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This short report concerns a claim about the inclusion of Ngā Wairiki in the proposed Ngāti Apa Treaty settlement.

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.

Claim Wai 414 was lodged in January 1994 by Haki Wihongi on behalf of himself and the Te Whanau o Waipareira Trust, of which he was the chairperson. The trust had been established by Te Whanau o Waipareira, a non-tribal Maori community based in west Auckland, in order to provide effective social services and to lead the community's efforts to help itself. The claim alleged that the Crown, through the Community Funding Agency of the Department of Social Welfare, had failed to recognise the special status of Te Whanau o Waipareira as a Maori organisation and had failed to properly consult and deal with it in accordance with the Crown's obligations under article 2 of the Treaty of Waitangi.

The Tribunal constituted to hear the claim was made up of Joanne Morris (presiding), Sir John Ingram, Sir Hugh Kawharu, Pamela Ringwood, and Hepora Young, and it sat five times between August 1991 and April 1995 to hear evidence and submissions.

John Tamihere of the trust described the claim as being:

essentially about fairness, due process and equality of opportunity. It is about our right as a pan-tribal wha-nau in the urban area to be acknowledged as a Treaty partner and our right as urban Maori to organise ourselves in accordance with our own tikanga to address our own problems our way.

Dr Pita Sharples noted that:

Waipareira is the appropriate organisation to administer and deliver services and create responsibility and hope and dreams amongst our people in West Auckland. We are better suited to know our needs and to deal with them than any government organisation. That is what the claim is saying.

The members of Te Whanau o Waipareira were not all linked by kinship, and most lived outside the traditional territories of the tribes from which they were descended. The claim thus broke new ground by contending that a non-tribal group of Maori had rights under the Treaty. According to claimant counsel, at its heart the claim said that ‘the rights and interests of urban Maori, separated from, distanced from and disenfranchised from the home iwi, are rights which fall properly within the Treaty of Waitangi’.

The Te Whanau o Waipareira Report was released in Auckland on 6 July 1998. In it, the Tribunal upheld the trust's claim that Te Whanau o Waipareira was prejudiced by policies and operations of the Community Funding Agency, and it found that, if a Maori community exercised rangatiratanga, then it deserved special recognition in terms of the Treaty:

Rangatiratanga, in this context, is that which is sourced to the reciprocal duties and responsibilities between leaders and their associated Maori community. It is a relationship fundamental to Maori culture and identity and describes a leadership acting not out of self-interest but in a caring and nurturing way with the people close at heart, fully accountable to them and enjoying their support … The principle of rangatiratanga appears to be simply that Maori should control their own tikanga and taonga, including their social and political organisation, and, to the extent practicable and reasonable, fix their own policy and manage their own programmes.

In examining this claim, the Tribunal said that it was important to read all parts of the Treaty together in order to understand it, instead of trying to interpret the separate words and articles of the texts. It rejected the argument that only 'traditional iwi' are the Crown's Treaty partners, saying that the Treaty was for the protection and benefit of all Maori:

The Treaty of Waitangi was signed by rangatira of hapu, on behalf of all Maori people, collectively and individually. Therefore, conversely, protective benefits and rights of autonomy in terms of the Treaty are not limited to traditional tribal communities.

The Tribunal also found that the Treaty partnership made the Crown accountable to Maori for the outcomes of its social and welfare policies. Waipareira's efforts to provide better integrated and coordinated programmes were frustrated by its having to deal with many different Crown agencies, each with its own policies and procedures.

