Rapua ngā tuhinga ruku tātari

The Maniapoto Mandate Inquiry Report was originally released in pre-publication form on 11 December 2019. It was the outcome of 10 claims made on behalf of individuals, whānau, hapū and hapū collectives. The central issue in this inquiry was whether the Crown breached the Treaty of Waitangi in recognising the Maniapoto Māori Trust Board’s mandate to negotiate the Ngāti Maniapoto settlement of historic Treaty claims with the Crown.

The hearings, held under urgency, took place in Hamilton in July 2019 with closing submissions heard in September 2019. The panel appointed to hear the claims was comprised of Judge Sarah Reeves (presiding officer), Professor Pou Temara and Dr Aroha Harris.

In December 2016, the Crown officially recognised the Maniapoto Māori Trust Board as having secured a mandate from the people of Ngāti Maniapoto to enter settlement negotiations on their behalf. The claimants alleged that the Crown’s actions, in particular the implementation of the ‘Broadening the Reach’ strategy and insufficient opportunities to voice opposition, prevented the claimants from asserting their tino rangatiratanga.

Another central theme of opposition to the Maniapoto Māori Trust Board’s mandate was that its deed of mandate did not make appropriate accommodation for hapū rangatiratanga, in contrast to the structure and approach of the entity originally established to seek the mandate, Te Kawau Mārō. Furthermore, some claimants took specific issue with either the absence or inclusion of their whānau, hapū and Te Rohe Pōtae historical claims in the claimant definition set out in the deed of mandate.

In the report, the Tribunal’s overall finding was that the Crown’s recognition of the Maniapoto Māori Trust Board’s mandate was reasonable given the Trust Board’s level of support, infrastructure and extensive involvement in previous settlements. It was also reasonable given that, prior to September 2016, the Crown had conducted lengthy discussions in good faith with Te Kawau Mārō.

However, the Tribunal found that aspects of the process to recognise the Maniapoto Māori Trust Board’s mandate were not fair nor undertaken in good faith. In particular, the Crown’s implementation of ‘Broadening the Reach’ and its fluctuating position concerning the inclusion of Ngāti Apakura in the deed of mandate breached the principles of partnership, reciprocity and equal treatment. The Tribunal concluded that ‘Broadening the Reach’ in particular prioritised the Crown’s political objectives to complete settlements within a shorter timeframe over its Treaty relationship with Ngāti Maniapoto.

The Tribunal also found that the Maniapoto Māori Trust Board deed of mandate was largely adequate for the purpose of negotiations, provided that the Crown made some amendments to the claimant definition and withdrawal mechanism.

The Tribunal did not recommend a halt to negotiations. Instead it recommended that the Crown provide distinct recognition in the deed of mandate for certain hapū, give serious thought to post-settlement governance entity options to manage and distribute the Ngāti Maniapoto settlement, adjust the resourcing and quantum for the settlement to account for the re-inclusion of Ngāti Apakura, amend the remedies clauses in the deed of mandate, and actively have regard to its whanaungatanga obligations to Ngāti Maniapoto Māori in the Treaty settlement process.

The Report on the Crown’s Review of the Plant Variety Rights Regime, released in May 2020, is the Tribunal’s stage 2 report for the Trans-Pacific Partnership Agreement inquiry (Wai 2522).

The original claims for this inquiry were lodged in June 2015 by Dr Papaarangi Reid, Moana Jackson, Angeline Greensill, Hone Harawira, Rikirangi Gage, and Moana Maniapoto. Negotiations for the Trans-Pacific Partnership Agreement (TPPA) were underway when the claims were lodged.

The Tribunal decided to hear the claims in stages, and the stage 1 report, the Report on the Trans-Pacific Partnership Agreement, was released on 5 May 2016.

For stage 2, the Tribunal considered whether the Crown’s process for engagement over the plant variety rights regime and its policy on whether or not New Zealand should accede to the Act of 1991 International Union for the Protection of New Varieties of Plants were consistent with its Tiriti/Treaty obligations to Maori. The panel comprised Judge Michael Doogan (presiding), David Cochrane, Tā Hirini Moko Mead, Kim Ngarimu, and Tania Simpson, and the hearings took place from 4 to 6 December 2019.

