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.

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 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.

The Waitangi Tribunal released its second preliminary report on Te Tau Ihu customary rights on 3 September 2007. This report follows an earlier preliminary report released in March 2007. The Tribunal has prepared these reports to assist claimants and the Crown with their negotiations by providing early findings on customary rights and their treatment by the Crown. The Tribunal’s main Te Tau Ihu report will address the remaining issues in the Northern South Island inquiry.

The Tribunal panel comprises Judge Wilson Isaac (presiding officer), Rangitihi Tahuparae, John Clarke, Professor Keith Sorrenson, and Pam Ringwood.

Their second preliminary report concerns the customary rights of Te Tau Ihu iwi in the area defined by Te Runanga o Ngai Tahu Act 1996 as the Ngai Tahu takiwa. The Tribunal found that the six Te Tau Ihu iwi that advanced claims with respect to the takiwa – Ngati Apa, Rangitane, Ngati Toa Rangatira, Ngati Rarua, Ngati Tama, and Te Atiawa – had valid customary rights in the takiwa, overlapping the acknowledged rights of Ngai Tahu.

On the east coast, the Tribunal found that Rangitane, Ngati Toa, and Ngai Tahu had legitimate overlapping customary rights in the area between Parinui-o-whiti and Waiau-toa. On the West Coast, the Tribunal found that Ngati Rarua, Ngati Tama, Te Atiawa, Ngati Toa, Ngati Apa, and Ngai Tahu had legitimate overlapping customary rights between Kawatiri and Kahurangi. The rights varied, depending on the iwi, but none of the rights had been extinguished prior to Crown purchasing from 1847.

The Tribunal found that the rights of all these iwi were protected and guaranteed by the Treaty. Notwithstanding this, the Crown extinguished the vast majority of these interests in a series of purchases between 1847 and 1860 without determining the correct right-holders or obtaining their full and free consent.

In 1847, the Tribunal found, the Government extorted the Wairau block from three chiefs in Wellington, thus disenfranchising all other Ngati Toa, Ngati Rarua, and Rangitane people. Then, in 1853, the Government arranged a cession of all Ngati Toa’s interests in the South Island by an unfair manipulation. From 1854 to 1856, it used this cession (the Waipounamu purchase) to obtain the interests of all the other Te Tau Ihu tribes without their free and full consent. These actions, the Tribunal concluded, were in plain breach of the Treaty and its principles.

The Tribunal found that Ngai Tahu’s interests in the northern part of the takiwa were also extinguished through a series of blanket purchases from 1848, concluding with the Kaikoura purchase (1859) on the east coast and the Arahura purchase (1860) on the west. In the Kaikoura transaction, the Crown neither inquired into nor considered Ngati Toa or Rangitane rights. Ngati Toa’s interests in the northern part of the takiwa had been inadequately acknowledged in the Wairau purchase and were not reconsidered in the Kaikoura transaction. The Crown had altogether failed either to inquire into or to consider Rangitane’s interests on this part of the coast and these interests were unfairly extinguished through the Kaikoura purchase, in breach of the Treaty and its principles.

On the West Coast, the Tribunal considered that the rights of Ngati Toa, Ngati Rarua, Ngati Tama, and Te Atiawa had been inadequately acknowledged in the Waipounamu purchase and were not reconsidered during the negotiations for Arahura. The Crown had never inquired into Ngati Apa’s customary rights and once more failed to do so in the Arahura transaction. Ngati Apa were only belatedly considered, and the Government made no inquiry into the extent of their interests. This limited and belated acknowledgement precluded Ngati Apa’s informed consent and was, in the opinion of the Tribunal, in breach of the Treaty and its principles.

The Tribunal further considered that these historical breaches against Te Tau Ihu iwi continued into the twentieth century when the Crown chose to deal exclusively with Ngai Tahu in the Ngai Tahu takiwa, at the expense of Te Tau Ihu iwi who also had legitimate rights in the area. On the basis of a Maori Appellate Court finding in 1990 that Ngai Tahu had sole rights of ownership in the Kaikoura and Arahura blocks at the time of the sale to the Crown, the Government has since dealt exclusively with Ngai Tahu.

The boundaries of the takiwa were statutorily defined in Te Runanga o Ngai Tahu Act 1996 and the Ngai Tahu Claims Settlement Act 1998.The Tribunal pointed out that there is nothing in this legislation that prevents the Government from considering Te Tau Ihu iwi interests within the takiwa. The legislation is not in itself in breach of the Treaty, rather the breach lies in the way in which the Government has interpreted it. Te Tau Ihu iwi interests were ignored during the negotiation and settlement of the Ngai Tahu claim. The Tribunal concluded that the Crown had failed to consult adequately with Te Tau Ihu iwi during this process and assets that could potentially have been included in future settlement with Te Tau Ihu iwi were vested in the sole ownership of Ngai Tahu. This exclusive treatment had continued since the settlement, to the detriment of Te Tau Ihu iwi.

