Rapua ngā tuhinga ruku tātari

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.

Ko to ringa ki nga rakau a te Pakeha

Let your hand be armed with the technology of the Pakeha

In June 1986, the Waitangi Tribunal received a claim from Huirangi Waikerepuru on behalf of Nga Kaiwhakapumau i te Reo which sought to reopen the proceedings that had resulted in the Tribunal’s just-released Report on the Te Reo Maori Claim. The claim alleged that the Crown had breached the Treaty by failing to await the Tribunal’s recommendations before introducing a Bill on the Maori language to Parliament and that Maoridom's claim for radio frequencies and a television channel and resources were being denied.

The claimants subsequently accepted that the Tribunal had no power to reopen matters that it had already dealt with in its Report on the Te Reo Maori Claim but suggested that, since the Tribunal had not made final recommendations on the broadcasting issues, it could still consider them.

In June 1990, claim Wai 150 was lodged by Sir Graham Latimer on behalf of the New Zealand Maori Council. It sought an urgent interim ruling and recommendation that nothing be done to pursue the spectrum management policy embodied in the Radiocommunications Act 1989 until there had been a negotiated resolution of all the issues raised in the claim and that any title to radio spectrum products created by the Act be subject to a caveat which recognised and protected the Maori interest in radio frequencies.

The claim sought findings that Maori have rangatiratanga over the allocation of radio frequencies and that, in the absence of an agreement with Maori, the sale of frequency management licences under the Radiocommunications Act 1989 would breach the Treaty of Waitangi and be prejudicial to the interests of Maori.

The existence of radio waves was discovered by Heinrich Hertz in about 1886, and their development was initiated by Guglielmo Marconi at the turn of the century. Neither man was a British subject.

The resource existed in economic terms before then, and in 1840, even though, like oil, the capacity of land for grazing, or orange roughy, it had zero value until it was discovered and the technologies to use it were developed.

Whether discovered or not, the chiefs and tribes had absolute chieftainship over all resources, discovered and undiscovered, in New Zealand in 1840, just as a sovereign state makes similar claims in respect of such resources within its own borders. Maori could not be expected to surrender such resources to the discoverer because of the discovery, any more than a modern state would to the Italian Marconi or his descendants.

Wai 150 statement of claim

At the initial stages of the inquiry, counsel agreed that the Wai 26 claim should be amalgamated with the Wai 150 claim and that the two ought to be dealt with as one. The Tribunal agreed to this course of action.

In mid-July 1990, the claimants filed a request for urgency on the ground that the Crown was planning to seek tenders for 20-year rights to AM and FM radio frequencies in August. Despite formal requests by both the claimants and the chairperson of the Tribunal, the Minister of Communications replied that the Government was not prepared to delay the tendering process, and so the claimants commenced a High Court action seeking a judicial review of the Minister’s decision. This action was successful. The Crown appealed to the Court of Appeal, which heard the case in early October and issued its judgment on 1 November. A majority of the five members of that court found that the Minister could not reasonably have decided to proceed with the tender without first awaiting the report of the Waitangi Tribunal, and thereafter the Tribunal's inquiry proceeded under the protection and the urgency of that ruling.

On 5 October 1990, the chairperson directed that Judge Peter Trapski, Bishop Manuhuia Bennett, and Erihana Ryan would constitute the Tribunal to hear the claim, with Judge Trapski presiding. The claims were heard over 10 days in Wellington, at Waiwhetu Marae and the Tribunal's offices, and the Report of the Waitangi Tribunal on Claims Concerning the Allocation of Radio Frequencies was released in November 1990.

The Tribunal concluded that the claim was well founded. It recommended that the Crown suspend the radio frequency tender for six months to allow further consultation with iwi to take place; that it make independent technical advisers available to iwi to assess their needs and to ascertain what would be an appropriate allocation of radio frequencies; and that FM frequencies be made available for Maori broadcasting in Auckland and Wellington.

