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September 1992. 'Public Access', No. 1

Ngai Tahu Claim


There have been a variety of contradictory and alarming statements from spokespeople for the Ngai Tahu Maori Trust Board as to their interest in South Island parks. Their land claims arise from past Treaty and other contractual failures by the Crown (see Appendix for a summary of land claims and the Waitangi Tribunal's findings).

Board Chairman Tipene O'Regan has variously stated that Ngai Tahu want a form of 'shared interest' with the Crown, or joint or shared 'title'. Conservation Minister Denis Marshall has confirmed that Government is considering these options.

Outright title is also sought to specific geographic features of particular cultural significance including Aoraki (Mount Cook), the Takitimu Mountains in Southland, and indigenous forests in Southland and on the West Coast (ODT 11/5/92).

Enormous government as well as Ngai Tahu resources went into establishing the validity of the latter's land claims. The Waitangi Tribunal determined that land west of the Waiau River--now predominantly Fiordland National Park, and from the east coast plains to the Southern Alps Main Divide, were legally purchased by the Crown. It was also found that the reserves Ngai Tahu wanted at the time of purchase were productive lands such as the North Canterbury plains. They were not the low value wildlands and mountains now included in the public conservation estate.

The only grievances sustained by the Tribunal that affect the public conservation estate concern the Crown Titi Islands, Lake Ellesmere, parts of the Arahura Valley, and Ngai Tahu ownership of greenstone.

Alarm from non-government conservation and recreation leaders concerning claims over conservation estate have been met with responses that public access would not be restricted any further under Ngai Tahu joint or outright ownership and that there is nothing to fear.

What is even more alarming than the Ngai Tahu's obvious designs on any public land as a form of reparation is the apparent willingness of Government to hand over ownership as a cheap option for itself. The claims over national parks and the high country are publicly presented as having the moral force of a favourable ruling from the Waitangi Tribunal behind them. They do not.

Mr. O'Regan states that the objective of the Ngai Tahu claims is to provide a sound economic base to fund social, educational, superannuation and health programmes. The Trust has sought shares in Government utilities such as Electricorp as 'obvious targets' but "Government doesn't appear interested as this could depress returns from eventual asset sales to the private sector." Minister of Maori Affairs Doug Kidd claims that the Government is severely restrained as to responses to Ngai Tahu claims as "New Zealand is a bankrupt country" (Radio NZ 11/8/92). Kidd states that the reason for using the public conservation estate for settlement is because it is the biggest area of Crown lands left, while acknowledging that its economic value is significantly less than for SOE's.

While many people who are aware of the nature of past wrongs against Ngai Tahu by the Crown would agree that some form of reparation is desirable, the nature of any settlement is crucial to public acceptance. Unlike SOE's, our national parks are held in trust for the benefit of present and future generations of all New Zealanders. They deserve a higher level of protection from claimants than the now private lands that comprise the vast bulk of the lands that Maori tribes were wrongfully dispossessed of.

The Government of the day and the Crown do not have 'title' or transferable ownership in the sense that Mr. O'Regan clearly seeks for Ngai Tahu. The Crown enjoys 'eminent domain,' a constitutional convention by which the Crown does not, and is not required to have, 'title' (i.e., certificate of title) to prove ownership. Under New Zealand's land registration system certificates of title are only required for private lands. What Ngai Tahu seeks by way of shared or joint 'title' is a direct claim of private ownership. To oblige, the Crown would have to cede her eminent domain over the interest transferred to Ngai Tahu, as well as any balance that remains in public ownership. This would need to be transferred to a new legal entity, presumably a Government Minister. The Minister would then be free to dispose of his or her remaining interest at any time in the same way as an SOE's land holdings can be sold.

Ngai Tahu have made no secret of their commercial ambitions to achieve their social goals. The activities envisaged include tourism, fishing, forests, and land. While claiming that Ngai Tahu would not obtain any more commercial rights over our parks than other people the reality would be very different.

The Ngai Tahu Trust Board is a private entity where every member has a right of beneficial income from the assets of the trust. There is no intention to have publicly listed shareholdings (Tipene O'Regan Radio NZ 11/8/92). As a private body there can be no question of political accountability for it advancing its own corporate interests, and it would be unreasonable to attempt to impose such.
In the absence of a sound economic base arising from settlement by way of transfer of more profitable assets, there will be unavoidable pressures for development and exploitation of our public conservation lands under shared or joint title. Even if the legislative purposes of national parks remain unchanged it is highly improbable that any government would intervene or sue a co-owner who proves unwilling to implement the principles of the present National Parks Act, particularly if government itself established that conflicting interest.

Mr. O'Regan states that Ngai Tahu is against 'absolutest prohibitions' for conservation (Radio NZ 29/7/92). This is an early indicator that protecting nature for its own intrinsic worth, as provided by the National Parks Act, is inconsistent with his Board's philosophy. Additionally a direct conflict of interest would be created when Ngai Tahu is both an approving owner, and a developer requiring control by the same approving authority. Conflicts will also arise with other developers, and also with the public in general who wish to have the parks remain in as natural and non-commercial state as possible while allowing freedom of access. It is inevitable that natural intrinsic values will become commercial opportunities, the capitalisation of which would directly conflict with the ideals of free public access and enjoyment. A private owner or co-owner would have a privileged position in relation to others to exploit such opportunities.

Emperor Justinian, Queen Victoria, and our colonial administrators had no difficulty in recognising that inherent conflicts of interest arise between private and public interests, and in ascertaining that public interests must prevail over public resources. Our present-day politicians need reminding of some very basic human history.

Even if a new co-owner or owner was the 'greenest' group in New Zealand they should not be granted control, because whoever controls these lands must be answerable to the people. Private owners are not. It must be acknowledged that public authorities can stray from or be negligent in their role as custodian of the public estate. However there are democratic procedures open to everyone to check such tendencies.

It is for sound constitutional reasons that there are separation of powers and interests within the state (e.g., between the Crown, executive, legislature, and judiciary). It is particularly alarming that the Minister of Justice appears not to draw similar distinctions when he entertains private ownership over lands held in trust for the benefit of all of the people.


September 1992. 'Public Access', No. 1

How could Maori claimants be accommodated?

