Rapua ngā tuhinga ruku tātari

This report concerns a claim about the control and future of wananga in New Zealand, particularly Te Wananga o Aotearoa.

The Haane Manahi VC claim (Wai 893) was filed with the Waitangi Tribunal in 2000 by Arapeta Tahana, the chairperson of the Te Arawa Maori Trust Board. It concerns the downgrading of a recommendation for a Victoria Cross (the highest possible Commonwealth military award for bravery) to a Distinguished Conduct Medal for an act of bravery by Lance-Sergeant Haane Manahi, in action at Takrouna (Tunisia) in 1943. Te Arawa claim that their requests to restore the original VC recommendation have not been handled adequately by the New Zealand Government and that this failure constitutes a breach of the principles of the Treaty of Waitangi. They seek recommendations that the Crown consult with Te Arawa and present a fully researched and agreed proposal to the Queen for her consideration.

On Monday 10 October 2005, the Waitangi Tribunal released its report on certain policies and procedures used by the Department of Corrections in relation to the assessment of offenders. The Offender Assessment Policies Report considered two specific assessment tools (tests) that were designed and used by the department. The tools helped to identify and assess offenders who were at high risk of reoffending, and were intended to assist the development of programmes that could work towards reducing Māori reoffending.

Claimant Tom Hemopo, on behalf of Ngati Kahungunu, claimed that the assessment tools disadvantaged Maori offenders in terms of the type and length of sentences they received. He also alleged deficiencies in the department's consultation with Māori, and in the design, implementation, and use of the tools.

The Tribunal concluded that there was insufficient evidence to establish that any prejudice had been or was being caused to Māori offenders. The Tribunal recognised that the department had acted in good faith in order to reduce reoffending and believed that some aspects of the assessment tools were ground-breaking.

Nevertheless, it believed that the 'MaCRNs' tool, which focused on Māori offenders' cultural responsiveness, required more testing and independent evaluation. The Tribunal also identified Treaty breaches in the way that the department had developed that tool without consulting Māori communities, and in its monitoring of the tool's use and effects. It considered that Māori communities, including Ngati Kahungunu, had significant interests in the goal of reducing Māori offending and in using Māori culture to help achieve that goal, and the Tribunal thought that the department's responses to Māori reoffending should be developed and monitored in a manner that was consistent with those interests.

In its summing up, the Tribunal said that it believed the parties might not be far apart in finding a way forward that built on the important work that had already been done.

The Waitangi Tribunal released The Waimumu Trust (SILNA) Report on 9 May 2005. The claimants are the beneficiaries of the Waimumu Trust, which administers an area of 4440 hectares of indigenous forested land in central Southland, granted to their ancestors under the South Island Landless Natives Act 1906 (SILNA). The claim is about the Forest Amendment Act 2004, which removed their right to export unsustainably logged timber without compensation. This Act arose from the Crown’s indigenous forests and SILNA policies, which the claimants alleged are in breach of the principles of the Treaty of Waitangi. They argued that the removal of the power to export (without compensation) would lead to a loss of some $25 million in potential earnings. The claim was heard urgently at Christchurch in October 2004, with closing submissions in Wellington in November of that year.

The main focus of the urgent inquiry was, in the first instance, the claim that the Forests Amendment Act 2004 had removed the power of the claimants to export unsustainably logged timber, without compensation. The claimants argued that sustainable logging was uneconomic and would in any case only yield them $1.66 million. Unsustainable logging over five years would have earned $25.25 million (a difference of $23.59 million). The Tribunal does not consider this part of the claim to be well founded. The valuations were unsatisfactory, and there does not appear to be an export market for the Waimumu Trust’s timber in any case. There has been no breach of the principles of the Treaty, and no prejudice to the claimants, arising from this part of the Forests Amendment Act 2004.

In terms of the domestic market, claimants and the Crown were in broad agreement that the Resource Management Act 1991 (RMA) has placed strong constraints on the owners’ ability to carry out unsustainable logging. In 2001, the Environment Court accepted the Crown’s contention that the SILNA grants were not in a special category and requiring special treatment. Previously, the Crown considered the SILNA lands to be a special case because they were reserves granted by the Crown in 1906, as partial remedy for its failure to keep its nineteenth-century promises to Ngai Tahu. The Southland District Council also thought at first that the SILNA lands might require special treatment, but this idea had lapsed by the time the Southland District Plan was promulgated. As a result, the RMA is a key constraint on the claimants’ ability to make an economic use of their SILNA lands.

