Muriwhenua Fisheries Claim / SOE Claim

A 1 Appendix 1

THE MURIWHENUA CLAIM
[see 1.1.1]

IN THE MATTER of the Treaty of Waitangi Act 1975

AND

IN THE MATTER of claims by the Honourable Matiu Rata on behalf of himself and of the members of the Ngati Kuri Tribe; Wiki Karena on behalf of himself and the members of the Te Aupouri Tribe; Simon Snowden on behalf of himself and of the Te Rarawa Tribe: Reverend Maori Marsden on behalf of himself and on behalf of the Ngai Takoto Tribe and by MacCully Matiu on behalf of himself and on behalf of the Ngati Kahu Tribe; all claims also being on behalf of the following groups of Maoris namely Muriwhenua Incorporation, the Aupouri Trust Board, the Ngati Kahu Trust Board, the Parengarenga BC3 Trust, the Runanga o Muriwhenua Incorporation, the Te Rarawa Tribal Executive, the Ngai Takoto Tribal Executive and Murimotu II Trust.

STATEMENT OF CLAIMS

1. That all or any of the abovenamed claimants are likely to be prejudicially affected -

(a) by the ordinances and Acts referrred to in Appendix A

(b) by the regulations, orders, proclamations, notices and other statutory instruments referred to in Appendix B

(c) by the policies or practices adopted by or on behalf of the Crown or proposed to be adopted by or on behalf of the Crown recorded in Appendix C

(d) by the acts done or omitted or proposed to be done or omitted by or on behalf of the Crown recorded in appendix D

and that such ordinances, Acts, regulations, orders, proclamations, notices, statutory instruments, policies and practices, acts and omissions were and are inconsistent with the principles of the Treaty of Waitangi and that appropriate relief by way of statutory and other amendment, change of policies and practices as proposed in such appendices and compensation or otherwise should be awarded.

2. That in the areas traditionally possessed by the claimant Tribes (being generally that area commencing at the Whangape Harbour on the West Coast and including all lands to the North including the Aupouri Peninsula, the Manawatawhi (Three Kings Islands), such areas extending on the East Coast as far south as the Mangonui River (being generally the area within the Mangonui County) together with the traditional fishing grounds within a 25 mile band off the coast of the mainland and Manawatawhi the claimants are entitled to recognition and enforcement of their customary rights and for compensation or other relief in respect of their breach.

2A. That the Claimants make claim to the whole of the lands in the regions referred to in paragraph 2.

3. That the geographic area described in paragraph 2 and the activities performed or able to be performed upon or in respect of it by way of legislation regulations and Crown policy practice acts and omissions require to be examined within the perspective of the Treaty of Waitangi, to be altered as a result of past and continuing failure to comply with it; and that compensation be provided in respect of such failures of compliance as are not now capable of rectification.

4. That the region known as Te Rerenga Wairua be recognised as a national Taonga and be accorded due recognition in the legislation institutions and administration of New Zealand. That the Ngati Kuri and Te Aupouri Tribes be recognised as guardians of the Mauri of Te Rerenga Wairua, such recognition to be formalised by appropriate legislation and administrative procedures.

5. That exclusive title to and possession and use of the harbours, sea coasts, on-shore and off-shore fisheries (including claims to take the Rawa-Whenua and Rawa-Moana including shellfish and other marine life and other fauna) in the areas described in paragraph 2 are and should be recognised as among the Taonga of the claimants and given effect by legislation and administrative arrangements; and that since they have not been given effect in the past and to the extent that they cannot be given effect for the future that compensation be provided to the claimants.

