• The High Court declined to declare that Ngāti Whātua Ōrākei has mana whenua over specific areas of central Auckland, to the exclusion of all other iwi and hapū.
• Declarations could still be made (submissions pending) stating Ngāti Whātua Ōrākei has mana whenua according to their tikanga.
• The Court recognised tikanga - the "right way of doing things" in Te Ao Māori - as a “free-standing legal framework recognised by New Zealand law”. ­While it has some common aspects, tikanga is tailored and unique to each iwi and hapū.
• Tikanga can be a direct source of legal rights but the courts cannot make, freeze or codify tikanga, and should be careful not to approach tikanga from an English common law perspective.
• The judgment also provides further guidance for upcoming resource management law changes, where issues of overlapping tikanga may occur.

After 7 years of legal battle, Justice Palmer has, in a 280 page, 652 paragraph judgment, declined to recognise Ngāti Whātua Ōrākei's exclusive mana whenua in the Auckland region.^[1]

While this case involves the Minister for Treaty of Waitangi Negotiations, the judgment has been long awaited by other public decision-makers who engage with mana whenua issues. What can they take from this Homeric decision?

The length of the judgment reflects the complexity of the issues before the Court. In addition, there is still more to come: the Court has sought further submissions on a range of issues and there will likely be appeals. In the meantime, we have done our best to highlight the key features for decision-makers to consider here.

Background

This claim arose from the Crown's proposal to offer land in central Auckland to the Marutūāhu Collective - a group of five closely related iwi of Tainui waka: Ngāti Maru, Ngaati Whanaunga, Ngāti Tamaterā, Ngāti Pāoa and Te Patukiriri - as redress for breaches of the Treaty of Waitangi / Te Tiriti o Waitangi (Te Tiriti).

Ngāti Whātua Ōrākei’s claim challenged this proposal, arguing that they were the sole mana whenua for the land at issue and it was therefore inappropriate to return the land to other iwi. The claim was initially struck out by the High Court in 2017. Aspects of the claim were reinstated by the Supreme Court in 2018. In particular, Ngāti Whātua Ōrākei’s application for a declaration from the Court recognising its mana whenua in parts of the Tāmaki isthmus to the exclusion of other iwi was allowed to proceed. The Supreme Court held these issues were best dealt with at a substantive hearing: the case now heard and decided by Justice Palmer in the High Court.

Ngāti Whātua Ōrākei sought a declaration of their mana whenua in terms of tikanga, drawing on their ahi kā (continued occupation of the land). The Marutūāhu Collective (other than Ngāti Pāoa) along with Ngāi Tai Ki Tāmaki and Te Ākitai Waiohua disputed the claim of both mana whenua and ahi kā.

The Court’s findings

Justice Palmer undertook a wide-ranging survey of the manner in which tikanga has been recognised as a part of the laws of New Zealand for some time.

This survey is very helpful in itself for decision-makers engaging in this area. Based on this review and the evidence, Justice Palmer was satisfied that according to Ngāti Whātua Ōrākei’s own tikanga, they had mana whenua over the land in question. However, he declined to make a declaration that would suggest that the "tikanga, tribal histories and traditions” of other iwi were “subject or inferior to the mana whenua of Ngāti Whātua Ōrākei". Instead, his Honour recognised that tikanga was unique to each iwi.

A key takeaway of this case is that the Court recognised tikanga - the "right way of doing things" in Te Ao Māori - as a “free-standing legal framework recognised by New Zealand law”. Accordingly, tikanga can determine the outcome of a court’s application of a statute or the common law; and it can be the direct source of legal rights enforced by the courts. In terms of how the courts treat tikanga, Justice Palmer acknowledged that:

1. tikanga is based on tāhuhu he aratohu - "core principles that are common across most iwi/hapū"; but
2. each iwi/hapū develops and tailors the detail of their tikanga - contingent on their circumstances and histories;
3. the courts cannot make, unmake, codify or freeze tikanga;
4. the courts should be aware of unconscious bias when seeking to understand tikanga given judges are trained in the English common law; and
5. while courts can make declarations about tikanga, the critical question is "should" they?

Whether something is in accordance with tikanga is not provable to the civil standard of "on the balance of probabilities". Instead, the court must be satisfied that a consensus prevails within the iwi/hapū as to what the tikanga is. However, this becomes complex when there are overlapping claims - a feature of this case.

Justice Palmer declined to make any of the declarations sought but he:

1. was satisfied that a declaration could be made that Ngāti Whātua Ōrākei have mana whenua according to their own tikanga and historical tribal narrative and tradition; and
2. recognised other iwi also have interests over the Auckland region according to their own tikanga, tribal histories and traditions, which may be different to Ngāti Whātua Ōrākei.

His Honour further invited the parties to submit on these propositions and whether declarations should be made accordingly.

What does this mean for future Te Tiriti settlements and litigation?

In terms of the relevance of tikanga to the settlement process, Justice Palmer concluded that:

1. Article 2 of Te Tiriti requires the Crown to protect taonga, which includes tikanga;
2. where the Crown has Te Tiriti obligations, it must act reasonably, in good faith, with mutual cooperation and trust;
3. the Crown will need to take reasonable steps to understand, recognise and respect the particular tikanga of iwi or hapū; and
4. iwi/hapū may also owe Te Tiriti obligations to assist the Crown to discharge its duties to other iwi/hapū by engaging in tikanga-consistent processes about the status of properties at tikanga.

Depending on the context, we note that a similar requirement to engage with and protect tikanga could apply to other decision-makers. This is particularly challenging when tikanga is contested as between iwi and hapū.

However, as Justice Palmer observed, in resolving any tikanga disputes, it is not about only resolving the immediate problem. As the Ngāti Awa Raupatu report noted in 1999, the “preservation of relationships” between peoples in resolving issues is key. This stands in contrast to the English common law approach of resolving disputes where one party must ‘win’.

Resource management implications

This judgment (and any appeals from it) will also be relevant to decision-making under the RMA, and the upcoming reforms of the resource management system.

The exposure draft of the Natural and Built Environments Bill requires that the national planning framework and all plans must promote the objective or restoring and protecting “the relationship of iwi and hapū, and their tikanga and traditions, with their ancestral lands, water, sites, wāhi tapu, and other taonga”. This is similar to section 6(e) of the RMA, which often requires decision-makers to address issues of competing or overlapping tikanga. This judgment will provide further guidance for when hearing panels and the Environment Court should intervene, and if so, how those issues may be reconciled. In this regard we think the need for decision-makers to “understand, recognise and respect the particular tikanga of iwi or hapū” is of particular importance.^[2]

Special thanks to Tim Bremner, Sam Hart and Amarind Eng for their assistance in writing this article.