Rapua ngā tuhinga ruku tātari

The narrative that follows will not lie comfortably on the conscience of this nation, just as the outstanding grievances of Ngai Tahu have for so long troubled that tribe and compelled them time and again to seek justice. The noble principle of justice, and close companion honour, are very much subject to question as this inquiry proceeds. Likewise, the other important equities of trust and good faith are called into account and as a result of their breach sadly give rise to well grounded iwi protestations about dishonour and injustice and their companions, high-handedness and arrogance.

The Waitangi Tribunal

The various reports dealing with the Ngāi Tahu claims constitute the Tribunal’s most exhaustive treatment of an inquiry. The three volumes of the Ngai Tahu Report 1991 total more than 1200 pages, and the Sea Fisheries and Ancillary Claims reports add another 400 pages each to the Tribunal’s coverage of the issues.

I hereby claim upon the principles of justice, truth, peace and goodwill for and on behalf of my peoples within the principles of the Treaty of Waitangi.

Rakiihia Tau

The Ngāi Tahu inquiry began with a claim, Wai 27, registered in August 1986. It was brought by Rakiihia Tau and the Ngāi Tahu Maori Trust Board, but as the Tribunal said, it was ‘really from and about Ngai Tahu, an amalgam formed from three main lines of descent which flowed together to make the modern tribe’. The inquiry was extensive: over a period of 3½ years, 23 hearings were conducted and the Tribunal received 900 submissions and heard from 262 witnesses and 25 corporate bodies.

The claim was presented in nine parts, known as the ‘Nine Tall Trees of Ngai Tahu’. Eight of these ‘trees’ represented the different areas of land purchased from Ngāi Tahu, whilst the ninth represented Ngāi Tahu’s mahinga kai, or food resources. A number of grievances attached to each of the nine tall trees, and these came to be known as the ‘branches of the Nine Tall Trees’. There were also a number of smaller claims, which came to be described as the ‘undergrowth’, or ancillary, claims.

The Tribunal constituted to hear the claims comprised Deputy Chief Judge Ashley McHugh (presiding), Bishop Manuhuia Bennett, Sir Monita Delamere, Professor Sir Hugh Kawharu, Professor Gordon Orr, Sir Desmond Sullivan, and Georgina Te Heuheu, though Sir Monita died in 1993, before the last of the reports was released. The Ngai Tahu Report came out in 1991, the Ngai Tahu Sea Fisheries Report in August 1992, and the Ngai Tahu Ancillary Claims Report in May 1995.

This claim is not primarily about the inadequacy of price that Ngai Tahu was paid, although as we will see in respect of the North Canterbury, Kaikoura and Arahura purchases, the claimants strongly criticised the arbitrary imposition and unfavourable terms of the purchase price. Ngai Tahu have certainly a sense of grievance about the paucity of payment they received for their land but then Ngai Tahu have always regarded the purchase price not as a properly assessed market value consideration in the European concept but rather as a deposit; a token, a gratuity. Ngai Tahu understanding and the substance of their expectations was that they agreed to share their resources with the settler. Each would learn from the other. There was an expectation that Ngai Tahu would participate in and enjoy the benefits that would flow from the settlement of their land. As part of that expectation they wished to retain sufficient land to protect their food resources. They expected to be provided with, or to have excluded from the sale, adequate endowments that would enable them to engage in the new developing pastoral and commercial economy.

This claim and this story is about that expectation. Ngai Tahu grievances therefore are directed at the Crown’s failure to keep its promises, its failure to provide the reserves, the food resources and the health, educational and land endowments that were needed to give Ngai Tahu a stake in the new economy. This claim is also about Ngai Tahu’s comprehension of those areas of land they considered they did not sell to the Crown despite what the written agreements might have said. And of course, this claim is about Ngai Tahu expectations of their rights under the Treaty of Waitangi and how those rights were disregarded by the Crown in its dealings with the tribe.

