LAWS 110 - Ngai Tahu Claim Lecture Slides PDF

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LAWS 110 - Ngai Tahu Claim Lecture Slides...

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Ngai Tahu Claim Timeline of Events  Waitaha – first people of the South Island o Followed by Ngai Tahu  Warfare, intermarriage and political alliances led to a common alliance of all South Island Maori to Ngai Tahu  Ngai tahu wove the traditions of Waitaha, Ngati Mamoe and Ngai Tahu into a unified world view o This united Ngai Tahu as mana whenua as the tribal authority  Ngai Tahu owned 80% of the South Island  Colonisation threatened this authority o Ostracize Ngai Tahu from the land o Fragmentated relationships o Suppressed language and knowledge  Settlers brought Ngai Tahu land in nine sales over 20 years o 1844 – Otago – £2400 o 1848 – Kemp Purchase – £2000 o 1948 – Banks Peninsular – £500 o 1853 – Murihiku Block – £2600 o 1856 – Akaroa – £200 o 1857 – North Canterbury – £500 o 1959 – Kaikoura – £300 o 1860 – Arahura – £300 o 1863 – Stewart Island – £6000  Total - £14800  80% of South Island  34.5 million acres  £1 = 1-week wages for unskilled worker  Crown did not for fill its promises of o Giving 10% back to Ngai Tahu o Building schools & hospitals o Maintaining access to traditional food gathering  In response to these wrong doings Ngai Tahu rangatera petitioned the crown seeking compensation in 1849  Than sent another letter in 1857 to Queen Victoria that was signed by all rangatera in Ngai Tahu o This was the genesis for the Ngai Tahu Claim o It took 7 generations (150 years) before it was lodged in 1986 o Passed in 1998  Ngai Tahu received  cultural, economic and tribal redress  An apology for the crown  Recognition of Te Puna  20 years later Ngai Tahu have a diverse portfolio with major investments in o Farming o Tourism

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o Property o Seafood These commercial activities help Ngai Tahu o Reclaim their culture o Connect communities o Care for the environment o Grow the economy o “For us and our children after us”

Timeline of Claim 1844-1864: Deeds of Purchase. 1848: ‘Blue Book’- Middle Island census. 1849: Tira Morehu. First Ngāi Tahu claim against the Crown for breach of contract. 1879: Smith-Nairn Commission is established 1906: SILNA- South Island Landless Natives Act, a ‘cruel hoax’. 1986: Ngāi Tahu submits its claim. 1991: Waitangi Tribunal releases first findings; 1995: further findings. 1991: Ngāi Tahu/Crown Settlement negotiations begin. 1994: Negotiations collapse; 1996: and then resume. 1997: Deed of Settlement passed 1999: Deed takes effect. The Settlement The Ngāi Tahu Settlement had a long and arduous journey to completion, and even though the heads of agreement was signed in 1996 there are still some aspects of the settlement that have not yet come to fruition. What follows is a summary of the struggle, the road to Settlement and the Settlement package. This is a condensed version of the Te Karaka Special Edition Crown Settlement Offer, which was a consultation document, sent out from the Ngāi Tahu Negotiating Group in November 1998. Where possible the offer has been updated to include what has actually happened since the offer was made. Claim History Overview “These are the things which divide the Māoris from the Europeans. They feel that the promises made by the Europeans have not been fulfilled, while all that the Māori have promised has been fulfilled.” - Hori Kerei Taiaroa, MHR speaking in NZ Parliament 21 October 1878 

A long time coming… The History of Te Kerēme “Now in making purchases from the natives I ever represented to them that though money payment might be small, their chief recompense would lie in the kindness of the Government towards them, the erection and maintenance of schools and hospitals for their benefit… Mantell Ngāi Tahu, our tribe had its first contact with Pākehā (European) sealers and whalers from around 1795. By the 1830s Ngāi Tahu had built up a thriving industry supplying whaling ships

