Rapua ngā tuhinga ruku tātari

The circumstances of this case … cry aloud for redress for the Natives. The … reserves are theirs and should be returned to them, no matter what cost to the Crown this may involve.

Judge Acheson, 1942

In November 1996, a claim concerning the Maunganui block, the Waipoua Forest, Lake Taharoa and surroundings, and the Waimamaku Valley was filed with the Waitangi Tribunal by various members of Te Roroa. This claim was registered as Wai 38.

The Tribunal constituted to hear the claim comprised Judge Andrew Spencer (presiding), Mary Boyd, Ngapere Hopa, John Kneebone, and Turirangi Te Kani. Sadly, Mr Te Kani died before the completion of the proceedings, and Sir Monita Delamere was subsequently appointed to the Tribunal. Nine hearings were held between June 1989 and May 1991, and the report was presented to the Minister of Māori Affairs and the claimants on 3 April 1992 at Te Waikaraka Marae in Kaihu.

The Tribunal found that the Crown had acted unfairly when it purchased land from Te Roroa and that it had failed to make proper provision for reserves for local Māori. The Tribunal also found that the Crown had allowed Te Roroa’s taonga to be violated and that it had denied Te Roroa the benefits of development enjoyed by other New Zealanders. The Tribunal recommended that all the land that should have been set aside from the Crown purchases of the Maunganui, Waipoua, Waimamaku, and Wairau lands be returned to Te Roroa.

The Interim Report on Sylvia Park and Auckland Crown Asset Disposals concerns three claims lodged by the Ngāti Whātua o Orakei Maori Trust Board, Ngāti Paoa and Ngai Tai Umupuia o Tamaki, and Ngāti Whātua relating to 21 hectares at Mount Wellington. The land was known as Sylvia Park and formed part of the 1300-acre Hamlin purchase of 1838. The iwi claimed that the land should have been reserved for them but that the Crown instead kept it for itself, and they were dismayed to learn of the Government’s intention to sell the land through the Department of Survey and Land Information.

In 1992, the Tribunal of Chief Judge Eddie Durie (presiding), Professor Gordon Orr, and Joanne Morris was advised that the Sylvia Park land had been sold and that no protective arrangements had been made. The Tribunal therefore recommended that the proceeds of the sale be held in a separate trust account pending a determination of the claims and that the Government negotiate with the Ngāti Whātua of Orakei Māori Trust Board in association with representatives for Ngāti Paoa–Ngai Tai for a separate settlement and arrangement for the disposal of Crown or State enterprise assets in Auckland.

The owners of Oriwa 1B3 - a block of Maori freehold land - lodged a claim with the Tribunal objecting to a district scheme designation which proposed that the land be a public reserve. Following inquiries by Tribunal research staff and the commissioning and release of an exploratory research report on the matter, the Tribunal was formally advised that the Department of Conservation wanted the public reserve designation to be lifted. as a result, no recommendations needed to be made.

The narrative that follows will not lie comfortably on the conscience of this nation, just as the outstanding grievances of Ngai Tahu have for so long troubled that tribe and compelled them time and again to seek justice. The noble principle of justice, and close companion honour, are very much subject to question as this inquiry proceeds. Likewise, the other important equities of trust and good faith are called into account and as a result of their breach sadly give rise to well grounded iwi protestations about dishonour and injustice and their companions, high-handedness and arrogance.

The Waitangi Tribunal

The various reports dealing with the Ngāi Tahu claims constitute the Tribunal’s most exhaustive treatment of an inquiry. The three volumes of the Ngai Tahu Report 1991 total more than 1200 pages, and the Sea Fisheries and Ancillary Claims reports add another 400 pages each to the Tribunal’s coverage of the issues.

I hereby claim upon the principles of justice, truth, peace and goodwill for and on behalf of my peoples within the principles of the Treaty of Waitangi.

