Te Rūnanga-ā-Iwi o Ngāti Kahu
Land Claims Report for March 2011
Hui with Ngāi Takoto 1 March 2011 at the University of Auckland
Te Ana o Taite – High Court hearing 17, 18 and 23 March 2011
Work on Deed of Settlement continues
Support for our approach to our partial settlement from the Chief Justice
Hīkoi against the Marine and Coastal Area (Takutai Moana) Bill
This month we had a very good hui with Ngāi Takoto’s negotiators in respect of Rangiāniwaniwa (the airport and the school). We were in hearings in the High Court trying to protect our big burial cave, Te Ana o Taite, from being further desecrated and destroyed by Carrington Farms. We are now finalizing most aspects of our Deed of Settlement, including having a section protecting all our wāhi tapu so that we do not have to repeat what we having to do for Te Ana o Taite for all our other wāhi tapu. While the government is antagonistic towards the approach we are taking to our Deed of Settlement, the Chief Justice has indicated that she considers it is the right approach. Our taumata kaumātua and our rangatahi have organized the hīkoi against the Marine and Coastal Area bill and have gathered support as they made their way from Te Rerenga Wairua to Wellington.
1. Hui with Ngāi Takoto 1 March 2011 at the University of Auckland
We met with Rangitāne Marsden, Mangu Awarau and Robert Tāmati at the Department of Māori Studies to discuss Rangiāniwaniwa. Rangiāniwaniwa was confiscated by the Crown during the Second World War from the Erstich (Mātenga) and Pōpata whānau and they have instructed Ngāti Kahu to have the Crown removed and our ownership recognised. We discussed this in our last Rūnanga meeting to make sure our negotiators were very clear on our instructions.
Although it had been reported to us that Ngāi Takoto were claiming major interests in Rangiāniwaniwa, once we reminded them of the factual situation they said they only wished to have one representative on any board that the land came under the control of. Like us they do not want to pay for the Crown relinquishing it but have yet to convince the Crown of that themselves. They did admit having asked for the urgent meeting because of pressure from the Far North District Council. We told them the Council can wait and they agreed. They also agree that once the Crown has been removed the land will never be able to be sold.
We briefly discussed the structure of the entity that would hold the lands and our Ngāti Kahu negotiators discussed it more fully once Ngāi Takoto left the meeting. Ngāi Takoto’s lawyer is to contact Te Kani with their proposals for the lands.
At the beginning of the hui I did tell Ngāi Takoto off for expelling Ngāti Kahu from Te Hiku Forum. It drew almost no reaction but that may have been because I told them off at length i te reo Māori.
2. Te Ana o Taite – High Court hearing 17, 18 and 23 March 2011
Last week I circulated the following report on our appeal to the High Court in respect of Te Ana o Taite. I’m repeating most of it here as it provides the background that everyone needs to be aware of.
On Thursday 17 and Friday 18 March we were in the High Court in Whāngārei seeking
a) a declaratory judgement that our 2001 out of court settlement with Carrington Farms and the Far North District Council says Carrington Farms will not do any development work in the area where our burial cave, Te Ana o Taite, is (or anything within 800m of the mean high water mark);
(b) a judicial review of the Far North District Council decision to grant a building consent to build 12 large houses on Te Ana o Taite in 2008 without notifying the Rūnanga as required by the settlement agreement;
(c) appealing the decision of the Environment Court to allow Carrington Farms to subdivide Te Ana o Taite in order to sell it off.
The judge in the High Court emphasised from the outset that this is an extremely important case for Ngāti Kahu and is a case of national importance. He repeated this several times over the two days. For this reason he wanted to make sure he understood the case fully and completely and as a result took up a huge amount of time questioning the lawyers extensively on almost every point they raised and making copious notes to make sure he'd understood them properly. Inevitably we ran out of time and as such the case will continue next Wednesday 23 March in the High Court in Whāngārei.
