honour, ethics and mana at all times. He states that Maori expect a higher degree of ethics, representation and responsibility from its servants than was shown in this case.Respondents' submissions[36] There was a joint submission on behalf of the first and second respondents whose position can be summarised as:(a) The Administering Body did not exist until its members were selected and confirmed by the Minister. It cannot be made answerable for the process that elected its members. (b) The selection process for the Administering Body for the Crown Titi Islands (now known as the Rakiura Titi Islands) was carried out in a manner consistent with the provisions of the Deed of Settlement and the Settlement Act. (c) There is nothing in the Deed of Settlement or the Settlement Act to prevent Rakiura Maori from holding meetings or wananga to discuss issues regarding the election of their Administering Body. (d) There is nothing in the Deed of Settlement or the Settlement Act to prevent the Rakiura Titi Committee and the Administering Body being comprised of the same members. (e) At a hui on 21 February 1999, the Rakiura Maori who attended, and were eligible to vote, exercised their right to vote and selected the members of the Rakiura Titi Committee to be the members of the Administering Body. Ngai Tahu selected the tenth member of the Administering body. (f) At a subsequent hui on 23 February 2003, Rakiura Maori decided that the Rakiura Titi Committee and the Administering Body should have separate membership. (g) Even if the selection process was not consistent with the Deed of Settlement and the Settlement Act, which is denied, no relief should be granted as the relief sought is futile and there has been delay in commencing the proceeding.Discussion[37] We turn first to the complaint about the way in which Keane J conducted the hearing in the High Court. As became apparent in the hearing before us, it is not always easy to distill the arguments which Mr Reihana is anxious for the Court to understand. It appears that Keane J adopted the approach he did in order to isolate better the issues and to indicate where Mr Reihana needed to establish facts and demonstrate support for the conclusion which he wanted. There is nothing in this point which justifies intervention by this Court. [38] In respect of the relief which was initially sought by Mr Reihana, and which he seeks now to obtain a declaration about from this Court, whatever the position might have been (and we make no findings of any sort) it is clear that, with the passage of time, no relief could have any practical effect. The process complained of took place in August 1998 and February 1999. This proceeding for judicial review was filed in the High Court initially on 16 January 2003, almost four years after the event. Mr Reihana asked us to declare that what had happened in 1998 and 1999 was unlawful, but there is no basis on which we could do so and, even if there were, it would be pointless. [39] In his very comprehensive arguments presented with substantial feeling, Mr Reihana has not shown sufficient reason why an appellate Court should interfere with the exercise of discretion of Keane J not to grant relief because of the delay and the legal futility of it. [40] The initial five-year terms of the members of the CIAB have now expired. A policy of separate membership of the CIAB and the RTC has now been put in place. The complained of matters no longer exist. [41] There is nothing which has been advanced which could justify this Court reaching a different conclusion to that reached in the High Court in refusing relief. The appeal must accordingly be dismissed.Solicitors: Bell Gully, Wellington, for Respondents