Rakiihia Tau

The Ngāi Tahu inquiry began with a claim, Wai 27, registered in August 1986. It was brought by Rakiihia Tau and the Ngāi Tahu Maori Trust Board, but as the Tribunal said, it was ‘really from and about Ngai Tahu, an amalgam formed from three main lines of descent which flowed together to make the modern tribe’. The inquiry was extensive: over a period of 3½ years, 23 hearings were conducted and the Tribunal received 900 submissions and heard from 262 witnesses and 25 corporate bodies.

The claim was presented in nine parts, known as the ‘Nine Tall Trees of Ngai Tahu’. Eight of these ‘trees’ represented the different areas of land purchased from Ngāi Tahu, whilst the ninth represented Ngāi Tahu’s mahinga kai, or food resources. A number of grievances attached to each of the nine tall trees, and these came to be known as the ‘branches of the Nine Tall Trees’. There were also a number of smaller claims, which came to be described as the ‘undergrowth’, or ancillary, claims.

The Tribunal constituted to hear the claims comprised Deputy Chief Judge Ashley McHugh (presiding), Bishop Manuhuia Bennett, Sir Monita Delamere, Professor Sir Hugh Kawharu, Professor Gordon Orr, Sir Desmond Sullivan, and Georgina Te Heuheu, though Sir Monita died in 1993, before the last of the reports was released. The Ngai Tahu Report came out in 1991, the Ngai Tahu Sea Fisheries Report in August 1992, and the Ngai Tahu Ancillary Claims Report in May 1995.

This claim is not primarily about the inadequacy of price that Ngai Tahu was paid, although as we will see in respect of the North Canterbury, Kaikoura and Arahura purchases, the claimants strongly criticised the arbitrary imposition and unfavourable terms of the purchase price. Ngai Tahu have certainly a sense of grievance about the paucity of payment they received for their land but then Ngai Tahu have always regarded the purchase price not as a properly assessed market value consideration in the European concept but rather as a deposit; a token, a gratuity. Ngai Tahu understanding and the substance of their expectations was that they agreed to share their resources with the settler. Each would learn from the other. There was an expectation that Ngai Tahu would participate in and enjoy the benefits that would flow from the settlement of their land. As part of that expectation they wished to retain sufficient land to protect their food resources. They expected to be provided with, or to have excluded from the sale, adequate endowments that would enable them to engage in the new developing pastoral and commercial economy.

This claim and this story is about that expectation. Ngai Tahu grievances therefore are directed at the Crown’s failure to keep its promises, its failure to provide the reserves, the food resources and the health, educational and land endowments that were needed to give Ngai Tahu a stake in the new economy. This claim is also about Ngai Tahu’s comprehension of those areas of land they considered they did not sell to the Crown despite what the written agreements might have said. And of course, this claim is about Ngai Tahu expectations of their rights under the Treaty of Waitangi and how those rights were disregarded by the Crown in its dealings with the tribe.

The Waitangi Tribunal

In the Ngai Tahu Report, the Tribunal concluded that many of the grievances arising from the Crown’s South Island purchases, including those relating to mahinga kai, were established, and the Crown itself conceded that it had failed to ensure that Ngāi Tahu were left with ample lands for their needs. The Tribunal found that, in acquiring more than half the land mass of New Zealand from the tribe for £14,750, which left Ngai Tahu only 35,757 acres, the Crown had acted unconscionably and in repeated breach of the Treaty, and its subsequent efforts to make good the loss were found to be ‘few, extremely dilatory, and largely ineffectual’. After the Ngai Tahu Report was released, the Tribunal also put out a short supplementary report in which it referred to the need for tribal structures to be put in place to allow Ngāi Tahu to conduct remedies negotiations with the Crown. The Tribunal supported the proposals regarding representation that the claimants had made and it recommended that the Ministry of Māori Affairs introduce legislation constituting the Ngāi Tahu Iwi Authority as the appropriate legal personality to act on behalf of the iwi in those negotiations.

