Rapua ngā tuhinga ruku tātari

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.

Claim Wai 55, dealing with Te Whanganui-a-Orotu, or the Napier inner harbour, was lodged with the Tribunal in March 1988 by seven local hapu. It was granted urgency because leasehold sections in the claim area were about to be sold.

The claimants sought a finding that Te Whanganui-a-Orotu was their taonga and that they had never knowingly or willingly relinquished their tino rangatiratanga over it. They wanted the Tribunal to recommend that legislation vesting the title to Te Whanganui-a-Orotu in others be repealed or amended, that all Crown and other public lands in Te Whanganui-a-Orotu be returned, and that compensation be paid for those parts of Te Whanganui-a-Orotu that had passed from the Crown into private ownership.

The Tribunal that heard the claim comprised Bill Wilson (presiding), Bishop Manuhuia Bennett, Sir John Ingram, Mary Boyd, and Georgina Te Heuheu. Six hearings were held between July 1993 and July 1994, and the report was released in July 1995.

The Tribunal found that a number of clear breaches of Treaty principles had occurred, beginning with the Crown's inclusion of Te Whanganui-a-Orotu in the Ahuriri purchase in 1851, and it recommended that there be no further alienations of any Crown or State-owned enterprise land within the pre-1851 boundaries of Te Whanganui-a-Orotu. It also suggested that a substantial fund be set up to compensate for what the Tribunal concluded were irretrievable losses caused to the claimants.

At that stage, however, the Tribunal considered that it was inappropriate for it to make final recommendations on the issue of remedies, and it set aside a week in early November 1995 to hear submissions on that issue. In June 1998, the Tribunal released its report on remedies, which recommended that various lands in the claim area be returned to the claimants and that monetary compensation be paid.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Claim Wai 449 was lodged in 1994 by kiwifruit growers Marata Norman and Wi Parera Te Kani on behalf of themselves, their whanau, and their iwi, and alleged that the Crown had breached the Treaty of Waitangi in regards to the kiwifruit industry and, in particular, to the export of their kiwifruit as the produce of their ancestral lands.

Specifically, the claim challenged the Primary Products Marketing Act 1953 and the Kiwifruit Marketing Regulations 1977, which gave the New Zealand Kiwifruit Marketing Board a monopoly to export kiwifruit to all foreign markets except Australia. The claimants alleged that this monopoly violated their right to exercise te tino rangatiratanga over their own affairs.

The claim was accorded urgency on the ground that, if the claimants' Treaty rights were not determined quickly, then they could have been locked into a regime that could have caused them irreparable economic damage.

The Tribunal constituted to hear the claim comprised Judge Patrick Savage (presiding), the Honourable Dr Michael Bassett, John Kneebone, and Sir John Turei. The evidence and submissions were heard between 24 July and 1 August 1995, and the report was presented to the Minister of Maori Affairs and the claimants three months later, on 6 November.

The central issue in the Tribunal's deliberations was whether the right to export kiwifruit was a taonga with protection under article 2 of the Treaty of Waitangi. The Tribunal concluded that it was not a taonga and that, even if it had been, 'the regulation of export trade is a legitimate exercise of kawanatanga'. The Tribunal thus found that the claim was not well founded:

in pre-contact times the exchange of treasures by iwi and hapu might have been regarded as a taonga. It would, in our view, be an unjustified straining of Treaty principles to hold that the right to develop such a treasure could extend all the way to the modern kiwifruit export trade.

The Tribunal did, however, make some points with regard to consultation, noting that 'there did not seem to be an adequate recognition of Treaty duties by the parties to this claim'.

The Tribunal ended by saying that it was confident that those who had been involved in the claim had learnt much from it and hoped that all who were involved in the kiwifruit industry would try harder to develop the spirit of partnership that was implicit in the Treaty.

The quantification of property loss, personal injury, social impairment, and forfeited development opportunities may assist the consideration of comparative equities between claimant groups, but it is not necessarily determinative of the measures appropriate for relief in any one case today. As we consider further at the end of this report, in resolving historical claims a pay-off for the past, even if that were possible, may not be as important as the strategies required to ensure a better future.
—The Waitangi Tribunal

When The Taranaki Report: Kaupapa Tuatahi was released in 1996, it was hailed by many as one of the Tribunal's most important reports. Indeed, the Minister in Charge of Treaty of Waitangi Negotiations at the time, the Honourable Doug Graham, urged all New Zealanders to read it. The report dealt with 21 claims concerning the Taranaki district and canvassed the land wars and confiscations in the area, as well as the story of Parihaka.

