REIHANA v RAKIURA TITI COMMITTEE [2018] NZCA 325

REIHANA v RAKIURA TITI COMMITTEE [2018] NZCA 325 [27 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA560/2016[2018] NZCA 325BETWEEN TONI COLIN REIHANAAppellantAND RAKIURA TITI COMMITTEEFirst RespondentSTEWART BULLSecond RespondentRON RANUI BULLThird RespondentSONIA RAHITIFourth RespondentHearing: 14 August 2018Court: Kós P, French and Miller JJCounsel: Appellant in personC M Lenihan for First RespondentJudgment: 27 August 2018 at 3.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the first respondent 75 per cent of costs for astandard appeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Reihana has brought three proceedings in the High Court, all allegingmismanagement of the Beneficial Tītī Islands, a group of 21 islands reserved forRakiura Māori.[2] The Titi (Muttonbird) Islands Regulations 1978 provide for governance of theislands and prescribe that disputes must be referred to an independent decision maker.Gendall J stayed Mr Reihana's proceedings until that process has been completed ineach case.1 This appeal is brought against that decision.Governance of the Tītī Islands[3] Gendall J surveyed the islands' history since 1864, when they and Rakiura(Stewart Island) were transferred to the Crown by Deed of Cession.2 We need notrepeat that. For our purposes a short explanation suffices.[4] Briefly, Rakiura Māori who have a beneficial interest in a particular island(beneficiaries) enjoy the right to enter that island and take tītī (muttonbird or sootyshearwater) chicks in season. Rakiura Māori are members of Ngāi Tahu orNgāti Mamoe iwi who are also descendants of Rakiura's original Māori owners.No other person may enter the Islands without a permit, although beneficiaries mayauthorise their family members to enter onto an island in accordance with the tikangaassociated with that island. The regulations establish a framework for self-governanceby those who have the knowledge and experience to govern according to tikanga,which encompasses Māori customary law and practice.31 Reihana v Rakiura Titi Committee [2016] NZHC 2048, [2016] NZAR 1491 [HC judgment].2 At [5]–[8]. We note that Gendall J had the assistance of Te Rūnanga o Ngāi Tahu, who filedsubmissions on this subject as an intervenor in the proceeding. Te Rūnanga o Ngāi Tahu did notapply to intervene in the appeal.3 We need not attempt a definition of tikanga. For our purposes it suffices to note that it includesbut is not limited to customary law. We refer to, for example, Natalie Coates "The Recognitionof Tikanga in the Common Law of New Zealand" (2015) NZ L Rev 1 at 4; and Linda Te Aho"Tikanga Māori, Historical Context and the Interface with Pākehā Law inAotearoa/New Zealand" (2007) 10 Yearbook of New Zealand Jurisprudence 10 at 10–11.[5] The regulations provide for the Rakiura Titi Committee, which is elected at anannual meeting. Each island may have a Supervisor, who is nominated at the annualmeeting by those frequenting that island and is appointed by the Committee.4[6] The regulations set out certain obligations for anyone birding or using theIslands:4 Provisions relating to birding and use of islands(1) Birding shall not commence earlier than 1 April and must cease with31 May in each year, and no person shall take muttonbirds at any othertime.(2) No person shall take any parent bird at any time, either on or off thesaid land.(3) Every person making holes in burrows to take out the birds shall causethose holes to be refilled and stopped, where it is possible to do so, sothat no water can enter the holes and thereby destroy the burrows.(4) Every person taking any dog on to the said land shall keep it properlychained up to prevent it destroying the burrows. If dogs are used tocatch the birds, they must be kept by the owner under his absolutecontrol, and he shall be responsible for any damage done by them.(5) No person shall take any cat, or cause any cat to be taken, on to thesaid land.(6) No person shall light any fire on the said land except for domesticpurposes or a signal fire in cases of emergency, and any fireoriginating from torches or otherwise accidently must be immediatelyextinguished by the person causing it to be lit.(7) All persons frequenting the said land shall take all necessaryprecautions to provide for the exclusion and destruction of vermin,such as rats, mice, stoats, and weasels.(8) Every person taking muttonbirds must immediately dispose of allrefuse and offal therefrom in a lawful manner and must not allow thesame to accumulate and become a nuisance and menace to health.(9) Manus (or bird-catching areas) on a beneficial island shall be allottedto persons by the majority of the beneficiaries present on their islandin the year the manus are allotted or, if such a majority of beneficiariescannot agree on allotment, by the Supervisor for the island.(10) No person shall have any firearm in his possession while he is on thesaid land.4 Titi (Muttonbird) Island Regulations 1978, regs 6 and 8.