Attorney-General v Waitangi Tribunal
[2023] NZHC 132
•17 February 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-000720
[2023] NZHC 132
BETWEEN ATTORNEY GENERAL
Applicant
AND
WAITANGI TRIBUNAL
First Respondent
AND
ESTATE OF ERIC JOHN TUPAI RURU
Second Respondent
AND
TANYA ROGERS AND DAVID BROWN
Third Respondent
AND
OWEN LLOYD
Fourth Respondent
AND
DAVID THOMAS HAWEA
Fifth Respondent
AND
ALAN PAREKURA TOROHINA HARONGA
Sixth Respondent
AND
ANTHONY TAPP
Seventh Respondent
Hearing: 20 – 22 June 2022 and 3 February 2023 Appearances:
C D Tyson, C R W Linkhorn and H P Graham for the Applicant
B R Arapere and W Gucake (both hearings) for the First Respondent P J Radich KC, K S Feint KC and T Haradasa (both hearings) and R
Drummond (on 3 February 2023) for the Second and Sixth Respondents B R Lyall for the Third Respondent
T H Bennion for the Fourth Respondent
D C F Naden and C B Hirschfield (for June 2022 hearings) and no appearance by leave on 3 February 2023 for the Fifth Respondent
J P Kahukiwa by VMR (for June 2022 hearing) and no appearance by leave on 3 February 2023 for the Seventh Respondent
Judgment:
17 February 2023
ATTORNEY GENERAL v WAITANGI TRIBUNAL [2023] NZHC 132 [17 February 2023]
JUDGMENT OF GRICE J (JUDICIAL REVIEW)
Contents
Introduction[1]
Background[10]
Grounds for judicial review[18]
Principles of judicial review[25]
The statutory framework[28]
The Remedies Report 2021[40]
Structure of the report[47]
The principles of the Treaty[53]
Do the well-founded claims “relate to” the CFL land?[62]
Should the Mangatū CFL land be returned to Māori?[74]
Who is to receive the Tribunal’s s 8HB recommendation?[79]
Compensation[96]
Terms and conditions[99]
The Supreme Court decision in Wairarapa Moana[101]
Tikanga and the “relevant prejudice issue”[107]
Earlier Supreme Court guidance on the Crown forest land provisions[110] First ground of review — error of law — Tribunal misconstrued and exceeded its jurisdiction and powers under s 8HB of the TOWA[117]
Analysis[134]
Second ground of review — declining to extend the four-year CPI-only period for the
compensation amount[178]
The Supreme Court’s guidance on the Crown’s interest liability issue[189]
What the Tribunal did in this case[202]
Analysis[208]
Third ground of review — error of law[233]
Analysis[259]
Fourth ground of review — error of law — Tribunal erred in its assessment of terms and
conditions under s 8HB of the TOWA for return of licensed land[270]
Terms and conditions recommended by the Tribunal[273]
Recommendation that lands be returned to Māori Collective Trust[275]
Analysis[283]
Crown warranties and indemnities[293]
Analysis[297]
Clause restricting ability of parties to settle in the 90-day period[303]
Analysis[306]
Transfer of title within 12 months[308]
Notice to Crown Forestry Rental Trust (CFRT) and Forest Emission Unit Trust (FEUT)[314]
The counterclaim by Te Whānau a Kai[320]
Historical claims findings in the Principal Report[332]
Failure to take into account the evidence of Te Whānau a Kai[341]
Effect of the Wairarapa Moana decision[343]Analysis[345]
Failure to take into account mana whenua[360]Conclusion[363]
Costs[369]
Introduction
[1] In its Mangatū Remedies Report 2021 (the Remedies Report 2021), Te Rōpu Whakamana i te Tiriti o Waitangi | the Waitangi Tribunal (the Tribunal) recommended the transfer or “resumption” to three Māori claimant groups of 7,676.8 hectares of the Mangatū Crown Forest licensed (CFL) lands.1 The Tribunal also recommended the payment of associated compensation.2 These recommendations were the result of a series of inquiries in relation to the Tūranga district by the Tribunal beginning in 2000.
[2] The Crown seeks judicial review of the Tribunal’s recommendations, which may, subject to further negotiations between the Crown and the claimants, become final adjudicatory determinations. The Crown says the Tribunal has acted outside its adjudicatory jurisdiction and materially erred in law. It says given the serious nature of these errors and the significant financial (and other) implications for all parties the decisions cannot stand.
[3]The Tribunal is the first respondent and abides the decision of the Court.
[4] The second, third, fourth and sixth respondents represent two of the Māori groups of claimants for resumption and oppose the Crown’s application.3 They had asked the Tribunal to exercise its statutory power to make a binding recommendation requiring the Crown to return the CFL land to Māori ownership under s 8HB of the Treaty of Waitangi Act 1975 (the TOWA).4 The Tribunal did so.
1 Te Rōpu Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Mangatū Remedies Report 2021 (Wai 814, 2021) [Remedies Report 2021]. The Mangatū CFL land at issue in this case is located in the north of the Tribunal’s Tūranganui-a-Kiwa inquiry district. The total area of the CFL land is 12,474.5802 ha. The land subject to these proceedings is 7,676.8 ha of the total area.
2 “Resumption” is the term used to describe the Waitangi Tribunal’s power to, effectively, direct the return of certain categories of land subject to Treaty of Waitangi claims. Those categories are current or former state-owned enterprise land, Crown forest land and land belonging to tertiary education institutions: Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142 [Wairarapa Moana] at n 1.
3 The groupings and names adopted by the applicants have changed from time to time through the course of the Tribunal inquiries but that is not material for present purposes: Remedies Report 2021, above n 1, at [1]–[4].
4 The complex procedural history is set out at [1]–[8] of the Remedies Report 2021, above n 1.
[5] The second and sixth respondents represent the interests of Te Aitanga a Māhaki and the Mangatū Incorporation respectively. They support the findings of the Tribunal.
[6] The third and fourth respondents represent three claimant groups who established a common trust called Ngā Uri o Tamanui Trust (NUOT) to receive and manage the settlement offers.5 These respondents support the findings of and the remedies recommended by the Tribunal in relation to the historical claims and compensation but abide the decision of the Court in relation to the terms and conditions imposed by the Tribunal.
[7] The fifth respondent, Te Whānau a Kai, is a counterclaim applicant. It seeks judicial review of the Tribunal’s recommendations, alleging that the Tribunal failed to properly take into account the evidence and did not properly recognise the rights and interests of Te Whānau a Kai. It says the Tribunal acted unreasonably and failed to give reasons for providing significantly less redress allocation to it than to the other claimant entities.6 Te Whānau a Kai says that the Tribunal erred by failing to properly ascertain customary interests in the Mangatū CFL land in the manner required. Te Whānau a Kai says in particular that the Tribunal failed to deal with its mana whenua concerns. It says the Tribunal in the Remedies Inquiry relied on mana whenua findings it had made in relation to historical Treaty claims concerning the district in its 2004 report Tūranga Tangata Tūranga Whenua (the Principal Report) which were inadequate.7
[8] The seventh respondent represents an interested party referred to by the Tribunal as Ngāti Matepu.8 The seventh respondent did not take an active part in argument but supported the second and sixth respondents’ submissions.
5 The Remedies Report 2021 referred to those claimants as Ngāriki/Ngā Ariki Kaipūtahi. However, counsel in his submissions referred to the claimants as Ngā Uri o Tamanui (NUOT).
6 Te Whānau a Kai was allocated 14 per cent, while the third and fourth respondents would receive 18 per cent, and the second and sixth respondents would receive 68 per cent.
7 Te Rōpu Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims (Wai 814, 2004) [Principal Report].
8 Remedies Report 2021, above n 1, at [31].
[9] Since the hearing of this matter, the Supreme Court has delivered its decision in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd (Wairarapa Moana), which gave guidance on the approach to be taken in applications for resumption and compensation.9 For the purpose of making submissions on the effect of that decision on the issues under consideration the parties were invited to make further submissions by written memoranda and at a resumed hearing on 3 February 2023.
Background
[10] The Crown purchased the land at issue in the 1950s and 1960s for the purposes of erosion control. Part of the land described as part of Mangatū No 1 block was acquired from Māori in 1961. It was purchased from the proprietors of the Mangatū Incorporation. The greater part of the land was purchased from non-Māori owners, but that land had earlier been sold privately by the Māori owners of parts of the Mangatū No 2 block.
[11] The Tribunal’s Principal Report and the first Mangatū Remedies Report in 2014 (the Remedies Report 2014) were silent on whether a fair price had been paid to the Māori owners at the time but identified breaches of te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty) by the Crown in the purchase process.10
[12] Some of the claims in the inquiry involved the Mangatū lands directly, including the Ngāriki/Ngā Ariki Kaipūtahi claim concerning the Native Land Court’s determination of title for Mangatū 1 in 1881 and the Crown’s acquisition of 8,522 acres (3,448.7 ha) of land from Mangatū Incorporation for erosion purposes in 1961, when it had failed to disclose its intention to also use the land for commercial forestry.11
[13] In the 2004 Principal Report the Tribunal made factual findings on a wide range of historical issues arising from Crown conduct in the Tūranga district. The
9 Wairarapa Moana, above n 2.
10 Principal Report, above n 7, at 733; and Te Rōpu Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Mangatū Remedies Report (Wai 814, 2014) [Remedies Report 2014] at 52, concerning the acquisition and afforestation of the Mangatū No 1 land. The Remedies Report 2014 was subsequently set aside following a successful judicial review application.
11 Remedies Report 2021, above n 1, at [12].
Remedies Report 2021 summarised the Tribunal’s earlier findings in the Principal Report and referred to but did not repeat the full account of the Crown’s Treaty breaches in the district. The Tribunal had found that “the Crown’s Treaty breaches in the district, and their far-reaching consequences, formed a single story of extreme prejudice suffered by all Tūranga Maōri.”12 The Crown’s conduct gave rise to some of the most serious Treaty breaches in New Zealand.13
[14] The Tribunal in the Principal Report did not make specific recommendations to remedy the prejudice suffered as a result of all the Crown’s breaches, including those related to the Mangatū CFL lands. The recommendation was that the Crown and claimants enter into settlement negotiations for that purpose.14 This ultimately led to litigation in the High Court, Court of Appeal and Supreme Court. As a result the Tribunal needed to hold a further series of hearings, commencing in 2017 and culminating in the present Remedies Report 2021.15
[15] The Tribunal adopted an “iterative” process to resolve some of the technical and logistical issues likely to arise if it made binding recommendations for the return of CFL land to Māori ownership.16 One of the key issues on which the claimants were asked to engage through this iterative process was the establishment of suitable entities as recipients for any binding Tribunal recommendations requiring return of CFL land and payment of compensation.17 The Tribunal had hoped that the iterative process, including mediation, would lead to agreement among the claimants for the return of
12 At [10], citing the Principal Report, above n 7, at 38.
13 At [10], citing the Principal Report, above n 7, at 38.
14 Principal Report, above n 7, at 741–742.
15 Haronga v Waitangi Tribunal HC Wellington CIV 2009–485–2277, 23 December 2009 [Haronga (HC) (2009)]; Haronga v Waitangi Tribunal [2010] NZCA 201 [Haronga (CA) (2010)]; Haronga v Waitangi Tribunal [2011] NZSC 53, [2012] 2 NZLR 53 (SC) [Haronga (SC)]; Haronga v Waitangi Tribunal [2015] NZHC 1115 [Haronga (HC) (2015)]; and Attorney-General v Haronga [2016] NZCA 626, [2017] 2 NZLR 394 [Haronga (CA) (2016)], detailed in the Remedies Report 2021, above n 1, at [16]–[28].
