Judicial review – application for leave to appeal – Senior Courts Act – s 75(b) application for leave to bring direct appeal – no exceptional circumstances to meet the threshold – claim challenges the proposed legislation itself – comity – appropriate forum – Māori Affairs Select Committee
Roebeck v Ngāti Paoa Trust Board  NZSC 95 per O’Regan Williams and Kós JJ.
The Ngāti Paoa Trust Board was established in 2004 to represent the iwi. In 2009, the Māori Land Court made orders under s 30 of Te Ture Whenua Māori Act 1993 confirming the trust board’s mandate to represent Ngāti Pāoa’s interest in Resource Management Act and local government matters.
Ngāti Pāoa participated in regional treaty negotiations, which were ratified in 2013. Mandate disputes later arose, leading to Māori Land Court and Waitangi Tribunal actions.
Against this backdrop, in March 2020 the iwi trust and an iwi negotiator, Mr Wilson, held separate but overlapping ratification processes for the Ngāti Pāora settlement deed. They also sought input on transferring Waiheke Station trusteeship and confirming the iwi trust’s post-settlement position.
Judicial review proceedings were brought by certain kuia of Ngāti Kauahi, a hapū of Ngāti Pāoa, and the trust board about the ratification of the settlement deed.
The judicial review proceedings were dismissed and the applicants, Ngāti Paoa Trust Board, sought a direct appeal against McQueen J’s dismissal of the proceedings.
The settlement is part of a Bill introduced to Parliament on 13 December 2022, currently under review. Therefore, leave to bring a direct appeal was sought.
The Supreme Court clarified an application for leave to bring a direct appeal must meet the exceptional circumstances test in s 75(b) of the Senior Courts Act 2016 as well as the usual leave criteria in s 74.
Two exceptional circumstances were argued. First, the parameter of the comity principle is an important constitutional issue that ought to be resolved by the court. Second, legislation currently before the House of Representatives would, if enacted, render nugatory the rights of the appellants and other members of Ngāti Pāoa to have their say on the proposed settlement to the Crown.
The Supreme Court noted future enactment of implementing legislation did not automatically exclude the courts for comity reasons. Here, the applicant’s claim was seen to challenge proposed legislation, already in concrete form and being considered by a select committee.
The court concluded there were no exceptional circumstances that were sufficient to meet the threshold under s 75(b).
It was determined that the appropriate forum for the applicants to express their views was the Māori Affairs select committee.
Applicable principles: judicial review – principle of comity – treaty claims and settlements – role of select committees – right of appeal – direct appeal – grounds for appeal.
Held: The application for leave to appeal is dismissed. Applicants were ordered to pay the respondent’s costs of $2,500
Jamie Dierick is a law clerk for an Auckland criminal defence barrister.