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What is resumption?
Generally, the Waitangi Tribunal has the power only to make non-binding recommendations to the Crown. However, in some limited circumstances the Tribunal can make binding recommendations in respect of four categories of land: Crown forest lands, and certain ‘memorialised’ land owned, or formerly owned, by a State-owned enterprise, a tertiary education institution, or the New Zealand Railways Corporation.
Where these lands are claimed by Māori, the Waitangi Tribunal may, if it finds the claim to be well founded, recommend the land be returned to Māori ownership. Although the legislation phrases these as 'recommendations', they are in fact binding on the Crown, once confirmed, after a period of 90 days. This process is known as resumption.
The Tribunal was given the power to make these binding recommendations following Court of Appeal proceedings brought by the New Zealand Māori Council against the Crown in 1987. The council successfully argued that the Crown was in breach of its Treaty of Waitangi obligations in transferring Crown land to State-owned enterprises (which could then sell the land) without having a scheme in place to safeguard that land for existing and future Treaty claims. The scheme that resulted from these proceedings involved the entering of a memorial (or notation) on the certificate of title of State-owned enterprise lands. The memorial (commonly called a ‘section 27B memorial’ because its legislative origin lies in section 27B of the State-owned Enterprise Act 1986) gives legal notice to buyers of the land that they purchase with the risk of the land being returned to Māori ownership on the binding recommendation of the Waitangi Tribunal. Legislation was later enacted to implement similar mechanisms for education and railways land, and, since 1989, Crown forest lands have also been subject to binding recommendations of the Tribunal.
The Tribunal's powers to make binding recommendations in respect of State-owned enterprise, Crown forest, education, and railways lands represent an important exception to the general position that the Tribunal cannot recommend the return to Māori ownership of private land.
If the Tribunal recommends the return of such resumable land to Māori, these recommendations are initially ‘interim recommendations’ for a period of 90 days. This 90-day period is set out in sections 8B and 8HC of the Treaty of Waitangi Act 1975 and is intended to provide the Crown and the group to whom the return of land has been recommended to meet and, if they wish, negotiate a settlement of the group’s Treaty claim. If a settlement is reached, the parties will advise the Tribunal of this, and the Tribunal may cancel or modify its recommendations.
If the Tribunal’s recommendations for the return of resumable land are not cancelled after 90 days, they are confirmed and become final. When this occurs, the Crown will acquire the resumable land from the current owner under the Public Works Act 1981. The current owner or owners of the land will be compensated for this acquisition under the provisions of the Public Works Act.
In August 1990, the Waitangi Tribunal began hearing the land claims of the six iwi of the Te Hiku o Te Ika (Muriwhenua) district: Ngāti Kuri, Te Aūpouri, Ngāi Takoto, Te Rarawa, Ngāti Kahu, and Ngāti Kahu ki Whangaroa. The focus of the Tribunal’s inquiry was the way in which the Crown had dealt with pre-1840 land transactions between these iwi and Europeans and on the Crown’s land purchasing in the 1840s and 1850s. The hearings were completed in June 1994, and the Tribunal issued the Muriwhenua Land Report in 1997. The Tribunal was satisfied that claims to 1865 were well-founded and that the resulting prejudice was such that recommendations for the transfer of substantial assets should be effected as soon as practicable. A full copy of this report can be found online here.
In the final chapter of the report, the Tribunal contemplated a process for making more specific recommendations to the Crown about a settlement or settlements that would go some way to compensating iwi for the losses they had suffered through the Crown’s actions and omissions before 1865. However, it became clear that the iwi and Crown were ready to begin negotiations to settle the claims so those recommendations were not considered necessary at the time.
Treaty settlement negotiations between each of the iwi in the Muriwhenua district and the Crown began in the late 1990s. To date, Te Rarawa, Te Aūpouri, and Ngāi Takoto have all initialled and ratified their deeds of settlement and are awaiting the introduction of settlement legislation into the House of Representatives. This will make these settlements final.
In September 2008, Te Rūnanga-ā-Iwi o Ngāti Kahu and the Crown signed an agreement in principle outlining a package of redress to settle the former’s historical Treaty claims.
Following this, Te Rūnanga-ā-Iwi o Ngāti Kahu proceeded to draft a deed of settlement which they submitted to the Crown on 8 April 2011. This draft deed was not accepted by the Crown, resulting in Ngāti Kahu withdrawing from negotiations.
