BEFORE THE WAITANGI TRIBUNAL WAI 900 IN THE MATTER of the Treaty of Waitangi Act

1975

AND IN THE MATTER of a claim by Te Rarua

McClutchie-Morrell

MEMORANDUM OF COUNSEL – BOYCOTT OF AIRING OF GRIEVANCE HEARINGS

Dated: 24 August 2011

Kathy Ertel & Co Barristers and Solicitors

PO Box 27042 Wellington

6021

Counsel appearing: Linda Thornton

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MAY IT PLEASE THE TRIBUNAL

1. This reply is filed on behalf of the urgency applicants:

Wai 901 Laura Thompson, Te Papatipu o Uepohatu claim

Wai 1171 Albert Beach, The Manutahi A23 claim

Wai 1272 Rapata Kaa, The Ruawaipu Active Protection

Claim

Wai 1275 Renata Tawhai McClutchie, Te Whānau a

Umuariki and East Coast Wars claim

Wai 1285 Stephen Beach, The Ruawaipu Income Tax and

Revenue claim

Wai 1332 Victor Beach, The Ngāti Uepohatu Ethnic

Suppression Claim, and

Wai 1381 Te Rarua McClutchie-Morrell, Ngāti Uepohatu

Lands and Resources Claim,

―the claimants‖.

2. Pursuant to the Memorandum-Directions of the Presiding Officer (Wai 2340,

#2.5.2), three memoranda (representing 10 claimants)of opposition have been

received, one from each of the Crown (#3.1.9), Te Runanga o Ngati Porou

(TRONP) (#3.1.8) and 7 East Coast claimants that support the settlement

(#3.1.11). There were 24 claimants who support the application (##3.1.3,

3.1.5, 3.1.6, and 3.1.12).

3. There are two main bases raised in opposition to the urgency:

i. The assertion that the hearings are still underway and therefore no

Tribunal intervention is warranted; and

ii. The Tribunal cannot or should not intervene due to the pending Ngati

Porou Claims Settlement Bill.

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4. We address both of these issues below. We also address application of the

case Haronga v. Waitangi Tribunal1 to the claimants’ contentions that they are

entitled to a hearing and to support the relief requested.

The hearings

5. It is mainly the Crown that asserts the argument that because there are going to

be other hearings in the future, the claimants cannot make out the elements

needed to warrant the exercise of the Tribunal’s urgency intervention.

6. To support this contention, the Crown submitted a brief of evidence of Marian

Smith, an OTS official, to outline the Crown’s version of the evolution of the

Airing of Grievance hearings. Ms. Smith’s evidence deserves a few

comments.

Consultation process

7. Ms. Smith concedes that the details of the Airing of Grievance hearings were

agreed between TRONP and the Crown. The Crown has deemed TRONP to

represent claimants, when the Crown knows the opposite to be the case. Ms.

Smith’s evidence describes a process whereby written comments were

submitted by claimants and/or their counsel in regard to the Airing of

Grievance hearings. The comments are summarised without including the

substance of these submissions. Counsel is aware that numerous objections to

the proposed format were submitted, but they are not described or attached to

Ms. Smith’s evidence. Although one submission of several, counsel’s

submissions is attached as Exhibit C. [what is the poin of refering to this?]

Among other things, it was submitted that 10 days of hearing time was likely

to be insufficient. Lead time for preparation was raised as an issue as well as

the amount of time needed to present grievances related to the claims.

Demand was made for a hearing equivalent to a Tribunal hearing.

8. On 29 July 2011 OTS responded by letter which addressed some of the

comments it had received on the Airing of Grievance process. A copy is

attached as Exhibit D to Ms Smith’s evidence. The response to all issues

1 Haronga and others v. Waitangi Tribunal and others SC54/2010 [2011] NZSC 53

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raised on the format of the hearings was that the facilitator would provide a

report to participants and transcripts of the presentations would be submitted

to participants for checking before publication.

9. These comments do not respond to issues raised concerning natural justice

requirements for a fair hearing.

10. This letter also announced that Sir Wira Gardiner would be the facilitator and

solicited nominations of co-facilitator. The claimants we act for and others

like them were concerned about Sir Wira’s close ties to Ngati Porou. They

felt the facilitator should be neutral. Counsel was instructed to object to OTS

about the facilitator. This was done by letter dated 16 August 2011, attached

as Exhibit E to the Smith evidence which also suggested alternative

facilitators. In response an email message was received the next day from

Crown OTS officials:

―Kia ora Linda Thanks for your letter. The points you raise

are noted. Nga mihi Ron.‖ [Exhibit F]

11. The Crown’s response was to set fewer than 3 days’ hearing time and allocate

20 minutes per submitter on one weeks’ notice. No co-facilitator was ever

named.

