Rapua ngā tuhinga ruku tātari

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.

In 1984, the Tai Tokerau District Maori Council lodged claim Wai 13 alleging that fisheries regulations were contrary to the Treaty of Waitangi.

Before the Wai 13 claim was ready to proceed, the Tribunal constituted to hear the Muriwhenua fishing claim (Wai 22) began sitting and later substantially covered the same issues in its Report on the Muriwhenua Fishing Claim. Because of this, in a report dated 20 February 1990, Deputy Chief Judge Ashley McHugh advised that the Tribunal would not be inquiring further into Wai 13.

In August 1984, Ringakapo Payne sought advice on how to lay a claim about the flooding of Māori-owned building sections at Tokaanu. She was sent instructions for laying a claim, but no more correspondence was received and the Tribunal did not inquire further into the matter. The report was signed by Deputy Chief Judge Ashley McHugh and was dated 20 February 1990.

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.

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

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.

In February 1985, Mr D McMaster filed a claim with the Waitangi Tribunal alleging that a number of special privileges were accorded to Māori people by virtue of their race, and that these privileges were at variance with the Treaty of Waitangi.

On 21 May 1985, the Tribunal of Chief Judge Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC reported that Mr McMaster had been informed that, under section 6 of the Treaty of Waitangi Act 1975, only Māori could bring a claim to the Tribunal. Mr McMaster had replied that he was not a Māori, and he had withdrawn the claim.

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

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.

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.