Rapua ngā tuhinga ruku tātari

In 1979, the secretary of the Te Tii (Waitangi) B3 Trust asked the Waitangi Tribunal to make representations in connection with the imposition of land tax on land administered by trustees under section 438 of the Māori Affairs Act 1953.

Four months later, the claimants advised the Tribunal that they wished to withdraw their claim, reasoning that section 6(1) of the Treaty of Waitangi Act 1975 was negated and overridden by section 6(6) and that it was fruitless for any Māori to make representations to the Waitangi Tribunal.

In its report of 20 February 1990, the Tribunal stated that it would not be inquiring further into the claim. The Tribunal commented that it was regrettable that the claimants saw section 6(6) as preventing the Tribunal from adequately considering their grievance and noted that the claimants’ right to file a fresh claim in relation to the same subject matter was not prejudiced. The report was signed by Deputy Chief Judge Ashley McHugh.

In 1987, the Waitangi Tribunal received an application from a Mr P H E Bloomer, acting as agent for Matiu Love and James Mark, asking for an inquiry into ‘whether or not the Waikawa block would be returned to Maori descendants of original owners’. The claim was brought because the claimants feared that the land was about to be transferred to the new Land Corporation, a State-owned enterprise established under the State-owned Enterprises Act 1986.

In July 1987, Mr Bloomer wrote to the Tribunal indicating that he had received a letter from the Prime Minister stating that the Waikawa block would be retained by the Crown and that normal procedures as to lands no longer required by the Crown would be instituted.

Subsequently, Mr Bloomer formally withdrew the claim in June 1988 after the Honourable Peter Tapsell agreed in principle to arrange for the return of the land to Matiu Love and his associated relatives. The Tribunal’s report on the matter, signed by Deputy Chief Judge Ashley McHugh, was issued on 27 June 1989.

Claim Wai 17, the Mangonui sewerage claim, was brought on 30 March 1987 by MacCully Matiu on behalf of the Ngati Kahu Trust Board. The claimants objected to the Mangonui County Council’s East Coast sewerage scheme, which involved the siting of a sewage treatment plant at Taipa and the construction of oxidation ponds beside a creek that flowed into the Taipa River. Because there was some urgency attached to the development of the scheme, the Tribunal considered this issue separately from Ngati Kahu's wider lands and fisheries claims.

The Tribunal constitued to hear the claim comprised Eddie Durie (presiding), Bishop Manuhuia Bennett, Monita Delamere, Georgina Te Heuheu, and Professor Keith Sorrenson. Hearings were held in October 1986 and April 1987, and the Tribunal delivered its report to the Minister of Māori Affairs and the claimants in August 1998.

The Tribunal found that the construction of any sewage works necessarily imposed certain costs, both financial and cultural, on the local community. Ngati Kahu had good cause to bring their claim and reason to feel aggrieved but the cost to the community, of which they formed part, would be too great in this instance if the claim was allowed. The Tribunal therefore made no recommendations in its support.

There are times when Maori interests must take priority, according to the Treaty's terms, for the solemn guarantees in the Treaty were a small price to pay for the cession of sovereignty and Pakeha settlement rights that cannot now be denied. But there are times to recall that our forebears agreed to no less than a Pakeha settlement, and a world of our own where two peoples could belong. This claim is a salient reminder that if the cultures of our founding inheritance are both to stand proud, a compromise is sometimes required.

The Waitangi Tribunal

Truth springs out of the earth
and righteousness looks down from Heaven

Psalm 85, verse 11

The Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim was released in June 1988. It dealt with various alleged failings of the Crown to meet its obligations under the Treaty of Waitangi in regards to the fishing rights of the Muriwhenua tribes of the Far North. The Tribunal reported its findings in the hope that it would assist the Crown and Muriwhenua Māori in the negotiations that both were then engaged in.

It was a solemn pledge, in the Treaty of Waitangi, that the Crown guaranteed to Māori the full, exclusive and undisturbed possession of their lands, estates, forests, fisheries and other properties for so long as they might wish and desire to retain the same in their possession. The principle was that despite settlement, Māori would not be relieved of their properties without some further agreement. It was a high ideal when pitted against the certainty of European settlement at the time, but sensible, necessary and proper all the same. The principle survives in the international instruments to which most modern states adhere, that all peoples have the right to retain their properties for so long as they like, and to develop them along either or both customary or modern lines.

The Waitangi Tribunal

Seven hearings were held between December 1986 and April 1988 before the Tribunal of Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, Sir Monita Delamere, Georgina Te Heuheu, Professor Keith Sorrenson, and Bill Wilson.

The Tribunal found that the Crown had failed to meet its Treaty obligations – ‘it is all too clear that over the years numerous blatant and serious breaches have occurred of the Treaty guarantee’ – and that the Muriwhenua tribes had lost a viable fishing industry. It also found that the quota management system, as then applied, was in fundamental conflict with the Treaty’s principles and terms because it apportioned to non-Māori ‘the full, exclusive and undisturbed possession of the property in fishing that to Māori was guaranteed’. The Tribunal considered, however, that the system did not have to be in conflict with the Treaty and could instead be beneficial to both parties, if an agreement or arrangement could be reached.

