Rapua ngā tuhinga ruku tātari

Two days of hearing for the Paraninihi ki Waitotara Incorporation (PKW) claim regarding changes to the dairy industry were held on 12 and 13 November 2001. The Tribunal's report was released before Christmas 2001.

The claim had four separate aspects to it. The Tribunal did not uphold the the first three points of claim. The Tribunal did not agree that the creation of Fonterra would necessarily cause the relative value of PKW's unimproved land to decrease; did not agree that the rental income from PKW's land necessarily would be of less value; and did not agree that the relative cost of exercising the right of first refusal to buy out perpetual leases would necessarily increase.

However, the Tribunal did uphold the fourth point of claim – that the cost of entering the dairy industry has increased – and recommended that the Government should guarantee a loan to enable PKW to purchase shares to supply Fonterra, so that PKW would be able to enter the dairy industry in an equitable manner.

The Tribunal found this was particularly necessary because the Crown had ignored repeated recommendations from various inquiries and commissions since the confiscation of Taranaki land to provide remedies for the problems created by confiscation, and by the subsequent establishment of perpetual leases of returned lands. The Tribunal considered that the failure to provide such remedies created an even more compelling need for the Crown to do so urgently: 'we regard the wilful and repeated turning of the Crown's face from its Treaty obligations and breaches as a further breach in itself'.

The Tribunal considered that the Crown should have at the very least acted immediately on the recommendations of the Tribunal's 1991 Ngai Tahu Report regarding perpetual leasing and the Māori Reserved Land Act 1955:

having ignored the [1975] Sheehan report, the Crown should, at the very least, have given the matter urgent attention and provided a fulsome remedy when the implications of the finding of the ‘Ngai Tahu Report’ were apparent, and had the strong words in the 1987 judgment of the Court of Appeal been taken to heart.

This claim was separated from the large group of Hauraki claims because it dealt with the contemporary issue of the management of the Hauraki Gulf rather than with the historical grievances of the Hauraki people.

The claimants believed that the Crown had established a management regime under the Hauraki Gulf Marine Park Act 2000 that was inconsistent with its duties of active protection of their rangatiratanga and kaitiakitanga. They asserted that their claims to customary title and rights in the foreshore and seabed were prejudiced by this Act.

The Tribunal acknowledged the considerable area of agreement between the claimants and the Crown on the need to enhance preservation and protection of the Hauraki Gulf. There was also agreement that a forum, where tangata whenua and territorial authorities could regularly meet to monitor the development of the park and formulate policy, was a sound idea. The Tribunal accepted that the iwi represented by the Hauraki Māori Trust board are tangata whenua of Tikapa Moana.

‘However the physical boundaries of the park are greater than the rohe of Hauraki iwi represented by the Board, and include other groups who can equally claim to be tangata whenua of the park. As part of its Treaty obligations, the Crown must include those tangata whenua in the Hauraki Gulf Forum, and it has done so.’
The Waitangi Tribunal

The Tribunal did not see any fundamental Treaty breach in the legislation per se. It made no specific findings as it was not convinced that the Hauraki iwi had been prejudiced by the passing of the Hauraki Marine Park Act 2000.

‘We would encourage all parties to focus on what they agree on: the need for the Hauraki Gulf environment to be protected for future generations. This is the spirit and intention of the Act, which provides a framework for all parties to work together towards this common goal.’
The Waitangi Tribunal

The Tribunal did not revisit the general issues surrounding the closure of Napier Hospital. Neither did they consider the merits of restoring Napier Hospital to its former status. That was not a remedy the claimants were seeking.
—Deputy Chief Judge Isaac

The claim required the Tribunal to look at the historical context of hospital services in Napier from 1851 to 1940 and in particular the promise of a hospital to Ahuriri Māori in 1851. The Tribunal found that there was widespread and severe ill health, and the impact of introduced diseases, was a principle cause of the crisis of survival which saw a halving of the national Māori population during the half century after 1840. Ahuriri Māori did not escape, and in the 1930s their health status still lagged far behind that of Pakeha:

Whether the health status of Ahuriri Māori has improved or worsened over the last decade, the disparity in health status between Ahuriri Maori and non-Maori has shown little if any reduction and has remained markedly adverse. For many Ahuriri Maori the health outcomes remain poor. A significant proportion of the ill health suffered by Ahuriri Maori was preventable, and not prevented.

