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The Waitangi Tribunal released The Waimumu Trust (SILNA) Report on 9 May 2005. The claimants are the beneficiaries of the Waimumu Trust, which administers an area of 4440 hectares of indigenous forested land in central Southland, granted to their ancestors under the South Island Landless Natives Act 1906 (SILNA). The claim is about the Forest Amendment Act 2004, which removed their right to export unsustainably logged timber without compensation. This Act arose from the Crown’s indigenous forests and SILNA policies, which the claimants alleged are in breach of the principles of the Treaty of Waitangi. They argued that the removal of the power to export (without compensation) would lead to a loss of some $25 million in potential earnings. The claim was heard urgently at Christchurch in October 2004, with closing submissions in Wellington in November of that year.

The main focus of the urgent inquiry was, in the first instance, the claim that the Forests Amendment Act 2004 had removed the power of the claimants to export unsustainably logged timber, without compensation. The claimants argued that sustainable logging was uneconomic and would in any case only yield them $1.66 million. Unsustainable logging over five years would have earned $25.25 million (a difference of $23.59 million). The Tribunal does not consider this part of the claim to be well founded. The valuations were unsatisfactory, and there does not appear to be an export market for the Waimumu Trust’s timber in any case. There has been no breach of the principles of the Treaty, and no prejudice to the claimants, arising from this part of the Forests Amendment Act 2004.

In terms of the domestic market, claimants and the Crown were in broad agreement that the Resource Management Act 1991 (RMA) has placed strong constraints on the owners’ ability to carry out unsustainable logging. In 2001, the Environment Court accepted the Crown’s contention that the SILNA grants were not in a special category and requiring special treatment. Previously, the Crown considered the SILNA lands to be a special case because they were reserves granted by the Crown in 1906, as partial remedy for its failure to keep its nineteenth-century promises to Ngai Tahu. The Southland District Council also thought at first that the SILNA lands might require special treatment, but this idea had lapsed by the time the Southland District Plan was promulgated. As a result, the RMA is a key constraint on the claimants’ ability to make an economic use of their SILNA lands.

The Forests Amendment Act arose from the Crown’s SILNA and indigenous forest policies, as developed from 1990 to the present day. Parliament’s intention in 1906 was to provide at least a partial remedy for the Crown’s failure to set aside any or adequate reserves for Ngai Tahu in the nineteenth century. The Ngai Tahu Tribunal found that this was not in fact an adequate remedy, and the Crown has settled historical claims relating to these grievances in its Ngai Tahu Claims Settlement Act 1998. None the less, the Crown began negotiations with SILNA owners in the 1990s on the basis that their lands were a special case; a compensatory award, the intent of which would be defeated by its new indigenous forests policy. The Crown’s change of heart on this point, which the Tribunal thinks influenced both the Environment Court and the District Council, was probably inconsistent with both the historical facts and the principles of the Treaty. The Tribunal reached a preliminary view only on this matter, on the basis of the evidence available to it, as it could not conduct a full hearing of the SILNA claims. The Tribunal is satisfied that its preliminary view is sound and will assist claimants and the Crown.

In 2000, the Minister of Forests proposed to compensate all SILNA owners equally and to ensure that such a policy was consistent with the Treaty. His proposal was rejected, partly on the grounds that the historical evidence showed the SILNA awards to be of a different nature than previously thought in the 1990s. Such historical evidence was then subsequently and hastily commissioned. The Tribunal’s preliminary view is that this policy change was probably in breach of Treaty principles.

In terms of the specific Waimumu Trust claim, the Tribunal found that the Crown’s actions in the 1990s created a legitimate expectation that they would receive compensation as a result of a negotiated settlement. This expectation was created by the Framework Agreement for negotiations, and then strengthened by moratorium payments and the settlements of the Waitutu and Rakiura SILNA forest claims. The latter were settled because they have a high conservation value, and the settlements were calculated on the basis of commercial timber values. The Tribunal found that the Crown abandoned negotiations for compensation without the concurrence of the Waimumu Trust. Instead, it imposed conservation orders under the Nature Heritage Fund (NHF) as the only effective alternative remedy. The NHF payments are calculated on a much lower value than the commercial value of the timber, unlike the Waitutu and Raikura settlements. The Tribunal concluded that the Crown’s change of policy has been unfair to the Waimumu Trust and has breached the principles of the Treaty of Waitangi.

Despite this Treaty breach, the claimants have not yet suffered any prejudice. The option of applying to the NHF is still open to them. The Tribunal suggests that the Crown take advantage of this opportunity to review the basis of the NHF payments and ensure a fair outcome for the Waimumu Trust.

At the end of March 2004, the Minister in Charge of Treaty of Waitangi Negotiations and the Minister of Māori Affairs recognised the deed of mandate of the executive council of Nga Kaihautu o Te Arawa to negotiate the settlement of all of Te Arawa’s historical claims. Following that decision, claims concerning the planned settlement negotiations and the recognition of the mandate were filed with the Waitangi Tribunal and the claims were granted urgency. Judge Caren Wickliffe, John Baird, and Gloria Herbert were appointed to hear the claims (with Judge Wickliffe presiding), and a hearing was held in Rotorua in late June 2004. The Te Arawa Mandate Report was released in September 2004.

