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Addendum to the short interim report concerning a claim about the polling arrangements for the 10 July 2004 Te Tai Hauauru by-election.

At the end of March 2004, the Minister in Charge of Treaty of Waitangi Negotiations and the Minister of Māori Affairs recognised the deed of mandate of the executive council of Nga Kaihautu o Te Arawa to negotiate the settlement of all of Te Arawa’s historical claims. Following that decision, claims concerning the planned settlement negotiations and the recognition of the mandate were filed with the Waitangi Tribunal and the claims were granted urgency. Judge Caren Wickliffe, John Baird, and Gloria Herbert were appointed to hear the claims (with Judge Wickliffe presiding), and a hearing was held in Rotorua in late June 2004. The Te Arawa Mandate Report was released in September 2004.

The report found that the Crown failed to carry out a sufficiently active role in monitoring and scrutinising the Te Arawa mandating process, or in assessing the executive council’s deed of mandate. The Tribunal concluded that issues of representivity and accountability with respect to the executive council had not been thoroughly or fully resolved.

However, the Tribunal stopped short of upholding the claims per se or finding that the Crown acted in breach of the Treaty causing prejudice, since an opportunity remained for matters to be put to right. The Crown had also indicated that it wanted to review the process by which the executive council’s mandate was achieved.

The Tribunal thus suggested that a hui be held of Te Arawa iwi and hapu representatives (elected members of the kaihautu) to debate and vote on issues such as the number of groups to be represented on the executive council, the proportionality of seats across the iwi and hapu, and the question of the degree of accountability of the executive council to the kaihautu.

The Tribunal stated that not only would the Crown be in breach of the Treaty if it made an inadequate response to the Tribunal’s suggested course of action but it would also risk promoting entrenched division within Te Arawa between the executive council and its opponents. Leave was granted to the claimants to return to the Tribunal if the Crown’s response was in fact inadequate.

The Tribunal also made some specific comments about particular iwi and hapu, such as finding that, many years after undertaking to do so, the Crown was both legally and morally obligated to enter into separate negotiations with Ngati Makino. The Tribunal found that this should occur at the same time as the negotiations with the rest of Te Arawa, and that, if Ngati Makino agreed, Waitaha should be invited to join these negotiations.

Finally, the Tribunal noted that claims such as those concerning the Te Arawa mandate would continue to be heard by the Tribunal from time to time. It thus provided some suggested best-practice guidelines which could be used by the Crown and Māori should they wish to develop a Treaty-compliant process for the recognition of mandates to negotiate settlements.

In the months following the release of the Te Arawa Mandate Report in August 2004, several requests for a resumption of the inquiry were made by claimants, on the grounds that the Crown had failed to make an adequate response to the Tribunal's suggestions.

In December 2004, the Tribunal agreed to resume the inquiry. A one day hearing was held on 12 January 2005. The Tribunal reported on the January 2005 hearing in the Te Arawa Mandate Report: Te Wahanga Tuarua, released in March 2005.

At the end of March 2004, the Minister in Charge of Treaty of Waitangi Negotiations and the Minister of Māori Affairs recognised the deed of mandate of the executive council of Nga Kaihautu o Te Arawa to negotiate the settlement of all of Te Arawa’s historical claims. Following that decision, claims concerning the planned settlement negotiations and the recognition of the mandate were filed with the Waitangi Tribunal and the claims were granted urgency. Judge Caren Wickliffe, John Baird, and Gloria Herbert were appointed to hear the claims (with Judge Wickliffe presiding), and a hearing was held in Rotorua in late June 2004. The Te Arawa Mandate Report was released in September 2004.

The report found that the Crown failed to carry out a sufficiently active role in monitoring and scrutinising the Te Arawa mandating process, or in assessing the executive council’s deed of mandate. The Tribunal concluded that issues of representivity and accountability with respect to the executive council had not been thoroughly or fully resolved.

However, the Tribunal stopped short of upholding the claims per se or finding that the Crown acted in breach of the Treaty causing prejudice, since an opportunity remained for matters to be put to right. The Crown had also indicated that it wanted to review the process by which the executive council’s mandate was achieved.

