November 2012 Māori Law Review

Te Urewera, Part III: From self-governing native reserve to national park

Te Urewera (pre-publication edition), Part III: From self-governing native reserve to national park

Waitangi Tribunal (Wai 894, 2012)

Part III of the Tribunal's report on its district inquiry into Te Urewera has been released in a pre-publication edition.

This part of the Tribunal's report tells the story of the transformation of land that came to form Te Urewera national part from self-governing native reserve to national park. The Tribunal found it was a story containing many broken promises. These ranged from failures to respect autonomy and tribal-level dealings in land through to failures to construct roading infrastructure. The governance and management of the national park was exclusionary of tribal interests. The issues relating to the national park sit at the heart of the claims of the peoples of Te Urewera and the Crown admitted in this inquiry that it obtained most of the park lands in breach of the Treaty.  The Tribunal is of the view that this needs to be more widely known if grievances are to be properly acknowledged and resolved and therefore hopes that this report “lays to rest the myth that the Crown acquired the park lands in fair and clean transactions.”

Carwyn Jones and Te Rangimārie Williams have prepared the following summary of this part of the Tribunal's report.

Download Te Urewera (pre-publication edition), Part III here.

Overview

The third part of the Waitangi Tribunal's Te Urewera report has been released in a pre-publication edition.

Part III is primarily concerned with issues relating to Te Urewera National Park and the background of events that led to the establishment of the park.  The four chapters in Part III tell the story of the transformation from self-governing native reserve to national park.  There are four key themes that run through these chapters:

  • the Crown’s defeat of promised self-governance;
  • its repeated broken promises;
  • extensive land loss; and
  • the creation of a national park in Te Urewera which has come to symbolise dispossession.

Background

On 22 October 2012, the Waitangi Tribunal released Part III of its Te Urewera report in pre-publication format.  The pre-publication of Part I was released in 2009, followed by Part II in 2010.

Part I set out some background to the claims in the inquiry and the history of the peoples of Te Urewera.  It covered actions and omissions of the Crown in its dealing with the peoples of Te Urewera from 1840 until the armed conflict of 1869-1871.

Part II addressed a range of significant events and Crown actions, either within or related to the Urewera district, which occurred between the 1860s and the first half of the twentieth century.  This included further armed conflict and land alienation.  Part II also provides an analysis of the Urewera District Native Reserve Act 1896 (‘the UDNR Act’), an important part of the context for issues addressed in Part III.

Part III is primarily concerned with issues relating to Te Urewera National Park and the background of events that led to the establishment of the park.  The four chapters in Part III tell the story of the transformation from self-governing native reserve to national park.  In his letter of transmittal, the inquiry’s presiding officer, Judge Patrick Savage, identified four key themes that run through these chapters:

  • the Crown’s defeat of promised self-governance;
  • its repeated broken promises;
  • extensive land loss; and
  • the creation of a national park in Te Urewera which has come to symbolise dispossession.

Discussion

Chapter 13 -  Te Ngakau Rukahu (The Crown's Promise Proves false): The Fate of the Urewera District Native Reserve

The UDNR Act is described by the Tribunal as follows (at [13.1]):

In the history of relations between the peoples of Te Urewera – particularly Tūhoe – and the Crown, the Urewera District Native Reserve Act 1896 (UDNR Act) was a watershed. It was a unique piece of legislation passed by the New Zealand Parliament to provide for Tūhoe self-government through a General Committee (te Komiti Nui o te Iwi) and local committees (ngā Komiti Hapū) to protect and manage their lands within a formally constituted tribal district. The Native Land Court was to be excluded from the rohe, and titles would be determined instead by a commission comprising two Pākehā and five Tūhoe commissioners. The land defined as the Urewera District Native Reserve (the Reserve) was to provide permanent protection for the peoples, their lands, forests, birds, their taonga, and their customs and way of life. The passing of the legislation followed negotiations over a considerable period between Te Urewera leaders, Premier Seddon, and Native Affairs Minister Timi (James) Carroll. It seemed to herald a new era in Te Urewera, in which a lasting relationship between iwi and the Crown would be founded on mutual recognition of their rights and responsibilities.

