It's time for Ngāti Whātua Ōrākei to stop protracted court action and work with other Iwi

Paul Majurey: It is five years since the High Court struck out a similar claim by Ngāti Whātua Ōrākei. Photo / Dean Purcell

It is well beyond time for Ngāti Whātua Ōrākei to work together with the other iwi of Auckland, rather than more expensive and prolonged litigation by appealing its recent High Court failure to the Court of Appeal.

In April, the High Court rejected Ngāti Whātua Ōrākei's claim for exclusive mana whenua over central Auckland (an area of approximately 109 square kilometres), instead recognising the many iwi connections to the city.

It is five years since the High Court struck out a similar claim by Ngāti Whātua Ōrākei. On appeal, the hapū was permitted to pursue a limited claim which resulted in the recent decision.

The case was also the culmination of a 20-year campaign by Ngāti Whātua Ōrākei to try to persuade successive governments and courts they have exclusive mana whenua status in central Auckland. They failed to do so with their Treaty settlement negotiations in the mid-2000s and have now failed again at the High Court.

Although the complex and contested history of Tāmaki Makaurau is reflected in its very name, Ngāti Whātua Ōrākei have tried to constrict the past into a "single mana whenua tribe" narrative, just as the Native Land Court conveniently did for the colonial government in the 19th century.

Ngāti Whātua Ōrākei's litigation strategy has had the unintended consequence of effectively unwinding the infamous decisions of 1860s' Native Land Court Chief Judge Fenton who only recognised the ancestors of Ngāti Whātua Ōrākei, despite widespread opposition at the time, and since, from the Marutūāhu and Waiohua tribes.

The current claim was opposed by other mana whenua tribes of central Auckland – the Marutūāhu Iwi (Ngāti Paoa, Ngāti Maru, Ngāti Whanaunga, Ngāti Tamaterā and Te Patukirikiri), and the Waiohua iwi of Te Ākitai Waiohua and Ngāi Tai ki Tāmaki.

Other iwi also wanted to join the opposition but could not afford the legal expenses or risk of adverse costs awards that are a feature of the High Court system.

All the Ngāti Whātua Ōrākei declarations were rejected. The 284-page decision carefully set out how each of the tribes have different histories and tikanga and none should be considered inferior to the other. Despite the judgement's clear findings and a plea for the tribes to sort these issues out on the marae and not the courtroom, Ngāti Whātua Ōrākei has now appealed to the Court of Appeal.

As in other regions, Ngāti Whātua Ōrākei's claims of exclusivity have been used to oppose Treaty settlements, trying to block the Te Ākitai Waiohua and Marutūāhu redress in central Auckland.

The High Court was very careful to follow the Supreme Court's earlier ruling that the Courts cannot interfere with Treaty settlements which will be effected through legislation, given that is the proper role of Parliament and not the courts.

It is now time for those Treaty settlements to move to closure. The reason why Ngāti Whātua Ōrākei is able to spend many millions on top lawyers is that they settled their claims in 2011. With the explosion in urban land values since, their asset base from that settlement provides the resources to fund endless litigation. Conversely, the delay to other tribes' settlements denies them a financial base.

One of the many ironies in all this is that my Marutūāhu people made public submissions endorsing Ngāti Whātua Ōrakei's Treaty settlement which included very valuable lands in the North Shore (outside their exclusive claim area). Meanwhile, our settlement languishes as their costly litigation strategy grinds on.

There is another way. Between 2009-2014, the tribes of Tāmaki worked together in the Tāmaki Collective and achieved a momentous collective Treaty settlement that led, among other things, to establishment of the Tūpuna Maunga Authority (and active restoration of the mauri of the iconic Maunga) and the operation of a commercial regime that has seen hundreds of new homes constructed and is transforming the face of Tāmaki Makaurau.

I remain optimistic that whanaungatanga and wise heads will once again prevail and the settlements of Marutūāhu and other tribes will now proceed. Not that it is needed, but I hope it is with the support of our Ngāti Whātua Ōrakei whanaunga.

Paul Majurey (Marutūāhu) is an iwi leader, independent director and senior lawyer, and chairs the Tūpuna Maunga Authority. He represented Marutūāhu in the High Court proceedings.