The Tribunal thus suggested that a hui be held of Te Arawa iwi and hapu representatives (elected members of the kaihautu) to debate and vote on issues such as the number of groups to be represented on the executive council, the proportionality of seats across the iwi and hapu, and the question of the degree of accountability of the executive council to the kaihautu.

The Tribunal stated that not only would the Crown be in breach of the Treaty if it made an inadequate response to the Tribunal’s suggested course of action but it would also risk promoting entrenched division within Te Arawa between the executive council and its opponents. Leave was granted to the claimants to return to the Tribunal if the Crown’s response was in fact inadequate.

The Tribunal also made some specific comments about particular iwi and hapu, such as finding that, many years after undertaking to do so, the Crown was both legally and morally obligated to enter into separate negotiations with Ngati Makino. The Tribunal found that this should occur at the same time as the negotiations with the rest of Te Arawa, and that, if Ngati Makino agreed, Waitaha should be invited to join these negotiations.

Finally, the Tribunal noted that claims such as those concerning the Te Arawa mandate would continue to be heard by the Tribunal from time to time. It thus provided some suggested best-practice guidelines which could be used by the Crown and Māori should they wish to develop a Treaty-compliant process for the recognition of mandates to negotiate settlements.

In the months following the release of the Te Arawa Mandate Report in August 2004, several requests for a resumption of the inquiry were made by claimants, on the grounds that the Crown had failed to make an adequate response to the Tribunal's suggestions.

In December 2004, the Tribunal agreed to resume the inquiry. A one day hearing was held on 12 January 2005. The Tribunal reported on the January 2005 hearing in the Te Arawa Mandate Report: Te Wahanga Tuarua, released in March 2005.

The Waitangi Tribunal’s three-volume Te Kāhui Maunga: The National Park District Inquiry Report covers 41 claims spanning the area of Tongariro National Park and selected lands surrounding the park. The Tribunal refers to the people whose claims it heard as ngā iwi o te kāhui maunga. This name acknowledges their close whakapapa ties to one another and to the chiefly cluster of mountains: te kāhui maunga, which include Tongariro, Ngāuruhoe, Ruapehu, Pīhanga, Hauhungatahi, and Kakaramea and which dominate the inquiry’s landscape.

The Tribunal panel for the inquiry was made up of Waitangi Tribunal chairperson Chief Judge Wilson Isaac, the Honourable Sir Douglas Kidd, Professor Sir Hirini Mead, and Dr Monty Soutar. The panel convened 10 hearings between February 2006 and July 2007.

The claims of nga iwi o te kāhui maunga concerned two issues above all: the establishment and management of Tongariro National Park and the creation and operation of the Tongariro power development scheme. In his letter of transmittal that accompanied the final report, released on 12 November 2013, Chief Judge Isaac said that ‘Both of these matters are of national importance and are at the heart of the inquiry’.

The Tribunal found that it was a myth that Horonuku Te Heuheu made a noble gift to the Crown of the peaks of Tongariro, Ngāuruhoe, and Ruapehu. Rather, it found that Ngāti Tūwharetoa made a tuku of their sacred mountains, inviting the Crown to share their taonga as joint owners and trustees. Ngāti Tūwharetoa wanted to work with the Crown, to protect the mountains forever.

The Tribunal found that the Crown did not honour the partnership intended by Horonuku Te Heuheu. Instead, it took the title to the mountains for itself, and established the national park without properly consulting ngā iwi o te kāhui maunga. The Tribunal found that the Tongariro National Park Act 1894 as a whole failed to meet the legitimate expectations of Ngāti Tūwharetoa and was a clear breach of Treaty principles.

The Crown gave no recognition to the interests of Whanganui iwi. The Tribunal found that the Crown ‘effectively confiscated’ lands in which Whanganui and Ngāti Rangi had interests, which included sacred places such as Te Waiamoe – the crater lake on Mount Ruapehu – and Te Ara-ki-Paretetaitonga – the main peak of Mount Ruapehu.

For more than a century now, the Crown has not enabled ngā iwi o te kāhui maunga to exercise their rangatiratanga – their authority – over the park.