16 The Remedies Report 2021, above n 1, at 4 defined the “iterative process” as:
The Tribunal-led process through which the claimants in this Inquiry prepared themselves to receive any interim Tribunal recommendation under section 8HB of the TOWA, and ratified legal entities to receive such a recommendation. It took place between July 2019 and August 2021, and involved a number of judicial conferences, mediation between parties, and claimant groups working to establish and ratify governance entities.
17 Remedies Report 2021, above n 1, at [1.25].
the land to them as a community rather than allocations of the land to separate groups. However agreement was not reached.
[16] Once the claimants had completed the required ratification processes to establish the three entities to represent the interests of the various claimants, the Tribunal issued the Remedies Report 2021. This determined the groups of Māori (represented by the three entities) to whom the land should be returned. The return was to be to a collective trust held in beneficial interests proportionate to the determined share of each group.
[17] The Tribunal’s recommendations about the CFL land, made under ss 6(3) and 8HB of the TOWA, would become final after 90 days if the Crown and parties did not otherwise agree. The 90-day process enables the parties to the inquiry to enter negotiations for the settlement of the claim with the other parties and the Crown. They must within that 90 days inform the Tribunal whether the party accepts or has implemented the interim recommendations or made an offer as a result of negotiations, and the result of that offer.18 Currently that period is suspended pending the resolution of these proceedings.
Grounds for judicial review
[18] The Crown brings its application for judicial review claiming that the Tribunal erred in its proposal that all of the CFL land be returned and 100 per cent compensation be paid to Māori as generalised compensation for a wide range of claims based on Treaty breaches relating to events from the 1850s onwards. It says those claims did not “relate to” the CFL lands as required by s 8HB(1) and as such did not engage the resumption jurisdiction.19 It 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 Crown says the Tribunal has used the CFL land and the maximum available compensation as a response to that history, but that approach is contrary to the statutory text and purpose.
18 Treaty of Waitangi Act 1975, s 8HC.
19 The Tribunal’s “relates to” finding is at [4.23]–[4.62] of the Remedies Report 2021, above n 1.
[19] The Crown says that the special mechanism of s 8HB was designed to protect specific claims to specific land. It submits that as it has been applied by the Tribunal, s 8HB would become a general remedy for a wide range of claims and benefits from the district inquiry findings.
[20] The Crown also says that the Tribunal’s decision to award compensation in favour of the relevant entities based on the maximum amount of return available under the statutory provisions was wrong in law. It says this was based on an incorrect construction and application of the statutory provisions.
[21] The Tribunal had found, for the purposes of calculating the amount of statutory compensation to be paid under the Crown Forest Assets Act 1989, that except for two short periods to account for nationwide COVID-19 lockouts, the Crown was not “prevented, by reasons beyond its control, from carrying out any relevant obligation” in relation to the Tribunal inquiries, and therefore declined to extend the “real value” period beyond the statutory four-year period from the date of sale or the date that the claim was made (whichever was the later). The Crown says that in declining to extend the “real value” period and recommending that the Crown pay the maximum return on the proceeds it had received for sale of the timber, the Tribunal erred in its calculation of compensation, which had the effect of increasing the maximum statutory compensation amount by $160 million over the amount which would have preserved the real value of the net proceeds of sale through to the point of determining remedies for the claims.
[22] The Crown also says the Tribunal has stepped outside the purpose of the terms and conditions that it is entitled to impose on the recommended transfer of land and compensation to Māori. The Crown submits the recommended proposed terms and conditions constitute an additional remedy to the claimants.
[23] The Crown says the Tribunal has avoided its statutory function of determining finally to whom the land (or parts thereof) should be returned. In particular it says that in recommending that a collective trust be the recipient of the resumption orders, the Tribunal has failed to identify the final recipients to whom the interests in land will be transferred (and any relevant compensation paid). The Crown submits this approach
leaves this key decision open to further processes and as such the position of the parties is left uncertain. The Crown says this is to some extent a product of the errors of law made by the Tribunal in its failure to identify the specific claims and prejudice concerning the forest lands which would justify the return of part or all of that land to particular claimants for those claims. It points to practical difficulties and uncertainties which result from a failure to direct the transfer of the land to the final proposed recipients and says this is therefore not a definitive resolution of forest claims as is contemplated by the statutory scheme.
[24] In summary, the Crown does not say the respondents’ claims are not “well-founded” based on district-wide Treaty breaches, but rather that not all of the claims of the groups are sufficiently proximate to the CFL land. Therefore, the Crown says, it cannot be said that each “relates in whole or in part to… land or an interest in [the] land”, in the terms of s 8A(2) of the TOWA. The Crown also says that only part of the land can be said to be susceptible to be returned to Māori ownership, because only part of the land was acquired from Māori in 1961. The Crown says the balance was acquired from non-Māori to whom Māori had sold earlier and there has been insufficient identification of Māori or the group of Māori to whom that land is to be returned.
Principles of judicial review
[25] This application is based on errors the Crown alleges that the Tribunal has made in the interpretation and application of the statutory scheme for resumption. The Court’s task in judicial review was recently reiterated by Cooke J in Mercury NZ Ltd v Waitangi Tribunal (Mercury) when considering the resumption provisions, as follows:20
… The function of the Court in judicial review is to consider whether decisions are made lawfully. In this context this means the Court considers whether the Tribunal correctly interpreted its statutory powers, that it took into account the considerations Parliament intended and ignored those that are irrelevant. The discretion given to a relevant body may include matters of judgment and evaluation on the proper interpretation of the provisions. Where that is so it is not the function of the Court to question the views properly formed by the
20 Mercury NZ Limited v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 [Mercury (HC)] at [67].
decision maker. Its function is only to review whether the decisions have been lawfully made …
[26] It is necessary therefore to examine in some detail the Tribunal’s findings and interim recommendations, as well as the basis for those. Then follows a consideration of whether the Tribunal’s approach is in accordance with the statutory provisions, and in particular how they should be applied in accordance with Supreme Court’s guidance in Wairarapa Moana and other relevant case law.21
[27] I first, however, set out the statutory framework under which the Tribunal operates, including the amendments which introduced the resumption jurisdiction.
The statutory framework
[28] The functions of the Tribunal and the jurisdiction to enquire into historical claims and determine whether they are well-founded is set out in the TOWA as follows:
5Functions of Tribunal
(1)The functions of the Tribunal shall be—
(a)to inquire into and make recommendations upon, in accordance with this Act, any claim submitted to the Tribunal under section 6:
…
(2)In exercising any of its functions under this section the Tribunal shall have regard to the 2 texts of the Treaty set out in Schedule 1 and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between them.
6Jurisdiction of Tribunal to consider claims
(1)Where any Maori claims that he or she, or any group of Maoris of which he or she is a member, is or is likely to be prejudicially affected—
…
(b)by any regulations, order, proclamation, notice, or other statutory instrument made, issued, or given at any time on or after 6 February 1840 under any ordinance or Act referred to in paragraph (a); or
21 Wairarapa Moana, above n 2.
(c)by any policy or practice (whether or not still in force) adopted by or on behalf of the Crown, or by any policy or practice proposed to be adopted by or on behalf of the Crown; or
(d)by any act done or omitted at any time on or after 6 February 1840, or proposed to be done or omitted, by or on behalf of the Crown,—
and that … the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission, was or is inconsistent with the principles of the Treaty, he or she may submit that claim to the Tribunal under this section.
…
(3)If the Tribunal finds that any claim submitted to it under this section is well-founded it may, if it thinks fit having regard to all the circumstances of the case, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.
…
[29] The Supreme Court has recently commented that the Tribunal’s jurisdiction in relation to historical Treaty claims is “unique in New Zealand’s legal and constitutional framework.”22
[30] The Tribunal takes a district-by-district approach, that is “it consolidates the multiple claims of iwi, hapū, whānau and individuals in a particular district into a single historical inquiry”.23 The Supreme Court noted that the historical claims that come before the Tribunal are complex.24 They relate to whole districts and cover a century-and-a-half of interaction between Māori and the Crown.25 The Tribunal must engage with contemporary claimant communities, often at different stages of readiness and recovery.26 These realities, the Supreme Court said, “call for deep expertise and a willingness to be flexible.”27
[31] The Tribunal receives evidence and submissions in a staged process over a period of time. It then publishes its report about the history of the engagement between
22 At [16].
23 At [18].
24 At [17].
25 At [17].
26 At [17].
27 At [17].
iwi and hapū and the Crown and settlers in the district.28 The process is one of “seeking reconciliation through evidential inquiry supported by expert membership and inquisitorial procedures”.29 The Supreme Court noted this explains why the Tribunal’s remedial powers are generally recommendatory.30
[32] The partial exceptions to the recommendatory jurisdiction are in relation to Crown forest, tertiary, education and state-owned enterprise land.31 In relation to those assets, as a result of a direction by the Court of Appeal, an agreement was reached between the Crown and Māori leading to amendments to the powers of the Tribunal to enable it to compel the Crown (by binding recommendation) to resume ownership of such land to Māori.32 This is the Tribunal’s “resumption power”, which the Supreme Court has described as “adjudicatory”.33 The background to the extension of the Waitangi Tribunal’s “resumption” jurisdiction to CFL lands has been considered in detail in a number of earlier judgments, most recently in Wairarapa Moana.34
[33] The resumption jurisdiction was effected by way of amendments to the TOWA and in the provisions of the Crown Forest Assets Act. Sections 8HB(2)–(3) of the TOWA inserted the “adjudicatory” jurisdiction and provide the statutory prerequisites and a process allowing for further negotiations before the interim recommendations of the Tribunal become final under s 8HC, as follows:
8HB Recommendations of Tribunal in respect of Crown forest land
(1)Subject to section 8HC, where a claim submitted to the Tribunal under section 6 relates to licensed land the Tribunal may,—
(a)if it finds—
(i)that the claim is well-founded; and
(ii)that the action to be taken under section 6(3) to compensate for or remove the prejudice caused by the
28 At [18].
29 At [19].
30 At [19].
31 At [20].
32 At [20]–[22], referring to New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) [the Lands case] at 666 per Cooke P.
