Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010

Preamble

The Relationship of Waikato-Tainui with the Waikato River
“Noo taatou te awa. Noo te awa taatou. E kore e taea te wehe te iwi o Waikato me te awa. He taonga tuku iho naa ngaa tuupuna. E whakapono ana maatou ko taa maatou, he tiaki i taua taonga moo ngaa uri whakatupu.”
Robert Te Kotahi Mahuta 1975
Te Mana o te Awa

(1)

To Waikato-Tainui, the Waikato River is a tupuna (ancestor) which has mana (prestige) and in turn represents the mana and mauri (life force) of the tribe. Respect for te mana o te awa (the spiritual authority, protective power and prestige of the Waikato River) is at the heart of the relationship between the tribe and their ancestral river:

Mana whakahaere

(2)

Mana whakahaere embodies the authority that Waikato-Tainui and other River tribes have established in respect of the Waikato River over many generations, to exercise control, access to and management of the Waikato River and its resources in accordance with tikanga (values, ethics and norms of conduct). For Waikato-Tainui, mana whakahaere has long been exercised under the mana of the Kiingitanga:

Raupatu and the River: Invasion and War, Confiscation of Waikato Lands

(3)

Waikato-Tainui, as at 1840, possessed their River, and their lands in accordance with their tikanga along with other Waikato River iwi. The Treaty of Waitangi guaranteed in the Maori text “te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa” or in the English text “the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession”:

(4)

Waikato-Tainui made public statements of their authority over the Waikato River from the time they first became concerned that the Crown might itself claim authority over it. When the Governor’s intentions to put an iron steamer on the River became known late in 1862, Patara Te Tuhi, editor of the Kiingitanga newspaper Te Hokioi, expressed the opposition of the chiefs warning that the gunboat might not enter the River without permission. He asserted tribal authority over the River in these words: “E hara a Waikato awa i a te kuini, erangi no nga Maori anake”. (The Waikato River does not belong to the Queen of England, it belongs only to Maori.):

(5)

In July 1863, the Crown’s military forces crossed the Mangataawhiri River. In the ensuing war of 1863-64, the Crown’s forces attacked by both land and water. The Crown’s armed steamers and barges played a crucial role in the invasion as they carried Crown forces and supplies up the Waikato River and into the Waipaa River, and shelled Waikato defences:

(6)

In December 1863, Crown forces occupied Ngaaruawaahia, the home of the King and the political centre of the Kiingitanga. During the war, many communities who supported the Kiingitanga were driven out of the Waikato. In 1864-65 military settlements, including Hamilton and Cambridge, were established on the Waikato River, and also on the Waipaa River:

(7)

Confiscation of Waikato lands followed in 1865. The Waikato confiscation area extended from the Hauraki Gulf to Karapiro in the east, via Pukekura, Oraakau and the Puuniu River to the south, and from Whaingaroa (Raglan) to Te Puuaha o Waikato in the west:

Waikato-Tainui Experience of Raupatu

(8)

From the time of the Raupatu, the Crown assumed control of, and exercised jurisdiction over, the Waikato River. Waikato-Tainui were excluded from decision making: nor were they consulted as to their understanding of the River and its ecosystems. Waikato-Tainui rights and interests (whether at law, equity, custom or by the Treaty of Waitangi or otherwise), and the authority and control that they exercised to protect and ensure the well-being of the River and its resources, were denied:

(9)

Following the Raupatu and the cessation of hostilities, new settlers occupied the confiscated lands, and farms and towns were developed along the Waikato River. The River was used for farming, coal mining, power generation schemes, the discharge of waste, and domestic and industrial abstraction. The wetlands were drained, flood protection schemes were initiated and sand and shingle were removed. While all of these uses of the Waikato River contributed to the economic growth of New Zealand, they also contributed to the pollution and deterioration of the health of the Waikato River and have significantly impacted on the fisheries and plant life of the River:

(10)

Though they have continued to assert their mana whakahaere in order to protect the Waikato River and all its resources under the mana of the Kiingitanga, according to their tikanga, Waikato-Tainui believe that their ability to meet their obligations to the Waikato River, as their Awa Tupuna (Ancestral River), and to ensure its wellbeing, has been severely compromised. Waikato-Tainui feel this sense of injustice as strongly today as they did in the past:

Waikato-Tainui Commitment to the Search for Justice

(11)

