Image: Tina Tiller
Image: Tina Tiller

ĀteaApril 29, 2022

The High Court’s ‘groundbreaking’ Ngāti Whātua Ōrākei judgment, explained

Image: Tina Tiller
Image: Tina Tiller

The Auckland High Court declined to declare Ngāti Whātua Ōrākei as having sole mana whenua rights in Auckland. Here’s a rundown of what it all means.

After an 11-week-long hearing last year, in the Auckland High Court yesterday morning (April 28), Justice Matthew Palmer delivered a summary of what he described as a “groundbreaking” and “very long” judgment concerning a claim by Ngāti Whātua Ōrākei against the Crown. 

The case is part of a seven-year legal battle by Ngāti Whātua Ōrākei to assert its exclusive legal rights as mana whenua in central Auckland. Core to the case is a challenge to the Crown’s Treaty settlement cross-claims policy. 

What’s the background?

The dispute stems from late 2014, where without consultation with Ngāti Whātua Ōrākei, the Crown offered land parcels within central Auckland as part of a redress package to Marutūāhu collective, a confederation of five iwi. Ngāti Whātua Ōrākei says it already has exclusive mana whenua status (meaning historical and territorial rights to land) in the two areas located in central Auckland suburbs Parnell and Grafton that were offered to the collective. Ngātiwai and Tauranga Moana have also responded in protest to the same settlement that includes overlapping claims to land in their rohe.

Ngāti Whātua Ōrākei maintains that the Crown has disregarded their exclusive mana whenua and ahi kā in these areas by offering them to other iwi. They say that no one else has a credible claim in these areas. However, Marutūāhu argued they have mana whenua interests in the same areas because within their tikanga, mana whenua status can be shared. 

How did this end up in the High Court?

According to Ngāti Whātua Ōrākei, hui had taken place between the two conflicted iwi in an attempt to resolve the situation, but a resolution could not be reached. In 2018 the Supreme Court granted Ngāti Whātua access to the High Court to recognise the overlapping Treaty claim. 

So what’s a cross-claims dispute?

A cross-claims or overlapping-claims dispute arises when multiple iwi lay intersecting claims to the same taonga, which is usually an area of land, as redress for a Treaty settlement. It’s not the first time these have created disputes between groups. In this case, both Ngāti Whātua Ōrākei and Marutūāhi collective have claims to the same two pieces of land in central Auckland.

How can different groups have customary claims to the same land?

The history and tikanga around customary interests is complicated and differs between iwi and hapū groups. Both Ngāti Whātua Ōrākei and Marutūāhu have differing claims around these areas of land. The hearings last year involved oral evidence on these claims from 35 witnesses, tikanga and history experts, Crown officials, and iwi representatives. At the heart of the dispute in court was whether mana whenua status was an exclusive or non-exclusive concept in tikanga.

Ōrākei marae (Image: Hannah Peters/Getty)

What did Ngāti Whātua argue in the High Court?

They stated that they have exclusive mana whenua status in Tāmaki Makaurau. This claim is based on a complicated history in the area and an assertion that they have maintained ahi kā roa: the concept of keeping the home fires lit through intergenerational and continuous occupation, use and permanent control of land. While they acknowledged that other iwi and hapu had important interests in the area, they said their mana whenua status is not shared with other groups – especially within their “heartland” or “core rohe”. 

Ngāti Whātua argued in court that overlapping Treaty claims shouldn’t happen without full consideration of tikanga. They also sought a declaration of exclusive mana whenua and ahi kā status from the High Court. 

What did Marutūāhu argue?

Marutūāhu didn’t challenge that central Auckland was Ngāti Whātua’s heartland, but they claimed other iwi also have customary interests or mana whenua in the area. They submitted that mana whenua rights to Auckland are more complex than having one mana whenua group over a vast area and instead argued that shared mana whenua status not only exists, but is common in te ao Māori. 

Interesting – so what was the judgment in the end?

Justice Palmer described the issues raised by the case as ones that are “groundbreaking and concern history, tikanga, the Treaty settlement processes and the extent to which the court should intervene in all those areas”. 

