Te Rūnanga-ā-Iwi o Ngāti KahuLand Claims Report for May – June 2013
1. Judicial Review of the Waitangi Tribunal’s Report – on-going
2. Decision from the Court of Appeal on Te Ana o Taite
3. Rumours of Crown Offer For a Full and Final Extinguishment of All Ngāti Kahu Claims
Summary:
Brendon Brown QC advised that there are clear grounds for judicial review of the Waitangi Tribunal’s report on our application for binding recommendations. However he has just been appointed to the High Court by Minister for Treaty Settlements, Chris Finlayson. We have now approached Royden Hinden, Barrister, to undertake the work.
The decision of the Court of Appeal on Te Ana o Taite has overturned the High Court decision which prevented Carrington Farms building on that burial cave. Our lawyers advised us to appeal to the Supreme Court. Nine marae have instructed that the appeal proceed and our lawyers have been instructed accordingly.
We have received various messages informing us of the time and date that we should call a hui for Minister Chris Finlayson to present his offer to extinguish all Ngāti Kahu claims fully and finally. Your executive team advises that he be told to put his offer in the post.
1. Judicial Review of the Waitangi Tribunal’s Report – on-going
Brendon Brown QC advised us last month that there are clear grounds for judicial review of the Waitangi Tribunal’s report on our application for binding recommendations and that he was prepared to take our case. However a couple of weeks ago the Attorney General, who is also the Minister for Treaty Settlements, Chris Finlayson, appointed Brendon as a judge in the High Court, preventing him from acting for clients any more. We have now approached Royden Hinden, a Barrister with extensive experience in Human Rights matters, to undertake the work for us.
2. Decision from the Court of Appeal on Te Ana o Taite
The decision of the Court of Appeal on Te Ana o Taite came out on 11 June and it has overturned the High Court decision which prevented Carrington Farms building on that burial cave. The full decision has been circulated to all marae delegates along with a request for authority to appeal the matter to the Supreme Court. Over the last week nine marae have responded and all have given authority for the Court of Appeal decision to be appealed. I have therefore instructed our lawyers to proceed with preparation of the application to appeal to the Supreme Court. The following is a summary provided by our lawyers, James Gardner-Hopkins assisted by Daniel Minhinnick, of the Court of Appeal's decision regarding the Carrington Farms litigation and of Ngāti Kahu's options moving forward.
The Court of Appeal heard the matter on 26 and 27 March this year, and released its decision last Tuesday (11 June). The Court of Appeal disagreed with the High Court, which had endorsed Ngāti Kahu's position, and found that:
· The settlement agreement did not preclude Carrington from expanding its accommodation on to land including the site which is the subject of its amended land use application dated 30 September 2008.
· The Council had not acted unlawfully in processing the dwellings consent on a non-notified basis.
· The Environment Court had correctly considered the status of the dwellings consent, and did not err in its consideration of the subdivision application.
The outcome is disappointing to say the least. What is particularly disappointing is the very brief discussion that the Court of Appeal gives to matters we consider to be important. We note that Justice Harrison wrote the decision of the Court. At the hearing, we did get the sense that Justice Harrison was not on our side, although we did feel that the other two judges (O'Regan P and French J) were sympathetic to Ngāti Kahu's concerns.
In order to challenge the Court of Appeal's decision, Ngāti Kahu is required to seek leave from the Supreme Court to appeal and have the matter heard by the Supreme Court. Any application for leave would need to be filed by 9 July. The Supreme Court will decide whether it can determine the application for leave from the papers or if it is on the fence it may request to hear the parties on the leave application.
The grounds for granting leave are that the Supreme Court must be satisfied that it is necessary in the interests of justice for the Supreme Court to hear the matter. Particular statutory criteria of relevance to an application for leave in this case would be whether the appeal involves a matter of general or public importance, and whether a substantial miscarriage of justice may occur unless the appeal is heard. The Act also provides that a significant issue relating to the Treaty of Waitangi is a matter of general or public importance. Based on those criteria, the fact that the High Court reached a very different view to the Court of Appeal, and that the other parties had claimed that the matter was of general or public importance in order to get to the Court of Appeal, we are reasonably confident that leave would be granted for the Supreme Court to hear the matter.
We also consider that the Supreme Court would give a fair hearing to Ngāti Kahu's concerns.
Further to your instructions, we will proceed will preparing an application for leave to appeal.
3. Rumours of Crown Offer For a Full and Final Extinguishment of All Ngāti Kahu Claims
Over the past month Te Kani Williams has received several missives from a government servant about our land claims. Apparently the Minister of Treaty Settlements, Chris Finlayson, has formulated an offer to fully and finally extinguish all Ngāti Kahu claims to more than 200,000 acres of our ancestral lands that were stolen from us, whether those claims have been heard or not. All of our post-1865 claims have yet to be heard and several of our pre-1865 claims are currently being heard along with the Ngāpuhi claims. Any offer to fully and finally extinguish all our claims ignores the Waitangi Tribunal’s recommendation that the Crown make us an offer of partial settlement.
We are also told that the Minister has set the time and date on which he will present his offer. We are also told that he intends to do it our territory. The government servant has asked Te Rūnanga-ā-Iwi o Ngāti Kahu to call and host a hui-ā-iwi so that he can present his offer.
Other than the fact that it will be an offer of full and final extinguishment of all Ngāti Kahu claims, we have no information at all about what the offer contains. Neither have we had any input into the formulation of the offer. In other words this is yet another Crown attempt to dictate to Ngāti Kahu what we are to do with our claims.
The same government servant has advised that the government is allowing a power company to install power lines across our lands at Kohumaru. They asked that we send someone to accompany the power company on a site inspection. As usual they have adopted a divide and rule approach, this time by asking Ngāpuhi to also send someone to accompany the power company over our lands. The power company has demanded ownership (by way of an easement) over the land the power lines traverse. They do not need to own the land. It is not clear whether or how much of Kohumaru the government has promised to the power company. No compensation has been mentioned.
We can discuss these matters in our hui on 29 June.
In the meantime Ngāti Kahu Corporate discussed the matter of the Minister’s offer briefly and advise that rather than wasting the peoples’ time, effort and money calling a hui to be insulted yet again by this man and his servants, that he be told to put his offer in writing and put it in the post. We will then circulate it and call a special hui to consider it if whānau, hapū and marae consider that necessary.
The Kohumaru matter has been referred to Kēnana marae.
Kia ora mai anō tātou
Professor Margaret Mutu
22 June 2013