Judgment may hold up talks over Treaty deals

Supreme Court. Photo / Supplied

The Waitangi Tribunal has been ordered to decide whether it should invoke rarely used powers to make the Government return forestry land to a Maori incorporation.

The Supreme Court's precedent-setting decision could have implications on the speed of the Treaty settlements process, an academic believes.

It relates to the Mangatu State Forest near Gisborne. The Government and Te Aitanga a Mahaki have been negotiating its status.

However, Alan Haronga, chairman of Mangatu Blocks Incorporated, has been fighting for the tribunal to make a determination on the Government to hand back 3490ha of forestry land independently of the settlement process.

The tribunal has special powers granted to it in 1989 which allows it to make binding recommendations on the return of licensed Crown forestry land. It has rarely used them.

A 2004 Waitangi Tribunal report found the way in which the Crown acquired the land - by saying it needed it for erosion control when it actually used it for a commercial activity - was a breach of the Treaty of Waitangi.

However, at the time the tribunal made no specific recommendation for remedy and, against Treaty negotiations which would have returned the land to the wider tribe, the tribunal turned down an application for an urgent remedies hearing from Mr Haronga to address the issue.

In a decision last week, the Supreme Court said lower courts erred in their judgments. It ordered the tribunal to hear Mr Haronga's claim.

"Contrary to the view taken in [the High Court and Court of Appeal], we consider that the tribunal, having decided the claim on behalf of Mangatu Incorporation was well-founded, was obliged to determine the claim ... for an order ... of the Treaty of Waitangi Act.

"The tribunal had a choice as to whether or not to grant the remedy sought and if so on what terms. But it had to make a choice. It was jurisdiction it could not decline."

Senior law lecturer at Victoria University Dr Grant Morris said essentially the tribunal had been told it was shirking its responsibilities.

The decision opened the door for more claimants to ask for binding recommendations, possibly slowing up the Government's settlement programme.

"The tribunal would rather have left this whole issue to be sorted out in negotiations," Dr Morris said.

"But the Supreme Court said, 'do your job'."