Rapua ngā tuhinga ruku tātari

In March 1987, John Paki lodged a claim with the Waitangi Tribunal concerning the Maori-owned Pouakani B9B block and adjoining Crown lands. Mr Paki brought the claim on behalf of himself and the other trustees and beneficial owners of the lands held by the Titiraupenga and Pouakani B9B Trusts. The claim came to be registered as Wai 33.

The Tribunal constituted to hear the claim comprised Judge Ross Russell (presiding), Emarina Manuel, Professor Evelyn Stokes, and Bill Wilson. Three hearings were held in 1989, in May, August, and October, and the report was released in February 1993.

The Tribunal found that the claim was well founded and recommended that the Crown refund the costs incurred by the claimants in researching the boundaries of the Pouakani B9B and other blocks and that it return 343 acres of land taken as payment for survey charges. It also recommended that the Pouakani B9B block become whenua rahui, or protected land.

Claim Wai 32 was received on 15 April 1987. It was lodged by Te Aho Welsh and others of Ngati Rangiteaorere and alleged that they had been prejudicially affected by the Crown’s granting of tribal land at Te Ngae to the Anglican Church. They claimed that the Crown should have returned the land to the tribe once it was no longer needed for a residential mission station.

The Tribunal constituted to hear the claim comprised Judge Heta Hingston (presiding), Sir Monita Delamere, and Professor Keith Sorrenson, and three hearings were held, one each in December 1989, July 1990, and August 1990.

The Tribunal subsequently released its report in December 1990. The Tribunal found that Ngati Rangiteaorere had been deprived of their land without adequate consultation or consent, in breach of article 2 of the Treaty of Waitangi, and recommended that compensation be paid to them for the time that they were denied the use of the land. Because the church wanted to return the land to the tribe, the Tribunal recommended that the Crown pass legislation to facilitate the release of the land from a trust it was subject to.

The narrative that follows will not lie comfortably on the conscience of this nation, just as the outstanding grievances of Ngai Tahu have for so long troubled that tribe and compelled them time and again to seek justice. The noble principle of justice, and close companion honour, are very much subject to question as this inquiry proceeds. Likewise, the other important equities of trust and good faith are called into account and as a result of their breach sadly give rise to well grounded iwi protestations about dishonour and injustice and their companions, high-handedness and arrogance.

The Waitangi Tribunal

The various reports dealing with the Ngāi Tahu claims constitute the Tribunal’s most exhaustive treatment of an inquiry. The three volumes of the Ngai Tahu Report 1991 total more than 1200 pages, and the Sea Fisheries and Ancillary Claims reports add another 400 pages each to the Tribunal’s coverage of the issues.

I hereby claim upon the principles of justice, truth, peace and goodwill for and on behalf of my peoples within the principles of the Treaty of Waitangi.

Rakiihia Tau

The Ngāi Tahu inquiry began with a claim, Wai 27, registered in August 1986. It was brought by Rakiihia Tau and the Ngāi Tahu Maori Trust Board, but as the Tribunal said, it was ‘really from and about Ngai Tahu, an amalgam formed from three main lines of descent which flowed together to make the modern tribe’. The inquiry was extensive: over a period of 3½ years, 23 hearings were conducted and the Tribunal received 900 submissions and heard from 262 witnesses and 25 corporate bodies.

The claim was presented in nine parts, known as the ‘Nine Tall Trees of Ngai Tahu’. Eight of these ‘trees’ represented the different areas of land purchased from Ngāi Tahu, whilst the ninth represented Ngāi Tahu’s mahinga kai, or food resources. A number of grievances attached to each of the nine tall trees, and these came to be known as the ‘branches of the Nine Tall Trees’. There were also a number of smaller claims, which came to be described as the ‘undergrowth’, or ancillary, claims.

The Tribunal constituted to hear the claims comprised Deputy Chief Judge Ashley McHugh (presiding), Bishop Manuhuia Bennett, Sir Monita Delamere, Professor Sir Hugh Kawharu, Professor Gordon Orr, Sir Desmond Sullivan, and Georgina Te Heuheu, though Sir Monita died in 1993, before the last of the reports was released. The Ngai Tahu Report came out in 1991, the Ngai Tahu Sea Fisheries Report in August 1992, and the Ngai Tahu Ancillary Claims Report in May 1995.

This claim is not primarily about the inadequacy of price that Ngai Tahu was paid, although as we will see in respect of the North Canterbury, Kaikoura and Arahura purchases, the claimants strongly criticised the arbitrary imposition and unfavourable terms of the purchase price. Ngai Tahu have certainly a sense of grievance about the paucity of payment they received for their land but then Ngai Tahu have always regarded the purchase price not as a properly assessed market value consideration in the European concept but rather as a deposit; a token, a gratuity. Ngai Tahu understanding and the substance of their expectations was that they agreed to share their resources with the settler. Each would learn from the other. There was an expectation that Ngai Tahu would participate in and enjoy the benefits that would flow from the settlement of their land. As part of that expectation they wished to retain sufficient land to protect their food resources. They expected to be provided with, or to have excluded from the sale, adequate endowments that would enable them to engage in the new developing pastoral and commercial economy.

