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The Tribunal did not revisit the general issues surrounding the closure of Napier Hospital. Neither did they consider the merits of restoring Napier Hospital to its former status. That was not a remedy the claimants were seeking.
—Deputy Chief Judge Isaac

The claim required the Tribunal to look at the historical context of hospital services in Napier from 1851 to 1940 and in particular the promise of a hospital to Ahuriri Māori in 1851. The Tribunal found that there was widespread and severe ill health, and the impact of introduced diseases, was a principle cause of the crisis of survival which saw a halving of the national Māori population during the half century after 1840. Ahuriri Māori did not escape, and in the 1930s their health status still lagged far behind that of Pakeha:

Whether the health status of Ahuriri Māori has improved or worsened over the last decade, the disparity in health status between Ahuriri Maori and non-Maori has shown little if any reduction and has remained markedly adverse. For many Ahuriri Maori the health outcomes remain poor. A significant proportion of the ill health suffered by Ahuriri Maori was preventable, and not prevented.

The Tribunal looked at a number of issues that arose during the 1980s and 1990s in its report. These issues included consultation with Ahuriri Māori on decisions affecting the status of Napier Hospital with decisions to regionalise hospital services in Hastings and downgrade or close Napier Hospital. Representation at decision making levels was another issue where the Crown was in breach of the principle of partnership with an imbalance of Māori representation on the Hawke’s Bay Hospital Board. Neither was there sufficient participation by Māori to sustain the Māori Health Unit’s objectives.

The Tribunal recommended a community health centre governed by trustees on behalf of Ahuriri Māori and bicultural in character, serving the special needs of Ahuriri Māori but open to all. It suggested that the centre should function as an integrated care organisation providing a variety of primary, public, promotional, educational, and rongoa Māori services.

The Tribunal recommended that the Crown take early steps to conclude an agreement in principle with the claimants on the concept, and that the Napier Hospital site should be transferred to the Residual Health Management Unit and the proceeds be vested in trust, for the purpose of endowering the community health centre.

On 24 June 2006, on a sunny windless day at Ngahutoitoi marae near Paeroa, the Tribunal presented the Hauraki Report to the assembled claimants. This ceremony, following presentation of the report to the Minister of Maori Affairs, was the culmination of some seven years work, covering 56 claims within the Hauraki Inquiry District.

The report is the largest in the Tribunal’s history and comprises three volumes, 1310 pages in all. The first claims were lodged by the Hauraki Maori Trust Board, constituted under act of parliament in 1988 to represent the 12 main iwi in the district’s complex tribal structure. Subsequently, many of the constituent iwi and hapu lodged separate claims.

The Tribunal appointed to hear the claims were Dame Augusta Wallace, presiding officer, John Kneebone, Professor Wharehuia Milroy, and Dame Evelyn Stokes. To our great regret and sorrow, Dame Evelyn died in August 2005, when the report to which she had made invaluable contributions was near completion. Hearings of claims and evidence began in September 1998 and concluded in November 2002. Assessing the evidence accumulated over four years of hearings, and reporting on the many claims, placed considerable demands on the Tribunal’s resources.

This is the first time that issues relating to gold mining, a central feature of the Hauraki claims, have been considered in depth by the Waitangi Tribunal. The claimants did not argue that gold, separately from land, is a traditional taonga, like pounamu. They owned the land, however, and everything in the land, and they controlled the access to it. The key questions were whether the Crown waited upon the owners’ full and free consent to open the land for mining, and whether the payments to owners for the right of access – the mining cessions or leases negotiated over Coromandel, Thames, Ohinemuri and elsewhere – were fair.

The Tribunal found that in the 1860s the Crown did generally negotiate openly and fairly and that the payments to owners of the annual miner’s rights fees and lease rentals for residential and business sites (rather than a royalty on gold actually extracted), were reasonable. This finding is related to the huge capital costs involved in quartz mining, which could be borne only by companies, as distinct from alluvial mining which can be done by individuals or small groups of miners.

