Ngati Apa Ki Te Waipounamu Trust v. Attorney General & Ors (New Zealand ) [2006] UKPC 49 (30 October 2006)

Privy Council Appeal No 83 of 2005

Ngati Apa Ki Te Waipounamu Trust					Appellant
v.
The Attorney General
Maori Appellate Court
Te Runanga O Ngai Tahu	Respondent

FROM

THE COURT OF APPEAL OF
NEW ZEALAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 30th October 2006

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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Hoffmann
	Baroness Hale of Richmond
	Lord Brown of Eaton-under-Heywood
	Lord Mance
	
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		[Delivered by Lord Mance]

Introduction

1.	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 12th 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.

2.	The appellant, Ngati Apa Ki Te Waipounamu Trust (“the Trust”), was formed on 9th 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

3.	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 19th May 1999. 

4.	The MAC proceedings originated from a case stated under section 6A of the Treaty of Waitangi Act 1975 by the Waitangi Tribunal on 17th 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 6th 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 6th 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”.

5.	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. 

6.	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 2nd 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. 

7.	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 10th 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. 

8.	The first hearing of Ngai Tahu’s claim in wai 27 took place before the Waitangi Tribunal on 20th 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. 

9.	In a further amended claim dated 5th 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 25th June 1998 they complained about infringements of marine fisheries rights extending to Kahurangi Point in the north. 

10.	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 21st September and 5th November 1987, the Tribunal issued a preliminary decision dated 26th 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 1st January 1989, was inserted into the Treaty of Waitangi Act for this purpose. A case was on 17th 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?”

11.	On 10th 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.  

12.	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 10th 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 26th 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.

13.	After its formation, Te Runanganui, now represented by Mr Stevens, filed a claim with the MAC on 27th April 1989. The claim named tribal representatives including Kath Hemi for Ngati Apa and over-lapped on both coasts with the claims being maintained by Ngai Tahu. At a preliminary hearing on 15th May 1989 Mr Stevens sought joinder in Ngai Tahu’s claim of Te Runananganui as “cross-claimants”, and an issue emerged as to whether he or Mr Sadd represented the Kurahaupo Waka Society, described by Mr Sadd as in turn representing the Rangitane ki Wairau (or Te Runanga Rangitane o Wairau) group of Rangitane. The MAC said that: 

“As the Court sees the position, it is effectively determining the tribes or hapu that could be the owners of the disputed lands, therefore any person holding himself out to be a claimant must be representing a hapu, a sub-tribe or a tribe. There will no appearances by persons claiming on their own behalf, they must also be able to demonstrate that they are a duly appointed or elected representative of the respective hapu or sub-tribe”. 

A hui was held by Te Runanganui on 17th June 1989, at which “there was a full attendance of delegates from all the nine tribes having membership of [Te Runanganui]”. The MAC’s attitude was reported as being that the MAC expected iwi and hapu to convene hui which were widely advertised, publicly and through networks, widely representative of iwi and hapu and properly minuted and which would confirm kaumatua (elders) or other representatives to present evidence.  

14.	On 7th August 1989 Frank Macdonald as kaumatua (elder) called a meeting of people from Kurahaupo iwi including Ngati Apa, at which it was resolved that Mr Stevens should represent the Kurahaupo Waka Society, rather than Te Runanganui. By 10th October 1989 the Kurahaupo Waka Society was insisting to Mr Stevens that he should act for it alone before the MAC or not at all, and he gave notice to the MAC that he could no longer act at all. At a further hearing on 13th October 1989 the MAC ruled, in the context of applications made by Mr Sadd for the Kurahaupo Waka Society, that

“To our knowledge there is no known tribe, sub-tribe or hapu of that name therefore the Court will require evidence that this body corporate has been appointed by Kurahaupo or whatever iwi or hapu it represents to be its spokesman. The evidence the Court will be looking for would we believe be records of iwi/tribal meetings where the matter was discussed and the Society authorised to act. The Court will also wish to know the composition of the Society – members and tribal affiliations, office holders and then [sic – quaere: their] tribal affiliations and any other things that can help it in its determining whether the Society is properly representing ‘a tribe, sub-tribe or hapu’”.

Mr Sadd was given leave to file affidavit evidence on such matters before 31st October 1989.  

15.	On 17th and 18th November 1989 Te Runanganui held its first annual general meetings of kaumatua and members, at which Kath Hemi put forward June Robinson and Gordon McLaren as Ngati Apa delegates in their absence, but she and Duncan Wilson were in the event named as proxies for the day.

16.	A further procedural hearing took place before the MAC on 20th November 1989, where Mr Sadd again appeared for the Karahaupo Waka Society, Dr John Mitchell (who was an expert Maori researcher) appeared “as a lay person” for Te Runanganui while Mr McVeigh of counsel appeared for Ngati Toa. Prior to the hearing, Dr Mitchell submitted a lengthy and detailed memorandum dated 7th November 1989 recounting the difficulties of representation, funding and time which Te Runanganui had experienced, but culminating with an outline of, and some of the evidence for, Ngati Apa’s claim to an interest in the West Coast south of Kahurangi Point. The judge introduced the hearing by saying that:

“The manner in which the court intends to proceed this morning is initially for the various claimants to establish their bona fide[s] that is to establish that they are representing a tribal group that is entitled, a tribe, iwi [or] hapu that is entitled to be heard on this issue.”

Mr Sadd, Dr Mitchell and others gave evidence. The effect of Mr Sadd’s evidence was that he was acting for Te Runanga Rangitane o Wairau, and not for the Kurahaupo Waka Society. The MAC ruled accordingly that the Kurahaupo Waka Society was not before it, and that Mr Sadd could pursue a claim for Te Runanga Rangitane o Wairau (as distinct from Te Runanganui).  

17.	Dr Mitchell in his evidence explained the formation of Te Runanganui to represent nine South Island iwi as follows:

“Our member tribes are Ngatikoata, Ngatikuia, Ngatitama, Ngatirarua, Te Atiawa, Rangitane, Ngatiapa, Ngati Toa and Ngati Waikouri. We have an executive committee of 18 being two from each of those nine iwi and we operate with as much authority as each of these member iwi are prepared to give us through their delegates. We are not there to supersede the rightful business of individual iwi of what is essentially their own iwi business and so there are committees, trust boards and whatever that each of those iwis have formed for their own iwi business and they instruct us through their delegates that join in making up that committee of 18. From that committee of 18 are the annual general meeting elects office holders including our President, Mr Jim Elkington, beside me Sir and myself as Vice President, our Secretary and other officer holders plus an executive committee of I think 7 of us. The office holders plus 3 who can deal with business that is rather more urgent than cannot easily be dealt with by bringing together all of the delegates.

