A milestone High Court judgment sets aside a Waitangi Tribunal decision to return $800m in state-owned land to an iwi because the tribunal did not follow tikanga Māori and breached the Treaty

The High Court has overturned a Waitangi Tribunal decision on the return of $800m of public lands, in a finding that the judge says has taken a generation to occur and will likely be appealed because of its importance.

Crucially, Justice Francis Cooke declared the tribunal had been in breach of the Treaty of Waitangi and not followed tikanga when it decided lands transferred to state-owned enterprises or in Crown forests in the central North Island should be returned to the Ngāti Kahungunu iwi.

The tribunal's preliminary proposal to return two areas known as the Pouākani lands, and with a combined value of $800m, arose from Treaty breaches by the Crown identified in the Tribunal's 2010 report Wairarapa ki Tararua. In early 2020 the tribunal decided to exercise its power of 'resumption' - to order the return of the land.

Another iwi group, the Raukawa Settlement Trust, and the Crown took the Tribunal to the High Court challenging its power to return that land under the Treaty of Waitangi Act to Ngāti Kahungunu.

One of the grounds on which Raukawa sought a judicial review was that the Tribunal erred because the Pouākani lands are not in Ngāti Kahungunu's rohe, or traditional area, but in the traditional lands of Raukawa and Ngāti Tūwharetoa. They said "the Tribunal's proposed decision is accordingly unlawful as it is inconsistent with the Treaty and with tikanga".

Separately, the Crown also asked the judge to review the Tribunal's decision over compensation for the land in the Ngāumu Forest.

The groups who stood to gain from the Tribunal decision, Wairarapa Moana and Ngāti Kahungunu, argued it was not able to be challenged via judicial review because at this stage it was still preliminary, and thus capable of change before being finalised.

"The Tribunal cannot order that land that has never been owned by Māori should be transferred to Māori under the resumption powers. That is so even if that land were seen to provide the best remedy."

But Justice Cooke said "the judicial review jurisdiction of the Court is fundamental... It is for the Court itself to control the scope of the jurisdiction." He said the Tribunal had reached firm conclusions even in its 105-page preliminary finding, and "its view of the law is not a preliminary one".

While he acknowledged any judicial review by him "is highly likely, irrespective of the outcome" to be appealed to the Court of Appeal and potentially Supreme Court, he found it would be "decidedly unhelpful" not to address the challenges from the applicants.

Crown lawyer Mike Heron QC told Justice Cooke the Tribunal had erred in using the lands concerned to resolve general Treaty breaches, and not as specific remedies for issues over those specific lands.

Raukawa argued the law did not permit an order for return of land to claimants who lacked a tikanga-based connection to it. 

But Wairarapa Moana and Ngāti Kahungunu said the Tribunal was following a liberal interpretation of the words "relates to", was a specialist body authorised to make the more general assessments contemplated by the law and that 'land in lieu' was part of the thinking in the original background material to the law's passing.

Justice Cooke recognised it could be argued the Court should not scrutinise the decision of the Tribunal, "a highly specialised body" with considerable expertise, or that the Court should indeed scrutinise the decision, involving land assets and associated compensation valued at $800m, for the very reason there was no later right of appeal against that finding.

But he said the Court should simply consider whether decisions were made lawfully - "whether the Tribunal correctly interpreted its statutory powers, that it took into account the considerations Parliament intended and ignored those that are irrelevant".

Citing passages of the Treaty of Waitangi (State Enterprises) Act 1988, the judge said they involved "the return to Māori ownership" of the land in question. "The land must previously have been in that ownership. That is also implicit in the concept of 'resumption'," Justice Cooke said.

He found the Tribunal's approach of returning land other than that specifically related to a breach of the Treaty could mean land could be ordered returned to an iwi "even where there is no criticism of the manner in which the Crown acquired title.

"That seems to me to involve an interpretation dislocated from the Treaty and the special relationship between Māori and the land that is at the heart of these provisions."

He said mention of a 'land in lieu' system was misplaced. "The Tribunal cannot order that land that has never been owned by Māori should be transferred to Māori under the resumption powers. That is so even if that land were seen to provide the best remedy."