The report found that the Crown failed to carry out a sufficiently active role in monitoring and scrutinising the Te Arawa mandating process, or in assessing the executive council’s deed of mandate. The Tribunal concluded that issues of representivity and accountability with respect to the executive council had not been thoroughly or fully resolved.

However, the Tribunal stopped short of upholding the claims per se or finding that the Crown acted in breach of the Treaty causing prejudice, since an opportunity remained for matters to be put to right. The Crown had also indicated that it wanted to review the process by which the executive council’s mandate was achieved.

The Tribunal thus suggested that a hui be held of Te Arawa iwi and hapu representatives (elected members of the kaihautu) to debate and vote on issues such as the number of groups to be represented on the executive council, the proportionality of seats across the iwi and hapu, and the question of the degree of accountability of the executive council to the kaihautu.

The Tribunal stated that not only would the Crown be in breach of the Treaty if it made an inadequate response to the Tribunal’s suggested course of action but it would also risk promoting entrenched division within Te Arawa between the executive council and its opponents. Leave was granted to the claimants to return to the Tribunal if the Crown’s response was in fact inadequate.

The Tribunal also made some specific comments about particular iwi and hapu, such as finding that, many years after undertaking to do so, the Crown was both legally and morally obligated to enter into separate negotiations with Ngati Makino. The Tribunal found that this should occur at the same time as the negotiations with the rest of Te Arawa, and that, if Ngati Makino agreed, Waitaha should be invited to join these negotiations.

Finally, the Tribunal noted that claims such as those concerning the Te Arawa mandate would continue to be heard by the Tribunal from time to time. It thus provided some suggested best-practice guidelines which could be used by the Crown and Māori should they wish to develop a Treaty-compliant process for the recognition of mandates to negotiate settlements.

In the months following the release of the Te Arawa Mandate Report in August 2004, several requests for a resumption of the inquiry were made by claimants, on the grounds that the Crown had failed to make an adequate response to the Tribunal's suggestions.

In December 2004, the Tribunal agreed to resume the inquiry. A one day hearing was held on 12 January 2005. The Tribunal reported on the January 2005 hearing in the Te Arawa Mandate Report: Te Wahanga Tuarua, released in March 2005.

The Waitangi Tribunal’s report on Treaty claims around the Turanga (Gisborne) area was formally handed to claimants at Whakato Marae on 30 October 2004.

The Tribunal has ruled that the Crown repeatedly disregarded its own laws in its treatment of Maori from the Turanga area in the nineteenth century. In particular, it found that the execution of unarmed prisoners at Ngatapa Pa in 1868 was one of the worst abuses of law and human rights in New Zealand’s colonial history.

Significantly, it ruled that Maori also breached the Treaty during this period and that there was no justification for the murder of Pakeha settlers and other Maori in the Turanga area by Te Kooti and his followers.

This was the first report to be released under the Tribunal’s ‘new approach’, which heralded a faster approach to the hearing of, and reporting on, historical claims. This approach produced a report in four and a half years – from the first judicial conference held with claimant groups, their lawyers, and the Crown to discuss how the new approach would work practically in Gisborne, through to hearings, and then the writing, editing, and release of the report . This is roughly half the time it has taken in comparable districts using the standard inquiry process. The Tribunal says the two-volume report is the result of an unprecedented degree of cooperation both among the various claimant groups, and between claimants and the Crown.

In Turanga Tangata Turanga Whenua, the Tribunal found that the Crown breached the principles of the Treaty of Waitangi by: attacking a defensive pa at Waerenga a Hika in November 1865; deporting and detaining 123 prisoners on Wharekauri (the Chatham Islands) without charge or trial; executing between 86 and 128 unarmed prisoners at Ngatapa Pa in 1868, again without charge or trial; extracting the cession of 1.195 million acres under duress; and by confiscating, without legal authority, the property rights of hundreds of Turanga Maori ‘alleged’ to be rebels.

Significantly, the Tribunal also found that Te Kooti and his followers breached their own responsibilities as citizens and Treaty partners, when they murdered between 50 and 70 Maori and Pakeha at the settlements of Matawhero, Oweta and Patutahi. Even though the Whakarau (as Te Kooti’s followers were called) were greatly provoked by Crown action, the Tribunal found that ‘the Treaty of Waitangi continued to speak for reasonableness, moderation and an ethical response’.

The report details significant moments from Gisborne’s past. Turanga, as it was then called, was a fully autonomous district until 1865. That autonomy was broken when the Crown laid siege to the defensive pa at Waerenga a Hika, killing 71 defenders in the process. The Tribunal found that the Crown may only turn its guns on its own citizens if they are in rebellion. This, it said, was not the case in Turanga.

