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The Ngāti Maniapoto/Ngāti Tama Cross-Claims Settlement Report (2001) is a report on two Ngāti Maniapoto claims (Wai 788 and Wai 800) about the proposed settlement of Ngāti Tama’s historical Treaty claims relating to Taranaki. An urgent hearing to consider these claims was held in Wellington from 26 to 28 February 2001 by a Tribunal consisting of Judge Carrie Wainwright (presiding), the Honourable Dr Michael Bassett, and Professor Wharehuia Milroy.

Wai 788 was lodged in July 1999 by Atiria Takiari and others, while Wai 800 was submitted by Harold Maniapoto and Roy Haar in November 1999. The two sets of claimants worked together, Wai 788 representing Ngāti Maniapoto hapu of the Mokau region and Wai 800 representing wider Ngāti Maniapoto interests. These claims were prompted by settlement negotiations between Ngāti Tama and the Crown, which in turn were a response to the Tribunal’s Taranaki Report. As a result of these negotiations, a heads of agreement for a proposed settlement of Ngāti Tama’s claims was signed in September 1999. This agreement proposed, among other things, to transfer various properties to Ngāti Tama and to provide other forms of recognition of Ngāti Tama’s interests in the north Taranaki–Mokau area.

The Ngāti Maniapoto claimants stated that they had interests in part of the area covered by the Ngāti Tama settlement, and that they would be prejudiced by the provision of redress to Ngāti Tama within that area before Ngāti Maniapoto’s claims had been heard by the Tribunal, or before Ngāti Maniapoto had entered into settlement negotiations with the Crown for its Treaty claims.

In evidence to the Tribunal, the Crown submitted details of revisions to the Ngāti Tama settlement which had been agreed to by Ngāti Tama and the Crown. The Tribunal considered that, by revising the settlement and by giving a number of undertakings intended to allay Ngāti Maniapoto’s concerns about the possible effects of this settlement on their interests, the Crown had conscientiously endeavoured to meet its obligations as a Treaty partner to both Ngāti Tama and Ngāti Maniapoto. The Tribunal noted:

There are serious precedent implications arising from the Wai 788 and Wai 800 claims. If the Tribunal were to take the view that the Crown ought not to deliver redress to any claimant where there are overlapping or cross-claims, the repercussions for the Crown’s settlement policy would be very serious. It would thwart the desire on the part of both the Crown and Māori claimants to achieve closure in respect of their historical Treaty grievances. Indefinite delay to the conclusion of Treaty settlements all around the country is an outcome that this Tribunal seeks to avoid.

The Tribunal made clear that Crown has a responsibility to ensure that negative inferences about Ngāti Maniapoto’s interests are not drawn from the Crown’s recognition of Ngāti Tama’s interests in the settlement. In the Tribunal’s view, the Crown had taken, or had promised to take, appropriate steps to meet this responsibility. The Tribunal was also convinced that, if the revised settlement with Ngāti Tama were to go ahead, the Crown would retain the capacity to provide adequate and appropriate redress to Ngāti Maniapoto when its settlement came to be negotiated.

For these reasons, the Tribunal found that the Crown would not breach Treaty principles by going ahead with the Ngāti Tama settlement on the basis of the revised settlement package. It also made a recommendation in relation to one particular site, Te Kawau Pā, which is on the coast south of Mokau. This site was originally to have been vested in Ngāti Tama as part of its settlement, but the Crown subsequently recognised that, because both Ngāti Tama and Ngāti Maniapoto had strong interests in the site, it would be inappropriate to vest title exclusively in either group. The Tribunal recommended that the status of Te Kawau Pā should remain unchanged for the time being, but that the Crown should take an active role in trying to find a way of recognising the interests of both parties:

We further recommend that the Crown facilitate hui involving Ngāti Maniapoto and Ngāti Tama to discuss the future management and ownership of Te Kawau Pā. If no agreement about the future ownership and management of this site results from such hui, we recommend that the matter be reconsidered when Ngāti Maniapoto negotiate their settlement with the Crown, at which time another attempt should be made to find a way of recognising the interests of both Ngāti Tama and Ngāti Maniapoto in the site, and of including both groups in its ownership and management.

In its Pakakohi and Tangahoe Settlement Claims Report, released in November 2000, the Waitangi Tribunal found that the Crown’s decision to accept the right of Ngāti Ruanui to settle historical claims in south Taranaki on behalf of Pakakohi and Tangahoe was ‘safe’.

The Tribunal found that the claimants, the Te Runanganui o Te Pakakohi Trust Incorporation and the Te Iwi o Tangahoe Incorporation, had not demonstrated a mandate to represent Pakakohi and Tangahoe in settlement negotiations. By contrast, the Tribunal found that there was insufficient evidence that the Crown’s decision to recognise the mandate of the Ngāti Ruanui negotiating body to represent these groups was ‘unsafe’.

