On Monday 4th February the Tribunal released the Ngāti Kahu Remedies Report, and the negotiations team have now done a close reading of the reasoning and commentary behind its recommendations.
The overwhelming flavour of the report are the suggestions of pragmatism and compromise which the Tribunal says guided the Crown, the other iwi and now itself in its non-binding recommendations.
Following are the main points identified thus far, with a summary initial analysis of each:
RECOMMENDATIONS ARE NON-BINDING
The first point of note is that all the Tribunal's recommendations are non-binding which means the Crown can ignore them. This is very disappointing but totally understandable. Since 1997 the Tribunal has lived with the constant threat that if it ever issues binding orders, the Crown will change the law to remove its powers. This threat is part of the literature and was covered by Paul Hamer in his article 'A quarter-century of the Waitangi Tribunal: Responding to the challenge' which appears in the book, ‘The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi.’
The threat itself is a clear breach of the rule of law and seriously undermines the Tribunal’s credibility. Nevertheless the Tribunal generally produces useful reports. It remains to be seen how useful this report will be.
PARTIAL SETTLEMENT IS POSSIBLE
In a major departure from past reports, the Tribunal says in this report that, while a complete settlement between Ngāti Kahu and the Crown is preferable, it recommends 2 options for settlement. One which is based on the pre 1865 breaches the Tribunal found to be well founded in its 1997 report. These recommendations are in line with Ngāti Kahu’s deed of partial settlement which the Crown had earlier rejected. The second is based on a full and final settlement of all Ngati Kahu treaty claims (both pre and post 1865) which effectively adds 10% to the earlier settlement proposal.
LAND TAKEN - LAND RETURNED
This Tribunal was able to draw on its predecessor's 1997 Muriwhenua Report in which it had found that 66,439.878ha (70% of Ngāti Kahu's lands in the remedies area) had been wrongly claimed by the Crown and were in fact still Ngāti Kahu's. A further 25% of Ngāti Kahu's lands in that area were stolen after 1865.
Now, this Tribunal has made specific recommendations over approximately 24,500ha (37%) of those lands in the remedies area, and has indicated that almost 12,600ha is exclusively Ngāti Kahu's and should be returned to Ngāti Kahu, while the balance should be shared with one or more other iwi. Interestingly, a number of these balance lands are not included in other Te Hiku o Te Ika iwi deeds of settlement. So, once again, they stand to benefit from Ngāti Kahu's work.
The Tribunal has also provided very detailed lists of each and every block of land it has made recommendations over. These lists provide clear descriptions for each hapū of which parts of their lands the Tribunal has told the government it is to now relinquish. It includes most, but not all, of our major waahi tapu. We note that each hapū can now repossess their lands in the knowledge that they have two Tribunal reports confirming that those specific lands are theirs.
Interestingly these lists were originally provided to the Tribunal by the Office of Treaty Settlements (OTS) when the Tribunal picked up that there were major discrepancies between what they claimed they had offered Ngāti Kahu in negotiations, and what they had actually offered – which was a lot less than what is now in these lists.
However Ngāti Kahu cannot trust that these Crown lists include all the land the Crown has stolen from Ngāti Kahu. So our team are carefully comparing these lists with those contained in the Yellow Book (the Ngāti Kahu Settlement Package) which was compiled by each Ngāti Kahu hapū from 1997 onwards and constitutes their instructions to Ngāti Kahu's negotiations team.
Additionally it's clear that the OTS lists used by the Tribunal do not include land for every single hapū. Although they appear to be very similar to those in the Ngāti Kahu draft deed of partial settlement (DoPS), the team have already picked up the following lands that are in the Ngāti Kahu DoPS but are not in these OTS lists:
1. Whakaangi (for which Ngāti Kahu agreed with Ngāti Aukiwa hapū of Whangaroa to wait till they were ready)
2. Most of Ōtangaroa forest (Ngāti Kahu included the entire forest in the DoPS because some of Whangaroa had said they didn't want it - that has now changed).
3. Takahue forest
4. Metservice (Ōkahu Rd)
5. Kaitāia pound
6. Takahue cemetery
7. Takahue training camp (the present day marae site).
There may be more.
We have also yet to complete a check for lands that have been added into the OTS lists that aren't in the Ngāti Kahu DoPS, and we're still working on that as well.
Additionally the Tribunal says it deliberately left out some of the properties on the OTS lists because they were outside the remedies area it was covering. But it notes that the Crown can still return them to Ngāti Kahu.
