The stage two hearings for Wai 2660 - Marine and Coastal Area Act (MACA) inquiry were held in Wellington in 24 to 26 May.

At this hearing Ngātiwai represented by our legal counsel Paul Wilson of Henderson Reeves and an expert RMA Witness, Sarah Shaw, present the evidence to the Waitangi Tribunal. 

Sarah Shaw born and raised in Whangārei, is a qualified planner and lawyer specialising in Resource
Management, was introduced to our case by Paula Wilson to bring her expertise to challenge the Crown's MACA legislation.

In her evidence Sarah drew on her more than 20 years experience in RMA and local government policy, plan making and procedures to show the relationship between the MACA and the RMA, highlighting that any rights able to be won under the MACA are likely to be nullified by resource consents and other prioritized activities.

So as a Board we challenge why have MACA?

Last month 13 applicants of Whakatohea around Opotoki had their rights and interest in the foreshore and seabed recognised in a judgment in the high.

This was a unexpected but fantastic outcome for hapū MACA applicants in the High Court judgment seeing them awarded customary marine title over the Takutai Moana area in Opotiki.

The decision is significant in that the court has found that territorial local authorities providing resource consents to people to use foreshore and seabed doesn't extinguish Māori ownership and rights to the same foreshore and seabed subject of that resource consent.

The Whakatōhea High Court case has now set a precedent for Māori rights and interest in their foreshore and seabed.

The Ngātiwai Trust Board welcomed the Waitangi Tribunal’s Stage 1 Report on the WAI 2660 Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry released on 30 June 2020.

The Tribunal found that the Crown had breached the principles of the Treaty of Waitangi in terms of partnership and active protection. As a result the Tribunal recommended that 100% of the reasonable costs of applicants should be met by the Crown and that Legal Aid be looked at further as a means of administering the costs.

This inquiry has been of huge importance to Ngātiwai as the takutai moana is central to the Ngātiwai identity as a people. The 2011 MACA Act established two paths for Māori including Ngātiwai to establish customary title in the takutai moana – either by applying to the High Court or by direct engagement with the Crown.

Stage 1 of this inquiry looked into the procedural and resourcing (i.e. funding) regime for Māori applicants seeking to establish customary rights under the MACA Act. In the hearings held in Wellington in March and August 2019 Ngātiwai claimants gave evidence relating to confusion of the MACA processes, the lack of consultation, the significant financial burden they had experienced with the Crown’s inadequate funding
regime for applicants, the Crown’s lack of clear policies and procedures for funding, and the MACA regime itself which was viewed as creating dissension amongst applicants.

The Tribunal concluded that that many aspects of the Crown’s procedural and resourcing regime fell well short of Treaty compliance. The Tribunal went on to say: “this is particularly regrettable given the context in which the Marine and Coastal Area (Takutai Moana) Act was developed– as a replacement for the controversial Foreshore and Seabed Act 2004, which left such a damaging imprint on Māori– Crown relations and the social fabric of Aotearoa New Zealand.”

The Tribunal’s specific recommendations included the Crown considering the current Legal Aid scheme as a suitable model for funding applicants and amending the Legal Aid scheme to accommodate marine and coastal area applications.

The Tribunal also requested that the Crown work with applicants to urgently address the policy vacuum that continues to impede the Crown engagement pathway – a necessary first step in achieving greater cohesion between the High Court application and direct
engagement pathways which the Tribunal considered fundamental.

In referencing its recent Hauraki Settlement Overlapping Claims Inquiry Report (2019) recommendations, the Tribunal also recommended that the Crown improve its support for groups seeking to resolve overlapping interests in MACA, so that applicant groups could reach resolution in a timely and tikanga-consistent manner.

In Stage 2 the Waitangi Tribunal will examine to what extent, if at all, are the MACA Act and Crown policy and practice inconsistent with the Treaty in protecting the ability of Māori holders of customary marine and coastal area rights to assert and exercise those rights.

The Board and other claimants filed their evidence for stage 2 of this inquiry in August 2020 with Northland hearings scheduled to be held at Whitiora Marae, Te Tii, Kerikeri between 28 September and 2 October 2020. Nau mai, haere mai e te iwi.

