The Waitangi Tribunal’s latest report, He Whenua Karapotia, He Whenua Ngaro: Priority Report on Landlocked Māori Land in the Taihape Inquiry District, was released today in pre-publication format. It precedes the Tribunal’s main report on the broader Taihape: Rangitīkei ki Rangipō district inquiry.
Looking across Ruahine Forest Park toward landlocked Māori land in Te Kōau A during a Tribunal visit to Big Hill Station, February 2020.
Landlocking affects Māori land nationally but is a particularly acute problem in Taihape, where more than 70% of remaining Māori land holdings are landlocked – exceeding 50,000 hectares. Māori have no legal or physical access to these lands, despite retaining ownership of them. In its report, the Tribunal finds that the Crown allowed Māori land in Taihape to become landlocked and has failed to remedy the problem, breaching treaty principles and causing long-term prejudice.
The Tribunal concludes that flaws in the Crown’s native land legislation caused landlocking in the inquiry district. In the decades before 1912, when most landlocking in Taihape occurred, the Crown did not require the Native Land Court to preserve access to Māori land as it was partitioned. Upon the sale or lease of a partition with road access, therefore, blocks of Māori land lying beyond it usually became landlocked. From 1886, Māori land owners could apply for access to their lands as they passed through the court or within five years thereafter. These provisions were ineffective in practice, however, as they still gave the court discretion on whether to grant access and required Māori owners to pay the significant cost of creating any access granted. The Tribunal finds that the Crown’s general failure to address the risk of landlocking in its native land legislation before 1912 breached the treaty principles of active protection, partnership, and equity. Moreover, the Crown’s expectation that Māori land owners apply to the court to retain access to their own land, and pay for it, undermined the treaty guarantee of ‘full exclusive and undisturbed possession’ of land. Māori should not have had to take such steps to retain access, the Tribunal argues, because the risk of landlocking arose from legislation imposed on them, not actions they had taken.
The Tribunal also finds that the Crown’s attempts to remedy landlocked Māori land through legislation have been flawed and ineffective, breaching treaty principles. From 1912, the Native Land Court (and later Māori Land Court) could order retrospective access to landlocked Māori land. But if the neighbouring land to be crossed had left Māori ownership before 1913, the court had no power to order access, or could do so only with the neighbouring owner’s consent. This restriction in the law effectively removed the court’s ability to restore access to landlocked Māori land in Taihape, which had almost entirely become landlocked – as neighbouring land was sold – before 1913. As a result of these measures, Māori of the inquiry district had no legal avenue to unlock their land for over sixty years. The Crown conceded that its remedies in this period were ineffective and prioritised European land owners’ interests to the disadvantage of Māori land owners, breaching treaty principles.
Since 1975 the Crown has tried to improve its remedies, but they have remained ineffective for owners of landlocked Māori land in Taihape, the Tribunal finds. From 1975, Māori owners could seek access via the Supreme Court (now the High Court) without the need for any other land owner’s consent, but this remedy was very costly to pursue. In 1993, Te Ture Whenua Maori Act provided a less expensive pathway for Māori land owners to seek access via the Māori Land Court, but reimposed a requirement for the neighbouring land owner’s consent. This requirement was removed in 2002, but the neighbouring owner could simply appeal to the High Court. From 2020, appeals could finally be heard in the more accessible Māori Appellate Court. Despite these changes, no Māori land owners in Taihape have successfully used these remedies to unlock their land. The Crown’s longstanding failure to provide effective remedies breaches several treaty principles, including the principle of redress, the Tribunal finds.
The Tribunal concludes that the key flaw in the Crown’s remedies is that they have continued to place the huge cost of restoring access on the owners of landlocked Māori land themselves. As well as being ineffective, this approach has treated owners of landlocked Māori land no differently than owners of general land seeking to access landlocked land they have purchased. In this respect, the Crown’s remedies breach the principle of equity.
The Tribunal finds that lack of ready access to much of their remaining land base has caused significant prejudice to whānau and hapū of the Taihape district, undermining their opportunities for economic development, ability to exercise kaitiakitanga, and intergenerational transmission of mātauranga relating to these lands.
To remedy landlocking in the Taihape district, the Tribunal recommends the Crown establish a contestable fund to which Māori owners of landlocked land can apply to achieve access. The fund would pay for access that may be granted by the Māori Land Court, including any compensation payable to neighbouring landowners. The Tribunal stresses that funds for this purpose should not be taken from the sum set aside to settle the district’s historical claims.
