Hakatikangia ngā mahi kino – remedying the atrocities
– Ngāti Kahu’s recent experiences of Crown representatives
Ever since the breaches of Te Tiriti started,
Ngāti Kahu have been trying to find
remedies. The systematic bulldozing of our rights and theft of our lands and resources
made that extremely difficult. Over the generations a number of approaches have been
tried. Some of these have been outlined in the
hapū korero (chapter 3) and in the
historical account (chapter 6). This chapter focusses on the strategies adopted over
the past three decades since the Waitangi Tribunal was established.
The Waitangi Tribunal
In 1975 the Government created the Waitangi Tribunal. Its primary purpose was to
defuse the rising tide of Māori anger and protest over the numerous breaches of Te
Tiriti o Waitangi caused by the on-going lawlessness and criminal activities of
representatives of the Crown. The Tribunal is a permanent commission of inquiry
whose function is to enquire into and make recommendations on claims laid by Māori
against the Crown that they have been prejudicially affected by government legislation,
policy, action or inaction that is inconsistent with the treaty.
Although it is a judicial
body, the Tribunal is a Government-controlled body. The Government appoints all its
members, determines what resourcing it may have,
has progressively reduced its
powers and since 1997 and has threatened to reduce its powers further if it uses them
to make recommendations that are binding on the Crown.
The first claims in Ngāti Kahu’s rohe were lodged with the Waitangi Tribunal by
McCully Matiu (Wai 17) and Reremoana Rutene (Wai 16) in 1984. They were the first
claims to be lodged from Te Hiku o Te Ika. In 1986, Ngāti Kahu’s hapū leaders of that
time agreed to allow their claims to be consolidated into WAI 45, along with those of
Ngāti Kurī, Te Aupōuri, Ngāi Takoto and Te Rarawa.
Treaty of Waitangi Act 1975.
The Tribunal has been under-resourced for almost all of the time it has been operational. Hamer,
2004, ‘A Quarter Century of the Waitangi Tribunal’, p.10.
Hamer, 2004, ‘A Quarter Century of the Waitangi Tribunal’, footnote 22. In fact, the Tribunal’s powers
have been reduced considerably since the 1980s. Its power to make recommendations over local
government and private lands and over fisheries was removed in 1992. Its power to register historical
claims was removed in 2008. Its powers to consider any claim is removed once settlement of a claim
has been legislated (the Office of Treaty Settlements website
settlements legislated between 1992 and 2015. Accessed 12 December 2015).
However, the claims were severed soon after they were lodged in response to the
Government arbitrarily moving to create property rights in all fisheries through a
fisheries quota management system. That resulted in the fisheries portion of the WAI
45 claim being given urgency. The Tribunal found that all our sea fisheries still
belonged to us. But Ngāti Kahu was excluded from the negotiations to settle that claim
and has never accepted the 1992 Sealords deal.
That deal purported to extinguish
all our rights to our fisheries in exchange for a half share in the Sealord fishing
company, some fish quota, a Māori fisheries commission and reducing our customary
fishing rights to regulations determined by agents of the Crown. Ngāti Kahu
determined then that our land claims would not be allowed to be similarly high-jacked
and that we would make sure that we kept control over them.
Hearings into our land
claims did not commence until 1990. What followed were thirteen long and arduous
weeks of hearings held over five years, from 1990 to 1994.
The Government fought us every step of the way through the hearings but in the end
the evidence against them was too overwhelming. And the Tribunal was clear that the
severe damage that had been done needed to be addressed urgently and that there
should be no further delay in alleviating the conditions of deprivation, poverty and
marginalization. Once the Tribunal understood that tikanga was the only law that
applied in this country prior to 1840 and that after 1840 tikanga rather than the legal
fictions invented by Pākehā settlers
still applied for us and our lands, we knew they
would uphold our claims. We had made it clear that we had never ceded any of our
territories and the Tribunal understood and accepted that. And so, while we waited for
their report, we started compiling a settlement package to address each and every
claim of the many whānau and hapū of Ngāti Kahu. Implementation of the settlement
package would remedy the atrocities committed by the Government
Kahu and allow reconciliation to take place. The background to and the content of that
package is outlined later in this chapter.
2012. ‘Fisheries Settlement: The Sea I Never Gave’ in Janine Hayward and Nicola
Wheen (eds) Treaty of Waitangi Settlements. Wellington, Bridget Williams Book, p.118.
