The High Court released its judgment last week as to whether a tikanga-based resolution process was completed in accordance with the Central North Island Forests Land Collective Settlement Act 2008 (the Act) and related Trust Deed and Shareholder's Agreement (TD&SA). While a judgment specific to its own facts and the terms of the Act and TD&SA, it provides a further example of the High Court's handling of a judicial review that intersects with tikanga Māori, as well as containing a number of points of broader interest.
Background
A simplified version of the background and findings is as follows:
- Following a Treaty settlement between the Crown and eight Central North Island (CNI) iwi, the Crown agreed to transfer to the CNI iwi 176,000 ha of CNI forests land, together with the rights to Crown forestry licences attaching to the land and accumulated rental income. The transfer was made to CNI Iwi Holdings Ltd (the Company), a company whose role is to hold and administer the land and distribute rental income from the forestry licences, as trustee for the CNI iwi in accordance with the Act and the TD&SA. The directorships and shares of the Company are held equally by the post‑settlement governance entities of the CNI iwi.
- As part of the Treaty settlement, the CNI iwi agreed on a tikanga-based resolution process, on the basis of mana whenua, to allocate the CNI forests land amongst themselves. The Act establishes a three stage tikanga-based resolution process. Following identification of mana whenua interests and negotiations, CNI iwi moved to the third stage: adjudication to determine the allocation of the CNI forests land.
- A three person adjudication panel was appointed. Following an earlier process that determined each iwi's mana whenua interest in different blocks of the CNI forests land, the panel's final decision was for the Company to hold all the land on one title, and for rental income to be allocated to iwi according to a percentage based on their determined mana whenua interest rather than according to the allocation percentages recorded in the Act.
- Some iwi challenged the panel's decision-making process and the outcome itself, saying it was not consistent with the tikanga-based resolution process. The Court found various aspects of the panel's final decision were not valid – most notably, its decision to have the CNI forests land held by the Company on one title was not a decision that the panel had the power to make under the tikanga-based resolution process.
Potential broader points of interest from the judgment
Procedural requirements
Some of the CNI iwi challenged a procedural aspect of the panel's decision, saying that because the three adjudicators did not make their decision contemporaneously (due to the illness of one of the adjudicators) there was no "majority" decision that met the requirements of the tikanga-based resolution process, as required by the Act.
The Court found that the panel's decision did comply sufficiently with the requirements of the tikanga‑based resolution process. The Court accepted that a decision-making body generally requires collective consideration by its members, but this depends to some extent on the character of the body and the extent to which its members have engaged collectively. Non-judicial bodies have less stringent procedural standards, and all of the adjudicators had collectively participated in a significant portion of their task before the third adjudicator fell ill – they heard evidence and determined the CNI iwis' mana whenua interests collectively. Although the decision of two of the adjudicators was finalised before the third adjudicator was able to start his decision-making process, he had the benefit of their decision and discussions with them.
The Court also found that the parties had acquiesced to the modified panel process. The Court held that the parties must have been aware that standard processes, including decisions of all three adjudicators being issued contemporaneously, were unlikely to occur.
Finally, as this was not a "judicial" adjudication, but an adjudication grounded in tikanga, the Court also gave some deference to the first and second adjudicators' views on the process they followed, as experts in tikanga. Commenting on the requirement for the panel to have three members, the two adjudicators explained that in tikanga terms, they expected the ill-health of the third adjudicator "would have been acknowledged with some sympathy and a degree of compassion manaaki." In his absence, they believed that they discharged their responsibility under tikanga to deliberate in a considered, fair, and reasonable manner. Further, they recorded their view that questioning their findings because of the third adjudicator's absence is to subject the third adjudicator's illness to a "narrow Pakeha legal test that is both unconscionable and unnecessary."
Mana whenua recognition in ownership
There were competing arguments before the Court for and against the panel's proposed ownership model, based on tikanga and mana whenua. Iwi in favour of the Company retaining the title argued that "Māori-based solutions that were not based on (Pākehā) land division concepts, such as division of title" were possible, and gave evidence that the panel's decision reflected that no one iwi can claim exclusive mana whenua in the CNI forests land. Iwi who objected to the panel's decision emphasised that settlement involves individual Treaty claims centred around land, and the principle i riro whenua atu me hoke whenu mai (as land is taken, so should it be returned). They argued that retention of the title by the Company would deprive iwi of mana whenua; they presented expert evidence from Dr Carwyn Jones and Professor Margaret Mutu to support their submission that loss of decision‑making authority is contrary to the concept of mana whenua and inconsistent with tikanga.
The Court found that the panel's decision that all of the CNI forests land should be held by the Company under one title, without further arrangements (the Court later held that the panel's reallocation of rental income was not valid), was not a decision the panel had the power to make under the tikanga-based resolution process (although all of the parties agreed it was an option that iwi could have agreed to at the earlier negotiation stage of the resolution process). The Court held the principles of the Act plainly required that "the land must be allocated, to iwi and on the basis of mana whenua"; the panel's decision did not recognise mana whenua, and nor was it an "allocation" of the CNI forests land. In particular, the Court found that if the land is held in one title by the Company, without more, iwi would lose their discrete decision‑making authority in respect of the land in which they have mana whenua interests; decision-making would sit with the majority, and iwi with no or limited mana whenua in a block of land could have a decisive voice. Although the panel had determined mana whenua interests, the Court found that the model did not reflect or recognise those interests.
However, the Court held that having all of the land in one title was not fatal. It was open to the panel to allocate the land to iwi in the form of joint or multiple ownership as tenants in common, so long as each iwi, through that title, had the right to participate – in a manner consistent with its relative interest – in decision-making regarding the management and use of the land. Alternatively, the Court found that had the panel's decision specified that title was to be held on the basis of separate trusts for each block, with the beneficial interests of each iwi as determined by the panel being reflected, it would have amounted to a valid allocation.
It appears from the Court's ultimate conclusions that the Court accepted the expert tikanga evidence presented about the importance of decision‑making authority to the concept of mana whenua. These conclusions, together with the Court's earlier deference to the panel's expertise on tikanga, highlight the increasing importance of expert evidence on tikanga in these types of disputes.
Opportunity for iwi to consider next steps
As appears to be becoming increasingly common in iwi disputes, the Court has allowed the parties to consider the findings in the judgment and explore options for resolution amongst themselves before the Court makes directions as to relief. The Court acknowledged the parties may be reluctant to start the process afresh given they have already spent significant time and resources on litigation. The Court was also mindful of the fact that the allocation of the CNI forests land represents a material part of the settlement of historical Treaty claims, with the process aiming to uphold tikanga and establish a fair and equitable balance among iwi; any relief provided by the Court "should uphold the integrity of the CNI Settlement and not threaten its intergenerational durability."
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