The Waimumu Trust (SILNA) Report
Waimumu Trust claim
The Waitangi Tribunal released The Waimumu Trust (SILNA) Report on 9 May 2005. The claimants are the beneficiaries of the Waimumu Trust, which administers an area of 4440 hectares of indigenous forested land in central Southland, granted to their ancestors under the South Island Landless Natives Act 1906 (SILNA). The claim is about the Forest Amendment Act 2004, which removed their right to export unsustainably logged timber without compensation. This Act arose from the Crown’s indigenous forests and SILNA policies, which the claimants alleged are in breach of the principles of the Treaty of Waitangi. They argued that the removal of the power to export (without compensation) would lead to a loss of some $25 million in potential earnings. The claim was heard urgently at Christchurch in October 2004, with closing submissions in Wellington in November of that year.
The main focus of the urgent inquiry was, in the first instance, the claim that the Forests Amendment Act 2004 had removed the power of the claimants to export unsustainably logged timber, without compensation. The claimants argued that sustainable logging was uneconomic and would in any case only yield them $1.66 million. Unsustainable logging over five years would have earned $25.25 million (a difference of $23.59 million). The Tribunal does not consider this part of the claim to be well founded. The valuations were unsatisfactory, and there does not appear to be an export market for the Waimumu Trust’s timber in any case. There has been no breach of the principles of the Treaty, and no prejudice to the claimants, arising from this part of the Forests Amendment Act 2004.
In terms of the domestic market, claimants and the Crown were in broad agreement that the Resource Management Act 1991 (RMA) has placed strong constraints on the owners’ ability to carry out unsustainable logging. In 2001, the Environment Court accepted the Crown’s contention that the SILNA grants were not in a special category and requiring special treatment. Previously, the Crown considered the SILNA lands to be a special case because they were reserves granted by the Crown in 1906, as partial remedy for its failure to keep its nineteenth-century promises to Ngai Tahu. The Southland District Council also thought at first that the SILNA lands might require special treatment, but this idea had lapsed by the time the Southland District Plan was promulgated. As a result, the RMA is a key constraint on the claimants’ ability to make an economic use of their SILNA lands.
The Forests Amendment Act arose from the Crown’s SILNA and indigenous forest policies, as developed from 1990 to the present day. Parliament’s intention in 1906 was to provide at least a partial remedy for the Crown’s failure to set aside any or adequate reserves for Ngai Tahu in the nineteenth century. The Ngai Tahu Tribunal found that this was not in fact an adequate remedy, and the Crown has settled historical claims relating to these grievances in its Ngai Tahu Claims Settlement Act 1998. None the less, the Crown began negotiations with SILNA owners in the 1990s on the basis that their lands were a special case; a compensatory award, the intent of which would be defeated by its new indigenous forests policy. The Crown’s change of heart on this point, which the Tribunal thinks influenced both the Environment Court and the District Council, was probably inconsistent with both the historical facts and the principles of the Treaty. The Tribunal reached a preliminary view only on this matter, on the basis of the evidence available to it, as it could not conduct a full hearing of the SILNA claims. The Tribunal is satisfied that its preliminary view is sound and will assist claimants and the Crown.
In 2000, the Minister of Forests proposed to compensate all SILNA owners equally and to ensure that such a policy was consistent with the Treaty. His proposal was rejected, partly on the grounds that the historical evidence showed the SILNA awards to be of a different nature than previously thought in the 1990s. Such historical evidence was then subsequently and hastily commissioned. The Tribunal’s preliminary view is that this policy change was probably in breach of Treaty principles.
In terms of the specific Waimumu Trust claim, the Tribunal found that the Crown’s actions in the 1990s created a legitimate expectation that they would receive compensation as a result of a negotiated settlement. This expectation was created by the Framework Agreement for negotiations, and then strengthened by moratorium payments and the settlements of the Waitutu and Rakiura SILNA forest claims. The latter were settled because they have a high conservation value, and the settlements were calculated on the basis of commercial timber values. The Tribunal found that the Crown abandoned negotiations for compensation without the concurrence of the Waimumu Trust. Instead, it imposed conservation orders under the Nature Heritage Fund (NHF) as the only effective alternative remedy. The NHF payments are calculated on a much lower value than the commercial value of the timber, unlike the Waitutu and Raikura settlements. The Tribunal concluded that the Crown’s change of policy has been unfair to the Waimumu Trust and has breached the principles of the Treaty of Waitangi.
Despite this Treaty breach, the claimants have not yet suffered any prejudice. The option of applying to the NHF is still open to them. The Tribunal suggests that the Crown take advantage of this opportunity to review the basis of the NHF payments and ensure a fair outcome for the Waimumu Trust.
