Disputed land legacy

Sir Hugh Kawharu brokered the $90 million deal with the Crown and helped to corporatise Ngati Whatua o Orakei. Picture / Derek Flynn

Form over substance. The phrase hangs heavily in the air of the Hoani Waititi wharenui on the day Sir Hugh Kawharu died. It is not his epitaph. That reads: paramount chief of Ngati Whatua; distinguished academic; scholar and gentleman; whispering giant; our totara; our pillar; a man of great mana who conducted himself with immense dignity; a man of knowledge in both the Maori and Pakeha worlds.

The announcement at 1pm - "Sir Hugh Kawharu has just passed away" - evokes a cry of shock and sorrow, and a brief adjournment of the Waitangi Tribunal hearing.

But there is also grief of another kind.

"Is the process fair? I say emphatically no." Russell McVeagh lawyer Paul Majurey is talking about the Crown's "agreement in principle" to give exclusive land rights on the Tamaki isthmus to Ngati Whatua o Orakei. An agreement that's supposed to be conditional on a consultation process with other iwi to resolve overlapping land claims, but which Majurey, who represents and descends from the Marutuahu tribes of Ngati Paoa, Ngati Maru, Ngati Whanaunga and Ngati Tamatera, says is little more than going through the motions - form over substance.

He's not alone. At least four other iwi - Te Kawerau a Maki, Ngai Tai Ki Tamaki, Ngati Te Ata o Waiohua and Te Taou - are also contesting the agreement and claiming prejudicial treatment. That's eight tribes saying they are not getting a fair go. Two others suggest the problems may be resolved with more discussion, but only if the Crown agreement is substantially changed.

Out of respect, no one mentions it was Sir Hugh who brokered the controversial $90 million deal with the Crown. Or his part in corporatising a modern Ngati Whatua o Orakei by defining the founding tupuna (ancestor) as Tuperiri - much to the consternation of the Te Taou people, who say it's a whakapapa that excludes them and Wahaakiaki, the rightful conquering chief of Auckland.

Neither is there any reference - although everyone is aware - that one of the cross-claimants also holds the Kawharu name.

Are they related? Some say Sir Hugh was Lou Paul's (Paora Kawharu's) uncle. Paul says that at best they are distant cousins.

He will not be attending Sir Hugh's tangi. "He refused to talk to me in life, so I don't want to talk to him in death," Paul tells those who ask outside the meetinghouse.

Much is unspoken on the marae. But simmering discontent is palpable, which is perhaps why Judge Carrie Wainwright - after the phalanx of lawyers outline their positions - opens discussion from the floor. "History is being told that needs correcting," says one. "If the Crown doesn't get this right it will be revisited in the future," says another.

Someone else raises the issue of hapu (sub-tribe) being locked out of land claims by iwi (tribal) groupings, and that the concept of iwi as an organising force is wrong. "Iwi was a word brought in. Hapu - those are the grass roots." A chorus of "kia ora" lends support. Another tells the judge the Crown has been wrong all the time. "There hasn't been a time when it hasn't been wrong."

There is debate about claimant definitions: "We are not overlapping - you say we are overlapping." And about the system. "The process seems to be in reverse. This [discussion] should have been done ages ago before Crown entered into agreement [with Ngati Whatua]," says Pamera Warner, another Te Taou claimant.

So much to say. So many voices wanting to be heard. But as Judge Wainwright pointed out after the powhiri when everyone is seated in the wharenui, the whys and wherefores of who has land rights in Tamaki Makaurau are not on the agenda.

"This is not the hearing about what the Crown has done wrong in its negotiations about Auckland. This is the hearing about whether there should be such a hearing." Welcome to the Waitangi Tribunal - a uniquely New Zealand institution, part court, part theatre, part hui and charmingly convoluted.

The powhiri is a little unusual.

Hoani Waititi, an urban marae in Glen Eden, has been chosen as neutral ground and all the iwi, including Ngati Whatua, the Crown representatives, and the Tribunal are welcomed onto the marae as manuhiri (guests).

Te Taou is the last to go on and is led by one of Lou Paul's sons, Ropata Paora. He carries a taou (spear) which he exchanges, palms up, with the warrior issuing the tangata whenua's (host's) challenge. It's a message of peace.

"It also says our tribe is still alive and well. And as a gift to the marae from our people - it is to return something to a place that has nurtured myself within the art of Maori weaponry," explains Paora.

His message to the Tribunal is more direct. If the agreement with Ngati Whatua goes ahead it will cause more grievance. "There is no way I or any of my descendants will let this slide."

Judge Wainwright has called the judicial conference in response to three urgent applications - first Te Taou, then the Marutuahu tribes and Ngati Te Ata o Waiohua. All want the Tribunal to intervene in the process the Office of Treaty Settlements has followed in its negotiations with Ngati Whatua. They argue that Settlements has breached the principles of the Treaty by negotiating unfairly with one tribe at the expense of others.

Te Taou says the negotiations are with the wrong tribe. That it was the conqueror of Tamaki in the late 1700s (a point historians don't argue about) and that Ngati Whatua o Orakei is an artificially created entity that does not, and cannot, represent Te Taou.

Marutuahu and Ngati Te Ata say despite what the Crown and Ngati Whatua say, there has been no proper consultation on their overlapping claims to the Tamaki isthmus.

They and other iwi are particularly concerned about the Crown proposing to confer Ngati Whatua exclusive mana whenua rights to the Tamaki isthmus. Plus first right of refusal to buy all "land banked" - Crown properties that come up for sale - a deal that forever locks out other iwi from settling their own claims to land in that area.

