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Potential curve-ball in Treaty settlements

Treaty settlements could be in for a significant shakeup, as a prominent Auckland hapū seeking legal recognition for its rights over city land edges closer to its goal. Teuila Fuatai reports. 

Auckland’s Ngāti Whātua Ōrakei is set to return to court over its claim as the rightful Māori landowners of some of the city’s most sought-after real estate.

The legal case, which could have significant ramifications for both settled and unsettled Treaty claims, began nearly three years ago when Ngāti Whātua discovered the Crown was using land it believed to be part of its own Treaty of Waitangi settlement in other claim negotiations.

At the time, the city-based hapū challenged the process by applying for a judicial review.

When the bid for a review was struck out by the High Court, and that verdict endorsed by the Court of Appeal, a decision released by the Supreme Court on Tuesday in favour of Ngāti Whātua will enable it to argue its case in the country’s top court.

When they settled with us in 2012, that included a respect for and recognition of our tribal boundaries, but also our customs and our tikanga.

At the crux of the dispute is Ngāti Whātua’s belief that the Crown breached its settlement obligations by offering a raft of properties located in the hapū’s “core area of interest” to Ngāti Paoa and the Marutūāhu Collective (five other Thames-based iwi).

The properties included sites at Dominion Road and Grafton Road for Ngāti Paoa. Parnell's picturesque Fred Ambler lookout site, as well as properties on Garfield Street and Grafton Road. Also five school sites were among the proposed package for the Marutūāhu Collective settlement. 

Ngāti Whātua objected to the proposed settlements because it said the properties were within its rohe - core interest area. The Crown, and the other Māori groups, should have consulted with the hapū as part of its "first right of refusal" written into its 2012 Treaty settlement specifically for these types of properties, it said. 

 Shifting goal posts

“What we have seen in the rollout and implementation of the cross-claims policy of the Office of Treaty Settlement in recent years has been a transgression of our tikanga in that they’re offering other tribes land from our heartland as settlement for their grievances without getting the approval or even asking the opinion of Ngāti Whātua Ōrākei,” hapū spokesman Ngarimu Blair said.

“When they settled with us in 2012, that included a respect for and recognition of our tribal boundaries, but also our customs and our tikanga.”

The Crown, alongside the Marutūāhu Collective and Ngāti Paoa, initially challenged the notion of a judicial review by arguing that the decision Ngāti Whātua was objecting to did not not exist. The three parties focused specifically on the early stage of the respective treaty settlements processes, and said that only once legislation was passed enabling the transfer of properties to Ngāti Paoa and the Marutūāhu Collective, could a potential wrong against Ngāti Whātua be considered.

Another added layer of complexity in the case has been the interaction between the role of the judiciary and the impact on potential policy decisions in Parliament. The Court of Appeal’s Justice Mark Cooper touched on this in the December decision:

“We accept as a matter of practicality that it is likely that the legislation introduced into Parliament by the Minister implementing the disputed decisions will be passed.

“But it would be inappropriate as a matter of principle for the Court to proceed on the basis that that is a foregone conclusion, or that the Parliamentary process is less than satisfactory. That would be speculative and inappropriate.”

"Our day in court"

Blair told Newsroom: “All we want is to have our day in court where we can have those arguments to say that our tikanga is a part of common law and has been recognised in our Treaty settlement.

It could mean the Court would have to start engaging in a relatively sophisticated way around those questions of tikanga, what it means, how it is enforced.

“Those tribes that are claiming into our heartland should have the courtesy of asking us first for certain properties, along with the Crown.”

Tikanga, or customs, are intertwined with the principle of mana whenua in Māoridom. The group which holds the mana whenua in a certain location are the primary caretakers of that land.They are responsible for what happens on the land, and conduct activities according to its customs or tikanga. Outside groups must respect the authority of those who hold mana whenua, and the tikanga they practise. 

In this vein, an out of court settlement between Ngāti Paoa and Ngāti Whātua was reached “kānohi ki te kānohi on the marae” (face to face, or in the flesh) over the two disputed land parcels on Dominion Rd and Grafton Rd last year.

Blair: “There is a sacred kawenata or covenant and that was signed on our marae in front of our respective families and tribes. That paved the way for future negotiations which essentially had Ngāti Paoa acknowledge that Ngāti Whātua are the primary mana whenua for central Auckland,” he said.

“They asked for our consent to those properties, and on the basis of them recognising us, we consented to those properties transferring to them from the Crown.”

That is reciprocated by Ngāti Whātua when it operates in East Auckland and parts of the North Shore, where it recognises Ngāti Paoa as holding the primary mana whenua in those areas.

Tikanga and mana whenua as legal principles

However, as demonstrated in this case, a Court considering treaty settlements is yet to unpick the process surrounding mana whenua when there are overalapping interests. 

Should Ngāti Whātua succeed in defining the "boundaries" for the land it holds mana whenua for in Court, both the Crown, and past and yet-to-be settled Treaty claims may have another legal avenue to consider. 

Victoria University senior law lecturer Carwyn Jones said if the Supreme Court overturns the original judicial review strike-out decision, it could pave the way for the legal recognition of principles like tikanga and mana whenua.

Generally, that has been the domain of policy makers rather than the Courts when it comes to Treaty settlements, he said.

“However, the Supreme Court may be willing [in this case] to unpack that a bit. It could mean the Court would have to start engaging in a relatively sophisticated way around those questions of tikanga, what it means, how it is enforced.

“If it’s successful, it will also have an impact on how the Crown engages in settlements, and in part on how it engages with groups who have already settled.”

Meanwhile, the Supreme Court case is expected to be set down for early May. Requests for comment from the Marutūāhu Collective have not ben returned.

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