Margaret Mutu, 2005, “Recovering Fagin’s ill-gotten gains: Settling Ngāti Kahu’s Treaty of Waitangi claims
against the Crown” in Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited:
Perspectives on the Treaty of Waitangi. Melbourne, Australia, Oxford University Press, p.201.
Deloria, Behind the Broken Treaties
(see footnote ?? in chapter 6); Morris ‘Vine Deloria, Jr., and the
Development of a Decoloni
sing Critique’; Mutu ‘Unravelling Colonial Weaving’; Waitangi Tribunal He
Whakaputanga me Te Tiriti; Muriwhenua Land Report, p 124.
It took the Tribunal three years after the closing hearings to release its report.
Sometime before or during closing submissions a
senior Pākehā historian interfered,
telling the head claimant for Ngāti Kurī, the Honourable Matiu Rata, that he considered
that the Tribunal would not uphold our claims. It was extremely unfortunate for all the
iwi of Te Hiku o Te Ika that Matiu chose to
believe the Pākehā and not to talk to the
other four head claimants before unilaterally instructing the Tribunal on the last day of
closing hearings not to report on our claims. We learnt through the newspapers shortly
after that he was talking to a government Minister about settling all the Muriwhenua
claims, including Ngāti Kahu’s, and that he was publicly vilifying the claimant
researchers for having wasted five years of the claimants’ time.
None of us knew why he did that until several years later when the historian revealed
what he had done in the New Zealand Herald
, the country’s largest newspaper.
Neither Matiu nor the historian had attended the hearings where our evidence was
presented and so they had not heard the Tribunal questioning our kaumātua and kuia,
our historians, anthropologists and a linguist at great length. Neither had they been
there to hear the Tribunal question the Government
’s historians who, on several
occasions, simply could not answer their questions. Yet with the confidence bred of
the historian’s standing in the Pākehā world, he presumed to tell Matiu that we didn’t
know what we were talking about. And Matiu believed him because the man was a
professor of history.
That professor could not have been more wrong. Although the Tribunal was set up by
the Government who also appoints all its members and controls what it does, its job
is to inquire into and to find out the facts relating to the claims. Unlike earlier inquiries,
such as the Myers commission of the 1940s,
the Tribunal chose to listen to both
Māori and the Government instead of listening only to the Government. What Māori
garet Mutu, 2009, ‘The Role of History and Oral Traditions in the Recovery of Fagin’s Ill-gotten
Gains: Settling Ngāti Kahu’s Claims against the Crown’ in Te Pouhere Kōrero Journal: Māori History,
Māori People, pp. 32-3.
Bill Oliver, ‘Waitangi Tribunal Relied on an Insecure Argument’ in New Zealand Herald 16 October
1997, p. A17. By the time this confession appeared the Hon. Matiu Rata had been tragically killed in a
car accident. As such, the damage that had been done and the divisions it caused amongst the iwi of
Te Hiku o Te Ika could not be healed.
Mutu, ‘The Role of History and Oral Traditions’, pp.32-3.
See section 18.104.22.168.
told the Tribunal was far more consistent with the facts than the Government
After all, as we have already noted, the Government
’s stories were the myths,
fantasies and legal fictions
they had created to help them achieve their aspirations
of depriving us of everything that is ours.
They held little weight before the Tribunal
in the 1990s.
Some considerable time after the 1994 closing hearings, the other head
claimants advised the Tribunal to ignore Matiu’s directive and to complete their
Waitangi Tribunal Muriwhenua Land Report 1997
The long awaited Muriwhenua Land Report was finally released in 1997. It
upheld all of Ngāti Kahu’s land claims to 1865 and found that the
Government had breached Te Tiriti grievously, thereby seriously prejudicing Ngāti
Kahu. The report detailed the numerous illegitimate and illegal policies and actions
used by Government agents to steal over 150,000 hectares (370
,000 acres) of Ngāti
Kahu’s lands and to drive Ngāti Kahu into poverty and deprivation. The Tribunal
recommended that the Government make immediate redress for its breaches, starting
with a substantial transfer of benefits and properties to the claimants.
It did not
address land claims relating to the post-1865 period and the many aspects of our
claims relating to matters other than our lands such as our language, culture,
intellectual property, mana and tino rangatiratanga, seas, waters, air and our other
The report was seen at the time, by Ngāti Kahu, as a resounding vindication of the
history that they had painstakingly compiled and presented to the Tribunal in respect
of our lands. However, right up until the finalisation of our deed of partial settlement
more than 18 years later, the Government has never acknowledged, let alone
accepted, the findings of its own Tribunal.
