High Court Weekly Summaries

• Ngāti Whātua Ōrākei began its legal case in the High Court on Tuesday, 9 February following the 7k mhīkoi from Ōrākei Marae. The Chapman Tripp team and Jack Hodder QC were humbled to receive taonga from Ōrākei whānau, which will guide them through the weeks to come;
• Ngāti Whātua Ōrākei whānau were a strong presence in the Court during the first week of the hearing – karakia and waiata were heard and acknowledged by the Court. Some Te Akitai and Ngāti Paoa/Marutūāhu representatives attended too.
• During the first half of the first week of the hearing Jack Hodder QC and the Chapman Tripp team made our introductory arguments, describing for the Judge, Ngāti Whātua Ōrākei’s long journey to settlement, the Supreme Court victory in 2018, and tikanga principles we are asking the Court to recognise.
• During the second half of the first week of the hearing, the Crown and other iwi presented a range of views, with Ngāti Paoa, Ngai Te Rangi and Ngati Kuri broadly consistent with Ngāti Whātua Ōrākei. Marutuahu, Ngai Tai Ki Tamaki and Te Akitai stressed the complexities of whanaungatanga and the inter-relatedness of the iwi of Tāmaki.
• The Crown denies that it assesses or can affect ahi kā or mana whenua. It says that the Ngāti Whātua Ōrākei individual Treaty settlement must be seen in the context of the Tāmaki Collective Settlement. 
• Court will break until 22 February. Ngāti Whātua Ōrākei witnesses will begin on Monday 22 February, beginning with Te Kurataiahao Kapea followed by Taiaha Hawke, Margaret Kawharu and Ngarimu Blair.  Te Kura will give his evidence in te reo rangatira, a rare occurence in the High Court. Karawhiua!

• Ngāti Whatua Ōrākei witnesses commenced giving evidence on Monday 22 Huitanguru, beginning with Te Kurataiahao Kapea. Te Kura spoke powerfully about Ngāti Whātua Ōrākei’s whakapapa back to the time of Hawaiki and the Mahuhu waka, through to Ngāti Whātua Ōrākei’s raupatu of the isthmus.  Te Kura gave a substantial portion of his evidence in te reo Māori. 
• On Tuesday, Taiaha Hawke gave powerful evidence about the significance of Bastion Point in Ngati Whatua Orakei’s history. The Court and counsel for other parties acknowledged the presence of the wider Hawke whānau in Court.
• Margaret Kawharu started her evidence after lunch, going through until the end of Wednesday. She gave a clear and detailed account of Ngāti Whātua Ōrākei’s history and tikanga, drawing in part on the work and writings of her father Sir Hugh (whose presence was felt). There were many moments in remembrance and honour of Sir Hugh throughout Margaret’s evidence and during her cross-examination.    
• Ngarimu Blair started his evidence on Thursday and presented strongly with a detailed account of Ngāti Whātua Ōrākei’s long settlement journey, and of our engagement with the Crown post-settlement, he also reinforced the importance of the Kawenata Tapu with Ngāti Paoa.
• It has become clear that the Crown seems to accept it has never seen its role as one which involves grappling with issues of mana whenua because it does not have that expertise, which makes it clear that it has never properly acknowledged mana whenua of any iwi.
• The Crown’s cross examination on Nagrimu continued until the end of the week, its lines of questioning were all over the place, very repetitive, and did not contribute a lot to the Judge’s thinking. This shows the Crown is struggling to disprove the case against it that its overlapping claims policy and approach to settlements in Tāmaki breached Te Tiriti and tikanga.
• Ngarimu has been absolutely impressive in cross-examination. It is easy to see he has thoroughly prepared for this moment. He is carrying the mana of Ngāti Whātua Ōrākei on his shoulders like a true rangatira. Our strong whānau presence in court and our karakia has been noted and given strength to our witnesses.

Due to the renewed Level 3 settings, the trial is adjourned for one week and will reconvene Monday 8, March.  

• On Monday Ngarimu’s cross examination continued, he has been incredibly consistent and kept very resolute, despite lengthy cross-examination by all three iwi parties in one day, much of which was not very relevant to the case;
• The Judge questioned Mr Warren (acting for Ngāi Tai ki Tāmaki Trust) as to the relevance of some evidence he handed to the Judge and the parties. This might suggest the Judge’s patience is wearing thin on the other side’s approach to cross-examination.
• On Tuesday Ngarimu completed his evidence for Ngati Whātua Ōrākei. Ngarimu remained very composed, calm and clear about Ngati Whātua Ōrākei’s history and tikanga despite long cross-examination. 
• David Williams provided evidence in support of Ngati Whātua Ōrākei today after Ngarimu’s cross examination was completed. David was presented with taonga from Ngati Whātua Ōrākei before giving his evidence. David’s evidence covered Ngati Whātua Ōrākei’s history and the role of the Native Land Court and the Ōrākei block.
• On Wednesday Lil Anderson, the Chief Executive of OTS, gave evidence for the Crown. Her answers to Ngāti Whātua Ōrākei’s questions demonstrated how much of a “moving target” the Crown’s settlement policy has been for iwi, and the confusing ways the Crown assesses whether a group should receive redress at a particular site.
• Overall, we are satisfied with the points Jack was able to draw out through his cross-examination of Lil Anderson. These show that as a matter of policy and practice, the Crown will not determine claims to mana whenua, and as a result does not appropriately respect mana whenua when settling claims.
• On Thursday Vincent O’Malley began giving his historical evidence with his cross examination continuing through to nearly the end of the day on Friday. Dr O’Malley was confident in his evidence and the methods he used to prepare it, although the other side did raise a number of issues about historical methods that the Judge will need to grapple with in making his decision.
• At the end of the day on Friday, Paul Meredith began reading his evidence, which relates to tikanga and its application in Tāmaki. He will be cross-examined next week.

