July 1998 Contents

Waitangi Tribunal

Te Whänau O Waipareira Report

Turangi Township Remedies Report

Other Courts and Tribunals

High Court – Whakarewarewa Village charging arrangement

 

Mäori Land Court & Appellate Court

No items this month

Waitangi Tribunal

Te Whänau O Waipareira Report

Wai 414. Waitangi Tribunal Report 1998. 10 June 1998. JR Morris (Presiding Officer), IH Kawharu, PE Ringwood, JH Ingram. 266 pages

Te Whänau o Waipareira Trust Inc, a charitable trust incorporated in 1984 under the Charitable Trusts Act 1957, claimed that the Community Funding Agency (CFA) and the Department of Social Welfare (DSW) had failed to recognised the special status of the trust and consult with it in terms of article 2 of the Treaty of Waitangi. This claim ‘broke new ground’ in contending that a non-tribal group, not linked by kinship, can exercise rights arising from rangatiratanga and is therefore a Treaty partner with the Crown, and entitled to protection of its rangatiratanga rights under article 2.

Background

The trust works for 28,800 Mäori in the west Auckland region from Waterview to Helensville, if whom 16,800 live in Waitakere City, and the largest concentration in Te Atatu North. It is the fastest growing area in New Zealand, with some staggeringly bad social statistics for Mäori including:

•  Average income of $12,400;

•  35% of social welfare caseload, 22% unemployment, 55% of the Youth Justice workload;

•  No formal schooling qualification for 90% of Mäori over 15 years of age in Waitakere City, and only 0.399% having any university qualification.

The trust has its origins in the influx of Mäori to Auckland in the 1950s and 1960s. Mäori committees were established under the Mäori Welfare Act 1962 to deal with emerging problems of urbanisation. Several such pan-tribal committees flourished in West Auckland and developed strong networks while dealing with cultural, social, educational and health issues. The Hoani Waititi marae was established as a pan-tribal meeting place for Mäori of the region and to provide focus to community efforts. In 1982 the then Department of Mäori Affairs, under its Kokiri community administration programme, promoted the establishment of a Waipareira Community Management Group, which decided to call itself Te Whänau o Waipareira, “in keeping with the whänau concept of helping and supporting each other”. It then incorporated as a charitable trust with 20 trustees, and numerous affiliate groups working in the community (Mäori Women’s Welfare League groups and Mäori committees being dominant) who ‘in essence’ made up “Te Whänau”, while retaining their own autonomy. Trust activities in recent years had been:

•  monthly meetings averaging 65 people in attendance, representing 44 different organisations (at which Mäori protocols were observed);

•  piloting a successful Maatua Whangai programme with the departments of Mäori Affairs, Justice and Social Welfare, dealing with ‘at risk’  Mäori children;

•  establishment of a ‘roopu kaumätua’ or group of kaumätua representatives to assist with linking Mäori children with their iwi;

•  participation in Mana Enterprises and Mäori Access schemes promoting employment and new enterprises;

•  lobbying government on initiatives including the Royal Commission on Social Policy, the Runanga Iwi and Resource Management Bills and promoting Mäori representation in local government;

•  after the large scale state sector reforms of the 1980s and 1990s, and the introduction of funder-provider split, heavy involvement since 1991 with the DSW and CFA in a number of initiatives including providing services to children and family under the ‘home-builders’ programme, establishing a food co-operative, foodbank, budgeting advice, holiday programme for at risk children, health clinic, alternative schooling unit for at risk teenagers;

•  in the 1990s restructuring so that each programme under the trust umbrella operated as a separate business unit, and splitting the commercial, training and  employment elements of the trust from the social services and health arm.

The claim was generated by differences with CFA, an arm of DSW established in 1992 to resource community groups providing social services, over the basis of funding of the social services programmes of the trust, which had resulted in most of the programmes being cut back, the social services division being closed, and 15 whänau support workers laid off.

It was noted that the trust did not claim any status as a group having mana over land in the Auckland area, and was not therefore in conflict with Ngäti Whatua and Tainui groups of tangata whenua in the area.

Tribunal jurisdiction on representation

The tribunal rejected a Crown argument that it ought not to make a finding that the trust represented the ‘West Auckland Mäori community’, because s30 Te Ture Whenua Mäori Act 1993 was available for that determination (quoting a tribunal comment in the Report on South Auckland Railway Lands 1993). Section 30 was one means of determining representation, but did not limit the tribunal in any way. But there was no necessity to make any finding on mandate because the real issue was whether the Te Whänau o Waipareira itself has any Treaty rights.

Urbanisation

The tribunal also made no finding on any Crown culpability for urbanisation and the consequent breakdown in tribal networks, since there was insufficient evidence and argument on the issue. It also had no bearing on the outcome of the claim.

