Rapua ngā tuhinga ruku tātari

The Tribunal did not revisit the general issues surrounding the closure of Napier Hospital. Neither did they consider the merits of restoring Napier Hospital to its former status. That was not a remedy the claimants were seeking.
—Deputy Chief Judge Isaac

The claim required the Tribunal to look at the historical context of hospital services in Napier from 1851 to 1940 and in particular the promise of a hospital to Ahuriri Māori in 1851. The Tribunal found that there was widespread and severe ill health, and the impact of introduced diseases, was a principle cause of the crisis of survival which saw a halving of the national Māori population during the half century after 1840. Ahuriri Māori did not escape, and in the 1930s their health status still lagged far behind that of Pakeha:

Whether the health status of Ahuriri Māori has improved or worsened over the last decade, the disparity in health status between Ahuriri Maori and non-Maori has shown little if any reduction and has remained markedly adverse. For many Ahuriri Maori the health outcomes remain poor. A significant proportion of the ill health suffered by Ahuriri Maori was preventable, and not prevented.

The Tribunal looked at a number of issues that arose during the 1980s and 1990s in its report. These issues included consultation with Ahuriri Māori on decisions affecting the status of Napier Hospital with decisions to regionalise hospital services in Hastings and downgrade or close Napier Hospital. Representation at decision making levels was another issue where the Crown was in breach of the principle of partnership with an imbalance of Māori representation on the Hawke’s Bay Hospital Board. Neither was there sufficient participation by Māori to sustain the Māori Health Unit’s objectives.

The Tribunal recommended a community health centre governed by trustees on behalf of Ahuriri Māori and bicultural in character, serving the special needs of Ahuriri Māori but open to all. It suggested that the centre should function as an integrated care organisation providing a variety of primary, public, promotional, educational, and rongoa Māori services.

The Tribunal recommended that the Crown take early steps to conclude an agreement in principle with the claimants on the concept, and that the Napier Hospital site should be transferred to the Residual Health Management Unit and the proceeds be vested in trust, for the purpose of endowering the community health centre.

   'A wananga is characterised by teaching and research that maintains, advances and disseminates knowledge and develops intellectual independence, and assists the application of knowledge regarding ahuatanga Maori (Maori tradition) according to tikanga Maori (Maori custom).'
    Section 162(4)(b)(iv) of the Education Act 1989

The Wananga Capital Establishment Report relates to a claim by three wananga Maori established as tertiary education institutions under the Education Act 1989. The claim concerned the failure of the Crown to recognise the right of Maori, in terms of the Treaty of Waitangi, to receive capital funding, in order to provide properly for the education of Maori through programmes, and in an environment, designed to enhance their tertiary educational opportunities.

‘As Maori studies is located within a western university, it is subject to the western paradigm of knowledge which has severely hindered its growth. Such a circumstance is not tolerated for western science nor should it be tolerated for matauranga Maori.’
Charles Royal

‘The rapid increase in Maori participation in tertiary education requires a variety of strategies. That there is not only one strategy to be followed, nor only one type of provider to be involved. However, the three wananga are important elements in any strategy. They are different from other providers and different from each other. This diversity is to be welcomed. All three wananga need agreed programmes for rapid development.’
Dr Norman Kingsbury

The claim was filed with the Waitangi Tribunal on 11 May 1998 and registered as Wai 718 on 19 May 1998. It was brought by Rongo Herehere Wetere on behalf of Te Tauihu o nga Wananga Association, which represented the three wananga concerned: Te Wananga o Aotearoa, Te Wananga o Raukawa, and Te Whare Wananga o Awanuiarangi. The claimants alleged that the Crown had failed to fund wananga equitably when compared to other tertiary education institutions, such as universities, polytechnics, and colleges of education. Urgency was sought for the hearing of the claim because two of the wananga were at serious risk of financial collapse, owing to a lack of capital funding.

On 30 June 1998, Judge Richard Kearney granted the claim urgency, and a Tribunal consisting of Judge Kearney, Josephine Anderson, and Keita Walker heard the claim in October, November, and December of that year. The report was presented to the Minister of Maori Affairs and the claimants on 28 April 1999.