6. That existing and past fishing legislation, policies, practices, acts and omissions on behalf of the Crown has failed to comply with and should be examined and reviewed in accordance with the principles of the Treaty, such legislation including Fisheries Act 1983, the Fisheries Amendment Act 1986, the Marine Reserves Act 1987, the Marine Pollution Act 1974, the Continental Shelf Act 1964, the Territorial Sea and Exclusive Economic Zone 1977, the Harbours Act 1950, the New Zealand Ports Authority Act 1968, the Town and Country Planning Act 1977, the Crown Grants Act 1908, the Public Works Act 198l, the Historic Places Act 1980, the Water and Soil Conservation Act 1967 and the Mining Act 1971; such policies and practices including the in shore fisheries management policies published February 1984, the Auckland Region Marine Reserves Plan published May 1985 and the Auckland Fishery Management Plan Phase l, June 1986; that the detriment caused to the claimants and their Tupuna be reviewed; that appropriate legislation and policies be adopted and that compensation or other relief for past and present breaches be provided.

6A. The Crown, in breach of principles of the Treaty of Waitangi

(a) has omitted or refused

(i) to investigate the scope, nature and extent of Maori fisheries and fishing rights; and/or

(ii) to record and maintain the record of the results of any such investigation; [and/or]

(iii) to establish and maintain systems for protecting such fisheries and enforcing such rights.

(b) has embarked on and implemented legislation, policies and practices, acts and omissions calculated to interfere with such rights; and as a result the claimants are likely to be prejudiced.

7. That the creation of Independent Transferable Quotas by current policy does not provide for the claimants, contrary to the provisions of the Treaty, and that relief should be accorded the claimants as follows:

(a) by recognising the exclusive rights of the claimants in the areas referred to in paragraph 2; and

(b) insofar as such exclusive rights are to be interferred with or withdrawn by granting the claimants compensation, including compensation by the grant to the claimants of quotas or other sufficient compensation in a manner conforming to maori custom and tradition

8. That the customary title and other rights of the claimants (including those of management and control) in respect of sea, harbour, coastal waters, coast line, fisheries, (on and offshore and including shellfish) lands, estates, forests, coal and other minerals in the area described in paragraph 2 together with all other rights and interests recognised by the Treaty in respect of the claimants' Tribal areas be recognised and confirmed and either restored by changes of legislation and other public documents and practices or made the subject of appropriate compensation (including compensation for past breaches) or both.

9. That in recognishing the proprietary and other claims of the claimants and in determining the appropriate method of affording compensation for loss of or impairment to customary rights the concept of guardianship by the claimants be considered.

10. That the impairment to wildlife by past policies and the failure to recognise Maori interests and rights be recognised and rectified for the future by appropriate policies with compensation for past or continuing breaches.

11. That the quality of the water of the streams, lakes, harbours and coast line of the areas described in paragraph 2 be reviewed and that impairment of such quality permitted by legislation or resulting from legislation regulations policies or practice acts or omission be rectified and that compensation be provided for past losses caused by breach of the principles of the Treaty of Waitangi and for such continuing loss as cannot be avoided.

12. That in respect of the Parengarenga Harbour and other areas similarly affected land use patterns be altered so as to restore the water quality and harbour standards to their original quality.

13. That the effect on the structure of the harbour of the silica sand operations be examined and appropriate measures taken to ensure that the ecology of the harbour and its physical structure are protected. Insofar as this is not achievable compensation be provided.

14. That the legislation and practices in relation to fishing and management of coastal and harbour lands (including farming and land development practices) by parties other than the claimants be examined with a view to restoring the original extent quality and character of fish and marine life (including shellfish) and failing such achievement to provide appropriate compensation.

15. That the relationship between the Aupouri Trust Board and the Crown in relation to the taking of silica sands be reviewed and that compensation be paid for any deficiency in equitable provision for the claimants.

16. That the spiritual significance of the Ninety Mile Beach be appropriately recognised in legislation and departmental practices.

