WAIRARAPA MOANA KI POUĀKANI INC v ATTORNEY-GENERAL [2023] NZHC 2086

WAIRARAPA MOANA KI POUĀKANI INC v ATTORNEY-GENERAL [2023] NZHC 2086 [7 August 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2023-485-32[2023] NZHC 2086UNDER Section 27(3) of the New Zealand Bill ofRights Act 1990 and s 2 of the DeclaratoryJudgments Act 1908IN THE MATTER of an application for declaration ofinconsistencyBETWEEN WAIRARAPA MOANA KI POUĀKANIINCORPORATIONApplicantAND ATTORNEY-GENERALRespondentHearing: 17 July 2023Appearances: S J M Mount KC, M K Mahuika and T N Hauraki for theApplicantV L Hardy, C D Tyson and J B Watson for the RespondentJudgment: 7 August 2023JUDGMENT OF COOKE J(Protest to jurisdiction)[1] By application dated 21 April 2023 the Attorney-General seeks ordersdismissing these proceedings for want of jurisdiction. The application is opposed.[2] In its statement of claim the applicant refers to the background of the Crown'sconduct in the wider Wairarapa region and subsequently at Pouākani. This history hasalready been described in previous judgments in earlier claims for judicial review.1The background includes claims that were made to the Waitangi Tribunal, including1 See Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767.an application the applicant made for resumption of land at Pouākani pursuant to s 8Aof the Treaty of Waitangi Act 1975. The applicant refers to the reports of the Tribunaland decisions of the Courts in relation to its claims.[3] The statement of claim then refers to the enactment of the Ngāti Kahungunu kiWairarapa Tāmaki nui-ā-Rua Claims Settlement Act 2022 (the Act) on 13 December2022. That legislation settles the relevant claims as part of the overall settlement ofthe claims by Ngāti Kahungunu ki Wairarapa and Tāmaki-nui-ā-Rua. It includes thefollowing provision:15 Settlement of historical claims final(1) The historical claims are settled.(2) The settlement of the historical claims is final, and, on and from thesettlement date, the Crown is released and discharged from allobligations and liabilities in respect of those claims.(3) Subsections (1) and (2) do not limit the deed of settlement.(4) Despite any other enactment or rule of law, on and from the settlementdate, no court, tribunal, or other judicial body has jurisdiction(including the jurisdiction to inquire or further inquire, or to make afinding or recommendation) in respect of—(a) the historical claims; or(b) the deed of settlement; or(c) this Act or the Te Rohe o Rongokako Joint Redress Act 2022;or(d) the redress provided under the deed of settlement, this Act, orthe Te Rohe o Rongokako Joint Redress Act 2022.(5) Subsection (4) does not exclude the jurisdiction of a court, tribunal, orother judicial body in respect of the interpretation or implementationof the deed of settlement, this Act, or the Te Rohe o Rongokako JointRedress Act 2022.[4] The applicant alleges that its rights affirmed by s 27(3) of the New ZealandBill of Rights Act 1990 (NZBORA) have been limited by the Act.2 It seeks adeclaration of inconsistency.2 The applicant has also foreshadowed amended pleadings that include allegations that the right ins 27(2) was breached, and bringing the proceedings under Part 18 of the High Court Rules 2016as contemplated by r 18.1(ba).[5] The Attorney-General has not filed a statement of defence. Rather, he appliesunder r 5.49(3) of the High Court Rules 2016 for the proceedings to be dismissed onthe basis that the Court has no jurisdiction to hear and determine them. He contendsthat s 15(4) of the Act precludes the Court's jurisdiction to enquire into the mattersalleged in the statement of claim and to grant a declaration of inconsistency.[6] For the reasons outlined below I do not accept the Attorney-General'scontention that Parliament has so excluded the jurisdiction of the Court. I neverthelessaccept that the Court should decline to exercise its jurisdiction to hear theseproceedings seeking a declaration of inconsistency. That is because determining theproceeding would ultimately require the Court to evaluate the reasonableness of theTreaty settlement enshrined by the Act. This would be contrary to the finality of thesettlement intended by Parliament, and would involve the questions of justifiedlimitation under s 5 of the NZBORA that depend on questions of judgementconcerning complex social and political issues. It would not be appropriate for theCourt to engage in that inquiry in the circumstances. So whilst jurisdiction has notbeen excluded by Parliament the Court should nevertheless decline to exercise itsjurisdiction, and the proceedings should be dismissed.Was jurisdiction excluded by Parliament?[7] The suggestion that Parliament has excluded the jurisdiction of the Courtengages constitutional principles. Under the system of parliamentary democracyadopted in New Zealand the role of the Court is an indispensable part of the rule oflaw. A duly elected Parliament enacts legislation, and an independent judiciaryinterprets and applies it. For a parliamentary enactment to be effective it must beinterpreted and applied by the Courts. One cannot legitimately exist without the other.