The two claimants groups had alleged that the Crown’s decision not to negotiate separate settlements with them was in breach of the Treaty. However, the Tribunal found that the overwhelming majority of Tangahoe and Pakakohi people supported the proposed settlement.

The claims were heard in November 2000 by the Tribunal as a matter of urgency after the Crown and Ngāti Ruanui had signalled an intention to sign a $41 million settlement that month. The Tribunal had earlier that year attempted to resolve the matter by facilitating a mediation process between the parties, but that process had been unsuccessful.

In endorsing the Crown’s mandating decisions, the Tribunal nevertheless recommended that discussions between the parties continue in order to find ways to better express the importance of the Pakakohi and Tangahoe traditions to Ngāti Ruanui in the deed of settlement.Were those traditions not factored in, said the Tribunal, a real danger would exist that ‘the Pakakohi and Tangahoe identities would be written out of Taranaki history’. That, said the Tribunal, would create a fresh grievance out of the settlement of an old one.

Claim Wai 789, the Mokai Primary School claim, was brought by Mohi Osborne and Te Aroha Adams and concerned the closure of a sole-charge primary school at Mokai in October 1999.

The claimants alleged that, by closing Mokai Primary School, the Crown failed to protect the tino rangatiratanga and taonga of the hapu of Mokai, and so did not meet its Treaty responsibilities. The school, it was said, was a significant vehicle for the retention and transmission of 'local identity and autonomy - Mokaitanga'. Koti Te Hiko said:

I believe that if we are to retain the ahi ka of Mokaitanga then we need to educate our tamariki here in Mokai. Te ahi ka is within us when we are born but it must be nurtured within Mokai for it to survive. As the future kaumatua and kuia of Mokai the tamariki must walk alongside their parents and grandparents to learn the ways and responsibilities of the people. With the marae being so close there is a natural flow and interaction between what we sometimes call the triangle, this being the marae, the Mokai village and the school.

Mere Wall told the Tribunal that:

This isn't really just about education. This is about who we are. Our identity. This is about our whole being, our wairua, our tinana, our tikanga, our kawa … And it is time for us to stand up, as we are doing, and reclaim that … It comes from an inbuiltness to strive and to fight for who we are. You take away a man's identity, he has no face. You move these tamariki out of Mokai, they have no face. They are faceless out in the world. You keep them here, you give them solid roots and solid foundations, ae they go out to the world and they can face them with a face. So that when people ask them, ‘Ko wai koe?’ ‘Ae ko au,’ and [they] say who they are with pride and with dignity.

The Tribunal constituted to hear the claim was comprised of Joanne Morris (presiding), John Baird, Areta Koopu, and Rangitihi Tahuparae. Urgency was granted, and hearings were held in November 1999 and January 2000. The Tribunal presented its report to the Minister of Māori Affairs and the claimants on 31 March 2000:

Our analysis of the evidence and submissions presented in the claim leads to the conclusion that, despite the Crown's commitment to the goal of improving the education of Māori children, its closure of Mokai Primary School was not undertaken consistently with the principles of the Treaty of Waitangi. In brief, the "good governance" that is required of the Crown, and that is demonstrated by its attention to protecting taonga and enhancing tino rangatiratanga by reasonable means, was not evident in the chain of events that culminated in the school's closure.

The Tribunal recommended that the school be reopened with more intensive support from the Crown than was available in the past. It also recommended that the Crown clarify its policies and processes for intervening (by closure or other means) in the governance of schools in difficulty:

Although the claim concerned one small primary school that was serving a rural Māori community, we consider that the Treaty arguments and evidence submitted to us, and our analysis of them, raise larger questions about the responsiveness to Māori interests of contemporary Crown education policies.

the Governor will seize a part of the lands of the Tribes who conceal these murderers, and will use them for the purpose of maintaining peace in that part of the country and of providing for the widows and relatives of the murdered people.

New Zealand Gazette

The Ngati Awa Raupatu Report is an abbreviated report, containing no formal recommendations, that was written to support a settlement of claims arising from the Ngati Awa raupatu in the Bay of Plenty, when some 245,000 acres of land were confiscated. The report urges that all historical matters between the Crown and the Ngati Awa runanga and the runanga for Tuwharetoa ki Kawerau be settled.

The Tribunal that heard the claims comprised Chief Judge Eddie T Durie (presiding), Brian Corban, Professor Gordon Orr, Professor Keith Sorrenson, and Keita Walker. There were 12 separate hearings, which spanned almost a year and a half during the course of 1994 and 1995.

