February 2013 Māori Law Review

Tribunal declines to use binding powers in recommending remedies for Ngāti Kahu

The Ngāti Kahu Remedies Report (pre-publication edition)

Waitangi Tribunal (Wai 45, 2013)

4 February 2013

The Waitangi Tribunal has declined to exercise its powers to compel the Crown to transfer property to Ngāti Kahu to remedy the iwi’s well-founded historical Treaty claims. While the Tribunal found that redress for the wrongful dispossession of 70 per cent of Ngāti Kahu lands by 1865 is long overdue, the circumstances of wider Treaty settlement negotiations in the far north did not warrant the use of its binding powers.

Download the Ngāti Kahu Remedies Report here.

Overview and result

The Waitangi Tribunal has released its report on an application by Ngāti Kahu – an iwi of the Te Hiku (far north) region – for the return of land within their tribal area and other assets, together totalling $260 million.

The application of Ngāti Kahu asked the Tribunal to use its binding powers, which would have required the Crown to return a series of properties to the iwi, including former Crown properties now in private ownership.

The Tribunal found that redress for the wrongful dispossession of 70 per cent of Ngāti Kahu lands by 1865 is long overdue. However, the circumstances of wider Treaty settlement negotiations in the far north did not warrant the use of its binding powers.

Background

In 2008, the five iwi of Te Hiku – including Ngāti Kahu – entered into collective negotiations with the Crown, agreeing to a division of Crown-owned properties and other assets. However, in 2011, Ngāti Kahu departed from the collective negotiations to seek a different kind of settlement, the ultimate outcome of which was their application to the Tribunal, in which they sought properties earmarked for return to other iwi.

Discussion

The Tribunal found that binding orders to return those properties to Ngāti Kahu would have upset the fine balance of existing agreements and impending Treaty settlements of other Te Hiku iwi.

In addition, the Tribunal found that it was unable to recommend a total settlement package in the order of that sought by Ngāti Kahu, which was well in excess of settlements already achieved up and down the country.

But the Tribunal also found that, because Ngāti Kahu had suffered significant prejudice through Crown Treaty breaches, non-binding recommendations were warranted. The Tribunal recommended a package of redress including various forms of cultural redress, a commercial quantum based on a total figure of $42.518 million, and the return of a series of properties of significant commercial and cultural value within their rohe.

The Tribunal recommended the Crown seek to re-engage with Ngāti Kahu and make an offer based on the range of redress proposed in the report.

Note

This is a preliminary note about the Tribunal’s remedies report for Ngāti Kahu claims. An in-depth critique of the Tribunal’s report by Karen Feint was published in April 2013.