In October 2017 the Waitangi Tribunal released their report on the Ngātiwai Mandate Inquiry. The Tribunal found that the Crown breached:

• The principle of partnership and the duty of active protection by failing to protect actively the tino rangatiratanga of the hapū included in the Deed of Mandate; and
• The principle of equal treatment in relation to the hapū who remain within the mandate and have no realistic prospect of being able to withdraw compared with those hapū who were earlier allowed by the Crown to settle separately or that have been released from the mandate without explanation.

As a result, the Tribunal recommended that negotiations be paused so that mediation or facilitated discussions take place to debate the unsatisfactory elements of the Deed of Mandate.  If agreement is reached on a pathway forward then the Deed of Mandate should be amended and re-submitted to the parties, including the 12 hapū listed in the mandate for endorsement or rejection.  In the event of rejection by the parties the Tribunal then recommended withdrawal of the mandate and the setting up of a new entity such as a Rūnanga or taumata to represent all the hapū and groups in the inquiry district, whether or not they are Ngatiwai.  The Tribunal refers to this second process as the longer route.  In either case the Tribunal recommended that the Crown should fund these processes.

In February 2019, the Board approached the Minister for Treaty of Waitangi Negotiations to request funding support for the mediation recommended by the Waitangi Tribunal.  We were then advised by the Minister to work with Crown officials to provide them with sufficient information to form the basis for funding to be approved.  We also asked that hapū be provided with independent funding to participate in the mediation on an equal footing.
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In September 2019, the Board wrote to update claimant hapū advising them of the funding that had been approved by the Minister for the Ngātiwai Trust Board to support the proposed mediation process including the costs of mediators/facilitators and other costs.  In May 2020, the Crown wrote to the hapū claimants advising them of their independent funding approval.
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As a result the Board have been working to reach out to request hui with hapū claimants either informally or formally to begin discussions about the proposed mediation.

In December 2019, the Waitangi Tribunal released their report on the Hauraki Settlement Overlapping Claims Inquiry. The Tribunal found that the Crown:

• Acted inconsistently with the Treaty principles of partnership and active protection;
• Had failed in its duties to act honourably and in good faith, and to avoid creating fresh grievances; and
• Failed in its obligation to protect or preserve amicable tribal relationships.

As a result, the Tribunal found that the Crown had prejudicially affected Ngātiwai and recommended that:

• the legislation giving effect to the Pare Hauraki Collective Settlement Deed, and the individual Hauraki iwi settlement deeds, do not proceed until the contented redress items have been through a proper overlapping claims tikanga-based process; and
• that the Crown, when undertaking such a process, fully commits to and facilitates consultation, information-sharing, and the use of tikanga-based resolution processes that reflect the principles identified by the Tribunal.

​Since the beginning of the year we have been actively communicating with all parties including the Crown and Hauraki groups.  A letter was sent to the Prime Minister in January where we sought assurance that the Tribunals recommendations would be followed. We also requested full Disclosure of all Current Overlapping Redress. We received a response from the Minister in February confirming that he does not intend to progress Hauraki settlement legislation and that his strong preference is to support and encourage iwi-led tikanga-based engagement on the disputed redress.

During March we went into the COVID-19 lockdown and as a result refocused our attention on our response to the pandemic and supporting our people. However, we did manage to keep abreast of Zoom hui taking place between Hauraki groups and Ngāti Manuhiri which resulted in a kanohi ki te kanohi hui after COVID-19 travel restrictions were relaxed. Ngāti Manuhiri have indicated that they are confident to get to resolution of their issues shortly.
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In May the Board resumed all pre-COVID workflows and have written to all the Hauraki groups individually to outline our proposal for how a tikanga process could be advanced in a manner that affirms the mana of all parties.  Briefly the proposal includes bringing our tikanga tohunga (experts) together to co-design the process before we engage each other on the disputed redress. 

Hauraki Overlapping Claims

On Tuesday, 17th December 2019 the Waitangi Tribunal released their report on the Hauraki Overlapping Claims Urgent Inquiry. The affected hapū and iwi claimant groups came together to hold the Crown to account for their implementation of the Overlapping Claims Settlement process with Hauraki Iwi.

The Ngātiwai Trust Board’s Treaty Claims Committee Chairman, Aperahama Edwards says, “This report validates the claims we have made and affirms the rightful place of tikanga Māori in resolving our overlapping interests”.