with provisions such as pigs, potatoes and wheat. Shore stations were established from 1835 under the authority of local Ngāi Tahu chiefs. Many Ngāi Tahu women married whalers, and the tribe was no stranger to European ways. When seven high-ranking southern chiefs signed the Treaty of Waitangi in 1840, it was seen as a convenient arrangement between equals. By 1849 when the Crown began defaulting on the terms of a series of ten major land purchases dating from 1844, earlier suspicions of the Crown’s good faith by some of the Ngāi Tahu chiefs were confirmed, and the Ngāi Tahu Claim ‘Te Kerēme’ was born. The Crown undertook to set aside adequate reserves to have been approximately 10% of the 34.5 million acres sold – but this was never done. There were also disputes over boundaries, and the Crown’s failure to establish schools and hospitals, as promised. In addition, the tribe lost its access to its mahinga kai, or food gathering resources, and other sacred places such as urupa. Ngāi Tahu made its first claim against the Crown for breach of contract in 1849. Matiaha Tiramōrehu petitioned the Crown to have put aside adequate reserves of land for the iwi, as it had agreed to do under the terms of its land purchases from Ngāi Tahu. In the 20 years from 1844, Ngāi Tahu signed formal land sale contracts with the Crown for some 34.5 million acres, approximately 80% of the South Island, Te Waipounamu. The Crown failed to honour its part of those contracts when it did not allocate one-tenth of the land to the iwi, as agreed. It also refused to pay a fair price for the land. Robbed of the opportunity to participate in the land-based economy alongside the settlers, Ngāi Tahu became an impoverished and virtually landless tribe. Its full claim involved some 3.4 million acres of lost land, one-tenth of the Ngāi Tahu land total sold to the Crown. When Ngāi Tahu first took its case to the courts, in 1868, the government passed laws to prevent the Courts from hearing or ruling on the case. A Commission of Inquiry a decade later – the Smith-Nairn Commission, had its funding halted by a new Government and went into recess without delivering any findings despite positive progress reports. In 1887, Royal Commissioner Judge MacKay said only a”substantial endowment” of land secured to Ngāi Tahu ownership would go some of the way to “right so many years of neglect”. A change of Government meant that the Commission’s report was never actioned. By the time of the findings on the Ngāi Tahu land claim by the Waitangi Tribunal in 1991, at least a dozen different commissions, inquiries, courts and tribunals had repeatedly established the veracity and justice of the Ngāi Tahu claim. 

The Waitangi Tribunal itself said after extensive hearings: “The Tribunal cannot avoid the conclusion that in acquiring from Ngāi Tahu 34.5 million acres, more than half the land mass of New Zealand, for £14,750 pounds, and leaving them with only 35,757 acres, the Crown acted unconscionably and in repeated breach of the Treaty of Waitaingi”. “As a consequence, Ngāi Tahu has suffered grave injustices over more than 140 years. The tribe is clearly entitled to very substantial redress from the Crown”.

These “grave injustices” based on the “unconscionable theft” by the Crown were the basis of the claim which Ngāi Tahu pursued. As well as stolen land and food sources, fisheries and forests, the claim also relates to hospitals and schools, which Crown agents had promised would be built and provided for iwi in each area when the land purchases were made. Dozens of breaches of the Treaty of Waitangi provisions are identified in the Tribunal’s three separate reports on Ngāi Tahu claims. These reports detail clear fraud and theft by the Crown, which deliberately used every available process and loophole to alienate Ngāi Tahu from its land and resources, for minimum payment. Ngāi Tahu did not suffer openly declared raupatu or confiscations, as happened in the north. However, the Crown’s action in taking land and refusing to meet it’s contract obligation to allocate one-tenth to the iwi, deprived five generations of the tribe of virtually all the land and resources required to survive at anything other than subsistence level. By the early 1900s, fewer than 2,000 Ngāi Tahu remained alive in their own land. In 1986, Rakihia Tau filed the Ngāi Tahu claims with the Waitangi Tribunal. Negotiations between the Crown and Ngāi Tahu on the claims began in 1991, after the release of the tribunal’s Ngāi Tahu Land Claims report. The assets available for use in any settlement were recognised as Crown-owned assets within the Ngāi Tahu tribal boundaries in the South Island. Ngāi Tahu has consistently said no private land or homes should be included in the negotiations. The negotiations which began in 1991 were suspended unilaterally by the Crown in 1994. Ngāi Tahu then sought and won court orders against the Crown, securing orders to prevent the sale of Crown-owned land and other Crown assets in the South Island. The Court ruled such assets had to be preserved for potential use in any settlement reached between the parties. Following the intervention of the then Prime Minister, Mr Jim Bolger, negotiations were resumed in 1996. They led to the signing of the non-binding Heads of Agreement on the 5th of October 1996, then the signing of the Deed of Settlement at Kaikōura on the 21st November 1997, and the passage of the Ngāi Tahu Claim Settlement Act on the 29th September 1998. Extensive details on the Settlement process can be found under The Settlement. Ngāi Tahu received cultural redress in the form of confirmation of the ability for Ngāi Tahu to express its traditional kaitiaki relationship with the environment, tribal redress, an apology from the Crown, acknowledgement of the role of our taonga Aoraki and economic redress in the form of a payment of $170 million plus the ability to purchase property from the Crown. This financial acknowledgement has allowed the tribe to establish itself as an economic powerhouse within the South Island. Today, Ngāi Tahu has interests in fishing, tourism,