Nor has it paid a cent in restitution or
Colonising Myths, Māori Realities, pp.133-8.
The Tribunal came under threat from successive governments as a result of its findings and
recommendations of the 1980s and 1990s (Hamer, ‘A Quarter-century of the Waitangi Tribunal’, p.7)
and as a result started to revert back to the Crown bias that characterised the Myers Commission.
Mutu, ‘The Role of History and Oral Traditions’, p.33.
Muriwhenua Land Report, p.404.
See, for example, the evidence provided by M.Hickey and P.Snedden for the Government dated 22
August 2012 in Wai 45, Ngāti Kahu remedies hearing.
compensation or relinquished an
y assets to Ngāti Kahu. Thus the prejudice has
continued to compound.
Ngāti Kahu Settlement Package (Yellow Book 2000)
Two years before that report appeared we started compiling Ngāti Kahu’s settlement
package. The research team visited each marae and whānau wherever they were to
explain the claims and to ask what land they needed the Government to relinquish and
what redress they needed in order to settle their claims. That included services our
whānau and hapū need, services that are provided to non-Māori living in our territories
but not to us. It also included the tools needed to rebuild our shattered economy, and
the protection of our natural resources in our territories, our language, our culture, our
heritage, our intellectual property, our mana, our tino rangatiratanga and our human
and treaty rights. The package is based on living standards enjoyed by the non-
community living in our rohe in Kaitāia, Mangōnui, the ever-expanding coastal
settlements at Rangiputa, Whatuwhiwhi, Tokerau beach, Taipā, Waipapa (Cable Bay),
Koekoeā (Coopers beach), Waitetoki (Hīhī) and the surrounding districts. It forms the
basis of a twenty five year strategic plan for the social, economic and spiritual recovery
of Ngāti Kahu.
After the Tribunal’s report was released, Te Rūnanga-a-Iwi o Ngāti Kahu selected and
mandated our negotiators and appointed a team to work with us. We then briefed
whānau and hapū on the Tribunal’s findings in respect of their specific lands that had
been stolen as described in chapter 6. Numerous hui took place and individual
kaumātua and kuia who held the oral histories of the whānau, hapū and iwi collectively
spent thousands of hours passing on their knowledge about specific lands and whānau
and hapū histories. It took five years to compile our settlement package and it covered
far more than the Crown forest and State Owned Enterprises lands in our territories.
As we were drawing up this package, Ngāti Kahu assumed, wrongly as we discovered
several years later, that the Government would adhere to the Tribunal’s
recommendation that there be “the transfer of substantial property”.
Muriwhenua Land Report, p.404.
Several drafts of the package were checked and corrected over that time and it
continues to be added to as whānau discover more and more about their lands and
histories. Despite the Government
’s refusal to adhere to the Tribunal’s
recommendations this settlement package remains to this day, the only package that
Ngāti Kahu have agreed will fully and finally settle all our historical claims. It is the set
of instructions the whānau and hapū gave to the negotiators they appointed to settle
their claims. It became known as our Yellow Book because the covers of the booklet
By 2000 Ngāti Kahu resolved that the package was sufficiently complete for it to be
handed to the Government
. In a hui held in the Kaitāia Community Centre in
September 2000, it was formally handed over to the Minister of Treaty Negotiations.
The instructions set out in Ngāti Kahu’s Yellow Book include
the aim of any settlement of Ngāti Kahu’s claims;
the key elements of the settlement: the non-negotiable and the negotiable
aspects including specific lands to be relinquished and the numerous other
areas where action is required to restore Ngāti Kahu’s social and economic
the approved settlement process;
the claims that this settlement will address.
The 2000 edition of the Yellow Book reflected the best information available at that
time. It has been significantly revised in this chapter to reflect the best information
available in 2015.
7.3.1 Aim of settlement
The aim of any settlement of our land claims is to right the wrongs of the past and
remove the prejudice by restoring justice, along with political, social, economic and
being and prosperity to the whānau and hapū who comprise the iwi of
Ngāti Kahu. In other words, kia pūmau tonu te mana me te tino rangatiratanga o ngā
whānau, o ngā hapū, o te iwi o Ngāti Kahu. It also aims to restore the relationship
between Ngāti Kahu and the Crown to that set out in Te Tiriti o Waitangi and, as a
result, to achieve reconciliation.