The Tribunal recommended that, in developing and applying policy for the delivery or funding of social services to Maori, the Department of Social Welfare and the Community Funding Agency deal with any Maori community that had demonstrated its capacity to exercise rangatiratanga in welfare matters and that social and welfare services to Maori communities stand as a separate output class designed to promote community development. It also recommended that there be better consultation and a greater devolution of decision-making power and resources to Waipareira in particular and a greater reporting of the outcomes for Maori of the Government's social policies:

We reminded ourselves that the intent of the Treaty was something like a marriage of two nations, two cultures, who wanted to share a house which they planned to build together, accommodating each other's needs with respect and goodwill, for their mutual benefit. …

The success of a marriage depends not on the ability of the parties to formulate or interpret vows advantageously to themselves, nor on their ability to enforce them in the case of dispute. Rather, it depends on their commitment to work through problems in a spirit of goodwill, trust, and generosity, actively seeking creative solutions, and taking opportunities to bolster each other.

The Maori Electoral Option Report concerns the exercise by Māori of the Māori electoral option under section 76 of the Electoral Act 1993, by which Māori may elect whether to register on the Māori roll or the general roll. In 1986, the Royal Commission on the Electoral System had noted that:

Although they were not set up for this purpose, the Māori seats have nevertheless come to be regarded by Māori as an important concession to, and the principal expression of, their constitutional position under the Treaty of Waitangi.

The Crown had provided certain funding and services to Māori to assist them to promote the enrolment of their people and to gain an understanding of the nature and implications of the choice they are required to make. The claim, brought by Hare Wakakaraka Puke on behalf of himself and those iwi and other Māori authorities that attended a Māori electoral option hui at Turangawaewae in January 1994, questioned the adequacy of the funding in terms of the Crown's Treaty of Waitangi obligations. The claim was also supported by the National Māori Congress, the New Zealand Māori Council, and the Māori Women's Welfare League.

Urgency was accorded the hearing of this claim as the two-month period during which Māori were required to exercise their electoral option ran from 15 February to 14 April 1994. The report was released on 14 February 1994.

The Tribunal of Professor Gordon Orr (presiding), Brian Corban, Professor Keith Sorrenson, Makarini Temara, Keita Walker, and Hepora Young found that the present level of funding was substantially less than would be reasonably required to meet the Crown's Treaty obligations to protect Māori citizenship rights:

The right of political representation has now been enhanced by the Electoral Act 1993 and the evidence before us strongly suggests that the present rights are highly prized. The Tribunal considers that … if adequate funding is not provided for both a vigorous kanohi ki te kanohi and a targeted mass media programme to ensure that as many Māori as possible are enrolled and exercise an informed choice then Māori will be seriously prejudiced.

The Crown conveyed its decision to the Tribunal on 1 March 1994, stating that Cabinet had declined to follow the recommendations contained in the report. This decision was made after a consideration of the extent and nature of the Crown's involvement in voter education activities as part of the electoral reform process.

This report is in response to claims relating to the development, finalisation, and implementation in the 1960s of the Tarawera Forest joint-venture scheme, a tripartite forestry scheme involving private enterprise (originally Tasman Pulp and Paper Company Limited), the Crown, and several thousand Maori. In essence, the claims assert that the Crown secured the involvement of the Maori participants in the scheme by means which were in breach of Treaty principles and which caused them prejudice. The relevant Treaty principles are those of active protection and partnership. The claimed prejudice is, first, the unnecessary and non-consensual loss from Maori ownership of more than 38,000 acres of land, including the sacred maunga Putauaki and, secondly, the loss of financial benefits that, it is said, should have been obtained from the joint venture by the Maori participants but were not.

The primary group of claimants (the Wai 411 claimants) represent the former owners of the 38,000 acres of Maori land and the current shareholders and debenture stock holders of Maori Investments Limited (MIL). MIL is a holding company created in 1968 for the specific purpose of administering the 10.8 percent stake in Tarawera Forests Limited (TFL) that was obtained by the former owners of the Maori land in return for contributing their land to the venture. Supporting the Wai 411 claim but focusing specifically on the loss of ownership of Putauaki were the Ngati Awa (Wai 46) claimants. The other claim reported on here (Wai 872) was made by an individual Wai 411 claimant during the course of the Tribunal's hearing.

