Te Rūnanga-ā-Iwi o Ngāti Kahu Land Claims Report for August 2015
1. Ngāti Kahu wins in the High Court
2. Hui-ā-iwi of Ngāti Kahu on land claims confirms mandate to progress claims
3. OTS and government officials still causing problems
4. Progress with publication of Deed of Partial Settlement
5. Ngāti Kahu Trust Board Litigation Against Ngāti Kahu Mortgage Services
6. National Iwi Chairs Forum hui at Hopuhopu 6-7 August
Summary
· We won in the High Court on our application for a judicial review of the Waitangi Tribunal’s report declining to give us binding recommendations. The High Court has ruled that the Waitangi Tribunal made errors of law in reaching its decision and must hear our application again.
· A very well attended hui-ā-iwi held on 8 August 2015 at Tātai Hono marae in Auckland confirmed the Rūnanga’s mandate to keep progressing Ngāti Kahu’s land claims and to reject the Crown’s offer to extinguish all our treaty claims.
· Senior OTS staff and other government officials’ interference in Ngāti Kahu’s land claims trying to stop us seeking binding recommendations has resulted in the Minister of Treaty Negotiations sending a letter asking whether the Rūnanga still holds the mandate to negotiate Ngāti Kahu’s claims. A lengthy response was sent which demonstrated the strong mandate the Rūnanga has from whānau, hapū, marae and claimants.
· We are working with Huia Publishers to prepare our Deed of Partial Settlement for publication.
· Ngāti Kahu Trust Board’s litigation is progressing towards settlement
· Tainui hosted National Iwi Chairs’ Forum on 6-7 August and ensured that Ngāpuhi did not continue using the Forum to attack Ngāti Hine.
1. Ngāti Kahu wins in the High Court
On 12 August the High Court in Wellington released its decision on our application for a judicial review of the Waitangi Tribunal’s refusal to order binding recommendations for the return of our lands. We won the case and the court has ordered the Crown to pay our costs.
The High Court found that the Tribunal was wrong to treat binding recommendations as if they could only be used as a last resort. He also said the Tribunal was wrong to not consider ordering the return of some of the land we sought rather than all of it.
However although we won on these grounds, the judge got it wrong on some of the other grounds we asked him to consider. In particular he said that even though the Tribunal got it wrong this time, they could end up still refusing to make binding recommendations. We consider that is wrong. He also muddled up the rentals we are owed from our Crown Forest lands and the compensation that must be paid once binding recommendations are made. He wrongly thought they were the same thing. He also assumed that the Waitangi Tribunal had got facts he quoted from their report right when many of them are wrong. And he misunderstood how the Tribunal deferred to the government’s settlement policy, missing the fact that they asked the government what they were prepared to offer and then used that to make its decision.
The decision does highlight the judge’s concern about the government abusing its powers in the settlement process. For example he says
Given all the power to effect a settlement by transferring land and paying money rests with the Crown, there is arguably a significant power imbalance if the Crown is able to hold out on any partial settlement until Ngāti Kahu accepts the Crown’s full and final settlement, despite Ngāti Kahu having undetermined claims for further grievances alleged to arise in the period since 1865 (paragraph 57 of the decision).
And then
…the Tribunal recognized that redress for Ngāti Kahu was overdue, and that partial settlement was not possible because the Crown insisted only on a full and final settlement. In these circumstances, arguably the Tribunal ought to have considered the case for binding recommendations in relation to parts of the lands sought to prevent the Crown exploiting its power imbalance by pressuring Ngāti Kahu to abandon its later claims for the sake of achieving control now over assets it is inarguably entitled to (paragraph 84).
The decision then leaves the final say on what is to happen to the Tribunal decision to Ngāti Kahu. The judge will order the Tribunal to rehear our application for binding recommendations if that is how we wish to proceed. Now that the claimants, the marae and our most recent hui-ā-iwi have all rejected the government offer and instructed that binding recommendations be pursued, we will be directing the High Court to make that order.
2. Hui-ā-iwi of Ngāti Kahu on land claims confirms mandate to progress claims
The hui-ā-iwi held at Tātai Hono marae on 8 August to update the people on the claims was very well attended, including many rangatahi. Whānau from at least 11 marae attended. We went over the 30 year history of the claims taken to the Waitangi Tribunal. We also went through the Crown’s offer it made in 2013 to fully and finally extinguish all our claims. Many questions were asked and there was lots of discussion. Whānau from Haiti-tai-marangai and Kauhanga marae were particularly upset that their marae had made decisions about the claims without their knowledge. Whānau from Parapara marae were also present and supported the unanimous resolution that the negotiating team keep progressing the claims in the way we are. The hui also unanimously confirmed the resolution of the Rūnanga to reject the government offer and accept a partial settlement along the lines set out in our Deed of Partial Settlement.
We will discuss holding another hui-ā-iwi at home at our up-coming Rūnanga hui.
3. OTS and government officials still causing problems
Last month I reported that Office of Treaty Settlement (OTS) workers were trying to find ways to get people other than the mandated negotiators to accept the Crown’s offer to extinguish all Ngāti Kahu’s claims. That has included using employees from other government departments to provide wrong information and to spread false rumours about our claims and our negotiations team.
Immediately after our last monthly hui we received a letter from the Minister of Treaty Negotiations, Chris Finlayson, claiming that the mandate of the Rūnanga to represent Ngāti Kahu’s claims was no longer supported. He claimed to have 4 letters of complaint and ordered us to respond within 14 days.
