10 minute read
Remembering our past, creating our future
Fox, William (Rt Hon Sir), 1812?–1893. Fox, William 1812–1893 :On the coast near Kai-terri-terri, Blind Bay. Jan. 1846. Ref: C-013-007.Alexander Turnbull Library, Wellington, New Zealand. /records/22396832
WORDS: KERENSA JOHNSTON, CEO WAKATŪ
Here, at the top of a small island in the South Pacific, known as Te Tauihu o te waka a Māui, our whānau live amongst rich podocarp forests of rimu, kahikatea, miro, mataī and tōtara. Here, we grow and gather nutrient-rich and healthy food to sustain us.
Our houses are modern and well designed to connect our whānau together, and yet open to embrace the sea and our ancestral mountains. Our papakāinga provides a place where we come together. We live as whānau and hapū as we have always done, supporting one another in times of stress and need, and celebrating together when times are good.
Our cities are built amongst the forests and accommodate the landscape. Buildings hug the trees, native plants define the contours of the roads and urban hubs provide a common place to come together, to learn, to trade, to eat, drink and share; to grow and flourish as a society.
We live in accordance with our environment, mindful of the changing patterns of our climate, and in a relationship with the water and the plants and animals we share this whenua with.
Te reo rangatira, the language of our tūpuna, is spoken by everyone. It is the first language that our children learn, regardless of whether they are tāngata whenua, the first people of this land, or tāngata tiriti, those who came later and have chosen, by our invitation and subject to the sacred covenants contained in Te Tiriti, to make Aotearoa their home.
Then, when our children begin their formal education, which is underpinned by the depth and complexity of wānanga and humanist values of equality and collective good, they begin to learn second, third and fourth languages, which will carry them forward into the world.
Our political structures and economy have evolved to apply our values of manaakitanga, whānaungatanga, kaitiakitanga and rangatiratanga in this modern world. These ancient concepts combine seamlessly with introduced concepts such as the rule of law, equality and democracy. Together, we have built a global economy and legal system, recognised as one of the best in the world. Because of this, there is good work available for all, here in Te Tahuihu and for those living in other parts of Aotearoa.
Having intermarried with the ones who came later to our country, we are creating strong, resilient and healthy families who are truly indigenous to this place Te Tahuihu o te waka a Māui, our home. Of course, here in 2019 in Aotearoa, this is not our reality – yet. Our reality as the indigenous people of Aotearoa, like indigenous peoples throughout the world, is vastly different – the promise of colonisation has not delivered the benefits our tūpuna imagined.
An early example of land surveyance in Motueka, 1926 (Image credit unknown)
But the state we imagine on the previous page was real to our tūpuna. It was the reason why, at Kaiteretere in Tasman Bay in the spring of 1841, our rangatira engaged with New Zealand Company officials, led by Arthur Wakefield, who were searching for a viable New Zealand Company settlement of land to follow the establishment of Wellington.
At that time, our tūpuna living in Whakatū (Nelson), Motueka, Mōhua and the area we now know as the Abel Tasman National Park, lived as we do now, according to fundamental principles of tikanga; such as tapu, utu, mana moana and mana whenua.
Our rangatira agreed to the settlement of what would become Nelson because they hoped for and believed in a future where together we would prosper and thrive. They authorised the Nelson settlement, subject to two very important conditions, which were subsequently enshrined in law via a Crown Grant of 1845:
Firstly, all papakāinga, wāhi tapu, urupā, and cultivation lands would be protected in perpetuity for the benefit of the customary owners. These places would be protected from settlement; they were the places we revered, where we lived, and where we depended on the land and water for survival and prosperity. This category of land became known as the Occupation Reserves.
Secondly, one-tenth of all land used for the Nelson settlement would be reserved in perpetuity for the benefit of the families of the customary land owners and their descendants, the whānau and hapū of Western Te Tauihu. This category of land became known as the Nelson Tenths’.
However, by 1850 the Crown had reneged on the deal to reserve and protect our land, and although a small portion of land was reserved in Whakatū for the benefit of our families, it fell well short of the guaranteed one-tenth of land acquired by the New Zealand Company for the Nelson settlement. Furthermore, no attempt was made to reserve and protect our papakāinga and other occupation lands as agreed by the Crown and our tūpuna.
