Ngāti Whātua Ōrākei Trust v Attorney-General (No 4)
[2022] NZHC 843
•28 April 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2033
[2022] NZHC 843
UNDER the Judicature Amendment Act 1972 and Part 30 of the High Court Rules BETWEEN
NGĀTI WHĀTUA ŌRĀKEI TRUST
Plaintiff
AND
ATTORNEY-GENERAL
First Defendant
Hearing: 9 February – 30 April 2021 (weekdays except 12, 15–19 February,
1–5 March, 1–2, 5–6, 14–16, 19–20, 29 April 2021) with
additional submissions on 21 and 24 May, 5, 12 and 17 November
2021 and 21 and 28 January 2022Appearances:
J E Hodder QC, J W J Graham and R M A Jones and E Kapa- Kingi for the plaintiff and for Te Runanga o Ngāti Whātua and Ngāti Whātua o Kaipara, interested parties
D A Ward, G H Allan, Y Moinfar-Yong and N J Ellis for the first defendant
P F Majurey for the second defendant
A H C Warren, R A Siciliano, D T K Ketu, K M Katipo for Ngāi Tai ki Tāmaki Trust, interested party
N R Coates, L A V Underhill-Sem and A O Houia-Ashwell for Te Ākitai Waiohua Settlement Trust, interested party
M K Mahuika, T N Hauraki and C Conroy-Mosdell for Ngāti Pāoa Iwi Trust, interested party
T D Smith and J M Te Rata for Ngāti Kuri Trust Board and Ngāi Te Rangi Settlement Trust, interveners
Judgment:
28 April 2022
JUDGMENT No 4 OF PALMER J
This judgment was delivered by me on Thursday 28 April 2022 at 10 am.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
NGĀTI WHĀTUA ŌRĀKEI TRUST v ATTORNEY-GENERAL [2022] NZHC 843 [28 April 2022]
AND MARUTŪĀHU RŌPŪ LIMITED PARTNERSHIP
Second Defendant
TE RŪNANGA O NGĀTI WHATUA
Interested partyNGĀTI WHĀTUA O KAIPARA
Interested partyNGĀTI PĀOA IWI TRUST
Interested partyNGĀI TAI KI TĀMAKI TRUST
Interested partyTE ĀKITAI WAIOHUA SETTLEMENT TRUST
Interested party
NGĀTI KURI TRUST BOARD
IntervenerNGĀI TE RANGI SETTLEMENT TRUST
Intervener
Contents
ISummary......................................................................................................... 1
AThe Ngāti Whātua Ōrākei claim 1
BResponses to Ngāti Whātua Ōrākei 6
CTikanga 10
DMana whenua in Tāmaki Makaurau 10
ETreaty Settlements and overlapping interests today 15
FTikanga obligations in settling Treaty claims 22
GResult 28
IIThe parties and issues.................................................................................. 30
AThese proceedings 30
BThe parties 32
CThe issues and hearing 34
IIIKo Ngāti Whātua Ōrākei tēnei.................................................................... 37
AOrigins 38
BThe great migration from Muriwhenua to Kaipara 40
CNgāti Whātua v Nga Iwi 40
DThe 18th century raupatu or conquest of Tāmaki 42
EThe connections established as a result of the raupatu 45
FNgāti Whātua and Ngāti Whātua Ōrākei 46
GNgāti Whātua Ōrākei until the 1820s 48
HStrategic withdrawal in the 1820s 49
INgāti Whātua Ōrākei and the Crown 54
JNgāti Whātua Ōrākei and the Native Land Court 61
KNgāti Whātua Ōrākei become landless 65
LThe Ngāti Whātua Ōrākei claim to mana whenua in Tāmaki Makaurau 66
IVResponses to Ngāti Whātua Ōrākei............................................................ 71
AThe Marutūāhu Rōpū response to Ngāti Whātua Ōrākei 71
BThe Ngāti Pāoa challenge to Marutūāhu 80
CThe response of Ngāi Tai ki Tāmaki 91
DThe response of Te Ākitai Waiohua 98
EThe Crown’s comments 108
FThe position of Ngāti Kuri and Ngāi Te Rangi 110
GHistorical experts 111
HPūkenga 113
VTikanga........................................................................................................ 117
AWhat is tikanga? 117
BTikanga across iwi 124
CThe legal status of tikanga 131
DThe Court’s role regarding tikanga 148
EHow should the Court approach tikanga? 155
FThe standard of proof of tikanga 158
VIMana whenua in Tāmaki Makaurau........................................................ 163
AHistorical evidence 163
BThe historical basis of mana whenua at Ngāti Whātua Ōrākei tikanga 167
CMana whenua in Tāmaki Makaurau at tikanga Māori 176
DDeclarations about mana whenua 191
VIITreaty settlements and overlapping interests today 198
ABastion Point and specific Treaty settlements of Ngāti Whātua Ōrākei 198
BThe 2006 Ngāti Whātua Ōrākei AIP and the Waitangi Tribunal 200
CCollective and individual settlements in Tāmaki Makaurau 204
DThe Crown’s policy on overlapping interests 214
EIllustrative examples of the application of Crown policy 231
VIIITikanga obligations in settling Treaty claims in Tāmaki Makaurau 247
AAn overview of the submissions 247
BJurisdictional parameters 249
CTikanga and the Crown’s prerogative or residual powers 251
DTikanga and the Treaty of Waitangi 253
EThe Treaty and the law 258
FTikanga obligations in Treaty settlements 261
GOther sources of legal duties 265
HTikanga and the Crown’s Overlapping Interests Policy 266
ITikanga and Treaty settlements in Tāmaki Makaurau 273
JDeclarations about Crown obligations regarding tikanga 276
IXResult 279
ANNEX OF SHORT FORM REFERENCE TAGS
I Summary
[1] Ngāti Whātua Ōrākei seek a declaration from the Court that they have ahi kā and mana whenua in relation to specified land in central Tāmaki Makaurau (Auckland) at tikanga.1 They also seek declarations about how that means the Crown must act in relation to that land when settling claims of other iwi of breaches of the Treaty of Waitangi. Ngāti Whātua o Kaipara and Te Rūnanga o Ngāti Whātua support Ngāti Whātua Ōrākei. Ngāti Pāoa, Ngāti Kuri and Ngāi Te Rangi support aspects of the Ngāti Whātua Ōrākei case. Other iwi from the Marutūāhu Rōpū, Ngāi Tai ki Tāmaki and Te Ākitai Waiohua oppose the Ngāti Whātua Ōrākei claim to ahi kā and mana whenua. The Crown opposes the Ngāti Whātua Ōrākei claim altogether.
[2]The 11-week hearing at the Auckland High Court involved oral evidence from
35 pūkenga (experts in tikanga), experts in history, tribal witnesses and Crown officials. Two successive Ministers of Treaty of Waitangi Negotiations provided affidavits. The documentary evidence is also extensive. There was a hikoi from Ōrākei for the opening of the Ngāti Whātua Ōrākei case. Kiingi Tuuheitia and Waikato-Tainui attended for the opening of the Ngāi Tai ki Tāmaki case. The hearing was live-streamed and I deliver this summary of the judgment orally. The issues are ground-breaking and concern history, tikanga, the Treaty settlement process, and the extent to which the Court should intervene in all of those arenas.