In April 2019, Ngātiwai uri travelled to Wellington to defend the mana of their hapū and iwi at Waiwhetu Marae in front of the Waitangi Tribunal. Along with other groups in a similar position, Ngātiwai asked the Tribunal to look into the Crown’s flawed overlapping claims policies, practices and processes that was set to offer redress within the Ngātiwai rohe to iwi from the Hauraki district.  At the heart of the claim was the mana of the iwi of Ngātiwai.

“Our claim to the Waitangi Tribunal was upheld – this is a win for the important role of tikanga Māori in working in the Treaty negotiations space”, states Aperahama Edwards.

The Waitangi Tribunal said in summarising the findings and recommendations:

•  “Having thus found that the Crown acted inconsistently with the Treaty principles of partnership and active protection; failed in its duties to act honourably and in good faith, and to avoid creating fresh grievances; and failed in its obligation to protect or preserve amicable tribal relationships, we find that the Crown had prejudicially affected…Ngātiwai. Accordingly, we recommend:
• That the legislation giving effect to the Pare Hauraki Collective Settlement Deed, and the individual Hauraki iwi settlement deeds, does not proceed until the contented redress items have been through a proper overlapping claims process…”

The tribunal elaborated on what a proper tikanga-based process would involve and we agree with the tribunal that a tikanga-based process must take place early on and that all parties should participate in the design of the process.
 
Ngati Rehua uri and WAI 1544 claimant, Huhana Lyndon says, “The Urgency was called because once again the Crown sought to settle our hapū and iwi interests without our consent. Further, despite our calls for time to work through our issues, the Crown ignored our position and pushed forward with Hauraki for full and final settlement. This undermines our rangatiratanga guaranteed under Te Tiriti o Waitangi”.

The Tribunal recognised that Ngātiwai have expressed a genuine intention to try and resolve the issues raised in this inquiry though tikanga, and suggested the Crown should do all it can to facilitate this process, including by providing funding, administrative support, access to facilitators or mediators, and more.

Huhana Lyndon says, “Tikanga Māori is our foundation, the Crown through their application of the Red Book approach to Treaty negotiations fails to allow hapū and iwi to move at their own pace and time”.

Aperahama Edwards says, “Our experience in the Crown’s overlapping claims process was that tikanga was never engaged in early-on and we were certainly not invited to be part of designing what that tikanga process looked like.  With these findings from the Tribunal, I would hope the Crown can go back and get this fundamentally right”.

“I am proud of our people, particularly the determination and mana they have shown through this.  It is not easy to collectivise yourselves logistically and financially, but it was important that we did so to ensure that the mana of Ngātiwai was upheld.  For me it shows that when our people need to come together as one to defend our rights, that we are able to do so”.

Ngātiwai uri in the affected areas will now meet internally to discuss how to approach the next steps. 

Mandate Mediation
During the last quarter of the year the Board continued to work through the Waitangi Tribunal’s recommendations for an agreed mediation process to take place, funded by the Crown.

Funding for mediation and making this available and fair for all involved has always been a priority for the Board.  The Board have made recommendations that the Crown independently and directly fund claimants so that all parties can equally participate in mediation.  The Board and the Crown have written to claimants in the inquiry inviting them to prepare their funding request.

The Board and the Crown have been communicating with claimants to begin this process, and are currently in communication with hapū Patuharakeke, Te Waiariki, Ngāti Korora/Ngāti Takapari and Te Whakapiko hapū o Ngāti Manaia.  The Board is also conscious of our Whangaruru whanau claimants and encourage them to discuss with Te Arawhiti their options regarding funding.

Hui will need to be held prior to any mediation beginning for all parties to agree on the Terms of Reference for the mediation (i.e. agree facilitators/mediators, specialist advisors, number of hui, venues, milestones, etc.) as recommended by the Tribunal.
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With the work that is being done, and the communication beginning to happen between all parties there are encouraging signs that the process of trying to begin mediation is moving in a positive direction. 

Marine and Coastal Area Act Update
Ngātiwai MACA Applicant Hui
The Ngātiwai Trust Board Treaty Claims Committee hosted a MACA hui on 13th November 2019 at the Ngātiwai Trust Board.  The purpose or kaupapa of the hui was to discuss, “What is the best approach to take to the MACA Act?”.

