30 Mar 2021

High Court overturns Waitangi Tribunal decision to return lands to iwi outside tribal boundaries

8:12 pm on 30 March 2021

The High Court has overturned the Waitangi Tribunal's decision to order the return of land valued at over $800m to Ngāti Kahungunu which sits outside of its tribal boundaries, saying it breached tikanga.

18072016 Photo: Rebekah Parsons-King. Wellington High Court.

Photo: RNZ / Rebekah Parsons-King

The decision, made on 24 March 2020, said the Ngāumu Forest in Wairarapa and Pouākani in the central North Island should be returned to Ngāti Kahungunu as a remedy for historic breaches of the Treaty of Waitangi.

The Waitangi Tribunal can typically only make recommendations, but it does have power under section 8A and 8HB of the Treaty of Waitangi Act to order the Crown to return State-Owned Enterprises and Crown forestry lands to iwi.

However, the Crown, Mercury Energy and the Raukawa Settlement Trust said the Tribunal misinterpreted these powers by ordering the transfer of 787 acres at Pouākani in the central North Island, as it is outside the rohe of Ngāti Kahungunu.

Ngāti Raukawa and Tūwharetoa are mana whenua of Pouākani. Both iwi have already settled their treaty claims.

In its decision, the Waitangi Tribunal had considered the Treaty of Waitangi Act was remedial in natural, and there were well-founded claims concerning Māori land which led to Ngāti Kahungunu ki Wairarapapa Tāmaki nui-ā-Rua becoming "virutally landless".

It said there was a "general connection" between the claims and the subject land.

Crown lawyer Mike Heron QC argued the Tribunal's powers only extended to lands where the breaches have occured, and it had considered other Treaty breaches, that the resumption powers did not apply to.

"The Tribunal could not make binding recommendations to compensate generally for total tribal land loss," the judgement said, citing Heron.

"The sections [of the law] did not exist to provide a substitute or alternative financial remedy for general Treaty breaches, but to provide a specific remedy for specific lands".

Those other Treaty breaches refer to the Wairarapa Lakes - Lake Wairarapa and lake Ōnoke - which were used by mana whenua as a food source until European settlers dug a channel to drain Ōnoke so they could use the land around the lakes for farmland.

This disrupted mahinga kai (traditional food gathering) and resulted in petitions to Parliament and court action before it was agreed between Wairarapa Māori and the Crown to transfer title in the lakes to the Crown, and for the Crown to provide Māori owners with alternative land in the area.

This didn't happen, and instead the Crown transferred Wairarapa Māori the lands around Pouākani, which it then starting developing a hydro-electric power site (now the Maraetai Power station) on, without the consent of the Māori landowners, eventually leading to the Crown reacquiring the land.

Mercury Energy, which owns the Maraetai Power station, and Raukawa argued that the law "did not permit an order for return of land to claimants who lack a tikanga based connection to it".

Justice Francis Cooke agreed, saying the jurisdiction the law covered was "intended to be more specific".

He said it was not the the role of the Tribunal to order the return of lands which were of a high enough value to remedy the overall impact of the Treaty breaches of Ngāti Kahungunu.

The Court upheld the claim by The Raukawa Settlement Trust that it was wrong for the Tribunal to order the Pouākani lands to Ngāti Kahungunu because they were not mana whenua.

It also upheld the Tribunal had wrongly assessed the compensation to be provided with the return of the Ngāumu Forest, which is within the traditional rohe of Ngāti Kahungunu.

Mercury NZ also challenged the decision of the Tribunal to not let it be involved in the hearings, which Justice Cooke dismissed.

In outlining his decision, Justice Cooke acknowledged the importance of such a review.

"The Tribunal's resumption jurisdiction has hardly ever been exercised ... I believe I am well placed to observe that it has taken a generation for this to occur.

"This case is accordingly important, and will likely proceed further on appeal."