IN THE COURT OF APPEAL OF NEW ZEALAND
CA73/2010
[2010] NZCA 201BETWEENALAN PAREKURA TOROHINA HARONGA JUNIOR
Appellant
ANDWAITANGI TRIBUNAL
First RespondentANDTHE ATTORNEY-GENERAL
Second RespondentANDTE WHAKARAU (FORMERLY TE POU A HAOKAI)
Third Respondent
Hearing:10 March 2010
Court:O'Regan, Arnold and Randerson JJ
Counsel:B W F Brown QC and K S Feint for Appellant
No appearance for First Respondent
V L Hardy and C Linkhorn for Second Respondent
T Bennion and F Khan for Third Respondent
M Doogan for Federation of Maori Authorities Inc as Intervener
Judgment:19 May 2010 at 10.30 am
JUDGMENT OF THE COURT
A The appeal is dismissed.
B There is no order for costs.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1] On 17 September 2009 the appellant, Mr Haronga, as Chairperson of the Proprietors of the Mangatu Blocks Incorporated (the Incorporation), applied to the Waitangi Tribunal for an urgent remedies hearing following the Tribunal’s 2004 Report on the Turanganui a Kiwa claims, entitled Turanga Tangata Turanga Whenua.[1] Mr Haronga wanted the opportunity to obtain a binding recommendation from the Tribunal under s 8HB(1) of the Treaty of Waitangi Act 1975 (the ToWA) that certain Crown forest land be transferred to the Incorporation.
[1]Waitangi Tribunal Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims (WAI 814, 2004).
[2] The Tribunal’s ability to make binding resumption orders under s 8HB(1) had its genesis in two important decisions of this Court, namely New Zealand Maori Council v Attorney-General[2] (the Lands case) and, more particularly, New Zealand Maori Council v Attorney-General[3] (the Forests case). Both gave rise to legislative amendments, including the introduction of s 8HB into the ToWA.
[3] The statutory position is that under s 6(2) of the ToWA the Tribunal is obliged to inquire into every claim made to it under s 6(1), subject to certain limited exceptions. Sections 6(3) and 6(4) provide that, in relation to any well-founded claim, the Tribunal may recommend to the Crown that remedial action be taken, either in general or specific terms. In relation to Crown forest land, s 8HB provides that the Tribunal “may ... include in its recommendation under s 6(3) a recommendation that the land ... be returned to Maori ownership”. Under s 8HC, such a recommendation is an interim recommendation and may not be confirmed by the Tribunal until after a 90 day period has expired, at which time it becomes a final recommendation, but only if there has been no other resolution of the claim. Section 36(1) of the Crown Forests Assets Act 1989 (CFAA) requires the Crown to return Crown forest land to Maori ownership, and to pay compensation, where the Tribunal has made a final recommendation for the return to Maori of that land.
[4] By a decision dated 21 October 2009, Judge Clark rejected the appellant’s application for an urgent…
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