The Tribunal looked at a number of issues that arose during the 1980s and 1990s in its report. These issues included consultation with Ahuriri Māori on decisions affecting the status of Napier Hospital with decisions to regionalise hospital services in Hastings and downgrade or close Napier Hospital. Representation at decision making levels was another issue where the Crown was in breach of the principle of partnership with an imbalance of Māori representation on the Hawke’s Bay Hospital Board. Neither was there sufficient participation by Māori to sustain the Māori Health Unit’s objectives.

The Tribunal recommended a community health centre governed by trustees on behalf of Ahuriri Māori and bicultural in character, serving the special needs of Ahuriri Māori but open to all. It suggested that the centre should function as an integrated care organisation providing a variety of primary, public, promotional, educational, and rongoa Māori services.

The Tribunal recommended that the Crown take early steps to conclude an agreement in principle with the claimants on the concept, and that the Napier Hospital site should be transferred to the Residual Health Management Unit and the proceeds be vested in trust, for the purpose of endowering the community health centre.

   ‘With hindsight, the Moriori claim deserved an early hearing in the Tribunal’s process, for it raised issues at the frontier of our modern government. A just conclusion to recent warfare was an issue squarely before Maori and the Governor when the Treaty of Waitangi was signed, and the issue shed light on a major purpose of the Treaty: to ensure justice for all people.’

    Justice Durie

The raft of issues considered in the Rekohu Report are unique and complex, and a thorough reading of the entire report is necessary to gain a full understanding of the context of the claims and the ensuing recommendations of the Tribunal.

The report looks closely at the period soon after the signing of the Treaty of Waitangi in 1840 and the annexation of Rekohu in 1842. Some of the main findings of the Tribunal’s report are that:

The Native Land Court adopted criteria set by the Crown that were inadequate in Treaty terms when it excluded Moriori from ownership of any but the main island, and in that case awarding 97 per cent of the land to Ngati Mutunga and only 3 per cent to Moriori. The Tribunal considered the awards were patently wrong and that Moriori were entitled to at least 50 per cent.

The ancestral right to land was with Moriori. Maori were recent invaders.

The Tribunal did not accept the Crown’s argument that Maori agreed to land tenure reform proposing individual ownership, individual share trading, or Native Land Court control of title devolution and succession.

The Tribunal recommended that compensation is due to Ngati Mutunga for the lasting impact of the Crown’s policy on tenure reform.

The Tribunal has proposed a new indigenous land law for Rekohu which would be the modern equivalent for the customary ethic with land titles held in trust by a runanga (formed along traditional lines) which allocated long-term occupation rights. The Runanga would provide facilities for visiting relatives out of the rents among other things. The Tribunal recommends that the Crown fund a body to promote the development of a new Maori land law specific to the Chathams.

The issue of slavery as a result of the invasion of Rekohu by Ngati Tama and Ngati Mutunga in 1835 was an issue ended in the mainland of New Zealand by 1839. This was not so in Rekohu where it continued for 20 years after annexation without Crown intervention. The Tribunal found that the failure of the Crown to intervene cost Moriori many lives, and prejudiced later land claims

The Tribunal in the Chatham Islands inquiry was also asked to look at a number of contemporary issues including the Tribunal's jurisdiction, the status of Moriori and their right to make claims under the Treaty of Waitangi, health and education, conservation management, fishing, and the ownership of Te Whaanga lagoon.

    ‘The scientific evidence is compelling: Moriori are the same people as Maori but, through isolation, they are unique as a Maori tribe.’