The Tribunal found that the Crown's tertiary education policies had served to disadvantage wananga and place their operations at risk, and it recommended that the Crown make a one-off payment to each of the wananga sufficient to:

    * compensate them for moneys invested in their land, buildings, plant, and equipment;
    *  cover the cost of bringing the establishments up to a standard comparable to other tertiary education institutions;
    * and meet the proper costs and disbursements of the claimants incurred in the preparation and presentation of their claims.

    'Read as a whole, the Treaty of Waitangi created a partnership between the Crown and Maori. This partnership was a compact between two distinct peoples with their own culture, language, values, treasures, forms of property, and so forth. The Crown now acknowledges the concept that New Zealand is a bicultural polity and society. Biculturalism is an integral part of the overall Treaty partnership. It involves both cultures existing side by side in New Zealand, each enriching and informing the other. Under this overarching Treaty principle, therefore, the Crown's obligation to foster and support wananga is a clear and powerful one.

    'Rangatiratanga involves, at the very least, a concept of Maori self-management. … The wananga that have been recognised as tertiary education institutions have all developed out of the efforts of Maori iwi groups to provide tertiary education to, in the first instance, their own people; in the second instance, Maori students; and, in the third instance, anyone who wishes to embrace this particular form of education. As such, the efforts of these tribal groups to create and sustain tertiary education institutions are a vital exercise of rangatiratanga. The establishment of wananga as tertiary education institutions recognised by the State represents an attempt to engage actively with the Crown in the exercise of rangatiratanga in the management of new forms of tribal and Maori education. The Crown's Treaty obligation is to foster, support, and assist these efforts. In doing so, the Crown needs to ensure that wananga are able to remain accountable to, and involved in, the communities that created them.

    'In assuming the right to govern, the Crown took upon itself the duty actively to protect Maori interests. It is clear that te reo and matauranga Maori are taonga. It is also clear that the three wananga are playing an important role in studying, transmitting, and preserving these taonga. To meet its Treaty obligation to protect these taonga, the Crown should provide wananga with adequate support and resources in an appropriate manner.'
    The Waitangi Tribunal

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

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

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

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

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

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

In its Pakakohi and Tangahoe Settlement Claims Report, released in November 2000, the Waitangi Tribunal found that the Crown’s decision to accept the right of Ngāti Ruanui to settle historical claims in south Taranaki on behalf of Pakakohi and Tangahoe was ‘safe’.

The Tribunal found that the claimants, the Te Runanganui o Te Pakakohi Trust Incorporation and the Te Iwi o Tangahoe Incorporation, had not demonstrated a mandate to represent Pakakohi and Tangahoe in settlement negotiations. By contrast, the Tribunal found that there was insufficient evidence that the Crown’s decision to recognise the mandate of the Ngāti Ruanui negotiating body to represent these groups was ‘unsafe’.

The two claimants groups had alleged that the Crown’s decision not to negotiate separate settlements with them was in breach of the Treaty. However, the Tribunal found that the overwhelming majority of Tangahoe and Pakakohi people supported the proposed settlement.

The claims were heard in November 2000 by the Tribunal as a matter of urgency after the Crown and Ngāti Ruanui had signalled an intention to sign a $41 million settlement that month. The Tribunal had earlier that year attempted to resolve the matter by facilitating a mediation process between the parties, but that process had been unsuccessful.

In endorsing the Crown’s mandating decisions, the Tribunal nevertheless recommended that discussions between the parties continue in order to find ways to better express the importance of the Pakakohi and Tangahoe traditions to Ngāti Ruanui in the deed of settlement.Were those traditions not factored in, said the Tribunal, a real danger would exist that ‘the Pakakohi and Tangahoe identities would be written out of Taranaki history’. That, said the Tribunal, would create a fresh grievance out of the settlement of an old one.

'The Waitangi Tribunal has consistently acknowledged a Maori right of development of resources as a Treaty right resulting from article 2 … The right cannot be fossilised as at 1840 and limited only to resources known or used back then.'
    Claimant Counsel

Claim Wai 776 was received on 9 March 1999 and registered the next day. It was lodged by Rangiaho Everton and concerned a part of the electromagnetic spectrum known as the radio spectrum, which can be used for telecommunications and information technology in general (for example, the internet, cellular phones, video links, and video conferencing can all make use of it).

