High Court upholds Waitangi Tribunal recommendations on land and compensation for Māori

Friday, 17 February 2023

The Waitangi Tribunal recommended the Crown return more than 7500ha of forestry land to Māori. (File photo)

The Waitangi Tribunal did not overstep its legal jurisdiction when recommending the Crown return Mangatū forest land and financially compensate Māori, the High Court has found.

Following more than two decades of hearings and reports relating to claims the Crown breached Te Tiriti o Waitangi across the Tūranga (Poverty Bay) district, the Waitangi Tribunal released its recommendations report, titled the Mangatū Remedies Report, in 2021.

It determined the Crown should return Crown forest land that lies in the north of the Tūranga district to Māori and pay 100% monetary compensation.

The 7676.8ha was made up of some whenua (land) that was purchased from Māori in 1961 and some from Pākehā owners who had purchased from Māori prior.

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Justice Christine Grice delivered her judgment of the judicial review on Friday. (File photo)

It was initially purchased for erosion reasons, but was later turned into forestry.

The Crown challenged the tribunal’s findings, calling for a judicial review at the High Court.

It said the tribunal’s recommendation to return all the land that “relates to” a wide range of claims based on Treaty breaches relating to events from the 1850s onwards was contrary to the statutory text and purpose.

These claims included the Crown’s attack on a Waerenga a Hika Pā in 1865, the imprisonment and delay of trial of Māori on Wharekauri (Chatham Islands), systemic pressure on Māori to sell land, and failing to recognised flaws in the Native Land Court’s decisions for Mangatū.

“[The Crown says] the Tribunal was in error as it has ‘essentially funnelled the entire history of Māori-Crown interactions in the district through the ‘relates to’ threshold’,” the report said.

The Crown argued it had given its best endeavours to settle the claim, which would allow the extension of a four-year interest holiday. The difference in compensation without a potential interest holiday would be massive at $160 million.

The Crown argued the “Tribunal has acted outside its judicatory jurisdiction and materially erred in law … given the serious nature of these errors and the significant financial (and other) implications for all parties the decisions cannot stand”.

Claimants Te Aitanga a Māhaki, Mangatū Incorporation, and Ngā Uri o Tamanui Trust, and another group Te Rangiwhakataetaea – Wi Haronga – Ngāti Matepu made submissions in support of the Tribunal’s findings, with claimant and Te Whānau a Kai counterclaiming that the Tribunal failed to recognise its claims and recommend adequate redress.

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However, in a report released on Friday, the High Court’s Justice Christine Grice CNZM found it was satisfied the tribunal acted lawfully in its recommendations for the return of land and did not misconstrue its powers in its recommendations.

Justice Grice did however uphold one section of the Crown arguments.

The review found the Tribunal was wrong when calculating Crown compensation, by not extending a four-year effective interest holiday on the asset value – something it could do provided the Crown had followed its best endeavours to settle the claim.

This added $160m to the payout. Now the tribunal has been directed to reconsider its recommended compensation.

The counterclaim was from Te Whānau a Kai was dismissed by the court.