Tribunal releases report on landlocking in Taihape inquiry district
The Waitangi Tribunal’s latest report, He Whenua Karapotia, He Whenua Ngaro: Priority Report on Landlocked Māori Land in the Taihape Inquiry District(external link), was released today in pre-publication format. It precedes the Tribunal’s main report on the broader Taihape: Rangitīkei ki Rangipō district inquiry.
Landlocking affects Māori land nationally but is a particularly acute problem in Taihape, where more than 70% of remaining Māori land holdings are landlocked – exceeding 50,000 hectares. Māori have no legal or physical access to these lands, despite retaining ownership of them. In its report, the Tribunal finds that the Crown allowed Māori land in Taihape to become landlocked and has failed to remedy the problem, breaching treaty principles and causing long-term prejudice.
The Tribunal concludes that flaws in the Crown’s native land legislation caused landlocking in the inquiry district. In the decades before 1912, when most landlocking in Taihape occurred, the Crown did not require the Native Land Court to preserve access to Māori land as it was partitioned. Upon the sale or lease of a partition with road access, therefore, blocks of Māori land lying beyond it usually became landlocked. From 1886, Māori land owners could apply for access to their lands as they passed through the court or within five years thereafter. These provisions were ineffective in practice, however, as they still gave the court discretion on whether to grant access and required Māori owners to pay the significant cost of creating any access granted. The Tribunal finds that the Crown’s general failure to address the risk of landlocking in its native land legislation before 1912 breached the treaty principles of active protection, partnership, and equity. Moreover, the Crown’s expectation that Māori land owners apply to the court to retain access to their own land, and pay for it, undermined the treaty guarantee of ‘full exclusive and undisturbed possession’ of land. Māori should not have had to take such steps to retain access, the Tribunal argues, because the risk of landlocking arose from legislation imposed on them, not actions they had taken.
The Tribunal also finds that the Crown’s attempts to remedy landlocked Māori land through legislation have been flawed and ineffective, breaching treaty principles. From 1912, the Native Land Court (and later Māori Land Court) could order retrospective access to landlocked Māori land. But if the neighbouring land to be crossed had left Māori ownership before 1913, the court had no power to order access, or could do so only with the neighbouring owner’s consent. This restriction in the law effectively removed the court’s ability to restore access to landlocked Māori land in Taihape, which had almost entirely become landlocked – as neighbouring land was sold – before 1913. As a result of these measures, Māori of the inquiry district had no legal avenue to unlock their land for over sixty years. The Crown conceded that its remedies in this period were ineffective and prioritised European land owners’ interests to the disadvantage of Māori land owners, breaching treaty principles.
Since 1975 the Crown has tried to improve its remedies, but they have remained ineffective for owners of landlocked Māori land in Taihape, the Tribunal finds. From 1975, Māori owners could seek access via the Supreme Court (now the High Court) without the need for any other land owner’s consent, but this remedy was very costly to pursue. In 1993, Te Ture Whenua Maori Act provided a less expensive pathway for Māori land owners to seek access via the Māori Land Court, but reimposed a requirement for the neighbouring land owner’s consent. This requirement was removed in 2002, but the neighbouring owner could simply appeal to the High Court. From 2020, appeals could finally be heard in the more accessible Māori Appellate Court. Despite these changes, no Māori land owners in Taihape have successfully used these remedies to unlock their land. The Crown’s longstanding failure to provide effective remedies breaches several treaty principles, including the principle of redress, the Tribunal finds.
The Tribunal concludes that the key flaw in the Crown’s remedies is that they have continued to place the huge cost of restoring access on the owners of landlocked Māori land themselves. As well as being ineffective, this approach has treated owners of landlocked Māori land no differently than owners of general land seeking to access landlocked land they have purchased. In this respect, the Crown’s remedies breach the principle of equity.
The Tribunal finds that lack of ready access to much of their remaining land base has caused significant prejudice to whānau and hapū of the Taihape district, undermining their opportunities for economic development, ability to exercise kaitiakitanga, and intergenerational transmission of mātauranga relating to these lands.
To remedy landlocking in the Taihape district, the Tribunal recommends the Crown establish a contestable fund to which Māori owners of landlocked land can apply to achieve access. The fund would pay for access that may be granted by the Māori Land Court, including any compensation payable to neighbouring landowners. The Tribunal stresses that funds for this purpose should not be taken from the sum set aside to settle the district’s historical claims.
The Tribunal received 46 claims in the Taihape district inquiry. Hearings took place from 2016 to 2021. The Taihape panel comprises Justice Layne Harvey (presiding), Professor Tā Pou Temara, Dr Monty Soutar, and Dr Paul Hamer. Sir Douglas Kidd (now resigned) and the late Dr Angela Ballara were former members of the panel.
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