Rapua ngā tuhinga ruku tātari

The Mangatū Remedies Report, released in June 2014, is the outcome of applications for remedies by four claimant groups from Tūranganui-a-Kiwa (Gisborne). These groups – the Mangatū Incorporation (Wai 1489), Te Aitanga a Māhaki and Affiliates (Wai 274 and Wai 283), Ngā Ariki Kaipūtahi (Wai 499, Wai 507, and Wai 874), and Te Whānau a Kai (Wai 892) – asked the Tribunal to use its potentially binding powers to require the Crown to return to them all or part of the Mangatū Crown forest licensed lands within the Tūranga inquiry district.

The Tribunal held its inquiry into the historical claims of Tūranga Māori between 2001 and 2002. In 2004, the Tribunal released Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims. The Tribunal found that all of the iwi and hapū groups who had appeared before it had been prejudicially affected by wide-ranging Treaty breaches deriving from Crown conduct and policies in the nineteenth and twentieth centuries. The Tribunal noted especially the substantial loss of life and land suffered by Tūranga Māori.

The Mangatū Incorporation filed an application for an urgent remedies inquiry on 31 July 2008, seeking return of 8,522 acres of land in the Mangatū 1 block purchased by the Crown in 1961 for afforestation purposes. The Incorporation sought an urgent inquiry because an Agreement in Principle was expected to be signed by the Crown and Tūranga Māori in August 2008, the result of settlement negotiations that had commenced shortly after the release of the Tribunal’s Tūranga report. That agreement proposed the return of the Mangatū Crown forest licensed lands to the wider hapū grouping as commercial redress, including the land purchased from the Incorporation in 1961. The Incorporation, however, considered that the 1961 land should be returned to the Incorporation owners, and asked the Tribunal to use its binding powers to do so.

The Tribunal initially declined the Incorporation’s application for an urgent hearing. However, the Incorporation sought judicial review of the Tribunal’s decision and, on 19 May 2011, the Supreme Court directed the Tribunal to hear the Mangatū Incorporation remedies application urgently. Following this, the three other applicants – who represent the claims of hapū and iwi involved in the original Tūranga district inquiry – also lodged applications for binding recommendations.

The panel members for the Mangatū remedies hearing were Judge Stephanie Milroy (presiding officer), Tim Castle, Wharehuia Milroy, and Dr Ann Parsonson. Two weeks of hearings were held in Gisborne in June and October 2012. Closing submissions of the parties were heard in November 2012 in Wellington.

The Tribunal found that all four applicants had well-founded claims that were deserving of redress. However, the Tribunal did not consider that binding recommendations were appropriate in the circumstances and so declined to make the recommendations sought. In particular, it could not be certain that binding recommendations would provide redress proportionate to the prejudice suffered by the claimants. As a result, the Tribunal was unable to make recommendations that would be fair and equitable between the four groups. The Tribunal was concerned that redress which seemed to favour one group over others would risk creating fresh grievances, and might undermine the chances of achieving a durable Treaty settlement of the claims.

The Tribunal strongly urged all the applicants to reunite and return to settlement negotiations with the Crown. The Tribunal reiterated its preference that redress for well-founded claims should be negotiated with the Crown. In the report, the Tribunal said: ‘Any compromises that are made, and all settlements require compromises, should be made by the hapū and iwi involved – they are the ones with the mana and rangatiratanga to make such agreements, not the Tribunal.’ It emphasised that negotiations allow all parties much more flexibility than binding recommendations to develop a satisfactory settlement package.

In the Mangatū Remedies Report 2021, released today (1 October 2021), the Waitangi Tribunal  makes an interim recommendation under section 8HB of the Treaty of Waitangi Act 1975 that the Crown return to Māori ownership the Mangatū Crown forest land in the Tūranganui a Kiwa district, together with monetary compensation.

During 2018 and 2019, the Tribunal heard remedies applications seeking such a recommendation from several claimant groups: Te Aitanga a Māhaki and the Mangatū Incorporation, Ngā Uri o Tamanui, and Te Whānau a Kai. Another group, Te Rangiwhakataetaea–Wi Haronga–Ngāti Matepu, participated in the remedies inquiry as an interested party. The Tribunal had previously inquired into the claims of Te Aitanga a Māhaki, Ngā Uri o Tamanui, and Te Whānau a Kai in the Tūranga district inquiry, reporting on them in the 2004 Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims. In that report, the Tribunal made findings on Crown Treaty breaches in the district, ranging from the attack on the defensive pā at Waerenga a Hika in 1865 to the Crown’s acquisition in 1961 of parts of the land now comprising the Mangatū Crown forest licensed land.

In this subsequent remedies inquiry, the Tribunal was required to decide whether to recommend the return of land as a remedy for the claimants’ well-founded claims that relate to the Mangatū Crown forest licensed land. If the Tribunal determined that the land should be returned to Māori, it would then have to decide how much and to which claimant groups. Under section 36 of the Crown Forest Assets Act 1989, and schedule 1 to that Act, the return of Crown forest licensed land to Māori ownership is also accompanied by monetary compensation. The value of the available compensation is tied to the value of the of the cutting rights for the Mangatū Crown forest, which were sold by the Crown in 1990. The Tribunal has a discretion to award between 5 and 100 per cent of the available compensation.

In the Mangatū Remedies Report 2021, the Tribunal determines that Te Aitanga a Māhaki and the Mangatū Incorporation, Ngā Uri o Tamanui, and Te Whānau a Kai have well-founded claims that relate to the Mangatū Crown forest land. The relevant claims address Crown Treaty breaches that led to the loss of the claimants’ tino rangatiratanga and mana whenua in that land. The claims concern both the specific circumstances in which the land was lost from Māori ownership, as well as the Crown’s wider actions that were specifically designed to destroy Māori autonomy and control over their lands in Tūranga.

As a remedy for the prejudice suffered by the claimants, the Tribunal determines that the whole of the Mangatū Crown forest licensed land should be returned to Te Aitanga a Māhaki, Ngā Uri o Tamanui, and Te Whānau a Kai. The claimants should receive the full financial compensation available under schedule 1 to the Crown Forests Assets Act. The Mangatū land should be returned to a collective trust to be established by the claimants, called the Mangatū Forest Collective Trust. The trust’s beneficiaries would be the legally recognised governance entities that Te Aitanga a Māhaki Trust, Ngā Uri o Tamanui, and Te Whānau a Kai established following the 2018 remedies hearings, and which were ratified by the claimant communities.

Following the release of this report, claimant parties and the Crown have a period of 90 days to begin to negotiate the settlement of their claims. If an alternative agreement is reached through these negotiations, the Tribunal will cancel or modify its interim recommendation as necessary. Otherwise, after the 90 days has passed, the Tribunal’s interim recommendation becomes binding on the Crown.

The Mangatū Remedies Inquiry panel comprises Judge Stephanie Milroy (presiding), Tim Castle, Dr Ann Parsonson, and Ahonuku Tom Roa. Hearings were held in Gisborne and Wellington between August 2018 and July 2019.