If the objectives of Maori claims are confined to the re-establishment of mana and ensuring proper presentation and management of areas of special cultural significance, this is possible without obtaining title and within the terms of the existing provisions of the National Parks Act. Section 4(2)(c) requires preservation as far as possible of archeological and historical sites. Therefore all that is required is the identification of the sites and changes in management plans if necessary.
Specially protected areas can also be created with entry by permit only (sections 12, 13). This has already been done for Maori cultural reasons over a nephrite (greenstone) area in the Mount Aspiring National Park.

If direct tribal input to management of particular parks is desirable, this can be done by extending the membership of conservation boards. This is already the case for Tongariro and Egmont National Parks (section 32) and would only require slight legislative amendment to include other parks.
To satisfy Ngai Tahu economic aspirations the Government has considerable assets in the form of SOE's to consider as forms of settlement, if it wishes, without jeopardising the founding precepts of our national parks, reserves and conservation areas.

Due to the trust under which they are held, public estate such as our parks and reserves require greater protection from claimants than replaceable assets held by government.

In general, loss of public benefit from disposal of government commercial enterprises would be shared more equitably across the community. They are also capable of re-creation in the future if a government so desired. In any event government has stated its intention to dispose of SOE's to the private sector. It is therefore mainly a matter of which private interests end up with ownership or shareholdings, and the monetary returns government wishes to receive. Landcorp and Forestcorp land holdings have the potential to satisfy in whole or in part many claims. Government could also purchase private land on the open market to meet its obligations to Maori claimants, or to provide cash settlements for claimants to purchase private land if they so wish.

Unlike Government's assurances to private land owners that private land is sacrosanct, no such assurances have been obtained from Government that it has binding obligations to protect conservation lands. Both the Ministers of Justice and Conservation have refused to give any assurance that Parks are sacrosanct, or that the pernicious Section 436 of the Maori Affairs Act, which overrides all other legislation, will not be used to ram through any settlement of land claims.



March 1992. 'FMC Bulletin', Number 109

Tribunal rulings on Ngai Tahu claims

Hugh Barr

Most members will be aware that the Ngai Tahu have been pursuing land and other claims involving seven eighths of the South Island through the Waitangi Tribunal. The Tribunal delivered its decision on these claims in February, 1991. FMC presented submissions on behalf of recreational users as set out in the September 1989 FMC Bulletin.

The Tribunal's decisions were for the most part measured and well reasoned. It recommended "large and generous" compensation for the Crown having left the Ngai Tahu "largely landless and impoverished," (since) the 187O's. The nature of compensation was left to negotiation between the tribe and the Crown. In June Ngai Tahu and the Crown commenced negotiations on compensation for their grievances. These negotiations have to date addressed some of the smaller claims.

There have been some wild statements made about the claims. Perhaps the most outrageous was by former National Maori Affairs minister Winston Peters who, when the report was released, said he would be happy to see some of the South Island's national parks vested in Ngai Tahu. Since then he has been sacked as minister, but not for this reason.

The Ngai Tahu did not ask for vesting of national parks in them as part of their grievances, and so the Tribunal rulings do not directly address such issues. However there appears a body of opinion that sees this type of approach as a cheap option for the Crown. To dispel these views, and inform members of the nature of the Tribunal's rulings, we summarise the claim and relevant findings.

The Claims
These were made up of eight main claims concerning lands acquired by the Crown from Ngai Tahu between 1844 and 1864. A major claim concerned failure to provide for mahinga kai (places where food is gathered) and a number of smaller claims. The areas of the eight main land claims are shown on the map. The nine major claims involved 73 specific grievances on which the Tribunal ruled.

Two of these grievances concerned whether two major areas that are now predominantly public conservation land were in fact sold. These were (a) land west of the Waiau River in Southland--now predominantly Fiordland National Park and (b) the "hole in the middle" --from the east coast plains to the Southern Alps Main Divide, in the Kemp purchase. The Tribunal found that both these areas had indeed been legally purchased by the Crown. Therefore in terms of settlement of the claims, this land ranks equal with other lands, something that may not have been the case if it had not been legally purchased.

The claims involving significant conservation lands are:

Kemp Purchase: This was by far the largest acquisition, 20 million acres, or one third of New Zealand. It was also the most controversial, with the Crown paying a mere £2000, and reserving only 6400 acres or just under 10 acres per person for Ngai Tahu needs. Ngai Tahu registered eleven grievances on this purchase. Their main concern was that the Crown failed to provide ample reserves for their present and future needs, and that mahinga kai were not reserved. They wanted the block between the Kowhai and Waimakariri Rivers reserved, and also a right of way across what is now Arthur's Pass, or thereabouts to the West Coast. They also disputed the boundaries of the purchase. Ngai Tahu claim they agreed to sell only the Plains, that Lake Ellesmere, an eeling lake, was excluded, and that, although Europeans were granted pastoral lands under land settlement acts, Ngai Tahu were not.

The purchase was originally discussed by Grey, and then negotiated in detail by Kemp. Although Kemp was instructed by Grey to identify and survey all land reserved from sale, he did not do so, although making several promises. He was then replaced by Walter Mantell, who was not present at the agreement stage. He narrowly interpreted what was to be reserved, substantially reduced the reserves and did not recognise mahinga kai. This outcome was approved by Grey, and Mantell was rewarded for it.

The Tribunal upheld the grievance that the Crown failed to provide the adequate reserves Kemp had agreed to, for Ngai Tahu's current and future needs or for mahinga kai. The Tribunal also found that the reserves did not allow them to develop an economic base in pastoral farming. In fact, Grey and Mantell appeared determined not to let this happen. The Tribunal did not agree however that the boundaries were substantially wrong or that the "hole in the middle" had not been purchased.
The Tribunal also considered that a number of small additional Crown settlements, including paying £30,000/year to Ngai Tahu since 1944, had done very little to redress the very great wrong originally incurred.

Murihiku (Southland): This was a purchase of 7 million acres for £2600, with a mere 4875 acres set aside for the Ngai Tahu. Again Mantell was the Crown's negotiator.
The grievances included that reserve areas which Ngai Tahu had requested, mainly on the coast, were not set aside, and that promised schools and hospitals were not provided. The Tribunal sustained both these grievances.

