Estate of Ruru v Attorney-General
[2025] NZCA 597
•13 November 2025
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA149/2023 [2025] NZCA 597 |
| BETWEEN | ESTATE OF ERIC JOHN TUPAI RURU |
| AND | ATTORNEY-GENERAL |
| CA150/2023 | ||
| BETWEEN | ATTORNEY-GENERAL | |
| AND | WAITANGI TRIBUNAL | |
| CA151/2023 | ||
| BETWEEN | DAVID THOMAS HAWEA | |
| AND | WAITANGI TRIBUNAL | |
| Hearing: | 9–11 July 2024 |
Court: | Courtney, Ellis and Cooke JJ |
Counsel: | K S Feint KC, M S Smith and D T Haradasa for Te Aitanga a Māhaki (Appellants in CA149/2023, Second and Sixth Respondents in CA150/2023 and Third and Sixth Respondents in CA151/2023) |
Judgment: | 13 November 2025 at 3.00 pm |
JUDGMENT OF THE COURT
AThe appeal in CA150/2023 is allowed. The Waitangi Tribunal’s decisions are set aside.
B The appeal in CA149/2023 is dismissed.
C The appeal in CA151/2023 is dismissed.
DThe Waitangi Tribunal is directed to reconsider its decisions in light of this judgment.
EThe first and second appellants in CA149/2023 must pay the Attorney‑General one set of costs in respect of both CA149/2023 and CA150/2023 for a standard appeal on a band B basis, on the basis of a 2.5 day hearing. We certify for second counsel.
FThe appellant in CA151/2023 must pay the third and sixth respondents in CA151/2023 costs for a standard appeal on a band B basis, on the basis of a half-day hearing. We certify for second counsel.
____________________________________________________________________
REASONS
Para No
Cooke J[1]
Courtney and Ellis JJ [190]
COOKE J
Table of Contents
Para No
Background [4]
Lands and Forests [5]
The Tūranganui-a-Kiwa district claim [9]
Wairarapa Moana[15]
The 2021 Remedies Report [17]
The judicial review proceeding and the appeal [19]
The appeals before us [22]
Issues on appeal [25]
First issue: the requirements for resumption [26]
The provisions [27]
The Tribunal’s approach [31]
Arguments [39]
The significance of the issue [45]
Text and purpose of the provisions [47]
The specific machinery of the provisions [59]
The implications of the broad interpretation [70]
The approach in Haronga and Wairarapa Moana[79]
The principles of the Treaty [90]
The resumption applications here [97]
Conclusion [104]
Second issue: the percentage award [108]
Arguments [120]
Analysis [122]
Third issue: rate of interest [134]
Arguments [140]
Analysis [143]
Fourth issue: terms and conditions [152]
The indemnity requirement [156]
The collective trust requirement [159]
The title requirement [161]
Conclusion [162]
Fifth issue: appeal by Te Whānau ā Kai [164]
Remedy and costs [174]
Conclusion [177]
Result [184]
This judgment concerns three related appeals.[1] Each of the appeals concerns the interpretation and application of the resumption provisions in the Treaty of Waitangi Act 1975 (the TOWA) that have now been considered in a series of decisions, including that of the Supreme Court in Haronga v Waitangi Tribunal (Haronga),[2] the High Court in Mercury NZ Ltd v Waitangi Tribunal (Mercury),[3] and the Supreme Court in Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd (Wairarapa Moana).[4] The provisions have also been considered in a series of decisions of the Waitangi Tribunal (the Tribunal), including the report which is the subject of these judicial review proceedings.[5] It is likely that this decision will be subject to a further appeal to the Supreme Court irrespective of the result. It is an issue of importance not only for the current parties but also more broadly.
[1]Attorney-General v Waitangi Tribunal [2023] NZHC 132 [judgment under appeal].
[2]Haronga v Waitangi Tribunal [2011] NZSC 53, [2012] 2 NZLR 53 [Haronga].
[3]Mercury NZ Ltd v Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 [Mercury].
[4]Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 [Wairarapa Moana].
[5]Waitangi Tribunal The Mangatū Remedies Report 2021 (Wai 814, 2021) [2021 Remedies Report]. Other decisions considering these provisions include Waitangi Tribunal The Ngāti Kahu Remedies Report (Wai 45, 2013) and Waitangi Tribunal Determinations of the Tribunal Preliminary to Interim Recommendations Under Section 8B and 8HC of the Treaty of Waitangi Act 1975 (Wai 863, 2020).
The issues on appeal are identified at [25] below. On the first issue, which concerns the Tribunal’s interpretation and application of s 8HB of the TOWA, the majority reasons are given by Courtney and Ellis JJ.[6] I write separately on that issue. We are unanimous on the reasoning for all other issues and the result of the appeals.
[6]Below at [191]–[309].
The substantive parties to the appeals are the Attorney-General and parties representing groups who have advanced claims before the Tribunal, namely:[7]
(a)The estate of Eric John Tupai Ruru, and Mr Alan Haronga, on behalf of Te Aitanga a Māhaki iwi and hapū (Māhaki), and the proprietors of Mangatu Blocks Incorporated (Mangatu Incorporation), respectively;[8]
(b)Ms Tanya Rogers and Mr Rawiri (David) Brown, and Mr Owen Lloyd, on behalf of Ngā Uri o Tamanui;[9] and
(c)Mr David Hawea on behalf of Te Whānau ā Kai.
Background
[7]We have adopted the tohutō (macron) usage as used by the parties in their submissions. We have also retained the spelling of words as used in the original source, for example by omitting the tohutō where the original source does not use one.
[8]The Mangatu Incorporation was established by statute in 1893 to enable the owners of one of the Mangatū blocks, Mangatū 1, to hold legal title to the block collectively: see Mangatu No 1 Empowering Act 1893. This was later reincorporated with Mangatū 1, Mangatū 3 and Mangatū 4 as a body corporate under the name “The Proprietors of the Mangatu Nos 1, 3, and 4 Blocks (Incorporated)”: see Maori Purposes Act 1947, s 21. I refer to both as the Mangatu Incorporation, as the parties and the Tribunal have done.
[9]Ngā Uri o Tamanui is the entity that represents the interests of both Ngā Ariki/Ngāriki Kaipūtahi in respect of the land at issue, and exists to receive land under s 8HB: see 2021 Remedies Report, above n 5, at 30–31 and 257.
There is a degree of historical and procedural complexity surrounding the issues that arise on these appeals and I begin by summarising some of that background.
Lands and Forests
The matters in issue in these appeals ultimately derive from the decision of this Court in New Zealand Maori Council v Attorney-General (Lands) and its repercussions.[10] The state asset sales programme introduced by the Government in the late 1980s was halted by the Court because the divestiture by the Crown of land potentially subject to te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty) claims prejudiced the Crown’s ability to give effective relief, in the form of the return of land, for breaches found.[11]
[10]New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) [Lands case].
[11]See at 665 and 668 per Cooke P.
Following the judgment of the Court, the Crown and the New Zealand Māori Council entered into negotiations. Those negotiations resulted in an agreement that was then reflected in the Treaty of Waitangi (State Enterprises) Act 1988 (the TOW State Enterprises Act). This legislation introduced the first of the provisions of the kind that are in issue in the present appeal.[12] As this Court recorded in a later postscript to the judgment in the Lands case, the broad principle of this legislation was that, if land was transferred to one of the newly established state-owned enterprise (SOE) and the Tribunal subsequently determined it should be returned to Māori ownership, that determination would be compulsory. The agreement leading to the legislation was described by the Court as “momentous”.[13]
[12]See Treaty of Waitangi (State Enterprises) Act 1988, preamble, para (g)(i).
[13]Lands case, above n 10, at 719.
Further negotiations then occurred between the Crown and Māori in relation to Crown-owned forestry lands, leading to the decision of this Court in New Zealand Maori Council v Attorney-General (Forests), and another agreement dated 20 July 1989 (the 1989 Agreement).[14] The terms of the 1989 Agreement were enacted in the Crown Forest Assets Act 1989 (the CFAA) which further amended the TOWA to insert the provisions that are directly in play in this case.[15] One of those provisions also addressed compensation, which gives rise to further issues.[16]
[14]New Zealand Maori Council v Attorney-General [1989] 2 NZLR 142 (CA) [Forests case].
[15]Crown Forest Assets Act 1989, ss 35–37 and 40; and Treaty of Waitangi Act 1975, ss 8HA–8HI.
[16]See Crown Forest Assets Act, s 36 and sch 1.
These agreements, and the legislation that gave effect to them, contemplated the Tribunal conducting inquiries into land claims, and ordering that the land be returned to Māori ownership in certain circumstances, referred to as “resumption”. But complications have arisen, for a number of unforeseen and interrelated reasons, including that:
(a)the process of resolving land claims has taken longer than the parties may have originally contemplated;
(b)the Tribunal has engaged in a practice of conducting district inquiries, where claims of Treaty breaches were addressed in relation to particular districts of New Zealand, rather than on a claim-by-claim basis;[17] and
(c)the scale of what was involved in assessing Treaty breaches was underestimated.
The Tūranganui-a-Kiwa district claim
[17]See, generally, Waitangi Tribunal The new approach revisited: a discussion paper on the Waitangi Tribunal’s current and developing practices (December 2005).
The district inquiry relevant to the present case was the Tribunal’s inquiry into the Tūranganui-a-Kiwa district, or Poverty Bay (the District Inquiry). It is the area of three iwi, Te Aitanga a Māhaki, Rongowhakaata, and Ngāi Tāmanuhiri. Other groups, including Te Whānau ā Kai, also reside in the area. The District Inquiry included land located in the north of the Tūranga district within the Mangatū State Forest. This forest comprises a total area of 30,910 acres, of which 8,903 acres are in what is known as the Mangatū 1 block (Mangatū 1), and 10,065 acres are in what is known as the Mangatū 2 block (Mangatū 2). Only parts of the Mangatū State Forest are Crown forest licensed lands (the CFL lands) subject to the resumption provisions that are in issue in this case. Moreover, some of the CFL lands straddle the boundary between the Tūranga and East Coast Inquiry Districts. The lands outside the Tūranga district are not subject to these resumption decisions. Maps from the Tribunal’s 2021 Mangatū Remedies Report (the 2021 Remedies Report) showing the relevant lands and Mangatū 1 and Mangatū 2 are included as Appendix A and B.[18]
[18]2021 Remedies Report, above n 5, at xx and 6. The forestry block known as “Mangatū 1” is larger than the 8,903 acres that we will refer to as Mangatū 1.
Following extensive inquiries, the Tribunal released its District Inquiry report in 2004 (the 2004 Report).[19] A number of Treaty breaches were identified. As was standard practice, the Tribunal did not make any specific recommendations in relation to remedies at that point, but adjourned its inquiry to encourage direct negotiations between the Crown and iwi.
[19]Waitangi Tribunal Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims (Wai 814, 2004) vol 1 [2004 Report, vol 1].
In 2008, a Treaty settlement was agreed in principle between the Crown and Māori in the region. But the Mangatu Incorporation was dissatisfied with the proposed settlement and sought an urgent hearing of a claim for resumption of the Mangatū lands before the Tribunal, under the provisions that are in issue in this appeal. The Tribunal declined to hold the hearing urgently on the basis that the negotiations for settlement should conclude first. In Haronga, the Supreme Court then held the deferral was unlawful and directed the Tribunal to hold an urgent resumption hearing.[20]
[20]Haronga, above n 2, at [111] per Elias CJ, Blanchard, Tipping, and McGrath JJ.
Between the Supreme Court’s decision in Haronga and the Tribunal hearing, other groups had joined the Mangatu Incorporation in making particularised applications for resumption. More particularly, the Tribunal ultimately dealt with the following claims for resumption of the CFL lands in the Mangatū State Forest:[21]
(a)by Mr Haronga, on behalf of the proprietors of the Mangatu Incorporation;
(b)by Mr Eric (John) Ruru, on behalf of Te Aitanga a Māhaki;
(c)by Ms Rogers and Mr Brown, on behalf of Ngāriki Kaipūtahi;
(d)by Mr Lloyd, also on behalf of Ngā Ariki Kaipūtahi (with Ngāriki/Ngā Ariki Kaipūtahi’s joint interests in respect of the land at issue represented by Ngā Uri o Tamanui); and
(e)by Mr Hawea, on behalf of Te Whānau ā Kai.
