Te Rūnanga-ā-Iwi o Ngāti Kahu
Land Claims Report for February 2013
1. Waitangi Tribunal’s decision on our application for binding recommendations
2. Aotearoa Matike Mai – The Independent Constitutional Transformation Working Party
The Waitangi Tribunal has issued its report on our application for binding recommendations. I have been indicating for several months now that if it wanted to survive, the Tribunal would have to decline our application and that has proven to be the case. Although the body of its report is highly critical of and very hostile towards our application, there are very lengthy and detailed non-binding recommendations that are in line with our Deed of Partial Settlement. They include that there be a partial settlement of our land claims. Provided the Crown does not ignore the Tribunal, as it usually does, there is a real possibility that we may still be able to achieve the partial settlement we were pursuing in 2011 that the Crown rejected.
The Tribunal’s report has highlighted how important the work of the Constitutional Transformation Working Party is. The report demonstrates clearly that for Ngāti Kahu to be afforded the same legal rights as non-Māori would pose a serious threat to current constitutional principles and arrangements. Work is progressing well on drawing up a model for a written constitution that would see an end to such discrimination. Over 100 hui have been conducted throughout the country to establish the principles that will underpin that model.
1. Waitangi Tribunal’s decision on our application for binding recommendations
On Monday 4th February the Tribunal released the Ngāti Kahu Remedies Report, and the negotiations team have now done a close reading of the reasoning and commentary behind its recommendations.
The overwhelming flavour of the report are the suggestions of pragmatism and compromise which the Tribunal says guided the Crown, the other iwi and now itself in its non-binding recommendations.
Following are the main points identified thus far, with a summary initial analysis of each:
RECOMMENDATIONS ARE NON-BINDING
The first point of note is that all the Tribunal's recommendations are non-binding which means the Crown can ignore them. This is very disappointing but totally understandable. Since 1997 the Tribunal has lived with the constant threat that if it ever issues binding orders, the Crown will change the law to remove its powers. This threat is part of the literature and was covered by Paul Hamer in his article 'A quarter-century of the Waitangi Tribunal: Responding to the challenge' which appears in the book, ‘The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi.’
The threat itself is a clear breach of the rule of law and seriously undermines the Tribunal’s credibility. Nevertheless the Tribunal generally produces useful reports. It remains to be seen how useful this report will be.
PARTIAL SETTLEMENT IS POSSIBLE
In a major departure from past reports, the Tribunal says in this report that, while a complete settlement between Ngāti Kahu and the Crown is preferable, it recommends 2 options for settlement. One which is based on the pre-1865 breaches the Tribunal found to be well founded in its 1997 report. These recommendations are in line with Ngāti Kahu’s deed of partial settlement which the Crown had earlier rejected. The second is based on a full and final settlement of all Ngati Kahu treaty claims (both pre- and post- 1865) which effectively adds 10% to the earlier settlement proposal.
The report does not, and cannot, mention the third logical option, the one clearly mandated by Te Tiriti o Waitangi - that Ngāti Kahu repossess lands stolen from us. Although current law and constitutional arrangements in this country effectively prevent the Tribunal even considering this last option, it remains a real option for Ngāti Kahu.
LAND TAKEN - LAND RETURNED
This Tribunal was able to draw on its predecessor's 1997 Muriwhenua Report in which it had found that 66,439.878ha (70% of Ngāti Kahu's lands in the remedies area) had been wrongly claimed by the Crown and were in fact still Ngāti Kahu's. A further 25% of Ngāti Kahu's lands in that area were stolen after 1865.
Now, this Tribunal has made specific recommendations over approximately 24,500ha (37%) of those lands in the remedies area, and has indicated that almost 12,600ha is exclusively Ngāti Kahu's and should be returned to Ngāti Kahu, while the balance should be shared with one or more other iwi. Interestingly, a number of these balance lands are not included in other Te Hiku o Te Ika iwi deeds of settlement. So, once again, they stand to benefit from Ngāti Kahu's work.