The Sea Fisheries Report dealt with the issue of Ngāi Tahu’s fisheries, and reported that, as a direct consequence of the loss of their land, Ngāi Tahu were ‘unable to continue their thriving and expanding business and activity of sea fishing’. The Tribunal found that, in legislating to protect and conserve fisheries resources, the Crown had failed to recognise Ngāi Tahu’s rangatiratanga over their fisheries and in particular their tribal rights of self-regulation or self-management of their resource. It also found that the quota management system then in place was in fundamental conflict with the terms of the Treaty and with Treaty principles. The Tribunal recommended that the Crown and Ngāi Tahu negotiate a settlement of the sea fisheries claim, that an appropriate additional percentage of fishing quota be allocated to Ngāi Tahu and that Waihora (Lake Ellesmere) be returned to them as an eel fishery, and that the Fisheries Act 1983 be amended to allow for ‘mahinga kaimoana’, or specific marine areas set aside for iwi.

The Ancillary Claims report dealt with 100 of the ‘undergrowth’ claims and showed how the 35,757 acres that Ngāi Tahu had been left with were further eroded by public works and other acquisitions. Of the 100 claims, 41 were found to involve breaches of the Treaty, and as a result, the Tribunal recommended that the Public Works Act 1981 be amended and proposed changes to the way that the Crown acquired land from Māori for public purposes.

In late 1992, the Waitangi Tribunal inquired into several claims concerning a September 1992 settlement between the Crown and Maori on fisheries, commonly known as the Sealords deal. Hearings took place at the end of September and the beginning of October, and the Tribunal, which consisted of Chief Judge Eddie Durie (presiding), Bishop Bennett, Hugh Kawharu, and Joanne Morris, released its report in November.

The fisheries settlement had been hailed as historic. While it was not the only national settlement, it was the first to extinguish claims (the forestry and State Enterprise settlements being steps along the way) and the first to affect all iwi. It was significant too in that, previously, 'first in, first served' applied, while this settlement proposed the allocation of benefits according to a regular plan.

None the less, there were objections. The complaint in this claim was that the Deed of Settlement, or the Crown policy that it proposed, was contrary to the Treaty and prejudicial to the claimants in that it would diminish their rangatiratanga and fishing rights and impose new arrangements that had not been adequately agreed on.

The Court of Appeal, referring to apparently conflicting provisions in the deed, said:

This weakness in the Deed and other aspects of it which are criticised by the appellants could be in part accounted for by input into it from different hands. Certainly it is a most unusual document and, perhaps, even designedly, obscure in some major respects.

The Tribunal considered that the Crown had done well in seeking to provide for Māori interests in commercial fisheries, but that the spirit had become lost in the small print, leading to complaints from Māori:

Most especially it needs to be appreciated that any settlement of this nature has two essential goals, not just to pay off for the past, but also to buy into the future. The Treaty, it must be understood, is primarily concerned with the latter. It is not the extinguishment of rights that is essential but the affirmation of them. Somehow the Deed does not capture this, apart from the preamble, and Māori anxieties were understandable.

The Tribunal concluded that the Crown's Treaty obligations to hapu required any allocation of benefits to be based on principles that were fair. As the Deed stood, these obligations were likely to be compromised; both inconsistently with Treaty principles and in a manner prejudicial to some Māori. The Tribunal therefore recommended that:

that the allocation scheme should not be based on Treaty principles alone, but according to what is tika, or fair, in all the circumstances. This may include Treaty principles but need not be exclusive to them;[and]

that objections should not be referred to this Tribunal, as our jurisdiction is constrained, but should be sent to some court or especially established body that is able to consider all relevant matters.

Despite its controversial aspects, the commercial sea-fisheries agreement was subsequently embodied in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Māori now own some 50 percent of New Zealand's commercial sea fisheries and, in return, have agreed to relinquish future Treaty claims in respect of commercial sea fisheries.

As old Father Thames is to the Londoner
As the Ganges is sacred to the Indian
As the Jordan is spiritual to the Palestines
So is the Mohaka all these things to Ngati Pahauwera
—Ramon Joe

The Mohaka River Report 1992 was the first report concerning Ngati Kahungunu and the East Coast. It was also one of the first of the Waitangi Tribunal’s ‘rivers reports’. The claim concerned the tino rangatiratanga of Ngāti Pahauwera over the Mohaka River and was brought by the late Ariel Aranui, for himself and on behalf of Ngāti Pahauwera, in January 1990. The claimants said that their tino rangatiratanga over the river, as confirmed and guaranteed in article 2 of the Treaty of Waitangi, had never been relinquished.