Treaty interpretation

An overly strict approach to the words should not be taken - the focus should be on the ‘essential principles’. The relevant principle in this case, rangatiratanga, required Crown acknowledgment of Mäori control over tikanga or Mäori custom and values, including allowing Mäori communities to identify themselves and manage their affairs in accordance with those customs and values. Where the community seeks to exercise its rangatiratanga in respect of the provision of welfare services, the Crown duty of protection requires that it enhance rangatiratanga by promoting a delivery regime which respects community autonomy and the special status of Mäori as Treaty partners and first inhabitants. The Treaty principle of Crown protection extends to all Mäori and to changing circumstances, so that it now extends to non-kin communities who by choice or circumstance cannot or do not participate in a traditional tribal way. In addition:

the Treaty is directed to all Mäori, not just tribes;

•  it is a living document, and speaks to Mäori according to their circumstances, irrespective of original tribal structures;

•  the Treaty protects Mäori interests generally, and not just those property classes mentioned in article 2;

•  the principle of rangatiratanga, or rights of autonomous action and management, applies to the social and political processes of Mäori groups, and maintenance of rangatiratanga by groups is an indicator of whether they deserve special recognition;

•  the Crown duty to protect rangatiratanga includes assisting Mäori to strengthen their own arrangements.

Mäori were not organised in 1840 in a hierarchy of iwi, hapü and whänau. Hapü and whänau were the effective organising units, and provided identity. The chiefs signed the Treaty on behalf of hapü. Nor was genealogy the sole determinant of hapü affiliation. Participation in a community was also important – so that affiliations could change over a person’s life. Whänau and hapü were constantly coalescing, splitting up and regrouping in a dynamic way. The term ‘iwi’ was applied to large political grouping after colonisation, and the term could also simply signify ‘people’ – as it did in the Treaty where it was used to refer to Queen Victoria’s ‘people’. There is therefore more to Mäori identity than just descent, and the disruption of communities since World War II has brought new processes of group formation to bear. “In the strict words of the Treaty, ‘iwi’ would not be a useful term to describe the Crown’s Treaty partner today.” The protection extended to all Mäori in article 3 is the root of the Treaty rights in this case, the principle of rangatiratanga is simply relevant to whether the group operates in a way to attract special consideration.

That the Treaty should be read according to prevailing circumstances is supported by the tribunal (Report on the Motunui-Waitara Claim 1983 para 10.1, Report on the Muriwhenua Fishing Claim 1988para 11.3.6) and by the courts (NZ Mäori Council v AG [1987] 1 NZLR 641, 663, 673, 681, Tainui Mäori Trust Board v AG [1989] 2 NZLR 513, 530, Te Runanga o Muriwhenua v AG [1990] 2 NZLR 641, 655).

Article 3 contains both an assurance of equal citizenship and a promise of general protection of Mäori interests (Crown counsel argued only the former was contained). This general principle of protection is also mentioned in the Treaty preamble and is linked to particular properties in article 2 (W Renwick The Treaty Now 1990 p29, Report on the Muriwhenua Fishing Claim 1988 para 10.5.4).

The principle of rangatiratanga, or rights of autonomous action and management, applies to the social and political processes of Mäori groups, and maintenance of rangatiratanga by groups is an indicator of whether they deserve special recognition. An authoritative Mäori opinion on the issue (NZ Mäori Council Kaupapa: Te Wahanga Tuatahi 1983), holds that rangatiratanga is the working out of a moral contract between leader, people and their god, which in practical terms mean wise administration of group assets or a trusteeship in whatever form Mäori deem relevant. Sacred and secular aspects are not separated, so that even commercial activity may be subject to ritual constraints. Rangatiratanga may take many forms in different settings and is the ‘single most potent factor in Mäori social organisation and the most effective catalyst for constructive change”. Dictionary definitions (HW Williams A Dictionary of the Mäori Language) show that rangatiratanga is bound up with ‘atawhai’ or kindness, caring, fostering and nurturing.

Rangatiratanga is as much about responsibilities and duties as it is about rights. It resides in the community, and legal structures can only reflect, and should not be mistaken for, the community. It is not absolute and may change over time. In making an assessment of rangatiratanga, the Crown must act in good faith, and undertake a ‘conscientious exploration’ of the issue with Mäori, who must ultimately decide the issue (Mäori Development Corporation Report 1993 para 7.4). The rangatiratanga of the group can extend to cover taonga. It is grounded in reciprocity and applies to much more than the customary ownership of properties. Rangatiratanga supports Mäori customs and values, and those are protected by articles 2 (taonga) and 3 (nga tikanga katoa). Article 2 merely reflects an intention that rangatiratanga will be generally maintained. It does not limit the matters over which rangatiratanga was guaranteed by the Crown. The courts have found that that guarantee could encompass “a changing right to ongoing existence as a distinctive people” (Taiaroa v Minister of Justice (HC Wgtn CP99/94 29 August 1994).

The Treaty partnership is one between the Crown and Mäori generally, not particular classes of Mäori. While the partnership has been spoken of in terms of ‘iwi’ or tribes in cases considering the issue, this is because only tribes were under consideration in those cases. Whether any particular group has Treaty rights has to be answered in each case by an inquiry into whether the group is a Treaty partner.

Accordingly, according to the circumstances in each case, bodies other than traditional tribes may be entitled to the special protection of the Crown under the Treaty. This is particularly so if the group is “distinctly Mäori” in adhering to customary values and seeking to promote the welfare of its community. It is then more than simply another cultural group. The test applied to Waipareira therefore becomes:

•  Did the trustees provide care and development assistance to a significant number of Mäori beneficiaries, were they properly accountable to them, and did the community support its leaders?

•  If this was the case, did the manner in which the trustees operated reflect Mäori cultural values?