33 At [22], citing Haronga (SC), above n 15, at [88] per Elias CJ, Blanchard, Tipping and McGrath JJ.
34 At [20]–[23]; and see Haronga (SC), above n 15; Haronga (CA) (2016), above n 15; and Mercury
(HC), above n 20.
ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission that was inconsistent with the principles of the Treaty of Waitangi, should include the return to Māori ownership of the whole or part of that land,—
include in its recommendation under section 6(3) a recommendation that the land or that part of that land be returned to Māori ownership (which recommendation shall be on such terms and conditions as the Tribunal considers appropriate and shall identify the Māori or group of Māori to whom that land or that part of that land is to be returned) …
(2)In deciding whether to recommend the return to Māori ownership of any licensed land, the Tribunal shall not have regard to any changes that have taken place in—
(a)the condition of the land and any improvements to it; or
(b)its ownership or possession or any other interests in it—
that have occurred after or by virtue of the granting of any Crown forestry licence in respect of that land.
(3)Nothing in subsection (1) prevents the Tribunal making in respect of any claim that relates in whole or in part to licensed land any other recommendation under subsection (3) or subsection (4) of section 6; except that in making any other recommendation the Tribunal may take into account payments made, or to be made, by the Crown by way of compensation in relation to the land pursuant to section 36 and Schedule 1 of the Crown Forest Assets Act 1989.
…
[34] Section 8HC, relating to interim recommendations in respect of Crown forest land, provides as follows:
8HC Interim recommendations in respect of Crown forest land
(1)Where the recommendations made by the Tribunal include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), all of those recommendations shall be in the first instance interim recommendations.
(2)The Tribunal shall cause copies of its interim findings and interim recommendations to be served on the parties to the inquiry.
(3)Subject to subsection (5), the Tribunal shall not, without the written consent of the parties, confirm any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), until at least 90 days after the date of the making of the interim recommendations.
(4)Where any party to the inquiry is served with a copy of any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), that party—
(a)may, within 90 days after the date of the making of the interim recommendations, offer to enter into negotiations with the other party for the settlement of the claim; and
(b)shall, within 90 days after the date of the making of the interim recommendations, inform the Tribunal —
(i)whether the party accepts or has implemented the interim recommendations; and
(ii)if the party has made an offer under paragraph (a), the result of that offer.
(5)If, before the confirmation of any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), the claimant and the Minister of Māori Affairs settle the claim, the Tribunal shall, as the case may require, cancel or modify the interim recommendations and may make, if necessary, a final recommendation under section 8HB(1)(a) or section 8HB(1)(b).
(6)If subsection (5) does not apply in relation to any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), upon the expiration of the 90th day after the date of the making of the interim recommendations, the interim recommendations shall become final recommendations.
(7)Notwithstanding anything in subsections (1) to (6), if any interim recommendations contain a clerical mistake or an error arising from any accidental slip or omission, whether the mistake, error, slip, or omission was made by an officer of the Tribunal or not, or if any interim recommendations are so drawn up as not to express what was actually decided and intended, the interim recommendations may be corrected by the Tribunal , either of its own motion or on the application of any party.
…
[35] The Tribunal may also award additional relief or compensation. The process for the calculation of compensation following a recommendation for the return to Māori ownership of any licensed land is set out in s 36 of the Crown Forest Assets Act, with the options for compensation set out in sch 1 to that Act. Section 36 provides:35
36 Return of Crown forest land to Māori ownership and payment of compensation
35 Section 36(3) was amended in November 2022 but the amendment is not relevant to the issues in this proceeding.
(1)Where any interim recommendation of the Waitangi Tribunal under the Treaty of Waitangi Act 1975 becomes a final recommendation under that Act and is a recommendation for the return to Māori ownership of any licensed land, the Crown shall—
(a)return the land to Māori ownership in accordance with the recommendation subject to the relevant Crown forestry licence; and
(b)pay compensation in accordance with Schedule 1.
(2)Except as otherwise provided in this Act or any relevant Crown forestry licence, the return of any land to Māori ownership shall not affect any Crown forestry licence or the rights of the licensee or any other person under the licence.
(3)Any money required to be paid as compensation pursuant to this section may be paid without further appropriation than this section.
[36]Schedule 1 provides:
Compensation payable to Māori
1Compensation payable under section 36 shall be payable to the Māori to whom ownership of the land concerned is transferred.
2That compensation shall comprise—
(a)5% of the specified amount calculated in accordance with clause 3 as compensation for the fact that the land is being returned subject to encumbrances; and
(b)as further compensation, the remaining portion of the specified amount calculated in accordance with clause 3 or such lesser amount as the Tribunal may recommend.
3For the purposes of clause 2, the specified amount shall be whichever of the following is nominated by the person to whom the compensation is payable—
(a)the market value of the trees, being trees which the licensee is entitled to harvest under the Crown forestry licence, on the land to be returned assessed as at the time that the recommendation made by the Tribunal for the return of the land to Māori ownership becomes final under the Treaty of Waitangi Act 1975. The value is to be determined on the basis of a willing buyer and willing seller and on the projected harvesting pattern that a prudent forest owner would be expected to follow; or
(b)the market stumpage, determined in accordance with accepted forestry business practice, of wood harvested under the Crown forestry licence on the land to be returned to Māori ownership from the date that the recommendation of the
Tribunal for the return of the land to Māori ownership becomes final under the Treaty of Waitangi Act 1975. If notice of termination of the Crown forestry licence as provided for under section 17(4) is not given at, or prior to, the date that the recommendation becomes final, the specified amount shall be limited to the value of wood harvested as if notice of termination had been given on that date; or
(c)the net proceeds received by the Crown from the transfer of the Crown forestry assets to which the land to be returned relates, plus a return on those proceeds for the period between transfer and the return of the land to Māori ownership.
…
5For the purposes of clause 3(c), the return on the proceeds received by the Crown shall be—
(a)such amount as is necessary to maintain the real value of those proceeds during either—
(i)in the case where the claim was filed before the transfer occurred, a period of not more than 4 years from the date of transfer of the Crown forestry assets; or
(ii)in the case where the claim was filed after the date of transfer of the Crown forestry assets, the period from the date of transfer of the Crown forestry assets to the date of expiration of 4 years after the claim was filed; and
(b)in respect of any period after the period described in subparagraph (i) or subparagraph (ii) of paragraph (a) (as extended under clause 6), equivalent to the return on 1 year New Zealand Government stock measured on a rolling annual basis, plus an additional margin of 4% per annum.
For the purposes of this clause, a claim shall be deemed to be filed on such date as is certified by the Registrar of the Tribunal.
6The period of 4 years referred to in clause 5 may be extended by the Tribunal where the Tribunal is satisfied—
(a)that a claimant with adequate resources has willfully delayed proceedings in respect of a claim; or
(b)the Crown is prevented, by reasons beyond its control, from carrying out any relevant obligation under the agreement made on 20 July 1989 between the Crown, the New Zealand Māori Council, and the Federation of Māori Authorities Incorporated.
[37] The Supreme Court noted that in addition to the land itself (which comes subject to the existing Crown forestry licence), the compensation provision allowed for additional relief to be made available to the recipient of the land in the form of the accumulated licence fees (rentals) for the licensed land, held by the Crown Forestry Rental Trust, and the right to any future rental payments.36 It noted that under cl 2 a successful applicant for resumption would be entitled as of right to five per cent of the sum elected under cl 3, and the Tribunal may order that up to 100 per cent be paid as “further compensation”.37
[38] In this case the Tribunal concluded that compensation should be paid to the three claimant groups to whom it recommended the Mangatū CFL land should be returned. The compensation was to comprise the full amount of the specified amount under cl 2 of sch 1. The specified amount was to be calculated under cl 2(c), being the net proceeds received by the Crown from the transfer of the relevant Crown forestry assets plus a return on those proceeds. It determined that the return on the proceeds should be calculated from the expiration of the four-year grace period referred to in cl 5(a) at the return specified in cl 5(b).
[39] In order to reach a conclusion that the four-year grace period should not be extended, the Tribunal had to be satisfied in terms of cl 6(b) that the Crown had not been “prevented, by reasons beyond its control, from carrying out any relevant obligation under the agreement made on 20 July 1989 between the Crown, the New Zealand Māori Council, and the Federation of Māori Authorities Incorporated” (the 1989 Forests Agreement).38 That agreement had set out the agreed provisions subsequently enacted to implement the resumption jurisdiction, including the compensation now set out in sch 1 to the Crown Forest Assets Act.
The Remedies Report 2021
[40] The Tribunal heard the broad historical claims in the Tūranga District Inquiry (the Tūranga Inquiry) between 2001 and 2002 and reported on the claims in the 2004 Principal Report. The Tribunal’s Remedies Inquiry built on material in the earlier
36 Wairarapa Moana, above n 2, at [127].
37 At [118]. The Court noted in that case the Tribunal had “not got that far yet.”
38 Schedule 1 cl 6 of the Crown Forest Assets Act 1989.
report to consider remedies sought by the claimant groups affected by the Crown Treaty breaches.
[41] The Tribunal noted that it had before it four separate and competing applications for return of the CFL land from claimant kin groups “inextricably linked by physical proximity and interwoven whakapapa, yet each with its own independent mana born of distinct whakapapa lines, distinct resource ownership, and strong leadership.”39
[42] The Tribunal said the claimant groups had brought applications that were broadly based and included allegations set out in the comprehensive statements of claim.40 It noted that it could only recommend the return of the CFL land “to compensate for or remove prejudice associated with claims that relate to the land.”41
[43] In addition to its earlier findings in the Principal Report, the Tribunal noted it had the advantage of additional, updated evidence about the impact of the Crown’s actions on the claimant groups over time.42 The additional evidence complemented the findings in the Principal Report and the Tribunal noted that gave it “a fuller understanding of the prejudice – its nature and extent, and who it affected – that must be either removed or compensated for” by its remedies recommendations.43 It noted these were the foundations upon which it based its recommendations.44
[44] The Tribunal noted that the statutory scheme which governed the Tribunal’s power to make binding recommendations (s 8HB of the TOWA and sch 1 of the Crown Forest Assets Act) required it to make a carefully sequenced series of determinations that:45
(a)the claim relates to the CFL land;
39 Remedies Report 2021, above n 1, at [1.30], citing the Principal Report, above n 7, at 38.
40 At [1.35].
41 At [1.35].
42 At [1.36].
43 At [1.36].
44 At [1.36].
45 At [1.6].
(b)the claim is well-founded;
(c)the action to be taken under s 6(3) to compensate for or remove the prejudice caused by the breach should include the return to Māori ownership of the whole or part of the land; and
(d)some or all of the groups to which the land should be returned are identified as appropriate for that purpose.
[45] The Tribunal noted that if it determined that the CFL land should be returned to Māori ownership it must also consider the following questions:46
(a)How should the Tribunal identify the recipient entity or entities to receive the return CFL land and compensation?
