Ngati Apa Ki Te Waipounamu Trust v 1) Attorney General 2) Maori Appellate Court 3) Te Runanga O Ngai Tahu
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mance |
| Judgment Date | 30 October 2006 |
| Neutral Citation | [2006] UKPC 49 |
| Date | 30 October 2006 |
| Court | Privy Council |
| Docket Number | Appeal No 83 of 2005 |
[2006] UKPC 49
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hoffmann
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Lord Mance
[Delivered by Lord Mance]
Introduction
The issue before their Lordships is whether France J [2003] 1 NZLR 779 and the Court of Appeal of New Zealand [2004] 1 NZLR 462 were correct to regard the Maori tribe or iwi Ngati Apa as having been represented in proceedings before the Maori Appeal Court ("MAC") which culminated in a judgment dated 12 th November 1990. By that judgment the MAC held that another South Island iwi, Ngai Tahu, had in 1860 the right of ownership, according to customary law principles of 'take' and occupation or use, in an area to the south of Kahurangi Point on the West Coast (Te Tai Poutini) of the South Island (Te Waipounamu) of New Zealand.
The appellant, Ngati Apa Ki Te Waipounamu Trust ("the Trust"), was formed on 9 th October 1992 to represent the people of the Ngati Apa iwi resident on both coasts of the northern part (Te Tau Ihu) of the South Island. The third respondent, Te Runanga o Ngai Tahu, was incorporated by the Te Runanga o Ngai Tahu Act 1996 to represent Ngai Tahu. The third respondent supports France J's and the Court of Appeal's decisions. The second respondent, the Attorney General, maintains a generally neutral stance, while seeking to assist their Lordships on certain points of public interest. The second respondent, the MAC, has played no part in the appeal.
History
The present proceedings were begun by the appellant Trust in May 1998. In initial affidavits sworn by June Robinson, Kathleen (or Kath) Hemi, Audrey McLaren, Alice Gilsenan-Batt and Iris Climo, there were limited statements about Ngati Apa's representation before the MAC - for example by Kath Hemi to the effect that Ngati Apa's involvement in the MAC proceedings had been "in name only" and by Audrey McLaren and Alice Gilsenan-Batt to the effect that West Coast Ngati Apa had been unaware of and in no way involved in the MAC proceedings. But the issue of representation did not emerge as a discrete basis for relief until after affidavits were sworn by June Robinson and Kathleen Hemi in February and April 1999 leading to an amendment of the claim dated 19 th May 1999.
The MAC proceedings originated from a case stated under section 6A of the Treaty of Waitangi Act 1975 by the Waitangi Tribunal on 17 th March 1989 during the course of a claim made against the Crown by Ngai Tahu. The Tribunal was established by the Treaty of Waitangi Act 1975 to inquire into and make representations upon any claim submitted by any Maori to the effect "that he or she, or any group of Maoris of which he or she is a member is, or is likely to be prejudicially affected" by, inter alia, any ordinance, regulation, proclamation or notice on or after 6 th February 1840 or by any policy or practice (whether or not still in force) adopted or proposed to be adopted by or on behalf of the Crown sections 5(1) and 6(1)). Under section 5(2) the Tribunal, in exercising its functions, must have regard to the two texts of the Treaty (English and Maori) set out in Schedule 1 to the Act. The Treaty was made on 6 th February 1840. Article 2 (in the English version) provided that Her Majesty the Queen of England (Queen Victoria)
"confirms and grants to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon …."
In consideration thereof, the Treaty by article 3 granted to New Zealand Maori "the Rights and Privileges of British Subjects".
Among the many purchases made by the Crown from iwi were the Kaikoura purchase in 1859 of a block towards the north of the East Coast of the South Island for £300 and the Arahura purchase in 1860 of much of the West Coast of the South Island also for £300. The Arahura purchase extended northwards up the West Coast to Kahurangi Point.
Ngai Tahu had customary rights extending over a very large area (takiwa) of the South Island. From 1986 they pursued before the Waitangi Tribunal (in wai 27) numerous claims against the Crown under the Treaty of Waitangi Act 1975. In an amended claim dated 2 nd June 1987 they claimed that "In 1840 the Ngai Tahu people owned virtually all the land in the South Island south of a line drawn between Cape Foulwind in the West and White Bluff just north of Cape Campbell in the East. Today they own very little land". Cape Foulwind is about 125 km south of Kahurangi Point. Mr Crosby, counsel for the appellant underlines this apparent limitation of Ngai Tahu's claim. But it was, as will appear, short-lived.
