Public Interest vs Private Interest – What is the core nature of your dispute?

A recent costs judgment in the High Court, Ngāti Te Ata v The Minister For Treaty of Waitangi Negotiations & Ors [2018] NZHC 915, undertook an analysis of Rule 14.7(e) of the High Court Rules 2016 which empowers the Court to refuse to make an order for costs if the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably during the proceedings.

Ngāti Te Ata made an application for judicial review on the basis that the Minister for Treaty Negotiations had acted unreasonably in his decision to require the early transfer of two properties classified as right of first refusal land by the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 for an individual Treaty Settlement with Ngāti Tamaoho.  The Minister’s decision was deemed to be reasonable and the application for judicial review was dismissed.  Costs were accordingly sought against Ngāti Te Ata.

Undertaking a review of Rule 14.7(e) Justice Whata in the High Court identified that the current legal position is that a claim involving public law issues will not justify a departure from the usual rule of awarding costs.  While the litigation did not need to be motivated by pure public interest, a significant private interest in the outcome will strongly influence the Court’s decision to not depart from the usual rule.

Justice Whata accepted that there are cases involving the interpretation and application of Treaty settlement legislation where the ordinary costs principles have not been applied.

Further, it was accepted by the High Court that the discharge of the Crown’s duties to Māori serves the public interest.  However, Justice Whata was satisfied that on the facts of the present case, the usual rule should apply.  Whilst there were elements of public interest within the proceedings, at its core, the proceedings were based upon competing claims by two iwi to the same land. 

The key elements highlighted by the Judge suggested that this was merely an inter-iwi dispute rather than a public interest proceeding where:

• No other iwi joined the proceeding.  Further iwi involvement is expected if the litigation is genuinely considered to raise a matter of wider importance to the potentially affected iwi; and
• The nature and content of the affidavit evidence filed in this matter highlighted the private interests of the litigation.  In particular, strong allegations were made supporting Ngāti Te Ata’s claim and depreciating Ngāti Tamaoho’s claim to the lands subject to the litigation.  This reinforced the impression that, at its heart, this is an inter-iwi dispute.

When an iwi is deciding whether to challenge the decision of the Crown relating to Treaty Settlements it is important to consider the nature of the proceedings in light of the above discussion provided by Justice Whata.  Litigation is an expensive process therefore we suggest that before proceeding with an application for judicial review, consider carefully whether the dispute is in the public interest or if it is, at its core, an inter-iwi dispute.

If you would like further information please contact Kylee Katipo on 07 958 7424.