The Tribunal found that these actions of the Crown have breached the Treaty principles of reciprocity and good faith and the Crown’s duty of active protection.

The Tribunal recommended that the Crown honour its Treaty obligations and restore the partnership intended by the 1887 tuku by making a new partnership arrangement for the national park. Under this partnership arrangement, Tongariro National Park would be made inalienable, removed from Crown ownership, and taken out of the control of the Department of Conservation. The park would then be held jointly by the Crown and by ngā iwi o te kāhui maunga under a new Act and in a new title. The park would also be managed jointly by a statutory authority comprising representatives from the Crown and ngā iwi o te kāhui maunga.

The second matter at the heart of the claims before the Tribunal was the Tongariro power development scheme, which diverts water from the Whanganui and Tongariro River systems into Lake Rotoaira and releases it downstream to generate electricity.

The Tribunal found that the waterways diverted by the scheme are taonga of great importance to ngā iwi o te kāhui maunga, which never knowingly and willingly gave up possession and control of their waterways. The Tribunal found that the iwi retain development rights in those waterways and that they are entitled to compensation for the past and present use of their taonga to generate electricity, particularly in the case of Lake Rotoaira.

When the Crown set up the Tongariro power development scheme, it met only with Ngāti Tūwharetoa. It did not consult the trustees who administer Lake Rotoaira (which is critical to the scheme) or Whanganui iwi. Because of these failures to consult, the Tribunal found that the Crown did not act honourably, fairly, or reasonably when it established the scheme.

The Tongariro power development scheme has meant losses in water quality, habitat, and kai. Lake Rotoaira, which is a significant taonga of ngā iwi o te kahui maunga, has suffered irreversible damage. Yet, the Crown did not compensate the lake’s owners for the use of their lake for storage or for the impacts of the scheme.

The Tribunal made particular findings about the Crown’s 1972 agreement with the trustees of Lake Rotoaira. Under that agreement, Māori retained title to the lake bed, but the owners had to surrender control of the lake for electricity generation, without compensation. The Tribunal considered that Ngāti Tūwharetoa signed this deed because the Crown both kept them in the dark about the true environmental effects of the Tongariro power development scheme on their lake and fuelled fears that it would take the lake. The Tribunal found that the Crown breached the principle of partnership and considered that it would be unconscionable for the Crown now to refuse to put aside the deed. The Tribunal also proposed a package of measures under which the Crown, local government, and ngā iwi o te kahui maunga might manage waterways together.

The Tribunal’s extensive report covered many other issues, including Crown laws and practices regarding the alienation of land, the operation of the Native Land Court, public works takings, land development, customary fisheries, waterways, and the geothermal resource.

Overall, the Tribunal noted that the Treaty principles of dealing fairly and with utmost good faith had been breached, that substantial restitution was due, and that the quantum should be settled by prompt negotiation.

The Waitangi Tribunal’s three-volume Te Kāhui Maunga: The National Park District Inquiry Report covers 41 claims spanning the area of Tongariro National Park and selected lands surrounding the park. The Tribunal refers to the people whose claims it heard as ngā iwi o te kāhui maunga. This name acknowledges their close whakapapa ties to one another and to the chiefly cluster of mountains: te kāhui maunga, which include Tongariro, Ngāuruhoe, Ruapehu, Pīhanga, Hauhungatahi, and Kakaramea and which dominate the inquiry’s landscape.

The Tribunal panel for the inquiry was made up of Waitangi Tribunal chairperson Chief Judge Wilson Isaac, the Honourable Sir Douglas Kidd, Professor Sir Hirini Mead, and Dr Monty Soutar. The panel convened 10 hearings between February 2006 and July 2007.

The claims of nga iwi o te kāhui maunga concerned two issues above all: the establishment and management of Tongariro National Park and the creation and operation of the Tongariro power development scheme. In his letter of transmittal that accompanied the final report, released on 12 November 2013, Chief Judge Isaac said that ‘Both of these matters are of national importance and are at the heart of the inquiry’.