A key feature of the Tarawera Forest joint venture was that ownership of the land contributed by the three venturers passed to TFL in return for a stake in that company. The claimants' land loss grievance rests on their view that the owners of the Maori land would have much preferred to lease it than lose title to it, and that a lease could have been achieved in place of the joint venture if only the Crown had acted consistently with its duty actively to protect Maori interests. Instead, the claimants allege, the Crown put its own interests ahead of those of the Maori landowners and secured their involvement in the joint venture by a variety of unfair tactics, the effect of which was that the Maori owners did not sufficiently understand or consent to the venture's terms. The sense of grievance that surrounds the loss from Maori to private ownership of such a large area of land, including the taonga Putuaki, is exacerbated by the fact that the Tarawera Forest joint-venture has proved to be a 'one-off' scheme. All other forestry projects utilising Maori land have involved leases, and some have enabled the Maori lessors to own the forest on their land at the end of the lease's term.

The claimant's second grievance is that the joint venture has not given to the Maori participants the returns promised to those who knew of it, let alone the returns that they claim would have been obtained if the venture had been negotiated fairly. At the heart of this grievance, too, is the view that the Crown put its own interests first and, by various unfair tactics, ensured that the Maori landowners became party to a venture on terms that were not to their greatest advantage.

The nature of the claims has required the Tribunal to undertake a detailed examination of the events surrounding the development and implementation of the Tarawera Forest joint venture. The first issue is the fairness, in terms of the Crown's obligations to protect Maori interests, of the process by which the joint venture was conceived and became a reality. The second issue is the attitude of the Crown throughout that process. We have found that the process followed in establishing the joint venture was inconsistent with what the Treaty principle requires of the Crown. We have also found, however, that the Crown was not motivated by bad faith in that process. Further, we are satisfied that the two claimant groups have been prejudiced by the loss of ownership of the former Maori land and the sacred mountain, and that the financial returns to MIL from the joint venture do not offset that loss. We are not satisfied, however, that the claimants have lost financial benefits due to them from their participation in the joint venture. Finally, we consider that the prejudice resulting from the loss of land ownership requires redress from the Crown, and we have made recommendations on that matter at the conclusion of this report.

The Maori Development Corporation Report of 1993 concerned the proposed sale by the Government of its shares in the Maori Development Corporation. This was the first claim of its kind to come before the Tribunal: it was not about the recovery of land or the desecration of something Māori, and there was no taonga that was obviously the subject of the grievance.

At the request of the claimants – Hohepa Waiti for and on behalf of himself and Te Runanganui o Te Ika Whenua Incorporated, Whatarangi Winiata, and others – the Tribunal granted urgency to the hearing of the claim. This was because the process by which the Crown proposed to divest itself of its shares had already been set in motion at the time the claim was made. The Tribunal comprised Judge Heta Hingston (presiding), John Ingram, Joanne Morris, and Hepora Young, and hearings were held in June and September of 1993. Professor Whatarangi Winiata outlined the claim:

There are two major issues in this claim. The first is the fundamental nature of the Crown's investment from the Treaty perspective, and the effect in Treaty terms of the proposed sale, and Crown withdrawal from the investment … The second is the process by which the sale is being effected. Maori economic interests are closely involved and the process should be one which is consistent with these interests. There should be consultation with the tribes, which there has not been … We seek to stop the sale of the Crown's shareholding, and, we urge the restructuring of Maori Development Corporation to perform the serious purpose of development banking for which it was established.

The Tribunal considered that the Maori Development Corporation was created as a Treaty settlement mechanism for the benefit of all Māori and that the Crown's involvement as the principal shareholder was a vital means of achieving Treaty-based objectives:

In light of our view that the MDC is a Treaty settlement mechanism, we also consider that the proposed sale of the Crown's shares would be inconsistent with the Treaty principle … whereby the Crown must act fairly and impartially towards all Māori. This conclusion rests upon our view that the likely outcome of a sale at this time would advantage a few iwi and disadvantage the majority, thereby creating a new prejudice.