However, the Tribunal found that undue pressure was brought to bear in some cases, especially in Ohinemuri, and that the Crown unilaterally reduced the scale of fees in the 1880s, when the mining industry was in difficulties. Even more seriously, the Crown systematically pursued the purchase of the freehold of land already subject to mining cessions. In 1940, a commision of inquiry found that Maori owners had not been fully advised that sale of the freehold meant that they were no longer entitled to the mining revenue, that the Crown, as holder of the mining leases, had at least a moral obligation to so advise them, and that a substantial ex gratia payment should be made. The Crown has conceded in the Tribunal’s proceedings that this payment should have been made. The Tribunal has welcomed the Crown’s concession and recommended that 1940 recommendation should be implemented ‘fully and in a generous spirit’.

Raupatu, the confiscation of land by the Crown during the wars of the 1860s, was another major issue in Hauraki. The Crown asked the Tribunal to examine the whole question of the war in Waikato and Hauraki, which had not been previously considered by the Tribunal because the Waikato Raupatu Claims Settlement Act 1995 was based upon direct negotiations between Tainui and the Crown. The Tribunal found that responsibility for the renewal of war in 1863 indeed lay largely with Governor Grey and his Ministers, and that the wholesale confiscation of land, including Hauraki land as well as Waikato land, was unwarranted and in breach of the Treaty. Moreover, the Crown has conceded that very little land was subsequently returned to the Hauraki tribes, following earlier inquiries.

The Tribunal has welcomed this concession, because of the seriousness of the injuries to Hauraki iwi by war and raupatu. In relation to the intersecting claims of Tainui and Hauraki over the Maramurua forest, the Tribunal had concluded that the Crown has met its obligations concerning the forest under the 1995 act, and that the forest lands, and other Crown lands in Hauraki, are potentially open to negotiations between Hauraki and the Office of Treaty Settlements in settlement of the Hauraki claims.

The Crown’s systematic purchase of Hauraki lands was a third major aspect of the Hauraki claims. Despite early purchases and confiscation, Hauraki iwi in 1865 still possessed some 80 per cent of their traditional lands. By 1900, they possessed no more than 20 per cent and at the time of hearing only about 2.6 per cent.

This dispossession had been carried out under the mechanisms provided by the Native Land Acts and under legislation which secured the Crown a monopoly right of purchase over most Hauraki land. The tribes did not generally have access to an open market or the opportunity to lease. The Tribunal’s report shows that (contrary to general opinion) the Native Lands Act 1862 was applied in Hauraki, without the two-stage process provided of first granting a tribal title then allowing the community to make considered decisions about multiple uses of the land, including their own farming or forestry enterprises as well as sale and leasing. Subsequent legislation – notably the 1865 and 1873 Acts – were little more than convenient mechanisms to divide the owners and facilitate purchase.

Despite successive governments’ rhetoric that they wished Maori as well as settlers to develop land, Maori aspirations in this regard were persistently frustrated, rather than fostered, by the Native Land Acts. Even after the Stout–Ngata commission in 1907 reported that Hauraki tribes could not afford to sell any more land, the 1909 Act again included mechanisms to facilitate purchase and the Crown launched a further campaign of systematic purchase in the district. The Tribunal has concluded that systematic purchase under the Native Land Acts exceeded even war and raupatu in its far-reaching and damaging consequences to Hauraki Maori.

In this report, and in its earlier report on Tikapa Moana (the Hauraki Gulf), the Tribunal has recognised the enormous importance to Maori of the seas, foreshores and inland waterways. In relation to foreshores and the seabed, the Hauraki Tribunal did not revisit the legal issues reported upon by a previous Tribunal but it did examine the complexity of customary interests in the Thames and Coromandel foreshores. It also concluded that the Crown’s withdrawal of the Native Land Court’s jurisdiction over foreshores after 1872 prejudiced Maori interests.

The Hauraki claims related to many issues which arise in other districts as well: old land claims and pre-emption waiver purchases, Crown purchases before 1865, the purchase of timber, thermal springs, the loss of taonga and wahi tapu, the rating of Maori land, and public works takings. In short, this is one of the most far-ranging and comprehensive reports produced under the Treaty of Waitangi Act.  It will assist in the settlement of the historical claims process generally. Moreover, for the general as well as the academic reader, it modifies existing historical understandings of many of the most important issues in post-1840 New Zealand.

