The Waitangi Tribunal has ruled the Crown has breached Te Tiriti o Waitangi by allowing Māori land to become landlocked, and has failed to impactfully solve the issue.
The tribunal received 46 claims from the Taihape district in the central North Island, with many of the claims arguing the Crown allowed Māori land to become landlocked, and in doing so breached its duty under article 2 of the Treaty to protect the tino rangatiratanga of Māori over their own lands.
Over a quarter of Māori land around Aotearoa is landlocked, according to Herenga ā Nuku, the Walking Access Commission.
This issue is further exemplified in Taihape, according to the tribunal, as 70% of remaining Māori land in the area is landlocked, exceeding 50,000 hectares.
According to the Property Law Amendment Act 1975, land is defined as being landlocked if there is “no reasonable access to it”, meaning access to the whenua is either through non-traversable terrain, or through private property only.
Historical failings
Most landlocking of the Taihape district took place between 1886 to 1912, according to the tribunal’s report.
The Native Lands Act 1865 did not require the Native Land Court to keep access to all partitions. Upon the sale or lease of a land partition with road access, therefore, blocks of Māori land lying beyond it usually became landlocked.
The Crown introduced measures in 1886 to allow owners to apply for access to their lands as they passed through the Native Land Court or within five years thereafter.
The Crown observed, somewhat critically according to the report, that Māori owners in the district had made little use of these provisions.
However, the court still had discretion on whether to grant access, and any access granted was likely to be very costly to the Māori owners to put into effect.
From 1912, the court could grant retrospective access to landlocked Māori land, but not if the neighbouring land to be crossed had been bought for private or commercial use, leaving Māori ownership, before 1913.
The court could order access across such land, but only with the owner’s consent, effectively removing the court’s ability to restore access to landlocked Māori land in Taihape. As a result, Māori in Taihape had no legal avenue to unlock their land for more than 60 years.
Attempts to remedy landlocking
From 1975 Māori landowners could pursue access via the Supreme Court (now the High Court) without the need for any other land owner’s permission, but it was expensive to do so.
In 1993, Te Ture Whenua Māori Act provided a less costly pathway for Māori land owners to seek access via the Māori Land Court but prohibited the court from ordering access unless the neighbouring land owner agreed.
In 2002 this requirement for agreement was removed, but the neighbouring owner could “simply” appeal to the High Court, the tribunal said.
It was not until 2020 that appeals arising from Māori Land Court decisions on access could be heard in the more accessible Māori Appellate Court.
The tribunal, however, emphasised that the issue has always been the financial cost of restoring access to whenua, rather than legislative amendments.
Recommendations
The tribunal has recommended the Crown establish a contestable fund which Māori owners of landlocked land can apply for to pay for access to whenua granted by the Māori Land Court, including any compensation to neighbouring landowners.
While the fund would be contestable, funding should eventually be granted to eventually fund access to all significant landlocked blocks in Taihape.
The Tribunal stressed that the proposed fund should not be taken from the money set aside for historical treaty settlements.
- Pou Tiaki