Following the surrender of the pa, the Crown imprisoned 113 men and transported them to the Wharekauri (the Chatham Islands). The Tribunal found that since the prisoners never faced charges, and were never convicted of any offence, their imprisonment was unlawful and in breach of the Treaty.

Te Kooti and nearly 300 men, women, and children escaped from Wharekauri. The Whakarau landed at Whareongaonga, south of the Bay of Plenty. Colonial forces tried to re-arrest them, and failed. Te Kooti sought safe passage from Tuhoe and sanctuary from King Tawhiao. When denied both, he attacked the Turanga settlements of Patutahi, Matawhero, and Oweta. Between 50 and 70 Pakeha and Maori were killed by the attackers. The Whakarau retreated to Ngatapa Pa in the interior, where they were besieged by colonial forces. The pa surrendered four days later. Between 86 and 128 unarmed prisoners were executed.

The Tribunal found that there was no justification for the murder of between 50 and 70 settlers and Maori in Turanga:

The Whakarau were entitled to defend themselves against Crown actions which were illegal and in breach of Treaty principle, but they breached their own responsibilities as citizens and Treaty partners in attacking and killing or forcibly detaining unarmed civilian targets.

The Crown was entitled to pursue and punish the perpetrators to the full extent of the law. But the Treaty was breached when Crown forces executed without trial, this large group of unarmed prisoners. According to the Tribunal, the scale of systematic killing at Ngatapa represents one of the worst abuses of law and human rights in New Zealand’s colonial history. Certainly it was the worst ever perpetrated by the Crown. The Crown had to respect and uphold the rule of law. It had to comply with the standards it expected of its own citizens.

Following the attack on Matawhero, 279 Turanga Maori ceded 1.195 million acres to the Crown. The Tribunal found that the cession was made under duress – the Crown had threatened to remove its protection unless the entire district was ceded. This threat was in breach of the Treaty. Nor could the deed extinguish the rights of the majority of Turanga Maori who did not sign the cession at all, the Tribunal found. In 1869, the Poverty Bay Commission was established to punish ‘rebels’ by confiscating their lands, and to return land to ‘loyal’ Maori. The Tribunal found that the commission did not have the power to confiscate land. Nor did the commission comply with applicable nineteenth century standards for fair legal process.

The Native Land Court followed the Poverty Bay commission. The court commenced title investigations in Turanga in 1875, under the new Native Lands Act. The Tribunal found that although Turanga Maori saw the benefit of titles that had been ratified by the Crown; they wanted to make their own title decisions. They opposed the land court because it took that right from them. Alongside this, the Native Lands Act removed from Maori communities, the legal capacity to manage their lands collectively. This meant that the only way Maori could benefit from the new colonial economy was by the sale of individual shares, but the land sale process under the new Act was complex, expensive, and risky for both buyers and sellers. To compound matters the titles that Maori received remained in a form of customary tenure that was far less valuable in the new settler driven market. As a result, prices were significantly discounted. Taken together, these factors meant that Maori sold more land as individuals than they would have sold as a result of a community decision making process, and at far lower overall prices. The promised economic benefits which colonisation would bring to Maori were thus never realised in Turanga.

The Tribunal noted that the peoples of Gisborne have a rich and sometimes dramatic shared history. However, it expressed frustration at the lack of local education programmes to ensure local communities are aware of that history. That, it said, remains a primary obstacle to the process of reconciliation.

The Waitangi Tribunal’s report on Treaty claims around the Turanga (Gisborne) area was formally handed to claimants at Whakato Marae on 30 October 2004.

The Tribunal has ruled that the Crown repeatedly disregarded its own laws in its treatment of Maori from the Turanga area in the nineteenth century. In particular, it found that the execution of unarmed prisoners at Ngatapa Pa in 1868 was one of the worst abuses of law and human rights in New Zealand’s colonial history.

Significantly, it ruled that Maori also breached the Treaty during this period and that there was no justification for the murder of Pakeha settlers and other Maori in the Turanga area by Te Kooti and his followers.

This was the first report to be released under the Tribunal’s ‘new approach’, which heralded a faster approach to the hearing of, and reporting on, historical claims. This approach produced a report in four and a half years – from the first judicial conference held with claimant groups, their lawyers, and the Crown to discuss how the new approach would work practically in Gisborne, through to hearings, and then the writing, editing, and release of the report . This is roughly half the time it has taken in comparable districts using the standard inquiry process. The Tribunal says the two-volume report is the result of an unprecedented degree of cooperation both among the various claimant groups, and between claimants and the Crown.

In Turanga Tangata Turanga Whenua, the Tribunal found that the Crown breached the principles of the Treaty of Waitangi by: attacking a defensive pa at Waerenga a Hika in November 1865; deporting and detaining 123 prisoners on Wharekauri (the Chatham Islands) without charge or trial; executing between 86 and 128 unarmed prisoners at Ngatapa Pa in 1868, again without charge or trial; extracting the cession of 1.195 million acres under duress; and by confiscating, without legal authority, the property rights of hundreds of Turanga Maori ‘alleged’ to be rebels.