The Forests Amendment Act arose from the Crown’s SILNA and indigenous forest policies, as developed from 1990 to the present day. Parliament’s intention in 1906 was to provide at least a partial remedy for the Crown’s failure to set aside any or adequate reserves for Ngai Tahu in the nineteenth century. The Ngai Tahu Tribunal found that this was not in fact an adequate remedy, and the Crown has settled historical claims relating to these grievances in its Ngai Tahu Claims Settlement Act 1998. None the less, the Crown began negotiations with SILNA owners in the 1990s on the basis that their lands were a special case; a compensatory award, the intent of which would be defeated by its new indigenous forests policy. The Crown’s change of heart on this point, which the Tribunal thinks influenced both the Environment Court and the District Council, was probably inconsistent with both the historical facts and the principles of the Treaty. The Tribunal reached a preliminary view only on this matter, on the basis of the evidence available to it, as it could not conduct a full hearing of the SILNA claims. The Tribunal is satisfied that its preliminary view is sound and will assist claimants and the Crown.

In 2000, the Minister of Forests proposed to compensate all SILNA owners equally and to ensure that such a policy was consistent with the Treaty. His proposal was rejected, partly on the grounds that the historical evidence showed the SILNA awards to be of a different nature than previously thought in the 1990s. Such historical evidence was then subsequently and hastily commissioned. The Tribunal’s preliminary view is that this policy change was probably in breach of Treaty principles.

In terms of the specific Waimumu Trust claim, the Tribunal found that the Crown’s actions in the 1990s created a legitimate expectation that they would receive compensation as a result of a negotiated settlement. This expectation was created by the Framework Agreement for negotiations, and then strengthened by moratorium payments and the settlements of the Waitutu and Rakiura SILNA forest claims. The latter were settled because they have a high conservation value, and the settlements were calculated on the basis of commercial timber values. The Tribunal found that the Crown abandoned negotiations for compensation without the concurrence of the Waimumu Trust. Instead, it imposed conservation orders under the Nature Heritage Fund (NHF) as the only effective alternative remedy. The NHF payments are calculated on a much lower value than the commercial value of the timber, unlike the Waitutu and Raikura settlements. The Tribunal concluded that the Crown’s change of policy has been unfair to the Waimumu Trust and has breached the principles of the Treaty of Waitangi.

Despite this Treaty breach, the claimants have not yet suffered any prejudice. The option of applying to the NHF is still open to them. The Tribunal suggests that the Crown take advantage of this opportunity to review the basis of the NHF payments and ensure a fair outcome for the Waimumu Trust.

At the end of March 2004, the Minister in Charge of Treaty of Waitangi Negotiations and the Minister of Māori Affairs recognised the deed of mandate of the executive council of Nga Kaihautu o Te Arawa to negotiate the settlement of all of Te Arawa’s historical claims. Following that decision, claims concerning the planned settlement negotiations and the recognition of the mandate were filed with the Waitangi Tribunal and the claims were granted urgency. Judge Caren Wickliffe, John Baird, and Gloria Herbert were appointed to hear the claims (with Judge Wickliffe presiding), and a hearing was held in Rotorua in late June 2004. The Te Arawa Mandate Report was released in September 2004.

The report found that the Crown failed to carry out a sufficiently active role in monitoring and scrutinising the Te Arawa mandating process, or in assessing the executive council’s deed of mandate. The Tribunal concluded that issues of representivity and accountability with respect to the executive council had not been thoroughly or fully resolved.

However, the Tribunal stopped short of upholding the claims per se or finding that the Crown acted in breach of the Treaty causing prejudice, since an opportunity remained for matters to be put to right. The Crown had also indicated that it wanted to review the process by which the executive council’s mandate was achieved.

The Tribunal thus suggested that a hui be held of Te Arawa iwi and hapu representatives (elected members of the kaihautu) to debate and vote on issues such as the number of groups to be represented on the executive council, the proportionality of seats across the iwi and hapu, and the question of the degree of accountability of the executive council to the kaihautu.

