Actions of Office of Treaty Settlements reasonable in relation to a claim settlement process

Office of Treaty Settlements—reasonable for OTS to rely on the findings of the Waitangi Tribunal that the South Island Landless Natives Act 1906 (SILNA) represented an inadequate response to the Ngāi Tahu landlessness and to regard any grievances that members of Ngāi Tahu might have with the adequacy of land granted under SILNA as a matter appropriately addressed during the Ngāi Tahu settlement process rather than remaining outside it  

This complaint was about the acts and decisions of the Office of Treaty Settlements (OTS) in relation to the passing of legislation in 1996 and 1998 incorporating Te Runanga O Ngāi Tahu and enacting the Ngāi Tahu Claims Settlement Act. The complainant is a successor in title to land granted to his ancestor under the South Island Landless Natives Act 1906 (SILNA). This land had been granted to his ancestor individually, not to his iwi, and, from the passing of the Treaty of Waitangi Amendment Act in 1985, the complainant had a right to make a claim to the Waitangi Tribunal that the grant of the (substantially valueless) land in 1906 was inconsistent with the principles of the Treaty. The complainant was of Ngāi Tahu decent. He claimed that: the actions of OTS, in proposing or recommending legislation which had the effect of removing his right to lodge a claim with the Waitangi Tribunal regarding the adequacy of the SILNA land allocation made to his ancestors, were unreasonable, unjust, wrong or were based wholly, or partly, on a mistake of law or fact; the failure of OTS to consult with him directly, prior to recommending the removal of this right, was also unreasonable, unjust, wrong or based wholly, or partly, on a mistake of law or fact; and the opinion of the Crown Law Office that the Ngāi Tahu Claims Settlement Bill appeared to be ‘consistent with the Bill of Rights Act 1990’ was correct and he asked the Ombudsman to form an opinion on the application of the Bill of Rights Act to this situation.

The Ombudsman noted that the Ngāi Tahu settlement provided for the full and final settlement of all Ngāi Tahu claims and excluded the Waitangi Tribunal from considering such claims – the complainant is of Ngāi Tahu descent so the Ngāi Tahu settlement had the effect of depriving him of his right to lodge a claim with the Waitangi Tribunal that the land granted to his ancestor under SILNA was worthless.

The Ombudsman considered that from an administrative point of view it was reasonable for the OTS to rely on the findings of the Waitangi Tribunal that SILNA represented an inadequate response to Ngāi Tahu landlessness and to regard any grievances that members of Ngāi Tahu might have had with the adequacy of land granted under SILNA as a matter appropriately addressed during the settlement process rather than remaining outside it.

The Ombudsman was also of the view that the actions of OTS with regard to the consultation process were, in all the circumstances, reasonable. The Ombudsman noted that once Te Runanga O Ngāi Tahu was incorporated, the Runanga was the mandated representative of all Ngāi Tahu whanui. The Ombudsman considers it was reasonable for OTS to consult directly with the Runanga on behalf of all Ngāi Tahu whanui. The Ombudsman observed that the Runanga engaged in an extensive publicity campaign as part of the process of ratifying the settlement and that there was a reasonable opportunity for SILNA owners to make submissions challenging the inclusion of SILNA land allocation grievances in the settlement process.

When asked by the complainant to consider matters relating to legal interpretation, the Ombudsman advised that s/he does not ‘determine’ either disputed facts or questions of law. That is the function of the Courts. Nevertheless, section 22 of the Ombudsmen Act does contemplate an Ombudsman forming an opinion that the action complained of ‘appears to have been contrary to law’ or ‘based wholly or partly on a mistake of fact or law’.  To that extent, it is incumbent on an Ombudsman to explain why or why not a particular conclusion on these issues has been reached. It is thus not a matter of an Ombudsman ‘clarifying the law’, but of explaining how a particular opinion is reached. The Ombudsman also explained that: 

It was the Waitangi Tribunal that determined it had no jurisdiction to inquire into the complainant’s claim. An Ombudsman cannot consider complaints about the Tribunal’s determinations. Such complaints can only be pursued in the Courts.

Parliament has enshrined the outcome of the settlement with Ngāi Tahu in legislation. An Ombudsman has no jurisdiction to question the proceedings of Parliament. The complaint was not sustained.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.