Release of the Waitangi Tribunal’s Third Report on NorthernSouth Island Claims
July 2008

In order to assist the Northern South Island (Te Tau Ihu) claimants in their current negotiations with the Crown the Waitangi Tribunal has issued a series of three ‘staged reports’. The first report (released in March 2007) dealt with customary interests, and the second (released in August 2007) addressed issues concerning the Ngai Tahu takiwa. The Tribunal’s third report, a ‘prepublication copy’ of which was released on June 24, 2008, covers Crown purchasing, the role of the Native Land Court, and the history of Te Tau Ihu Iwi in the twentieth century.

The first two reports upheld Kurahaupo claims. The Tribunal found that the three Iwi (Ngati Kuia, Ngati Apa and Rangitane) retained a non-exclusive range of customary rights extending to Kawatiri on the west coast, and the Waiau-toa (Clarence) River on the east coast. These rights were based on the tuku of Tutepourangi, ancestral connections and unbroken occupation. Spurious claims that the Kurahaupo Iwi were ‘slaves’ lacking rights within their rohe were at last conclusively rejected. The third volume of the Tribunal’s report goes even further in upholding the rights and interests of the Iwi, and will greatly assist in bringing the current negotiations to a satisfactory conclusion. The Tribunal concludes that the many serious Treaty breaches it has identified require ‘large and culturally appropriate redress’.

According to the Tribunal the Crown wrongfully asserted a Ngati Toa pre-eminence, and purchased the land from that Iwi in a series of North Island transactions commencing in 1847. These sales were then presented to Rangitane and Ngati Kuia in 1856 as a fait accompli, with the result that the following transactions were not valid or freely conducted sales. The Crown’s improper purchasing strategies led to ‘the triumph of expedience over Treaty rights’, and were littered with Treaty breaches. Ngati Kuia and Rangitane were short-changed in the matter of payment and reserves. The sums they received were derisory, and their reserves were wholly inadequate for their present and future needs. Rangitane will be especially pleased to see that their claims to the twenty square mile reserve at the Wairau have been vindicated.

Ngati Apa were totally ignored at this time. It was not until 1860 that they achieved a measure of recognition in the Arahura purchase. But even this belated acknowledgement was limited, and they too had no real option but to acquiesce in a sale process which did not recognise them separately. As a result they also received very little in the way of payment and minimal reserves. The Crown’s failure to investigate and protect Ngati Apa interests before 1860 is a serious breach of the Treaty, as is the Crown’s inadequate recognition of Ngati Apa rights in the 1860 Arahura purchase.

The Tribunal has found that the Kurahaupo Iwi were not only denied land sufficient for the maintenance of their customary economy and resource use rights, but were also unable to engage in modern farming practices. Their options were thus reduced to bare subsistence, and they were excluded from any real involvement in the developing economy of the region. This failure was avoidable, the Tribunal notes, and was a serious breach of the Treaty. Later Crown efforts to ameliorate the position of the Kurahaupo tribes through ‘landless natives’ reserves were totally inadequate. Such an outcome, the Tribunal concludes, was ‘a tragic negation of the promise held out by the Treaty’.

The Tribunal’s findings on the Native Land Court in Te Tau Ihu provides further important and far-reaching vindication of Kurahaupo claims. The Tribunal has found that the Native Land Court was an inappropriate vehicle for determining the nature and extent of Kurahaupo customary rights in a number of cases including Taitapu, Whakapuaka, Rangitoto, Waikawa and Nelson Tenths. Among other things the Court overstated rights arising from raupatu, and narrowly applied the ‘1840 rule’ in a manner which seriously prejudiced the Kurahaupo Iwi and distorted the true customary position. Rather then ‘freezing’ the position as at 1840, the Court should have recognised valid customary Kurahaupo claims based on the tuku of Tutepourangi, ancestry and occupation, as well as the re-emergence of Kurahaupo rights after 1840. The Tribunal concludes that had a more appropriate body been set up to determine title to these lands – involving Maori themselves and governed by tikanga – Kurahaupo rights would indeed have been identified and recognised. In all cases the Tribunal finds that the non-recognition of Kurahaupo interests by the Court is not evidence of the absence of customary rights, but rather evidence of the glaring failings of the Native Land Court system itself.

The Tribunal is careful to point out that the Native Land Court was not part of the Crown, and that the Tribunal itself is not an appellate court which can overturn these decisions – as wrong as they were. However, the Tribunal has found that it is incumbent on the Crown to remedy the undoubted prejudice to Kurahaupo arising from these incorrect Land Court decisions.

These findings in relation to the Native Land Court not only confirm that the customary rights of the Kurahaupo Iwi were wrongly ignored by the Court in a manner which exacerbated the prejudice resulting from earlier Crown purchases, but also means that the current relationship between Crown agencies (such as the Department of Conservation) and Te Tau Ihu Iwi based on nineteenth century Native Land Court decisions will need to be revisited.

To read the Third Report of the Waitangi Tribunal in full, please click here.