Rapua ngā tuhinga ruku tātari

In 1993, Sandra Lee and Tuhuru Tainui lodged a claim for themselves and the rangatira Tuhuru and his descendants which endeavoured to establish that a grievance would be caused by the passing of the proposed Ngai Tahu Bill.

Claim Wai 273 was filed in 1992 by Paul White and related to the Tapuwae 1B and 4 Incorporation. The land under the incorporation was managed under the Maori Affairs Act 1953 and was returned to Maori shareholders, with outstanding debts, in 1982. The claim alleged negligence during the period of Crown management which resulted in the outstanding debts.

In 1993, the claimants filed a notice of discontinuance, and Crown counsel advised that the details of a confidential agreement between the parties constituted a full and final settlement of the claim. The Tribunal therefore closed its inquiry into the matter without making any findings or recommendations. Its report on the matter, signed by Chief Judge Eddie Durie, was issued on 8 March 1993.

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 under article 2 of the Treaty by permitting the Bay of Plenty Electric Power Board and the Rotorua Area Electricity Authority to erect the Aniwhenua and Wheao Dams on the Rangitaiki and Wheao Rivers.

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. The Rotorua Daily Post reported that:

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.

‘One of the greatest tragedies of the diversion of the Rangitaiki and the Wheao “blowout”’, the Tribunal wrote, 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.

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.

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.

The Ngawha Geothermal Resource Report 1993 was the first Tribunal report concerned with a geothermal resource. The claim, by the trustees of the Parahirahi C1 Maori reservation and the hapu of Ngawha, was filed in response to a joint-venture application by the Bay of Islands Electric Power Board and the Taitokerau Maori Trust Board to use the Ngawha geothermal resource for electricity generation. The claimants feared such development may harm their taonga, the hot springs and pools at Ngawha.

The Springs, indeed the entire underground geothermal resource is a taonga to us. You have heard of its miraculous healing powers and I can confirm in my long experience as Kaitiaki of that taonga that everything that these Kaumatua have told you is the truth. I believe that its healing powers, God-given, are sourced deep within in our Mother Earth. Any interference in that spiritual source is a desecration of our taonga.

Kereama Rankin

Our ancestors [knew] that the heart of Ngawha is underground. They are channels of hot water flowing underground. They knew and believed that it was one taonga, underground and up on the surface of the ground. It has been said the hot pools represent the eye of the taonga. But its heart is in, is within the depths of Mother Earth. If we abuse the very heart the pain will affect the heart, the eyes. It is all one treasure.

Ngatihaua Witehiri

The two main components of the grievance were the acquisition by the Crown of the land and hot springs and the provisions of the Geothermal Act 1953 and the Resource Management Act 1991, which were claimed to be inconsistent with the rights of the claimants under the Treaty of Waitangi.

The Tribunal constituted to hear the claim comprised Professor Gordon Orr (presiding), Sir Hugh Kawharu, Joanne Morris, and William Taylor. The first hearing of the claim took place at Kotahitanga Marae, Kaikohe, in October 1992. The second hearing was held in December, and in January 1993 the Tribunal heard final submissions.

The Tribunal found that the claimants retained ownership and rangatiratanga over the Ngawha hot springs on the one acre vested in the trustees of the Parahirahi C1 Māori reservation. They were also entitled to the return of four acres vested in the Crown as a recreation reserve, since they were an integral part of the springs and were acquired in breach of article 2 of the Treaty of Waitangi.

After a full inquiry, there was no doubt in the Tribunal’s mind that the Ngawha springs had always been a highly valued taonga of the Ngapuhi people, and the Treaty guaranteed to Māori the Crown’s protection of their taonga. The Tribunal recommended that the Crown amend the Resource Management Act 1991 to provide that ‘all persons exercising functions and powers under it, in relation to management the use, development and protection of natural and physical resources, shall act in a manner that is consistent with the principles of the Treaty of Waitangi’.

In November 1992, the Tribunal hearing the Ngawha geothermal resource claims acceded to an application by certain Te Arawa claimants to accord urgency to their claims, which concerned their interest in a geothermal resource in the Rotorua district. The application was granted because of a concern that any findings and recommendations of the Tribunal on the Ngawha claim could impact directly or indirectly on this and other geothermal resource claims. In addition, in early July 1993 the Bay of Plenty Regional Council was due to publicly notify its proposed regional plan for the Rotorua geothermal field, and it was considered desirable that the Tribunal issue its report before that occurred. The hearings were thus held between February and April of 1993.

Given all the information we have had yesterday and this morning I believe we have argued we own the resource, we owned it from the dawn of time … and nowhere along the line of ancestral descent were our rights alienated or given away; nowhere, anywhere did anyone come and take it … anyone who can claim ownership should do what we have done … and we would like to see their whakapapa, their genealogy … the way they have lived on the land; and if they conquered, when and how, and sing waiatas that are appropriate to those incidents …
—Joseph Malcolm

The Tribunal found that the Arawa people assert an undisputed mana whenua over all the lands represented in the claims:

In the claims before us, the respective claimants have rangatiratanga over hot pools and springs which, in each case, are a highly valued taonga over which they exercise kaitiakitanga, and which they wish to preserve.

