Rapua ngā tuhinga ruku tātari

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.

In May 1989, Pauline Tangiora lodged a claim with the Tribunal seeking the return of five acres at Mahia owned by the Wairoa District Council and formerly used as a roadman’s cottage.

In its report of 19 December 1990, signed by Chief Judge Eddie Durie, the Tribunal noted that the claim related to a local authority and that the Tribunal’s jurisdiction was to hear claims only against the Crown. The Tribunal did note that it might be possible to mount a Treaty argument relating to the Crown’s duty to return gifted land, but further noted that such an argument had not been made. In addition, it appeared to the Tribunal that the Maori Land Court was able to assist in this inquiry and to revest the land to suit. Accordingly, the Tribunal did not inquire further into this claim, but it gave leave for the claim to be revived in the event that a land return was not proceeded with or additional information was uncovered.

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.