The Treaty is on trial. It is an historic development that Government has arranged a working party of Crown and Māori representatives to negotiate fishing terms. Such a move was contemplated by the Treaty but has not been tried before. It comes now at a time when the parties are not so much free to seek change as compelled to that course. Now, after a century of debate, extreme positions have become entrenched and there is a weight of prejudice on both sides to overcome. The question is whether the spirit of the Treaty can still be found.

It is not a question of compromise but of recognising the contribution that both Treaty parties can make to building a unified whole. The spirit of the Treaty as found in statements in the British Houses of Commons and Lords, well over a century ago, is not dead. It has simply found a new home in the universal and regional instruments of the international community.

The Waitangi Tribunal

The Tribunal had been asked to defer making any recommendations while the negotiations between the parties were progressing, but it did recommend that the Crown meet the claimants’ reasonable costs.

Claim Wai 9, the Orakei claim, was filed in February 1984 by Joe Hawke and 12 others on behalf of Ngati Whatua and concerned the Orakei block in Auckland.

The Tribunal constituted to hear the claim comprised Chief Judge Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC, and hearings were held in May and July 1985. However, a Bill was then before Parliament that proposed extending the Tribunal’s jurisdiction to cover events dating back to 1840, and the case was adjourned at the claimants’ request to await the outcome of the Bill.

Following the enactment of the Treaty of Waitangi Amendment Act in 1986, the claimants formally abandoned their old claim and filed another in April of that year. The claimants then alleged that, by the actions of the Crown, Ngati Whatua of Orakei were wrongly deprived of the 700-acre Orakei block. They claimed that the block ought to have been reserved for them as a whole in tribal ownership and control, in accordance with their customs, and they claimed to have been prejudicially affected by the loss of their land.

The Tribunal reconstituted to hear this new claim comprised Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, Sir Monita Delamere, Professor Gordon Orr, Professor Keith Sorrenson, and Georgina Te Heuheu. A hearing was held in November 1986, and the Tribunal released its report a year later, in November 1987.

‘These recommendations we make that the Crown may yet support its Treaty commitment to Ngati Whatua. For a tribe that initiated and aided substantially the establishment of Auckland on its land, that stood by the Crown in moments of great crises, that held fast to law and order despite every vicissitude put upon it, and which suffered the most dreadful consequences and then through no fault of its own – and great fault on the part of others – what we recommend is small recompense indeed. Yet it would be a major step to implementing the principles of the Treaty, that the tribal right long denied should now be re-affirmed in a realistic way and that the Crown should move in no unstinting manner to promote the re-establishment of the tribe it displaced.’

The Waitangi Tribunal

The Waitangi Tribunal found that the Crown had breached the Treaty of Waitangi when it purchased the Orakei block and that the block should have been kept as a reserve in tribal ownership. The Crown had also failed to protect the rights and property of the hapu, in breach of its Treaty obligations. The Tribunal recommended that Okahu Park and the headlands of Bastion Point be returned to Ngati Whatua to be used as public parks and that the Orakei marae and the Okahu church and urupa be returned to Ngati Whatua.

‘Ngati Whatua of Orakei may have little land left, but it is the only tribe in New Zealand to own all that it has in the customary way.’

The Waitangi Tribunal

Claim Wai 10, the Waiheke Island claim, was brought by Hariata Gordon for Ngati Paoa on 8 March 1985. The claim concerned the disposal, by the Board of Māori Affairs, of lands comprising the Waiheke development scheme to the Waiheke Station Evans Partnership, when it ought, the claimants said, to have passed the land to the Ngati Paoa tribe. The scheme comprised some 2050 acres at Onetangi to the north-east of Waiheke Island.

The claimants alleged that, by overlooking them when the board disposed of the Waiheke scheme, the policies of the Crown failed to support the tribal groups that were parties to the Treaty of Waitangi and, in particular, those tribes like Ngati Paoa now rendered almost landless. The claimants sought a recommendation that the lease of the land to the Evans partnership be declared null and void and that the board negotiate with the tribe to establish a Ngati Paoa trust upon the land.

Hariata Gordon said that the people of Ngati Paoa saw in the Waiheke scheme ‘a chance to follow the path other tribal groups were on, and a base from which to they could draw in their young people again and help them to stand tall, as Ngati Paoa, as Māori and as New Zealanders’.

Our entire future as a people, our opportunity to create our own employment, our chance to establish an economic tribal base for the benefit of controlling our own destiny both economically and spiritually, has been affected.

Te Tii Kaaho Andrews

The Tribunal constituted to hear the claim comprised Eddie Durie (presiding), Ned Nathan, and Marcus Poole. A hearing was held in September 1985 and the Tribunal presented its report to the Minister of Māori Affairs and the claimants on 2 June 1987.