On 24 June 2006, on a sunny windless day at Ngahutoitoi marae near Paeroa, the Tribunal presented the Hauraki Report to the assembled claimants. This ceremony, following presentation of the report to the Minister of Maori Affairs, was the culmination of some seven years work, covering 56 claims within the Hauraki Inquiry District.

The report is the largest in the Tribunal’s history and comprises three volumes, 1310 pages in all. The first claims were lodged by the Hauraki Maori Trust Board, constituted under act of parliament in 1988 to represent the 12 main iwi in the district’s complex tribal structure. Subsequently, many of the constituent iwi and hapu lodged separate claims.

The Tribunal appointed to hear the claims were Dame Augusta Wallace, presiding officer, John Kneebone, Professor Wharehuia Milroy, and Dame Evelyn Stokes. To our great regret and sorrow, Dame Evelyn died in August 2005, when the report to which she had made invaluable contributions was near completion. Hearings of claims and evidence began in September 1998 and concluded in November 2002. Assessing the evidence accumulated over four years of hearings, and reporting on the many claims, placed considerable demands on the Tribunal’s resources.

This is the first time that issues relating to gold mining, a central feature of the Hauraki claims, have been considered in depth by the Waitangi Tribunal. The claimants did not argue that gold, separately from land, is a traditional taonga, like pounamu. They owned the land, however, and everything in the land, and they controlled the access to it. The key questions were whether the Crown waited upon the owners’ full and free consent to open the land for mining, and whether the payments to owners for the right of access – the mining cessions or leases negotiated over Coromandel, Thames, Ohinemuri and elsewhere – were fair.

The Tribunal found that in the 1860s the Crown did generally negotiate openly and fairly and that the payments to owners of the annual miner’s rights fees and lease rentals for residential and business sites (rather than a royalty on gold actually extracted), were reasonable. This finding is related to the huge capital costs involved in quartz mining, which could be borne only by companies, as distinct from alluvial mining which can be done by individuals or small groups of miners.

However, the Tribunal found that undue pressure was brought to bear in some cases, especially in Ohinemuri, and that the Crown unilaterally reduced the scale of fees in the 1880s, when the mining industry was in difficulties. Even more seriously, the Crown systematically pursued the purchase of the freehold of land already subject to mining cessions. In 1940, a commision of inquiry found that Maori owners had not been fully advised that sale of the freehold meant that they were no longer entitled to the mining revenue, that the Crown, as holder of the mining leases, had at least a moral obligation to so advise them, and that a substantial ex gratia payment should be made. The Crown has conceded in the Tribunal’s proceedings that this payment should have been made. The Tribunal has welcomed the Crown’s concession and recommended that 1940 recommendation should be implemented ‘fully and in a generous spirit’.

Raupatu, the confiscation of land by the Crown during the wars of the 1860s, was another major issue in Hauraki. The Crown asked the Tribunal to examine the whole question of the war in Waikato and Hauraki, which had not been previously considered by the Tribunal because the Waikato Raupatu Claims Settlement Act 1995 was based upon direct negotiations between Tainui and the Crown. The Tribunal found that responsibility for the renewal of war in 1863 indeed lay largely with Governor Grey and his Ministers, and that the wholesale confiscation of land, including Hauraki land as well as Waikato land, was unwarranted and in breach of the Treaty. Moreover, the Crown has conceded that very little land was subsequently returned to the Hauraki tribes, following earlier inquiries.

The Tribunal has welcomed this concession, because of the seriousness of the injuries to Hauraki iwi by war and raupatu. In relation to the intersecting claims of Tainui and Hauraki over the Maramurua forest, the Tribunal had concluded that the Crown has met its obligations concerning the forest under the 1995 act, and that the forest lands, and other Crown lands in Hauraki, are potentially open to negotiations between Hauraki and the Office of Treaty Settlements in settlement of the Hauraki claims.

