Year 174

At this time of year, I like to reflect on the 12 months gone by and take stock of the Treaty relationship. The 174th year of the Treaty of Waitangi saw several important government reviews that address matters directly relevant to the Treaty relationship. It was another busy year in terms of Treaty settlements and some major pieces of settlement legislation were introduced. A well-publicised decision in the Supreme Court re-strengthened Treaty principles. And the New Zealand legal system shows signs of beginning to operate in a more bicultural way.

The year in reviews

2013 seemed to be a year in which a number of important elements of the Treaty relationship were under review in some way or other. 

The Constitution Conversation

Perhaps most significantly, the Constitutional Advisory Panel's report was released. The Panel's terms of reference specifically directed it to consider two areas that specifically relate to Māori:

• The Crown-Māori relationship (essentially, the place of the Treaty of Waitangi); 
• and Māori electoral representation.

The Panel has recommended that the Government:

• continues to affirm the importance of the Treaty as a foundational document
• ensures a Treaty education strategy is developed that includes the current role and status of the Treaty and the Treaty settlement process so people can inform themselves about the rights and obligations under the Treaty
• supports the continued development of the role and status of the Treaty under the current arrangements as has occurred over the past decades
• sets up a process to develop a range of options for the future role of Treaty, including options within existing constitutional arrangements and arrangements in which the Treaty is the foundation
• invites and supports the people of Aotearoa New Zealand to continue the conversation about the place of the Treaty in our constitution.

 As I noted at the time the Panel’s report was released, I am not sure that this really takes us much further in the constitutional conversation, though I believe the Panel was always going to be constrained in its recommendations because of its narrow terms of reference and its politicized origins.

Note that the far more wide-ranging work being undertaken by Matike Mai Aotearoa - the independent working group on constitutional transformation that is being led by Moana Jackson and Margaret Mutu is continuing. This group has conducted over 200 hui around the country between 2012-2013 and is beginning a round of feedback hui with a meeting at Waitangi today.

Te Ture Whenua

Te Ture Whenua Māori Act 1993, which is the key piece of legislation that regulates Māori land, was also the subject of a government review this year. A four-person panel sought feedback in April 2013 on five key propositions:

Proposition 1: Utilisation of Māori land should be able to be determined by a majority of engaged ownersAn engaged owner is defined as an owner who has actively demonstrated their commitment to their ownership interest by exercising a vote either in person or by proxy or nominee. Engaged owners should be able to make decisions (excluding sale or other permanent disposition) without the need for endorsement by the Māori Land Court.
 Proposition 2: All Māori land should be capable of utilisation and effective administrationWhere owners are either not engaged or are unable to be located, an external manager
or administrator may be appointed to manage under-utilised Māori land. The Māori Land Court should have a role in approving the appointment and retaining oversight of external administrators.
 Proposition 3: Māori land should have effective, fit for purpose, governanceThe duties and obligations of trustees and other governance bodies who administer or manage Māori land should be aligned with the laws that apply to general land and corporate bodies. There should be greater consistency in the rules and processes associated with various types of governance structures.
 Proposition 4: There should be an enabling institutional framework to support owners of Māori land to make decisions and resolve any disputesDisputes relating to Māori land should be referred to mediation in the first instance. Where the dispute remains unresolved following mediation, it may be determined by the Māori Land Court.
 Proposition 5: Excessive fragmentation of Māori land should be discouraged.Succession to Māori land should be simplified. A register should be maintained to record the names and whakapapa of all interests in Māori land, regardless of size.

When originally established, the panel was due to report to Government by December 2012. These timelines were extended, but there have been no public announcements on this matter since submissions closed over six months ago.

The  New Zealand Māori Council

The Government also initiated a review of the Māori Community Development Act last year. This is a significant piece of legislation in the context of the Treaty relationship because it is the Act that governs the New Zealand Māori Council and the Māori Wardens. A discussion paper was released in August 2013 presenting two broad options for the future of the New Zealand Māori Council:

• A new refocused national Māori organisation – concentrates on social and economic issues that impact on community development for all Māori; membership, direction and priorities mandated by the community, with robust and transparent measures designed to ensure accountability to Māori; legislation will need to be amended to remove outdated statutory responsibilities; or
• No change – New Zealand Māori Council continues along with the existing statutory responsibilities as outlined in the 1962 Act to:
• consider and discuss matters relevant to the social and economic advancement of Māori;
• promote, encourage and assist Māori to conserve, improve, advance and maintain their physical, economic, industrial, educational, social, moral, and spiritual well-being; and
• collaborate with government departments on employment, education, training, housing and health. 

