Te Rūnanga-ā-Iwi o Ngāti Kahu Land Claims Portfolio
Report for November 2017
1. Waitangi Tribunal judicial conference 13, 14 November
2. National Iwi Chairs Forum hui 29 November to 1 December
3. Launching the Ngāti Kahu book – January 3 Te Paatu marae
4. New Minister of treaty claims is Andrew Little
5. Appeal on the repossession of Rangiāniwaniwa dismissed by the High Court
• A judicial conference to prepare for the full hearing next year for binding recommendations took place at the Ramada Resort, Taipā on 13 and 14 November.
• National Iwi Chairs Forum’s hui will be held from 29 November to 1 December at Te Papa – the National Museum in Wellington. It is being hosted by Rongowhakaata.
• For our book, Ngāti Kahu: Portrait of a Sovereign Nation, it will be launched at Te Paatu marae on 3 January 2018 followed by a wānanga.
• With the change of government, a new Minister of treaty claims has been appointed. It is Andrew Little, the immediate past leader of the Labour Party. He is a lawyer and has a strong union background.
• The appeal to the High Court against the decision of the Kaitāia District Court on the repossession of Rangiāniwaniwa has been dismissed.
1. Waitangi Tribunal judicial conference 13, 14 November
The Waitangi Tribunal held a judicial conference on Monday and Tuesday 13, 14 November at the Ramada Resort, Taipā. The Tribunal is under orders from the Court of Appeal to make binding recommendations to return State Owned Enterprise and Crown Forest lands to Ngāti Kahu. The purpose of the judicial conference was to hear from the lawyers about what the full hearing for binding recommendations should cover and how that should be done. However, the Crown succeeded in taking over the judicial conference asserting that the Tribunal did not have jurisdiction to hear our application for binding recommendations. They claimed that because this is a new panel of members it had to go back and start from the beginning of Ngāti Kahu’s claims. The Crown is telling the Tribunal that it must go back to the very first land claims hearings which started in 1990 and hear them all over again.
In its desperation to stop the Tribunal doing what the Court of Appeal has ordered it to do, the Crown is being very disingenuous. They know that the original claimants and those who gave evidence for Ngāti Kahu have all (except one – me) passed away. They also know that the evidence they gave and the Tribunal’s rulings on it are all still held by the Tribunal. So are all the legal submissions, directions made and reports written by the Tribunal, and the sound recordings made of those hearings. The Tribunal does not have to start again, it simply needs to take time to familiarize itself with the extensive record it already holds.
What the Crown is doing is yet another serious breach of a number of Ngāti Kahu’s legal rights. In the judicial conference the Crown made very complicated submissions in an attempt to tie the Tribunal up in legal knots. What we saw was the true extent of the bad faith of the Crown.
Initially, while our lawyers vehemently opposed the Crown and reminded the Tribunal very bluntly of the directions given to them by the Court of Appeal, several of the interested parties who have jumped onto our application supported the Crown. However, when they realized what the Crown was up to, they ended up opposing them too.
Then, in a move reminiscent of the 1990s hearings when kaumātua Monita Delamare and Manu Bennett were on the Tribunal, one member of this Tribunal, Associate Professor Tom Roa, asked whether the tikanga of Ngāti Kahu could assist. However, he was clear that it is the judge, not the other Tribunal members, who has the final say. So, after listening to a day and a half of Pākehā law, the judge gave us the opportunity to make a very brief statement on the tikanga of Ngāti Kahu as it would apply to this application. We drew on McCully Matiu’s advice recorded in his book Te Whānau Moana: Ngā kaupapa me ngā tikanga, and read passages from it to the Tribunal. We emphasized that this is a Ngāti Kahu mana whenua claim, not a Ngāpuhi or any other iwi claim and that all hapū in Ngāti Kahu speak for themselves. We also said that in terms of being tika, the Crown had entered into an out of court settlement in the 1980s to return land that the Tribunal upheld claims over and it is therefore only tika that the Crown honour that agreement and return Ngāti Kahu’s land. Spokespersons for eleven of the thirteen marae who are affiliated to the Rūnanga were present and each one stood and told the Tribunal that they supported the application for binding recommendations.
The Tribunal directed that within a week, our lawyers file further legal evidence they found overnight during the judicial conference and the Crown to file its responses. We expect to hear from the Tribunal on the jurisdiction issue within the next fortnight.
2. National Iwi Chairs Forum meeting 29 November to 1 December
National Iwi Chairs Forum’s hui will be held from 29 November to 1 December at Te Papa – the National Museum in Wellington. It is being hosted by Rongowhakaata who have just taken over as the iwi in residence. Anthony Housham and I will attend along with Archdeacon Tīmoti Flavell and Reremoana Renata, Ānahera Herbert-Graves and Hōhepa Rāmeka.
We do not yet have the agenda papers. I will be reporting as usual on Matike Mai Aotearoa and the Monitoring Mechanism. Moana Jackson’s work has been acknowledged by Victoria University of Wellington who are conferring an Honorary Doctorate of Laws on him. Associate Professor Claire Charters’ work in the United Nations, which has helped us hugely on the Monitoring Mechanism, has been rewarded with a Rutherford Fellowship to do international research for five years on how to implement the constitutional transformation work done by Matike Mai Aotearoa.
The Monitoring Mechanism has prepared a briefing paper for incoming Ministers on its work and that of Matike Mai Aotearoa. The last government promised to fund a longer conversation on constitutional transformation and to develop and implement a National Plan of Action for the Implementation of the United Nations Declaration on the Rights of Indigenous People – but it did nothing. It remains to be seen whether or not the new government will engage with National Iwi Chairs Forum and whether it will do something more substantive in these areas.