The Tribunal stated that not only would the Crown be in breach of the Treaty if it made an inadequate response to the Tribunal’s suggested course of action but it would also risk promoting entrenched division within Te Arawa between the executive council and its opponents. Leave was granted to the claimants to return to the Tribunal if the Crown’s response was in fact inadequate.

The Tribunal also made some specific comments about particular iwi and hapu, such as finding that, many years after undertaking to do so, the Crown was both legally and morally obligated to enter into separate negotiations with Ngati Makino. The Tribunal found that this should occur at the same time as the negotiations with the rest of Te Arawa, and that, if Ngati Makino agreed, Waitaha should be invited to join these negotiations.

Finally, the Tribunal noted that claims such as those concerning the Te Arawa mandate would continue to be heard by the Tribunal from time to time. It thus provided some suggested best-practice guidelines which could be used by the Crown and Māori should they wish to develop a Treaty-compliant process for the recognition of mandates to negotiate settlements.

In the months following the release of the Te Arawa Mandate Report in August 2004, several requests for a resumption of the inquiry were made by claimants, on the grounds that the Crown had failed to make an adequate response to the Tribunal's suggestions.

In December 2004, the Tribunal agreed to resume the inquiry. A one day hearing was held on 12 January 2005. The Tribunal reported on the January 2005 hearing in the Te Arawa Mandate Report: Te Wahanga Tuarua, released in March 2005.

The Waitangi Tribunal’s report on Treaty claims around the Turanga (Gisborne) area was formally handed to claimants at Whakato Marae on 30 October 2004.

The Tribunal has ruled that the Crown repeatedly disregarded its own laws in its treatment of Maori from the Turanga area in the nineteenth century. In particular, it found that the execution of unarmed prisoners at Ngatapa Pa in 1868 was one of the worst abuses of law and human rights in New Zealand’s colonial history.

Significantly, it ruled that Maori also breached the Treaty during this period and that there was no justification for the murder of Pakeha settlers and other Maori in the Turanga area by Te Kooti and his followers.

This was the first report to be released under the Tribunal’s ‘new approach’, which heralded a faster approach to the hearing of, and reporting on, historical claims. This approach produced a report in four and a half years – from the first judicial conference held with claimant groups, their lawyers, and the Crown to discuss how the new approach would work practically in Gisborne, through to hearings, and then the writing, editing, and release of the report . This is roughly half the time it has taken in comparable districts using the standard inquiry process. The Tribunal says the two-volume report is the result of an unprecedented degree of cooperation both among the various claimant groups, and between claimants and the Crown.

In Turanga Tangata Turanga Whenua, the Tribunal found that the Crown breached the principles of the Treaty of Waitangi by: attacking a defensive pa at Waerenga a Hika in November 1865; deporting and detaining 123 prisoners on Wharekauri (the Chatham Islands) without charge or trial; executing between 86 and 128 unarmed prisoners at Ngatapa Pa in 1868, again without charge or trial; extracting the cession of 1.195 million acres under duress; and by confiscating, without legal authority, the property rights of hundreds of Turanga Maori ‘alleged’ to be rebels.

Significantly, the Tribunal also found that Te Kooti and his followers breached their own responsibilities as citizens and Treaty partners, when they murdered between 50 and 70 Maori and Pakeha at the settlements of Matawhero, Oweta and Patutahi. Even though the Whakarau (as Te Kooti’s followers were called) were greatly provoked by Crown action, the Tribunal found that ‘the Treaty of Waitangi continued to speak for reasonableness, moderation and an ethical response’.

The report details significant moments from Gisborne’s past. Turanga, as it was then called, was a fully autonomous district until 1865. That autonomy was broken when the Crown laid siege to the defensive pa at Waerenga a Hika, killing 71 defenders in the process. The Tribunal found that the Crown may only turn its guns on its own citizens if they are in rebellion. This, it said, was not the case in Turanga.

Following the surrender of the pa, the Crown imprisoned 113 men and transported them to the Wharekauri (the Chatham Islands). The Tribunal found that since the prisoners never faced charges, and were never convicted of any offence, their imprisonment was unlawful and in breach of the Treaty.

