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.

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.