Significantly, the Tribunal also found that Te Kooti and his followers breached their own responsibilities as citizens and Treaty partners, when they murdered between 50 and 70 Maori and Pakeha at the settlements of Matawhero, Oweta and Patutahi. Even though the Whakarau (as Te Kooti’s followers were called) were greatly provoked by Crown action, the Tribunal found that ‘the Treaty of Waitangi continued to speak for reasonableness, moderation and an ethical response’.

The report details significant moments from Gisborne’s past. Turanga, as it was then called, was a fully autonomous district until 1865. That autonomy was broken when the Crown laid siege to the defensive pa at Waerenga a Hika, killing 71 defenders in the process. The Tribunal found that the Crown may only turn its guns on its own citizens if they are in rebellion. This, it said, was not the case in Turanga.

Following the surrender of the pa, the Crown imprisoned 113 men and transported them to the Wharekauri (the Chatham Islands). The Tribunal found that since the prisoners never faced charges, and were never convicted of any offence, their imprisonment was unlawful and in breach of the Treaty.

Te Kooti and nearly 300 men, women, and children escaped from Wharekauri. The Whakarau landed at Whareongaonga, south of the Bay of Plenty. Colonial forces tried to re-arrest them, and failed. Te Kooti sought safe passage from Tuhoe and sanctuary from King Tawhiao. When denied both, he attacked the Turanga settlements of Patutahi, Matawhero, and Oweta. Between 50 and 70 Pakeha and Maori were killed by the attackers. The Whakarau retreated to Ngatapa Pa in the interior, where they were besieged by colonial forces. The pa surrendered four days later. Between 86 and 128 unarmed prisoners were executed.

The Tribunal found that there was no justification for the murder of between 50 and 70 settlers and Maori in Turanga:

The Whakarau were entitled to defend themselves against Crown actions which were illegal and in breach of Treaty principle, but they breached their own responsibilities as citizens and Treaty partners in attacking and killing or forcibly detaining unarmed civilian targets.

The Crown was entitled to pursue and punish the perpetrators to the full extent of the law. But the Treaty was breached when Crown forces executed without trial, this large group of unarmed prisoners. According to the Tribunal, the scale of systematic killing at Ngatapa represents one of the worst abuses of law and human rights in New Zealand’s colonial history. Certainly it was the worst ever perpetrated by the Crown. The Crown had to respect and uphold the rule of law. It had to comply with the standards it expected of its own citizens.

Following the attack on Matawhero, 279 Turanga Maori ceded 1.195 million acres to the Crown. The Tribunal found that the cession was made under duress – the Crown had threatened to remove its protection unless the entire district was ceded. This threat was in breach of the Treaty. Nor could the deed extinguish the rights of the majority of Turanga Maori who did not sign the cession at all, the Tribunal found. In 1869, the Poverty Bay Commission was established to punish ‘rebels’ by confiscating their lands, and to return land to ‘loyal’ Maori. The Tribunal found that the commission did not have the power to confiscate land. Nor did the commission comply with applicable nineteenth century standards for fair legal process.

The Native Land Court followed the Poverty Bay commission. The court commenced title investigations in Turanga in 1875, under the new Native Lands Act. The Tribunal found that although Turanga Maori saw the benefit of titles that had been ratified by the Crown; they wanted to make their own title decisions. They opposed the land court because it took that right from them. Alongside this, the Native Lands Act removed from Maori communities, the legal capacity to manage their lands collectively. This meant that the only way Maori could benefit from the new colonial economy was by the sale of individual shares, but the land sale process under the new Act was complex, expensive, and risky for both buyers and sellers. To compound matters the titles that Maori received remained in a form of customary tenure that was far less valuable in the new settler driven market. As a result, prices were significantly discounted. Taken together, these factors meant that Maori sold more land as individuals than they would have sold as a result of a community decision making process, and at far lower overall prices. The promised economic benefits which colonisation would bring to Maori were thus never realised in Turanga.

The Tribunal noted that the peoples of Gisborne have a rich and sometimes dramatic shared history. However, it expressed frustration at the lack of local education programmes to ensure local communities are aware of that history. That, it said, remains a primary obstacle to the process of reconciliation.

This report concerns the raupatu (confiscation) of Maori land in the Tauranga district, following the war of 1864. The report covers 55 separate claims. The claimants represent several iwi, including Ngati Ranginui, Ngai Te Rangi, Waitaha, and the Marutuahu people. The Tribunal's inquiry was not the first but it was the fullest inquiry into the confiscation that has ever been conducted. In contrast to the royal commission of 1927, which reported on the Tauranga confiscation and concluded that Tauranga Maori had not been badly treated, the Tribunal found that they have substantial grievances. The key findings of the majority report are outlined below.

