Ka kuhu au ki te ture hei matua mō te pani

I seek shelter in the law, for it is a parent to the oppressed

- Te Kooti Arikirangi Te Turuki (c.1832-1893)

Monday, August 9, 2010

Latest installment of report on Te Urewera claims


Last week, the Waitangi Tribunal released part II of the pre-publication version of its report on Te Urewera claims.  The first five chapters of this report (as a pre-publication document) were released by the Tribunal in April 2009.  I have referred to some of the content of those first chapters earlier this year in a post relating to Tuhoe’s Treaty settlement negotiations.  The release of this second set of chapters is further illustration of the progress the Tribunal is making in working through historical claims in this type of large-scale district inquiry.  The chapters released last week address a range of significant events and Crown actions, either within or related to the Urewera district, which occurred between the 1860s and the 1950s.  Given the Waitangi Tribunal’s comments in the also recently released report on the Wairarapa ki Tararua claims about the potential of alternative forms of interaction between Māori and the Crown, I thought I would just draw attention to the Tribunal’s treatment of the Urewera District Native Reserve Act 1896.

The Urewera District Native Reserve Act was the result of a negotiated agreement reached between the Crown and Māori leaders of the Urewera region and was designed to recognise real powers of self-government to be exercised by the peoples of Te Urewera and, consequently, the Tribunal suggests that “the Act embodied an arrangement unique in our history”.

The Tribunal identifies the key provisions of the Act as addressing the following matters:
  • Creation of a reserve – The Act set aside 650,000 acres for a reserve that was intended to protect both the natural beauty of Te Urewera and the way of life of the Māori communities in the district.  The land was to be reserved permanently for its Māori owners.  The reserve was exceptional because it would be controlled by the Māori owners through local committees. Each local committee would also elect a member to the General Committee, which was responsible for matters affecting the entire reserve.  The jurisdiction of the Native Reserves Act 1882 was excluded from Te Urewera (under that Act, native reserves were controlled by the Public Trustee). Broadly, land in the reserve was to be inalienable, though, with the consent of the General Committee, land could be alienated to the Crown, and there were also provisions for public works takings.
  •   Title determination – In the discussions between Urewera representatives and the Crown that formed the basis of the Act it appeared that the Native Land Court would not be involved in the determination of land titles in Te Urewera.  Titles were to be determined through investigation by a committee of seven commissioners, five of whom, the legislation specified, were to be members of Tuhoe.  Though, in the form that the Act was finally passed, the Native Land Court was given a role in dealing with successions and appeals from the commission (if referred to it by the Minister of Native Affairs).
  • Individualisation of title – The Waitangi Tribunal was presented with differing views as to whether or not the Act legislated for the individualisation of title in Te Urewera.  Legal historian Richard Boast considered that the effect was clear: “The Commissioners were being required to do no more or less than identify the rights of every single individual of Te Urewera, or, in other words, to completely individualise title to the entire region”.  Others suggested that the certificate of ownership conferred under the Act for the purposes of facilitating the election and running of local committees and that such certificates of ownership did not create individual rights of title in the same form as other native land legislation.  In any case, only the General Committee could alienate land, so, the Tribunal suggests, “the determination of relative interests for individuals did not put ownership of land at risk.”
  • Self-government – Perhaps the most remarkable aspect of the Urewera District Native Reserve Act is its intention to give effect to tino rangatiratanga or mana motuhake.  Both Crown and claimant counsel before the Tribunal agreed that this was a clear objective of the Act.  The Premier at the time, Richard Seddon, is quoted in the Tribunal’s report: “I believe myself, that by leaving these people to manage their own affairs, seeing they are not interfered with and no Europeans are allowed in their midst, they can govern themselves in accordance with their own traditions, and are a people self-contained … I am satisfied that there are exceptional circumstances in connection with Tuhoe, and that those circumstances are favourable to the attempt being made, as provided in this Bill, to give them, in respect to the several matters mentioned in the Bill, self-government.” Unfortunately, the Act’s promise of self-government for the peoples of Te Urewera was never realized.
  • Social assistance – The Tribunal also found that a package of social and economic assistance was part of the agreement between Urewera representatives and the Crown that underlay the Act.  Generally, this comprised commitments to deliver improvements in health, education, farming and other areas of life in Te Urewera.  There may have been some expectation that these matters would be addressed in the Urewera District Native Reserve Act, as part of the set of arrangements relating to land and governance in the district.  But no provision was made in the Act for this form of social and economic assistance, and it is arguable whether such assistance was provided through other mechanisms.

Despite the failure to realise the full potential of the Urewera District Native Reserve Act 1896, let alone the earlier agreements that lay behind it, this piece of legislation, along with the discussions that surrounded it, provides a valuable illustration of the creative ways in which issues relating to Māori self-government have previously been explored.

Monday, August 2, 2010

Wairarapa ki Tararua Report

Towards the end of June this year, the Waitangi Tribunal released its report on the Wairarapa ki Tararua claims.  The report addresses the historical claims that comprised the Tribunal’s inquiry into the Wairarapa ki Tararua district – an area that stretches from Norsewood, to Te Aho-a-Maui (Cape Turnagain) on the east coast, down to Kawakawa (Palliser Bay) southernmost part of the North Island.  This report, therefore, marks the conclusion of another of the Tribunal’s large-scale district inquiries into historical Treaty of Waitangi claims.

