Rapua ngā tuhinga ruku tātari

   ‘With hindsight, the Moriori claim deserved an early hearing in the Tribunal’s process, for it raised issues at the frontier of our modern government. A just conclusion to recent warfare was an issue squarely before Maori and the Governor when the Treaty of Waitangi was signed, and the issue shed light on a major purpose of the Treaty: to ensure justice for all people.’

    Justice Durie

The raft of issues considered in the Rekohu Report are unique and complex, and a thorough reading of the entire report is necessary to gain a full understanding of the context of the claims and the ensuing recommendations of the Tribunal.

The report looks closely at the period soon after the signing of the Treaty of Waitangi in 1840 and the annexation of Rekohu in 1842. Some of the main findings of the Tribunal’s report are that:

The Native Land Court adopted criteria set by the Crown that were inadequate in Treaty terms when it excluded Moriori from ownership of any but the main island, and in that case awarding 97 per cent of the land to Ngati Mutunga and only 3 per cent to Moriori. The Tribunal considered the awards were patently wrong and that Moriori were entitled to at least 50 per cent.

The ancestral right to land was with Moriori. Maori were recent invaders.

The Tribunal did not accept the Crown’s argument that Maori agreed to land tenure reform proposing individual ownership, individual share trading, or Native Land Court control of title devolution and succession.

The Tribunal recommended that compensation is due to Ngati Mutunga for the lasting impact of the Crown’s policy on tenure reform.

The Tribunal has proposed a new indigenous land law for Rekohu which would be the modern equivalent for the customary ethic with land titles held in trust by a runanga (formed along traditional lines) which allocated long-term occupation rights. The Runanga would provide facilities for visiting relatives out of the rents among other things. The Tribunal recommends that the Crown fund a body to promote the development of a new Maori land law specific to the Chathams.

The issue of slavery as a result of the invasion of Rekohu by Ngati Tama and Ngati Mutunga in 1835 was an issue ended in the mainland of New Zealand by 1839. This was not so in Rekohu where it continued for 20 years after annexation without Crown intervention. The Tribunal found that the failure of the Crown to intervene cost Moriori many lives, and prejudiced later land claims

The Tribunal in the Chatham Islands inquiry was also asked to look at a number of contemporary issues including the Tribunal's jurisdiction, the status of Moriori and their right to make claims under the Treaty of Waitangi, health and education, conservation management, fishing, and the ownership of Te Whaanga lagoon.

    ‘The scientific evidence is compelling: Moriori are the same people as Maori but, through isolation, they are unique as a Maori tribe.’

    Waitangi Tribunal

The owners of Oriwa 1B3 - a block of Maori freehold land - lodged a claim with the Tribunal objecting to a district scheme designation which proposed that the land be a public reserve. Following inquiries by Tribunal research staff and the commissioning and release of an exploratory research report on the matter, the Tribunal was formally advised that the Department of Conservation wanted the public reserve designation to be lifted. as a result, no recommendations needed to be made.

In 1987, the Waitangi Tribunal received an application from a Mr P H E Bloomer, acting as agent for Matiu Love and James Mark, asking for an inquiry into ‘whether or not the Waikawa block would be returned to Maori descendants of original owners’. The claim was brought because the claimants feared that the land was about to be transferred to the new Land Corporation, a State-owned enterprise established under the State-owned Enterprises Act 1986.

In July 1987, Mr Bloomer wrote to the Tribunal indicating that he had received a letter from the Prime Minister stating that the Waikawa block would be retained by the Crown and that normal procedures as to lands no longer required by the Crown would be instituted.

Subsequently, Mr Bloomer formally withdrew the claim in June 1988 after the Honourable Peter Tapsell agreed in principle to arrange for the return of the land to Matiu Love and his associated relatives. The Tribunal’s report on the matter, signed by Deputy Chief Judge Ashley McHugh, was issued on 27 June 1989.

In January 1990, the Waitangi Tribunal registered claim Wai 84, concerning the construction of the Turangi township. The town, which was built in the 1960s to house several thousand construction workers and related service people employed on the Tongariro power development scheme, was situated on ancestral land of the Ngāti Turangitukua hapū of Ngāti Tūwharetoa. The claim was made by Mahlon Nepia on behalf of himself and Arthur Grace of Ngāti Turangitukua and sought the return of certain properties in the township.

