KEY POINTS:
There is a modern myth in Auckland that there is only one Maori tribe in the area - Ngati Whatua. But yesterday's Waitangi Tribunal report confirms what many in Tamaki Makaurau (Auckland) know - that the one-tribe perception is absolutely wrong.
So wrong, that for the first time
in its history the tribunal has recommended that a planned Treaty of Waitangi settlement in Auckland "must be stopped in its tracks".
In the tribunal's view there are at least five other groups - including Ngati Te Ata, Te Kawerau a Maki, Ngai Tai ki Tamaki, the Marutuahu iwi and Te Taou - which have tangata whenua status in Tamaki Makaurau and with whom the Crown should be negotiating .
That's in sharp contrast to the Crown, which sees the five other tribal groups as "cross-claimants" or "overlapping claimants" to the primary group it decided to negotiate with - Ngati Whatua o Orakei.
The tribunal said that by favouring one tribe the Crown had left the other tangata whenua of Auckland "uninformed, excluded and disrespected".
The tribunal's recommendation is a severe setback. Not just for Ngati Whatua o Orakei, the chosen winner set to benefit from the one-tribe myth, but also for the Office of Treaty Settlements, which has been told to go back to the drawing-board in the way it goes about making settlements in disputed areas.
Instead of picking a winner then dealing with cross-claimants' complaints as they come to hand, the tribunal says the Crown should get its history right, talk to all parties with claims in the area and make genuine attempts to settle grievances for all.
Although the tribunal's recommendations are not binding, they are something the Government can't ignore. The tribunal is a Government organisation, a permanent commission of inquiry headed by a judge with appointed independent experts charged with scrutinising evidence according to the Treaty of Waitangi Act. For the Government to ignore what the tribunal says would be tantamount to thumbing its nose at the law.
Minister in Charge of Treaty of Waitangi Negotiations Mark Burton says the tribunal's suggestions represented a significant shift away from the Crown's present approach and would lead to delays in settling claims where claimants are ready and willing to proceed.
"As part of my consideration of the report, I will be looking at whether there are alternative approaches that could address some of the issues raised by the Waitangi Tribunal, but in a timely way that meets the needs of both claimants and the Crown."
The problem for Burton is that there seems little else he can do. To go against the tribunal and settle with Ngati Whatua o Orakei would lead to justifiable outrage from the other Auckland tribes which have followed the proper legal process.
It's also hard to see what the Government would gain by pushing through a settlement that has been found to be unfair.
But there's also no doubt that what the tribunal proposes - investigating the claims of all the Auckland tribes before it settles with anyone - would be costly and time-consuming.
Some claimants have suggested the way forward is a hui a iwi - a gathering of all the tribes concerned to thrash out a solution.
The tribunal supported the idea but pointed out there was no incentive for Ngati Whatua o Orakei to participate. "Ngati Whatua o Orakei has too much at stake. Inevitably, we think and we imply no fault on Ngati Whatua o Orakei's part when we say this, they will want to defend the status quo ... "
As the tribunal points out, the whole purpose of Treaty settlements is to settle grievances, so to enter into one that fails to do so - and causes more grievances - defeats its purpose.
At stake here is valuable Auckland real estate on the central isthmus and the North Shore valued at at least $200 million and very likely a lot more.
But what remains a mystery is just what monetary value would have passed into Ngati Whatua o Orakei's hands had the deal gone ahead.
The Office of Treaty Settlements described the value of the deal as just $10 million in cash with $80 million of North Shore naval housing land made fiscally neutral by a 35-year leaseback arrangement to the Navy.
It also proposed to give the tribe first right of refusal for 100 years on all remaining naval housing land - believed to have a value of about $90 million, plus about $3 million of seven landbanked properties, and first right of refusal of all Crown properties put up for sale in the Auckland isthmus.
Many claimants pointed out that all the land set aside - whether it was taken up or not - does have value. And the naval housing land - at present valued at about $80 million - would in 35 years time revert to Ngati Whatua, by which time it would be worth much more.
Claimant groups also contested ownership of many pieces of land in the areas exclusively set aside for Ngati Whatua o Orakei.
Te Kawera a Maki claimed rights to land occupied by police stations in West Auckland. Maratuahu iwi, especially Ngati Paoa, claimed rights to St Georges Bay and other central waterfront land.
Ngati te Ata claimed land in Remuera, and Ngai Tai ki Tamaki claimed rights to the land under the Auckland High Court. And Te Taou had claims on land in Orakei and other parts of the central isthmus.
The Crown replied to such concerns by saying there was plenty of other land - outside the area set aside for Ngati Whatua o Orakei - to settle the other tribe's grievances. But with no information about the value of the land available for settlement, the tribunal said it was difficult to assess the Crown's position.
"We do not have enough evidence before us to identify and value what is on offer to Ngati Whatua o Orakei, and therefore what is left for the other tangata whenua groups."
While valuable real estate is contentious, so too is the proposal to give exclusive stewardship of Auckland's iconic Maungakiekie (One Tree Hill), Maungawhau (Mt Eden), and Puketapapa (Mt Roskill).
Other iwi, including Marutuahu and Te Taou and Te Kawerau a Maki, claimed significant historical association with the mountains and felt that giving predominance to Ngati Whatua o Orakei was patently unfair.
The tribunal agreed: "It was plain on the evidence before us - and available also to the Office of Treaty Settlements - that, as regards the three maunga, there are multiple interests ... This is a consequence of the intensive occupation of Tamaki Makaurau by Maori over the centuries, and the different groups' fluctuating levels of influence and activity in different places over that time."
But the main reason why the Ngati Whatua o Orakei deal has come unstuck is poor historical research - a point that was made by the Crown's senior historian, Donald Loveridge.
Other problems included inexperienced staff making historical judgments and the withholding - citing commercial confidentiality - of Ngati Whatua o Orakei's historical research from claimants.
The tribunal said it was a practice that had to change: "The Office of Treaty Settlements needs to avoid getting into situations where, for instance, historical reports are owned by anybody. The principle should be that if material of that kind is to be relied upon in settlement negotiations, it is available to all."
If anything is to to be learned form the Tamaki Makaurau fiasco, it is that shortcuts to Treaty settlements are fraught with dangers.
Although Auckland is a more complex area than most, plenty of other areas have had constant habitation by changing populations of Maori as a result of invasions, conquests and inter-marriage, creating what the the tribunal describes as "dense layers of interests".
Sorting out such dense layers is something in which the tribunal is well versed.
What needs to happen now is for the tribunal and the Office of Treaty Settlements to co-operate rather than remain adversaries.
