The Waitangi Tribunal decides not to bind the Crown

The Waitangi Tribunal can, in limited circumstances, make orders about remedies for Treaty breaches which bind the Crown. Until a week or so ago, when the Waitangi Tribunal released its report on the remedies sought by Ngati Kahu in the far north (the report is available online), the only other Tribunal proceeding in which binding recommendations for the resumption of former Crown land was sought related to the Turangi township. By contrast, Ngati Kahu’s claim was a good deal broader, posing a real challenge for the Tribunal, noting as it did that the governing legislation provides “considerable discretion but very little guidance”.

All parties to the Tribunal’s inquiry (the Crown included) agreed that the Crown’s actions in the far north, soon after the signing of the Treaty, had lasting effects on Ngati Kahu, who remain impoverished; warranting a significant package of redress. In a series of transactions up to 1865, Ngati Kahu – one of five iwi in the region – were dispossessed of 70% of their ancestral lands. The transactions were either pre-Treaty purchases which were found to have wrongly been confirmed by the Crown or direct Crown purchases, conducted solely in the interests of establishing a colony.

The claims of the five iwi were found to have been well established by the Tribunal in its Muriwhenua Land Report in 1997. A collective body, known as the Te Hiku Forum had been created by the five iwi for the purpose of the Crown and the iwi arriving at joint agreements on redress. When Ngati Kahu withdrew from the Forum, it sought to retain the benefits of the collective negotiations while, the Tribunal found, attempting to obtain further benefits outside of that process. The benefits sought would have seen the Tribunal exercise its power to make binding recommendations that the Crown resume land currently or formerly owned by state-owned enterprises and then return it to Ngati Kahu. The properties sought by the iwi had been transferred from state-owned enterprises to Crown entities, a territorial authority and to private owners.

While agreeing that significant redress was necessary, the Tribunal did not go as far as to make the binding orders sought. To do so, it found, would have seen the Crown, in remedying the grievance of one group, creating a fresh grievance for another; such was the disproportionate settlement package that would have resulted. As the Tribunal said, “settlements are between Treaty partners, but they cannot be safely achieved in isolation from others”. It would, as well, have seen a settlement package which was “well in excess of settlements already achieved up and down the country”.

In exercising its power to recommend only, the Tribunal has proposed a total settlement package for Ngati Kahu which includes commercial redress of $42.5 million, the return of 21 cultural redress properties various recommendations about the governance of Ninety Mile Beach and conservation lands.

The pathways to settlement between the Crown and iwi are many and varied. Some proceed directly to a negotiated outcome while others, often involving multiple conflicting interests, can produce substantial litigation. As a recent example, achieving redress in Wellington’s Port Nicholson Block has involved a substantive Tribunal inquiry, settlements with two iwi and then further Tribunal and High Court proceedings in which one iwi sought to challenge redress to be received by the other as being at odds with its own settlement (Port Nicholson Block Settlement Trust v Attorney-General [2012] NZHC 3181). Now in the far north, the strategy chosen to maximise the benefits of settlement was has been to test the application of the Tribunal’s binding powers. The approach, while unsuccessful in one sense, has without doubt focused attention on the nature of the settlement package to be negotiated between the Crown and the iwi of the Muriwhenua region.

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