October 2014 Māori Law Review

Tūhoe-Crown settlement – Tūhoe Claims Settlement Act 2014; Te Urewera report of the Waitangi Tribunal

Dr Carwyn Jones describes the main elements of both the Tūhoe Claims Settlement Act 2014 and the preceding inquiry and report of the Waitangi Tribunal into claims located in the Te Urewera inquiry district.

Discussion

Te Urewera report of the Waitangi Tribunal

The Urewera Tribunal was appointed in early 2002 and held 11 hearings of claimant evidence between November 2003 and April 2005 concerning 40 separate claims. Closing submissions by claimant and Crown counsel were presented at Ruatoki in June 2005.

The pre-publication version of the Urewera report is now available in four parts (Te Urewera, Wai 894, 2009-2012).

Part I of the report, released in April 2009, set out 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. As Ngai Tūhoe were not signatories to the Treaty of Waitangi, they were not automatically bound by its terms, though, the Tribunal noted, the Crown’s obligations to Ngai Tūhoe are not affected (Te Urewera – Pre-publication: Part 1, at p 132):

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

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, an important part of the context of Ngai Tūhoe’s claims. That Act was the result of a negotiated agreement reached between the Crown and Māori leaders of the Urewera region and was designed to recognise real powers of self-government to be exercised by the peoples of Te Urewera. Consequently, the Urewera Tribunal’s Presiding Officer suggested that “the Act embodied an arrangement unique in our history” (Te Urewera – Pre-publication: Part 2, Letter of Transmittal).

Perhaps the most remarkable aspect of the Urewera District Native Reserve Act was its intention to give effect to tino rangatiratanga or mana motuhake. Both Crown and claimant counsel before the Tribunal agreed that this was a clear objective of the Act (see Te Urewera – Pre-publication: Part 2, p 362). Unfortunately, the Act’s promise of self-government for the peoples of Te Urewera was never realised. See the historical background provided by Dr Vincent O'Malley (2014) October Māori LR).

Part III of the Tribunal’s report is primarily concerned with issues relating to Te Urewera National Park and the background of events that led to the establishment of the park. (See (2012) November Māori LR for further detail). 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;
  • The Crown’s repeated broken promises;
  • Extensive land loss; and
  • The creation of a national park in Te Urewera which came to symbolise dispossession.

Part IV of the report was released on 20 December 2012 (see (2013) November Māori LR for further detail).  It is concerned firstly with Rua Kenana and the police invasion of Maungapōhatu. The report then looks at land development schemes after the 1927 Urewera Consolidation schemes and restrictions on native timber milling. Part IV also addresses claims arising from the 1972 amalgamation of remaining Tūhoe lands.

Tūhoe Claims Settlement Act 2014

The Deed of Settlement of the historical claims of Tūhoe was signed on 4 June 2013. The Tūhoe Claims Settlement Act 2014 gives effect to a number of important aspects of the settlement, although two prominent components of the settlement are not included in this Act. Matters relating to the status and governance of Te Urewera were divided from the settlement Bill and enacted separately as Te Urewera Act 2014. See the article by Dr Jacinta Ruru on Te Urewera ((2014) October Māori LR).  The innovative ‘Mana Motuhake redress’ that is aimed at transforming the Tūhoe-Crown relationship is to be given effect through non-statutory mechanisms, primarily the Service Management Plan. See the article by Māmari Stephens on the Service Management Plan ((2014) October Māori LR). For further detail on the settlement legislation see the article on settlement legislation before the House of Representatives in 2013 ((2013) December Māori LR).

The settlement provides for financial redress to the value of $170 million. This includes some value transferred under the 2008 Central North Island settlement. There are opportunities to purchase deferred selection properties and an exclusive right of first refusal over other Crown-owned properties.

The Act contains a series of acknowledgements of Crown actions that have breached the Treaty of Waitangi and its principles (s 9). The Crown apology addresses, in particular, indiscriminate raupatu, wrongful killings, and years of scorched earth warfare, denying Tūhoe the right of a self-governing Urewera Reserve by subverting the Urewera District Native Reserve Act 1896, for excluding Tūhoe from the establishment of Te Urewera National Park over their homelands, and for wrongly treating Lake Waikaremoana as Crown property for many years (s 10).

The Act provides for the transfer to Tūhoe of five cultural redress sites: Onīnī, Waikokopu, Te Tii (as a local purpose reserve), and Ngā Tī Whakaaweawe and Kōhanga Tāheke (the latter two sites are within the Central North Island Forests Land) (ss 23-26).

The Act also provides for a protocol with the Ministry of Primary Industries, a taonga tūturu protocol, for the Tūhoe trustees to be appointed as a fisheries advisory committee (ss 43-45), and for a Tūhoe member to be appointed to the Rangitāiki River Forum (established as part of the Ngāti Manawa and Ngāti Whare settlements) (s 50). The Act gives effect to the agreement recorded in the Deed of Settlement that there will be six official geographic name changes in accordance with determinations made by the New Zealand Geographic Board.