After reflecting on the origins and work of the Waipareira trust (outlined under “background” above), the tribunal concluded that the way in which the community had emerged (addressing Mäori needs, centered on a marae, development of a network of kaumätua etc), the adherence to Mäori values in the basic approach of the trust (including use of kaumätua, and in the focus on nurturing - including continuing social services even without funding), that it did exercise rangatiratanga, albeit in a modern setting. This conclusion was reached on an overall assessment of the facts. It was not desirable or possible to create a checklist, since this would not enhance rangatiratanga. Waipareira therefore deserved special recognition and protection by the Crown, beyond simple affirmative action programmes, and a comparison of disparities between Mäori and non-Mäori. This finding would not create a situation where Mäori groups could avoid the constraints on public funding for welfare services. The rangatiratanga or autonomy which might be desired is necessarily constrained by the proper exercise of kawanatanga or governance.

Interaction with state agencies

The tribunal then examined at length the interaction of Waipareira trust with the DSW and CFA in the provision of social services, and the policy document, Puao-te-Ata-tu, on which the DSW and CFA approach to funding of Mäori and Waipareira trust was based. It also examined the impact of state sector restructuring on the provision of funding. Also the devolution policy of the late 1980s and its replacement by the mainstreaming policy of the 1990s. It found a number of misunderstandings, miscommunications, poor decisions and structural problems including fragmentation occasioned by the operation of the State Sector Act 1988 and Public Finance Act 1989. One particular issue was s396 Children Young Persons and Their Families Act 1989, giving the Director-General of Social Welfare the power to approve any incorporated body established by an iwi as an ‘iwi social service’ (formerly an ‘iwi authority’), to which sole guardianship of a child or young person could be awarded in appropriate circumstances. The trust had applied to become such a service and been turned down on the basis that it was not a traditional kin-based tribal group.

Findings

The disagreements between the agencies and the Waipareira trust were symptomatic of underlying issues as to the status of the trust. The trust was not accepted as an ‘iwi’ and its applications for funding support were treated as applications from an interest group, not a Treaty partner. The CFA relied on Puao-te-Ata-tu for its approach giving precedence to iwi over ‘pan-tribal’ groups, including its refusal to grant sole guardianship of children under s396/1989, but a careful reading and understanding of that document showed that it did not limit matters in that way and a broader approach should have been taken both to it and the interpretation of Treaty articles. The way in which the goals of the CFA were set and the manner in which they were implemented, and the failure to report on outcomes, were also problematic. There were failures with consultation also. Applying Treaty principles to these facts:

Rangatiratanga: while kinship and descent provide ready-made networks of relationships among Mäori “it is rangatiratanga that determines which of those relationships have current significance.” The Crown’s duty is to protect rangatiratanga wherever it is manifest. In this case that did not mean the resources of tangata whenua, but the Mäori customary principle of social, political and economic organisation, and the right of Mäori to identify with the communities and support the leaders of their choice, in accordance with Mäori custom, and to enhance community autonomy as far as was reasonable and practicable.

Protection: the CFA and DSW, in determining that non-tribal communities should not get special consideration, did not fulfill the duty of protection of the community and hindered and divided the trust activities.

Partnership: Waipareira were not acknowledged as a Treaty partner, because the Crown narrowly interpreted judicial opinions (which actually refer to a partnership of “Crown and Mäori” not just “tribes”). The policy of devolution is designed to empower and create a partnership with Mäori communities as they are, not as the Crown might like them to be. This was not to denigrate tribes based on kinship links, which clearly exercise rangatiratanga requiring active protection. But, in the absence of effective trusteeship by hapü, tribal structures do not reach all Mäori, when all Mäori are entitled to the benefit of the Treaty. An inclusive rather than exclusive approach is required if Mäori communities are to be empowered under devolution principles. In addition, custom  accommodates such change, and should not be reinterpreted to support what is really a government policy desire. Customary considerations such as the need to maintain kinship ties are not undermined by this approach, since Waipareira provides through kaumätua and support services an effective link for Mäori to their kin groups and other cultural values. Having robbed Mäori of resources and initiative over many years, then encouraged new forms of development under schemes in the 1970s and 1980s, it would be a backward step to now restrict initiatives to tribes only. Once it determined that iwi rather than all Mäori were entitled to special consideration, the DSW moved into a position of defining and selecting its Treaty partners, particularly in its policy in relation to s396/1989. However the tribunal would not find that Waipareira was a Treaty partner, as sought by the trust, since this misconstrued the true situation, that the Treaty applies to all Mäori and thus partnership applies to all Mäori.

Important Treaty principles were not maintained in this case, in particular, principles relating to rangatiratanga, protection and partnership were not maintained in relation to a group exercising rangatiratanga in fact and there was prejudice to Waipareira as a result.

To put matters right now required better communication and consultation with the CFA. Also, funding provided by the CFA should not be made contestable between groups making up the trust so that trust unity was threatened. There should be consultation on services planning for the region. The relationship between Tangata whenua of Ngäti Whatua and the trust should also be maintained however by ensuring Ngäti Whatua were also consulted on services planning. There was a need for a district wide consultative forum so that all affected Mäori groups can come together to discuss issues. Piecemeal consultation with Mäori on issues did not produce reliable results. The Crown is required by the Treaty not to take a restrictive approach to Mäori rights, but a broad approach to solve the ‘Auckland crisis.’ To put the matter beyond doubt, in relation to the matters covered in this claim involving the CFA, Waipareira has a status no less than that of a tribe, although it does not follow that iwi and the trust should enjoy equal supply. That must be determined through consultation.

