Chief Judge’s powers – no error of law or jurisdiction in order creating roadway over Māori reservation – The Trustees of the Tauwhao Te Ngare Trust v Shaw  Māori Appellate Court MB 394
Partial termination of whānau trust refused – Larkins v Hurae and Ngawaiata Whānau Trust - Waihou Hutoia D2A (2015) 94 Taitokerau MB 120
Appointment of trustees - following 14 years of interim trusteeship – Paora - Te Tii Waitangi A (Waitangi Marae) (2015) 94 Taitokerau MB 134
Appointment of trustees – appointment delayed in light of allegations of impropriety – Kīngi v Eru - Whakapoungakau 24 (2014)
Appointment of trustees – election in accordance with marae charter – Bigham v Budd - Waiokura Marae and Reserves Trust (2014) 331 Aotea MB 151
Ngā mihi o te tau hou ki a koutou katoa - happy New Year from the Māori Law Review team.]]>
Chief Judge's powers – orders vesting urupā cancelled – Te Rūnanga o Ngāti Awa v Paul - Otara o Muturangi  Chief Judge's MB 615
Status of land – no change to General land to facilitate sale - Skudder - Tahorakuri A No 1 Sec 8B and Lot 1 DP South Auckland 63822 (2014) 109 Waiariki MB 203
Licence to occupy - objective approach to dealings - Pohatu v Muriwhenua Incorporation - Te Hapua 42 (2014) 91 Taitokerau MB 251
Partition - hybrid partition for all owners - Heta - Taiharuru 4C3B (2014) 88 Taitokerau MB 136
Partition - insufficient support and unnecessary - MacDonald v MacDonald - Wairau Blk.XII Sec. 6C 2C (2014) 27 Te Waipounamu MB 68
Partition, ownership - conditional partition upheld - Morrison - Te Kaha No.2C Block (2014) 105 Waiariki MB 183
Crown review of Māori Community Development Act and Māori Wardens breaches Treaty principles - Whaia te Mana Motuhake / In Pursuit of Mana Motuhake: Report on the Māori Community Development Act Claim (Wai 2417, 2014)
Taonga waterways - Lake Waikaremoana - Te Urewera Part 5 (Wai 894. 2014)
Indigenous Peoples’ Good Governance, Human Rights and Self-Determination in the Second Decade of the New Millennium – A Māori Perspective by Dr Robert Joseph]]>
Waitangi Tribunal (Wai 2417, 2014)
5 December 2014 (pre-publication version)
The Waitangi Tribunal has released its report into the Crown’s review of the Māori Community Development Act 1962 and the role of Māori Wardens. The Tribunal has found that the review processes breached the principles of the Treaty of Waitangi.
Download Whaia te Mana Motuhake / In Pursuit of Mana Motuhake: Report on the Māori Community Development Act Claim (PDF, 3.18MB) here.
The following information is from the Ministry of Justice’s media release of 5 December 2014 about the Tribunal’s report into claims that the Crown’s review of the Māori Community Development Act 1962 and administration of a project about the role of Māori Wardens was conducted in breach of the principles of the Treaty of Waitangi. The Tribunal upheld the claim.
In its report released today, the Waitangi Tribunal has upheld the New Zealand Māori Council’s claim that the Crown’s review of the Māori Community Development Act 1962, and its administration of the Māori Warden’s Project, has breached the principles of the Treaty of Waitangi. The Tribunal’s report is the first to give an extensive opinion on how the United Nations Declaration on the Rights of Indigenous Peoples can inform Treaty principles. The Tribunal held hearings into the claim in March this year.
The Tribunal concludes that in the early 1960s there was an historic agreement reached between the Crown and Māori to give statutory recognition and powers to Māori institutions of self-government including District Māori Councils and the New Zealand Māori Council.
This collaborative agreement was enshrined in the Māori Community Development Act 1962. In reaching this conclusion, the Tribunal was informed by its review of the long history of the Māori pursuit of mana motuhake or autonomy and self-government since 1840. It was also informed by the manner in which negotiations unfolded between the Crown and Māori leaders over the period 1959-1963, when both sides agreed to promote the legislation.
It also noted that, the 1962 Act is the only statute in New Zealand that recognises that Māori have a general right to self-government. Thus the Tribunal’s primary recommendation is that nothing should detract from this statutory recognition of that right.
Turning to Māori wardens, the Tribunal noted that Wātene Māori have existed since the nineteenth century. Today they are unpaid volunteer workers who have a broad range of community roles: tackling truancy, neighbourhood patrols, assistance at tangi and major events, and advocacy for Māori dealing with government agencies and the courts.
Their powers and their administration are provided for under the 1962 Act.
The Tribunal finds that the Māori Wardens Project has undermined the 1962 Crown-Māori agreement and the position of the New Zealand Māori Council and its District Māori Councils in breach of the principles of the Treaty of Waitangi.
The Tribunal notes that both the claimants and the Crown now agree that Māori should control their own institutions, including the Wardens, and lead any reform of them, not the Crown. The Tribunal recommends interim measures to ensure Māori oversight of the Māori Warden’s Project; and a review of the 1962 Act by the New Zealand Māori Council, which should take into account the views of Māori wardens and a broad range of Māori communities.]]>
The United Nations Permanent Forum on Indigenous Issues, Thirteenth Session on Good Governance and Human Rights, New York, 12-23 May 2014
Address by Dr Robert Joseph of Te Mata Hautū Taketake – the Māori and Indigenous Governance Centre, University of Waikato, New Zealand
This brief paper addresses the nexus between good governance, human rights and Indigenous peoples’ self-determination particularly from Articles 3-6 and 46 of the 2007 UN Declaration on the Rights of Indigenous Peoples. The paper is placed within a Māori good governance context with some broader discussion of the Pacific.
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) opens with general statements regarding the rights of Indigenous peoples recognised in international human rights law and then focuses on self-determination which Anaya noted is:
… a universal human rights precept concerned broadly with peoples, including indigenous peoples, and grounded in the idea that all are equally entitled to control their own destinies.
Indigenous peoples globally share in a common struggle for the recognition and realisation of their rights including this right to self-determination through self-government and the right to representation through their own governance institutions. Articles 3-6 and 46 of UNDRIP refer to Indigenous peoples having the right to internal self-determination without threatening the territorial integrity of the nation-state and subject to individual and collective international human rights and good governance principles.
The right of self-determination however, is a highly contested evolving concept and will mean different things to different people depending on numerous factors but with power sharing as a salient point. A central issue is the recognition of the human right to self-determination through self-government, which ought to be, as a minimum, the power and authority of Indigenous peoples to govern themselves according to universal good governance principles.
Still, there is some debate about whether Indigenous self-determination is an endpoint or a means to an end. The endpoint argument tends to be based on the proposition that Indigeneity confers privileges akin to sovereignty in law which embraces a higher order principle that endorses the right of Indigenous peoples to be self-directing and self-managing, regardless of other considerations. The means-to-an-end argument on the other hand recognises Indigenous self-determination as a way of achieving desired outcomes. Whatever the opinion, my view is that self-determination is more about achieving results in law and in fact that are relevant and beneficial in modern times. Articles 3-6 and 46 of UNDRIP provide a basis for proclaiming self-determination as a right and also for justifying self-determination as a vehicle for ongoing Indigenous development into the 21st century.
In Aotearoa New Zealand, current Treaty of Waitangi settlements and the growing evidence that culture is an important determinant of economic and social advancement tends to favour the means-to-an-end interpretations of self-determination. Demographic changes and the consequences of Māori urbanisation have moreover, introduced new dimensions to the implementation and actualisation of self-determination. More on this later.
Governance and good governance are terms which, from about the intellectual debates of the 1980s and 1990s, have progressed from obscurity to widespread usage with the terms becoming widespread in development circles and prominent in the international and local public policy lexicon. Not surprisingly, there are differences of view as to what governance and good governance mean. The need for governance however, exists any time a group of people come together to accomplish an objective. Hence, every form of social organisation may be said to exhibit attributes of governance from family trusts to national and even global groupings such as the United Nations.
Indeed, governance is as old as humanity and is reflective of multiple societies and cultures across the world. Its ontological roots can be traced to the original Latin terms, ‘gubernare’ or ‘gubernator’: each an apt allusion for some Indigenous people to the navigation of a ship or captain. The World Bank noted that governance methods include ‘structures, processes, norms, traditions and institutions and their application by group members and other interested parties.’ Governance has also been defined as the process through which institutions, businesses and citizens articulate their interests, exercise their rights and obligations and mediate their differences. Fundamentally, governance is about power, relationships and accountability – who has influence, who decides, and how decision-makers are held accountable which applies to nation-state Governments and Indigenous peoples’ institutions.
For Indigenous peoples and nation-states, good governance must be achieved at the international, national, regional and local levels for actualising self-determination. Kaufmann, Kraay, and Mastruzzi assert that ‘good governance requires enabling conditions: the existence of standards, information on performance, incentives for good performance, and accountability.’ Specific universal good governance elements or principles rightly espoused by Dr Dalee Dorough include transparency; responsiveness; consensus; equity and inclusiveness; effectiveness and efficiency; accountability; participation; consultation and consent; human rights; and the rule of law.
Dr Dorough added that ‘whether considered as part of the rule of law or in their own right, respect and protection for human rights are key principles essential for good governance and must be consistent with the UNDRIP which affirms the distinct status and human rights of Indigenous peoples.’ The international community has reaffirmed that ‘human rights, the rule of law and democracy are interlinked and are mutually reinforcing and they belong to the universal and indivisible core values and principles of the United Nations.’
Universal good governance principles apply to governments as well as to corporate and other institutions including Indigenous peoples’ governments and governance institutions. Universally recognized principles for good governance must be applied and realized by Indigenous peoples and nation-states although such principles may be applied in different ways depending on specific circumstances. The literature internationally concludes that there is no single world-wide ‘one size fits all’ model for best practice good governance due to differences in legal systems, institutional frameworks and cultural traditions.
Some good governance principles may conflict with each other in practice as well. For example, the emphasis given to different aspects of governance will vary in different settings because societies value process, form and outcomes differently. In more utilitarian Western cultures, great value is placed on efficiency. In some Indigenous and tribal societies, a desire for consensus may override efficiency. Some cultures give primacy to individual rights while others stress communal obligations. Some societies may see economic growth as their primary goal while others accord more importance to environmental sustainability, social justice and cultural diversity.
Good governance in France, Brazil, Mexico and Russia is not the same as it is in England, China, Senegal and the United States of America. Good governance in Tonga, Norway, Cambodia and the Cook Islands is not the same as it is in Aotearoa New Zealand, India, Uganda and Australia. These different values, laws, institutional frameworks and cultural traditions explain why good governance varies in different countries and even between communities within a country. Still, it is important that Indigenous traditions and values be recognised and accommodated but in a way that contributes to good governance rather than undermines it. For constructive discourse to take place, it is important that different governance traditions, institutions and values are acknowledged and understood but are applied in a good governance manner. It behoves nation-states and Indigenous peoples then to acknowledge, understand, adopt and perhaps even celebrate these good governance principles along with ‘other’ cultural governance traditions and to apply them within their formal governance institutions. For Indigenous peoples, good governance principles are equally important in their relationship with their respective nation-state, but also within Indigenous communities themselves. But good governance principles and human rights must be applied!
