December 2011 Māori Law Review

Treaty Settlement Legislation before the House of Representatives in 2011

The Whanganui Iwi (Whanganui (Kaitoke) Prison and Northern Part of Whanganui Forest) On-account Settlement Act 2011 was the only Treaty Settlement Bill enacted in 2011. However, a number of settlement bills are currently before the House.  Carwyn Jones reviews Treaty Settlement legislation in 2011.

Overview and result

The Whanganui Iwi (Whanganui (Kaitoke) Prison and Northern Part of Whanganui Forest) On-account Settlement Act 2011 was the only Treaty Settlement Bill enacted in 2011. However, a number of settlement bills are currently before the House.  Carwyn Jones reviews Treaty Settlement legislation in 2011.

Download the Whanganui Iwi (Whanganui (Kaitoke) Prison and Northern Part of Whanganui Forest) On-account Settlement Act 2011 here (295 KB PDF).

Discussion

Just one Treaty settlement Bill was enacted in 2011, though a number of settlement bills are currently before the House.  Settlement legislation that will implement agreements with Ngāti Maniapoto, Ngāti Porou, Ngāti Pahauwera, and Ngāti Manawa and Ngāti Whare were reported back from the Māori Affairs Select Committee in 2011.  The Ngāti Tāmanuhiri and Ngāti Mākino settlement bills were introduced in 2011.

These Bills were reintroduced to the House on 21 December 2011 as part of the formal reinstatement of business following the General Election and the opening of the new Parliament.

Settlement legislation enacted in 2011

Whanganui Iwi (Whanganui (Kaitoke) Prison and Northern Part of Whanganui Forest) On-account Settlement Act 2011

As the title of the statute indicates, this act gives effect to an ‘on-account’ settlement.  That is, the settlement is not a comprehensive settlement of all the historical claims of Whanganui iwi.  Rather,  this legislation gives effect to the agreement reached between Whanganui iwi and the Crown in order to protect Whanganui iwi interests that may otherwise have been affected by the Ngāti Apa (North Island) Settlement Act 2010.  The Deed of On-Account Settlement records that the value of the transfer of assets under the Deed will be taken into account when the Crown makes an offer of redress for the final settlement of the Whanganui iwi historical claims.

The on-account settlement agreement specifically relates to two sites: Whanganui (Kaitoke) Prison; and a section of the Whanganui Forest.  Under their own settlement agreement, Ngāti Apa have the option to acquire the land under the prison and a section of the Whanganui Forest.  Should Ngāti Apa take up that option, the on-account settlement agreement ensures that Whanganui iwi have the opportunity to acquire a half share of the land under the prison and half of the Whanganui Forest. If Ngāti Apa do not exercise their right to purchase those properties, then the properties will be retained by the Crown.

It should be noted that this type of on-account settlement falls outside the Crown’s general preference to enter into comprehensive agreements to settle all the historical claims of a defined claimant community.  However, this is the second on-account settlement that has been agreed with Whanganui iwi (the first related to the Whanganui court house).  This also sits alongside other recent and high-profile examples of partial or non-comprehensive settlements such as the Central North Island Forests Iwi Collective settlement, the Waikato River settlement, and the Waipa River Co-Governance agreement with Ngāti Maniapoto (see summary of Ngā Wai o Maniapoto (Waipa River) Bill below).  This may be illustrative of the need for the Crown to be more flexible in this area in order to progress settlement negotiations and to ensure issues relating to overlapping claims are managed fairly and effectively.

Settlement bills reported back from Select Committee in 2011

Ngā Wai o Maniapoto (Waipa River) Bill

  • Bill No. 231-2
  • Introduction: 6/11/10
  • First Reading: 17/5/11
  • Select Committee Report: 28/6/11

Ngāti Maniapoto’s  traditional territory extends from Te Awamutu in the north to Waipingau Stream and Taumarunui in the South. Ngāti Maniapoto is one of five iwi with strong interests in the management of the Waikato River and the clean-up project that was part of the Waikato River settlement.

This Bill gives effect to aspects of the Deed in Relation to Co-Governance and Co-Management of the Waipa River agreed between Ngāti Maniapoto and the Crown in September 2010 and aims to create companion legislation to the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 and the Ngāti Tūwharetoa, Raukawa, and Te Arawa Iwi Waikato River Act 2010.  As with the Waikato River legislation, the Bill is based around the overarching purpose of restoring and maintaining the health and quality of the river itself.