The Tribunal found that it was a myth that Horonuku Te Heuheu made a noble gift to the Crown of the peaks of Tongariro, Ngāuruhoe, and Ruapehu. Rather, it found that Ngāti Tūwharetoa made a tuku of their sacred mountains, inviting the Crown to share their taonga as joint owners and trustees. Ngāti Tūwharetoa wanted to work with the Crown, to protect the mountains forever.

The Tribunal found that the Crown did not honour the partnership intended by Horonuku Te Heuheu. Instead, it took the title to the mountains for itself, and established the national park without properly consulting ngā iwi o te kāhui maunga. The Tribunal found that the Tongariro National Park Act 1894 as a whole failed to meet the legitimate expectations of Ngāti Tūwharetoa and was a clear breach of Treaty principles.

The Crown gave no recognition to the interests of Whanganui iwi. The Tribunal found that the Crown ‘effectively confiscated’ lands in which Whanganui and Ngāti Rangi had interests, which included sacred places such as Te Waiamoe – the crater lake on Mount Ruapehu – and Te Ara-ki-Paretetaitonga – the main peak of Mount Ruapehu.

For more than a century now, the Crown has not enabled ngā iwi o te kāhui maunga to exercise their rangatiratanga – their authority – over the park.

The Tribunal found that these actions of the Crown have breached the Treaty principles of reciprocity and good faith and the Crown’s duty of active protection.

The Tribunal recommended that the Crown honour its Treaty obligations and restore the partnership intended by the 1887 tuku by making a new partnership arrangement for the national park. Under this partnership arrangement, Tongariro National Park would be made inalienable, removed from Crown ownership, and taken out of the control of the Department of Conservation. The park would then be held jointly by the Crown and by ngā iwi o te kāhui maunga under a new Act and in a new title. The park would also be managed jointly by a statutory authority comprising representatives from the Crown and ngā iwi o te kāhui maunga.

The second matter at the heart of the claims before the Tribunal was the Tongariro power development scheme, which diverts water from the Whanganui and Tongariro River systems into Lake Rotoaira and releases it downstream to generate electricity.

The Tribunal found that the waterways diverted by the scheme are taonga of great importance to ngā iwi o te kāhui maunga, which never knowingly and willingly gave up possession and control of their waterways. The Tribunal found that the iwi retain development rights in those waterways and that they are entitled to compensation for the past and present use of their taonga to generate electricity, particularly in the case of Lake Rotoaira.

When the Crown set up the Tongariro power development scheme, it met only with Ngāti Tūwharetoa. It did not consult the trustees who administer Lake Rotoaira (which is critical to the scheme) or Whanganui iwi. Because of these failures to consult, the Tribunal found that the Crown did not act honourably, fairly, or reasonably when it established the scheme.

The Tongariro power development scheme has meant losses in water quality, habitat, and kai. Lake Rotoaira, which is a significant taonga of ngā iwi o te kahui maunga, has suffered irreversible damage. Yet, the Crown did not compensate the lake’s owners for the use of their lake for storage or for the impacts of the scheme.

The Tribunal made particular findings about the Crown’s 1972 agreement with the trustees of Lake Rotoaira. Under that agreement, Māori retained title to the lake bed, but the owners had to surrender control of the lake for electricity generation, without compensation. The Tribunal considered that Ngāti Tūwharetoa signed this deed because the Crown both kept them in the dark about the true environmental effects of the Tongariro power development scheme on their lake and fuelled fears that it would take the lake. The Tribunal found that the Crown breached the principle of partnership and considered that it would be unconscionable for the Crown now to refuse to put aside the deed. The Tribunal also proposed a package of measures under which the Crown, local government, and ngā iwi o te kahui maunga might manage waterways together.

The Tribunal’s extensive report covered many other issues, including Crown laws and practices regarding the alienation of land, the operation of the Native Land Court, public works takings, land development, customary fisheries, waterways, and the geothermal resource.

