A modern day muru

The Wairarapa Moana Lakes land claim illustrates how conclusively the Treaty settlement process can fail to resolve historical wrongs.

The Human Rights Commission is now intervening in the case, saying avenues to justice have been unfairly blocked. 

In this chapter from the newly released book of essays Te Tiriti o Waitangi Relationships (BWB), Metiria Stanton Turei explains the history of the claim, which in 2022 reached the Supreme Court.

It is a “remarkable story of injustice”, she writes.

But, as she argues here, there is an opportunity for a tikanga-based relationship between Māori and the Crown — to arrive at a more just and practical resolution and restore the mana of all the parties concerned.

 

Lakes Wairarapa and Ōnoke are vast wetland lakes in the Wairarapa region of the lower east of the North Island of Aotearoa New Zealand. They open into the South Pacific Ocean through Lake Ōnoke and can double in size to some 53,000 acres when in full flood.

For the iwi and hapū of the Wairarapa in the 19th century, the flooded lakes were a core source of food, wealth, weaving materials, trade and transport. In 1883, the Native Land Court awarded title of the lakes to 139 owners of Ngāti Kahungunu and Rangitāne.

However, the annual flooding of the lakes led to disputes between the lakeside Pākehā farmers and the hapū. The flooded lakes were critical to the economy of the hapū but inhibited the farming capacity. Pākehā farmers took it upon themselves to open the mouth of Lake Ōnoke, trespassing on Māori land to do so. The Crown supported the farmers and used the Public Works Act 1882 to create a permanent channel at Ōnoke.

The Māori owners raised repeated objections until, in 1896, in a negotiation between the Crown and Wairarapa rangatira Tamahau Mahupuku, the lakes were gifted to the Crown. In exchange, the Crown promised 3,000 acres of reserve sites around the lakes and that all hapū fishing rights would be upheld. The lakes’ ownership was transferred but the Crown delayed the reserves allocation, refusing to purchase available lakeside land for this purpose.

For over 10 years, the hapū asked the Crown to buy land at the edges of the lakes to fulfil the agreement. In 1916, the Crown finally offered the hapū land that was 400 kilometres north in South Waikato. It was known as the Pouākani block.

The Pouākani block was Raukawa land. It had come into Crown hands through a series of Treaty-breaching state interventions. Nearly 600,000 acres of Raukawa land was confiscated by Crown proclamation as punishment for the Waikato conflict in 1865.

Subsequent Native Land Court hearings alienated close to 80 per cent of Raukawa land in the Waikato basin by 1910. The Crown also confiscated 20,000 acres of the Pouākani block as repayment for the surveying costs incurred for the Native Land Court determinations that alienated the Raukawa lands.

Fifty years after the first Raukawa confiscation and nearly 20 years after the Lakes agreement, the Pouākani block was transferred by the Crown to the Wairarapa Moana hapū.

This transfer was not an honourable arrangement. The Pouākani land was landlocked and accessible only by many days’ river travel. The Crown did not build the promised roads into the area. It was pumiced ground and difficult to bring into productive use, even assuming whānau could afford to live there and work it. Wairarapa whānau were not able to make use of or reside on the land for nearly 40 years after the transfer. This meant the land remained inaccessible and undeveloped for those years.

In 1943, the Crown began the construction of the Maraetai dam and Mangakino township on the Pouākani land. The Wairarapa Moana owners were not told of this work until 1947.

In 1949, the Crown compulsorily acquired 787 acres of the Pouākani land for the Maraetai power station and an additional 683 acres for Mangakino township. Six years later, the Crown paid Wairarapa Moana hapū £510 (approximately $16,800 today) in compensation. The figure was low because the Crown argued there had been no “betterment” of the land by its Wairarapa owners in the years between its transfer to the hapū and its acquisition by the Crown.

The Crown’s actions with Wairarapa hapū and with Raukawa are a uniquely complicated series of Treaty breaches. The Waitangi Tribunal described the Crown’s actions in the Lakes agreement and Pouākani land deal as a “grievous breach of its obligations to act towards its treaty partner with the utmost good faith”.