North Canterbury and Kaikoura: This purchase was to extinguish Ngai Tahu rights to lands that the Crown had already sold for settlement, assuming it had bought them in a Nelson purchase from an adjacent tribe. The purchases were of 3.8 million acres for £800, with less than 6000 acres set aside. Good grazing land was selling at 10 shillings per acre at the time. The Tribunal found Ngai Tahu had never been adequately compensated, and had been coerced. In the case of the Kaikoura purchase, a request to set aside 100,000 acres around the Conway River as reserve was turned down by the negotiator, James MacKay. The Tribunal found that inadequate reserves had been set aside.

Arahura (Westland): This was a purchase the Crown believed it had already made, either through the Kemp purchase or from the Nelson-based Ngati Toa tribe. James MacKay, the negotiator was instructed to settle for no more than 500 acres for reserves, and pay no more than £200, the "price of a horse", for the 7 million acres. He persuaded the Crown to lift its bid to 12,000 acres of reserves and £300. Ngai Tahu originally requested 200,000 acres, between the Grey, Arnold and Hokitika rivers, and control of their prized greenstone (pounamu). Their reserves included 500 acres of land at what is now Greymouth. MacKay also gave the tribe the "right" to re-purchase back country at 10 shillings an acre, 12,000 times the price the Crown had paid them for it.
The Tribunal found the price paid was too low, and that a larger reserve should have been set aside to protect greenstone in the Arahura Valley. The Tribunal did not support the grievance that Ngai Tahu should have received its originally requested 200,000 acres of reserve. Nevertheless, it found that the original reserves allocation were quite insufficient for the future economic or social needs of the tribe. On the greenstone question, the Tribunal recommended that the Crown vest all greenstone within all blocks purchased from Ngai Tahu with them. It also recommended the Crown to purchase land on either side of the Arahura and its tributaries, to their sources, and transfer it to Ngai Tahu. It also proposed the peppercorn rentals for Greymouth land owned by Ngai Tahu should be immediately rectified.

Rakiura (Stewart Island): This was purchased for £6000. Grievances centre on the Titi Islands, a valued food resource for mutton-birds, and Codfish Island. The Tribunal agreed to vesting the Crown Titi islands with Ngai Tahu, but did not uphold the Codfish Island grievance.
Mahinga Kai: These claims centre on inadequate land provided for cultivation, and on inability to gather traditional foods such as eels, salmon, crayfish, shellfish, duck, wood pigeon and other birds. Hearings centred on the Titi Islands (already discussed), Lake Ellesmere and its associated Kaitorete Spit and Lake Forsyth. The tribunal found that pollution from settlement, forest clearance, and industry had greatly diminished mahinga kai and that, whereas settlers had benefited from this development, Ngai Tahu had suffered. It also found the Crown had failed to provide sufficient reserves to preserve mahinga kai, and recommended greater Ngai Tahu control over Lakes Ellesmere, Forsyth, and their fishery. It also recommended greater Maori involvement in environmental planning, the reduction of water pollution, and resource management through greater consultation.

Conclusions
Five points stand out from the evidence and the Tribunal's rulings.

The first is that the tribe were not left with sufficient land for a current or future economic base, and that the Crown did not protect their traditional food sources. Grey, Mantell and others drove an unfair bargain that breached Treaty principles of fairness. The Crown's acquisition of 34.5 million acres for £14,750, while leaving Ngai Tahu 35,757 acres of largely unproductive land is demonstrably unjust. Subsequent efforts by the Crown to make good Ngai Tahu's loss were few, dilatory and largely ineffective. The Tribunal concluded the tribe is clearly entitled to very substantial redress from the Crown. However it believed this redress must reflect present day realities.

The second is that the reserves the Ngai Tahu wanted set aside at the time of purchase were productive lands, such as the North Canterbury plains. They were not the low value wildlands and mountains now included in the public conservation estate. The only grievances sustained by the Tribunal that affect the public conservation estate concern the Crown Titi Islands, Lake Ellesmere, parts of the Arahura Valley, and Ngai Tahu ownership of greenstone.

The third is the recognition by the Tribunal that other legal undertakings by the Crown cannot be lightly discarded. For instance, greenstone mining licenses should be allowed to expire.

Fourth, there will be bewilderment and resentment on the part of non-Maori New Zealanders, 140 years after the event. They will be asked to pay to right these wrongs created by the British Crown over which they had no control, and from which most have not benefited.

Finally, it is apparent from the Ngai Tahu evidence that Treaty grievances have been so ingrained in Maori tribes over the 140 years of Crown procrastination, that it is unclear that anything the Crown could do would lead to reconciliation.

The full report covers some 1200 pages and is available from Brooker and Friend (P O Box 43, Wellington).

[Reprinted in 'Public Access', No. 1. September 1992].

STOP PRESS

Government has purchased another pastoral lease for settlement of Ngai Tahu claims--

March 1993 . 'Public Access', No. 2

Maori land claims and 'partnership'

A major challenge to be faced is the potentially divisive issue of Maori land claims as they affect the public conservation estate. There has not been an open debate so far; Government is avoiding this, preferring secret negotiations, assertions that there is nothing to fear, or by sneering at anyone who dares to question. Most pakehas are so uncertain as to the meaning or relevance of the Treaty of Waitangi, or are immersed in 'cultural guilt,' that it seems safer to let matters lie. Thus there is a real danger for public lands and their future availability for public recreation.

At the risk of being denigrated by those who consider they alone occupy the 'moral high ground' on Treaty matters, this issue looks more closely at settlement of the Ngai Tahu land claim. We also touch on the implications arising from applying the 'principles' of the Treaty to the public conservation estate. The Mount Hikurangi case provides graphic illustration of what we fear from privatisation in the name of 'partnership.'

We conclude that Government-moves to divest public ownership and control over the South Island high country is a confidence trick.

This arises through misrepresentation of the Waitangi Tribunal's Ngai Tahu land claim findings. The Tribunal held that none of the South Island high country was unlawfully purchased by the Crown.

We are not alone in suspecting that Government's agenda is primarily driven by financial considerations. The economic consequence of using conservation areas and national parks for settlements is negligible. That is compared to parting with SOE assets that give good financial returns, either through dividends or by high sale prices on privatisation.

The bipartite process adopted to date for claim settlement assumes that the Government already has the knowledge and a mandate from its constituents to settle claims, proven or unproven, with whatever natural resources it deems appropriate. The fact is that such a mandate has never been obtained in accordance with any recognisable public process, and there does not appear to be any intention to remedy this.

