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.

UN Special Rapporteur in NZ

James Anaya, the UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People has been in New Zealand this past week and I thought it might be helpful to provide a little information about the role of the Special Rapporteur and the work of James Anaya.

The role and mandate of the Special Rapporteur is set by resolution of the United Nations Human Rights Council.  The Human Rights Council can set mandates for Special Rapporteurs, Working Groups, and Independent Experts across a range of different subject areas.  At present there are 31 of these subject-specific mandates including Special Rapporteurs on freedom of religion or belief, the right to food, and the promotion and protection of the right to freedom of opinion and expression.  The Human Rights Council may also set mandates to address situations in specific countries.  The mandate of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People was established in 2001 and extended by resolution of the Human Rights Council in 2007.  That resolution authorizes and requests the Special Rapporteur:

to examine ways and means of overcoming existing obstacles to the full and effective protection of the human rights and fundamental freedoms of indigenous people, in conformity with his/her mandate, and to identify, exchange and promote best practices;

to gather, request, receive and exchange information and communications from all relevant sources, including Governments, indigenous people and their communities and organizations, on alleged violations of their human rights and fundamental freedoms; and

to formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations.

The extended resolution also requires the Special Rapporteur

to promote the United Nations Declaration on the Rights of Indigenous Peoples and international instruments relevant to the advancement of the rights of indigenous peoples, where appropriate.

James Anaya was appointed as Special Rapporteur in 2008.  As one might expect of someone in his position, he is an internationally renowned expert in human rights law and issues relating to Indigenous peoples.  He has worked as a law professor for over twenty years and is currently the James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona.  He has written extensively on Indigenous peoples’ rights in international law, including authoring the definitive text on the subject. 

His work on the concept of self-determination – especially surrounding its development in the international law context and its relevance for Indigenous peoples today – has been hugely influential.  Anaya has argued Indigenous peoples’ engagement in international human rights fora, as entities that are ‘simultaneously distinct from, yet part of the social fabrics of the states in which they live’ has challenged the idea that the state is ‘the highest and most liberating form of human association’.  That leads to a model of self-determination that is not necessarily based around independent statehood, but is instead focused on developing modes of interaction that reflect Indigenous forms of authority as well as rights of participation in state processes.  A full list of Anaya’s academic publications is available here.

Anaya also has made a significant contribution to the recognition of Indigenous rights outside of his academic scholarship.  He was involved in the drafting of the United Nations Declaration on the Rights of Indigenous Peoples and has advised and represented numerous Indigenous groups. He was the lead counsel for the Indigenous parties in the case of Awas Tingni v. Nicaragua, in which the Inter-American Court of Human Rights in 2001, for the first time, upheld indigenous land rights as a matter of international law.

The Awas Tingni case has been extremely significant in terms of the recognition of Indigenous rights. It has been cited in various domestic and international cases including the October 2007 decision of the Supreme Court of Belize, which is well-known for also relying on the land rights provisions contained in the United Nations Declaration on the Rights of Indigenous Peoples which had been adopted by the UN General Assembly a matter of weeks before.

The Special Rapporteur plays an important role in the United Nations human rights system and Mr Anaya’s expertise and experience in this area means that he can make a valuable contribution to the discussion of Indigenous rights in the New Zealand context.

East Coast Settlement Report

The Waitangi Tribunal has released two significant reports within the last week.  First was the Tribunal’s report on the Treaty claims of iwi and hapū of the Wairarapa ki Tararua district.  This report is the culmination of a major district inquiry and was released on 26 June 2010.  I will write a post on that report in due course, but for the moment I would like to focus on the Tribunal’s East Coast Settlement Report, which was released yesterday. 

The East Coast Settlement Report is the latest in a series of reports which address aspects of the Treaty settlement process itself.  In fact, this report provides a helpful summary of previous Waitangi Tribunal comment on Crown settlement policy.  The report also addresses the recent Court of Appeal decision in Attorney-General v Te Kenehi Mair (which was the subject of a previous post on this site).

The East Coast Settlement Report relates to the settlement negotiations that are currently under way between the Crown and Te Runanga o Ngāti Porou.  A number of claimants who submitted claims for the Waitangi Tribunal’s East Coast district inquiry did not wish to enter direct negotiations with the Crown without first going through a full district inquiry.  Some of these claimants, who claim to represent the kin groups Ruawaipu, Uepohatu, and Te Aitanga-a-Hauiti ,sought recommendations from the Tribunal that the settlement between the Crown and Te Runanga o Ngāti Porou should be delayed.  They contended that the Runanga has no mandate to negotiate the settlement of their claims and that the Crown’s recognition of the Runanga’s mandate is contrary to the principles of the Treaty.  The Tribunal held an urgent hearing of these claims in December 2009 and has now reported its findings and recommendations in the East Coast Settlement Report.