    Waitangi Tribunal

The Ngāti Maniapoto/Ngāti Tama Cross-Claims Settlement Report (2001) is a report on two Ngāti Maniapoto claims (Wai 788 and Wai 800) about the proposed settlement of Ngāti Tama’s historical Treaty claims relating to Taranaki. An urgent hearing to consider these claims was held in Wellington from 26 to 28 February 2001 by a Tribunal consisting of Judge Carrie Wainwright (presiding), the Honourable Dr Michael Bassett, and Professor Wharehuia Milroy.

Wai 788 was lodged in July 1999 by Atiria Takiari and others, while Wai 800 was submitted by Harold Maniapoto and Roy Haar in November 1999. The two sets of claimants worked together, Wai 788 representing Ngāti Maniapoto hapu of the Mokau region and Wai 800 representing wider Ngāti Maniapoto interests. These claims were prompted by settlement negotiations between Ngāti Tama and the Crown, which in turn were a response to the Tribunal’s Taranaki Report. As a result of these negotiations, a heads of agreement for a proposed settlement of Ngāti Tama’s claims was signed in September 1999. This agreement proposed, among other things, to transfer various properties to Ngāti Tama and to provide other forms of recognition of Ngāti Tama’s interests in the north Taranaki–Mokau area.

The Ngāti Maniapoto claimants stated that they had interests in part of the area covered by the Ngāti Tama settlement, and that they would be prejudiced by the provision of redress to Ngāti Tama within that area before Ngāti Maniapoto’s claims had been heard by the Tribunal, or before Ngāti Maniapoto had entered into settlement negotiations with the Crown for its Treaty claims.

In evidence to the Tribunal, the Crown submitted details of revisions to the Ngāti Tama settlement which had been agreed to by Ngāti Tama and the Crown. The Tribunal considered that, by revising the settlement and by giving a number of undertakings intended to allay Ngāti Maniapoto’s concerns about the possible effects of this settlement on their interests, the Crown had conscientiously endeavoured to meet its obligations as a Treaty partner to both Ngāti Tama and Ngāti Maniapoto. The Tribunal noted:

There are serious precedent implications arising from the Wai 788 and Wai 800 claims. If the Tribunal were to take the view that the Crown ought not to deliver redress to any claimant where there are overlapping or cross-claims, the repercussions for the Crown’s settlement policy would be very serious. It would thwart the desire on the part of both the Crown and Māori claimants to achieve closure in respect of their historical Treaty grievances. Indefinite delay to the conclusion of Treaty settlements all around the country is an outcome that this Tribunal seeks to avoid.

The Tribunal made clear that Crown has a responsibility to ensure that negative inferences about Ngāti Maniapoto’s interests are not drawn from the Crown’s recognition of Ngāti Tama’s interests in the settlement. In the Tribunal’s view, the Crown had taken, or had promised to take, appropriate steps to meet this responsibility. The Tribunal was also convinced that, if the revised settlement with Ngāti Tama were to go ahead, the Crown would retain the capacity to provide adequate and appropriate redress to Ngāti Maniapoto when its settlement came to be negotiated.

For these reasons, the Tribunal found that the Crown would not breach Treaty principles by going ahead with the Ngāti Tama settlement on the basis of the revised settlement package. It also made a recommendation in relation to one particular site, Te Kawau Pā, which is on the coast south of Mokau. This site was originally to have been vested in Ngāti Tama as part of its settlement, but the Crown subsequently recognised that, because both Ngāti Tama and Ngāti Maniapoto had strong interests in the site, it would be inappropriate to vest title exclusively in either group. The Tribunal recommended that the status of Te Kawau Pā should remain unchanged for the time being, but that the Crown should take an active role in trying to find a way of recognising the interests of both parties:

We further recommend that the Crown facilitate hui involving Ngāti Maniapoto and Ngāti Tama to discuss the future management and ownership of Te Kawau Pā. If no agreement about the future ownership and management of this site results from such hui, we recommend that the matter be reconsidered when Ngāti Maniapoto negotiate their settlement with the Crown, at which time another attempt should be made to find a way of recognising the interests of both Ngāti Tama and Ngāti Maniapoto in the site, and of including both groups in its ownership and management.