The situation was not helped by the fragmentation of government programmes under reforms occasioned by the Public Finance Act 1989 and State Sector Act 1988, and those reforms seemed to concentrate CFA attention on service to the government rather than the public and Mäori. The Acts themselves were not so much to blame as their application without considering the broader Treaty context. The lack of a system of accountability for measuring the effects of policies on communities was a major problem with the current framework however. The way to strike the balance between kawanatanga and rangatiratanga in these systems is not by way of an objective test but through consultation and negotiation in a spirit of partnership.

Recommendations

•  In developing and applying for the delivery and funding of social services to Mäori, DSW and CFA should “deal with any Mäori community which has demonstrated its capacity to exercise rangatiratanga in welfare matters” so as to enhance that rangatiratanga.

•  CFA negotiate with Waipareira with a view to devolving sufficient resources and authority so that the trust can undertake co-ordinated and holistic development within the whänau.

•  Section 396 Children Young Persons and Their Families Act 1989 be amended to replace ‘iwi social service’ with ‘Mäori social service’ and DSW alter its policy accordingly.

•  In its polices and practices the government should aim to protect the rangatiratanga of ‘all Mäori in contemporary situations’, whether kin-based or not, where the “facts of the particular case reveal the exercise of rangatiratanga.”

•  Social and welfare services to Mäori communities should stand as a separate output class designed to promote community development. There should be an opportunity to debate at hui all decisions on funding or delivery of social services which might affect rangatiratanga, so that solutions which enhance rangatiratanga can be debated.

•  Crown policies in social services should be co-ordinated where they are currently fragmented, and Crown agents in discussion with Mäori should represent the views of the Crown as a whole (rather than their particular agency).

•  Te Puni Kokiri is the ensure that mechanisms are developed to monitor the effectiveness of social polices and programmes to Mäori communities, resulting in reports to Parliament.

•  The Minister of Mäori Affairs to initiate an independent review of relations between the Crown and Waipareira trust, for a report in 3 years.

•  Claimants to be paid the reasonable costs of bringing the claim.

[Ed: the media attention this report has received highlights its importance for the future of Treaty claims, Treaty settlements (including the fisheries settlement), and government funding of iwi programmes. It should not however be read as simply determining that urban authorities are the same as tribes. Even where groups do successfully claim that they exercise some rangatiratanga, they may have to compete with local iwi for available funding, and may not enjoy an equal status in that respect.

A decision is awaited from the High Court in Auckland on the meaning of the word “iwi” in the context of distribution of the fisheries settlement. The tribunal notes that it sought and received legal advice that it should not delay the release of this report pending the outcome of that litigation. It remains to be seen whether the High Court will have regard to this tribunal report in its judgment.

The media focus on the iwi/urban authority issue hides a larger theme of the report. The report reflects the muddle in the general policy for the delivery of services to Maori ever since the publication of the Ka Awatea report and the switch away from the policy of devolution to iwi. Ka Awatea advocated a U turn to a policy of mainstreaming - a policy which the Minister of Mäori Affairs now admits is failing. That failure was apparent some years ago, and government health, education and welfare agencies have in effect been operating a partial devolution policy. The muddle has had its costs. The tribunal report notes that in the process of that U turn, millions of dollars in funding were lost for services in the South Auckland region.

The report is also critical of some aspects of the state sectors reforms, specifically of contestable funding of community providers which hinders co-operation between them, and of the new management systems of government which faithfully record the purchase of outputs (eg number of counseling hours purchased), but fail to monitor outcomes in the community sufficiently.

The muddle in Mäori policy remains, with the Minister of Mäori Affairs recently releasing Te Puni Kökiri’s quite brief (26 page) report on Progress towards Closing Social and Economic Gaps Between Maori and Non-Maori, without providing any clear view on what mix of devolutionary and mainstream policies is required to achieve optimum outcomes for Maori. It will be interesting in this respect to see what recommendations for further policy initiatives come out of the various commissions on health, education etc established by the Minister.]

Turangi Township Remedies Report 1998

Wai 84. 6 July 1998. GS Orr (Presiding), IH Kawharu, EM Stokes. 122 pages

Background

In its 1995 Turangi Township Report, the tribunal made 13 findings of Treaty breach against the Crown in the development of that township in association with hydroelectric works, including the compulsory acquisition of 1665 acres of land belonging to Turangitukua hapü, despite promises to take no more than 800 to 1000 acres, and a breach of promises that land in an “industrial area” would only be only leased, and returned when it was no longer required (see Mäori LR Oct 1995). Since the claimants had formally applied for the tribunal to exercise its power to make binding recommendations for the return of certain State owned enterprise (SOE) lands (memorialised lands), the issue of recommendations as to remedies was held over. The tribunal proposed that the parties undertake direct negotiations. However, those negotiations broke down in July 1996, and the claimants asked for a hearing on remedies.

In March 1997, in response to a preliminary issue raised by the Crown, the tribunal reported that, contrary to Crown arguments, the standard of proof for making binding recommendations should be the same as that for non-binding recommendations, and not higher (see Mäori LR June 1997).