The Crown’s systematic purchase of Hauraki lands was a third major aspect of the Hauraki claims. Despite early purchases and confiscation, Hauraki iwi in 1865 still possessed some 80 per cent of their traditional lands. By 1900, they possessed no more than 20 per cent and at the time of hearing only about 2.6 per cent.

This dispossession had been carried out under the mechanisms provided by the Native Land Acts and under legislation which secured the Crown a monopoly right of purchase over most Hauraki land. The tribes did not generally have access to an open market or the opportunity to lease. The Tribunal’s report shows that (contrary to general opinion) the Native Lands Act 1862 was applied in Hauraki, without the two-stage process provided of first granting a tribal title then allowing the community to make considered decisions about multiple uses of the land, including their own farming or forestry enterprises as well as sale and leasing. Subsequent legislation – notably the 1865 and 1873 Acts – were little more than convenient mechanisms to divide the owners and facilitate purchase.

Despite successive governments’ rhetoric that they wished Maori as well as settlers to develop land, Maori aspirations in this regard were persistently frustrated, rather than fostered, by the Native Land Acts. Even after the Stout–Ngata commission in 1907 reported that Hauraki tribes could not afford to sell any more land, the 1909 Act again included mechanisms to facilitate purchase and the Crown launched a further campaign of systematic purchase in the district. The Tribunal has concluded that systematic purchase under the Native Land Acts exceeded even war and raupatu in its far-reaching and damaging consequences to Hauraki Maori.

In this report, and in its earlier report on Tikapa Moana (the Hauraki Gulf), the Tribunal has recognised the enormous importance to Maori of the seas, foreshores and inland waterways. In relation to foreshores and the seabed, the Hauraki Tribunal did not revisit the legal issues reported upon by a previous Tribunal but it did examine the complexity of customary interests in the Thames and Coromandel foreshores. It also concluded that the Crown’s withdrawal of the Native Land Court’s jurisdiction over foreshores after 1872 prejudiced Maori interests.

The Hauraki claims related to many issues which arise in other districts as well: old land claims and pre-emption waiver purchases, Crown purchases before 1865, the purchase of timber, thermal springs, the loss of taonga and wahi tapu, the rating of Maori land, and public works takings. In short, this is one of the most far-ranging and comprehensive reports produced under the Treaty of Waitangi Act.  It will assist in the settlement of the historical claims process generally. Moreover, for the general as well as the academic reader, it modifies existing historical understandings of many of the most important issues in post-1840 New Zealand.

On 24 June 2006, on a sunny windless day at Ngahutoitoi marae near Paeroa, the Tribunal presented the Hauraki Report to the assembled claimants. This ceremony, following presentation of the report to the Minister of Maori Affairs, was the culmination of some seven years work, covering 56 claims within the Hauraki Inquiry District.

The report is the largest in the Tribunal’s history and comprises three volumes, 1310 pages in all. The first claims were lodged by the Hauraki Maori Trust Board, constituted under act of parliament in 1988 to represent the 12 main iwi in the district’s complex tribal structure. Subsequently, many of the constituent iwi and hapu lodged separate claims.

The Tribunal appointed to hear the claims were Dame Augusta Wallace, presiding officer, John Kneebone, Professor Wharehuia Milroy, and Dame Evelyn Stokes. To our great regret and sorrow, Dame Evelyn died in August 2005, when the report to which she had made invaluable contributions was near completion. Hearings of claims and evidence began in September 1998 and concluded in November 2002. Assessing the evidence accumulated over four years of hearings, and reporting on the many claims, placed considerable demands on the Tribunal’s resources.

This is the first time that issues relating to gold mining, a central feature of the Hauraki claims, have been considered in depth by the Waitangi Tribunal. The claimants did not argue that gold, separately from land, is a traditional taonga, like pounamu. They owned the land, however, and everything in the land, and they controlled the access to it. The key questions were whether the Crown waited upon the owners’ full and free consent to open the land for mining, and whether the payments to owners for the right of access – the mining cessions or leases negotiated over Coromandel, Thames, Ohinemuri and elsewhere – were fair.

