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.
The decision, allowing Ngāti Whātua Ōrākei to continue to argue their legal rights as mana whenua in the Tāmaki isthmus and continuing to establish the place of tikanga in the common law of New Zealand, also makes it easier to challenge ministers’ decisions.
The precedent that Crown conduct in negotiating Treaty settlements is judicially reviewable has been set, and this has far-reaching effects for government and those who engage with it – as well as for iwi and hapū. Downstream, it may also affect the way local government consults with Māori.
Ngāti Whātua Ōrākei’s Treaty settlement
Ngāti Whātua Ōrākei’s Treaty settlement with the Crown was concluded by legislation in 2012. The settlement recognised widespread Crown alienation of Ngāti Whātua Ōrākei’s land in the Tāmaki isthmus, notably including 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 – the first alienation of many. By 1855, Ngāti Whātua Ōrākei was basically landless, with devastating social, economic and spiritual implications for the iwi.
In Ngāti Whātua Ōrākei’s Treaty settlement, the Crown promised to rebuild a relationship with Ngāti Whātua Ōrākei and atone for its historical sins based on the principles of the Treaty.
Further settlements under the “overlapping claims policy"
The Crown is presently negotiating further Treaty settlements with other iwi in the Tāmaki isthmus and, in doing so, is applying the “overlapping claims policy”. When multiple iwi lay claim to a particular area, the Crown encourages them to resolve it among themselves; if they can’t, the Crown then makes a decision. Many iwi view this as a pragmatic approach rather than one based on historical accuracy or tikanga.
Without consultation, in late 2014, the Crown offered land to Ngāti Paoa and the Marutūāhu Collective in areas where Ngāti Whātua Ōrākei asserts mana whenua (the transfer properties). Importantly, Ngāti Whātua Ōrākei’s Treaty settlement had already recognised its interest in these areas.
Ngāti Whātua Ōrākei's judicial review claim
Ngāti Whātua Ōrākei launched
judicial review proceedings against the Minister of Treaty of Waitangi Negotiations
(then Christopher Finlayson) to challenge the Minister’s decision to transfer
particular properties to Ngāti Paoa and the Marutūāhu Collective.
To evade this challenge, the
Crown un-made its decisions, saying the offer of properties was to be subject
to Parliamentary approval. It then sought to strike out Ngāti Whātua Ōrākei’s claim
on the basis that it was covered by the “non-interference principle”, which
prohibits the courts from dictating what Parliament can and cannot consider.
That strategy proved
fruitful in the High Court, which struck out Ngāti Whātua Ōrākei’s claim. The Court of
Appeal upheld that decision. Both Courts relied on the non-interference
principle, saying that Ngāti
Whātua Ōrākei’s rights would only be affected by
legislation and so the Crown’s conduct could not be challenged.
The Supreme Court says iwi should have access to the courts
The decision in a nutshell
The result of the decision is that central government, local governement and the Waitangi Tribunal may have to take care to consider the relative rights of iwi and hapū when making decisions affecting Māori. For the Office of Treaty Settlements (OTS), this will require a reconsideration of its approach to Treaty settlements. Iwi and hapū with material, ongoing rights may be able to judicially review OTS's conduct during Treaty settlement negotiations moving forward.
The Supreme Court, unlike the lower courts, held that Ngāti Whātua Ōrākei should be permitted to return to the High Court to have its substantive rights established.
Office of Treaty Settlements held accountable – limiting the non-interference principle
The Court unanimously limited the scope of the non-interference principle. It did so for two reasons:
- First, the function of the courts is to hear and make declarations about rights; correspondingly, iwi ought to have access to the courts where they consider their status rights in an area are in issue. The courts should be cautious about washing their hands of this constitutionally important function.
- Second, the non-interference principle exists to protect freedom of expression in Parliament, and, as an extension of that, to ensure Ministers are free to put what they please before Parliament. It should not be extended beyond this function. Just because a decision of the Executive may potentially be overtaken by legislation does not mean it is unreviewable.
This limitation of the non-interference principle has significant consequences for the Crown when it negotiates Treaty settlements. OTS will have to take care to ensure its procedures properly take into account, among other things:
- the principles of the Treaty of Waitangi, and
- the rights of settled iwi and hapū.
This decision allows Ngāti Whātua Ōrākei to
return to the High Court for a full trial with detailed evidence on ahi kā and
mana whenua. Factual findings on customary interests will undoubtedly feed into
how local government consults with Ngāti Whātua Ōrākei and other iwi in the
future. Such findings will feed directly into what iwi entities are appropriate
to consult for different projects.
The trial will also include a head-on challenge
of the overlapping claims policy. With many iwi and hapū calling for reform of
the overlapping claims policy, it remains to be seen how the Crown will respond
to this judgment. The threat of judicial review by iwi will certainly be of
central concern and may tilt the scales towards reform.
Chapman Tripp partners Nick Wells and Justin
Graham, senior associate Laura Fraser, and solicitors Rachael Jones and Aditya
Vasudevan, have represented Ngāti Whātua Ōrākei at all levels of the courts in