Over recent times traversing our own journey through a Treaty Settlement, we as an iwi have had our challenges in being able to work together collectively or collaboratively.  However with this kauapapa and the potential impact that it could have on our local whanau, hapū and our iwi, it was pleasing to see that we could come together to discuss the MACA, with a very good turnout of approximately 30 participants.

Discussions were very respectful with everyone being able to present their applications to the hui and talk about where they are up to in advancing them. A number of positive suggestions were made but a lingering concern was raised that the Trust Board was potentially attempting to take over their applications. 
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The Board’s position in relation to all Ngātiwai MACA applications in the High Court has been to support “in principle” those applications and to provide a protective blanket for any Ngātiwai whanau, hapū or marae who were unable to file their own applications by the deadline of 3rd April 2017. The Treaty Claims Committee has been working to identify who those groups are, to offer to include them in the Board’s application.  

Historical Research
Tony Walzl of Whalghan Partners has been engaged by the Board to provide technical support in collating Ngātiwai Historical Research for the purpose of MACA.  The Board contracted Tony to produce a report that contains information on land tenure within the Ngātiwai rohe by identifying things like Maori land titles that is adjacent to the Common Marine and Coastal Area and for land that has gone out of Maori title and when this occurred.  Land ownership or retention since 1840 is a significant factor in meeting the tests under the MACA Act, which requires that applicants must show that they have continuously occupied or used the coastal marine area in question since 1840.
 
Oral History Research
The Treaty Claims Committee begun work with Tony Walzl in November 2019 to start collecting oral history interviews.  Oral history research is a key piece of evidence to prove another test under the Act which requires that the area in question has been used or occupied since 1840 AND that any customary rights have been exercised in accordance with tikanga.  This work will continue during 2020.
 
MACA Kaupapa Inquiry:
The Marine and Coastal Act Kaupapa Inquiry - Stage 2 hearings, are expected to take place in Te Tai Tokerau in April or May 2020.
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The Treaty Claims Committee will be holding another MACA hui early in 2020, and it is hoped that as a collective of Ngātiwai whānau, hapū and Iwi that we continue to work together collaboratively in opposition to the MACA Act and that we can achieve a positive collective approach to and submit strong evidence in this inquiry. 

Mandate Mediation
​Since the Tribunal released its findings on the Ngātiwai Trust Board mandate in October 2017 the Board has discussed these findings and recommendations at hui-a-iwi and kaumātua hui over the past two years.

Discussions have been focused on the Board not being “fit for purpose” and what “fit for purpose” actually looks like; hapū autonomy, hapū rangatiratanga, the consent of hapū to be included in the mandate and the origins of Ngātiwai and the Ngātiwai Trust Board.

As the Tribunal recommended a mediation process funded by the Crown as a next step, the Board has been working on developing draft proposals consistent with the Tribunal’s recommendations for the Crown to fund. The Crown has agreed to support the Ngātiwai claimant community coming together to resolve the current mandate issues with funding to be made available for mediation costs.

The Board realise that working through the recommended mediation process as set out by the Waitangi Tribunal will have its challenges. We also realise that for all parties to enter any mediation with confidence, everyone needs to enter into these having being fairly resourced and funded. So discussions that the Board have had with the Crown about mediation have focused on ensuring that funding allowances are made for all parties.

​These will be tough discussions to have, but the Board is genuine in its desire to enter meaningful mediation in good faith. 

Waitangi Tribunal Hearings

Hauraki Overlapping Claims Inquiry:
The Board filed its reply submissions to the Crown’s closing submissions on Friday 12 July 2019.

In our closing submission we concluded that the Crown has failed to protect the interests of Ngātiwai during the course of the negotiations and overlapping claims processes it undertook with Hauraki. During their negotiations with Hauraki, the Crown has inappropriately acknowledged Hauraki customary interests within the Ngātiwai rohe, and recognised mana whenua and mana moana where it does not exist.

We feel the Crown has not acted in accordance with tikanga and have stated that it cannot ensure tikanga is adhered to even though it has an obligation to ensure tikanga is followed.  We believe through this process, the Crown has allowed the takahi of the rangatiratanga of Ngātiwai.