This report followed from a full remedies hearing. The Crown did not oppose the making of some binding recommendations, but did oppose the claimant request for such recommendations on all memorialised lands in Turangi.

Approach to recommendations

The tribunal first spelled out its broad approach to remedies. Of the 3 types of remedial actions which the tribunal can recommend that the Crown undertake - compensation, removal of prejudice, and prevention of similar prejudice in the future -  this report was concerned with the first two only. It was significant that s6(3) Treaty of Waitangi Act 1975 talks about prejudice - a broad, rights based concept - rather than “loss”, a concept placing emphasis on material and economic issues. The social and economic capacity of the claimant group, the “generational distortion of its physical and spiritual well-being”, with flow on effects to standards of living, was therefore relevant (Taranaki Report). Nor would a strict contractural approach to remedies be appropriate (Muriwhenua Land Report).

Remedies should have regard to Treaty principles – the relevant ones in this case being the protection of rangatiratanga (in exchange for the cession of sovereignty) and the principle of partnership. Remedies should also have regard to findings as to Crown conduct, in this case the breaking of promises to take no more than a minimal amount of land. An approach which restored rangatiratanga was also appropriate. (Ngäi Tahu ReportOrakei Report) Criteria include (from the Muriwhenua Land Report, and Taranaki Report):

•  Seriousness of property loss

•  Impact of the loss – including numbers affected and land remaining

•  Socio-economic consequences

•  Effect on status and standing of the people

•  Benefits returned from European settlement

•  Lands required to secure a reasonable economic base for the group

•  Impact of reparation on the rest of the community

•  What is required to remove the sense of grievance – which cannot be assumed to dissipate over time.

These are all relevant, although not all will have equal weight. In this case, restoration of some land would be essential to restoring the rangatiratanga of Turangitukua. The tribunal noted (but made no other comment on) the Crown concern that the level of redress should not to be so related to present needs that it becomes disconnected from the historical wrongs being addressed.

The tribunal next discussed its approach to the exercise of its power to make binding recommendations for the return of memorialised lands.

Causal nexus

The tribunal noted that the Crown conceded in this case that tribunal findings of Treaty breach related specifically to properties now in the hands of SOEs and with memorials on them. Nevertheless, the Crown made general submissions that binding recommendations on memorialised lands could only be made by the tribunal where it had found a breach in relation to that land specifically ie there was some specific feature of the history of the asset requiring its return. The tribunal rejected this approach, finding no words or intent in the statute to support such a limited approach to interpretation. A fair, large and liberal construction of the legislation was required.

Added value

Section 8A(3) Treaty of Waitangi Act 1975 provides that the tribunal may not take into account any changes in land since its transfer to an SOE when deciding whether it should be returned. The tribunal strongly rejected submissions from the Crown that this provision 1) prevented the tribunal taking into account any “added value” to land and returning it so as to meet the current commercial aspirations of claimants 2) thus indicating that binding recommendations must be directed to specific historic wrongs affecting specific sites. Contrary to the Crown view, the provision was aimed at ensuring that the tribunal did not feel inhibited in its recommendatory power by improvements which an owner might have made to the memorialised land since transfer to an SOE. In this case, the Crown had effected radical transformation of Turangitukua lands, including the building of the Turangi township, and the tribunal was entitled to take account of all those changes on the memorialised land including any improvements to a date immediately before it was transferred to an SOE (but not after). The Crown view also overlooked the fact that in this case the land taken was papakainga land of the hapü, which was of great importance in its own right. In addition, the 1995 report found a serious breach in that the Crown could have chosen a site on Crown land for the town, but deliberately chose the Turangitukua land instead, after minimal consultation with the people. The grievances in this case clearly related to the whole of the land in the area and not just specific sites.

While the tribunal accepted that s8A(3)/1975 did prevent it from looking at improvements once land is transferred to an SOE, it may in one sense have regard to improvements effected after land has been memorialised, in that it should consider the aggregate value of all memorialised and Crown lands when considering what should be returned. This value might include a valuation of recent improvements. Section 8A(3)/1975 was presumably not intended to rule out such a consideration.

Total relief package

The tribunal made no comment on whether the legislation requires that binding recommendations must be made in the context of a total relief package. Such a total package had been put forward in any case by the claimants. Surprisingly, the Crown did not invite the tribunal to fix a “quantum level” for the settlement package.

Whether to prefer non-binding powers

The tribunal rejected a Crown view that the tribunal must recognise that its main jurisdiction for remedies is to make recommendations which are non-binding. This will depend entirely in each case on what quantities of memorialised as opposed to Crown land remain in a region where a valid claim has been made out. The tribunal also rejected as simplistic the Crown view that, in making recommendations, Crown lands should be exhausted before turning to memorialised properties. All properties should first be reviewed, and recommendations made on the basis of which properties are most suitable to provide a remedy in the circumstances of the case.

Relativity between settlements

The tribunal considered Crown submissions that the tribunal carefully consider relativities between settlements, and claimants submissions that it must be careful to act independently of any Crown view or policy on the issue. The tribunal noted that, unlike the Crown, which may reject findings of the tribunal, the tribunal must consider all breaches which have been found when coming to a view on remedies. Also, the intent of the legislation was that the tribunal would make recommendations which the Crown would implement, not that all settlements would be negotiated. Negotiated settlements were a recent development due to the complexity of large claims. But the legislation still contemplated situations such as the present one, where findings on remedies, rather than negotiations, should prevail – although in general parties would need to agree any final settlement.