The paper also sought feedback on the structure of the New Zealand Māori Council and the roles and responsibilities of Māori Wardens and proposals to re-establish Community Officers. Members of the New Zealand Māori Council filed a claim with the Waitangi Tribunal alleging that the process that the Crown had adopted for reviewing this important piece of legislation was in breach of the principles of the Treaty. In December 2013, the Waitangi Tribunal agreed to convene an urgent hearing to hear some aspects of the New Zealand Māori Council’s claim.

  

Treaty settlements

Not only has this been another busy year for groups involved in Treaty settlements, but there have also been some major developments in this area. The number of agreements signed and the progress of settlement legislation through Parliament gives a clear indication of the work taking place in this sector. In a summary written for the Māori Law Review of settlement legislation before the House in 2013, I noted:

Co-governance was a strong theme in settlement legislation this year.  Many bills, especially those dealing with highly-prized waterways or other natural resources, appear to be drawing on some of the core ideas from the Waikato River Settlement.  The Ngāti Hauā and Ngāti Koroki-kāhukura bills directly extend the Waikato River co-management regime.  A number of the bills currently before the House include provision for co-governance mechanisms, not only between Māori and the Crown, but between two or more Māori communities.  Perhaps the most striking example of the creative possibilities of co-governance models is the approach adopted in the Te Urewera-Tuhoe Bill.  In that instance, a governance board is established with members appointed by Tūhoe and the Crown to act on behalf of Te Urewera itself.  And there is also provision within that Bill for other iwi’s interests within Te Urewera.  As this example illustrates, along with many of the other settlement bills introduced this year, Treaty settlements almost always need to take account of complex and inter-locking rights and interests.  The settlement legislation this year covers areas such as the Waikato, Rotorua, and Te Tau Ihu where these inter-locking interests are evident and as more and more settlements are completed we are beginning to see an increasing amount of ‘cross-referencing’ that attempts to capture this complexity.

The arrangements in relation to Te Urewera are amongst the most notable developments in the Treaty settlement arena. As described in the Māori Law Review summary of the Te Urewera-Tuhoe Bill, the key mechanisms are as follows:

Te Urewera is declared to be a legal entity, having all the rights, powers, duties and liabilities of a legal person. The Bill provides that Te Urewera establishment land will no longer be vested in the Crown but will instead will be inalienable and vest in Te Urewera itself.  The rights, powers and duties of Te Urewera are to be exercised on its behalf by a governance body to be established by the Bill, known as Te Urewera Board.  The Board is to provide governance for Te Urewera by undertaking functions such as preparing and approving a management plan for Te Urewera, monitoring the implementation of that plan, making bylaws for Te Urewera, promoting and advocating for the interests of Te Urewera in statutory processes, and a range of similar activities. The Board will initially consist of four members appointed by the trustees of Tūhoe Te Uru Taumata and four members appointed by the Crown.  From the third anniversary of the settlement date, the Board will consist of six members appointed by the trustees of Tūhoe Te Uru Taumata and three members appointed by the Crown. The chief executive of Tūhoe Te Uru Taumata and the Director-General of Conservation will be responsible for the operational management of Te Urewera in accordance with the plan and priorities adopted by the Board.

Water and State-Owned Enterprises

One of the more high-profile Treaty-related developments of 2013 came near the start of the year when in February the Supreme Court issued its decision in New Zealand Māori Council v Attorney-General and dismissed the Māori Council’s appeal in relation to the proposed partial privatisation of Mighty River Power. This meant that the Government could proceed with the sale of shares in Mighty River Power, but the decision also reinforced Treaty principles.  As I noted at the time:

Even though the outcome of the Supreme Court decision is the same as the outcome of the High Court decision, the Supreme Court overrules one key aspect of Justice Ronald Young’s reasoning.  Justice Young found that the proposed sale of shares in Mighty River Power was not subject to an action in judicial review that is based on consistency with the principles of the Treaty of Waitangi.  However, the Supreme Court disagreed, drawing for support on the approach of the Court of Appeal in the 1987 SOE case: 

