Rapua ngā tuhinga ruku tātari

The Ngāti Kahu Remedies Report, released in March 2013, is the outcome of an application for remedies by Ngāti Kahu, a claimant iwi in the Muriwhenua land inquiry (Wai 45). The application, filed in October 2007, asked the Tribunal to use its potentially binding powers requiring the Crown to return a series of properties to them, including former Crown properties now in private ownership. The application was adjourned until March 2010 to enable ongoing settlement negotiations with the Crown but was revived by Ngāti Kahu on 15 July 2011.

The Muriwhenua land inquiry was held between 1990 and 1994. In 1997, the Tribunal released its Muriwhenua Land Report. The Tribunal found the claims of Muriwhenua iwi, including Ngāti Kahu, to be well-founded in relation to acts and omissions of the Crown up to 1865, by which time a significant proportion of land in the region had been alienated. Consequently, the Tribunal’s hearing on the Ngāti Kahu remedies application was restricted to their well-founded claims.

The panel members for the Ngāti Kahu remedies hearing were Judge Stephen Clark (presiding officer), Joanne Morris, Dr Robyn Anderson, and Professor Pou Temara. Hearings were held at Kareponia Marae, Awanui, just north of Kaitaia from 3 to 7 September 2012. Closing submissions of the parties were heard on 18 and 19 September 2012 in Auckland.

The Tribunal found that redress for the wrongful dispossession of 70 per cent of Ngāti Kahu lands by 1865 was long overdue. However, owing to the circumstances of wider Treaty settlement negotiations in the region, the Tribunal concluded that the use of its binding powers was not warranted. A central consideration in arriving at this conclusion was the relationship of the five main iwi of the Muriwhenua region: Ngāti Kahu, Te Rarawa, Te Aupōuri, Ngāi Takoto, and Ngāti Kuri. These iwi, though autonomous in their own right, have common ancestral origins and shared whakapapa, which had been reflected in their approach to the Muriwhenua land inquiry, when the five iwi brought their claims to the Tribunal jointly and prosecuted their claims collectively. The iwi subsequently pursued separate settlements of their claims with the Crown. However, the iwi returned to a more collective approach from 2008 to resolve issues of intertwined and competing claims to Crown-owned land and assets which had prevented any settlement from being reached. Ultimately dissatisfied with what they could achieve through settlement negotiations with the Crown, Ngāti Kahu withdrew from those negotiations and applied to the Tribunal for remedies. In doing so, they risked the settlements that Te Aupōuri, Te Rarawa, and Ngāi Takoto had agreed with the Crown as Ngāti Kahu sought the return of land earmarked for return to these iwi.

‘A well-established Treaty principle has it that the Crown should not, in remedying the grievance of one group, create a fresh grievance for another group’, presiding officer Judge Stephen Clark said in his accompanying letter to the Minister of Māori Affairs.

The Tribunal, instead, made a series of non-binding recommendations to the Crown. If agreed to by the parties, these recommendations would provide for the restoration of the economic and cultural well-being of Ngāti Kahu. These included the return of a number of sites of ancestral importance, including wāhi tapu, and a series of governance arrangements to allow Ngāti Kahu to have a significant say in the administration of other sites, as well as establishing relationships with local bodies and other institutions. Further recommendations included cash payments designed to revitalise the iwi, both culturally and socially, and an opportunity to assume ownership of a range of commercial properties, to assist in re-establishing the commercial base of the iwi.

The urgent inquiry was triggered by the publication in 2011 of the report of the Early Childhood Education Taskforce, which, the claimants said, had not been consulted with them and had seriously damaged their reputation. The report, and Government policy development based on it, would cause irreparable harm to the kōhanga reo movement. The Tribunal endorsed the conclusion of the Wai 262 Tribunal’s report, Ko Aotearoa Tēnei, that urgent steps were needed to address recent Crown policy failures if te reo is to survive. The Tribunal noted that survival requires both Treaty partners – Māori and the Crown – to collaborate in taking whatever reasonable steps are required to achieve the shared aim of assuring the long-term health of te reo as a taonga of Māori.