The Raukawa confiscations and Native Land Court determinations were a repeated infringement of Raukawa rights. The Lakes agreement and the Pouākani land deal exacerbated that loss and distress against both Raukawa and Wairarapa hapū.

The complexity of this case remains in play. Raukawa and the Ngāti Kahungunu ki Wairarapa Tāmaki-nui-a-Rua Settlement Trust have both settled their historic claims with the Crown through the Raukawa Claims Settlement Act 2014 and the Ngāti Kahungunu ki Wairarapa Tāmaki-nui-a-Rua Claims Settlement Act 2022.

The two legislative instruments acknowledge the harm from the Lakes agreement and Pouākani land deal but do not compensate for it. Legislation has now extinguished any Pouākani land deal or Lakes agreement claim by either Raukawa or Wairarapa Moana hapū.

The extinguishment means that all Waitangi Tribunal claims regarding the Lakes agreement or the Pouākani land deal are concluded, and there are no current legal pathways for the claims to be resolved.

The Tribunal and the courts

The Waitangi Tribunal and the court considerations of the Lakes agreement and Pouākani land deal reflect the complexity of the Treaty breach.

In 2020, the Waitangi Tribunal issued a preliminary determination that led to a 2021 High Court appeal and then to the 2022 Supreme Court decision of Wairarapa Moana ki Pouākani Incorporation v Mercury NZ Ltd.

These three legal decisions arose from the Wairarapa Moana Incorporation’s application to the Waitangi Tribunal for a resumption order under section 8A of the Treaty of Waitangi Act 1975.

In 2003, the Wairarapa Moana Incorporation filed an application for the return of the land taken by the Crown for the construction of the Maraetai power station and Mangakino township. The Maraetai power station land was available for “resumption” or return to iwi through section 8A of the Treaty of Waitangi Act 1975. Section 8A empowers the Tribunal to return some categories of land such as Crown Forest land, tertiary institution land and, as in this case, current and former state-owned enterprise land. It contains a series of tests that must be met before the Tribunal can issue a resumption order.

The resumption application was opposed by Raukawa, who were concerned that the Tribunal would award land within their territory as redress to Māori with no ancestral connection to that land.

Raukawa argued that the Tribunal was required to consider the full circumstances of the impact of the resumption on Raukawa when exercising its section 8A powers. Raukawa said that it was not for the Tribunal to issue an order that prejudicially affected other claimants or parties, and described the prejudice in the following way:

• Raukawa have mana whenua over the Pouākani lands.
• The Crown breached its Treaty obligations to Raukawa through its historical purchasing practices and the activity of the Native Land Court.
• The residence of Ngāti Kahungunu people on the Pouākani land has been a hurtful affront to their [Raukawa] mana whenua, compounding the harms caused by Crown actions.
• Using the Pouākani land as redress for Crown breaches against Ngāti Kahungunu would itself constitute a Treaty breach against Raukawa.

Therefore, Raukawa argued that the Tribunal should not return this land to Wairarapa Moana Incorporation nor to the wider Ngāti Kahungunu ki Wairarapa Tāmaki-nui-a-Rua Settlement Trust.

The Crown supported Raukawa’s position on the mana whenua issue. It suggested that, as the Wairarapa people did not occupy the Pouākani land until 1948, they did not have time to develop any significant cultural connections to that land before it was compulsorily acquired in 1949.

Given the Tribunal had found that the Crown breached Treaty principles when it granted the Pouākani land to Wairarapa people, returning that land to the Wairarapa people now would be yet another Treaty breach and prejudicial to the interests of Raukawa.

There were three issues of note in the Tribunal’s consideration. The first was whether the words “relates . . . to” in section 8A require a direct and specific connection to the land, or whether a broad and indirect connection would suffice. The second was whether the return of the $600 million Maraetai power station asset was proportionate to the loss suffered by Wairarapa Moana Incorporation. The third was the weight to give to the principle of mana whenua when applying tikanga to this case.

