High Court judge Sally Fitzgerald has dismissed Ngati Te Ata claims relating to ancestral land at Maioro – on the Awhitu Peninsula at the mouth of the Waikato River and now subject to an ironsands mining licence to NZ Steel Ltd – in a 221-page judgment covering issues that date back to 1864.
She’s proposed, instead, that Ngati Te Atata take its claims back to the Treaty of Waitangi settlement process.
This case was heard from June-December last year and the judge issued her decision on 31 July.
In dismissing the claims, Justice Fitzgerald commented: “I do not ignore the fact that Ngati Te Ata has a number of valid Treaty grievances, a point not substantively challenged by the Crown. In my view, the claims advanced in these proceedings are, in substance, quintessential Treaty claims and ought to be resolved through the Treaty settlement process.”
She also commented on the frustrations of the various processes, now adding further to a delayed resolution through her own judgment: “In more recent times, the Crown has accepted that certain land confiscations of the late 1800s breached its obligations under the Treaty of Waitangi… For a variety of reasons and despite the passage of some 30 years, the Crown & Ngati Te Ata are yet to reach a settlement of Ngati Te Ata’s Treaty claims. Frustrated at the lack of progress, the plaintiffs commenced these proceedings in 2013.”
The Waitangi Tribunal made recommendations in 1985 on Ngati Te Ata’s Treaty claims regarding Maioro but, after 30 years of negotiation, settlement hadn’t been reached.
In this High Court case, Justice Fitzgerald held that the sale &/or the confiscation extinguished native customary title in Maioro and the public works takings were lawful exercises of the relevant statutory powers at the time.
She found that the Treaty settlement negotiations didn’t give rise to the binding obligations Ngati Te Ata suggested. While Ngati Te Ata had valid Treaty claims, they would be properly resolved through the Treaty settlement process.
The claim stretched back to November 1864, when the Crown bought most of Maioro pursuant to what the judge referred to as the Waiuku Deed. That transaction excluded a number of wahi tapu (burial grounds), including 4 in issue in these proceedings, and also provided that various habitation reserves would be granted back to members of Ngati Te Ata by way of Crown grants.
One month after that transaction, in December 1864, Maioro (including the 4 wahi tapu) was part of several blocks of land which the Crown confiscated pursuant to the NZ Settlements Act 1863. This occurred against the backdrop of the Waikato Wars. Crown grants for the wahi tapu & the habitation reserves were later issued to named members of Ngati Te Ata.
In September 1939, the Crown took one of the 4 wahi tapu under the Public Works Act 1928 for sand dune reclamation, and it was later set apart for state forest purposes. In 1959, the Crown took the remaining 3 wahi tapu were taken by the Crown under the Public Works Act for state forest purposes.
In 1966, the Government set apart the land for ironsands mining purposes under the Iron & Steel Industry Act 1959 and granted NZ Steel Ltd a licence to mine ironsands at Maioro, including the 4 wahi tapu, which made up about 21% of the licence area.
The land is still used for state forest purposes but, when trees & other vegetation are cleared, NZ Steel mines the land for ironsands to supply the Glenbrook steel mill. NZ Steel hasn’t yet mined (at least) the 4 wahi tapu in a significant way, but proposes to do so.
High Court decision, 31 July 2020: Te Ara Rangatu O Te Iwi O Ngati Te Ata Waiohua Inc v the Attorney-General
Attribution: Judgment & court notes.