The Bill links closely to the Waikato River legislation, applying the vision and strategy set out in Schedule 2 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act to the Upper Waipa River and using the Waikato River Authority established by that act as the primary co-governance entity.  The Bill aims to enhance the co-governance arrangements through provisions that require the co-governance entity to consult with the Maniapoto Māori Trust Board when exercising particular functions  in regard to matters relating specifically to the Upper Waipa River. For example, where a resource consent application relates to the Upper Waipa River, the co-governance entity must consult the Trust Board about who should be appointed to hear the application and about whether the the Minister for the Environment should be requested to ‘call-in’ the application (a process designed to fast-track applications of national significance through the direct involvement of the Minister in accordance with the Resource Management Act 1991). The Bill would also extend the coverage of the Waikato River clean-up fund to include the Upper Waipa River.

Also mirroring the Waikato River legislation are provisions within the Bill which aim to enhance the planning processes relating to the river.  The Bill contains provision for the preparation of an integrated management plan for the Upper Waipa River.  This will include components that relate to conservation management, fisheries management, resource management and other local government functions, and any other components in relation to the management of the river that are agreed between the Trust Board and an appropriate agency.  Once formally approved, these various components link directly into the planning processes under conservation, fisheries, and resource management legislation. The Bill also includes requirements for local authorities to enter into joint-management agreements with the Trust Board.  These are modelled on the joint-management provisions in the Waikato River legislation.

It is notable that the Crown is willing to recognise the Maniapoto Māori Trust Board as the appropriate post-settlement governance entity in this instance.  Māori Trust Boards have reporting accountabilities to the Minister of Māori Affairs and, in general, the Crown prefers not to have this kind of ongoing responsibility in relation to post-settlement governance entities.

Ngāti Porou Claims Settlement Bill

  • Bill No. 270-2
  • Introduction: 15/2/11
  • First Reading: 17/5/11
  • Select Committee Report: 29/8/11

This Bill gives effect to aspects of the Deed of Settlement entered into by the Crown and Ngāti Porou in December 2010.  Ngāti Porou is one of the largest iwi in the country with 72,000 registered members.  Ngāti Porou’s traditional territory is centred around East Cape and runs from Potikirua in the north to Te Toka-a-Taiau in the south.  The total value of the settlement is $110 million, making it one of the larger settlements of historical claims to date.

There has been some opposition to the Ngāti Porou settlement.  Some submitters to the Māori Affairs Select Committee advised that they opposed the settlement and in some instances indicated that they wished to withdraw their claims from the scope of this settlement.  In December 2009, the Waitangi Tribunal heard claims that Te Rūnanga o Ngāti Porou did not have a mandate to represent the hapū of Ruawaipu, Te Aitanga-a-Hauiti, and Uepohatu in settlement negotiations.  The Tribunal found that there was substantial support from within these hapū for the Rūnanga to represent their interests in settlement negotiations and that these hapū would also be able to participate in the post-settlement governance entity and benefit from the settlement (see the Tribunal's East Coast Settlement Report ).  The Tribunal’s findings were subsequently the subject of an application for judicial review (see Koia v Waitangi Tribunal).

Alongside the historical account, Crown acknowledgements and apology, which are standard components of historical Treaty settlements, the Ngāti Porou settlement also includes two distinctive forms of ‘reconciliatory redress’.  First, the Deed of Settlement provides for a process to air Ngāti Porou’s Treaty grievances. Through this process, Ngāti Porou will have the opportunity to put its grievances before the Crown.  The proceedings will be recorded and it is intended that they will contribute to a compilation of a history of Ngāti Porou.    This process is similar to the ‘Telling the Story’ hui convened by a number of Te Arawa iwi and hapū as part of the negotiations that eventually led to the Affiliate Te Arawa Iwi and Hapū settlement.  This type of mechanism might be an attractive option for groups whose preference is to enter direct negotiations without having first had their historical claims inquired into by the Waitangi Tribunal.  Second, the Crown has agreed to recognise the particular and significant contribution of Ngāti Porou to military service by establishing a process whereby Ngāti Porou recipients of defence training scholarships are, with their consent, identified as Ngāti Porou scholars. These aspects of the settlement do not need to be implemented via legislation though the Māori Affairs Select Committee has noted with approval the process for the airing of historical grievances and the intention to record and transcribe those stories that are part of the history of Ngāti Porou.