The claimants said that the Crown’s process for engagement over the plant variety rights regime, and its policy on how to address UPOV 1991, were not consistent with its Tiriti/Treaty obligations of partnership and protection. The Crown argued that its engagement process, consistent with its CPTPPA obligations, was Tiriti/Treaty compliant. The Crown further argued that the outcomes of the review met, and exceeded, the relief originally sought by the claimants in this inquiry and that it has implemented the relevant Tribunal guidance as to what is necessary to meet its Tiriti/Treaty obligations.

The Tribunal found that the claims of Tiriti/Treaty breach in relation to these issues were not made out, and it supported certain aspects of the Crown’s policy. The Tribunal welcomed Cabinet’s decision to not only implement the relevant findings and recommendations of the Tribunal’s 2011 Ko Aotearoa Tēnei report but go further and provide additional measures to recognise and protect the interests of kaitiaki in taonga species and in non-indigenous species of significance.

On Tuesday 30 June 2020, the Waitangi Tribunal released The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry: Stage 1 Report in pre-publication format.

The inquiry was accorded high priority, reflecting the importance of the customary rights at stake and the immediacy of the Marine and Coastal Area (Takutai Moana) Act's alleged impacts on Māori.

The Act replaced its controversial predecessor, the Foreshore and Seabed Act 2004. Under the Marine and Coastal Area (Takutai Moana) Act, Māori can obtain legal rights recognising their customary interests in the form of either customary marine title or protected customary rights. Two application pathways are provided: Māori can either engage directly with the Crown or apply to the High Court for a recognition order. They can also choose to do both. In either pathway, applications for customary rights had to be filed by the statutory deadline of 3 April 2017.

The Tribunal’s report concludes stage 1 of a two-part inquiry. The first stage has considered whether the procedural and resourcing arrangements put in place by the Crown to support the Act are Treaty-compliant and prejudicially affect Māori. The Tribunal received 92 claims for the inquiry, and a further 75 parties were granted interested party status. Hearings were held from 25 March 2019 to 2 August 2019 before an inquiry panel comprising Judge Miharo Armstrong (presiding), Ron Crosby, Dr Hauata Palmer, and Professor Rawinia Higgins. Stage 2 of the inquiry will examine whether the broader statutory and policy issues relating to the Act itself breach Treaty principles and prejudice Māori.

In its report, the Tribunal found that the Crown did act reasonably, in good faith, and consistently with its Treaty obligations in implementing some aspects of the Act’s supporting regime. The Tribunal was also encouraged to hear that the Crown would be conducting a comprehensive review of the funding regime, with input from applicants.

Notwithstanding these positive signs however, the Tribunal found that many aspects of the Act’s supporting procedural and resourcing arrangements fell well short of Treaty-compliance and cause Māori significant and ongoing prejudice.

The Tribunal therefore recommended that the Act’s procedural and resourcing arrangements be amended to give effect to Treaty principles. Further recommendations included,urgently addressing a policy vacuum that continued to impede both the operation of the Crown engagement pathway itself and the cohesion of the two pathways and addressing funding arrangements for claimants.

The report concludes by noting that Māori would continue to be prejudiced until the Crown took steps to make the Act’s supporting procedural and resourcing arrangements fairer, clearer, more cohesive, and consistent with the Crown’s obligations as a Treaty partner.

The report He Pāharakeke, he Rito Whakakīkinga Whāruarua: Oranga Tamariki Urgent Inquiry is the result of an urgent inquiry into allegations concerning the contemporary actions of Oranga Tamariki. In October 2019, the Waitangi Tribunal had granted an application for urgency and had confirmed that the inquiry would focus on three issues:

• Why had there been such a significant and consistent disparity between the number of tamariki Māori and non-Māori children being taken into State care under the auspices of Oranga Tamariki and its predecessors?
• To what extent would the legislative policy and practice changes introduced since 2017, and then being implemented, change this disparity for the better?
• What (if any) additional changes to Crown legislation, policy, or practice might be required in order to secure outcomes consistent with Te Tiriti/the Treaty and its principles?

The panel for the inquiry consisted of Judge Michael Doogan (presiding), Professor Rawinia Higgins, Kim Ngarimu, and Professor Pou Temara. The hearings commenced in July 2020 and continued in October, November, and December, with closing submissions convened in February 2021.