Hearings are not an alternative remedy

12. It cannot be said that the Crown’s plans to have the remaining 9 days of

hearing is an alternative remedy. The assertion ―Further hearings are being

organised under the Airing of Grievance processes‖ does not address the

substantive defects raised in this urgency application, namely that the

Claimants want and are entitled to a Tribunal Inquiry into their claims.

13. The issue of the Airing of Grievances hearings is a good example. Ms.

Smith’s evidence was

The Minister for Treaty of Waitangi Negotiations gave a

closing address to the hui at Te Araroa on 25 August. He

issued an open invitation for claimants who had declined to

attend to contact his office so that a mutually convenient time

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could be arranged for the claimants to present their

submissions to him in person. . . .

14. This passage is a bit confounding. The people whom he was addressing were

not there. Nor have they been otherwise informed until the Marion Smith

Brief of Evidence was served on counsel. Neither TRONP nor OTS informed

claimants or counsel.

15. In fact, the first clue given that there would be further hearings was found in

the 1 September 2011 update by whom (Wai 900, #3.1.432). Even though the

Crown asserts at paragraph 15 of its Memorandum (Wai 2340, #3.1.9) that

―officials are seeking renewed expressions of interest‖ neither the claimants

nor counsel have received any contact from the Crown on this issue.

16. At paragraphs 18 – 20, the Crown asserts that the claimed prejudice is really a

result of the ―decision by Ngāti Porou collectively‖ to settle the claims. The

Crown further asserts that the previous Tribunal urgencies have addressed

these issues. In fact, Ngāti Porou may have collectively decided to settle its

claims the problem, not addressed, is that the Crown is also permitting Ngāti

Porou to settle the claims of those who are not Ngāti Porou. The issue of

tribal identity has never been heard or decided.

Potential prejudice persists

17. Moreover, the question of loss of tribal identity and loss of land are alleged in

this application as prejudice resulting from the failure to hold hearings. The

previous urgency hearings claimants have participated in concerned mandate,

as well as an application to review the ratification (Wai 2311), which was

declined. These issues were all part of the conveyor belt that draws the

claimants closer to the ultimate prejudice that arises from Tribunal

proceedings—legislative change of their tribal identity and transfer of their

land to others. It is as if the Waitangi Tribunal had heard their claims and

decided that they were not well-founded. However, no such hearing has ever

been held nor such findings made

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18. To suggest that claimants are somehow part of ―Ngāti Porou collectively‖

deciding to settle claims is a complete fiction that has been perpetuated by the

Crown and should not be accepted by the Waitangi Tribunal.

19. Claimants have a right to a hearing under section 6 of the Treaty of Waitangi

Act 19752 and there is nothing found in New Zealand statutory or case law

that supports the notion that Crown policy can override the claimants’

statutory and natural justice rights to a hearing.

20. For example, the Crown asserts that there will be plenty of time to prepare

because the hearings will be sometime after the general election. [Wai 2340,

#3.1.9, para 23] This is not the same as promising adequate notice. OTS

originally announced that these hearings would be held in July. Holding them

in August does not automatically provide adequate notice—in fact, claimants

and counsel were only given one weeks’ notice of the actual dates of the

hearings. So saying now that a hearing is going to take place after the

election, is not the same as giving adequate notice of the hearings.

21. And to say that the hearings had been publicly ―known‖ is completely

misleading. The actual dates of the hearing were not known and in fact, the

Crown’s silence for over 6 weeks led to a great deal of confusion and anxiety

in the claimant community. Claimants had heard through informal talk that

there might be only 3 days of hearings. Claimants raised this at the Select

Committee meeting. There was another rumour circulating among the

claimant community that the hearings might be extended back to the 10 days

described in the Deed of Settlement. There was simply nothing from the

Crown that gave counsel or claimants any real guidance on what to prepare

for. The claimants intend to inform the Crown of the bases for their claims.

This cannot be done in 20 minutes and it cannot be done with 1 week’s

preparation.