AThe Ngāti Whātua Ōrākei claim
[3] The claim of Ngāti Whātua Ōrākei is based on evidence by Te Kurataiaho Kapea, Taiaha (Lance) Hawke, Margaret Kawharu, Ngarimu Blair, Tāmati Kruger, Paul Meredith, Charlie Tawhiao, Dr Vincent O’Malley and Professor David Williams, and published and unpublished scholarly works, including those by Professor Sir Hugh Kāwharu. I set out a lengthy summary of the story of Ngāti Whātua Ōrākei as they express it, directed towards showing their mana whenua in the Tāmaki isthmus based on their tribal history, traditions and tikanga. The tribal history, traditions and tikanga of Ngāti Whātua Ōrākei do not need approval or disapproval by the Court. Neither do
1 Ngāti Whātua Ōrākei is a collective entity, of course. But I prefer not to refer to Ngāti Whātua Ōrākei, or other iwi or hapū, as “it”. I refer to an iwi or a hapū as a singular “they” in this judgment.
the tribal histories and traditions and tikanga of other iwi, aspects of which I outline later.
[4] From the descendants of the waka Māhuhu and Kurahaupō at Muriwhenua, tūpuna of Ngāti Whātua Ōrākei migrated to the north of the Kaipara, acquiring the name Te Taoū in battle. Around the 1600s, they came into conflict with Ngā Iwi on the south of the Kaipara Harbour. They were led by Haumoewārangi, who was killed with his daughter Rangiteipu. Kāwharu then led the Raupatu Tīhore of Ngā Iwi (the stripping conquest) from the Kaipara to Tāmaki. Kāwharu was eventually killed. A generation on, Ngāti Whātua and Te Taoū conquered Ngāi Iwi and settled in South Kaipara, with dominion from Maunganui Bluff to Kaipara Harbour.
[5] Around 1740, Kiwi Tāmaki of Te Waiohua, based in Maungakiekie (One Tree Hill), had undisputed mana over many people and several settlements in Tāmaki Makaurau, including mana whenua in relation to the area over which Ngāti Whātua Ōrākei claim it today. Kiwi Tāmaki launched a surprise attack on Ngāti Whātua in Kaipara. Te Taoū and other Ngāti Whātua hapū, led by Tuperiri, attacked Waiohua. Wahaakikai killed Kiwi Tāmaki at Paruroa (Big Muddy Creek). Later, Te Taoū took pā in from the southern shores of Waitematā to Kohimarama, then Tokapurewha, Whakatakaka, Ōrākei, Taurarua, Maungakiekie and then in Māngere. Ngāti Whātua Ōrākei say this was a comprehensive raupatu that resulted in a total change to political dominance in Tāmaki Makaurau.
[6] The name Ngāti Whātua, originally the name of one hapū, was adopted as a name for all hapū from Maunganui Bluff to Tāmaki in the 1800s. Te Taoū, Ngāoho and Te Uringutu are the three hapū comprising Ngāti Whātua Ōrākei.
[7] A section of Te Taoū under Tuperiri stayed in Tāmaki occupying Maungakiekie (One Tree Hill), Onewa, Te Tō (Freeman’s Bay), Onehunga, Ōrākei, the upper Waitematā, Māngere and Ihumātao. Ngāti Whātua Ōrākei say an integral part of the raupatu was establishing new links with those whom Te Taoū had conquered. The children of Tuperiri married into Te Waiohua, in particular into Ngāti Te Ata. They have connections through marriage with Ngāti Pāoa. Ngāti Whātua Ōrākei accepts that some Waiohua people survived, stayed and intermarried with Ngāti Whātua
Ōrākei but maintains they did so under the political influence of Ngāti Whātua Ōrākei. They say they held sway from Maunga-nui Bluff to the Manukau Heads and eastwards to the Tāmaki River. By the beginning of the 19th century, their main residences were at Ihumātao and Māngere but they had significant cultivations at Ōkahu Bay and along the shores of the Waitematā. Early European encounters attest to the dominance of Te Kawau, as leader of Ngāti Whātua Ōrākei, in Tāmaki Makaurau west of the Tāmaki River.
[8] From 1821, Ngāpuhi attacked iwi in Tāmaki Makaurau, including Ngāti Pāoa and Ngāti Whātua, with many muskets. From 1826, Ngāti Whātua Ōrākei made a strategic withdrawal from the Tāmaki isthmus, as had other iwi. They relocated to Waikato but maintained their customary connections with the area over which they claim mana whenua. Ngāti Whātua Ōrākei began their permanent return to the Tāmaki isthmus in late 1835, protected by the long-standing alliance between Te Kawau and Te Wherowhero of Waikato.
[9] By the spring of 1837, Ngāti Whātua Ōrākei were planting gardens at Horotiu (Queen Street) and Remuera. A chapel was built at Ōrākei and hui were held, including at Ōrākei and Ōkahu Bay, to coordinate defence and cultivations. Other iwi also returned to the Tāmaki isthmus but Ngāti Whātua Ōrākei say they did not return not to the area over which Ngāti Whātua Ōrākei claim mana whenua. Ngāti Pāoa were in the Hauraki Gulf. Ngāi Tai ki Tāmaki were to the east in Maraetai and had interests in Clevedon and Papakura and some of the Hauraki Gulf islands. Ngāti Te Ata, Ngāti Tamaoho and Te Ākitai Waiohua ringed the southern shore of the Manukau Harbour up to the western Māngere peninsula. Te Kawerau ā Maki were to the west in Waitakere and had a pā at Onewa and claims to occupational rights on the North Shore, alongside Ngāti Pāoa and Ngāti Whātua Ōrākei. Ngāti Whātua Ōrākei say they continue to recognise the interests of these iwi in modern times.
[10] By 1840, Ngāti Whātua Ōrākei say they had resumed the exercise of political authority from their principal kāinga between Māngere and Onehunga through Maungakiekie to the Waitematā, with Te Kawau permanently based at Ōrākei. Te Kawau signed the Treaty of Waitangi in March 1840. He was eager to form an alliance with the Crown including for protection and trade purposes. In April 1840 he sent a
delegation to invite Lieutenant-Governor Hobson to relocate the capital to the shores of the Waitematā, which was accepted. In September and October 1840, Ngāti Whātua Ōrākei transferred 3,500 modern acres of land to the Crown, starting from the river Mataharehare at what is now Hobson Bay, and continuing along the Waitematā to the river Ōpoutūkeha (or modern Cox’s Bay) and then from both points to the summit of Maungawhau (Mt Eden). This transfer enabled the establishment of what is now the heart of Auckland city, which was formally established on 18 September 1840.
[11] Ngāti Whātua Ōrākei transferred two further blocks to the Crown in 1841 and 1842: 13,000 acres from Ōrākei, down what is now Manukau Rd, to Maungakiekie then to Puketāpapa (Mt Roskill) to the portage at Te Whau in 1841; and 200 acres of a triangle from Royal Oak, Three Kings to Maungakiekie. Ngāti Whātua Ōrākei say these were all tuku whenua, requiring utu or reciprocity, the start of a mutually beneficial and enduring relationship with the Crown. Ngāti Whātua Ōrākei further transacted land directly with Pākehā settlers and transferred land at Pukapuka to Kati, Te Wherowhero’s brother and at Remuera/Epsom to Wetere of Ngāti Maoho, Ngāti Tamaoho and Ngāti Te Ata.