The Tribunal found that in the 1860s the Crown did generally negotiate openly and fairly and that the payments to owners of the annual miner’s rights fees and lease rentals for residential and business sites (rather than a royalty on gold actually extracted), were reasonable. This finding is related to the huge capital costs involved in quartz mining, which could be borne only by companies, as distinct from alluvial mining which can be done by individuals or small groups of miners.

However, the Tribunal found that undue pressure was brought to bear in some cases, especially in Ohinemuri, and that the Crown unilaterally reduced the scale of fees in the 1880s, when the mining industry was in difficulties. Even more seriously, the Crown systematically pursued the purchase of the freehold of land already subject to mining cessions. In 1940, a commision of inquiry found that Maori owners had not been fully advised that sale of the freehold meant that they were no longer entitled to the mining revenue, that the Crown, as holder of the mining leases, had at least a moral obligation to so advise them, and that a substantial ex gratia payment should be made. The Crown has conceded in the Tribunal’s proceedings that this payment should have been made. The Tribunal has welcomed the Crown’s concession and recommended that 1940 recommendation should be implemented ‘fully and in a generous spirit’.

Raupatu, the confiscation of land by the Crown during the wars of the 1860s, was another major issue in Hauraki. The Crown asked the Tribunal to examine the whole question of the war in Waikato and Hauraki, which had not been previously considered by the Tribunal because the Waikato Raupatu Claims Settlement Act 1995 was based upon direct negotiations between Tainui and the Crown. The Tribunal found that responsibility for the renewal of war in 1863 indeed lay largely with Governor Grey and his Ministers, and that the wholesale confiscation of land, including Hauraki land as well as Waikato land, was unwarranted and in breach of the Treaty. Moreover, the Crown has conceded that very little land was subsequently returned to the Hauraki tribes, following earlier inquiries.

The Tribunal has welcomed this concession, because of the seriousness of the injuries to Hauraki iwi by war and raupatu. In relation to the intersecting claims of Tainui and Hauraki over the Maramurua forest, the Tribunal had concluded that the Crown has met its obligations concerning the forest under the 1995 act, and that the forest lands, and other Crown lands in Hauraki, are potentially open to negotiations between Hauraki and the Office of Treaty Settlements in settlement of the Hauraki claims.

The Crown’s systematic purchase of Hauraki lands was a third major aspect of the Hauraki claims. Despite early purchases and confiscation, Hauraki iwi in 1865 still possessed some 80 per cent of their traditional lands. By 1900, they possessed no more than 20 per cent and at the time of hearing only about 2.6 per cent.

This dispossession had been carried out under the mechanisms provided by the Native Land Acts and under legislation which secured the Crown a monopoly right of purchase over most Hauraki land. The tribes did not generally have access to an open market or the opportunity to lease. The Tribunal’s report shows that (contrary to general opinion) the Native Lands Act 1862 was applied in Hauraki, without the two-stage process provided of first granting a tribal title then allowing the community to make considered decisions about multiple uses of the land, including their own farming or forestry enterprises as well as sale and leasing. Subsequent legislation – notably the 1865 and 1873 Acts – were little more than convenient mechanisms to divide the owners and facilitate purchase.

Despite successive governments’ rhetoric that they wished Maori as well as settlers to develop land, Maori aspirations in this regard were persistently frustrated, rather than fostered, by the Native Land Acts. Even after the Stout–Ngata commission in 1907 reported that Hauraki tribes could not afford to sell any more land, the 1909 Act again included mechanisms to facilitate purchase and the Crown launched a further campaign of systematic purchase in the district. The Tribunal has concluded that systematic purchase under the Native Land Acts exceeded even war and raupatu in its far-reaching and damaging consequences to Hauraki Maori.