The Tribunal found that the confiscation of the Ngati Awa land was contrary to the principles of the Treaty, in that the Treaty did not allow of it and the circumstances did not justify the suspension of the Treaty rights amongst the Ngati Awa people. It emphasised that the land was confiscated not for the murder of a Crown official, as is popularly thought, but for the rebellion arising from alleged resistance when an armed force attempted to effect arrests. However, the Tribunal considered that the resistance was intended not as rebellion, or as opposition to the Government, but to defend against that which appeared to be an invading force, bent on revenge.

In addition, the Tribunal found that far more land was taken than the legislation allowed for, that it was taken from 'innocent' hapu with no involvement in the matters complained of, that a major relocation was involved to place all hapu within ready reach of a military establishment, that the hapu were left with insufficient for their needs, and that social structures were destabilised when all hapu land was locked into a fragmented, personal tenure.

I have seen many of our people today fail to observe even the most simple protocols and customs. I have seen some of our people [trample] over the tikanga that is special to us and has been laid down by our ancestors before us. I have seen our people on some occasions deny that they are Ngati Awa.

Kairau Ngahau

I vividly recall how my mother was always telling me how my grandfather, Merito Hetaraka, felt the shame and worthlessness, as he could not fulfil his duties as a Ngati Hokopu leader to ensure the future well-being of his hapu and iwi, as a result of the loss of the 'control' of our confiscated lands.

Patrick Hudson

The report ends with the Tribunal outlining its views on the issues involved in negotiating a settlement and wishing the Crown and claimants a successful resolution to 'this long outstanding problem'.

In settling the claims, regard should be had to the immediate and long-term social impacts on the Ngati Awa people in taking away their proven developmental capacity. It is also pertinent to compare their lot with that of other major descent groups or iwi. In the twentieth century, tribes that retained land would have the benefit of concessionary land development funding. Many that lost large areas of land would have the benefit of preliminary compensation administered through tribal trust boards. Comparatively, assistance for Ngati Awa has been minimal. They had little land to develop and are amongst the few that received no prior compensation.

The Waitangi Tribunal

The Waitangi Tribunal has consistently acknowledged a Maori right of development of resources as a Treaty right resulting from article 2 … The right cannot be fossilised as at 1840 and limited only to resources known or used back then.

—Claimant counsel

Claim Wai 776 was received on 9 March 1999 and registered the next day. It was lodged by Rangiaho Everton and concerned a part of the electromagnetic spectrum known as the radio spectrum, which can be used for telecommunications and information technology in general (for example, the internet, cellular phones, video links, and video conferencing can all make use of it).

At that time, the Crown was preparing to auction the rights to manage the radio spectrum in the two gigahertz range. These rights were to last for 20 years and would give the successful bidders the right to issue licences to generate signals. The auction was planned to start on 29 March 1999:

It was the Crown's attempts to sell licences to operate portions of the spectrum into private ownership that had provoked Maori claims to the Waitangi Tribunal. Maori were concerned with the Crown's ‘commercial approach’, which would see the alienation of the resource to powerful corporations.

On 15 March 1999, the claim was the subject of an urgency conference presided over by Judge Hingston. An urgent hearing of the claim followed, at which the claimant sought an urgent interim recommendation that the impending auction be postponed until a negotiated agreement with Maori on the issues had been reached. Claimant counsel noted:

In the context of the radio spectrum, the evidence has illustrated that Maori had traditional knowledge of and used parts of the electromagnetic spectrum. The development of part of that resource through technology able to channel radio waves into intelligible signals is a development to which Maori have a right.

The Tribunal of Judge Patrick Savage (presiding), Josephine Anderson, and Professor Keith Sorrenson made an interim majority finding that prima facie the claim was well founded. The Tribunal recommended that the auction be suspended and that negotiations be commenced with Maori, with a view to reserving for them a fair and equitable portion of the management rights.

The Crown decided to delay the proposed auction for three months to allow time for a substantive hearing to take place and for the Tribunal to report to the Government. That hearing was held between 30 April and 12 May, and the report was presented to the Minister of Maori Affairs and the claimants on 29 June 1999.

The Tribunal was again divided on its findings but, by different paths, reached the conclusion that there was a breach of the principles of the Treaty of Waitangi and that the claimant would be prejudiced if the Crown were to proceed with the auction without first reserving for Maori a fair and equitable portion of the frequencies. The Tribunal also found that the Radiocommunications Act 1989 was in breach of the principles of the Treaty of Waitangi. In reaching its findings, the Tribunal cited the Report on the Te Reo Maori Claim and the Treaty principles of partnership, rangatiratanga, fiduciary duty, mutual benefit, and development.

