Ngāti Whātua Ōrākei Trust can pursue a claim against the Crown over land but has lost its Supreme Court bid to have settlements with other iwi declared invalid. 

“We consider the appeal should be allowed in part with the result that Ngāti Whātua Ōrākei can largely pursue its claim for declarations as to its rights,” Chief Justice Sian Elias and Justices Mark O’Regan, Terrence Arnold, William Young and Ellen France said in a judgment today. 

The ruling means Ngāti Whātua can seek a series of declarations that would force the Crown to recognise the iwi’s mana in relation to the land and require consultation. However, the judges wouldn’t let Ngāti Whātua declare settlements with Ngāti Paoa Iwi Trust and the Crown and Marutūāhu Rōpū Limited Partnership as invalid. 

“We have been seeking the chance to have our case heard in court for over two years, but the Crown has continually blocked us from doing so,” said Ngāti Whātua deputy chair Ngarimu Blair. “We will now be able to go to the High Court and get clarity about the legitimacy of our rights as Ahi Kā and how the Crown should acknowledge those rights.”

The case related to a proposed settlement of historical treaty claims between the Crown and Ngāti Paoa and with Mārutūāhu, involving commercial properties in central Auckland. 

Ngāti Whātua settled a claim in 2012 but other Auckland iwi and hapu successfully argued their interests had been adversely affected by that deal. The Crown then entered a collective settlement.  

The deal provided for complementary settlements with different groups in the future and included a right of first refusal relating to Crown-owned property in the Auckland area in favour of an entity representing the collective. 

Under the proposed settlement with Ngāti Paoa and Marutūāha, the central Auckland property would be withdrawn from that first right of first refusal and transferred to them. This would require legislation.

Ngāti Whātua, however, argued the land in question should not be part of settlements for Mārutūāhu and Ngāti Paoa as it lies within its heartland.   

It brought judicial review proceedings, challenging the decision, saying it was owed various process rights including consultation before such decisions relating to the transfer of properties in central Auckland to other iwi or hapū could be made by the minister.

The Attorney General sought to strike out the claim arguing it was an attempt to directly challenge a decision to legislate and so engaged the principle of non-interference with parliamentary proceedings. 

The High Court previously ruled the declarations sought did relate to decisions made in the context of the development and preparation of legislation and therefore ruled against Ngāti Whātua. The Court of appeal upheld the High Court decision. 

In a minority opinion, the Chief Justice said she would have upheld Ngāti Whātua’s claims in full. 

The Supreme Court awarded Ngāti Whātua costs of $25,000 plus disbursements. 

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