17. That the title of the claimants to the Ninety Mile Beach be recognised and given effect.

18. That the customary rights to fish and to take shellfish from the Ninety Mile Beach be recognised and given effect.

19. That the claimants' rights to control and manage the Ninety Mile Beach be recognised and given effect.

20. That compensation be paid for the damage to the claimants caused by the licensing of commercial toheroa operations and the creation of a public highway along the Ninety Mile Beach. Compensation to be paid for any shortfall in restoration and for past losses.

21. That the causes of impairment of the quality of the Ninety Mile Beach, including the afforestation of Crown land adjoining it and the passing of traffic along it be examined and steps taken to restore the original condition of the beach, compensation to be paid for any shortfall in restoration.

22. That the depletion of fish life along the Ninety Mile Beach and elsewhere around the coast line be examined and measures taken to restore the same. Compensation to be paid for any shortfall in restoration and for past losses.

23. That the existing structure of administration, legislation and institutions including the Local Government Act, the Town and Country Planning Act, the Reserves Act, the Land Act, Water and Soil Conservation Act and the other Statutes referred to in the First Schedule be reviewed to determine the extent to which they fail to comply with the principles of the Treaty of Waitangi and that they be appropriately amended to take its principles and values into account and in order to bring Maori values into account in New Zealand life.

24. That the Historic Places Trust, Antiquities and other legislation at present in force be reviewed so as to recognise the Maori interests in Pa sites, burial sites and other features of significance (including those recorded in Regulation 38(3) of the Survey Regulations 1972 (SR 1972/264).

25. That the legislation as to Maori land tenure be reviewed and amended so as to:

(a) give effect to Maori custom and practice

(b) facilitate the investigation of Maori land issues

26. That the title of geographical features in the area referred to in paragraph 2 be reviewed and that any necessary amendment to the Geographic Board Act 1946 be made to facilitate such procedure.

27. That the nature of land tenure in:

(a) Te Rerenga Wairua

(b) the other areas of land within paragraph 2 thereof

be reviewed to give due effect to Maori values and the principles of the Treaty of Waitangi and any necessary statutory and other amendments be made in consequence.

28. That by reason of breach of the principles of the Treaty of Waitangi, lack of authority, breach of duty, unlawful or improper conduct affecting the Claimants, inadequacy of consideration the following parcels of land or shares should be restored to the Claimants and/or they be compensated for such breaches:

(a) The area of Cown Land known as "North Cape Scenic Reserve" including the Lighthouse Reserve; the land at Cape Reinga taken for defence purposes and for lighthouse purposes; the land at Te Reinga taken for defence purposes; Motu-o-Pao Island; Manawatawhi; the area known as "Taylors Grant", the shares in Te Neke block and Mokaikai block.

(b) The following parcel of land or shares in the area known as the Parengarenga lands being those lands, interests and shares in respect thereof the subject of the Parengarenga development scheme insofar as such lands, interests or shares therein were compulsorily acquired by the Maori Trustee. By way of relief the Claimants seek the return to the relevant Tribes of such lands, interests and shares without consideration.

(c) the area formerly known as Muriwhenua Block containing originally 56,000 acres

(d) the area known as Murimotu and that its royalties be accounted for to the claimants

29. That there be an enquiry as to the extent to which and the circumstances in which the original land of the claimants and their Taonga passed into other and particularly Crown hands; for restoration of such land as ought properly to be restored to the claimants and for compensation for the deficiency and for past exclusion from the area of difference.

30. The claimants claim return of the forestry lands, together with a review of the leases to the Crown of forestry lands and the consideration receivable in respect thereof; that the vesting of such lands in the Forestry Corporation and the policy of the Crown leading to such vesting, are prejudicial to the claimants and should be reversed; a reduction of the term of the lease to the duration of a single rotation; for payment of equitable remuneration; and for compensation in respect of any deficiency.

31. The claimants claim compensation in respect of the disruption of their Iwi; the social dislocation which has occurred as a consequence of legislation and Government policies; and for the taking of measures dealing with the social issues of unemployment and loss of Mana; and for compensation by way of policies, practices and funding appropriate to restore the Mana of the Tribes; the education and training of Tribal members.

