Pouakani land: Complexities, sensitivities and hara as a tough decision looms

Explainer: A Wairarapa hapū says a Supreme Court ruling means it should be removed from a proposed treaty settlement that is in its final stages.

The Supreme Court this week ruled in favour of Wairarapa Moana in a landmark case, which could potentially require the Crown to return land occupied by the Maraetai power station in Waikato.

But a settlement due to have its final reading in Parliament could extinguish Wairarapa Moana's chance to have its case heard, which it said would be the Foreshore and Seabed all over again.

The dispute centres on land at Pouakani, on the banks of the Waikato River near Mangakino, about 400km from the Wairarapa.

That's because in 1916, the Crown gave Wairarapa Moana the land at Pouakani - which it took from Raukawa and Ngāti Tūwharetoa through the Native Land Court - as compensation for its broken promises of a reservation when it took lakes Wairarapa and Ōnoke.

Then, in 1949, the Crown compulsorily acquired 787 hectares of that land when it built Maraetai, which is today operated by state-owned enterprise Mercury Energy.

Wairarapa Moana took a case to the Waitangi Tribunal - WAI 85 - asking for a resumption order, one of the few judicial powers the Tribunal has. If triggered, it could compel the Crown to give back the site of the dam, which could cost hundreds of millions of dollars.

A resumption order, which can only be made for state-owned assets or Crown forestry lands, has never been fully exercised before.

But in a preliminary finding released in 2020, the Tribunal said Wairarapa Moana should have the land at Pouakani returned, despite its lack of mana whenua status in Waikato.

"It's looking at using that power, so that in itself is significant," said Carwyn Jones, head lecturer for Ahunga Tikanga, Māori Laws at Te Wānanga o Raukawa. "There's quite a lot of water to go under the bridge before we get to that point though."

The Waitangi Tribunal is still deliberating on its final recommendations for the Wairarapa Moana claim.

Court challenges and tikanga

The government challenged the Tribunal's decision in the High Court, which backed the Crown's argument that allowing Wairarapa Moana to have the Waikato land would be a breach of tikanga.

It found the Tribunal misinterpreted its resumption powers, and that it had breached both tikanga and Treaty principles because its decision conflicted with the rights of iwi who have mana whenua status.

But on Wednesday, the Supreme Court - in a majority decision - found the High Court decision was wrong, because it didn't consider other principles of tikanga such as hara, ea or utu, which provide balance to the grievance - particularly those legitimate grievances felt by Raukawa and Tūwharetoa, who are mana whenua.

"When you're applying tikanga it needs to be very context-specific," Jones said.

"That's something I think the courts, as demonstrated by the High Court decision in this case, the courts have really struggled to understand the full context of what's relevant when applying tikanga."

Wairarapa Moana said the decision cleared the way for the Waitangi Tribunal to make a final determination of whether the Pouakani land should be returned through the resumption order.

"Certainly the ruling allows us to take that forward now in the Tribunal, and of course we would hope that the prime minister and minister of Treaty settlements would take this matter very seriously in terms of due process and natural justice, and allow us to complete that process," the chair of Wairarapa Moana Incorporated, Kingi Smiler, said.

That's because Wairarapa Moana now find themselves in a race against a wider treaty settlement.

Race against settlement

Ngāti Kahungunu ki Wairarapa Tāmaki Nui-a-Rua is the wider iwi which Wairarapa Moana afffiliate to, and it has been involved in nearly 30 years of negotiations to reach settlement.

But reaching a settlement extinguishes the right to challenge historical land claims in the Waitangi Tribunal. So, because Wairarapa Moana are part of the wider settlement, their claim to Pouakani would go if the settlement passes. Land taken away by the Crown for a third time, is how Smiler described it.

The third and final reading in Parliament is imminent and, with a Labour majority, it's almost certain to pass.

Smiler said continuing the settlement legislation in the face of the challenges was a cynical move by the Crown to try and avoid a possible resumption order.

If passed, the ability for due process and a fair hearing would be stripped from them, Smiler said, which would be tantamount to the much-maligned Foreshore and Seabed Act.

However, Ngāti Kahungunu ki Wairarapa Tāmaki Nui-a-Rua said their people have waited long enough for a settlement, and any further delay would be unacceptable.

"Our people made it clear to us last year when we voted on an enhanced settlement package that they did not want to wait any longer," the chair of the settlement trust, Haami Te Whaiti, said in a statement.

"From our perspective, this Supreme Court judgement does not negatively reflect on our settlement. We are hopeful our settlement will be able to continue progressing considering this decision."

Other opposition

For Ngāti Tūwharetoa and Raukawa, who are mana whenua of the southern Waikato River, the challenges around Pouakani are particularly sensitive.

Ruakawa lost much of its takiwā through the hunger of the Native Land Court in the late 19th century, before several of its communities were flooded as the Crown dammed the upper reaches of the Waikato.

"For Raukawa it has been an ongoing source of grievance that land lost to them in their own takiwā was used as redress for a group with no ancestral connection to that area, and that as a result of that Crown action Wairarapa Moana Inc are the largest single landowners in the Raukawa takiwā," Raukawa said in a statement provided to RNZ.

"[We're] a bit disappointed that the Supreme Court decision hasn't given any finality to the issue and it's breathed life back into what's been quite a challenging and hurtful issue for Raukawa," said Baden Vertongen, a spokesperson for Raukawa in a subsequent interview.

"I think there's some really good discussion in the Supreme Court decision about how valid the Raukawa concerns were and how understandable their concern was about the use of whenua in the Raukawa takiwā to settle grievances for Ngāti Kahungunu."

The Supreme Court also recommended interested communities explore further tikanga processes to try and resolve grievances, to try and reach whaka-ea, or a restoration of balance.

"I think the Tribunal is very conscious of the fact that the relationships between the various iwi parties involved is something that needs to be considered and thought about," Carwyn Jones said.

"These questions around how to get to a state of resolution are not simply going to be about returning the land."

When asked if that was possible, Vertongen said: "Never say never."

However, Wairarapa Moana said this would be unlikely if the settlement passes as it's written. That, Kingi Smiler said, would not help in achieving whaka-ea.

He insisted there was a solution: its claim should be removed from the Ngāti Kahungunu ki Tāmaki Nui-a-Rua settlement altogether, to allow its issues to be resolved by the Waitangi Tribunal.

"It allows the whānau to do the rest of the settlement, and it allows Wairarapa Moana to carry the WAI 85 claim directly through the Waitangi Tribunal. But at the moment the Crown are forcing the settlement trust to settle with WAI85 included because they're obviously concerned about the extent of the compensation that will flow should the Waitangi Tribunal order the resumption.

"They're just looking after their own interest instead of due process.

"All of this is created by the Crown. So the hara with all of us - Tūwharetoa, Raukawa, Pouakani, and Wairarapa Moana, Ngāti Kahungunu - all of these issues have been created by the Crown and that in a set of circumstances the Crown continue to manipulate the situation."

In a statement, Treaty Negotiations Minister Andrew Little said he was considering the Supreme Court's ruling, and was waiting on the advice of officials.

Considering all the complexities, sensitivities and hara involved, a tough decision looms.