As part of the cultural redress component, fifteen sites of cultural and historical significance will be vested in Ngāti Porou, totalling approximately 5,898 hectares.  Statutory acknowledgements over the Waiapu and Uawa Rivers and their tributaries are included in the Bill.  The Bill also provides for the establishment of a ‘strategic conservation partnership’ between Ngāti Porou and the Crown.  Under these provisions, the Crown and Ngāti Porou will jointly develop a separate section of the East Coast Bay of Plenty Conservation Management Strategy.  This will be known as ‘Ngā Whakahaere Takirua mō Ngā Panga Whenua o Ngāti Porou’ and will have the same effect as Conservation Management Strategies that are promulgated under the Conservation Act 1987.

Six Crown properties will be vested in Ngāti Porou as commercial redress.  Ngāti Porou will also have the opportunity to purchase 21 Crown-owned properties up until two years after settlement date and a right of first refusal for a period of 170 years after settlement date in relation to specific Housing New Zealand corporation properties.

Ngāti Pāhauwera Treaty Claims Settlement Bill

  • Bill No. 273-2
  • Introduction: 1/3/11
  • First Reading: 17/5/11
  • Select Committee Report: 29/8/11

Ngāti Pāhauwera is a confederation of hapū with historical interests in northern Hawke’s Bay.  Ngāti Pāhauwera currently has approximately 6,000 registered members. The Waitangi Tribunal reported on the claims of Ngāti Pāhauwera in the Mohaka River Report and the Mohaka ki Ahuriri Report.  Ngāti Pāhauwera’s claims relate to Crown acquisition of land through early land transactions and confiscation that resulted in significant land loss and had severe, long-term socio-economic consequences.  The total value of the settlement is $20 million plus the value of a number of the properties transferred as both cultural and commercial redress.

Questions of mandate were raised by submitters to the Māori Affairs Select Committee, though mandate issues had already been considered by both the Māori Land Court and the Waitangi Tribunal.  In 1994, the Māori Land Court made an order, under section 30 of Te Ture Whenua Māori Act 193, appointing eight people to represent Ngāti Pāhauwera in Treaty claims settlement processes.  In the Mohaka ki Ahuriri Report, the Waitangi Tribunal recognised the mandate of those eight representatives.  Trustees of a new governance entity, the Ngāti Pahauwera Development Trust, took over responsibility in 2008 for representing Ngāti Pāhauwera in settlement negotiations.

The Bill provides for a range of cultural redress to be provided to Ngāti Pāhauwera.  Sixteen sites totalling approximately 1087 hectares will be vested in Ngāti Pāhauwera, subject to various conditions.  A significant aspect of the cultural redress is the vesting of Te Heru o Tūreia conservation area in Ngāti Pāhauwera.  The majority of that site is to be immediately gifted back to the Crown though Ngāti Pāhauwera will retain an area of 160 hectares around the summit and nearly 53 hectares next to the Mohaka River.  The area around the summit will be held under a registerable conservation covenant and the area next to the river will become an historic reserve.

Other cultural redress that would be given effect to by this legislation includes a restriction on the extraction of hāngi stones from Ngāti Pāhauwera’s core area of interest without consent from Ngāti Pāhauwera.  The Bill also provides for the Ngāti Pāhauwera Development Trust to be appointed as an advisory committee to the responsible minister in relation to the Mohaka River and the fishing area known as Wairoa Hard and for Ngāti Pāhauwera to nominate members to any special tribunal convened to address applications relating to the Mohaka River Water Conservation Order.

Thirteen Crown properties will be vested in Ngāti Pāhauwera as commercial redress including some licensed Crown forest land.  Ngāti Pāhauwera will also have a right of first refusal to purchase surplus Crown property within their core area of interest for up to 100 years after the settlement date.

Ngāti Manawa and Ngāti Whare Claims Settlement Bill

  • Bill No. 225-2
  • Introduction: 12/10/10
  • First Reading: 19/10/10
  • Select Committee Report: 29/3/11

This Bill is an omnibus Bill that would give effect to Deeds of Settlement agreed with two settling groups.  It is intended that the Bill will be divided in two when it is before the committee of the whole House.  One part will become the Ngāti Manawa Claims Settlement Bill and the other part will become the Ngāti Whare Claims Settlement Bill.