(b)What terms and conditions are appropriate pursuant to the statutory scheme?
(c)What considerations inform our rationale for awarding sch 1 compensation?
(d)How much sch 1 compensation should be awarded to the claimants?
[46] The Tribunal structured its report to reflect that sequence and address the necessary determinations to lead it to an overall recommendation.47
Structure of the report
[47] In chapter 2 the Tribunal profiled the claimant groups. In chapter 3 it discussed the statutory scheme and the approach to the claims in detail in the context of the statutory prerequisites that must be met before a recommendation under s 8HB could be made. It summarised the approach adopted by the Courts to the statutory scheme to help clarify its task. The Supreme Court’s decision in Wairarapa Moana was
46 At [3.59].
47 At [1.37].
delivered only after the Tribunal’s report hearing, and consequently the Tribunal did not have the benefit of the guidance set out in that decision.
[48] In chapter 4 the Tribunal considered one of the key threshold questions, namely whether the claimants had well-founded claims that “related to” the CFL land? In assessing this question, the Tribunal drew on how the higher courts had as at that time interpreted the “relates to” requirement, as well as previous Tribunal jurisprudence, the submissions of the parties and the findings of the Principal Report.48
[49] Chapter 5 dealt with the determination of whether the action taken to compensate for or remove the prejudice caused by the Crown’s Treaty breaches should include the return to Māori ownership of the whole or part of that CFL land.49
[50] Chapters 6 and 7 addressed consequential matters flowing from the findings. Chapter 6 looked at the identification of the Māori or groups of Māori to whom the land should be returned. This was the last step in the four-step legal test that the Tribunal was required to apply in order to make binding recommendations. It discussed the “iterative process” through which the claimants had prepared themselves and ratified the three legal entities to receive the interim recommendations. Chapter 7 recorded the findings as to the payment of financial compensation to the claimants along with the return of the CFL land. The Tribunal considered the purpose of the financial compensation under sch 1 and reviewed and assessed the economic evidence adduced to assist the Tribunal in awarding compensation.50
[51] Chapter 8 summarised the key determinations, setting out the s 8HB interim recommendation in full, including the terms and conditions and the compensation to be awarded.51 The Tribunal also provided some general recommendations for appropriate Crown redress for prejudice suffered by the claimants that it considered was not remedied by returning the Mangatū CFL land to Māori ownership. Those
48 At [1.39].
49 At [1.40].
50 At [1.41].
51 At [1.42].
recommendations are non-binding but the Tribunal urged the Crown to respond to them in order to fully resolve these claims.52
[52]I now turn to summarise the full Remedies Report 2021 in greater detail.
The principles of the Treaty
[53] No criticism has been made of the Tribunal’s analysis of the applicable Treaty principles. It noted that the tino rangatiratanga guarantee under article 2 of the Treaty had specific relevance to the Tribunal’s task in this inquiry. This entitlement included the right “to communal title to their lands, forests, fisheries, wahi tapu and all other taonga expressly recognised and protected by the Crown.”53 The guarantee included the rights of “tribal communities to govern themselves as they had for centuries, to determine their own internal political, economic and social rights and objectives, and to act collectively in accordance with those determinants.”54
[54] Under the article 1 right of the Crown to exercise kāwanatanga, Māori autonomy included “the right to retain their own customary law and institutions and the right to determine their own decision makers and land entitlements.”55 Kāwanatanga was neither an exclusive nor ultimate authority. The background to the signing of the Treaty suggested that the Crown’s powers related to controlling and making laws for its own subjects were designed principally to protect Māori from the actions of settlers.56
[55] The Tribunal also noted that an important Crown obligation arising from the Treaty partnership was the active protection of the article 2 guarantees to Māori, including the right to exercise tino rangatiratanga. An important requirement for this partnership was that each party respected the other party’s sphere of authority.57
52 At [1.42].
53 At [3.74].
54 At [3.75].
55 At [3.75].
56 At [3.73].
57 At [3.78].
[56] The Tribunal noted that the Crown had a responsibility to actively protect Māori autonomy and could not unilaterally exercise its kāwanatanga in ways that contravened or undermined article 2 guarantees. On the part of Māori, the partnership required that they act reasonably towards the Crown and participate in any negotiations in good faith.58
[57] Relevant also are the Tribunal’s observations that “the exercise of tino rangatiratanga over taonga within modern New Zealand’s legal framework now requires either ownership or, where this is not possible, significant management rights recognised and provided for in statute.”59 The Treaty also “promised Māori ‘a “fair go” along with Pākehā’; that they would have an equal opportunity to develop their property and profit from the resources they retained.”60
[58] The Tribunal noted it was guided by the principle of equity, which guaranteed that Māori would be treated fairly and equitably. This arose from article 3, which guaranteed Māori the same rights as other New Zealanders. The principle of equity was not just concerned with equal treatment for all citizens but required the Crown to make decisions based on the recognition that the needs of Māori may be different:61
That is, the Crown must provide services equitably (fairly) to Maori; they must meet the needs of hapū and iwi, rather than just New Zealanders in general, if prejudice is to be avoided.
[59] Where redress was required, the Crown had a “clear duty to put matters to right” and that required active measures to restore the balance.62 To satisfy the principle of redress, the Tribunal said, “the Crown must act to restore the mana and status of Māori, and must provide financial or other redress commensurate with the prejudice suffered.”63
[60] The Tribunal accordingly summarised the following Treaty principles which it considered were of particular relevance to the claims in the present inquiry:64
58 At [3.78].
59 At [3.79].
60 At [3.81].
61 At [3.80].
62 At [3.82].
63 At [3.82].
64 At [3.83].
(a)the principle of autonomy;
(b)the principle of partnership;
(c)the principle of active protection;
(d)the principle of equity;
(e)the principle of mutual benefit; and
(f)the principle of redress.
[61] The Tribunal noted that in order to make the decisions required it had regard to the statutory provisions themselves and their history, the courts’ directions, and the principles of the Treaty.65 It then went on to consider in detail whether the well- founded claims related to the CFL land.
Do the well-founded claims “relate to” the CFL land?
[62] In addressing the first threshold issue, that is whether the well-founded claim “relates to” the CFL land, the Tribunal rejected the Crown’s narrow approach to the Tribunal’s resumption jurisdiction as a remedy for claims where the Crown saw the jurisdiction limited to where “the land in question was acquired by the Crown from Māori in breach of Treaty principles.”66 The Tribunal understood the Crown’s position to mean that only claims involving land confiscations or the Crown acquiring the fee simple title over the subject land, in breach of Treaty principles, could be said to relate to the CFL land. The Tribunal agreed with the claimants’ arguments that the Crown’s interpretation would significantly narrow the scope of the Tribunal’s powers to recommend the return of CFL land to Māori ownership. It would have excluded, in the case of CFL land in the Mangatū block, the land acquired through private purchases in the latter part of the 19th century which was subsequently acquired by the Crown.
[63] The Tribunal noted the purpose of returning Crown land such as Mangatū 2 to Māori ownership was “to restore the rights guaranteed under Article 2, and to allow
65 At [3.84].
66 At [4.28]–[4.36]. Emphasis added.
‘mana whenua over that land to be resumed’.”67 The Tribunal found that the Crown’s narrow interpretation regarding the requirement that claims concern “the Crown acquisition of particular lands” was inconsistent with the well-established Treaty rights flowing from the guarantee of tino rangatiratanga.68 These encompassed more than just land ownership and either customary title or the Crown freehold title, but also guaranteed that Māori would exercise autonomy and control over the way their land and other resources were managed and governed in the future.69
[64] The Tribunal noted that Māori land in Tūranga moved out of customary ownership and into Crown-administered titles by means of successive Crown actions and processes that breached article 2.70 These included:71
(a)the 1868 deed of cession;
(b)the work of the Poverty Bay Commission; and
(c)the introduction to Tūranga of the Crown’s native land laws in 1873.
[65] The Tribunal concluded that Māori communities were excluded from decision- making over their lands by these processes.72 It said:73
Individual owners were left vulnerable to the Crown’s purchasing, and also the Crown’s policy governing private purchases. The CFL lands in the Mangatū 2 block illustrate the prejudicial effect the Crown’s native land titling and transfer regime could have on Māori; it was acquired piecemeal by private purchase through 106 purchase deeds over 10 years …
[66] The Tribunal went on to say it did not agree that the claims relating to the CFL land had to be restricted to those claims concerning Crown acquisition of title to the Mangatū CFL lands.74 It was also entitled to consider claims where the Crown had by
67 At [4.31].
68 At [4.31].
69 At [4.32].
70 At [4.34].
71 At [4.34].
72 At [4.34].
73 At [4.34].
74 At [4.36].
one means or another diminished the Māori owners’ tino rangatiratanga or customary interests over the land. It said:75
Importantly, … we do consider there must be clear relationship between the claims, the claimants, and the subject land. In the next section, we consider in greater detail the tikanga of customary ownership for the claimants in this Inquiry.
[67] In relation to the tikanga of customary ownership for the claimants in the Inquiry, in summary the Tribunal determined:76
(a)“Mana whenua” meant the claimant’s customary relationships with the land.77 These relationships could include ownership but were also connected to their history and identity as communities. The co-existence of different kin groups with shared whakapapa was common.78
(b)The customary ownership of Mangatū was better understood as an “overlapping community of kinship groups connected by whakapapa and reciprocal responsibilities.”79
(c)The tikanga of collective responsibility and action remained important today. The gulf between Māori customary understandings of tino rangatiratanga in respect of their land, and the western concept of fee simple ownership remained.80
(d)Customary interests and mana whenua are “reliant on the principles of whanaungatanga and manaakitanga governing the reciprocal obligations between groups, and the responsibilities of rangatira to act for the benefit of the collective.”81
75 At [4.36].
76 At [4.37]–[4.51].
77 At [4.44].
78 At [4.47].
79 At [4.49].
80 At [4.50].
81 At [4.50].
[68] By way of general findings in the Tūranga Inquiry, the Tribunal noted the importance in the Treaty of three important ideals, namely the rule of law, just and fair government, and the protection of Māori autonomy.82 It recorded those observations from the Principal Report “to emphasise the Crown’s determination to impose its authority and destroy Māori autonomy in Tūranga, and the deep roots of its destructive land laws and policies in the district.”83
[69] The Tribunal then narrated in respect of each claimant the relevant Crown actions which led to its determination that the claims were “well-founded” and related to the Mangatū CFL land.84 This was based on the statutory framework, authorities and breaches of Treaty principles as they affected the land, having reviewed the tikanga of customary ownership. It did so under seven areas of Crown Treaty breaches:85
(a)the Crown’s attack on Waerenga a Hika and its treatment of Te Kooti and the Whakarau, 1865–68;
(b)the deed of cession (1868) and the Crown’s retained lands;
(c)the Poverty Bay Commission, 1869–73;
(d)the Crown’s native land regime and the new native title;
(e)the Native Land Court’s Mangatū title determination (Ngāriki/Ngā Ariki Kaipūtahi’s claim);
(f)the Tūranga trusts, 1878–1955; and
(g)the Mangatū afforestation and the Crown’s 1961 acquisition.