The Court of Appeal’s recognition that s 9 stated a fundamental principle guiding the interpretation of legislation which addressed issues involving the relationship of Māori with the Crown, must accordingly form the basis of the approach of New Zealand courts to any subsequent legislation requiring that the Crown act consistently with Treaty principles. The judgment gives no support to narrow approaches to the meaning of such clauses. In re-enacting the identical provision to act consistently with Treaty principles, in the mixed ownership companies legislation, Parliament’s purpose is that the Treaty provisions in Part 5A carry the broad meaning, and be given the broad application reflected in the judgments of the Court of Appeal concerning s 9 in the SOE case. The Parliamentary purpose is clear: s 45Q must receive the same interpretation as s 9 of the State-Owned Enterprises Act has received, particularly from the Court of Appeal in the SOE case, and also from the Privy Council in New Zealand Māori Council v Attorney-General (Broadcasting Assets case). Section 45Q brings with it the heritage of s 9 and this Court, reflecting what is the purpose of Parliament, must invest it with equivalent significance. It is on that basis that we address the arguments of counsel concerning the legislation.

Consequently, the Supreme Court determined that decisions in relation to the sale of shares in Mixed Ownership Model companies can be challenged on the basis of inconsistency with the principles of the Treaty of Waitangi.  This is, I think, an important re-strengthening of Treaty principles.

Nevertheless, the Court went on to conclude that, because there was no ‘material impairment’ to the Crown’s ability to recognise Māori rights or provide redress, the sale of shares would not be inconsistent with Treaty principles. 

However, I would venture to suggest that this is not the last we have heard about rights to water.

Steps towards a bicultural legal system?

The past 12 months have also seen some positive developments in the way that the New Zealand legal system engages with the Māori world.

In December 2013, five candidates were admitted as barristers and solicitors of the High Court in a ceremony that was, for the first time, conducted in te reo Māori.

Another first was the enactment of a bilingual statute. The Mokomoko (Restoration of Character, Mana, and Reputation) Act 2013 gives effect to an agreement between the Crown and the descendants of the rangatira Mokomoko for the Crown to obtain both statutory recognition to the free pardon granted to Mokomoko in 1992 and a declaration that the character, mana and reputation of Mokomoko and his uri (descendants) are restored. Mokomoko was a rangatira of Whakatōhea who was wrongly convicted of murder and executed in 1866. He was subsequently pardoned in 1992.

As I noted in the Māori Law Review report on the Bill:

The Māori Affairs Select Committee supported the request of te whānau a Mokomoko to amend the bill by having a full Te Reo Māori translation included.  The Select Committee report noted that translating the legislation before enactment would have the legal impact that the English and Te Reo Māori versions would be considered equal and the Committee commented on the positive impact that the dual translation could have on future legislation.

And this was also in a year in which two important books were published that speak directly to the bicultural dimensions of our legal system. The first is Te Mātāpunenga: A Compendiumof References to the Concepts and Institutions of Māori Customary Law. The second is He Papakupu Reo Ture: A Dictionary of Māori Legal Terms. Both are significant resources that are set to make an important contribution to the way in which New Zealand law approaches Māori issues.

This may only be tentative first steps and have arguably been a long time coming, but, in the 174^th year of the life of the Treaty of Waitangi, they are encouraging signs nonetheless.

Māori Council case to go directly to Supreme Court

Leave has been granted for the New Zealand Māori Council to appeal directly to the Supreme Court in the litigation concerning the sale of shares in Mighty River Power.

High Court decision in Mighty River Power case

Justice Ronald Young has issued his decision in the High Court litigation brought by the New Zealand Māori Council to challenge the Government’s decision to proceed with the sale of shares in Mighty River Power (New Zealand Māori Council v Attorney-General, available on the Courts of NZ website).  Justice Young found that none of the decisions taken by the Crown to advance the sale of those shares were reviewable, that is, those decisions could not be reviewed by the courts.  Furthermore, Justice Young concluded that even if the decisions were reviewable, none of the grounds for review that were argued by the Māori Council would succeed.