Chapter 13 addresses two key questions in relation to the UDNR Act and the alienation of Reserve lands:

  • Why were the self-government provisions of the UDNR Act defeated? And
  • Why and how did the Crown purchase extensively in Reserve lands from 1910?

Why were the self-government provisions of the UDNR Act defeated?

The Tribunal panel focused on four areas in its inquiry into this question: delays in establishing the first Urewera Commission (Commission); the slow work of the Commission in title determination; the Crown's responsibility once it realised the delays of the Commission; and the reasons why the General Committee (the key governing body under the UDNR Act) was unable to establish itself as a strong political force.

The Tribunal found (at [13.8]) that the Crown had a Treaty obligation and an obligation under the law to provide for and protect mana motuhake (Tūhoe political authority) yet the Crown failed to meet that obligation.

The Tribunal specifically found that the Crown [13.8]:

  • failed to engage with Te Urewera leaders as to best means of giving effect to the UDNR legislation;
  • failed to take steps to ensure provisional local committees were set up in a timely matter once it became evident title determination would take a long time;
  • failed to provide for those committee's to elect a general committee expeditiously so the UDNR Act could be given effect to;
  • failed to take any active steps to ensure the general committee was able to exercise its powers of self-government within a reasonable time;
  • manipulated the way the general committee was set up; and
  • failed to take steps to make regulations to assist the committees.

The Tribunal also found the Crown breached the Treaty principles of autonomy, active protection and partnership.  In particular (at [13.8]), the Crown:

  • failed to consult Te Urewera leaders before and after work of the first Urewera Commission to ensure the Act was implemented in accordance with Crown guarantees;
  • failed to consult on regulations; and
  • failed to ensure committees were properly constituted to manage affairs, lands and resources of Te Urewera.

In relation to land title determination, the Tribunal commended the Crown for establishing a commission with a Tūhoe majority.  However the Tribunal found the Crown breached the Treaty principles of autonomy, active protection and good governance.  In particular (at [13.8.1]) the Crown:

  • failed to ensure majority owner participation. In this respect the Crown should have provided for an alternative to ensure the majority was not eroded;
  • failed to provide for Tūhoe Commissioner's in the appellate bodies;
  • failed to ensure appeals were heard quickly so owners gained security of title;
  • knew of Tūhoe objection to Native Land Court processes and should have intervened when the Commission began adopting those practices; and
  • failed to separate the electoral provisions of the Act from the slow title-determination processes of the Urewera commission.

Why and how did the Crown purchase extensively in Reserve lands from 1910?

The Tribunal found (at [13.8.2]) that the Crown breached Treaty principles of autonomy and active protection by:

  • Not consulting the general committee when purchasing from individuals;
  • Failing to establish the general committee properly; and
  • Failing to ensure the general committee could meet its obligations under the law to contract to sell land to the Crown.

The Tribunal found (at [13.8.2]) that the Crown breached the principle of active protection by:

  • predatory purchasing from individuals in virtually every block in the Reserve over a number of years;
  • controlling both valuations and prices, valuing UDNR lands by unlawful and flawed processes, and being quite unable to justify the prices paid;
  • amending the UDNR Act to secure control of the Land Court partitioning process in Reserve blocks in order to prevent owners who did not wish to sell from obtaining court awards of land they wanted to keep. This was an unwarranted interference with Māori owners’ property rights, as the Crown acknowledged – with the sole purpose of facilitating Crown purchase; it denied Reserve owners the rights that other Māori owners had to seek to partition their lands and, while purchasing continued, denied them security of tenure in respect of a given location within a block;
  • failing to ensure that Māori who sold interests were not being left ‘landless’, even though the Crown had established protections (albeit limited) for Māori sellers in its mainstream legislation; and
  • purchasing with complete lack of concern for the present and future well-being of the resident tribal communities.