[21]2021 Remedies Report, above n 5, at 19.
There is a degree of complexity in relation to the interests and status of the claimant groups, although the interests of the claimants broadly aligned, and the differences are not material for the purposes of the issues before us other than in respect of the separate challenge brought by Te Whānau ā Kai. The Tribunal later explained the interests and status of the claimants in the 2021 Remedies Report.[22]
[22]At 20–36.
The Tribunal held further hearings in 2012, and in a report published in 2014 (the 2014 Remedies Report), it declined all the applications notwithstanding that it found the relevant prerequisites for resumption existed.[23] That decision was successfully challenged in the High Court.[24] The High Court decision was then upheld on appeal in Attorney‑General v Haronga.[25] The Tribunal was required to reconsider its decisions.[26] It is this reconsideration decision that is the subject of these proceedings.
Wairarapa Moana
[23]Waitangi Tribunal The Mangatū Remedies Report (Wai 814, 2014) [2014 Remedies Report] at 130.
[24]Haronga v Waitangi Tribunal (Te Ropu Whakamana I Te Tiriti o Waitangi) [2015] NZHC 1115. There was a second successful judicial review challenge to an unsuccessful resumption application involving land in the far north of the North Island where the Tribunal found that the claims were all well-founded, but the resumption application was declined: see Flavell v Waitangi Tribunal [2015] NZHC 1907. An appeal against this decision was heard alongside the appeal in the Haronga decision: see Attorney-General v Haronga [2016] NZCA 626, [2017] 2 NZLR 394 .
[25]Attorney-General v Haronga, above n 24, at [97].
[26]Haronga v Waitangi Tribunal (Te Ropu Whakamana I Te Tiriti o Waitangi), above n 24, at [114]; and Attorney-General v Haronga, above n 24, at [97].
By the time this reconsideration occurred, the Tribunal had considered the resumption powers in the context of other applications. A preliminary determination of the Tribunal dated 24 March 2020 concerned resumption applications advanced by iwi in the Wairarapa.[27] That determination was set aside in Mercury.[28] In that judgment I adopted a narrower interpretation of the legislation than the Tribunal and held that, whilst resumption might still be available on the narrower interpretation, it should not be ordered because such an order was not consistent with tikanga as the land in issue was within the rohe of other iwi who opposed the order.[29]
[27]Waitangi Tribunal Determinations of the Tribunal Preliminary to Interim Recommendations Under Sections 8B and 8HC of the Treaty of Waitangi Act 1975 (Wai 863, 2020).
[28]Mercury, above n 3, at [148].
[29]See at [89], [117] and [147(d)].
On a direct appeal the Supreme Court held that I had erred in my conclusions concerning tikanga.[30] In addition, and whilst the question of the interpretation of the provisions had not been raised on appeal, the Supreme Court also raised issues about the narrower interpretation that I had adopted.[31] No further steps were taken in relation to that resumption application following the Supreme Court decision, however, as a Treaty settlement had been entered into which settled the resumption claims.
The 2021 Remedies Report
[30]Wairarapa Moana, above n 4, at [74] per Winkelmann CJ, Glazebrook and Williams JJ.
[31]See at [100] per Winkelmann CJ, Glazebrook and Williams JJ.
At the time of delivery of the 2021 Remedies Report that is the subject of these proceedings, I had delivered the decision in Mercury, but the Supreme Court had not yet delivered its decision. The Tribunal sought to address the implications of the High Court’s approach in the 2021 Remedies Report.[32]
[32]See 2021 Remedies Report, above n 5, at chs 3–5.
The Tribunal made three decisions that are relevant to these appeals:
(a)It made a preliminary determination upholding the claims for resumption in relation to Mangatū 1 and Mangatū 2 and decided that the lands should be transferred to the Mangatū Forest Collective Trust, with the shareholding interests in that trust divided between the claimant groups.[33]
(b)It determined that the amount of compensation that should accompany the resumption of the lands should be increased to the maximum amount available.[34]
(c)It determined that the interest rate that should apply to the compensation should be at the higher level contemplated by the legislation (with the exception of a period of time where delays were occasioned by the effects of the COVID-19 pandemic).[35]
The judicial review proceeding and the appeal
[33]At 396.
[34]At 399–401.
[35]At 344–345.
The Crown then brought these proceedings, in which it sought judicial review of the Tribunal’s decisions. The Crown argued that the Tribunal had misinterpreted and misapplied the resumption powers.[36] Te Whānau ā Kai also challenged the Tribunal’s recommendations on the basis that the Tribunal’s inquiries had been inadequate and failed to properly recognise the rights and interests of Te Whānau ā Kai when awarding resumption to the Mangatū Forest Collective Trust.[37]
[36]See judgment under appeal, above n 1, at [18]–[24].
[37]At [7].
In addressing the judicial review challenges, the High Court reached the following conclusions which are challenged on appeal:
(a)It dismissed the Crown’s contention that the Tribunal had misinterpreted and misapplied the resumption powers when upholding the claims for resumption over Mangatū 1 and Mangatū 2.[38]
(b)It dismissed the Crown’s contention that the Tribunal had misinterpreted and misapplied the provisions in relation to the amount of compensation awarded.[39]
(c)It upheld the Crown’s challenge to the decision concerning the award of interest, and directed the Tribunal to reconsider that decision.[40]
(d)It dismissed the Crown’s challenge based on the terms and conditions of resumption.[41]
(e)It dismissed Te Whānau ā Kai’s challenge that its interests had not been appropriately addressed.[42]
[38]At [175]–[177].
[39]At [268]–[269].
[40]At [232].
[41]At [318]–[319].
[42]At [362].
By the time of the hearing of these challenges in the High Court, the Supreme Court had delivered its decision in Wairarapa Moana. In addressing resumption, Grice J held that the approach adopted by the Tribunal was consistent with the relevant principles set out in the decision in Mercury, as well as the considerations outlined by the Supreme Court in Wairarapa Moana.[43] She concluded that any difference between the two approaches would not have significance in most inquiries and was not significant in this case.[44]
The appeals before us
[43]At [175].
[44]At [134].
In CA150/2023, the Attorney-General appeals against the decision of the High Court rejecting central aspects of the Attorney-General’s judicial review application.[45] The Attorney-General contends that: the Tribunal and the High Court misinterpreted the provision allowing resumption, s 8HB(1)(a) of the TOWA; incorrectly applied the statutory compensation provisions in the CFAA; and erred in the terms and conditions that were imposed alongside the return of the land. The appeal is opposed by Māhaki and the Mangatu Incorporation — represented by the second and sixth respondents, being the estate of Eric John Tupai Ruru and Mr Haronga, respectively — and Ngā Uri o Tamanui, represented by the third and fourth respondents, Ms Rogers, Mr Brown and Mr Lloyd respectively. I will refer to all of these parties as the “opposing respondents”. The fifth respondent, Mr Hawea, is a representative of Te Whānau ā Kai and did not participate in this appeal. The first and seventh respondents also did not actively participate.[46]
[45]Specifically the parts of the decision in respect of the first, third and fourth grounds of review: see at [117]–[177], [233]–[269] and [270]–[319].
[46]The Waitangi Tribunal, the first respondent, filed a notice of appearance and was represented by counsel at the hearing in order to assist the Court. The Tribunal abides the decision of the Court in respect of all the appeals.
In CA149/2023, Māhaki and the Mangatu Incorporation appeal against the decision of the High Court overturning the Tribunal’s determination in relation to the interest component associated with resumption under sch 1 of the CFAA.[47] That appeal is opposed by the Attorney-General.
[47]Specifically the part of the decision in respect of the second ground of review: see judgment under appeal, above n 1, at [178]–[232].
In CA151/2023, Te Whānau ā Kai appeals against the High Court’s dismissal of its judicial review claim that the Tribunal erred by ordering that resumption should be to Māhaki rather than to Te Whānau ā Kai. That appeal is opposed by the opposing respondents and the Attorney-General.
Issues on appeal
The appeals raise the following key issues:
(a)whether the High Court was correct in concluding that the Tribunal correctly interpreted and applied the resumption provisions under the TOWA;
(b)whether the High Court was correct in concluding that the Tribunal correctly interpreted and applied the provisions in the CFAA in relation to the determination of the compensation to be awarded;
(c)whether the High Court was correct in concluding that the Tribunal incorrectly interpreted and applied the provisions concerning the interest rate to be applied to the compensation awarded;
(d)whether the High Court was correct in concluding the Tribunal correctly interpreted and applied the provisions concerning the terms and conditions to apply to the resumption recommendation; and
(e)whether the High Court erred in dismissing Te Whānau ā Kai’s judicial review challenge to the Tribunal’s decision.
First issue: the requirements for resumption
The first issue arises from CA150/2023: whether the Tribunal correctly interpreted and applied the resumption provisions under the TOWA. The Tribunal upheld all of the resumption applications,[48] and the High Court dismissed the Crown’s challenge to the Tribunal’s decision.[49] The Crown argues that the High Court was wrong to dismiss its judicial review challenge in this respect.
The provisions
[48]See 2021 Remedies Report, above n 5, at 396.
[49]See judgment under appeal, above n 1, at [175]–[177].
The TOWA creates jurisdiction for the Tribunal to inquire into and report on whether claims of Treaty breaches are well-founded, and to provide recommendations on the action that should be taken to compensate for, or remove, the prejudice arising from such breaches. This jurisdiction was established by s 6 on the TOWA’s enactment in 1975. Section 8HB was then inserted by the CFAA in 1989. It provides:
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 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 Maori 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 Maori ownership (which recommendation shall be on such terms and conditions as the Tribunal considers appropriate and shall identify the Maori or group of Maori to whom that land or that part of that land is to be returned); or
(b) if it finds—
(i) that the claim is well-founded; but
(ii)that a recommendation for return to Maori ownership is not required, in respect of that land or any part of that land by paragraph (a)(ii),—
recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land not be liable to return to Maori ownership; or
(c)if it finds that the claim is not well-founded, recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land not be liable to return to Maori ownership.
(2)In deciding whether to recommend the return to Maori 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.
(4)On the making of a recommendation for the return of any land to Maori ownership under subsection (1), sections 40 to 42 of the Public Works Act 1981 shall cease to apply in relation to that land.
In their submissions before us, the parties contended that there were essentially three alternative interpretations of this provision in issue, namely:
(a)The narrow approach: the requirement that the Treaty breach “relates to” the land, requires a breach associated with the Crown’s acquisition of the land. Resumption can only be legitimately ordered to address the prejudice arising from such a breach. This is the interpretation adopted in the dissenting judgment of William Young J in Wairarapa Moana.[50]
(b)The middle approach: the requirement that the Treaty breach “relates to” the land is focused on the breach that led to the land leaving Māori ownership, but broader Treaty breaches may be taken into account in determining whether the land should be returned to Māori. The purpose of ordering resumption is nevertheless directed to addressing the prejudice arising from the land leaving Māori ownership because of the Treaty breach. This was the interpretation I adopted in the High Court in Mercury.[51]
(c)The broad approach: the requirement that the Treaty breach “relates to” the land does not require a specific breach associated with the loss of the land, but only that there be an association between Treaty breaches and the land through a focus on the prejudice suffered by iwi and hapū as customary owners of the land. Resumption may be legitimately ordered to address the prejudice from more widespread Treaty breaches affecting Māori identified in the Tribunal’s district‑wide report. An interpretation along these lines was adopted by the Tribunal and upheld by the High Court in the present case, and is supported by the observations of the majority of the Supreme Court in Wairarapa Moana.[52]
[50]Wairarapa Moana, above n 4, at [187].
[51]Mercury, above n 3, at [68]. See also Wairarapa Moana, above n 4, at [101] per Winkelmann CJ, Glazebrook and Williams JJ, describing my approach as the “middle course”.
[52]Wairarapa Moana, above n 4, at [102]–[106].
Before us the Attorney-General argued that the middle approach is correct, and the opposing respondents argued that the broad approach is correct.
