Rapua ngā tuhinga ruku tātari

In January 1990, the Waitangi Tribunal registered claim Wai 84, concerning the construction of the Turangi township. The town, which was built in the 1960s to house several thousand construction workers and related service people employed on the Tongariro power development scheme, was situated on ancestral land of the Ngāti Turangitukua hapū of Ngāti Tūwharetoa. The claim was made by Mahlon Nepia on behalf of himself and Arthur Grace of Ngāti Turangitukua and sought the return of certain properties in the township.

The Tribunal constituted to hear the claim comprised Professor Gordon Orr (presiding), Sir Hugh Kawharu, Professor Evelyn Stokes, and Hepora Young. In August 1993, the Tribunal granted urgency to the claim on the ground that the Crown was selling land within the claim area over the objections of claimants and that sacred sites were involved. The claim was heard in April, September, and October of 1994.

The Tribunal heard evidence from both Crown and claimants on the process by which the hapū were alienated from much of their land in the period between 1964 and 1983; the assurances and undertakings made to Ngāti Tūwharetoa by Crown officials which persuaded the owners to agree in principle with the proposal to build the town within their rohe; and the Crown's alleged failure to honour many of these promises.

As well, many people recounted their personal experiences. Bill Asher spoke of what had been taken from Ngāti Turangitukua:

We certainly have gained much in the way of facilities. But we have lost much too. When I was young, I didn't think about the implications of the coming of the township to our wahi tapu. We younger people regarded those as the responsibility of our kaumatua. We left all that to them. But once the project got underway, the role of those kaumatua diminished, and they weren't consulted about the effect of the works on the wahi tapu. As a result, many of those places have passed from us, and we are emotionally, spiritually, and culturally poorer as a result.

Tuatea Smallman summed up the effects of the hydro development on his family:

By severing the lands from the Maori title, the Ministry of Works has alienated the owners, our grandmother and her children, from the land. Younger members of the whanau have been denied their land. Loss of land to us means a loss of dignity, pride, and a distancing of whanau members through alienation to a feeling of mokaitanga [dependency, like being slaves]. We have lost our values, and our esteem, and a rift between families has developed. We fear our children will leave their turangawaewae.

The Tribunal heard much moving evidence about the effect of the township's construction upon the small rural community:

The desecration of our precious wahi tapu caused our people, and particularly our old people, great distress. In all the confusion and enormous changes that were happening in Turangi, we often didn't find out until too late that more was being done in sacred areas. And the Ministry of Works didn't want us to find out. …
Those places are like important signposts to our history and mana. Many of the signposts have disappeared without trace. Other signposts are so changed as to be unreadable. We will never have the same access to our past as a result. …
When the Ministry of Works came to our area, we had kaumatua here who had great authority and many responsibilities. After the Ministry of Works took over, these people were reduced in status almost overnight because they no longer had any authority over what happened in our rohe. There was nothing they could say or do which would make the government people listen. This was very hard for those old people to accept and it affected them very badly.
—Arthur Grace

I was told by Arthur Grace that my grandfather was still in the house when they came to bulldoze it down. I don't know why they had to bulldoze that house. It was only 21 years old. My grandfather was watching what was happening, standing there on the road with my little sister Josephine, another whangai who lived with my grandfather. He was crying and his suitcase was there beside him. Arthur went and spoke to the men with the bulldozer but they didn't listen and they drove a bulldozer into the back of the house right in front of my grandfather. They didn't even wait until he had left before knocking the house down. So Arthur picked up Josephine and my grandfather and took them away in the truck. All our turkeys and pigs and dogs and cats were let loose running around. We had about 30 turkeys then. They were all just left to run away. My grandfather was taken to the [Ngāti Hine] marae to live, because there was nowhere else for him to go. He was moved from family to family, but he used to lock himself up in his room all the time. It was only a few months later that he died.
—Taima Bell

At about the same time, one of our whanaunga [relatives] Mr Tewe Eru, who was also an old man, refused to leave the house that Ministry of Works wanted to take from him. The house was bulldozed before his eyes, and all his belongings were left on the road. All of the local people knew this and it terrified my mother. She thought that she would be the next one, that her house would be bulldozed and she would be left with nowhere to go.
It was at this stage that my mother took to her bed. …
My mother was not an old woman. She was only 62, and a woman of vitality. She had asthma, but she was not an invalid. It was the Ministry of Works that killed her. I hated the Ministry of Works for what they did to my mother. They seemed to have no feeling at all for how their actions were affecting the lives of our people.
—Dulcie Gardiner