Fundamental changes to the founding 'preservation-with-use' and public ownership philosophy behind the conservation estate may also be in store. The notion of a 50:50 partnership between the Crown and Maori has currency. We suspect that this is based on questionable interpretations of Treaty 'principles.' These are being applied through all areas of Government with resource management responsibilities.

There appears to be a major gulf between the existing legislative purposes for Crown protected areas and the variously expressed 'conservation-for-utalisation' preferences of many iwi. This conflict of objectives must be openly debated.

Separate from claim settlements through the Waitangi Tribunal, DOC appears set to divest public ownership and instigate 'co-management'over the conservation estate in general. This arises from DOC giving effect to the 'principles' of the Treaty. There could be profound impacts on the nature of 'public' lands, how they are managed, and for who's benefit.

Whatever the intentions behind the changes it is distinctly undemocratic for the public, as owners of the conservation estate, to be left out in the cold by Government.

Implications for public access and recreation of giving effect to the 'principles' of the Treaty of Waitangi is subject to research by PANZ. We intend reporting next issue.

PANZ acknowledges the legitimacy of Maori claims proven before the Waitangi Tribunal and the need for Government to settle those claims. There should be consideration of the return of the land in question, and alternatively the use of other assets, to arrive at equitable settlements.



March 1993. 'Public Access', No. 2

Ngai Tahu land claim


In the last issue (of 'Public Access') we addressed the Waitangi Tribunal's findings and recommendations on the Ngai Tahu land claim. We concluded that claims over South Island national parks and high country were being presented as having the force of a favourable ruling from the Tribunal behind them, when we contended that it did not.

In order to ascertain from Government what is the basis for them to be considering use of these lands as part of a settlement with Ngai Tahu, PANZ put to the Minister of Justice a series of questions in November last year. It took almost 3 months and 3 follow-up letters or faxes to obtain a substantive reply from Mr Graham.

Below is Mr Graham's reply, and our response to it --this is unavoidably long. Unlike Government we do not believe that unsubstantiated assertion is good enough. Our commentaries that follow provide the basis for our view that the Government is conducting a 'confidence trick.'

For a summary of our concerns see Maori land claims and 'partnership'

Meanings & Names--

Kemp purchase: Canterbury and Otago
mahinga kai: places where food is procurred or produced
Murihiku: Southland
pingao: a native sand-binding sedge
pounamu: greenstone
Waihora: Lake Ellesmere
Wairewa: Lake Forsyth



Question One:
On 28 August 1992, and again on 22 October 1992, in reply to (correspondents) you stated "a number of options for settlement of the proven Ngai Tahu claims are currently being investigated by the Crown and Ngai Tahu negotiating teams".

Would you please cite the relevant Tribunal findings and recommendations for areas subject to the Kemp and Murihiku purchases, that sanction changes to ownership, partial loss of Crown control, or co-management over areas now administered by the Department of Conservation, and pastoral leases? We find basis in the Tribunal's report for pounamu, Waihora, Wairewa, and pingao being used in settlement but none for public, and pastoral leasehold, lands in the South Island high country.

Answer:
"The Tribunal findings on the Kemp and Murihiku purchases are found mainly in chapters 8 and 10 respectively. These findings relate, inter alia, to inadequate reserves, failure of the Crown to exclude particular lands from sale and failure of the Crown to protect mahinga kai. As to recommendations, at chapter 24.1 the Tribunal states that it was:

"advised by both the claimants and the Crown that they did not wish us to formulate a comprehensive set of recommendations as to the relief which should be provided by the Crown. While it is recognised that the Tribunal would wish to make recommendations on some specific matters (as we have done in respect of pounamu for example), the parties preferred that they should enter into direct negotiations with each other."

In other words, the Tribunal made specific recommendations on discrete areas of the claim, but in respect of the general claim agreed to allow the two parties to negotiate remedies."

Commentary:
This is what immediately follows the passage quoted above, but is not stated by Mr. Graham [24.1 at p 1051]--

"These negotiations would be on the basis of the Tribunal's findings of fact and its consequential findings of breach of Treaty principles."


Two key elements of the grievances heard by the Tribunal related to the western boundaries of the Kemp and Murihiku purchases by the Crown. Ngai Tahu claimed that the western boundaries were the foothills above the Canterbury Plains, and the Wairau River in Fiordland. In other words they claimed that all the Canterbury and Otago high country now occupied by pastoral leases, Arthurs Pass, Mount Cook, Mount Aspiring and Fiordland national parks, etc., had never been sold to the Crown.

During the hearing of the claim the Crown's counsel dismissed these claims as "myths" and "without any factual foundation" (The Press 1/7/88).

The Tribunal's findings on these matters are recorded in its report--

Murihiku western boundary [2.6 at p 104]
"After weighing all the evidence the Tribunal found that the land west of the Wairau was not wrongfully included in the sale. Accordingly the claimants' grievance no 6 was not sustained."

Kemp western boundary [8.11.5 at P 516-517]
"The claim of Ngai Tahu regarding the western boundary was not dismissed lightly. However after a full, frank and lengthy discussion, the Tribunal finds that it does not uphold the claimants grievance no 4(a), that on the matter of boundaries the Crown enforced an interpretation which had not been agreed to by Ngai Tahu in respect of the western boundary."


There was consideration of the matter in chapter 2.4 at pp 53, 62, 63, 65, chapter 2.6 at p 102, and chapter 10.6.18 at pp 632-633. The latter reference repeated the Tribunal's finding in regard to the land west of the Wairau River.

PANZ can find no basis in the Tribunal's findings to support the use of the above lands for settlement of 'grievances' that have been disallowed. Where other grievances, as listed in Mr. Graham's reply, were upheld these were for distinctly different areas or resources.

It is critical to be aware of the function of the Tribunal. Both Ngai Tahu and the Crown submitted to its jurisdiction and did not first settle on an alternative of direct negotiation. This alternative was open to both parties. Instead they chose to submit their cases for determination by the Tribunal. Negotiations then followed.