In addition to these matters, I will also be presenting my and my colleague, Tiopira McDowell’s preliminary findings from the research into claimant and negotiators’ experiences of the treaty claims settlement process. The following is the summary of the presentation that I included in my report to National Iwi Chairs Forum:
As agreed at the August hui of the Forum, I will do a presentation on the preliminary findings of the research project “What Do the Claimants Say? Reconceptualising the Treaty Claims Settlement Process”. The presentation sets out the following preliminary findings:
• The primary purpose of settlements recorded in the Doug Graham 1997 book, Trick or Treaty and also in 1990s Cabinet minutes is to clawback Māori legal rights to binding recommendations provided for in the State Owned Enterprises Act and Crown Forest Assets Act. Only 1 of the 118 interviewees to date was aware that this is the true purpose of the settlements.
• Governments’ publicly stated purpose is notably different and asserts that settlements will
improve race relations
acknowledge and resolve historical injustices
restore the honour of the Crown
remove the sense of grievance felt by Māori
improve the socio-economic status of Māori
achieve full, final and fair settlements
• Interviewees reported no evidence that the settlements have delivered on any of these assertions by the Crown.
• A large number of common themes have emerged from the Māori Affairs Select Committee submissions and from the interviews. They include:
Claimants want their claims settled fully and fairly.
Whānau and hapū are frequently marginalised under the large natural grouping policy.
Existing settlements are not full, not final and not fair and will be revisited.
Many aspects of the policy and process are perverse (they fly in the face of what is reasonable and just).
Many report being bullied by the Crown and having settled under duress.
Divide and rule has caused immeasurable damage within and between claimant communities. It appears that no claimant group has been spared in this respect.
An agreed settlement policy and process has a much greater chance of success.
It is for Māori to determine settlements, not the Crown.
• There are numerous reports of the Crown misrepresenting facts and misinforming negotiators in order to push settlements through. Each claimant group has its own specific examples, but there are a large number that were common across many claims. Examples of these false assertions include:
That the Doctrine of Discovery applies, that is, that the Crown is sovereign by right of discovering the country and that only it can decide what Māori may and may not have and do. As a result, there are no negotiations, the Crown dictates. This violates not only Te Tiriti o Waitangi but also both domestic and international human rights requirements.
That the Crown must extinguish Māori legal rights to lands and natural resources including unextinguished native title (many reported no discussion on this aspect of their settlement).
All claims in a geographic area must be extinguished even though almost all of the claims have not been addressed. This is another human rights violation.
Claimants can not exercise their legal right for the Waitangi Tribunal to order that their land be returned (binding recommendations as provided by the State Owned Ensterprises and Crown Forest Assets Acts). The Court of Appeal has overruled this assertion and ordered the Tribunal to make binding recommendations.
Claimants must pay for their land that the Crown stole from them. Under the State Owned Assets and Crown Forest Acts land is returned at no cost and compensation is paid for the forests.
Māori will be decision-makers in co-management arrangements (but their role as defined in the settlement legislation is advisory only).
For historical accounts in Deeds of Settlement, any implication that the Crown or its agents acted illegally or unlawfully must be removed and Māori recall of Crown brutality and atrocities must be eradicated. In response, some iwi write and publish their own accounts separately from so-called ‘agreed’ historical accounts in order to accurately record Crown atrocities.
Settlements alleviate poverty, deprivation and marginalisation and bring significant benefits to iwi who settle. This is belied by statistics which show that Māori socio-economic conditions have worsened rather than improved. Almost all interviewees report little or no benefits for the people.
International human rights instruments including the United Nations Declaration on the Rights of Indigenous Peoples cannot be taken into account or even considered in settlements. This flies in the face of the government having advised the United Nations in 2010 that it supported the Declaration.
• Preliminary conclusions:
None of the interviewees consider the government has acted honorably.
Some were unaware of their legal rights, most were unaware of the extent of their rights extinguished by settlement legislation.
Most treaty breaches and human rights violations, most particularly the current constitutional arrangements, are not addressed by the settlements and hence they are not full, not final and not fair and will be revisited.
The settlements have not changed Government behaviour and its lawlessness carries on.
Many negotiators and claimants do not accept so-called ‘apologies’ recorded in Deeds of Settlement.
The settlements have not achieved reconciliation between Māori and Crown.
A number of interviewees noted that there are serious legal consequences for the Crown arising from the treaty claims settlements.
I will report on the hui of National Iwi Chairs Forum at our Rūnanga hui on 2 December in Auckland.
3. Launch date for the Ngāti Kahu book – 3 January 2018
As reported last month, our book Ngāti Kahu: Portrait of a Sovereign Nations will be launched on 3 January 2018 at Te Paatu Marae, Pāmapūria starting at 10am. It will be followed by a wānanga on the book for the rest of the day. The following morning there will be a dawn unveiling for the Ngāti Kahu pou in Te Ahu Centre in Kaitāia. The pou encapsulates the kōrero in our book about our ancestors Kahutianui and Te Parata, our waka Māmaru, our maunga, Maungataniwha, our seas and our hapū.
Huia Publishers has advised that the shipment of the completed book has been delayed by a fortnight and will not now be available before mid-December. It can still be pre-ordered now from the publisher’s website http://www.huia.co.nz/huia-bookshop/bookshop/ngati-kahu-portrait-of-a-so.... The cost is $65. They advise that EFTPOS will be available to purchase books at the launch on 3 January.
For items 4 and 5, please see the summary above.
Professor Margaret Mutu
24 November 2017