[12] By the 1850s, Ngāti Whātua Ōrākei had only 700 acres at Ōrākei. They say they expressed loyalty to the Crown, supplied produce and worked on building projects, formed an alliance with the Anglican Church, encouraged dispute resolution through the courts, acted as an intermediary between the Crown and the Kiingitanga, and hosted the 1860 Kohimarama Conference. But the Crown failed to reciprocate. By the mid-1860s Ngāti Whātua Ōrākei and others were becoming disillusioned and disheartened with any alliance with the Crown. In 1866, and again in a comprehensive judgment in 1869, the Native Land Court confirmed the rights of Ngāti Whātua Ōrākei over the Ōrākei Block and roundly rejected the claims of Heteraka Takapuna of Ngāi Tai ki Tāmaki. Ngāti Whātua Ōrākei did their best to stop the loss of land but it continued. By early 1950 they were virtually landless due to sustained compulsory and sometimes unethical acquisitions by the Crown. In 1952, the Crown forcibly evicted the remaining Ngāti Whātua Ōrākei inhabitants from their homes and burnt their village and meeting house at Ōrākei.
[13] On the basis of their tribal historical narrative and traditions, Ngāti Whātua Ōrākei claim mana whenua in Tāmaki Makaurau, in the area depicted in Map 1.
Map 1: The area over which Ngāti Whātua Ōrākei claim mana whenua
[14] Ngāti Whātua Ōrākei do not seek ownership of the land but a declaration of their mana whenua in terms of tikanga. Ngāti Whātua Ōrākei say this is their heartland or core rohe, since Tuperiri’s raupatu in 1740, where they have maintained their ahi kā and mana whenua to this day. The claim of Ngāti Whātua Ōrākei is based on several take, or rights and responsibilities to land: take raupatu from the rauapatu and take tupuna from intermarriage, followed by ahi kā roa – keeping the fires lit, or inter- generational occupation, use and permanent control. Ngāti Whātua Ōrākei say their mana whenua is not shared with other iwi. Ngāti Whātua Ōrākei recognise many
groups have important historical and customary interests in certain parts of the area and acknowledge their obligations to acknowledge and look after those interests at tikanga. But Ngāti Whātua Ōrākei say no other group have a credible basis for an equivalent claim to mana whenua in this area at tikanga. This, say Ngāti Whātua Ōrākei, is entirely consistent with the relevant general principles of tikanga Māori. Mr Hodder QC, for Ngāti Whātua Ōrākei, seeks a declaration accordingly.
BResponses to Ngāti Whātua Ōrākei
[15] The Marutūāhu Rōpū is a confederation of five closely related iwi of the Tainui waka: Ngāti Maru, Ngaati Whanaunga, Ngāti Tamaterā, Ngāti Pāoa and Te Patukiriri. They are independent iwi who cherish their mana motuhake. They are mobile maritime peoples, moving between settlements and cultivations connected by moana (the sea or water). Marutūāhu Rōpū claim their iwi have customary interests or mana in central Auckland.
[16] Marutūāhu Rōpū do not challenge the identity of Ngāti Whātua Ōrākei being centred at Ōrākei. But they dispute a number of aspects of the historical narrative of Ngāti Whātua Ōrākei. For example, in their traditions, a wedding gift from Waiohua accounted for the arrival of Ngāti Pāoa on the isthmus and Ngāti Pāoa and Marutūāhu had their own tradition of their raupatu of Waiohua. Ngāti Pāoa lived in many pā and kāinga in Tāmaki through the 18th and 19th centuries until the battles with Ngāpuhi. Ngāti Whātua was protected while sheltering in the Waikato in the 1820s by Marutūāhu, who returned first to the isthmus. Ngāti Whātua Ōrākei was given permission by Ngāti Pāoa to settle at Ōrākei. Marutūāhu Rōpū called as witnesses: Tipa Compain, Terrence McEnteer, Liane Ngamane, William Peters, David Taipari, Harry Mikaere, Hauāuru Rawiri, Walter (Wati) Ngamane, Dr Korohere Ngāpō, Morehu Wilson and Professor Michael Belgrave. I record with sadness that Liane Ngamane and Morehu Wilson have passed away since the hearing.
[17] Mr Majurey, for Marutūāhu Rōpū, acknowledges that the tikanga of Ngāti Whātua Ōrākei does not admit of shared customary interests or mana in central Auckland. But he submits this is not the tikanga of any other Tāmaki tribe in the proceeding. In Marutūāhu tikanga, even marae and urupā are often shared. He
submits the absence of recognition by any iwi of the mana whenua of Ngāti Whātua Ōrākei is significant in terms of tikanga. It is unsafe to rely on the decisions of the Native Land Court. He submits it is open to the Court to find that the Ngāti Whātua Ōrākei claim of exclusive ahi kā and mana whenua is not made out over every inch of the claim area.
[18] Several of the issues with the historical narrative of Ngāti Whātua Ōrākei that are raised by Marutūāhu Rōpū rely on the location of activities and settlements of Ngāti Pāoa as one of their constituent iwi. But Ngāti Pāoa Iwi Trust appears separately in these proceedings. While Ngāti Pāoa has close whakapapa connections to Marutūāhu, Pāoa himself was not a descendant of Marutūāhu. By the beginning of the 19th century, the largest settlements of Ngāti Pāoa were in Tāmaki but they were driven out by the attacks by Ngāpuhi in the 1820s. On their return, Ngāti Pāoa made a peace pact with Ngāti Whātua Ōrākei, sealed by marriage settlements and gifts, at Ōkahu Bay in the 1830s. They settled around the eastern coast from Mission Bay and St Heliers to the Panmure Basin. In the 1860s, loyal to the Kiingitanga, they were rendered almost landless. Ngāti Pāoa called Ted Andrews, Glen (Joe) Tupuhi and Hayden Solomon as witnesses.
[19] Mr Mahuika, for Ngāti Pāoa, submits it is not the case that where one iwi of Marutūāhu were, all were. He submits it is not correct as a matter of fact or tikanga that the Marutūāhu collective subsumes the interests of Ngāti Pāoa or can claim significant interests in Tāmaki independently of Ngāti Pāoa. Mr Mahuika submits it is solely or primarily through the interests of Ngāti Pāoa that the Marutūāhu Rōpū claims an interest in the 1840 transfer lands and the land over which Ngāti Whātua Ōrākei claims mana whenua. Ngāti Pāoa oppose the position of Marutūāhu Rōpū.