Tribunal member the Right Reverend Manuhuia Bennett has stated: "Ngai Tahu claims before the Waitangi Tribunal were concerned with finding out whether land had been bought legally or not" (The Dominion 30/5/89). His comment is reinforced by the Tribunal's comments on its jurisdiction--

[1.7 at p 27]
"The role of the Tribunal is to determine whether, and to what extent, the Crown has acted in breach of Treaty principles and the extent to which the claimants have been detrimentally affected by any such breaches. It is then left to the parties to negotiate a settlement of any proven grievance" (our emphasis).
[4.4.2 at p 222]
"For the purposes of the Act [Treaty of Waitangi Act 1975], the Tribunal has exclusive authority both to determine the meaning and effect of the Treaty as embodied in the two texts, and to decide issues raised by the differences between them."

[17.7.2 at p 917]
"We agree with the view of the learned chief judge [Durie] that the statutory authority of the Waitangi Tribunal is to determine whether any act or omission of the Crown is inconsistent with Treaty principles. That is our guiding jurisdiction."


Additionally the Tribunal "shall cause a sealed copy of its findings and recommendation (if any) with regard to any claim to be served" on the claimant and relevant Ministers of the Crown (s 6(5) Treaty of Waitangi Act 1975). The Tribunal has a duty to reach findings, and a discretion to make recommendations.

The Tribunal accepted both parties' requests not to come down with recommendations, except in some specific areas where grievances were upheld.

Further, under the Tribunal's recommendations, it went on to record [25.1.at pp 1061-1065]--

"As stated earlier in this report the Tribunal at the commencement of the claim was urged by both the claimants and the Crown to make findings on the issues and to determine whether there had been breaches of any Treaty principles. We were asked to defer the question of remedies. We agreed to that course for two reasons. First, it obviated possible waste of time in both parties addressing remedies prior to the Tribunal establishing whether breaches had occurred. Secondly, and more importantly, it gave the parties an opportunity after having received the Tribunal's findings, to negotiate a settlement" (our emphasis).


A memorandum to the Cabinet Committee on Treaty of Waitangi Issues, at 1.4.2, more succinctly records the Tribunal's powers: "the power to make findings of fact and interpretation and related recommendations".

In respect of Mr. Graham's assertion in his reply that the Tribunal allowed the two parties to negotiate remedies in respect of a 'general' claim, this is incorrect. While Ngai Tahu lodged a 'general' claim on 26 August 1986, the Tribunal required Ngai Tahu on 24 April 1987 "to file a more particular statement of grievances, with specific details of the acts and omissions of the Crown of which the claimants complained." An amended claim of 2 June 1987 set out these particulars [1.3.2 at p 4]. "As the hearing progressed the tribunal requested Ngai Tahu to file a list of grievances grouped under Ngai Tahu's 'Nine Tall Trees.' In all a total of 73 alleged wrongful acts or omissions of the Crown were claimed to be inconsistent with the principles of the Treaty of Waitangi" [1.3.4 at p 8].

Ngai Tahu themselves limited possible remedies by stating in their amended claim of 2 June 1987-- "any lands allocated to the claimants should be representative of the lost land in both character and geographic distribution" (Appendix 3.4 at p 1110).
In any event the Tribunal directed under 24.1 that the negotiations would be on the basis of the Tribunal's findings of fact. This precludes negotiating 'remedies' involving lands or resources where claims were not sustained. The 'discrete' areas that recommendations were made on had no bearing on high country pastoral leases or national parks.

In its report the Tribunal touched on other matters not directly related to Treaty breaches and its jurisdiction, for instance [25.1]--

"The Tribunal also makes a number of other recommendations which although not directly arising from or remedying breaches of the Treaty nevertheless flow from the Tribunal's inquiry and need to be addressed by the Crown."


Under its 'Remedies' chapter the Tribunal commented on the place of pastoral leases in any settlement [24.5.1 at p 1054]--

"In seeking to re-establish their rangatiratanga Ngai Tahu expect to have land returned to them. The Tribunal agrees with this view. There is adequate land held by the Crown and state-owned enterprises to enable land settlement to feature in any remedy. Ngai Tahu made clear, for instance, their interest in land held under pastoral leases from the Crown."


Further on under 24.5.2 reference is made to national parks--

"A number of the South Island national parks include mountains, lakes and landscape of particular spiritual value to Ngai Tahu. They are the repository of much Ngai Tahu mythology and tradition. Restoration of their rangatiratanga would seem unfulfilled were the return of some at least of these treasured natural features denied to Ngai Tahu".


Pastoral lease and national park lands are clearly on the Ngai Tahu wish-list. However it is now an established fact that the Tribunal disallowed their claims over them. Ngai Tahu may wish to have such lands returned to them but they cannot expect this as of right on the basis of the Tribunal's findings.

National parks, etc., are lands of the Crown held under trust by the Crown in public ownership for public benefit. The flow-on consequence of the Tribunal's determinations is that they must continue to be so held. As Mr. Graham has stated:

"Treaty claims are against the Crown so that it is for the Crown itself to negotiate settlements of them. However, the Crown would want to ensure that any transfer to Maori of any Crown-owned asset would not directly prejudice any third party, including the New Zealand public, since such further injustice would also be in breach of the Treaty" (Minister of Justice to NZ Fish & Game Council 17/8/92).


The Treaty is about a relationship between two parties. An unjustified granting of rights to one is at the expense of the other. To maintain a just balance of rights and obligations between the parties, the Tribunal's findings must be upheld.

In regard to re-establishing Ngai Tahu rangatiratanga the Tribunal appears to have gone beyond its own findings and jurisdiction in viewing pastoral leases and national parks as part of a settlement [24.5.1 & 24.5.2 above]. The Tribunal found that loss of rangatiratanga was confined to lack of reserves, mahinga kai, and eeling rights at Wairewa [2.12 at p 163-165]--

"In respect of mahinga kai the Tribunal found as follows:

(a) (i) that the Crown failed to make specific reserves to preserve and protect Ngai Tahu's mahinga kai; and
(ii) that the Crown failed to provide sufficient reserves to allow Ngai Tahu to participate in the developing economy.
As a result Ngai Tahu were deprived of their rangatiratanga guaranteed to them by article 2 of the Treaty.
(e) that the Crown failed to protect Ngai Tahu rangatiratanga under article 2 in that it granted eeling rights at Wairewa to Maori instead of to Ngai Tahu."


