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November 1994. 'Public Access', No. 5
Strenuous efforts by PANZ and
other non-government organisations (NGOs), over many months, has
forced DOC to finally produce a response to matters raised in
the PANZ monograph entitled The Principle of 'Partnership' and
the Treaty of Waitangi. The monograph concluded that there was
no basis in law for DOC to be pursuing 'partnership' policies
with iwi Maori and that the department is incorrectly implementing
its responsibilities under section 4 of the Conservation Act,
which are "to give effect to the principles of the Treaty
of Waitangi".
In September senior staff of DOC, and NGOs, met to discuss the
issue, but with PANZ absent. NGOs were concerned that DOC should
have paid the monograph author's fare to Wellington; something
PANZ was unable to afford. As it transpired DOC did not produce
a written response to the monograph as claimed, instead they replied
to a separate letter from PANZ which raised only some of the issues
covered by the monograph. Author Bruce Mason produced a critique
of DOC's response for circulation to the meeting in his absence.
In a letter of 22 December 1993 to the Director-General of Conservation
DOC was asked by PANZ, among other matters--
To cite the statutory, case law, and constitutional basis for determining--
(1) That a partnership exists or should exist between DOC and iwi Maori in the ownership or management of lands and natural resources vested in DOC ;
(2) The nature of such a 'partnership';
(3) As the manager in trust for public lands, that you have power to take steps to divest management or ownership of public resources via partnerships with iwi Maori;
(4) What is the mission of the Department, and the constitutional and legal basis for this?
After resubmitting the letter three times, DOC's belated response
of 1 September 1994 states that it is an answer in general terms.
It does not address most of the critical detail contained in the
PANZ monograph and avoids major areas such as discussion of the
1987 SOE lands case (which introduced the concept of an (undefined)
'partnership' between Maori and the Crown into our common law),
the non-implementation of Government's standing policy 'Principles
for Crown Action on the Treaty of Waitangi', application of Treaty
principles within the department, and the conclusions of the monograph.
Five key issues emerge from the DOC response--
Issue 1
The context of the SOE 'Lands case' versus that of the Conservation
Act
DOC acknowledged that the requirements of section 4 of the Conservation
Act 1987 are weaker than the directive in the State-owned Enterprises
Act 1986 (section 8) which resulted from the Lands case. They
also acknowledged that the meaning of the 'principles of the Treaty'
will depend on the context in each case.
Such admission undermines the direct application by DOC of principles
derived from the Lands case. As the context of each case and statute
is critical to understanding Treaty principles, DOC cannot safely
infer from the Lands case that there is a generic principle of
'partnership' affecting its functions and the resources administered
by the department.
Issue 2
Partnership as a 'short-hand' categorisation
DOC has recently referred to 'partnership' as "short-hand"
for the observations of the Judges in the Lands case who held
that the Treaty signified a partnership between pakeha and Maori.
PANZ's analysis of the Lands case reveals that the Judges did
not state that partnership was 'short-hand' for the relationship.
Rather it is DOC's interpretation, not that of the Courts, that
"categorises" the relationship as one of 'partnership'.
In the Lands case the Judges defined the relationship as requiring
reasonable action and good faith between the parties. Later, in
the Forest case, the relationship was deemed to be founded on
"reasonableness, mutual cooperation and trust".
The Judges did not state emphatically that a partnership existed.
They said that the relationship signified and inferred, something
in the nature of a partnership. Elsewhere in the Lands case Casey
J said that it was a relationship akin to partnership.
Issue 3
Partnership an "overarching principle"?
DOC state that 'partnership' is an "overarching principle"
derived from the Treaty, and cites the Broadcasting assets case
as authority. However in that case their Lordships categorised
the principles of the Treaty as 'underlying' mutual obligations
and responsibilities, not as 'overarching' as claimed by DOC.
The only reference to an 'overarching principle' in relevant cases
is that by Richardson J in the Lands case who identified 'a solemn
compact' as "the overarching principle", not 'partnership'.
Issue 4
No automatic equality in the relationship
In a major concession, the DOC opinion, without saying so, concedes
the central thesis of PANZ's concerns over the Departments 'partnership'
approach. The department acknowledged from the Forests and Coal
cases, which occurred subsequent to the Lands case, that "with
respect to claims to resources" the Courts did not determine
that this "automatically require[s] equal shares between
the parties". This admission is an acknowledgement of the
central flaw in moves towards divesting or 'sharing' ownership
or management of public resources with iwi. Such an intent, reinforced
by erroneous statements by the Minister of Conservation that Maori
are "equal Treaty partners" with the Crown, has no lawful
basis in the management of public resources.
Issue 5
DOC as law maker?
DOC's reply records "the potential for judicial activism
in other areas of law, in particular the approach to the application
of Treaty principles", earlier noting "there may be
occasions in which there is a moral although not a legal duty
to ensure adherence to the spirit of the Treaty by acting in accordance
with its principles".
This raises the issue, is DOC to pursue 'moral' or 'politically
correct' duties by anticipating developments in judicial law making,
or follow established law? To pursue the former course, as the
Department appears to be doing, conflicts with the Department's
mission which "is found in the various Acts which it administers
and which confer functions upon it".
Conclusions
The DOC response confirms the basis for the central criticism
contained in "The Principle of 'Partnership' and the Treaty
of Waitangi" --that DOC is extending the determinations of
the Courts, under a mythology of 'partnership', well beyond what
the Courts have defined.
There is an inherent and inescapable connotation of equality between
the 'partners' that make the use of the term inappropriate in
the context of the Treaty and Treaty principles. In common and
departmental parlance the concept of 'partnership is ill-defined,
confused, and misleading--dangerously so in regard to the Crown's
obligations to all citizens.
The PANZ critique concluded that the danger is manifest in DOC
policies for divesting ownership and for 'shared' and 'co-management'
of public resources with iwi under an assumption that an equality
of partnership exists. PANZ contends that such policies have no
basis in judicial or statutory law.
From this drawn-out, excruciating contest, it appears that DOC
is rethinking its approach to its relationship with iwi Maori.
DOC's September newsletter for NGOs records that DOC's 'Partnership
Plan Steering Committee' was [re]considering the name for the
plan and concluded that "it should reflect the goal of cooperation"
and the context of the DOC/iwi relationship. "The whole purpose
of the document was to seek to establish a cooperative relationship
between DOC and iwi based on the Treaty principles of good faith,
reasonableness, mutual cooperation and trust".
PANZ welcomes such a development as it reflects the Courts' interpretations
of Treaty principles, and does not necessarily lessen the rights
of other New Zealanders to be consulted over, and to influence,
the control and management of public lands.
November 1994. 'Public Access', No. 5
We have previously reported
that the Parliamentary Commissioner for the Environment initiated
an "investigation into Treaty negotiations and the involvement
of affected parties". This was as a result of increasing
complaints about the process employed by Government in its dealings
with public lands.
PANZ has concerns over the conduct of the inquiry. The Commissioner's
initial terms of reference were changed to an "investigation
into procedures for maintaining the quality of the environment
in the settlement of Treaty claims". This is a different,
and much narrower focus from that embarked upon. Issues of public
patrimony over public lands, Government by-passing the Waitangi
Tribunal, and the validity of Government responses to claims,
being the prime matters at issue, were avoided by the inquiry.
On 6 September Commissioner Helen Hughes reported the findings
of her inquiry. PANZ made extensive submissions on the basis of
the initial terms of reference. Our submissions have been extensively
referred to in her report, but only within the confines of the
new terms of reference.
The central conclusion reached in the report is that the public
is ill-informed and 'uneducated' about settlement of Treaty claims.
In an accompanying press release Mrs. Hughes "hope[s] that
my independent report...will further assist the public to understand
the stages and the procedures of the Treaty settlement process".
The presumption is that if we, the public, were better informed
(i.e., less ignorant) we would be more accommodating of the process,
and of the notion that all Treaty claims/grievances by Maori are
valid. The Commissioner's view is a continuation of a position
that has been promoted by her office over several years. The narrowing
of the terms of reference meant avoidance of critical examination
of such notions.
PANZ believes that it is well informed about the validity or otherwise,
and the Crown's conduct, of the very large and contentious Ngai
Tahu lands claim. The Commissioner, while identifying the validation
of claims as a necessary step, does not comment on the propriety
of the Crown alone deciding on its culpability under the Treaty.
There is no recommendation that all claims be assessed by the
independent Waitangi Tribunal. Rather the Commissioner comments--
"In some cases the Crown may not accept a claim as involving a breach of Treaty obligations. But as a matter of good government, as a means of acknowledging the relationship of the tangata whenua with the resource or taonga in issue and of recognising mana, it may nevertheless take action on a 'without prejudice' basis to acknowledge that relationship rather than to give redress for an alleged Treaty breach. In other cases, where the Crown acknowledges a wrong, though without formal validation of a claim, that acceptance will provide a compelling basis on which to proceed to settlement" (our emphasis).
It appears that the Parliamentary Commissioner is promoting social
agendas that have little to do with taking "full and balanced
account" of the principles of the Treaty. This is one of
the purposes of the Environment Act under which the Commissioner
operates. In the absence of proven Treaty breaches there are other
matters of 'good government', such as the principle of equality
between citizens, derived from Article III of the Treaty, which
deserve her attention.
The Commissioner's confusion of issues is demonstrated by a section
headed 'Validation of Treaty claims' which contains nothing about
the subject, only about the environmental effects of breaches
of the Treaty.
She does however identify the need for greater public consultation
in the claims settlement process, but this is confined to the
public providing Government with 'environmental information'.
The public consultation "may also...provide a basis for public
education on Maori values and culture".
Mrs. Hughes states that, in relation to the Ngai Tahu land claim,
"there is a danger in the negotiation phase that claimants
and their respective hapu or iwi will be insufficiently resourced
to respond to well organised interest groups". PANZ has a
very different perception as to the availability of resources,
like money and well paid consultants. With few resources behind
us, PANZ is nevertheless proving to be an effective advocate.
November 1994. 'Public Access', No. 5
There have been repeated calls
from PANZ and other groups for a meaningful public consultation
process on the use of Crown and public lands in Treaty claims
settlements.
Earlier this year PANZ submitted to the Minister of Justice a
proposed three-step process, based on a model conceived at a meeting
at Queenstown to consider the Greenstone Valley issue. [An abbreviated
version of our proposal is reproduced opposite.] We believe that
the three steps are essential if the public is to be satisfied
that there are justifiable grounds for alienating public lands,
that all alternatives have been properly evaluated, and that a
durable settlement will result.
November 1994. 'Public Access', No. 5
Amnesia is apparently alive
and well in Wellington. In 1992, Government purchased three high
country stations for "possible" future settlement of
Ngai Tahu land claims. Cabinet papers confirm the point. However
recent Ministerial statements have consistently dropped the "possible"
from the equation. Yesterday's commitments for (meaningful) public
consultation over the future of the properties also appear to
be yesterday's promises. "Some station land will be retained"
reads The Southland Times on October 6, 1994.
A spokesman for Conservation Minister Denis Marshall was reported
as saying that the Wakatipu high country stations are destined
to be owned by Ngai Tahu, but, some areas with a high conservation
value will be retained as public land.
Determining which areas go into the conservation estate has been
delayed because a 'productive values report', due out in late
July, has only just been completed. The spokesman for Mr. Marshall
said a tenure review was expected to start in August [1994?].
It would involve the public and determine which areas of the station
were freehold and could go to Ngai Tahu and which areas were retained
as public land.
Otago Fish and Game Council manager Niall Watson reacted critically
to the announcement saying that a properly conducted tenure review
would mean large chunks of the stations would go into the conservation
estate. "When you start looking at the values, you quickly
realise most of the properties should go into the conservation
estate. The fact the Government bought them with the intention
of possibly using them for settlement [of] claims is the Government's
mistake. They must not bias the outcome just because they mucked
up in the first place." "The Government has got itself
into this mess because it made a hasty decision, obviously without
researching the issue properly. We're happy to see the Government
take it's time", Mr. Watson said.
A spokeswoman for Treaty Negotiations Minister Doug Graham was
reported as saying that the stations were specifically purchased
for use in a settlement with Ngai Tahu and all land, bar that
which went into the conservation estate, would go to them.
Meanwhile the Government has stated that it intends to make an
offer of partial settlement to Ngai Tahu within the next few weeks.
It is to be hoped that any offers involving the Greenstone Valley
area will be deferred until after the promised public consultation
process is complete.
November 1994. 'Public Access', No. 5
In response to requests from
supporters, PANZ has launched a petition on the Greenstone Valley
issue. This is different from an earlier, independent, petition
which opposed possible monorail or roading development in the
valley. That was supported by almost 7000 people.
The PANZ petition is concerned about use of the area for claims
settlement and reads--
"We ask that the Greenstone, Elfin Bay and Routeburn Crown lands near Queenstown are not used in settlement of land claims by Ngai Tahu.
INSTEAD we ask that these mountain lands be added to the conservation estate for the benefit of all New Zealanders, and
ALTERNATIVE Government assets, such as Landcorp farms, be used for settlement of proven grievances by Ngai Tahu."
PANZ has not vigorously promoted the petition because to do so,
with the object of obtaining large numbers of signatures, would
have distracted us from other initiatives underway. We hope to
have the petition presented to Parliament before the Christmas
recess. It should be referred to a select committee for consideration
which will provide an opportunity for us to present evidence to
MPs on the outstanding recreation and conservation values of the
area and on the alternatives, like the 'SOE option'.
November 1994. 'Public Access', No. 5
In the 1994 annual report of the Ngai Tahu Maori Trust Board, chairman Sir Tipene O'Regan made a scathing attack on PANZ--
"During the year Ngai Tahu experienced further hostility being orchestrated and sustained by conservation organisations, notably Public Access New Zealand. This organisations was formed to defeat Ngai Tahu's mana whenua aspirations in the South Island and has opposed just about every arrangement we propose to the Crown that would give honourable effect to the findings of the Waitangi Tribunal. They have so effectively frightened the Crown that they are now virtually a party to the negotiations, and the Tribunal Report and its findings on a number of key matters now seems destined to be completely frustrated. The most regrettable dimension of this is how quickly the Crown has deserted the principles of the Treaty of Waitangi and caved in to the Green lobby. Ngai Tahu (and other iwi) now face a portfolio of Crown policy opposing iwi aspirations in respect of whales, the conserved estate, the coastline, traditional fisheries/mahinga kai, lakes, rivers, mountains, (and for us) pounamu. On every front, whether or not land or resources are within the "Conserved Estate", we are now facing attack from conservation groups and individuals claiming to represent the public interest. There are strong elements of racism within these attacks although such suggestions are hotly debated and piously denied".
For many months PANZ and kindred organisations have been subjected
to accusations of "racism" by Sir Tipene and even referred
to by him as "the Green Group SS" (The Press, June 11,
1993).
Since our inception we have consistently focused on public access
and the retention of publicly owned land for all New Zealanders,
irrespective of genealogy. If that is perceived as 'racist', then
are happy to wear that label. Those who spit out such accusations
should invest in a full-length mirror and a good dictionary. They
need to read out loud definitions of 'racism' while looking long
and hard at themselves.
Sir Tipene's statements are factually incorrect on these grounds--
PANZ publicly responded to Sir
Tipene's accusations by describing them as "mischievous distortion"
and as "insulting and factually incorrect" (Otago Daily
Times, 27 October 1992). Spokesperson Bruce Mason, challenged
Sir Tipene to prove the claims he made in his chairman's report.
"It's so easy for (Sir Tipene) to make such claims but he
hasn't produced any evidence. He's not so much discrediting us
as discrediting himself."
PANZ has consistently advocated a fair and honourable settlement
of proven Treaty grievances. We want to ensure the future accessibility
of public lands for the public at large as well as seeing that
there are settlements in accord with the findings in fact of the
Waitangi Tribunal.
In the case of the Ngai Tahu claims the Tribunal had found there
was no proven grievance against the Crown over the three Queenstown
stations. The Crown had lawfully purchased the South Island high
country.
PANZ does not have a blanket objection to the use of public lands
in settling proven grievances but believes the public should be
consulted on specific proposals.
November 1994. 'Public Access', No. 5
Dr. Mutu is a Maori studies
academic, member of the New Zealand Conservation Authority, and
served on the Board of Inquiry which reviewed Government's draft
New Zealand Coastal Policy Statement. She was also a referee for
the Parliamentary Commissioner for the Environment's recent review
of Environmental information and the adequacy of Treaty settlement
procedures.
Dr. Mutu presented a paper entitled Maori Participation and Input
into Resource Management in Aotearoa/New Zealand at the Ecopolitics
VIII Conference held at Lincoln University on 9 July 1994.
Of particular concern to PANZ is a statement on page 13 of her
paper that--
"...a further rather insidious factor that has crept into this debate (use of public land in Treaty settlements). Some lobby groups with good access to the media and government are using the very successful environmental lobby to promote notions of racial superiority of Pakeha New Zealanders in respect to managing these lands. A spokesman of one of these groups was publicly rebuked by the chairman of the Board of Inquiry (on National Coastal Policy) for demonstrating such attitudes to the Board's Maori members during the (public) hearings".
As reported in Public Access No. 4 (May 1994), Bruce Mason appeared
before the Board of Inquiry on behalf of Public Access New Zealand.
We reported our concerns over the conduct of the Board of Inquiry
in relation to the hearing of the PANZ submission--
"PANZ representative Bruce Mason, after raising doubts as to the validity of a concept 'partnership' between Maori and the Crown as implied in the policy, was lectured by two Board members on the meaning of the Treaty. He was told not to interrupt by the chair, despite this supposing to be an inquiry into community views rather than a platform for Board members to advance their own. The content of their dissertations were highly challengeable, but Bruce was not permitted to do so.
