By the Hauraki Mandated Representatives The Hauraki Māori Trust Board, John McEnteer and Russell Karu

Transcription

1 SUBMISSION TO MA ORI AFFAIRS COMMITTEE ON THE WAIKATO TAINUI RAUPATU CLAIMS (WAIKATO RIVER) SETTLEMENT BILL By the Hauraki Mandated Representatives The Hauraki Māori Trust Board, John McEnteer and Russell Karu 1 1 MAR 2009I This submission is made by the Hauraki Mandated Representatives the Māori Trust Board, John McEnteer and Russell Karu on behalf of Hauraki iwi: Ngāti Hako, Ngāti Hei, Ngāti Maru, Ngāti Paoa, Patukirikiri, Ngāti Porou ki Harataunga ki Mataora, Ngāti Pukenga ki Waiau, Ngāti Rahiri Tumutumu, Ngai Tai, Ngāti Tamatera, Ngāti Tara Tokanui and Ngāti Whanaunga (together the iwi of Hauraki), together with the descendants of Huarere and Tamatepo ("Hauraki"). The Hauraki Māori Trust Board is the democratically elected representative of the 12 iwi of Hauraki, and together with John McEnteer and Russell Karu was given a mandate to represent Hauraki to resolve Hauraki Treaty claims in Hauraki appreciates the opportunity to place their concerns before the Select Committee. 4 Hauraki supports the right of Waikato Tainui ("Waikato") to obtain redress from the Crown to settle their Waikato River Claim with the Crown, but this must not occur at the expense of Hauraki, their mana, lands and resources. The submitters wish to be heard on this submission, as the Waikato Tainui Raupatu Claims (Waikato River) Settlement Bill ("the Bill") fundamentally undermines Hauraki mana within their own rohe and undermines their right to tino rangatiratanga over their own land and resources. 6. For the purposes of this submission the contact details of the submitters are: JosieAnderson Chief Executive Officer " Hauraki Māori Trust Board PO Box 33 PAEROA... "... == ~... 't!, i~i _ Ph: D V

2 Page '2 EXECUTIVE SUMMARY The Bill results in substantial and exclusive rights being recognised for Waikato and other iwi in the western portion of the Hauraki rohe. This recognition, and the exclusion of Hauraki from any meaningful role in the regime established over the catchment, is a fundamental challenge to Hauraki. Specifically, the Waikato River settlement, given effect by the Bill, unilaterally revisited Hauraki interests previously recognised in the Waikato Raupatu Claims Settlement Act 1995 ("the 1995 Act"), and has the effect of marginalising Hauraki within their own rohe In particular: 7.1 The granting of substantive and extensive powers and functions to Waikato and other iwi as Guardians of the Waikato Committee over parts of the Hauraki rohe is completely inconsistent with the right of Hauraki to maintain tino rangatiratanga over their own lands and resources; 7.2 The granting of pre eminent status to Waikato, through its leading (and at times exclusive) role in the statutory management mechanisms in the Bill undermines the status of Hauraki as mana whenua in the eastern part of the settlement area; 7.3 The existence of comprehensive and powerful statutory management mechanisms in respect of the broadly defined Waikato River will severely limit the type and scope of redress that Hauraki will be able to access in their own Treaty settlement; and 7.4 Even the name of the Bill represents a significant change in approach by the Crown. HAURAKI INTERESTS The customary rohe of the Hauraki iwi (the submitters' constituents) is detailed on the attached Map 1 in blue ("the Hauraki rohe"). D V

3 Page3 The western extent of the Hauraki customary rohe is well known to both the Crown and to Waikato and has been previously acknowledged in the 1995 Act, and confirmed by the Waitangi Tribunal as detailed below. The Waikato Raupatu Deed of Settlement and the 1995 Act 10. In 1995 as a result of submissions to the Select Committee by the Hauraki Māori Trust Board, two key changes were made to the Waikato Deed of Settlement ('the 1995 Deed"). Reference to Tainui was removed from the Bill and the title of the Bill was changed to the Waikato Raupatu Settlement Act 1995, and the Hauraki interests in the Maramarua lands were acknowledged, as detailed below: 10.1 The 1995 Deed acknowledged in Clause 17.3 that: The parties acknowledge that the Maramarua Lands are the subject of a competing claim by the Hauraki Māori Trust Board (Wai 373) The 1995 Act refers to the overlap area as the Maramarua Lands and specifically recognises that the Hauraki Māori Trust Board has claims in that area. The 1995 Act also states in s14(7) that no Order in Council shall be made removing the resumptive memorials from the Maramarua Lands, unless the Minister is of the opinion that a final determination or a final recommendation has been made in respect of claims made by the Hauraki Māori Trust Board over that area. The Maramarua Lands area extends west to the stem of the Waikato River at Mercer, down to Ohinewai and Lake Waikare and east across to Maramarua The Hauraki Raupatu claims relate to the confiscation of the whole of the East Wairoa block and part of the Central Waikato block, as depicted in the attached Map 2 (which is from the Waitangi Tribunal's Hauraki report). Those claims are acknowledged in the 1995 Act which specifically excludes them from the definition of settled Raupatu clairns. Furthermore, the geographical area covered by the 1995 Deed and 1995 Act did not include any part of the block historically known as the East Wairoa block. D V