The Tribunal constituted to hear the claims was made up of Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, Emarina Manuel, Professor Gordon Orr, and Professor Keith Sorrenson. Twelve hearings were held between September 1990 and June 1995, and the report was presented to the Minister of Maori Affairs and the claimants on 11 June 1996.

The Taranaki claims could be the largest in the country. There may be no others where as many Treaty breaches had equivalent force and effect over a comparable time. 'For the Taranaki hapu, conflict and struggle have been present since the first European settlement in 1841. There has been continuing expropriation by various means from purchase assertions to confiscation after war. In this context, the war itself is not the main grievance. The pain of war can soften over time. Nor is land the sole concern. The real issue is the relationship between Maori and the Government. It is today, as it has been for 155 years, the central problem.
—The Waitangi Tribunal

The complaints stemmed from land confiscations that took place during the 1860s wars, which began in Taranaki before extending elsewhere. In fact, armed initiatives did not cease in the region for an unparalleled nine years, and the Tribunal commented on the effect that this had on local Maori:

If war is the absence of peace, the war has never ended in Taranaki, because that essential prerequisite for peace among peoples, that each should be able to live with dignity on their own lands, is still absent and the protest over land rights continues to be made.

The confiscations came with an undertaking that the lands necessary for hapu survival would be returned without delay, but the Tribunal found that this promise was not maintained. Instead, many hapu were left with nothing of their own to live on and became squatters on Crown land:

Taranaki Maori were dispossessed of their land, leadership, means of livelihood, personal freedom, and social structure and values. As Maori, they were denied their rights of autonomy, and as British subjects, their civil rights were removed. For decades, they were subjected to sustained attacks on their property and persons.

The Tribunal thus saw disempowerment as the main foundation of the claims:

By ‘disempowerment’, we mean the denigration and destruction of Maori autonomy or self-government. Extensive land loss and debilitating land reform would likely have been contained had Maori autonomy and authority been respected, as the Treaty required. Maori autonomy is pivotal to the Treaty and to the partnership concept it entails.

As Sir William Martin, our first Chief Justice, said, when opposing land confiscation in 1864:

The example of Ireland may satisfy us how little is to be effected towards the quieting of a country by the confiscation of private land … how the claim of the dispossessed owner is remembered from generation to generation and how the brooding sense of wrong breaks out from time to time in fresh disturbance and crime.

The Tribunal considered that an endowment that provided adequately for tribal autonomy in the future was what was important, not payments for individual benefit. While the Tribunal thought that, based on legal principles, some billions of dollars were probably owed for the land, leaving aside exemplary damages or compensation for loss of rents and the devaluation of annuities, it accepted that such a quantum of damages would not be possible and recommended only that generous reparation be made:

the settlement of historical claims is not to pay off for the past, even were that possible, but to take those steps necessary to remove outstanding prejudice and prevent similar prejudice from arising; for the only practical settlement between peoples is one that achieves a reconciliation in fact.

Claim Wai 45 was lodged with the Waitangi Tribunal in December 1987 by the Honourable Matiu Rata and concerned the acquisition of land in the Far North.

The Tribunal constituted to hear the claim comprised Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, Sir Monita Delamere, Joanne Morris, and Professor Evelyn Stokes. Following the death of Sir Monita in April 1993, the Tribunal continued with a quorum of four.

Fifteen hearings were held between August 1990 and June 1994, and in March 1997 the Tribunal released the Muriwhenua Land Report, which covered pre-1865 land transactions. The Tribunal was satisfied that the claims to 1865 were well founded and that the consequences had been such that recommendations for the transfer of substantial assets, to be effected as soon as practicable, would be appropriate. However, it held off making recommendations until the parties had been heard on the issue of remedies.

In all, the Muriwhenua claims are about the acquisition of land under a show of judicial and administrative process. They concern Government programmes instituted to relieve Maori of virtually the whole of their land, with little thought being given to their future wellbeing or to their economic development in a new economy. There is little difference between that and land confiscation in terms of outcome, for in each case the long-term economic results, the disintegration of communities, the loss of status and political autonomy, and despair over the fact of dispossession are much the same.

The Waitangi Tribunal

In 1990, while the inquiry was proceeding, the claimants asked the Tribunal to intervene in the sale of 1183 hectares of Kaimaumau land adjoining Rangaunu Harbour. In a short report, the Report on Kaimaumau Lands, the Tribunal recommended that the Crown take all steps that it reasonably could to retain or recover the land at Kaimaumau about to be sold by the State-owned enterprise Landcorp, and that like measures be taken to prevent the sale of other State enterprise or Crown surplus land in Muriwhenua during the currency of the Muriwhenua inquiry.