The Tribunal recommended that the Crown suspend the auction of the two gigahertz range of frequencies until it had negotiated with Maori to reserve a just share of the spectrum for them:

In our view, such an arrangement is preferable to some form of compensation by the Crown in lieu of spectrum frequencies. Maori must have hands-on ownership and management if they are to foot it in the ‘knowledge economy’, as we believe they must in the coming millennium.

Because this is in effect a national Maori claim, we recommend that the Crown and Maori consider establishing a Maori trust, somewhat along the lines of the Crown Forestry Rental Trust … Any income that a Maori spectrum trust received - say, from the development or lease of frequencies - could be used to develop infrastructure for remaining Maori frequencies or to educate and train Maori staff for employment in that infrastructure or elsewhere in the telecommunications industry.

Rarely has a Māori river claim been so persistently maintained as that of the Whanganui people. Uniquely in the annals of Māori settlement, the country’s longest navigable river is home to just one iwi, the Atihau-a-Paparangi. It has been described as the aortic artery, the central bloodline of that one heart.

The Atihau-a-Paparangi claim to the authority of the river has continued unabated from when it was first put into question. The tribal concern is evidenced by numerous petitions to Parliament from 1887. In addition, legal proceedings were commenced as early as 1938, in the Māori Land Court, on an application for the investigation of the title to the riverbed. From there the action passed to the Māori Appellate Court in 1944, the Māori Land Court again in 1945, the Supreme Court in 1949, to a further petition and the appointment of a Royal Commission in 1950, to a reference to the Court of Appeal in 1953, to a reference to the Māori Appellate Court in 1958 and to a decision of the Court of Appeal in 1962. This may represent one of the longest set of legal proceedings in Māori claims history, yet in all those proceedings, it is claimed, the principles of the Treaty of Waitangi had no direct bearing. Nor did the matter rest there for the court hearings were followed by further petitions and investigations, and in more recent times, Atihau-a-Paparangi were again involved in the Catchment Board inquiry on minimum river flows in 1988 and in the Planning Tribunal and High Court hearings on the same matter in 1989, 1990 and 1992.

   'A wananga is characterised by teaching and research that maintains, advances and disseminates knowledge and develops intellectual independence, and assists the application of knowledge regarding ahuatanga Maori (Maori tradition) according to tikanga Maori (Maori custom).'
    Section 162(4)(b)(iv) of the Education Act 1989

The Wananga Capital Establishment Report relates to a claim by three wananga Maori established as tertiary education institutions under the Education Act 1989. The claim concerned the failure of the Crown to recognise the right of Maori, in terms of the Treaty of Waitangi, to receive capital funding, in order to provide properly for the education of Maori through programmes, and in an environment, designed to enhance their tertiary educational opportunities.

‘As Maori studies is located within a western university, it is subject to the western paradigm of knowledge which has severely hindered its growth. Such a circumstance is not tolerated for western science nor should it be tolerated for matauranga Maori.’
Charles Royal

‘The rapid increase in Maori participation in tertiary education requires a variety of strategies. That there is not only one strategy to be followed, nor only one type of provider to be involved. However, the three wananga are important elements in any strategy. They are different from other providers and different from each other. This diversity is to be welcomed. All three wananga need agreed programmes for rapid development.’
Dr Norman Kingsbury

The claim was filed with the Waitangi Tribunal on 11 May 1998 and registered as Wai 718 on 19 May 1998. It was brought by Rongo Herehere Wetere on behalf of Te Tauihu o nga Wananga Association, which represented the three wananga concerned: Te Wananga o Aotearoa, Te Wananga o Raukawa, and Te Whare Wananga o Awanuiarangi. The claimants alleged that the Crown had failed to fund wananga equitably when compared to other tertiary education institutions, such as universities, polytechnics, and colleges of education. Urgency was sought for the hearing of the claim because two of the wananga were at serious risk of financial collapse, owing to a lack of capital funding.

On 30 June 1998, Judge Richard Kearney granted the claim urgency, and a Tribunal consisting of Judge Kearney, Josephine Anderson, and Keita Walker heard the claim in October, November, and December of that year. The report was presented to the Minister of Maori Affairs and the claimants on 28 April 1999.

The Tribunal found that the Crown's tertiary education policies had served to disadvantage wananga and place their operations at risk, and it recommended that the Crown make a one-off payment to each of the wananga sufficient to:

    * compensate them for moneys invested in their land, buildings, plant, and equipment;
    *  cover the cost of bringing the establishments up to a standard comparable to other tertiary education institutions;
    * and meet the proper costs and disbursements of the claimants incurred in the preparation and presentation of their claims.

