Rapua ngā tuhinga ruku tātari

Two reports were prepared by the Tribunal on claims relating to the September 2006 deed of settlement between the Crown and the iwi/hapu of Te Arawa affiliated to Nga Kaihautu o Te Arawa, a body mandated to negotiate the settlement of the historical claims of approximately half of Te Arawa. The Tribunal panel comprised Judge Caren Fox, Peter Brown, the Honourable Douglas Kidd, and Tuahine Northover.

The claimants alleged that the proposed Kaihautu settlement would prejudice their interests by transferring to affiliate groups cultural and commercial redress assets in which they had interests. The Tribunal’s first report dealt with claims on cultural redress, the second with commercial redress. The two reports were published together in a single volume.

The claims discussed in these reports were brought by: Te Arawa groups who chose not to be represented by the Kaihautu; Te Arawa groups who disputed the mandate of the Kaihautu to represent them; and (in the second report) central North Island iwi outside the Te Arawa confederation whose interests were affected by the commercial redress terms of the proposed settlement.

The Report on the Impact of the Crown’s Treaty Settlement Policy on Te Arawa Waka

The first report dealt with cultural redress aspects of the settlement. The Tribunal examined the processes by which the Crown, during the Kaihautu negotiations, communicated with and gathered information from groups whose interests overlapped those of affiliate iwi/hapu. It found that these processes were seriously flawed, and that the Crown had failed to protect the interests of overlapping groups in the cultural redress sites offered to the Kaihautu.

The Tribunal recommended that the Crown undertake to vary the settlement to recognise the customary interests of certain non-affiliate groups with particular cultural redress sites. It also recommended that the statutory acknowledgement in respect of the Rotorua regional geothermal system should apply to the entire Te Arawa waka, and that the Minister of Maori Affairs should annually review the development of policy advice within the Office of Treaty Settlements.

In respect of the claimants who disputed their representation by the Kaihautu, the Tribunal recommended that before the legislation is introduced, the Crown facilitate hui-a-hapu to gauge their support for the Kaihautu mandate once and for all.

The Final Report on the Impact of the Crown’s Treaty Settlement Policies on Te Arawa Waka and Other Tribes

The second report dealt with the major commercial redress element in the Kaihautu settlement: the transfer of approximately 51,000 hectares of Crown forestry licensed land to the affiliate iwi/hapu. The Tribunal found several failures by the Crown to protect the interests of overlapping claimants during its negotiations with the Kaihautu.

First, the Crown had failed to engage fully and robustly with overlapping claimant groups during its negotiations with Kaihautu. The Tribunal considered that the interests of claimants had been put at risk as a result of this failure.

Next, the Tribunal found inadequacies in the Crown’s approach to assessing the sufficiency and appropriateness of the Crown forestry land remaining after the Kaihautu settlement for use in future Treaty settlements with other central North Island iwi.

The Tribunal also found that the Crown had breached the Treaty by including in the deed provision for it to receive the accumulated rentals associated with certain Crown forestry lands included in the settlement. The Tribunal had grave concerns regarding the impact of the settlement on overlapping iwi and on the durability of future central North Island settlements. However, it also recognised that the affiliate iwi/hapu of Te Arawa had done nothing wrong and deserved their settlement.

The Tribunal therefore recommended that the proposed settlement be delayed pending the outcome of a forum of central North Island iwi and other affected groups. The aim of this forum would be to negotiate between participants, according to tikanga, high-level guidelines for the allocation of Crown forest lands. The Tribunal considered that truly durable Treaty settlements would grow out of such a process.

The Tāmaki Makaurau Settlement Process Report followed an urgent inquiry into claims that six different groups were adversely affected both by the process and proposed outcome of the Treaty settlement negotiations between Ngāti Whātua o Ōrākei and the Crown.

He Whenua Karapotia, He Whenua Ngaro: Priority Report on Landlocked Māori Land in the Taihape Inquiry District is an early outcome of the Taihape: Rangitīkei ki Rangipō district inquiry. The Tribunal reported on landlocking as a matter of priority because it was a pressing issue in the inquiry district; more than 70 per cent of remaining Māori land holdings in Taihape – exceeding 50,000 hectares – were landlocked at the time of inquiry.

