Appeal court rules a finality clause blocked a declaration of inconsistency over a settled claim
The Court of Appeal of New Zealand has dismissed an appeal seeking to challenge the finality of a Treaty settlement involving land tied to a Crown-owned listed company.
In Wairarapa Moana Ki Pouākani Incorporation v Attorney-General [2026] NZCA 255, the court held that the ouster clause in the Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua Claims Settlement Act 2022 barred the High Court from hearing a declaration of inconsistency.
The dispute concerned land in the central Waikato, including the site of the Maraetai Power Station complex on the Waikato River. The Crown transferred that station and the surrounding land to Mighty River Power Ltd, which later became Mercury NZ Ltd. The company now operates as a mixed-ownership listed entity, with the Crown holding about 51 percent of the shares. The land remained subject to the resumption regime in the Treaty of Waitangi Act 1975, which allows the Waitangi Tribunal to compel the Crown to return land transferred to former state-owned enterprises to Māori ownership.
Wairarapa Moana Inc accepted that the settlement legislation had fully and finally settled its Wai 85 claim and had ousted the jurisdiction of the Waitangi Tribunal and the courts. It argued, however, that extinguishing the claim was inconsistent with its right under s. 27(3) of the New Zealand Bill of Rights Act 1990 to bring civil proceedings against the Crown, and it sought a declaration to that effect.
The court rejected that argument. It found that s. 15(4) of the Settlement Act used "very broad language" to bar any judicial inquiry "in respect of" the historical claims, the deed of settlement, the Act, and the redress provided. A narrow reading, the court said, would render parts of the provision redundant and would conflict with a statutory purpose centred on finality.
The court noted that the Crown provided significant financial, commercial and cultural redress to an iwi and "demands certainty in return to secure its 'quid pro quo'". An enhanced package had increased financial redress by about $22 million to $115 million, with a further $5 million offered to restore the Wairarapa Moana. The court said finality clauses ensured that "dissidents" could not use judicial proceedings to keep settled grievances alive, protecting the settlement for the broader iwi and the Crown.
The court also found that a declaration would inevitably reopen and re-litigate a settlement that the Crown and Parliament intended to be full and final, drawing the court into questions of government policy and fiscal constraint. It distinguished the Supreme Court's decision in Fitzgerald v R, observing that the s. 27(3) right could be subject to justified limits, unlike the absolute right against disproportionately severe punishment at issue in that case.
The court recorded that more than 70 Treaty settlement Acts contained finality provisions in broadly similar terms.
The court dismissed the appeal and awarded costs to the respondent.