This claim and this story is about that expectation. Ngai Tahu grievances therefore are directed at the Crown’s failure to keep its promises, its failure to provide the reserves, the food resources and the health, educational and land endowments that were needed to give Ngai Tahu a stake in the new economy. This claim is also about Ngai Tahu’s comprehension of those areas of land they considered they did not sell to the Crown despite what the written agreements might have said. And of course, this claim is about Ngai Tahu expectations of their rights under the Treaty of Waitangi and how those rights were disregarded by the Crown in its dealings with the tribe.

The Waitangi Tribunal

In the Ngai Tahu Report, the Tribunal concluded that many of the grievances arising from the Crown’s South Island purchases, including those relating to mahinga kai, were established, and the Crown itself conceded that it had failed to ensure that Ngāi Tahu were left with ample lands for their needs. The Tribunal found that, in acquiring more than half the land mass of New Zealand from the tribe for £14,750, which left Ngai Tahu only 35,757 acres, the Crown had acted unconscionably and in repeated breach of the Treaty, and its subsequent efforts to make good the loss were found to be ‘few, extremely dilatory, and largely ineffectual’. After the Ngai Tahu Report was released, the Tribunal also put out a short supplementary report in which it referred to the need for tribal structures to be put in place to allow Ngāi Tahu to conduct remedies negotiations with the Crown. The Tribunal supported the proposals regarding representation that the claimants had made and it recommended that the Ministry of Māori Affairs introduce legislation constituting the Ngāi Tahu Iwi Authority as the appropriate legal personality to act on behalf of the iwi in those negotiations.

The Sea Fisheries Report dealt with the issue of Ngāi Tahu’s fisheries, and reported that, as a direct consequence of the loss of their land, Ngāi Tahu were ‘unable to continue their thriving and expanding business and activity of sea fishing’. The Tribunal found that, in legislating to protect and conserve fisheries resources, the Crown had failed to recognise Ngāi Tahu’s rangatiratanga over their fisheries and in particular their tribal rights of self-regulation or self-management of their resource. It also found that the quota management system then in place was in fundamental conflict with the terms of the Treaty and with Treaty principles. The Tribunal recommended that the Crown and Ngāi Tahu negotiate a settlement of the sea fisheries claim, that an appropriate additional percentage of fishing quota be allocated to Ngāi Tahu and that Waihora (Lake Ellesmere) be returned to them as an eel fishery, and that the Fisheries Act 1983 be amended to allow for ‘mahinga kaimoana’, or specific marine areas set aside for iwi.

The Ancillary Claims report dealt with 100 of the ‘undergrowth’ claims and showed how the 35,757 acres that Ngāi Tahu had been left with were further eroded by public works and other acquisitions. Of the 100 claims, 41 were found to involve breaches of the Treaty, and as a result, the Tribunal recommended that the Public Works Act 1981 be amended and proposed changes to the way that the Crown acquired land from Māori for public purposes.

The narrative that follows will not lie comfortably on the conscience of this nation, just as the outstanding grievances of Ngai Tahu have for so long troubled that tribe and compelled them time and again to seek justice. The noble principle of justice, and close companion honour, are very much subject to question as this inquiry proceeds. Likewise, the other important equities of trust and good faith are called into account and as a result of their breach sadly give rise to well grounded iwi protestations about dishonour and injustice and their companions, high-handedness and arrogance.

The Waitangi Tribunal

The various reports dealing with the Ngāi Tahu claims constitute the Tribunal’s most exhaustive treatment of an inquiry. The three volumes of the Ngai Tahu Report 1991 total more than 1200 pages, and the Sea Fisheries and Ancillary Claims reports add another 400 pages each to the Tribunal’s coverage of the issues.

I hereby claim upon the principles of justice, truth, peace and goodwill for and on behalf of my peoples within the principles of the Treaty of Waitangi.

Rakiihia Tau

The Ngāi Tahu inquiry began with a claim, Wai 27, registered in August 1986. It was brought by Rakiihia Tau and the Ngāi Tahu Maori Trust Board, but as the Tribunal said, it was ‘really from and about Ngai Tahu, an amalgam formed from three main lines of descent which flowed together to make the modern tribe’. The inquiry was extensive: over a period of 3½ years, 23 hearings were conducted and the Tribunal received 900 submissions and heard from 262 witnesses and 25 corporate bodies.

