Relationship with different categories of land

Wai 215: Tauranga Moana 1886-2006 - Report on the Post-Raupatu Claims Volume 2

“We have stressed that the Crown has always acknowledged that it has been bound to uphold the property rights of Tauranga Māori over their lands, waters, and taonga, as determined by their own customs. Any abrogation of this standard by the Crown constitutes a breach of the Treaty.”

“However, a further issue then arises – one which is critical in the context of these claims.”

“This is the question of whether, if Tauranga Māori have lost legal rights over their taonga by means that are inconsistent with Treaty principles, they may not now retain any Treaty interests in their taonga. This is a very significant issue for the hapū of Tauranga Moana, since so much of their property has been alienated. They have thereby lost the ability to control or care for their taonga, including wāhi tapu (as discussed in chapter 8), and waterways.”

“The Tribunal’s Petroleum Report and He Maunga Rongo have each found that Māori retain ‘a Treaty interest’ whenever legal rights are lost by means that are inconsistent with Treaty principles. Further, when a Treaty interest arises: there will be a right to a remedy and a corresponding obligation on the Crown to negotiate redress for the wrongful loss of the legal right. Most importantly of all, the Treaty interest creates an entitlement to a remedy for that loss additional to any other entitlement to a remedy.”

Wai 215: Tauranga Moana 1886-2006 - Report on the Post-Raupatu Claims Volume 2

“Before we address this issue however, we need to make clear that the capacity of the Crown to enable Māori to exercise rangatiratanga and to act as kaitiaki will differ depending on the specific category of land at issue, for example, Crown land, public land owned by local authorities, and private land. The latter categories present particularly complex problems of how to best reconcile public rights of access and enjoyment, or the legitimate property rights of private landowners, with the equally legitimate right of tangata whenua to retain links to their significant sites within their ancestral landscape. These issues are further complicated in situations where Māori have lost their ancestral lands in ways inconsistent with the principles of the Treaty. We acknowledge the complexity of the issues involved but consider that the Crown and Māori must not resile from cooperating to find avenues for the expression of Māori rangatiratanga and the exercise of kaitiakitanga”

“To this day neither the Historic Places Act nor the Resource Management Act provide Tauranga Māori with any straightforward mechanisms to exercise rangatiratanga and act as kaitiaki over their ancestral places on any of these categories of land. One mechanism which might come closest is the possibility, under both the Historic Places Act and Resource Management Act, that Māori groups might become heritage protection authorities, able to issue heritage protection orders. Under the Resource Management Act, an iwi authority, Māori trust, or incorporation, can in theory become heritage authorities if constituted as a body corporate, and if the Minister for Culture and Heritage accepts their application.”

“The Te Roroa Tribunal commented that there may be several issues for Māori in considering undertaking this process. First, that Tribunal felt that the requirement to be a body corporate was inappropriate, since the trustees who administer marae, the cultural foci of Māori communities, do not constitute a body corporate. We note, however, that trusts and incorporations established under Te Ture Whenua Māori Act 1993, and Māori trust boards, are body corporates. Secondly, disclosing the location of wāhi tapu and scrutiny at public hearings could pose threats to their security. Thirdly, and most significantly, substantial costs are involved in making a heritage order, including one-off costs for applying (and a high likelihood of appeal) and ongoing costs in processing resource consent applications. In particular, landowners can apply for compulsory purchase and compensation by the heritage authority if they cannot sell or use their land in a reasonable manner.294 Making a heritage order therefore inevitably involves significant delays, financial costs, and considerable risks ; as the Parliamentary Commissioner for the Environment noted in 1996, it is a last resort option for protection.” (p 295)