On 22 November 2008, the Waitangi Tribunal released its final report on the Treaty claims of iwi and hapu of Te Tau Ihu (northern South Island). The eight recognised iwi are Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa Rangatira, Te Atiawa, and Rangitane. The report had earlier been released as an incomplete pre-publication edition in order to help with the claimants in their settlement negotiations with the Crown.

The Tribunal inquiry panel comprised Maori land Court Deputy Chief Judge Wilson Isaac (presiding officer), Professor Keith Sorrenson, Pam Ringwood, and John Clarke. The late Rangitihi Tahuparae, a respected kaumatua of Whanganui, passed away on 2 October 2008 between the completion of the report and its publication.

In its report, the Tribunal found that many acts and omissions of the Crown breached the principles of the Treaty of Waitangi. In particular, the Tribunal concluded that ownership of all but a tiny fraction of land in the Te Tau Ihu district was lost to Maori without first gaining their free, informed, and meaningful consent to the alienations. Nor did the Crown ensure that fair prices were paid and sufficient lands retained by the iwi for their own requirements.

The Tribunal finds that, contrary to Treaty principles, the Crown granted lands at Nelson and Golden Bay to the New Zealand Company without first ensuring that all customary owners were fairly dealt with. It then proceeded with its own large-scale Wairau and Waipounamu purchases, making predetermined decisions as to ownership which ignored the rights of many Te Tau Ihu Maori or left them with little meaningful choice over the alienation of their lands.

As a result, by as early as 1860 Te Tau Ihu Maori had lost most of their original estate. Thereafter, the Crown failed to actively protect their interests in those lands which remained to them. It also failed to protect their just rights and interests in valued natural resources. Despite petitions from Maori and repeated reports from its own officials, the Crown failed to protect or provide for Maori interests and rights in their customary fisheries and other resources. The result of these failures was grinding poverty, social dislocation, and loss of culture.

The Tribunal found that the totality of Treaty breaches were serious and caused significant social, economic, cultural, and spiritual prejudice to all iwi of Te Tau Ihu. These breaches, the Tribunal considered, required large and culturally appropriate redress.

In an attempt to assist Te Tau Ihu Treaty settlements, the Tribunal made several recommendations for remedies. Having regard in particular to the relatively even spread in terms of social and economic prejudice across all eight Te Tau Ihu iwi, the Tribunal recommended that the total quantum of financial and commercial redress be divided equally between them.

The Tribunal also recommended that site-specific cultural redress should be discussed collectively with all groups involved in Te Tau Ihu Treaty negotiations and that the unique claim of Ngati Apa, whose customary interests within Te Tau Ihu were never extinguished by any kind of deed of cession, needed special recognition. The Tribunal found the Crown’s repeated failure to properly recognise and deal with the Kurahaupo iwi as the legitimate tangata whenua (alongside the northern tribes) of Te Tau Ihu to be a serious breach. It recommended that the Crown take steps to fully recognise and restore the mana of the Kurahaupo iwi.

The Tribunal recommended that the settlement of historical grievances relating to Wakatu Incorporation was most appropriately a matter to be concluded between the Crown and Te Tau Ihu iwi and that matters affecting the shareholders of Wakatu Incorporation since its establishment in 1977 should be resolved between the incorporation and the Crown. It recommended that the Crown enter into parallel negotiations with the Ngati Rarua Atiawa Iwi Trust, with a view to bringing the Whakarewa (Motueka) leases into line with the 1997 Maori reserved lands settlement.

The Tribunal’s report highlighted a number of shortcomings with respect to the current ‘offer-back’ regime under the Public Works Act 1981. It recommended amendments to the Te Ture Whenua Maori Act 1993 and the Public Works Act to address these issues.

The Tribunal also highlighted problems with resource and fishery management regimes and recommended changes and improvements to ensure that these regimes were more consistent with the Treaty. The Crown admitted that the Resource Management Act 1991 was not being implemented in a manner that provided fairly for Maori interests.

Finally, the Tribunal made recommendations with respect to the customary interests of Te Tau Ihu iwi within the statutorily defined Ngai Tahu takiwa. Te Tau Ihu iwi lost the ability to recover their interests in lands within the takiwa, which have been vested in Ngai Tahu as a result of earlier Crown settlement. The Tribunal strongly recommended that the Crown take urgent action to ensure that these breaches did not continue. It also recommended that the Crown negotiate with those Te Tau Ihu iwi identified in the report as having customary interests within the statutorily defined Ngai Tahu takiwa to agree on equitable compensation.

