Rapua ngā tuhinga ruku tātari

This claim was separated from the large group of Hauraki claims because it dealt with the contemporary issue of the management of the Hauraki Gulf rather than with the historical grievances of the Hauraki people.

The claimants believed that the Crown had established a management regime under the Hauraki Gulf Marine Park Act 2000 that was inconsistent with its duties of active protection of their rangatiratanga and kaitiakitanga. They asserted that their claims to customary title and rights in the foreshore and seabed were prejudiced by this Act.

The Tribunal acknowledged the considerable area of agreement between the claimants and the Crown on the need to enhance preservation and protection of the Hauraki Gulf. There was also agreement that a forum, where tangata whenua and territorial authorities could regularly meet to monitor the development of the park and formulate policy, was a sound idea. The Tribunal accepted that the iwi represented by the Hauraki Māori Trust board are tangata whenua of Tikapa Moana.

‘However the physical boundaries of the park are greater than the rohe of Hauraki iwi represented by the Board, and include other groups who can equally claim to be tangata whenua of the park. As part of its Treaty obligations, the Crown must include those tangata whenua in the Hauraki Gulf Forum, and it has done so.’
The Waitangi Tribunal

The Tribunal did not see any fundamental Treaty breach in the legislation per se. It made no specific findings as it was not convinced that the Hauraki iwi had been prejudiced by the passing of the Hauraki Marine Park Act 2000.

‘We would encourage all parties to focus on what they agree on: the need for the Hauraki Gulf environment to be protected for future generations. This is the spirit and intention of the Act, which provides a framework for all parties to work together towards this common goal.’
The Waitangi Tribunal

Two days of hearing for the Paraninihi ki Waitotara Incorporation (PKW) claim regarding changes to the dairy industry were held on 12 and 13 November 2001. The Tribunal's report was released before Christmas 2001.

The claim had four separate aspects to it. The Tribunal did not uphold the the first three points of claim. The Tribunal did not agree that the creation of Fonterra would necessarily cause the relative value of PKW's unimproved land to decrease; did not agree that the rental income from PKW's land necessarily would be of less value; and did not agree that the relative cost of exercising the right of first refusal to buy out perpetual leases would necessarily increase.

However, the Tribunal did uphold the fourth point of claim – that the cost of entering the dairy industry has increased – and recommended that the Government should guarantee a loan to enable PKW to purchase shares to supply Fonterra, so that PKW would be able to enter the dairy industry in an equitable manner.

The Tribunal found this was particularly necessary because the Crown had ignored repeated recommendations from various inquiries and commissions since the confiscation of Taranaki land to provide remedies for the problems created by confiscation, and by the subsequent establishment of perpetual leases of returned lands. The Tribunal considered that the failure to provide such remedies created an even more compelling need for the Crown to do so urgently: 'we regard the wilful and repeated turning of the Crown's face from its Treaty obligations and breaches as a further breach in itself'.

The Tribunal considered that the Crown should have at the very least acted immediately on the recommendations of the Tribunal's 1991 Ngai Tahu Report regarding perpetual leasing and the Māori Reserved Land Act 1955:

having ignored the [1975] Sheehan report, the Crown should, at the very least, have given the matter urgent attention and provided a fulsome remedy when the implications of the finding of the ‘Ngai Tahu Report’ were apparent, and had the strong words in the 1987 judgment of the Court of Appeal been taken to heart.

This report concerns claims about the terms of a settlement offer made to Ngati Awa by the Government.

In March 1997, Dame Augusta Wallace was appointed presiding officer for the Waitangi Tribunal’s inquiry into the Kaipara district, and the remaining members of this Tribunal were appointed in June 1997. The records of inquiry of various claims relating to the Kaipara region were combined under the reference number Wai 674 in July 1997. The inquiry district was divided into three areas (stages 1, 2, and 3), to be heard in sequence. Hearings for stage 1 claims commenced in August 1997 and continued until June 1998. The main Te Uri o Hau claims (Wai 229 and Wai 271) were heard by the Tribunal in stage 1. While this stage of the inquiry was in progress, counsel for Wai 229 and Wai 271 made a series of submissions asking the Tribunal to issue an interim report at the completion of the stage 1 hearings. The claimants sought an interim report or preliminary indications from the Tribunal, with a view to entering into direct negotiations with the Crown for the settlement of their claims as soon as possible.

Claims in the Kaipara inquiry fall into three categories:

• those historical claims which will be settled as soon as the Te Uri o Hau Claims Settlement Bill is enacted;
• those claims which are part of the Kaipara inquiry but have not been heard by the Tribunal; and
• those claims which have been heard by the Tribunal but are not included in the Te Uri o Hau settlement.