The Tribunal has also provided very detailed lists of each and every block of land it has made recommendations over. These lists provide clear descriptions for each hapū of which parts of their lands the Tribunal has told the government it is to now relinquish. It includes most, but not all, of our major wāhi tapu. We note that each hapū can now repossess their lands in the knowledge that they have two Tribunal reports confirming that those specific lands are theirs.
Interestingly these lists were originally provided to the Tribunal by the Office of Treaty Settlements (OTS) when the Tribunal picked up that there were major discrepancies between what they claimed they had offered Ngāti Kahu in negotiations, and what they had actually offered – which was a lot less than what is now in these lists.
However Ngāti Kahu cannot trust that these Crown lists include all the land the Crown has stolen from Ngāti Kahu. So our team are carefully comparing these lists with those contained in the Yellow Book (the Ngāti Kahu Settlement Package) which was compiled by each Ngāti Kahu hapū from 1997 onwards and constitutes their instructions to Ngāti Kahu's negotiations team.
Additionally it's clear that the OTS lists used by the Tribunal do not include land for every single hapū. Although they appear to be very similar to those in the Ngāti Kahu draft deed of partial settlement (DoPS), the team have already picked up the following lands that are in the DoPS and are not in the Tribunal lists:
• Whakaangi (which we agreed with Whangaroa we would wait till they were ready)
• Most of Ōtangaroa forest (we included the entire forest in our DoPS because some of Whangaroa told us they didn't want it - that has now changed)
• Takahue forest
• Metservice (Ōkahu Rd)
• Kaitāia pound
• Takahue cemetery
• Takahue training camp (the present day marae site).
• Most of Maungataniwha (although the report recommends negotiations between Ngāti Kahu, Ngāpuhi and Te Rarawa and the Crown for the return of those lands).
There may be more.
We have also yet to complete a check for lands that have been added into the OTS lists that aren't in the Ngāti Kahu DoPS, and we're still working on that as well.
Additionally the Tribunal says it deliberately left out some of the properties on the OTS lists because they were outside the remedies area it was covering. But it notes that the Crown can still return them to Ngāti Kahu.
LANDCORP AND FOREST LANDS
Regarding Rangiputa and Kohumaru farms, the Tribunal has recommended they be returned to Ngāti Kahu to hold for all the hapū, rather than to Ngāti Tara and Te Paatu. Likewise it has recommended that the Kohumaru blocks within the Ōtangaroa forest be returned to Ngāti Kahu, rather than kept intact as part of the Ōtangaroa forest for the Whangaroa claimants, who will be able to still claim the larger remaining blocks.
STATUTORY BOARD AND RIGHTS OF FIRST REFUSAL
The Tribunal also recommends that the Ngāti Kahu Statutory Board over those lands administered by DoC be set up, and that Ngāti Kahu be given exclusive Rights of First Refusal for 172 years over almost all those lands that aren't returned to it immediately by the Crown.
PARTIAL SETTMENT NOT DEPENDENT ON CROWN TERMS
And in another departure from past reports, the Tribunal also suggests a partial settlement should still be completed, even if Ngāti Kahu and the Crown can't agree on an 'historical account', Crown 'acknowledgement' of Treaty breaches, and Crown 'apology'.
This is important because these are Crown terms which the Crown has used in the past to force claimants to cede their rangatiratanga as a condition of settlement; something which has always been a deal breaker for Ngāti Kahu.
The Tribunal picked up on the Ngāti Kahu evidence to it that 'acknowledgments', 'historical accounts' and 'apologies' are totally meaningless if not preceded by a total return of all Ngāti Kahu land without encumbrances and laws that prevent it ever being stolen again – another reason why Ngāti Kahu insisted that settlement could only be partial.
NO COMPENSATION AWARDED
At the same time, the Tribunal has refused to recommend any compensation in this report. However Ngāti Kahu have consistently focused on land rather than money, and this is not a deal breaker. Additionally the lack of compensation has contributed to the Tribunal’s recommendation that any settlement could only be partial.
