Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) - [2022] 3 NZLR 601

Tikanga — Role of court — Declarations sought about which iwi was mana whenua — Iwi having conflicting views of tikanga — Whether mana whenua exclusive or can be shared — Whether recognition of mana whenua by other iwi required — Ngāti Whātua Ōrākei have established mana whenua over the area they claim in Tāmaki Makaurau according to their tikanga — Other iwi have established that their tikanga does not recognise their claims are subject to Ngāti Whātua Ōrākei’s claim.

Tikanga — Tikanga as law — Tikanga to be determined by the iwi or hapū — Governs process and substance — Courts do not make, freeze or codify tikanga — Court must be careful and cautious in identifying the tikanga relevant to the issues — Tikanga-consistent processes to dispute resolution to be preferred — Finding on tikanga analogous to establishing foreign law — Expert evidence — Role of pūkenga.

Treaty of Waitangi — Settlement of grievances linked to prerogative power — Also reflects Crown’s rights and powers as a natural person — Cannot override the rights and liberties prescribed by statute, common law or tikanga.

Treaty of Waitangi — Crown obligation to protect tikanga — Obligations to act reasonably and in good faith with mutual cooperation to protect tikanga — May require consultation with other iwi whose tikanga interests affected — Extends to active protection — Treaty settlements invoke duty to provide redress — Crown may have to make decisions inconsistent with the tikanga of another iwi — Where providing redress for past breaches Treaty of Waitangi aptly a mandatory consideration.

Treaty of Waitangi — Crown, iwi and hapū obligations in Treaty settlement context — Obligation to cooperate in tikanga-consistent processes — Crown failure to assign expert on tikanga to settlement processes — Obligation not to act unreasonably having regard to tikanga — Risk of prejudicing overlapping interests — Time required to resolve overlapping tikanga interests with tikanga-consistent processes.