The Ngāi Tahu Treaty Settlement Negotiation with the Crown: Key players and background

Oct 5, 2017

Nā Martin Fisher

The Ngāi Tahu settlement was one of the pioneering negotiations of the modern Treaty of Waitangi settlement process and set precedents for all the negotiations that have followed. Ngāi Tahu had their claims heard by the Waitangi Tribunal from 1987–1989, and their direct negotiations began soon after the Ngāi Tahu Report was released in early 1991. The negotiations had two distinct phases: 1991 to late 1994, and early 1996 to 1997, with legislation formalising the settlement in 1998. At the signing of the Ngāi Tahu Agreement in Principle in October 1996, Chief Negotiator Tā Tipene O’Regan commented that the Ngāi Tahu settlement could hardly be called fair. It was a fraction of the quantifiable loss, as settlements are for all groups; but it was certainly the best that could be achieved under the political and financial constraints imposed by the Crown.

In August 1986 Henare Rakiihia Tau, on behalf of the Ngāi Tahu Māori Trust Board (NTMTB), submitted a claim to the Waitangi Tribunal about the government’s announcement that it would transfer Crown land interests to State-Owned Enterprises. Ngāi Tahu and Māori across the country were worried that after the government privatised land and assets they would become unavailable for transfer in future Treaty settlements. Over the following year-and-a-half, seven further amendments to their statement of claim were made that set out the grievances arising from land purchases and the lack of reserves provided by the Crown, and the loss of access to food-gathering areas (mahinga kai), including both sea and inland fisheries. Tau was the Deputy Chairman of the Trust Board, and the Upoko of Ngāi Tūāhuriri. Tā Tipene was the Chairman of the NTMTB, and he and Tau formed an effective partnership in leading the Ngāi Tahu claim in the 1980s. Tā Tipene was also the Chairman of the Māwhera Incorporation, a Ngāi Tahu landowners’ trust on Te Tai Poutini, established in 1976.

The NTMTB held the mandate to represent Ngāi Tahu whānui in their Treaty settlement negotiations with the Crown, which provided a tribal base for Ngāi Tahu to organise its claim to the Waitangi Tribunal. Originally consisting of many interrelated but discrete individual and regional claims, the Ngāi Tahu claims were heard together. Although the Crown’s Large Natural Groupings policy had yet to be established, the Crown made it clear that it would only negotiate with a tribal collective, rather than with individual hapū associating to each collective. This Crown policy undercut the calls for hapū autonomy by figures within Ngāi Tahu such as parliamentarians Sandra Lee (of the Alliance political party) and Whetū Tirikātene-Sullivan (Labour), as well as other opposition from individuals on Te Tai Poutini and Rakiura.

At the conclusion of the Ngāi Tahu Waitangi Tribunal hearings in October 1989, the Presiding Officer Judge Ashley McHugh expressed concerns with the continuing sale of Crown land to private interests in the South Island. Following the Tribunal hearings, Tau and
Tā Tipene brought the Presiding Officer’s comments to the attention of the Crown and asked that a system be established where the NTMTB would be consulted before any Crown land was sold. By mid-December 1989 the Solicitor-General and Acting Deputy-Director General of Lands, following discussions with Tau and Tā Tipene, proposed an early warning system (or land bank) under which the NTMTB would be notified prior to the alienation of Crown land in the Ngāi Tahu rohe. Ngāi Tahu was the first negotiating group to have a land bank established.

The first of four Waitangi Tribunal reports, which covered the central claims, was released in February 1991. After spending seven months analysing the report, the Crown proposed that negotiations begin, and monthly meetings were held from September 1991 until negotiations broke down in mid-1994. These meetings were very formal gatherings led by each side’s main negotiator: Tā Tipene for Ngāi Tahu, and Sir Doug Graham for the Crown. The named claimant for the Ngāi Tahu Waitangi Tribunal claim, Henare Rakiihia (Rik) Tau Snr, was a co-negotiator.

Other members of the Ngāi Tahu A-Team of principal negotiators were Kuao Langsbury, Trevor Howse, Charles Crofts, and Edward Ellison; and later, Rik Tau Jnr and Gabrielle Huria. The B-Team, which worked with the A-Team in an advisory and support capacity, was led by the long-serving Secretary of the NTMTB, Sid Ashton, who played a prominent officials-level role for Ngāi Tahu. Ashton had been the Secretary of the NTMTB since the mid-1970s, and played an active role in the Tribunal hearings in the late 1980s. Nick Davidson was appointed as the lead legal consultant when Paul Temm stepped aside after acting as lead counsel for Ngāi Tahu during the Tribunal Hearings. Davidson was a prominent lawyer with law firm Bell Gully Buddle Weir. A commercial development consultant,
Stephen Jennings, was also appointed. Jennings was an economist for investment bank Credit Suisse First Boston, and formerly worked for the Treasury. He left the negotiating team in late 1992 and was replaced by another economist, Richard Meade, from First NZ Capital. The Claims Manager, Anake Goodall, also worked for the B-Team and was a key negotiator in the later phases of the process, when Tā Tipene and the Minister of Treaty Negotiations, Sir Doug Graham, were not on speaking terms. Another group of advisors to the Ngāi Tahu negotiating group was the C-Team, who worked on specific aspects of the negotiations. Justine Inns, Jan West, and Sandra Cook worked on specific cultural redress items, Te Maire Tau led the team working on the historical account and apology, and Tony Sewell helped with matters relating to economic redress.