A crucial example of the need for equal application of the rule of law and for the protection of human rights is the right of Indigenous peoples to self-determination. This core right of all peoples is regarded as a pre-requisite to the exercise and enjoyment of all other human rights. Nation-states must therefore equally respect and recognise the right to self-determination of Indigenous peoples in order to protect and promote all of their individual and collective human rights fundamentally in their relationship with Indigenous peoples and with the good governance of Indigenous communities.
Māori in Aotearoa New Zealand provide an interesting international case study for actualising Indigenous self-determination, human rights and good governance. Māori are an influential group within 21st century Aotearoa New Zealand society. Te Reo Māori is an official language along with English and sign language. The Treaty of Waitangi and its implications for Māori and the nation have been acknowledged and negotiated since 1975. Māori political influence is approximately 20% in Parliament and the Māori Party is a coalition partner with the current National Government. Māori are involved in the highest levels of most national sports, business and public office. Māori television, news and radio are broadcast daily to the nation. Māori place names are well known throughout much of the country. Māori make up approximately 15% of the New Zealand population. The growing prominence of the Māori community nurtures understanding of cultural similarities and differences.
Interest in the good governance of Māori communities has commensurately grown considerably over the past three decades as significant Treaty of Waitangi settlements have been made between the Crown and various tribes under the Treaty of Waitangi and as Māori collectives take an increasing role in providing social service delivery on behalf of the Government to Māori communities. Since the 1980s, there has been an explosion of new Māori governance entities formed at the community, regional and national levels. Today there are literally thousands of separately incorporated Māori organisations throughout Aotearoa New Zealand.
The visibility and importance of Māori self-determination and good governance in law and fact in Aotearoa New Zealand are highlighted by a number of important factors. These include progress towards more Treaty of Waitangi settlements that are governed by post-settlement governance entities (PSGEs), requirements for greater engagement between Māori and local government under the Local Government Act 2002, proposals for mandated Iwi (tribal) organisations under the Māori Fisheries Act 2004, proposed allocations of marine farming space to Iwi under the Māori Commercial Aquaculture Claims Settlement Act 2004, the prospect for Māori group involvement in marine and coastal area administration under the Marine and Coastal Area (Takutai Moana) Act 2011, the thousands of not-for-profit Māori organisations who provide social services, and the current trend to enter into joint management agreements (JMAs) and co-management agreements over natural resources with local Māori under the Resource Management Act 1991 (RMA) and specific legislation such as the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.
What has augmented the visibility of the Māori community is the growing Māori economy which has emerged as a result of Māori corporate successes through transactional governance. The independent 2011 BERL report noted that the Māori economy contributes approximately $36.9 billion to the national economy or approximately 7% of GDP. The majority of Māori investment however, is in the primary sector – farming, forestry and fishing, which is volatile and beyond the control of Māori businesses just like these areas are for the wider New Zealand economy. External climate, commodity and currency shifts can either raise or fell the Māori economy. But increasingly, the Māori asset base is diversifying and expanding to include secondary and tertiary sectors such as energy generation, manufacturing, business services, health and education. Although these statistics are modest, the Māori economy is growing and Māori corporate entities are becoming more significant players within New Zealand society.
Notwithstanding the good governance and corporate successes of the Māori community in places, Māori continue to struggle with actualising internal self-determination and good governance in fact. This is particularly regarding at least 3 key areas as I see it:
Māori appear to be excelling in transactional governance – making money, but are struggling with reconciling traditional governance and the place of culture in the boardroom particularly given the different agendas for social, cultural and commercial development and the different philosophies that underpin tribal traditions and best commercial practice. Self-determination however, is the ultimate expression of cultural survival and without somehow incorporating traditional governance in the 21st century, assimilation is inevitable.
Moreover, transformational governance – making a positive difference in the lives and wellbeing of the Māori community the governance entity represents – for many Māori remains elusive. Māori still feature high in the negative statistics of the nation. Fifty percent of the prison population in New Zealand identify as Māori. Māori have a higher unemployment rate than non-Māori. Māori at educational, occupational and income levels have poorer health than non-Māori. One in every two Māori are likely to develop a mental disorder. Māori suicide rates are higher than non-Māori and Māori have a considerably lower life expectancy than non-Māori. Hence, the corporate successes need to be measured against an appropriate reconciling of traditional and transformational governance for self-determination to have any practical effect. A new approach to Māori governance then is required given that excellent Māori governance and leadership that incorporates at least traditional, transactional and transformation governance are pivotal to actualising Māori self-determination and wellbeing as a people in law and fact.
It is important to also emphasise here that traditional Māori governance laws and institutions, referred to as tikanga Māori, are not static and unchanging and need to be updated to reflect experience of the 21st century. All cultures adapt and evolve in time and with new technology. Tikanga Māori is capable of being updated for contemporary times. While the traditional Māori good governance principles and values are deeply embedded and enduring, they are always interpreted, differentially weighted and applied in practice in relation to particular contexts, giving ample scope for choice, flexibility and innovation. If anything can be identified as originating in and handed down from the pre-European Māori ancestors unchanged, it is not any particular social form, such as iwi (tribes) and hapū (sub-tribes), or particular practices, such as kaitiakitanga (stewardship) but the principle of creative adaptation itself. Indeed, the 2006 Waka Umanga Report noted that:
The culture of the people is not limited to historic conceptions. A credible [governance] structure is one that conforms to the peoples’ current understanding of themselves as a tribe or general Māori community, of where they have been as a people, of who they are now and where they seek to be.
A dynamic society will evolve as it encounters other societies and other knowledge systems and there will also be ongoing maintenance of the customary traditional values and their relevance. Da Cunha’s observations are germane in this respect:
Culture is production and not a product, we must be attentive in order to not be deceived; what we must guarantee for the future generations is not the preservation of cultural products, but the preservation of the capacity for cultural production. 
Professor Mason Durie added:
Governance at local or national levels requires a level of organisation which incorporates both customary Māori practices and the application of democratic principles. The two are not incompatible, nor should their juxtaposition be discounted. Māori can be strengthened by the past and can learn from it. But the challenges of tomorrow will require a canopy of skills and wisdoms many of which will come from other cultures and nations.
However, what is critical throughout with cultural adaptation, good governance, human rights, the rule of law and updating traditional governance practices for Māori and other Indigenous people is that Māori and other Indigenous people should be controlling the process of cultural change and governance adaptation rather than being controlled by government policy, legislation and other external factors. As in the past, Māori and other Indigenous People have survived dramatic changes of colonisation, urbanisation and now globalisation, individually and collectively, by deploying their capacity for adaptation; on the one hand modifying traditional forms to serve new functions and on the other creatively adapting introduced forms to their own ends, transforming both in the process. The ability to adjust while maintaining the group’s cultural uniqueness, values and customary norms is crucial for appropriately acknowledging and reconciling traditional Māori and Indigenous peoples’ governance both with transactional and transformational governance and for actualising Indigenous self-determination in the 21st century.
Moreover, key current internal challenges for Māori self-determination through good governance that require 21st century updating aligning with human rights and the rule of law as I see them include, among other things, the role of women, Elders, youth, children, urban Māori and non-leadership tribal and community members as well as appropriate dispute resolution fora.
In contrast to Māori, in the mainland United States of America, Indigenous peoples on reservations have stronger opportunities for actualising self-determination and good governance in law and fact through their residual sovereignty and domestic dependant nation status. Māori governance appears to be more akin to Indigenous corporate governance in Alaska via the Alaska Native Claims Settlement Act 1971 which corporatised the Alaska tribes.
The Indigenous peoples of Canada have a lesser degree of self-determination in law and fact than the USA but still much more than Māori through the Federal comprehensive claims and self-government agreements such as the James Bay Cree and Inuit Northern Quebec Agreement 1975, the Inuvialuit Settlement 1984, the Nunavut Settlement 1993, the Nisga’a Settlement 1999 and the Tswawassen Settlement 2009. Band government under the Indian Act in Canada is another form of self-determination in law but it appears to be more limited and has some parallels to Māori governance under the paternalistic Māori Land Court regime in New Zealand.
Self-determination of the Aboriginal and Torres Strait Islanders in Australia appears to be in some ways similar to Māori in terms of the political influence of some Aboriginal land Councils and Indigenous Land Use Agreements (ILUAs) resulting from the 1992 Mabo decision and the subsequent Native Title Act 1993 (Cth). ILUAs allow for traditional owners to assert aboriginal property rights over traditional territory and to enter into agreements with development companies although such rights are neither full self-determination in law nor in fact. The Marine and Coastal Area (Takutai Moana) Act 2011 certainly allows for ILUA type agreements for Māori groups but the waters are yet to be fully tested in this area.
In French Polynesia, although former French colonies, there is a renaissance of Tahitian and East Polynesian culture, language and identity which is allowing for a degree of internal self-determination in fact. In contrast, the nation-state of Fiji has full self-determination in law but the Indigenous Fijian and Rotuma peoples may have full self-determination in fact but appear to be struggling with transformational governance. Papua New Guinea is a sovereign nation-state in law but the Indigenous peoples are so diverse and complex that not all of them effectively practice self-determination in fact in terms of transactional and transformational governance. In contrast, in Tonga, Samoa, Tuvalu, Kiribati and other Island states, the Indigenous peoples have self-determination in law and fact but many often struggle with economic and social development although the culture and political influence are strong in places.
In contrast again, in Asia, the Ainu in Japan; the H’mong, Lahu, Yao and others in Thailand; the Orang Asli in Malaysia, the Puyuma, Ami, Yami, Rukai and other peoples in Taiwan; and the Igorot, Bukidnon, Ifugaos, Kalinga, Nigritos and other Indigenous peoples in the Philippines are struggling for the recognition and actualisation of self-determination in both law and fact.
But whatever the degree of self-determination throughout the Pacific and elsewhere, the implementation of universal good governance principles in an Indigenous peoples’ culturally specific context is critical to actualising individual and collective self-determination in fact.
In Aotearoa New Zealand, Māori may not have actual self-determination, self-government and autonomy in law, but they do have considerable political, economic and cultural influence in fact. There are guaranteed political seats in Parliament and some local government councils. Māori occupy key social service delivery roles. There is a central education system outside the mainstream from pre-school to tertiary levels. The Māori language has been revived as a living language and is a recognised official, economic and growing civic language. Māori culture is visible strongly in the public and private sectors of the country. There is a growing Māori economy. Māori do not have an ability to control the local legal framework in Aotearoa New Zealand like Indigenous peoples can in North America, but they do have strong political, educational, social, cultural and economic influence or a degree of self-determination in fact.
Self-determination through good governance, respect for human rights and the rule of law, then, are means to an end for Māori as a way for achieving desired outcomes and results that are relevant and beneficial to Māori in the 21st century. Māori still have their challenges and struggles but at least some of these are known. The question is what to do about them which is another aspect of self-determination and good governance – appropriate dispute resolution.
The right of all peoples to self-determination is fundamental to international law. It is often invoked by Indigenous peoples in the Pacific and elsewhere in their calls for greater recognition by nation-states to govern themselves. Whether considered as part of the rule of law or in their own right, respect and protection for human rights are key principles essential for good governance and must be consistent with the UNDRIP which affirms the distinct status and human rights of Indigenous peoples. Articles 3-6 and 46 of UNDRIP provide a basis for proclaiming self-determination as a right and also for justifying self-determination as a vehicle for ongoing Indigenous development into the 21st century without disrupting the territorial integrity of the nation-state and through the appropriate application of universal good governance and human rights principles.