22. And the Crown has said absolutely nothing about how it will determine the

length of time for presentation of claims. This is particularly worrying in light

of the fact that attention was given to inform the Crown about claims that

2 All subsequent citations to statute are to the Treaty of Waitangi Act 1975 unless stated otherwise.

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would require substantial time. In this regard, at OTS request, Counsel

provided some detail (beyond filling out the registration form) about the

presentations of various claimants she registered. This effort proved to be a

complete waste of time because in fact OTS was all set to issue a 20 minute

slot whether a claimant was presenting about the loss of a one-acre block or

the entire tribal identity and papatipu of Ngati Uepohatu. Preparation to make

a 20 minute presentation is quite different to that for a thorough presentation.

The Crown had all the information but it shared very little with the claimants.

23. And the effort to solicit information from counsel, in our submission, was

meant to be misleading. It was meant to appear that OTS was giving

consideration to the relative presentation needs of the presenters. There is no

such reflection in a schedule of 20-minute time slots to everyone.

24. Despite assertions that the hearings are still to be held, the Crown has carefully

avoided agreeing not to do the same things again. We note the Crown’s

unhelpful suggestion that claimants can reapply for urgency if the next plan

does not work out. [Crown memorandum, #3.1.9, para 30]

25. In fact, it appears that the Crown is trying to reinvent history with the pretence

that hearings have only begun while glossing over the fact that had claimants

not boycotted the hearings and filed this urgency application, they would have

been subject to a 20 minute presentation and then wiped out of history forever

by legislation.

26. Ultimately, then, the claimants find themselves back to where they were on

1 May 2011 just before the Crown revealed the details of the Airing of

Grievance hearings and requested their comments. The only difference is they

are now down one day – to 9 days – and the Crown is proposing to again hear

those who have already presented! [Brief of Evidence of Marian Smith, para

18.2]

27. Although the Crown’s memorandum refers to developments after the urgency

application was filed [para 14], there is in fact very little that has changed.

The Crown has not offered any assurances or any other format change that

should lead this Tribunal to the conclusion that anything is different than it

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was when this application is filed. In fact, it is precisely because the Crown is

not being forthcoming that the Tribunal’s jurisdiction is being invoked. The

Crown’s comments ―further hui to be organised for the period after the general

election‖ are likewise not helpful. There is presumptively an eternity of time

after the general election and claimants are entitled to have a clear idea of

when their claims are to be heard, and some reasonable assurance that they

will be given adequate time to present their grievances—this is their only

opportunity to address the Crown to establish their Treaty grievances and they

intend to do so.

Claimants seek natural justice hearings

28. And to avoid doubt, claimants are not merely seeking Airing of Grievance

hearings. Claimants are seeking a proper natural justice hearing as guaranteed

to them under s 27 of the New Zealand Bill of Rights Act 1990. Submissions

to OTS have raised the fact that claimants are entitled to a hearing under s 6.

Under some formats, the airing of grievance hearings may have met natural

justice standards; under the status quo, there is nothing to suggest that

claimants’ rights to a hearing are being protected.

29. The Crown’s memorandum [Wai 2341, #3.1.9, para 22] is very open about the

fact that the Airing of Grievance process is not about natural justice where

―formal evidence is expected to be marshalled and briefed in support of a legal

case.‖ It has been made clear that the Crown will not be engaged in Cross-

examination and there will be no technical witnesses, nor will the Crown

present evidence to support its contentions. This is because the Crown has

already decided what it will do to settle these claims.

30. For the claimants, however, the Crown is acting without full information and

they intend to put on the record before the Crown the facts about their tribal

identity and their ownership of land. This is the claimants’ opportunity to be

heard; a denial of this right is a violation of their natural justice rights, s 6, and

s 27(a) and (c) of the New Zealand Bill of Rights Act 1990.

31. Of importance to this issue is the case Haronga v. Waitangi Tribunal. This

case addressed an application for urgent hearing and how the Waitangi

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Tribunal should exercise its jurisdiction. It has been suggested that the

Haronga decision’s protections are offered only to those who have received a

Tribunal hearing with a finding that their claims are well-founded.

32. This narrow reading of Haronga is not supported by the text of the case itselef.

The Supreme Court in Haronga held that even after a hearing which resulting

in a finding that that the urgency applicant’s claim was well-founded, the

Tribunal could not avoid granting hearing on a resumption application.

It is the principal function of the Waitangi Tribunal to inquire

into and make recommendations on claims submitted to it

under s 6 of the Treaty of Waitangi Act. With limited

exceptions, the Tribunal is obliged to inquire into every claim.

This involves determining whether the claim of Crown action

inconsistent with the Treaty of Waitangi is well-founded, and

if so, whether the Tribunal should recommend to the Crown

that action be taken to compensate for or remove the prejudice.