4 Page 4 Hauraki Regional Inquiry 11, The Waitangi Tribunal in the Hauraki Regional Inquiry, after considering evidence and submissions from Hauraki, Waikato and the Crown, concluded in chapter 5 of the Hauraki Report (released in 2006) that: The Hauraki claims in the Maramarua district clearly overlap the area within the Waitangi Tribunal claims which have been settled in the Waikato Raupatu Claims Settlement Act There is no need to determine a 'boundary' between Hauraki and Waikato as both had customary interests within the Maramarua district and share kin links and overlapping and intersecting rights along a border zone between the Waikato and Hauraki section of Tainui waka descendants. Waikato and Hauraki hapu retain their ancestral connections within the Maramarua district. [emphasis added] THE EXTENT OF THE OVERLAP 12. The area covered by the Waikato River settlement, proposed to be implemented by the Bill, is detailed on Map 1 in red. There is a substantial overlap in the area covered by the Bill and the Hauraki rohe ("the overlap area") the overlap area includes the Mangatangi, Ruaotehuia, Koteruato and Kopuera Streams and the Mangatawhiri, Maramarua and Whangamarino Rivers all of which fall within the broad definition of Waikato River in the Bill (Clause 6). In particular those parts of the Central Waikato and East Wairoa Blocks excluded from the 1995 Act have been included in the present Bill, however no basis has been identified as to why Hauraki interests in those blocks have now been ignored. 13. The western part of the Hauraki rohe should not have been included in the Bill, without the agreement of Hauraki and/or without substantial protections to recognise and protect the Hauraki interests. HAURAKICONCERNS 14, The Hauraki concerns with the Waikato River settlement were formally raised with the Crown in April The concerns have been repeated to both the Crown and Waikato on a number of occasions, but no meaningful response or process for addressing them has been provided. An urgent claim was filed by Hauraki in the Waitangi Tribunal in August 2008 alleging that the proposed settlement breached the D V

5 Page5 Crown's Treaty obligations to Hauraki and that there was no protection for the recognised Hauraki interests. A hearing was not convened, in part because of a registry error and also because discussions were already taking place and there was insufficient time for the Tribunal to consider the matter before its jurisdiction was removed through the introduction of the Bill. REDRESS 15. The most effective method to address these concerns is to remove the overlap area from the scope of the Bill, until the Hauraki interests have been suitably recognised, acknowledged and accommodated. It is the submitters' view that this is required, as far from the Crown retaining flexibility to accommodate the Hauraki interests if the settlement proceeds as set out in the Bill, the Deed provides at clause 15.8 that it "do[es] not permit the Crown to enter into a settlement that adversely affects the rights of Waikato". 16. It is submitted that the section of the Waikato River and its tributaries, catchments and watercourses downstream from Ohinewai and Lake Waikare, north to approximately Mercer, Pokeno and the Bombay Hills and east to Maramarua and the Hapuakohe ranges should be removed from the Bill, pending joint Waikato, Hauraki and Crown negotiations over how the aspirations of Waikato can be accommodated while protecting the interests of Hauraki iwi. In view of the fact that the 1995 dispute was not able to be resolved in a timely fashion, there should have been a more detailed mechanism for working through the claim issues. 17. While Hauraki acknowledges the importance to Waikato of the holistic management of the Waikato River (which also requires management of the paru entering the Waikato River from its catchments) Hauraki respectfully notes that the solution to their concerns is not the simple inclusion of an appointee by the Hauraki Māori Trust Board on the Guardians of the Waikato Committee. This is because the kaupapa of the Guardians is focused on the mana whakahaere of the Waikato River, sornething that is not part of Hauraki traditions and customs. This would mean that Hauraki would be required to uphold a Waikato iwi vision which is not consistent with the guarantee of tino rangatiratanga to Hauraki iwi over their lands and resources. In addition the allocation of one appointee to the Guardians of the Waikato Cornmittee DO V

