A Wairarapa woman has won her appeal to receive legal aid after a High Court argument over semantics.
The interpretation of the term “in respect of” was central to the dispute.
The recently published High Court decision said Ryshell Griggs initially appealed against a Legal Aid Tribunal decision after the Legal Services Commissioner declined her application for legal aid.
The decision said Griggs was receiving legal aid for a representative claim before the Waitangi Tribunal on behalf of Ngai Tumapuhia-a-Rangi Hapu; the claim is known as Wai 429.
Ngai Tumapuhia-a-Rangi Hapu are a hapu of Ngati Kahungunu ki Wairarapa.
The decision said part of the hapu’s claim was an unresolved application for resumption of two blocks of land: The east-Masterton Ngaumu Forest, which is located in the centre of their traditional rohe, and the Pouakani Lands in the central North Island.
It said legal aid was available for representative claims before the Waitangi Tribunal.
“This claim is a legally significant one as the tribunal’s resumption jurisdiction has seldom been exercised, and there is much at stake for a number of parties.”
The decision said Mercury NZ Ltd, the Crown, and the Raukawa Settlement Trust had sought judicial review of preliminary determinations of the Waitangi Tribunal relating to Ngai Tumapuhia-a-Rangi’s claim.
“Various parties appealed the High Court’s judicial review decision, and Ms Griggs sought legal aid so as to be able to participate in those appeal proceedings.”
It said the three groups were involved in judicial review proceedings because that one of the blocks of land they sought resumption for, the Pouakani Lands, was not in the traditional rohe of Ngai Tumapuhia-a-Rangi Hapu, but was found in the central North Island.
It said the Pouakani Lands were the traditional rohe of Ngati Raukawa and Ngati Tuwharetoa.
Griggs argued that the Legal Aid Tribunal was incorrect by deciding that section 47 of the Legal Services Act 2011 applied only to proceedings in the Waitangi Tribunal, as opposed to proceedings in other courts that arose from, and directly related to, proceedings before the Waitangi Tribunal.
“She seeks an order that her applications for legal aid in respect of proceedings before the Court of Appeal and the Supreme Court, that followed a High Court judicial review challenge to a decision of the Waitangi Tribunal, be granted.”
The decision said the Legal Aid Tribunal had agreed with the commissioner that the intention of section 47 of the Act was clear from the text.
“Legal Aid is available, as an exception to the prohibition on such aid for representatives, for proceedings “before” the Waitangi Tribunal.”
Griggs said that the Legal Aid Tribunal was wrong to say the phrase “in respect of any proceedings before the Waitangi Tribunal” was not ambiguous.
“She says the related proceedings arise directly from the Waitangi Tribunal proceedings and have clearly had an effect on the task of the Waitangi Tribunal.”
She said they were, therefore, “in respect of” those proceedings.
Griggs said the commissioner’s interpretation of section 47 of the Act was inconsistent with the reason why legal aid was available for Waitangi Tribunal claims.
The commissioner argued that the requirement in section 47 for the Waitangi Tribunal to provide a report to the Commissioner containing certain information is a clear indication that Parliament expected the section 47 “exception” to only apply to proceedings in the Waitangi Tribunal.
The decision said the appeal was allowed; the decision of the commission was quashed, and the decision relating to Ms Griggs’ legal aid was remitted back to the Commissioner for Mercury NZ Limited v Waitangi Tribunal.
“My preliminary view is that Ms Griggs is entitled to costs.”
The justice did not say what those costs were.