On 22 November 2008, the Waitangi Tribunal released its final report on the Treaty claims of iwi and hapu of Te Tau Ihu (northern South Island). The eight recognised iwi are Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa Rangatira, Te Atiawa, and Rangitane. The report had earlier been released as an incomplete pre-publication edition in order to help with the claimants in their settlement negotiations with the Crown.

The Tribunal inquiry panel comprised Maori land Court Deputy Chief Judge Wilson Isaac (presiding officer), Professor Keith Sorrenson, Pam Ringwood, and John Clarke. The late Rangitihi Tahuparae, a respected kaumatua of Whanganui, passed away on 2 October 2008 between the completion of the report and its publication.

In its report, the Tribunal found that many acts and omissions of the Crown breached the principles of the Treaty of Waitangi. In particular, the Tribunal concluded that ownership of all but a tiny fraction of land in the Te Tau Ihu district was lost to Maori without first gaining their free, informed, and meaningful consent to the alienations. Nor did the Crown ensure that fair prices were paid and sufficient lands retained by the iwi for their own requirements.

The Tribunal finds that, contrary to Treaty principles, the Crown granted lands at Nelson and Golden Bay to the New Zealand Company without first ensuring that all customary owners were fairly dealt with. It then proceeded with its own large-scale Wairau and Waipounamu purchases, making predetermined decisions as to ownership which ignored the rights of many Te Tau Ihu Maori or left them with little meaningful choice over the alienation of their lands.

As a result, by as early as 1860 Te Tau Ihu Maori had lost most of their original estate. Thereafter, the Crown failed to actively protect their interests in those lands which remained to them. It also failed to protect their just rights and interests in valued natural resources. Despite petitions from Maori and repeated reports from its own officials, the Crown failed to protect or provide for Maori interests and rights in their customary fisheries and other resources. The result of these failures was grinding poverty, social dislocation, and loss of culture.

The Tribunal found that the totality of Treaty breaches were serious and caused significant social, economic, cultural, and spiritual prejudice to all iwi of Te Tau Ihu. These breaches, the Tribunal considered, required large and culturally appropriate redress.

In an attempt to assist Te Tau Ihu Treaty settlements, the Tribunal made several recommendations for remedies. Having regard in particular to the relatively even spread in terms of social and economic prejudice across all eight Te Tau Ihu iwi, the Tribunal recommended that the total quantum of financial and commercial redress be divided equally between them.

The Tribunal also recommended that site-specific cultural redress should be discussed collectively with all groups involved in Te Tau Ihu Treaty negotiations and that the unique claim of Ngati Apa, whose customary interests within Te Tau Ihu were never extinguished by any kind of deed of cession, needed special recognition. The Tribunal found the Crown’s repeated failure to properly recognise and deal with the Kurahaupo iwi as the legitimate tangata whenua (alongside the northern tribes) of Te Tau Ihu to be a serious breach. It recommended that the Crown take steps to fully recognise and restore the mana of the Kurahaupo iwi.

The Tribunal recommended that the settlement of historical grievances relating to Wakatu Incorporation was most appropriately a matter to be concluded between the Crown and Te Tau Ihu iwi and that matters affecting the shareholders of Wakatu Incorporation since its establishment in 1977 should be resolved between the incorporation and the Crown. It recommended that the Crown enter into parallel negotiations with the Ngati Rarua Atiawa Iwi Trust, with a view to bringing the Whakarewa (Motueka) leases into line with the 1997 Maori reserved lands settlement.

The Tribunal’s report highlighted a number of shortcomings with respect to the current ‘offer-back’ regime under the Public Works Act 1981. It recommended amendments to the Te Ture Whenua Maori Act 1993 and the Public Works Act to address these issues.

The Tribunal also highlighted problems with resource and fishery management regimes and recommended changes and improvements to ensure that these regimes were more consistent with the Treaty. The Crown admitted that the Resource Management Act 1991 was not being implemented in a manner that provided fairly for Maori interests.

Finally, the Tribunal made recommendations with respect to the customary interests of Te Tau Ihu iwi within the statutorily defined Ngai Tahu takiwa. Te Tau Ihu iwi lost the ability to recover their interests in lands within the takiwa, which have been vested in Ngai Tahu as a result of earlier Crown settlement. The Tribunal strongly recommended that the Crown take urgent action to ensure that these breaches did not continue. It also recommended that the Crown negotiate with those Te Tau Ihu iwi identified in the report as having customary interests within the statutorily defined Ngai Tahu takiwa to agree on equitable compensation.

This preliminary report concerns claims about the northern South Island.