Rapua ngā tuhinga ruku tātari

Claim Wai 449 was lodged in 1994 by kiwifruit growers Marata Norman and Wi Parera Te Kani on behalf of themselves, their whanau, and their iwi, and alleged that the Crown had breached the Treaty of Waitangi in regards to the kiwifruit industry and, in particular, to the export of their kiwifruit as the produce of their ancestral lands.

Specifically, the claim challenged the Primary Products Marketing Act 1953 and the Kiwifruit Marketing Regulations 1977, which gave the New Zealand Kiwifruit Marketing Board a monopoly to export kiwifruit to all foreign markets except Australia. The claimants alleged that this monopoly violated their right to exercise te tino rangatiratanga over their own affairs.

The claim was accorded urgency on the ground that, if the claimants' Treaty rights were not determined quickly, then they could have been locked into a regime that could have caused them irreparable economic damage.

The Tribunal constituted to hear the claim comprised Judge Patrick Savage (presiding), the Honourable Dr Michael Bassett, John Kneebone, and Sir John Turei. The evidence and submissions were heard between 24 July and 1 August 1995, and the report was presented to the Minister of Maori Affairs and the claimants three months later, on 6 November.

The central issue in the Tribunal's deliberations was whether the right to export kiwifruit was a taonga with protection under article 2 of the Treaty of Waitangi. The Tribunal concluded that it was not a taonga and that, even if it had been, 'the regulation of export trade is a legitimate exercise of kawanatanga'. The Tribunal thus found that the claim was not well founded:

in pre-contact times the exchange of treasures by iwi and hapu might have been regarded as a taonga. It would, in our view, be an unjustified straining of Treaty principles to hold that the right to develop such a treasure could extend all the way to the modern kiwifruit export trade.

The Tribunal did, however, make some points with regard to consultation, noting that 'there did not seem to be an adequate recognition of Treaty duties by the parties to this claim'.

The Tribunal ended by saying that it was confident that those who had been involved in the claim had learnt much from it and hoped that all who were involved in the kiwifruit industry would try harder to develop the spirit of partnership that was implicit in the Treaty.