The Tribunal came to the view that the disparity between the number of Māori and non-Māori entering care could be attributed, in part, to the effect of alienation and dispossession, but also because of a failure by the Crown to honour the guarantee to Māori of the right of cultural continuity embodied in the guarantee of tino rangatiratanga over their kāinga.

The Tribunal’s primary recommendation was that the Crown step back from further intrusion into what was reserved to Māori under te Tiriti/the Treaty and allow Māori to reclaim their space. In addition, the Tribunal recommended that a Māori transition authority be established. The primary function of this authority would be to identify the changes necessary to eliminate the need for State care of tamariki Māori.

In the Mangatū Remedies Report 2021, released today (1 October 2021), the Waitangi Tribunal  makes an interim recommendation under section 8HB of the Treaty of Waitangi Act 1975 that the Crown return to Māori ownership the Mangatū Crown forest land in the Tūranganui a Kiwa district, together with monetary compensation.

During 2018 and 2019, the Tribunal heard remedies applications seeking such a recommendation from several claimant groups: Te Aitanga a Māhaki and the Mangatū Incorporation, Ngā Uri o Tamanui, and Te Whānau a Kai. Another group, Te Rangiwhakataetaea–Wi Haronga–Ngāti Matepu, participated in the remedies inquiry as an interested party. The Tribunal had previously inquired into the claims of Te Aitanga a Māhaki, Ngā Uri o Tamanui, and Te Whānau a Kai in the Tūranga district inquiry, reporting on them in the 2004 Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims. In that report, the Tribunal made findings on Crown Treaty breaches in the district, ranging from the attack on the defensive pā at Waerenga a Hika in 1865 to the Crown’s acquisition in 1961 of parts of the land now comprising the Mangatū Crown forest licensed land.

In this subsequent remedies inquiry, the Tribunal was required to decide whether to recommend the return of land as a remedy for the claimants’ well-founded claims that relate to the Mangatū Crown forest licensed land. If the Tribunal determined that the land should be returned to Māori, it would then have to decide how much and to which claimant groups. Under section 36 of the Crown Forest Assets Act 1989, and schedule 1 to that Act, the return of Crown forest licensed land to Māori ownership is also accompanied by monetary compensation. The value of the available compensation is tied to the value of the of the cutting rights for the Mangatū Crown forest, which were sold by the Crown in 1990. The Tribunal has a discretion to award between 5 and 100 per cent of the available compensation.

In the Mangatū Remedies Report 2021, the Tribunal determines that Te Aitanga a Māhaki and the Mangatū Incorporation, Ngā Uri o Tamanui, and Te Whānau a Kai have well-founded claims that relate to the Mangatū Crown forest land. The relevant claims address Crown Treaty breaches that led to the loss of the claimants’ tino rangatiratanga and mana whenua in that land. The claims concern both the specific circumstances in which the land was lost from Māori ownership, as well as the Crown’s wider actions that were specifically designed to destroy Māori autonomy and control over their lands in Tūranga.

As a remedy for the prejudice suffered by the claimants, the Tribunal determines that the whole of the Mangatū Crown forest licensed land should be returned to Te Aitanga a Māhaki, Ngā Uri o Tamanui, and Te Whānau a Kai. The claimants should receive the full financial compensation available under schedule 1 to the Crown Forests Assets Act. The Mangatū land should be returned to a collective trust to be established by the claimants, called the Mangatū Forest Collective Trust. The trust’s beneficiaries would be the legally recognised governance entities that Te Aitanga a Māhaki Trust, Ngā Uri o Tamanui, and Te Whānau a Kai established following the 2018 remedies hearings, and which were ratified by the claimant communities.

Following the release of this report, claimant parties and the Crown have a period of 90 days to begin to negotiate the settlement of their claims. If an alternative agreement is reached through these negotiations, the Tribunal will cancel or modify its interim recommendation as necessary. Otherwise, after the 90 days has passed, the Tribunal’s interim recommendation becomes binding on the Crown.

The Mangatū Remedies Inquiry panel comprises Judge Stephanie Milroy (presiding), Tim Castle, Dr Ann Parsonson, and Ahonuku Tom Roa. Hearings were held in Gisborne and Wellington between August 2018 and July 2019.

