The media, our PM and even Māori MPs do not appear to know important history, very relevant to how the current tragic situation at Ihumātao has come about.
The greatest gap in historical knowledge is the misunderstanding that there has been a finalised Waitangi Tribunal claim and settlement at Ihumātao. Therefore, the Government is claiming that issues at Ihumātao cannot be further discussed, litigated or reopened because of the precedent it would create. This is not historically supported by evidence held by the Crown. The fact is, there has not been any such Waitangi settlement of the Wai 8 1986 Manukau area claim, so attempts now to find a just solution are not constrained by a previous full and final Treaty settlement over this land.
The tragedy of this case is that the 1975 Treaty of Waitangi Act allowed only claims from 1975 onwards at the time. Unfortunately, Ihumātao was comprehensively discussed in the Wai 8 1986 Manukau claim, evidence and hearings at exactly the same time as the Act was changed to allow claims back to 1840. Wai 8 was lodged in 1985 by Dame Nganeko Minhinnick on behalf of the Waiohua tribal collective of Ihumātao hapu; Te Akitai, Te Ahiwaru and Waiohua iwi of Ngati te Ata and Ngati Tamaoho. The Tribunal reported in July 1986. Sian Elias, our former Chief Justice, was Te Waiohu's leading lawyer. During this 1975-1985 period, claims and issues that occurred before 1975 could not be ruled on - some said even heard - by the Tribunal.
Although the Tribunal heard evidence of George Grey's unprovoked attack on these communities, the unjust confiscations and terrible things the Crown did at Ihumātao, Mangere, Manurewa, Karaka and Waiuku, between 1840 and 1975, it was legally prevented from making them formal claims or findings or recommendations of reparations. The Wai 8 Tribunal report did however suggest very strongly that the Crown needed to find a way of redressing the land confiscations and other illegal and immoral actions outside the formal findings.
When the 1986 report was released and read there were many many tears and long tangi but also hope for the future. Then-Environment Minister Phil Goff, and many other government departments, state and Auckland agencies and organisations made many promises to the Tribunal and to Waiohua following the release. Waiohua iwi believed these promises but were betrayed as the Crown never kept its assurances and successive governments failed to do so over and over again. They even consistently refused to enter negotiations to settle the Wai 8 claim as the Auckland Regional Council would be dealing with it satisfactorily.
After 1986, when it became apparent that the Tribunal was seriously constrained with what it could find and recommend, it was suggested to claimants Nganeko Minhinnick, Mahia and Joe Wilson and Carmen Kirkwood by their lawyers that they resubmit a new claim. These Waiohua leaders at the time felt that the assurances provided would lead to solutions to the challenges and justice would prevail. However it didn't take long before it became very apparent it was a second tragedy not to have done so, as the new Manukau sewage plant discharge struggle, local industrial and airport expansion quickly showed.
We arrive today then, as we have many times in the past 45 years, with a long, long history of totally inadequate Crown actions and a failure to find fair morally just and ethical ways forward. The only tangata whenua Waitangi claim, Wai 8, has never been settled. The current era Waiohua mandating claims 2010-2017 tragically did not include a claim to settle Wai 8, to reopen Wai 8 or lodge a new claim over the land confiscations around Mangere, Waiuku and Karaka. What it did do was to define tribal boundaries for settlements and suggest who the Crown should mandate as Mana Whenua for these processes. It also acknowledged where other tribes claims create overlapping historical links and possible relationships.
According to the written decisions, Te Kawerau a Maki was never mandated by the Crown to have prime tangata whenua or Government's mandated mana whenua status at Ihumātao, and Ihumātao is not within their agreed tribal mandated boundaries in their settlement either. Government and the Tribunal ruled they are part of an overlapping tribe with an interest in the area. Consequently, Te Kawerau a Maki's mana whenua rights there exist primarily through their Waiohua Te Akitai Te Ahiwaru links who have been strongly split over Kawerau a Maki's desire to control the Makaurau Marae Committee and insert claims of Crown Treaty mandate. Kawerau a Maki's mana here at Makaurau Marae appears to come from the housing deal they offered to elders at Makaurau Marae that Te Ahiwaru and Akitai could not achieve, or did not want to proceed.
The only moral thing for the Crown is to find a way for the land to be returned, probably through the Auckland Council with co-governance reserve provisions. If this is accompanied with the same housing benefits that Kawerau a Maki has negotiated with Fletchers, a deal can be achieved.
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• John McCaffery is a retired senior lecturer, academic and researcher with Te Puna Wananga School of Māori & School of Indigenous Studies at University of Auckland.