property as well as a diversified equities portfolio, all of which are managed through Ngāi Tahu Holdings Ltd. This financial security enables the tribe to deliver social benefits back to iwi members through The Office of Te Rūnanga o Ngāi Tahu. To enroll as a beneficiary of Ngāi Tahu iwi members must be able to whakapapa – or trace ancestry back to the official census list of all Ngāi Tahu living in 1848 – the so-called ‘Blue Book.’ This valuable resource has enabled many people to verify their roots, and has provided a model for other tribes. Today Ngāi Tahu can be found living in every corner of the globe although the majority of Ngāi Tahu choose to live in New Zealand. The Negotiations The Crown’s Settlement Offer was negotiated on behalf of Ngāi Tahu by the Ngāi Tahu Negotiating Group. These people followed in the footsteps of many Ngāi Tahu who have, over the years, worked tirelessly to have Te Kerēme resolved. The team was further refined into three task groups for the negotiation of the draft Deed of Settlement that forms the Crown’s Settlement Offer. The Crown structured its own negotiating teams to match the Ngāi Tahu model and contracted a partner from Coopers and Lybrand to fill the role of negotiating team leader.  A-Team – The Principals This team was mandated by Te Rūnanga o Ngāi Tahu to manage the negotiations process and to carry out the tasks necessary to advance the resolution of Te Kerēme. It was responsible for negotiating directly with government Ministers and resolving the major negotiating differences, and was chaired by Sir Tipene O’Regan. Other Ngāi Tahu leaders in the A-Team at the time of the Crown’s formal Settlement Offer were Trevor Howse, Kuao Langsbury, Edward Ellison and Charles Crofts in his role as Kaiwhakahaere of Te Rūnanga o Ngāi Tahu. Rakiihia Tau (Snr) was a member of the A-Team until shortly before the Crown’s Settlement Offer was received. He was replaced soon afterwards by his son, Rakiihia Tau (Jnr). The Principals were also supported by Paul Baines, formerly of CS First Boston. 

B-Team – The Overall Negotiating Group This executive team worked directly with, and advised, the Ngāi Tahu A-Team on all matters relating to the Claim. During the negotiations it dealt with high-level officials from many government departments, including the Office of Treaty Settlements, The Treasury, Crown Law Office, the Department of Conservation, and the Crown’s legal advisers, Chapman Tripp. Along with the C-Teams, the Ngāi Tahu B-Team bore the brunt of the day-to-day negotiations with the Crown on every aspect of the Crown’s formal Settlement Offer. The B-Team was led by the Chief Executive of Ngāi Tahu Group Management, Sid Ashton. The team also included legal adviser Nick Davidson from Bell Gully, commercial adviser Richard Meade from First NZ Capital, Charles Crofts, and Claims Manager Anake Goodall.

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C-Team – The Specialist Groups

These diverse teams carried out the detailed research and clause by clause negotiation of the various sections of the draft Deed of Settlement that made up the Crown’s Settlement Offer. These teams also interacted with the officials and staff of various government departments, often at an operational level. Actively supporting the B-Team, and advised by kaumātua and many other tribal experts, these teams were divided into separate task groups. Each group focused on a separate aspect of the Claim, such as mahinga kai. C-Team members participated in the regular negotiating sessions between Ngāi Tahu and the Crown B-Teams. The team leaders for the various Cultural Redress teams included Diane Crengle, Justine Inns, Jan West and Sandra Cook. They were assisted by legal adviser Linda Constable of Lane Neave. Te Maire Tau led the Apology team and Tony Sewell was team leader for the Economic Redress group which also included David Chisnall of Bell Gully. A number of other professional advisers were also used on a case by case basis to support the teams in their work. At least one B-Team member and/or A-Team member participated in the work of the individual C-Teams. Regular meetings were held between each of the various teams and their members to ensure that the negotiating effort was at all times focused and coordinated. This strategy contributed significantly to the successful resolution of the negotiations. Many advisors from individual rūnanga were also consulted, along with the part-time involvement of others for specific advice. This combination of tribal and professional expertise, allowed the successful progressing of the Claim to the point of receiving the Crown’s Settlement Offer. The Settlement Offer All elements of the package detailed in the Crown’s Settlement Offer came into effect after the passing of the Settlement Legislation and Te Rūnanga o Ngāi Tahu approving the form of that legislation, on the 29th of September 1998. 