Through this process the Crown has not acted fairly and impartially towards Ngātiwai. The Crown favoured Hauraki when agreeing with Hauraki that issues between iwi were irreconcilable. This has allowed Hauraki to have an unfair advantage over Ngātiwai and resulted in redress that prejudices Ngātiwai. The Crown has further created divisions and damaged the relationships between Ngātiwai and the iwi of Hauraki.

We now await the findings and recommendations of the Waitangi Tribunal.  As an outcome to these hearings, Ngātiwai would like to engage in a tika and pono tikanga process on the marae with the tribes of Hauraki to resolve these important issues.  Ngātiwai would like to korero with Hauraki to understand why their proposed redress extends so far into the Ngātiwai Rohe and why they are continuing to do so without the consent of Ngātiwai.  Through a tikanga process we would like to discuss why we feel the proposed Hauraki redress has undermined the mana whenua, rangatiratanga, mana moana and tikanga of Ngātiwai.  Through this process it is hopeful that we can heal the divisions and damaged relationships both within Ngātiwai and between Ngātiwai and the iwi of Hauraki; and also the partnership between the Crown and Ngātiwai to move forward in a positive way that all parties are happy with.

The submissions have been uploaded to the Board’s website and can be viewed here: https://bit.ly/32LVgUh

This now concludes the Board’s participation in the urgent inquiry and the next step is for the Tribunal to release its report, findings and recommendations.

​WAI 2840: Hauraki Overlapping Claims Inquiry While working through the MACA Stage 1 hearings, the Board was also preparing to appear again at the Waitangi Tribunal hearings from 8 – 12 April in Wellington. These hearings (WAI 2840) are an urgent inquiry into the Crown’s Treaty Settlement policy regarding overlapping claims and the proposed redress in relation to the Hauraki Collective, Marutūāhu Collective and individual Hauraki iwi settlements.

A pōwhiri for the hearings took place on Sunday 7th April at Waiwhetu Marae, Lower Hutt and the hearings began on Monday 8th April.

The Board’s representatives, witnesses and supporters including our whānau from Aotea, attended the hearings at Waiwhetu Marae in unison. Whānau based in Wellington also attended in support. Ngātiwai presented a very strong presence at the hearings together with Ngāti Manuhiri.

Kiri Tahana from Kahui Legal set the stage for Ngātiwai witnesses with compelling opening submissions. Ngātiwai Trustee for Matapouri Aperahama Edwards and Ngātiwai Chairman Haydn Edmonds were cross-examined and at the last minute the Crown and counsel for Hauraki chose not to cross-examine Ngātiwai Treaty Claims Manager Tania McPherson.

Treaty Claims Committee Chairman, Aperahama Edwards says, “It was great to have the Ngātiwai presence seen and heard, we really appreciated the tautoko from our whānau in Wellington and from across the motu that were able to attend."

“Going through these two hearings simultaneously has had huge impact on our Board and our wider iwi.”

“The time, effort and costs that has gone into defending our Mana is huge, but we cannot sit back and watch our Mana Moana and Mana Whenua be given away by the Crown without anyone having a conversation with us on our marae first.”

 “So we had to travel, we had to fight this injustice and we had to defend the Mana of our people.”

“We would like to thank Kiri and all the team from Kahui legal who presented our case so professionally and ensured that the mana of our iwi was upheld.”

The timetable for the hearings was constantly changing up to and throughout the hearings but live-streaming links to the hearings were provided on a daily basis for claimants and was also screened at the Trust Board's offices.

Although the kaupapa was not a happy one feedback received included:
• Ngātiwai has the strongest case both in terms of poor Crown process and severity of redress, particularly on Aotea.
• Ngātiwai and Ngāti Manuhiri provided a united front with our legal counsels tag teaming in the cross-examination.
• The Crown admitted it had made a number of mistakes in relation to the Ngātiwai involvement in the overlapping claims processes.
• The Tribunal’s questioning of the witnesses demonstrated it was alive to the Ngātiwai case.
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Next steps:
• Claimants closing submissions are due on 8th May 2019
• Crown and interested parties closing submissions are due on 5th June 2019.
• Claimants reply submissions are then due on 17th June 2019.
• The Tribunal's report is likely to take several months to complete given the complexity of the claimants cases.