(~ WAKATU Ngāti Rārua Atiawa SUBMISSION ON THE PUBLIC WORKS (OFFER BACK OF AND COMPENSATION FOR ACQUIRED LAN AMENDMENT BILL TO THE

Transcription

1 PW/18 SUBMISSION TO THE LOCAL GOVERNMENT AND ENVIRONMENT SELECT COMMITTEE ON THE PUBLIC WORKS (OFFER BACK OF AND COMPENSATION FOR ACQUIRED LAN AMENDMENT BILL (~ WAKATU Ngāti Rārua Atiawa INCORPORAT 101 ~

2 Contents Submitter details Submission details Support for the submission Submission to the Local Government and Environment Select Committee (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) Introduction Our lands a brief history Support for the Bill Recommendations for change Explanatory note and references to the Crown Clause 4 and 5 Solatium payments General recommendations for change Treaty of Waitangi provision Summary of recommendations Appendix One who we are WAKATU [] li~l~ll.'i'~el tl.~! [] ili ~l Ngāti Rārua Ātiawa

3 Submitter details Wakatu Incorporation, Ngati Rarua Atiawa Board and the beneficiaries of the WAl 56 claim. Contact details: Wakatu House, Montgomery Square, PO Box 440, Nelson; Phone: Submission details We wish to be heard in support of our submission. Mr Paul Te Poa Karoro Morgan, Chairman of Wakatu Incorporation, will present the submission on behalf of Wakatu Incorporation, Ngati Rarua Atiawa Board and the beneficiaries of the WAl 56 claim. He can be contacted at the above address and telephone number. We support the Public Works (Offer Back of and Compensation for Acquired Lands) Amendment Bill, but have concerns about some areas of the Bill. Our concerns, along with our recommendations are set out in this submission. Support for the submission The following groups and organisations support this submission: Tiakina te Taiao. Ngati Koata Trust. IDWAKATU HCOR;PORAX ON Ngāti Rārua Atiawa

4 Submission to the Local Government and Environment Select Committee on the Public Works (Offer Back of and Compensation for Acquired Lands) Amendment Bill Introduction My name is Paul Te Poa Karoro Morgan, I have been a member of the Committee of Management of Wakatu Incorporation since 1986 and Chairman since I am also Chairman of the Ngati Rarua Atiawa Iwi Trust Board, a position I have held since that Trust was created in l have been involved in issues relating to the formation of Wakatu Incorporation and the problems faced by that organisation since its inception in Prior to that date, I attended a number of hui and meetings held in the northern South Island and North Island. I accompanied my father, Kiwa Morgan, who became one of the members of the Committee of Management of the Incorporation in Wakatu Incorporation is based in Nelson, It has over 3000 shareholders who are descendants of the rangatira and families of four iwi Ngati Koata, Ngati Rarua, Te Atiawa and Ngati Tama. Wakatu Incorporation is a family business of the sea and land. We have diverse commercial land investments and developments. The Incorporation is also known for its aquaculture and horticulture developments and for the } WAKATU Ngāti Rārua Atiawa NCOR~PORAT O

5 significant contribution it has made to the economic wellbeing of the Nelson and Marlborough region since its inception in This submission is presented on behalf of the shareholders of Wakatu Incorporation, Ngati Rarua Atiawa Board and the beneficiaries of the WAl 56 claim. WAl 56 beneficiaries represent a group wider than the beneficiaries of the Incorporation and the Trust because not all descendants of our original owners are now beneficiaries. As a group, however, we all descend from the families who held mana whenua over the Nelson, Motueka and Golden Bay areas in Our lands a brief history When Wakatu incorporation was created in 1977, our owners inherited a long tradition of protest, petition and submission by our tupuna, dating from the 1850s, over the administration and management of their Native Reserve lands in Motueka and Nelson. A recurring theme among the many grievances voiced was the continued alienation of tupuna from our land as a result of the Public Works Act and other legislation which empowered the taking of our land for public works. Between 1841 and 1977 our lands were managed on our behalf by the Public Trustee, Native Trustee and later the Maori Trustee. During this time, we suffered serious economic, cultural and social hardship because we were alienated from our land either because it was subject to perpetual leases, was taken under public works legislation or was sold. IDWAKATU Ngāti Rārua Atiawa

6 = In the Waitangi Tribunal's view, land takings, particularly under public works legislation, occurred in circumstances where the Crown could have limited its takings to leasehold, and quite frequently when the work was not in the national interest, nor was it essential that Maori land be used. There was no legislative requirement that the owners be consulted or even informed or be given the opportunity to object, so neither the Maori Trustee nor the taking authority did so. There are many cases where our land was taken for public works, without consent, without compensation being paid (or inadequate compensation) and in circumstances where the taking of land was not necessary. Two examples will suffice to illustrate this point: 1924: Pt Secs 62 64; Taken for Auckland Point School During 1924, the Nelson Education Board took steps to appropriate the freehold and leasehold of 1ac 2r 29.0p of Pt Sections 62, 63 and 64, Nelson City, as a site for Auckland Point School. Sections were part of "Matangi Awhio" the ancient pa site (from 1450 AD) of the tipuna Pohea who was the first individual resident of the Nelson City area who can be identified by name. This was also the site of pa, kainga and fishing camps for every succeeding wave of occupation since that date. "Matangi Awhio" was the site to which Maori from outlying districts came to stay and to sell their produce to colonial settlers after European settlement in Because of all these associations "Matangi Awhio" has enormous mana as ( WAKATU Ngāti Rārua Atiawa incorporafto

7 whenua tuturu, he waahi kainga o nga tipuna rangatira, he waahi tapu. As such, our title to this area should never have been extinq uished. The earliest trustees recognised its cultural importance to the tangata whenua of that time. Henry Thompson, who selected these sections as Tenths Reserves in 1842, and Bishop Selwyn knew its ancient values to Maori, as did their immediate successors in office, through to the 1880s. But the Native Trustee obviously did not. As a result of his ignorance of the district and its tangata whenua inhabitants (his beneficiaries), a consequence of his remoteness asa Wellington based administrator, he gave up the freehold title of this most important taonga whenua ki tangata whenua. 1959: Section 1099 Nelson, Haulashore Island; Taken for Pleasure Grounds This site was an important fishing camp for Motueka Maori who, at different seasons for various fishstocks, would travel across from westem Tasman Bay to fish the waters off the Boulder Bank and within the sheltered estuary. Nelson City Council took this site for recreational purposes under the provisions of the Public Works Act in the 1920s. The owners of this land were not consulted about the acquisition and were probably unaware of this whole sequence of exchanges until the matter was fait accompli. The records show that the Maori Trustee virtually initiated the sale in contravention of his responsibility to protect the lands in his Trust and the interests of his ( WAKATU Ngāti Rārua Atiawa

8 beneficiaries. As a result, the beneficiaries have once again lost forever a special piece of land, which has considerable historical and cultural significance, with very high environmental values at the gateway to Nelson Haven and Nelson City, as well as considerable commercial potential. 10. The Waitangi Tribunal found that the compulsory taking of land in the circumstances outlined above was in breach of the Treaty to the prejudice of all of the beneficial owners. Furthermore, the Crown's failure to protect our estate breached the article 2 guarantees that lands would be retained by Māori for as long as we wished to retain them, and the duty of active protection. 11. Through Wakatu Incorporation, our owners have built over 25 years a better economic base than they were handed back in However the legacy of perpetual leases on our land, combined with the impact of the Public Works Act and related legislation has and will continue to involve conflict and cost. Further, the building of the Incorporation's base has required initiative and effort by the owners. My experience indicates they have not been helped by most Crown legislation and the legislation that has helped has been only partial. 12. A comprehensive account of our history and background is attached to this submission for the Committee's information and reference, as Appendix One. Ngāti Rārua Ātiawa

9 Support for the Bill 13. We support the objectives of the Public Works (Offer Back of and Compensation for Acquired Lands) Amendment Bill for the following reasons: Since 1840, a considerable amount of Maori land has been taken for public works, often with no or inadequate compensation. It is appropriate that this land should now be returned to the former owners when it is no longer being used for the purpose for which it was taken, at the earliest possible opportunity with the least cost and inconvenience to the former owners. The Bill is consistent with Waitangi Tribunal recommendations for amendments to strengthen the Public Works Act. The Te Tau lhu, Ngai Tahu, Te Maunga and Turangi reports made a number of recommendations that the 1981 Act should be amended to curtail or eliminate the exercise of powers that breach Treaty of Waitangi principles. We support those recommendations. Recommendations for change 14. We submit that the provisions of the Bill should be strengthened in order to achieve the Bill's objectives. Accordingly, a number of recommendations to amend the Bill's provisions are included in our submission and are set out below. KATU ;lncorporattod Ngāti Rārua Atiawa

10 Explanatory note and references to the 'Crown' 15. The explanatory note to the Bill refers to land taken or acquired by the Crown. This should be amended to refer to the Crown and any other acquiring authority, including for example, local authorities and private providers who are empowered to acquire land for public works. 16. References to the 'Crown' appear throughout the Bill (see clauses 4(a), 5(ba) and clause 6). Once again, this reference should be amended to refer to the "Crown and any acquiring authority, such as local authorities and private providers". 17. These recommendations reflect the role that local authorities and private organisations have played and continue to play in our region by acquiring or receiving Maori land for public works. Clause 4 and clause We support the objectives of clause 4 and 5 of the Bill, which amend section 40 of the Public Works Act 1981 by inserting more stringent offer back requirements. 19. We support the amendment contained in clause 5, which provides that where the Crown originally acquired or alienated the land for no compensation the offer back shall be to return the land at no cost. 20. We submit that clause 5 and the amendment to section 40(2) be strengthened by stating that where land was acquired for inadequate compensation, it must IDWAKATU O CORPORAT Oi 10 Ngāti Rārua Atiawa

11 be returned at no cost or at a reduced cost which takes into account the inadequate amount of compensation paid at the time of acquisition. This recommendation reflects the fact that in many cases, inadequate compensation was paid to Maori owners at the time our land was taken. 21. In all cases, even where adequate compensation was paid to the owners at the time of acquisition, the Crown or other authority should be required to consider the following criteria when determining the price at which land should be offered back to the former Maori owners. The Crown or offer back authority should: Share with the owners the increased value in the land arising from the use and development of their land; and Have regard to the means of the former Maori owners; and Have regard to the length of time the land has been used for a public work; and Have regard to the circumstances surrounding the compulsory acquisition of land; and Have regard to the special circumstances of multiple Maori owners and to seek accommodation in such circumstances; and Have regard to any environmental or other damage that has been caused to the land as a result of the public work and the impact on the value of the land as a result. 11 ( WAKATU il~ll[.l:i'...=;l:l EilP Ngāti Rārua Atiawa

12 Solatium payments 22, The Bill inserts a new provision for a solatium payment to be made by the Crown for loss of land and/or opportunities associated with the use of land that has been acquired for a public work and not actually used for that purpose. 23. l note the assessment process set out in clause 6 (section 42AA(2)) requires the Land Valuation Tribunal to have regard to the means of the former owners and the circumstances surrounding the compulsory acquisition of the land when assessing the compensation amount. In my view, the Tribunal should also be required to have regard to the market value of the land and its current use, when making its assessment. 24. l also note that the existing compensation provisions in the Public Works Act invoke a different process for determining compensation compared with the process set out in clause 6 of the Bill. The current provisions of section 42A for example, limit solatium payments for the loss of the opportunity to purchase land to $20,000. In my view, the provisions of section 42A should also be amended to reflect clause 6 of the Bill. There should, for example, be no limit under section 42A to the amount of compensation payable to previous landowners, Instead, the Crown or other authority should be empowered to consider all of the facts on a case by case basis, taking into account the factors listed above at paragraph 21 as well as the factors listed in section 42A. 12 IDWAKATU ANCOR:PORAf II1~ Ngāti Rārua A tiawa

13 25. Furthermore, section 42A should be amended to ensure that land is not offered for return to Maori claimants as part of a Treaty settlement process without first consulting with the original Maori owners of that land to determine whether those owners seek the return of the land. This proposed amendment is consistent with the objectives of the Bill and will ensure that the Public Works Act is no longer used in ways which create further Treaty grievances, by retuming land to groups who are not the original owners of that land, nor do they have the strongest customary rights in relation to that land. General recommendations for change 26. As well as the specific recommendations for amendments that are set out above, we suggest the following amendment: Treaty of Waitangi provision 27. Currently, the Public Works Act does not include a requirement to have regard to the principles of the Treaty of Waitangi when administering or interpreting the Act. This approach is not consistent with the legal development of the Treaty principles in the courts and Waitangi Tribunal over the past thirty years, nor does it reflect legislative changes in other areas (such as Te Ture Whenua Maori Act 1993) which require decisions to be!dwakatu made in accordance with Treaty principles, with the objective of retaining Maori land in Maori ownership. We therefore recommend that the following provision be included in the Bill: ANCOR "All people exercising functions and powers under the [Public Works] Act must act in a manner which is consistent with the principles of the Treaty of Waitangi" PORAT40d 13 Ngāti Rārua Atiawa

14 Summary of recommendations 28. In summary, we support the Bill and make the following recommendations for change to improve its objectives: (a) Amend the references to the Crown to include the Crown, local authorities and private providers. (b) Where land is acquired for inadequate compensation, the offer back price should be to return the land at no cost or at a reduced cost to reflect the amount of compensation paid originally. (c) The criteria for determining the offer back price should include the list of factors referred to in paragraph 21 of this submission. (d) Solatium payments should take into account, among the other factors listed in the Bill, the market value of the land and its current use. (e) (f) Section 42A of the Public Works Act 1981 should be amended to reflect the proposed section 42AA. In particular, compensation payments should not be limited to $20,000 per site. A provision requiring people exercising powers under the Public Works Act to adhere to the principles of the Treaty of Waitangi should be inserted into the Act. 29. Thank you. 14!DWAKATU imcorporatioß Ngāti Rārua Ātiawa

15 APPENDIX ONE Who we are: Wakatu Incorporation, Ngati Rarua Te Atiawa Board, WAI 56 We are the people of the Heke. This defines our unique collective identity. Our ancestors made a series of epic migrations to Te Tau lhu in the early 19th century from the Tainui and Taranaki coasts. These migrations are immortalised in our collective memory as: Te Heke Tahutahuahi 1821 Te Heke Tataramoa 1822 Te Heke Niho Puta 1824 Te Heke Niho Mango 1827 Te Heke Whirinui 1828 Te Heke Tamateuaua 1832 Te Heke Hauhaua 1832 Te Heke Paukena 1833 By 1840, four lwi held the strongest customary right in Te Tau lhu. These people are Ngati Koata, Ngati Rarua, Ngati Tama and Te Atiawa. They held manawhenua over the Nelson, Motueka and Golden Bay area. 15 ( WAKATU.=..=~==..=.=.~.l...I ~= Ngāti Rārua Atiawa

16 When the New Zealand Company arrived in the South Island in 1841, rangatira representing our families negotiated with Captain Arthur Wakefield and agreed to the European settlement of parts of the Nelson, Motueka and Golden Bay area. One of the main reasons for this agreement was to enhance trade relationships between settlers and Māori bringing mutual benefits. Under the contractual arrangements that the New Zealand Company entered into via its Deeds of Purchase, our families were entitled to retain existing Māori settlements, including urupā and cultivated land plus one tenth of the land purchased. This land became known as the Tenths Reserves. The Waitangi Tribunal has determined that the total tenth of land which ought to have been reserved was 17,200 acres, from the final 172,000 acres which was eventually secured for European settlement, plus existing Māori settlements. Our position is that 45,000 acres ought to have been reserved, based on the 450,000 acres of land that was surveyed in the districts of Nelson, Waimea, Motueka, Moutere and parts of the Golden Bay area, within which 172,000 acres had been granted to the New Zealand Company. However by 1848, only 5,100 acres had been allocated as tenths reserves, falling well short of the original contractual agreement. In the Waitangi Tribunal's view this failure to secure the full tenth was a breach of the Crown's fiduciary obligations and its duties of active protection and the duty to act in good faith. The Crown also failed to deliver on the Treaty promise of mutual benefit, which required the retention of sufficient land for Māori to prosper alongside settlers in the new economy. 16 { WAKATU am ai,~m[~nk~n:u,j[on :w:a,u uoj pn Ngāti Rārua Ātiawa

17 In 1893, after hearing extensive evidence, the Native Land Court defined the proportionate interests in the Nelson, Motueka and Golden Bay area based on the original ownership of the land in The Native Land Court also identified 254 ancestors as the original joint owners of the Tenths Reserves. WAl 56 claimants represent those families who descend from the 254 original owners descended from our ancestors who held authority and were recognised as tangata whenua over the Nelson, Motueka and Golden Bay area at the time of European settlement in Since 1841, despite serious and persistent Treaty breaches, which have alienated us from our land, we have maintained our rights and responsibilities as tangata whenua. Between 1841 and 1977 our lands were managed on our behalf by the Public Trustee, Native Trustee and later Maori the Trustee. During this time, we suffered serious economic, cultural and social hardship because we were alienated from our land either because it was subject to perpetual leases, was taken under public works legislation or was sold. In the Waitangi Tribunal's view, land takings, particularly under public works legislation, occurred in circumstances where the Crown could have limited its takings to leasehold, and quite frequently when the work was not in the national interest, nor was it essential that Maori land be used. There was no legislative requirement that the owners be consulted or even informed or be given the opportunity to object, so neither the Maori Trustee nor the taking authority did so. The Waitangi Tribunal found that the compulsory taking of land in these circumstances was in breach of the Treaty to the prejudice of all of the beneficial owners. Furthermore, the Crown's failure to protect the estate breached 2 the article 17 ( WAKATU Ngāti Rārua Atiawa MCORPORAT 0i

18 guarantee that lands would be retained by Maori for as long as we wished to retain them, and the duty of active protection. Legislation such as the Maori Affairs Act 1953 compounded land loss by enabling the Maori Trustee to acquire by compulsion the 'uneconomic' interests of owners of Maori land. Under the provisions of the 1955 Act, 348 people were removed from the owners' roll of the Tenths Reserves. For these people, the cultural loss of their turangawaewae far outweighed the economic loss involved. This loss not only affected the individuals concerned but also all future generations of their descendants. A major objective of the WAl 56 claim is therefore to remedy this position. In 1977, after many years of hard work and lobbying by the owners, the Maori Trustee's administration of the Tenths Reserves was revoked. The owners agreed to establish the Wakatu Incorporation to administer and manage the surviving native title reserves of Nelson City, Motueka and some Golden Bay lands. These were the remainder of lands that had been alienated from the direct ownership, administration and management of those rangatira and whanau of Ngati. Koata, Ngati Rarua, Ngati Tama and Te Atiawa who had signed the Deeds of Purchase with Captain Arthur Wakefield 135 years earlier. Finally the descendants of those original owners are able to exercise autonomy and control over our lands and assets although we recognise there is still much to resolve. IDWAKATU 18 Ngāti Rārua A tiawa