Rapua ngā tuhinga ruku tātari

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The 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.