Tauranga Moana: Report on the Post-Raupatu Claims

On 4 September, the Waitangi Tribunal released its report Tauranga Moana, 1886-2006: Report on the Post-Raupatu Claims.  This report addresses the second stage of the Tribunal’s inquiry into the Tauranga claims.  It follows the Tribunal’s 2004 report Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims.
The Report on the Post-Raupatu Claims details the significant land loss of Tauranga Māori that took place in the last decades of the nineteenth century, following the major confiscations.  The report also describes the various ways in which Crown actions continued to erode the land base of Tauranga Māori throughout the twentieth century.  
The Tribunal addresses a number of key areas of concern, which are closely associated with the loss of control over land and natural resources.
Land alienation
The Tribunal notes that policies such as those which sought to identify ‘idle’ Māori land that would be suitable for settlement by Pakeha and a range of public works takings resulted in a total loss of around 4960 acres (2008 ha) between 1886 and 2006.  The Tribunal found that the Crown had breached the Treaty principle of active protection by facilitating this alienation of land and failing to ensure that Tauranga Māori retained a sufficient land base for their foreseeable needs.  Furthermore, the inadequate efforts of the Crown to investigate grievances relating to land alienation breached the principle of good faith.  The Crown should also have ensured that compulsory acquisition of Māori land under the public works process was limited to truly exceptional circumstances.  Instead, compulsory acquisition was used for a wide range of purposes, often taking more land than was required for the purpose.
Land development constraints
The Tribunal also considered the Crown’s land development schemes between 1929 and 1975, which aimed to assist some Tauranga Māori to develop their land.  Though the Tribunal commends the intent behind these schemes, it found that, “these efforts did not, in the main, succeed in overcoming the competitive disadvantages faced by Māori land in multiple ownership”. Often, the owners of the land were excluded from meaningful involvement in the management of the land under these schemes and, in some cases were locked into long term arrangements which provided limited financial return.  Māori aspirations for land development have also been hampered by the failure to take into account the special characteristics of Māori land in rating and valuation processes and by the historical lack of opportunity for Māori political representation on local authorities. The report states that, in order to act consistently with Treaty principles, the Crown must now find a way to assist Tauranga Māori to maintain their current land base and to develop that land. 
Access to natural resources and environmental issues
Land loss also had an impact on the ability of Tauranga Māori to access other natural resources.  The traditional pattern of use-rights in the area, whereby each hapū would have access (and obligations of maintenance) in respect of both inland and coastal resources was constrained as European settlement placed pressure on easily farmable land.  Access to natural resources has also been affected by damage to the environment and degradation of ecosystems.  The draining of wetlands and deforestation were issues of particular significance for the way of life of Tauranga Māori.  The Tribunal notes that the Resource Management Act 1991 provides mechanisms for a more Treaty-consistent management of the local environment but points out that such mechanisms have not been effectively or fully utilised in practice and that more active Crown involvement is required to ensure the full potential of the Resource Management Act provisions are realised.
The Tribunal notes that there have been wide-ranging consequences of the Crown’s failure to meet the requirements of Treaty principles in these areas (and others, such as the maintenance of cultural heritage).  Of particular concern to the Tribunal is the general socioeconomic status of Tauranga Māori.  The Tribunal is careful to recognise that there are many factors which contribute to socioeconomic outcomes.  However, this report does find that past Crown policy and action, especially those policies and actions resulting in significant land loss, have contributed to the marginalisation of Tauranga Māori.  The Tribunal recommends that redress for Treaty breaches should therefore take into account the lost opportunity costs resulting from the economic marginalisation of Tauranga Māori and concludes:

Nothing less is due to the iwi and hapū of Tauranga Moana, if they are to climb back to a point of substantive equality from which they can exercise a real degree of tino rangatiratanga over their lives and resources, pursue their aspirations, and realise their full potential to contribute to the well-being of the region and the nation as a whole.

Marine and Coastal Area (Takutai Moana) Bill

The legislation to repeal and replace the Foreshore and Seabed Act is due to have its first reading this week.  The new Marine and Coastal Area (Takutai Moana) Bill will essentially give effect to the government’s preferred option for addressing foreshore and seabed issues, as signalled in the discussion document released at the end of March this year.
I have argued in previous posts that the recent proposals indicate that there has been no change in the Government’s attitude to Maori interests in the foreshore and seabed since the enactment of the Foreshore and Seabed Act.  Neither does this Bill indicate any such change.  Unfortunately, the Bill maintains many of the discriminatory aspects of the Foreshore and Seabed Act.  It still, explicitly, treats Maori interests as a lesser form of title than freehold title.  Until the Government’s attitude to Maori customary interests changes, it is going to be difficult to achieve a durable resolution of these issues and impossible to achieve one that is just.
Moana Jackson has pointed out many of the discriminatory aspects of the Bill in his latest primer on the subject.  There are other, often connected, aspects of the Bill which appear to me to be extremely problematic. For example, I find it strange that the new, statutory, “customary marine title” only exists where a particular part of the foreshore and seabed has been exclusively used and occupied, and yet the title itself does not provide for such exclusive rights.  Surely, if the exercise of customary rights is demonstrated by exclusive use and occupation, then exclusive use and occupation ought to be able to be recognised under this new form of customary title.  Alternatively, if exclusive use and occupation is not part of customary title, why would you need to prove exclusive use and occupation to have that title recognised?  If nothing else, this suggests that the legislative “customary marine title” is to be quite different from common law customary or aboriginal title, as applied in places such as the United States and Canada, where the general principle has long been to give legal recognition to the customary rights and activities that can be identified and demonstrated.  The Foreshore and Seabed Act may have already taken us down that road, but this is another indication that the general direction of that Act is being maintained by the Marine and Coastal Area (Takutai Moana) Bill.
I am also pretty under-whelmed by the way that mana tuku iho has been recognised.  The explanatory note states that “the mana tuku iho of iwi and hapū is explicitly recognised in the Bill”, though the only reference to mana tuku iho in the Bill is contained in Clause 4, which sets out the purpose of the legislation.  This may be symbolically important, which is not to say that this inclusion in the purpose provision has no teeth whatsoever.  In any case, as I have previously suggested, even primarily symbolic changes may help to open up a more productive discussion of Maori interests in the foreshore and seabed, However, the fact that this reference is not supported by more specific provisions, laying out some of the practical effects of the recognition of mana tuku iho suggests that the Government is not yet ready to engage in that more productive discussion.