Baker v Waitangi Tribunal

[2014] NZHC 1177

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-2796 [2014] NZHC 1177

BETWEEN

FELICITY MARGARET KAHUKORE

BAKER
First Applicant

VERNON WINITANA Second Applicant

AND

THE WAITANGI TRIBUNAL First Respondent

THE ATTORNEY GENERAL Second Respondent

TE KOTAHI A TŪHOE Third Respondent

Hearing:	13 November 2013
Counsel:	K L Ertel and R N Zwaan for Applicants E J Devine for First Respondent V L Hardy and J Prebble for Second Respondent R E Brown for Third Respondent
Judgment:	29 May 2014

JUDGMENT OF WILLIAMS J

Introduction

[1]     The settlement of historical Treaty of Waitangi claims always attracts controversy.  When iwi or hapū settle, adjacent kin groups not settling their claims often complain that they are being drawn in by the unwelcome gravitational pull of their relations’ settlement.  That is particularly so where the unsettled neighbours are small and the settling community very large.   It is even more so where the outer boundary of the proposed settlement is not delineated by whakapapa connection, but

is scribed on a map.  In that sort of case, the gravitational pull of the settlement is

BAKER v THE WAITANGI TRIBUNAL [2014] NZHC 1177 [29 May 2014]

irresistible for all communities with connection to the land, whether large or small, settling or not.

[2]      In this case, the settling iwi is Tūhoe and the land is Te Urewera – an area roughly co-extensive with the current Urewera National Park.  A core idea in the Te Urewera-Tūhoe settlement is that Te Urewera will be accorded its own legal personality.1     Te Urewera will be the centrepiece of this settlement, not Tūhoe. Te Urewera  will  be  administered  by  a  board  comprising  a  majority  of  Tūhoe representatives.    Other  hapū  and  iwi  have  their  own  independent  interests  in

Te Urewera, and they, inevitably are greatly affected by Tūhoe’s settlement as a

result.

[3]      The applicants are Ms Kahukore Baker who purports to speak on behalf of Te Ūpokorehe,  and  Mr  Vernon  Winitana,  purporting  to  speak  on  behalf  of  Ngāti Ruapani.  In the hearing before me, that representation did not seem to be seriously contested.

[4]      Te Ūpokorehe is primarily located around Ōhiwa Harbour in the eastern Bay of Plenty.  Te Ūpokorehe territory adjoins that of their Tūhoe relations on the latter’s northern and eastern flanks.   Te Ūpokorehe claims traditional interests within Te Urewera though it also has extensive interests outside that area.

[5]      Ngāti  Ruapani  is  located around the Waikaremoana area to  the south  of Tūhoe. Almost all of Ngāti Ruapani’s traditional territory is within the borders of Te Urewera, though it does have some other interests to the South and East.

[6]      Put  simply,  Ms  Baker  and  Mr Winitana  say that  the  Te  Urewera-Tūhoe settlement  and  proposed  governance structure is  so Tūhoe-dominant  that  it  will effectively settle their claims where these relate to Te Urewera, or will so constrain the Crown’s  settlement  options  in  relation  to Te  Ūpokorehe  and  Ngāti  Ruapani reparations, as to make impossible a fair and Treaty-compliant settlement of theirs.

They want to air this particular complaint in…