I consider these questions in turn.

Section 8A(2) says that where the Tribunal finds that there is a “well-founded” claim that “relates in whole or in part to land or an interest in land to which this section applies”, the Tribunal may recommend “that that land or that part of that land or that interest in land be returned to Māori ownership”.

The Tribunal took a broad interpretation of section 8A. It said that the legislative provision was designed to respond to the need to return land to Māori and that it was “remedial in nature, a context that calls for a large and liberal rather than narrow and restrictive approach”. It referred to the Muriwhenua Land Report and concluded that the term “relates . . . to” can include an indirect connection to memorialised land.

Second, on the question of proportionality, the Tribunal said it was satisfied that Wairarapa Moana Incorporation had a well-founded claim that related in whole or in part to land for which resumption was sought. It went further to say that the well-founded claims about Crown actions against Ngāti Kahungunu ki Wairarapa Tāmaki-nuia-Rua also related to the land at Pouākani.

This finding led the Tribunal to consider in whose favour it might make the resumption order. It reviewed the seriousness of the case, the impact of the loss and the numbers of people affected, among other matters. The Tribunal did not accept that the losses to the Wairarapa Moana Incorporation were sufficiently proportionate to order a resumption in the Incorporation’s favour. However, it concluded that there was sufficient proportionality between the value of the memorialised land and the prejudice suffered by Ngāti Kahungunu ki Wairarapa Tāmakinui-a-Rua Settlement Trust.

Third, in relation to mana whenua, a key concern for the Tribunal was the complexity of a resumption claim based on the compulsory acquisition of land from Wairarapa Māori who had owned it as Māori land under legislation but did not have the tūpuna title.

The Tribunal considered the tikanga of mana, hara, utu, muru and ea. It agreed that the recognition of mana is an essential component in achieving ea, a resolution. The tikanga of ea obliged it to deliver not just redress but also resolution through a restorative process.

To achieve ea, there must be utu, a response. In this case, the Tribunal conceptualised the appropriate utu as a muru. A muru would enable the Ngāti Kahungunu ki Wairarapa Tāmaki-nui-a-Rua Settlement Trust to take land from the Crown as recompense for the hara the iwi had suffered.

The Tribunal agreed that Raukawa were, and remained, mana whenua of the Pouākani whenua and that Ngāti Kahungunu are manuhiri there. The Tribunal said it understood the tikanga of mana whenua but was not persuaded by a manuhiri versus mana whenua argument, reasoning that:

• The tikanga of customary ownership of the land had been disrupted since the 1887 Native Land Court award of the block from Raukawa to the Crown. If the land was not returned to Ngāti Kahungunu, it would not go back to Raukawa but remain with Mercury Energy NZ.
• The resumption claim was only for 787 acres, leaving 29,000 acres in Wairarapa Moana Incorporation ownership. Raukawa would not get the 29,000 acres back. A resumption order would restore to Wairarapa Moana Incorporation the full 30,486 acres of the original 1916 grant.
• Wairarapa Māori did not ask for the Pouākani land. The land deal was a “continuation of a wholly blameworthy failure of the Crown to protect their rights as owners of Wairarapa Moana”. The Crown breach of transferring Pouākani land into Wairarapa Moana ownership should not become sufficient grounds under tikanga to deny Wairarapa Moana hapū a remedy for the subsequent breach caused by the compulsory acquisition of that same land.
• There is no legal authority by which the Tribunal can return any of the Pouākani land to Raukawa.
• If the Tribunal granted the resumption and returned the Pouākani land into Māori ownership, “the recipient entity may find a way of ameliorating the situation” directly with Raukawa.

The Tribunal referred to the complexity of the case, saying that “being practical in this situation means acknowledging that the treatment of the land at Pouākani is part of a historical continuum that we cannot undo”.