The Waitangi Tribunal released The Waimumu Trust (SILNA) Report on 9 May 2005. The claimants are the beneficiaries of the Waimumu Trust, which administers an area of 4440 hectares of indigenous forested land in central Southland, granted to their ancestors under the South Island Landless Natives Act 1906 (SILNA). The claim is about the Forest Amendment Act 2004, which removed their right to export unsustainably logged timber without compensation. This Act arose from the Crown’s indigenous forests and SILNA policies, which the claimants alleged are in breach of the principles of the Treaty of Waitangi. They argued that the removal of the power to export (without compensation) would lead to a loss of some $25 million in potential earnings. The claim was heard urgently at Christchurch in October 2004, with closing submissions in Wellington in November of that year.

The main focus of the urgent inquiry was, in the first instance, the claim that the Forests Amendment Act 2004 had removed the power of the claimants to export unsustainably logged timber, without compensation. The claimants argued that sustainable logging was uneconomic and would in any case only yield them $1.66 million. Unsustainable logging over five years would have earned $25.25 million (a difference of $23.59 million). The Tribunal does not consider this part of the claim to be well founded. The valuations were unsatisfactory, and there does not appear to be an export market for the Waimumu Trust’s timber in any case. There has been no breach of the principles of the Treaty, and no prejudice to the claimants, arising from this part of the Forests Amendment Act 2004.

In terms of the domestic market, claimants and the Crown were in broad agreement that the Resource Management Act 1991 (RMA) has placed strong constraints on the owners’ ability to carry out unsustainable logging. In 2001, the Environment Court accepted the Crown’s contention that the SILNA grants were not in a special category and requiring special treatment. Previously, the Crown considered the SILNA lands to be a special case because they were reserves granted by the Crown in 1906, as partial remedy for its failure to keep its nineteenth-century promises to Ngai Tahu. The Southland District Council also thought at first that the SILNA lands might require special treatment, but this idea had lapsed by the time the Southland District Plan was promulgated. As a result, the RMA is a key constraint on the claimants’ ability to make an economic use of their SILNA lands.

The Forests Amendment Act arose from the Crown’s SILNA and indigenous forest policies, as developed from 1990 to the present day. Parliament’s intention in 1906 was to provide at least a partial remedy for the Crown’s failure to set aside any or adequate reserves for Ngai Tahu in the nineteenth century. The Ngai Tahu Tribunal found that this was not in fact an adequate remedy, and the Crown has settled historical claims relating to these grievances in its Ngai Tahu Claims Settlement Act 1998. None the less, the Crown began negotiations with SILNA owners in the 1990s on the basis that their lands were a special case; a compensatory award, the intent of which would be defeated by its new indigenous forests policy. The Crown’s change of heart on this point, which the Tribunal thinks influenced both the Environment Court and the District Council, was probably inconsistent with both the historical facts and the principles of the Treaty. The Tribunal reached a preliminary view only on this matter, on the basis of the evidence available to it, as it could not conduct a full hearing of the SILNA claims. The Tribunal is satisfied that its preliminary view is sound and will assist claimants and the Crown.

In 2000, the Minister of Forests proposed to compensate all SILNA owners equally and to ensure that such a policy was consistent with the Treaty. His proposal was rejected, partly on the grounds that the historical evidence showed the SILNA awards to be of a different nature than previously thought in the 1990s. Such historical evidence was then subsequently and hastily commissioned. The Tribunal’s preliminary view is that this policy change was probably in breach of Treaty principles.

In terms of the specific Waimumu Trust claim, the Tribunal found that the Crown’s actions in the 1990s created a legitimate expectation that they would receive compensation as a result of a negotiated settlement. This expectation was created by the Framework Agreement for negotiations, and then strengthened by moratorium payments and the settlements of the Waitutu and Rakiura SILNA forest claims. The latter were settled because they have a high conservation value, and the settlements were calculated on the basis of commercial timber values. The Tribunal found that the Crown abandoned negotiations for compensation without the concurrence of the Waimumu Trust. Instead, it imposed conservation orders under the Nature Heritage Fund (NHF) as the only effective alternative remedy. The NHF payments are calculated on a much lower value than the commercial value of the timber, unlike the Waitutu and Raikura settlements. The Tribunal concluded that the Crown’s change of policy has been unfair to the Waimumu Trust and has breached the principles of the Treaty of Waitangi.

