Statement to the United Nations Permanent Forum on Indigenous Peoples, 18 April 2023
By Anne Carter, Director, Wairarapa Moana ki Pouākani Incorporation, Aotearoa New ZealandHe
Pā Harakeke: He whakakīkī i ngā whāruarua1Wairarapa Moana ki Pouākani Incorporation is a Māori Land Incorporation from Aotearoa New Zealand.
We wish to share the impact and trauma for our people of the recent actions of the New Zealand Government on our individual and collective wellbeing.
We have been denied access to justice by the New Zealand Government.
Our story is simple. The New Zealand Government took some land of ours under the Public Works Act, and now we want it back.
We had a right to seek the return of this land under New Zealand domestic law.
This right was confirmed by the New Zealand Supreme Court, who directed the matter be referred back to the Waitangi Tribunal for a decision. Rather than allow the legal proceedings to reach a conclusion, the New Zealand Government immediately took away that right, through an act of Parliament, without our consent.
This was an egregious act by the New Zealand Government against Wairarapa Moana ki Pouākani Incorporation. They:
• Breached Te Tiriti of Waitangi (the founding document of Aotearoa New Zealand).
• Forced a settlement of our claim without our free, informed, and prior consent.
• Violated our human right to have our claim and lawful rights heard and properly determined by the New Zealand courts. Have repeatedly acted in a way which is inconsistent with the intent and articles of the United Nations Declaration on the Rights of Indigenous Peoples
We have been denied access to justice
The impact of the New Zealand Government’s actions has been traumatic for our people, and the impact will transcend generations.
Recommendation
We make the following recommendations to the Members of the Permanent Forum on Indigenous Issues:
1. Invite the Special Rapporteur on the rights of indigenous peoples to visit New Zealand to investigate and report on the actions of the New Zealand Government
2. Request the Expert Mechanism on the Rights of Indigenous Peoples to note our statement at this 22nd session, and our serious concerns about the actions of the New Zealand Government against us.
3. Request Permanent Forum Members in their report on this 22nd session, to encourage adherence and full commitment by member States to the articles of the United Nations Declaration on the Rights of Indigenous Peoples and the International Covenant on Civil and Political Rights, particularly Member States that are parties to this covenant.
111 A pā harakeke is often used as a metaphor to depict the familial relationships. The flax grows in clumps of three – with the shoot in the middle being the ‘rito’. If the rito were to be cut, the parent shoots on its immediate sides will perish. Hei whakakīkī I ngā whāruarua is about filling in those gaps where shoots are missing. The plight of Wairarapa Moana is to ensure those familial relationships are recognised in the context of these claims.
Anne Carter, Director Wairarapa Moana ki Pouākani Incorporationanne@wairarapamoana.org.nz
History of Wairarapa Moana and the Pouākani Lands
He Pā Harakeke: He whakakīkī i ngā whāruarua2
Introduction
The situation concerning the Wairarapa Moana ki Pouākani Incorporation (Wairarapa Moana) has been described as sui generis – that is, standalone and unique – in almost every way possible.
Wairarapa Moana ki Pouākani – Our Story
Wairarapa Moana ki Pouākani Incorporation (Wairarapa Moana) is a Māori Land Incorporation. We represent the descendants of the hapū (subtribes) and whānau (families) of Wairarapa Moana. Wairarapa Moana has 4,000 Māori owners and whānau (families) and links through shared genealogy with the wider iwi (tribes) of Ngāti Kahungunu ki Wairarapa, and Rangitāne Tu Mai Rā.
Wairarapa Moana are indigenous peoples in our own right.
Traditionally, the rangatira (chiefs) and hapū (subtribes) of Ngāti Kahungunu ki Wairarapa and Rangitāne held interests in Lake Wairarapa and Lake Ōnoke and the surrounding lands. The 1860s was a time in our history when as Indigenous Peoples we were subject to the New Zealand Settler Government demand for land, and control of our lakes, rivers, and waterways. For decades our people refused to sell their land and/or to cede their customary interests in our lakes.
1896: following a period of discussion and/or negotiation, Lake Wairarapa, Lake Ōnoke (Wairarapa Moana), and the surrounding lands, were transferred to the New Zealand Government. In consideration for that transfer, the Government undertook to provide “ample reserves”, which were “entirely suitable for the owners’ needs and in the vicinity of the lakes”, to the hapū (subtribes) and whānau (families) of Wairarapa Moana. The Government’s undertaking was never honoured. The Government did not provide any land for a period of 20 years.
1916: the New Zealand Government, agreed to vest 30,486 acres of land in the South Waikato (370 kilometres away from Wairarapa Moana) in the members of the hapū (subtribe) and whānau (families) of Wairarapa Moana. We refer to these lands as the Pouākani lands. Wairarapa Moana continue to own and farm what now remains of that land on behalf of its Māori owners and families.
