Treaty Claims Progression Committee – Update March 2018

PTB will be holding a Hui a Iwi on Sunday 29th April 2018 at Rangiora marae, Takahiwai to update the hapu on progress with the Treaty Claim progress. This update will clarify the process to date.

What is the Treaty Claim Strategy of Patuharakeke Te Iwi?

Our strategy has been to present well researched evidence with respect to the comprehensive Wai 745 claim for Patuharakeke to the Te Paparahi o Te Raki (Northland) Inquiry (Wai 1040) and to await findings that the historical claims of Patuharakeke are well founded.

PTB has been opposed to the Crown’s strategy to settle Patuharakeke claims by direct negotiation (prior to Wai 1040 Stage 2 report) and is working to prevent partial settlement by Crown mandated iwi groupings such as Ngapuhi (Tuhoronuku), Ngati Wai Trust Board (NTB) and Te Runanaga o Ngati Whatua.

Patuharakeke wishes to exercise hapu rangatiratanga by achieving settlement of its historical claims in a Large Natural Grouping of its choice.

What is a Large Natural Grouping?

Crown policy is to settle comprehensive historical claims in Large Natural Groupings- as defined by a group with defined areas of interest, marae, hapu and Wai claims. One of the frustrations for Patuharakeke is that the Crown has decided to settle its comprehensive claims with three LNG that do not support hapu rangatiratanga and were not of Patuharakeke’s choosing – in fact Patuharakeke were not even consulted. The Crown has applied the LNG policy inflexibly with respect to Patuharakeke – for instance several hapu of Ngati Whatua were recognised as LNG and settled separately (such as Te Roroa and Te Uri O Hau immediately to the south of Patuharakeke) and also a couple of Ngati Wai hapu (Ngati Manuhiri and Ngati Rehua)

What is the Wai 1040 Inquiry?

This inquiry heard Stage 1 evidence from 2010 to 2011 with the Stage 1 report being released in November 2014.

The stage 1 report addressed the issues posed by the Tribunal, which, uniquely in Tribunal inquiries, focused on Māori and Crown understandings of He Whakaputanga o te Rangatiratanga/the Declaration of Independence 1835, and Te Tiriti o Waitangi/the Treaty of Waitangi 1840.

Hearings for Stage 2 of the inquiry concluded in October 2017 and after closing submissions are made in May 2018, the report will then be commenced with completion expected in 2 – 3 years.

Major issues in the Paparahi o Te Raki stage 2 inquiry included:

  • Tino rangatiratanga, kāwanatanga and autonomy: political engagement between Māori and the Crown, including the 1860s rūnanga system and the Crown’s relationship with the Kotahitanga movements of the 1880s, 1890s, and the twentieth century
  • The immediate aftermath of the Treaty of Waitangi (in particular the Old Land Claims process 1841–43, scrip, and surplus lands, Crown pre-emption, and the Northern War 1844–46)
  • The operation of the Native Land Court and the alienation of Māori land in the 19th and 20th centuries
  • The management of Māori land in the twentieth century, including local government and rating, waterways, environmental impacts, and public works takings
  • Takutai moana/foreshore and seabed
  • Economic development and socioeconomic issues and capability
  • Te reo Māori, wāhi tapu, taonga, and tikanga
  • Specific local issues including the Port of Whāngārei/Northport, Marsden Point Refinery, Hauturu (Little Barrier Island) and Hato Petera College – sale of Crown Grants Lands

Patuharakeke presented detailed research on Crown breaches including Crown purchasing in the 1850s, the confiscation of Te Poupouwhenua, failure to set aside and protect reserves, Public Works Act takings and failure to ensure adequate land was retained for economic sustainability.

The Crown has acknowledged that the hapu around Whangarei including Patuharakeke are effectively landless and Patuharakeke believes that just as land was taken, so land should be returned.

What steps has Patuharakeke taken to be removed from Tuhorunuku (TIMA)?

Patuharakeke was one of the parties to file for Urgency with the Tribunal in 2014 opposing the TIMA mandate. The report issued in September 2015 upheld the view that the mandated entity did not uphold hapu rangatiratanga and that negotiations should be halted.

There was also a strong recommendation that hapu that chose to withdraw should be able to do so and the Crown should assist them to form LNG of their choosing. PTB has written twice to the new Minister of Treaty Settlements Andrew Little requesting a meeting to discuss withdrawal from TIMA and has not to date had an acknowledgement.

What steps has Patuharakeke taken to be removed from the Ngati Wai Trust Board Mandate?

Patuharakeke filed for Urgency opposing the NTB mandate in 2016.

The report was released in October 2017 and again made strong recommendations –

  • That hapu rangatiratanga had not been protected
  • That NTB was not “fit for purpose“ to negotiate treaty settlements
  • That mediation should occur between NTB, the Crown and those hapu wishing to withdraw
  • It was recommended that if hapu chose to withdraw then they should be assisted by the Crown to do so.
    Attached is a report by Dixon and Co summarising the key findings of the NTB Urgency report. No mediation has occurred to date and the Crown has not had any further discussion with PTB regarding the NTB mandate.

What steps has Patuharakeke taken to be removed from Te Runanga O Ngati Whatua (TRONW) mandate?

 In 2016 the Crown asked TRONW to refresh its mandate originally obtained in 2008. PTB met with TRONW and requested removal of its comprehensive Wai 745 claim from the mandate for the reasons outlined above. TRONW agreed to this and wrote to PTB in early 2017 confirming that Wai 745 was to be removed and that the Runanga had passed a resolution to that effect.

The Crown has blocked this removal even though the TRONW Deed of Mandate allows for hapu withdrawal and signed an Agreement in Principle (AIP) with TRONW in August 2017 that included Wai 745 and added Wai1308 (Patuharakeke claim for Public Works Taking)

In September 2017 PTB filed for Urgency with the Tribunal. Final submissions have been submitted and we await a decision.

Part of the reason for Urgency is that the Crown has indicated it plans to sign a Deed of Settlement with TRONW before the end of 2018 so that it can proceed also with a settlement for the Kaipara Harbour.

PTB has also initiated a dispute resolution process with TRONW although that process seems futile given that TRONW doesn’t seem to have the authority to remove Patuharakeke Wai claims from the mandate.

As part of the process PTB has met with TRONW in January 2018 and March 2018 to allow “information gathering “by the Runanga including newly elected trustees unfamiliar with the process to date.

The Urgency process opposing the mandate continues with a decision expected in June 2018. If Urgency is granted we will ask for the settlement process with TRONW to be suspended.

If necessary we will apply to the High Court for an injunction to suspend that process.

The Waitangi Tribunal recommendations and findings are not binding on the Crown – what are the implications of that?

 To date the Crown has not engaged with Patuharakeke regarding the Urgency reports for TIMA and NTB other than to reiterate that there is no change to their current policy and strategy.

The only chance that Patuharakeke has of getting back any land through Treaty settlement processes is to resist settlement by direct negotiation with other mandated iwi and then once the Wai 1040 report is issued, to seek binding recommendations from the Tribunal with respect to the 27B memorialised land at Ruakaka. We believe we have a strong case as the Tribunal has previously found that confiscation of land (as in the case of Poupouwhenua) is the most serious of treaty breaches.

We believe that the Tribunal findings to date would strengthen any case we take to the High Court should that be necessary.

Guy Gudex

Co Chair PTB Claims Progression Group