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Back to the future? Judicial activism in the Ngāti Whātua Ōrākei case

The principle of non-interference by courts in parliamentary proceedings is one of the fundamental tenets of our modern democracy in New Zealand and sits at the core of the separation of powers between the judiciary and the State.  However, the ability for the government Ministers to rely on the principle to resist judicial review has been narrowed by a recent decision of the Supreme Court ([2018] NZSC 84) in the long-running dispute between Ngāti Whātua Ōrākei and Marutūāhu iwi over their respective Treaty of Waitangi settlements.  The decision demonstrates a willingness by the Court to more readily “rock the boat” in circumstances such as this.

Background to the proceedings

Ngāti Whātua Ōrākei brought judicial review proceedings against the Crown’s actions in the course of reaching agreement with two Marutūāhu groups, Ngāti Paoa and the Marutūāhu Rōpu, to settle their historical Treaty of Waitangi claims.  The impugned decisions relate to the proposed transfer of land within the central Auckland region to those groups, and the application of the Crown’s “overlapping claims” policy to those transfers.  The overlapping claims policy directs disputes between different iwi or hapū groups as to settlement redress to be resolved first by the groups themselves, and failing that, by a decision of the Minister for Treaty of Waitangi Negotiations.

Ngāti Whātua Ōrākei sought declarations to the effect that they have ahi kā and mana whenua in relation to land within that region;  that when applying the overlapping claims policy, the Crown must act in accordance with tikanga, and in particular Ngāti Whātua Ōrākei tikanga (and a process for determining that); and that the Crown’s decisions were inconsistent with its obligations as pleaded.  The respondents successfully applied for strike-out in reliance on the principle of non-interference with Parliamentary proceedings (and/or the “comity” principle), and the Court of Appeal upheld that decision.  Ngāti Whātua Ōrākei obtained leave to appeal to the Supreme Court.

The majority of the Supreme Court allowed the appeal in part, while the Chief Justice would have allowed the appeal in full.  The matter has been remitted back to the High Court.

The scope of the principle prior to Ngāti Whātua Ōrākei

The principle of non-interference in parliamentary proceedings derives from Art 9 of the 1688 Bill of Rights, which affirms elected representatives’ rights to discuss and debate whatever they wish within Parliament.

New Zealand courts have historically been reluctant to delineate between executive and legislative action of Ministers or their officials when considering the non-interference principle.  In early Treaty settlement cases such as the Sealords decision (Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 (CA) at 307–308), Cooke P left open whether the principle arose as a matter of practice or jurisdiction.  What was clear, however, was that a Court cannot impeach Parliamentary proceedings by seeking to cast doubt on the accuracy of Parliament’s understanding in passing legislation (Pickin), nor seek to prevent the introduction of a Bill to the House of Representatives (Sealords).  Neither party in this disputed these principles before the Supreme Court.

The Crown relied on the Court of Appeal’s 2005 formulation of the non-interference principle in Milroy v Attorney-General [2005] NZAR 562 (CA), where the Court invoked the non-interference principle on the basis that by considering a claim by cross-claimants to another iwi’s Treaty settlement to be implemented through legislation, the Court would be impermissibly drawn into “the very heart of the policy formation process of government” (at [28]).  Milroy also established that the non-interference principle is invoked by “function” of the impugned action, rather than its remoteness from the legislative process (at [17]).

More recent High Court cases questioned the arguably expansive version of the principle set out in  Milroy.  For example, Port Nicholson Block Settlement Trust v A-G [2012] NZHC 3181; and Te Ohu Kai Moana Trustee Ltd v A-G [2016] NZHC 1798 both establish that the Court can reach a determination on “rights and interests” (for example as to compliance with a settlement deed or Act, or whether the Treaty and the Fisheries settlement carried with them obligations to avoid devaluing the settlement) without offending the principle.

The contest in the Supreme Court was essentially between these two diverging lines of authority.

The majority’s decision

The majority held that it was possible to identify in the claim “public law decisions which can be the subject of challenge (whatever their ultimate merits) without interference in parliamentary proceedings”.  On that basis, the majority held the Court of Appeal was wrong to characterise the relief as a challenge confined to the legislative proposal to transfer properties (only).  It also sounded “a note of caution” at the extent to which the principle has been held to apply to decisions “somewhat distant” from the traditional examples of introducing legislation or debating in the House.  In particular, decisions could be made (with some repleading) on the extent of Ngāti Whātua Ōrākei’s ahi kā and mana whenua status; as to its rights arising from its Treaty settlement legislation; the application of the Crown’s overlapping claims policy; and under collective redress it was a party to.

However, challenges to the particular decisions to transfer land (which were to be given effect to through legislation) breached the principle and the majority upheld the lower Courts’ decisions to strike them out.  While the majority does not define the boundaries of the non-interference principle, it casts doubt on the use of the principle (cf Milroy) as a shield to Treaty settlement decision-making that affects existing and demonstrable rights and interests.

The Chief Justice’s view

The Chief Justice (in a dissenting judgment) went further, holding that she would have permitted the full suite of relief (including declarations as to the decisions to transfer land) to be argued at trial.  Her Honour held that the contemporaneous consideration of legislation itself was not (and perhaps never was) a bar to consideration, regarding any cases that suggest as much “with some scepticism in 2018”.  On the proviso that the Court “does not seek to preclude parliamentary consideration”, she held that the determination of present rights would not constitute an interference with proceedings in Parliament.  Rather, her Honour held that it was entirely appropriate for the courts to provide information as to existing rights and interests that Parliament could consider in the legislative process.

So where does that leave us?

Consider the following prayer for relief: “clause 8 of Bill XYZ should not be enacted because it breaches my right to natural justice”.  No one, even the Chief Justice, appears to be suggesting that would pass muster in 2018.  However, what appears to be developing is a more nuanced approach to the litigation of rights and interests affected by proposed legislation, and an increased willingness from the Courts (at least, at the highest level) to consider such issues.     Consider again the same prayer for relief, cast with that in mind: “the decision by the Executive to do X, currently proposed to be implemented through clause 8 of Bill XYZ by Parliament, breaches my right to natural justice”.  The Treaty settlement area (although now winding down) would appear to be fertile ground for future challenges, given its necessarily hybrid political and legal character.  In the author’s view, the Ngāti Whātua Ōrākei decision is a bold step (in the same ilk as the Lands and Fisheries decisions, which framed the modern approach to the Treaty) which may breathe life into the next great policy debates in our Courts.  Put another way, it is judicial activism in judicial orthodoxy’s clothing.

By Aidan Cameron