[20] Ngāti Pāoa support the rights declarations sought by Ngāti Whātua Ōrākei to the extent they are consistent with the Kawenata Tapu and Conciliation Agreement which Ngāti Pāoa and Ngāti Whātua Ōrākei entered at Ōkahu Bay in January 2017, in a tikanga consistent process. Ngāti Whātua Ōrākei acknowledges that Ngāti Pāoa has “lead mana whenua interests” in the east of Auckland and on the North Shore. Ngāti Pāoa recognises that Ngāti Whātua Ōrākei has “lead mana whenua interests” in central Auckland. No one disavows the Kawenata or questions its validity at tikanga. The
evidence is that Ngāti Pāoa and Ngāti Whātua Ōrākei have reached agreement at tikanga over their respective mana whenua. Ngāti Pāoa does not deny that Ngāi Tai ki Tāmaki and Te Ākitai Waiohua have interests that extend into the area over which Ngāti Whātua Ōrākei claim mana whenua but leaves that to them to address.
[21] Ngāi Tai ki Tāmaki trace their ancestry from ancient pre-waka peoples known as Patupaiarehe, among others, and welcomed the Tainui waka, some crew members of which settled among them. They say the historical narrative is far from certain with conflicting evidence about several issues. They suggest the killing of Kiwi Tāmaki and raupatu was an intra-tribal fight between close relatives who both held their interests in Tāmaki through their Te Waiohua whakapapa. They question whether Ngāti Whātua Ōrākei maintained undisputed control over the Tāmaki isthmus after the attacks. They say the Ngāti Rau hapū remained on the isthmus throughout the period of Ngāpuhi attacks. They say there is uncertainty about the significance of the return of Ngāti Whātua Ōrākei to Tāmaki under the mana of Te Wherowhero. They say they continue to exercise kaitiaki responsibilities in the area at issue, which is the heartland of Ngāti Tai ki Tāmaki based on whakapapa. Ngāi Tai ki Tāmaki called four witnesses: James Brown, Te Warena Taua, Dr Te Kahautu Maxwell and Peter McBurney.
[22] Mr Warren (as he then was), for Ngāi Tai ki Tāmaki, submits the definition of ahi kā and mana whenua over every inch of whenua claimed by Ngāti Whātua Ōrākei cannot be sustained. If any tribe dominated following the death of Kiwi Tamaki, it was the forebears of Heteraka Takapuna and his relatives who descended from Hua o Kaiwaka and Ngāi Tai ki Tāmaki. Many tribes have and share mana whenua in the area. The concept of ahi kā has naturally evolved over time to meet the changing circumstances of Tāmaki Makaurau. Take tupuna and take whanaungatanga were most important in Tāmaki Makaurau. In central Auckland, because of the geography and whakapapa, application of the principles of tikanga have created shared mana whenua.
[23] Te Ākitai Waiohua descend from Ngā Oho, Ngā Riki and Ngā Iwi. Their eponymous ancestor, Huakaiwaka lived at Maungakiekie in the 17th century with a primary pā site at Maungawhau where his son, Kiwi Tāmaki was born. Te Ākitai acknowledges Te Taoū defeated Kiwi Tāmaki around 1740 though there is dispute
over the date. The defeat was a skirmish between close cousins and did not extinguish Te Waiohua who survived and re-established themselves in South Auckland, in and around Māngere in the 19th century. The return of Ngāti Whātua Ōrākei to Tāmaki in the 1830s would not have been possible without the protection of Te Wherowhero. Initial purchase histories should be given little weight. Ms Coates, for Te Ākitai Waiohua, submits that because of Crown actions, they lost their voice and profile in Tāmaki without clear rangatira representation, rendering the iwi virtually invisible to many third parties. Te Ākitai called evidence from Moka Apiti, Nigel Denny, David Wilson Takaanini, Karen Wilson and Mark Derby.
[24] Ms Coates submits that, while subsequent intermarriage gave Ngāti Whātua Ōrākei a take in the whenua, Waiohua continued to have underlying mana through an ancestral dimension, which allows them to have mana whenua. Te Ākitai Waiohua continues to maintain an ongoing relationship to the land and their customary interests in Tāmaki, with mana and take tupuna and the equivalent of ahi kā roa within the area over which Ngāti Whātua Ōrākei claim mana whenua. Ms Coates submits the effect of the declarations sought by Ngāti Whātua Ōrākei would be to expunge the mana whenua interests of all other iwi, including Te Ākitai, from the face of the Tāmaki isthmus.
[25] Te Ākitai Waiohua says that rights and interests in Tāmaki are more complex than one hapū being able to lay an impenetrable blanket with fixed and absolute boundaries of mana whenua and ahi kā over a vast area that has the effect of subordinating and/or ousting the customary interests and Treaty settlement opportunities of other iwi and hapū. Te Ākitai Waiohua say that exclusivity is not a necessary corollary of mana and the evidence highlights that shared mana whenua not only exists but is common in Māori society. Te Ākitai Waiohua see the world through their connections and relationship to land and people; an inclusive way of being, best expressed through whakapapa, whanaungatanga and manaakitanga.
[26] The Crown submits that Ngāti Whātua Ōrākei has not established the content of their asserted tikanga rights, either in terms of defining the exact nature of the tikanga concepts, such as the inherently exclusive nature of mana whenua, or their consequences at tikanga. Dr Ward submits different iwi hold different perspectives on
tikanga and may describe interests in different ways. There is a lack of specificity as to what is meant by Ngāti Whātua Ōrākei tikanga. There is an absence of consensus on the nature and characteristics of mana whenua. The characteristics of ahi kā are unclear. Given the contested nature of these concepts, and the plaintiff’s claim to exclusivity, the Crown submits it would not be appropriate or even possible, for the Court to declare that Ngāti Whātua Ōrākei holds mana whenua and ahi kā in central Auckland.
[27] Ngāti Kuri and Ngāi Te Rangi intervene in this proceeding because of the impact it will have on the Crown’s approach to the potential recognition of their rights and interests regarding other iwi in their respective rohe. They submit mana whenua is the ability to exercise authority over access to a territory and resources. As the highest and most powerful form of interest that defines and governs all other interests it is not divisible. But they do not take a position on tikanga as it applies in Tāmaki Makaurau.
[28] I outline in the judgment the positions on which the historian experts and the pūkenga, or tikanga experts were able to agree. I do not consider the agreed positions of the historians materially impact the positions of the parties about the historical narrative, but I take them into account with added evidential weight. Each of the pūkenga was an impressive witness, making careful responses drawing on deep knowledge. I consider that, collectively, the expert evidence of the pūkenga about tikanga is authoritative.
CTikanga
[29] As Dr Te Kauhautu Maxwell says, “the fact that tikanga has its origins with the gods gives it validity and tapu sanctity”.2 As Tāmati Kruger says, “tikanga Māori is a set of binding principles, beliefs and traditions practised collectively by Māori whānau, hapū and iwi since time immemorial”.3 Margaret Kawharu quotes the Rt Rev
2 Brief of evidence of Te Kahautu Maxwell, 13 October 2020 [Maxwell Brief] at [124]. The first citation of a source is a full citation. Subsequent citations are in short form. There is a full bibliography at the end of the judgment.
3 Brief of Evidence of Tāmati Kruger, 2 June 2020 [Kruger Brief] at [38]–[39].
Manuhuia Bennet as saying that “tikanga”, or custom, was the “right person, doing the right thing, in the right way”.4 The judgment provides further explanations.