At that time, the Crown was preparing to auction the rights to manage the radio spectrum in the two gigahertz range. These rights were to last for 20 years and would give the successful bidders the right to issue licences to generate signals. The auction was planned to start on 29 March 1999.

    'It was the Crown's attempts to sell licences to operate portions of the spectrum into private ownership that had provoked Maori claims to the Waitangi Tribunal. Maori were concerned with the Crown's "commercial approach", which would see the alienation of the resource to powerful corporations.'
    Piripi Walker

On 15 March 1999, the claim was the subject of an urgency conference presided over by Judge Hingston. An urgent hearing of the claim followed, at which the claimant sought an urgent interim recommendation that the impending auction be postponed until a negotiated agreement with Maori on the issues had been reached.

    'In the context of the radio spectrum, the evidence has illustrated that Maori had traditional knowledge of and used parts of the electromagnetic spectrum. The development of part of that resource through technology able to channel radio waves into intelligible signals is a development to which Maori have a right.'
    Claimant counsel

The Tribunal of Judge Patrick Savage (presiding), Josephine Anderson, and Professor Keith Sorrenson made an interim majority finding that prima facie the claim was well founded. The Tribunal recommended that the auction be suspended and that negotiations be commenced with Maori, with a view to reserving for them a fair and equitable portion of the management rights.

The Crown decided to delay the proposed auction for three months to allow time for a substantive hearing to take place and for the Tribunal to report to the Government. That hearing was held between 30 April and 12 May, and the report was presented to the Minister of Maori Affairs and the claimants on 29 June 1999.

The Tribunal was again divided on its findings but, by different paths, reached the conclusion that there was a breach of the principles of the Treaty of Waitangi and that the claimant would be prejudiced if the Crown were to proceed with the auction without first reserving for Maori a fair and equitable portion of the frequencies. The Tribunal also found that the Radiocommunications Act 1989 was in breach of the principles of the Treaty of Waitangi. In reaching its findings, the Tribunal cited the Report on the Te Reo Maori Claim and the Treaty principles of partnership, rangatiratanga, fiduciary duty, mutual benefit, and development.

The Tribunal recommended that the Crown suspend the auction of the two gigahertz range of frequencies until it had negotiated with Maori to reserve a just share of the spectrum for them:

    'In our view, such an arrangement is preferable to some form of compensation by the Crown in lieu of spectrum frequencies. Maori must have hands-on ownership and management if they are to foot it in the "knowledge economy", as we believe they must in the coming millennium.

    'Because this is in effect a national Maori claim, we recommend that the Crown and Maori consider establishing a Maori trust, somewhat along the lines of the Crown Forestry Rental Trust … Any income that a Maori spectrum trust received - say, from the development or lease of frequencies - could be used to develop infrastructure for remaining Maori frequencies or to educate and train Maori staff for employment in that infrastructure or elsewhere in the telecommunications industry.'

The Waitangi Tribunal has consistently acknowledged a Maori right of development of resources as a Treaty right resulting from article 2 … The right cannot be fossilised as at 1840 and limited only to resources known or used back then.

—Claimant counsel

Claim Wai 776 was received on 9 March 1999 and registered the next day. It was lodged by Rangiaho Everton and concerned a part of the electromagnetic spectrum known as the radio spectrum, which can be used for telecommunications and information technology in general (for example, the internet, cellular phones, video links, and video conferencing can all make use of it).

At that time, the Crown was preparing to auction the rights to manage the radio spectrum in the two gigahertz range. These rights were to last for 20 years and would give the successful bidders the right to issue licences to generate signals. The auction was planned to start on 29 March 1999:

It was the Crown's attempts to sell licences to operate portions of the spectrum into private ownership that had provoked Maori claims to the Waitangi Tribunal. Maori were concerned with the Crown's ‘commercial approach’, which would see the alienation of the resource to powerful corporations.