[7] A beneficiary may erect a house or whare on a site approved in writing by themajority of beneficiaries present on an island in the year when the site is selected, orby the Supervisor if they cannot agree.5[8] The Supervisor is responsible for allocating manus, or bird-catching areas, andother privileges, opportunities and rights:6 Supervisors(1) The Supervisor shall be responsible for ensuring a fair andequitable distribution of the privileges, opportunities, and rights underthe regulations of all persons authorised to enter the island or part ofan island. In addition to any other powers prescribed in theseregulations, the Supervisor shall have power to call meetings of allbeneficiaries on their island at the time for the purpose of approvingsites for buildings and allotting manus and generally supervise theconduct of birding operations on the area under his supervision.He shall be required to report to the Committee any infringement ofthese regulations [9] The power to issue permits to enter the Islands is vested in the Committee.6[10] Disputes arising out of the regulations must be referred to the Committee:7(2) If there is any dispute between Supervisors concerning the allotting ofmanus or any other dispute arising out of these regulations, the disputeshall be referred to the Committee who shall call a meeting of theSupervisors or other parties concerned to settle the dispute as soon aspossible thereafter. Failing agreement being reached by theSupervisors or parties, or if they do not attend the meeting so called,the Committee shall make the decision, which shall be final andbinding on all parties.[11] There is a right of review by an independent decision maker. It may beexercised by any beneficiary who is dissatisfied with a decision of the Committee:9 Referral to independent decision maker(1) A beneficiary (an applicant) who is dissatisfied with a decision ofthe Committee may apply, in writing to the Committee, for the matterto be referred to an independent decision maker for resolution.5 Regulation 5.6 Regulation 3(2A).7 Regulation 6.(2) The Committee must,—(a) within 10 working days after receipt of an application undersubclause (1), notify any other parties directly affected by thedecision to which the application relates (the other parties);and(b) within 15 working days after—(i) receipt of the application, attempt to reach anagreement under subclause (3)(a)(i)(A) if no otherparties are involved; or(ii) giving notification to the other parties, attempt tofacilitate an agreement under subclause (3)(a)(i)(B) ifany other parties are involved.(3) The person to be appointed as independent decision maker—(a) must—(i) be agreed on—(A) by the Committee and the applicant if noother parties are involved; or(B) by the applicant and the other parties if anyother parties are involved; and(ii) be appointed by the Committee; but(b) may be decided on, and appointed, by the President of theArbitrators' and Mediators' Institute of New ZealandIncorporated if—(i) agreement has not been reached under subclause(3)(a); and(ii) the applicant has, within 15 working days after theexpiry of the time specified in subclause (2)(b), madean appropriate written request to the President.(4) The procedures for resolution may—(a) be agreed on by the applicant and the other parties; or(b) be decided on by the independent decision maker, ifagreement has not been reached under paragraph (a).(5) The independent decision maker must attempt to resolve the matterby mediation.(6) However, if the independent decision maker believes that mediationhas failed, or will fail, to resolve the matter, he or she may resolve thematter in any way he or she considers appropriate.(7) Nothing in this regulation prevents more than 1 independent decisionmaker being appointed in relation to a particular matter and, if morethan 1 independent decision maker is appointed, this regulationapplies with all necessary modifications.The claims[12] Mr Reihana is a beneficiary with rights to enter and take birds at Hinekuhamanu on Te Kanawera (also known as Taukihepa) tītī island.8[13] Having surveyed the regulations we can now put his complaints in context.The pleadings are complex and repetitious, but in argument Mr Reihana helpfullyidentified the central disputes:(a) As the appointed Supervisor in the years prior to 2015, he banned hiscousin, Pierre McManus, from the island for serial breaches of tikanga.The power to exclude a fellow beneficiary is not expressed in theregulations; rather, he says it is a customary power vested exclusivelyin him as Supervisor. His decision was never implemented bythe Committee, which refused to recognise his power to ban abeneficiary and refused to refer the issue to an independent decisionmaker under reg 9.(b) He was removed as Supervisor at the annual meeting on 21 February2015, the Committee having refused, contrary to past practice, torecognise many written nominations by members of his whānau.