82 At [4.65].
83 At [4.65].
84 At [4.63].
85 At [4.63]–[4.197].
[70] The Tribunal then summarised its findings in relation to well-founded claims that relate to the CFL land. The Tribunal concluded that Te Aitanga a Māhaki, Ngāriki/Ngā Ariki Kaipūtahi and Te Whānau a Kai all had well-founded claims on the basis of Treaty breaches which relate to Mangatū CFL land resulting from each of the Crown Treaty breaches detailed above.86
[71] In particular, Te Aitanga a Māhaki, Ngāriki/Ngā Ariki Kaipūtahi and Te Whānau a Kai all had well-founded claims which relate to the Mangatū CFL land in respect of:87
(a)the Crown’s attack on Waerenga a Hika and its treatment of Te Kooti and the Whakarau, 1865–68:
(i)by attacking the pā at Waerenga a Hika, where many, including women and children, had taken refuge and were defending their Treaty-guaranteed tribal autonomy, the Crown acted unlawfully and fundamentally breached the principles of the Treaty;
(ii)the Crown’s deportation of the Whakarau to Wharekauri, along with their families, and their detention there in harsh conditions for over two years, was unlawful, and inhibited the groups’ ability to exercise customary rights and tino rangatiratanga over their land and resources, including at Mangatū;
(iii)in pursuing and harassing Te Kooti and the Whakarau the Crown acted unlawfully and in breach of the Treaty, and the execution without trial of those taken prisoner at Te Kooti’s pā at Ngātapa was illegal and breached the guarantees in article 3 of the Treaty; and
(iv)the effect of the defeat at Waerenga a Hika and the Crown’s treatment of the Whakarau shattered the groups’ autonomy and
86 At [4.203].
87 At [4.203].
their control over their affairs and lands, including those at Mangatū, as Pākehā settlement transformed the area and the Crown consolidated its authority in the district;
(b)the deed of cession (1868) and the Crown-retained lands:
(i)the Crown’s actions, in giving Māori no choice but to agree under duress to the cession of 1.195 million acres (including the Mangatū lands) breached the primary obligation of kāwanatanga and the Treaty principle of active protection; and
(ii)the imposition of the cession, though legally flawed and therefore ineffective in extinguishing the rights of the claimant groups’ people, was a major step in the assertion of the Crown’s authority in Tūranga at the expense of iwi and hapū tikanga and rangatiratanga, and in breach of article 2 of the Treaty;
(c)the Poverty Bay Commission, 1869–73:
(i)the work of the Poverty Bay Commission effectively opened the way for the replacement of customary ownership and interests with land title adjudication by Crown-designed processes, and the Crown’s failure to ensure that the form of title awarded, following investigation by the Poverty Bay Commission, was not prejudicial to Māori interests was a breach of the principles of the Treaty; and
(ii)the Crown’s failure to provide for legal tribal ownership when the Poverty Bay Commission “returned” the larger part of the land in 1873 breached the guarantee of tino rangatiratanga under article 2 and the Treaty principles of active protection and autonomy;
(d)the Crown’s native land regime and the new native title:
(i)the Crown’s native land regime and legislation expropriated the groups’ community rights to make their own title decisions (including in respect of their Mangatū lands), removed community land management rights and individualised the alienation process, in breach of both the title and tino rangatiratanga guarantees in the Treaty;
(ii)the native land title and transfer system imposed by the Crown was deliberative and inimical to the collective control of land, including the Mangatū lands, in breach of the tino rangatiratanga guarantee under article 2, the Crown’s obligation of active protection of Māori title, and rights under article 3, and prevented the owners of the Mangatū lands from exercising tino rangatiratanga; and
(iii)the Crown subjected Tūranga Māori landowners, including the tīpuna of the claimant groups, to unbearable systemic pressure to sell that was inconsistent with the Crown’s fiduciary obligation to Māori and the Treaty principle of active protection; and
(e)the Tūranga trusts, 1878–1955:
(i)although the Tūranga trusts were set up to maintain control of Māori land in the hands of the Māori owners, the Crown’s failure to provide support and legal infrastructure for Māori community management, and to prevent the erosion of Māori community land interests, against the legislative and legal barriers created by the Crown’s native land regime and policies, breached the tino rangatiratanga guarantee under article 2 and the Treaty principle of active protection;
(ii)these breaches affected the Mangatū lands when those lands became swept up in the Tūranga trusts;
(iii)the Crown’s inefficient and contradictory system of individual title transfer exposed the Carroll Pere Trust, which held titles in Mangatū lands, to exceptionally high legal costs and unprecedented levels of litigation, in breach of the tino rangatiratanga guarantee under article 2 and the principle of active protection;
(iv)the Crown’s failure to intervene in the rising debts incurred by the Carroll Pere Trust, when it was aware of the problem and of the consequences of its own title system, represented a breach of the principle of active protection; and
(v)the Crown, when it did intervene in 1902 and in 1906, failed to ensure the groups were included in the development of policy for the administration of their land, in breach of the Treaty principle of active protection, and the Mangatū owners were prevented from exercising their tino rangatiratanga with respect to their lands in Mangatū 1 until 1947.
[72] Te Aitanga a Māhaki, the Mangatū Incorporation and Ngāriki/Ngā Ariki Kaipūtahi were found to have well-founded claims which related to Mangatū CFL land in respect of the Crown Treaty breach in relation to the Mangatū afforestation and the Crown’s 1961 acquisition.88 The Crown’s actions in failing to act reasonably and with the utmost good faith during negotiations for the acquisition of Mangatū 1 land for afforestation breached the principle of partnership, and its failure to give serious consideration to available alternatives to sale or compulsory acquisition, leading to the separation of the Mangatū owners from their ancestral land, breached the guarantee of tino rangatiratanga under article 2 of the Treaty.
[73] Ngāriki/Ngā Ariki Kaipūtahi through the Native Land Court’s Mangatū title determination suffered from Treaty breaches by the Crown.89 The Crown failed to ensure that the hapū were able to reargue their interests in the Mangatū 1 block in the
88 At [4.203].
89 At [4.203].
Native Land Court when it imposed the native land regime. This removed control of Māori land from hapū and their rangatira and failed to recognise the tikanga required to give effect to tino rangatiratanga, in breach of article 2 of the Treaty. The result created increasingly acrimonious and lasting disputes in relation to the Mangatū 1 block among Te Aitanga a Māhaki, Ngāriki/Ngā Ariki Kaipūtahi and their uri.
Should the Mangatū CFL land be returned to Māori?
[74] The Tribunal next considered whether the Mangatū CFL land should be returned to Māori..90 It noted that the circumstances of this inquiry were different to those before the Wairarapa Remedies Inquiry Tribunal. The Wairarapa Remedies Inquiry was the subject of the High Court’s decision in Mercury, which was appealed to the Supreme Court in the Wairarapa Moana decision.91 In that case the Tribunal had not satisfied itself that there were well-founded claims related to, concerning or about the land sought to be returned. In taking this approach the High Court found that the Tribunal had erred.92
[75] Here the Tribunal found that the Mangatū CFL land was “the subject of the Crown’s wider Treaty breaches that undermined the tino rangatiratanga of the Mangatū owners, including Te Aitanga a Māhaki, Ngāriki/Ngā Ariki Kaipūtahi, and Te Whānau a Kai, leading to the loss of their lands.”93 The detailed findings by the Tribunal on the relationship of the Treaty breaches to the land are summarised above. These findings establish the threshold eligibility for the resumption claims. The Tribunal then turned to the consideration of the prejudice for the purposes of finding whether or not to recommend the return of the land. It determined that the Tribunal should consider the prejudice suffered by the customary owners of the Mangatū CFL land, the Tribunal could then take into account prejudice arising from Crown acts and policies that undermined the mana whenua and tino rangatiratanga of the claimant communities in both the Mangatū CFL land as well as in “other lands within their rohe on which they also depended.”94
90 At [5.9].
91 Mercury (HC), above n 20; and Wairarapa Moana, above n 2.
92 At [5.7]; and Mercury (HC), above n 20, at [88].
93 At [5.8].
94 At [5.10].
[76] The Tribunal said it was guided by Treaty principles and the nature and extent of the prejudice suffered by the claimants as a result of Crown’s Treaty breaches which related to the CFL land.95 It noted:96
Land is an essential foundation for hapū and iwi identity. Their rights in and authority over land were to be protected under Article 2 of the Treaty, which guaranteed not only the possession of land but “full chiefly control and management”.
[77]The Tribunal stated:97
We consider that the remedy required to restore the claimants’ mana whenua, and the economic, cultural, and spiritual well-being of their communities should include the return of the CFL land – indeed, it must. We will make a recommendation for the return of CFL land under section 8HB(1) to Māori ownership; it follows that the land should be returned to its customary owners.
[78] The three groups to be included in the return of the Mangatū CFL land were Te Aitanga a Māhaki, Ngāriki/Ngā Ariki Kaipūtahi and Te Whānau a Kai.98 Because each group had multiple well-founded claims that related to the CFL land, and each required significant redress, the Tribunal considered that the whole of the CFL land should be returned to Māori ownership.99
Who is to receive the Tribunal’s s 8HB recommendation?
[79] The Tribunal went on to consider who was to receive the Tribunal’s s 8HB recommendation. The Tribunal noted that it was performing an adjudicatory function under s 8HB.100 Once it had determined the statutory prerequisites were fulfilled it was required to make a recommendation under that section, but it noted that the purpose of the scheme was fundamentally remedial.101
[80] Having determined that the three claimants represented the groups who had suffered the prejudice and should receive the benefit of the Tribunal’s recommendation
95 At [5.196].
96 At [5.196].
97 At [5.200].
98 At [5.198]–[5.203].
99 At [5.203].
100 At [6.18].
101 At [6.18].
for the return of the land it noted that it was next required to decide on the allocation between those groups.