The Waitangi Tribunal

In the Ngai Tahu Report, the Tribunal concluded that many of the grievances arising from the Crown’s South Island purchases, including those relating to mahinga kai, were established, and the Crown itself conceded that it had failed to ensure that Ngāi Tahu were left with ample lands for their needs. The Tribunal found that, in acquiring more than half the land mass of New Zealand from the tribe for £14,750, which left Ngai Tahu only 35,757 acres, the Crown had acted unconscionably and in repeated breach of the Treaty, and its subsequent efforts to make good the loss were found to be ‘few, extremely dilatory, and largely ineffectual’. After the Ngai Tahu Report was released, the Tribunal also put out a short supplementary report in which it referred to the need for tribal structures to be put in place to allow Ngāi Tahu to conduct remedies negotiations with the Crown. The Tribunal supported the proposals regarding representation that the claimants had made and it recommended that the Ministry of Māori Affairs introduce legislation constituting the Ngāi Tahu Iwi Authority as the appropriate legal personality to act on behalf of the iwi in those negotiations.

The Sea Fisheries Report dealt with the issue of Ngāi Tahu’s fisheries, and reported that, as a direct consequence of the loss of their land, Ngāi Tahu were ‘unable to continue their thriving and expanding business and activity of sea fishing’. The Tribunal found that, in legislating to protect and conserve fisheries resources, the Crown had failed to recognise Ngāi Tahu’s rangatiratanga over their fisheries and in particular their tribal rights of self-regulation or self-management of their resource. It also found that the quota management system then in place was in fundamental conflict with the terms of the Treaty and with Treaty principles. The Tribunal recommended that the Crown and Ngāi Tahu negotiate a settlement of the sea fisheries claim, that an appropriate additional percentage of fishing quota be allocated to Ngāi Tahu and that Waihora (Lake Ellesmere) be returned to them as an eel fishery, and that the Fisheries Act 1983 be amended to allow for ‘mahinga kaimoana’, or specific marine areas set aside for iwi.

The Ancillary Claims report dealt with 100 of the ‘undergrowth’ claims and showed how the 35,757 acres that Ngāi Tahu had been left with were further eroded by public works and other acquisitions. Of the 100 claims, 41 were found to involve breaches of the Treaty, and as a result, the Tribunal recommended that the Public Works Act 1981 be amended and proposed changes to the way that the Crown acquired land from Māori for public purposes.

The narrative that follows will not lie comfortably on the conscience of this nation, just as the outstanding grievances of Ngai Tahu have for so long troubled that tribe and compelled them time and again to seek justice. The noble principle of justice, and close companion honour, are very much subject to question as this inquiry proceeds. Likewise, the other important equities of trust and good faith are called into account and as a result of their breach sadly give rise to well grounded iwi protestations about dishonour and injustice and their companions, high-handedness and arrogance.

The Waitangi Tribunal

The various reports dealing with the Ngāi Tahu claims constitute the Tribunal’s most exhaustive treatment of an inquiry. The three volumes of the Ngai Tahu Report 1991 total more than 1200 pages, and the Sea Fisheries and Ancillary Claims reports add another 400 pages each to the Tribunal’s coverage of the issues.

I hereby claim upon the principles of justice, truth, peace and goodwill for and on behalf of my peoples within the principles of the Treaty of Waitangi.

Rakiihia Tau

The Ngāi Tahu inquiry began with a claim, Wai 27, registered in August 1986. It was brought by Rakiihia Tau and the Ngāi Tahu Maori Trust Board, but as the Tribunal said, it was ‘really from and about Ngai Tahu, an amalgam formed from three main lines of descent which flowed together to make the modern tribe’. The inquiry was extensive: over a period of 3½ years, 23 hearings were conducted and the Tribunal received 900 submissions and heard from 262 witnesses and 25 corporate bodies.

The claim was presented in nine parts, known as the ‘Nine Tall Trees of Ngai Tahu’. Eight of these ‘trees’ represented the different areas of land purchased from Ngāi Tahu, whilst the ninth represented Ngāi Tahu’s mahinga kai, or food resources. A number of grievances attached to each of the nine tall trees, and these came to be known as the ‘branches of the Nine Tall Trees’. There were also a number of smaller claims, which came to be described as the ‘undergrowth’, or ancillary, claims.

The Tribunal constituted to hear the claims comprised Deputy Chief Judge Ashley McHugh (presiding), Bishop Manuhuia Bennett, Sir Monita Delamere, Professor Sir Hugh Kawharu, Professor Gordon Orr, Sir Desmond Sullivan, and Georgina Te Heuheu, though Sir Monita died in 1993, before the last of the reports was released. The Ngai Tahu Report came out in 1991, the Ngai Tahu Sea Fisheries Report in August 1992, and the Ngai Tahu Ancillary Claims Report in May 1995.

