The deference being shown by the Waitangi Tribunal towards the Crown is becoming somewhat predictable of late, and the release of it most recent report is unlikely to stem the criticism that it is often failing to act on its core functions. Today I am going to take a look at the powerful, but as yet unused, ability of the Tribunal to order the resumption and return of land to Māori.
The historical origins of the power of resumption are well known, even if the mechanics of the system are not. Following the Lands Case in 1987, the Treaty of Waitangi Act and the State Owned Enterprises Act were amended to provide for the recognition of Māori interests in the transfer of land from the Crown to State Owned Enterprises. Māori were entitled to request a memorial be placed on the title of any land transferred to a State Owned Enterprise to the effect that the land was the subject of a claim for redress under the Treaty of Waitangi Act and that land could thus be resumed by the Crown to be included in any settlement agreement. The memorial on the title remained even if the land was sold into private ownership.
Furthermore, the Tribunal was, under section 8H of the Treaty of Waitangi Act, granted the power to make binding recommendations to the effect that such land should be resumed by the Crown and returned to the original Māori Hapū/Iwi owners.
This is a sweeping, and unparalleled power for the Tribunal to exercise. And its refusal to exercise this power demonstrates the limited functionality of the Tribunal within Aotearoa/New Zealand society. It is not through the lack of a good case that Tribunal refuses to make a binding recommendation of power, but rather through a lack of faith in its own standing and the ability of such a decision to withstand criticism. You do not need much of an imagination to appreciate the massive uproar from Pākehā who find their land being taken from them by the Crown (with full compensation no less) and returned to their rightful owners.
Which brings us to today, and the release by the Tribunal of its Ngāti Kahu Remedies Report. Late last year, Ngāti Kahu had sought both binding and non-binding recommendations from the Tribunal in relation to breaches of Te Tiriti o Waitangi identified by the Tribunal in its 1997 Muriwhenua Land Report. Included among this was the claim for the resumption by the Crown of 114 privately owned properties, all with memorials placed on their title under section 27B of the State Owned Enterprises Act.
The Tribunal’s reasoning for declining the application were numerous, and resembled the shotgun approach to legal analysis whereby you fire as many shots as you can and hope one sticks. Of primary concern was the fact that other Hapū within the rohe also claimed an interest in some of the properties over which resumption was sought, but this should not lead to an absolute denial of the claim. As an aside, the Tribunal and the Crown will readily point to shared and competing interests as a way to refuse a claim of resumption, but has in the past just as readily turned a blind eye to shared and competing interests in matters of mandating Iwi/Hapū representatives and the inclusion of land in settlement agreements.
The main issue here, leaving aside the relative merits of the claim by Ngāti Kahu, is that after 25 years, the impact of the Lands Case should be reassessed. It has always been considered a landmark decision for Māori rights in New Zealand, but appears to have little lasting legacy. Law is more than the formal, legislative, pronouncements and a piece of legislation is worthless if it is not enforced. While the Tribunal holds the power to resume land either held by State Owned Enterprises, or formerly held by State Owned Enterprises, its inability to exercise the power even one time over 25 years informs us a lot more about the balance of power in Māori-Crown relations than the Lands Case ever did.