[81] The Tribunal referred to the Supreme Court’s comments in Haronga v Waitangi Tribunal to the effect that the language required the Tribunal to identify or to decide between competing claims once it had determined that the claim was well-founded and that the action to be taken to compensate to remove the prejudice “should include the return to Māori ownership” of the land or part of it.102 In addition, the Tribunal could return part only of the land or specify the groups to whom the Mangatū forest should be returned, and the Tribunal had “ample power to impose terms and conditions and to adjust interests if that seems necessary.”103
[82] The Tribunal also cited the Court of Appeal’s comments in its 2015 decision Haronga v Waitangi Tribunal to the effect that a particular challenge the Tribunal faced was not to create a fresh set of grievances.104 The Tribunal went on to note that it read those observations as supporting its view that the Tribunal’s adjudicative function under s 8HB(1) must be exercised in a manner compatible with the principles of the Treaty as developed by the courts and the Tribunal.105 It must also ensure its recommendations were consistent with the “practical application of the Treaty”, as the TOWA required.106
[83] The restorative approach to remedies, the Tribunal said, required it to focus on the “political, cultural and economic restoration of hapū and iwi who suffered prejudice from Crown Treaty breaches, rather than on a civil damages-based approach.”107 The restorative approach is based on future welfare, but the extent of what was lost was directly relevant to the prejudice suffered and accordingly therefore also the remedy required, especially in regard to land losses.108
102 Haronga (SC), above n 15, at [106].
103 At [107].
104 Haronga (CA) (2016), above n 15, at [74].
105 Remedies Report 2021, above n 1, at [6.24].
106 At [6.24].
107 At [6.23].
108 At [6.23]–[6.24].
[84] The Tribunal noted it had taken into account the submissions made by the parties in relation to the allocations of percentage interests in the Mangatū CFL land, the whole of which it had determined should be returned to Māori ownership.
[85] The allocation to Te Whānau a Kai is relevant to the counterclaim by Te Whānau a Kai because it was smaller than to the other two groups. This allocation recognised that the most important customary lands to Te Whānau a Kai were not Mangatū, but nevertheless the land and resources in Mangatū would have been increasingly important to Te Whānau a Kai as the Tūranga lands were lost as a consequence of the Crown’s Treaty breaches affecting those lands.109 Those matters were the subject of detailed consideration in earlier chapters.110
[86] The Tribunal’s restorative approach to remedies took into account the forestry experts’ evidence as to the risks associated with possible changes to the current forestry regulatory regime, including changes to the Emissions Trading Scheme, and concluded that the Tribunal should not recommend the return of CFL land to claimant groups that lacked an appropriate governance entity for such a purpose. It took the view that the governance entity must not only be representative of its claimant group but would also ultimately be responsible for the sound management of the land and eventually the forestry operation.111 The forestry evidence had detailed the numerous uncertainties around the future commercial value of the forest land and the complexities of managing it.
[87] In order to ensure those appropriate governance entities were established the Tribunal entered the iterative process which resulted in ratification of three appropriate governance entities to receive the benefit of the Tribunal’s recommendations. The entities established and approved by the Tribunal were: the Māhaki Forestry Settlement Trust, the Ngā Uri o Tamanui Trust and Te Whanau a Kai.112
109 At [6.158].
110 At [6.158], referring to chapters 4 and 5.
111 At [6.52].
112 At [6.142].
[88] The Tribunal then determined the allocations of the redress to each of those groups. In doing so the Tribunal took into account:113
(a)the tikanga of making separate allocations;
(b)the claimants’ connection to Mangatū;
(c)the prejudice each claimant group has suffered; and
(d)the economic base required to restore each group.
[89] The Tribunal noted the damage to relationships within the community of owners by the Native Land Court processes.114 It said that the ideal outcome of the inquiry would have been the return of the CFL land to the whole community of owners without making separate allocations to each claimant group.115 This could have been reached by the claimants reaching agreement during mediation on the manner in which the land would be returned to their collective ownership. However, that did not prove possible. Ultimately, all groups requested that the Tribunal make separate allocations to them.116
[90] The Tribunal said that as the parties had clarified their positions through discussions between groups, they had reached an outcome that each considered would best provide for the exercise by their group of their tino rangatiratanga. It would therefore be inappropriate in the circumstances for the Tribunal to impose an outcome that did not differentiate between the claimant groups in those circumstances, when the groups had “so strongly expressed their desire for separate allocations of land and compensation.”117
[91] After a detailed consideration of the factors that went to the allocation the Tribunal allocated a 68 per cent interest in the Mangatū CFL land to the Māhaki Forest
113 At [6.143].
114 At [6.151].
115 At [6.152].
116 At [6.152].
117 At [6.153].
Settlement Trust, an 18 per cent interest to the Ngā Uri o Tamanui Trust and a 14 per cent interest to the Te Whānau a Kai Trust.118
[92] The Tribunal said it did not wish to delay the adjudication any further and therefore the CFL land should be returned undivided.119 In order to divide the land between the different groups, the Tribunal needed more information, which would take further time. In addition, the forestry experts’ evidence was that addressing all the issues involved in a division on the ground, would require significant work and time. The Tribunal noted that it was inevitable that the groups would need to deal with each other even if they were given separate blocks of land. Sooner or later they would have to consider how to collectively manage forestry operations, as the land was incrementally returned by the licensee. It noted the claimant groups had been able to work together from time to time during the Inquiry.
[93] For those reasons the Tribunal determined it should return the CFL land undivided to give the claimants the best opportunity to benefit from the Tribunal’s recommendations in a timely manner. The governance entities would be in a position to proceed with the necessary negotiations between co-owners and with the licensee, with such expert advice as they may require. They would have ample opportunity themselves to pursue the partition of the land in separate parcels after receiving the land, meeting the immediate demands of managing the land and negotiating with the Crown and licensee. Accordingly, the Tribunal decided that the land should be returned undivided, with each claimant group’s interests in the land corresponding to their respective percentage interests as it had determined.120 It proposed to include terms and conditions it considered appropriate in order to protect the claimants’ interests as tenants in common.121
[94] The Tribunal noted “the tino rangatiratanga of the claimant groups ought to be acknowledged and reflected in how the land is returned to them”.122 To that end it concluded that the most appropriate ownership and governance arrangement for the
118 At [6.169].
119 At [6.195].
120 At [6.196].
121 At [6.196].
122 At [6.217].
return of the CFL land to Māori ownership was using a collective trust. The Tribunal had rejected the Crown’s submissions that the land be returned directly to the governance entities as co-owners as tenants in common. It determined that it would return the land undivided to a collective entity in the form of either a limited liability partnership or a trust. The Tribunal settled on a trust structure as the most appropriate and efficient structure, noting that the Trusts Act 2019 and the common law of equity provided “a substantial body of law to govern the trust and a principled framework for the resolution of any disputes”.123
[95] The trustees of the Mangatū Forest Collective Trust would be selected by each of the governance entities. The trustees would be responsible for the governance and management of the CFL land on behalf of all the beneficiaries, and were to be appointed in accordance with a process which the Tribunal considered reflected the tikanga required.124 If the trustees could not reach agreement, the appointment of the independent chairperson was to be made by the Te Hunga Roia Maōri o Aotearoa Law Society, in consultation with the New Zealand Law Society, within one month of the first meeting of the trustees.125
Compensation
[96] The Tribunal then dealt with the issue of how much statutory compensation was to accompany the return of the whole of the Mangatū CFL land. It noted that s 36 of the Crown Forest Assets Act provided for the return of CFL land to Māori ownership and the payment of compensation. I have set out the provisions of s 36 and sch 1 of that Act above.
[97] The Tribunal adopted the claimant groups’ submissions that the compensation should be based on the “net proceeds” approach under cl 3(c) and that 100 per cent compensation should be paid. The Crown for its part had submitted that the “real value” grace period should be extended beyond the initial four years.
123 At [6.214].
124 At [6.216]–[6.219].
125 At [6.225].
[98] The Tribunal then considered the matters it should take into account, including the socio-economic factors which contributed to the prejudice to the claimants resulting from the loss of the CFL land. It heard from a number of experts called by the parties, including economists. It also commissioned its own expert evidence on this aspect. I deal with this in more detail under the third ground of review.
Terms and conditions
[99] The Tribunal noted it was entitled to make its recommendation under s 6(3) on “such terms and conditions as the Tribunal considers appropriate”.126 The Tribunal had recommended that the land be transferred to the trustees of the Mangatū Forest Collective Trust as the identified recipient of the land, which is to subsequently distribute the licensed land and statutory compensation to three entities representing the claimant groups. It also set out a number of terms and conditions regarding the structure and operation of the trust and incidental provisions relating to the resumption, which I deal with below.
[100] I have gone into some detail on the findings of the Tribunal, as that is necessary to put the claims into context. The Remedies Report 2021 predated the Supreme Court’s decision in Wairarapa Moana. The Court in that decision also went to some detail in relation to the general approach to inquiries and the Tribunal inquiry and recommendations under consideration in that decision. I now turn to consider that decision.
The Supreme Court decision in Wairarapa Moana
[101] The Supreme Court’s decision in Wairarapa Moana dealt with the exercise of the Waitangi Tribunal’s “resumption” jurisdiction relating to the Treaty breaches set out in the 2010 Waitangi Tribunal report into the historical claims of Ngāti Kahungunu and Rangatāne.127 Rangatāne had since settled.
[102] The Kahungunu ki Wairarapa Tāmaki Nui-ā-Rua Settlement Trust claimed a mandate to represent all of Ngāti Kahungunu ki Wairarapa. It had engaged in
126 Treaty of Waitangi Act, s 8HB(1).
127 Wairarapa Moana, above n 2.
negotiations with the Crown and reached a settlement. At the same time, two entities related to Ngāti Kahungunu ki Wairarapa applied to the Tribunal for resumption of certain lands in which they claimed particular interest. Wairarapa Moana ki Pouākani Inc had sought resumption of a block of Waikato land outside the area of mana whenua of Ngāti Kahungunu ki Wairarapa, but in the rohe of Raukawa and Ngāti Tūwharetoa.
[103] The decision under appeal was the High Court decision referred to as Mercury.128 The High Court had found that the Tribunal was in error in making its recommendation that the Waikato land be resumed by Ngāti Kahungunu because such a return of land would breach tikanga due to the claimant not having mana whenua.
[104] The Supreme Court allowed the appeal, indicating that the tikanga of mana whenua needed to be evaluated in the wider context of tikanga at play in the particular circumstances.129 It said it was dangerous to apply tikanga principles, even important ones, as if they were rules that excluded regard to context.130 The Tribunal had the necessary expertise and understanding to consider the relevant tikanga principles in play.131
[105] The granting of resumption to non-mana whenua would not always breach tikanga and the Treaty.132 The Supreme Court emphasised that it was for the “Tribunal alone” to decide the outcome of the iterative process in which it was about to engage at the time that the judicial review application had been filed.133 The iterative process was to assist it in reaching a conclusion as to who were the suitable recipients for resumption of the forest and of the Waikato land.134
[326] Te Whānau a Kai also says that the Tribunal was able to avoid saying that it was the tribal entity of Te Whānau a Kai that held the customary interest in Mangatū. The iwi submitted that it should not go unnoticed that the interest is attributed to “people who were Te Whānau a Kai” and not to the tribal entity of Te Whānau a Kai. It says the “judicial machinations displayed here are concerning”. By accepting that “people who were Te Whānau a Kai” were customary owners but with lesser occupational rights established “sufficient interests” in the CFL lands to warrant binding recommendations in favour of Te Whānau a Kai. However, because those interests were few or minimal, according to the Tribunal, the equitable interest in the collective trust prescribed for Te Whānau a Kai is just 14 per cent.