In its report, the Tribunal recommended that the Crown immediately transfer five million shares to the Poutama Trust and that, before it sold the rest of its remaining eight million shares, it devise a sale process, in consultation with Māori, to ensure the continued control of the Māori Development Corporation by pan-Māori interests.

In 1993, Sandra Lee and Tuhuru Tainui lodged a claim for themselves and the rangatira Tuhuru and his descendants which endeavoured to establish that a grievance would be caused by the passing of the proposed Ngai Tahu Bill.

In 1992, Hariata Gordon lodged a claim on behalf of herself and Ngati Paoa which concerned the appointment of members to the Treaty of Waitangi Fisheries Commission under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. The claim alleged that Ngati Paoa, and others that joined the claim, were prejudicially affected by the consultation proposals in the 1992 Act and by a proposed policy of the Minister of Māori Affairs not to consult collectively at a hui, and that the Act and the policy were to that extent inconsistent with the Treaty of Waitangi.

The Tribunal, comprised of Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, and Mary Boyd, recommended that a hui be called, and considered it within the competence of the Ministry of Māori Development for it to call one. They recommended that the hui be directed first to the criteria for appointment and then to the selection of possible candidates.

The Te Maunga Railways Land Report of August 1994 concerned the use of the Public Works Act 1928. The claim, lodged by Michelle Henare and others, was granted urgency because the land involved at Te Maunga, in the Tauranga district, was the subject of a Māori Land Court order. That order revested the land in its former Māori owners, but with the condition that a payment of $70,000, plus GST, be made before it was returned. The claimants sought relief from this condition. Ms Henare put it this way:

I only want to express our concern about these things that have happened to us over a long time. My dad would have liked to have seen us give it our best shot. We felt it unjust that land be taken, pass from us, by Railways. We felt it has always been ours. We should not have to pay the $70,000. It is not the monetary value. It is the cultural tie that we do not want to lose. … My personal view is that the land will always be ours. They may use it as and when. It does not cease to be ours because the Crown has used it.

The land had been taken in 1955 for railways purposes under the Public Works Act 1928 and used for housing employees of the New Zealand Railways Corporation. The Tribunal found no evidence that ‘this transaction, a compulsory taking under the Public Works Act 1928, [could] be construed as a voluntary agreement to sell, on a willing seller basis’:

There was no attempt to explore alternative forms of tenure, such as a lease or licence to occupy, which would have preserved the parent title, and therefore their mana, and the rangatiratanga of the tangata whenua over their lands guaranteed to them in article 2 of the Treaty of Waitangi.

In 1985, the land was considered to be surplus to Railways Corporation requirements. At that time, the Public Works Act 1981 set out the procedures and conditions for disposing of Maori land that had been taken by the Crown for a public work but was no longer required that purpose. The land at Te Maunga was a small block, but the issues raised by the claim involved important principles of the Treaty of Waitangi: the Crown right to make laws and take land in the public interest (kawanatanga), against the guarantees of protection of Māori ownership of lands (rangatiratanga):

There was no concept of compulsory taking in customary Maori tenure systems. … the Crown guaranteed (ka wakarita ka wakaae) to Maori te tino rangatiratanga, the full authority over their lands until such time as they chose to dispose of them at an agreed price. There is in the Treaty, therefore, no assumption of a fictitious willing seller for the purpose of compulsory taking of Maori land by the Crown.

In reaching its conclusions, the Tribunal discussed the values assigned to land:

In the Maori world there are also values attributed to land and identity, ancestry and occupation, over many generations, which can never be translated into monetary terms. This is why Maori land, compulsorily acquired, is not seen by Maori as paid for, or adequately compensated, by a mere sum of money.

