A decision of the Department of Conservation to allocate taonga (being whale bones) to one of two tangata whenua groups has been successfully judicially reviewed.

Context

The case concerned the allocation of jawbones of a deceased whale that had been found in an area that both Te Rūnanga a Rangitāne o Wairau (Rangitāne) and Ngāti Kurī, a hapu of Te Rūnanga o Ngāi Tahu, have cultural associations with. DOC allocated the jawbones to Ngāti Kurī (decision), despite prior agreement between Rangitāne, Ngāti Kurī, and DOC that DOC would take possession of the whale bones until Rangitāne and Ngāti Kurī could reach an agreement about entitlement to the taonga (prior agreement).

Rangitāne successfully challenged the decision on four grounds:

1. Inconsistency with the Marine Mammals Protection Act 1978 (MMP Act) - Ngāti Kurī did not have a permit under s 6 of the MMP Act to possess the jawbones.
2. Procedural impropriety - DOC did not inform Rangitāne about the decision, did not hear from Rangitāne about the decision, and departed from the process that had previously been agreed for dealing with the jawbones.
3. Breach of the principles of te Tiriti under s 4 of the Conservation Act 1987 (Conservation Act) - the decision was made inconsistently with DOC’s obligation to deal with Rangitāne in good faith.
4. Legitimate expectation - Rangitāne had a legitimate expectation that DOC would hold the jawbones until an agreement was reached in accordance with tikanga between Rangitāne and Ngāti Kurī about entitlement to the jawbones.

Breach of te Tiriti

Section 4 of the Conservation Act 1987 required DOC to give effect to the principles of te Tiriti. This includes requiring DOC make the decision consistently with the principles of te Tiriti.

The Court considered that the prior agreement represented an appropriate exercise of kāwanatanga by DOC. The Court recognised that the claims that each iwi made to the jawbones as taonga involved a claim to be kaitiaki. This involves the exercise of rangatiratanga by each iwi which is protected by the te Tiriti. DOC exercising their kāwanatanga meant that DOC maintained the peace by possessing the taonga temporarily while allowing Rangitāne and Ngāti Kurī to exercise their rangatiratanga.

By contrast the Court found that the decision to allocate the jawbones to Ngāti Kurī was made in breach of the good faith obligation owed by DOC to Rangitāne under te Tiriti. This obligation falls under the principle of partnership that arises from the balancing of kāwanatanga and tino rangatiratanga in Articles 1 and 2 of te Tiriti.

The Court made some important observations about the Crown’s obligation to act in good faith:

1. The good faith obligation requires that tangata whenua are meaningfully consulted in decision-making processes that impact them. Particularly when a decision will significantly affect cultural interests, the Crown must communicate transparently with tangata whenua.
2. The Court noted that it is possible for more than one Māori whakapapa group to have rangitiratanga in the same takiwā (district/area). Where this is the case, the Crown must not favour the interests of one group over another. Rather, to uphold their good faith obligation, the Crown should consult each iwi to understand their cultural association to the subject matter.

DOC’s failure to meaningfully consult Rangitāne about the decision was found to be a fundamental breach of the good faith obligation.

Substantive remedy awarded for breach of legitimate expectation 

The Court also found that Rangitāne had a legitimate expectation that DOC would hold the jawbones until an agreement was reached in accordance with tikanga between Rangitāne and Ngāti Kurī about entitlement to the jawbones. This prior agreement was made between the parties twice in clear terms, and was reasonably relied on by Rangitāne. DOC’s decision breached this legitimate expectation.

The High Court categorised the remedy for breach of legitimate expectation as a substantive remedy, ordering that DOC’s decision be set aside. The Court ordered that the current situation of Ngāti Kuri being in possession of the whalebones cannot continue in midst of the substantial procedural flaws. The Court determined that the question of allocation of jawbones is to be resolved by an iwi-to-iwi process, consistent with tikanga principles.

The award of a substantive remedy is rare in legitimate expectation cases as the court must not be seen to be interfering with the statutory duties of a public body.

The Court considered a substantive remedy was justified in this case because holding DOC to its prior agreement would uphold DOC’s legal responsibilities under the MMP Act and the Conservation Act, rather than usurping them.

While the High Court categorised the remedy as a substantive one, it could be viewed as a procedural remedy consistent with other legitimate expectation cases. Arguably, the procedural remedy and the substantive remedy seem to be the same. The Court did not award a specific outcome, but considered that the bones should be returned to DOC or remain in Ngāti Kuri’s possession under orders imposed by the Court to allow the tikanga process to take place. After that process had taken place, DOC could make its allocation decision.

Ultimate remedy deferred to tikanga

The Court held that the ultimate remedy - entitlement to the jawbones - must be left to be determined through a tikanga-consistent process. The Court stressed that it was not appropriate in these circumstances for the Crown to allocate taonga and determine who is kaitiaki. Those matters must be resolved by iwi themselves, guided by tikanga.

This deference to tikanga was a notable continuation of the trend set in Ellis v R and Ngāti Whātua ō Orakei v Attorney-General, where the Courts have deferred the final determination to tikanga, involving experts in Court or tikanga-based resolution processes. These recent developments demonstrate that the courts are cautious to take steps that would make, freeze, or codify tikanga, and instead, where necessary, defer tikanga determinations back to tikanga processes.

Get in touch

If you would like to chat to us about any aspect of this decision or the interpretation of te Tiriti o Waitangi then get in touch with one of our experts. This reflects that tikanga “is as much about right of tika processes as it is about tika outcomes, and that whaka-ea (the restoration of balance between disputants) is best achieved through tika processes”.

Special thanks to Sarah Gwynn and Louise Goodwin for their assistance in writing this article.