The reserves (for agricultural, pastoral or dairy farming), and mahinga kai sought by Ngai Tahu were well outside the high country in question. Therefore the Tribunal's comments under 24.5 are not, and cannot be, directionary on the Crown. In respect of the Tribunal's observation that restoration of rangatiratanga would seem unfulfilled were the return of some at least of these treasured natural features in national parks denied to Ngai Tahu, this contradicts their own findings that such lands were legally purchased by the Crown.

It is only findings of fact, and recommendations based on such findings, that the Crown is obliged to consider.

"Honesty of purpose calls for an honest effort to ascertain the facts and reach an honest conclusion." Richardson J in New Zealand Maori Council v Attorney-General. [1987] 1 NZLR at p 682



Question Two:
We note that the Treaty of Waitangi Act 1975 gives the Tribunal exclusive authority to determine the meaning and effect of the Treaty and to determine if the Crown has acted in breach of Treaty principles. If Government believes it has authority to independently determine the scope of Treaty breaches by the Crown would you please cite that authority.

Answer:
"In the case of the Ngai Tahu claim, the Crown has no need to independently determine the scope of Treaty breaches as the Tribunal has already detailed this in the Ngai Tahu report."

Commentary:
The Minister has side-stepped the question but confirms that the Crown's position relies on the detailed determinations of the Tribunal.



Question Three:
The Tribunal consistently concluded that the purpose of reservations were so that Ngai Tahu could develop side by side, and on at least an equal basis with new settlers, in agricultural, pastoral or dairy farming. The Tribunal also found that the Crown had a duty to protect principal food resource areas (our emphasis), as opposed to all possible areas. National parks, pastoral leases, and high country conservation lands were not principal mahinga kai and do not coincide with these considerations or with what Ngai Tahu asked to have reserved to them at the time of the land transactions. Please advise if Government differs from our reading of the Tribunal's report in this regard.

Answer:
"The Crown accepts in principle that insufficient reserves were set aside, that it failed to exclude certain lands from sale and that it thereby failed to protect mahinga kai. The Tribunal states at chapter 17.5.2 that:

"it was not only necessary for the Crown to protect the principal food resources areas, it was also the duty of the Crown to provide the tribe with extensive land so that it could adapt itself to the new pastoral and agricultural economy."


If the Crown were to limit itself to assisting the tribe to adapt to pastoralism and agriculture, upon which the entire economy of this country is no longer based, it could be in danger of breaching the Treaty. The tribe would once again be left without a realistic economic base. The Crown must come up with creative remedies that will not compound past Treaty breaches, nor create others. In an effort to do this, the Crown is attempting to put the tribe in a position where it can take care of its own people. However, as well as an economic base, the tribe has lost much of its mana because of the Crown's past actions. It is now up to the Crown to assist the tribe to regain its mana by restoring some form of rangatiratanga over the land. It is this desire which is behind the consideration of sharing title to conservation lands."

Commentary:
The Minister's reply does not contest the PANZ interpretation of the report in regard to principal food areas and desired reserves being outside present-day national parks, pastoral leases, and high country conservation lands.

The entire economy of New Zealand in 1848-53, when the Kemp and Murihiku purchases were negotiated, was not confined to pastoralism and agriculture. However it was reserves for these purposes that Ngai Tahu wanted set aside for them. Inclusion of public conservation lands in a settlement to provide the tribe with a "realistic economic base" is a base concern of many in the conservation and recreation movements. This is causing widespread scepticism at assurances that there is nothing to fear.

The contradictions of both government and Tribunal, while determining that Ngai Tahu had suffered "grievous economic loss," and advocating the return of non-economic conservation lands [24.5.5] to remedy that loss, raises the specture of new forms of economic activity. These may be inimical to the preservation and public use purposes of these areas. The prospect is of entry charges, tourism developments (e.g. Ngai Tahu already signed into joint venture for a Greenstone Valley monorail), and other developments that may directly conflict with continued free public entry and enjoyment. Mixed messages about purposes and intent from both Ngai Tahu representatives and the Government, as well illustrated by the Minister's reply, are fuelling this concern. Is economic development as well as restoration of 'mana' and 'rangatiratanga' intended? The latter considerations are invariably tied by Ngai Tahu and the Government to the return of public lands rather than state-owned enterprise lands. A sceptic could easily believe that mana and rangatiratanga cannot be restored by transferring title to highly productive farms and forests!

And there is the question of what is meant by mana and rangatiratanga? Some definitions:


Mana: authority, control, influence, prestige, power, psychic force.
Rangatiratanga (also te tino rangatiratanga): chieftainship: tribal control of tribal resources. Includes the holding of resources on a communal rather than individual basis.

(Source: Environmental Management and the Principles of the Treaty of Waitangi, Parliamentary Commissioner for the Environment, 1988):


The Second Article of the Treaty guarantees Maori unqualified exercise of their rangatiratanga over their lands, villages and all other treasures (translation of Maori version).

The Principles for Crown Action on the Treaty of Waitangi, Department of Justice 1989, sets out the Crown's interpretation of 'The Rangatiratanga Principle/The Principle of Self Management' as --

"The Second Article of the Treaty guarantees to iwi Maori the control and enjoyment of those resources and taonga which it is their wish to retain. The preservation of a resource base, restoration of iwi self management, and the active protection of taonga, both material and cultural, are necessary elements of the Crown's policy of recognising rangatiratanga" (our emphasis).


The Tribunal in its Ngai Tahu report observes [4.6.6 at p 231]

"In the Te Atiawa Report (1983) the Tribunal stressed that rangatiratanga and mana are inextricably related, and that rangatiratanga denotes the mana not only to possess what one owns but, and we emphasise this, to manage and control it in accordance with the preferences of the owner. The Tribunal thought the Maori text would have conveyed to Maori people that, amongst other things, they were to be protected not only in the possession of their fishing grounds (the subject matter of the Te Atiawa claim), but in the mana to control them in accordance with their own customs and having regard to their own cultural preferences. Clearly the same understanding would have been held in relation to land. We continue to believe that this is the proper interpretation to be given to the Treaty, because the Maori text is clearly persuasive in advancing this view, and because the English text, referring to "full exclusive and undisturbed possession" also permits it."