The New Zealand Māori Council (joined by the Waikato River and Dams Claims Trust and the Pouakani Claims Trust) sought to challenge three key decisions made by the Crown:

(a)  the direction by the Cabinet to the Governor-General to bring into force by Order in Council the State-Owned Enterprises Amendment Act 2012. This has the effect of changing the status of Mighty River Power (‘MRP’) from an State-Owned Enterprise (SOE’) to a Mixed Ownership Model (‘MOM’) company; 

(b)  amending the constitution of MRP (and later the other SOE companies) which currently requires 100 per cent of the shares to be held by the Crown through the relevant Minister, to permit 49 per cent ownership by private persons; and 

(c)  offering for sale and selling up to 49 per cent of the shares in MRP.

The Māori Council contended that, with respect to each decision, the Crown must act in a manner that is not inconsistent with the principles of the Treaty of Waitangi.  This argument was premised on the decisions being subject to the Treaty principles provision in either s 9 of the SOE Act or s 45Q of the Public Finance Amendment Act.  According to this argument, ministerial action would be inconsistent with the Treaty if the Crown did not first implement protective mechanisms to provide for redress and protect Māori proprietary rights to water and geothermal resources before making any of the three decisions.

In the alternative, the Māori Council argued that:

• there was inadequate consultation in relation to these decisions, which was inconsistent with the principles of the Treaty;
• the Crown made an error of law by taking into account the idea that “no-one owns the water” when deciding whether its actions were consistent with Treaty principles;
• the Crown’s failure to wait for the completion of both stages of the Waitangi Tribunal inquiry was unreasonable;
• it was an error of fact or law to conclude that a sale of 49 per cent of the shares of MRP would not be inconsistent with Treaty principles;
• the intention to proceed with the sale of shares was a breach of a legitimate expectation held by Māori that the Crown would act with utmost good faith and actively protect Māori interests; and that
• the Crown had breached the requirements of natural justice by proceeding with the sale of shares before Māori claims to the water and geothermal resources could be properly heard.
• The Waikato River and Dams Claims Trust also argued that the Crown’s decision to proceed with the sale of shares in MRP is a breach of s64(3) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.

 However, Justice Young determined that the Crown’s argument was correct.  He found that the decision to bring into the State-Owned Enterprises Amendment Act into force, the ‘commencement decision’, was not subject to the Treaty provisions in either the SOE Act or the Public Finance Amendment Act.  The Crown argued that Parliament has enacted the State-Owned Enterprises Amendment Act, delegating the decision to bring it into force to the Executive but there is no discretion for the Executive to consider the policy decisions that underlie making MRP a MOM company.  Those policy matters have already been determined by Parliament, including the nature of the protection of Treaty principles that are required.  Justice Young notes that “Parliament’s intention in passing the SOE Amendment Act and the Public Finance Amendment Act was to ensure that those companies that are subject to the new MOM regime are not subject to the s 9 SOE Act Treaty compliance requirement but to the s 45Q Treaty compliance requirement”.  As an interesting side-note, Justice Young also points out that

“The Public Finance Amendment Act 2012 provides that MOM companies will be subject to a Treaty inconsistency rule (at s 45Q) but one which has narrower application than s 9 of the SOE Act.”

This is confirmation that the protection provided by s 9 of the SOE Act were not completely transferred to the new MOM companies, despite Government Ministers’ claims that the legislation would address Māori concerns by including a provision that reflected “the concepts of the existing section 9 of the SOEs Act”.

As regards to the decisions to amend the constitution of MRP (a precondition to the sale of the shares) and to offer up to 49 per cent of the shares for sale, Justice Young found that these decisions were not reviewable because they were the exercise of common law powers and not statutory powers.  This was a direct application of the principle from the 1996 Court of Appeal decision relating to the sale of shares in Radio New Zealand.

Justice Young also rejected the Māori Council’s argument that the sale of shares in MRP would materially affect the Crown’s ability to recognize Treaty rights and provide redress.  On this point, Justice Young comes to a different conclusion to the Waitangi Tribunal, which had determined that in relation to the shares plus concept, the Crown’s ability to recognize Māori rights would be compromised.  Justice Young thought that the shares plus concept would be unworkable and did not accept the Māori Council’s submission that if the Crown was to reject the shares plus option, it had an obligation as a reasonable Treaty partner to come up with an alternative scheme.