There is little Crown land left in the Ngati Paoa territory, not already committed to an existing public need, with which to make amends. The Waiheke Scheme, however, was excess to the Crown’s requirements it having been said that it could readily be sold as surplus Crown land. Thus, there was an opportunity to reaffirm in a modern way the Treaty with Ngati Paoa, the Treaty on which Ngati Paoa had relied in a time of great stress to ensure its own survival. I hold to the view that the omission to seek a land base for Ngati Paoa, when the opportunity presented itself, and although a substantial gift of equity would have been involved, was contrary to the principles of the Treaty having regard to Ngati Paoa’s landless state.

Eddie Durie

The members of the Tribunal followed different lines of reasoning but came to a common conclusion. They recommended that the Crown negotiate with the Board of Maori Affairs, the Waiheke Station Evans Partnership, and the Ngati Paoa Development Trust with a view to release the Waiheke Station to a Ngati Paoa tribal trust, or failing that agreement, that the Crown seek for Ngati Paoa some other endowment that involved a land base within its ancestral territory.

Because the claim was filed by the claimants before the jurisdiction of the Tribunal was extended back to 1840, it was beyond the Tribunal’s authority to review the Government transactions of the 1840s which acquired nearly all the Ngati Paoa lands around Auckland, other than to provide a background to the Ngati Paoa people.

I realise that the Board of Māori Affairs is not expected to re-establish Ngati Paoa as a tribe, but because of their past history and the suffering endured for 150–200 years, it would be worthwhile to find relief for this particular tribe. History informs us of their suffering.

Ned Nathan

In September 1984, the Tribunal received a claim from Tom Te Weehi and Reremoana Hauraki. They claimed that the Fisheries Act 1983 and regulation 8(b) of the Fisheries (Amateur Fishing) Regulations 1983 were contrary to the principles of the Treaty of Waitangi in restricting them in the exercise of fishing rights. They claimed to be prejudicially affected, as was evidenced by their prosecution for an alleged breach of the statute and regulations referred to (namely, possessing undersized paua).

In June 1985, the Tribunal of Chief Judge Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC delivered its unanimous determination that it was ‘quite unwilling to deal with any matter that is still before the Courts lest in any way we embarrass the course of proceedings in the Courts’.

Mr Te Weehi was subsequently convicted in the District Court but successfully appealed the conviction to the High Court. Leave to withdraw the claim to the Waitangi Tribunal was granted, and the Tribunal issued its report on the matter on 6 May 1987.

In March 1986, the Auckland District Māori Council lodged a complaint against the Auckland Regional Authority concerning the lack of Māori representation on the authority. In November, owing to the creation of two seats to represent Māori interests in the authority and the growing list of cases before the Waitangi Tribunal, the council resolved to withdraw its complaint. The Tribunal’s report on the matter, signed by Chief Judge Eddie Durie, was issued on 8 April 1987.

At the start of the Tribunal’s inquiry into Wai 22, the Muriwhenua claim on the lands and fisheries of the Muriwhenua tribes of the Far North, senior counsel for the claimants, Mr W D Baragwanath QC, made submissions concerning the State-Owned Enterprises Bill 1986. Mr Baragwanath argued that that the relief sought by the claimants would likely be prejudiced by the enactment of the Bill because land held by the Crown would be transferred to new State-owned corporations and thus cease to be available for Treaty settlements. These submissions were not disputed by counsel acting for various Government departments.

Because the Bill was due for its third reading, the Tribunal, consisting of Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, Sir Monita Delamere, Professor Keith Sorrenson, Georgina Te Heuheu, and Bill Wilson, considered the issue warranted the immediate release of an interim report.

In the report, the Tribunal found that the claimants were likely to be prejudicially affected by the Bill and recommended that, while the Muriwhenua inquiry was still current, the Crown should decline to transfer lands within the traditional territories of the iwi involved to any State-owned corporations.

The policy proposed in the State-Owned Enterprises Bill involves a transfer of Crown land to the Forestry Corporation, the Land Corporation, and other corporations. It will then cease to be Crown land. Although it appears Ministers will retain a power of direction to the proposed corporations, that power, it seems to us, is likely to be limited and insufficiently wide to enable the return of Crown land pursuant to a recommendation of this Tribunal, or might otherwise involve claimants in an additional adversary. Nor, it seems, would the Bill necessarily prevent the alienation of lands that did not provide reasonable economic return.

The Waitangi Tribunal

On 18 December 1984, Mr H T Karaitiana of Waitahanui, Taupo, sought the ‘intervention’ of the Tribunal on ‘proposed law changes in regards to the taking of freshwater whitebait, or inanga, by the Tuwharetoa Maori from Lake Taupo’. To assist Mr Karaitiana, some preliminary research was undertaken in January 1985, and a report of that research was sent to him.

After two years, Mr Karaitiana had still not responded to any of the matters raised in the report, so the claim was treated as lapsed. The Tribunal's report on the matter, signed by Chief Judge Eddie Durie, was issued on 15 October 1986.