The report identifies a number of aspects of the mandating process that might have been improved upon, although the Tribunal determined that any flaws in the process were not substantial enough to warrant delaying the settlement.  The Tribunal was mindful that such a delay would significantly prejudice those who support Te Runanga’s mandate.  Furthermore, the Tribunal noted that a full inquiry was unlikely to address the many of the issues at the heart of the claimants concerns, which were really issues between Māori groups, upon which the Waitangi Tribunal has historically been reluctant to comment.

However, the Tribunal did find a number of flaws in the Crown’s Treaty settlement policy and recommended a number of changes to that policy to ensure that the settlement process is fair and that settlement agreements are durable.

These recommended changes included the following:

• The Office of Treaty Settlements should call for submissions at the point that a proposed mandating strategy is submitted, as well as after a deed of mandate is received in order to allow ample time for interested parties to voice their concerns and for the Crown to be made aware of potential issues at an early stage.

• The information provided as part of any mandating strategy must include: 
• the specific claims (Wai numbers) to be included in a proposed settlement; 
• a clear definition of the claimant community on an iwi, hapu, marae, and whakapapa basis; 
• and the specific geographical area to be covered by a proposed settlement.

• The Office of Treaty Settlements should, at an early stage, write to all Wai number claimants whose claims might be extinguished if a proposed settlement goes ahead, and should also assist any body that is mandated to negotiate the settlement of claims to communicate settlement milestones and developments with affected claimants.

• The Crown should adopt a more proactive role in monitoring developments during the mandating strategy process in order to discharge its responsibilities towards claimants who may feel marginalised as a result of the process.

• In order to lessen the likelihood of claimants seeking assistance and protection through the Waitangi Tribunal’s urgent inquiry process, the Crown must recognise that it “has a responsibility to ensure that all interested parties in a negotiated settlement have access to unhindered participation at every stage of the mandating process.”

• The Office of Treaty Settlements should “update its policy guide, Ka Tika a Muri, Ka Tika a Mua, to reflect changes that have arisen out of the recommendations of Waitangi Tribunal reports on mandating issues and Crown settlement policy in general.

Foreshore and Seabed: Can the symbolism of repeal lead to real change?

So, we now have agreement between the Māori Party and the National Party as to the broad shape of the regime that will replace the Foreshore and Seabed Act 2004.

The proposed regime is essentially the Government’s preferred option, which was flagged in its recent consultation document.  It is certainly welcome news to see progress being made on repealing the Foreshore and Seabed Act, though, as I noted in a previous post, some of the fundamental problems with that act remain in the proposed new regime.  The basic conceptual and practical subordination of Māori property rights still sits at the heart of the proposed regime. 

There are a couple of notable changes from the preferred option in the consultation document that are reflected in the agreement announced this week.  The ‘public domain’ concept will be called something else; and the proposed regime will also include universal recognition of a Māori group's continuing mana in respect of the foreshore and seabed.  It is not clear that either of these changes will have any immediate practical effect, but they are important nonetheless.  

I previously suggested that the change from Crown ownership to public domain was primarily symbolic, but that such a change was extremely important to remove the perception of a brazen confiscation of Māori property rights by the Crown.  Similarly, it will be important that in moving away from the language of ‘Crown ownership’, the new regime does not import, through the language of ‘the public domain’, connotations of terra nullius, the concept of ‘empty land’ that European colonisers used throughout the world to justify the taking of land from Indigenous peoples.  Specific rights and obligations exist and will continue to be exercised in relation to the foreshore and seabed and to mask that fact with the suggestion that it is owned by everybody and nobody is not helpful.

The ‘universal recognition’ of mana in relation to the foreshore and seabed may also appear to be largely symbolic, but I think represents a significant, though tentative, step forward in the way that this issue is conceptualised.  This recognition strikes me as hinting at a change in the parameters of the discussion of foreshore and seabed issues.  It suggests, albeit cautiously, that the rights, responsibilities, and relationships that iwi and hapū have with areas of the foreshore and seabed within their rohe is determined by tikanga Māori and continues to exist distinct from property rights defined by common law or legislation.  Now, this symbolic recognition is not supported in the government’s proposed regime by measures that would provide for its practical implementation, outside of an extension of participation in conservation processes.  However, it does, perhaps, open up the possibility of framing this issue differently.

As I noted in my earlier post, the proposed regime marks an improvement on the Foreshore and Seabed Act 2004, but it maintains a subordinate position for Māori rights and as such cannot hope to provide just or fair outcomes.  Although, it may be that some of the symbolic changes to the regime may open up the space for a longer, more productive, conversation about the expression of Māori rights and obligations in relation to the foreshore and seabed within a tikanga framework.

Haronga v Waitangi Tribunal (Court of Appeal)

Back in January, I wrote a brief post on the High Court decision Haronga v Waitangi Tribunal.  That decision has since been appealed and the Court of Appeal last month dismissed that appeal, confirming the decision of Justice Clifford in the High Court.