The actualisation of Indigenous self-determination in law and fact throughout the Pacific however, varies considerably from country to country. Not surprisingly, the application of good governance and human rights principles for self-determination also varies considerably from country to country. But whatever the degree of self-determination throughout the Pacific and elsewhere, universal good governance and human rights principles in an Indigenous peoples’ culturally specific context must still be applied!
Māori are seeking greater legal and political recognition in Aotearoa New Zealand to govern themselves and to have the opportunity in law and fact to implement good governance principles within their communities through legal corporate and political governance entities. Other Indigenous peoples appear to share similar aspirations. But Māori (and other Indigenous peoples I suspect) are struggling with actualising internal self-determination and good governance particularly regarding, the legal recognition of their right in law to self-determination, as well as the implementation of this right in fact. This is especially so regarding the reconciliation of traditional, transactional and transformational governance. Moreover, Māori and other Indigenous peoples’ governance and self-determination both can and needs to adapt to 21st century demands including by applying good governance principles, human rights and the rule of law with, among other things, the role of women, Elders, youth, children, urban Māori and other urban Indigenous peoples, non-leadership members and by adopting appropriate dispute resolution fora and processes.
If contemporary Māori and other Indigenous peoples’ governance entities can adapt for example by reconciling traditional, transactional and transformational governance simultaneously and positively in a 21st century context then although they may not have actual self-determination in law, they have it in fact which is a degree of self-determination that is about making a significant difference in the lives and well-being of the people. Such adaptation can be accomplished, all things being equal, through such things as the appropriate application of good governance principles, human rights and the rule of law. As highlighted earlier however, transformational governance is not occurring among enough Māori (and I suspect other Indigenous peoples) as reflected in the current negative social statistics of the nation. This leads to my final point. Increasingly, the success of self-determination for Māori and other Indigenous peoples in law and fact in the second decade of the new millennium will be measured by the way it impacts on the lives, resources and aspirations of Indigenous individuals, Indigenous kin groups, Indigenous political collectives and importantly, future generations. Indeed, Indigenous peoples’ self-determination through the application of good governance and human rights principles is both a right and a responsibility.
Tēnā koutou katoa.
 Tainui, Tuwharetoa, Kahungunu, Ngāi Tahu, Senior Law Lecturer, Te Piringa-Faculty of Law, and director of Te Mata Hautū Taketake – the Māori and Indigenous Governance Centre at the University of Waikato in Aotearoa New Zealand email@example.com. These notes are more extensive than the actual presentation by Dr Joseph at the Permanent Forum on Indigenous Issues 13th Session in New York in May 2014.
 Anaya, J, Indigenous Peoples in International Law (2nd Ed, Oxford University Press, Oxford, 2004) at 98.
 John Farrar, Corporate Governance: Theories, Principles and Practice, (Melbourne, Oxford University Press, 3rd Edition, 2008) at 3.
 World Bank, Governance and Development (1992) 1.
 L Frechette, Deputy Secretary-General of the UN, Speech to the World Conference on Governance (31 May 1999).
 Kaufmann, Kraay, and Mastruzzi in Maureen Lewis & Gunilla Peterson, Governance in Education: Raising Performance, (World Bank, 2009) at 3-4.
 Dr Dalee Dorough, ‘Concept Paper on the 2014 Theme Regarding Good Governance’ (UN Permanent Forum on Indigenous Issues, 13th Session, New York, 12-23 May 2014).
 Idem. See also Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, GA Res. 67/1, 24 September 2012 (adopted without vote), para. 6: "We reaffirm the solemn commitment of our States to fulfil their obligations to promote universal respect for, and the observance and protection of, all human rights and fundamental freedoms for all. The universal nature of these rights and freedoms is beyond question. We emphasize the responsibilities of all States, in conformity with the Charter of the United Nations, to respect human rights and fundamental freedoms for all, without distinction of any kind."
 Jacques Bourgault for example, suggests the basic aspects of good governance comprise: (1) perception of the legitimacy of power of the public authority; (2) citizens at the centre of decision-makers’ concerns; (3) a ‘society-centred programme’ based on listening to citizens; and (4) rapid adaptability of public administration to citizens’ needs in dispensing public funds. See J Corkery (ed), Governance: Concepts and Applications (IIAS Working Group, International Institute for Administrative Studies, Brussels, 1999) 173.
 Human Rights Council, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, UN Doc. A/HRC/12/34 (15 July 2009), para. 41: "The right of self-determination is a foundational right, without which indigenous peoples’ human rights, both collective and individual, cannot be fully enjoyed." See also Human Rights Committee, General Comment No. 12, Article 1, 21st sess., A/39/40 (1984), para. 1: "The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights."
 In Aotearoa New Zealand in 2013, around 1 in 7 New Zealanders were Māori. There were 598,605 people of Māori ethnicity and 668,724 people of Māori descent living in New Zealand in 2013. http://www.stats.govt.nz/Census/2013-census/profile-and-summary-reports/quickstats-about-Māori-english/population.aspx. (Accessed December 2013).
 See Joseph, R, “Contemporary Māori governance: New era or new error?”, New Zealand Universities Law Review, (Vol. 22, 2007) at 682 – 709 and Joseph, R., ‘Contemporary Māori Governance: New Error’ in Farrar, J and Watson, S, (eds) Contemporary Issues in Corporate Governance (The Centre for Commercial & Corporate Law Inc, University of Canterbury, Christchurch, 2011) at 327 – 368.
 In 2009, there were at least 70 or more iwi (tribal) organisations that were mandated to manage the proceeds of the nearly $1 billion from the fisheries settlement; 30 or more iwi and hapū organisations were mandated to manage the $1 billion proceeds of comprehensive Treaty of Waitangi settlements; 8,500 representative management entities – Māori Incorporations and Ahu Whenua Trusts - under the Te Ture Whenua Māori Act 1993; 44 or more Māori health providers, and at least 500 Marae (Māori meeting complex areas).
 Over 35 post-settlement governance entities have been established to date to manage settlement assets and govern Māori settlement communities. In 2014, 67 Deeds of Settlement have been signed by Māori and the New Zealand Crown and it is anticipated approximately 60 more will be signed.
 Māori Fisheries Act 2004, ss 13, 14, 21, 27, 28, 40 and 130.
 Māori Commercial Aquaculture Claims Settlement Act 2004, ss 32, 33 and 45.
 There are currently over 13 Takutai Moana applications being processed throughout the country but the Government is still developing its policy on this area.
 Such as Māori Health Authorities (MHAs) and private and charitable trusts. In 2009 there were approximately 44 MHAs.
 Resource Management Act 1991, ss. 33, 34, 35.
 Nana, G, Stokes, F & Molano, W, The Asset Base, Income Expenditure and GDP of the 2010 Māori Economy (BERL Report, Te Puni Kokiri, Wellington, 2011).
 The challenges of incorporating traditional Māori governance in the boardroom occurred early for Waikato-Tainui which resulted in debilitating litigation. See Porima v Te Kauhanganui o Waikato Inc Soc  1 NZLR 472; Mahuta v Porima (Unreported Judgment, 9/11/00, Hammond J, HC Hamilton M290/00); Porima v Waikato Raupatu Trustee Company Ltd (Unreported Judgment, 20/2/01, Robertson J, HC Hamilton M330/00); and Mahuta v Porima (Unreported Judgment, 22/9/00, Hammond J, HC Hamilton M238/00).
 Refer to the Ministry of Social Development for updated statistics. http://www.msd.govt.nz/.
 New Zealand Law Commission, Waka Umanga: A Proposed Law for Māori Governance Entities (New Zealand Law Commission, Wellington, 2006) at 69.
 Da Cunha, M C, “The Case of Brazilian Indians” in S Stephens (ed), Children and the Politics of Culture (Princeton University Press, 1995) at 282-291.
 M Durie, Te Mana Te Kawanatanga: The Politics of Māori Self-Determination (Oxford University Press, Auckland, 1998) at 238.
 Mabo and Another v The State of Queensland and Another  HCA 69; (1989) 166 CLR 186; and Mabo and Others v Queensland (No. 2)  HCA 23; (1992) 175 CLR 1.]]>
Chief Judge's powers – application of "ten pound rule" not erroneous – Scott - Erueti Te Karu  Chief Judge's MB 260
Trusts – partial termination, constitution of ahu whenua trust, appointment of trustees – The Māori Trustee v O'Rorke - Pukekohatu 7B (2014) 329 Aotea MB 79
Trusts - review of trust and meetings - owners followed correct procedure - Morris - Ngapini and Tarawa Trust (2014) 36 Takitimu MB 186
Title and occupation – recovery of possession, permanent injunction and compensation - Trustees of Ihaka Whaanga Whānau Trust v Whaanga - Town Section 90 Mahia and Town Section 91 Mahia (2014) 42 Tairāwhiti MB 292
Occupation orders - orders for housing purposes only - Davis - Ahipara A8B (2014) 88 Taitokerau MB 186
Treaty of Waitangi signatories did not cede sovereignty in February 1840 - He Whakaputanga me te Tiriti: the Declaration and the Treaty (2014, Wai 1040)
He Whakaputanga me te Tiriti: the Declaration and the Treaty - sovereignty in February 1840 - comment by Professor D V Williams
Exploring Māori legal traditions: Te hōpara i ngā tikanga ture Māori - Māori Law Review co-editor Dr Carwyn Jones has been awarded a Marsden Fund Fast-Start Grant. He will focus on identifying Māori legal principles from a range of cultural expressions such as waiata (songs), whakairo (carvings), karakia (prayers/chants), and kōrero pūrākau (stories)
Prestigious Canada Research Chair - Māori Law Review consultant editor Professor John Borrows has been named Canada Research Chair in Indigenous Law
All Souls College Examination Fellowship - Māori Law Review contributor Max Harris has been elected an Examination Fellow at All Souls College, Oxford
Sir Edward Taihakurei Durie student essay competition 2014 - Anna Brenstrum, an undergraduate law student at Otago University, has won the 2014 competition
Student editor 2015 - Toni Love is our next student editor
Research on Te Ture Whenua Māori Act 1993 - Nathalie Harrington (Summer Research Scholar) and Stevie-Rae Hart (Research Assistant) will be working with us on a project over Summer looking at the jurisprudence of the Māori Land Court under Te Ture Whenua Māori Act 1993]]>
Waitangi Tribunal (2014, Wai 1040)
The Waitangi Tribunal has released its report He Whakaputanga me te Tiriti: the Declaration and the Treaty about the meaning of the Treaty of Waitangi in February 1840 when it was first signed. The Tribunal's report has been made as the first stage of its inquiry into claims made in its Te Paparahi o te Raki (the great land of the north) district inquiry.
Download He Whakaputanga me te Tiriti: the Declaration and the Treaty here.
The following information is from the Ministry of Justice's media release of 14 November 2014 about the Tribunal's report. The report is on the meaning and effect of the Treaty of Waitangi when it was first signed in February 1840.
The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede sovereignty to the British Crown, the Waitangi Tribunal has concluded.