We have an additional Kaumatua council of who [sic] Mr Pene Ruruku is our Chairperson …. In the matter of our land claims, perhaps it was our intention to try to coordinate in the top of the South Island the research but certainly not to advance ourselves as an organisation. It was always believed that when the time came for presentation of research material to the Waitangi Tribunal, that iwi by iwi their chosen representatives would present their case and our job was just try to expedite that by having myself as chairperson, convenor rather, of such a sub-committee with members from each of those iwi are put together the research necessary to prosecute our claims including boundary issues initially for the Tribunal…..

Mr Sadd has referred to the Rangitane situation where there are some apparent conflicts between various factions within Rangitane. That is not our concern primarily as a Runanganui. We accept as delegates to ourselves those people who come along with presumably authority from their iwi. It is not the business of the Runanganui to try to mix it with an individual tribe’s difficulties and to resolve it for them. They have to do that themselves. We do have representatives on Rangitane, they do claim to speak with a voice for a percentage of the Rangitane iwi, how high that percentage is I do not know and I don’t really wish to try to find out. That is a matter for them to resolve and the same may be said of any other iwi who has those sort of issues as an internal problem to resolve. 

I would have to say we have had a similar discussion I believe either Ngati Toa representation and that has been part of … a difficulty we have had as Runanganui in integrating the research issues and also the battle of legal representation. ….. Our lack of representation today stems from some of those difficulties.”

18.	The MAC, having heard evidence called by Mr McVeigh, accepted that Ngati Toa (one of the nine iwi which Te Runanganui had been formed to represent) should have the status of a separate party. As regards the remaining eight iwi, the MAC said:

“This then leaves Te Runanganui o Te Tau Ihu o Te Waka a Maui Incorporated as representing the other eight iwi listed in its claim dated 27 April 1989 filed with the Waitangi Tribunal. These eight iwi are members of the Runanganui and had any of them wished, like Ngati Toa, to have adopted a separate position, they would’ve done so. Four of these iwi have had their representation confirmed either in writing, there are two Ngati Tama and Te Atiawa, or by evidence of the Ngati Toa representative who are the Ngati Rarua and Ngati Koata. Whilst there is an assumption that Te Runanganui represents the other four, we nevertheless require written tribal authorisation within one month of today’s date.”

19.	There followed this exchange:

“Dr Mitchell: In the absence of tribal authorisation …. forthcoming from those four iwi not named, does that leave Te Runanganui still able to proceed on the behalf of those who are named?
Judge: Yes
Dr Mitchell: Thank you.
Judge: You can proceed on behalf of the eight which two by leave of Ngati Toa. Two that you have had meetings with and we expect you to continue to act throughout these hearings to produce the goods in relation to the other four. That’s all. ….”

20.	On 15th December 1989 Dr Mitchell wrote to the MAC enclosing materials relating to Ngati Kuia, Ngati Koata and Rangitane ki Omaka, but adding that:

“there may be some delay before Ngati Apa can hold their iwi meeting – their people are widely distributed between Marlborough, Nelson and the West Coast as far as Hokitika”.

21.	In February 1990 Mr Stevens recommenced acting for Te Runanganui and in June 1990 the substantive hearing took place over many days. Mr Stevens clarified that he had confirmed that there was no continuing conflict of interest. Extensive evidence was called on both sides. No witness living on the West Coast of the South Island was called in support of Ngati Apa’s interests, but Mrs Haeta, a Maori agent since 1951 and a North Island resident, gave evidence pursuant to two written authorities, one from the Rangitane Maori Committee and so presently immaterial, the other from the Ngati Apa Runanga or committee(s) in the North Island approving her activity on their behalf “in all land business pertaining to the South Island”. In giving her evidence, she indicated that she understood that she was speaking on behalf of “all the numerous Mahuikas”. The Mahuikas are a Ngati Apa family in the South Island, with which Mrs Haeta’s family have ancestral connection(s). Dr Mitchell in the course of his researches for the purposes of the MAC proceedings had contacted some of their West Coast descendants in late 1989 or early 1990 – including Mrs Mary Jane Wilson née Mahuika of Westport a kaumatua who died aged 90 in 1998, her daughter June Robinson and Mrs Wilson’s nephew Gordon McLaren, another kaumatua. Mrs Robinson records in her evidence that “I knew Kuini Haeta and had had contact with her over many years”.  

22.	The MAC’s decision delivered on 12th November 1990 went against Ngati Apa. The MAC held that any occupation of land by Ngati Apa people along the West Coast in land the subject of the Arahura purchase was by no more than a mere right of residence rather than by way of customary ‘take’, and that “The Ngai Tahu tribe according to customary law principles of “take” and occupation or use had the sole rights of ownership in respect of the lands comprised in both the Arahura and Kaikoura Deeds of Purchase at the respective dates of those Deeds”.  Following the MAC’s decision Te Runanganui petitioned your Lordships for special leave to appeal on the ground that the MAC had failed to consider certain evidence properly or at all, and in February 1991 Te Runanganui brought proceedings for judicial review against the Waitangi Tribunal, the members of the MAC, Ngai Tahu and others relating to the Tribunal’s decision to state the case to the MAC and the MAC’s decision  on the case stated. Your Lordships refused Te Runanganui’s petition in July 1991 and the judicial review proceedings were abandoned in November 1991. Also in 1991 the Waitangi Tribunal issed the Ngai Tahu Report 1991.  

23.	Prior to the issue of the MAC’s decision two hui of Ngati Apa people took place on the East Coast at the Omaka Marae in Blenheim on 7th August 1990 and 25th September 1990. The first had as its subject “Should Ngati Apa become incorporated?”. 15 persons were present including Kath Hemi as chair, Gordon McLaren, Frank and Judith Macdonald, Duncan Wilson and Michael Bradley. Gordon McLaren reported that “June Robinson I.T.A. Westcoast has over 300 names on the Mahuika line for Ngatiapa”. 12 persons attended the second, described as an “inaugural” meeting. Kath Hemi as chair, Gordon McLaren, Duncan Wilson and Barry Mason were among them. There was discussion about the relationship with West Coast Ngati Apa and a reference by Kath Hemi to a “Ngatiapa programme coming up that will take us all to Westport”. Kath Hemi regarded Gordon McLaren as a potential intermediary with West Coast Ngati Apa. There was also discussion about the relationship with Te Runanganui, with whom it was decided “to stay”, with a view to withdrawing “when we are ready”. 

24.	The first meeting of Ngati Apa people on the West Coast in the present context took place at Westport on 9th November 1991. Thereafter there were annual or sometimes more frequent meetings called at Westport, with between 10 and 50 Ngati Apa people present, organised predominantly by Kath Hemi and June Robinson. The present appellant, the Trust, was formed on 9th October 1992 specifically to embrace Ngati Apa people on both Coasts. Kath Hemi was the chair and there were three West Coast trustees: June Robinson, Audrey McLaren (Gordon McLaren’s sister) and Alice Fay Gilsenan-Batt (daughter of Gordon and Audrey McLaren’s aunt Hinemar McLaren, and so a cousin of Gordon and Audrey). The descendants of the Mahuika line of Ngati Apa therefore include the late Mary Wilson and June Robinson, June’s elder sister the late Iris Climo (all resident in Hokitika), their cousins the late Gordon McLaren and Audrey McLaren (resident in Greymouth) and the McLarens’ cousin Alice Gilsenan-Batt (resident in Westport), these towns all being on the West Coast. Mrs Gilsenan-Batt’s evidence that she and her four siblings have between them some 50 grand-children indicates an expanding family tree in recent years..  