The Tribunal constituted to hear the claim comprised Professor Gordon Orr (presiding), Sir Hugh Kawharu, Professor Evelyn Stokes, and Hepora Young. In August 1993, the Tribunal granted urgency to the claim on the ground that the Crown was selling land within the claim area over the objections of claimants and that sacred sites were involved. The claim was heard in April, September, and October of 1994.

The Tribunal heard evidence from both Crown and claimants on the process by which the hapū were alienated from much of their land in the period between 1964 and 1983; the assurances and undertakings made to Ngāti Tūwharetoa by Crown officials which persuaded the owners to agree in principle with the proposal to build the town within their rohe; and the Crown's alleged failure to honour many of these promises.

As well, many people recounted their personal experiences. Bill Asher spoke of what had been taken from Ngāti Turangitukua:

We certainly have gained much in the way of facilities. But we have lost much too. When I was young, I didn't think about the implications of the coming of the township to our wahi tapu. We younger people regarded those as the responsibility of our kaumatua. We left all that to them. But once the project got underway, the role of those kaumatua diminished, and they weren't consulted about the effect of the works on the wahi tapu. As a result, many of those places have passed from us, and we are emotionally, spiritually, and culturally poorer as a result.

Tuatea Smallman summed up the effects of the hydro development on his family:

By severing the lands from the Maori title, the Ministry of Works has alienated the owners, our grandmother and her children, from the land. Younger members of the whanau have been denied their land. Loss of land to us means a loss of dignity, pride, and a distancing of whanau members through alienation to a feeling of mokaitanga [dependency, like being slaves]. We have lost our values, and our esteem, and a rift between families has developed. We fear our children will leave their turangawaewae.

The Tribunal heard much moving evidence about the effect of the township's construction upon the small rural community:

The desecration of our precious wahi tapu caused our people, and particularly our old people, great distress. In all the confusion and enormous changes that were happening in Turangi, we often didn't find out until too late that more was being done in sacred areas. And the Ministry of Works didn't want us to find out. …
Those places are like important signposts to our history and mana. Many of the signposts have disappeared without trace. Other signposts are so changed as to be unreadable. We will never have the same access to our past as a result. …
When the Ministry of Works came to our area, we had kaumatua here who had great authority and many responsibilities. After the Ministry of Works took over, these people were reduced in status almost overnight because they no longer had any authority over what happened in our rohe. There was nothing they could say or do which would make the government people listen. This was very hard for those old people to accept and it affected them very badly.
—Arthur Grace

I was told by Arthur Grace that my grandfather was still in the house when they came to bulldoze it down. I don't know why they had to bulldoze that house. It was only 21 years old. My grandfather was watching what was happening, standing there on the road with my little sister Josephine, another whangai who lived with my grandfather. He was crying and his suitcase was there beside him. Arthur went and spoke to the men with the bulldozer but they didn't listen and they drove a bulldozer into the back of the house right in front of my grandfather. They didn't even wait until he had left before knocking the house down. So Arthur picked up Josephine and my grandfather and took them away in the truck. All our turkeys and pigs and dogs and cats were let loose running around. We had about 30 turkeys then. They were all just left to run away. My grandfather was taken to the [Ngāti Hine] marae to live, because there was nowhere else for him to go. He was moved from family to family, but he used to lock himself up in his room all the time. It was only a few months later that he died.
—Taima Bell

At about the same time, one of our whanaunga [relatives] Mr Tewe Eru, who was also an old man, refused to leave the house that Ministry of Works wanted to take from him. The house was bulldozed before his eyes, and all his belongings were left on the road. All of the local people knew this and it terrified my mother. She thought that she would be the next one, that her house would be bulldozed and she would be left with nowhere to go.
It was at this stage that my mother took to her bed. …
My mother was not an old woman. She was only 62, and a woman of vitality. She had asthma, but she was not an invalid. It was the Ministry of Works that killed her. I hated the Ministry of Works for what they did to my mother. They seemed to have no feeling at all for how their actions were affecting the lives of our people.
—Dulcie Gardiner

The way the Ministry of Works went about doing what they did caused great agony to people and affected their lives very deeply. The damage to our old people's happiness and health can never be compensated for. What makes me particularly resentful is that I don't believe that there was any necessity for the Ministry of Works to take that land from the backs of people's houses, and the road taking and survey could have been located elsewhere to the many acres where no one lived. Another anomaly is that the rest of that area … was never used for the development of the township; it was just sold off.
—Hono Lord

