REIHANA v RAKIURA TITI COMMITTEE [2016] NZHC 2048

REIHANA v RAKIURA TITI COMMITTEE [2016] NZHC 2048 [31 August 2016]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCIV-2014-425-000102[2016] NZHC 2048UNDER the Judicature Amendment Act 1972IN THE MATTER of Judicial Review and related tortiousclaimsBETWEEN TONI COLIN REIHANAApplicantAND RAKIURA TITI COMMITTEEFirst RespondentAND MARAMA COOPERSecond RespondentAND STEWART BULLThird RespondentCIV-2016-425-000015CIV-2016-425-000016BETWEEN TONI COLIN REIHANAApplicantAND RAKIURA TITI COMMITTEEFirst RespondentAND STEWART BULLThird RespondentAND RON RANUI BULLFourth RespondentAND SONIA RAHITIFifth RespondentHearing: 16 August 2016Appearances: T C Reihana - Applicant in personC M Lenihan - Counsel for First RespondentR E Brown - Counsel for Te Runanga o Ngai Tahu (Intervener)Judgment: 31 August 2016JUDGMENT OF GENDALL JIntroduction[1] The applicant, Mr Reihana, has filed three sets of proceedings in which hechallenges the conduct of the first respondent, the Rakiura Titi Committee ("theCommittee"), in relation to the Titi (Muttonbird) Island Regulations 1978 ("the 1978Regulations").[2] The Committee has sought to strike out or alternatively to stay these threeproceedings pursuant to r 15.1 of the High Court Rules.[3] As I understand the position, Mr Reihana has indicated a wish to join TeRunanga O Ngai Tahu ("Te Runanga") as a respondent to the three sets of proceedingsand has provided copies of his pleadings to Te Runanga.[4] On 1 August 2016, this Court noted the hearing of the stay/strike outapplication concerning the three proceedings was issued prior to any suggestion thatTe Runanga would be joined as a party but that in any event it was appropriate for TeRunanga to act as an intervener on the hearing of this application. This has occurred,on the basis that Te Runanga could provide assistance to the Court on aspects such asthe history, purpose and scope of the Regulations and perhaps the approach the Courtmight take to both the present stay and strike out applications. For this the Court isgrateful, and records its thanks for the considerable assistance Te Runanga has been inthe resolution of this application.History of the Titi Islands and the Regulations[5] First, it is useful in considering this matter generally, to provide somebackground to the governance history of the Titi Islands (which have been the subjectof regulations developed in consultation with the owners of the Islands, since 1912),and which are the subject of this proceeding. With gratitude towards Ms Brown,counsel for Te Runanga, the intervener in the proceeding, I adopt the regulatory historyof the Titi Islands as set out in her submissions.[6] To the south of the South Island of New Zealand are Rakiura (Stewart Island)and adjacent islands famous for mutton-birding known as the Titi Islands. On 29 May1864, a Deed of Cession for Rakiura was signed at Awarua. This Deed transferred tothe Crown Rakiura and the adjacent Titi Islands, and it provided for 21 named TitiIslands to be reserved for Ngai Tahu/Ngati Mamoe. A small number of people weregranted beneficial interests in those 21 islands which came to be known as theBeneficial Titi Islands, which are the subject of this proceeding.[7] The Special Powers and Contracts Act 1886 was passed and gave the Governorof New Zealand power to protect the islands and birds from trespassers, and to securethem for Maori.[8] Later, the Land Act Regulations 1912 ("the 1912 Regulations") provided thatRakiura Maori with a beneficial interest in a particular island ("Beneficial Owners")did not require a permit to enter the island in question in which they had a beneficialinterest. However, all other Rakiura Maori1 who wanted to enter an island at the timewere required to obtain a written permit from the Commissioner of Crown Lands forthe Southland Land District ("the Commissioner"). The 1912 Regulations also gaveRakiura Maori the power to appoint "one of their number" to be a supervisor for aparticular Titi Island or part of it ("Supervisor"). The Supervisor was responsible forallotting manus (bird catching areas), supervising conduct on the area under theirsupervision and reporting any infringement of the regulations to the Commissioner.1 The term "Rakiura Maori" it seems means any person who is a member of the Ngai Tahu tribe orNgati Mamoe tribe and is a descendant of the original owners of Rakiura/ Stewart Island: NgaiTahu Claims Settlement Act 1998, s 333.The Commissioner or any Crown Lands Ranger was given power to lay an informationagainst any person who committed a breach of the 1912 Regulations.