25.	On 22nd March 1995 Kath Hemi on behalf of the appellant presented Ngati Apa grievances to the Crown at a meeting at the Omaka Marae, where she said that “We have found in the past that both the [MAC] and Tribunal hearings can be very confrontational to participating iwi” and mooted a possible challenge to the MAC decision. On 9th June 1995 the appellant filed with the Waitangi Tribunal a claim which by amendment on 6th July specifically defined the land claimed as running “to Kahurangi Point” on the West Coast (wai 521/95).  On 24th April 1996 Parliament enacted the Te Runanga o Ngai Tahu Act 1996 incorporating the third respondent to assume responsibility for the protection of the interests and assets of Ngai Tahu. Ngai Tahu’s takiwa (territory) was by s.5 of the Act defined as all the area of the South Island south of the northernmost boundaries described in the MAC decision (and in particular extending on the West Coast up to Kahurangi Point). On 14th June 1996 a Deed of “On Account” Settlement, and in October 1996 heads of agreement were signed relating to a proposed settlement between the Crown and the third respondent of Ngai Tahu claims. 

26.	In June and October 1997 Mr Crosby of Gascoigne Wicks, acting for the appellant, wrote to the Minister responsible for Treaty of Waitangi negotiations, requesting a meeting at which to explain Ngati Apa’s grievances regarding land and the MAC decision and requesting the Minister to postpone any settlement of Ngai Tahu claims pending the Waitangi Tribunal’s adjudication upon Ngati Apa’s claim. Both requests were refused. The Crown on 21st November 1997 executed a Deed of Settlement with the third respondent, and on 31st March 1998 introduced the bill which on 1st October 1998 became the Ngai Tahu Claims Settlement Act 1998. 
The current proceedings

27.	Meanwhile on 11th May 1998 the appellant had filed the current proceedings, in which it initially claimed relief on the basis of disparate resourcing before the MAC and matters other than lack of representation. The relief sought consisted in an order setting aside the MAC decision and a declaration that the Waitangi Tribunal when considering the Ngati Apa claim was not bound by the MAC decision. On 28th July 1998 Mr Crosby wrote to Mr Stevens’ firm, explaining that Gascoigne Wicks now acted for the Ngati Apa “which was one of the eight iwi in Te Runanganui ….. for which organisation your Mr John Stevens appeared in the 1990 litigation against Ngai Tahu in the [MAC]” and asking to inspect “any documents held on behalf of Ngati Apa”.  Only in the first half of 1999, as their Lordships have already stated, did the present issue of representation emerge as a discrete issue first in affidavits and then formally by the amendment dated 19th May 1999.  

28.	On 24th June 1999 the present proceedings were struck out as inconsistent with the Ngai Tahu Settlement Act 1998. But by judgment dated 8th May 2000 in Ngati Apa Ki Te Waipounamu Trust v. The Queen [2000] 2 NZLR 659 (Ngati Apa No. 1), the New Zealand Court of Appeal allowed the appellant to claim, instead of an order setting aside the MAC decision, a declaration that the MAC decision was invalid as against Ngati Apa. The Court of Appeal also indicated that the 1998 Act did not prevent Ngati Apa alleging before the Waitangi Tribunal that the MAC decision itself represented a breach of Ngati Apa’s Treaty rights. This latter conclusion was reiterated in a second decision in the Court of Appeal in Te Runanga o Ngai Tahu v. Waitangi Tribunal [2002] 2 NZLR 179. Whether the Court of Appeal intended in either case to go so far as to say that, even if the Waitangi Tribunal concluded that Ngati Apa had been fully and properly represented and heard before the MAC, Ngati Apa could then contend that the MAC decision was simply wrong might, in their Lordships’ view, still be open to some argument. However, their Lordships record what they understand to the common position of all counsel before them that the two Court of Appeal decisions leave the Waitangi Tribunal with a completely free hand in its recommendations. The Crown made clear to their Lordships that, while it would endeavour to accommodate a settlement with Ngati Apa that took account of any interests or claims that the Waitangi Tribunal might conclude that Ngati Apa had, it would feel itself constrained by the settlement already reached with Ngai Tahu. That does not mean that the Crown would be unable to make physical or monetary compensation of some nature for any legitimate grievance, but that this would have to be done in a manner consistent with the Crown’s existing commitment. Their Lordships cannot judge how far, if at all, this might operate as a real constraint, if it were to be concluded that Ngati Apa had proprietary interests in respect of territory, or in respect of off-shore fisheries rights, south of Kurahangi Point. (Entitlement to fisheries rights would, so their Lordships were informed, depend upon the different statutory scheme of the Maori Fisheries Act 2004 rather than upon the Treaty of Waitangi Act 1975.)   

29.	In her judgment on the issue of representation delivered 1st September 2002, France J said that the appellant’s case was that the MAC had an obligation to act fairly and in accordance with natural justice, and that the MAC had failed to ensure that Ngati Apa on the West Coast were heard (paragraph 118). On that basis, she considered the adequacy of the notice given of the hearing, the information before the MAC indicating “the Nelson Marlborough” (rather than West Coast) focus of Ngati Apa and the MAC’s approach towards Te Runanganui’s authorisation by iwi such as Ngati Apa, coupled with the absence of any evidence of a meeting of West Coast Ngati Apa to confer such authorisation. In each case, she concluded that there had been no breach of natural justice or failure to act fairly by the MAC. She did not find it necessary to consider whether Ngati Apa in the South Island were a single iwi.

30.	On appeal, the Court of Appeal, at para 76, accepted the submission made by Mr Mathieson QC representing the Trust, that

“contrary to what France J may have suggested ….., ….. the fact that the MAC had made no error did not mean that there was no breach of natural justice. … Compliance with natural justice is not to be assessed solely from the position of the MAC. As Lord Slynn of Hadley, for a unanimous House of Lords, said in R v. Criminal [Injuries Compensation] Board,  Ex parte A  [1999] 2 AC 330, 345, it is not necessary to find that anyone was at fault in order to decide that there has been a breach of natural justice. ‘It is sufficient if objectively there is unfairness.’”