It went on to explain:

“The situation concerning the land at Pouākani is sui generis — that is standalone and unique in almost every conceivable way. In excluding mana whenua groups from benefit, we are complying with the law. In deciding to return land to Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua in an area outside their rohe, we are exercising judgement in a tikanga-compromised world to achieve what we believe is the best outcome under the circumstances.”

The Tribunal indicated in its preliminary determination that if it was to order a resumption, it would do so in favour of the Ngāti Kahungunu ki Wairarapa Tāmaki-nui-a-Rua Settlement Trust.

High Court appeal

Mercury Energy NZ, the Crown and Raukawa sought a judicial review of the Tribunal’s findings. Mercury Energy NZ challenged the Tribunal’s decision to exclude it from the hearings.

The appellants all argued that the Tribunal had misinterpreted its section 8A powers. They argued that the Tribunal’s conclusion that the connection between a well-founded claim and the subject land can be broad and indirect was wrong in law.

The appellants argued that the Tribunal was therefore wrong to say there was a sufficient connection between the claim and the land. This would then mean that the Tribunal’s preliminary intention to order the resumption of the Maraetai power station at Pouākani for the general losses suffered by Ngāti Kahungunu ki Wairarapa Tāmaki-nui-a-Rua was wrong.

Raukawa also argued that the Tribunal’s determination was inconsistent with tikanga and with the Treaty of Waitangi. Raukawa said that the Tribunal was obliged to act in a manner consistent with tikanga and that it erred by not preferencing mana whenua. While Wairarapa hapū deserved compensation for the public works acquisition, that compensation should not come in the form of Raukawa tūpuna land.

Further, Raukawa said that an order for resumption would force the Crown to breach its Treaty obligations to Raukawa, which the Tribunal could not lawfully do.

Justice Cooke agreed that the Tribunal had misinterpreted its resumption powers. He accepted that the provisions of the Treaty of Waitangi Act should “receive a broad and unquibbling interpretation” but that, when considering the words “relates . . . to” in section 8A along with the preamble of the Act, the claim should “relate to the land that has been transferred to the state enterprise”.

Justice Cooke reflected on the complexity of the closely linked Treaty breaches in this “remarkable story of injustice” but found that the resumption power refers to the loss of mana whenua over the specific land. The Tribunal’s intention to use the resumption of the Maraetai power station land to remedy a Treaty breach for wider Ngāti Kahungunu ki Wairarapa losses was not appropriate:

“There is a qualifying claim concerning the circumstances under which the Crown took title from the Māori landowners. But it seems to me that the lack of mana whenua is a very important consideration when the exercise of the power is considered.”

Justice Cooke found for Raukawa on the tikanga question. He said that the Tribunal’s decisions cannot be inconsistent with tikanga and cannot create a contemporary breach of the Treaty principles. Tikanga in this respect “forms a key part of the law to be applied”. The Tribunal’s preliminary determinations were not consistent with the principle of mana whenua as identified by the Tribunal itself. The key purpose of section 8A was the restoration of mana whenua, which therefore is also the key principle applying to the exercise of the Tribunal’s discretion.

Further, he said that the Tribunal, as a statutory body, was itself required to comply with the principles of the Treaty of Waitangi. It could not then act in breach of those principles. Ordering the return of tūpuna lands of one iwi to another was inconsistent with the principles of the Treaty, and the Tribunal had no discretion to be so inconsistent.

Supreme Court

In 2022, the Supreme Court heard the appeal from the High Court. The appeals and cross-appeal were complex, but only two concern us for this discussion. One was the “mana whenua issue”: was the Ngāti Kahungunu ki Wairarapa Tāmaki-nui-a-Rua Settlement Trust disqualified from a resumption order because it was not mana whenua?

The other was the “prejudice issue”: which historical Treaty prejudice is relevant to the exercise of the Tribunal’s resumption jurisdiction?

The Supreme Court agreed with Justice Cooke that the Tribunal was not empowered to breach the principles of the Treaty and that tikanga would, at minimum, be a very important consideration in decisions under section 8A.

