Supreme Court confirms Wairarapa Moana Incorporation application for resumption
can proceed Tēnā koe On 7 December 2022, the Supreme Court issued its decision on our appeal of the High Court judgement.
The key points of the Supreme Court decision are: •
The Waitangi Tribunal’s preliminary determination as to the suitability of Wairarapa Moana as a recipient of the Pouākani land was not final and may be revisited in the Tribunal’s ongoing iterative process. The Waitangi Tribunal must continue with the process to consider this.
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Although mana whenua is “an unquestioningly important” tikanga principle, it must be applied in context. The Pouākani case is almost unprecedented and the Incorporation’s lack of mana whenua at Pouākani does not disqualify it in this case.
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Even within its own tikanga framework, mana whenua can adapt to new circumstances and the Waitangi Tribunal was able to conclude that mana whenua need not be the controlling tikanga, because other principles are in play. The Tribunal is uniquely placed and has the necessary expertise to understand and comprehend the nuances in mana whenua and how it may apply in a particular context.
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The High Court was therefore wrong to find that granting resumption to an iwi without mana whenua over the land is inconsistent with tikanga and Treaty principles.
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The relevant prejudice in this case is that arising from the loss of the Wairarapa lakes, the Pouākani land swap and the compulsory acquisition of the Maraetai development site. Despite the Tribunal’s earlier view, on reconsideration, resumption might still be a proportionate response to this somewhat narrower class of prejudice.
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The Supreme Court’s decision on this point rebuts and directly contradicts several earlier statements made on behalf of the Crown (and our Settlement Trust) (a) that the Supreme Court decision could not be relevant to whether the Incorporation is a suitable recipient for resumption and (b) that resumption would not be possible in light of the Tribunal’s finding on proportionality.
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The Supreme Court found, consistently with the High Court’s view and the Tribunal’s before that, that Mercury does not have standing in the Waitangi Tribunal. The legislation was clear on this point, State enterprises are excluded from being heard on resumption claims. A copy of the Supreme Court judgement can be accessed here.