[30] There are no differences between the parties as to the need to understand tikanga holistically as an interlocking set of reinforcing norms. Tikanga revolves around values and a value system. As the Waitangi Tribunal has said, “[t]ikanga is both a consequence and a source of Māori identity.”5 In a very real sense, then, tikanga is fundamental to “constituting” an iwi or hapū. It is essential to their identity along with, for example, their tribal histories, traditions and places. Without their tikanga, an iwi or hapū are not who they are. It follows that tikanga is quintessentially developed by each iwi or hapū, in the exercise of their rangatiratanga. There are different versions of which principles would be regarded as “core” to tikanga, as we heard in this case. Importantly, as circumstances change over time, norms evolve in response. Tikanga and its practice can change over time. None of the pūkenga disagreed with that. Tāmati Kruger describes tikanga as “ongoing and continuously updating”.6 And, as Dr Te Kahautu Maxwell says, “[t]ikanga is a way of life”.7 As Tāmati Kruger says, “[i]t is difficult to commit an account of tikanga to writing because … Māori traditions are predominantly aural and practical”.8 Tikanga loses something when reduced to writing. It even loses something when explained orally, in the abstract. Tikanga is performed, more than stated.
[31] The parties disagree on the degree of difference between the tikanga of different iwi and the extent to which tikanga Māori is common across all iwi and hapū in Tāmaki Makaurau and elsewhere. The position agreed by the pūkenga determines the point. There were and are fundamental philosophical underpinnings, described as tāhuhu he aratohu, that guide iwi approaches to tikanga and allow for some shared understandings and mutual interactions. However, the tikanga of an iwi or hapū is shaped by the historical narrative of that iwi and hapū, including the impact of colonisation and other events and circumstances over time. The evidence is that
4 Brief of Evidence of Margaret Kawharu, 2 June 2020 [Kawharu Brief] at [20] and [241].
5 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 3.
6 Kruger Brief at [56].
7 Maxwell Brief at [93].
8 Kruger Brief at [40].
tikanga Māori rests on core principles that are common across most iwi and hapū. As Dr Te Kahautu Maxwell says, the core values are “like a whāriki; a woven mat, they must go together for tikanga to stand up”.9
[32] Based on my (quite lengthy) review of the legal authorities and submissions, I consider it is clear that the law that accompanied Māori to Aotearoa was constituted by tikanga. Many aspects of it are law in New Zealand now: Māori customary law, made by iwi and hapū, governing behaviour of iwi and hapū and those who belong to them. As such, it is a “free-standing” legal framework recognised by New Zealand law. It does not necessarily cease governing an iwi or hapū just because the courts or Parliament or even other iwi suggesting otherwise.
[33] Tikanga is often assumed, recognised and referred to by New Zealand legislation. Like the common law made by courts, the legal effects of tikanga can be overridden by legislation. But even Parliament cannot change tikanga itself. Iwi do that, exercising their rangatiratanga. Similarly, one iwi cannot override the tikanga of another iwi without impinging on their rangatiratanga. Tikanga was recognised by English common law that accompanied the Crown to New Zealand, as were other sources of law. It is recognised by New Zealand common law today. As governing values for iwi and hapū, tikanga informs the common law. But it can be even stronger in legal effect than that. Tikanga can determine the outcome of a court’s application of a statute or the common law, as it has in some cases. It can be a direct source of legal rights enforced by the courts.
[34] Tikanga governs matters of process as well as substance. There are ways of resolving disputes about tikanga which are consistent with tikanga and ways which are not. Recourse to courts without agreement between the parties is not obviously tikanga-consistent. As a matter of tikanga, of course, tikanga-consistent dispute resolution processes must be preferred to non-tikanga-consistent court resolution of disputes about tikanga. Indeed, resolution of a dispute about tikanga by tikanga- consistent processes may be more enduring than a ruling by a court. Tikanga- consistent dispute resolution may involve several or many discussions on marae over
9 Maxwell Brief at [97].
a long period. Tikanga may require a discussion of a dispute over a long period of time compared to Pākehā dispute resolution. A court must be wary of claims by one group or another that resolution is not possible in the time taken so far.
[35] I accept that it would be a brave court that attempts to reconcile or prioritise tikanga that truly differs between iwi or hapū, especially if that reconciliation is not tikanga-based. An attempt to do so may well not be accepted at tikanga. It may not be tika. But, as Mr Mahuika says, tikanga does not end when an issue is taken to court. A court decision that pays due regard to tikanga could, perhaps, sometimes free a logjam in relationships and enable further iterations of tikanga-consistent discussions. Because tikanga is law, iwi and hapū may seek legal remedies relying on recognition of tikanga by the courts in particular cases. I accept Mr Hodder’s submission that the Court’s declaratory jurisdiction is able to include the making of formal declarations of legal status and rights, including customary rights, and of corresponding obligations. There may be a variety of different ways by which a court could seek to resolve a dispute over tikanga that may be consistent with tikanga, including appointment of pūkenga. Where all relevant parties agree through tikanga-based processes, the authority of the Court might be useful in granting remedies regarding an issue of tikanga. If they do not agree, it is more difficult.
[36] If tikanga-consistent resolution of a dispute about tikanga is not feasible, then recourse to a court may be appropriate as a matter of law. That necessarily follows from tikanga being part of New Zealand law. The quintessential function of courts is to determine disputes about law. That may include determining disputes about tikanga. As arose in discussion with Mr Warren and Mr Mahuika in closing submissions, in some ways litigation is now the modern alternative to resolution by battle which used to be, but is no longer, available to break a deadlock over tikanga.10 I do not rule out a court doing so where a dispute genuinely requires resolution, as an ultimate alternative to battle. Whether such a decision is tika, and consistent with tikanga, is another matter.
10 Notes of Closings 253/23–254/16, 260/15–261/5.
[37] Just because a Court can do something does not mean it should. One reason for judicial caution is that legal precedents in case law will not be authoritative as to the content of tikanga. This flows from the ongoing capacity for tikanga to change and for there to be differences in tikanga, and the application of tikanga, between iwi and hapū. Iwi and hapū create, determine and change tikanga through exercising their rangatiratanga. Courts do not and cannot make, freeze or codify tikanga. If a court approaches tikanga in a particular case, it must recognise tikanga on the basis of the evidence before it for the purpose of that case. What is recognised by a court cannot change the underlying fact or validity of tikanga in its own terms. A second reason for caution derives from the inherently difficult task of transcending culturally-specific mindsets. In recognising tikanga, common law courts must hold “in check closely” any unconscious tendency to see tikanga in terms of the English law heritage of New Zealand common law. They must be open to seeing tikanga on its own terms, as a distinct framework. A court’s caution in approaching tikanga must be heightened when the content of tikanga is disputed within an iwi or hapū or between iwi or hapū.