The broadcasting media, radio and television, play a key role in the maintenance or loss, development or stagnation of language and culture, not only by what they do, but by what they do not do. The virtual absence of Maori language from radio and television has been a potent factor in the decline in the number of fluent speakers of Maori over the last forty years, to the point where its survival is problematic. This must be rectified. …

The spectrum is a natural resource, enveloping the whole of the earth at the same time. As such it is for the whole of mankind. It cannot be possessed by one person or by one group; it can only be used by them. The available right is the right of access shared with all other members of the human race. The spectrum is a taonga to be shared by the tribes and by all mankind. Neither of the Treaty partners can have monopoly rights to this resource. …

[This] is not simply a case where Maori can argue prior ownership before the Treaty. Nor can the Crown argue that Maori have no rights to the spectrum other than a general public right, nor a right only in terms of the language. The use of the radio spectrum is so intimately tied up with the use of Maori language and culture, and the protection and development of these things, that the Maori right to access must amount to more than this. Tribal rangatiratanga gives Maori a greater right of access to the newly discovered spectrum. In any scheme of spectrum management it has rights greater than the general public, and especially when it is being used for the protection of the taonga of the language and the culture.

The Waitangi Tribunal

In 1977, the Housing Corporation at Tauranga proposed to discharge sewage collected from 15 State houses into Welcome Bay. A claim was received in June 1977 from the Tauranga executive of Maori committees asserting that Rangataua (Welcome Bay) had traditionally been an important place for local Maori and that shellfish which they habitually collected in the area would be adversely affected by the proposed discharge.

The claimants’ counsel withdrew the claim in August and letters subsequently received by the Tribunal from the Housing Corporation showed that the corporation had abandoned the sewage discharge plan and the water right obtained for it. Therefore, the Tribunal reported on 20 February 1990 that it would not be inquiring further into the claim. The report was signed by Deputy Chief Judge Ashley McHugh.

In 1987, a claim was received from the Oamaru Maori Committee and the Ngai Tahu Maori Trust Board in respect of the granting of a water right to the Waitaki County Council for the disposal of effluent from a proposed sewage scheme at Kakanui. The claimants alleged that the granting of the water right was contrary to the principles of the Treaty of Waitangi.

The Waitaki County Council made it clear that they respected the claimants’ views and did not want to proceed with a scheme offensive to Maori in the district. The claimants for their part realised the acute need for a modern sewage treatment plant in the area, so the council and Maori set out to devise a modified scheme together.

The claimants sought leave to withdraw the claim, and, in its report of 20 February 1990, signed by Deputy Chief Judge Ashley McHugh, the Tribunal noted that it would not be inquiring further into the matter, although the claimants would be able to file a fresh claim if the need arose. The Tribunal noted with approval the constructive and cooperative approach adopted by all the parties which made it possible to advance the proposals without the expense and effort of public hearings.

In 1984, the Tai Tokerau District Maori Council lodged claim Wai 13 alleging that fisheries regulations were contrary to the Treaty of Waitangi.

Before the Wai 13 claim was ready to proceed, the Tribunal constituted to hear the Muriwhenua fishing claim (Wai 22) began sitting and later substantially covered the same issues in its Report on the Muriwhenua Fishing Claim. Because of this, in a report dated 20 February 1990, Deputy Chief Judge Ashley McHugh advised that the Tribunal would not be inquiring further into Wai 13.

In August 1984, Ringakapo Payne sought advice on how to lay a claim about the flooding of Māori-owned building sections at Tokaanu. She was sent instructions for laying a claim, but no more correspondence was received and the Tribunal did not inquire further into the matter. The report was signed by Deputy Chief Judge Ashley McHugh and was dated 20 February 1990.

In 1979, the secretary of the Te Tii (Waitangi) B3 Trust asked the Waitangi Tribunal to make representations in connection with the imposition of land tax on land administered by trustees under section 438 of the Māori Affairs Act 1953.

Four months later, the claimants advised the Tribunal that they wished to withdraw their claim, reasoning that section 6(1) of the Treaty of Waitangi Act 1975 was negated and overridden by section 6(6) and that it was fruitless for any Māori to make representations to the Waitangi Tribunal.

In its report of 20 February 1990, the Tribunal stated that it would not be inquiring further into the claim. The Tribunal commented that it was regrettable that the claimants saw section 6(6) as preventing the Tribunal from adequately considering their grievance and noted that the claimants’ right to file a fresh claim in relation to the same subject matter was not prejudiced. The report was signed by Deputy Chief Judge Ashley McHugh.

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.