[8] It is for this reason that I do not accept the Attorney-General's submission thatthe approach of the courts to statutory provisions that apparently exclude the Court'sjudicial review jurisdiction are not directly relevant. That is because the ultimatereason why the Court is reluctant to find that privative or exclusion clauses oustjudicial review is based on the same fundamental principles.[9] The effect of such clauses has been addressed in a number of leading NewZealand authorities.3 In H (SC52/2018) v Refugee and Protection Officer the SupremeCourt said that Courts should be "slow to conclude that an ouster provision precludesapplications to the High Court for judicial review alleging unlawfulness of any kind"and went on to find in that case:4 the privative clause does not prevent the Court from exercising itssupervisory jurisdiction to ensure that the requirements of the Act are met andthe applicant's claim is considered lawfully. Since the decision of the Court ofAppeal in Bulk Gas Users Group v Attorney-General, it has been settled lawthat a privative provision does not necessarily prevent scrutiny of a decisionbased on an error of law on the part of the decision-maker that is otherwisereviewable. The Court may strike out review proceedings where the Court issatisfied that the available appeal rights provide a more appropriate pathwayto a remedy than might otherwise have been sought in the review proceedings.But for the reasons given, the deprivation of first instance determination asrequired by the statute could not be remedied by the alternative pathway ofappeal in the present case.[10] A similar approach has been adopted in the United Kingdom. In R (on theapplication of Privacy International) v Investigatory Powers Tribunal the UnitedKingdom Supreme Court held that such clauses can only protect legally validdecisions.5[11] I understand the authorities to mean that ouster clauses cannot be interpretedto exclude the Court's jurisdiction in its entirety. It is the constitutional function of theCourt to ensure that the rule of law is observed. Decision makers must exercise powerslawfully, and cannot act above the law. So such clauses are not to be taken to meanthat statutory decision makers are entitled to act inconsistently with the legislationfrom which they derive their power. That must be beyond Parliament's intent, andperhaps even its competence.[12] In Privacy International Lord Carnwath JSC explained the development of therelevant principles.6 He referred to the more flexible approach to assessing whether3 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA); Tannadyce Investments Ltd vCommissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153; H (SC5 2/2018) vRefugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433.4 H (SC 52/2018) v Refugee and Protection Officer, above n 3, at [63] and [78] (footnotes excluded).5 R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22,[2020] AC 491.6 Delivering judgment for himself, Baroness Hale JSC and Lord Kerr JSC.the Court would engage in judicial review, involving both respect for Parliament'sinferred intention, but also the need to uphold the rule of law, and finding "anappropriate balance between the two".7 He said:8That more flexible approach to the relationship between the legislature andthe courts is in my view wholly consistent with the modern constitutionalsettlement, as confirmed by the [Constitutional Reform Act 2005], andrecognised by this court in [Miller [2018] AC 61]. Against that background,the judgments of this court in [Cart [2012] 1 AC 663] point the way to anapproach which is both pragmatic and principled. The critical step takenby this court in Cart was to confirm, what was perhaps implicit in some of theearlier cases, that it is ultimately for the courts, not the legislature, to determinethe limits set by the rule of law to the power to exclude review.This proposition should be seen as based, not on such elusive concepts asjurisdiction (wide or narrow), ultra vires, or nullity, but rather as a naturalapplication of the constitutional principle of the rule of law and as anessential counterpart to the power of Parliament to make law. Theconstitutional roles both of Parliament, as the maker of the law, and ofthe High Court, and ultimately of the appellate courts, as the guardiansand interpreters of that law, are thus respected. The question in any case is"the level of scrutiny required by the rule of law", set on a basis which asstated in Cart is both "principled but proportionate" (para 51, per BaronessHale JSC), or in Lord Dyson JSC's words (para 133): "what scope of judicialreview is required to maintain the rule of law"; it being "a matter for thecourts to determine what that scrutiny should be" (para 102, per Lord ClarkeJSC).