This short report sets out the Tribunal’s proposed remedies in regard to the Wai 55 claim about Te Whanganui-a-Orotu, or the Napier inner harbour.

Claim Wai 414 was lodged in January 1994 by Haki Wihongi on behalf of himself and the Te Whanau o Waipareira Trust, of which he was the chairperson. The trust had been established by Te Whanau o Waipareira, a non-tribal Maori community based in west Auckland, in order to provide effective social services and to lead the community's efforts to help itself. The claim alleged that the Crown, through the Community Funding Agency of the Department of Social Welfare, had failed to recognise the special status of Te Whanau o Waipareira as a Maori organisation and had failed to properly consult and deal with it in accordance with the Crown's obligations under article 2 of the Treaty of Waitangi.

The Tribunal constituted to hear the claim was made up of Joanne Morris (presiding), Sir John Ingram, Sir Hugh Kawharu, Pamela Ringwood, and Hepora Young, and it sat five times between August 1991 and April 1995 to hear evidence and submissions.

John Tamihere of the trust described the claim as being:

essentially about fairness, due process and equality of opportunity. It is about our right as a pan-tribal wha-nau in the urban area to be acknowledged as a Treaty partner and our right as urban Maori to organise ourselves in accordance with our own tikanga to address our own problems our way.

Dr Pita Sharples noted that:

Waipareira is the appropriate organisation to administer and deliver services and create responsibility and hope and dreams amongst our people in West Auckland. We are better suited to know our needs and to deal with them than any government organisation. That is what the claim is saying.

The members of Te Whanau o Waipareira were not all linked by kinship, and most lived outside the traditional territories of the tribes from which they were descended. The claim thus broke new ground by contending that a non-tribal group of Maori had rights under the Treaty. According to claimant counsel, at its heart the claim said that ‘the rights and interests of urban Maori, separated from, distanced from and disenfranchised from the home iwi, are rights which fall properly within the Treaty of Waitangi’.

The Te Whanau o Waipareira Report was released in Auckland on 6 July 1998. In it, the Tribunal upheld the trust's claim that Te Whanau o Waipareira was prejudiced by policies and operations of the Community Funding Agency, and it found that, if a Maori community exercised rangatiratanga, then it deserved special recognition in terms of the Treaty:

Rangatiratanga, in this context, is that which is sourced to the reciprocal duties and responsibilities between leaders and their associated Maori community. It is a relationship fundamental to Maori culture and identity and describes a leadership acting not out of self-interest but in a caring and nurturing way with the people close at heart, fully accountable to them and enjoying their support … The principle of rangatiratanga appears to be simply that Maori should control their own tikanga and taonga, including their social and political organisation, and, to the extent practicable and reasonable, fix their own policy and manage their own programmes.

In examining this claim, the Tribunal said that it was important to read all parts of the Treaty together in order to understand it, instead of trying to interpret the separate words and articles of the texts. It rejected the argument that only 'traditional iwi' are the Crown's Treaty partners, saying that the Treaty was for the protection and benefit of all Maori:

The Treaty of Waitangi was signed by rangatira of hapu, on behalf of all Maori people, collectively and individually. Therefore, conversely, protective benefits and rights of autonomy in terms of the Treaty are not limited to traditional tribal communities.

The Tribunal also found that the Treaty partnership made the Crown accountable to Maori for the outcomes of its social and welfare policies. Waipareira's efforts to provide better integrated and coordinated programmes were frustrated by its having to deal with many different Crown agencies, each with its own policies and procedures.

The Tribunal recommended that, in developing and applying policy for the delivery or funding of social services to Maori, the Department of Social Welfare and the Community Funding Agency deal with any Maori community that had demonstrated its capacity to exercise rangatiratanga in welfare matters and that social and welfare services to Maori communities stand as a separate output class designed to promote community development. It also recommended that there be better consultation and a greater devolution of decision-making power and resources to Waipareira in particular and a greater reporting of the outcomes for Maori of the Government's social policies:

We reminded ourselves that the intent of the Treaty was something like a marriage of two nations, two cultures, who wanted to share a house which they planned to build together, accommodating each other's needs with respect and goodwill, for their mutual benefit. …

The success of a marriage depends not on the ability of the parties to formulate or interpret vows advantageously to themselves, nor on their ability to enforce them in the case of dispute. Rather, it depends on their commitment to work through problems in a spirit of goodwill, trust, and generosity, actively seeking creative solutions, and taking opportunities to bolster each other.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wiremu McAuley

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

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

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

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

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

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

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

The Rotorua Daily Post

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

The Waitangi Tribunal

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

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

The Waitangi Tribunal

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

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