Crown Process, Settlement Process and Settlement Bill

Crown Process

The Treaty Settlement Process in New Zealand

Settlement Process

Settlement Bill

This bill gives effect to the deed of settlement signed on 18 December 2015 in which the Crown and Ngatikahu ki Whangaroa agreed to the final settlement of the historical Treaty of Waitangi claims of Ngatikahu ki Whangaroa.

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  • Referred to Māori Affairs Committee for Commentary

Ngatikahu ki Whangaroa Claims Settlement Bill
Government Bill
As reported from the Māori Affairs Committee
Commentary

Recommendation

The Māori Affairs Committee has examined the Ngatikahu ki Whangaroa Claims Settlement Bill and recommends that it be passed with the amendments shown.

Introduction

The Ngatikahu ki Whangaroa Claims Settlement Bill seeks to give effect to the Deed of Settlement signed by the Crown and Ngatikahu ki Whangaroa agreeing to the final settlement of all the outstanding historical Treaty of Waitangi claims of Ngatikahu ki Whangaroa. It also records the acknowledgements and apology the Crown offered to Ngatikahu ki Whangaroa.

Ngatikahu ki Whangaroa’s historical claims relate mainly to pre-Treaty land transactions, Crown purchasing, the Crown’s surplus lands policy, its failure to protect Ngatikahu ki Whangaroa reserves, the taking of land for public works, the operation and impact of native land laws, and landlessness.

Part 1 of the bill includes a summary of the historical account, acknowledgements, and the Crown’s acknowledgements and apology. Part 2 deals with cultural redress.

In the Deed of Settlement, the Crown agreed to provide certain redress in settlement of all of Ngatikahu ki Whangaroa’s historical Treaty claims. The bill includes only those parts of the redress in the settlement that require legislative authority.

This commentary covers the settlement issues we considered and the amendments that we recommend to the bill, most of which are minor and technical.

Background information about Ngatikahu ki Whangaroa

Ngatikahu ki Whangaroa is a claimant group of about 3,000 people whose area of interest lies in the Far North between the Mangonui Harbour and the Whangaroa Harbour.

Ngatikahu ki Whangaroa’s area of interest overlaps with Ngāti Kahu (north-west) and Ngāpuhi (south-east).

On 20 September 2001, the Crown recognised the mandate of the Ngatikahu ki Whangaroa Trust Board to represent Ngatikahu ki Whangaroa in Treaty settlement negotiations with the Crown.

The beneficiaries for Ngatikahu ki Whangaroa are defined as the descendants of Kahukuraariki or any other recognised ancestor of the group defined in Part 1, clause 13 of the bill. This definition was jointly defined by the Crown and iwi.

We are aware of some concern that this definition might undermine customary ownership. We were advised that no submissions in the mandate process questioned the validity of Kahukuraariki as the ancestor from whom Ngatikahu ki Whangaroa descend.
We are satisfied that the bill would not extinguish customary ownership rights.

Ratification process and participation

As part of our consideration of the bill, we requested information about the ratification process, and whether this was sufficient to support settlement. The level of participation in the ratification process was 30.9 percent. The process lasted seven weeks. Four ratification hui were held, and voting was open for 10 weeks and five days.

Of the 2,426 voting packs sent to registered adult members of Ngatikahu ki Whangaroa, 750 votes were received. Although we are concerned that this is low, we understand that it is a “mid-range” level of participation.

The Crown considered that the ratification process was open and transparent, with efforts made to thoroughly advertise the ratification hui, disseminate voting packs widely, and reschedule hui to suit registered voting members.

Settlement boundaries and the inclusion of Mangawhero Marae, Otangaroa

We heard that there was disagreement about whether Mangawhero Marae, Otangaroa, should be included in the settlement boundary. The Deed of Mandate for the trust board was submitted in 1999 and published in 2000. After publication, the trust board received objections, including whether Mangawhero Marae, Otangaroa, should be included in Ngatikahu ki Whangaroa’s mandate.

The Crown did not consider the boundary issue at Otangaroa an obstacle to negotiations because the Crown recognises general areas of interest, rather than a precise boundary, during the settlement process. The area of interest is used to help define the claimant group, and it is common for areas of interest to overlap.

Two hui were held to determine whether those affiliated to Mangawhero Marae are descended from Kahukuraariki and should be represented by the trust board. The Crown was satisfied from the hui reports that the majority of the Ngatikahu ki Whangaroa people considered that Mangawhero Marae should be represented by the trust board.

This conclusion was based on the view of the Mangawhero people that their marae was a Ngatikahu ki Whangaroa marae, the significant support of the marae’s inclusion expressed at both hui, and confirmation by Te Rūnanga-a-Iwi o Ngāti Kahu that it does not represent Mangawhero Marae.

Ownership of Stony Creek Station

Stony Creek Assets are currently Crown property and are the key feature of redress in the Ngatikahu ki Whangaroa settlement package.

We heard that Stony Creek Station has been illegally occupied by some members of Ngāti Aukiwa since late 2007.

The occupation undermines the mandate of the trust board, and the relationship between the occupiers and the members of the trust board is strained. Stony Creek Station’s assets have devalued because the Crown has not been able to carry out standard maintenance on the property. We note that the total financial redress is in lieu of the Crown’s obligation to maintain Stony Creek Assets in substantially the same condition as they were in 2007 at the time the Agreement in Principle was signed.