The Tribunal also found that the Crown failed in its Treaty duty to protect the peoples of Te Urewera in their right to develop their properties and taonga guaranteed them by the Treaty and to ensure Tūhoe received the mutual benefits envisaged by the Treaty.

In relation to the UDNR Act, the Tribunal concluded (at [13.8.2]):

The Crown totally failed to give effect to its promises in the UDNR Act; failed to act fairly, reasonably, and honourably; failed to protect the mana motuhake of Tūhoe, which in the developing colonial economy required a strong economic base, and failed to protect the Treaty rights of all the peoples of Te Urewera.

Chapter 14 -  Te Whakamoana Whenua: The Urewera Consolidation Scheme

Chapter 14 examines the Urewera Consolidation Scheme (‘the Scheme’) through five main elements and five corresponding questions:

1. The origins and reasons for a consolidation scheme, and how far Māori owners consented to the design and implementation of the scheme; Why was a consolidation scheme chosen for the Reserve lands?

Plans for a scheme emerged in 1919.  This was in light of title fractionation and land fragmentation that resulted from the individualisation of title under UDNRA.  This was also at a time when the power of the Native Land Court to partition interests was revoked.

The Crown proposed the Scheme as it wanted all Crown land in one block and believed the scheme would facilitate the purchasing of remaining Māori land.  Māori interests under the Scheme would be consolidated so each emerged with a discrete block of land.

In May 1921 the Crown formally proposed the Scheme and offered further benefits including secure title to land, the building of roads, and the cessation of Crown purchasing of individual shares.

Māori believed that under the Scheme they could pool their remaining interests in land and use it for further economic development.  On the basis of the Crown promise and Māori desire to retain control of the land, Māori consented to the scheme.

The Tribunal found that Māori were not coerced into consenting to the scheme (at [14.10]), however, this did not mean Māori consent was free, willing and informed.

The Tribunal also found that the consolidation scheme was the only choice left to Māori as the option of partitioning no longer existed (at [14.5.4]).

The Urewera Lands Act 1921-1922 ("the Act") legalised the Scheme as finalised by the Crown.  The purpose of the Act was to carry into effect arrangements that had been agreed between the Crown and the Māori at the Tauarau hui.

The Tribunal found (at [14.10]) that this Act was in breach of the Treaty principles of partnership and autonomy because the Crown did not refer the proposed legislation back to Māori to consider before enactment; consolidation commissioners were appointed with sole authority to make final decisions about the location of awards and any matters to do with the scheme; and, there was no right of appeal for Māori from the commissioners' decisions.

2. How the land was actually divided and interests swapped among Māori and between Māori and the Crown? By what process were interests consolidated and the land divided between Māori owners and the Crown?

At the Tauarau hui Māori owners were organised into groups of owners known as 'consolidation groups'.  Individual interests were translated into shares, the value of these shares based on the valuation of the Reserve block and the number of interests each owner had in the block.  Māori owners then formed consolidation groups through pooling their shares.  At the end of the hui, almost 9/10 of the interests of Tūhoe owners had been incorporated into consolidation groups.

After the passing of the 1921-1922 Act the consolidation commission ("Commission") held hearings from December 1921 to July 1925.  Surveyors prepared topographical plans of the area being investigated and the Commission would hear from a representative of a consolidation group who would indicate where they wanted their interests located.  The Commissioners would either accept or decline the requests and if there were any objections they would leave it to Māori to decide among themselves or award land to one or more groups.  210 blocks were awarded to Māori owners totaling 106,287 acres 3 roods.  27 papakainga or urupa reserves were set aside totaling 90 acres.  The orders were signed by the Chief Judge of the Native Land Court.  The Crown, in contrast was awarded 482,300 acres in June 1927 in the form of one block.