    'Read as a whole, the Treaty of Waitangi created a partnership between the Crown and Maori. This partnership was a compact between two distinct peoples with their own culture, language, values, treasures, forms of property, and so forth. The Crown now acknowledges the concept that New Zealand is a bicultural polity and society. Biculturalism is an integral part of the overall Treaty partnership. It involves both cultures existing side by side in New Zealand, each enriching and informing the other. Under this overarching Treaty principle, therefore, the Crown's obligation to foster and support wananga is a clear and powerful one.

    'Rangatiratanga involves, at the very least, a concept of Maori self-management. … The wananga that have been recognised as tertiary education institutions have all developed out of the efforts of Maori iwi groups to provide tertiary education to, in the first instance, their own people; in the second instance, Maori students; and, in the third instance, anyone who wishes to embrace this particular form of education. As such, the efforts of these tribal groups to create and sustain tertiary education institutions are a vital exercise of rangatiratanga. The establishment of wananga as tertiary education institutions recognised by the State represents an attempt to engage actively with the Crown in the exercise of rangatiratanga in the management of new forms of tribal and Maori education. The Crown's Treaty obligation is to foster, support, and assist these efforts. In doing so, the Crown needs to ensure that wananga are able to remain accountable to, and involved in, the communities that created them.

    'In assuming the right to govern, the Crown took upon itself the duty actively to protect Maori interests. It is clear that te reo and matauranga Maori are taonga. It is also clear that the three wananga are playing an important role in studying, transmitting, and preserving these taonga. To meet its Treaty obligation to protect these taonga, the Crown should provide wananga with adequate support and resources in an appropriate manner.'
    The Waitangi Tribunal

'The Waitangi Tribunal has consistently acknowledged a Maori right of development of resources as a Treaty right resulting from article 2 … The right cannot be fossilised as at 1840 and limited only to resources known or used back then.'
    Claimant Counsel

Claim Wai 776 was received on 9 March 1999 and registered the next day. It was lodged by Rangiaho Everton and concerned a part of the electromagnetic spectrum known as the radio spectrum, which can be used for telecommunications and information technology in general (for example, the internet, cellular phones, video links, and video conferencing can all make use of it).

At that time, the Crown was preparing to auction the rights to manage the radio spectrum in the two gigahertz range. These rights were to last for 20 years and would give the successful bidders the right to issue licences to generate signals. The auction was planned to start on 29 March 1999.

    'It was the Crown's attempts to sell licences to operate portions of the spectrum into private ownership that had provoked Maori claims to the Waitangi Tribunal. Maori were concerned with the Crown's "commercial approach", which would see the alienation of the resource to powerful corporations.'
    Piripi Walker

On 15 March 1999, the claim was the subject of an urgency conference presided over by Judge Hingston. An urgent hearing of the claim followed, at which the claimant sought an urgent interim recommendation that the impending auction be postponed until a negotiated agreement with Maori on the issues had been reached.

    'In the context of the radio spectrum, the evidence has illustrated that Maori had traditional knowledge of and used parts of the electromagnetic spectrum. The development of part of that resource through technology able to channel radio waves into intelligible signals is a development to which Maori have a right.'
    Claimant counsel

The Tribunal of Judge Patrick Savage (presiding), Josephine Anderson, and Professor Keith Sorrenson made an interim majority finding that prima facie the claim was well founded. The Tribunal recommended that the auction be suspended and that negotiations be commenced with Maori, with a view to reserving for them a fair and equitable portion of the management rights.

The Crown decided to delay the proposed auction for three months to allow time for a substantive hearing to take place and for the Tribunal to report to the Government. That hearing was held between 30 April and 12 May, and the report was presented to the Minister of Maori Affairs and the claimants on 29 June 1999.

The Tribunal was again divided on its findings but, by different paths, reached the conclusion that there was a breach of the principles of the Treaty of Waitangi and that the claimant would be prejudiced if the Crown were to proceed with the auction without first reserving for Maori a fair and equitable portion of the frequencies. The Tribunal also found that the Radiocommunications Act 1989 was in breach of the principles of the Treaty of Waitangi. In reaching its findings, the Tribunal cited the Report on the Te Reo Maori Claim and the Treaty principles of partnership, rangatiratanga, fiduciary duty, mutual benefit, and development.

The Tribunal recommended that the Crown suspend the auction of the two gigahertz range of frequencies until it had negotiated with Maori to reserve a just share of the spectrum for them:

    'In our view, such an arrangement is preferable to some form of compensation by the Crown in lieu of spectrum frequencies. Maori must have hands-on ownership and management if they are to foot it in the "knowledge economy", as we believe they must in the coming millennium.