The report was presented to the Minister of Maori Affairs and the claimants in September 1995. In it, the Tribunal found that, in regards to Turangi, the Treaty of Waitangi 'was all but ignored by the Crown in its dealings with Maori'. And, further, that, in fulfilling its wish to construct the Turangi township on the claimants' ancestral land, the Crown had the unqualified backing of 'draconian statutory powers' (ie, the Public Works Act 1928 and the Turangi Township Act 1964) to take the land:

These Acts gave the Crown the power to take the claimants' land compulsorily for the establishment of a permanent Turangi township. This could be done without any notice to the owners or any right of objection by them; without any obligation to consult the owners; without the owners' consent; without any obligation to return land not required for the purpose for which it was taken; at a price negotiated with a statutory official on behalf of multiple owners rather than with the owners themselves; and on conditions laid down by legislation and not freely negotiated. The Crown could insist on taking the freehold of the land, irrespective of the preference of the owners. In addition, the Crown asserted the right, which was of dubious legality, to enter the claimants' lands with its bulldozers, without notice to or the consent of the owners, well before any proclamation taking the land had been gazetted. Against these powers, the Maori owners had no defence. It is not possible to reconcile these far-reaching powers with the Crown's Treaty obligation actively to protect the rangatiratanga of Maori in and over their land.

The Tribunal recorded 13 breaches of Treaty principles by the Crown, most of which stemmed from the Crown's failure to actively protect the rangatiratanga of Ngāti Turangitukua over their ancestral land. The Tribunal wrote that:

At the heart of the claim lay the failure of the Crown to honour many of the undertakings and assurances it gave to the owners, which formed the basis of the approval in principle they gave to the construction of a township on their land. This failure effectively vitiated such approval.

As a result, the Crown took up to double the amount of land that it had undertaken to take and valuable industrial land was not returned after 10 to 12 years as promised. Compensation was inadequate; the economic base of the people was seriously eroded; irreplaceable wahi tapu have been destroyed or desecrated; waterways and fisheries are degraded and flooding has occurred; and the lack of adequate consultation with the tangata whenua and the failure to respect the mana of the people throughout the whole distressing experience has increased their level of alienation.

The Tribunal found that the claimants had been prejudicially affected by the provisions of the Public Works Act 1928 and the Turangi Township Act 1964, in that both Acts were fundamentally inconsistent with the basic guarantee given in article 2 of the Treaty of Waitangi that Maori could keep their land until such time as they wished to sell it at a price agreed with the Crown.

The Tribunal recommended that amendments be made to the sections of the Public Works Act 1981 dealing with the taking of Maori land by the Crown or a local authority and the offering back of surplus land, and it recommended that the Act should be amended so as to give effect to the principles of the Treaty of Waitangi.

In the interest of facilitating an early settlement of remedies, the Tribunal proposed that the claimants and Crown enter into direct negotiations but noted that, if the parties were unable to reach an agreement, the Tribunal would be amenable to hear the parties on the question of remedies and to make appropriate recommendations.

Ngāti Turangitukua and the Crown did enter into negotiations, which took place during 1995 and 1996, but by July 1996, they had come to a standstill. The claimants then returned to the Tribunal to ask for a hearing on remedies.

After hearing evidence and submissions from the claimants and Crown in February and July 1997, the Tribunal retired to consider the issue of remedies. The following year, in July, the Tribunal released the Turangi Township Remedies Report, in which, for the first time, the Tribunal exercised its power to make binding recommendations. These recommendations were that memorialised and Crown-owned non-memorialised land to the value of $6.1 million be returned to Ngāti Turangitukua by the Crown. The Tribunal further recommended that the Crown pay Ngāti Turangitukua monetary compensation of at least $1million and that it meet the costs incurred by the hapū in pursuing the claim.

The Crown and claimants had 90 days to reach an agreement before the binding recommendations became final. This, they did, and the Crown and Ngāti Turangitukua signed a deed of settlement at Turangi in September 1998. The deed, which contained a mix of fiscal and non-fiscal redress and a clear acknowledgement of the Crown's Treaty breaches, would 'help restore Ngāti Turangitukua's mana and rangatiratanga' said the Minister in Charge of Treaty of Waitangi Negotiations, the Honourable Doug Graham. The compensation package was valued at $5 million.