6 Page6 (or the Waikato River Statutory Board) to Hauraki would not be sufficient, as Hauraki would be just one voice and have potential to be overruled by other appointees on the Committee, even if the matter related to the Hauraki rohe. SPECIFIC MATTERS 18. In addition to the fundamental concern that the inclusion of a significant part of the Hauraki rohe in a Waikato settlement is completely inappropriate, Hauraki also have a number of specific concerns in relation to other operative parts of the Bill. Those concerns are outlined below and relate to: 18.1 The title of the Bill; 18.2 The vision and strategy; 18.3 The Guardians of the Waikato Committee; 18.4 The Waikato River Statutory Board; and 18.5 The co management arrangements. The title of the Bill 19, The Bill should not include reference to Tainui in the title, nor should it refer to Waikato iwi as Waikato Tainui, as Tainui is the waka not the iwi and this is not a Tainui waka settlement. The Bill should simply be the Waikato Raupatu Claims (Waikato River) Settlement Bill, which is consistent with the title of the 1995 Act, which was changed as result of Hauraki Select Committee submissions on that point. Vision and Strategy 20, The vision and strategy is essentially the blueprint for all future dealings that affect the Waikato River (as that term is widely defined in the Bill) and is to be implemented, promoted and adhered to by the Guardians of the Waikato Waikato River Statutory Board. and the D V

7 Page7 21, The vision and strategy were developed by the Guardians of the Waikato without any Hauraki involvement, but upon the passing of the Bill will be deemed to be a National Policy Statement (under the Resource Management Act 1991) and Statement of General Policy (under the Conservation Act 1987, National Parks Act 1980, New Zealand Walkways Act 1990, Reserves Act 1977, Wild Animal Control Act 1977 and Wildlife Act 1953) and have effect throughout the western Hauraki rohe. It will also impact on all local authority plans within the settlement area, as local government are required to alter their own plans to give effect to the vision and strategy. This is unacceptable, for the primary reason detailed earlier, and because: 21.1 The effect of the vision and strategy being a National Policy Statement is substantial and ongoing as it will mean it is a key factor to be considered in any resource consent applications by Hauraki iwi, potentially meaning that Hauraki are prevented from utilising their own lands as a result of aspirations held by Waikato, that may not be shared by Hauraki; 21.2 Conversely, if Waikato wish to carry out an activity that Hauraki considers adverse to the environment, Waikato may still be granted consent if it is included in their vision and strategy (as local authorities are required to ensure their plans are consistent with the vision and strategy); 21.3 There is currently only one National Policy Statement in force in New Zealand (in relation to electricity transmission) and there are a number which are being considered in accordance with the statutory inquiry and consultation processes detailed in Part 5 of the Resource Management Act The vision and strategy has not been prepared in accordance with the restrictive requirements in the Resource Management Act 1991 and has instead been prepared by the Guardians of the Waikato Committee (with one public consultation period); 21.4 The requirement for local authorities to adjust their ovvn plans to be consistent with the vision and strategy will mean that any subrnissions that Hauraki make to those bodies will be considered subject to the Waikato vision and strategy; D V

8 Page The effect of the vision and strategy being deemed a Statement of General Policy is to provide further policy guidance to the Crown on the administration and management of its respective Departments. This has real potential to conflict with the manner in which Hauraki may consider particular areas should be managed and may have the effect of overriding Hauraki submissions or concerns in this regard; and 21.6 As with the National Policy Statement, the law requires that in the ordinary course of events a Statement of General Policy will undergo a substantial consultation process and analysis of competing interests before coming into effect. That has not occurred in relation to the vision and strategy. 22. The elevated status of a National Policy Statement and to a lesser degree a Statement of General Policy is such that it is completely inappropriate for the vision and strategy to be deemed to become these statements, as the vision and strategy have only undergone a single consultation process, which is significantly Statement detailed and rigorous than the statutory requirements for a National Policy and General Statement of Policy. less Guardians of the Waikato River 23. The Guardians of the Waikato River have extensive powers and functions vvhich they are entitled to exercise over the western part of the Hauraki rohe. The Guardians are also required to amend the vision and strategy at least once every 10 years The Bill requires the Guardians to consult the public in undertaking its review, but does not require Hauraki involvement or agreement to any amendment to the Vision and strategy. This is unacceptable given the Hauraki interests in the overlap area and for the following additional reasons: 23.1 The Guardians' role furthers the effective entrenchment of the Waikato vision and strategy, resulting in a continued undermining of the mana and aspirations of Hauraki within their own rohe; DO V