The way the Ministry of Works went about doing what they did caused great agony to people and affected their lives very deeply. The damage to our old people's happiness and health can never be compensated for. What makes me particularly resentful is that I don't believe that there was any necessity for the Ministry of Works to take that land from the backs of people's houses, and the road taking and survey could have been located elsewhere to the many acres where no one lived. Another anomaly is that the rest of that area … was never used for the development of the township; it was just sold off.
—Hono Lord

The report was presented to the Minister of Maori Affairs and the claimants in September 1995. In it, the Tribunal found that, in regards to Turangi, the Treaty of Waitangi 'was all but ignored by the Crown in its dealings with Maori'. And, further, that, in fulfilling its wish to construct the Turangi township on the claimants' ancestral land, the Crown had the unqualified backing of 'draconian statutory powers' (ie, the Public Works Act 1928 and the Turangi Township Act 1964) to take the land:

These Acts gave the Crown the power to take the claimants' land compulsorily for the establishment of a permanent Turangi township. This could be done without any notice to the owners or any right of objection by them; without any obligation to consult the owners; without the owners' consent; without any obligation to return land not required for the purpose for which it was taken; at a price negotiated with a statutory official on behalf of multiple owners rather than with the owners themselves; and on conditions laid down by legislation and not freely negotiated. The Crown could insist on taking the freehold of the land, irrespective of the preference of the owners. In addition, the Crown asserted the right, which was of dubious legality, to enter the claimants' lands with its bulldozers, without notice to or the consent of the owners, well before any proclamation taking the land had been gazetted. Against these powers, the Maori owners had no defence. It is not possible to reconcile these far-reaching powers with the Crown's Treaty obligation actively to protect the rangatiratanga of Maori in and over their land.

The Tribunal recorded 13 breaches of Treaty principles by the Crown, most of which stemmed from the Crown's failure to actively protect the rangatiratanga of Ngāti Turangitukua over their ancestral land. The Tribunal wrote that:

At the heart of the claim lay the failure of the Crown to honour many of the undertakings and assurances it gave to the owners, which formed the basis of the approval in principle they gave to the construction of a township on their land. This failure effectively vitiated such approval.

As a result, the Crown took up to double the amount of land that it had undertaken to take and valuable industrial land was not returned after 10 to 12 years as promised. Compensation was inadequate; the economic base of the people was seriously eroded; irreplaceable wahi tapu have been destroyed or desecrated; waterways and fisheries are degraded and flooding has occurred; and the lack of adequate consultation with the tangata whenua and the failure to respect the mana of the people throughout the whole distressing experience has increased their level of alienation.

The Tribunal found that the claimants had been prejudicially affected by the provisions of the Public Works Act 1928 and the Turangi Township Act 1964, in that both Acts were fundamentally inconsistent with the basic guarantee given in article 2 of the Treaty of Waitangi that Maori could keep their land until such time as they wished to sell it at a price agreed with the Crown.

The Tribunal recommended that amendments be made to the sections of the Public Works Act 1981 dealing with the taking of Maori land by the Crown or a local authority and the offering back of surplus land, and it recommended that the Act should be amended so as to give effect to the principles of the Treaty of Waitangi.

In the interest of facilitating an early settlement of remedies, the Tribunal proposed that the claimants and Crown enter into direct negotiations but noted that, if the parties were unable to reach an agreement, the Tribunal would be amenable to hear the parties on the question of remedies and to make appropriate recommendations.

Ngāti Turangitukua and the Crown did enter into negotiations, which took place during 1995 and 1996, but by July 1996, they had come to a standstill. The claimants then returned to the Tribunal to ask for a hearing on remedies.

After hearing evidence and submissions from the claimants and Crown in February and July 1997, the Tribunal retired to consider the issue of remedies. The following year, in July, the Tribunal released the Turangi Township Remedies Report, in which, for the first time, the Tribunal exercised its power to make binding recommendations. These recommendations were that memorialised and Crown-owned non-memorialised land to the value of $6.1 million be returned to Ngāti Turangitukua by the Crown. The Tribunal further recommended that the Crown pay Ngāti Turangitukua monetary compensation of at least $1million and that it meet the costs incurred by the hapū in pursuing the claim.