32. The claimants claim compensation for the costs of preparing and submitting the present claims.

33. If the Tribunal lacks jurisdiction to make appropriate orders as to costs and disbursements the claimants claim by way of relief amendment of the Treaty of Waitangi Act to empower such provision to be made.

DATED this 8th day of December 1986

This Statement of Claims is filed by Robert Gordon Whiting whose address for service is at the offices of Messrs Connell Lamb Gerard & Co., Rathbone Street, Whangarei.

APPENDIX A

Antiquities Act
1975 Burial & Cremation Act 1964
Continental Shelf Act 1964
Crown Grants Act 1908
Deeds Registration Act 1908
Fisheries Act 1983
Fisheries Amendment Act 1986
Forestry Encouragement Act 1962
Geothermal Energy Act 1963
Harbours Act 1950
Historic Places Act 1980
Land Act 1948
Land Draingage Act 1908
Land Transfer Act 1962
Local Government Act 1974
Maori Affairs Act 1963
Maori Vested Lands Administration Act 1954
Marine Farming Act 1971
Marine Reserves Act 1971
Mining Act 1971
Ministry of Agriculture & Fisheries Act 1953
Nature Conservation Council Act 1962
New Zealand Constitution Act 1852
New Zealand Geographical Boards Act 1946
New Zealand Planning Act 1982
New Zealand Walkways Act 1975
Public Works Act 1928 and 1981
Reserves Act 1977
Rivers Board Act 1908
Sand Draft Act 1908
Soil Conservation & Rivers Control Act 1941
Surveyors Act 1966
Swamp Drainage Act 1915
Territorial Sea and Exclusive Economic Zone Act 1977
Town and Country Planning Act 1977
Water & Soil Conversation Act 1967
Animals Protection & Game Act 1921 - 1922
Crown Grants Act 1866
Harbours Acts of 1866, 1878, 1908
Land Acquisition Emergency Regulations 1945
Land Acts of 1892 and 1908
Native Lands Act 1862, 1865, 1867, 1873, 1886, 1894, 1909
New Zealand Land Claims Ordinance 1841 & Victoria Session I No.2
Native Land Courts Acts of 1862, 1865, 1867, 1873, 1880, 1886 & 1894
Native Lands Frauds Prevention Act 1870
Reserves & Domains Act 1953
Waste Lands Act 1858, 1875
State Owned Enterprises Bill (in course of enactment)

APPENDIX B

Motuopao Island

1. Action in notifying Native title extinguished over "the islet adjacent to and situated to the north-west of Cape Maria Van Dieman and bounded on all sides by the sea, Refer Gaz 1875 p.181.

2. Reserving to H M the Queen by order in Council pursuant to the provisions of The Waste Lands Act 1858 the island now known as Motuopai Island. Refer Gaz 1875 p.18l.

3. Changing pursuant to the provisions of the Reserves & Domains Act 1953 the status of the reserve from a reserve for lighthouse or other purposes of the General Government to a reserve for the preservation of flora and fauna.

Three Kings Islands

1. Proclamation 4 July 1908 declaring Three Kings Islands as Crown Lands reference in Gazette 1908 p.1815.

2. Declaration of Three Kings Islands as a Sanctuary referenced in Gazette 1930 p.666.

3. Setting apart Three Kings (Manawatahi) as a reserve for the preservation of flora and fauna, Gazette 1956 p.39.

Ninety Mile Beach

1. Declaring beach to be a public road.

Muriwhenua

1. Acquiring Te Neke Block in 1968 and declaring land to be Crown Land pursuant to Gazette Notice 1969/107.

2. Lack of enforcement and lack of recognition of the provisions of the Native Lands Frauds Prevention Act 1870 and improper care and duty by Crown Commissioner appointed under the Act.