[327] The counterclaim raises a number of allegations of failures by the Tribunal, which may be summarised under the following headings:
(a)Failure to properly take into account the claim by Te Whānau a Kai to mana whenua and its importance in the tikanga evaluation of customary rights, particularly after the decision in Mercury.
(b)Failure to robustly inquire into the historical claims by the Tūranga Inquiry Tribunal and failing to allow a reconsideration of those historical claims at that inquiry stage.
(c)Failure to take into account the evidence that Te Whānau a Kai presented as to its historical claims and claims as to customary interests or failing to give specific detailed reasons as to why it did not accept that evidence.
[328] Te Whanau a Kai maintained and elaborated on its position in its submissions following the delivery of the Supreme Court decision in Wairarapa Moana. I refer to those below.
[329] The third and fourth respondents submit that Te Whānau a Kai are contesting the facts and the weight applied to the evidence by the Tribunal. In addition they say that the submissions of the counterclaim applicant contain factual inaccuracies and/or oversights. But ultimately the submission is that the issues raised are not matters of law. They are rather a complaint about the determination that the Tribunal made about the nature of the counterclaim applicant’s customary interests in the land.
[330] The second and sixth respondents agree. Those respondents say that Te Whānau a Kai is in reality seeking to appeal against the merits of the Tribunal’s decision. They say the grounds of review do not raise matters of law.
[331]I now turn to each of the failures alleged.
Historical claims findings in the Principal Report
[332] As M Bennion noted the Tribunal in its Principal Report did consider mana whenua issues and noted that:379
Integral to our approach was the early identification of mandate and boundary disputes among claimants. By “mandate”, we meant essentially who had the right to speak for a particular community (usually a kin group) in respect of a particular grievance or grievances. By “boundary disputes”, we meant, in respect of land claims, disputes over which kin group “owned” the grievance.
[333] Notably, Te Whānau a Kai was actively involved in that inquiry. It acknowledges that it was involved but its complaint was that it was not on notice that it should have been filing evidence of customary interests in the CFL land and as a result the Te Whānau a Kai mana whenua concerns were not properly dealt with.
[334] The second and sixth respondents say that Te Whānau a Kai did not assert mana whenua interests in the Mangatū lands until resumption was being considered in the Remedies Report Inquiry. Those respondents noted that in the 2012 inquiry Te Whānau a Kai asserted “interests” in the Mangatū lands. By the time of the second remedies inquiry, those had been upgraded to a claim to mana whenua status and Te Whānau a Kai asserted a claim to 90 per cent of the block. Those respondents submit that this assertion did not oblige the Tribunal to go back to the beginning of the historic claims inquiry and start all over again by conducting a fresh inquiry into mana whenua interests.
[335] The Tribunal noted that in its closing submissions Te Whānau a Kai had sought a “fair and appropriate portion of the Mangatū CFL lands”, recognising that other groups were entitled (along with Te Whānau a Kai) to the return of some land. The Tribunal further noted that during the iterative process Te Whānau a Kai made further submissions and then sought a 90 per cent interest in the CFL land, along with the associated compensation and accumulated rentals.380
[336] In addition, as NUOT submits, the Principal Report cannot be the subject of a challenge in these proceedings. Te Whānau a Kai says that the Principal Report was
379 Principal Report, above n 7, at 5.
380 Remedies Report 2021, above n 1, at [6.148].
defective in that it did not provide sufficient detail to enable the Tribunal and the second remedies inquiry to properly assess the mana whenua. For instance, it criticised the lack of detail of the Tūranga Tribunal’s failure to recount in detail the 1881 Native Land Court title investigation of the Mangatū block, instead extracting certain key themes and arguments. In addition, Te Whānau a Kai says the Tribunal’s heavy reliance on the customary interests findings made in the Principal Report were based “in large part on a profoundly afflicted Native Land Court judgment”, which was not a rigorous enough approach to determining the customary interests in the post-Mercury era.
[337] NUOT pointed out that all parties were present at judicial conferences in relation to the Principal Report, in which the process adopted by the Tribunal included tight management to ensure that the claimants’ claims were properly recorded in the statement of issues the Tribunal generated. Amendments were made as required by the claimants in the Tribunal-generated statement of issues.381
[338] NUOT further submits that the Mercury decision did not “shift” the legal ground so that “fresh findings of well-foundedness” of historical actions of the Crown are required, as the counterclaim applicant had submitted.
[339] The submissions of the counterclaim applicant under this heading cannot succeed. The Tribunal was entitled to proceed in the remedies hearing on the basis of the well-founded claims that were identified in the Tribunal’s 2004 Principal Report. Nevertheless, the Tribunal in the Remedies Inquiry ensured that it received other evidence relevant to the remedies inquiry and took that into account, including that of Te Whānau a Kai’s historian, Mr Walzl.
[340] Te Whānau a Kai had the opportunity of being heard at all the relevant inquiries and was represented at all inquiries. There was no breach of natural justice.
381 Principal Report, above n 7, at 2–3.
Failure to take into account the evidence of Te Whānau a Kai
[341] Te Whānau a Kai was represented throughout the inquiries, including throughout the historical claims’ inquiry. It did not raise a claim relating to the Mangatū CFL land in the original Tūranga Inquiry even though it had the opportunity to do so. Indeed, the Tribunal had allowed the request of Te Whānau a Kai for an extension of four-and-a-half months to enable it to file its evidence. In any event, in the Remedies Inquiry the Tribunal heard evidence from Mr Walzl, the expert witness of Te Whānau a Kai, on the customary rights in the Mangatū lands, as well as the tangata whenua witnesses. It also had regard to their closing submissions and assertions in support of their claim to mana whenua on which their claim to 90 per cent of the Mangatū CFL land was based.
[342] Te Whanau a Kai acknowledges that it provided further evidence which included evidence of its customary links to the land in order to assist in determining more precisely the issue of to whom the land should be returned – but not to re-examine “well-foundedness” claims.382 Te Whānau a Kai suggests that its evidence was rejected because the Tribunal had a “closed mind”. The Tribunal therefore failed to take Te Whānau a Kai’s evidence of mana whenua in the Mangatū block into account.
Effect of the Wairarapa Moana decision
[343] In submissions on the effect of the Supreme Court decision in Wairarapa Moana, Mr Naden for Te Whānau a Kai submitted that the majority decision in the Supreme Court supported the iwi in its prayer for a mana whenua hearing. He pointed to the conclusion of the majority which had noted the importance of mana whenua in the Tribunal’s consideration of a resumption application but had rejected mana whenua as the only applicable tikanga principle at play. Mr Naden emphasised in bold type the concluding words at [95] of the Supreme Court judgment as follows:
382 The counterclaim applicant quotes in its submissions from the Waitangi Tribunal Memorandum- Directions of the Presiding Officer Calling for Submissions on Reconvened Inquiry (8 March 2017) Wai 814 at [3]. In that memorandum the presiding officer noted that the inquiry would require the parties to make that detailed evidence available including as to customary rights and relationships of the respective groups the Mangatū Crown Forest land in accordance with tikanga as well as prejudice suffered over time by each group from the impact of Treaty breaches which the Tribunal had identified.
[95] In conclusion, therefore, we reiterate the following points. Mana whenua is unquestionably important but it must be applied in context. One context is the tikanga framework itself. Other tikanga principles may also need to be considered. Further, tikanga adapts to circumstances as they arise. That is why it has proved to be so resilient. Finally, it is important to remember that tikanga speaks to process as well as substance. It is through whaka-ea as a process that the apparently irreconcilable may be reconciled. It follows that we are unable to agree with the High Court Judge’s conclusion that an applicant without mana whenua is likely to fail in an application for resumption. We do not yet know what might result from whaka-ea processes. Nor has there been a full assessment of the effect of other tikanga principles. These are matters for further consideration in the Tribunal’s iterative process. It is too soon to predict a likely outcome.
[344] Te Whānau a Kai submits that it is apparent from the conclusion of the majority in the Supreme Court that due process was not followed by the Tribunal in the present inquiry, as there was no assessment of mana whenua in the CFL land, let alone “a full assessment of the effect of other tikanga principles”. It points to the fact that in the Wairarapa inquiry the resumption applications were referred back to the Tribunal by the Supreme Court for it to continue its iterative process but this did not happen because legislation was passed preventing that investigation.
Analysis
[345] There is nothing to indicate that the Tribunal had a “closed mind” on any issues before it in the Remedies Inquiry. It noted that Te Whānau a Kai (and the other claimants) had previously participated in the Tribunal’s Tūranga Inquiry, which began in 2000. The Tribunal had found a wide range of Treaty breaches by the Crown, including its acquisition of parts of the land now comprising the Mangatū State Forest.383 It noted that Te Whānau a Kai was represented by a mandated collective entity for negotiations with the Crown at that stage. That collective in fact signed an agreement in principle with the Crown in August 2008. This was overtaken by the Supreme Court directing that the Tribunal hear the Mangatū Incorporation’s application for resumption remedies.
[346] Following that direction Te Whānau a Kai remained represented by the entity known as Te Aitanga a Māhaki and Affiliates (TAMA). The Tribunal did not dismiss TAMA’S application but adjourned it on the basis that there was a reasonable prospect
383 Remedies Report 2021, above n 1, at [1.3].
of TAMA successfully re-entering negotiations with the Crown once the mandate was renewed. The Remedies Report 2014 was the subject of a successful judicial review and the report was quashed.384 The Tribunal then reconvened the Mangatū Remedies Inquiry, leading to the Remedies Report 2021.
[347] At the reconvened hearing the Tribunal noted that its task was to decide whether the whole or part of the Mangatū CFL land should be returned to Māori ownership under s 8HB of the TOWA. It had already heard the broad historical claims in the Tūranga Inquiry between 2001 and 2002, reporting on them in the Principal Report. The Tribunal said:385
We rely on the Tribunal’s findings in the Tūranga report as a basis for our determinations relating to the Mangatū CFL land. We also have the advantage of additional, updated evidence about the impact of the Crown’s actions on the claimant groups over time. This additional evidence complements the findings in the Tūranga report, and gives us a fuller understanding of the prejudice – its nature and extent, and who it affected – that must be either removed or compensated for by our remedies recommendations. These are the foundations upon which we base our recommendations, which are set out at the end of this report.
[348] In its analysis on the determination as to who was to receive the Tribunal’s s 8HB recommendation it noted that all the claimants had suffered:386
… significant prejudice, including the loss of their autonomy and their land. As we have discussed throughout this report, the purpose of returning CFL land to Māori ownership is to restore the customary owners’ tino rangatiratanga and mana whenua in the land … It is also consistent with our restorative approach to remedies, that we recognise the customary owners of the Mangatū CFL land and ensure that their rights and interests are reflected in the Tribunal’s recommendations under section 8HB(1)(a).