"The chairman, Judge Arnold Turner, also asked Bruce three times "who is going to pay?", in relation to enhancing public access, despite this being beyond the brief of the inquiry, and that enhancement of access is a duty under the Resource Management Act. Bruce's impression was that it was an access-hostile environment. The chairman terminated the PANZ submission by saying that "he had heard quite enough from Mr. Mason"--a feeling that was reciprocated, but not verbalised! "
As a result of us publishing the above there has been correspondence
from Judge Turner who takes issue with PANZ's stance on the coastal
policy, but did not dispute our account of the conduct of the
inquiry in relation to the hearing of PANZ's submission.
PANZ wrote to Dr. Mutu in August, asking her if Mason is the person
she referred to and to enlighten PANZ as to--
No response has been received.
A 'sea of guilt'
Other intemperate reactions to our advocacy often reflect the
confused, guilt-ridden name-calling that has characterised public
debate over Maori related matters for the last decade. PANZ believes
that the debate needs to mature beyond cliches and nonsensical
accusations of "racism" against any who dare to question
the Crown's handling of claim settlements--especially those involving
publicly owned lands. Such accusations may fit some, but that
does not mean that they fit everyone with an understanding:
(a) of the nature of the Waitangi Tribunal's findings, and
(b) the Government's unprincipled use of public lands in settlement of proven, unrelated grievances while keeping in reserve for future sale its commercial assets.
Why should any New Zealander, Maori, non-Maori, claimant or non-claimant,
believe that Government is acting with any more regard for justice
and the welfare of its citizens than in any other business of
Government?
Groups like PANZ who are concerned about correcting the inequities
of the past while not creating fresh injustices, are not about
to disengage their critical faculties in a sea of guilt. Why should
we believe that the Crown/Executive Government can be trusted
to implement the principles of the Treaty of Waitangi any more
than it could be trusted to do so last century?
All New Zealanders have rights and obligations stemming from the
Treaty, including a right under Article III to be treated justly
and equally. Governments, for their own reasons of expediency,
from time to time see things differently. It would be a very sorry
day for New Zealand if public watch-dogs are bludgeoned into silence
by adopting an acquiescent, uncritical approach preferred by some
critics.
November 1994. 'Public Access', No. 5
PANZ has produced a 65 page
report entitled 'Landcorp farms and the SOE option for Ngai Tahu
claims settlement' which has been sent to the Minister of Justice
and the Ngai Tahu Maori Trust Board. PANZ hopes to put "the
SOE option" back on the claim settlement agenda.
Our investigation of South Island state-owned enterprise lands
revealed that government has massive commercial assets at its
disposal and is able to avoid using public lands in the claims
settlement process. The underlying issue for Government is the
importance it attaches to financial considerations ahead of public
concerns for continuing public ownership, protection and public
access to public and Crown land.
It is also a test of Government's commitment to give proper effect
to the principles of the Treaty of Waitangi. Reluctance to use
SOE assets in claims settlement has to be contrasted with Government's
ideological push towards privatising as many state assets as possible.
The investigation revealed 97 Landcorp farms totalling 78,300
hectares, in Canterbury, Otago, and Southland, within the Ngai
Tahu rohe or tribal area Several of these were found to be within
areas not awarded to Ngai Tahu at the time of land sales to the
Crown last century.
PANZ has long considered that state commercial assets have the
potential to provide the most suitable basis for Ngai Tahu to
re-establish an economic base. Conversely we believe that there
is no necessity to use public and Crown lands such as the Greenstone
valley for settlement of proven claims by Ngai Tahu.
PANZ believes that the mountainous Greenstone-Routeburn area is
greatly different, and hundreds of kilometres distant, from the
highly productive farm and agricultural lands denied to Ngai Tahu
elsewhere in the South Island. Whereas the Waitangi Tribunal validated
Ngai Tahu claims over highly productive coastal and low country,
their claim over the high country, including the Greenstone Valley,
was roundly dismissed.
What PANZ is asking for is consistent with Ngai Tahu's statement
of claim before the Waitangi Tribunal that any lands allocated
to them should be representative of the land lost in both character
and geographic distribution.
To proceed with a contentious and divisive decision to allocate
the Greenstone valley area to a private developer, in the form
of Ngai Tahu, would most likely result in on-going acrimony. That
would defeat a principle purpose of Treaty claim settlements--the
durable resolution of grievances.
The report concludes that the SOE resource is so vast and well
distributed throughout the South Island, relative to proven claims,
that there is no necessity to use unrelated public and Crown lands
such as the Greenstone valley and public reserves.
The only public reaction to the report so far has been from Ngai
Tahu chief executive Sid Ashton who says that "we are very
interested in the Landcorp farms but we want the Greenstone valley
as well" (Southland Times, 12 November 1994).
The SOE option
Landcorp Farming Limited
Most properties are ideally suited for settlement of proven Ngai
Tahu claims, both in character and geographic distribution. Some
are within the areas of 'reserves not awarded' to the tribe. These
include the Mt. Parnassus and Tiromoana Stations in North Canterbury.
These properties are either in or close to the pastoral lands
refused to Ngai Tuahuriri, centred on Motunau and Hurunui. In
addition, Landcorp's Eyrewell Station and Langstone Farm are within
the Waimakariri Block not awarded to Ngai Tahu. Many other farms
are in the general coastal/lowland localities where insufficient
lands were awarded to Ngai Tahu (e.g., Ealing Pastures, Seacliff,
Orokonui, Akatore Creek, Waitapeka, Dawson Downs). Other lands
are highly productive and of similar character to those not awarded.
There is a vast array of highly productive farms in the Te Anau-Manapouri
basin. These are in a highly scenic area bordering the World Heritage
Fiordland National Park. In addition to farming, proximity to
two tourist towns at the entrance to the park creates major potential
for tourism development.
Landcorp Investments Limited
1345 properties are held by this Landcorp subsidiary, including
several large rural properties potentially suitable for claims
settlement.