In the changing legal and political landscape of New Zealand, Waikato-Tainui have always maintained the importance of their unique relationship with the River, and the need to respect and restore its wellbeing:

(12)

Robert Te Kotahi Mahuta, who led the Kiingitanga search for justice from the 1970s, appealed against the granting of water rights for the Huntly Power Station, at a time when little consideration was given to Waikato-Tainui values and rights. From 1985, a new commitment by the Crown to addressing historical grievances brought hope to Waikato-Tainui that their Raupatu claim, which affected both lands and the River, might be resolved. Waikato-Tainui negotiated their claim directly with the Crown and reached settlement in 1995, excluding and preserving their claims in respect of the Waikato River:

(13)

From the late 1980s, Waikato-Tainui also sought to protect the River, and their Raupatu claim, through negotiation with the Crown, and through the courts, from the impact of the Government’s policy of privatisation of assets and corporatisation. In particular, Waikato-Tainui were concerned that their interests in the River would be depleted and that this would further alienate Waikato-Tainui from the River. The Crown agreed not to transfer water rights, issued in perpetuity, to any State enterprise. The new resource management regime included limits for the period for which water rights could be granted:

(14)

The Resource Management Act 1991 gave regional and local authorities substantial functions and powers over natural resources, including the power to grant resource consents for River use. The Act did not, however, provide for protection of te mana o te Awa and te mana whakahaere of Waikato-Tainui. Since the Act came into effect, Waikato-Tainui have been involved as respondents in many consent hearings, seeking conditions which would protect the River:

(15)

Negotiations with the Crown were commenced by Robert Te Kotahi Mahuta on behalf of Waikato-Tainui in 1999. Following his death, they recommenced in 2005, leading to the deed of settlement and the Kiingitanga Accord between the Crown and Waikato-Tainui dated 22 August 2008:

(16)

From the 1860s to the present, Waikato-Tainui have continually sought justice for their Raupatu claim and protection for the River. The principles of te mana o te awa and mana whakahaere have long sustained the Waikato River claim together with the principles described in the Kiingitanga Accord, and those principles underlie the new regime to be implemented by this settlement:

Crown Acknowledgements

(17)

In summary, the Crown acknowledges:

(a)

that the historical Waikato River claims by Waikato-Tainui arise from the 1860s raupatu and its consequences; and

(b)

that the Crown’s 1863 invasion by both land and the Waikato River was a double blow to Waikato-Tainui; and

(c)

that the Crown’s breach of the Treaty of Waitangi denied Waikato-Tainui their rights and interests in, and mana whakahere over, the Waikato River; and

(d)

that Waikato-Tainui never willingly or knowingly relinquished their rights and interests in, or authority over, the Waikato River; and

(e)

the importance to Waikato-Tainui of the principle of te mana o te Awa; and

(f)

to Waikato-Tainui the Waikato River is a tupuna which has mana and in turn represents the mana and mauri of Waikato-Tainui; and

(g)

that to Waikato-Tainui, the Waikato River is a single indivisible being; and

(h)

that for Waikato-Tainui, their relationship with, and respect for, the Waikato River gives rise to their responsibilities to protect the mana and mauri of the River and exercise their mana whakahaere in accordance with their long established tikanga; and

(i)

that for Waikato-Tainui, their relationship with, and respect for, the Waikato River lies at the heart of their spiritual and physical wellbeing, and their tribal identity and culture; and

(j)

that the Crown has failed to respect, provide for and protect the special relationship of Waikato-Tainui with the Waikato River; and

(k)

that the deterioration of the health of the Waikato River, while under the authority of the Crown, has been a source of distress for the people of Waikato-Tainui; and

(l)

that the pollution, degradation and development of the Waikato River, its lakes, streams and wetlands have caused the decline of once rich fisheries that, for generations, had sustained the people’s way of life and their ability to meet obligations of manaakitanga, and this is a further source of distress; and

(m)

that the Crown respects the deeply felt obligation of Waikato-Tainui to protect te mana o te awa; and

(n)

that the Crown seeks a settlement that will recognise and sustain the special relationship of Waikato-Tainui with the Waikato River; and

(o)

that the Crown undertakes to assist and work with Waikato-Tainui to restore their mana whakahaere; and

(p)

that Waikato-Tainui wish to promote the concept of a korowai to bring the River tribes together as an affirmation of their common purpose to protect te mana o te awa.