Because of time constraints, the Tribunal of Professor Gordon Orr (presiding), Sir Hugh Kawharu, Joanne Morris, and William Taylor issued this preliminary report in June 1993. It was confined to the claimants' interest in surface manifestations of the geothermal resource and the impact of the Resource Management Act 1991 on their Treaty rights to their geothermal taonga. The Tribunal reiterated a recommendation it had made in the Ngawha Geothermal Resource Report that the Resource Management Act be amended to take account of the Treaty of Waitangi. The Tribunal further recommended that a moratorium be imposed on the granting of resource consents, the notification or making of regional plans, and the imposition of royalties or rentals in relation to geothermal fields or resources which were the subject of Treaty claims, until such time as those claims were determined. The Tribunal also recommended that the Crown and claimants discuss the matter of royalties and resource rentals generally, and it left the way open for the parties to return to the Tribunal for urgent consideration should they fail to reach agreement on those matters.

The Maori Development Corporation Report of 1993 concerned the proposed sale by the Government of its shares in the Maori Development Corporation. This was the first claim of its kind to come before the Tribunal: it was not about the recovery of land or the desecration of something Māori, and there was no taonga that was obviously the subject of the grievance.

At the request of the claimants – Hohepa Waiti for and on behalf of himself and Te Runanganui o Te Ika Whenua Incorporated, Whatarangi Winiata, and others – the Tribunal granted urgency to the hearing of the claim. This was because the process by which the Crown proposed to divest itself of its shares had already been set in motion at the time the claim was made. The Tribunal comprised Judge Heta Hingston (presiding), John Ingram, Joanne Morris, and Hepora Young, and hearings were held in June and September of 1993. Professor Whatarangi Winiata outlined the claim:

There are two major issues in this claim. The first is the fundamental nature of the Crown's investment from the Treaty perspective, and the effect in Treaty terms of the proposed sale, and Crown withdrawal from the investment … The second is the process by which the sale is being effected. Maori economic interests are closely involved and the process should be one which is consistent with these interests. There should be consultation with the tribes, which there has not been … We seek to stop the sale of the Crown's shareholding, and, we urge the restructuring of Maori Development Corporation to perform the serious purpose of development banking for which it was established.

The Tribunal considered that the Maori Development Corporation was created as a Treaty settlement mechanism for the benefit of all Māori and that the Crown's involvement as the principal shareholder was a vital means of achieving Treaty-based objectives:

In light of our view that the MDC is a Treaty settlement mechanism, we also consider that the proposed sale of the Crown's shares would be inconsistent with the Treaty principle … whereby the Crown must act fairly and impartially towards all Māori. This conclusion rests upon our view that the likely outcome of a sale at this time would advantage a few iwi and disadvantage the majority, thereby creating a new prejudice.

In its report, the Tribunal recommended that the Crown immediately transfer five million shares to the Poutama Trust and that, before it sold the rest of its remaining eight million shares, it devise a sale process, in consultation with Māori, to ensure the continued control of the Māori Development Corporation by pan-Māori interests.

The Maori Electoral Option Report concerns the exercise by Māori of the Māori electoral option under section 76 of the Electoral Act 1993, by which Māori may elect whether to register on the Māori roll or the general roll. In 1986, the Royal Commission on the Electoral System had noted that:

Although they were not set up for this purpose, the Māori seats have nevertheless come to be regarded by Māori as an important concession to, and the principal expression of, their constitutional position under the Treaty of Waitangi.

The Crown had provided certain funding and services to Māori to assist them to promote the enrolment of their people and to gain an understanding of the nature and implications of the choice they are required to make. The claim, brought by Hare Wakakaraka Puke on behalf of himself and those iwi and other Māori authorities that attended a Māori electoral option hui at Turangawaewae in January 1994, questioned the adequacy of the funding in terms of the Crown's Treaty of Waitangi obligations. The claim was also supported by the National Māori Congress, the New Zealand Māori Council, and the Māori Women's Welfare League.

Urgency was accorded the hearing of this claim as the two-month period during which Māori were required to exercise their electoral option ran from 15 February to 14 April 1994. The report was released on 14 February 1994.

The Tribunal of Professor Gordon Orr (presiding), Brian Corban, Professor Keith Sorrenson, Makarini Temara, Keita Walker, and Hepora Young found that the present level of funding was substantially less than would be reasonably required to meet the Crown's Treaty obligations to protect Māori citizenship rights:

The right of political representation has now been enhanced by the Electoral Act 1993 and the evidence before us strongly suggests that the present rights are highly prized. The Tribunal considers that … if adequate funding is not provided for both a vigorous kanohi ki te kanohi and a targeted mass media programme to ensure that as many Māori as possible are enrolled and exercise an informed choice then Māori will be seriously prejudiced.