The word rangatiratanga is one which Ngati Pahauwera favours. That is the mana, the essential force, that they speak of in respect of their river. That is the spirit of them all and the power, essential force and awe. Their rangatiratanga is the Mohaka River.
—Charlie King

Rangatiratanga of a river as a ‘spiritual, subsistence’ and economic base can be a tremendous heritage and resource. This would have continued for Ngati Pahauwera if the Treaty and its promises had been honoured. However … Government neglect of Maori Sovereignty in terms of Article 2 occurred.

If our rangatiratanga over the river is recognised … we will be able to sustain our life and begin to rebuild a corporate resource base and offer real hope for the development of Ngati Pahauwera people today and for future generations.
—Tureti Moxon

The river claim formed part of a wider claim relating to tribal lands in Hawke’s Bay and Wairarapa. In November 1991, it was severed from that wider claim and accorded urgency by the Tribunal at the request of the claimants because the Planning Tribunal had recommended to the Minister for the Environment that a national water conservation order be placed over the river. The claimants alleged that the making of such an order without their consent would usurp their rangatiratanga and be a breach of the principles of the Treaty.

We always talk about our river, the control of it, and its spirituality. These are the waters of sustenance.

Even though administration of the river and the land has passed into pakeha hands, we retain the control. It is in these treasures (ie the land and the river) that rests the mana. This is what we are fighting for. We know that this is where our salvation is. The control of the river has been our mana from way back. It came from our ancestors and down through the generations.
—Canon Huata

Ngāti Pahauwera’s claim related to the lower reaches of the Mohaka, and they claimed that the river, including its waters, bed, and fisheries, was a taonga of theirs. In particular, they placed great emphasis on the role that the river played in their tribal identity.

The river is a taonga that we as kaitiaki know we have to preserve. Our ancestors taught us to respect the river and if we respected the river, the river looked after us. If the river is desecrated, it will affect the very deep beliefs we have about the river. That is our Taniwha, the life force of the river, our respect for the river.
—Derek Huata

Ngati Pahauwera is at the beginning of the river, at the river mouth here and out to sea. To us, those who stand on the marae, that is the spirit which is upon us. Our sacred mountain, the river of Mohaka, Ngati Pahauwera are the people.

The spirituality of the river, the mana, the sacredness and the authority relates to Ngati Pahauwera solely. The life of the river we do not want interfered with, lest it be lost. It must be left to flow onward, in the way that it did in the days of the elders. If they were here they would be at the river as it flows onward.
—Charlie King

The Mohaka River Tribunal comprised Bill Wilson (presiding), Bishop Manuhuia Bennett, Mary Boyd, Dr Ngapare Hopa, and Georgina Te Heuheu, and hearings were held in Wellington, Mohaka, and Napier between April and June of 1992. There, the claimants argued that the Crown, through legislation (in particular, the Water and Soil Conservation Act 1967), had failed to recognise and give effect to their rangatiratanga over the Mohaka River. They claimed that this legislation was inconsistent with the principles of the Treaty because it failed to recognise tribal authority and to provide appropriate mechanisms for its exercise. The claimants sought a finding that the relevant statutes failed to provide for rangatiratanga, in breach of the Crown’s Treaty obligations, and that new forms of authority for regulating the use of waters and other natural resources should be devised.

The Tribunal released its report in November 1992. In it, the Tribunal found that the Crown’s obligation to protect Māori property to the fullest extent reasonably practicable was crucial to the claim and that, far from doing this, the Crown had actively undermined that interest by promoting legislation and adopting practices which had given little or no recognition to the position of Ngāti Pahauwera. The Tribunal reached the conclusion that the Mohaka River was a taonga of Ngāti Pahauwera when the Treaty was signed and still remained so. Ngāti Pahauwera did not relinquish te tino rangatiratanga over the river, or transfer ownership of its bed or waters. All statutory provisions which assumed that the Crown owned the riverbed and waters, or which conferred exclusive control over the waters on central or local government, were in breach of the Treaty.