Hellbent on settling, the Crown tells overlapping claimants they should negotiate their concerns with Ngati Whatua. Claimants say efforts to do so are stonewalled.

There is concern too about Ngati Whatua being given guardianship of the mountains of the isthmus - particularly Maungakiekie (One Tree Hill) and Maungawhau (Mt Eden) which have particular importance and association for many Auckland tribes.

The tribes are also deeply troubled that the official history that forms the cornerstone of the agreement is not just a biased Ngati Whatua o Orakei history but also, in parts, plainly wrong. But none of this can be discussed in the hearing about whether there should be a hearing. Judge Wainwright explains that the Tribunal's focus is on the Crown's process.

That the way it goes about negotiations must be fair, and that it must not disadvantage others.

She points out there is always a queue in Treaty negotiations and as a consequence some people are in the front of it at any given time.

For an urgent hearing to happen, the Tribunal needs to be sure "significant and irreversible harm" will be caused to claimants if the present process continues.

After lunch, Judge Wainwright takes off her boots and leaves them on the wharenui porch along with everyone else's footwear.

She sits at a table at the far end of the wharenui with lawyers and officials at tables arranged in a U-shape on either side.

The public sit at the entrance end of the meetinghouse on rows of folding plastic chairs.

Unlike a traditional court it's a public gallery that has leeway to interact. Kia oras, groans and other comments provide a steady stream of feedback.

It's a process the Pakeha judge keeps under control with firm words - often in fluent Maori.

She asks Crown lawyer Virginia Hardy to explain what the Crown is doing and why it believes the process is on track.

Not surprisingly, the Crown opposes the applications for urgency.

"This is a work in progress," Hardy says. "No decisions have been made by the Crown in terms of overlapping interests."

As far as the Crown is concerned, Te Taou is a part of Ngati Whatua o Orakei and Lou Paul is a descendant of Tuperiri. Loud disagreement erupts from the gallery.

Ngati Whatua lawyer Te Kani Williams squirms under Judge Wainwright's grilling.

Judge Wainwright: Are there some other lines that don't whakapapa to Tuperiri?

Williams: Yes.

Judge Wainwright: Are there members of Te Taou not covered by this definition?

Williams: There may be.

Judge Wainwright: Are all Te Taou descended from Tuperiri?

Williams: No.

Robert Ferguson, for Te Taou, asserts that the common tupuna of Te Taou is Toatara, not Tuperiri.

He says that grouping Te Taou with Ngati Whatua is a convenient way to marginalise the tribe because anything it raises can be simply outvoted.

He says Te Taou is in an impossible position. Repeated requests to talk to Ngati Whatua are ignored and the Crown has provided no process for Te Taou to formally present its historical evidence.

Judge Wainwright: Are you requesting an urgent district inquiry?

Ferguson: Yes.

Judge Wainwright: Well Mr Ferguson, they don't happen (explaining that an Auckland-wide inquiry would take more than a year, would have to deal with vast numbers of submissions, be extremely expensive and that the Tribunal doesn't have the resources to run one).

Stephen Clark for Te Kawerau a Maki, says: "We categorise the process as perfunctory."

Consultation with the Crown has been little more than five or six pieces of correspondence over a four-year period.

And a hui called by Ngati Whatua in 2004 gave overlapping claimants just half an hour to talk and restricted the topic to: "Unfulfilled promises from the Crown to Ngati Whatua o Orakei."

Claimants were not impressed.

Clark questions why research by historian Bruce Stirling, which forms the basis of the "Agreed Historical Account", has been withheld - despite requests under the Official Information Act - for three years.

"Why was the research not available to be perused by the other claimants?" says Judge Wainwright.

The reason - because Ngati Whatua viewed the history as commercially sensitive and didn't want it released - creates some gasps of incredulity.

There is more astonishment when the Crown reveals it has some historical reports of its own but hasn't released them because no one asked for them.

Marutuahu lawyer Paul Majurey points out that the statement is at odds with his own requests under the act, three years ago, which sought any historical reports used in reaching the agreement in principle.

He also asks why the Crown is still withholding a referenced version of the Agreed Historical Account.

Without such a document - with footnoted historical sources - a proper assessment or challenge to the agreed history is impossible.

"One has to wonder how meaningful this so called substantive history is going to be," Majurey says.

He is still waiting for a response to an alternative historical report by historians Michael Belgrave and Grant Young provided to the Office of Treaty Settlements in April.

That report paints a very different historical picture of Auckland - one where several different tribes coexist on the isthmus.

Liz Cleary, for Ngati Te Ata, tells a similar story of unsuccessful attempts since 2003 to negotiate with Ngati Whatua, and a lack of a clear process by the Crown to deal with the iwi's overlapping claim. Ngati Whatua's lack of interest in negotiating with cross-claimants is evidenced by a timetable on its website, Cleary says. That shows the tribe is sending a postal ballot to its members this month to ratify the agreement with Crown.

The hearing about whether there should be a hearing draws to a close just after 5.30pm with a hymn. Much has been said about what the Crown has done wrong in its negotiations about Auckland - despite Judge Wainwright's direction that it is not what the hearing was about. An impasse. Will an urgent hearing be granted? Is there a fair process the Crown can follow? Judge Wainwright reserves her decision.

A sense of injustice, of grievance, remains in the wharenui air. That's mixed with assertions by the Crown and Ngati Whatua that they have acted by the book.

Plus a sense of loss that the architect of this agreement - Sir Hugh - is no longer here to guide its passage.