The Crown conveyed its decision to the Tribunal on 1 March 1994, stating that Cabinet had declined to follow the recommendations contained in the report. This decision was made after a consideration of the extent and nature of the Crown's involvement in voter education activities as part of the electoral reform process.

Claim Wai 176 was lodged with the Tribunal in early 1991 by Huirangi Waikerepuru and Graham Latimer. The claimants alleged Treaty breaches by the Crown in its broadcasting policies, and they sought, inter alia, that the Broadcasting Act 1989 and the Radiocommunications Act 1989 be amended to ensure that Maori, their language, and their culture had a secure place in broadcasting in New Zealand.

In its report of 22 July 1994, signed by Chief Judge Eddie Durie, the Tribunal noted that many of the issues raised had been canvassed in earlier reports (the Report on the Te Reo Maori Claim and the Report on Claims Concerning the Allocation of Radio Frequencies) and in the general courts, and accordingly it was to make no further inquiry into the claim.

The Te Maunga Railways Land Report of August 1994 concerned the use of the Public Works Act 1928. The claim, lodged by Michelle Henare and others, was granted urgency because the land involved at Te Maunga, in the Tauranga district, was the subject of a Māori Land Court order. That order revested the land in its former Māori owners, but with the condition that a payment of $70,000, plus GST, be made before it was returned. The claimants sought relief from this condition. Ms Henare put it this way:

I only want to express our concern about these things that have happened to us over a long time. My dad would have liked to have seen us give it our best shot. We felt it unjust that land be taken, pass from us, by Railways. We felt it has always been ours. We should not have to pay the $70,000. It is not the monetary value. It is the cultural tie that we do not want to lose. … My personal view is that the land will always be ours. They may use it as and when. It does not cease to be ours because the Crown has used it.

The land had been taken in 1955 for railways purposes under the Public Works Act 1928 and used for housing employees of the New Zealand Railways Corporation. The Tribunal found no evidence that ‘this transaction, a compulsory taking under the Public Works Act 1928, [could] be construed as a voluntary agreement to sell, on a willing seller basis’:

There was no attempt to explore alternative forms of tenure, such as a lease or licence to occupy, which would have preserved the parent title, and therefore their mana, and the rangatiratanga of the tangata whenua over their lands guaranteed to them in article 2 of the Treaty of Waitangi.

In 1985, the land was considered to be surplus to Railways Corporation requirements. At that time, the Public Works Act 1981 set out the procedures and conditions for disposing of Maori land that had been taken by the Crown for a public work but was no longer required that purpose. The land at Te Maunga was a small block, but the issues raised by the claim involved important principles of the Treaty of Waitangi: the Crown right to make laws and take land in the public interest (kawanatanga), against the guarantees of protection of Māori ownership of lands (rangatiratanga):

There was no concept of compulsory taking in customary Maori tenure systems. … the Crown guaranteed (ka wakarita ka wakaae) to Maori te tino rangatiratanga, the full authority over their lands until such time as they chose to dispose of them at an agreed price. There is in the Treaty, therefore, no assumption of a fictitious willing seller for the purpose of compulsory taking of Maori land by the Crown.

In reaching its conclusions, the Tribunal discussed the values assigned to land:

In the Maori world there are also values attributed to land and identity, ancestry and occupation, over many generations, which can never be translated into monetary terms. This is why Maori land, compulsorily acquired, is not seen by Maori as paid for, or adequately compensated, by a mere sum of money.

The Tribunal referred to the words of Justice Richardson in a 1987 court case, New Zealand Maori Council and Latimer v Attorney-General and Others, that the 'possession of land and the rights to land are not measured simply in terms of economic utility and immediately realisable commercial values'. It also quoted the words of the New Zealand Māori Council:

[Māori land] provides us with a sense of identity, belonging and continuity. It is proof of our continued existence not only as a people, but as the tangata whenua of this country. It is proof of our tribal and kin group ties. Maori land represents turangawaewae. It is proof of our link with the ancestors of our past, and with the generations yet to come. It is an assurance that we shall forever exist as a people, for as long as the land shall last.

The Tribunal of Judge Hingston, Pamela Ringwood, Evelyn Stokes and Makarini Temara concluded that this claim was well founded and recommended that the Crown take all necessary steps to ensure that the Te Maunga Railways land was revested in the former Māori owners without the payment of the $70,000 purchase price required by the Minister of Railways. They also made some more general recommendations for changes to public works legislation and the offer-back procedures to reflect more positively the Treaty principle of the Crown's fiduciary obligation toward Māori. In support, the Tribunal quoted a 1988 statement by the Minister of Lands, the Honourable Peter Tapsell, to the Māori Land Court:

Where the people were required to be divested of land, it is my view that if it is not essential for a Public Work it ought to be returned to them. It is, moreover, my view that the land ought to be returned to them unencumbered. That is it seems to me an injustice to say that we took your land eighty years ago and gave you fifty pounds, and now you can have your land back, provided you pay half a million dollars. That seems to be grossly unjust.