As will be apparent from the different views we have reached on the interpretation of s 8HB, these three categories involve an oversimplification, however. There are different interpretive approaches available within each of these broad categories.
The Tribunal’s approach
In the 2021 Remedies Report, the Tribunal conducted its own analysis of the proper interpretation of the statutory provisions and concluded that a broad interpretation was appropriate. It described the test for determining whether a breach related to the land being claimed under s 8HB of the CFAA in the following terms:[53]
[24] In our view, a claim meets the “relates to” statutory threshold if it demonstrates the following three elements:
(a) The claim concerns the CFL land in some way.
(b)The claimant has a relationship to the CFL land (for example, through the exercise of tino rangatiratanga, mana whenua, or some other ancestral connection or interest).
(c)The prejudice suffered by the claimant as a result of the Treaty breach has led to the claimant’s relationship with the CFL land being destroyed or damaged.
[53]2021 Remedies Report, above n 5, at 75 (footnotes omitted).
The Tribunal rejected the Crown’s argument that the relevant well-founded claims should concern the Crown’s acquisition of those lands.[54]
[54]At 77–78.
The Tribunal conducted a detailed factual analysis of the Treaty breaches found in the District Inquiry in order to determine whether they met these requirements. Ultimately, it effectively concluded that all of the Treaty breaches relied upon did so. That was because the events in the district over the years were inherently interlinked. The Tribunal said:[55]
[33] … In the District Inquiry, the Tribunal was “continually struck by the way in which the many [Tūranga] claims form part of a single cohesive story”, so that the impacts of the Crown’s breaches on each hapū or iwi rippled out across the whole district because of their shared relationships and overlapping interests. In particular, the Tribunal identified a close causal connection between the forceful imposition of the Crown’s authority over Māori land (and other resources) and the ensuing widespread land alienation and impoverishment that followed from which all Tūranga Māori suffered. In Tūranga, the Crown’s breaches of Article 2 and the loss of Māori autonomy and tino rangatiratanga lay at the root of the loss of community lands.
[55]At 78–79 (footnotes omitted).
The Mangatū 1 land was acquired by the Crown from Māori in 1961. The Mangatū 2 land was acquired by private parties from the Māori owners over a decade from 1888 and subsequently acquired by the Crown. As a consequence of the interpretation adopted, the Tribunal held that the Treaty breaches relating to the Mangatū 1 and Mangatū 2 land included:
(a)The Crown’s attack at Waerenga a Hika and its treatment of Te Kooti and the Whakarau in the period from 1865 to 1868.[56] The Tribunal noted that until 1865, Māori had successfully protected their lands, but this started to change with the Crown’s attack on the defensive pā at Waerenga a Hika. Over 70 were killed in the attack and 400 surrendered. Over 100 male prisoners were then transported to Wharekauri (the Chatham Islands). The Tribunal held that Te Kooti and the Whakarau detained on Wharekauri were justified in then escaping on the schooner The Rifleman and returning to Tūranga in 1868. They were then pursued by multiple expeditions of colonial militia. Te Kooti’s forces struck back at local communities and up to 34 settlers and approximately another 40 Māori were killed. A further battle at the pā of Ngātapa took place with a further large number of deaths and imprisonments. This series of events involved a series of qualifying Treaty breaches that had catastrophic economic and social impacts. The Crown’s initial assertion of military power was intended to crush Māori autonomy in the district. The Tribunal held that the aftermath of these events meant for the Crown that it was “for the first time in a position to impose its own control over Tūranga lands and to secure large tracts of land for settlement”, and that these breaches accordingly related to both Mangatū 1 and Mangatū 2 under s 8HB.[57]
[56]See at 92–99.
[57]At 99.
(b)The breaches arising from the deed of cession in 1868 and the Crown’s retained lands then followed.[58] The Crown sought to obtain lands by imposed cession. The Crown then sought to empower the Native Land Court to determine whether Māori in the region had joined in the rebellion or remained loyal to the Crown. Mistakes were made in the legislation to implement this approach and, by the time replacement legislation was passed, Te Kooti and Whakarau had escaped from Wharekauri. Beginning in December 1868, a deed of cession surrendering land was signed by Māori declaring themselves loyal to the Crown, and acknowledging that some had acted in rebellion. The Tribunal found this deed was signed under duress, and by Māori who “had every reason to fear Te Kooti”.[59] It also purported to bind non‑signatories and there were irregularities covered up by officials which breached the Crown’s obligations of good faith. The processes then followed through the Poverty Bay Commission and the Native Land Court allowed customary title to be transformed into Crown‑derived titles. The Mangatū lands were subject to the deed of cession, but in 1873 the lands were returned to the Māori owners.[60] The Tribunal nevertheless held that “[t]he deed of cession was part of the Crown’s ongoing efforts to overthrow Māori autonomy and rangatiratanga” and accordingly the Treaty breaches related to both Mangatū 1 and Mangatū 2 under s 8HB.[61]
[58]See at 99–104.
[59]At 101, citing 2004 Report, vol 1, above n 19, at 267.
[60]At 103.
[61]At 104.
(c)The breaches associated with the process of land alienation by the Poverty Bay Commission that occurred between 1869 and 1873 were then addressed.[62] The Commission was “the Crown’s first titling body in Tūranga”.[63] It adjudicated on whether Māori had been loyal and accordingly entitled to ceded land. The process was neither fair nor transparent. The Crown acted improperly “in empowering the Commission to usurp the role of the ordinary Courts by identifying ‘rebels’ and confiscating their lands without due process”.[64] Titles were also issued to Māori in the form of joint tenancies in a way that could cause considerable problems for customary landowners. This was a breach of the duty of good faith. Wi Pere sought to avoid the impacts of individualisation by proposing land holders hold title by a trust, but this was rejected, at least initially. Ultimately the Poverty Bay Land Titles Act 1874 was enacted to regularise the Commission’s allocations. This further excluded the exercise of tino rangatiratanga by iwi. The Tribunal held that whilst the CFL lands were returned in 1873, the subsequent alienation by Māori of Mangatū 2 to private purchasers, and the vesting of Mangatū 1 in trustees by the mid-1890s, established to its satisfaction that the Treaty breaches surrounding the Poverty Bay Commission related to both Mangatū 1 and Mangatū 2.[65]
(d)The Treaty breaches associated with the Native Land Court regime were also held to relate to Mangatū 1 and Mangatū 2.[66] The very concept of individual legal title was inconsistent with the relationship between Māori and their customary lands, with common law rights limited to alienation of individual shares in blocks. The Tribunal found that the system constrained choice and community decision-making, and consequently it was “unquestionably designed to force sales”.[67] Court sittings were often far from the homes of affected Māori and costs of transforming titles were high such that there was an “unbearable statutory pressure to sell”.[68] There were also constant changes in Crown rules and policies, including the subdivision rules reversing three times. The low prices and high costs did not enable Māori to make alternative investment. The Native Land Court’s approach to succession also involved Treaty breaches. As a consequence, most of the tribal estate passed from the control of iwi by 1900. The individualisation and fragmentation of interests was reflected in relation to the two blocks:
(i)Mangatū 2 “was subdivided into 16 blocks of different acreages in 1888”, and over a 10-year period a private purchaser acquired much of Mangatū 2 through 106 purchase deeds.[69]
(ii)Mangatū 1 was saved from a similar fate, however. Wi Pere persuaded the Court to issue a certificate of title to a group of 12 owners. He then persuaded the House of Representatives to pass the Mangatu No 1 Empowering Act 1893, contemplating ownership by the Mangatu Incorporation. Individual shares of the Mangatu Incorporation could not be sold. But following Wi Pere’s death in 1915, the power of the trustees was nevertheless vested in the East Coast Commissioner. The Commissioner recommended the appointment of new trustees, but the Crown placed the land under the Commissioner’s control until 1947. During this period, customary owners were not able to exercise rangatiratanga over these lands, although Mangatū 1 was subsequently returned to their control (as will be described below).
Notwithstanding the differences between Mangatū 1 and Mangatū 2, the Tribunal concluded that the Treaty breaches associated with the Native Land Court related to both blocks.[70]
(e)Further breaches surrounding the Native Land Court’s Mangatū title determination of the Ngāriki/Ngā Ariki Kaipūtahi’s claim were also found to relate to Mangatū 1 and Mangatū 2.[71] Wi Pere’s success in relation to Mangatū 1 meant that the Native Land Court’s title determination had little immediate effect. But following his death in 1915, attempts began to divide the title. The Native Land Court was then involved in ascertaining and determining title. Arguments were made by the landowners before the Court about tikanga. Te Whānau a Taupara — another iwi in the region — petitioned both the Native Land Court, and then Parliament, claiming an interest in Mangatū 1, and requesting legislation allowing that Court to ascertain their interest in Mangatū 1 and another block.[72] The Court then held that they were entitled to a large award.[73] The Tribunal found this involved Treaty breaches to Ngāriki/Ngā Ariki Kaipūtahi as they were excluded from those proceedings. The Tribunal held that both the processes of the Court, and the legislative intervention, involved breaches that were clearly related to the Mangatū lands.[74] This was so notwithstanding that Mangatū 1 was returned to Māori ownership in 1947.
(f)Additional qualifying breaches were found in relation to the activities of the Tūranga trusts between 1878 and 1955.[75] These trusts were Wi Pere’s first efforts to promote Māori development of Māori land and thus protect lands from alienation. Tūranga Māori “vested over 70,000 acres of their land in various trusts”.[76] But the Crown’s initial failing to support the trusts, or to support them when they had financial difficulties, resulted in the loss of tens of thousands of acres of land. A company — the New Zealand Native Land Settlement Company — was also established, but it too failed. The Tribunal noted the view that this was not the Crown’s responsibility, but it found that Tūranga Māori would not have been exposed to the risk involved in this company without the Crown’s prior Treaty breaches. The company’s land was sold under mortgagee sales and a new trust established, but it also encountered difficulties, with the Crown’s omission to intervene involving a breach of the duty of active protection. Some of the remaining land was managed by a board of three Pākehā businessmen, with some further land sales, and the remaining stake was transferred to the East Coast Commissioner in 1906. The Commissioner was able to return some lands to the descendants of the original owners. Mangatū 1 was not involved in this series of events, however, as in 1941 Wi Haronga successfully petitioned Parliament to have Mangatū 1, Mangatū 3 and Mangatū 4 “incorporated and returned to Māori control”.[77] This happened with the passage of the Maori Purposes Act 1947. Nevertheless, this background involved multiple Treaty breaches, which related to Mangatū 1 even though it was not part of this process. The Tribunal held it would be wholly artificial to find that they did not relate to Mangatū 1.[78] Mangatū 2 was not associated with these events given it had earlier been sold to private landowners.
(g)Finally, the breaches associated with the Mangatū afforestation and the Crown’s 1961 acquisition of Mangatū 1 were held to be qualifying breaches.[79] Only a decade after the land had been returned to Māori control, the Crown considered the need to acquire land for afforestation purposes. There had been large-scale land clearances leading to rapid erosion and severe floods in the 1930s and 1940s causing damage to the flat lands at Tūranga. In 1955 an expert panel recommended that some land held by the Mangatu Incorporation be afforested, but remain in its ownership with an agreement reached with the Crown for afforestation. The Māori owners wanted such an arrangement and did not want to sell the land . The Crown itself did not, however, seriously consider such arrangements, and the Tribunal held that it failed to disclose to the Māori owners its intention to establish a commercially productive forest on at least part of the land. The Tribunal concluded that when the owners eventually agreed to sell the land to the Crown in 1961, one of the reasons why they did so is because they believed “their lands would no longer be profitable if they retained them”.[80] The 1961 deed of sale for 8,522 acres was for a price of £80,958. The Tribunal made no findings as to whether that amount was a fair price. The Tribunal noted the uncertainty about the ability to establish commercial forests on the land, but it found that the Crown failed to act reasonably and in the utmost good faith during the sale process, including by not considering reasonable alternatives. In any event, these breaches led to the owners becoming separated from their ancestral land in breach of the Treaty.[81]
[62]See at 104–108.
[63]At 104.
[64]At 105.
[65]At 108.