Our collective memory of this history and our engagement with the New Zealand Company is that the agreements relied on a binding legal relationship between our families and the Crown. They created an ongoing relationship based on a mutual honour for both parties to adhere to the terms of the deal, which was established as a trust.
This is how our story has always been told by our kaumātua and the families of Wakatū, which today represents the owners of the Tenths’ and Occupation Reserves in Whakatū, Motueka and Mōhua. Wakatū Incorporation was established by the whānau and hapū of Western Te Tauihu in 1977 when it took over the management of the Tenths’ Reserves and Occupation Reserves from the Māori Trustee. Wakatū is an organisation which is governed by its Māori owners, with its committee of management being elected every three years by the Māori land owners of the estate.
In 2009, Wakatū, supported by its kaumātua Rore Stafford and the trustees of Te Kāhui Ngahuru Trust (a trust established to represent all of the descendants of the Nelson Tenths’ and Occupation Lands), decided to file proceedings against the Crown, alleging a breach of trust and fiduciary duty by the Crown for its failure to reserve and protect the Nelson Tenths’ and Occupation Reserves as guaranteed by the Crown Grant 1845. It was the firm belief of our tūpuna, our kaumātua and the committee of management of Wakatū (the Board) that the agreements made by our rangatira in 1841 created legally binding obligations on the Crown which must be upheld.
The decision to initiate legal action was not a decision taken lightly. The Wakatū Board and our kaumātua knew it would be a long, costly and painful exercise. Our legal advice was that we were likely to lose in the High Court and Court of Appeal but we had a chance of success in the Supreme Court. Despite the obstacles, the litigation was strongly supported by the majority of Wakatū families whom, I believe, understood the important principle that was at stake and recognised the injustice done to our families because of the Crown’s failure to adhere to the original agreement made in 1841.
From 1844 onwards, the Crown assumed the role of trustee and manager of our lands – an estate that was much smaller than we anticipated. By 1845, the Nelson settlement officially amounted to approximately 151,000 acres (although in reality it was larger), but our papakāinga lands and sacred places were never protected from settlement as agreed, and the full one-tenth of land was not reserved. The actual ‘Tenths’ fell well short of what had been guaranteed: from an original 15,100 acres to be reserved for our families, the area of reserved land in fact amounted to less than 3000 acres.
In 1892, the Native Land Court embarked on the exercise of identifying the individual Māori land owners of the Nelson Tenths’ estate. At the Native Land Court hearing, the whānau and hapū provided lists to the Court of those tūpuna who had been living on the land at the time of the establishment of Nelson in the 1840s and who were considered to be the Māori customary owners of the land according to tikanga, international law and colonial law.
The list of whānau and hapū members approved by the Native Land Court has become known colloquially amongst whānau and hapū as the ‘254 owners’. The majority of the owners and families of Wakatū descend from these original named Māori land owners, who are close whānaunga – cousins, father and daughter, husband and wife. It is these tūpuna and their descendants, who from 1893 onwards, fought to have our land returned to our management and care.
Between 1893 and 1977, a number of delegations and petitions were presented to Parliament and to other officials in an attempt to find out what had happened to our land in Whakatū, Motueka and Mōhua. It was very difficult to obtain information because so much of our land had been sold or leased to others, and as a result many of our families were forced to move away from Te Tauihu to live elsewhere. In the 1970s, this state of affairs led to a commission of inquiry into the state of Māori Reserved Lands, resulting in the establishment of Wakatū Incorporation in 1977. Our kaumātua, Rore Stafford and his wife Lynne Stafford, along with many others, were instrumental in establishing the incorporation.
When the land was transferred back to the control of the owners, very little of the original estate remained, and what had been reserved had been slowly whittled away in the intervening years by the Māori Trustee who, on balance, had essentially failed in its duty to preserve and protect the trust land on behalf of its owners.