The Crown and claimants had 90 days to reach an agreement before the binding recommendations became final. This, they did, and the Crown and Ngāti Turangitukua signed a deed of settlement at Turangi in September 1998. The deed, which contained a mix of fiscal and non-fiscal redress and a clear acknowledgement of the Crown's Treaty breaches, would 'help restore Ngāti Turangitukua's mana and rangatiratanga' said the Minister in Charge of Treaty of Waitangi Negotiations, the Honourable Doug Graham. The compensation package was valued at $5 million.

In January 1990, the Waitangi Tribunal registered claim Wai 84, concerning the construction of the Turangi township. The town, which was built in the 1960s to house several thousand construction workers and related service people employed on the Tongariro power development scheme, was situated on ancestral land of the Ngāti Turangitukua hapū of Ngāti Tūwharetoa. The claim was made by Mahlon Nepia on behalf of himself and Arthur Grace of Ngāti Turangitukua and sought the return of certain properties in the township.

The Tribunal constituted to hear the claim comprised Professor Gordon Orr (presiding), Sir Hugh Kawharu, Professor Evelyn Stokes, and Hepora Young. In August 1993, the Tribunal granted urgency to the claim on the ground that the Crown was selling land within the claim area over the objections of claimants and that sacred sites were involved. The claim was heard in April, September, and October of 1994.

The Tribunal heard evidence from both Crown and claimants on the process by which the hapū were alienated from much of their land in the period between 1964 and 1983; the assurances and undertakings made to Ngāti Tūwharetoa by Crown officials which persuaded the owners to agree in principle with the proposal to build the town within their rohe; and the Crown's alleged failure to honour many of these promises.

As well, many people recounted their personal experiences. Bill Asher spoke of what had been taken from Ngāti Turangitukua:

We certainly have gained much in the way of facilities. But we have lost much too. When I was young, I didn't think about the implications of the coming of the township to our wahi tapu. We younger people regarded those as the responsibility of our kaumatua. We left all that to them. But once the project got underway, the role of those kaumatua diminished, and they weren't consulted about the effect of the works on the wahi tapu. As a result, many of those places have passed from us, and we are emotionally, spiritually, and culturally poorer as a result.

Tuatea Smallman summed up the effects of the hydro development on his family:

By severing the lands from the Maori title, the Ministry of Works has alienated the owners, our grandmother and her children, from the land. Younger members of the whanau have been denied their land. Loss of land to us means a loss of dignity, pride, and a distancing of whanau members through alienation to a feeling of mokaitanga [dependency, like being slaves]. We have lost our values, and our esteem, and a rift between families has developed. We fear our children will leave their turangawaewae.

The Tribunal heard much moving evidence about the effect of the township's construction upon the small rural community:

The desecration of our precious wahi tapu caused our people, and particularly our old people, great distress. In all the confusion and enormous changes that were happening in Turangi, we often didn't find out until too late that more was being done in sacred areas. And the Ministry of Works didn't want us to find out. …
Those places are like important signposts to our history and mana. Many of the signposts have disappeared without trace. Other signposts are so changed as to be unreadable. We will never have the same access to our past as a result. …
When the Ministry of Works came to our area, we had kaumatua here who had great authority and many responsibilities. After the Ministry of Works took over, these people were reduced in status almost overnight because they no longer had any authority over what happened in our rohe. There was nothing they could say or do which would make the government people listen. This was very hard for those old people to accept and it affected them very badly.
—Arthur Grace

I was told by Arthur Grace that my grandfather was still in the house when they came to bulldoze it down. I don't know why they had to bulldoze that house. It was only 21 years old. My grandfather was watching what was happening, standing there on the road with my little sister Josephine, another whangai who lived with my grandfather. He was crying and his suitcase was there beside him. Arthur went and spoke to the men with the bulldozer but they didn't listen and they drove a bulldozer into the back of the house right in front of my grandfather. They didn't even wait until he had left before knocking the house down. So Arthur picked up Josephine and my grandfather and took them away in the truck. All our turkeys and pigs and dogs and cats were let loose running around. We had about 30 turkeys then. They were all just left to run away. My grandfather was taken to the [Ngāti Hine] marae to live, because there was nowhere else for him to go. He was moved from family to family, but he used to lock himself up in his room all the time. It was only a few months later that he died.
—Taima Bell

