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'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.'
    Piripi Walker

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.

    '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.'
    Claimant counsel

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.'

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.

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.