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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.