The report concerns the ‘meaning and effect’ of the treaty in February 1840, when the first signings of te Tiriti took place in the Bay of Islands and the Hokianga.
Stage two of the inquiry, which is under way, will consider events after February 1840.
‘Though Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Māori and Pākehā, it did not explain this to the rangatira,’ the Tribunal said.
Rather, Britain’s representative William Hobson and his agents explained the treaty as granting Britain ‘the power to control British subjects and thereby to protect Māori’, while rangatira were told that they would retain their ‘tino rangatiratanga’, their independence and full chiefly authority .
‘The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain,’ the Tribunal concluded. ‘That is, they did not cede authority to make and enforce law over their people or their territories.’
The rangatira did, however, agree ‘to share power and authority with Britain’.
‘They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests,’ the Tribunal said.
‘The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.’
The Tribunal said that, having considered all of the evidence available to it, the conclusion that Māori did not cede sovereignty in February 1840 was inescapable.
The Tribunal said nothing about how and when the Crown acquired the sovereignty that it exercises today. However, it said, the Crown ‘did not acquire that sovereignty through an informed cession by the rangatira who signed te Tiriti at Waitangi, Waimate, and Mangungu’.
The question of whether the agreement that was reached in February 1840 was honoured in subsequent interactions between the Crown and Māori will be considered during stage two of the inquiry.
The Te Paparahi o te Raki inquiry district covers all territories north of Auckland that have not previously been the subject of Waitangi Tribunal historical reports.
The Tribunal has previously completed inquiries into the Muriwhenua (far north), and the Kaipara and Te Roroa districts on the east coast.
The inquiry district therefore covers the remaining Northland territories, including the Hokianga, the Bay of Islands, Whangaroa, Whāngārei, Mahurangi, and the Gulf Islands.
No. This stage one report is particularly focused on the Bay of Islands and Hokianga. These are the districts where te Tiriti was signed in February 1840. (Specifically, the signings took place at Waitangi on 6 February, Waimate on 10 February, and Mangungu in the Hokianga on 12 February.)
Some 43-46 rangatira signed at Waitangi; six signed at Waimate; and 64 signed at Mangungu. Hobson, as Britain’s representative, signed on each occasion.
Almost all of the rangatira who signed on these occasions were from the Bay of Islands and Hokianga areas.
The claimants are descendants of Māori who lived in the inquiry district in February 1840. Most of the claimants identify as Ngāpuhi.
The Crown and the claimants agreed to a two-stage inquiry.
Stage one is about the ‘meaning and effect’ of the treaty, including the question of whether sovereignty was ceded. It also covers the meaning and effect of the 1835 declaration He Whakaputanga o te Rangatiratanga o Nu Tireni, the Declaration of Independence of New Zealand.
Stage two is considering claims that, since February 1840, the Crown has acted inconsistently with the principles of the treaty. Hearings for stage two of the inquiry have been under way since 2013.
The treaty was drafted in English, then translated into Māori. On 5 February, the Māori text was read to rangatira, and Hobson and his agents also explained the proposed agreement verbally. The rangatira then made speeches in which they sought further explanations and assurances – including assurances that, if they signed, the Governor would be their equal, rather than being above them.
Though Britain intended to acquire sovereignty, Hobson and his agents did not explain this clearly. Rather, their emphasis was on the Governor acquiring sufficient authority to control British subjects and so to protect Māori interests. As the party drafting and explaining the treaty, it was up to Britain to make its intentions absolutely clear.
The treaty agreement can only be found in what signatory rangatira (or at least the great majority of them) were prepared to assent to, based on the proposals that Hobson and his agents made to them, and the assurances the rangatira sought and received. The agreement cannot be found in what Britain intended but did not clearly explain.
Based on what was explained to them, the rangatira assented to Hobson having authority over Pākehā, while they would retain their traditional authority over their people and territories. Their expectation was that they and Hobson would be equals with different spheres of influence. The rangatira would have understood that, where the Māori and Pākehā populations intermingled, questions of relative authority would remain to be negotiated on a case-by-case basis.
Yes. The Tribunal concluded that the rangatira who signed in February 1840 agreed to enter land transactions with the Crown. They also appear to have agreed that the Crown would protect them from foreign threats and represent them in international affairs, where that was necessary.
The Crown in February 1840 promised to investigate land transactions that had taken place before the treaty, and to return any land that had not been properly acquired from Māori.
The Tribunal concluded that he Whakaputanga was an unambiguous declaration of Māori sovereignty and independence. The rangatira who signed it declared that rangatiratanga, kīngitanga, and mana in relation to their territories rested only with them on behalf of their hapū; and that no-one else but them could make law within their territories, nor exercise any function of government except under their authority. The rangatira also asked for British protection against threats to their authority.
The Tribunal’s report is about what the treaty meant to those who signed it in February 1840. In this stage one report, it does not draw conclusions about what the treaty means today. It may draw conclusions on that matter in its stage two report.
The essential conclusion of this report is that in February 1840 the rangatira who signed te Tiriti did not cede sovereignty. Rather, they consented to the Crown having power to control Pākehā, while recognising that in situations where the Māori and Pākehā populations intermingled questions of relative authority would have to be negotiated case by case.]]>
Waitangi Tribunal (Wai 1040, 2014)
Professor David V Williams looks at the Waitangi Tribunal's report about the meaning of the Treaty of Waitangi in February 1840 when it was first signed: He Whakaputanga me te Tiriti: the Declaration and the Treaty.
Download He Whakaputanga me te Tiriti: the Declaration and the Treaty here.
Te Paparahi o Te Raki inquiry district comprises all territories north of Auckland not yet the subject of a prior Waitangi Tribunal historical report (Te Roroa, Kaipara and Muriwhenua).
Hapū of Ngāpuhi predominate in this region and many dozens of Ngāpuhi claimants and groups or clusters of claimants, together with a number of other claimants, were represented in the first stage of the inquiry.
In a departure from previous practice, the Tribunal agreed to a stage 1 process comprising five weeks of hearings from 10 May 2010 to 24 February 2011 devoted exclusively to determining the meaning and effect of four documents:
This report is the Tribunal’s response to the exhaustive consideration of those texts in oral testimony, historical analysis and legal submissions put to it during the stage 1 hearings.
There was a wide range of evidence, and many somewhat conflicting threads within the evidence given and the submissions made, yet the Tribunal came to a number of clear and unambiguous findings. Its most significant conclusion was stated in these words (at 10.4.4):
Our essential conclusion, therefore, is that the rangatira did not cede their sovereignty in February 1840; that is, they did not cede their authority to make and enforce law over their people and within their territories. Rather, they agreed to share power and authority with the Governor. They and Hobson were to be equal, although of course they had different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis. But the rangatira did not surrender to the British the sole right to make and enforce law over Māori. It was up to the British, as the party drafting and explaining the treaty, to make absolutely clear that this was their intention. Hobson’s silence on this crucial matter means that the Crown’s own self-imposed condition of obtaining full and free Māori consent was not met.
This conclusion may seem radical. It is not. A number of New Zealand’s leading scholars who have studied the treaty – Māori and Pākehā – have been expressing similar views for a generation. In that sense, our report represents continuity rather than change. Moreover, the conclusion that Māori did not cede sovereignty in February 1840 is nothing new to the claimants. Indeed, there is a long history of their tūpuna protesting about the Crown’s interpretation of the treaty. We will examine the history of that protest, and its significance for the treaty claims of northern Māori, in stage 2 of our inquiry.
And again (at 10.5):
Though Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Māori and Pākehā, it did not explain this to the rangatira. Rather, in the explanations of the texts and in the verbal assurances given by Hobson and his agents, it sought the power to control British subjects and thereby to protect Māori. That is the essence of what the rangatira agreed to.
Less publicised in news media reports of the Tribunal’s findings, but of crucial significance to most of the Ngāpuhi claimants, were the findings on he Whakaputanga (at 10.2):
In summary, then, he Whakaputanga was a declaration by rangatira in response to a perceived foreign threat to their authority, in which they:
- emphatically declared the reality that rangatiratanga, kīngitanga, and mana in relation to their territories rested only with them on behalf of their hapū;
- declared that no one else could come into their territories and make laws, and nor could anyone exercise any function of government unless appointed by them and acting under their authority;
- agreed to meet annually at Waitangi and make their own decisions about matters such as justice, peace, good order and trade involving Europeans and Māori-European relationships in their territories;
- acknowledged their friendship with Britain and the trading benefits it brought; and
- renewed their request for British protection against threats to their authority, in return for their protection of British people and interests in their territories.
To those rangatira who signed, none of this – including the agreement to meet annually – would have implied any loss of authority on the part of either themselves or their hapū, or any transfer of authority to a collective decision-making body. Rather, he Whakaputanga was an unambiguous declaration that hapū and rangatira authority continued in force – as, on the ground, it undoubtedly did – and that Britain had a role in making sure that state of affairs continued as Māori contact with foreigners increased.
This report differs considerably from the tenor and content of most of the Tribunal’s historical claims reports. It is ‘a contextual report, not a report into claims’ (at 1.4.1).
Since 1975, s 5(2) of the empowering statute requires of the Tribunal in exercising its functions that it ‘shall have regard to the 2 texts of the Treaty set out in Schedule 1 to this Act and, … shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by differences between them.’ Earlier Tribunal reports (discussed at 8.3.1) have touched upon such issues but this report is vastly more comprehensive in its approach. The result is a massive document comprising some 534 pages of text and detailed footnotes plus further pages of appendices. The Tribunal’s findings in response to lengthy legal submissions from claimants and the Crown of course feature in the report. However significant and somewhat original features are its thorough analysis of the published writings of academic historians, and also in the amount of emphasis given to the oral traditions testimony of Ngāpuhi claimants concerning he Whakaputanga and te Tiriti.
After the brief introduction of chapter 1, chapter 2 ‘Two Peoples, Two Worlds’ canvasses Te Ao Māori traditions of the claimants’ forebears and then aspects of the British World from Cook’s voyaging instructions to being British in the mid-eighteenth century. On the latter topic, emphasis is given to a definition of ‘sovereignty’ in the British constitution as understood by William Blackstone whose influential Commentaries were first published in 1765: ‘a supreme, irresistible, absolute [and] uncontrolled authority’ lodged in Parliament (at 2.3.4). Chapter 3, a narrative entitled ‘From Encounter to Alliance’, traverses the history of Ngāpuhi encounters with European voyagers then traders from 1769, early Ngāpuhi visits to New South Wales, Norfolk Island and England, and then the arrival of Busby as British Resident and the selection of a national flag in the early 1830s. Considerable emphasis is given to the oral and written history of the visit by Hongi to London and Cambridge in 1820 - including his lengthy meeting with King George IV. The next chapter concerns he Whakaputanga and the Declaration of 1835. It departs dramatically from the usual emphasis on the role of Busby and his disappointment that an annual congress for national law-making never eventuated. Rather, he Whakaputanga is situated within a narrative of hapū autonomy and a history of inter-hapū hui over many years both before and after 1835. As the report put it (at 4.7.1):
Busby may have brought the ideas to the table, and indeed drafted the original text. But it was ultimately not his declaration. The English text can therefore provide evidence about the meaning of he Whakaputanga but, where the two texts diverge, the Māori text must be seen as authoritative. In this respect, it is unfortunate that the English text has shaped New Zealanders’ understandings of he Whakaputanga for so long.