The Tribunal received 46 claims in the Taihape district inquiry. Hearings took place from 2016 to 2021. The Taihape panel comprises Justice Layne Harvey (presiding), Professor Tā Pou Temara, Dr Monty Soutar, and Dr Paul Hamer. Sir Douglas Kidd (now resigned) and the late Dr Angela Ballara were former members of the panel.
Major issues covered
He Whenua Karapotia, he Whenua Ngaro: Priority Report on Landlocked Māori Land in the Taihape Inquiry District – Pre-publication Version
Wai 2180 - The Taihape - Rangitikei ki Rangipo Inquiry
He Whenua Karapotia, He Whenua Ngaro: Priority Report on Landlocked Māori Land in the Taihape Inquiry District is an early outcome of the Taihape: Rangitīkei ki Rangipō district inquiry. The Tribunal reported on landlocking as a matter of priority because it was a pressing issue in the inquiry district; more than 70 per cent of remaining Māori land holdings in Taihape – exceeding 50,000 hectares – were landlocked at the time of inquiry.
The broader Taihape district inquiry encompasses 46 historical claims about Crown actions and omissions in the area known as Inland Pātea, west of the Ruahine ranges and south of the Kaimanawa mountains. Hearings took place from 2016 to 2020. The inquiry panel comprised Justice Layne Harvey (presiding), Dr Paul Hamer, Dr Monty Soutar, and Professor Tā Pou Temara. Sir Douglas Kidd and the late Dr Angela Ballara were former panellists.
He Whenua Karapotia, He Whenua Ngaro considers whether the Crown was responsible for landlocking of Māori land in the inquiry district – which largely occurred between 1886 and 1912 – and has provided adequate remedies for the problem since. It also considers whether localised Crown actions in the 1980s and 1990s compounded access difficulties for some claimants with landlocked land.
On the first issue, the Tribunal concludes that landlocking occurred in Taihape because the Crown did not require the Native Land Court to preserve access to Māori land as it was partitioned. Upon the sale or lease of a partition with road access, therefore, blocks of Māori land lying beyond it usually became landlocked. Although from 1886 Māori could apply for access to their land as it passed through the court (or within five years thereafter), these measures were ineffective because they still gave the court discretion on whether to grant access and required Māori to pay the large cost of creating any access granted. The Tribunal finds that the Crown’s general failure to address the risk of landlocking in its native land legislation before 1912 breached the principles of active protection, partnership, and equity, and the expectation that Māori apply to the court to retain access to their own land, and pay for it, also undermined the Treaty guarantee of ‘full exclusive and undisturbed possession’ of land.
On the second issue, the Crown conceded that its remedies for landlocked Māori land from 1912 to 1975 were ineffective, inequitable, and indirectly discriminated against Māori. During this period, the Native Land Court/Māori Land Court could order retrospective access to landlocked Māori land. But, if the neighbouring land to be crossed had left Māori ownership before 1913, the court had no power to order access or could do so only with the neighbouring owner’s consent. This restriction in the law effectively removed the court’s ability to restore access to landlocked Māori land in Taihape, which had almost entirely become landlocked – as neighbouring land was sold – before 1913. While it accepts the Crown’s concessions, the Tribunal finds that the failure of the Crown’s remedies in this period breached the principle of redress.
The report goes on to conclude that, despite legislative improvements, the Crown’s remedies since 1975 have remained ineffective for Māori with landlocked land in Taihape. The key flaw in these remedies, the report argues, is that they have continued to place the huge cost of restoring access onto the owners of landlocked Māori land. This approach has been not only ineffective but unfair, treating the landowners no differently than owners of general land seeking to access landlocked land they have purchased. The Tribunal finds that the Crown’s failure to provide fair and effective remedies since 1975 breached the principles of equity and redress.
On localised issues, the Tribunal finds that the Crown ignored opportunities to enhance access to some landlocked Māori land in the 1980s and 1990s, when it negotiated better access to its nearby conservation land, and that this failure breached Treaty principles. The Crown also conceded that it breached Treaty principles by failing to consult the owners of neighbouring landlocked Māori land when it acquired certain blocks for defence purposes.
The Tribunal finds that whānau and hapū of the Taihape district have been significantly prejudiced by the lack of ready access to much of their remaining land, which has undermined their opportunities for economic development, their ability to exercise kaitiakitanga, and the intergenerational transmission of mātauranga relating to these lands.
To redress the prejudice caused by its Treaty breaches, the report recommends that the Crown establish a contestable fund to which Māori owners of landlocked land in Taihape can apply to achieve access. The fund would pay for access that may be granted by the Māori Land Court, including any compensation payable to neighbouring landowners. The Tribunal recommends that funds for this purpose should not be taken from the sum set aside to settle the district’s historical claims.