As the Waitangi Tribunal demonstrated unequivoca
lly, the prejudice caused to Ngāti
Kahu was extensive. Removing the prejudice necessitates a principled and
comprehensive approach that recognises the nature and extent of the damage at
whānau and hapū level and moves in a careful and deliberate manner to remove each
and every aspect of that prejudice. That cannot be achieved by taking the miserly
approach to settlements that all governments to date have chosen.
“settlements” to date can be characterised as focussing on
nominal recognition and then redefinition of certain Māori groups to meet
Pākehā legal and cultural requirements and norms;
making false assertions that Māori have ceded their sovereignty to the English
making further false assertions that the English Crown is sovereign and
exercises unilateral power and control over Māori;
transferring hardly any of the lands that were stolen;
providing very little money but then demanding it be used to pay for the lands;
retaining unilateral power and control and almost all of the stolen lands and
natural resources of
Māori in Government hands.
Rather than removing the prejudice and hence the grievance, this approach has
compounded it leaving the relationship between
Māori and the Crown precariously
unbalanced and Māori sliding even further down the socio-economic statistical scale.
The settlement designed by Ngāti Kahu avoids that outcome by addressing the claims
and grievances of each of our whānau and hapū and formulating a package that
restores the balance between Ngāti Kahu and the Crown.
7.3.2 Key elements of the settlement
Stavenhagen, Rodolfo, 2006, Report of the Special Rapporteur on the Situation of Human Rights and
Fundamental Freedoms of Indigenous People. Mission to New Zealand.
March 2006, Geneva, United Nations Human Rights Commission, paragraphs 32-3 and 95. Available
, accessed July 7, 2012, paragraphs 32-3 and 95.
Mutu, Recovering Fagin’s Ill-gotten Gains; Mutu, Ceding Mana, Rangatiratanga and Sovereignty.
See Tracey McIntosh and Malcolm Mulholland (eds), 2012.
Māori and Social Issues, Volume 1.
Wellington, Huia Publishers.
The key elements of the settlement can be divided into two parts: those matters that
are not negotiable for a full and final settlement of our historical claims to be achieved,
and those that can be negotiated.
The non-negotiable aspects are:
Crown Acknowledgement, Apology and Legislation to Restore the
This part of the settlement provides a full admission and acknowledgement by the
Crown of what
has been done to Ngāti Kahu in her name by her representatives and
servants, a full and unconditional apology and the enacting of legislation that restores
to Ngāti Kahu what was stolen and outlaws any and all further violations against Ngāti
The admission and acknowledgement details the unfair and dishonourable advantage
government agents representing the Crown took of Ngāti Kahu’s hospitality and
generosity. In doing so they destroyed the balance in the relationship established by
Te Tiriti o Waitangi by
denying, since 1840, that they have continuously breached and been in
violation of He Whakaputanga o te Rangatiratanga o Nu Tireni and Te Tiriti o
denying and then attempting to extinguish Ngāti Kahu’s mana and tino
rangatiratanga including denying and attempting to extinguish Ngāti Kahu’s
mana whenua and mana moana and hence ownership of all the lands, seas,
waterways, air, minerals, flora, fauna and all other natural resources in our
falsely claiming sovereignty and supremacy over Ngāti Kahu;
wrongfully and illegitimately attempting to remove our laws and to replace
them with English-style laws and legal fictions (including passing laws that
legalised the Government
’s theft of Ngāti Kahu’s lands and resources);
wrongly and illegally imposing the English language and culture on us and
waging war on our language, culture and intellectual property in order to
knowingly and wilfully perpetrating numerous crimes against Ngāti Kahu that
caused grievous and unending suffering and harm, and severely impaired our
economic, social, cultural and spiritual development.
Having made these acknowledgements the Crown, currently the Queen of England,
then provides a full and unconditional pu
blic apology to the whānau, hapū and iwi of
Ngāti Kahu. To ensure that the apology is genuine and meaningful the Government
then enacts legislation that fully and permanently restores to Ngāti Kahu all our lands,
resources, language, culture and intellectual property and social, economic and
spiritual well-being as provided in Article 38 of the United Nations Declaration on the
Rights of Indigenous Peoples (UNDRIP). The legislation will make provisions that
ensure that this restoration actually takes place in real and practical terms and is not
left to languish as empty legislative rhetoric.