Crown Forests
Approximately 19,000 hectares of Crown exotic forests are administered
by the New Zealand Forestry Corporation, on behalf of the government
(Treasury), through a contractor, Resource Management New Zealand
Limited. Unlike other former State Forests, these forests have
not been sold or had Crown Forestry Licences issued. PANZ has
been advised they have been held for possible settlement with
Ngai Tahu. The forests are the Naseby, Herbert, Silverpeaks, Raincliff
(Timaru), and Geraldine forests. With the exception of Naseby,
these forests are in the general localities of 'reserves not awarded'
to Ngai Tahu.
November 1994. Public Access, No. 5
(1) Crown formulates resource information paper for public release
and comment.
Resources to be reviewed include--
(a) The grievance(s) lodged before the Waitangi Tribunal.
(b) The Tribunal's findings of fact on the claim.
(c) The Tribunal's recommendations if any.
(d) An explanation from the Crown why it accepts or doesn't accept the recommendations of the Tribunal and why the lands in question are proposed for settlement of a claim.
(e) An explanation why the use of other Crown assets is inappropriate for settlement of particular claims.
(2) Crown to publish a paper with the main options available for
settlement of the claim.
The options to range from--
(a) Allowing a future owner/occupier to have maximum freedom of land use to
(b) Retaining or allocating significant areas in public ownership/or with public constraints over use
--and all other options in between.
(Steps one and two being the main opportunity for public comment and input).
(3) When negotiations between the Crown and the claimant have
arrived at an "in principle" agreement, this to be published
for public submission so that the Crown is assisted in arriving
at the Crown's final negotiation position.
Implementation
Dependent on the status of the area, either the local Conservation
Board or the Commissioner of Crown Lands would be the public-input
facilitating agency on behalf of the Crown. Other agencies, e.g.,
DOC, Landcorp, Justice Department would be responsible for preparing
the resource information.
Otago University
Dunedin
Friday 24 June 1994
(delivered on Mr Graham's behalf by Jeff Connell, Regional Conservator,
Otago Conservancy, Department of Conservation)
I thank you for your invitation
to attend this meeting. Unfortunately, the House is still in session
and the Opposition have denied me a pair. I regret, therefore,
that I am unable to attend In person. I am sure you will realise
that with the Government's small majority, my presence in the
House is required and must take precedence.
I have divided the comments I wish to make into three distinct
parts. The first relates to Treaty claims generally but with special
reference to the Ngai Tahu claim. The second part concerns the
conservation estate and I will be outlining decisions recently
made by the Government as to the availability of conservation
lands in the settlement process. This is the first time that particulars
of those decisions have been made public. The third and final
part relates to the pastoral leases with particular reference
to the Greenstone Valley, Elfin Bay and Routeburn Stations.
I begin, therefore, with a brief summary of the Treaty of Waitangi
claims brought by Maori against the Crown. As you may know, there
are over 400 claims lodged with the Waitangi Tribunal. About 70
of these have been dealt with, withdrawn, or the Tribunal has
decided that no further action is required. Then there are some
generic claims which have nothing to do with land and relate to
issues of education, the electoral system, health, and the preservation
of the Maori language. Of the remaining claims, most relate in
some way to the land. There are claims for the return of lands
gifted by Maori for schools which no longer exist. Others relate
to the taking of land under the Public Works Act without paying
compensation. Still others claim it was unfair to take lands from
Maori in payment of survey costs that had been incurred. There
are then claims which are more like a breach of contract action
and then there are claims relating to confiscated lands. So there
are many claims and many causes of action. Some are ill conceived.
Some relate to rights that all New
Zealanders have and are not, therefore, founded an the provisions
of article 2 of the Treaty. While the number of claims may seem
daunting, in fact there are a limited number of very large claims,
a middle band, and then a large number of small claims.
All of these claims are against the Crown. In recent years the
courts have issued injunctions and other orders which have required
the Crown to respond. It is no longer possible to pretend that
these grievance claims will simply go away. The Government has
no choice but to face up to the Issues and that is what is being
done. Where Treaty obligations have been breached, the honour
of the Crown is at stake. So the Government has adopted a comprehensive
approach to the whole issue of grievance claims. Where they are
proved valid, then the Crown will seek to resolve them. Settlements
will need to be fair to the claimants to ensure durability and
yet at the same time fair to all New Zealanders.
In the South Island, by far the largest claim is that of Ngai
Tahu. The Waitangi Tribunal after hearing the claim for over two
years issued a full report in 1991. Many of you will be aware
of the grievances and the findings of the Tribunal. It is not
my intention to canvass those at length but in case there are
some present who have not had the opportunity to become aware
of those matters, it might be helpful if I just summarised one
or two of the grievances. In total, Ngai Tahu expected fair dealing
with the Crown. There is little doubt that on many occasions that
did not occur. In the North Canterbury purchases for example,
the Crown sold 30,000 acres for Stg 15,000 or Stg 500 an acre.
Two years later the Crown brought 1.1 m acres from Ngai Tahu for
just Stg 500. Hardly fair. In fact, the Stg 15,000 the Crown received
for the sale of the 30,000 acres was more than it paid Ngai Tahu
for 34.5m acres. Then there were the Kemp purchases in the late
1840s of 20m acres. The purchase was negotiated on condition that
villages, homes, gardens, food resources and other lands would
be returned to Ngai Tahu. Of the 20m acres only 6,300 acres were
set aside. Then there was the involvement with the French on the
Banks Peninsula. The end result was that Ngai Tahu were never
paid for 30,000 acres. In Kaikoura in the late 1850s 2.8m acres
were sold for Stg 300 with the request from the Maori owners that
100,000 acres be reserved to them. In fact only 5,600 were reserved.
And so it goes on. Not all the claim was upheld by the Tribunal.
It found that Ngai Tahu did sell a large tract of land which came
to be known as the hole In the middle. Nor did the Tribunal uphold
the claim for one tenth of the land sold to be set aside for Ngai
Tahu in Otago. But overall after much research there is no doubt
at all that a serious wrong was done to Ngai Tahu. In the Tribunal
report it is summarised as follows:
"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".
Later the Tribunal has this to say about the claim:
"It has been in the hearts and minds of Ngai Tahu since 1848 and repeatedly advanced since that time by one generation after another. It is a claim that could have been avoided and should have been settled before the turn of the century. It still can be settled. The final chapter giving effect to that settlement is yet to be written".