Implications arising from application of the rangatiratanga principle become apparent from Taking Into Account the Principles of the Treaty of Waitangi, Ministry for the Environment, 1993--

"The use of the term "rangatiratanga" in the context of the Treaty denotes an institutional authority to control the exercise of a range of user rights in resources, including conditions of access, use and conservation management. Rangatiratanga incorporates the right to make, alter and enforce decisions pertaining to how a resource is to be used and managed, and by whom."

"In speaking with consent authorities Maori speak of their interest in natural resources as a right of ownership of the resources. Although generally understood to mean legal title, the English concept of "ownership" encompasses rights of possession, use, and management of natural resources and the right to derive benefits of capital and income from those resources. This range of user rights is also characteristic of rangatiratanga."


Translated into application over public lands, 'rangatiratanga' means replacement by one-sector ownership, control, use and benefit according to their own preferences. By definition, other philosophies of management and users are liable to be excluded.
This is completely at odds with the founding principles of national parks and other protected areas.

PANZ believes that in cases where the Tribunal may find that parts of the public conservation estate were unlawfully taken from Maori, there should be consideration of the use of other assets, as well as return of the land in question, to arrive at equitable settlements. In the case of the Ngai Tahu land claim however this question does not arise--the Tribunal's findings of lawful purchase by the Crown means that Ngai Tahu did not wish to retain these particular lands. Therefore there is no grievance under Article Two of the Treaty for the Crown to answer.

PANZ is aware of the view of the Tribunal, at 4.6.6 at p 231

"Generations of Ngai Tahu have suffered as a consequence of Crown Treaty breaches. Virtually all the valuable land has long since passed into private hands. Irreparable damage has been done to Ngai Tahu mahinga kai resources. And so a fair, just and practical settlement is likely to be based on a mixed set of remedies which reflect not only the nature and extent of the grievances but present day realities."


The question of which Crown resources can and should be used must be the central issue. The Tribunal's findings, and considerations of the Crown's legal responsibilities to the whole community ("not to create other Treaty breaches"), should narrow down the choice of assets to those of the state-owned enterprises, cash, or both.


Question Four:
Please advise on what basis national parks, etc., and pastoral leases appear to be subject to preferential consideration for settlement of Ngai Tahu grievances ahead of use of SOE holdings (e.g., Landcorp, Forestcorp) for such purposes.

Answer:
"National parks and pastoral leases are not subject to preferential consideration for settlement of Ngai Tahu's claim. They are merely two of the options that have been discussed by the parties. Other options, including SOEs, are also being considered."

Commentary:
Mr. Graham replied to us on 19 February 1993. On 23 February Government introduced the Treaty of Waitangi Amendment Bill. This provides that the Waitangi Tribunal shall not recommend to the Crown that it "acquire ownership of any land or interest in land held by any person."

'Person' is defined by the Acts Interpretation Act 1924 (s 4)--"includes a corporation sole, and also a body of persons, whether corporate or unincorporate."

It appears that SOEs, being corporations, are within the meaning of 'person.' In that case the Tribunal will only be able to recommend the return of public lands, the conservation estate, for settlement of claims. The Bill may signal Government's intentions for settlement with Ngai Tahu.

Question Five:
We believe that, unlike SOE assets, national parks, etc., are not government properties able to be divested by government decision alone. The conservation estate is held in trust by the government of the day for the benefit of present and future generations (C.f. s 4 National Parks Act 1980). The whole scheme of that Act is designed to maintain such areas as public property as well as retain full Crown jurisdiction and political accountability for management. On what basis of statutory or other authority have you and other Ministers of the Crown publicly stated that 'title' or 'joint-title' are being considered for conveyance to Ngai Tahu?

Answer:
"Section 4 of the Conservation Act 1987 states that that Act shall be so interpreted and administered as to give effect to the principles of the Treaty. As you are aware neither joint title nor co-management will affect existing public access to, or conservation values over, the conservation estate. However, the Government recognises the legitimate right of all New Zealanders to participate in conservation decisions, and so has undertaken that if any alterations in the management of our conservation estate were envisaged to discuss this with conservation organisations."

Commentary:
There are no provisions for 'joint title' under the Conservation Act. There are provisions under s 60F for certificates of title in the name of the Queen. There are no equivalent provisions for national parks and reserves. It appears that 'joint title' could only be created by legislative amendment.

It may be possible to transfer title in total from the Queen to Ngai Tahu once a title is created in her name. In the view of PANZ it is both unneccessary and highly dangerous to have certificates of title issued over public lands. Such lands do not require titles. Only alienated or private lands need titles to establish who the true owner is. In the absence of such proof the Crown enjoys 'eminent domain' over all lands.
Disposal of public lands requires more than discusion with selected 'conservation groups.' The Minister's statement is hardly recognition of "the legitimate right of all New Zealanders to participate in (so called) conservation decisions."



March 1993. 'Public Access', No. 2

Mount Hikurangi


In the last issue we commented on the vesting of ownership of approximately 5000ha of the Raukumara Forest Park in the East Cape to Ngati Porou. This became Maori freehold. In return a conservation covenant over that area and part of the adjoining Pakihiroa Station was entered into.
The Hikurangi deal did not arise out of a claim before the Waitangi Tribunal but was entered into to "give effect to the principles of the Treaty of Waitangi" in terms of s 4 of the Conservation Act.

The Maori Land Court agreed to the vesting of ownership in January 1991. DOC officer Andy Chapman was reported as saying in The Gisborne Herald on 6/4/91 --"the covenant has received the Maori Land Court stamp meaning it is now a legal document. It was an agreement between Ngati Porou runanga as representatives of their tribe and the Department of Conservation representing the Crown."

The following is the text from part of the official pamphlet heralding this as a 'legacy to New Zealand'--

Message from the Minister of Conservation

" 'Hikurangi te maunga, Waiapu te awa, Ngati Porou te iwi.' (Hikurangi is the mountain, Waiapu is the river, Ngati Porou are the people).

The revestment of Mt Hikurangi with the people of Ngati Porou, heralds a most significant occasion in the development of New Zealand's heritage. As the first place in the southern hemisphere to see the sun, the mountain has a special importance for all New Zealanders, but particularly so for Ngati Porou for whom Mt Hikurangi represents their unifying spiritual and cultural identity.

This special relationship has long been given life through the waiata, haka, whakatauki and karakia of Ngati Porou. Now the revestment gives life once again to the mana of the mountain as it is returned to its rightful place with the tangata whenua.

