This week the Supreme Court dipped its toes into the troubled waters of the Crown’s settlement negotiations with Hauraki iwi in a decision on whether or not Ngāti Whātua can challenge elements of that settlement in court. Lawyer and mediator Baden Vertongen (Ngāti Raukawa) peels back the complex layers of that decision. 

In 2006, Ngāti Whātua sought to settle with the Crown their Treaty of Waitangi claims in Tāmaki Makaurau Auckland. That resulted in challenges by a number of overlapping Māori groups who also claimed interests in the region – including iwi that form part of the Hauraki collective.

Eventually, an agreement was reached which allowed Ngāti Whātua to proceed to settlement and the various iwi to work together on a range of issues and redress arrangements. Part of this agreement included scope for redress to be pulled out of these arrangements if it was needed for a later settlement with other iwi

In the course of subsequent negotiations to settle the claims of Hauraki iwi, some of the Tāmaki Makaurau land was tagged by the Crown and Hauraki iwi as redress to be plucked from those earlier arrangements.

Ngāti Whātua were unhappy both with this decision and the way in which it was made. And so they headed off to court arguing that it was contrary to their customary and traditional rights, the rights they had under their own settlement, and tikanga generally.

The High Court, and then the Court of Appeal, struck out this claim on the well-established rationale that the courts cannot interfere in the proceedings of Parliament. In the New Zealand legal system, Parliament is the body that gets to set the rules.

The courts’ job is to interpret and apply those rules. They don’t get to tell Parliament what laws it can and can’t pass, and if Parliament doesn’t like how a court interprets the law then Parliament is free to change it.

When it comes to Treaty of Waitangi settlements, those settlements generally are put into force by a new, unique, piece of legislation for each settlement. This means that a court challenge to a settlement negotiation is effectively an invitation to the courts to tell Parliament what legislation it should pass.

As a result, there is a series of cases involving challenges to Treaty settlements where the courts effectively say ‘Nope, out of our hands – sorry!’

Some of these cases are now 25 years old. But the Treaty settlement landscape looks very different in 2018.

Even 10 years ago challenges to a settlement negotiation were mainly from iwi who hadn’t settled.

Today most challenges come from iwi who have settled and are seeking to protect the rights that arise from their settlements; rights that often are enshrined in settlement legislation.

It’s in this context that the Supreme Court looks at the Ngāti Whatua challenge.

The Supreme Court sees that challenge as not all about what Parliament should or shouldn’t do. Instead, it sees the case as being about what rights Ngāti Whatua have under their own settlement and settlement legislation.

Defining those legal rights, and what a settlement Act might mean, is exactly what a court should be doing. So, the Supreme Court reverses the lower courts’ decision, permitting Ngāti Whātua to argue that the Crown’s proposed settlements will breach their existing legal rights.

That reasoning sets up an obvious tension, though: what happens if a court comes out and says that Ngāti Whātua does have legal rights that Parliament is planning to fiddle with? Isn’t that kind of that telling Parliament what it can or can’t do, and so shouldn’t the courts keep away from that?

‘Not really’ says the Supreme Court (with the Chief Judge saying it much louder than the others). Parliament can still do what it likes as the court simply is adding to the debate. And defining rights might be important if those rights are relevant in other circumstances down the track.

So this decision has some pretty interesting implications for both the Treaty settlement sector, and for the relationship between the courts and Parliament generally.

In a Treaty settlement context, it’s again another signal that the ground has shifted around existing Crown policy for overlapping claims. How the Crown approaches claims in an environment where some overlapping iwi have settled, and have settlement legislation behind them, needs to adapt and change.

But more interestingly, this is a shift in how the Supreme Court sees its relationship with Parliament. It’s potentially a signal that the Court won’t necessarily back away from issues that are heading to Parliament (or are before Parliament) but is instead prepared to warn ‘That would be a dumb decision – yes it’s your dumb decision to make, but make it with eyes open’.

Wherever that path leads us, it’s probably not going to be boring.