The Apology One of the most important aspects of the Crown’s Settlement Offer was a formal apology by the Crown. The wording was given much thought by both parties. The Crown included a formal apology as part of the Deed of Settlement and the settlement legislation to acknowledge that Ngāi Tahu suffered grave injustices that significantly impaired its economic, social and cultural development. In the Apology “the Crown expressed its profound regret and apologised unreservedly” for the suffering and hardship caused to Ngāi Tahu. Importantly, the Apology confirmed the validity of the Ngāi Tahu Claims, which had been borne by seven generations. The Crown sought to atone for these acknowledged injustices on behalf of all New Zealanders and also apologised publicly. The Apology was in both Māori and English, and acknowledged that the Crown acted “unconscionably and in repeated breach of the principles of the Treaty of Waitangi in its dealings with Ngāi Tahu in the purchase of Ngāi Tahu land.”

The Crown recognised that it “failed to act towards Ngāi Tahu reasonably and with the utmost good faith, consistent with the honour of the Crown” and failed to “preserve and protect Ngāi Tahu use and ownership of such of their land and valued possessions as they wished to retain”. With the historical grievances settled, the Crown wanted to “begin the process of healing and to enter a new age of co-operation with Ngāi Tahu”. The Crown also acknowledged that the settlement did not “diminish or in any way affect the Treaty of Waitangi or any of its Articles or the ongoing relationship between the Crown and Ngāi Tahu … or undermine any rights under the Treaty…” It also acknowledged that by agreeing to the settlement Ngāi Tahu was “forgoing a substantial part of the redress sought” and this was recognised as a contribution to the development of New Zealand. 

The Crowns Apology o The Crown recognises the protracted labours of the Ngāi Tahu ancestors in pursuit of their claims for redress and compensation against the Crown for nearly 150 years, as alluded to in the Ngāi Tahu proverb ‘He mahi kai takata, he mahi kai hoaka’ (‘It is work that consumes people, as greenstone consumes sandstone’). The Ngāi Tahu understanding of the Crowns responsibilities conveyed to Queen Victoria by Matiaha Tiramōrehu in a petition in 1857, guided the Ngāi Tahu ancestors. Tiramōrehu wrote: o ‘This was the command thy love laid upon these Governors … that the law be made one, that the commandments be made one, that the nation be made one, that the white skin be made just equal with the dark skin, and to lay down the love of thy graciousness to the Māori that they dwell happily … and remember the power of thy name’. o The Crown hereby acknowledges the work of the Ngāi Tahu ancestors and makes this apology to them and to their descendants. o The Crown acknowledges that it acted unconscionably and in repeated breach of the principles of the Treaty of Waitangi in its dealings with Ngāi Tahu in the purchases of Ngāi Tahu land. The Crown further acknowledges that in relation to the deeds of purchase it has failed in most material respects to honour its obligations to Ngāi Tahu as its Treaty partner, while it also failed to set aside adequate lands for Ngāi Tahu use, and to provide adequate economic and social resources for Ngāi Tahu. o The Crown acknowledges that, in breach of Article Two of the Treaty, it failed to preserve and protect Ngāi Tahu use and ownership of such of their land and valued possessions as they wished to retain. o The Crown recognises that it has failed to act towards Ngāi Tahu reasonably and with the utmost good faith in a manner consistent with the honour of the Crown. That failure is referred to in the Ngāi Tahu saying ‘Te Hapa o Niu Tireni!’ (‘The unfulfilled promise of New Zealand’). The Crown further recognises that its failure always to act with good faith deprived Ngāi Tahu of the opportunity to develop and kept the tribe for several generations in a state of poverty, a state referred to in the proverb ‘Te mate o te iwi’ (‘The malaise of the tribe’). o The Crown recognises that Ngāi Tahu has been consistently loyal to the Crown, and that the tribe has honoured its obligations and responsibilities under the Treaty of Waitangi and duties as citizens of the nation, especially, but not exclusively, in their

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active service in all of the major conflicts up to the present time to which New Zealand has sent troops. The Crown pays tribute to Ngāi Tahu loyalty and to the contribution made by the tribe to the nation. The Crown expresses its profound regret and apologises unreservedly to all members of Ngāi Tahu Whānui for the suffering and hardship caused to Ngāi Tahu, and for the harmful effects which resulted to the welfare, economy and development of Ngāi Tahu as a tribe. The Crown acknowledges that such suffering, hardship and harmful effects resulted from its failures to honour its obligations to Ngāi Tahu under the deeds of purchase whereby it acquired Ngāi Tahu lands, to set aside adequate lands for the tribe’s use, to allow reasonable access to traditional sources of food, to protect Ngāi Tahu rights to pounamu and such other valued possessions as the tribe wished to retain, or to remedy effectually Ngāi Tahu grievances. The Crown apologises to Ngāi Tahu for its past failures to acknow...