On 15 March 1999, the claim was the subject of an urgency conference presided over by Judge Hingston. An urgent hearing of the claim followed, at which the claimant sought an urgent interim recommendation that the impending auction be postponed until a negotiated agreement with Maori on the issues had been reached. Claimant counsel noted:

In the context of the radio spectrum, the evidence has illustrated that Maori had traditional knowledge of and used parts of the electromagnetic spectrum. The development of part of that resource through technology able to channel radio waves into intelligible signals is a development to which Maori have a right.

The Tribunal of Judge Patrick Savage (presiding), Josephine Anderson, and Professor Keith Sorrenson made an interim majority finding that prima facie the claim was well founded. The Tribunal recommended that the auction be suspended and that negotiations be commenced with Maori, with a view to reserving for them a fair and equitable portion of the management rights.

The Crown decided to delay the proposed auction for three months to allow time for a substantive hearing to take place and for the Tribunal to report to the Government. That hearing was held between 30 April and 12 May, and the report was presented to the Minister of Maori Affairs and the claimants on 29 June 1999.

The Tribunal was again divided on its findings but, by different paths, reached the conclusion that there was a breach of the principles of the Treaty of Waitangi and that the claimant would be prejudiced if the Crown were to proceed with the auction without first reserving for Maori a fair and equitable portion of the frequencies. The Tribunal also found that the Radiocommunications Act 1989 was in breach of the principles of the Treaty of Waitangi. In reaching its findings, the Tribunal cited the Report on the Te Reo Maori Claim and the Treaty principles of partnership, rangatiratanga, fiduciary duty, mutual benefit, and development.

The Tribunal recommended that the Crown suspend the auction of the two gigahertz range of frequencies until it had negotiated with Maori to reserve a just share of the spectrum for them:

In our view, such an arrangement is preferable to some form of compensation by the Crown in lieu of spectrum frequencies. Maori must have hands-on ownership and management if they are to foot it in the ‘knowledge economy’, as we believe they must in the coming millennium.

Because this is in effect a national Maori claim, we recommend that the Crown and Maori consider establishing a Maori trust, somewhat along the lines of the Crown Forestry Rental Trust … Any income that a Maori spectrum trust received - say, from the development or lease of frequencies - could be used to develop infrastructure for remaining Maori frequencies or to educate and train Maori staff for employment in that infrastructure or elsewhere in the telecommunications industry.

The Waitangi Tribunal released its second preliminary report on Te Tau Ihu customary rights on 3 September 2007. This report follows an earlier preliminary report released in March 2007. The Tribunal has prepared these reports to assist claimants and the Crown with their negotiations by providing early findings on customary rights and their treatment by the Crown. The Tribunal’s main Te Tau Ihu report will address the remaining issues in the Northern South Island inquiry.

The Tribunal panel comprises Judge Wilson Isaac (presiding officer), Rangitihi Tahuparae, John Clarke, Professor Keith Sorrenson, and Pam Ringwood.

Their second preliminary report concerns the customary rights of Te Tau Ihu iwi in the area defined by Te Runanga o Ngai Tahu Act 1996 as the Ngai Tahu takiwa. The Tribunal found that the six Te Tau Ihu iwi that advanced claims with respect to the takiwa – Ngati Apa, Rangitane, Ngati Toa Rangatira, Ngati Rarua, Ngati Tama, and Te Atiawa – had valid customary rights in the takiwa, overlapping the acknowledged rights of Ngai Tahu.

On the east coast, the Tribunal found that Rangitane, Ngati Toa, and Ngai Tahu had legitimate overlapping customary rights in the area between Parinui-o-whiti and Waiau-toa. On the West Coast, the Tribunal found that Ngati Rarua, Ngati Tama, Te Atiawa, Ngati Toa, Ngati Apa, and Ngai Tahu had legitimate overlapping customary rights between Kawatiri and Kahurangi. The rights varied, depending on the iwi, but none of the rights had been extinguished prior to Crown purchasing from 1847.

The Tribunal found that the rights of all these iwi were protected and guaranteed by the Treaty. Notwithstanding this, the Crown extinguished the vast majority of these interests in a series of purchases between 1847 and 1860 without determining the correct right-holders or obtaining their full and free consent.