31.	The Court of Appeal considered that the evidence, including Ngati Apa’s, supported the view that Ngati Apa in the South Island were a single iwi. That view was not challenged before their Lordships and they see no reason to doubt it. However, it does not mean that Ngati Apa of the South Island as a whole should be regarded as bound merely because East Coast Ngati Apa people or certain of them had relevant knowledge or involvement. The Court of Appeal thus rightly examined (1) whether Ngati Apa, including people on the West Coast, had knowledge of the MAC proceeding, (2) whether they knew of the scope of the Ngai Tahu claim and (3) whether they were represented by Te Runanganui and had given appropriate authorisation.  As to (1) and (2), the Court concluded that Ngati Apa, including Ngati Apa people on the West Coast, had adequate notice of the MAC proceeding and its scope. As to (3), it concluded that Te Runanganui was representing Ngati Apa interests on the West Coast before the MAC, that Ngati Apa people including West Coast people participated actively in the process and that there was no requirement for any formal authorisation. The Court’s conclusion was that Ngati Apa, including Ngati Apa people on the West Coast, did have a reasonable opportunity to be heard, and had not made good their complaint of unfairness.

32.	The issues in the case stated by the Waitangi Tribunal to the MAC required determination of the customary rights of competing tribes regarding land in the area of the Arahura purchase. Almost inevitably, therefore, questions arose what tribes were involved, and by whom and how were they represented. There was no statutory answer to such questions (like that later supplied in the case of Ngai Tahu by the Te Runanga o Ngai Tahu Act 1996). But the Treaty of Waitangi Act 1975 contemplated that a claim might be submitted by any Maori that “any group of Maoris of which he or she is a member is, or is likely to be prejudicially affected”: section 6. The MAC rightly proceeded on the basis that  an iwi or tribe could be represented before it through a society such as Te Runanganui. At the same time, and in the light of problems which emerged regarding potentially overlapping or competing representation (see paragraphs 14 to 16 above), the MAC on 20th November 1989 asked “the various claimants to establish their bona fide[s] that is to establish that they are representing a tribal group that is entitled, a tribe, iwi [or] hapu that is entitled to be heard on this issue”, and heard evidence on the position.  

33.	At the end of the hearing on 20th November 1989 the MAC said that it required written tribal authorisation from, inter alia, Ngati Apa within one month, and, when asked by Dr Mitchell whether Te Runanganui would be able to continue to proceed in the absence of such written authorisation, the Court referred to the meetings which had occurred in relation to two iwi, and said that “we expect you to continue to act throughout these hearings to produce the goods in relation to the other four”. Mr Crosby submitted that the Court thereby meant that Te Runanaganui should continue to represent Ngati Apa (“producing the goods” in terms of a substantive case), whatever the position regarding authorisation. Their Lordships do not consider that this can be a correct reading. The MAC must have meant that Te Runanganui and/or those acting for it should “produce the goods” in terms of authorisation. 

34.	Following this exchange and consistently with the view which their Lordships take of its effect, Dr Mitchell wrote on 15th December 1989 indicating an intention to hold a meeting or hui for Ngati Apa, but announcing that there would be some delay in this. The question of a hui was not further raised or discussed before the MAC, but Mr Stevens recommenced acting for Te Runanganui and at the substantive hearing in June 1990 clarified that he no longer faced any conflict of interest. Te Runanganui held itself out as acting for, among other iwi, Ngati Apa. Mr Stevens called Mr Ruruku, Te Runanganui’s chairman, on 18th June 1990 to give evidence “to reinforce the fact that the people that are here with him today have the authority to represent the iwi of Te Runanganui”. The MAC did not go into the question of authorisation further, but, in proceeding as it did, it must have accepted Te Runanganui’s authority and representative capacity on behalf of Ngati Apa, even though it had received no confirmation of any such meeting as it had suggested to confer or confirm such authority. To that extent, their Lordships agree with Mr Crosby’s submission that the MAC “was acting as though a representative order had been made”.  

The approach to the issue of representation

35.	As the Court of Appeal observed, what matters is not what the MAC thought or did. What matters, in their Lordships’ view, is whether Te Runanganui can, in the light of all that is now known, fairly be treated (as the MAC treated it) as having represented Ngati Apa of the South Island as a whole including West Coast Ngati Apa people, so that Ngati Apa can in turn fairly be regarded as having participated in and as bound by the MAC decision. While it is not necessarily enough that some South Island Ngati Apa people knew of and had an opportunity to interest themselves in the MAC proceedings, it cannot at the other extreme be required that all the South Island Ngati Apa people knew of the existence, scope and potential significance for Ngati Apa of the MAC proceedings. That would be impossible to ensure, even after the most exhaustive process of enquiries, advertisements and meetings.

36.	It is true that, even today, the number of people claiming Ngati Apa wakapapa (genealogy) appears to be small. In the 19th century the sizes of individual iwi appear to have been tiny, with Ngai Tahu the largest South Island iwi described as having no more than between 600 and 700 members. Ngati Apa is described as having been particularly dispersed and disorganised in 1990. The West Coast Ngati Apa line relevant for present purposes appear on the evidence to be confined to descendants of one single family, the Mahuikas. But frequent inter-marriage between different iwi and with non-Maori has increased the number of people able to claim a Mahuika connection. According to Richard Bradley’s evidence, it is “absolutely commonplace for Maori …. to whakapapa back to a range of different tipuna [ancestors] who will be from different iwi”. The evidence before their Lordships shows many Maori claiming multiple tribal affiliations, but emphasising one or perhaps more of their main affiliations in different contexts or at different times. Another complicating consideration is the dependence of much whakapapa on oral history, leading to uncertainty and argument about tribal affiliations going back to the early 1800s. This is evident for example before the MAC in relation to Puaha te Rangi, a West Coast figure of great importance to Ngati Apa’s claim as a signatory to the Arahura purchase in 1860 and the recipient of monies under it in respect of property interests in the Westport area near Cape Foulwind, as well as his sister, cousin or relative by marriage (as she is variously described), Matanahinahi. All this underlines the impossibility of ensuring any comprehensive identification at any time of everyone able to claim a particular tribal affiliation.   

Hui

37.	Mr Crosby put at the forefront of the Trust’s case a submission that the only proper foundation of authority for Te Runanganui to represent Ngati Apa would have been a tribal meeting or hui, embracing Ngati Apa of both coasts. He points out that the MAC had in mind, particularly on 20th November 1989, that a tribal hui should be organised. Mr Crosby referred their Lordships to statements made with regard to the operation of the Te Ture Whenua Maori Act 1993 (or Maori Land Act 1993), under which the Maori Land Court was given powers, at the request of any court, commission or tribunal, to advise as to the persons who, for the purposes of certain proceedings are “the most appropriate representatives of any class or group of Maori affected” (or at the request of the Chief Executive or Chief Judge, to determine this for the purposes of negotiations, consultations, allocation or other matter): section 30. Justice Durie writing extra-judicially in June 1993 in an unpublished paper (South Africa: A New Zealand Maori View) opined that “past practice with incorporations and trusts suggests the court will [under the Act] seek evidence of free elections following widely notified meetings and the subsequent formation of some corporate structure with clearly defined and democratic rules”. In Ngati Paoa Whanau Trust v. Hauraki Maori Trust Board (unreported) (Vol. 96A, Folio 155, 17 November 1995), the Maori Land Court agreed that “in an ideal world” representation should depend on broad based consent of people or mandate, due process of consultation according to tikanga (custom), credibility in terms of leadership, approval of rangatira (customary leaders) and kaumatua (elders) and provision for accountability to the tribe, and that, if those principles were followed, “then one would expect a decision by consensus”. Their Lordships do not in any way disagree. But the 1993 Act post-dates the events presently in contention by some years. The all-embracing desiderata identified by the Maori Land Court cannot themselves determine whether on the specific facts of this case Ngati Apa can fairly be regarded as having been represented by Te Runanganui before the MAC in 1989-90. 