Te Kooti and nearly 300 men, women, and children escaped from Wharekauri. The Whakarau landed at Whareongaonga, south of the Bay of Plenty. Colonial forces tried to re-arrest them, and failed. Te Kooti sought safe passage from Tuhoe and sanctuary from King Tawhiao. When denied both, he attacked the Turanga settlements of Patutahi, Matawhero, and Oweta. Between 50 and 70 Pakeha and Maori were killed by the attackers. The Whakarau retreated to Ngatapa Pa in the interior, where they were besieged by colonial forces. The pa surrendered four days later. Between 86 and 128 unarmed prisoners were executed.

The Tribunal found that there was no justification for the murder of between 50 and 70 settlers and Maori in Turanga:

The Whakarau were entitled to defend themselves against Crown actions which were illegal and in breach of Treaty principle, but they breached their own responsibilities as citizens and Treaty partners in attacking and killing or forcibly detaining unarmed civilian targets.

The Crown was entitled to pursue and punish the perpetrators to the full extent of the law. But the Treaty was breached when Crown forces executed without trial, this large group of unarmed prisoners. According to the Tribunal, the scale of systematic killing at Ngatapa represents one of the worst abuses of law and human rights in New Zealand’s colonial history. Certainly it was the worst ever perpetrated by the Crown. The Crown had to respect and uphold the rule of law. It had to comply with the standards it expected of its own citizens.

Following the attack on Matawhero, 279 Turanga Maori ceded 1.195 million acres to the Crown. The Tribunal found that the cession was made under duress – the Crown had threatened to remove its protection unless the entire district was ceded. This threat was in breach of the Treaty. Nor could the deed extinguish the rights of the majority of Turanga Maori who did not sign the cession at all, the Tribunal found. In 1869, the Poverty Bay Commission was established to punish ‘rebels’ by confiscating their lands, and to return land to ‘loyal’ Maori. The Tribunal found that the commission did not have the power to confiscate land. Nor did the commission comply with applicable nineteenth century standards for fair legal process.

The Native Land Court followed the Poverty Bay commission. The court commenced title investigations in Turanga in 1875, under the new Native Lands Act. The Tribunal found that although Turanga Maori saw the benefit of titles that had been ratified by the Crown; they wanted to make their own title decisions. They opposed the land court because it took that right from them. Alongside this, the Native Lands Act removed from Maori communities, the legal capacity to manage their lands collectively. This meant that the only way Maori could benefit from the new colonial economy was by the sale of individual shares, but the land sale process under the new Act was complex, expensive, and risky for both buyers and sellers. To compound matters the titles that Maori received remained in a form of customary tenure that was far less valuable in the new settler driven market. As a result, prices were significantly discounted. Taken together, these factors meant that Maori sold more land as individuals than they would have sold as a result of a community decision making process, and at far lower overall prices. The promised economic benefits which colonisation would bring to Maori were thus never realised in Turanga.

The Tribunal noted that the peoples of Gisborne have a rich and sometimes dramatic shared history. However, it expressed frustration at the lack of local education programmes to ensure local communities are aware of that history. That, it said, remains a primary obstacle to the process of reconciliation.

The Waitangi Tribunal’s report on Treaty claims around the Turanga (Gisborne) area was formally handed to claimants at Whakato Marae on 30 October 2004.

The Tribunal has ruled that the Crown repeatedly disregarded its own laws in its treatment of Maori from the Turanga area in the nineteenth century. In particular, it found that the execution of unarmed prisoners at Ngatapa Pa in 1868 was one of the worst abuses of law and human rights in New Zealand’s colonial history.

Significantly, it ruled that Maori also breached the Treaty during this period and that there was no justification for the murder of Pakeha settlers and other Maori in the Turanga area by Te Kooti and his followers.

This was the first report to be released under the Tribunal’s ‘new approach’, which heralded a faster approach to the hearing of, and reporting on, historical claims. This approach produced a report in four and a half years – from the first judicial conference held with claimant groups, their lawyers, and the Crown to discuss how the new approach would work practically in Gisborne, through to hearings, and then the writing, editing, and release of the report . This is roughly half the time it has taken in comparable districts using the standard inquiry process. The Tribunal says the two-volume report is the result of an unprecedented degree of cooperation both among the various claimant groups, and between claimants and the Crown.