The Ngai Tahu claim is very substantial. Whatever settlement is
reached, it will involve Ngai Tahu waiving a large proportion
of their claim for compensation. In those circumstances, any settlement
package that is put together has to be as attractive as possible.
The Government considers that any one or more of its assets must
be considered as part of the package even though the claim to
a given area of land might have failed. Having said that, obviously
each would have to be considered carefully with appropriate qualifications
where that is necessary. If a property has special significance
to Ngai Tahu because of its spiritual or cultural importance,
then that property, wherever it is, has to at least be considered.
Now we all know that there is a great deal of conservation land
in the South Island. Some of that is of special importance. What
then can be done to recognise the aspirations of Ngai Tahu yet
protect the rights of every other New Zealander. That question
has taken a great deal of time and thought. The Government has
taken a position on conservation lands and their use in any Treaty
settlement and I want to turn to that now.
Conservation Lands
I have often heard it said that the conservation lands provide
a heritage for all New Zealanders. I agree. We are fortunate that
in this country we have been blessed with large areas of land
with natural and recreational values. On the other hand. one cannot
ignore how those lands came to be in the Crown estate in the first
place. Nor need the rules be so absolute and restrictive that
Ngai Tahus interest in wahi tapu or sacred sites is ignored simply
because that site might now be in the conservation estate.
I now want to tell you how the Crown proposes to deal with this
problem.
The Government has agreed that the conservation estate is not
readily available for the settlement of Treaty claims. In those
circumstances where the use of areas of conservation estate in
a settlement can appropriately be considered, the Government has
agreed to some strict criteria for that consideration. These are
as follows:
1. Maintaining stewardship:
a. The existing nature and degree of legal protection provided to natural and historic (including wahi tapu sites) values of the conservation estate should not be diminished except where:
i such a reduction in legal protection is appropriate given the nature of those values; or
ii there are other beneficial conservation effects of the change in legal status.
b. Any changes in management of the estate should be agreed to only where it would not result in lose of protection of natural and historic (including wahi tapu sites) values.
2. Maintaining Public Access
The existing public access and recreation rights should not be reduced except to protect natural and historic (including wahi tapu sites) values.
3. Protection of the Rights of Existing Concessionaires
The existing property rights of third parties granted under Conservation legislation should be administered consistent with any statutory and common law requirements.
The potential interests of existing concessionaires with respect to future use beyond the period of their occupation rights and the needs of sectoral interests (e.g. the tourism industry) should be considered.
Even where those criteria are met, transfer of ownership, with
or without encumbrances attached to the title (e.g. conservation
covenants) will only be considered for small discrete parcels
of land, only where that land has very special significance to
iwi (eg. burial sites) and only where the alienation will not
have adverse effects on the overall management of the conservation
estate or place important conservation values at risk.
Where the criteria are met, except in the rare cases where transfer
of ownership has been justified, any use of the conservation estate
to settle claims would only involve the re-vesting of land subject
to statutory conditions and including the capacity for the Crown
to regain title in the event of noncompliance with those conditions
(e.g. a vesting under the Reserves Act) or a transfer of a significant
management role subject to ongoing Crown ownership and conditions
set under statute.
Any consideration of conservation estate lands for settlement
would be the subject of an appropriate public process determined
on a case by case basis.
That then is the Government policy. It recognises the value of
the conservation estate to all New Zealanders but at the same
time provides a mechanism for the return to Ngai Tahu of small
discreet areas of great spiritual significance. The policy will
be included in a booklet to be published once the remaining policy
decisions on other issues are finally determined.
Pastoral Leases
Most of you will be aware that it is now possible for the losses
to request a tenure review. If the Crown considers there would
be a benefit from such a review, it can agree. In recent years
the procedure that is then followed has been developed. The Minister
of Conservation advised me that he hopes to include a statutory
procedure in a new Land Act in the not too distant future. The
object of a tenure review is to try to provide benefits for everybody.
Not unnaturally that can be the matter of some debate. For the
lessee it may provide him with greater options if he can obtain
the freehold.
For the Crown, on behalf of other New Zealanders, it may mean
that land that is identified as having a high public interest
is removed from the lease and added to the conservation estate.
For the public it can mean in addition more formalised access
rights across the land. There are some 340 pastoral leases. Four
have now been the subject of a tenure review and agreement reached.
A further six are under way at the present time and there are
fifty more which are expected to come on stream. The procedure
that has been developed will, no doubt, be well known to most
of you. The lessee requests or accepts the review, DOC provide
a report on the conservation values, DOSLI then report on the
farming and other viability of what would be left if some of the
land is taken into the conservation estate, discussions are held
between the three parties to sea if general agreement is possible,
there is then public input into the conservation values and public
rights of access etc particularly with interest groups, there
is consultation with Maori, the matter is then referred to the
Minister who considers all views and makes a decision.
Where the tenure reviews occur protection of the conservation
values and public rights of access etc can be achieved in one
or more of the following ways namely vesting part of the land
in the Crown as conservation lands, vesting part of the lands
in the Crown but leased back to the former lessee under a special
lease with conditions, transferring the freehold of what is left
or the residue subject to marginal strips along the rivers to
provide public a , or the registration of conservation covenants,
or open space and access covenants, or public walkways or other
easements if the land is subject to the Land Act. At the end of
the day, the former losses has a freehold estate subject to public
rights which are properly and formally defined, (the public, therefore,
have access as in the past) and the conservation estate is expanded.
I want to now turn to the Greenstone Valley, Elfin Bay and Routeburn
Stations.
These stations are of great importance to Ngai Tahu. Historically,
they provided access to the West Coast for the gathering of pounamu
or greenstone. Today they provide the potential for farming or
for tourism. Ngai Tahu requested the Crown to buy them when they
came on the market for sale. The Crown agreed. It would not have
done so had it not been for the Ngai Tahu claim. It would be a
quite unacceptable breach of faith having done that to now tell
Ngai Tahu that they are no longer available if a settlement is
reached. Neither the Crown nor Ngai Tahu wish to restrict public
access. In the Greenstone Valley at the present time there is
an unformed dedicated road. No one knows quite where that is but
it matters little because the public have used a pathway normally
around the foothills. They have never had a legal right to do
this, however, and historically it has been at the grace and favour
of the lessee. That is not particularly satisfactory to anyone.