The Tribunal referred to the words of Justice Richardson in a 1987 court case, New Zealand Maori Council and Latimer v Attorney-General and Others, that the 'possession of land and the rights to land are not measured simply in terms of economic utility and immediately realisable commercial values'. It also quoted the words of the New Zealand Māori Council:

[Māori land] provides us with a sense of identity, belonging and continuity. It is proof of our continued existence not only as a people, but as the tangata whenua of this country. It is proof of our tribal and kin group ties. Maori land represents turangawaewae. It is proof of our link with the ancestors of our past, and with the generations yet to come. It is an assurance that we shall forever exist as a people, for as long as the land shall last.

The Tribunal of Judge Hingston, Pamela Ringwood, Evelyn Stokes and Makarini Temara concluded that this claim was well founded and recommended that the Crown take all necessary steps to ensure that the Te Maunga Railways land was revested in the former Māori owners without the payment of the $70,000 purchase price required by the Minister of Railways. They also made some more general recommendations for changes to public works legislation and the offer-back procedures to reflect more positively the Treaty principle of the Crown's fiduciary obligation toward Māori. In support, the Tribunal quoted a 1988 statement by the Minister of Lands, the Honourable Peter Tapsell, to the Māori Land Court:

Where the people were required to be divested of land, it is my view that if it is not essential for a Public Work it ought to be returned to them. It is, moreover, my view that the land ought to be returned to them unencumbered. That is it seems to me an injustice to say that we took your land eighty years ago and gave you fifty pounds, and now you can have your land back, provided you pay half a million dollars. That seems to be grossly unjust.

In late 1992, the Waitangi Tribunal inquired into several claims concerning a September 1992 settlement between the Crown and Maori on fisheries, commonly known as the Sealords deal. Hearings took place at the end of September and the beginning of October, and the Tribunal, which consisted of Chief Judge Eddie Durie (presiding), Bishop Bennett, Hugh Kawharu, and Joanne Morris, released its report in November.

The fisheries settlement had been hailed as historic. While it was not the only national settlement, it was the first to extinguish claims (the forestry and State Enterprise settlements being steps along the way) and the first to affect all iwi. It was significant too in that, previously, 'first in, first served' applied, while this settlement proposed the allocation of benefits according to a regular plan.

None the less, there were objections. The complaint in this claim was that the Deed of Settlement, or the Crown policy that it proposed, was contrary to the Treaty and prejudicial to the claimants in that it would diminish their rangatiratanga and fishing rights and impose new arrangements that had not been adequately agreed on.

The Court of Appeal, referring to apparently conflicting provisions in the deed, said:

This weakness in the Deed and other aspects of it which are criticised by the appellants could be in part accounted for by input into it from different hands. Certainly it is a most unusual document and, perhaps, even designedly, obscure in some major respects.

The Tribunal considered that the Crown had done well in seeking to provide for Māori interests in commercial fisheries, but that the spirit had become lost in the small print, leading to complaints from Māori:

Most especially it needs to be appreciated that any settlement of this nature has two essential goals, not just to pay off for the past, but also to buy into the future. The Treaty, it must be understood, is primarily concerned with the latter. It is not the extinguishment of rights that is essential but the affirmation of them. Somehow the Deed does not capture this, apart from the preamble, and Māori anxieties were understandable.

The Tribunal concluded that the Crown's Treaty obligations to hapu required any allocation of benefits to be based on principles that were fair. As the Deed stood, these obligations were likely to be compromised; both inconsistently with Treaty principles and in a manner prejudicial to some Māori. The Tribunal therefore recommended that:

that the allocation scheme should not be based on Treaty principles alone, but according to what is tika, or fair, in all the circumstances. This may include Treaty principles but need not be exclusive to them;[and]

that objections should not be referred to this Tribunal, as our jurisdiction is constrained, but should be sent to some court or especially established body that is able to consider all relevant matters.

Despite its controversial aspects, the commercial sea-fisheries agreement was subsequently embodied in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Māori now own some 50 percent of New Zealand's commercial sea fisheries and, in return, have agreed to relinquish future Treaty claims in respect of commercial sea fisheries.