Rapua ngā tuhinga ruku tātari

On Tuesday 30 June 2020, the Waitangi Tribunal released The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry: Stage 1 Report in pre-publication format.

The inquiry was accorded high priority, reflecting the importance of the customary rights at stake and the immediacy of the Marine and Coastal Area (Takutai Moana) Act's alleged impacts on Māori.

The Act replaced its controversial predecessor, the Foreshore and Seabed Act 2004. Under the Marine and Coastal Area (Takutai Moana) Act, Māori can obtain legal rights recognising their customary interests in the form of either customary marine title or protected customary rights. Two application pathways are provided: Māori can either engage directly with the Crown or apply to the High Court for a recognition order. They can also choose to do both. In either pathway, applications for customary rights had to be filed by the statutory deadline of 3 April 2017.

The Tribunal’s report concludes stage 1 of a two-part inquiry. The first stage has considered whether the procedural and resourcing arrangements put in place by the Crown to support the Act are Treaty-compliant and prejudicially affect Māori. The Tribunal received 92 claims for the inquiry, and a further 75 parties were granted interested party status. Hearings were held from 25 March 2019 to 2 August 2019 before an inquiry panel comprising Judge Miharo Armstrong (presiding), Ron Crosby, Dr Hauata Palmer, and Professor Rawinia Higgins. Stage 2 of the inquiry will examine whether the broader statutory and policy issues relating to the Act itself breach Treaty principles and prejudice Māori.

In its report, the Tribunal found that the Crown did act reasonably, in good faith, and consistently with its Treaty obligations in implementing some aspects of the Act’s supporting regime. The Tribunal was also encouraged to hear that the Crown would be conducting a comprehensive review of the funding regime, with input from applicants.

Notwithstanding these positive signs however, the Tribunal found that many aspects of the Act’s supporting procedural and resourcing arrangements fell well short of Treaty-compliance and cause Māori significant and ongoing prejudice.

The Tribunal therefore recommended that the Act’s procedural and resourcing arrangements be amended to give effect to Treaty principles. Further recommendations included,urgently addressing a policy vacuum that continued to impede both the operation of the Crown engagement pathway itself and the cohesion of the two pathways and addressing funding arrangements for claimants.

The report concludes by noting that Māori would continue to be prejudiced until the Crown took steps to make the Act’s supporting procedural and resourcing arrangements fairer, clearer, more cohesive, and consistent with the Crown’s obligations as a Treaty partner.

The Report on the Crown’s Review of the Plant Variety Rights Regime, released in May 2020, is the Tribunal’s stage 2 report for the Trans-Pacific Partnership Agreement inquiry (Wai 2522).

The original claims for this inquiry were lodged in June 2015 by Dr Papaarangi Reid, Moana Jackson, Angeline Greensill, Hone Harawira, Rikirangi Gage, and Moana Maniapoto. Negotiations for the Trans-Pacific Partnership Agreement (TPPA) were underway when the claims were lodged.

The Tribunal decided to hear the claims in stages, and the stage 1 report, the Report on the Trans-Pacific Partnership Agreement, was released on 5 May 2016.

For stage 2, the Tribunal considered whether the Crown’s process for engagement over the plant variety rights regime and its policy on whether or not New Zealand should accede to the Act of 1991 International Union for the Protection of New Varieties of Plants were consistent with its Tiriti/Treaty obligations to Maori. The panel comprised Judge Michael Doogan (presiding), David Cochrane, Tā Hirini Moko Mead, Kim Ngarimu, and Tania Simpson, and the hearings took place from 4 to 6 December 2019.

The claimants said that the Crown’s process for engagement over the plant variety rights regime, and its policy on how to address UPOV 1991, were not consistent with its Tiriti/Treaty obligations of partnership and protection. The Crown argued that its engagement process, consistent with its CPTPPA obligations, was Tiriti/Treaty compliant. The Crown further argued that the outcomes of the review met, and exceeded, the relief originally sought by the claimants in this inquiry and that it has implemented the relevant Tribunal guidance as to what is necessary to meet its Tiriti/Treaty obligations.

The Tribunal found that the claims of Tiriti/Treaty breach in relation to these issues were not made out, and it supported certain aspects of the Crown’s policy. The Tribunal welcomed Cabinet’s decision to not only implement the relevant findings and recommendations of the Tribunal’s 2011 Ko Aotearoa Tēnei report but go further and provide additional measures to recognise and protect the interests of kaitiaki in taonga species and in non-indigenous species of significance.