38.	Mr Crosby also referred to various statutory provisions providing for hui. For example, the Hauraki, Maniapoto and other Maori Trust Boards established under various Acts in 1987 and 1988 were required to hold annual hui to report on their activities and plans, with at least two months’ prior public notice being given of such hui by advertisements published on two consecutive days in daily newspapers circulating in the district or districts where the majority of the beneficiaries reside, in accordance with the Maori Trust Boards Act 1955. The Ngati Rarua-Te Atiawa Iwi Trust Empowering Act 1993 provides for elections of members by hui. The Maori Fisheries Act 2004 likewise. Mr Crosby further drew attention to the provisions in the Runanga Iwi Act 1990 (given Royal Assent on 31st August 1990) for the calling of a hui in relation to any proposal to incorporate. The Act was, after a change of government, repealed by the Runanga Iwi Act Repeal Act 1991 with the explanation that the Government was stepping back “from the role ….. of interfering in the matter that properly belonged to the Maori tribes”. Mr Crosby sought also to invoke current Government policy (on the basis that it favours a mandating process in Treaty negotiations involving a series of hui) and Australian practice.  

39.	None of this material, most of it post-dating the relevant events, is in their Lordships’ view of real assistance in determining the issue on this appeal. It is clear that attention has been focussed on the democratic desirability of widely advertised and attended hui in a variety of specific statutory contexts. But none of the statutory provisions identified is directly applicable here. It is, as will appear, clear that a considerable number of people with Ngati Apa ancestry must have been  aware of and involved in relation to the MAC proceedings and Te Runanganui. The question is whether, viewing the position broadly, there was sufficient tribal knowledge and involvement to make it fair to regard Te Runanaganui as representing Ngati Apa, as Te Runanganui believed itself to be, and was treated by the MAC as, doing.

Kaumatua

40.	In this connection, their Lordships would also mention the importance that could still evidently attach in 1989-90 to the role of kaumatua as tribal authorities and/or as a means of communicating with and determining the views of the wider iwi. The role of ‘Chiefs’ at the time of the Treaty of Waitangi appears by the quotation set out at paragraph 4 above. June Robinson says in her affidavit sworn on 3rd August 1998 that in 1989-90, when she was interviewed with her mother by Dr Mitchell, she “believed that it was for my mother and her siblings as the kaumatua at the time to make the decision on whether West Coast Ngati Apa should become involved in that [the MAC] litigation”. At least one (and it seem likely both) of the authorisations produced by Mrs Haeta were signed by elders, rather than the product of a hui. Dr Mitchell’s evidence was of discussions with elders, who included not merely Mrs Wilson, but also Gordon McLaren. Te Runanganui was constituted and the iwi and their representatives taking part in it were identified by persons described by Dr Mitchell in his affidavit of 25th February 1999 as elders, and elders were given and played a significant role under Te Runanganui’s constitution, although that also provided for hui attended by members of its constitutent iwi. Minutes of other meetings, including those of the Ngati Apa East Coast hui in 1990 show the attention given at them to kaumatua identified by the honorary prefix of Aunt or Uncle. Gordon McLaren’s reference on 7th August 1990 to June Robinson having “over 300 names on Mahuika line for Ngaitapa” is also suggestive of a leading role being played by her as kaumatua or the daughter of kaumatua.   

Factors identified by the Court of Appeal

41.	The Court of Appeal identified a number of factors when concluding that Ngati Apa, including West Coast Ngati Apa people, had sufficient knowledge of the MAC proceedings to make it fair to regard them as bound by Te Runanganui’s activity on their behalf. These included: (a) reports of Ngai Tahu’s claim before the Waitangi Tribunal and MAC (paragraph 86), (b) a formal notice of the case stated dated 23rd March 1989, issued by the Tribunal’s Registrar (paragraph 79), (c) information received as shareholders in the Mawhera Incorporation by Ngati Apa people who also had Ngai Tahu ancestry (paragraph 81), (d) evidence that specific West Coast Ngati Apa knew of the MAC proceedings (paragraphs 80 and 91), and (e) participation by Ngati Apa individuals in the Waitangi and/or MAC proceedings (paragraph 89). 

 Publicity and notices 

42.	As to (a), the Waitangi Tribunal proceedings began with public notices in June 1987. The Tribunal sat in part on the West Coast in 1987 when hearing the Ngai Tahu claim relating to the Arahura purchase. Ngai Tahu’s claim was reported as involving “almost the whole of the South Island”. Subsequent proceedings and the overlapping claims made by Kurahuapo iwi represented by Mr Stevens received considerable publicity in newspapers (including on the West Coast) in the second half of 1987. The cross-claims attracted great acrimony. The press reported Ngai Tahu’s counsel’s description of them to the Tribunal as “the flea on the tail of a dog wagging its tail” and latterly as “a great lump of seaweed on the prow of our canoe”. The informal meeting of 10th October 1987, mooting the formation of what became Te Runanganui to represent the interests of inter alia Ngati Apa in relation to the Ngai Tahu claim, was reported in October 1987, as was the Tribunal’s initiative to amend the law to make possible a case stated.

43.	Mr Crosby emphasises in his submissions the extensive publicity given by the Waitangi Tribunal and by West Coast newspapers to the Tribunal’s proceedings. But he lays emphasis on the formal limitation at this time of Ngai Tahu’s claim to the area south of Cape Foulwind.  Their Lordships have already observed in paragraph 10 above that all concerned with the Waitangi Tribunal were well aware that there were in reality vigorously contested cross-claims to an area north of Cape Foulwind. There was also considerable publicity about them, of a kind likely to draw the attention of Maori people of any iwi involved and to excite discussion with other members of the same iwi. While it is true that anyone obtaining a copy of Ngai Tahu’s original claim in June 1987 would have noted that it only extended north as far as Cape Foulwind, anyone sufficiently interested to do this would be likely also to follow the subsequent newspaper reports of overlapping claims and on enquiry would have been provided with or informed of the Te Runanganui’s cross-claims which identified Ngati Apa’s overlapping interest (as well as Ngai Tahu’s own amended claim or claims clarifying its interest).

44.	Similarly, Mr Crosby’s submission that the newspapers did not tell people how to become a part of the proceedings, or facilitate a hui for a disorganised iwi, is true, as far as it goes. But the newspaper reports constitute part of an overall picture which it is important to put together in considering whether the people of the Ngati Apa iwi as a whole were aware that an issue regarding entitlement to land was being determined on their behalf, and had a fair opportunity of taking an active part in or of objecting to this course of events. 