[9] The Land Act Regulations 1949 (Amendment No 3) of 1962 ("the 1962Regulations") followed. They made further amendments to the administration of boththe Beneficial Titi Islands and to the other islands in the group – called the Crown TitiIslands (as they were then known). Beneficial Owners still did not require a permit toenter land on which they had a beneficial interest. However, other Rakiura Maori whowanted to access a Beneficial Titi Island required the consent of the majority ofBeneficial Owners who had a beneficial interest in that particular island. The role ofthe Supervisor continued. If a dispute developed between Supervisors concerning theallotting of manus or any other dispute arising out of the regulations, theCommissioner was to call a meeting of the Supervisors or other parties concerned tosettle the dispute. If the dispute was not settled, the Commissioner was to make adecision which was to be final and binding on all parties.1978 Regulations[10] The Titi (Muttonbird) Islands Regulations 1978 (which, as I have noted earlier,I will refer to as "the 1978 Regulations") followed. These regulations continued toprovide that Beneficial Owners did not require a permit to enter land on which theyhad a beneficial interest but that no other Rakiura Maori who wanted to access aBeneficial Titi Island could do so without the consent of the majority of BeneficialOwners who had a beneficial interest in that particular island. The role of theSupervisor continued, as did the role of the Commissioner in resolving any disputes.However, the 1978 Regulations introduced the Rakiura Titi Committee (which, as Ihave noted earlier, I will refer to as "the Committee") which was elected annually.One member of the Committee was to be a Rakiura Maori nominated by the Ngai TahuMaori Trust Board. The Committee's role was to inquire into and makerecommendations to the Commissioner on any matter relating to the land in questionthat he may refer to it, and upon such other matters as it thought fit. If any beneficiaryor other person authorised to enter onto the land in question was not satisfied with adecision of the Commissioner, that person could ask the Commissioner to reconsiderthe decision. After consultation with the Committee, the Commissioner was thenrequired to reconsider that decision.[11] Responsibility for the administration of the 1978 Regulations was transferredto the Department of Conservation in 1987 pursuant to s 65(6) of the Conservation Act1987. At that point the Director General of Conservation ("the Director General")took over the role previously carried out by the Commissioner.2005 and 2007 Amendments[12] The 1978 Regulations were the subject of amendment in both 2005 and 2007.The 2007 amendments it seems had the most significant effect in terms of decision-making under the 1978 Regulations. Following all those amendments, the 1978Regulations now provide:(a) Regulation 3(2) was amended so that the Committee can approvepeople entering on the islands earlier than 15 March in any year,whereas previously this was the role of the Director General, on therecommendation of the Committee.(b) Regulation 3(2A) was inserted which allows the Committee to issue apermit to any person and to impose conditions on that permit.(c) Regulation 5, which deals with buildings on an island in question, waschanged so that various roles carried out by the Director General arenow carried out by the Committee.(d) Regulation 6 was amended in two ways. First, it was amended so thatSupervisors are now appointed by the Committee, rather than theDirector General.(e) And secondly, Regulation 6 was amended so that any disputes betweenSupervisors concerning the allotting of manus or any other disputearising out of the regulations is now to be referred to the Committee,which is to call a meeting to settle the dispute and, failing agreementbetween the Supervisors or parties, the Committee is to make a decisionwhich shall be final and binding on all parties.(f) Regulation 7 was amended so that it is the Committee that calls theannual meeting of all interested Rakiura Maori and their respectivespouses. The Committee is also empowered, at any time to call ameeting of all Supervisors.(g) Regulation 9 was amended to allow for any beneficiary who isdissatisfied with a decision of the Committee to apply, in writing to theCommittee, for the matter to be referred to an independent decisionmaker for resolution. This regulation also contains detailed provisionsregarding the time within which the Committee must deal with any suchapplication and the process to be followed.