The Maniapoto Mandate Inquiry Report was originally released in pre-publication form on 11 December 2019. It was the outcome of 10 claims made on behalf of individuals, whānau, hapū and hapū collectives. The central issue in this inquiry was whether the Crown breached the Treaty of Waitangi in recognising the Maniapoto Māori Trust Board’s mandate to negotiate the Ngāti Maniapoto settlement of historic Treaty claims with the Crown.

The hearings, held under urgency, took place in Hamilton in July 2019 with closing submissions heard in September 2019. The panel appointed to hear the claims was comprised of Judge Sarah Reeves (presiding officer), Professor Pou Temara and Dr Aroha Harris.

In December 2016, the Crown officially recognised the Maniapoto Māori Trust Board as having secured a mandate from the people of Ngāti Maniapoto to enter settlement negotiations on their behalf. The claimants alleged that the Crown’s actions, in particular the implementation of the ‘Broadening the Reach’ strategy and insufficient opportunities to voice opposition, prevented the claimants from asserting their tino rangatiratanga.

Another central theme of opposition to the Maniapoto Māori Trust Board’s mandate was that its deed of mandate did not make appropriate accommodation for hapū rangatiratanga, in contrast to the structure and approach of the entity originally established to seek the mandate, Te Kawau Mārō. Furthermore, some claimants took specific issue with either the absence or inclusion of their whānau, hapū and Te Rohe Pōtae historical claims in the claimant definition set out in the deed of mandate.

In the report, the Tribunal’s overall finding was that the Crown’s recognition of the Maniapoto Māori Trust Board’s mandate was reasonable given the Trust Board’s level of support, infrastructure and extensive involvement in previous settlements. It was also reasonable given that, prior to September 2016, the Crown had conducted lengthy discussions in good faith with Te Kawau Mārō.

However, the Tribunal found that aspects of the process to recognise the Maniapoto Māori Trust Board’s mandate were not fair nor undertaken in good faith. In particular, the Crown’s implementation of ‘Broadening the Reach’ and its fluctuating position concerning the inclusion of Ngāti Apakura in the deed of mandate breached the principles of partnership, reciprocity and equal treatment. The Tribunal concluded that ‘Broadening the Reach’ in particular prioritised the Crown’s political objectives to complete settlements within a shorter timeframe over its Treaty relationship with Ngāti Maniapoto.

The Tribunal also found that the Maniapoto Māori Trust Board deed of mandate was largely adequate for the purpose of negotiations, provided that the Crown made some amendments to the claimant definition and withdrawal mechanism.

The Tribunal did not recommend a halt to negotiations. Instead it recommended that the Crown provide distinct recognition in the deed of mandate for certain hapū, give serious thought to post-settlement governance entity options to manage and distribute the Ngāti Maniapoto settlement, adjust the resourcing and quantum for the settlement to account for the re-inclusion of Ngāti Apakura, amend the remedies clauses in the deed of mandate, and actively have regard to its whanaungatanga obligations to Ngāti Maniapoto Māori in the Treaty settlement process.

The Hauraki Settlement Overlapping Claims Inquiry Report was originally released in pre-publication form in December 2019. It made findings on four claims. The main issue for the inquiry was whether the Crown breached the Treaty of Waitangi through the overlapping claims policies, processes and practices it adopted when negotiating collective and individual settlement deeds with Hauraki iwi. A related but distinct issue was whether one Hauraki iwi, Ngāti Porou ki Hauraki, were themselves prejudiced by the Hauraki negotiation process. 
 
The hearings, held under urgency, took place in April 2019. The panel appointed to hear the claims consisted of Judge Miharo Armstrong (presiding officer), Professor Rawinia Higgins, Dr Ruakere Hond, and David Cochrane. 
 
The Pare Hauraki Collective Redress Deed, which awards shared redress for the collective interests of the 12 iwi of Hauraki, was signed in August 2018. Along with some individual Hauraki deeds, it contains redress that falls within rohe of Ngāi Te Rangi and Ngāti Ranginui (both Tauranga Moana iwi), and Ngātiwai (whose rohe extends from the Bay of Islands to Matakana in Mahurangi and includes several offshore islands). All three iwi alleged the Crown failed to undertake a proper process to resolve overlapping interests in the areas at issue, and as a result, wrongly allocated redress to Hauraki iwi.
 
The three iwi shared key grievances. One was that the Crown failed to properly consult and share information with them about redress it was proposing to Hauraki iwi. Another was that the Crown did not adequately support the use of a tikanga-based process to resolve redress disputes and to test claimed interests. Yet another was that redress the claimants had agreed to later appeared in initialled or signed deeds in an expanded or changed form. 
 