Predictably, the Government has welcomed the decision, while it is being reported that the Māori Council is preparing an appeal.

Utmost good faith?

On Monday, John Key announced that the public offering of up to 49 per cent of shares in Mighty River Power will be delayed until early next year.  This will allow consultation to take place with Māori over the ‘shares plus’ concept raised by the Waitangi Tribunal as a possible means of recognizing Māori residual proprietary interests in water bodies.  This might look like the Government is trying to find a way of recognizing those interests, but, judging by the wording of Key’s statement, it seems as though there may be real questions as to whether the Government is engaging in this process in good faith.

First of all, Key’s statement focuses on setting out reasons why the Government opposes the ‘shares plus’ concept (which the Tribunal suggested could be used to recognize Māori residual proprietary interests through shares in the power-generating companies that carried with them a significant degree of control over the operations of the company).  Neither the formal statement nor Key’s responses to questions on Monday suggest that the Government is entering into this process with the aim of finding a way to implement the ‘shares plus’ concept.  Key’s statement that ‘ministers have today decided that taking some time to talk about ‘shares plus’ with relevant iwi is the prudent thing to do’ sounds to me as though the process will be one in which the Government will tell Māori why the ‘shares plus’ concept will not be accepted.  This is reinforced by reports that “Mr Key made it clear yesterday that the consultation period was not likely to see the Government change its mind, but was required to strengthen the Government's legal position”. This sounds like it will be an awful lot like the “consultation” around the inclusion of a Treaty of Waitangi provision in the legislation enabling the partial privatization of the state-owned power generating companies. That process was about Government ministers telling Māori what was going to happen. It was not about listening to Māori who consistently stated that they did not want the partial privatization to proceed without Māori rights being protected.  It is difficult to see how this could be construed as engaging in good faith, as pointed out in the NZ Herald editorial today. It strikes me that a little bit more listening and compromise early on in the process might have enabled the Government to avoid some of the difficulties it is now encountering in this process.

And the reasons for opposing the ‘shares plus’ concept are little more than political spin.  Key’s statement notes “Almost every form of redress to Maori that could be covered by ‘shares plus’ can be achieved in other ways”.  This is true.  But this is not a reason to oppose the ‘shares plus’ option.  Implicit in that statement is that there are some forms of redress that cannot be achieved in other ways.  If the Government wants to push ahead with the partial privatization without first resolving issues relating to Māori rights to water bodies then it ought to ensure it retains the ability to provide all forms of redress that might be required to provide reparation.  Key also says that ‘shares plus’ is unworkable and backs that up with this example:  “if some Maori shareholders had the ability to make decisions on strategic issues, under well-established law, those shareholders must act in the interests of the whole company and not simply as a representative of Maori”.  I am sure that Māori shareholders with enhanced decision-making authority could continue to make decisions in the best interests of the whole company at the same time as ensuring that Māori perspectives are given voice in that decision-making.

Key also stated “Following consultation with iwi earlier this year, a careful and deliberate decision was made to ensure that the Crown’s obligations under the Treaty continue to rest with the Crown, not with the companies.”  This makes it sound as though this was the outcome Māori had sought through the “consultation” process.  This could not be further from the truth.  Māori consistently told the Crown that the Treaty protections would be watered-down if they did not continue to apply to 100 per cent of the company.  The Government’s decision on this issue was made despite what Māori had said during the consultation, not because of what was said. 

The Government has also ignored other key elements of the Waitangi Tribunal’s recommendations.  In particular, the Government is sticking to its line that the partial sale of Mighty River Power will not affect the Crown’s ability to recognize Māori rights and interests in water.  The Tribunal notes that the Crown’s preferred options for rights recognition fall short of the Treaty guarantees because they do not recognize the proprietary element of Māori rights and do not provide for commercial or economic benefits that accrue because of the proprietary character of the rights in question.  The Tribunal found that, as the sole shareholder, the Crown now has flexibility to provide for the ‘shares plus’ option that will be lost once the partial privatization has taken place, noting

That would mean that the ability to negotiate remedy agreements with Māori would be lost if those potential remedies were by way of share issues or the transfer of existing shares on terms involving any form of preference as to voting rights, capital or income distributions, pre-emptive rights, or appointment of directors, to name but some possible remedy considerations.