[13] The 1978 Regulations have been the subject of a number of other proceedingsbefore this Court and the Maori Land Court. Of relevance to the present proceeding,in 1996 the Maori Appellate Court made the following finding in relation to the 1978Regulations prior to their amendment in 2007:2The Titi (Muttonbird) Island Regulations 1978 lay down a comprehensive setof rules for the management and control of birding activities on the islands,and for relevant conservation purposes to ensure the survival of the birds onthe islands.We agree with the finding of Deputy Chief Judge Smith that the Titi(Muttonbird) Island Regulations of 1978 contain a complete code for thecontrol of muttonbirding on the islands. When a beneficiary is dissatisfiedwith the final decision of the Director-General or of an officer acting with hisdelegated authority then proceedings in the ordinary Courts are available toseek a review of the Director-General's decision.[14] To similar effect, a few years later in a High Court decision, Panckhurst Jstated:32 In the matter of an appeal by Toni Colin Reihana, Maori Appellate Court, Te Waipounamu District,Appeal 1995/7, 5 September 1996 at 154.3 Reihana v Christchurch Maori Land Court HC Auckland CP94/00, 28 February 2001 at [9].It follows from the very scheme of the regulations that those who becomeSupervisors and Committee members are necessarily interested parties, that isare persons who come from the requisite tribe and who have an interest inmuttonbirding. It is incumbent upon those who have an administrative rolethat they are to promote rangatiratunga wherever possible. In keeping withthis the Director General was described as a "decision maker of last resort".That I think was an apt description of his role.[15] However, up to the present, as I understand the position, Regulation 9specifically has not been subject to any prior decisions.[16] From both the history of the Regulations and the decisions referred to above,it is clear the 1978 Regulations contain "a complete code" for the control ofmuttonbirding on the Titi Islands. The 1978 Regulations set out who is responsible formaking various decisions and, since the 2007 amendments, they have allowed for anybeneficiary who is dissatisfied with a decision of the Committee to apply for the matterto be referred to an independent decision maker.The present 1978 Regulations[17] Relevant to the current proceedings are the specific provisions of regulations 6and 9 of the 1978 Regulations. Regulation 6 provides:6 Supervisors(1) The Rakiura Maoris frequenting any island forming part of the saidland or any part of any such island may at the annual meeting held inaccordance with regulation 7(1) nominate one of their number, who,after appointment by the Committee, shall be the Supervisor for theparticular island or part of an island. The Supervisor shall beresponsible for ensuring a fair and equitable distribution of theprivileges, opportunities, and rights under the regulations of allpersons authorised to enter the island or part of an island. In additionto any other powers prescribed in these regulations, the Supervisorshall have power to call meetings of all beneficiaries on their island atthe time for the purpose of approving sites for buildings and allottingmanus and generally supervise the conduct of birding operations onthe area under his supervision. He shall be required to report to theCommittee any infringement of these regulations. Failing thenomination of a Supervisor for any area, the Committee may make theappointment.(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.[18] As I will discuss below, the relevance of Regulation 6 here involves MrReihana's present complaint that the Committee has acted improperly following itsrefusal to appoint him as a Supervisor.[19] Regulation 9 provides:9 Referral to independent decision maker(1) A beneficiary (an applicant) who is dissatisfied with a decision of theCommittee may apply, in writing to the Committee, for the matter tobe referred to an independent decision maker for resolution.(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.[20] I have already noted that the 1978 Regulations were intended to be a code forthe governance of the Titi Islands. Among the purposes of the regulations in settingout a regulatory procedure to resolve internal disputes, was the wish to preserve theautonomy of the governing body and to reduce the cost of administration andlitigation.The three proceedings brought by Mr Reihana[21] Having considered the regulatory history of the proceeding, I brieflysummarise the three proceedings brought by Mr Reihana. The applicant's pleadingsare lengthy and, in part, somewhat difficult to follow. Nevertheless, the statements ofclaim with respect to each of the proceedings relate generally to matters I now outline:CIV-2014-425-102[22] As I understand the position, it appears that this proceeding relates to a timewhen Mr Reihana was himself a supervisor for one of the Titi Islands, Hinekuha. Atthat time Mr Reihana requested the Committee to make a decision in relation tobanning a beneficiary from the island. Mr Reihana sought the Committee's support inhis position as Supervisor and a decision to that effect.