[13] I consider that the same principles apply here. Little significance attaches tothe point that the jurisdiction said to be excluded here involves declarations ofinconsistency rather than judicial review. Both are core functions of the Courtassociated with the rule of law. The same arguments would arise if s 15 of the Act wassaid to exclude the jurisdiction to challenge decisions by way of judicial review. TheAttorney-General argues that the jurisdiction of the Court has been totally excluded tothe point that the High Court rule which applies when the Court has no suchjurisdiction should be invoked and the proceedings dismissed.9 This argumentengages these principles.7 At [130].8 At [131]–[132] (emphasis added). The New Zealand equivalent to the settlement referred to inthe Constitutional Reform Act 2005 (UK) might be most closely found in s 3(2) of the SeniorCourts Act 2016.9 Rule 5.49 is commonly invoked when there is an arbitration clause, or whether another Court,such as the Employment Court has jurisdiction rather than the High Court.[14] The principles so recognised by the exclusion clause cases, including that theCourt's constitutional function to interpret and apply parliamentary enactments is anindispensable element of the rule of law, are reflected in s 15(5) of the Act. Thejurisdiction of the Court "in respect of the interpretation or implementation" of the Actis not excluded. That is necessary as the enactment would otherwise not be effective.[15] The terms of s 15(5) mean that litigation seeking to implement the Act,including any interpretation issues about them, is not excluded. Equally, anapplication under the Declaratory Judgments Act 1908, or the Court's inherent powerto grant a declaration as to the meaning and effect of the legislation would not beexcluded. The ultimate question to be addressed when considering the Attorney-General's argument is, therefore, whether proceedings seeking a declaration ofinconsistency form part of the jurisdiction of the Court that cannot effectively beexcluded, as reflected in s 15(5).[16] In my view proceedings involving making declarations of inconsistency withthe NZBORA are properly considered to be an aspect of the Court's function ofinterpreting and applying the law, and accordingly within the jurisdictioncontemplated by s 15(5). When recognising the jurisdiction to make declarations ofinconsistency in Attorney-General v Taylor France and Glazebrook JJ said thatgranting such declarations of inconsistency was a judicial function, and they referredto the analogous ability to make declarations under the Declaratory Judgments Acteven when there was no lis.10 Declarations of inconsistency ultimately depend onquestions of statutory interpretation — the interpretation of the legislation in questionin light of the meaning and effect of the NZBORA. The only relief sought isdeclaratory. Proceedings which ask the Court to assess and declare whether the"interpretation or implementation" of the Act is consistent with the rights in theNZBORA fall naturally within s 15(5).[17] I do not consider that s 15(1)–(4) purport to exclude that jurisdiction. Themeaning and effect of s 15(1) and (2) appear clear. It is apparent that Parliament iscomprehensively settling all the claims associated with the subject matter of the10 Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213 at [53]. See also Elias CJ at[94]–[100].settlement. The "historic claims" are defined in detail in s 14. This lists all of theexisting claims before the Waitangi Tribunal, and also includes language that isintended to capture all other claims of that kind, whether they have been brought ornot in relation to the subject matter. This aspect of the meaning and effect of thelegislation appears clear — such claims are settled.[18] The meaning and effect of s 15(4) is more ambiguous. But it is apparent thatin addition to settling the historic claims Parliament is also providing that there is nojurisdiction to inquire into them in any new proceedings. This includes excluding thejurisdiction of the Waitangi Tribunal to conduct any new inquiry or make newrecommendations into alleged Treaty breaches. That is particularly captured by thewords in brackets "(including the jurisdiction to inquire or further inquire, or to makea finding or recommendation)". It is also apparent that this exclusion is not limited tothe Tribunal, but also includes any court or other judicial body. As the Attorney-General submitted it would make no sense to exclude the jurisdiction of the specialisttribunal but not also the court. But any intention to exclude jurisdiction beyond newproceedings advancing such claims is less apparent. Without the words in the roundbrackets the provision makes little sense. It would then most relevantly say that "no Court has jurisdiction in respect of this Act". By themselves these wordsdo not convey much by way of clear meaning. But when read together with the wordsin the round brackets Parliament is apparently excluding the jurisdiction of the Courtin relation to any new proceedings concerning the settled claims, with the subjectmatter of the excluded claims more specifically particularised in s 15(4)(a)–(d).[19] I accept the Attorney-General's argument that the commencing words "despiteany other enactment or rule of law " are broad and that the NZBORA is anenactment potentially covered by those words. I also accept the words "in respect of"are broad. But the substance of the jurisdiction so excluded must be found in thebalance of the provision. There is no clear identification of the kind of proceedings soexcluded other than those that involve the subject matter of the Act, and accordinglythe settled claims.