In October 2007, Te Rūnanga-ā-Iwi o Ngāti Kahu filed an application for remedies with the Tribunal for resumption of certain lands pursuant to sections 8A and 8HB of the Treaty of Waitangi Act 1975. This application was adjourned until March 2010 to enable ongoing negotiations with the Crown. On 15 July 2011, Ngāti Kahu revived their application.
Ngāti Kahu wanted the Tribunal to use its binding powers to recommend that the Crown resume certain Crown forest licensed properties and land previously transferred to a State-owned enterprise so that those properties could be returned to Ngāti Kahu as redress for Treaty breaches identified by the Tribunal in its 1997 report as affecting Ngāti Kahu. Following a judicial conference held in Wellington on 25 November 2011, the Tribunal sought further information from Ngāti Kahu before it could decide whether or not to proceed further with the application.
A further judicial conference was held in Wellington on 22 March 2012. The Tribunal then determined, in a decision dated 18 April 2012, that a remedies hearing would be held in respect of Ngāti Kahu’s well-founded claims, up to 1865, which relate to the core area of Ngāti Kahu’s customary interests as discussed by the Report on the Mangonui Sewerage Claim, the Report on the Muriwhenua Fishing Claim, and the Muriwhenua Land Report. On 5 June 2012, a judicial conference was convened to discuss principles of relief and other matters in preparation for the hearing of the remedies application.
Ngāti Kahu is seeking the resumption of 201 parcels of land. These contain a total of approximately 5,266.87 hectares. Almost all of the land being sought in this remedies inquiry is Crown land or land currently owned by State-owned enterprises, Crown entities, and the territorial authority. Such land totals 5,095.58 hectares contained in 81 parcels (96.75 per cent of all the land sought). Currently, 171.28 hectares involved are privately owned. This is held in 120 parcels.
A part of the legislative scheme resulting from the New Zealand Māori Council proceedings in 1987 was an agreement that, where an application is made to the Tribunal for the use of its binding powers, the Tribunal shall treat resumable land as if it were still owned by the Crown. This requirement is set out in sections 8A(3) and 8HB(2) of the Treaty of Waitangi Act 1975 and paragraph (g) of the preamble to the Treaty of Waitangi (State Enterprises) Act 1988.
In line with this agreement, sections 8C and 8HD of the Treaty of Waitangi Act 1975 set out that, in considering an application for the use of its binding powers, the Tribunal can hear submissions only from the claimant who has filed the application, Ministers of the Crown, and any Māori who satisfies the Tribunal that they have an interest in the inquiry apart from any interest in common with the public. This precludes State-owned enterprises, or owners of resumable land, from appearing before the Tribunal in its hearings on this point.
An update from December 2012 is available here.
The Tribunal will hold a week of hearings to inquire into Ngāti Kahu’s remedies application beginning Monday, 3 September 2012. The hearing will be held at Kareponia Marae, State Highway 10, Awanui. A public notice will appear in local and national newspapers closer to that date giving further details. A day of closing submissions will be held at the Environment Court in Auckland on Tuesday, 18 September 2012. Sometime after the hearing, the Tribunal will issue its remedies report including any binding recommendations it may make.
Two key memorandum–directions of the Tribunal regarding Te Rūnanga-a-iwi o Ngāti Kahu’s application for remedies and the upcoming hearing are:
The Tribunal has adopted this map for the purposes of the application for remedies by Te Rūnanga-a-iwi o Ngāti Kahu. The remedies hearing will relate to properties contained within the claim area indicated by the yellow line and titled ‘Ngāti Kahu AIP 2008’. The numbers contained within this map relate to an outdated schedule of properties.
For the properties affected within this claim area map, please see the schedule of properties.
The list of properties potentially affected by the remedies application by Te Rūnanga-a-iwi o Ngāti Kahu is contained in the following schedule. The properties are identified by registered proprietor, Land Information New Zealand map ID, legal description, area in hectares, and title reference.
This public notice appeared in the New Zealand Herald and Northern Advocate newspapers on 28 July 2012. It will also appear in both newspapers on 11 August 2012.
If you have any questions, please contact the registry on (04) 914 3000 or email firstname.lastname@example.org.