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November - December 2009

Submitted by admin2 on Wed, 16/12/2009 - 6:53pm

Te Runanga-a-Iwi o Ngati Kahu

Land Claims Report for November 2009


  1. Forum hui 27 November
  2. Forum’s Mana whenua process


Most of the activity on land claims this month has been carried out by Te Kani Williams and Bernadette Arapere as they work with the Chief Crown Negotiator, Pat Snedden, on the Agreement in Principle to settle the shared interests of the five iwi of Te Hiku o Te Ika. There remain areas of disagreement which still have to be resolved before the AIP is acceptable to the Forum, and before it can be circulated for directions from the iwi. There was one hui of the Forum on 27 November, which I did not attend because I was on leave. Some serious issues which would impact seriously on Ngati Kahu arose in that hui which necessitated an urgent teleconference of our negotiations team on 30 November. A teleconference of the Forum was then convened on 3 December to seek to resolve those issues and a further meeting was set down for 8 December at the Jet Inn in Mangere, Auckland.


1.    Forum hui 27 November

This hui took place in Kaitāia. Te Kani and Lloyd attended with Alan Hetaraka and Anahera Herbert-Graves, although the passing of our whaea, Jane Marsden, meant that Lloyd had to leave early and that Ngai Takoto could not attend.


Issues that could impact very negatively on Ngati Kahu were raised after Lloyd left. Te Aupouri was asking that in respect of Te Aupouri forest that they by-pass the mana whenua process and have most of the lands under the forest transferred to them and Ngati Kuri directly. Last month I circulated the paper about how the mana whenua process would be carried out in order to determine exactly who holds mana whenua and where, and hence the iwi to whom the various lands must be transferred back. We do need to indicate to the Forum whether the paper is acceptable to Ngati Kahu or whether we require some changes (see item 2 below). We have indicated by email this week and then on the teleconference that we will not allow the mana whenua process to be circumvented. Ngati Kahu has instructed that all iwi must demonstrate how and where they hold mana whenua in respect of the forest and Te Oneroa-a-Tohe.


Te Aupouri also asked that the previously agreed equal distribution of the accumulated forestry rentals (about $10m) be changed to give Ngati Kahu much less because, they asserted, we do not hold mana whenua in the forest on the northern peninsula. Te Paatu strongly refute that assertion. Then it was further suggested that the revolving chair on the statutory board for Te Oneroa-a-Tohe not include Ngati Kahu because, they again asserted, Ngati Kahu does not hold mana whenua on the beach. Once again, Te Paatu has always and will continue to refute that assertion. Hence the fundamental need for the mana whenua process to take place, and, as soon as possible.


Then the Crown pushed for the Agreement in Principle (AIP) between the five iwi and the Crown to be signed on 17 December. The AIP is still being drafted and argued between our lawyers and the Crown. I have yet to see a final version that our lawyers are OK with. Yesterday Te Kani provided the Negotiations Working Party of the Forum with a list of 24 bullet points of changes needed to the present version of the AIP. By last evening he had had lengthy discussions with the Chief Crown Negotiator and the list has reduced to seven and a half points which are unacceptable. Until such time as Te Kani can advise us that the AIP meets our requirements, I do not intend to waste time going through the various drafts. Once he does, our team will check to see if it meets Ngati Kahu’s requirements. Once we’re satisfied, we’ll circulate it to the marae for your instructions on whether or not Ngati Kahu is to sign the AIP.


I think it is very clear that all this cannot be done by 17 December – in less than a fortnight. Yet some Forum members considered that we should do so because that is what the Crown wants. It seems that not all the negotiators for other iwi consider that they need the fully informed approval of their iwi before they sign an AIP. It took some arguing before we all eventually agreed that there will be no signing of the AIP on 17 December. We will, nevertheless, keep working towards reaching a version of the AIP that we can circulate for instructions. Hopefully that will be before Christmas. We will then call hui in January 2010 for whanau, hapu and iwi to provide their instructions to the negotiators.


As such the Negotiations Working Party will meet at 6pm on 8 December at the Jet Inn in Mangere, Auckland to see how far we can progress both the AIP and the issues between us as iwi over this part of our settlement.


2.    The Forum’s Mana Whenua Process

The following is lifted from my report last month as we need to make a decision on whether the process proposed is acceptable.


The mana whenua sub-committee reported back on its determination of what the mana whenua process is to be. Its report was accepted in principle for reporting back to and acceptance by each iwi. That report is appended to this report.


While the report covers several aspects of the process well, the key aspect of deciding how mana whenua is finally determined is left unaddressed. This is a serious gap in the report. There are also some other problematic aspects and I urge everyone to please read the report and give us feedback either through your delegates or directly to the negotiations team or the office.


In respect of finally determining mana whenua, the elements that contribute to this are listed at section 7.1 of the report. They are take taunaha (right of discovery, naming of unclaimed whenua), take raupatu/ringa kaha (conquest), ahi kaa roa (continued occupation), take tuku (gifting by the hapu recognized as having mana whenua), and take tupuna (inheritance from tupuna having mana whenua).


It is fundamentally important to the success of this process that the relative weight of each of these elements is clear. For example take tuku alone is not a claim to mana whenua. Take tupuna accompanied by ahi kaa roa provides a strong claim and displacement from or confiscation of those lands by Pakeha/Crown does not diminish such a claim. Take taunaha accompanied by ahi kaa roa is also very strong. Take raupatu/ringa kaha is only strong if those defeated in conquest relinquished their mana whenua and no longer feature in any way in respect of those lands. There is much debate surrounding these various take so we need clear direction on how to apply them if this process is to be successful. PLEASE CAN WE DISCUSS HOW THESE SHOULD BE APPLIED IN THE PROCESS.


Another problematic area is clause 8.1(b) which excludes lawyers from participating. That is counter-productive. While lawyers should have no input into the determination of mana whenua as that must be done according to tikanga, they should be present to know how the final decisions were reached. That will be crucially important for the drafting of the final Deed of Settlement and the legislation.



Professor Margaret Mutu

4 December 2009