The Pouākani land is not within the traditional rohe (territory) of Ngāti Kahungunu ki Wairarapa and Rangitāne, the wider iwi (tribe) to which Wairarapa Moana people’s whakapapa (descend from through genealogy) It was customarily held by Pouākani hapū (subtribes) with links to Iwi (tribes), namely, Raukawa and Ngāti Tūwharetoa, until the late 19th century when the New Zealand Government acquired it.
The Government in the 1940s took some of our Pouākani land under the Public Works Act for the development a hydroelectricity scheme on the Waikato River.
1987: some of the Pouākani land that was taken was transferred to a state-owned enterprise (SOE), the Electricity Corporation of New Zealand Ltd (“transferred land”). This was part of an agreement reached between the Government and the New Zealand Maori Council. The Waitangi Tribunal was given the power to make binding recommendations for the return of such land to Maori ownership. Land transferred to SOEs had a memorial placed on the title so that any prospective purchaser or owner had notice that the land could be
2 A pā harakeke is often used as a metaphor to depict the familial relationships. The flax grows in clumps of three – with the shoot in the middle being the ‘rito’. If the rito were to be cut, the parent shoots on its immediate sides will perish. Hei whakakīkī I ngā whāruarua is about filling in those gaps where shoots are missing. The plight of Wairarapa Moana is to ensure those familial relationships are recognised in the context of these claims.
Anne Carter, Director Wairarapa Moana ki Pouākani Incorporationanne@wairarapamoana.org.nz
the subject of binding recommendations by the Waitangi Tribunal. The transferred land is now owned by Mercury New Zealand Ltd. This transferred land is what Wairarapa Moana has sought to have returned.
1989: Wairarapa Moana lodged a claim outlining all the historical breaches by the Government under Te Tiriti o Waitangi (the founding document of our nation).
2017: Wairarapa Moana filed an application to the Waitangi Tribunal under section 8A of the Treaty of Waitangi Act 1975, seeking the return of some of the transferred land.
The Waitangi Tribunal is a New Zealand Government-appointed permanent commission of inquiry responsible for investigating and resolving claims brought by Māori regarding breaches of the Te Tiriti o Waitangi. Section 8A of the Treaty of Waitangi Act allows the return of lands where Māori have a well-founded claim, and the title to the land, includes a section 27B memorial. These memorials signal that the land could be returned to Māori under this Act.
2020: the Waitangi Tribunal issued a preliminary determination on Wairarapa Moana’s application, which recorded that:
(a) Wairarapa Moana’s claim was well-founded
(b) The Tribunal had jurisdiction to make binding recommendations for the return of the Pouākani land; and
(c) The Tribunal would likely recommend the return of the Pouākani land to an entity representing the descendants of the hapū (subtribes) and whānau (families) of Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua (a much wider grouping than Wairarapa Moana, and indeed Ngāti Kahungunu ki Wairarapa and Rangitāne o Wairarapa)
Several parties, including the New Zealand Government, Raukawa (supported by Ngāti Tūwharetoa) and Mercury (an electricity generation company with majority ownership by the New Zealand Government) responded by commencing judicial review proceedings to challenge the Waitangi Tribunal’s preliminary determination.
The Pouākani Claims Trust, who represents those hapū (subtribes) with “customary interests” in the Pouākani land supported Wairarapa Moana’s application for the return of the Pouākani land through the Waitangi Tribunal and the various legal proceedings.
All parties who brought the judicial review proceedings argued that the Waitangi Tribunal had misinterpreted its powers to return land under Section 8A of the Treaty of Waitangi Act. They argued that the Tribunal erred in finding that the Pouākani lands lying within the traditional rohe of other iwi (tribes) could be returned to Wairarapa Moana who in their view had no customary association with this area.
2021: The High Court quashed the Waitangi Tribunal’s preliminary determination and sent it back to the Waitangi Tribunal for reconsideration (HC decision)
A Minister of the New Zealand Government advised Wairarapa Moana that the Government intended to enter a final settlement of all historical Treaty of Waitangi claims including the Wairarapa Moana claim with the Ngāti Kahungunu ki Wairarapa Tāmaki Nui-ā- Rua Claims Settlement Trust This would extinguish Wairarapa Moana’s claim for the return of the transferred land. Wairarapa Moana responded to the Minister, advising him that its claim with the Waitangi Tribunal had not yet been fully determined and that it did not consent to any decision to enter a final settlement.
Wairarapa Moana proposed alternate options to the Government which enable the wider tribe to settle, and for the Wairarapa Moana claim to be removed from settlement and subsequent legislation. This option had been utilised in other Treaty of Waitangi Settlements. But in our case, we were denied that solution.
Anne Carter, Director Wairarapa Moana ki Pouākani Incorporationanne@wairarapamoana.org.nz
Wairarapa Moana applied and were granted leave to have its appeal against the HC decision heard directly by the Supreme Court of New Zealand.
