Supreme Court Partially Grants Appeal on Treaty and Forestry Matters

OUTCOME: Allowed in Part

ESTATE OF [NAME] v [NAME]-[NAME] [2026] NZSC 79 [10 June 2026]

IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA SC 178/2025 [2026] NZSC 79

BETWEEN ESTATE OF [NAME] First Applicant [NAME] Applicant AND [NAME]-[NAME] First Respondent WAITANGI TRIBUNAL Second Respondent [NAME] AND [NAME] Respondents [NAME] Respondent [NAME] Respondent [NAME] [ADDRESS]: [COUNSEL] CJ, [COUNSEL] and [COUNSEL] JJ Counsel: [redacted] [COUNSEL] D [COUNSEL] and [COUNSEL] W [COUNSEL] for First Respondent [NAME] [RESPONDENT] for Second Respondent [RESPONDENT] R [RESPONDENT] for Third Respondents [NAME] [COUNSEL] for Fourth Respondent [COUNSEL] KC, [COUNSEL] and [COUNSEL] P [COUNSEL] for Fifth Respondent No appearance for Sixth Respondent Judgment: 10 June 2026

JUDGMENT OF THE COURT

A Leave to appeal is granted in part ([NAME] v [NAME]- [NAME] [2025] NZCA 597). B The approved questions are: (a) whether the Court of Appeal erred in its approach to the requirements for resumption in s 8HB of the Treaty of Waitangi Act 1975; and (b) whether the Court of Appeal erred in its approach to the Waitangi Tribunal’s discretion to award compensation under sch 1 of the [NAME] 1989. C The application for leave to appeal is otherwise dismissed. ____________________________________________________________________

REASONS [1] The first applicant (claimant in Wai 274 and Wai 283, representing [NAME]) and second applicant (claimant in Wai 1489, representing [NAME]) seek leave to appeal from the judgment of the Court of Appeal in [NAME] v [NAME]-[NAME].1 They advance three proposed grounds: (a) Whether the Court of Appeal erred in its approach to the requirements for resumption in s 8HB of the Treaty of Waitangi Act 1975. This is a question about the required nexus between the [NAME] forest land in issue and a breach of Te Tiriti o Waitangi. (b) Whether the Court of Appeal erred in its approach to the Waitangi Tribunal’s discretion to award compensation under sch 1 to the [NAME] 1989 (CFAA). This is a question about the calculation of the appropriate percentage of the “specified amount” assessed under cl 3 of sch 1.2

1 [NAME] v [NAME]-[NAME] [2025] NZCA 597 (Courtney, [NAME] JJ) [CA judgment]. 2 See also sch 1, cl 2(b).

(c) Whether the Court of Appeal erred in its approach to the rate of return applicable on compensation awarded under cl 3(c) of sch 1 to the CFAA. This is a question about whether the prescribed rate of return on compensation for the first four years from the date of transfer of the relevant [NAME] forestry assets (or the date the claim was filed, if that came first) may be extended by the Tribunal under cl 6(b) of sch 1. The rationale for such an extension is that, for reasons beyond its control, the [NAME] could not carry out its obligations under the 20 July 1989 agreement between the [NAME] and [NAME]. [2] The first respondent (the [NAME]-[NAME]) opposes leave on all grounds. The second respondent (the Waitangi Tribunal) abides the decision of the Court and, if leave is granted, the appeal. The third and fourth respondents (claimants in Wai 499, Wai 874 and Wai 507, representing [NAME]) support the application for leave to appeal. The fifth respondent ([NAME], representing [NAME]) abides the Court’s decision as to leave. [3] Leave to appeal is granted on grounds one and two. [4] Turning to ground three, we accept that the issue is commercially significant because the initial rate is lower than the rate payable, absent any extension, following expiry of the four-year period.3 We also accept that there was a very long period of delay in this case while the Tribunal completed its recommendations. The Tribunal declined to extend the four-year period, except to account for delays arising from the COVID-19 lockdowns.4 On judicial review, [NAME[NAME] held that the Tribunal had erred in its approach to the causes of delay and ordered that the Tribunal should reconsider its recommendations in this regard.[ADDRESS] of Appeal agreed with [NAME[NAME] that the Tribunal had erred in its approach to this issue and had failed to engage with the necessary lines of inquiry.6

3 In declining leave to appeal directly from the High Court on this ground, we noted that the proposed appeal raised significant issues: [NAME] v [NAME]-[NAME] [2023] NZSC 82 ([NAME] JJ) at [13]. 4 Waitangi Tribunal The Mangatū Remedies Report (Wai 814, 2021) at 344. 5 [NAME]-[NAME] v Waitangi Tribunal [2023] NZHC 132 at [232], and see at [230]. 6 CA judgment, above n 1, at [148] per [NAME[NAME], with whom [NAME] and [NAME] JJ agreed on this issue: at [190].

[5] The High Court and Court of Appeal both followed this Court’s approach to the issue as set out in [COMPANY] v [COMPANY].7 This is a recent judgment of this Court and we accept the [NAME]’s submission that it is not relevantly distinguishable. The applicants invite us to revisit it. We do not consider that the argument that it was wrongly decided has sufficient prospects of success to justify leave. We accordingly decline leave on the third ground.

Solicitors: [redacted] [NAME] | [NAME], [NAME] for [RESPONDENT] [NAME], [NAME] for Second Respondent [RESPONDENT], [NAME] for Third Respondents [NAME], [NAME] for Fourth Respondent [RESPONDENT], Auckland for Fifth Respondent

7 [COMPANY] v [NAME] NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 at [127]–[139] per Winkelmann CJ, Glazebrook and Williams JJ, and see at [166] per [NAME[NAME] and at [230] per O’Regan J, both agreeing with the majority on this point.