Rapua ngā tuhinga ruku tātari

In 1992, Hariata Gordon lodged a claim on behalf of herself and Ngati Paoa which concerned the appointment of members to the Treaty of Waitangi Fisheries Commission under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. The claim alleged that Ngati Paoa, and others that joined the claim, were prejudicially affected by the consultation proposals in the 1992 Act and by a proposed policy of the Minister of Māori Affairs not to consult collectively at a hui, and that the Act and the policy were to that extent inconsistent with the Treaty of Waitangi.

The Tribunal, comprised of Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, and Mary Boyd, recommended that a hui be called, and considered it within the competence of the Ministry of Māori Development for it to call one. They recommended that the hui be directed first to the criteria for appointment and then to the selection of possible candidates.

The Te Maunga Railways Land Report of August 1994 concerned the use of the Public Works Act 1928. The claim, lodged by Michelle Henare and others, was granted urgency because the land involved at Te Maunga, in the Tauranga district, was the subject of a Māori Land Court order. That order revested the land in its former Māori owners, but with the condition that a payment of $70,000, plus GST, be made before it was returned. The claimants sought relief from this condition. Ms Henare put it this way:

I only want to express our concern about these things that have happened to us over a long time. My dad would have liked to have seen us give it our best shot. We felt it unjust that land be taken, pass from us, by Railways. We felt it has always been ours. We should not have to pay the $70,000. It is not the monetary value. It is the cultural tie that we do not want to lose. … My personal view is that the land will always be ours. They may use it as and when. It does not cease to be ours because the Crown has used it.

The land had been taken in 1955 for railways purposes under the Public Works Act 1928 and used for housing employees of the New Zealand Railways Corporation. The Tribunal found no evidence that ‘this transaction, a compulsory taking under the Public Works Act 1928, [could] be construed as a voluntary agreement to sell, on a willing seller basis’:

There was no attempt to explore alternative forms of tenure, such as a lease or licence to occupy, which would have preserved the parent title, and therefore their mana, and the rangatiratanga of the tangata whenua over their lands guaranteed to them in article 2 of the Treaty of Waitangi.

In 1985, the land was considered to be surplus to Railways Corporation requirements. At that time, the Public Works Act 1981 set out the procedures and conditions for disposing of Maori land that had been taken by the Crown for a public work but was no longer required that purpose. The land at Te Maunga was a small block, but the issues raised by the claim involved important principles of the Treaty of Waitangi: the Crown right to make laws and take land in the public interest (kawanatanga), against the guarantees of protection of Māori ownership of lands (rangatiratanga):

There was no concept of compulsory taking in customary Maori tenure systems. … the Crown guaranteed (ka wakarita ka wakaae) to Maori te tino rangatiratanga, the full authority over their lands until such time as they chose to dispose of them at an agreed price. There is in the Treaty, therefore, no assumption of a fictitious willing seller for the purpose of compulsory taking of Maori land by the Crown.

In reaching its conclusions, the Tribunal discussed the values assigned to land:

In the Maori world there are also values attributed to land and identity, ancestry and occupation, over many generations, which can never be translated into monetary terms. This is why Maori land, compulsorily acquired, is not seen by Maori as paid for, or adequately compensated, by a mere sum of money.

The Tribunal referred to the words of Justice Richardson in a 1987 court case, New Zealand Maori Council and Latimer v Attorney-General and Others, that the 'possession of land and the rights to land are not measured simply in terms of economic utility and immediately realisable commercial values'. It also quoted the words of the New Zealand Māori Council:

[Māori land] provides us with a sense of identity, belonging and continuity. It is proof of our continued existence not only as a people, but as the tangata whenua of this country. It is proof of our tribal and kin group ties. Maori land represents turangawaewae. It is proof of our link with the ancestors of our past, and with the generations yet to come. It is an assurance that we shall forever exist as a people, for as long as the land shall last.

The Tribunal of Judge Hingston, Pamela Ringwood, Evelyn Stokes and Makarini Temara concluded that this claim was well founded and recommended that the Crown take all necessary steps to ensure that the Te Maunga Railways land was revested in the former Māori owners without the payment of the $70,000 purchase price required by the Minister of Railways. They also made some more general recommendations for changes to public works legislation and the offer-back procedures to reflect more positively the Treaty principle of the Crown's fiduciary obligation toward Māori. In support, the Tribunal quoted a 1988 statement by the Minister of Lands, the Honourable Peter Tapsell, to the Māori Land Court:

Where the people were required to be divested of land, it is my view that if it is not essential for a Public Work it ought to be returned to them. It is, moreover, my view that the land ought to be returned to them unencumbered. That is it seems to me an injustice to say that we took your land eighty years ago and gave you fifty pounds, and now you can have your land back, provided you pay half a million dollars. That seems to be grossly unjust.