War at Tauranga

The battles at Gate Pa (Pukehinahina) on 29 April 1864 and Te Ranga on 21 July 1864 followed on from the Waikato war. The Tribunal found that the Crown breached the Treaty in substantial ways by landing troops at Tauranga and attacking local Maori. This resulted in large-scale loss of life and property on the part of Tauranga Maori. The Crown then used the resistance of Tauranga Maori as an excuse to confiscate their land, breaching the Treaty obligation to allow Maori to retain ownership and control of their land. The Crown justified the confiscation on the ground that Maori were in 'rebellion'. However, the Tribunal rejected this justification because it failed to take into account the circumstances of New Zealand in the 1860s.

Loss of land

The report details the loss of Maori land as a result of raupatu. The entire Tauranga district, estimated at 290,000 acres, was included in the confiscation proclamation of 1865. Of this area, the Crown retained a 50,000-acre area known as the 'confiscated block'. Though the land outside the 50,000-acre block was returned to Maori between 1865 and 1886, most of this land was quickly lost from Maori ownership as well. The Crown purchased some 90,000 acres within the district known as the Te Puna-Katikati block and a further area of 'returned land', estimated at 75,000 acres, was sold to the Crown or private purchasers. By 1886, Tauranga Maori retained only an estimated 75,000 acres of relatively poor quality land and this was no longer held under customary title.

The confiscated block

The confiscation of 50,000 acres of land in the central part of the district, was a Treaty breach that was never really contested by the Crown in the Tribunal's inquiry. The Crown did argue that because the amount of land finally taken from Tauranga Maori was relatively small, little actual prejudice to Tauranga Maori resulted. The Tribunal rejected this and concluded that the Tauranga confiscation was a grave injustice on the part of the Crown, which has severely hindered the aspirations of Tauranga Maori since the 1860s. In particular, the Tribunal found that the hapu of Ngati Ranginui, who lived largely within the confiscated block, lost most of their land and have suffered deprivation as a result.

Te Puna-Katikati Crown purchase

In August 1864, in an effort to acquire more land, some Government Ministers took a number of Ngai Te Rangi chiefs to Auckland and persuaded them to sign a deed to sell the land from Te Puna through to Katikati. The chiefs of Ngati Pukenga, Ngati Ranginui, and Marutuahu, as well as many of Ngai Te Rangi, were not consulted and thus never agreed to sell their land in the area. Despite the protests of these rangatira, the Government insisted that the land had been sold. Some chiefs not party to the original transaction eventually got some payment but they were not allowed to keep their land. The Treaty of Waitangi promised Maori they could retain their land for as long as they so desired but the Crown did not allow Maori to retain Te Puna-Katikati. The Tribunal found that this, too, was a significant breach of the Treaty.

Returned land

The report also details the fate of the land returned to Maori outside the 50,000-acre confiscated block and the Te Puna-Katikati block. The Crown used land commissioners to ascertain rights to this land and returned it to them over the next 20 years. But it was returned in individual rather than customary title and could be sold to the Crown or Pakeha without the consent of local chiefs. All but some 75,000 acres was sold by 1886. The Crown took advantage of this situation to purchase some significant blocks of land including, even, the sacred mountain of Mauao (Mount Maunganui) - despite the protests of the leading chief of the area.

Conclusion

Tauranga Maori suffered considerable prejudice as a result of breaches of the principles of the Treaty arising from the Crown's confiscation, return and purchase of Maori land in the Tauranga district before 1886. It is the recommendation of the Tribunal that the Crown move quickly to settle the Tauranga claims with generous redress.

Minority opinion

One member of the Tauranga Tribunal - the Honourable Dr Michael Bassett - wrote a five-page dissenting opinion in which he takes issue with three of the general findings of the majority members. These are: that the Crown was not justified in taking military action against Tauranga Maori in the 1860s, that the Crown breached the Treaty by individualising the tenure of Maori land at Tauranga, and that the Crown failed to adequately supervise the alienation of returned Maori land. However, despite his dissenting views on these points, Dr Bassett concluded that the other Treaty breaches suffered by Tauranga Maori were serious enough to warrant generous redress from the Crown. He stated in his opinion that 'my conclusions do not warrant any lessening of the quantum of settlement made with Tauranga Maori'.

At the end of March 2004, the Minister in Charge of Treaty of Waitangi Negotiations and the Minister of Māori Affairs recognised the deed of mandate of the executive council of Nga Kaihautu o Te Arawa to negotiate the settlement of all of Te Arawa’s historical claims. Following that decision, claims concerning the planned settlement negotiations and the recognition of the mandate were filed with the Waitangi Tribunal and the claims were granted urgency. Judge Caren Wickliffe, John Baird, and Gloria Herbert were appointed to hear the claims (with Judge Wickliffe presiding), and a hearing was held in Rotorua in late June 2004. The Te Arawa Mandate Report was released in September 2004.

The report found that the Crown failed to carry out a sufficiently active role in monitoring and scrutinising the Te Arawa mandating process, or in assessing the executive council’s deed of mandate. The Tribunal concluded that issues of representivity and accountability with respect to the executive council had not been thoroughly or fully resolved.

