High Court judge Denis Clifford has told the Waitangi Tribunal to get on with resolving Maori claims relating to thousands of hectares north of Gisborne instead of putting the matter in the ‘too hard’ basket.
In 2 proceedings heard last November, The Proprietors of Mangatu Blocks Inc chairman Alan Haronga, the Te Aitanga a Mahaki Trust & David Brown challenged, as unlawful, decisions of the Treaty of Waitangi Tribunal declining & adjourning applications for the resumption of Crown forest lands.
The claim, dating back to 1992, is for the return to Mangatu of 8626 acres (3491ha) the Crown acquired from Mangatu in 1961, which now form a quarter of the Mangatu State Forest. Other parties are now also involved in the claim.
The Waitangi Tribunal reported to the Government in December 2013 on applications for binding recommendations relating to the Mangatu Crown forest-licensed lands, after the Supreme Court had directed it in 2011 to hear the Mangatu Incorporation’s application for the remedy of its claim in respect of the Crown’s 1961 purchase of 8522 acres in the Mangatu 1 block.
The tribunal said in that report: “The Crown purchased the 1961 land from the Mangatu Incorporation to establish a forest to prevent & control hill country erosion & downstream flooding. “In its report, Turanga tangata turanga whenua: The report on the Turanganui-a-Kiwa claims, the Waitangi Tribunal found that the Crown ‘failed to act reasonably & with the utmost good faith when it acquired the Mangatu forest lands from the Maori owners’ and therefore breached the principles of the Treaty of Waitangi.”
The tribunal said in the closing chapter to its 2013 report, The pathway to settlement: “It would be far better for the applicants to negotiate with the Crown for as large a settlement package as possible, and then agree with each other as to how to divide any proceeds, than for the tribunal to impose a solution by way of a binding recommendation.”
The tribunal recommended mediation between claimants and a return to negotiations with the Government: “In the event that settlement negotiations are not successful, we reserve leave to the claimant groups to apply to the tribunal for a comprehensive remedies process.”
However, Justice Clifford said in his judgment out yesterday: “As I read the Mangatu Remedies Report, there are essentially 2 reasons why the tribunal adjourned the Mahaki Trust’s application. First, negotiations with the Crown for comprehensive relief were ongoing and so, reflecting its ‘remedy of last resort’ approach, the Mahaki Trust’s efforts & energies were better spent in that forum. The tribunal would need to undertake a comprehensive remedies inquiry before making a binding recommendation.
“Second, the task of deciding as amongst the various claimant groups was a difficult one. I think the extracts from Haronga that I have cited above demonstrate the error in those reasons. That is, the tribunal is not entitled to defer to the fact of Crown negotiations to adjourn a resumption application.
“If a claimant invokes the tribunal’s adjudicatory jurisdiction under section 8HB then, subject to a narrow power of deferral under section 7A and the discretion under section 8HB(1)(b), a decision is required. That conclusion is reinforced by the context of the Forestry Lands Settlement Agreement.
“The bargain was, put simply, that the Crown could sell the forests and that specific claims for the return of forestry lands would be expedited and, where successful, the economic benefit of the sale proceeds would be paid to the successful claimants, subject to the 5-100% range in schedule 1.”
Justice Clifford said the tribunal was at odds with the Supreme Court’s approach to reason that a significant factor in deciding not to make binding recommendations as regards the Mahaki Trust “was that it had not conducted a comprehensive remedies inquiry. That reflects the tribunal’s erroneous ‘last resort’ reasoning. It also seems a little hard on the Mahaki Trust, given that it had filed a comprehensive claim, and the tribunal had (quite understandably in light of Haronga) limited itself to the Mangatu Lands resumption issue.
“In other words, and supplementing the process for non-binding recommendations, a claimant was entitled to invoke the greater protection of section 8HB(1). To indeed be greater, that protection cannot be made subject to non-binding recommendations which the Crown may or may not accept. Nor can it be made subject to Crown settlement policy.
“Secondly, and perhaps even more clearly, the difficulty in making the apportionment decision as between successful claimants of land & compensation is not a reason for the tribunal not to undertake the exercise and make that decision. That was its statutory role.
“The Supreme Court was of the view that the tribunal had considerable flexibility in fashioning the terms & conditions of binding recommendations to achieve an appropriate apportionment. That it was a hard task was beside the point.
“Finally, the transfer of land & compensation are matters which can, after the event, be taken account of by the tribunal when making further recommendations for compensation. But it is not the tribunal’s role, as I read Haronga, to assess whether or not implementing the bargain from the Forestry Lands Agreement meant that a successful claimant would, in effect, receive more than had been indicated by the parameters of a Crown settlement proposal and by the tribunal’s recommendatory view of how compensation offered by the Crown might properly be apportioned between overlapping claims.”
Attribution: Judgment, Mangatu Remedies Report.