[349] It noted that the Tūranga people generally were described in the earlier Principal Report as “kin groups inextricably linked by physical proximity and interwoven whakapapa, yet each with its own independent mana born of distinct whakapapa lines, distinct resource ownership, and strong leadership”.387 It noted that was true of the claimant groups in the Remedies Inquiry — closely connected, yet each with their own independent identity.
384 As detailed at [1.22].
385 At [1.36].
386 At [6.149].
387 At [1.30], citing the Principal Report, above n 7, at 38.
[350] The Tribunal noted that it would have preferred the ideal outcome of the return of the CFL land to the whole community of owners without making separate allocations to each claimant group. However, that could not be achieved through the mediation and therefore it proceeded to make the allocation of the land and the compensation to the trust in the percentage beneficial interest that I have set out above.
[351] In reaching those percentage interests, it said in relation to Te Whānau a Kai, to which it allocated 14 per cent:
(a)The nature of Te Whānau a Kai’s customary interests in the Mangatū lands through their Ngāriki whakapapa was clear.388
(b)Te Whānau a Kai’s allocation was smaller than those of the other two groups. This recognised its most important customary lands were not in Mangatū, although the land and resources in Mangatū would have been increasingly important to Te Whānau a Kai as the Tūranga lands were lost as a consequence of Crown Treaty breaches affecting those lands.
(c)Te Whānau a Kai was deprived of the richest resource in their Tūranga lands following the Crown’s confiscation of parts of their lands. It had an ongoing struggle to maintain its autonomy and independent identity. Following other significant losses in the period that the East Coast Commissioner controlled their lands as well as the alienation of blocks of land made Te Whānau a Kai more dependent on its interests in Mangatū 1. It suffered prejudice during extensive periods, when its land was controlled by the East Coast Commissioner, and then again when the Crown acquired land in 1961. While Te Whānau a Kai’s most important land losses were outside the Mangatū CFL lands they involved “egregious Crown breaches of Article 2 of the Treaty”.389 Therefore the Tribunal found recognition should be given to Te Whānau a Kai in view of the severity of the Treaty breaches and their impact on
388 At [6.155].
389 At [6.162].
Te Whānau a Kai.390 It noted that while Te Whānau a Kai would not have to provide for as large a population as the Māhaki Forest Settlement Trust it would still require a sizeable economic base to meet the costs of operating and to make meaningful investments in their communities’ welfare and to grow their resource base.391
(d)Finally, the Tribunal said:392
Inevitably, the outcome of our decision on allocation will not satisfy all claimants. There is a strong argument for each claimant group to receive a large portion of the returned CFL land. All of them have multiple claims concerning multiple Crown Treaty breaches that relate to the CFL land. Full compensation in terms of return of CFL land for the prejudice they have suffered from those many Treaty breaches is simply not available. Therefore, the only option open to us is to allocate each group a portion of the CFL land. The Tribunal has determined an allocation we consider to be fair and just to each party; which responds appropriately to the evidence we have heard, and the prejudice we have found each of the claimant communities has suffered; and which reflects the practical application of the Treaty.
[352] It appears that Te Whānau a Kai seeks to contest the merits of the factual findings of the Tribunal. There is no evidence of lack of natural justice. Te Whānau a Kai was involved in all the inquiries dating back to at least 2000. It had every opportunity to advance its claims. It was up to them to determine the strategy they used to pursue its interests.
[353] There is no evidence that the Tribunal had a closed mind. It was not required to detail every piece of evidence it heard from every witness and respond to it. The issues before it were complex, as was the historical evidence. The Tribunal was entitled to rely on earlier findings as to “well-founded” claims from an inquiry in which Te Whānau a Kai participated. There was no obligation on the Tribunal to present a draft report indicating the percentage allocations in order to call for a response. All parties were given ample opportunities to make submissions on the percentage allocations and did so. Natural justice does not require any further opportunity to comment on the draft report.
390 At [6.162].
391 At [6.166].
392 At [6.168].
[354] In any event, the evidence of Te Whānau a Kai as to the customary interests claimed was before the Tribunal. The Tribunal considered that and made its findings as to the Te Whānau a Kai entitlement. It is the degree or significance of its interests and entitlements determined by the Tribunal with which Te Whānau a Kai now takes issue. However, that assessment was a matter for the Tribunal.
[355] Te Whānau a Kai relies on the High Court Mercury decision to emphasise its argument that the Tribunal should have identified the “group of Māori” to whom the CFL land should be returned and the importance of “returning” the resumed land to its former owner. It said this required fresh findings of well-foundedness.
[356] First, the Mercury decision did not indicate that findings as to well-founded claims in earlier reports had to be revisited. Secondly, the Supreme Court has indicated that any analysis of tikanga must be taken in context and it is for the Tribunal to undertake that analysis. As noted above, mana whenua is not the only matter of tikanga to be considered.
[357] I also do not accept the submission of Te Whānau a Kai that the Supreme Court in Wairarapa Moana supported its submission that the Tribunal was required to undertake a separate inquiry into tikanga and in particular mana whenua.
[358] As Ms Feint pointed out, the Mangatū Remedies Inquiry is at an end and so at a different stage to that of the Wairarapa Remedies Inquiry. The Mangatū Tribunal had completed its assessment of tikanga including mana whenua as it relates to the claims based on the events giving rise to the claims and the context. By way of example, Ms Feint pointed to the Tribunal’s assessment of Te Whānau a Kai’s claim. The Tribunal noted that it understood the claimants’ references to “mana whenua” as meaning “their customary relationships with land”, which “could include ownership but were also connected to their history and identity as communities.”393 It noted the “tikanga of collective responsibility and action remain[ed] important today” and recognised the “gulf between Māori customary understandings of tino rangatiratanga in respect of their land, and the western concept of fee simple ownership.”394 The
393 Remedies Report 2021, above n 1, at [4.44].
394 At [4.50].
Tribunal went on to note that in its view, customary interests and mana whenua are often “reliant on the principles of whanaungatanga and manaakitanga governing the reciprocal obligations between groups, and the responsibilities of rangatira to act for the benefit of the collective.”395
[359] The Tribunal noted that Te Whānau a Kai had claimed to be customary owners in the Mangatū CFL lands, which was resisted by the other claimant groups, who claimed that Te Whānau a Kai did not hold mana whenua in Mangatū “as Te Whānau a Kai”.396 The Tribunal went on to find that it considered Te Whānau a Kai had a sufficient relationship to the CFL land for the reasons it set out, which included reliance on the evidence of Te Whānau a Kai’s historian, Mr Walzl.397 The Tribunal said it did not “wish to overstate the extent of Te Whānau a Kai’s interests.”398 Nevertheless, it was satisfied that Crown Treaty breaches “affecting Māori ownership of the Mangatū CFL lands would also have prejudiced Te Whānau a Kai.”399
Failure to take into account mana whenua
[360] The Supreme Court in Wairarapa Moana clarified that it was for the Tribunal to consider the applicable tikanga operating in relation to any resumption application. While mana whenua is an important consideration it must be considered in context with the other tikanga at play.
[361] Finally, Te Whānau a Kai says it was the “owner” given its mana whenua status. The Supreme Court has clearly stated that the Tribunal is not required to limit its inquiry into relevant prejudice under s 8HB to land directly acquired from Māori by the Crown, as Te Whānau a Kai seems to contend. Te Whānau a Kai also submitted that the Supreme Court had given a broad meaning to “return” insofar as it related to resumption land, which it said was “puzzling”. This is effectively a challenge to the finding of the Supreme Court. It is the final court of appeal and its judgments must be followed by this court. In any event the challenge is one of fact which is a matter for the Tribunal.
395 At [4.50].
396 At [4.56].
397 At [4.61].
398 At [4.62].
399 At [4.62].
[362] Te Whānau a Kai submits that it had mana whenua, which was not properly recognised by the Tribunal. This submission seeks to contest the merits of the factual findings of the Tribunal and is outside the ambit of this judicial review. The Tribunal made no error in that regard.
Conclusion
[363]In relation to the grounds of review in summary:
(a)In respect of the first ground of review, that the Tribunal erred in law in that it misconstrued and exceeded its jurisdiction and powers under s 8HB of the TOWA, I am satisfied the Tribunal has made no such errors of law. The Tribunal undertook the correct approach, correctly considered the relevant tikanga, and its recommendations are consistent with the approach endorsed by the Supreme Court in Wairarapa Moana.
(b)In respect of the second ground of review, that the Tribunal acted unlawfully in declining to extend the four-year “real value” period for compensation, I am of the view the Tribunal did not undertake the contextual analysis that it was required to complete and did not explain how the periods of delay were due to the failure of the Crown to exercise its best endeavours jointly with Māori to enable the Tribunal to deliver in relation to all its recommendations “in the shortest reasonable period” in the circumstances.
(c)In respect of the third ground of review, that the Tribunal erred in law in that in misconstrued the proper purpose and scope of statutory compensation under the Crown Forest Assets Act, took account of irrelevant considerations in its determination of the statutory compensation payable and acted outside its power, I am satisfied the Tribunal did not err in any respect. The Tribunal followed the correct approach to compensation, carefully evaluated the evidence, and took into account the relevant material.
[364] In respect of the fourth ground of review, that the Tribunal erred in law in its assessment of the terms and conditions recommended under s 8HB of the TOWA for return of the CFL land, I am satisfied the Tribunal was entitled to propose the terms and conditions that it did. However, the provisions of cl 1 of the terms and conditions, restricting inconsistent variations, fail to express what was actually intended and decided. This may be corrected without intervention from this Court under the slip provision in s 8HC(7)–(8). I therefore do not consider this requires a direction from this Court, but if such direction is necessary, I would direct that the Tribunal reconsider that provision in view of the provisions of s 8HC of the TOWA.
[365] The applicant is successful on the second ground of review. The Crown is entitled to a declaration that the Tribunal’s determinations under this head were wrong by reason of the errors set out above. The Tribunal is directed to reconsider its recommendations in relation to declining to extend the four-year CPI-only period for the compensation amount under the Crown Forest Assets Act consistent with this judgment.
[366] The other grounds of review are dismissed, subject to any further directions required in relation to cl 1 of the terms and conditions.
[367] I have not formulated the declaration to which the Crown is entitled and direct the parties to file a joint memorandum if agreement can be reached on that as well as any other matters which may require consequential attention. Otherwise if anything further is needed the parties should file memoranda following the timetable set out for costs below.
[368]The counterclaim fails, and it is dismissed in its entirety.
Costs
[369] If the parties are unable to agree on costs on this matter any application should be made within 14 days the date of this judgment, any response within another 14 days and any reply within a further seven days.
Grice J
Solicitors:
Crown Law Office, Wellington
Bernadette Arapere Barrister, Whanganui Paul Radich, Kings Counsel, Wellington Lyall & Thornton, Auckland
Bennion Law, Wellington
Tamaki Legal Limited, South Auckland Corban Revell, Auckland
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