The tribunal agreed with the claimants that little useful information could be taken from the two major benchmark settlements to date (Tainui, Ngäi Tahu). The Ngäti Whakaue settlement ($5.2 million) was too imprecise in its details to provide much assistance. The Crown could not give other than very general reasons why it thought that a settlement of $3-4 million (a Crown figure) should apply to Turangitukua.

The tribunal noted that the Crown was not seeking to impose the “fiscal envelope” (of $1 billion) on the tribunal. In any event, that policy had been abandoned – although its influence on the Crown benchmarks for settlements probably remained.

Summary

•  In considering remedies, the claimants were entitled to rely on, and the tribunal to have regard to, all findings of facts and Treaty breaches (regardless of what the Crown might accept).

•  The tribunal acts subjectively in making recommendations – whether binding or not.

•  A remedial, rather than a narrow approach should be taken to the interpretation of provisions giving the tribunal binding powers.

•  In considering remedies, the tribunal should have regard to Treaty principles and the relative seriousness of Treaty breaches.

•  A restorative approach should be taken.

•  A “direct” link between a particular Crown breach or a particular historical feature and SOE land is not required for its return to be recommended. There were in any event ample links and features in this case.

•  Added value – as above.

•  Relativities – as above.

The tribunal added that it was “acutely aware” of the wider political and legal sphere in which it makes recommendations, including the fiscal limitations faced by the Crown. It would have regard to the greater consequences for the Crown of making binding recommendations. The approach would be that a more serious issue requires greater care in assessing it (T v M (1984) 4 NZFLR 462). The tribunal also noted that it would have “general regard” to relativities between the present claim and the Ngäi Tahu, Tainui and Ngäti Whakaue settlements.

Crown Treaty Breaches

The tribunal then reassessed, for the purpose of determining remedies, the particular Crown breaches on which it had reached findings in its 1995 report.

Public works takings and offer backs

•  Taking land which did not have to be taken (ie building the Turangi township on Turangitukua rather than Crown land).

•  Failure to offer back some compulsorily acquired lands when this was required by law.

•  Inability of the claimants to afford lands offered back at near market prices.

•  Failure to protect Article 2 rights.

•  Choice of the township site on Turangitukua land.

•  Taking the freehold and not considering taking only a leasehold interest in the town site.

•  Waahi tapu not protected.

•  Failing to preserve sufficient land for an economic base for the claimants.

•  Failing to mitigate trauma and dislocation arising from construction works.

•  Failure re conservation values, including degradation of fishing and waterways.

Treaty breaches re consultation

•  Minimal consultation before taking the claimants lands.

•  Lack of consultation during Turangi township construction.

Undertakings and assurances not honoured

•  Undertakings that a small amount of land only would be taken and that other land would be leased only.

•  Assurances re protection of waahi tapu.

•  Assurances re the protection of waterways, fish and other conservation matters.

•  Undertakings to work co-operatively during construction works.

•  Undertakings to consult with and compensate particular homeowners for the effects of works.

•  Undertaking to provide water reticulation.

•  Taking land without informed consent.

•  Breaching duty to act as a Treaty partner.

Remedies evidence and assessment

The claimants said that their approach was based on two key principles, 1) to compensate for past wrongs, and 2) to restore themselves to a position where they are able to exercise rangatiratanga in the future. Specifically, they sought:

•  Return and establishment of Turangitukua House;

•  Preservation and maintenance of waahi tapu (monetary compensation was specifically not sought for loss of sites, because of their spiritual nature);

•  Return of 59 residential properties – to be resold to Turangitukua people under a concessionary loan scheme;

•  Ownership of five established kaumätua housing properties;

•  Cash compensation to go towards a “start fund” to build up income producing assets to cater for education, health needs etc;

•  Return of 9 high profile properties in the town, 6 memorialised, three Crown owned (properties included the post office in the town centre, the headquarters of the Department of Conservation and a former hospital);

•  Return of five memorialised properties and nine Crown-owned properties in the “Industrial Area” (where the Crown had promised to only lease the land. A good part of this land was also regarded as tapu);

•  Cash to buy up lands in the Industrial Area not in Crown ownership or memorialised;

•  Ownership of all recreation reserves owned by the Crown in the claim area;

•  Hapü management plan to be given status in conservation management in the area;

•  Timetable to be set to resolve miscellaneous ancillary claims.

In response, the Crown presented several reports in evidence:

•  A report on Mäori Land Court records detailing Turangitukua landholdings immediately prior to the development of the Turangi township in 1964, and giving estimates of the hapü population at that time (around 11-1500 people, with 10-15% living at Turangi). The claimants disputed the figure for those living in Turangi (arguing around 340-370 lived there in 1964) and noted that the evidence did not relate to the broad remedies issues.

•  A report assessing the social and economic impact of the development of Turangi township, arguing that it had some positive benefits (eg tourism). The type and size of benefits was disputed by the claimants.

•  A report on compensation paid under the Public Works Act to Turangitukua families for lands taken. The tribunal commented that this report was useful in assuring claimants that families did receive compensation within the narrow terms of that Act.

