Sir Douglas Kidd sympathises with iwi over Rena

Sir Douglas Kidd, right, at this week's hearing in Tauranga.Photo/George Novak

A member of the Waitangi Tribunal hearing evidence about the Crown's conduct after the Rena grounding says he can understand why Motiti Island hapu and iwi were "feeling betrayed".

Sir Douglas Kidd made the comment yesterday on the last day of an urgent Waitangi Tribunal inquiry called to hear evidence from three groups of Motiti Island claimants who claim the Crown has breached its Treaty obligations after signing a " secret" deal with Rena's owners.

He made the comment in response to a statement from a Crown official that the rights of tangata whenua had been preserved under the agreement.

Sir Douglas said he was reminded of the ancient line "we should beware of Greeks bearing gifts".

"I can accept the negotiations were carried out in the context of total security and confidence but I would have thought the Crown should have been thinking ahead and thought about having talks with its Treaty partner, Motiti iwi, and sought their views before settling ... You can understand why they are feeling betrayed," he said .

On October 4, 2012, the Crown and Rena's owners, Daina Shipping Company, signed a "wreck removal" agreement under which the Government would be paid $10.4 million if a resource consent to leave the remainder of the wreck on the reef was granted.

Last month, Rena's owners applied for a resource consent to do so. Representatives from Ngai te Hapu, Motiti Rohe Moana Trust and Maatatahua District Maori Council argued the Crown's failure to consult its Treaty partner had resulted in a "clear" breach of the Treaty, and the deed had locked the Crown into supporting the resource consent.

Dr Matthew Palmer, QC, the Crown's lead negotiator in securing the agreement, insisted that was not the case.

It was not reasonable to expect the Crown to have consulted with local tangata whenua on a possible resource application and when the agreement was signed it was not clear one was likely or what the possible parameters would be, he said.

The Crown had not failed in its duty to be Treaty compliant and the key reasons for negotiating in secret was the major concern the Rena's owners might walk away.

Going public would therefore have been "hugely prejudicial" to the good faith negotiations.

The agreement did not impinge on the Crown rights to oppose the resource consent should it decide to do so and the legal obligation on the owners to remove the wreck remained in force, he said.

The tribunal was told the payment was contingent on the shipping company making "substantial cost savings" by leaving the wreck on the reef after a successful resource consent process. The Rena debris field is about 3000 tonnes, and the cost to remove the wreck and debris is around $300 million, that is on top of the $300 million already spent on the salvage.