At Te Whaiti the Commission used its powers granted under the 1921-1922 Act to favour Crown interests and obtain the majority of the millable timber on blocks.  Māori interests were relegated to a comparatively worthless residue block. This, the Tribunal found, breached principles of the Treaty to the significant prejudice of Ngāti Whare and Ngāti Manawa, the iwi with interests in this area.  The Tribunal found that the Crown originally gained its interests in the Te Whaiti block in breach of UDNR promises and the Treaty thus they should have accorded Māori owners first choice of location (at [14.10]).

3. How the Crown acquired the Waikaremoana block, and the effects of that acquisition on the peoples of Waikaremoana; What effect did the implementation of the scheme have on Waikaremoana peoples?

The Crown originally refrained from purchasing interests in Waikaremoana.  However at the Tauarau hui of August 1921 a decision was made to include Tūhoe Waikaremoana interests in Scheme.  It was proposed the entire block would be awarded to the Crown subject to separate arrangements with Ngāti Ruapani and Ngāti Kahungunu.

The Tribunal found that there was some compulsion in the acquisition of the Waikaremoana block.  The Crown made clear at a 1921 May hui that it intended to acquire Waikaremoana.  The possibility of compulsion was a factor in the choice made at Tauarau to vacate the Waikaremoana block in favour of other lands.

Ngāti Ruapani and Ngāti Kahungunu reluctantly agreed to sell their interests in Waikaremoana as they were unable to exchange lands with other lands and the Crown made it clear it was going to acquire the whole block.

4. The type of surveys required, the costs of those surveys and how they were met, and the promise of land transfer titles; What agreements were reached about titles and how was the cost of surveys met?

Māori were promised indefeasible land titles at the Tauarau hui but were unable to register lands in the land transfer system as they did not have full surveys of the land.  To rectify this, the Commissioners took 31,500 acres (18% of remaining Māori land) of land to pay for surveys.

The Tribunal found that these surveys could have been completed at a substantially lower price.  In the end no land titles were registered.  This, the Tribunal found, was a breach of the Treaty principle of active protection.

The Tribunal also found the Crown breached the Treaty principle of equality in that the usual cost for Māori who wanted to put their land under the land transfer system was 5% of existing land, where Tūhoe had paid 18% (at [14.10]).

5. The promise to build arterial roads, and the Māori owners’ contribution of land for that purpose; Should Māori owners have contributed 40,000 acres toward the cost of constructing two arterial roads ?

At a Ruatoki hui in February 1920, the Minister of Lands met with Tūhoe to discuss possible roading lines.  Māori asked for a road to be formed up the Whakatane Valley.

At the Tauarau hui Māori were asked to contribute £32,000 worth of land toward the cost of the roads.  Māori negotiated this down to £20,000 worth of land.

Māori provided this land but the roads were never completed.

The Tribunal found (at [14.10]) that Māori were under no obligation to have provided any land for the roads. The cost of building main roads at that time was met by the central government and was 'reimbursed' through economic growth and an increased tax base.  Tūhoe leaders were misled by Ngata and the Ministers into thinking they had an obligation to pay.  When Te Taha Apitihana and others objected to this payment, the Crown should have admitted Māori were under no obligation to pay and given up its claim to this land.  The Tribunal found the Crowns actions were a breach of the Treaty principle of active protection.

Further, the Tribunal found (at [14.10]) the 1958 settlement between Tūhoe and the Crown, and payment of £100,000 compensation, did not adequately address the Crown's failure to complete the arterial roads.

Chapter 15 - Kai Te Ora Tonu Te Wairua O Wenei Tangata (The Spirit Of These People Is Alive): The Impacts On Mana Motuhake And Mana Whenua Of The Crown’s Defeat Of The Urewera District Native Reserve Act, And The Urewera Consolidation Scheme

Chapter 15 of the Tribunal’s report considers the extent of the prejudice to the peoples of Te Urewera that was caused by the Crown’s acts and omissions.

