Case Brief - Mercury NZ Ltd v Waitangi Tribunal

April 21, 2021

Summary

The High Court ordered the Waitangi Tribunal to reconsider claims for resumption of land. Significantly, Cooke J ruled that claims for resumption were only available for lands located within the claimant iwi’s traditional rohe and that it was not open to the Tribunal to ignore tikanga when considering the claims.

Background

This is the first case where the Courts have considered the meaning and effect of sections 8A and 8HB of the Treaty of Waitangi Act 1975 about the process for ‘resumption’ of land.
Resumption is a process where the Waitangi Tribunal can order that ownership of lands the Crown previously transferred to State Owned Enterprises (‘SOEs’) be returned to Māori ownership. These sections were enacted following the landmark Lands case (New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA)) at a time when the Crown was transferring many of it assets to SOEs. The Tribunal’s resumption jurisdiction has hardly ever been exercised.

The Case

Mercury NZ Limited is a SOE. They and others applied for judicial review of the Tribunal’s preliminary decision to exercise its powers of resumption to return two areas of land, Pouākani and Ngāumu Forest, to Ngāti Kahungunu. The land at Pouākani is currently used by Mercury for hydro electric power generation and is not in the traditional rohe of Ngāti Kahungunu. The Ngāumu Forest is currently used for commercial forestry and is in Ngāti Kahungunu’s traditional rohe.

Cooke J ruled there was sufficient basis for the Court to exercise its jurisdiction over preliminary decisions of the Tribunal in circumstances where it has reached firm conclusions on key facts and issues that will form the basis of its final decision.

However, Mercury did not have a right to be heard by the Tribunal. Section 8C limits the parties who may be heard on resumption to the claimant, the Crown and any Māori who satisfy the Tribunal they have an interest greater than the general public. This did not include Mercury. This approach is consistent with the preamble to the Treaty of Waitangi (State Enterprises) Act 1988 which enacted safeguards “precluding State enterprises and their successors in title from being heard by the Waitangi Tribunal on claims relating to land or interests in land so transferred”.

The Tribunal proposed to use the resumption powers to ‘return’ land that was never in the traditional rohe of Ngāti Kahungunu. Cooke J found that this went beyond the scope of what the Act envisaged. The words “relates to”, “well-founded” and “return” in the Act are all interconnected with the effect that only land which was within an iwi’s traditional rohe maybe returned. Resumption compensates for specific loss of mana whenua, not for Treaty breaches generally.

Consistent with this, Cooke J found that the provisions need to be interpreted in accordance with tikanga, which forms part of New Zealand’s common law and, in some situations “will be the law, rather than merely being a source of it.” The Tribunal did not have the discretion to depart from tikanga or to make a decision that would give rise to a fresh breach of the Treaty, which would be the effect of the decision to ‘return’ Pouākani to Ngāti Kahungunu.

The Court also found that the Tribunal calculated compensation due under section 36 of the Crown Forests Assets Act 1999 incorrectly.

Result

The preliminary decision was set aside and the Tribunal was ordered to reconsider the claims for resumption in light of this judgment. Cooke J clarified that the Tribunal was not being ordered to make the preliminary decision again, but that it had the discretion to decide the best way to deal with the claim.

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