Despite this Treaty breach, the claimants have not yet suffered any prejudice. The option of applying to the NHF is still open to them. The Tribunal suggests that the Crown take advantage of this opportunity to review the basis of the NHF payments and ensure a fair outcome for the Waimumu Trust.

The Process to Date

This report is the outcome of an urgent inquiry into the Crown’s policy for the foreshore and seabed of Aotearoa-New Zealand. The many claimant groups represented in the inquiry comprised most of the coastal iwi.1

The urgent inquiry was sought after the Crown announced its response to the Court of Appeal’s decision in the Marlborough Sounds case.2 In that decision, the Court of Appeal departed from the previous understanding that the Crown owned the foreshore and seabed under the common law. This opened the way for the High Court to declare that Maori common law rights in the foreshore and seabed still exist, and for the Maori Land Court to declare land to be customary land under Te Ture Whenua Maori Act 1993.

The Crown supported the claimants’ application for an urgent inquiry, and the timeframes were all tailored to the Crown’s requests. The changing needs of the Crown meant that a proposed hearing in November 2003 was adjourned, and we made time available in January. We tried to balance the need on the one hand for claimants to have sufficient time to prepare for a very significant hearing, and the need on the other for our report to be available to Ministers before planned legislation is introduced. The result was that the hearing took place over six days at the end of January 2004, and we have had four weeks in which to produce our report.

Terminology

From the outset, it is essential to be clear what we are talking about when we refer to the foreshore and seabed. First, what is the foreshore? It is the intertidal zone, the land between the high- and low-water mark that is daily wet by the sea when the tide comes in. It does not refer to the beach above the high-water mark. The seabed is the land that extends from the low-water mark, and out to sea.

The need to distinguish the foreshore from the adjacent dry land and seabed arises from the English common law, which developed distinct rules for that zone. In Maori customary terms, no such distinction exists.

We wanted to take our language out of the English legal paradigm. We raised with Sir Hugh Kawharu, a witness in our inquiry, whether there was a Maori term that clearly embraced the whole of the foreshore and seabed. Te takutai moana was a term that he felt may be variously understood by different groups in different situations. To some, it had more of an inshore connotation, whereas others might understand it as also connoting the high seas. The word papamoana, meaning simply the bed of the sea, did not seem to be as widely used.

We have therefore reluctantly resorted to the English terminology, foreshore and seabed. We recognise, and chapter 1, ‘Tikanga’, makes it very clear, that this terminology is culturally specific.

The Context

The Government’s resolve to step in as soon as the Court of Appeal’s decision was released to implement another regime very quickly, combined with the apparently widespread fear that Maori will control access to the beach, has led to an emotional response across the whole country. It is necessary to have an understanding of complex legal concepts to discuss foreshore and seabed in an informed way. Perhaps that is why the public discourse has generally been so unsatisfying, oversimplifying the issues and thereby distorting them. It appears to us that polarised positions (not necessarily underpinned by good information) have quickly been adopted, and real understanding and communication have been largely absent.

 The Crown released the first version of its foreshore and seabed policy in August 2003. It elicited a storm of protest from Maori. In the following weeks, the Crown held a number of hui around the country to consult with Maori about the policy. We have heard a lot of criticism about the Government’s consultation, but we decided early on that we would not inquire into the alleged deficiencies of that process. We felt that to do so would only be to confirm what everybody already knew: the consultation process was too short; and it was fairly clear that the Government had already made up its mind. The policy was further developed between August and December 2003, but was not changed in any of its essentials.

 The Nature of our Task

In embarking upon our report, we are conscious that while it is our job to consider the Crown’s position on the policy, and the policy itself, in light of the Treaty, ultimately the Government is free to do what it wishes. Our jurisdiction is recommendatory only, and power to govern resides with the Government. We have no say in how much or how little regard is paid to our views. We hope that the Government will properly consider what we have to say and, if it is cogent, will be influenced by it.