The broader Taihape district inquiry encompasses 46 historical claims about Crown actions and omissions in the area known as Inland Pātea, west of the Ruahine ranges and south of the Kaimanawa mountains. Hearings took place from 2016 to 2020. The inquiry panel comprised Justice Layne Harvey (presiding), Dr Paul Hamer, Dr Monty Soutar, and Professor Tā Pou Temara. Sir Douglas Kidd and the late Dr Angela Ballara were former panellists.

He Whenua Karapotia, He Whenua Ngaro considers whether the Crown was responsible for landlocking of Māori land in the inquiry district – which largely occurred between 1886 and 1912 – and has provided adequate remedies for the problem since. It also considers whether localised Crown actions in the 1980s and 1990s compounded access difficulties for some claimants with landlocked land.

On the first issue, the Tribunal concludes that landlocking occurred in Taihape because the Crown did not require the Native Land Court to preserve access to Māori land as it was partitioned. Upon the sale or lease of a partition with road access, therefore, blocks of Māori land lying beyond it usually became landlocked. Although from 1886 Māori could apply for access to their land as it passed through the court (or within five years thereafter), these measures were ineffective because they still gave the court discretion on whether to grant access and required Māori to pay the large cost of creating any access granted. The Tribunal finds that the Crown’s general failure to address the risk of landlocking in its native land legislation before 1912 breached the principles of active protection, partnership, and equity, and the expectation that Māori apply to the court to retain access to their own land, and pay for it, also undermined the Treaty guarantee of ‘full exclusive and undisturbed possession’ of land.

On the second issue, the Crown conceded that its remedies for landlocked Māori land from 1912 to 1975 were ineffective, inequitable, and indirectly discriminated against Māori. During this period, the Native Land Court/Māori Land Court could order retrospective access to landlocked Māori land. But, if the neighbouring land to be crossed had left Māori ownership before 1913, the court had no power to order access or could do so only with the neighbouring owner’s consent. This restriction in the law effectively removed the court’s ability to restore access to landlocked Māori land in Taihape, which had almost entirely become landlocked – as neighbouring land was sold – before 1913. While it accepts the Crown’s concessions, the Tribunal finds that the failure of the Crown’s remedies in this period breached the principle of redress.

The report goes on to conclude that, despite legislative improvements, the Crown’s remedies since 1975 have remained ineffective for Māori with landlocked land in Taihape. The key flaw in these remedies, the report argues, is that they have continued to place the huge cost of restoring access onto the owners of landlocked Māori land. This approach has been not only ineffective but unfair, treating the landowners no differently than owners of general land seeking to access landlocked land they have purchased. The Tribunal finds that the Crown’s failure to provide fair and effective remedies since 1975 breached the principles of equity and redress.

On localised issues, the Tribunal finds that the Crown ignored opportunities to enhance access to some landlocked Māori land in the 1980s and 1990s, when it negotiated better access to its nearby conservation land, and that this failure breached Treaty principles. The Crown also conceded that it breached Treaty principles by failing to consult the owners of neighbouring landlocked Māori land when it acquired certain blocks for defence purposes.

The Tribunal finds that whānau and hapū of the Taihape district have been significantly prejudiced by the lack of ready access to much of their remaining land, which has undermined their opportunities for economic development, their ability to exercise kaitiakitanga, and the intergenerational transmission of mātauranga relating to these lands.

To redress the prejudice caused by its Treaty breaches, the report recommends that the Crown establish a contestable fund to which Māori owners of landlocked land in Taihape can apply to achieve access. The fund would pay for access that may be granted by the Māori Land Court, including any compensation payable to neighbouring landowners. The Tribunal recommends that funds for this purpose should not be taken from the sum set aside to settle the district’s historical claims.

