Rapua ngā tuhinga ruku tātari

The Waitangi Tribunal’s three-volume Te Kāhui Maunga: The National Park District Inquiry Report covers 41 claims spanning the area of Tongariro National Park and selected lands surrounding the park. The Tribunal refers to the people whose claims it heard as ngā iwi o te kāhui maunga. This name acknowledges their close whakapapa ties to one another and to the chiefly cluster of mountains: te kāhui maunga, which include Tongariro, Ngāuruhoe, Ruapehu, Pīhanga, Hauhungatahi, and Kakaramea and which dominate the inquiry’s landscape.

The Tribunal panel for the inquiry was made up of Waitangi Tribunal chairperson Chief Judge Wilson Isaac, the Honourable Sir Douglas Kidd, Professor Sir Hirini Mead, and Dr Monty Soutar. The panel convened 10 hearings between February 2006 and July 2007.

The claims of nga iwi o te kāhui maunga concerned two issues above all: the establishment and management of Tongariro National Park and the creation and operation of the Tongariro power development scheme. In his letter of transmittal that accompanied the final report, released on 12 November 2013, Chief Judge Isaac said that ‘Both of these matters are of national importance and are at the heart of the inquiry’.

The Tribunal found that it was a myth that Horonuku Te Heuheu made a noble gift to the Crown of the peaks of Tongariro, Ngāuruhoe, and Ruapehu. Rather, it found that Ngāti Tūwharetoa made a tuku of their sacred mountains, inviting the Crown to share their taonga as joint owners and trustees. Ngāti Tūwharetoa wanted to work with the Crown, to protect the mountains forever.

The Tribunal found that the Crown did not honour the partnership intended by Horonuku Te Heuheu. Instead, it took the title to the mountains for itself, and established the national park without properly consulting ngā iwi o te kāhui maunga. The Tribunal found that the Tongariro National Park Act 1894 as a whole failed to meet the legitimate expectations of Ngāti Tūwharetoa and was a clear breach of Treaty principles.

The Crown gave no recognition to the interests of Whanganui iwi. The Tribunal found that the Crown ‘effectively confiscated’ lands in which Whanganui and Ngāti Rangi had interests, which included sacred places such as Te Waiamoe – the crater lake on Mount Ruapehu – and Te Ara-ki-Paretetaitonga – the main peak of Mount Ruapehu.

For more than a century now, the Crown has not enabled ngā iwi o te kāhui maunga to exercise their rangatiratanga – their authority – over the park.

The Tribunal found that these actions of the Crown have breached the Treaty principles of reciprocity and good faith and the Crown’s duty of active protection.

The Tribunal recommended that the Crown honour its Treaty obligations and restore the partnership intended by the 1887 tuku by making a new partnership arrangement for the national park. Under this partnership arrangement, Tongariro National Park would be made inalienable, removed from Crown ownership, and taken out of the control of the Department of Conservation. The park would then be held jointly by the Crown and by ngā iwi o te kāhui maunga under a new Act and in a new title. The park would also be managed jointly by a statutory authority comprising representatives from the Crown and ngā iwi o te kāhui maunga.

The second matter at the heart of the claims before the Tribunal was the Tongariro power development scheme, which diverts water from the Whanganui and Tongariro River systems into Lake Rotoaira and releases it downstream to generate electricity.

The Tribunal found that the waterways diverted by the scheme are taonga of great importance to ngā iwi o te kāhui maunga, which never knowingly and willingly gave up possession and control of their waterways. The Tribunal found that the iwi retain development rights in those waterways and that they are entitled to compensation for the past and present use of their taonga to generate electricity, particularly in the case of Lake Rotoaira.

When the Crown set up the Tongariro power development scheme, it met only with Ngāti Tūwharetoa. It did not consult the trustees who administer Lake Rotoaira (which is critical to the scheme) or Whanganui iwi. Because of these failures to consult, the Tribunal found that the Crown did not act honourably, fairly, or reasonably when it established the scheme.

The Tongariro power development scheme has meant losses in water quality, habitat, and kai. Lake Rotoaira, which is a significant taonga of ngā iwi o te kahui maunga, has suffered irreversible damage. Yet, the Crown did not compensate the lake’s owners for the use of their lake for storage or for the impacts of the scheme.