In its Pakakohi and Tangahoe Settlement Claims Report, released in November 2000, the Waitangi Tribunal found that the Crown’s decision to accept the right of Ngāti Ruanui to settle historical claims in south Taranaki on behalf of Pakakohi and Tangahoe was ‘safe’.

The Tribunal found that the claimants, the Te Runanganui o Te Pakakohi Trust Incorporation and the Te Iwi o Tangahoe Incorporation, had not demonstrated a mandate to represent Pakakohi and Tangahoe in settlement negotiations. By contrast, the Tribunal found that there was insufficient evidence that the Crown’s decision to recognise the mandate of the Ngāti Ruanui negotiating body to represent these groups was ‘unsafe’.

The two claimants groups had alleged that the Crown’s decision not to negotiate separate settlements with them was in breach of the Treaty. However, the Tribunal found that the overwhelming majority of Tangahoe and Pakakohi people supported the proposed settlement.

The claims were heard in November 2000 by the Tribunal as a matter of urgency after the Crown and Ngāti Ruanui had signalled an intention to sign a $41 million settlement that month. The Tribunal had earlier that year attempted to resolve the matter by facilitating a mediation process between the parties, but that process had been unsuccessful.

In endorsing the Crown’s mandating decisions, the Tribunal nevertheless recommended that discussions between the parties continue in order to find ways to better express the importance of the Pakakohi and Tangahoe traditions to Ngāti Ruanui in the deed of settlement.Were those traditions not factored in, said the Tribunal, a real danger would exist that ‘the Pakakohi and Tangahoe identities would be written out of Taranaki history’. That, said the Tribunal, would create a fresh grievance out of the settlement of an old one.

Claim Wai 789, the Mokai Primary School claim, was brought by Mohi Osborne and Te Aroha Adams and concerned the closure of a sole-charge primary school at Mokai in October 1999.

The claimants alleged that, by closing Mokai Primary School, the Crown failed to protect the tino rangatiratanga and taonga of the hapu of Mokai, and so did not meet its Treaty responsibilities. The school, it was said, was a significant vehicle for the retention and transmission of 'local identity and autonomy - Mokaitanga'. Koti Te Hiko said:

I believe that if we are to retain the ahi ka of Mokaitanga then we need to educate our tamariki here in Mokai. Te ahi ka is within us when we are born but it must be nurtured within Mokai for it to survive. As the future kaumatua and kuia of Mokai the tamariki must walk alongside their parents and grandparents to learn the ways and responsibilities of the people. With the marae being so close there is a natural flow and interaction between what we sometimes call the triangle, this being the marae, the Mokai village and the school.

Mere Wall told the Tribunal that:

This isn't really just about education. This is about who we are. Our identity. This is about our whole being, our wairua, our tinana, our tikanga, our kawa … And it is time for us to stand up, as we are doing, and reclaim that … It comes from an inbuiltness to strive and to fight for who we are. You take away a man's identity, he has no face. You move these tamariki out of Mokai, they have no face. They are faceless out in the world. You keep them here, you give them solid roots and solid foundations, ae they go out to the world and they can face them with a face. So that when people ask them, ‘Ko wai koe?’ ‘Ae ko au,’ and [they] say who they are with pride and with dignity.

The Tribunal constituted to hear the claim was comprised of Joanne Morris (presiding), John Baird, Areta Koopu, and Rangitihi Tahuparae. Urgency was granted, and hearings were held in November 1999 and January 2000. The Tribunal presented its report to the Minister of Māori Affairs and the claimants on 31 March 2000:

Our analysis of the evidence and submissions presented in the claim leads to the conclusion that, despite the Crown's commitment to the goal of improving the education of Māori children, its closure of Mokai Primary School was not undertaken consistently with the principles of the Treaty of Waitangi. In brief, the "good governance" that is required of the Crown, and that is demonstrated by its attention to protecting taonga and enhancing tino rangatiratanga by reasonable means, was not evident in the chain of events that culminated in the school's closure.