Whilst the cultural and spiritual significance to the people of Ngati Porou cannot be understated, a clear signal has been given to all peoples of New Zealand, that it was the spirit of partnership between Ngati Porou and the Crown, through the Department of Conservation, Te Papa Atawhai, which allowed this to happen.
This partnership resulted in the signing of an agreement which enabled the mana of Mt Hikurangi, and its spiritual and cultural integrity, to be revested with the people of Ngati Porou through return of the mountains ownership to them.

The agreement also provided for the outstanding ecological values of the area to be fully protected in perpetuity, through the placement of a conservation covenant over the entire mountain, under the joint management of the Department of Conservation and Te Runanga O Ngati Porou.

The right of access to experience Mt Hikurangi's special values, has been secured for all future generations of New Zealanders, through the establishment of a walkway onto its slopes.

The agreement that has been reached exemplifies the tremendous value of using honest and open partnership as a means to resolve outstanding issues and concerns, as a way in which all parties involved can benefit, and which truly embodies all the essential principals [principles] of the Treaty of Waitangi. This perhaps, is Mt Hikurangi's legacy to New Zealand.

The Honourable Denis Marshall Minister of Conservation"

Mt Hikurangi -- The Agreement

"The terms of the Agreement reached between Te Runanga O Te Ngati Porou and the Department of Conservation with regard to the future ownership and management of Mt Hikurangi are:

Maori Land Court Judge, James Rota approved the revestment of ownership of Mt Hikurangi in Te Runanga O Ngati Porou as trustees in perpetuity for their iwi, contingent upon the terms of the above agreement."

Note: In addition to the Walkway provision the conservation covenant provides for the public's recreational use and enjoyment of Hikurangi only to the extent of being consistent with the above 'key objectives.'

It appears that the agreement between the Crown and Ngati Porou has 'fallen over' (see Public Notice below).

In view of what appears to be a clear breach of the terms of the agreement, PANZ asked the Regional Conservator of DOC what official efforts were made to ensure compliance with the deed. He replied that although a "legally binding agreement" it "has not yet been fully implemented." Access is "at the pleasure of Ngati Porou."

The Hikurangi model fits with the kind of arrangements that Doug Graham and Denis Marshall have been talking about for Ngai Tahu and other settlements. This is an early indication of the fallacy behind Government assurances that there is nothing to fear.




Those who have been expressing concern about the wisdom of the Government's approach have had to suffer put-downs such as this--

"Some normally sensible and progressive conservationists seemed in danger of loosing their perspective over this issue and had departed from their normal highly analytical and constructive approach to launch public attacks which distanced them even further from Maori claimants.

A few conservationists seemed to prefer confrontational tactics to the politics of quiet persuasion, getting alongside (Ngai Tahu) and discussing differences in a rational manner. Such conservationists were in danger of being seen as the last bastion of conservatism." Denis Marshall, Conservation Review No 13 September 1992



Waitangi Tribunal's findings on Ngai Tahu land claims

(Source: Ngai Tahu Report 1991

Western boundaries


Kemp purchase western boundary
[2.4 at p 53]
"The claimants argued that Ngai Tahu agreed to sell only the plains to the foothills, and not over to the west coast."

[2.4, p 62]
"The Crown refuted this argument..."

[2.4 at p 63]
"...we [the Tribunal] accepted the Crown's view that in the several days of discussions which preceded the actual signing of the deed, the interior was sufficiently discussed to have been included in the sale."

[2.4 at p 63]
"We found it difficult to conclude that Ngai Tahu would have requested a coast to coast reservation, one that appears to be linked to their trails to Te Tai Poutini, where pounamu was obtained, if the purchase boundary only extended to the Canterbury foothills."

[2.4 at p 65]
"However, although all Poutini Ngai Tahu may not have included the west coast in the Kemp purchase, the tribunal came to the conclusion the the Ngai Tahu rangatira who were parties to the Kemp deed included all their rights between the Wairau purchase, starting probably at the Hurunui, down to the Otakau purchase and over to the west coast. The tribunal therefore did not uphold the claimants' grievance no 4(a) that on the matter of boundaries, the Crown enforced an interpretation which had not been agreed to by Ngai Tahu in respect of the western boundary."

[2.6 at p 102]
"...the claimants concluded that a large portion of the block, lying west of the Waiau River, which DOSLI estimated at over 2.8 million acres, was included in the purchase against Ngai Tahu wishes."

[2.6 at p 104]
"After weighing all the evidence the tribunal found that the land west of the Wairau was not wrongfully included in the sale. Accordingly the claimants' grievance no 6 was not sustained."

Kemp western boundary
[8.11.5 at P 516-517]
The claim of Ngai Tahu regarding the western boundary was not dismissed lightly. However after a full, frank and lengthy discussion the tribunal finds that it does not uphold the claimants' grievance no 4(a), that on the matter of boundaries the Crown enforced an interpretation which had not been agreed to by Ngai Tahu in respect of the western boundary."

Land west of Waiau River
[10.6.18 at p 632-633]
We find thar the grievance that the land west of the Waiau was wrongfully included in the sale cannot be sustained. In coming to this conclusion we have carefully weighed the evidence of the three Ngai Tahu chiefs who nearly 30 years after the event testified to this effect. Not surprisingly after so great a lapse in time their recollection of events is defective, seriously so, in a number of material respects. Nor are they supported by any other Ngai Tahu witness before the commission. The claims that the southern Murihiku people were not consulted or parties to the deed have not been established. It was not, as was suggested, something done only by Otakou people but included principal Murihiku rangatira as well as many others. The deed in Maori was read out before it was agreed to and after protracted debate. It clearly included all the land west of the Waiau up to the northern border referred to in the deed, and clearly shown on the deed map. It seems apparent that from the outset of discussions between Mantell and the leading Ngai Tahu chiefs, a sale across to the west coast was contemplated. Although not definitive, the fact that Te Au and Taiaroa each made requests for reserves on the west coast is consistent with, and serves to reinforce the view, that Ngai Tahu were intending to sell across to the west coast. We recall the Crown's criticism that this claim was not publicly raised until the Smith-Nairn commission hearings some 27 years after the event, and since then has not again been raised until this tribunal began sitting. For the reasons indicated, we find that the land west of the Waiau was not wrongfully included in the sale.

 

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