    'Because this is in effect a national Maori claim, we recommend that the Crown and Maori consider establishing a Maori trust, somewhat along the lines of the Crown Forestry Rental Trust … Any income that a Maori spectrum trust received - say, from the development or lease of frequencies - could be used to develop infrastructure for remaining Maori frequencies or to educate and train Maori staff for employment in that infrastructure or elsewhere in the telecommunications industry.'

The water from the puna wai [water of the spring] of a whanau is considered a taonga to that whanau as it carries the Mauri [life force] of that particular whanau. Of course all the waters of the puna wai find their way into the river and thereby join with the Mauri of the river. In essence then the very spiritual being of every whanau is party of the river … In this sense the river is more than a taonga; it is the people themselves.

Wiremu McAuley

Claim Wai 212 concerned the mana and tino rangatiratanga of the hapu of Te Ika Whenua over the Rangitaiki, Wheao, and Whirinaki Rivers and their tributaries. It built on the Te Ika Whenua energy assets claim and, like that claim, was severed from Te Ika Whenua’s original claim and accorded urgency by the Tribunal.

The claim was brought in the name of Hohepa Waiti and Kini Porima, as the chairman and secretary of Te Runanganui o Te Ika Whenua Incorporated Society, on behalf of themselves and the hapu represented by Te Ika Whenua.

The Tribunal constituted to hear the Te Ika Whenua rivers claim comprised Judge Glendyn Carter, Bishop Manuhuia Bennett, Mary Boyd, and Georgina Te Heuheu, though Ms Te Heuheu resigned from the Tribunal following her appointment as a list candidate for the National Party in September 1996. The first hearing was held at Tipapa Marae in Murupara in early November 1993, the second hearing at the Maori Land Court in Rotorua in late August 1994, and the third and final hearing at Painoaiho Marae in Murupara in mid-October 1994.

The Tribunal heard how the rivers served as a vitally important food source and means of transport and communication, and how they were essential for Te Ika Whenua’s spiritual and cultural well-being. Claimant evidence ‘clearly established’ that the middle reaches of the Rangitaiki and the Whirinaki and Wheao Rivers were a taonga over which the hapu of Te Ika Whenua had mana and rangatiratanga.

The Tribunal also heard of the effect that hydro schemes had had on the resident eel population and the flow of the rivers.

Maori anger is mounting over development on the Rangitaiki River that has seriously depleted eel populations in the Murupara District … Below the Te Mahoe dam, eel populations are building up. But in the quiet Ikawhenua Range country, the river’s birth place, Maoris are concerned that one of their traditional foods is disappearing.

Moves to press the Internal Affairs Department into building a run-off or race for eels so they might ‘climb’ over the dam have been turned-down because of high costs.

The Rotorua Daily Post

one of the greatest tragedies of the diversion of the Rangitaiki and the Wheao ‘blowout’ was that all the beautiful little pools of clear water that made the Wheao one of the greatest trout fishing rivers in the world, as well as a great place for tuna, were wiped out. The Wheao they had known, the lands on which they had lived for weeks and what used to be a great place for mahinga kai were all gone.

The Waitangi Tribunal

Like the Mohaka River Tribunal before it, the Ika Whenua rivers Tribunal considered the application of the common law rule ad medium filum aquae, which assumes that the owner of land bordering a non-navigable river owns the adjacent riverbed to the middle line. According to the Tribunal, this rule conflicted with the Maori view of ownership, and in the Tribunal’s view, it was ‘inescapable’ that the application of this rule was a major factor in Te Ika Whenua’s loss of title and tino rangatiratanga over their rivers.

Clearly, the customary and Treaty rights of rangatira and hapu and tangata katoa (all the people) of Te Ika Whenua are part of their tino rangatiratanga and are in conflict with Crown assertions on the ownership of rivers by virtue of statute or common law. Claimant evidence shows that rivers were and still are a taonga that provides material and spiritual sustenance and a strong continuing bond. The people belong to the river and the river belongs to the people.

The Waitangi Tribunal

In its report, released in September 1998, The Tribunal found that Te Ika Whenua held a proprietary interest akin to ownership of the rivers as at 1840 in that they had full and unrestricted use and control of the waters thereof while they were in their rohe. That right or interest was property guaranteed protection under article 2 of the Treaty and Te Ika Whenua were entitled to have had conferred on them in 1840 a proprietary interest in the rivers that could be practically encapsulated within the legal notion of the ownership of the waters.

The Tribunal also made a number of recommendations to the Crown relating to the recognition of Te Ika Whenua’s residual rights in the rivers, the management and control of the rivers, the vesting of certain parts of the riverbeds in the claimants, and the compensation owed to them for the loss of title resulting from the application of the ad medium filum aquae rule.