While the Tribunal is not obliged to recommend a remedy for

all claims it has decided are well-founded, it is required to

determine whether it should do so. Its recommendations may

either be in general terms or indicate specific actions which, in

the opinion of the Tribunal, the Crown should take. Each of

these steps if s part of the inquiry which it is the Tribunal’s

duty to undertake. The obligation to inquire into each claim is

not discharged by a determination that the claim of Treaty

breach is well-founded.3

33. The Tribunal has a duty to hear all claims, including those of claimants. It is

evident from Haronga that the duty to hear a claim arises from inception; it is

not limited to applications that arise after a decision that a claim is well-

founded. The duty to hear arises from statute, not from an earlier finding of

well-foundedness.

3 Haronga, para 80.

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34. The Haronga court based its holding on the statutory history of the Treaty of

Waitangi Act 1975 and 1988.

A purpose of the 1988 Act was accordingly to protect both

existing and likely future claims submitted to the Tribunal. . .

. [¶] Implicitly, Parliament, like the Court, was concerned to

protect such claims on an individual basis.4

35. The purpose of s 8HB was described by the Court

The purpose accordingly was to protect claimants by

supplementing their right to have the Tribunal inquire into

their claim with the opportunity to seek from the Tribunal

remedial relief which would be binding on the Crown.5

36. The resumption application then is a remedy that may be invoked after a

finding that the relevant claim is well-founded. The Haronga Court found that

claimants had a right to a hearing and further that their rights were not

discharged by entering into negotiations after a finding of well-foundedness.

37. In fact, Haronga found

Given the statutory obligation, discussed above, to inquire into

every claim and consider making recommendations where

they are well-founded, the general findings and indications

given in the report cannot fairly be read as fulfilling the

responsibilities of the Tribunal under s 6(2) and s8HB(1).

[Emphasis added]6

38. The Court recognised that there was a difference between the recommendatory

powers and binding powers and concluded that:

Where matters reach a stage, as here, where settlement will

defeat the claimants’ right to have resumption determined by

the Tribunal, the fact that the compulsory jurisdiction is

4 Haronga, paras 65, 66

5 Haronga, para 76, citing s 6(2) Treaty of Waitangi Act 1975 6 Haronga, para 95

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invoked cannot be irrelevant. . . . It could not be in the spirit

of the legislation or its policy of providing greater security to

Māori claimants in obtaining return of land to treat the loss of

the opportunity as irrelevant. It was itself a right of real value.

. . . 7

39. The refusal to permit a hearing where claimants present their claims is part of

the ultimate grievance because denies claimants the opportunity – the only

opportunity they will ever have—to present to the Crown their claims about

their rights to recover their land.

40. The Crown has been heard to allege the right to resumption and the rights

recognised by Haronga only apply after the tribunal has found their claims to

be well-founded. Any denial of process that denies them the right to establish

that their claims are well-founded ultimately denies them the right to the

remedy of resumption and violates the principles recognised by Haronga.

41. Claimants here will never get to a resumption hearing unless their rights under

s 6 Treaty of Waitangi Act 1975 as recognised by Haronga are protected.

Claimants have not yet had a finding of well-foundedness on their claim or

claims, but this is through no fault of their own. To say that protections of the

right to seek resumption of land only accrue after a finding of well-

foundedness would put the Crown in a position to be able to defeat these rights

by intervening to avoid the hearing process—effectively putting the cart

before the horse.

42. There is nothing in statute or case law to suggest that the Crown can elevate its

policy over the plain language of section 6. If a claimant has a right to seek

return of land, that claimant also has a right to get through the antecedent

hearing process to obtain a finding that her claim is well-founded in order to

support the resumption application. These are the steps of the inquiry that the

Tribunal has a duty to undertake.

7 Haronga, para 106

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43. Moreover, the Crown should be estopped to deny that the claimants’ claims

are well-founded. It has negotiated a very substantial settlement with

TRONP/Te Haeata partly on the basis of those claims.

44. We note that Haronga also held that claimants have a right to withdraw their

mandate for negotiations.

We consider that there was no legal compulsion for Mr.

Haronga and the proprietors of Mangatu Incorporation to

remain within the settlement process. 8

45. The Haronga mandate was affirmatively given and negotiations begun on that

premise. The filing of an urgency application by Mr. Haronga was interpreted

by the Court to amount to withdrawal of mandate.