[66]At 108–119.
[67]At 111, citing Waitangi Tribunal Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims (Wai 814, 2004) vol 2 [2004 Report, vol 2] at 527.
[68]2021 Remedies Report, above n 5, at 111, citing 2004 Report, vol 2, above n 67, at 536.
[69]2021 Remedies Report, above n 5, at 113.
[70]At 119.
[71]At 119–123.
[72]See Native Land Amendment and Native Land Claims Adjustment Act 1917.
[73]2021 Remedies Report, above n 5, at 123.
[74]At 123.
[75]See at 123–133.
[76]At 124.
[77]At 130.
[78]At 132.
[79]At 133–141.
[80]At 136.
[81]At 140.
The above is only a summary of the Tribunal’s very detailed findings, which the Tribunal itself later summarised.[82] All these breaches were found to meet the statutory requirements.
[82]At 141–147.
The Tribunal also addressed the approach to the second stage of the inquiry contemplated by s 8HB — that is, whether the land should be returned to compensate for, or remove, the prejudice caused by the breach. On this issue the Tribunal adopted what it described as a “restorative approach”.[83] The Tribunal said:[84]
[10] … the Tribunal should consider the prejudice suffered by the customary owners of the Mangatū CFL land, including the prejudice associated with the Crown’s wider Treaty breaches that are related to the loss of the CFL lands. In adopting this approach, the Tribunal could 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, and in other lands within their rohe on which they also depended. In our view, this interpretation has a broader application in circumstances where the claimants hold mana whenua in the land sought for return, and their rights in that land were impacted by multiple Treaty breaches. It allows the Tribunal to consider the prejudice associated with the loss of the Mangatū lands within the context of the wider experiences of Crown Treaty breaches of the Māori people and communities — experiences which relate to their interests in the CFL land, but occurred outside of the boundaries of the block. We consider that this interpretation is entirely consistent with the High Courts statements at paragraph 87 of the Mercury judgment which emphasise that “the further aspects of the remedial jurisdiction should not be interpreted narrowly”.
[83]At 156–157.
[84]At 152 (footnote omitted; emphasis in original).
The Tribunal explained the broad approach, saying:[85]
[23] In our view, the Tribunal’s restorative approach to remedies requires a 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. …
[85]At 157.
These themes were then developed in further detail when the Tribunal went on to assess whether the land should be returned. The Tribunal said:[86]
[170] But having reviewed all the evidence, we are satisfied that the clear picture we have been given of severe and lasting socio-economic prejudice — if not entirely due to the Crown’s Treaty breaches discussed in this report — is nevertheless due to a significant extent to the political and economic prejudice suffered by Te Aitanga a Māhaki, Ngāriki/Ngā Ariki Kaipūtahi, and Te Whānau a Kai. …
[171] These inequities, across many areas of social and economic life, have persisted throughout the generations and remain today. Unremedied, they will continue to affect the lives of future generations to the same degree.
Arguments
[86]At 210.
The Crown argued that the Tribunal misinterpreted the provisions in adopting this approach. It argued that the resumption provisions created a comprehensive negotiated scheme protecting Māori claims to state forest land while enabling the Crown to sell forest assets.
The Crown submitted that the statutory scheme was properly described by the Supreme Court in Haronga, and this Court in Attorney-General v Haronga. The Tribunal acts as a clearing house to adjudicate claims against Crown title.[87] The 2021 Remedies Report misapplied the provisions. The Tribunal’s decision meant that land was being returned as redress for a wide range of historical events beyond the scope of the statutory scheme, driven mostly by the Tribunal’s view of the impacts of colonisation throughout the district and the claimant groups’ customary relationships to the land. The approach of the High Court in Mercury was not applied as it should have been. Section 8HB(1) requires that claims concern loss of title to the land. It is a specific remedy, not a general remedy for district-wide claims.
[87]Citing Attorney-General v Haronga, above n 24, at [59].
The Crown argued that the Supreme Court’s obiter observations in Wairarapa Moana were not consistent with the nature of the legislative scheme as described by the Supreme Court in Haronga, which is the binding decision.
The opposing respondents supported the analysis of the Tribunal and the High Court. The Supreme Court’s analysis of the provisions in Wairarapa Moana was correct and, if not binding, it is at least strongly persuasive to this Court. The events in the district form part of a “single cohesive story”, and there is “a close causal connection between the forceful imposition of the Crown’s authority over Māori land … and the ensuing widespread land alienation and impoverishment”.[88] The Crown’s approach was unsustainable and contrary to the statutory scheme of the TOWA. The resumption powers need to be understood in light of the historical claims context, with a full understanding of the facts and circumstances. Claims for Treaty breaches have been advanced on a thematic basis since 1987, and the language of s 8HB folded the resumption powers into the general s 6 jurisdiction. The relevant Treaty principles included the guarantee of tino rangatiratanga, good faith partnership and active protection. Removing the prejudice caused by those Treaty breaches includes the need to return to the land in light of the broader prejudice. The assessments require a broad and unquibbling approach.[89]
[88]Citing 2021 Remedies Report, above n 5, at 78–79.
[89]Citing Wairarapa Moana, above n 4, at [104] per Winkelmann CJ, Glazebrook and Williams JJ.
A narrower approach was contrary to the purpose of the 1989 Agreement. It was also contrary to tikanga — which does not involve a black and white analysis, but rather nuance and expert evaluation — whereby tangata whenua are “related to” the land through their whakapapa.[90] A hara,[91] in relation to the Treaty, requires utu,[92] a return, to restore the balance and achieve a state of ea,[93] such as through the return of customary lands. This wider approach is also consistent with the principles of whanaungatanga[94] and manaakitanga.[95]
[90]Whakapapa broadly refers to genealogy, connecting “all life … in ways that may reach beyond human ancestors”: Law Commission He Poutama (NZLC SP24, 2023) at [3.23]. It connects humans to Te Taiao, the natural world, “including land, water, climate and living beings”: Jayden Houghton Tikanga Māori and State Law (Thomson Reuters, Wellington, 2025) at [2.1.1].
[91]Broadly translated as offending or being in violation of tapu: see Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [130] per Glazebrook J.
[92]Broadly translated as reciprocity and/or retribution: see R (CA219/2025) v R [2025] NZCA 470 at [40], n 33.
[93]Broadly translated as a state of resolution: see Ellis v R (Continuance), above n 91, at [135] per Glazebrook J.
[94]Broadly translated as kinship and maintaining relationships: see Ellis v R (Continuance), above n 91, at appendix 1, [96]–[99].
[95]Refers to “the duty of care people have to each other, the environment, mātauranga Māori, the past, the atua and to all things”: Law Commission, above n 90, at [3.120].
The Crown’s approach was also inconsistent with the principles of the 1989 Agreement as it would substantially devalue the Māori side of the bargain. The Crown’s real complaint was a policy preference for political settlements. The Crown cannot compel iwi to settle, and Treaty settlements and relative values are irrelevant to the assessment of statutory redress.[96]
The significance of the issue
[96]Citing Attorney-General v Haronga, above n 24, at [62], [69] and [73].
As I will explain in greater detail below, I consider that s 8HB concerns a category of Treaty breaches that relate to the loss of the land that is sought to be returned, and the more directly related they are to the loss of the land, the more relevant they will be for the claim for resumption. That is different to the approach of the High Court and the Tribunal. It is also different from the approach of Courtney and Ellis JJ. But I observe from the outset that I am unconvinced that the differences in approach will mean that resumption cannot be awarded in relation to the applications that the Tribunal granted, or that it will lead to an unduly narrow approach to the power to order resumption in other cases. I also consider that the differences between Courtney and Ellis JJ and me may be more a matter of emphasis than substance.
I consider that this point is of importance as the difference between the approaches may not be as significant as it may first seem, at least from a practical point of view.[97] Grice J made a similar observation in the judgment under appeal.[98] I nevertheless consider that the provisions contemplate a narrower approach than that adopted by the Tribunal and the High Court. Most significantly, I consider that resumption is not available when there was no Treaty breach involved in the Crown’s acquisition of the land, such as when there were open dealings in good faith with the Māori owners and a fair price paid. On the Tribunal’s interpretation, this land could nevertheless be returned to compensate for other breaches. In my view, the provision does not create an additional discretionary power vested in the Tribunal to use to compensate for other area-wide prejudice. An error of law accordingly arises.
Text and purpose of the provisions
[97]When asked, I understood Ms Feint KC for Māhaki and the Mangatu Incorporation to suggest that the primary practical implications arose in relation to compensation. But I do not agree that the compensation provisions relate to the interpretation of the resumption power for the reasons addressed at [124] to [133] below.
[98]Judgment under appeal, above n 1, at [134].
I begin by explaining my view of the text of the enactment in light of its purpose and context.[99] Looking at the provisions generally, and with reference to specific machinery in the legislation, I consider that they show that Parliament intended for the jurisdiction to act only on certain categories of breach, and the jurisdiction was not intended to be used to compensate for more general Treaty breaches by the Crown.
[99]Legislation Act 2019, s 10(1). See also Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22]; and Four Midwives v Minister for COVID-19 Response [2021] NZHC 3064, [2022] 2 NZLR 65 at [23].
The background to the enactment of the provisions has been described in detail in the earlier judgments,[100] and in the judgment of Courtney and Ellis JJ.[101] It is significant that the adjudicative remedy for both SOE land inserted in 1988 by the TOW State Enterprises Act, and then Crown forestry assets land inserted in 1989 by the CFAA, are exceptions to the Tribunal’s usual recommendatory jurisdiction. It is also applicable only to the specific land that the Crown wished to deal with as part of its state asset sales programme.[102] It is accordingly limited to particular land.
[100]See, for example, Haronga, above n 2, at [56]–[77].
[101]See below at [248]–[284].
[102]Land that could be subject to resumption is not limited to what was designated CFL land as at the time of these asset sales.
As a consequence of the agreements which the legislation implemented, the Crown could proceed with its state asset sales programme, including the forest assets on the land, but in return the legislation empowers the Tribunal to make adjudicative decisions in relation to this land.[103] That power arises when the Tribunal finds that the land should be returned to remove or compensate for the prejudice arising from well‑founded claims relating to that land.[104]
[103]See Crown Forest Assets Act, long title; and Haronga, above n 2, at [76] per Elias CJ, Blanchard, Tipping and McGrath JJ.
[104]Treaty of Waitangi Act, s 8HB(1)(a).
The overall role of this more particular jurisdiction is reflected in the wording of the provisions. The requirement that a claim be “well-founded” picks up the wording of s 6 in the 1975 version of the TOWA, and essentially means that the claimed Treaty breach must be upheld. I do not see significance in the use of the word “claim” for this reason. Section 8HB then requires that the breach “relates to” the land which is the subject of the claim. I consider this to be significant — Parliament clearly had a purpose in requiring the breach to relate to the land in question. It is not a remedy for all well-founded claims. The Tribunal must then find that “the return to Māori ownership of the whole or part of that land” should occur “to compensate for or remove the prejudice caused” by the breach related to that land.[105] As I said in Mercury, “[t]he three concepts — ‘well-founded’ claims, ‘relates to’, and ‘return’ — are inherently interlinked”.[106] The fact that resumption is granted to “compensate for or remove the prejudice caused” by the breach is similarly interlinked. The words need to be read together to identify their proper meaning. Returning the land could realistically only “remove” the prejudice caused if the prejudice arose from its loss. Whilst return to “compensate for” the prejudice is potentially wider, it may well be that return does not fully remove the prejudice, including because of the period of time when the land was not in Māori ownership.
[105]Treaty of Waitangi Act, s 8HB(1)(a)(ii).
[106]Mercury, above n 3, at [70].
The natural reading of the words, when read together, is that the jurisdiction to order the return to Māori ownership provides a remedy for the loss of that ownership. That is why it should be returned. This identifies the well-founded claim, in relation to the land, that is to be remedied. It is a remedy which allows Māori to resume the ownership that was formally exercised. By definition, the remedy is only available when land is no longer in Māori ownership, and for that reason I do not consider it exists to remedy breaches that are not associated with the loss of that ownership.