The claim was presented in nine parts, known as the ‘Nine Tall Trees of Ngai Tahu’. Eight of these ‘trees’ represented the different areas of land purchased from Ngāi Tahu, whilst the ninth represented Ngāi Tahu’s mahinga kai, or food resources. A number of grievances attached to each of the nine tall trees, and these came to be known as the ‘branches of the Nine Tall Trees’. There were also a number of smaller claims, which came to be described as the ‘undergrowth’, or ancillary, claims.

The Tribunal constituted to hear the claims comprised Deputy Chief Judge Ashley McHugh (presiding), Bishop Manuhuia Bennett, Sir Monita Delamere, Professor Sir Hugh Kawharu, Professor Gordon Orr, Sir Desmond Sullivan, and Georgina Te Heuheu, though Sir Monita died in 1993, before the last of the reports was released. The Ngai Tahu Report came out in 1991, the Ngai Tahu Sea Fisheries Report in August 1992, and the Ngai Tahu Ancillary Claims Report in May 1995.

This claim is not primarily about the inadequacy of price that Ngai Tahu was paid, although as we will see in respect of the North Canterbury, Kaikoura and Arahura purchases, the claimants strongly criticised the arbitrary imposition and unfavourable terms of the purchase price. Ngai Tahu have certainly a sense of grievance about the paucity of payment they received for their land but then Ngai Tahu have always regarded the purchase price not as a properly assessed market value consideration in the European concept but rather as a deposit; a token, a gratuity. Ngai Tahu understanding and the substance of their expectations was that they agreed to share their resources with the settler. Each would learn from the other. There was an expectation that Ngai Tahu would participate in and enjoy the benefits that would flow from the settlement of their land. As part of that expectation they wished to retain sufficient land to protect their food resources. They expected to be provided with, or to have excluded from the sale, adequate endowments that would enable them to engage in the new developing pastoral and commercial economy.

This claim and this story is about that expectation. Ngai Tahu grievances therefore are directed at the Crown’s failure to keep its promises, its failure to provide the reserves, the food resources and the health, educational and land endowments that were needed to give Ngai Tahu a stake in the new economy. This claim is also about Ngai Tahu’s comprehension of those areas of land they considered they did not sell to the Crown despite what the written agreements might have said. And of course, this claim is about Ngai Tahu expectations of their rights under the Treaty of Waitangi and how those rights were disregarded by the Crown in its dealings with the tribe.

The Waitangi Tribunal

In the Ngai Tahu Report, the Tribunal concluded that many of the grievances arising from the Crown’s South Island purchases, including those relating to mahinga kai, were established, and the Crown itself conceded that it had failed to ensure that Ngāi Tahu were left with ample lands for their needs. The Tribunal found that, in acquiring more than half the land mass of New Zealand from the tribe for £14,750, which left Ngai Tahu only 35,757 acres, the Crown had acted unconscionably and in repeated breach of the Treaty, and its subsequent efforts to make good the loss were found to be ‘few, extremely dilatory, and largely ineffectual’. After the Ngai Tahu Report was released, the Tribunal also put out a short supplementary report in which it referred to the need for tribal structures to be put in place to allow Ngāi Tahu to conduct remedies negotiations with the Crown. The Tribunal supported the proposals regarding representation that the claimants had made and it recommended that the Ministry of Māori Affairs introduce legislation constituting the Ngāi Tahu Iwi Authority as the appropriate legal personality to act on behalf of the iwi in those negotiations.

The Sea Fisheries Report dealt with the issue of Ngāi Tahu’s fisheries, and reported that, as a direct consequence of the loss of their land, Ngāi Tahu were ‘unable to continue their thriving and expanding business and activity of sea fishing’. The Tribunal found that, in legislating to protect and conserve fisheries resources, the Crown had failed to recognise Ngāi Tahu’s rangatiratanga over their fisheries and in particular their tribal rights of self-regulation or self-management of their resource. It also found that the quota management system then in place was in fundamental conflict with the terms of the Treaty and with Treaty principles. The Tribunal recommended that the Crown and Ngāi Tahu negotiate a settlement of the sea fisheries claim, that an appropriate additional percentage of fishing quota be allocated to Ngāi Tahu and that Waihora (Lake Ellesmere) be returned to them as an eel fishery, and that the Fisheries Act 1983 be amended to allow for ‘mahinga kaimoana’, or specific marine areas set aside for iwi.

The Ancillary Claims report dealt with 100 of the ‘undergrowth’ claims and showed how the 35,757 acres that Ngāi Tahu had been left with were further eroded by public works and other acquisitions. Of the 100 claims, 41 were found to involve breaches of the Treaty, and as a result, the Tribunal recommended that the Public Works Act 1981 be amended and proposed changes to the way that the Crown acquired land from Māori for public purposes.