But the majority held the High Court was wrong to determine that the lack of mana whenua would prevent the Tribunal from granting resumption:

“We take the view that in tikanga, as in law, context is everything. It is dangerous to apply tikanga principles, even important ones, as if they are rules that exclude regard to context . . . a rigid approach to the priority of mana whenua . . . cannot be justified.”

The majority considered four factors in coming to this conclusion.

First, they said that although “mana whenua” refers to authority over land, mana whenua and customary ownership are not necessarily the same in tikanga. Mana whenua is the right to speak for the land and for the people of it. It is a very important principle of tikanga, but there are examples where the mana whenua is held by one group and the resource or use rights in the land are held by another.

Second, tikanga is a system of law that, like others, is “highly sensitive to context” and recognises that there will be exceptions and adaptations. When the Tribunal described having to make practical decisions in a “tikanga-compromised world”, that was not compromising tikanga but rather applying tikanga to the context. It follows that the Tribunal did not fail to apply tikanga in its reasoning. The Tribunal considered a number of principles of tikanga in its decision, including mana whenua, mana, hara, utu and ea. The Tribunal was balancing these principles and seeking a solution that would restore balance in a mana-affirming way.

Third, tikanga was highly adaptable during the first wave of colonisation in response to the Crown structures for engaging Māori legal rights. Lease holdings, Crown purchases, the Native Land Court and now Treaty settlements have all required tikanga engagement. Tikanga has adapted “sometimes willingly and sometimes out of reluctant necessity”: for example, in urban Māori Treaty claims. Perhaps, the Supreme Court considered, tikanga might find a way through the Pouākani land deal.

Finally, the majority referenced tuku whenua, a traditional tikanga transfer of land from mana whenua to non-mana whenua. Such long-term gifts of land and land use were made for many purposes, including peace negotiations, compensation, recognition of a service or to provide essential resources. Tuku whenua was a legal tool in te ao Māori and is available in contemporary times. These arrangements require long and trusted kōrero between the parties which can also be supported by tikanga.

A tikanga-based resolution: Hara, utu and muru

The Tribunal and the Supreme Court both referred to tikanga Māori legal principles as tools for a tikanga-based resolution.

In particular, the Tribunal considered the concepts of hara, utu and muru in its response to the application. It noted that a hara impacts the wrongdoer as well as the aggrieved party.

The Tribunal repeated the comment of Paul Meredith that “there is mana in giving redress”, as well as the evidence of Sir Kim Workman in this regard:

“The Crown needs to be an active and responsive party to the process and to agree it will not engage in adversarial and negative behaviour, but that its work is to heal the wounds they created . . . [where] they are not . . . trying to preserve their pūtea but one that is genuinely concerned that if they do this wrong, the welfare and wellbeing of our people will be affected for another 100 years.”

A hara will harm the mana of the wrongdoer until they take full responsibility for the wrong. However, in its closing submissions to the Tribunal, the Crown fell short of accepting the full consequences of the harm it caused through the Pouākani land deal.

It did acknowledge that future relationships with iwi and hapū were important. It was prepared to accept that there was a prejudice to address, but did not accept full responsibility, arguing instead that any remedy for the wrongs should “restore the relationship, rather than punish the transgressor”. The phrasing implied that the Crown required that the hara itself be minimised as a condition of good working relationships in the future. The Crown suggested that it would be a punishment for the Tribunal to hold it to account for the harm.

There are inevitable consequences from causing harm. In tikanga Māori, utu is the legal principle that requires a response or act of reciprocity to address a hara. At times, punishment is a legitimate utu, or consequence, of a harmful act.

But a resumption application is not a punishment. A resumption application concerns the return of land unjustly taken from Māori by the Crown. The return of that land to those Māori is a restoration, not a punishment.

It is highly problematic when the Crown characterises a legitimate application for the return of land as such. This characterisation demonstrates the Crown’s refusal to accept responsibility for its actions, even if that refusal is expressed in words of reconciliation.