3. Registration of land transactions in title system by the Crown and its agents when such transactions were invalid due to lack of jurisdiction by the Crown.

4. Improper use of the provisions of the Public Works Act 1928 and the Land Acquisition Emergency Regulations 1945 - refer Gazette Notices 1944 p.357, 1945 p.568 and 1945 p.1555.

5. Setting apart land for recreation reserve - refer Gazette 1984 p.2925.

6. Declaring certain lands at Cape Reinga for lighthouse purposes - refer Gazette 1983 p.485.

7. Gazetting land at Cape Maria van Dieman for lighthouse purposes - refer Gazette 198l p.1904.

Whangakea Block

1. Setting apart block as recreation reserve subject to the provisions of the Reserves Act 1977 - refer NZ Gazette 26.7 1984 p.2862.

Taylors Grant

1. Granting to Richard Taylor that area of land known as "Taylors Grant" comprising some 852 acres and referred to in Deeds Index I H 600 such grants being made by the Crown and its agents without authority such land being already occupied and owned by Maoris.

2. Setting apart the land as a recreation reserve pursuant to the provisions of the Reserves Act 1977 - refer Gazette Notice 1984 p.2862.

Murimotu

1. Actions of the Native Land Court under the provisions of s.107 of the Native Land Act 1873 ordering 1706 acres and referred to as Murimotu No.l to be ceded in Her Majesty Queen Victoria.

2. Actions of the Native Land Court under the provisions of s.107 of the Native Land Act 1873 in limiting in number to three, the owners of the land known as Murimotu No.2.

3. Action taken in July 1879 declaring Murimotu No.l to be waste lands of the Crown, refer Gazette 1870 p.966.

4. The reservation of the site for lighthouse comprising some 35l acres (North Cape lighthouse) - refer Gazette 1879 p.159l.

5. Issuing mining licences in the area defined by SO.54360.

6. Reserving s.l Block v North Cape S.D. as the North Cape Scenic Reserve - refer Gazette 1964 p.1179 and as a Scientific Reserve - refer Gazette 1980 p.3327.

Mokaikai

1. Actions of the Native Land Court under the provisions of the Native Lands Act 1873 granting 10823 acres known as Mokaikai Block to Francis Sinclair.

2. Registration of land transactions in title system by the Crown and its agents when such transactions were invalid due to lack of jursdiction by the Crown.

3. Classifying land as Scenic Reserve subject to Reserves Act 1977 - refer Gazette 2.8 1984 p.2925.

APPENDIX C

1. Auckland Region Marine Reserves Plan
Prepared by Fisheries Management Division
Ministry of Agriculture & Fisheries
Auckland May 1985
As to proposals, implementation and enforcement of proposed marine reserves contained in this document.

2. Auckland Fishery Management Plan
Draft Discussion Paper Phase 1: Fin Fish
Prepared by Fisheries Management Division
Ministry of Agriculture & Fisheries June 1986
As to proposals to restrict, prohibit and control the taking or management of fish as contained in this document.

3. Coastal Reserves Investigation
Report on Mangonui County
By Department of Lands & Survey 1980
As to reserve proposals contained in this document.

4. Te Paki
Lands Use Committee Report
Prepared by the Te Paki Land Use Committee
Department of Lands & Survey June 1979
As to land use and management proposals contained in this report.

5. New Zealand Forest Service
As to future management and utilisation options and land tenure options for the forests and associated lands and facilities under the control of the Service and/or its successor.

6. Ministry of Transport
As to the issuing of licences for sand extraction.

7. Ministry of Agriculture & Fisheries
As to the issuing of licences for catching fish, gathering seaweed and other products of the sea and to the issuing of shell fish licences.

8. Other Government Departments or Agencies
As to the issuing of licences in terms of minerals including coal.

APPENDIX D

1. Any acts or omissions relevant to the matters pleaded being 1 to 31 inclusive in the Statement of Claims.