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.

Tuhoe Settlement Negotiations

A couple of weeks ago, TV3 News ran an item on Ngai Tuhoe’s Treaty of Waitangi settlement negotiations.  The item, in rather sensationalist style, stated:

The Government is on the verge of offering the Tuhoe tribe a treaty settlement that could be as groundbreaking as it is controversial. Tuhoe is hoping it will mean total control of the Urewera National Park, and start the tribe on the way to self-rule and becoming a separate nation… Tuhoe sources have told us the first steps towards separate Tuhoe rule are also on the table under what's called 'mana motuhake'. The tribe wants Government functions like schools, health and welfare handed over to Tuhoe, with other functions - even tax - devolved over time.

The Minister of Treaty of Waitangi Negotiations responded to this item by issuing a statement that included the following:

At no point in the negotiations have Ngai Tuhoe asked for any form of separatism from New Zealand or an independent Tuhoe state.  Those issues are simply not part of any negotiation the Crown is undertaking.  The Crown has not, and will not, make any offer to Ngai Tuhoe that includes such forms of redress. 

While the Minister was quick to dismiss the idea of a separate, independent Tuhoe state, issues of self-determination, increased autonomy, and tino rangatiratanga are inevitably a part of all Treaty of Waitangi settlement negotiations.  In the case of Ngai Tuhoe, there has been a particular focus on political and constitutional arrangements throughout the claims and settlement process to date.  As noted above, this is nothing very extraordinary in the context of Treaty of Waitangi settlement negotiations, but does provide an opportunity to more directly address ‘constitutional claims’.

These constitutional claims were heard by the Waitangi Tribunal as part of its Te Urewera district inquiry.  Last year, the Tribunal released a pre-publication version of Part 1 of its report on the Te Urewera claims.  The Tribunal notes that, as Ngai Tuhoe were not signatories to the Treaty of Waitangi, they were not automatically bound by its terms, though the Crown’s obligations to Ngai Tuhoe are not affected:

Due to the failure of the Crown’s emissaries to bring the Treaty to Te Urewera in 1840, the claimants’ tipuna were not offered the chance to debate the terms of the Treaty or a relationship with the Crown, or to come to a decision on the matter. By British law, the Crown’s sovereignty over the whole of New Zealand rested on its proclamations of May 1840, as gazetted in October 1840. In political terms, however, life continued unaltered in Te Urewera after October 1840. The Treaty took effect for the claimants’ tipuna only as a unilateral set of promises made to them by the Crown.

The one part of the Tribunal’s report that has, to date, been released as a pre-publication document, only addresses the period up until 1865.  The Tribunal suggests that there was nothing that took place between 1840-1865 that significantly affects the matters that are the subject of the ‘constitutional claims’:

Government did not attempt to assert any authority in Te Urewera until 1866, when it confiscated a sizeable portion of land in the district. Nor did it attempt to enter into a relationship with the peoples of Te Urewera, or to obtain their consent to its authority.

It is this background that provides a central part of the context for Ngai Tuhoe’s Treaty settlement negotiations.  It is hardly surprising that one of the subjects listed as a key area for discussion in the Terms of Negotiation is described as follows:

Constitution: aim to provide clarity between the Crown and Ngai Tuhoe regarding their constitutional relationship. Such discussions should focus on historical, current and future Treaty relationships

Establishing new relationships between iwi/hapū and the Crown is a vital part of the Treaty settlement process.  Without such new relationships it is impossible to move towards any form of reconciliation.  These issues sit at the heart of Ngai Tuhoe’s claims and it will be interesting to see how these will be addressed in any proposed settlement.