Ngāti Manawa and Ngāti Whare are neighbouring iwi from the central North Island, with approximately 3,500 registered members each.

Ngāti Manawa

Ngāti Manawa’s traditional territory is based around Murupara and takes in parts of the Kaingaroa Forest and the upper Rangitaiki River. Ngāti Manawa’s historical Treaty claims cover a range of issues and include actions taken by the Crown in relation to matters arising out of the armed conflicts of the 1860s, alienation of land through the 1870s – 1890s, and the damming and pollution of key waterways such as the Rangitaiki, Wheao, Horomanga, and Whirinaki Rivers.

A number of sites will be returned to Ngāti Manawa as cultural redress, including wāhi tapu and some areas of licensed Crown forest land.  Four sites will also be jointly vested in Te Rūnanga o Ngāti Manawa and Te Rūnanga o Ngāti Whare.  The Bill provides for the establishment of an overlay classification, to be known as ‘Ahikāroa’, which will apply to the maunga Tāwhiuau, located in Te Urewera National Park.  This overlay classification acknowledges Ngāti Manawa values in relation to Te Tāwhiuau, as set out in the schedule to the Deed of Settlement.  It places obligations on the Department of Conservation to ensure that Ngāti Manawa have input into the management of the site to avoid harming or diminishing those values.

In addition to statutory acknowledgements, the Bill also provides for specific redress in relation to rivers within Ngāti Manawa’s rohe.  The Bill sets out the ‘Rangitaiki River Management Framework’ which covers the Rangitaiki, Wheao, Horomanga, and Whirinaki Rivers.  As part of this framework the Rangitaiki River Forum will be established as a joint committee of the Bay of Plenty Regional Council and the Whakatane District Council comprised of members appointed by those two councils and by Ngāti Manawa, Ngāti Whare, Ngāti Awa, and Ngāti Tūwharetoa (Bay of Plenty).  The purpose of the Forum is “the protection and enhancement of the environmental, cultural, and spiritual health and well-being of the Rangitaiki River and its resources for the benefit of present and future generations.”  The Forum would also be charged with preparing the Rangitaiki River Document that may contain a vision for the river, objectives, or desired outcomes.  When preparing or changing the Bay of Plenty regional policy statement, the Bay of Plenty Regional Council would then be required to recognise and provide for any visions, objectives, or desired outcomes contained in the River Document.  Similarly, the New Zealand Conservation Authority would be required to have particular regard to those matters in the River Document if it was approving a conservation management strategy that was relevant to the Rangitaiki River.

Ngāti Manawa’s financial redress has been addressed through the Central North Island Forests Iwi Collective settlement.  As part of that settlement, Ngāti Manawa will receive $12.2 million in financial redress.  Ngāti Manawa also has the option to purchase any of nine specified surplus Crown properties via a deferred selection process and the Bill will enable the transfer of those properties to take place.

Ngāti Whare

Ngāti Whare’s traditional territory is based around Te Whaiti, Minginui and what is now the Whirinaki Conservation Park.  Ngāti Whare’s historical grievances relate primarily to the Crown’s actions during the 1860s wars, restrictions on land use and alienation, the Urewera District Native Reserves Act 1896, and more recent government actions relating to forestry and conservation that had particular consequences for Ngāti Whare.

Along with four sites to be jointly vested in Ngāti Manawa and Ngāti Whare, the Bill has provisions for the vesting of five wāhi tapu and seven other cultural redress sites in Ngāti Whare.  Ngāti Whare are also a party to the Central North Island settlement and their commercial and financial interests have been addressed through that settlement.  The total value of the settlement is $15.7 million comprising redress already provided in the 2008 Central North Island settlement and $1.976 million in cultural redress giftings.

The Bill also includes provisions that would give effect to important aspects of the cultural redress package that relate to the Whirinaki Conservation Park.  Ngāti Whare will be involved with the Department of Conservation on the development of a Conservation Management Plan for the park.  Two sites within the park will also be designated as Specially Protected Areas.  These sites are:  Tūwatawata and Te Whāiti-Nui-a-Toi.  Five new conservation areas will be added to the park as part of the settlement.  The Bill also provides that 640 hectares of regeneration land will be held by a joint Crown/Ngāti Whare trust (the Te Pua o Whirinaki Regeneration Trust) in order to regenerate back to indigenous forest this area which is subject to the Whirinaki Crown forest license but also bisects the Whirinaki Conservation Park.

