Te Awa Tupua (Whanganui River Claims Settlement) Bill

  • enacted

Te Awa Tupua (Whanganui River Claims Settlement) Bill

Government Bill

129—2

As reported from the Māori Affairs Committee

Commentary

Recommendation

The Māori Affairs Committee has examined Te Awa Tupua (Whanganui River Claims Settlement) Bill and recommends that it be passed with the amendments shown.

Background information

Whanganui River and Whanganui iwi

The Whanganui River is the longest navigable river in New Zealand, originating at Mount Tongariro and ending in the Tasman Sea. The river has a long history of providing physical and spiritual support to Whanganui iwi and their hapū.

Whanganui iwi, as defined in clause 8 of the bill, is defined as every individual who:

  • has exercised customary rights and responsibilities in respect to Whanganui River; and

  • is descended from Ruatipua, Paerangi, or Haunui-ā-Pāpārangi.

It also includes the hapū and tūpuna rohe groups of Whanganui iwi.

These groups are set out in clauses 1 and 2 of Schedule 1. We note that the listed groups are not intended to be exhaustive.

Several iwi, including Whanganui iwi, have interests in the Whanganui River and its tributaries. The bill lists these iwi as follows:

  • Ngā Rauru Kītahi

  • Ngāti Apa

  • Ngāti Maniapoto

  • Ngāti Maru

  • Ngāti Rereahu

  • Ngāti Ruanui

  • Ngāti Tūwharetoa

  • Whanganui iwi.

The term “iwi and hapū with interests in the Whanganui River” refers to these iwi, and any hapū of these iwi, who have interests in the Whanganui River.

Proposed Legal Framework (Te Pā Auroa nā Te Awa Tupua)

Te Awa Tupua (Whanganui River Claims Settlement) Bill is unusual because it declares the Whanganui River as Te Awa Tupua, “an indivisible and living whole, incorporating all its physical and meta-physical elements”.2 As a result of this unique arrangement, the bill proposes a legal framework, known as Te Pā Auroa nā Te Awa Tupua, to support Te Awa Tupua.

To represent Te Awa Tupua, the bill proposes establishing Te Pou Tupua (the human face of the river). Te Pou Tupua would consist of two nominated representatives. One representative would be chosen by the Crown, and the other would be selected by iwi with interests in the river. Te Pou Tupua would be responsible for the care and well-being of Te Awa Tupua, as well as maintaining relationships with all iwi and hapū with interests in Te Awa Tupua.

There is intended to be an advisory group called Te Karewao to support Te Pou Tupua. Iwi and hapū would appoint a member of Te Karewao if the group considers business that is only applicable to their specific area of the river. Local authorities would also have a representative in Te Karewao.

The bill also provides for the establishment of a collaborative strategy group to be called Te Kōpuka. Te Kōpuka would develop and maintain a strategy document, known as Te Heke Ngahuru, for Te Awa Tupua. Te Kōpuka would require representatives with diverse interests, defined in Part 2, subpart 4 of the bill.

Introduction

Te Awa Tupua (Whanganui River Claims Settlement) Bill proposes to establish the Whanganui River as its own legal personality (Te Awa Tupua). The bill would give effect to the Whanganui River Deed of Settlement (Ruruku Whakatupua) signed by the Crown and Whanganui iwi on 5 August 2014. This deed settles the historical Treaty of Waitangi claims of Whanganui iwi in relation to the Whanganui River. The bill also records the acknowledgements and apology of the Crown offered to Whanganui iwi in relation to the Whanganui River.

The historical claims of Whanganui iwi that relate to the Whanganui River largely concern Crown actions and omissions in gaining control of the river. This includes the removal of minerals and traditional structures from the river, legislation enacted in the 19th and 20th centuries, and the diversion of the headwaters of the river for hydroelectric purposes.

Part 1 of the bill sets out the preliminary provisions. These include defining who qualifies as “Whanganui iwi” for the purposes of the bill, defining which historical claims are settled in the bill, and defining the purpose of the bill.

Part 2 of the bill gives effect to Te Pā Auroa nā Te Awa Tupua, the new legal framework which provides for the exercise of all statutory functions, powers, and duties in relation to the Whanganui River.

Part 3 of the bill deals with cultural redress.

Part 4 of the bill settles the historical claims of Whanganui iwi in relation to the Whanganui River.

Part 5 of the bill addresses the reorganisation of the Whanganui River’s governance systems, including the dissolution of Te Whiringa Muka Trust, the Whanganui River Māori Trust Board, and Pakaitore Trust.