In January 1990, the Waitangi Tribunal registered claim Wai 84, concerning the construction of the Turangi township. The town, which was built in the 1960s to house several thousand construction workers and related service people employed on the Tongariro power development scheme, was situated on ancestral land of the Ngāti Turangitukua hapū of Ngāti Tūwharetoa. The claim was made by Mahlon Nepia on behalf of himself and Arthur Grace of Ngāti Turangitukua and sought the return of certain properties in the township.

The Tribunal constituted to hear the claim comprised Professor Gordon Orr (presiding), Sir Hugh Kawharu, Professor Evelyn Stokes, and Hepora Young. In August 1993, the Tribunal granted urgency to the claim on the ground that the Crown was selling land within the claim area over the objections of claimants and that sacred sites were involved. The claim was heard in April, September, and October of 1994.

The Tribunal heard evidence from both Crown and claimants on the process by which the hapū were alienated from much of their land in the period between 1964 and 1983; the assurances and undertakings made to Ngāti Tūwharetoa by Crown officials which persuaded the owners to agree in principle with the proposal to build the town within their rohe; and the Crown's alleged failure to honour many of these promises.

As well, many people recounted their personal experiences. Bill Asher spoke of what had been taken from Ngāti Turangitukua:

We certainly have gained much in the way of facilities. But we have lost much too. When I was young, I didn't think about the implications of the coming of the township to our wahi tapu. We younger people regarded those as the responsibility of our kaumatua. We left all that to them. But once the project got underway, the role of those kaumatua diminished, and they weren't consulted about the effect of the works on the wahi tapu. As a result, many of those places have passed from us, and we are emotionally, spiritually, and culturally poorer as a result.

Tuatea Smallman summed up the effects of the hydro development on his family:

By severing the lands from the Maori title, the Ministry of Works has alienated the owners, our grandmother and her children, from the land. Younger members of the whanau have been denied their land. Loss of land to us means a loss of dignity, pride, and a distancing of whanau members through alienation to a feeling of mokaitanga [dependency, like being slaves]. We have lost our values, and our esteem, and a rift between families has developed. We fear our children will leave their turangawaewae.

The Tribunal heard much moving evidence about the effect of the township's construction upon the small rural community:

The desecration of our precious wahi tapu caused our people, and particularly our old people, great distress. In all the confusion and enormous changes that were happening in Turangi, we often didn't find out until too late that more was being done in sacred areas. And the Ministry of Works didn't want us to find out. …
Those places are like important signposts to our history and mana. Many of the signposts have disappeared without trace. Other signposts are so changed as to be unreadable. We will never have the same access to our past as a result. …
When the Ministry of Works came to our area, we had kaumatua here who had great authority and many responsibilities. After the Ministry of Works took over, these people were reduced in status almost overnight because they no longer had any authority over what happened in our rohe. There was nothing they could say or do which would make the government people listen. This was very hard for those old people to accept and it affected them very badly.
—Arthur Grace

I was told by Arthur Grace that my grandfather was still in the house when they came to bulldoze it down. I don't know why they had to bulldoze that house. It was only 21 years old. My grandfather was watching what was happening, standing there on the road with my little sister Josephine, another whangai who lived with my grandfather. He was crying and his suitcase was there beside him. Arthur went and spoke to the men with the bulldozer but they didn't listen and they drove a bulldozer into the back of the house right in front of my grandfather. They didn't even wait until he had left before knocking the house down. So Arthur picked up Josephine and my grandfather and took them away in the truck. All our turkeys and pigs and dogs and cats were let loose running around. We had about 30 turkeys then. They were all just left to run away. My grandfather was taken to the [Ngāti Hine] marae to live, because there was nowhere else for him to go. He was moved from family to family, but he used to lock himself up in his room all the time. It was only a few months later that he died.
—Taima Bell

At about the same time, one of our whanaunga [relatives] Mr Tewe Eru, who was also an old man, refused to leave the house that Ministry of Works wanted to take from him. The house was bulldozed before his eyes, and all his belongings were left on the road. All of the local people knew this and it terrified my mother. She thought that she would be the next one, that her house would be bulldozed and she would be left with nowhere to go.
It was at this stage that my mother took to her bed. …
My mother was not an old woman. She was only 62, and a woman of vitality. She had asthma, but she was not an invalid. It was the Ministry of Works that killed her. I hated the Ministry of Works for what they did to my mother. They seemed to have no feeling at all for how their actions were affecting the lives of our people.
—Dulcie Gardiner