This claim is not primarily about the inadequacy of price that Ngai Tahu was paid, although as we will see in respect of the North Canterbury, Kaikoura and Arahura purchases, the claimants strongly criticised the arbitrary imposition and unfavourable terms of the purchase price. Ngai Tahu have certainly a sense of grievance about the paucity of payment they received for their land but then Ngai Tahu have always regarded the purchase price not as a properly assessed market value consideration in the European concept but rather as a deposit; a token, a gratuity. Ngai Tahu understanding and the substance of their expectations was that they agreed to share their resources with the settler. Each would learn from the other. There was an expectation that Ngai Tahu would participate in and enjoy the benefits that would flow from the settlement of their land. As part of that expectation they wished to retain sufficient land to protect their food resources. They expected to be provided with, or to have excluded from the sale, adequate endowments that would enable them to engage in the new developing pastoral and commercial economy.

This claim and this story is about that expectation. Ngai Tahu grievances therefore are directed at the Crown’s failure to keep its promises, its failure to provide the reserves, the food resources and the health, educational and land endowments that were needed to give Ngai Tahu a stake in the new economy. This claim is also about Ngai Tahu’s comprehension of those areas of land they considered they did not sell to the Crown despite what the written agreements might have said. And of course, this claim is about Ngai Tahu expectations of their rights under the Treaty of Waitangi and how those rights were disregarded by the Crown in its dealings with the tribe.

The Waitangi Tribunal

In the Ngai Tahu Report, the Tribunal concluded that many of the grievances arising from the Crown’s South Island purchases, including those relating to mahinga kai, were established, and the Crown itself conceded that it had failed to ensure that Ngāi Tahu were left with ample lands for their needs. The Tribunal found that, in acquiring more than half the land mass of New Zealand from the tribe for £14,750, which left Ngai Tahu only 35,757 acres, the Crown had acted unconscionably and in repeated breach of the Treaty, and its subsequent efforts to make good the loss were found to be ‘few, extremely dilatory, and largely ineffectual’. After the Ngai Tahu Report was released, the Tribunal also put out a short supplementary report in which it referred to the need for tribal structures to be put in place to allow Ngāi Tahu to conduct remedies negotiations with the Crown. The Tribunal supported the proposals regarding representation that the claimants had made and it recommended that the Ministry of Māori Affairs introduce legislation constituting the Ngāi Tahu Iwi Authority as the appropriate legal personality to act on behalf of the iwi in those negotiations.

The Sea Fisheries Report dealt with the issue of Ngāi Tahu’s fisheries, and reported that, as a direct consequence of the loss of their land, Ngāi Tahu were ‘unable to continue their thriving and expanding business and activity of sea fishing’. The Tribunal found that, in legislating to protect and conserve fisheries resources, the Crown had failed to recognise Ngāi Tahu’s rangatiratanga over their fisheries and in particular their tribal rights of self-regulation or self-management of their resource. It also found that the quota management system then in place was in fundamental conflict with the terms of the Treaty and with Treaty principles. The Tribunal recommended that the Crown and Ngāi Tahu negotiate a settlement of the sea fisheries claim, that an appropriate additional percentage of fishing quota be allocated to Ngāi Tahu and that Waihora (Lake Ellesmere) be returned to them as an eel fishery, and that the Fisheries Act 1983 be amended to allow for ‘mahinga kaimoana’, or specific marine areas set aside for iwi.

The Ancillary Claims report dealt with 100 of the ‘undergrowth’ claims and showed how the 35,757 acres that Ngāi Tahu had been left with were further eroded by public works and other acquisitions. Of the 100 claims, 41 were found to involve breaches of the Treaty, and as a result, the Tribunal recommended that the Public Works Act 1981 be amended and proposed changes to the way that the Crown acquired land from Māori for public purposes.

Ko to ringa ki nga rakau a te Pakeha

Let your hand be armed with the technology of the Pakeha

In June 1986, the Waitangi Tribunal received a claim from Huirangi Waikerepuru on behalf of Nga Kaiwhakapumau i te Reo which sought to reopen the proceedings that had resulted in the Tribunal’s just-released Report on the Te Reo Maori Claim. The claim alleged that the Crown had breached the Treaty by failing to await the Tribunal’s recommendations before introducing a Bill on the Maori language to Parliament and that Maoridom's claim for radio frequencies and a television channel and resources were being denied.