This bill includes only those parts of the redress in the settlement package that require legislative authority. The Deed of Settlement sets out, in full, the redress provided to Whanganui iwi to settle all its historical Treaty of Waitangi claims in relation to the Whanganui River.

This commentary covers the settlement issues we considered and several technical amendments that we recommend to the bill.

Involvement in Te Awa Tupua

We note that some groups, such as Ngāti Maniapoto, Ngāti Hāua, and those covered by the Uenuku Charitable Trust mandate, expressed concern that they would have limited influence over the governance of Te Awa Tupua. We acknowledge these groups’ interest in continuing to exercise their kaitiakitanga in relation to the Whanganui catchment, particularly for those groups that have not yet reached their own settlements with the Crown. We expect that once the Maniapoto interests are resolved by their settlement, the extent to which they participate in decision-making for the upper catchment will be clarified.

We were advised by the Office of Treaty Settlements that Te Pā Auroa nā Te Awa Tupua would outline several different mechanisms to ensure that Whanganui iwi, and all iwi with interests in Te Awa Tupua, would have opportunities to be involved in the governance and care of the river. In particular:

  • It would be an obligation of Te Pou Tupua to develop and maintain relationships with all the iwi and hapū with interests in the river.

  • Te Pou Tupua would uphold Tupua te Kawa (the river values). It would be responsible for ensuring that Te Awa Tupua’s wellbeing is promoted and protected in a way that best reflects the interests of iwi and hapū with interests in the river.

  • Iwi with interests in the river would have the opportunity to appoint a member to Te Karewo, the river’s advisory body. They would also have the right to participate in Te Kōpuka, allowing them to be involved in developing the river strategy (Te Heke Ngahuru). This would also provide an opportunity to work towards advancing the health and well-being of Te Awa Tupua.

  • Iwi with interests in the river would also have the right to apply to Te Korotete (a $30 million contestable fund) for additional funds to support the health and well-being of Te Awa Tupua.

We are satisfied that these measures will provide all iwi and hapū that have an interest in Te Awa Tupua with the ability to continue to exercise, and potentially enhance, their kaitiakitanga.

Settlement concerns

Some submitters raised concerns that this bill would compromise aspects of their future settlement opportunities. We sought advice from the Office of Treaty Settlements about these concerns.

To provide context, we note that the riverbeds vested in this bill are unique in that they are vested in Te Awa Tupua. Te Awa Tupua would be a distinct legal entity, separate from both the Crown and iwi.

Concerns of Maniapoto Māori Trust Board

We heard that the Maniapoto Māori Trust Board has concerns that the settlement of the historical claims regarding the Whanganui River could compromise Ngāti Maniapoto’s future settlement opportunities. The board is concerned that riverbed vested under the bill, including riverbed within the Ngāti Maniapoto rohe, would become unavailable for future settlement negotiations. The board also submitted that its negotiated redress could be lost in the future if the course of the river changes.

We note that four hapū of Ngāti Maniapoto filed a claim with the Waitangi Tribunal in 2014. This claim raised similar issues to the issues raised in the board’s submission. The claim stated that the Whanganui River Settlement covered offshoots of the Whanganui River that were exclusively managed by Ngāti Maniapoto or its hapū. It claimed that these waterways were included without Ngāti Maniapoto’s mandate.

Te Awa Tupua’s unique “automatic vesting” provision, designed to account for natural changes in the river’s course, will not affect land vested through other Treaty settlements. Only Crown land would be susceptible to “automatic vesting”. Private land, such as land provided to iwi as redress, would be excluded from vesting under clause 46(2)(b).

We were advised that the bill explicitly states that it will not settle Ngāti Maniapoto’s historical claims to the river (or the claims of any other iwi with interest). We note that the bill would not stop Ngāti Maniapoto and the Crown from negotiating statutory acknowledgements and deeds of recognition over the Whanganui River and its tributaries. Furthermore, the Office of Treaty Settlements advised us that Ngāti Maniapoto’s future redress would be subject to an overlapping claims process. This consultation would involve Whanganui iwi, who have already indicated that they would be open to being involved in this process.

Concerns of Te Rūnanga o Ngāti Maru

Te Rūnanga o Ngāti Maru raised similar concerns to those of the Maniapoto Māori Trust Board. As with Ngāti Maniapoto, the Whanganui River Settlement will not settle the historical claims of Ngāti Maru.

