Ngāti Whātua Ōrākei is fighting for another chance to stop land in central Auckland from being offered to neighbouring tribe Ngāti Paoa.
But the Court of Appeal has been told the courts have no place deciding what can and cannot be included in Treaty of Waitangi settlements.
Auckland iwi Ngāti Whātua Ōrakei says it has first right of refusal to Crown land sales within its Auckland heartland. Photo: 123rf.com
Treaty of Waitangi Negotiations Minister Chris Finlayson has offered the land to Ngāti Paoa as part of its settlement.
In March, Ngāti Whātua Ōrākei Trust tried to challenge the move and clarify the negotiation process but the High Court declined to hear its case.
In the Court of Appeal today, the trust's lawyer, Jack Hodder QC, said the Crown would not resolve issues of overlapping iwi boundaries - so the court should.
"The court is essentially saying that it cannot deal with it," he said.
Mr Hodder said Ngāti Whātua Ōrākei had exclusive mana whenua rights that would continue despite the minister's decision.
"Before settling with other iwi, they need to understand the legal position of Ngāti Whātua Ōrākei."
In his judgement in March, High Court Justice Davison said the decision by the minister involved political and fiscal factors.
He said there was no yardstick to examine and assess whether they were made pursuant to a lawful exercise of public power.
But today Mr Hodder said, politics aside, Ngāti Whātua Ōrākei's legal rights would be affected by the transfer of the lands and its case should be heard.
Ngāti Paoa's lawyer, David Goddard QC, said it rejected Ngāti Whātua Ōrākei's assertion of exclusive mana whenua in this land.
In his submission, he said the properties did not feature in the final Ngāti Whātua Ōrākei Deed of Settlement and settlement legislation.
He said the decision to transfer those lands to Ngāti Paoa would only be authorised by Parliament, therefore the courts could not interfere with the proposal.
The appeal will run for two days.