[20] I also do not accept the Attorney-General's argument that s 15(4)(c) wouldhave no substance at all if it had not been intended to exclude the jurisdiction of theCourt to make declarations of inconsistency, and that the provision is directed to suchdeclarations because the only judicial work available in relation to the Act is thatinvolving declarations of inconsistency. As he submitted the statutory provisionsincluding such a subsection have been in use for many years, and before thedeclarations of inconsistency jurisdiction was recognised.11 So it cannot be said to bedirected to this jurisdiction. The more natural reading of the list in subs (4)(a)–(d) isthat it is a comprehensive identification of the subject matter that may no longer besubject to proceedings advancing claims that are now finally settled.[21] The reality is that s 15 does not directly address an application to the Court fora declaration of inconsistency, and such an application falls more naturally withins 15(5). Section 15 uses wording that has been adopted in the other Treaty settlementlegislation over many years. No material changes have been made to that statutorywording since declarations of inconsistency were recognised by the insertion of s 92Jof the Human Rights Act 1993 in 2002,12 and then by the decisions of the Court inTaylor v Attorney-General in 2018.13 Sections 7A and 7B were then added to theNZBORA on 30 August 2022 by s 4 of the New Zealand Bill of Rights (Declarationsof Inconsistency) Amendment Act 2022, two months before this Act was passed. IfParliament had intended to exclude the jurisdiction of the Court to make declarationsof inconsistency once that jurisdiction was recognised this would have been mademuch clearer in the Treaty settlement legislation.14 Such a step would be a verysignificant one, including because of the expectations of comity that I will explainbelow.[22] As the applicants submit this interpretation is supported by the purpose of theAct, which is to implement a settlement that cannot be re-opened. Section 11 specifiesthat it is to be interpreted "in a manner that best furthers the agreements expressed inthe deed of settlement". But here the applicants are not seeking to advance the claimsthat have been settled in new proceedings. They make a different allegation. They11 See, for example, Waikato Raupatu Claims Settlement Act 1995, s 9; Ngāi Tahu Claims SettlementAct 1998, s 461; Rongowhakaata Claims Settlement Act 2012, s 15; Ngāti Whare ClaimsSettlement Act 2012, s 13; and Ngāti Kuri Claims Settlement Act 2015, s 15.12 Inserted by s 9 of the Human Rights Amendment Act 2001 (2001 No 96).13 Above n 10.14 The applicant referred to s 13(2) of the Prostitution Reform Act 2003 as an example of Parliamentclearly legislating in a way inconsistent with the NZBORA.accept that the claims are settled, that the jurisdiction of the Court to inquire into themis excluded by s 15, and that the settlement cannot be re-opened. But they allege thatsuch legislation conflicts with their right in s 27(3) of the NZBORA to bringproceedings against the Crown and have them determined according to law in the sameway as civil proceedings between individuals. These allegations are premised on thevery effect that s 15 has. They seek a declaration of inconsistency as a consequence.[23] I also accept the applicant's argument that the interpretative requirements ofthe NZBORA support its arguments. Indeed the interpretative mandate in s 6 of theNZBORA may go further than the common law presumptions of interpretation as it"mandates a more proactive approach to interpretation".15 The Attorney-General'sargument that s 15 of the Act precludes the applicant's right to bring proceedingsagainst the Crown is not to be preferred under s 6 of the NZBORA. That involvesinterpreting s 15 so that it settles the historic claims and excludes the jurisdiction ofthe Court and tribunals to reassess the claims in any new proceedings. But it does notprevent proceedings which engage the Court's interpretative functions, or consideringproceedings for declarations of inconsistency which form part of those functions.[24] I recognise that a claim of inconsistency will often engage the question whethera limitation of a right is demonstrably justified in accordance with s 5 of the NZBORA.That may be so in the present case, as it could be found that there is an apparentlimitation of the right in s 27(3), and accordingly there would be a breach unless thatlimitation were demonstrably justified under s 5. The Crown would have the burdento establish that a limitation was justified. Ultimately it would be for the Crown todecide whether it would advance such an argument, but I accept that if it did it wouldopen up the subject matter of the settlement. In particular the question would arisewhether the limitation on the right to bring proceedings under s 27(3) wasdemonstrably justified given what the Crown was giving by way of compensationunder the settlement. But the fact that the arguments could lead to this if the Crownadvanced such an argument does not establish that the jurisdiction is completelyexcluded. In my view the significance of this factor, and the arguments the Attorney-General advanced on that basis, are most appropriately addressed in relation to the15 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [56] per Winkelmann CJ.second question — whether the nature of the inquiry the Court would be required toundertake means that it would be inappropriate for a declaration of inconsistency tobe considered, and for proceedings seeking a declaration to be allowed to be pursued.