[23] Mr Reihana, it seems, also advised that should the Committee declinejurisdiction in this case or decide that it was not prepared to back his banning attemptand thus the Committee reached an unfavourable decision on his request, Mr Reihanawould instigate the process under Regulation 9.[24] In response, the Committee decided in fact that it did not have jurisdiction toban a whanau member from his/her beneficial right on the Titi Island in question,because there was nothing in the 1978 Regulations to authorise this. The Committeerecommended that Mr Reihana attempt to resolve the issue with the individual whanaudirectly, and if unsuccessful, that he come back to the Committee to mediate.[25] Then, as I understand it, Mr Reihana says that in March 2013 he advised theCommittee that the matter was before an independent decision maker. The Committeehowever asserts now that it never found out the outcome or indeed heard from thedecision maker.[26] It appears Mr Reihana decided at that point that, despite his earlier indication,he wasn't going through with the Regulation 9 procedure of appointing an independentdecision maker. Almost a year went by without any further correspondence betweenMr Reihana and the Committee. Then, perhaps unexpectedly to some extent, MrReihana filed a Supervisor's report. In October 2014 the Committee invited MrReihana and the other whanau members in dispute to attend a meeting. Mr Reihana,it appears, agreed to attend but later sought a deferral of the meeting until 4 November2014.[27] In the meantime in October 2014, however, without notice Mr Reihana advisedthat he was bringing this proceeding in the High Court challenging the Committee'sdecision not to support him in banning the beneficiary. He then served it on theCommittee and other individual committee members. The planned 4 November 2014meeting did not take place.CIV-2016-425-15[28] As best I can tell from Mr Reihana's statement of claim, this proceeding makesreference to two different complaints against the Committee. The first complaintconcerns an application by Mr Reihana to take two non-Rakiura Maori builders to oneof the Titi Islands, Taukihepa Island. The application was considered and thendeclined by the Committee on the grounds that this permit related to a building projectat a site on Taukihepa Island involving heavily disputed boundary and building siteissues contested between Mr Reihana and other beneficiaries of the Islands for sometime.[29] Mr Reihana's second complaint in this proceeding refers to a failure to appointhim as a Supervisor for one of the Titi Islands in question. During the election ofSupervisors generally, several written nominations were apparently received prior tothe Annual General Meeting ("AGM") of the Committee. One of these was from MrReihana. However, it seems the parties who had nominated him for this Supervisorrole were not present on the day of the AGM. The Committee contended thatRegulation 7(1)(b) of the 1978 Regulations required the Rakiura Maori who wereinvolved to be actually present at the AGM in order to nominate supervisors underRegulation 6(1), and that this had not occurred here.CIV-2016-425-16[30] This proceeding involves an allegation by Mr Reihana that four buildings were"unlawfully erected" without authority on Taukihepa Island by members of hiswhanau. On 26 May 2015, Mr Reihana wrote an email to the Committee, requesting"pluck house" buildings on Taukihepa Island be removed. The Committee thendiscussed this matter and dismissed the claim on the basis that there was no clearbreach of the 1978 Regulations as none of the structures in question were consideredto be "a house, whare or other building" under the 1978 Regulations and no authorityexisted therefore to have them removed. It is this decision which Mr Reihanachallenges in this particular proceeding.[31] The present application is one brought by the Committee to strike out or stayall these proceedings. Before considering the application itself, I will briefly set outthe law relating to applications of this type.LawStrike Out Application[32] Rule 15.1 of the High Court Rules sets out the requirements for the Court tostrike out all or part of a plaintiff's proceeding, and provides:415.1 Dismissing or staying all or part of proceeding(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, orcase appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.