The way the Ministry of Works went about doing what they did caused great agony to people and affected their lives very deeply. The damage to our old people's happiness and health can never be compensated for. What makes me particularly resentful is that I don't believe that there was any necessity for the Ministry of Works to take that land from the backs of people's houses, and the road taking and survey could have been located elsewhere to the many acres where no one lived. Another anomaly is that the rest of that area … was never used for the development of the township; it was just sold off.
—Hono Lord

The report was presented to the Minister of Maori Affairs and the claimants in September 1995. In it, the Tribunal found that, in regards to Turangi, the Treaty of Waitangi 'was all but ignored by the Crown in its dealings with Maori'. And, further, that, in fulfilling its wish to construct the Turangi township on the claimants' ancestral land, the Crown had the unqualified backing of 'draconian statutory powers' (ie, the Public Works Act 1928 and the Turangi Township Act 1964) to take the land:

These Acts gave the Crown the power to take the claimants' land compulsorily for the establishment of a permanent Turangi township. This could be done without any notice to the owners or any right of objection by them; without any obligation to consult the owners; without the owners' consent; without any obligation to return land not required for the purpose for which it was taken; at a price negotiated with a statutory official on behalf of multiple owners rather than with the owners themselves; and on conditions laid down by legislation and not freely negotiated. The Crown could insist on taking the freehold of the land, irrespective of the preference of the owners. In addition, the Crown asserted the right, which was of dubious legality, to enter the claimants' lands with its bulldozers, without notice to or the consent of the owners, well before any proclamation taking the land had been gazetted. Against these powers, the Maori owners had no defence. It is not possible to reconcile these far-reaching powers with the Crown's Treaty obligation actively to protect the rangatiratanga of Maori in and over their land.

The Tribunal recorded 13 breaches of Treaty principles by the Crown, most of which stemmed from the Crown's failure to actively protect the rangatiratanga of Ngāti Turangitukua over their ancestral land. The Tribunal wrote that:

At the heart of the claim lay the failure of the Crown to honour many of the undertakings and assurances it gave to the owners, which formed the basis of the approval in principle they gave to the construction of a township on their land. This failure effectively vitiated such approval.

As a result, the Crown took up to double the amount of land that it had undertaken to take and valuable industrial land was not returned after 10 to 12 years as promised. Compensation was inadequate; the economic base of the people was seriously eroded; irreplaceable wahi tapu have been destroyed or desecrated; waterways and fisheries are degraded and flooding has occurred; and the lack of adequate consultation with the tangata whenua and the failure to respect the mana of the people throughout the whole distressing experience has increased their level of alienation.

The Tribunal found that the claimants had been prejudicially affected by the provisions of the Public Works Act 1928 and the Turangi Township Act 1964, in that both Acts were fundamentally inconsistent with the basic guarantee given in article 2 of the Treaty of Waitangi that Maori could keep their land until such time as they wished to sell it at a price agreed with the Crown.

The Tribunal recommended that amendments be made to the sections of the Public Works Act 1981 dealing with the taking of Maori land by the Crown or a local authority and the offering back of surplus land, and it recommended that the Act should be amended so as to give effect to the principles of the Treaty of Waitangi.

In the interest of facilitating an early settlement of remedies, the Tribunal proposed that the claimants and Crown enter into direct negotiations but noted that, if the parties were unable to reach an agreement, the Tribunal would be amenable to hear the parties on the question of remedies and to make appropriate recommendations.

Ngāti Turangitukua and the Crown did enter into negotiations, which took place during 1995 and 1996, but by July 1996, they had come to a standstill. The claimants then returned to the Tribunal to ask for a hearing on remedies.

After hearing evidence and submissions from the claimants and Crown in February and July 1997, the Tribunal retired to consider the issue of remedies. The following year, in July, the Tribunal released the Turangi Township Remedies Report, in which, for the first time, the Tribunal exercised its power to make binding recommendations. These recommendations were that memorialised and Crown-owned non-memorialised land to the value of $6.1 million be returned to Ngāti Turangitukua by the Crown. The Tribunal further recommended that the Crown pay Ngāti Turangitukua monetary compensation of at least $1million and that it meet the costs incurred by the hapū in pursuing the claim.

