Rā: 2 o Hakihea | 2 December 2022
Te Rūnanga o Ngāi Tahu (Ngāi Tahu) has filed an application for judicial review with the High Court, arguing that the resolution of iwi at the 2016 SGM in favour of equal sharing of surplus funds is unlawful and that Te Ohu Kaimoana should not have included in its report to the Minister in response to the statutory review. The Minister is currently advancing amendments to the Maori Fisheries Act 2004 following on from the statutory review. A Bill is expected to be introduced to Parliament in the near future.
Ngāi Tahu say that distribution on an equal basis would be contrary to the Treaty and the 1992 Settlement, and that iwi have a legitimate expectation that surplus assets will always be distributed on a population basis.
Te Ohu Kaimoana acknowledges that any iwi beneficiary is entitled to challenge the lawfulness of their actions as trustee. Today, Te Ohu Kaimoana has filed a statement of defence and will proceed to prepare to respond to the claims.
The case is due to be heard in the High Court in Wellington over three days on Monday 6 – Wednesday 8 March 2023.
Following a direction from the Court all mandated iwi organisations (MIO) and recognised iwi organisations (RIO) have been served, and have until 4:00pm Friday 9 December to let the Court know if they wish to be heard.
Any MIO or RIO who wishes to be heard should instruct counsel as soon as possible to meet that deadline.
The Court will then have a Teams conference on Monday 12 December to decide what role MIOs might have in the case.
Te Ohu Kaimoana does not consider it can take a position on the central question in Ngāi Tahu’s case: would amendments to the Maori Fisheries Act that allowed equal sharing of surplus funds be contrary to the Treaty and the 1992 Settlement. This is an issue that iwi were divided on in the 2016 SGM and as trustee Te Ohu Kaimoana does not take sides.
Te Ohu Kaimoana recognises these are important and complex issues. The declarations Ngāi Tahu is asking the Court to make could have implications for the future.
Te Ohu Kaimoana is proposing to ask the Court to also appoint an independent counsel to act as a ‘contradictor’ to be sure that the Court has the whole picture at the hearing. The contradictor will assist the Court; they will not be representing any particular iwi perspective. The Court may not agree with this proposal.
MIOs are to make their own assessment as to whether they should join the litigation to protect their interests.
Te Ohu Kaimoana will set up a website with information for iwi about the amendments process and the litigation, and we will let you know when that is online.
