Monday’s Supreme Court decision will reshape expectations on central Government, local Government and the Waitangi Tribunal on their approach to dealing with iwi interests, Chapman Tripp says.
The decision allows Ngāti Whātua Ōrākei to continue to argue their legal rights as mana whenua in the Tāmaki isthmus and continues to establish the place of tikanga in the common law of New Zealand, Chapman Tripp’s Hoa Rangapū Whakarae (chief executive partner) Nick Wells said.
“There are three key outcomes of this decision – first, the setting of the precedent that Crown conduct in negotiating Treaty settlements is judicially reviewable. Secondly, this case paves the way for it be easier to challenge ministers’ decisions. Thirdly, the rights of iwi should be considered when central or local Government deal with them. This third outcome becomes more interesting as the place of tikanga in the law continues to develop.”
Wells, along with Chapman Tripp partner and the firm’s national head of litigation Justin Graham and senior associate Laura Fraser, has acted for Ngāti Whātua Ōrākei since the start of the proceedings (from the High Court upwards).
On Monday, the majority of the Supreme Court allowed, in part, Ngāti Whātua Ōrākei’s appeal for a judicial review of the Crown’s conduct in negotiating the Marutūāhu Collective’s Treaty settlement – previously struck out by both the High Court and the Court of Appeal.
“However, Chief Justice Sian Elias went further, and allowed Ngāti Whātua Ōrākei’s appeal in its entirety, permitting Ngāti Whātua Ōrākei to continue their judicial review claim in the High Court to test their legal rights as mana whenua in the Tāmaki isthmus,” Wells said.
This victory follows Ngāti Whātua Ōrākei’s Treaty settlement with the Crown, concluded by legislation in 2012, which recognised widespread Crown alienation of Ngāti Whātua Ōrākei’s land in the Tāmaki isthmus.
“Ngāti Whātua Ōrākei’s gifting of 3,000 acres of land in central Auckland in 1840 (including Auckland CBD, Parnell and Ōrākei) to forge a relationship with the Crown is considered the first alienation of many, and by 1855, Ngāti Whātua Ōrākei was basically landless – carrying with it devastating social, economic and spiritual implications.”
The Crown is currently negotiating further Treaty settlements with other iwi in the Tāmaki isthmus and applying the “overlapping claims policy” –meaning when multiple iwi lay claim to a particular area, the Crown encourages them to resolve it amongst themselves.
“Many iwi consider this as a pragmatic approach, rather than one based on historical accuracy or tikanga.”
Wells said the now-permitted High Court proceedings will also include a head-on challenge of the overlapping claims policy with many iwi and hapū calling for reform.
“It remains to be seen how the Crown will respond to this judgment but the threat of judicial review by iwi will certainly be a concern and could tilt the scales towards reform,” he said.