By 1985, because of an amendment to the Treaty of Waitangi Act 1975, the Waitangi Tribunal claims process was underway in Te Tauihu. Rore Stafford, as a member of the committee of management (the Board) of Wakatū together with Hōhepa Solomon, filed the first Treaty of Waitangi claim for the top of the South Island on behalf of the families of the descendants of the Tenths’ Reserves. This claim was known as WAI 56.
It is fair to say we began the Treaty of Waitangi reconciliation process with the Crown in good faith, with a willing Labour Government that was open to settling whānau and hapū claims; including our claim which was specific to the Nelson Tenths’ and Occupation Reserves. Unfortunately, once Labour lost power in 2008, it was replaced by a National Government focused on a policy of settling with large groups – preferably iwi or groups of iwi – rather than dealing with hapū about discrete issues and specific areas of land.
The failure of the Treaty settlement process and the policy adopted by National at that time to deal with our case led us to the courts: to construct an argument based on first legal principles. It was decided we would argue a breach of trust in the courts rather than a breach of the Treaty of Waitangi.
This therefore was the subject of Proprietors of Wakatū and Others v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423. This case eventually went to the Supreme Court and was led by Rore Stafford and Wakatū Incorporation, on behalf of our whānau and hapū.
Our argument was simple: A trust had been created, the Crown trustee had failed to meet the legal obligations of that trust and as a result we wanted our land, the trust property, returned to its owners.
The thinking behind our legal strategy was grounded in the belief that we as Māori and as property owners were entitled to the full protection of the law and, in our case, trust law, in the same way as any other beneficiary in Aotearoa. We strongly believed, despite how hard the Crown argued against it, that Māori land owners have the option to choose whether to look to the Waitangi Tribunal or the law courts for a remedy in Aotearoa. Like all New Zealanders, we argued, we are entitled to the full protection of the law. This surely is one of the guarantees of Article Three of the Treaty of Waitangi as well as an inherent constitutional right as a New Zealand citizen.
Unbelievably, this was an argument which the Crown tried to discount – making the case that we were only entitled to be heard by the Waitangi Tribunal and had no right to be heard before the courts.
The Crown argued that the guarantees they made were not binding agreements that created a fiduciary relationship between the Crown and our families, which the Crown is duty bound to uphold.
For over nine years we argued before the courts.Then, finally, in February 2017, the Supreme Court found, by a majority of four to one, that the Crown does owe a legal duty to reserve and protect the Nelson Tenths’ and Occupation Reserves as defined in the Crown Grant 1845 for the benefit of the Māori customary owners, our whānau and hapū.
Tuo Hippolite, Turi Elkington and Wara Kātene, celebrating the establishment of Wakatū Incorporation. Nelson Evening Mail, 1977
While, technically, the focus of our arguments was on the legal aspects of the case and in particular the guarantees set out in the Crown Grant 1845, the broader principles at stake were always about restitution and justice. We asked the questions and dared to imagine a different reality: What would the lives of our families look like had the Crown adhered to its side of the bargain in 1845? How different would our political, social and cultural landscape look today?
Would we lead the world in terms of our approach to the environment, our economy, the development and education of our people and our cities, in the ways our tūpuna might have imagined?
What would our part of the world, a small island in the South Pacific, look and feel like, had we adopted the best of our customary practices and values and amalgamated them with the best the settlers had to offer?
We will never know. However, what our families do know as a result of Proprietors of Wakatū is that together we must embark on a journey to remember and create our future based on the aspirations of our tūpuna. This remembering depends on our land being restored to our families so we can take our place as the leaders of our region and our own future.
This is the next step in the work that is underway in the aftermath of the 2017 Supreme Court decision – that is, ensuring that the trust property or an adequate substitute is returned to the owners.
As the Chair of Wakatū, Paul Morgan, who is also one of the descendants of the original Māori customary owners of the whenua points out, ‘Proprietors of Wakatū presents a real opportunity for the Crown to restore its mana in relation to our families. This is well overdue.’
For our whānau and hapū, it provides an opportunity to realise the vision of our tūpuna and to ensure the cultural, spiritual and economic wellbeing of our families in Te Tauihu now and in the future.