45.	Thereafter, the only newspaper cuttings of which copies have been put before their Lordships relate to the substantive hearings in June 1990 before the MAC (although it seems unlikely that there were no other reports of the preliminary MAC hearings). Headlines such as “Maori dispute which tribe sold West Coast” and “Tribe’s land claim disputed” appear in a series of detailed articles in West Coast newspapers, such as the West Coast Times, the Westport News and the Greymouth Evening Star together with other articles in the East Coast paper The Press. Again, even though these articles appeared during the substantive hearing, they are in their Lordships’ view of significance in that they gave further notice of the issues, and an opportunity to take an active interest or to object. Their Lordships do not accept Mr Crosby’s submission that these reports came too late for any relevant purpose. The MAC decision was not issued for another four months after the June 1990 hearings. If there had been a significant body of West Coast Ngati Apa people who were until then ignorant of the MAC proceedings and not content to allow them to be conducted by Te Runanganui, these reports would have made clear to them the importance of the proceedings and could have been expected to elicit their participation or at the least some expression of concern at their ignorance or exclusion until then. 

46.	Point (b), the formal notice of the case stated dated 23rd March 1989 issued by the Tribunal’s Registrar, can be addressed shortly. The Court of Appeal acknowledged that there was no evidence of publication of this notice, and any question of further publication may (as Mr Crosby submitted) simply have been left to the MAC. 

47.	Turning to point (c), relevant information was given to shareholders in the Mawhera Incorporation who included Ngati Apa people with Ngai Tahu ancestry. In respect of the year ended 31st May 1988 the report stated that “the claim on the Mawhera lands brought to the Waitangi Tribunal by the Mohua tribes [viz the tribes of the Golden Bay or northern tip of the South Island]” had been directed for settlement to the MAC, and was “a serious challenge to our manawhenua” [property rights], which would be strongly resisted. The report for the year ended 31st May 1989 stated that the cross-claim hearing had been set down for hearing for 25th September 1989 by the MAC after the preliminary hearing on 15th May 1989, and that the cross claimants for Tukupua and the Kurahaupo Waka Society would be first to present their evidence, followed by Ngai Tahu.  The shareholders of Mawhera Incorporated who received such information included Mary J. Wilson, her daughters June Robinson and Iris Climo, their cousins David and Gordon McLaren (sharesholders Nos. 1143 and 1144), Daniel McLaren (no. 1145) and Audrey Eileen Hansen (no. 1146). It seems quite likely from the similarity of names and juxtaposition of shareholding numbers with those of other McLarens, that the last is another (perhaps married) name for Audrey Eileen McLaren. Gordon McLaren voted against a resolution at the 1988 meeting as did June Robinson and Iris Climo at the 1989 meeting. 

Knowledge and participation of Ngati Apa people, including from West Coast

48.	Points (d) and (e) can be taken together. The Court of Appeal identified a number of individuals with knowledge of the Waitangi Tribunal and MAC proceedings. Gordon McLaren, who later took an important role at the Ngati Apa East Coast hui of 7th August 1990 and 25th September 1990, gave evidence to the Tribunal for Ngai Tahu, as did Iris Climo.

49.	June Robinson, Iris Climo’s sister, was until 1989 a Community Officer for Maori affairs on the West Coast, for four years in an honorary and for seven years in a paid position. As such, she records that she was responsible for organising a number of West Coast hui, though none took place in relation to the subject-matter of the MAC proceedings until 9th November 1991 (paragraph 24 above). The gist of her evidence is that she was not aware either that the MAC proceedings could involve any fundamental challenge to Ngati Apa’s land rights north of Cape Foulwind (rights which she regarded as settled by a 1948 Maori Land Court decision), or of any need for West Coast Ngati Apa people either to appoint representatives to act or to arrange for evidence to be given before the MAC.

50.	On the other hand, she says that the purpose of Dr Mitchell’s contact with her and her mother was to obtain information on the boundaries between Ngai Tahu and other iwi such as Ngati Apa. Further, she was involved during the relevant period not only in Mawhera Incorporated (paragraph 47 above), but also in Te Runanganui. Both she and June Robinson and her cousin Gordon McLaren sent apologies for non-attendance at the first annual general meeting of Te Runanganui on 18th November 1989, where Kath Hemi proposed June Robinson as a Ngati Apa delegate. The minutes of that meeting refer to the current MAC proceedings, in which Te Runanganui was pursuing the interests of Ngati Apa and other northern iwi. Together with her mother, June Robinson was interviewed by Dr Mitchell. Dr Mitchell’s evidence puts this interview as after 20th November 1989, when he says he travelled to Golden Bay and the West Coast “to interview some of the kaumatua in the area”, to endeavour to obtain evidence of historical associations on the West Coast.

51.	According to June Robinson’s answer to interrogatories, the kaumatua in question included Gordon McLaren as well as herself and her mother, and they were evidently told (as one would expect) that the context was an impending MAC case “as to the boundaries of Ngai Tahu Tribunal claims”. June Robinson says that she was not present all the time during the interview with her mother, but that “clearly it was made known to him that Ngati Apa people ….. had associations with the Kawatiri area (near Cape Foulwind) and north of it”. June Robinson’s statement that any decision about participation in the litigation would have rested with her mother and her siblings suggests that her mother would in turn have passed on information about the litigation to siblings. The impression that June Robinson gained from her mother was that they were unable to afford another fight of the nature that had occurred in 1948, but they saw the 1948 decision as settling the matter. There would have been good reason in these circumstances for them to be content with Te Runanganui’s representation of Ngati Apa’s interests in its over-lapping dispute with Nahu Tahu. Later, at the Ngati Apa meeting held on 7th August 1990, Gordon McLaren reported that June Robinson had “over 300 names on Mahuika line for Ngatiapa”.

52.	Within Te Runanganui Kath Hemi was named as the Ngati Apa delegate, although her main interest appears as Rangitane in support of which she gave her evidence and she had some Ngai Tahu ancestry. She had some ancestral connection with the West Coast Mahuika line, but no contact with them “by [i.e. presumably, until] 1989”. There were others with Ngati Apa wakapapa: Richard Bradley (through a Macdonald great-grandfather, related to Kath Hemi) had Rangitane and Ngati Apa ancestry and attended the MAC hearings for Rangitane, presenting Kath Hemi’s evidence because she was ill at the time. Barry Mason, who served as Te Ranganui secretary, also had Ngati Apa and other ancestry, but no contact with West Coast Ngati Apa and he was involved for Ngati Rurua. Duncan Wilson had Ngati Apa ancestry, though he gave evidence for Ngati Kuia before the MAC in June 1990.

