By Māni Dunlop of RNZ
The High Court has declined to recognise that Ngāti Whātua Ōrākei has exclusive mana whenua rights in Auckland region.
After an 11 week hearing in 2021, the case is part of a seven-year legal battle by Ngāti Whātua Ōrākei to assert its exclusive legal rights as mana whenua.
Ngāti Whātua Ōrākei was also seeking declarations about the legal obligations of the Crown in relation to its mana whenua, however the Crown opposes those.
In a lengthy and somewhat irregular sitting today, Justice Palmer delivered an oral summation of his judgment in the High Court in Auckland.
Central to the case is a challenge to the Crown's proposal to offer land parcels within Auckland central to the Hauraki-Marutūahu Collective redress.
Many filed in to the courtroom as hundreds gathered outside the High Court in Auckland to hear the long-awaited judgment which the Judge described as a ground-breaking hearing.
The Judge ruled Ngāti Whātua Ōrākei has mana whenua in accordance with its own tikanga - but its tikanga did not extend to other iwi in the region seeking rights of recognition.
He determined that the claim of mana whenua over the land was disputed by other iwi, and therefore declined to make a declaration of Ngāti Whātua Ōrākei's sole mana whenua and ahi kā.
"The application of tikanga including the nature and extent of mana whenua in Tāmaki Makaurau is contested between different iwi, given that making the declaration sought by Ngāti Whātua Ōrākei would provide a misleading impression of what the court considers as a proper understand of tikanga in Tāmaki Makaurau, or the implications of tikanga for treaty settlements in Tāmaki Makaurau.
"I also find tikanga does not legally bind the Crown in itself so it follows that I do not consider the declaration sought by Ngāti Whātua Ōrākei regarding the obligations of the Crown will be accurate statements of the law but parties may consider my judgement gives rise to alternative declarations that should be made. I decline to make the declaration as sought by Ngāti Whātua Ōrākei."
Justice Palmer encouraged the parties to resolve disputes utilising tikanga Māori efforts as opposed to relying on the Courts to determine who has legal rights and to where.
"Whether Ngāti Whātua Ōrākei, Marutūāhu rōpū other than Ngāti Paoa, Ngai Tai Ki Tamaki, Te Ākitai Waiohua wish to reconcile their tribal history and traditions, and whether it consists in a tikanga consistent manner is up to them. It seems to me to be better explored on a marae than by a court. I do not attempt to reconcile the different historical narratives and traditions in the judgment."
Marutūāhu and other responding iwi, including Te Ākitai Waiohua, disputed the claim that mana whenua status was solely held by Ngāti Whātua Ōrākei.
"Ms Coates submits the affect of the declaration sought by NWO would be to expunge the mana whenua into other iwi including Te Aki Tai from the face of the Tamaki ishtmus. Te Ākitai Waiohua say that rights and interests in Tāmaki are more complex than one hapū being able to lay an impenetrable blanket with fixed absolute boundaries of mana whenua and ahikā over a vast area that has the effect of subordinating and/or ousting the customary interest and treaty settlement opportunities of other iwi and hapū," Justice Palmer ruled.
However, he continued that the court is inclined not to make declarations about the Crown's obligations but it invites submissions about whether it should make declarations along the lines that the duties of active protection of tikanga, and of acting reasonably and in good faith, with mutual co-operation and trust in relation to tikanga, will bear on Crown decisions affecting tikanga interests in a Treaty-settlement context.
"Accordingly, depending on the context, the Crown will need to take reasonable steps to understand, recognise and respect the tikanga of iwi and hapū, and the Crown will need to actively protect the ability of iwi and hapū to exercise their tikanga."
"There may be circumstances in which the balance of treaty considerations means the Crown has to make a decision in relation to treaty settlement that is inconsistent with tikanga of one iwi or another," Justice Palmer told the court.
Lawyer acting for Marutūāhu, Paul Majurey, says it's an important day and a significant, lengthy decision that they're still digesting.
"The court has emphasised the importance of tikanga of all iwi, Ngāti Whātua Ōrākei, Te Ākitai, Ngai Tai ki Tāmaki and Marutūāhu, and that's very important.
"There are some technical aspects that we need to work our way through, the judge has made a number of recommendations," Marjurey said.
Parties have been given three months to file submissions in response to Justice Palmer's decision.