In this report, and in its earlier report on Tikapa Moana (the Hauraki Gulf), the Tribunal has recognised the enormous importance to Maori of the seas, foreshores and inland waterways. In relation to foreshores and the seabed, the Hauraki Tribunal did not revisit the legal issues reported upon by a previous Tribunal but it did examine the complexity of customary interests in the Thames and Coromandel foreshores. It also concluded that the Crown’s withdrawal of the Native Land Court’s jurisdiction over foreshores after 1872 prejudiced Maori interests.

The Hauraki claims related to many issues which arise in other districts as well: old land claims and pre-emption waiver purchases, Crown purchases before 1865, the purchase of timber, thermal springs, the loss of taonga and wahi tapu, the rating of Maori land, and public works takings. In short, this is one of the most far-ranging and comprehensive reports produced under the Treaty of Waitangi Act.  It will assist in the settlement of the historical claims process generally. Moreover, for the general as well as the academic reader, it modifies existing historical understandings of many of the most important issues in post-1840 New Zealand.

In March 1997, Dame Augusta Wallace was appointed presiding officer for the Waitangi Tribunal’s inquiry into the Kaipara district, and the remaining members of this Tribunal were appointed in June 1997. The records of inquiry of various claims relating to the Kaipara region were combined under the reference number Wai 674 in July 1997. The inquiry district was divided into three areas (stages 1, 2, and 3), to be heard in sequence. Hearings for stage 1 claims commenced in August 1997 and continued until June 1998. The main Te Uri o Hau claims (Wai 229 and Wai 271) were heard by the Tribunal in stage 1. While this stage of the inquiry was in progress, counsel for Wai 229 and Wai 271 made a series of submissions asking the Tribunal to issue an interim report at the completion of the stage 1 hearings. The claimants sought an interim report or preliminary indications from the Tribunal, with a view to entering into direct negotiations with the Crown for the settlement of their claims as soon as possible.

Claims in the Kaipara inquiry fall into three categories:

• those historical claims which will be settled as soon as the Te Uri o Hau Claims Settlement Bill is enacted;
• those claims which are part of the Kaipara inquiry but have not been heard by the Tribunal; and
• those claims which have been heard by the Tribunal but are not included in the Te Uri o Hau settlement.

The reasons for the Kaipara Tribunal's decision to issue this interim report are set out in the following memorandum, which was originally intended for the relevant Ministers:

The members of the Tribunal constituted to hear the Kaipara claims met on 1 May and 6 June 2002, and, after lengthy discussion, unanimously reached the following conclusions. One member was absent from the meetings, but has separately signified his agreement to this memorandum.

1. The Waitangi Tribunal is a permanent commission of inquiry with a statutory responsiblity to inquire into Maori claims of breaches of the Treaty of Waitangi.

2. Independent of the Tribunal process, the Crown reserves to itself the power to negotiate directly with Maori claimants.

3. Before this Tribunal has reported on the Kaipara claims (including Te Uri o Hau claims as defined in the Te Uri o Hau Claims Settlement Bill), the Crown has chosen to negotiate separately with Te Uri o Hau, in isolation from all the other Kaipara claims.

4. The Te Uri o Hau Claims Settlement Act, when passed, will exclude the Tribunal from jurisdiction in relation to those Te Uri o Hau claims.

5. In this Tribunal's view, generic grievances, in relation to which the Crown has admitted culpability in the Te Uri o Hau Settlement, are common to claims throughout the whole Kaipara inquiry district.

6. These generic grievances could be the basis for negotiations and settlements of claims throughout the region. While the Tribunal exercises a separate jurisdiction, it believes that it could be in the interests of other Kaipara claimants for the Crown to enter into direct negotiations with them. In making this statement, this Tribunal is mindful of the dictates of natural justice and the need for that to be perceived by all.

7. Were the Kaipara Tribunal to report on those generic grievances, it would find itself, in general terms, in sympathy with the acknowledgements of Treaty breaches which the Crown has made in the Te Uri o Hau settlement.

8. As soon as possible, the Tribunal intends to publish a brief report of its interim findings in relation to those generic grievances in respect of all Kaipara claims, excepting only Te Uri o Hau claims (as defined above). The Tribunal is aware that this might assist Kaipara claimants and the Crown, should the parties wish to negotiate directly.