The Tribunal invited the Crown to give effect to its reconciliatory language, saying:

“Moreover, we note that a tikanga-based approach would see the wrongdoer embracing the muru. In the present context of this remedies inquiry, this would involve the Crown accepting as appropriate the return of the subject land to Māori ownership — that is, to the ownership of those whom the Crown wronged. In this frame, the Crown — the wrongdoer — also sees ea as essential to restoring the proper Treaty relationship; is grateful for this opportunity to put things right with Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua; and sees that this modern-day muru will enhance not only their mana but also the mana of the Crown.”

In conceiving of the utu as a muru, the Tribunal explicitly referred to both the practice of reciprocity inherent in Māori legal relationships and the tikanga conception of muru as compensation.

A muru is a process that allows the aggrieved party to take property from the wrongdoer. It also restores relationships between the parties. In a tika, or correct, muru, the wrongdoer accepts the hara and actively enables the muru to occur.

A muru is not necessarily a negotiation, but it does require planning. It also requires trust on both sides that the compensation will be fairly taken by the aggrieved party and freely given by the wrongdoer. If the aggrieved party is excessive or greedy, they undermine their own mana. They should only take what is justified in the context.

It is the notion of “fairly taken” and “freely given” that restores mana to all the parties. The wrongdoer therefore bears the burden of accepting the decision of the aggrieved party as to what is just compensation. The wrongdoer is obliged to manaaki, or care for, the aggrieved party while the muru occurs. This act of manaaki, often in the form of hosting, enhances the mana of the wrongdoer. This process of trust and fairness restores the honour of the wrongdoer and builds mutual respect between the parties.

This is a process by which relationships are restored in tikanga. Hara, utu, and tools such as muru are complex tikanga legal arrangements designed to repair and build relationships. The Crown has had many decades to understand these arrangements and make provision for this tikanga in its redress approach.

However, the Crown continues to struggle with these concepts. In the resumption application hearing, the Crown went to great lengths to downplay its culpability.

It argued that its financial liability for the compulsory acquisition of the Pouākani land was very low. It said the land was undeveloped in 1949 when it was finally acquired; that the Crown had alternative sites for building a new dam; and that the Māori owners were in no position to develop that land for electricity generation themselves.

In closing submissions, the Crown offered an apology, the payment of $376,451 to right the wrong of its compulsory acquisition, and a further payment of $380,000 to provide some temporal compensation.

This offer failed to address the depth of the hara it had caused and failed to restore the mana of the Crown.

Both Raukawa and the Ngāti Kahungunu ki Wairarapa Tāmaki-nuia-Rua Settlement Trust proposed arrangements that might enable a tikanga-based process for the restoration of the relationship between them, and with the Wairarapa Moana Incorporation. These suggestions came quite late in the resumption application process but did demonstrate a shift in positioning and some confidence in a tikanga-based resolution.

The Trust offered that if a resumption was ordered in their favour, they could transfer the land back to Raukawa, who might transfer it back to Mercury Energy NZ for a payment of some kind. Raukawa and Ngāti Kahungunu ki Wairarapa could then establish a joint trust to hold 5 percent of the payment and use the income from that holding to benefit Raukawa and Ngāti Kahungunu people living in the area. On its face, it was a similar arrangement to the return of land such as maunga in Treaty settlements.

Raukawa remained profoundly opposed to any transfer but did suggest a means to separate the financial value of the resumption order from the ownership of the land. They said that doing so would restore mana whenua and still provide compensation to Ngāti Kahungunu ki Wairarapa.

The Tribunal noted this in its concluding remarks on tikanga:

“It may well be that the recipient entity to which we recommend the land is returned can find a way of ameliorating the situation at Pouākani. Both Raukawa and Ngāti Tūwharetoa have suggested possibilities. The positions of mana whenua have been fully expressed in this inquiry, and the Wairarapa parties now understand them more fully. We believe it will prove possible, with goodwill on all sides, to change the dynamic of the relationships at Pouākani so that all can move towards a state of ‘ea’.”