The Tribunal made particular findings about the Crown’s 1972 agreement with the trustees of Lake Rotoaira. Under that agreement, Māori retained title to the lake bed, but the owners had to surrender control of the lake for electricity generation, without compensation. The Tribunal considered that Ngāti Tūwharetoa signed this deed because the Crown both kept them in the dark about the true environmental effects of the Tongariro power development scheme on their lake and fuelled fears that it would take the lake. The Tribunal found that the Crown breached the principle of partnership and considered that it would be unconscionable for the Crown now to refuse to put aside the deed. The Tribunal also proposed a package of measures under which the Crown, local government, and ngā iwi o te kahui maunga might manage waterways together.

The Tribunal’s extensive report covered many other issues, including Crown laws and practices regarding the alienation of land, the operation of the Native Land Court, public works takings, land development, customary fisheries, waterways, and the geothermal resource.

The urgent inquiry was triggered by the publication in 2011 of the report of the Early Childhood Education Taskforce, which, the claimants said, had not been consulted with them and had seriously damaged their reputation. The report, and Government policy development based on it, would cause irreparable harm to the kōhanga reo movement. The Tribunal endorsed the conclusion of the Wai 262 Tribunal’s report, Ko Aotearoa Tēnei, that urgent steps were needed to address recent Crown policy failures if te reo is to survive. The Tribunal noted that survival requires both Treaty partners – Māori and the Crown – to collaborate in taking whatever reasonable steps are required to achieve the shared aim of assuring the long-term health of te reo as a taonga of Māori.

The Ngāti Kahu Remedies Report, released in March 2013, is the outcome of an application for remedies by Ngāti Kahu, a claimant iwi in the Muriwhenua land inquiry (Wai 45). The application, filed in October 2007, asked the Tribunal to use its potentially binding powers requiring the Crown to return a series of properties to them, including former Crown properties now in private ownership. The application was adjourned until March 2010 to enable ongoing settlement negotiations with the Crown but was revived by Ngāti Kahu on 15 July 2011.

The Muriwhenua land inquiry was held between 1990 and 1994. In 1997, the Tribunal released its Muriwhenua Land Report. The Tribunal found the claims of Muriwhenua iwi, including Ngāti Kahu, to be well-founded in relation to acts and omissions of the Crown up to 1865, by which time a significant proportion of land in the region had been alienated. Consequently, the Tribunal’s hearing on the Ngāti Kahu remedies application was restricted to their well-founded claims.

The panel members for the Ngāti Kahu remedies hearing were Judge Stephen Clark (presiding officer), Joanne Morris, Dr Robyn Anderson, and Professor Pou Temara. Hearings were held at Kareponia Marae, Awanui, just north of Kaitaia from 3 to 7 September 2012. Closing submissions of the parties were heard on 18 and 19 September 2012 in Auckland.

The Tribunal found that redress for the wrongful dispossession of 70 per cent of Ngāti Kahu lands by 1865 was long overdue. However, owing to the circumstances of wider Treaty settlement negotiations in the region, the Tribunal concluded that the use of its binding powers was not warranted. A central consideration in arriving at this conclusion was the relationship of the five main iwi of the Muriwhenua region: Ngāti Kahu, Te Rarawa, Te Aupōuri, Ngāi Takoto, and Ngāti Kuri. These iwi, though autonomous in their own right, have common ancestral origins and shared whakapapa, which had been reflected in their approach to the Muriwhenua land inquiry, when the five iwi brought their claims to the Tribunal jointly and prosecuted their claims collectively. The iwi subsequently pursued separate settlements of their claims with the Crown. However, the iwi returned to a more collective approach from 2008 to resolve issues of intertwined and competing claims to Crown-owned land and assets which had prevented any settlement from being reached. Ultimately dissatisfied with what they could achieve through settlement negotiations with the Crown, Ngāti Kahu withdrew from those negotiations and applied to the Tribunal for remedies. In doing so, they risked the settlements that Te Aupōuri, Te Rarawa, and Ngāi Takoto had agreed with the Crown as Ngāti Kahu sought the return of land earmarked for return to these iwi.

‘A well-established Treaty principle has it that the Crown should not, in remedying the grievance of one group, create a fresh grievance for another group’, presiding officer Judge Stephen Clark said in his accompanying letter to the Minister of Māori Affairs.