9. The Tribunal will consider whether to report finally, in its usual manner, on the Kaipara claims, or any part thereof (other than Te Uri o Hau claims), on application to this Tribunal by the Crown or claimants. Such an application will be notified to all parties to the Kaipara inquiry.

10. The Kaipara Tribunal takes this somewhat unusual course in this inquiry due to the particular circumstances that have arisen following direct Crown negotiations and settlement with Te Uri o Hau, in isolation from the rest of the Kaipara claims, and in advance of the Tribunal reporting. This situation of dual or competing processes occurring in tandem has caused the Tribunal to consider the matter at length. While not vacating its statutory jurisdiction, the Kaipara Tribunal is proposing this course of action in an endeavour to be practical and fair to all parties.

Before this memorandum could be sent to the Ministers, the announcement of a general election on 27 July 2002 was made, and the memorandum was held over for the incoming Government. The Tribunal decided to proceed with its intention of issuing a brief report of its interim findings in respect of generic issues acknowledged by the Crown in the Te Uri o Hau Claims Settlement Bill.

The report covers 14 individual claims stretching from Dargaville down the West Coast to Muriwai, and from Mangawhai on the East Coast to Riverhead on the Waitemata Harbour. The Tribunal concluded that claimants were prejudiced by numerous breaches around these issues and that several breaches to articles 2 and 3 of the Treaty of Waitangi had occurred. The Tribunal finds that the Ngati Whatua o Kaipara claim (Wai 312), and four other southern Kaipara claims, are well founded. This report also contains a minority opinion from one of the Kaipara Tribunal members, Dr Michael Bassett.

This short report concerns a claim about the inclusion of Ngā Wairiki in the proposed Ngāti Apa Treaty settlement.

Claim Wai 449 was lodged in 1994 by kiwifruit growers Marata Norman and Wi Parera Te Kani on behalf of themselves, their whanau, and their iwi, and alleged that the Crown had breached the Treaty of Waitangi in regards to the kiwifruit industry and, in particular, to the export of their kiwifruit as the produce of their ancestral lands.

Specifically, the claim challenged the Primary Products Marketing Act 1953 and the Kiwifruit Marketing Regulations 1977, which gave the New Zealand Kiwifruit Marketing Board a monopoly to export kiwifruit to all foreign markets except Australia. The claimants alleged that this monopoly violated their right to exercise te tino rangatiratanga over their own affairs.

The claim was accorded urgency on the ground that, if the claimants' Treaty rights were not determined quickly, then they could have been locked into a regime that could have caused them irreparable economic damage.

The Tribunal constituted to hear the claim comprised Judge Patrick Savage (presiding), the Honourable Dr Michael Bassett, John Kneebone, and Sir John Turei. The evidence and submissions were heard between 24 July and 1 August 1995, and the report was presented to the Minister of Maori Affairs and the claimants three months later, on 6 November.

The central issue in the Tribunal's deliberations was whether the right to export kiwifruit was a taonga with protection under article 2 of the Treaty of Waitangi. The Tribunal concluded that it was not a taonga and that, even if it had been, 'the regulation of export trade is a legitimate exercise of kawanatanga'. The Tribunal thus found that the claim was not well founded:

in pre-contact times the exchange of treasures by iwi and hapu might have been regarded as a taonga. It would, in our view, be an unjustified straining of Treaty principles to hold that the right to develop such a treasure could extend all the way to the modern kiwifruit export trade.

The Tribunal did, however, make some points with regard to consultation, noting that 'there did not seem to be an adequate recognition of Treaty duties by the parties to this claim'.

The Tribunal ended by saying that it was confident that those who had been involved in the claim had learnt much from it and hoped that all who were involved in the kiwifruit industry would try harder to develop the spirit of partnership that was implicit in the Treaty.