The Government has already informed interest groups that the same
procedure will be followed with the Greenstone, Elfin Bay and
Routeburn Stations as is followed with any other pastoral lessee
seeking a tenure review. Accordingly, DOC was invited to prepare
a report on the conservation values and this was completed in
August 1993. The Minister of Conservation then sought comment
from key interest parties. This resulted in further discussions.
DOSLI are now preparing the report on the farming or other viability
issues and then it is proposed that DOC and DOSLI and Ngai Tahu
as the "notional" lessee will sit down to see if some
broad agreement can be reached. That is the usual procedure and
in all other cases enables the lessee to walk away from the deal
if he or she is dissatisfied and bring the tenure review to an
end without inconveniencing the public. The same applies to the
Crown.
Assuming that a broad agreement is reached, however, then it is
proposed that there be full public input particularly from the
interest groups. That again follows the usual procedure and it
will be no different here. Ultimately, the Minister of Lands will
have to consider all the representations and make a decision whether
to proceed or not. I cannot be too certain how long all of this
will take but one would hope that if the DOSLI report is received
in the next month or so, then the public input would be sought
later this year. I have no wish to try to predict the final outcome.
What seems to me, however, to be fairly clear is that at the end
of the day access rights will be far better recognised than they
are now and conservation values far better protected. I know that
the Minister of Conservation who happens also to be the Minister
of Lands has been very impressed with the constructive and responsible
input from sector groups in the tenure reviews held to date. Both
he and I hope that the same will apply to these pastoral leases.
It requires considerable patience and an understanding of what
is at stake for all parties.
There is one further matter that I wish to raise. It concerns
the proposal that has been discussed in the newspapers from time
to time about a monorail. All I wish to say about that is that
in the event Ngai Tahu acquire interests in these properties,
it is not proposed to give Ngai Tahu any special treatment whatsoever.
Nor have they asked for it. They would have to apply in the same
way as anyone else would have to apply for the various consents
and take their chances. Ngai Tahu have indicated to me that that
is perfectly proper and in accordance with their own view.
May I conclude with one or two comments about the negotiation
process between the Crown and Ngai Tahu. Of necessity these negotiations
must 6e able to be hold in a totally open free and frank manner.
Various ideas have to be floated. Some are rejected, other considered
further. But as broad agreement is reached, then obviously if
it impacts an public rights the public will need to be involved.
So it has been with the DOC report on these pastoral leases and
so it was with proposals for the Crown Titi Islands and Whenua
Hou and so it was with the land at Waikuku.
We must ask ourselves what it is we seek to achieve as New Zealanders.
Of course we are entitled to certain rights which we can exercise
and hand on to the next generation. Of course conservation values
are dear to us all Maori and Pakeha. Of course we want to live
in harmony one with the other and each to each. Of course we want
a wrong to be righted on a fair basis. It is goodwill which brings
the threads together and it will be goodwill which decided the
outcome. Let us ensure that that goodwill is present.
Bruce Mason,
Public Access New Zealand
University of Otago, Dunedin
Friday 24 June 1994
This issue is as much about
principle, as it is about a particular piece of land.
The principles relate to the Treaty of Waitangi, and the actions
government takes, supposedly for the good of the whole community,
in rectifying injustices of the past.
Public Access New Zealand believes that in rectifying historical
injustices, principled responses from Government are essential,
not the political expediency that has become the norm in government
affairs.
Social cohesion dictates that there are solutions that don't create
new, festering injustices, for us and future generations to deal
with.
We have not been impressed with government responses to the report
of the Waitangi Tribunal on Ngai Tahu land claims.
The Tribunal found against a claim that the central South Island
(known as the 'hole in the middle') was unlawfully purchased by
the Crown. In other words it was found that there was no breach
of the Treaty. However in other respects there were numerous breaches
of the Treaty in the Crown's past dealings with Ngai Tahu, but
nothing to do with the Greenstone Valley, Elfin Bay, Routeburn
areas or associated high country.
And yet we have witnessed the government paying almost 7 million
dollars of public money to buy out the runholders' interests in
three pastoral leases, for a 'possible' future settlement with
Ngai Tahu. The Government then designated these areas as 'first
priority', ahead of all other lands, for use in a settlement with
the tribe.
It is difficult to understand the rationale for Government's moves.
It was well known to government that the area has outstanding
public recreation values. This is based on a lengthy history of
informal tramping, hunting, and fishing. It was certain that proposals
to allocate the area to a private interest with well-publicised
development ambitions would raise public alarm. This is just what
has happened.
Repeated assurances about public access, from government and Ngai
Tahu, have not helped.
Anyone who knows a little about pastoral leasehold knows that
there are no rights of public access over leasehold. The occupier
holds trespass rights over all.
The consistent thrust of public concerns over the South Island
pastoral high country in general, and as reflected by Government's
own policies, is for the provision of greater rights of publiic
access, not for maintenance of the status quo. So when government,
or Ngai Tahu, state that currently existing rights of access will
be protected, they are giving the public nothing.
There are no legal rights over leasehold for them to give.
Government has referred to a 'paper road' up the Greenstone Valley,
which doesn't coincide with the walking track, and some marginal
strips in the Caples, as public rights of access. This is as if
they were part of the leasehold properties, and that they are
adequate, in themselves, for public purposes. On both counts they
are very wrong.
To satisfy public recreation needs, would require public reservation
of alpine, forest, tussock grassland, river and wetland environments,
plus guarantied rights of public use over those lands and waters.
Additionally there must be guarantied public rights of access
to those environments.
Because 'pastoral' and other environments are so mixed up in the
valleys, a token provision of access, say along the main walking
tracks, cannot hope to satisfy legitimate public needs. The need
is as much to easily get to river banks and hunting blocks, as
it is to walk from A to B without deviation from a track.
