*This article first appeared on RNZ and is republished with permission.
Some in the Māori legal community have expressed concern at the High Court’s use of tikanga to overule the Waitangi Tribunal, and questioned whether it has the expertise to do this.
The High Court has overturned the Tribunal’s order that $800 million of Crown-owned land in the central North Island should go to Ngāti Kahungunu, arguing the iwi were not mana whenua of that area.
The Waitangi Tribunal has never fully exercised its power to order state-owned assets or Crown forestry land to be given back to iwi.
It intended to use the powers in relation to the Tūrangatukua settlement, before an alternative agreement was reached, and it was also considered by the Muriwhenua Land Tribunal but no order was made.
In the Haronga vs Tribunal Supreme Court case, which considered whether part of the Mangatu State Forest be used as reparation for historical Treaty breaches suffered by iwi of Tūranganui a Kiwa, the Supreme Court held the Tribunal had acted unlawfully by not considering an urgent resumption hearing, which it then ordered.
Victoria University associate professor of law Carwyn Jones said because the Tribunal has been ultra conservative in using this power, the push back by the Crown was significant.
“It is somewhat concerning that where the Tribunal is willing to do that it seems, or it has at least made a preliminary determination that is what it’s considering, that there are then these other restrictions placed on it”.
He said it was “convenient” for the Tribunal to be constrained by tikanga in how it exercised its resumption powers, whereas most other Crown actions were not constrained.
“If it’s inconsistent with tikanga for Ngāti Kahungunu to have ownership of those lands, surely it’s also inconsistent with tikanga for Mercury Energy to have ownership of those lands, so it’s interesting to see there seems to be a different standard being applied to different kinds of Crown action there”.
In its decision, the Waitangi Tribunal acknowledged the tikanga issues in relation to mana whenua, but it placed more weight on a need to remediate Treaty breaches which it said left Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua “virtually landless”.
It also considered the Treaty breach of Pouākani, which despite being outside of the iwi region, became a part of the Ngāti Kahungunu ki Wairarapa Tāmakai nui-ā-Rua and Wairarapa Moana claims because it was used as reparations for the Crown draining their lake, Ōnoke.
Ngāti Kahungunu chair Ngahiwi Tomoana said the iwi did not want reparations “to be at the expense of other iwi”, and the Crown had created a bigger mess to fix its original mistake.
“The Crown has turned on itself and now it’s trying to squeeze that decision to death with its own superior, self-imposed power”.
Lawyer Annette Sykes said the case was complex and raised questions about who had the right to determine the application of tikanga.
“That’s of course the conundrum because you’ve got a High Court making proclamations over a jurisdiction which I believe has the best experience and understanding of tikanga of Māori in this country since the inception of Pākehā law.
“He’s very clear in his judgment, the presiding officer, his view is that the Tribunal’s determination did not fully comply with tikanga and therefore he’s suggesting that it need to be re-thought through a better tikanga lens, and that’s where the difficulties come because you have a High Court judge and you wonder where his experience in tikanga is being derived from,” Sykes said.
She said while tikanga Māori should be decided on by “specialist knowledge keepers in tikanga”, she accepted the High Court had the power to appeal Waitangi Tribunal decision, and the Justice had exercised this.
Sykes was encouraged by the fact the judgment stated tikanga Māori was law.
“I know that tikanga Māori advocates like myself that have always seen the equivalent of tikanga Māori with Pākehā law will be pleased that some of the advocacy of the last forty years is now infiltrating its way to become an ordinary part of judgment.”
The decision would likely be appealed. Jones expected it could go all the way to the Supreme Court.