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 Mangatū Remedies Report, released in June 2014, is the outcome of applications for remedies by four claimant groups from Tūranganui-a-Kiwa (Gisborne). These groups – the Mangatū Incorporation (Wai 1489), Te Aitanga a Māhaki and Affiliates (Wai 274 and Wai 283), Ngā Ariki Kaipūtahi (Wai 499, Wai 507, and Wai 874), and Te Whānau a Kai (Wai 892) – asked the Tribunal to use its potentially binding powers to require the Crown to return to them all or part of the Mangatū Crown forest licensed lands within the Tūranga inquiry district.

The Tribunal held its inquiry into the historical claims of Tūranga Māori between 2001 and 2002. In 2004, the Tribunal released Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims. The Tribunal found that all of the iwi and hapū groups who had appeared before it had been prejudicially affected by wide-ranging Treaty breaches deriving from Crown conduct and policies in the nineteenth and twentieth centuries. The Tribunal noted especially the substantial loss of life and land suffered by Tūranga Māori.

The Mangatū Incorporation filed an application for an urgent remedies inquiry on 31 July 2008, seeking return of 8,522 acres of land in the Mangatū 1 block purchased by the Crown in 1961 for afforestation purposes. The Incorporation sought an urgent inquiry because an Agreement in Principle was expected to be signed by the Crown and Tūranga Māori in August 2008, the result of settlement negotiations that had commenced shortly after the release of the Tribunal’s Tūranga report. That agreement proposed the return of the Mangatū Crown forest licensed lands to the wider hapū grouping as commercial redress, including the land purchased from the Incorporation in 1961. The Incorporation, however, considered that the 1961 land should be returned to the Incorporation owners, and asked the Tribunal to use its binding powers to do so.

The Tribunal initially declined the Incorporation’s application for an urgent hearing. However, the Incorporation sought judicial review of the Tribunal’s decision and, on 19 May 2011, the Supreme Court directed the Tribunal to hear the Mangatū Incorporation remedies application urgently. Following this, the three other applicants – who represent the claims of hapū and iwi involved in the original Tūranga district inquiry – also lodged applications for binding recommendations.

The panel members for the Mangatū remedies hearing were Judge Stephanie Milroy (presiding officer), Tim Castle, Wharehuia Milroy, and Dr Ann Parsonson. Two weeks of hearings were held in Gisborne in June and October 2012. Closing submissions of the parties were heard in November 2012 in Wellington.

The Tribunal found that all four applicants had well-founded claims that were deserving of redress. However, the Tribunal did not consider that binding recommendations were appropriate in the circumstances and so declined to make the recommendations sought. In particular, it could not be certain that binding recommendations would provide redress proportionate to the prejudice suffered by the claimants. As a result, the Tribunal was unable to make recommendations that would be fair and equitable between the four groups. The Tribunal was concerned that redress which seemed to favour one group over others would risk creating fresh grievances, and might undermine the chances of achieving a durable Treaty settlement of the claims.

The Tribunal strongly urged all the applicants to reunite and return to settlement negotiations with the Crown. The Tribunal reiterated its preference that redress for well-founded claims should be negotiated with the Crown. In the report, the Tribunal said: ‘Any compromises that are made, and all settlements require compromises, should be made by the hapū and iwi involved – they are the ones with the mana and rangatiratanga to make such agreements, not the Tribunal.’ It emphasised that negotiations allow all parties much more flexibility than binding recommendations to develop a satisfactory settlement package.

The Final Report on the MV Rena and Motiti Island Claims, originally released in pre-publication format in November 2014, is the outcome of two claims: Wai 2293 from the Ngāi Te Hapū Incorporated Society and Wai 2291 from the Motiti Rohe Moana Trust and the Mataatua District Māori Council. Both claims related to alleged Crown conduct in relation to the removal of the MV Rena from Otaiti (Astrolabe Reef) near Motiti Island.

The Tribunal held an urgent hearing in Tauranga from 30 June to 2 July 2014. The panel appointed to hear the claims comprised Judge Sarah Reeves (presiding), Ron Crosby, the Honourable Sir Douglas Kidd, and Professor Sir Tamati Reedy.

