Court orders a 6 month stay on Ngāi Tahu Judicial review proceedings; Te Ohu Kaimoana applies for rescind of that order
9 Hui-tanguru 2023
Late last year Te Ohu Kaimoana undertook a commitment to openly communicate with iwi regarding the judicial review proceedings issued by Te Rūnanga o Ngāi Tahu relating to proposed amendments to the Maori Fisheries Act Amendment Bill. This review was in response to the resolution passed at the 2016 Te Ohu Kai Moana Group Annual General Meeting, in favour of equal sharing of surplus funds. This is the third update for iwi; our two prior communications can be found here and also any other available supplementary information.
This pānui covers all events from 23 December 2022 until 7 February 2023. We have included a summary for ease, with further information below. If you have any questions, please email email@example.com.
- Ngāi Tahu has applied for a stay of the judicial review proceedings. The Crown and Te Ohu Kaimoana have opposed the application to stay the proceedings.
- The original fixture set for 6-8 March 2023 has been vacated and will not go ahead.
- The Court is currently looking to set a date so parties can be heard on the application to stay.
- Ngāi Tahu confirmed that if they are not granted a stay, they will discontinue the proceedings. On this basis, the Court has not set a new fixture for the substantive proceedings until after hearing on the application to stay.
On 23 December 2022, Ngāi Tahu filed a memorandum requesting the Court:
- stay the judicial review proceeding indefinitely
- revoke the hearing timetable
- vacate the fixture that is currently set for 6 to 8 March 2023, and
- reserve leave for Ngāi Tahu to reinstate proceeding, including their application for urgency, on 48 hours’ notice.
Justice Isaac issued a Minute that afternoon recording that there did not appear to be a need for urgency. His Honour declined to make the directions sought at that time and deferred the matter to the next call, then scheduled for 27 January.
On 18 January, Te Ohu Kaimoana filed a memorandum opposing the stay sought by Ngāi Tahu. The memo can be found here.
The reasons for Te Ohu Kaimoana’s opposition to the stay can be found in the memorandum from paragraph  through .
In essence, Te Ohu Kaimoana is concerned because:
- the claims made by Ngāi Tahu have clear impact on the future process of Te Ohu Kaimoana. Ngāi Tahu makes a general claim that resolutions proposed from the floor and passed in accordance with the Trust’s Constitution are nonetheless in breach of natural justice and that Te Ohu Kai Moana not only has the power, but the duty, to vet and in certain cases override resolutions properly passed at the meeting of the beneficiaries. it is not appropriate, nor in the public interest, for such challenges to remain unresolved for an indeterminate period of time; and
- keeping the proceedings on foot so that they can be brought on in the event that the equal sharing proposal is brought back into consideration as the Bill passes through the House, appears to be an attempt to influence what happens in Parliament and to deter other Iwi who might wish to support equal distribution resolution through the Select Committee process.
On 20 January 2023, the Crown filed a memorandum also opposing the stay sought by Ngāi Tahu, stating that the claim against the Crown:
- is practically moot because of the introduction of the Bill; and
- breaches parliamentary privilege and other related principles.
That afternoon Ngāi Tahu filed a memorandum in response rejecting both the Crown and Te Ohu Kaimoana’s opposition to the stay, saying there is no prejudice to either defendant from a stay.
On 23 January 2023 an interested party filed a memorandum supporting the stay sought by Ngāi Tahu.
No call occurred on 27 January 2023, instead the Court issued a minute (read here):
- vacating the hearing set for 6-8 March 2023 fixture;
- revoking the present timetable for evidence and submissions;
- issuing a stay on the proceedings until 28 July 2023, at which time Ngāi Tahu is to file and serve a memorandum updating the progress of the Bill and their intentions in relation to the proceedings;
- granting Ngāi Tahu leave to bring on the proceedings, including its application for urgency, on 48 hours’ notice; and
- reserving leave for any party to make application to the Court for directions in the intervening period.
The Court considered that it would be unreasonable to have such serious allegations hanging over Te Ohu Kaimoana indefinitely, however, did not consider a six month stay of the proceedings unreasonable in the overall circumstances of the case.
On 1 February Te Ohu Kaimoana applied to the Court asking for the Court to vary or rescind its 27 January Minute. Please see our application and supporting memo for Te Ohu Kaimoana’s reasons.
In summary, Te Ohu Kaimoana considered that:
- the determination of the stay without hearing the parties in person is contrary to the reasonable expectation of the parties given the scheduled call that was supposed to have taken place prior to the decision but was not scheduled;
- the Court applied the wrong test when determining whether to adjourn the fixture, and adjourning the fixture is not in the interest of justice;
- the Court made an error when assessing the prejudice the stay would have on Te Ohu Kaimoana; and
- the Court made an error when suggesting Te Ohu Kaimoana should treat Ngāi Tahu’s 23 December Memo as effective to vacate the hearing.
On 3 February the Court held a teleconference re Te Ohu Kaimoana’s application to rescind the Court’s 27 January Minute. On 7 February the Court circulated a Minute confirming the directions made on the 3 February conference call. The Minute can be found here.
The 7 February Court Minute directed that:
- the Duty Judge in making the 27 January Court Minute was not aware that Te Ohu Kaimoana had requested to be heard on the stay application. Therefore, Court will hear oral submissions from the parties on whether the stay of proceedings is appropriate before making a decision on the stay;
- the Registrar has been directed to find a 2 hour slot after 13 February, so parties can be heard on the application for the stay;
- the fixture that was scheduled for the substantive hearing on 6-8 March has already been allocated to another fixture, and therefore cannot go ahead;
- Ngāi Tahu confirmed that if they are not granted a stay, they will discontinue the proceedings. On this basis, the Court is not going to set a new fixture for the substantive proceedings until after the hearing on the stay application.
We are now waiting to hear back from the Court when Ngāi Tahu’s stay application will be heard.
If you have any questions regarding or require any further information, please contact us via email at: firstname.lastname@example.org