• On Monday, Mr Meredith continued his evidence. `He was solid and came across as independent yet supportive of our case. The opposing parties continued to show some fundamental misunderstandings of tikanga in their lines of questioning.
• On Tuesday, Charlie Tawhiao presented his evidence, he was a dignified and impressive witness. His evidence highlighted the fact that the issues Ngāti Whātua has encountered regarding cross-claims in their rohe are not unique.  We think his evidence will go a long way to convincing the Judge to adjudicate on the key issues of mana whenua at stake. Ngāti Whātua thanked Mr Tawhiao and Ngāi Te Rangi through mihi and gifting of taonga.
• On Wednesday Ngāti Pāoa witnesses gave evidence. Although it was disappointing that some of the witnesses made statements that Ngāti Pāoa holds mana whenua in the central isthmus (contrary to the Kawenata), Haydn Solomon gave evidence upholding the Kawenata. Michael Macky presented his evidence for the Crown. Over the coming days Mike Dreaver and Leah Campbell will also give evidence for the Crown.
• On Thursday, Michael Macky finished cross-examination. Jack Hodder spent half the day questioning him about the Crown’s position in determining historical interests.  Michael conceded that the Crown’s most up to date analysis of Ngāti Whātua’s historical interests is dated around 2006, which is a helpful concession for making our case out against the Crown.
• Mike Dreaver started reading his evidence and the parties will cross-examine him tomorrow. Leah Campbell, the final witness for the Crown, may give her evidence tomorrow if timing permits. 
• On Friday we made good progress despite losing some sitting days. Ngāti Paoa have finished their evidence, and it won’t be long before we and the Crown also finish.
• Our case that the Crown does not deal with tikanga in treaty settlements is becoming clearer as we move through Crown cross examination.
• Next week, Jack Hodder QC will continue to cross-examine Mr Dreaver. The Crown’s final witness, Leah Campbell, will follow. Our last witness, Tamati Kruger, will follow and most likely be give evidence all of Tuesday.

• On Monday Mr Mahuika, the lawyer for for Ngāti Paoa, was an ally in parts of his questioning of Leah Campbell for the Crown. This exposed the pressures of collective negotiation with the Crown and other iwi. It is clear the judge’s mind is turning to the uneasy relationship between the Crown’s policy and tikanga Māori.
• The Crown is exposing through its witnesses that it was unaware of the Ngāti Whātua Ōrākei position as to its mana within its ūkaipō, which helps us prove it acted inconsistently with the tikanga of Ngāti Whātua Ōrākei in settling overlapping claims.
• On Tuesday Leah Campbell finished giving her evidence, meaning the Crown has finished presenting its defence against Ngāti Whātua Ōrākei. Later in the day, Tāmati Kruger began his evidence for Ngāti Whātua Ōrākei discussing tikanga principles and his experiences of the overlapping claims policy. Tāmati was our last witness, he came after the Crown witnesses to fit in with his availability.
• On Wednesday Tāmati Kruger completed his evidence, meaning the evidence for Ngāti Whātua Ōrākei is now complete. He spoke eloquently about the key principles of tikanga underpinning the case. Ngāti Whātua Ōrākei had a strong presence in the public gallery to support Tāmati’s kōrero.  
• On Thursday Paul Majurey opened the case for Marutūāhu, not presenting anything new or surprising. The key plank of their case continues to be that the Court should not rule on matters of tikanga. 
• We are happy with our cross-examination of the first two Marutūāhu witnesses, Hauāuru Rawiri and Tipa Compain. The biggest concession was from Mr Compain showing that Marutūāhu do recognise exclusive mana whenua in the same sense that Ngāti Whātua does.
• On Friday the lack of credibility of Marutūāhu’s evidence became more apparent, especially in cross-examination, and the judge’s patience is being tested – he seems to be more forceful in sticking to appropriate timeframes. So far, the quality and standard of Marutūāhu’s evidence has not proven to be that impressive, which is good for our case