The Crown and claimants had 90 days to reach an agreement before the binding recommendations became final. This, they did, and the Crown and Ngāti Turangitukua signed a deed of settlement at Turangi in September 1998. The deed, which contained a mix of fiscal and non-fiscal redress and a clear acknowledgement of the Crown's Treaty breaches, would 'help restore Ngāti Turangitukua's mana and rangatiratanga' said the Minister in Charge of Treaty of Waitangi Negotiations, the Honourable Doug Graham. The compensation package was valued at $5 million.

In May 1989, Pauline Tangiora lodged a claim with the Tribunal seeking the return of five acres at Mahia owned by the Wairoa District Council and formerly used as a roadman’s cottage.

In its report of 19 December 1990, signed by Chief Judge Eddie Durie, the Tribunal noted that the claim related to a local authority and that the Tribunal’s jurisdiction was to hear claims only against the Crown. The Tribunal did note that it might be possible to mount a Treaty argument relating to the Crown’s duty to return gifted land, but further noted that such an argument had not been made. In addition, it appeared to the Tribunal that the Maori Land Court was able to assist in this inquiry and to revest the land to suit. Accordingly, the Tribunal did not inquire further into this claim, but it gave leave for the claim to be revived in the event that a land return was not proceeded with or additional information was uncovered.

As old Father Thames is to the Londoner
As the Ganges is sacred to the Indian
As the Jordan is spiritual to the Palestines
So is the Mohaka all these things to Ngati Pahauwera
—Ramon Joe

The Mohaka River Report 1992 was the first report concerning Ngati Kahungunu and the East Coast. It was also one of the first of the Waitangi Tribunal’s ‘rivers reports’. The claim concerned the tino rangatiratanga of Ngāti Pahauwera over the Mohaka River and was brought by the late Ariel Aranui, for himself and on behalf of Ngāti Pahauwera, in January 1990. The claimants said that their tino rangatiratanga over the river, as confirmed and guaranteed in article 2 of the Treaty of Waitangi, had never been relinquished.

The word rangatiratanga is one which Ngati Pahauwera favours. That is the mana, the essential force, that they speak of in respect of their river. That is the spirit of them all and the power, essential force and awe. Their rangatiratanga is the Mohaka River.
—Charlie King

Rangatiratanga of a river as a ‘spiritual, subsistence’ and economic base can be a tremendous heritage and resource. This would have continued for Ngati Pahauwera if the Treaty and its promises had been honoured. However … Government neglect of Maori Sovereignty in terms of Article 2 occurred.

If our rangatiratanga over the river is recognised … we will be able to sustain our life and begin to rebuild a corporate resource base and offer real hope for the development of Ngati Pahauwera people today and for future generations.
—Tureti Moxon

The river claim formed part of a wider claim relating to tribal lands in Hawke’s Bay and Wairarapa. In November 1991, it was severed from that wider claim and accorded urgency by the Tribunal at the request of the claimants because the Planning Tribunal had recommended to the Minister for the Environment that a national water conservation order be placed over the river. The claimants alleged that the making of such an order without their consent would usurp their rangatiratanga and be a breach of the principles of the Treaty.

We always talk about our river, the control of it, and its spirituality. These are the waters of sustenance.

Even though administration of the river and the land has passed into pakeha hands, we retain the control. It is in these treasures (ie the land and the river) that rests the mana. This is what we are fighting for. We know that this is where our salvation is. The control of the river has been our mana from way back. It came from our ancestors and down through the generations.
—Canon Huata

Ngāti Pahauwera’s claim related to the lower reaches of the Mohaka, and they claimed that the river, including its waters, bed, and fisheries, was a taonga of theirs. In particular, they placed great emphasis on the role that the river played in their tribal identity.

The river is a taonga that we as kaitiaki know we have to preserve. Our ancestors taught us to respect the river and if we respected the river, the river looked after us. If the river is desecrated, it will affect the very deep beliefs we have about the river. That is our Taniwha, the life force of the river, our respect for the river.
—Derek Huata

Ngati Pahauwera is at the beginning of the river, at the river mouth here and out to sea. To us, those who stand on the marae, that is the spirit which is upon us. Our sacred mountain, the river of Mohaka, Ngati Pahauwera are the people.