However, the Tribunal stopped short of upholding the claims per se or finding that the Crown acted in breach of the Treaty causing prejudice, since an opportunity remained for matters to be put to right. The Crown had also indicated that it wanted to review the process by which the executive council’s mandate was achieved.

The Tribunal thus suggested that a hui be held of Te Arawa iwi and hapu representatives (elected members of the kaihautu) to debate and vote on issues such as the number of groups to be represented on the executive council, the proportionality of seats across the iwi and hapu, and the question of the degree of accountability of the executive council to the kaihautu.

The Tribunal stated that not only would the Crown be in breach of the Treaty if it made an inadequate response to the Tribunal’s suggested course of action but it would also risk promoting entrenched division within Te Arawa between the executive council and its opponents. Leave was granted to the claimants to return to the Tribunal if the Crown’s response was in fact inadequate.

The Tribunal also made some specific comments about particular iwi and hapu, such as finding that, many years after undertaking to do so, the Crown was both legally and morally obligated to enter into separate negotiations with Ngati Makino. The Tribunal found that this should occur at the same time as the negotiations with the rest of Te Arawa, and that, if Ngati Makino agreed, Waitaha should be invited to join these negotiations.

Finally, the Tribunal noted that claims such as those concerning the Te Arawa mandate would continue to be heard by the Tribunal from time to time. It thus provided some suggested best-practice guidelines which could be used by the Crown and Māori should they wish to develop a Treaty-compliant process for the recognition of mandates to negotiate settlements.

In the months following the release of the Te Arawa Mandate Report in August 2004, several requests for a resumption of the inquiry were made by claimants, on the grounds that the Crown had failed to make an adequate response to the Tribunal's suggestions.

In December 2004, the Tribunal agreed to resume the inquiry. A one day hearing was held on 12 January 2005. The Tribunal reported on the January 2005 hearing in the Te Arawa Mandate Report: Te Wahanga Tuarua, released in March 2005.

This short interim report concerns a claim about the polling arrangements for the 10 July 2004 Te Tai Hauauru by-election.

Addendum to the short interim report concerning a claim about the polling arrangements for the 10 July 2004 Te Tai Hauauru by-election.

The Tribunal's Mohaka ki Ahuriri Report was released on Saturday 5 June 2004. It covers 20 Hawke's Bay claims spanning a district bounded by the Tutaekuri River to the south, Hawke Bay to the east, the Waiau River to the north, and the inland ranges and the old Hawke's Bay provincial boundary to the west. The claimants were predominantly Ngati Kahungunu, although some identified more or equally with Ngati Tuwharetoa.

In summary, the claims concerned Māori land in two broad ways. First, they related to the loss of land through pre-1865 Crown purchases, the operation from 1865 of the Native Land Court, the 1867 Mohaka–Waikare confiscation, and later Crown purchasing (mainly conducted from 1910 to 1930). Secondly, they related to the barriers to the use and enjoyment of lands retained in Māori ownership, including title disruption, the lack of development opportunities, the fragmentation and multiple ownership of tiny parcels, and the lack of access.

In particular, the Tribunal investigated:

The status of the first land transactions with the Crown in the district in 1851, which the claimants asserted to be akin to ‘treaties’. Whether a supposed ‘rebellion’ justified the military engagements in 1866 and the confiscation in 1867. The propriety of the Crown’s handling of both the ‘return’ of certain lands after the confiscation and the title disputes which followed for over 80 years. The point at which the Crown should have stopped purchasing Māori land and put its effort into helping develop the remaining Māori land base; and whether there is a link between poverty and landlessness.

The Tribunal found a number of serious breaches relating to land loss and remaining Māori land base:

Overall, we have identified serious breaches of the principles of the Treaty of Waitangi by the Crown in the loss of Māori land in our inquiry district. We have also found that the Crown acted in clear breach of the Treaty in its treatment of the remaining Māori land base. We have also made the point that by far the bulk of that surviving base (some 125,000 acres out of a total of roughly 800,000) remains in Māori ownership principally because it was viewed by the Crown as too rugged and unproductive to bother purchasing.

Of particular note was the Crown's use of section 363 of the Native Land Act in 1910, alienating Māori land ownership:

from 1911 the Crown persisted over two decades in buying up individual interests in land, more than halving the amount of land left in Māori ownership at Mohaka in 1910. It adopted the usual tactics of employing alienation restrictions under section 363 of the Native Land Act 1909, as well as making payments on the basis of out-of-date valuations. This purchasing not only conflicted with the Stout–Ngata recommendations but seemed to serve no clear purpose. And, because the Crown had acquired so many partial interests, scattered throughout the various blocks, it decided upon a scheme to consolidate its interests. Even after this decision was made, however, purchasing continued unabated – in fact, the impetus for it increased, as the Crown tried to gain as much land as it could in the northern part of the Mohaka block, where the blackberry infestation was less, before the exchanges took place.