The Tribunal’s response was essentially one of trust, in that by returning the land into Māori ownership through the legal means available to it, the Māori entities would be able to find a tikanga-based solution to the complex intergenerational whenua issues.

The Tribunal was not deterred by the fact that the iwi had not been able to do so prior to the hearing. It clearly wanted to exercise its powers to make a tikanga resolution possible in the future.

The wānanga had enabled a sharing of tikanga concepts and a kōrero between parties that were historically at loggerheads. And the iwi had begun to think of innovative solutions that could provide a win-win-win for all of them.

The Crown, however, remained obstinate. This obstinacy prevented any resolution of this Treaty breach. The Supreme Court had issued its decision on the appeals on December 7, 2022, supporting the Tribunal’s approach and preliminary determination.

The Crown proceeded with haste to progress the Ngāti Kahungunu ki Wairarapa Tāmaki-nui-a-Rua settlement legislation before the Tribunal could reconvene for a final determination.

The Tribunal, aware of the legislative timetable, issued a final statement on the matter on December 12, 2022:

“If the Ngāti Kahungunu ki Wairarapa Tāmaki-nui-ā-Rua Claims Settlement bill were not passed into law tomorrow, the Tribunal would pursue the path outlined for it in Wairarapa Moana ki Pouākani Incorporation v Mercury. This might have had the effect of returning significant hydro assets to the Wairarapa Moana Incorporation or another appropriate entity. It might also have resolved longstanding raru between tangata whenua at Pouākani and Wairarapa Māori through a tikanga process that was allowed to run its course.

However, the government has decided to extinguish those possibilities by passage of law tomorrow.”

Conclusion

Although the Treaty settlement process has provided economic benefits for many Māori, iwi and hapū, the process has itself also caused harm.

For many hapū, as for Wairarapa Moana, there is no current legal pathway for restitution. That said, other tikanga-based processes are opening up for iwi and hapū. Some have advocated for tikanga-based arbitration, although there is still some disagreement over the scope of arbitration in iwi disputes.

The judiciary are also developing common law pathways that recognise tikanga law as a legitimate part of Aotearoa New Zealand’s jurisprudence.

This shift is the result of many intergenerational factors, including improved access to the law by iwi Māori, improved access to higher education for individuals, and an improving attitude in general to matters of Māori restitution.

The Wairarapa Moana Lakes agreement and the Raukawa tūpuna land deal at Pouākani provide a useful lesson on the weaknesses of the Treaty settlement process. One primary weakness, identified in this case study, is the failure of the Crown to act with mana when engaging in a resolution process.

This is not a new observation. The failure is driven by a complex mix of interests, including the adherence to the power of indivisible sovereignty, the concern that full resolution means even more expensive restitution, and an acute awareness of the limits of the voting public’s appetite for such restitution.

However, the increasing engagement of Māori in law, politics and the economy is helping to drive tikanga-based resolution processes that might create genuine long-term change. Māori-led structural contributions such as those proposed by Matike Mai, He Puapua or WAI 262 Kia Whakapūmau provide pathways where tikanga might frame, drive and resolve disputes between iwi and between hapū, and between Māori and the Crown.

A future restitution process, based on the values and law of tikanga Māori, may yet deliver justice for Māori and a truly honourable relationship with the Crown.

 

This essay is an extract from Te Tiriti o Waitangi Relationships: People, Politics and Law, edited by Janine Hayward, Metiria Stanton Turei and Nicola R. Wheen (BWB, RRP $49.99) available now.

Metiria Stanton Turei, LLM, BVA (Hons), Āti Haunui a Pāpārangi, Ngāti Kahungunu ki Wairarapa, Rangitāne, Te Ātiawa, is a pūkenga matua at Te Tātai Kaupeka Ture, Faculty of Law, Ōtākou Whakaihu Waka—University of Otago. Metiria teaches Mātauraka Ture me te Mātāpono Māori.