9 Page The establishment of the Guardians accords Waikato the ability to control and determine what is best for the western part of the Hauraki rohe, thereby abrogating the tino rangatiratanga of Hauraki; and 23.3 The Guardians are required by clause 17 of the Bill to "engage with other Waikato River iwi"to achieve its statutory purpose of, amongst other things, promoting the Waikato River and the vision and strategy. The requirement that the Guardians engage with Hauraki (as one of the Waikato River iwi) is inadequate and given that Hauraki are mana whenua in the eastern part of the area under the Bill, at the very least Hauraki consent should be required prior to any changes. 24. The term "Waikato River iwi"is used in relation to the Guardians and throughout the Bill, but it is not defined. The submitters consider themselves to be one of the Waikato River iwi, when reference to the Waikato River is made in its widest sense (as it is in the Bill), but they do not accept that the Guardians of the Waikato Committee in any way is representative of Hauraki as Waikato River iwi, as contended in the explanatory note to the Bill. Waikato River Statutory Board 25. The Statutory Board is a significantly stronger management mechanism than the Guardians and has representatives from only two parties Waikato and local government. The primary purpose of the Statutory Board is the promotion of Waikato and its relationship with and aspirations for the Waikato River. This cements the primacy of Waikato in respect of the Waikato River including within the overlap area in the eyes of local government and is completely inconsistent with the fact that Hauraki iwi are mana whenua in the eastern part of the area covered by the Bill. This will have a substantial and ongoing effect of undermining Hauraki iwi in their dealings with local authorities. 26. The ultimate consequence of the Statutory Board's role as promoter of Waikato will be the demotion of the Hauraki iwi interests in the western part of its region. This is unpalatable to Hauraki and completely unacceptable in a Treaty relationship, which Hauraki iwi like Waikato are entitled to have with the Crown. D V

10 Page 10 Co management Arrangements 27. The integrated river management plan, the Waikato environmental plan and joint working party have the same effect as other parts of the Bill they permanently elevate the status of Waikato above Hauraki within the western part of the Hauraki rohe. For the reasons outlined above that is unacceptable. In particular: 27.1 The integrated river management plan will involve Waikato in a cornbined approach with various Crown departments as well as local authorities, extending the reach of the Waikato vision across the Crown and continuing the undermining of the Hauraki position; 27.2 There is no statutory requirement for Hauraki interests to be considered in the integrated river management plan, yet Hauraki will be bound by the within their own rohe; and plan 27.3 The primacy that will be accorded to Waikato through their right to an invitation to participate in Resource Management Act 1991 planning documents is another tool that will elevate the Waikato interest above that of Hauraki, notwithstanding the mana whenua status of Hauraki in the Western part of their rohe. REQUEST TO BE HEARD IN PERSON 28. The submitters request the opportunity to address the Select Committee in Person. This matter is of fundamental importance to Hauraki, and as a result, Hauraki representatives are ready and available to attend a hearing before the Select Committee in Wellington at short notice, whenever is most suitable for the Committee. Select 29. This is the last chance Hauraki has to obtain protection for their interests in the western part of their rohe accordingly, it is appropriate and necessary that the submitters be heard on this matter. D V

11 Page 11 CONCLUSION 30. It is disappointing that, just as Hauraki interests were left unprotected in the original Waikato Treaty settlement, they are being left unprotected in the Bill. It is simply unacceptable that Hauraki is again required to seek last minute Crown protection for their interests, repeating in 2009 what had to be done in DATED at Paeroa this 23 day of February 2009 Toko Renata Te Taniwha Chairman of the Hauraki Māori Trust Board on behalf of the Hauraki Mandated Representatives D V

12 HAURAKI INTERESTS Map1 J Hauraki Tribal Rohe Waikato River Settlement Bill Area r Upper Waikato River Catchments \ \ \

13 Downloaded from 5,5 THE HAURAKI REPORT Izi O3 /3 r% C C/3 t I C/J CN % HAMILTON (Kirikirime) Figure 14: Waikato confiscated lands. Source: roll plan B43, DOSLI, prepared for the Sim commission,19e7, 2o8 Downloaded from ibunal.govt.nz