(2) If the court strikes out a statement of claim or a counterclaim undersubclause (1), it may by the same or a subsequent order dismiss theproceeding or the counterclaim.(3) Instead of striking out all or part of a pleading under subclause (1),the court may stay all or part of the proceeding on such conditions asare considered just.(4) This rule does not affect the court's inherent jurisdiction.[33] The established criteria for striking out was summarised by the Court of Appealin Attorney General v Prince as follows:5(a) Pleaded facts, whether or not admitted, are assumed to be true.(b) The cause of action or defence must be clearly untenable.4 High Court Rules, r 15.1.5 Attorney General v Prince [1998] 1 NZLR 262 (CA). This was endorsed by the Supreme Courtin Couch v Attorney General [2008] NZSC 45.(c) The jurisdiction is to be exercised sparingly, and only in clear cases.(d) The jurisdiction is not excluded by the need to decide difficult questionsof law, requiring extensive argument.(e) The court should be particularly slow to strike out a claim in anydeveloping area of law.[34] The principles set out in Attorney General v Prince were also recentlyreaffirmed by the Supreme Court in Carter Holt Harvey v Minister of Education.6 Andit is clear too that the same criteria apply to an application to strike out a judicial reviewproceeding.7Stay application[35] The High Court also has jurisdiction to stay all or part of a proceeding. TheCourt's jurisdiction is based upon rr 15.1(3) of the High Court rules noted at [32]above. This confers on the Court a jurisdiction in staying a proceeding to make orders"on such conditions as are considered just".[36] In addressing this rule, McGechan on Procedure notes that a common groundfor the courts to stay a proceeding arises when an alternative method of disputeresolution has been provided for. The text explains:8(2) Pending other agreed methods of dispute resolutionCourts have stayed proceedings to enforce a previously agreed alternativemethod of resolving the dispute. Examples are:(a) Agreement to refer any dispute to a panel of three experts forsettlement.9(b) Contractual agreement to try to conciliate differences.106 Carter Holt Harvey Ltd v Ministry of Education [2016] NZSC 95 at [10].7 Southern Ocean Trawlers Ltd v Director General of Agriculture and Fisheries [1993] 2 NZLR 53(CA).8 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at HR15.1.10(2).9 Channel Tunnel Group v Balfour Beatty Construction Ltd [1993] 1 All ER 664 (HL).10 Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194 (SC).(c) Agreement to mediate.11[37] The case law on the availability of judicial review in circumstances where anapplicant has not exhausted the statutory appellate process requires the Court todetermine:(a) whether the claims contained are in fact claims that could be addressedusing the provisions of the Regulations; and(b) if so, whether the procedure contained in the Regulations is moreappropriate than judicial review proceedings.[38] While the starting point is that the availability of appeal or other rights doesnot prohibit the bringing of judicial review claims, there is, however, a preference forthe regulatory route where it is available. In Telecom New Zealand Ltd v ChristchurchCity Council, Chisholm J observed:12It is unlikely that the outcome of the Council's strike out/stay application willturn on the specific test or threshold that is applied. The pivotal issue iswhether the statutory objection process is capable of effectively determiningthe issue raised in the judicial review proceeding. Resolution of that issue islikely to determine the matter one way or another.[39] The test requires a context specific analysis. Cases focus on whether byreference to the relevant statutory provision in question, it is in the jurisdiction of theregulatory process to hear the proceeding.Analysis[40] At the outset, I need to say that it is not appropriate at this stage of theproceeding to strike out the claims brought by Mr Reihana here. I reach thisconclusion however by a reasonably fine margin. The Court's jurisdiction to strikeout any proceedings is one to be exercised sparingly, requiring the proceedings to beclearly untenable. In my opinion, it is premature, as the proceedings presently stand,to strike out Mr Reihana's claims on the basis that they disclose no reasonably arguable11 Braid Motors Ltd v Scott (2001) 15 PRNZ 508 (HC).12 Telecom New Zealand Ltd