Defenders of the environment: the Ngāi Tahu Treaty Settlement negotiations and third-party interests

Mar 25, 2018

Nā Dr Martin Fisher

The role of third party interests in Treaty settlement negotiations is often not fully recognised. Their influence on the Ngāi Tahu negotiations (1991–1998) was significant and presented a series of challenges to the development of the Fourth National Government’s Treaty settlement policy in the first half of the 1990s, with conservationists emerging as one of the strongest opponents of Ngāi Tahu and indeed the Crown. Many of these differences centred on the diverging views of the role of indigenous people in co-management of conservation areas – which Ngāi Tahu perceived as challenges to their rangatiratanga. There was a fundamental disagreement on the idea of Treaty rights and the very question of whether settlements were at all necessary.

The return of sites of cultural significance in the Ngāi Tahu negotiations was informed by the Waitangi Tribunal’s specific recommendations on the Ngāi Tahu Claim. Ngāi Tahu sought the return of fee simple title to many sites which were conservation areas: Whenua Hou (Codfish Island), Rarotoka Island, the Crown Tītī Islands, the Arahura River, Aoraki (Mount Cook), Lake Waihora, and others. In areas where fee simple title could not be obtained, especially in the ‘conservation estate,’ Ngāi Tahu sought a co-management role. Opposition from the Department of Conservation (DOC) third parties delayed agreement on the return of sites of cultural significance. They also affected the return of three high country pastoral leases held in the Ngāi Tahu land-bank: the Elfin Bay, Greenstone, and Routeburn stations.

There were numerous public relations fronts upon which Ngāi Tahu attempted to convince the general public of the justice of their case, but the most heated was perhaps the conservation movement. In some ways conservationists, such as Forest & Bird, would have been expected to be avid proponents of indigenous co-management. There were many other interest groups, including Federated Farmers, as well as those claiming to represent recreational values such as the Federated Mountain Clubs (FMC), Public Access New Zealand (PANZ), and Fish & Game New Zealand. Some had a very rational perspective, but some stoked racial fears. These groups chose to ignore the lasting effects of New Zealand’s race relations history, and could not imagine that co-management or the transfer of conservation land could address the Ngāi Tahu claims.

Conservationists who supported Ngāi Tahu such as Dr Henrik Moller of the University of Otago, who had engaged with Ngāi Tahu in studies of muttonbirding on the Tītī Islands, were also targeted by conservation groups in the media. Government officials too were frustrated by conservation demands for consultation that nevertheless resulted in little participation by conservation groups.

Forest & Bird, PANZ, FMC, and, at first, Fish & Game believed that only the conservation estate was going to be used to address settlements rather than non-conservation land, but this was not the case. The other predominant fear was Ngāi Tahu participation in the management of conservation areas, as it was felt this would curb access to the public. Tangata whenua participation in management of conservation areas was often misconstrued as another part of the privatisation process, and Ngāi Tahu was merely another private interest. In early 1992, the FMC wrote to the Minister of Treaty of Waitangi Settlement Negotiations Doug Graham, making the analogy that “no one would suggest giving control of our public conservation parks to a private group, e.g. The Helicopter Line, or Fiordland Travel.” This lack of understanding about the Ngāi Tahu Treaty rights was reinforced by the FMC later in the year in another letter to Minister Graham: “Ngāi Tahu have no strong visible relationship with conservation lands during European times. Their relationship to these lands before settlement is unprovable, and for much of the inland estate, appears minimal.” The FMC continued: “Other New Zealanders have fought and won the preservation of these lands. Their mana, including their desire to see these lands protected in perpetuity, deserves precedence.”

A similar rationalisation was produced by Treasury at the same time. It shared this pointed emphasis on the subjective nature of historical claims, and the belief that calculating a loss, much less a connection, was impossible. This is despite the undeniable archaeological proof.

In late November 1993, the TVNZ current affairs programme Frontline featured treaty settlement negotiations and the potential use of national parks. The programme sparked a flurry of letters from concerned New Zealanders opposing the use of any conservation land in a possible settlement. Many referred to the perceived need to maintain the principle that New Zealanders were one people.

In the midst of a constant stream of criticisms by most conservation groups, there were some examples of support. After the release of the first Tribunal report in 1991, the North Canterbury Conservation Board expressed its support for the return of Waihora (Lake Ellesmere) to Ngāi Tahu. In 1992 the Maruia Society, Friends of the Earth, and Greenpeace New Zealand wrote a combined letter to Doug Graham supporting the Government’s policy on settlements, which the minister passed on to chief Ngāi Tahu negotiator Tipene O’Regan (now Tā Tipene). The views of these groups were the exception at the time.

The Waitangi Tribunal found that the Crown had “acted in breach of its Treaty obligations in failing to meet the wishes of Ngāi Tahu to retain ownership of the pounamu in and adjacent to the Arahura and its tributaries.” The Tribunal recommended that the Arahura River and all its tributaries be vested in Mawhera Incorporation or another body nominated by Ngāi Tahu … the process of vesting the river was complicated by conservation interests both within and outside government.