As I noted in my earlier post, the facts of the case are essentially as follows:

In Haronga, the application for an urgent hearing was made in September 2009 in light of Crown advice that the Crown and Te Manu Whiriwhiri (a body comprised of several mandated groups from throughout the Gisborne region) intended to initial a deed of settlement in December 2009.  Mr Haronga sought an urgent hearing before the Waitangi Tribunal to address remedies for Treaty breaches specifically in relation to the Mangatu State Forest.  Mr Haronga argued that redress in relation to these breaches should be addressed through the Mangatu Incorporation and that none of the groups within Te Manu Whiriwhiri had the mandate to agree a settlement in relation to those specific issues.

Judge Clark, in the Waitangi Tribunal, declined the application for an urgent hearing.  Mr Haronga then applied to the High Court for judicial review of Judge Clark’s determination.  Justice Clifford heard the application in the High Court:

In his judgment, Justice Clifford dismissed the application for judicial review, finding that the Tribunal’s determination was lawful.  The Tribunal, when determining whether to grant a remedies hearing, is entitled to consider whether settlement negotiations are ongoing or stalled and whether or not a remedies hearing will assist with the resolution of the claim in question.  It was not unlawful for Judge Clark to consider these matters in this particular case.  Furthermore, it was found to be artificial to completely separate the remedies claim from the substantive claims in relation to the Mangatu forest and there was no evidence to indicate that the mandate in relation to the Mangatu forest claims had been withdrawn from the group within Te Manu Whiriwhiri that was proposing to settle those claims.

As noted above, the Court of Appeal has confirmed Justice Clifford’s decision.  It is, however, interesting to note the way that the Court has characterised the issues raised as being about more than simply the procedural processes that the Waitangi Tribunal utilises in order to manage its caseload.  Referring to the decision in Attorney-General v Mair, (on which I have also posted recently) the Court of Appeal is careful to note “it is unlikely that an appellate court will second-guess a tribunal’s decision as to its priorities”.  Nevertheless, the Court agreed with the appellant’s view that there are substantive issues involved that relate to the right of successful claimants to seek a particular form of remedy in a meaningful way.

While the Court accepted that “a blanket refusal to consider making resumption orders because broader settlement discussions are underway may be problematic.” and stated that “an inflexible “circuit breaker only” approach to the granting of remedies hearings may be objectionable”, ultimately, it was the Court’s view that this as not the approach that had been taken by Judge Clark in the Tribunal.  The Court of Appeal agreed with the decision of the High Court, which had found that Judge Clark had appropriately considered the particular merits of the application for an urgent remedies hearing and exercised his discretion to refuse such an application accordingly.

Waikato-Tainui Raupatu Claims (Waikato River) Act

Earlier this month, the Waikato-Tainui Raupatu Claims (Waikato River) Act was passed by Parliament.  This act implements aspects of the agreement between the Crown and Waikato-Tainui to settle claims in relation to the Waikato River, which were explicitly excluded from Waikato-Tainui’s earlier settlement.  ‘Co-management’ is a central theme of the legislation, which provides a number of significant mechanisms for the involvement of Waikato-Tainui in the management of the river.  

The central body in the new co-management arrangements established by the Act will be the Waikato River Authority.  The Authority is comprised of ten members – five members appointed by the Crown (including two members to be recommended by local government) and five members appointed by organizations representing iwi with interests in the river.  The Authority sets the primary direction of the management of the Waikato River.  This is affected through the Vision and Strategy for the Waikato River, which is set out in Schedule 2 of the Act and is to periodically reviewed by the Authority.  The Vision and Strategy are central to the new framework for the environmental management of the Waikato River.  Broadly, instruments that regulate the management of the river under the Resource Management Act 1991, such as regional policy statements, and regional and local plans must be made consistent with the Vision and Strategy.  Any changes to conservation management strategies and plans must be accompanied by a statement on how the Vision and Strategy has been given effect to.  The Act also lists a range of other situations in which the Vision and Strategy must be given particular regard.  The Vision and Strategy, therefore, are important instruments in relation to the management of the river, and the Waikato River Authority is the body responsible for reviewing the Vision and Strategy and recommending amendments.

The Authority has a range of other powers and functions, including providing advice to local and central government agencies and appointing members to sit on resource consent hearing committees, but the Authority also has an important role as trustee of the Waikato River Clean-Up Trust. The object of this trust is the restoration and protection of the health and wellbeing of the Waikato River for future generations.  Under the terms of the amended Deed of Settlement, the Crown will provide $21 million to the trust fund initially and then $7 million each year for 27 years.  This trust will therefore be a central player in the management of the river through its role of allocating funding for restoration projects.

There are a number of other significant co-management measures in this settlement, but the final instrument that I would like to address in this post is the Integrated River Management Plan.  The purpose of this plan is “to achieve an integrated approach between Waikato-Tainui, relevant departments, relevant local authorities, and appropriate agencies to the management of aquatic life, habitats, and natural resources within the Waikato River”.  This plan is to be prepared jointly by Waikato-Tainui and relevant government departments and must include a conservation component, a fisheries component, and a regional council component.  These various components feed into the particular planning processes that regulate each specific subject area.

Overall, this settlement represents significant potential for Waikato-Tainui to have genuine input into the management of the Waikato River.  The next challenge will be for all those involved to ensure that this potential is fully realized. 

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.