Despite decades of pastoral occupation, the whole area has been
regarded as defacto national park, and this informal understanding
has worked most of the time. This is because the former pastoral
occupiers confined their activities to grazing. Unlike the Ngai
Tahu Maori Trust Board, they did not have commercial ambitions
that might preclude the general public from walking, fishing or
hunting. Problems did occur from time to time, particularly for
hunters' access to forests, but these were more an irritant than
an major obstacle to public enjoyment.
However those problems do highlight the inappropriateness of pastoral
leasehold over the greater bulk of these lands, and the need to
rationalise boundaries. Many of the popular tramping tracks, and
some public huts, are squatting on leasehold and are obvious candidates
for sorting out of land tenure.
Over many years the former Forest Service and Lands and Survey
Department, and more lately DOC, attempted to rationalise boundaries
with the leasehold, and to create new public reserves. The most
recent example is the extension to the Lake Rere reserve.
Most significantly, DOC was well advanced in preparing a case
for Government to buy out the runholders' interests in the Greenstone
and Elfin Bay Stations, when Ngai Tahu came along and asked Government
to buy the properties for them. This demonstrates the fallacy
behind Sir Stephen O'Regan's claim on the Holmes Show (on 12 May)
that public access issues had never been raised previously.
Government has been attempting to dampen public concerns by saying
that public access (whether that is existing or improved is unclear)
will be provided if the area is used in settlement with Ngai Tahu.
The Honourable Denis Marshall gave such an assurance when he handed
to Ngai Porou, over 5000 ha of forest park on Mt Hikurangi at
East Cape in the North Island.
A supposedly legally binding agreement was signed between the
Crown and Ngai Porou representatives. Mr Marshall proclaimed that
he "has secured for all future generations of New Zealanders
the right of access to experience Mt Hikurangi's special values".
In December 1992, Ngai Porou unilaterally closed public access
to the mountain. In the intervening 18 months Government has done
nothing to enforce the terms of the agreement, or to claim return
of the land.
Why should we, or anyone else, have faith in any Government assurance
that public access and enjoyment of the Greenstone and Caples
Valleys etc., will be protected under freehold, leasehold, covenant,
or any other arrangement over privatised land?
The appeal of the area for public use is such that setting aside
the greater bulk of the area as a full-blown public park can provide
the only real assurance of protection and public enjoyment. Government,
as the owner of the whole area, now has a wonderful opportunity
to do so.
And it is not, as if there are no alternatives for settlement
with Ngai Tahu.
There are approximately 135,000 hectares of government-owned farms
in Canterbury, Otago, and Southland that somehow have been kept
outside the 'land bank' created for possible settlement with Ngai
Tahu. These are highly productive, low and hill country farms.
It was in coastal and low country areas of the South Island that
the Waitangi Tribunal upheld Ngai Tahu claims that they were deprived
of productive land.
There are also other State-Owned Enterprise lands, such as exotic
forests, that could better provide an economic base for Ngai Tahu
than extremely marginal mountain lands like in the Greenstone
Valley.
Last year, the Minister of Justice described Landcorp farms as
being "among the most suitable" for settlement with
Ngai Tahu. This year they have dropped out of sight.
The consequence has been greater pressure on public or Crown land
for settlement with Ngai Tahu even when such lands have nothing
to do with proven Ngai Tahu grievances. Hence we have the Crown
Titi Islands, Codfish Island, and the Greenstone and Caples etc.,
being actively promoted by government for use in settlement with
Ngai Tahu.
We should be aware of moves made early on to side-line valuable
Government economic resources from use in claim settlement. Landcorp
did a beautiful con-job on the Waitangi Tribunal. Corporation
officials persuaded the Tribunal that the farms were economically
marginal and would be a liability for Ngai Tahu.
What the Tribunal wasn't told was that, unlike most privately
owned land, almost all Landcorp farms adjoin each other and are
therefore capable of amalgamation to form strong multi-million
dollar farming enterprises.
As the sole owner, Government has the discretion to require the
use of certain State-Owned Enterprise lands for settlement. All
that government needs, is the will to do so.
To date, in its quest for cheap fixes to Treaty claims, the Government
has demonstrated a greater willingness to give away public lands
and jeopardise public rights and aspirations of use.
In the Te Anau basin there are a large number of very productive
Landcorp farms. These would provide assured and substantial economic
returns from farming and also a base for tourism developments
on the edge of a World Heritage national park. What could be better
suited for a just, equitable, and enduring settlement of Ngai
Tahu Treaty grievances?
These are just a few of many options Government has open to it
without jeopardising public and Crown lands with high conservation
and recreation values.
I think the best advice for government to come from this meeting
would be--
"Hands off the Greenstone Valley!"
The 'Hands off Greenstone Valley
Campaign', run in conjunction with the Otago Fish and Game Council,
is attracting a lot of public and media attention. 10,000 copies
of PANZ's colour pamphlet on the subject have been distributed
nationally and has been well received. The Fish and Game Council
has printed 15,000 bumper stickers--they are increasingly evident
around the streets of Dunedin and in Central Otago.
On May 24 Alliance leader Jim Anderton presented the petition
of Queenstown resident Kaj Christensen and 6954 others to Parliament
opposing the development of a monorail or road in the Greenstone
Valley.
PANZ is planning a series of public meetings to give Government
an opportunity to explain their intentions, and handling of the
issue, and for members of the public to ask questions and voice
their concerns. Justice Minister Doug Graham has been asked for
his availability during the next two months so that the first
meeting, planned for Dunedin, can proceed. Further meetings elsewhere
may result. The meetings will be publicly advertised.
STOP PRESS
Minister of Conservation Denis Marshall has advised (23 May) that
"the Government has considered the strong message it has
received from the public that a formal public consultation round
should be undertaken". Government has agreed to enter into
such a process for the Greenstone, Elfin Bay and Routeburn Stations.
"The nature of this process is still under development".
Note that Government, while looking at public consultation on
use of any other Crown or public lands in claims settlement, has
not agreed to such. Your letters to Government are still necessary.