The Supreme Court has ruled in favour of Wairarapa Moana Incorporation, which could force the Crown to return hundreds of acres of land in the Waikato.
The decision, released yesterday, could force the return of Waikato land, currently occupied by a multi-million dollar Maraetai Power Station.
The land is commonly referred to as the Pouakani lands.
However, if Ngati Kahungunu’s separate settlement with the Crown is passed into law, Wairarapa Moana’s ability to take back the Pouakani lands could be quashed.
The Pouakani lands have not been included in Ngati Kahungunu’s Treaty Settlement, so if it is passed into law, Wairarapa Moana’s fight over the Pouakani lands could be lost.
Ngati Kahungunu’s settlement is now in its final stages and is due for its third parliamentary reading.
The Pouakani lands had been given to Ngati Kahungunu by the Crown as compensation for the historical taking of South Wairarapa’s lakes.
The Waitangi Tribunal made an extraordinary preliminary finding in 2020 that the land should be returned to Wairarapa Maori despite them not being mana whenua [the original inhabitants] of the Waikato region.
The government challenged the tribunal’s decision in the High Court and won.
The High Court determined that allowing land to be resumed by an iwi without mana whenua would be a breach of tikanga and the Treaty of Waitangi.
The Supreme Court said that the High Court found, in relation to the Pouakani land, that by directing that the land be transferred to an iwi that had no mana whenua status, conflicted with the rights of the iwi that did, and was inconsistent with tikanga [Maori customary practices or behaviours] and the principles of the Treaty of Waitangi.
It said if the interpretation of the High Court was upheld, the return of the land to Wairarapa Maori would be unlawful.
“We have found this to be an incorrect statement,” the Supreme Court said.
The Supreme Court said whether mana whenua should prevail over other tikanga principles in the circumstances of the resumption applications was itself a tikanga question that had yet to be answered.
“It does not follow from the importance of mana whenua that it is the only relevant tikanga principle or that it must be applied irrespective of context.”
The recent ruling will be an important consideration for the Waitangi Tribunal as it deliberates on its final recommendations regarding Wairarapa Moana’s claim.
The Supreme Court said as a result of its finding, the appeal by Ngai Tumapuhia-a-Rangi and the cross-appeal by Mercury Energy, which owns the power station, were dismissed. Following the decision, the Waitangi Tribunal has the power to make a binding recommendation to the Crown, forcing them to return the land, under a power called resumption.
The tribunal has never fully exercised its resumption powers.
