Boundaries (Wai 785)

Update on the judicial review sought by Te Rūnanga o Ngāi Tahu following Wai 785

Ngāi Tahu has defended its northern boundary across the generations. These efforts continue to the present day with the latest action being a judicial review, sought by Te Rūnanga o Ngāi Tahu, into the Waitangi Tribunal's Report following the Wai 785 Inquiry.

18 August 2009

This pānui has a brief update on the judicial review proceeding Te Rūnanga o Ngāi Tahu took against the Waitangi Tribunal for its findings in Wai 785 the Te Tau Ihu Report. The Wai 785 report made findings that five of the iwi of Te Tau Ihu have customary rights within the Ngāi Tahu Takiwā. Te Rūnanga took the Tribunal to court to have those findings set aside on the basis that the Waitangi Tribunal should not have made findings which were inconsistent with the WAI 27 Tribunal and the Māori Appellate Court (MAC) on the same matters. The judicial review was held in June this year. The court released their decision on Friday 14 August, which was not in favour of Ngāi Tahu on those points.

The case concerned a series of very narrow legal arguments about whether the Māori Appellate Court decision of 1990, that found Ngāi Tahu to have exclusive rights within the Takiwā, was binding on the Waitangi Tribunal in the Wai 785 hearing. The court ultimately found that the Tribunal is not legally bound by the findings of Māori Appellate Court decision for the following reasons:

  • Section 6 (A) of the Treaty of Waitangi Act does not limit the Tribunal’s power to make the findings. The underlying reasoning is based on a complex analysis of the previous litigation over the last 20 years on the Māori Appellate Court decision;
  • That neither the Wai 27 Report nor any of the previous decisions of the courts prevented the Tribunal looking into Te Tau Ihu claims within the Ngāi Tahu Takiwā;
  • The Tribunal is not estopped (i.e. prevented because of the binding nature of the MAC decision) because the Tribunal’s role is recommendatory only.

While the decision is disappointing, and Te Rūnanga disagrees with the findings of the Court, the exclusivity of the Ngāi Tahu Takiwā is not put at risk by this decision. The essence of the court decision is that the Tribunal was not prevented from investigating the claims and making the findings it did, but it did not say that the Tribunal findings were correct. In fact, the Court reaffirmed two important matters. The first is that the findings of the Waitangi Tribunal are not binding (which includes both Wai 27 and Wai785). The second was that decision of the Māori Appellate Court, which found that only Ngāi Tahu held customary rights within our takiwā, was given legislative effect and that the legislation must prevail.

The office is currently analysing the decision and will present recommendations to Te Rūnanga on whether there are grounds to appeal the decision.

The decision will attract media attention, and Te Rūnanga has released the following statement in response:

"Te Rūnanga o Ngāi Tahu is naturally disappointed with the decision of the High Court," said Kaiwhakahaere Mark Solomon.

"We believe it is unfortunate that after almost 20 years of litigation, the Waitangi Tribunal can attempt to unpick a decision of the Māori Appellate Court that has been twice upheld by the Privy Council and recognised in legislation in the Te Rūnanga o Ngāi Tahu Act 1996 and Ngāi Tahu Claims Settlement Act 1998.

"This continues to be a lengthy process which has consumed a lot of our time and resources and we would like to see it come to an end. We have always maintained our support for our northern neighbours to reach Settlement with the Crown and will continue to do so by actively seeking the best outcome for all parties concerned," he said.

"It is part of the responsibility of this generation to uphold our tribal territory, as recognised in statute, and protect our established customary rights. Ngāi Tahu will now take the time to carefully consider the decision of the court before deciding whether to appeal or make any further comment," said Solomon.

Background

The recent history of boundary defence started with the Ngāi Tahu claim to the Waitangi Tribunal in 1987, which prompted the iwi of Te Tau Ihu, from the top of the South Island, to challenge the northern Ngāi Tahu Takiwā boundary. The matter was referred to the Māori Appellate Court who upheld Ngāi Tahu's exclusive mana whenua, and after lengthy and multiple review challenges in various courts by the northern iwi, the Privy Council upheld and affirmed the decision of the Māori Appellate Court.

Wai 785

Despite the decision of the Maori Appellate Court in 1990, which has survived two challenges to the Privy Council, and statutory declaration of the Ngāi Tahu Takiwā, Te Tau Ihu iwi lodged claims before the Waitangi Tribunal (Wai 785) that included assertions of customary rights within the Ngāi Tahu Takiwā. This was not unexpected. The Wai785 Tribunal took four years to deliberate and delivered a finding (Wai 785 No. 2) that six of the eight iwi had customary rights in the Ngāi Tahu Takiwā, which overlapped with the acknowledged rights of Ngāi Tahu:

  • Rangitāne and Ngāti Toa were found by the Tribunal to have customary rights on the East Coast north of Waiau-Toa; and
  • Ngāti Apa, Ngāti Rarua, Ngāti Tama and Te Ātiawa were found to have rights on the West Coast from Kawatiri northward.

Te Rūnanga o Ngāi Tahu's Response to Wai 785

In November 2007, Te Rūnanga o Ngāi Tahu lodged a judicial review of the Wai 785 on the basis that the Tribunal had made significant errors of law in fact in finding that the iwi of Te Tau Ihu had rights within the Ngāi Tahu Takiwā. As explained above the court released their decision on Friday 14 August 2009.

Iwi Relationships

Recognising that Ngāi Tahu and the iwi of Te Tau Ihu share Te Waipounamu, and that there are points of commonality sourced in whakapapa and shared aspirations, Kāti Waewae and Kāti Kurī have been actively engaging with the Te Tau Ihu iwi to explore and strengthen relationships moving forward. In parallel, Te Rūnanga has been working on issues related to the Te Tau Ihu Treaty negotiations, including the Aquaculture Settlement, Fisheries Settlement and freshwater.

The iwi of Te Tau Ihu and Te Rūnanga o Ngāi Tahu will continue to seek ways to enhance these relationships, however, the exclusive mana whenua of Ngāi Tahu within the Takiwā is an immovable bottom line that is understood by Te Rūnanga, Kāti Kurī and Kāti Waewae as an ancestral inheritance that must be maintained mō ake tonu.