Chapter 5 entitled ‘Contested Ground’ provides an account of the social, economic and political context of Te Paparahi o Te Raki in the 1830s including population decline, rangatira as entrepreneurs, Māori engagement with missionaries and Christianity and the pursuit of literacy. Then the Tribunal turns its attention to ‘The British Move towards Annexation’. This begins with the unsuccessful efforts of what became the New Zealand Company to win government endorsement for organised British settlements and anti-settlement lobbying by the missionary societies. It then describes the evolution of Colonial Office policy that concluded with the appointment of and instructions to Hobson as Consul and Lieutenant-Governor of a dependency to be annexed to New South Wales after the intelligent consent of Māori had been obtained to this annexation.
‘The Negotiation and Signing of te Tiriti’ is an exhaustive account of the events at Waitangi, Waimate and Mangungu from 4 to 14 February 1840. The Tribunal is at pains to emphasise the difficulty of reconstructing those events when the record that survives is comprised largely of English language written documents from partisan observers of the kōrero that took place. The Tribunal also discusses the text of a failed attempt of Governor Gipps in Sydney on 12 February to obtain agreement of some southern Māori to a cession of sovereignty. The chapter concludes with a useful analysis (at 7.12) of the many back-translations of te Tiriti into English in 1840, later in the nineteenth century and in the twentieth century.
In chapter 8 the Tribunal provides an excellent summary of ‘Past Perspectives on te Tiriti and the Treaty’. This covers the engagement of scholars with the meaning and effect of the treaty texts and the findings of courts and previous Tribunal reports. It notes the significant influence of Ruth Ross’s article ‘Te Tiriti o Waitangi: Texts and Translations’ which challenged the mid-twentieth century perspectives of most historians and was eventually published in 1972:
[This one particular article] stands as probably the single most important interpretive advance on the subject in modern times. Ross argued that, far from the solemn and far-reaching blueprint for the nation’s development it was often portrayed to have been, the treaty transaction was characterised by confusion and undue haste. She made the important observation that sovereignty was translated by Henry Williams in a different way from his translation of ‘all sovereign power and authority’ in the declaration only a few years previously. She concluded that the Māori text was the true treaty and that what mattered was how it had been understood here, not what the Colonial Office had made of the English text(s) in London. Her rigorous empirical examination of the original documents exposed the unquestioning acceptance of myths about the treaty by an earlier generation of scholars. And she left her contemporaries with the uncomfortable realisation that a reliance on what was said in the English text alone was no longer intellectually honest.
As well as her influence on a range of other scholars in the decades to come, Ross’s article had perhaps an even more important impact. It was a catalyst for the inclusion of the Māori text in the schedule to the Treaty of Waitangi Act 1975, as well as the authority given to the Tribunal in section 5(2) of the Act … Indeed, the third Labour Government’s Caucus Committee on Māori Affairs referred to Ross’s article in its reports of 1973 and 1974 on implementing the Labour Party’s manifesto promise to legally recognise ‘the principles set out in the Treaty of Waitangi’.
Chapter 9 moves to claimant and Crown evidence and submissions made during Te Paparahi o Te Raki hearings. As indicated above, this chapter and chapter 10 (‘Conclusions’) include a rigorous inquiry into Māori understandings of te Tiriti and the oral debates as presented from an oral history perspective by a number of eminent Ngāpuhi elders. The Tribunal noted (at 9.4.2) Crown counsel submissions that ‘there was no reliable documented evidence to support’ some of this oral history. It concluded (at 9.5):
In this chapter, we have related the claimants’ evidence, which included some understandings of the meaning of te Tiriti and the circumstances of its signing not previously known outside tribal communities. We are grateful to the claimants for sharing their traditions with us. We were impressed by the retention of this kōrero tuku iho, and the commitment by the claimants to the take handed down to them by their tūpuna. We noted the variation of emphasis in the evidence from hapū to hapū, as one might expect, but were made well aware of the common understandings across all claimant groups. Principal among these was, of course, that Māori did not cede their sovereignty or their mana through te Tiriti in February 1840.
In its concluding chapter the Tribunal made it clear that in its view British intentions concerning a cession of sovereignty and a monopoly right of the Crown to purchase any land Māori wished to sell had not been explained by Hobson and the missionaries to Ngāpuhi who signed te Tiriti. The report states (at 10.4.2):
We think that few if any rangatira would have envisaged the Governor having authority to intervene in internal Māori affairs – though many would have realised that where the populations intermingled questions of relative authority would need to be negotiated on a case-by-case basis, as was typical for rangatira-to-rangatira relationships. It is significant that, while the British intended to acquire sovereignty, meaning the power to make and enforce laws over all, this was not what Hobson explicitly had sought. The debate was characterised by his emphasis on protection and a Māori concern that the Governor would not have authority over them. …
Our view is that, on the basis of what they were told, the signatories were led to believe that Hobson would be a rangatira for the Pākehā and they would retain authority within their own autonomous hapū.
The Tribunal’s essential conclusion quoted at the outset was met, as might be expected, with a flurry of indignant contributions to news media and blogs along the lines that New Zealand needs to move into the 21st century and stop always looking backwards (and being so backwards). Government ministers indicated that as of now there is no question that the Crown does indeed have sovereignty in New Zealand and that the Tribunal report does not change that fact.
Yet the report may not settle even the matters of history that it had attempted to cover concerning the meaning and effect of te Tiriti and the Treaty.
The problem with any Tribunal report is that it must respond to the issues as put before it. The Crown was most concerned to argue that ‘sovereignty’ of the Blackstonian variety had indeed been ceded to the Crown by Māori in 1840. Claimants were totally determined to argue that no such cession had taken place and that the Crown and its representatives deliberately failed to explain the full implications of a Blackstonian version of sovereignty being imposed on New Zealand and deliberately misled Māori in the text of te Tiriti.
But there are other historical possibilities and they were adverted to in the Tribunal hearings. At least two sets of legal submissions did offer the perspective that all the British sought was the ‘power merely to impose a jurisdiction on British subjects’. This would be entirely in keeping with the contemporary British acquisition of ‘quasi-sovereignty’ in places such as India and West Africa (Afeaki and Sharrock at 9.4.1) or might be a ‘dual or shared sovereignty’ (Tauwhare at 9.4.2).
Moreover the Blackstonian definition of parliamentary sovereignty offers us no explanation at all for the fact of divisible British sovereignty and plurality of laws found in numbers of British colonies in the decades immediately prior to 1840.
As it happens, in the very week the Tribunal report was released a PhD thesis was completed at the University of Auckland: A praiseworthy device for amusing and pacifying savages? What the framers meant by the English text of the Treaty of Waitangi. Ned Fletcher’s thesis comprises 1109 densely argued pages based on extensive archival research. His conclusions radically challenge the Ross orthodoxy followed by the Tribunal. The thesis abstract reads:
The thesis addresses the meaning of the English text of the Treaty of Waitangi to those who had a hand in framing it. By “English text” is meant the English draft from which the Treaty in Maori was translated. Despite all the scholarship concerned with the Treaty, the English text has been comparatively neglected. Its meaning has variously been treated as self-evident or irredeemably ambiguous, and therefore unrewarding as an object of study in itself. Most recent writing has taken the view that the Maori and English texts differ significantly. That has led to some focus on whether the differences were the result of deliberate mistranslation to make the Treaty acceptable to Maori.
This thesis is concerned with the anterior question of the meaning of the English text to its framers. It therefore begins by identifying the framers and reconstructing the English text, which has been treated by some historians as lost and unknowable. The meaning of the English text requires consideration of the text itself (itself a neglected topic) but also of the context in which it was drawn up. That context includes the backgrounds and motivations of the framers and the wider experience of Empire and the currents of thought of the time.
The thesis concludes that the English and Maori texts of the Treaty appear to reconcile. It takes the position that the principal framers, William Hobson, James Busby, and James Stephen, understood the Treaty in much the same way and that such understanding was one generally shared by contemporaries. That shared understanding was in part because the Treaty followed British imperial practice elsewhere, and in part because the Instructions given to Hobson in the name of the Secretary of State for the Colonies, but almost entirely the work of Stephen, were clear and were faithfully carried out in the English text. The principal conclusions of the thesis are that British intervention in New Zealand in 1840 was to establish government over British settlers, for the protection of Maori. British settlement was to be promoted only to the extent that Maori protection was not compromised. Maori tribal government and custom were to be maintained. British sovereignty was not seen as inconsistent with plurality in government and law. Maori were recognised as full owners of their lands, whether or not occupied by them, according to custom.
The Tribunal report is a truly comprehensive report of Ngāpuhi perceptions and perspectives concerning he Whakaputanga and te Tiriti. There is probably more to be written yet, however, as to the meaning and effect of te Tiriti and its relationship to the English language treaty drafts.]]>
Historical background to the Tūhoe-Crown Settlement by Dr Vincent O'Malley
Te Wharehou o Tūhoe: The house that ‘we’ built by Professor Rawinia Higgins
Address on Tūhoe-Crown Settlement Day by Hon Christopher Finlayson, Minister for Treaty of Waitangi Negotiations (link to New Zealand Government website)
Tūhoe-Crown settlement - Tūhoe Claims Settlement Act 2014; Te Urewera report of the Waitangi Tribunal by Dr Carwyn Jones
Te Urewera Act 2014 by Dr Jacinta Ruru
A transforming dawn? The Service Management Plan by Māmari Stephens
Rangatahi Courts of Aotearoa/New Zealand - Judge Taumaunu delivered the most recent of our 2014 lunchtime seminars on 24 September 2014 at the Faculty of Law, Victoria University of Wellington.
Sir Edward Taihakurei Durie student essay competition 2014 - Anna Brenstrum, an undergraduate law student at Otago University, has won the 2014 competition.
Student editor 2015 - are you our next student editor? Applications close on 24 October
Download the Māori Law Review October 2014 (559 KB PDF).]]>
Behind the Tūhoe-Crown settlement is a long and tragic history of interactions with the Crown. The demand for mana motuhake, self-determination or autonomy, was central to the Tūhoe claim. It was a demand that echoed those of previous generations of Tūhoe leaders. Although Tūhoe leaders did not sign the Treaty of Waitangi in 1840, the Crown nevertheless assumed sovereignty over their territory (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 1, Sec. 3.3).
Initially, though, things changed little on the ground. British sovereignty was little more than a legal fiction and the first government visitor to the Urewera district arrived 22 years after the Treaty was signed, in 1862. All that changed almost overnight. Repeated and brutal invasions of the Urewera district from the mid-1860s partly reflected its status as a place of sanctuary for Māori from elsewhere who were seeking to elude government forces (Judith Binney, Encircled Lands: Te Urewera, 1820-1921, p.68).
Kereopa Te Rau — convicted in 1871 for the murder of Opotiki missionary Carl Sylvius Völkner in March 1865 (and statutorily pardoned in 2014) — was one of those to be pursued. The Pai Marire faith he supported was officially condemned as a 'fanatical sect' in April 1865 and all 'loyal' subjects of the Crown encouraged to aid in its suppression. In September a government expeditionary force landed at Opotiki. Then, in December 1865, Crown forces launched an invasion via the Waikaremoana district, supposedly in pursuit of Pai Marire adherents fleeing the government attack on their former Turanga (Gisborne) stronghold at Waerenga-a-Hika. Entire settlements were laid waste and prisoners executed in cold blood (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 2, Sec 6.5).