53.	The witness called specifically to present Ngati Apa’s position before the MAC was Mrs Haeta (now deceased). She gave evidence of her Ngati Apa connection (apparently through a great-grandmother who married Hoeni Mahuika and/or through her mother’s cousins). Mr Crosby submits, with force, that her formal authorisations carry matters nowhere. They are on their face from the wrong iwi and/or island. But she was involved from an early stage in the steps taken to protect the interests of South Island iwi, attending Te Runanganui’s pre-formation meeting on 26th March 1988, and her evidence shows her familiarity with the wakapapa of the Mahuika family, for which she claimed to be speaking. She recounted in particular the history of Puaha te Rangi. Further, June Robinson “knew Kuini Haeta and had had contact with her over many years”.

Representation of Ngati Apa by Te Runanganui before the MAC

54.	Mr Crosby further submits that the most that is shown is that some Ngati Apa people knew of the MAC proceedings, that knowledge by particular, perhaps atypical individuals does not equate with knowledge by or representation of the iwi, that an iwi as a whole may have knowledge that particular individuals lack, that one individual may not be able adequately to represent an iwi and that assertions of authority, e.g. by counsel or Te Runanganui cannot suffice. The last point, regarding assertions of authority, their Lordships readily accept as an aspect of the point made in paragraph 30 above. Their Lordships also acknowledge that knowledge by particular individuals who may be atypical does not of itself equate with knowledge by or representation of the iwi, that an iwi as a whole may have knowledge that particular individuals lack and that one or more individual(s) may not be able adequately to represent an iwi. Their Lordships also see force in Mr Crosby’s careful submissions regarding the lack of advertisement and of any West Coast hui during the course of the MAC proceedings. It would have been desirable, certainly with hindsight, for those able to claim any Ngati Apa ancestry to have been given formal and specific notice about and the opportunity to contribute in any way they could to the MAC proceedings. That this did not occur, and the fact that the first formal hui of Ngati Apa people in the present context took place only in August and September 1990 and then only on the West Coast, no doubt reflect Ngati Apa’s dispersal and lack of organisation at the time. The lack of organisation was remedied only after the MAC proceedings concluded. On the other hand, the MAC treated Ngati Apa as represented before it by Te Runanganui, and resolved the over-lapping claims made on the West Coast on that basis, as required by the case stated. The question is whether absence of formal notification meant that the Ngati Apa iwi as a whole was not sufficiently involved or aware for it to be fair to treat Ngati Apa as represented by Te Runanganui.

55.	In these circumstances, their Lordships consider that it is material to consider whether, in this particular case, there is any real likelihood that a significant body of other Ngati Apa people existed who were unaware of the MAC proceedings and who could have provided relevant additional knowledge or would have taken an active interest in such proceedings, had they known of them. As to this, their Lordships comment as follows. First, they have already drawn attention to the extensive newspaper coverage, as well as the information available to at least some Ngati Apa people, relating the over-lapping claims before the Waitangi Tribunal and the MAC (paragraphs 42-45 and 47 above). Second, there was quite extensive involvement of identified individuals having Ngati Apa whakapapa over a long period from Autumn 1987 onwards in meetings and developments relating to the overlapping claims, starting with those suggesting and later leading to the formation of Te Runanganui (paragraphs 48-53). Third, while it is the case that the Ngati Apa people involved in such meetings were primarily from parts of the South Island other than the West Coast, the evidence also shows that important West Coast figures were aware of or involved in one way or another (in particular Iris Climo, June Robinson and Gordon McLaren) and that the members of Ngati Apa were not entirely isolated from each other (paragraphs 48-51 above).

56.	Iris Climo, June Robinson and Gordon McLaren were all three either kaumatua or children of kaumatua of the Mahuika family, which on the evidence appears as the key line of descent for at any rate West Coast Ngati Apa people (Puaha te Rangi having died without heir). Mrs Robinson knew and had had contact with Mrs Haeta, who attended the pre-formation Te Runanganui meeting on 26th March 1988, was very knowledgeable about the Mahuika family and believed – though the precise basis for this is unexplored – that she was able to speak for them. The respondents do not have to show positively that other members of the Mahuika family were aware or involved. The appellant has to establish the factual basis for the declaration it seeks. In any event, widely dispersed though Ngati Apa were as an iwi, their Lordships find it difficult to think that informal discussions did not take place between different family members of the Mahuika line about the over-lapping claims, or that there is a substantial body of members of that family whose ignorance of or exclusion from the MAC process should be regarded as giving rise to a real grievance based on lack of representation. Even after years of opportunity to organise and produce relevant information, the evidence of lack of knowledge or involvement or real disadvantage to Ngati Apa interests in that connection appears to their Lordships to be very limited. The delay in raising the present issue of representation also means that some of the kaumatua and others who might have given relevant evidence have died. But that is a factor which should count, if anything, against the appellant in this context.

57.	Their Lordships also attach importance to the evidence by which the complaint has been supported. In the first instance this consisted of affidavits sworn in August 1998 by June Robinson and her sister Iris Climo, Kath Hemi, Audrey McLaren, Alice Gilsenan-Batt and David Anderson (an expert historical researcher). The subsequent much more detailed case on lack of representation was advanced primarily in supplementary affidavits of Kath Hemi and June Robinson, with some support from Richard Bradley. The factual evidence submitted in support of the appellant Trust’s case on representation thus comes in the main from West Coast individuals with close family inter-relationships (Iris Climo, June Robinson, Audrey McLaren and Alice Gilsenan-Batt).

58.	As their Lordships have mentioned, Kath Hemi’s affidavit referred to Ngati Apa being represented “in name only”. Audrey McLaren’s affidavit of 4th August 1998 said that “Neither I nor, I believe, any  members of my family knew anything of the 1990 [MAC] hearing” and Alice Gilsenan-Batt’s affidavit sworn 6th August 1998 said that “Neither I nor, to my knowledge, any member of my family was aware of the 1990 [MAC] case, and its significance was unknown to us”, and continued by saying that “As a consequence of our lack of knowledge of the hearing, its significance, or the importance of being involved, we simply were not represented. …. In no practical sense, therefore, were Ngati Apa people on the West Coast involved in a proceeding which was fundamentally and directly affecting their rights despite the fact that they were the people living in the area”.  

59.	However, as their Lordships have shown, most of these factual deponents had considerable involvement at early stages. Mrs Hemi was an East Coast resident closely involved with – indeed a claimant for Ngati Apa in - the Waitangi Tribunal proceedings, closely involved in the moves to form and formation of Te Runanganui and a witness, albeit for another iwi, before the MAC. At no point did she suggest or presumably feel at the time that Ngati Apa was not properly represented before the Tribunal or MAC. Iris Climo gave evidence to the Waitangi Tribunal. June Robinson, her younger sister was a Maori affairs Community Officer and a leading family figure in the Mahuika line. She was seen by Dr Mitchell in late 1989 or early 1990, she was active as a shareholder in Mawhera Incorporated in 1989 and she was involved in Te Runanganui from 1989 and as a West Coast trustee of the appellant Trust from 1992.