In October 2012, the Crown signed three deeds with the Rena owners to settle its claims for $27.6 million. The Tribunal’s final report focuses on the Crown’s conduct in entering one of those deeds, the wreck removal deed, which obliged the Crown to consider, in good faith, supporting an application by the owners for resource consent to leave the wreck on the reef. Such an application was lodged on behalf of the Rena owners in May 2014.

In the report, the Tribunal found that the obligations the Crown incurred under the wreck removal deed placed the Rena owners in a special position in the resource consent process in a way that had the potential to significantly affect Māori interests in Otaiti. Further, the Tribunal found that the Crown had signed the deed without having sufficient knowledge of Māori interests in the reef and without having consulted Māori, despite it being both practical and necessary for it to have done so.

The Tribunal considered that the Crown, by opting in August 2014 to partially oppose the Rena owners’ resource consent application, avoided the primary prejudice that could have arisen from its conduct in entering the wreck removal deed. However, the Tribunal also found that the Crown’s conduct diminished the Treaty partnership to the detriment of Māori and so prejudicially affected the claimants.

The Tribunal therefore found that the Crown’s conduct in entering the wreck removal deed without having consulted Māori breached the Treaty principles of partnership and mutual benefit. The Crown failed in its duty to act reasonably, honourably, and in good faith. The Tribunal made recommendations designed to remedy the prejudice that this caused the claimants.

The Tribunal’s final report followed an interim report released in July 2014 in anticipation of an all-of-government response to the owners’ resource consent application. In that report, the Tribunal found that the Crown’s consultation process with Māori as it prepared to decide its position on the owners’ resource consent application had breached the principles of good faith and partnership. The Tribunal’s interim report is included as an appendix to its final report.

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.

Whaia Te Mana Motuhake/In Pursuit of Mana Motuhake: Report on the Māori Community Development  Act Claim, released on 5 December 2014, is the outcome of Wai 2417, a claim brought by the co-chairs of the New Zealand Māori Council and representatives of district Māori councils.
The claim focused on two issues: the Crown’s ongoing review of the Māori Community Development Act 1962 and the Crown’s role in the development and administration of the Māori wardens project, launched in 2007.
The Tribunal held an urgent hearing at Pipitea Marae in Wellington from 18 to 20 March 2014. The panel appointed to hear the claims comprised Deputy Chief Judge Caren Fox (presiding), Ron Crosby, Miriama Evans, Sir Hīrini Moko Mead, and Tania Simpson.
The Māori Community Development Act governs the New Zealand Māori Council, the district Māori councils, and Māori wardens. In 2009, the Minister of Māori Affairs instructed Te Puni Kōkiri / the Ministry of Māori Development to carry out a review of the Act. A report by the Māori Affairs select committee in 2010 recommended changes to the Act but advised that extensive consultation should be carried out with Māori before any proposed reforms were introduced.
In 2013, Te Puni Kōkiri decided to proceed with consultation hui on the 1962 Act, despite the objections of the newly appointed New Zealand Māori Council that it should be allowed to lead the review into its legislation. The Tribunal found that Te Puni Kōkiri’s decision to continue consultations in September 2013 was in contravention of Treaty principles.
The Tribunal also looked at the Crown’s development and administration of the Māori wardens project. The project, launched in 2007, provides funding, training, vehicles, and uniforms to support the voluntary community work of Māori wardens.
Originally, an advisory group and then a governance board provided Māori community oversight of the project, but since early 2011 this critical supervision has been absent. The Tribunal found this lack of provision for Māori community input breached the principles of the Treaty.
The Tribunal recommended that any future review of the Māori Community Development Act be led by Māori – specifically the New Zealand Māori Council – and that all reasonable costs flowing from the review and consultation process should be met by the Crown. Once the council had developed its own proposals for legislative reform and carried out extensive consultation with Māori communities, then it and the Crown should collaborate to reach a negotiated agreement.
The Tribunal further recommended that the Māori wardens project continue but that an interim advisory group or governance board be appointed from among the New Zealand Māori Council and Māori wardens to provide Māori community oversight of the funding, training, and other support delivered under the project.