The Tribunal recommended that the school be reopened with more intensive support from the Crown than was available in the past. It also recommended that the Crown clarify its policies and processes for intervening (by closure or other means) in the governance of schools in difficulty:

Although the claim concerned one small primary school that was serving a rural Māori community, we consider that the Treaty arguments and evidence submitted to us, and our analysis of them, raise larger questions about the responsiveness to Māori interests of contemporary Crown education policies.

the Governor will seize a part of the lands of the Tribes who conceal these murderers, and will use them for the purpose of maintaining peace in that part of the country and of providing for the widows and relatives of the murdered people.

New Zealand Gazette

The Ngati Awa Raupatu Report is an abbreviated report, containing no formal recommendations, that was written to support a settlement of claims arising from the Ngati Awa raupatu in the Bay of Plenty, when some 245,000 acres of land were confiscated. The report urges that all historical matters between the Crown and the Ngati Awa runanga and the runanga for Tuwharetoa ki Kawerau be settled.

The Tribunal that heard the claims comprised Chief Judge Eddie T Durie (presiding), Brian Corban, Professor Gordon Orr, Professor Keith Sorrenson, and Keita Walker. There were 12 separate hearings, which spanned almost a year and a half during the course of 1994 and 1995.

The Tribunal found that the confiscation of the Ngati Awa land was contrary to the principles of the Treaty, in that the Treaty did not allow of it and the circumstances did not justify the suspension of the Treaty rights amongst the Ngati Awa people. It emphasised that the land was confiscated not for the murder of a Crown official, as is popularly thought, but for the rebellion arising from alleged resistance when an armed force attempted to effect arrests. However, the Tribunal considered that the resistance was intended not as rebellion, or as opposition to the Government, but to defend against that which appeared to be an invading force, bent on revenge.

In addition, the Tribunal found that far more land was taken than the legislation allowed for, that it was taken from 'innocent' hapu with no involvement in the matters complained of, that a major relocation was involved to place all hapu within ready reach of a military establishment, that the hapu were left with insufficient for their needs, and that social structures were destabilised when all hapu land was locked into a fragmented, personal tenure.

I have seen many of our people today fail to observe even the most simple protocols and customs. I have seen some of our people [trample] over the tikanga that is special to us and has been laid down by our ancestors before us. I have seen our people on some occasions deny that they are Ngati Awa.

Kairau Ngahau

I vividly recall how my mother was always telling me how my grandfather, Merito Hetaraka, felt the shame and worthlessness, as he could not fulfil his duties as a Ngati Hokopu leader to ensure the future well-being of his hapu and iwi, as a result of the loss of the 'control' of our confiscated lands.

Patrick Hudson

The report ends with the Tribunal outlining its views on the issues involved in negotiating a settlement and wishing the Crown and claimants a successful resolution to 'this long outstanding problem'.

In settling the claims, regard should be had to the immediate and long-term social impacts on the Ngati Awa people in taking away their proven developmental capacity. It is also pertinent to compare their lot with that of other major descent groups or iwi. In the twentieth century, tribes that retained land would have the benefit of concessionary land development funding. Many that lost large areas of land would have the benefit of preliminary compensation administered through tribal trust boards. Comparatively, assistance for Ngati Awa has been minimal. They had little land to develop and are amongst the few that received no prior compensation.

The Waitangi Tribunal

The Waitangi Tribunal has consistently acknowledged a Maori right of development of resources as a Treaty right resulting from article 2 … The right cannot be fossilised as at 1840 and limited only to resources known or used back then.

—Claimant counsel

Claim Wai 776 was received on 9 March 1999 and registered the next day. It was lodged by Rangiaho Everton and concerned a part of the electromagnetic spectrum known as the radio spectrum, which can be used for telecommunications and information technology in general (for example, the internet, cellular phones, video links, and video conferencing can all make use of it).