The Waitangi Tribunal ruled that only Wairarapa Moana had the mandate to settle our Treaty of Waitangi claim. Not the Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-rua Claims Settlement Trust.
2022: The Supreme Court of New Zealand upheld Wairarapa Moana’s appeal against the HC decision. They also determined Wairarapa Moana were eligible to be the recipient of the Pouākani lands, and that the Waitangi Tribunal should initiate a process to reconcile the various interests based on Māori cultural traditions and customs. The Supreme Court redirected the matter back to the Waitangi Tribunal for reconsideration3 .
Despite, all of the above, the New Zealand Government passed the Ngāti Kahungunu ki Wairarapa Tāmaki nui-ā-Rua Claims Settlement Act (The Act) extinguishing Wairarapa Moana’s claim. This was a deliberate and egregious act by the New Zealand Government.
2023: Wairarapa Moana filed an application to the High Court seeking a declaration that The Act is inconsistent with s27(3) of the New Zealand Bill of Rights Act (“NZBORA”).
In New Zealand, a Declaration of Inconsistency (DOI) is a legal remedy that allows a court to declare that a particular provision of legislation is inconsistent with the rights and freedoms guaranteed by the NZBORA. The purpose of a DOI is to alert Parliament to the fact that it has passed a law that conflicts with a right or freedom guaranteed by the NZBORA.
Potential “Rights” Violations
The enactment of the Act raises various legal issues, including those concerning the:
• New Zealand Bill of Rights Act (“NZBORA”)
• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
• International Covenant on Civil and Political Rights (ICCPR).
UNDRIP
Article 3
Article 3 of the UNDRIP affirms the right of Indigenous peoples to self-determination, which includes the right to freely determine their political status and freely pursue their economic, social, and cultural development.
Wairarapa Moana says that the New Zealand Government has violated this right by settling the historical claims involving Wairarapa Moana without their consent. Clearly, this unilateral decision of the New Zealand Government will have significant implications for the political status and economic, social, and cultural development of Wairarapa Moana.
Article 8
Article 8 affirms the right of Indigenous peoples to protect and preserve their cultures, traditions, and institutions.
Wairarapa Moana says that the New Zealand Government has violated this right by imposing a non-Māori intervention that prevents Wairarapa Moana from engaging in a tikanga Māori (Māori framework of practices / values) that may have allowed them to resolve the issue concerning the Pouākani Land 3 (SC 93/2021 [2022] NZSC 14)
Anne Carter, Director Wairarapa Moana ki Pouākani Incorporation
anne@wairarapamoana.org.nz
Articles 25-29
Articles 25-29 set out a range of rights pertaining to indigenous lands, territories, and resources. In respect of these articles, Wairarapa Moana claim the following breaches:
• Article 25:
o The legislation extinguished Wairarapa Moana’s right to maintain and strengthen their spiritual relationship with the Pouākani land to which they sought return. Wairarapa Moana have a connection with the land and exercise their role as kaitiaki (stewards) in accordance with Māori custom, traditions, and values. We have a shared genealogy with the Pouākani hapū (subtribes).
• Article 26:
o The legislation prevents Wairarapa Moana from exercising right to the lands, territory, and resources of the Pouākani land which, having acquired the land, is protected under Articles 26(1) and 26(2). The Government has also violated Article 26(3) by failing to afford adequate legal recognition and protection to Wairarapa Moana’s interests in the Pouākani land and failing to grant due respect to Wairarapa Moana’s tikanga
• Article 27:
o In Wairarapa Moana’s case, the Government’s intervention undermines its obligation to establish and implement, in conjunction with Wairarapa Moana, a fair, independent, impartial, open, and transparent process for recognising and adjudicating the rights of Māori in relation to the Pouākani land. This article explicitly requires that indigenous peoples ‘shall have the right to participate in this process’ The Government did not provide Wairarapa Moana with the opportunity to do so.
• Article 28:
o The Government’s intervention violates Article 28(1) by denying Wairarapa Moana’s right to redress regarding Pouākani lands despite Wairarapa Moana’s clear indication they did not give free, prior, and informed consent to the settlement of their claim. Under Article 28(2), the New Zealand Government has an obligation to provide compensation that is ‘equal in quality, size and legal status or of monetary compensation or other appropriate redress’.
• Article 29:
o Under Article 29(1), the Government’s intervention prevents Wairarapa Moana from exercising its right to conservation and protection of the Pouākani lands. No provisions have been put in place to implement programmes that have been developed by Wairarapa Moana as required under Article 29(3)
• Article 31:
o Wairarapa Moana is denied its right to exercise tikanga Māori in relation to both the exercise of authority over the Pouākani lands as well as the practices for resolving any conflicting interests amongst Māori parties.
• Article 32:
o Wairarapa Moana is denied its right to develop priorities and strategies for the development of the Pouākani land and its resources as required under Article 32(1).
Anne Carter, Director Wairarapa Moana ki Pouākani Incorporationanne@wairarapamoana.org.nz