In Turanga Tangata Turanga Whenua, the Tribunal found that the Crown breached the principles of the Treaty of Waitangi by: attacking a defensive pa at Waerenga a Hika in November 1865; deporting and detaining 123 prisoners on Wharekauri (the Chatham Islands) without charge or trial; executing between 86 and 128 unarmed prisoners at Ngatapa Pa in 1868, again without charge or trial; extracting the cession of 1.195 million acres under duress; and by confiscating, without legal authority, the property rights of hundreds of Turanga Maori ‘alleged’ to be rebels.

Significantly, the Tribunal also found that Te Kooti and his followers breached their own responsibilities as citizens and Treaty partners, when they murdered between 50 and 70 Maori and Pakeha at the settlements of Matawhero, Oweta and Patutahi. Even though the Whakarau (as Te Kooti’s followers were called) were greatly provoked by Crown action, the Tribunal found that ‘the Treaty of Waitangi continued to speak for reasonableness, moderation and an ethical response’.

The report details significant moments from Gisborne’s past. Turanga, as it was then called, was a fully autonomous district until 1865. That autonomy was broken when the Crown laid siege to the defensive pa at Waerenga a Hika, killing 71 defenders in the process. The Tribunal found that the Crown may only turn its guns on its own citizens if they are in rebellion. This, it said, was not the case in Turanga.

Following the surrender of the pa, the Crown imprisoned 113 men and transported them to the Wharekauri (the Chatham Islands). The Tribunal found that since the prisoners never faced charges, and were never convicted of any offence, their imprisonment was unlawful and in breach of the Treaty.

Te Kooti and nearly 300 men, women, and children escaped from Wharekauri. The Whakarau landed at Whareongaonga, south of the Bay of Plenty. Colonial forces tried to re-arrest them, and failed. Te Kooti sought safe passage from Tuhoe and sanctuary from King Tawhiao. When denied both, he attacked the Turanga settlements of Patutahi, Matawhero, and Oweta. Between 50 and 70 Pakeha and Maori were killed by the attackers. The Whakarau retreated to Ngatapa Pa in the interior, where they were besieged by colonial forces. The pa surrendered four days later. Between 86 and 128 unarmed prisoners were executed.

The Tribunal found that there was no justification for the murder of between 50 and 70 settlers and Maori in Turanga:

The Whakarau were entitled to defend themselves against Crown actions which were illegal and in breach of Treaty principle, but they breached their own responsibilities as citizens and Treaty partners in attacking and killing or forcibly detaining unarmed civilian targets.

The Crown was entitled to pursue and punish the perpetrators to the full extent of the law. But the Treaty was breached when Crown forces executed without trial, this large group of unarmed prisoners. According to the Tribunal, the scale of systematic killing at Ngatapa represents one of the worst abuses of law and human rights in New Zealand’s colonial history. Certainly it was the worst ever perpetrated by the Crown. The Crown had to respect and uphold the rule of law. It had to comply with the standards it expected of its own citizens.

Following the attack on Matawhero, 279 Turanga Maori ceded 1.195 million acres to the Crown. The Tribunal found that the cession was made under duress – the Crown had threatened to remove its protection unless the entire district was ceded. This threat was in breach of the Treaty. Nor could the deed extinguish the rights of the majority of Turanga Maori who did not sign the cession at all, the Tribunal found. In 1869, the Poverty Bay Commission was established to punish ‘rebels’ by confiscating their lands, and to return land to ‘loyal’ Maori. The Tribunal found that the commission did not have the power to confiscate land. Nor did the commission comply with applicable nineteenth century standards for fair legal process.

The Native Land Court followed the Poverty Bay commission. The court commenced title investigations in Turanga in 1875, under the new Native Lands Act. The Tribunal found that although Turanga Maori saw the benefit of titles that had been ratified by the Crown; they wanted to make their own title decisions. They opposed the land court because it took that right from them. Alongside this, the Native Lands Act removed from Maori communities, the legal capacity to manage their lands collectively. This meant that the only way Maori could benefit from the new colonial economy was by the sale of individual shares, but the land sale process under the new Act was complex, expensive, and risky for both buyers and sellers. To compound matters the titles that Maori received remained in a form of customary tenure that was far less valuable in the new settler driven market. As a result, prices were significantly discounted. Taken together, these factors meant that Maori sold more land as individuals than they would have sold as a result of a community decision making process, and at far lower overall prices. The promised economic benefits which colonisation would bring to Maori were thus never realised in Turanga.