In January 1990, the Waitangi Tribunal registered claim Wai 84, concerning the construction of the Turangi township. The town, which was built in the 1960s to house several thousand construction workers and related service people employed on the Tongariro power development scheme, was situated on ancestral land of the Ngāti Turangitukua hapū of Ngāti Tūwharetoa. The claim was made by Mahlon Nepia on behalf of himself and Arthur Grace of Ngāti Turangitukua and sought the return of certain properties in the township.

The Tribunal constituted to hear the claim comprised Professor Gordon Orr (presiding), Sir Hugh Kawharu, Professor Evelyn Stokes, and Hepora Young. In August 1993, the Tribunal granted urgency to the claim on the ground that the Crown was selling land within the claim area over the objections of claimants and that sacred sites were involved. The claim was heard in April, September, and October of 1994.

The Tribunal heard evidence from both Crown and claimants on the process by which the hapū were alienated from much of their land in the period between 1964 and 1983; the assurances and undertakings made to Ngāti Tūwharetoa by Crown officials which persuaded the owners to agree in principle with the proposal to build the town within their rohe; and the Crown's alleged failure to honour many of these promises.

As well, many people recounted their personal experiences. Bill Asher spoke of what had been taken from Ngāti Turangitukua:

We certainly have gained much in the way of facilities. But we have lost much too. When I was young, I didn't think about the implications of the coming of the township to our wahi tapu. We younger people regarded those as the responsibility of our kaumatua. We left all that to them. But once the project got underway, the role of those kaumatua diminished, and they weren't consulted about the effect of the works on the wahi tapu. As a result, many of those places have passed from us, and we are emotionally, spiritually, and culturally poorer as a result.

Tuatea Smallman summed up the effects of the hydro development on his family:

By severing the lands from the Maori title, the Ministry of Works has alienated the owners, our grandmother and her children, from the land. Younger members of the whanau have been denied their land. Loss of land to us means a loss of dignity, pride, and a distancing of whanau members through alienation to a feeling of mokaitanga [dependency, like being slaves]. We have lost our values, and our esteem, and a rift between families has developed. We fear our children will leave their turangawaewae.

The Tribunal heard much moving evidence about the effect of the township's construction upon the small rural community:

The desecration of our precious wahi tapu caused our people, and particularly our old people, great distress. In all the confusion and enormous changes that were happening in Turangi, we often didn't find out until too late that more was being done in sacred areas. And the Ministry of Works didn't want us to find out. …
Those places are like important signposts to our history and mana. Many of the signposts have disappeared without trace. Other signposts are so changed as to be unreadable. We will never have the same access to our past as a result. …
When the Ministry of Works came to our area, we had kaumatua here who had great authority and many responsibilities. After the Ministry of Works took over, these people were reduced in status almost overnight because they no longer had any authority over what happened in our rohe. There was nothing they could say or do which would make the government people listen. This was very hard for those old people to accept and it affected them very badly.
—Arthur Grace

I was told by Arthur Grace that my grandfather was still in the house when they came to bulldoze it down. I don't know why they had to bulldoze that house. It was only 21 years old. My grandfather was watching what was happening, standing there on the road with my little sister Josephine, another whangai who lived with my grandfather. He was crying and his suitcase was there beside him. Arthur went and spoke to the men with the bulldozer but they didn't listen and they drove a bulldozer into the back of the house right in front of my grandfather. They didn't even wait until he had left before knocking the house down. So Arthur picked up Josephine and my grandfather and took them away in the truck. All our turkeys and pigs and dogs and cats were let loose running around. We had about 30 turkeys then. They were all just left to run away. My grandfather was taken to the [Ngāti Hine] marae to live, because there was nowhere else for him to go. He was moved from family to family, but he used to lock himself up in his room all the time. It was only a few months later that he died.
—Taima Bell

At about the same time, one of our whanaunga [relatives] Mr Tewe Eru, who was also an old man, refused to leave the house that Ministry of Works wanted to take from him. The house was bulldozed before his eyes, and all his belongings were left on the road. All of the local people knew this and it terrified my mother. She thought that she would be the next one, that her house would be bulldozed and she would be left with nowhere to go.
It was at this stage that my mother took to her bed. …
My mother was not an old woman. She was only 62, and a woman of vitality. She had asthma, but she was not an invalid. It was the Ministry of Works that killed her. I hated the Ministry of Works for what they did to my mother. They seemed to have no feeling at all for how their actions were affecting the lives of our people.
—Dulcie Gardiner