People who are familiar with previous Tribunal reports of this nature will have some sense of the dispossession experienced by Māori since the 19th century.  As the Tribunal itself notes “Everywhere you go in New Zealand, the stories of the colonial encounter have much in common”.  Nevertheless, the details of these stories are particular to the communities involved.  The Tribunal identified a number of themes to the claims in this inquiry that were distinctive:
  • “The leasing experiment” – the Tribunal noted the pattern of land-leasing that occurred in the 1840s and early 1850s.  In these arrangements, Māori communities would lease land to sheep farmers, with both parties able to generate reasonable returns.  Significantly, such arrangements did not, of course, entail the complete alienation of Māori land and the Tribunal suggests that this leasehold economy may have provided quite a different basis for colonial interaction had the Crown not intervened.
  • “The komiti nui and what came after” – the komiti nui was a large meeting held in southern Wairarapa in 1853, which the Tribunal identified as pivotal in terms of Māori opinion of both the settler government and the benefits of land sales.  Governor George Grey and Crown land purchase agent Donald McLean both spoke at this meeting.  “They would use images such as a marriage between two peoples, painting a future together in which many good things would flow to Māori completely over and above the purchase price.” McLean subsequently purchased vast areas of land in the district, but the benefits to Māori, spoken of at the komiti nui, were never realised.
  • “Wairarapa Moana” – under the relevant purchase deeds, Māori were to retain control over key waterways, Lake Wairarapa and Ōnoke, which included a significant eel fishery.  Māori leaders pursued virtually every means at their disposal to have their rights to these waters recognised, but were ultimately unsuccessful in this endeavour.  Instead, the Crown awarded them “30,000 pumiceous acres at Pouākani, hundreds of miles from home in another iwi’s rohe”.
  • “The Kotahitanga movement” – Wairarapa chiefs played an influential role in the Kotahitanga movement in the late 19th century, which aimed to develop policies related to Māori, and, in particular, the management of Māori land that engaged the settler state but was driven by Māori.
  • “Te Tapere-nui-ā-Whātonga” – Te Tapere-nui-ā-Whātonga (Seventy Mile Bush) was, at one time, a body of incredibly dense lowland forest.  This area of forest was central to the lives of local Māori.  The government sponsored programme of clearing and felling in the latter part of the 19th century soon transformed this forest.  The consequences were profound for Māori in the area, and even more so for the now extinct huia, whose habitat had been destroyed.
  • “The speed of change” – the Tribunal notes that the speed of these changes in this district was dramatic: “…from the 1850s to 1860s, tangata whenua there went from being landlords who roamed at will through an expansive territory comprising coastal and inland domain to pleading with Government to fulfil promises of small reserves as settlers flooded in to take up all the land the Crown had just bought.”

The Tribunal’s findings and recommendations in relation to Crown actions and the principles of the Treaty of Waitangi are set out in full in Chapter 15 of the report, which is available here.  These include findings that:
  • The Crown did not exercise in good faith its legal right to control all transactions in customary land between British subjects and Māori;
  • Making leases illegal so that Māori had no alternatives to sale if they wanted the benefit of settlement was neither fair nor reasonable;
  • …the Crown’s abandonment of good purchasing practice in the Wairarapa purchases…undermined the capacity of Māori to make informed community decisions.  This was a diminution of te tino rangatiratanga, and breached the Treaty.  The practices described, which were adopted by McLean and continued by his successors, were the antithesis of what was required – that is, a process that provided for free, willing, and informed consent, a fundamental requirement of article 2 of the Treaty…;
  • …in failing to reserve adequate land for Māori, the Crown breached its duty actively to protect Māori interests.  Māori were prejudiced in that the Crown’s meagre provisions effectively precluded their engaging with the settler economy, except as wage labourers and subsistence farmers;
  • …none of the education that the Crown provided met the needs of Māori children…This was a signal breach of promise, given the Crown’s reliances on promises of (inter alia) education as a means of persuading Wairarapa Māori to let the Crown purchase their land, and open up the district to settlement;
  • [citing the Tribunal’s findings in the Central North Island inquiry] In failing to incorporate Kotahitanga into the machinery of the State, and share power with Māori in a meaningful way at the central level, the Crown acted in serious breach of the Treaty;
  • In numerous ways, Māori property rights were overridden, disregarded, and dishonoured during the events that led to the transfer of ownership of Lakes Wairarapa and Ōnoke (and their surrounds) from tangata whenua to the Crown, and Wairarapa Māori subsequently taking ownership of land at Pouākani instead…the Crown’s conduct amounts to a grievous breach of its obligations to act towards its Treaty partner with the utmost good faith...;
  • …the compulsory acquisition of Māori land for public works in Wairarapa ki Tararua breached article 2 of the Treaty of Waitangi.  No acquisitions in the district met the test of being required in circumstances where the national interest was at stake and where there were no other options.

Those are just some of the key findings of the Tribunal in this inquiry, but I would encourage anyone who is interested in these issues to take a look at the full report, which marks a further substantial contribution from the Waitangi Tribunal to the process of addressing breaches of the Treaty of Waitangi and moving towards reconciliation.