In the bill, Ngāti Maru is recognised as an “iwi with interests in the river”. This ensures their role in the ongoing management of Te Awa Tupua.

Future status of Whanganui River Māori Trust Board

The Whanganui River Māori Trust Board indicated that it supports the bill. However, it suggested that, as the bill would dissolve the board, it would be sensible to avoid the need to hold further elections for the board before the commencement of the bill. As the board has largely completed its role, and is focusing on transitional and disestablishment work, it argues that there is limited value in electing new members. The board could also avoid the significant costs of holding another election.

We agree that this is a prudent course of action, and considered inserting a new clause to this effect. However, we were advised that such an amendment would need agreement from the Minister responsible for the Māori Trust Boards Act 1955. It has not been possible to seek this decision before we are due to report back to the House. We therefore have not recommended amending the bill. We note that a Supplementary Order Paper could be used to address this issue.

We note that the assets from Te Whiringa Muka Trust, who administer the Fisheries settlement (under the Māori Fisheries Act 2004), will transfer to Nga Tangata Tiaki.

Waikune Prison

Waikune Prison is an occupied prison site located in the Tongariro National Park, at the base of Mt. Ruapehu. The prison is located in the Uenuku Charitable Trust’s area of interest. The prison is currently held within the Land Information New Zealand (LINZ) landbank, but has been leased to the Whanganui Māori Trust Board since 2002.

We note the concern expressed by Uenuku Charitable Trust that this site may not be available for its future settlements. We seek to reassure the Trust that we have received advice on this point. We understand that, because the prison is Crown land held in the LINZ landbank, it is available for future treaty settlements. These settlements would be subject to negotiation with the Crown and an overlapping claims process.

Recommended changes to the bill

Definition of Whanganui iwi for the purposes of this bill

The Uenuku Charitable Trust, on behalf of Uenuku and Tamahaki, requested that the bill reflect their status as iwi—rather than referring to them as Whanganui hapū. Te Iwi O Ngāti Hāua Charitable Trust raised similar concerns about the treatment of Ngāti Hāua in the bill.

We note that the bill’s definition of ‘Whanganui iwi’ originates from the list of those hapū that were active in the 1950 Royal Commission of Inquiry into the Bed of the Whanganui River. The definition is not intended for any use other than the settlement of the Whanganui River claims.

Nonetheless, we recommend clarifying the Explanatory Note in Schedule 1 to avoid confusion in the future. Our amendments specifically include Ngāti Tamahaki as an example of a group affiliated with Whanganui iwi, even though it is not expressly identified. We also recommend emphasising that the groups listed in clause 1 of Schedule 1, which include Ngāti Uenuku and Ngāti Hāua, may also be viewed as iwi within the broader context of “Whanganui iwi”.

Uenuku Charitable Trust, Ngāti Hāua Trust, and Ngā Tāngata Tiaki indicated to our advisers that they support the intent of these suggested changes. We note that advisers are investigating potential risks.

Te Pou Tupua appointments

During the consultation on this bill, we became aware of a flaw in the Te Pou Tupua appointment process. As the role of Minister for Treaty of Waitangi Negotiations will not exist indefinitely, we recommend amending clause 20(1)(b). We recommend that the clause should provide that the Minister for Treaty of Waitangi Negotiations is only responsible for the first nomination of a Crown representative to Te Pou Tupua. We recommend that, subsequently, the Minister for the Environment should be responsible for nominations.

We recommend this Minister because Te Awa Tupua is a body of fresh water predominantly managed by the Resource Management Act 1991.

Furthermore, we recommend that both the Minister for Treaty of Waitangi Negotiations and the Minister for the Environment should be required to consult with the Minister for Māori Development, the Minister for Conservation, and any other relevant Ministers. The requirement to consult with the Minister for Māori Development recognises Te Pou Tupua’s importance in terms of the Treaty partnership. The requirement to consult with the Minister of Conservation recognises that nearly 50 percent of the Whanganui River catchment is part of a large conservation estate.

Appendix

Committee process

Te Awa Tupua (Whanganui River Claims Settlement) Bill was referred to the committee on 24 May 2016. The closing date for submissions was 6 July 2016. We received and considered 20 submissions from interested groups and individuals. We heard oral evidence from 11 submitters at hearings in Whanganui 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 Mahuta

Pita Paraone

Metiria Turei

2 Part 2 (“Te Pā Auroa nā Te Awa Tupua—Te Awa Tupua Framework”), subpart 2, clause 12.