The way the Ministry of Works went about doing what they did caused great agony to people and affected their lives very deeply. The damage to our old people's happiness and health can never be compensated for. What makes me particularly resentful is that I don't believe that there was any necessity for the Ministry of Works to take that land from the backs of people's houses, and the road taking and survey could have been located elsewhere to the many acres where no one lived. Another anomaly is that the rest of that area … was never used for the development of the township; it was just sold off.
—Hono Lord

The report was presented to the Minister of Maori Affairs and the claimants in September 1995. In it, the Tribunal found that, in regards to Turangi, the Treaty of Waitangi 'was all but ignored by the Crown in its dealings with Maori'. And, further, that, in fulfilling its wish to construct the Turangi township on the claimants' ancestral land, the Crown had the unqualified backing of 'draconian statutory powers' (ie, the Public Works Act 1928 and the Turangi Township Act 1964) to take the land:

These Acts gave the Crown the power to take the claimants' land compulsorily for the establishment of a permanent Turangi township. This could be done without any notice to the owners or any right of objection by them; without any obligation to consult the owners; without the owners' consent; without any obligation to return land not required for the purpose for which it was taken; at a price negotiated with a statutory official on behalf of multiple owners rather than with the owners themselves; and on conditions laid down by legislation and not freely negotiated. The Crown could insist on taking the freehold of the land, irrespective of the preference of the owners. In addition, the Crown asserted the right, which was of dubious legality, to enter the claimants' lands with its bulldozers, without notice to or the consent of the owners, well before any proclamation taking the land had been gazetted. Against these powers, the Maori owners had no defence. It is not possible to reconcile these far-reaching powers with the Crown's Treaty obligation actively to protect the rangatiratanga of Maori in and over their land.

The Tribunal recorded 13 breaches of Treaty principles by the Crown, most of which stemmed from the Crown's failure to actively protect the rangatiratanga of Ngāti Turangitukua over their ancestral land. The Tribunal wrote that:

At the heart of the claim lay the failure of the Crown to honour many of the undertakings and assurances it gave to the owners, which formed the basis of the approval in principle they gave to the construction of a township on their land. This failure effectively vitiated such approval.

As a result, the Crown took up to double the amount of land that it had undertaken to take and valuable industrial land was not returned after 10 to 12 years as promised. Compensation was inadequate; the economic base of the people was seriously eroded; irreplaceable wahi tapu have been destroyed or desecrated; waterways and fisheries are degraded and flooding has occurred; and the lack of adequate consultation with the tangata whenua and the failure to respect the mana of the people throughout the whole distressing experience has increased their level of alienation.

The Tribunal found that the claimants had been prejudicially affected by the provisions of the Public Works Act 1928 and the Turangi Township Act 1964, in that both Acts were fundamentally inconsistent with the basic guarantee given in article 2 of the Treaty of Waitangi that Maori could keep their land until such time as they wished to sell it at a price agreed with the Crown.

The Tribunal recommended that amendments be made to the sections of the Public Works Act 1981 dealing with the taking of Maori land by the Crown or a local authority and the offering back of surplus land, and it recommended that the Act should be amended so as to give effect to the principles of the Treaty of Waitangi.

In the interest of facilitating an early settlement of remedies, the Tribunal proposed that the claimants and Crown enter into direct negotiations but noted that, if the parties were unable to reach an agreement, the Tribunal would be amenable to hear the parties on the question of remedies and to make appropriate recommendations.

Ngāti Turangitukua and the Crown did enter into negotiations, which took place during 1995 and 1996, but by July 1996, they had come to a standstill. The claimants then returned to the Tribunal to ask for a hearing on remedies.

After hearing evidence and submissions from the claimants and Crown in February and July 1997, the Tribunal retired to consider the issue of remedies. The following year, in July, the Tribunal released the Turangi Township Remedies Report, in which, for the first time, the Tribunal exercised its power to make binding recommendations. These recommendations were that memorialised and Crown-owned non-memorialised land to the value of $6.1 million be returned to Ngāti Turangitukua by the Crown. The Tribunal further recommended that the Crown pay Ngāti Turangitukua monetary compensation of at least $1million and that it meet the costs incurred by the hapū in pursuing the claim.

The Crown and claimants had 90 days to reach an agreement before the binding recommendations became final. This, they did, and the Crown and Ngāti Turangitukua signed a deed of settlement at Turangi in September 1998. The deed, which contained a mix of fiscal and non-fiscal redress and a clear acknowledgement of the Crown's Treaty breaches, would 'help restore Ngāti Turangitukua's mana and rangatiratanga' said the Minister in Charge of Treaty of Waitangi Negotiations, the Honourable Doug Graham. The compensation package was valued at $5 million.