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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 Waitangi Tribunal’s He Aha i Pērā Ai? The Māori Prisoners’ Voting Report reports on three claims concerning section 80(1)(d) of the Election Act 1993, which excludes sentenced prisoners, including Māori prisoners, from registering as an elector and thus from being able to vote.

The three claims were brought by Joel Twain McVay, Rhys Warren, Hinemanu Ngaronoa, Sandra Wilde, and Marrissha Matthews (Wai 2472); Carmen Hetaraka on behalf of Ngāti Wai prisoners, Māori prisoners and Māori generally (Wai 2842); and Dr Rawiri Waretini-Karena, Donna Awatere-Huata, and Pirika Tame (Tom) Hemopo (Wai 2867).

The common complaint of the claims was that section 80(1)(d) is inconsistent with the principles of the Treaty of Waitangi and has resulted in significant prejudice to Māori. The claims were heard under urgency.

The Tribunal panel comprised Judge Patrick Savage (presiding officer), Kim Ngarimu, and Ron Crosby. Hearings for the inquiry were held during May 2019.

The Tribunal found that section 80(1)(d) of the Electoral Act 1993 breached the principles of the Treaty. The Tribunal further found that the Crown has failed in its duty to actively protect the right of Māori to equitably participate in the electoral process and exercise their tino rangatiratanga individually and collectively.

The Tribunal also found that disenfranchising Māori prisoners has continued to impact on the individual following their release from prison and that impact extends beyond the individual to their whānau and their community.

The Tribunal made three recommendations:

• the legislation is amended urgently to remove the disqualification of all prisoners from voting, irrespective of sentence;
• the Crown start a process immediately to enable and encourage all sentenced prisoners and all released prisoners to be enrolled in time for the next general election in 2020; and
• a process is implemented to ensure Crown officials provide properly informed advice on the likely impact that any Bill, including members’ Bills, will have on the Crown’s Treaty of Waitangi obligations.

The Kārewarewa Urupā Report is a report by the Waitangi Tribunal into claims lodged about the eponymous urupā by Te Ātiawa/Ngāti Awa ki Kapiti as part of the Tribunal’s Porirua ki Manawatū inquiry. The panel that heard the claim comprised Deputy Chief Judge Caren Fox (presiding), the Honourable Sir Douglas Kidd KNZM, Dr Grant Phillipson, Tania Te Rangingangana Simpson, and Dr Monty Soutar. The claim was heard as part of the Te Ātiawa/Ngāti Awa hearings.

The Kārewarewa urupā is the resting place for many of those killed in the historically important battle of Kuititanga in 1839, as well as prominent ancestors of Te Ātiawa/Ngāti Awa. The land on which the urupā was located eventually became the Ngārara West A14B1 block but was never formally set apart as a Māori reservation.

In 1968, a meeting of owners of the block was called under the Māori Affairs Act 1953 to vote on a resolution to sell the land to a development company. Although just 13 of the 77 owners were present in person or by proxy, the statutory regime of the time allowed small minorities of owners to sell the land of the majority without their knowledge or consent. The owners were also incorrectly advised that the block was not the urupā block, and as a result they voted to sell it to the Waikanae Land Company.

The company in turn applied to the Horowhenua County Council for a district plan change in order to remove the ‘Māori Cemetery’ designation and develop the land for housing. Over the objections of tribal leaders, the council revoked the designation.

During the 1970s, about 350,000 cubic metres of dredged material from the adjacent wetland was dumped on top of the block, and streets and houses were built on more than half of the land. Work stalled in the late 1970s when the Waikanae Land Company went into receivership, but attempts were made to resume housing development in the 1990s. However, the discovery of kōiwi (human remains) halted that. The claimants remained deeply concerned at the prospect of further disturbance to the burial ground.

The Tribunal found that the statutory regime in 1968 deprived owner groups of their tino rangatiratanga over their land and breached the Treaty principles of partnership and active protection, that the Town and Country Planning Act 1953 was inconsistent with Treaty
principles, and that the Burial and Cremation Act 1964 gave little or no protection to Māori burial grounds. It also found that there were systemic Treaty breaches in the processes for exploratory authorities and the requirements of section 56 of the Heritage New Zealand Pouhere Taonga Act 2014.

The Tribunal recommended that the Māori Heritage Council lead a review of the statutory timeframes for section 56 applications and that section 56 be amended to require an assessment of Māori values in the case of wāhi tapu and an assessment of the impact of the invasive exploratory investigation on those values.

The Whakatōhea Mandate Inquiry Report was released in pre-publication form on 17 April 2018. It was the outcome of an inquiry into 12 claims relating to the Crown’s recognition of the Whakatōhea Pre-settlement Claims Trust (the Pre-settlement Trust) as having a mandate to enter negotiations to settle the historical Treaty of Waitangi claims of Whakatōhea.

The hearings, held under urgency, took place at Whakatāne on 6–10 and 21–22 November. The panel appointed to hear the claims comprised Judge Michael Doogan (presiding), Associate Professor Tom Roa, Dr Robyn Anderson, and Mr Basil Morrison.

The Crown recognised the Pre-settlement Trust mandate in December 2016 and then moved quickly into substantive negotiations. The Pre-settlement Trust and the Crown entered into an agreement in principle in August 2017.

The claimants’ central complaint was that the Crown had breached the principles of the Treaty of Waitangi by failing to actively protect the ability of hapū and Waitangi Tribunal claimants to exercise their rangatiratanga in determining how they would settle their historical claims. Significant concerns were also raised about the process by which the mandate was recognised.