The Tribunal recommended that the Crown and the claimants negotiate over the settlements of the claims, and it made some suggestions as to the appropriate groups for the Crown to deal with. It also noted that Crown counsel had made a number of concessions of failings by the Crown to live up to the standards envisaged in the Treaty.

The Process to Date

This report is the outcome of an urgent inquiry into the Crown’s policy for the foreshore and seabed of Aotearoa-New Zealand. The many claimant groups represented in the inquiry comprised most of the coastal iwi.1

The urgent inquiry was sought after the Crown announced its response to the Court of Appeal’s decision in the Marlborough Sounds case.2 In that decision, the Court of Appeal departed from the previous understanding that the Crown owned the foreshore and seabed under the common law. This opened the way for the High Court to declare that Maori common law rights in the foreshore and seabed still exist, and for the Maori Land Court to declare land to be customary land under Te Ture Whenua Maori Act 1993.

The Crown supported the claimants’ application for an urgent inquiry, and the timeframes were all tailored to the Crown’s requests. The changing needs of the Crown meant that a proposed hearing in November 2003 was adjourned, and we made time available in January. We tried to balance the need on the one hand for claimants to have sufficient time to prepare for a very significant hearing, and the need on the other for our report to be available to Ministers before planned legislation is introduced. The result was that the hearing took place over six days at the end of January 2004, and we have had four weeks in which to produce our report.

Terminology

From the outset, it is essential to be clear what we are talking about when we refer to the foreshore and seabed. First, what is the foreshore? It is the intertidal zone, the land between the high- and low-water mark that is daily wet by the sea when the tide comes in. It does not refer to the beach above the high-water mark. The seabed is the land that extends from the low-water mark, and out to sea.

The need to distinguish the foreshore from the adjacent dry land and seabed arises from the English common law, which developed distinct rules for that zone. In Maori customary terms, no such distinction exists.

We wanted to take our language out of the English legal paradigm. We raised with Sir Hugh Kawharu, a witness in our inquiry, whether there was a Maori term that clearly embraced the whole of the foreshore and seabed. Te takutai moana was a term that he felt may be variously understood by different groups in different situations. To some, it had more of an inshore connotation, whereas others might understand it as also connoting the high seas. The word papamoana, meaning simply the bed of the sea, did not seem to be as widely used.

We have therefore reluctantly resorted to the English terminology, foreshore and seabed. We recognise, and chapter 1, ‘Tikanga’, makes it very clear, that this terminology is culturally specific.

The Context

The Government’s resolve to step in as soon as the Court of Appeal’s decision was released to implement another regime very quickly, combined with the apparently widespread fear that Maori will control access to the beach, has led to an emotional response across the whole country. It is necessary to have an understanding of complex legal concepts to discuss foreshore and seabed in an informed way. Perhaps that is why the public discourse has generally been so unsatisfying, oversimplifying the issues and thereby distorting them. It appears to us that polarised positions (not necessarily underpinned by good information) have quickly been adopted, and real understanding and communication have been largely absent.

 The Crown released the first version of its foreshore and seabed policy in August 2003. It elicited a storm of protest from Maori. In the following weeks, the Crown held a number of hui around the country to consult with Maori about the policy. We have heard a lot of criticism about the Government’s consultation, but we decided early on that we would not inquire into the alleged deficiencies of that process. We felt that to do so would only be to confirm what everybody already knew: the consultation process was too short; and it was fairly clear that the Government had already made up its mind. The policy was further developed between August and December 2003, but was not changed in any of its essentials.

 The Nature of our Task

In embarking upon our report, we are conscious that while it is our job to consider the Crown’s position on the policy, and the policy itself, in light of the Treaty, ultimately the Government is free to do what it wishes. Our jurisdiction is recommendatory only, and power to govern resides with the Government. We have no say in how much or how little regard is paid to our views. We hope that the Government will properly consider what we have to say and, if it is cogent, will be influenced by it.

As a quasi-judicial body standing outside the political process, we proceed in the expectation that governments in New Zealand want to be good governments, whose actions although carried by power are mitigated by fairness. Fairness is the value that underlies the norms of conduct with which good governments conform - legal norms, international human rights norms, and, in the New Zealand context, Treaty norms. We think that even though governments are driven by the need to make decisions that (ultimately) are popular, New Zealand governments certainly want their decisions to be coloured by fairness. In fact, we think that New Zealanders generally have an instinct for fairness, and that a policy that is intrinsically fair will, when properly explained, ultimately find favour.

We see it as part of our role in the present situation to ensure that the Government has before it all the matters it needs to know in order that its decision-making is fair. In the Waitangi Tribunal, consideration of what is fair is always influenced by the agreements and understandings embodied in the Treaty, but fairness in Treaty terms is not the only relevant norm. There is a fairness that can be distilled independently of the Crown’s commitments under the Treaty, and we think that wider fairness has relevance in the present situation. This is an important theme of our report.