In late 1992, the Waitangi Tribunal inquired into several claims concerning a September 1992 settlement between the Crown and Maori on fisheries, commonly known as the Sealords deal. Hearings took place at the end of September and the beginning of October, and the Tribunal, which consisted of Chief Judge Eddie Durie (presiding), Bishop Bennett, Hugh Kawharu, and Joanne Morris, released its report in November.

The fisheries settlement had been hailed as historic. While it was not the only national settlement, it was the first to extinguish claims (the forestry and State Enterprise settlements being steps along the way) and the first to affect all iwi. It was significant too in that, previously, 'first in, first served' applied, while this settlement proposed the allocation of benefits according to a regular plan.

None the less, there were objections. The complaint in this claim was that the Deed of Settlement, or the Crown policy that it proposed, was contrary to the Treaty and prejudicial to the claimants in that it would diminish their rangatiratanga and fishing rights and impose new arrangements that had not been adequately agreed on.

The Court of Appeal, referring to apparently conflicting provisions in the deed, said:

This weakness in the Deed and other aspects of it which are criticised by the appellants could be in part accounted for by input into it from different hands. Certainly it is a most unusual document and, perhaps, even designedly, obscure in some major respects.

The Tribunal considered that the Crown had done well in seeking to provide for Māori interests in commercial fisheries, but that the spirit had become lost in the small print, leading to complaints from Māori:

Most especially it needs to be appreciated that any settlement of this nature has two essential goals, not just to pay off for the past, but also to buy into the future. The Treaty, it must be understood, is primarily concerned with the latter. It is not the extinguishment of rights that is essential but the affirmation of them. Somehow the Deed does not capture this, apart from the preamble, and Māori anxieties were understandable.

The Tribunal concluded that the Crown's Treaty obligations to hapu required any allocation of benefits to be based on principles that were fair. As the Deed stood, these obligations were likely to be compromised; both inconsistently with Treaty principles and in a manner prejudicial to some Māori. The Tribunal therefore recommended that:

that the allocation scheme should not be based on Treaty principles alone, but according to what is tika, or fair, in all the circumstances. This may include Treaty principles but need not be exclusive to them;[and]

that objections should not be referred to this Tribunal, as our jurisdiction is constrained, but should be sent to some court or especially established body that is able to consider all relevant matters.

Despite its controversial aspects, the commercial sea-fisheries agreement was subsequently embodied in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Māori now own some 50 percent of New Zealand's commercial sea fisheries and, in return, have agreed to relinquish future Treaty claims in respect of commercial sea fisheries.

The Ngawha Geothermal Resource Report 1993 was the first Tribunal report concerned with a geothermal resource. The claim, by the trustees of the Parahirahi C1 Maori reservation and the hapu of Ngawha, was filed in response to a joint-venture application by the Bay of Islands Electric Power Board and the Taitokerau Maori Trust Board to use the Ngawha geothermal resource for electricity generation. The claimants feared such development may harm their taonga, the hot springs and pools at Ngawha.

The Springs, indeed the entire underground geothermal resource is a taonga to us. You have heard of its miraculous healing powers and I can confirm in my long experience as Kaitiaki of that taonga that everything that these Kaumatua have told you is the truth. I believe that its healing powers, God-given, are sourced deep within in our Mother Earth. Any interference in that spiritual source is a desecration of our taonga.

Kereama Rankin

Our ancestors [knew] that the heart of Ngawha is underground. They are channels of hot water flowing underground. They knew and believed that it was one taonga, underground and up on the surface of the ground. It has been said the hot pools represent the eye of the taonga. But its heart is in, is within the depths of Mother Earth. If we abuse the very heart the pain will affect the heart, the eyes. It is all one treasure.

Ngatihaua Witehiri

The two main components of the grievance were the acquisition by the Crown of the land and hot springs and the provisions of the Geothermal Act 1953 and the Resource Management Act 1991, which were claimed to be inconsistent with the rights of the claimants under the Treaty of Waitangi.

The Tribunal constituted to hear the claim comprised Professor Gordon Orr (presiding), Sir Hugh Kawharu, Joanne Morris, and William Taylor. The first hearing of the claim took place at Kotahitanga Marae, Kaikohe, in October 1992. The second hearing was held in December, and in January 1993 the Tribunal heard final submissions.

The Tribunal found that the claimants retained ownership and rangatiratanga over the Ngawha hot springs on the one acre vested in the trustees of the Parahirahi C1 Māori reservation. They were also entitled to the return of four acres vested in the Crown as a recreation reserve, since they were an integral part of the springs and were acquired in breach of article 2 of the Treaty of Waitangi.

After a full inquiry, there was no doubt in the Tribunal’s mind that the Ngawha springs had always been a highly valued taonga of the Ngapuhi people, and the Treaty guaranteed to Māori the Crown’s protection of their taonga. The Tribunal recommended that the Crown amend the Resource Management Act 1991 to provide that ‘all persons exercising functions and powers under it, in relation to management the use, development and protection of natural and physical resources, shall act in a manner that is consistent with the principles of the Treaty of Waitangi’.