In 1847, the Tribunal found, the Government extorted the Wairau block from three chiefs in Wellington, thus disenfranchising all other Ngati Toa, Ngati Rarua, and Rangitane people. Then, in 1853, the Government arranged a cession of all Ngati Toa’s interests in the South Island by an unfair manipulation. From 1854 to 1856, it used this cession (the Waipounamu purchase) to obtain the interests of all the other Te Tau Ihu tribes without their free and full consent. These actions, the Tribunal concluded, were in plain breach of the Treaty and its principles.

The Tribunal found that Ngai Tahu’s interests in the northern part of the takiwa were also extinguished through a series of blanket purchases from 1848, concluding with the Kaikoura purchase (1859) on the east coast and the Arahura purchase (1860) on the west. In the Kaikoura transaction, the Crown neither inquired into nor considered Ngati Toa or Rangitane rights. Ngati Toa’s interests in the northern part of the takiwa had been inadequately acknowledged in the Wairau purchase and were not reconsidered in the Kaikoura transaction. The Crown had altogether failed either to inquire into or to consider Rangitane’s interests on this part of the coast and these interests were unfairly extinguished through the Kaikoura purchase, in breach of the Treaty and its principles.

On the West Coast, the Tribunal considered that the rights of Ngati Toa, Ngati Rarua, Ngati Tama, and Te Atiawa had been inadequately acknowledged in the Waipounamu purchase and were not reconsidered during the negotiations for Arahura. The Crown had never inquired into Ngati Apa’s customary rights and once more failed to do so in the Arahura transaction. Ngati Apa were only belatedly considered, and the Government made no inquiry into the extent of their interests. This limited and belated acknowledgement precluded Ngati Apa’s informed consent and was, in the opinion of the Tribunal, in breach of the Treaty and its principles.

The Tribunal further considered that these historical breaches against Te Tau Ihu iwi continued into the twentieth century when the Crown chose to deal exclusively with Ngai Tahu in the Ngai Tahu takiwa, at the expense of Te Tau Ihu iwi who also had legitimate rights in the area. On the basis of a Maori Appellate Court finding in 1990 that Ngai Tahu had sole rights of ownership in the Kaikoura and Arahura blocks at the time of the sale to the Crown, the Government has since dealt exclusively with Ngai Tahu.

The boundaries of the takiwa were statutorily defined in Te Runanga o Ngai Tahu Act 1996 and the Ngai Tahu Claims Settlement Act 1998.The Tribunal pointed out that there is nothing in this legislation that prevents the Government from considering Te Tau Ihu iwi interests within the takiwa. The legislation is not in itself in breach of the Treaty, rather the breach lies in the way in which the Government has interpreted it. Te Tau Ihu iwi interests were ignored during the negotiation and settlement of the Ngai Tahu claim. The Tribunal concluded that the Crown had failed to consult adequately with Te Tau Ihu iwi during this process and assets that could potentially have been included in future settlement with Te Tau Ihu iwi were vested in the sole ownership of Ngai Tahu. This exclusive treatment had continued since the settlement, to the detriment of Te Tau Ihu iwi.

On 22 November 2008, the Waitangi Tribunal released its final report on the Treaty claims of iwi and hapu of Te Tau Ihu (northern South Island). The eight recognised iwi are Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa Rangatira, Te Atiawa, and Rangitane. The report had earlier been released as an incomplete pre-publication edition in order to help with the claimants in their settlement negotiations with the Crown.

The Tribunal inquiry panel comprised Maori land Court Deputy Chief Judge Wilson Isaac (presiding officer), Professor Keith Sorrenson, Pam Ringwood, and John Clarke. The late Rangitihi Tahuparae, a respected kaumatua of Whanganui, passed away on 2 October 2008 between the completion of the report and its publication.

In its report, the Tribunal found that many acts and omissions of the Crown breached the principles of the Treaty of Waitangi. In particular, the Tribunal concluded that ownership of all but a tiny fraction of land in the Te Tau Ihu district was lost to Maori without first gaining their free, informed, and meaningful consent to the alienations. Nor did the Crown ensure that fair prices were paid and sufficient lands retained by the iwi for their own requirements.