Claim Wai 414 was lodged in January 1994 by Haki Wihongi on behalf of himself and the Te Whanau o Waipareira Trust, of which he was the chairperson. The trust had been established by Te Whanau o Waipareira, a non-tribal Maori community based in west Auckland, in order to provide effective social services and to lead the community's efforts to help itself. The claim alleged that the Crown, through the Community Funding Agency of the Department of Social Welfare, had failed to recognise the special status of Te Whanau o Waipareira as a Maori organisation and had failed to properly consult and deal with it in accordance with the Crown's obligations under article 2 of the Treaty of Waitangi.

The Tribunal constituted to hear the claim was made up of Joanne Morris (presiding), Sir John Ingram, Sir Hugh Kawharu, Pamela Ringwood, and Hepora Young, and it sat five times between August 1991 and April 1995 to hear evidence and submissions.

John Tamihere of the trust described the claim as being:

essentially about fairness, due process and equality of opportunity. It is about our right as a pan-tribal wha-nau in the urban area to be acknowledged as a Treaty partner and our right as urban Maori to organise ourselves in accordance with our own tikanga to address our own problems our way.

Dr Pita Sharples noted that:

Waipareira is the appropriate organisation to administer and deliver services and create responsibility and hope and dreams amongst our people in West Auckland. We are better suited to know our needs and to deal with them than any government organisation. That is what the claim is saying.

The members of Te Whanau o Waipareira were not all linked by kinship, and most lived outside the traditional territories of the tribes from which they were descended. The claim thus broke new ground by contending that a non-tribal group of Maori had rights under the Treaty. According to claimant counsel, at its heart the claim said that ‘the rights and interests of urban Maori, separated from, distanced from and disenfranchised from the home iwi, are rights which fall properly within the Treaty of Waitangi’.

The Te Whanau o Waipareira Report was released in Auckland on 6 July 1998. In it, the Tribunal upheld the trust's claim that Te Whanau o Waipareira was prejudiced by policies and operations of the Community Funding Agency, and it found that, if a Maori community exercised rangatiratanga, then it deserved special recognition in terms of the Treaty:

Rangatiratanga, in this context, is that which is sourced to the reciprocal duties and responsibilities between leaders and their associated Maori community. It is a relationship fundamental to Maori culture and identity and describes a leadership acting not out of self-interest but in a caring and nurturing way with the people close at heart, fully accountable to them and enjoying their support … The principle of rangatiratanga appears to be simply that Maori should control their own tikanga and taonga, including their social and political organisation, and, to the extent practicable and reasonable, fix their own policy and manage their own programmes.

In examining this claim, the Tribunal said that it was important to read all parts of the Treaty together in order to understand it, instead of trying to interpret the separate words and articles of the texts. It rejected the argument that only 'traditional iwi' are the Crown's Treaty partners, saying that the Treaty was for the protection and benefit of all Maori:

The Treaty of Waitangi was signed by rangatira of hapu, on behalf of all Maori people, collectively and individually. Therefore, conversely, protective benefits and rights of autonomy in terms of the Treaty are not limited to traditional tribal communities.

The Tribunal also found that the Treaty partnership made the Crown accountable to Maori for the outcomes of its social and welfare policies. Waipareira's efforts to provide better integrated and coordinated programmes were frustrated by its having to deal with many different Crown agencies, each with its own policies and procedures.

The Tribunal recommended that, in developing and applying policy for the delivery or funding of social services to Maori, the Department of Social Welfare and the Community Funding Agency deal with any Maori community that had demonstrated its capacity to exercise rangatiratanga in welfare matters and that social and welfare services to Maori communities stand as a separate output class designed to promote community development. It also recommended that there be better consultation and a greater devolution of decision-making power and resources to Waipareira in particular and a greater reporting of the outcomes for Maori of the Government's social policies:

We reminded ourselves that the intent of the Treaty was something like a marriage of two nations, two cultures, who wanted to share a house which they planned to build together, accommodating each other's needs with respect and goodwill, for their mutual benefit. …

The success of a marriage depends not on the ability of the parties to formulate or interpret vows advantageously to themselves, nor on their ability to enforce them in the case of dispute. Rather, it depends on their commitment to work through problems in a spirit of goodwill, trust, and generosity, actively seeking creative solutions, and taking opportunities to bolster each other.