The Tribunal particularly addressed impacts on mana motuhake (political authority) and mana whenua (authority over land) and considered two key questions:

  • What were the impacts of Crown acts and omissions on self-government in Te Urewera, and the relationship of its peoples with the Crown?
  • What were the impacts of Crown acts and omissions on hapū relationships with their land, and on the economic capability of the peoples of Te Urewera?

The Tribunal noted (at [15.2.2]) that the people of Te Urewera were prejudiced by the Crown’s failure to effectively implement the self-governance structures that comprised a central plank of the UDNR Act.

The Crown undermined the authority of the committee system constructed by the UDNR Act and the eventual repeal of the Act had long-term consequences for Tūhoe and their relationship with the Crown, as reflected in the lack of consultation over the establishment of the national park and the lack of representation on the governance and management bodies for the park.

The Crown purchasing and consolidation scheme, and the string of broken promises further damaged the relationship between the Crown and the peoples of Te Urewera.

The impact of Crown actions on hapū relationships with their land, and on the economic capability of the peoples of Te Urewera was extremely significant:

“By 1930, what had been intended as a self-governing Reserve, in full ownership and control of its Māori owners, was reduced to a shadow of its former self. These former owners no longer had a legal right to 482,300 acres of their ancestral heartland, which had become Crown land. Their ability to exercise kaitiakitanga over taonga within their rohe would be put to the test in subsequent years, as we explore in the next chapter. On top of this, the fragment of their remaining land had been fundamentally reordered: their new blocks of land were in multiple-ownership, and titles would fractionate with each succeeding generation. Some owners – as many as ten percent – became landless; an outcome which officials took little care to avoid. The wider and inevitable result of land alienation on this scale was a substantial reduction in the economic capability of communities who had already lost their best land. To pose the question of whether Reserve block owners generally retained ‘sufficient’ land would in our view do no more than highlight the fate of a Reserve which the Crown had committed itself to protecting. It is not a question we should have had to ask.  And the answer is so obvious we refrain from spelling it out.”

Chapter 16 - Te Kapua Pouri: Te Urewera National Park

This chapter addresses the establishment and management of Te Urewera National Park.  The Tribunal focused on five key questions in this chapter.

1. Why and how was a national park established in Te Urewera?

The Tribunal set out in some detail the history of the establishment and administration of Te Urewera National Park from 1954 till the present day.

The Tribunal found (at [16.5.5]) that by 1957 a large national park had been established on what had previously been the Urewera District Native Reserve.  The purpose of establishing a national park in Te Urewera was to promote the accommodation of recreation, preservation, and ‘national interest’ measures as well as protecting scenic landscapes and forests and especially to regulate milling in the area.

The park was first established in 1954 and then significantly expanded in 1957.  There was no meaningful consultation with Tūhoe leaders about either the creation of the park or its extension and the new park was administered under an Act that made no formal provision for Māori interests distinct from what was perceived to be ‘the national interest’ (at [16.5.9]).

2.  How has the national park affected the economic opportunities of Māori communities in Te Urewera?

The Tribunal found that the park’s establishment, and Crown policies and practices associated with managing the park, have had significant effects on the economic opportunities of Māori in Te Urewera.

Since the establishment of the park the Crown has been concerned to regulate the use and development of the surrounding land in order to advance preservationist policies.  The economic needs of local Māori have been subordinate to those policies, and, prior to the 1980s, the Tribunal noted (at [16.6.2]) that “the default policy position of the Crown and of park management was that virtually any and all Māori land in and around the park should be acquired.”

Neither has the park delivered any significant economic opportunities to the peoples of Te Urewera.  The Tribunal concluded (at [16.6.3]):

“It is entirely consistent with the national parks concept and legislation that government and park officials have been more focused on the park’s conservation qualities than on the peoples living there, but it certainly has not helped Te Urewera peoples derive income from the park. The failure of the park to deliver much in the way of economic opportunities through tourism mirrors the failure of Seddon’s and Carroll’s vision for Te Urewera over a century earlier. The land has, as Carroll proposed, become ‘a resort for tourists in the future’, but in the present, offers little economically to the peoples of Te Urewera.”

