A PRAGMATIC REPORT

Last year Ngāti Kahu sought a total relief package for the prejudices caused by the Crown’s breaches of Te Tiriti o Waitangi, as proven in the ‘Muriwhenua Report 1997.’  Yesterday the Waitangi Tribunal released the ‘Ngati Kahu Remedies Report 2013’ in which it has made some very strong recommendations.  However none of them is binding.  That will be extremely disappointing to Ngāti Kahu, but it is totally understandable.  Since 1997 the Tribunal has lived with the constant threat that if it ever issues binding orders, the Crown will change the law to remove its powers. 

This threat is part of the literature and was covered by Paul Hamer in his article 'A quarter-century of the Waitangi Tribunal: Responding to the challenge' which appears in the book, The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi.  The threat itself is a clear breach of the rule of law and seriously undermines the Tribunal’s credibility.  Nevertheless the Tribunal generally produces useful reports.  This one is no exception. 

In a major departure from past decisions the Tribunal says in this report that, while a complete settlement between Ngāti Kahu and the Crown is preferable, it recommends a partial settlement.  This is in line with Ngāti Kahu’s deed of partial settlement which the Crown had earlier rejected. 

And in another departure the Tribunal also says a partial settlement should still be completed, even if Ngāti Kahu and the Crown can't agree on an ‘historical account’, Crown ‘acknowledgement’ of Treaty breaches, and Crown ‘apology’.  This is important because these are where the Crown has in the past laid the foundation for settling claimants to cede their rangatiratanga as a condition of settlement; something which has always been a deal breaker for Ngāti Kahu.

Although the Tribunal refuses to recommend any compensation in this report, this is unlikely to faze Ngāti Kahu who have consistently focused on land rather than money.  Additionally the lack of compensation has contributed to the Tribunal’s recommendation that any settlement could only be partial. 

At the same time it provides details of every block of land it recommends the Crown relinquish.  This means, if they wished to do so, when relevant hapū repossess their lands, they can do so in the knowledge that they now have two Tribunal reports confirming their ownership.    

Interestingly, to accommodate the Crown's ransom demands for lands it relinquishes, the Tribunal recommends that it make $20.736m cash available to Ngāti Kahu to pay that ransom. That’s 10% less than the $23.304m offered in 2008.  But again this is to accommodate the partial nature of any settlement, and is offset by a recommendation that the ransom also be reduced significantly.

The Tribunal also recommends that Rangiputa and Kohumaru be returned to Ngāti Kahu rather than to Ngāti Tara and Te Paatu.  Likewise it recommends that the Kohumaru blocks within the Ōtangaroa forest be returned to Ngāti Kahu rather than kept intact for inclusion in a return to Whangaroa. 

The space limits of a column don’t allow a full coverage of the Tribunal’s recommendations.  But overall it’s clear that they have taken both Ngāti Kahu’s deed of partial settlement and the Crown’s settlement policies into account, and have drafted a very pragmatic report.   There will be some who are disgusted with it.  However it contains some real gems for Ngāti Kahu.  I expect their negotiators and those of the Crown will now be carefully anyalysing it.  How they respond will be very interesting.