Update on Wai 85: Outcome of High Court Judicial Review

Update on Wai 85: Outcome of High Court Judicial Review Tēnā koe Wairarapa Moana Incorporation (WMI) have recently received the judgement of Justice Cooke, High Court on the Judicial Review by Mercury New Zealand Ltd, the Crown, and the Raukawa Settlement Trust on the Preliminary Determination of the Waitangi Tribunal.

Summary of the Judgement by Justice Cooke, High Court FIRST ISSUE:

Is the Preliminary Determination Subject to Judicial Review?

YES. The Tribunal’s preliminary determination is reviewable, even though it is not a final decision of the Tribunal.

A Brief Recap WMI lodged an application to the Waitangi Tribunal seeking the return of the lands around the Maraetai Dam taken under the Public Works Act in the 1940s.

Our claim relates to the way in which the land was taken, and the non-treaty compliant compensation paid by the Crown at the time.

Ngài Tùmapùhia-à-Rangi soon after, lodged an application for resumption of the Ngàumu Forest.

Ngàti Kahungunu ki Wairarapa Tàmaki Nui-à-Rua Settlement Trust (Settlement Trust) subsequently lodged applications for both the Pouàkani and Ngàumu lands.

In its preliminary determinations report the Waitangi Tribunal indicated support for the resumption of the Maraetai power station land and improvements at Pouàkani and forest land at Ngàumu. However, it favoured the resumption of these assets to an entity that represents all of Ngàti Kahungunu ki Wairarapa Tàmaki Nui-à-Rua, even though not everyone has whakapapa to those lands or was party to our claims.

A judicial review by the High Court of this preliminary determination was then sought by Mercury New Zealand Ltd (the owners of the Maraetai Dam), the Crown, and the Raukawa Settlement Trust.

SECOND ISSUE:

Did Mercury have the right to participate in the resumption hearings?

NO. The relevant legislative provisions in the Treaty of Waitangi Act clearly intended that the current owners of the land (in this case Mercury) be excluded from the Waitangi Tribunal hearings process.

THIRD ISSUE:

Did the Tribunal Misinterpret the Resumption Powers in the Treaty of Waitangi Act 1975?

YES. This issue is about the link between the “well founded claim” and the “land”. The well-founded claim must concern the land sought to be returned.

The Waitangi Tribunal in their Preliminary Determination said the well-founded claims concerned all Crown actions that led to Ngàti Kahungunu ki Wairarapa Tàmaki Nui-à-Rua becoming virtually landless. The Tribunal went too far on this point.

Justice Cooke notes that our claim, Wai 85, is a wellfounded claim that relates specifically to the subject land.

THIRD ISSUE: CONTINUED

He agrees with the Tribunal though that the Treaty breaches arising from the Crown’s acquisition of title to Wairarapa Moana in 1896, the Crown’s failure to honour its promise to provide alternative land in the Wairarapa, and the provision of valueless and inaccessible lands in the central North Island are all part of a series of closely interlinked Treaty breaches.

Justice Cooke concludes that the Pouàkani lands are “eligible” for return.

FOURTH ISSUE:

Is the Determination Inconsistent with Tikanga and the Treaty?

YES, in Justice Cooke’s view directing the land be transferred to an iwi that has no mana whenua in the land conflicts with the rights of the iwi that do and is inconsistent with tikanga and the principles of the Treaty.

FIFTH ISSUE:

Interest on Statutory Compensation This issue specifically relates to Ngàumu Forests and the interest payable on the compensation. This challenge was upheld. The Tribunal’s preliminary determination was based on criticisms of the Crown’s Treaty settlement policies which Justice Cooke determined was not relevant.

The Waitangi Tribunal is now required to reconsider all these matters.

Committee of Management initial response The Committee of Management is disappointed the High Court has chosen to overrule the Waitangi Tribunal, an expert body well versed in tikanga and Treaty principle, by imposing its own view about tikanga and the Treaty.

This is despite Justice Cooke finding the Crown’s treatment of Wairarapa Maori is “a remarkable story of injustice” and the taking of the land at Pouàkani,

along with the related Treaty breaches, can rightly be considered by the Tribunal in exercising its resumption power. The Court went so far as to say it is, as we argued, “a trail of tears”.

Wairarapa Moana have always been respectful and acknowledged the land at Pouàkani is not within our traditional rohe. However, over time we have buried our people on this land, built a marae, and exercised kaitiakitanga and manaakitanga over our whenua at Pouàkani.

Successive generations have worked hard, to create a better future for our people as envisaged by our tipuna. It has become a home for many of our whànau.

The decision by the High Court effectively perpetuates the injustices we have been suffering for the better part of the last 130 years.

It is simply wrong to say our connection to the land at Pouàkani cannot be thought of in tikanga terms.

Why have WMI taken this action before the Tribunal and the Courts?

WMI lodged the application for the return of the Pouàkani lands because of the complete failure of the Crown to negotiate directly with the Incorporation for the settlement of Wai 85.

Another significant factor was the woeful inadequacy of the proposed settlement negotiated by the Settlement Trust.

Our actions are driven by the desire for redress, justice, and a fair settlement for Wairarapa Moana Incorporation owners and all of Ngàti Kahungunu ki Wairarapa Tàmaki Nui-à-Rua.

Next Steps I will update you again once the Committee of Management have had time to fully digest the judgement

by Justice Cooke of the High Court and consider next steps.

Nàku noa, nà Kingi Winiata Smiler Chairman