The reasons for the Kaipara Tribunal's decision to issue this interim report are set out in the following memorandum, which was originally intended for the relevant Ministers:

The members of the Tribunal constituted to hear the Kaipara claims met on 1 May and 6 June 2002, and, after lengthy discussion, unanimously reached the following conclusions. One member was absent from the meetings, but has separately signified his agreement to this memorandum.

1. The Waitangi Tribunal is a permanent commission of inquiry with a statutory responsiblity to inquire into Maori claims of breaches of the Treaty of Waitangi.

2. Independent of the Tribunal process, the Crown reserves to itself the power to negotiate directly with Maori claimants.

3. Before this Tribunal has reported on the Kaipara claims (including Te Uri o Hau claims as defined in the Te Uri o Hau Claims Settlement Bill), the Crown has chosen to negotiate separately with Te Uri o Hau, in isolation from all the other Kaipara claims.

4. The Te Uri o Hau Claims Settlement Act, when passed, will exclude the Tribunal from jurisdiction in relation to those Te Uri o Hau claims.

5. In this Tribunal's view, generic grievances, in relation to which the Crown has admitted culpability in the Te Uri o Hau Settlement, are common to claims throughout the whole Kaipara inquiry district.

6. These generic grievances could be the basis for negotiations and settlements of claims throughout the region. While the Tribunal exercises a separate jurisdiction, it believes that it could be in the interests of other Kaipara claimants for the Crown to enter into direct negotiations with them. In making this statement, this Tribunal is mindful of the dictates of natural justice and the need for that to be perceived by all.

7. Were the Kaipara Tribunal to report on those generic grievances, it would find itself, in general terms, in sympathy with the acknowledgements of Treaty breaches which the Crown has made in the Te Uri o Hau settlement.

8. As soon as possible, the Tribunal intends to publish a brief report of its interim findings in relation to those generic grievances in respect of all Kaipara claims, excepting only Te Uri o Hau claims (as defined above). The Tribunal is aware that this might assist Kaipara claimants and the Crown, should the parties wish to negotiate directly.

9. The Tribunal will consider whether to report finally, in its usual manner, on the Kaipara claims, or any part thereof (other than Te Uri o Hau claims), on application to this Tribunal by the Crown or claimants. Such an application will be notified to all parties to the Kaipara inquiry.

10. The Kaipara Tribunal takes this somewhat unusual course in this inquiry due to the particular circumstances that have arisen following direct Crown negotiations and settlement with Te Uri o Hau, in isolation from the rest of the Kaipara claims, and in advance of the Tribunal reporting. This situation of dual or competing processes occurring in tandem has caused the Tribunal to consider the matter at length. While not vacating its statutory jurisdiction, the Kaipara Tribunal is proposing this course of action in an endeavour to be practical and fair to all parties.

Before this memorandum could be sent to the Ministers, the announcement of a general election on 27 July 2002 was made, and the memorandum was held over for the incoming Government. The Tribunal decided to proceed with its intention of issuing a brief report of its interim findings in respect of generic issues acknowledged by the Crown in the Te Uri o Hau Claims Settlement Bill.

The Wai 953 claimants represent Ngati Kahungunu, Ngati Whatua, Te Atiawa ki te Tau Ihu, Ngati Koata, Ngai Tahu, and Ngati Kuia. They claim to have a broad relationship with the coastal marine area and that as an incident of that relationship they have an interest in aquaculture, or more particularly marine farming.

The Tribunal was assisted by submissions from Te Ohu Kaimoana and the New Zealand Marine Farming Association.

The claimants alleged that they had been prejudicially affected by the proposals of the crown to reform the laws regulating aquaculture and in particular marine farming in New Zealand. They allege that these Crown actions amount to acts, policies, and practices in breach of the principles of the Treaty of Waitangi.

The Tribunal's focus during the inquiry was on the proposals for reform and not on the existing aquaculture regime. The concern was the discrete question of whether the proposed reforms were in breach of the principles of the Treaty of Waitangi. We also considered whether attempts made by the Crown, subsequent to the filing of these claims, addressed Maori issues adequately so as to discharge the Crown's duty actively to protect Maori interests.

