October 2014 – Whiringa-ā-nuku 2014 Special Issue – The Tūhoe-Crown Settlement Editors Carwyn Jones Craig Linkhorn Editorial Publisher Dr Carwyn Jones Māori Law Review Ltd PO Box 25433 This special issue of the Māori Law Review focuses on the settlement of Wellington 6146 New Zealand Tūhoe’s historic Treaty claims. This is a remarkable settlement in many ways. T +64 27 444 9966 W māorilawreview.co.nz First, there is the history of Tūhoe-Crown relations. As Dr Vincent Student Editor O’Malley identifies in this issue, this is a history that has been marked by Kohe Ruwhiu Tūhoe assertions of mana motuhake and often brutal Crown action Consultant Editors directed at eroding Tūhoe autonomy. The Crown’s military campaign and Tom Bennion scorched earth tactics of the 1870s is perhaps the starkest illustration of John Borrows the violence inflicted by the Crown. However, the subsequent Judge Craig Coxhead Jacinta Ruru confiscations and later land-takings along with the failure to implement Māmari Stephens the provisions of the 1896 agreement between Tūhoe and the Crown that would have recognised Tūhoe’s internal autonomy, also undermined © Copyright Māori Law Review Ltd 2014. No part Tūhoe’s self-determination. Through this settlement, the Crown and may be reproduced by any Tūhoe are confronting this history. process without prior written permission. If it is significant that the Crown is facing up to its past interactions with This issue may be cited as: Tūhoe, it is also significant that the conceptual foundation of this (2014) October Māori LR settlement has always been about giving expression to Te Mana ISSN 1172-8434 Motuhake o Tūhoe into the future. A key aspect of the Waitangi Tribunal’s Te Urewera inquiry was Tūhoe’s constitutional claims. In her article Professor Rawinia Higgins points out that exercising self- determination need not be rendered as separatism. Te Whare Hou that Professor Higgins writes about provides the conceptual framework for a governance model based on Tūhoe whakapapa, land, and right to determine relationships between land and people. This concept is given physical expression in Te Kura Whare. (Continued at p 3) Use this QR code to visit our website Māori Law Review October 2014 Whiringa-ā-nuku Contents (2014) October Māori LR Special Issue – The Tūhoe-Crown Settlement Editorial – Dr Carwyn Jones 1 Historical background – Dr Vincent O’Malley 3 Te Wharehou o Tūhoe: The house that ‘we’ built – 7 Professor Rawinia Higgins Tūhoe Claims Settlement Act 2014; Te Urewera report 13 of the Waitangi Tribunal – Dr Carwyn Jones Te Urewera Act 2014 – Dr Jacinta Ruru 16 A transforming dawn? The Service Management Plan – 21 Māmari Stephens This print edition of the Māori Law Review is published 11 times each year starting with the February issue. The Māori Law Review is proud to have an association with the Faculty of Law at Victoria University of Wellington and Buddle Findlay New Zealand lawyers. http://māorilawreview.co.nz has free resources, regular updates, decisions for download and more information about the Māori Law Review. Disclaimer Any views expressed in the Māori Law Review are those of the author of each article and not necessarily those of the editors or publisher. The information contained in this publication is a summary only. You should seek professional advice before taking any action in relation to matters dealt with in this publication. The parties involved in this publication exclude any liability for any damage, loss or liability from use of or reliance on this publication. 2 māorilawreview.co.nz Māori Law Review October 2014 Whiringa-ā-nuku (Continued from p 1) The settlement also provides for innovative mechanisms for the governance of Te Urewera, which Dr Jacinta Ruru describes as “legally revolutionary here in Aotearoa New Zealand and on a world scale”. Te Urewera has been central to the Tūhoe claims and reaching agreement about the future of Te Urewera was always going to be vital to this settlement. Under the Te Urewera Act 2014, Te Urewera ceases to be a national park and is declared a legal entity in its own right. This is a truly ground-breaking aspect of the settlement. Another highly innovative component of the settlement is the Social Services Management Plan that Māmari Stephens discusses. The Service Management Plan is the central part of the ‘Mana Motuhake redress’, which is expressly aimed at transforming the relationship between Tūhoe and the Crown and again reflects the fact that the exercise of mana motuhake is a fundamental aspect of Tūhoe identity. Many settlements include relationship instruments with various government departments, but the Service Management Plan is a major development, setting out a 40 year plan with a set of ambitious goals. For these reasons, the Tūhoe settlement must be seen as an extremely important milestone in the settlement of historical Treaty claims. The Māori Law Review team is very