Tribunal decision concerning Treaty settlement with Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua and the trustees of the Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua Settlement Trust

‘Ka ngahae ngā pī, ko Waikanae.’

‘Staring in amazement, hence Waikanae.’

—Haunui-a-Nanaia

The Waitangi Tribunal’s Waikanae: Report on Te Ātiawa/Ngāti Awa Claims was released on 15 December 2022 in pre-publication format. The report concerns 17 claims made by whānau, hapū, and iwi organisations of Te Ātiawa/Ngāti Awa ki Kāpiti – an iwi based on the west coast of the lower North Island with strong ties to Taranaki.

These claims focused on land, cultural sites, and resources of the iwi’s traditional rohe, which covers modern-day Waikanae and Paraparaumu, with interests as far south as Paekākāriki. The claims were heard as part of the Porirua ki Manawatū district inquiry (Wai 2200), over the course of five hearings in 2018 and 2019. The panel that heard these claims was led by Presiding Officer Deputy Chief Judge Caren Fox and included Tribunal members Tania Simpson, Sir Douglas Kidd, Dr Monty Soutar, and Dr Grant Phillipson.

In this report, the Tribunal found that the Crown’s treatment of Te Ātiawa/Ngāti Awa during the nineteenth and twentieth centuries breached the principles of the Treaty of Waitangi, resulting in significant prejudice that is still felt today. Despite the promises of protection and partnership made by Governor George Grey to Te Ātiawa/Ngāti Awa in the 1840s, today the iwi is virtually landless. The Crown conceded that this landlessness was the cumulative effect of its acts and omissions and that this had a ‘devasting impact’ on the iwi.

The Tribunal accepted these concessions and identified several other important Treaty breaches:

• It found that the Crown breached the Treaty in its 1858 and 1859 purchases of the Wainui and Whareroa blocks by failing to inquire who owned the land before purchasing, by imposing the purchases on non-sellers without consent, and by making inadequate reserves for their present and future needs. The Tribunal also held that the Crown breached the Treaty when it threatened Waikanae tribal leaders with land confiscation if they continued to support the Māori King movement in the 1860s.
• The Tribunal also found that the Crown’s native land laws breached Treaty principles between 1870 and 1900. These laws converted tribal customary rights into a finite list of individuals. Those individuals had the power to partition or to sell but no power at the time to establish a body to manage their lands collectively. The Crown failed to give a proper remedy when Te Ātiawa/Ngāti Awa petitioned Parliament about their grievances in the 1890s. Also, the Crown did not give Māori landowners the same access to cheap development loans as non-Māori. As a result of all these breaches, there was rapid loss of land between 1891 and 1930. Most Te Ātiawa/Ngāti Awa owners were virtually landless before 1930. Māori land ownership at Waikanae and Paraparaumu was further reduced in the 1960s by the Crown’s failure to prevent compulsory sales of Māori land for the non-payment of rates, even where the land did not produce revenue. This was a breach of the Treaty.
• The Crown was also found in breach of the Treaty for its compulsory public works takings of land for the Paraparaumu Aerodrome (now the Kāpiti Coast Airport) in the 1930s and 1940s. The Crown then failed to protect the interests of the original owners when privatising the airport in 1995. The Crown also failed to properly consider offering surplus land back to the original owners before selling the airport to a private company. The Crown conceded that it failed to protect the original owners’ rights when the airport company sold land in 1999, in breach of the Treaty.
• Regarding the Waikanae River, the Tribunal found that Te Ātiawa/Ngāti Awa never intended to relinquish their rights to this important taonga, but the river bed was alienated from the iwi as a result of individual titles and surveying practices. This was a breach of the Treaty. The iwi’s control of the river was further undermined by actions of local government, enabled under legislation.
• The Crown also breached Treaty principles through the Town and Country Planning Act 1953, which allowed the Waikanae town centre to be sited on top of Te Ātiawa/Ngāti Awa homes without adequate consultation or consideration of Māori interests. On balance, the Tribunal also found that the Crown acquired the land for the Hemi Matenga Memorial Park, which is on the hillside above Waikanae township, in breach of the Treaty, and that today the claimants are unable to exercise tino rangatiratanga and kaitiakitanga over this taonga as the Treaty partnership requires.