As a quasi-judicial body standing outside the political process, we proceed in the expectation that governments in New Zealand want to be good governments, whose actions although carried by power are mitigated by fairness. Fairness is the value that underlies the norms of conduct with which good governments conform - legal norms, international human rights norms, and, in the New Zealand context, Treaty norms. We think that even though governments are driven by the need to make decisions that (ultimately) are popular, New Zealand governments certainly want their decisions to be coloured by fairness. In fact, we think that New Zealanders generally have an instinct for fairness, and that a policy that is intrinsically fair will, when properly explained, ultimately find favour.

We see it as part of our role in the present situation to ensure that the Government has before it all the matters it needs to know in order that its decision-making is fair. In the Waitangi Tribunal, consideration of what is fair is always influenced by the agreements and understandings embodied in the Treaty, but fairness in Treaty terms is not the only relevant norm. There is a fairness that can be distilled independently of the Crown’s commitments under the Treaty, and we think that wider fairness has relevance in the present situation. This is an important theme of our report.

The Policy

The Crown told us that:

    In brief, the Government’s policy seeks to establish a comprehensive, clear and integrated framework which provides enhanced recognition of customary interests of whanau, hapu and iwi in foreshore and seabed, while at the same time confirming that foreshore and seabed belongs to, and is in principle accessible by, all New Zealanders.3

We have closely examined the policy, and the Crown’s claims for it. We have been unable to agree with any of the Crown’s assertions about the benefits that will accrue to Maori. On the other hand, it does seem to us that the policy will deliver significant benefits to others - reinstatement of (effectively) Crown ownership, elimination of the risk that Maori may have competing rights, and the ability of the Crown to regulate everything.

As we see it, this is what the policy does:

    * It removes the ability of Maori to go to the High Court and the Maori Land Court for definition and declaration of their legal rights in the foreshore and seabed.
    * In removing the means by which the rights would be declared, it effectively removes the rights themselves, whatever their number and quality.
    * It removes property rights. Whether the rights are few or many, big or small, taking them away amounts to expropriation.
    * It does not guarantee compensation. This contradicts the presumption at law that there shall be no expropriation without compensation.
    * It understates the number and quality of the rights that we think are likely to be declared by, in particular, the Maori Land Court under its Act. We think that the Maori Land Court would declare that customary property rights exist, and at least sometimes these would be vested as a fee simple title.
    * In place of the property rights that would be declared by the courts, the policy will enact a regime that recognises lesser and fewer Maori rights.
    * It creates a situation of extreme uncertainty about what the legal effect of the recognition of Maori rights under the policy will be. They will certainly not be ownership rights. They will not even be property rights, in the sense that they will not give rise to an ability to sue. They may confer priority in competing applications to use a resource in respect of which a use right is held, but it is not clear whether this would amount to a power of veto.
    * It is therefore not clear (particularly as to outcomes), not comprehensive (many important areas remain incomplete), and gives rise to at least as many uncertainties as the process for recognition of customary rights in the courts.
    * It describes a process that is supposed to deliver enhanced participation of Maori in decision-making affecting the coastal marine area, but which we think will fail. This is because it proceeds on a naive view of the (we think extreme) difficulties of obtaining agreement as between Maori and other stakeholders on the changes necessary to achieve the required level of Maori participation.
    * It exchanges property rights for the opportunity to participate in an administrative process: if, as we fear, the process does not deliver for Maori, they will get very little (and possibly nothing) in return for the lost property rights.

Treaty Breaches and Prejudice

These are fundamental flaws. The policy clearly breaches the principles of the Treaty of Waitangi. But beyond the Treaty, the policy fails in terms of wider norms of domestic and international law that underpin good government in a modern, democratic state. These include the rule of law, and the principles of fairness and non-discrimination.

The serious breaches give rise to serious prejudice:

(a) The rule of law is a fundamental tenet of the citizenship guaranteed by article 3. Removing its protection from Maori only, cutting off their access to the courts and effectively expropriating their property rights, puts them in a class different from and inferior to all other citizens.
(b) Shifting the burden of uncertainty about Maori property rights in the foreshore and seabed from the Crown to Maori, so that Maori are delivered for an unknown period to a position of complete uncertainty about where they stand, undermines their bargaining power and leaves them without recourse.
(c) In cutting off the path for Maori to obtain property rights in the foreshore and seabed, the policy takes away opportunity and mana, and in their place offers fewer and lesser rights. There is no guarantee to pay compensation for the rights lost.