At that time, the Crown was preparing to auction the rights to manage the radio spectrum in the two gigahertz range. These rights were to last for 20 years and would give the successful bidders the right to issue licences to generate signals. The auction was planned to start on 29 March 1999:

It was the Crown's attempts to sell licences to operate portions of the spectrum into private ownership that had provoked Maori claims to the Waitangi Tribunal. Maori were concerned with the Crown's ‘commercial approach’, which would see the alienation of the resource to powerful corporations.

On 15 March 1999, the claim was the subject of an urgency conference presided over by Judge Hingston. An urgent hearing of the claim followed, at which the claimant sought an urgent interim recommendation that the impending auction be postponed until a negotiated agreement with Maori on the issues had been reached. Claimant counsel noted:

In the context of the radio spectrum, the evidence has illustrated that Maori had traditional knowledge of and used parts of the electromagnetic spectrum. The development of part of that resource through technology able to channel radio waves into intelligible signals is a development to which Maori have a right.

The Tribunal of Judge Patrick Savage (presiding), Josephine Anderson, and Professor Keith Sorrenson made an interim majority finding that prima facie the claim was well founded. The Tribunal recommended that the auction be suspended and that negotiations be commenced with Maori, with a view to reserving for them a fair and equitable portion of the management rights.

The Crown decided to delay the proposed auction for three months to allow time for a substantive hearing to take place and for the Tribunal to report to the Government. That hearing was held between 30 April and 12 May, and the report was presented to the Minister of Maori Affairs and the claimants on 29 June 1999.

The Tribunal was again divided on its findings but, by different paths, reached the conclusion that there was a breach of the principles of the Treaty of Waitangi and that the claimant would be prejudiced if the Crown were to proceed with the auction without first reserving for Maori a fair and equitable portion of the frequencies. The Tribunal also found that the Radiocommunications Act 1989 was in breach of the principles of the Treaty of Waitangi. In reaching its findings, the Tribunal cited the Report on the Te Reo Maori Claim and the Treaty principles of partnership, rangatiratanga, fiduciary duty, mutual benefit, and development.

The Tribunal recommended that the Crown suspend the auction of the two gigahertz range of frequencies until it had negotiated with Maori to reserve a just share of the spectrum for them:

In our view, such an arrangement is preferable to some form of compensation by the Crown in lieu of spectrum frequencies. Maori must have hands-on ownership and management if they are to foot it in the ‘knowledge economy’, as we believe they must in the coming millennium.

Because this is in effect a national Maori claim, we recommend that the Crown and Maori consider establishing a Maori trust, somewhat along the lines of the Crown Forestry Rental Trust … Any income that a Maori spectrum trust received - say, from the development or lease of frequencies - could be used to develop infrastructure for remaining Maori frequencies or to educate and train Maori staff for employment in that infrastructure or elsewhere in the telecommunications industry.

Rarely has a Māori river claim been so persistently maintained as that of the Whanganui people. Uniquely in the annals of Māori settlement, the country’s longest navigable river is home to just one iwi, the Atihau-a-Paparangi. It has been described as the aortic artery, the central bloodline of that one heart.

The Atihau-a-Paparangi claim to the authority of the river has continued unabated from when it was first put into question. The tribal concern is evidenced by numerous petitions to Parliament from 1887. In addition, legal proceedings were commenced as early as 1938, in the Māori Land Court, on an application for the investigation of the title to the riverbed. From there the action passed to the Māori Appellate Court in 1944, the Māori Land Court again in 1945, the Supreme Court in 1949, to a further petition and the appointment of a Royal Commission in 1950, to a reference to the Court of Appeal in 1953, to a reference to the Māori Appellate Court in 1958 and to a decision of the Court of Appeal in 1962. This may represent one of the longest set of legal proceedings in Māori claims history, yet in all those proceedings, it is claimed, the principles of the Treaty of Waitangi had no direct bearing. Nor did the matter rest there for the court hearings were followed by further petitions and investigations, and in more recent times, Atihau-a-Paparangi were again involved in the Catchment Board inquiry on minimum river flows in 1988 and in the Planning Tribunal and High Court hearings on the same matter in 1989, 1990 and 1992.