• Court reconvened after the Easter break on Wednesday, 7 April when King Tuheitia attended Court. Joe Pihema gave a powerful mihi on behalf of Ngāti Whātua Ōrākei, to ensure he was welcomed by the mana whenua of central Tāmaki. The King’s representative, Rahui Papa, said that the King was here to observe the proceedings and acknowledge the kinship relationships between the parties from the Tainui waka.
• On Wednesday afternoon Te Warena Taua gave evidence for Ngāi Tai ki Tāmaki. It was disappointing to see Mr Taua attempt to discredit Ngāti Whātua’s mana whenua.  We will make sure we respond strongly to these points in closing submissions at the end of our case.
• On Thursday Te Warena Taua finished giving his evidence. We think cross-examination helped to undermine his credibility, and we will respond vigorously to his evidence in closings.
• Te Kahautu Maxwell gave evidence after Te Warena Taua. His evidence was generally helpful to Ngāti Whātua’s case. He helped to establish that at a general level, iwi do exercise exclusive mana whenua in their core areas, although in his view it is also possible to share mana whenua.  This means there is a level of agreement about the framework that the Court should use to assess Ngāti Whātua’s claim, even if the experts disagree on how it is to be applied in Tāmaki.
• On Friday Ngāi Tai ki Tāmaki finished its case, and on the whole we think the strength of our case has withstood their openings and evidence. Dr Maxwell, for Ngāi Tai ki Tāmaki, openly and plainly acknowledged the mana of Ngāti Whātua Ōrākei in the closing of the proceedings, nō reira, e mihi ana ki a ia i runga anō rā i tana kawe mai i te rau aroha.

We are making good progress and the evidence of all parties is well on-track to finishing early next week.

• On Monday Te Ākitai’s opening and evidence presented no surprises. Our cross-examination of Mr Derby in particular was effective in disarming some of the historical narratives that contradict our case.

• On Tuesday Te Ākitai completed the presentation of their evidence. This means that all parties’ evidence has now been presented. The next phase of the trial will be preparing and presenting closing submissions. The presentation of closing submissions will start Wednesday 21 April, with the defendants up first. We are expecting to begin presenting our closing submissions on Tuesday, 27 April.

• Court reconvened following completion of all the parties’ evidence presentation on Wednesday with the Crown beginning its closing arguments. It was disappointing to see the Crown arguing it has no legally enforceable obligations to iwi during the Treaty settlement process.

• In addition, the Crown continued to emphasise one of the main themes of its case, about needing to be sensitive to the tikanga of all iwi. The Court seems sympathetic to this view and it is something we will need to respond to carefully in our closings.

• On Thursday, the Crown finished presenting its closing submissions. Mr Majurey for Marutūāhu and Ms Coates for Te Ākitai Waiohua then presented their closing submissions. The main theme was that the Court should not rule on disputed matters of tikanga.  The Judge seems to be taking these submissions seriously, as he asked several questions about referring this case to a pūkenga.

• We intend to respond to these points in our closing submissions, by making it clear that this is a case against the Crown rather than against other iwi, and by emphasising that the Court’s function is to declare and give effect to legal rights, including rights based in tikanga.

• On Friday Ngāti Paoa’s submissions supported Ngāti Whātua’s case and went a long way to dispelling the confusion created by the opposing iwi.

• This week has been a frustrating one listening to closing submissions for the other side. We look forward to responding to those in our losing submissions.

• The Court reconvened following the ANZAC day statutory holiday on Tuesday with the closing submissions from the intervenors helped to show that the issues that Ngāti Whātua has with the Crown’s settlement policies and practices are not unique. These issues are widespread, and are supported by other iwi outside of Tāmaki.
• Ngāti Whātua Ōrākei’s closings got off to a good start. The Judge seemed interested but has not been overly critical to date. Mr Hodder today thoroughly debunked the idea that: (a) the Court should not determine disputed tikanga issues; and (b) that iwi do not share any common understandings of tikanga and mana whenua. 
• On Wednesday Jack Hodder continued to present strong closing submissions for Ngāti Whātua Ōrākei. He spent his time cementing the history of Tāmaki in the Judge’s mind, leaving little doubt that Ngāti Whātua Ōrākei has ahi kā and mana whenua in central Auckland. He then turned to the Crown’s overlapping claims policy, which he brought under serious attack.
• On Friday, the Court reconvened following a one day adjournment with Jack Hodder finishing our closings just before lunchtime. This brings an end to the hearing.
• Justice Palmer indicated he will try and give his decision within the year, but that it may be longer, which shows the depth and breadth of kōrero this case has invoked. It also shows that the judge intends to be very careful in his consideration, which is appropriate, given the immense importance of this case.
• In relation to release of the transcipt, the Judge has allowed 2 weeks for parties to provide corrections to the transcript, following which we expect the transcript to be finalised and we should allow another couple of weeks before they can be released.
• Finally, the sheer presence of the many Ōrākei uri at the Court on the final day of the trial, we think, was the best way to close off the proceedings. Not only did it uphold tikanga (being the basis of the claim), but it was also a clear portrayal of Ngāti Whātua Ōrākei’s enduring and unmatched presence on this whenua of Tāmaki.  E ngā kanohi ora i whai wāhi mai, rangatira ake nei koutou.