CROWN RANSOM REDUCED
To accommodate the Crown's ransom demands for lands it relinquishes in any settlement, the Tribunal recommends that it make $20.736m cash available to Ngāti Kahu to pay that ransom. That’s 10% less than the $23.304m offered in 2008. But again this is to accommodate the partial nature of any settlement. Additionally, as the Tribunal makes clear in its recommendations, the amount of ransom to be paid would also be significantly reduced.
Regarding the ransom for the Rangiputa block, the Tribunal has specified how it should be valued and takes it down from the $4.1m Ngāti Kahu agreed to pay in 2008, to either $3.6m if Ngāti Kahu reserve it from sale for 50 years – or $1.8m if Ngāti Kahu agree to make it inalienable in perpetuity. Recommending that land be made inalienable in perpetuity is another first from the Tribunal, and is another point which is in line with the Ngāti Kahu DoPS. However, the Tribunal leaves Kohumaru with a ransom of $0.68m.
Regarding the forest lands, the Tribunal has identified the value for this component of any Ngāti Kahu settlement as being $1.665m, but has recommended that the ransom monies for these be less than that because of the very small and unfair amount of forest being relinquished to Ngāti Kahu. It also recommends payment of 20% of accumulated rentals be made to Ngāti Kahu, being $2.27m from Aupouri State Forest and $0.38m from the Kohumaru blocks within Ōtangaroa State Forest.
Regarding the rest of the Ngāti Kahu lands in the lists, the Tribunal makes no recommendations on the ransom monies for them.
Towards the end of its recommendations the Tribunal includes one for a "cultural redress payment" of between $380,000 and $2.4m to Ngāti Kahu. It seems to have premised this on the fact that in their deeds of settlements Te Aupōuri got $380k, Te Rarawa got $530k and Ngāi Takoto got $2.4m.
It also recommends that any redress offered for Te Oneroa a Tōhē also include a one-off payment of $137,500 to Ngati Kahu, and if Ngati Kahu and Ngati Kurī agree to join the Board then the $400k set up contribution from the Crown should be increased.
Regarding the Crown's Social Accord, the Tribunal recommends that a one-off payment of $812k be made to Ngati Kahu to be part of that.
And finally, the Tribunal recommends that the Crown "maintain flexibility" in developing cultural redress offered to Ngāti Kahu.
In conclusion, the Ngāti Kahu Remedies Report will be further analysed, considered and discussed by Te Rūnanga-ā-Iwi o Ngāti Kahu at their next hui-ā-marama on Saturday 23 February 2012, and they will respond after that.
In the meantime the report is now available to you on the links below which have been separated to accommodate the size of the document. The main part of the report, the recommendations, are in chapter 8 on page 178 of the report. You can find these in Part 4 below starting at page 33 of of that Part. Part 5 contains the schedules of lands to be relinquished by the Crown. The full report has also been posted to the Ngāti Kahu wesbite on http://www.ngatikahu.iwi.nz/node/1781 :
The judge writing this report is the same judge who was reprimanded by the Supreme Court for denying the Mangatū Incorporation the right to a hearing for binding recommendations. This report reflects his on-going antipathy to the Māori legal right to binding recommendations. What also becomes clear is that the Tribunal is shying away from interrogating the constitutional basis of this country despite the obvious damage it has done and is continuing to do to Māori. In doing so it shies away from the very reason for its existence – Te Tiriti o Waitangi.
Under New Zealand law, non-Māori are entitled to access to the courts to determine damages and restitution where their property has been wrongly taken. The Waitangi Tribunal in its 1997 Muriwhenua Land Report found that most of Ngāti Kahu’s land had been wrongly acquired by the Crown. However the 2013 Tribunal report makes it clear that because of current government policy, Māori cannot expect the same legal entitlements as non-Māori. I find it very interesting that this particular Tribunal goes as far as saying that to make such provision would overturn current constitutional principles in this country. What is incontrovertible is that those principles as they currently exist do not derive from or give any cognizance at all to Te Tiriti o Waitangi. For the Waitangi Tribunal, as a Commission of Inquiry, to unquestioningly accept them, as it does in this report, not only shows lack of intestinal fortitude, it also poses a serious threat to its credibility.