The judge is absolutely right about how important this case is for Ngāti Kahu. I am becoming increasingly alarmed at the number of our wāhi tapu that keep being violated and Far North District Council's on-going refusal to protect them. Our most recent example is Te Kuihi pā at Taipā. We are trying to ensure that all our wāhi tapu are protected through our Deed of Settlement but at the end of the day, it is the Pākehā authorities that must stop Pākehā developers violating our wāhi tapu. This is why it is fundamentally important that we win our case to protect Te Ana o Taite. It will set the precedent which will ensure that Far North District Council has to protect all our other wāhi tapu.
In order for all our marae to be up to date on this matter I will summarise as briefly as possible the various reports I've given on this over the past 11 years.
We need to bear in mind that this case now involves a mountain of documentation accumulated over those 11 years since 1999. It includes correspondence between the Rūnanga, the Far North District Council, Carrington Farms, the Historic Places Trust and our lawyers, Russell McVeagh; extensive legal and other expert advice - almost all provided free of charge because of the fundamentally important need to protect Te Ana o Taite; minutes of several hui of Haititaimarangai marae, Karikari marae and the Rūnanga; hundreds of hours and numerous meetings spent trying resolve the issues with Carrington Farms; mountains of evidence prepared for the Far North District Council, the Environment Court and the High Court; council and court decisions.
This whole matter in respect of Te Ana o Taite revolves around two basic matters of fact. The first is that section 6(e) of the Resource Management Act requires local authorities, including the Far North District Council, as a matter of national importance, to recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga.
Even though we know that councils and the Environment Court are notorious for ignoring this section of the Act, it does mean that, as a matter of law, Te Ana o Taite must be protected, that is, it must be left alone. Violation of Te Ana o Taite by Carrington Farms in 2009 by putting a track through it and clearing vegetation, has already had devastating effects on Te Whānau Moana hapū of Karikari and Haititaimarangai marae - although those effects have been (at least temporarily) halted since we got serious about the fight to stop that desecration. But we know only too well that if Carrington Farms starts work again on Te Ana o Taite, that Te Whānau Moana will once again pay the price for that desecration. So we are left with no choice but to stop them.
The second fact that this matter revolves around is that in 2001 Carrington Farms and the Far North District Council entered into an out of court settlement agreement with our Rūnanga. That agreement was sealed in the High Court. In that settlement agreement we allowed Carrington Farms to proceed with developing its golf course, club, accommodation and winery provided it stayed away from all our wāhi tapu. Those wāhi tapu are all burial grounds and are spread along all the dunes on Karikari beach and include Te Ana o Taite (which is the name of the very big burial cave located just to the south of Wairahoraho stream). We drew a map showing all the areas to be protected and attached it to the agreement. Te Ana o Taite was clearly and deliberately included in that area to be protected from any development, as were all the sand dunes. The Environmental Defence Society negotiated for the areas flooded by Carrington Farms at Waimangō to also be protected as regenerated wetlands. The agreement also said that Te Rūnanga-ā-Iwi o Ngāti Kahu would be an interested party for any further development on any Carrington Farms land. That means we had to be formally notified of any plans for further developments.
In 2008 the Far North District Council not only gave Carrington Farms a resource consent to build 12 large houses on Te Ana o Taite, it did so without notifying the Rūnanga. That was a double violation of the out of court settlement. We did not find out about this until Carrington Farms applied for a subdivision consent to sell the house sites in mid-2009.
We objected to the subdivision but the Far North District Council said it was too late because Carrington Farms already had a building consent (which we were not informed of). So we took them to the Environment Court. Although that Court was sympathetic and wanted to help us, Carrington Farms convinced them that they did not have jurisdiction to overturn the consent (because we did not stop the previous building consent) or to consider the out of court settlement. To our disbelief, they also convinced that Court that a Pākehā archaeologist could define where our wāhi tapu was (very conveniently just outside the house sites) and that our extensive knowledge as tangata whenua had to be ignored. Carrington Farms was able to exploit the Court's gross ignorance of tikanga in order to get it to swallow the lie that archaeologists know more about wāhi tapu than tangata whenua. We have advised the High Court that we do not accept this and will never accept Pākehā telling us we don’t know anything about our own wāhi tapu.
However the Environment Court advised us during the hearing to take our out of court settlement to the High Court and pointed out in its decision that Carrington Farms should never have been given any consents because the housing development violated sections 6(a) and (b) of the Resource Management Act (that it will violate the natural character (no buildings) in that area of our coast and the outstanding landscape (marvellous views) of the area).