In summary, this report found that Māori have an interest in marine farming that forms part of the bundle of Maori rights in the coastal marine area that represent a taonga protected by the Treaty of Waitangi. The Tribunal found that the proposed reforms do breach the principles of the Treaty of Waitangi and the reasons for this are explained in chapter 6 and 7 of the report. The Tribunal also found that further consultation with Māori is needed to ascertain what should be done to ensure that their Treaty interests are adequately provided for. To facilitate this process the Tribunal recommended that the delay before the introduction of the Bill should be used by the Crown to establish a mechanism (resourced by the Crown) for consultation and negotiation with Māori including the claimants, facilitated by Te Ohu Kai Moana. The basis of consultation should be the existence of Treaty rights in the coastal space, which include rights, the extent of which are yet to be determined, to aquaculture and marine farming.

The parties should use the mechanism to discuss:

-a process for investigating the nature and extent of the Māori interest in marine farming;
-a process for agreeing on the mechanism needed to protect the Māori interest in marine farming, including a mechanism for preserving capacity to intervene once the full nature and and extent of that interest is defined;
-a process for ensuring appropriate Māori participation in the development of AMA areas and tendering process;
-a mechanism for preserving the Crown's capacity to meet its Treaty obligations in the short term, until such time as the longer planning issues are dealt with.

The Tribunal found that since the claims are well-founded, the recommendation is for payment by the Crown of the claimants' reasonable costs and expenses.

The Tribunal also indicated that the claimants have leave without further application for urgency, to return to the Tribunal should they have concerns that these matters have not been addressed properly after any legislation has been enacted.

This report is in response to claims relating to the development, finalisation, and implementation in the 1960s of the Tarawera Forest joint-venture scheme, a tripartite forestry scheme involving private enterprise (originally Tasman Pulp and Paper Company Limited), the Crown, and several thousand Maori. In essence, the claims assert that the Crown secured the involvement of the Maori participants in the scheme by means which were in breach of Treaty principles and which caused them prejudice. The relevant Treaty principles are those of active protection and partnership. The claimed prejudice is, first, the unnecessary and non-consensual loss from Maori ownership of more than 38,000 acres of land, including the sacred maunga Putauaki and, secondly, the loss of financial benefits that, it is said, should have been obtained from the joint venture by the Maori participants but were not.

The primary group of claimants (the Wai 411 claimants) represent the former owners of the 38,000 acres of Maori land and the current shareholders and debenture stock holders of Maori Investments Limited (MIL). MIL is a holding company created in 1968 for the specific purpose of administering the 10.8 percent stake in Tarawera Forests Limited (TFL) that was obtained by the former owners of the Maori land in return for contributing their land to the venture. Supporting the Wai 411 claim but focusing specifically on the loss of ownership of Putauaki were the Ngati Awa (Wai 46) claimants. The other claim reported on here (Wai 872) was made by an individual Wai 411 claimant during the course of the Tribunal's hearing.

A key feature of the Tarawera Forest joint venture was that ownership of the land contributed by the three venturers passed to TFL in return for a stake in that company. The claimants' land loss grievance rests on their view that the owners of the Maori land would have much preferred to lease it than lose title to it, and that a lease could have been achieved in place of the joint venture if only the Crown had acted consistently with its duty actively to protect Maori interests. Instead, the claimants allege, the Crown put its own interests ahead of those of the Maori landowners and secured their involvement in the joint venture by a variety of unfair tactics, the effect of which was that the Maori owners did not sufficiently understand or consent to the venture's terms. The sense of grievance that surrounds the loss from Maori to private ownership of such a large area of land, including the taonga Putuaki, is exacerbated by the fact that the Tarawera Forest joint-venture has proved to be a 'one-off' scheme. All other forestry projects utilising Maori land have involved leases, and some have enabled the Maori lessors to own the forest on their land at the end of the lease's term.

The claimant's second grievance is that the joint venture has not given to the Maori participants the returns promised to those who knew of it, let alone the returns that they claim would have been obtained if the venture had been negotiated fairly. At the heart of this grievance, too, is the view that the Crown put its own interests first and, by various unfair tactics, ensured that the Maori landowners became party to a venture on terms that were not to their greatest advantage.

The nature of the claims has required the Tribunal to undertake a detailed examination of the events surrounding the development and implementation of the Tarawera Forest joint venture. The first issue is the fairness, in terms of the Crown's obligations to protect Maori interests, of the process by which the joint venture was conceived and became a reality. The second issue is the attitude of the Crown throughout that process. We have found that the process followed in establishing the joint venture was inconsistent with what the Treaty principle requires of the Crown. We have also found, however, that the Crown was not motivated by bad faith in that process. Further, we are satisfied that the two claimant groups have been prejudiced by the loss of ownership of the former Maori land and the sacred mountain, and that the financial returns to MIL from the joint venture do not offset that loss. We are not satisfied, however, that the claimants have lost financial benefits due to them from their participation in the joint venture. Finally, we consider that the prejudice resulting from the loss of land ownership requires redress from the Crown, and we have made recommendations on that matter at the conclusion of this report.