The Tribunal finds that, contrary to Treaty principles, the Crown granted lands at Nelson and Golden Bay to the New Zealand Company without first ensuring that all customary owners were fairly dealt with. It then proceeded with its own large-scale Wairau and Waipounamu purchases, making predetermined decisions as to ownership which ignored the rights of many Te Tau Ihu Maori or left them with little meaningful choice over the alienation of their lands.

As a result, by as early as 1860 Te Tau Ihu Maori had lost most of their original estate. Thereafter, the Crown failed to actively protect their interests in those lands which remained to them. It also failed to protect their just rights and interests in valued natural resources. Despite petitions from Maori and repeated reports from its own officials, the Crown failed to protect or provide for Maori interests and rights in their customary fisheries and other resources. The result of these failures was grinding poverty, social dislocation, and loss of culture.

The Tribunal found that the totality of Treaty breaches were serious and caused significant social, economic, cultural, and spiritual prejudice to all iwi of Te Tau Ihu. These breaches, the Tribunal considered, required large and culturally appropriate redress.

In an attempt to assist Te Tau Ihu Treaty settlements, the Tribunal made several recommendations for remedies. Having regard in particular to the relatively even spread in terms of social and economic prejudice across all eight Te Tau Ihu iwi, the Tribunal recommended that the total quantum of financial and commercial redress be divided equally between them.

The Tribunal also recommended that site-specific cultural redress should be discussed collectively with all groups involved in Te Tau Ihu Treaty negotiations and that the unique claim of Ngati Apa, whose customary interests within Te Tau Ihu were never extinguished by any kind of deed of cession, needed special recognition. The Tribunal found the Crown’s repeated failure to properly recognise and deal with the Kurahaupo iwi as the legitimate tangata whenua (alongside the northern tribes) of Te Tau Ihu to be a serious breach. It recommended that the Crown take steps to fully recognise and restore the mana of the Kurahaupo iwi.

The Tribunal recommended that the settlement of historical grievances relating to Wakatu Incorporation was most appropriately a matter to be concluded between the Crown and Te Tau Ihu iwi and that matters affecting the shareholders of Wakatu Incorporation since its establishment in 1977 should be resolved between the incorporation and the Crown. It recommended that the Crown enter into parallel negotiations with the Ngati Rarua Atiawa Iwi Trust, with a view to bringing the Whakarewa (Motueka) leases into line with the 1997 Maori reserved lands settlement.

The Tribunal’s report highlighted a number of shortcomings with respect to the current ‘offer-back’ regime under the Public Works Act 1981. It recommended amendments to the Te Ture Whenua Maori Act 1993 and the Public Works Act to address these issues.

The Tribunal also highlighted problems with resource and fishery management regimes and recommended changes and improvements to ensure that these regimes were more consistent with the Treaty. The Crown admitted that the Resource Management Act 1991 was not being implemented in a manner that provided fairly for Maori interests.

Finally, the Tribunal made recommendations with respect to the customary interests of Te Tau Ihu iwi within the statutorily defined Ngai Tahu takiwa. Te Tau Ihu iwi lost the ability to recover their interests in lands within the takiwa, which have been vested in Ngai Tahu as a result of earlier Crown settlement. The Tribunal strongly recommended that the Crown take urgent action to ensure that these breaches did not continue. It also recommended that the Crown negotiate with those Te Tau Ihu iwi identified in the report as having customary interests within the statutorily defined Ngai Tahu takiwa to agree on equitable compensation.

On 22 November 2008, the Waitangi Tribunal released its final report on the Treaty claims of iwi and hapu of Te Tau Ihu (northern South Island). The eight recognised iwi are Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa Rangatira, Te Atiawa, and Rangitane. The report had earlier been released as an incomplete pre-publication edition in order to help with the claimants in their settlement negotiations with the Crown.

