Treaty Negotiations Minister Andrew Little is ruling out a law change to open up private land for return to Māori in treaty settlements.

Photo: RNZ / Dan Cook

It comes as protesters enter their third week of occupying Ihumātao in South Auckland in a bid to stop a housing development and have the land returned to iwi.

The protest has driven calls for the return of confiscated lands to Māori but many MMP's refuse to say where they stand on the issue.

I riro whenua atu - me hoki whenua mai - is a catch-phrase being used by those at the occupation, which means the land was taken, and so the land should be returned.

But that's not how it works. The Waitangi Tribunal can't legally order the Crown to acquire or return private land that was confiscated to Māori.

It is at the discretion of the government whether to consider negotiating for the return of private lands, but it generally does not.

Some Māori leaders have spoken out that the rule is unfair and needs to go, but the Minister Andrew Little said that's not going to happen.

"I don't ever see a time where we would pass a law that says the Waitangi Tribunal can make orders in relation to privately owned land," he said.

"That would be a hornets nest that no-ones going to bite off."

He said in short, the Crown cannot return what it no longer owns.

"And the truth is there is a lot of confiscated land and to return that land it would be a massive cost to do so. I think it is just accepted that it is not practical to do so."

New Zealand First MP Shane Jones does not support a law change.

He said treaty settlements are about trade-offs, and balancing affordability, historical wrongdoing and equity.

"It's a long-standing principal that our party will not be moving away from that in the settlement of tribal grievances, that the Crown respects private property rights," he said.

"I think the voices who want a renegotiation of that principle reflect callowness."

A usually vocal advocate for the Ihumātao protesters, Green-Party co-leader Marama Davidson, declined to comment on the calls for a law change.

In the past, the Green's have said Treaty settlements do contribute to injustices and it wants to review the settlement process altogether.

Māori Development Minister Nanaia Mahuta would not answer questions about it either. She released a one line statement that the Government is focussed on a peaceful resolution for Ihumātao and fully supports the talks that are underway.

Tāmaki Makaurau MP Peeni Henare said private land was not on the table in negotiations he had been involved with, which is a sore point for Māori.

But he would not say whether it should change.

"As someone who has been through those processes, and as a Māori, we always rue the fact that we can't have access to that in many of the negotiations I have been privy to and apart of in the past," he said.

"Which makes it even more complicated."

Iwi or groupings of tribes who reach settlement get between only two and four percent of the total value of what was taken from them in redress.

There is very little land that is not privately owned - so iwi are limited in what they can negotiate the return of with the Crown.

More often than not, iwi are expected to use their financial compensation to buy back land if it comes up for sale.

In the case for Ihumātao, the local iwi authority wanted to get the land back, but it was privately-owned and very expensive.

Whanganui iwi leader Ken Mair, who was part of the three month Māori occupation of Pākaitore in 1995, said that is not the way it should be.

"What we need to understand is that it was the Crown, the Government that took it, at that particular time in 1863," he said.

"So when people put up rules and regulations and give reasons for not giving it back, let's not forget the real reason in regard to why we are in this position.

"In 1863, the Crown stole the lands, confiscated the lands, and they have to return it."