But I accept that the words of the section contemplate indirect links, so breaches that are indirectly associated with the loss of the land qualify. That follows from the use of the words “relates to”, which contemplate a less direct association between the breaches and the land. Those words should not be given an unduly narrow interpretation. I also consider that this gives rise to a remoteness analysis — the more closely connected the breaches are to the loss of the land, the more relevant they will be to its potential return. There will be wider Treaty breaches that cannot be said to relate to the loss of the land at all, and which will not be relevant to the resumption remedy.
This approach involves a departure from my analysis in Mercury both in terms of the breaches that fall within s 8HB, and also what may be taken into account when deciding whether the remedy should be granted. But the provisions still essentially create a restitutionary remedy for this category of land claim. As Baragwanath J said in Attorney-General v Mair, it is a regime that involves “special provisions which make the Tribunal the judge of whether land wrongly taken should be returned”.[107] In my view, s 8HB is not establishing an additional remedial power for the Tribunal to order the transfer of Crown land to Māori as compensation for the prejudice caused by other Treaty breaches affecting the iwi, or Māori in the district more broadly, with the relevant connection depending on whether the claimants can identify some relationship to the land.
[107]Attorney-General v Mair [2009] NZCA 625 at [106]. This is subject to my view that claims indirectly contributing to the loss of the land also fall within the section.
I consider that Parliament intended the remedy to only be available for particular Treaty claims — those that challenged the Crown’s title to the land it wished to deal with (here, by granting forestry rights). Preventing such dealings was the point of the Lands and Forests decisions, and the agreements reached which established the resumption regime were based around the claims to the property being transferred. It ensured the remedy of return of the land remained, together with compensation associated with the grant of the forestry licences over the land. It was not to address all of the Treaty claims affecting the iwi, and it was not a vehicle to provide a remedy for wider breaches.
Notwithstanding the observations by the majority in Wairarapa Moana, I see some support for this interpretation in the 1989 Agreement which led to the enactment of the CFAA.[108] The 1989 Agreement is referred to in the CFAA.[109] That agreement included an obligation for its terms to be reflected in legislation. Clause 15 of the 1989 Agreement referred to the list of the main principles of each of the parties in negotiating the 1989 Agreement. The second of the three principles identified by the Māori parties was to “minimise the alienation of property which rightly belongs to Maori”. The property here would involve not just the land, but also the licence to conduct forestry activities over the land with which the Crown was transacting.
[108]See Wairarapa Moana, above n 4, at [103], n 119.
[109]Crown Forest Assets Act, sch 1, cl 6(b).
I see this principle as consistent with the interpretation I have identified, and note that it was similarly seen by the majority of the Supreme Court in Haronga, and subsequently by this Court, as guiding the interpretation.[110] I do not accept the argument of Ms Feint KC that this principle was referring only to the claims for Māori customary land, not resumption claims.[111] As one of the three main principles for Māori in entering to the 1989 Agreement leading to this regime, it more naturally refers to the property which was to be the subject of the resumption jurisdiction. Nor do I read the other two principles put forward by the Māori parties as inconsistent with this inference — requiring the land to be returned upholds the Treaty and it optimises the economic position of Māori through the return of productive forestry land with accompanying compensation.
[110]Haronga, above n 2, at [88]; Attorney-General v Haronga, above n 24, at [57]–[59].
[111]The subsequent deed of clarification of 17 October 1989 excluded Māori customary land from the regime, but this deed did not say that the second principle was addressed to customary land. The principle also refers to “property” and not “land”, which appears to contemplate the forestry licences.
Other terms of the 1989 Agreement also suggest that the resumption remedy was focused on the challenge to the Crown’s title based on Treaty breaches. The Agreement relevantly provided:[112]
6.The Crown and Maori agree that they will jointly use their best endeavours to enable the Waitangi Tribunal to identify and process all claims relating to forestry lands and to make recommendations within the shortest reasonable period.
7.If the Waitangi Tribunal recommends that land is no longer subject to resumption, the Crown’s ownership and related rights are confirmed.
8.If the Waitangi Tribunal recommends the return of land to Maori ownership the Crown will transfer the land to the successful claimant together with the Crown’s rights and obligations in respect of the land …
[112]Emphasis added.
I also see this as consistent with the earlier legislative provisions that introduced resumption for SOE land. The preamble to the TOW State Enterprises Act states:
(g)it is essential, in order to protect the position of Maori claimants and to ensure compliance with section 9 of the State-Owned Enterprises Act 1986, that there be safeguards—
(i)including power for the Waitangi Tribunal to make a binding recommendation for the return to Maori ownership of any land or interests in land transferred to State enterprises under that Act; and
(ii)requiring the Waitangi Tribunal to hear any claim relating to any such land or interests in land as if it or they had not been so transferred; and
(iii)precluding State enterprises and their successors in title from being heard by the Waitangi Tribunal on claims relating to land or interests in land so transferred …
This further contemplates more specific claims focused on challenges to Crown ownership of land that it was selling as part of the asset sales programme. The words “claim relating to any such land or interests in land” confirm that the focus is on the legitimacy of the Crown’s rights over that land.
The specific machinery of the provisions
I also accept the Attorney-General’s submissions that this more specific line of inquiry relating to the circumstances of the loss of ownership which warrants resumption is reflected in the more detailed statutory machinery.
First, under s 8HB(1)(b) and (c), the Tribunal can find that the claim in relation to the land is not well-founded, or that it is well-founded but the return to Māori ownership is not required. In those circumstances, the Tribunal can recommend to the Minister that the land no longer be liable to resumption. That would be so irrespective of the existence of wider Treaty breaches in the district. As this Court described it in Attorney-General v Haronga, the Tribunal “would act as a clearing house” in such circumstances.[113] I consider the inference to be drawn from this is that s 8HB deals with a more specific category of Treaty claims involving a challenge to the legitimacy of the Crown’s title to the land, and not Treaty claims affecting Māori in the district more broadly.
[113]Attorney-General v Haronga, above n 24, at [59].
Further, if a claim is upheld, under s 8HC an interim decision is made and a 90‑day period for negotiations is to apply which, if it does not lead to a resolution, means the interim decision becomes final.[114] These subsections contemplate a prompt and targeted line of inquiry where the land is either returned to Māori or cleared of such a claim. That is not consistent with the idea that the land remains available to provide remedies for wider Treaty breaches in the district as identified in a district‑wide inquiry. Settlement of such matters would not be able to be addressed within 90 days. Here, the District Inquiry took many years, with the extensive report published in 2004. The preliminary determination of the Tribunal, subject to the present challenges, was made in a detailed report of approximately 400 pages, which itself involved a process commencing in 2011, and recommenced after this Court’s decision in 2016, with the present report published in 2021. Inquiries of this kind are not consistent with the timeframes contemplated by the provisions.
[114]Treaty of Waitangi Act, s 8HC(6).
Similarly, s 8HB(2) directs the Tribunal not to take into account changes to the land that have taken place since the grant of Crown forestry licences when deciding whether to direct the return to Māori ownership. These considerations are specific to the land in question, and their express exclusion suggests that such considerations would otherwise have been relevant. It does not suggest that the inquiry is directed to the consequences of the district-wide breaches of the Treaty by the Crown, and their impacts on the iwi, or Māori more generally, as is contemplated by the broad interpretation.
There is also some support for this interpretation in the provisions concerning the compensation to be given on the return of the land. Schedule 1 of the CFAA directs that the compensation to be given on return of the land is to be based on the value of the forest on that land.[115] The Tribunal decides how that value is to be allocated as between the Crown and the recipient. As we will address in greater detail below, the compensation is not assessed on the basis of broader considerations such as the amount needed to remedy the consequences of the Crown’s district-wide Treaty breaches. I consider that this is an indicator of the purpose of the resumption regime overall: the compensation is limited to the value of the forest on the land being returned, which confirms that the focus is on the return of land lost as a consequence of Treaty breaches. The compensation is not based on addressing the wider impacts of Treaty breaches in the district.
[115]This is assessed either by reference to the market value of the trees, the market stumpage, or the net proceeds received by the Crown from the transfer of Crown forestry assets to which the land relates: see Crown Forest Assets Act, sch 1 cl 3(a)–(c).
Section 8HB(3) also directly addresses the interrelationship between resumption and the Tribunal’s broader s 6 jurisdiction. Given this case concerns how s 8HB fits with the jurisdiction given to the Tribunal in s 6, the fact the legislation directly addresses that question is significant. Section 8HB(3) essentially provides that the existence of the resumption jurisdiction does not prevent the Tribunal making other recommendations when claims relate wholly or partly to the licensed land. It also provides that the Tribunal can take into account any compensation awarded as part of the resumption when making such recommendations. Section 8HB(3) only refers to the compensation awarded, and not to the resumption of the land itself. So, resumption itself is not seen to be part of the remedy for wider prejudice. This provision also contemplates the adjudicative decision being made separately from the wider recommendatory jurisdiction, and prior to the wider recommendations being made. It is not consistent with the adjudicative jurisdiction being exercised to provide the remedy for the Treaty breaches in the district as a whole.
There is also some significance in the fact that licensed forestry land under the CFAA was to remain owned by the Crown.[116] The land was to be used for forestry purposes in the meantime.[117] So, the adjudicative jurisdiction in s 8HB is not directed to land leaving Crown ownership. Rather, it sets up a remedy for a more particular category of land claim — that is, a claim where the land is rightly owned by Māori and not the Crown, where the land is to be returned, and then compensation provided based on the fact that the Crown has granted forestry licences in the meantime.
[116]Section 35(1).
[117]The process whereby the licence is terminated was only initiated when recommendations under s 8HB(1)(a) of the Treaty of Waitangi Act to return the licensed land became final: see Crown Forest Assets Act, s 17(4).
I do not see significance in the fact that s 8A of the TOWA referred to the well‑founded claims relating “in whole or in part” to the land, or in these words not being in s 8HB. In my view, the reference to the claim relating “in whole or in part” to the land was simply recognising that the broader s 6 claims might only partly raise claims relating to the land where resumption could be ordered. This supports the view that resumption was only available for a subset of s 6 claims. I also do not consider the fact that these words were was not in s 8HA was intended to signify that the two sections had a different intended scope.
There is further support for this interpretation arising from the requirement in s 8HB(1)(a) that the Tribunal identify “the Maori or group of Maori to whom that land or that part of that land is to be returned”. That requires the Tribunal to identify the appropriate owners of the land, taking into account, no doubt, the identity of the Māori owners from whom it was acquired. It remains a broadly expressed power, and can involve a decision to return the land to other entities, such as an iwi entity rather than a more specific hapū, if that is appropriate. But it nevertheless contemplates a particular line of inquiry which I consider to be more consistent with the interpretation I prefer.
The Supreme Court addressed the requirement to identify the group to whom the land is returned, and the question of overlapping claims, in Haronga. The Court said:[118]
[106] The Crown stressed that there are overlapping claims in relation to the Mangatu forest. The Tribunal itself noted in its report that “Te Aitanga-a-Māhaki were directly affected” by the 1961 acquisition from Mangatu Incorporation, without however explaining the comment further. And the Tribunal also found that members of Ngariki Kaiputahi were prejudiced, in Treaty breach, by the vesting orders made in the Native Land Court in 1881 in respect of Mangatu No 1 Block, perhaps indicating that they have an interest in the forest for the purposes of redress which may conflict with the claim on behalf of Mangatu Incorporation. Section 8HB(1)(a) … specifically confers upon the Tribunal the “duty” (as the Practice Note of August 2007 rightly recognises it to be) of identifying “the Māori or group of Māori” to whom the land “is to be returned”. The language of s 8HB(1)(a) (“shall identify”) highlights that it is the obligation of the Tribunal to decide between competing claims once it has determined that the claim is “well-founded” and that the action to be taken to compensate for or remove the prejudice “should include the return to Māori ownership” of the land or part of it. The first condition is already made out by the finding in 2004 of the Tribunal in relation to the acquisition of 8,626 acres from Mangatu Incorporation in 1961. The second condition can only be fulfilled by the Waitangi Tribunal completing its inquiry, as the appellant seeks. But the obligation on the Tribunal to identify the Māori or group of Māori to whom land must return means that the possibility of overlapping interests cannot properly be used, as it was by Judge Clark and the Courts below, as a reason against the granting of an urgent remedies hearing for the proprietors of Mangatu Incorporation.