The East Coast Settlement Report is the outcome of an urgent Waitangi Tribunal hearing held in Wellington between 14 and 16 December 2009 into the Crown’s recognition of Te Runanga o Ngāti Porou’s (TRONP) mandate to negotiate and settle all historical Ngāti Porou Treaty of Waitangi claims. The Tribunal panel comprised Judge Craig Coxhead (presiding), the Honourable Sir Douglas Kidd, Kihi Ngatai, Tania Simpson, and Basil Morrison.

The three main claimants in the inquiry asserted they represented Ruawaipu, Uepohatu, and Te Aitanga-a-Hauiti. All submitted that they, and those they claimed to represent, were not Ngāti Porou, and TRONP therefore had no valid mandate to represent them in settlement negotiations. The claimants argued that the Crown’s mandating process was flawed and sought a recommendation that the Crown delay the Ngāti Porou settlement negotiations until their historical claims had been inquired into by the Waitangi Tribunal.

TRONP, as a secondary party to these proceedings, argued that those identifying as Ruawaipu, Uepohatu, and Te Aitanga-a-Hauiti were Ngāti Porou. The Crown submitted that TRONP had a valid mandate to negotiate all Ngati Porou historical claims within the East Coast inquiry district. The Tribunal did not inquire into matters of tribal identity but instead focused on the actions of the Crown in recognising TRONP’s mandate.

Having assessed the evidence and arguments of all parties, the Tribunal did not recommend that the Crown delay settlement with TRONP as requested by the claimants. The Tribunal concluded that the potential prejudice of delaying such a significant settlement would outweigh any possible prejudice to the claimants from having their claims settled without their specific consent. The Tribunal was also not convinced that the claimants commanded significant support compared with the support demonstrated by TRONP. The Tribunal was mindful of the fact that both the Crown and TRONP had suggested ways in which at least some of the claimants’ concerns might be addressed.

However, the Tribunal also noted flaws in the process followed by the Crown in recognising TRONP’s mandate. While the Tribunal did not consider that these flaws were so serious as to warrant recommending delaying settlement, it was concerned that they should not be repeated when the Crown seeks to negotiate and settle Treaty claims with other groups. The Tribunal therefore recommended a number of changes to the Crown’s mandate policies to enhance the durability of future settlements. The Tribunal urged the Crown to adopt these recommended changes and to ensure they are reflected in official documents outlining Crown settlement policy. These recommended changes included the following:

• OTS should call for submissions at the point that a proposed mandating strategy is submitted, as well as after a deed of mandate is received. This will allow claimants who have a vested interest in a settlement ample time to comment upon, oppose, or make recommendations on the strategy, as well as to inform the Crown of interested parties and allow it the opportunity to engage with them at an early stage in the process.
• The information provided as part of any mandating strategy must include:
  • the specific claims (Wai numbers) to be included in a proposed settlement;
  • a clear definition of the claimant community on an iwi, hapu, marae, and whakapapa basis; and
  • the specific geographical area to be covered by a proposed settlement.
• OTS should, at an early stage, write to all Wai number claimants whose claims might be extinguished if a proposed settlement goes ahead, informing them of this fact. The earlier in the process claimants know what is being proposed, the earlier they can support or oppose negotiations. Furthermore, the Crown could insist that the negotiating committee formed after the mandating process inform all those affected by the proposed settlement on a regular basis when milestones are reached in its negotiations with Crown officials.
• The Crown should adopt a more proactive role in monitoring developments during the mandating strategy process. While we understand and acknowledge the Crown’s reluctance to intervene in disputes over which claims are to be included in a mandating strategy, it also has a responsibility towards claimants who may feel marginalised as a result of the process.
• The Crown has a responsibility to ensure that all interested parties in a negotiated settlement have access to unhindered participation at every stage of the mandating process. This will lessen the likelihood of claimants seeking recourse to urgency proceedings with the Tribunal and ensure that settlements are conducted in a fair and open manner.
• OTS should update its policy guide, ‘Ka Tika a Muri, Ka Tika a Mua’, to reflect changes that have arisen out of the recommendations of the ‘Te Arawa Settlement Process Reports’ and the ‘Tamaki Makaurau Report’, as well as the recommendations of the present inquiry.