46. In this case, the claimants are certainly entitled to the same protections. They

have never rested in their efforts to obtain hearings and determination that

their claims are well-founded and seek return of their land. Yet, instead of an

affirmative grant of mandate, these claimants have been deemed to have given

their mandate. This is so despite their objections from the very beginning of

the process in 2007 that have continued until now. They have filed and

participated in an urgency hearing on the mandate issue, they have filed an

application with the Maori Land Court under section 30 et seq of Te Ture

Whenua Maori Act 1993, they have filed an application for urgency to review

the ratification, they have contacted the United Nations Special Rapporteur on

the rights of indigenous peoples, who recommendation that ―special measures‖

be implemented for these claimants. They have written letters and carried

petitions. They appeared at the Select Committee meeting only to be told that

the Committee wasn't interested in their whakapapa or their claims.

Separately or together, these acts constitute a withdrawal of their mandate –

the mandate involuntarily imposed on them.

47. And the deferral of the Wai 900 inquiry should not be an instrument of the

termination of the claims. The Haronga court addressed this issue:

8 Haronga, para 99

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It follows from this statutory scheme that the power under s

7(1A) cannot be used, consistently with its purpose, in order to

defeat a claim, in the sense of precluding it from being the

subject of an inquiry or precluding completion of that inquiry.

In that respect, an inquiry into a claim is not complete until the

Tribunal has determined whether the claim is well-founded

and, if so, whether it should recommend a remedy. . . .

But the exercise of the s 7(1A) power for scheduling reasons

or to permit negotiated settlement does not end the inquiry. It

does not remove the Tribunal’s obligation to complete an

inquiry by adjudicating on whether it should make remedial

recommendations for claims that it has decided are well-

founded. If settlements do not eventuate or if irremediable

prejudice to the claimants will result from deferral for

scheduling purposes, the Tribunal must reconvene its

adjourned inquiry to adjudicate on whether recommendations

should be made.9

48. In this case the claimants will suffer irremediable injury. Their papatipu lands

will be given to others and their identity legislated into obscurity.

Deed of Settlement

49. The Crown has asserted that the Deed of Settlement cannot be enforced as it is

not yet final.

50. To begin with, the Crown asserts that claimants are bound by the Deed of

Settlement because it was Ngāti Porou who negotiated it and they are defined

as Ngāti Porou. This, however, is circular logic—TRONP/Te Haeata

negotiated something that defined someone else so they can’t complain about

what was negotiated. This definition is not the definition that Claimants have

for themselves. They define themselves as Ruawaipu iwi (Wai 1272 and

1285) and Ngāti Uepohatu iwi (Wai 901, 1171, 1275, 1332 and 1381). The

Crown calling them Ngāti Porou does not magically make it so.

9 Haronga, paras 84, 87

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51. The Crown then asserts that because they have defined the Claimants as Ngāti

Porou and they are therefore bound by the Agreement, they are particularly

bound by the provision that ―the parties‖ have reached that prevents use of the

deed in evidence before a tribunal.

52. Claimants do not feel particularly bound by this provision inasmuch as they

have not agreed to it, but should the Tribunal feel compelled to apply these

provisions, Claimants must then point out that there would be no evidence of

any hearings, past or future–even the watered down Airing of Grievance

hearings that the Crown may ultimately plan to provide. Accordingly, there

would be nothing before the Tribunal that would indicate that there are any

hearings of any type that address the statutory hearing under s 6.

53. Moreover, the application does not address the Bill. It addresses the issue of

rights to a hearing. It addresses Crown conduct in preventing claimants from

getting the hearing they seek to prove their claims are well-founded and seek

redress of their grievances in the form of return of their land.

54. The application also addresses the grievances and the conduct of the Crown in

perpetuating them. Had the Wai 900 hearings not been cut off before the

Deed of Settlement was concluded, the Crown might have been able to deal

with the evidence of original land ownership and tribal identity in its

settlement—as the Treaty grievance process was set up to work. Instead, the

Crown is now faced with the spectre of committing another Treaty breach of a

magnitude no less than the Treaty breaches it claims to be settling.

Relief requested

55. Accordingly, claimants request that the Tribunal recommend that the Crown

hear claimants’ claims in hearings that meet the minima of natural justice,

including an opportunity to be heard to adequately set forth their claims,

including adequate preparation and presentation time, a neutral hearing

officer, and a final report to the Crown on the merits and substance of their

claims, in essence an inquiry pursuant to s.6 of the Treaty of Waitangi Act

1975. Claimants also request that this application be set for judicial

conference, if necessary, to determine whether to grant a hearing and

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if so, under what conditions.

Dated this 28th

day of September 2011 at Auckland.

Linda Thornton – Counsel