Wai 45 Ngāti Kahu Remedies Report on the binding powers of the Waitangi Tribunal

Introduction

On 4 February 2013 the Waitangi Tribunal released the Wai 45 Ngāti Kahu Remedies Report (“report”). The report is focused on an application to the Waitangi Tribunal by Ngāti Kahu for binding recommendations or remedies, to the Crown to redress prejudice that it has caused Ngāti Kahu. The Inquiry and report are significant for Māori claimants and other interested parties as it is one of a few instances where the Tribunal has fully considered its unique jurisdiction to make recommendations which are binding upon the Crown in the context of the current Treaty claim landscape. 

Background to the binding powers of the Waitangi Tribunal

The Waitangi Tribunal is a permanent commission of inquiry and its role is to hear claims by Māori against the Crown concerning breaches of the Treaty of Waitangi. The Waitangi Tribunal has the ability to find that claims are well founded and make non-binding recommendations to the Crown to compensate for, or remove the prejudice suffered by a claimant group. 

In limited circumstances however, where a claimant group is held to have well founded claims, the Tribunal has the ability to make binding recommendations for the return of certain Crown owned lands to a claimant group. The lands available for resumption are Crown Forest Land that is subject to a Crown forestry licence and lands owned by a state-owned enterprise or a tertiary institution, or former New Zealand Railways lands that have a section 27B memorial (or notation) on the certificate of title advising that the Waitangi Tribunal may recommend that the land be returned to Māori ownership. 

The Tribunal in the Ngāti Kahu Remedies Report described its power as “exceptional” as a recommendation that land be resumed will become binding on the Crown after 90 days, unless the Crown and the successful applicant negotiate a different arrangement.¹  The Tribunal also noted that its power grants the Tribunal “considerable discretion” with very little guidance as to how the powers should be exercised.²

In its 37 year history the Waitangi Tribunal has only once, in the Turangi Township Remedies Report in 1998, exercised its powers of binding recommendation. In this Inquiry the Tribunal made a binding recommendation that a discrete piece of land belonging to Ngāti Turangitukua be returned to the hapu. 

Background to the Ngāti Kahu remedies application

Ngāti Kahu is an iwi from the top of the North Island. Their journey toward the settlement of their historic Te Tiriti o Waitangi claims spans over a 25 year period. 

The historical claims of Ngāti Kahu and other Te Hiku iwi were considered by the Muriwhenua Inquiry between 1990 and 1994. The prejudice claimed by Ngāti Kahu was the loss of 70% of their ancestral lands by 1865, due to pre-Treaty (1840) land transactions to the Crown. Ngāti Kahu claimed that such early and severe land loss is the cause of significant and on-going damage to the economic and cultural well-being of Ngāti Kahu. Of particular importance is that the Ngāti Kahu claims were held to be well founded (the first requirement of a remedies application) in the Muriwhenua Land Report in 1997. 

Since then the Crown has mandated five iwi, known as the Te Hiku forum, to participate in both individual and collective Treaty negotiations with the Crown. Three of those recognised iwi, Te Aupouri, Ngai Takoto and Te Rarawa have recently signed Deeds of Settlement with the Crown. However, in spite of over a decade of negotiation with the Crown, Ngāti Kahu has been unable to agree to a final settlement package.

Ngāti Kahu has twice sought to invoke the binding powers of the Waitangi Tribunal as an alternative pathway to achieve a Treaty Settlement. On the first occasion in 2007 the Tribunal directed that Ngāti Kahu and the Crown return to negotiations. These negotiations resulted in Ngāti Kahu and the Crown signing an Agreement in Principle in 2008. 

Negotiations between Ngāti Kahu and the Crown again faltered and in July 2011 Ngāti Kahu sought to revive their earlier application. The application calls for the Tribunal to remedy the prejudice suffered by Ngāti Kahu for their well-founded pre-1865 Treaty of Waitangi claims through binding orders, among others, that the Crown return all resumable properties within the iwi. 

Findings and recommendations

The current Tribunal affirmed that the Crown’s actions in the far north – so soon after the signing of the Treaty – have had lasting effects on Ngāti Kahu, who remain impoverished to this day. The Tribunal went on to say that the Crown is obliged to provide a significant package of redress to Ngāti Kahu to remedy the prejudice they have suffered. However the Tribunal did not go so far as to make the binding recommendations sought by Ngāti Kahu. 

In reaching its findings the Tribunal says it was required to balance the circumstances in this case including (among others): 

• The complex interplay of customary rights in the area under consideration; 
• The Treaty settlements which have been agreed or are in the final stages of negotiation between other Te Hiku iwi and the Crown; and 
• That other neighbouring iwi and hapu have yet to be heard by the Tribunal or to enter direct negotiations with the Crown.³

Ultimately the Tribunal determined that an exercise of its binding powers was unwarranted in the circumstances of this case. The central consideration upon which the Tribunal declined to grant binding recommendations was the on-going relationship of the five Te Hiku iwi. On this point the Tribunal noted that:⁴

"A well-established Treaty principle has it that the Crown should not, in remedying the grievance of one group, create a fresh grievance for another group. The Te Hiku Forum was designed to arrive at lasting Treaty settlements that received the agreement of all Te Hiku iwi. Enduring Treaty settlements can only be achieved if iwi whose rohe border and overlap each other, and who possess entwined ancestral connections, can be reasonably satisfied with their respective outcomes. Settlements are between Treaty partners, but they cannot be safely achieved in isolation from others."

The Tribunal did make a series of non-binding recommendations which it believes are comprehensive. The Tribunal believes that the recommendations provide for the restoration of the economic and cultural well-being of Ngāti Kahu. The recommendations include the return of a number of sites and suggestions for various governance arrangements that are intended to allow Ngāti Kahu to have a significant say in the administration of sites, as well as establishing relationships with local bodies and other institutions. The total settlement package recommended amounts to a commercial quantum of $42.518 million which falls well short of what was sought by Ngāti Kahu. 

The Tribunal’s recommendations are non-binding in nature, which means that the parties will be required to come to an agreement before a settlement is enacted. The Tribunal believes that it has provided a solid platform and specific direction to the parties about redress that should be made available to Ngāti Kahu, so as to allow a settlement to be achieved. The Tribunal concluded that its recommendations are to the Crown, “It is the Crown’s honour, not that of Ngāti Kahu, that must be restored by putting right the harm it has caused by serious breaches of the Treaty prior to 1865”.⁵

If you would like further information please contact Aidan Warren on 07 958 7426.

1. Waitangi Tribunal, Wai 45 Te Runanga o Ngāti Kahu Remedies Report (4 February 2013), 3
2. Waitangi Tribunal, Wai 45 Te Runanga o Ngāti Kahu Remedies Report (4 February 2013), 5
3. Waitangi Tribunal, Wai 45 Te Runanga o Ngāti Kahu Remedies Report (4 February 2013), 5
4. Waitangi Tribunal, Wai 45 Te Runanga o Ngāti Kahu Remedies Report (4 February 2013), xiv
5. Waitangi Tribunal, Wai 45 Te Runanga o Ngāti Kahu Remedies Report (4 February 2013), 171