60.	Audrey McLaren’s belief in her statement that “Neither I nor, I believe, any members of my family knew anything of the 1990 [MAC] hearing” cannot be well-founded, since her brother Gordon McLaren was also seen by Dr Mitchell in late 1989 or early 1990, was active as a shareholder in Mawhera Incorporated and attended the Ngati Apa hui held on the East Coast on 7th August and 25th September 1990 .He was there presented as a potential intermediary with West Coast Ngati Apa and reported that June Robinson had over 300 names on the Mahuika line “for Ngatiapa”. Mary Wilson, Iris Climo, June Robinson, Gordon McLaren and (quite likely also) Audrey McLaren also had information about the MAC proceedings as Mawhera Incorporated shareholders. Alice Gilsenan-Batt’s affidavit saying that “Neither I nor, to my knowledge, any member of my family was aware of the 1990 [MAC] case, and its significance was unknown to us” can in these circumstances refer to no more than her very immediate family, in view of the knowledge possessed by at least her cousin Gordon McLaren; Alice Gilsenan-Batt was one of the three West Coast trustees of the Trust formed on 9th October 1992, and must have been aware from then at latest of the situation regarding the MAC decision.   

61.	The fresh evidence which the appellant now identifies as bearing on the correctness of the MAC’s decision regarding Ngati Apa’s interest on the West Coast comes in essence not from any of these factual deponents, but from the researcher, Dr Armstrong, who was engaged by the appellant Trust in October 1995 with Crown Forestry Rental Trust funding. He delivered an outline in June 1996 and his draft report in January 1997. June Robinson records that there were by August 1998  1,000 registered members with Ngati Apa whakapapa. But there is no suggestion of further evidence from them which could have thrown a different light on the issues examined by the MAC. The complaint that Ngati Apa did not have, or was not given, the time or funding to present to the MAC the amplified case regarding Ngati Apa’s West Coast interest now possible in the light of Dr Armstrong’s research is one which is not before their Lordships. It does not bear on the question whether Ngati Apa should be regarded as having participated through Te Runanganui in the MAC proceedings.  

Delay

62.	Their Lordships attach considerable importance to the delay before any suggestion of lack of representation or injustice. One of Mr Crosby’s core submissions is that a hui specifically involving West Coast Ngati Apa was essential to the fair representation of the Ngati Apa iwi’s interests. But such a hui took place on 9th November 1991, and further like hui annually thereafter, in each case organised by Kath Hemi and June Robinson and attended by between 10 and 50 people. No concern was expressed or complaint made that Ngati Apa had not been represented, or that Te Runanganui had exceeded any mandate it had in the MAC proceedings. On 9th October 1992 the appellant Trust was formed, with Kath Hemi as chair, and three West Coast trustees, June Robinson, Audrey McLaren and Alice Gilsenan-Batt. Again no concern was expressed about what had occurred and been done in Ngati Apa’s name before the MAC. Instead, the appellant in its presentation of Ngati Apa grievances to the Crown on 22nd May 1995 (paragraph 25 above) implicitly recognised that Ngati Apa had participated in the MAC proceedings, and likewise three years later in its claim filed 11th May 1998 (paragraph 27 above) complained only of matters relating to the handling of Ngati Apa’s case before the MAC. On 28th June 1998 Mr Crosby wrote expressly recognising that Ngati Apa had been party to the MAC proceedings (paragraph 27).

63.	That no complaint of lack of representation of or participation by Ngati Apa iwi including its West Coast people emerged until thereafter casts, in their Lordships’ view, considerable doubt on the justification for any such complaint. Had there been substantial justification for a complaint about Te Runanganui’s authority to represent Ngati Apa, including West Coast Ngati Apa, or about that iwi’s participation in the MAC proceedings through Te Runanangui, their Lordships believe that it would have emerged at a much earlier point, at latest after West Coast hui in 1991 were held and the appellant Trust was formed in 1992.

Conclusion

64.	In the light of all the circumstances that their Lordships have set out, culminating in the long delay before any claim of lack of representation emerged, their Lordships conclude that the Ngati Apa iwi, including its West Coast people, can and should fairly be regarded as having had due notice of, and of the issue affecting such iwi in, the MAC proceedings, and as having been represented by Te Runanganui before the MAC. Their Lordships will on that basis humbly advise Her Majesty that the appeal should be dismissed.

Discretion

65.	The declaratory relief sought is discretionary, and the delay in raising any complaint regarding representation is also potentially relevant in that regard. The Court of Appeal did not address this aspect, but France J would, if necessary, have refused declaratory relief on the alternative ground of delay.  Their Lordships would, in common with France J, conclude that the delay in seeking relief is such as would by itself make it inappropriate to contemplate making the declaration sought. Mr Crosby emphasised the need for and the time taken to obtain funding and (once funding was available) historical research. But none of that was necessary to identify and raise a complaint about representation. The appellant Trust was formed to represent Ngati Apa people and interests, including specifically those on the West Coast, as early as October 1992. The deponents who now complain about lack of representation were all involved from that time. A claim to relief on the basis that Te Runanganui had purported to represent Ngati Apa without any proper mandate, and that real injustice had thereby been done, should have manifested itself long before 1999.

66.	Their Lordships have already noted that a number of those involved at an early stage have been leading protagonists in the present complaint, Kath Hemi in particular. Their Lordships have already indicated that it is not surprising that complaints about lack of authority should not come from them, although the reason throws doubt on the validity of the substance of their current complaint about lack of representation. But it is said that others cannot have had a full or proper appreciation of what was happening before the MAC. If that were so, they would have been expected to complain once they discovered. Instead, there was very long delay before any such complaint, and in the meantime significant steps were taken by the Crown and Ngai Tahu giving effect to the MAC decision, in particular the “On Account” Settlement of 14th June 1996, the final Settlement of 21st November 1997 and finally the Ngai Tahu Settlement Act 1998 passed on 1st October 1998.

67.	Counsel were agreed, in the light of the relevant New Zealand Court of Appeal authority, that none of these developments represents any absolute bar to the Trust’s pursuit of Ngati Apa’s claim filed before the Waitangi Tribunal on 9th June 1999. Mr Crosby’s submissions, that the MAC decision could still have potentially irrevocable and damaging implications for Ngati Apa land and fisheries rights and that such rights are of such fundamental significance to Maori life and thinking, have to be viewed in that light. Their Lordships are in no position to decide what difference the grant of a declaration would or might make to either side or to the Crown or in the Waitangi Tribunal in wai 44 or wai 521/95 or under the Maori Fisheries Act 2004. But the more fundamental the right, the more promptly one might expect complaint to be made if it was potentially affected by a decision against an iwi which was not represented before the court making the decision. In their Lordships’ view, the appellant Trust’s case based on lack of representation first advanced by the amendment made in 1999 came too late for it to be appropriate to consider granting the declaratory relief now sought, even if that had (contrary to their Lordships’ view) otherwise been appropriate.