pleased to be able to bring together this special issue of articles by authors who are so well-placed to be able to explore some of the most fascinating aspects of this hugly significant settlement. Dr Carwyn Jones Historical background Dr Vincent O'Malley Overview Dr Vincent O'Malley provides a concise historical background of events lying behind the Tūhoe-Crown settlement. Discussion Behind the Tūhoe-Crown settlement is a long and tragic history of interactions with the Crown. The demand for mana motuhake, self- determination or autonomy, was central to the Tūhoe claim. It was a demand that echoed those of previous generations of Tūhoe leaders. Although Tūhoe leaders did not sign the Treaty of Waitangi in 1840, the Crown nevertheless assumed sovereignty over their territory (Waitangi Tribunal, Te Urewera Pre-publication Report, Wai 894 Part 1, Sec. 3.3). māorilawreview.co.nz 3 Māori Law Review October 2014 Whiringa-ā-nuku Initially, though, things changed little on the ground. British sovereignty was little more than a legal fiction and the first government visitor to the Urewera district arrived 22 years after the Treaty was signed, in 1862. All that changed almost overnight. Repeated and brutal invasions of the Urewera district from the mid-1860s partly reflected its status as a place of sanctuary for Māori from elsewhere who were seeking to elude government forces (Judith Binney, Encircled Lands: Te Urewera, 1820- 1921, p.68). Kereopa Te Rau — convicted in 1871 for the murder of Opotiki missionary Carl Sylvius Völkner in March 1865 (and statutorily pardoned in 2014) — was one of those to be pursued. The Pai Marire faith he supported was officially condemned as a 'fanatical sect' in April 1865 and all 'loyal' subjects of the Crown encouraged to aid in its suppression. In September a government expeditionary force landed at Opotiki. Then, in December 1865, Crown forces launched an invasion via the Waikaremoana district, supposedly in pursuit of Pai Marire adherents fleeing the government attack on their former Turanga (Gisborne) stronghold at Waerenga-a-Hika. Entire settlements were laid waste and prisoners executed in cold blood (Waitangi Tribunal, Te Urewera Pre- publication Report, Part 2, Sec 6.5). But it was the presence in the district of Te Kooti Arikirangi Te Turuki and his followers that resulted in the most protracted and devastating period of conflict. Most of the whakarau, as they became known, had been seized by the Crown and deported to the Chatham Islands in 1866 after being captured during the East Coast Wars. Some Tūhoe taken prisoner at Waikaremoana and elsewhere were among their number. They were held without trial as 'political offenders', enduring harsh conditions and brutal treatment while the government made arrangements to confiscate their lands back at home (Waitangi Tribunal, Turanga Tangata, Turanga Whenua Report, Wai 814, 2004 Vol. 1, Sec. 5.2). In July 1868 Te Kooti and his followers escaped and made their way back to the mainland. Seeking to travel peaceably inland, Te Kooti instead found himself hounded by government forces. He retaliated in November of that year, killing more than 50 people (both Māori and Pākehā) at the settlement of Matawhero, near Gisborne, before being granted sanctuary in the Urewera district the following year (Waitangi Tribunal, Turanga Tangata, Turanga Whenua Report, Vol. 1, Sec. 5.5). Tūhoe were to suffer terribly for giving shelter to Te Kooti. Scorched earth tactics directed against them saw their homes and crops deliberately destroyed by colonial forces and their cattle and livestock plundered (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 1, Sec. 5.5). Those not killed in the conflict would be starved into submission. Worn out by wave after wave of bloody invasion, in 1871 Tūhoe chiefs reached a crucial agreement with the government, promising to capture and hand over Te Kooti in return for a Crown undertaking to respect their internal autonomy. In this way, although Te Kooti managed to escape, making his way to the King Country in May 1872, Tūhoe's rohe potae or encircling boundary came into existence. 4 māorilawreview.co.nz Māori Law Review October 2014 Whiringa-ā-nuku Local rangatira quickly established a new governing body for their district in the aftermath of the war. Te Whitu Tekau (the Seventy) declared its opposition to land sales, surveys, roads and other tools of colonisation that threatened to undermine Tūhoe independence. But Crown and private agents were already chipping away on the fringes, posing a serious challenge to Tūhoe land and autonomy. The confiscation of valuable lands in which the iwi claimed interests in the Bay of Plenty and further south at Waikaremoana was felt deeply, and the steady erosion of the rohe pōtae that the government had promised to protect in 1871 would have serious consequences for Tūhoe (Waitangi Tribunal, Te Urewera Pre-publication Report, Part 1, Sec.