The Tribunal, instead, made a series of non-binding recommendations to the Crown. If agreed to by the parties, these recommendations would provide for the restoration of the economic and cultural well-being of Ngāti Kahu. These included the return of a number of sites of ancestral importance, including wāhi tapu, and a series of governance arrangements to allow Ngāti Kahu to have a significant say in the administration of other sites, as well as establishing relationships with local bodies and other institutions. Further recommendations included cash payments designed to revitalise the iwi, both culturally and socially, and an opportunity to assume ownership of a range of commercial properties, to assist in re-establishing the commercial base of the iwi.

This stage 1 report concerns a claim about Maori proprietary rights in freshwater bodies and geothermal resources and the Government's plan to sell shares in State-owned enterprises.

Released in September 2012, the Port Nicholson Block Urgency Report is the outcome of an urgent inquiry into Crown actions during and after negotiations to settle the historical claims of Taranaki Whānui ki te Upoko o te Ika (Taranaki Whānui) in the Port Nicholson block.

Claim 2235 was lodged in December 2009 by the trustees of the Port Nicholson Block Settlement Trust (PNBST), the post-settlement governance entity of Taranaki Whānui. In the course of negotiations, Taranaki Whānui agreed to release the Wellington Central Police Station from their proposed settlement package. This enabled the Crown to offer the police station to Ngāti Toa Rangatira (Ngāti Toa) as commercial redress. The claimants alleged that, in return for the release of the police station, the Crown ‘committed itself to recognise and uphold the mana whenua of Taranaki Whanui over the Port Nicholson Block by not offering any other property within the Block to Ngati Toa or any other iwi as commercial or cultural redress’.

The claimants further alleged that, in offering Ngāti Toa a number of items of commercial and cultural redress in the Port Nicholson block, the Crown had broken the undertakings that it gave to Taranaki Whānui to secure the release of the police station. They argued that this constituted a breach of Treaty principles that would become irreversible once the deed of settlement between the Crown and Ngāti Toa was finalised and redress enacted.

The Tribunal constituted to hear the claim comprised Judge Stephen Clark (presiding), the Honourable Sir Douglas Lorimer Kidd, Basil Morrison, and Sir Tamati Reedy. A hearing was held in June 2012 at the Tribunal’s offices in Wellington.

The Tribunal did not uphold the claim of Taranaki Whānui. However, it did find that the Crown, in exchange for the release of the Wellington Central Police Station, gave Taranaki Whānui undertakings not to offer Ngāti Toa any cultural redress and no further commercial redress within the Wellington CBD.

The Tribunal found that the Crown broke those undertakings. The Crown had offered Ngāti Toa a plaque at Parliament as cultural redress and a right of first refusal (RFR) over Crown properties and New Zealand Transport Agency administered properties in Wellington City, potentially including the Wellington CBD, as commercial redress. In so acting, the Crown breached the principles of the Treaty by failing to actively protect the interests of, and to act reasonably and with the utmost good faith towards, Taranaki Whānui.

In relation to the offer of cultural redress, the Tribunal stopped short of making a recommendation since Taranaki Whānui knew before signing their deed of settlement that there was an offer of cultural redress in the Wellington CBD to Ngāti Toa. The offer of a plaque at Parliament had also been withdrawn.

In relation to the offer of commercial redress, the Tribunal made a series of recommendations to the Crown to rectify the situation it had created, namely:

• That it review the offer of RFRs to Ngāti Toa over core Crown properties and New Zealand Transport Agency administered properties in Wellington City.
• That, if necessary, it amend the offer of RFRs to Ngāti Toa, to ensure that no commercial properties were made available via the RFR mechanism to Ngāti Toa within the Wellington CBD. The Tribunal was not concerned about properties located outside the CBD.
• If, as a result of implementing the above two recommendations, the commercial redress package on offer to Ngāti Toa was in any way diminished, the Crown should identify and offer alternative substitute commercial redress for Ngāti Toa.

The Tribunal also pointed to flaws in the Crown’s negotiation processes of the time, including the use of the ‘silo’ approach (whereby communication between different teams of Crown negotiators was minimal) and a lack of clarity in the language that Crown officials used. In the Tribunal’s view, both led to confusion and potentially created new grievances in the Port Nicholson block.