The Tribunal noted that the peoples of Gisborne have a rich and sometimes dramatic shared history. However, it expressed frustration at the lack of local education programmes to ensure local communities are aware of that history. That, it said, remains a primary obstacle to the process of reconciliation.

This report concerns the raupatu (confiscation) of Maori land in the Tauranga district, following the war of 1864. The report covers 55 separate claims. The claimants represent several iwi, including Ngati Ranginui, Ngai Te Rangi, Waitaha, and the Marutuahu people. The Tribunal's inquiry was not the first but it was the fullest inquiry into the confiscation that has ever been conducted. In contrast to the royal commission of 1927, which reported on the Tauranga confiscation and concluded that Tauranga Maori had not been badly treated, the Tribunal found that they have substantial grievances. The key findings of the majority report are outlined below.

War at Tauranga

The battles at Gate Pa (Pukehinahina) on 29 April 1864 and Te Ranga on 21 July 1864 followed on from the Waikato war. The Tribunal found that the Crown breached the Treaty in substantial ways by landing troops at Tauranga and attacking local Maori. This resulted in large-scale loss of life and property on the part of Tauranga Maori. The Crown then used the resistance of Tauranga Maori as an excuse to confiscate their land, breaching the Treaty obligation to allow Maori to retain ownership and control of their land. The Crown justified the confiscation on the ground that Maori were in 'rebellion'. However, the Tribunal rejected this justification because it failed to take into account the circumstances of New Zealand in the 1860s.

Loss of land

The report details the loss of Maori land as a result of raupatu. The entire Tauranga district, estimated at 290,000 acres, was included in the confiscation proclamation of 1865. Of this area, the Crown retained a 50,000-acre area known as the 'confiscated block'. Though the land outside the 50,000-acre block was returned to Maori between 1865 and 1886, most of this land was quickly lost from Maori ownership as well. The Crown purchased some 90,000 acres within the district known as the Te Puna-Katikati block and a further area of 'returned land', estimated at 75,000 acres, was sold to the Crown or private purchasers. By 1886, Tauranga Maori retained only an estimated 75,000 acres of relatively poor quality land and this was no longer held under customary title.

The confiscated block

The confiscation of 50,000 acres of land in the central part of the district, was a Treaty breach that was never really contested by the Crown in the Tribunal's inquiry. The Crown did argue that because the amount of land finally taken from Tauranga Maori was relatively small, little actual prejudice to Tauranga Maori resulted. The Tribunal rejected this and concluded that the Tauranga confiscation was a grave injustice on the part of the Crown, which has severely hindered the aspirations of Tauranga Maori since the 1860s. In particular, the Tribunal found that the hapu of Ngati Ranginui, who lived largely within the confiscated block, lost most of their land and have suffered deprivation as a result.

Te Puna-Katikati Crown purchase

In August 1864, in an effort to acquire more land, some Government Ministers took a number of Ngai Te Rangi chiefs to Auckland and persuaded them to sign a deed to sell the land from Te Puna through to Katikati. The chiefs of Ngati Pukenga, Ngati Ranginui, and Marutuahu, as well as many of Ngai Te Rangi, were not consulted and thus never agreed to sell their land in the area. Despite the protests of these rangatira, the Government insisted that the land had been sold. Some chiefs not party to the original transaction eventually got some payment but they were not allowed to keep their land. The Treaty of Waitangi promised Maori they could retain their land for as long as they so desired but the Crown did not allow Maori to retain Te Puna-Katikati. The Tribunal found that this, too, was a significant breach of the Treaty.

Returned land

The report also details the fate of the land returned to Maori outside the 50,000-acre confiscated block and the Te Puna-Katikati block. The Crown used land commissioners to ascertain rights to this land and returned it to them over the next 20 years. But it was returned in individual rather than customary title and could be sold to the Crown or Pakeha without the consent of local chiefs. All but some 75,000 acres was sold by 1886. The Crown took advantage of this situation to purchase some significant blocks of land including, even, the sacred mountain of Mauao (Mount Maunganui) - despite the protests of the leading chief of the area.

