Te Rūnanga-ā-Iwi o Ngāti Kahu
Land Claims Report for October 2012
1. Hearing for applications for urgent hearings against Te Aupōuri, Te Rarawa and Ngāi Takoto Deeds of Settlement declined
2. Judicial review being considered
3. Waitangi Tribunal’s decision on our application for binding recommendations is still being awaited.
4. Signing of Deeds of Settlement of Ngāi Takoto and Te Rarawa 27 and 28 October causing major concern
Summary
• The Waitangi Tribunal has declined our urgent applications against the Deeds of Settlement of Te Aupōuri, Te Rarawa and Ngāi Takoto on grounds that include that this Tribunal is of the view that the Crown determines the content of Treaty of Waitangi settlements and has done so in this case. The Tribunal tells us to wait for their decision on our application for binding recommendations in respect of our lands in Kaitāia and Takahue and to negotiate with the Crown over the loss of our forest and farm lands at Hukatere and Te Make.
• We have received legal advice that the Tribunal’s decision is wrong on several counts and should be reviewed by the High Court.
• The Waitangi Tribunal has not yet reported on our application for binding recommendations over 7500 hectares of our lands.
• In respect of our remedies application, Ngāti Tara, Te Paatu ki Pēria and Graham Latimer have now adjourned their applications for binding recommendations over Rangiputa Station after the Tribunal warned that their dispute with Te Rūnanga-ā-Iwi o Ngāti Kahu could mean that the Crown keeps Rangiputa. Te Rarawa however is continuing with their application for binding recommendations over Ngāti Kahu’s lands.
1. Hearing for applications for urgent hearings against Te Aupōuri, Te Rarawa and Ngāi Takoto Deeds of Settlement declined
On 10 October the Waitangi Tribunal issued its 40-page decision on these applications, declining all three of them. These applications were made to ensure that Te Paatu hapū lands in the forest at Hukatere, in the Sweetwater farm at Te Make and Tangonge, Ngāi Tohianga hapū lands in Kaitāia and at Tangonge and Tahaawai hapū lands at Takahue were not vested in Te Rarawa, Ngāi Takoto and Te Aupōuri alone. The applications were made to stop the Crown excluding Ngāti Kahu from our own lands. This involves many thousands of hectares of Ngāti Kahu lands that we share with Ngāi Takoto and Te Rarawa (but not with Te Aupōuri).
The key and overwhelming reason given by the Tribunal several times in the decision for declining the applications is that it considers that when it comes to deciding the content of Treaty of Waitangi settlements with Māori, it is the Crown who determines what those settlements will be. This is clearly and demonstrably a wrong assumption to make. It is also grossly unfair and unjust. What the Tribunal is doing is condoning the Crown, who has already been found guilty of stealing our lands and resources, asserting that it can determine what it can keep of what it stole, what it can choose to sell back and to whom it can choose to sell it. The Tribunal goes on to say that provided the Crown can show it took all information it had into consideration (which included our Deed of Partial Settlement) it can then choose to ignore that information if it wants to and effectively, do whatever it chooses to do. The Tribunal knows that this will upset those whose lands have been stolen from them and are now being sold to others and even goes as far as quoting a passage which says “groups of Māori will inevitably be annoyed, disappointed, hurt, sad and even angry”.
In its decision the Tribunal acknowledges that Ngāti Kahu are mana whenua at and around Hukatere (which the Crown has decided to vest in Te Rarawa, Te Aupōuri and Ngāi Takoto). It also acknowledges that Ngāti Kahu is mana whenua at Kaitāia, Tangonge and Takahue (which the Crown has decided to vest in Te Rarawa). But it goes on to say that the Crown knew that and still decided to exclude Ngāti Kahu and that the Crown can do that if it wants to.
The Tribunal considers there is no prejudice to Ngāti Kahu because it can go back and negotiate something different with the Crown in respect of Hukatere and Sweetwater. That is clearly wrong. Once the Deeds of Settlement of Te Rarawa, Ngāi Takoto and Te Rarawa are legislated, Ngāti Kahu will not be able to recover those lands.
In respect of Takahue and Kaitāia, the Tribunal says wait for their decision on our remedies application. That is also clearly wrong. Having spent this whole decision saying only the Crown decides the content of settlements and that the Tribunal cannot interfere, there is little if any likelihood that this particular Tribunal will order any of those lands to come back to Ngāti Kahu.
In essence what this decision says is that this Tribunal will not uphold our rights under Te Tiriti o Waitangi when it comes to returning lands that have been proven to have been stolen. It has instead said only the Crown can determine that. As such the Tribunal has kowtowed to the Crown.