The Waitangi Tribunal’s Horowhenua: The Muaūpoko Priority Report was released on 30 June 2017. It concerns 30 claims relating to Muaūpoko, an iwi of the lower North Island.

In her letter of transmittal Deputy Chief Judge Caren Fox described Muaūpoko as ‘an ancient, proud, and dignified people who once ranged over an area that reached into the northern end of Manawatū, across the Tararua Ranges, and down into the top of the South Island’. One of their tupuna, Taueki, signed the Treaty of Waitangi in May 1840.

Muaūpoko’s claims are part of the Porirua ki Manawatū district inquiry. The Tribunal heard these claims as a priority in 2015–16, at the request of claimants, in order to provide a report before settlement negotiations were well advanced.

The inquiry panel comprised Deputy Chief Judge Caren Fox (presiding), Emeritus Professor Sir Tamati Reedy, Dr Grant Phillipson, the Honourable Sir Douglas Kidd, and Tania Simpson. The Tribunal convened a two-day Nga Kōrero Tuku Iho hui in February 2014 to hear oral and traditional evidence from the people. Three hearing weeks were held between October and December 2015. The parties made closing submissions in writing between February and May 2016.

Muaūpoko’s claims focused on their lands at Horowhenua and their treasured taonga Lake Horowhenua and the Hōkio Stream. The environmental degradation of the lake and associated waterways was an especially strong grievance for Muaūpoko. Claimant Philip Taueki told the Tribunal that the polluted state of these precious taonga ‘epitomises the Crown’s appalling and disgusting treatment of Mua-Upoko ever since the day Tauheke signed the Treaty of Waitangi’.

Deputy Chief Judge Fox noted that the Crown assisted the Tribunal’s inquiry by making a number of significant concessions of Treaty breach. These included admissions that some legislation and Crown acts have prejudiced Muaūpoko and that Muaūpoko were made virtually landless, in breach of the Treaty.

The Tribunal accepted the Crown concessions and identified several other important Treaty breaches in relation to Muaūpoko’s Horowhenua lands. The Tribunal found that the Native Land Court and the individualisation of tribal land was imposed on Muaūpoko in the 1870s, and that the Crown purchased the Levin township site in the 1880s in a way which was significantly unfair to Muaūpoko. The Tribunal also found that Muaūpoko were subjected to a number of significant Treaty breaches in the 1890s. By the end of the twentieth century, they had been rendered landless.

The Tribunal found serious Treaty breaches in relation to Crown actions and omissions in respect of Lake Horowhenua and the Hōkio Stream. In the early 1900s, the Crown made Lake Horowhenua, the bed of which belonged to Muaūpoko, a public recreation reserve, giving control of it to a domain board. The Tribunal found that this was done without the full agreement of the Muaūpoko owners, and that a series of significant Treaty breaches followed in the way the lake has been controlled and administered, including an inadequate attempt by the Crown to remedy these matters in 1956. The Tribunal also found that the Crown took an unusually active role in respect of Lake Horowhenua and the Hōkio Stream, and that the Crown was complicit in the pollution and environmental degradation of these taonga.

The Tribunal recommended that the Crown negotiate with Muaūpoko a Treaty settlement that will address the harm suffered, and that the settlement include a contemporary Muaūpoko governance structure with responsibility for the administration of the settlement.

The Tribunal further recommended that the Crown legislate as soon as possible for a contemporary Muaūpoko governance structure to act as kaitiaki for Lake Horowhenua and the Hōkio Stream, and associated waters and fisheries. This will require the Crown to undertake detailed negotiations with the Lake Horowhenua Trustees, the lake bed owners, and all of Muaūpoko.

The Tribunal recommended that the Crown provide to the new Lake Horowhenua Muaūpoko governance structure annual appropriations to assist it to meet its kaitiaki obligations in accordance with its legislative obligations.

The Tribunal noted that it had not yet heard the claims of or made recommendations in respect of Ngāti Raukawa and Te Āti Awa/Ngāti Awa ki Kapiti. Those iwi will be heard as part of forthcoming Porirua ki Manawatū hearings.

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

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

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

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

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

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

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

‘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.