So we are now in the High Court fighting those matters. Te Whānau Moana kuia and kaumātua turned up in force for the hearing, something the judge noted. Kenana marae also turned up in support.
3. Deed of Settlement
The negotiations team has almost completed the first full draft of our Deed of Settlement. Each of us has been working intensively on our own sections to ensure they are as complete as possible. We had the latest version for people to peruse at the last Rūnanga hui and this month’s latest version – which will be very close to what will be sent to the Minister of Treaty Negotiations on 31 March – will be available at our hui on 26 March.
4. Support for our approach to our partial settlement from the Chief Justice
On 3 March I attended Christian Whata’s (our counsel for Te Ana o Taite) swearing in as a High Court judge. After the ceremony I was approached by the Chief Justice, Sian Elias, asking about our land claims. She commented that she found it incomprehensible that governments can force claimants to accept settlements as full and final when they so obviously are not. She considered it inevitable that future generations would revisit them.
I explained to her that Ngāti Kahu has made it clear to the Crown repeatedly now that
· the settlement we are working on is partial only because it does not meet Ngāti Kahu’s conditions for it to be full and final but is simply the best my generation has been able to achieve;
· we had refused to allow the Crown to write our Deed of Settlement and are writing it ourselves to ensure that the truth of who Ngāti Kahu are, what the relationship with the Crown as defined in Te Tiriti o Waitangi is, and what actually happened to us is recorded there rather than the usual Crown-invented fiction that appears in other Deeds of Settlement;
· we have a formal resolution from a hui-ā-iwi of Ngāti Kahu handing responsibility to the next generation for recovering the rest of Ngāti Kahu’s lands and resource from the Crown.
She was delighted to hear this and wished us all the best.
5. Marine and Coastal Area (Takutai Moana) Bill
Māori opposition to the Marine and Coastal Area (Takutai Moana) Bill is now very widespread, with our rangatahi, fully supported by our taumata kaumātua, organizing the Hīkoi 2011 in protest against the bill.
At our last Rūnanga meeting we discussed the request from our rangatahi to support a hīkoi. We supported it in principle but shortly after our hui the hīkoi was called off because the country’s attention was focused on the earthquake in Christchurch. However it soon became obvious that the government would try to push the bill through the House while people’s attention was elsewhere. And so we witnessed the callous disregard for the situation of Ngāi Tahu, who are amongst the bill’s strongest opponents but are completely focused on trying to recover from the earthquake. The government, with the now incomprehensible support of the Māori Party, decided to exploit that tragedy and push the bill through its final stages in the House well ahead of its scheduled time.
As a result our kaumātua decided that the hīkoi had to proceed. It started on Monday 14 March at Te Rerenga Wairua and made its way through the country to Whāngārei, Tāmakimakaurau, Hauraki, Taurangamoana, Rotorua, Taupō, Hastings, Palmerston North, Otaki, Porirua and Wellington. It will be arriving at parliament on Tuesday 22 March. Although the government tried to push the bill through the house before the hīkoi arrived, opposition parties effectively stopped it doing so.
Māori opposition to the bill remains focused on the facts that it
· confiscates all the foreshore and seabed from Māori, but protects Pākehā titles in the same area
· discriminates against Māori by depriving only Māori of the property rights in the foreshore and seabed
· sets tests for Māori to prove their foreshore and seabed is theirs so high that no-one will meet them
· claims that no-one owns the foreshore and seabed and yet arbitrarily determines that the Crown will control what happens there.
Attempts to have the Māori Party MPs represent the very strong Māori opposition appear to have failed, causing huge disappointment and considerable consternation that the strong and independent Māori voice they were appears to have been silenced. The only ones in the House voicing Māori views accurately at present are Hone Harawira, now an independent in parliament having been forced out of the Māori Party, in part, for opposing this bill, and the Green Party.
Despite the numbers involved in this 2011 Hīkoi being well down on those for 2004, it is still successfully bringing Māori opposition to the attention of the country with Māori news media giving it prominent daily coverage.
Professor Margaret Mutu
21 March 2011