3.  Did the Crown purchase Manuoha and Paharakeke from informed and willing sellers, and was the purchase fair in all the circumstances?

The Manuoha and Paharakeke blocks were the two Māori-owned land blocks that the Crown succeeded in buying for the national park.  The Tribunal summarised (at [16.7.1]) the key issues in relation to these blocks as follows:

“At issue between the Crown and the claimants in this inquiry is whether the Crown purchased the blocks for the national park from informed and willing sellers, whether the sellers received the full value of the timber and the land, and whether the Māori owners should have had to sell the land to realise the value of their timber resource.”

The Tribunal’s assessment of the evidence led the panel to conclude that the Māori owners were not unwilling sellers of these blocks by the date of the sale (at [16.7.4]).  However, the Tribunal found that the Crown did not behave in a scrupulously fair way in these transactions.  Full information was not provided to the owners and the valuation used by the Crown was based, in part, on “an unprincipled and unfair reduction of the value of th[e] timber”. (At [16.7.5].)

4.  How has the national park affected the ability of Te Urewera peoples to continue their customary uses of park lands and their exercise of kaitiaki responsibilities?

Whilst Crown ownership in and of itself had not prevented the peoples of Te Urewera from undertaking their kaitiaki responsibilities, once the national park was established the constraints on traditional hunting and harvesting increased.

The Tribunal found (at [16.8.5]) that “[t]he national park regime has – variously – ignored, undermined, fragmented and, more recently, paid lip-service to the kaitiaki responsibilities of the peoples of Te Urewera” and that this largely stems from a disjunction between the preservationist principles and policies of the National Parks Act and the needs of the communities of Te Urewera.

Crucially, the Tribunal’s view is that this need not be the case: “Well conceived and administered, a park could be protective of Māori traditional uses, and assist people in fulfilling their kaitiaki responsibilities.” (At [16.8.5].)

5.  To what extent have the peoples of Te Urewera been represented or otherwise involved in the governance, management and day to day administration of Te Urewera National Park?

Though there have almost always been representatives of the peoples of Te Urewera involved in the management structures of the park, there have never been any statutorily guaranteed membership for such representatives on any of the authorities or boards that have had governance or management responsibilities for the park. (At [16.9.2].)

On this issue, the Tribunal found (at [16.9.5]):

“Overall, the record of involvement of local iwi in governance, management, and everyday running of a park – which is the most dominant feature in their landscape, created on their ancestral lands, with which they retain strong associations, and administered in ways which affect their lives so closely – is not impressive. In over fifty years of park administration, the Crown made little effort to ensure the active participation of local iwi, particularly Tūhoe.”

Treaty breaches

Ultimately, the Tribunal determined that the Crown had breached the principles of the Treaty in its establishment and management of the national park.

The Crown undermined the UDNR Act, purchased individual land interests in breach of its promise to only buy land from the tribal collective, and acquired over half the Reserve “by means of unfair, predatory, and at times illegal purchases” (at [16.10]).

And the Tribunal stressed that the establishment of a national park in Te Urewera need not have breached the principles of the Treaty (at [16.10.1]):

“We see no necessary inconsistency between the establishment of a national park, in the national interest, and the active protection of Māori interests in their ancestral lands and waters. Both interests could have been provided for; both peoples could have been provided for. Maybe a forest park would have better protected the interests of all. But therewas, as the Crown pointed out, much Māori support for the idea of conserving the forest resource. First, if they had they been fully consulted; secondly, if the park had been modified in its design and operations by a full accounting of their needs; thirdly, if they had been included in the proposed management structure; and, fourthly, if their agreement had been obtained; there would have been no breach in establishing a national park. Whatever the Crown did with these lands, they were going to remain an ongoing source of grievance to the peoples of Te Urewera because of past Treaty breaches, unless meaningful redress was provided and development opportunities fostered. Much of the anger that is directed at the national park has its roots here, and, in our view, some of it has little to do with the national park itself.”

 

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