The negotiations with Ngāi Tahu completely stalled from 1992 until well into 1996, but to conservation groups a settlement always seemed to be imminent. The negotiation over the Arahura River was a case in point.

The Waitangi Tribunal found that the Crown had “acted in breach of its Treaty obligations in failing to meet the wishes of Ngāi Tahu to retain ownership of the pounamu in and adjacent to the Arahura and its tributaries.” The Tribunal recommended that the Arahura River and all its tributaries be vested in Mawhera Incorporation or another body nominated by Ngāi Tahu. The Arahura Valley has traditionally been one of the principal sources of pounamu for Ngāi Tahu. Pounamu represented both power and survival for the iwi, and was recognised as both a sacred object and a valuable commodity. Despite the specific recommendation of the Waitangi Tribunal, the process of vesting the river was complicated by conservation interests both within and outside government. The Crown and Ngāi Tahu had largely agreed that it would be more cost-efficient to identify the catchment area of the Arahura River and its tributaries to their respective sources, and transfer that catchment to Ngāi Tahu, while ensuring the maintenance of conservation values and public access. When DOC consulted with conservation NGOs regarding the catchment transfer proposal, there was opposition. The conservation NGOs were concerned about preserving conservation values and public access to the Arahura Valley.

As a result of public consultation, DOC changed the parameters of the previous agreement. In an October 1992 report, DOC recommended the establishment of a reserve governed by the Reserves Act 1977. Ngāi Tahu was opposed to the reserve status, which Tipene O’Regan described as incorporating “effective powers of confiscation”, saying that the “issue lies at the heart of the restoration of the Crown’s mana.” He linked the Crown’s mana to Ngāi Tahu rangatiratanga by expressing to the Crown the intimate connection that existed between the two under the Treaty of Waitangi, and that by vesting the Arahura catchment in Ngāi Tahu, “there could be few more tangible ways to confirm Ngāi Tahu tino rangatiratanga.” The DOC position to establish a reserve became entrenched by the Crown, and Ngāi Tahu remained opposed to the reserve proposal. In March 1993 Ngāi Tahu re-affirmed its desire for the vesting of the river and its tributaries into the Mawhera Incorporation. The Crown maintained that the reserve status was the only option available.

In addition to the Tribunal’s recommendations regarding the vesting, the Tribunal also recommended a survey of the entire river and its tributaries. Once Ngāi Tahu and the Crown reached an impasse on the issue of vesting, Ngāi Tahu still pressed for a survey of the area. The Crown complained that the cost of a survey was prohibitive, but Ngāi Tahu countered, pointing out that a survey would be unnecessary if the entire catchment were transferred to the Mawhera Incorporation as the Tribunal had recommended. For the remainder of 1993 until the breakdown of the negotiations in November 1994, the opposing Crown and Ngāi Tahu positions on the Arahura River remained firm.

When negotiations recommenced in 1996, both the Crown and Ngāi Tahu recognised that they would have to shift their position to reach an agreement. Ngāi Tahu understood that the Crown refused to vest the catchment, and that the iwi would have to maximise its opportunities within the reserve status of the area. Conservation groups pressed for the classification of the Arahura River area as a scenic reserve. Ngāi Tahu countered that if the area was going to be classified as a reserve against the wishes of Ngāi Tahu, it should be classified as a historic reserve. While both reserves have the same public access provisions in the Reserves Act 1977, scenic reserves are specifically designed for the use of the public, while historic reserves are not. In September 1996, conservation interests sought to have the scenic value of the area recognised in addition to the historic reserve sought by Ngāi Tahu. Ultimately the Waitaiki Historic Reserve was vested in the Mawhera Incorporation, and while it wasn’t the entire catchment as originally requested, at least the area was recognised as a historic reserve. Much like the wider political structure of the negotiation process and the discussions over the economic rationales for compensation, there were limits to the Ngāi Tahu influence, but small concessions were gained that were important to the integrity of the settlement from the perspective of the iwi.

Restrictions on the return of certain Crown lands, such as DOC lands, emerged from opposition within the Crown, but also from prominent conservation groups. Historian Dr Te Maire Tau pinpoints the diverging views which separated the two groups:

“Pākehā perceive Māori as claiming a spiritual relationship with the land, yet also managing to kill off the moa. Māori perceive Pākehā as both pillagers of the environment and yet claiming the role as guardians of the nation’s treasures.”

That dichotomy and opposition is ongoing to this day. Some third party opposition has diminished as the Treaty settlement process has become accepted by nearly all political parties, but the opposition and the animosity between settling and settled Māori groups and some conservationists both within and outside government nonetheless continues.

Dr Martin Fisher is a lecturer at the Ngāi Tahu Research Centre at the University of Canterbury.