In his 288-page judgment, Palmer said neither the Crown nor parliament determines mana whenua or ahi kā, that tikanga is decided on by iwi and hapū. He reaffirmed that while tikanga has core elements across iwi and hapū, iwi and hapū groups have their own unique tikanga. So, essentially mana whenua status can be exclusive or shared depending on the tikanga of the relevant groups.

Ngārimu Blair (Photo: RNZ)

The judge said the court would be prepared to make a declaration that Ngāti Whātua Ōrākei has mana whenua in accordance with their own tikanga and tribal narratives, but declined to make a declaration that Ngāti Whātua holds exclusive mana whenua status as it would potentially expunge how other relevant iwi conceive of mana whenua status. “The application of tikanga including the nature and extent of mana whenua in Tāmaki Makaurau is contested between different iwi. Given that, making the declaration sought by Ngāti Whātua Ōrākei would provide a misleading impression of what the court considers as a proper understand of tikanga in Tāmaki Makaurau or the implications of tikanga for Treaty settlements in Tāmaki Makaurau,” the judgment read.

Ngāti Whātua spokesperson Ngārimu Blair said that while “neither side can claim victory”, the iwi is happy with the judgment. He said 400 iwi members walked past the two central sites in question as they descended on the court yesterday morning to hear the judgment – a testament to how important and close to home the case is to the iwi.

Did the judgment say anything about the Crown?

It sure did. Blair said, “We’re here to hold the Crown to account in the cross-claims process and we believe the judge gave them a stern scolding.” 

Justice Palmer warned that the Crown needed to do a better job of understanding the impact of decisions on tikanga for individual iwi and that the process for overlapping settlements needed to be improved. “The Crown will need to take reasonable steps to understand, recognise and respect the tikanga of iwi and hapū, and the Crown will need to actively protect the ability of iwi and hapū to exercise their tikanga,” he said. Last year, RNZ reported that the minister for Treaty of Waitangi negotiations Andrew Little said prior findings by the Waitangi Tribunal recognised the Crown needed to improve how it dealt with overlapping claims.

Palmer encouraged iwi and hapū to use tikanga processes to help resolve these issues around tikanga, as opposed to relying on the courts.

Joe Pihema (Photo: supplied, additional design: Tina Tiller)

Whose fault is all this?

Hundreds of years of sustained land acquisition by the Crown paired with limited opportunity for redress means that (unsurprisingly) overlapping claims have left iwi battling each other for limited resources. Speaking to The Spinoff at a hīkoi protesting the cross-settlement process in February last year, Ngāti Whātua spokesperson Joe Pihema said the actions of the government had created an “unstable and volatile environment” among iwi. “It’s at a point where iwi and hapū who were related are now going to court against each other,” he added.

Senior lecturer at Victoria University School of Law Carwyn Jones agreed, saying, “There’s a problem in the way that the settlement process incentivises groups to make those assertions and to claim exclusive rights in order to get the best recognition of those rights, whether or not that was entirely consistent with how those rights and relationships might have operated within a te ao Māori framework.”

“There’s a structural problem there,” he added, explaining that iwi and hapū are often backed into a corner where they need to turn to the judicial system to assert rights. “The settlement process creates tensions within communities as well as between different iwi.”

What next?

The parties have been given three months to file submissions in response to Justice Palmer’s decision. Blair said Ngāti Whatūa Ōrākei is working through the document to consider its next steps. It’s likely the decision will be appealed.

Jones said issues like these around tikanga are being raised in the courts increasingly often,“in all kinds of ways, raising similar kinds of questions about who holds mana whenua or where boundaries are or how they intersect. 

“So although you’re dealing with the specifics of mana whenua in Tāmaki [Makaurau] in the context of Treaty settlements in this case, there’s lots of examples that we’re seeing come forward of the courts needing to engage with tikanga in a much more sophisticated way than they have in the past.” 

“We’re sort of coming to the tail end of the settlements of historical claims, but there’s still plenty of things to be finalised,” Jones said. The decision could, he said, “change dynamics, particularly around how the Crown engages in the settlement process where there are overlapping interests”.

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