Update on Wai 85: Incorporation and Settlement Trust appeals High Court decision

Update on Wai 85: Incorporation and Settlement Trust appeals High Court decision “Justice and a fair settlement for Wairarapa Moana Incorporation owners and all of Ngàti Kahungunu ki Wairarapa Tàmaki Nui-à-Rua – means taking our case to the Court of Appeal,” said Kingi Smiler, Chairman, Wairarapa Moana Incorporation.

We are particularly concerned that the High Court failed to take account of the view of the Pouàkani Claims Trust, representing the hapù associated with the land to which WMI is seeking return, and who expressly supported our application.

Wairarapa Moana has 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 tìpuna. 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.

The Ngàti Kahungunu ki Wairarapa Tàmaki Nui-à-Rua Settlement Trust has also lodged an appeal on these issues, and other matters raised by the Judgement.

We expect this appeal process to take approximately six months to reach a conclusion.

Kingi Winiata Smiler Chairman

Wai 85: 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.

We took this action 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.

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.

The Crown’s treatment of Wairarapa Māori is “a remarkable story of injustice”… “a trail of tears”.1 Justice Cooke, High Court, Wellington 30 March 202 1 Paragraph [87] Judgement of Cooke J, Mercury NZ Ltd v the Waitangi Tribunal, 30 March 2021

Summary of the Judgement by Justice Cooke, High Court

Is the Preliminary Determination Subject to Judicial Review?

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.

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

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

FIRST ISSUE:

SECOND ISSUE:

FOURTH ISSUE:

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

Is the Determination Inconsistent with Tikanga and the Treaty?

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.

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.

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 “wellfounded 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.

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

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 Wairarapa Moana Incorporation Committee of Management lodged an appeal of this High Court decision on 30 April 2021 on the following legal matters: • That the High Court was wrong in finding that the phrase “return to Màori ownership” in the Treaty of Waitangi Act 1975 means restoring the exercise of mana whenua over the land. The law does not refer to customary ownership or ownership as at 1840.

• The High Court was wrong on matters of tikanga and replacing the High Court’s view with those of the expert body, the Waitangi Tribunal.