Waitangi Tribunal powers to order return of land to iwi could not be used to poach land off another iwi, the High Court decided in a ruling which has ramifications for a court battle brewing over commercial control of Maori assets across the Auckland isthmus.
Ngati Kahungunu seeks Waitangi Tribunal orders to recover land as compensation for Treaty of Waitangi breaches. It is generally accepted that Ngati Kahungunu were treated shamefully by colonial settlers. The iwi lost one of its major food sources when settlers illegally drained wetlands around Lakes Wairarapa and Onoke to create farmland. Government restrictions prohibited leasing of forestry formerly under control of Ngati Kahungunu, forcing its sale as the only means of extracting economic benefit. As compensation, Ngati Kahungunu were given land in south Waikato; land hundreds of kilometres away from the iwi’s rohe and land which was inaccessible and virtually worthless. Some 800 hectares of this land was later compulsorily acquired for development of the Maraetai dam. As a final insult, the level of compensation paid was reduced because creation of a lake behind the dam improved access to their remaining Maraetai land holding.
At the Waitangi Tribunal, Ngati Kahungunu is seeking compensation totalling some $800 million including return of title to Ngaumu forest and the bed of Lake Maraetai. Mercury Energy objects; a successful claim will see it obliged to pay commercial rent to Ngati Kahungunu for use of land on which its hydro-electric assets sit. In a preliminary report, the Tribunal indicated it is sympathetic to Ngati Kahungunu demands for ‘resumption.’ Resumption means return of land to Maori ownership.
The High Court ruled Tribunal powers to order ‘resumption’ of land currently held by state-owned organisations like Mercury Energy cannot be used to take land within the rohe of one iwi as compensation for Treaty of Waitangi breaches suffered by another iwi. Land around Lake Maraetai sits within the rohe of Raukawa and Tuwharetoa. Tribunal powers to order return of land to specific iwi can only be used to remedy Treaty breaches suffered by that iwi which originally occupied the land, Justice Cooke ruled.
Land privately owned cannot be subject of a ‘resumption’ order; the rules apply only to land held by the state or by state-owned organisations.
Mercury NZ Ltd v. Waitangi Tribunal – High Court (30.03.21)
21.059