When Ngāi Tahu began its negotiations with the Crown, there was no established policy for reparations regarding historical grievances. As historian James Belich has noted, if any commentator had claimed in the late 1970s that the government would provide Treaty settlements worth tens and even hundreds of millions to iwi, they would have been “carted away by white coats”. The Crown had to manage expectations, and ensure that settlements would be financially affordable, yet large enough to satisfy and settle large and at times complicated claims.

The Crown’s A-Team consisted of Sir Doug and Secretary of Justice David Oughton. The B-Team initially was made up of a diverse array of officials from various different government departments including the Treaty of Waitangi Policy Unit (ToWPU), the Crown Law Office (CLO), the Treasury, the Department of Conservation, Te Puni Kōkiri, the Department of the Prime Minister and Cabinet, and others. The Crown officials were generally led by the ToWPU, but the CLO and Treasury had significant clout and power. Dozens of officials would come and go during the negotiations. Sir Doug was the only constant on the Crown’s side throughout.

The Ngāi Tahu agreement was the first comprehensive settlement to address environmental and resource management claims, in addition to grievances relating to the minimal sums paid for lands in the purchases of the mid-nineteenth century, and the lack of reserves provided by the Crown. Despite all of these issues, the most pressing matter for Ngāi Tahu negotiators was the establishment of a legal entity to represent the iwi. This would replace the NTMTB structure, which Ngāi Tahu viewed as impinging on their rangatiratanga because of the limited control of funds and assets that was inherent in the system. The Trust Board was ultimately accountable to the Minister of Māori Affairs, rather than to the iwi. The legislation that established the legal structure – Te Rūnanga o Ngāi Tahu – was introduced to Parliament in mid-1993, but due to opposition from two Ngāi Tahu-affiliated MPs concerned about the new structure being proposed, especially the way in which representatives would have been elected, it was not passed until 1996. Many of their requests for changes were eventually adopted in the final version of the legislation.

Shortly after the negotiations began, the Crown and Ngāi Tahu attempted to reach agreement on the financial aspect of the settlement. But Ngāi Tahu envisioned a much larger settlement, and following the fisheries settlement in September 1992, that aspect of the negotiations was delayed until late 1994. The non-financial aspects of the settlement such as environmental issues and the return of pounamu were discussed from 1991 until the negotiations broke down in 1994; but due to extended debates and disagreements among different government departments, there was little actual progress on those fronts.

There was also extensive third-party opposition from the public that had to be combatted by both Ngāi Tahu and the Crown. This included both casual and virulent racism, conservation groups, public access advocates, as well as a range of different lobby groups and industries such as fisheries, forestry, and farming. The beginning of the breakdown of the negotiations can be pinpointed to early August 1994, when the Crown asked that their monthly meetings be delayed until the announcement of the Crown’s new Treaty settlement policy at the end of that year. The Ngāi Tahu negotiators had become increasingly agitated with the lack of progress, but they perceived that the continuation of discussion was still key to the negotiation of a final settlement. The negotiations officially broke down in December 1994. Ngāi Tahu would state that the Crown had unilaterally cut off the negotiations during the period of the breakdown from the end of 1994 until the start of 1996.

Once the negotiations halted, Ngāi Tahu embarked on a litigation strategy, filing over a dozen lawsuits against various Crown departments alleging breaches of the principles of the Treaty. The strategy would not have been successful in the long-term, but litigation was effective in playing some part in pulling the Crown back to the negotiating table. With the help of Prime Minister Jim Bolger in late 1995 and early 1996, the Crown gradually approached Tā Tipene, and by mid-1996, the negotiations had officially recommenced. Following tense negotiations, an Agreement in Principle was signed in October 1996, and a Deed of Settlement in November 1997.

When Ngāi Tahu began its negotiations with the Crown, there was no established policy for reparations regarding historical grievances. As historian James Belich has noted, if any commentator had claimed in the late 1970s that the government would provide Treaty settlements worth tens and even hundreds of millions to iwi, they would have been “carted away by white coats”. The Crown had to manage expectations, and ensure that settlements would be financially affordable, yet large enough to satisfy and settle large and at times complicated claims. Ngāi Tahu negotiators had to contend with demanding communities back home who were not as attuned to the necessity for compromise. Both sides ultimately had to reach a middle point under which the settlements could be lasting, while limiting the financial scope so that the public would support the endeavour.

The Ngāi Tahu settlement established the benchmarks by which most future settlements would be negotiated over the following decades and into the present day. These benchmarks developed out of what has been described as the modern Treaty of Waitangi claims process, and were one product of what was termed the “Māori Renaissance”, a cultural and political revival for Māori in the late 20th century. The agreements were far from what the iwi had wanted, but they were nonetheless significant settlements. They were compromises aimed at achieving a measure of reconciliation and some closure for those who had been carrying historical grievances from generation to generation. While many hopes and aspirations remain, the journey has well and truly begun.