The Tribunal inquiry panel comprised Maori land Court Deputy Chief Judge Wilson Isaac (presiding officer), Professor Keith Sorrenson, Pam Ringwood, and John Clarke. The late Rangitihi Tahuparae, a respected kaumatua of Whanganui, passed away on 2 October 2008 between the completion of the report and its publication.

In its report, the Tribunal found that many acts and omissions of the Crown breached the principles of the Treaty of Waitangi. In particular, the Tribunal concluded that ownership of all but a tiny fraction of land in the Te Tau Ihu district was lost to Maori without first gaining their free, informed, and meaningful consent to the alienations. Nor did the Crown ensure that fair prices were paid and sufficient lands retained by the iwi for their own requirements.

The Tribunal finds that, contrary to Treaty principles, the Crown granted lands at Nelson and Golden Bay to the New Zealand Company without first ensuring that all customary owners were fairly dealt with. It then proceeded with its own large-scale Wairau and Waipounamu purchases, making predetermined decisions as to ownership which ignored the rights of many Te Tau Ihu Maori or left them with little meaningful choice over the alienation of their lands.

As a result, by as early as 1860 Te Tau Ihu Maori had lost most of their original estate. Thereafter, the Crown failed to actively protect their interests in those lands which remained to them. It also failed to protect their just rights and interests in valued natural resources. Despite petitions from Maori and repeated reports from its own officials, the Crown failed to protect or provide for Maori interests and rights in their customary fisheries and other resources. The result of these failures was grinding poverty, social dislocation, and loss of culture.

The Tribunal found that the totality of Treaty breaches were serious and caused significant social, economic, cultural, and spiritual prejudice to all iwi of Te Tau Ihu. These breaches, the Tribunal considered, required large and culturally appropriate redress.

In an attempt to assist Te Tau Ihu Treaty settlements, the Tribunal made several recommendations for remedies. Having regard in particular to the relatively even spread in terms of social and economic prejudice across all eight Te Tau Ihu iwi, the Tribunal recommended that the total quantum of financial and commercial redress be divided equally between them.

The Tribunal also recommended that site-specific cultural redress should be discussed collectively with all groups involved in Te Tau Ihu Treaty negotiations and that the unique claim of Ngati Apa, whose customary interests within Te Tau Ihu were never extinguished by any kind of deed of cession, needed special recognition. The Tribunal found the Crown’s repeated failure to properly recognise and deal with the Kurahaupo iwi as the legitimate tangata whenua (alongside the northern tribes) of Te Tau Ihu to be a serious breach. It recommended that the Crown take steps to fully recognise and restore the mana of the Kurahaupo iwi.

The Tribunal recommended that the settlement of historical grievances relating to Wakatu Incorporation was most appropriately a matter to be concluded between the Crown and Te Tau Ihu iwi and that matters affecting the shareholders of Wakatu Incorporation since its establishment in 1977 should be resolved between the incorporation and the Crown. It recommended that the Crown enter into parallel negotiations with the Ngati Rarua Atiawa Iwi Trust, with a view to bringing the Whakarewa (Motueka) leases into line with the 1997 Maori reserved lands settlement.

The Tribunal’s report highlighted a number of shortcomings with respect to the current ‘offer-back’ regime under the Public Works Act 1981. It recommended amendments to the Te Ture Whenua Maori Act 1993 and the Public Works Act to address these issues.

The Tribunal also highlighted problems with resource and fishery management regimes and recommended changes and improvements to ensure that these regimes were more consistent with the Treaty. The Crown admitted that the Resource Management Act 1991 was not being implemented in a manner that provided fairly for Maori interests.

Finally, the Tribunal made recommendations with respect to the customary interests of Te Tau Ihu iwi within the statutorily defined Ngai Tahu takiwa. Te Tau Ihu iwi lost the ability to recover their interests in lands within the takiwa, which have been vested in Ngai Tahu as a result of earlier Crown settlement. The Tribunal strongly recommended that the Crown take urgent action to ensure that these breaches did not continue. It also recommended that the Crown negotiate with those Te Tau Ihu iwi identified in the report as having customary interests within the statutorily defined Ngai Tahu takiwa to agree on equitable compensation.

This preliminary report concerns claims about the northern South Island.