Several submitters argued that the Stony Creek Station should belong to Ngāti Aukiwa as a distinct tribal entity from Ngatikahu ki Whangaroa. However, Ngatikahu ki Whangaroa said that most hapū and marae have associations with the Stony Creek Station and the Thomson and Clarke blocks, particularly Taemaro Marae, Waimahana Marae, and Mangatowai Marae, and Ngāti Roha, Ngāti Aukiwa, and Ngāti Rua. The Ngatikahu ki Whangaroa Post-Settlement Governance Entity (PSGE) has also told us that most members of Ngatikahu ki Whangaroa are also members of Ngāti Aukiwa.

We understand that repeated efforts have been made since 2007 to resolve the occupation of Stony Creek Station and unite Ngāti Aukiwa with Ngatikahu ki Whangaroa. This led to several refinements to the Agreement in Principle and culminated in a whakapapa wānanga in January 2015. Although the outcome of the wānanga was that Stony Creek Station should belong to all Ngatikahu ki Whangaroa based on whakapapa, none of the Ngāti Aukiwa occupiers attended the wānanga.

After the wānanga, the Crown decided that the Māori Land Court was not an appropriate avenue to determine ownership. In an attempt to reach a solution, the Stony Creek Station will be vested in the PSGE with the proviso that the PSGE be responsible for finalising ownership.

The PSGE trust deed includes conditions requiring a post-settlement decision about the final ownership of Stony Creek Station. The process allows all adult registered members of Ngatikahu ki Whangaroa to determine the final ownership. If the PSGE does not comply with these conditions within four years of the settlement date, any member of the beneficiary group can apply to the High Court to have them enforced.

We note the Waimahana Marae has now provided representatives to the trust board so that it can have more direct involvement in the settlement process.

Overlapping claims with Ngāti Kahu and Ngāpuhi

We received concerns that the bill would extinguish other hapū claims and relationships with the land, particularly with the maunga Whakaangi and the Whangaroa Harbour.

The Whakaangi Scenic Reserve is adjacent to Whakaangi maunga, and the maunga is privately owned. There is an overlay classification on the Whakaangi Scenic Reserve that recognises a Ngatikahu ki Whangaroa relationship. We note that the Department of Conservation is obliged to discuss its management with all iwi who have a customary relationship with the site.

We were advised that the bill would not affect any claimants who do not fall within the claimant definition of Ngatikahu ki Whangaroa. It settles only the historical claims of the descendants of Kahukuraariki and does not include any redress relating to the Whangaroa Harbour.

The bill covers claims that would be partially settled to the extent that they relate to Ngatikahu ki Whangaroa, but these claims can be fully settled through other settlements under clauses 14 and 15(1) of the bill.

Crown acknowledgements and apology

It was suggested that the Crown should make acknowledgements to individual hapū to properly reflect the consequences for the people. We note that the Crown’s approach is generally to settle with large natural groups, so the acknowledgements and apology are usually directed at the whole group rather than individual hapū, unless a special request is made. In this case, no such request was received.

The Crown apology is based on the historical account agreed by the trust board and the Crown. Several submissions expressed concern about the content of the historical account, which contains a detailed account of the history leading up to the settlement negotiations. However, we note that the historical account is just one contribution to the understanding of Ngatikahu ki Whangaroa’s past. The Crown’s apology and acknowledgements show that the Crown accepts its responsibility for breaches of the Treaty of Waitangi.

We acknowledge that some Ngāti Aukiwa assert that they did not cede sovereignty and are the rightful owners of the lands and natural resources in their traditional boundaries. However, as already noted, it is the Crown’s preference to settle with large natural groups of tribal interests, rather than individual hapū or whānau within an iwi.

Suggested amendments relating to the overlay classification in Deed Document Schedule and the Conservation Protocol

It was submitted that clauses 1.3 and 3 of the Deed of Settlement Schedule be amended. However, we were advised that the current wording in clause 1.3 has a higher legal status than the suggested change. The suggested amendment to clause 3 is not necessary as section 4 of the Conservation Act requires the Act to be interpreted and administered to give effect to the principles of the Treaty of Waitangi.

It was also suggested that an “Accidental Discovery Protocol” be developed for kōiwi (human remains) and that Ngatikahu ki Whangaroa be engaged in developing an indigenous species management programme. However, we are aware that a protocol has already been agreed in the Deed of Settlement. Part of this protocol includes regular meetings between the Department of Conservation and Ngatikahu ki Whangaroa.

This would be an appropriate forum for discussing such issues as discovery of kōiwi and indigenous species management programmes. The current bill allows for these processes to be developed and implemented after settlement.

Disposal of Reserve Land
We were asked to recommend giving iwi a first right of refusal on any land the Crown wishes to dispose of. The committee recognises that the process for the disposal of Crown land is already covered by other legislation. We looked at a possible amendment arising from clause 4.1.2 of the Deed Document Schedule of the Deed of Settlement, which is the disposal clause referred to in the Deed of Recognition for the Akatārere Historic Reserve.

We note that the Deed of Recognition referred to in the submission applies to an historic reserve that is subject to the Reserves Act 1977. The Act sets out the disposal process for reserve land.

Technical changes to land descriptions
As a result of surveys completed for a number of the cultural redress properties, we recommend several technical amendments to Schedule 3 of the bill. These amendments will update the legal descriptions for those properties.

Committee process
The Ngatikahu ki Whangaroa Claims Settlement Bill was referred to the committee on 13 April 2016. The closing date for submissions was 27 May 2016. We received and considered 19 submissions from interested groups and individuals. We heard oral evidence from 11 submitters at hearings in Waitangi and Wellington.

We received advice from the Office of Treaty Settlements.

Committee membership
Tutehounuku Korako (Chairperson)
Hon Chester Borrows
Marama Davidson
Kelvin Davis
Marama Fox
Joanne Hayes
Hon Nanaia Mahut
Pita Paraone