In its latest Treaty settlement rights decision, the Supreme Court details why the High Court has the authority to test ownership rights to some of Auckland’s best real estate – despite the Government having alternate plans in play. Teuila Fuatai reports.

It was a day of early vindication for Auckland’s Ngāti Whātua Ōrākei. The central city hapū, often referred to as the city’s biggest landlord, yesterday overcame the latest hurdle in its battle to have customary ownership rights enshrined in the law.

A full-bench decision from the Supreme Court gave the green-light for the hapū to argue its case – which looks at ownership rights to nine Auckland properties – in the High Court.

The decision overturned previous findings from the Court of Appeal and High Court. The properties, which include the Auckland Grammar and Epsom Girls’ Grammar school sites, as well as the picturesque Fred Ambler lookout in Parnell, have been proposed as part of the Treaty settlement with five other Hauraki iwi groups – known as the Marutūāhu Collective.

Ngāti Whātua objections to the Marutūāhu arrangement revolve around the Crown’s failure to consult with it over ownership of the nine properties. It believes the Crown breached its settlement obligations with the hapū because it did not offer it ‘first right of refusal’ to the nine properties before including them in the proposed Marutūāhu Collective settlement. The hapū’s first right of refusal to Crown-owned properties was agreed as part of its 2012 Treaty settlement. It is now seeking to have its ahi kā and mana whenua (authority and ownership rights) in Tāmaki Makaurau legally recognised. Should it be successful, it would be more difficult for the Crown to pass legislation overriding the hapū’s first right of refusal.

The ruling highlights that there are serious questions about the way the Crown approaches overlapping claims

Ngarimu Blair, Ngāti Whātua Ōrākei

Notably, a separate agreement between Ngāti Paoa – a prominent iwi group in the Marutūāhu Collective – and Ngāti Whātua has been reached beyond the court. As part of that, Ngāti Paoa has formally recognised the authority of Ngāti Whātua in the region. Ngāti Whātua have since said it would have no issue in Ngāti Paoa gaining properties as part of the Treaty settlement process. However, it remains offside with the other four iwi groups in the Marutūāhu Collective.

Politicians do not influence the Court

In yesterday’s decision, the bench majority examined the emphasis placed by the lower court decisions on proposed legislation, which if passed, would determine ownership of the relevant properties. Chief Justice Dame Sian Elias, who had a more favourable position on Ngāti Whātua’s case, wrote her own section of the judgment.

The other four justices said: “There remains questions about the exact scope, qualifications and basis of the principle of non-interference in parliamentary proceedings.”

“It is not necessary in the present case to resolve the exact metes and bounds of the principle.”

However, “it would be overbroad to suggest that the fact a decision may potentially be the subject of legislation would always suffice to take the advice leading up to that decision out of the reach of supervision of the courts”.

“That would be to ignore the function of the courts to make declarations as to rights,” the justices said.

Elias added to this, and in her own way, issued a strong message to her bench peers on upholding the mandate of the Courts in cases clouded in political posturing.

“It has been suggested that it is inappropriate to determine existing rights or to declare what the existing law is where the executive has indicated it intends to ask Parliament to change the law because to do so would encroach upon the legislative function,” she said.

“This creep in restriction of established constitutional obligations of courts not to interfere in proceedings in Parliament is put on the basis that it observes appropriate ‘comity’ between the courts and the legislature. I consider it an unwarranted extension of proper principle.”

Earlier this year, Minister for Treaty negotiations Andrew Little stood firm on his commitment to seeing the Marutūāhu Collective settlement finalised. At the time, Ngāti Whātua criticised Little for refusing to halt the settlement process – citing the then-ongoing Supreme Court process.

For Elias, no external influences – like Government policy announcements – will detract from the Courts’ responsibility to “citizens who seek to have their existing legal interests and rights determined”.

“The constitutional functions of the courts are not enlarged by this approach. Rights in issue in the courts may always be changed by legislation,” she said. 

“The prospect does not deflect the courts from carrying out their present responsibilities. Nor are they deflected by statements of government policy that legislative change will be sought. Such statements cannot mark out no-go areas for the courts,” Elias said.

It’s time to korero, again

Victoria University senior law lecturer Carwyn Jones said the case could lead to the Crown adjusting its overlapping claims policy, and possibly taking a more enlightened approach to issues like Treaty settlements which are rooted in tikanga principles. 

Currently, iwi groups must decide amongst themselves which has the “predominant interest” in an area before the Treaty settlement process. If there is a dispute – not uncommon among the remaining 10 percent of unsettled Treaty claims – the Crown maintains that the dispute “can only be resolved by those groups themselves”. “The Crown can only settle the claims of the group with which it is negotiating, not other groups with overlapping interests,” the Office of Treaty Settlements states. 

Jones believes should Ngāti Whātua’s decide to have its day in the High Court, the case would lead to “an examination of whether those particular substantive things that Ngāti Whātua [like mana whenua and ahi kā] point to are relevant to dealing with Treaty settlements”. 

“It potentially raises some very interesting issues in terms of how far the Courts are going to get engaged in assessing things like mana whenua, or even how far the Courts think the Crown should get engaged in assessing [these principles]”.

For Ngāti Whātua, deciding whether to take the next legal step is the first point of order. 

Ngarimu Blair, deputy chair of the Ngāti Whātua Ōrākei trust, publicly invited Little and leaders of the Marutūāhu Collective “to come back to the table and kōrero with us” following the publication of the Supreme Court decision. 

“The ruling highlights that there are serious questions about the way the Crown approaches overlapping claims and its relationships with Ngāti Whātua Ōrākei and all settled iwi,” Blair said.

“It’s been extremely disappointing that the Crown has ignored tikanga in its proposed settlements and that the leaders of Hauraki iwi refused to participate in a tikanga-based approach to resolve these issues.”

Little did not want to comment on the decision as the case was still before the court.

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