But it was the presence in the district of Te Kooti Arikirangi Te Turuki and his followers that resulted in the most protracted and devastating period of conflict. Most of the whakarau, as they became known, had been seized by the Crown and deported to the Chatham Islands in 1866 after being captured during the East Coast Wars. Some Tūhoe taken prisoner at Waikaremoana and elsewhere were among their number. They were held without trial as 'political offenders', enduring harsh conditions and brutal treatment while the government made arrangements to confiscate their lands back at home (Waitangi Tribunal, Turanga Tangata, Turanga Whenua Report, Vol. 1, Sec. 5.2). In July 1868 Te Kooti and his followers escaped and made their way back to the mainland. Seeking to travel peaceably inland, Te Kooti instead found himself hounded by government forces. He retaliated in November of that year, killing more than 50 people (both Māori and Pākehā) at the settlement of Matawhero, near Gisborne, before being granted sanctuary in the Urewera district the following year (Waitangi Tribunal, Turanga Tangata, Turanga Whenua Report, Vol. 1, Sec. 5.5).
Tūhoe were to suffer terribly for giving shelter to Te Kooti. Scorched earth tactics directed against them saw their homes and crops deliberately destroyed by colonial forces and their cattle and livestock plundered (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 1, Sec. 5.5). Those not killed in the conflict would be starved into submission. Worn out by wave after wave of bloody invasion, in 1871 Tūhoe chiefs reached a crucial agreement with the government, promising to capture and hand over Te Kooti in return for a Crown undertaking to respect their internal autonomy. In this way, although Te Kooti managed to escape, making his way to the King Country in May 1872, Tūhoe's rohe potae or encircling boundary came into existence.
Local rangatira quickly established a new governing body for their district in the aftermath of the war. Te Whitu Tekau (the Seventy) declared its opposition to land sales, surveys, roads and other tools of colonisation that threatened to undermine Tūhoe independence. But Crown and private agents were already chipping away on the fringes, posing a serious challenge to Tūhoe land and autonomy. The confiscation of valuable lands in which the iwi claimed interests in the Bay of Plenty and further south at Waikaremoana was felt deeply, and the steady erosion of the rohe pōtae that the government had promised to protect in 1871 would have serious consequences for Tūhoe (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 1, Sec. 4.5; Part 2, Sec. 7.5)
It may have been important to Tūhoe, but as far as the Crown was concerned, Native Minister Donald McLean’s 1871 agreement with the tribe was no more than a temporary expedient at a time of war (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 2, Sec. 8.3). Opening up the district to the rule of English law and land sales became a prime objective, especially as rumours circulated as to the existence of gold and other valuable minerals in the area. Setting aside the ring boundary was to be attempted in a number of different ways, including land purchases on the Urewera perimeter conducted with rival tribes, or secretive advances paid to needy individuals in the aftermath of the war that would later have to be repaid in land. For both Crown and private land buyers, indebtedness became a key tool in prising open the district (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 2, Sec. 10.4). Forced surveys for which the tribes would nevertheless be required to cough up land in payment was one tactic used — while outright fraud was also employed in some circumstances, most notably with respect to lands at Waiohau that were subject to an illegal partition, resulting in the owners being evicted from their homes (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 2, Sec. 11.5).
By the early 1890s the boundary had become not just smaller but also literally an encircling one as all of the lands on the edge of the district had either been confiscated, purchased or at least been pushed through the Native Land Court as a preliminary to sale. Colonisation became largely a matter of legal procedure rather than military might. The process of survey and title adjudication in which formerly communal and customary titles were replaced by legal ones empowering individuals to sell their piece of the tribal patrimony was one that many Tūhoe leaders had fought tirelessly to exclude from their district. But the relentless nature of government efforts to unlock the region to European settlement left Tūhoe deeply vulnerable to rifts and infighting prompted by land disputes (Judith Binney, Encircled Lands: Te Urewera, 1820-1921, p.329).
A series of disputed surveys in the early 1890s that threatened to spill over into open warfare served as the catalyst for a new agreement with the Crown. The Native Land Court would not be imposed on Tūhoe's remaining lands provided they agreed to an alternative title investigation process. At the same time, the internal autonomy of Tūhoe and other Urewera iwi would be protected so long as the ultimate authority of the Crown was recognised. This 1896 agreement thus gave Tūhoe's de facto ‘home rule’ legal standing (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 2, Sec. 9.5). Given the frequently declared insistence of local politicians and leaders on a unitary form of government, in New Zealand terms this appeared to be a hugely significant concession and other iwi leaders expressed considerable interest in the model.
Yet the ominous if cynical warnings of Opposition MPs as the Urewera District Native Reserve Act passed through Parliament ultimately proved correct. Although Premier Richard Seddon spoke of finally honouring the quarter-century-old compact, his opponents predicted that the new measure was no more than ‘the thin end of the wedge’ that would finally open the district to colonisation. Tūhoe leaders may have thought they were getting legally sanctioned self-government, but they were really just opening themselves up to a new form of entrapment (Judith Binney, Encircled Lands: Te Urewera, 1820-1921, p.404).
The Urewera Commission that began investigating land ownership in the area in the late 1890s soon proved more similar to the Native Land Court than anyone might originally have envisaged or feared. Under the 1896 legislation, it was to consist of five Tūhoe and two Pakeha commissioners. But an amendment passed in 1900 without consultation with the iwi disqualified any members who were personally interested in a case from deciding ownership. Consequently, many title orders were made by the Pakeha members. A second Urewera Commission established to hear more than 200 appeals had no Tūhoe representation on it. Tūhoe leaders complained that the titles that were issued failed to reflect their custom (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 3, Sec. 13.4).
Repeated crop failures, famine and disease wreaked havoc on tiny communities, as many as one-fifth of the total population of around 1600 dying in one year alone (1898) (Judith Binney, Encircled Lands: Te Urewera, 1820-1921, p.629). It was in these desperate times that a great new Tūhoe prophet emerged. Rua Kenana claimed to be the successor that Te Kooti had much earlier prophesied. He set about building a thriving community at Maungapohatu. But Rua needed money to develop the area, and was willing to sell a limited amount of land to the government in order to get the capital he needed.
Crown officials expertly played Rua off against other tribal leaders, with the ultimate goal of overturning Tūhoe autonomy and opposition to land dealings. Tūhoe leaders had wanted the 1896 Act to include an outright ban on land sales. Instead, it reserved the right of purchasing solely to the Crown, with any purchases to be negotiated with the General Committee that was to be established under the legislation. Officials instead dragged their feet on convening the committee, while throughout manipulating tribal divisions engendered by the government’s own actions (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 3, Sec. 13.6)
A series of legislative amendments after 1896 incrementally undermined Urewera self-government. Then, in possibly the most cynical measure of all, in 1910 the government simply starting buying land interests directly from individuals, in direct contravention of its own laws (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 3, Sec. 13.7). With Rua no longer playing ball, in 1916 police raided his settlement at Maungapohatu on trumped up charges of sly-grogging, arresting the prophet and killing his son Toko (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 4, Sec. 17.3). The result was that, by 1921, Tūhoe autonomy was all but finished.
Legislation passed the following year repealed the 1896 Act, doing away with any last legal vestiges of self-government and providing the basis for a further round of wholesale land purchasing. The Urewera Lands Act of 1921-22 formally abolished the General Committee and authorised an Urewera Consolidation Scheme premised on ensuring that the scattered individual interests the Crown had acquired across many blocks was translated into outright ownership to around half the district. Another 40,000 acres was lost due to demands that Tūhoe contribute land for roading. The lands were taken but most of the roads were never built (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 3, Sec. 14.3).
Further lands were taken for survey costs, and Tūhoe were left with just 16% of the Urewera reserve (Tūhoe Claims Settlement Act 2014, s 8(9)). Much of this was unsuitable for farming or subject to restrictions as a result of various conservation measures. With inadequate lands to support a population that had started to recover, by the 1930s large numbers of Tūhoe began moving elsewhere in search of employment opportunities. Matters were not helped by the establishment of the Urewera National Park in 1954, which placed further kerbs on access to customary resources and hampered the ability to develop lands adjoining or enclosed by the Park. The result is that today nearly five-sixths of all Tūhoe live outside Te Urewera and of those who remain a significant proportion suffer from severe socio-economic deprivation (Tūhoe Claims Settlement Act 2014, s 8(11)).]]>
Last year I was invited to partake in the Constitutional Review series aired on Radio New Zealand and talk about the Tūhoe Treaty of Waitangi Settlement and more specifically the creation of Te Wharehou o Tūhoe (a new house for Tūhoe) (‘Debating the Constitution 3: Māori Aspirations’ from Constitutional Review, 28 April 2013. http://www.radionz.co.nz/national/programmes/constitutional-review).
The following is an adaptation of the address I gave as part of this. The building of Te Wharehou o Tūhoe under the name Te Uru Taumatua, as our Post Settlement Governance Entity (PSGE) is not just the figurative structure of a political governance entity but also the literal building of Te Kura Whare in Tāneatua to house the PSGE, and more importantly to house our kōrero (histories), our people and provide a shelter for Tūhoe future aspirations.
Like the construction of any house, many people are often involved in different aspects of that house. Cumulative tales like the classic ‘This is the house that Jack built’ with its multiple stanzas highlights the different relationships that Jack had in order for him to build his house. Despite the tale continually referring to Jack as building the house, the substance of this tale shows that Jack didn’t build the house by himself.
The construction of Te Wharehou o Tūhoe has involved, directly and indirectly, countless people. It is a cumulative tale that involves the relationships Tūhoe have had and continue to have with our own hapū, with other iwi and with the Crown. The Tūhoe Treaty of Waitangi Settlement is another stanza to Tūhoe history that will be added to this cumulative tale. However, it is one where many dreams and aspirations for Tūhoe will be realised and the prospect of a new and different future is enabled.
The historical injustices of the past that formed the basis of the Tūhoe Treaty of Waitangi Settlement are well documented and too extensive to discuss in this article. However, a snapshot of these historical events can be located on the whare hou’s website (http://www.ngaituhoe.iwi.nz/our-history). (Ed. And see Vincent O’Malley’s background to the Tūhoe settlement (2014) October Māori LR.)
When people think of Tūhoe there are many descriptions that come to mind. However, despite how we have been portrayed historically as rebellious or more recently as terrorists, the foundations of the whare hou (new house) have never changed. Te Urewera and Mana Motuhake continue to be an innate part of who we are as Tūhoe and provide the solid foundations from which Tūhoe were able to construct the whare hou. In negotiating the Tūhoe Treaty of Waitangi settlement Te Urewera and Mana Motuhake were ‘bottom line’ items. Te Kotahi a Tūhoe, as the mandated body established to manage the Tūhoe Treaty of Waitangi Settlement negotiations, were told fervently by Tūhoe not to bother with any settlement if these were not guaranteed. The negotiation of the settlement’s quantum was the other bottom line that was included in the Te Kotahi a Tūhoe’s mandate.