[25] For these reasons I do not accept the argument that s 15 of the Act excludes thejurisdiction of the Court to make declarations of inconsistency.Should jurisdiction be declined?[26] That is not the end of the necessary assessment, however. Much of what isadvanced by the Attorney-General in support of the application may neverthelessprovide reasons why the Court should decline to exercise jurisdiction. Whilst thisapplication is brought under r 5.49 it could just as easily have been brought as anapplication to strike out or dismiss the proceedings on the basis that jurisdiction shouldbe declined.[27] As is explained in the passage from Privacy International,16 cases of this kindengage the constitutional relationship between the legislature and the courts where thecourts can be expected to respect the appropriate balance between the two branches ofgovernment. That balance was recognised when Parliament enacted the amendmentsto the NZBORA in response to the decisions of the courts recognising the jurisdictionto grant declarations of inconsistency. In the report of the Privileges Committee onwhat became ss 7A and 7B of the NZBORA, the Committee said:17Declarations of inconsistency do not affect the fundamental principle ofParliament's legislative supremacy, as recognised in section 4 of the Bill ofRights Act. This bill and our recommended amendments similarly would notalter that principle. A declaration of inconsistency is, however, of high publicand constitutional significance. It is an unambiguous statement from a seniorcourt or tribunal that the law of New Zealand infringes upon people'sprotected rights in a manner that cannot be demonstrably justified. Given thatthe Bill of Rights Act requires courts to give legislation a rights consistentinterpretation if one is available, such declarations will not be made lightly.It is vital that the branches of government responsible for making laws andadministering them—the legislative and executive branches, respectively—are both seen by the public to, and do in fact, consider such declarationsproperly. Our package of recommendations seeks to achieve this by providing16 At [11].17 Privileges Committee New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill(30 September 2021) at 2.a clear framework for dialogue between the branches of government. Webelieve it would represent a significant development in New Zealand'sconstitutional architecture relating to fundamental rights, and hope that it willpromote genuine engagement with rights issues.It is worth noting that we are not proposing that either the legislative orexecutive branches be required by law to respond to a declaration ofinconsistency in any particular way. In the spirit of dialogue and ourconstitutional arrangements, that is properly a matter for each branch todetermine on its own.[28] A further aspect of the spirit of dialogue between the judicial and legislativebranches, and the constitutional maturity that is being referred to, involves the Courtrespecting the wishes of the legislature in a more general sense, particularly in specificcontexts. That is part of the comity that will exist between the branches ofgovernment. The Court presumes that Parliament would not take steps to exclude theessential function of the courts. In the same way Parliament can presume that theCourt will not exercise its jurisdiction in an inappropriate way. That comity betweenthe branches of government is part of the inherent balance involved in the separationof powers and the rule of law.[29] When confirming that the Court had jurisdiction the make declarations ofinconsistency, the Supreme Court indicated that jurisprudence would develop over theapproach to be taken to the exercise of the discretion to grant relief by way of such adeclaration.18 This was further referred to in Make It 16 Inc v Attorney-General wherethe Court considered that the factors advanced by the Attorney-General " as to theneed for restraint and comity are relevant to the exercise of the discretion to grant adeclaration but are not a bar to engaging in any inquiry at all".19 The Court concludedthat there was no reason to decline to make a declaration in the circumstances of thatcase.[30] Whilst the discretion would usually be considered once a proceeding had beenfully heard and all the facts and circumstances were apparent, it is not limited in thisway. A Court can decline to consider exercising its discretion if it is apparent from theoutset that embarking upon the inquiry would not be appropriate. Many of the factorsadvanced by the Attorney-General as contextual reasons in support of its argument18 Attorney-General v Taylor, above n 10, at [70] and [121].19 Make It 16 Inc v Attorney-General [2022] NZSC 134, [2022] 1 NZLR 683 at [30].that Parliament had expressly excluded the jurisdiction of the Court are factors thatsupport the Court declining to exercise the jurisdiction in this case.