The Policy

The Crown told us that:

    In brief, the Government’s policy seeks to establish a comprehensive, clear and integrated framework which provides enhanced recognition of customary interests of whanau, hapu and iwi in foreshore and seabed, while at the same time confirming that foreshore and seabed belongs to, and is in principle accessible by, all New Zealanders.3

We have closely examined the policy, and the Crown’s claims for it. We have been unable to agree with any of the Crown’s assertions about the benefits that will accrue to Maori. On the other hand, it does seem to us that the policy will deliver significant benefits to others - reinstatement of (effectively) Crown ownership, elimination of the risk that Maori may have competing rights, and the ability of the Crown to regulate everything.

As we see it, this is what the policy does:

    * It removes the ability of Maori to go to the High Court and the Maori Land Court for definition and declaration of their legal rights in the foreshore and seabed.
    * In removing the means by which the rights would be declared, it effectively removes the rights themselves, whatever their number and quality.
    * It removes property rights. Whether the rights are few or many, big or small, taking them away amounts to expropriation.
    * It does not guarantee compensation. This contradicts the presumption at law that there shall be no expropriation without compensation.
    * It understates the number and quality of the rights that we think are likely to be declared by, in particular, the Maori Land Court under its Act. We think that the Maori Land Court would declare that customary property rights exist, and at least sometimes these would be vested as a fee simple title.
    * In place of the property rights that would be declared by the courts, the policy will enact a regime that recognises lesser and fewer Maori rights.
    * It creates a situation of extreme uncertainty about what the legal effect of the recognition of Maori rights under the policy will be. They will certainly not be ownership rights. They will not even be property rights, in the sense that they will not give rise to an ability to sue. They may confer priority in competing applications to use a resource in respect of which a use right is held, but it is not clear whether this would amount to a power of veto.
    * It is therefore not clear (particularly as to outcomes), not comprehensive (many important areas remain incomplete), and gives rise to at least as many uncertainties as the process for recognition of customary rights in the courts.
    * It describes a process that is supposed to deliver enhanced participation of Maori in decision-making affecting the coastal marine area, but which we think will fail. This is because it proceeds on a naive view of the (we think extreme) difficulties of obtaining agreement as between Maori and other stakeholders on the changes necessary to achieve the required level of Maori participation.
    * It exchanges property rights for the opportunity to participate in an administrative process: if, as we fear, the process does not deliver for Maori, they will get very little (and possibly nothing) in return for the lost property rights.

Treaty Breaches and Prejudice

These are fundamental flaws. The policy clearly breaches the principles of the Treaty of Waitangi. But beyond the Treaty, the policy fails in terms of wider norms of domestic and international law that underpin good government in a modern, democratic state. These include the rule of law, and the principles of fairness and non-discrimination.

The serious breaches give rise to serious prejudice:

(a) The rule of law is a fundamental tenet of the citizenship guaranteed by article 3. Removing its protection from Maori only, cutting off their access to the courts and effectively expropriating their property rights, puts them in a class different from and inferior to all other citizens.
(b) Shifting the burden of uncertainty about Maori property rights in the foreshore and seabed from the Crown to Maori, so that Maori are delivered for an unknown period to a position of complete uncertainty about where they stand, undermines their bargaining power and leaves them without recourse.
(c) In cutting off the path for Maori to obtain property rights in the foreshore and seabed, the policy takes away opportunity and mana, and in their place offers fewer and lesser rights. There is no guarantee to pay compensation for the rights lost.

Recommendations

When considering what recommendations to make, we were mindful that many of the claimants accepted that, realistically, there was no prospect of a regime for achieving te tino rangatiratanga over the foreshore and seabed. On the whole, their aspirations were more modest. Most agreed that they would live with the status quo, post-Marlborough Sounds. All, however, said that their most preferred option was for the Government to agree to go back to the drawing board, and engage with Maori in proper negotiations about the way forward. We agree that this would be the best next step, and that is our strong recommendation to the Government.

However, like the claimants, we have sought to be pragmatic. We recognise that the Government may not wish to follow our recommendation. So we offer for consideration further options that we think would ameliorate the Crown’s position in Treaty terms, and at the same time achieve the essential policy objectives of public access and inalienability. Our suggestions are premised on our view that (1) in terms of the legal status quo, the least intervention is the best intervention; and (2) it is critical that the path forward is determined by consensus.

Our Report

In many ways, the Marlborough Sounds case and the Government’s response to it has proved to be a catalyst for new thinking about race relations in our country. Some of that thinking has been positive, but much of it seems to us to have been negative. We recognise that the Government, in coming now to finalise its approach to the foreshore and seabed, has some very difficult decisions ahead.

We have had the opportunity to analyse the issues closely and dispassionately. We sit outside the political arena, so we can test the arguments for their cogency, and probe the legal concepts underlying them, in a way that is neutral but, we hope, rigorous. We were grateful that from the outset, the Crown was keen to have our input, recognising we think that the time for consultation had been short, and that the temperature of public debate militated against genuine exchange of ideas.

We come to these issues with a desire to make a positive contribution. We hope that our report will be of interest and assistance both to Ministers and to the wider public, and that it is not too late for more informed discourse.