This last issue was key for Tauranga Moana iwi in particular, who objected to a provision in the collective deed allowing Hauraki iwi to participate in the Tauranga Moana Framework – an innovative co-governance mechanism for managing and protecting the Tauranga Moana harbour. Ngāi Te Rangi and Ngāti Ranginui argued that the provision granted Hauraki iwi rights in Tauranga Moana and over the framework that were not previously agreed, and that were incommensurate with their interests. 
 
The central allegation by Ngāti Porou ki Hauraki was that the Crown failed to treat them equally to other Hauraki iwi, in both their collective and iwi-specific settlement negotiations. They claimed they were denied funding and access to the Crown, among other things, leaving them without an effective voice in the negotiations, and ultimately, without a fair redress offer from the Crown. They were particularly aggrieved at the Crown’s removal of some cultural redress from their individual settlement following an overlapping claims process they alleged was biased and unsound.
 
The Tribunal found the claims of Ngāti Porou ki Hauraki were not well founded, and as such, made no recommendations in respect of them.
 
The Tribunal found the claims of Ngāi Te Rangi, Ngāti Ranginui and Ngātiwai to be well founded. It found the Crown had breached its Treaty obligations to these iwi by failing to properly consult them, failing to communicate openly, failing to share information with and between overlapping groups, adding redress after reaching initial agreements, and damaging relationships. Further, it found the Crown had breached the Treaty by failing to properly promote, allow for, and facilitate tikanga-based processes at the appropriate times, especially at the start of negotiations. Finally, the Tribunal criticised the Crown’s public guide to settlement policies and processes, Ka tika a muri, ka tika a mua (the Red Book). Echoing previous Tribunal reports, it found the book to be vague, unhelpful, and unfit for purpose.  
 
Accordingly, the Tribunal recommended that legislation giving effect to the Pare Hauraki Collective Settlement Deed, and the individual Hauraki iwi settlement deeds, not proceed until the contested redress had been through a proper overlapping claims process as set out in the report.
 
It also recommended that the Crown, when dealing with overlapping interests during settlement negotiations, fully commits to and facilitates consultation, information sharing, and tikanga-based resolution processes that reflect the Treaty principles identified in the report; and that it amend the Red Book accordingly. Chapter 5 of the report details substantive recommendations about the use of tikanga-based processes to resolve overlapping interests.

The Mana Ahuriri Mandate Report was released in pre-publication form on 20 December 2019. The report addresses a claim brought on behalf of the Ngāti Pārau hapū about the Crown’s acceptance of the ratification vote for the Ahuriri Hapū deed of settlement, and the proposed post-settlement governance entity – the Mana Ahuriri Trust.

In 2009, Mana Ahuriri Incorporated received a mandate from seven Ahuriri hapū to negotiate their historical claims. Negotiations were interrupted from September 2011 to February 2013 by a period of dysfunction among the komiti members. After the negotiations resumed in mid-2013, an agreement in principle was signed in December of that year, followed by the initialling of a deed of settlement in June 2015. A ratification process was then held for the deed of settlement and post-settlement governance entity, with a ratification vote taking place from 17 July 2015 to 21 August 2015.

The claimants argued that the ratification process for the deed of settlement was flawed. In particular, they claimed that the negotiating entity, Mana Ahuriri Incorporated, had lost its mandate and the Crown should not have proceeded with the settlement. In the claimants’ view, the Crown breached Treaty principles by failing to monitor the mandate sufficiently and by signing the deed of settlement despite a flawed ratification process and loss of mandate.

The hearings were held in Napier in February 2019, with closing submissions filed in May and June 2019. The Tribunal consisted of Chief Judge Wilson Isaac (presiding), Prue Kapua, Dr Grant Phillipson, and Dr Monty Soutar. In its report, the Tribunal agreed that the process was flawed and the Crown’s decision to proceed with the settlement in those circumstances was in breach of the Treaty principles of partnership and active protection. However, while the Tribunal found that the Crown was in breach of Treaty principles for accepting the ratification results for the Manu Ahuriri Trust, it did not find that the Crown’s acceptance of the deed of settlement was a breach.

The Tribunal recommended that, before introducing settlement legislation, the Crown obtain an undertaking from the Mana Ahuriri Trust to hold an election for all nine trustee positions, with an independently monitored voting process. It further recommended that the Crown should pay the costs of the election.

The Tribunal made further recommendations to prevent recurrence of similar prejudice in future settlement.

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.