Treaty settlements are provided by the Crown, from Crown resources, in almost all cases. Private lands are not touched, are they? Well, in a very small number of cases, they can be due to prior arrangements.

Once a Treaty claim has been inquired into and reported on by the Waitangi Tribunal, it is possible for claimants to apply to the Tribunal to seek remedies. One such remedy is the recommendation that land is returned to Maori. The Tribunal cannot recommend the return of privately-owned land to Maori and cannot recommend the Crown to acquire privately owned land. One exception to this is a “Section 27B memorial”. If the Tribunal finds that a claim relating to that land is well-founded, it can make a binding recommendation that the Crown purchase the land and return it to Māori ownership as a way of settling a claim. This process is also known as “resumption”.

A Section 27B memorial refers to Section 27B of the State-Owned Enterprises Act 1986. It is a memorial placed on private land, that was previously owned by a State-Owned Enterprise. The rationale behind this provision was that, from the 1980s when the Crown privatised many government functions and disbanded and downsized former government departments, there still needed to be a way to access Crown land for Treaty of Waitangi Settlements.

For the Tribunal to recommend resumption, the following conditions apply:

  1. the claim to the land must be well-founded (that is the Tribunal must have already made that finding),
  2. the claim has to relate to land liable for binding orders (the land must have a 27B memorial on it),
  3. the land ought to be returned to Maori (in the Tribunal’s view), and that
  4. some or all of these applicable groups have been identified.

What does this mean for claimants in the Treaty settlement process looking to seek remedies from the Crown? The Court of Appeal recently examined the Tribunal’s statutory power to make binding recommendations about Crown forest licensed land and memorialised land. The Court found the Tribunal’s power to make binding recommendations is not to be left as merely an option of last resort. The Tribunal has an obligation to act on a resumption application and there are two possible outcomes – either the land is ordered to be returned to Maori, or it is not.

It now appears that binding remedies have been strongly affirmed as an option in Treaty claimants’ toolbox as they seek redress. The Tribunal, therefore, has an active duty to exercise the adjudication function it has been given. However, the statutory prerequisites are tight and must be met before the Tribunal can consider either recommending the resumption of land or not.

Private landowners or potential purchasers should check to see if their property if subject to these provisions – the “memorial” will be registered on the record of title and should be plainly obvious. Even so, those landowners identified will not necessarily be affected – there are many options available to the Tribunal. The Tribunal has the power to recommend any such terms and conditions as it considers appropriate, also ‘part’ of the land or simply an ‘interest’ in the land might also be returned under binding recommendations, rather than an entire property. Each case will be examined on its specific facts and merits by the Tribunal.

For more information:

If you as a Treaty claimant with a registered Wai claim have a former State-Owned Enterprise property that you wish to include in your Treaty settlement, we can provide advice on whether the land can be sought and assist you with taking that process forward. Seek professional advice if you are unsure or are facing problems. Our team are happy to help you understand the process, give us a call today on 04 472 0020 or email Bryan.gilling@morrisonkent.com.

Morrison Kent Lawyers | Settlements