Rapua ngā tuhinga ruku tātari

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.

Ka ngaro te reo, ka ngaro taua, pera i te ngaro o te Moa

If the language be lost, man will be lost, as dead as the moa

There is a great body of Maori history, poetry and song that depends upon the language. If the language dies all of that will die and the culture of hundreds and hundreds of years will ultimately fade into oblivion. It was argued before us that if it is worthwhile to save the Chatham Islands robin, the kakapo parrot or the notornis of Fiordland, is it not at least as worthwhile to save the Maori language?

Wai 11, the te reo Maori claim, was brought by Huirangi Waikerepuru and Nga Kaiwhakapumau i te Reo and concerned the official recognition of the Maori language. The claimants alleged that the Crown had failed to protect the language as required by article 2 of the Treaty of Waitangi and proposed that it be made official for all purposes, enabling its use as of right in Parliament, the courts, Government departments, local authorities, and public bodies.

the claim was simple; its ramifications are not. To do justice to it we have looked at the past, we have looked at the present situation and we have tried to see what lies ahead in the future.

The Waitangi Tribunal

The frustrations of being a Maori language teacher are just the same as those of being a Maori in New Zealand society. The frustrations of being a Maori language teacher are essentially summed up in the feeling that the education system has invited you to be a mourner at the tangihanga of your culture, your language, and yourself …

Maika Marks

Some New Zealanders may say that the loss of Maori language is unimportant. The claimants have in reply reminded us that the Maori culture is a part of the heritage of New Zealand and that the Maori language is at the heart of that culture. If the language dies the culture will die, and something quite unique will have been lost to the world.

The Waitangi Tribunal

The Tribunal constituted to hear the claim was comprised of Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC. Hearings were held in June, October, and November of 1985, and the Tribunal presented its report to the Minister of Maori Affairs and the claimants on 29 April 1986.

an understanding of Maori language and culture was necessary not only to develop the full personal development of Maori children but also to assist the Pakeha to fully appreciate the history, achievements and character of Maori society.

The Waitangi Tribunal

The Tribunal recommended that:

• legislation be introduced enabling any person who wishes to do so to use the Maori language in all courts of law and in any dealings with Government departments, local authorities and other public bodies;
• a supervising body be established by statute to supervise and foster the use of the Maori language;
• an inquiry be instituted into the way Maori children are educated to ensure that all children who wish to learn Maori be able to do so from an early age and with financial support from the State;
• broadcasting policy be formulated in regard to the obligation of the Crown to recognise and protect the Maori language;
• and amendments be made to make provision for bilinguism in Maori and in English as a prerequisite for any positions of employment deemed necessary by the State Services Commission.

The Tribunal did not recommend that te reo Maori be a compulsory subject in schools, nor that all official documents be published in both English and Maori at that time, ‘for we think it more profitable to promote the language than to impose it’.

When the question for decision is whether te reo Maori is a ‘taonga’ which the Crown is obliged to recognise we conclude that there can be only one answer. It is plain that the language is an essential part of the culture and must be regarded as ‘a valued possession’. The claim itself illustrates that fact, and the wide representation from all corners of Maoridom in support of it underlines and emphasises the point. …

We question whether the principles and broad objectives of the Treaty can ever be achieved if there is not a recognised place for the language of one of the partners to the Treaty. In the Maori perspective the place of the language in the life of the nation is indicative of the place of the people.

The Waitangi Tribunal

In 1987, te reo Maori was made an official language of New Zealand and Te Taura Whiri i te Reo Maori (the Maori Language Commission) was established to promote the language.

‘We are frankly appalled by the events of the past and by the effect that they have had on the Manukau tribes.’

The Waitangi Tribunal

‘The Manukau not only belongs to us, but we to it. We are a people begotton from within the depths of its waters.’

Carmen Kirkwood

‘The Maori New Zealander points out, with justification, that at a time when his people outnumbered the European by over one hundred to one he agreed to allow the European to live and settle in New Zealand on terms and conditions solely agreed to in writing by both parties. He says that he has kept his side of the bargain throughout its existence.

‘The Manukau claim throws into relief the way in which it is said that the European New Zealander has failed to live up to his obligations.’

The Waitangi Tribunal

Claim Wai 8, the Manukau claim, was brought by Nganeko Minhinnick for and on behalf of all the hapu of Waikato–Tainui and concerned the Manukau Harbour and its environs.