We in turn ordered him to send us the letters. He sent only 3, with 2 coming from the same person. One letter proved conclusively that the Office of Treaty Settlements has been telling people how to try and get their own mandate so that they can do whatever OTS wants them to do with Ngāti Kahu’s claims. The person writing the letter claimed to be speaking for several hapū (including mine) and said that the claimants (which includes me) are happy to do what OTS says. This person has a long history of writing letters claiming to speak for others when he has no authority to do so. He has been reprimanded repeatedly for doing this.
Once we had the 3 letters and then had our hui-ā-iwi we sent a very long and detailed response answering every point raised and demonstrating conclusively that the Rūnanga’s mandate has very strong support, especially for 13 Ngāti Kahu iwi and hapū claims registered with the Waitangi Tribunal and the numerous other whānau and hapū claims that we are specifically mandated to pursue. They are all detailed in our Deed of Partial Settlement. We reminded the Minister that we only pursue claims we are mandated to pursue and that we have always supported the right of any claimant to pursue their own individual claim if they wish to do so. We also laid an official complaint against the Office of Treaty Settlements for interfering in our claims and demanded a response within 7 days.
Despite using its huge resources and putting up a strong fight against Ngāti Kahu in the High Court, the government lost. They will be very unhappy about that and we know that OTS will push even harder now to justify by-passing the mandated negotiators in order to achieve the settlement they want. So we doubt that our response will be the end of this matter.
4. Progress with Publication of the Deed of Partial Settlement – Ngāti Kahu: Portrait of a Sovereign Nation
Huia Publishers has indicated that our finalized manuscript along with all the maps and photographs need to be in to them by December this year in order to have it published in 2017. The owners of the Māori Maps website have agreed to let us use several of their photos of our marae – most of them are much better than the photos we have although the photos of Aputerewa, Haiti-tai-marangai and Te Paatu marae are now out of date. Anahera will be coming around to do photos for each hapū and it would be good to include whānau in those photos wherever we can.
I’m working through the revisions Huia Pacey has made to the maps and still working on finalizing the text. Thanks to everyone who has got their amendments to me. Please can I have any other changes people want made as soon as possible but no later than the end of October.
5. Ngāti Kahu Trust Board v Ngāti Kahu Mortgage Services Ltd
There has been good progress on reaching agreement on this matter.
6. National Iwi Chairs Forum
Anne Batistich, Archdeacon Timoti Flavell, Hohepa Rameka, Anthony Housham and I attended the Forum hui hosted by Tainui at Hopuhopu. It was well attended and we got through a lot of business.
During the mihimihi Sonny Tau attempted to make light of the charges against him for being in possession of kukupa. Tainui responded swiftly telling him there would be no discussion on that matter at the hui. They then went on to tell Mr Tau that Ngāti Hine was present at Tainui’s invitation and despite Ngāpuhi’s move to evict them at the last Forum hui, they would be staying and there would be no discussion about that either. We noted that this was a very positive start to the hui. We talked at length with Waihoroi Shortland (Ngāti Hine’s chair) during the breaks and he let us know how angry he had been at Sonny Tau’s attempt to evict them.
Local Government New Zealand attended and a memorandum of understanding was signed which looks to build strong working relationships between iwi and local government. We noted the absence of any Taitokerau councils.
The Auditor-General attended to talk about her investigation of the Whānau Ora programme. She considered it to be a very good initiative that has delivered some excellent results to whānau in spite of the inadequate funding the government had put into it. She was very critical of the way in which Te Puni Kōkiri had spent far too much money on administration and consultants instead of making sure the money was spent on whānau who needed it. She was also very critical of other government departments for refusing to move away from their entrenched and unhelpful ways of dealing with Māori in order to allow the initiative to be properly implemented. Her report indicated that government servants were actively trying to sabotage the initiative. It confirmed what Iwi Chairs know about the programme and confirmed that removing its implementation from government departments (as has been done) was the right approach to take. However more of the funding that has been allocated to the programme needs to go to those delivering services to the whānau.
Sir Toby Curtis requested funding so that Māori sports teams can compete in their own right, especially internationally.
On the review of Te Ture Whenua Māori, it appears that the Minister of Māori Development, Te Ururoa Flavell, has ignored all the hui we had and the advice provided and is essentially doing whatever Chris Finlayson tells him to do. He is taking the same approach on the Monitoring Mechanism that reported to the United Nations last month that the New Zealand government has made no attempt to implement the United Nations Declaration on the Rights of Indigenous Peoples. The Prime Minister delegated responsibility to meet with the Monitoring Mechanism to Finlayson, relegating Te Ururoa Flavell to a secondary role. The Monitoring Mechanism does not wish to meet with Finlayson because he has already said in a letter to Te Hiku iwi that he refuses to allow the declaration to be implemented. Yet, incomprehensibly, Te Ururoa Flavell supports Finlayson being the lead minister on the implementation of the declaration. It is very disappointing to see Te Ururoa Flavell’s unwillingness to defend Māori rights.
Moana Jackson is progressing writing up the model for a constitution. He sent through the list of topics he will be covering in his final report.
Sir Tumu Te Heuheu reported that there is good progress in discussions with government on Māori rights and interests in freshwater. Harry Burkhardt (Ngāti Kurī) told Bill English (deputy Prime Minister) and Nick Smith (Minister of Housing) who attended briefly on the second day that they needed to learn to share power and to talk about it without scaring people. They were also told that we must see the Trans Pacific Partnership Agreement (TPPA) before it is finalized and that they must honour the right of first refusal provisions in settlements and stop trying to by-pass them to sell land in Auckland.
Marae Melbourne reported on progress with planning to build a marae in Melbourne. A number of rangatahi attended from several iwi and they gave a good presentation at the end of the hui.
Professor Margaret Mutu
22 August 2015