[31] Whilst there might be scope for arguing that the Act did not limit the right ofaccess to the Court affirmed by s 27(3), including because it changed the substantivelaw rather than the ability to access the Court,20 its provisions on their face appear todo so. The definition of "historic claims" in s 14 includes claims at common law,arising out of aboriginal title, fiduciary duty or otherwise. They appear to exclude acivil claim in the courts. Previous decisions of the courts have accepted thatParliament can so remove the right of access to the court by such clear andunambiguous language.21 Ultimately, however, it is likely that the assessment ofconsistency will depend on justified limitation under s 5 of the NZBORA.[32] The s 5 assessment would involve a broad inquiry. There might be argumentsthat the curtailment of the right to bring proceedings in the Court was justified simplyto give effect to the agreement to settle. But it is almost unavoidable that the inquirywould go beyond that. There were some participants, such as the applicant, who hadclaims, or potential claims, whose litigation was bought to an end even though theydid not agree to the settlement. As the Attorney-General submitted a claim by claimapproach to settlement of Treaty grievances has not been considered to be feasible,and collective settlements with groups based on shared whakapapa have beennegotiated. So the argument would necessarily extend to whether ending theirlitigation was justified to bring finality to the claims of the collective groups, includingwhether what the Crown was giving as part of the final settlement was fair andreasonable in those circumstances. So it would open up not only issues between theCrown and the applicants, but also as between groups involved in the settlement. It isdifficult to imagine that this proceeding could continue without these being centralissues.[33] For that reason the merits of the settlement would be reopened, and re-litigated.That is inconsistent with what the Crown and the counter-parties intended by entering20 The Attorney-General relied on Mangawhai Ratepayers and Residents Association Inc v KaiparaDistrict Council [2015] NZCA 612, [2016] 2 NZLR 437 at [206].21 See Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601, [2013] 2 NZLR57 at [136]–[149]; De Bres v McCully [2004] 1 NZLR 828 (HC) at [22]–[24].the settlement, and what Parliament intended by the legislation. It was intended to bea full and final settlement that was not to be re-litigated.[34] The nature of the inquiry would also potentially be very extensive. It mayrequire evidence in relation to all the historic claims that were settled, and the adverseimplications of them. The report of the Waitangi Tribunal evidences this.22 I amunclear whether the report would be able to be accepted as conclusive on the nature ofthe claims and the impacts of the breaches. The process that was followed to reachsettlement, whether agreement was freely obtained, and the questions of negotiationmandate would also be open for assessment. So the potential magnitude of the inquiryis extensive.[35] Even after receiving all such evidence it would be difficult for the Court toreach conclusions. Assessing whether limitations on fundamental rights aredemonstrably justified can involve social and political considerations. It may be thata margin for appreciation would be available to the Crown in making its assessments.But even allowing for this it would nevertheless be difficult for the Court to decidewhether the removal of the right of access to the Court as part of the settlement ofclaims arising from historic breaches of Treaty obligations (and potentially legalrights) was demonstrably justified given what the Crown was giving in that settlement.[36] It is also to be noted that the Waitangi Tribunal, the expert body, has alreadyeffectively said that what the Crown provides by way of compensation in its Treatysettlements falls well short of the compensation that would be required to remedy thebreaches.23 Whilst the Tribunal's conclusions focused more on other settlementsrather than the settlement in relation to the Ngāti Kahungunu's claims, the views ofthe Tribunal are nevertheless clear. It may be doubted whether any conclusion of theCourt over and above that already reached by the Tribunal would add much.[37] Moreover, as the Attorney-General submits, if the present settlement was to bethe subject of this kind of scrutiny it would be difficult to see why all previous Treaty22 Waitangi Tribunal The Wairarapa ki Tararua Report (Wai 863, 2010).23 Waitangi Tribunal Determinations of the Tribunal Preliminary to Interim Recommendations undersections 8B and 8HC of the Treaty of Waitangi Act 1975 (Wai 863, 2020) at [157]–[203].settlements could not be, including those that have been in place for many years. Evenif only some settlements are to be subject to such judicial scrutiny how would the otherolder settlements then be viewed? Such implications further suggest that embarkingupon the exercise at all is unwarranted.