Yet what I also find most interesting about this report is that although it disregards large parts of our evidence, misreports and misinterprets many key parts and launches a number of vitriolic attacks on the application (and on Ngāti Kahu for daring to bring the application), in the final analysis its recommendations actually support Ngāti Kahu. Its recommendation for a partial settlement that requires the Crown to relinquish important tracts of Ngāti Kahu land and provide money to buy others means that without saying so the Tribunal has supported our Deed of Partial Settlement.
What now remains to be done are four things:
• First, we will wait to see whether the Crown is going to (a) ignore the Tribunal’s recommendations and continue to insist on a settlement that is a full and final extinguishment of all Ngāti Kahu claims or whether (b) it will offer a partial settlement of our land claims in line with what the Tribunal has recommended. We have already indicated to the Crown that we are not interested in the first approach and will only talk to them on the basis of the second.
• Second, we will need to consider any offer that may be made – although it is not clear yet whether that will happen.
• Third, we need to then consider all our options, including repossessing our lands.
• Fourth, we need to complete and publish our Deed of Partial Settlement, incorporating all the Ngāti Kahu evidence provided to the Tribunal, in order to correct the serious misinformation and misinterpretation contained in the Tribunal’s report.
2. Constitutional Transformation Working Group
This working group, set up by National Iwi Chairs’ Forum and led by Moana Jackson and me, has been addressing the exact constitutional inequities and inadequacies that the Waitangi Tribunal’s report has highlighted. The fact that Māori have no constitutional security in this country was one of the very serious concerns expressed in the two reports issued by two different special rapporteurs from the United Nations in 2006 and 2011. The hostility and vehemence of the Tribunal’s and the Crown’s reaction to Ngāti Kahu formally challenging the legitimacy of those constitutional arrangements signals how unsafe they are for Māori. The same challenge has been posed by Ngāpuhi and it will be interesting to see if that Tribunal is as hostile to their claim for He Whakaputanga o te Rangatiratanga o Nu Tireni and Te Tiriti o Waitangi to be recognized as the constitutional basis of this country. Certainly the Independent report from those hearings, Ngāpuhi Speaks, overwhelmingly supports such recognition.
What this highlights is the importance and urgent nature of the work of Matike Mai Aotearoa – The Constitutional Transformation Working Group. Work on drawing up a model for a written constitution that would see an end to such discrimination is progressing well. Over 100 hui have been conducted throughout the country to establish the principles that will underpin that model. Moana Jackson has lead almost all of those with rangatahi groups around the country conducting a further 27 hui. I have been involved in 20 of the hui.
The hui have all confirmed that the current constitutional arrangements are severely detrimental to Māori and cannot remain as they are. There is broad agreement that transformation is needed and that the values that underpin Māori society such as mana, tapu, whanaungatanga, manaakitanga, kaitiakitanga have broad application and can underpin a written constitution based on He Whakaputanga and Te Tiriti.
The Working Party will complete its initial round of hui in Ngāi Tahu, Ngāpuhi, Whanganui and Te Tau Ihu (Top of the South Island) by the end of April. Analysis on the questionnaires completed at each hui is underway. In May we will start work on the model for a constitution and completing the analysis of the discussions in hui and the questionnaires. A further round of hui will be needed to take the model to the people. Our final report is due with the National Iwi Chairs’ Forum by November this year. After that we are hoping that the country as a whole will enter into a long, informed and thoughtful discussion and debate on future constitutional arrangements for this country and that it will be led by whānau, hapū, iwi and other Māori groups throughout the country.
Professor Margaret Mutu
16 February 2014