The claimants subsequently accepted that the Tribunal had no power to reopen matters that it had already dealt with in its Report on the Te Reo Maori Claim but suggested that, since the Tribunal had not made final recommendations on the broadcasting issues, it could still consider them.

In June 1990, claim Wai 150 was lodged by Sir Graham Latimer on behalf of the New Zealand Maori Council. It sought an urgent interim ruling and recommendation that nothing be done to pursue the spectrum management policy embodied in the Radiocommunications Act 1989 until there had been a negotiated resolution of all the issues raised in the claim and that any title to radio spectrum products created by the Act be subject to a caveat which recognised and protected the Maori interest in radio frequencies.

The claim sought findings that Maori have rangatiratanga over the allocation of radio frequencies and that, in the absence of an agreement with Maori, the sale of frequency management licences under the Radiocommunications Act 1989 would breach the Treaty of Waitangi and be prejudicial to the interests of Maori.

The existence of radio waves was discovered by Heinrich Hertz in about 1886, and their development was initiated by Guglielmo Marconi at the turn of the century. Neither man was a British subject.

The resource existed in economic terms before then, and in 1840, even though, like oil, the capacity of land for grazing, or orange roughy, it had zero value until it was discovered and the technologies to use it were developed.

Whether discovered or not, the chiefs and tribes had absolute chieftainship over all resources, discovered and undiscovered, in New Zealand in 1840, just as a sovereign state makes similar claims in respect of such resources within its own borders. Maori could not be expected to surrender such resources to the discoverer because of the discovery, any more than a modern state would to the Italian Marconi or his descendants.

Wai 150 statement of claim

At the initial stages of the inquiry, counsel agreed that the Wai 26 claim should be amalgamated with the Wai 150 claim and that the two ought to be dealt with as one. The Tribunal agreed to this course of action.

In mid-July 1990, the claimants filed a request for urgency on the ground that the Crown was planning to seek tenders for 20-year rights to AM and FM radio frequencies in August. Despite formal requests by both the claimants and the chairperson of the Tribunal, the Minister of Communications replied that the Government was not prepared to delay the tendering process, and so the claimants commenced a High Court action seeking a judicial review of the Minister’s decision. This action was successful. The Crown appealed to the Court of Appeal, which heard the case in early October and issued its judgment on 1 November. A majority of the five members of that court found that the Minister could not reasonably have decided to proceed with the tender without first awaiting the report of the Waitangi Tribunal, and thereafter the Tribunal's inquiry proceeded under the protection and the urgency of that ruling.

On 5 October 1990, the chairperson directed that Judge Peter Trapski, Bishop Manuhuia Bennett, and Erihana Ryan would constitute the Tribunal to hear the claim, with Judge Trapski presiding. The claims were heard over 10 days in Wellington, at Waiwhetu Marae and the Tribunal's offices, and the Report of the Waitangi Tribunal on Claims Concerning the Allocation of Radio Frequencies was released in November 1990.

The Tribunal concluded that the claim was well founded. It recommended that the Crown suspend the radio frequency tender for six months to allow further consultation with iwi to take place; that it make independent technical advisers available to iwi to assess their needs and to ascertain what would be an appropriate allocation of radio frequencies; and that FM frequencies be made available for Maori broadcasting in Auckland and Wellington.

The broadcasting media, radio and television, play a key role in the maintenance or loss, development or stagnation of language and culture, not only by what they do, but by what they do not do. The virtual absence of Maori language from radio and television has been a potent factor in the decline in the number of fluent speakers of Maori over the last forty years, to the point where its survival is problematic. This must be rectified. …

The spectrum is a natural resource, enveloping the whole of the earth at the same time. As such it is for the whole of mankind. It cannot be possessed by one person or by one group; it can only be used by them. The available right is the right of access shared with all other members of the human race. The spectrum is a taonga to be shared by the tribes and by all mankind. Neither of the Treaty partners can have monopoly rights to this resource. …

[This] is not simply a case where Maori can argue prior ownership before the Treaty. Nor can the Crown argue that Maori have no rights to the spectrum other than a general public right, nor a right only in terms of the language. The use of the radio spectrum is so intimately tied up with the use of Maori language and culture, and the protection and development of these things, that the Maori right to access must amount to more than this. Tribal rangatiratanga gives Maori a greater right of access to the newly discovered spectrum. In any scheme of spectrum management it has rights greater than the general public, and especially when it is being used for the protection of the taonga of the language and the culture.

The Waitangi Tribunal

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

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 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.