The legislation will also outlaw any and
all violations of He Whakaputanga o te Rangatiratanga o Nu Tireni, Te Tiriti o Waitangi
āti Kahu’s human rights, in particular those aspects of the Resource
Management Act, the Public Works Act, the Conservation Act and the Marine and
Coastal Area Act that breach Te Tiriti o Waitangi. This is provided in Articles 1 and 37
of UNDRIP. It will also provide
full acknowledgement and recognition of Ngāti Kahu’s
mana and rangatiratanga and make mandatory provision for it to be upheld in the
manner set out in He Whakaputanga o Te Rangatiratanga o Nu Tireni and guaranteed
in Te Tiriti o Waitangi. In other words, rather than simply asserting that it will restore
its honour, the Crown will actually legislate to do so and then implement its own
Many provisions in current Treaty of Waitangi claims settlement legislation fall into this category.
Government servants unwilling to implement the legislation simply ignore it (See
Mei Chen’s 2012 ‘Post-
Settlement Implications for Māori-Crown Relations’, in Nicola Wheen & Janine Haywood’s edited book
Treaty of Waitangi Settlements). Other well known examples are the provisions in the Resource
Management Act and the Conservation Act which protect and uphold Māori culture and treaty rights. In
the Resource Management Act Section 6(e) concerns the recognition and provision of matters of national
importance including the relationship of Māori and their culture and traditions with their ancestral lands,
water, sites, wāhi tapu, and other taonga. Section 7(a) concerns the requirement to have particular regard
to kaitiakitanga. Section 8 concerns the requirement to take into account the principles of the Treaty of
Waitangi. In the Conservation Act section 4
the Department of Conservation is required to “give effect to
the principles of the Treaty of Waitangi”. In practice many of the Pākehā bodies who are responsible
for implementing these sections simply ignore them. See
Hirini Matunga, 2000, ‘Decolonising Planning:
The Treaty of Waitangi, the Environment and a Du
al Planning Tradition’ in A, Memon and H. Perkins (eds)
Environment, Planning and Management in New Zealand. Palmerston North, Dunmore Press.
Immediate relinquishment of lands claimed by the Government and
State Owned Enterprises
is part of the settlement provides for the government as the Crown’s representative
to immediately relinquish, at no monetary cost to Ngāti Kahu, all Ngāti Kahu lands
currently claimed by Crown agencies (some 45,000 hectares most of which are shared
with other iwi) or by any State Owned Enterprise (some 7,000 hectares most of which
is in Ngāti Kahu’s rohe) along with other lands designated as “private” as provided for
in Articles 26 and 28 of UNDRIP. This includes some 170 hectares (in 120 parcels)
on-sold by State Owned Enterprises which carry section 27B notations on their titles.
Map 29(??renumbering required): State-Owned Enterprise including 27B
memorialised lands in Ngāti Kahu’s rohe
It is crucially important that lands are relinquished to those they were stolen from. Past
and current governments have a bad habit of selling lands that they know belong to
particular hapū to other hapū and iwi who express loyalty and support for government
policies as part of their “settlements”.
In other words, the lands are being sold to the
wrong people. It is a habit designed to create divisions between closely related hapū
and on-going problems for them. An important part of the process of restoring the
Crown’s honour is weaning governments off this habit.
This part of the settlement takes place and is fully implemented before the settlement
is finalised. An indicative list of these lands is provided in table 7.1 below. All lands
relinquished and restored to Ngāti Kahu are inalienable in perpetuity so that the
whānau and hapū can never have their lands stolen again.
A section 27B memorial is a notation placed on the title of all State Owned Enterprises lands pursuant
to section 27B of the State-owned Enterprise Act 1986 giving legal notice to buyers of the land that they
purchase with the risk of the land being return
ed to Māori ownership on the binding recommendation of
the Waitangi Tribunal. (Waitangi Tribunal accessed at
For Ngāti Kahu the most recent example of this is the National-led government, after ascertaining
and recognising that Ngāti Kahu are mana whenua in their lands at Hukatere, Sweetwater, Kaitāia,
Tangonge, Ngākohu, Takahue, Kaimaumau and Rangiāniwaniwa, then selling the more than 12,000
hectares that the Crown was claiming there to neighbouring Te Rarawa, Ngāi Takoto, Te Aupōuri and
Ngāti Kurī. Ngāti Kahu was deliberately excluded from those lands because we do not support the
government’s treaty claims extinguishment policy and will not allow it to be imposed on us, and we will
never cede our mana and rangatiratanga to the government (see Statement of Claim of Timoti Flavell
to the High Court 17 April 2014; Mutu, ‘Ceding Mana, Rangatiratanga and Sovereignty’).