The claim alleged that, by failing to protect the Waikato–Tainui hapu in the use, ownership, and enjoyment of their lands and fisheries, the Crown had not met its Treaty responsibilities. And, further, that Crown policies in regard to discharges and water rights had caused ‘a serious and continuing deterioration in the quality and quantity of seafoods available to the Waikato–Tainui hapu’. The claim sought recommendations that the bed of the Manukau Harbour and the control of its waters be revested in the hapu; that a moratorium be imposed with respect to the granting of water rights affecting the harbour until such time as the ancestral and Treaty rights of the hapu had been investigated and protected; and that the Water and Soil Conservation Act 1967 be repealed and replaced by legislation that acknowledged, protected, and enhanced the rights of Maori people with respect to water and soil conservation matters.

‘In the Maori perspective, the Europeans are regarded as foolish or ignorant by some, and by others as simply “unschooled”. They fish anywhere at any time, make loud noises in the harbour, urinate and drop food in the water, gut fish in the sea or open shellfish on the shore, trample the shellfish beds or raid the sea to line their own pockets (without a thought for those who “own” and rely upon it). Worse, they treat a great food garden as a garbage can for unwanted waste.’

The Waitangi Tribunal

The Tribunal constituted to hear the claim comprised Chief Judge Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC. Hearings were held in July, August, and November of 1984, and the Tribunal released its report in July 1985.

At the time that it inquired into the claim, the Tribunal’s jurisdiction extended only to events that occurred since 1975. And thus, while it outlined the Manukau tribes’ historical grievances – which began with land confiscations in the 1860s – the Tribunal could make no findings or recommendations on those matters. However, it did comment that:

‘The claim in respect of current concerns cannot be severed from the earlier events of the past. From their one time extensive lands, forests, estates and fisheries all that is left to the claimants is a few pockets of land, a severely restricted ability to enjoy traditional fisheries, and a legacy of their denigration as a people. If that which is left to them cannot be protected for their benefit, not as a consequence of a recent environmental awareness, but through a substantive recognition of their status as the indigenous people, then the pattern of the past, the plundering of the tribes for the common good, will simply be affirmed and continued.’

In regard to the events over which it did have jurisdiction, the Tribunal considered that the claim was well founded, in that the omission of the Crown to provide protection to the Waikato–Tainui tribes’ use, ownership, and enjoyment of their lands and fisheries was contrary to the principles of the Treaty of Waitangi:

‘The act of omission began last century with policies that led to war and the confiscation of tribal territories. It was continued in this century by a failure to give adequate protection to or recognition of Maori rights in the acquisition of lands or the proposal of major works. It is reflected after 1975, from whence our jurisdiction begins, in an omission to recognise or give appropriate priority to Maori interests in laws and policies and in planning in a number of statutory jurisdictions.’

The Tribunal made a number of recommendations, among them that better policies and laws be formulated to honour the fishing guarantees of the Treaty; that the Whatapaka and Pukaki–Oruarangi inlets be reserved for the exclusive use of the hapu of local marae; and that a comprehensive study on the effects of commercial fishing in the Manukau Harbour and the lower Waikato River be undertaken.

‘Basically the claim is about the despoliation of the Manukau Harbour and the loss of certain surrounding lands of the Manukau tribes. More potently underlying this claim is an enormous sense of grievance, injustice and outrage that continues to haunt the Manukau Maori and bedevil the prospect of harmony in greater Auckland.

‘… the pattern of unjust treatment continues still, and unless arrested, will yet continue until nothing is left but a deeply embittered people and the shreds of a worthless treaty.’

The Waitangi Tribunal

For almost 20 years since 1966, Motiti Island had operated without an operative district scheme, and the people there had largely managed their own affairs. In 1984, however, the Local Government Commission notified a plan to include Motiti Island within the Tauranga County for local government purposes. The Motiti Advisory Committee subsequently made a claim to the Waitangi Tribunal seeking help in persuading the Local Government Commission to set aside its scheme.

In its report of 21 May 1985, the Tribunal of Chief Judge Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC found that the islanders’ claim was not a claim within section 6 of the Treaty of Waitangi Act 1975 and that the Tribunal could not consider the relief sought in it. It declined to inquire further into the claim as filed, though without prejudice to the claimants’ right to file a reformulated claim if they so wished.