The Treaty of Waitangi settlements process has been interesting for Tūhoe. For a long time, this fell under the raupatu claim of WAI 36 that was led by the Tūhoe Waikaremoana Trust Board. 1 Some dissatisfaction from other members of Tūhoe brought together Ngā Rauru o Ngā Pōtiki as a collective to support other claims that fell outside of WAI 36. Fifteen Te Urewera Inquiry hearings were convened between 2003 and 2005 and provided the evidence of the extent of the historical grievances against the Crown before the Waitangi Tribunal. Many of these historical injustices are described as some of the worst committed during the colonial era and furthermore, were compounded by more than a century of continued failures to rectify these injustices. 2
In an effort to coordinate and cooperate, these two claimant collectives came together and in November 2005 3 Te Kotahi a Tūhoe was formed as the mandated iwi authority to negotiate and settle Tūhoe raupatu claims with the Crown. 4 By October 2006 there were approximately 30 Tūhoe Treaty of Waitangi Claims under the negotiations. Alongside the negotiation of all Tūhoe claims, Te Kotahi a Tūhoe were also responsible for negotiating Tūhoe’s interests in the Central North Island Settlement. The outcome of settling this aspect of Tūhoe claims saw Te Kotahi a Tūhoe create the Tūhoe Establishment Trust to establish a PSGE for Tūhoe that would lead to the consolidation of all Tūhoe authorities under the one roof.
Te Kotahi a Tūhoe gave the Tūhoe Establishment Trust a limited timeframe (2 years) from which to work towards building a Whare Hou for Tūhoe. Their role was to consult extensively with the hapū from Tūhoe as to what a new governance model would look like. Their focus was to establish the new Tūhoe Authority with the objective, ‘he Waihanga i te Whare Kaha o Tūhoe’ (to build a strong house for Tūhoe). At the time there were three entities that had some form of mandate from the iwi. The Tūhoe Waikaremoana Māori Trust Board (TWMTB), Te Kotahi a Tūhoe and the Tūhoe Fisheries Charitable Trust (TFCT).
The Tūhoe Establishment Trust ascertained that the iwi wanted to consolidate all their asset groups to service the people. This objective would lead to one administration of Tūhoe authorities and would better realise the enactment of Mana Motuhake. As the TWMTB and the TFCT both came under distinct legislation this required some negotiation to ensure that consolidation was achieved through the collective effort of shareholders, beneficiaries and the governance bodies of each of these entities. This was enabled primarily because as an iwi the collective interest to achieve Mana Motuhake was the ultimate goal.
Mana Motuhake is a concept that is used in different contexts and means different things to different people. Mana Motuhake is classically defined as autonomy or independence. For Tūhoe we feel it is interdependence, because despite being isolated within what was known as Te Urewera National Park, Tūhoe have always maintained and relied on relationships with others outside of Te Urewera. Tūhoe have been accused of promoting separatism and anarchy against the state but we are more philosophical than that. We know that what defines us as Tūhoe is our whakapapa, our land and our right to determine our relationships with the land and the people. The provisions of the Deed of Settlement relating to Mana Motuhake are about a working relationship between Tūhoe and the Crown over 40 years 5 to create better outcomes for Tūhoe in Te Urewera. In the press release relating to the Service Management Plan, Christopher Finlayson stated “One of the goals of the SMP is to assist Tūhoe to build their capability to manage their own affairs as much as possible, while assisting the Crown in improving delivery of services in Te Urewera.” 6 (Ed. See Māmari Stephens’ article on the Service Management Plan (2014) October Māori LR.)
The realisation of Tūhoe Mana Motuhake is located in Te Urewera. Although philosophically Tūhoe have maintained their Mana Motuhake over Te Urewera, this has historically proven difficult to demonstrate while Te Urewera was still legally recognised as a National Park. As part of the settlement, Te Urewera now has its own legal identity and recognition of the philosophical belief that Tūhoe have held for generations. Te Urewera existed before the people and will continue to exist long after the people and that our role is to take care of it for future generations. This has been reflected in Te Urewera Act 2014. It recognises Tūhoe as the kaitiaki of Te Urewera and ensures that Tūhoe is enabled to fulfil this role as part of the Te Urewera Board. Tūhoe will chair this board, and eventually over time will transition to holding the majority of seats on this board. This is distinctly different from the role Tūhoe served when Te Urewera was a National Park. During the negotiations process there was a perception that the return of Te Urewera to Tūhoe would mean that Tūhoe would prohibit people from accessing Te Urewera. This is further from the truth.
Although the eventual legislative outcome of Te Urewera is one in which Tūhoe supports (particularly as Te Urewera is an integral part in the construction of the Whare Hou) there was a moment in the negotiations journey where this was momentarily jeopardised. On the eve of signing the Agreement in Principle with the Crown in 2010 Prime Minister John Key removed Te Urewera from the negotiation table. For many in the tribe this demonstrated yet again the Crown’s undermining of Tūhoe Mana Motuhake. This action proved a challenging time for Te Kotahi a Tūhoe in forging ahead with the negotiations and potentially had set the settlement process back at square one. However, the desire to continue with the construction of Te Whare Hou, outweighed the emotional angst associated with the removal of Te Urewera at that time. Te Kotahi a Tūhoe continued to negotiate not only with the Crown (but also the iwi) and eventually saw Te Urewera returned to the negotiation table.
After a period of discontent and frustration, a significant turning point in the negotiation took place between Tūhoe and the Crown committing to a way forward. On the 2 July 2011 a political compact between Tūhoe and the Crown was signed in Ruatāhuna, ‘Nā Kōrero Ranatira ā Tūhoe me Te Karauna.’ 7 In the compact, it states:
Tatū mai ki tēnei wā, kua herea a Tūhoe me Te Karauna kia rite tētahi puretumu e whakatikaina ai nā tini hē i whakawhiua poka noatia ai a Tūhoe i roto i nā rau tau, otiia, ki tēnā whakatipurana ki tēnā whakatipurana. He wā momoho tēnei mā māua, mā Tūhoe me Te Karauna kia hīkoi, kia mahi tahi hoki kia kaua ai e tāmatemate te āhua ranatira, kia mau pū tonu ai te whakamanawatana o tāua tahi, kia ana whakamua ai anō te ora mō tāua tahi. E tika ana anō hoki, hai whāina pae tata mā tāua, kia whakaae tahi tāua ki ō tāua āheina mana, tēnā ki tō tēnā.
Now, however Tūhoe and the Crown have committed themselves to achieving a just and honourable redress for the manifold wrongs inflicted on Tūhoe over centuries and many generations. It is timely, therefore, that we, Tūhoe and the Crown, resolve to walk and work together for our mutual honour, dignity, advantage and progress. And it is fitting that in furtherance of such resolve the Crown and Tūhoe should acknowledge their respective mana. 8
The significance of this compact restored some faith in Tūhoe that the Crown was willing to acknowledge their mana and continue to work towards a settlement. Furthermore, the signatories to this document were the hapū of Tūhoe, rather than Te Kotahi a Tūhoe to give substance to the compact. The organisation of Tūhoe has always been hapū based, and within the respective taraipara (tribals), 9 issues that relate specifically to hapū are managed by these taraipara to ensure the protection and maintenance of Tūhoe Mana Motuhake, particularly over resources and boundaries.
The Tūhoe Establishment Trust continued to meet its objectives and set into place the Whare Hou. This included a pathway that led to the consolidation of the existing authorities, a representation framework and election process, consolidating the iwi register, work on infrastructure plans including buildings and locations, as well as establishing an investment committee that protected assets and prepared the finances for the transfer to the new Tūhoe authority. The outcome of this work saw the establishment of the governance body Te Uru Taumatua – Te Whare Hou o Tūhoe.
A significant project that Te Uru Taumatua undertook was not only the figurative establishment of Te Whare Hou, it was also the literal establishment of Te Kura Whare in Tāneatua. This award winning ‘green’ living building was a collaborative effort with architects, designers, engineers, builders and other contractors as well as Tūhoe people themselves. The materials for this building literally come from Te Urewera including the wood and the clay that were used to form the bricks that feature in the building. Clay was tested from all regions of Te Urewera and everyone from the tribe was invited to create these bricks. The opportunity to physically contribute to the creation of a Whare Hou, which serves as a headquarters for the tribe, allows the people to take ownership of the Whare through their participation in the literal creation of it.
While Te Kura Whare was being built, Te Kotahi a Tūhoe continued with negotiations and on 22 March 2013 they initialled the Deed of Settlement in Wellington. The signing of the Deed of Settlement occurred in June 2013. Over a thousand people came to this ceremony at Parliament buildings. In keeping with Tūhoe Mana Motuhake beliefs, Te Kotahi a Tūhoe as well as a member from each hapū of Tūhoe signed the Deed of Settlement. Tūhoe who also attended the ceremony were given copies to sign to further endorse the tribe’s support for the Treaty of Waitangi settlement.
As the Te Urewera-Tūhoe Bill made its way through Parliament, Te Kura Whare was completed and opened in March 2014. The second reading of the Bill took place on 7 May 2014 and the Committee of the whole House was held the following month. It was noted by parliamentarians that it was unusual for Treaty of Waitangi settlement legislation to have to come back for the Committee of the whole House, however, despite some minor debate; it progressed to its third and final reading on 24 of July 2014.
The final aspect of the creation of the Whare Hou occurred on the 22 August 2014 at Te Kura Whare in Tāneatua, when the Crown delivered its apology for the historical grievances inflicted on Tūhoe. From a Tūhoe perspective this was a different position to be placed in. People had not generally come to apologise to the iwi. However, it was decided that it should be viewed as a ‘hohou i te rongo’ (sealing of the peace) opportunity and with the return of specific taonga to the iwi by the Crown this would give significance to such an occasion. Tūhoe decided to reciprocate by returning the hapū flags that bore the Union Jack insignia that had been used at the various marae across Te Urewera to confirm this peace pact.
In his delivery, the Minister for Treaty of Waitangi Negotiations the Honourable Christopher Finlayson, concluded his speech by saying: ‘Let these words guide our way to a greenstone door – tatau pounamu – which looks back on the past and closes it, which looks forward to the future and opens it.’ 10 The building of Te Whare Hou o Tūhoe is analogous to this tatau pounamu and the future for Tūhoe looks prosperous as we open the door to the future opportunities that firmly recognise Te Mana Motuhake o Tūhoe and Te Urewera.
In returning to the reference of the cumulative tale of Jack and the house he built, and in writing the next stanza of Tūhoe’s tale, we know that the Whare Hou was a combined and collaborative effort that began generations beforehand and its success can only be realised generations from now. What we do know is that this collective effort was premised on our fundamental and unwavering belief in Te Urewera and Mana Motuhake. Maintaining this drive was aided by statements used in early Tūhoe literature relating to the settlements process 11 such as ‘Tātau Katoa, Tātau Ka Toa’ (through our collective power we can succeed). Simple, effective and now realised so Tūhoe can say: Te Uru Taumatua - this is the house that ‘we’ built.
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:
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.
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.]]>
A new dawn for conservation management in Aotearoa New Zealand has arrived with the enactment of Te Urewera Act 2014. Te Urewera, named a national park in 1954 and most recently managed as Crown land by the Department of Conservation became Te Urewera on 27 July 2014: “a legal entity” with “all the rights, powers, duties, and liabilities of a legal person” (section 11(1)). Te Urewera Act is undoubtedly legally revolutionary here in Aotearoa New Zealand and on a world scale.