[38] The parties differed on the standard to which tikanga must be proved, whether to the usual standard for civil law cases, of the balance of probabilities, or to some other standard. The prospect that a court might find the tikanga of an iwi or hapū has or has not been established “on the balance of probabilities” seems inapt. I accept that it is not consistent with tikanga itself. And I accept that tikanga in fact is established by a dynamic consensus, evidenced by the ongoing practice of an iwi or hapū. Given that, it seems to me that a court simply has to be satisfied, on the evidence before it, that such a consensus prevails at any given time. That is consistent with how New Zealand courts approach the recognition of other forms of law, such as foreign law. It is consistent with academic commentaries and with some other cases. I doubt there is much practical difference between proving on the balance of probabilities that a consensus exists in an iwi or hapū about tikanga, and a court simply being satisfied of that. The crucial point is that the finding expressed by the Court is effectively about tikanga as determined by the iwi or hapū.
DMana whenua in Tāmaki Makaurau
[39] Making findings of fact about historical issues in the 1700s and 1800s at this distance is fraught. Tikanga and traditional tribal histories can differ from each other and competing views can validly be held and can differ over time. Any accounts of historical events may differ when recounted for different purposes, whether, given orally on the basis of tribal narratives or written down by professional historians. This is evidence of human qualities of different people focussing on different things at different times for different purposes. The Courts are used to evaluating evidence by witnesses of fact and expert witnesses in all spheres. I have evaluated and critically analysed each piece of evidence presented by the expert and other witnesses in the context of its consistency or inconsistency with the other relevant evidence. I do not regard the evidence of professional and tribal historians as necessarily any more or less credible or reliable than each other. As Professor Michael Belgrave says, “[t]here is no such thing as a definitive history”.11
[40] As the historian experts agree, I consider the accounts of the witnesses who gave evidence in the Native Land Court in 1866 and 1868 to be relevant evidence of what witnesses of fact were understood (including by translators) to have said at a time closer to the relevant events than we are now. I consider appreciably less weight is due to the conclusions drawn by the judges in those hearings, who did not hear from all the relevant potential witnesses, or even iwi, in the context of the most intense conflict between the Crown and iwi, particularly with Waikato-Tainui and affiliated iwi in Tāmaki Makaurau.
[41] In the judgment I review a number of issues regarding the historical narratives and traditions in light of the evidence about tikanga. The evidence and submissions suggest the Ngāti Whātua Ōrākei tribal historical narrative and tradition is clear, coherent, and consistent in terms of the tikanga of Ngāti Whātua Ōrākei. The objections of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te Ākitai Waiohua are different tribal historical narratives and traditions. More information would be required to reconcile some aspects of their objections to the historical narrative and tikanga of Ngāti Whātua Ōrākei: the timing and nature of the
11 Notes of Evidence (NOE) 2153/5.
raupatu in the mid-18th century; whether Te Taoū maintained undisputed control thereafter; whether Marutūāhu iwi other than Ngāti Pāoa had cultivations and settlements in the area at issue in the 18th and 19th centuries; whether Te Ākitai Waiohua survived the raupatu with their tribal structures substantially intact; whether Ngāti Rau maintained a presence in the area at issue during the 1820s and 1830s and the significance of that; and the effect of iwi returning to the isthmus with the protection of Te Wherowhero.
[42] Whether Ngāti Whātua Ōrākei, Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te Ākitai Waiohua wish to reconcile their tribal histories and traditions and whether it occurs in a tikanga consistent manner, is up to them. It seems to me to be better explored on a marae than by a Court. I do not attempt to reconcile the different historical narratives and traditions in the judgment.
[43] Marutūāhu Rōpū, Ngāi Tai ki Tāmaki and Te Ākitai Waiohua also object to the claim by Ngāti Whātua Ōrākei that their conception of ahi kā roa and mana whenua is valid in terms of the tikanga of other iwi and at tikanga Māori. At the heart of the dispute over the claim of Ngāti Whātua Ōrākei to ahi kā roa and mana whenua is whether mana whenua is an exclusive or non-exclusive concept at tikanga. It is also directly related to the commonality of tikanga regarding mana whenua across iwi and hapū.
[44] The evidence of the pūkenga and other witnesses called by Ngāti Whātua Ōrākei is clear and consistent in their account of take raupatu, reinforced by take tupuna, followed by ahi kā roa in creating mana whenua. It is clear and consistent in saying that mana whenua is generally exclusive, except in fringe or contested areas or by agreement; it is not shared, particularly in a group’s heartland or core rohe. Ngāti Whātua Ōrākei say their tikanga is entirely consistent with tikanga Māori more generally. Ngāti Pāoa supports that in the terms noted above. So do Ngāti Kuri and Ngāi Te Rangi.
[45] I have no doubt that mana whenua, as the strongest “interest” at tikanga in the “heartland” or ūkaipō of an iwi, and central to their identity, is currently a real and robust aspect of the tikanga of Ngāti Whātua Ōrākei and some, perhaps many, but not
necessarily all, other iwi. This is consistent with the evidence of the independent pūkenga called by Ngāti Whātua Ōrākei from outside Tāmaki Makaurau: Tāmati Kruger, Paul Meredith and Charlie Tawhiao. The evidence supporting this in terms of the tikanga and tribal narrative and traditions of Ngāti Whātua Ōrākei is given by their own witnesses and is consistent with the published and unpublished writings of the late Professor Sir Hugh Kawharu.
[46] As Mr Majurey emphasises, Sir Hirini Mead’s definition of mana whenua suggests acknowledgement of the mana whenua of an iwi is important to its validity at tikanga. With the exceptions of the Kawenata Tapu with Ngāti Pāoa, and acknowledgement of Ngāti Whātua Ōrākei at Ōrākei, their neighbouring iwi in these proceedings do not recognise or acknowledge the mana whenua of Ngāti Whātua Ōrākei over the whole area over which they claim it. I take the evidence from Ngāti Whātua Ōrākei to be saying that recognition by other iwi is not a pre-requisite for Ngāti Whātua Ōrākei to have mana whenua in terms of their own tikanga. Whatever effects a Court declaration might have, including regarding the legal incidents of mana whenua, it is difficult to see how it could purport to constitute or require recognition of mana whenua by another iwi if that would be inconsistent with their own tikanga and/or their own tribal traditions and history. That would be inconsistent with the nature of tikanga and its relationship to the law declared by courts.
[47] Counsel for Marutūāhu Rōpū, Ngāi Tai ki Tāmaki and Te Ākitai Waiohua (who came to be known as Te Toru in the hearing) point to the evidence of their pūkenga that, for them, mana whenua can often be shared and is not an exclusive concept. There are also other authoritative statements, by Sir Edward Taihakurei Durie and the Waitangi Tribunal that doubt the nature of mana whenua in general. The evidence in these proceedings shows that mana whenua can be exclusively held by one iwi or hapū and that it can be shared. Importantly, the pūkenga collectively agree that tikanga is shaped by the historical experiences of an individual iwi. No doubt mana whenua is more easily shared for some iwi than others, in light of their experiences.
[48] No one here argues that mana whenua obviates the other layers of customary interests of other iwi at tikanga. As acknowledged by Ngāti Whātua Ōrākei, the obligations arising from having mana whenua include a tika consideration of, and
looking after, others’ customary connections. That might involve discussions of how best to protect an urupā, acknowledgment that the history of another iwi in that area will not be forgotten, or even agreeing that land within their heartland could be provided to another iwi, akin to a tuku whenua. But at the same time, the evidence is that it can be valid at their own tikanga for an iwi such as Ngāti Whātua Ōrākei to conceive of mana whenua as the strongest tikanga interest, held by one iwi, overriding aspects of the interests of other iwi while simultaneously owing responsibilities in respect of those interests. It is valid at their tikanga, shaped by their historical experiences, including the impact of colonisation.
