Te Rūnanga-ā-Iwi o Ngāti Kahu
Land Claims Report for September 2010
- Preparing Our Ngāti Kahu Deed of Settlement – drafting continuing.
- New Marine and Coastal (Takutai Moana) Bill.
- Te Ana o Taite in the High Court.
- Pākehā media attacks on iwi leaders and Ngāti Kahu response.
- Te Aupōuri letter requesting removal of Ngāti Kahu from Te Hiku Forum.
· Your negotiations team continues drafting the Ngāti Kahu Deed of Settlement and conducted a two day intensive combined working session.
· The present government’s version of the Foreshore and Seabed Act was tabled in parliament last week. Although it repeals the 2004 Act it replaces it with even more draconian legislation that once again confiscates our foreshore and seabed.
· We applied for an interim injunction in the High Court to stop Carrington Farms doing any more work on our wāhi tapu, Te Ana o Taite. The Court declined the interim injunction partly because Carrington Farms had stopped doing any work and promised not to do anything before the Environment Court issued its decision.
· Just before our hearing in the High Court the business section of the New Zealand Herald published a columnist’s attack on Mark Solomon (Ngāi Tahu) and me as iwi leaders. After the Court decision was released two weeks later, the Herald published Ngāti Kahu’s rebuttal which highlighted many serious errors of fact and very poor journalism in the offending column.
· Te Aupōuri has requested other iwi to settle the areas shared by all five iwi, that is, Te Aupōuri Forest and Te Oneroa-a-Tōhē (Ninety Mile beach), without Ngāti Kahu. Should that occur we will take the Crown and those iwi to the Waitangi Tribunal.
1. Preparing Our Ngāti Kahu Deed of Settlement – drafting continuing
Members of our Deed of Settlement drafting team met with tax advisors and spent two days working on and refining the current draft of our Deed of Settlement. We made a great deal of progress, highlighting those areas where we need further information from our hapū in addition to the crucially important information our oral traditions team has collected from our kuia and kaumātua. The information provided here already has been extremely helpful in drawing attention to areas mentioned only briefly in the Waitangi Tribunal’s Muriwhenua Land Report but which kuia and kaumatua did provide a great deal of information on – especially relating to Te Oneroa-a-Tōhē, Tangonge and Ōpouturi. Work is now starting on translating parts of the draft Deed now in English into Māori.
We also discussed the definition, exercise and methods of determination of mana whenua in terms of Ngāti Kahu tikanga at considerable length. We decided to include a detailed section on this in our Deed of Settlement.
In November we will be conducting further consultation hui in Australia and in Wellington to ensure that as many Ngāti Kahu as possible can have input into our Deed of Settlement.
Don’t forget, we still need those photos of those involved in the claims who have now passed on. Can whānau please email the photos of their mātua, tūpuna, and rohe they would like included in the Deed of Settlement to Bardia at the office (email@example.com).
2. New Marine and Coastal (Takutai Moana) Bill.
This bill was tabled in parliament last week. It repeals the 2004 Foreshore and Seabed Act and allows Māori to go to the High Court to seek recognition of our mana whenua and hence ownership of our territories in the marine and coastal area. This appears to be the sole basis on which the Māori Party has supported the bill.
The rest of the bill is as bad as if not worse than the 2004 Act. The bill sets out the criteria for proving mana whenua. These have been unilaterally set by the Crown and do not reflect tikanga. The criteria aim to keep all areas Māori have an interest in, except those claimed as Pākehā title, under the control of the Crown and ensure that few if any Māori will gain the customary title they may seek. The bill effectively confiscates the areas for which Māori cannot meet the criteria, setting a six year deadline for the extinguishment of almost all Māori rights.
The criteria which must be met by Māori are not required of those holding Pākehā title. Instead their ownership and control is upheld and confirmed.
I circulated Moana Jackson’s analysis of the bill two weeks ago. It is available at http://www.converge.org.nz/pma/mj080910.htm. The following is Hone Harawira’s summary of Moana’s analysis:
The Foreshore and Seabed Act (2004) V The Marine and Coastal (Takutai Moana) Act (2010) – A Comparative Analysis (issued by Hone Harawira)
WHAT’S THE DIFFERENCE
What is the fssb vested in?
A new legal entity - “common space”
NONE – Under the “common space” of the MCA, the Crown retains statutory authority over the fssb, and determines who gets what rights to the fssb
What rights are Māori offered?
“Customary Rights Orders” allow Maori to fish, gather, and visit significant sites
“Customary Rights” - an extension of those offered in ‘04
NONE – No Customary Rights Orders were issued under the FSSA. Under the MCA, whanau, hapu and iwi are expected to find it difficult to prove “continuous” relationship to the fssb, due in large part to the actions of the Crown since 1840.
What is the end date for lodging claims?
If Māori do not lodge a customary right claim under the MCA within six years, then they will miss out all together.
Do Māori have the right of access to the Courts?
Yes, but the threshold for a successful case is too high
Yes, but the threshold for a successful case is too high
NONE – Under both bills, Maori have to show that they held “exclusive use and occupation of the area since 1840 without substantial interruption, and that the area in question was held in accordance with tikanga”. The Prime Minister himself has said that the threshold of the test under the MCA is so high that most Maori will not be able to meet it.
Does the bill discriminate against Maori?
NONE – Under both the FSSA and the MCA, Maori who can prove it, will have their title registered as “Customary Title” and be required to adhere to regulations that foreign owners, and private owners of the fssb do not.