[107] If the Tribunal is of the view that the land should be returned, it has power under s 8HB to arrive at the outcome it thinks right. It may return part only of the land or specify the Māori or group of Māori to whom the 1961 lands or the balance of the Mangatu forest should be returned. Although compensation under sch 1 goes with the land, the Tribunal may recommend return with or without additional compensation and in any event may order terms or conditions. (It may be, for example, that some adjustment to any additional compensation or the imposition of terms or conditions is considered if the Tribunal finds that the price paid to Mangatu Incorporation in 1961 was fair.) The Tribunal has ample power to impose terms and conditions and to adjust interests if that seems necessary. An urgent hearing would not give the appellant “priority”, as the Court of Appeal feared. And other affected parties, such as those claiming to be affected by the 1881 Native Land Court determination, can be heard on the resumption claim.
[118]Haronga, above n 2 (footnote omitted).
I see this description of the process as consistent with the interpretation I prefer, and consider that it is inconsistent with that adopted by the Tribunal. It focuses on the 1961 acquisition, under which the Crown obtained title, as the breach providing jurisdiction to order resumption. It then explains how the competing claims based on other Treaty breaches can be addressed when deciding to whom the land should be returned.
The implications of the broad interpretation
I do not consider that the broad interpretation adopted by the Tribunal is consistent with the text, purpose, or context of the provisions more generally.
The broad interpretation does not require a connection between the Treaty breach and the loss of Māori ownership of the land, and the associated challenge to the Crown’s title. Rather, it would effectively make available an adjudicative remedy to be used by the Tribunal to address the broader prejudice revealed by its inquiries. On this approach, wider Treaty breaches which impact on Māori in the district more broadly could justify the resumption remedy being ordered. The land to which the applications relate may have been acquired from Māori without any Treaty breach. But the Crown’s other conduct in breach of the Treaty could justify resumption being ordered to compensate for the prejudice arising from such wider breaches. Those breaches need not be about the land in question. But they are treated as relating to the land, because the land was part of the land owned by Māori in the district when the wider Treaty breaches occurred, which seriously undermined tino rangatiratanga. Resumption is then ordered with the objective of providing compensation to affected Māori for all these associated Treaty breaches in the district.
I do not consider that this approach is consistent with the machinery that Parliament set out for resumption. There would be no point in the quite detailed provision setting out requirements for resumption if the point was more simply to give the Tribunal an adjudicative power to remedy wider prejudice caused by Treaty breaches. I also consider that the lines of inquiry followed by the Tribunal in adopting the broad approach are beyond that contemplated by the provisions. On this approach, the land that is subject to the regime becomes an asset to use to provide compensation for the Crown’s wider Treaty breaches. It becomes a “land bank” for Treaty claims. I do not consider this to be consistent with the requirements for resumption.
I recognise that the concept of providing “land in lieu” was a concern of Māori, as evidenced by the reference to this concept in Lands.[119] But I see this as having limited ultimate relevance. As Courtney and Ellis JJ explain, a land in lieu approach appears to have been expressly raised, but not accepted when the TOW State Enterprises Act was enacted.[120] Moreover, both sides had objectives in the period leading up to the ultimate compromise that they reached, and it is the compromise they actually reached that was reflected in the legislation. I do not consider that the provisions established a land in lieu jurisdiction, or a remedy available for wider breaches identified in a s 6 inquiry.
[119]Lands case, above n 10, at 684 per Richardson J.
[120]See at [270]–[273].
If a broader approach of this kind were correct, it would also be necessary for the Tribunal to address the other remedies available for area-wide breaches. For example, it would likely be necessary to establish whether there were any other resumption applications for other land in the same district. Only then would the Tribunal be able to address which of them should be granted to address the prejudice involved, and to whom the land should be given. It would also suggest that all applications for resumption in the district would need to be addressed together. It may also need to consider what was being proposed by way of Treaty settlement to address the wider prejudice. I do not see that as consistent with how Parliament said the resumption remedy would affect the wider remedial jurisdiction, including in s 8HB(3).
The resumption jurisdiction forms only part of the processes for providing redress for Treaty breaches, albeit an important part. The jurisdiction is limited to the issues arising from the land the Crown wished to deal with as part of its asset sales process in 1988 and 1989. If the provisions were intended to authorise resumption for Treaty breaches that are not more directly associated with the ownership of the forests land, and the Crown’s right to deal with that land, it also becomes unclear what kind of connection would be sufficient. Parliament had a purpose in requiring the eligible claims for return of the land to relate to that land. But on the Tribunal’s approach, any well‑founded claim could be seen as related to the land in the more general sense it explained.
It also becomes less clear to whom resumption could legitimately be ordered. The Tribunal engages in district inquiry processes. These tend to be inquiries into claims made by iwi and associated hapū, although in Tūranga the groupings are more complex. On the broader interpretation, a qualifying breach may not need to be one concerning members of the same group, or even the same iwi. I acknowledge that the Tribunal identified a requirement that the claimant have a “relationship to” the land, such as by mana whenua.[121] That creates a limiting link. But that link is not found in the language of the provisions — as expressed by the Tribunal, it is not whether the well-founded claim relates to the land, but whether the claimant relates to the land. Moreover, on the Tribunal’s approach, any person would have a qualifying well‑founded claim under the provisions if they could whakapapa back to Māori in Tūranga. Even then the link may not be a very clear one. Breaches of some Treaty principles, such as the duty of active protection, can reasonably be said to apply to all Māori. Such breaches could be said to relate to the land in the more general sense because the Crown’s widespread breach of such Treaty principles has led to the loss of land ownership and tino rangatiratanga by Māori throughout the country, including the land in question. For example, the imposition of common law title and the role of the Native Land Court is an issue that affected customary ownership across the whole country. To which lands do these breaches relate to? There are further complications. In the present case the relevant resumption lands span the border of two inquiry districts, yet only the Tūranga district Treaty breaches were addressed by the Tribunal.
[121]2021 Remedies Report, above n 5, at 75. However, such an approach may not be fully consistent with Wairarapa Moana: see Wairarapa Moana, above n 4, including at [104] per Winkelmann CJ, Glazebrook and Williams JJ.
The likely consequence of the broader approach is that almost all resumption land would be returned to Māori as compensation for wider Treaty breaches. And, if a restorative approach of the kind the Tribunal identified is required, resumption would be close to automatic in relation to all resumption land, given the impacts of colonisation, with the only real issue for the Tribunal being the particular iwi or hapū group or entity to whom the land should be vested.
For these reasons, I see the interpretation adopted by the Tribunal as inconsistent with the text, purpose, and context of these provisions.
The approach in Haronga and Wairarapa Moana
I accept that the approach I prefer is not consistent with the observations made by the Supreme Court in Wairarapa Moana in relation to the approach I applied in Mercury. But the Supreme Court made it clear that they were not expressing concluded views,[122] and the view I have reached is not the same as that outlined in Mercury. Moreover, I consider we are required to take into account, and indeed apply, the Supreme Court’s earlier decision in Haronga.[123]
[122]Wairarapa Moana, above n 4, at [106] per Winkelmann CJ, Glazebrook and Williams JJ.
[123]This Court’s earlier judgment in Attorney-General v Haronga, above n 24, is also effectively binding on us. The limited grounds for departing from an earlier decision are not established: see R v Chilton [2006] 2 NZLR 341 (CA) at [83]–[100]; and Singh v Police [2021] NZCA 91, (2021) 29 CRNZ 665 at [13]–[17].
The majority in Wairarapa Moana emphasised that the two regimes involving resumption had been folded into the Tribunal’s general jurisdiction under s 6, and that had it been intended that there would be a new process, more akin to orthodox litigation, the provisions could have been expected to be in different terms.[124] They explained that even in 1988, claims were advanced tribally “on a thematic, rohe-wide basis”.[125] Treaty breaches were known to include colonial policies which had impacts on all lands in a rohe irrespective of the mode of loss.[126] This meant it would be “completely impractical to adopt a purely transactional approach” which “would likely have undermined the important social objective” of the TOWA.[127] The resumption power to compensate for, or remove, prejudice, needed to be understood against that background.[128] I accept that these observations are generally consistent with the approach adopted by the Tribunal and High Court, and that they support the respondents’ arguments.
[124]Wairarapa Moana, above n 4, at [103].
[125]At [100(a)].
[126]At [100(b) and (c)].
[127]At [100(d)].
[128]At [100(e)].
In August 1988 the Forestry Working Group (FWG) was established to advise the Government on the sale. It was charged with determining (1) whether the assets should be transferred to the Forestry Corporation and the Corporation itself then sold, or the assets be sold individually and (2) whether the land itself or some form of use right should be sold. The guidelines given to the FWG also required it to consider the Treaty of Waitangi implications of any proposal.
The FWG’s report emphasised the importance of security of tenure to forestry companies. The resumption regime in ss 8A–8H was contrary to this and legal advice to the FWG indicated a recommendation for return would include the land, trees and associated rights. Despite the availability of compensation under the Public Works Act 1981,[324] it was feared that the sale price of the forestry land would be significantly discounted because of “[buyers’] perceptions of the risk of resumption and of the adequacy of compensation”.[325] The FWG believed the discount would be “significant enough to affect whether it is worthwhile selling some of the Crown’s commercial forestry assets”. It therefore recommended initiating negotiations with Māori, with a view to the land remaining in Crown ownership (rather than being transferred to the Forestry Corporation), with management and cutting rights sold for specified terms. Land could then be returned to Māori upon a recommendation of the Tribunal, albeit subject to the forestry right for the rest of its term.
[324]State-Owned Enterprises Act, s 27C.
[325]A later memorandum provided by the Minister for SOEs to the Cabinet State Agencies Committee records that the expected discount if sales proceeded with the land subject to ss 8A–8H was approximately 20 per cent: Memorandum for Cabinet State Agencies Committee Report on Consultations between Officials and Maori Representatives: The Treaty of Waitangi and the Forestry Sale (28 June 1989) at [24]. It is convenient at this point to note, in relation to this memorandum and other aspects of the material referenced in the affidavits before us, the reservations about the use of Cabinet materials and other non-parliamentary materials in statutory interpretation previously expressed by this Court: Skycity Auckland Ltd v Gambling Commission [2007] NZCA 407, [2008] 2 NZLR 182 at [39]–[42]; Adlam v Accident Compensation Corporation [2017] NZCA 457, [2018] 2 NZLR 102 at [30], n 24; and Attorney-General v Fleming [2024] NZCA 92, [2024] 2 NZLR 245 at [191], n 194. However, in respect of the 20 per cent discount figure, see also (27 July 1989) 499 NZPD 11626.
A decision was therefore made not to transfer the land to the Forestry Corporation, but instead to transfer the forestry assets (including the trees) to commercial forestry operators along with licences to the land. The Crown was clearly motivated to maximise the possible return on the sale of forestry land. A letter sent on 13 January 1989 by the Minister for SOEs to Māori groups ahead of a national hui encapsulates the Crown’s thinking:[326]
I state again the Crown’s basic dilemma. On the one hand we realise that there are Maori claims about breaches of the Treaty of Waitangi that involve much of the Crown’s afforested land. If these claims are found to be valid, return of the afforested land may be an appropriate method of compensation.
On the other hand, the Government’s policy is to sell the Crown’s commercial forestry assets to pay off some of the enormous debt we inherited from previous governments. In addition we believe that such sales will directly contribute to the growth and development of New Zealand’s forestry industry. If purchasers are not guaranteed security from resumption of their forestry rights there will be two seriously negative effects. First, Government and taxpayers will not gain the true value of the resource as purchasers will discount their bids because of uncertainty. Second, purchasers will not be prepared to make the investments in New Zealand’s forestry industry that could otherwise generate many jobs and economic activity.
…
The Crown believes the approach proposed by the Forestry Working Group above balances the interests of Maori claimants and potential purchasers to the benefit of New Zealand overall. However, as I stressed in my last letter, we wish to discuss these ideas with you in good faith as Treaty partners. The hui is the first step in that process.