We do need to remember that the Tribunal is, in effect, an arm of the Crown. However and more importantly the Tribunal is totally at the mercy of the Crown for its survival. It has been threatened several times now that if it upsets the Crown it will either lose its powers or be abolished. Despite the fact that such threats by the Crown are a gross violation of the rule of law, they have undoubtedly influenced this Tribunal in reaching what is clearly a wrong decision.
2. Judicial review being considered
Your land claims team is naturally extremely disappointed with this decision. We are not surprised because the judge, Stephen Clark, has made a similar decision previously and been overturned in the Supreme Court (in the case of the Mangatū Incorporation versus the Waitangi Tribunal).
The legal advice we have received is that the decision is so badly wrong that it must be reviewed. Each of the hapū directly affected by this decision has instructed us to review the decision. The delegates from Takahue and Ōturu have instructed us to do so in respect of the Takahue, Kaitāia and Tangonge lands. So has Te Karaka Karaka (Hully Clark) who is Te Paatu ki Pāmapūria’s mandated claimant in respect of the Hukatere and Te Make lands. So has Karepōnia’s delegate in respect of Rangiāniwaniwa (which transfers to Ngāi Takoto under their Deed of Settlement).
However an important factor to consider is how this review is to be paid for. Legal aid is not available for reviews. Marae have already been asked to allow their fisheries allocation for 2012 to be used for outstanding costs still owed on Treaty claims work and to cover work we would have to do on these applications. We have asked all marae delegates to bring their decision on this extremely urgent matter to our monthly Rūnanga hui on 27 October. If marae are in a position to notify us earlier than that we would appreciate you calling the office to let Anahera know.
3. Waitangi Tribunal’s decision on our application for binding recommendations is still being awaited.
As indicated above we are still awaiting the decision on our application for binding recommendations for over 7000 hectares of our lands that the Tribunal has the power to order the Crown to return. We do not expect this decision before November.
In the meantime we have received advice that Ngāti Tara, Te Paatu ki Pēria and Graham Latimer have withdrawn their claims to Rangiputa Station and all other Ngāti Kahu lands to be resumed pending the decision of the Tribunal on the remedies application. However it may well be too late to repair the damage that these challenges have done to our application. The Tribunal indicated three times during the hearing and before Ngāti Tara applied for binding recommendations over Rangiputa that their disputes could lead to the Crown retaining those lands.
4. Signing of Deeds of Settlement of Ngāi Takoto and Te Rarawa 27 and 28 October causing major concern
Ngāi Takoto has decided to sign its Deed of Settlement on 27 October at the Kura Kaupapa Māori at Rangiāniwaniwa. That has angered and caused major concern for the Erstich whānau of Patukōraha hapū and they are objecting very strongly to both Ngāi Takoto’s Deed of Settlement and to the signing taking place on their land.
The land at Rangiāniwaniwa was actually confiscated off Kataraina Mātenga during the Second World War for an airport. Kataraina’s children are the Erstich whānau of Patukōraha who still live next door to the present day airport. They were thrown off the land that the airport and the Kura are now on by the Crown. They have instructed that Rangiāniwaniwa be returned to Ngāti Kahu. Katie Evans, Kataraina’s daughter, and Yvonne Pūriri, Kataraina’s mokopuna, presented evidence in our hearings in September on their own marae, Karepōnia about how Rangiāniwaniwa was stolen from them by the Crown and that they want it returned to Ngāti Kahu.
Ngāi Takoto did not question those two kuia. Instead, it had already asked the Crown to sell the land to them and the Crown had agreed. So Ngāi Takoto is not only taking land that belongs to the Erstich whānau, it is also adding insult to injury by conducting the signing of their Deed of Settlement agreeing to that on the very land they are stealing.
Ngāi Takoto has been confronted and ordered to stop what they are doing but they are not listening.
Te Rarawa has agreed to sign their Deed of Settlement at the Far North District Council’s Te Ahu Centre in Kaitāia on 28 October. It is rather appropriate that a Pākehā venue has been chosen given that it is Pākehā who stand to benefit the most from Te Rarawa extinguishing their claims to most of their territories and ceding Te Rarawa’s mana and tino rangatiratanga to the Crown. Unfortunately, included in their Deed of Settlement are substantial amounts of Ngāi Tohianga, Te Paatu and Tahaawai lands belonging to Ngāti Kahu, not to Te Rarawa.
Professor Margaret Mutu
22 October 2012