Conclusion

Tauranga Maori suffered considerable prejudice as a result of breaches of the principles of the Treaty arising from the Crown's confiscation, return and purchase of Maori land in the Tauranga district before 1886. It is the recommendation of the Tribunal that the Crown move quickly to settle the Tauranga claims with generous redress.

Minority opinion

One member of the Tauranga Tribunal - the Honourable Dr Michael Bassett - wrote a five-page dissenting opinion in which he takes issue with three of the general findings of the majority members. These are: that the Crown was not justified in taking military action against Tauranga Maori in the 1860s, that the Crown breached the Treaty by individualising the tenure of Maori land at Tauranga, and that the Crown failed to adequately supervise the alienation of returned Maori land. However, despite his dissenting views on these points, Dr Bassett concluded that the other Treaty breaches suffered by Tauranga Maori were serious enough to warrant generous redress from the Crown. He stated in his opinion that 'my conclusions do not warrant any lessening of the quantum of settlement made with Tauranga Maori'.

At the end of March 2004, the Minister in Charge of Treaty of Waitangi Negotiations and the Minister of Māori Affairs recognised the deed of mandate of the executive council of Nga Kaihautu o Te Arawa to negotiate the settlement of all of Te Arawa’s historical claims. Following that decision, claims concerning the planned settlement negotiations and the recognition of the mandate were filed with the Waitangi Tribunal and the claims were granted urgency. Judge Caren Wickliffe, John Baird, and Gloria Herbert were appointed to hear the claims (with Judge Wickliffe presiding), and a hearing was held in Rotorua in late June 2004. The Te Arawa Mandate Report was released in September 2004.

The report found that the Crown failed to carry out a sufficiently active role in monitoring and scrutinising the Te Arawa mandating process, or in assessing the executive council’s deed of mandate. The Tribunal concluded that issues of representivity and accountability with respect to the executive council had not been thoroughly or fully resolved.

However, the Tribunal stopped short of upholding the claims per se or finding that the Crown acted in breach of the Treaty causing prejudice, since an opportunity remained for matters to be put to right. The Crown had also indicated that it wanted to review the process by which the executive council’s mandate was achieved.

The Tribunal thus suggested that a hui be held of Te Arawa iwi and hapu representatives (elected members of the kaihautu) to debate and vote on issues such as the number of groups to be represented on the executive council, the proportionality of seats across the iwi and hapu, and the question of the degree of accountability of the executive council to the kaihautu.

The Tribunal stated that not only would the Crown be in breach of the Treaty if it made an inadequate response to the Tribunal’s suggested course of action but it would also risk promoting entrenched division within Te Arawa between the executive council and its opponents. Leave was granted to the claimants to return to the Tribunal if the Crown’s response was in fact inadequate.

The Tribunal also made some specific comments about particular iwi and hapu, such as finding that, many years after undertaking to do so, the Crown was both legally and morally obligated to enter into separate negotiations with Ngati Makino. The Tribunal found that this should occur at the same time as the negotiations with the rest of Te Arawa, and that, if Ngati Makino agreed, Waitaha should be invited to join these negotiations.

Finally, the Tribunal noted that claims such as those concerning the Te Arawa mandate would continue to be heard by the Tribunal from time to time. It thus provided some suggested best-practice guidelines which could be used by the Crown and Māori should they wish to develop a Treaty-compliant process for the recognition of mandates to negotiate settlements.

In the months following the release of the Te Arawa Mandate Report in August 2004, several requests for a resumption of the inquiry were made by claimants, on the grounds that the Crown had failed to make an adequate response to the Tribunal's suggestions.

In December 2004, the Tribunal agreed to resume the inquiry. A one day hearing was held on 12 January 2005. The Tribunal reported on the January 2005 hearing in the Te Arawa Mandate Report: Te Wahanga Tuarua, released in March 2005.

This short interim report concerns a claim about the polling arrangements for the 10 July 2004 Te Tai Hauauru by-election.