Waitangi Tribunal releases priority report on landlocked Māori land…

The Waitangi Tribunal has recently released a priority report on landlocked Māori land in the Taihape inquiry district.

While landlocking is an issue for Māori land across Aotearoa, it is a particularly serious issue in the Taihape inquiry district. The report notes that more than 70 percent of remaining Māori landholdings in the inquiry district are landlocked – in excess of 50,000 hectares. 

Landlocking occurred primarily through the Native Land Court system. The Native Land Court was established in 1865 and allowed individuals to have their interests in Māori land recognised through an award of customary title.

Initially, the Native Land Court had the power to partition blocks of land but was not required to make provision for roads or rights of way to access partitioned land.

Over the period between 1865 and 1912, the Crown made a series of amendments to the law governing the Native Land Court which allowed parties to apply for an access order to their land.

This process was rarely used, and often restricted by constraints such as time limits and the consent of neighbouring landowners. The Tribunal noted that applying to the Court was also inaccessible due to the costs involved in making the application.

The Tribunal found that from at least 1905 the Crown was aware of the issue of landlocked Māori land and failed to address the issue in native land legislation. Further, the Crown has a duty of active protection to Māori and should have ensured that Māori owners kept access to their land without having to go to such lengths to maintain it. 

The ongoing lack of access to landlocked lands in the Taihape inquiry district has limited new economic opportunities for iwi and hapū of the inquiry district. It has also restricted their ability to exercise kaitiakitanga and ensure the intergenerational transmission of their mātauranga (knowledge) relevant to their lands. The Tribunal considered the lack of ready access to the remaining lands to have caused significant prejudice.

The Tribunal concluded that the Crown, including the Department of Conservation and Ministry of Defence, had acted in breach of the Treaty in regard to landlocking in the Taihape area.

Among other breaches, the Tribunal found that:

• The Crown had breached the principle of active protection by failing to address the considerable risk of landlocking in the area;
• The remedies introduced by the Crown to resolve the issue of landlocked Māori land were ineffective, and breached the principle of equity by treating owners of Māori land in a way that was unequal to owners of general land.
• Giving the Native Land Court the discretion to order access, and making it the owners’ responsibility to pay for this, was a clear breach of the plain terms of article 2, which guaranteed te tino rangatiratanga over whenua.

The Tribunal concluded the remedy for these breaches must be financial, and recommended that the Crown establish a contestable fund of money which Māori owners of landlocked land in the district can apply to pay for the access that may be granted by the Māori Land Court.

The Tribunal noted that if they had the jurisdiction to do so, they would recommend such a fund was set up for all areas of landlocked land across the county.

Importantly, the Tribunal recommended that the money for this fund should not be taken from the sum set aside to settle the district’s historical claims. The main report for the Taihape inquiry district has not yet been completed.