[49] The pūkenga called by Te Toru were clear and consistent about the underpinning principles of their tikanga and the implications for the claim by Ngāti Whātua Ōrākei. It may be that there are subtle distinctions between tikanga and the application of tikanga through different iwi traditions and history, as Mr Mahuika submits. Or there may be a distinction between the underlying values and principles of tikanga and what manifests if a tribe adheres to them, applying those principles, as Mr Warren submits. But either way, I accept the evidence of Harry Mikaere, James Brown, David Wilson Takaanini and Dr Korohere Ngāpō that the tikanga and tribal histories and traditions of Ngāti Maru and Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te Ākitai Waiohua do not accept that their interests in Tāmaki Makaurau are subject or inferior to the mana whenua of Ngāti Whātua Ōrākei.
[50] I see no reason why the tikanga or application of tikanga by Ngāti Whātua Ōrākei and the other iwi may not differ regarding mana whenua. The High Court and Court of Appeal have recognised that there can be variability in the nature of mana whenua. And the learned authors of Te Mātāpunenga say:12
The phrase mana whenua has been held to link political responsibilities (the protection of people, particularly members of a tribal group under traditional leadership) and other land-related authority. However the inherent ambiguity of the expression mana whenua has made its use and that of the complementary expressions noted above a vexed issue, with the appropriateness of their use challenged by Māori and other commentators.… According to some accounts, this mana may be shared by a number of separate
12 Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) [Te Mātāpunenga] at 178.
tribal entities, but others would deny that such divided sovereignty is permissible.
[51] So, the tikanga, tribal history and tradition of some iwi, including Ngāti Whātua Ōrākei, include mana whenua as the strongest form of tikanga interest that can be and is held by one iwi in Tāmaki Makaurau. The tikanga and tribal histories and traditions of other iwi, such as Ngāti Maru and Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua, does not recognise that.
[52] The Court has discretionary jurisdiction to grant declarations about tikanga. I am satisfied the evidence demonstrates that Ngāti Whātua Ōrākei has mana whenua based on take raupatu and ahi kā over the area in which they claim it, according to their own tikanga and based on their tribal historical narrative and tradition. Ngāti Whātua Ōrākei seeks a declaration of its rights at tikanga and law. The issues have been sufficiently traversed to support that. I would be inclined to make such a declaration but on the basis that it speaks only of the tikanga and historical tribal narrative and traditions of Ngāti Whātua Ōrākei. My preliminary view is that such a declaration would not unduly cut across other proceedings or legislation, which decide different issues. Such a declaration might be worded as follows:
Ngāti Whātua Ōrākei currently have ahi kā and mana whenua in relation to the area identified in Map 1 of this judgment in central Tāmaki Makaurau, with all the obligations at tikanga that go with that, according to the tikanga and historical tribal narrative and tradition of Ngāti Whātua Ōrākei.
[53] I reserve leave for the parties, and particularly Ngāti Whātua Ōrākei, to make further submissions, if they wish, on whether the Court should exercise its discretion to make a declaration in those or similar terms.
[54] Marutūāhu Rōpū, Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do not seek declarations regarding their tikanga. They oppose the declaration sought by Ngāti Whātua Ōrākei that goes further than the tikanga of Ngāti Whātua Ōrākei. I am satisfied, on the basis of the evidence I have heard, that Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te Ākitai Waiohua do not accept, based on their tikanga and tribal histories and traditions, that their interests in Tāmaki Makaurau are subject or inferior to the mana whenua of Ngāti Whātua Ōrākei. On that basis, I am not prepared to make a declaration that suggests their tikanga, tribal histories and
traditions are consistent with those of Ngāti Whātua Ōrākei, which might be inferred from the declaration sought by Ngāti Whātua Ōrākei. But the parties may also consider that a single declaration about the tikanga of Ngāti Whātua Ōrākei leaves too much room open for inferences about their positions. Accordingly, I also reserve leave for the parties, and Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki and Te Ākitai Waiohua in particular, to make submissions on whether I should make a declaration along the following lines:
The tikanga and historical tribal narratives and traditions of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua do not currently recognise that Ngāti Whātua Ōrākei have ahi kā and mana whenua, as those concepts are conceived of by Ngāti Whātua Ōrākei, in relation to the area identified in Map 1 of this judgment in central Tāmaki Makaurau.
[55] I observe that the conflicts between iwi in these proceedings over these issues are long-standing. I am sure the means of resolving them are available, at tikanga, to them. I note that counsel for every iwi participating in the hearing stated they would prefer a tikanga-based settlement. They may consider the Court can assist to facilitate a tikanga-based resolution process, given my observations in part V regarding such options as appointment of one or more pūkenga by consent. I reserve leave for any iwi participating in these proceedings as parties or interested parties to make a joint application for such assistance with any of the disputed issues of applying tikanga canvassed in this judgment. I also reserve leave for them to apply for a declaration by the Court to reflect a joint position about any of these disputed issues, reached by a tikanga-consistent process, to be recorded by the Court.
ETreaty Settlements and overlapping interests today
[56] Part VII of the judgment outlines the experience of Ngāti Whātua Ōrākei with Bastion Point protests and its Ōrākei claim to the Waitangi Tribunal. The claim was filed in 1984, the Tribunal reported in 1987 and implementing legislation was passed in 1991. In 1993, Ngāti Whātua Ōrākei lodged a broader claim with the Waitangi Tribunal alleging historical breaches of the Treaty by the Crown and started direct negotiations with the Crown in 2003.
[57] In 2006, Ngāti Whātua Ōrākei and the Crown signed an Agreement in Principle (AIP) to settle these claims. The proposed settlement involved financial redress as
well as cultural redress including vesting in a joint management body maunga such as Maungakiekie (One Tree Hill), Maungawhau (Mt Eden) and Puketapapa (Mt Roskill) and the body advising on the managment of Owairaka (Mt Albert Domain), Ohinerau (Mt Hobson Domain), Te Kopuke (Mt St John Domain), and Taurangi (Big King Recreation Reserve). There were to be statutory acknowledgements of the cultural, spiritual, historical and traditional association of Ngāti Whātua Ōrākei with the latter four sites plus Otahuhu (Mt Richmond Domain), North Head Historic Reserve and defence land at Kauri Point. There would also be a 100 year right of first refusal for Ngāti Whātua Ōrākei over surplus lands of the Crown and other agencies in the area over which they claim mana whenua.
[58] Concerns about the implications of the AIP prompted a claim to the Waitangi Tribunal by Ngāti Te Ata, Ngāi Tai ki Tāmaki, Marutūāhu, Te Kawerau ā Maki and those Te Taoū not descending from Tuperiri. The Tribunal conducted an urgent inquiry and issued its findings in June 2007. The Tribunal strongly criticised the Crown’s approach in taking an explicit view of the strength of the customary interests of Ngāti Whātua Ōrākei. It said that “for an external agency like the Office of Treaty Settlements to determine that the interests of only one group should be recognised, and the others put to one side, runs counter to every aspect of tikanga we can think of”.13 It recommended the draft settlement be put on hold.