During 1987 the Kurahaupo Waka Society was formed to support the interests of the South Island Kurahaupo iwi (particularly Rangitane or a sub-tribe or hapu of that iwi) although the name Kurahaupo represents the canoe in which not only Rangitane but also Ngati Kuia and Ngati Apa ancestors first reached New Zealand). On 10 th August 1987 a claim (wai 44) was filed on behalf of the Kurahaupo Waka Society with the Tribunal relating to land within the Arahura purchase. The Kurahaupo Waka Society was at this point represented by Mr Stevens as counsel.
The first hearing of Ngai Tahu's claim in wai 27 took place before the Waitangi Tribunal on 20 th August 1987, when various Te Tau Ihu people involved or interested in the Kurahaupo Waka Society's claim attended, and it was apparent from Ngai Tahu's vigorous opposition to their very presence that there were potential cross-claims to the same territory.
In a further amended claim dated 5 th September 1987, Ngai Tahu complained generally about the form of leasehold imposed on the lands reserved from the Arahura Purchase "against the clearly expressed wishes of the Poutini Ngai Tahu owners" and in a yet further amended claim of 25 th June 1998 they complained about infringements of marine fisheries rights extending to Kahurangi Point in the north.
By Autumn 1987 the Tribunal and all directly involved in its proceedings were aware of over-lapping claims, in relation to the Arahura and also the Kaikura purchases. After hearing evidence and submissions on 21 st September and 5 th November 1987, the Tribunal issued a preliminary decision dated 26 th November 1987. Taking the view that its role was to resolve claims against the Crown, rather than disputes about territory or boundaries between different iwi, the Tribunal recommended a legislative change to enable it to state a case to the MAC for the determination of such disputes. Section 6A, effective from 1 st January 1989, was inserted into the Treaty of Waitangi Act for this purpose. A case was on 17 th March 1989 stated by the Tribunal to the MAC raising two questions:
"1. Which Maori tribe or tribes, according to customary law principles of 'take' and occupation or use, had rights of ownership in respect of all or any portion of the land contained in [the Arahura and Kaikoura] Deeds at the dates of those Deeds?
2. If more than one tribe held ownership rights, what area of land was subject to those rights and what were the tribal boundaries?"
On 10 th April 1989 an association was formed by the name of Te Runaganui o Te Tau Ihu o Te Waka a Maui ("Te Runanganui"). Clause 1.2 of its charter states that it was "formed by the tangata whenua tribes [tribes of the area] to assist Maori people and their families in the Nelson and Marlborough regions" in the northern part of South Island. Clause 6 listed as its membership "people with descent through" nine named iwi including Ngati Apa. Clause 30 identified its territory or takiwa as:
"30.1 Top of the South Island including Cook Straits to the Waimakariri, following the line of the river to Browning Pass on the East Coast.
On the West Coast Hokitika river following the river to Browning Pass".
Hokitika is some 125 km south of Cape Foulwind, or 250 km south of Kahurangi Point.
The formation of Te Runanganui was first mooted in Autumn 1987, apparently by the Kurahaupo Waka Society, as a means of avoiding boundary disputes and coordinating the northern (Te Tau Ihu) response to Ngai Tahu's claim in wai 27. A meeting was held in the Nelson Marae (meeting house) on 10 th October 1987, attended by people from a number of Te Tau Ihu iwi, including Kath Hemi (a resident of Blenheim on the East Coast), Dr John Mitchell and Kenehi Taylor. A collective challenge to Ngai Tahu's claim to the West Coast up to Kahurangi was identified, paralleling that by then already made by Rangitane interests through the Kurahaupo Waka Society. At another meeting (hui) in October 1987 Kath Hemi and Kenehi Taylor (c/o J. Bradley) were identified as Ngati Apa representatives. There were further meetings during 1988. One on 26 th March 1988 was attended by Kath Hemi, Kenehi Taylor, Mrs Kuini (Mai) Haeta, Hohua Macdonald and Michael Bradley, all apparently signing or accepting some role as Ngati Apa people, as well as others including Barry Mason (who had Ngati Apa and other affilations) and Merv Sadd.
After its formation, Te Runanganui, now represented by Mr Stevens, filed a claim with the MAC on 27 th April 1989. The claim named tribal representatives including Kath Hemi for Ngati Apa and over-lapped on both coasts with the...
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