KEY POINTS:
The Waitangi Tribunal could yet order the Government to return a $10 million Coromandel Landcorp block to Maori claimants.
And unlike general tribunal rulings, the decision would be binding. A ruling favouring Maori claimants would force the Government to return Whenuakite Station to Hauraki iwi.
However, the tribunal
has delayed making a decision on whether to grant an urgent hearing into the claim until September, after a Government decision to continue a review of the sale of state-owned land and an assurance Whenuakite and a 9.2ha coastal block at Rangiputa in the Far North would not be sold for at least a year.
In a memorandum issued on Friday, Maori Land Court judge Stephanie Milroy said the new timeframe allowed claimants to Whenuakite and the Crown time to negotiate outstanding settlements.
But she ordered a review for September to consider progress, with a judicial conference set down for October to decide whether the hearing should proceed.
The decision gives the Government time to seek to reach an agreement with Hauraki that avoids a potentially embarrassing hearing that could launch renewed legal avenues for Maori redress and spark a shake-up over the way Treaty claims are negotiated.
The ruling raises fresh questions about the timing and motives of last month's Government backdown on the sale of the two Landcorp farms.
The decision to further extend the sale deadline for at least a year came on the day the Government made submissions to the tribunal to delay the judicial conference.
Bell Gully commercial and Maori law expert Damian Stone said the Government's decision would have been strongly influenced by concern about a possible tribunal hearing.
He said there was a real chance the tribunal would have ordered the return of Whenuakite to Maori.
"This is one area that could head straight into a remedies hearing. You have the tribunal's Hauraki report in 2006 that found a number of claims were well founded ... The evidential background had been set. All it really needed was someone to get up and argue, 'We have a claim here, these are the lands we want back. [Waitangi Tribunal] please order it'."
And the tribunal had the power to order the land's return. "The binding recommendation is the sword that hangs over the Crown in relation to any of these claims issues."
The power is given to the tribunal in an amendment to the State Owned Enterprises Act 1986, which allowed the Government to transfer Crown land to state-owned enterprises.
The Maori Council took legal action to prevent the transfer of any land subject to a Treaty claim.
The Court of Appeal agreed and held that the Crown was obliged to administer the act so Maori Treaty claims to land transferred to SOEs were protected.
Following the decision, the Crown and Maori agreed to a mechanism that would allow the Crown to transfer land to SOEs, while also ensuring it would remain available for future Treaty settlements.
Any land transferred had a "memorial" placed on the title, allowing it be compulsorily repurchased by the Crown if the Waitangi Tribunal recommended its return to Maori.
The tribunal can make such a recommendation if it finds a claim is well founded.
The tribunal does not consider any changes that have taken place since the land was transferred to the SOE, and is able to make a binding recommendation regardless of whether the land is still owned by the SOE or has been sold to a third party.
"There is a sword hanging over the Crown's head and there is no real certainty how that sword may fall," Mr Stone said. He said any hearing seeking a binding recommendation would have major impacts for the Crown and claimants.
"Some can take the opportunity now because they have a tribunal report. Groups have always been able to argue that if we can't reach an agreement on these things through good-faith negotiation, our other option is to go to the tribunal and require you [the Crown] to return these lands .
"If the tribunal does so, that will mean claimants ... would look more seriously at seeking binding recommendations from the tribunal, as opposed to negotiating directly with the Crown."
Mr Stone said there were strong grounds for the tribunal to order a binding recommendation.
Powers of the Waitangi Tribunal
* The Government must comply with binding tribunal rulings.
* The tribunal has been able since 1986 to order state-owned enterprises' land to be transferred to Maori to settle Treaty claims.
* The Government is required to buy land and return it to claimants. This includes land since sold to a third party, irrespective of any improvement. Third-party owners cannot appear before the tribunal.
* A binding recommendation has been issued once: in a claim covering the Turangi township.