At about the same time, one of our whanaunga [relatives] Mr Tewe Eru, who was also an old man, refused to leave the house that Ministry of Works wanted to take from him. The house was bulldozed before his eyes, and all his belongings were left on the road. All of the local people knew this and it terrified my mother. She thought that she would be the next one, that her house would be bulldozed and she would be left with nowhere to go.
It was at this stage that my mother took to her bed. …
My mother was not an old woman. She was only 62, and a woman of vitality. She had asthma, but she was not an invalid. It was the Ministry of Works that killed her. I hated the Ministry of Works for what they did to my mother. They seemed to have no feeling at all for how their actions were affecting the lives of our people.
—Dulcie Gardiner

The way the Ministry of Works went about doing what they did caused great agony to people and affected their lives very deeply. The damage to our old people's happiness and health can never be compensated for. What makes me particularly resentful is that I don't believe that there was any necessity for the Ministry of Works to take that land from the backs of people's houses, and the road taking and survey could have been located elsewhere to the many acres where no one lived. Another anomaly is that the rest of that area … was never used for the development of the township; it was just sold off.
—Hono Lord

The report was presented to the Minister of Maori Affairs and the claimants in September 1995. In it, the Tribunal found that, in regards to Turangi, the Treaty of Waitangi 'was all but ignored by the Crown in its dealings with Maori'. And, further, that, in fulfilling its wish to construct the Turangi township on the claimants' ancestral land, the Crown had the unqualified backing of 'draconian statutory powers' (ie, the Public Works Act 1928 and the Turangi Township Act 1964) to take the land:

These Acts gave the Crown the power to take the claimants' land compulsorily for the establishment of a permanent Turangi township. This could be done without any notice to the owners or any right of objection by them; without any obligation to consult the owners; without the owners' consent; without any obligation to return land not required for the purpose for which it was taken; at a price negotiated with a statutory official on behalf of multiple owners rather than with the owners themselves; and on conditions laid down by legislation and not freely negotiated. The Crown could insist on taking the freehold of the land, irrespective of the preference of the owners. In addition, the Crown asserted the right, which was of dubious legality, to enter the claimants' lands with its bulldozers, without notice to or the consent of the owners, well before any proclamation taking the land had been gazetted. Against these powers, the Maori owners had no defence. It is not possible to reconcile these far-reaching powers with the Crown's Treaty obligation actively to protect the rangatiratanga of Maori in and over their land.

The Tribunal recorded 13 breaches of Treaty principles by the Crown, most of which stemmed from the Crown's failure to actively protect the rangatiratanga of Ngāti Turangitukua over their ancestral land. The Tribunal wrote that:

At the heart of the claim lay the failure of the Crown to honour many of the undertakings and assurances it gave to the owners, which formed the basis of the approval in principle they gave to the construction of a township on their land. This failure effectively vitiated such approval.

As a result, the Crown took up to double the amount of land that it had undertaken to take and valuable industrial land was not returned after 10 to 12 years as promised. Compensation was inadequate; the economic base of the people was seriously eroded; irreplaceable wahi tapu have been destroyed or desecrated; waterways and fisheries are degraded and flooding has occurred; and the lack of adequate consultation with the tangata whenua and the failure to respect the mana of the people throughout the whole distressing experience has increased their level of alienation.

The Tribunal found that the claimants had been prejudicially affected by the provisions of the Public Works Act 1928 and the Turangi Township Act 1964, in that both Acts were fundamentally inconsistent with the basic guarantee given in article 2 of the Treaty of Waitangi that Maori could keep their land until such time as they wished to sell it at a price agreed with the Crown.

The Tribunal recommended that amendments be made to the sections of the Public Works Act 1981 dealing with the taking of Maori land by the Crown or a local authority and the offering back of surplus land, and it recommended that the Act should be amended so as to give effect to the principles of the Treaty of Waitangi.

In the interest of facilitating an early settlement of remedies, the Tribunal proposed that the claimants and Crown enter into direct negotiations but noted that, if the parties were unable to reach an agreement, the Tribunal would be amenable to hear the parties on the question of remedies and to make appropriate recommendations.

Ngāti Turangitukua and the Crown did enter into negotiations, which took place during 1995 and 1996, but by July 1996, they had come to a standstill. The claimants then returned to the Tribunal to ask for a hearing on remedies.

After hearing evidence and submissions from the claimants and Crown in February and July 1997, the Tribunal retired to consider the issue of remedies. The following year, in July, the Tribunal released the Turangi Township Remedies Report, in which, for the first time, the Tribunal exercised its power to make binding recommendations. These recommendations were that memorialised and Crown-owned non-memorialised land to the value of $6.1 million be returned to Ngāti Turangitukua by the Crown. The Tribunal further recommended that the Crown pay Ngāti Turangitukua monetary compensation of at least $1million and that it meet the costs incurred by the hapū in pursuing the claim.