To address the harm caused by the Crown’s Treaty breaches, the Tribunal recommended that the Crown urgently negotiate a Treaty settlement with Te Ātiawa/Ngāti Awa. Within these negotiations, the Crown should consider restoring legal ownership of Hemi Matenga Memorial Park and creating a co-governance arrangement for its management. The Tribunal also recommended that the Crown amend the offer-back procedures of the Public Works Act 1981, which prejudiced the former owners of Kāpiti Coast Airport lands.

In April 2022, the Waitangi Tribunal confirmed it would inquire into allegations concerning claimant funding in its jurisdiction as a first step in the newly constituted inquiry into the justice system, Te Rau o te Tika. The inquiry panel comprises Judge Carrie Wainwright (presiding), Dr Paul Hamer, Dr Ruakere Hond, and Dr Hana O’Regan. Their resulting report, Whakatika ki Runga, a Mini-inquiry Commencing Te Rau o te Tika: The Justice System Inquiry, focuses on the following four main issues:

• Whether claimants before the Waitangi Tribunal have a right to funding to enable their full participation.
• Whether the Crown accepts, as a matter of principle, that it has an obligation to fund claimants’ participation.
• The adequacy of the Crown’s ‘lead agency approach’ to funding claimants in kaupapa inquiries.
• The adequacy of legal aid under the Legal Services Act 2011 for claimants in the Waitangi Tribunal.

The Tribunal received 53 claims for the inquiry, and 37 parties were granted interested party status, including the Crown Forestry Rental Trust. Three hearings were held in Porirua and Wellington in July, September, and October 2022. The Tribunal heard from over 40 claimant witnesses, including 11 Crown witnesses from eight separate Government agencies, the former president of the New Zealand Law Society, and the Crown Forestry Rental Trust.
The Tribunal found that the Crown breached its Treaty duty to ensure that Māori claimants have the necessary resources to participate fully in all Waitangi Tribunal processes. It was particularly concerned that officials knew about the inadequacies of the present funding arrangements, but Ministers did not act on their advice.

The Tribunal observed that the unavailability of adequate funding compromises claimants’ ability to make and pursue their Tribunal claims, which undermines the Tribunal as a pillar of New Zealand’s constitution. It reinforced that it is the Crown’s responsibility under the Treaty, and under its own Treaty of Waitangi Act 1975, to ensure that claimants can access Tribunal processes easily.

The Tribunal recommended that the Crown and Māori co-design suitable funding arrangements. Until long-term arrangements are agreed, the Tribunal also recommended that the Crown impose a standardised funding protocol for all kaupapa and contemporary inquiries.
The Tribunal further found that claimants and their lawyers have a right to file submissions and evidence in te reo Māori and have them translated into English without cost or inconvenience to them. The Crown and the Waitangi Tribunal Unit must support the use of te reo Māori in the Tribunal, whether orally or in writing.

The Tribunal found that various administrative issues with legal aid in Tribunal proceedings meant that the system falls short in terms of both fairness and the Crown’s Treaty obligations. However, it did not recommend any changes to the Legal Services Act 2011, noting that an examination of legal aid in Aotearoa will form part the wider inquiry and that legal aid provisions in the Tribunal may change as a result of the recommended process of Māori–Crown co-design.
The next phase of the inquiry is Te Tūāpapa o te Tika, which will commence with a series of hui and wānanga in May 2023. This phase will consider how foundational principles of tikanga and justice will be applied in the inquiry. Four Pou Tikanga have been commissioned by the Tribunal to engage with the panel and parties as experts on these matters: Moe Milne, Ruth Smith, Paraone Gloyne, and Rāhui Papa.

In June 1991, Archie Taiaroa, on behalf of himself and Māori affiliated to the National Māori Congress, lodged a claim with the Waitangi Tribunal concerning the disposal of surplus New Zealand Railways lands. The Tribunal constituted to hear the claim comprised Judge Eddie Durie (presiding), Professor Gordon Orr, and Georgina Te Heuheu, and it reported on four such cases, Auckland, South Auckland, Wellington and Waikenae.

In its Report on South Auckland Railway Lands of 18 May 1992, the Tribunal found that the Crown would not be acting contrary to the principles of the Treaty of Waitangi if it disposed of railway assets in Soouth Auckland upon the terms agreed with certain named people and organisations.