Te Urewera Act makes clear that Te Urewera ceases to be vested in the Crown, ceases to be Crown land, and ceases to be a national park (s 12). Te Urewera is now freehold land (albeit inalienable except in accordance with Te Urewera Act, see s 13).
Te Urewera is now managed not by the Department of Conservation but by the new Te Urewera Board. This Board is responsible “to act on behalf of, and in the name of, Te Urewera” (s 17(a)). Te Urewera will still have a management plan like national parks in New Zealand. The Board, rather than the Department of Conservation, will approve these plans (s 18). For the first 3 years, the Board has an equal membership of Tūhoe and Crown appointed persons (4 persons each). Thereafter, the Board will increase by 1 and the ratio will change so that 6 persons are Tūhoe-appointed and 3 persons are Crown-appointed (s 21).
The Board, in contrast to nearly any other statutorily created body, including the Department of Conservation, is directed to reflect customary values and law. Section 18(2) states that the Board may “consider and give expression to “Tūhoetanga” and “Tūhoe concepts of management such as rāhui, tapu me noa, mana me mauri, and tohu”.
Section 20 makes it clear that the Board “must consider and provide appropriately for the relationship of iwi and hapū and their culture and traditions with Te Urewera when making decisions” and that the purpose of this is to “recognise and reflect” Tūhoetanga and the Crown’s responsibility under the Treaty of Waitangi (Te Tiriti o Waitangi).
The Act mandates that the Board must strive to make some decisions by unanimous agreement (such as the approval of Te Urewera management plan) and some decisions by consensus (see sections 33 and 34).
The Board must work with the chief executive of Tūhoe Te Uru Taumatua and the Director-General of Conservation to develop an annual budget. Section 38(2) states that the chief executive and the Director-General “must contribute equally to the costs provided for in the budget, unless both agree to a different contribution”.
All revenue received by the Board must be paid into a bank account of the Board and used for achieving the purpose of the Act (s 39(1)).
For taxation purposes, Te Urewera and the Board are deemed to be the same person (s 40(1)).
Similarly to national parks, work undertaken in Te Urewera does not require a resource consent under the Resource Management Act 1991 if that work is for the purpose of managing Te Urewera, is consistent with Te Urewera Act and its management plan, and does not have a significant adverse effect on the environment beyond the boundary of Te Urewera (s 43).
The chief executive of Tūhoe Te Uru Taumatua and the Director-General of Conservation are responsible for the operational management of Te Urewera (s 50) and must prepare an annual operational plan (s 53).
The Director-General and every other person who performs functions and exercises powers and duties under the Conservation Act 1987 has the powers that are necessary or expedient for the performance of the functions and exercise of the powers and duties under Te Urewera Act (s 52).
Te Urewera Act stipulates what activities are permitted in Te Urewera and what activities require authorisation and in what form (see s 55). The National Parks Act does something similar for national parks.
Section 58 of Te Urewera Act lists activities that require an activity permit. These include: taking any plant; disturbing or hunting any animal (other than sports fish); possessing dead protected wildlife for any cultural or other purpose; entering specially protected areas; making a road; establishing accommodation; farming; and recreational hunting. This is a comprehensive list and demonstrates that the tight rules for preserving national park land have been transported to Te Urewera.
Throughout Te Urewera Act the legislation is clear that Te Urewera may still be mined. Section 64(1) is one example of this where it states: “Despite anything in this Act, Te Urewera land is to be treated as if it were Crown land described in Schedule 4 of the Crown Minerals Act 1991” (see also s 56(b) where a mining activity authorised by the Crown Minerals Act can be undertaken without authorisation from the Board).
Section 3 of Te Urewera Act is so beautifully expressed that I have copied it in full here:
3 Background to this Act
(1) Te Urewera is ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty.
(2) Te Urewera is a place of spiritual value, with its own mana and mauri.
(3) Te Urewera has an identity in and of itself, inspiring people to commit to its care.
Te Urewera and Tūhoe
(4) For Tūhoe, Te Urewera is Te Manawa o te Ika a Māui; it is the heart of the great fish of Maui, its name being derived from Murakareke, the son of the ancestor Tūhoe.
(5) For Tūhoe, Te Urewera is their ewe whenua, their place of origin and return, their homeland.
(6) Te Urewera expresses and gives meaning to Tūhoe culture, language, customs, and identity. There Tūhoe hold mana by ahikāroa; they are tangata whenua and kaitiaki of Te Urewera.
Te Urewera and all New Zealanders
(7) Te Urewera is prized by other iwi and hapū who have acknowledged special associations with, and customary interests in, parts of Te Urewera.
(8) Te Urewera is also prized by all New Zealanders as a place of outstanding national value and intrinsic worth; it is treasured by all for the distinctive natural values of its vast and rugged primeval forest, and for the integrity of those values; for its indigenous ecological systems and biodiversity, its historical and cultural heritage, its scientific importance, and as a place for outdoor recreation and spiritual reflection.
Tūhoe and the Crown: shared views and intentions
(9) Tūhoe and the Crown share the view that Te Urewera should have legal recognition in its own right, with the responsibilities for its care and conservation set out in the law of New Zealand. To this end, Tūhoe and the Crown have together taken a unique approach, as set out in this Act, to protecting Te Urewera in a way that reflects New Zealand’s culture and values.
(10) The Crown and Tūhoe intend this Act to contribute to resolving the grief of Tūhoe and to strengthening and maintaining the connection between Tūhoe and Te Urewera.
Te Urewera Act is significant in a comparative domestic and international context.
First, Te Urewera Act marks for the first time in New Zealand’s history the permanent removal of a national park from the national park legislation. It has been long-standing Crown policy that conservation land should not be returned to iwi ownership. The creation of Te Urewera as its own entity has provided a win-win solution for Tūhoe and the Crown. The only other Treaty claims settlement that contemplates removal of land from the National Parks Act 1980 is the provision in the Ngāi Tahu Claims Settlement Act 1998 that provides that the Crown will vest the title of Aoraki/Mount Cook in Te Rūnanga o Ngāi Tahu for a period of 7 days. After 7 days, Ngāi Tahu will gift the mountain back to the nation as the centre piece of the Aoraki/Mount Cook National Park. Te Rūnanga o Ngāi Tahu have yet to action this temporary vesting.
Secondly, while there are similarities between Te Urewera Act and the National Parks Act (such as the requirement to have a management plan and ensure these lands are available for public use and enjoyment) the purpose for setting aside the land is subtly but importantly different. The National Parks Act is premised on preserving national parks in perpetuity “for their intrinsic worth and for the benefit, use, and enjoyment of the public,” areas of New Zealand that contain scenery of such distinctive quality, ecological systems, or natural features so beautiful, unique, or scientifically important that their preservation is in the national interest (s 4). The National Parks Act does not recognise the importance of lands encased in national park boundaries as being culturally and spiritually important to iwi. The National Parks Act is a mono-cultural statute premising Western values for preserving land. Te Urewera Act demonstrates a new bi-cultural way of articulating the importance of national park lands for multiple reasons ranging from science to cultural. Section 4 of Te Urewera Act reads:
4 Purpose of this Act
The purpose of this Act is to establish and preserve in perpetuity a legal identity and protected status for Te Urewera for its intrinsic worth, its distinctive natural and cultural values, the integrity of those values, and for its national importance, and in particular to—
(a) strengthen and maintain the connection between Tūhoe and Te Urewera; and
(b) preserve as far as possible the natural features and beauty of Te Urewera, the integrity of its indigenous ecological systems and biodiversity, and its historical and cultural heritage; and
(c) provide for Te Urewera as a place for public use and enjoyment, for recreation, learning, and spiritual reflection, and as an inspiration for all.
Third, Te Urewera Act will be of immense interest internationally for aspects concerning ownership, management and purpose. For example, the Canadian national park legislation clearly states that the Crown has “clear title to or an unencumbered right of ownership in the lands to be included in the park” (s 5(1)(a) of the Canada National Parks Act 2000).
In the late 19th century and early 20th century, at times, Canada forcibly removed Aboriginal groups from lands intended for national parks in order to assert clear title. In the 1970s, as Canada sought to create new national parks in the remote northern territories of Canada a new solution to diluting the ownership issue was initiated. Canada introduced the novel legislative tool: the national park reserve label. The legal definition for a national park reserve is an area or a portion of an area proposed for a park that is subject to a claim in respect of Aboriginal rights that has been accepted for negotiation by the Government of Canada (see s 4(2) of the Canada National Parks Act 2000). The idea is that Canada can set land aside as a national park reserve and manage it as if it were a national park even if there is an accepted Aboriginal rights claim to the land in question. After negotiating with the relevant Aboriginal peoples, the Crown can confirm the land as a national park.
There are several instances in Canada’s northern territories where Aboriginal peoples have acquiesced to the national parks and thus Crown ownership of these lands. But in the southern more populated provinces, the ownership issue is more contentious. No national park reserves in the south have been reclassified as national parks. In fact, national parks created since the 1970s in the south have not often even used this temporary national park reserve label. Ownership and management of many of the southern national parks remains heated.
Significance of the legislation for New Zealand
The comments by some of our Members of Parliament during the third reading of the Bill that became Te Urewera Act capture the importance of this statute. For example:
Catherine Delahunty (Green Party MP)
“… It was never a park. That was a label imposed in the 1950s based on an old behaviour pattern since colonisation, and it has melted in the mist like all the other attempts to colonise the heart of the motu and the “children of the mist”...”
Hon Dr Nick Smith (Minister of Conservation)
“… It is surprising for me, as a Minister of Conservation in the 1990s who was involved under the leadership of the Rt Hon Jim Bolger—who is in the House—in the huge debate that occurred around the provisions of the Ngāi Tahu settlement in respect of conservation land, how far this country and this Parliament have come when we now get to this Tūhoe settlement in respect of the treasured Te Urewera National Park. If you had told me 15 years ago that Parliament would almost unanimously be able to agree to this bill, I would have said “You’re dreaming mate”. It has been a real journey for New Zealand, iwi, and Parliament to get used to the idea that Māori are perfectly capable of conserving New Zealand treasures at least as well as Pākehā and departments of State…”
Hon Dr Pita Sharples (Minister of Māori Affairs)
“… The settlement is a profound alternative to the human presumption of sovereignty over the natural world. It restores to Tūhoe their role as kaitiaki and it embodies their hopes of self-determination—Tūhoe autonomy for the 21st century, Tūhoe services for Tūhoe, benefit on Tūhoe terms, and Tūhoe living by Tūhoe traditions and Tūhoe aspirations…”
My post-graduate thesis work (LLM completed in 2002 and PhD completed in 2012) argued for the reform of owning and managing national parks. As I concluded in my comparative PhD:
“National park lands encase the lived homes of Indigenous peoples. Today, the law reflects a new societal goal that seeks to reconcile with Indigenous peoples for the past wrongs of taking their lands and denying them the very means to be true to themselves, their ancestors, and their grandchildren. National parks have the potential to play an instrumental role in committing to this reconciliation journey. National parks are symbolic of our national identity and our future, and the parks contain Crown lands that thus enable the Crown to lead in implementing a new way of thinking about owning and managing lands including national parks.”
While I dreamed for radical legislative reform when writing my PhD, I did not know when I graduated that the horizon for change was so near. The enactment of Te Urewera Act makes me immensely proud to be a New Zealander.]]>