v Christchurch City Council CP 68/02, 18 March 2003 at [23].cause of action. Before me, little by way of submissions was advanced by Mr Reihanain opposition to the strike out application. He complained that the strike out questionwas one sprung on him at the last minute before this hearing. The Committee disputedthat, but in any event, I heard little significant argument from Mr Reihana on this strikeout question. And, if I were to strike out his claims here, this may have an impact onMr Reihana's ability to use the dispute resolution process specifically provided for inthe 1978 Regulations in these claims which largely involve members of his extendedwhanau. In part at least, this is because an independent decision maker, appointedpursuant to Regulation 9, may be likely to feel constrained in some way by this Court'sdetermination. This is to be avoided.[41] However, I do find that the three proceedings should be stayed pendingresolution under Regulation 9 of the 1978 Regulations. Clearly, in my view a stay isthe appropriate course here. Applying the test in Telecom New Zealand Ltd vChristchurch City Council, I am satisfied that the various complaints should beaddressed by appointment of an independent decision maker pursuant to Regulation9.[42] Furthermore, as set out earlier in this judgment, it is clear Mr Reihana himselfinitially opted into the regulatory procedure under Regulation 9 before unilaterallywithdrawing, no doubt after a simple change in his mind. On this, in an email dated8th December 2012, Mr Reihana wrote to the Committee members stating (in hiswords):Tena koutou katoaMmm as i anticipated i would get off tangent bent from the committee on theirinterpretation of what the titi regulations provisions mean and how they shouldbe properly interpretted, why i suggested the review to the independentdecision makerand so i apply forthwith for a review of your decision by an independentdecision maker pursuant to Reg. 9...[43] Addressing this in a little more depth, as I have noted above, this Court hasjurisdiction to stay all or part of a proceeding. The Court's jurisdiction to stay has twobases:(a) a statutory jurisdiction to make an order "on such conditions as areconsidered just",13 and(b) the Court's inherent jurisdiction, maintained by the High Court Rules.14[44] Here, the Committee as applicant has the burden to establish that a stay iswarranted.15[45] This Court may exercise its jurisdiction to grant a stay where to continue theproceeding would amount to an abuse of process. In doing so, the Court may rely oneither its statutory or inherent jurisdiction. An abuse of process includes, relevantlyhere:(a) a failure to use a dispute resolution clause where that dispute resolutionclause is sufficiently certain;16 and(b) a failure to use a statutory appellate procedure where that procedure isthe more appropriate forum for hearing the dispute.17[46] This proceeding concerns the second situation. The Committee has filed twointerlocutory applications on notice (dated 18 March 2016 and 1 July 2016). In thesecond interlocutory application, the Committee explains substantively the basis forits application for stay. It is useful here to set out the Committee's reasons in full:a. The Titi (Muttonbird) Islands Regulations 1978 (the Regulations)provide remedies for disputes or grievances arising out of matterscovered by the Regulations.b. The Regulations are designed to promote self-governance by RakiuraMaori themselves, being the descendants of the original owners of theIslands and the people who have specialist knowledge of issuesrelating to the Islands and birding, according to tikanga.c. There are a variety of remedies available under the Regulations toresolve disputes or issues, including:13 High Court Rules, r 15.1(3).14 High Court Rules, r 15.1(4); Siemer v Stiassny [2011] NZCA 1 at [15].15 Air National Corporate Ltd v Aiveo Holdings Ltd [2012] NZHC 602 at [32].16 Braid Motors Ltd v Scott (2001) 15 PRNZ 508 at [33].17 BNZ Investments Ltd v Holland CA 91/97, 31 July 1997 at 11; Telecom New Zealand Ltd vChristchurch City Council HC Christchurch CP 68/02, 18 March 2003 at [47].i. resolution by Rakiura Maori amongst themselves (Regulation6);ii. in certain situations, there can be referral to or decisions bySupervisors appointed pursuant to the Regulations(Regulation 5);iii. Decision by or referral to the Rakiura Titi Committee,(Regulation 6);iv. finally, if necessary, appointment of an independent decisionmaker if requested by a party (Regulation 9).d. The ability to request and appoint an independent decision makerarose out of amendments to the Regulations in 2008, suchamendments being