The Tribunal also recommended that the Crown urgently convene a national hui ‘in conjunction with iwi leaders, the New Zealand Māori Council, and the parties who asserted an interest in this claim’, but the Government has rejected this idea in favour of much more limited discussions with specific iwi.  Furthermore, now that a national hui has been called, under the auspices of the Māori King, Key has made it clear that the Government and National Party MPs will not attend.  Rejecting the forum for consultation recommended by the Tribunal and clearly preferred by no less a figure than King Tuheitia raises yet another question mark over the Government’s claim to be engaging ‘in good faith’. 

Year 171

As I noted around this time last year, Waitangi Day is not only a time to celebrate our nationhood, but ought also to be a time when we reflect on the nature of the relationship set out in the articles of the Treaty of Waitangi and how healthy that relationship is at present.

The 171^st year of the life of the Treaty has provided some interesting indicators of the state of the Treaty partnership.

The increasing influence of the National Iwi Chairs Forum over the last year has certainly been a notable development in terms of the way in which the Crown engages with Māori.  Pita Sharples, as both Minister of Māori Affairs and Māori Party co-leader, sees as extremely positive the input that the Iwi Chairs Forum has had, and continues to have, into policy relating to the foreshore and seabed, water, aquaculture, emissions trading, forestry and resource management.  Sharples suggests that this group represents the Māori Treaty partner, and that the Māori Party itself represents the Māori Treaty partner in its relationship with the National Party.  Prominent Māori lawyer Annette Sykes has a different view.  In the 2010 Bruce Jesson Lecture, Sykes provided a powerful critique of the National Iwi Chairs Forum and its relationship with the Crown.  Sykes argues that the increasing influence of the National Iwi Chairs Forum is not enhancing the Treaty relationship.  On the contrary, she suggests that it is in fact obstructive of the relationship envisaged by the Treaty, which was one between hapū rangatira and the Crown.  In effect, the Crown has constructed “a Treaty partner in it’s own image” which it feels comfortable dealing with. Sykes points to the Forum’s engagement in the very areas highlighted by Pita Sharples as evidence for her argument.

The foreshore and seabed issue is one area in which Pita Sharples believes the health of the Treaty relationship is being demonstrated.  Although he acknowledges that the proposed replacement for the Foreshore and Seabed Act, the Marine and Coastal Area (Takutai Moana) Bill that is currently before the Māori Affairs Select Committee, is not everything Māori might have hoped for, he clearly sees the Bill as a step towards better recognition of tino rangatiratanga.  The Bill is undoubtedly an improvement on the Foreshore and Seabed Act.  But it is still fundamentally flawed.  Many people might wonder how it can be a step towards tino rangatiratanga for the Māori Party to support a Bill that will discriminate against Māori.

Another area that we might look to in order to ascertain the health of the Treaty relationship is the work of the Waitangi Tribunal and the Office of Treaty Settlements.  There has certainly been considerable activity in this area over the past year.  The Tribunal has released the Stage II report on the Tauranga Moana claims dealing with post-raupatu issues, Part Two of the report on the Urewera claims, the East Coast Settlement Report, the Wairarapa ki Tararua Claims Report, the Management of the Petroleum Resource Report, and a pre-publication version of the chapter dealing with te reo issues from the Wai 262: Indigenous Flora and Fauna and Māori Intellectual Property inquiry.  We hope to see the final report for the long running Wai 262 inquiry published this year. The Office of Treaty Settlements has also been busy with major settlement legislation being enacted, a number of significant deeds of settlement reached, and important agreements in principle signed with groups in the Auckland area and the Te Hiku Forum representing five iwi from the northernmost part of the country.  The Crown is continuing to work towards its target of settling all historic treaty claims by 2014.  Swift progress is of as great a concern to Māori as anyone else, and yet we must not lost sight of the fact that the durability of these settlements will depend on delivering a measure of justice.  With that in mind, it is worrying to note the recent concerns raised by some iwi about the pressure to settle that is being exerted by the Crown.

As we head into the 172^nd year of the Treaty of Waitangi, we have both an election and a constitutional review on the horizon.  Both could well deliver significant outcomes for the way in which the Treaty relationship is implemented. 

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 19^th 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 19^th 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 19^th 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.