Waitangi Tribunal decision 'inconsistent' with Treaty tikanga

Tuesday, 30 March 2021

The High Court has upheld some judicial review challenges of a Waitangi Tribunal preliminary decision.

A Wairarapa iwi’s attempt to claim ownership over $800 million of public assets, including land as far north as Waikato, has been knocked back in a precedent-setting court decision.

In its decision published on Tuesday, the High Court ruled the Waitangi Tribunal was not consistent with the “tikanga of the Treaty” when it proposed awarding land including a hydropower scheme at Mangakino to a Wairarapa iwi.

The High Court upheld judicial review challenges brought by the Crown, Mercury NZ Ltd, and the Raukawa Settlement Trust against a decision that lands be returned to Wairarapa-based Ngāti Kahungunu for historic breaches of the Treaty of Waitangi.

In a preliminary decision in March last year the Tribunal proposed that two areas of land be returned to Ngāti Kahungunu ki Tāmaki-nui-a-Rua: Ngāumu Forest in the Wairarapa, and the Pouākani lands, which was 318 hectares of land in the central North Island which housed the Maraetai power station complex.

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Maraetai Hydro Station at Mangakino under construction.

The total value of the land and associated compensation was estimated to be around $800m.

Though the Wairarapa iwi did not have rohe over the Mangakino property, it previously owned a parcel of land in the area as part of an earlier Government compensation package.

After Ngāti Kahungunu had important food gathering resources in the lower Wairarapa valley taken from them through development over a century ago, the Crown compensated it with a block of land in the central North Island.

At the time the land was worth little, but in 1949 it was bought back by the Crown for 510 pounds to build the Maraetai power scheme.

Vanessa Eparaima of Raukawa said Ngāti Kahungunu should have approached their claim in a more tikanga based way.

The Waitangi Tribunal in March last year said the Crown wrongly seized the land and should have better compensated the iwi due to the land’s inherent capability for hydro generation.

The owners of the land, Mercury NZ and the Crown, challenged aspects of the Tribunal’s preliminary decision in the High Court and sought a judicial review.

The High Court judge upheld the applicant’s view that the Tribunal’s decision to award the land to Wairarapa iwi did not fit with the principles of the Treaty of Waitangi.

“Directing the land be transferred to an iwi that has no mana whenua in the land conflicts with the rights of the iwi that do, and this is inconsistent with tikanga and the principles of the Treaty,” Justice Cooke said.

The iwi authority that has mana whenua over the Pouākani area was also party to the Crown’s case.

Raukawa, along with Ngāti Tūwharetoa, challenged the preliminary determination on the basis that the Tribunal erred in finding that the Pouākani lands lying within their traditional rohe could be returned to Ngāti Kahungunu who had no customary association with this area.

Raukawa chairwoman Vanessa Eparaima said her iwi was grateful and relieved by the High Court ruling.

“The High Court has recognised our mana whenua and has stopped the Waitangi Tribunal repeating mistakes that the Crown made over 100 years ago. It has recognised the fundamental importance of tikanga for the way the Tribunal works.”

Justice Cooke said the Tribunal had also “erred” in thinking it had power to make binding decisions that land be transferred as a remedy for wider Treaty breaches suffered by Ngāti Kahungunu.

“The Treaty breach needed to concern the particular land in question. It contemplated a breach by the Crown when acquiring title to the land being returned.”

The Tribunal was directed to reconsider the claims in light of the findings in the High Court judgment.