LANDCORP AND FOREST LANDS
Regarding Rangiputa and Kohumaru farms, the Tribunal has recommended they be returned to Ngāti Kahu to hold for all the hapū, rather than to Ngāti Tara and Te Paatu. Likewise it has recommended that the Kohumaru blocks within the Ōtangaroa forest be returned to Ngāti Kahu, rather than kept intact as part of the Ōtangaroa forest for the Whangaroa claimants, who will be able to still claim the larger remaining blocks.
STATUTORY BOARD AND RIGHTS OF FIRST REFUSAL
The Tribunal also recommends that the Ngāti Kahu Statutory Board over those lands administered by DoC be set up, and that Ngāti Kahu be given exclusive Rights of First Refusal for 172 years over almost all those lands that aren't returned to it immediately by the Crown.
PARTIAL SETTMENT NOT DEPENDENT ON CROWN TERMS
And in another departure from past reports, the Tribunal also suggests a partial settlement should still be completed, even if Ngāti Kahu and the Crown can't agree on an 'historical account', Crown 'acknowledgement' of Treaty breaches, and Crown 'apology'.
This is important because these are Crown terms which the Crown has used in the past to force claimants to cede their rangatiratanga as a condition of settlement; something which has always been a deal breaker for Ngāti Kahu.
The Tribunal picked up on the Ngāti Kahu evidence to it that 'acknowledgments', 'historical accounts' and 'apologies' are totally meaningless if not preceded by a total return of all Ngāti Kahu land without encumbrances and laws that prevent it ever being stolen again – another reason why Ngāti Kahu insisted that settlement could only be partial.
NO COMPENSATION AWARDED
At the same time, the Tribunal has refused to recommend any compensation in this report. However Ngāti Kahu have consistently focused on land rather than money, and this is not a deal breaker. Additionally the lack of compensation has contributed to the Tribunal’s recommendation that any settlement could only be partial.
CROWN RANSOM REDUCED
To accommodate the Crown's ransom demands for lands it relinquishes in any settlement, the Tribunal recommends that it make $20.736m cash available to Ngāti Kahu to pay that ransom. That’s 10% less than the $23.304m offered in 2008. But again this is to accommodate the partial nature of any settlement. Additionally, as the Tribunal makes clear in its recommendations, the amount of ransom to be paid would also be significantly reduced.
Regarding the ransom for the Rangiputa block, the Tribunal has specified how it should be valued and takes it down from the $4.1m Ngāti Kahu agreed to pay in 2008, to either 3.6 million (a 10% reduction) – or $1.8m if Ngāti Kahu agree to make it inalienable in perpetuity. Recommending that land be made inalienable in perpetuity is another first from the Tribunal, and is another point which is in line with the Ngāti Kahu DoPS. However, the Tribunal leaves Kohumaru with a ransom of $0.68m.
Regarding the forest lands, the Tribunal has identified the value for this component of any Ngāti Kahu settlement as being $1.665m, but has recommended that the ransom monies for these be less than that because of the very small and unfair amount of forest being relinquished to Ngāti Kahu. It also recommends payment of 20% of accumulated rentals be made to Ngāti Kahu, being $2.27 million from Aupouri State Forest and $0.38 million from the Kohumaru blocks within Ōtangaroa State Forest.
Regarding the rest of the Ngāti Kahu lands in the lists, the Tribunal makes no recommendations on the ransom monies for them.
Towards the end of its recommendations the Tribunal includes one for a "cultural redress payment" of between $380,000 and $2.4m to Ngāti Kahu. It seems to have premised this on the fact that in their deeds of settlements Te Aupōuri got $380k, Te Rarawa got $530k and Ngāi Takoto got $2.4m.
It also recommends that any redress offered for Te Oneroa a Tohe also include a one-off payment of $137,500 to Ngati Kahu, and if Ngati Kahu and Ngati Kuri agree to join the Board then the $400k set up contribution from the Crown should be increased.
Regarding the Crown's Social Accord, the Tribunal recommends that a one-off payment of $812k be made to Ngati Kahu to be part of that.
And finally, the Tribunal recommends that the Crown "maintain flexibility" in developing cultural redress offered to Ngati Kahu.
In conclusion, the Ngāti Kahu Remedies Report’ will be further analysed, considered and discussed by Te Runanga-ā-Iwi o Ngāti Kahu at their next hui-a-marama on Saturday 23 February 2012, and they will respond after that.
In the meantime the report is now available to you on the links below which have been separated to accommodate the size of the document: