Battling it out in court: the litigation phase in the Ngāi Tahu Treaty settlement negotiation

Nā Dr Martin Fisher

The Ngāi Tahu negotiations with the Crown can be split into three distinct phases: September 1991 to November 1994 when the two sides began to explore the big-picture context of settlement, a period of litigation between 1994 and 1996, and the final phase of negotiations from April 1996 until a Deed was signed in November 1997. This article explores an intriguing stage in the negotiations: the rejected interim settlement that the Crown offered in late 1994, and some of the key litigation Ngāi Tahu used to get the Crown back to the negotiating table. Not all of the lawsuits were successful and the strategy would not have worked in the long-term, but in the short-term provided Ngāi Tahu with enough leverage to recommence negotiations under much better terms than they had begun.

As Waikato-Tainui proceeded to sign its Agreement in Principle in late December 1994 for its raupatu (confiscation) settlement, the Ngāi Tahu negotiations completely broke down. This breakdown 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 the year. Ngāi Tahu had become increasingly agitated with the lack of progress occurring at the monthly meetings, 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 breakdown, which lasted until the start of 1996.

In November 1994, an interim settlement had been offered to Ngāi Tahu. Negotiators took the offer back to the iwi, and it was rejected. The offer proposed that Ngāi Tahu receive freehold title to Rarotoka Island (in Foveaux Strait) but with the imposition of a marginal strip, and also receive title to Tūtaepatu Lagoon near Woodend Beach in Canterbury. Also, $10 million worth of land-banked properties were offered in exchange for a revised land bank system.

Ngāi Tahu was certainly not averse to the idea of an interim settlement, and had long advocated that a series of interim settlements would be better than the idea of a full and final settlement. However, their negotiators felt the offer was inadequate. Their concerns related to neglected issues such as the importance of the unique Ngāi Tahu land banking system (under which they could on-sell properties in the landbank and add further properties). There was also no mention of Whenua Hou and the Crown Tītī Islands, and negotiators felt that there were insufficient concessions on pounamu, Rarotoka Island, and title to the Arahura Valley. These shortcomings were related to the Department of Conservation (DOC) and were reflective of the distinct challenges existing within the Crown’s own policy development process.

DOC would begin to play a prominent role in the negotiations from 1994 onwards, taking on the role often played by Treasury as key internal government critic of the treaty settlement process.

Throughout 1995, Ngāi Tahu engaged in litigation against the Crown. At one point, there were 12 concurrent lawsuits in place. Returning to the courts had always remained an option for Ngāi Tahu, and the prospect grew more likely as negotiations progressed towards the breakdown in 1994. The courts had already been the site of boundary disputes between Ngāi Tahu and Rangitāne and other northern South Island iwi and hapū, and also a series of lawsuits involving the Treaty of Waitangi Fisheries Commission.
By the end of 1994, Ngāi Tahu had turned the focus of litigation towards the Crown: the Attorney-General, Landcorp, DOC, and Coalcorp (now Solid Energy).

The first court action concerned the commercial rights Ngāi Tahu believed it should have priority over regarding the whales around the Kaikōura area. The Crown also had given an undertaking that it would not issue any more pounamu licences pending the transfer of ownership of pounamu to Ngāi Tahu, but as the negotiations dragged on Ngāi Tahu saw cause to doubt this assurance. In early 1995, the iwi took proceedings against the Crown to restrain it from issuing pounamu licences, in the belief that the Crown had not honoured its undertaking. Ngāi Tahu received favourable judgments in both the pounamu and whales cases, and through this were able to force the Crown back to the negotiating table.

There was a significant fear from within the Crown that the Tribunal would use its binding powers to return Crown Forests in the Ngāi Tahu rohe to the iwi, with a very significant financial award made possible under the terms of the Crown Forest Assets Act. The option for Ngāi Tahu to take their case back to the Waitangi Tribunal always remained a possibility, and it was occasionally threatened in the first year of the negotiations to stress to the Crown its own leverage. This threat was finally carried out in late 1994…

Specific government assets such as Landcorp, Coalcorp, and SOE properties were one focus of the lawsuits. Disagreements over Landcorp centred on the number of Landcorp farming properties Ngāi Tahu would be allowed to visit to decide on their suitability for inclusion in their final settlement – Ngāi Tahu wanted the opportunity to visit all Landcorp farming properties in their takiwā. The Crown said visiting five farms only would be more “reasonable”. Eventually some information was shared by Crown officials regarding stock numbers, but valuations were not forthcoming, with Treasury deeming them sensitive commercial information.