[38] It is also doubtful whether the decision of the Court would have any utility.24The settlement has been reached, and implemented by the Act. A declaration ofinconsistency is usually appropriate in circumstances where Parliament may furtherreflect on its enactment. This is now contemplated by ss 7A and 7B of the NZBORA.But that could not occur in the present case unless the whole settlement wasrenegotiated. As the Attorney-General submitted, this is recognised by parliamentarypractice where there is a convention, reflected in Speaker's Rulings, that it is notParliament's task to amend settlement terms agreed to in the proposed enactmentunless the parties agree to vary their settlement.25[39] There is also a risk that allowing the declaration of inconsistency jurisdictionto still be exercised would bring the jurisdiction into disrepute. If the proceedingswere to continue the Crown may well consider not seeking to justify any limit on theright of access to the Court under s 5 of the NZBORA. Such a stance might not beconsistent with the expectations the Court would have of the Crown, but the Crownmight feel that this unusual stance was not inappropriate, including becauseparticipating in the litigation was not consistent with the settlement that it had reached.It may not be appropriate to put the Crown in a position where it would need toconsider such options, or to allow the declaration of inconsistency jurisdiction to bediminished in this way.[40] The applicant argues in response to these arguments that its focus is on its muchnarrower resumption application which the Supreme Court had held should continue,and which its right to pursue was removed.26 Given the Tribunal was exercising anadjudicative power I accept that access to it is arguably within s 27(3) of the24 The utility of the relief is relevant to the discretion to grant relief, see Attorney-General v Taylor,above n 10, at [58].25 Mary Harris and David Wilson (eds) McGee: Parliamentary Practice in New Zealand (4th ed,Auckland, 2017) at 441.26 Wairarapa Moana ki Pouākani Inc v Mercury NZ Ltd, above n 1, at [163].NZBORA. It is also true that the resumption claim was described as being almostunprecedented, and that the resumption jurisdiction has been infrequently used.27 Buteven though this is the focus of the applicant's claim the wider considerationsinevitably arise. If the legislation preventing that claim continuing is to be justifiedby the Crown under s 5 of the NZBORA the broader settlement would need to beconsidered. The applicant refers to other situations where live claims before theCourts have been preserved in settlement legislation.28 And it is true that Parliamentdoes not conventionally legislate in relation to claims presently before the Court. Butthe existence of litigation could not reasonably be used as a reason why collectivesettlements could not be implemented, and neither could they continue in a way thatwould potentially lead to the settlement being undermined. I do not consider that theapplicant's claims are narrow, or that they could be addressed by a narrow inquiry.[41] For these reasons I conclude that the Court should not consider granting adeclaration of inconsistency in the circumstances of this case, and that the proceedingsshould be dismissed. I do so under the inherent jurisdiction rather than under r 5.49.[42] A conclusion that Parliament has not excluded the jurisdiction of the Court, butthat the Court should decline to exercise that jurisdiction is not a mere technicality.The fact that the Court will not consider granting a declaration of inconsistency forthis Treaty settlement does not mean that it would not do so in future if there were verydifferent circumstances. To take an extreme example, if such a "settlement" wereimposed on claimants without any agreement having been reached, with the claimsbefore the Tribunal/courts nevertheless brought to an end by legislation, the Courtmight consider exercising its jurisdiction to grant a declaration of inconsistency. Thatis not, of course, how Treaty settlements have been reached and implemented,although there have been debates about the level of agreement to the settlement thatmust be evidenced. But it is necessary for the rule of law that the Court reserve thepotential for it to exercise jurisdiction even if it is unlikely that circumstances willarise justifying it to be exercised in this kind of case.27 At [82].28 See Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Māui ClaimsSettlement Act 2014, s 25(6).Conclusion[43] For the above reasons I accept that the Court should not exercise its jurisdictionto grant a declaration of inconsistency in these proceedings, and that the proceedingshould be dismissed.[44] The Attorney-General will likely be entitled to costs on a 2B basis. If costscannot be agreed I will receive memorandum from the Attorney-General (no longerthan five pages plus a schedule), to be responded to by the applicant within 10 workingdays (no more than five pages plus a schedule).Cooke JSolicitors:Kāhui Legal, Wellington for the ApplicantCrown Law, Wellington for the Respondent