The Crown and claimants had 90 days to reach an agreement before the binding recommendations became final. This, they did, and the Crown and Ngāti Turangitukua signed a deed of settlement at Turangi in September 1998. The deed, which contained a mix of fiscal and non-fiscal redress and a clear acknowledgement of the Crown's Treaty breaches, would 'help restore Ngāti Turangitukua's mana and rangatiratanga' said the Minister in Charge of Treaty of Waitangi Negotiations, the Honourable Doug Graham. The compensation package was valued at $5 million.

In 1987, the Waitangi Tribunal received an application from a Mr P H E Bloomer, acting as agent for Matiu Love and James Mark, asking for an inquiry into ‘whether or not the Waikawa block would be returned to Maori descendants of original owners’. The claim was brought because the claimants feared that the land was about to be transferred to the new Land Corporation, a State-owned enterprise established under the State-owned Enterprises Act 1986.

In July 1987, Mr Bloomer wrote to the Tribunal indicating that he had received a letter from the Prime Minister stating that the Waikawa block would be retained by the Crown and that normal procedures as to lands no longer required by the Crown would be instituted.

Subsequently, Mr Bloomer formally withdrew the claim in June 1988 after the Honourable Peter Tapsell agreed in principle to arrange for the return of the land to Matiu Love and his associated relatives. The Tribunal’s report on the matter, signed by Deputy Chief Judge Ashley McHugh, was issued on 27 June 1989.

The owners of Oriwa 1B3 - a block of Maori freehold land - lodged a claim with the Tribunal objecting to a district scheme designation which proposed that the land be a public reserve. Following inquiries by Tribunal research staff and the commissioning and release of an exploratory research report on the matter, the Tribunal was formally advised that the Department of Conservation wanted the public reserve designation to be lifted. as a result, no recommendations needed to be made.

   ‘With hindsight, the Moriori claim deserved an early hearing in the Tribunal’s process, for it raised issues at the frontier of our modern government. A just conclusion to recent warfare was an issue squarely before Maori and the Governor when the Treaty of Waitangi was signed, and the issue shed light on a major purpose of the Treaty: to ensure justice for all people.’

    Justice Durie

The raft of issues considered in the Rekohu Report are unique and complex, and a thorough reading of the entire report is necessary to gain a full understanding of the context of the claims and the ensuing recommendations of the Tribunal.

The report looks closely at the period soon after the signing of the Treaty of Waitangi in 1840 and the annexation of Rekohu in 1842. Some of the main findings of the Tribunal’s report are that:

The Native Land Court adopted criteria set by the Crown that were inadequate in Treaty terms when it excluded Moriori from ownership of any but the main island, and in that case awarding 97 per cent of the land to Ngati Mutunga and only 3 per cent to Moriori. The Tribunal considered the awards were patently wrong and that Moriori were entitled to at least 50 per cent.

The ancestral right to land was with Moriori. Maori were recent invaders.

The Tribunal did not accept the Crown’s argument that Maori agreed to land tenure reform proposing individual ownership, individual share trading, or Native Land Court control of title devolution and succession.

The Tribunal recommended that compensation is due to Ngati Mutunga for the lasting impact of the Crown’s policy on tenure reform.

The Tribunal has proposed a new indigenous land law for Rekohu which would be the modern equivalent for the customary ethic with land titles held in trust by a runanga (formed along traditional lines) which allocated long-term occupation rights. The Runanga would provide facilities for visiting relatives out of the rents among other things. The Tribunal recommends that the Crown fund a body to promote the development of a new Maori land law specific to the Chathams.

The issue of slavery as a result of the invasion of Rekohu by Ngati Tama and Ngati Mutunga in 1835 was an issue ended in the mainland of New Zealand by 1839. This was not so in Rekohu where it continued for 20 years after annexation without Crown intervention. The Tribunal found that the failure of the Crown to intervene cost Moriori many lives, and prejudiced later land claims

The Tribunal in the Chatham Islands inquiry was also asked to look at a number of contemporary issues including the Tribunal's jurisdiction, the status of Moriori and their right to make claims under the Treaty of Waitangi, health and education, conservation management, fishing, and the ownership of Te Whaanga lagoon.

    ‘The scientific evidence is compelling: Moriori are the same people as Maori but, through isolation, they are unique as a Maori tribe.’

    Waitangi Tribunal