Claim Wai 17, the Mangonui sewerage claim, was brought on 30 March 1987 by MacCully Matiu on behalf of the Ngati Kahu Trust Board. The claimants objected to the Mangonui County Council’s East Coast sewerage scheme, which involved the siting of a sewage treatment plant at Taipa and the construction of oxidation ponds beside a creek that flowed into the Taipa River. Because there was some urgency attached to the development of the scheme, the Tribunal considered this issue separately from Ngati Kahu's wider lands and fisheries claims.

The Tribunal constitued to hear the claim comprised Eddie Durie (presiding), Bishop Manuhuia Bennett, Monita Delamere, Georgina Te Heuheu, and Professor Keith Sorrenson. Hearings were held in October 1986 and April 1987, and the Tribunal delivered its report to the Minister of Māori Affairs and the claimants in August 1998.

The Tribunal found that the construction of any sewage works necessarily imposed certain costs, both financial and cultural, on the local community. Ngati Kahu had good cause to bring their claim and reason to feel aggrieved but the cost to the community, of which they formed part, would be too great in this instance if the claim was allowed. The Tribunal therefore made no recommendations in its support.

There are times when Maori interests must take priority, according to the Treaty's terms, for the solemn guarantees in the Treaty were a small price to pay for the cession of sovereignty and Pakeha settlement rights that cannot now be denied. But there are times to recall that our forebears agreed to no less than a Pakeha settlement, and a world of our own where two peoples could belong. This claim is a salient reminder that if the cultures of our founding inheritance are both to stand proud, a compromise is sometimes required.

The Waitangi Tribunal

Truth springs out of the earth
and righteousness looks down from Heaven

Psalm 85, verse 11

The Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim was released in June 1988. It dealt with various alleged failings of the Crown to meet its obligations under the Treaty of Waitangi in regards to the fishing rights of the Muriwhenua tribes of the Far North. The Tribunal reported its findings in the hope that it would assist the Crown and Muriwhenua Māori in the negotiations that both were then engaged in.

It was a solemn pledge, in the Treaty of Waitangi, that the Crown guaranteed to Māori the full, exclusive and undisturbed possession of their lands, estates, forests, fisheries and other properties for so long as they might wish and desire to retain the same in their possession. The principle was that despite settlement, Māori would not be relieved of their properties without some further agreement. It was a high ideal when pitted against the certainty of European settlement at the time, but sensible, necessary and proper all the same. The principle survives in the international instruments to which most modern states adhere, that all peoples have the right to retain their properties for so long as they like, and to develop them along either or both customary or modern lines.

The Waitangi Tribunal

Seven hearings were held between December 1986 and April 1988 before the Tribunal of Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, Sir Monita Delamere, Georgina Te Heuheu, Professor Keith Sorrenson, and Bill Wilson.

The Tribunal found that the Crown had failed to meet its Treaty obligations – ‘it is all too clear that over the years numerous blatant and serious breaches have occurred of the Treaty guarantee’ – and that the Muriwhenua tribes had lost a viable fishing industry. It also found that the quota management system, as then applied, was in fundamental conflict with the Treaty’s principles and terms because it apportioned to non-Māori ‘the full, exclusive and undisturbed possession of the property in fishing that to Māori was guaranteed’. The Tribunal considered, however, that the system did not have to be in conflict with the Treaty and could instead be beneficial to both parties, if an agreement or arrangement could be reached.

The Treaty is on trial. It is an historic development that Government has arranged a working party of Crown and Māori representatives to negotiate fishing terms. Such a move was contemplated by the Treaty but has not been tried before. It comes now at a time when the parties are not so much free to seek change as compelled to that course. Now, after a century of debate, extreme positions have become entrenched and there is a weight of prejudice on both sides to overcome. The question is whether the spirit of the Treaty can still be found.

It is not a question of compromise but of recognising the contribution that both Treaty parties can make to building a unified whole. The spirit of the Treaty as found in statements in the British Houses of Commons and Lords, well over a century ago, is not dead. It has simply found a new home in the universal and regional instruments of the international community.

The Waitangi Tribunal

The Tribunal had been asked to defer making any recommendations while the negotiations between the parties were progressing, but it did recommend that the Crown meet the claimants’ reasonable costs.