[326]As quoted in the Forests case, above n 10, at 150–151.
That hui, attended by various Māori groups, Ministers and officials, was held on 20 January 1989. Aspects of Māori thinking about this new plan can be seen from a file note made following that hui by Paul Quinn, who attended as Executive Director of the New Zealand Forest Industries Council Inc.[327] The file note recorded Māori disappointment with the proposal because, although the land would be retained by the Crown, any return of it would be subject to the encumbrance of forestry licences.[328] The Minister for SOEs said the decision to sell the Crown’s commercial forestry assets was irreversible. The file note recorded disappointment from Māori that the proposed course was being presented as a fait accompli.[329]
[327]At the time Mr Quinn was employed by a forestry company, which asked him to coordinate advocacy input for the New Zealand forestry industry following the 1988 Budget announcement that the Government intended to sell its commercial forestry assets. That advocacy work took place under the umbrella of the New Zealand Forest Industries Council Inc and its New Zealand Forest Industries Working Group, which Mr Quinn coordinated. Mr Quinn made submissions to the Forestry Working Group and met regularly with officials. Later, he was also one of the Māori negotiators for the 1989 Agreement. Mr Quinn provided evidence to the Tribunal.
[328]Although not expressly recorded in this file note, it may be observed that, had the proposal to sell the forestry assets without transferring the land been implemented (without more) the land would not have been subject to the ss 8A–8H resumption regime at all, because it would have remained in Crown ownership.
[329]That disappointment was also noted in the Forests case, above n 14, at 152.
Māori therefore returned to this Court pursuant to leave reserved in Lands. The result was the decision in Forests. In accepting that the issue relating to forest assets fell within the scope of the leave reserved, the Court observed that the Crown was using or proposing to use an SOE — the Forestry Corporation— as a medium for selling forests to third parties and, had that development been known at the time of Lands, the declarations granted could well have been worded differently.[330] Beyond concluding there was no procedural bar to the application, this Court thought it best to say no more, “hoping that it will be resolved in the spirit of partnership and in accordance with the principles of the Treaty”.[331]
[330]At 151–152.
[331]At 152–153.
Subsequent negotiations over how to deal with forestry assets resulted in agreement that the Crown could sell its commercial forestry assets and licences, but any recommendation by the Tribunal that CFL land be returned to Māori would be binding and the Crown would pay compensation to the successful claimant (the 1989 Agreement). Annexed to the 1989 Agreement were the “main principles of the two parties within under which this Agreement has been negotiated”. These principles were:
Maori Principles
(i)uphold the articles of the Treaty of Waitangi and the protections in current legislation;
(ii)minimise the alienation of property which rightly belongs to Maori;
(iii)optimise the economic position of Maori.
Crown Principles
(i)to safeguard the integrity of the sale by guaranteeing security of tenure to purchasers to avoid discounting and to encourage investment in the forestry industry
- security of tenure must involve purchasers having guaranteed access to wood and sufficient control over forest management to assure that wood supply;
(ii)honour the principles of the Treaty of Waitangi by adequately securing the position of claimants relying on the Treaty
- adequately securing the claimant’s position must involve the ability to compensate for loss once the claim is successful.
Section 8HB and the Crown Forest Assets Act
Section 8HB was enacted on 25 October 1989.[332] It provides that:
[332]Crown Forest Assets Act, s 40.
8HBRecommendations 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 … act or omission that was inconsistent with the principles of the Treaty of Waitangi, should include the return to Maori 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 Maori ownership (which recommendation shall be on such terms and conditions as the Tribunal considers appropriate and shall identify the Maori or group of Maori to whom that land or that part of that land is to be returned); or
(b) if it finds—
(i) that the claim is well-founded; but
(ii)that a recommendation for return to Maori ownership is not required, in respect of that land or any part of that land by paragraph (a)(ii),—
recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land not be liable to return to Māori ownership; or
(c)if it finds that the claim is not well-founded, recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land not be liable to return to Maori ownership.
(2)In deciding whether to recommend the return to Maori 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.
(4)On the making of a recommendation for the return of any land to Maori ownership under subsection (1), sections 40 to 42 of the Public Works Act 1981 shall cease to apply in relation to that land.
We observe at this point that, although there is a small difference between the wording of the statutory thresholds in ss 8A and 8HB, we do not seem it as material. Section 8A(2) is engaged where a claim “submitted to the Tribunal under section 6 relates in whole or in part to land or an interest in land” to which the section applies, whereas s 8HB(1) omits the “in whole or in part”.[333] But given s 8HB(3) then refers to “any claim that relates in whole or in part to licensed land”, the omission of these words from subs (1) appears accidental.[334] Moreover, an interpretation of the threshold as encompassing claims under s 6 that relate in whole or in part to CFL land is an appropriate reflection of the expansive way in which historical claims are often made and determined.
[333]Emphasis added. Section 8HJ of the Treaty of Waitangi Act, which concerns land vested in the New Zealand Railways Corporation, is also engaged where a claim relates “in whole or in part” to relevant land. Section 8HJ was inserted on 28 August 1990 and essentially applies the ss 8A–8H regime to railways land.
[334]Emphasis added.
As under s 8A, recommendations made by the Tribunal under s 8HB(1)(a) or (b) are interim in the first instance.[335] There is provision for parties to offer to negotiate within 90 days following an interim recommendation and if a settlement is reached, the Tribunal may cancel or modify the interim recommendations or, if necessary, make a final recommendation.[336] If no settlement is reached, the interim recommendation becomes final.[337] The Tribunal may also clear the land from liability for return under ss 8HB(1)(b) or (c) or 8HE.[338]
[335]Sections 8B(1) and 8HC(1).
[336]Section 8HC(3)–(5).
[337]Section 8HC(6).
[338]Under s 8HE, the Tribunal has a “[s]pecial power” (not in issue in the present case) to recommend that land be cleared from liability for return to Māori ownership on application by the Crown or any licensee of Crown forest land.
The CFAA, which was enacted contemporaneously with ss 8HB–8HI, provides that once a recommendation under s 8HB that land be returned becomes final, the Crown is required to return the land to Māori in accordance with the recommendation and pay compensation as provided in sch 1 of the CFAA.[339] In addition:
(a)Part 2 of the CFAA permits the transfer of Crown forestry assets,[340] licensing of Crown forest land,[341] and provides for the establishment of a forestry rental trust, which collects and holds all licence fees until the Tribunal has made a recommendation in relation to the land under ss 8HB or 8HE.[342]
(b)Part 3 of the CFAA is directed towards the return of CFL land to Māori ownership and the payment of compensation. The Crown is precluded from selling or otherwise disposing of Crown forest land that is subject to a Crown forestry licence, except as provided for in s 8 of the Act.[343] Nor can it sell or otherwise dispose of any rights or interests in a Crown forestry licence unless the Tribunal has made a recommendation that CFL land is not liable for return.[344] Significantly, s 37 of the CFAA provides that where a recommendation has been made that CFL land is not liable for return, no further claim under s 6 of the TOWA can be made for the return of that land.[345]
[339]Crown Forest Assets Act, s 36(1).
[340]Section 11.
[341]Section 14.
[342]Section 34. The Crown Forestry Rental Trust (CFRT) was established by deed dated 30 April 1990, as provided for in the Forests Agreement. The Crown licenses the land in return for an annual rent, held by the CFRT. The interest earned from that investment is applied by the CFRT to “assist any Claimant in the preparation, presentation and negotiation of claims before the Waitangi Tribunal which involve, or could involve, Licensed Land” (per cl 9.2.2 of the CFRT deed). Who qualifies as a “Claimant” is determined by criteria set by the Trustees, in consultation with the New Zealand Māori Council, the Federation of Māori Authorities and the Crown (per cls 10.1(a) and 10.3). It is notable that the CFRT will only provide funding to a claimant to participate in: Waitangi Tribunal district inquiries; settlement negotiations with the Crown; or Waitangi Tribunal remedies hearings for binding recommendations for the resumption of CFL land: Ngā Kaitiaki Rēti Ngahere Karauna | Crown Forestry Rental Trust Crown Forestry Rental Trust Claimant Guide (May 2025) at 1.
[343]Crown Forest Assets Act, s 35(1).
[344]Section 35(2).
[345]Section 37(1). Subsection (2) also provides that a Minister may then declare, by notice in the Gazette, that once the land is no longer licensed it shall cease to be Crown forest land.
The power to order resumption in respect of CFL land was described in Haronga as “part of the negotiated solution reached between the Crown and Māori in their agreement, under which both parties gained something of value”.[346] The combined effect of ss 8HB–8HI and the CFAA is the creation of a resumption regime that is different from the regime governing SOE land. The forestry regime separates Crown forestry assets, including the forests and buildings on the land,[347] from the land, and permits the Crown to sell those assets.[348] It also permits the Crown to license significant amounts of land.[349] In return, Māori receive the twin benefits of binding recommendations as to resumption and monetary compensation payable by reference to a fixed formula. In the event the Tribunal orders that particular CFL land is to be returned to Māori ownership:
(a)the accumulated rentals associated with that land is paid to the successful claimants;[350]
(b)compensation for the fact of the encumbrances and the value of the trees is paid according to sch 1 of the CFAA;[351] and
(c)the right to future rental payments under the relevant licence are transferred to the claimants.[352]
The interpretation of s 8HB
[346]Haronga, above n 2, at [88] per Elias CJ, Blanchard, Tipping and McGrath JJ.
[347]Crown Forest Assets Act, s 2(1) definition of “Crown forestry assets”.
[348]Section 11.
[349]Section 14.
[350]Section 34(2) of the Crown Forest Assets Act provides that all licence fees are held by the CFRT. Clause 11.1(b) of the CFRT deed provides that if return of CFL land is recommended under s 8HB(1)(a) of the Treaty of Waitangi Act, the recipients are entitled to receive from the capital of the CFRT the accumulated rentals received by the CFRT in respect of that land since the commencement of the licence.
[351]Crown Forest Assets Act, s 36(1)(b).
[352]See cl 11.1(c) of the CFRT deed. If the Waitangi Tribunal orders that land it is not liable to be returned, the inverse process occurs instead. The Crown gets paid the accumulated capital from the CFRT, maintains ownership of the land and maintains ownership of the rights to rental payments from the licensee: see cl 11.2 of the CFRT deed.
We turn to the interpretation of s 8HB against the context as we have described it. The interpretation of s 8HB must reflect the fact that the TOWA is a remedial Act. It has long been accepted that statutes concerning the Treaty require — in the often-cited phrase from Tainui Maori Trust Board v Attorney-General — “a broad, unquibbling and practical interpretation”.[353]
[353]Tainui Maori Trust Board v Attorney-General, above n 135, at 518.
For convenience we set out s 8HB(1)(a) again:
(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 … act or omission that was inconsistent with the principles of the Treaty of Waitangi, should include the return to Maori 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 Maori ownership (which recommendation shall be on such terms and conditions as the Tribunal considers appropriate and shall identify the Maori or group of Maori to whom that land or that part of that land is to be returned) …
On a straightforward reading of s 8HB(1)(a), a recommendation for resumption may be made when:
(a)the claim under s 6 relates to the CFL land;[354]
(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 whom the land should be returned are identified as appropriate for that purpose.[355]
[354]As part of our discussion on the interpretation of “relates to” we consider what is encompassed in “claim” in s 8HB.
[355]See Haronga v Waitangi Tribunal (Te Ropu Whakamana I Te Tiriti o Waitangi), above n 24, at [50] on “the four statutory prerequisites for resumption”.
In circumstances such as the present, however, where the Tribunal has already (by dint of its Tūranga District Inquiry) found the claimants’ s 6 claims are well‑founded, the Tribunal must consider:
(a)whether and to what extent the well-founded breaches relate to the CFL land;
(b)whether the prejudice caused by those breaches warrants the return of some or all of the land; and
(c)to whom the land should be returned and on what conditions.
“Relates to”
We have already expressed the view (above at [247]) that the Tribunal’s tripartite reformulation of what the words “relates to” in s 8HB was an unnecessary gloss on the statutory words themselves. We do not propose to say anything more about that here.