Ngāti Whare is, as noted above, also involved in the Rangitaiki River Management Framework and the Rangitaiki River Forum to be established as part of that framework.

Settlement bills introduced in 2011

Ngai Tāmanuhiri Claims Settlement Bill

  • Bill No. 320-1
  • Introduction: 22/8/11

Ngai Tāmanuhiri is an iwi based in the Gisborne region.  According to the 2006 census figures, the iwi has approximately 1,700 members.  The Ngai Tāmanuhiri area of interest extends from Kopututea (south of Gisborne city) south over the Wharerata Forest to Paritū (north of Mahia) and inland towards Lake Waikaremoana.  Ngai Tāmanuhiri’s grievances relate to Crown actions from the 1860s and later including an attack by Crown forces on the pa at Waerenga a Hika in 1865, the exile of Tūranga men, including some Ngai Tāmanuhiri, to the Chatham Islands, confiscations and other alienations of their lands, including public works takings as late as the 1980s.

The Bill would give effect to the transfer of Young Nick’s Head Historic Reserve to Ngai Tāmanuhiri and one other cultural redress property at Mangapoike.  Statutory acknowledgements will be established over the Waipaoa River and the Ngai Tāmanuhiri coastal marine area.

The Bill also includes provisions for the establishment of a ‘Local Leadership Body’.  This is to be a statutory body comprised of members appointed by Ngai Tāmanuhiri, Rongowhakaata, Te Aitanga a Māhaki (being the three main Tūranga groupings) and members appointed by the Gisborne District Council.  The purpose of the Local Leadership Body is, in part, “to contribute to the sustainable management of the natural and physical resources in [the area specified in Subpart 3 of Part 2 of the Bill] for the use and enjoyment of future generations, while recognising and providing for the traditional relationship of Ngai Tāmanuhiri, Rongowhakaata, and Te Aitanga a Māhaki and Affiliates with their ancestral lands, water, sites, wāhi tapu, and other taonga”.

The total value of the financial and commercial redress agreed in the Ngai Tāmanuhiri settlement is $11.07 million plus interest.  The Bill will provide for the transfer of part of the Wharerata Forest, which is currently Crown forest land.  The Crown will retain 50% of the Wharerata Forest to be used in other settlements where there are established historical Treaty claims relating to the forest.  The Bill also will provide for the rights of first refusal over specific Crown properties that are agreed in the Deed of Settlement.

Ngāti Mākino Claims Settlement Bill

  • Bill No. 335-1
  • Introduction: 4/10/11

Ngāti Mākino are a group of approximately 2,000 registered members based in the Bay of Plenty.  Their area of interest runs from Lakes Rotoiti and Rotoma to the coast. Ngāti Mākino’s claims relate to the impact of the 1866 Eastern Bay of Plenty raupatu on Ngāti Mākino; the Crown’s failure to provide Ngāti Mākino with a form of collective title in the native land laws until 1894; improper land purchase techniques used by the Crown and the Crown’s failure to ensure that Ngāti Mākino were left with sufficient land for their present and future needs.

The Bill will give effect to the vesting in Ngāti Mākino of eight sites of special cultural and/or historical significance. The Bill will also establish an overlay classification (whenua rāhui) over 256 hectares of Lake Rotoma Scenic Reserve.  The settlement also includes a statutory acknowledgement and deed of recognition over the Lake Rotoma Scenic Reserve and a statutory acknowledgement over the Lake Rotoiti Scenic Reserve.  The cultural redress package includes payments of $500,000 and $1 million for social service development and marae restoration respectively, although these aspects of the settlement do not need to be given effect by legislation.

Ngāti Mākino will receive a further $9.8 million as financial redress from which they intend to purchase the remaining 3,450 hectares of the Rotoehu West licensed Crown Forest land.  Provision is made in the Bill for this transfer and for the transfer of one further commercial redress property, the Otamarākau School site.  The Bill will also establish rights of first refusal over five sites of public conservation land.

The Bills reviewed here can be accessed at www.legislation.govt.nz.