We urge Ngati Pahauwera and the Crown, as treaty partners, to enter negotiations as soon as possible as to our recommendations. We are confident that the outcome of such discussions will be an agreement which recognises the legitimate interests in the river of both Ngati Pahauwera and the other citizens of this country and which demonstrates the Treaty of Waitangi can be made to work in a sensible and realistic way in its application to a beautiful river which is both an undoubted taonga of Ngati Pahauwera and a great asset to the country as a whole.
—The Waitangi Tribunal

In reaching its findings, the Tribunal had traversed the issue of the ad medium filum aquae rule, a common-law presumption that would also be argued in other river claims. Ad medium filum aquae holds that the ownership of land adjoining a non-tidal river also includes the ownership of the bed of the river to its mid point. Thus, if the bank of the river is sold, that portion of the riverbed is also sold. The Tribunal distinguished the present claim from the 1962 Court of Appeal decision in Re the Bed of the Whanganui River, and found that the presumption did not apply in this case because the parties to the sale deed would not have intended that the purchase of the land would carry with it the ownership of the adjacent half of the Mohaka riverbed:

In any event the Crown was not entitled to rely on the ad medium filum aquae rule, an English common law presumption which would have been known to few if any settlers in this country in 1851. To rely on such an esoteric rule to acquire a taonga of Ngati Pahauwera without their knowledge would we think have been clearly unjust and in breach of article 2 of the Treaty.

 

In June 1991, Archie Taiaroa, on behalf of himself and Māori affiliated to the National Māori Congress, lodged a claim with the Waitangi Tribunal concerning the disposal of surplus New Zealand Railways lands. The Tribunal constituted to hear the claim comprised Judge Eddie Durie (presiding), Professor Gordon Orr, and Georgina Te Heuheu, and it reported on four such cases, Auckland, South Auckland, Wellington and Waikenae.

In 1992, the Crown-Congress Joint Working Party proposed a scheme for the disposal of 3605 square metres of surplus Railways lands at Waikanae. In its Report on Railway Land at Waikanae of 21 December 1992, the Tribunal said that, having heard the party, it was satisfied that the only Māori with an interest in the land were the Ruakohatu Urupa Trustees and that the Crown would not be acting contrary to the principles of the Treaty of Waitangi in treating with them.

In 1992, Hariata Gordon lodged a claim on behalf of herself and Ngati Paoa which concerned the appointment of members to the Treaty of Waitangi Fisheries Commission under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. The claim alleged that Ngati Paoa, and others that joined the claim, were prejudicially affected by the consultation proposals in the 1992 Act and by a proposed policy of the Minister of Māori Affairs not to consult collectively at a hui, and that the Act and the policy were to that extent inconsistent with the Treaty of Waitangi.

The Tribunal, comprised of Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, and Mary Boyd, recommended that a hui be called, and considered it within the competence of the Ministry of Māori Development for it to call one. They recommended that the hui be directed first to the criteria for appointment and then to the selection of possible candidates.

In March 1987, John Paki lodged a claim with the Waitangi Tribunal concerning the Maori-owned Pouakani B9B block and adjoining Crown lands. Mr Paki brought the claim on behalf of himself and the other trustees and beneficial owners of the lands held by the Titiraupenga and Pouakani B9B Trusts. The claim came to be registered as Wai 33.

The Tribunal constituted to hear the claim comprised Judge Ross Russell (presiding), Emarina Manuel, Professor Evelyn Stokes, and Bill Wilson. Three hearings were held in 1989, in May, August, and October, and the report was released in February 1993.

The Tribunal found that the claim was well founded and recommended that the Crown refund the costs incurred by the claimants in researching the boundaries of the Pouakani B9B and other blocks and that it return 343 acres of land taken as payment for survey charges. It also recommended that the Pouakani B9B block become whenua rahui, or protected land.