This report concerns a claim about the Government's proposed settlement with Ngati Tuwharetoa ki Kawerau.

Released in 2003, Te Whanganui a Tara me ona Takiwa: Report on the Wellington District is a report on 13 claims relating to the area covered by the New Zealand Company’s 1839 Port Nicholson deed of purchase, as extended in 1844 to the southwest coast. The inquiry area consists of the takiwa (district, or environs) of Te Whanganui a Tara (Wellington Harbour or Port Nicholson), including Wellington city and the Hutt Valley. The report deals with the complex process by which this land was acquired from Māori, and with issues relating to the administration and alienation of Māori reserves in the inquiry area.

The Tribunal originally constituted to hear the claims consisted of Bill Wilson (presiding), Professor Gordon Orr, and Georgina Te Heuheu, with Bishop Manuhuia Bennett joining the Tribunal shortly after the inquiry began, but Mr Wilson and Mrs Te Heuheu subsequently resigned from the Tribunal. As a result of these resignations, Professor Keith Sorrenson and John Clarke were added to the Tribunal, and Professor Orr took over as presiding officer. The claims were heard between 1991 and 1999. Sadly, Bishop Bennett died at the end of 2001, before the report was ready for release.

The Tribunal found that the 1839 deed by which the New Zealand Company purported to have purchased the Port Nicholson block was invalid, conferring no rights on the company or its settlers. However, from 1840, company settlers began arriving at Port Nicholson, and quickly came into conflict with local Māori, who discovered that land which they occupied and cultivated had been sold to settlers. Despite an investigation by a Crown-appointed land claims commissioner, which revealed many of the deficiencies in the company’s supposed purchase, the Crown agreed to a process whereby Māori would release their interests in 67,000 acres of land to the company in exchange for £1500 ‘compensation’. The Tribunal found that this process was deeply flawed, and was carried out without the informed consent of Maori .

Furthermore, in 1848 a Crown grant was issued to the company covering not just the 67,000 acres but the whole of the Port Nicholson block, said to contain around 209,000 acres. Māori retained only some 20,000 acres of reserves. This Crown grant deprived Māori of roughly 120,000 acres which they had never sold or consented to give up, and the Tribunal found this to be in breach of their Treaty rights.

Another issue covered in the report is the conflict over Heretaunga (the Hutt Valley). In the early 1840s, parts of Heretaunga were occupied by Ngāti Rangatahi and Ngāti Tama, who had close ties with Ngāti Toa of the Porirua area. Crown officials did not recognise the rights of Ngāti Rangatahi and Ngāti Tama in Heretaunga, where they were living on land claimed by the New Zealand Company and its settlers. Both groups were pressured into leaving the valley by Governor Grey in 1846, Ngāti Rangatahi leaving only under threat of attack by Crown forces. The Tribunal found that the Crown failed to recognise or protect the interests of Ngāti Rangatahi and Ngāti Tama, who were required to surrender their land without their free consent, and who received either inadequate compensation or, in Ngāti Rangatahi’s case, no compensation. In addition, the Tribunal found that the Crown failed adequately to recognise Ngāti Toa’s interests in the Port Nicholson block.

The report also deals with Māori reserves in Wellington. Part of the New Zealand Company’s original plan for the settlement of Port Nicholson was that a tenth of the land acquired by the company would be set aside as native reserves, which came to be known as ‘tenths’. The Crown subsequently assumed responsibility for these tenths reserves. Another category of reserves (known as ‘McCleverty reserves’ after the Crown official who set them aside for Māori) was placed under the direct control of Māori owners, and the bulk of the McCleverty reserves were later either sold or taken for public works. The tenths reserves, however, were administered by Government officials on behalf of the Wellington Māori who were the beneficial owners of these reserves. In 1851 and 1853, the Crown appropriated 23 acres of valuable urban tenths land as endowments for hospital, educational, and religious purposes. The Māori beneficial owners did not consent to these appropriations, received little benefit from the endowments, were not compensated until 1877, and even then received only inadequate compensation. The Tribunal found that these appropriations were in breach of Treaty principles.