Commenting on these submissions from both parties, the tribunal noted that the Crown view of community focused on people living in the township, while the claimant view encompassed all those with kin links and ancestral ties to the area. The claimants spoke of the loss of mana and rangatiratanga, turangawaewae and papakainga, as important to them. The tribunal briefly considered definitions of turangawaewae (“home place”), and papakainga (ancestral home territory – larger than a village) and their relevance in this case. Evidence was provided by the claimants about the effective marginalisation of Turangitukua in their ancestral lands by the town development, where before the development they had been a distinct hapü living in a small but functioning township. The tribunal noted the claimant emphasis in their approach to remedies on the economic and cultural dimensions of community development as a hapü. The recent establishment of a Ngäti Turangitukua Charitable Trust, and development of a list of beneficiaries, was noted with approval by the tribunal.

Recommendations for remedies

The tribunal highlighted once again its approach to remedies (see above), and the particular findings relevant to grievances in this case (also discussed above). As to the precise prejudice suffered by Ngäti Turangitukua, the tribunal endorsed a claimant list covering:

•  loss of land and sudden influx of new population to the area;

•  loss of mana;

•  loss of faith in the Treaty partner;

•  disillusionment and fatalism arising from Crown disregard for tangata whenua;

•  trauma and shock to the people from the loss of land and construction works;

•  degradation of land and waterways;

•  loss through location of the town – without any counterbalancing benefit;

•  loss of right to regain lands when they were freeholded instead of being leased;

•  loss of ancestral land, having multiple effects on the hapü including loss of turangawaewae, spiritual connections through land, and the ability to exercise kaitiakitanga.

The tribunal accepted submissions that it should not have regard to the failure of negotiations, or the contents of without prejudice negotiations when determining remedies. Both parties agreed that land should be part of a settlement, and the Crown was not opposed to some memorialised land being included in a settlement. The task of the tribunal therefore was to quantify how much land, whether memorialised or not, should be returned, and any monetary compensation. A restorative approach would not look to strict monetary equivalents or equity for loss in terms of acreage, but would also bear in mind that the settlement was not for individuals, but for the whole hapü and future generations.

The claimants sought the return of 74 memorialised properties valued at $6.3 million, and 34 other properties of the Crown valued at $3.3 million. Fifty eight other properties in the area potentially available for settlement and valued at $10.2 million, were not sought in a settlement (these included the police station, several schools, and some residences).

The tribunal indicated that it proposed to recommend:

•  Return of the land on which Turangitukua House stands (formerly a waahi tapu);

•  Return of land in the industrial area under memorials (5 properties) and Crown owned land (10 properties);

•  The tribunal declined to recommend that 59 residential properties in Turangi under memorial should be returned. There had been no evidence why such a large number were required, nor precisely which properties would be preferable to others. There were moreover many Crown owned residential properties in Turangi. Accordingly, it proposed to recommend that the Crown make available residential properties up to $700,000, to allow Turangitukua whänau to settle in Turangi. Some properties already land banked by the Crown should be included in these properties.

•  Ownership of 5 properties containing kaumätua flats to be returned by the Crown. The Crown indicated that other Crown properties containing Mäori facilities would be available at a discounted price.

•  Return of high profile properties in Turangi township, both memorialised (6) and Crown owned (3).

The tribunal also recommended that monetary compensation be paid for the establishment of Turangitukua House and the preservation and maintenance of waahi tapu including the establishment of a waahi tapu register, mapping project, and professional advice on preservation.

The tribunal declined to recommend compensation to allow the hapü to repurchase 34 hectares in the industrial area not under Crown ownership or memorialised, since there was inadequate information on those properties.

The tribunal recommended that the Crown establish a “start fund” to give the hapü some working capital for the maintenance and management of returned properties, but declined to recommend a further sum to purchase properties not otherwise recommended for return, as too little information on that proposal was available. This issue should be negotiated directly with the Crown.

As to a claimant request for the return of all recreation reserves owned by the Crown in the claim area, the tribunal noted with concern that in March 1996 the Crown vested 10 small recreation reserves in the Taupo District Council. This action, in light of the 1995 Turangi Township Report and ongoing negotiations, appeared on its face to be an attempt to take lands outside the tribunal powers of recommendation. As to other reserves remaining in Crown hands, the tribunal recommended that the Department of Conservation negotiate with claimants with a view to their return to Turangitukua, and/or joint management which would recognise the mana and rangatiratanga of the hapü.

The tribunal noted claimant comments about environmental degradation on some of the industrial properties earmarked for return, but also noted the Crown submission that evidence on that matter had not been tested. The tribunal accepted a Crown submission that its standard policy was to deal with contamination issues as part of any land transfer process.

The tribunal declined to recommend that the Department of Conservation pay particular regard to a hapü management plan which was to be developed. It noted however, Crown submissions that the Director-General of Conservation may have regard to organisations such as the hapü under s17F Conservation Act, and that there were under the present legislative framework “significant opportunities” for the hapü to operate in partnership with the department.

The tribunal declined to specify a timeframe for the resolution of 83 ancillary claims noted in the 1995 report, because progress with the resolution of those claims was proceeding smoothly.

As required when making binding recommendations, the tribunal identified the Mäori or group of Mäori to whom the land was to be returned (s8A(2)(a)(ii)/1975). In this case the Ngäti Turangitukua Charitable Trust was the appropriate body as the tribunal was satisfied that it was representative of and accountable to some 4947 beneficiaries who had been identified. The Crown accepted that the lands could properly be vested in the trust. The tribunal also directed that all copies of a whakapapa of Ngäti Turangitukua put in evidence be returned by counsel, and one copy only be held in tribunal records.