Recommendations

When considering what recommendations to make, we were mindful that many of the claimants accepted that, realistically, there was no prospect of a regime for achieving te tino rangatiratanga over the foreshore and seabed. On the whole, their aspirations were more modest. Most agreed that they would live with the status quo, post-Marlborough Sounds. All, however, said that their most preferred option was for the Government to agree to go back to the drawing board, and engage with Maori in proper negotiations about the way forward. We agree that this would be the best next step, and that is our strong recommendation to the Government.

However, like the claimants, we have sought to be pragmatic. We recognise that the Government may not wish to follow our recommendation. So we offer for consideration further options that we think would ameliorate the Crown’s position in Treaty terms, and at the same time achieve the essential policy objectives of public access and inalienability. Our suggestions are premised on our view that (1) in terms of the legal status quo, the least intervention is the best intervention; and (2) it is critical that the path forward is determined by consensus.

Our Report

In many ways, the Marlborough Sounds case and the Government’s response to it has proved to be a catalyst for new thinking about race relations in our country. Some of that thinking has been positive, but much of it seems to us to have been negative. We recognise that the Government, in coming now to finalise its approach to the foreshore and seabed, has some very difficult decisions ahead.

We have had the opportunity to analyse the issues closely and dispassionately. We sit outside the political arena, so we can test the arguments for their cogency, and probe the legal concepts underlying them, in a way that is neutral but, we hope, rigorous. We were grateful that from the outset, the Crown was keen to have our input, recognising we think that the time for consultation had been short, and that the temperature of public debate militated against genuine exchange of ideas.

We come to these issues with a desire to make a positive contribution. We hope that our report will be of interest and assistance both to Ministers and to the wider public, and that it is not too late for more informed discourse.

He Whakaputanga me te Tiriti: The Declaration and the Treaty is the Tribunal's report on stage 1 of the Wai 1040 Te Paparahi o te Raki inquiry. This inquiry encompasses all territories north of Auckland that have not been the subject of previous Waitangi Tribunal historical reports.

The report is concerned solely with addressing the meaning and effect of:

• he Whakaputanga o te Rangatiratanga o Nu Tireni, and the Declaration of Independence of New Zealand; and

• te Tiriti o Waitangi, and the Treaty of Waitangi, at the time of the first signings in February 1840.

The Tribunal panel for the inquiry was made up of Judge Craig Coxhead, Joanne Morris, Kihi Ngatai, Professor Ranginui Walker, Keita Walker, and Professor Richard Hill. Keita Walker attended the Tribunal's five hearings, convened between May 2010 and February 2011, but was unable to take part in deliberations for the report and so did not sign it.

This Tribunal panel was the first to have had the opportunity to hear and test the full range of evidence about the Treaty's meaning and effect in February 1840.

Based on that evidence, the Tribunal's view is that the agreement reached at Waitangi, Mangungu, and Waimate in February 1840 is to be found in what the signatory rangatira were prepared to agree to, based on the proposals that William Hobson and his agents made to them by reading Te Tiriti, and explaining the proposed agreement, and on the assurances that the rangatira sought and received.

The Tribunal's essential conclusion is that

in February 1840 the rangatira who signed te Tiriti did not cede their sovereignty. That is, they did not cede their authority to make and enforce law over their people or their territories. Rather, they agreed to share power and authority with the Governor. They agreed to a relationship: one in which they and Hobson were to be equal - equal while having different roles and different spheres of influence. In essence, rangatira retained their authority over their hapu and territories, while Hobson was given authority to control Pākehā.

In reaching this conclusion, the Tribunal does not make any findings in respect of claims or make any recommendations to the Crown. It makes no conclusions about the sovereignty that the Crown exercises today or about how the Treaty relationship should operate in a modern context. These are all matters which may be addressed in stage 2 of the Tribunal's inquiry.