For most of the twentieth century, the tenths reserves were placed under perpetually-renewable leases for 21-year terms, a system which effectively alienated this land from its Māori beneficial owners in perpetuity. Furthermore, the beneficial owners received below-market rents due to the setting of rents at a fixed percentage of the value of the land at the start of the 21-year term. This meant that rent could rise to reflect increased land values only once every 21 years. The legislation which imposed the perpetual leasing regime, without the consent of the Māori beneficial owners of the reserves, was found by the Tribunal to be in breach of the Treaty.

Other matters discussed in the report include the taking by the Crown of land for the town belt and other public reserves without the consent of, or payment to, Māori; the creation of reserves in Palmerston North for some Wellington Māori, to replace tenths reserves in Wellington which had been sold by the Crown; the taking of Māori reserved land for public works purposes; and issues relating to the management of Wellington harbour, including the reclamation of much of the harbour foreshore.

The Tribunal concluded that serious breaches of the Treaty by the Crown occurred in the Port Nicholson block, and that these Treaty breaches affected Te Atiawa, Ngāti Toa, Ngāti Tama, Ngāti Rangatahi, Taranaki, and Ngāti Ruanui. It recommended that representatives of these groups enter negotiations with the Crown to settle these Treaty grievances.

The Petroleum Report is the outcome of an urgent hearing held in Wellington over four days from 16 to 19 October 2000. In the report the Tribunal, consisting of Chief Judge Joe Williams (presiding), John Baird, John Clarke, and Joanne Morris, addresses claims by Nga Hapu o Nga Ruahine of Taranaki and Ngati Kahungunu of Hawke’s Bay and Wairarapa in relation to their interests in the petroleum resource.

The report was written under urgency owing to the Government’s intention to sell the Crown’s interests in the Kupe licence. Because of that situation, the Tribunal reported in two stages. Part 2 of the report dealt with the regulatory framework and management regime since 1937.

At the hearing, it was common ground between the claimants and the Crown that, before 1937, land ownership carried with it legal rights to the petroleum in the land. However, the claimants argued that in the nineteenth century, and up to 1937, the Crown was implicated in many breaches of the Treaty whereby they lost most of their land and the petroleum that went with it. Then, in the Petroleum Act 1937, the Crown nationalised the petroleum resource, without paying compensation to landowners, and without making provision for the ongoing payment of royalties to them. This, the claimants said, was a further breach of the Treaty.

The question before the Tribunal was whether, if Maori no longer have any subsisting legal ownership in the petroleum resource, an interest of any other kind remains. The inquiry led the Tribunal to conclude that the expropriation of the pre-existing Maori rights to petroleum arose from a context riddled with breaches of the Treaty. The situation in Taranaki, for example, where most of the land was confiscated, is well known. The Tribunal reached the view that, where legal rights to an important and valuable resource are lost or extinguished as a direct result of a Treaty breach, an interest of another kind is generated. The Tribunal called this a ‘Treaty interest’.

When a Treaty interest arises, there will be a right to a remedy, and a corresponding obligation on the Crown to negotiate redress for the wrongful loss of the legal right. Importantly, the Treaty interest creates entitlement to a remedy for that loss additional to any other entitlement to redress.

In relation to the loss of the petroleum resource under circumstances that breach the Treaty, the Tribunal considered that separate redress was due to Māori. By ‘separate’, the Tribunal meant additional to that made for historical land loss grievances, and relating to the loss of rights in the petroleum resource.

The Tribunal considered that the claimants in these claims had a subsisting Treaty interest in the petroleum resource and that they were accordingly entitled to redress beyond that to which their historical land loss grievances entitled them.

Finally, the Tribunal examined the reasoning underlying the Crown’s view that petroleum assets ought to be excluded from settlements. The Tribunal concluded that this exclusion was in breach of the principles of the Treaty of Waitangi and that the Crown’s remaining petroleum assets ought to be on the table in any settlement negotiations with affected claimants. The Tribunal’s conclusion in this regard had general application but applied with particular force in the case of Taranaki.

The Tribunal concluded by recommending that the Crown negotiate with affected Maori groups for the settlement of petroleum grievances and that it withhold the Kupe petroleum mining licence from sale until either a rational policy had been developed to safeguard Maori interests or the petroleum claims had been settled.

Heoi ano enei whakaaro o matou mo te kaupapa i whakatakotoria ki mua i to matou aroaro. E tautoko ana i tera rerenga korero kua whakawharikitia ki roto ki nga mahi a te Karauna mo nga kereme. Ko matou kei muri, ko te Karauna me te iwi Maori kei mua - ‘Ka tika a muri, ka tika a mua’.

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.