Ngāi Tahu also filed proceedings against the Crown in relation to the Coal Export Project being planned on Te Tai Poutini. Coalcorp was developing coal mines focused specifically on the export market, and Ngāi Tahu sought to have their interests protected in such a project. In June 1995 Ngāi Tahu amended their claim to the Waitangi Tribunal to include binding recommendations for the return of all SOE properties in the Ngāi Tahu rohe. They had also sought access to forestry assets held by the Crown Forestry Rental Trust. There was a significant fear from within the Crown that the Tribunal would use its binding powers to return Crown Forests in the Ngāi Tahu rohe to the iwi, with a very significant financial award made possible under the terms of the Crown Forest Assets Act.

The option for Ngāi Tahu to take their case back to the Waitangi Tribunal always remained a possibility, and it was occasionally threatened in the first year of the negotiations to stress to the Crown its own leverage. This threat was finally carried out in late 1994 and a meeting with the Tribunal was planned for early 1995. This was originally meant to be presided over by Judge Ashley McHugh, who had presided in the original inquiry and was seen by many as sympathetic to Ngāi Tahu because of his role as Presiding Officer of the Ngāi Tahu Waitangi Tribunal inquiry. At late notice the Chairperson of the Waitangi Tribunal, Chief Judge Eddie Durie, replaced McHugh, and, citing a lack of funding and time, refused to hear the case. Ngāi Tahu subsequently filed proceedings against Durie and against the Attorney-General for not providing enough funding for the Waitangi Tribunal.

Ngāi Tahu clearly presented a very difficult decision for Durie. Ngāi Tahu had been one of the first major hearings of the post-1985 era, and four separate reports had been published between 1991 and 1995 regarding the Ngāi Tahu claim. The backlog of other claims was quite substantial, and Durie considered that Ngāi Tahu had already been given a large amount of the Tribunal’s attention and resources. Nevertheless, the option for Ngāi Tahu to return to the Tribunal had always existed, and from the point of view of the majority of Ngāi Tahu beneficiaries, returning to the Tribunal was clearly the best course of action at that time.

The litigation strategy employed by the Ngāi Tahu negotiators was not universally accepted amongst the diverse Ngāi Tahu community. Tensions with the negotiating group largely simmered during the litigation phase. However, once litigation had stretched on for a year, some tribal members voiced their strong disapproval of this tactic.

The negotiating team ensured opportunities were available for tribal members to communicate with them. One tribal member wrote a letter to (now Tā) Tipene O’Regan and stressed that the Privy Council and High Court would certainly decide on the basis of precedent. As the Waikato-Tainui settlement was nearly finalised, $170 million would be the realistic precedent. Amongst many critical comments, the writer stated that he thought that the Crown did not so much break off negotiations as was forced to:

“My opinion is that Ngāi Tahu may have misinterpreted the break off of negotiations with the Crown. Much weight has been put on the mischievous intent of the Crown rather than they were out of their depth and grossly inefficient. The Crown broke off negotiations because they could not answer all the complex issues presented by Ngāi Tahu. They needed to go to ground. As it turns out they made a mess of things with the ‘Fiscal Envelope’. The point I am making is that Ngāi Tahu have the opportunity to capitalise on this position, i.e. Ngāi Tahu were the guinea pigs. Incidentally there is in Crown circles a lot of sympathy for the Ngāi Tahu position.”

He further pointed out that despite the series of judicial proceedings the Crown had never cut off the main source of funding for the iwi: the unique land banking agreement with which they were able to purchase lands with their own funds. To this tribal member, it was a vivid example of the measured response that the Crown made to the aggressive litigation strategy, but it was one that he believed would not last forever. While this one opinion was not accepted by all Ngāi Tahu negotiators, it would continue to gain traction. Rakiihia Tau Snr defended the legal action as necessary because he had no trust in the political process. Tau Snr believed that the courts would be the only forum under which justice could be obtained, and thus the litigation needed to continue.

After the precedent-setting nature of the Waikato-Tainui 1995 settlement, Ngāi Tahu negotiators gradually accepted that they would have to maximise their gains within the limited fiscal parameters that they perceived had been set. By the start of 1996, intervention by Prime Minister Jim Bolger had succeeded in bringing the two sides together. Bolger had a positive relationship with O’Regan, and since the relationship between Treaty Negotiations Minister Doug Graham and O’Regan had essentially soured, Bolger took command of the situation. Bolger would play a major role in recommencing the negotiations in 1996, and Department of Prime Minister and Cabinet (DPMC) officials played a prominent role through this period. While Tā Tipene O’Regan and Rakiihia Tau Snr remained the Ngāi Tahu principals and were intimately involved in the negotiations, they left the minutiae of negotiation to Ngāi Tahu officials. Claims Manager Anake Goodall was joined by long-time legal advisor Nick Davidson, commercial advisor Richard Meade, and Ngāi Tahu Māori Trust Board Secretary Sid Ashton.

The litigation strategy had its desired effect. Ngāi Tahu had the Crown’s attention, and the path to a settlement acceptable to both sides was now clear.

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