Does this bill confiscate Maori rights?
NONE – The FSSA was a direct confiscation. Under the “common space” of the MCA, the Crown retains statutory authority over the fssb, and determines who gets what rights to the fssb. Maori rights are still confiscated
Do rights granted under the bill amount to much?
Under the FSSA, Māori rights were stuck in 1840. Under the MCA, Māori rights are extended to include participating in more decisions, and a claim to certain non-Crown minerals. But rights granted under both pieces of legislation are at the whim of the government of the day
Are Māori happy with the legislation?
NONE – In 2004 40,000 Māori marched on parliament to protest the FSSA. In 2010, Māori commentators, iwi leaders, political activists and both Maori Party co-leaders have all expressed their concern with the MCA. No Maori leader has come out in support of the bill. Maori are happy with neither bill.
I have asked Hone to come to our Rūnanga meeting at Ōturu next Saturday (25 September) to explain the bill and answer Ngāti Kahu’s questions.
3. Te Ana o Taite in the High Court.
The hearing for interim relief to prevent Carrington Farms desecrating Te Ana o Taite any further took place in Whāngārei on 7 September. The High Court declined the application on the following grounds:
a. We took too long to get it into the High Court (because we went to the Far North District Council hearings and then Environment Court first instead of going to the High Court first.)
b. Carrington Farms has not done anything since the Environment Court application and so they’re not doing anything that has to be stopped. Furthermore they promised the High Court they wouldn’t do anything until the Environment Court issued its decision. That seemed to be good enough for the High Court.
c. The Court accepted that we had a right to be heard and we can do that by mounting a substantive hearing in the High Court and hope it gets dealt with before Carrington Farms does anything.
d. It did not accept our arguments on the earthworks and suggested that that matter go back to the Environment Court for that.
Our lawyers consider this decision odd at best and embarrassingly (for the court) wrong on several accounts. It appears to reflect a rather negative attitude on the part of the judge towards Māori. I must say that is not unusual in this country’s judiciary so we shouldn’t be surprised.
I met with our lawyer on Friday. Because of the strength of our case, he wants to pursue this without charging us for his time but warns that because of this he will not be able to pull in as many resources as he would like to. Even with this there will be substantial costs to meet. I have been unable to contact the source of the offer of help I reported a couple of months ago and so we are back seeking support in this respect. Thus far three marae have agreed to assist.
We are still waiting on the decision of the Environment Court. Should that fail we will appeal that decision to the High Court and hope we don’t get the same or a similar judge (there are some who do not have a negative attitude towards Māori).
Again I need to emphasise that the instructions of Ngāti Kahu’s hapū and marae were to ensure that Te Ana o Taite is protected. We are pursuing this matter through the Pākehā courts in the hope that they can direct Carrington Farms to leave Te Ana alone. If they can’t then Ngāti Kahu tikanga will determine how that is to be done.
4. Pākehā media attacks on iwi leaders and Ngāti Kahu response.
On 28 August, just 10 days before our High Court hearing on Te Ana o Taite, the business section of the New Zealand Herald published an opinion column by one of its senior business journalists which attacked both Mark Solomon (Ngāi Tahu) and me as iwi leaders. However, most of the attack focused on me personally, then as the chair of our Rūnanga and then also as a Professor of the University of Auckland. The columnist has never spoken to me.
Ngāti Kahu’s lawyers were particularly concerned and advised that our marae be notified. Our marae directed that a very strong rebuttal be sent to the Herald and that if they refused to publish it in full and without amendment that a formal complaint was to be laid with the Press Council. The offending column came under immediate and severe criticism on the Herald website but for some time the Herald refused to publish the statement authorized by our marae. Finally, on the day the High Court delivered the decision on Te Ana o Taite, the statement was published in full. Copies of both the offending column and the response of our marae can be accessed on the website of the New Zealand Herald or from our office.
Several people have asked whether there was a connection between the timing of the newspaper attack and the court hearing and then the decision being issued and the rebuttal being published. It would be difficult to prove. People have noted in asking that the owner of Carrington Farms is on the New Zealand Business Round Table and is very well known in Auckland business circles.
5. Te Aupōuri letter requesting removal of Ngāti Kahu from Te Hiku Forum.
Early in August Pat Snedden, the Chief Crown Negotiator, met with me to try to get Ngāti Kahu to rejoin Te Hiku Forum so that all five iwi settlements could be completed by December. He is under instructions on this to ensure that settlements are not an election issue next year as they were for the 2008 elections. I refused his request reminding him that we are finishing our Deed of Settlement before we do anything else. I also refused his request for Karikari marae to meet with the Minister of Conservation and DoC officials over the Karikari marae site following the instructions of my marae to do so.
On 13 September we received a copy of a letter from Te Aupōuri’s negotiators supporting the Crown’s instruction that Ngāti Kahu return to Te Hiku Forum by November and that if we don’t, that the other iwi plan how to settle without us. I am aware that the Crown has been trying to work out how to do this for some time now.
Should the Crown attempt to settle areas that Ngāti Kahu has interests in without Ngāti Kahu, we will simply return to the Waitangi Tribunal to stop that happening. Such an application will, by itself, hold up any settlement for quite some time and well beyond the Crown’s December deadline. It will also distract us from our Deed of Settlement. The Tribunal has already issued the Crown instructions about not doing this sort of thing in the Ngāti Whātua ki Ōrākei case. In that case, it told the Crown to go back and start again with all iwi involved.
Professor Margaret Mutu
19 September 2010