put in place to deal with criticism of the previoussituation (where the final appeal was to the Director-General ofConservation), to provide an independent third party decision makerinstead and to further promote self-governance by Rakiura Maori.e. The remedies available under the Regulations are broad enough toinclude the claims the subject of these proceedings (as far as thoseclaims can be discerned from the current statements of claim). Someof the remedies sought may not be amenable to review by the Courts.f. The Plaintiff has not exercised these remedies available under theRegulations.g. Although difficult to discern, the claims also appear to involvecomplex factual situations that cannot be evaluated without referenceto the facts of the case. These claims are best resolved amongstRakiura Maori (either amongst the people, by a Supervisor, theCommittee) or by an independent decision maker.h. Allowing a plaintiff to pursue a remedy, in the High Court beforeexhausting remedies under the Regulations will inevitably mean greatcost and inconvenience to the Applicant if similar disputes can betaken to the High Court prior to exercising remedies available underthe Regulations.i. There is no patent jurisdictional error on the part of the Applicantinvolved with any of the claims by the Plaintiff.j. To allow an application for Judicial Review and other Tortious Claimsprior to the above remedies being sought would amount to an abuseof process.[47] The essence of the Committee's application is that the 1978 Regulationsprovide a more appropriate forum for hearing Mr Reihana's claims and therefore allthese proceedings should be stayed pending use of the procedures in thoseRegulations. I agree. Chisholm J, in Telecom New Zealand, a case similar to thisproceeding, observed:... it is unlikely that the outcome of the Council's strike out/stay applicationwill turn on the specific test or threshold that is applied. The pivotal issue iswhether the statutory objection process is capable of effectively determiningthe issues raised in the judicial review proceeding. Resolution of that issue islikely to determine the matter one way or other.[48] In the email correspondence between Mr Reihana and the Committee initially,there is a clear degree of acceptance on his part of the appropriateness in cases suchas this of the dispute resolution procedures provided for in Regulation 9 of the 1978Regulations.[49] And, as I see it, the appropriate course here is for the necessary regulatoryprocedure to be implemented and exhausted before any proceedings (if appropriate inany event), are to be brought or pursued before this Court. That is what Regulation 9of the 1978 Regulations for good reason envisaged when it described referral to anindependent decision maker of the (often close whanau) disputes that might arise overdissatisfaction with decisions of the Committee.[50] As I see the position, the issues raised in all Mr Reihana's proceedings shouldbe first determined using the independent decision maker process set out in Regulation9 of the 1978 Regulations, and this Court should stay all the proceedings in themeantime.[51] And, in any event, Mr Reihana would not in any way be prejudiced in usingthe dispute resolution process under the 1978 Regulations. He would also be entitledto restart his proceedings (if this may be appropriate) following the use of the processunder the 1978 Regulations.Conclusion[52] For all the reasons outlined above, the Committee has satisfied the burden onit to establish that the stay sought is warranted here. The Committee's stay applicationtherefore succeeds and appropriate orders now follow.[53] Orders are now made staying the proceedings CIV-2014-425-102, CIV-2016-425-15 and CIV-2016-425-16 respectively until conclusion in each case of theindependent decision maker dispute resolution procedure provided for in Regulation9 of the 1978 Regulations.[54] Leave is reserved for any party to approach the Court further for anyclarification or directions that may be required for the proper implementation of thisdecision.Costs[55] The Committee has essentially succeeded in its application given the orders forstay now made. I see no reason why costs should not follow the event in the usualway.[56] Costs are therefore awarded to the Committee and to Te Runanga (who MrReihana specifically wished to join as a party to these various proceedings) against MrReihana with respect to this application. These costs are to be calculated on a Category2B basis together with disbursements as fixed by the Registrar.Gendall JSolicitors:Scholefield Cockroft Lloyd, InvercargillBell Gully, WellingtonCopy to: T C Reihana