The spirituality of the river, the mana, the sacredness and the authority relates to Ngati Pahauwera solely. The life of the river we do not want interfered with, lest it be lost. It must be left to flow onward, in the way that it did in the days of the elders. If they were here they would be at the river as it flows onward.
—Charlie King

The Mohaka River Tribunal comprised Bill Wilson (presiding), Bishop Manuhuia Bennett, Mary Boyd, Dr Ngapare Hopa, and Georgina Te Heuheu, and hearings were held in Wellington, Mohaka, and Napier between April and June of 1992. There, the claimants argued that the Crown, through legislation (in particular, the Water and Soil Conservation Act 1967), had failed to recognise and give effect to their rangatiratanga over the Mohaka River. They claimed that this legislation was inconsistent with the principles of the Treaty because it failed to recognise tribal authority and to provide appropriate mechanisms for its exercise. The claimants sought a finding that the relevant statutes failed to provide for rangatiratanga, in breach of the Crown’s Treaty obligations, and that new forms of authority for regulating the use of waters and other natural resources should be devised.

The Tribunal released its report in November 1992. In it, the Tribunal found that the Crown’s obligation to protect Māori property to the fullest extent reasonably practicable was crucial to the claim and that, far from doing this, the Crown had actively undermined that interest by promoting legislation and adopting practices which had given little or no recognition to the position of Ngāti Pahauwera. The Tribunal reached the conclusion that the Mohaka River was a taonga of Ngāti Pahauwera when the Treaty was signed and still remained so. Ngāti Pahauwera did not relinquish te tino rangatiratanga over the river, or transfer ownership of its bed or waters. All statutory provisions which assumed that the Crown owned the riverbed and waters, or which conferred exclusive control over the waters on central or local government, were in breach of the Treaty.

We urge Ngati Pahauwera and the Crown, as treaty partners, to enter negotiations as soon as possible as to our recommendations. We are confident that the outcome of such discussions will be an agreement which recognises the legitimate interests in the river of both Ngati Pahauwera and the other citizens of this country and which demonstrates the Treaty of Waitangi can be made to work in a sensible and realistic way in its application to a beautiful river which is both an undoubted taonga of Ngati Pahauwera and a great asset to the country as a whole.
—The Waitangi Tribunal

In reaching its findings, the Tribunal had traversed the issue of the ad medium filum aquae rule, a common-law presumption that would also be argued in other river claims. Ad medium filum aquae holds that the ownership of land adjoining a non-tidal river also includes the ownership of the bed of the river to its mid point. Thus, if the bank of the river is sold, that portion of the riverbed is also sold. The Tribunal distinguished the present claim from the 1962 Court of Appeal decision in Re the Bed of the Whanganui River, and found that the presumption did not apply in this case because the parties to the sale deed would not have intended that the purchase of the land would carry with it the ownership of the adjacent half of the Mohaka riverbed:

In any event the Crown was not entitled to rely on the ad medium filum aquae rule, an English common law presumption which would have been known to few if any settlers in this country in 1851. To rely on such an esoteric rule to acquire a taonga of Ngati Pahauwera without their knowledge would we think have been clearly unjust and in breach of article 2 of the Treaty.

 

The quantification of property loss, personal injury, social impairment, and forfeited development opportunities may assist the consideration of comparative equities between claimant groups, but it is not necessarily determinative of the measures appropriate for relief in any one case today. As we consider further at the end of this report, in resolving historical claims a pay-off for the past, even if that were possible, may not be as important as the strategies required to ensure a better future.
—The Waitangi Tribunal

When The Taranaki Report: Kaupapa Tuatahi was released in 1996, it was hailed by many as one of the Tribunal's most important reports. Indeed, the Minister in Charge of Treaty of Waitangi Negotiations at the time, the Honourable Doug Graham, urged all New Zealanders to read it. The report dealt with 21 claims concerning the Taranaki district and canvassed the land wars and confiscations in the area, as well as the story of Parihaka.

The Tribunal constituted to hear the claims was made up of Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, Emarina Manuel, Professor Gordon Orr, and Professor Keith Sorrenson. Twelve hearings were held between September 1990 and June 1995, and the report was presented to the Minister of Maori Affairs and the claimants on 11 June 1996.

The Taranaki claims could be the largest in the country. There may be no others where as many Treaty breaches had equivalent force and effect over a comparable time. 'For the Taranaki hapu, conflict and struggle have been present since the first European settlement in 1841. There has been continuing expropriation by various means from purchase assertions to confiscation after war. In this context, the war itself is not the main grievance. The pain of war can soften over time. Nor is land the sole concern. The real issue is the relationship between Maori and the Government. It is today, as it has been for 155 years, the central problem.
—The Waitangi Tribunal

The complaints stemmed from land confiscations that took place during the 1860s wars, which began in Taranaki before extending elsewhere. In fact, armed initiatives did not cease in the region for an unparalleled nine years, and the Tribunal commented on the effect that this had on local Maori:

If war is the absence of peace, the war has never ended in Taranaki, because that essential prerequisite for peace among peoples, that each should be able to live with dignity on their own lands, is still absent and the protest over land rights continues to be made.