As Williams J observed in Wairarapa Moana, the power to make binding recommendations in relation to CFL land was “folded … into” the Tribunal’s jurisdiction under s 6.[356] So, the starting point is to identify how the texts of ss 6 and 8HB work together.
[356]Wairarapa Moana, above n 4, at [103] per Winkelmann CJ, Glazebrook and Williams JJ.
Section 6 applies “[w]here any Maori claims that … [they are or are likely to be] prejudiced by” Treaty breaching Crown conduct. The ordinary meaning of “claims”, used here as a verb, is to assert that something is the case.[357] “[B]y” simply identifies that it is the Crown whose conduct is said to have caused the relevant prejudice. Section 6 therefore contemplates any assertion of a Treaty breach that has resulted in prejudice. The threshold for bringing a claim under s 6 is a low one.
[357]See Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 201, most relevantly “assert, contend”; J A Simpson and E S C Weiner (eds) The Oxford English Dictionary (2nd ed, Oxford University Press, Oxford, 1989) vol 3 at 262, “[o]ften loosely used (esp in US) for: Contend, maintain, assert”; Merriam‑Webster Dictionary (online ed, Merriam-Webster) definition of “claim”, “to assert in the face of possible contradiction”; and Jeremy Butterfield (ed) Fowler’s Dictionary of Modern English Usage (4th ed, Oxford University Press, Oxford, 2015) at 152 notes “[t]here is an argument that claim should not be used as a mere synonym for allege, assert … but should contain an element of argued contention”.
Section 8HB applies “where a claim submitted … under section 6 relates to licensed land”. “[C]laim” is used here as a noun. It is necessarily made up of both the assertion of breach and the prejudice. Section 8HB imposes the additional requirement that this assertion — that Māori have been prejudiced by the Crown’s Treaty breaching conduct — relates (in whole or in part) to the land.[358] The opening words of s 8HB(1), read together with those of s 6, can therefore be paraphrased as:
Where any Māori claims that they are or are likely to be prejudicially affected by the Crown’s conduct and the claim that they have been prejudicially affected by the Crown’s conduct relates (in whole or in part) to licensed land …
[358]For the reasons we have discussed above at [282].
It necessarily follows that claims captured by s 8HB will form a subset of s 6 claims. But that does not tell us much about the parameters of s 8HB, other than that s 8HB was not intended to encompass all claims made under s 6 or, indeed, all s 6 claims within a particular area or district. We acknowledge that it is difficult to articulate the parameters of what “relates to” means in the abstract, without merely adopting synonymous phrases such as “concerning” or “connected with”, none of which advance matters.
We nonetheless begin by observing that we can see nothing in the literal meaning of “relates to”, the wording of s 8HB more generally or the wider context to suggest the phrase was intended to limit the scope of s 8HB to claims about the circumstances in which CFL land was either lost by Māori or came into Crown ownership. Such an interpretation would be inconsistent with the way in which (even in 1989) Treaty claims were advanced and, as the majority noted in Wairarapa Moana, such a transactional approach would have been wholly inconsistent with the customary relationship between Māori and the land.[359] Moreover, if that had been Parliament’s intention, it would have been easy enough to say so.
[359]Wairarapa Moana, above n 4, at [103]–[104] per Winkelmann CJ, Glazebrook and Williams JJ.
Nor do we agree that either the concept of “return” or the time frames within which claims for resumption were hoped to have been resolved warrant a narrow approach to the relevant scope of the phrase “relates to”. The point about “return” is readily answered by the dicta from Lands set out earlier;[360] all land in this country once belonged to Māori and any land that is transferred to them to compensate for or remove the prejudice caused by Treaty breaches can properly be seen as being “returned”. And the time frames were plainly aspirational only. As we have said, the resumption provisions must be interpreted in light of the circumstances as they have arisen.[361] Notably, the compensation regime in the CFAA expressly recognises the possible effluxion of time and makes provision for it.
[360]Above at [249]; and Lands case, above n 10, at 653–654 per Cooke P.
[361]Above at [260], n 301; and Legislation Act, s 11.
But while we acknowledge that the phrase “relates to” should bear a wide meaning here,[362] we consider its ordinary meaning nonetheless connotes an identifiable relationship between the well-founded claim of Treaty breach on the one hand and the CFL land on the other.[363] In a case where a range of well-founded breaches have been established under s 6 as a result of a district inquiry, it is to be expected that only a subset of those breaches will qualify; s 8HB cannot mean that where the area covered by such an inquiry happens to include SOE or CFL land, that land is automatically available as a remedy for all those breaches.
[362]Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2) [2006] EWCA Civ 1529, [2007] QB 886 at [137]: “the expression ‘relating to’ is capable of bearing a broader or narrower meaning as the context requires”. See also Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 617, referring to Rein v Lane (1867) LR 2 QB 144 at 150–151. And, compare the various interpretations of similar phrases in: Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 at [40]–[58]; Re Scottish Independence Referendum Bill [2022] UKSC 31, [2022] 1 WLR 5435 at [71]; Lewisham London Borough Council v Malcolm [2008] UKHL 43, [2008] 1 AC 1399 at [10] per Lord Bingham and [169] per Lord Neuberger; and Torfaen County Borough Council v Douglas Willis Ltd [2013] UKSC 59, [2013] 4 All ER 1 at [24].
[363]See Deverson and Kennedy, above n 357, at 948, “have reference to; concern”; J A Simpson and E S C Weiner (eds) The Oxford English Dictionary (2nd ed, Oxford University Press, Oxford, 1989) vol 13 at 549, “[t]o connect, to establish a relation between” or “[t]o be related, have relation, stand in some relation, to another thing”; and Merriam-Webster Dictionary, above n 357, “to have relationship or connection”.
For essentially the same reason, we are also unable to accept that the extent of prejudice suffered by a claimant as a result of all their well-founded s 6 claims can be allowed to drive the meaning of the words “relates to”. On the plain wording of the section, prejudice is necessarily the next stage of the inquiry; it can only be considered after an assessment of the existence, nature and extent of the claims relating to the land have been identified. We return to the question of relevant prejudice later.
Relatedly, the legislative history we have outlined above — and in particular the rejection by Parliament of the Tribunal’s proposal that s 8A should encompass or enable a “land for land” remedy — means that SOE or CFL land cannot be used to compensate for land loss suffered by a claimant elsewhere, however egregious the Treaty breaches that gave rise to that loss. It follows that we are unable to agree with the Tribunal’s view (first expressed in its 1998 Determination of Preliminary Issues but repeated in the 2021 Remedies Report)[364] that binding recommendations under s 8HB could be made on a “land for land” basis or to compensate generally for tribal land losses. As the Tribunal itself has previously recognised, the unavailability of SOE or CFL land for general remedial purposes is the significant limitation of what is, in other respects, an innovative and remedial regime.[365]
[364]2021 Remedies Report, above n 5, at 71.
[365]It seems clear, for example, that concerns about the potential inequities arising from the scheme were one of the principal drivers behind the Tribunal’s decision in its 2014 Remedies Report to decline to make any firm resumption recommendations.
So we consider the words “relates to” require an identifiable nexus between a claim of Treaty breach and the subject land. There must be proximity between the breach and the land in terms of place and circumstance, in recognition of the distinction between the broad scope of s 6 claims generally and the much more specific ambit of s 8HB. Treaty breaches that merely set the scene for later breaches connected with the land in a remote “but for” sense will not be sufficient.
Although, for example, the Treaty breaches occasioned by the Crown’s attack on Waerenga a Hika and the treatment of Te Kooti and the Whakarau (including their exile to Wharekauri) were of the most serious and egregious kind, we are unable to see that these have sufficient connection to the Mangatū CFL land to meet the s 8HB threshold. Equally, however, we acknowledge it may be possible to view the Treaty‑breaching deed of cession in 1868 — by which the Crown sought to obtain land (including the Mangatū lands) to punish those seen as rebels — as having a sufficient connection for s 8HB purposes. Different questions may, of course, arise at the stage of assessing the extent of the relevant prejudice from these breaches, in light of the return of the lands in 1873.
So as we have said, claims that “relate to” the land need not concern only claims for breaches that resulted in the Crown acquiring title to the land, or in its ultimate loss by Māori. It is quite plain from the claims in the present case (and from the Crown’s own pre-Mercury position) that there were numerous Crown actions, Acts and ordinances that did interfere in both direct and indirect ways with the relationship between the claimants’ tīpuna and the Mangatū CFL lands, including for example breaches affecting the ability of Māori to manage, care for and control the land.
The last point we would make on this issue is that, as the Crown submitted, it is necessary for the purposes of the s 8HB exercise to consider the various claims of breach separately. It does not suffice to approach the question of relevant breaches on a district-wide basis. That is what the Tribunal wrongly did here.
Prejudice
Once the Tribunal has determined which of the well-founded breaches can properly be said to relate to the Mangatū CFL land in the way we have described, s 8HB(1)(a)(ii) requires it to consider whether the prejudice resulting from those breaches warrants the return of some or all of the land. Unlike other parts of s 8HB, subs (1)(a)(ii) uses the language of causation: it concerns the action that should be taken “to compensate for or remove the prejudice caused by” Treaty breaching conduct.[366] As noted earlier, this requires a causative link between the breach and the prejudice; it cannot mean that prejudice from breaches unrelated to the subject land can be used to justify return of the land.
[366]Emphasis added.
As we have noted, the Tribunal’s approach did not reflect this requirement. It adopted an interpretation to the effect that it:[367]
[10] … could 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, and in other lands within their rohe on which they also depended.
[367]2021 Remedies Report, above n 5, at 152.
This approach was contrary to the express words of s 8HB(1)(a)(ii) and inconsistent with the need to identify the claims (and the breaches) that have a sufficient nexus to the CFL land. We agree with the Crown that the Tribunal wrongly had regard to the general effects of colonisation throughout the entire district on the claimant groups identified by the Tribunal as having customary interests in the Mangatū CFL land. This is an error which necessarily means the Tribunal overstated the extent of the relevant prejudice in this case.
Whether the land should be returned and to whom
Once the relevant breaches have been identified and the extent of the prejudice caused by those breaches has been assessed, the Tribunal is required to determine whether some or all of the land should be returned, to whom and on what conditions. That decision must reflect the nexus between the land and the well-founded breaches, the relationship between the claimants and the subject land, and the extent of the prejudice resulting from the relevant breaches. Return must also, to the extent possible, take proper and fair account of competing interests. By the words “to the extent possible” we mean that we do not consider that all or part of the land can be returned to those who have not suffered prejudice from a qualifying Treaty breach — a breach that relates to the CFL land in question.
Lastly, we agree with the Tribunal’s observation that there are circumstances in which the return of the land would not be appropriate. For example, where it would not be proportionate to the prejudice suffered, some reason grounded in tikanga makes return inappropriate or the land would itself present an unfair burden on the claimant.[368]
[368]At 160.
The errors we have identified in terms of the “relates to” threshold and in the approach to prejudice inevitably affect the Tribunal’s assessment at this last stage, too. It is for this reason that we agree with Cooke J that the application of s 8HB in its entirety must be referred to the Tribunal for reconsideration.
Solicitors:
Gibson Sheat, Wellington for Te Aitanga a Māhaki (Appellants in CA149/2023, Second and Sixth Respondents in CA150/2023 and Third and Sixth Respondents in CA151/2023)
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Attorney-General (First Respondent in CA149/2023, Appellant in CA150/2023 and Second Respondent in CA151/2023)
Ministry of Justice, Wellington for Waitangi Tribunal (Second Respondent in CA149/2023, First Respondent in CA150/2023 and First Respondent in CA151/2023)
Te Aro Law, Wellington for Ngā Uri o Tamanui (Third Respondents in CA149/2023, Third Respondents in CA150/2023 and Fourth Respondents in CA151/2023)
Bennion Law, Wellington for Ngā Uri o Tamanui (Fourth Respondent in CA149/2023, Fourth Respondent in CA150/2023 and Fifth Respondent in CA151/2023)
Tamaki Legal, Auckland for Te Whānau ā Kai (Fifth Respondent in CA149/2023, Fifth Respondent in CA150/2023 and Appellant in CA151/2023)
Appendix A
Appendix B
0
14
0