The tribunal declined for the time being a Crown request to remove all memorials from properties which were not recommended for return in the claim area, because there was a general claim registered on behalf of Ngäti Tuwharetoa also affecting the area, and seeking a recommendation that all “SOE lands” within the rohe of Tuwharetoa be withheld from sale pending resolution of the claim. Representatives of Tuwharetoa were to be asked if they wished to be heard on the Crown request.

In summary, the claimants sought the return of $6.3 million worth of memorialised properties, the tribunal recommended only $3.1 million worth be returned. Crown owned properties worth $2.2 million were also recommended for return, as well as a further $700,000 of Crown residential properties (in lieu of residential properties under memorials sought by the claimants). This brought the total value of the recommendations as to property to $6.1 million ($2.9 million of which was not subject to memorials).

As to monetary compensation, a total payment of at least $1 million was indicated to cover the refurbishment costs of Turangitukua House, preservation of waahi tapu, and provision for a “start fund” (but further discussions with the Crown were needed over any sum to assist in further property purchases).

Finally, the tribunal recommended that reasonable costs and disbursements in bringing the claim should be met by the Crown.

[Ed: this is the first time that the tribunal has made binding recommendations relating to memorialised lands. These are proposed or interim recommendations which, in the absence of an alternative agreement between the parties within 90 days, will become binding on the Crown. The other recommendations the Crown may accept or reject in the ordinary manner. The tribunal has been careful in its approach to the binding recommendations to make it clear that it understands the government sensitivity that an excessive use of them will place strains on  government attempts to put some fiscal limits on claim settlements. It was important that the Crown accepted  in this case that some binding recommendations could be made, and simply sought to limit the extent of the recommendations. The tribunal obliged by not recommending the return of many residential properties under memorials, instead suggesting that a fund be established to buy up properties in Crown hands – precisely the sort of solution favoured by the Crown in the Ngäi Tahu and Tainui settlements. However, the fact that the tribunal felt unable to remove memorials from all properties not subject to interim recommendations must be disappointing to the Crown. Overall, by demonstrating that a combination of a remedies hearing and judicious use of the power to make binding recommendations can produce a result which all parties can live with, the report may establish a new approach to claim settlements for the future.]

Other courts & tribunals

Tamakore Donald McFarlane & Others v New Zealand Mäori Arts and Crafts Institute

CP16/97. High Court Rotorua. 22 April 1998. Master Kennedy-Grant

The plaintiffs, trustees of the Rahui Trust and owners of part of Whakarewarewa Village, sought a summary judgment to enforce an alleged contract between the trust and the defendant institute. The agreement was one of a series of agreements between the parties, whereby the institute charged visitors to the village and the thermal valley a single fee, from which it paid the trust (and its predecessor, the Whakarewarewa Incorporation) an agreed amount.

Held: judgment should be denied. The primary question was the status of the agreements and if they were legally binding contracts or agreements binding in honour only. Three agreements were considered, the only dispute being as to the terms of the last agreement. However, in order to determine the question, regard was given to the status of the first two agreements.

The first agreement of 21 October 1965 was reached as a result of dissatisfaction among the public and tourist operators at having to pay two fees in order to visit the village and the thermal valley. The agreement was for a single fee to be charged and collected by the institute and for an agreed amount to be paid to the incorporation/trust. The agreement was not written and no evidence was before the court from persons involved in reaching the agreement, which was always referred to as “The Gentlemen’s Agreement”. The trust argued that as this was a commercial agreement, a presumption was raised that the parties intended it to have legal effect and the institute had not advanced evidence to rebut that presumption. The institute relied on correspondence between the parties in 1985 which preceded the second agreement as indirect evidence that the plaintiffs did not want a legally binding agreement in 1965. The 1985 agreement resulted from the rejection by the institute of a proposal by the trust to run its own tours through the village and thermal valley. The institute made a counter-proposal which the trust in turn rejected. The institute submitted that the rejection by the trust was evidence of an unwillingness by the trust to move away from the “extant gentlemen’s agreement” to a formal contract.

The court regarded evidence of the Whakarewarewa Village residents’ attitude in 1985 as too far removed in time to draw a conclusion as to their attitude in 1965. Considering it unsafe to make a finding as to the status of the 1965 agreement, the court considered it must be at least arguable that the 1965 agreement was not a binding contract.

As to the status of the 1985 agreement, the court had the benefit of the correspondence preceding the agreement, minutes of the institute’s board meeting and direct evidence of deponents involved in reaching the agreement. The court concluded there was, at least arguably, a distinction in the mind of those present, those who were parties to the agreement, between a legally binding agreement such as was proposed in the institute’s counter-proposal and the gentlemen’s agreement which then existed. It was the gentlemen’s agreement that continued to govern. Accordingly, it was unsafe for the court to make a finding that the 1985 agreement was a binding agreement.

As to the agreement of 1986 directly in dispute, similar evidence was before the court as that produced for the 1985 agreement. Therefore, it was not safe to hold there was a binding agreement. Overall, it was at least arguable that each of the agreements was no more than an agreement binding in honour, and a summary judgment should not therefore issue.

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