[59] In 2008, the new Minister for Treaty of Waitangi Negotiations, Hon Christopher Finlayson, turned for advice, about settling claims in Tāmaki Makauru, to the first Minister to hold that portfolio, the Rt Hon Sir Douglas Graham. Sir Douglas proposed an option, requiring “considerable courage, a generosity of spirit and a desire to work together in the common interest”, of putting mana whenua to one side and renegotiating the AIP. Accordingly, and impressively in terms of the negotiations that must have been required, in February 2010 the Crown and 13 iwi and hapū entered into a Collective Agreement which was reflected in a Deed in 2012 and legislation in 2014. It vested specified maunga and motu of Tāmaki Makaurau in the iwi and hapū collectively. The maunga are co-governed by them and the Auckland Council. The iwi and hapū have a RFR for 170 years where properties are chosen on the basis of a
13 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Tāmaki Makaurau Settlement
Process Report (Wai 1362, 2007) [Waitangi Tribunal Tāmaki Makaurau Report] at 96–97.
rotating carousel. In the course of negotiations, the Crown told iwi and hapū that it would not agree to one iwi having a veto over redress it would offer to individual iwi for their iwi-specific settlements. The Ngāti Whātua Ōrākei settlement was renegotiated and other iwi also now have settlements with the Crown and implementing legislation.
[60] At the heart of the issues that give rise to these proceedings is how, in negotiating the settlement of historical claims under the Treaty of Waitangi with one iwi, the Crown should approach the overlapping interests of other iwi. I heard extensive evidence about the Crown’s policy about overlapping interests, the Red Book, which is outlined in Part VII of the judgment. I heard about proposals on this topic by the Iwi Chairs Forum. In December 2021, after the hearing, I received the Crown’s latest revised policy on overlapping interests, on which all parties had the opportunity to make submissions.
[61] I also heard detailed evidence about the Crown’s offers of Treaty redress to Ngāti Pāoa, the Marutūāhu Rōpū and Te Ākitai Waiohua, and how it dealt with the overlapping interests of Ngāti Whātua Ōrākei, including their claim to mana whenua. The Supreme Court has ruled that Ngāti Whātua Ōrākei could pursue its claim for declarations as to its rights, but it could not challenge the proposed transfers of specific properties to other iwi, which would be implemented by legislation. They have been treated in these proceedings as illustrative examples of the application of the Crown’s overlapping interests policy. I have also heard about the Waitangi Tribunal’s 2019 report regarding the application of the Crown’s policy in Hauraki.
FTikanga obligations in settling Treaty claims
[62] In part VIII of the judgment I start by considering submissions about three parameters of the Court’s jurisdiction in relation to the declarations Ngāti Whātua Ōrākei seek about the legal obligations of the Crown in relation to tikanga. First, I find that the complex multi-faceted nature of Treaty settlements does not necessarily cloak government decisions from the constitutional process of judicial review for unlawfulness or from declarations of legal right but bears on what relief should be granted. Second, I do not transgress the Supreme Court’s finding, that Ngāti Whātua
Ōrākei cannot challenge the decisions to legislate to transfer particular properties. Third, I consider that the Court has jurisdiction, probably confined to determining issues of law, to correct errors of law in Crown guidance and to correct manifestly unreasonable decisions to issue guidance. I note that individual examples of the application of a policy are not the policy itself.
[63] I make a series of findings about the law as it relates to tikanga, the Crown’s powers, the Treaty of Waitangi, law, the overlapping interests policy, and the Treaty settlement context in Tāmaki Makaurau.
[64] Tikanga governs and binds iwi and hapū and is developed over time by iwi and hapū. The Crown is not an iwi or hapū. The Crown is not bound to follow tikanga in and of itself and does not develop tikanga. Neither does tikanga directly modify the common law or statutes which bind the Crown. In turn, common law and statutes do not directly modify tikanga, though they can provide for its effects and incidents in New Zealand’s legal system.
[65] There is a respectable argument that the Crown’s power to enter settlements with iwi and hapū of its breaches of the Treaty of Waitangi is primarily a prerogative power, linked to the Crown’s exercise of its prereogative power to enter the Treaty of Waitangi in 1840. Otherwise, it reflects the rights and powers of the Crown as a natural person. Either way, the Crown exercises a power that cannot override rights and liberties prescribed by law, whether they be conferred by statute, common law or tikanga. Tikanga and the Crown’s residual or prerogative power are are systems of internal self-regulation. Neither interferes with the legal effect of the other.
[66] There can be little doubt that article two of the Treaty of Waitangi encompasses the Crown’s protection of tikanga. Tikanga is integrally woven with rangatiratanga; the two dimensions give life to each other. The Crown’s undertaking to protect rangatira, hapū and tāngata katoa in the exercise of tino rangatiratanga in article two inherently extends to their operation of tikanga. The nature of the Crown’s obligations in relation to tikanga, when they arise under the Treaty, are the orthodox obligations as held by the Courts since the Lands case in 1987 and accepted and endorsed by successive executive administrations and Parliaments.
[Land Deed, 20 October 1840] Land Deed signed by George Clarke (Chief Protector of the Aborigines) and Kawau, Tinana, Reweti Tamaki and others (Chiefs of Ngāti Whātua) in respect of 3,000 acres between Mataharehare, Opou and Maungawhau (20 October 1840).
[Law Commission Māori Custom and Values] Te Aka Matua o te Ture | Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001).
[Law Commission Succession Issues Paper] Te Aka Matua o te Ture | Law Commission Review of Succession Law: Rights to a person’s property on death | He arotake i te āheinga ki ngā rawa a te tangata ka mate ana (NZLC IP46, 2021).
[Law Commission Succession Report] Te Aka Matua o te Ture | Law Commission He arotake i te āheinga ki ngā rawa a te tangata ka mate ana | Review of Succession Law: Rights to a person’s property on death (NZLC R145, 2021).
[McBurney Mahurangi Report] Peter McBurney Traditional History Overview of the Mahurangi and Gulf Islands Districts (Commissioned by the Mahurangi and Gulf Islands District Collective Committee, March 2010).
[O’Malley Te Wherowhero] Vincent O’Malley Pōtatau Te Wherowhero and Tāmaki Makaurau
(Waikato-Tainui College for Research and Development, October 2014).
[Red Book 2018] Office of Treaty Settlements Ka Tika ā Muri, Kā Tika ā Mua: Healing the past,
building a future (June 2018)[Red Book 2021] New Zealand Government “Overlapping interests” (21 December 2021). [Tūhaere Ancestors] Paul Tūhaere A Paper Giving an Account of the Genealogy of the Ancestors of Ngāti Whātua (undated) handwritten version.
[Walzl Te Ākitai Waiohua] Tony Walzl Te Ākitai Waiohua Customary Interests Report (presented and abridged by Te Ākitai Waiohua Iwi Authority).
[Williams He Aha Te Tikanga Māori] Joseph Williams He Aha Te Tikanga Māori (Law Commission, 1998).
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