Justice Cooke acknowledged that Wairarapa Moana, to whom the Tribunal proposes to return some of the land had suffered "a remarkable story of injustice" in repeated breaches of the Treaty by the Crown over its legal title to lakes Wairarapa and Õnoke, and compulsory acquisitions of land for a power scheme.

But he did not accept that the Tribunal's 'resumption power' was the way to remedy such breaches or wider land-based breaches suffered by Ngāti Kahungunu.

It could not build a land bank - "a source of land to be used to remedy the Crown's Treaty breaches more generally". 

"To decide that ancestral lands in the rohe of one iwi should be transferred to another iwi who has no such connection as part of a Treaty remedy is not consistent with the principles of the Treaty."

The judge said: "The Tribunal's function was not to conduct an inquiry into the overall impact of all the Treaty breaches on Ngāti Kahungunu peoples, and then order the return of lands having a high enough value to potentially assist in remedying the undoubtedly profound economic, social and cultural damage caused. The jurisdiction in question was intended to be more specific."

The Tribunal had found Ngāti Kahungunu did not have a relationship of tangata whenua to the Pouākani land - and that it was only "the happenstance that compulsorily-acquired land at Pouākani is valuable" that gave rise to it being an appropriate remedy.

Justice Cooke: "The land is being treated as equivalent to $800m in a bank account for the purposes of assessing the appropriateness of return as a remedy. In my view, this illustrates the error in approach."

Raukawa, acting for itself and Ngāti Tūwharetoa and supported by the Crown, challenged the Tribunal's decision that the "Pouākani lands lying within their tradition rohe could be returned to Ngāti Kahungunu, who has no customary association with this area."

"They say that this decision is unlawful as being inconsistent with tikanga and involves a further contemporary breach of the Treaty."

Raukawa argued there was no doubt Wairarapa Māori were deserving of compensation, but to use the land within the takiwā of Raukawa and Ngāti Tūwharetoa to do so was not appropriate.

The Wairarapa Moana and Ngāti Kahungunu view was the Tribunal had particular expertise in tikanga and had considered issues of mana whenua and tikanga in detail.

"Moreover, the Treaty claims of Raukawa and Ngāti Tūwharetoa had been settled and compensation had been paid by the Crown." Wairarapa Moana currently occupied the wider areas at Pouākani and that had preceded the Tribunal decision.

Justice Cooke said the Tribunal had effectively decided that "in the exercise of its statutory powers, it has a discretion to depart from tikanga. I disagree".

"In my view, this is one of the situations where as a matter of interpretation of the statute, the Tribunal does not have a discretion to make decisions that are inconsistent with tikanga. Neither does it have a discretion to direct remedies that are inconsistent with the principles of the Treaty."

While experts had argued that Ngāti Kahungunu had acquired mana whenua status by way of intermarriage, and Wairarapa Moana had through "whāngai whenua" (the practice of whāngai of children leading to care for that land), the judge noted the Tribunal did not use these as reasons for deciding to return the lands to them. 

The judge noted the Tribunal instead exercised its discretion to return the land "notwithstanding the tikanga relating to the land".

He was not disagreeing with the Tribunal on what tikanga was - "the Tribunal has obvious expertise in those matters" - but was applying the tikanga principles the Tribunal itself had identified and assessing those within an interpretation of the law.

"To decide that ancestral lands in the rohe of one iwi should be transferred to another iwi who has no such connection as part of a Treaty remedy is not consistent with the principles of the Treaty.

"Raukawa and Ngāti Tūwharetoa have themselves reached Treaty settlements that prevent those iwi obtaining legal title to those lands. But this does not eliminate their ancestral association.

"They remain part of the lands over which Raukawa and Ngāti Tūwharetoa have mana whenua. The fires may not burn as brightly, but they still burn."

He concluded: "The Tribunal did not have a discretion to make resumption orders that are inconsistent with tikanga, or inconsistent with the principles of the Treaty. Its preliminary determination is therefore unlawful."

The High Court directed the Tribunal "reconsider the claims made to it in light of this judgment".