The confiscations came with an undertaking that the lands necessary for hapu survival would be returned without delay, but the Tribunal found that this promise was not maintained. Instead, many hapu were left with nothing of their own to live on and became squatters on Crown land:

Taranaki Maori were dispossessed of their land, leadership, means of livelihood, personal freedom, and social structure and values. As Maori, they were denied their rights of autonomy, and as British subjects, their civil rights were removed. For decades, they were subjected to sustained attacks on their property and persons.

The Tribunal thus saw disempowerment as the main foundation of the claims:

By ‘disempowerment’, we mean the denigration and destruction of Maori autonomy or self-government. Extensive land loss and debilitating land reform would likely have been contained had Maori autonomy and authority been respected, as the Treaty required. Maori autonomy is pivotal to the Treaty and to the partnership concept it entails.

As Sir William Martin, our first Chief Justice, said, when opposing land confiscation in 1864:

The example of Ireland may satisfy us how little is to be effected towards the quieting of a country by the confiscation of private land … how the claim of the dispossessed owner is remembered from generation to generation and how the brooding sense of wrong breaks out from time to time in fresh disturbance and crime.

The Tribunal considered that an endowment that provided adequately for tribal autonomy in the future was what was important, not payments for individual benefit. While the Tribunal thought that, based on legal principles, some billions of dollars were probably owed for the land, leaving aside exemplary damages or compensation for loss of rents and the devaluation of annuities, it accepted that such a quantum of damages would not be possible and recommended only that generous reparation be made:

the settlement of historical claims is not to pay off for the past, even were that possible, but to take those steps necessary to remove outstanding prejudice and prevent similar prejudice from arising; for the only practical settlement between peoples is one that achieves a reconciliation in fact.

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.

In November 1992, the Tribunal hearing the Ngawha geothermal resource claims acceded to an application by certain Te Arawa claimants to accord urgency to their claims, which concerned their interest in a geothermal resource in the Rotorua district. The application was granted because of a concern that any findings and recommendations of the Tribunal on the Ngawha claim could impact directly or indirectly on this and other geothermal resource claims. In addition, in early July 1993 the Bay of Plenty Regional Council was due to publicly notify its proposed regional plan for the Rotorua geothermal field, and it was considered desirable that the Tribunal issue its report before that occurred. The hearings were thus held between February and April of 1993.

Given all the information we have had yesterday and this morning I believe we have argued we own the resource, we owned it from the dawn of time … and nowhere along the line of ancestral descent were our rights alienated or given away; nowhere, anywhere did anyone come and take it … anyone who can claim ownership should do what we have done … and we would like to see their whakapapa, their genealogy … the way they have lived on the land; and if they conquered, when and how, and sing waiatas that are appropriate to those incidents …
—Joseph Malcolm

The Tribunal found that the Arawa people assert an undisputed mana whenua over all the lands represented in the claims:

In the claims before us, the respective claimants have rangatiratanga over hot pools and springs which, in each case, are a highly valued taonga over which they exercise kaitiakitanga, and which they wish to preserve.

Because of time constraints, the Tribunal of Professor Gordon Orr (presiding), Sir Hugh Kawharu, Joanne Morris, and William Taylor issued this preliminary report in June 1993. It was confined to the claimants' interest in surface manifestations of the geothermal resource and the impact of the Resource Management Act 1991 on their Treaty rights to their geothermal taonga. The Tribunal reiterated a recommendation it had made in the Ngawha Geothermal Resource Report that the Resource Management Act be amended to take account of the Treaty of Waitangi. The Tribunal further recommended that a moratorium be imposed on the granting of resource consents, the notification or making of regional plans, and the imposition of royalties or rentals in relation to geothermal fields or resources which were the subject of Treaty claims, until such time as those claims were determined. The Tribunal also recommended that the Crown and claimants discuss the matter of royalties and resource rentals generally, and it left the way open for the parties to return to the Tribunal for urgent consideration should they fail to reach agreement on those matters.