(c) The appointment of Pierre McManus as Supervisor at the same meetingwas unlawful for the same reason, and also because Mr McManus isunworthy of the role having regard to his disrespect for tikanga.(d) At the instigation of Mr McManus the Committee, also at the samemeeting, refused Mr Reihana permits to bring builders onto the island.8 The regulations suggest Hinekuha is an island itself, and the Judge appears to have thought so:HC judgment, above n 1, at [22]. However, Mr Reihana described the manu in this way and weare content to adopt his description.This was done on the pretext that there was a dispute about the buildingsite on which stands his partially built whare.(e) Mr Reihana's builders accompanied him to the island on 15 March2015, but two days later the Committee removed them, with policeassistance, on the ground that no permits had been issued. This wasdone notwithstanding that the two builders were whānau and thereforebeneficiaries who did not need permits in the first place.(f) He has suffered financially as a result through wasted costs andsubsequent weather damage to the unfinished whare, and wantscompensation both for that and for breach of his public law rights.(g) In addition, Mr McManus has erected four structures without obtainingthe approval of the beneficiaries or the Supervisor.[14] The proceedings are an amalgam of judicial review and tort causes of action.Mr Reihana says, for example, there were very many breaches of process bythe Committee and its Chair, who are biased, and he also seeks damages formisfeasance in public office.Merits of the stay[15] Gendall J exercised the High Court's jurisdiction under r 15.1 of the High CourtRules 2016, which allows the Court to stay a proceeding for abuse of process on suchconditions as it thinks just. He found these proceedings an abuse because there is analternative and more appropriate method of resolution under the Regulations, and aright of appeal from Committee decisions under reg 9.9[16] We agree. We may state our reasons shortly.[17] Underpinning the claims appears to be an intra-whānau dispute over rights atHinekuha manu and what may be a broader dispute among Rakiura Māori about rights9 HC judgment, above n 1, at [46]–[51].and obligations under tikanga. Through his proceedings, Mr Reihana seeks to takedecisions about these matters out of the hands of the Supervisor for the time being,the Committee for the time being, and any independent decision maker appointedunder reg 9.[18] Mr Reihana justifies this by arguing that the tort and misfeasance claims cannotbe decided under the regulations and questions of interpretation of the regulations mustbe answered by the courts. We accept that he has pleaded allegations of law, and wemust assume for present purposes that his factual allegations may prove to be true.10But it remains the case that the underlying rights and obligations can and should beresolved under the Regulations, because they involve tikanga and becausethe Regulations vest governance of such matters in Rakiura Māori.11 That processshould help clarify and reduce any remaining issues that must be resolved bythe courts.[19] Mr Reihana submits that most of his allegations — he suggested 75 per cent— are amenable to judicial review. He argues that it would be time consuming andinefficient to insist that disputes under the Regulations be resolved before theHigh Court proceedings, which could settle everything. We do not agree. As justexplained, we think the core issues should be resolved under the Regulations.In addition, the factual allegations could not be settled without making findings oncontested facts, meaning that they are not suited to the processes of judicial review.Oral evidence would be required. Mr Reihana would be wise to recognise that ajudicial review application may fail for this reason alone. And finally, a judicial reviewis not an appeal; should he succeed in reviewing any given decision, it would likelybe returned to the Committee for further decision.Result[20] The appeal is dismissed.10 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.11 Reihana v Christchurch Maori Land Court HC Christchurch CP94/00, 28 February 2001 at [9]and [47]; and Reihana v Rakiura Titi Committee (1996) 4 Te Wai Pounamu Appellate MB 144(4)(4 APTW 144(4)) at 154.[21] The Committee seeks costs. We accept that costs are appropriate, albeit at thelowest level. This decision has nothing to do with the underlying merits of thedisputes. It simply recognises that the Committee has succeeded on this appeal. Thatsaid, the appeal was straightforward and we do not consider a full costs award iswarranted in this case. The appellant must pay the respondent 75 per cent of costs fora standard appeal on a band A basis and usual disbursements.Solicitors:Scholefield Cockroft Lloyd, Invercargill for First Respondent